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. 

"If the pink slip doesn't fit, get redressed!"
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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 na├»ve 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


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

Monday, September 03, 2012

The Applicant: A Poem by Slyvia Plath


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