Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When employees look for an employment attorney, they are looking for someone to advise them on the law as it relates to an employment matter. The ultimate goal and hope is for the employee to find and choose an attorney that they trust to counsel them and give them sound advice. Of course, it goes without saying that providing sound advice does not always mean that the lawyer is there to tell the employee what they want to hear. Instead, a lawyer is there tell them what they need to hear. The lawyer is there to assess the situation and provide their take on the pros and cons or possible outcomes, as well as access the viability of claims if any exist. 

Navigating employment relationships can sometimes be very difficult. When things turn sour at work, it can be like a bad marriage. When it comes to work separation, it can be similar to a divorce. After 10, 20, or 30 years of dedication to an employer, it is understandable that an employee can become emotional about their job and career. Feeling betrayed and hurt is not uncommon when it comes to a place where one has spent so many hours. When this happens, it is best to seek the counsel of an experienced employment attorney early – before making any final decisions. However, it is important to remember, as is in any area of the law, whether it be employment, family, or personal injury law, sometimes the news is good, other times the news is not so good. Whatever the news may be, the attorney is not there to sugarcoat things and make false promises. The attorney is there to prepare the person seeking legal advice to make an informed decision once they know how the law applies to their circumstances and understands their options.

As employment attorneys, we are often outraged by the stories that we hear. Sometimes, in these stories, we learn that an employer has violated the rights of an employee and we want to give the employee a plan of action and means of fighting back. Conversely, with at-will employment, some employees find that when an employment issue arises, they have very few rights. In some instances, they have no rights – no laws that protect them from mistreatment. This is of course not to say that the employer’s actions are justified, moral, or right but simply that there is little to no legal recourse for the employer’s unethical behavior. When this happens, we still aim to provide sound advice and put those that seek our counsel in the best possible position to make decisions.  

When you consult with an attorney, their goal is to give you advice based on their experience and knowledge of the law as it relates to your facts. When you hire an attorney, you have hired them to represent you based upon that same experience and knowledge. It is the hope that you have done so with the intention of listening to the advice you have paid for. Though outraged we might be, we must often set aside those emotions to best represent our clients to put them in the best possible position or to help them make the best decisions based upon their circumstances. This is not always an easy job, but it is what is required of us if we are to truly help those in need.

At the end of the day, your employment attorney cannot force you to do anything. However, as stated above, when seeking an employment attorney, it is important to find an attorney whose advice you feel you can trust. This person is going to be someone providing you with valuable guidance in an area of the law in which they regularly practice and/or specialize.  If you’ve hired them, you have asked them to be your advocate and advisor.  It is the hope that you’ve done so with the intent of letting them be the lawyer, while you be the client. At Wiley Wheler we specialize in labor and employment law, and we are well versed in the nuances of the situations that can arise within that realm. If you have concerns regarding your employment or feel like your rights have been violated, feel free to contact us to schedule a consultation. 

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

The Depp v. Heard trial had been dominating news outlets for the past month. In it, actor Johnny Depp accused actor, and former spouse, Amber Heard of defaming him when she claimed that Depp had abused her over the course of their relationship. Recently, a verdict in the trial had been reached. In this verdict, the jury unanimously found that Heard could not substantiate her claims against Depp and that she knew that her allegations of abuse were false when she published her essay outlining Depp’s abuse in 2018. The jury concluded that Heard acted with actual malice when writing her essay. The result of this case is largely unusual. The fact of the matter is that it is exceedingly difficult to prevail on defamation claims and it is the goal of this article to examine why that is.

In order to prevail on a defamation claim, a plaintiff must satisfy four different requirements. First, the plaintiff must show a false statement purporting to be a fact. In other words, an incorrect statement that is being asserted as true. Second, the statement must be published or communicated to a third person. Third, the plaintiff must show fault that amounts to at least negligence. Lastly, the plaintiff must show that the false statements caused some harm to the person that resulted in damages.

The Depp v. Heard, trial, however, operated on a different standard due to the fact that both actors are public figures. In The New York Times Co. v. Sullivan, the Supreme Court held that in order for a public figure to succeed on defamation claims, the public figure plaintiff must demonstrate that the false statements expressed were made with “actual malice.” In Sullivan, the Court specified that actual malice means that the defendant expressed the false statement with “knowledge that it was false or with reckless disregard of whether it was false or not.” In other words, the defendant making the defamatory statements had to know that the statements they were making were false or should have known that they were false.

Suppose, for example, that a plaintiff asserts a defamation claim against a defendant. The plaintiff has to prove to the court that the defendant knew, or should have known, that the statements made were false. The defendant has several avenues through which to contest it. The defendant could show that she was making a statement of an opinion due to the fact that the statement made must be factual. For example, “I think X is a fool” would be considered an opinion even if X has an IQ of 132. On the other hand, if the defendant were to say, “I think Y beats her children,” and this results in Y losing her job, then the plaintiff could very well succeed on a defamation claim given that that the defendant made this statement recklessly and that it resulted in damages to the plaintiff. 

The defendant could also make a showing that, even if her statements were false or factual, she believed them to be true. The defendant could simply claim that the statement was made due to a certain source that she cited or even researched. That could very well be enough to defeat a defamation claim. Alternatively, the false statement could have stemmed from word-of-mouth; perhaps an individual the defendant worked with communicated the statement to the defendant and the defendant believed it.

There are a several means through which one may defeat a defamation claim. Defamation is exceedingly difficult to show because the plaintiff, in a sense, has to show the court the defendant’s state of mind. As such, the Depp v. Heard verdict is an outlier, not the norm. If an individual believes that they have been defamed, then it is preferable to base that belief on research rather than on a blockbuster.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Last week, we discovered that Evan Skinner, our new summer intern, loves comedies, music, politics, and sports.  Also, he plays piano pretty well.  This week ask him about law school and other fun stuff . . . 

  1. 1) Why did you decide to go to law school?

I wanted to go to law school because I felt like it provided a good balance between things I enjoyed doing, like keeping up with politics and public policy, and things that would help me eventually find a stable career. As much as I love politics, it’s not necessarily easy to find a job with solid long-term prospects in that field, especially straight out of college. Law school was an opportunity to continue learning about things I enjoyed learning about while also setting myself up for success in an industry with a lot more long-term stability.

  1. 2) What is your favorite part of law school?

The thing I’ve enjoyed most about UT Law specifically is how high-quality all the instruction is. In undergrad, I had a lot of good professors but also more than a few that were just sort of O.K. At UT Law, every professor I’ve had would have been in my top five undergraduate professors. It’s really excellent and I didn’t expect it to be such a change.

  1. 3) What is your least favorite part of law school?

I expected this going in, and I don’t think anyone would say they especially like it, but the amount of stress law school can put on you is no joke. For as much as I’ve enjoyed my classes and professors, there can also be a lot of pressure, especially at the end of the semester and in exam season. Ultimately, I think I’m going to look back and be glad about that, but it’s not always awesome to experience in the moment.

  1. 4) Why do you want to work for a Plaintiff’s employment litigation firm this summer?

I’m very much about helping people, both in terms of policy preferences and in life in general. I think working to help workers, and helping people who don’t necessarily have a lot of resources or legal training against companies that have both of those things, is a really admirable thing to do. It’s something that makes me feel like I’m doing something to tangibly make people’s lives better.

  1. 5) Who is your favorite Supreme Court Justice, living or dead, and why?

Surprisingly enough, I’ve never really thought about who my favorite justice is. Out of the current Court, I probably like Sonia Sotomayor the most. As far as historical justices, Louis Brandeis, William Brennan, and Thurgood Marshall all did lots of good work and I have a lot of respect for all three of them. 

  1. 6) Who is the law?

I think that everybody has to be the law in some way, because there’s no way to separate the people that enforce the laws from the people who make the laws, and there’s no way to detach the people that make the laws from the people that choose the lawmakers. I think that’s good. Laws are a basic part of every functioning society and every member of that society needs to have some input, even if it’s indirect.

[Editor’s note – We also would have accepted “Judge Dredd” for question 6]

Thanks, Evan, for your insightful answers.  We hope you enjoy working at the firm this summer!

Colin Walsh
Texas Employer Lawyer Colin Walsh

Last week, Evan Skinner started working at our firm as a legal intern for the summer!  He is a rising 2L at the University of Texas School of Law here in sunny Austin, Texas.  So let’s get to know him!

The important stuff first.

1) What are your favorite books, movies, and tv shows?

My favorite book is probably A Prayer for Owen Meany by John Irving.  I don’t really have a reason for that choice, it’s just always stuck with me since the first time I read it in high school. Irving really has a knack for creating memorable characters, and I am always impressed by how Owen Meany manages to tell a coherent story over such a long time period without ever feeling like it’s skipped ahead. I also want to shout out The Ball Is Round by David Goldblatt, which is basically a comprehensive history of soccer around the world and its impact on society and culture; I’m a huge sports fan and politics nerd and The Ball Is Round is really incredible if you’re into both of those things and how they intersect.

As far as movies and TV shows, I like anything that’s funny. I like the classic mid-2000s comedies like Superbad, Dodgeball, and Step Brothers, and out of those I’d have to pick Superbad as my favorite movie. My favorite TV show is Bob’s Burgers, and it’s not close. I don’t think I’ve ever watched an episode of that show without laughing out loud multiple times. The dialogue and voice acting are always top-tier, and it manages to be consistently funny while also staying pretty heartwarming and non-cynical, which I think all of the best sitcoms do.

2) What kind of music do you like and what are your favorite bands?

I like to joke that my music taste is “a million miles wide and an inch deep,” because I listen to a little bit of everything but I’m only an expert on a few artists. I like indie rock, rap, and punk the most as far as genres go, and the catchier a song is the more likely it is that I’ll like it. Out of those genres, some of my favorite artists are Green Day, R.E.M., Figurine, Denzel Curry, and Kanye West. If I had a band, it would probably sound like Teenage Fanclub.

3) Where are you from?

I was born in Oklahoma and spent the first part of my life there before moving to Omaha, Nebraska. A few years later, when I was nine, we moved down to the Arlington, Texas area, which is where I’d say I’m “from.” I lived there until I went to college and I’ve spent longer in the DFW area than anywhere else in my life.

4) What are your hobbies?

In general, I like doing anything that lets me learn something I didn’t know before, whether that’s reading a book, watching a documentary, or even just seeing something cool on YouTube. I follow a lot of podcasts and watch a lot of sports, as well. The most exciting days for me are election days (anywhere in the world) or football Saturdays in the fall.

5) What is your favorite holiday?

At this point, I’d have to say Thanksgiving. I like food and football, and it’s a nice fall holiday that doesn’t extend across months like the Christmas season does nowadays. I do also enjoy July 4th, because I think a lot of the traditions surrounding it (like parades and fireworks) are really fun and don’t come up a lot the rest of the year. We should all have more parades as part of our daily life.

6) Do you have any siblings?

Yes, one younger brother.

7) What is one interesting fact you want people to know about you?

I always struggle with questions like this because they’re so open-ended. I guess I’ll take this opportunity to mention the thing I’m proud of that comes up the least often, which is that I can read music and play the piano pretty well. Although I’m just out of practice enough that maybe putting that out in public isn’t the best idea.

Next week, we ask Evan some law school and law-related questions!

Jairo Castellanos
Austin Employment Lawyer Jairo Castellanos

Summary: 

 While many individuals are familiar with how overtime calculations work, this calculation is often times made more difficult in the case of tipped employees. In this blog, I am to shed some light in some of the most often seen errors that are seen by both employers and employees in calculating overtime rates. 

Most, if not all, people are aware of the requirement imposed by the Fair Labor Standards Act (“FLSA”) that all covered employers must pay their employees a minimum wage of $7.25 for every hour worked. Moreover, most people are familiar with the fact that if you are a tipped employee an employer is able to take what is often referred to as a “tip credit” whereby an employer is allowed to pay an employee as little as $2.13 an hour. This is of course with the assumption that the employee in question is still making at least $7.25 an hour after the total sum of tips they receive are taken into account. 

 The inquiry with tipped employees does become murkier with regards to what is the proper overtime rate. Under the FLSA overtime is paid at a rate of time and a half of an employee’s regular rate, but with tipped employees this calculation often leads to various errors. For example, some employers attempt to calculate their tipped employee’s overtime pay based on their tip credit rate of $2.13 an hour. In other words, some employers claim that a tipped employee’s overtime rate is only $3.20 an hour. This is incorrect. On the other hand, some individuals believe that the true regular rate at which overtime is calculated is whatever their hourly rate with tips included is correct. This means that if on average an employee makes $10 an hour after tips, their overtime rate should be $15 an hour. This is also incorrect.

 The Department of Labor (“DOL”) has issued regulations that the actual regular rate at which a tipped employee’s overtime pay is calculated is actually $7.25. Indeed, under 29 C.F.R. §531.60, any tips received by an employee in excess of the tip credit need not be included in the calculation of the regular rate for overtime purposes. U.S. Department of Labor, Wage and Hour Division Opinion Letter FLSA2021-5. This means that no matter how many tips an employee receives, the overtime rate owed to them by the employer for hours worked over 40 is still only $10.88. This of course applies only to payments that are considered tips under the FLSA.

 A major, and often overlooked, payment that is not considered a tip are services charges. Service charges are defined as compulsory charges that are paid to the employer and not the employee. Nonetheless, often times the employer provides these payments to its employees. When that occurs the DOL has stated that this amount must be used in calculating the regular rate of an employee for overtime purposes. 

 To illustrate all of this, the DOL has provided the following example:

 Total Straight Time Wages: 

·      18 hours worked as a server × $7.25 per hour ($2.13 cash wage + $5.12 tip credit) = $130.50 

·      3 shifts worked as a bartender × $75.00 per shift = $225.00 

·      $130.50 + $225.00 + $160.00 (service charges)3 = $515.50 (total straight time pay) 

 Regular Rate of Pay Calculation: • 

·      $515.50 (total straight time pay) / 42 (total hours worked) = $12.27 (regular rate of pay) 

 Overtime Pay Due: 

·      $12.27 (regular rate of pay ) × .5 (half-time due for all hours worked over 40) × 2 (overtime hours) = $12.27 (overtime premium due)

 U.S. Department of Labor, Wage and Hour Division Opinion Letter FLSA2021-5

 As can be seen above, it is not always crystal clear how to go about calculating one’s overtime. This is especially true if you are a tipped employee. That is why it is it is imperative to seek out an attorney that specializes in employment law to assist you if you feel you are not being adequately compensated for your work. At Wiley Walsh, P.C. we specialize in employment, and we are more than happy to go over your situation so that we can assess what we are able to do for you. Feel free to contact us to schedule an appointment with one of our attorneys. 

 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

When it comes to employment in the state of Texas, it is governed by the doctrine of at-will employment. This means that for many employment disputes, employees will have no recourse. There are occasions when businesses hire or promote bad employees into supervisory or management positions. There are occasions when supervisors and management fail to enforce or follow company policies. However, it would be impossible for courts to monitor and dictate all of the daily operations of each and every company nor does the law allow it. What the courts are allowed to do is hear and protect the rights that are actually given to employees under various laws when an employer has engaged in unlawful conduct.  What is unfair, unprofessional, or unethical conduct does not always equal unlawful.  

Where the law fails to protect employees, it is important for companies to have human resources departments to enforce policies and to ensure fairness. Where the law fails to protect employees, smart business operations make it essential for companies to have strong leadership in place willing to do the right thing. This is not because the law dictates, because it often does not, but because good business practices, professionalism, ethics, and the desire to retain good and hardworking employees should be motivation enough.  

Yet, what happens to employees when companies don’t make smart business decisions and throw professionalism and ethics out the window?  At-will employment means there may be no law that stops employers from making bad decisions that affect their employees and businesses.  At-will employment may mean that hardworking employees may have no legal claims to pursue if they are wrongfully terminated. Nevertheless, at-will employment also means that hardworking employees have the right to leave when they have endured all they can tolerate.  Employees have the right to take their talents to employers that will value them.

Sometimes it can be difficult for an employee to decide what to do when their working conditions have become untenable. They may have confusing feelings or lingering questions.  It could be a manager that treats them differently and holds them to different or impossible standards. Is this treatment based on some discriminatory reason or is it a situation where the company has made a poor hiring or promotional decision?  An employee may voice a complaint to human resources and feel they are facing retaliation after having made that complaint. Did the employee engage in legally protected conduct or did the employee make a complaint that’s not protected under the law?

When an employee has lingering questions about their treatment at work and is deciding what their next step should be – staying to fight or walking away – they often want to know and understand their rights.  When an employee has questions, our employment attorneys are available for consultation.  

A consultation with an attorney does not ensure that a legal claim follows. However, a consultation with a qualified employment attorney affords an employee an opportunity to discuss their concerns when they are: (1) feeling that something is not right at work and that they are being treated differently for some reason or another; (2) wanting to know how to properly voice their complaints to their employer; (3) when they are concerned about obligations they may have after quitting; or (5) wanting to know if there is a battle to fight with their employer or should they find something better and simply walk away.

Navigating employment law and employee rights can be difficult.  An early consultation may help an employee prepare and protect their rights.  An early consultation may even help an employee before they do something that jeopardizes any legal claims they may have. If the law does not provide protections, a consultation may help an employee make decisions about continuing their employment or taking their very valuable skills elsewhere.  

Colin Walsh
Texas Employer Lawyer Colin Walsh

We’ve taken another case up to the Supreme Court! In Robertson v. Intratek Computer, Inc., a pending petition for certiorari at the Supreme Court, we asked the Court to determine whether a government contractor or grantee may force an employee to arbitrate their whistleblower retaliation claims under 41 U.S.C. § 4712.  Our position is that the statute prohibits enforcement of arbitration agreements for such claims.  And the Executive Branch of the U.S. Government agrees with us!

As a preliminary matter, employment arbitration is a private, generally confidential, and secret judicial process involving a private judge paid who issues a binding decision that usually cannot be appealed to any court.  Studies show this process significantly favors employers.  Further, according to the attorneys general of all 50 states, the District of Columbia, and several U.S. Territories, the confidential nature of arbitration can be especially harmful.  For example, according to that collation, confidential arbitration of sexual harassment claims creates a “culture of silence that protects perpetrators at the cost of the victims.”    H.R. Rep. 117-234, 117th Cong., 2d Sess., 4 (report on the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, January 28, 2022).

In our case, the statute at issue prohibits retaliating against  an employee of a government contractor, subcontractor, grantee, or subgrantee for reporting

gross mismanagement of a Federal contract or grant, a gross waste of Federal funds, an abuse of authority relating to a Federal contract or grant, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation related to a Federal contract (including the competition for or negotiation of a contract) or grant.

41 U.S.C. § 4712(a)(1).  If the employee is retaliated against, the employee must report the retaliation to the Office of the Inspector General for the federal agency involved in the contract or grant.  

Under subsection (c)(2) of that statute, if the OIG does not grant relief or fails to take action within a certain period of time, the employee may file a lawsuit in federal court and request a jury trial.   41 U.S.C. § 4712(c)(2).  Under subsection (c)(7), “[t]he rights and remedies provided for in this section may not be waived by any agreement, policy, form, or condition of employment.”

We contend that the nonwaiver provision in subsection (c)(7) prohibits enforcement of an arbitration agreement because it would waive the right or remedy of a federal trial.  So far, not a single judge has agreed with us, including a magistrate judge, a district court judge, and three court of appeals judges.  But we are unbowed and unbroken because on April 11, 2022, the Solicitor General filed a brief on behalf of the United States saying that our interpretation is right: “Robertson is correct that Section 4712(c)(7) precludes a waiver of that judicial remedy, and the court of appeals erred in holding otherwise.”

This is an extremely important case because the decision could affect up to 6.1 million people who work for government contractors and grantees.  These employers receive billions if not trillions of dollars of taxpayer dollars.  Whistleblowers are, therefore, essential to exposing the fraud, waste, and abuse that may occur.  The importance of whistleblowers is not mere speculation.  In fact, since 1986, the government has recovered over $70 billion because of whistleblowers under just one statue, the False Claims Act.  See https://www.justice.gov/opa/pr/justice-department-s-false-claims-act-settlements-and-judgments-exceed-56-billion-fiscal-year.

Given the Solicitor General’s position that the court of appeals erred, we are hopeful that the Supreme Court will vacate the appellate ruling and send it back to that court of appeals for reconsideration in light of the view of the United States.  Our petition is currently set for conference on May 12, 2022, which is when a decision could be made on whether to grant or deny cert.  Watch this space for updates!

To read the briefs filed by all of the parties including the Solicitor General of the United States, visit:

 https://www.supremecourt.gov/search.aspx?filename=/docket/DocketFiles/html/Public/20-1229.html

Marcos De Hoyos
Texas Employment Lawyer Marcos De Hoyos

Justice Ketanji Brown Jackson’s nomination to the Supreme Court is notable for several reasons. Not only is Justice Jackson the first African-American woman to serve on the Supreme Court, but she is the only member of the Court to have served as a Federal Public Defender. Justice Jackson’s appointment to the Court carries several ramifications and potential changes to the Court that encapsulate decision making on everything from criminal law to constitutional law to property law. The most notable implication of Justice Jackson’s appointment to the Supreme Court, strictly for the purposes of this article, is her effect on employment law. Justice Jackson has had a varied history in employment law. This article will delve into that history and discuss what effect, if any, the appointment Justice Jackson will have on employment law. 

Justice Jackson has issued decisions that have benefited unions. For example, in AFL-CIO v. Federal Labor Relations Authority, Justice Jackson invalidated a policy change made by the Federal Labor Relations Authority that effectively restricted the scope of workplace changes subject to collective bargaining. Again, during her time as a trial judge, Justice Jackson invalidated executive orders made by President Trump that imposed temporal limits on contractual negotiations between federal agencies and unions, limited the ability of federal employees in union activities whilst at work, and made it significantly easier for federal agencies to terminate employees. These are but a few of many examples of Justice Jackson’s rulings in favor of unions.

Justice Jackson’s rulings are significant in that her appointment could lead to more laws that favor unionization. Given the recent developments with Amazon and Starbucks (to name but a few), the United States may be on the cusp of experiencing a new era in labor activism. Justice Jackson’s appointment could be enough to usher the U.S. into that era or, at the very least, incentivize workers to further strive for that new era.

However, Justice Jackson’s decisions on workplace discrimination and retaliation do tend to be more varied. For example, in Raymond v. Architect of the Capitol, Justice Jackson granted an employer’s motion for summary judgment in a case alleging race and national origin discrimination. In this case, a three-person panel failed to select a black candidate of Jamaican descent for promotion. Justice Jackson found no evidence of discrimination, despite the fact that one panelist had made comments regarding the plaintiff’s national origin. Justice Jackson reasoned that there was no evidence, other than the employee’s testimony, that the comments had been made. In contrast, in Park v. Hayden, Justice Jackson denied an employer’s motion for summary judgment on a national origin discrimination case because she reasoned that the factual inconsistencies and credibility determinations needed to be resolved by a jury rather than a judge.

Similarly, with retaliation claims, Justice Jackson has had a varied history. For example, in Manus v. Hayden, Justice Jackson denied a plaintiff’s retaliation claim due to the lack of a causal connection. In this case, an employer was providing an employee with baseless critiques. Justice Jackson found that because the critiques began  prior to the protected complaint being filed, there was no causal connection. However, in Alma v. Bowser, another retaliation claim, Justice Jackson found in favor of the plaintiff and wrote a scathing opinion directed at the defendant.

Justice Jackson’s appointment is historic for several reasons, and she will undoubtedly leave a lasting impact in Supreme Court rulings. Focusing on her significance in employment law, however, does carry more uncertainty. Though Justice Jackson will, more than likely, aid in the progression of union and labor laws, her decisions regarding workplace discrimination and retaliation remain ambiguous given her history. One will have to keep a watchful, but hopeful eye on the new appointee. 

Kalandra Wheeler
Texas Employment Lawyer Kalandra Wheeler

During the 2020 United States presidential campaign, President Joe Biden pledged to appoint a Black woman to the United States Supreme Court should there be a vacancy.  Now, in 2022, this pledge may become a reality with Judge Ketanji Brown Jackson, who has a track record that proves that she is both qualified and capable.

I applaud Judge Jackson on her grace under pressure, as Monday, March 21, 2022, marked the beginning of her confirmation hearing before the Senate Judiciary Committee. The grind of the hearing process for Judge Jackson was magnified on Tuesday, March 22, with the beginning of what would become more than 20 hours of questioning from the committee, which ended Wednesday, March 23.

At the conclusion, the public may have been left with one final question: was this confirmation hearing really about Judge Jackson or was this confirmation hearing really political grandstanding?  

Judge Jackson was repeatedly questioned regarding sentences she handed down in a select few child pornography cases. However, legal experts weighed in on this and found that the sentences she delivered, when compared to a bipartisan subsection of district judges, were in line with that of other judges.  However, this was of no moment to committee members that continued this line of questioning.  

Additionally, Judge Jackson’s work as a public defender was made to be an issue, in particular her work on cases for detainees at Guantanamo Bay.  The committee members attacking her work on these cases, did not care about basic principles of the criminal justice system such as, “innocent until proven guilty” and an accused right to counsel.  

The attack on Judge Jackson had nothing to do with her qualifications, as her actions have unmistakably been in keeping with the actions of a great lawyer and judge.  As an attorney her job was to zealously advocate for her clients. As a judge, her duty is to be neutral and apply the law to the facts.  In both capacities, there is a duty to uphold and follow the law, which is exactly what her record shows she has done.  

The constant attacks were nothing more than political propaganda for those committee members, putting topics on rewind and repeat to support their claims of being tough on crime and high on national security.  Sadly, the attacks against Judge Jackson only affirmed for me the rights people are willing to trample in pursuit of what they believe is justice.  The ideology behind the attacks such as the ones aimed against Judge Jackson is the very reason the justice system fails when it does. Justice is about doing what is right, not always about doing what is popular.  

Judge Jackson was questioned extensively about critical race theory and responded that it doesn’t come up in her work as a judge.  She consistently outlined her approach to cases that come before her court, all with an aim on remaining impartial and applying the law.  However, committee members pressing this issue were not interested in her judicial competence and integrity. Clearly, this was nothing more than committee members using this platform to garner political support from people that have criticized critical race theory without even understanding what it actually is. Worse yet, they understand it, but want it erased because it shines light on the role race has played in framing the social institutions of America.

Judge Jackson was questioned regarding gay marriage, with opponents making it clear to their base that they remain opposed.  She was asked to define the word woman, an opportunity for committee members to bring gender politics into the arena.  She was questioned regarding court packing, a matter that is a policy issue for Congress.  It was a free-for-all for political grandstanding.

At the end of the day, aside for the historical significance of her nomination, Judge Jackson remains an outstanding selection for the U.S. Supreme Court.  

Established in 1789, with over 233 years of history, there have been 115 justices appointed to the U.S. Supreme Court.  Of those 115 justices, 108 have been White males.  Only two have been African American – the first being Justice Thurgood Marshall in 1967. Five have been women, the first being Sandra Day O’Connor in 1981. In 2009, Justice Sonia Sotomayor was appointed to the Court, becoming the third woman in the Court’s history, but the first woman of color—the first Hispanic, first Latina.

Black women are just as capable of shouldering the responsibilities bestowed upon the U.S. Supreme Court. Today’s America is drastically different than that of 1789, it is well past the time for our courts to reflect that difference in meaningful ways and this is yet another opportunity to do so.

Colin Walsh
Texas Employer Lawyer Colin Walsh

Hark, frēndes! The feld flours blosme and the sǒnne shines.  “Tis spring.  And that means its Ren Fest season!

Right now, through April 24, just outside of Austin there is the Sherwood Forest Faire.  After that, head north by horse for three days and you will arrive at Scarborough Renaissance Festival.  If you are going to Scarborough Faire, can you please check in on one who lives there and see if my Cambric shirt with no seems or needlework is ready?

In honour of the season, I thought it might be fun to look at some of ye olde qui tam actions.  My colleagues have previously written much more useful and informative blogs on modern American qui tams, which enable individuals to sue government contractors and grantees on behalf of the government for fraud.  Mostly these involve Medicare and Medicaid fraud, but there are other types of fraud claims that can be brought through qui tam actions as well.  If you wish for such practical and helpful information because you think your employer is defrauding the government, let me refer you to the following two blogs:

Julie St. John’s 2021 blog, “When You Believe Your Employer is Defrauding the Federal Government – Protection from Retaliation, available at:

https://www.texasemploymentlawyer.com/2021/04/when-you-believe-your-employer-is-defrauding-the-federal-government-protection-from-retaliation/

Deontae Wherry’s 2020 blog, The False Claims Act: Suing Your Employer on Behalf of the Government, available at:

https://www.dallasemploymentlawyer.com/the-false-claims-act-suing-your-employer-on-behalf-of-the-government/

Essentially, a qui tam action is an action that allows enforcement of the law by an uninjured private citizen on behalf of the government in exchange for a share of the proceeds obtained in a successful prosecution of the claim.  You can find laws providing for such actions going all the way back to Ancient Rome.  For example, in the first century B.C.E., Cato the Younger both sued his political opponents and was sued by them for alleged violations of criminal law.  In the Sixth Century C.E., during Justinian’s reign, a private citizen could be prohibited from bringing a private enforcement action if that citizen had already brought two prior qui tam actions.

In 695 C.E., the King of Kent in England passed a law that prohibited work between sunset on Saturday and sunset on Sunday.  If you informed the authorities about someone who violated that law, you would be entitled to half of the healsfang, or fine, collected from that damnable overachiever who worked on the weekends as well as half of the profits form the labour that was done during that time.

In the fourteenth century, the English Parliament provided many avenues for qui tam actions as a way to ensure enforcement of the laws.  Here are a couple fun ones.

The 1331 law providing a qui tam mechanism to enforce aspects of the 1328 Statute of Northampton is relevant to the current faire season.  The Statute of Northampton, in part, regulated the length of time fairs could remain open.  However, both merchants and lords had incentives to keep fairs open longer.  Merchants obviously wanted to sell more product and the lords who hosted the fairs often collected tolls on the total merchandise sold at the fair.  So, to ensure compliance with the law, Parliament enabled private citizens to sue on behalf of the King and, as reward, receive a fourth of what was forfeited.  The penalty for violations was double the value of what was sold outside the permissible time for the fair.

In 1455, Parliament passed an Ordinance limiting the number of lawyers that could practice in the City of Norwich to two and in the counties of Norfolk and Suffolk to six each.  The preamble to this Ordinance is too good not to quote at length:

Whereas of Time not long past within the City of Norwich, and the Counties of Norfolk and Suffolk, there were no more but six or eight Attornies at the most, [coming] to the King’s Courts, in which Time great Tranquillity reigned in the said City and Counties, and little Trouble or Vexation was made by untrue or foreign Suits; And now so it is, that in the said City and Counties there be Fourscore Attornies, or more, the more Part of them having no other Thing to live upon, but only his Gain by [the Practice of] Attorneyship, and also the more Part of them not being of sufficient Knowledge to be an Attorney, which [come] to every Fair, Market, and other Places, where is any Assembly of People, exhorting, procuring, moving, and inciting the People to attempt untrue [and] foreign Suits, for small Trespasses, little Offences, and small Sums of Debt, whose Actions be triable and determinable in Court Barons; whereby proceed many Suits, more of evil Will and Malice, than of the Truth of the Thing, to the manifold Vexation and no little Damage of the Inhabitants of the said City and Counties, and also to the perpetual [Diminution] of all the Court Barons in the said Counties, unless convenient Remedy be provided in this Behalf.

Ordinance, 33 Hen. VI, ch. 7 (1455).  The Ordinance was enforced through a qui tam action by private citizens against any person who acted as a lawyer without proper admission to the King’s courts.

I could provide many more examples of historical qui tam actions, but I have a faire to get to!

I am heavily indebted to the following resources for the above blog post, which also provide great further reading!

  • R. Beck, The False Claims Act and the English Eradication of Qui Tam Legislation, 78 N.C. L. Rev. 539 (2000), available at: http://scholarship.law.unc.edu/nclr/vol78/iss3/2
  • Jonathon Rose, Medieval Attitudes Toward the legal Profession: The Past as Prologue, 28 Stetson L. Rev. 345 (1998),

available at  https://www.stetson.edu/law/lawreview/media/medieval-attitudes-toward-the-legal-profession-the-past-as-prologue.pdf

  • Middle English Compendium, https://quod.lib.umich.edu/m/middle-english-dictionary