A lot, relatively speaking, happened while I took a few days off to celebrate Christmas.  The DOL published three new fact sheets on retaliation (here, here and here); the NLRB delayed its mandatory posting of employee rights and the Board passed its ambush election rules.  Hopefully this will be a quiet week and I’ll be posting again once the new year breaks.

Hoping you all have a safe and happy New Years Eve.  I’m looking forward to what 2012 brings in the way of Texas employment law updates.

Follow me on Twitter@RussellCawyer.

I read a thought provoking article by Colin Turner in Business Review Europe about the importance of rewarding employees at Christmas and how those rewards can motivate employees. The article emphasized the importance of rewarding employees not only for the service they have provided, but to reward them prospectively for the service the employer expects to receive. This pay-it-forward concept is exemplified by the following: 

The tale goes that prior to the 18th century you would give a tip to the groom at the Highway Inn in advance of the service you wanted. This was to insure performance that your horse would be fed and watered. Similarly if we want the best out of employees we must take the opportunity to reward them in advance of the service we expect and at the time when people really want to be valued – Christmas or the Festive Holiday.

The take-away from the article was that if employers should treat their employees as the valued professionals it expects and wants them to be, the employees will respond accordingly. Its an interesting philosophy to think about and may be successful in motivating some employees.

A full copy of Colin’s article can be review in at page 60 of December’s Business Review Europe published by White Digital Media.

Follow me on Twitter @RussellCawyer.

The Federal Judicial Center has announced a new pilot program to streamline discovery in employment disputes filed in federal court.  The program, announced in November, would compel initial discovery for certain employment cases where an adverse action is alleged.  Under the program, parties would have to produce, as part of initial disclosures, commons discovery items that are asked in almost every case.  For example:

Plaintiff must produce:

  • Communications with the employer concerning the factual allegations or claims at issue;
  • All other claims, charges, complaints or lawsuits that rely on the same factual allegations or claims at issue in the suit;
  • Documents concerning the formation and termination of the employment relationship;
  • Documents concerning the terms and conditions of the employment relationship;
  • Diaries, journals and calender entries maintained by plaintiff about the facts or claims in the lawsuit;
  • Current resume;
  • Documents concerning claims for unemployment benefits;
  • Communications with prospective employers; job search efforts; offers; job descriptions; income and benefits of subsequent employment (although the program places limitations on the employer’s ability to obtain discovery from these third-party prospective or current employers);
  • Documents regarding the termination of any subsequent employment;
  • Any other document the plaintiff relies on to support his or her claims.

Employer’s must produce

  • Communications between the plaintiff and the employer (its managers, supervisors and human resources representatives);
  • Responses to complaints, claims, lawsuits or charges by the plaintiff that rely on the same facts or claims as the subject suit;
  • Documents concerning the formation and termination of the employment relationship;
  • Plaintiff’s personnel file;
  • Plaintiff’s performance evaluations and formal discipline;
  • Documents relied up on to make the employment decision at issue;
  • Workplace policies relevant to the adverse action;
  • Table of contents or index for the employee handbook or code of conduct;
  • Job description for the position held by plaintiff;
  • Documents showing the plaintiff’s compensation and benefits;
  • Agreements between the parties to arbitrate or waive trial by jury of disputes;
  • Non-privileged documents concerning any investigations done by the employer of the plaintiff’s complaints or allegations;
  • Documents concerning unemployment benefits;
  • Any other document on which the employer relies to support its defenses; affirmative defenses or counterclaims including any other document describing the reasons for the adverse action.

The initial disclosures must be made within 30 days of the employer’s first responsive pleading or motion thereby speeding the exchange of information between the parties.  The standing order also contains a model protective order for use in these proceedings.  Other than the limitation (or delay) on employers being able to subpoena records from the plaintiff’s subsequent employers, this programs sounds very interesting.  It is not unlike some of the standing discovery orders that are used by the California state courts.  I am hopeful that it will reduce some of the cost involved in defending employment claims for employers that are litigated in federal court.  I look forward to seeing how it works and expect it to be a success since the mandatory disclosure subjects are discovery items requested in almost every employment discrimination or retaliation case.

H/T to Molly DiBianca and Jon Hyman who first wrote about the new program.  (here and here) 

Follow me on Twitter @RussellCawyer.

In reading a recent Fifth Circuit opinion affirming the dismissal of a employee’s claim of racial harassment involving the display of a noose, I am reminded of Mark Twain’s quote, "If you tell the truth, you don’t have to remember anything."  Its good advice to live by and even better advice for deponents and witnesses.

Nickey Brown brought a Title VII racial harassment claim against his employer, Oil States Skagit Smatco, alleging that his co-workers made racially derogatory remarks about him, subjected him to offensive racial graffiti and displayed a noose in his workplace.  These allegations often have EEOC Cause Finding and large financial settlement written all over them.  However, in this case, the district court dismissed Brown’s claims.  Why?  Brown provided materially inconsistent explanations for why he left his employment with his employer.

Not only was Brown a party to his Title VII action against his employer, he was also a party in a personal injury lawsuit.  In a deposition for his personal injury lawsuit he testified that he left employment because he was in pain all the time due to the injuries sustained in the automobile accident.  However, in this racial harassment case he testified that he left his job because of the severe harassment he endured.  Because of the directly inconsistent testimony, the trial court sanctioned Brown with dismissal of his lawsuit.  The Fifth Circuit upheld this decision.  You can read a full copy of the opinion here.

Follow me on Twitter @RussellCawyer.

It’s rare for employers state-wide to get good news in this troubled economy.  Today, however, the Texas Workforce Commission presented Texas employers with an early Christmas present in the form of the newly released 2012 unemployment tax rates.   The tax rates range from .61 to 7.58 percent on the first $9,000 in wages paid to each employee down from a range of .78 to 8.25 percent. 

The Commission is mailing each Texas employer its specific 2012 tax rate today and should be received later this week.  To understand how your unemployment tax rate is calculated, you can review these sources:

Calculating the Texas Unemployment Tax Rate

Calculate Your Unemployment Tax

Your Tax Rates -2012

Follow me on Twitter @RussellCawyer.

If you attend many EEOC meditations or the meditations of lawsuits, you know it is important to keep an accurate record of the parties’ respective settlement offers.  This is useful in trying to glean where the parties are going and whether there may be an overlap in their respective settlement positions.  Picture it Settled recently released a new Free Iphone App to assist in tracking and making settlement offers.  Picture it Settled Lite allows a party to track the dollar amount and time of each parties offers; assist a party in making subsequent offers based on prior moves in dollars or as percentages of offers; and even predicts when, in terms of time, the parties, based on their prior concessions, might reach an agreement.  While the applications is not an adequate substitute for the strategy and tactical issues that go into mediation bargaining, it is useful in that it quickly provides some common calculations parties use during the course of mediation.

Try the App and let me know what you think. You can download Picture it Settled Lite at the Itunes Store.  The company states that an Android application is also available.

Follow me on Twitter @RussellCawyer.

Last weekend, the Dallas Cowboys lost a close game to the Arizona Cardinals.  If you watched the game, you know how it ended (and probably have a bad taste in your mouth).  For those of you who didn’t see the game, here is a summary of what occurred.  

With two minutes left it the 4th Quarter and the score tied 13-13, Dallas is driving down field.  At about 28 seconds left in the game and still possessing 2 timeouts, Quarterback Tony Romo completes a pass to Dez Bryant to Arizona’s 32 yard line making a first down.  Rather than calling a time-out to run a few plays to gain a few yards for a shorter game winning field goal attempt, Dallas ran the clock down to 7 seconds before stopping the clock.  Then, a split second before his kicker kicks the field goal, Dallas head coach Jason Garrett called a timeout –but not before the kicker knocked the 49 yard field goal through the uprights.  Because Garrett called the timeout, the kick had to be redone and was missed.  The teams went to overtime where the Cowboys lost.

In the post-game press conference, Garrett refused to accept blame for any of the poor time management and decisions made in the final minute of the game. Moreover, with 24 hours to reflect on the events of the game (and every sports radio and television talk show critical of his decision), in Garrett’s Monday press conference, he did not accept blame nor did he concede that perhaps he should have made different decisions.  His explanations appeared, to some, to be of questionable believability.

And here is where the lesson lies for employers.  From time-to-time we all make mistakes. When an employer, with the benefit of hindsight, makes an obvious mistake in the manner or treatment of an HR issue, the employer should not attempt a cover-up or set forth explanations of dubious believability.  Rather, the employer should consider whether a sincere apology is in order along with taking steps to minimize or correct the mistake.  Of course acknowledging or admitting to a mistake may be used against the employer as an admission and can carry adverse legal consequences.  It may, however, help the employer avoid a lawsuit altogether. 

Garrett’s explanations for his game day decisions, in my opinion, did far more to undermine faith in his judgment and credibility than a simple acknowledgment of his mistake would have done.  Employers can learn from his mistake.

Follow me on Twitter @RussellCawyer.

What do you get as a holiday gift for the HR person who has everything?  Here are 5 suggestions:

  1. The Nothing Surprises Me, I Work in HR Ipad Case (It would be nice if the Ipad were supplied too).
  2. Show me Your Resume Wall Clock.
  3. The Essential HR Handbook: A Quick and Handy Resource for any Manager or Human Resource Professional by Sharon Armstrong and Barbara Mitchell 
  4. The Employer’s Legal Handbook by Fred Feingold, J.D.  
  5. An 8 lb Smoked Turkey from Greenberg Smoked Turkey, Inc.  I couldn’t find a way to link this an HR subject, but a Greenberg Smoked Turkey is so darned good I had to include it on the list.

Of course what would really be nice is an increase in the 2012 HR training budget; the ability to provide merit increases to worthy employees; and job growth and security. 

Follow me on Twitter @RussellCawyer.

A service letter is a letter issued by a former employer stating an employee’s dates of employment; position held; and reasons for separation of employment.  There are two uses employees typically make of service letters.  First, they are used to document or confirm a segment of the employee’s work history or to use to qualify for unemployment benefits.  More frequently, however, service letter are requested by employees who have left employment involuntarily and are considering some form of legal action against the employer and want to take the letter to an attorney.  Texas has a service letter statute on the books that purports to require the employer to provide an employee the truthful reason for discharge.  It provides that:

A corporation, company, or individual may give, on application from a discharged employee or a person desiring to employ the employee, a written truthful statement of the reason for the discharge. The statement may not be used as the cause for a civil or criminal action for libel against the person who furnishes the statement.

The Texas Attorney General has a long-standing opinion that Texas’ service letter statute is unconstitutional.  Consequently, Texas employers are under no obligation to issue, under the service letter statute, a written explanation of the reasons for an employee’s discharge.

Follow me on Twitter @RussellCawyer.