The national unemployment rate has increased from 9.5% to 9.6%.  See report.  54,000 government jobs were lost during the month of August.  That loss is probably due to the loss of census jobs.  But, there was an increase of 67,000 private sector jobs.  In Texas, the unemployment rate rose slightly from 8.2% to 8.3%.  See report.  But, in San Antonio, unemployment actually went down from 7.7% to 7.6%. 

 Workplace harassment takes many forms.  In the San Antonio Police Department, two police officers stuffed trash in a female co-worker’s mailbox.  They hid her squad car when she needed it. Now, the two male co-workers have been placed on suspension.  See San Antonio Express News story.  One of the male police officers is 31 years old, the other is 39 years old.  Age does not guarantee maturity. They sent derogatory messages to the female officer and about her on SAPD computers.  One officer received a 60 day suspension.  The other received an "indefinite suspension."  He has essentially been fired.  

The news report does not explain what lead up to the pranks and harassment.  But, to risk termination, I hope it was in their eyes a very good reason.  Unfortunately, as I have mentioned in other posts, workplace bullying is more common than it ought to be.  See prior posts.  

 Why would an employer provide grounds for a lawsuit to an employee?  It is hard to fathom, but Bexar Metropolitan Water District has fired a business analyst whose warnings about improper accounting practices were supported by a a consultant.  See San Antonio Express News report. Gilbert Herrera’s warnings were well-reported prior to his termination.  An outside audit confirmed his belief that some $3 million in fees should not have been counted as revenue.  That $3 million, however, was needed so Bexar Met could maintain a higher bond rating.  Bexar Metropolitan has been closely followed for the past several years in the San Antonio media.  The water district has had a great many scandals and lawsuits, lately.  

With that history, why would an employer fire a well-known whistle blower?  My only guess from afar is that most employers who violate known statutes exhibit some degree of arrogance.  The news report suggests that Mr. Herrera has been insubordinate or had a "bad attitude."    That may help the employer in a lawsuit.  I try to tell all my employee clients that they need to be on their best behavior especially after reporting their employer for some violation.  Juries do not always understand the law in a particular trial.  But, they do understand personalities and insubordination. 

As I have mentioned before in this blog, some friends of mine run a chain of sandwich shops.  They have never been sued.  They have a talent for respecting all employees and giving everyone, customer or employee a fair shake.  The few times they run into potential issues, they quickly offer some money and seek a release.  

Bexar Met is run by dozens of people with degrees and training.  They have some 270,000 residential and commercial customers.  They are overseen by an elected board of seven members. Their last CEO was a retired Army lieutenant-colonel.  Despite all the leadership and management training he would have received from the Army, he violated wire tapping laws, as well as sexual harassment statutes.  Yet, my friends with no formal management training and no college degrees exhibit much more talent and leadership than those supposedly better educated.  

Mr. Herrera says he is looking for a lawyer.  I bet he is.  Bexar Met has more lawsuits just in the past five years than some businesses and agencies get in a lifetime.  

Paid maternity leave is virtually nonexistent in the US.  Even unpaid leave is not a given.  Since, the Family Medical Leave Act only applies to employers with 50 or more employees.  A worker must have worked for the employer some 12 months prior to requesting the FMLA leave.  According to one public agency, the FMLA covers 60% of the workforce.

One mother, Anna, describes her two births.  See post.  She was an independent contractor both times. So, the only leave she received was what she could squeeze in between births.  Every Western country, except Australia and the US, offer paid maternity leave according to Anna.  So much for family values…..

How do employment lawyers choose clients?  Mike Maslanka, a defense employment lawyer, talks about this topic.  He discusses a talk he had with a plaintiff employment lawyer from Houston.  The Houston lawyer said he asks two questions: 1) what reason did the employer give for terminating you?  2) what was the real reason?  This plaintiff lawyer from Houston said he believed these two questions would "pry out the truth" regarding what happened.  I agree these two questions are key.

Mike then offers his version; as a defense oriented employment lawyer, he considers two quotes when choosing clients: 1) Salespersons often say the best sale they make is the one they did not make, and 2) Mark Twain warned that is often easier to stay out than to get out later.  I agree.  As Mike says, life is too short to deal with difficult clients.  I agree completely.  

This is especially true when considering plaintiff clients.  As I have mentioned before, very, very few potential clients come see me because they seek revenge or because they are looking for a pot of gold.  Most simply want some sort of vindication or recognition by someone in authority that they have been wronged.  But, they do want me to represent them sometimes with as little investment on their part as possible. They want me to take their case on contingency with no requirement that they pay anything.  So, yes, they may not tell me all the bad news in that first meeting.  We need to "pry it out" sometimes.  And, in the prying out process, we do sometimes learn which clients we need to avoid for many reasons. 

Hewlett-Packard  sues Mark Hurd claiming that his new job as CEO for Oracle will require him to disclose trade secrets.  Apparently, HP never required Hurd to sign a non-disclosure or non-compete agreement. So, HP is suing under the theory of inevitable disclosure of trade secrets.  HP filed suit in California, which according to one observer, has not embraced the doctrine of inevitable disclosure. See Workplace Prof post.  

Mark Hurd, of course, was the CEO for HP until he was charged with sexual harassment.  See post. Not a bad gig.  Cost your employer big bucks and bad publicity and become the CEO for Oracle…..

 A San Sntonio soldier has been killed in Afghanistan.  PFC Diego Montoya was Mehtar Lam in Northern Afghanistan.  A 2009 Taft High School graduate, he participated in the high school JROTC program.  He was serving with the 64th MP Company.  See San Antonio Express News report.  His mother said he always wanted to serve in the Army.  His step-father said he was a hopeless romantic. 

The ADA was amended substantially in 2009.  See prior discussion here.  With the new ADA in place, disability cases will be more about the accommodation process and less about whether a person is disabled.  Workplace Prof discusses a case that sheds some light on the accommodation process.  An employee seeking accommodation must present his/her concerns to the employer.  The employer is then required to respond by either providing the accommodation or offering alternatives.  This is known as the "interactive process."  

Some employees, inspired by some limited knowledge of the law, then argue with the employer and essentially refuse particular accommodations.  The employer is not required to provide the requested accommodation.  It is only required to provide an accommodation that meets the employee’s need.  In Gratzi v. Office of Chief Judges, 601 F.3d 674 (7th Cir. 2010), the employee was a court reporter who had an incontinence problem.  She needed a nearby bathroom as an accommodation. She needed to get to a restroom on a moment’s notice.  But, her position was reorganized into a pool position in which she no longer was assigned to a particular worksite.  There was no reason to believe this reorganization was motivated by discriminatory intent. 

The employer suggested a number of possible accommodations, all of which were rejected by Mr. Gratzi.  She insisted on reinstatement to her previous position.  Reinstatement to her previous position meant she would be assigned to one particular worksite.  The court reporter did not seek her doctor’s advice regarding some of these proposed and then rejected accommodations.  She simply rejected them outright.  The appellate court found in favor of the employer.  The plaintiff, did not, said the court, explain why the offered suggestions would not work.  She did not explain why these alternatives would not allow her to get to a restroom within five minutes, as she needed.  

Some of the alternatives would have required Ms. Gratzi to raise her hand for a break.  She argued that this would cause her embarrassment, possible resentment by other court reporters who would have to cover for her, and would disrupt court proceedings.  But, as the 7th Circuit said, this was a detriment more to her employer than to the employee.  The court felt she did not do enough to reach an accommodation.   A few employees have come to see me lately expressing their resentment at the employer’s apparent unwillingness to provide the requested accommodation.  But, the law does not require the employer to provide you the accommodation you want.  It only requires the employer to provide an accommodation that meets your medical needs.  

As Workplace Prof points out, the employee’s outright rejection of several alternatives made her an unsympathetic plaintiff.  Sympathy does count in litigation.  That five minutes of feeling good when you tell the manager "no" can cause long term pain and regret.  It would serve any employee much better if they articulate some objective reason why an alternative will not work.  Even better, check with your doctor before responding to the employer’s offer. 

Note that the employer in Gratzi was allowed to reorganize in ways that added to the employee’s difficulties, so long as the reorganization was done without discriminatory intent.  

 A worker in El Paso was vindicated after he was fired for talking to his co-workers about work conditions.  The employer’s action in firing the worker violates the National Labor Relations Act.  Taking action against a worker for discussing "terms and conditions" of employment with co-workers violates the NLRA.  Eric Murillo worked for Chaffhaye, Inc. and arranged a meeting with other employees to discuss unsafe working conditions.  His employer fired him.

After filing a complaint with the National Labor Relations Board and seeking representation from the Paso del Norte Civil Rights Project, he was reinstated with lost wages.  OSHA also eventually got involved and also found violations.  See report.  Chaffhaye produces livestock and forage feed. 

 Fitness for duty exams are not popular with the workforce.  They can be very stigmatizing.  But, employers want to know if an employee has issues that could affect business.  Most caselaw says fitness for duty exams for unspecified reasons are not justified – they are perceived s a backdoor to discriminate based on disability.  But, the 9h Circuit found in Brownfield v. City of Yakima that sometimes they are appropiate.  See decision.  In this case, a police officer exhibited erratic behavior a few years after he sustained a head injury.  He was complaining over a period of years about a supervisor who Brownfield believed was keeping him from  promotion.  After exhibiting some erratic behavior, his employer required him to see a doctor and provide a report.  Brownfield cooperated at first and then refused to follow through.  The first doctor did find a mental diagnosis.  

The court found that in a workplace where the employer is engaged in dangerous work, preventive fitness for duty exams might be appropriate where there is a business necessity.  The court cautioned that they should not be used as a means to harass an employee or to fish for non-work related medical issues.  The business necessity standard is "quite high" and should not be confused with mere expediency, said the court.  The court then concluded: 

         "Nevertheless, we hold that the business necessity standard
         may be met even before an employee’s work performance
         declines if the employer is faced with significant evidence
         that could cause a reasonable person to inquire as to whether
         an employee is still capable of performing his job. An employee’s
          behavior cannot be merely annoying or inefficient to
         justify an examination; rather, there must be genuine
         reason to doubt whether that employee can perform
         job-related functions."

This ruling may not provide the clearest guidance, but it is a start.