Monday, August 29, 2005

Blogged and Frogged:

I wish to be the first to present a new term to the lexicon of blogging: "frogged". Frogged is the equivalent of being fired because of online activities. Specifically, it includes a "frogging" for "blogging". The term has support from incidents like those of employee Mark Jen at Google. The balance of this post is taken from News at CNet:

On Jan. 28, 2005, I was terminated from Google," Jen wrote on his blog, Ninetyninezeros. "Either directly or indirectly, my blog was the reason. This came as a great shock to me because two days ago we had looked at my blog and removed all inappropriate content...If I was told to shut down this blog, I would have."

Jen's departure came just 11 days after he joined Google as part of a wave of new hires and began recording his impressions of his new employer, including criticisms, in his blog.

Jen is just the latest employee to lose his job after a clash with management over public Web postings. Other examples include a Delta Air Lines flight attendant who was fired after posting photos of herself in uniform on her blog; a Microsoft contractor who took some pictures of Apple G5 computers being unloaded onto the software company's campus and posted them to his blog; and a Friendster employee who was let go over her Troutgirl blog.

The employee blog issue is doubly sensitive for Google, which became a prominent booster of blogging through its acquisition of Web logging pioneer Pyra Labs in February 2003. The company also has made a point of putting ethics before profits in its business operations, suggesting it holds itself to a higher standard of care for customers and employees.

Despite expressing shock over the dismissal, Jen wrote that he could "see where Google is coming from."

But Jen said that he disagreed with Google's decision, arguing that it is out of step with a trend that will likely grow only more powerful over time.

"I think blogging is the next big thing on the Internet...Corporations should embrace this technology just like the ones before it," he wrote. "Companies that are confident in their offerings should let employees spread the word. In today's age of information overload, blogging is quickly emerging as the fastest and most cost-effective method of marketing."

Google declined to comment, other than to reiterate its earlier statement that Jen is no longer a Google employee.

Blog at your own risk, legal expert says
Christopher Cobey, senior counsel at Littler Mendelson in San Jose, Calif., said that incidents involving blogging aren't really novel. Rather, he said, they simply extend legal concepts and issues that have been on the table since computers and the Internet first entered the workplace.

"This is an outgrowth of the continuing evolution of technology, from Internet access and use of computers at work, to similar problems we've seen with Web sites and e-mail," he said. "What it really comes down to is how people are using them, what they're using them for and how it's affecting their job."

Previous Next Employers have considerable leeway to discipline employees over any public expression touching on the company's business or reputation, Cobey said. Workers in states governed by at-will employment laws, including California, are most at risk. But even workers covered by collective-bargaining agreements could run afoul of an employer's right to protect the company's public image, if they criticize the company or disclose confidential information.

Anonymity offers little protection if a blogger's identity is uncovered in a state with at-will employment, Cobey said. Nor are bloggers protected simply by conducting their activities from home on their own time, rather than at work during office hours, he said.

"Employers in at-will states have very wide latitude" to fire workers, he said. "Is it always fair or nice? No. Is it lawful? Yes."

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Denial of IVF Treatments Not Disability Discrimination

Employers buy health insurance policies for their employees every day. One employer, the Hayward Unified School District, was sued by one of its employees because it offered a policy that excluded a treatment from coverage. The treatment was for infertility. The employee’s wife sought I.V.F.(in vitro fertilization) treatments through the policy, and a number of these kinds of treatments were covered and paid for. One especially expensive treatment was however excluded. This treatment was used by the employee’s wife, and she conceived and delivered. Her husband then sued for disability discrimination.

• What: The Court ruled for the Employer
• Why: The policy didn’t discriminate:
• The policy excluded all persons equally under the plan
• The exclusion was “treatment” based, not “disability” based.

The confusion: The exclusion had a greater affect on persons with a disability
The clarification: All health policies have this incidental affect.
The finding: An exclusion of a treatment in a policy universally applied is not discriminatory.
The Case: Knight v. Hayward Unified School District (August 2005) (1st App. Dist.)

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Friday, August 26, 2005

The coke must be from my shampoo

Who: Eight African American Boston cops

The claim: The Boston PD's current testing of hair strands to detect drug use violates the plaintiffs' civil rights and constitutes racial discrimination because the hair texture and hair care products used by black people tend to produce false positive results of cocaine in the system. One of the plaintiffs took another independent test which had negative results, which the PD rejected.

Says Psychemedics Corp. (interpretor of the test) Vice President and General Counsel William Thistle: "People do not spontaneously create cocaine in their urine, blood or hair," He added that the assays have been verified by tens of thousands of test results that show no bias based on race.

None of the plaintiffs signed the BPD's rehabilitation agreement and were thereupon discharged. The plaintiffs chose not to sign claiming that the agreement required admission of illegal drug use, drug treatment, placement in an administrative position and submission to follow-up random drug testing for three years after the positive results.

What the plaintiffs are asking for: 1) Reinstatement with back pay 2) front pay 3) all benefits and seniority ranking 4) compensatory and punitive damages 5) a declaration that the BPD's drug-testing policies violate the Massachusetts and U.S. constitutions and a permanent injunction barring the use of the hair test and any other procedures that are racially biased.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Thursday, August 25, 2005


Let the blogsophere know your dispair, your passion, or the probing of your mind. Use the microphone (pardon me, the comment button) below.

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Monday, August 22, 2005

Some tips on employee blogging

Almost everyone has or knows someone that has a blog these days. With the increasing number of blogs and the discrepancy in expectation of privacy of an employee’s blog between the employee and the employer, more and more employees are being terminated based on the content in their weblogs. So if you are about to put suggestive photographs on your blog or are considering blogging about work issues, you might want to know your rights:

~ Examine your employment agreement, union contract, employee handbook, etc which may address electronic privacy and computer use issues.

~ Restrict access to your blog and/or post anonymously! If you restrict access to your blog and your employer attempts to access it, they will probably be in violation of the law. You may want to think twice about blogging using your work computer or network (even after hours) because doing so will provide your employer with a much stronger claim to legally read your blog even if you restrict access to it.

~ Government employees are favored by their right to the First Amendment freedom of speech and are thus allowed more blogging rights especially if the content is of public concern and does not disrupt the workplace.

~ Some states prevent employers from interfering with legal activity outside the workplace (blogging has not been specifically included, but may provide a good argument).

~ Your employer typically cannot fire you for blogging about workplace issues that relate to terms and conditions of employment (wages, hours, etc) or unionization. Be sure to make a formal written complaint before you blog about the issue to help you prove that your employer is retaliating against you. Of course, there are exceptions to the retaliation rule: 1) You cannot blog about false or defamatory statements, statements that disclose an employer's trade secrets, and similarly unlawful statements 2) Independent contractors, supervisors, public employees (in some states), and other categories of employees are not included.

Check out the following links if you would like more information on blogging:

Blogger's FAQ
How to Blog Safely

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Friday, August 19, 2005

The Workplace Religious Freedom Act

Currently, employers must "reasonably accommodate" an employee’s request for religious accommodation, unless doing so would cause “undue hardship” on the company. Even a minimal cost or difficulty can be considered "undue hardship." Therefore, many employers make little effort to accommodate religious workers.

The proposed Workplace Religious Freedom Act would raise the “undue hardship” standard and require employers to accommodate employees’ religious requests unless doing so would involve "significant difficulty or expense." The Act has been backed by Right and Left political groups and has been said to prevent employees from being forced "to choose between dedication to the principles of their faith and losing their job because their employers refuse to accommodate certain needs."

Sounds great, but what about those employees who aren’t religious or who are attacked by religious groups? Would these employees be at a great disadvantage? For example, take into consideration the recent firing of a born-again Christian man named Matt Barber by Allstate after Barber wrote an essay against homosexuals, apparently using his work computer to write the essay. Unfortunately for Barber, he did not quote any Biblical scriptures in his essay, thus probably weakening his religious argument. However, even if he had done so, under the current law Allstate may rightfully claim that Barber’s minimal use of his work computer and time at work was an undue hardship on the company. Under the WRFA, Barber could probably be allowed to regularly write anti-homosexual articles during work as long as it did not incur "significant difficulty or expense” on the company. Barber could also opt under the Act to not work with a gay or lesbian employee because of his religious beliefs.

So would the WRFA unjustly favor religious employees? Would the Act be unfair to atheists or agnostics who would be denied opportunities that only religious employees may take advantage of, such as being able to use their work time for religious purposes or having their position reassigned due to their religious beliefs?

"If the pink slip doesn't fit,
get redressed!"
Click to see my wardrobe of remedies.

Thursday, August 18, 2005

Dancing to the Little Guy Blues.

Have you ever lost your keys, misplaced your glasses, forgotten your billfold or purse, or left home without the grocery list? These errors I’m convinced are built into our human DNA.

Well, what if you’re a big Corporation? Have you ever misplaced that smoking gun memo that will cost you millions if it falls into the hands of the Plaintiff’s attorney? Have you ever accidentally cleaned up your electronic storage system so that numerous documents that would hurt your defense of a case unfortunately are lost forever? Or have you ever accidentally turned over a secret document that reflects your conversations with your attorneys during which they and you bemoan that you’ve been caught red handed breaking civil and criminal statutes? These errors I’m convinced are built into our corporate DNA.

Now, before your eyes glaze over, I want to quickly inform you that an effort of good intentions is underway and nearly completed, to create rules in the federal courts that address this corporate DNA problem. The rules have to do with one side (usually the little guy) getting numerous, voluminous, gargantuan amounts of electronically stored documents from the other guy (usually the “big guy”). Why should you care? You don’t practice law (or maybe you do, but don’t care anyway). Well, in an age where the dirt is stored electronically, using an archaic system of digging based on 20th Century discovery rules may not dig up much at all, and that may mean a lot to you. If you’re driving a vehicle, or taking a medication, or incurring a bank charge, or buying a baby crib, or virtually anything, you may find you (and your consumer rights lawyer) cannot make the case for a whole class of people without getting detailed, voluminous records related to the product or service in question.

The bottom line: the proposed federal E-Discovery Rules define the limits of how much searching, retrieving, and storing a corporation has to do to satisfy a “discovery” request. Basically, the Rules are heavily influenced by a Defense lobby that would allow Corporations to “take back” a privileged document accidentally included in a turn over of a large amount of electronic data. The rules also state the search effort is limited to electronic data that is “reasonably accessible” and then provide a loose definition of that phrase. And, of most popularity with the “big guy” is that there is a “safe harbor” from sanctions if data is “accidentally” destroyed. Some “big guys” are more accident prone than others, I suspect.

OK, I know you're on the edge of your seat with this titillating story-line. Maybe the story is really a bit philosophical. Technology has created new dance steps in the business of litigation, but the “big feet” keep “stepping on the toes” of the “little guy”. I know I sound a bit cynical, but maybe I’ve just got the “little guy” blues. The Golden Rule of the law, some cynics contend, is that the one with the gold rules.

Wednesday, August 17, 2005

"No can do, Mamdouh!"

If your name is Lakshminarayan Subrahmaniam but your boss insists over your repeated objections on calling you “Luke”, tell him in the name of El-Hakem that you no longer have to put up with it!

The case of El-Hakem v. BJY Inc. et al., Nos. 03-35514, 03-35544 and 03-35063, 2005 WL 1692470 (9th Cir. July 21, 2005) involved a CEO who continuously refused to call an Arab employee by his given name, Mamdouh El-Hakem. Instead, the CEO chose to lovingly call him by the more Westernized name “Manny”. The CEO, Gregg Young, claimed that he called El-Hakem "Manny" to better his chances of advancement and to make him "more acceptable" to the company’s clientele. Even though El-Hakem objected numerous times, Young left him only with the alternative of calling El-Hakem “Hank”. The 9th circuit ordered $30,000 in damages to be paid both by the CEO and by the company, holding that the company was liable for race discrimination.

The Court held that because "names are often a proxy for race and ethnicity," Young’s repeated intentional failure to address El-Hakem by his given name created a hostile environment that would have been offensive to a reasonable Arab. The Court found that the frequency and severity of the Young’s conduct, which were consistent and lasted for almost a year, was enough to support the verdict in favor of the plaintiff. Because Young was acting in the course and scope of his employment whenever he called El-Hakem "Manny", the Court held that the company could be held vicariously liable for Young's actions.

"If the pink slip doesn't fit,
get redressed!"
Link to see my wardrobe of remedies.

Should Domestic Partners be Handicapped?

The nation is at a cultural and ethical crossroads (again).  Multiple states are struggling with the question of “same sex marriage”.  Courts have shown a readiness to uphold these marriages as rights of equal protection of the laws under various state constitutions.  The idea is that marriage partners should not be denied the equal protection of the laws on the basis of gender.  

This conclusion has a hollow ring to it, I believe, because a society can legitimately define “marriage” as a unique relation having a gender based purpose:  the procreation and nurturing of children by the influence of male and female personalities.  While it may be politically incorrect, I think kids need a dad and a mom because each brings a type of nurturing and guidance that is gender influenced.  Both parents are needed to raise healthy, well-adjusted kids.  (Of course, anyone can cite numerous failed examples, but the idea is not to encourage the exception, but to advance the general principle for the best overall outcome).  

An adage of consequence is that “the law teaches”.  That is, people conclude that a behavior is acceptable because the law says it is.  The truth of course is that the law may permit an act that is ethically wrong.  Therefore, bad laws teach bad lessons, and encourage, at least indirectly, bad behavior.  Everyone suffers.  

Our California Supreme Court recently has acted as an ethical and philosophical arbiter on the question of marriage rights and obligations. Yes, the decision is of course a legal one, but one having obvious and profound impact on how persons will be “taught by the law” to view the morality of active homosexuality.   The Court was required to decide the enforceability of California’s Domestic Partner Act of 2003, which prohibits businesses from treating “registered domestic partners” (in this case Lesbians) differently than married couples.  

Basically, the case was brought by a Lesbian golf club member against the Golf Club because the Club denied her “domestic partner” free unlimited rounds of golf it granted by contract to the spouses of heterosexual married members.  The case was based on gender and “marital status” discrimination.  

The trial court had granted summary judgment for the Golf Club.  The Court of Appeal held that the particular form of marital status discrimination was legal, but ruled that there was a question of fact of whether the policy was enforced even-handedly (for example, were heterosexual “live-ins” given the privileges of heterosexual marriage partners?).  The Supreme Court hit the long ball.  It interpreted the 1959 Unruh Civil Rights Act (prohibiting discrimination by businesses on the basis of gender) together with the new 2003 Domestic Partners Rights Act.  Read together, the Court held, the Clubs practice was “marital status” discrimination.  Here’s the Court’s holding:  for purposes of the Unruh Civil Rights Act, a “domestic partner” is the equivalent of a “spouse”.    

The Case:  Koebke v. Bernardo Heights Country Club, 2005 DJDAR 9214 (Cal. Aug. 1, 2005).  

So, where do you “weigh in” on the question of “domestic partnerships”?  Did the 2003 “Domestic Partner Rights Act” snub the will of the electorate  who years earlier defined marriage to be exclusively between “one man and one woman”.  (Referendum of 1970s)?  Has the Court taught the “wrong lesson” or the “right lesson” by this decision?  Has this decision made it more likely the Court will uphold as constitutional the eventual enactment by our state legislature of a law that grants the title of “marriage” to same sex couples?  {The 2003 Act virtually grants all the legal privileges and benefits of marriage to homosexual domestic partners granted to “married” people}.

Tuesday, August 16, 2005

Denial is not a River in Egypt

Today, I spare my readership. Rather than pick the bones of a reported legal autopsy, I prefer to work with some fresh material: my observations of the walking talking clients I've assisted over the last 12 years of employment law.

We humans are not too original in our approach to problems. Often our "approach" is the problem. Only Jesus (the Christ) seems to have been truly "outside the box" in viewing life through the original possibilities of perfection. As for you and me, well, here are some "in the box" observations:

Denial is not a River in Egypt. Everyone who comes to me denies most of his own failings, and assumes more than a fair share of the failings of others.

Others rarely see our work in the same high regard that we do.

Yes, it is true, power corrupts, and you can measure the man or woman by how far up the scale of corruption he or she has gone in relation to his or her promotions. Arrogance acquires a sort of official legitimacy as one is promoted. Managers may acquire a "we" mentality that collides with "them". The logic is this: we define and enforce the rules, even if we change the rules or twist them for ego-driven "I'm always right" purposes. Quite simply, play by our rules, however we use or twist them, or be "eliminated".

A person's dysfunctions don't stop at the entrance to the workplace. Most of our stories and problems are simply chapters in an ongoing saga we bring to our employment. Victims continue to feel victimized. Bullies may change tactics at work, but not characters. Conversely, good people produce good results at work, and healthy personalities form good relationships at work. While this is not surprising, what is less obvious is that the continued survival and success of a destructive or abusive personality at work is a sure sign he has finally found a home. I have also found that good people eventually leave bad companies. They too eventually find a "home".

My clients of course are all good people who left bad homes. And I? I am a wonderful, completely OK person, with no problems who deserves these perfect clients.

"If the pink slip doesn't fit,
get redressed!"
Link to see my wardrobe of remedies.

Monday, August 15, 2005

I Got the Redneck Customer Blues

Think that you have to deal with customers at work that continuously attack you based on your religion or race? Even if it’s just to keep your job? Well, think again. Thanks to the recent case of Galdamez v. Potter (No. 03-35682), Ninth Circuit Court of Appeals, July 15, 2005, the Court expanded an employer’s liability to include harassment and discrimination of an employee by an employer’s own customers.

This was a case of Honduran v. Rednecks.

PLAINTIFF: Arlene Galdamez, a Honduran native who spoke English with an accent. She claims that the town of Willamina, Oregon, where she had been promoted and relocated to, was out to get her because of her national origin, race, and accent.
DEFENDANT: The US Postal Service. They claim that they had no liability for redneck racism towards Galdamez. Besides, Galdamez was a rude monster.

Galdamez complained to USPS that she endured offensive verbal comments from customers, references in local newspapers to her accent, and direct threats to her safety. According to Galdamez, one customer warned her that Willamina was a “redneck town” and that “[e]veryone” would get together and “come kill her” if she continued her job.

USPS did not investigate Galdamez’s claims but did investigate complaints by its employees that Galdamez was rude and lacking good customer service, and eventually placed Galdamez on administrative leave and issued her a formal warning letter. Galdamez promptly filed a lawsuit against USPS in federal court alleging race, color, and national origin discrimination in violation of Title VII.

The Ninth Circuit went against the Rednecks and held that an employer may be liable for third party (customers, vendors, etc.) harassment “where it ratifies or condones the conduct by failing to investigate and remedy it after learning of it.”

"If the pink slip doesn't fit,
get redressed!"
Link to see my wardrobe of remedies.


An institution in Pasadena California, the Huntington Memorial Hospital, founded in 1892, recently discovered that it had to bring its overtime practices into the 21st Century.

The Case: Huntington Memorial Hosptial v. Irene Mutuc (Aug. 2, 2005).

The Facts: The Hospital paid a "short shift" differential. Specifically, it paid nurses who worked 8 hour shifts more per hour than nurses working 12 hour shifts. Nurses generally preferred 12 hour shifts because it gave them more free time during the week. The Hospital argued it paid the 8 hour nurses more because those shifts were more difficult to fill. The 12 hour shift nurses who sued the Hospital argued they were getting paid less per hour because the Hospital wanted to evade paying overtime based on a higher base rate per hour.

The Court: Don't monkey around with the overtime laws. There are laws and regulations regarding how to calculate the hourly rate, and basically, those laws require the rate to be set without manipulation or trickery to avoid overtime costs. So, a short shift differential looks fishy. After all, the real payroll costs are for the 12 hour workers, so the Hospital can appear to be generous to 8 hour shift workers with a higher hourly rate, but in fact save big money over time with a lower hourly rate for the 12 hour shift workers.

Bottom Line: Simple and uniform payroll rates can save you from a class action for overtime violations. Shift differentials are OK, for example, for night shifts, if the night shift overtime is based on the night shift hourly rate. But "short shift" differentials present a problem because they produce situations where the "hourly rate" drops for workers working longer hours--and that looks like an effort to evade overtime pay.

Sunday, August 14, 2005

It's Not So Easy Sleeping Your Way to the Top

Things are shaking at the CA Supreme Court in 2005 concerning workplace rights. Miller v. Dept. of Corrections concerned a Warden who handed out favors to those of his staff who slept with him, but ignored or deprived those who did not when it came time for promotion or assignments. The warden apparently unlocked the gates to 3 such staff members more or less concurrently. Somehow, the warden kept all three of these women happy both in bed and out, because they were not his problem. His problem was multiple suits by other women who claimed the warden discriminated against them because they were not sleeping with him. Their claims were based on demonstrating their superior performance and experience (outside of bed). Bottom Line: The CA Supreme Court expanded the idea of gender discrimination and harassment to include situations where the favored gender is the same as the person claiming discrimination. Before this decision, the right was limited to persons of opposite gender.

Saturday, August 13, 2005

Are you "hot" enough?

Are you Hot? Well, maybe not “Hot” enough! The California Supreme Court doesn’t have the hots for the babes. In fact, the Court was decidedly cool to an employer whose supervisor directed a subordinate to fire an older female worker who wasn’t the supervisor’s definition of “hot”. The case: Yanowitz v. L”Oreal USA, Inc. (Aug. 11, 2005). The facts: The boss was head of a cosmetics department in a retail outlet. He told his female subordinate to fire her employee because the employee, an older woman, didn’t look “hot” like the young lady he pointed out as an alternative. When the subordinate ignored the order, she was harassed by her boss and eventually quit because of his hostility towards her. She sued the employer claiming she was harassed and punished for resisting an illegal order. She claimed men who were of all appearances were not required to be “hot” as a condition of employment, and that she was being ordered to practice gender discrimination.

Well, there you are: Gender discrimination based on men having the right to be ugly, or at least not “hot”, while women are held to a standard of being “good lookers”. The Court said a lot in this case (don’t they always), but basically: The harassed employee could make her case by showing the Boss had reason to know she didn’t carry out his order because she resisted discrimination, even if she didn’t tell him so directly. Additionally, she didn’t have to be outright fired to make her case. She could prove her work environment was “materially” worse (what does that mean?) because of his mean behavior toward her.

So, if you think you’re less than “hot”, or that your boss is picking on someone who is “less than hot” (this is not a legal term of art!), give the employee rights lawyer a call!

Employee Rights Attorney Frank Pray
5160 Campus Drive
Newport Beach, CA 92660

(v) 949.251.1006
(f) 949.251.1005