The Equal Pay Act is a statute that requires that women be paid the same as men who perform the same work. The Equal Pay Act was passed in the 1970’s as an amendment to Title VII of the Civil Rights Act, which prohibits discrimination against minorities. Texas passed its version of Title VII,  Texas’ version is known as the Texas Commission on Human Rights Act. The TCHRA was also amended to require equal pay for equal work.  

The Equal Pay Act was amended by the Lillie Ledbetter Fair Pay Act to allow women to file suit for violations occurring more than two years prior to the lawsuit. Congress passed this amendment just a couple of years ago. But, when Congress amended the Equal Pay Act to allow women to sue for older violations, Texas did not also amend the TCHRA. The Texas legislature passed an amendment, but Gov. Perry vetoed that amendment.  See my post about that inexplicable veto here.  

The current Attorney General, Greg Abbott, has dodged questions about whether he would veto a similar bill if he were governor. Now, we see why. The salaries for Assistant Attorney Generals are not equal. They do not reflect equal pay for equal work. See San Antonio Express News report (account required). The report gets into the "weeds" of the matter. In an Equal Pay Act case, we must be sure the two jobs, one for a man and one for a woman, are truly comparable. The report notes that among the many levels of Assistant AG;s. in three categories, women have more experience as lawyers, yet, they make less than their male counter-parts.  The women were paid $647 less per year than their male counter-parts in three categories. 

Among the Assistant AG’s in seven other categories, men made $647 to $3,512 more on average than women. In just one category, women made more than their male counter-parts.  The AG’s office defends this pay disparity saying the salary levels are based on factors other than experience.  The education level, the management requirements, could all differ.  But, if that were true, the disparity should favor women on occasion, also.  If the disparity were due to having attended better schools or having more managers as men, women would or should not be disadvantaged.  Women lawyers attend good schools, too.  Women serve (or should serve) as managers, also.  

The real difference is that Assistant AG’s are hired individually.  The hiring manager has a pay range to work with. This study indicates that the hiring managers are offering higher pay to male lawyers than to female lawyers. Over time, that pay disparity remains, as both genders move up in the ranks.  Look at the pay for Director V.  The lone female Director V receives the lowest salary.  Did she attend the worst, least respected schools?  Does she supervise fewer Assistants than the other male Director V’s? It is possible, but doubtful. 

Jim Harrington, of the Civil Rights Law Project, says this study presents prima facie case of pay discrimination. Perhaps. But, as I have explained to many clients, statistics never provide strong evidence of discrimination. There are normally just too many variables.  But, this pay disparity may just have some legs.  

So, Jonathan Martin is traded to the San Fransisco Forty-Niners, a team where he wanted to play.  He is friends with the head coach of the Forty-Niners, Jim Harbaugh.  And, so ends the bullying fiasco at the Miami Dolphins. See CBS News report. Two of his main harassers, Richie Incognito and John Jerry have been declared free agents. So, they will be gone.  I wrote about this bullying episode here.  

And, so ends most bullying incidents, if they end at all. The workplace is turned upside down, key workers leave or are forced out. The offensive line coach was fired, as was the long-term head trainer.  And, it could have turned out much better if managers (i.e., coaches) had simply addressed the issue much sooner. I am repeatedly surprised at the lack of leadership displayed so often in major employers. In the Army, they taught us to address issues sooner than later.  If you deal with things sooner, the leader can turn an ugly situation into a "teaching point."  A negative can become a positive. Instead, the Dolphins have to re-create their entire offensive line.  

Tesoro Corporation has sustained a second acid spill at the same refinery.  I wrote about the first acid spill here.  It appears that the first acid spill was worse than Tesoro first suggested.  The Chemical Safety Board described the latest information about the first spill as "eye-opening."  See San Jose Mercury News report. The CSB has indicated that it has now regained access to the site after Tesoro had barred the CSB investigators.  Two workers suffered sulfuric acid burns in this latest spill.  Tesoro is headquartered here in San Antonio. 

Worker safety should be more than just a slogan. 

It is always hard for celebrities to accept the basic rules of litigation, such as the witness has limited control over a deposition. In a recent deposition, Justin Bieber violates almost every rule of how to successfully testify in a deposition. He objects on his own behalf to reasonable or halfway reasonable questions, he argues with the opposing lawyer, and he makes no attempt to convey the information he may need in his defense. Mr. Bieber is also simply "bratty" in these excerpts. See Justin Bieber’s deposition excerpts here. The lawsuit stems from an incident in which a member of the paparazzi was struck by one of Mr. Bieber’s bodyguards. 

One significant mistake occurred when Mr. Bieber was asked if he had ever disciplined one of  his bodyguards.  "What" he asked.  "Am I his parent?"  In a lawsuit accusing him of not controlling his bodyguards, that is surely a critical admission.  His admission reflects his lack of preparation by his lawyer.  No one explained to him the issues in his lawsuit.  My guess is he was too busy to bother with meeting with his lawyer prior to the deposition. 

And, one cardinal rule in all depositions is do not let the opposing counsel "push your buttons."  In one exchange, the opposing lawyer asks Mr. Bieber about Selena Gomez.  Mr. Bieber warns the lawyer not to ask that question, again.  The opposing lawyer promptly asks the same question again and again, as Mr. Bieber starts raising his voice, warning the lawyer again and again. You think Mr. Bieber indicated to the opposing counsel how to push his buttons?  I do.  And, that is why Mr. Bieber will eventually pay more, not less, to resolve this lawsuit. 

Last August, Gov. Rick Perry vetoed a statute that would have amended the state version of Title VII the way Congress amended Title VII to allow women to sue for discrimination in their pay. See my posts here. The state version of Title VII is known as the Texas Commission on Human Rights Act.  This is the state statute that prohibits discrimination based on gender. 

There is no good reason not to amend the TCHRA as Title VII was amended. Since its inception, the TCHRA has always tracked the wording of Title VII. State case law has long been based on federal case law regarding Title VII. We learned later that Gov. Perry was influenced by lobbyists when he vetoed the proposed statute.  

Now, the San Antonio Express News has referred to a lawsuit where such an amendment would have made a difference.  In a lawsuit by a professor against Prairie View A&M, the plaintiff sued on the basis of discrimination in her pay. She claimed she was paid less than male co-workers performing the same work. Her lawsuit, however, was based on the TCHRA. The Texas Supreme Court ruled against the professor. The decision by the Texas Supreme Court specifically said the court cannot legislate changes in the TCHRA.  If the state legislature wanted to amend the TCHRA, it should do so via the legislative branch, not the judicial branch. See San Antonio Express News report. 

Yes, indeed.  That is what the backers of the bill said when Gov. Perry vetoed their bill with no warning. 

It is a remarkable development for Texas.  Dan Patrick, candidate for Lieutenant Governor received 41% of the vote.  He will be in a run-off with the incumbent, David Dewhurst.  Mr. Dewhurst only garnered 28% of the vote.  It is remarkable because Dan Patrick has made numerous racist statements as part of this campaign and other campaigns.  In a prior campaign, he argued that the illegal immigrants from Mexico must be stopped because they bring diseases with them.  In the current campaign, he has unabashedly insisted that the "invasion" from Mexico be stopped.  

Mr. Patrick’s rhetoric is no different from anti-immigrant rhetoric at least since the 1850’s when the Know Nothing party targeted Irish Catholics.  That he has found some political success is not germane to this blog.  But, it is ironic that what helps him win elections would also serve as useful evidence against him in a discrimination lawsuit. 

I discussed yesterday the case in which an employee’s daughter disclosed the settlement amount and caused a settlement agreement proceeds to be returned to the employer.  See my post here.  Now, I see the Florida court of appeals decision here.  From the decision, it appears that the case was indeed dismissed.  The plaintiff had to give up his $80,000 because his daughter "blabbed" on Facebook.  The lawyer still received his $60,000 amount for attorney’s fees.  And, Mr. Snay did still receive the amount of $10,000 in lost wages.  So, yes, indeed, Patrick Snay lost both his $80,000 and his lawsuit. 

And under the terms of this rather onerous confidentiality clause, the appellate decision is probably correct.  I have never seen a confidentiality clause that would still result in a dismissal of the suit if the plaintiff disclosed the terms of the settlement.  

Some folks have asked why agree to a confidentiality clause, at all?  Most employees who settle a discrimination claim have been out of work for months or years.  They need money asap.  They do not fuss over things like confidentiality clauses.  Perhaps, now a few will pause when they realize how easily the terms of a settlement agreement can be publicized, these days.  Facebook has changed many things for many people. 

The plaintiff apparently had a brief time in which he could have backed out of the settlement agreement – after he knew his daughter had violated the agreement.  But, he chose to gamble on the court agreeing his speaking to his daughter was not a breach.  He gambled wrong. 

Not a good day for Mr. Snay or his daughter.

 

In every settlement of a discrimination claim, the employer always require a confidentiality clause.  In this clause, the employee agrees to reveal the terms of the settlement only to a select few persons, such as a spouse and an accountant.  The rationale offered by the employer is that otherwise, they will face numerous other lawsuits seeking the "easy pickin’s" of a discrimination lawsuit.  Well, whatever might happen, most of my clients have no interest in disclosing anything.  So, they usually agree to such clauses.  

But, in one recent age discrimination case, the result was not so happy.  Patrick Snay, former headmaster at Gulliver Preparatory School in Miami was forced out.  He sued for age discrimination and settled for $80,000.  The settlement included a confidentiality clause.  Mr. Snay and his wife told their daughter, Dana.  Dana was now attending Boston College, but she had many friends from her days at Gulliver.  She posted the good news on Facebook, "Mama and Papa Snay won the case against Gulliver."  "Gulliver is now officially paying for my vacation to Europe this summer.  SUCK IT."  Dana had 1200 FB friends.  See Yahoo news report. 

Ok.  That is a slight violation of the confidentiality clause.  Gulliver students saw the post.  The post made its way to Gulliver administrators who then told their lawyers.   The employer moved to declare the settlement void and the court agreed.  

First, it is doubtful the Snays were truly planning a European vacation.  If Mr. Snay was like most of my clients, he was unemployed for a year or two before finding work.  Most of that settlement would pay down credit card bills and pay off loans from friends and family.  

Second, sure this was unfortunate for Patrick Snay.  But, his lawsuit is now alive, again – assuming he has no statute of limitations issues.  He may eventually find more money from a jury.  Mr. Snay says he had to tell his daughter something.  She suffered psychological scars when he was forced out.  

Many plaintiffs do not read the entire settlement agreement.  It is a legal document, stocked with plenty of legalese that goes on for ten, fifteen pages or more.  It is not light reading.  If Mr. Snay did not caution his daughter with the confidential nature of the settlement terms, then he should have.  

But, now he has his lawsuit back.  And, I will wager that there will not be a rash of lawsuits against Gulliver Prep School seeking those "easy" settlements for age discrimination.  

Way back when, I worked in a warehouse.  Safety was not a major concern, since we had never had an accent to my knowledge.  But, safety was emphasized.  I was always gratified when I would hear management remind us to be safe and not to take chances climbing shelving or tossing boxes.  And, before the warehouse job, I worked one summer as a flagman for a road crew.  For a few days, I had to wave my flag on the big bridge over Corpus Christi Bay, with several careening cars heading right toward me.  Several times, i gave serious consideration to jumping off the bridge to avoid those crazy drivers.  So, I have always appreciated workplace safety.

So, when I see Tesoro refusing to allow federal investigators on their premises to investigate an acid leak, I get suspicious.  See San Antonio Express News report.  And, since seven workers were killed at another Tesoro refinery in 2010, there should be some concern about safety at Tesoro facilities. 

Maybe, there is a good reason to block an investigation regarding worker safety.  I know many employers do not trust any government agency, much less a federal agency.  But, surely, if workplace safety is paramount, Tesoro could find a way to cooperate.  

According to a recent Washington Post news report, KBR and Halliburton required its contract employees in Iraq and Afghanistan to not report fraud or waste.   They required contract employees to sign confidentiality agreements.  To any veteran of the two wars, that requirement is offensive.  We received many of our support services from KBR (owned by Halliburton at the time).  As the report mentions, such confidentiality agreements violate the Federal False Claims Act, which require persons to report allegation of fraud, waste and abuse.  See Washington Post report. 

KBR responds that the confidentiality agreements are not intended to cover up waste, but to ensure the integrity of the internal review process.  Many false claims are filed and KBR has a system in place to ensure only credible claims are forwarded to the authorities.  …  I am so sure.  Those of us who had to endure slipshod wiring, showers that could electrocute the users, those few little electrical fires, are not so sure.  Halliburton formerly owned KBR during the two wars.  

I always had my doubts about contracting out essential Army services, such as wiring, and washing clothes, serving food, etc.  To this day, I am amazed that the Army accepted a major change to an ancient practice: no pot of coffee available in the mess hall (at least during the winter months) anytime of the day.  KBR dining facilities did not honor this ancient practice.  Is nothing sacred?

The profit motive can sometimes overtake quality, safe services.  Yes, there was at least one case of a soldier dying from electrocution during his shower.  In my own unit in Iraq, our First Sergeant had to trade something, I forget what, to get a generator that worked.  Without a working generator, we would not have had any electricity.  The False Claims Act was passed in response to rampant fraud by contractors during the Civil War.  Apparently, we have learned little since then regarding how the profit motive can affect the quality of services for our folks in uniform.