Flirting at Work?

secret    Workplace flirting is not rewarded even in environments where it is encouraged, according to this interesting article on a recent study of law firms. On a related note, our experience in representing both the harassed and those accused of harassing, in both the federal and private sector, is that there remain a large number of managers–even at very high levels–who consider their position of power a license to sexually harass those working for them.

    Gentlemen: a good rule of thumb is that if you would not act that way at work if your mother or sister or wife were present, then you probably shouldn’t act that way in their absence either. An old standby alternative is, “How would what I’m doing look if covered on the front page of the Washington Post?”

A Smaller Whistle to Blow in Texas

whistle

The Texas Supreme Court has just ruled, in a case involving a University of Houston professor, that the state’s whistleblower law does not protect reports of violation of internal rules and policies.  The Texas law already was narrower than the federal employee whistleblower law.  This new ruling confirms that unless the rules being broken were adopted formally under a legislative grant of authority, the reporting of their violation is not protected.

Finding one fatal bullet insufficient, the Court added that the case also should be thrown out because the professor should have known better than to believe what he reported was a violation of the law.  While accepting the professor actually believed he was reporting something illegal, the court found that given his familiarity with the University’s rules and his former work as an attorney, he should have known better.

Finding two fatal bullets insufficient, the Court went on to rule that he failed to meet the element of having made his reports to a “law-enforcement authority.”  The University’s general counsel, the internal auditor, the CFO, and associate provost all got notice, but none had the authority to investigate or prosecute criminal violations of the law outside the university.  The fact the party getting the report might have a duty to pass it on to law enforcement was found irrelevant.

Lessons?

(1) Texas state and local government employees who want their disclosures to be protected should make sure what is being violated is actually law, not merely internal policy.

(2) Reporting to law enforcement really does mean reporting to someone with a badge or the ability to prosecute.

(3) While there are no blatant flaws in the Court’s reasoning here, keep in mind that overall odds of winning as an employee-plaintiff before the Texas Supreme Court continue to be only slightly higher than that you will live past 105.  The fact the court was not content to throw the case out on just one ground and stop there, as usual rules of judicial restraint might call for, reflects a willingness by the court to ensure employers (especially government ones) do not spend a lot of time fighting battles in court with their employees.

(4) If you are a Texas employer, you have just had another great day at the Texas Supreme Court (unless, as a taxpayer, you would rather we err on the side of encouraging government employees to blow the whistle).

Impact?  More Texas state and local employees will look the other way when they see something that appears improper, knowing the chances they’ll be protected if they report it have dropped another notch.

New Client Review via Avvo.com

We were pleased to receive notice of the review below being posted at lawyer review site www.Avvo.com

The outcome of any case depends on its facts, but our goal for every client to have this kind of experience.

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Avvo.com - Expert Advice When You Need It Most

Quality and compassion

Posted by a Employment client, about 22 hours ago. 

Overall rating
5 star rating  Excellent
Trustworthy
5.0 star rating  Excellent
Responsive
5.0 star rating  Excellent
Knowledgeable
5.0 star rating  Excellent
Kept me informed
5.0 star rating  Excellent
  • I recommend David Schleicher.
  • I used David 1-3 years ago.
  • David handled my Employment / Labor matter.
  • I have previously worked with 3-5 lawyers.
Mr. Schleicher represented me in an employment situation. He did a great job and was very helpful and supportive during a difficult process. I can’t recommend him enough.

New Client Comments Posted

Over on our “client praise” page you will see we just added these comments:

I cannot thank you enough for all your assistance over the years. You have been a godsend to me.”

and from another client:

“Your professionalism in dealing with the agency speaks louder in what it does not say directly than in what it does say. Your writing covers a very sharp filet knife designed to cut to the issue and get the result.  I also appreciate your continued calm, focused approach. You have more than earned any and all fees. I cannot imagine going through this without your guidance and support.”

As noted in the disclaimer on that page, every case is different and the outcome depends on the facts involved, but our goal is to leave every client as pleased as those quoted on the page.

How to lose a case in 10 days

If you are one of the rare clients or attorneys who want to lose your case, a recent decision in a federal employee discrimination suit provides valuable direction:

1.  Seriously fail to comply with the court’s rules–don’t settle for technical violations.

2.  Don’t cite to specific evidence in the record when you are fighting summary judgment.

3.  Avoid citing cases that apply to the particulars of your case–reference only very general principles.

4.  Fail to ask to correct your errors when noted in your opponent’s reply brief.

5.  Most of all, treat judges “like pigs, hunting for truffles”–don’t you dare direct them to your case’s strong points.

The case is RODRÍGUEZ-MACHADO v. SHINSEKI, ___ F.3d ___ (1st Cir. Nov. 21, 2012).  Worth a read.

Biz/Feds: Fewer After-Hours Emails, Orders the Boss

Outlook aspects

Today’s Washington Post reports that both private and public employers increasingly are telling staff to not spend their evenings and weekends answering emails. Some are trying to avoid overtime claims from non-exempt employees, others burnout. One of the villains here is that compulsion to cc: ten other people on every email–and then on the replies.

If Internet providers could figure out a way to charge a penny per recipient after the first fifteen, we might all be better off. If you are like me, you get way too many mass emails a day from people whose idea of a good time is forwarding political half-truths and other shocking (i.e., not fact-checked first at Snopes.com) news. Add spam to that burden.

Email is a marvelous productivity tool and can reduce legal expenses as compared to phone time. But when misused, it’s another curse of modern life.

Now, why not email this post to a 1,000 of your closet friends?

Biz/Feds: Secrecy and Litigation

Getting sued or about to sue someone else? There is an old saying from the New Testament that often applies: “For there is nothing hidden that will not be disclosed, and nothing concealed that will not be known or brought out into the open.”

Put another way, build into your calculation of the value of settlement versus fighting the potential damage from a formerly-closeted skeleton putting on some of your dirty laundry and dancing around in front of a jury.

The rules of evidence are intended to keep unrelated matters from distracting judges and juries. But your opponent’s lawyer is likely to give some thought to how to apply those rules in a way that makes it more likely incriminating facts will be found relevant to what is admitted into evidence.

As well, what you get asked by the other side’s lawyer in a deposition is generally much broader than what eventually is admitted into evidence. Unless a question is being asked to harass you, the fact it is not directly on topic generally is not a valid reason for you refusing to answer it. (Depositions are one of the reasons lawyers aren’t often winners of popularity contests.)

Don’t let a few stupid mistakes you’ve made keep you from pursuing justice—chances are the other side has made some too. But neither should you assume you can guarantee your most serious errors from the past will remain hidden.

Above all, give your lawyer a heads-up about your skeletons—because the more often your lawyer is surprised by what the other side uncovers about you and your claims, the greater the chances you will be surprised by how badly you lose.