Persons with disabilities face huge obstacles.  Persons confined to a wheelchair face sometimes insurmountable obstacles.  So, it is nice on occasion to see some folks doing the right thing.  The famous musical "Texas" staged every summer in the Palo Duro Canyon settled a lawsuit by making the musical accessible to persons with disabilities, including those confined to wheelchairs.  The good folks at Texas Civil Rights Project brought the lawsuit on behalf of a man in a wheelchair, James Redwine.  Mr. Redwine purchased a higher priced ticket to see the show, last summer.   But, his "seat" turned out to be an empty space in the aisle and blocked other patrons and an exit.  

A few years ago, I represented a girl who simply wanted to see movies at her local theater in a small town near San Antonio.  When a co-worker and I visited the theater, I was happy to meet the owner who actually was very knowledgeable about the accessibility requirements and was already doing basically everything he could to make his new theater accessible.  Sometimes, people do the right thing, because they are forced to by a lawsuit.  Sometimes, they do the right thing, because it is the right thing to do.  Either way, it is the right thing to do and it does benefit those most vulnerable.  Either way, i think such people should be applauded.

 Facebook, Twitter, Myspace, they are all the rage.  These websites present amazing opportunities to network and stay in touch.  A friend of mine has family all across the US.  They stay in touch with Facebook.  But, for all the possibilities, these websites also present risk.  Chris McKinney explains the risks in his true story of someone who lost a job because of Twitter fun.  But, Michael Maslanka explains how social networking websites are the future and discusses how one company actually allows an hour a week for "facebook" time.  

I kid my son about spending too much time on facebook.  I tell him he does more "work" on Facebook than homework.  Not true, of course, but you see my point.  Shoot, I have my own Facebook page.  It really is a great way to stay in touch or re-connect with old friends.  But, like all concerned employment lawyers, I have to warn you all that there are indeed risks…..

 I have represented employees in employment matters for over 15 years.  For a great many persons, it was the worst experience of their lives.  Even after losing their jobs, some lost their homes, their families, and much of their former life.  It was horrendous.   I have also helped small business owners.  But, for many employees, a job dispute is such a single, overarching issue.  

The only other thing I have done in my life with greater pressure and a greater sense of reward was going to war.  I deployed to Iraq in 2005 as a Reserve officer.  Serving in a combat zone where *every* decision has some potential impact on people living or dying was incredibly rewarding but also incredible pressure.  Such an experience puts the pressure of a lawsuit in different perspective.  If the terrorists could not kill me, how worried do I need to be about opposing counsel or a judge in a lawsuit??  

And, of course, when you lose a buddy in war, you do appreciate that things that used to seem so awful may not be that bad.  If you are still alive, after all, how bad can things really be?  I know many employees feel they are going through the worst time of their life.  But, remember, you are still alive, after all.  So, yes, as bad as things really are, it could be worse……

 A little known provision in the National Labor Relations Act  provides protection to employees when they discuss "terms and conditions" of employment.  The discussion must be between two or more employees.  The purpose of this provision (remember, the NLRA was passed in 1935) was to protect employees who may be forming a union.  But, for workers today, it means you can discuss issues in the workplace if they truly relate to problems at work.  It does not matter that the discussions may not lead to the creation of a union.  So, for example, several years ago, there was a case where female employees discussed possible sex harassment at work.  The court found that was protected conduct.  They should not have been disciplined for those discussions. 

So, what does "terms and conditions" mean?  What topics will be protected discussion?  In general, the topic needs to apply to more than one employee.  But, if you are not sure, contact the National Labor Relations Board.  The NLRB enforces the NLRA.  The NLRB is very helpful.  

 It is always tough to fire an employee, no matter how much s/he deserves it.  But, speaking for the employee, it is can be much more difficult if the employer employs little or no finesse.  When to terminate employment is a big part of the equation.  Michael Maslanka gives some excellent advice, suggesting earlier in the week is better.  Over the years, I have heard from many employees, "I would have let it go, but then they did X to me."  What they mean is that often, they suffered some pretty clear discrimination or violation of some contractual right.  But, the employee did not become angry enough to see me or someone like me until the employer did something that was pretty insensitive.   A common tactic is to fire the employee on the spot and escort him/her out of the office.  That is huge.  That is when employees go see a lawyer.  

I appreciate the need to secure computers, files, etc., but employers should consider very carefully when they find it necessary to embarrass a worker in front of her co-workers.  I have some friends who run a chain of mom and pop sandwich shops.  They are very smart.  They do not have college degrees.  But, they understand this well.  They always fire someone with two weeks notice, unless a clear case of theft or its equivalent is involved.  Be firm, be tough, but do not embarrass……

 I am frequently asked about sex discrimination.  Until I retired last year, I was a member of Reserve/National Guard units for many years.  Sex harassment was an occasional topic of concern.  It is true that unwanted touching is clear sex harassment.  But, what about invitations to dinner?  What about persistent invitations to dinner?  If the person says no, how clear must she be?  How often does she need to say no?  What if the harassment comes from co-workers?  This is a very complicated subject, wrought with deep emotions on all sides. 

There are generally two types of sex harassment: hostile work environment (most often caused by co-workers) and traditional sex discrimination (in which a supervisor treats an employee differently due to the employee’s gender).  Hostile work environment refers to occasions when co-workers make a person’s work environment extremely difficult – and the co-workers(s) are motivated by the victim’s gender.  This is when you hear stories of graphic pictures hanging on the wall or sex based jokes.  As I used to tell my Guard/Reserve audiences, the only safe joke now is a good Aggie joke.  There is no place for gender based jokes in today’s workplace.  

Contrary to what some people, even some trained HR personnel, say, there is no easy formula for what constitutes hostile work environment.  It all starts with the alleged victim.  What does he/she say?  What does he/she find objectionable?  The HR/management team should complete a thorough investigation.  The employer is not required to be perfect or understand everything, but it is required to make a thorough investigation and take effective action if necessary.   One of the many challenging aspects of harassment, sex based or otherwise, is the employer must listen closely to the alleged victim.  Sometimes, the harassment consists of relatively harmless acts, such as refusing to invite the victim to critical meetings or even lunch, refusal to greet the alleged victim in the hallway, or worse.  So, it is important that the employer do something it may not often do: listen closely.  

But, in the end, it is about retaining trained, qualified, motivated employees.  So, the better the employer responds to one incident or one complaint, hopefully, the better *all* employees will perform.  In the end, a well-motivated workforce is a profitable workforce.  

 In a recent decision, the Fifth Circuit Court of Appeals in New Orleans found that referring to an adult African-American male as "boy" twice, as "doofus"and as "dunce" did not amount to racial discrimination.  See: Cavalier v. Clearlake Rehabilitation Hospital, Inc.   Cavalier was a director of nursing at the hospital.  The comments were made by another director.  Michael Maslanka, a well-known employment lawyer who typically represents employers, points out that this finding stretches reality.  In his blog, Work Matters, he appears to understand that to most people in Texas and the rest of the South, referring to an adult African-American male as "boy" is discrimination.  

But, as Mr. Maslanka adds, Mr. Cavalier resigned.  More importantly to the Court, Mr. Cavalier also declined an offer from Human Resources to resolve this conflict.  Resigning almost always weakens an otherwise strong case.  Declining assistance from HR is also unwise.  Do those failures make these comments, somehow *not* discrimination?  Not, probably not.  But, in today’s climate, where some judges look for reasons to find against an employee, employees must proceed very carefully.  Many judges have never held a menial job.  They have never had to answer to a capricious or arbitrary employer.  These judges may over-estimate the relevance of HR.  The employee who ignores that reality proceeds at his or her peril.  

The Wage and Hour Division of the Department of Labor.  WHD enforces the federal minimum wage law.  Its supposed to, anyway.  Turns out, as we pretty much knew anyway, they do not.  A study by the General Accounting Office finds that 9 times out of 10, WHD misses the boat.  The GAO used undercover agents to pose as employers and employees to test the efficiencies of the system.  They found numerous omissions, oversights and plain lack of caring.  

In one case, WHD failed to investigate a complaint that under-age children in Modesto, California ere working during school hours at a meatpacking plant with dangerous machinery.  Some WHD investigators even freely admitted that they dropped cases when the employer failed to return phone calls.  In many instances, when the employee would complain, the WHD investigator would simply remind the employee that they can file suit. 

The terrible thing about that is minimum wage workers are just that, minimum wage workers.  They do not have money to go and hire a lawyer when WHD fails their duty.  And, truthfully, low wage workers often do not have enough money at state to justify a lawyer taking their case on contingency.  $500 can mean everything to an average worker, but that is not nearly enough to justify many lawyers taking the case on contingency.  

The study addressed another issue I have heard from many clients over the years: reaching WHD over the phone requires a heck of a lot of patience.  In the study, some 76% of phone calls went to voice mail.  As I have heard many times, WHD is not good at returning phone calls.  

 Many times over the years, I have been asked or told that what the employer did was not fair.  The employee will tell me how they were fired with just one warning.  The employee explains that the employee handbook clearly says the employer must have three written warnings "before they can fire you."  

"Well," I reply in my calmest voice, "those employee handbooks are usually not binding."  If they contain provisions that this handbook is not binding or is not a contract, then the handbook is not binding.  That means the handbook’s requirement of three written warnings is not binding.  I then go through the various other possibilities regarding how three written warnings might be binding.  As usual, none of those other possibilities apply to the average employee.  So, yes, I must tell the employee, those requirements for three written warnings mean nothing.  They are not binding.  "Yes," I add, "an employer can fire you with one written warning, or even with no  written warning."  

This is known as "at-will" employment."  At-will employment is the general rule in Texas and most other states.  An employer can fire a person for a bad reason or for no reason.  There are only a few very limited exceptions to at-will employment in Texas.  At this point, I always add, that at-will employment may not be fair, but it is the law in Texas.  

At some point, I explain that the other side of the coin is that an employee can quit whenever s/he wishes.  But, somehow, I do not think that is what they wanted to hear……

 Title VII of the Civil Rights Act prohibits discrimination based on sex.  But, the Supreme Court has said that does not truly mean "based on sex."   Oncale v. Sundowner Offshore Services concerned some oil rig workers who harassed a fellow male employee in a sexual way.  But, they did not want or intend a homosexual relationship.  We now know that Oncale did not in any way find that harassment based on homosexuality was covered by Title VII.  Many court decisions since Oncale make that clear.  

But, is that fair?  More importantly, is that what Title VII says?  If an employee is fired because s/he will not participate in homosexual activity, is that fair?  Or, is it fair if an employee is fired because s/he does participate in homosexual activity?  Fairness is hard to find in the law, often times.  As lawyers, we have to look at what the law says, not necessarily what is fair.  If Title VII prohibits discrimination based on sex, then why does that not apply to all discrimination based on sex? 

A client of mine was harassed by a supervisor who was probably homosexual.  He harassed my male client in a sexual manner, grabbing his buttocks and making sexual innuendo.  The male supervisor almost certainly did not seek any sort of a relationship.  But, his harassment was apparently based on sex.  My client probably is protected by Title VII.  He may have remedy in the courts.  But, what if the supervisor did want a homosexual relationship?  if the boss did want a relationship, then my client has no remedies……