The 86th Texas Legislative Session has been in swing for almost two months, so we thought now would be a good time to highlight some proposed legislation relating to civil litigation that may affect your business.
Wanting to comply with the latest edict of the Equal Employment Opportunity Commission and give a recently released felon a break, Awft N. Cawssius ignored Pa Roll’s answer of “yes” to whether he had been convicted of a crime in the last five years and hired Pa to work as an armed security guard at Awft’s convenience store. When Pa Roll assaulted and shot a suspiciously acting John Q. Shopper, Shopper sued, alleging that Cawssius knew or in the exercise of reasonable care should have known that Pa Roll was unfit to be a security guard and created an unreasonable risk of danger to the other convenience store patrons. Is Cawssius liable to Shopper? Does the EEOC edict minimize his liability?
EEOC Guidance / Negligent Hiring
The EEOC’s updated Enforcement Guidance on the “Consideration of Arrest and Conviction Records in Employment DecisionsUnder Title VII of the Civil Rights Act of 1964” directs that an employer that uses criminal history to make employment decisions may violate the prohibition against employment discrimination under Title VII of the Civil Rights Act of 1964. The April 2012 Guidance summarizes the EEOC’s long-held position that employers’ reliance on arrest and conviction records may have a disparate impact on individuals because of their race or national origin and mandates significant changes in certain areas that are important to most employers. However, for employers, enforcement of the April 2012 Guidance may increase employer tort claim risk.
This month the State of Texas sued the EEOC in federal court in Lubbock seeking relief from the 2012 arrest and conviction guidance and complaining that the EEOC did not have the authority to implement hiring guidelines that prohibit Texas and its agencies from categorically excluding convicted felons for certain jobs. Texas state law allows for blanket, no-felons policies at certain state agencies, including the Department of Public Safety, the Department of Aging and Disability Services, the General Land Office, the Juvenile Justice Department, the Lottery Commission, the Parks and Wildlife Department and the public school system.
Yes, Awft N. Cawssius is probably liable either way – for negligent hiring of Pa Roll, or for violating the EEOC had he not hired Pa Roll. No, for those employers in Texas and most states who hire a convicted felon, the EEOC edict does not reduce liability. Three states (Colorado, Massachusetts, and North Carolina) adopted laws, in conjunction with other reforms, to limit the liability of employers who hire people with criminal records.
Tilting the Scales in Your Favor
How Can Employers Legally Conduct Criminal-Background Checks? Several tips to assist employers from the Texas Workforce Commission:
- Audit. Routinely audit applicant/hire files to determine whether your criminal-background-check policy disparately impacts any group.
- Criminal Background / Credit. Review current criminal-background-check policies for consistency with the “business necessity” requirement and the EEOC position. Employers may perform criminal background checks themselves, but must give written notice that a credit or background check will be done and get written authorization for the check per the Fair Credit Reporting Act. If turned down, the employer must tell the applicant why, give the applicant a copy of the report, and let them know the name and address of the service that furnished the information.
- Customer’s Homes. Texas requires in-home service and residential delivery companies to perform a complete criminal history background check on employees sent into customers’ homes (including attached garages or construction areas next to homes). Doing so gives Awft N. Cawssius the upper hand to argue that he did not act negligently in hiring. See the Texas Civil Practice and Remedies Code, Sections 145.002-145.004.
- Convictions, Not Arrests. Unless required by law, Awft should ask only about convictions and pleas of guilty or no contest, not arrests, and be prepared to show how the criminal record was relevant to the job in question, i.e., the security guard will be carrying a gun, or otherwise created an unreasonable risk of possible harm to people or property. More EEOC information HERE.
- Polygraph. Never ask an applicant to take a polygraph exam, unless your organization is statutorily required to do so – that would be a violation of the Employee Polygraph Protection Act of 1988, a federal law.
After their respective divorces Anita Will married Shelby A. Reck in Oklahoma. At the time each had a child and an Oklahoma home from their former marriages. Following the blissful event each adopted the other’s child, they moved to Texas, bought a house in Shelby’s name and had a baby. Before he died last year Shelby used an internet site to prepare his will in which he gave all of his assets to his Oklahoma child and failed to mention Anita’s child, their Texas child or Anita. Can Shelby’s wishes in his Last Will and Testament be honored?
While the predictable answer is “it depends,” the likely answer is “Probably Not.” Under some limited circumstances internet sites like LegalZoom.com might be sufficient. Even assuming that Shelby satisfied internet site checklists of the legal formalities of age, capacity, signature, witnesses, writing and beneficiaries, probating a will consistent with the intended distribution of personal assets becomes complicated by Texas community property issues, children (both biological and adopted), ownership of real property out of state and perhaps by prior marriages.
If you are looking to do your own will, the internet is chock full of sites, including LegalZoom.com and a plethora of others. Although you would expect for lawyers to say it’s a bad idea, finding the lawyer sites that tell you why internet wills are a bad idea are few. I did find one lawyer on Practice Blawg who claimed to purchase a “Standard Will” and the troubles he encountered. Even if you use a “Standard Will” and it works for your circumstances, it is equally likely that, for those limited circumstances, there are even better solutions that present fewer complications and headaches.
Tilting the Scales in Your Favor
You can legally write your own will. However, you need to know your state’s legal requirements. Create your own will only if family issues, finances and legal matters are not complicated. Livestrong Cancer Navigation Services recommends that you consider writing your own will only if you:
- Have limited assets registered in your name;
- Are unmarried and have no children;
- Want to leave your assets to only one or two people; and
- Have no major tax concerns to consider.
Another criteria for Texans would be to own real property only in the state of Texas. An attorney who specializes in estate planning will know what Texas law requires. Tax attorneys, accountants and certified financial planners can also help with estate planning. If a family member challenges your will, it could be declared as not valid. If this happens, Texas might not follow your intentions. Property could then be distributed according to Texas probate laws. A will prepared by an attorney is more likely to withstand legal challenges.
Johnny Tightlips, a local mobster, is facing time behind bars for various racketeering offenses. During the trial, the New York Daily Planet reported that Tightlips was a “key lieutenant” of Jimmy “The Squid” Calamari, an organized crime figure, and that Tightlips planned to reduce his jail time by cooperating with prosecutors to testify against The Squid. Attacking the article, Tightlips sued the Daily Planet complaining that he was defamed and that the information intentionally inflicted emotional distress upon him and his family. Why? Tightlips was not upset that the Daily Planet called him a “key lieutenant” or even an organized crime figure. He frets that he was defamed because reporting his cooperation with prosecutors, exposed Tightlips as a snitch or “mob rat.” The result? He claims the newspaper report will subject him to threats, scorn and ridicule among the prison population and his peers. Can a mobster be defamed by being called a rat?
What a twist! An alleged mobster complains that a newspaper article reporting his snitching is damaging to his reputation in the criminal community! Ultimately for Tightlips however, his suit is without merit. Even if a statement tends to prejudice Tightlips in the eyes of his mobster cohorts (e.g. the prison population) that, alone, is not enough to make the statements defamatory when the “affected group” is one whose standards are so anti-social the courts should ignore their “standards” as being against public policy. A statement is defamatory only if it subjects an individual to shame in the minds of “right-thinking people.” The population of “right-thinking people” unambiguously excludes those who reject someone who legitimately cooperates with law enforcement.
Tilting the Scales in Your Favor
“Defamation” is a frequent topic of cocktail conversation. Yet, it is complicated in its application. Generally speaking the act of injuring a person’s reputation by making a false statement by libel (in writing) or slander (orally) can be the subject of a lawsuit. As Tightlips discovered, it is more than just getting your feelings hurt or being scorned by your “friends.” Should you find yourself a defendant in a defamation lawsuit, urge your attorney to review your insurance policies. Frequently a comprehensive general liability policy (“CGL”), commercial or personal, can provide some coverage. Many CGL policies provide indemnification and defense costs for defamation claims also known as “advertising injuries.”
Yes. There really is a mobster who claimed to be defamed when it was reported that he was cooperating with prosecutors. Check it out at Michtavi v. New York Daily News et al., No. 08-2111-cv (2nd Cir. 2009).
Sal Minella is president and registered agent of Mother Clucking Tasty Chicken, a large poultry processor in East Texas. One afternoon, while flying the coop for a much needed vacation to the Canary Islands, Sal is met by a process server who presents him with a lawsuit. Sal quickly skims the allegations of the lawsuit – yet another food poisoning victim – and hurriedly tosses the papers on his secretary’s desk, fully intending to respond to the meritless claims when he gets back. When Sal returns to the office, he remembers why he doesn’t like vacations, as he is confronted with 721 e-mails and a host of minor emergencies. Not surprisingly, bird-brained Sal completely forgets about the food poisoning lawsuit. Several weeks later Sal receives a default judgment in the mail. Failing to timely answer the meritless lawsuit just cost Sal and Mother Clucking Tasty Chicken a default judgment of almost $9 million. With the plaintiff sitting in the catbird seat, what should Sal do?
Call a lawyer immediately. In this case, Sal has a chance to have the default judgment set aside. In Texas district courts, after being served with a lawsuit a defendant has until the Monday following the expiration of twenty days to file an answer to the lawsuit. If an answer is not timely filed, the Court often grants the Plaintiff a default judgment for the entire amount of the alleged damages without further notice to the defendant. While it is possible to get a default judgment set aside (and have a new trial granted), the defendant must demonstrate, among other things, that the failure to file an answer was an accident or mistake and not intentional or the result of conscious indifference. The defendant must also agree to compensate the plaintiff for certain fees and expenses in obtaining the default judgment.
Tilting the Scales In Your Favor
The Texas case reporters are filled with lawsuits that got buried under papers or lost altogether and never responded to timely. While default judgments can be set aside, the process is costly, extremely stressful and not assured. Never ignore a lawsuit! Every lawsuit, even those you deem completely frivolous, must be timely addressed. If you fail to answer a lawsuit, it will inevitably take care of itself in a most unfavorable way and might permanently deny you the opportunity to defend yourself.
Just last month, the newspapers reported that PepsiCo failed to respond to a lawsuit and suffered a judgment of over $1.2 billion. Although the judgment was subsequently set aside, it was undoubtedly an unpleasant situation for PepsiCo and one that likely could have been avoided. See also Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
Times were good in the coal business and Conspiring Coal’s cost benefit analysis revealed greater profits could be had if it could run Noharmin Mines out of business. A jury found that’s exactly what Conspiring Coal did and awarded Noharmin Mines $50 million in damages. Desperately needing to dig out of this deep hole, Dastardly Don, the owner of Conspiring Coal Company, turned to the judges to “tilt the scales” in his favor. His $3 million in campaign contributions to Supreme Court candidate Icahn B. Baught eclipsed all other favored funds combined. After Baught won by fewer than 50,000 votes and cast the deciding vote to reverse the $50 million judgment, Noharmin Mines cried foul.
Icahn B. Baught refused to recuse himself; there was no proof that he was biased or prejudiced. He assured his fellow justices he was fair and impartial. The United States Supreme Court disagreed. Noharmin did not have to prove bias. It only had to show the appearance of impropriety. Would a reasonable and prudent person, knowing the objective facts, harbor doubts about Justice Icahn B. Baught’s ability to be fair and impartial? The Ultimate Supremes found that the probability of actual bias on the part of Justice Baught was too high to be constitutionally tolerable. They reversed.
Tilting the Scales Note. Yes, there still is “justice” in the world. It’s one thing to try to understand the law and to adjust your behavior to try to tilt the scales of judicial opinion in your favor. It’s quite another thing to bend the post that balances the judicial scales. The standard requiring Justice Baught to recuse himself was the appearance of impropriety or impartiality. It doesn’t look or smell like it will be fair. That’s not the same thing at all as a criminal case of bribery (or even a civil claim, for that matter). In that circumstance, objective proof of bias must be shown.
Whether judges should be appointed or elected has long been a topic of debate across the country, particularly Texas. We are in the minority of states that seat judges by election. As recently as last week, the Dallas Morning News ran an editorial “Ruling Should Push Texas to Reform Judiciary.”
For more information, see the West Virginia case of Caperton et. al. v. A.T. Massey Coal Co., Inc. et. al., decided by the United States Supreme Court on June 8, 2009. This article is a parody on the reported facts of that case and is not intended to be a reflection on the character or judgment of the actual parties.
Delilah aka “Dirty” Dancer enjoyed gyrating at the Friday night community gatherings held in the local Town Hall of Mainstreet, USA. Regrettably, Dirty’s 56 year old grooving was viewed by many members of the cozy community as a little too “unorthodox” for their “G Rated” children. Dirty Dirty’s dancing limelight was snuffed when she was banned from attending the town events. Town officials said they received complaints about Dirty’s dancing and short skirts, and she ignored repeated warnings. Dirty retorted that the town talk of Mainstreet, USA treated her differently from patrons who were dancing and dressing in a similar fashion.
The Real Dirty Delilah, with the help of the ACLU, filed a lawsuit in Federal Court in 2001. After a seemingly endless flurry of motions, hearings, and appeals, on April 30, 2008, the 4th Circuit reinstated Dirty’s almost eight year old lawsuit. At the insistence of the insurance company which had long been promoting settlement, it appears that, without admitting any wrongdoing, the Town of Mainstreet, USA threw in the towel. Dirty is reported to have received payment of some $275,000. We don’t know if that was enough money to get Dirty to agree to end her dancing career in the cozy community of Mainstreet, but it probably was enough to buy her some good dancing lessons and maybe even her own place to dance!
TS Litigation Tip. “Swallow Your Pride Now and Again.” Particularly maddening to all of us are problems or behavior, whether they be community or corporate, that we all know are simply not “right.” At first, it may feel good and noble to pursue truth and honesty, but sometimes pushing a point can end up being painfully time consuming and unacceptably costly.
Do you think that Dirty would have reconsidered her rabble rousing if the kind folks in Mainstreet, USA first invited her to join them in a family meal to meet their children before the complaints were lobbed? Do you wonder if there might have been other conciliatory options permitting Dirty to be met “half-way” rather than only “our way or the highway?” Given the “complaints” about short skirts and dirty dancing, how do you predict the prattlers would have reacted if those who were bumping and grinding were a gaggle of their own teenagers? Should lawyers, who are licensed both as attorneys before the court and “counselors,” first consider options to avoid litigation and discord in the hope of securing a resolution that is closer to a more economical “win-win” for all sides?
For more information on this case go to:
Rebecca Willis v. Town of Marshall, North Carolina, No. 07-1404 in the U.S. Court of Appeals for the Fourth Circuit on appeal from the U.S. District Court for the Western District of North Carolina, at Asheville (CA-02-217-1) (April 30, 2008) (Unpublished).
Rebecca Willis v. Town of Marshall, North Carolina, No. 03-2252 in the U.S. Court of Appeals for the Fourth Circuit on appeal from the US District Court for the Western District of North Carolina, at Asheville (CA-02-217-1) (October 7, 2005).