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.”
This week the Fifth Circuit Court of Appeals in New Orleans will hear a case from El Paso, Texas that will determine the reach of Texas anti-retaliation laws that protect nurses who refuse to obey directives that jeopardize patient safety. Specifically, do these legal protections extend to Texas nurses when the patient happens to be located across state lines?
I am proud to represent two registered nurses: Gloria Almeida and Irma Quiñonez. Almeida and Quiñonez worked for the same employer, Fresenius Medical Care, in El Paso for 24 and 20 years respectfully. They are nephrology nurses, which mean they care for patients diagnosed with end stage renal (kidney) disease. They provide care and compassion to both patients and their families in the most trying of circumstances.
Almeida and Quiñonez had outstanding employment histories, having no disciplinary history and only excellent performance evaluations during their long careers. Yet they quickly lost their jobs after refusing to comply with an order that they believed could jeopardize a patient’s safety.
Almeida and Quiñonez allege in their lawsuit that a supervisor directed them to provide home hemodialysis training to a patient in Las Cruces, New Mexico. While most dialysis patients have their treatments in a dialysis facility with trained nurses present, a patient can opt to receive dialysis treatment at home administered by only a family member. These family members need to be trained by experienced professionals on how to operate the dialysis machinery, and what steps to take if problems occur with the patient or the machinery. A wrong decision based on poor training can mean life or death for the patient. The dialysis machine used in a dialysis facility is very different than the one used by patients at home. Both Almeida and Quiñonez objected because their experience and training was with the dialysis machines used in dialysis facilities, not with the in-home machines. They felt that they lacked the proper training and experience required by both state nursing regulations, as well as by company policy, to train family members. Despite these objections, the company continued with the directive and promptly issued Almeida and Quiñonez first and second reprimands, followed by a termination due to the alleged insubordination.
Almeida and Quiñonez filed suit alleging violations of Texas nurse anti-retaliation statutes (Texas Occupations Code §§301.352, 301.4025(b) and 301.413), which prohibit retaliation again nurses who report and/or refuse to engage in practices that the nurse has a reasonable cause to believe exposes patients to a substantial risk of harm, or would constitute grounds for reporting the nurse to the Texas Board of Nursing.
Fresenius asked the trial court to dismiss the case alleging that it was not subject to these Texas laws because the patient care in question occurred outside of Texas. El Paso federal district judge David Briones agreed, dismissing the lawsuit.
Almeida and Quiñonez have appealed their case to the Fifth Circuit Court of Appeals. Their appeal is being handled by John P. Mobbs, one of the best appellate attorneys in the state. The Fifth Circuit is a very conservative, pro-employer court, and the odds are against these nurses. But this case is too important not to appeal. This court’s decision will not only decide the fate of Almeida and Quiñonez, but also every Texas nurse working along the borders with neighboring states and treating patients across state lines. Almeida and Quiñonez are Texas nurses licensed by the Texas Board of Nursing and are subject to its rules and regulations. They worked in Texas. Their employer was located in Texas. They were terminated in Texas. The Fifth Circuit will determine if the protections of Texas statutes meant to protect Texas nurses and promote patient safety ends once a nurse crosses state lines to care for a patient. This case will have an impact, in my opinion, on not only the protection of Texas nurses, but on the care of patients who depend on nurses voicing their opposition to dangerous or unsafe directives by healthcare employers.
In the end, the commitment and compassion of nurses do not end when they cross state lines. Neither should their legal protections.
Primum non nocere. “First, Do No Harm”
-part of the Hippocratic oath
Labor Day is celebrated each year to honor American workers. A nation can show no greater honor to its workers than to ensure respect through safe working conditions, fair pay and benefits, and a work environment free of discrimination. That includes protections against pay disparity between the sexes, as well discrimination against older workers, pregnant employees and the disabled.
As far as our nation has come in the last 100 years in extending worker protections, we continue to lack in many areas. Here are a few Labor Day thoughts.
Did you know. . .
….you can give up your right to bring a legal claim through the court system by accepting a job? The answer is yes.
A right to a jury trial is a constitutional right, yet many employers require workers to agree to arbitration agreements as a condition of employment. That means if you refuse to sign it, you will be fired! Some employers are just sticking the arbitration agreement in handbooks, and when you sign for your handbook you are “agreeing” to arbitration. The result is that if you ever have to bring a legal claim against your employer, you will not have your case decided by a judge in your city, or a jury of your peers. Rather it will be decided by an arbitrator paid for by your employer. Many times an employer will pay tens of thousands of dollars to the arbitrator to decide a case. Can you imagine if you had your case in front of a judge that received a contribution of $25,000 from your former employer? It would never happen because that judge would recuse his or herself. Not the case in arbitration. Sounds unfair? It is.
…you can work for your employer one day and they can limit your future employment for the next two years? The answer is yes.
Most workers in Texas are “at-will” employees. That means you can be fired at any time, for any reason that does not violate an employment law. Some employers are requiring workers to sign non-compete agreements as a condition of employment. These non-compete agreements essentially bar you from working for a competitor of your employer for a certain period of time (usually 1 or 2 years) in a certain geographic area (city wide or a 200 mile radius for your workplace). So in exchange for your employer giving you absolutely no guarantee of future employment, they can greatly affect your livelihood and ability to support your family. If you have a specific skill, or work in a specific profession, these non-compete agreements can devastate you financially. Sounds unfair? It is.
…you can be fired for getting hurt at work? The answer is yes.
Texas law prohibits the termination of a worker for reporting a workers’ compensation claim. The problem is that Texas does not require all employers to have workers’ comp insurance. If an employer does not carry workers’ comp insurance then this retaliation law does not apply to them. The result is that in some cases you can legally be fired for getting hurt on the job. Sounds unfair? It is.
…you can be fired simply because of your sexual orientation? The answer is yes.
Both federal and Texas anti-discrimination laws do not prohibit discrimination based on a worker’s sexual orientation (except the Seventh Circuit, which Texas is not a part of). While federal legislation has been proposed to amend the Civil Rights Act of 1964 to include sexual orientation discrimination, it has died in committee. A good employment attorney can sometimes bring a gender discrimination claim based on an employer or supervisor making decisions based on “gender stereotypes” (e.g. criticizing a gay worker for not acting “like a male”). Unfortunately that argument may not be available in many cases where the LGBT community faces workplace discrimination and harassment. Sounds unfair? It is.
Let’s celebrate the day of the American worker, but let us not forget that work still has to be done to ensure full and fair protections for all of the people that make this country great. Happy Labor Day!
“Workplace Rights are Human Rights.”
– Eleanor Roosevelt