San Antonio Employment Law Blog

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.

Unemployment Drops in San Antonio

Tom Crane — Tue, 26 Jan 2010 09:34:05 -0600

The good news is San Antonio is doing better than the rest of the country. Unfortunately, much of Texas is still hurting from the recession. See Texas Workforce Commission's recent report. Unemployment in San Antonio decreased in December from 7.0% to 6.8. But, unemployment in Texas went up from 8% to 8.3. Nationally, the unemployment rate was 10.0% in December. So, Texas is doing better than the country and San Antonio is still doing better than the rest of Texas.

Defamation in Texas

Tom Crane — Mon, 25 Jan 2010 10:03:03 -0600

Defamation refers to uttering an untruthful statement about someone. "Libel" refers to written defamation. "Slander" refers to oral defamation. In the employment context, defamation has an extra hurdle. In Texas, to charge an employer with defamation, the defamation must be made in the course and scope of his/her employment. That is, the defamatory statement must be related to the speaker's job. So long as the speaker makes the statement to persons with a duty or need to know, then the speaker will be protected by a qualified privilege. For example, if a manager makes a statement to someone in Human Resources about an employee, even if that statement is not truthful, then the qualified privilege would probably apply.

An employee can overcome the qualified privilege only be showing the publisher of the statement acted with actual malice. Showing malice is a high burden. It can be very difficult to show malice, that a person knowingly and deliberately caused harm. Malice is more than mistake or misunderstanding. To show malice, an employee would have to show the speaker knew or should have known the statement was not true and that the speaker sought to cause harm of some sort. Many employees have come to me seeking redress for defamation. Rarely have I seen sufficient evidence to make a case of malice.

For example, an employer fires a person for alleged stealing. the employee did not steal. But, how do we show malice? That is, how do we show the employer knew or should have known the theft allegations were not true? Most times, we cannot.

Many of the normal principles of defamation law apply to the workplace: the statement must be clear and unambiguous. It cannot be capable of two different meanings, one of which might be non-defamatory. Truth is always an absolute defense to defamation.

Judge Recommends Judge Keller Keep her Job

Tom Crane — Thu, 21 Jan 2010 18:14:32 -0600

Only infrequently do we get a glimpse into the inner workings of a court. We have been looking at the inner workings of the Court of Criminal Appeals, the highest court in Texas for criminal cases, and the inner thinking of Judge Sharon Keller. Now, we have the report of a relatively impartial observer, Judge David Berchelmann, of San Antonio. Judge Berchelmann is a sober, careful judge.

He finds that while Judge Keller's actions do not bring credit upon the judiciary, he believes that her actions did not rise to the level required to call for serious sanction. He finds her decision to not keep the clerk's office open to accept a late motion "highly questionable." From one judge to another, it rarely gets more direct than that. In judge-speak, that is pretty critical of her actions. Judge Berchelmann thinks her decision was very poor. I am not a criminal expert. But, I am amazed that she would deliberately, knowingly, prevent an appeal in a death penalty case. The stakes could not be higher. Contrary to what many non-lawyers may think, few judges want to base any decision on a "technicality." Most judges go to great lengths to avoid decisions based on administrative or clerical concerns. One would hope most judges would be focused on justice, not on closing time. Only more so when a man's life hangs in the balance. Her actions bring great discredit upon her and her office.

The scary thing is if this is what the Court of Criminal Appeals does in a high profile matter like a death penalty case, what are they doing in the less visible cases?

Electronic Monitoring by the Employer

Tom Crane — Wed, 20 Jan 2010 09:23:23 -0600

Electronic monitoring in the workplace is still an area of developing law. It is clear that an employer cannot use bugging devices and phone wiretaps to discourage or monitor union activity. It is also clear that no one, including employers, can intercept “wire, oral, or electronic communication.” But, what is “intercept”? What does that mean? For example, several cases have found that retrieving telephone messages dos not constitute an interception of the transmission.

The most important consideration is the extent to which employers have let employees know they may be monitored. If employees know they are being monitored, then that will reduce expectations of privacy. A frequent issue is use of work email. If the employer allows use of work email for personal use, the employer cannot later, for example, prohibit use of work email for union activity. Generally, the extent to which employers can invade an employee’s personal email will depend on the extent to which the employee has used work email servers to develop or send the personal email and the extent to which the personal email is password protected.

Texas does recognize the tort of invasion of privacy (if the invasion would be offensive to a reasonable person). In the workplace, there are varying levels of expectations of privacy. For example, if an employer provides lockers to employees, but requires them to provide their own locks, then the employee does have an expectation of privacy in her locker. So, yes, if the employer searches that locker without the employee’s permission, then the employer has violated the employee’s right to privacy. But, if the employer provides the lock, then there probably is no legitimate expectation of privacy.

A 2007 survey shows that many employer engage is some sort of electronic monitoring. Out of 304 employers surveyed, 65% reported the use of software to block connections to inappropriate websites. 96% block access to adult sites, 61% to game sites and 50% to social networking sites. 46% track key strokes, content and time spent at the keyboard. 12% monitor the blogosphere to see what is being written about the employer. 43% monitor employee email. So, yes electronic monitoring is a continuing practice.

Facebook Account Hacked

Tom Crane — Tue, 19 Jan 2010 11:26:42 -0600

Facebook account belonging to a tax lawyer is hijacked and used for scam. Tax Girl's account was hacked and messages were sent out saying she had been robbed in London and needed money. Tax Girl (aka Kelly Erb) has a wonderful blog on tax law. Now, her FB account is suspended until the damage can be repaired. Be careful out there in cyber space.....

San Antonio ML King Day March One of the Largest in the Country

Tom Crane — Mon, 18 Jan 2010 08:52:14 -0600

100,000 attend the Martin Luther King Day march held ever year here in San Antonio. Mayor Julian Castro says it is because our significant Hispanic population identifies with the civil rights struggle that King epitomizes. We were fortunate here not to have the clashes and strikes in the 60's and 70' seen elsewhere during the civil rights movement. In fact, San Antonio city leaders saw the approaching tide early. They voluntarily dropped the many vestiges of segregation in the 1950's and 1960's. Our city does suppprt ML King Day across the board. Many large businesses here allow their employees time off to attend the march and some even organize busses to transport employees tohe march. While far from perfect, we certainly do better than many communities across the country.

Without Martin Luther King and Lyndon B Johnson, there would never have been a Civil Rights Act of 1964. The Civil Rights Act of 1964 lead to all the other employment statutes that followed. We should all be grateful.

Coach Leach Amends his Petition

Tom Crane — Fri, 15 Jan 2010 08:16:04 -0600

An employment relationship that went bad. It happens all the time from Burger King to any corporate boardroom. When it happens in Lubbock, Texas to a major college coach, it becomes big news. Mike Leach filed his Third Amended Petition in state court alleging breach of contract, wrongful termination, among other things. He has added new facts suggesting "outside forces" conspired to get him evicted. But, as with any employment relationship, prior issues also serve as background evidence. He had a difficult negotiation of his contract just last year.

It is safe to assume Coach Leach had a "just cause" termination clause in his contract. Otherwise, none of these new facts would be relevant. If he did indeed abuse a player, then "just cause" means he could be fired without having to pay the remainder of his contract.

"Just cause" means he could only be fired for a just or good reason. Just cause is the opposite of "at-will." Not all, but very many individual employment agreements contain some form of a just cause termination clause. What is a just cause will be up to a jury. Texas juries can be very conservative. Coach Leach would have to show that Texas Tech did something more than reasonably rely on complaints from a concerned parent.

Eye Witness Testimony is Often Inaccurate

Tom Crane — Wed, 13 Jan 2010 20:45:05 -0600

It is pretty well accepted among most lawyers that eye witness testimony is often inaccurate. The story I heard in law school was that a professor staged a fake attack during class. He had someone walk into his room and pretend to shoot him. The shooter ran away and the professor jumped up to show his good health. To the students, it looked very real. The professor then asked the class to describe the shooter. The professor got some 30 different descriptions. It is very hard to describe a person or an incident accurately after just a few moments.

Now, we know this even more so, since so many inmates on death row have been freed with DNA evidence. In a recent Scientific American story, they report about a supposed rapist and killer convicted based on five eye witnesses. He too was freed with DNA evidence. 73 of the 239 death sentences overturned with DNA evidence relied on eye witness testimony. One-third of those 73 cases relied on one or more mistaken eye witnesses.

The authors of the article explain that one popular misconception about the brain assumes we see an event and later, we simply re-play that same event. Not so, say the researchers. In reality, we reconstruct the event, much like putting a puzzle together. Later, questioning by a lawyer may alter the memory by causing the witness to confuse actual recollection with information provided by the questioner. Researchers have succeeded in creating false memories in various studies, simply by suggesting realistic, but inaccurate facts. One-third of the subjects in one study reported recalling partially or completely the false information.

So, the article explains, various factors can cause faulty memory:

extreme stress at a crime scene
presence of weapons at the scene of the crime (adding to the stress and causing distraction)
racial disparity between the witness and the suspect
brief viewing times ate a lineup or other identification procedure
a lack of distinctive characteristics, eg a tattoo

Discrimination Laws in Texas

Tom Crane — Tue, 12 Jan 2010 09:26:15 -0600

Discrimination laws in Texas are enforced by the Texas Workforce Commission, Civil Rights Division and the Equal Employment Opportunity Commission. But, the CRD is only located in Austin, Texas. So, by far, most cases are filed with the EEOC. Both agencies have a work share agreement in which a charge with one will simultaneously be filed with the other agency. The federal statute is Title VII of the Civil Rights Act of 1964, while the state version is the Texas Commission on Human Rights Act. The TCHRA generally tracks Title VII.

Both statutes prohibit discrimination based on sex, race, national origin, and religion. The Americans with Disabilities Act prohibits discrimination based on disability. The Age Discrimination in Employment Act prohibits discrimination based on age. The EEOC investigates alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act. And, of course, the Texas TCHRA also tracks the ADA and the ADEA.

Any charge of discrimination must first be filed with either the EEOC or the TWC, CRD before proceeding to a lawsuit.

San Antonio Man Killed in Afghanistan

Tom Crane — Tue, 12 Jan 2010 08:06:09 -0600

LCPL Juarez, from San Antonio, was killed in Afghanistan last weekend. See San Antonio Express-News article. He was a graduate of Holy Cross High School.

Employees Fare Worse in Federal Lawsuit Study

Tom Crane — Mon, 11 Jan 2010 15:39:38 -0600

Recently, I wrote about a study showing that employers are losing more discrimination cases this past year. This was a study published by Manpower, a human resources firm. Yet, a separate study by two Cornell professors published in the Harvard Law & Policy Review shows just the opposite, that plaintiffs in employment cases are doing worse. These two professors are the same persons who prepared a study several years ago showing that employment plaintiffs generally do worse in federal court than other types of plaintiffs. Well, now, in this latest study, based on data from 1970 to 2006, we see that within the last five years, the number of employment cases has dropped dramatically in federal court. In 2001, employment cases accounted for 10% of all federal lawsuits. In 2006, that number dropped to 6%. I am sure that drop is due to the ever increasing use of summary judgment in employment cases.

For example, this study finds that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal. Too, the pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%). "Reversal rate" refers to those times when the lower court finds in favor of one party or the other. If you are a defendant, you have a 30% chance of reversing the district court. As a plaintiff, you have only a 10% chance of obtaining a reversal. Pretrial disposition refers primarily to summary judgment and motions to dismiss. So, when motions for summary judgment or to dismiss are granted, the employer has a 30% chance at getting the decision reversed. While, the plaintiff has only a 10% chance at reversing the adverse decision.

Looking at the reversal rate after a trial has occurred, the disparity becomes more clear. Defendants have a 41% chance of obtaining reversal. While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed. Thus, the authors point out, the federal system heavily favors the defendant (employer).

As the authors explain, this result is counter-intuitive. Discrimination cases by definition rely on evidence of intent and private conversations. One would expect reversal of a jury decision to be rare. Or, one would at least expect that reversal of a jury decision to be about the same for both parties. Since, trial outcomes in discrimination cases depend so much on credibility determinations by a jury. Such cases ought to be virtually immune from appellate review. The appellate judges were not present at trial to observe witness testimony. The authors believe the best explanation for this apparent discrepancy is that the federal judges have an "attitudinal" bias against such claims. That "attitudinal" bias would certainly comport with my experience with federal appellate judges. They are, on the whole, remarkably skeptical of discrimination claims.

But, so are federal district court trial judges. They are on the whole just as skeptical of discrimination claims. The authors note that federal trial level judges are skeptical toward discrimination claimants. Discrimination plaintiffs are among the least successful sorts of claimants in federal court.

The data from 1998 to 2006 shows the following success rates for plaintiffs:

ADA - 9% (Manpower study: employer wins 52%)

Title VII -11%

ADEA -12% (Manpower study: employer wins 33%)

FMLA -20%

The Manpower study I referenced on Jan. 6, 2010 does not describe the source of their data. This Cornell study published in the Harvard Law & Policy Review drew from federal numbers. Federal district clerks keep painstaking detail regarding each lawsuit filed. So, the Cornell study is based on solid data. The Manpower study relies on data collected by Jury Verdict Research. My experience with verdict research firms is that they rely on information regarding cases provided to it on an ad hoc basis on its own or from other sources. The information is still relevant when compared to prior years. But, JVR's data is probably not as complete as federal systemic data. So, the Cornell study is scientific, while the JVR study probably is not. It is fair to say that federal courts remain a very inhospitable place for discrimination claimants.

Discrimination claimants fare worse in federal court, according to a recent study. Federal discrimination lawsuits have dropped decreased dramatically since 2001. Federal judges appear to have a bias against discrimination claimants at both the trial and the appellate levels, according to this study.

EEOC Statistics Show Continued High Numbers of Charges

Tom Crane — Fri, 08 Jan 2010 10:45:14 -0600

EEOC statistics have been released. Total charges for FY 2009 were 93,277. That number is down slightly from FY 2008 when a total of 95,402 charges were filed. But, recall that prior to 2008, the EEOC had never received more than 90,000 charges. The previous highest number was 84,000 in one year. The high number of charges are almost certainly due to the down economy. People losing their jobs are always more upset. Too, in mass layoffs, many employers take that opportunity to get rid of persons who were perceived as marginal. Looking at the number of charges filed is helpful, since the EEOC is generally good at screening out cases lacking the minimal requirements to prove a case of discrimination.

Charges filed alleging national origin, religion, and disability reached record highs. Charges filed alleging age discrimination were the second highest ever.

Data show that the EEOC resolved 85,980 charges. But, that is rather meaningless. "Resolve" means everything from finding a violation and then reaching a settlement to simply issuing a right-to-sue letter. To its credit, the EEOC did receive $294 million, a record amount through administrative enforcement and mediation. Administrative enforcement and mediation refers to cases settled while the charges were still pending with the EEOC. They have vastly improved the quality of their mediation services, at least here in the San Antonio region.

The EEOC did reach a "merit resolution" in 17,428 charges. Merit resolution refers to charges which assigned fault and/or reached the conciliation stage (which also requires some finding of fault). So, out of 93,277 charges, only 17,428 resulted in any sort of finding. That amounts to 18%.

The EEOC filed 281 lawsuits last year. That means across the country, they filed 281 lawsuits. In my experience, they file very few here in San Antonio.

Employers Get Fewer Wins in Past Year

Tom Crane — Wed, 06 Jan 2010 10:18:31 -0600

According to a recent study by Manpower and Jury Verdict Research, employers won only 39% of jury cases in the past year, tied for the lowest percentage in this decade. The lowest win rate was 33% for age cases and the highest win rate for employers was disability cases with 52%. The median settlement amount was $90,000. But, before my current clients see this and go bonkers, I am sure that means there was some very large amounts raising that amount so high. Most employment cases settle for less than $20,000 in my experience.

Why is the win rate for employers lower this past year? Russ Cawyer advances various reasons, all of which make sense. With the downturn in the economy, many potential jury members are out of work. That sort of experience makes discrimination and employment issues more credible. Mr. Cawyer mentions that in two recent jury trials, many more potential jury members were out of work or had a close family member who was out of work. And, as he adds, in a down economy, many employers will take their chances at trial instead of trying to settle the case.

Russ Cawyer, a management side lawyer, sees this as part of a trend favoring employees over employers. Perhaps, but like everything, trends come in cycles.

Final Paycheck Due in Six Days in Texas

Tom Crane — Tue, 05 Jan 2010 09:21:05 -0600

Texas Workforce Commission is supposed to enforce the Texas statutes regarding wages. A statute is a law passed by the state legislature. TWC provides a summary of the Texas Payday Statute at: http://www.twc.state.tx.us/ui/lablaw/pdlsum.html. Many employees want to know when must an employer pay the last paycheck? Frequently, many employers withhold the last paycheck until Joe Employee turns in his tools, pays for a damaged rear view mirror, turns in her uniforms, or whatever.

But, the employer cannot do these things. An employer cannot hold the final paycheck until an employee turns in tools or whatever. The employer must pay the last paycheck within six days of the last day. Texas Labor Code Art. 61.014. But, this law has no real teeth. The employer can incur a criminal penalty for missing this deadline. But, few District Attorney’s would have the time to prosecute what they see as a relatively minor crime.