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The recent government shutdown can have a profound impact on federal workers. Research by management experts shows that the threat of imminent uncertainty, such as furlough or layoff, can be just as stressful as the furlough or layoff itself. A management professor at West Chester University, Anthony Wheeler, says psychologically, they are the same, the threat to one’s sense of security is the same. The more often the worker hears the threat, such as Presidential tweets, the greater the stress.

The studies looked at furloughs of state employees and layoffs of nurses before and after  hospital mergers. The studies found that high performers who had options would leave for other jobs elsewhere. And, they tend to leave quickly.

Another professor, Lisa Baranik at the University of Albany in New York, studied the 13 day shutdown in 2013. For up to five weeks after the shutdown ends, the effects lingered among the workers. Furloughs, she explained, are about much more than financial considerations. For most workers, the job is also a source of social interaction. They can discuss families and positive accomplishments at work. When they lose those bonds, they lose much of the positive effects of the job. Those positive effects take time to re-build.

Some folks suggest that the effect on federal workers is different, because they tend to have more of a sense of mission. They serve a cause, something larger than themselves. But, said one expert, this most recent shutdown and the threat of a second shutdown soon afterward makes this experience much more like layoffs in the private sector. See the Feb. 12, 201 edition of the San Antonio Express News for more information about these studies.

Well, the Tarrant County (Ft. Worth) Republican party voted to keep Dr. Shafi in his position as Vice-Chairman of the party. By a vote of 139-49, the precinct chairpersons voted to keep the doctor in his position. I previously wrote about this vote here. A lady named Dorrie O’Brien and others had pushed the idea that because he was Moslem, he had some connection to jihadists. That notion would be humorous if it was not so serious. See CNN news report here.

Dr. Shahid Shafi is finding much support among the Republican party in his quest to remain vice-chairman of the Tarrant County Republican Party. Gov. Greg Abbott and Sen. Ted Cruz have both issue statements supporting the doctor. The vote to remove Dr. Shafi is set for next week. I previously rote about this discriminatory attempt to remove the doctor here. See CNN report about this attempted removal here.

That really is the silliest thing, thinking just because he is Moslem that he must be a jihadist. I fought jihadists in Iraq. Trust me, Dr. Shafi is not a jihadi person.

I used to get referrals from the San Antonio Bar Association. These referrals included many clients who had never spoken to a lawyer anywhere. Many of them would call complaining basically about unfair treatment. I still get calls like that, sometimes. They might say, “my employer fired me because they say I did not call in, but I did call in sick.” I have to explain to such potential clients that in Texas, an employer can fire you for the wrong reason or even for a stupid reason.

We have what is known as “at-will” employment. An employer can fire you for any reason (other than various types of discrimination). Just as the employee can quit for any reason. So, yes, even when the employer is wrong, even when you did call in sick and the employer just flat messed up and did not record your call, they can still fire you. I wish that was not true. I wish our state laws were different, that they required some sort of “just cause” for termination. But, most states do not require just cause for a termination. Only some 10 states require a good reason for a termination. In the rest of the states, such as Texas, an employer can fire you for the wrong reason.

In a Harris Poll survey a few years ago, researchers found that 20% of hiring managers have asked unlawful questions in interviews. They asked these unlawful questions not realizing at the time that such questions could lead to legal liability. CareerBuilder commissioned the survey. A CareerBuilder representative said an interviewee who is asked these sorts of questions could decline to answer. If the hiring manager insisted on an answer, then that insistence suggests this might not be a good place to work. Those questions include:

  • What is your political affiliation?
  • What is your race, color, or ethnicity?
  • How old are you?
  • Are you disabled?
  • Are you married?
  • Do you have children or plan to?
  • Are you in debt?
  • Do you social drink or smoke?

Some of these questions are clearly unlawful. But, I do not see a legal problem in asking someone if s/he smokes or drinks. And, just to remind my readers, these questions only become an issue if some adverse personnel actions develops later for which there is no good, objective rationale. The best defense to a lawsuit or complaint remains simple: document problems and base that documentation on objective reasons.

It is safe to say no one ethnic or religious group has a monopoly on patriotism. Yet, some Republican precinct chairs in Tarrant County believe just the opposite. Some Tarrant County Republican precinct chairs are trying to remove Shahid Shafi as Vice Chairman of the GOP party in Tarrant County. The chairman, Darl Easton, appointed Mr. Shafid to the post last Summer. Some Republicans have been trying since August to remove Mr. Shafid. Said one of the leaders, Dorrie O’Brien, “We’re patriots who don’t allow jihadists to play in the fields of the Lord.”

In August, some members of the board posted messages on social media claiming Mr. Shafid did know what sharia was, even though he would claim otherwise. They claimed he is a practicing Moslem. (Oh no!)  Many Republicans in Tarrant County oppose the move. Mr. Easton has rightly noted this is pure religious discrimination. Mr. O’Brien insists they did not oppose Mr. Shafid because he is Muslim, but because they oppose the global jihad to conquer nations and make them subject to sharia law. See Ft. Worth Star Telegram report for more information.

Ok, I get that. We should all oppose jihadis who seeks to impose anything on unwilling persons. I served in one war to help stop them from killing people in Iraq. But, what does global jihadism have to do with Dr. Shafid? He is a doctor in Southlake and sits on the City Council there. Somehow, I doubt he has spent time in the forces of ISIS or Al Queda…….

 

We often hear about the Magna Carta and how that great document eventually led to our Declaration of Independence. But, what was the Magna Carta all about? In 2015, San Antonio’s own Prof. Vincent R.  Johnson at St. Mary’s Law School wrote a nice piece about the Magna Carta. He explained in his article what was so new and ground-breaking about the “Great Charter.”

One of the problems with the Magna Carta, he explains, is that it is not organized by topics. One must study the whole document to understand it.

One of the first topics Prof. Johnson mentions is due process. The bad King John would frequently take action “by force of arms against recalcitrants as though assured of their guilt, without waiting for legal procedure.” In some cases, noblemen were deprived of their estates not by their peers, but entirely by Crown nominees. So, Clause 39 states: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Without due process, nothing else matters. No right can be protected without due process. This clause ensured the king could not seize property aided and abetted by his cronies.

Today, we often cite the Magna Carta as the basis for trial by jury. Prof. Johnson explains that some historians disagree. Clause 39 refers to judgment by one’s equal peers. But, one historian says the “judgment” refers to the initial decision regarding how trial would be conducted. The jury of peers would decide whether trial would be by ordeal, by hot iron or by water, compurgation, wager of law, trial by battle, or production of charter. Judgment, according to this view, did not refer to the final decision, but to the method to reach that final decision. The men of the time believed that God would render the final decision after one of these trial methods.

“Compurgation” refers to the medieval practice of of allowing the accused to swear an oath regarding his innocence. The accused would then need an oath from a certain number, often 12, other persons saying they believed the oath of the accused person.

But, added the professor, regarding a dispute between then King John and King Alexander of Scotland, the Magna Carta provided that a dispute over hostages should be resolved by judgment of his equals in “our court.” So, at least when trial by combat or by ordeal was not possible, the signers of the Magna Carta believed that trial by peers was the solution. So, suggests Prof. Johnson, some portions of the Carta did indeed refer to the trial itself, not simply the means by which trial would be conducted.

Clause 39 also presented a new form of evidence. It required that in the future, no official shall place a man on trial upon his own unsupported statement. He must produce credible witnesses to support his own “official” assertion. Officials at the time were generally lords. So, this clause removed from the lords the power to imprison a common man simply on his own, unsupported word.

A well-known provision, Clause 40 provides simply, “To no one will we sell, to no one deny or delay right or justice.” In a time when the Catholic Church would routinely “sell” dispensations, many judges were bribed to rule one way or the other. This provision set a new standard, by which justice was (mostly) not for sale. We take judicial independence for granted today, but once, that was not so.

Clause 36: “In [the] future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.” The writ of inquisition allowed a criminal defendant to avoid or delay trial – which was often trial by combat. Some call trial by combat “legalized private revenge,” because the accuser could exact the combat. The writ of inquisition involved a procedure in which one’s neighbors could could exonerate a defendant. The writ, however, was used as a revenue device by King John and was sold only to those with deep pockets. Making this writ freely available decreased the numbers of trials by combat.

The Magna Carta addressed proportionality in sentencing. Clause 20  provided. “For a trivial offense, a free man shall be fined only in proportion to the degree of his offense, and for a serious offense correspondingly, but not so heavily as to deprive him of his livelihood. In the same way, a merchant shall be spared his merchandise, and a villein (a feudal tenant) the implements of his husbandry, if they fall upon the mercy  of a royal court . . . ” The goal was to not reduce a criminal to beggary. There were similar provisions for earls, barons and clergy. The concept, which was new at the time, was to make punishment “fit the crime.” We see this concern still resonating on our modern time when some seek reforms regarding bail. Bail for misdemeanors often result sin persons staying in jail for months before they see a trial.

Widows could be married to any man willing to pay the going rate. The payment would be made to the widow’s feudal overlord. But, some widows were wealthy enough to outbid suitors and buy a charter guaranteeing she would not have to remarry. King John did a fruitful business in selling these charters to women who wished to marry their own choice, or not remarry at all. Clause 8 provides, “No widow shall be compelled to marry, so long as she wishes to remain without a husband. But she must give security that she will not marry without royal consent, if she holds her lands of the Crown, or without consent of whatever the lord she may hold them of.” This provision created new legal rights for women. This was not true freedom, but it was a step.

Clause 1 was addressed “TO ALL FREE MEN OF OUR KINGDOM.” Clearly, the rights in the Magna Carta were guaranteed to all free men, meaning not to vassals and the like. Clause 40, which guaranteed access to justice, was not limited to free men. It simply said “to no one will we sell, to no one deny or delay right or justice.” So, Clause 40 was much broader in scope than just the free men. And, Clause 60 asked that regarding all these rights, “let men of our kingdom . . . observe them similarly in their relations with their own men.” Clause 60 then expressed the hope that these rights would be extended by the free men to to those not free.

The treatment of debtors was addressed. Clause 9 provided that the King would not seize any land or or rent in payment of a debt, so long as the debtor had movable goods with which to pay the debt. That means the creditor could not seize land when smaller goods would suffice to pay the debt. That provision provided some protection in an agrarian society, so the debtor could still earn a living.

The Magna Carta was not a perfect document. But, it was ahead of its time. The protections afforded the common free man far surpassed that found in other countries of the time. It was to these protections that the Founding Fathers looked in 1776.

As I have mentioned here before, I served 12 months in Iraq during the Iraq war. It was one of the most wonderful experience of my life – except when it was not! ….   Seriously, it was a searing and very positive sort of experience, overall. The big fear in the war was the IED’s, also known as roadside bombs. A large IED, and by the time I was there in 2005-2006, most IED’s were large – a large IED would obliterate a HMMWV. One sailor, a Navy SEAL, Dan Crenshaw, lost an eye to an IED. He probably lost more than that, but not that he can discuss.

I knew a few soldiers who drove through IED’s and lived to tell the tale. Even when you live, the IED does things to your brain. There is something about the concussion effect on the brain in a close confined space, lined with armor, that harms your brain. Doubtless, Dan Crenshaw suffers other, unseen effects. Mr. Crenshaw is running for Congress as a Republican in Texas.

So, when Pete Davidson makes a joke about his eye patch and comments, “I’m sorry, I know he lost his eye in war or whatever…..  whatever,” I do not get the joke. In fact, I find his comment pretty offensive. See CBS news report. I like SNL fine. But, jokes about losing body parts to an IED just are not funny to me.

I knew a soldier, a National Guardsman who went outside the wire often. It was his job to leave the relatively safe confines of the FOB several times a week. He drove through a couple of IED’s. He said the ringing in hs ears would last for days afterward. He wrote the name of all the soldiers his unit lost on his helmet. He wanted to remember them.

Pete Davidson lost his father in the 9/11 attack. He should understand “sacrifice,” we would think. Losing a dad who was a fire fighter is similar to sacrificing in a war zone.

A female comrade was a truck driver in Baghdad. They were told the terrorists were using kids to stop convoys. “Do not stop to help kids!” she was told. If she stops, the entire convoy has to stop. When you stop, you get attacked. She did not stop for kids. Years later, she was still dealing with deep PTSD because she might have run over a child.

A young soldier was in a Reserve unit. He thought he got out of the Reserves. He should have been, but was not processed out. About a year after he thought he was out of his Reserve unit, he received a phone call, “Chin, get over here in 30 minutes, or you will be court-martialed!” Chin did get there in 30 minutes, barefoot and without a shirt. Chin served his 12 months in Iraq and never complained.

Another major went home on his six month break. He found his wife was dating someone. That someone was reading bedtime stories to his children. That major came back after his break and did his second six months, knowing he would need a divorce lawyer when he got back home. Yet, that same major had to make major decisions, like who leads the convoy when his unit has to travel 2-3 hours in pitch black darkness with no headlights, or who mans the turret gun in his vehicle when the main guy is hurt. He has to focus, or people get hurt. There is no time for self-pity.

I am sure Pete Davidson faced some huge emotional issues in losing his father. You have to respect his experience. But, that does not give him space to minimize the service and sacrifice of others. None of these war experiences deserve a “whatever.” Neither does a sailor who lost his eye.

English-only policies are acceptable if they are related to safety concerns. Otherwise, they are generally viewed by most courts as evidence of discrimination. English-only policies are also rare as hen’s teeth in San Antonio. Yet, according to a recently filed lawsuit, La Cantera imposed an English-only work rule for its workers. But, if the allegations are to be believed, the policy only applied to Spanish speakers. Farsi  speakers could speak in Farsi at work.

The Equal Employment Opportunity Commission filed suit against La Cantera alleging the resort imposed the policy and then fired some employees when they violated the new rule. One worker of 12 years was fired after he complained about the rule against speaking Spanish. One worker who spoke Spanish at an orientation meeting was escorted rom the room after he spoke Spanish.

One supervisor poked fun at a Spanish accent. One worker was fired with a notation in his personnel file that he spoke Spanish while using his personal cell phone.

In October, 2014, a worker went to Human Resources to complain and was told, “This is America, so speak English! What’s the problem?” When even HR does not see a problem with that sort of rule, then the employer has a serious problem. See the San Antonio Express News report here. And, imposing a rule like that in the San Antonio area suggests management is simply tone deaf.

Judge Fred Biery is a wonderful asset to the San Antonio legal community. Recently, he demonstrated again why he is the right judge at the right time. One of the costliest and most time-consuming lawsuits in recent memory is the House Canary v. Quicken Loans, Inc., No. SA-18-CV-0519 (W.D. Tex. 8/14/2018) lawsuit. A few months ago, a Bexar County jury awarded $700 million to the tech startup, House Canary. The lawsuit stems from a subsidiary of Quicken Loans which had asked House Canary to develop software. The subsidiary sued for fraud and breach of contract. Quicken Loans lost in one of the largest jury verdicts in Bexar County ever. See San Antonio Business Journal report here.

Quicken Loans then filed a related lawsuit in federal court. House Canary moved to dismiss or to transfer the suit to Michigan. At issue are jurisdiction, venue, and opposition to injunctive relief, all the normal requisites for time-consuming and expensive litigation. Judge Biery often speaks to the increased cost of lawsuits. His father and uncle were well known trial lawyers in San Antonio. Judge Biery is qualified to speak to the increased litigation costs in today’s society.

So, he called for a status conference, likely anticipating yet another drawn out legal battle. He wanted the parties to act in a civil manner. He expects zealous advocacy, he said, but no “elementary school behavior.” He expects the parties to produce all information requested in discovery. Lay the cards on the table, he ordered. The Court observed, and the respective lawyers surely know, that all would be revealed anyway if the case is appealed and then remanded. It would be more efficient to first produce what you have.

He asked the parties (i.e. the respective lawyers) to avoid “shrill” pleadings. He warned them that he has in past lawsuits ordered opposing lawyers who violated his rules to sit in timeout in the rotunda of the courthouse. He ordered another set of lawyers to kiss each other on the lips in front of the Alamo with cameras present. He discussed indirectly the change in litigation in San Antonio. Once the city was home to some 300 lawyers, all of whom, knew each other. They did not need court orders, because once they reached an agreement, they would abide by that agreement. He seemed then to point the finger at “Yankee” lawyers, that is lawyers moving into the state from the north and western regions of the country. He helped to make his point by including a map of Texas with arrows pointing at the state boundaries from Oklahoma and New Mexico, indicating migration from those states and beyond. He reminded us of a saying by Hobart Huson, a former San Antonio lawyer and historian, “Texans, you are guarding the wrong river.”

The Judge is certainly correct that us lawyers are more litigious than our predecessors. But, perhaps, if we start guarding the right river, we can find a balance. See Judge Biery’s order here.