I live in a military town.  We have more retired service members here in San Antonio (aka "Military City, USA") than you can shake a stick at.  So, in civilian jobs, we regularly work with former military members.  Some excel, some do not.  The perception of military persons out side of Military City, USA is sometimes that military members are too rigid or inflexible.  Some are.  The perception is sometimes accurate.  But, by far, former military members do well in the civilian workforce.

Look at Mike Maslanka’s comments about Hal Moore, retired Army general.  Hal Moore provides good lessons for all civilian leaders: 1) Never deprive a human being of dignity.  2) Always lead from the front.  That is, place yourself at the key point of any operation at key moments.   3) Listen to those below you in the chain of command.  No one knows the job of the dishwasher better than the dishwasher himself.  4) When faced with a difficult issue, always remember there is one more thing you can do to influence the outcome. 

For those not familiar with LG (Lieutenant General) Moore (Ret), he was the Battalion Commander in the book and movie, We Were Soldiers Once . . . And Young.  Great book and great movie.  LG Moore was a role model for many Army officers. Leadership, true leadership applies in any context. When he came home from Viet Nam, he visited the homes and families of all his deceased soldiers. 

If more civilian leaders practiced these four principles, we would have far more agreeable and productive workplaces.  

 In the June/July edition of the Louisiana Bar Journal, New Orleans attorney Michelle Craig relates some good advice for employers.  She discusses social media sites.  She advises employers to not routinely comment to employees about the contents of posts, blogs or comments.  She notes this could suggest the employer is conducting surveillance of its employees.  Surveillance is one of the actions prohibited by the National Labor Relations Act.  

The NLRA also prohibits reprisal against employees who discuss terms and conditions of employment. See my earlier post about this sort of reprisal.  Forbidding an employee from discussing terms and conditions of employment in any venue, including social media sites, would likely violate the NLRA.  

 A majority of Americans oppose forced arbitration accoding to a recent survey.  See HR Lawyer post.  In a nationwide survey of 800 citizens, 59% opposed forced arbitration clauses in employment and consumer contracts.  59% support the Arbitration Fairness Act, a proposed statute in Congress. Support crosses political and gender boundaries. Even after voters hear arguments pro and con, only one-third support mandatory arbitration. 

Discrimination against persons with disabilities still occurs.  Read a humorous take on one person’s experience as the handicapped person at Harvard law School and her years afterward.  Carrie Griffin Basas was tempted to offer her cane to law partners staring at her with mouths open as she showed up for on-campus interviews.  One professor kept the class late, so they could "celebrate" the handicapped girl who helps the handicapped and who will one day be on the Supreme Court."  Well, that girl is still waiting for her Supreme Court nomination…..

Well, the Texas Supreme Court is again dismantling victim’s remedies.  But, this time, they are working against small ranchers.  In Bennett and Bonham Corp. v. Reynolds, the court took away another jury verdict.  This time it was a cattle theft case.  The jury awarded $5,327 in actual losses and $1.25 million in punitive damages.  The Supreme Court considered whether the punitive damages were too high in relation to the actual losses and said the amount was too high.  The court found that the 235:1 ratio was too high.  

Punitive damages are designed to punish a transgressor, beyond mere negligence.  The Texas Supreme Court reversed the lower appeal court and found that Bennett’s trangsressions were more about the litigation than about the actual theft.  The two ranching families were neighbors and nursed a long-time feud.  Seventeen head of cattle strayed onto Bennett’s property.  Bennett sold them.  Bennett denied to Reynolds knowing anything about them and thus prolonged Reynolds’ discovery about the sale for some three months.  Reynolds sued Bennett, who then counter-sued claiming Reynolds had made everything up. 

The Court found that Bennett threatened a witness; attempted to bribe another witness; doctored some photos of the stolen cattle at auction; filed suit against a Reynolds ranch hand; and Bennett tried to meddle with Reynold’s registered brand.  All pretty bad stuff. 

But, the Supreme Court found these bad acts occurred during the litigation, not as part of the theft,  So, in a technical ruling, the court found these bad acts essentially did not count for purposes of punitive damages.  There were other ways of dealing with reprehensible litigation tactics, said the court. 

In the Army, we have this marching song which we most often used to sing when we did physical training.  On those long runs, someone would strike up, "We’re at it again, on the road….," we would wail.  Well, the Texas Supremes are at it again….

 Ohio Employer’s Law blog writes another good post on what to do if the boss is the harasser.  See post. Jon Hyman refers to a specific case, EEOC v. Fairbrook Medical Clinic, (4th Cir. 6/18/10), a sex harassment case.  In this case, the harasser was accused of several harassing incidents:

  • repeatedly showing an x-ray of his penis, calling it "Mr. Happy"
  • referring to his wife’s "nice, tight p—-y" during a staff meeting
  • telling dirty jokes, including imitations of him kissing a woman’s breast
  • frequently talking to staff about oral sex and women’s breasts
  • referring to female staff as "slut" and "c—" routinely
  • asking a female doctor if he could help her pump milk from her breast, if he could see her breast and could he lick up some spilled milk

This is pretty repulsive stuff.  Many courts would consider this to be mere bad manners.  But, the 4th Circuit, not an employee friendly court, found this went beyond mere incivility in the workplace. Telling off color jokes is one thing.  But, the court found this case involved more than crudities.  The business owner targeted the employee with very personal comments designed to humiliate and demean her. 

The harasser was the owner of the business.  As Ohio Employer’s Law noted, what do you do when the harasser is the business owner?  Jon provides some guidelines.  The problem for him, an employer’s lawyer, is that employers will be immune from liability if they have a viable procedure in place for victims of harassment to complain.  The problem for all small business owners is that this immunity just will not work for them.  How can a small business provide a means to submit a complaint about the owner?

Jon suggests the employer provide more than one avenue for the a victim to complain, presumably an office manager or a human resources professional.  But, it would be extremely difficult for an employer to establish that an office manager would "buck" the owner in the interests of providing remedies to the victim of harassment.  And, the case this immunity stems from provides that this defense (ie, having a viable procedure to make complaints about harassment) is not available when the harassment culminates in an adverse employment action, such as termination.  Ellerth v. City of Boca Raton, 524 U.S. 775 (2998).  So, even if there is a way to provide an avenue for complaints, the process means nothing if the aggrieved employee is fired or demoted. 

The other lesson to learn from Fairbrook Medical Clinic is that harassment must be pretty bad to constitute "actionable" harassment.  One or two off-color jokes is not enough.  Constant discussions about sex comes closer to actionable harassment.  As this case shows, it is important that the harassment be directed toward one person in particular. 

 

According to a recent story in the San Antonio Express-News, most employees complain about their bosses’ being lazy or dishonest.  See story.  Another 21% complain that their bosses are "nipickers."  

Speaking of which, Mike Maslanka writes a nice post about lying and body language.  A study suggests that bosses are often the better liars.  

Judge Sharon Keller’s lawyer made his final arguments to the Texas Commission on Judicial Conduct.  He argues defensively that the protocol she was expected to follow was not in writing at the time.  He said the TCJC has completed a poor investigation.  He accused the lawyers for the executed killer, Michael Richard, of telling a "pack of lies" regarding the events.  

The prosecutor, actually a special counsel for the TCJC, argued that Judge Keller admitted that she knew the protocol, whether it was written or verbal. She admitted that she knew the protocol was mandatory.  The protocol required her to refer the lawyers to the duty judge, Cheryl Johnson.  Instead, she dealt with the lawyers’ request for more time herself.  

As the reader may recall, the lawyers for Michael Richard encountered computer trouble in trying to file a last minute motion.  The motion had a fair likelihood of success.  Richard was to be executed the next day.  So, the motion was critical.  They called the Criminal Court of Appeals.  The CCA is the final appeals court for criminal appeals.  The defense lawyers were eventually referred to Judge Keller.  They asked for more time.  Judge Keller said no.  She should have referred them to the duty judge Cheryl Johnson.  Indeed, most courts would have allowed the extra time, just because of the final nature of an execution.  See earlier posts (and here) about Judge Keller.  As Judge Berchelmann said, this was a grievous sin by any public servant. 

In following this story, I tend to think Judge Keller is normally a concerned, dedicated judge, and rather conservative.  It may have just been this one time, but I tend to believe that on this one day, she was impatient with the process that allows defense lawyers in death penalty cases to file motions at the very last minute.  It may have just been a bad day, but she showed poor judgment that one day.  Even judges are human.  This is a good lesson to anyone seeking justice in court. Judges do make mistakes.  Litigation is unpredictable in part because judges (and juries) are human.  

As I tell my clients all the time, you can have the best case and still lose.  Here, Michael Richard had good basis for a motion.  But, the motion was never filed……

 San Antonio lawyer Ted Roberts has been granted "shock probation."  That means Ted Roberts will be let out of state prison early and he will seve 10 years probation.  See report.  Ted Roberts is the lawyer who was found guilty of forcing various persons to keep him quiet about these men having sexual relations with Ted Robert’s wife.  ‘Shock probation" refers to the unexpected nature of receiving probation.  The offender thinks he is spending so many years in jail, but instead the judge lets him after having already sent him to prison. 

You think the workplace bullying is bad where you work?  Meg Whitman, former eBay executive and current candidate for Governor of California, is accused of shoving an employee.  Ms. Whitman’s campaign claims it was just a verbal altercation.  Either way, it resulted in a $200,000 setlement, reportedly.  See report.  I guess things get tense at eBay on occasion…..