Russell Cawyer reports that the recent state legislative session amended the statute regarding non-compete agreements.  The new law allows physicians access to patients seen within a year.   The current law restricts the ability of employers to draft non-competes regarding geographic distance, time and activity.  This new provision adds this one category in regard to physicians.  

 So, the four day work week is a popular success in Utah.  As reported by the workplace professorblog.  As some might recall, Utah state government employees went to a 4 day work week earlier this year, I believe, due to budget issues.  Apparently, it has been a success and very popular with many state employees.  Over 80% prefer the 4 days a week (10 hours per day) schedule.  

 We don’t understand it.  But, so many Iraq and Afghanistan veterans get it:  traumatic brain injury.  LTC Rivas got it and apparently died from it.  We get it stateside, too, but TBI has become a singular feature of the current war.  The IED’s (improvised explosive devices  or "roadside bombs") are unique to this war.  When they detonate under an armored HMMV, the blast reverberates inside the thick walls.  The concusion stays with you.  When I was in Iraq, a couple of my buddies survived a couple of IED’s.  They simply drove through the explosions.  But, the ringing in the ears, they said, stayed with them for months afterward.  

LTC Rivas appeared in the news and at a forum or two on TBI.  He had served in Civil Affairs units, as I did for a time.  He was trying to put his life back together.  

Many, many IED’s result in no deaths.  But, how many result in TBI?  The Army is researching that question.  I think the answer is far in the future.  TBI itself is very hard to diagnose.  Early studies indicate that TBI develops over time after the traumatic event.  In the meantime, good soldiers like Ray Rivas suffer due to our lack of knowledge.  

When President Clinton was still President and he was getting into some trouble about having lied in a deposition regarding alleged sex harassment, a former client called me.  He was upset.  He said Pres. Clinton is getting into so much trouble for lying in his deposition, but so-and-so manager lied in his deposition and did not get into any trouble.  Former client’s case had been race discrimination, but I understood his point.  If the President supervisor gets into trouble, why didn’t former client’s supervisor get into trouble for lying in former client’s case?  

I had to explain to that managers and supervisors lie or stretch the truth in most depositions.  They never admit to discriminatory acts or statements.  And, prosecutors are too busy with more important crimes than to pursue perjury in civil cases (ie, non-criminal cases). 

You see what happens when the Houston district attorney’s office "coaches" a witness.  Witness "coaching" often walks a fine line between outright lying and simple education regarding what a witness can do or not do.  These attorneys got caught.  This all stems from a sex harassment case against the former Harris County District Attorney, Ibarra v. Harris County.  

Most defense attorneys do not even come close to getting caught.  Most defense attorneys are very honorable, responsible officers of the court.  But, a few are not (not unlike a few plaintiff attorneys).  This is a fact of litigation.  There is no "ah-ha" moment when a racist manager admits to his/her mis-deeds.  Not in real life…..

 You work for an employer.  The employer has trade secrets and leads it wants to protect.  It asks you to sign a non-compete agreement when you hire on.  Most non-compete agreements provide that after you leave your job, you will not compete with your employer for a specified amount of time.  Is that non-compete agreement binding?  It would be binding if the employer gave you something in *consideration* for signing that non-compete.  Are stock options sufficient consideration?  A recent Dallas state court opinion says no.  Russell Cawyer, who generally represents employers, says money or other financial consideration will not be enough consideration to support your promise not to compete against your employer.  The employer should offer some binding promise, such as providing trade secrets.  

Once the employer makes good on that promise, then the non-compete *may* become binding.  See Chris McKinney’s take on the current law regarding non-compete agreements.  

 It must be tough in prison.  Allen Stanford, the investor who stands accused of bilking his clients out of millions of dollars has filed a motion asking to be transferred from the Conroe detention facility to a downtown Houston facility.  Seems the air conditioner at the Conroe facility has been out for a week. There are no windows.  It sounds tough.  He has not been to trial, yet.  So, we need to presume he is innocent.  

When I was with the US Army in Iraq, we had air conditioning most times.  But, hey, what about those times when we did not have a/c?  Guess we should have asked for a transfer to some other facility, too…..

 Half a million dollar verdicts are very rare in employment cases.  As I have explained to many clients, the big dollar verdicts generally go to the clients with big lost income.  CEO’s, doctors, etc. get the big verdicts because they lose so much money in salary and retirement benefits.  So, it is no surprise that a $500,000 verdict was won by a doctor in California.  

But, note also what the employee’s lawyer says: the employer’s lawyer made the mistake of sneering at the employee during the trial.  The big dollar verdicts require something else: they need a "good" bad guy.  Juries get upset when they award large amounts.  Studies show that generally juries get mad at someone when they award large amounts.  

People complain about the McDonald’s spilled coffee case from many years ago.  What most people do not know is that the McDonald’s executive who testified about how supposedly safe their coffee was testified badly.  He came across as rude and arrogant.  

So, if you want a million dollar verdict, you need to be making six figure income.  You also need a "good" bad guy…….

 A lawyer friend had a client once who insisted on asking for $1.5 million to settle a discrimination case.  The client did not make anywhere close to a six figure salary.  He had lost very little income income.  My friend the lawyer, tried and tried to describe to him the reality of low damage cases and how much value they held.  After thinking about it a few days, the client came by the office to drop off some papers.  He stuck his head in the door.  Said he had been thinking about it.  Said he was prepared to lower his initial settlement offer.  …   Said he was willing to settle for $1.0 million.  

He just did not get it.  He did not get that you need to trust your lawyer, not some friend or relative who claims to know something about the law.  He did not get that low damages equals low value in settlement talks.  If you have lost little or no money, then your case is worth little or nothing.  If you do not trust your lawyer, then you should hire another attorney.   

When you hire a lawyer, you hire him/her for her judgment.  Skills, education, experience are critical components.  But, the most important factor is judgment.  Is your lawyer objective enough?  Will she believe in your case yet still be objective enough to speak on your behalf

As for that client who came down to a "reasonable" settlement offer of $1.0 million, my friend learned later that the client was relying on advice from a paralegal friend.  My friend lost the case on summary judgment.  He recommended that the client not appeal.  But, the client found a lawyer anyway and appealed.  He lost.  

A settlement offer of $1.0 million in that particular case was so unreasonable that the employer never responded with a counter-offer.  As I have told many clients, its one thing to suffer unfair treatment at the job.  But, to let the son-of-a-gun win at trial or during the lawsuit just makes it all so much worse.  

 State workers have it rough.  Yea, they have more job security than many private employees.  But, if they are not paid in accordance with the Fair Labor Standards Act, they cannot file suit against their employer.   That was the result of the 1999 decision in Alden v. Maine.  They also cannot sue their employer under the Americans with Disabilities Act or the Age Discrimination in Employment Act.  

The Texas equivalent of the ADA and the ADEA provide comparable protections.  But, the state version of the Fair Labor Standards Act has no teeth.  Most states have a law comparable to the FLSA.  A handful of states, including Texas, do not.  So, at least regarding wage violations, state workers have little or no recourse. 

The 1999 Alden decision was a 5-4 decision by the US Supreme Court.  That decision overturned decades of earlier decisions by lower courts.  So, yes, presidential appointments to the Supreme Court do matter.  

 For a good summary of the rights of Texas employees when they lose their job, see Aaron Ramirez’ post from last March.  Note that Aaron makes no mention of the employer paying the employee for any accrued vacation or sick leave.  An at-will employee, which includes most employees in Texas, has no right to be paid for vacation and sick leave.  You receive severance pay only if the employer expressly agrees to do so.  

A terminated employee has the right to continue health insurance.  But, you will have to pay the employer’s portion, wichh often makes the health insurance too expensive.