The Older Workers’ Benefit Protection Act (OWBPA) was passed in 1990 as an amendment to the Age Discrimination in Employment Act.  The OWBPA provides that for an older worker to sign a binding waiver of claims, the employer must include a provision that the worker has 21 days in which to sign the waiver and 7 days after signing in which the worker can reconsider his signature. The waiver must be legible and specifically refer to waiving any ADEA rights.  See EEOC Fact Paper.  The employer must tell the potential age claimant that he has a right to speak with a lawyer before signing the waiver. 

What if the worker accepts severance pay at the time he signs the release?  Must the worker return the severance pay in order to rescind his signature?  Not under the terms of Oubre v. Entergy Operations, 522 US 422 (1998).  If the release does not comply with the OWBPA, then the worker need not return or "tender back" the severance pay in order to still file suit for age discrimination.  See EEOC Guidance, Note 13.  

Passage of the OWBPA was based in part on the recognition that when an older worker is terminated, they may be leaving employment with no resources on which to live.  That is why Oubre provides they need not return a severance payment related to the waiver.  Most workers who are terminated leave with little resources.  But, Oubre only applies to age claims.  If you sign a waiver releasing several claims, such as age claims, ethnic origin claims and race claims, then you could possibly rescind only the signature related to the age claim.  Your signature remains valid in regard to the race and ethnic origin claims, whether you return the severance pay or not.  

Some plaintiffs have tried to argue that when they signed a waiver releasing multiple claims, then the waiver as a whole is not valid because it failed to meet the OWBPA requirements.  Wrong,  The failure to meet the requirements of the OWBPA only applies to any potential age claim.  Your race claim would remain barred or waived.  The waiver is effective in regard to other non-age related claims.  Same waiver, same provisions.  But, age claimants get a break, while others do not.  

The reality is that most people who are fired are extremely upset at the time.  Even if they do not shed tears, they are are still too disturbed to think clearly.  They do sometimes sign things they should not and accept payments they should not accept.  Age claimants can undo such agreements. The others cannot. 

Judge Keller’s appeal fails with no comment from the court.  See report.  The Texas Supreme Court rejected Judge Keller’s appeal.  See prior post.  Keller appealed the Commission’s public warning, arguing the Commission was authorized to sanction her or not sanction her.  Judge Keller argued in her appeal that issuing a public warning was not available to the Commission. 

If that is all they had, it is not surprising the Supremes turned her down.  Implicit in the authority to sanction a person is the authority to simply warn them instead.  Judge Keller may have been desperate for some basis for an appeal…..

Two northwest Texas nurses were fired after they reported improper medical treatment by a doctor at the hospital where the two worked.  They reported the improprieties to the Texas Medical Board, which agency oversees doctors.  The two nurses were later charged with felonies by the local prosecutor, reflecting local support for the doctor. One nurse was acquitted while charges against the second nurse were later dropped.  

Their situation garnered a lot of attention by whistle blower groups around the country. The nurses initially had sent in their complaint anonymously.  The doctor complained to his friend, the Sheriff.  The Sheriff discovered these two nurses, Anne Mitchell and Vickilyn Galle, who had submitted the complaint.  

The nurses later filed suit under the state whistle blowing statute.  And, now they have settled with the hospital, their former employer.  See NY Times report.  It was unprecedented, said some, that they would be prosecuted for making the sort of report they felt required to make.  They resolved their claims against Winkler County, Texas for $750,000.  

The doctor was reportedly committing errors in treatment and simple errors of judgment in 2008 and 2009.  He prescribed olive oil for a patient who seemed resistant to anti-bacterial medicine, failed to diagnose appendicitis, accidentally sutured a rubber scissor to a finger tip, and attempted to sell a nutrition supplements to various patients. See report.   It is difficult to recruit doctors for some rural areas of Texas.  Dr. Arafiles still works at the hospital in Kermit, Texas, but is awaiting hearing on charges by the state medical board. 

In April, 2010, state Department of Health Services later fined the hospital for failing to supervise the doctor and for firing the two nurses.  

The two former nursing administrators remain unemployed. 

Texas has several whistle blowing statutes.  The one most commonly used applies to any government worker.  Govt Code Sec. 554 applies to any state or local government worker.  State whistle blowing laws only apply to state or local government employees.  Texas has no whistle blowing statutes for employees at private businesses. 

The TWC official in charge of appeals of unemployment claims gave advice to employers on how to "game" the system.  Jonathan Babiak told employers at a conference in June that they should give employees the opportunity to quit instead of being fired.  Some employees, he explained, would think they could not apply for benefits if the records showed they quit.  See San Antonio Express-News report.    He was speaking at a conference sponsored by the Chairman of TWC, Tom Pauken.   Mr. Pauken said such advice is not proper.  Employers should not attempt to "game" the system, said Mr. Pauken.  As head of appellate services, Mr. Babiak is supposed to remain unbiased. 

Mr. Babiak has been re-assigned with no loss in pay.  Yea, I bet……

I just got off the phone yesterday with a woman crying because we lost her hearing.  I tried to explain to her that in general, TWC hearings favor employers.  Employees can win some, but close cases usually go to the employer.  

A San Antonio soldier was killed in Afghanistan.  Nineteen years old, PFC John  Andrade was killed by an IED.  See San Antonio Express-News report.  He apparently survived the explosion and even called home.  He told his family that he was fine except for bumps and bruises.  A few days later, the family was notified that he had died.  The Defense Department has not yet released details concerning the death.  PFC Andrade graduated from Holmes High School. 

I have mentioned before the remarkable bravery of our young men and women who continue to volunteer in a time of war.  IED’s can be insidious.  The concussive effects are tremendous, even when soldiers survive the blast itself.  

Another example of lawyers behaving badly at depositions.  A Florida lawyer, Robert J. Ratiner was sanctioned for his conduct at a deposition.  See ABA Journal report.  His latest sanction is that he cannot attend a deposition alone for the next two years unless the deposition is video taped.  As reminder, depositions is the event in which lawyers for both sides to a civil lawsuit can question a particular witness.  There is no judge.  Only the lawyers, the parties to the lawsuit, one witness and a court reporter attend.  The court reporter records the testimony.  Often, egos, tempers and emotions are also present.  

At his latest infraction in 2007, Mr. Ratiner lost control when the opposing counsel attempted to put an exhibit sticker on Mr. Ratiner’s laptop.  The opposing counsel was apparently trying to turn Mr. Ratiner’s laptop into a deposition exhibit.  Mr. Ratiner briefly touched the opposing counsel’s hand and then attempted to run around the table toward the opposing counsel.   According to a referree who investigated the incident, Mr. Ratiner then tore up the exhibit sticker (typically about 2" by 2") tossed the little pieces toward the opposing counsel.  He leaned in toward the opposing counsel and berated him.  Mr. Ratiner’s own consultant told him to take a Xanax.  The court reporter exclaimed that she could not "work like this."  

The Florida Supreme Court described Mr. Ratiner’s conduct as an embarrassment to all members of the Florida bar.   As I have mentioned before, extreme conduct like this is very rare in my experience.  But, lawyers do behave badly at depositions.  Not too long ago, I had to fuss a bit at one lawyer for attempting to provoke my client unnecessarily.  There is no jury and no judge at a deposition.  The things that force us to behave are not present.  

Like doctors, we lawyers also say "first do no harm" to your client.  It does sound like Mr. Ratiner overlooked this maxim and did substantial harm to his client’s case with his outburst. 

 The Hewlitt Packard CEO, Mark Hurd, resigns in the middle of a sex harassment investigation.  The investigation found other violations of other company policies.  See report.  It turns out that his expense reports were not accurate.  Mr. Hurd admitted to integrity issues.  Yet, the sex harassment probe supposedly found no infraction by Mr. Hurd. 

All too often, folks who violate discrimination laws also violate other laws.   

Tweeting your way out of a job can happen.  See report.  The Middle Eastern editor for CNN sent a brief tweet about the passing of a Lebanese cleric who was known for being anti-American.  Octavia Nasr tweeted that the cleric was "one of Hezbollah’s giants I respect a lot."  The editor meant the cleric’s opposition to "honor killings," a long and controversial tradition in the Middle East.  

CNN issued a statement calling the tweet an error in judgment.   Ms. Nasr deeply regretted the tweet, explaining that the commentary was too complicated for a tweet.  She was a 20 year employee of CNN. Now, she is out of a job.  

 According to the ABA Bar Journal, the EEOC settled a case against a temp agency in Ohio.  The agency used code words to describe the racial background of potential employees.  "Chocolate cupcake" referred to young female African Americans.  "Hockey players" described young white males. 

The case settled for $650,000.  The case was pretty egregious, said the EEOC Field Director.  

 Another incident of workplace violence.  This time in Connecticut.  See news report.  The shooter’s family say the shooter had been harassed due to his race, African-American.  In any event, he was video taped stealing some product.  The morning of the shooting, he was going to a disciplinary hearing.  He had worked for the beer distributor for some two years driving a truck. 

Unfortunately, workplace violence happens.  OSHA has a helpful website.  OSHA refers the reader to a publication by the National Institute for Occupational Safety and Health.  NIOSH suggests various ways of identifying and reducing work stress.  There is no excuse for shooting and murder. But, many employers have weak or nonexistent tools for dealing with workplace issues.  The simple answer in an at-will state is to quit a bad job.  But, for some folks, quitting is not an option, or it is not an option, yet.  I cannot remind the reader enough that if you have a problem employee, you need to perform appropriate verbal and written counseling.  Take appropriate disciplinary action for all employees.  And, yes, listen to employees and deal with issues.  

But, as my colleague says at Connecticut Employment Law, ultimately, even when you do everything right, that is no guarantee that shootings will not occur.  See post.