Monday, December 24, 2012

Ebenezer Scrooge Is Rebuked, and Tiny Tim Gets His Referral Fees.

In a battle over one-third of $13.5 million, let the gamesmanship begin. Two Orange County law firms were engaged in a battle to share class action attorney fees. The battle was between the referring class-action attorney and the prosecuting class-action attorneys.   The key rules of the gamesmanship were: 1) Rule of Professional Conduct 2-200 and 2) Rule of Court 3.769.

Rule 2-200 requires that an attorney  to provide full disclosure to his client  of any proposed fee sharing agreement and  that he obtain his client’s  prior written consent for the fee splitting.   Rule 3.769 requires that as part of a class action settlement, the trial court, in order to award attorneys fees, must be provided with the full retainer agreement between the attorney and the class.

In the case of a class action, the named class representives ordinarily would sign the Rule 2-200 fee splitting agreement on behalf of the class.  In this case,  matters became complicated when the referring attorney settled a separate individual whistleblower case against the same employer-defendant named in the class action.  The referring attorney as part of the settlement of the separate individual whistleblower case agreed to confidentiality of all matters learned in the individual litigation. 

Now the class-action attorney, after several years of assuring the referring attorney that the referral fee was to be paid, asserted that a fee arrangement with the referring attorney would risk creating a “conflict of interest” between the attorneys and the class clients.  That is, presumably, the defendant employer would assert that the class attorneys should be disqualified from representing the class because they were in violation of the confidentiality agreement of the referring attorney. 
The exact nature of the conflict is not spelled out in the Court of Appeal decision, but the confidentiality clause was prospective only, that is, information shared with the class action attorneys by the individual plaintiff attorney before the settlement could not be the basis for a conflict of interest.

This latter point is of some relevance because it tended to show that the class-action attorneys were using a bogus reason to lock out the referring attorneys claim for fees. The tactic used by the class-action attorneys was to  dismiss the originally filed class-action which used the names of the class representatives  provided by the referring attorney.  The class-action attorneys then refiled the class-action using the names of different class-action representatives, hoping thereby to defeat the referring attorneys lien for fees.

The class action attorneys' ploy was simply this: there can be no referral fee paid because there was no signed agreement to split fees as required by rule 2-200. Consequence: the class-action attorneys were roughly  $4 million richer. One wonders if this diligent assertion  of Rule 2-200 was motivated by a noble desire to comply with the high purposes of Rule 2-200 to protect the public from conflicts of interest, or, was simple old-fashioned greed?

 The Court of Appeal, Justices Rylaarsdam, Aronson, and newly appointed Presiding Justice Ikola unanimously held for the referring attorney.   The Justices basically recognized that the procedural tactics of the class-action attorneys had unjustly prevented the referring attorney from notifying the court of its fee sharing arrangement. The court found that the reason the contract was not signed was due simply to switching class-action representatives. The Court of Appeal noted that this kind of “bait and switch” tactic would discourage class-action referrals, and that would be harmful to the public. That is, attorneys should be encouraged to refer cases to specialists within various areas of law.   The Court stated that class-action attorneys cannot wield Rule 2-200 as a sword to obtain unjust enrichment. 

 I am personally happy with this Court of Appeal ruling.  In my opinion, the Court simply refused to allow an ethical rule to be used for unethical purposes.

For the full decision, see:  Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler 2012 DJDAR16991 [Filed Dec. 19, 2012]

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Saturday, December 01, 2012

Making Space for Creativity in the Practice of Law

My experience with the "Creativity Crash Course" at the Stanford Online has motivated me to make some changes in my law office environment: 1) converted my entire hardware and software to Mac, 2) shifted to cloud based backup, and shfited to a fully wireless network 3) have gone fully paperless, 4) use wireless dictation and Dragon transcription, 4) dumped my rectangular desk and all file cabinets for a single round desk and a stand up laptop work station, and 5) added new artwork that communicates calm and "openness." The overall idea: greater productivity through more physical and emotional space and an invitation to collaborate and "move" while working.
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Wednesday, November 28, 2012

Harvard University has created a massive data base from online testing for "Implicit Preference." Unconscious bias is our innate neurological filtering process that allows us to quickly assess "safety" from "danger" Our task in a complex modern society is to sort out useful and harmful biases. "Unconscious bias" is not a matter of being a "bad" person. Biases however can cause us to evaluate co-workers and acquaintances not only inaccurately, but also illegally. The challenge of the law is to implement a system of proof that allows a jury or judge to infer bias operated from circumstantial evidence. I think expert psychological opinion is sometimes needed to support how bias operates in managers who will vigorously declare under oath: "I am not biased."

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Sunday, October 28, 2012

Current Creativity Exercise

 I'm participating in a six-week Stanford University online creativity class involving 30,000 people from all over the world organized into creative teams. This week's assignment is to "be more attentive."  Specifically, we are to observe and record what we see at four retail outlets. From these observations will come opportunities to improve the way customers are serviced.

I am a lawyer and writer, and  maybe more importantly I'm a dad. Every one of these roles requires I pay attention and come up with creative solutions. I'm sure creativity is a major part of your world also.  Why not reframe the way you look at the world today to explore the possibility of other answers?

 The picture is my team's report from our first week. Fairly clear from the outset was that we were to create not only the way we approach a problem but the way we report the solution.


Wednesday, October 24, 2012

Prowlng for the Gaffe

I just read an article in the Los Angeles Daily Journal [“Binders Full of Platitudes” – Oct. 22, 2012, p.5] by Eric Kingsley of Kingsley and Kingsley, noting what a terrible "gaffe" Mitt Romney committed with the stated that he obtained "binders of women" to fill Cabinet positions while governor of Massachusetts. This statement allegedly demonstrated that Mr. Romney is an obstruction if not an outright opponent of equal pay for women. It's easy enough to see the statement for oneself by going to YouTube. I took the time to view the statement.

It seems to me that partisan fervor incline some people to pounce like tigers upon any imagined "gaffe". As an employee rights attorney I certainly advocate for equality in the workplace, and particularly equal pay for equal work. Still, I question why an intelligent man like Mr. Kingsley is so bent out of shape. I can't help but believe that Mr. Kingsley was in search of a gaffe--one that would give him a platform for writing an article like that I found in the Daily Journal. Mr. Kingsley ends his article with the statement: "This issue highlights the GOP's current 'war on women.'"

More interesting to me than this partisan diatribe about those bad corporations oppressing women, are the economic realities that lead to disparate pay practices. I don’t love corporations, nor do I hate them. They are simply mechanisms people use to make money. They are neutral while the people who run may or may not be ethical. But economics—now that is more scientific than Mr. Kingsley’s diatribe. Economics produces data.  The young woman posing the question to the candidates in the town hall forum noted in the question that women currently earn 78% of what men earn. Let’s start there.

I just finished reading a book by a liberal author who might take issue with Mr. Kingsley based on a review of the economic data and trends. It seems education and culture are the key drivers toward gender equality, not legislation or individual court decisions. The book is “The Great Divergence—American’s Growing Inequality Crisis and What We Can Do About It” by Timothy Noah [Bloomsbury Press, 2012].

Noah makes the following points: 

Single mothers suffer most from income disparity. (Implying that the divorce rate is a major contributor). The reality is that single mothers have less time to devote to extra hours of work and less flexibility in working, and thus earn less. That is, anyone unable to work the necessary hours to build a career or to attend school will earn less. There is a gender problem, but it has more to do with who is the primary caretaker of dependent children. [Between 1970 and 2004 the number of single parent homes in which minor children lived rose from 12% to 26%]

Our earnings gap between the “rich” and the “middle class” is not due to gender inequality in pay, because that gap is closing even as the gap between “rich” and “middle class” increases. See generally “Women in the Labor Force: A Databook, Report  (Washington: U.S. Bureau of Labor Statistics, 2009), 8.

The number of Master’s degrees awarded after 1990 has doubled, and most of those have gone to women. College educated women have seen their incomes increase in tandem with the productivity increases, while college educated men’s incomes have lagged behind productivity increases. More women than men in the U.S. earned doctorates for the first time in 2009, and after.

Part time female workers generally earn more than part time male workers. “The Gender Wage Gap: 2010,” fact sheet (Washington: Institute for Women’s Policy Research, Mar. 2011; updated Apr. 2011). [However, there is an apparent gender bias gap in that women taking first time positions right out of college earn about 16% less than males.]  Women now outnumber men in college and post-graduate education enrollments. [implying the gap will of necessity close in the labor supply-demand dynamic of a high-tech society].

In conclusion, I recognize that gender discrimination exits, against both genders. Are court decisions and verdicts the answer? The conclusion is inescapable: women are helping themselves by advancing their educations, and being more in demand than men for higher paying jobs. Not only that, but the most highly educated women will open doors for other women who work for them and with them.

Both Mr. Kingsley and I make our living representing women and other “protected categories.” Even so, neither he nor I, nor the U.S. Congress will produce the gender equality he and I dream to see happen. It appears the answer has come from an unexpected source: the greater appetite and adaptability women are demonstrating for success in the U.S. educational environment.
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Only Manly Men and Little Women Need Apply.

In Garrison Keillor's Lake Wobegon, "all the women are strong, all the men are good looking, and all the children are above average."  Not a place where a charge of gender stereotyping is likely to occur.  But what about some workplaces in our country where those in power of hiring and firing might think all the women are to be "good looking," and all the men are to be "strong?"

I represent people who are in the process of changing gender in cases of discrimination based on gender stereotypes.  These clients are some of the most courageous persons I know as they seek to navigate not just the medical transition, but also the employment dynamics that emerge as the transgender employee makes his or her new identity known.  The social impact within a workplace is challenging for everyone:  a change of name, a change of dress, a change of toilet use, a change of grooming, a change of voice, a change of emotions, a host of changes, that are often first discovered by seeing the changes rather than discussing them proactively.

Companies wanting to avoid liability, or even more responsibly, seeking to be sensitive and supporting during this sometimes awkward shift in office dynamics, do not have to re-invent the wheel of company policies.  Guidelines are in place by progressive companies that can be used as models for both the company and the individual to make the “transition.”  See for example, the Ernst Young Transition Policy.

 An EEOC administrative decision in April, 2012 entitled Macy v. Bureau of Alcohol, Tobacco, Firearms & Explosive Agency provides an excellent overview of the applicable federal law protecting persons in gender transition.  More than that, it serves to clarify the essence of sex discrimination:  the perception of a person’s sexual characteristics in a way that leads to discrimination.  The gravamen of discrimination is not the biology of sex, but the stereotyped perceptions of what sexual identity is supposed to be.  

In Macy v Holder, Mia Macy was denied a position at the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), after she informed her background investigator that she was in the process of transitioning from male to female.  She was informed shortly after that the position was no longer available due to budget cuts.  However, concern with the abrupt elimination of the position, she approached an EEO counselor to express her concerns.  Macy later learned that the position was not eliminated.  Instead, management had filled with another applicant.

Macy believed the offer of position was revoked because she disclosed her transgender identity during her background check.  She filed an EEO complaint against the ATF and alleged that she was discriminated against based on “sex, gender identity (transgender woman) and on the basis of sex stereotyping”.

The administrative EEO officers denied that Macy’s entire claims were under EEOC jurisdiction.  They tried to separate the claims: discrimination based on “sex”, which is processed by the EEOC and “sex stereotyping”, “gender transition/change of sex”, and “gender identity” which, they claimed, were not.     

The EEOC concluded that Title VII discrimination occurs when a person is treated differently because of stereotyped attitudes about how a person is to act as a male or as a female.  In reaching this decision, the EEOC relied primarily on the U.S. Supreme Court decision in Price Waterhouse v. Hopkins (1989) 490 U.S. 228, 239.  The Supreme Court held that Price Waterhouse managers acted in violation of Title VII when they denied promotion to a female accounting partner because she did apply the cosmetics or behavioral style they thought were “feminine.”   The EEOC, following Price Waterhouse, decided that the term “sex” describes not only “the biological differences between a men and women – and gender” but also the perceptions that a decision maker may have about how a person is to express his or her gender identity.

The decision is an excellent source of legal information for persons wanting to act within the law, and for those who have been wronged by those indifferent to Title VII’s protections. 

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Wednesday, September 19, 2012

Playing the Odds: Duran Duran

What are the odds the Supreme Court will overturn the Court of Appeal in any randomly selected case coming before it?  The Justices may just be more able to provide that probability analysis after its review of Duran v. U.S. National Bank Association 203 Cal.App.4th 212.  This case, now pending before the Supreme Court, will decide the way proof is admitted to prove class members properly belong in the class. 
In Duran, the issue was the scope of proof needed to establish an employer’s liability to a class for non-payment of overtime.   The Court devised its own method of getting to an “efficient” trial method to admit evidence applicable to all 260 employees:  it randomly selected 21 individuals out of the total population of 260.  Based on this random sample, Court ruled the entire population of employees was misclassified as salaried exempt.    
The trial court refused to allow evidence obtained by the defense from 70 employees that they were not properly in the class overtime eligible employees.  At least these 70, argued the defense, should have been excluded from the “presumed” class of all 260 employees.  
Our conservative Supreme Court may track the thinking of the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 (2011) that found serious due process concerns with statistical methods that overlooked significant individual differences among a large part of the population of all “class” members.  But, our Court, applying our overtime laws, and following class action law for California employees, will be free to fashion their own class action procedures. 
The strange part of the trial court’s decision in the Duran case was it’s finding of a 95% certainty that each member of the class worked 11.86 overtime hours per week, subject to a relative margin of error of 43%.  The logic of this statement is bizarre:  “I am  95% certain that my conclusion is true about one-half the time.”    I predict the CA Supreme Court will not let this kind of statistical analysis result in liability for the all class members, especially where the defense sought to present 70 declarations from purported class members showing they were not properly in the class. 
Here is Wikiepedia’s short version of the major decision points in crafting a survey sample to produce a reliable statistical analysis:
§  Defining the population of concern
§  Specifying a sampling frame, a set of items or events possible to measure
§  Specifying a sampling method for selecting items or events from the frame
§  Determining the sample size
§  Implementing the sampling plan
§  Sampling and data collecting
In conclusion, I’m 95% certain that I have about a 50% chance of picking the outcome of the Duran appeal. 

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Monday, September 17, 2012

The Censor: He Has a Face, and He is Us.

Face to Face:  Social Media and the Masks We Share
For those intrepid few who dare to express themselves as indiscreetly as the English language will allow, there is AB 1844, soon to be officially Labor Code Section 980 et seq.  The California legislature has come to the protection of persons too dense, too indifferent, too rich, too independent or too eccentric to give a damn what they post on social media.   Of course, it also has provided protection for even the cautious citizen who has no personality to hide.  No one, not even someone whose greatest contribution to public debate is how to cook vegetables, should be required to give up his username and password to a meddling employer.

In the early days of social media, I think there was an illusion that a person could be “real” in that environment.  The illusion is over.  If you want to be real, transparent, and open, well, it turns out the old fashioned friends who actually meet over dinner or shared activities may be the answer after all.

Did we once hope that social media would provide that open intellectual space where viewpoints had room to breathe?  If so, we soon were jolted from our dream by investigators who actively rooted out contrarian or offensive viewpoints to deny us employment or decline our membership applications.
But I sense the communal censor has grown stronger over the years.  That golden age of naïve Facebook users produced some colorful and interesting narcissists.   It still does.  But most people have learned at this point that “image control” and “job protection” or “career management” involve either putting nothing on social media, or only the most bland and boring of information that will assure you that coveted status of “safe,” “normal,” and “employable.”  The social mask we wear now must expand to cover a face the size of Facebook.    Maybe LinkedIn was always the final resting place of the “social” self. 

In the work environment, “punished” most often means fired.  “Freedom of speech” does not exist in non-public work environments.   Employers with “open door” and “open communication” policies routinely punish employees criticizing a manager or company practice.    In healthy and innovative work environments, wild, jarring and “indelicately” expressed ideas may actually be encouraged.  Alas, in many other places the free expression of an idea will likely cost your job.  But what if the “speech” occurs outside the workplace, after work hours, and states strong negative employee opinions about the employer?  In a phrase:  what are an employee’s privacy rights?

A lot has been written on this topic of “social media privacy.”  I will not rewrite it.  Instead, I will simply reference the essential new developments created by some NLRB rulings and AB 1844.  The National Labor Relations Board in May 2012 issued Memorandum OM 12-59 that traces the NLRB rulings, and provides a “model” social media policy.  The concern of the NLRB appears to be primarily that social media restrictions can be overbroad in limiting “concerted activity” among workers to address grievances at work.   I have posted the complete “Office of the General Counsel” memorandum for your reading pleasure.  It includes a very useful model policy that General Counsel states is NLRA compliant.

Labor Code Section 980(a)-(e) will prohibit an employer from requiring the employee to access the employee’s social media in the employer’s presence, or to provide the employer with the employee’s username or password to a social media site.  Section 980(e) is an anti-retaliation provision to protect employees who resist illegal employer demands that violate Section 980.  

The remedies for a Section 980 violation appear to be a general civil cause of action for violation of the statute, and quite likely a common law right to proceed with a “wrongful termination in violation of public policy.”  Section 2 of the new statute states that the Labor Commissioner has no duty to investigate or determine if a violation has occurred, leading me to conclude that there is no “exhaustion of administrative remedies” requirement of the employee, who may proceed by direct civil action for the full measure of tort damages. 

Here is the full text of the NLRB General Counsel's Opinion Memorandum:  Memorandum OM 12-59 Office of the General Counsel .

Here is the full text of AB-1844, soon to be CA Labor Code Sec. 980:  California Legislative Information: AB-1844 Social Media Privacy

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Monday, September 03, 2012

The Applicant: A Poem by Slyvia Plath

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Wednesday, August 15, 2012

Abolish the Employment "At-Will" Rule?

Monday, August 13, 2012


In Employment Law cases, a disgruntled employee, anticipating the need to prove some aspect of the case, will secretly record a conversation with an employer.  The employee then sees an attorney, discloses that the recording has been made, and proudly announces that it is proof of the misconduct by the employer. The Plaintiff’s attorney only groans.

Witness the battle of the Penal Code sections. In one corner, Penal Code § 632 prohibits the recording of a confidential communication without the consent of the parties. In the other corner, Penal Code § 632 (c) permits the use of a recording where the communication is made in a public gathering or in other circumstances where confidentiality could not reasonably be expected. 

May a secretly recorded conversation ever be used in a court as evidence? The answer is “sometimes.” If the statement is used for impeachment purposes, exposing that the other party is committing perjury, or something resembling perjury, courts have permitted the criminally procured statement to be admitted. The idea is that the policy against perjury outweighs the policy against secret recordings.

Of course a sticky issue arises where discovery asks for all recordings in the possession or custody of the employee [or employer]. The employer, if it acts quickly, can obtain the identity and fact of the recording, and therefore alert its witnesses to avoid any lying on the witness stand. Further, the employer can use the secret recording as basis to assert an “affirmative defense” cutting off damages [“after-acquired evidence rule”] from the date it discovers that the secret recording was made.  Therefore, the Plaintiff’s attorney should quickly take the deposition of the defense witnesses in the hope that their inconsistencies can be exposed by the secret recording before it is necessary to identify the recording.

In any event, counsel should never participate in a criminal activity of encouraging or condoning the use of a secret recording in the workplace.

See generally Fria v. Superior Court (1988) 203 Cal. App. 3rd 1480 and People v. Crow (1994) 28 Cal. App. 4th 440.  

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Over the years, Orange County juries have developed a reputation for being tightfisted with money. That reputation is undeserved. It simply means that our juries require sufficient evidence to support a large verdict. There been a number of the very substantial verdicts coming out of Orange County.  A recent one is $38.6 million awarded to a man who suffered serious brain injury when falling off a Newport Beach hotel balcony.

No one witnessed the accident. The man was intoxicated at the time he fell off the balcony. The balcony rail was 8 inches lower than that required by California safety regulations. The plaintiff’s attorney represented to the jury immediately that his client was drunk, but that he was attempting to return to his room. He was not breaking the law at the time. The defendant apparently thought that the man's intoxication would result in most of the blame being placed on the plaintiff. The defendant focused on the bad behaviors of the plaintiff. That strategy apparently backfired.

The case was heard in Orange County Superior Court (Santa Ana) before Judge Charles Margines, and is entitled Von Norman v. Newport Channel Inn, 30–2010–00423312.  Verdict date:  7-26-12.

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A proposed law would change the time to complete a deposition from unlimited duration to 7 hours. Currently the law requires the party objecting to the length of the deposition to suspend the deposition and to seek a protective order.

The new law would allow the parties to stipulate to a longer time of deposition if the nature of the case warranted. The idea is to stop abusive and wasteful interrogations. Interestingly, employment cases are excluded from the proposed legislation as a class of cases. See Assembly Bill 1875 seeking to amend CCP § 2025.010.

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Monday, July 23, 2012

$8.5 million Awarded in LA Superior for "Failure to Accommodate" a Disability

$8.5 million has been awarded an Employee who worked at an oil refinery. In 2005, the Employee hurt her knee while working as a Shift Supervisor. Thereafter, the Employer assigned her to a desk job position because of her knee problems.

When another Company acquired the Refinery, the Company changed the Employee's duties, and she was required to go on a medical leave of 22 months. The Employer ultimately terminated her for failure to appear for work in her new job capacity.

The Employee claimed that she should have been allowed to continue in her desk job. The Employer claimed that she had been given adequate opportunity to recover, and that she could not perform the essential functions of the job. Employer also claimed that she was unqualified for the other jobs that she sought within the company.

Some observations:

1) The verdict came out of the Central District for Los Angeles County Superior Court. This venue is known to produce high verdicts.

2) Big does not necessarily mean better or more effective. The defense law firm in the case was Fulbright and Jaworski.

3) The previous Owner/Employer was able to "accommodate" the Employee for a period of time in her desk job probably lead the jury to believe that the new Employer could do the same.

4) The new Employer's changing of the Employee's job duties seems to be a self-serving excuse to find a way to eliminate the Employee's position, that is, to eliminate the previous Employer's "accommodation."

Source: "Daily Journal Verdicts and Settlements" Friday, July 20, 2012, page 5, Michelle Daniel v. Tesoro Refining and Marketing Company, Case BC383531. Verdict: June 21, 2012.

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Nearly all states follow the "American Rule" that unless the parties agree, or a statute provides for fees, each side is to bear its own fees in litigation without regard to victory. Some States, and a large number of nations follow the "English Rule" of the losing party paying the fees of the winner. As you consider your vote, here are some "pros" and "cons" of changing the current "American Rule."

Case for keeping the Rule:
  1. The "little guy" with few finances faces financial ruin if he loses. Not so with the wealthy or corporations.
  2. The incentive to select meritorious cases is already in place because the contingency fee system places much of the burden of losing (and going unpaid) on the contingency fee lawyer, who therefore selects meritorious cases as a matter of self-preservation.
  3. Socially beneficial verdicts result from the gamble that a long shot case may pay-off big, and the verdict send a message to other offenders to change their ways.
  4. The fear of losing will be greater for persons with fewer assets (i.e., usually individuals taking on wealthy corporations), resulting in settlements that are driven not by justice or principle, but higher financial costs.    
Case for dumping the Rule:
  1. A party paying hourly fees to an attorney may have to pay much more in fees than the amount to eventually settle the case or pay the verdict.
  2. The prospect of paying not only your attorney, but also the other attorney has a sobering affect for settlement, and sharpens the cost-benefit analysis, thus producing more settlements earlier in the process.
  3. The original public policy behind the 'American Rule' of encouraging easy access to the courts no longer applies in an age of diminishing court budgets and congested calendars.
  4. People who are angry and want vengeance through litigation may have a moment of religion when they calculate the increased costs. Thus, smaller cases initially driven by negative non-economic factors may now drop out of the system.

Please take a moment and let me know how you come down on this issue.   I'll report the responses in our next edition.    

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Tuesday, July 03, 2012


The California Supreme Court has provided a clarification to the question: can a party obtain the statements taken from witnesses in a case where those statements are procured by the opposing counsel? Stated technically, the question is whether the statements are protected from production under the attorney work product privilege?

The case reviewed by the Supreme Court was one involving a drowning. There were 4 witnesses to the drowning, and the defendant, the State of California, at the direction of its attorney, obtained recorded statements of all witnesses. The attorney for the parents of the deceased child made a motion to obtain those recorded statements. The trial court denied the request, and the Court of Appeal reversed. The Supreme Court in turn reversed the Court of Appeal. The Supreme Court remanded the matter to the trial court to make a determination which parts of the statements were “absolutely privileged” pursuant to Code of Civil Procedure section 2018.030.

It is at this point, in my opinion, that the “clarification” is not so clear. If you use the phrase “absolutely privileged” you muddy the waters by asking further: “Which parts of the statements are “absolutely privileged?” The “problem” arises from the language of Section 2018.030 itself. The “absolute privilege” applies only to a “writing that reflects an attorney’s impressions, conclusions, opinions, our legal research or theories.” The age-old problem is the choice of questions: A trained attorney does not ask random questions. The questions are usually intended to elicit information that goes to specific issues in the case, or specific tactical decisions regarding proof or defenses. Yet, all of those “thoughts” can only be implied from the subtext of the statements.

The Supreme Court ventured to give an example of when an attorney's “thought processes” would not be part of the statement taking procedure. It gave the example of a car accident in which the attorney sent out an investigator, with no direction or instruction, and the investigator asked very few questions, simply allowing witnesses to say what they saw or heard.

Every attorney should read this decision for a comprehensive background on the development and refinement of the attorney work product privilege. The decision generally tends to favor the application of the privilege. I would think that usually any supporting declaration of counsel opposing a motion to compel production will include the procuring attorneys statement that the statement was taken under his direction, and was crafted in accordance with his planning of his case or his defense. In any event, there will be rare situations in which the information cannot be procured by any other reasonable method. In those cases, the court still has discretion to require production of the statements unless the party seeking the statements has failed to act with diligence to obtain information independently.

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“Doctor, Doctor, Give Me the News. I’ve Got A Sad Case of Overtime Blues.” – Christopher v. SmithKline Beecham Corp (June 18 2012) 2012 DJDAR 8040

Outside sales persons are generally exempt from the overtime laws. The question becomes what is a true “outside salesperson”. For one class of workers, pharmaceutical sales reps, the U.S. Supreme Court has provided the answer. At least as far as the Fair Labor Standards Act (FLSA), outside sales reps in the pharmaceutical industry are exempt from overtime. Interesting to me is that the Court based its holding on the most “reasonable” interpretation of the Department of Labor's regulations. In doing so, it disregarded what the Department of Labor itself said was its actual interpretation. The implication is that “changing interpretations” that shift with the political winds are not entitled to deference by the Supreme Court. The DOL argued that because a pharmaceutical rep cannot by law make a direct sale to a physician, he or she is not a true “salesperson”. The Supreme Court took more practical approach saying that the “sale” was a process that was considerably more broad and flexible than an actual signed purchase agreement.

There may be a host of outside representatives who are part of the “sales process” but who do not close the sale with a signed document. This U.S. Supreme Court decision may limit the opportunity of persons not involved in the actual sale of the object or service to obtain overtime pay. For example, what about the highly technical person who provide sales support for the salesperson in the field during a PowerPoint presentation to a customer? Or, what about the salesperson himself or herself who is part of the sales team, but not the specific person who “closes the deal?” In the pharmaceutical industry, the sales rep usually obtains a “nonbinding commitment” from the medical provider. The Supreme Court considered this kind of commitment close enough to a “sale” to bring the employee within the “outside sales” exemption.

The Supreme Court decision will provide guidance in the interpretation by California courts of California overtime law. However, California is permitted to establish more liberal overtime pay regulations. Therefore, the decision is not precedent binding on California courts concerning California wage law.

"If the pink slip doesn't fit, get redressed!"
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Friday, June 29, 2012



"If the pink slip doesn't fit, get redressed!"
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Tuesday, June 05, 2012

A Solo Employment Lawyer Does Some Heavy Macro-Economic Lifting.

What does the European financial crisis have to do with employment law?  That is somewhat like asking what does unemployment have to do with employment law.  The issues remain the same, but the volume and context will change. 

Here’s a novice's view of economics involving only three dominoes:  1) the European Central Bank does not intervene in the next 3 to 6 months to aggressively free up money in the European markets so Spain, Portugal, Ireland, Italy, Greece, and France can manage their debt; 2) the European Union collapses; and 3) the world moves into a 5 year economic depression.  An extreme and far-fetched scenario?  Irrelevant to your personal bread and butter issues?  “No” to both questions. 

Last week, even as he floated bonds on the open market, the Treasury Minister of Spain said Spain was shut out of the private money markets by high interest rates—in effect, the premium attached to the high risk Spain would default on its debt.  Spain is Europe’s fourth largest economy.  Spain and Greece have lousy histories overall of repaying their “sovereign debt,” that is, government owned debt that it sells to foreign investors to be repaid in U.S. currency. 

This “going to market” approach won’t work for countries like Greece, Italy and Spain, where investors see that the electorate, fat on social programs, rebel against new austerity programs.  Logically, foreign investors see the risk is too high.

We are now at an economic cross-roads.  In the window of about 3 to 6 months, the European Central Bank, together with the International Monetary Fund and the European Commission, will take the necessary aggressive interventionist steps to increase the influx of euros into the monetary system and to guarantee deposits in member banks, or the European Union will not just fail, it will disintegrate.  I know, this sounds like “the sky is falling!” but in the ripple effect of the economy, ask how many of your personal acquaintances have remained long term unemployed and how many have been “upside down” for how long, and still living in their homes even as the banks carry the inventory of defaulted mortgages?

The European Debt Crisis has been a “continuous crisis” for nearly three years.  The current phase is just that—a worsening of the continuing situation.  There have been 5 new governments elected in Europe in 18 months.  Portugal’s will be the sixth this month.  Each new government is elected make the electorate “feel better,” that is, relieve them of the hardships of economic austerity measures. 

So there’s the set-up to a bad joke:  Socialist governments are being elected in a time when strong capitalistic measures are needed.  Add to the mix that after three years of squeamish intervention, time is about to run out. If the European Union does not manage the crisis now, its reason for being will cease.  It was to be a unified, central economy.  If it cannot perform that function for its member states, the members will leave the Union, or be ejected.  Multiply “Spain” by 12 to 18, to see the impact just one year. 

Pulling the economic levers requires a strong and committed central banking authority given the freedom to act quickly without a continuous meeting of European leaders.  That mechanism is in place through the Central European Bank, that should act now to provide quick liquidity to the system, while setting austerity measures that are no so severe as to cause political uprisings.  There will be plenty of personal economic pain to spread over the next several generations. 

Last month’s U.S. economic news was dismal, with indicators we are going the wrong direction in the so-called “recovery.”  The U.S. Treasury and Fed are again saying more intervention is needed.  At the same time, we are about to be hit with major tax increases at the end of this year.

 All this spells increasing unemployment, more layoffs, and more risk to the “marginal” that they will be selected for layoff because of their age, gender, religion, medical history, disability, race or national origin.  Layoffs are legitimate economic responses to hard economic times, but they are also covers for the practice of “cleaning house” of persons in “protected categories.”   I can live without the extra business.  Let’ s pray the E.U. acts decisively for the good of all in the next few months. 

"If the pink slip doesn't fit, get redressed!"
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Monday, June 04, 2012

Is this a "Winn"-Win or a "Cash" Out?

As the population ages, there's a growing industry of caretakers who will be working in the homes of the elderly. These persons will often spend nearly all of the 24-hour day in the home of the client. The question arises: are these caretakers entitled to overtime in excess of 8 hours per working day?

The California Court of Appeal in the case of Cash v. Winn 2012 DJDAR 6267 (Decided May 14, 2012), held that caretakers are exempt from the overtime laws even when they provide some services which appeared to be “medical services”. The plaintiff in the Cash case was not a registered nurse. This point is important because registered nurses as a class are entitled to overtime. On the other hand, IWC wage order no. 15–2001, codified as CCR Title 8, Sec. 11150, exempts from overtime those workers who perform work as “personal attendants.” Thus the issue was framed: if a “personal attendant” provides medical services, is the person no longer a “personal attendant” within the meaning of the IWC Wage Order?

The trial court gave a jury instruction that a “personal attendant” is no longer a “personal attendant” within the IWC order if the employee does ANY work that “requires the regular administration of healthcare services such as the taking of temperatures or pulse or respiratory rate ... regardless of the amount of time such duties take ...”

The testimony by the “personal attendant” was that she took her client’s “vital signs”, tested her for blood sugar levels, and tested her oxygen intake. Even so, the evidence was that these “medical” activities were only a few minutes each day generally, and that the vast majority of the “personal attendant’s” time was spent performing classical caretaker duties such as dressing, assisting with walking, transporting, cleaning, feeding, and so forth.

Finding that performing some medical like functions did not remove the overtime exemption for a “personal attendant”, the court noted that the purpose behind the IWC order was to make home healthcare cost affordable to the elderly and their families. Checking that a client take her medications, adjusting her oxygen levels, or administering blood sugar level tests, do not “per se” invalidate the exemption.

This legislative intent produces an unusual situation: a licensed professional nurse performing medical functions at a client’s home will be permitted to earn overtime. One cannot help but feel that the nursing lobby was successful on this point. On the other hand, an untrained person performing menial tasks is exempted from overtime. This outcome reminds me of the adage that legislation is like a sausage: you don't want to know what goes into it.

"If the pink slip doesn't fit, get redressed!"
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