Thursday, September 22, 2011

Of Politicians: They accomplish nothing, but claim the success of others as their own..

"He knows nothing; and he thinks he knows everything. That points clearly to a political career."

George Bernard Shaw

Prolonged Slump Hits 20 & 30 Somethings Hardest: 10 years of Career Drag Predicted.

Full Report:  Associated Press Article, as taken from

No Fear of Justice

Wednesday, September 21, 2011

Eating Disorder Treatment [Anorexia] Must Be Covered By Insurance Co. in Parity with Coverage for Physical Injury.

For the last 15 years the federal Mental Health Parity Act (MHPA) of 1996, has required group health carriers to provide total dollar coverage no differently for mental health treatment than for physical health treatment.  The State of California enacted its own mental health parity law in 1999 requiring private health insurance plans to provide equal coverage for serious mental illnesses in adults (SMI) and “serious emotional disturbances” (SED) in children.  [Assembly Bill 88].  The public policy behind AB88 is to reduce the heavy personal and societal cost of living with untreated mental illness.

 AB88 prevents carriers from writing terms into their health plans that provide for higher copayments, deductibles, and limits on number of outpatient or inpatient days covered.  Quite simply, the law is that even if a plan has terms setting such limits on mental health coverage, the carrier must pay in parity what it pays for physical treatment coverage.       

Despite these federal and state laws being “on the books” for over a decade, the group health insurance industry has been unrelenting in denying equal benefits for eating disorders.   I frankly believe a “cost/benefit” analysis by insurance executives has led them to accept the costs of being sued on a case by case basis rather than comply with the law as responsible corporate citizens. 

The most recent battle, fought by Blue Shield of California, was lost by the carrier in the case of Harlick v. Blue Shield of California, 2011 DJDAR 13132.  The case involved the one adult anorexic, Jeanene Harlick, who suffered from anorexia for over 20 years.  Due to severe self starvation, she was at 65% of her healthy weight.  She admitted herself to an out of state eating disorder unit, Castlewood Treatment Center, in Missouri.  On admission, she had to have a feeding tube inserted. 

Jeanene did not obtain pre-authorization from Blue Shield for her out-of-state treatment.  Candlewood had no medical doctors or nurses or staff, but relied exclusively on the use of psychologists.  Jeanene’s policy did not such a facility because it did not meet the policy’s definition of a covered “skilled nursing facility.” 

There was no dispute in the trial and appeal that the definition excluded the type of facility actually used by Jeanine in Missouri.  But, the Ninth Circuit ruled, it also was not disputed that Jeanine’s care was “medically necessary.”  California’s mental health parity law lists nine examples of “mental illness” covered by the Act:  Anorexia Nervosa is one of those.  However, many other mental illnesses are also covered by the general wording of the statute. 

The Ninth Circuit essentially held that treatment by psychologists for a serious mental illness is to be covered in parity with medical treatment by physicians and nurses providing treatment for physical illness or injury.  The Ninth Circuit held specifically that Residential Treatment for Anorexia Nervosa is to be covered in parity with coverage for physical illness. 

California has 3.4 million group health policyholders.  Eating Disorders affect about 6/10% (.6) of the adult U.S. population, of which about 1/3 receive treatment.  The average age of onset is 19, but the condition is growing among teenage girls.  See  generally:

Blue Shield of California (Anthem) has indicated it will appeal to the U.S. Supreme Court.  While that is the Company’s legal right, I believe the carrier’s continuing violations of the parity law is unconscionable.  Young people will continue suffer, and some of them will die, because of the cold calculating and arrogant attitude of the carrier in fighting compliance case by case.   

Useful References:


AppellateOpinion.pdf Download this file
snapshot.pdf Download this file


Tuesday, September 20, 2011

Family Friendly Economy? Parents Struggle to Pick Up Kids from Daycare.

Today as I reviewed a potential case, the reality of conflicting needs became quite clear:  a single parent (or a married parent with the other parent geographically distant) must leave work no later than a specific time each day in order to pick up a child staying at day care. The employer insists that the employee work overtime, often informing the employee "at the last minute" of a project requiring overtime.  What if the employee refuses or resists the overtime because of the need to pick up her child, or face the prospect of a) losing her childcare services or b) her child being taken to "county child protective services" after a certain hour in accordance with the childcare provider's policies?  

Here is the tension:  We are in a society of numerous single parents as the sole providers, as well as two parent income households.   We are sadly a society of geographically dispersed extended family members, such as grandparents, aunts, or uncles, to provide family support.  Child care is underfunded, lacks high standards of training and quality, is often an underground "cottage industry" that goes unmonitored, and is difficult to find because having such low profit margins.  Finding a decent, affordable child care center is difficult, and keeping one is important.  Losing one, because of work demands, is a serious matter.  

Employers on the other hand have a legitimate need to meet the demands of business through the use of paid overtime, rather than adding additional part time or full time employees.  In a depressed economy, there are plenty of workers available to work overtime because one parent remains "at home," they either have no parental duties, or have better child care options than single or separated parents.  So, do we just let those single parents be ground under by the demands of an intransigent employer who can see no further than the immediate need to work the overtime?  

Questions like these are the classical political debate between libertarians and free market advocates, on the one hand and liberal, social engineering proponents on the other hand.  The hypocrisy of course is that for decades both political parties have been pounding the "family values" drum during political campaigns.  

The truth, I feel, is in the Aristolean ideal of the "golden mean."  That is, neither a purely libertarian nor a purely socialistic solution is sensible.  The truth is to be found in the right balance of government and free enterprise.  

There is a need to support business by encouraging "family friendly" approaches.  A business that attracts parents because it offers work scheduling compatible with the need to pick up children by a set time after work will actually act in its self-interest.  Sometimes nothing more is needed than a pro-active attempt to schedule people around their family life requirements.  A dictatorial "tops down" management style forecloses the kind of "win-win" solutions that employees can provide by including them in the decision process.  A parent, for example, may be able to work overtime two or three days a week, but not other days.  Dialogue and cooperation can result in a coordinated employee schedule that meets the demands of all days of the week.

The alternative, if the need for flexible scheduling is not being met, is to call for state legislation that prohibits an employer from requiring overtime of an employee if that overtime would result in the parent being unable to pick up his or her child from a daycare provider before that provider closes for business.  The law obviously would also need to foreclose discrimination or retaliation against an employee or applicant for employment who needed such scheduling of his or her workday.  

This kind of legislation is not currently "on the books" in California or the federal government.  I am not sure it should be.   Yet, knowing the struggles of being single parent, the "child care dilemma" is one employers should view sympathetically or potentially face new laws requiring scheduling flexibility.  

Monday, September 19, 2011

“Bushes as Latrines”: Ninth Circuit Rules Day Laborers May Not Be Kept From Gathering.

I have recently visited Redondo Beach a number of times to visit my adult daughter, who moved within a block of the beach and near the village.  The town is charming, and speaks of hope and dreams fulfilled:  a seaside life of ever rising property values.  (Except that bubble burst some time ago, and the dream is now month-to-month).

Still, the City government wanted to preserve the tranquility and ambiance of a world set apart from the stresses and strains of poverty and desperation.  Undocumented workers gathering on the street corners seeking cash under the table for back-breaking work—well, that is not something one ordinarily uses in a dream script.  So, the City Council voted to restrict such gatherings of day-laborers, borrowing from a Phoenix AZ city ordinance approved by the Circuit in 1986 (the year my daughter was born).  The difference was that Redondo Beach restricted gathering and activity “on the street” and expanded it to include sidewalks, alleys, “and other [vague] such locations.”  It was this further limitation that seemed to trigger a different result by the Ninth Circuit 24 years later. 

The Ninth Circuit, en banc, ruled 9-2, with Justices Carlos T. Bea, and Alex Kozinski, dissenting.  Justice Kozinski wrote as follows:  “Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open-air hiring halls; and bushes serve as adornment rather than latrines.” 

So there you have it:  Cities may not protect their bushes from mob attacks by urinating undocumented workers.    Justice Kozinski dares his colleagues to show him where in the Constitution it says that.  I think the argument got a bit emotional.  Statements like these indicate the “bigger picture” of civil liberties for us all in gathering in public places for sublime or trivial reasons may have gotten lost.  The City surely has a legitimate interest in protecting itself from public urination.  It likely has ordinances that already address that problem.  I doubt the Ninth Circuit would find it “unconstitutional” to arrest an undocumented worker caught in the act. 

The issue, it seems to me, is one I intuitively grasped even before attending law school 37 years ago.  “Loitering” can be a definition applied by an oppressive government to interfere with lawful associations and gatherings in public places to address matters of political importance.  I agree with the Ninth Circuit en banc decision.  Let the City draft its ordinance more clearly, with greater focus on the real problem, and with less opportunity for abuse of constitutional freedoms. 

The Case:  Comite de Jornaleros v. City of Redondo Beach, 06-55750.  (Sept. 16, 2011)

Every Vice is A Twisted Virtue: The Weaknesses of a Compulsive Achiever.


Being a high-achiever can be rewarding, but many smart, ambitious professionals are still less satisfied than they should be. This is because many of the behaviors that help you succeed can also get in your way. Watch out for these 
two-sided traits:
  • Driven to get results. High-achievers can get so caught up in tasks that they fail to provide transparency to colleagues or help others. Don't forget to collaborate or you'll feel alone.
  • Craving positive feedback. High-achievers care intensely about others' opinions and tend to obsess over criticism, even when it's included with positive feedback. Don't let one constructive piece of input overshadow everything you hear.
  • Guilt-ridden. Guilt often motivates achievers to produce, but no matter how much they accomplish they still feel like they aren't doing enough. Set realistic goals and take satisfaction in achieving them.
Harvard Business Review Article   Today's Management Tip was adapted from "Managing Yourself: The Paradox of Excellence" by Thomas J. DeLong and Sara DeLong.

Friday, September 16, 2011

My Life as a Lawyer Nerd: How I Improved My Social Intelligence

A phrase we often here these days is “social intelligence” to indicate how people read and use the social signals that produce success in relationships of all kinds.  Negotiation is one such social skill, and I submit we are engaged in it every day with friends, family, and business associates.  Some of us even use it with God (or try). 

A book I just ordered based on a recent review is by the “National Institute of Trial Attorneys” and is entitled:  “Advanced Negotiation and Mediation Theory and Practice.”  See the Amazon Summary.  Yes, I admit that even after 34 years of practice I lack a full comprehension of the many nuances of effective negotiations.  Socially, I can sometimes be clueless.  That’s fine, in my private nerd world.  It is not acceptable for my clients in the middle of an intense negotiation session.  So, I continue to read and learn.

This book covers the “social psychology” of negotiation.  It addresses how individual personality and style must be factored into how the negotiation is best to proceed.  The book explains how “small talk” isn’t small at all, but is an emotional “ice breaker” technique that opens people up to more substantive communications.  The book covers also the importance of setting and agreeing upon an agenda for the negotiations, that is, the procedures and basic “rules of negotiation” that will apply.  If everyone agrees, the process holds fewer surprises, and produces less angst over just how this might turn out. 

Thursday, September 15, 2011

Creative Issue Spotting: The Birth of An Employment Law Case.

Another attorney called me today to ask if I might be interested in a couple of referrals.  We reviewed the matters.  As if often the case, I separated the "wheat from the chaff" by applying a few heuristics of case selection:  a compelling and simple story that makes sense to non-lawyers.  

In this instance, I knew of a local published decision as well as a U.S. Supreme Court decision that hold a person who is fired because associated with another employee who has filed a discrimination case may have an independent case for retaliation.  The person fired is fired because doing so will in some way hurt the real target, the employee complaining of discrimination.  In this case, the relationship was husband and wife, and the employer, I believe, fired the husband in order to retaliate against the wife for filing two discrimination complaints.  The financial and emotional hurt to both the wife and the husband are obvious.

The caller did not see this issue, but together we applied the theory to analyze the facts, and we identified the "simple compelling story."  This process is part analysis and part creativity.  In one sense, a "case is born" from this imaginative exploration of possibilities.  Often a "case" is at first appearance just a strong feeling of grave injustice done.  That conclusion however is just a beginning. "Unfairness" is often legally tolerated in employment cases.  We employee attorneys are looking for "illegality" as well as unfairness.  In this case, freedom of association is protected as a public policy by the U.S. and State constitutions.  Likewise, the anti-discrimination statutes in California include a little known and infrequently used protection against retaliation or discrimination because an employee is thought to be associated or aligned with a "protected group."

So, today the "smell test" was passed by at least one of the referrals, and the next stage of evaluation will begin with a face-to-face interview with the prospective client.   

Monday, September 12, 2011

Record Attendance at My Professional Section of the Bar: Labor & Employment Law

I am 2011 Chair of the Orange County Bar Association Labor and Employment Law Section.  Today (9/12/2011) our Section hosted a joint session with the "Business Litigation" Section, and had about 200 attorneys, past Bar President, other Section Chairs, and last but not least, a U.S. District Court Judge, in attendance.  The subject was non-compete agreements, "non-solicitation of customers" agreements, and agreements providing for confidentiality of work processes and information.  

Bottom line, I am happy to say, is that the Courts have generally closed the door on employers' efforts to restrict employees right to pursue their employment through the "end run" of "trade secret and confidentiality" agreements.  

Wise, or only Wizened?

My professional Association, the Orange County Bar Association, has just created a new Section, named the "Masters Division."  While the term "master" could be inflated, it at least recognizes that some practitioners have managed to endure and maybe even thrive in the practice of law for over 20 years.  For many of us, that includes the stresses of litigation.  I'm frankly interested, as an amateur student of psychology, to observe how many of us are not only wizened but wise for the experience.

Here is the announcement of the first meeting of the newly formed section:     


Historic Trials Re-lived: Tate - La Bianca Murder Trial 

Thursday, Sept. 22, 2011
Registration & Social 5:30 p.m.; Dinner 7:00 p.m.; Program 7:45 p.m.
Turnip Rose, Grand Newport Plaza
Costa Mesa, CA

Don't miss the OCBA Masters Division's inaugural event! Former L.A. County Deputy District Attorney Vincent Bugliosi will deliver a keynote address as we take an in-depth look at the historic Tate - La Bianca murder trial.

Vincent Bugliosi
Former LA County Deputy District Attorney

Historic Trials Re-lived: Tate – La Bianca Murder Trial

Register online or download the registration flyer.

Creative Limits: Lawyers as Musicians of the Law

I love classical music.  It combines the best of the form of creative structure and the creatitve, often emotional content that fills the structure.  Codas, counterpoints, tempo, motifs, rhythm, harmony, balance, recurrent themes, introductions and developments, all speak to the shape of an infinite number of creative possibilities.

When we work, we are given limits and structures.  We may not have a major part in the whole production, but even with our limited part, we have a structured space of time and effort to be filled by a creative expression.  I submit that every act can have some aspect of creativity and "play."   If you mop floors, you can dance and sing with your mop across the floor, or work out algebraic formulas, or vary the patterns and timing of the mop strokes.  You might even think of a new and better design for mops and buckets.   Creativity is a continuous mind set to see beyond what is to what could be.

In the Los Angeles Lawyers Philharmonic, the entire symphony is comprised of current judges, retired judges, and lawyers.  In 2 1/2 years the LALP has given over 24 concerts, including at Disney Hall, the Dorothy Chandler Pavilion, and the Greystone Mansion.  I find it inspiring and refreshing to know my colleagues find quality creative outlets.  These musicians, I suspect, are creative and spontaneous people with the ability to change viewpoints in multiple areas of their lives, including the practice of law itself.  Creativity is not a practice that limits itself to one endeavor.  It is a personality trait that colors all activities. 

Wednesday, September 07, 2011

Update: Gay Marriage Status in California: I predict U.S. Supreme Court Will Uphold Prop 8.

Yesterday I wrote on how Gov. Jerry Brown, while State Attorney General, failed to uphold his oath to support and defend the State Constitution.  The California State Constitution was amended by popular initiative [Prop. 8] to define “marriage” exclusively to be between one man with one woman.  Brown refused to appeal a U.S. District Court Judge’s ruling that Proposition 8 was unconstitutional.  The sponsors of Proposition 8 stepped into the gap, and filed the appeal.  The gay couple winning the case in the District Court challenged the sponsors “standing” to bring the appeal, stating that only an elected State Office [i.e., the  A.G.] had standing to appeal. 

The questioning from the Bench during oral arguments yesterday (09-06-11) indicates that the justices felt much as I did concerning the integrity and purpose of the initiative process.  Even the two recent Supreme Court appointees  [Chief Justice Cantil-Sakauye and Justice Liu] of now Governor Jerry Brown noted that the spirit and purpose of the initiative process would be rendered meaningless if left to the discretion of public officials who disagreed with the outcome of the initiative process.  I believe that the questioning implied an underlying attitude by the Justices that former State Attorney General Jerry Brown let his personal brand of politics take precedence over the duties of his elected office.  Here are some sample questions:

Doesn’t that make the initiative process illusory?”  by the Chief Justice.

Doesn’t the decision not to appeal by the executive branch give state officials a “pocket veto” over the will of the people?   by Justice Carol A. Corrigan.

The attorney general and the governor get to pick the laws they want to enforce?”  by Justice Ming W. Chin. 

Without a proper and rigorous defense, the courts aren’t in a position to hear all points of view . . . Isn’t that unfair to the court?”  by Justice Joyce L. Kennard.  

The bottom line:  The Court will take Jerry Brown to the wood shed, and expose his brazen dereliction of duties.  That said, the issue will simply be fully appealed and briefed to the generally liberal Ninth Circuit, which is likely to uphold the ruling of the District Court.  The issue will ultimately be decided by the U.S. Supreme Court.  I predict that the Court will be unwilling to divest the states of their traditional role in defining the status of marriage, and will not apply of rule of “strict scrutiny” to the validity of those laws.  The vote once again, however, will be split along ideological lines, and I predict another 5-4 decision unless President Obama is accorded another appointment to the Bench. 


Tuesday, September 06, 2011

Jerry Brown Violated His Oath of Office in Failing to Appeal a U.S. District Court's overturning of Prop. 8 in CA defining "marriage."

Oral arguments are to be heard today (Sept. 6, 2011) in the matter of Perry v. Brown S189476, concerning gay marriage rights in California.

Last year a federal judge struck down California's Proposition 8 added to the state Constitution by a majority vote of the citizens.  Proposition 8 states that marriage is defined as a legal union between one man and one woman.  The Proposition was vehemently opposed by gays who argued that denying them the right to marry was a violation of their equal rights under the law.  The backers of the proposition argued that the state had compelling interests in defining marriage, and that the right had long been recognized and settled as a prerogative of the state in the interests of maintaining a stable and prospering society.  

Then Attorney General Jerry Brown (now governor) announced publically his position that the proposition was unconstitutional, and that he would take no action to bring an appeal of the District Court's ruling.  The backers of the Proposition then stepped into the breach to file the appeal as a true party in interest.  The gay parties then filed a challenge to the appeal, stating that the backers of Prop. 8 had no standing to bring the appeal, that is, they were not authorized to represent the people of California.  They argued that right resided alone in the Attorney General.  

The Ninth Circuit Court of Appeals certified the question as a matter of state law for the State Supreme Court to issue an advisory opinion.  The State Supreme Court will now decide if the backers of the proposition have "standing" when no government official will advance the appeal.  The argument for the granting of standing is that the initiative process is unique in its function of bypassing government officials in bringing a matter of enacted law to the vote of the general citizenry.  Consistent with that purpose, the process should include the right of the representatives that presented the initiative to press the appeal even beyond the vote when elected officials fail to do so.  The counterargument is that the initiative process stops with the enactment of the provision, and only the attorney general has the authority to defend the Proposition.  He alone represents "the people."  

My question is what happens when an elected official, in this case, Jerry Brown, violates his oath of office as Attorney General, and fails to "support and defend the Constitution of the State of California".  The initiative process by its nature is an act of distrust of public officials to carry out the will of the people.  Should not the initiative process be in continuous application through the appeal process in the courts as well as the ballot process?  It would be wise for both sides to reflect that each will have access to the initiative process, and each side may seek "standing" before a court if the issue turns against them.  It is time for the CA Supreme Court to do the right thing, and inform the U.S. Court of Appeal that this state recognizes the standing of the backers to speak on behalf the State Constitution when the Attorney General violates his duty to do so.  This approach, whatever the eventual outcome, will serve democracy as an important precedent.  

Friday, September 02, 2011

The Longer You're Unemployed The More Likely You'll Remain Unemployed. Another Happy Thought.

by Jacob Goldstein

- September 2, 2011

The unemployment rate didn't budge in August, according to this morning's jobs report. Net job growth was zero.

Also basically unchanged: The number of people who have been out of work and looking for a job for six months or more.

More than 6 million Americans are now among the long-term unemployed, up from about 1 million before the recession. The long-term unemployment rate is far higher than it's been at any time since before War II.

That's very bad news not just for the unemployed, but for the long-term health of the U.S. economy.

The longer people are unemployed, the less likely they are to find a new job.

This is partly due to the fact that the most employable people — those whose skills are in highest demand — get snapped up right away.

But there are also more insidious forces at work. As Ben Bernanke recently pointed out, the skills of unemployed workers erode, making it harder for them to find a new job. Employers may be wary of hiring someone who has been out of work for a long time. And after months of searching, the unemployed tend to spend less time looking for work.

"After a long period of unemployment, affected workers may become effectively unemployable," economists at the Richmond Fed wrote in a paper published this week.

Over most of the past century, this wasn't much of a problem for the U.S. The typical pattern was for lots of workers to lose jobs during recessions, but to find work after just a few months of unemployment.

That has changed dramatically in the past few years. "Never before in the postwar period have the unemployed been unemployed for so long," the Richmond Fed paper says.

One final, somewhat technical note: The extension of unemployment benefits — which typically expire after six months, but now can run for nearly two years — has probably played some role in driving up the long-term unemployment rate.

But several studies have found that this accounts for only a small part of the overall rise in long-term unemployment. (See this paper from the San Francisco Fed for more on the subject.)

For the most part, "people are simply flowing into unemployment and not finding jobs," Bart Hobijn, an economist at the San Francisco Fed, told me. "That's the overall weakness in the economy." [Copyright 2011 National Public Radio]

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Frank Pray  

Employee Rights Attorney

My Website

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949-637-3360 Cell

Lawyer Faces Up To 30 Years for Coaching Witness to Lie

A Los Angeles area (San Fernando Valley) lawyer, Alfred Nash Villalobos, had a client who was contacted by investigators concerning a suspected immigration visa fraud.  Villalobos in turn contacted the attorneny representing the target of the investigation.  Villalobos offered to coach his client to lie to investigators in order to thrwart a Grand Jury investigation.  The second attorney then contacted the FBI, who set up a sting, in which Villalobos accepted the first agreed cash payment.  He was promptly arrested. After a two week trial, a jury convicted him on August 31, 2011.  His license is suspended by the State Bar pending the sentencing and the exhaustion of any appeals.  He faces disbarment.  USA v. Villalobos, 2:09-cr-00824-GHK. 

Thursday, September 01, 2011

Trigger Happy Employers Using “Remote Kill” to Erase Employee Devices Violate Federal Law.

A trigger happy employer pulling the “remote kill” trigger without first notifying the employee of the intended kill can cause the employee to lose precious and emotionally sensitive personal data, such as pictures, voice mail, contacts of friends and family, music, financial data and even numerous stored links and passwords. 

Smartphones, iPads and other Tablets are so popular with employees that employers are feeling the need to combine the employees’ use of the devices with access to work data and programs.  On the surface, this symbiosis is a “win-win.”  The employee doesn’t carry multiple devices and the employer doesn’t front the cost of a new laptop or cellular phone.  In this manner, iPhones and iPads have been pushing into the territory traditionally held by company laptops and Blackberries. 

The problem with this arrangement is corporate security.  The employee is co-mingling his personal and business data, especially in email accounts and texts.  What if the employee is terminated or quits [or the phone is lost or stolen] and the employer is concerned about confidential or proprietary data now being resident on that employee’s smartphone?  The solution for the employer increasingly is the “remote kill.”  The employer sends a wireless command that erases everything on the smartphone—personal and business.  Background Information:  Wall Street Journal.

Employers are violating the law.  Unless the employer has authorization and consent to do a “remote kill,” entering an employee’s private and personal device to obtain or delete data is a violation of the federal “Computer Fraud and Abuse Act.”  Significant civil and criminal penalties apply.  Frankly, many companies do not have an explicit “remote kill” policy, and have taken no precautions to notify employees of the conditions they attach to use of a personal device to retrieve and store company information.