Employee handbooks are not enforceable.  They have not been enforceable since the early 1990’s.  In the early 1990’s, after a few court decisions, Texas employers realized they had to include a disclaimer in each handbook stating that the handbook is not a contract.  Employers wanted employe handbooks to not bind the employers.  Much of what makes a good handbook does not make for a good contract from the employer’s perspective.  There were one or two cases in the late 1980’s in which employees successfully argued that they had not been warned three times prior to termination, as required in the employee handbook.  So, their terminations were overturned.  Employers responded with clauses making the handbook not binding and not contractual. 

Then comes this movement to send disagreements to arbitration.  Employers thought arbitration would be cheaper and faster than lawsuits.  So, they sought to make arbitration the default forum for disagreements in the workplace.  But, how do you have a binding arbitration in an employee handbook that has a disclaimer?  That is, how does one make a non-binding handbook binding, sort of, sometimes, maybe?

Easy.  Include a phrase that sets the arbitration clause apart from the rest of the handbook, so that only the arbitration clause is binding.  This is what has lead to the Hatton v. D.R. Horton case.  See report.  The Texas Supreme Court has asked the parties to provide briefing on the issue, which usually means the court will consider the issue.  The Texas Supreme Court has been very supportive of large corporations and employers for many years.  And, the movement to take disagreements to arbitration, for everything from buying a car to workplace complaints is still strong.   So, the chances of success for the employee in Hatton v. D.R. Horton are slim indeed. 

I served in Iraq for a year and devoted 28 years of my life (mostly part-time as a Reservist) to the military. So, seeing signs like "Thank God for Dead Soldiers" at a funeral for a dead soldier angers me beyond belief.  See news report.  I cannot understand a church that openly, proudly protests at many, many funerals for service members killed in the two wars.  I practice civil rights law, so have some understanding of civil rights.  The First Amendment is a critical part of our laws and heritage.

The First Amendment has rarely been limited.  The most well known limitation came in a 1919 case, Schenk v. United States, in which Justice Oliver Wendell Holmes said that falsely yelling fire in a crowded theater was not protected speech.  See court opinion.  Justice Holmes offered this as an example of speech that would not protected by the 1st Amendment.  

This Westboro Baptist church case will be very difficult for the Supreme Court to decide.  Albert Snyder, the father of the slain soldier, Michael Snyder, rightly points out that this church took away his right to a private, mournful funeral.  Even though, the funeral procession was guided away from the protesters and the protesters were done by the time the funeral started, the father became aware of the protest within a month when he was researching his son’s death on the internet.  He sued the church for intentional infliction of emotional distress and was eventually awarded $5 million in damages.  The court of appeals overturned the verdict saying the church was exercising its right to free expression. 

Now, the appeal is before the US Supreme Court.  In oral arguments today, the justices indicated they were having trouble with this case.  What are the limits of free speech?  Free speech cannot be based on popularity.   There is no need for a government protection for popular speech.  It is the unpopular speech that needs protection. 

The Schenk decision indicated that one limit would be public harm.  Free speech should not extend to speech which causes panic and endangers lives.  It seems to me that some speech can be so provocative that it endangers lives.  But, I am told by those more learned in First Amendment cases that the Supreme Court has already rejected that attempt to limit free speech.  Recall the case concerning the Neo-Nazis who appealed and won their right to march in a Jewish neighborhood in Chicago.  Their march was also likely to provoke violence, but the Supreme Court, I am told, rejected that argument.  

I am sure the tiny Westboro Baptist church is concerned for their own safety.  They may be the most unpopular church in America.  In this case, I have to speak more as a former soldier.  If they picketed the funeral of one of my soldiers, I would not wait for any lawsuit to take appropriate action.  

 Its a sign of the times.  Employee is out sick and the employer calls to pressure the employee to return to work asap.  See story.  A woman was recovering at home from a double mastectomy.  The manager at the crafts store, Michaels, called her several times asking when she could come back to work.  Kara Jorud was torn between fears for her job and the need to recover.  Eventually she went back to work much sooner than the the three months to which she would have been entitled under the Family Medical Leave Act.  

She could barely lift her arms across her chest when she returned to work.  She asked her husband to come in one day to help her lift boxes.  She was then fired for this breach of company policy.  

Fortunately, even in bad times, the nation’s discrimination laws still apply.  So, folks like Mrs. Jorud at least have a choice.  

Ms. Jorud was one of the lucky few.  She won her lawsuit and was awarded $8.1 million.  As I tell my clients, yes, it is unpleasant when the boss calls you and pressures you.  But, that sort of pressure can become very good evidence later.  The court found that the employer’s actions violated the Family Medical Leave Act. 

In a 2001 poll by the Department of Labor, almost one-third of workers said they did not take leave even when they felt they needed it because they feared they would lose their jobs. In the MSNBC poll accompanying the story, 62% of respondents said they felt pressure to not take time off for medical needs in this difficult economy.  

 Christine O’Donnell, the Republican nominee for Senate in Delaware, has further problems with her resume.  She claims on her Linkedin page to have taken a course at the well-known Oxford University in Emgland.  Well, not quite.  What she actually took was a course from Phoenix University, a well-knwon for-profit school, at Oxford.  Phoenix rented space from Oxford University. Phoenix U. had a summer program at Oxford in 2001. See report.  

She also claims to have taken a course at the prestigious Claremont Graduate University in California.  Well, perhaps not.  Claremont Graduate University has no record that she attended the school at any time.  But, a Claremont Institute, a conservative think-tank did award Ms. O’Donnell a fellowship in 2002. Claremont Institute is not connected to the much better known Claremont University. Claremont Institute is also located in Claremont, California.  

It was just a few weeks ago that we learned that Ms. O’Donnell had claimed for years to have graduated from Farleigh Dickinson University.  But, she actually only received her degree on Sept. 1, 2010.  

The problem with padding a resume is that it stays with you.  You may think it will help get a particular job or position.  But, it becomes difficult later to leave those bogus qualifications behind when you later move on to some other job. 

The work place can be a very dangerous place.  Workplace Prof presents a scenario that concerns another unnamed professor.  See post.  Workplace refers to another blog at: suburbdad.blogspot.com/.  Well, since Dean Dad posted the original post at his blog, Community College Dean, Dean Dad has taken back down the post at the request of the original professor.  I bet he did ask that it be taken down.

The kernel of the story remains:  Student takes class from Prof last year. After class is over, student and Prof date and have brief affair.  Affair ends badly.  Student takes another class from unnamed Prof.  Student demands an "A" or else she will reveal all.  The original post by Dean Dad solicited recommendations on what Prof should do.  After a few days, Dean Dad took down the original post. 

If Prof drops the student, then he will be accused of reprisal.  If she does not get an "A," then student will reveal the forbidden affair to the school.

Dean Dad’s advice, now removed, was that Prof should tell the school about the affair and remove student’s leverage.  That is surely the best advice.  

Another word of advice, don’t date students even after the class is over.  The advice pertains to others, as well.  In the military, for example higher ranking officers or NCO’s should not date younger officers or NCO’s even if they are not in your chain of command.  They may be in a different unit today but they could be in your chain of command in a month or a year.  Same advice applies to folks in the civilian sector.  Just another employee today could be your employee next year. 

 Trial lawyers treat jurors with kid gloves.  We are extra polite, extra respectful in regard to those citizens who perform their civic duty without complaint.  The pay is low, yet their service is invaluable.  But, what do you say when a juror violates one of the basic  requirements of jury duty?  A trial is a serious thing.  When the defendant could go to prison or worse, it is even more serious.  Yet, during one criminal trial, a member of the jury posted on her Facebook wall that she looked forward to finding the defendant guilty.  She posted this comment while the trial was till ongoing.  See report.  The son of the defense lawyer saw the comment and told his mom.  The mother defense lawyer told the judge.  The judge removed the Facebook poster from the jury and replaced her with an alternate. 

Was the jury member listening to the whole trial with an open mind?  Was she ready to listen to the defendant’s evidence, which always comes last?  We hope so, but her Facebook comments suggest otherwise. 

The juror was removed form the trial soon enough not to cause a mistrial.  But, the juror may well be found in contempt.  

 I try to talk on this forum about employment issues and discrimination in general.  Since I am an Iraq veteran, I also discuss the war from time to time, typically simply to note the death of a local soldier killed in Iraq or Afghanistan.  So, when a local governmental entity itself expresses some form of prejudice, I cannot help but notice.  The Texas Board of Education has passed a resolution to limit references to Islam in future textbooks.  The resolution probably has little binding effect on future boards.  See report.  

But, it sends a message.  I fear the message is that Islam itself is "bad," not just the jihadist extremists.   If the TBOE message is that Christianity is good, I agree.  But, I wonder why do we need that particular message for an agency that chooses text books?

When I returned from the Iraq war in 2006, I could not help but notice some anti-Islam comments here at home in the US.  In Iraq, I served with many Iraqi interpreters.  They took the same risks we did.  Indeed, they probably took more risks, since their families were exposed in ways ours never would be.  And, of course, as some readers know, my interpreter, Salma, was killed shortly after I left the country.  When Ansar Al-Sunna killed her, they warned all other translators working with the US to leave their jobs before "we get you."  Yes, the Ansa Al-Sunna terrorists were very brave to attack and seize a five foot tall woman traveling the long, dusty road from Kirkuk to Tikrit.  

I have written here about an interpreter I refer to as Abdul.  Abdul was a wonderful person and very brave.  He was devout.  Salma was not particularly devout.  Like Christians, Moslems come in many flavors and varieties.  So, I have not been able to understand these broad generalizations about Moslems.  I am glad I will never have to explain these stereotypes to Salma.  But, I fear I might have to explain them to Abdul someday.  

Ironically, Abdul would probably smile, shrug and forgive.  The only Moslems who will profit from anti-Islam prejudice are Moslems like Al Qaeda and Ansar Al-Sunna.  The TBOE resolution is rather "cuckoo" as one member said.  Bit, it will surely aid the terrorist recruiters.  

The Americans with Disabilities act contains provisions requiring businesses and governments to provide accessible facilities.  Title II of the ADA requires that the facilities be accessible to persons with disabilities.  Many, many businesses have not complied with the ADA.  See comparison chart.  Some folks believe incorrectly that if their facility was built before passage of the ADA in 1990, then they do not need to comply.  That is not true.  Title II actually provides that public facilities must be accessible if accessibility is "readily achievable."  See Advocacy, Inc. Fact sheet.    Existing facilities which have received "substantial alterations" are not subject to any grandfather clause and must be accessible. 

Public facility includes everything open to the public: restaurants, hotels, theaters, doctor’s offices, lawyers’ offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers.  In my own experience, even neighborhood association playgrounds or pools must be accessible.  

A large issue is sidewalks.  Are sidewalks a "service or program" of a city such that it fits the Title II requirements?  In a recent decision, the Fifth Circuit Court of Appeals found that sidewalks are not services or programs of the city.  The decision acknowledges that the various federal courts of appeals are divided over the question.  So, the issue will likely come before the US Supreme Court before long.  

In my neighborhood, there are a few folks in wheelchairs who have to traverse the shoulder of a busy Fredericksburg Road because there are no sidewalks.  How long before they have a close encounter with a Mack truck?

In a recent class action against Burger King, the company had to pay as settlement $5 million in damages and $2.5 million in attorney fees for 10 Burger King facilities that were but in the 1970’s and 1980’s.  Burger King tried to argue that since they were built before passage of the ADA, their facilitiers did not have to comply.  But, each of the 10 Burger King’s had major alterations over the decades.  The plaintiffs claimed the facilities were not accessible to wheelchairs and scooters.  As our population ages, this will become more and more an issue.  See post.  The class action lawsuit was filed in the northern district court of California. 

 

 I hear this concern every so often from potential employee clients.  They are concerned that they do not have "proof" that the employer said such and such.  Sometimes, this concern stems from something a general practice lawyer asked.  General practice lawyers ask various questions, often simply because they do not know what to ask about potential employment cases.  Employment lawyers on behalf of employees are hard to find.  So,  many or most potential employee clients meet with general practice lawyers or personal injury lawyers before finally seeing an employment lawyer.  

In employment cases, circumstantial evidence can succeed.  In fact, sometimes circumstantial evidence can be overwhelming.  

There are basically two ways to prove a discrimination case: 1) Employer tells the employee directly that s/he is being fired because they are the wrong color, wrong ethnic background, wrong gender, have a disability, etc., or 2) an adverse personnel action occurs for which there is no reasonable explanation.  If we rely on the second method of proof, then there needs to be some evidence of improper motive, such as jokes about race, ethnic origin, gender, disability or whatever.  

Regarding either method of proof, the employer will typically claim in a lawsuit that the worker had performance issues.  The employer might claim to have written or verbal warnings.  if so, then we get into the issue of comparatives.  That is, were other employees fired or disciplined for same or similar offenses? 

There is a third method known as statistical proof, but statistics rarely succeed in discrimination cases.

So, yes, circumstantial evidence is often the normal method of proof.  And, yes, the evidence is often "he said, she said."  Over the years, I have had many clients tell me that the employer made this joke about minorities or made that joke about another gender.  That is good evidence.  Even if the employee cannot provide me documented "proof" (whatever that means) that the employer made that statement.

The reality in employment cases is that the employer will always deny such statements.  Current employees will not remember anything.  The few employees who might be willing to testify to what they heard will do so only in court.  That is the norm.  People do not want to risk their jobs for someone else’s case.  

Shoot, its a wonder we win as many cases as we do.  

So, yes, we rarely have third party witnesses to discriminatory statements.  The employer is rarely kind enough to reduce his discriminatory comments to an email.  And, no, we do not necessarily need a witness to "he said/, she said" comments.  Folks always want a more certain answer, but the truth is it all depends…..

I have written here before that high dollar verdicts often indicate a jury became angry about a lawsuit.  In Velez v. Novartis Pharmaceuticals Corp., the jury awarded $250 million in punitive damages.  See posts here and here.  This is the largest punitive damage award in any class action lawsuit, I am told.  Novartis, the reader will recall, was a class action lawsuit alleging gender based discrimination against a large pharmaceutical company.  The case had some damaging statements made by managers, which statements showed anti-female bias.  

It now appears that yes, the manager’s statements were damaging.  But, the lawyer representing Novartis may have had as much as anything to do with upsetting the jury.  It turns out that the lead defense attorney himself said some pretty offensive things.  For example, in his closing argument, he said:

                  

"The first [plaintiff] – first of all, I’ve never seen anybody cry so

much on the witness stand in my life. She didn’t have very much to cry about.  The first thing that was said to her, according to her, was: ‘Can you give me two good years before you get pregnant, Tara?’ And she could hardly get that out on the witness stand. It’s like she had beeen knifed. Honsetly. What was wrong with this woman? She was so fragile. And she cried all through her testimony. Nothing bad ever happened to her. She just didn’t get entered into the managment development program."

The defense lawyer essentially made fun of the first employee because she cried so much. Conventional wisdom holds that juries lose sympathy for witnesses who cry too much.  If so, this particular defense lawyer reversed that dynamic completely.  

He did worse than that.  The defense lawyer also said in his opening statement, the part of the trial where he introduces the jury to his case, that one manager who said some pretty bad things "wasn’t that bad a manager.  He was just terrible with women."   

Members of the jury always start a little annoyed.  They do not want to be there.  Jury service is critical to our democracy.  But, most jury members would prefer to be home taking care of kids, or be at work protecting their jobs.  Not at court listening to someone tell them that one of the main harassers was really ok, except for a little gender bias thing.  

He also discussed in his closing the merits or lack of merits in one woman trying to confront the man she said raped her.  "If I were a woman, the male, older defense lawyer said, "I would not have done that."  Later, he essentially admitted there was some assault on the women employees.  That is, they had been touched inappropriately, and worse.  But, as he said, "it was not because she was a woman.  It was not because she was assaulted.  It was just dumb."  He referred to some of the managers as "idiots."  

So, after a month long trial concerning thousands of women victims, the best the defense can argue is that what they did was "dumb" and the managers were "idiots."   Yes, jury members do get annoyed when they think they have spent a month away from jobs, away from families simply because management was "dumb."  That is when juries award large verdicts.  

As I explain to my clients, most defense lawyers manage bad facts much better than this.   Typically, a good defense lawyer finds a way to apply the best spin to any set of bad facts.  With good coaching, most witnesses at least sound better, even if the facts themselves do not improve.  So, yes, it is not realistic to ask for $250 million in punitive damages as a settlement offer, I tell my employee clients.  A big part of my job is educating clients about the realities of what to expect from a jury.  But, lawyers like this defense lawyer for Novartis Pharmaceuticals make my job so much harder.