As expected claims for unemployment benefits in Texas have skyrocketed. The Texas Workforce Commission website crashed on Thursday due to the heavy usage. The website usually sees 10,000 visitors per day. That site had 40,000 visits on Tuesday of last week and 50,000 on Wednesday. The Thursday crash was brief. Unemployment claims as of Tuesday, March 17, numbered 19,200, almost twice that of Monday. The best approach is to just keep trying until you can file your claim. Do not forget the requirement to call in periodically to report on your job search.

See Rivard Report here.

As we used to say in Iraq, Be Safe.

The President signed into law the Families First Coronavirus Response Act yesterday. See the new Act here. It amends the Family Medical Leave Act. The FFCRA applies to employers with fewer than 500 employees. This provision may cause confusion, since the FMLA itself applies to employers with more than 50 employees.

The FFCRA covers part-time and full-time employees who have been on the payroll for 30 or more calendar days. Covered employees may take up to 12 weeks of FMLA leave due to a “public health emergency.”  The qualifying need is defined as the need to care for a minor child if the school has been closed and if the employee cannot work from home.

The first ten days of the leave are unpaid, but the worker can use any sick leave that is available. Then, the worker will be paid up to 2/3 of the worker’s regular rate, adjusting for the number of hours the employee normally works – for up to ten weeks. Employers with less than 25 employees are exempt from damages in a lawsuit, if the position no longer exists due a public health emergency. The law provides for tax credits for any employers who provide paid emergency leave. This amendment to the FMLA expires Dec. 31, 2020. See Sec. 3101.

The FFCRA also provides that the federal government will fund 26 weeks of additional unemployment benefits for states if the unemployment rate rises 10 percentage points over the prior year in that state. See Sec. 4101.

Under a separate section, the statute also requires an employer to provide ten days of paid sick leave for full-time employees and the equivalent number of hours for a part-time worker. See Sec. 5101.

There will be many layoffs soon due to this coronavirus outbreak. Unfortunately, many of those laid off will be hourly workers. Yes, in Texas, you will generally qualify for unemployment benefits if you lose your job through no fault of yours. The Texas Workforce Commission requires that a person applying for benefits have worked at the same place for four of the last five yearly quarters. See TWC website here. That means you must have worked at the same place for the past 12-15 months. If your hours are reduced due to the coronavirus outbreak, then you would qualify for benefits. See the TWC website. AARP also has a good website explaining the normal problems applicants run into during the process. See that AARP site here.

Keep in mind the requirement to call into TWC weekly to report your job search. TWC will deny benefits to persons who have not applied for jobs during a given week. See my previous blog post about applying for benefits here.

What rights do you have regarding the coronavirus? Chris McKinney, a top notch lawyer,  has drafted some very good FAQ’s regarding this new pandemic. See his post here As a serious illness, most employees would be covered by the Family Medical Leave Act if they contract the virus. The more difficult question is must an employer pay you if he sends you home for self-quarantine? That is, if a worker comes into contact with a person who does have the coronavirus, the employer may tell you to stay home for 14 days before you return to work. If you have used all your sick leave, or you have no sick leave, must the employer pay you for staying home? I know of no Texas statute or caselaw that would require an employer to pay such a worker who is sent home simply to self-quarantine.

Its a remarkable thing for a sitting U.S. district judge to say about the Attorney General of the United States: Comparing the public statements by AG Barr about the Mueller report, at a time when the public did not have access to the report, to the actual redacted Mueller report, portions of which conflict with AG Barr’ public comments, the court “seriously questions whether Attorney General Barr made a calculated attempt to influence public discourse  about the Mueller report in favor of President Trump despite certain findings in the redacted version of the Mueller report to the contrary.” See CNN news report and copy of the Judge’s order here. The lawsuit was filed by Buzzfeed and a public interest group seeking an unreacted copy of the Mueller report. The court noted what appears to be attempts by AG Barr to mis-lead the public about the contents of the Mueller report. It finds several inconsistencies between the report and AG Barr’s public comments.

The court finds that due to these inconsistencies, the court cannot accept at face value DOJ’s representations about what the unredacted Mueller report states. The court then grants the plaintiffs motion asking the court to review the report in camera and it denies DOJ’s motion for summary judgment. That means the court will review the unredacted Mueller report itself to determine whether it contains classified information.

And a siting federal judge finds the word of the Attorney General to be unreliable. Judge Reggie Walton, appointed by Pres. Bush, issued the order. This really is quite the slam on AG Barr.

What happens when an employee is subjected to harsh treatment, but that harsh treatment does not include termination, demotion or loss of pay? In Welsh v. Fort Bend ISD, 941 F.3d 818 (5th Cir. 2019), the court addressed what is an adverse personnel action. Ms. Welsh was a teacher at Fort Bend ISD. Ms. Welsh was required to undergo some training and was placed on a Performance Improvement Plan (PIP). She successfully completed the PIP. She later claimed the PIP was discriminatory.

The Fifth Circuit pointed out that a written reprimand can constitute adverse employment action, but mere criticism cannot. While other cases have held the opposite, that written reprimands cannot constitute an adverse employment action. An employment action that does not affect job duties, compensation, or benefits cannot constitute adverse personnel action. But, the court found the PIP was not a reprimand. It was an opportunity for growth. (Yes, the court really said that). The Plaintiff argued that having a PIP in her file will cause her to lose promotion opportunities later. It will act as a bar. But, she could point to no evidence of that. So, the Fifth Circuit affirmed the grant of summary judgment against her. See the decision here.

This reminds us that we always need evidence of contentions that to us seem obvious, but to a judge not so much.

Pres. Trump has attacked judges since 2016. His broadside against a sitting U.S. District Judge was remarkable, saying Judge Amy Berman Jackson was biased in some unspecified way against Roger Stone. He also attacked the foreperson of the Stone trial jury. He accused Tomeka Hart of being biased because she had previously run as a Democrat. Even though, Ms. Hart’s background was known to all before she was selected for jury duty.

A second juror has come to Ms. Hart’s defense. Seth Cousins sat on that jury. He says Ms. Hart was one of the last members to vote for conviction. He says Ms. Hart was one of the persons insisting that the rights of Defendants be respected. Mr. Cousins points out that Pres. Trump is attacking all members of the jury when he attacks Ms. Hart. The members of the jury set aside their personal lives for weeks, made arrangements with day care, just so they could perform their civic duty. And, then a public official attacks them for it. Indeed.

See The Hill report here.

What happens in mediations stays in mediations – or should. Dennis Duffy, a lawyer who has practiced in San Antonio, El Paso and now in Houston, attended a mediation in Houston in 2019. According to Above the Law blog, he tried a new tactic at the mediation. The plaintiff’s lawyer was Alfonso Kennard. Mr. Duffy represented the defendant. Mr. Duffy, shook his “booty” in front of Mr. Kennard and mocked Mr. Kennard’s ponytail. Mr. Duffy suggested that he, Mr. Kennard, wanted to have sex with Mr. Duffy, because he has a ponytail.

In response, Mr. Kennard submitted a motion seeking sanctions and the disqualification of Mr. Duffy. The two lawyers oppose each other in a discrimination lawsuit against Chevron Phillips Chemical Co., LP. Mr. Duffy has worked at large law firms most of his career. He currently is a partner at Baker Hostetler in Houston. See Above the Law post here. According to the motion for sanctions and for disqualification, Mr. Duffy said to Mr. Kennard: “Do you want to f— me? You have a ponytail haircut. I figured you want to f— me…..” See ABA Bar Journal report. As Mr. Kennard mentions in his motion, litigation is tough enough when the lawyers work together. Litigation becomes almost impossible when the two opposing lawyers are not working together. See White v. Chevron Phillips, No. 19-CV-00187 (S.D. Tex.).

This is the same Dennis Duffy who once said at a CLE that he is an unreconstructed Rambo lawyer. That  description appears to be accurate.

As it turns out, Mr. Duffy and his law firm were replaced as counsel for Chevron the week after the motion was filed. The new law firm, Norton Rose Fulbright, apologized for “the encounter” at the mediation, while denying that the “encounter” was described accurately by Mr. Kennard.

 

Forced arbitration has become more and more prevalent. In the work place, many employers provide an orientation which occurs online. So, forced arbitration often requires the new employee to agree (or not) to forced arbitration online. What happens if the employee does not sign the forced arbitration agreement? And, what happens if an employee does not recall if s/he signed the forced arbitration agreement? In Aerotek, Inc. v. Boyd, the district court denied a motion to compel arbitration. On appeal, the Dallas court of appeals found that was not error. The four employees denied having seen or consented to any forced arbitration agreement. The employer submitted forced arbitration agreements with claimed digital signatures for each of the four employees. But, the four plaintiffs insisted they never saw the agreement. The employer’s IT experts could not testify that it was impossible to complete the in “onboarding” process without signing the forced arbitration agreement. According to the IT experts, it was not impossible for an employee to not sign the forced arbitration agreements.

The Dallas court of appeals noted the decision in Kmart Stores of Texas v. Ramirez, 510 S.W.3d 559, 565 (Tex.App. El Paso 2016), which found that an electronic signature does not conclusive show agreement, especially when confronted by sworn denials. And, Aerotek admitted that a third party vendor created the onboarding process and it did not produce a witness from that third party vendor.

See the decision in Aerotek, Inc. v. Boyd, No. 05-18-00579 (Tex.App. Dallas 8/27/2019), here.

 

The courts have struggled with the wording in Title VII for a couple of decades. Title VII clearly prohibits discrimination based on sex. Does that mean Title VII prohibits discrimination based on sex orientation? If an employer terminate someone because he is gay, how is that not discrimination based on sex?

The challenge is that the legislative history expressly says Congress did not intend for Title VII to apply to homosexual persons. But, sex is sex, right? I wrote about this challenge here, when the Fifth Circuit recently declined to stray from the decision in Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998). Oncale allows a plaintiff to proceed with a claim based on gender stereotyping. But, gender stereotyping will not apply to cases of explicit homosexual discrimination. Last Fall, the U.S. Supreme Court accepted two cases addressing whether “sex” really means sex, Bostock v. Clayton County and Altitude Express v. Zarda. In both cases, the employers clearly fired two employees due to their sexual orientation. See SCOTUS blog for more information here.

Perhaps, the best argument the employers can make is that the plaintiff’s case is best addressed by Congress. But, until Congress addresses it, the “sex means sex” argument will continue to persist.