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, so long as the discussions concern problems at work.  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 theNational Labor Relations Board.  The NLRB enforces the NLRA.

We can disagree with the findings of some judges. But, the Trump appointed judges do seem to favor hyperbole. I wrote about a Fifth Circuit decision in which three Trump appointed judges argued that funding one federal agency through a second federal agency amounted to “despotism.” See that prior post here. Now, another Trump appointed judge in the Ninth Circuit (California) has also tried to make his point via hyperbole. The appeal in Golkar v. City of San Diego, No. 21-55046 (9th Cir. 10/26/2022), concerned San Diego police officers who would mark the tires with chalk, to enforce parking time limits. Two plaintiffs filed a class action arguing that chalking their tires violated the Fourth Amendment prohibition on search and seizure without a warrant. The car owners, they argued, did not give the police permission to mark their tires.

On appeal, the majority opinion found the chalk was a de minimis effect which did not infringe upon personal liberty. But, Judge Bumatay, appointed by Pres. Trump, dissented. He believed the chalk violated the framer’s intent. Looking back at American Revolutionary history, he compared chalking tires to  the “Crown officials’ abuse of investigative tools’ that ‘helped spark the American Revolution.” The majority opinion viewed this dissent as “analysis by hyperbole.” See the ABA Bar Journal report here. I do not think Sam Adams or Thomas Jefferson were appalled by British soldiers marking houses or carriages with chalk in 1776.


Nine years after the death of Cameron Redus, his family settled their lawsuit against University of the Incarnate Word. I previously wrote about that lawsuit here and here. UIW embarked upon a creative defense in which it argued that its police force was an arm of the state government, and therefore, immune from suit. It was a dubious defense. UIW is a private university and always has ben. Yet, that defense had enough legs to drag the suit out for years while the appeals were considered. The suit was filed in 2014.

Trial had been set for Sept. 19, 2022. That trial setting likely led to more serious sorts of negotiations. See San Antonio Express News report for more information.

There are folks with disabilities who test public accommodations like a hobby. They do this testing across the country, often from great distances. They justifiably want to see stores, hotels, banks and more satisfy the Americans with Disabilities Act requirement to make their places of business open to persons with disabilities. But, can a tester file a lawsuit based on his/her test?

The First Circuit says yes. The First Circuit found Debbie Laufer has standing to sue in federal court for a violation of the public accommodation provision found in the ADA. Ms. Laufer relies on a cane and wheel chair to get around. She visited the Coast Village Inn and Cottages website and did not see any accessibility information. Neither did several third party booking sites have such information in regard to that hotel. But, the ADA requires websites to post such information.

Hundreds of Lawsuits

As the hotel pointed out, Ms. Laufer has filed hundreds of such lawsuits around the country. She does not intend to actually stay at most, or perhaps all of these hotels. But, the First Circuit ruled that Ms. Laufer did indeed suffer a concrete and particularized injury when she could not locate such information. She suffered humiliation and embarrassment, said the court. The First Circuit relied on a 1982 Supreme Court decision which recognized the right of a fair housing tester to file suit. The Laufer court did note that other circuits, including the Fifth Circuit, have reached the opposite result. Indeed, the Fifth Circuit decision was also filed by Ms. Laufer. See the Fifth Circuit decision in Laufer v. Mann Hospitality, 996 F.3d 269 (5th Cir. 2021) here.

See decision in Laufer v. Acheson Hotels, No. 21-1401 (1st Cir. 10.5.2022) here. See the ABA Bar Journal article here. What does this suggest for other sorts of testers? Even today, there are testers for defamation. Will they now be able to file suit?

For some 10-15 years, employers have been trying to save some money by transforming traditional employees into independent contractors.  Different entities use different tests to determine whether an employee is truly an independent contractor. I previously wrote about the various tests here. One commonly used test is that employed by the Texas Workforce Commission. The TWC test looks at:

  • Who tells the employee how to do the job: a true independent contractor determines himself how he will accomplish a given task.
  • Training: who provides the training: a true independent contractor provides his own training.
  • Integration: the services of an independent contractor are easily separated from that of the larger employer.
  • Services rendered personally: a true independent contractor can assign the task to a subordinate and need not perform the service personally.
  • Hiring, supervising: an independent contractor can hire, select, pay the workers himself.
  • Continuing relationship. The work of an independent contractor is usually of a definite time period. It does not continue in perpetuity.
  • Set hours of work: an independent contractor sets his own hours.
  • Full time required: an independent contractor need not work for the employer exclusively.
  • Location of services: an independent contractor performs the work where he chooses.
  • Order of sequence. An independent contractor is concerned only with the final product. The sequence in which the work is performed do not concern him
  • Oral or written reports: an independent contractor is usually not required to submit regular reports or updates.
  • Payment by hour, week or month: an independent contractor is generally paid by the job, not by a set time period.
  • Payment of business & travel expense: an independent contractor is normally paid for his/her business and travel expenses.
  • Tools & equipment: an independent contractor provides his own tools.
  • Significant investment: an independent contractor has a significant investment in his business. An employee has little or no investment in the business for whom the work is performed.
  • Profit or loss: an independent contractor can realize a profit or loss from one job depending on the result.
  • Working for more than one firm at a time: an independent contractor often works for more than one business at a time.
  • Making service available to the public: an independent contractor generally makes his services available to the public at large. An independent contractor may hang a shingle or advertise his services.
  • Discharge without liability: if the work satisfies the contract terms, an independent contractor cannot be fired without incurring liability for breach of contract.
  • Right to quit without liability: an independent contractor is legally responsible for job completion. If he quits, he becomes liable for breach of contract.

These are 20 factors in the TWC test. The other tests also include many different factors. But, generally, the courts look to a few factors more than most: right to hire/fire; providing one’s own tools and equipment for the work; freedom to take on other work; how integral is the work to the business; and how the employee is paid are probably the most important factors.

If the work to be performed is so integral to what the business does, the courts are less likely to see the work as a true independent contractor. For example, if a bakery hires someone to bake a certain type of pastry, that worker is likely to be viewed an an employee. But, if the same Baker hires someone to install a new electrical lamp, that work will be seen as not integral to the sort of work normally performed by that bakery.

See the TWC website here for more information.

The Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, 597 U.S. ___, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022),  is an odd decision. In that opinion Justice Thomas found that no law regarding possession of firearms could withstand judicial scrutiny unless it could be shown that the law fits with historical tradition. See that decision here. Historical custom or tradition has always been a factor, but more as an interpretive tool for ancient statutes and decisions. Justice Thomas’ decision has elevated historical research to a level on par with actual Second Amendment precedent. One judge in Southern Mississippi has tried to wrestle with that strange judicial standard and is annoyed. U.S. District Judge Carlton Reeves wrote a critical opinion about Bruen and expressed his frustration.

In a lawsuit that challenges the limits on felons to own firearms, Judge Reeves called on the parties to submit briefs regarding whether he should hire a historian to advise him on historical tradition in regard to felons owning forearms. He said he is not an expert in historical traditions and neither are the Supreme Court justices “in what white, wealthy and male property owners thought about firearms regulation in 1791.”

Judge Reeves noted historians are divided on whether the second Amendment pertains to individual right to bear arms or to a collective right. Yet, the Supreme Court is requiring him to play historian in the name of constitutional adjudication. See ABA Bar Journal report here.

The Bruen decision is truly odd in requiring judges to do exactly what Judges Reeves said, to “play historian.”

In a very brief order, the Fifth Circuit ordered the release of Catherine Engelbrecht and Gregg Phillips, the two heads of True the Vote. Otherwise, the district court’s order remains in effect. Neither Ms. Englebrecht or Mr. Phillips have yet to disclose the name of the second analyst who supposedly showed them proof that Konnech had stored poll worker information on Chinese servers. See my prior post about this contempt finding here. Since their confinement, the two True the Vote leaders have turned their plight into a major cause and a nice fund-raiser, says Texas Tribune. See Texas Tribune report here. They have been selling merchandise emblazoned with “FREEOM!” including mouse pads, hoodies, hats and mugs. As I mentioned before, it is extremely rare to find a party litigant in contempt, much less send them to jail. I expect Judge Hoyt had good reason to do what he did.

See the Fifth Circuit order here.

A jury verdict for $366 million is very rare. It is especially rare for a single plaintiff case. It is even more rare in federal district court. Yet, that is exactly what happened in Harris v. Fedex, No. 21-CV-01651 (S.D. Tex.). Jennifer Harris sued Fedex for discrimination and for retaliation after she complained about discrimination. Harris, African-American, sued under Title VII of the Civil Rights Act and under 42 U.S.C. Sec. 1981. There is no cap under Sec. 1981.


Ms. Harris was a rising star for Fedex, with several company awards.  In 2019, her supervisor asked her to accept a demotion. Harris complained to Human Resources and said this was discriminatory. She was then disciplined three months later. She had no negative performance evaluations or written discipline prior to her first complaint of discrimination. Harris’ supervisor then started to sabotage Harris’ commission structure, even though her performance remained at a high level. Harris complained about discrimination again a few months later when her supervisor. Fedex conducted a meaningless investigation into her claims. The employer then fired Harris.

In October, 2022, Ms. Harris’ trial lasted seven days. The federal six-person jury deliberated for a day. It sent out a note saying it was deadlocked. The judge then urged them to continue. The jury then sent another note asking if they could assign some money to force the company to implement better systems to prevent discrimination. The judge replied, no. The jury ultimately awarded over $1 million in compensatory damages and $365 million in punitive damages. Fedex says it will appeal.

See Law360 article here. There are probably a few FedEx lawyers wishing they had settled this case.

Well, Catherine Engelbrect and Gregg Phillips appeared in Judge Hoyt’s court room on Oct. 31, and they did indeed refuse to provide the name of the second analyst. See my prior post on this wild hearing here. So, Judge Hoyt ordered they be confined in jail until they release the name. Engelbrecht and Phillips claim the second analyst is in danger from drug cartels.

New Lawyers

It turns out True the Vote replaced their earlier lawyer, Brock Akers, after he provided the name of the first analyst in court. Mr. Akers did not appear at the second October hearing. That does suggest True the Vote fired him and hired a new lawyer, Michael Wynne. At the Oct. 31 hearing, Mr. Wynne argued that the second analyst does not have the data, because it is too large. Judge Hoyt, unmoved, simply responded “I don’t know that and neither do you.” The judge appears to still question the credibility of Ms. Engelbrecht and Mr. Phillips. Certainly, the judge cannot credit anything anyone says, because Engelbrecht’s and Phillips’ testimony was too inconsistent. They contradicted their own testimony. Too, the two true the Vote leaders admitted they had no first-hand knowledge about the data. They only saw it displayed on a computer screen.

Mr. Wynne offered into evidence several text messages between Engelbrecht and what they claim are FBI agents. But, again, the judge was not interested. He expected them to reveal the name of the second analyst and nothing else. The lawyer for Konnech said three weeks ago, the FBI made it clear they had no interest in maintaining confidentiality with this matter.

Too, claiming someone is in danger from “drug cartels” is just over the top. Such a claim needs support. Where is an affidavit from the second analyst making the claim himself? The affidavit can be filed under seal. But, someone must first testify with first-hand information about these wild claims.

Call for Donations

Two hours after they entered a jail cell, Engelbrecht and Phillips issued a call for donations on Truth Social. They posted: “And ye shall know the truth, and the truth shall make you free. John 8:32,” the organization posted. “To join us in cause, please donate here.” See Texas Tribune report here for more information.

This is what happens when amateurs are sent to jail. If they were true reporters, they would have a boss and more independent legal advice. Someone would explain to the reporter that in court, you cannot claim “danger: – unless a credible person can testify with first-hand testimony about that alleged “danger.” Even if there was danger to someone, the name would still have to be provided. Persons cannot harm the reputation and business of someone else without providing evidence of their claims. In a democratic country, that is how the legal system works.

There have been a lot of crazy lawsuits since 2020. One of those lawsuits concerns True the Vote. True the Vote is a conservative Texas non-profit that has been around for many years. They participated in the opposition to the recall of former Republican Gov. Scott Walker in Wisconsin. True the Vote was the primary source for the psuedo documentary, 2000 Mules. True the Vote is headed by Catherine Engelbrecht. Gregg Phillips sits on the board. Starting in 2021, True the Vote has been claiming that an election logistics company known as Konnech has stored the records of 1.8 million poll workers on servers based in China. Konnech denies these claims. Kenneth says it stores all its data on U.S. based servers. Konnech sued True the Vote for defamation.

True the Vote has claimed that it hacked its way into Konnech’s data files and looked at the records of 1.8 million poll workers. It has been saying that it hacked its way into the servers simply by guessing a simple password. True the Vote claims Konnech is owned by the Communist party of China. In reality, Konnech is owned by Eugene Yu, who lives in Michigan. True the Vote claims he is a Chinese “operative.”

Temporary Restraining Order

Konnech sought a temporary restraining order early in the suit. Judge Hoyt granted Konnech’s motion for a TRO at a September, 2022 hearing. The order prohibits True the Vote from accessing or attempting to access Konnech’s computers, or disclosing any contents of their computers. He also ordered the organization to provide more information about how they acquired their information. That the judge granted the request for a TRO is signficant. It means Judge Hoyt believes that Konnech’s case has some merit.

Early October Hearing

As with any lawsuit, Konnech has sought discovery of True the Vote’s basis for its claims. But, True the Vote resisted that discovery. Konnech then filed a motion to compel and sought sanctions from True the Vote for resisting those discovery requests. In a court hearing in early October, Judge Hoyt, grew visibly exasperated with the Defendants. In that hearing, the two lawyers for True the Vote resisted naming their source in court. For two hours in court, they argued that revealing the name of the person would expose him to danger.  Judge Hoyt, however, insisted they disclose the name. The two lawyers then wrote the name on a legal pad and showed it to the Konnech lawyers. The Konnech lawyers then insisted the True the Vote lawyers read the name out loud in open court. They wanted a record showing the name had been provided, perhaps to ensure the True the Vote lawyers were providing truthful information. The True the Vote lawyers then read the name out loud, so it would be part of the court’s record.

Judge Hoyt, a federal judge since the 1980’s, then warned the True the Vote lawyers. He said he did not trust the veracity of Englebrecht and Phillips, in part because they had not submitted written affidavits in support of their defenses. The Judge suggested the True the Vote lawyers may be “getting played” by their clients.

And, of course, about the time of the early October hearing,. Eugene Yu was arrested in Los Angeles, California. True the Vote denied any involvement in his arrest. And, he was indeed charged with storing information on Chinese servers, in violation of a contract with Los Angeles.

Second October Hearing

Then, at a second hearing in October, Engelbrecht and Phillips appeared in court. And, again, the Judge grew impatient with True the Vote and their lawuers. It sounds to me like the lawyers simply lodged too many unsupported objections. For example, as the Judge would ask follow-up questions of Ms. Englebrecht, the True the Vote lawyer would object that the Judge was mis-characterizing Ms. Engelbrecht’s testimony. This is a modestly BS objection. Any witness can or should be able to address a mis-leading question. More often, when a lawyer objects that the witness’ testimony is being mis-characterized, in reality the lawyer is trying to signal to his/her client to be careful with that question. Too, objecting to how the judge phrases a question is sure way to antagonize the judge.

No surprisingly, Judge Hoyt became very annoyed and told the lawyer to take his seat and to not get up again. This was a very critical area of questioning. The Judge was asking who, when and how the data was allegedly obtained. As Engelbrecht testified, there was probably a second analyst involved in the alleged hacking. Too, the hacking itself may have never occurred. Her testimony was not clear. In various interviews on public media Ms. Engelebrecht and Mr. Phillips have variously said there was hacking, that there was no hacking, that there was no password, and that the password was easy to guess.

Second Analyst

But, as the five hour hearing came to a close, Ms. Engelbrecht’s testimony still was not clear. There might have been a second analyst involved in whatever hacking or breach occurred. At the end of the hearing, with no fanfare, Judge Hoyt simply said he found Englebrecht and Phillips in contempt. That is also unusual. It is rare for a federal judge to rule from the bench at the close of a hearing. The Judge said he expected True the Vote to return to the courtroom by 9:00 am. Monday, and reveal the name of the second analyst. If the witnesses, Engelbrecht and Phillips did not appear, they would be arrested. It is also quite rare for a judge to warn Defendants they could be arrested for failure to appear. Clearly, he believed they might otherwise consider not appearing.

During their testimony, both Mr. Phillips and Ms. Engelbrecht had resisted providing the name of the second analyst, or even admitting there was a second analyst involved in some vague breach of Konnech’s computers. The two witnesses claimed such persons would be “doxed” and then be exposed to danger. Phillips claimed the second analyst was an informant to the FBI. The Judge expressed disbelief at the need for this sort of discretion, but still, they would not reveal the name of the second analyst.

And, yes, it turned out that Eugene Yu’s arrest was indeed based on a tip from True the Vote. As the judge’s decision registered in the court room, the 12 member True the Vote contingent stared at the judge unbelieving at first, and then rose from their table. See Texas Tribune report here.