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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Another Low Impact CRASH Test for LASC Pilot

When I first wrote about the CRASH program last year with its first launching, I thought it would be a more dominant feature of the LA Superior Court.  It seems to be occasional and brief, running one to two weeks at a time, and not at all for several months between sessions.  It is after all a pilot program, and its success will determine its future.  This long delayed second phase and its short new duration makes one wonder whether the pilot will get the go-ahead for a "full season" run. 

The Central District in Downtown Los Angeles is again trying out the single referee assisted settlement hearing, or “CRASH” program.   The 47 member court is giving the settlement program its second run. 

This year the program will run for 5 days. The program is limited to employment law cases, and uses the services of a volunteer plaintiff's attorney and a volunteer defense attorney acting as mediators for each case. Currently there are about 145 active cases in the program. This number of cases is hardly significant given the 79,125 "general jurisdiction" lawsuits filed in Los Angeles Superior Court in the last 12 months.  Still, the program is getting positive reviews from participating attorneys. 

Judge Rex Hesseman, as quoted in the Los Angeles daily Journal June 4, 2012, said of employment law cases: “I think it's fair to say they have a disproportionate number of discovery disputes which often need judicial involvement.” Also quoted in the same journal article, Los Angeles Superior Court judge Mary Ann Murphy said employment law cases tend to have more witnesses once the case reaches trial.

Attribution:  Los Angeles Daily Journal, Monday, June 4, 2012, page 5. 

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