As Dallas employment dispute attorneys, we have seen multiple meritless age discrimination lawsuits, where older employees simply "felt" discriminated against. None of these lawsuits should be taken lightly, however, especially when the Equal Employment Opportunity Commission (EEOC) is involved.
]]> What Is Age Discrimination?Under The Age Discrimination in Employment Act of 1967 (ADEA) and Texas Labor Code Chapter 21, individuals who are at least 40 years old are protected from employment discrimination related to their age. An employer cannot discriminate against a person "with respect to any term, condition or privilege of employment," such as:
Employers are also prohibited from retaliating against an employee for bringing an age discrimination complaint.
The EEOC Age Discrimination Charge
If the employee doesn't come to you first about the age discrimination, you will receive a notice from the EEOC that an age discrimination charge has been made against your company. The EEOC will investigate the charge and may ask for you to explain your position, produce documents, and interview your employees.
You may be asked to mediate the dispute, which is a voluntary, non-binding effort to resolve the dispute by agreement. Age discrimination cases are often resolved during mediation.
On the other hand, you may choose not to mediate or make a settlement offer. The EEOC will then continue its investigation and make a determination as to whether there is cause to believe discrimination occurred. If it finds that there is no cause, it will provide the claimant a "right-to-sue" letter, which allows the claimant to pursue the claim in court. If the EEOC finds cause, however, it will so advise the claimant and either bring a case against the employer itself or provide the claimant a "right-to-sue" letter.
What Steps Should the Employer Take after Learning of a Complaint?
It's important that an employer immediately investigate as soon as it learns of the complaint, whether directly from the employee or from the EEOC. If its investigation reveals that no discrimination occurred, the employer should consider consulting an employment attorney before it determines how to proceed. The attorney may suggest additional matters to investigate or advise how best to respond to the complaint. Often, employers innocently respond to a complaint they believed had no merit in ways that are later interpreted as retaliation.
Retaliation is a separate claim employees may assert that does not necessarily require proof of the underlying discrimination. Experienced employment attorneys can help employers avoid taking such actions, and will also understand how to develop and present your evidence at mediation or before the EEOC.
The booklet explains how seniors are particularly vulnerable to financial abuse, resulting in losses of "more than $2.6 billion annually. Yet, four in five cases are not reported."
Download a free copy of the booklet from the CFP website: CFP Board Financial Self-Defense Guide
]]>Consumers may also bring complaints about businesses to the BBB, so it can have an impact on businesses' credibility and profitability. Accordingly, as a business owner or executive, being aware of the BBB and its accreditation system can be important.
]]> The BBB states its mission is to be the leader in advancing marketplace trust, and it aims to do that by:The BBB also states that its network of national and local BBB chapters allows it to monitor and take action on business issues that may affect consumers, including business litigation.
Importantly, though, the BBB is not a licensing organization, and businesses are not legally required to meet its standards or to seek BBB accreditation, but evidence that a business meets BBB standards or is accredited by the BBB could be useful if the business ever encounters allegations of inappropriate behavior in conducting its business.
Although the BBB is neither the only resource available to consumers for information on the quality and trustworthiness of a business, nor the only judge of businesses' behavior, consumers may find it a reputable voice. For this and other reasons, it may be beneficial for business owners and executives to pay attention to it, too.
Source: Dallas Better Business Bureau
]]>Accordingly, understanding past sexual harassment cases and their practical impact can help Texas employers protect themselves and their organizations from the problems caused by claims of sexual harassment in the workplace. Three U.S. Supreme Court cases are especially instructive.
First, a lesson imparted by the case Burlington Industries, Inc. v. Ellerth is that implementing and following anti-harassment policies can help protect employers from potential liability. Employers can defend against sexual harassment allegations by demonstrating that they have policies established to prevent, investigate and correct sexual harassment in the workplace. Also, employees can hurt their chances of winning a sexual harassment or other employment dispute by not following their employers' policies for reporting concerns.
]]> The case Oncale v. Sundowner Offshore Services, Inc. warns employers that employees can be sexually harassed by individuals of the same sex as well as the opposite sex. To bring a successful claim under federal law, an employee must show that the harassment was based on gender.Finally, school districts, colleges and universities may be held liable for sexual harassment committed by their employees, unless the educational organization was unaware of the alleged harassment. The case Gebser v. Lago Vista Independent School District, however, requires that alleged victims must notify the school of their claims before filing a lawsuit against the school.
Learning from past cases is one way employers may protect their businesses or organizations from the negative consequences of sexual harassment claims. State law may change some of the protections afforded employers, though, so it is important to consult with an experienced Texas business lawyer when creating, implementing and enforcing anti-harassment policies.
]]>Texas Trade Secret Law
Under Texas law, in order for a plaintiff to recover under a theory of misappropriation of a trade secret, he or she must prove: (1) a trade secret existed, (2) the trade secret was acquired through a breach of a confidential relationship or was discovered by improper means, (3) the defendant used the trade secret without the plaintiff's authorization, and (4) the plaintiff suffered damages as a result.
]]> Texas courts continue to follow the six factors used to identify a trade secret set forth in Restatement of Tort § 757, despite that § 757 was omitted from the Restatement (Second) of Torts and that the Restatement (Third) of Unfair Competition provides a slightly altered definition of trade secrets.The six factors followed by Texas courts are:
Guidance From the Uniform Trade Secrets Act
Beginning in 1984, states began to pass versions of the Uniform Trade Secrets Act (UTSA), which was a compilation of many court decisions governing confidential information. While Texas has not passed the UTSA and still relies on common law protections for trade secrets, the UTSA is consistent with Texas' six factors and offers guidance for those looking to protect information as a trade secret.
In order to show information is a trade secret, a person / company usually needs to demonstrate that:
Independent Economic Value
Courts are usually unwilling to protect customer lists if they are nothing more than information that anyone could get from a phone book. In order to show that a list deserves protection, a company needs to show that the list has economic value. Some ways to do that include:
Maintain Secrecy of the Information
A company also needs to show that it took reasonable steps to keep its customer list private. Some of the ways that businesses keep client lists secret are:
By implementing a few simple confidentiality policies, a business can go a long way in protecting the information that it worked so hard to collect and prevent others from unfairly capitalizing on its efforts.
]]>Increasing use of social media has led to a rise in investigations by the National Labor Relations Board (NLRB) of employers' social media policies and employees' potential violations of those rules. Disagreement, confusion or ignorance concerning employees' rights to make negative statements online about their workplaces has resulted in more than 100 complaints to the NLRB, among other employment disputes.
]]> In general, federal law protects employees from repercussions for engaging in "protected concerted activity" by talking with colleagues about their jobs or working conditions. These communications and complaints are generally protected whether they occur at the office, out of the office or online, as long as they are shared with co-workers.However, employers are not restricted from taking action against employees who make disparaging comments online or elsewhere when they are not shared with other employees or as part of concerted activity. Two cases addressed by the NLRB demonstrate this distinction.
In one case, an employee complained on Facebook about the food served at a work event. The NLRB found his complaints were protected because the employee had shared them previously with other employees at the event.
In the other case, though, an employee was suspended for one day and disqualified from seeking a promotion for one year for complaining about management on Facebook because the complaints were "an individual gripe" and not a protected effort to discuss job terms and conditions with co-workers.
These and other cases before the NLRB reveal the challenges employers face when creating, implementing and enforcing social media policies. To ensure they are properly protected and in compliance with the law, employers should seek the advice of an experienced business lawyer regarding their social media policies.
]]>The business litigation matter involved complicated oil and gas litigation (the "Tenge Field" case). The attorney who took the case was of counsel to Greenberg Peden, P.C. While he stated that he would personally represent the defendant, Anglo-Dutch, he prepared his fee agreement on the law firm's letterhead. Anglo-Dutch responded to that fee agreement by acknowledging an "agreement between Greenberg Peden, P.C., and Anglo-Dutch." Greenberg Peden dissolved while the case was in progress and the attorney continued the case while employed with a different law firm.
]]> After the case concluded, Anglo-Dutch agreed to pay the attorney for the time he worked for Greenberg Peden but not for the time after the dissolution since, according to Anglo-Dutch, the agreement was with Greenberg Peden and not the attorney or his new firm.Anglo-Dutch sued for breach of fiduciary duty (a form of legal malpractice) and claimed that the agreement was with Greenberg Peden. The attorney sued Greenberg Peden for breach of contract and claimed he had been defrauded by the president of Anglo-Dutch.
A jury awarded the attorney $1 million in fees, which was upheld by the Court of Appeals. However, in an August 26 opinion, the Texas Supreme Court reversed and remanded the case to trial court for further proceedings. In the decision, Justice Nathan Hecht said the fee agreement was unambiguous and was plainly a fee agreement with Greenberg Peden. He wrote:
Construing client-lawyer agreements from the perspective of a reasonable
client in the circumstances imposes a responsibility of clarity on the lawyer
that should preclude a determination that an agreement is ambiguous in
most instances. Lawyers appreciate the importance of words and are more
able than most clients to detect and repair omissions in client-lawyer
contracts. A client's best interests, which its lawyer is obliged to pursue,
do not include having a jury construe their agreements.
Source: Texas Supreme Court Opinions, Anglo-Dutch Petroleum International, Inc. and Anglo Dutch (Tenge) L.L.C. v. Greenberg Peden, P.C. and Gerald J. Swonke, Aug. 26, 2011.
]]>The U.S. Forest Service cancelled its contract with Aero Union after an undisclosed contract dispute involving Aero Union's 15-year maintenance plan. According to the director of the Forest Service's fire and aviation management program, there was a safety issue involved with the contract. "We can't in good conscience maintain an aviation contract where we feel lives may be put at risk due to inadequate safety practices," he said.
Now, due to the contract dispute, the U.S. Forest Service has only 11 tankers, compared with 40 tankers nearly 10 years ago.
]]> The Impact of Contract Disputes on BusinessesAero Union had contracted with the Forest Service for 50 years. According to Aero Union's CEO, 60 employees - who were vital in the operation of the seven P-3 Orions under contract - are now out of work.
Companies like Aero Union rely on contracts to stay in business. A contract dispute can be a small issue - such as a dispute involving the sale and delivery of nonessential goods - or it can mean life or death for the business.
Most likely, your business already understands the impact of contract disputes. At the very least, disputes about contract interpretation can harm business relationships. Disputes that are not quickly resolved lead to expensive business litigation. And losing a contract dispute can cripple a business.
A well-written contract can both reduce the likelihood of misunderstandings that create disputes and minimize the chance of losing if a dispute becomes unavoidable. Among the step you can take to protect your rights before a contract dispute arises are:
Source: Business Insider, "The Federal Government Grounded Half Its Firefighting Planes Just Weeks Before the Texas Wildfires," Robert Johnson, Sept. 7, 2011.
]]>As part of our commitment to a creative, insightful and prepared approach to legal representation, our lawyers pay close attention to the latest developments in trial law as well as each of our substantive legal practice areas.
We will use this blog to communicate news, information and perspectives that we believe will be useful to our clients, prospective clients and the general public. We hope that you will find our blog entries and the rest of our website interesting and helpful as you decide how to address your or your business's legal challenges.
Every case is unique, and there is no substitute for the advice an experienced attorney can provide after gaining an understanding of your individual circumstances. To schedule an appointment with one of the knowledgeable lawyers at our firm, please call us toll free at 877-900-9458 or e-mail us at our offices in Irving, Texas.
]]>