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 9th Edition

The Manager’s
Legal Handbook

Lisa Guerin, J.D.

Sachi Barreiro, J.D.

LAW for ALL

NINTH EDITION JANUARY 2018
Cover Design SUSAN PUTNEY
Production SUSAN PUTNEY
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Acknowledgments
The authors would like to thank:
On the first edition, our wonderful editor, Shannon Miehe, whose sense of
humor, organizational skills, lightning-fast speed, and careful editing made
working on this book a pleasure.
On subsequent editions, our editor and friend, Stephanie Bornstein, who
helped transform the book into a must-have legal guide for managers.
Mary Randolph, Jake Warner, and Janet Portman, all of whom helped us
figure out how to organize this material—and how to avoid the dreaded
“scope creep.”
Ella Hirst, Alayna Schroeder, Drew Wheaton, and Stephen Stine for
meticulously researching and compiling the state charts.
Stan Jacobsen, for his research help and ever-positive attitude.
John M. True, III, formerly of Leonard Carder, LLP, in Oakland, California,
for writing some of the privacy material and helping out with the information
on unions.
Philip Monrad, also of Leonard Carder, for his generous help with the
unions chapter.
About the Authors
Lisa Guerin worked for Nolo as a research and editorial assistant during her
years as a law student at Boalt Hall School of Law. After a stint as a staff
attorney at the U.S. Court of Appeals for the Ninth Circuit, Lisa worked
primarily in the field of employment law, in both government and private
practice. Lisa has litigated on behalf of her clients in all levels of state and
federal courts and in agency proceedings. Lisa returned to Nolo as an editor,
where she specialized in employment law and civil litigation.
Sachi Barreiro is a legal editor at Nolo specializing in employment law and
workers’ compensation law. Before joining Nolo, Sachi was in private practice
as an employment lawyer, advising businesses on their legal obligations and
litigating a variety of employment matters. Prior to that, she gained valuable
litigation experience representing plaintiffs in personal injury lawsuits.
Sachi received her law degree with high honors from the University of San
Francisco School of Law.
Table of Contents

Introduction
Navigating the Maze of Employment Law..............................................................1
How to Use This Book.........................................................................................................................2
Additional Resources...........................................................................................................................3

1 Hiring ........................................................................................................................................................5
Job Postings..............................................................................................................................................6
Interviews..................................................................................................................................................9
Making Promises..................................................................................................................................12
Applicants With Disabilities...........................................................................................................13
Testing Applicants...............................................................................................................................15
Background Checks............................................................................................................................18
Ordering Consumer Reports..........................................................................................................21
Young Workers..................................................................................................................................... 22
Offer Letters.......................................................................................................................................... 25
Written Employment Contracts.................................................................................................. 26

2 Compensation and Hours..................................................................................................63

The Fair Labor Standards Act.........................................................................................................65
Deciding What to Pay People........................................................................................................ 68
The Minimum Wage.......................................................................................................................... 73
Overtime..................................................................................................................................................76
Meal and Rest Breaks........................................................................................................................ 82
Lactation Breaks.................................................................................................................................. 83
Travel Time............................................................................................................................................ 84
On-Call Time........................................................................................................................................ 86
Flexible Work Schedules.................................................................................................................. 87
Pay Docking and Unpaid Suspensions...................................................................................... 90
Garnishments....................................................................................................................................... 92
Equal Pay................................................................................................................................................. 95
Record-Keeping Requirements......................................................................................................97
3 Discrimination ............................................................................................................................121
Antidiscrimination Laws................................................................................................................123
Race and National Origin..............................................................................................................128
Age........................................................................................................................................................... 132
Gender, Pregnancy, and Sexual Harassment........................................................................ 135
Genetic Information........................................................................................................................138
Sexual Orientation and Gender Identity................................................................................ 141
Religion.................................................................................................................................................. 143
Expression of Religious Beliefs.....................................................................................................144
Disability...............................................................................................................................................145

4 Personnel Basics....................................................................................................................... 165

Personnel Policies and the Law...................................................................................................167
At-Will Employment........................................................................................................................169
Employee Handbooks.....................................................................................................................173
Preventing Workplace Harassment..........................................................................................177
Communicating With Employees Effectively.......................................................................180
Performance Appraisal...................................................................................................................185
Creating and Maintaining Personnel Files.............................................................................188
Family-Friendly Workplace Policies..........................................................................................191

5 Time Off........................................................................................................................................... 203

Vacation and Sick Leave.................................................................................................................206
Family and Medical Leave.............................................................................................................208
Pregnancy and Parental Leave.................................................................................................... 213
Jury Duty and Voting......................................................................................................................216
Military Leave..................................................................................................................................... 217
Domestic Violence Leave..............................................................................................................218
Other Types of Leave.......................................................................................................................220

6 Privacy ................................................................................................................................................261
The Right to Privacy.........................................................................................................................263
Testing Current Employees..........................................................................................................265
Internet Monitoring........................................................................................................................268
Why Your Company Needs an Email Policy.........................................................................269
Employee Posts and Social Networking.................................................................................272
 Off-Duty Conduct............................................................................................................................277
Workplace Searches.........................................................................................................................280

7 Health and Safety.................................................................................................................... 285

Health and Safety Laws..................................................................................................................286
Workers’ Compensation................................................................................................................289
Affordable Care Act ........................................................................................................................291
Cell Phones and Driving.................................................................................................................295
Smoking................................................................................................................................................297
Drugs and Alcohol............................................................................................................................297

8 Unions ............................................................................................................................................... 307

The National Labor Relations Act.............................................................................................308
Representation Elections and Organizing Campaigns..................................................... 312
Election Statements......................................................................................................................... 314
Shop Talk.............................................................................................................................................. 316
Protected Concerted Activity..................................................................................................... 317
Union Shops and Union Dues..................................................................................................... 319
Collective Bargaining.......................................................................................................................320
Company Unions and Employee Committees....................................................................323
Strikes.....................................................................................................................................................324

9 Independent Contractors.................................................................................................331
Classifying Workers..........................................................................................................................332
Benefits and Drawbacks of Using Independent Contractors.......................................338
Important Documents When Hiring Independent Contractors................................342
Written Agreements With Independent Contractors.....................................................344
Copyright Ownership.....................................................................................................................347

10 Trade Secrets................................................................................................................................355
The Law of Trade Secrets...............................................................................................................356
Protecting Trade Secrets................................................................................................................360
Nondisclosure Agreements..........................................................................................................364
Noncompete Agreements............................................................................................................366
Nonsolicitation Agreements.......................................................................................................368
Hiring From Competitors..............................................................................................................370
 11 Handling Workplace Problems....................................................................................375
Disciplining Workers.......................................................................................................................376
Investigating Complaints...............................................................................................................379
Retaliation............................................................................................................................................382
Workplace Violence.........................................................................................................................388
Liability for an Employee’s Actions...........................................................................................392

12 Firing Employees...................................................................................................................... 399

Illegal Reasons for Firing Employees.........................................................................................400
Firing Employees With Employment Contracts.................................................................403
Making the Decision to Fire.........................................................................................................406
How to Fire..........................................................................................................................................409

13 Layoffs .................................................................................................................................................417
Before Conducting a Layoff.......................................................................................................... 418
Alternatives to Layoffs....................................................................................................................422
Making the Cut..................................................................................................................................425
Conducting a Layoff........................................................................................................................427
Notice Requirements for Layoffs...............................................................................................432

14 Departing Workers................................................................................................................ 445

References............................................................................................................................................446
What to Tell Coworkers When an Employee Leaves........................................................449
Health Insurance...............................................................................................................................450
Severance.............................................................................................................................................. 451
Releases.................................................................................................................................................453
Unemployment Benefits...............................................................................................................455

Appendix
Resources........................................................................................................................................ 481
Federal Agencies...............................................................................................................................482
State Labor Departments...................................................................................................................484
State Agencies That Enforce Laws Prohibiting Discrimination in Employment....... 488

Index............................................................................................................................................................... 493
 I
INTRODUCTION

Navigating the Maze of

Employment Law

How to Use This Book...............................................................................................................................2

Additional Resources................................................................................................................................3
2  |  THE MANAGER’S LEGAL HANDBOOK
S
ome managers learn the hard way
that good intentions aren’t enough. In
these days of burgeoning employment
laws, regulations, and lawsuits, successfully
and safely managing workers (employees
and independent contractors alike) requires
a whole lot more than just following your
instincts. Lawmakers and courts have created
a complicated web of dos and don’ts that
covers the entire spectrum of workplace
issues, from hiring to firing and everything
in between. If you are a supervisor, manager,
or human resources specialist, you’ll need
to learn how to navigate this legal maze or
risk serious trouble for your company and
yourself.
Fortunately, learning how to manage
workers on a daily basis doesn’t have to be
time-consuming, difficult, or even unpleasant.
This book takes these complicated issues and
boils them down to your basic obligations, so
you can feel confident that you’re managing
your employees effectively and within the
confines of the law.
How to Use This Book
This book gives you the information you
need to deal with many common workplace
concerns and issues. Each chapter focuses on
a specific employment law topic—such as
hiring, compensation and hours, privacy in
the workplace, and so on—and breaks that
subject down into the issues managers are
most likely to face.
Of course, every company is different,
and every manager has varying areas of
responsibility and expertise. And, not every
manager will have the authority to make
ultimate decisions on matters of policy or
serious personnel matters, such as firing
and layoffs. The information in this book
provides some legal background that will
help you understand your role in the process,
however your company defines it.
Each chapter includes:
• Frequently Asked Questions (FAQs). We
introduce you to the chapter topic
through succinct answers to questions
that managers and employers commonly
face.
• Topic Headings. We break down the
chapter’s topic into a series of separate
sections, so that you can get right to the
information you need. That way, you
can focus only on the rules that apply to
the situation at hand without having to
wade through an entire chapter looking
for your answer.
• Lessons From the Real World. Learn from
the failures and victories of companies
that have been taken to court by their
employees.
• Legal Dos and Don’ts. We provide a
handful of strategies to follow—and
traps to avoid—as you implement the
information in each chapter.
 INTRODUCTION |  NAVIGATING THE MAZE OF EMPLOYMENT LAW  |  3
• Test Your Knowledge. Find out how well
you understand each topic by taking
our end-of-chapter quiz and checking
your answers.
• 50-State Charts. At the end of the chapter,
we provide you with a summary
of information on your state’s legal
requirements, in addition to the federal
law covered in the chapter.
You can read through the entire book
at once, you can pick and choose among
chapters of special interest to your company,
or you can use the book as a desk reference
by consulting particular sections as issues
come up. No matter how you use the book,
the basic information we provide will help
answer your most common employment
questions.
This book covers rules for private
employers only. It does not apply to
government employees, who are typically
subject to other laws.
The federal laws we discuss are the
minimum requirements that employers
in all states must follow. However, many
states have additional laws that may be more
restrictive. As you read through this book,
keep in mind that when both a federal and
state law apply, your company must follow
whichever rule is more beneficial to the
employee.
Additional Resources
Although most managers can find everything
they need in this book, you might occasion-
ally have a problem that requires you to
seek additional help. We will alert you to
those potential trouble spots and point you
toward resources that can give you the extra
information you need.
The appendix (at the end of the book)
contains a list of resources you can consult for
more information. These resources include:
• contact information for the federal
agencies that enforce federal workplace
laws, including the Equal Employment
Opportunity Commission (EEOC),
the Occupational Safety and Health
Administration (OSHA), the Department
of Labor (DOL), and the Federal Trade
Commission (FTC).
• contact information for the state
agencies that enforce state workplace
laws, including state departments of
labor and state fair employment offices.
Get Updates and More Online
When there are important changes to the
information in this book, we’ll post updates
online, on a page dedicated to this book:
www.nolo.com/back-of-book/ELBA.html
You’ll find other useful information there, too,
including legal updates and blog posts.
●
 1
C H A P T E R

Hiring

Job Postings....................................................................................................................................................6
Interviews........................................................................................................................................................9
Making Promises...................................................................................................................................... 12
Applicants With Disabilities............................................................................................................... 13
Testing Applicants................................................................................................................................... 15
Avoiding Disability Discrimination...............................................................................................15
Skills Tests...................................................................................................................................................15
Aptitude, Psychological, and Personality Tests......................................................................16
Lie Detector and Honesty Tests.....................................................................................................16
Medical Tests............................................................................................................................................17
Drug and Alcohol Tests.......................................................................................................................17
Background Checks................................................................................................................................ 18
Ordering Consumer Reports.............................................................................................................. 21
Get Written Consent............................................................................................................................22
Send a Pre-Adverse Action Notice................................................................................................22
Send an Adverse Action Notice.....................................................................................................22
State Law Restrictions on Credit Reports ................................................................................22
Young Workers..........................................................................................................................................22
Hazardous Jobs........................................................................................................................................23
Agricultural Jobs.....................................................................................................................................24
Nonagricultural Jobs.............................................................................................................................25
Offer Letters................................................................................................................................................25
Written Employment Contracts......................................................................................................26
Advantages................................................................................................................................................26
Disadvantages..........................................................................................................................................27
6  |  THE MANAGER’S LEGAL HANDBOOK
H Job Postings
iring can be a tough task for manag-
ers. It’s challenging enough to find
the right person for the job, someone
with the skills, attitude, personality, and other
important qualities to be a success at your
company. When you add legal concerns into
the mix, hiring can seem like a truly daunting
responsibility.
But you can’t just ignore your legal
obligations when interviewing applicants
and hiring new employees. Federal and state
employment laws reach beyond current
employees; many also protect those who
apply for jobs. For example, such laws might
prohibit discriminatory job postings, put
limits on the information you can gather in
a background check, or outlaw certain kinds
of applicant screening tests. What’s more,
the things you say and do during the hiring
process could come back to haunt you and
your company, particularly if an employee
claims that you offered a job contract or
promised job security.
The good news is that following sensible
and careful hiring practices will keep your
company out of immediate legal trouble,
will help you find the most qualified
employees, and—by screening out problem
employees from the get-go—will help prevent
management headaches and possible lawsuits
down the road.
This chapter explains the legal ins and
outs of hiring and provides practical advice
on how to find, interview, and seal the deal
with your lucky new hire.
Your legal obligations start at the very begin-
ning: advertising for an open position.
Although a job posting might seem innocu-
ous, the words you use can get your company
in trouble. In particular, it’s important to
watch out for language that could be inter-
preted as discriminating against applicants
based on a characteristic protected by federal
or state law, such as race or gender. (To learn
which characteristics are protected by federal
and state law, see Chapter 3.)
Some off-limits topics are obvious: Most
managers know that a job ad can’t state “Only
white males need apply.” But companies can
also get into trouble by posting an ad that
discriminates on a more subtle level, even if
that wasn’t their intention.
For example, let’s say you want to hire a tech-
nician for your company’s information ­systems
department. Almost all of the technician’s day
would be spent at a computer. On occasion,
however, technicians at your company have to
install new equipment, which might require
them to carry computers, monitors, printers,
and so on. Should you write a job posting
saying that applicants must be able to lift at
least 50 pounds? Well, that kind of requirement
would screen out applicants with certain
disabilities, as well as disproportionate numbers
of women. Because the lifting is only occasional
and could be accomplished by other means—
using machinery, for example—including such
a requirement in your ad could be found to
be discriminatory.

Frequently Asked Questions About Hiring
Do I have to advertise open positions?
No. Although federal, state, and local governments
are typically required to post openings, private
companies are not. Nonetheless, there are some
very good reasons to advertise:
• You can choose from a larger pool of
applicants, which increases your odds of
finding the best person for the job.
• You avoid unintentional discrimination.
For example, if you rely solely on word of
mouth when looking for applicants, and
you only know people of your own race or
ethnicity, then your hiring process might
be biased.
• You can avoid the appearance of nepotism
or favoritism. If you hire your friends, family
members, or neighbors to come work for
you, the employees who currently report
to you might think you’ll play favorites. By
posting open positions and choosing your
hires from a broad range of applicants, you
can show your employees that you hire—and
manage—based on merit alone. (For advice
on effective and legal job advertisements,
see “Job Postings,” above.)
Are there questions I can’t ask during
a job interview?
Yes. Several topics are off limits. For example, you
may not ask whether an applicant has a disability,
what country an applicant comes from—and, in
some states—whether an applicant has ever been
arrested. (To learn what questions you can and
cannot ask an applicant during an interview, see
“Interviews,” below.)
CHAPTER 1 |  HIRING  |  7
Are there things I shouldn’t say when I’m trying
to convince a really strong applicant to take a job?
Absolutely. Although you might be tempted
to sell your company during a job interview
with a hot prospect, don’t overdo it. If you
exaggerate—or flat out lie—about the position,
the company’s future, or other important facts,
and the applicant takes the job based on your
statements, he or she can sue the company if
your statements turn out to be false. Likewise,
avoid any statements that promise job security or
continued employment if the applicant takes the
position. (For more information on statements to
avoid when hiring, see “Making Promises,” below.)
Can I ask whether an applicant has a disability?
No. The Americans with Disabilities Act (ADA)
prohibits you from asking whether an applicant has
a disability. Instead, you should focus your interview
questions on the applicant’s abilities. For example,
you may ask whether and how an applicant would
perform each essential function of the job. If you
know that an applicant has a disability (because it
is obvious or the applicant has told you about it),
you may ask whether the applicant will need an
accommodation to perform the job. (For more on
avoiding disability discrimination when hiring, see
“Applicants With Disabilities,” below.)
Can I ask every applicant to take a lie detector test?
No. The Employee Polygraph Protection Act
(EPPA) prohibits lie detector tests by all but
a few types of employers, such as those that
provide certain types of security services or those
that manufacture pharmaceuticals. (For more
information on what tests you can ask applicants
to take, see “Testing Applicants,” below.)
8  |  THE MANAGER’S LEGAL HANDBOOK
Frequently Asked Questions About Hiring (continued)
Can I run background checks on applicants?
It depends on the information you plan to collect
and who collects it. In general, you can check
information that is relevant to the job for which you
are hiring. However, state and federal laws restrict
you from gathering or using certain types of records
(such as medical records or criminal records). And, if
you plan on having a third party run a background
check, you must get the applicant’s written consent
in advance. (See “Background Checks,” below, for
more information.)
Can I hire teenagers to do clerical work?
Generally, yes. Teenagers who are at least 16 years
old may work unlimited hours in any profession
that the government has not deemed hazardous.
You can also hire younger teens, although the law
restricts how many hours they may work and the
types of jobs they may do. (For more information,
see “Young Workers,” below.)
If I want to offer someone a job, do I have
to do it in writing?
There is no law that governs how you offer
someone a job. You can do it in person, over
the phone, or with a formal letter. However, you
should probably send written offer letters to
make sure potential hires understand exactly
what you are offering. Offer letters aren’t without
their pitfalls, however, so be careful what you
write. (To learn more, see “Offer Letters,” below.)
When I hire someone, should I use a written
contract?
It depends on the circumstances. In most cases,
you probably won’t want to use a contract
because it will give up your right to fire at will.
However, there might be times when a written
contract is a good idea, such as when you want
the employee to make a long-term commitment
to the company. (To learn about when you
should use an employment contract, see
“Written Employment Contracts,” below.)
What forms or paperwork do new employees
have to complete?
In addition to paperwork your company
requires—such as an acknowledgment form
for the employee handbook, a confidentiality
agreement, or an emergency contact form—
you should also ask employees to complete
the following documents:
• IRS Form W-4, Withholding Allowance
Certificate. Employees use this form to
tell you how many allowances they are
claiming for tax purposes and, therefore,
how much you should withhold from their
paychecks.
• USCIS Form I-9, Employee Eligibility
Verification. You and the employee must
each complete a portion of this form to
verify that the employee is eligible to work
in the United States.
• New Hire Reporting Form. The new hire
reporting program requires employers to
report basic identifying information on
all new employees to a state agency, to
be used to locate parents who owe child
support.
(For more on these requirements, see “Checklist:
First-Day Paperwork,” below.)

Similarly, avoid words or descriptions that
imply you have a discriminatory preference. For
example, let’s say you are looking for a sales
representative. If you use the term, “salesman”
in your ad, it implies that you are only looking
for men (and therefore that you would dis-
criminate against female applicants). The same
precaution applies to terms like “handyman”
or “waiter.”
So what can you say? If you follow two
basic rules, you should steer clear of trouble:
• Focus on the essential functions of the job.
In other words, advertise only for the
skills or characteristics that the job
absolutely requires. For example, if you
are looking for someone to proofread
magazine articles, you probably don’t
need someone with a B.A. in science
unless your magazine is a professional
scientific journal. If there is an up-to-
date job description for the position, you
can use it to focus the ad appropriately.
• Pay attention to the literal meaning of
the words you use. This is particularly
important with the suffix “-man”—as
in “salesman,” “repairman,” and so on
(try “salesperson” and “general repair
person” instead)—or gendered positions
such as “waiter” (use “server” or “wait
staff” instead). It is also important to be
cautious when using words that refer to
age. For example, targeting your job ads
to “recent college grads” would likely
discourage older workers from applying
for the position, which could lead to an
age discrimination lawsuit.
CHAPTER 1 |  HIRING  |  9
Ban-the-Box Laws Restrict
Inquiries About Criminal History
In the last several years, an increasing
number of states and cities have passed
laws prohibiting employers from asking an
applicant about criminal history early on in
the hiring process. Called “ban-the-box” laws,
these laws were originally aimed at removing
a common question on job applications that
required applicants to check a box if they had
a criminal record. Nearly ten states, and many
cities, have adopted ban-the-box laws. While
these laws vary in the particulars, employers
are generally not allowed to ask about criminal
history—on a job application or otherwise—
until the applicant comes in for an interview
or receives a conditional offer of employment.
Some of these laws also require employers to
give the applicant an opportunity to explain
any criminal history or require employers to
consider certain criteria in evaluating criminal
history. To learn if your state has such a law,
see “State Laws on Employee Arrest and
Conviction Records,” at the end of this chapter.
Interviews
The spontaneous and unpredictable nature
of the job interview makes it rife with traps,
even for managers with the best of intentions.
Well-meaning, innocent comments could be
construed by an applicant as prejudicial or
used as the basis of a discrimination lawsuit.
For example, let’s say an applicant speaks
with an accent you’ve never heard before.
10  |  THE MANAGER’S LEGAL HANDBOOK
You might be curious about where the
applicant is from. However, if you ask about
the applicant’s national origin, and the
applicant doesn’t get the job, your question
could make the applicant wonder whether
ethnicity played a role in your decision.
On the other hand, you don’t want to get
so hung up on every word you say that you
defeat the purpose of the interview: to learn
about the applicant’s skills and experience so
you can choose the best-qualified candidate
for the position.
Here are some tips that will help you stay
out of legal trouble while also getting the
information you need to make the right choice:
• Don’t ask about any characteristic that the
law prohibits you from considering in making
your decision. (To learn about these pro-
tected characteristics, see Chapter 3.) For
example, you can’t base your hiring deci-
sions on an applicant’s religious beliefs
or race, so you shouldn’t be asking about
those things in your interviews. For ideas
on how to get information while staying
within the bounds of federal law, see the
“Preemployment Inquiries” chart at the
end of this chapter.
• Respect the applicant’s privacy. Although
federal law does not require you to do
so, many state laws and rules of etiquette
do. For example, asking applicants in
California about their sexual fantasies
(yes, that actually happened in a real-life
case) violates their state-protected right
to privacy. (For more information on
privacy in the workplace, see Chapter 6.)
• If an applicant raises a delicate subject, it’s
usually best to skirt the issue. Unless the
topic is directly related to the position—
for example, the applicant reveals that
he or she has a disability and will need
an accommodation to perform the
job—politely steer the conversation in
another direction. Although it might
seem a bit awkward, you’ll be better
off in the long run if you don’t take the
applicant’s comments as an invitation to
pry into his or her relationship troubles
or political beliefs.
• Ask open-ended questions to get the
candidate talking. There’s a big difference
between a closed question (such as
“How many supervisory positions have
you held?”) and an open one (such
as “Tell me about your most recent
experience supervising others”). The more
open your questions, the more you invite
the candidate to talk. This will not only
give you the factual information you
need to make a decision, but will also
let you see how well applicants express
themselves and think on their feet.
• Ask behavioral questions, if possible. It can
be tough to find out whether applicants
possess important, yet somewhat
intangible qualifications, such as
problem-solving skills or the ability to
work well as part of a team. If you just
come out and ask, all but the most dim-
witted applicants are going to know
the correct answer. (“Are you good at
solving problems?” “You bet!”) On the

other hand, if you ask the applicant to
describe specific instances in which he or
she had to use those skills, you’re more
likely to get a helpful response. To find
out about a candidate’s problem-solving
skills, for example, you could say, “Tell
me about a problem you recently faced
in your current position and how you
handled it.”
• Focus on what the job really requires.
If you have a job description for the
position, use it to script some interview
questions that will help you find out
whether the applicant has the necessary
skills and experience. If you don’t have
a job description, create a list of the
essential tasks for that position, then
craft questions that will help you figure
out whether the appli­cant can meet
these requirements. Remember, the law
absolutely allows you to ask questions
that directly relate to the requirements of
the job you are trying to fill.
• Cover similar ground with each applicant.
You can’t ask exactly the same questions
of each applicant, nor should you.
After all, you don’t want to miss the
opportunity to ask spontaneous follow-
up questions or delve more deeply into
particular topics. On the other hand,
you should try to cover the same basic
topics and general questions with each
applicant. This will help you compare
candidates when it’s time to choose your
hire; it will also help you avoid claims of
CHAPTER 1 |  HIRING  |  11
discrimination by applicants who don’t
get the job.
Asking for Social Media
Account Passwords
Many companies look online for publicly
available information on job or promotion
applicants, including on Facebook and other
social networking sites. But the Maryland
Department of Corrections took this common
practice a step further when it asked employee
Robert Collins to hand over his Facebook
password during a job recertification interview.
The situation was publicized when
the American Civil Liberties Union filed a
lawsuit on Collins’s behalf in 2011. Soon after,
Maryland passed a law banning this practice,
and several states have followed suit.
Over two dozen states now have laws
that prohibit or place restrictions on this
practice. In most of these states, it is illegal
for an employer to make an applicant hand
over the password to his or her private social
media account or pull up the account in the
employer’s presence. (Check out the website of
the National Conference of State Legislatures,
www.ncls.org, for current information on state
laws in this area.)
Facebook has weighed in on the issue,
making it a violation of the site’s code of
conduct to “share or solicit a Facebook
password.” In response to the publicity
surrounding the Maryland case, Facebook’s
Chief Privacy Officer warned employers that
they could expose themselves to “unanticipated
legal liability” by demanding user passwords.
12  |  THE MANAGER’S LEGAL HANDBOOK
Making Promises
A common mistake managers make during
the hiring process is to exaggerate the
prospects of the business (“We’re expanding
like wildfire; those stock options will be
worth millions in no time!”) or play up the
security of the job (“As long as you do good
work, you won’t lose your job”). Lots of
companies and managers embellish when
they’re trying to sell an especially desirable
applicant on a job. No harm in that, right?
Wrong. If you tell a prospective employee
something about a job, you’d better be able
to back it up. If the employee takes the job
in part because of what you said, then that
employee may be allowed to sue if your
promises or statements later prove false.
Courts sometimes decide that a promise
or statement you make to a prospective
employee turns into a contract if the
employee accepts the job offer because of
what you said. If the position doesn’t live
up to your statements, your company has
broken the contract and might have to pay
damages to the employee.
It’s easy to avoid making inflated promises
if you follow one simple rule: Tell the truth.
After all, job applicants are trying to figure
out whether the job will fit with their career
goals, skills, and lives outside the workplace.
They deserve to know the truth so they can
make the right decision.
This strategy will not only keep you out
of legal trouble, but will also increase your
chances of finding an employee who is right
for the job and for your business. No one
wants a disgruntled employee on the payroll.
If you’ve told the applicant the truth and
he or she still wants the job, then you’ve
probably found a good fit.
Lessons From the Real World
A California company paid the price for
aggressively recruiting an employee with
promises it couldn’t keep. Rykoff-Sexton,
Inc., promised Andrew Lazar job security,
significant pay increases, an eventual executive
position, and a bright future with a company
that was financially strong. Lazar took the bait
and left a lucrative job in New York City, his
home of 40 years.
Although Lazar excelled in his new job,
the pay increases and bonuses never came.
Eventually, Rykoff fired Lazar because of a
“reorganization.”
Lazar sued and won. He argued to the
California Supreme Court that Rykoff should
have to keep the promises it used to recruit
him, and the court agreed. The court decided
that Rykoff’s broken promises amounted to
fraud because it knew the promises were
untrue when it made them.
Lazar v. Rykoff-Sexton, Inc., 12 Cal.4th 631 (1996).

Here are a few rules that will help you
avoid common promise pitfalls:
• Don’t make predictions about your company’s
financial future. Even if you honestly
believe that your company is headed for
the Fortune 500, keep your optimism to
yourself. If the applicant asks about the
company’s prospects, stick to the facts. If
you make any statements about what the
future might bring, clearly identify them
as hopes, not predictions. For example,
you might say, “Our business has
continued to grow despite the economic
downturn, and we’re hoping that trend
will continue,” but you shouldn’t say,
“We’ll be the industry leader by this time
next year.”
• Don’t estimate the future value of stock
options. Let’s face it: You simply can’t
know what your company’s stock
options will be worth in the future. It’s
fine to explain the stock option program
to applicants and to tell them that you
hope the options will be valuable, but
don’t say things like, “When these
options vest, we’ll all be millionaires!”
• Don’t say anything that might limit your right
to make personnel decisions in the future. If
you tell an applicant that your company
fires workers only for poor performance,
this will limit your ability to terminate
that person for any other reason—such
as personality conflicts or economic
downturns—if he or she accepts the job. Americans with Disabilities Act (ADA),
CHAPTER 1 |  HIRING  |  13
Similarly, if you promise pay increases
at regular intervals, the employee could
hold you to that promise, even if the
flagging economy or the employee’s
performance don’t justify a raise.
• If layoffs are likely, say so. If your company
is considering staff reductions and there
is even a remote chance that the applicant
you are interviewing might lose that new
job as a result, disclose this before the
applicant accepts the job. Otherwise, you
may find your company slapped with a
lawsuit, especially if the employee left a
secure job elsewhere to come work for
your company. Of course, this strategy
might make it difficult to find new
employees, but it really isn’t fair (or legal)
to hire people on false pretenses.
• Be accurate in describing the position.
Don’t exaggerate to land an applicant,
and don’t play bait and switch by
offering an applicant one job, then
placing him or her in another. It might
not matter much to you who does what,
but it will matter a lot to the employee.
An employee who accepts the position
based on statements that turn out to be
false might have grounds for a lawsuit.
Applicants With Disabilities
Of all the antidiscrimination laws, perhaps
none confuses managers more than the
14  |  THE MANAGER’S LEGAL HANDBOOK
especially when it comes to hiring. Managers
want to find out if the person they hire can
actually perform the job but often aren’t sure
how to explore this issue without running
afoul of the law. (For information on how
the ADA applies to employees, see Chapter 3.)
If you remember one simple rule, you’ll
be in good shape: You can ask candidates
about their abilities, but not about their
disabilities. This means that you can ask how
an applicant would perform each function
of the job, but you can’t ask whether the
applicant has any disabilities that will
prevent him or her from performing each
function of the job.
One way to ensure that you stay within the
rules is to attach a detailed job description
to the application or describe the job duties
to applicants during the job interview. Then
ask how the applicant plans to perform
the job. This approach gives applicants an
opportunity to talk about their qualifications
and strengths. It also gives them a chance
to let you know if they need reasonable
accommodations to do the job.
If you choose to ask applicants how they
would perform the job duties, you should ask
these questions of all applicants. It’s illegal to
single out those whom you suspect might have
a disability. If an applicant has a “known”
disability—a disability that the applicant
has disclosed or that is obvious (for example,
if the applicant uses a wheelchair)—and it
reasonably appears that the applicant might
not be able to perform the job’s functions, you
may ask how the applicant would perform
those functions or whether the applicant
would need an accommodation to do so.
Generally, you may not ask an applicant
questions—on an application or during a
job interview—that are likely to require the
applicant to reveal a disability. The Equal
Employment Opportunity Commission
(EEOC), the federal agency that interprets
and enforces the ADA, gives the following
examples of questions you should not ask:
• Do you have a disability that would
interfere with your ability to do the job?
• How many days were you sick last year?
• Have you ever filed for workers’
compensation? Have you ever been
injured on the job?
• Have you ever been treated for mental
health problems?
• What prescription drugs are you
currently taking?
You may, however, ask questions like these:
• Can you perform all of the functions of
this job?
• How would you perform each of the job
functions?
• What certifications and licenses do you
hold?
• Tell me about your education and work
history.
• Can you meet the attendance
requirements of this job?

If you have no reason to believe that the
applicant has a disability, you may not ask
whether the applicant will need an accom-
modation to perform the job. If, however,
you know that the applicant has a disability
—because it is obvious, for example, or
because the applicant has told you about it
—you may ask about accommodations.
Testing Applicants
Many companies like to use preemployment
tests as a way to screen out applicants who
are not suitable for a job. These tests include
skills tests, aptitude tests, psychological tests,
personality tests, honesty tests, medical tests,
and drug tests.
Although you are allowed to do some
testing of applicants, both state and federal law
impose numerous restrictions on what you can
do. Because these restrictions are often vague
and open to conflicting interpretations, you
should use only the tests that are absolutely
necessary. You should also consult with a
lawyer before administering the test to make
sure that it will pass legal muster in your state. Skills Tests
Avoiding Disability Discrimination
For all tests—including those described
below—you must take care to avoid
discriminating against applicants who are
protected by the Americans with Disabilities
Act (ADA). (For information on the ADA,
CHAPTER 1 |  HIRING  |  15
see Chapter 3.) To ensure that a test does not
unfairly screen out people with disabilities, it
must accurately measure people’s skills, not
their disabilities. For example:
• Avoid testing mental, sensory, manual,
or speaking skills unless they are job-
related. For example, even though a
typing test is a manual test that will
screen out people who have particular
impairments, it is acceptable if you
are filling a job for a typist. However,
requiring a typing test for a janitorial
position probably won’t fly.
• Accommodate people with disabilities
by giving them a test that is “disability
neutral” whenever possible. For example,
if you are giving a written test to
applicants for a sales position to test
their knowledge of sales techniques,
you can administer the test orally to
a blind applicant. This is a reasonable
accommodation because sight is not
required for the job, but it is required to
take the test.
Skills tests range from something as simple
as a typing test to something as complicated
as an architectural drafting test. Generally
speaking, these tests are legal as long as they
genuinely test a skill necessary to perform
the job, do not violate the ADA (see above),
and do not unfairly exclude anyone based on
a protected characteristic.
16  |  THE MANAGER’S LEGAL HANDBOOK
Aptitude, Psychological,
and Personality Tests
Some companies use written tests—often in
a multiple choice format—to learn about an
applicant’s general abilities, personality, and
work style. However, using these tests leaves
you vulnerable to various types of lawsuits.
For example:
• A multiple-choice aptitude test might
discriminate against minority applicants
or female applicants because it really
reflects test-taking ability rather than
actual job skills. (Studies have shown
that some aptitude tests are biased
against women and minority test takers.)
• A personality test can be even riskier.
Such a test might invade a person’s
privacy by inquiring into topics that
are personal in nature, such as sexual
preferences or religious beliefs. (Many
states specifically protect a person’s
right to privacy, even from inquiries
by employers.) In addition, these tests
can lead to discrimination lawsuits.
For example, if you decide not to hire
someone based on his or her answers
to questions dealing with religious
issues, the applicant could argue that
you illegally discriminated based on
his or her religion. (For more about
discrimination, see Chapter 3.)
• Psychological and personality tests are
treated like medical tests (see below)
when they ask for answers that would
indicate whether the applicant has
a mental disorder or impairment. If
they do, they will be governed by the
Americans with Disabilities Act (ADA)
and all of its restrictions. (For more on
hiring and the ADA, see “Applicants
With Disabilities,” above.)
If you decide to use one of these types
of tests, proceed with extreme caution.
Make sure that the test has been screened
scientifically for validity and that it genuinely
correlates to necessary job skills. Review the
test carefully for any questions that might
intrude into an applicant’s privacy. And,
depending on the complexity and purpose of
the test you use, your company might need
to hire an expert to interpret the results.
Lie Detector and Honesty Tests
The federal Employee Polygraph Protection
Act (EPPA) generally prohibits employers from
requiring applicants to take a lie detector
test or from asking applicants about the
results of previous lie detector tests. The law
contains a few narrowly defined exceptions
for certain types of employers, including
those that provide armored car, alarm, or
guard services, and those that manufacture,
distribute, or dispense pharmaceuticals.
Even though no federal law specifically out-
laws written honesty tests, these tests sometimes
violate federal and state antidiscrimination or
privacy laws. Plus, the tests can be unreliable.
Some states have adopted their own rules
about polygraph tests, some of which are
stricter than the federal law. To find out what
your state requires, see “Employee Polygraph
Examination Laws,” at the end of this chapter.

Lessons From the Real World
Rent-A-Center, Inc., a company that offers
furniture and other household goods on a
rent-to-own basis, required applicants for
certain management positions to take the
Minnesota Multiphasic Personality Inventory
test (MMPI), answering questions such as:
• I see things or animals or people around
me that others do not see.
• My soul sometimes leaves my body.
• At times I have fits of laughing and
crying that I cannot control.
• I have a habit of counting things that are
not important such as bulbs on electric
signs, and so forth.
Applicants who were required to take the
test sued, arguing (among other things) that
the test violated the ADA because it was a
medical examination designed to reveal mental
impairments. Although the trial court rejected
this argument, the federal Court of Appeals
agreed with the applicants. Rent-A-Center
stopped using the MMPI and was ordered to
destroy all test results in its possession; it also
had to pay the plaintiff class’s attorneys’ fees.
Karraker v. Rent-A-Center, 492 F.3d 896 (7th Cir. 2007);
Karraker v. Rent-A-Center, 411 F.3d 831 (7th Cir. 2005).
Medical Tests
Medical testing is tricky. To avoid violating
the Americans with Disabilities Act, you
shouldn’t ask for an applicant’s medical
history or conduct any medical exam before
you make a job offer.
CHAPTER 1 |  HIRING  |  17
However, once you decide to offer the
applicant a job, you can make the offer
conditional on the applicant’s passing a
medical exam. However, you must require
the exam for all entering employees
doing the same job. If you only require
people whom you believe or know to
have disabilities to take the exam, you
will be violating the Americans with
Disabilities Act. If the exam would screen
out disproportionately large numbers
of applicants with disabilities, you may
administer it only if it is job related and
correlates to necessary job skills.
The Genetic Information Nondiscrimina-
tion Act (GINA) prohibits employers from
asking or requiring applicants to provide
genetic information, including through
genetic tests. Even though the ADA allows
employers to require a post-offer medical
exam, as described above, that exam may not
include genetic testing, nor may it include
the collection of family medical history.
Employers must instruct their health care
providers not to collect genetic information
as part of any employment-related medical
exam. If an employer discovers that a health
care provider is nonetheless requesting this
information, it must take reasonable steps to
put a stop to it by, for example, no longer
using that provider.
Drug and Alcohol Tests
The laws on drug testing vary widely from
state to state. In general, employers have
18  |  THE MANAGER’S LEGAL HANDBOOK
much more leeway to test job applicants than
current employees. However, several states
have imposed certain procedural requirements
that employers must follow. For example, you
might be required to give notice to applicants
that the job is a drug-tested position, to test
only after making a conditional offer of
employment, or to provide applicants with a
copy of positive test results. And, a minority
of states restrict the occupations for which
you may drug test, such as safety-sensitive
positions. Consult “State Drug and Alcohol
Testing Laws,” at the end of this chapter, for
information on your state’s rules.
Background Checks
When you are making hiring decisions,
you might need a bit more information
than applicants provide. After all, some
folks—surveys estimate between 30% and
40% of applicants—give false or incomplete
information in employment applications.
And workers probably don’t want you to
know certain facts about their past that
might disqualify them from getting a job.
Generally, it’s good policy to do a little
checking before making a job offer.
However, you do not have an unfettered
right to dig into applicants’ personal affairs.
Workers have a right to privacy in certain
personal matters, a right they can enforce by
suing your company if you pry too deeply.
How can you avoid crossing this line?
Here are a few tips to keep in mind when
gathering information on an applicant:
• Make sure your inquiries are related to the
job. If you decide to do a background
check, stick to information that is
relevant to the job for which you are
considering the worker. For example,
if you are hiring a security guard who
will carry a weapon and be responsible
for large amounts of cash, you might
reasonably check for past criminal
convictions. (However, see “Criminal
records,’’ below, for some restrictions.)
• Ask for consent. You are on safest legal
ground if you ask the applicant, in
writing, to consent to a background
check. Explain clearly what you plan
to check and how you will gather
information. This gives applicants a
chance to take themselves out of the
running if there are things they don’t
want you to know. It also prevents
applicants from later claiming that you
invaded their privacy. If an applicant
refuses to consent to a reasonable request
for information, you may legally decide
not to consider that applicant for the
position.
• Be reasonable. Managers can get their
employers into legal trouble if they
engage in background check overkill.
You will not need to perform an extensive
background check on every applicant.
Even if you decide to check, you probably
won’t need to get into excessive detail
for every position. If you find yourself
questioning neighbors, ordering credit
checks, and performing exhaustive
Another random document with
no related content on Scribd:
that the enemy received the staggering blow, and the advantage
thus gained was followed up to yet greater advantage At no time
appears this hero stronger, grander, than now, when, without
authority, without the royal sanction, in one sense an outlaw, with the
people of the country against him, his own countrymen coming to
war on him, his force insignificant as compared with that of any one
of his several enemies, he yet holds them all at bay, by his iron nerve
and ever ready strategic resources, keeping them asunder, pitting
one against another, playing on the foibles of them all as easily and
serenely as a lady fingers her guitar.
Greatly imperilled were now the conqueror’s brilliant visions of
conquest and conversion, of fame and wealth. If Narvaez were to
advance on Mexico, the Aztecs could not fail to take advantage of
the opportunity, either to join the professed liberator of their emperor
and themselves, or to attack the foreigners’ quarters on their own
account. This would place him between two fires, to which famine
would prove an effective ally. If Narvaez remained on the coast, it
would be to cut off both retreat and reinforcement, leaving him to
Aztec vengeance. To abandon Mexico for a campaign against the
enemy would be to surrender the most important part of the
conquest.
To divide his forces, so as at once to retain his hold on the
capital and meet this new visitation—such a measure would render
his already small force less able to cope with an enemy not only its
equal in courage and military art, but far superior to it in number and
resources. Yet this he determined to do. The revelations of Narvaez’
messengers had shown how possible it might be, by judicious gifts
and promises, to sow discord in the enemy’s camp. The priests
Guevara and Olmedo, and others of both parties, were even then at
work, and chiefly on their efforts depended his prospects. Thus
would he seduce to his purpose the opponent’s troops, in so far at
least as to effect a compromise by which Narvaez might leave him in
comparative peace.[654] Who shall say that his good fortune may not
still favor him! And thereupon he resolved to move his camp nearer
to the enemy, so as to be ready for any emergency, and further, to
give himself a more imposing appearance by the addition of native
auxiliaries. Another reason for this advance was by his presence to
counteract the defection of Indian allies, arising from the parade of a
superior force by Narvaez, and from the stamping of Cortés as an
impostor.
He laid the project before his council, showing the danger of
awaiting the advance of Narvaez, whose ill-will had already caused
their property to be declared confiscated and their names branded
with dishonor. Deserters to Sandoval had brought news of serious
discontent in the enemy’s camp. Hundreds, they said, would be
ready to come over or to remain neutral if Cortés showed a bold
front. Indeed, the protests of Aillon against a fratricidal war had been
echoed by most of them, intent as they were on obtaining gold, not
on slaughtering countrymen. It was in any case better to advance
and secure a good position, perhaps to surprise the careless
Narvaez. With God and the king on their side, so they claimed, they
could not fail to conquer. Some objections were ventured upon, but
promptly suppressed by one of the captains, who reminded his
comrades of their glorious achievements under Cortés, and their
probable fate should Narvaez gain the ascendancy. The result was
an unanimous approval of the plan proposed; and Cortés thereupon
commissioned the captains to represent the matter to the men, and
to ascertain who were willing to follow, and who should remain in
Mexico.[655]
On acquainting Montezuma with his intention, the monarch
questioned him as to the reason of the hostility shown by the other
force. Cortés well knew that it was useless wholly to conceal the
state of affairs. He had been silent, he replied, in order not to give
him pain. He and his men had been sent by their king on this
mission, and were from the royal province of Castile, whilst the
forces on the coast were a rebellious horde from the outside
province of Biscay, and inferior to them, as Otomís, for instance,
were inferior to the nobler Aztecs. They had come with the design of
injuring the natives, and Cortés as their protector; but with the aid of
his patron saint he would have no trouble in chastising them, and in
securing their vessels for his speedy departure.[656] Alvarado, the
tonatiuh, would remain in Mexico, and him he recommended to the
monarch’s consideration, requesting that supplies be provided and
peace maintained. Any attempt at revolt would react with terrible
effect on himself and his people. The emperor promised that this
should be done, and offered not only guides, but an army to aid him.
The latter was declined, chiefly because Aztec troops could not be
relied on.[657]
It was decided that all who were not wholly in sympathy with
Cortés, should remain with the garrison left in charge of Mexico,
since self-preservation would constrain them to act in the direction of
his interest. This force numbered one hundred and forty men, and
with the loyal Alvarado for captain, Mexico was regarded as secured.
The defences of the Spanish quarters were strengthened; all the
guns and most of the fire-locks, cross-bows, and ammunition were
left with the garrison, also seven horses. Supplies being not over
abundant, owing to the drought, maize and other provisions were
brought from Tlascala to serve in case of need. The men were
promised wealth and honors if they remained faithful, and their
somewhat hot-headed commander was exhorted to prudence. “You
are few in number,” said Cortés to them on leaving, “and yet you are
strong; finally, have a care of your prisoner.”[658]
About the middle of May Cortés set out from Mexico with
seventy Spaniards, sworn to implicit obedience.[659] There were also
native carriers, a number of prominent Mexicans as hostages, and
guides who were to take them by a short southern route through
Aztec territory to the coast. Montezuma accompanied him to the
Iztapalapan causeway, and there took his leave with friendly
demonstration, while a number of chieftains continued with him for
some distance on the way to the Huitzilapan plateau. He had no
intention of encumbering himself with heavy war material, for the
little he possessed could not avail against the superior armament of
the enemy. His must be a light corps, capable of quick movements;
stratagem should supply the place of numbers. And now what hopes
and fears were theirs as they marched on toward the sea! Surely so
brave a little army was never more beset by pitfalls and snares.
On reaching Cholula they were joined by Velazquez and Rangel,
with one hundred and fifty men, who were now the mainstay of the
expedition. About a score of these, suspected of favoring too
strongly the Cuban governor, were sent back to Mexico, so that the
enterprise might not be imperilled by treason. Among the remainder
were distributed the gold collected by the expedition in the Tochtepec
and adjoining region, in order to encourage loyalty.[660]
Unable himself to visit Tlascala, Cortés sent Francisco
Rodriguez, with instructions to raise a force of her stanch warriors.
He succeeded in enlisting several thousand; but as it became
evident whom they were to meet, the natives recalled only too vividly
the terrible effect of Spanish arms and prowess, and began rapidly to
desert, so that only a few presented themselves before Cortés, and
they were dismissed with presents.[661]
During the march to the coast scouts were sent out by the main
road and through by-paths to gather information of the enemy. Not
far from Cholula Olmedo rejoined the army, with a letter from
Narvaez demanding submission. Of this no notice was taken, for
although the latter had endeavored to intimidate the envoy by
holding a review of his troops, the brave friar had sounded the
disposition of the men too truly to be alarmed. He seemed rather
disposed to underrate the strength of Narvaez, and with a sense of
the ludicrous he amused the camp with his description of the vanity
and carelessness of the leader, and the arrogant assumption of the
officers. When, therefore, at Quecholac[662] they encountered
Alonso de Mata,[663] notary of Narvaez, who had been sent with four
witnesses to advise Cortés of his commission and demands, he was
told first to produce his own credentials as royal notary, and being
unable to do so he was refused a hearing.[664] The official mission of
the messengers being thus disposed of, Cortés soothed their
wounded pride with soft words and hospitable cheer; he gave them
presents, and took care before dismissing them to feast their eyes
on the gold and jewels which he caused his men to display, and to
let them know that thousands of Tlascaltec and other troops were on
the way to join him. Their report to Narvaez was a confirmation of
Guevara’s statement, and did much to promote the growing
disaffection toward Narvaez.
The army now descended from the plateau to Ahuilizapan, and
followed the slope northward to Huatusco. This town appears to
have been situated on the head-waters of the present Rio Jamapa.
Half-way down this river, about ten leagues south of Cempoala, lay
the town of Tampaniquita,[665] which was the rendezvous. A number
of Indians who here appeared with complaints of outrages by
Narvaez were consoled with promises of speedy relief. Sandoval
had come by a long and difficult mountain route to avoid the enemy,
and had brought with him about sixty able-bodied soldiers, the old
and infirm remaining at Papalote.[666]
This addition raised the force to about two hundred and sixty
men, according to common statement, including the deserters from
Narvaez. Among the number were five horsemen, and a few archers
and musketeers.[667] They were poorly equipped, for they brought
from Mexico little else than well-worn escaupiles, or quilted cotton
armor, shields, swords, and dirks, a miserable outfit in which to meet
the well armed troops of Narvaez.[668] But the ready resource of
Cortés had found a remedy. He had noticed in the hands of the
Chinantecs a spear, twenty feet in length, which struck him at once
as a formidable weapon, either in defence or attack. It would be
particularly serviceable against cavalry. Immediately on hearing of
Narvaez’ arrival he had sent a messenger to that province with an
order for three hundred of the pikes, to be finished not with the usual
iztli head, but with double points of copper, a metal which abounded
in that region. The natives having previously tendered submission to
the Spaniards, Cortés also asked them for two thousand warriors, to
join him on pentecost day at the rendezvous. Both of these requests
were promptly granted, and before the Spaniards were on the
ground the messenger had returned with a force of Indians bearing
the weapons,[669] with points superior in finish to the models sent.
The messenger was Tobilla, a soldier from the Italian wars, and an
expert at arms, particularly with the lance. Under his instruction the
soldiers soon became expert pikemen, and gained no little praise.
Add to this courage, increased by many victories, their admirable
discipline, their influence over the natives, and their knowledge of the
country, and the little band assumes more formidable proportions.
Under the several influences surrounding him the original fierce
design of Narvaez in his dealings with Cortés had cooled somewhat.
The calm confidence and caustic wit of Olmedo tended to inspire
respect for his commander, which was not lessened by the rumor of
vast Indian armies massing under his banner. Nor were his men
apparently inclined to turn the sword against their countrymen.
Before the return of Mata he despatched a commission to Cortés
demanding the surrender of the country, but offering him liberty to
depart for any other region, accompanied by those who wished to
follow his fortunes. With this object vessels and stores would be
provided. The bearers of this proposal were his old friend Andrés de
Duero, Guevara, another clergyman named Juan de Leon, and one
or two others.[670]
Duero, it will be remembered, had greatly assisted Cortés in
fitting out his expedition from Cuba; in fact, without his intervention
Cortés would never have been appointed to the command. Láres
was dead, and it was quite natural, after this lapse of time, that
Duero should desire to look in on Mexico, and for that reason had
joined the expedition of Narvaez. Yet his sympathies were wholly
with his partner, and after a warm embrace he came at once to the
subject of his ducats. Their interview was private and protracted, and
appears to have been satisfactory, Cortés receiving on the one hand
valuable information about Narvaez’ plans and position, and Duero,
on the other, coming forth with weighted pockets, as an instalment of
the larger sum to follow. According to Bernal Diaz it was arranged
that Duero should receive valuable grants and offices if he
persuaded the alguacil mayor and other leaders so to manage affairs
that Narvaez should be captured or killed, and Cortés acknowledged
captain-general over all the troops.[671] Whatever may have been
the agreement, there is no doubt that Duero promised to promote his
friend’s schemes in the other camp.
Guevara and the other members of the commission were also
loaded with presents, and confirmed as supporters of Cortés. As for
Narvaez’ proposition, he charged them to reply that he would listen
to none but a royal mandate, and would hold the country for the king,
as was the duty of a loyal subject, and to this he and his followers
were prepared to pledge their lives. Still, he was ready to meet
Narvaez, each accompanied by ten attendants, in order that their
respective claims might peradventure be happily adjusted. It was
supposed by the captains of Cortés, who had influenced the
proposal, that the result would be a division of territory, and to this
they were willing to agree.[672]
Duero had been requested by Narvaez to persuade Velazquez
de Leon to visit their camp, in the hope that a personal meeting
might win him to their cause.[673]
Velazquez’ disregard of the former summons from the enemy
had confirmed the faith of Cortés in his loyalty, and since a visit to
the camp of Narvaez might lead to important information, he advised
him to go; at the same time intimating that his heavy ornaments
might have a happy effect on that gold-thirsty crew.[674] With a view
to temporize he was authorized to offer himself as mediator between
the two generals, and with a supply of gold for bribes he went over to
the camp of Narvaez. There he met a most cordial reception. Gently
the commander remonstrated at his adherence to a traitor who had
so deeply injured his relatives. “He is no traitor,” replied Velazquez
warmly, “there has been no treason either acted or intended.” He
would not listen to any overtures, even when coupled with the
promise of a command second only to that of Narvaez. “I have sworn
loyalty to Cortés,” he said, “and I will remain true.” Nevertheless, that
he might not appear ungracious, he promised to use his efforts
toward the recognition of Narvaez’ supremacy. A review of the troops
was held to impress him with the superiority of the forces with which
he might soon have to contend.
A courtier in manner, and with a fine presence, Velazquez
quickly won his way among the captains and staff; nor did he fail to
improve the opportunity by presenting his general’s cause in the
most attractive light. No little weight was given to his words by the
heavy gold chain which fell in several coils upon his breast.[675]
Cortés affirms that the proposal for an interview with Narvaez
had been accepted, and that he was preparing to attend it when the
warning came that advantage would be taken of the meeting to seize
or kill him.[676] If treachery was intended, it is more likely to have
originated with Cortés, who was by no means scrupulous, as we
have seen, while Narvaez appears to have borne the reputation of a
man of honor.[677] It is still more probable that Cortés invented the
warning in order to be free before his followers, and before Narvaez,
to carry out a more momentous project, which, with the increased
knowledge of affairs in the enemy’s camp, and with the growth there
of his party, had begun to unfold in his mind.
It was a grand conception; yet grander still the execution. It was
a different matter with a small force to fall upon a well appointed
army of countrymen; different from war on naked savages, to
surprise them by night, or otherwise to vanquish them. Yet this was
what Cortés now proposed to do. Nor, in adopting this bold measure,
does he lay himself open to the charge of rashness or recklessness.
His situation was desperate: he must conquer or be conquered.
Cortés was no abstract theorist: he dealt mainly in concrete facts;
not necessarily demonstrated facts, but facts reached often by
intuition alone. With facts, intuitively or practically arrived at, he kept
himself well stored. He possessed many noble qualities, but on the
whole, as we have seen, his character was not cast in an
immaculate mould. He was exceedingly religious; and while, as I
have said, he would not let religion stand in the way of his ambition,
yet he was more bigoted than any of his followers. Aside from the
chivalrous abandonment of himself to fate, and the brilliant
achievements thence arising, there was little admirable in him. He
knew nothing of lofty magnanimity, although he did many
magnanimous acts; he knew nothing of pure disinterestedness, or a
generosity of soul, although he was ofttimes exceedingly generous.
He had none of that sense of unswerving justness and sensitiveness
to wrong which characterized Grijalva. His self-possession never left
him. He was a power within himself, and he knew it. Thus it was in
Mexico now; and for years afterward when Mexico was all America,
he was Agamemnon, king of men, the greatest of Greece when
Greece was all the world.
Under the present inspiration, he sent Rodrigo Álvarez Chico
and a notary[678] to withdraw the proposal he had made Narvaez for
an interview, and to demand of him the production of a royal
commission, authorizing his presence there, which commission
would be respected; otherwise he must cease meddling with the
affairs of the country. The followers of Narvaez were to be formally
forbidden to obey his orders; and they were to appear before Cortés
within a specified time, and learn from him what the interests of the
king required of them. Failing in this, he would have them seized and
dealt with as rebels against his majesty.[679]
The cool impudence of this demand, coming from the captain of
a little band of outlaws hemmed in between hostile forces, gave rise
to no small amusement in the enemy’s camp. Narvaez chose
nevertheless to regard the matter seriously, receiving the message
as an insolent defiance. He declared he would no longer show
forbearance toward the traitor; he set a price on the head of Cortés,
announced the estate of his followers to be confiscated, and
proclaimed open war against them.[680]
Immediately after despatching his ultimatum Cortés broke camp
and followed his messengers at a quick march.[681] At Rio de
Canoas, or La Antigua, Velazquez came up with letters from Duero
and others. They had probably been written under a preconcerted
arrangement, for they were read to the leaders and discussed, the
result being a unanimous resolution to advance. So forward they
went, Cortés exclaiming, “Death to the ass or to him who drives
it!”[682]
 Crossing the swollen river with some difficulty,[683] he hurried on
to Rio Chachalacas, over a league from Cempoala, where camp was
formed quietly and without fires.[684] This sudden movement, coming
immediately after Duero’s interview with Cortés, confirms the
supposition that a plot had been concocted by them, which was to
surprise Narvaez under advantageous circumstances arranged by
confederates. There were to be no half-way measures; all must be
staked on one cast.[685]
Calling his men round him, he made one of those stirring
appeals in which he knew so well how to animate their spirit and
touch their heart. He reviewed their right to the conquest, and their
promises to hold the country for the king. “And now comes this
emissary of Señor Velazquez,” Cortés continued, “full of envy and
treacherous design, to appropriate the fruit of your hard-won
victories. This pompous Narvaez, while seizing your riches and
clothing himself in your glory, would load you with impositions and
brand you with dishonor. Will you submit to this? Will you, who have
overcome mighty hosts, who have seized empires, who even now
hold monarchs in your hands, will you place your necks in the yoke
and humbly submit to the unjust demands of this instrument of your
ancient enemy? God, who has always been with us, will still fight on
our side, if we will be true to him and true to our king. We must fight,
and it is for life; ay, and more than life—for honor and glorious
inheritance.” Cheer after cheer burst from the men, while the
captains hastened to assure Cortés that they would follow him to the
death.[686]
Although it was generally understood that coöperation was
expected within the enemy’s camp, the prudent general made no
mention of the fact, lest it might render the men less self-reliant. He
pointed out, however, that their opponents, although more numerous
than they, were unused to war, effeminate, disheartened from
hardships, and discontented with their commander. He explained the
arrangement of Narvaez’ camp, and divided the force into three
parties, under the command respectively of Sandoval, Olid, and
himself, the position of the former as alguacil mayor and
comandante on the coast, and the second as maestre de campo,
entitling them to this distinction, young as they were, particularly
since Cortés retained the direction of affairs. To the former, aided by
Jorge and Gonzalo Alvarado, Alonso de Ávila, and eighty men, was
intrusted the task of attacking Narvaez’ special quarters, with the
formally worded command to seize him, dead or alive.[687] As a
further inducement toward the accomplishment of this important end,
rewards of three thousand, two thousand, and one thousand pesos
respectively were promised to the first three soldiers who should
secure the general.[688] Olid received the important order to capture
the artillery, from which the greatest danger was to be apprehended.
With him were Andrés de Tapia, Diego Pizarro, and others. Cortés
himself was to follow and render aid where most needed, supported
by Ordaz, Grado, the brothers Chico, and others.[689] The password
was ‘Espíritu Santo,’ suggested by Olmedo with reference to
pentecost day, on which all these events took place.
While occupied with their preparations a deserter arrived, sent
by Duero, it seems, to warn Cortés that, advised of his approach by
the Indians,[690] Narvaez had taken alarm, and was forming the best
part of his troops in the field[691] between him and Cempoala. To this
he had been prompted also by the more watchful of his captains,
who had not failed to observe the growing sympathy for the rival
general. This most unpleasant change of tactics disconcerted Cortés
not a little, and for the time he could do nothing but remain in camp,
protected in front by the creek. Fortune again came to the rescue,
however, in the form of a heavy rain, which fell all Sunday. It was the
beginning of the rainy season.[692] Most of Narvaez’ men, unused to
military service, and enervated by the frivolous inactivity of the camp,
found this highly disagreeable, and began to complain at what they
termed an unnecessary precaution against an insignificant foe. The
friends of Cortés did not fail to take advantage of this feeling by
ridiculing the manœuvre, representing that no troops, much less a
handful of boasters, would think of attacking in such weather. They
would in any case be far more secure within their strong quarters,
and by leaving an advance post in the field timely warning could be
given. This appeared to be reasonable, and since Narvaez by no
means relished the exposure, he gave orders to return to quarters
before dusk, leaving, however, a body of forty horsemen on the plain
and two spies at a brook ford, about half a league off. The remainder
of the horses were kept saddled at the entrance to the camp, and the
men were instructed to sleep on their arms, prepared at any rate to
reoccupy the field in the morning. The watchword was ‘Santa María.’
Cortés was occupied in devising new measures when informed
of this movement. Pointing out to his men the effeminacy and
unsoldierly qualities of the rabble with which they had to deal, and
the carelessness and inefficiency of their commander, he ordered an
immediate advance on Cempoala, where they would now be
scarcely expected. “You know the maxim,” he said, “‘upon the enemy
at dawn;’ but better still, we will surprise them by night.[693] Let each
strive to excel his comrade in valor.” These words were received with
hearty approval, for anything was preferable to suspense in a dreary
bivouac without fire or comfort. Crossing the creek they marched
noiselessly over the plain, through the rain, drenched and hungry.
On reaching the brook, near the town, they came upon the two
scouts of the enemy, Gonzalo Carrasco and Alonso Hurtado; they
captured the former, while the latter, warned by the cry of his
comrade, hurried into camp to give the alarm. Carrasco was
compelled under threats to answer a number of questions on the
position and plans of his party, and was menaced with death if he
played false.[694]

A cross had been erected at the ford,[695] probably during the

first march to Cempoala, and here the army knelt in all humility to do
reverence. Father Olmedo then gave the men the general
absolution, and appealed to heaven to bless the efforts now to be
made in behalf of their faith and the king, closing with the soul-
stirring assurance that victory should be theirs. The men, one and
all, felt no doubt that they were about to fight not only for their own
rights, but for God and their sovereign; and if the robber could feel
encouraged in his lawless pursuit after kneeling at the shrine of St
Demas, surely these heroes of a hundred fights were stronger for
their religious faith. Therefore it was with renewed confidence that
the men buckled tighter their escaupiles, and pike in hand, their main
reliance, they resumed the march with quickened steps, leaving the
baggage and horses in the care of Marina and the carriers. The
horsemen stationed in the field were not encountered, thanks to
Duero who was one of them.

It was just past midnight, on the morning of whit-monday,[696]

when they entered Cempoala. Owing to the darkness and the
presence of troops in the field, together with the recent marches and
countermarches, the presence of the intruders was not suspected till
they had almost crossed the plaza. The storm was not wholly past,
but the moon peered forth at times between the chasing clouds,
dimly revealing the buildings occupied by the enemy. These
consisted of three conspicuous edifices, rising upon pyramidal
foundations, the ascent to which was by a wide staircase along one
of the slopes. The highest was a temple, known as Nuestra Señora
since the iconoclastic achievement of Cortés therein, and this was
occupied by the troops of Diego Velazquez. Next to it was the
building held by the captain-general, guarded by the whole battery of
guns.[697]
Hurtado had arrived nearly half an hour before and given
warning, but instead of immediately calling to arms, Narvaez lost
time with questions, which elicited only that his companion had been
seized and that he fancied he had heard Spanish voices. Some of
the captains, friendly to Cortés, ridiculed the story as a dream, and
entertained the general with speculations about the projects of the
audacious rebel.[698] While so occupied the alarm of the sentinels
was heard. Cortés was upon them.[699] Narvaez at once became the
self-possessed commander, and hastened to issue the necessary
orders. There was a rush to arms, and the confusion was increased
by the appearance of innumerable fire-flies, which the besieged
mistook for the fire-arms and spears of a large army.[700]
In order to avoid the range of the guns, Cortés had kept his men
along the sides of the approaches, and on finding himself discovered
he shouted, “Close with them! At them!” Fife and drum joined in and
echoed the cry.[701] Olid rushed on the battery, ranged along a
terrace on the ascent to the commander’s house. So sudden was
the attack that those of the artillerymen who still remained loyal had
time to discharge only one gun, which killed two men.[702] The next
instant Olid, Pizarro, and their followers had practically secured the
pieces, and were pressing the defenders, who offered little
resistance. At the same time Sandoval rushed past and hurried up
the stair-way to the summit, where Narvaez stood to receive him.
[703]A volley of arrows and bullets was fired at him, but being poorly
aimed, out of consideration for comrades below, he escaped
unharmed. Nothing daunted, Sandoval’s followers pressed onward in
a compact column, and in a moment they were on the summit
platform. “Surrender!” shouted their leader with resolute confidence,
to which Narvaez responded with a jeer, calling on his men to spare
no traitors. But the order was an empty one, for their swords and
short Spanish lances availed nothing against the line of bristling
copper points on the long pikes of the attacking party, and step by
step they were driven backward into the building. What they did with
their fire-arms or cross-bows is not stated.
Meanwhile Cortés was doing brave work below. One body
engaged the cavalry, unhorsing with the all-effective pike those who
had managed to reach the saddle, and cutting the girths. Another
body turned their attention to the reinforcements which came rushing
from the adjoining quarters to the scene of action, and taking
advantage of the confusion and the darkness, relieved only at fitful
intervals by the moon, their cool opponents readily disarmed the
greater number, so that but a small proportion made their way
through the besieging lines.[704] While thus occupied they heard a
shout from above, “Victory! Victory for Cortés! Narvaez is dead!”[705]
Cortés immediately caused the cry to be taken up by the rest of his
men, which added to the confusion of the enemy.
It appears that Sandoval, although reinforced by a portion of
Olid’s party, could not effect an entry into the building to which his
pikes had driven those who still adhered to Narvaez, a number
having passed over to his side before this. After watching the vain
skirmishing for a while, Lopez, the ship-builder, bethought himself of
setting fire to the dry palm roof of the otherwise substantial building.
The besieged now had no recourse but to come out, which they did,
headed by Narvaez. No sooner had they appeared on the platform
than Sandoval’s men charged them with the pikes, and the
commander was the first to receive a thrust, in the left eye, which
bore him down as he cried out: “Santa María, save me!” In an instant
Pedro Sanchez Farfan was upon him,[706] and he was dragged
down the steps and placed in a chapel. Awed by this mischance the
rest speedily surrendered.
 Alférez Fuentes fought valiantly till overthrown with two pike
thrusts. “Our Lady save me!” he cried, still clutching the standard.
“She shall!” responded Sandoval, averting the pikes of the excited
soldiers.[707]
The cry of victory and the rumor of Narvaez’ death had stayed
the stream of reinforcements from the adjoining houses, wherein
defence was now alone thought of. Recognizing that a charge on
them might meet with more determined opposition, Cortés resolved
to bring the enemy’s own battery to his aid.[708] By the time the guns
were in position, most of the forces of Sandoval and Olid were free
to aid Velazquez de Leon in the task of reducing the quarters in
which Salvatierra and Diego Velazquez still held out.
They were summoned to submit to the king and to Cortés, under
pain of death, but gave a defiant answer. The guns were now
brought into play, and fired first over their heads to frighten them. As
the balls came whizzing by, the blustering Salvatierra, who had
sworn to eat the ears of Cortés, declared himself sick. His fierceness
changed to abject fear, and his men asserted that they never saw a
captain behave so contemptibly. The shots, supported by promises,
soon brought about the surrender of this pyramid.
The last to hold out was Diego Velazquez, a brave fellow, well
liked by his followers; but after a few more parleys, and the loss of
three men from well directed shots, his party was also prevailed on
to descend and deliver up their arms,[709] the leaders being secured
and removed in irons to the chapel, the wounded receiving there the
attentions of a surgeon. Cortés looked in to examine their condition,
and as the whisper reached Narvaez that the hero of the day was
present, he turned and said: “Señor Cortés, you may hold high the
good fortune you have had, and the great achievement of securing
my person.” With a twinkle of malicious merriment Cortés regarded
for a moment his fallen foe, whose insufferable conceit did not desert
him even here, and said: “Señor Narvaez, many deeds have I
performed since coming to Mexico, but the least of them all has been
to capture you.”[710]

FOOTNOTES
[654] ‘Velazquez ... si yua en persona no podia escusar de respetarle, aunque por
su buena, y blãda condicion, confiaua que le traeria a qualquier buen partido; pero
temia que yendo otro qualquier General.’ Herrera, dec. ii. lib. ix. cap. xix.

[655] Gomara, Hist. Mex., 144; Herrera, dec. ii. lib. ix. cap. xxi.; Bernal Diaz, Hist.
Verdad., 90. ‘Afirman muchos, que en essa saçon estaba tan bien quisto Cortés,
que si á todos los quisiera llevar, todos se fueran trás él.’ Oviedo, iii. 509. Which is
exaggerated, as we have seen.

[656] ‘Debia ser alguna mala gente, y no vasallos de V. A.,’ is Cortés’ version of
the reply, Cartas, 119-20, while his interpreter, Aguilar, gives it more literally as
‘una gente vizcaynos e que no los enbiava el enperador.’ Testimonio, in Cortés,
Residencia, ii. 47, 184. Gomara adds that Cortés said he was going to protect
Montezuma’s subjects, and to keep the strangers on the coast till he was ready to
depart. The emperor probably dissimulated, ‘holgando que vnos Christianos a
otros se matassen.’ Hist. Mex., 145. Forgetting that the declared purposes of
Narvaez were well known in Mexico, Herrera renders the answer that this captain
was a brother of Cortés, sent with a present from their king. Both would come up
to the capital and then leave the country. The rumored enmity was due to an order
from Spain to avenge any injury suffered at the hands of the natives, dec. ii. lib. x.
cap. i. Brasseur de Bourbourg follows him.

[657] ‘Aquellos españoles le dejaba encomendados con todo aquel oro y joyas
que él me habia dado ... y le dí muchas joyas y ropas á él,’ et seq. Cortés, Cartas,
119-20. ‘Aun prometiò, que embiaria en nuestra ayuda cinco mil hombres de
guerra, e Cortes ... bien entendiò que no los auia de embiar, e le dixo, que no auia
menester.’ Bernal Diaz, Hist. Verdad., 91; Vetancvrt, Teatro Mex., pt. iii. 135.
Ixtlilxochitl assumes in one place that Cortés asked for men, and was told that
Aztecs dared not fight Spaniards, but would go as carriers. In another version the
confederate kings grant the auxiliaries. Hist. Chich., 300; Relaciones, 389, 412.
Solis assumes that Montezuma is devoted to Cortés; so does Zamacois, who sees
a proof thereof in the offer of troops. He could not communicate with Narvaez for
want of interpreters, and had he wished to aid the latter he would have attacked
the Spanish quarters. Hist. Mex., ii. 70-1. All of which shows that this author is not
profound either in investigation or argument.

[658] Bernal Diaz places the force at 83 men, with 10 cross-bows, 14 firelocks, 4
large guns, falconets, 7 horses, and all the ammunition; 150 men were left, and
150 taken, Oviedo; a little over 50 were left, Tapia; all wished to go, but 200 were
left and 250 taken, including the men of Velazquez, with 8 to 9 horses, and a force
of carriers, Gomara; 150 left, 250 taken, with a number of Indians, Ixtlilxochitl; 150
left, Probanza de Lejalde. B. V. de Tapia, who remained with Alvarado, says 130;
Ramirez, Proceso contra Alvarado, 36. Cortés’ own account distributes the total of
his force as follows: 140 left at Mexico, 150 absent under Velazquez, 70 taken by
himself, 150 at Villa Rica; but this is more than the original number given on
setting out for the plateau. The Villa Rica force may, however, have been reduced
by later drafts, for other authorities allow only about 70 men for this fortress. In the
Ramusio edition of the Cartas 140 men are given as the garrison left under
Alvarado, while 60 are taken by Cortés, Viaggi, iii. 244, but later issues place the
former figure at 500, which is evidently a misprint. However much the figures of
different writers may vary, it seems to be admitted that war and disease had made
a considerable inroad upon them.

[659] ‘Fizo capitan dellos a Alonzo Davila.’ Monjaras and Aguilar, in Cortés,
Residencia, ii. 48, 184.

[660] ‘Que seria fasta catorze mill castellanos.’ Monjaras, in Cortés, Residencia, ii.
49. ‘Cinco o seys mill.’ Tirado, in Id., 7.
[661] ‘Porq̄ le pareciò q̄ auia conseguido su intento.’ Herrera, dec. ii. lib. x. cap. i.
Perhaps in spreading the rumor that he came with Indian auxiliaries. Among the
auxiliaries were 400 men from Huexotzinco, under Pedro Gonzalez de Trujillo.
Tirado, and others, in Cortés, Residencia, i. 247 et seq.; ii. 7 et seq. It is this
expedition of Rodriguez, assisted by Diego Garcia, Alonso de Ojeda, and Juan
Marquez, as captains, that has misled Gomara, and particularly Herrera, in
supposing that the whole expedition received a grand reception at Tlascala; but,
beside the above reference, Cortés intimates clearly enough that he did not go
that way, and he certainly did take a more southerly route to the coast than on the
previous journey. Cartas, 120. Bernal Diaz also says: ‘embiò Cortes a Tlascala â
rogar ... que nos embiassen de presto quatro mil hombres.’ Hist. Verdad., 91.
Prescott falls not only into this generally adopted error, but states that 600 troops
were asked for, Mex., ii. 243, whilst the chroniclers all say from 4000 to 10,000.‘La
maior parte de ellos se bolviò, porque aquella Nacion no estaba acostumbrada à
pelear fuera de su Tierra.’ Torquemada, i. 482. A not very sound excuse, since
their troops had already gone to Mexico.

[662] About twenty leagues east of Cholula.

[663] ‘Vezino de la Puebla, que era ballestero.’ Bernal Diaz, Hist. Verdad., 90.

[664] ‘Púsole preso en su pié de amigo.’ Demanda de Ceballos, in Icazbalceta,

Col. Doc., i. 441. But this is not likely. Bernal Diaz says that Narvaez was told to
send communications to Tampaniquita. Hist. Verdad., 91; Cortés, Residencia, i.
248, ii. 185.

[665] Torquemada and Clavigero attempt to correct this spelling, but Bernal Diaz is
sustained by Orozco y Berra, in Mex., Noticias Ciudad, 244-6. Bernal Diaz also
mentions Mitalaguita, which may be Metlangutla, a few leagues farther east. Hist.
Verdad., 91. Herrera states that they passed through Cotastlan, by which he
means probably the province, and not the town, of Cuetlachtlan. dec. ii. lib. x. cap.
i.

[666] Herrera, ubi sup., leaves Ircio in command at Villa Rica, which is improbable.
Sandoval arrived at the rendezvous the day after us. Bernal Diaz, Hist. Verdad.,
92; Cortés, Residencia, ii. 3-9. Prescott makes him join long before this, on the
high plateau, but he misunderstands his authorities, and is quite at sea with
respect to the route followed by the forces.

[667] Bernal Diaz and Herrera say 266 in all; Torquemada has 266, beside
captains and five horsemen; Cortés, 250 in all; Tapia, about 250.

[668] ‘Por vn peto, ó capacete, ó casco, ó babera de hierro, dieramos aquella

noche quãto nos pidierã por ello.’ Bernal Diaz, Hist. Verdad., 98.