Fiddler & Associates, P.C.
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May 2010 Archives

Why Arbitration Is Bad For Employees

Arbitration is a private trial, generally before one or three arbitrators (usually attorneys or retired judges).  The results are binding and usually not appealable.   The rules of evidence do not apply.  The arbitrators are not required to follow the law or state a reason for their decision.  Here are four reasons arbitration is usually bad for the employee:

Employment-At-Will v. Right-To-Work

I've noticed over the years that non-lawyers often confuse the concepts of right-to-work and employment-at-will. Because they are foundational concepts, it's important to understand the difference. Employment-at-will is the general rule throughout the overwhelming majority of the United States. It's the law in Texas. Employment-at-will means that, absent a contract to the contrary, an employer may discharge an employee for a good reason, a bad reason, or no reason at all, so long as it's not an illegal reason. The list of illegal reasons is relatively short. Employment-at-will also means the employee, absent a contract to the contrary, can resign at any time and needn't have a good reason nor provide notice. Of course, providing notice is generally the professional thing to do. To say one lives in a right-to-work state means that, generally, in that state workers can't be forced to join or contribute to a labor union as a condition to working for a company. The number of states that are right-to-work states are pretty closely evenly split with those states that are not. Texas is a right-to-work state. You can see then that the doctrine of employment-at-will and the doctrine of right-to-work are very different. Another way to look at it is that employment-at-will protects the employer, and right-to-work protects the employee. Knowing the difference may be the key to understanding where you stand with your employer some day. GSF

3 Things To Remember When Reporting Sexual Harassment

The law regarding sexual harassment is designed to encourage victims to report sexual harassment and give their employers the opportunity to correct it.  This means women are often reporting sexual harassment without first consulting an attorney.  Here are three things to remember when reporting sexual harassment. 1.  It's Not Your Fault.  I didn't understand this one when I first began handling sexual harassment cases, but I've seen it enough now to know it's a reality. Women who have been sexually harassed inherently feel guilty or responsible, as if they've done something to invite the harassment, when it's usually not their fault at all.  Don't make this mistake, and when you complain don't speculate in your complaint about what you might have done to encourage the harassment.  You will regret it later when time provides objectivity the present omits. 2.  Don't Worry About How Your Report Will Affect the Harasser.  This one always shocks me.  The boss gropes his secretary, hounds her for sex and makes repeated sexual remarks to her, but she delays in reporting because she doesn't want him to lose his job, or when she reports she omits much of the conduct to keep him from being terminated.  I can only guess this peculiar compassion for sexual predators is somehow birthed by the misguided emotions recounted above ("It's Not Your Fault").  Don't give in to this temptation.  If he's doing this to you, he's probably done it to others before you who didn't report him.  Besides, your compassion will be interpreted by the company and its attorneys in any subsequent litigation as an indication that what he did to you must not have been serious. 3.  When You Report, Report Everything. Whether you make an oral report or a written statement, you must take your time and mention everything that he's done or said to you of a sexual nature, regardless of how serious it seems at the time.  Your impulse will be to leave out everything but the one act that caused you to report him because the whole situation is uncomfortable to deal with, but avoid the urge.  What you don't report won't get investigated, and if a lawsuit develops you can rest assured anything you left out of your statement the company's lawyer will argue never happened and was made up by you and your attorney after-the-fact. Remember these three things and you will be more likely to put an end to the sexual harassment when you report it, protect others from becoming victims, and preserve any claims you might have if the company doesn't act appropriately.  GSF.

The Truth Re: Hostile Work Environment Claims

One of the most common misconceptions non-lawyers have about employment law is that there is a generalized claim for a "hostile work environment."  In Texas, just because your boss is hostile, yells at you, demeans you in front of others, does not, in-and-of-itself, make for a hostile work environment claim (although it could give rise to other claims).  In Texas, generally, and under federal law as well, a hostile work environment claim will only exist if the hostility is motivated by an illegal factor such as age (if you are over 40), gender, race, color, national origin, religion, disability or retaliation for having complained about one of these forms of discrimination. The question we will usually ask a potential client who complains of a hostile work environment is whether the instigator treats everyone the same way.  In other words, is he or she an equal opportunity bully?  If so, you will probably have a difficult time proving you suffered discrimination by such treatment.  The most important question you can ask is "Why is he/she treating me this way?"  The second most important question is "What makes me believe that?"  If the answer to the first question is an unlawful motive and the answer to the second question is something other than speculation, you may have a hostile work environment case.  GSF

How to Talk to an Employment Lawyer

We get anywhere from five to fifteen call each day for new cases. Those calls have to be screened because, while I would love to speak with everyone who calls, if I did I would have little or no time to practice law. I know there are other employment lawyers who aren't as busy or don't have a staff and who will personally screen your call, but whether you are talking to them or to my staff, there are some things you can do that will make it more likely they or I take your case. Answer questions directly and avoid the urge to tell your story. I know this seems counter-intuitive, but it's the most important thing you can do. Good employment lawyers are like doctors--they are looking for certain key facts (or symptoms), the presence or absence of which will determine whether they can take your case. Your urge will be to download all your information on the attorney so he or she can look for what they think is important, but that's not an efficient way to get to what is important. When you are done answering the lawyer's questions, if you think there's something important they missed you can add it. My staff will usually ask you this at the end of the call. Be prepared to tell them the real reason you believe you were terminated. Most terminations are illegal only if they have occurred for an unlawful reason. Therefore, you will almost always be asked, "What do you think is the real reason you were terminated?" If you don't know the real reason you were terminated (and you are calling for a wrongful termination case), chances are we will not be able to help you. We understand you aren't a mind-reader and don't know with metaphysical certainty what was going on in your employer's mind when they made the decision to terminate you, but if you have no idea we probably won't either. Be prepared to provide evidence supporting the real reason for termination. We understand you probably don't have a tape recorded conversation from your employer admitting they are terminating you because of your age, but we will want to know the basis for your belief. If it's an age discrimination case, were you replaced by someone younger, were other older people terminated, or were remarks made about your age? Unlike the impression given on television, it's evidence that drives a case, not the charisma of the attorney. And when we are looking to take a new case, the cases with the best evidence will always be more attractive. I hope this helps. And if my staff or another attorney insists on asking you questions before hearing you story, or keeps asking you questions about why you believe you were terminated, you will understand why. GSF

3 Biggest Mistakes Made by Victims of Employment Discrimination

Having practiced now for twenty years, I've seen many a good employment discrimination case ruined or severely damaged, not because the employee was not the victim of discrimination but because of mistakes made after the discrimination occurred.  Here are the top three ways to ruin or damage your case if you have been the victim of discrimination. 1.     Quitting. Quitting your job, that is.  I see this one all the time.  An employee is suffering from discrimination or retaliation.  The evidence is mounting that the employer is trying to get rid of the employee for an unlawful reason, and saddled with the weight of that knowledge and the accompanying anxiety, the employee quits.  Here's the problem with that.  As a general rule, the discrimination laws protect employees from ultimate adverse employment actions such as termination, failure to promote, pay cuts, etc. (there are exceptions but they go beyond the scope of this post).  "Constructive discharge"--quitting because of circumstances so intolerable a reasonable person would feel compelled to resign--is technically the same as termination, but it looks better on paper than in reality.  In reality, a constructive discharge is very difficult to prove and experienced attorneys tend to avoid taking such cases.  Talk to an employment lawyer before making a decision to quit. 2.     Going to the EEOC without a lawyer. The Equal Employment Opportunity Commission is made of great people who want to help you and will help you prepare and file a charge of discrimination, but they are generally not attorneys.  I've seen many good cases damaged because the right claims were not asserted in an EEOC charge or statements were made that should not have been made.  If you can't find a lawyer, sometimes you have to go to the EEOC on your own so you don't miss mandatory filing deadlines.  Otherwise, hire a lawyer first.  And, if you've already filed with the EEOC don't rely on the EEOC to represent you.  They don't.  They are investigators.  Seek legal representation. 3.     Not hiring an employment law specialist. Hiring a lawyer is not an easy task. There are more than 60,000 lawyers in Texas and more than 16,000 in Houston.  But the law has become highly specialized and no one can be an expert in every area or even many areas.  Employment law is a particularly difficult area for non-specialists.  It is very much law-driven, there are short and confusing statutes of limitations and proving a discriminatory motive is very difficult if you are not experienced at doing so.  I've had people come to me with otherwise good cases that had been handled by non-employment law specialists, and because of deadlines missed or the way the case had been litigated, the case had been so damaged I could not take it.  You don't go to a general physician or a heart specialist for a brain tumor.  Don't make this mistake with your employment law case. I hope this helps if you ever become the victim of employment discrimination.  GSF

Disabled Protected Again

When the Americans With Disabilities Act ("ADA") was passed in 1990, the business community trembled.  The ADA's definition of disability was broad and seemingly covered millions of Americans.  In fact, the text of the ADA finds that 43 million Americans are disabled.  The ADA prohibited discrimination against those with disabilities and imposed upon covered employers the obligation to provide reasonable accomodations so disabled employees could perform the essential functions of their job.  Employers had reason to take notice of the ADA. However, after the ADA became law, our courts began interpreting the ADA so narrowly it left the ADA largely ineffective.  Experienced employment lawyers stopped taking employee's cases because, frankly, the courts made them practically impossible to win, particularly in the federal Fifth Circuit (the federal circuit including the states of Texas, Louisiana and Mississippi).  A stastical analysis on ADA cases in the federal Southern District of Texas a few years ago proved what we practictioners already knew, that given the Fifth Circuit's (and Supreme Court's) interpretations of the ADA's definition of "disability," it had become nearly impossible to establish someone was disabled under the ADA.  And, if your client was not disabled he/she did not have any protections under the Act.  The running joke among practictioners became, "Yeah, 43 million Americans are disabled, but apparently none of them live in the Fifth Circuit." All that changed on January 1, 2009, when amendments to the ADA became effective, overturning court decisions that had emasculated the ADA and restoring protections to disabled Americans.  Texas followed with amendments to the Texas Commission on Human Rights Act that became effective September 1, 2009.  Disabled Americans are now protected again in the workplace again, and because of the amendments to federal and state law, employment attorneys are now in a position to help disabled employees in their struggle for equal protection in the workplace.  GSF

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