Union Lawyers - No, Unionized Lawyers - A First in the Private Sector

The Teamsters latest organizing success would seem an unlikely target, the lawyers who work for Parker Stanbury's Phoenix office. The firm which has five offices contracts with a pre-paid legal services provider and the attorneys provide mostly phone advice, working under a quote of resolving 2 1/2 complaints per hour. Law.com has the story. Although the salary of $50,000 may not sound bad to many of their fellow Teamsters, it is below market rates according to the newly organized. But in tones that will not be familiar to anyone who has ever been involved in any organizing drive, the main complaint - problems with poor management.

Corporate Defendants Have Constitutional Rights As Well - The Supreme Court On Punitive Damages

Since I did not pay nearly as much attention as I should have in my first year constitutional law class, I was relieved at the thought when I graduated and went to work doing labor and employment law, that it was unlikely that I would ever have to deal with what seemed like a specialty utilized in the real world mainly by the criminal and media law bars. Of course, as with many other things I thought right out of law school, I was wrong. And yesterday's Supreme Court decision in State Farm Mutual Automobile Insurance Co. v. Campbell (U.S. 4/7/03) [pdf], proved it again. Although not an employment law case, the Supreme Court's 6-3 decision may have a significant impact on employment law litigation. In one of several major holdings, the Court sets an almost bright line (while specifically saying it is not) of only a single digit ratio of punitive damages to actual damages. For a more general analysis of the decisions check out the usual suspects, How Appealing and SCOTUS, for their usual high quality commentary.


With respect to employment law, I think one effect could be the impact on the decision making process of employers on whether to press forward to trial rather than settle. The threat of an emotionally enraged run away jury, often reflecting as much their personal experience in the work place than the facts of the particular case, awarding an astronomical sum, has often been a contributing factor in making the decision to settle. In some cases, employers have gone even futher and implemented programs of arbitration required as a condition of employment in an attempt to avoid facing juries at all. Although the initial reaction of the business community and the leaders of the tort reform movement is one of elation, it will be interesting to see how it plays out in the employment law world. It might be that it will cause more employers to take chances with cases that they might otherwise have settled. And sometimes when the rules become clearer and more reasonable, the overall effect is that we get more not less. In this case that could mean more punitive damage awards that are within the newly defined limits. As with most changes in the law, the true impact of this decision won't be determined for sometime.

Do Media Reports, Employment Seminars etc. Create Problems?

I couldn't help think that when reading a CNET story that was picked up in Business Week, and a lot of other publications as well. It was certainly a well researched story on how an employer could be held liable for not blocking porn spam. Sometimes, I think problems get created when those knowledgeable of theories in the area don't have anything else to do but conjure up horror stories of what might could be done. Unless I missed it, no actual case of any employer being charged with such a violation was included in the story, just speculation.

Arbitration Or Not - New Data

New Study Shows Arbitration is Better Than Lawsuits for Individuals. In the on-going debate on whether employees whose employers are forcing them to agree to arbitrate as a condition of employment are being harmed, this study finds not that great of a difference between arbitration and federal court litigation, and what difference there is seems favorable to employees.

Three Months Down,Two to Go - Where Things Stand In the Texas Legislature

Employment law issues are not the top item in this session of the legislature. Items such as Tort Reform (which of course could have a substantial impact on employment related litigation) and the budget deficit have taken top billing, as well as the attention of the legislators. Still some of the bills tracked here have begun to move, with the first handfull being passed by one house. For a full list of bills which were introduced see the March 16 Jottings entry, which has been updated through April 5th.


What follows are the bills which have at least had or are scheduled for their initial public hearing described by their current status:


Passed by One House of the Legislature

H.B. 1221 Barry Telford Prevents a chargeback to an employer's account if unemployment benefits are provided because the employer was called to active duty military service after January 1, 2003. Referred to Defense Affairs & State-Federal Relations. Passed by the House on April 3, 2003.

H.B. 1282 Brian McCall (R - Plano) This is not an employment bill, but an anti-spam one, so certainly one worthy of watching from at least my mailbox's perspective. Referred to Economic Development. Passed by the House on April 3, 2003.

H.B. 1819 Rene Oliveira(D - Corpus Christi) Allows unemployment compensation for those who lose their jobs because of a disaster declared by the Governor. Referred to Economic Development. Passed by the House on April 3. 2003.

S.B. 374 Tommy Williams (R - Woodlands). Limits liability of employer utilizing a staff leasing company to those items for which it has contracted to pay. Passed the Senate on March 20, 2003. Referred to House Committee on Economic Development.

Scheduled for Consideration This Week

H.B. 804 Charlie Geren (R - Fort Worth) Amends Texas minimum wage law to pre-empt any city ordinance setting a minimum wage. It does not apply to government contracts or tax-abatement agreements. In light of recent adoption of a living wage ordinance by Santa Fe, New Mexico, this bill may now get more attention.Referred to Economic Development. Placed on General State Calendar for April 7, 2003.

Scheduled for Hearing This Week

H.B. 826 Yvonne Davis (D - Dallas) Requires employers to turn over any abandoned wage payments to the State Comptroller. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 945 Lon Burnam (D - Fort Worth) Would set a minimum wage for state and local governments. The minimum wage would be the higher of the federal minimum wage or one calculated based on the federal poverty guidelines. Based on the 2002 guidelines, the minimum wage would be $8.70. Referred to State Affairs. Set for public hearing on April 7, 2003.

H.B. 995 Ken Mercer (R – San Antonio). Expands the public whistle blower statute to also include protection from retaliation for reporting a waste of funds to an appropriate governmental agency. Referred to Government Reform. Scheduled for public hearing on April 8, 2003.

H.B. 1496 Burt Solomons (R - Carrollton) Establishes a study to review and propose legislation to strengthen the anti-abuse provisions of the unemployment compensation laws, including increasing collections of overpayments. Referred to Economic Development. Scheduled for public hearing on April 9, 2003.

H.B. 1684 Beverly Woolley (R – Houston). Amends the TCHRA so that the issuance of a right to sue letter by the EEOC would also trigger the 60 day deadline for filing a lawsuit under the TCHRA. This would be extremely helpful in making sure that lawsuits are timely filed and eliminate a major flaw in the current situation. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 2170 Burt Solomons(R - Carrollton) Sunset legislation concerning the renewal of the Texas Workforce Commission. Contains a number of substantive changes. Referred to Economic Development. Set for public hearing on April 9, 2003.

H.B. 2949 Reuben Hope (R - Conroe) Requires that a waiver of right to a jury trial use specific language and be in 16 point type. Part of the required statement is that the waiver is not required by law. Referred to Civil Practices. Public hearing scheduled for April 9, 2003.

H.B. 3160 Jaime Capelo (D - Corpus Christi) Would remove the restriction on subdivisions of the state from entering into collective bargaining agreements. Although this would not directly impact private sector employers, if it were to pass, it could improve the climate for unions in Texas. Referred to County Affairs. Public hearing scheduled for April 9, 2003.

Public Hearing Held, Now Pending In Committee

H.B. 50 Sylvester Turner (D – Houston) Mandatory leave for employees to attend school conferences, and penalties against retaliation for exercising that right. Referred to Economic Development. Public hearing on March 19, 2003 left pending in committee.

H.B. 152 Ron Wilson (D – Houston) Limits an employer's ability to obtain so called 'dead peasants insurance,' where an employer obtains a policy on lower paid employees with itself as a beneficiary. Referred to Insurance. Public hearing on March 10, 2003, pending in committee

H.J.R. 18 Suzanna Hupp (R – Lampasas) A constitutional amendment to grant a broad right of privacy. In California, a similar constitutional amendment was used as a basis for finding the constitutional right of privacy extended to non-government employers. Referred to State Affairs. Testimony taken on March 3, 2003. Still pending in committee.

H.B. 181 Jessica Farrar (D – Houston) Allows an individual who receives deferred adjudication to legally deny the arrest and prosecution, except for a subsequent criminal prosecution. This would impact information employers are able to obtain when hiring. The bill passed last legislative session, but was vetoed by Governor Perry. Correction of referral, now referred to Law Enforcement. Public hearing on March 17, 2003, committee substitute considered in committee, still pending in committee.

H.B. 281 Paul Moreno (D – El Paso) This is not technically an employment bill, but is likely to be one of the most talked about and contested non-financial bills of this session. It would make it a misdemeanor (punishable by a $100 fine) to talk on a mobile phone when driving, unless the car is stopped or the phone is operated without the use of either hand. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 328 Warren Chisum (R – Pampa) An attempt to allow employers the opportunity to obtain information from applicants about prior workers compensation claims and injuries. The legislation modifies the Texas Commission on Human Rights Act and the Texas Workers Compensation Act, but unfortunately can not shield employers from the Americans with Disabilities Act which prohibits such inquiries. Referred to Business & Industry. Testimony taken on March 4, 2003 still pending in committee.

H.B. 355 and H.B. 356 Harold Dutton (D – Houston) These are two education leave bills, similar to some of the amendments that have been suggested for the federal Family Medical Leave Act. One would require employers to give time off to employees to meet with teachers, counselors or principals; the other to attend certain school activities. The bills also create new causes of actions against employers for refusing to provide the time off. Referred to Economic Development. Public hearing on March 19, 2003, pending in committee.

H.B. 359 and H.B. 371 Harold Dutton (D – Houston) These two bills attempt to limit the use of mandatory arbitration. The first would prohibit arbitration of Texas Commission on Human Rights Act or Title VII claims, the second would prohibit mandatory arbitration until an employee had worked for an employer for at least 90 days. Even if these bills were to pass, if the agreement were covered by the Federal Arbitration Act, these restrictions would be pre-empted. Most, but not necessarily all, employment relationships will be covered by the FAA. Referred to Economic Development. Public hearing on March 19, 2003, left pending in committee.

H.B. 574 Jessica Farrar (D – Houston) Amends the Texas Commission on Human Rights Act to prohibit discrimination against individuals on the basis of their sexual orientation or gender identity. It would also protect anyone from being treated differently because of the sexual identity of individuals with whom the employee associates. Referred to Business & Industry. Public hearing on March 25, 2003, left pending in committee.

H.B. 624 Jose Menendez (D - San Antonio). Basically a refined version of Representative Moreno's H.B. 281 which prohibits use of mobile phones while driving. This version has more definitions, some exceptions for emergency calls, and a range of fines that increases if the violation occurs in a school zone. Referred to State Affairs. Testimony taken on March 3, 2003, still pending in committee.

H.B. 705 Burt Solomons (R - Carrollton) Provides a defense against a claim of negligent hiring for employers whose employees enter another's home for purposes of repairs or delivery of goods. The defense would only be available if the employer obtained a criminal record from the Department of Public Safety. The bill gives the employer the right to have that access. Referred to Civil Practices. Public hearing held on April 2, 2003, left pending in committee.

H.B. 1018 Mike Villarreal (D – San Antonio) Would provide a preference by state and local governments for vendors who were certified as family friendly by the Texas Workforce Commission for providing employee dependent care benefits. Public hearing on March 10, 2003, pending in committee.

H.B. 1045 Joe Deshotel (D – Port Arthur) Creates an alternative base period for computation of unemployment compensation benefits to remove a period of extended medical disability. Referred to Economic Development. Public hearing on March 12, 2003, pending in committee.

H.B. 1360 Aaron Pena (D - Edinburgh) Amends existing state law with respect to penalties for discrimination against national guard personnel, by removing the current cap on damages which was limited to six months pay, adding punitive damages and utilizing the caps applicable to TCHR claims based on number of employees, with a maximum of $300,000 for compensatory and punitive damages by employers with more than 500 employees. An interesting choice, since it will be hard to argue against increasing penalties against employers who discriminate against those who might be called to serve in the Iraq conflict. Referred to Defense Affairs and State-Federal Relations. Public hearing on March 20, 2003, left pending in committee.

H.B. 3462 Mike Villarreal (D - San Antonio) Amends the Texas Commission on Human Rights Act and the Workers Compensation Act to make it clear that an employee's immigration status alone does not bar him from being covered. Referred to Border and International Affairs. Public hearing held on April 2, 2003. Committee substitute reported favorably on April 2, 2003. Vote reconsidered on April 3, 2003 and left pending in committee.

Grapevine Type Evidence Not Enough for Slander

Almost every employment defamation case features an element of grapevine knowledge, that is never attributable to any source. Although it seems obvious that such unattributed statements are not a sufficient foundation for a defamation claim, because it shows up in so many cases, it is always nice to have a case which has that explicit holding. Trostle v. Combs (Tx. Ct. App. - Austin 4/3/03) does so. It also threw out a more specific allegation for lack of evidence based on personal knowledge.

Retreat By First Court of Appeals - Movant for Temporary Injunction in Non-Compete Case Must Show Probable Harm

Resolving a dispute it created with the Beaumont Court of Appeals reported here last month, the First Court of Appeals has re-examined its holding in Norlyn Enterprises and reversed its opinion on the impact of Section 15.51 of the Texas Business & Commerce Code on traditional equitable principles for a temporary injunction. In Cardinal Health Staffing Network, Inc. v. Bowen (Tx. Ct. App. - Houston [1st Dist.] 4/3/03], it now holds that in order to obtain a temporary injunction in a non-compete case, a court must find that there will be irreparable harm. Interestingly in doing so, it points to two contrary decisions by the Dallas Court of Appeals in 1990 and 1993 and now respectfully disagrees with them. It also declines the invitation of Cardinal Staffing to adopt the 'inevitable disclosure' rule, saying it would not matter in this case even if adopted, but raising doubts about whether it should be. The opinion notes that Court voted to consider it en banc, presumably necessary since it was overruling a prior decision of the court.