Questionable behavior
(Cont. from page 1)
and sued, alleging that when she
had complained about her co-
workers lunch invitations, she
had engaged in protected activity.
Therefore, she said, her termina-
tion was retaliation. A jury agreed
and awarded her $1 million. The
water agency appealed.
The Texas Supreme Court
tossed out the award. It reasoned
that no reasonable employee
would believe that a few lunch
invitations amounted to sexual
harassment. That meant Debra
hadnt engaged in protected activ-
ity. Her termination, therefore,
wasnt retaliation. (San Antonio
Water v. Nicholas, No. 13-0966,
Texas Supreme Court, 2015)
Final note: Investigate all sex-
ual and other harassment claims.
If you dont think harassment
happened, you can still admonish
the individual to stop question-
able behavior. That way, it wont
escalate.
Settlement, OT claims
(Cont. from page 1)
overtime violations.
TXL asked the court to throw
out the case, reasoning that the
general settlement agreement
covered overtime claims, too,
since they would have arisen from
employment.
But the court disagreed. It rea-
soned that an FLSA claim settle-
ment either had to have been
approved by the DOL or at least
have been a specific part of the
litigation being settled. That way,
it would be clear that the employ-
ees understood their rights and
were compensated for the claimed
unpaid overtime. The court said
Ambre and Leslie could continue
their overtime lawsuit. (Bodle,
et al., v. TXL Mortgage, No.
14-20244, 5th Cir., 2015)
2 Texas Employment Law July 2015 www.theHRSpecialist.com
Its legal to use different disciplinary
standards for probationary employees
N o doubt you have been warned
many times that the best way
to avoid discrimination lawsuits
had not been in the building long
enough to check his email. A subse-
quent forensic scan provided corrob-
involving discipline is to treat every- orating, but not conclusive, evidence
one alike. The assumption is that that he had not checked his email.
by always being fair and punishing Plus, the injured probation-
the same behavior, rule violation or ary agentswho Jonathan called
poor performance the same, no one internstold investigators that a
can argue that they were demoted, black agent had needled one of them
suspended or fired because of their about certain tattoos and suggested
protected status. they indicated
But there is a situ- gang affiliation.
ation in which you Just be sure Jonathan was
canand probably to treat every probationary the only black
shouldtreat some agent there that
employees more
employee the same. day, so he was
strictly as a class. investigated for
Thats when dealing with probationary possible lack of candor and racist
employees. statements. Later, he changed his
Take the time to assess whether new story and said he hadnt checked his
workers have what it takes to become email after all.
good, productive employees before He was then terminated for lack
they move from probation to perma- of candor in the original account.
nent. He sued, alleging that another
As long as you treat every probation- employee who had permanent sta-
ary employee the same way, its fine. tus was not fired even though he
Recent case: Jonathan, who is also said he had not participated or
black, was hired as a probation-
ary border patrol agent for the
observed any hazing.
But the court drew a distinction
Department of Homeland Security. between discipline for probation-
While on a routine patrol, Jonathans ary employees and those who had
partner told him they were going to already achieved permanent status,
a different location than their super- concluding that harsher treatment
visor had assigned them to. They for probationary employees was per-
instead went to a checkpoint where missible. That meant Jonathan had
several new recruits (newer than to compare himself to other proba-
Jonathan) later complained they had tionary workers. No one else in that
been hazed by being told to exercise group had fabricated an account
to the point of injury. that removed them from the haz-
All the border patrol agents were ing incident. Jonathans termination
questioned about the incident. was upheld. (Thomas v. Johnson, No.
Jonathan and all the others who 14-41085, SD TX, 2015)
had been at the checkpoint that day Final note: Carefully document
were asked to submit an account of all discipline at the time you make
their activities. Jonathan said, When the disciplinary decisions. Spell out
we arrived at the checkpoint, I was exactly why a particular employee
introduced to the new interns and should face discipline, including
then went inside to check my gov- details that may distinguish his case
ernment email. I did not witness and from that of others similarly situ-
was unaware of anything that went ated. Appropriate factors to consider
on outside of the checkpoint. include prior discipline and the seri-
Video evidence showed Jonathan ousness of the offense.
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