Earlier this month, I spoke to the Travis County Women Lawyers Association on employment law. One of the audience members asked a good question, which is: for an employer to be subject to Title VII, it has to have at least 15 employees. Do part-time employees count?

Answer: liability under Title VII is limited to employers with 15 or more employees who are present “for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.”  42 U.S.C. § 2000e(b). Accordingly, if a part-time employee is present “for each working day in each of twenty or more calendar weeks in the current or proceeding calendar year,” then yes, the part-time employee counts. Id.

For bonus points, how are employees counted under the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA)?

Answer: The same way. 42 U.S.C. § 12111(5) (ADA); 29 U.S.C. § 630(b) (ADEA).

However, unlike Title VII and the ADA, which limit liability to employers with at least 15 employees, the ADEA limits liability to employers with at least 20 employees. Cf. 42 U.S.C. § 2000e(b) (Title VII) and 42 U.S.C. § 12111(5) (ADA) with 29 U.S.C. § 630(b) (ADEA).

I am interested in ethics. Not just the ethics of practicing law, but the ethics of living life. When I was in college, a family member told me, “Do the right thing, and you’ll be happy.”

That is good advice. But I don’t believe that doing the right thing always makes you happy. Rather, I believe that doing the right thing makes you feel something even better. Let me explain.

Humans covet many things: money, status, material objects, people. I do not condemn those desires. But if we look underneath our desires, we may uncover that what we really want is not the object itself but the feeling we would get if we had it. And often that feeling is freedom.

The right thing is not always clear. But here’s a test I just made up, inspired by the words of Rumi:

“When you indulge a lust, your wing drops off; you become lame, abandoned by a fantasy . . . . People fancy they are enjoying themselves, but they are really tearing their wings off for the sake of an illusion.”

So, next time you are trying to determine the right course of action, ask yourself: will it make me feel more trapped? Or more free?

Doing the right thing may or may not make you happy, but it will make you feel free.

And when you fail, as we all do, take heart. To quote Rumi again: “Birds make great sky circles of their freedom. How do they learn it? They fall and in falling they’re given wings.”

Happy flying, my friends.

Here’s a recent arbitration case that will interest employers with Spanish-speaking employees. In Delfingen US-Texas L.P. v Valenzuela, the employee sued the employer for workers’ compensation retaliation. Because the employee had signed an arbitration agreement, the employer filed a motion to compel arbitration. Arguing that the arbitration agreement was procedurally unconscionable, the employee presented evidence that though the employer knew that she speaks only Spanish, it required her to sign an arbitration agreement written in English without translating it or even telling her what she was signing. The company, of course, presented contrary evidence—that, in fact, it had explained the arbitration agreement to her in Spanish.

The trial court denied the employer’s motion to compel arbitration, and the El Paso court of appeals affirmed the trial court’s order, finding the arbitration agreement procedurally unconscionable.

In a point that will interest only appellate lawyers and possibly the Texas Supreme Court, the court of appeals applied an abuse of discretion standard to the trial court’s ruling, declining to follow its own prior decisions.

Moral of the story for employers? If you have Spanish-speaking employees, do not leave your case to the unpredictable winds of he-said, she-said or the standard of review applied by the appellate court: make the arbitration agreement available in Spanish for all to see.

I had a great time speaking to the Manor Chamber of Commerce last week on sexual harassment. One of the members asked a good question, which is: do the laws governing sexual harassment apply to volunteers?

Generally, the answer is no. Title VII and the Texas Commission on Human Rights Act (TCHRA), the federal and state laws governing sexual harassment by Texas employers, apply only where an employment relationship exists. A volunteer is generally not an employee unless he or she receives pay or other benefits.

The Sixth Court of Appeals recently held that a volunteer firefighter and administrative assistant could be considered an employee and therefore could sue for sexual harassment under Title VII because, although she did not receive compensation for her work, she received worker’s compensation coverage, insurance coverage, gift cards, travel reimbursement, personal use of the fire department’s facilities and assets, training, and access to an emergency fund. Bryson v. Middlefield Fire Dep’t, Inc., 656 F.3d 348, 351 (6th  Cir. 2011).

Bottom line? Though volunteers generally are not covered by Title VII and TCHRA, if the volunteer receives the benefits of an employee, she may be allowed to sue for sexual harassment, even if she is not paid for her work. Employers may therefore want to consider the extent to which they provide employee benefits to volunteers. Of course, the best prevention against sexual harassment is the golden rule: treat others the way you want to be treated and don’t harass.

In late 2012, UT women’s track coach Bev Kearney was forced to resign after admitting to a consensual, year-long relationship with one of her athletes in the early 2000s. Not a month later, the Daily Texan reported that Major Applewhite, a UT assistant football coach, engaged in a one-time sexual episode with a student trainer at the 2009 Fiesta Bowl and was merely disciplined.

Did Applewhite, a white male heterosexual, get off too easy? Was Kearney, a gay African-American female, the victim of discrimination?

As many commentators have noted, there are notable differences between the two coaches’ behavior: Kearney’s relationship was with a student she coached; Applewhite’s conduct was with a student trainer allegedly not under his supervision. Kearney did not bring the relationship to UT’s attention; Applewhite did. In addition, Kearney allegedly provided housing and money to the student in violation of NCAA policies; Applewhite did not.

As an employment lawyer, I see another difference: Kearney was a head coach, Applewhite an assistant coach. Employers are not required to treat all employees equally. Rather, they are required to treat “similarly situated” employees equally. Employees with different responsibilities or different positions, such as a head coach and an assistant coach, are generally not “similarly situated.” In other words, the law allows employers to hold different level employees to different standards. Not that it is a good idea to do so, especially when the issue is sex with students.

The report of the Applewhite scandal helps Kearney in the court of public opinion. But to win in a court of law, she may want to find out how UT has treated other head coaches who have engaged in consensual relationships with students they coached. And UT may want to settle this matter before that information is discovered.

My toddler’s favorite book right now is Where the Wild Things Are, by Maurice Sendak. In Where the Wild Things Are, we meet Max. Dressed up in his wolf suit, Max creates mischief of one kind (he ties a sheet into knots and nails it to the wall to make a clothesline). And another (Max leaps off the stairs, chasing the family dog with a fork). So his mother calls him “WILD THING.”

Max doesn’t like it when his mother calls him “WILD THING.” Angry, he responds, “I’LL EAT YOU UP!” In response, his mother sends him to his room without eating his supper.

And then the magic happens.

Max imagines a forest growing in his room. An ocean tumbles by with a private boat for Max, and he sails off “through night and day, and in and out of weeks, and almost over a year, to where the wild things are.”

When Max arrives at the place where the wild things are, they roar their terrible roars and gnash their terrible teeth and roll their terrible eyes and show their terrible claws. But Max is not afraid. Instead, he tames them with his magic trick of staring into all their yellow eyes without blinking once, and they are frightened and call him the most wild thing of all. They make him king of all wild things.

After a while, Max gets tired of being king of all things and decides to travel back to the place where someone loves him best of all. When he gets back, his supper is waiting for him. And it is still hot.

Litigation can be an angry place. Have you ever encountered a lawyer—or a judge or a client—whose behavior made you angry? How did you respond? Has your behavior made someone else angry? How did you respond?

Like my toddler, I love this story. Here’s what it teaches me about dealing with anger:

1. Name calling usually doesn’t go over very well. It often makes people angry and escalates the problem.
2. People act in accordance with the labels we put on them. Instead of viewing people in their worst light (“WILD THING”), view people in their best light. Reframe what you see. (“I know you’re the kind of person who really cares about being fair, courteous, the safety of the family dog, etc. . . .”)
3. Anger is okay. It gives us energy to solve the problem.
4. When we’re angry, removing ourselves from the situation and allowing our imaginations to wander freely can allow us to recover our self-possession.
5. When we are in possession of ourselves, we know who we are and how we want to act—a powerful place to be.

Thank you, Maurice Sendak, for giving us this wonderful story.

For all you Maurice Sendak fans out there, click here to see an illustrated recording of an interview by Terri Gross of Mr. Sendak, “in love with the world,” before he died. You will be glad you did.

As a business and employment litigator, I am interested in conflict and its resolution. I was stunned when I heard about the Sandy Hook shooting. I asked myself: why did this happen? How could someone commit such atrocious acts? How can we prevent such atrocities in the future?

I once worked with a lawyer who, when an employee came to him with a problem, liked to respond, “Sounds like a personal problem to me.” It was his catchphrase. It meant: “That’s your problem, not mine. Take care of it yourself. I am not going to help you. Go away.”

Like this lawyer, many employers believe that people should not bring their “personal problems” to work. I sympathize with this view. Who wants to be bothered? Why can’t people solve things by themselves? Work is for work. Do your job. Right?

But consider this: a problem, according to one definition I just made up, is a thought that causes pain.

Everybody has painful thoughts: I’m powerless. I’m not lovable. I’m not worthy. I’m not respected. I’m not safe. I can’t get what I want.

And everybody does something in response.

We know how the Sandy Hook shooter responded to his painful thoughts. How do you respond to yours? Do you talk it over with a friend? Write about it? Go for a run? Ignore it? Hold it in and stew about it? Drink? File a lawsuit?

If you’re like me, maybe you don’t always respond to your own pain very well. Maybe there are times when you wish you would have responded differently. Maybe there are times when your response hurt other people. Maybe you’re not always able to handle your own pain alone. (Sometimes you need a great lawyer. My number is at the bottom of the page.)

What the “personal problem” comment recognizes—rightfully so—is that our pain is our responsibility. What it fails to acknowledge, however, is that when people need help and they don’t get it, other people get hurt—sometimes on a massive scale. It benefits all of us, therefore, to help those who ask for it.

Emotional pain is not a sign of weakness or self-indulgence. Rather, like physical pain, it is a sign that something needs attention. 

When will we learn to pay attention to our pain and seek the resources we need to respond in a healthy way? These are the skills we need to develop and pass on to our children. This is the culture we need to promote in the workplace. This is the essence of self care. When we care for ourselves in this way, something remarkable happens: we don’t have to hurt ourselves or other people (unless, of course, they are about to hurt us). Instead, we have room to help.

My heart goes out to everyone affected by the Sandy Hook shooting. May you seek and receive the care you need.

Texas has a statute that protects public whistleblowers who make a good faith report of a violation of law by a public agency or employee to the appropriate law enforcement agency. According to the statute, “appropriate law enforcement agency” is a governmental agency that the employee in good faith believes is authorized to:

(1)  regulate under or enforce the law alleged to be violated in the report; or

(2)  investigate or prosecute a violation of criminal law.

Tex. Gov’t Code § 554.002(a).

In Resendez v. TCEQ, No. 03-11-00244-CV, 2012 WL 6761529 (Tex. App.—Austin Dec. 28, 2012, pet. filed), Resendez reported to the head of her division that her supervisors knew about fraud being committed against the state but failed to report it. Soon after her report, Resendez was terminated.

According to state law, an administrative head of a department or entity who believes that money received from the state may have been misused is required to report the belief to the state auditor. A failure to make a report is a class A misdemeanor.

Finding that Resendez failed to allege a valid whistleblower claim, the trial court, Honorable Amy Clark Meachum presiding, dismissed the suit.

On appeal, the third court of appeals reversed.

Traditionally, Texas law has provided that a supervisor’s authority to internally investigate and discipline its employees, standing alone, is not sufficient to show that the supervisor is an appropriate law-enforcement agency. However, because Resendez’s supervisor instructed her to report fraud to management, the court of appeals held that there was a fact question as to whether Resendez reasonably believed that the head of her division was an appropriate law-enforcement agency.

To quote Paul in the movie Big, I don’t get it. How do a supervisor’s instructions to report fraud to management evidence a reasonable belief that management is an appropriate law-enforcement agency for the law allegedly violated here? Those instructions evidence the agency’s internal reporting procedures, an irrelevant fact.

The State has filed a petition for review at the Texas Supreme Court. I hope the court grants it. This case deserves a second look.

2012 brought Texas businesses lots of employment law changes. In case you missed it, here is a short video of my recent talk on the radio program Money for Lunch about some of the highlights, including social media, arbitration, the top EEO claim against Texas employers, and what you can do to prevent it.

http://www.youtube.com/watch?v=ktQUUgHJctA

Since law school, I have been a fan of the hypothetical. I’m also a big fan of December. My baby was due on Christmas Day. Until he was born, my husband and I affectionately referred to him as “Jesus Chuck” (after Jesus of Nazareth and another celebrated man, Chuck Norris).

So here’s a hypothetical for you: if Jesus had been born in Texas in 2012, would Mary have the right to breastfeed him in public? At her job? If Mary were unlawfully denied her right to breastfeed, would she have a cause of action, i.e., a right to sue for money damages or other relief?

This blog will address Mary’s right to breastfeed in public. For the answers to the second two questions, stay tuned to Texas Business Matters.

Breastfeeding in Public

Chapter 165 of the Texas Health and Safety Code addresses breastfeeding in public under Texas law. Section 165.002  provides: “A mother is entitled to breast-feed her baby in any location in which the mother is authorized to be.” Does this mean a mother may nurse her baby at the grocery store? The mall? The movie theater? Her child’s school? The park?

My reading of the plain language of the statute is a big YES. If the mother is authorized to be there, i.e., unless she is trespassing, she may nurse her baby there, and the owner cannot make any rules that prohibit or limit her right to nurse.

Some places interpret the law to mean that they may require the mother to nurse in a private room, set apart from where she is otherwise authorized to be. Austin ISD, for example, currently requires mothers to nurse in a private room. This policy prevents a mother from nursing her baby in the school lobby while waiting to pick up an older child, or while watching her older child in the school play.

Eanes ISD, on the other hand, has a policy that follows the language of the law. Specifically, “the choice of location is at the mother’s discretion. Mothers are allowed to nurse at any Eanes ISD location at which they are authorized to be.”

Similarly, at the University of Texas, “Our students, faculty, staff and visitors who are nursing mothers may use our Lactation/Quiet rooms, for comfort and privacy, if needed. However, they are not required to use them and they may also choose to breastfeed wherever the general public is authorized.”

I can personally attest to the nursing policies of Matt’s Famous El Rancho, Deep Eddy, Barton Springs, and Big Stacy Pool, which are: anything goes.

The courts have yet to determine whether Austin ISD’s policy is legal. In my opinion, it is not. Letting mothers breastfeed only in a separate room is like saying that restaurants may let non-whites eat only in a separate room. It contradicts the purpose of the law, which is: equal treatment.

And to the business who attempts to come between a mother and her hungry child, I say: be warned. Like Austin ISD, you may have to face something even more hair-raising than a partially-naked breast: the ire of nursing mothers.