In jury selection of an employment discrimination case, the employer addresses the potential jury pool after it has already heard from the employee’s lawyer. When the employee’s lawyer has done an effective voir dire (i.e., jury selection), the employer might start to see the panel members begin to express verbal and nonverbal cues that the jurors are beginning to form opinions about the case that would tend to favor the employee.  The plaintiff employee, as the party bearing the burden of proof, always has a real advantage in getting to talk first and last at every stage of a trial. 

While the trial judge will undoubtedly advise the jury that nothing the lawyers say is evidence, it is important to remind the jury to refrain from from forming their opinions until all of the evidence is in (read:  the employer has a chance to put its case on).  I’ve even some some defense lawyers go so far as to ask potential jurors at the beginning of jury selection if, having heard the plaintiff employee’s voir dire, was anyone leaning just a little toward thinking the plaintiff might have a case.  That is usually following by some example to show that every story has two sides and the jury can’t really decide what happened until they have heard all of the evidence. 

The importance of ensuring that jurors are reminded to keep an open mind until they have heard all of the evidence is exemplified in two posts written by two of my colleagues about the same case.  On September 8, 2011, the EEOC announced that it filed a lawsuit against Walgreens for allegedly violating the Americans with Disabilities Act when it fired an employee for eating chips to stop a hypoglycemic attack.    The EEOC summarized the facts as follows:

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.

Jon Hyman, who represents employers, defended Walgreen’s actions on his blog the Ohio Employer Law Blog.  He wrote that:

You might think that a $1.39 bag of chips, for which the employee later paid, is not a fireable offense. Yet, no rule is more important to a retailer than its no-shoplifting rule. Most stores have zero tolerance policies, both for customers and employees. It may seem unreasonable to fire a diabetic employee over one bag of chips. Consider, however, that the employer might not want to set a precedent that it is acceptable to eat food off the shelf without paying for it first. If customers see an employee consuming merchandise without paying first, they might think it’s allowed by the store, which makes shoplifting and loss prevention that much more difficult for the employer to control.

After reading Jon’s post, you might be inclined to side with the employer and believe that the EEOC overstepped its bounds by suggesting that Walgreens had to, as a reasonable accommodation, excuse one of its personal conduct rules.

Shortly after Jon’s post was published, Chris McKinney (a fellow Texas lawyer) who represents employees, suggested that Jon’s defense of Walgreens was as good as could be done if not a little over the top in accusing Ms. Hernandez of stealing the chips and further suggesting the company’s defense was factually false.  Chris had the following closing argument on Walgreen’s actions:

At trial, Walgreens will presumably say that Ms. Hernandez had any number of alternative actions available to her, including: 1) leaving her station to get some food from her purse or locker (for which she would undoubtedly be fired; or 2) risk going into diabetic shock.  From the company’s point of view, choice 2 is obviously the preferable solution.

No one can accurately predict how this case will ultimately conclude (although I’d bet a large sum of money that like most civil cases –and most brought by the EEOC –it will end with a settlement) but it a good reminder that every case has at least two sides and the jury must be reminded not to forms its opinions until it has heard all of the evidence.

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Yesterday, the Supreme Court of Texas heard oral argument in two employment cases.

In El Apple I, Ltd. v. Olivas, (No. 10-0490), the Court is considering whether detailed lodestar attorney fee calculation is required with breakdowns for each specific task.  Also under consideration is whether appellate fees should be calculated in advance or only upon remand from appeal.  You can access a video of the oral argument here.

I’ve written before about the Prairie View A&M University v. Chatha case, which I believe was wrongly decided by the court of appeal.  (post here).  In Chatha (No. 10-0353), the Court is considering whether the statute of limitations on an employee’s complaint of discriminatory pay commences on the date the decision is communicated to the employee or on the date the paycheck reflecting the allegedly discriminatory pay decision is issued to the employee. You can watch the video in Chatha here.

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I’ve previously written about the new NLRB requirement that most employers post notice of employee’s NLRB rights (post here).  The posting requirement is effective November 14, 2011, for both union and non-union employers.  Yesterday, the NLRB made available an appropriate posting for download.   The NLRB’s site also has answers to some commonly asked questions about the posting requirement that you can access here.

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This week the Fifth Circuit held that a cause of action exists for hostile work environment under the ADEA –the first such express holding in the Circuit.  In Dediol v. Best Chevrolet, the plaintiff filed a hostile work environment and constructive discharge claim against the employer.

During the brief two months of employment, Dediol claimed that his direct supervisor repeated referred to him by profane, derogatory names invoking his age; made offensive remarks about his religious beliefs; threatened him both economically with the loss of his job and with physical threats of violence and intimidation. When Dediol’s requested transfer to another department was denied by his supervisor, he told the company’s management that he could no longer take the abuse and ceased reporting for work. The employer terminated his employment for job abandonment. He filed a charge of discrimination; received a right to sue letter and file a hostile work environment suit based on age, religion, harassment and constructive discharge.

In the first holding of its kind in the Fifth Circuit, the panel held that a plaintiff’s hostile work environment claim based on age discrimination under the ADEA could be advanced in court. In setting out the parameters for such claim, the Court borrowed liberally from Title VII hostile work environment jurisprudence.   The court held that the plaintiff must show that 1) he is over age 40; 2) the employee was subject to harassment, either through works or actions, based on age; 3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and 4) there is some basis for liability on the part of the employer. In determining whether the harassment is intimidating, hostile or offensive, the conduct must be both objectively and subjectively offensive.

Having concluded that an ADEA hostile work environment based on age exists in this Circuit, the Court examined the record and concluded that genuine factual disputes existed as to each of Dediol’s causes of action. The court reversed the trial court and sent the case back for further consideration –including, potentially, a full trial on the merits.

You can download the complete opinion here.

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Pre-game preparations are underway for the first Monday in October when the U.S. Supreme Court will commence its 2011-12 Term.  Here are the employment-related cases that are expected to be decided this Term.

Hosanna-Tabor Church v. EEOC (10-553)  To decide whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.— (to be argued Oct. 5, 2011)

Coleman v. Maryland Court of Appeals (No.10-1016) To decide whether Congress constitutionally abrogated states’ Eleventh Amendment immunity when it passed the self-care leave provision of the Family and Medical Leave Act. 

Knox v. SEIU (No. 10-1121) To decide whether (1) a State, consistent with the First and Fourteenth Amendments, condition employment on the payment of a special union assessment intended solely for political and ideological expenditures without first providing a notice that includes information about that assessment and provides an opportunity to object to its exaction and (2) a State, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of union agency fees for purposes of financing political expenditures for ballot measures?

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Texas employers have the option of purchasing workers’ compensation insurance or going as a nonsubscriber.  Deciding whether to be a nonsubscriber or purchase workers’ compensation insurance requires an idea of what your anticipated workers’ compensation premium will be (usually obtained through your insurance broker) as well as understanding what legal protection a Texas employer gets by becoming a workers’ compensation insurance subscriber. Here is a quick summary of the differences between being a subscriber versus a nonsubscriber.  

Workers’ compensation is a form of insurance purchased by employer to provide coverage for medical expenses, partial income and disability benefits for an employee suffering an injury or illness arising in the course and scope of his or her employment. In Texas, employers are permitted to opt-out of the state worker’s compensation. These employers are called nonsubscribers. There are advantages and disadvantages

The primary advantage of worker’s compensation coverage is that workers compensation subscribers (i.e., employers having workers compensation insurance coverage) cannot be held liable in court for employee injuries or illnesses that occurred in the course and scope of the employee’s employment. This protection does not apply to individuals who are independent contractors of an employer. The primary disadvantage to worker’s compensation coverage is its cost. Another disadvantage is that worker’s compensation subscribers cannot discriminate or retaliate against employees who report or have workplace injuries, and employees can sue employers if they experience an adverse employment action shortly after reporting or having a worker’s compensation claim.

Nonsubscribers, on the other hand, cannot be sued for discrimination or retaliation for taking adverse action against an employee that has been injured on the job.  They can, however, be sued by the employees for negligence and gross negligence when they are injured at work. The law is written to encourage employers to purchase workers compensation insurance. Consequently, nonsubscribers have few defenses to these claims such as claims for contributory or comparative negligence (aka “proportionate liability”) where liability is apportioned between the employer and employee based on percentages of relative fault. The only legal defenses a nonsubscriber has to a claim that an employee was injured in the course and scope of employment are that the employee was the sole cause of the injury or was intoxicated at the time the injury occurred. 

Understand that your general liability, homeowners or umbrella insurance policies alone do not provide coverage employee injuries or illnesses. Most such policies have exclusions that do not cover claims made by employees or those otherwise providing services for the employer (i.e., independent contractors). Whether to purchase worker’s compensation insurance is an important business decisions and the pros and cons of that decision should be weighed carefully.

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When I started the Texas Employment Law Update almost three years ago, there were only three employment law blogs I was familiar with written by Texas attorneys:  Work Matters -Texas Employers Blog, Jottings by an Employer’s Lawyer and the Texas Employment Law Blog. Today there are a number of other good blogs focused primarily on developments in Texas law.  Some has an employer’s focus and some focus on issues of importance to employees and individuals.

As you consider which votes to cast the the ABA Journal Blawg 100 (i.e., the list of the top 100 legal blogs), and after you’ve voted for the Texas Employment Law Update for the Blawg 100 (nomination form here), check out the following employment blogs authored by Texas attorneys to see if one or more of them should be nominated too (voting ends September 9, 2011). 

San Antonio Employment Law Blog (employee)

Houston Employment Law Blog (employee)

Employment Law Blog by Strasburger & Price (employer)

Smooth Transitions (noncompete law employee and employer)

Dallas Noncompete Lawyer (noncompete law employee and employer)

Texas Employer Handbook (employer)

If you’re in a voting mood, you can also cast your ballet for the LexisNexis Top 25 Employment Law Blogs.  I’d appreciate your vote for that honor as well.  Voting ends September 12, 2011.   You can find out how to vote for the LexisNexis Top 25 here and see other blogs outside of Texas that are worthy of following.

Follow me on Twitter @RussellCawyer.

Next week we celebrate Labor Day; the first Monday in September (although my Labor Day celebration starts a little later today).  Labor Day is and has been one of my favorite holidays.  As a child, we didn’t start school until after Labor Day and it marked the end of summer vacation.  Now, my children start school much earlier; but they still get an extra day off.  In most years when a trial or other proceeding hasn’t been unfortunately scheduled the week after the Labor Day, I also get to spend an extra day with the family. 

But Labor Day wasn’t started so school children (and their lawyer fathers) could get an extra day off.  Labor Day was originally celebrated to honor workers and as a force for changes in the workplace.  In particular to encourage reforms in employee safety, working conditions and pay.  On Monday, celebrate America’s workers and the sacrifice they make (albeit not unrewarded) for their employers and their families.

Have a safe and happy Labor Day holiday weekend.

Now for a little Texas Labor Day employment law (or as evidenced below, the lack of Texas employment law).

Texas Holiday or Premium Pay for Labor Day

Unlike some states, there is no requirement that employees be paid premium pay or overtime merely because they work on an official holiday like Labor Day.  Of course, if the employee is non-exempt and the work on Labor Day pushes him over the 40 hour per week threshold, the FLSA would require overtime be paid for those hours worked over 40 per week.

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More Labor Day resources:

U.S. Department of Labor’s 2011 page.

A History of Labor Day and More Labor Day History.

In 2010 Congress passed the Telework Enhancement Act of 2010.  The law requires federal agencies to assess and implement telework (aka telecommuting or work-from-home) arrangments for its workforce to the maximum extent practicable without sacrificing operations of the agency or employee performance.  The US Office of Personnel Managment recently published a Guide to Telework in the Federal Government.  The Guide is intended to provide practical information to assist federal agencies and employees in implementing telework arrangements.  

Some private employers have long used telecommuting as an option for certain types of employment.  Telecommuting (or telework) can reduce an employer’s real estate and energy costs, promote management efficiencies, allow for work to get done during periods of inclement weather or other emergencies and allow greater employee flexibility for work-life balance.   The Guide published by OPM may provide useful guidance for employers considering allowing certain types of employees to telework.  Considerations include:

  • Telework arrangements should have the expectations and understandings between the employer and employee set forth in a written agreement or document;
  • Employee need to understand that telework is a privilege, not a right;
  • Telework is only satisfactory so long as it does not reduce employee performance or the operations of the employer;
  • Determine the location of the telework work site; 
  • If the teleworking employee is nonexempt, outline how worktime will be recorded and reported;
  • Ascertain what equipment will be needed for the telework assignment and who will be responsibile for maintaining it;
  • Consider how injuries incurred during course and scope of telework will be reported and handled;
  • Specify frequecy of telework anticipated (e.g., days of week or hours of day that are to be worked during telework);
  • Communication expectations during telework (e.g., frequency of contact and whether the contact will be by telephone, e-mail, instant messages and the expected time frame for responses to inquiries made during telework);
  • How illness or absences will be reported and handled on telework days.

Other Resources:

OPM’s Telework Website

Manager Handbook for Measuring Employee Performance

Guidelines for Alternative Work Arrangements

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I almost never read the letters to the editor in my local newspaper because, well . . . opinion are like . . . noses; everyone has one. However, last week I “stumbled” on a letter that was thought provoking in this period of high unemployment and borderline recession.

Jack Durham of Fort Worth, Texas proposes that the elimination of overtime would create job growth. He writes:

End overtime

I have a plan to help create jobs. The government should eliminate or drastically reduce the amount of overtime an employee could work. Employers would then seek other full-time employees to cover the gap. Smarter people than me would have to draft the provisions, but we have lawyers for that.

Instead of trying to create jobs over the next two to six years, these new employees could be hired by Labor Day. The job increase should be significant. This would discourage employers from paying 20 hours of overtime to avoid paying benefits to a full-time worker. Just a thought.

Maybe Jack is on to something; although, I think the French tried something similar with the 35-hour workweek.  A prohibition against overtime might create jobs.  It might add to some employee’s desire to have better work-life balance (i.e., less work time and more time to spend on the employee’s personal endeavors).  It would also negatively impact those employees who are willing to work longer hours for more money and could have a adverse effect on business productivity thereby hurting job growth.

Are there other reforms to the FLSA that might also create job growth?  How about elimination of the "white collar" exemptions?  Rather than paying an employee a salary for all hours worked, employers could be required to pay employees covered by the white collar exemption overtime for hours in excess of forty per week.  Would that lead employers to hire more "white collar" workers to spread the work around and reduce overtime payroll costs?  Employers that wanted to do more with fewer workers would see increased overtime expenses but those employers that wanted to avoid overtime would increase the number of workers to spread the work around so that it would be paid at straight time rates. 

Are there other reforms in the employment law context that create job growth without unduly hampering the operations of employers?  Let me know and I’ll post them in the comments section.

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