So many clients or potential clients have come to see me or discussed their problems with me on the phone.  Invariably, the pattern goes like this:  They are so scared about their job and nervous about seeing me.  Many are so frightened that I will tell them they do not have a case or that the law does not protect them.  So, they often focus on the wrong things.  They cannot tell me what I most need to know.  Often, they recall specific incidents, what I refer to as evidence, only when they drive home.   They then call me later and tell me more.  But, their recollection may come after I have already told them they have no case.  

I sympathize.  I know what it is like to be afraid for your job future and believe, rightly or wrongly, that you lack control.  It is frightening.  

Many times, I have to tell a potential client that they do not have a claim, or their potential claim is very weak.  Bad news does occur.  But, for the rest of the potential clients out there, just remember that what what a lawyer most needs to hear is why you believe you have a claim.  Why you believe you are upset.  As with a doctor, history is everything.  Most, the overwhelming majority of abused, harassed workers are rational and have reached their conclusions based on pretty decent evidence.  You need to explain why you believe certain actions are discriminatory.  

Many times, an employee tells me that they were treated unfairly in being disciplined for an objective, seemingly valid offense.  It is only when I press them that they explain well, Joe Schmo has committed the same offense and never been written up.  And, by the way, no one else has ever been written up for this offense.  Now, that is evidence that we can use. 

 Again, it seems like I am one of the few following news regarding the Iraq war, but have to mention my support for the combat stress guys in Iraq.  The combat stress folks are in the news now, since a soldier attacked one of the combat stress units in Iraq.  A 3 star general mentions that he suffered from combat stress and sought help.  Some observers find his openness remarkable.  I do not.  Everyone suffers some combat stress, either while you are there or soon after returning home.  

As the report mentions, infantry does attract the Type A personalities.  But, we feel stress like anyone else.  I had a soldier working for me, who received little apparent support form his family while we were in Iraq.  His girlfriend then treated him badly.  This young man, who I love like a son, was the best soldier.  Just excellent.  Until his girlfriend issues, we could always rely on him.  In combat, there is no greater praise.  

He suffered some bad stress near the end.  We sent him to the combat stress unit for a weekend and he came back a new man.  They did a tremendous amount of good for this very remarkable soldier.  He too was macho and did not believe at first that he needed help. 

We all suffer stress.  Its the brave ones who face it and deal with it straight on.  My young soldier did. 

Nothing to do with employment issues, but maybe, this has everything to do with employment issues……..  

 I talked about how employee handbooks are not a contract.  That means an employer does not necessarily have to counsel an employee three times in writing before terminating that employee.  But, a question that often comes up is why would an employer want to counsel an employee in writing?  The most common reason is unemployment benefits.  In most states and certainly in Texas, a worker only gets unemployment benefits if s/he can show s/he lost the job due to his/her own fault.  Employers will try to claim the employee was a bad employee.  The best way way for the employer to win that argument is to show write-ups documenting alleged performance issues.  

And, if an employee accuses the employer of discrimination, written counseling regarding objective, non-discriminatory issues provides an effective defense.  In fact, in almost all of my discrimination cases, the employer will dredge up supposed write-ups in some way.  I used to firmly believe that employers could not accuse an employee of malfeasance without contemporary write-ups.  I formerly was sure no jury would believe an employer was upset about an alleged offense unless the employer could produce contemporary write-ups.  

So, imagine my surprise when a case I worked very hard on went to trial while I was serving in Iraq.  My co-counsel lawyer told me later we lost the trial probably because the jury believed the employer’s claim they were upset with our plaintiff employees even though they had no write-ups at all to back it up.  Our clients were accused essentially of not working well with others (when just the opposite was the truth).  Yet, they apparently won on that one issue.  I am still in recovery from that shock…..

But, it still remains a valid rule-of-thumb: if you want to show a non-discriminatory reason for a termination (or some other adverse personnel action), you better have some write-ups.  

 Watch what you say.  You hear that advice, but how many of us really follow it?  Too many people are still saying things they shouldn’t.  In a recent report, the San Antonio Express news reports that a former head of the Department of Public Safety resigned due to alleged harassment of female subordinates.

I served in the Texas National Guard for many years.   I would sometimes provide our annual EEO briefing.  I urged my fellow Guard members to watch what they say.  The only safe joke these days, I told them, is a good Aggie joke.  Many did not believe me, I know.  But, inappropriate comments still go on.  Still to this day, 15 years later, men say inappropriate things to women.  In this article, the women, all successful in various walks of life, explain that they overlook the inappropriate remark depending on the age of the speaker or the context.  Many victims of discrimination do indeed try to overlook the early stages of discrimination or the less threatening forms of discrimination.  But, then the discrimination becomes more clear and those earlier comments take on greater importance. 

I am a lawyer.  My job is to minimize risk.  So, you supervisors out there, or soon-to-be-managers out there, watch what you say.  As a lawyer representing victims of discrimination, my best evidence is what you say…..

 Arbitration for labor unions has been around forever.  Arbitration has only been in use for the last 10 years or so.  Employers started establishing policies for arbitration in employee handbooks in the late 1990’s, in response to a few key court decisions.  At first, most employment lawyers who represent employees were very concerned.  National Employment Lawyers Association (NELA), of which I am a member, has sought to reverse this trend for many years.  

The issue is that arbitration means a supposed neutral person will hear both sides regarding the employment dispute.  That means there will be no judge or jury.  Often absent are the tools we normally use in a lawsuit: discovery about the evidence held by the other side. confronting witnesses, etc.  Worse, to gain access to an arbitration, an employee must agree to bear some of the costs of the arbitration.  Since there are many, various fees and since some arbitrators charge $500/day or more, the costs quickly add up. 

Now, a sister organization to NELA, Employee Rights Advocacy Institute has found in a survey that 59% of potential voters oppose forced arbitration in employment and consumer agreements.  The support is the same whether they be Republicans or Democrats. 

 One question that frequently comes up is what constitutes "sex harassment."  That has been a very important question in the proceedings against a federal judge.  Judge Sam Kent was sent to jail for 33 months for abusing his position and harassing female subordinates.  Certainly, his actions, groping females, was clearly sex harassment.  But, generally, any unwanted attention based on gender constitutes sex harassment.  

But, look at that statement closely.  The actions must be known to the victim.  If not know, there is no way to know whether it is unwanted.  The stereotypical grafitti on the wall of the men’s room only becomes an issues when it becomes known to the victim.  And, the actions must be based on gender.  If the grafitti concerns both men and women, then it is probably not based on gender.  

Earlier, Judge Kent tried to claim the touching was consensual.  There are many ways to show consent or non-consent.  It helps if a victim complains about the problem to someone else at about the time of the unwanted attention.  But, the best way to show lack of consent is simply for the victim to file a written complaint about the actions.  Many victims do not complain early on, simply out of a desire to "fit in" or try to get along.  That is part of what makes sex harassment cases problematical.  If employment cases were easy, then the PI lawyers who advertise on TV would be doing them….

 One thing many of my clients overlook is that employers really are human.  Yes, they did some terrible things to you and to others.  They have been insensitive or worse, sometimes much worse.  But, often, the employer making decisions in a lawsuit are far removed from the terrible crimes.  Often, the senior manager simply never saw that side of "Joe Abuser" and cannot believe it.  Sometimes, Senior Manager does not know Joe Abuser directly.  But, Senior knows and trusts Middle Manager who vouches for Joe Abuser.  

You see some of this in Michael Maslanka’s entry about his mom.  Mike represents employers mostly.  In this entry, he tries to teach his clients to try to see the point of view of the possibly  abused employee.  He refers to issuing an After Action Report to his clients and educating them on how to void paying out another zillion dollar settlement.  

Keep that in mind the next time you engage is filing a grievance or lawsuit.  The failure of management to appreciate how strong your claim is may not be due to even more abuse.  It may simply be due to misplaced trust.  

Happy Mother’s Day to you moms…..

 Seems like I am one of the few following the trials of soldiers accused of atrocities in Iraq.  I follow them because I am a retired Reserve officer and because I spent time in Iraq.  The latest trial concerns a 101st soldier accused of a revenge killing in Southern Iraq.  This soldier is facing trial in a civilian court where it will be nearly impossible, I believe, to educate the jury on just how difficult things are and have been in Iraq.  He is presumed innocent, of course.  But, whatever he did or did not do, life in a war zone is hugely difficult.  

When I was in Iraq, I tended to minimize the difficulties when talking to folks back home.  You do not want to visit your problems on people back home.  Too, as a soldier, you are never sure how much the folks back home will understand.  So, the job of educating the jury will be very difficult for this civilian criminal defense lawyer.  

That is not a new problem for lawyers.  This trial is just more so.  In the average discrimination case, for example, the challenge is educating the jury about the daily obstacles a woman faces, or a minority faces.  That is why, contrary to popular belief, when we pick a jury, we seek to strike jurors biased against our client.  But, we also seek to keep jurors who might have some understanding of our client’s predicament.  There is a saying in Iraq that applies to juries.  "Things are never easy in Iraq."  

I do not know what this soldier did or did not do.  But, I do know that not many on the jury will understand……

 

 I have been in the trenches, too long.  II have been representing employees in their struggle for justice and vindication, too long.   After all these years, I tend to look at judges in terms of how they will look at employment lawsuits.  I should be more balanced, but have to admit that I am not.  President Obama is looking at several possible nominees, based, he said, on how well they empathize with working people.  

That is music to my ears.  I have seen way too many cases decoded on appeal by judges who have never had to meet a payroll, never had to struggle with a minimum wage job, and never had to dig a ditch.  Way back when, I worked my way through college digging ditches, cooking hamburgers, and waiting on tables.  I did what I had to do.  My former supervisor at my ditch job, asked me once, "will you remember us when you get to be a lawyer?"  He meant will I remember the working people when, in his mind, I become rich and successful?  Well, I am not rich, but I hope I do remember my roots.  Too many appellate judges (who decide an awful lot of cases) have never done any of this sort of work, have never known people intimately who have dug a ditch.  

Struggling by itself does not make a good judge.  But, it does lend perspective.  As a country, we know this already.  That is why for decades, there was a "Jewish" seat on the Supreme court, a "Catholic" seat and now, one might argue, a "female" seat and an "Africa-American" seat.  As a country, we know that people who are not female will not understand fully the issues of women.  We know that Caucasians will not fully appreciate African-American issues.  Having represented many people who had real jobs in the real world, I believe that judges who never worked during college or law school, who went from law school to big law firm and then to a judgeship, just cannot fully appreciate the issues of people who had "real" jobs.  

How else do you explain a decision in which a black man is referred to as boy on several occasions, yet the Fifth Circuit Court of Appeals finds this does not equate to hostile work environment?  The life  experiences of a judge do matter.  

 So, you’re reading everything you can find on the web on your problem and you still *cannot* find what you are looking for.  You might try the top 100 employment law blogs.  I do not know what criteria they used, but I can speak for several of these blogs as being well written and very informative.  And, no my blog is not listed, so my opinion is a *true* unbiased opinion.  If you cannot find what you are looking for in any of these 100 blogs, then it just probably ain’t out there….