An interesting decision on non-compete agreements.  The Court of Appeals in Houston found a non-compete reasonable. See:  Gallagher Healthcare Ins Services v. Volgesang.  The former employee was an insurance broker for Gallagher Healthcare.  After twelve years, she resigned to work for a competitor.  The non-compete provided that the employee could not have contact with 80 customers she had done business with in the prior two years for another two years working for the competitor.  The court found this provision a reasonable substitute for the customary geographical limitation.  So, instead of the typical geographical limit, this non-compete provided the employee could not contact for two years her prior customers.  See more at Russ Cawyer’s post about this case. 

 The real Norma Rae died last week.  Chrystal Lee Sutton worked in a  North Carolina textile mill when she started trying to organize a union at the plant due to the low wages and poor working conditions.,  She was fired and forcibly evicted from the plant.   As she was being taken away by the police, she stood up on a work table and held a sign that said "Union."  She slowly turned around so everyone could see the sign.  Just like in the movie.  Her co-workers stopped working, cut off their machines and gave her the victory sign.  All of a sudden, the plant became very quiet.

A few years later, a court ordered that she be awarded lost pay and reinstated back to her old job.  A few more years later, the movie "Norma Rae" was made and now her story is history……

 Sometimes, the best advocacy is the least advocacy.  Subtle can persuade better than histrionics.  Read Mike Maslanka’s post about the president‘s speech last week.  When the President was accused of lying, he did not over-react.  He under-reacted.  His subtle reaction said more than histrionics ever could.  Mike then relates a similar experience from one of his trials.  Mike ia primarily a defense lawyer doing labor and employment cases.  So, the plaintiff he refers to was probably an employee.  An employee who blurts out anything demeaning or insulting will surely lose.  Mike played it well: he under-reacted.  He probably aroused the jury’s sympathy.  

Its a scary thing to lose a job through no fault of yours.  Its scary to get in trouble at work through no fault of yours.  But, do not over-react.  In trial, the judge and jury see everything you do.  Whatever you do becomes magnified.  The jury may not understand legal issues.  But, they will surely understand human dynamics.  Under-reaction says much more.  

 A former Corpus Christi State School employee was convicted in the "fight club" trials.  D’angelo Riley was sentenced to 4 years in prison and 8 years probation for arranging some of the fights.  One report said he was one of the ring leaders.  He was the second state school employee to receive prison time for these fights between persons diagnosed with mental retardation.  

This is a shameful episode in our society.  We have a wonderful state, but we underfund our state schools.  State schools is where we send our citizens with mental retardation.  I have discussed this before.  

Many employers require drug tests as a requirement for employment.  But, few employers conduct the test themselves.  Most employers contract out the actual drawing of the specimen and testing.  Some laboratory will perform the test.  Some employers will fire an employee for testing positive for a drug test.   What happens if the lab makes a mistake?  Well, if the lab makes a mistake, the lab makes the mistake, not the employer.  So, any legal action would lie against the lab, not the employer.  

But, under Texas contract law, an employee may not have an action against the lab either.  Since, the employee had no agreement with the lab.  Shoot, the employee would probably not even ever see the lab.  So, yes, in some situations involving a false positive, the employee is flat out of luck with no right to file suit against anyone.  Not the lab and not the employer. 

I get calls like this about once a year.  Unfortunately, false positives happen all too often.   

Same thing happens with criminal background checks.  If the "checker" falsely reports back some criminal history, the employee’s action will be against the criminal background checking firm, not the employer.  The remedies (ie, what you can sue for) will be limited.  See Zepeda v. Industrial Site Services, Inc., 2008 WL 4822205 (Tex App. Corpus Christi unreported decision). 

Welcome to "at will" employment, the rule in most states.  

 Workplace bullying leads to insomnia, even for those co-workers who merely observe the harassment.  In a study conducted of middle aged persons in France, men and women who suffered some harassment at work were twice as likely to suffer sleeping problems.  For the study, they defined bullying as hostile actions designed to offend or oppress over a long period of time.  Men who simply observed bullying were 60% likely to suffer trouble sleeping, also.  Women who observed bullying were 20% more likely to also suffer some insomnia.  The study was conducted by University College of Dublin, Ireland researchers.  

 I used to get referrals from the San Antonio Bar Association.  These referrals included many clients who had never spoken to a lawyer anywhere.  Many of them would call complaining basically about unfair treatment.  I still get calls like that, sometimes.  They might say, "my employer fired me because they claim I did not call in, but I did call in."  I have to explain to potential clients like this that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.  I have talked about this before. 

We have what is known as "at-will" employment.  An employer can fire you for any reason (other than various types of discrimination).  Just as the employee can quit for any reason.  So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you.  I wish that was not true.  I wish our state laws were different, that they required some sort of "just cause" for termination.  But, most states do not require just cause for a termination.  Only some 10 states require a good reason for a termination.  In the rest of the states, such as Texas, an employer can fire you for the wrong reason.  

 If you have a problem employee, it is important to document those problems.  Written counseling serves many purposes.  Michael Fox discusses a case in which the employer did not document those problems and lost a claim for discrimination because of that failure.  Of course, he assumes the alleged work problems were genuine.  Maybe they were genuine and maybe they were not.  If the issues were genuine, then it is even more important to document those problems.  A good employee, or a formerly good employee, as this lady appears to have been, deserves a chance to improve.  

Of course, as Mr. Fox notes, it hurt the employer that it did not follow its own progressive discipline process.  That failure to follow its own policies can help show that the employer’s concerns are not genuine and have been fabricated.