DREAM Act Passes House, Awaits Fait in Senate

Yesterday the U.S. House of Representative narrowly passed (216-198) the DREAM Act. For more information about the specifics of the Act see our previous post. The Senate is scheduled to take a procedural vote on the Act today. Check back for updates.

Coles Corner Winning Wine: December 2010 (Archive)

Hip Chicks Do Wine 2007 Whole Berry Cabernet Sauvignon - Their labels are creative and their wine names are whimsical. Their 2007 Cabernet Sauvignon starts smoothly and finishes well while delivering excellent spice. The name “Whole Berry” suggests fruit and this Cabernet delivers with fruit forward flavors.

Coles Corner Winning Wine: November 2010 (Archive)

L’Archet’s 2006 Cuvée Occitane – The Cuvée Occitane blends the highly accessible Grenache with the bright fruit and spice of the Syrah. The Carignan and Mourvèdre add balance and fruit-forward flavors. Aged in French Oak, this blend is a terrific table wine.

‘Tis a Season to Be Mindful

As an eclectic nation of varying religious and non-religious people, the United States ever is evolving its customs to include, or more importantly to ensure it does not exclude, the varying religious beliefs found here. Not long ago, public school students received a “Christmas vacation.” Then, not to exclude other religious holidays around this time period, public school students instead received a “Holiday vacation.” Now, to ensure no one is excluded, public school students simply receive a “Winter vacation.”

Your workplace likely went through a similar change in designating office closures this time of year. The point of highlighting this change is not to debate whether we as a society are or are not overly politically correct or whether the distinction in names is or is not trivial. Instead, the point is that generally accepted customs, ideas, and thoughts change and evolve over time. Whether you are an employer, manager, supervisor, or co-worker, we all must be mindful that what once was generally acceptable in the workplace may now be considered discriminatory or harassing.

Under both Federal and Texas law it is unlawful for an employer to discriminate against a person based on that person’s religious beliefs. This means an employer cannot discriminate based on someone’s particular religious practice or lack thereof. These employment laws, however, do not preclude individuals from expressing their personal religious beliefs. As an employer or supervisor, though, you must be mindful about your religious beliefs and ensure your employees and/or subordinates do not believe they are treated differently because of their religious beliefs or because their religious beliefs do not align with yours.

With that said, celebrate the season as you wish. Just remember your obligations and responsibilities as an employer.

E-Waste Recycling Update

The E-Waste Recycling event we recently hosted in the parking lot of our building was a huge success. Many people came out and dropped off their old electronics. As a result, we collected over 1,000 pounds of old electronics for recycling! Thanks so much to everyone who came out. We have received a lot of positive feedback.

If you would like to see us host another one of these events, please drop us a line in the comments section and let us know. If we get enough interest, we'll host another one.

Dustin Paschal and Paul Simon Elected to DAYL Board

Election results for the Dallas Association of Young Lawyers Board of Directors were announced last Wednesday. We are pleased to announce that Dustin Paschal was re-elected to the Board of Directors for a second term and Paul Simon was elected to his first term on the Board of Directors. Congratulations to both.

The Coles Firm Hosts E-Waste Recycling Event

This Wednesday, November 10, 2010 from 5:00 p.m. until 7:00 p.m., we are hosting an e-Waste Recycling event in the parking lot of our building (the Reeder Energy building at 4925 Greenville Avenue). A truck and workers will be in the parking lot to unload and collect any old electronics you have. This includes computer monitors, televisions, batteries, cell phones, and more. The flyer above explains it all. Come out and bring your old electronics and do a little something to help our environment.

Coles Corner Winning Wine: October 2010 (Archive)

Ferrari-Carano 2009 Fumé Blanc – This non-traditional Sauvignon Blanc provides a nice balance between a classic buttery Chardonnay and a characteristic crisp and citrus-flavored Sauvignon Blanc. For those that do not like the extreme of either varietal, this wine is a perfect choice. It pairs well with traditional white wine pairings, but we enjoyed this wine by itself.

Mama's secret family recipe might not be so secret

A recent article published in D Magazine discusses a decision by the Dallas County District Court involving alleged secret family recipes at Gloria's, a local Dallas Mexican restaurant. According to the lawsuit, Gloria's sued a former employee for allegedly stealing Gloria's recipes and using the recipes at a new competing restaurant. The recipes, which Gloria's claims were passed down from family recipes, never were disseminated in writing to employees. The owner of Gloria's personally taught all the chefs the recipes from memory and kept the recipes in an undisclosed location. Despite these steps to keep the recipes secret, the Dallas County District Court found the recipes did not constitute a "trade secret" under Texas law.

Under Texas law, "a trade secret is any formula, pattern, device or compilation of information which is used in one's business and presents an opportunity to obtain an advantage over competitors who do not know or use it." From this language one would assume Gloria's recipes clearly give the restaurant an advantage over competitors, but Texas courts require more than a showing of competitive advantage. Texas courts examine several factors when determining a trade secret's existence, including the measures a business takes to prevent the trade secret's disclosure. While Gloria's took some protective measures, the Court's ruling indicates Gloria's failed to take enough measures.

Gloria's exemplifies a problem many employers face: failure to document. An important measure for protecting trade secrets is a requirement that employees sign non-disclosure and confidentiality agreements. Gloria's failed to take this important measure and unfortunately, Gloria's is left to compete against its own recipe.

Coles Corner Winning Wine: September 2010 (Archive)

Marc Bredif’s 2007 Vouvray – Made from the Chenin Blanc grape, this Appellation Vouvray Controlee is sweet without being heavy. Allow this wine to breathe to reduce its sharpness on the finish. Pairs well with mild cheeses and crème-based sauces.

Supreme Court Considers "Cat's Paw" Theory

The Supreme Court recently granted certiorari in Staub v. Proctor Hospital (09-400). It will hear and decide the case during its term opening in early October. The central question the Supreme Court will address is in what circumstances an employer may be held liable for unlawful discriminatory motives and actions by someone other than the decision maker. This theory of recovery is known as the “cat’s paw theory” and is taken from the 17th Century fable by French poet Jean de La Fontaine. In Fontaine’s fable, a shrewd monkey convinces a cat to steal chestnuts from a fire. While the cat burns her paw in the process, the monkey enjoys the fruits of the cat’s labor by eating all the chestnuts.

In employment law, “cat’s paw” typically arises under Title VII, the primary law related to workplace discrimination. In the Staub case, however, the theory arose under the Uniformed Services Employment and Reemployment Rights Act (USERRA). After an amicus brief by then Solicitor General Elena Kagan, and now, interestingly, a Supreme Court justice, the Court decided the Staub case is an ideal vehicle to address the lower courts’ inconsistent application of the law in “cat’s paw” cases.

Vincent Staub, a member of the Army Reserves, worked as an angiogram technician at Proctor Hospital in Peoria, Illinois. As a member of the Reserves, he attended required occasional weekend training in addition to two-week training during the summer. Staub’s supervisor, Janice Mulally, grew annoyed with Staub’s Reserve commitments. She frequently criticized the Reserves and intentionally scheduled him on weekends when he had training. In the weeks preceding his termination, Mulally disciplined Staub for “insubordinate behavior.” Considering Mulally’s dislike of Staub, the allegations were questionable. Despite this, the Vice President of Human Resources terminated Staub.

At the trial court, Staub asserted the decision maker adopted Mulally’s animus and, therefore, the decision would not have been made if not for Mulally’s discriminatory animus. The jury returned a verdict favoring Staub and awarded him $57,640. On appeal, the Seventh Circuit reversed and remanded the decision and held the “cat’s paw” theory only attributes the discriminatory animus of the non-decision maker to the decision maker when the non-decision maker is the only influence on the decision-maker. The Seventh Circuit ruled that evidence of “singular influence” of the non-decision maker and “blind reliance” by the decision-maker is necessary in “cat’s paw” cases. The Seventh Circuit found clear evidence showed while Mulally did influence the decision-maker, the decision-maker also relied on other information including Staub’s reputation for being a difficult employee and his history of discipline prior to Mulally’s supervision. Furthermore, the Seventh Circuit found the trial court erred in allowing the case to proceed to trial because the trial court should have determined whether the non-decision maker was the singular influence on the decision maker before determining whether the non-decision maker held discriminatory animus. Staub’s attorney contested this decision on the basis that it fails to hold employers accountable when several factors lead to the adverse employment action, including discriminatory opinions from those the decision-maker consults before making the ultimate decision.

The Seventh Circuit essentially articulated a very narrow interpretation of the “cat’s paw” theory by requiring singular influence by the non-decision maker. We do not know how the Supreme Court will decide the case but some speculate that, given its ideological composition, the Supreme Court likely will affirm the Seventh Circuit opinion. Check back here for regular updates.

Sue the Bully?

What does a workplace bully look like? It may be a boss who screams at subordinates, one who writes false evaluations for good employees in order to put their jobs at risk, or one who sets impossible standards.

Recent studies indicate that bullying in the workplace is on the rise. Zogby International’s 2007 study found that 37% of workers had been bullied at some time throughout their career. Furthermore, a recent University of Phoenix study asserts that the recession is to blame: so-called serial bullies have more justification for bullying, and normal managers now have the sense that they need to extract as much output from as few employees as possible – leading to more instances of workplace bullying. Just days ago, the New York Times reported that The Virginia Quarterly Review has suspended publication for a period following the suicide of its Managing Editor. According to press reports, the Managing Editor’s family claims he had been repeatedly bullied by the top editor of the magazine.

While legal protections exist under existing laws for workers who suffer abuse due to their membership in a protected class (race, ethnicity, sex, age, religious persuasion), ordinary workers who undergo malicious treatment from their superiors have no recourse.

Sixteen states are now considering laws to change this. The New York State Senate passed legislation in May, entitled The Healthy Workplace Bill, which would enable workers to sue for physical, psychological, or economic harm due to abusive treatment at work. The New York state assembly will consider the bill next year and, if the bill passes, employees demonstrating they faced a hostile environment due to a workplace bully could win lost wages, medical expenses, compensation for emotional distress, and punitive damages. In order to recover, the employee must prove that the bullying was done with malice and usually that it occurred repeatedly. Companies who investigate in a timely manner and take measures to correct the problem will have access to affirmative defenses.

This legislation no doubt will add a higher regulatory burden and increase (perhaps dramatically) the number of employment lawsuits. We want to know what you think about this. Do you think this kind of legislation is helpful or problematic? Let us know with your comments below.

Coles Corner Winning Wine: August 2010 (Archive)

Pali Pinot Noir Riviera (Sonoma Coast) 2008 - This smooth wine carries a distinct dark fruit flavor and finishes nicely on the palate. It is light enough to be a summer red yet substantial enough to pair with meat and poultry.

Update: Wal-Mart Appeals Million Plaintiffs' Class Action

You may remember our May 13^th post here about the Ninth Circuit ruling that a class action lawsuit against Wal-Mart, involving over 1 million plaintiffs, could proceed to trial. As predicted, Wal-Mart has appealed to the Supreme Court to overturn the ruling. As a brief refresher, the class action lawsuit, Dukes v. Wal-Mart, claims that Wal-Mart and Sam’s Club systematically discriminated against their female employees by paying them less than male employees, and offering females fewer and less frequent promotional opportunities. At issue is not whether the discrimination occurred, but whether over a million people will be allowed to make this collective claim through a class-action lawsuit, rather than individually or in smaller groups.

Wal-Mart’s main argument is based on the grounds that the proposed class of plaintiffs is far too large and individualized to qualify. In its petition to the Supreme Court, Wal-Mart argued, “the class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines and Coast Guard combined – making it the largest employment class action in history by several orders of magnitude.” It also argued that the Ninth Circuit contradicted earlier Supreme Court and appeals courts’ decisions, and that it improperly frees the plaintiffs of the burden to prove each individual plaintiff had been directly injured by Wal-Mart’s practices.

Some legal experts suggest that if the Supreme Court sides with the plaintiffs and lets the lawsuit proceed as is, it could cost Wal-Mart over $1 billion in damages. Furthermore, the implications for future class action certification procedures will be very far reaching. It is unknown whether the Supreme Court will decide to hear the case, but we will keep you updated. Check back in late Fall for more information.

Coles Corner Winning Wine: July 2010 (Archive)

Momo 2009 Sauvignon Blanc - Cultivated in New Zealand's lush Marlborough vineyards, Momo's Sauvignon Blanc provides noticeable flavors of apple and pear. This Sauvignon Blanc stays true to its herbaceous roots but does not overpower with its grassy notes.

Coles Corner Winning Wine: June 2010 (Archive)

Simpson Vineyard 2008 Miner California Viognier – This wine is reminiscent of a Chardonnay absent the traditional oak flavor. Miner’s Viognier is a perfect Summer alternative to the Sauvignon Blanc and Pinot Gris.

Texas Supreme Court Hands Employers a Big Win

Defending a sexual harassment lawsuit just got a little easier in some respects for employers in Texas. On June 11, 2010, the Texas Supreme Court issued an opinion in Waffle House, Inc. v. Cathie Williams. The facts of this case (which we will briefly summarize below) gave rise to a typical sexual harassment lawsuit in Texas - a sexual harassment cause of action against the company under Chapter 21 of the Texas Labor Code, an assault cause of action against the offending employee, and a negligent retention and supervision cause of action against the company.

In this case, the Plaintiff Cathie Williams alleged a co-worker, Eddie Davis, regularly sexually harassed her and assaulted her. Specifically, Williams claimed Davis made unwanted sexual comments and gestures and flirted with Williams. Williams also alleged Davis pushed her into counters and the grill, held her arms with his body pressed against her, and rubbed his arm against her breasts. Ultimately, Williams sued Waffle House and Davis for the causes of action we outlined above (she later dismissed the assault claim against Davis).

A jury found in favor of Williams and Waffle House appealed. The 2nd Court of Appeals in Texas upheld the jury's verdict and Waffle House appealed to the Texas Supreme Court. Waffle House contended the negligent supervision and retention cause of action should fail as a matter of law because Chapter 21 of the Texas Labor Code is the exclusive remedy for workplace sexual harassment.

In a 7-2 opinion, the Texas Supreme Court held Chapter 21 of the Texas Labor Code is the exclusive remedy for workplace sexual harassment and, therefore, preempts any negligent retention and supervision cause of action when such a cause of action is "entwined with the complained-of harassment." Essentially, the majority held the assault about which Williams complained (and which supported the negligent supervision and retention cause of action) arose from the "same boorish and objectionable conduct." The majority stated Davis' "conduct was assaultive because of the sexually offensive and provocative nature of his verbal and physical contacts with Williams."

As a result of the Texas Supreme Court's decision, the great majority of negligent supervision and retention claims filed in conjunction with sexual harassment claims will now fail. The Court did point out, however, Chapter 21 of the Texas Labor Code "does not foreclose an assault-based negligence claim arising from independent facts unrelated to sexual harassment," but such claims are rare.

Accordingly, the question moving forward becomes whether or not an alleged assault is independent of the alleged sexual harassment. More succinctly stated, is the assault sexual in nature? As the dissent pointed out in this case, that is often a fine and blurred line. For the time being, though, employers should be pleased with this decision.

Update: U.S. Supreme Court Decides Texting Case

Last week, the United States Supreme Court issued a decision on the texting case we blogged about here and here. We will not recount the facts here, but in a unanimous decision, the Supreme Court upheld a police department's search of a police officer's personal text messages on his department-owned pager. The Supreme Court held the search did not violate his constitutional rights because it said the police department's search was reasonable. Most importantly, the Supreme Court did not outline any rules about privacy of workplace electronic communications. It seems this issue will be a case by case determination moving forward. Was this decision right?

Coles Corner Winning Wine: May 2010 (Archive)

2009 Chukker – Happy Canyon Vineyard’s 2009 Chukker is a delightful blend of cabernet fran, merlot, and cabernet sauvignon. This Summer red has rich fruit flavors, with a spicy finish. With its smoky notes, an excellent wine to bring to your next bar-b-que.

Recent 5th Circuit Decision Sheds More Light on FLSA Requirements

On May 27, 2010, the 5th Circuit Court of Appeals issued a decision interpreting the Fair Labor Standards Act’s (FLSA) differentiation between “regular rate” and “per diem” payments. In Gagnon v. United Technisource Inc; AIS Tech Services Inc., the 5th Circuit determined the employer deliberately violated the FLSA by paying a low hourly rate with an offsetting “per diem.” The employer in Gagnon agreed to pay the employee $5.50 per hour (approximately minimum wage at that time) for “straight time” and $20.00 per hour for overtime. In addition, the employer agreed to pay the employee $12.50 for every hour he worked each week up to 40 hours per week or a maximum of $500. The employer referred to this as “per diem.”

The Court determined that pursuant to the FLSA, the employee's hourly regular rate was $18.00 ($5.50 “straight time” plus $12.50 “per diem”). As such, the employer owed the employee $27.00 per hour for overtime. Particularly important in the Court's finding that the $12.50 per hour “per diem” should be considered regular rate was the fact the “per diem” was an hourly calculation as opposed to a flat rate based on travel expenses, living expenses, etc. The Court also looked at the hourly rate of pay for similar jobs at other companies and found the hourly rate varied from $18.32 to $24.00, well above the $5.50 the employer in Gagnon paid.

Whether the employer deliberately circumvented the FLSA requirements or not, the lesson all employers should learn from Gagnon is the FLSA’s payment requirements are complicated. Many terms we commonly hear such as “salary,” “overtime,” “exempt,” and “non-exempt” have different meanings under the FLSA. A mistake in properly paying employees can cost an employer greatly down the road, especially because the FLSA permits attorney’s fees and doubling the amount the employee is owed in certain circumstances. It is always best to consult with your attorney on any and all pay practices and employee classifications (especially when you have complicated and/or unique pay practices).

Arbitration Agreements: Common Place in Sports World, But Are They Good for the Common Employer?

If you follow sports news with any type of regularity, you probably can recall a dispute between a player and team which involved arbitration (i.e. Terrell Owens' dispute with the Philadelphia Eagles). Whether it is a dispute over how much money a team must pay a player or whether a team can suspend a player, the dispute is rarely played out in open court. Instead, the parties head to arbitration and have an arbitrator decide the merits. Recently a New Orleans Saints employee brought a lawsuit against the team alleging wrongful termination. The Saints invoked an arbitration clause in the employee's employment agreement and now the dispute will be decided by an arbitrator.

In the employment arena, arbitration clauses are becoming more common. This swing in favor of arbitration likely is driven by preconceived benefits of arbitration. Those preconceived benefits include: moderate costs ("potential" - see disadvantages below), expedited resolution, and confidentiality. While these preconceived benefits generally are true, an employer should keep in mind the disadvantages of arbitration. One disadvantage an employer needs to remember is that an employment arbitration generally requires the employer pay the arbitrator's fees for both parties. An arbitrator's fees can add up quickly in a contentious dispute. Another potential disadvantage is an arbitrator's propensity to "split the baby." This is not meant to be a slight on arbitrators, but the unfortunate truth is, arbitrators make money by repeat business. If the employee's lawyer does not like the outcome, that lawyer as well as other plaintiffs' lawyers will not select that arbitrator. Keep these advantages and disadvantages in mind as you evaluate whether to continue or begin using mandatory arbitration clauses in your employment agreements.

United States Supreme Court Issues Key Disparate Impact Ruling

Yesterday, the United States Supreme Court issued a key decision in a disparate impact case involving written exams in the City of Chicago firefighter application process. In a unanimous decision written by Justice Scalia, the Supreme Court discussed an issue of high importance to employers.

In 1995, the City of Chicago required all firefighter applicants take a written examination. The City announced in January 1996 that it would draw random candidates from the applicants that scored at least 89 out of 100 points. These applicants were designated as "well qualified." Applicants scoring between 65 and 88 were designated as "qualified" and were told they would be kept on an eligibility list. Any applicants that scored below 65 were informed they failed the exam and would not be considered for any firefighter positions. In March 1997, a group of black applicants that scored in the "qualified" range filed Charges of Discrimination with the EEOC and received Notices of Right to Sue. They ultimately filed suit and the lower court certified their lawsuit as a class action. The firefighters prevailed at the lower court level. On appeal, the Seventh Circuit reversed the lower court's decision and found the lawsuit was untimely because the earliest EEOC Charge of Discrimination was filed more than 300 days after the January 1996 decision to sort the test scores into three categories. The firefighters appealed to the Supreme Court.

As an initial matter (and as pointed out by Justice Scalia in the opinion), Title VII of the Civil Rights Act of 1964 prohibits employers from using practices (even if those practices are on their face non-discriminatory) that cause a disparate impact on the basis of race. Tests such as those at issue in this case are often the impetus for disparate impact cases. Title VII also requires plaintiffs to file a Charge of Discrimination within 300 days of the complained-of act prior to filing a lawsuit. The firefighters in this case argued that each time the City used the test scores to make a hiring decision, a new disparate impact cause of action accrued which began the 300 day deadline. The City argued the January 1996 decision to sort the scores was the only relevant date for disparate impact purposes and that each hiring decision thereafter was not a new discriminatory act because the City was only implementing the prior January 1996 decision.

The Supreme Court held that each hiring decision gave rise to a new disparate impact claim. The Court based this decision on the language in Title VII itself that states a plaintiff establishes a disparate impact claim when he or she shows an employer "uses a particular employment practice that causes a disparate impact." The Court said the City's exclusion of applicants (based on test scores) in each round of selection was a "use" as defined by Title VII. Thus, each hiring decision started the 300 day clock and the firefighters in this case timely filed Charges of Discrimination.

So what should employers take away from this key decision? It is important for any employer that utilizes tests and other similar employment practices that may create a disparate impact on its employees to constantly re-evaluate those practices and their impacts. An employer cannot avoid a lawsuit simply by relying on the fact the practice was implemented years ago. If an employer still makes decisions based on the practice at issue, each new decision gives rise to a potential cause of action. Employers, make sure your practices are sound and stay diligent and up to date.

The Forgotten Side Effect of a Troubled Economy - Lower Employee Morale

We recently read a fascinating article on MSNBC.com about the affect of corporate crises on employee morale. We will not recite the article here but certainly encourage you to read it if you are a business owner or find yourself in the management world with employee oversight and responsibility. The article reminds us of a company's most important asset - its employees. We here at The Coles Firm P.C. have highlighted the importance of employees and employee morale before but it never can be discussed too much.

As the article points out, when companies suffer economic, PR, or other crises, it is often the employees that are hardest hit. Unfortunately employees' troubles often are overlooked in favor of the more salacious media tidbits like crooked executives, insider trading, and coverups. What we often do not think about, though, are the front line employees that lose their jobs because the company must shut down or downsize or cut costs as a result of the crisis.

As the article points out, great companies have strong leaders who will focus on the company's employees and address the employees' concerns and fears directly, openly, and honestly. As a manager, you may not always have the answer an employee wants to hear but that does not mean you stick your head in the sand and avoid the issue. A fearful and uninformed employee is not a productive employee.

The amount of books and information about employee morale is staggering. You may feel there is a secret or a method you must use to have happy employees. That is just not true. There is no magic way to make happy employees. It's very simple. Treat your employees like they are your company's best asset. It does not matter how you do that (whether it be incentives, awards, recognition, an understanding of their issues, or a simple thank you). All that matters is that you do it. You will see your productivity increase and your business thrive.

Wal-Mart Takes a Hit on the Legal Front

If you have followed business news in the past week, you may have noticed some major developments in a class-action lawsuit against the world’s largest employer, Wal-Mart. On Monday, the 9th Circuit Court of Appeals voted 6-5, allowing a class-action lawsuit go to trial in what may potentially be the largest employment discrimination class-action suit ever. The crux of the lawsuit is whether Wal-Mart discriminates against its female employees by paying them less and limiting their opportunities for advancement. While the lawsuit began in 2001 with allegations from six women who worked in 13 of Wal-Mart’s 3,400 stores, the final class of litigants may well include every woman who has worked at Wal-Mart since 2001 – over 1.5 million women. Now that the appeals court has certified the class, Wal-Mart will likely challenge the decision at the Supreme Court. Let us know your thoughts on the potential impact of the 9th Circuit’s decision. Do you support a class-action lawsuit involving 1.5 million plaintiffs (as the plaintiffs’ attorneys have argued) or do you think plaintiffs should individually pursue claims at the specific Wal-Mart locations that employed them (as Wal-Mart has argued)? Is there a middle ground? We welcome your comments below.

UPDATE: Supreme Court Hears Arguments Regarding Workplace Privacy

At the end of last year we asked whether an employee should have an expectation of privacy regarding emails, text messages, etc. that were received and sent on company-owned equipment (previous post). The majority of reader responses favored the employers' right to monitor employees' communication. Luckily we should have an answer to this question from the Supreme Court in June. According to one report, the Justices appear to side with the employer. However, this same report indicated Chief Justice Roberts criticized the employer's decision to look at the text messages. Until June though, we can continue the right of privacy debate.

Coles Corner Winning Wine: April 2010 (Archive)

Lail Vineyards Blueprint 2008 Sauvignon Blanc - Lail's Blueprint Sauvignon Blanc is not the classic herbaceous Sauvignon Blanc. Don't look for over-the-top grassy notes. It offers an earthy nose that suggest a more intense wine, perhaps reminiscent of a Semillon. On the palette this wine has citrus notes combined with a slight hint of carbonation and still honors the Sauvignon Blanc grape and its traditional flavors.

New State Immigration Laws

If you have watched the news this past couple weeks, you are likely well aware of the new immigration law passed in Arizona. This new law, which many proponents and opponents agree is the strictest immigration law in recent generations, requires immigrants to always carry immigration documents or face criminal prosecution. The purported intent of the new law is to identify and detain illegal aliens. Critics, however, fear the new law leads to racial profiling by the police. According to critics, this new law allows police to question any Hispanic-looking person about their citizenship and status. Arizona's immigration law will not go into effect until August or September. In the mean time, however, expect several attacks on the constitutionality of the law, as well as possible Federal government involvement. We will also need to wait and see if other border-states follow Arizona's lead and pass similar immigration enforcement laws.

While we wait for the courts and the Federal government to weigh in on Arizona's new immigration law, what do you think of the new law? If you disagree with the law, do you have any suggestions to deal with Arizona's ever-increasing issues with illegal aliens?

Coles Corner Winning Wine: March 2010 (Archive)

EOS Estate Winery 2005 Cupa Grandis Petite Sirah - If you are a fan of dark fruit and smooth finishes, the 2005 Cupa Grandis will deliver that and more. As a Petite Sirah, this wine provides an unadulterated version aged in French oak. The rich, deep color hints at the complexity of the wine and we enjoyed the multi-layered and structured approach from EOS Estate Winery.

Age Discrimination Claims Increasing...But Also Harder to Prove

Growing up, most of us were taught to respect our elders. Recent trends, however, show that many people may have forgotten how they were raised. A recent online Newsweek article highlighted not only this disturbing trend but also how much more difficult it is for age discrimination victims to prevail.

According to the article, the U.S. Equal Employment Opportunity Commission recorded a seventeen percent (17%) increase in age-discrimination complaints since the current recession began in 2007. The article points out that as the economy suffers, companies usually lay off older workers (i.e. higher wage earners) first. We've often encountered cases like this in our practice - companies can not continue with their current wage costs and often seek to reduce those costs by terminating their highest wage earners. Most times, these high wage earners are the oldest workers. As the article points out, these claims are the easy claims to identify even when wages are used as a proxy for age.

As the article states, the more difficult age discrimination claims to identify and prove are those claims involving the hiring process. Most times, a rejected hire only learns that she or he has not been hired but neither learns the reason nor the identity of the individual who did get hired.

The Newsweek article also pointed out there are professions where age discrimination can be most common. One such area is in the Information Technology field. A recent article in ComputerWorld discussed how the nature of the information technology field itself pushes out elderly workers. The article attributed this push-out to high wages for older workers, the devaluation of experience and skills in favor of longer hours and higher work production, and the desire for laser-like focus on particular projects uninterrupted by "adult responsibilities" like childcare and families.

To make matters worse, all these age discrimination claims now have a much larger hurdle to overcome. In 2009, the U.S. Supreme Court issued its decision in Gross v. FBL Financial Services, Inc. (we previously discussed that decision here). As a result of that decision, individuals claiming age discrimination now must prove that age was the sole (or "but for") cause of the alleged discrimination. As the Newsweek article points out, this is extremely difficult to prove because so many factors can drive an employer's decision.

So what should we take away from all this? When examining cost-cutting measures, employers should be careful that they do not create an age discrimination claim and workers should strive to stay relevant and productive to avoid becoming a "cost saver." In any event, just as in life, we should strive to respect our elders in the workforce. More often than not, experience and wisdom matter.

Do Anti-Discrimination Laws Actually Have a Reverse Effect?

We recently came across a passage about the law of unintended consequences while reading the book Super Freakonomics. One particular paragraph noted that while the Americans with Disabilities Act (ADA) was passed to safeguard disabled workers from discrimination, data shows that there has actually been a net decrease in jobs for disabled Americans. Specifically, the book claims "[a]fter the ADA became law, employers were so worried they wouldn't be able to discipline or fire bad workers who had a disability that they avoided hiring such workers in the first place."

Do you believe that anti-discrimination laws actually have unintended consequences like those outlined in Super Freakonomics? Have you actually encountered any such unintended consequences? Do you think anti-discrimination laws are still necessary?

Paul Invited to Join Dallas Bar Foundation Fellows

We here at The Coles Firm P.C. would like to congratulate Paul Simon on his recent invitation to join the Dallas Bar Foundation (DBF) Fellows. The Dallas Bar Foundation provides financial support for law related research, publications, and forums, provides law related scholarships and education, and provides charitable and legal aid for the impoverished. Since 1981, the DBF has awarded more than $4.1 million.

DBF Fellows are attorneys who have demonstrated a high ethical standard and a commitment to the cause of justice and the welfare of the community. Election to the Fellows constitutes a high professional honor and we congratulate Paul on this great accomplishment.

Sports and Employment Law

We here at The Coles Firm P.C. hope you have not missed us too much in our brief absence these last few weeks. We're back now and while we were gone, we came up with a little something new for the blog. In addition to hearing from you this year on the blog, we decided to add a new regular post feature to the blog - sports. No, we won't be commenting on games and tournaments, and players (although ask any of us about that stuff and we'll most likely keep you busy for a while). Instead, we plan to talk about the intersection of sports and employment law. With that said, we have a great start to this new feature.

We recently read an article about a "charity clause" in Manny Ramirez' (of baseball's Los Angeles Dodgers) $45 million, two-year contract back in March 2009. What is this "charity clause?" Well, apparently there was a clause in Ramirez' contract that called for Ramirez to make a $1 million donation to the Dodgers Dream Foundation. The article went on to say that not only did other Dodgers players have "charity clauses" in their contracts, but so did Major League Baseball players from several different teams.

The idea became so prevalent (more than 100 players had such a "charity clause" in their contracts), that the MLB Players Association filed a grievance against Major League Baseball and claimed players should not be required to make donations to anyone.

Contracts have long been simply a matter of negotiation between the parties involved. In this case, Manny Ramirez negotiated for $45 million to play for the Dodgers and the Dodgers in turn negotiated for a $1 million charitable donation. Is it wrong of the Dodgers essentially to require Manny Ramirez to donate?

How many of you work for an employer and have had the following situation arise? Your boss (or boss' assistant on behalf of the boss) comes to you and tells you his or her child is selling some item as a fundraiser for school or a sports team or an after-school activity. Do you feel you have an option to tell your boss you are not interested in paying $10 for a bucket of cookie dough? What about during the holidays when someone starts collecting donations for Toys for Tots and everyone in the office donates? Do you feel you have the choice not to bring in a toy?

Don't get us wrong, we are all for charity. Charitable contributions provide for people who might not otherwise be able to provide for themselves. But how are these everyday work situations any different (albeit on a lesser scale) than requiring a major league sports player to donate a portion of his or her millions of dollars to charity? One might even argue these sports players are in a better situation than the general working public - the sports players can simply go negotiate with another team that does not require a charitable donation.

There is nothing illegal about what the Dodgers chose to do in Manny Ramirez' case. In fact, through their actions, the Dodgers actually help the less fortunate. But does that make it right? What would you do if your employer wanted to insert a "charity clause" in your employment contract?

Coles Corner Winning Wine: February 2010 (Archive)

Rombauer Chardonnay 2008 – Rombauer’s Chardonnay is a classic California wine, offering a delightful hint of oak that does not overpower the grape. Beginning smooth on the pallet, this Chard ends with a mult-layered finished.

Coles Corner Winning Wine: January 2010 (Archive)

January 2010: Lioco 2007

Pinot Noir. This is a Pinot

Noir of a different breed.

Not the light and playful

variety, this Pinot Noir

packs punch. An unfiltered

and unfined wine, the Lioco

Pinot Noir has spicy notes

and an earthiness

reminiscent of South

American wines like the

Malbec and Carmenere.

Dustin Wins 2009 DAYL Outstanding Committee Chair Award

The Firm wants to congratulate Dustin Paschal on his recent accomplishment of being named the 2009 DAYL Outstanding Committee Chair. Immediate-Past President, Dena DeNooyer-Stroh (pictured to the right) selected Dustin for the Award in recognition for his significant contribution to several DAYL Committees, including, Team Leadership, Historical, and Social.