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.  

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


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.

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


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.

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