Friday, March 30, 2012

Hangman's Arbitration

Wednesday, March 28, 2012

Age Bias: Twitter Di Twitter Dumb

I just read a short opinion by a management attorney stating that recruitment of new employees by job announcements on Twitter could be a violation of the federal Age Discrimination in Employment Act of 1967. 

 As a plaintiff's attorney, I consider myself more creative than many of my colleagues on the defense side, whose sole task is to take a key brick out of the elaborate edifice I strive to construct as a monument to justice.  But this Twitter Bias Theory most certainly takes the ether cake.  The premise of this madcap article is that folks over 40 don't rely on Twitter in the same ratios as those under 40.  Now while that may be true, the disparity is not so great as to justify the idea that recruiting on Twitter negatively impacts the opportunity of older workers to be hired.  

Is it that we who are over 40 have not heard of Twitter, or quake in our calcified minds at the thought of posting a message under 140 characters?  It is ageist to judge that persons over 40 are less able or less willing to participate in trends on the internet.  For example, the biggest growth in the use of social media is among older  users.  social media user age demographic  So while I like the writer's creativity, creative age bias is still unappealing.  

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

Blue Cross's Attempt to Exclude Coverage for Residential Care of Anorexia is Illegal

Harlick v. Blue Shield of California
(2011) 656 F.3d 832 (WL 3796177) (9th Cir.)

The Ninth Circuit has held that the Mental Health Parity Act contained in Health & Safety Code section 1374.72 requires equal treatment for mental illness and physical illness, and that accordingly, a Blue Shield exclusion for anorexia nervosa would not be enforced, and that plaintiff, despite other restrictive language, would be entitled for treatment of anorexia in a residential care facility.

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

Freedom of Religion is Violated by Mandated Contraception Insurance Coverage

The following is a reprint of an OpEd piece I submitted to the Los Angeles Daily Journal.  The Article was published in the "Perspective" Section on 3/20/2012:  

Constitutional rights can collide, and when they do, of course courts must reconcile contending interests.  But in the case of contraceptive coverage, the collision is not between constitutional “equals.”  The tension is between the political agenda of the Obama administration to cater to the liberal female vote, and the First Amendment right of freedom of religion.

The U.S. Dept of Health & Human Services has mandated that a religious organization provide its employees with coverage for contraception even when that religious organization finds contraception fundamentally inconsistent with its religious tenets.  Even if a carrier provides the contraceptive coverage without cost to the religious employer, that does not address the essential question of whether the coverage can be forced upon an employer for a purpose it finds morally unacceptable.

It is not clear to me what constitutional right the employee beneficiaries of such medical plans actually assert against the contending religious freedom of the organizations that employ them.  The argument seems to be one addressed to the rights of women per se to have insurance pay for their contraception.  However that "right" is framed, it is not a constitutional right.  The government may be restrained from interfering with the use of contraception, but it is not empowered by the Constitution to make it more readily available.

The Catholic Church has long concluded in its teachings that human conception is a sacred event, and humans are to accord life at conception the greatest dignity and protection because such human life bears the very image of God.  This is a critical position for the church as it struggles to assert a “culture of life” in opposition to practices that it views to be part of a “culture of death.”  This point is not trivial. 

The fact is that most of the social functions a church performs are not in the nature of liturgical ritual.  Much of the social good of churches over the decades in American society do not appear "religious."  For example, soup kitchens, schools, hospitals, care for the elderly, orphanages, half-way houses, and care for the oppressed or homeless, appear secular in action rather than the exercise of religion.   If a religion also conducts a business that is formed essentially as part of a religious mission, but also requires the use of non-religious employees as part of its operations, it is no less religious.  Its essential religious mission confers its status as a religious rather than secular operation.

Any established major religion in the United States will have a substantial charitable component driven by its religious beliefs. The execution of this religious mandate by the faithful includes the necessity of hiring non-believers to perform administrative and operational functions in fulfillment of the mission.  The issue is which religious dictates can a church follow without violating basic individual rights of its employees?

The payment of minimum wage, the following of workplace safety regulations and the avoidance of criminal actions against an employee, are examples of the correct imposition of secular law to church businesses for the protection of employees. 

But the HHS requirement for contraception coverage is of a different kind:  It mandates a benefit that in its very nature violates a core religious position, while at the same time is not an essential right driven by a minimum decency for the good of workers. Rather, it is an insurance benefit covering an often optional, non-life threatening
condition: fertility. 

In the balance, the First Amendment constitutional protection is not to be so easily trumped.

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

Tuesday, March 06, 2012

$167 Million Employee Rights Verdict Awarded By Federal Jury in Sacramento

Ani Coupourian sued her employer, Catholic Healtcare West (now "Dignity Health"), for sexual harassment and retaliation.  The resulting $167 million verdict, obtained by Sacarmento Trial Lawyer Lawrance Bohm, is thought to be the biggest of its kind in the U.S.  The verdict included $125 million in punitive damages, an amount almost certain to be subject to reduction or reversal following an inevitable appeal.
Coupourian was a cardiac surgery  physician assistant who claimed she was repeatedly harassed by surgeons she assisted at Mercy General Hospital between 2006 and 2008.  She claimed the harassment was daily.  She also claimed the hospital allowed unsafe and unnecessary procedures, and had poor patient care standards. She submitted 18 written complaints about these conditions during her 2 years of employment.   She also claimed she was denied meal and rest periods.  The hospital fired Coupourian for the stated reason of not being a team player and for failing to respond while "on call" over the weekend.
Her attorney stated post verdict that the defense had always defended the case as if Coupourian were a "liar and a fraud."  The size of the punitive damages verdict suggests however that the jury perceived the defendant to the actual "liar and fraud." 
Some thoughts:  

1.  Federal court is not necessarily a hostile forum to try an employment law suit.

2.  Credibility counts as much as the evidence in a case, maybe more than the evidence, because the evidence is of no impact unless believed.

3.  This verdict reflects the jury's anger and disgust.

4.  Defense arrogance can be costly.

5.  Re punitive damages, be careful what you wish for.  The appeal has a good chance of success.  With $39 million in compensatory damages, and a benchmark constitutional range of "reason" between 2 to 4 times that amount, the verdict could be either sustained or cut in half. [The range varies by court decision, some cases allowing a factor as high as 9 times the compensatory damages].  The U.S. Supreme Court has held that a 10:1 ratio is almost certainly a violation of constitutional protections.  Wiki Summary.

6.  The large measure of compensatory damages suggests the jury expressed its anger by awarding a very liberal measure of emotional distress damages.  

7.  This verdict confirms the anecdotal data that when a defense attorney miscalculates the settlement value of a case, the jury verdict often exceeds the plaintiff's settlement offer by a much greater magnitude as compared to the Plaintiff's miscalculation and verdict that is less than the Defendant's offer.
8.  Yes, this verdict will be an incentive to try more cases by the employee bar, and an incentrive to settle more cases by the defense bar. 

9.  18 written complaints:  too much of a good thing?  As a plaintiff's attorney, I begin to wonder--was she hoping to get fired?  It would be interesting to hear the defense's argument in closing that she was a "liar and a fraud" (as her attorney characterized the defense.)

10.  Sacramento juries are not necessarily more liberal than those in the state at large.  Federal judges and trial procedures also tend to reign in grand staging and hyperbole.  This case may well demonstrate the power of the evidence and good lawyering despite the restraints.
[Attribution: This Article was derived from a report found at page 1 of the Los Angeles Daily Journal, March 2, 2012.]  

Thursday, March 01, 2012

New Voltage to Charge Arbitration Agreements to be Invalid.

The California Court of Appeal, Fourth Appellate Division has provided employees another basis to avoid arbitration of employment disputes. See Mayers v. Volt Management Corp (2/2/2012) No. G045036, as decided by our own Orange County based appellate panel.  

Volt provided for arbitration of employment disputes by "notice" in its Application form, its Employment Agreement, and its Acknowledgment of employee handbook.  An employee claiming he was not bound by the Arbitration Agreement had a week to consider the Agreement, and asked no questions about the Agreement.  All the versions of notice referred to "final and binding arbitration pursuant to the Federal Arbitration Act, in accordance with the applicable rules of the American Arbitration Association in the state where you are were last employed" [by Volt]. 

This case would cause a normal lay person to go into convulsions in the reading of the technical reasons for invalidating the arbitration provision.  The quick and dirty statement the reasons is as follows:

1.  There is no conflict between California and federal law on the matter of whether the contract for arbitration is enforceable.  Why?  Because the "savings clause"  [9 U.S.C. Sec. 2] of the Federal Arbitration Act states that the States may declare arbitration agreements as unenforceable by "generally applicable contract defenses, such as fraud, duress or unconscionability."  

2.  The employment contract in Mayers was unconscionable because obtained by "duress," that is, on a "take it or leave it" basis; AND because 

3.  The employment contract was procedurally unconscionable because it referred to "rules of the American Arbitration Association" without providing Mayers a copy of those rules, or informing him how to obtain them, for review before signing the Agreement; AND because

4.  The employment contract was "substantively" unconscionable because it provided authority for the Arbitrator to award the employer attorney fees if the employer prevailed in defending the discrimination suit, an outcome not ordinarily granted to the employer under prevailing interpretations of the Fair Employment and Housing Act.

Now, I find the ruling to be one of those head scratchers.  If a contract is actually obtained under duress, that is, "take it or leave it" in an unequal balance of power, what difference does it make that the party signing does not have the full contract terms for review (in this case the AAA rules)? Logically, the employee would have signed anyway, still under "duress."  Practically, I cannot imagine any employee actually taking the time to read the catalogue of rules and procedures for Arbitration, even if provided.
I am convinced of one of two theories here:  1) Lawyers, and the judges they become, really are in an alternate Universe, or 2) this whole intellectual exercise is built upon a fiction intended to have a good civic purpose:  to avoid employers gaining forums more favorable to themselves, and less fair to employees.  

As my daughter a few years back would say:  "Whatever!"  I am happy for my clients that they are given the "Section 2 Savings Clause" by which to get their cases before a jury.  

How to Get Ahead in Acting: Desperate Housewife Sues Director for Firing.

Did Director Marc Cherry wack actress Nicolette Sheridan on the head, and then fire her after she complained to ABC?  ABC investigated and cleared Cherry.  Oh hum.  I see that self-interested outcome all the time.  Cherry said he "tapped" her head to give her "artistic direction."  Yeah sure.  What a defense:  Directors go about tapping heads all the time.  Its standard in the industry.  Tap. Tap.  Who's there?  Sue.  Sue Who?  Sue you for battery, and for wrongful termination in retaliation for my complaint about the battery.  

The trial began in L.A. on Wednesday, February 29, 2012.  Sheridan apparently believes her attorney has real theatrical skill.  She began sobbing during his opening statement.  She hugged him at its conclusion.  Sounds like the Academy Awards.  

The defense focuses on the decision to terminate Sheridan as a matter of carefully planned elimination of Sheridan's character, Edie Britt.  But Sheridan states the proof will be that the decision to kill off Britt was made only after Sheridan's complaint, and that there are two writers for the show ready to come forward to testify to that timing.  

Desperate housewives is in its last season, having debuted in 2004.  The head direction incident occurred in 2008.  Sheridan is seeking about $6 million in damages.  

This article is derived from information provided in the Los Angeles Daily Journal on March 1, 2012 at p.3.