According to Donald Trump, many Mexican immigrants are rapists. He defended his comments later. See Business insider report. They also bring drugs and crime. But, some, he says, are good people. All I can say his experience with Mexican immigrants is far different than mine.

Surprisingly, Sen. Ted Cruz supported Mr. Trump in making his comments. Sen. Cruz focused on the need to tighten the nation’s borders. But, other candidates, including Rick Perry and Jeb Bush have criticized Mr. Trump for the evident racism of his comments.

President Obama announced that the administration will change regulations to allow overtime pay for managers who make up to $970 per week. The current level is $455 per week, which makes the overtime regulation largely meaningless. Indeed, this regulation has lost much of its effectiveness since 1975, when it applied to 65% of management. Now, under the current level, the overtime requirement only applies to 12% of managerial workers. See CNN news report. The increase to $970 per month means overtime will apply to 47% of managers.

For decades, this overtime provision has provided a scam for employers. They could often save money by re-naming a position as managerial, assign some minimal supervisory duties,  and thereby avoid having to pay overtime. The current salary level of $455 per week was set by Pres. Bush in 2004.

Non-compete agreements have been used in the market place for decades within certain sectors, such as physicians and some sales representatives. In the past year or so, I have heard from several workers who signed non-compete agreements. One poor young woman, in her 20’s, was sued after she changed jobs. She simply moved to a job in the same field but at a higher rate of pay. There was no agreement with her new employer to bring a “secret” customer list or to solicit customers from the old employer. She simply changed jobs because the new employer offered higher pay.

Yet, the old employer filed suit against the young lady. The suit accused the young woman of stealing customers and damaging its referral program. The poor young woman kept telling me how the lawsuit was inaccurate, that only one customer switched, and that there was no referral- rewards program at the old employer. She seemed intent on convincing me that her cause was just. I could only smile and tell her well, those are good defenses, but you still have been sued. I suggested she ask the new employer about hiring a lawyer for her. But, she explained, all they did was hire her. There was no agreement or plan that she bring customers with her. The new employer will surely not be interested in helping her with the lawsuit. The young lady is paid perhaps $10 per hour. She cannot afford to hire a lawyer.

The old employer will seek a temporary restraining order that could limit her ability to work. So, this is a huge issue for this young woman.

I wrote previously about non-compete agreements at a fast food sandwich place, Jimmy John’s, here. Sheesh. You know non-compete agreements are ubiquitous when they are signed by the youngest workers, with the least experience.

 

I tell my clients this can happen, but they usually just do not believe me. Good cases do sometimes lose at trial. Look at what happened in Wei v. Southwest Research Institute  No. 12-CV-00872 (W.D. Tex. 2015). Qiang Wei is from China. He speaks Chinese. It seems obvious that a Chinese person might speak Chinese, but his supervisor told him not to speak Chinese at work. He spoke Chinese at work only infrequently. Yet, his supervisor even warned Dr. Wei in his performance evaluation that he had been told to only speak English at work, unless in an “isolated” area. The court rightly denied summary judgment and noted these remarkable statements made by the supervisor. There are several cases holding that orders to speak only English without a good reason (e.g., safety) indicate discriminatory bias. To make his case even better, he complained about this discrimination and was fired soon after his complaints.

The parties did not settle, so the matter went to jury trial in March, 2015. The jury, after deliberating all day, eventually returned a mixed verdict, but one which ultimately went against the employee. The jury deliberated all day on a Friday. So, it would not surprise me if they simply grew tired of discussing and agreed on the easiest answer: no. Tell the plaintiff no and everyone can go home right away. But, if the jury finds there was discrimination, then that leads to another long discussion about what to award the plaintiff. The truth about jury dynamics is that often, members of the jury just want to get home to their everyday tasks.

So, yes, even when employee has direct evidence of discriminatory bias, a plaintiff can still lose.

It is a convoluted series of events in which the governor of Kansas has threatened the Kansas Supreme Court with no funding. It started when the Kansas Supreme Court found that the state’s funding of education was so inadequate as to violate the state Constitution. Gov.Brownback then sought and obtained a statute that would remove from the Kansas Supreme Court the power to select chief judges for the state district courts. The Kansas legislature passed that statute in 2014 giving the lower to select chief judges to the governor. The chief judges have authority over hiring, budgets and case assignments. Gov. Brownback has warned the state Supreme Court that if it rules the 2014 statute unconstitutional, then he will deny any funding to the state Supreme Court. That would be like Congress de-funding the U.S. Supreme Court because it issues a ruling with which Congress disagrees.

Amazing. It is not often that a politician goes after a state Supreme Court for differences in Constitutional interpretation. Can anyone say banana republic?

He calls himself the toughest sheriff in the country. Sheriff Joe Arpaio courts attention. He is the Sheriff of Maricopa County which includes Phoenix, Arizona. I remember way back when he required jail inmates to wear pink jump suits and live in tents in the outdoors. In 2011, he sent investigators to Hawaii to investigate Pres. Obama’s birth certificate and announced it was a forgery. He has survived two recall elections. His department has been sued several times – and lost regarding civil rights abuses by his deputies. See Salon news report. He has cost the county millions of dollars in lawsuits.

He was accused of instituting racial profiling of Hispanics. He was conducting sweeps of illegal immigrant.  In 2013, a federal judge found that his department did indeed engage in racial profiling. Judge Murray Snow ordered wide changes in his department. Now, in 2015 the Sheriff admits he has violated those orders. The Sheriff even hired a private detective to investigate the judge’s wife. It was alleged that the judge’s wife said her husband hated Sheriff Arpaio and wanted him out of office. The Sheriff’s office admitted they hired the PI to: 1) investigate the wife’s alleged statement, and 2) investigate whether the CIA had hacked into banks in Maricopa County, but more likely looking into whether the judge and Dept. of Justice were colluding against the Sheriff.

Now, Sheriff Arpaio has asked that the judge recuse himself from the Maricopa County Sheriff’s case. We see these crazy plot lines in movies about lawyers and law firms. But, once in a blue moon, those crazy things actually happen.  See NPR report.

Minor league baseball layers work long days. Yet, they are paid perhaps $5,000 for a five month season. Some are paid generous signing bonuses. Some receive no bonus. That means a great many baseball players are paid less than minimum wage. Wages below minimum wage violate the Fair Labo Standards Act. Three former minor league players filed suit against their team owners and Major League Baseball for the violations. See USA Today report. There are thousands of players in the minor league. Most will never make it to that big paycheck in the majors. Yes, even minor league baseball has to pay minimum wage.

The result is not so surprising but how the Supreme Court got there is a little surprising. In the case of EEOC v. Abercrombie, No. 14-86 (6/1/2015) the Court rejected the lower court decision and found the employer should have accommodated the applicant. The applicant, Samanatha Elauf, applied for a position. She was a practicing Muslim and wore a head scarf. The assistant manager gave her a high score, such that she would probably have been offered a position. But, the assistant manager checked to see if the scarf violated the no-cap policy. Eventually, the assistant manager was told that the applicant could not wear a head scarf.

Should Abercrombie have accommodated Ms. Elauf? Yes, said the Supreme Court. There was some issue about whether the employer knew Ms. Elauf’s request to wear a scarf was based on her faith. The employer argued on appeal that the employee must show “actual” knowledge of the need for accommodation. Id, p. 3 (slip opinion). Justice Scalia, writing for the majority, said no, the employee must simply show the need for an accommodation was a motivating factor in the decision to reject her application. Id.

The court rightly pointed out that Sec. 2003-2(a)(1), the disparate treatment section, does not require a showing of knowledge of the protected characteristic.  The statute does, however use the phrase “because of.” So, the employee must show the protected characteristic was a “motivating factor” in the decision.

Some statutes, such as the Americans with Disabilities Act, do require a showing of knowledge by the employer. An employer must accommodate “known” disabilities, according to the ADA. But, Title VII does not. Instead, Title VII prohibits certain motives.

The court adds in a footnote that the result might have been different if the employer did not at least suspect a religious practice was at issue. As the court explained, the motive issue might not be satisfied unless the employee can show at least a suspicion by the employer. But, that issue was not raised in this appeal, said the court. Id., at p. 6, ftnte 5.

Abercrombie also argued that the rule itself does not discriminate. The no-cap rule applies to all faiths. But, said Justice Scalia, that argument does not apply. Religious accommodation is by definition a requirement for special treatment for religious practices.

Justice Alito, in his concurrence, takes the majority to task for, in his view, disregarding the lack of evidence showing that the employer knew Ms. Elauf wore the scarf for a religious reasons. But, that approach ignores the reality that women wearing head scarves today generally do so because of religious reasons. A court should not ignore reality. Too, in my opinion, that argument simply makes it more evident that this concern is a factual argument, not appropriate for dispositive motions.

So, sure, a court finding that mere suspicion of a prohibited motive suffices to show discriminatory bias is a bit surprising. But, that is the decision that acknowledges the reality of the current workplace. See the decision here.

Well, the Texas Legislature pulled back from the edge of the precipice. The state legislature came very close to reducing Hazlewood Act benefits for Texas veterans and their children. I previously wrote about that effort to reduce benefits here and here. The Hazlewood Act allows veterans of the Iraq and Afghanistan wars to attend state colleges tuition free. If the veteran does not take advantage of the benefit, s/he can pass the benefit to his/her children. A couple of key members of the House realized that passing a bill that slashes that benefit the day before Memorial Day, when the state budget is enjoying such a large surplus, would generate very poor public relations for the state. I have to say, if we do not invest in our veterans and their families, what is worth some investment?

See Texas Tribune report.

The McDonald’s coffee cup case from New Mexico some 20 years ago is often cited by folks alleging lawsuit abuse. What those folks do not know is the coffee was kept at a very high temperature (above 160 degrees) despite many complaints, the lady suffered third degree burns on her inner thigh and the McDonald’s representative who testified at trial came across as arrogant. There are many sources for my information on this case. See, for example, MGR law. Now, we see what happens when another large corporation is accused of serving much too hot coffee that is then spilled in someone’s lap. But, this time, perhaps the company, Starbucks, testified better. The jury returned a jury verdict of zero. See ABA Bar Journal report. And, this time, the coffee was free coffee for a law enforcement officer.