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

This blog's humble author is quoted in a Law360 story today about the dubious distinction Texas has as the state responsible for more EEOC Charge filings than any other state:

"More federal workplace discrimination charges were filed in Texas than in any other state in 2011, with 10 percent of all charges nationwide lodged there, according to state-by-state data released by the U.S. Equal Employment Opportunity Commission on Monday.

The EEOC received a record 99,947 charges of discrimination during the 2011 fiscal year, which ended Sept. 30, and of those, 9,952 charges were brought in Texas, the agency said.

* * * * 

While the sheer size of Texas' population is most likely a factor in the state's position as the one with the most charges, it is not the only factor, attorneys say. Population size alone can't account for why Texas' number would trump that of another populous state like California, attorneys told Law360.

“Many states like California have a robust state-level agency that provides protections for workers, but in Texas the agency provides very little, so more of that work has to be shouldered by the federal government rather than the state,” said San Antonio-based attorney Christopher J. McKinney of The McKinney Law Firm PC, who represents employees and select employers.

Management-side attorney Ron Chapman Jr. of Ogletree Deakins Nash Smoak & Stewart PC agreed that the state agencies' activity level likely accounted for the number of charges being higher in Texas than in California. ..."

 Read the entire story at Law360.

The statistics really are quite damning for Texas. Texas accounted for a full 10% of all national EEOC charge filings, and 15% of the country’s religion and national origin charges. That's pretty deplorable. 

Followup: 

Link to the EEOC Chart of Charge Filings by State

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A group of wait staff employees recently filed a lawsuit against Texas Roadhouse, Inc., alleging that it had violated Massachusetts Tips Law and Massachusetts Minimum Wage Law. Ultimately, Texas Roadhouse agreed to settle the putative class action suit for $5 million.

Under Massachusetts Tips Law, only wait staff employees, service employees, or service bartenders are permitted to participate in a tip pool when the tips are used to fulfill minimum wage requirements. Massachusetts law allows an employer to use tips to, in part, fulfill minimum wage requirements for employees who receive at least $20 per month in tips. An employer may pay its employees $2.63 plus tips when the total amount paid is equal to or greater than the state’s $8.00 minimum wage requirement.

In the lawsuit, Crenshaw, et. al, v. Texas Roadhouse, Inc., the plaintiffs alleged that Texas Roadhouse improperly distributed pooled tips to employees who were not wait staff employees, service employees, or service bartenders. As a result of Texas Roadhouse’s alleged improper distribution of pooled tips, the plaintiffs claimed that they were paid less than minimum wage. The plaintiffs argued that because employees other than those who regularly and customarily received tips participated in the tip pool, Texas Roadhouse improperly claimed the tips toward the minimum wage.

 Previous: Age Discrimination: EEOC Sues Texas Roadhouse

Learn more about overtime and other types of wage and hour claims here.

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Houston appellate lawyer Ruth Piller filed a complaint with the Equal Employment Opportunity Commission against her former employer, Houston's Hays, McConn, Rice & Pickering, where she worked for nine years.

In the EEOC complaint, Piller alleges the firm discriminated against her on the basis of her gender and her neurological disorder-related disability; subjected her to a "sexually hostile work environment"; and retaliated against her. Specifically, Piller alleges the firm terminated her in October 2011 and failed to accommodate her disability; members of the firm's management, led by shareholder Staton M. Childers, harassed her with emails that included Photoshopped images of Piller's face on a naked body covered with sushi and on a body in a men's room holding a tape measure as an unidentified man uses a urinal. 

Her complaint reads in part:

"Hays McConn, through its male management committee, instituted, nurtured, and encouraged a culture among its male attorneys of exposing female partners and associates alike to a systematic, long-term, sexually hostile, gender degrading culture designed to remind and enforce the idea among its female lawyers that Hays, McConn is a men's club and the women are second-class citizens," 

Read the complaint here.

Read the full article at Law.com.

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CBS News reports that we may have "a new leader in the Boss From Hell Derby."  A Long Island woman has filed papers claiming she was fired after donating a kidney for her boss.

Last August, according to papers filed with the New York State Division of Human Rights, Deborah Stevens was working as an assistant to an executive at the Atlantic Automotive Group, which owns and operates car dealerships on Long Island. Her boss, Jaqueline Brucia, needed a new kidney.
 

You can read her complaint here.

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Patrick Danner of the Express News is covering this story involving a Medal of Honor winner who has brought suit against his former employer, alleging the employer defamed him and interfered with his ability to seek gainful employment.

 

A lawsuit brought by a U.S. Marine awarded the Medal of Honor against his former employer underscores the treacherous ground companies must navigate if they reveal too much about the circumstances surrounding an ex-employee's employment or termination.

 

Lawyers generally advise companies to say very little about ex-employees, otherwise those companies risk getting ensnared in costly and time-consuming litigation.

 

“In a lot of cases, saying something like (why someone was a bad employee) might be legal and you might be able to beat the rap, but you can't beat the ride. You could still get sued,” said Chris McKinney, a San Antonio lawyer who primarily represents individuals in employment disputes.

 

As the article details, proving that an employer is black-balling an employee by giving out false and defamatory information about you can be extremely difficult.  Before you call a lawyer, however, keep in mind that it is perfectly legal for an employer to say not nice things about you to a prospective employer . . . as long as the statements are fact-based and TRUE.  

There are third-party providers who can attempt to check what type of references you are getting (a lawyer cannot do this for you).  These usually run between $100-$200 and can give you some piece of mind if you are concerned what type of reference you might get from your last boss.  

If you have a serious indication that your past employer is making false, defamatory statements about you that are harming your ability to get hired, then you definitely should consult with an employment lawyer.  There may be steps short of litigation that will resolve the issue.    

Read the entire story.

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A technology Web site, PhoneDog.com, and one of its former chief editors are duking it out in a legal battle that could impact anyone who tweets from work.

Employee ("Noah Kravitz") is suing PhoneDog over his employment contract.  The employer has counter-sued - and here is the interesting part - claiming that Kravitz personal Twitter handle "PhoneDog-Noah" actually belongs to the company and that Kravitz essentially stole it by not turning it over to the company when he left their employment.

According to this article in SlashGear, the company values the Twitter followers at $2.50 a pop - that's $370,000 per year for the roughly 17,000 followers the account currently has.  According to the article, Kravitz reports that the company did not ask him to create the account; he did it on his own and posted both work-related and personal tweets to it.

Clearly, the employer's claim on the account is murky at best.  But this cautionary tale should give pause to any employee that posts to Twitter regarding issues that are in some way related to his/her work.  Perhaps it would be best not to include a specific reference to your employer in you Twitter handle, at the very least.

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Four months after the Supreme Court through out their national class-action lawsuit, lawyers representing the many, many, many women who claim that Wal-Mart Stores has discriminated against them filed a new lawsuit last week.  The suit seeks to make its way past the some of the obstacles set in the women's path by the Supreme Court by narrowing their claims to the California stores of the retail chain.

See our previous coverage of the Supreme Court's opinion throwing the women's claims out here.

The original case involved class of approximately 1.5 million women.  The Supreme Court through the case out largely on the argument that such a large group of women could not be shown to have enough in common with their claims to make a class action appropriate.  The class in the new 2.0 lawsuit is limited to approximately 90,000 women.  The Supreme Court did not rule on the merits of the case, nor did it preclude class actions consistent with its new guidelines and standards.  

One of the Lead lawyers representing the women, Brad Seligman, said

“We’re back. This case and the fight for justice for the women of Wal-Mart are not over. The complaint filed against California Wal-Mart is well within Supreme Court guidelines and we are determined to see that California Wal-Mart women employees who have been waiting up to 11 years for justice finally get their day in court.”

Class counsel expect to file additional cases around the country in the coming months. Information about filing claims can be found at www.walmartclass.com.

Named California Plaintiffs are current Wal-Mart Stores, Inc., employees Betty Dukes, a 17-year employee who works at a cashier/greeter in a Contra Costa County Wal-Mart, and Christine Kwapnoski, a 25-year employee who works as an assistant manager in a Contra Costa County Sam’s Club, a division of Wal-Mart.  Ms. Dukes was the lead plaintiff in the original 1.0 Wal-Mart class action case as well.

Related Links:

• Lawsuit Complaint
• New York Times Article Regarding the Filing
• Press Release from lead counsel firm, The Impact Fund
• Profiles of the Representative Plaintiffs

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The EEOC has filed a federal lawsuit, charging Universal Toyota with age discrimination, claiming it refused to allow salespeople older than 40 to sell Scions — a vehicle typically sold to younger drivers. Universal Toyota is part of San Antonio billionaire Red McCombs' dealership chain.  

 In the lawsuit, the EEOC seeks unspecified back wages, including any potential commissions and bonuses, on behalf of at least four former salespeople who allegedly weren't allowed to sell Scions.

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   According to a lawsuit filed last week by the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar). Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

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We get a lot wrong in our media-transfixed culture, where a wry quip and populist outrage almost always trump any understanding of complicated facts. But rarely do we get someone as wrong as we got Stella Liebeck.

 - Hank Stuever - Washington Post

The Documentary Hot Coffee premiers this week on HBO.  Hot Coffee is a documentary about the tort “reform” industry. The movie, which debuted at the Sundance Film Festival, included much about the McDonald’s hot coffee case where the late Stella Liebeck was scalded from the brew. I would tell you more about the case, except that you already know the story.....or perhaps you only think you know the story.  

Hot Coffee examines the case and several other cases as well, and does a really good job of exposing how corporate america has spent billions to trick the American people into believing that the court system is evil and that anyone who brings a legal claim is looking for "jackpot justice."  

I encourage you to watch the movie and then do your own thinking on the issue.  It is important that we start seriously considering this issue because our court system and our freedoms are being taken right out from under us and most people don't even know it.

Here is the trailer:

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The U.S. Department of Labor today filed a lawsuit against the Texas Department of Family and Protective Services' Child Protective Services Division in Austin for failing to pay 800 current and former investigators and case workers overtime compensation as required by the Fair Labor Standards Act ("FLSA"). The suit seeks back wages of more than $1 million, plus liquidated damages.

The complaint was filed in the U.S. District Court of the Western District of Texas, Austin Division. After an in-depth investigation into CPS' practices statewide, the department's Wage and Hour Division determined that the employees were working "off the clock" rather than compensated for all hours worked. Additionally, supervisors were instructing employees not to record all of their hours worked. Further, required record keeping was not maintained.

The investigation by the Wage and Hour Division's San Antonio office, covering the three-year period from June 2008 to the present, found that CPS willfully violated the FLSA by failing to pay employees for all hours worked over 40 in a week.  In 2000, the Labor Department filed a similar lawsuit against another Texas state agency.  That suit resulted in the state having to cough up $2 million to workers who had been shorted.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers must also maintain accurate time and payroll records.

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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 The cross-street of social media and the workplace continues to complicate the relationship between employers and workers.  This week the government has filed a fascinating case under the National Labor Relations Act ("NLRA") alleging that an employer illegally terminated an employee for posting negative comments about her supervisor on the Facebook social media site.

To my knowledge, this is the first time the NLRB (or any other agency for that matter) has taken such a position in court.  The Board's position is that an employee's activity of discussing the workplace online is protected "concerted" activity under the NLRA.  Generally, the NLRA forbids employers from retaliating against employees (whether unionized or not) for discussing working conditions.  The Board has taken the position that it makes no difference whether the discussion is around the traditional water cooler or around the new digital water cooler that is social media - protected activity is protected activity.  

The NLRB's position would seem to call into questions many companies' current social media policies, which forbid making negative postings about the employer on the internet. Arguably such policies are now illegal under the NLRB's interpretation of applicable law.  And remember -- this applies to all employers, whether unionized or not.

This will be an interesting case to watch.  An administrative law judge is scheduled to begin hearing the case on Jan. 25.  The material I have read about this case indicates that the Facebook post was responded to by several co-workers who were the employee's Facebook "friends".  I think this likely bolsters her position considerably.  A much more difficult question would be a situation in which an employee makes such a post but has no co-workers as Facebook friends or has co-workers as friends but cannot establish that any of them saw or were otherwise aware of the posting.

Source: New York Times Article

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Here are some of the most interesting employment law related articles and blog entries I came across in the last seven days. 

• ADA Amendments redefine cancer as a disability.
  
  • Ohio Employer's Law Blog - Jon Hyman writes: "I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that 'an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.'"
    

• Hurd, HP, and Inevitable Disclosure
  
  • Smooth Transitions Blog - Rob Radcliff writes about the recent suit filed by HP against its former CEO, Mark Hurd, asserting that he cannot go to work for competitor Oracle. HP essentially claims that it is impossible for Hurd to take the job without breaching his contract with HP and without missapropriating HP's trade secrets. Radcliff notes that "Texas Court do not recognize the inevitable disclosure doctrine but have come close – California does not appear to either."

• Federal Employees May Pick & Choose Which Title VII Claims to Appeal
  
  • Daily Developments in EEO Law - Paul Mollica notes the Seventh Circuit's recent decision in Payne v. Salazar, in which the court holds that federal employees who adjudicate their Title VII claims through the agency route have a choice, if they are dissatisfied with the result, between appealing to the EEOC or refiling the claims in federal district court. Mollica notes that this case becomes the first to hold that an employee with multiple Title VII claims may accept the results of a winning claim while also proceeding to federal court with the losing ones.

If you come across an article that you think should make the weekly round-up, drop me a line at chris[at]mckinneylaw.net.

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Five women who worked at an Indianola toy company allege in lawsuits that a co-worker and supervisor subjected them to graphic sexual comments, touching and other harassment.

According to the lawsuits, female workers were routinely referred to as "luscious lips," "babe" and far more explicit names. The two male employees accused of committing the harassing conduct allegedly talked about the size of their genitals and posted drawings of female breasts around the office.

Read the entire article here.

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Albertsons, LLC, a national grocery chain, will pay $8.9 million and furnish other relief to settle three employment discrimination lawsuits filed by the U.S. Equal Employment Oppor tunity Commission (EEOC), the agency announced today. The EEOC had charged Albertsons with race, color, and national origin discrimination and retaliation at its Aurora, Colo., distribution center. The monetary relief will be distributed among 168 former and current employees.

All three of the EEOC’s cases stemmed from incidents at the Aurora distribution center, which is being closed for unrelated reasons. The first case, EEOC v. Albertsons LLC, Civil Action No. 06-cv-01273, was filed in 2006 and alleged a pattern or practice of workplace harassment and discrimin ation based on race, color and national origin. According to the lawsuit, minority employees were repeatedly subjected to derogatory comments and graffiti. Blacks were termed “n-----s” and Hispanics termed “s---s,” among other offensive epithets.

The EEOC said the offensive graffiti included racial and ethnic slurs, depictions of lynchings, swastikas, and white supremacist and anti-immigrant statements. The graffiti in a commonly used men’s room was so offensive that several employees would relieve themselves outside the building or go home at lunchtime rather than use the restroom. Some of this graffiti remained for years until the restroom was remodeled in 2005.

The EEOC also charged that minority employees were given harder work assignments and were more frequently and severely disciplined than their white co-workers. According to the EEOC, managers were aware of, and even participated in, the harassment and discrimination.

The second lawsuit, EEOC v. Albertsons LLC, Civil Action No. 08-cv-00640, was filed in 2008 and alleged a pattern or practice of retaliation. The EEOC alleged that dozens of employees complained about the discriminatory treatment and harassment and were subsequently given the harder job assignments, were passed over for promotion and even fired as retaliation.

The third case, EEOC v. Albertsons LLC, Civil Action No. 08-cv-02424, was also filed in 2008 and alleged race discrimination on behalf of a single African American employee at the distribution center who was terminated.

Source: EEOC Press

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Prior to Congress' recent amendments to the ADA, few if any lawyers would have given serious consideration to using the ADA as an avenue to sue for a pregnancy-related condition instead of bringing a traditional pregnancy discrimination claim pursuant to Title VII.  The fact that the EEOC has recently filed a lawsuit seeking to do just that speaks volumes about the how much stronger the ADA is perceived to be by practitioners following the recent amendments.  

The EEOC’s lawsuit charges that D.R. Horton (NYSE:DHI) refused to accommodate a female project manager in Kirkland, Wash., when it denied her additional unpaid leave time after her doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. Although the company initially provided some leave time, it finally stated it was against company policy to provide the employee any more leave time, even if it was unpaid, and then fired her.

The EEOC, filing suit on the employee's behalf, has apparently determined that it can bring a stronger case under the new and improved ADA than it could by utilizing Title VII's protections against pregnancy discrimination.  This will be an interesting case to watch.  

According to the company's website, D.R. Horton is the biggest home builder in the United States and a Fortune 500 company with operations in 28 states and headquarters in Fort Worth, Texas.

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The U.S. Equal Employment Opportunity Commission (EEOC) filed suit last Friday against Fireside West, LLC, doing business as the Hilton in Lisle/Naperville, Ill., charging that the hotel violated Title VII by subjecting its Hispanic employees to a hostile work environment. The EEOC’s complaint said that the hotel subjected Hispanic employees to frequent ethnic slurs from the hotel’s executive chef.

The EEOC’s lawsuit, in U.S. District Court in Chicago (Civil Action 09-CV-05979, assigned to District Judge James B. Zagel and Magistrate Judge Maria G. Valdez), arose out of charges of discrimination filed with the EEOC by two former employees of the hotel. The EEOC’s administrative investigation which preceded the lawsuit, supervised by EEOC Chicago District Director John Rowe, revealed that the executive chef would allegedly openly refer to Hispanic employees under his supervision with derogatory terms such as “wetbacks,” “f----ing Mexicans,” and “stupid Mexicans.”

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AT&T Services, Inc., doing business as Southwestern Bell Telephone Company, L.P. (AT&T), a major telephone company, violated federal law by refusing to hire an applicant simply because he is an insulin-dependent diabetic, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed last week.

According to the EEOC’s suit, AT&T violated the Americans With Disabilities Act (ADA) by failing to hire an applicant as a cable splicer technician in Austin only because of his “insulin use” for type 2 diabetes. Indeed, according to the EEOC, the applicant indisputably had the necessary experience and expertise to perform the job and had previously safely performed a similar job for AT&T for many years after he was diagnosed with diabetes.

Refusing to hire a qualified individual because of his or her disability, record of disability, or because the employer perceives a person as being disabled, violates the ADA. After the EEOC’s San Antonio Field office determined that AT&T had violated the law, it filed suit (CASE NO. A09CA700JN) in U.S. District Court for the Western District of Texas, Austin Division, after first attempting to reach a voluntary settlement. The EEOC seeks back pay, compensatory damages and punitive damages for the victim, as well as injunctive relief.

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