What is "Employment At Will"?

In meeting with employees, I often am asked about "Employment at Will". What does it mean? When does it apply? Is it the same as "Right to Work"? Here's the answer:

"Employment at Will" and "Right to Work" are two different concepts that can be confusing and are often mixed up by employees. But they are very different concepts.

"Employment at Will" means that an employee can be terminated at any time, for any reason or for no reason at all. If the employer decides to let you go, that's the end of your job--and you have very limited legal rights to fight your termination. If you are employed "at will", your employer does not need good cause to fire you. In every state but Montana (at last check), employers are free to adopt at-will employment policies, and virtually all do. In fact, unless your employer gives some clear indication that it will only fire employees for good cause, the law presumes that you are employed at will.

Even "at will" employees, however, cannot be terminated for an illegal reason.

Read more...

Preparing for Your Initial Consultation with an Employment Lawyer

Yesterday we discussed some basic tips to help you search for an employment attorney for your case.  So now you have an initial consultation set up with a lawyer who has been recommended to you by a trusted source or who you have found from doing your own research. How do you make sure you make the most of this initial meeting?

In a word: Preparation.

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. Employment lawyers get dozens of contacts per week from potential clients and must be very selective about the cases they take. The initial consultation is your opportunity to make sure the attorney is well informed about the facts of your case. It is also your best chance to show the attorney that you are someone he or she wants to work with over the months and/or years that your matter may be pending on the firm’s docket.

Here are some important tips to keep in mind as you prepare for the meeting:

• Take the meeting seriously and be prepared — Make sure you have good, clean copies (not originals) of any related documents with you when you arrive. Don’t expect the attorney to be your copy service and don’t leave your originals with the attorney.

• Bring a fact chronology — Employment cases are complicated and fact intensive. A lawyer will not be able to tell you whether he can help you unless he knows most of the details of your case. The best way to do this is to bring a simple fact chronology that outlines the factual timeline of your case. A simple “Date — Fact” format will work fine in most cases. If at all possible it should be typed and not hand-written.

• Be on time — Nothing says that you are not serious about your case like being late to your consultation. An attorney’s time literally is their money. Don’t waste it.

• Pay the requested consultation fee on time or have it ready when you walk in the door — If the matter is not important enough for a consultation fee then don’t make the appointment to begin with. But if you do make the appointment, don’t put the lawyer in the position of trying to collect a fee from you at your first meeting. It’s not the way to get off to a good start.

• Dress appropriately — How you dress communicates the level of seriousness you give the issue. You don't have to wear a suit. But showing up in a dirty T-shirt and flip-flops won't help convince the attorney that you are serious about your case. During the meeting the attorney is considering what a jury will think and whether they will take your testimony seriously. How you present yourself plays into this analysis.

• Don’t bring unexpected guests — Attorney-client communications are privileged. This privilege can be lost if others sit in on the meeting. While someone else can certainly accompany you to the lawyer’s office, don’t expect them or ask for them to come into the meeting with you unless you cleared it in advance with the attorney. Dealing with this issue at the time of the meeting uses up valuable meeting time while the lawyer tries to assess whether they should be allowed into the meeting or not. Also, keep in mind that the lawyer wants to hear YOUR story and is less interested in your husband/wife, girlfriend/boyfriend or mother’s version of the story.

• Don’t bring children — I love children. But they should not be brought to your attorney consultation. They are a distraction for you and the attorney and it can sometimes be difficult to discuss sensitive matters in front of them. Get a sitter or ask a friend or family member to watch them for you.

Following these steps should help you have a productive initial consultation and hopefully find a qualified attorney to handle your employment-related legal matter.

How to Hire An Employment Lawyer

So you need to hire an employment lawyer but you don’t know how to get started? This article is for you.

Hiring a lawyer to guide you through an employment-related dispute can be challenging. Unlike cases involving personal injury matters, there aren’t hundreds of employment lawyers running TV advertisements in an attempt to get you to “Call now!” Quite the opposite is true in fact.

Due to the complicated statutory nature of employment law practice, there are likely only a small handful of lawyers in even a relatively large city who are board certified to represent employees in employment-related disputes. The few who are qualified and have the years of experience you should be looking for will likely be extremely busy because there are so few of them. For this reason it is important that you do some research and get your own materials together before you start making calls.

To get you started, I've prepared a handy guide outlining some of the basic steps you need to take.

Step 1 - Do A Little Research Online. 

Before you pick up the phone and start making calls, pick up your mouse and start making clicks. Many good employment lawyers will have a website and/or a blog that will provide you with a lot of quality information about employment law issues. Take a look at what practice areas in which the lawyer claims he or she practices. You don’t want a jack-of-all-trades-master-of-none attorney for your case. You want someone who concentrates the majority of his/her practice on employment law issues. You could also search legal directory avvo.com to help you find local lawyers who represent employees. It isn’t a perfect system but it will give you a good list to start your research.

Step 2 - Check For Board Certification

Lawyers are not required to be Board Certified in employment law to practice it in Texas. Some states don’t even provide for board certifications. But in Texas, the State Bar of Texas does provide Board Certification to those lawyers who practice employment law for a sufficient period of time, provide recommendations from lawyers and judges who they have practiced with and who pass a lengthy examination process. You can learn more about Board Certification here.

Step 3 - Expect To Fill Out A Questionnaire And Pay A Fee For A Consultation

Many firms have developed questionnaires. These are not idle exercises. You must fill them out to help your lawyer understand your case so he can better help you. Plus, filling out these short (usually electronic) forms may save you money. Some attorneys use short electronic forms as an initial screening tool for the many potential client contacts they receive each day. Sometimes, the form indicates a simple question for which a quick answer can be provided. Other times, the type of case being described would be better handled by another lawyer who specializes in that specific niche — you can usually get that referral set up at no cost. Then, if the form indicates an issue on which a lawyer believes he or she can provide meaningful assistance, a full, in-person consultation can be scheduled.

Most attorneys charge a small consultation fee to review employment-related matters. Because employment law is very fact specific, an employment lawyer needs to know all the facts of your case before he or she can commit to representing you. This often takes time. If employment lawyers are not paid something for this, they cannot stay in business.

Step 4 - Prepare For Your Consultation

Once you have a consultation with an employment lawyer scheduled, it is important that you prepare to make the most of the time you will have with the lawyer. I have written an article discussing the initial consultation in more detail, including tips on what to bring and how to prepare for this important meeting.

Pregnancy Discrimination at the Supreme Court - Oral Argument in Young v. UPS

While it has been illegal to discriminate against pregnant workers for many years, this fact has been little help to many women who have been denied accommodation of their pregnancy by their employer. That's right, there has never been a clear decision from the Supreme Court on the issue of whether the Pregnancy Discrimination Act actually requires companies to provide reasonable accommodations to an employee based solely on her pregnancy. Many employers, including UPS, have refused women any help or accommodation due to pregnancy. Last week the Supreme Court finally heard argument on the issue.

Oral argument was held December 3, 2014.  The Pregnancy Discrimination Act ("PDA") provides that "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. §2000e(k). In this case the Court will decide whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are "similar in their ability or inability to work."  Below the district court and Fourth Circuit ruled in favor UPS.

Facts of the Case

Peggy Young was employed as a delivery driver for the United Parcel Service (UPS). In 2006, she requested a leave of absence in order to undergo in vitro fertilization. The procedure was successful and Young became pregnant. During her pregnancy, Young’s medical practitioners advised her to not lift more than twenty pounds while working. UPS’s employee policy requires their employees to be able to lift up to seventy pounds. Due to Young’s inability to fulfill this work requirement, as well as the fact that she had used all her available family/medical leave, UPS forced Young to take an extended, unpaid leave of absence. During this time she eventually lost her medical coverage. Young gave birth in April 2007 and resumed working at UPS thereafter.

Young sued UPS and claimed she had been the victim of gender- and disability-based discrimination under the Americans with Disabilities Act and the Pregnancy Discrimination Act. UPS moved for summary judgment and argued that Young could not show that UPS’s decision was based on her pregnancy or that she was treated differently than a similarly situated co-worker. Furthermore, UPS argued it had no obligation to offer Young accommodations under the Americans with Disabilities Act because Young’s pregnancy did not constitute a disability. The district court dismissed Young’s claim. The U.S. Court of Appeals for the Fourth Circuit affirmed.

Playing Field Changes while Case is Pending

While this case has been ongoing, the U.S. Equal Employment Opportunity Commission (EEOC) issued new pregnancy accommodation guidelines stating that employers should accommodate the physical restrictions of women with normal, uncomplicated pregnancies as if those women had protected disabilities and a growing number of states have passed laws mandating reasonable accommodations of pregnant workers.

Predictions

Most legal commentators (including this one) appear to believe the court should find in favor of pregnant employees in this case and require employers to provide reasonable accommodations to pregnant employees. The question then becomes a case-by-case analysis on the nature and degree of accommodation required. This is a similar analysis to what is required in other accommodation-related cases.

Related Links:

Link to Supreme Court Oral Argument in Case

Wage Theft Costs American Workers as Much as $50 Billion a Year

Wage theft is a nationwide epidemic that costs American workers as much as $50 billion a year, a new Economic Policy Institute report finds. In An Epidemic of Wage Theft Is Costing Workers Hundreds of Millions of Dollars a Year, EPI Vice President Ross Eisenbrey and EPI intern Brady Meixell examine incidences of wage theft—employers’ failure to pay workers money they are legally entitled to—across the country. The total amount of money recovered for the victims of wage theft who retained private lawyers or complained to federal or state agencies was at least $933 million in 2012, almost three times greater than all the money stolen in robberies that year. However, since most victims never report wage theft and never sue, the real cost of wage theft to workers is much greater, and could be closer to $50 billion a year.

“Wage theft affects far more people than more well-known crimes such as bank robberies, convenience store robberies, street and highway robberies, and gas station robberies combined, and can be absolutely devastating for workers living from paycheck to paycheck,” said Eisenbrey. “For low-wage workers, the wages lost from wage theft can total nearly 10 percent of their annual earnings.”

The authors also conducted a study of workers in low-wage industries in New York, Chicago, and Los Angeles and found that in any given week, two-thirds experienced at least one pay-related violation.  They estimate that the average loss per worker over the course of a year was $2,634, out of total earnings of $17,616. The total annual wage theft from front-line workers in low-wage industries in the three cities approached $3 billion. If these findings are generalizable to the rest of the U.S. low-wage workforce of 30 million, wage theft is costing workers more than $50 billion a year.

Read More:

Click here for a copy of the entire report.

Theoretically related posts:

Courts Make it More Difficult for Employees to Pursue Tip Theft by Employers

Wal-Mart Sued for Wage Theft

“Wage Theft”: The Trendy Phrase That May Not Mean What You Think It Means - From Daniel Schwartz's always excellent Connecticut Employment Law Blog

Wage Theft and Misclassification Report - Contains state by state grades.

Bad Bosses - You ARE the Weakest Link!

Robin Shea posted a great article yesterday titled “Weakest link” is no way to run your workplace. In it she discusses the problems related to bosses who like to stir the pot and keep employees feeling distrustful and uncertain. Not surprisingly, she thinks its a bad idea. She writes:

Manufactured workplace rivalry can cause morale to plummet and teamwork to become nonexistent. Which in turn results in high turnover, including the loss a lot of people you probably didn’t think were “weak links.”

From a legal standpoint, a hyper-competitive workplace environment dramatically increases the odds that the employer will become a defendant in a lawsuit, the subject of an EEOC charge or other administrative complaint, or the target of a union organizing campaign. It can also result in increased rates of workers’ comp and disability-related claims because employees are too stressed out to be able to face Lord of the Flies each day.

As someone who talks to 5-10 unhappy current or former employees a week, I can tell you that this is a big, big problem in the American workplace that is commonly overlooked by corporate HR departments. Too many HR departments seem to have a type of tunnel vision centered around whether they can determine if bad behavior is illegal or not. They miss the point.

If you have a boss who is so bad that your employees are seeking advices from a lawyer, you have a big problem - regardless of whether I end up telling them the issue is legally actionable or not.

Read Robin's excellent article here.

To learn more about workplace bullying, read this article by San Antonio employment lawyer Chris McKinney.

$185 Million Dollar Verdict Against AutoZone in Pregnancy Discrimination Case

A federal jury in San Diego has rendered a verdict against AutoZone for $872,000 in compensatory damages and $185 million in punitive damages after determining that AutoZone retaliated against against a manager for being pregnant, eventually resulting in her demotion and later termination.

According to the lawsuit, the philosophy was summed up by the vice president for western operations during a visit to a store staffed by a female manager and other women. He allegedly took the district manager aside and said: “What are we running here, a boutique? Get rid of these women,” the lawsuit states.

U-T San Diego reported the verdict.  The newspaper says it is believed to be one of the largest employment law verdicts for an individual in U.S. history.

AutoZone is an auto-parts retailer that operates about 4,000 stores across the U.S. and abroad.

Readers should keep in mind that a "verdict" is not the same as a "judgment". The verdict will likely be significantly reduced by the court's application of applicable statutory caps on damages. Even so the verdict is large enough that an appeal by the company is a virtual certainly.

Read more: U-T San Diego

Flexible Working Arrangements Aren't Just for Women

For years, conventional wisdom held that women far more than men took advantage of flexible working arrangements to balance work/life responsibilities. Now comes a new study revealing that male employees feel equally empowered to use programs that allow flexibility in how, when and where work happens.

The Working Mother Research Institute found that 77% of men have some degree of flexibility in their work schedules, and that 79% of those men feel comfortable using flex benefits.

The study, titled “How Men Flex: The Working Mother Report,” found that 59% of working dads would choose part-time work if they could still have a meaningful career. However, 36% of them believe their organization’s leaders would look down on men making that choice.

A different study, by the Society for Human Resource Management, found that about half of U.S. employers formally offer part-time and reduced-hours schedules. Flex-time—in which employees can vary their schedules as long as they’re at their workstations during core hours—is an option for 54% of employees. Telecommuting is available in 39% of organizations.

Click through to read the entire article.

Ebola in the Workplace Followup

The news about Ebola and its effect on the workplace continues. Employers are struggling to understand the potential workplace implications of the disease and how to deal with employees who may have been exposed or who are reluctant to travel to parts of the world that might expose them to Ebola.  I've posted on the topic here:

• McKinney Interview re Ebola on LXBN TV

• Fired Over Fears of Ebola: McKinney Interview on WOAI-TV

Some of my fellow law bloggers have been busy covering the situation:

• Ebola: Individual’s Freedoms v. Community Health Concerns – Who Wins?

• Ebola Matters of First Impression; Law Lags Behind Policy

• Podcast: Managing Ebola Concerns in the Workplace

• Seven Steps for Employers to Address the Ebola Threat

• Ebola in the Workplace – Practical Suggestions

• Ebola in the Workplace – The Law

Developing.

EEOC is Challenging Some Corporate Wellness Programs as Violating the ADA

Marc Herman, writing for the Connecticut Employment Law Blog:

"94% of employers with over 200 workers according to the EEOC, offer their employees wellness programs....'The EEOC contends that the biometric testing and health risk assessment [in some wellness programs] constituted “disability-related inquiries and medical examinations” that were not job-related and consistent with business necessity as defined by the Americans With Disabilities Act (ADA). These alleged actions and severe consequences for not providing prohibited information as part of its “wellness program” violate Title I of the ADA, which prohibits disability discrimination in employment, including making disability-related inquiries.'"

Remember, voluntary medical examinations as a part of a wellness program are fine. But if employees are penalized for not participating in the medical examinations, they are likely to be found to be involuntary.

Read Herman's entire article here.

Video Interview: Discussing Ebola-Related Terminations with LXBN TV

Following up on my recent post on the subject, I had the opportunity to speak with Colin O'Keefe of LXBN on employees being terminated over Ebola. In the brief video interview, I share what I've been hearing on these firings and offer a bit of guidance to employers and employees on dealing with Ebola concerns.

Fired Over Fears of Ebola: What you need to know.

Well, it has happened already. My firm is getting calls from employees who have been terminated or fear termination because their employers are afraid they may have contracted Ebola during recent trips to the African continent.

I was interviewed this week on WOAI-TV regarding this issue. Here's the video:

I think the most important points to take away on this issue are these:

• Employers should keep in the mind that the chances one of their employees actually has Ebola is incredibly low. Don't make decisions based on fear and ignorance.

• Employers should keep in mind that if an employee actually does have Ebola, that employee is likely protected from discharge by the Americans with Disabilities act. Employers have a duty to accommodate conditions such as this. In the case of Ebola, a short leave of absence is the obvious accommodation of choice. Whatever an employer does, it should be done thoughtfully and with the assistance of competent employment law counsel.

• Employees should understand that people's fears of Ebola right now are disproportionately high and in some cases completely irrational. If you suspect that your employer is afraid you may have contracted the disease because you recently traveled to Africa or were near someone who did, open a dialogue with your employer. Employers are forbidden under the ADA from asking you about your health without solid evidence that you have contracted the disease but employees have no such restriction. Let cool heads and dialogue be the rule, not the exception.

In the case of Ebola, let's not let fear of the disease become more of a problem than the disease itself.

You May Be More Biased Than You Think

I have spent many years fighting against intentional civil rights violations in the workplace. Workplace discrimination is a terrible thing. It destroys careers, harms families, and is bad for the economy. And most people, I truly believe, are against it.

But what science is now showing us is that even very good, well-meaning people can discriminate at an unconscious level. According to this science, you are doing it right now as you read this.

You're faced with around 11 million pieces of information at any given moment, according to Timothy Wilson, professor of psychology at the University of Virginia and author of the book Strangers to Ourselves: Discovering the Adaptive Unconscious. The brain can only process about 40 of those bits of information and so it creates shortcuts and uses past knowledge to make assumptions.

So how do we deal with this information overload? Our brains compensate by making assumptions (aka "stereotypes") for everything...and everyone one we encounter. In other words, we are guided in our decision-making not just by the objective data we received but also by what we expect to be true. This can be an especially challenging problem for those who are trying to make hiring decisions in an ethical and unbiased manner. The hardest part of this is that we don't feel or believe that we are allowing bias to color our perceptions...but it does anyway.

This issue effects every company across the country and it is a serious problem that can only be addressed by actively discussing it and taking active steps to acknowledge and eliminate our unconscious biases. This Fast Company article discusses the problem and some tactics that we can all use to combat it.  It's a good article and I commend it to your reading.

So if my biases are "unconscious" how can I do anything about them? After all, I don't even know I'm being biased right? Well, not exactly. We know you are being biased. We now know that we are all biased. So the remedy is to change the way we make decisions so that these unconscious biases are limited by the systems we design. Taking pictures, names, etc out of hiring materials so that initial hiring decisions (or interview lists) are made without knowledge of the candidates' demographic information is one simple example. Creating clear criteria for evaluating candidates before looking at their qualifications is another. More reliance on objective data and less reliance on your "gut" should be the goal.

The article discusses this in greater detail here. It is an important issue that I hope employers and HR specialists start to pay greater attention to.

Shell Oil and Related Company Pay Over $4 Million in Overtime Back Wages Following DOL Investigation

Shell Oil Co. and Motiva Enterprises LLC, which markets Shell gasoline and other products, have agreed to pay $4,470,764 in overtime back wages to 2,677 current and former chemical and refinery employees as a result of investigations by the U.S. Department of Labor that found violations of the Fair Labor Standards Act.

The department's Wage and Hour Division conducted investigations at eight Shell and Motiva facilities in Alabama, California, Louisiana, Texas and Washington, which found that the companies violated FLSA overtime provisions by not paying workers for the time spent at mandatory pre-shift meetings and failing to record the time spent at these meetings.

"Employers are legally required to pay workers for all hours worked," said U.S. Secretary of Labor Thomas E. Perez. "Whether in the international oil industry, as in this case, or a local family-run restaurant, the Labor Department is working to ensure that responsible employers do not experience a competitive disadvantage because they play by the rules."

The Wage and Hour Division's Houston District Office coordinated investigations with the Gulf Coast, New Orleans, San Francisco and Seattle District Offices to ensure nationwide compliance by Shell and Motiva. The findings revealed that those eight Shell Oil and Motiva refineries failed to pay workers for time spent attending mandatory pre-shift meetings. The companies required the workers to come to the meetings before the start of their 12-hour shift. Because the companies failed to consider time spent at mandatory pre-shift meetings as compensable, employees were not paid for all hours worked and did not receive all of the overtime pay of time and one-half their regular rate of pay for hours worked over 40 in a workweek. Additionally, the refineries did not keep accurate time records.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour. Workers who are not employed in agriculture and not otherwise exempt from overtime compensation are entitled to time and one-half their regular rates of pay for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees' wages, hours and other conditions of employment, and it prohibits employers from retaliating against employees who exercise their rights under the law.

Source: US Department of Labor

Ninth Circuit Holds FedEx Drivers are Employees, Not Independent Contractors

Many will be surprised to learn that for years FedEx has treated its delivery drivers as independent contractors rather than as normal employees.

Why you ask?

The answer is simple: Money.

FedEx avoided health care costs, workers compensation insurance payments, paid sick leave and vacation, retirement costs and more. FedEx made drivers pay for their  FedEx-branded trucks, FedEx uniforms, and those little hand-held scanners they use. And don’t forget fuel, insurance, tires, oil changes, maintenance, even workers’ compensation coverage.

That all adds up to a lot of money. And that’s why these decisions out of the Ninth Circuit Court of Appeals are such a big deal. A three-judge panel of the appeals court ruled that FedEx drivers were employees “as a matter of law” under both California and Oregon law and “FedEx’s labeling of the drivers as ‘independent contractors’ in its operating agreement did not conclusively make them so.”

While I do not practice in California or Oregon, the tests at issue in these decisions do not appear all that different from the tests most other states that I am familiar with use to determine employee vs. independent contractor issues. And that fact could spell big trouble for FedEx and other employers attempting this strategy.

These decisions are part of a slowly-increasing level of scrutiny from the courts towards corporate efforts to save money by characterizing front-line workers as independent contractors and thus avoid normal employment costs.  In another recent decision, the National Labor Relations Board’s general counsel issued an opiniondeciding to treat McDonald’s Corp. as a joint employer of its franchisees’ fast-food workers for the purposes of NLRB violation claims.

FedEx has already indicated that it plans to appeal these decisions.

Texas Loses Its Suit Against The EEOC Over Agency’s Criminal Background Check Guidance

The fight rages on with regard to the EEOC’s position on hiring checks based on criminal backgrounds. In a very high profile cases addressing this issue filed against the EEOC by the State of Texas, Judge Sam R. Cummings of the U.S. District Court for the Northern District of Texas issued a decision in State of Texas v. EEOC, Case No.5:13-CV-255 (N.D. Tex. Aug. 20, 2014), granting the EEOC’s motion to dismiss the state’s lawsuit.

The state’s lawsuit was based on the EEOC’s “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Under Title VII” and argued that the agency did not have the authority to issue the Guidance and that the EEOC’s position that Title VII trumps conflicting state laws violates Texas’ state sovereignty. Judge Cummings rejected the State’s arguments in this first-of-its-kind attack on the EEOC’s authority.

It should be noted that the state went to some lengths to file the case in such a way as to have it come before Judge Cummings, presumably because the state’s legal team believed he would be sympathetic to their argument. His dismissal of the action at a very early stage of the litigation should, therefore, send a strong signal as to how federal judges will likely view suits of this nature against the EEOC.

Source: Seyfarth Shaw’s EEOC Countdown Blog

President Obama Signs Fair Pay And Safe Workplaces Executive Order

President Barack Obama on July 31, 2014 signed the Fair Pay and Safe Workplaces Executive Order, continuing with the “year of action” to move forward with authorized and necessary reforms to labor and employment laws despite Congressional gridlock. Since his State of the Union pledge, the President has signed several executive orders impacting federal contractors that will raise the minimum wage, ban discrimination against LGBT workers, and prohibit retaliation for discussing compensation.

The Fair Pay Executive Order requires prospective federal contractors to disclose labor law violations and will give federal agencies more guidance on how to consider such breaches when awarding federal contracts. Significantly, the Executive Order extends the Franken Amendment to companies with federal contracts (not just defense contractors) over $1 million, prohibiting them from requiring their employees to enter into pre-dispute arbitration “agreements” for disputes arising out of Title VII of the Civil Rights Act of 1964 or from torts related to sexual assault or harassment (except when valid contracts already exist).

The Franken Amendment, first enacted in 2009, bans defense contractors receiving federal contracts over $1 million from forcing their employees to arbitrate the same types of claims. The Executive Order builds on a policy already passed by Congress and successfully implemented by the Department of Defense, the largest federal contracting agency, and will help improve contractors’ compliance with labor laws. The White House fact sheet on the Executive Order can be found at www.whitehouse.gov.

The National Employment Lawyers Association and its Fair Arbitration Now coalition partners issued a statement praising the President’s action, urging Congress to ban forced arbitration for all employment disputes by enacting the Arbitration Fairness Act (AFA, H.R. 1844/S. 878).

Wilson v. Cox – DC Circuit Denies Summary Judgment and Emphasizes Importance of Jury

Courts sometimes get confused about who in the court system is supposed to decide whether an adverse employment decision was taken because of the employee’s protected class (age, race, gender, etc). That decision belongs to a jury. Let’s say that again because it is something that has been increasingly forgotten by some judges: That decision belongs to a jury.

Wilson v. Cox, No. 12-5070 (D.C. Cir. June 3, 2014) shows that some courts of appeals are starting to push back on this trend.  In Wilson, the Court makes the point that even if the employer might have had a very good and non-discriminatory reason for eliminating a position, when the principal decision maker also makes a statement to the terminated employee that “you didn’t come here to work, you came here to retire,” that comment, standing alone, is enough to require a jury – not the judge – to determine whether the termination was due to age discrimination or not.  The Court explained:

“While Cox in that statement expressed a general concern about a perceived tendency of older guards to fall asleep, he testified that he had heard about only one such incident. Additionally, the chief of resident services testified that he had never heard any reports about any guard sleeping on the job. Even if Cox in fact knew of one instance in which a guard fell asleep on the job, a statement indicating a generalized concern about older guards as a group, based on one incident alone, is suggestive of impermissible, inaccurate stereotyping. A reasonable factfinder could conclude that Cox attributed sleepiness to all older guards as a class and terminated the resident employee program on that discriminatory basis.”

Does this mean the plaintiff employee will necessarily win at trial? Nope. That’s not the point. The point is that a jury needs to hear the case and decide the facts, not the judge.

The so-called “Texas Miracle” is actually a horror story for Texas Employees

Texas politicians like to take credit for the so-called “Texas miracle”. They claim the states relatively stable economy has been made possible by their zealous opposition to “over-regulation, greedy trial lawyers and profligate government spending”. Researchers are finding, however, that this so-called “miracle” has been a horror story for many Texas Workers.

A report this week takes a look at a dismal situation that state leaders have rarely mentioned – the grim side of the workplace: The State of Teas has a record of high worker fatalities and weak benefits. In fact, Texas has led the nation in worker fatalities for seven of the last 10 years, and when Texans get hurt or killed on the job, they have some of the weakest protections and hardest-to-obtain benefits in the country. The New York Times reports:

Texas is the only state that does not require private employers to carry workers’ compensation insurance or a private equivalent, so more than 500,000 workers — about 6 percent of the work force — receive no occupational benefits if they are injured on the job. On-the-job injuries can leave them unable to work, and with little recourse.

More than a million Texans are covered by private occupational insurance from their employers. Those plans are not regulated by the state but are often written to sharply limit the benefits, legal rights and medical options of workers.

Companies that carry workers’ compensation are given immunity from employee negligence lawsuits. While employers offering private compensation insurance are not protected from such lawsuits, many limit their legal exposure through the fine print of private occupational policies that employees accept when they are hired.

“Negligence liability can be contained by mandatory arbitration,” boasts one pro-industry study, conducted by claims processing company Sedgwick.

A 1998 Texas Supreme Court ruling, The Texas Mexican Railway Co. v. Lawrence P. Bouchet, also cleared the way for employers that do not carry workers’ compensation to fire injured workers without fearing a state retaliatory firing lawsuit. The decision was written by Greg Abbott, then a justice on the court and now the Republican attorney general and a candidate for Texas governor.

It is still illegal for employers in the workers’ comp system to retaliate against a worker for pursuing an injury claim, but the Bouchet ruling removed that prohibition for employers that do not carry the state-regulated coverage.

I now see an increasingly large number of employees who come through my office who have been injured on the job and can't get benefits or terminated for reporting an injury, or both and I simply cannot do anything for them because Texas law simply doesn't protect them.  The message to Texas employees is clear: if you get hurt on the job in this state nobody cares and no one will help you. And it looks like it will stay that way as long as the governor, the attorney general, the commissioner of the Texas Workers Compensation Commission and many in the legislature remain in the pocket of big business.

More: You can read the entire New York Times report here.

Non-Competes Are Out of Control

A recent New York Times article discusses the fact that employers are feeling increasingly free to abuse non-competes and force all types of employees, from camp counselors to hairdressers, to agree to them in order to keep their jobs. The article notes:

Noncompete clauses are now appearing in far-ranging fields beyond the worlds of technology, sales and corporations with tightly held secrets, where the curbs have traditionally been used. From event planners to chefs to investment fund managers to yoga instructors, employees are increasingly required to sign agreements that prohibit them from working for a company’s rivals.

The United States has a patchwork of rules on noncompetes. Only California and North Dakota ban them, while states like Texas and Florida place few limits on them. When these cases wind up in court, judges often cut back the time restraints if they’re viewed as unreasonable, such as lasting five years or longer.

As noted in the article and by Rob Radcliff in his blog post on the subject this week, Texas employers have great leeway in how they use noncompete agreements. As a result, noncompete abuse has come to be seen as just a normal business practice in the state.  Radcliff writes:

The reason behind non-competes appearing in more industries and occupations is because there is no downside for an employer to insist on such a covenant.  First off, a Texas employer can include and insist on a non-compete or non-solicit and then choose not to enforce it.  So the employer gets the benefit of intimidating or at least making an employee think twice about moving to a competitor but then never sue.  The employer could also send the former employee and their new employer some type of demand letter letter and force some type of dialogue or resolution.  Basically, the employer can us the threat of enforcing the non-compete without having a court every construe its terms or determine whether it is actually enforceable.

Why don’t more employees challenge non-compete in court?  The reason is simple – $$$$$.  Most employees don’t want to and can’t fund litigation to find out if there non-compete is enforceable.

Unfortunately what we have seen in Texas is that noncompetes have become the tool of choice for employers to attempt to restrict fair competition and suppress employee mobility. But Texas isn't alone in this regard and now corporate overreaching is starting to create a backlash among the public and state legislatures in many states.  California and North Dakota already ban noncompetes altogether. Reform efforts are currently underway to ban or restrict the abuse of noncompetes in several states, including Oregon, Colorado, and Massachusetts. (We recently wrote about the Massachusetts effort here.)

I, for one, support this trend and hope that all states move to ban the fundamentally un-American practice of requiring an employee to give up his or her right to work in the future in return for an at-will job. At the very least they should be scaled back to apply only to the highest level of employees or those employees who truly have access to secret recipes or true trade secrets (no your rolodex does not qualify).  Current they are (at least in Texas) out of control and damaging to both employees and to businesses’ ability to find quality employees in many fields.