You may have heard about the school district in California that let some 2,000 students take home school-issued laptops,  The laptops had webcams and a software program, Theft Tracker.  Theft Tracker would take pictures with the web cam every 15 minutes, if the shool officials activated the program.  Many laptops were reported stolen.  So, the webcams were activated in many laptops. The program enabled the law enforcement authroities to recover six laptops.  But, some laptops were reported stolen but later found by the student.  Yet, the Theft Tracker was never deactivated.  The laptops overall took some 56,000 pictures.  About two-thirds of the pictures were related to the six actually stolen laptops.  The rest of the pictures were taken from laptops that had not been stolen. School officials simply neglected to deactivate the theft tracker software.  So, there were many pictures.

The parents were not told about the software.  They have even pretty upset, reports Workplace Privacy Counsel.  The school committed several errors, reports Workplace Privacy:

  • The school failed to issue written policies regarding the use of Theft Tracker
  • Parents and students were not informed and were not required to consent to its use

As Workplace Privacy Counsel explains, the same issues would apply to the workplace.  Any employer seeking to use similar technology would need to issue written policies regarding the technology and obtain consent from its employees.  

Otherwise, any employer would face what the California school district is facing: at least one lawsuit, so far regarding invasion of privacy; an FBI investigation; Congressional hearings; and one proposal by Sen. Specter to extend the Federal Wiretap Act to video surveillance.  

 Judge Keller’s trouble continue.  She still has a hearing in June regarding the execution and attempted appeal of Michael Richard.  And, now she has been assessed a fine of $100,000 for issues regarding her financial disclosure form.  See report.  The Texas Ethics Commission has levied a $100,000 civil penalty because she failed to disclose all of the sources of her income in 2007 and 2008.  She failed to disclose her ownership in $2.9 million dollars worth of property.  

 This issue arises every so often.  An employee has a serious illness and is warned by her doctor that stress at work worsens the illness.  Is that a disability?  Not according to caselaw under the old (ie, pre-amendment) Americans with Disabilities Act.  In one case, the client was warned that her hypertension would worsen if her stress was not ameliorated.  She could suffer a severe heart attack, the note warned.  The stress was largely from work.  So, the doctor gave her a note to give to her employer with suggestions on how to reduce stress at work.  The employer ignored the note.  The employee filed suit and lost on summary judgment.  Caselaw interpreting the old ADA simply does not provide protection for a potential disability.  

A severe heart attack, said the judge, was a not a disability, yet.  Hypertension did not yet affect her daily life, said the court.   So far, the employee functions normally, other than loss of sleep.  So, she lost her lawsuit.

Another employee suffers from a rare genetic defect causing her spinal issues.  She has herniations in her neck and spine.  She has to stay home every so often and take medication.  She misses work, apparently without warning and her employer complains.  They start referring to her as the "absent" employee.  The stress causes her spine to worsen, causing even more time off.  Under the new ADA, that condition might constitute a disability.  

We had a saying when I served in Iraq, "nothing is easy in Iraq."  Well, nothing is easy in employment law. 

 A reader writes to tell me that the unfortunate decision in Whirlpool, Inc. v Camacho was marred by the fact that the winning law firm had given $67,500 to three members of the Texas Supreme Court.  I previously wrote about this case earlier.  Among the many things wrong with that decision is that the Texas Supreme Court overturned a jury decision based on lack of evidence.  Jury decisions are supposed to be accorded great deference.  The court’s decision over-analyzes and parses the evidence almost as if it was trying to reach a certain result.  The court went to great lengths to justify its decision.  

As the reader points out, it simply looks bad that the winning defense firm contributed over $50,000 to three of the justices who decided the case.  Judges are supposed to avoid even the appearance of impropriety.  Yet, we in Texas and other states tolerate campaign contributions which stain our courts with the appearance of impropriety.  The defense firm, Haynes & Boone, contributed $67,500 to three Texas Supreme Court justices according to Texans for Public Justice.  This appears to be news to my reader.  But, it is not news to those of us who practice in Texas courts on a regular basis. 

Many law firms contribute tens of thousands of dollars to Texas Supreme Court candidates.  Yet, it is very rare for a judge to recuse him/herself due to these contributions.  Judges would certainly recuse themselves if they had stock in one of the parties, or some other financial interest in one of the parties.  But, for some reason, we have never viewed campaign contribution as a financial interest. Surely, tens of thousands of dollars constitutes a financial interest which presents the appearance of impropriety.  

 This is what is wrong with federal judges when it comes to employment law.  In a recent deicison, the Fifth Circuit applied the discredited "stray remarks doctrine."  Of course, a defense employment lawyer notes the application approvingly.  See post.  In Jackson v. Cal-Western Packaging Corporation, the Fifth Circuit Court of Appeals (federal) found a remark by management was not sufficiently related to the adverse personnel action to be admissible. Nonsense.  The manager had referred to the Plaintiff Jackson a year ealier as "an old, grey-haired fart."  So, a year later, when he was fired for inconsistent reasons, he claimed age discrimination.  The remark shows clear age animus.  Under normal circumstances, the remark would serve as direct evidence of age discriminatory motive.  The burden would then move to the employer to show they would have fired the employee even without the age discriminatory motivation.  That would be a dificult burden to meet.  So, this discussion has real import.

 The employee was 69 years old when he was terminated.  He was replaced by a 42 year old employee.  Jackson filed suit.  The district court granted summary judgment, finding insufficient issues of fact to justify a trial by jury.  Jackson was accused of sex harassment, which he denied.  He claimed younger workers accused of sex harassment were not fired. 

The Fifth Circuit’s reasoning is wrong on several levels.  First, it is simply not sensical to expect that an ageist remark from a year earlier would have no relevance at all to the decision to terminate. That simply does not reflect the reality most of us face in our everyday work lives.  So, yes, this issue certainly should have gone to a jury.

Second, this reasoning by the Fifth Circuit represents the court’s attempt to hang onto a discredited doctrine.  The stray remark doctrine was overturned in another Fifth Circuit case from 2005.  The doctrine is referred to as the "stray remark doctrine" because the remark is deemed so remote in time, and so irrelevant that is is simply a stray remark (as if stray remarks have no relevance).  

In 2005, the Fifth Circuit’s use of the stray remark doctrine was expressly overturned by the US Supreme Court in Reeves v. Sanderson Plumbing Products, 530 US 133, 151-152 (US 2005).  In Reeves, the employee was described as "so old he must have come over on the Mayflower."  The Fifth Circuit in that case had disregarded the statements saying they were not made in the context of Reeves’ termination.  The Supreme Court, however, found the court of appeals impermissibly substituted its judgment for that of the jury.  That is, the Supreme Court found the Fifth Circuit evaluated the evidence when it should have left that function to the jury.  The Supreme Court ruled that the jury should decide if the remark was too remote in time to be relevant. 

So, this decision in Jackson is the Fifth Circuit’s attempt to ignore Supreme Court precedent.   Much to the detriment of employees who have to get by inn the real world.  I have discussed this before. Some judges simply have little experience in the real world.  The workplace can be venal, small and trivial.  The life experiences of a judge do matter. 

 Texas law on non-compete agreements is stricter than many states.  In Texas, the non-compete can be enforceable only if the employer provides some sort of confidential information in exchange for the non-compete agreement.  Typically, the employer provides some trade secret or other proprietary information.  Mike Maslanka pens another excellent post and discusses the state of non-compete law in Texas.  He discusses the case of Marsh USA Inc, Et Al v. Cook.  The lower court of appeals found that since no confidential information passed from employer to employee, then the non-compete signed by Rex Cook is not valid.  Marsh argues that the mere exchange of money serves to make the non-compete binding.  As Mike explains, the arguments are cloaked in legal jargon.  But, in reality, they reflect core Texas values, such as supporting individual entrepreneurs versus securing the fruits of hard-won business success. 

The Texas Supreme Court has accepted the case for appeal.  If Marsh wins, then non-compete agreements will become much more common,as my friend Chris McKinney notes.  

 I wrote previously about a San Antonio law firm that refused to provide documents requested by the EEOC.   The EEOC even filed suit in federal court to get those documents.  Well, the Malaise law firm thought better about it and provided the requested documents, after all.  Russ Cawyer reports that the EEOC moved to dismiss its motion when the firm did later provide the documents.  

As I mentioned earlier, it is hard to understand how the law firm can claim privacy concerns when all information and documents acquired by the EEOC are treated as confidential. Indeed, it is likely now that the EEOC will view those documents with some suspicion.  The employer may have made their position worse with this resistance. 

 The Fourth Circuit Court of Appeals (federal court) covers the Carolinas, Virginia, Maryland and West Virginia.  The Fourth Circuit and the Fifth Circuit (Texas, Louisiana and Mississiippi) are the two most conservative courts of appeals in the country.  So, it is news when the Fourtth Circuit overturns summary judgment in favor of the employer.  In this sex harassment case, the Fourth Ciorcuit found in favor of the plaintiff in Merritt v. Old Dominion Freight.  

The Court correctly noted that evidence of the falsity of the employer’s explanation alone is sufficient to show discriminatory animus.  That is, evidence that the story was false suffices to show the employer was motivated by discrimination.  The case should go to the jury.  The jury should review that evidence of the employer’s story and determine whether they believe that evidence shows discrimination.  

Key evidence included a PAT, a physical ability test, which the employer required Ms. Merritt to take before allowing her to return to work.  Evidence showed that few if any males had been required to take the PAT when they sought to return to work.  The employer could not produce any written policy showing when it even was supposed to require the test.  I think what caught the court’s attention was the employer’s argument regarding this policy evolved over time during the litigation and the appeal.  "It was only late in the game, on appeal and perhaps not until oral argument before this court, that the policy really took shape."  Slip opinion, at p. 15.  That is a polite way of saying that the employer did not pull this argument out until the appeal.  

It is never a good thing when a judge notes that a key claim or argument only took final shape on appeal.  That is judge-talk for this defense appears to be less than sincere.  And, the court is right that such lack of sincerity is for the jury to assess, not judges.