In The News

Admittedly, we have been a little quiet here lately at The Coles Firm P.C. blog. Between our case load, some new projects we've been working on, and a hectic travel and event schedule, we have not been able to blog like we would like. That said, we are back.

To ease back into things, we thought we would highlight some employment issues that have been in the news lately and see if we can generate some feedback and comments from our followers.

First, The Equal Employment Opportunity Commission filed a lawsuit in El Paso, Texas against Starbucks for firing a dwarf. The former employee in question requested a stool to perform her job and Starbucks felt she posed a danger to customers and coworkers. The EEOC claims Starbucks' actions constitute disability discrimination. What do you think? Do you think Starbucks was right that the request posed a danger to customers and coworkers? Do you think Starbucks' actions constitute disability discrimination?

The second thing we noticed was an MSNBC article highlighting a growing trend among employers regarding a four day workweek. The trend actually has less to do with work-life balance and more to do with financial issues driven by the tough economy and budget concerns. The article also noted Utah's decision to transition all state workers to four day workweeks. In Utah, employee satisfaction improved, Utah experienced energy savings, and environmental issues improved. What are your thoughts? Is a four day workweek possible for all employers and companies? Does it make sense? Should we incorporate other flex schedules in the workplace? Is the five day workweek simply outdated?

Let us know what you think about these and other issues. We look forward to hearing from you.

Coles Corner Winning Wine: April 2011 (Archive)

Santa Margherita’s Prosecco – Often called “Poor Man’s Champagne,” Prosecco is typically sweeter than champagne. Santa Margherita’s Prosecco is a brut style sparkling wine more reminiscent of champagne than a traditional Prosecco. This Prosecco is a less expensive alternative to some higher end champagnes.

Coles Corner Winning Wine: March 2011 (Archive)

Bodega Tamari Reserva. 2009 Malbec. This Argentinian Malbec starts and finishes smooth, making this bottle of wine an easy red. Tamari’s subtle fruit flavors create a great table wine to enjoy at any time. We suggest pairing this wine with a sweet nutty cheese, such as a Manchego.

Coles Corner Winning Wine: February 2011 (Archive)

Hip Chicks Do Wine Drop Dead Red – A true Pacific Northwest wine, Hip Chick’s Drop Dead Red combines Oregon and Washington grapes into a bold red blend. This decidedly smooth blend carries a hint of smoke that lingers well after your first sip. You can’t miss this bottle on the shelves since Hip Chicks continues with their clever and witty labels and descriptions. Pick up a bottle tonight and enjoy.

Fifth Circuit Court of Appeals Rules that Private Employer Can Refuse to Hire Individual Based on Individual's Previously-Filed Bankruptcy

Chapter 11 of the United States Code section 525(a) prohibits a governmental unit from denying employment to an individual who has filed bankruptcy. The governmental unit also is prohibited from terminating the individual’s employment or “discriminat[ing] with respect to employment against” an individual who has filed bankruptcy.

A subsection under this Chapter prohibits private employers from “terminat[ing] the employment of, or discriminat[ing] with respect to employment against” an individual who has filed bankruptcy. This subsection is silent as to whether “discriminat[ing] with respect to employment against,” includes refusing to hire based on an individual’s previously-filed bankruptcy.

On March 4, 2011, the U.S. Court of Appeals for the Fifth Circuit held that Chapter 11 of the United States Code section 525(b) does not prohibit a private employer from refusing to hire an individual based on the individual’s previously-filed bankruptcy. The decision is Burnett v. Stewart Title, Inc., Case No. 10-20250. The facts are straightforward and quite common. Ms. Burnett applied for a job with Stewart Title, Inc. and Stewart Title, Inc. offered Ms. Burnett the job contingent on passing a drug test and background check. During the background check, Stewart Title, Inc. discovered Ms. Burnett previously filed bankruptcy. For that reason, Stewart Title, Inc. revoked its employment offer. Ms. Burnett then filed a discrimination lawsuit under 11 U.S.C. § 525(b).

In dismissing Ms. Burnett’s lawsuit, the Court noted section 525(a) specifically prohibited the government from refusing to hire based on bankruptcy status, but Congress omitted this language as to private employers in section 525(b). Accordingly, the Court reasoned Congress’ omission indicated an intentional differentiation between government and private employers’ rights to discriminate. As such, the Court determined that Ms. Burnett could not bring a lawsuit based on the claim Stewart Title, Inc. (a private employer) refused to hire her based solely on the fact she previously filed bankruptcy.

Coles Corner Winning Wine: January 2011 (Archive)

Ninety Cellars’ Lot 17 Merlot – Deceptive in name, Lot 17 Merlot blends Merlot, Cabernet Sauvignon, and Cabernet Franc resulting in pleasantly smooth and smoky opening note. This blend provides the traditional bold flavor of a Merlot, but lacks the dryness often associated with a Merlot. We recommend this Merlot to those of you who believe a Merlot should be left on the rack.

New Health Care Law Contains Provision to Amend FLSA

The new health care bill recently signed into law by President Barack Obama contains a little known and often overlooked provision about which all employers should be aware. The provision amends the Fair Labor Standards Act (FLSA) and employers now will be required to provide women with breaks to breastfeed, as well as a location to breastfeed.

Such requirements already exist in sixteen states but the requirement now will be a federal law. Under the law, employers must provide reasonable time and a place for nursing mothers to express breast milk for one year following the child’s birth. The location must be something other than a bathroom, shielded from view, and free from intrusion by coworkers and the public.

In light of the potential burden imposed and the logistical concerns (such as how to provide bus drivers, postal workers, police officers and other mobile workers a place to breastfeed), the Department of Labor Wage and Hour Division is seeking public comment before it begins writing guidelines for the new law. The public can comment through February 22, 2011 at http://www.regulations.gov/#!home. We encourage employees and employers alike to comment and provide their perspectives on this new law.

New U.S. Supreme Court Decision Regarding Retaliation

Yesterday, the United States Supreme Court ruled that an employer violated Title VII when the employer terminated an employee’s fiancée three weeks after the employee filed an EEOC Charge against the employer. See Thompson v. North American Stainless, LP, 2011 WL 197638 (Jan. 24, 2011). The Supreme Court confirmed that although the fiancée did not engage in a protected activity, the employer could not retaliate against the fiancée because the action might have “dissuaded a reasonable worker from making or supporting a charge.” This decision should not surprise an employer, but the Supreme Court did note the difficulty with determining the type of relationship needed in this circumstance. Will a boyfriend/girlfriend relationship support a retaliation claim? What about very close friends? While the Supreme Court refused to draw a line, the Supreme Court stated firing a close family member almost always equals retaliation, while firing a “mere acquaintance” almost never does. We will wait for the lower courts to draw the line between “close family member” and “mere acquaintance.” Meanwhile, employers must be mindful that courts interpret Title VII retaliation broadly and employment actions against a complainant’s relatives or close friends might constitute retaliation.

Determining the Appropriate Discipline

If you are a college football fan you might have read that ESPN recently fired a play-by-play announcer for making a sexist remark to a female co-worker. If you haven’t seen the article, the background story is that during the pre-game production meeting for the Chick-fil-A Bowl game, the announcer told his female co-worker “Listen to me, sweet baby, let me tell you something …” After the co-worker told the announcer not to use that language with her, the announcer responded with “OK then, listen to me, assh*le.” ESPN terminated the announcer a few days after the comments were reported to management.

ESPN’s handling of this situation raises an interesting discussion regarding appropriate employee discipline. Most employers have varying levels of discipline ranging from verbal warning to demotion to termination. The question the ESPN situation raises is when should an employer issue a verbal warning versus a demotion or termination?

The law allows an employer to minimize liability from discrimination or harassment lawsuits if the employer can show it took “prompt remedial action” regarding the wrongdoing. Prompt remedial action is often a question for the jury and, therefore, the jury will determine if the employer issued sufficient and appropriate discipline. An employer should show the jury that the employer (1) had an anti-discrimination/harassment policy, (2) trained its employees about the policy, (3) quickly investigated any complaints, and (4) if the investigation revealed a policy violation, the employer issued appropriate discipline. Appropriate discipline is often shown when the employer followed the progressive discipline outlined in the company policy and the discipline stopped the wrongdoing.

In the ESPN case, according to the New York Post, the announcer had a history of making sexual comments towards female co-workers. The prior history of comments probably made it more necessary for ESPN to terminate the announcer as opposed to issuing a lesser disciplinary action. Since ESPN terminated the announcer instead of suspending or demoting the announcer, we’ll never know if a jury would have determined a lesser disciplinary action was appropriate.

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.