Pres. Trump and others are trying to “out” the Ukraine whistle blower. If they do name the whistle blower, they will violate the Intelligence Community Whistleblower Protection Act. The ICWPA does not provide a private right of action. The only mechanism available to a whistle blower is to submit an internal complaint. The Ukraine whistleblower did just that. He submitted an internal complaint to the Intelligence Community Inspector General. The statute specifically provides that the IG cannot publicly name the whistle blower. See 50 U.S.C. Sec. 3033(g)(3)(A). The statute does not specifically state that someone else cannot name the whistle blower. Does that omission mean that someone else can publicly disclose the Ukraine whistle blower?

No, it does not. The President of the United States must enforce the ICWPA. The President is specifically charged with enforcing the ICWPA act and all intelligence laws. The act specifically states that a whistle blower will not suffer reprisal. Caselaw, the Department of Labor, and the Securities Exchange Commission have all found that disclosing the name of a whistleblower constitutes retaliation.  See National Law Review piece by Stephen M. Kohn of the National Whistleblower Center here. The National Whistleblower Center is a non-profit which supports whistle blowers. I have used them as a resource for years. See the NWC site here.

The ICWPA provides that “employees” in a position to take reprisal may not take reprisal against a whistleblower. See 50 U.S.C. Sec. 3033(g)(3)(B) (“no action constituting a reprisal, or threat of reprisal, for making such complaint or disclosing such information to the Inspector General may be taken by any employee in a position to take such actions”). Once a person makes a complaint to the IG, then Sec.    3033(g)(3)(B) kicks in.

It is ironic, but it is Pres. Trump’s statutory duty to protect the identity of the Ukraine whistleblower. And, that makes sense. It would be non-sensical if the IG was prohibited from breaching the confidentiality of a whistleblower, while management was not similarly constrained.

There is a federal statute which prohibits the naming of an Intelligence Community whistleblower. I previously wrote about that federal statute here.  The statute specifically prohibits the Inspector General for the Intelligence Community from naming any whistleblower. See 50 U.S.C. Sec. 3033(g)(3)(A). But, the law probably also prevents any federal official from naming a whistleblower. Since, if a particular  whistleblower is named, that will serve to chill other potential whistleblowers in the future.

Yet, the President of the United States, the chief executive, who is charged with enforcing all federal statutes, published the supposed name of the Ukraine scandal whistleblower in a tweet this last weekend. Twitter took down the tweet. See NPR news report here. The President does not even know for sure the name of the whistleblower. But, in his frustration, he may not care. If the leader of the free world cannot be persuaded to observe the law, how can we expect a mid-level manager to obey the same statute?

There is a famous passage from the play, A Man for All Seasons. William Roper suggests to Thomas More that in certain circumstances, a person should disregard the law. He can, suggests Roper, disregard the law in order to cause harm to the Devil. St. Thomas More responds, angrily:

“Oh, and when the last law was down, and the Devil turned around on you–where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast–man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

Laws exist for a reason. If we ignore them, we must have a better reason than mere annoyance and impulse.

A jury in Taylor County (Abilene), awarded $2.5 in a whistle blower lawsuit. Chad Carter, the former City Engineer for the City of Abilene, complained to the Texas Board of Engineers about the City of Abilene’s failure to follow the Texas Engineering Practice Act when it built several roads. The jury awarded some $100,000 in lost pay and benefits and $2 million in compensatory damages (emotional suffering type damages), and $500,000 in attorney’s fees.

City Engineer Carter said the City did not have an engineer oversee various road construction projects, in violation of the Texas Engineering Practice Act. The City did hire an engineering firm after the roads had already been built to inspect the roads and after Mr. Carter complained. The engineers found no deficiencies. (Ok, I am not an engineer, but if there was a problem with the base of the road, how would an engineer know that after the fact? Way back when, when I worked summers on road construction projects, the engineer was out there everyday with us watching and doing whatever engineers do). Mr. Carter filed suit based on the Texas Whistleblower Act.

Mr. Carter’s employment was terminated within 90 days after he filed his first complaint. See reports by KTAB news herehere and here. That 90 days does create a presumption that he was fired due to his whistle blowing activity.

What happens when an employee files suit, perhaps unaware of the existence of a forced arbitration agreement? How long might a lawsuit progress before the employer mentions the supposed arbitration agreement? In Vectra Infosys v. Adema, No. 05-18-01371 (Tex.App. Dallas 8/28/2019), the employer responded to the lawsuit and conducted extensive discovery. The employer filed a motion to quash a deposition. It submitted a no evidence motion for summary judgment. This all occurred before Vectra invoked the forced arbitration agreement nine months into the lawsuit. Has the employer waived the right to invoke the alleged forced arbitration agreement? The Dallas court of appeals no, it did not waive its right to bring up the purported agreement.

The employer did not move sooner to compel arbitration, because it had just bought the company and was not aware of the alleged agreement. Plaintiff Adema claimed this late date would “inherently” cause him prejudice. But, said the court, the plaintiff offered no evidence of that prejudice. The court felt the plaintiff could use the same discovery in the arbitration. The plaintiff argued that he would be responsible for half the arbitration fees. But, again, the court noted that the plaintiff did not offer evidence showing he would be responsible for half the fees. The court distinguished the result in Perry Homes v. Cull, 258 S.W.3d 580 (Tex. 2008). That case did indeed find waiver and did find harm to the plaintiff. But, said the Dallas court of appeals, the plaintiff in Perry did include the very extensive docket sheet for that case in opposing the motion to compel arbitration. The court could see the lengthy litigation prior to the defendant invoked arbitration. The plaintiff in Perry asked the trial court to take judicial notice of the many motions and discovery instruments submitted before Perry Homes invoked arbitration.

In Vectra, the dissent was concerned about the clear manipulation by the employer. Vectra Infosys invoked arbitration shortly before trial and just before a hearing regarding the president’s refusal to answer certain questions at his deposition. See the decision here.

Despite what the Dallas court of appeals says, it is not at all certain that the arbitration will allow the plaintiff to make use of the already completed discovery. Some arbitrators just flat do not allow discovery, or they substantially curtail the sort of discovery an employee may pursue.

We are seeing in real time what happens when an employee blows the whistle on his/her employer or when s/he complains about discrimination. Pres. Donald Trump has reportedly discussed firing the White House employees who have testified against him. He has discussed returning LTC Vindman to the Pentagon and firing Ambassador Bill Taylor after they testified against him. See CNN news report here. For a military officer, sending LTC Alexander Vindman back to the Army would amount to being relieved.

The President has also considered firing state department employees, George Kent and Marie Yovanavitch.

All employers consider responding to complaints in this way, to some degree. The difference between other government employers or many corporate employers is that Pres. Trump has likely received no training in values. Most government employers and many corporations utilize some form of training on values. One of those values is that persons who complain about discrimination or about violations of the law are protected. Even if you do not agree with their complaints, most managers agree their right to complain should be protected.

The President is famously resistant to legal advice. He will be even more resistant when he feels in real time the press of persons submitting public complaints about him. There is a reason why the better run organizations provide that training before the crisis, not during the crisis.

Of course, the larger issue for Pres. Trump is that one of those employees. Marie Yovanavitch has accused him os smearing her. If he actually fires her and others who support her, such an action would only corroborate the charges against him. That presents a different topic: clients who do not listen to advice from their lawyers.

A court in New Jersey struck the entire closing argument made by the defense attorney in a lawsuit against Johnson & Johnson. Several plaintiffs are suing Johnson and Johnson on the basis that asbestos in talcum powder decades ago caused them to contract mesothelioma in the plaintiffs’ stomach linings. Mesothelioma is a type of cancer. The defense lawyer, Diane Sullivan with Weil, Gotshal & Manges, argued in her closing argument that the experts for the plaintiffs had created evidence. Ms. Sullivan said the experts did not find a connection between the talcum powder and mesothelioma until they were hired by the plaintiffs. The defense attorney said the plaintiffs and/or the experts had created their evidence.

Judge Ana Viscomi said she she had warned Ms. Sullivan about her conduct. The judge said it would not be possible to strike only the offensive portion of her argument. It is unusual to strike an entire closing argument. Typically, a judge will simply strike the one or two portions that violate some rule. Ms. Sullivan was previously recognized for her success in defending Johnson & Johnson in a prior lawsuit. She was named a winning litigator for 2019 by the National Law Journal. See ABA Bar Journal news report. But, this time, it appears she was not a winning litigator.

 

The Western District of Texas granted summary judgment involving a CPS worker. The City Public Service worker, Gabriel Sanchez, was employed as a cable splicer for CPS Energy. He was out on medical leave for PTSD when he was fired in 2016. The worker was involved in a second “flash” incident in which he cut through the wrong cable. This was his second flash incident, the causing PTSD. CPS defended the case saying Mr. Sanchez had a “pattern” of safety violations.

The Western District accepted Defendant’s characterization of the so-called “pattern” of safety violations. Even though, management level employees indicated that the decision was made during a meeting  in February, 2016. At that meeting, just one of the flash incidents was discussed. At the same meeting, the managers also discussed Plaintiff’s PTSD diagnosis. The Plaintiff was scheduled to return to work at CPS the day before he was fired on March 8.

The Court found the testimony was clear that no manager discussed Plaintiff’s PTSD at the February, 2016 meeting. Though the court’s opinion is well documented, it appears the Court disregarded inferences that some managers likely did discuss Plaintiff’s PTSD diagnosis at that critical meeting. If the managers did discuss the diagnosis, that suggests the diagnosis played some role in the decision to terminate the 16 year worker. Even if it is only a possibility that the mangers discussed the PTSD diagnosis, summary judgment was not appropriate.

The Court noted that Mr. Sanchez was not released back to work by March 7, 2016. But, CPS did not know his status on March 8. The decision to fire him was not based on not being qualified to work. It was based on his alleged pattern of safety violations. His TWC work status said he would return to work on March 21, 2016. But, CPS had no knowledge of that recommendation when it made the decision to fire him on Feb. 16, 2016. CPS then conveyed the termination decision to Mr. Sanchez on Match 8. So, even though there might be a factual issue regarding his ability to work on March 8, his ability – or not – did not apparently factor into the decision to fire him.

It did not help his cause that the Plaintiff testified that he did not consider himself to be disabled, but his doctors believe he has a disability. The Court was troubled by the worker’s status as of March 8. It found that he was not qualified to work as a cable splicer as of March 8. The Court noted the recommendation that he not do electrical work. But, as Plaintiff noted, a recommendation does not mean he cannot do electrical work. The case shows the difficulty in prosecuting cases in which the medical evidence is not 100% supportive of returning to work. But, in the real world, medical advice is often inconsistent. The Western District has again reviewed factual issues and weighed evidence. See the decision in Sanchez v. City of San Antonio here.

Many potential clients, friends and some folks I barely know share their knowledge with me about employment law.  Unfortunately, many of them are flat wrong. Here are a few of the more common employment law myths I encounter.

  • At will

“At will” employment means an employee can be fired for anything.” Texas is an at-will state. An employee can indeed be fired for a lot of things, but not for sex, religion, race, national origin, disability, violation of laws, etc. So, yes, an employer can fire you for wearing a blue tie to work, but not because you are too old.  The anti-discrimination statutes provide several exceptions to the at-will doctrine.

  • Probation period

“Probation periods means an employee can be fired for anything.” Not quite. A probation period means an employe can be fired for anything except sex, religion, race, national origin, disability, violation of laws, etc.  See above paragraph.

  • Copy of file

“Employees have a right to a copy of his/her personnel file.”  That depends on whether the employee is public sector or private. There is no authority in Texas law which says employees of private businesses can obtain a copy of their personnel file. As a public sector employee, an employe’s rights are governed by the Freedom of Information Act for federal employees and the Open Records Act for state employees. I can find no authority providing that a private sector employee has a right to a copy of his/her personnel file.

  • Rest breaks

“Employees get periodic breaks during the work day.”  I was told as a young warehouseman that we had a right to a 10:00 o’clock break and another at 3:00 pm.  The times could vary slightly, but that was the idea. Since then, I have looked for the authority for those breaks. There is no such authority. Most likely, that is or was part of the influence of collective bargaining agreements (union agreements). CBA’s do often provide for such breaks. But, for non-union employees, there is no authority for a mid-morning break and a mid-afternoon break. There is no state law or regulation on rest breaks or meal breaks. Federal regulations do not require a meal break. But, Federal regulations used to encourage work places to provide rest breaks, but notes a requirement. That provision was formerly found in 29 CFR Sec. 758.18 as recently as 2016. But, today, the term “rest break” is nowhere to be found in the federal regulations.

  • Non-compete agreements 

Some folks outside and inside Texas believes non-compete agreements are not enforceable in Texas. Yes, they are and have always been enforceable. They more enforceable with the decision in Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2010). But, then the Texas Supreme Court issued the decision in Exxon Mobil Corp. v. Drennen, 452 S.W.3rd 319 (Tex. 2014) which stated that the Marsh decision did not involve a “covenant not to compete.”

  • Free speech

The right to free speech exists only for government workers. There is no general right to free speech in a private workplace. But, there is protection for employees who discuss “terms and conditions” of employment. Those sorts of discussions are protected by the National Labor Relations Act. But, as far as discussing politics, football or cooking, there is no right to discuss whatever a worker wishes in the private workplace. I previously discussed the NLRA protections here.

  • Whistleblowing

There is no general whistle blower protection in Texas. I think most people think of whistleblowing as reporting wrongdoing to some law enforcement type entity. Employees in the private sector do not have protection against whistleblowing. But, there is a protection against requiring employees from violating criminal statutes. This sort of lawsuit is known as a Sabine Pilot type action. I discussed Sabine Pilot actions here. So, merely reporting administrative violations which do not have a criminal punishment, there are no such protections.

  • Not Written up before termination

People still ask me or tell me that the employer did not write them up before firing them. Well, employers do not have to do that. Yes, most large employers have nice looking employee manuals which state that employees must be written up before termination. But, these manuals are not binding. They have not even been arguanbly binding since about the early 1990’s. This is one employment myth that may never go away.

  • Privacy

Some folks still think they have some degree of privacy at work. Email is a frequent issue. Generally, email produced with use of the employer’s equipment and server belongs to the employer.  The employer may review your email anytime. I wrote about workplace email here and here.  The one exception appears to be when the employee accesses his/her private email server which is password protected.

There is no prohibition on private sector employers searching desks to my knowledge. But, the U.S. Constitution Bill of Rights applies to state governments. So, in the public sector, a worker has some protection from unreasonable searches if s/he has a reasonable expectation of privacy” that society is prepared to recognize as reasonable. See O’Connor v. Ortega, 480 U.S. 709 (1987), on remand, Ortega v. O’Connor, 817 F.2d 1408 (9th Cir. 1987).  But, the “expectation of privacy” can be limited by office practices and by legitimate regulation. And, HIPAA does protect medical information in most work situations.

So, as I tell folks on occasion, if you want fairness at work, then form a union.  Or, persuade your state legislature to make a few changes in the law, so all workers will benefit.

A no-Spanish rule is very problematic for any employer, but especially so in San Antonio. Yet, that is the rule allegedly imposed by the La Cantera resort. So, it is not surprising that La Cantera is settling the EEOC lawsuit against it for $2.6 million. La Cantera claims it did not have a no-Spanish policy. But, the evidence is substantial. If the evidence was weak, it is certain La Cantera would not settle for such a large amount. I previously wrote about that lawsuit here.

The lawsuit alleged discrimination based on speaking Spanish. The lawsuit alleged retaliation for opposing that policy. Destination Hotels and Resorts formerly operated La Cantera. Destination was the named defendant. Twenty-five plaintiff employees will share in the settlement. According to the lawsuit, Destination imposed the no Spanish policy soon after it assumed control of the resort in 2013. One employee said he and his co-workers were disciplined as often as every week for speaking Spanish.

One employee, Sergio Vitela, was fired after he complained about the policy. He had been working at the resort for 12 years when he was fired. Yes, settling this lawsuit was a wise move by Destination. See the San Antonio Express News report here.

 

At an en banc hearing before the Second Circuit Court of Appeals, Trump lawyer William Consovoy said if the President shot someone on Fifth Avenue in New York City, he would be immune from criminal investigation. I was not there, but am sure Judge Denny Chin was not impressed by that assertion. There is limited law on Presidential limits, but there is substantial caselaw providing that there are indeed limits on Presidential authority.

As early as the prosecution of Aaron Burr in 1807, Justice John Marshall found that a subpoena duces tecum (a subpoena requesting production of documents) could indeed be served on the President. In 1952, Pres. Truman reacted to an imminent strike by steel workers by seizing the steel companies. The Supreme Court found that act amounted to an over-reach by the President. The court found Pres. Truman was trying to make law through an executive order.

In 1974, the Supreme Court ruled that Pres. Nixon had to obey a subpoena for the infamous Watergate tapes. In 1997, the Supreme Court found that Pres. Clinton must sit for a deposition in a civil lawsuit. See ABA Legal Fact Check here.

Lawyer Consovoy was surely aware of this precedent when he appeared in front of the Second Circuit. And, he knew the Second Circuit judges would also be aware of that precedent. It appears he was trying to please his client, at the expense of losing his credibility with the court.