Clients often have the strangest notions.  They actually think that if the law says something, then the employer must do what the law says.  I have to break the news to them:  employers can ignore the law.  Yes.  Employers can ignore the law if they do not mind the consequences.  Employers do it all the time.  Seems to me employees sometimes forget they work for an employer.  If the boss says they will not accommodate you, then that refusal is the "law" until you can file a lawsuit and obtain a ruling from a judge.  

So, yes, if you file a lawsuit against your employer and you still work for the employer, then, guess what, you still have to ask the boss for time off to attend a deposition.  You still have to ask the boss for time off to attend a trial at which the boss may also be present.   The employee’s lawyer cannot give you time off.  You do not work for your lawyer (actually, its more the other way around).  

Continuing to work for an employer you have sued can make the working environment very tense.  But, remember, if the employer is halfway intelligent, they are even more nervous.  Because the intelligent employer knows that if s/he says anything halfway inappropriate, then that could become the subject of another EEOC charge or worse.  So, remember you may be nervous.  But, your boss is even more nervous.  Cut your supervisor a little slack and you will benefit in the long run…..

 Rio Grande attorney, Aaron Ramirez, explains nicely the problems with seeking redress for wage violations from the Department of Labor.  As he says, its better to seek relief through a private attorney.

Aaron points out for example that DOL does not normally seek liquidated damages.  Liquidated damages is a phrase referring to monies used to compensate the victim of a wage issue for emotional issues and to help punish the employer.  

In my own experience, DOL does little more than *maybe* issue a finding that the employer has violated the Fair Labor Standards Act (the minimum wage law).  

 Persons with disabilities always need information about possible accommodations.  A great website is JAN (Job Accommodation Network) website sponsored by Dept. of Labor’s Office of Disability Employment Policy.  There you can look at various accommodations based on the type of disability.  There is a separate section for employers and employees.  

Of course, the best answer is whatever your health care provider and you come up with.  But, the JAN website can help you consider possible alternatives.  

Looking for a lawyer is never easy.  In the employment law business, many clients call me or other plaintiff employment lawyers at the last minute or close to the last minute.  Typically, potential plaintiffs do not start calling lawyers until they receive the "right-to-sue" letter from the Equal Employment Opportunity Commission (EEOC).  Most charging parties naively believe the EEOC will conduct a true investigation.  So, naturally, they do not start looking for lawyers until it is clear the EEOC will not resolve their issues.  

Unfortunately, in San Antonio, as in most jurisdictions, there are far more potential plaintiffs than there are lawyers.  It is hard to find a plaintiff employment lawyer.  Some potential plaintiffs get caught up in the referral from one personal injury lawyer to another, all of whom decline the case.  So, by the time the 90 deadline (statute of limitations) is about to expire, they still have not found a lawyer willing to accept their case.  By far, most potential plaintiffs need a lawyer willing to accept the case on contingency.  Not surprisingly, most potential plaintiffs have little money – they have lost their job quickly and unexpectedly.  

It is a system almost designed to frustrate lawsuits.  Indeed, that was the intent when the Civil Rights Act of 1964 was passed.  Many members of Congress hoped then that the EEOC would resolve most disputes.  In actuality, the EEOC resolves very little.  

I tell all potential clients, employment law or otherwise, they should speak to 2-3 lawyers before choosing one.  In the employment law area, I warn them they also need to see lawyers asap.  If I cannot accept their case, I provide three names of lawyers who might be able to help them.  Because the 90 days passes so quickly, I tell them they need to make appointments with all three right away.  otherwise, many potential clients make the mistake of seeing one lawyer before even making an appointment with the other two.  Making one appointment at a time takes too long.

It is a very significant challenge finding lawyers for an employment case, when you are an employee.  Do *not* waste your 90 days.  Heck, many clients do not even start looking until 30 days or so have passed.  They just do not realize how hard it can be to find a good plaintiff employment lawyer.  

 "Do unto others as you would have others do unto you"  The famous words known as the golden rule.  Its a Christian precept designed to encourage us to treat others as we would like to be treated.  Unfortunately, in the work place, we must sometimes treat others as we must in order to survive, or so we think.  "Niceness" does count in lawsuits.  Extending basic courtesy, or making a generous gesture make a difference in a lawsuit.  

You, as an employee, may be locked in a huge fight, or simply engaged in an ongoing tit-for-tat with your employer.  The struggle may last months or years.  But, everything you do will become magnified if your dispute becomes a lawsuit.  A judge or jury will look at what you did and draw critical conclusions about you as a person.  The judge understands the law, but s/he sees so many lawsuits that personal differences alone may make you stand apart from the horde of losing employees.  A jury, on the other hand, may understand little of the law in a discrimination case.  But, they will well understand an employee "smarting off" to a manager or refusing to perform some task at work.  

The simple things have a way of crystalizing a case for a jury.  It is in your interest to do the right thing,  Because, if you do not,  it can cost you an otherwise winable case.  

That is partly why a leading defense lawyer warns employers to follow the golden rule.  

The more difficult the issues become, the more nasty your dispute may become, the more important it is to follow the golden rule.  Do the right thing.  You will live better and you will have a better chance of winning. 

 Judge Sam Kent was denied his request to be certified as having a disability which affected his ability to perform his duties.  The 5th Circuit Court of Appeals denied his request.  Judge Kent was and still is a United States District Judge.  He heard many discrimination cases in his 15 years plus on the federal bench in Galveston.  He denied relief to a great many plaintiffs in discrimination cases, including sex harassment cases.

It turns out he was harassing his own female employees.  He was indicted last year for harassment and obstruction of justice.  He will now very likely be impeached.  If the 5th Circuit had found him to be disabled, then he would have continued to receive his federal judge’s pension. 

Its one thing to harass and then deny other female victims the right to sue for harassment.  But, to then claim disability when he has denied disability protections to so many other persons with disabilities.  He claims diabetes and alcoholism.  Alcoholism seems the stronger argument.  But, under the Americans with Disabilities Act (prior to being amended in 2009), alcoholism did not qualify as a disability unless the victim was undergoing treatment.  

Its easy to look at his claim for disability with skepticism.  I hope it was sincere.  If it was, he probably better understands the position of many of my clients when they have been turned down for protection they deserved. 

 A post the day after Memorial Day about an excellent soldier lost in the killing districts of Baghdad:  

http://www.arlingtoncemetery.net/cnsaenz.htm

The ripple effects of losing an excellent soldier like 1SGT Saenz spread far and wide.  One soldier with a heart of gold enlisted in the active army in response.  Other soldiers simply look back at 1SGT Saenz as an example.  They try to live up to his example everyday.  A few of us simply write about him and wish there were no losses in war.  

If you haven’t already, thank a veteran for his/her service.  

 Many callers want to know about miscellaneous deductions from a paycheck.  Auto repair shops deduct for lost tools, long haul truck companies deduct for uniforms, everyone deducts for something.  Often, these employers deduct the wrong things in the wrong way.  Under the Texas Payday Statute, an employer can only deduct only what the law allows (such as income tax deductions) and what the employee agrees in writing.  

Of course, the penalty is weak: $1,000 fine or the amount of the deduction, whichever is less.  But, still, the law is clear.  Report any violations to the Texas Workforce Commission.  TWC may not do much.  But, even if all they do is send a letter finding the employer at fault, that can be helpful. 

 Arbitration has been around forever for labor disputes.  Unions and their employers have long relied on arbitration as a relatively inexpensive way to resolve disputes.  In the labor context, the arbitration process is set up through a collective bargaining agreement.  The arbitrator is picked by both sides from a list of some 10 ore more names.  The unions and employers know more or less who the arbitrators are and how they will approach various issues.  The unions and the employer share the fees for the arbitration.  Arbitrators receive anywhere from $150 to $500 per day.  Fees for renting a room, travel, etc. can add up to another $500 per day.  Since the fees are shared, the incentive is for arbitrators to not favor either side.  This approach has some fairness to it.  The entire process is negotiated.  

By going to arbitration, unions give up jury trials, but instead, they get a quicker system to resolve workplace issues.  

But, in the past 10 years or so have these arbitration style processes have invaded the non-union context.  Employers have seen them as relatively inexpensive and just as fair.  But, that is simply not true.  Unlike labor unions, your average employee involved in non-union arbitrations will participate in an arbitration only once in his/her life.  The employee knows nothing about any of the possible arbitrators on the list.  The employee cannot afford $500 per day for an arbitrator.  The courts have imposed some limitations, but still, the employee is expected to pay some fees in most non-union arbitrations.  

Its a tough deal for employees.  So, why have arbitrations?  Well, mostly because the employer want them, or think they want them.  There have been one or two instances of arbitrators awarding sizeable awards to employees.  But, most employees cannot even afford to get into the door of an arbitration.

But,  at least one defense lawyer finds arbitrations to be not worth the trouble for employers.  In his informal survey, he finds many defense lawyers who agree with him.  The process has grown, in part due to many lawyers and employees pushing to get some of the same protections they would have in court.  

But, across a range of consumer disputes, arbitrations appear to be here to stay.  

 I recently talked about clients who "forget" key evidence because they are nervous or simply frightened about their situation.  On the other hand, there are, on very rare occasions, those folks at the opposite extreme.  The potential clients who know or should know they do not have a strong case.  They just want to manipulate the system.   In some 15 years of actively doing employment cases, I have had maybe 2-3 clients who fit this category.  But, even they, I think, deluded themselves into thinking they had a case or might have a case.  One potential client, a spurned lover in an affair gone bad, simply wanted me to tell her how to get revenge or her former boss, her former lover.  

I am not really in the revenge business.  For one thing, how can I be sure that the available "revenge" will be enough revenge?  It is never wise to accept clients you cannot hope to satisfy.  But, it is flatly unethical for a lawyer to file a claim s/he knows is not well grounded.  If you do that too often, you, as a lawyer, will gain a reputation for weak claims.  So, ultimately, it is simply bad business to file weak claims.  

So, yes, it is very rare, but once in a great while people do come see me about claims they know or should know are weak.  But, you know, out of some thousands of potential clients, 2-3 is not too bad.  The overwhelming majority of clients who come see me are very sincere, even if they may be wrong or simply lack objective evidence.  Most just want to know: "Do I have a valid claim?"