Five Questions That Individual Employees Should Ask Before Hiring A Houston Employment Lawyer

Hopefully you will never need an employment lawyer in Houston. Luckily, there are many great Houston employment lawyers, and they work at firms all over the city. Some of them rank highly on Google search results, and others do not. Take your time and search thoroughly; do your research; and find someone who is the right fit for you and your case.

Here are questions we think you should ask before you select an employment lawyer in Houston:

1. Is the lawyer Board Certified in Labor and Employment Law by the Texas Board of Specialization, or does the lawyer devote a significant portion of his or her practice to employment law in Houston? Do not be afraid to ask potential lawyers how many years he or she has practiced as an employment lawyer and how many employment law cases he or she has handled. Such questions can be important in gauging the experience of your potential lawyers.

2. Has the Houston employment attorney actually tried and won big cases in front of juries and on appeal? Ask the lawyer how many trials and appeals he or she has “first chaired,” and what the results were in those trials. Results matter. If your case is going to trial, it makes sense to have a real trial lawyer representing your interests.

3. Is the lawyer asking you to pay money before he or she will take your employment law case? If so, for what purpose and does that purpose make sense to you? There are legitimate reasons a lawyer may ask you for money. Unfortunately, some lawyers ask for money for the wrong reasons. Before you turn over your hard earned money, you need to feel comfortable that doing so is both necessary and will positively advance your case.

4. Does your Houston employment attorney speak or write frequently before other employment lawyers? Such speaking and writing can suggest knowledge about the subject matter and visibility in the community.

5. Did the lawyer hint or outright tell you to lie to make your case stronger? Lying is wrong, and liars get caught. Lawyers who encourage this behavior are acting unethically and do not have your best interests at heart. Your case is not as important as your integrity.

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Posted in Houston Employment Law, Houston Executive Lawyer, Houston Retaliation Law

Confidentiality Agreements Used By Many Employers Draw KBR A $130,000.00 Fine From The SEC — Is Your Company At Risk Too?

Mark Oberti writes:

On April 1, 2015, the SEC took action against — including a $130,000.00 fine — a company over concerns that the company was preventing its employees from potentially blowing the whistle on illegal activity. The action is significant because the SEC was targeting typical language in a confidentiality agreement and there were no allegations that the company, KBR, Inc., was violating any substantive securities law.

The Dodd-Frank Act amended the Securities Exchange Act to provide for whistleblower incentives and protections in order to encourage individuals to report possible violations of securities laws, but the new law goes further than merely encouraging reporting. Under SEC Rule 21F-17, companies may not take action to impede individuals from communicating with SEC staff about possible law violations, “including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.”

Like many large companies, KBR has a compliance program to process complaints from employees concerning potentially unethical or illegal conduct. KBR has its own investigators who review these complaints and interview witnesses, including the individual who made the allegations. For many years KBR used a form confidentiality agreement in connection with its internal investigations. KBR’s investigators asked witnesses to sign the statement at the beginning of an interview. The form provided as follows: “I understand that in order to protect the integrity of this review, I am prohibited from discussing any particulars regarding this interview and the subject matter discussed during the interview, without prior authorization of the Law Department. I understand that the unauthorized disclosure of information may be grounds for disciplinary action up to and including termination of employment.”

The SEC asserted that this language violated Dodd-Frank and Rule 21F-17. Despite finding that (1) no employee was actually prevented form reporting potential law violations to the SEC, and (2) KBR had not tried to enforce the confidentiality agreement, the SEC nonetheless found that the offending language “undermines the purpose of Section 21F,” which is to encourage individuals to report to the SEC.

Without admitting wrongdoing, KBR agreed to (1) contact employees who had previously signed the agreement and advise them that they do not need permission from KBR’s legal department to report potential illegal activity to the government, (2) refrain from further violations , and (3) pay a $130,000 civil monetary penalty.

The SEC’s order in this case is a warning to other companies that may have similar, otherwise typical confidentiality provisions which are intended to protect privileged communications, and not intended or used to prevent employees from reporting potential law violations to the SEC. Moreover, the fact that the SEC’s action involved a company not even accused of actually preventing such reporting, or violating any substantive securities law, may signal that the SEC intends to be aggressive in searching out similar provisions in confidentiality agreements used by other companies for similar enforcement actions. Accordingly, employers should review their confidentiality agreements to ensure they do not run afoul of SEC Rule 21F-17 as interpreted by the SEC in this case.

Posted in Dodd Frank, Whistleblower

Texas Supreme Court Hands Victory To Employers In The Evolving Law Regarding Non-Competition Agreements

Mark Oberti observes:

On Friday, August 29, 2014, the Texas Supreme Court delivered another victory for employers seeking to enforce post-employment restrictions against former employees who seek to go to work for competitors. In Exxon Mobil Corp. v. Drennan, No. 12-0621 (Tex. Aug. 29, 2014), Drennan had worked for ExxonMobil for more than thirty years. During his employment, he received restricted stock pursuant to an Incentive Progam. As for the restricted stock shares that were outstanding at the time of Drennan’s resignation, ExxonMobil’s Incentive Program provided that ExxonMobil could cancel the shares if Drennan engaged in “Detrimental activity,” including becoming employed by a competitor of ExxonMobil’s. The Incentive Program also contained a New York choice of law clause.

After receiving a negative performance appraisal for the first time in his three decade career, and being told that ExxonMobil was replacing him in his position, but would try to find him another position, Drennan decided to resign. He accepted a job with Hess Corporation. Shortly thereafter, ExxonMobil informed Drennan that by doing so, he had engaged in “Detrimental activity” and thus his outstanding restricted shares — worth millions of dollars — were all cancelled. Drennan sued ExxonMobil for return of the shares. He lost in front of a jury, but the Houston Fourteenth Court of Appeals reversed, and ordered ExxonMobil to give him the shares. The Court of Appeals reached this conclusion by finding that: (i) ExxonMobil’s choice of law clause designating New York law was unenforceable as being against Texas’s fundamental public policy in regards to non-competition agreements; and (ii) under Texas law the “Detrimental activity” provision was unenforceable because it lacked a geographic or any other reasonable limitation. ExxonMobil appealed to the Texas Supreme Court.

The Texas Supreme Court found that the “Detrimental activity” provision was not a non-competition agreement. According to the Court, unlike a non-competition provision, ExxonMobil was not using the “Detrimental activity” provision to try to stop competition, but rather to reward continued loyalty. Since the provision was not deemed to be a non-competition agreement, then it was not against Texas’s fundamental public policy to enforce the New York choice of law clause. Under New York law the “Detrimental activity” provision was was enforceable because Drennan voluntarily resigned. As a result, ExxonMobil was within its rights to have cancelled the restricted shares.

During the previous eight years, the Texas Supreme Court had issued three prior pro-employer decision in non-compete cases. While it is technically true that the Court found that this case did not involve a non-competition agreement, the reality is that this case fits the trend towards finding non-competition agreements enforceable. Multi-state employers can now structure incentive compensation programs like ExxonMobil’s and thereby financially discourage employees from going to work for a competitor for fear of losing their restricted shares, or other incentive-based compensation. In addition, while the Court did not decide whether ExxonMobil’s “Detrimental activity” provision would have been enforceable under Texas law, it strongly hinted that it would have been. As such, this decision very arguably gives Texas employers the green light to implement incentive compensation plans with robust post-employment forfeiture provisions if the employee goes to work for the competition. While it is true that in such a situation the employer could not obtain an injunction against the employee if they went to work for a competitor — since they are legally allowed to compete under such a program — as a practical matter most employees forced to chose between keeping their entitlement to a seven-figure stock award and taking a new job with a competitor will probably not take a new job with a competitor. As such, this type of program would likely be especially effective in dealing with high ranking, highly compensated managers and executives.

Posted in At Will Employment, Houston Employment Law, Houston Executive Lawyer, Non Compete Agreements

The ADA Also Prohibits Discrimination Based On An Employee’s Relationship Or Association With An Individual With Cancer

We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace

In a little known part of the ADA, the law provides that it is unlawful for an employer to discriminate against an individual because of his relationship or association with an individual with a disability. 42 U.S.C. § 12112(a), (b)(4). More informally, this provision prohibits three types of discrimination against employees associated with, or related to someone with, a disability:

• Discrimination based on expense: where an employee suffers an adverse employment action because of an association with a disabled individual covered under the employer’s health plan, which is costly to the employer.

• Discrimination based on disability by association: where the employer fears that the employee may contract the disability of the person he or she is associated with (e.g., HIV), or the employee is genetically predisposed to develop a disability that his or her relatives have.

• Discrimination based on distraction: where the employee suffers an adverse employment action based on the employer’s speculation that they will be inattentive at work because of the disability of someone with whom he or she is associated.

Relying on this theory, the EEOC sued the employer in E.E.O.C. v. DynMcdermott Petroleum Operations Co., 537 Fed. Appx. 437 (5th Cir. 2013), the EEOC alleged that the employer had refused to hire an otherwise outstanding candidate because his wife had cancer. The district court threw the EEOC’s lawsuit out, but in 2013 the Fifth Circuit Court of Appeals reversed the district court’s decision and remanded the case for trial.

Posted in Disability, EEOC, FMLA, Houston Employment Law, Human Resources | Tagged , , , , , ,

Victims Of Disability Discrimination Have Short Time Limits To Act

We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace

Under the ADA, an employee has only 300 days to file an EEOC Charge of Discrimination from the date they learn the employer is going to, or has taken an action against them in violation of the law. Under a Texas state law version of the ADA, that deadline is only 180 days to file a Charge of Discrimination with the Texas Workforce Commission – Civil Rights Division. Furthermore, the 300-day or 180-day limits can be triggered by events far short of actual termination. Therefore, if you believe that your employer or former employer has discriminated against you based on a disability, perceived disability, or record of disability – such as cancer – it is imperative to comply with these deadlines.

Posted in Disability, Discrimination, EEOC, FMLA, Houston Employment Law, Human Resources | Tagged , , , , , ,

The FMLA Provides Some Job Protection For Cancer Victims, But Is Very Technical

We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace

The FMLA provides up to 12 weeks of job-protected leave per year for employees suffering from a serious health condition. An employee is eligible for FMLA leave when he or she has worked for a “covered employer” at least twelve months, and worked “at least 1,250 hours of service with his employer during the previous 12 month period.” 29 U.S.C. §§ 2611(2)(A) & 2611(2)(B)(ii). To be a “covered employer” under the FMLA, a business must “employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year.” 29 U.S.C. § 2611(4)(A)(I).

Interference with FMLA rights includes “not only refusing to authorize FMLA leave, but discouraging an employee from using such leave.” 29 C.F.R. § 825.220(b). Furthermore, “employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions.” Id. § 825.220(c). For example, in Kinney v. Holiday Companies, 398 Fed. Appx. 282 (9th Cir. 2010), the employee took FMLA leave for cancer treatment, returned to work, and was fired a year later – shortly after her cancer returned. She sued under the FMLA, and presented evidence that the employer’s managers involved in the termination decision were aware that her cancer had returned and discussed whether she had taken FMLA leave shortly before she was terminated. The Court of Appeals concluded that “[s]uch evidence creates a triable issue as to whether her potential need for FMLA leave in the future was a negative factor in Holiday’s decision to terminate her.” Id. at 284.

The FMLA is a highly technical law. Employees and employers should generally not try to navigate it without guidance from experienced labor and employment lawyers, such as Mark Oberti and Ed Sullivan – both of whom are Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.

Posted in Disability, EEOC, FMLA, Houston Employment Law, Human Resources | Tagged , , , , ,

The EEOC Is Focused On The ADA Rights Of Employees With Cancer, Especially Ones With Reasonable Accommodation Issues

We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace

The Equal Employment Opportunity Commission (“EEOC”) is the federal government agency that investigates alleged violations of the ADA, issues guidance and regulations on the ADA, and has the authority to sue employers that it believes have violated the ADA. Since the the Americans with Disabilities Act Amendments Act (“ADAAA”) took effect in 2009, the EEOC has become very focused on cancer rights under the ADA, and particularly on employer’s obligations to make reasonable accommodations for the known disability-related workplace limitations of cancer victims.

For example, shortly after the ADAAA was passed, the EEOC brought suit in E.E.O.C. v. Journal Disposition Corp., NO. 1:10-CV-886, 2011 WL 5118735, (W.D. Mich. Oct. 27, 2011). There, the EEOC alleged that the employer violated the ADA when it refused to permit the cancer-stricken employee to work four hours a day, five days a week, every other week, for some period of time after his chemotherapy treatments ended. The employer moved to throw the case out without a trial, but the court refused to do so, instead finding that “[w]hether the accommodation proposed by Nelson was objectively reasonable is a question of fact for a jury.” Id. at *4.

Last year, the EEOC issued a guidance memorandum entitled “Questions & Answers about Cancer in the Workplace and the Americans with Disabilities Act (ADA).” The guidance is here. In the guidance, the EEOC explains that, “[a]n employer must provide a reasonable accommodation that is needed because of the limitations caused by the cancer itself, the side effects of medication or treatment for the cancer, or both. For example, an employer may have to accommodate an employee who is unable to work while she is undergoing chemotherapy or who has depression as a result of cancer, the treatment for it, or both.” The EEOC’s guidance is helpful to both employers and employees confronting cancer in the workplace.

Posted in Disability, EEOC, FMLA, Houston Employment Law | Tagged , , , , , ,

Cases Involving Employees With Cancer Who Are Fired Are Inherently High Risk, And Can Lead To Large Verdicts

We are blogging on Mark Oberti’s paper on the “5 Things Employers And Employees Need To Know About Cancer In The Workplace

The first thing to know is that cases involving employees with cancer who are fired are inherently high risk, and can lead to large verdicts.

Almost every juror has experienced the loss of a loved one from cancer. Thus, hearing about an employee with cancer who was fired is likely to immediately emotionally resonate with them. Given that reality, unless the employer has a very compelling – and objectively provable – reason for firing the employee, the employer could face a large adverse verdict.

For example, in 2010 a jury ordered Michaels Stores, Inc. to pay Kara Jorud, a former store manager, $8.1 million for firing her while she was undergoing chemotherapy after having being diagnosed with breast cancer. The jury found that Michaels violated Jorud’s rights under the Family Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”).

Just one week after undergoing surgeries, including a double mastectomy, Michaels’ district manager, Skip Sands, allegedly began calling Jorud daily, urging her to return to work—even though she was projected to need nine to 10 weeks of recovery time. Allegedly fearing she would lose her job, Jorud returned to work much sooner than the three months she was entitled to under the FMLA. She allegedly forfeited paid time off and cut her pre-approved vacation time. Notwithstanding, Sands allegedly continued to harass her, questioning her need for more time off. When Jorud told Sands she needed a Friday off for more chemotherapy treatment, he allegedly told her she needed to be back to work on the following Monday. Finally, in frustration, Jorud sent an email to human resources: “I am losing faith in the company that says, ‘Michaels Cares!’ It is disillusioning to me to think that a company that caters largely to women, with a large quantity of women employees, is trying so hard to get rid of a female manager because she was unfortunate to get a women’s disease!” Michaels allegedly did nothing. Ultimately, Jorud was fired a day before her next scheduled chemotherapy session.

One of Michaels’ initial allegations was that Jorud had stolen merchandise from the store. This backfired, however, when Jorud produced her sales receipt. Thereafter, Michaels claimed it fired Jorud for violating a company policy which prohibits employees from purchasing older and discontinued merchandise about to be thrown away. This too backfired, however, when Plaintiff produced several employees who testified that violating these policies were not fire-worthy, as they had done the same thing and were not terminated.

This case demonstrates that jurors are highly sympathetic to discrimination and retaliation claims by cancer-stricken employees. While managers and HR staff should be trained on employee rights under the FMLA and ADA, just knowing the rules is not enough when it comes to dealing with employees with cancer. In such cases, the rules must be implemented in a sensible, sensitive, morally upstanding, and respectful manner.

Posted in Disability, EEOC, FMLA, Houston Employment Law, Human Resources | Tagged , , , , ,

Cancer In The Workplace

Mark Oberti has written a paper on the “5 Things Employers and Employees Need to Know About Cancer in the Workplace.” We will prepare a series of blog posts about this important issue in employment law.

Posted in Disability, FMLA, Houston Employment Law, Human Resources | Tagged , , , , , ,

Post-Rimkus Duty of Preservation and Spoliation of Evidence Decisions (Part VIII)

We are blogging on “Non-competes, Trade Secrets, Fiduciary Duties, and the Inevitable Disclosure Doctrine.” Mark Oberti has prepared a detailed paper on all of these issues, which can be found here.

The following post discusses how other courts view Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In Doe v. Northside I.S.D., No. SA-11-CV-412-XR, 2012 WL 3236003 (W.D. Tex. Aug. 6, 2012) the Court looked at Rimkus in depth despite granting Defendants’ motion for summary judgment. Doe is a Title IX and § 1983 action against the school district, and teacher, and a vice-principal and arises out of inappropriate romantic relationship developed between a female teacher and her female middle-school student.

Sarah Doe was a middle school student in a Northside I.S.D. school. Nora Martinez was a teacher at NISD’s middle school for approximately 7 years. Sarah Doe’s parents allege that on January 23, 2011, they discovered that Nora Martinez, was having an inappropriate relationship with Sarah. The next day they went to the school and relayed their concerns and showed school administrators the cell phone text messages that they discovered. On January 24, 2011, Ms. Martinez admitted to an improper relationship and resigned her employment.

Id. at *1 (footnotes omitted).

During the discovery period, Plaintiffs argued that Defendant failed to preserve evidence including security camera footage and other electronic evidence, such as e-mails. The Court ruled in favor of the Defendant at summary judgment because Plaintiffs failed to show that the District had “actual notice” of the events nor could Plaintiffs show that District acted with “deliberate indifference.” However, the Court went on to discuss the preservation and spoliation issues raised by Plaintiffs and do a thorough analysis of Rimkus:

Generally, the duty to preserve arises when a party has notice that the evidence is relevant to litigation or should have known that the evidence may be relevant to future litigation. The duty to preserve extends to documents or tangible things by or to individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In this case Plaintiffs seek the sanction of an adverse inference instruction based on spoliation of evidence. Alternatively, Plaintiffs seeks the forensic examination of the computers assigned to Aslin, Liendo, Munson, Martinez and the NISD police department.

“It is well established that a party seeking the sanction of an adverse inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. at 615–16.

Doe, 2012 WL 3236003 at *8.

The Court decided “[u]nderstandably, given the offense committed against Sarah, and the District’s past mistakes in locating and producing relevant documents, Sarah’s parents and attorneys are wary that the District has fulfilled all of its discovery obligations. Plaintiffs, however, merely provide their subjective belief and conclusory statements that other emails must exist. This is insufficient to establish that sanctionable behavior has occurred.” Id. at *10.

Posted in Discrimination, Houston Employment Law, Houston Executive Lawyer, Non Compete Agreements, Trade Secrets