San Antonio Employment Law Blog

Employee Handbooks Need to Change

Tom Crane — Fri, 12 Mar 2010 09:36:20 -0600

Mike Maslanka, generally a defense lawyer, offers a good point about employee handbooks. All large employers have them. They provide concise, easy-to-read rules. But, employee handbooks generally do not provide a purpose for the rule. They do not explain why a particular rule is necessary, or even better, why the rule provides a benefit to the employee. For example, every handbook explains that the employee is at-will and and can quit anytime. That means, the employer can terminate the employee at any time. Mike suggests employers explain how that benefits both parties. One could, for example, insert a sentence explaining that this flexibility allows either party to seize available opportunities. A handbook could also explain the rules regarding hostile work environment ensure that the best employees are allowed to be productive.

In the US Army, we called this process "task plus purpose." Every mission should provide the purpose of a particular mission to a soldier. If you explain the purpose of a particular task or mission, you provide that soldier the flexibility to react to changing circumstances. For example, do not just tell a captain his men must seize a particular objective. Tell him his troops must secure an objective in support of another attack. That way, if the objective is secured before the captain gets there, he will know that he should react by supporting the attack in some other way. This sort of flexibility allows nimble reaction to a fluid situation. He will not have to wait until he can call the general on the radio to obtain new guidance.

But, this flexibility also incorporates the Captain into the overall strategy. He is not just a cog, but an integral part of the plan. If you bring the Captain and his troops into the overall battle plane, they will treat it as their own plan. Any employee needs to feel part of the overall strategy. They need to buy into the overall plan, not just their small part of it.

But, the disconnect in this scenario is that some employers do not want the employees to feel they have a voice in company strategy. Some employers believe that in giving employees a voice in how to sell product or how best to fabricate machinery, they may seek a voice in other areas, as well. If so, that view is short-sighted.

Americans are generally independent. We will follow orders or direction but we want to know why. Our military forces for 200 years have always needed some degree of explanation before following direction. The new generation, the so-called "millenial" generation, seeks this understanding even more so. An employer who ignores these facets of our national character does so to their detriment.

San Antonio Unemployment Increases

Tom Crane — Wed, 10 Mar 2010 09:26:00 -0600

The national unemployment rate remains steady at 9.7% this month. The state unemployment rate remains steady at 8.2%, still lower than the national rate. The San Antonio area unemployment rate did increase from 6.9% to 7.7%. A year ago this month, the San Antonio rate was 6.4%.

Length and Cost of a Lawsuit

Tom Crane — Tue, 09 Mar 2010 08:38:29 -0600

My friend Gene Lee wrote a good post about how long discrimination lawsuits can take. He refers to statistics showing that from start to finish, the average lawsuit will take 22 months. That sounds about right for the San Antonio area, also. Here in South Texas, we can file the typical discrimination lawsuit in state or federal court. The length of litigation time is about the same for either venue.

As Gene explains, the discovery process will take months, sometimes years. In employment cases more than other cases, the relevant "evidence" is mostly in the hands of the employer. So, as one might expect, employers resist providing evidence whenever possible. "Discovery" is the process we use to obtain relevant evidence. Discovery includes written questions and requests for documents. It also includes depositions. Discovery is often the heart of the case for both sides in an employment suit.

Depositions are the biggest cost in any lawsuit. Gene Lee also put together a nice post about the costs of a lawsuit. As Gene explains, you do not have to depose every critical witness, but it sure helps to depose anyone and everyone.

And, of course, as Gene explains in both posts, after everything is done and you win, the employer side will almost always appeal in an employment case. Employers fare very well in appellate court. So, they have strong incentive to contest any jury wins. The appeal itself here in South Texas will require another 1-2 years to complete. If one must appeal to the Texas Supreme Court, that would take significantly longer. I recently saw an article about a party who actually sued the Texas Supreme Court because they had heard his appeal four years ago and still had not issued a ruling. Ouch!

An Employer Cannot Control a Manager's Lawyer

Tom Crane — Thu, 04 Mar 2010 09:17:54 -0600

In Texas employment lawsuits, sometimes both a manager and the company are named in a lawsuit. In such situations, the employer typically provides a lawyer for the management official. "Provides" generally means pay for. Almost always, the same defense lawyer represents both the manager and the company. But, the manager's interest and the employer's interest are not always the same. In a recent case, the New Jersey Supreme Court looked at the arrangement used by the employer and found some ethical problems.

The employer told the employee which attorneys they could hire, agreed to pay for them, but said the employer could cease payments at any time. The company told the employees they could hire their own attorney if they wished. The matter was criminal. The state Attorney General was the plaintiff. The AG's office objected to this arrangement and tried to disqualify the counsel for the employees.

The New Jersey Supreme Court disapproved of the "take it or leave it" nature of the attorney representation plan. Relying on several ethical rules, common to most states, the court found 1) that in the future, the employee would have the right to pick his/her own lawyer at the employer's expense, 2) that the employer could not stop paying the lawyer without court approval, 3) the counsel could not withdraw without court approval, and 4) specifically held that the employer could not terminate payments simply because the employer did not like the tack the employee and his counsel were taking. See In re State Grand Jury.

Texas has a similar ethical rule to New Jersey's: no one but the client can tell the attorney how or what to do in a litigation. In some situations, both the company and a lower level manager are named in a lawsuit. The employer provides the same lawyer for both he company and the manager. In such situations, who is the client? Sharing the same lawyer works well for some situations, but not for others. What happens, for example, when the company has some liability regarding a policy which the manager faithfully followed? That is, the company's policy is at fault, but not the manager. Or, what happens if a higher level manager uttered some discriminatory statement about which the lower level manager has personal knowledge? These are conflict of interest situations. But, the company's lawyer has strong financial interest not to raise these potential conflicts. If the company's layer raises these potential issues, he risks losing a valuable client for the law firm.

When you have a conflict of interest situation, the company's lawyer should quit. He cannot represent both parties any longer. If the company then provides a separate lawyer for the lower level manager the company cannot control the tactics employed by that lawyer. And, relying on this New Jersey decision, the company cannot terminate the lawyer once the representation heads south for the employer.

Binding Arbitration is Not So Binding When You are Bob Perry

Tom Crane — Tue, 02 Mar 2010 15:40:00 -0600

No one supports frivolous lawsuits. But, few have done as much to stop supposed frivolous lawsuits as has Bob Perry. The huge home builder from Houston, Texas has donated tens of millions of dollars to political contests largely to oppose consumer lawsuits. He funded the SWIF boat for truth campaign against John Kerry. He helped George Bush become governor of Texas. His pet issue throughout all these donations has been arbitration. The Texas Residential Construction Commission was created largely due to his support of key state legislators. Due in no small part to Bob Perry's largesse, binding arbitration is now a fact of life for most Texans from employees to home buyers to automobile owners.

One particular lawsuit by one of his home buyers has dragged on for over a decade. Bob Perry was determined not to let this case go to a jury. He wanted it to go to arbitration. It did go to arbitration, where Bob and Jane Cull were awarded $800,000 by the arbitrator. Yes, some consumers do win in arbitration. Mr. Perry was not satisfied. He found a way to make binding arbitration not so binding. He appealed twice and lost until he came to the Texas Supreme Court. The Texas Supreme Court is a very friendly venue for large corporations and for Bob Perry. The Texas Supremes came out for their man. Bob Perry had donated $21 million to the Texas Supreme Court between 2006 and 2009. Every member of the court had accepted money from Bob Perry. Yet, not one member of the Texas Supreme Court recused themselves from his case. In a close 5-4 decision, the Texas Court disallowed the arbitration award and sent it to trial in 2008. I am sure this is the only Texas case that has ever gone to arbitration but was overturned on appeal in the past ten years.

So, yes, Bob and Jane Cull's case then went to a jury, an actual trial in 2010. The Cull's told the jury how the attic caved in and the foundation heaved and how Bob Perry refused to fix it. On March 1, 2010, the jury responded. They awarded the Cull's $58 million, including $44 million in punitive damages. Bob Perry will surely appeal. He has already described this jury verdict as "jackpot justice."

The Cull's originally bought their dream home, their planned retirement home in 1996. Now, in 2010, with years more for appeals, they will not get their home fixed anytime soon. But, this "jackpot justice" jury award will surely help them if Bob Perry decides to discuss settlement.

Employee Depositions Critical to Successful San Antonio Lawsuits

Tom Crane — Tue, 02 Mar 2010 11:18:09 -0600

I spoke about depositions in general a couple of weeks ago. Now, let's talk about employee depositions in a San Antonio employment lawsuit. The plaintiff employee deposition is critical to success for any employment lawsuit. The plaintiff employee must be able to show the opposing attorney and the employer that the employee can testify, can present well to a jury and tell a coherent story. It is not as easy as it sounds.

The employee has to get past some of the pain, enough to testify without breaking down. Too many tears will impede a story. And, as Mike Maslanka shows in a recent post, the plaintiff employee must be able to look at his/her case with enough objectivity to admit possible error on his/her part. Mike mentions one if his favorite questions to ask (in a deposition, I am sure) "what errors on your part helped lead up to the termination?" No one is perfect, so if you answer, "none," you risk appearing dishonest. If you admit to too many mistakes, or to some very significant mistakes, then you risk losing your entire case.

The plaintiff employee deposition will go as long as several hours and as short as a couple of hours. It is emotionally draining for every client I have had. It can get intense. The plaintiff employee must re-live the very horrible experience of losing a job through no fault of his or hers. I have had many clients cry either during the deposition itself or during a break.

Some clients do not hold up, at all. Some plaintiff employees are suffering from various issues that cause them to be easily lead by opposing counsel. One former client admitted to opposing counsel that he complained about discrimination on Tuesday, even though he and I both knew it was Monday. if it was Monday, then he had a good retaliation claim. If it was Tuesday, then he had no retaliation claim. Why would he say Tuesday? I may never know, other than he was simply easily lead on cross-examination.

Employers will often ask the same question two or three times. The same question. But, it is an important question. "State all facts on which you believe you were the victim of discrimination." If the plaintiff employee omits one or two key facts, then s/he may lose the right to allege those key facts in the lawsuit.

Another "catch-22" is that nice is important, Any witness risks offending the jury if the witness is too rude or pushy. Niceness does count. But, if the witness or plaintiff employee do not "fight" for their position in a deposition, then they risk the opposing lawyer defining their story. The plaintiff employee must be "nice" to some degree, but s/he also needs to fight for her answer, sometimes.

Cross examination is all about one word answers. Opposing counsel wants the plaintiff employee to answer yes or no. But, some questions require explanation. "Isn't it true you never called in when you were sick?' Yes, but..... "Yes, but the employer did not require employees to call in if they were ill more than one day. We did not have to call in everyday if we were out more than one day." The explanation fills in a huge gap about why the employee did not call in. At some point, the employee plaintiff must provide this key fact. The risk is that in not providing a key fact, the plaintiff lawyer may not be able to use that key fact when the judge decides summary (ie, quick) judgment.

So, yes, the plaintiff employee deposition is very important.

EEOC Hit with $4.5 Million in Attorney Fees

Tom Crane — Wed, 24 Feb 2010 10:02:54 -0600

The EEOC was hit with an award of $4.5 million in attorney's fees by a federal district court in Iowa. That is, the EEOC was ordered to pay $4.5 million to the winning side in their lawsuit. Workplace Prof has discussed the award. Turns out the EEOC filed suit on behalf of one woman and unspecified other women in a sex harassment case. The employer was a trucking company with many different locations. So, as the lawsuit progressed, the EEOC added other female plaintiffs as they came forward. The women were in different locations working for various male supervisors and co-workers. The EEOC then turned the initial lawsuit into a "pattern and practice" case.

Eventually, the district court dismissed claims on behalf of some women and issued summary judgment against the rest of the women. So, the EEOC lost on all claims. At some point, there were 67 women with claims still pending but into which claims the EEOC did not investigate and did not attempt conciliation. Thus, the EEOC created a huge burden for the court and the employer, said the court.

As Law Professor explains, its a case of darned if you, darned if you don't. If you add the new clients, then you do have a pattern of sex harassment. But, many women filed their charges after the lawsuit had been filed. So, yes, it would appear to the employer that the lawsuit would never end, as new plaintiffs joined and deadlines were extended. The EEOC could have chosen not to add the women to the one lawsuit, but then lawsuits would have been pending against the employer for years and years.

Its a case also of the EEOC simply does not perform actual investigations 99 times out of 100. Yet, they do have the power to complete investigations. More is expected of them. But, because they have so few investigators, they accomplish very little. Most US district court judges are aware of the EEOC's limitations. But, the EEOC's limitations essentially make more work for the federal court system.

Automatic Leave Policies Violate the ADA

Tom Crane — Tue, 23 Feb 2010 11:06:17 -0600

In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities. Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims. The EEOC represented persons with disabilities who had worked at Sears. In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis. This is the largest ADA settlement ever. Some 235 Sears employees received an average of $26,300 each.

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies. See report. Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation. These policies are fairly common, since they supposedly avoid claims of discrimination. The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically). If all employees with health problems are treated the same, then there is no discrimination, correct?

No. Wrong, because the ADA requires an individualized assessment of a person's need. Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation. For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave. As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now. Many of us viewed such policies as unlawful. Now, we know they are unlawful. Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation.

Judge Keller Still in Hot Water

Tom Crane — Mon, 22 Feb 2010 08:19:42 -0600

Judge Keller of the Court of Criminal Appeals is not out of hot water, yet. The Court of Criminal Appeals, of course, is the highest court in Texas for criminal cases. So, her case is significant. See San Antonio Express News report. The special counsel appointed in her case recommended that she suffer some sort of discipline. The Special master, Judge Berchelmann, had previously found her conduct deficient but said Judge Keller did not break any laws. Well, as the special counsel points out, Judge Berchelmann was very critical of her conduct. In the legal world, we are not supposed to violate custom or even unwritten rules without a good reason. Most lawyers would suffer some sort of discipline from the bar association for such conduct. So, the special counsel recommends that she be disciplined simply for violating protocol.

Judge Keller's latest reaction is concerning. Her lawyer, "Chip" Babcock filed objections to Judge Berchelmann's report. He referred to Berchelmann's comments that Judge Keller showed poor judgment in not being more helpful as a public servant. Judge Berchelmann said her failure to keep the clerk's office open was "highly questionable" and that failure was a reason many in the legal community are not proud of her actions. Mr. Babcock commented that Judge Keller is not part of some "popularity contest among Texas lawyers."

Judge Keller and her lawyer apparently do not "get it." Judge Berchelmann was explaining as respectfully as he could that Judge Keller violated known protocol. She did not violate any statute or law. But, for a lawyer or judge, violating known, expected protocol is also serious. "Discipline" in the legal world can include everything from a private letter of reprimand to suspension of the right to practice law. It is bad enough that she did what she did. It is even worse that she does not appreciate the gravity of her actions. Judge are public servants, after all. More is expected of them,. not less.

As I have discussed many times, the background and experiences of a judge do matter. Judge Keller spent many years in the appellate section of the Harris County District Attorney's office before becoming a judge. So, she has done little actual litigation in her career. It shows.....

Workplace Romance Often Leads to Marriage

Tom Crane — Wed, 17 Feb 2010 21:14:36 -0600

They are sometimes forbidden, but they occur all the same. Work place romance always occurs, and perhaps surprisingly, often leads to marriage. According to a recent San Antonio Express news article, more than 20% of office romances lead to marriage. One wedding planner says 25% of his weddings started in the workplace. The parties are not always employed by the same firm, but work helped them get together.

But, the article reminds us, people need to be professional about the romance and not allow the romance from getting in the way of work. Amen. The best work policies in the world cannot prevent employees from becoming unprofessional. Emloyees must do that themselves.

Loser Pays Winner's Court Costs and, Sometimes More

Tom Crane — Tue, 16 Feb 2010 11:02:37 -0600

Yes, you too can be hit with an award of attorney's fees. In federal court, the losing party is almost always ordered to pay the other side's court costs. And, yes, if the plaintiff has a "frivolous" case, then the plaintiff (ie, the employee) can be ordered to pay the defendant's (employer's) attorney's fees. See this report of a case in which the EEOC was ordered to pay $4.5 million in attorney's fees for the employer. It us unusual, at least in the Western District Of Texas for a judge to find a plaintiff's case to be frivolous. And, there is some unfairness in the whole process, since frequently, the employer's defense is very frivolous.

But, a plaintiff should always have enough evidence to avoid charges of frivolousness. Always. Factors that help show frivolous include poor investigation prior to suit. The EEOC would be held to a higher burden since they are supposed to conduct an actual investigation of all charges of discrimination long before filing suit. Everyone knows they usually do not conduct an actual investigation. Unlike the private plaintiff lawyers, the EEOC actually has the tools, subpoena power, etc. with which to conduct a real investigation. Other factors indicating "frivolous" include having enough evidence to defeat summary judgment, or at least, make summary (ie, quick) judgment a close call. if a plaintiff does not have enough evidence to get past the summary judgment hurdle, then they really should not be filing suit.

This time, the EEOC is found to have filed a very large lawsuit without enough evidence to overcome summary judgment. Many federal court judges are predisposed to find against employees. But, still to award attorney's fees at all, much less this large, suggests there may have been issues with the quality of the EEOC's evidence.

I try to always tell my employee clients that they too could be hit with an award of attorney's fees in federal court. That is a real risk in every discrimination lawsuit. And, as mentioned above, in every federal lawsuit, the losing side will almost always be ordered to pay the other side's court costs. Court costs can amount to $5,000 or more. Think before you leap.

Depositions Can Become Very Tense

Tom Crane — Mon, 15 Feb 2010 08:41:59 -0600

We do this thing in litigation we call "depositions." One side can ask questions of a key witness. The testimony is recorded by a court reporter. Depositions can be very dull. They an also be very tense. After all, if the parties got along, there would be no lawsuit. Every client I have ever had was very stressed at being deposed for hours about their story. Male and female clients have cried at various times during their depositions. The atmosphere can become very tense. So, when I see the following video clip, I am not surprised: link. This is an extreme deposition. But, I am sure a good deal of stress preceded this deposition. There are no judges present at a deposition. But, as lawyers, we are supposed to carry on the deposition as if the testimony was being provided in court.

This second video clip is more typical of depositions: link. The key in any deposition is to simply always be sure to tell the truth and never guess. Some plaintiff employees feel the need to answer every question, even if the answer is a guess. Do not guess. There is no requirement that a witness remember every fact. In fact, most witnesses do not recall every detail about a particular event. Some witnesses feel the need to recall every date. But, again, there is no requirement for a witness to recall every detail.

In the world of litigation, "niceness" does count. See this video clip in which a witness is supposedly tough in responding to a particular question. The witness probably enjoyed some momentary satisfaction in expressing himself. But, if that clip was shown to a jury, the jury would be far less impressed with his answer. Juries do not appreciate "tit for tat." On the contrary, juries respond to professional disagreement. Everything a plaintiff or defendant do in a lawsuit is recorded and saved. Every party needs to be sure they do nothing that could cost you a vote or two with the jury.

Many clients press me to respond tit for tat when the other side takes a cheap shot of engages in unprofessional behavior. We must resist the temptation to give in to our inner "Mongo." As a well known litigation commentator, James McElhaney, says, "Mongo not like. Mongo want revenge!" Mongo may gain brief satisfaction. But, Mongo will probably lose the trial.

Law Firm Sued for Wage Law Violations

Tom Crane — Thu, 11 Feb 2010 09:04:06 -0600

One would think that law firms would follow the law. Well, sometimes, its is more the opposite. A medium sized Ohio law firm is sued for wage violations in its office. The firm pays salary to secretaries and never pays overtime. Lazzaro Law Firm in Cleveland represents some 40 secretaries in a class action law suit filed in US district court. The secretaries were classified as executive, even though none of them supervised other employees or performed any managerial work.

Anthony Lazzaro, the plaintiffs' lawyer, said he doubted this particular firm is the only firm to commit this violation. Lazzaro specializes in wage and hour cases. As one lawyer commented, this is probably a failry common mistake in many businesses and law firms.

Applicant Seeks More Time for LSAT

Tom Crane — Wed, 10 Feb 2010 09:38:05 -0600

A man has filed suit to obtain more time to complete the LSAT, the law school admission test. See report. The LSAT is critical to any admissions application for law school. Title III of the Americans with Disabilities Act provides that an individual with a disability is entitlted to necessary accommodation. Title III of the ADA applies to public accommodations, not to employment. Matthew Scott Jones of Austin reports a diagnosis of ADHD and seeks additional time in which to complete the test. He filed suit in the Western District of Texas.

The Law School Admission Council, however, responds that Mr. Scott has not shown that his disability affects a major life activity. That is, to qualify as a person with a disability, he must show that his disability affects a major life activity, such as walking, sleeping, eating or learning. This is a frequent defense to such claims. ADHD is one of those disabilities that is hard for some to understand. All emotional disabilities carry that sort of liability. They are simply hard to understand and, therefore, hard to litigate. In such situations, the person with the disability must present "extra" good evidence that the requested accommodation is necessary.

Litigation should not be like that. A person with a legitimate disability should not carry an "extra" burden. But, that is true of many areas of law. The eventual audience is a jury of your peers. Some of your peers do not understand some issues. Litigation is as much about education as it is about persuasion. In fact, most test providers now know they must provide accommodation to persons who who are blind, cannot hear, etc.

In this case, if Mr. Jones has not already provided medical documentation that he needs more time, he surely should present such evidence, now.

Low Wage Workers Are Not Paid What They Earned

Tom Crane — Tue, 09 Feb 2010 08:46:07 -0600

In a recent survey, over half of low wage workers were found to not be receiving as much pay as they have earned. According to a study by the National Employment Law Project, the average worker lost $58 per week in unpaid wages. About one-fifth of workers were not paid the prevailing minimum wage, but that amount varied by industry. 53% of laundry workers to 2% of construction workers ere not paid the minimum wage. The survey focused on New York, which has a high rate of union activity in the construction trades.

Even more common was the failure to pay overtime wages (1.5 times the hourly wage) to workers. About one-fourth were not paid their normal hourly wage or simply not paid overtime at all, said the report. The survey included some undocumented workers. The survey estimated that some 315,00 workers in New York are not paid what they earned.

Physical Attractiveness Suggests Gender Based Discrimination

Tom Crane — Mon, 08 Feb 2010 14:31:08 -0600

One of my first jobs was waiting on tables. I envied the female waitresses because they often scored better tips simply because they were attractive. The women knew that. They generally accepted that fact and used it. But, what if the employer told the waitresses, as some do to put on more makeup and look more feminine? Would that be discrimination? The argument would be that if stereotyping by gender itself is a form of discrimination. In one recent case, a female clerk at a hotel was fired because she could not or would not dress up and put on that "Midwestern Girl look." The clerk needed to look pretty, said her manager. Was that discrimination based on gender?

The 8th Circuit Court of Appeals thought so and ruled in her favor. Several circuits have adopted the reasoning that gender stereotyping is discrimination. The 2-1 decision resulted in one dissent. The dissenting judge said that hiring or firing based on physical attractiveness is not discrimination unless it is pretext for putting women at a disadvantage. One commentator agrees with the majority in this decision.

Big Law is Sued for Discrimination

Tom Crane — Wed, 03 Feb 2010 08:58:35 -0600

Many non-lawyers expect lawyers to follow the law. Not always. In one recent lawsuit, for example, a major law form was sued by the EEOC for age discrimination. The employee claims in this lawsuit that his law firm, Kelley Drye, provides in its partnership agreement that if a partner wishes to continue working past age 70, he must give up any equity (ie, partnership) interest in the firm. The employee also claims his pay was reduced by $25,000 in 2009 after he filed his charge with the EEOC. If true, this would be a strong lawsuit. Age distinctions in a partnership agreement are relatively easy to prove. Taking reprisal after filing a charge is also relatively easy to prove. Kelley Drye is a one of the largest law firms in the country. One would expect them to follow the law better than others.

In a separate lawsuit, a black lawyer at another national law firm, Howrey, a global law firm, encountered racism in the Bruissels office. Howrey had recruited Ms. Menns from another firm. They sent her to the Brussels office. At the Brussels office, she was removed from favorable assignments and even moved to a different floor of the building. When she complained, she was told by management that she was so impressive that the white employees felt uncomfortable around her. The Manager also told her that because she was the first black lawyer, the staff was not used to being forced to be in a "subordinate position" to a black person.

She then contacted firm leaders in washington, D.C. The diversity committee and the firm CEO met with her in June, 2009. The young associate, Ms. Menns was fired that day. Ooops. Can anyone say retaliation? A bad day for a for a firm that ranked No. 13 out of the top 200 grossing firms for commitment to diversity.

Ms. Menns seeks $30 million in damages.

Vacation + Miracle Seeking does not = FMLA Coverage

Tom Crane — Tue, 02 Feb 2010 09:17:23 -0600

You gotta love these stories, sometimes. An employee goes back to her home country, the Phillipines with her husband for seven weeks. They visit family, friends. The husband is disabled. They visit a miraculous Catholic church, known for its healing abilities. The wife pushes her husband's wheel chair, comforts him, provides psychological counseling, helps with the luggage. Visiting family and friends consume perhaps 40% of their time. She is gone seven weeks and claims FMLA leave when she returns to the US. The employer denies her claim. She sues. Who wins? The employer. Because, she was seeking a miracle, not medical treatment, said the court. According to Mike Maslanka. Too, the court added, a priest is not a medical care provider under the FMLA.

In an opinion out of the Massachusetts district court, the judge said even if this trip constituted medical treatment, the FMLA does not cover a vacation trip with a sick spouse, even if treatment is an incidental part of that trip. Tayag v. Lahey Clinic Hospital. It is not clear to what extent, if any, caring for a sick spouse on a medically necessary trip would be covered under the FMLA. Courts have found that providing indirect psychological support for an ill family member does qualify as caring under the FMLA. But, in reading the opinion, it appears that the court was too troubled by the vacation aspect and the absence of actual medical treatment.

English Only Rules Spark Controversy

Tom Crane — Mon, 01 Feb 2010 09:39:20 -0600

English only rules always bring controversy, even at a bookstore in New Haven, Connecticut, very near Yale university. The EEOC generally frowns on such rules, but allows them for "business necessity." In this case, the book store is essentially claiming the customers are uncomfortable with employees speaking Spanish. Does the comfort of customers count as a business necessity? Maybe, according to Workplace Prof. It depends on whether there is evidence of discriminatory motivations. That means an employer seeking to implement such a policy needs to show something more than mere perception of what makes a customer happy.

It would also help to show some safety issue. .... Safety at a bookstore? Those paper cuts can be viscious.....

11th Circuit Overturns Prior Ruling

Tom Crane — Wed, 27 Jan 2010 13:26:51 -0600

The 11th Circuit Court of Appeals rendered a good decision on a sex harassment case. Reeves v. CH Robinson Worldwide. The latest version is an en banc decision overruling the result by an earlier 11th Circuit three judge panel. An en banc decision means all the judges of the Court participated in this decision, not just the original three judges who rendered the first decision.

The decision addresses the issue regarding the use of certain derogatory terms for women. Is the use of the term "bitch" inherently discriminatory toward women? The Court found that use of that term could indicate prejudice toward women depending on the context in which it was used. Note that not all circuits agree with this finding. The 7th Circuit, for example, has found that use of the term "bitch" is not necessarily targeted toward gender. But, the Reeves court found that use of the terms "bitch" or "slut" would inherently be more demeaning toward women. I think most people would agree, lawyers or non-lawyers.

The Reeves court further found that in this case, even if the men do sometimes use terms such as "bitch" and "whore" toward men, using such terms toward men does not make them less offensive toward women. "It is undeniable that the terms "bitch" and "whore" have gender specific meanings. Calling a man "bitch" belittles him specifically because it belittles women," said the Court. Duh. Its only amazing that such an issue must be appealed this far up before a judge can apply some common sense. Yes, indeed, the background and life experiences of a judge do make a critical difference in many cases.

The 11th Circuit also found that slurs directed at women in general could serve as evidence of prejudice toward a specific woman, thus joining the 2d, 4th, and 7th Circuits. So, the en banc decision overturns the prior three judge panel decision in this same case. It is, for once a good decision in favor of the employee.