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.

I am a member of Texas Employment Lawyers Association. We represent people in employment lawsuits. TELA just posted excellent advice on worker’s rights during the coronavirus outbreak. Go to our website here for advice about unemployment benefits, workplace accommodations and being required to work from home.

As we used to say in Iraq, Be Safe.

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.