Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

The Austin American Statesman is reporting today that the lure of $555 million in federal stimulus money for additional unemployment insurance has Texas legislators mulling whether to expand unemployment benefits to more workers.

To get the stimulus money, Texas would have to implement some key changes to state law — including modifying some eligibility requirements to include tens of thousands of low-wage workers. Such changes have been considered but not enacted in previous sessions.

"Unemployment is rising in Texas — the state unemployment rate was 6 percent in December, up from 4.2 percent a year ago. Benefits paid last week were more than double those paid the same time last year.

More laid-off workers also means that the trust fund that pays benefits is being depleted. The Texas Workforce Commission has projected a $750 million deficit that will require the commission next fall to raise taxes on employers and borrow money to refill the fund.

The federal money could lessen the need for new taxes on business, said state Rep. Mark Strama, D-Austin, who is chairman of the Technology, Economic Development and Workforce Committee.

'Failure to adopt the policy changes ... would result in a higher burden on business taxpayers in the immediate and near term during the recession' than would expanding the benefits...."

Getting any of the federal money requires Texas to alter the work period used to determine unemployment eligibility and benefits to a worker's four most recent quarters of employment. The article states that twenty-one other states already use this method.

The current Texas system does not consider the most recent quarter of earnings and instead uses the previous four quarters. Advocates for low income workers argue that creates an artificial time frame that particularly affects low-wage workers who go in and out of the work force.

Read the entire article here.

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The Los Angeles Daily Journal is reporting that President Obama has selected Thomas Saenz to head the civil rights division at the Department of Justice.

Saenz, 42, the former vice president of litigation for the Mexican American Legal Defense and Educational Fund in Los Angeles, is currently serving as counsel to Los Angeles Mayor Antonio Villaraigosa.

As yet, this is not confirmed by anyone at DOJ. 

Hat Tip: WSJ Law Blog

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The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court

The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.

"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."

This is certainly not news to those of us that work in the employment law trenches day in and day out.  Employment law is a different animal than most other types of cases that courts have to deal with.  Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken.  This has led to some pretty tortured legal tests and summary judgment standards across the country.  And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases.  I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases. 

The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore.  I think this may be going overboard a bit.  Employment cases are certainly not for the faint of heart but they are winnable. 

One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists.  This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal. 

Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law.  Employment cases are nothing like personal injury cases.  In my opinion, this is not an area of the law where lawyers should "dabble."  The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner. 

Source: WSJ Blog

Hat Tip: Ross Runkel

Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case.  Watch for it.

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Amid the many issues of taxes and spending in the economic stimulus bill, you may have missed that it contains Section 1553, which is full of new protections for whistleblowers who work for state and local governments or who work for private contractors receiving monies under the bill.

The idea behind the provision is that whistleblower protections will improve accountability and transparency in the way the public's monies are spent. And there is support for this proposition.  According to a recent article by the National Employment Lawyers' Association, PriceWaterhouseCoopers recently surveyed more than 5,000 corporations worldwide and found that whistleblowers, by far, were the most effective means for the initial detection of corporate fraud, besting internal auditors and law enforcement. Additionally, the U.S. Department of Justice recently reported that whistleblowers were responsible for returning over $1 billion to the U.S. Treasury in 2008 alone.

Here are some of the provisions in the bill designed to ensure protections from reprisal when employees blow the whistle on government and corporate wrongdoing:

• Protected disclosures include those "made in the ordinary course of an employee's duties" to any of a long list of officials, including to Members of Congress.
• After exhaustion of administrative remedies or 210 days from the filing of a complaint, a de novo trial in federal district court to a jury is available.
• Compensatory damages, as well as economic damages and injunctive relief, are authorized.
• A showing that a disclosure was "a contributing factor" to the reprisal - including a showing by circumstantial evidence - is sufficient proof unless the employer shows "by clear and convincing evidence" that it would have taken the same action anyway.
• Pre-dispute arbitration clauses are explicitly made unenforceable as to these disputes, with the exception of disputes arising under a collective bargaining agreement.

The one glaring absence from the bill is the lack of any protection for federal employees.  Obviously, federal employees are uniquely positioned to observe and report on funds that are mishandled. In my opinion, it doesn't make any sense to protect the employees of recipients of stimulus spending, while not doing so for the federal employees who oversee that spending.

If you are looking for a copy of the entire stimulus bill, you can currently find it here.  

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One of my favorite employment law bloggers, Jay Shepherd, over at the Gruntled Employees Blog had a great post this past week on the "Eight Ways to Lose a Noncompete Case."  Here are his 8 most common ways companies usually LOSE noncompete cases: 

1. Putting too much faith in the belief that the court will enforce the language of the noncompete agreement as written.
2. Trying to enforce a noncompete against employees who really don't possess any confidential information or customer relationships.
3. Drafting the noncompete too broadly.
4. Focusing only on geography, duration, and scope of the noncompete rather than on the existence of protectable interests.
5. Waiting too long to file.
6. Asking for an injunction before you've developed enough evidence.
7. Filing in the wrong jurisdiction.
8. Focusing on the law instead of on the story of the case.

For details on each of these common mistakes, head on over to Jay's blog. 

His bottom line: If your client's wearing the white hat, and your agreement is narrowly drafted, and your secrets or customer relationships are in imminent peril, then you've got a fighting chance of winning. Otherwise, wave goodbye to the former employee and get back to work."

Well said. 

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