The Texas Attorney General, Ken Paxton, has been sued by the Securities Exchange Commission for securities fraud. See San Antonio Express News report. That is a big deal simply because this is a civil matter, not criminal. The SEC only has to show by a preponderance of the evidence that General Paxton broke the law. In criminal court, the standard is beyond a reasonable doubt. We can think of that standard requiring 99% probability that the accused person is guilty. Preponderance is more like 50.1%.

The SEC cannot ask for imprisonment, but they will ask for hefty fines. According to the news report, Mr. Paxton was paid 100,000 shares in an energy company. Another person involved in the scenario, Caleb White, plead guilty and had to return $66,000 and 20,000 shares of the same company, Servergy. One lawyer who follows the SEC says the SEC generally files only when it is sure of its evidence.

One can expect that the AG is not so certain of his evidence.

Arbitration in employment cases is still new. It is also private. So, researchers have not had access to arbitration decisions or awards. But, a statute passed in California requires the arbitrators to make public their decisions. One Cornell researcher obtained those public awards and found some remarkable trends. The largest provider of arbitration services is the American Arbitration Association. AAA is also the only provider that provides protocols designed to protect employees from the worst sort of arbitration abuses. The report includes some 3900  AAA arbitration awards or decisions over a four year time period. I previously wrote about this study here. But, I want to mention some additional details.

Alexander Colvin found a “repeat player” effect. That is, repeat participants, employers with more than one claim filed against them, receive better results. Repeat players would also include repeat law firms. The unique aspect of employment arbitration is that the employee will almost always have only one arbitration in his/her life. Whereas, the employer may have multiple arbitration matters. The fear is that some arbitrators will curry favor to some degree with the employer in the hopes of securing additional arbitral matters. Most arbitrators are lawyers who have financial incentive to do more, not less, arbitrations. The more arbitrations they do, the more they get paid. Mr. Colvin found that in the “one-shot” employer situation, the employee would win 31.6% of the time. While, in the repeat employer situation, the employee win rate drops to 16.9% of the time. Regarding damages, when the employee did win in a one-shot employer situation, the mean damage award was $40,546. But, in the repeat employer situation, the mean damage award was only $16,134. So, workers have a better chance with the one-time employer, but even then their success rate is lower than in a traditional court.

Out of the 3900 cases, repeat employers included 62% of filings. There might have been more, but the four year window necessarily would have excluded some prior filings.

Compare the above win rates to other forums. Overall, the employee “wins” 21.4% in AAA arbitrations. In California federal court, the employee wins 36.4% of the time. In California state court, the employee wins 59% of the time. Yet, in securities arbitration, which has a much longer history than general employment arbitration, securities industry employees win arbitral hearings some 40-50%. Mr. Colvin does not attempt to explain why employment arbitration employees fare much worse than security dealers. He invites future researchers to answer that question.

Looking at a slightly different problem, what happens when the repeat employer uses the same arbitrator? Does that even make a difference? Mr. Colvin found some 15.9% of the cases included what he describes as “repeat pairings” – that is, the same employer with the same arbitrator. When cases did not involve a repeat pairing, the employee win rate was 18.6%. But, when you had a repeat pairing, the same arbitrator with the same employer, then the employee win rate slid down to 12%. The average damage award for non-repeat pairings was $27,039. But, when the same employer was paired with the same arbitrator, the average damage award was $7,451. So, when the employer has actually worked with the same arbitrator in the past, and the employer is not simply another employer who has done arbitration in the past, the success rate of the employee drops to 12%.

What is a “win”? Mr. Colvin defines a win as any positive finding in favor of the employee, no matter how small the award might be. He seeks the broadest measure of arbitral success as possible. Mr. Colvin suggests in his article that arbitration claims would have lower value than traditional court litigation claims. He is surely correct about that. See the article, An Empirical Study of Employment Arbitration: Case Outcome and Process, here.

Mr. Colvin noted significant differences in AAA arbitrations from individual arbitration agreements. AAA arbitrations are different because AAA requires any employer promulgated arbitration agreement to follow certain procedures. Those procedures ensure the employee pays only a modest fee for the the service. But, AAA arbitration matters that develop out of individual employment agreements see better results for the employee. But, as the researcher notes, individuals with his/her own arbitration agreement typically are higher ranking, are paid more and have much greater resources that the employer promulgated arbitration agreements. According to the data, some 82% of arbitration claimants were paid less than $100,000. So, the AAA arbitration results studied by Mr. Colvin represent by far the more typical experience for American workers.

This study is a stark reminder that employment arbitration is designed for employer success, not employee. The employer who has multiple claims will always come out ahead in this system. Civil-rights receive less protection in the arbitration context.

So, the system in which union dues are collected from all employees remains in place. By a tie, 4-4 vote, the U.S. Supreme Court fails to reach a consensus opinion. That means the lower court’s opinions stand. In this case, that means unions win because most lower courts upheld the long-standing custom of deducting union dues even from those persons who are not members. See CBS news report. These fees from non-members may not be used for political activity.

The system of collecting dues from non-members exists in the 23 states and the District of Columbia which allow public sector unions. The theory is that non-members would get a “free ride” if they paid nothing. The non-members would get the benefit of a collective bargaining agreement but pay nothing for it.

I belonged to a union a few years ago. We did sometimes refer to the non-members in a semi-friendly way as “free-loaders.” They were getting the benefit of concessions won by the union without paying anything to the union. Unfortunately for some, if Justice Scalia were still alive, he surely would have voted to abolish the fees. Indeed, he surely expressed his opposition to these fees before his death. But, under the internal rules of the U.S. Supreme Court, his opinion does not count if he is not around when the final decision is issued.

This result also indicates what happens when a seat on the Supreme Court remains unfilled. The business of the country just does not get done. A tremendous amount of work by many people goes into one appeal to the Supreme Court. All that work is for naught when the final tally is 4-4.

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There are a lot of myths out there about employment law. From time to time, I talk about a few of those myths.

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. I have found no authority in Texas law saying that 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. 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 encourage work places to provide rest breaks, but such breaks are not required. See 29 CFR Sec. 758.18.

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 became much more enforceable with the decision in Marsh USA Inc. v. Cook, 354 S.W.3d 764 (Tex. 2010). I previously wrote about that decision here.

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. I discussed those protections here. But, as far as discussing politics, football or cooking, there is no right to discuss whatever a worker wishes in the private workplace.

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 from asking employees to violate criminal statutes. This sort of lawsuit is known as a Sabine Pilot type action. I discussed Sabine Pilot actions here. These Sabine Pilot actions only apply to violations of law that involve criminal punishment.

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 wrritten 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. I wrote about employee manuals here.

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.

We see a lot of discovery issues regarding electronic data, these days. For example, many employers use cameras inside the place of employment. What if those cameras record alleged conduct that leads to termination? The court in EEOC v. Chipotle Mexican Grill, 98 F.Supp.3d 198, 2015 US LEXIS 42187 (D. Mass. 3/30/2015) addressed such a question. Chipotle had interior security cameras which apparently witnessed the conduct leading up to the termination. The manager received a complaint about one of the workers. The management team reviewed the video in question. The manager was not certain the video included the correct employee, but he believed it did. He saw what he believed was corroboration of the complaint and terminated the employee based on that video recording. The employer erased the video automatically within 30, 60 or 90 days of the incidents in question. So, the EEOC filed a motion for spoliation sanctions. The agency argued that the employer was required to maintain records regarding the employee after it received the EEOC charge.

But, the district court disagreed. It noted that it was not certain that the employer received notice of the EEOC charge before the video was recorded over. That is, it was not clear that Chipotle was on notice to retain the records regarding the employee, yet. So, there was no showing that the employer had acted negligently or intentionally. Too, 29 C.F.R. §1602.14 imposes a duty on employers to maintain records regarding an employee once it is aware an EEOC charge is pending. But, said the court, it would stretch the meaning of that regulation too much to say it included video recordings. And, maintaining video recordings would impose too great a burden on employers. See decision here.

Sometimes, the San Antonio Express-News just does not get the story straight. In a story, entitled “Franchisees Fear a Chain of Ruin,” the report suggests the NLRB has made drastic changes to the law regarding joint employers. See San Antonio Express-News report. The NLRB has done nothing like that. See my prior post about that recent decision  in the Browning-Ferris Industries case here and here.

As I explained previously, the Browning-Ferris decision simply holds that in those unusual cases in which the franchisor takes a significant part in the running of the franchisee, then yes, they could be viewed as joint employers. The evidence must indicate an unusual relationship in which the franchisor takes steps to control the employees of the franchisee. That should not happen often. The sky has not fallen.

The sky could fall, yes. The NLRB could find in the pending McDonald’s case that the franchisor is a joint employer even if there is no evidence that Big McDonald’s gets involved in employment decisions by the franchisees. But, that is not likely.

The real problem with the Express-News report is it lacks balance. It quotes two defense lawyers, both from the law firm, Ogletree Deakins. The report cites to no plaintiff or employee oriented lawyers. It does not cite to or refer to any NLRB lawyers. The news outlet apparently did not seek an adverse opinion in an area of law that is generally rather adverse.

Like a story on the Spurs-Warriors game, if the reporter does not talk to any of the players on the Golden State Warriors, the story would just not be complete…..

So, documents have been released about Bowe Begddahl. Those documents shed light on the troubled young man. He tried to join the French Foreign Legion. He grew up in a regimented home. He was home schooled. He had limited contact with girls until he was 16 or 17. His father, not a veteran, but still enamored of the military way of life, ran the home like a military unit. It was, as Mr. Begddahl says, not a good place to be. They lived in a rural area of Idaho.

So, recognizing his social limitations, he sought to confront what he saw as a weakness. He went to Paris, not speaking a word of French, and tried to join the French Foreign Legion. They rejected him because of his eyes. He found that to be a relief. Soon afterward, he joined the Coast Guard. But, he had a breakdown, a panic attack during boot camp. When he joined the Coast Guard, he was not talking with his parents. He told no one he would join. He felt that joining was his way of “pulling his own weight.” He felt like the information he received from his family was that he could not succeed. So, failing with the Coast Guard, he wanted some way to show he could succeed.

His time in the Army was dismaying, he told the Army after his release from captivity. At the National Training Center, which is a premier Army training event, was disappointing. He spent most of his time policing cigarette butts and sorting through expended brass.

So, if that disappointed him, it is safe to say he expected much more than was realistic. The Army cannot function without a lot of time devoted to mundane, boring tasks. And, as a young private, that is largely what you do. Sure, the young soldier will get his chance for glory. But, not without first picking up a lot of cigarette butts.

The newly released papers also indicate medical authorities said SGT Bergdahl is competent to stand trial. But, he suffers from a schizotypal personality disorder, which causes persons to suffer in their thoughts and social relationships. See San Antonio Express News report.

SGT Bergdahl joined the Army at the peak of the Iraq and Afghanistan wars. He joined at a time when the Army struggled to meet its recruiting goals. We get a peek in this instance of the sort of soldiers the all volunteer force was accepting. He was a troubled young man who probably was not ready for the demands of a combat ready force. It seems to me that the troubles with SGT Bergdahl’s conduct lie with the Army itself as much with that problematic young soldier.

McDonald’s hamburger chain is facing the first test of a new approach to franchise workers. The new approach started with a NLRB decision last Summer that found in certain cases, the parent franchisor could be responsible for employment decisions made by the franchisee. See my comment about that decision here.

The McDonald’s case started when some McDonald’s workers walked off the job to rally for higher wages. The NLRB received many complaints after workers suffered reprisal for their labor activity. The NLRB will hold hearings about McDonald’s workers in New York City and later in Chicago and Los Angeles. The NLRB has not explained why it believes this is a joint employer situation. But, lawyers representing individual claimants point to the larger corporation monitoring and deciding working conditions of workers. See Chicago Tribune report.

If that is all the evidence the NLRB has, that may not be enough. In the BFI Industries case that established this new standard, there was more evidence of control by the larger corporation. That case concerned a supposed independent contractor, Leadpoint, and a client employer. BFI was the larger, client employer. In that case, BFI had an agreement with Leadpoint that in effect allowed BFI to “codetermine” employment decisions. Leadpoint conducted its operations on BFI property surrounded by BFI personnel. BFI set the conditions of work that determined which Leadpoint workers would stay and who would be fired. Under the agreement, BFI retained authority to “discontinue” any of Leadpoint’s employees. There were two instances in which BFI did indeed discontinue two Leadpoint workers. See my prior post about that decision.

Joint employer under the BFI decision does not mean franchisees and franchisors are automatically joint employers. First, there must e evidence that the parent or larger corporation actually exercises some control over employees of the franchisee. As they teach us in first year of law school, its all about the evidence.

One recurring issue in employment cases is the breadth of discovery that is allowable. Many employers want to seek the records of the plaintiff’s former jobs. That means the employer can possibly rummage around the employee’s former jobs and see if there is any dirt that will help the employer. Unfortunately, some plaintiff attorneys do not resist those subpoenas. But, it is important to do so. No one should give up total privacy simply because s/he filed a civil rights lawsuit.

In Henry v. Morgan’s Hotel Group, No. 15-CV-1789 (S.D. N.Y. 1/25/2016), the federal Judge agreed that an employer should not have unfettered access to a plaintiff’s entire work history. The employer, as many employers do, submitted overboard requests when it asked for records from three former employers. Morgan’s Hotel Group sought all records related to Phillip Henry, the plaintiff. The court felt that simply requesting “all” records was itself a basis to quash the subpoenas.

[That makes sense. “All” records would include financial and medical related records. How could those sorts of records possibly be relevant to a lawsuit against a new employer alleging discrimination?]

The subpoenas were based on the old standard for discovery, whether the records are reasonably calculated to lead to admissible evidence. The new standard focuses on documents that are relevant in proportion to the importance of the issues, the resources of the parties, and the burden or expense of the discovery. The employer justified its request on the grounds that Mr. Henry claimed to be an “exceptional” waiter based in part on his experience at these three prior restaurants. It wanted to test his claim and see if it was true. But, as the court noted, whether he was exceptional or not, that would have no bearing on any discrimination at his job where he was fired. And, the employer offered no suspicion or basis for its belief that Mr. Henry had exaggerated or lied about his qualifications. So, found the court, the discovery was not proportional to the asserteded need.

The employer also failed to send advance notice to the plaintiff’s lawyer before sending the subpoenas to former employers. That lack of notice violated federal rules. At least one employer had already produced some records before the plaintiff l lawyer could submit her motion to quash.

To make things worse, the subpoenas were served on the former employers and the plaintiff’s lawyer on Christmas Eve, a “sharp” tactic noted by the court. See decision here.

Its a small thing really, but it can be so helpful. The EEOC has adopted a new national policy that it will allow persons who file an EEOC Charge to obtain a copy of the employer’s explanation. The employer is required by federal statute to provide a response to the employee’s charge of discrimination. The charge itself is just one page. The employer’s response, known as a “Position Statement,” can be quite lengthy with many pages of attachments. For decades, the EEOC has contacted the complainant and reviewed the employer’s response with the complainant. The EEOC would then ask for the employee’s response. Here in San Antonio, the EEOC would summarize the Position Statement in a letter and invite a response from the employee. But, in some regions of the country, the EEOC already provides a copy of the Position Statement itself and then invites the employee’s response. This change in national policy makes the process more uniform.

As I have mentioned before, the EEOC rarely conducts an actual investigation. That is, it does not typically interview possible witnesses or review documents. All it does is compare the employee’s charge to the Position Statement. But, when employers “fudge” the facts a bit, that early statement can include some valuable pieces of evidence. As the employer’s story evolves over time, the Position Statement is the first “cut” at what its story is. if the story changes later, that Position Statement is critical to show that the employer’s story has changed.

So, it is helpful to get a copy of the Position Statement sooner than later. But, in the end, this new policy changes little. The EEOC will still not conduct an actual investigation. So, the outcome of the EEOC investigation will not change. Yet, some defense lawyers see this change as  “one-sided” in allowing the employee to see the employer’s story – while supposedly not allowing the employer to see the employee’s story. See Holland and Hart blog post here for example. But, the employer does receive a copy of the charge. The charge is just one page, but it does indeed provide the employee’s story to the employer.

I cannot help but notice Holland and Hart’s advice that if the employer maintains good records and good policies, then this change will not affect them. Sure, but the defense lawyer does not mention that only in rare cases does the EEOC conduct an actual investigation. And, if there is no actual investigation, then there will not be a finding of discrimination. The EEOC does have teeth, but those teeth are so rarely used. But, I suppose if employers did not feel some sense of urgency, then they would not hire those defense lawyers…..