Under the scenario reported at Taxgirl website, Texas would not protect these whistle blowers.  In this case, filed in Oklahoma, two accoutants reported to their boss, a charity, that the charity (Feed the Children) owed back taxes for several years.  The employer was so happy to learn about the mistake that she fired the two truth tellers.  

I cannot speak to Oklahoma law, but in Texas, such conduct is not protected by law.  We, as private sector employees, are not protected for honestly blowing the whistle, whether we blow it to our boss or to some law enforcement agency.  

In Texas, if your employer tells you or instructs you to commit an illegal act and you refuse, then you have some protection.  But, to simply report either up the chain of command or to some law enforcement agency that the employer is violating the law, then you have no protection.  

There is a new federal statute, the Sarbanes-Oxley Act, that offers protection for private sector employees who report fraud committed by a publicly traded company (inspired by the Enron collapse).  But, even this statute would not apply to employees of the typical charity.  

 Clients and other lay persons do not always understand that lawyers for opposing sides can get along and even join together for lunch.  Mike Maslanka points out what can happen when lawyers cannot extend the simple courtesies in his latest post.  As a lawyer for one side or the other, it is easy to demonize opposing counsel and opposing clients.  But, we generally do better work and represent our clients more effectively when we can remain objective.  

As a wise San Antonio judge once advised, invite opposing counsel to lunch early in a lawsuit.  The good will from that lunch will last several months or more.   In the case referred to in Mr. Maslanka’s post, the presiding judge ordered both lawyers to attend Continuing Legal Education courses on ethics and to join together for a meal.  It is hard to demonize someone with whom you have broken bread, but, yes, you can still fight them like nobody’s business…….

 This is how you get sued.  You buy an old motel, start making a lot of changes, such as: 1) telling Hispanic employees to pronounce their Hispanic names in an Anglo sort of way, 2) telling the Hispanic employees to speak English in your presence,  and 3) when they ask why, you tell them because you are the owner.  This is what happened in northern New Mexico to one new owner of an old motel.  See story.  So, yes, now the new owner is under intense scrutiny.  Fortunately, he has not been sued, yet.  But, he did fire some Hispanic workers, so lawsuits might still be in the works.  He seems to regret some of his actions.  Fortunately, in the lawsuit business, good manners and sincerity do count.  

 Employer Support of the Guard/Reserve (ESGR) sends out a DVD to help employers mange their Reserve/Guard employees.  Having served some 25 years in the Guard/Reserve, I am very familiar with ESGR.  They did well for a Guard colleague some ten years ago.  The colleague returned to his civilian job from a US Army school, but his employer changed his job dramatically.  ESGR was able to correct this mistake with a few phone calls.  

But, since then, we have entered into a major war that relies on Guard/Reserve soldiers, airmen, sailors and Marines.  The problems have multiplied.  Since I do discrimination cases, I hear of many such military discrimination cases.  Military discrimination cases have also multiplied.  Unfortunately, some of my colleague plaintiff employment lawyers have had negative experiences with ESGR.  Some of my fellow plaintiff employment lawyers have found ESGR to rely too much on persuasion and slow to recommend to an unsophisticated Guardsman to seek legal advice.    I heard so many ESGR presentations as a Guardsman and Reservist, I hope this is not true.  

But, ESGR did move from DOL to DOD after the wars were well under way.  So, I suspect there was some problem.  Lawsuits, I believe, are the last resort.  ESGR can prevent many problems before they become lawsuits.  I hope they do.  Us civilian soldiers face many issues that active duty soldiers never will. 

For example, in the Guard/Reserve, the better you perform your Guard job, then generally, the more you put your civilian job at risk.  That is a real concern for a great many part-time soldiers.  

 The local newspaper comments on the new ADA as if they just joined the debate.  The regs will make changes, to be sure, but, the floodgates will not open.  The new regs will correct decisions like the 1999 US Supreme Court decision, Sutton v. United Airlines.  We need to remember that when Sutton was decided, there was substantial debate about what Congress intended with the passage of the ADA in 1990.  Did Congress intend to include all persons with disabilities?  Or, did Congress merely intend to cover the most severely disabled?  Both sides tossed around statistics to make their case.  Both sides even toyed with the statistics used in 1990 by Congress when they passd the ADA.  Well, now Congress has responded to the 1999 decision and expressed its will. 

But, even with these new regs and the new ADA Restoration Act, a person with a disability will still have to show that his/her disability affects her job performance.  The new amendment and regs will move the debate away from whether a person has a disability and over to whether the employee sincerely attempted to accommodate the disability, a place where the debate should have been from the get-go.  

The SA Express-News quoted one local defense lawyers  as saying these regs will mean that "almost everyone" has a disability.   That is an exaggeration.  The attorney then recommends "training, training, training" for local supervisors.   I am sure she hopes local employers will contact her for that training. 

In the meantime, unemployment for persons with disabilities continues to rise.  It is over 16% now.  Applications for Social Security Disability Income benefits also continues to rise.  It increased 23% in 2009 over the same time period last year.  The application for SSDI probably reflects the great many employees who find they are unable to perform their work, according to one study.  Speaking as a lawyer for a few of those recent SSDI applicants, I can attest that these employees often find the employer unwilling to accommodate their disabilities.  So, they sometimes simply give up and apply for benefits.  They have to support themselves, somehow. 

 Mandatory arbitration holds few benefits for the employee.  In the labor union context, it is helpful.  The union and employer can pick the arbitrator they want.  Both union and employer have knowledge of the different arbitrators and their particular biases.  So, both sides can make an informed selection when they choose arbitrators.  But, that does not work in the non-union context.   Because in the normal at-will situation, the employee may go to arbitration only once in his/her life.  She will have no knowledge of the different arbitrators.  Instead, the employer will go to arbitration far more often and will have more knwowledge of the different arbitrators.  

And, the cost is huge.  One typical case: the employee was required to pay half the arbitrator’s fee (usually about $250/hr with a minimum of $2000/day), filing fee of $500, case filing fee of $1000, additional filing fee of $2750, $150 daily hearing fee.  These are huge fees for someone who may have ben terminated.  

Then, if you lose, you may have to pay the other side’s legal fees – $207,000 in one case.  In another case, the arbitrator derived half of his annual income from the employer.  

One study found that employees won 21% of the time in mandatory arbitration while winning 56% in California state courts.  I know there are occasional significant wins for employees, but generally, employees do worse in arbitration than they do in traditional courts.  The cost alone makes it virtually impossible for any employee to pursue.  

And, since the employers do more arbitrations, the arbitratraors will favor them.  The arbitrator gets work only if they get picked by one side or the other.  Over time, the arbitrator will favor the side that hires him/her more often.  

The reliance on arbitration needs to change.  It is harming a great many employees.  Support the Arbitration Fairness Act now pending in the Senate. 

 

 No sooner do I post about Texas anti-retaliation statutes and then I hear from someone who sort of has anti-retaliation protection but maybe not.  Let’s be clear.  Texas is an at-will state.  I do not necessarily wish it to be so, but it is so.  There are few exceptions here to at-will.  My previous post described three solid exceptions, perhaps the only three solid exceptions (in addition to the more well-known anti-discrimination statutes).  An employee emailed me about Texas Health & Safety Code Sec. 142.0093.  This statute prohibits retaliation based on reporting abuse of older persons or being involved in such a report.  This provision applies to home and community based support, not to nursing homes.  If you look around this one section, you will see that it carries no right to file suit, no details on how one might file suit,. etc.  So, it appears to be a toothless tiger.  It prohibits certain conduct, but apparently provides no remedy in case the employer ignores Sec. 142.0093 and retaliates against someone for involvement with a report of abuse.  

That review is not the final story.  That is why lawyers exist, to look very closely and see if some right to file a lawsuit or other sort of penalty was intended by the Legislature.  In fact, there is a comparable statute for abuse which occurs in nursing homes.  See Health & Safety Code Sec. 242.133.  Sec. 242.133 has a lot of detail about how to file suit if an employee suffers reprisal because they reported abuse.  It is clear there is a right to file suit under 242.133.  Sec. 242.133 applies to nursing homes. 

And, what if the abuse happens in someone’s home or some non-nursing home setting?  Then, such retaliation would probably fall under Sec. 142.0093 and not under Sec. 242.133.  And, as I mentioned, there is no clear right to file a lawsuit under 142.0093.  Perhaps, there is one, but it is not apparent.  That means reporting abuse in a nursing home has some protection.  But, reporting abuse in someone’s home or community type home may not be protected.  

This seems unfair.  But, in an at-will state, this is what happens.  This is especially appalling, since both workers, nursing home and otherwise, are required to report abuse of older persons.  So, someone may be required to report abuse and still suffer reprisal.  It is not right that that can happen.  But, it does, all too often.  

But, look at the jury protection statute I referred to.  When I first looked at that for a possible client in about 1991, it had no teeth, at all.  Back then,  a worker who was fired due to jury service came to see me and asked what he could do about it.  The only remedy then was some small civil penalty.  Now, you can sue for one year’s or more pay.  That is still not much.  But, it is a big improvement over how it stood back around 1991.