Weinstein Case Highlights Difficulty Employees Face When Reporting Workplace Harassment Claims

Harvey Weinstein

Harvey Weinstein

NPR had an excellent story yesterday about the problems that employees face in the workplace when they report sexual harassment:

"Former Hollywood mogul Harvey Weinstein's ouster from the Academy of Motion Pictures Arts and Sciences following numerous allegations of sexual misconduct have prompted others on social media to open up about workplace harassment complaints that have gone unheeded.
Most employers in most industries have written policies on and procedures for reporting incidents of sexual harassment, and human resources officials are required to investigate those claims.
And while recent decades have seen a cultural shift and more education to help minimize sexual harassment, HR consultant Sharon Sellers says there is still a big gap between what should happen, and what actually does. One concern is that many people don't feel safe reporting claims.
"The employer should take every complaint seriously, and this is one area I see where it falls down," Sellers says."

Most employees don't want a lawsuit; they just want to be allowed to do their job without being sexually harassed. Companies do their employees (and their bottom line) a disservice by not building a strong HR department that has the resources and independence within the company to investigate harassment claims and, when necessary, speak truth to power within the company.

Read the rest of NPR's article here.

Tort Reform Is A Lie: Hot Coffee Still Being Used to Mislead

Here's the lie:

The lies used to support corporate efforts to continue to restrict regular people's access to the courthouse are powerful. And, sadly, they work. Routinely, potential clients who are sitting in my office will reference the famous McDonalds "Hot Coffee" case and try to assure me that their case isn't like the Hot Coffee case.  Their case is real. 

Here's the thing, the story everyone knows about the Hot Coffee case is a myth. It's a lie pushed by big business and their tort "reform" groups to poison the minds of potential jurors and make it harder for those who have been legitimately injured to received fair compensation. 

So, What Happened?:

In 1992, 79-year-old Stella Liebeck bought a cup of takeout coffee at a McDonald’s drive-thru in Albuquerque and spilled it on her lap. She sued McDonald’s and a jury awarded her nearly $3 million in punitive damages for the burns she suffered.

Before you hear all the facts, your initial reaction might be "Isn’t coffee supposed to be hot?" or "McDonald’s didn’t pour the coffee on her, she spilled it on herself!" But that would be before you hear all the facts.

Here are the facts:

Mrs. Liebeck was not driving when her coffee spilled, nor was the car she was in moving. She was the passenger in a car that was stopped in the parking lot of the McDonald’s where she bought the coffee. She had the cup between her knees while removing the lid to add cream and sugar when the cup tipped over and spilled the entire contents on her lap.

The coffee was not just “hot.” It was very dangerously hot. McDonald’s policy was to serve it at an extremely hot temperature that could cause serious burns in seconds. Mrs. Liebeck’s injuries were far from minor. She was wearing sweatpants that absorbed the coffee and kept it against her skin. She suffered third-degree burns (the most serious kind) and required skin grafts on her inner thighs and elsewhere. (See the video above for pictures.)

Importantly Mrs. Liebeck’s case was far from an isolated event. McDonald’s had received more than 700 previous reports of injury from its coffee, including reports of third-degree burns, and had paid settlements in some cases.

Mrs. Liebeck offered to settle the case for $20,000 to cover her medical expenses and lost income. But McDonald’s never offered more than $800, so the case went to trial. The jury found Mrs. Liebeck to be partially at fault for her injuries, reducing the compensation for her injuries accordingly.

But the jury’s punitive damages award made headlines — upset by McDonald’s unwillingness to correct a policy despite hundreds of people suffering injuries, they awarded Liebeck the equivalent of two days’ worth of revenue from coffee sales for the restaurant chain. Two days. That wasn’t, however, the end of it. The original punitive damage award was ultimately reduced by more than 80 percent by the judge. And, to avoid what likely would have been years of appeals, Mrs. Liebeck and McDonald’s later reached a confidential settlement for even less than that.

Here is just some of the evidence the jury heard during the trial:  

  • McDonald’s operations manual required the franchisee to hold its coffee at 180 to 190 degrees Fahrenheit.
  • Coffee at that temperature, if spilled, causes third-degree burns in three to seven seconds.
  • The chairman of the department of mechanical engineering and biomechanical engineering at the University of Texas testified that this risk of harm is unacceptable, as did a widely recognized expert on burns, the editor-in-chief of the Journal of Burn Care and Rehabilitation, the leading scholarly publication in the specialty.
  • McDonald’s admitted it had known about the risk of serious burns from its scalding hot coffee for more than 10 years. The risk had repeatedly been brought to its attention through numerous other claims and suits.
  • An expert witness for the company testified that the number of burns was insignificant compared to the billions of cups of coffee the company served each year.
  • At least one juror later told the Wall Street Journal she thought the company wasn’t taking the injuries seriously. To the corporate restaurant giant those 700 injury cases caused by hot coffee seemed relatively rare compared to the millions of cups of coffee served. But, the juror noted, “there was a person behind every number and I don’t think the corporation was attaching enough importance to that.”
  • McDonald’s quality assurance manager testified that McDonald’s coffee, at the temperature at which it was poured into Styrofoam cups, was not fit for consumption because it would burn the mouth and throat.
  • McDonald’s admitted at trial that consumers were unaware of the extent of the risk of serious burns from spilled coffee served at McDonald’s then-required temperature.
  • McDonald’s admitted it did not warn customers of the nature and extent of this risk and could offer no explanation as to why it did not.

After the verdict, one of the jurors said over the course of the trial he came to realize the case was about “callous disregard for the safety of the people.” Another juror said “the facts were so overwhelmingly against the company.”

That’s because those jurors were able to hear all the facts — including those presented by McDonald’s — and see the extent of Mrs. Liebeck’s injuries.

But that's not the story that the public has heard. Tort reform advocates lied about the facts of the case and the fake story gained traction. It went viral. So viral that now this story is what is most often cited by jurors and others when explaining why they don't trust lawyers, why they don't like lawsuits, and why they think plaintiffs are just out for a quick buck. 

And it's all a lie.

 

 

If you want to read more, start here.

Fox Running the Hen House -- Trump Nominates Corporate Lawyer as EEOC Chair

Janet Dhillon, general counsel and corporate secretary for Burlington Stores, Inc., has been nominated by President Trump to fill a vacant seat on the Equal Employment Opportunity Commission and to become its Chair. If confirmed, Ms. Dhillon will serve a five-year term that will expire July 1, 2022.

Dhillon has spent her entire career defending corporate interests. She has served as Burlington Stores' Executive Vice President, General Counsel and Corporate Secretary since July 2015. Prior to that, she was an Executive Vice President, General Counsel and Corporate Secretary of JC Penney Company, Inc. from February 2009 through March 2015. Prior to joining JC Penney, she served as Senior Vice President, General Counsel and Chief Compliance Officer of US Airways Group, Inc. Prior to that, Ms. Dhillion was an associate and later a "counsel" with international corporate firm, Skadden Arps. 

I don't know much about Dhillon because she hasn't been much of a player in the EEO/Labor law community during her career.  Frankly, her selection is a bit of a surprise. (Given the current White House I guess we should be pleased that the Chair wasn't filled with a random TV celebrity.) However, the fact that her entire career has been spent in service of giant corporate interests is not an encouraging sign for American workers. 

Ignoring A Non-Compete Or Retention Agreement Can Cost You Serious Money

Story in the HoustonPress reports a former employee of the popular Buc-ee's convenience store chain is being sued for more than $60,000.00 for allegedly violating what is called a retention agreement.  

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The employee in question, Kelly Rieves, was hired by the store as an assistant manager in Cypress, Texas for total compensation of about $55,000. She was hired as an at-will employee, meaning that the company could fire her for any reason at any time. But Buc-ee’s required her to sign an employment contract that is uncommon in the convenience store industry. It's called a "retention agreement".

What is a "Retention Agreement"?

The contract Rieves signed divided her pay into two categories, regular pay and “retention pay." The amount allocated to "retention pay" accounted for approximately one-third of her total compensation. The contract allowed the store to recoup the retention pay should she fail to remain employed for a full 48-month term. The contract also required Rieves to give six months' notice before leaving. This is despite the fact that the company maintained the right to terminate Rieves prior to the end of the period. (The contract may or may not have contained notice provisions in favor of the employee that I am not privy to but it would not be required to have such provisions under Texas law.)

Three years later, Rieves decided to leave her job a year or so before her contract expired. We don't know her reasons but we do know she tried to work it out with the company first but her boss refused to let her out from under the contract. So she quit.

In response, Buc-ee’s sued her for the full amount of the retention pay she earned during her three years with the company -- an amount over $67,000.00.

Are Retention Agreements Legal?

In a word, yes. If drafted properly, retention agreements can be enforced against employees in Texas. However, it is highly unusual to see such an agreement used with anyone other than high-level company executives.

In the case of Ms. Rieves, a trial court ruled in favor of the company last fall. And it gets worse. The Court also ruled that, in addition to the original sum she owed under the contract, she was also responsible for the company’s legal fees plus interest on the retention pay since she left Buc-ee’s.

The total the company is now seeking from Rieves approaches $100,000. The matter is currently on appeal.

The Moral of the Story.

Don't sign an employment contract without having an attorney review it for you. Don't sign an arbitration agreement without having an attorney review it for you. Just don't!

As a lawyer who primarily represents employees, I spend a fair amount of my time trying to help workers get out of contracts that they never should have signed in the first place. It is an uphill battle.

The time to negotiate or get changes to employment-related contracts is BEFORE you sign them. Companies do not necessarily have your best interests at heart. You need to understand the implications of what you are signing BEFORE you sign it. A couple hundred dollars spent on lawyer contract review may seem like a lot when you are excited about starting a new job, but compared to the economic havoc that can be caused by signing a contract you don't understand, it's peanuts.

Get the information you need to protect yourself and your family. It may be the best money you ever spend.

Story in theHoustonPress reports a former employee of the popular Buc-ee's convenience store chain is being sued for more than $60,000.00 for allegedly violating what is called a retention agreement.

Noncompete Agreements Threaten Careers and, Ultimately, American Capitalism

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A recent New York Times story points out the damaging consequences that result when workers in broad swaths of the economy are required to sign noncompete agreements as a condition of employment.  Recent studies have found that about one in five U.S. workers are bound by non-compete agreements but only a fraction of of those workers actually have the kind of sensitive business information that the non-compete laws were designed to protect.

Keith Bollinger’s paycheck as a factory manager had shriveled after the 2008 financial crisis, but then he got a chance to pull himself out of recession’s hole. A rival textile company offered him a better job — and a big raise. When he said yes, it set off a three-year legal battle that concluded this past week but wiped out his savings along the way. “I tried to get a better life for my wife and my son, and it backfired,” said Mr. Bollinger, who is 53. “Now I’m in my mid-50s, and I’m ruined.”

Noncompetes have been increasingly embraced by pro-business state lawmakers over the last decade. Here in Texas, big business practically owns the state legislature. So, big business gets whatever it wants -- whether it is good for them or not.  Regional economies are starting to feel a negative impact these agreements can have. By effectively preventing experienced employees in entire sectors – including large sections of the Texas economy (oilfield services for example) from moving from company to company, the use of non-competes is stifling of innovation and making it impossible for any company to hire experienced workers. More and more, experienced workers are being forced to change careers rather than advance in their chosen professions.  This is bad for workers and for companies.

Non-competes are depressing wages in Texas and causing experienced workers to flee the state to states that do not allow non-compete statutes. 

As the NYTimes article notes, the impact on individual employees who inadvertently violate one of these agreements can be devastating.

“Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor....By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets – years of hard work and earned skills – and turn them into a liability….Put it all together, and suddenly some of the main avenues for finding a better-paying job – taking a promotion with a competitor, being recruited by an old colleague – are cut off.”

Meanwhile, states like California, which does not permit enforcement of non-competes, continue to lead the business world in innovation. 

If you are about to take a new job, the chances are good that you may be asked to sign a non-compete agreement. Don't do it without serious thought and consultation with an employment lawyer. Failure to take a non-compete agreement seriously could be devastating to your career. 

Court Rules Company's Website Violates ADA

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In what is the first lawsuit of this kind that I have heard of to go to trial, a Florida federal court has ruled in favor of a blind man who has filed nearly 70 lawsuits alleging that various companies’ websites violate the Americans with Disabilities Act.

On June 12, Judge Robert Scola, of the Southern District of Florida, decided that Winn-Dixie’s website is heavily integrated with the company’s physical store locations, making it subject to the ADA. His decision will require the company to update its site.

Plaintiff Juan Carlos Gil won't receive damages but the company will have to rebuild its website to comply with the court's order. The company has set aside $250,000 to update the site, though testimony during the trial indicated it will not cost nearly that much. During the trial experts estimated it would cost less than $37,000 for the company to update its site

The court ordered the company to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA drafted by accessibility experts. Experts consider this to be the de facto standard for website accessibility.

Gil can’t see the screen of his computer but uses JAWS or other screen reader software that tells him the details of the site he is visiting. When he hits the tab and shift buttons, it tells him what he needs to type. He uses the Winn-Dixie site to buy groceries and prescription drugs. He wants to use the websites to find coupons and refill prescriptions. 

One of the main questions the court had to decide was whether the website is a “place of public accommodation” under the ADA. The court ruled that because the site is “heavily integrated” with Winn-Dixie’s stores, it is.

The Court wrote:

“Although Winn-Dixie argues that Gil has not been denied access to Winn-Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’”

This case indicates that companies which have a website that is a large portion of a customer's experience (think Amazon, Wal-Mart, etc.) will need to make sure their websites are accessible for those who are blind or risk a lawsuit similar to this one. 

Read more about this case. 

Backlash Against Remote Working as Companies Order Employees Back to the Office

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An IBM-convened panel at SIOP 2017 explored the benefits and challenges of remote working. With perspectives from academia as well as public and private sectors, the consistent message was that teleworking works, and that associated challenges can be managed with careful planning and communication.

Apparently IBM doesn't believe its own research.

Last week thousands of IBM employees — roughly 40 percent of the total 380,000 workforce — were given an ultimatum. They must either relocate to a regional office or leave the company. This will be a substantial hardship for many of those employees because they may live hundreds of miles from the nearest regional office.

IBM's move is part of a growing trend among larger tech companies that are rethinking telework. Within the last several years Best Buy and Yahoo both ended or severely restricted their telework programs.

The fact that Yahoo and IBM have made this move is pretty surprising to me. Most research on the subject indicates that teleworking, when handled correctly, works. In fact it works better than working in the office for many. The true enemy of deep, substantive work is often the office environment itself. Meetings, office chit chat, and all the distractions that find their way to your office or cubicle are the real enemies of work.

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Here is an interesting article from remote work proponent Jason Fried discussing why he thinks companies like Yahoo are making a mistake by eliminating remote work options. Put simply, if you hire quality people who are interested in doing meaningful work, then remote working is a great option. If remote working is not working in your organization, then it likely indicates a problem with the type of people you are hiring or in the structure of your organization itself.

Perhaps these companies that are ending remote work programs are mistakenly addressing a symptom of a larger problem within their organizations.

Jury Awards $769,000 Against Washington University In Disability Discrimination Case

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A St. Louis woman has won a $769,000 verdict against Washington University in a trial alleging the school refused to accommodate her disability and then fired her.

The plaintiff, age 55, worked as a researcher at the university's medical school from 1996 to 2012 and had herniated disks, according to her lawsuit. She claimed her back problems caused her extreme pain in certain positions "including but not limited to cell culture and bench work" and that the university and her supervisor discriminated against her by not accommodating her condition.

Her lawyer said the university in November 2012 fired her from her cancer research position, telling her the school had lost funding for her projects. Her lawsuit said her firing was in retaliation for her request that she not be required to sit and bend over for excessive periods of time.

After a five-day trial in St. Louis Circuit Court, the jury Friday awarded Lin $269,000 in actual damages and $500,000 in punitive damages.

It should be noted that St. Louis is seen by many as being one of the most plaintiff-friendly venues in the country so your mileage may vary. 

Read the story here.

$51 Million Dollar Verdict Awarded In Age Discrimination Case

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A former Lockheed Martin engineer, who sued for age discrimination after being laid off at age 66, was awarded $51.6 million by a jury in a federal court in New Jersey. This may be the highest amount ever awarded to an individual in an age discrimination case, and stands as a stark reminder that age discrimination remains a big — and potentially very expensive — issue for HR.

Robert Braden was a mid-level manager who spent almost 29 years at a Lockheed Martin facility in Moorestown, NJ. He claims that he was a target in a reduction in force plan to replace older workers with younger ones, and that he and other older workers consistently received less pay and lower reviews and raises than younger workers.

In his lawsuit complaint, Braden said that he was the oldest of six engineers in Lockheed's Electronic Systems-Mission Systems and Sensors unit, that his title was project specialist, senior staff, and that he was the only one let go in that round of layoffs. He said that he was given no specific reason for his termination and that his job performance had been "excellent." He also said that supervisors and company executives regularly made remarks about older workers.

The $51.6 award breaks down like this:

  • $50 million for punitive damages under the New Jersey Law Against Discrimination,
  • $520,000 for economic loss,
  • $520,000 for willful action against the Age Discrimination and Employment Act (ADEA) and
  • another $520,000 for pain and suffering.

(Note that in Texas, the size of the this verdict would have been greatly reduced by the application of damages caps passed by the Texas legislature to protect companies who commit this type of wrongful conduct.)

Discrimination Against Older Workers Remains A Significant Problem

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While the size of the Lockheed verdict is certainly surprising, workplace age discrimination, unfortunately, is not. A 2013 AARP study found that almost two in three workers ages 45 to 74 said they have experienced workplace age discrimination.

And with an aging US population and ongoing economic uncertainty, more people plan to or must stay in the workforce well past the age of 65. As a result, managers and supervisors should take steps to ensure all employees are vigilant and sensitive to behavior and practices that can be grounds for an age discrimination claim.

Don't Sign Away Your Right To Get A New Job

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The growth of noncompete agreements is part of a broad shift in which companies assert ownership over work experience as well as work. A recent survey by economists including Evan Starr, a management professor at the University of Maryland, showed that about one in five employees was bound by a noncompete clause in 2014.

Employment lawyers say their use has exploded. Another recent study showed that noncompete and trade-secret lawsuits had roughly tripled since 2000. Noncompete agreements are not being used beyond the realm of protecting truly proprietary information.  They are being used, and arguably abused, by companies of all types against employees at all levels.

Employment lawyers know this, but workers are often astonished to learn that they’ve signed away their right to leave for a competitor. A recent article in the New York Times tells the story of Timothy Gonzalez, an hourly laborer who shoveled dirt for a fast-food-level wage, was sued after leaving one environmental drilling company for another.

By giving companies huge power to dictate where and for whom their employees can work next, noncompetes take a person’s greatest professional assets — years of hard work and earned skills — and turn them into a liability.

Read the entire New York Times Story

Does Judge Gorsuch Really Love the Jury Trial?

National Employment Lawyers Association Opposes Nomination of Neil Gorsuch to Supreme Court

In our current environment of a new scandal every five minutes, it is easy for really important issues to get lost in all the noise.  One such big issue currently pending is the nomination of Neil Gorsuch to the U.S. Supreme Court. 

Some oppose Gorsuch's nomination not for anything he has said or done himself, but because of the hotly contested and partisan manner in which his potential seat on the Court was arguably stolen from an equally qualified candidate by certain members of Congress last year. I personally think it was a big mistake for the republicans to inject even more partisan politics into the manner in which Supreme Court justices are selected. In our system of jurisprudence, the Supreme Court's power comes solely from its credibility with the American people. The more partisan the Court looks, the weaker it becomes.  Regardless of one's position on the issues the Court decides, it is in all of our interests for the Court to be respected and considered to be above politics to the greatest degree possible. 

Putting that issue aside for the moment, organizations that typically vet Supreme Court candidates are starting to come in with their assessments of him on issues that are important to said organizations' memberships.  This week the National Employment Lawyers Association announced their opposition to Mr. Gorsuch. NELA is the largest organization of U.S. attorneys who primarily represent employees. 

NELA's letter in opposition to Mr. Gorsuch, the text of which I include in full below, gives several reasons for the organization's opposition to his appointment. However, the most important reason listed, to my mind, is Mr. Gorsuch's reported antipathy for the jury trial...at least in employment cases. 

There have been several news reports over the course of the preceding few weeks touting Mr. Gorsuch's love of the jury trial and his plan to bring it back. Others have discussed Gorsuch's antipathy for the McDonnell-Douglass burden shifting framework in employment cases (an optional but usually-used framework for analyzing employment-related claims frequently used by judges to dismiss discrimination and harassment cases without a trial). On the surface both of these positions seem to align with the interests of employees. I hope that Gorsuch's statements regarding these issues are genuine and would support his efforts in this regard. 

But what NELA points out is that Judge Gorsuch, like many federal judges, has gotten into the bad habit of doing the jury's work for them in far to many cases. Rather than denying motions for summary judgment whenever there is a fact question at issue to be decided by a jury, he all to often weighs the evidence, draws inferences against the employee, and decides the credibility of the witnesses in the case -- all issues that are supposed to be left to the wisdom of the jury. 

Judge Gorsuch is, sadly, not unique in these reported failings. Federal judges overstepping their Constitutional role in employment cases to make improper fact determinations is a well-known problem throughout the country. (Read: "When it comes to employment cases, judges are killing the Civil Rights Act of 1964" by Judge Richard Kopf as well as "Anti-Discrimination Laws Have Been "Gutted"" on this blog.) It is a serious problem that threatens one of the most sacred elements of the American system -- the Constitutional right to a trial by jury. 

The following is the full text of NELA's letter in opposition to Judge Gorsuch's nomination: 

March 13, 2017
Submitted Via Email:
Ted_lehman@judiciary-rep.senate.gov
Paige_herwig@judiciary-dem.senate.gov
The Honorable Chuck Grassley, Chairman
United States Senate Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
The Honorable Dianne Feinstein, Ranking Member
United States Senate Committee on the Judiciary
152 Dirksen Senate Office Building
Washington, DC 20510
Dear Chairman Grassley and Ranking Member Feinstein:
On behalf of the National Employment Lawyers Association (NELA), and its 4,000 circuit, state, and local affiliate members across the country, I write to express our strong opposition to the nomination of Judge Neil M. Gorsuch to the United States Supreme Court.
NELA is the largest professional membership organization in the country comprising lawyers who represent workers in labor, employment and civil rights disputes. Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. Our members litigate daily in every circuit, affording NELA a unique perspective on how employment cases actually play out on the ground. NELA strives to protect the rights of its members’ clients, and envisions a workplace in which employees will be paid at least a living wage in an environment free of discrimination, harassment, retaliation, and capricious employment decisions; employees’ safety and livelihood will not be compromised for the sake of corporate profit and interests; and individuals will have effective legal representation to enforce their rights to a fair and just workplace, adequate remedies, and a right to trial by jury.
As a member of the Tenth Circuit Court of Appeals, Judge Gorsuch has demonstrated a troubling propensity to both draw inferences against plaintiff-employees and make improper determinations regarding the credibility of the respective parties when deciding whether an employee should be permitted to present her claims to a jury (the procedural posture in most employment cases on appeal). This practice runs afoul of the applicable provisions of the Federal Rules of Civil Procedure and rulings from the Supreme Court. Judge Gorsuch has shown an affinity for deploying legal reasoning unsupported by the text and purposes of the particular employment laws at issue, and adopting inappropriately narrow readings of both the facts and law in ways that operate to the detriment of employees seeking to vindicate their statutory rights. This pattern gives rise to the question of whether Judge Gorsuch places the interests of employers over the rights of employees, which should be fully explored during his confirmation hearing.
Judge Gorsuch’s tendencies as described above are made more troubling by his much-discussed skepticism regarding the doctrine of Chevron1 deference. Administrative regulations, as well as other interpretations and enforcement guidance from administrative agencies such as the Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board (NLRB) provide invaluable guidance to employers and employees regarding the nature of their rights and responsibilities, and are an essential tool for judges and advocates in resolving employment disputes. One can imagine many ways in which a Supreme Court Justice with Judge Gorsuch’s apparent tendencies regarding employment cases, further unencumbered by any responsibility to defer to authoritative interpretations developed by the agencies charged with interpreting and enforcing our workplace laws, could undermine profoundly the effective enforcement of the employment laws passed by Congress.
The case descriptions that follow constitute representative examples of the ways in which Judge Gorsuch’s jurisprudence in employment cases has manifested itself in cases arising under a number of different employment statutes.
A. Hwang v. Kansas State Univ.2 (Disability Discrimination)
After she was diagnosed with cancer, Professor Grace Hwang requested and received a six-month leave of absence covering the fall semester to recover from a bone marrow transplant. As she was preparing to return to teaching the following January, a flu outbreak erupted on campus. Because her doctor advised her not to subject her compromised immune system to such an environment, she sought further leave, during which she could have worked from home. This request contravened the employer’s rule capping all leave requests to a maximum of six months.
Judge Gorsuch ruled that Professor Hwang’s request for an additional leave of absence was unreasonable and affirmed the dismissal of her case. Applicable law requires that requests for accommodations be evaluated on a case-by-case basis, and in U.S. Airways, Inc. v. Barnett 3, the Supreme Court suggested that a reasonable accommodation may require an employer to modify an otherwise neutral rule (such as this employer’s six-month cap on leave). Judge Gorsuch’s reasoning also contravened EEOC Enforcement Guidance, and conflicted with rulings from numerous other Circuit Courts of Appeals.
B. Roberts v. Int’l Bus. Machines Corp.4 (Age Discrimination)
In affirming summary judgment in favor of the defendant-employer in this case, Judge Gorsuch demonstrated a number of troubling propensities that employee rights advocates understand all too well: he both drew inferences against the non-moving party and improperly weighed the evidence in a manner that Supreme Court law requires be done by a jury.
In a text message conversation, two of the defendants’ human resources employees were quoted as referencing the plaintiff’s “shelf life” in deciding whether to eliminate his position (they subsequently did). In deciding that the phrase could not constitute direct evidence of discrimination, Judge Gorsuch concluded that “the instant message conversation unmistakably suggests that ‘shelf life’ was nothing worse than an inartful reference to Mr. Roberts’s queue of billable work.”
He then moved to the question of whether the phrase, in conjunction with conflicting evidence regarding the plaintiff’s performance record, could demonstrate that the defendant’s alleged reasons for firing the plaintiff were a pretext for age discrimination. Judge Gorsuch held that the plaintiff could not demonstrate that changes in his performance reviews were a pretext for discrimination unless he could “advance evidence that IBM’s changed evaluation of his performance, whether wise or mistaken, wasn’t honestly arrived at.”
The only way in which Judge Gorsuch could reach such conclusions about the meaning of statements such as “shelf life” and the credibility of the defendant’s asserted reasons for terminating the plaintiff was by drawing a series of inferences in the defendant’s favor, and by avoiding a more common interpretation of the phrase “shelf life” when applied in conversation to an older employee. Longstanding Supreme Court precedent holds that judges must avoid drawing such inferences when deciding whether a case should be dismissed or proceed to trial.5
C. TransAm Trucking, Inc. v. Administrative Review Board 6 (Whistleblower Retaliation)
Alphonse Maddin worked as a truck driver for the defendant-employer. He was driving a tractor-trailer down an Illinois freeway on a subzero night in 2009 when he noticed that his truck was nearly out of gas. He pulled over because he could not find a fuel station, and ten minutes later, the trailer’s brakes locked up due to the frigid temperatures. Mr. Maddin was unable to resume driving the tractor-trailer and reported the truck’s unsafe condition to a dispatcher. The dispatcher told Mr. Maddin that a repairperson would be sent to fix the brakes.
Mr. Maddin dozed off briefly and awoke to find that his torso was numb and he could not feel his feet. He told the dispatcher about his physical condition and asked when the repairperson would arrive. “[H]ang in there,” the dispatcher responded.
Approximately one half hour later, Mr. Maddin called his supervisor, Larry Cluck, and told Mr. Cluck that his feet were going numb and that he was having difficulty breathing. Mr. Cluck told Mr. Maddin not to leave the trailer and gave him two options: drag the trailer with inoperable brakes, or stay put until the repairperson arrives. Mr. Maddin knew that dragging the trailer was illegal, but concluded that he might not live much longer if he were to wait for a repairperson. Consequently, Mr. Maddin unhitched the trailer and drove off.
Fifteen minutes after Mr. Maddin left—more than three hours after he first notified TransAm that he was stranded in subzero temperatures—the repairperson arrived. Mr. Maddin drove the truck back to meet the repairperson, who then fixed the trailer’s brakes. Less than a week later, TransAm terminated Mr. Maddin for abandoning the trailer. Mr. Maddin filed suit, as the applicable law prohibits an employer from firing an employee who “refuses to operate a vehicle because . . . the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.”
An Administrative Law Judge, a panel of the Department of Labor’s Administrative Review Board (ARB), and a majority of the Tenth Circuit Court of Appeals panel that reviewed this case agreed that Mr. Maddin had engaged in protected activity and was retaliated against. Judge Gorsuch, however, dissented, and went out of his way to disregard the ARB’s statutory interpretation, adopt an unnecessarily narrow interpretation of the term “operate” to conclude that Mr. Maddin had not engaged in protected activity, and belittle the applicable statute’s health and safety goals as “vague and generic.”
D. Strickland v. UPS, Inc.7 (Retaliation Under the Family and Medical Leave Act and Gender Discrimination)
In this case, the plaintiff was subjected to intense and unwarranted scrutiny of her performance after returning from a protected and approved two-week leave under the Family and Medical Leave Act. She was required to attend additional meetings that took her away from her responsibilities, was required to commit to unrealistic performance goals, and was prevented from raising concerns regarding her treatment in line with applicable company policy. Multiple co-workers testified that the plaintiff was treated differently than her all of her co-workers after her return from leave. The treatment worsened to the point where the plaintiff left the company, though she never officially quit and it was unclear whether she intended to return to work.
A majority of the Tenth Circuit Court of Appeals panel reversed the district court’s grant of judgment as a matter of law on the plaintiff’s constructive discharge claims (as applied to her retaliation claim), as there was conflicting evidence as to whether the plaintiff intended to return to work. The panel also reversed the district court on the plaintiff’s gender discrimination claims, finding that there was evidence that she was treated worse than her male co-workers.
Judge Gorsuch dissented, and would have affirmed the district court’s ruling on the plaintiff’s gender discrimination claim. Despite the evidence presented that indicated that the plaintiff was treated less favorably than her male co-workers, Judge Gorsuch concluded that the supervisor in question treated both male and female employees poorly. In reaching this conclusion, Judge Gorsuch disregarded evidence from a male co-worker that he was not subjected to the same scrutiny as the plaintiff, despite trailing her in all relevant sales categories. He also relied in part on evidence that another female employee did not also face differential treatment, despite applicable law holding that the fact that the defendant does not discriminate against every employee of the plaintiff’s protected class is no defense to a discrimination claim.
E. Weeks v. Kansas8 (Retaliation)
Judge Gorsuch held that in-house counsel did not engage in protected opposition to alleged unlawful discrimination when she advised a fire marshal to take seriously an employee’s complaints of discrimination, and he affirmed the district court’s grant of summary judgment.
This ruling is problematic for its adoption of an exception to existing anti-retaliation laws. This judge-created exception is not included in the text or supported by the purposes of Title VII of the Civil Rights Act. Pursuant to his approach, employees in positions that require them to monitor an employer’s compliance with the law (such as in-house counsel) must engage in special forms of opposition or participation activity to demonstrate that they have taken a position truly “adverse to their employer.” Absent proof of this higher level of opposition, employees who hold positions such as that of a general counsel, who in many cases will be the employee best equipped to learn about and oppose unlawful workplace discrimination, are not protected against subsequent retaliation.
In affirming summary judgment and dismissing the plaintiff’s case before trial, Judge Gorsuch also refused to resolve the question of whether the exception at issue conflicted with the Supreme Court’s decision in Crawford v. Metro. Gov’t of Nashville & Davidson Cty.,9 which suggested that all one must do to “oppose” unlawful workplace behavior and be protected against retaliation is to “antagonize ...; contend against; ... confront; resist; [or] withstand” it. Judge Gorsuch did so because the plaintiff failed to cite Crawford in her briefs, even though that fact does not prevent a judge from resolving an apparent conflict with binding Supreme Court precedent.
Employees who have been treated unlawfully in the workplace deserve a full and fair opportunity to prove their claims in our federal courts. Reasoning of the type found in many of Judge Gorsuch’s opinions undermines workers’ ability to vindicate their rights and undercuts the promise of a fair and just American workplace that is embodied by the employment statutes enacted by Congress. Judge Gorsuch’s treatment of both the law and facts in the cases cited above, and in others that we reviewed, suggests an ideological perspective which is unsympathetic to workers and too solicitous of employers, and belies his reputation as a committed textualist. As such, we respectfully urge you to oppose Judge Neil M. Gorsuch’s confirmation to the United States Supreme Court.
Sincerely,

 
Terisa E. Chaw
Executive Director

Read More: ScotusBlog Profile of Gorsuch - Natural Successor to Scalia

Legal Legend, Justice Jack Pope, 1913-2017

Justice Jack Pope, a legal legend who spent 38 years as a Texas judge — including a politics-defying two-year stint as the Texas Supreme Court’s chief justice — died Saturday at age 103 in Austin.

Andrew Jackson Pope Jr. was born to Dr. A.J. and Ruth Pope in Abilene, Texas in 1913, the year Henry Ford revolutionized automobile manufacturing with the assembly line and the year road-builders completed the first coast-to-coast paved highway.
 

Justice Pope graduated from public schools in Abilene and earned a BA degree from Abilene Christian College in 1934 (now "Abilene Christian University"), my alma mater. He is possibly the most beloved alumnus of ACU. In a sense, he never left his hometown, serving for years as a trustee on the Abilene Christian University board. Most of his library and papers were donated to the university.

Justice Pope obtained a law degree from the University of Texas in 1937 after having been the editor of the Texas Law Review. While in Austin he met a recent graduate, Allene Nichols. They married June 11, 1938 and began a loving partnership that lasted 66 years.

Governor Coke Stevenson appointed Pope Judge of the 94th District Court. In 1960, Justice Pope was elected to the Fourth Court of Civil Appeals in San Antonio and again elected in 1964 to the Texas Supreme Court. Governor Bill Clements appointed Judge Jack Pope in 1982 as Chief Justice of the Supreme Court. His 38 year service is believed to be the longest service of any Judge who has served on Texas' highest court.

After Justice Pope retired he developed the Pope Fellows at ACU, which give scholarships to students interested in a career in public service. In 2010 the State Bar of Texas awarded him the Lifetime Achievement Award. On his 100th birthday all the living U.S. Presidents and their wives sent letters thanking the Judge for his life of service and giving.

A lifetime of service indeed. Justice Pope led a life that all lawyers would do well to emulate. May he rest in peace. 

$500,000 Defamation Settlement for a Facebook Comment

According to a report in the ABA Journal, a woman has agreed to pay $500,000 to settle a defamation suit over a comment she made on Facebook that allegedly implied a onetime rival had caused the death of her child. 

The case reportedly resulted from a disagreement between two North Carolina women who originally were cooperating in an effort to take control of a local low-wattage radio station. They had a falling out and eventually the toxic dispute moved online. According to the report, one of the women made a comment on Facebook regarding the other that "I didn't get drunk and kill my kid", implying that the other woman had done so.

The comment was particularly harmful to the other woman because her son was killed by an accidental shooting while playing with another child in the 1970s. 

And while the comment at issue does seem pretty nasty, a $500,000 defamation settlement in a case like this is pretty remarkable. As is often the case with settlements, one wonders if there were other issues motivating the parties that did not make the news reports.

View the entire article.

Reporting Harassment or Discrimination is a Tricky Business

Mike Haberman has a post out this week titled "Who Do You Report Harassment To If the Harasser Is the CEO?".  It is a thoughtful article and it makes the excellent point that HR for every company needs to bake into their policies a method by which an employee can internally report sexual harassment being committed by the CEO or owner of a company without risk of retaliation. I think that is an excellent goal to strive for and I hope that all HR departments set that as a goal.  There is only one problem with the premise of the article. 

The effort will almost certainly fail. 

Extra Credit if you can identify the initials of the Florida "businessman" Frank and Michael are discussing in this scene.

Extra Credit if you can identify the initials of the Florida "businessman" Frank and Michael are discussing in this scene.

 

 

Michael Corleone: "C'mon Frankie... my father did business with HR, he respected HR."
Frank Pentangeli: "Your father did business with HR, he respected HR... but he never trusted HR!"

 

 

 

 

HR is, in my opinion, possibly the most challenging role for any manager to do and do well. It is arguably designed to fail. The problem is obvious: HR serves two masters. On the one hand, HR is designed to serve as a helpful ombudsman to employees. To assist employees who are being mistreated. To conduct thorough investigations and correct inappropriate behavior against employees. On the other hand, HR is required to defend management against accusations of unlawful employment practices. HR is usually directly involved in the termination decisions that lead to EEOC filings. HR is then in charge of or at least heavily involved in drafting the company's defensive statement of position filings, arguing that the company is blameless. Thus, the very department that an employee is supposed to trust with his or her career and feel comfortable making a complaint to is the same department that will be spearheading the fight against the employee when it all goes south. 

What this means in most companies is that, no, you cannot trust HR to help you. While many HR officers have their hearts in the right place when they start working in the field, they can't help but know who is responsible for signing their paychecks. Hint: it's not the employee bringing a complaint against a member of management.  

So, should you bring complaints to HR? Yes, you should. In fact, in many cases you are legally required to do so or you risk waiving any claims you may have against the company for the discrimination or harassment you are reporting. Just don't assume that HR's only role is to help you. Because it isn't. While HR may be trying to assist you they are also assessing corporate risk, documenting your complaint in a way that will assist the company in defending against your complaint, and looking for ways to satisfy the demands of management. 

Here are a couple of quick tips: 

  1. Make all reports in writing. When push comes to shove down the road, HR is liable to either not "remember" you made a complaint or to remember it substantially differently than you do. Putting your report in writing is the only way to prove you made a complaint, when you made it, and to whom the complaint was made.  
  2. You know that written report from number 1, above?  KEEP A COPY. A written complaint does you know good if you send the only copy to HR. It might...you know...get lost. 
  3. Consider going outside the organization to the EEOC. If your complaint involves EEO-based (age, sex, race, religion disability, color) discrimination or harassment then consider making a complaint to the EEOC sooner rather than later. There will be little question that a report to the EEOC is protected activity under the law. This gives you a somewhat higher level of protection from retaliation than if you merely report internally. 
  4.  Consult with an employment lawyer. If you are in a situation in which you feel you need to make a complaint against management then, make no mistake, you job IS at risk. Start looking for a qualified employment attorney who represents employees. Be warned, in many parts of the country there aren't that many who lawyers who specialize in representing employees. So start looking before you need one. And don't expect such a lawyer to visit with you for free. This is not a simple car accident case and you aren't looking for a PI lawyer who can take your case on a contingent fee basis. Employment law is very specialized and contingency fees are generally not available for consulting services. If you find a qualified lawyer to advise you, however, it is money well spent. 

Bottom line: Yes, you should report harassment or discrimination internally to your company's HR department. But that doesn't mean you should blindly trust the HR department. Understand that they serve two masters and protect yourself accordingly.  

Docking Pay From Salaried, Exempt Employees Is Illegal...And Very Common

FLSA Overtime
FLSA Overtime

The Fair Labor Standards Act (FLSA) is the federal law the controls the terms under which employees must be paid overtime. All employees fall into one of two categories "Exempt" or "Non-Exempt". If an employee is non-exempt, when they reach more than 40 hours in a given work week, they have to be paid at time and a half for any additional hours. If they are non-exempt), they aren't eligible for overtime. Most people think of non-exempt employees as "hourly" and exempt employees as "salaried".

Pro-Tip: Just because your employer pays you as salaried does not necessarily mean that you should be considered exempt and not entitled to overtime. Exempt employees are typically involved in management or high-level administration of the business. There are other exceptions as well but a good rule of thumb is this: if you are more like a rank and file line worker or clerical worker, you should probably be getting overtime. If you aren't you need to find a good employment lawyer.

As a general rule exempt employees are paid a salary and don't have to be paid overtime no matter how many hours they work. But there are other rules that come that exempt status. One important one that employers often ignore is the rule against docking pay.

Exempt employees who are late or who need to leave work early - for doctor's appointment, child care, whatever - cannot have their pay docked for missing a couple of hours of work. If an exempt, salaried employee shows up for work, even if it's just for 15 minutes, he or she must be paid for the entire day. That's the rule.

The employer can discipline, fire, or demote the employee. But it cannot dock the employee's pay.  Importantly, the employer is allowed to dock vacation time and force the employee to use that to cover the hours missed. But the employees pay may never be docked.

So what happens if the employer breaks this rule and docks pay? Well then the employer has just lost the FLSA "exemption" as to that employee. This means the employee is owed overtime for all hours over 4o worked in the last two years plus all overtime worked in the future. This can add up to a substantial amount.

So, long story short is this: If you are paid by salary and your employer docks your pay for being late or missing a few hours of work here or there, you should contact an employment lawyer right away. Your employer is taking advantage of you and breaking the law. You may be owed a substantial amount of overtime pay.

McDonald's Settles Wage Theft Lawsuit for $3.75 Million

Nah, nah, nah, nah, nah, Not Lovin' It!

Nah, nah, nah, nah, nah, Not Lovin' It!

McDonald’s still insists it isn’t a joint employer of workers in its franchise restaurants. But despite its arguments to the contrary, the company is paying out millions to settle a lawsuit based on just such a claim. This past week, lawyers representing about 800 employees at five restaurants owned by a single franchisee announced McDonald's had agreed to pay $1.75 million in back pay and damages and $2 million in legal fees.

The lawsuit was filed in 2014. In it, the plaintiffs claimed McDonald’s and its franchisee, Smith Family LP, violated California law by failing to pay overtime, keep accurate pay records and reimburse workers for time spent cleaning uniforms. The franchisee previously settled the claims against it for $700,000.

The legal issue in these franchise vs. joint employer cases is in a word: control. The more control a franchiser like McDonald's exercises over its franchisees (the individual owners of its stores), the more likely it will be found to be a joint employer of the franchisee's employees. And in this case, it appears that McDonald's exercises a great deal of control over its individual franchise owners. So much control, the plaintiffs argued, that the corporate McDonald's should not be able to shield itself from liability when one of its franchisee owners breaks the law and steals wages from rank and file workers. 

While this case is surely a good result for the employees involved, whether it signals a trend in the law more generally is still an open question. Only time will tell. 

McDonald's Hit with Sexual Harassment Charges

The Fight for $15 group, a union-sponsored group, has found another way to pressure McDonald's. The group recently filed EEOC charges on behalf of 15 U.S. McDonald's workers who say they were sexually harassed on the job. 

The Charges were filed with the U.S. Equal Employment Opportunity Commission against McDonald's USA LLC and individual franchisees in eight states over the last month. The charges include one worker alleging a manager showed her a picture of his genitals and said he wanted to "do things" to her. Another charging party alleged a supervisor offered her $1,000 for oral sex.

A big part of this effort by Fight for $15 has to do with McDonald's claim that it does not employ any of the employees of any of its franchisee restaurants. In a case before the National Labor Relations Board, Fight for $15 claims the company is a joint employer of franchise workers who say they faced retaliation for joining in nationwide strikes organized by the group. McDonald's disclaims responsibility for any employment law violations that occur in its franchise restaurants even though all employment policies and procedures and training emanate from the McDonald's corporation.  

I'll be keeping an eye on these cases as they progress because they have the potential to dramatically change the legal landscape of employment law with regard to franchise business models.  

 

Read More: Reuters

The Workers' Holiday

How Labor Day Came About

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"Labor Day differs in every essential from the other holidays of the year in any country," said Samuel Gompers, founder and longtime president of the American Federation of Labor. "All other holidays are in a more or less degree connected with conflicts and battles of man's prowess over man, of strife and discord for greed and power, of glories achieved by one nation over another. Labor Day...is devoted to no man, living or dead, to no sect, race, or nation."

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity and well-being of our country.

Founder of Labor Day

More than 100 years after the first Labor Day observance, there is still some doubt as to who first proposed the holiday for workers.

Some records show that Peter J. McGuire, general secretary of the Brotherhood of Carpenters and Joiners and a co-founder of the American Federation of Labor, was first in suggesting a day to honor those "who from rude nature have delved and carved all the grandeur we behold."

But Peter McGuire's place in Labor Day history has not gone unchallenged. Many believe that Matthew Maguire, a machinist, not Peter McGuire, founded the holiday. Recent research seems to support the contention that Matthew Maguire, later the secretary of Local 344 of the International Association of Machinists in Paterson, N.J., proposed the holiday in 1882 while serving as secretary of the Central Labor Union in New York. What is clear is that the Central Labor Union adopted a Labor Day proposal and appointed a committee to plan a demonstration and picnic.

The First Labor Day

The first Labor Day holiday was celebrated on Tuesday, September 5, 1882, in New York City, in accordance with the plans of the Central Labor Union. The Central Labor Union held its second Labor Day holiday just a year later, on September 5, l883.

In l884 the first Monday in September was selected as the holiday, as originally proposed, and the Central Labor Union urged similar organizations in other cities to follow the example of New York and celebrate a "workingmen's holiday" on that date. The idea spread with the growth of labor organizations, and in l885 Labor Day was celebrated in many industrial centers of the country.

Labor Day Legislation

Through the years the nation gave increasing emphasis to Labor Day. The first governmental recognition came through municipal ordinances passed during 1885 and 1886. From them developed the movement to secure state legislation. The first state bill was introduced into the New York legislature, but the first to become law was passed by Oregon on February 2l, l887. During the year four more states -- Colorado, Massachusetts, New Jersey, and New York -- created the Labor Day holiday by legislative enactment. By the end of the decade Connecticut, Nebraska, and Pennsylvania had followed suit. By 1894, 23 other states had adopted the holiday in honor of workers, and on June 28 of that year, Congress passed an act making the first Monday in September of each year a legal holiday in the District of Columbia and the territories.
 

Wal-Mart Manager Sues Employer Alleging Religious Bias

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A Wal-Mart store manager who is a Seventh-day Adventist sued the company on religious discrimination grounds, claiming he was demoted for his observance of the Sabbath.

"Plaintiff Gordon Fields filed his suit against Wal-Mart in the U.S. District Court for the Eastern District of Pennsylvania, alleging that his employer, which previously accommodated his inability to work Friday evenings and Saturdays, rescinded that accommodation and issued him an ultimatum.

As a Seventh-day Adventist, Gordon observes a period of rest from sundown Friday to sundown Saturday. While Gordon was originally allowed to take off on the Sabbath, according to his complaint, a new human resources manager told him that the company could no longer allow that for a manager, and he would either have to work on the Sabbath or be demoted in order to maintain his religious accommodation."

 --Read the whole Legal Intelligencier Article

 Cases like this one are surprisingly common. Those that I have recently handled had a fact pattern similar to this case: an employer refusing to honor a holy day mandated by and employee's religion despite the fact that it would be a trivial matter for the company to do so. 

Texas Civil Rights Project Announces Big Win in Texas Birth Certificate Case

The State of Texas has agreed to settle a lawsuit brought by our friends at the Texas Civil Rights project on behalf of dozens of immigrant families and the community organizing union, La Unión del Pueblo Entero (LUPE), challenging the State’s refusal to issue birth certificates to babies born in Texas to undocumented mothers. In a big win for immigrant families, Texas will adjust its rules to ensure that all Texas-born babies can receive the birth certificates they are legally owed. 

Without birth certificates, these people lived in constant fear of having their families torn apart and their American-born children deported. They also struggled to get access to basic education, health, religious and childcare services. The settlement will be life-changing for them.

With co-counsel at Texas RioGrande Legal Aid, TCRP filed suit last year after Texas began refusing to accept the two forms of IDs most commonly used by undocumented immigrants to obtain birth certificates for children born in the state. We argued that these changes were politically motivated, and effectively shut out undocumented mothers, leaving most of them unable to prove the citizenship of their American-born babies.  

Under the terms of the settlement, Texas will accept several IDs that are commonly available to undocumented immigrants living in Texas. Officials also agreed to undertake significant efforts to train local registrars on the new rules. In addition, the State will run a hotline so that anyone who is wrongly turned away by local registrars can get help. 

The settlement is a significant victory for U.S. Citizens born in Texas to undocumented parents.