Thursday, June 30, 2011

In Your Face Myspace! Newscorp bought at $580 M in 2005 and sold for 35M 6-29-11 to an Irvine Social Media Co.

How could this happen to a nice guy like Rupert Murdock?  How about a better quality of experience on Facebook?  Ease of use and easy access to apps?  Yet, there is a lesson here for FB too.  Somewhere, in some unexpected cubicle or academic cell, an overpowering competitor is being born. 

Let's Cut the Lawyers First--Layoffs in a Rich City target the City Attorney's Office.

I work in Newport Beach, a beautiful California community of shamelessly rich people.  The dirty little secret is that many of residents are behind in their mortgage payments, and their big houses are "upside side."  There has always been a local legend that looking good in Newport Beach is the ultimate goal, even before having the goods, or being good.   That idea might just be the "sour grapes" attitude of covetous people like me.  Still, the "high roller" with nothing but a rented Lamborghini for the weekend has been seen on the streets.  

The City just announced that it will cut the City Attorney's staff in half, and farm out its legal work to private firms to save money.  The City Attorney decided to resign rather than manage the farmed out work.  Newport Beach is short on cash.  We have all heard some frightening economic news in the last 4 years, or even in the last 4 days.  Yet, to read this morning that Newport Beach is filling the pinch, well, that has a "fright factor" all its own.  One never knows what is happening behind closed coffers.  


Tuesday, June 28, 2011

630 Million Weiners With No Protection: How Far Does the Stored Communications Act Go to Stop Subpoena of Your Social Postings?

There was a time when people didn't realize how they could hang themselves with emails.  That was long ago, before corporate executives went to jail based on impulsive emails admitting their nefarious intentions.  Now corporations have standard policies against putting incriminating statements in emails.  [They word those policies more circumspectly than I do however].  

We are now in a similar cultural transition.  People are coming to understand that what your write on Facebook may not stay on Facebook.  I am seeing it in the employment law arena when employees are being fired for blasting their bosses on social media sites.  

The law has always limped along behind the technology.  Technology creates, and the law reacts.  Even the system of justice is incredibly slow through the appellate process.  The "lag time" can be years.  In 1986, Congress enacted the Stored Communications Act or "SCA."  The law prevents communication providers of "communication services" from divulging private communications to certain entities and individuals.  Crispin v. Christian Audigier Inc. (C.D. Cal. 2010) 717 F.Supp.2d 965, 971-972.   Fifteen years later courts are trying to apply a law that never envisioned the privacy issues posed by social media.  Even when the law is "out ahead," as with the SCA, it is chronically behind.

Monday, June 27, 2011

Lost in the Loop

No, not  the Beltway or the Chicago loop, and no, not even Boston, but the social media loop.  In searching for an efficient way to post one entry to reach all media, I failed to disable come existing loops between media, such as Twitter & FB.  I think I've emerged from the Gordian Knot, but if Knot, then eventually I'll get this "tied down."  Please forgive any repeated postings, and in some cases, forgive the original posting as well.  

Hotseat: Sitting in the Wrong Place Can Get You Fired.

An employee was fired because she sat next to her boss at a public School Board meeting to decide whether her boss was to be fired.  That's it.  There was no evidence she was disruptive or likely to cause trouble.  She was fired because she showed support for her boss.

The employee, Nichols, claimed her firing violated her First Amendment rights of attending a public meeting, and freedom of association.  She claimed she was caught in crossfire between the District and her former boss. Her boss happened to be General Counsel for the District [I suspect he helped her frame her 1st Amendment claim]. 

The rule is that a government employer is limited to disciplining an employee only in cases where the conduct is not actually disruptive, or likely to lead to disruption of employer business.  The District could not or did not produce that evidence.  It merely established that Nichols was friends with her boss and that they associated off-site.  Not good enough reasoned the Court. 

Nichols v. Dancer, Washoe County School District (9th Cir., 6-24-2011) 2011 DJDAR 9402.

Sunday, June 26, 2011

Lawyer as Acting Student

My third night of acting class is scheduled for Monday night.  I love the class because it allows us to play with situations and interpretations, and invites us "to go for it" with our creativity. On Monday, I'll  be doing a monologue from "The Lion in Winter," a 1967 screenplay about the Henry II's battles with his Queen and three power driven sons in 1183.  Here's a typical line spoken by Richard of his own mother, Eleanor of Aquitaine:  "You love nothing.  You are incomplete.  The human parts of you are missing.  You're as dead as you are deadly."  When I read this line to my daughter over the phone this evening, she suggested I use it to end my next relationship.  Actually, I was thinking of trying it on a particularly difficult opposing counsel to end our next phone conversation. The problem with the line is that it allows no escape.  "Just kidding," doesn't really seem to work after a line like that.  

Saturday, June 25, 2011

Seduced and Used: Social Media Info Feeding Frenzy

We and the Social Media Giants are in this strange love lock: 

we are seduced and used.  We know it, and we like it.  We keep giving away our personal information.

What are the privacy limits of what we give them?  How badly can we be used as the price we pay? 

Not to be arcane, but the answer is found in the First Amendment, and decisions that concern “commercial free speech.”  The U.S. Supreme Court just decided how badly you can be used. 

The legal issue focused on pharmacies that sold personal prescription data to marketing companies for drug manufacturers.  The data was sold for commercial purposes obviously.  That is somewhat important to the analysis.  Free speech rights tend to be more protected for political or socially significant speech. 

Bottom line:  The Supreme Court conservative majority, together with the moderate center Justice Kennedy) held that state data protection measures against the commercial use of personal information is unconstitutional.  True, less restrictive statutes might survive, but that remains to be seen. 

Implications:  Facebook, LinkedIn, Twitter, and whatever social media giant may yet arise, will continue to feed gluttonously on your personal information, and we will continue to feed them. 

Sorrell v. IMS Health, 10-779 (June, 2011)

Wal Mart Class Action Case: Boys v. Girls Soccer Game: Girls lose 5 to 4 in

Behind the scenes in the gigantic Wal Mart gender bias case was one of the “friends of the court” participants:  “Equal Rights Advocates.”  [the U.S. Supreme Court just denied class action status to 1.6 million women claiming a culture of bias limiting promotions]. 

Friday, June 24, 2011

The Whimsical Wish of an Employment Lawyer: Hire Me Proactively.

Companies and individuals have this in common:  we do not perceive a "problem" until the pain of ignoring it captures our attention.  As an employment lawyer hearing the stories of many employees and different industries, one theme is common among them:  companies have problems because they do not take proactive steps to put in place long term solutions to problems.

Stephen Covey describes "Quadrant 2" [Q2] as activities that are important long term, but not pressing with urgency.  These activities are the long term investments in improving overall resources and systems so that problems do not reoccur.  To work in Q2 requires discipline and careful scheduling.  

As an employment lawyer hearing the stories of many employees and different industries, one theme is common among them:  companies have problems because they do not take proactive steps to put in place long term solutions to problems.

Ryan O'Neal, Tatum and Farrah Fawcett--Oh Poor Me.

“Love Story” and “Paper Moon” and decades now gone.  I’m listening to Ryan O’Neal basically deny responsibility for the events of his life.  “They” failed him in various ways.  He needed this or that, and Tatum didn’t provide him with the support and encouragement he needed.  Quite clearly in this interview on CNN with Piers Morgan, this living cultural icon of the 70s is defensive and self-centered.  Living proof of the non-existent correlation between wealth, fame, and happiness.  

It is 6:15 a.m. in Jerusalem

A seminary friend of mine is probably just getting up to visit a Palestinian refugee camp to experience their world for a day.  She will also be visiting with Israelis.  Her purpose:  to understand the sources of hurt, anger, and violence, and to reflect on the strategies for peace.  A tall order.  Heads of state have failed.  Yet I sense she is on to something. 

Score One for the Cyberbrat.

Just what can a middle school student put on the internet about his principal?  No waffling here, but it "depends."  In this case mommy and daddy successfully defended their little cherub's creation of a phony MySpace profile for the Principal, using his actual picture, and stating:  his child looked like a gorilla; he enjoyed hitting on students; he enjoyed sex of any kind, and that his wife looked like a man.

Overtime for Resident Care Providers

Caretakers who reside on the care premises to care for the old, mentally and physically disabled, or seriously ill, are entitled to overtime for the time they reside on the premises.  29 U.S.C. Sec. 203(r)(2)(A).  The employer must be an "institution" that is "primarily engaged" in the care of "the sick, the aged, mentally ill or defective . . ."

Meal & Rest Break Waivers: The Subtext.

There is text and there is subtext.  We know that there are job “rules” and then there are job practices.  The rules are the official policies and form the text.  The actual practices are those “implicit” rules, often contradicting the policies. 

Thursday, June 23, 2011

Lens Crafters Sexual Harassment Case: Am I Seeing This Clearly?

She pursues him.  He resists.  She's pissed.  She false claims he sexually harassed her.  Company investigates.  He claims she harassed him.  Company does not investigate.  She later admits false claim.  Lens Crafters settles his claim for nearly $200,000.

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

"Don't Messa with my ERISA Mista:" -- Ninth Circuit IDs a New Target.

ERISA is a federal law that regulates how Long Term Disability Benefits get paid.  The Ninth Circuit just held that the Insurance Company that is to pay the benefits can be sued for not paying out as required by the benefit plan.  See 29 U.S.C. Sec. 1132(a)(1)(B) and Cyr v. Reliance (9th Cir. 6-22-11) 2011 DJDAR 9177.  Up to this time, the Circuit had held only the employer and the "Plan Administrator" could be liable.  Allowing employees to sue the Insurance Companies will result in those companies taking their duties more seriously.

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

An Underused Remedy for Harassment by Non-Employees

A creative new area of anti-harassment law is ripe for use if workers were informed.


I am Chair of the Orange County Bar Association Labor & Employment Section for 2011.  I am at the mid point of my tenure.  Three reflections:  1) I have grown as a leader; 2) I learned that the best leaders have clear goals; 3) I learned I have a lot of growing yet to do.

Wednesday, June 22, 2011

The Disconnected Judges

What do federal judges sitting by lifetime appointment know about the hard realities of racism and retaliation in the trenches of the American workplace?  I deeply respect the judiciary.  Still, I note a problem:  while we have jurors of our peers in matters of fact, we have anything but our peers deciding matters of law.

EDD Unemployment Benefits Extension Video.

We in  CA are so fortunate to have this reserve of acting talent in the trenches of the EDD.

"If the pink slip doesn't fit, get redressed!"
Click to see my complete social "pink slip" wardrobe. Social Media

How to Completed the CA EDD Continuing U.I. Claim Form

"If the pink slip doesn't fit, get redressed!"
Click to see my complete social "pink slip" wardrobe. Social Media

"What is said here, stays here"--most of the time.

The Facebook boys duked it out. Zuckerberg won.  The Twins lost (again).  Court held the Twins couldn't introduce fraudulent statements made in the mediation to prove they were tricked into signing a settlement agreement.  Why?  Because the rules of evidence create a "privilege" against disclosure to encourage negotiations free of concern about admissions. Problem for the twins:  the fraudulent statements made in mediation were barred.  Result:  Twins cry.  Zuckerberg gets richer.  Mediators everywhere rejoice.

The Facebook Inc. v. Pacific Northwest Software Inc., 2011 WL 1346951 (No. 08-16745) (9th Cir. Apr. 11, 2011).

"If the pink slip doesn't fit, get redressed!"
Click to see my complete social "pink slip" wardrobe. Social Media

Owed Overtime? Don't Be Fooled by "Salaried, Exempt" Labels.

Unlicensed Junior Accountants can recover overtime pay if they show limited work discretion as "accountants."  Work, not titles, is what "counts."  Campbell v. PWC, LLP.  (ED CA) 2011 DJDA 8772.  Point:  "Don't be fooled by "salaried exempt" labels.

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

When Law Firms Break the Law

Stats show gender bias at management level in law firms.  I have a number of cases of gender harassment by law firms.  I love these cases.  These firms know better, but don't care.

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

Dads, Use Your Equal Leave Rights to Bond with Newborn.

Dads have equal rights to bond with newborn child by using family medical leave. Baby bonding time does not require doctor certification, just proof of birth. CA Govt. C. Sec. 12945.2(c(3)(A).

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

Tuesday, June 21, 2011

No Class to this Action

Conservative View: Company wide national pattern of discrimination not "proof" of class impact. Supreme Court kills mega-class actions. Dukes v. Wal-Mart decided 5 to 4, June 20, 2011.

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

FAA discloses Pilot's HIV to World

Supreme Court will review "Privacy Act" violation. Pilot hid HIV from FAA in license application.

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