Human resources officials are people too . . . as well as employees. Some think that as a worker side employment attorney I am always at odds with human resources officials, but that is not true. Yes, those HR folks are often adverse witnesses in cases involving my clients, but I know firsthand that good human resources officials prevent many potential legal claims and save their employers a significant amount of money in legal fees and future settlements.
But what happens when a good human resources official does his or her job to protect the employer and follow the law, but then gets punished? Well, if you are in arbitration the results may surprise you.
Ramon (we’ll keep his last name out) onboards new hires for his employer. That includes signing an immigration form called an I-9 that says, under penalty of perjury, that a worker is authorized to work in the U.S. It’s a big deal, because if you, Mr/Ms HR worker, signs one of these and you know, or should have known, this worker is not authorized to legally work in the U.S. you can go to jail for committing perjury. Moving on, ol’ Ramon is told about a new hire to be onboarded, but is also told this new hire worked for the company previously under a different name . . . his brother-in-law’s name. Hmm, a worker used a fake name and his cuñado’s social security card and driver’s license to previously get hired. Well ol’ Ramon correctly says I’m not going to onboard this worker and affirm, under penalty of perjury, that this guy is authorized to work in the U.S. I think you know what happens next. Despite no prior discipline, ol’ Ramon is terminated for “performance.” Oh yeah, the “new” guy is hired, or more accurately re-hired, despite the employer having notice that he previously obtained employment fraudulently.
Texas has a law that prohibits employers from terminating a worker for refusing to commit an illegal act. It’s called a Sabine Pilot law. It is a public policy type of law. We don’t want employers to tell workers to break the law, and if they refuse, lose their jobs. Perjury is against the law. Signing an I-9 under penalty of perjury that a worker is authorized to work in the U.S. when you have reasonable grounds to believe that is not true, is… well…. perjury! Terminating ol’ Ramon because he refused to onboard an undocumented worker and sign his I-9 would be violating this Sabine Pilot protection.
Looks like ol’ Ramon’s employer is in trouble. But wait, no, there is an arbitration agreement. This travesty will never see the light of a public courtroom. No jury. No judge. It will go to private arbitration. Well, you can figure out how this will end. Not surprisingly the arbitrator ruled in favor of the employer. Why? Because, according to the arbitrator, ol’ Ramon did not first look at the fake social security card and fake Texas driver’s license of this worker when he decided he would not onboard him. By the way, the driver’s license this worker used was such a bad fake, his signature was typed, the font used on the card was different than what is used by the Texas Department of Public Safety, and it had 9 digits (instead of the standard 8 digit driver’s license number). Despite undisputed evidence that these documents were fake, according to the arbitrator, ol’ Ramon still needed to look at them before refusing to sign the I-9.
Most plaintiff employment attorneys will tell you that arbitration is not fair to workers. Not even close. This is but another example, however, of how arbitrators will search for some reason to rule in favor of an employer and create unreasonable burdens on workers.
End result. Undocumented worker who used fake documents — hired (and worked there until the lawsuit was filed, after which he coincidentally was a no call, no show and disappeared). Employer who knowingly violated immigration laws and engaged in retaliation — not punished. HR worker who did the right thing — lost his job and lost his legal claim.
The battle continues sin fin …
The tragedy in El Paso, Texas on August 3, 2019 will never be forgotten. Not by me nor by anyone else in this city. Like traumatic events often do, it has left me retrospective, as well as introspective. After the national media and politicians stop talking about the massacre, we are left to ask why and where do we go from here.
I don’t pretend to have the answers to explain why our country and our people are so violent. I do know that after more than five decade of living and over 25 years of practicing law that Americans are basically good people. I have come to a conclusion, though, that one of our greatest weaknesses is that we seek “justice” with a lowercase “j” and not “Justice” with a capital “J.” What does that mean?
Most people, and I must confess that includes myself, seek to protect the identities we have created for ourselves. We want what is right and just for our beliefs, our race, our religion, our tribe. Somehow we have divided ourselves by saying were are pro-this or anti-that. We want our rights and free speech protected, but we are not willing to stand for the rights or free speech of others – particularly if we deem the “others” as a threat to our tribe or our beliefs. Most whites and Hispanics do not care deeply about Black Lives Matters. Most African Americans don’t care about “Dreamers,” deportations of undocumented immigrants, or Central Americans seeking asylum. Christians aren’t particularly concerned about discrimination against Muslims. Muslims aren’t vocal against anti-Semitism. Atheists are unwilling to hear the concerns of Christians who feel their beliefs and rights are threatened. This is “justice” with a lowercase “j.”
As an employment attorney I have represented a diverse group of clients. A couple of years ago I represented Mark, an African-American man who alleged race discrimination in his termination. The case was tried before an all Hispanic jury. The evidence included the fact that my client was the only black working with an all Hispanic workforce for a company in El Paso, and that his supervisor would refer to him as a “mayate” (the Spanish equivalent for the “N” word). Surprisingly the jury ruled against my client. When I went back to speak to the jurors, I saw a lack of anger or even empathy towards what my client experienced. I had to wonder if the outcome would have been different had I presented the exact same facts but my client was Hispanic and his supervisor a white man using words that were racially offensive about Hispanics.
It is human nature to want to belong to a group. Race. Ethnicity. Gender. Nationality. Political affiliation. Religion. Sexual orientation. Profession. College. High school. Whatever. Tragedies like the one we had in El Paso, though, remind us of how similar we are and how these self-imposed labels only give us an excuse to lack empathy towards others who are not like us. The next time I hear about the struggles of one group, or the discrimination against another, I will try to walk the proverbial mile in that person’s shoes. Or at least a few steps. I have seen us accept “justice” with a lowercase “j” for too many years, and it is killing us.
“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”
-Martin Luther King, Jr., Letter from a Birmingham Jail.
By accepting a job with this company, you have agreed to the company’s ARBITRATION AGREEMENT. The following explains why I, the employer, can do this.
I am POWERFUL. YOU are POWERLESS. I therefore can CONTROL every aspect of our relationship.
You are easily replaceable.
I have no reverence for you, or your struggles, or why you need this job.
I will dictate every aspect of your job. How much you will be paid. Your hours. Your benefits. Your duties. It is non-negotiable.
You have no guarantee to work this job tomorrow.
I can fire you for almost any reason, or no reason at all.
I will force you to give up your constitutional right to a jury trial before your peers.
If you refuse to agree to my arbitration agreement and refuse to give up your jury trial rights, I can and will fire you.
I will force you to submit your legal claims to an arbitrator who will be paid thousands of dollars by me.
I have probably paid this same arbitrator several times in the past for deciding cases against my company.
You will never know how this arbitrator has decided past cases against me, nor will you ever know how much I have paid this arbitrator in the past. Of course, my lawyers and I will know.
Arbitrators will know that their decisions against me will determine if I accept them for future arbitrations, which could result in them losing tens of thousands of dollars in future compensation.
Your challenges against my arbitration agreement will be almost futile because I, and other like me, have POWER over many elected officials and judges who run for re-election or seek appointments.
Judges will rule that you “voluntarily contracted” with me, and “agreed” to give up your jury trial rights in exchange for working here. We both know, however, you have no bargaining power to contract or negotiate with me.
The Seventh Amendment to the United State Constitution guarantees a right to trial by jury in civil cases. It is clear and unambiguous. Yet I have stolen your inherit right as an American and you can do nothing about it.
I have the POWER and I will maintain CONTROL over you, the POWERLESS worker, until (1) uncompromising and brave jurists begin to take action by recognizing the TRUTH, or (2) Americans demand change and take action against those employers that force arbitration agreements against their workers.
TRIAL BY JURY is your inherent right preserved by the framers of OUR CONSTITUTION. It cannot be stripped away in exchange for a job. You should not have to choose between feeding your family and exercising your legal rights.
Judge David Briones
It is not often that we lawyers do noble work. When we do, it’s often a result of our clients. More specifically, it is a result of the circumstances our clients were placed in, and how they responded. I recently blogged about a case involving two dialysis nurses who were fired by their employer after they refused directives that they believed would jeopardize a patient’s safety and violate nursing regulations. They had worked for this employer 24 and 20 years without a single disciplinary action. The trial judge, David Briones, denied them a jury trial by dismissing their case. Not surprising from this judge. Unfortunately where a case lands and the judge who is assigned often dictate how successful your case will be. Briones ruled that the Texas nurse retaliation law did not even apply to these El Paso Texas nurses because the patient they were asked (but refused) to treat was located in New Mexico. He then further added that there were no fact issues for a jury to decide on whether the employer retaliated against these nurses. Interestingly, much of the judge’s opinion relied heavily on an affidavit offered by the same supervisor who fired the nurses and was accused of the retaliation.
As I mentioned in my earlier post, the appeal of the dismissal to the very conservative and pro-business Fifth Circuit Court of Appeals was a long shot, but a chance worth taking. The Fifth Circuit surprisingly, however, gave these nurses a split decision. See the opinion here.The court held that Briones was wrong on the law, and in fact the Texas nurse retaliation law did apply to these nurses. This part of the opinion is a big win for Texas nurses, especially those doing work across state lines in neighboring states. If this was Briones’ only reason for the dismissal, the nurses would have won and the case would have been sent back for a jury trial. Unfortunately the Fifth Circuit affirmed Briones second reason for the dismissal, that is, that there were no fact issues for a jury to decide on whether the employer retaliated against these nurses. 44 years of combined service to the same employer with no prior discipline, and both were terminated within 6 weeks after refusing a directive that they believed could jeopardize the well being of a patient. No fact issues? Bad decision, but it does not matter. Dismissal affirmed. Case over.
I began this article by opining that on occasion, lawyers perform noble work. This however, neither guarantees recognition, nor reward, nor victory. Yet even in the darkness of defeat, the acts of noble people shine bright. Thank you to these two nurses for showing us the goodness in humanity. Two nurses who sacrificed their jobs for a patient they never met. You are what make the nursing profession honorable. Perhaps one day the legal profession can follow in your noble footsteps.
“No act of kindness, no matter how small, is ever wasted.”