Texas Employment Law Blog

Texas Employment Law Blog

Employment Law and Discrimination Issues

Mandatory Arbitration: How American Employers Opt Out of the Justice System

Posted in HR Management, Legislation, Trial Practice & Litigation Issues

Mandatory forced arbitration is a nationwide problem in the employment context that needs to be addressed by lawmakers.  A recent study reported that roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise – even if they are bound by forced arbitration terms. And most Americans are unaware of the rights being taken away from them. Approximately two-thirds of those who have had an arbitration agreement enforced against them cannot remember seeing anything about forced arbitration in their Terms of Employment. This is because employers are not required to call arbitration language to employees’ attention in any particular way or provide them with any specific information about the true meaning of the often legalistic language contained in an arbitration policy, clause, or handbook provision. So, many employers simply hide the provision in their large employment handbook that employees may or may not be given a copy of and have employees sign a written acknowledgement of having read it along with the 50 or so other documents that they rush new hires through on their first day.

An excellent article came out this past week by Carmen Comsti, The Employee Rights Advocacy Institute‘s Paul H. Tobias Attorney Fellow, highlighting recent news stories of how employers are attempting to opt-out of complying with our nation’s worker protection laws. Comsti writes:

“Forced arbitration compels workers to give up their rights to go to court and a trial by jury. It is imposed on workers by their employers requiring them to resolve workplace disputes before they arise in private arbitration rather than in a public court. Forced arbitration is anathema to our public justice system because it occurs in secret, private tribunals in the absence of accompanying legal safeguards such as a written record of the arbitration proceedings, the right to appeal the arbitrator’s decision if the law is not applied correctly, or other guarantees that ensure a fair process. Workers often have no knowledge or understanding of forced arbitration provisions, but yet are required by employers to “agree” to it in order to get or keep a job. Forced arbitration reaches nearly every job sector in the country—-from retail workers and restaurant employees to uniformed servicemembers and medical professionals. At least 27 percent of America’s employers mandate their employees submit to forced arbitration, affecting more than 36 million people, or one-third of the non-union workforce. Despite the growing prevalence of forced arbitration, the injustices that workers suffer from it are only now being brought to the public’s attention thanks to recent articles in the press. The following are some examples.

The Raiderettes Take On The Oakland Raiders

The Oakland Raiderettes filed a lawsuit earlier this spring against the Oakland Raiders alleging that it routinely violated California labor laws. This was the first in a series of lawsuits initiated by current and former National Football League (NFL) cheerleaders challenging the NFL’s entrenched system of long hours, meager pay, and paternalistic work rules. In the Raiderettes’ case, the Raiders paid the cheerleaders $125 per home game but required them to participate in practices, rehearsals, meetings, workouts, public events, uniform fittings, and photo shoots without compensation. Their contracts also imposed fines and discipline for minor deviations in physical appearance, such as weight gain and improper hair color.

The Raiderettes, however, may never have their day in court because their contracts force them to arbitrate their workplace disputes—-believe it or not—-before NFL Commissioner Roger Goodell. Commentators have cast doubt on whether the Raiderettes will receive a fair hearing under the circumstances. A California state court will decide later this year if the contract violates basic legal requirements of fairness and consent or if the Raiderettes will be forced into arbitration.

Federal Court Raises Concerns About Uber’s Arbitration Clause Requiring Waiver Of Access To The Courts

In May, a federal court in California ordered Uber to change the wording of an arbitration clause in its contracts with drivers because it is potentially misleading and coercive. Uber drivers filed a lawsuit alleging the company cheated drivers out of their tips and misclassified them as independent contractors rather than employees. After Uber drivers filed similar lawsuits in Massachusetts and Illinois, but before the California case was filed, Uber surreptitiously changed its terms of service with its drivers by adding an arbitration provision requiring them to waive their right to participate in any lawsuit against the company pending in court. Recognizing Uber’s unscrupulous attempt to interfere with current and potential drivers’ access to the courts, the California federal court ordered Uber to send out corrective notices about the provision to Uber drivers. The federal court will consider the merits of the case once the drivers have been properly informed of their rights to participate in the lawsuit.

U.S. Servicemembers Forced To Arbitrate Workplace Claim

Forced arbitration also has been imposed on our nation’s uniformed servicemembers, such as Captain Nicole Mitchell who was discriminated against in the workplace because of her military service. A U.S. Air Force Reserve Officer, Captain Mitchell was deployed for military service every few weeks with the elite “Hurricane Hunters” aircrew to track tropical storm patterns and developments. When she was not fulfilling her military duties, Captain Mitchell worked as a top rated on-air meteorologist for The Weather Channel. After The Weather Channel was purchased by NBC Universal in 2008, new management demoted and later terminated Captain Mitchell for taking time off to perform her duties as a Hurricane Hunter. Captain Mitchell filed a lawsuit against NBC Universal and The Weather Channel in federal court for violation of her rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), but discovered that her employment contract contained a forced arbitration provision. The federal court enforced the forced arbitration clause and Captain Mitchell’s case was sent to arbitration in 2012. Since then, Captain Mitchell has been unable to secure employment as an on-air meteorologist and has been waiting for the arbitrator to hear her case.”


More: Read the Employee Rights Advocacy Institute’s  National Study of Public  Attitudes on Forced Arbitration

Supreme Court Opinion Emphasizes Importance of Jury Trials In Civil Cases

Posted in Trial Practice & Litigation Issues

The Robbie Tolan shooting incident took place in Bellaire, Texas, on December 31, 2008, when 10-year Bellaire police veteran, Jeffery Cotton, shot unarmed Robbie Tolan, son of famed baseball player, Bobby Tolan, in his parents’ driveway. Tolan sustained serious injuries in the shooting and charges were pressed against Cotton. On May 11, 2010 a jury reached a verdict of not guilty and Cotton was acquitted, much to the dismay of minority leaders and critics around the country who continue to cite the case as an example of racial profiling and institutional racism. Here is one Court’s recitation of the facts of what happened that evening:

At around 2:00 on the morning of December 31, 2008, John Edwards, a police officer, was on patrol in Bellaire, Texas, when he noticed a black Nissan sport utility vehicle turning quickly onto a residential street. The officer watched the vehicle park on the side of the street in front of a house. Two men exited: Tolan and his cousin, Anthony Cooper.

Edwards attempted to enter the license plate number of the vehicle into a computer in his squad car. But he keyed an incorrect character; instead of entering plate number 696BGK, he entered 695BGK. That incorrect number matched a stolen vehicle of the same color and make. This match caused the squad car’s computer to send an automatic message to other police units, informing them that Edwards had found a stolen vehicle.

Edwards exited his cruiser, drew his service pistol and ordered Tolan and Cooper to the ground. He accused Tolan and Cooper of having stolen the car. Cooper responded, “That’s not true.”  And Tolan explained, “That’s my car.”  Tolan then complied with the officer’s demand to lie face-down on the home’s front porch.

As it turned out, Tolan and Cooper were at the home where Tolan lived with his parents. Hearing the commotion, Tolan’s parents exited the front door in their pajamas. In an attempt to keep the misunderstanding from escalating into something more, Tolan’s father instructed Cooper to lie down, and instructed Tolan and Cooper to say nothing. Tolan and Cooper then remained facedown.

Edwards told Tolan’s parents that he believed Tolan and Cooper had stolen the vehicle. In response, Tolan’s father identified Tolan as his son, and Tolan’s mother explained that the vehicle belonged to the family and that no crime had been committed. Tolan’s father explained, with his hands in the air, “[T]his is my nephew. This is my son. We live here. This is my house.”  Tolan’s mother similarly offered, “[S]ir this is a big mistake. This car is not stolen. . . . That’s our car.”

While Tolan and Cooper continued to lie on the ground in silence, Edwards radioed for assistance. Shortly thereafter, Sergeant Jeffrey Cotton arrived on the scene and drew his pistol. Edwards told Cotton that Cooper and Tolan had exited a stolen vehicle. Tolan’s mother reiterated that she and her husband owned both the car Tolan had been driving and the home where these events were unfolding. Cotton then ordered her to stand against the family’s garage door. In response to Cotton’s order, To-lan’s mother asked, “[A]re you kidding me? We’ve lived her[e] 15 years. We’ve never had anything like this happen before.”

The parties disagree as to what happened next. Tolan’s mother and Cooper testified during Cotton’s criminal trial1 that Cotton grabbed her arm and slammed her against the garage door with such force that she fell to the ground.  Tolan similarly testified that Cotton pushed his mother against the garage door. In addition, Tolan offered testimony from his mother and photographic evidence to demonstrate that Cotton used enough force to leave bruises on her arms and back that lasted for days.  By contrast, Cotton testified in his deposition that when he was escorting the mother to the garage, she flipped her arm up and told him to get his hands off her.  He also testified that he did not know whether he left bruises but believed that he had not.

The parties also dispute the manner in which Tolan responded. Tolan testified in his deposition and during the criminal trial that upon seeing his mother being pushed, he rose to his knees. Edwards and Cotton testified that Tolan rose to his feet.

Both parties agree that Tolan then exclaimed, from roughly 15 to 20 feet away, “[G]et your fucking hands off my mom.”  The parties also agree that Cotton then drew his pistol and fired three shots at Tolan. Tolan and his mother testified that these shots came with no verbal warning. One of the bullets entered Tolan’s chest, collapsing his right lung and piercing his liver. While Tolan survived, he suffered a life-altering injury that disrupted his budding professional baseball career and causes him to experience pain on a daily basis.

A civil suit followed the criminal trial. This suit was dismissed by the court through a process called summary judgment. The Fifth Circuit Court of Appeals agreed holding that there was no evidence that the police officer violated a clearly established law (an element needed to overcome a police officers normal immunity to civil suits such as this one).

Note that in the summary judgment context, the Court is not supposed to weigh the evidence or decide who should probably win at trial. That’s the jury’s job. In the summary judgment context, the Plaintiff should win if there is any question as to an issue of fact in the case. In this case it is hard to understand how there could be no question as to the police officers possible violation of law given that his own county’s district attorney chose to criminally prosecute him for just such a violation. Nevertheless, the court found “no evidence” and dismissed the case.

Critics would argue that this is yet another instance of the court refusing to allow a case to go to the jury by usurping the legitimate role juries. Many practitioners have lamented this increasingly serious problem in the federal court system over the last few years.  This blog as discussed it recently here and here.

That’s where this case takes a surprising turn. Last week the U.S. Supreme Court vacated and effectively reversed the Fifth Circuit’s decision, sending the case back to the appellate court for reconsideration. The court’s per curium opinion (A “per curiam” decision is a decision delivered via an opinion issued in the name of the Court rather than specific judges.) stated that the lower court had failed to adhere to the fundamental principle that, at the summary judgment stage, every reasonable inference should be drawn in favor of the non-moving party (here the plaintiff).  More specifically, the Court stated:

[The] Fifth Circuit failed to adhere to the fundamental principle that, at the summary judgment stage, reasonable inferences should be drawn in favor of the non-moving party, the decision below is vacated and remanded so that the Fifth Circuit can determine whether, when the evidence offered by the petitioner — who was shot by the respondent, a police officer — is properly credited and factual inferences are reasonably drawn in his favor, the police officer’s actions violated clearly established law.


And while “this Court is not equipped to correct every perceived error coming from the lower federal courts,” Boag v. MacDougall 454 U. S. 364, 366 (1982) (O’Connor, J., concurring), we intervene here because the opinion below reflects a clear misapprehension of summary judgment standards in light of our precedents.

This is a very notable case because such action by the Supreme Court is highly unusual. The high court simply does not normally get involved to correct lower courts for simply “getting it wrong.” They reserve their opinions for cases in which a key issue of law needs to be interpreted, normally to mend a split in legal interpretation between the various lower courts.

For this reason I don’t think it is going too far out on a limb to opine that the Supreme Court was trying to make a point in this case regarding the direction of summary judgment rulings by lower courts throughout the country. For years, civil rights attorneys practicing employment law have been lamenting the practice of courts expanding the use of summary judgment rulings beyond their  intended role in the process and invading the province of the jury. More recently, academics and even federal judges have taken note of the problem, declaring that the practice is “gutting” anti-discrimination laws and quickly leading to the death of the jury trial for such cases.

So, while this decision may get little coverage in the normal or even the legal press, I think that may very well be the most important decision the Supreme Court issues this term. The importance of the jury trial in protecting individual Americans from powerful forces, whether they be government or corporate, cannot be overstated. John Adams said it this way:

The people choose a grand jury, to make inquiry and presentment of crimes. Twelve of these must agree in finding the bill. And the petit jury must try the same fact over again, and find the person guilty, before he can be punished. Innocence, therefore, is so well protected in this wise constitution, that no man can be punished till twenty-four of his neighbors have said upon oath that he is guilty. So it is also in the trial of causes between party and party [civil suits]. No man’s property or liberty can be taken from him till twelve men in his neighborhood have said upon oath, that by laws of his own making it ought to be taken away, that is, that the facts are such as to fall within such laws. What a satisfaction is it to reflect, that he can lie under the imputation of no guilt, be subjected to no punishment, lose none of his property, or the necessaries, conveniencies, or ornaments of life, which indulgent Providence has showered around him, but by the judgment of his peers, his equals, his neighbors, men who know him and to whom he is known, who have no end to serve by punishing him, who wish to find him innocent, if charged with a crime, and are indifferent on which side the truth lies, if he disputes with his neighbor!

Letter of John Adams to the Boston Evening Post.

Thomas Jefferson added “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

This opinion shows that even the U.S. Supreme Court has taken note of this issue. In my personal opinion, I fear that many federal judges have gotten so caught up in the minutia of hyper-technical summary judgment tests that they now fail to see the forest for the trees. The simple truth is that the letter of the law regarding summary judgment does not favor the granting of summary judgment motions in a high percentage of civil rights employment cases. Quite the opposite. The letter of the law states that summary judgment is a tool to be used sparingly and only to weed out the most meritless of cases. The default is always supposed to favor the resolution of factual disputes by a jury trial.

In Tolan, the country’s highest court has gone to a rather extraordinary length to make this point yet again.  Let’s hope the lower courts are listening.


White House Uses Executive Actions to Push Gender Equity Issues

Posted in Legislation, Sexual Discrimination

Faced with a Congress that seems to be determined to do little or nothing for the remainder of the year, the White House is attempting to do what it can using executive orders to push forward efforts to improve pay equity for women. This month, the President took two new executive actions to help combat pay discrimination and strengthen enforcement of equal pay laws:

First, the President is signing an Executive Order prohibiting federal contractors from retaliating against employees who choose to discuss their compensation. The Executive Order does not compel workers to discuss pay, nor does it require employers to publish or otherwise disseminate pay data – but it does provide a critical tool to encourage pay transparency, so workers have a potential way of discovering violations of equal pay laws and are able to seek appropriate remedies.

In addition, the President is signing a Presidential Memorandum instructing the Secretary of Labor to establish new regulations requiring federal contractors to submit to the Department of Labor summary data on compensation paid to their employees, including data by sex and race. The Department of Labor will use the data to encourage compliance with equal pay laws and to target enforcement more effectively by focusing efforts where there are discrepancies and reducing burdens on other employers.

This week, the Senate is considering the Paycheck Fairness Act, which, if passed, would help ensure the standards put forward by the executive order he is signing are applied to all employers covered by the Fair Labor Standards Act.

These are important steps to achieving pay fairness in this country. I encourage everyone to call your senator to voice your support for the Paycheck Fairness Act.


Case Update: New Arbitration Agreement Not Applicable to Previously-Filed Case

Posted in Overtime Law, Trial Practice & Litigation Issues

Russell v. Citigroup, Inc. (6th Cir., April 4, 2014)

In this case the company tried to retroactively apply a newly-signed arbitration agreement to a case after the case had already been filed. Not surprisingly, the court rejected this novel temporal approach:

From 2004 to 2009, Russell worked at Citicorp’s Florence, Kentucky call center. He had signed a standard contract to arbitrate any disputes with the company. The agreement covered individual claims but not class actions.

In 2012, Russell filed a class action against the company, claiming that the company did not pay employees for time spent logging into and out of their computers at the beginning and end of each workday. Citicorp did not seek arbitration.

In 2012, with the lawsuit still in progress, Russell applied to work again at Citicorp’s call center and was rehired. Citicorp had updated its arbitration contract to cover class claims as well as individual ones. Russell signed the new contract and began work in the call center. Russell did not consult with his lawyers before signing the new contract.About a month later, Citicorp’s outside attorneys learned that he had been rehired and sought to compel Russell to arbitrate the class action, which by then had begun discovery.

The district court held that the new arbitration agreement did not cover lawsuits commenced before the agreement was signed. The Sixth Circuit affirmed.  

Download the opinion here: Russell v. Citigroup, Inc.

Source: Justia.com

Car Dealership Pays over $2 Million to Settle Same-Sex Sexual Harassment Suit

Posted in Sexual Discrimination, Verdicts & Settlements

Pitre Inc., an Albuquerque car dealership, has agreed to settle a same-sex sexual harassment and retaliation lawsuit filed on behalf of over 50 workers for over $2 million dollars.

In the lawsuit, the employees charged a former lot manager, under the direction of the dealership’s general manager, with subjecting a class of men to egregious forms of sexual harassment, including shocking sexual comments, frequent solicitations for oral sex, and regular touching, grabbing, and biting of male workers on their buttocks and genitals. They also alleged that the manager retaliated against male employees who objected to the sexually hostile work environment. During the pendency of the lawsuit, the retaliatory actions of the Company raised such concern that a U.S. District Court judge granted a preliminary injunction  prohibiting the dealership and all of its agents from threatening or engaging in retaliatory actions against case participants. In case you were wondering — Yes, such an injunction is pretty unusual.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex, which includes harassment of individuals of the same sex. When an employer disciplines, terminates, or takes other punitive measures against an employee for objecting to workplace discrimination, the employer further violates Title VII’s anti-retaliation provision.

Here is a copy of the press release.


Profits Over People: Why Corporations Oppose Unions

Posted in Other Articles

After a period of declaring unions in America all but dead, corporate America and their lawyers seem to be increasingly concerned lately that employees may come to their senses and begin to organize themselves to protect their interests in the workplace. Two excellent corporate-side employment lawyers have recently posted articles discussing some examples of the best methods of avoiding collective bargaining with employees and unionization:

This follows recent events in which members of Congress engaged in political dirty tricks to thwart efforts to unionize a Tennessee VW plant. The amount of time, money and effort that corporations, their lawyers and politicians will expend to avoid having to negotiate with their employees as a group is simply staggering.

So why are large corporations and employers of retail and service workers like Target, Wal-Mart, Starbucks, Whole Foods, etc. so opposed to collective bargaining?  Simple. The reason is fear. These companies know that unions represent a sort of power for their workers that their workers will otherwise never have. That power translates to better working conditions and higher wages. That, they fear, may eat into a company’s profits. Profits over people – it’s just that simple.

But it shouldn’t be that way. Putting profits before people is short-sighted and hurts the economy. The essence of what labor unions do is to give workers a stronger voice so that they can get a fair share of the economic growth they help create. This has always been important to making the economy work for all Americans. One of the primary reasons why the great recession was worse than it should have been was that workers did not have the purchasing power to drive our consumer-based economy. In fact, even when times were relatively good, workers were getting squeezed. Income for the median working age household fell by about $2,000 between 2000 and 2007. That’s right, it FELL.

Union members in the United States earn significantly more than non-union workers. From 2004 to 2007, unionized workers’ wages were on average 11.3 percent higher than non-union workers with similar jobs. That means that, all else equal, workers that join a union will earn 11.3 percent more than their otherwise identical non-union counterparts.

According to Henry Blodget, Editor-in-Chief of Business Insider magazine, many companies “have become so obsessed with generating near-term profits that they are  paying their employees less, cutting capital investments, and under-investing in future growth.” This is bad for workers and, ultimately, bad for the entire economy. We live in a time of the highest corporate profits in history coupled with one of the highest unemployment rates in history. And we have the lowest wages in U.S. history as a percent of the total economy. It simply isn’t sustainable long-term.

We need to bring balance back to the U.S. economy by increasing the voice of employees in the workplace. The best way to do that is to support unionization.

Allegations of Pay Discrimination by Texas Attorney General Shine Light on Systemic Problem of Gender-Based Wage Disparity

Posted in Other Articles, Sexual Discrimination

Equal pay for women is in the spotlight of the Texas governor’s race, and figures from the Texas Attorney General’s office show most female assistant attorneys general make less on average than do men in the same job classification.

The San Antonio Express News has published an analysis of the agency’s pay statistics and found that of the top 20 highest-paid employees at the agency, just three are women. Of the 100 top positions, only 37 are held by women. The analysis indicates that the disparity cannot be accounted for simply by seeking a correlation between experience and pay among the assistant attorneys general.

Does this necessarily mean that the Attorney General is purposely discriminating against female lawyers in the agency? Possibly not. But it doesn served to shine a light on a  problem the affects employers all across the country – that being systemic gender discrimination against women based on old ways of thinking about gender in the workplace.

What is the Equal Pay Act?

In 1963, Congress passed the Equal Pay Act (“EPA” or the “Act”) as an amendment to the Fair Labor Standards Act, to “prohibit discrimination on account of sex in the payment of wages by employers.” Congress included within the text of the EPA a clear and concise policy statement and briefly described the problems it was intended to remedy. The clear statement of congressional intent and policy guiding the EPA’s enactment indicate the Congressional desire to fashion a broad remedial framework to protect employees from wage discrimination on the basis of sex. The Supreme Court has expressly recognized the view that the EPA must be broadly construed to achieve Congress’ goal of remedying sexual discrimination. Congress passed the EPA out of “concern for the weaker bargaining position of women” to provide a remedy to discriminatory wage structures that reflect “an ancient but outmoded belief that a man, because of his role in society, should be paid more than a woman.” It should be noted, however, that the EPA protects both men and women.

The EPA prohibits “employer[s] … [from] discriminat[ing] … on the basis of sex by paying wages to employees […] at a rate less than the rate [paid] to employees of the opposite sex […] for equal work on jobs [requiring] equal skill, effort, and responsibility, and which are performed under similar working conditions[.]” To establish a case under the EPA, an employee must show that:

  1. different wages are paid to employees of the opposite sex;
  2. the employees perform substantially equal work on jobs requiring equal skill, effort and responsibility; and
  3. the jobs are performed under similar working conditions.

The EPA provides that the employer may not pay lower wages to employees of one gender than it pays to employees of the other gender employees within the same establishment for equal work at jobs that require equal skill, effort and responsibility, and that are performed under similar working conditions.

It is important to note that the EPA does not contain any intent requirement within the statutory language. Liability under the EPA is established by meeting the three elements noted above, regardless of the intention of the employer. As such, the EPA imposes strict liability on employers who engage in wage discrimination on the basis of gender.

What to do if you believe you have been paid less due to your sex / gender:

An individual alleging a violation of the EPA may go directly to court and is not required to file an EEOC charge beforehand. The time limit for filing an EPA charge with the EEOC and the time limit for going to court are the same: within two years of the alleged unlawful compensation practice or, in the case of a willful violation, within three years. The filing of an EEOC charge under the EPA does not extend the time frame for going to court.

Important: If you believe that you are or have been discriminated against on the basis of your gender, you should consult an employment attorney immediately. The EPA contains a rigid two-year look back period. Any claim based on wages beyond that period may be lost so it is important that you file as soon as possible.


Related Posts:


Yes, Posting About Your Settlement on Facebook Probably Violates Your Confidentiality Agreement

Posted in Age Discrimination, Trial Practice & Litigation Issues

A story out this week emphasizes the importance of complying with confidentiality language found in your settlement agreement. A Florida teenager’s ill-advised Facebook post has cost her father the $150,000 he had won in a legal settlement.

In this case a daughter bragged on her Facebook page a few days after her father reached a settlement in his age discrimination suit against his former employer. She posted “Mama and Papa Snay won the case against Gulliver,” Snay wrote to her 1,200 Facebook friends. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

“Gulliver” refers to Gulliver Preparatory School, a Miami-area academy where her father was headmaster until officials decided in 2010 not to renew his contract. Snay, now 69, claimed Gulliver was discriminating against him. The parties settled in November 2011. The school agreed to pay Snay $150,000.00 to settle the case. As is the case in many settlement agreements, this one included a confidentiality agreement that required Snay to keep the deal’s terms private and not tell anyone of its existence. Snay, however, told his daughter immediately, saying he had settled and was pleased. He said in a later deposition that he felt he needed to tell her because she knew the case was in mediation and she had suffered “psychological scars” from her student days at the school.

His daughter, in turn, took to Facebook. The post was seen by current Gulliver students and alumni. The school’s lawyers heard about it. Four days after the settlement was reached they told the father the deal was off. Snay attempted to enforce the settlement in court but the court refused, stating “Snay violated the agreement by doing exactly what he had promised not to do,” the judge wrote. “His daughter then did precisely what the confidentiality agreement was designed to prevent.”

Confidentially agreements are an important part of most settlement agreements. You don’t have to agree to one but if you do, you better abide by it. Make sure you visit with your lawyer to understand exactly what your settlement agreement says so you know what you can and, perhaps more importantly, what you can’t say about your settlement.


Theoretically Related Posts:

• “Big Data” Could Create Big Discrimination Problems

• Court Rules Facebook “Like” is Protected Speech in Employment Retaliation Case

• Court Shoots Down Another Attempt at Facebook Fishing

Political Dirty Tricks Thwart Effort to Unionize Tennessee VW Plant

Posted in NLRB

Workers in Volkswagen’s Chattanooga, Tennessee plant rejected unionization by the UAW last week. The vote was surprising given that both the company and a majority of the plant’s workers had expressed support for the union in the days leading up to the vote.

The main reason for the last minute turn of the tide appears to have been dirty tricks and threats made by Republican politicians, including U.S. Senator Bob Corker.  VW itself did not oppose the union and appeared to be willing to simply recognize the union based on a “card check” (think of it as an informal election) in which the majority or workers indicated support for the move. German companies work much more closely with their workers’ unions in Germany. 

Unfortunately here in the U.S. politicians couldn’t allow for the unionization of a plant even if BOTH the workers AND the company wanted the arrangement.  In a massive campaign against the union leading up to the vote, Republican politicians threatened to withhold further tax incentives if the plant organized or if VW voluntarily recognized the union. Meanwhile D.C. conservative activist Grover Norquist and other outside groups placed anti-union billboards all over town and churned out UAW-bashing newspaper articles.

Then, on the first day of voting, U.S. Senator Bob Corker openly threatened that Volkswagen would expand its Tennessee plant only if workers voted against their own interests and rejected unionization at the facility. Corker’s statements appear to have been false as VW had openly welcomed the union. However, due to the speech protections given to senators in the U.S., there is likely no action that can be taken against the senator’s knowingly lying to defeat the vote.

The threats and intimidation apparently worked. Enough workers changed their previous votes and the union election failed 712 to 626. It will be another year (and in reality will likely be much longer) before any efforts to unionize the plant can begin again. In the meantime, plant workers can continue to enjoy the lower wages, substandard benefit packages, and lack of job protection for which non-union manufacturing plants in the U.S. are famous.