Barratry is generally defined as a lawyer illicitly seeking clients.  A lawyer cannot solicit clients directly.  So, one state legislator has decided the best way to avoid barratry is to allow more lawsuits.    Sen. Robert Duncan, R-Lubbock, has proposed a bill in the Texas legislature that would allow civil lawsuits against persons (ie, lawyers) who commit the offense of barratry.  See Texas Lawyer report. 

Under the terms of his proposed bill, a victim of barratry could sue the offending lawyer and collect attorney’s fees, costs of the new lawsuit and $10,000 as a civil penalty.  The current offense of barratry only applies to personal injury lawsuits.  But, the proposed bill would widen the offense to all lawsuits. 

I believe you can often discern the better places to work just by walking in the front door.  If employees are willing to chat with a visitor or assist with questions beyond their normal area of expertise, that is probably a positive working environment.  Such a workplace has high morale.  But, if the workers are resistant or guarded in their responses, then that work place probably has low morale.  What happens when some 23 employees take a test and 18 of those 23 cheat on the test?  What does that say about that particular working environment?

23 Bexar Metropolitan Water District took a required test for a Class C water distribution system operator license.  The test is administered by the Texas Commission on Environmental Quality.  It is a standard test for for large municipal water systems.  Achieving the Class C certification means the employee understands how to work on water lines without contaminating the water system.  See San Antonio Express News report.  TCEQ investigated possible cheating and found some test-takers had the answers to a recent test.  

TCEQ decided to void all the tests.  Everyone must re-take that test.  Bexar Met fired 18 employees for involvement in this cheating scandal.  

Bexar Met continues to have many problems.  

 A Houston law firm has sued a former paralegal claiming she and her husband defamed the law firm.  The law firm, Weston & Associates, claims Amber Williams went to a Citysearch website and left a negative review of the firm.  The suit claims the firm fired Ms. Williams for insubordination in 2010. She was fired after less than a month on the job. See ABA Bar Journal report.  

The national unemployment rate has dipped below 9%.  It now stands at 8.8%.  See Workplace Prof report.  This decrease represents a trend of continued, slight improvement over several months.  There still remains many long-term unemployed workers.  Unemployment benefit claims have dropped.  So, we are experiencing slight improvement for a few months, now. 

 So, Rev. Terry Jones finally did burn a Quran at his Florida church just a couple of weeks ago.  Now, Afghanistan is rioting and has killed several United Nations workers – only because this particular mob could not find any Americans handy.  Reports are that the Afghans will attack US bases.  No kidding.  I wish I could say this was a surprise.  Afghans rioted when the Danish newspaper published a cartoon about Mohammed.  They rioted when it was reported that soldiers at Guantanamo flushed a Quran down the toilet.  

When I was in Iraq, we knew there would be a spike in violence simply when issues over Israel developed.  GEN Petraeus specifically asked Pastor Jones to not burn the Quran.  It is unfortunate that some US citizens have forgotten about our soldiers in Afghanistan and Iraq and have knowingly taken steps which increase their risk.  Pastor Jones has displayed his irresponsibility and callousness toward out service members

A former SAWS employee was awarded $275,000 in state district court here in Bexar County.  See San Antonio Express News report. Kevin Martin claimed he was fired because he reported that employees were improperly exposed to asbestos pipes. The Texas Commission on Environmental Quality investigated and found violations. Sounds like a whistle blower lawsuit. 

As always, the employer claimed they fired the employee for other reasons. SAWS plans to appeal. San Antonio water System also lost a jury decision a few years ago in another large employment verdict.  That jury verdict was overturned on appeal. 

Nancy Norman has filed suit against her former employer, Ebbay Halliday Realtors, Inc., in Dallas district court for discrimination based on her disability. She filed suit under the Texas Commission on Human Rights Act., the Texas equivalent of Title VII of the Civil Rights Act.  See Texas Lawyer report.  Ms. Norman was fired after ten years of employment and 37 days after disclosing her diagnosis, inverse psoriasis, a skin disorder.  Ms. Norman’s doctor told her to wear shorts to work and change once she arrived at work.  Her disorder involves a painful red rash made worse by friction and perspiration.  Her doctor warned her against overheating. The employee told her office administrator about the diagnosis and what the doctor prescribed.

She arrived to work wearing shorts. The office manager, Don Davis immediately told her she cannot wear shorts to work. During the following week, Mr. Davis allegedly exhibited hostility toward Ms. Norman. He then issued her a disciplinary write-up for dressing improperly for work and general incompetence. When Ms. Norman tried again to explain to him her need to wear shorts to work, he cut her off and said he did not care about her medical issues.  Ms. Norman says she had received letters of commendation in the past. 

Ms. Norman then failed to attend a shower for a co-worker during lunch.  Mr. Davis complained about that omission and sent her home.  He called her at home later that day and fired her. 

It sounds like a good case for the employee. The employer will surely defend on the basis that Ms. Norman was not a productive employee and had other issues. But, if Ms. Norman truly has a write-up for dressing improperly at work after she had been diagnosed, the employer’s actions will appear retaliatory.  Mr. Davis will undoubtedly deny his statements. But, the verifiable evidence will be strong enough that many jury members may accept the plaintiff’s version of events. This is a case which the employer should settle. 

And, requiring attendance at a function during non-working hours?  A possible violation of the Fair Labor Standards Act?  The employer has some problems in this lawsuit. 

 The very large Wal-Mart class action lawsuit is going to the US Supreme Court for review this week.  See CBS news report. The class involves 500,000 to 1.6 million potential plaintiffs. The suit alleges discrimination against women. The suit was initially filed ten years ago in California.  It was most recently the subject of an appeal at the federal Ninth Circuit Court of Appeals in California.  Wal-Mart claims the class involves too many women in too many different positions at Wal-Mart.  If the members of the class are too different, then the class action fails.  The case is said to be the largest employment discrimination case ever.   Betty Dukes, Et Al v. Wal-Mart Stores, Inc.

I have written about this class action here and here.  It was a close 6-5 decision at the Ninth Circuit. In the midst of the appeals, a report was leaked showing Wal-Mart knew it had anti-female practices in place. A major law firm had prepared a report for Wal-Mart noting disparities in how women are hired and paid.  

Of course, to be a class action, the plaintiffs must show their claims are similar. Does the discrimination apply to all women? All female managers? Or, just female clerical employees? The plaintiffs are apparently trying to show the evidence applies to all female employees. If each individual claim is too small, then the employees would never obtain a lawyer willing to accept their case. 

The plaintiffs have several actual, named plaintiffs who include one female manager and one female greeter. In 2001, when the lawsuit was filed,  job openings were rarely posted.  In 2001, only 14% of store managers were women, while 80% of lower ranking employees were women. These numbers are strong, but statistical evidence in itself is rarely enough.  

The major issue appears to be does the plaintiff’s evidence support such a broad class? Twenty other large corporations have filed friends of the court briefs, arguing against class certification.  If the best the plaintiffs could do at the relatively friendly Ninth Circuit is 6-5, then one must wonder about their chances at the relatively employer friendly US Supreme Court. 

In a recent decision, the US Supreme Court ruled that the Fair Labor Standards Act does indeed provide protection for employees who complain or ask about wages orally.  The federal courts have disagreed on this issue for decades.  They all agreed that the FLSA protected employees who complained in writing about wages.  But, several courts found that the 1938 statute did not protect employees who complained verbally.   See Supreme Court decision.  The court voted 6-2 in favor of the employee. 

As the Court pointed out, the act was passed at a time when many workers were illiterate.  Just over 20% of manufacturing laborers in 1940 only had five years of schooling.  It was often simply not practicable to write up complaints in a workplace where work sites were dirty and special clothes were necessary.  Kasten v. St. Gobain Performance Plastic Corp., (3/22/2011). 

And, of course, truly, few employees would have the nerve to complain in writing.  But, many employees do indeed ask simple questions about wages and then suffer reprisal.  One of my clients once noted that a big box store failed to pay overtime to some seasonal employees.  My client simply asked one of the managers if that was kosher?  The client really thought he was just trying to help management and the workers.  Big box store never asked him to return – he was a seasonal employee himself.  If this decision had been issued sooner, that client could have filed some legal action about their reprisal against him.