Its always a  bad sign when you fire a high ranking executive without following agency protocol. Yet, that is  what DHHs did when it demoted Dr. Rick Bright. DHHS froze Dr. Bright out of his email account with no warning. DHHS demoted Dr. Bight from the Biomedical Advanced Research and Development Authority, the agency in charge of vaccines. Now, Dr. Bright has claimed he was demoted because he opposed investing public funds in a questionable remedy, hydroxychloroquine.

The move was planned for a year. Yet, it came abruptly. We can only guess what that might mean. Dr. Bright has said he  will file an IG complaint with DHHS. Dr. Bright is a career public servant, not a political appointee. See Politico news report here.

The basis of his claim is not clear. He mentioned in his statement feeling pressured to provide funding to politically well-connected companies. That suggests a qui tam reprisal type claim. A qui tam action is one which alleges mis-use of federal funding. A person who reports mis-use of federal funds is protected from reprisal.

In forcing an abrupt departure with an unexpected freeze on his email account, DHHS has provided the doctor with helpful ammunition for whatever claim he will advance. This in an administration which already has an abysmal record in protecting whistleblowers. This administration has openly retaliated against whistleblowers.

Be Safe.

Over the last three weeks, 745,000 Texans have applied for unemployment benefits. That represents about 5.7% of the Texas workforce. That is more than applied in all of 2019. During the 2008-09 recession, the highest number of applicants in one week was 55,000. This current recession is on the way to setting records. Let us hope it will also set a record for shortest recession.

These numbers suggest the unemployment rate will rise to a level not seen since the Great Depression. One economist suggests a rate of 25% is possible.The CARES Act passed in March allows an extra $600 per week in benefits. That extra amount should start showing up next week, says Ed Serna, the TWC Director. See San Antonio Express News report.

Be Safe.

Secretary Modly’s visit to the Theodore Roosevelt (the “TR”) reflected a complete lack of leadership. According to the transcript, the Secretary essentially fussed at the crew for supporting Capt. Crozier. He told them to take care of one another and not to complain. See transcript here. Consider how public media came to possess a recording of his talk to the crew within hours. Someone on the crew cared enough to record the talk. Someone else then had to know enough about the media to connect with a reporter. Someone cared enough to contact media within hours of the visit. This should not shock anyone, but most folks in the military are not friendly to the media. But, in this instance, the crew was upset.

We get indications about why they were upset and why they gave Capt. Crozier the send-off of a lifetime. Vice Adm. Merz visited the crew the day after Secy. Modler’s visit. He spent some 1.5 hours with the crew at one meeting. He does not say it, but I am sure he likely spent much more time than that visiting with ship leadership. See a report about his visit here. Adm. Merz says the crew was scared about the virus. It did not believe the chain of command was addressing their concern. In any military unit, perhaps the greatest fear is that there will be some danger looming on the horizon, but the leadership appears disinterested.

In the military, it is not enough to address concerns. The leadership must also convey to the subordinate unit what it is doing. The chain of command failed the crew of the TR. If it was looking for ways to give them the medical support they needed, the upper levels of command failed to communicate that to the crew.

Re-watching episodes of “Band of Brothers,” I am reminded of a very high priority for every military leader: keep the crew or unit focused. Easy Company had an empty suit commander. 1LT Dyke was totally ineffective. He was absent most of the time, off on “walks.” In such a situation, it would have been easy for the soldiers to poke fun at their commander. If the NCO’s would mock the commander, that would surely infect the younger soldiers. The line that separates an effective, cohesive force and a mob is thin. So, the First Sergeant, the  highest ranking NCO, asked the other NCO’s to keep their comments about 1LT Dyke quiet. They did. So, a situation that could have caused panic was averted.

Secy. Modly’s visit to the TR lasted all of 30 minutes. It is hard to believe someone in upper leadership would travel all that way and not speak to the crew one-on-one. It is unbelievable he would go all that way without affording them a chance to talk to him. Instead, he spoke to them about 15 minutes over the ship intercom and then left. Contrary to what you see in movies, in real life, we do not direct the U.S. military from the top down – rarely anyway. Yes, commanders do issue orders and guidance. But, that guidance is always based on critical information from the bottom. The U.S. military is as much bottom driven as it is top-driven. That two way communication is critical.

Worse, Secy. Modly in telling the crew they should stop complaining, that they need not love their commander, and that their captain was “stupid” in risking his career to seek better medical support, would have caused panic. You can hear one sailor exclaim on the recording, “What the f—?” They were upset at this criticism about their commander. Adm. Merz in coming the very next day exactly the right thing. The crew needed to know leadership cared about their safety. It just takes time. Time is communication.

On Nov. 25, 2019, Judge Jason Pulliam granted the employer’s motion for summary judgment in Richardson v. The Medical Team, Inc., No. 18-CV-00151 (W.D. Tex.). It is a remarkable case. On Jan. 20, Renee Richardson emailed HR that she believed she was the victim of discrimination based on her race. She accused Alan Garza of discrimination. She was then out for a few days due to illness. Then Mr. Garza and others fired her on Jan. 27. One week after her complaint of discrimination, she was fired. To most of us, that chain of events would appear to amount to retaliation. But, not to the Western District.

Judge Pulliam noted rightly that the Plaintiff did not show that the persons who made the decision to fire Ms. Richardson were aware of her complaint of discrimination. The three executives denied being aware of her complaint when they decided to fire her. And, in truth, there is no guarantee that an email to HR will become known to the chain of command within one week. The HR representative testified that she was not sure if she received the email. Presented with the email, she said she had not seen it before. Email is fickle. Some emails do not reach their destination. But, it is also true that the HR representative has every incentive to not recall such an email. The Plaintiff did present evidence that at some unspecified time, Medical Team executives did in fact look for the Jan. 20 email. But, there was no evidence that they found the email, or that they found the email before they made the decision to terminate. That was a critical piece of evidence.

The challenge in every discrimination case is that the supervisors control all or most of the evidence. If they simply recall nothing, there is little the employee can do.

The rest of the case centered on whether the reason advanced by the employer for the termination, low census numbers, was a true reason or true concern for the employer. The court found there was insufficient basis to find issue of material fact for the articulated reason.

The court’s reasoning is not totally unreasonable. Still, the very suspicious timing is just that, suspicious. Surely a jury should decide if it can be inferred that the timing was something more than mere suspicion.

Be Safe.

One question that has arisen regarding this outbreak is can employers be liable if their employees contract the coronavirus? The Occupational Safety and Health Act has a general provision requiring employers to provide a safe working environment for its workers. That provision requires employers to provide a place of employment which is free from “recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” See OSHA website here. OSHA has not released specific coronavirus standards, yet. It is clear the COVID-19 virus is apparent enough today that the employer’s general duty will apply.

Employers should follow general advice from The Center for Disease Control and from OSHA regarding the coronavirus. The latest guidance from the CDC recommends working from home when possible and avoid gatherings of more than ten people. Workers should sit or work six feet from each other.

For businesses that are open, the employers can request additional information from employees about their health status, if they are showing symptoms. The employer can require the worker to stay home if s/he shows symptoms. One law professor says an employer could become liable if the employee can show s/he contracted the virus at work. That would, however, be a difficult showing, since the coronavirus has become so ubiquitous. See ABA Bar Journal report here for more information.

As we used to say in Iraq, Be Safe.

These are trying times, by any standard. This veteran of Iraq is starting to have war flash backs. If your employer is not taking precautions for the coronavirus, can you as an employee do anything about it? Yes, any worker can discuss with another worker any “term and condition” of the  job. That protection comes from Sec. 7 of the National Labor Relations Act. I previously wrote about that protection here. So, yes any two or more workers can discuss the lack of protections at work.

Yet, Amazon fired an employee who spoke openly at its New York warehouse about inadequate protections at work. See New York Post report here. Chris Smalls lead a walk-out at the Amazon warehouse on Staten Island. Amazon admits it fired Chris Smalls, a management assistant. But, the employer claims it fired him because he was not observing social distancing. But, it was just last week that workers walked out of the warehouse over concerns after a co-worker tested positive for COVID-19. Mr. Smalls was then fired the following Monday. Mr. Smalls was one of the leaders of that walk-out. The National Labor Relations Board will very likely investigate. Just based on timing alone, Amazon will have a very difficult case. Mr. Smalls had worked at the warehouse for five years before he was fired.

As we used to say in Iraq, Be Safe.

David Lat has been transferred out of the ICU. He has been taken off the ventilator. The founder of the Above the Law blog appears to be doing much better. His condition is serious but stable. He still needs an oxygen machine, but has progressed to solid foods. He  See the ABA Bar Journal report here.

Attorney David Lat, founder of the Above the Law blog, has contracted coronavirus. He is in critical condition and has been placed on a ventilator. He lives in New York and has been prescribed the malarial drug, chloroquine and azithromycin. Mr. Lat is a very healthy person normally, who has participated in two marathons. He is 44 years old. See ABA Bar Journal news report.

Be Safe.

A lot of folks have been laid off in the past week. We know this, because claims for unemployment have skyrocketed. In 2019, some 13,600 Texans applied for unemployment each month, back when the economy was doing very well. This week, 155,657 Texans have applied for unemployment. That is an 800% increase. See Texas Tribune report. In 2008-2009, during the Recession, the largest number of claims amounted to 55,000 in one month.

As I mentioned before, 26 weeks is the maximum unemployment benefit period. But, the bill which was passed last week will add  another 26 weeks, if the unemployment rate rises 10% or more. See my prior post about that first bill  here. It does seem certain that the unemployment rate will rise quite a bit. We may blow past that 10% requirement, unfortunately.

As we said in Iraq, Be Safe.

Gilbert Garcia, a wonderful writer at the San Antonio Express News has penned a column about the coronavirus and working from home. He writes about the experience and what we learn from working from home. His column suggests we learn that many workers fear being away from work and being out of the loop. But, for many workers, the experience will likely have a very different lesson: that working from home is doable. In so many discrimination lawsuits, persons with disabilities have been told they cannot work from home, even when practical considerations suggest otherwise. Many requests for accommodation ask to work from home either full-time, or simply some of the time. Employers typically argue that the nature of the job requires working at the work place only. Whether a person can accomplish specific tasks while working from home becomes a major fact issue.

In Credeur v. State of Louisiana, No. 16-30658 (5th. Cir. 6/23/2017), the employe argued that she could work from home and that she needed to work from home due to her disability. The employer argued that her work was team oriented and could only be performed at the work place. The Fifth Circuit essentially sided with the employer. I previously wrote about that decision here. In many of these denials of telecommuting, in my opinion most employers just do not trust the employee. They do not trust the employee to work from home. In court and in administrative proceedings, the employer argues that everyone needs to be at work, they rely on team effort, etc. I think we may find over the next few months that working remotely is indeed possible.

As we used to say in Iraq, Be Safe.