Drama, Conflict, Despair & Victory at Work

Bullies at Work: How to Respond.

2012-02-02T11:04:00.001-08:00

The following article is republished from Dr. Michelle Callahan. Visit her website, www.DrMichelle.com, or visit her on Facebook.

There's a new breed of female bullies cropping up in workplaces across the country. According to a nationwide poll by the Employment Law Alliance:

· 45 percent of American workers say they've experienced workplace abuse.

· 40 percent of workplace bullies are women, and women bullies pick on other women more than 70 percent of the time.

· Female bullies want to undermine, berate and intimidate the weaker women in their midst.

· Being a target of a bully not only affects your work life, but can also affect your health, possibly causing headaches, loss of appetite, high blood pressure, insomnia, clinical depression, panic attacks and even PTSD.

Clearly workplace bullying is not something to be taken lightly. So why do some women do it?

· They enjoy feeling powerful, especially when the other person doesn't stand up for herself. Also, women are often less confrontational when attacked. They tend to turn their backs on bad behavior in a way men might not.

· They are threatened by the potential success of others, so they want to stop you before you outshine them or reveal their shortcomings.

· They have a perfectionist or nit-picky personality combined with superiority about their skills and abilities.

· They are affected by stress and pressure to be high performing, with more work to do and fewer people to do it.

· They have mental health problems or a personality disorder.

How do you know whether you're being bullied, or simply dealing with a difficult boss or co-worker?

· The clearest sign is that bullying is something that happens again and again -- it's not just your boss having a bad day every once and a while.

· The abuse can include yelling; intimidating or humiliating behavior, like angry criticism and personal insults; or sabotage, whether it's vicious gossip or taking credit for someone else's work.

· Generally, though, women aren't openly abusive; in fact, there's evidence that their style of bullying is usually subtler than men's.

· Women are better at reading emotions, so they're good at little digs that most men wouldn't even register: the quick glare, or turning away and talking to someone else.

Ten Tips For Dealing With Being Bullied At Work

1. Don't get emotional. Bullies take pleasure in emotionally manipulating people. Stay calm and rational to diffuse the situation.

2. Don't blame yourself. Acknowledge that this is not about you; it's about the bully. Don't lose your confidence, or think you are incapable or incompetent. They are usually beating you at a mind game, not based on your actual work performance.

3. Do your best work. The bully's behavior will seem more justified if you aren't doing your best work, or if you do things like come to work late, take long lunches, turn in work late, etc.

4. Build a support network. Instead of allowing the bully to make you retreat into your office, work on building your relationships with your coworkers so that you have support and the bully doesn't turn them against you as well (although she will try and may even be successful).

5. Document everything. Keep a journal (on your personal computer or in writing, but never leave it in the office) of what happened when (and who witnessed it) so that if you need to escalate this problem to Human Resources, you have the information you need to make your case. Keep emails and notes.

6. Seek help. If you think you're being bullied, it's time to start talking to others who can help you manage this situation. Try a mentor, advocate, seasoned/experienced friend, even a legal advocate who specializes in bullying and inappropriate or discriminatory behavior in the workplace. Tread lightly when approaching your human resources department. They work for the company, not you, so you have to be careful about what you share depending on how well liked and supported your bully is within the organization. HR doesn't have the luxury of keeping everything you say confidential so don't treat a meeting with them like a counseling session where you should share everything you think/feel or assume that they can or will fix the problem for you.

7. Get counseling. It will help you deal with the stress, especially if the bullying is already affecting your physical and mental health. You have to take care of yourself.

8. Stay healthy. Maintain a healthy and balanced lifestyle outside of work to help you cope with the madness at work. Work out, get a good night's sleep and eat a healthy diet.

9. Educate yourself. Learn everything you can about bullying, your company's policies on inappropriate behavior and occupational law regarding this kind of experience. The more you know, the better your chances of successfully dealing with this situation.

10. Don't expect to change the bully. Real behavior change is difficult and it takes time. You have no control over a bully's willingness to accept that they have a problem and to work on it. You can do your best to manage the situation, but it's really the company's responsibility to be observant and responsive to the needs of their workers and the general work environment. In the worst-case scenario you may need to leave your job or be prepared for a long hard fight with your bully and your employer.

***

TORTS PROFESSOR, DEFEND THYSELF

2012-02-02T10:49:00.001-08:00

Let’s see: Torts, First Year: Fraud: a false representation of material fact stated with knowledge of its falsity or reckless disregard of its truth, and reasonably relied upon by the recipient with resulting detriment and injury. Now, how many law schools can do the basic issue spotting and analysis? It seems 2012 will be the defining year for some law schools whether they pass their own tort exams.

For example, the law schools may have to write a winning exam essay on this factual scenario: A law school presents data to potential law school applicants stating that 85%-95% of is applicants who graduate are employed with median annual salaries of $160,000 within 9 months of graduation. The truth is that the data is incomplete and misleading, and at best 40% of graduates are employed full time nationally within 9 months. The student/graduates testify that they would not have applied or paid tuition but for his reliance on the data.

New York class action attorney David Anzika said he will be suing 20 to 25 law schools every few months. He obviously feels he has found the mother lode. Will the defendants have the requisite legal talent to fight back? Maybe they should call upon their own tort professors, who may have to shift from education to advocacy on behalf of their employers.

There is a cultural perception that a law degree is the way to power and riches, and many college graduates chase that elusive carrot of big money instead of taking the time to know their true passions, talents and strengths. When a student has dropped several hundred thousand dollars of tuition as well putting his family and social life on hold for several years, the hard cold reality of unemployment can definitely produce a bitter, vindictive graduate.

What Mr. Anzika has tapped into is a long accumulating disjuncture between the dream, the perception, and the reality of what a law degree really offers. The irony may very well be that if students pursued a career in law only because they defaulted to an easy social/cultural definition of “significance,” they might very well be unhappy in their careers anyway, whatever their earnings.

[Article derived from Daily Journal, online, 02-02-12: “Four California Law Schools Sued Over Employment Data.”]

Is Your Boss a Psychopath?

2012-01-20T08:10:00.001-08:00

A psychopath is like you, but with your ego tendencies magnified greatly and your virtues severely atrophied. For example, your occasional selfishness in putting yourself before others is the central guiding rule of life for a psychopath. On the other hand, your tendency toward empathy and compassion when another suffers is non-existent for a psychopath.

Why don’t we see a psychopath coming down the tracks before he or she slams into us? Psychopaths are way too clever to be so obvious. They do not play BY the rules; rather they “play the rules.” That is, they know the advantage of appearing to be socially sensitive in order to manipulate people. The truth is that they could care less about you. It truly is “all about them.”

What does it feel to have an encounter with a psychopath? While the encounter may initially seem warm and charming, the longer-term picture will eventually emerge: you’ve been used and abused. You realize you were manipulated in some manner, and the psychopath had no care for you or your feelings whatever.

If this behavior sounds narcissistic, it is, and psychopathology is a subset of narcissism. The psychopath “kicks it up a notch” when it comes to narcissism. A psychopath is completely without feeling for others, believes the rules don’t apply to them, and will engage in lying and cheating without conscience to get what they want. People are objects to be manipulated. They have highly skilled manipulative skills, including charm and faked emotions.

If you thought psychopaths were all criminals, you would be wrong. Most are not. Most operate below the level of outright crime, but they still are poison to social relations, both at home and in the workplace. If they manage a work unit, you will see the damage eventually: distrust, negativity, poor morale, high levels of stress and depression, poor teamwork, and high levels of fear. A psychopath can be identified also by several workplace characteristics: they steal your ideas, take credit for your successes without recognizing you, blame you for their failures, and lie about their true motives and actions.

It takes considerable opportunity and time to identify a psychopath because they are so adept at “blending in” to “normal” social behaviors. But time is not on their side. Psychopaths leave a wake of destruction behind them. The problem in identification of a psychopathic boss in the present economy is that the opportunity to observe and track is lacking. Employees are much more likely to change positions and companies every few years now. Also, in a time of downsizing and general fear of lay-offs, the cold, calculating and manipulative personality type actually may be seen as an asset in making “hard decisions” and “getting the most” out of a decimated work force. Psychopaths are unencumbered by feelings when cutting people and costs. The psychopath sees the power to fire or lay-off as another weapon of manipulation.

Of course, there is no scientific tracking of psychopaths in the workplace. Bernie Madoff was a charismatic charmer who inspired high levels of trust. He also had psychopathic tendencies. He believed in his own grandiose statements of financial prowess, and he was willing to take extraordinary risks with other people’s lives and money. He probably never lost a night’s sleep worrying about his victims.

British researcher Clive Boddy and Canadian psychologist Robert Hare have written about the successful corporate psychopath. They identify an increasing number of psychopathic personalities rising to positions of senior management. In a 2010 paper they estimated that the percentage of such senior level management who were diagnosable as psychopaths was 4%. The average in the general population is 1%. [“Corporate Psychopaths Theory of the Global Financial Crisis”—2010 Journal of Business Ethics]. Why do psychopaths seem 4 times more likely to occupy the corner office in a work environment? The answer is the “Trojan horse” principle: Coming in, they look quite attractive. Over time, the poison within spills out into the work force, causing mayhem. By the time they are “found out,” they have eliminated or demoralized many of the emotionally healthy, and positive personalities that they oversee.

Companies that have strong values and practice decency in work relations are like healthy individuals: they tend to attract what is good and to avoid or expel what is bad. Dysfunctional individuals, and companies, of course, practice an opposite behavior pattern. Denial is the hallmark of the dysfunctional organization. “We really aren’t becoming irrelevant to the emerging new market” is an organizational idea, for example, that leads to bankruptcy. Likewise, in work relations, the failure of trained Human Resources personnel to see that a senior manager is a major destructive force is a form of organizational denial. Intervening to cleanse the system of such poison requires courage and clarity. “Blowing the whistle” is of course more difficult if the psychopath is a CEO or Senior Vice President. Many times, good people simply leave, and the bleeding continues.

This article is like a flare shot into the night, in the hope it will bring some focus and resolve to an individual reader needing to make a decision about how to respond to a “successful corporate psychopath.”

_______________________

[This article was inspired primarily by a CNN piece by Kevin Voight, Jan. 20, 2012: “Bad Bosses: The Psycho-path to Success?”]

Baby Bonding Rights--Dad's Have Rights Too!

2012-01-18T16:40:00.001-08:00

Many people understand that the Family Medical Leave Act [FMLA] (and its equivalent California Family Rights Act [CFRA]) provide 12 weeks of leave because of a serious medical condition of an employee or family member. But not often discussed, and perhaps not as often used, is the "baby bonding" portion of the medical leave law. The CFRA and FMLA allow a father, for example, to take "medical leave" to bond with his newborn. This leave right would apply even if the mother giving birth fully recovers and is available to stay with a healthy infant. The "baby bonding" time may be taken intermittently, and may be taken anytime within one year of the baby's birth.

Dads simply need to realize that "baby bonding" is both a great opportunity for them to experience those precious days that will never return. The law protects dads equally with moms when it comes to bonding. But if mom has a particularly tough recovery following delivery, she may obtain the additional protection of pregancy leave.

A woman's “Baby bonding leave” may be taken immediately following a pregnancy disability leave or at any time within 12 months of the baby’s birth. Theoretically, if an employee has a difficult pregnancy, she may be entitled to up to four months of Pregnancy Disability Leave (“PDL”), then an additional 12 weeks of “baby bonding” leave once she recovers from her pregnancy-related disability. In other words, a women disabled by pregnancy who then gives birth may take up to seven consecutive months of job-protected leave.

Employers may ask for a medical certification from a healthcare provider to verify your need for CFRA/FMLA leave; however, under CFRA (unlike under federal law) employers may not ask for the diagnosis, treatment, or other “medical facts” supporting your need for leave. If a healthcare provider’s certification states that the employee has a “serious health condition” as defined by CFRA, and also states the date of onset and probable duration of the condition, the employer cannot ask for any additional information.

When Does an Employee Lose His Right to Privacy of Mobile Phone Calls?

2012-01-18T14:55:00.001-08:00

Employees seeking privacy in the use of smart phones and laptops at work are advised to use only their own equipment and to pay their own usage bills. If the phone is provided by the employer and the account paid by the employer, the likelihood of a court finding no legal right of privacy is high. If the employer provides the phone, pays the bill, and issues a clear written policy that all information on or through the phone is subject to company inspection, then it is virtually certain that personal use of the device will be without privacy protection. Holmes v. Petrovich Dev. Co. (2011) 191 Cal.App.4^th 1047.

The situation is less clear where the phone is owned by the employee, but is used for both personal and business purposes, and the employer reimburses the employee all or part of the bill. In the absence of an employer’s required privacy waiver, I do not believe that paying for business calls entitles the employer full access to an employee’s private mobile phone communications. However, there is nothing that prevents an employee from knowingly waiving his privacy interests in mobile phone data stored on the phone. If the employee signs an acknowledgement and waiver of such privacy rights after being informed of Company policy, potentially everything on the phone becomes accessible to employer inspection. Employees therefore should take seriously any such waivers and acknowledgments they may be required to sign as a condition of receiving payment of the mobile phone bills. TGB Ins. Servs. Corp. v. Superior Court (2002) 96 Cal.App.4^th 433.

But even in the face of a broad waiver of privacy rights, I question the validity of such waivers if they are obtained as conditions of receiving reimbursement for the costs of business calls made on employee-owned mobile devices. The duty to reimburse employee costs is statutory and unconditional and is itself a matter of “public policy” under Labor Code Section 2802. The more reasoned approach is that the employer is to be restricted in viewing data that pertains only to company business.

What about the situation however where the employer has no express policy concerning privacy of mobile phone data, but reimburses the employee either a fixed amount or an “actual cost” amount for business related phone calls on the employee’s mobile phone? Assume further of course, that the employee uses the phone for both personal and business calls, and perhaps even has multiple applications on the phone which are for his personal use only. These apps can include abundant “private” information, such as journal entries, GPS tracking histories, music and photos. In my opinion, the employer has no right to seize the phone, and no right to seize the data on the phone. At best, the employer might succeed in obtaining a subpoena for the business data only, or reasonably require the employee as a condition of continuing employment, to disclose only the business call or business app data.

The U.S. Supreme Court in City of Ontario v. Quon (2010) 130 S. Ct. 2619, held against employee ‘s claim of privacy rights in that case, but also declined to make a blanket rule for when data was without privacy protection on employer issued digital communications equipment. In Quon, a public employer issued mobile devices to its officers and paid the full cost of the devices. The police department wanted to determine if the usage plan they had selected was too low, after incurring overage charges under their current plans. The service provider provided the Department with transcripts of usage. The Department discovered Quon had used the device for personal sexually explicit text messaging, and disciplined him. The Court assumed Quon had a reasonable privacy interest in the messages (without having to address the issue head on), but also held that the facts of the situation justified the search of the text messages as part of a reasonable business function. In skirting the privacy expectation issue, the court wrote that the technology of mobile communication devices was advancing so quickly that a blanket privacy rule would be premature.

Where does that leave us? Employees still have privacy rights, and merely that they use a personal communication device to sometimes conduct business does not open the door for employer inspection of all data on the phone. Even if an employer required an employee to waive privacy rights to private communications on the employee’s own device, the employee’s resistance to such a demand would likely be justified, and if the employer fired the employee for his resistance, the employer would be liable for “wrongful termination in violation of public policy.” The “public policy” is found in both the U.S. and California Constitutions guaranteeing the right of personal privacy.

A Special Christmas Present From My New 83 Year Old Friend.

2011-12-24T14:09:00.001-08:00

She was frail, a bit humped over, but very fashionably dressed for a Christmas Eve morning stroll along the cliffs overlooking Dana Point harbor.

Her lipstick was bright red, and her make-up subdued and tasteful. She wore her age well, her youthful soul informing her smile, eyes, and speech. She sat down at a bench looking out over the ocean. I stood some distance away, aware of this little figure who walked slowly into my view. “Good morning” she said brightly. “Good morning!” I replied as brightly. It was Christmas eve, and a time to be friendly. I walked over to her, and stood there a while, speaking of the beauty of the day. “I come here often,” she said, “It make’s me feel good to be here.” I love to converse with older people, because I love learning their stories. I knew this woman had a story. She was too alive, to energized, and too engaging not to have adventures to tell. Little did I know the story was ongoing, and wonderful.

I will spare you of my journalistic inquiries. I am an incorrible interrogator. It is part of my training as a lawyer, but also, just a penchant for being nosey about things that interest me. I learned that my little humped over acquantance was Sonia Neil, originally from Buenos Aires, Argentina. She had memories of growing up along the coast, always close to the ocean, and never happy away from the sea. She shared wonderful memories of childhood, and mother who loved her. She married, and a daughter was born. Her daughter wished to pursue the performing arts, and so Sonia left everthing behind to give her that opportunity in the United States. They managed to first locate in Houston, where there were some Argentine friends. Eventually, she came to live in San Clemente California.

She mentioned that she had given up her own dreams to give her daughter that opportunity. “What dreams were those?” I asked. “I sing.” she stated with a calm confidence. “I have always sung.” I was stunned. She spoke as one fully present, and excited. “Tell me more.” “Oh, I recently gave a recital.” “Who arranged the recital?” I asked. “I did!” Sonia responded, a little indignant. “Did you sing in Spanish or English?” I asked, assuming as an Argentinian, she might prefer Spanish. “Italian.” she answered. “I sing opera.” she answered. “You presently sing opera?!” “Of course. The woman who hosted my recital wants to be my manager.” She paused. The moment was perfect. A light warm breeze wafted our skin. The sun felt good--an incredible Christmas Eve day in Calfornia.

After a moment, she added that she studied under a master at the El Teatro Colon in Buenos Aires, or as she called it for my uneducated sake, “the famous “Colon Theater.” I confessed my ignorance. It is like the “Metropolitan Opera” at the Kennedy Center in New York, she graciously explained. Life it seemed had taken her away from her dream to support the dreams of others, but she continued singing. For a time she lived in Houston, she said, and would sing with accompaniment of retired members of the Houston Symphony Orchestra each month in the large concert hall of the symphony. She sang because singing was who she was.

I was about ask her to sing for me, and hesitated. The time and place was not ideal. To my delight, she did something possibly better. She wore a little purse about her neck, one possible made by or for her especially. She opened a little zipper, perhaps two inches long, and pulled from the purse a little square of paper, and upon it was handprinted her name and “YouTube.” “My nephew recorded me.” She explained. “I don’t really know anything about the internet.” “Have you seen the YouTube videos made of you?” I asked. “Oh yes.” she answered. “Are you pleased with the results?” “Very much.” she replied without hesitation. I placed the little paper in my billfold carefully. We said goodbye, and I drove to the nearest coffee house to gain access to an internet host.

So it is, I am sitting here at the Coffee Bean in Dana Point, writing this story of Sonia Neil. I could continue with my story, but what a waste when I can give you her gift directly.

Here is the link to Sonia’s singing, who at age 83 demonstrates that youth is a very relative term.

Sonia Neil on YouTube.

Stopping Middle School Bullies: Principals Must Wake Up to the Principles of Civil Rights!

2011-12-22T19:14:00.001-08:00

A society that fails to protect its children from other children has two problems: the child as aggressor and the child as victim.

When my white middle class daughter was routinely harassed by out of control middle school boys during her formative years, I was outraged at the passive attitude of the school administrators. My daughter was not alone in this gender based harassment. At the time, schools were not liable for the sexual harassment of its students by other students. That has changed in CA where the school fails to take preventative and corrective measures.

But a deeper problem persists: bullying. It is a practice that destroys fragile and vulnerable young people or wounds them for life just when they most need to feel worthy and accepted for their intrinsic value as God’s children, not just as students in the system. We have all read of the student who commits suicide due to unbearable bullying, or who “goes over the edge” and begins a rampage of killing in a local school. Those extreme situations are relatively rare, but there are millions of kids I suspect who will have flashbacks all their lives of the cruelty they endured in school. Now, multiply that harm by the broken and lost relationships of these kids as they go through adulthood. The social costs are enormous.

In May 2011, the U.S. Commission on Civil Rights convened its first-ever hearing on the issue of harassment and violence against Lesbian, Gay, Bisexual and Transgender students. A new study by Dr. Caitlin Ryan the Family Acceptance Project, published in the Journal of School Health, provides data showing the scope of injury caused by bullying of these particular children. I would like to see the outcome of the Commission’s work, when looking at the study, to recommend strong school policies for the prevention and correction of bullyism. Teachers especially need to be trained to seek out and report bullies on behalf of the victims. Administrators, and especially School Principals, must be held accountable for promptly investigating and correcting incidents of bullyism and harassment. The victims are selected by bullies for the very reason that they are unlikely to report the abuse. Strong measures to discipline bullies with public reproof and with expulsion are also needed. If the schools don’t comply, they should face the civil liability for failure to meet presumptive standards of protection. Very important is that children who are courageous enough to complain be protected from retaliation by the “clique” that initially attacked them.

I recently heard a man I deeply respect, a Professor of Philosophy at USC, Dallas Willard, state that our educational system is virtually useless: it stuffs kids with information, but fails to teach sound values. I agree that information is not knowledge, and knowledge is not wisdom or virtue. I am not as confident schools alone can get that job done. Parents are critical too. But there is a short term emergency: children are being brutalized by other children. Until the matter of virtue, honor and dignity become part of the social memes of a particular school, action is needed now to stop kids from attacking other kids.

Feds Sue School Adminstrators For Failing to Stop Harassment

The Case for Class Actions Against Age Discrimination in a Depressed Economy

2011-12-19T08:48:00.001-08:00

The term “holiday” derives from its medieval source of “holy day.” “Holy” itself refers in its origin to “set apart” and “perfect.” These “holidays” are for many neither perfect nor holy. These “happy holidays” for many are days of increased sadness, disappointment, and perhaps serious, life-threatening depression.

It seems there are two intersecting forces that meet during these holidays: the extreme expectations of joy and connection in our family and friendships and the fact that as many as 1 our of 5 of us are unemployed. Some of us have been without gainful, steady employment for one, two, or more years.

I and psychologists have this in common in our practices: we are seeing a significant number of clients who are chronically unemployed. Economic depression and emotional depression are close cousins. We are each seeing persons over 40 in particular who are likely being excluded as re-employment candidates because of age discrimination. [Emotional Impact Link].

There is, in my opinion, a major gap in the enforcement mechanism of the federal and state agencies concerning this problem of age discrimination in a down economy. I read or hear of virtually nothing to indicate the agencies are allocating more of their resources to investigating and enforcing the laws against age discrimination in hiring. Yet, the anecdotal evidence is that older workers are hurting disporportionately in this depressed economy. How many of us know of workers over 40 or 50 who have been unemployed for over 2 years? How many such 20 or 30 somethings do we know in that same situation? News articles confirm the stories of older workers who feel they are being bypassed for younger candidates.

Discrimination generally presents challenges of proof for the employment lawyer, but discrimination in the hiring process is a special challenge. The employer can hide its decision process behind so many subjective factors. The bypassed employee must prove that but for the discrimination, he or she would have been selected from among the numerous candidates that now compete for a single postion. Lawyers depending on contingency fees are understandably hesitant to take on cases of discriminatory non-hiring. It is comparatively easy to make the case for a fired employee who at least was thought competent and experienced enough to be hired in the first place.

The courts have provided an imperfect but sometimes powerful tool to get past this problem of proving the “cause” of the non-hiring to be discrimination. The theory is “disparate impact.” Simply stated, the proof is allowed to go forward based on a statistical showing that older workers, as a group, are less likely to be hired (or more likely to be laid off) than younger workers.

From a trial preparation view, there are two things a plaintiff’s attorney must quickly accomplish: he must obtain the early services of a good statisitician and he must obtain the employer’s EEOC reports and other data concerning applicants considered, compared to applicants hired. The statistics expert hired early in the process is useful and maybe necessary because he or she can guide the attorney in obtaining the necessary employer data. Also, the expert can assess the merits of the case as the data is collected. Finally, the expert will be needed at trial to satisfy the court that the data is accurate, sufficient, and meaningful for an expert opinion.

The “disparate impact” theory of age discrimination is given special force in California because the legislature enacted a statute that specifically affirms that age discrimination may be proven by disparate impact analysis. This same statute states that such evidence is to be viewed in light of a public policy that recognizes the harm done by age discrimination.

I urge my plaintiff’s class action colleagues to consider bringing class actions on behalf of older workers denied employment. Why? Because juries are attuned now to the anecdotal stories of their family members, friends, and business colleagues that this economy is especially hard on older workers seeking re-employment. Class actions, even after adverse U.S. Supreme Court rulings, are far from dead. To the contrary, class actions maintained within the class of “California based workers” are still quite viable.

One problem in certifying the class of “unhired older workers” will be to prove that there is true commonality of facts in the hiring process. Each applicant will present a unique mix of qualifications and experience. Yet, the data can be sorted to produce a fairly well defined class of persons based on the hiring criteria set by the employer: such as education, years of experience, positions held. These criteria can be the basis of class membership showing the member to be “qualified” but not hired. The data could be even more vivid if the class of younger persons on these same objective criteria was shown to be “less qualified.”

A target class action defendant would be a large employer obviously, in order to produce the number of unhired older workers to make the class viable. Also, it would be helpful to select an employer having the stored data needed to support the proof of discrimintory selection. I would also suggest selecting a target defendant that emphasized a “youth culture” that was based on appearance more than actual skills and demonstrated ability. “Image” cannot be the basis to discriminate. Age discrimination is not an acceptable marketing tactic in hiring.

The “holidays” can be times of feeling despair if you have been long term unemployed. You can easily feel “unworthy” or shamed because you are unable to provide income for your family. A class action lawsuit will not address these emotional struggles. In fact, litigation may well make them worse. But if you find that you want to “push back” by taking proactive steps to represent a class of workers in similar circumstances, consider finding a class action employment lawyer to evaluate your potential case.

ADA: Accommodation of Work; Not Accommodation of Qualifications to Work

2011-12-16T18:13:00.001-08:00

If a disability has delayed an individual's ability to obtain needed certification to work as a teacher, does the employer have a duty to accommodate the employee to allow him to obtain the certification? The Nintch Circuit Court of Appeals Court has ruled "No."

[Johnson v. Board of Trustees (9th Cir. 12-08-11) 2011 DJDAR 17670.]

The teacher in question, Johnson, suffered from major depressive disorder, bipolar. She had five years to obtain renewal of her teacher certifcation by taking required classes. She had to complete 6 semester hours of classwork to qualify. She sought a provisional certificate from the School Board just before the five year period elapsed.

Johnson and the School District agreed that Johnson had the ability to teach at the time of her application for provisional certification. Johnson claimed her disability prevented her from getting the certification on schedule, and so the District had a duty of accommodating her by a provisional certification that would allow her more time to obtain full certification. The District claimed it had not duty to accommodate her efforts to complete the classes because she had delayed unnecessarily over five years without requesting an extension of time. The District did not renew Johnson's contract because, it claimed, she had failed in a duty of the contract: to maintain her full certification.

Looking to the Code of Federal Regulations, the Court found no requirement to accommodate the "job pre-requiste" process. The accommodation duty was only applicable to work the employee was qualified to perform. The obtaining of the qualifications, such as passing examinations for licensure, are not within the duty to accommodate.

This decision is not appliable to the California Fair Employment and Housing Act, but may be a source of guidance and argument for a court taking a conservative view of the accommodation duty. However, Calfornia diability accommodation law has generally followed more expansive and liberal employee protections than federal ADA law and federal courts interpreting the ADA.

A heart a day

2011-12-16T06:07:00.000-08:00

A heart a day

Can't think of anything more socially dangerous than a heartless lawyer, especially in my practice of employment law representing hurt people. This creative site is built on a theme of hearts--all in all not a bad theme for life itself, whatever your work may be. And . . . February, a cold but not heartless month, is approaching.

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

An Employee Rights Lawyer Suggests Ways to Put Him Out of Business

2011-12-14T06:22:00.001-08:00

Here is my comment to the linked article: "Ten Things Only Bad Managers Say" from Business Week Magazine:

This is a well crafted article based on real experience. I see hundreds of performance reviews and manager emails in my practice, and I attest to the accuracy of "bad manager" profile. Good managers practice a combination of "truth" and "grace." When an employee is not meeting a standard of performance, they communicate the need for improvement, but they also communicate a sincere desire to help the employee reach a higher level of skill and competence. They communicate implicitly that they respect and like the employee while also addressing the particular performance issue. They "back-up" that attitude with real encouragement and cooperation in assisting the employee to make the improvement happen.

Some recommendations: Use personality screening tests before promoting managers. Do a background check with persons the manager has managed at other companies. Get feedback from current co-workers about a candidate's relational skills. Use 360 degree anonymous feedback after hiring or promotion to anticipate problems. In interviews, question candidates with hypothetical work situations to see how they would likely respond. Set up measures for the manager on relational abilities at work. If the manager is open to change, and is self-aware of relational problems, provide him with a performance coach and additional training. But if a manager is sucking the life out of his team by authoritarian, fear-based tactics, remove him from the position before he causes more harm.

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Lawyer-Poet, Nay Poet-Lawyer Wallace Stevens: of "Moral Law" & "The Opposing Law"

2011-12-01T11:27:00.001-08:00

A High-Toned Old Christian Woman

Poetry is the supreme fiction, madame.
Take the moral law and make a nave of it
And from the nave build haunted heaven. Thus,
The conscience is converted into palms,
Like windy citherns hankering for hymns.
We agree in principle. That's clear. But take
The opposing law and make a peristyle,
And from the peristyle project a masque
Beyond the planets. Thus, our bawdiness,
Unpurged by epitaph, indulged at last,
Is equally converted into palms,
Squiggling like saxophones. And palm for palm,
Madame, we are where we began. Allow,
Therefore, that in the planetary scene
Your disaffected flagellants, well-stuffed,
Smacking their muzzy bellies in parade,
Proud of such novelties of the sublime,
Such tink and tank and tunk-a-tunk-tunk,
May, merely may, madame, whip from themselves
A jovial hullabaloo among the spheres.
This will make widows wince. But fictive things
Wink as they will. Wink most when widows wince.

Wallace Stevens

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Creating a Network of Positive Relationships Focused on a Common Mission.

2011-11-29T11:38:00.001-08:00

What do people really work for? Oh, you may hear that it's for the money, and of course, in part, that's true. But beyond paying the bills, why do people come to work, and stay at work? I love the way Wikipedia was born, grew, and now prospers, while Microsoft's Encarta went south. Why? Intrinsic motivators are more powerful than extrinsic motivators. (in most cases).

An instrinsic motivator is one in which the individual feels good and positive about what he or she is achieving. It "means" something personal to the employee. Maybe that "something" is not the widget itself, but the way the team (or work community) interacts on a daily basis to produce the widget. People are foremost relational. It is how we are wired. Even socially isolated persons usually crave connection, maybe more so.

The point is this: improve work relationships, and you improve productivity. "Tough love" means getting the job done, holding people accountable to one another for results, but it also means providing care, support, praise, and respect. Can it be done? In healthy work environments, it is done every day.

Lesson: pick your employees not only for what they know, and what they can do, but how they interact with other people. Do they add energy or suck it out of the people around them?

Enjoy the "Inc." link for more details.

Employee Motivation

RUNNING WITH THE PUPS [John Vrba Story]

2011-11-02T13:52:00.001-07:00

The first thing I noticed about John Vrba was his bright green sport coat and multi-colored tie. His grooming was impeccable. His eyes were clear and full of life. His skin was somewhat wrinkled at age 92, and yes, there were some age spots, but his face did not sag. Mostly, he tended to smile. He usually had a funny little story to tell, and often the stories were true, based on some encounter he may have had either that morning, or 40 or 50 years ago.

I had asked John to stop by my law office to be interviewed. I am an employment lawyer. My occupation and my interests in writing often overlap. I sometimes say I write for a living, because most of the power of my communication is in what I write. But my writing include marketing pieces as well, and when I first met John at a LeTip networking meeting several weeks ago, I knew he was a story waiting to be told. I also knew I could not capture more than a sliver of the narrative, but I wanted to get his views on how the workplace had changed over the years, what made for a great employer, and what made for a great employee. I also wanted to know if he encountered ageism, and how he dealt with it.

We met for about 1 ½ hours on a Friday afternoon. I knew early on that when you examine a long human life, you will find some interesting twists and turns that make you wonder if fiction can ever match fact. For example, I learned in casual conversation, with something of a sly grin from John, that his current wife was the daughter of his first wife’s sister.    He recounted that he first met his second “three year old wife to be” at the wedding reception for his first wife. His wife’s niece was named Connie. John’s first wife died many years later. John again met Connie after her father’s funeral, at her mother’s place, when John went to express his condolences.   During that meeting, Connie, 19 years his junior, asked him to escort her to an upcoming Christmas party. (Yes, John has always been younger than his biological years).   They have been married since, and the irony is that John has been in generally good health, while Connie has been struggling with serious problems.

But my goal was not to focus on the past, but to understand the present. How is it that this vibrant man could actively continue working at age 93, and continue to add value such that he somehow got past all the age barriers that stopped other workers? Is ageism real in our work culture, and why does it seem to afflict some more than others? I had only a short time, and I scanned which of my listed questions would likely be most revealing.
John’s industry is the media advertizing sector. Specifically, he has built his career in the field of radio and T.V. media sales. His company’s prospects are Ad Agencies who need media planning and buying assistance.

So I hit John with the tough question first: How has his industry capitalized on the social media phenomena of the last 7 years or so? John’s eyes lit up. “This is big,” he said. “Social media allows for the targeting of regional and local advertizing. We can place an ad now that is specific to predefined criteria that our customer [the ad agency] wants to hit. The “ads” we now generate and help place are the sidebar and banner ads on Facebook, Twitter, or Google searches.” I stopped right there, and I looked more deeply at this 93 year old man who was energized in conversation. “John,” I said, “I realize as you are talking to me that you could just as well be a 23 year old man. This body of yours, at 93, is just a vehicle you’re using.” John smiled. He obviously liked the compliment.
The elephant I wanted to bring into the room was ageism. I didn’t spare John. “Tell me,” I asked him, “How do you go up against the young turks, that is, how do you run with the competition?” John answered with a story.   “I used to brand myself as the “Patriarch of the Ad Industry” but this morning a creative friend and I came up with a new moniker: “Test Patterns to Tweets.” He smiled. “Do you tweet?” I asked him.   John was now patient with me. “Of course. Just this morning I created a tweet that was for short guys like me. I entitled it, ‘Bring Back the Elevator Shoes.’   I bemoaned how women are wearing shoes that make them taller and taller. We short guys need help.”

In my own work, I explained to John, I see hundreds of employees each year. I hear so many stories of bad employment relationships, often the result of dysfunctional bosses, but just as often, the result of employees who skirt responsibility as well. I wanted the “view from the mountain.” I knew that John in his career had managed people. “John,” I asked, what distinguishes the ‘OK’ or ‘average’ employee from the great employee?” For John, the great employee had the ability to think deeply, to find creative options, and who had a positive “can do” attitude, with lots of energy. I realized I was looking at a “great employee” who just happened to be 93.

I shifted the question. “John, what in your opinion distinguishes an ‘OK’ or ‘average’ boss from a great boss? He thought awhile about this one, and it became apparent that he was thinking of his current boss, Dennis Holt. John didn’t pull any punches. “What employer would look past my age, and give a 93 year old a chance to prove he could still add value to the company?” he asked. “Dennis Holt is that kind of guy.” I searched for adjectives. “OK,” he added: “personal, empathetic, smart, and driven.” He recalled the “bad boss” environment of a job he held many years earlier in a Midwestern city. His boss there was tyrannical. He ordered John one day to take him to a private party at which only John had been invited. While there, the boss drank too much, and began harassing one of the women. Embarrassed, John managed to convince his boss to leave, but was required to take him to a bar, where his boss told him: “John, your job tonight is to get me laid.” That was enough for John. Within two weeks, he had left the company and re-settled in Southern California.

That little story led the “employment lawyer” in me to ask for John’s view about whether sexual harassment had abated or increased, or remained about the same, in the workplace. Again, the answer came with a story. He remembered an employment of years ago when long drinking lunches were common. “We don’t do that kind of thing today.” But he noted that in those days, bosses would often get frisky with the female staff over lunch, and carry that behavior back to work. “Things have definitely gotten much better,” he noted. I wasn’t satisfied with this answer however, because in my law practice I had noted a trend that mystified me for a while. The older men seemed to be behaving better while the younger men were getting more out of control.

Again, I didn’t hold back, because I realized the man across the table was fully in touch with current realities. “John, we all know that internet pornography is pervasive and easily accessible. We know that a generation of young men has formed its ideas of women and sexuality based on that exposure.” John nodded his understanding. “Do you think the harassment has really abated over the years?” John stuck to his guns. “Men now are learning where they can and cannot act out,” he said. “A lot of that harassing behavior is happening outside the work place.”

John noted the time. He had an appointment, but graciously offered to meet again. You’ve given me a lot to work with, I told him. I rued the lack of time or skill to capture much more of this energetic man’s life and wisdom. “Have you considered employing a ghost writer to write your memoires?” I asked. Ironically, he had just spoken to a writer that morning about the possibility. Apparently, our appointment had led him to think about leaving something useful behind.

I returned to my desk, to resume my usual lawyering. I looked up at my original war photo of Abraham Lincoln, a picture of the President in his 50s, with deep lines and tired, almost sad, dreamy eyes. Yet, I was amazed to see not a touch of gray in his hair or beard. Looking at Lincoln, and thinking of John, I wondered:   What is the value of a life, what is the content of a story that makes the story worth telling, or a life worth living? One answer I derived from meeting John was not from the answers he gave, but from the attitude he brought to the process itself, the same attitude he brought to life: he was curious and engaged. He was creative, and alive with stories and opinions, ideas, and observations. Just the way he dressed communicated a statement of “Here I am world.” But that would not be enough. The thing that was most clear in my meeting with John was something of that same quality I saw in the Lincoln photograph: decency and character.

Put ‘em in the Stocks; Brand ‘um; Give ‘um a Scarlet Letter

2011-10-31T14:25:00.001-07:00

Employers who are found to have willfully misclassified their employees as independent contractors are required by a new California statute to admit their transgression on their website. Why? What was the intent of this statute? The most immediate idea, I speculate, is that there is some cost associated with this action: shame? Loss of quality employee applicants? Loss of new deals? Loss of vendor relationships?

Basically, under this newly enacted statute any entity that "willfully misclassifies" an individual as an "independent contractor," when that individual is determined to have actually been an "employee," faces new stiff civil penalties and other repercussions. The law amends the Labor Code to add two new sections, Labor Code sections 226.8 and 2753.

In business school I learned of the “unintended consequences” in the way remedial legislation is enacted. Basically, every law produces behavior that seeks to skirt the law or avoid its consequences, with the result that the new behavior is potentially as bad or worse than the original behavior. An example is confining your child to his or her room for some domestic violation. The child now takes his behavior outside of view, or makes up a story that she is dying of toxic mold in the shower, or looks for opportunities to spend in her room because she is now addicted to video games. The point is that legislation has a stimulating affect on the creativity needed to avoid its original purposes.

How do people calculate the cost of posting a “Scarlet Letter” on a company website? It seems to me the first question is how big and publicized is the “letter?” It may be in the statute, or in the regulations yet to define the requirement of the statute, but there is quite a difference in enormous font in scarlet on your company’s home page, and an obscure fine print on a page embedded in a maze of a pages. Unless the law spells how exactly “where” and “how big,” you can be sure it will be small and obscure.

As for shame, how does a company feel anything, let alone shame? The law, for example, does not allow a corporation to bring a case for “defamation of character” because the corporation has no feelings to be hurt, and therefore f no basis for damages. It is problematic to think an officer of the company feels “shame.” The officer seldom acts in isolation of other officers and seldom feels responsible entirely for a corporate decision. The individual “shame,” if any, can be readily diluted and rationalized.

A writer in the Daily Journal [L.A. Legal Newspaper] quotes some company lawyers as stating the violating corporation will spin the bad press into a positive statement of “We made a mistake, and now we’re a wonderful company that loves its “new” employees.” This conclusion just isn’t consistent with short-term corporate behavior. Born again white house counsel Chuck Colson, convicted in Watergate, required years to overcome a skeptical public’s view of his work in prison ministry. Corporations are notoriously short sighted because their decision makers are rewarded for quarterly profits. Frankly, the turn over of executives in some companies is so fast (based on those quarterly results) that really reforming a practice is unlikely. By “reforming the practice” I mean not just reversing the violation, but transforming the culture that produced the violation. “Sure, says the current management. Just do it by the end of the fiscal year.”

The California Labor and Workforce Development Agency will begin enforcement of the new “Scarlet Letter” law on January 1, 2011. The new law will impose penalties of $5,000 to $25,00 per infraction. Now, if the number of infractions is per “employee” and over a multi-year period, I can see how someone in the Human Resources Department, the Finance Department, and maybe in the Corporate Governance department, could get their “feelings hurt” if heads “must roll.”

But let’s be real: Corporations speak only the language of “cost benefit.” If the cost of non-compliance is less than the cost of compliance, then the decision model indicates non-compliance, at least until the cost of getting caught enters the calculation. [I’m sorry to be so jaded. I seem to see only the bad actors, not the good ones in my business as an employee advocate.] Let’s see: Five hundred employees times $10,000 per infraction equals $5,000,000.00.

But don’t jump to the hasty conclusion that this will be an incentive to re-classify. Add into the cost-benefit analysis the saved costs of non-compliance: no workers’ compensation, no state and federal payroll taxes, no medical, dental, or 401k requirements, no extensive record keeping requirements, no employee reimbursement expenses, no overtime premium pay, and no need to deal with all those sexual harassment, discrimination, A.D.A. and Family Medical Leave regulations. Could it be that the “unintended consequence” of this law will not be to re-classify so called “independent contractors,” but to replace current employees with real independent contractors or to outsource their positions?

Which leads me to this conclusion: it is much easier to enact a law than it is to repeal it. Would it not be a novel idea that every law must undergo a “probationary period” of one to three years to examine if it does what we hoped it would do? Would it not be wise to spend at least much time on the “back end” of a law to study its effects as we spend on the “front end” to decide whether to enact it? This “hope” of mine is probably as likely of implementation as Sacramento coming to grips with its proliferation of “unintended consequences.”

What is your LSSMS [Law School Social Media Score]?

2011-10-28T12:20:00.001-07:00

A survey of 128 American Bar Association accredited law schools conducted by Kaplan Test Preparation indicates 41 percent of law school administrators used Google to learn more about candidates. 37% used Facebook. These numbers are approximately the same as the numbers for employers who use social media searches to screen job applicants.

So what the heck? What are they looking for? I wonder how much thought has gone into the process of searching the internet for information. A law school I suppose could look for a certain political affiliations or preferences, or search for persons of a particular social or economic philosophy. Columbia might turn up its nose at a social conservative or libertarian, while University of Chicago might embrace just that person. What if a candidate frequently quotes Nietzsche or Chairman Mao? Perhaps a candidate is a born again Christian who enjoys postings from scripture, or is a Muslim who comments on Middle East tensions with quotes from the Koran? A California law school candidate who expressed support or opposition to the “one man—one woman” limitation of marriage amendment to the State Constitution might not pass the “political correctness” test of some law school administrator.

The issues of how law school candidates are selected of course will be cloaked in the unwritten search criteria of the admissions officers doing the search. Further, the constitutional test of the selection will be different for private law schools versus state funded law schools. Even private non-religious law schools will be prohibited from discriminatory admissions on the basis of race, sexual orientation, gender, religion, age, or other such criteria. In California, the Unruh Civil Rights Act [CA Civ. C. Sec. 51] prohibits discriminatory business practices, and the state Constitution itself extends civil liberties protection against private (non-governmental) violations.

It seems to me however that a democracy has an inherent flaw. The people themselves may not rise to the occasion of living democratically in their best interests. For example, if a majority wishes to vote into law a social system of government benefits, there may be social costs that actually erode the enjoyment of individual freedoms as a result. Likewise, when public opinion prevails to set standards of “right conduct” or “right thinking,” individuals may have to pay a very high social price for being individually different. This form of social compulsion is as oppressive in some ways as governmental oppression. Minorities have historically been excluded from the rights and privileges of living in a free society by the force of cultural bias and discrimination of private communities. Who needs a government censor or police force when the citizenry itself marginalizes the non-conforming minority?

Law schools, medical schools, schools of architecture and engineering, schools of business and finance, schools of social and political science, all can become “clearing houses” for “right opinions.” If your personal views become the basis for screening you out as a candidate, you quickly learn to hide or modify your views in order to advance in society. The result is a poverty of viewpoints, ideas, and even innovation.

So, while having more information is good when making decisions, the real question is what are the screening criteria of the professional schools that use social media information? If people of unpopular views are excluded from the opportunities to advance in society because of unspoken filters applied by the social police, we will be living in a rather bland and uncreative society. We will have a society of “yes people” who conform to what every prevailing bias may exist. This outcome is more likely where the policing criteria are exercised by the professional schools that produce the nation’s leaders. The result is that society will ultimately suffer for a lack of vigorous debate infused with new ideas.

So, if you want to become a lawyer, or doctor, or architect, or campaign consultant, or engineer, or social worker, or government leader, and know you will be applying to graduate school, you may well now feel the pressure to dress, act, and think differently during your so called “private” time for fear either you or one of your friends will expose your “non-conforming” ideas. Maybe you will simply hide your real thoughts and feelings, and avoid expressing your true viewpoints and interests in writing, or by pictures or video. You will act “as if” you conform to the professional stereotype that a professional school is looking to admit. The problem of course is that years of pretending tend to produce the very person you are pretending to be. At the very least, the “uniqueness” of you will not be fully expressed. That will be your loss, and ours as well.

Meet Your New Apple Virtual Personal Assistant: SIRI Interview.

2011-10-22T08:44:00.001-07:00

David v. Goliath: Going Outside the "Rules" to Find a Winning Strategy.

2011-10-20T10:50:00.001-07:00

ANNALS OF INNOVATION

When underdogs break the rules.

by Malcolm GladwellMAY 11, 2009

A non-stop full-court press gives weak basketball teams a chance against far stronger teams. Why have so few adopted it?

When Vivek Ranadivé decided to coach his daughter Anjali’s basketball team, he settled on two principles. The first was that he would never raise his voice. This was National Junior Basketball—the Little League of basketball. The team was made up mostly of twelve-year-olds, and twelve-year-olds, he knew from experience, did not respond well to shouting. He would conduct business on the basketball court, he decided, the same way he conducted business at his software firm. He would speak calmly and softly, and convince the girls of the wisdom of his approach with appeals to reason and common sense.

The second principle was more important. Ranadivé was puzzled by the way Americans played basketball. He is from Mumbai. He grew up with cricket and soccer. He would never forget the first time he saw a basketball game. He thought it was mindless. Team A would score and then immediately retreat to its own end of the court. Team B would inbound the ball and dribble it into Team A’s end, where Team A was patiently waiting. Then the process would reverse itself. A basketball court was ninety-four feet long. But most of the time a team defended only about twenty-four feet of that, conceding the other seventy feet. Occasionally, teams would play a full-court press—that is, they would contest their opponent’s attempt to advance the ball up the court. But they would do it for only a few minutes at a time. It was as if there were a kind of conspiracy in the basketball world about the way the game ought to be played, and Ranadivé thought that that conspiracy had the effect of widening the gap between good teams and weak teams. Good teams, after all, had players who were tall and could dribble and shoot well; they could crisply execute their carefully prepared plays in their opponent’s end. Why, then, did weak teams play in a way that made it easy for good teams to do the very things that made them so good?

Ranadivé looked at his girls. Morgan and Julia were serious basketball players. But Nicky, Angela, Dani, Holly, Annika, and his own daughter, Anjali, had never played the game before. They weren’t all that tall. They couldn’t shoot. They weren’t particularly adept at dribbling. They were not the sort who played pickup games at the playground every evening. Most of them were, as Ranadivé says, “little blond girls” from Menlo Park and Redwood City, the heart of Silicon Valley. These were the daughters of computer programmers and people with graduate degrees. They worked on science projects, and read books, and went on ski vacations with their parents, and dreamed about growing up to be marine biologists. Ranadivé knew that if they played the conventional way—if they let their opponents dribble the ball up the court without opposition—they would almost certainly lose to the girls for whom basketball was a passion. Ranadivé came to America as a seventeen-year-old, with fifty dollars in his pocket. He was not one to accept losing easily. His second principle, then, was that his team would play a real full-court press, every game, all the time. The team ended up at the national championships. “It was really random,” Anjali Ranadivé said. “I mean, my father had never played basketball before.”

David’s victory over Goliath, in the Biblical account, is held to be an anomaly. It was not. Davids win all the time. The political scientist Ivan Arreguín-Toft recently looked at every war fought in the past two hundred years between strong and weak combatants. The Goliaths, he found, won in 71.5 per cent of the cases. That is a remarkable fact. Arreguín-Toft was analyzing conflicts in which one side was at least ten times as powerful—in terms of armed might and population—as its opponent, and even in those lopsided contests the underdog won almost a third of the time.

In the Biblical story of David and Goliath, David initially put on a coat of mail and a brass helmet and girded himself with a sword: he prepared to wage a conventional battle of swords against Goliath. But then he stopped. “I cannot walk in these, for I am unused to it,” he said (in Robert Alter’s translation), and picked up those five smooth stones. What happened, Arreguín-Toft wondered, when the underdogs likewise acknowledged their weakness and chose an unconventional strategy? He went back and re-analyzed his data. In those cases, David’s winning percentage went from 28.5 to 63.6. When underdogs choose not to play by Goliath’s rules, they win, Arreguín-Toft concluded, “even when everything we think we know about power says they shouldn’t.”

Consider the way T. E. Lawrence (or, as he is better known, Lawrence of Arabia) led the revolt against the Ottoman Army occupying Arabia near the end of the First World War. The British were helping the Arabs in their uprising, and the initial focus was Medina, the city at the end of a long railroad that the Turks had built, running south from Damascus and down through the Hejaz desert. The Turks had amassed a large force in Medina, and the British leadership wanted Lawrence to gather the Arabs and destroy the Turkish garrison there, before the Turks could threaten the entire region.

But when Lawrence looked at his ragtag band of Bedouin fighters he realized that a direct attack on Medina would never succeed. And why did taking the city matter, anyway? The Turks sat in Medina “on the defensive, immobile.” There were so many of them, consuming so much food and fuel and water, that they could hardly make a major move across the desert. Instead of attacking the Turks at their point of strength, Lawrence reasoned, he ought to attack them where they were weak—along the vast, largely unguarded length of railway line that was their connection to Damascus. Instead of focussing his attention on Medina, he should wage war over the broadest territory possible.

The Bedouins under Lawrence’s command were not, in conventional terms, skilled troops. They were nomads. Sir Reginald Wingate, one of the British commanders in the region, called them “an untrained rabble, most of whom have never fired a rifle.” But they were tough and they were mobile. The typical Bedouin soldier carried no more than a rifle, a hundred rounds of ammunition, forty-five pounds of flour, and a pint of drinking water, which meant that he could travel as much as a hundred and ten miles a day across the desert, even in summer. “Our cards were speed and time, not hitting power,” Lawrence wrote. “Our largest available resources were the tribesmen, men quite unused to formal warfare, whose assets were movement, endurance, individual intelligence, knowledge of the country, courage.” The eighteenth-century general Maurice de Saxe famously said that the art of war was about legs, not arms, and Lawrence’s troops were all legs. In one typical stretch, in the spring of 1917, his men dynamited sixty rails and cut a telegraph line at Buair on March 24th, sabotaged a train and twenty-five rails at Abu al-Naam on March 25th, dynamited fifteen rails and cut a telegraph line at Istabl Antar on March 27th, raided a Turkish garrison and derailed a train on March 29th, returned to Buair and sabotaged the railway line again on March 31st, dynamited eleven rails at Hediah on April 3rd, raided the train line in the area of Wadi Dhaiji on April 4th and 5th, and attacked twice on April 6th.

Lawrence’s masterstroke was an assault on the port town of Aqaba. The Turks expected an attack from British ships patrolling the waters of the Gulf of Aqaba to the west. Lawrence decided to attack from the east instead, coming at the city from the unprotected desert, and to do that he led his men on an audacious, six-hundred-mile loop—up from the Hejaz, north into the Syrian desert, and then back down toward Aqaba. This was in summer, through some of the most inhospitable land in the Middle East, and Lawrence tacked on a side trip to the outskirts of Damascus, in order to mislead the Turks about his intentions. “This year the valley seemed creeping with horned vipers and puff-adders, cobras and black snakes,” Lawrence writes in “The Seven Pillars of Wisdom” of one stage in the journey:

We could not lightly draw water after dark, for there were snakes swimming in the pools or clustering in knots around their brinks. Twice puff-adders came twisting into the alert ring of our debating coffee-circle. Three of our men died of bites; four recovered after great fear and pain, and a swelling of the poisoned limb. Howeitat treatment was to bind up the part with snake-skin plaster and read chapters of the Koran to the sufferer until he died.

When they finally arrived at Aqaba, Lawrence’s band of several hundred warriors killed or captured twelve hundred Turks, and lost only two men. The Turks simply did not think that their opponent would be mad enough to come at them from the desert. This was Lawrence’s great insight. David can beat Goliath by substituting effort for ability—and substituting effort for ability turns out to be a winning formula for underdogs in all walks of life, including little blond-haired girls on the basketball court.

Vivek Ranadivé is an elegant man, slender and fine-boned, with impeccable manners and a languorous walk. His father was a pilot who was jailed by Indira Gandhi, he says, because he wouldn’t stop challenging the safety of India’s planes. Ranadivé went to M.I.T., because he saw a documentary on the school and decided that it was perfect for him. This was in the nineteen-seventies, when going abroad for undergraduate study required the Indian government to authorize the release of foreign currency, and Ranadivé camped outside the office of the governor of the Reserve Bank of India until he got his way. The Ranadivés are relentless.

In 1985, Ranadivé founded a software company in Silicon Valley devoted to what in the computer world is known as “real time” processing. If a businessman waits until the end of the month to collect and count his receipts, he’s “batch processing.” There is a gap between the events in the company—sales—and his understanding of those events. Wall Street used to be the same way. The information on which a trader based his decisions was scattered across a number of databases. The trader would collect information from here and there, collate and analyze it, and then make a trade. What Ranadivé’s company, tibco, did was to consolidate those databases into one stream, so that the trader could collect all the data he wanted instantaneously. Batch processing was replaced by real-time processing. Today, tibco’s software powers most of the trading floors on Wall Street.

Ranadivé views this move from batch to real time as a sort of holy mission. The shift, to his mind, is one of kind, not just of degree. “We’ve been working with some airlines,” he said. “You know, when you get on a plane and your bag doesn’t, they actually know right away that it’s not there. But no one tells you, and a big part of that is that they don’t have all their information in one place. There are passenger systems that know where the passenger is. There are aircraft and maintenance systems that track where the plane is and what kind of shape it’s in. Then, there are baggage systems and ticketing systems—and they’re all separate. So you land, you wait at the baggage terminal, and it doesn’t show up.” Everything bad that happens in that scenario, Ranadivé maintains, happens because of the lag between the event (the luggage doesn’t make it onto the plane) and the response (the airline tells you that your luggage didn’t make the plane). The lag is why you’re angry. The lag is why you had to wait, fruitlessly, at baggage claim. The lag is why you vow never to fly that airline again. Put all the databases together, and there’s no lag. “What we can do is send you a text message the moment we know your bag didn’t make it,” Ranadivé said, “telling you we’ll ship it to your house.”

A few years ago, Ranadivé wrote a paper arguing that even the Federal Reserve ought to make its decisions in real time—not once every month or two. “Everything in the world is now real time,” he said. “So when a certain type of shoe isn’t selling at your corner shop, it’s not six months before the guy in China finds out. It’s almost instantaneous, thanks to my software. The world runs in real time, but government runs in batch. Every few months, it adjusts. Its mission is to keep the temperature comfortable in the economy, and, if you were to do things the government’s way in your house, then every few months you’d turn the heater either on or off, overheating or underheating your house.” Ranadivé argued that we ought to put the economic data that the Fed uses into a big stream, and write a computer program that sifts through those data, the moment they are collected, and make immediate, incremental adjustments to interest rates and the money supply. “It can all be automated,” he said. “Look, we’ve had only one soft landing since the Second World War. Basically, we’ve got it wrong every single time.”

You can imagine what someone like Alan Greenspan or Ben Bernanke might say about that idea. Such people are powerfully invested in the notion of the Fed as a Solomonic body: that pause of five or eight weeks between economic adjustments seems central to the process of deliberation. To Ranadivé, though, “deliberation” just prettifies the difficulties created by lag. The Fed has to deliberate because it’s several weeks behind, the same way the airline has to bow and scrape and apologize because it waited forty-five minutes to tell you something that it could have told you the instant you stepped off the plane.

Is it any wonder that Ranadivé looked at the way basketball was played and found it mindless? A professional basketball game was forty-eight minutes long, divided up into alternating possessions of roughly twenty seconds: back and forth, back and forth. But a good half of each twenty-second increment was typically taken up with preliminaries and formalities. The point guard dribbled the ball up the court. He stood above the top of the key, about twenty-four feet from the opposing team’s basket. He called out a play that the team had choreographed a hundred times in practice. It was only then that the defending team sprang into action, actively contesting each pass and shot. Actual basketball took up only half of that twenty-second interval, so that a game’s real length was not forty-eight minutes but something closer to twenty-four minutes—and that twenty-four minutes of activity took place within a narrowly circumscribed area. It was as formal and as convention-bound as an eighteenth-century quadrille. The supporters of that dance said that the defensive players had to run back to their own end, in order to compose themselves for the arrival of the other team. But the reason they had to compose themselves, surely, was that by retreating they allowed the offense to execute a play that it had practiced to perfection. Basketball was batch!

Insurgents, though, operate in real time. Lawrence hit the Turks, in that stretch in the spring of 1917, nearly every day, because he knew that the more he accelerated the pace of combat the more the war became a battle of endurance—and endurance battles favor the insurgent. “And it happened as the Philistine arose and was drawing near David that David hastened and ran out from the lines toward the Philistine,” the Bible says. “And he reached his hand into the pouch and took from there a stone and slung it and struck the Philistine in his forehead.” The second sentence—the slingshot part—is what made David famous. But the first sentence matters just as much. David broke the rhythm of the encounter. He speeded it up. “The sudden astonishment when David sprints forward must have frozen Goliath, making him a better target,” the poet and critic Robert Pinsky writes in “The Life of David.” Pinsky calls David a “point guard ready to flick the basketball here or there.” David pressed. That’s what Davids do when they want to beat Goliaths.

Ranadivé’s basketball team played in the National Junior Basketball seventh-and-eighth-grade division, representing Redwood City. The girls practiced at Paye’s Place, a gym in nearby San Carlos. Because Ranadivé had never played basketball, he recruited a series of experts to help him. The first was Roger Craig, the former all-pro running back for the San Francisco 49ers, who is also tibco’s director of business development. As a football player, Craig was legendary for the off-season hill workouts he put himself through. Most of his N.F.L. teammates are now hobbling around golf courses. He has run seven marathons. After Craig signed on, he recruited his daughter Rometra, who played Division I basketball at Duke and U.S.C. Rometra was the kind of person you assigned to guard your opponent’s best player in order to shut her down. The girls loved Rometra. “She has always been like my big sister,” Anjali Ranadivé said. “It was so awesome to have her along.”

Redwood City’s strategy was built around the two deadlines that all basketball teams must meet in order to advance the ball. The first is the inbounds pass. When one team scores, a player from the other team takes the ball out of bounds and has five seconds to pass it to a teammate on the court. If that deadline is missed, the ball goes to the other team. Usually, that’s not an issue, because teams don’t contest the inbounds pass. They run back to their own end. Redwood City did not. Each girl on the team closely shadowed her counterpart. When some teams play the press, the defender plays behind the offensive player she’s guarding, to impede her once she catches the ball. The Redwood City girls, by contrast, played in front of their opponents, to prevent them from catching the inbounds pass in the first place. And they didn’t guard the player throwing the ball in. Why bother? Ranadivé used that extra player as a floater, who could serve as a second defender against the other team’s best player. “Think about football,” Ranadivé said. “The quarterback can run with the ball. He has the whole field to throw to, and it’s still damned difficult to complete a pass.” Basketball was harder. A smaller court. A five-second deadline. A heavier, bigger ball. As often as not, the teams Redwood City was playing against simply couldn’t make the inbounds pass within the five-second limit. Or the inbounding player, panicked by the thought that her five seconds were about to be up, would throw the ball away. Or her pass would be intercepted by one of the Redwood City players. Ranadivé’s girls were maniacal.

The second deadline requires a team to advance the ball across mid-court, into its opponent’s end, within ten seconds, and if Redwood City’s opponents met the first deadline the girls would turn their attention to the second. They would descend on the girl who caught the inbounds pass and “trap” her. Anjali was the designated trapper. She’d sprint over and double-team the dribbler, stretching her long arms high and wide. Maybe she’d steal the ball. Maybe the other player would throw it away in a panic—or get bottled up and stalled, so that the ref would end up blowing the whistle. “When we first started out, no one knew how to play defense or anything,” Anjali said. “So my dad said the whole game long, ‘Your job is to guard someone and make sure they never get the ball on inbounds plays.’ It’s the best feeling in the world to steal the ball from someone. We would press and steal, and do that over and over again. It made people so nervous. There were teams that were a lot better than us, that had been playing a long time, and we would beat them.”

The Redwood City players would jump ahead 4–0, 6–0, 8–0, 12–0. One time, they led 25–0. Because they typically got the ball underneath their opponent’s basket, they rarely had to take low-percentage, long-range shots that required skill and practice. They shot layups. In one of the few games that Redwood City lost that year, only four of the team’s players showed up. They pressed anyway. Why not? They lost by three points.

“What that defense did for us is that we could hide our weaknesses,” Rometra Craig said. She helped out once Redwood City advanced to the regional championships. “We could hide the fact that we didn’t have good outside shooters. We could hide the fact that we didn’t have the tallest lineup, because as long as we played hard on defense we were getting steals and getting easy layups. I was honest with the girls. I told them, ‘We’re not the best basketball team out there.’ But they understood their roles.” A twelve-year-old girl would go to war for Rometra. “They were awesome,” she said.

Lawrence attacked the Turks where they were weak—the railroad—and not where they were strong, Medina. Redwood City attacked the inbounds pass, the point in a game where a great team is as vulnerable as a weak one. Lawrence extended the battlefield over as large an area as possible. So did the girls of Redwood City. They defended all ninety-four feet. The full-court press is legs, not arms. It supplants ability with effort. It is basketball for those “quite unused to formal warfare, whose assets were movement, endurance, individual intelligence . . . courage.”

“It’s an exhausting strategy,” Roger Craig said. He and Ranadivé were in a tibco conference room, reminiscing about their dream season. Ranadivé was at the whiteboard, diagramming the intricacies of the Redwood City press. Craig was sitting at the table.

“My girls had to be more fit than the others,” Ranadivé said.

“He used to make them run,” Craig said, nodding approvingly.

“We followed soccer strategy in practice,” Ranadivé said. “I would make them run and run and run. I couldn’t teach them skills in that short period of time, and so all we did was make sure they were fit and had some basic understanding of the game. That’s why attitude plays such a big role in this, because you’re going to get tired.” He turned to Craig. “What was our cheer again?”

The two men thought for a moment, then shouted out happily, in unison, “One, two, three, attitude!”

That was it! The whole Redwood City philosophy was based on a willingness to try harder than anyone else.

“One time, some new girls joined the team,” Ranadivé said, “and so in the first practice I had I was telling them, ‘Look, this is what we’re going to do,’ and I showed them. I said, ‘It’s all about attitude.’ And there was this one new girl on the team, and I was worried that she wouldn’t get the whole attitude thing. Then we did the cheer and she said, ‘No, no, it’s not One, two three, attitude. It’s One, two, three, attitude hah ’ ”—at which point Ranadivé and Craig burst out laughing.

In January of 1971, the Fordham University Rams played a basketball game against the University of Massachusetts Redmen. The game was in Amherst, at the legendary arena known as the Cage, where the Redmen hadn’t lost since December of 1969. Their record was 11–1. The Redmen’s star was none other than Julius Erving—Dr. J. The UMass team was very, very good. Fordham, by contrast, was a team of scrappy kids from the Bronx and Brooklyn. Their center had torn up his knee the first week of the season, which meant that their tallest player was six feet five. Their starting forward—and forwards are typically almost as tall as centers—was Charlie Yelverton, who was six feet two. But from the opening buzzer the Rams launched a full-court press, and never let up. “We jumped out to a thirteen-to-six lead, and it was a war the rest of the way,” Digger Phelps, the Fordham coach at the time, recalls. “These were tough city kids. We played you ninety-four feet. We knew that sooner or later we were going to make you crack.” Phelps sent in one indefatigable Irish or Italian kid from the Bronx after another to guard Erving, and, one by one, the indefatigable Irish and Italian kids fouled out. None of them were as good as Erving. It didn’t matter. Fordham won, 87–79.

In the world of basketball, there is one story after another like this about legendary games where David used the full-court press to beat Goliath. Yet the puzzle of the press is that it has never become popular. People look at upsets like Fordham over UMass and call them flukes. Basketball sages point out that the press can be beaten by a well-coached team with adept ball handlers and astute passers—and that is true. Ranadivé readily admitted that all an opposing team had to do to beat Redwood City was press back: the girls were not good enough to handle their own medicine. Playing insurgent basketball did not guarantee victory. It was simply the best chance an underdog had of beating Goliath. If Fordham had played UMass the conventional way, it would have lost by thirty points. And yet somehow that lesson has escaped the basketball establishment.

What did Digger Phelps do, the season after his stunning upset of UMass? He never used the full-court press the same way again. The UMass coach, Jack Leaman, was humbled in his own gym by a bunch of street kids. Did he learn from his defeat and use the press himself the next time he had a team of underdogs? He did not.

The only person who seemed to have absorbed the lessons of that game was a skinny little guard on the UMass freshman team named Rick Pitino. He didn’t play that day. He watched, and his eyes grew wide. Even now, thirty-eight years later, he can name, from memory, nearly every player on the Fordham team: Yelverton, Sullivan, Mainor, Charles, Zambetti. “They came in with the most unbelievable pressing team I’d ever seen,” Pitino said. “Five guys between six feet five and six feet. It was unbelievable how they covered ground. I studied it. There is no way they should have beaten us. Nobody beat us at the Cage.”

Pitino became the head coach at Boston University in 1978, when he was twenty-five years old, and used the press to take the school to its first N.C.A.A. tournament appearance in twenty-four years. At his next head-coaching stop, Providence College, Pitino took over a team that had gone 11–20 the year before. The players were short and almost entirely devoid of talent—a carbon copy of the Fordham Rams. They pressed, and ended up one game away from playing for the national championship. At the University of Kentucky, in the mid-nineteen-nineties, Pitino took his team to the Final Four three times—and won a national championship—with full-court pressure, and then rode the full-court press back to the Final Four in 2005, as the coach at the University of Louisville. This year, his Louisville team entered the N.C.A.A. tournament ranked No. 1 in the land. College coaches of Pitino’s calibre typically have had numerous players who have gone on to be bona-fide all-stars at the professional level. In his many years of coaching, Pitino has had one, Antoine Walker. It doesn’t matter. Every year, he racks up more and more victories.

“The greatest example of the press I’ve ever coached was my Kentucky team in ’96, when we played L.S.U.,” Pitino said. He was at the athletic building at the University of Louisville, in a small room filled with television screens, where he watches tapes of opponents’ games. “Do we have that tape?” Pitino called out to an assistant. He pulled a chair up close to one of the monitors. The game began with Kentucky stealing the ball from L.S.U., deep in L.S.U.’s end. Immediately, the ball was passed to Antoine Walker, who cut to the basket for a layup. L.S.U. got the ball back. Kentucky stole it again. Another easy basket by Walker. “Walker had almost thirty points at halftime,” Pitino said. “He dunked it almost every time. When we steal, he just runs to the basket.” The Kentucky players were lightning quick and long-armed, and swarmed around the L.S.U. players, arms flailing. It was mayhem. Five minutes in, it was clear that L.S.U. was panicking.

Pitino trains his players to look for what he calls the “rush state” in their opponents—that moment when the player with the ball is shaken out of his tempo—and L.S.U. could not find a way to get out of the rush state. “See if you find one play that L.S.U. managed to run,” Pitino said. You couldn’t. The L.S.U. players struggled to get the ball inbounds, and, if they did that, they struggled to get the ball over mid-court, and on those occasions when they managed both those things they were too overwhelmed and exhausted to execute their offense the way they had been trained to. “We had eighty-six points at halftime,” Pitino went on—eighty-six points being, of course, what college basketball teams typically score in an entire game. “And I think we’d forced twenty-three turnovers at halftime,” twenty-three turnovers being what college basketball teams might force in two games. “I love watching this,” Pitino said. He had a faraway look in his eyes. “Every day, you dream about getting a team like this again.” So why are there no more than a handful of college teams who use the full-court press the way Pitino does?

Arreguín-Toft found the same puzzling pattern. When an underdog fought like David, he usually won. But most of the time underdogs didn’t fight like David. Of the two hundred and two lopsided conflicts in Arreguín-Toft’s database, the underdog chose to go toe to toe with Goliath the conventional way a hundred and fifty-two times—and lost a hundred and nineteen times. In 1809, the Peruvians fought the Spanish straight up and lost; in 1816, the Georgians fought the Russians straight up and lost; in 1817, the Pindaris fought the British straight up and lost; in the Kandyan rebellion of 1817, the Sri Lankans fought the British straight up and lost; in 1823, the Burmese chose to fight the British straight up and lost. The list of failures was endless. In the nineteen-forties, the Communist insurgency in Vietnam bedevilled the French until, in 1951, the Viet Minh strategist Vo Nguyen Giap switched to conventional warfare—and promptly suffered a series of defeats. George Washington did the same in the American Revolution, abandoning the guerrilla tactics that had served the colonists so well in the conflict’s early stages. “As quickly as he could,” William Polk writes in “Violent Politics,” a history of unconventional warfare, Washington “devoted his energies to creating a British-type army, the Continental Line. As a result, he was defeated time after time and almost lost the war.”

It makes no sense, unless you think back to that Kentucky-L.S.U. game and to Lawrence’s long march across the desert to Aqaba. It is easier to dress soldiers in bright uniforms and have them march to the sound of a fife-and-drum corps than it is to have them ride six hundred miles through the desert on the back of a camel. It is easier to retreat and compose yourself after every score than swarm about, arms flailing. We tell ourselves that skill is the precious resource and effort is the commodity. It’s the other way around. Effort can trump ability—legs, in Saxe’s formulation, can overpower arms—because relentless effort is in fact something rarer than the ability to engage in some finely tuned act of motor coördination.

“I have so many coaches come in every year to learn the press,” Pitino said. Louisville was the Mecca for all those Davids trying to learn how to beat Goliaths. “Then they e-mail me. They tell me they can’t do it. They don’t know if they have the bench. They don’t know if the players can last.” Pitino shook his head. “We practice every day for two hours straight,” he went on. “The players are moving almost ninety-eight per cent of the practice. We spend very little time talking. When we make our corrections”—that is, when Pitino and his coaches stop play to give instruction—“they are seven-second corrections, so that our heart rate never rests. We are always working.” Seven seconds! The coaches who came to Louisville sat in the stands and watched that ceaseless activity and despaired. The prospect of playing by David’s rules was too daunting. They would rather lose.

In 1981, a computer scientist from Stanford University named Doug Lenat entered the Traveller Trillion Credit Squadron tournament, in San Mateo, California. It was a war game. The contestants had been given several volumes of rules, well beforehand, and had been asked to design their own fleet of warships with a mythical budget of a trillion dollars. The fleets then squared off against one another in the course of a weekend. “Imagine this enormous auditorium area with tables, and at each table people are paired off,” Lenat said. “The winners go on and advance. The losers get eliminated, and the field gets smaller and smaller, and the audience gets larger and larger.”

Lenat had developed an artificial-intelligence program that he called Eurisko, and he decided to feed his program the rules of the tournament. Lenat did not give Eurisko any advice or steer the program in any particular strategic direction. He was not a war-gamer. He simply let Eurisko figure things out for itself. For about a month, for ten hours every night on a hundred computers at Xerox parc, in Palo Alto, Eurisko ground away at the problem, until it came out with an answer. Most teams fielded some version of a traditional naval fleet—an array of ships of various sizes, each well defended against enemy attack. Eurisko thought differently. “The program came up with a strategy of spending the trillion on an astronomical number of small ships like P.T. boats, with powerful weapons but absolutely no defense and no mobility,” Lenat said. “They just sat there. Basically, if they were hit once they would sink. And what happened is that the enemy would take its shots, and every one of those shots would sink our ships. But it didn’t matter, because we had so many.” Lenat won the tournament in a runaway.

The next year, Lenat entered once more, only this time the rules had changed. Fleets could no longer just sit there. Now one of the criteria of success in battle was fleet “agility.” Eurisko went back to work. “What Eurisko did was say that if any of our ships got damaged it would sink itself—and that would raise fleet agility back up again,” Lenat said. Eurisko won again.

Eurisko was an underdog. The other gamers were people steeped in military strategy and history. They were the sort who could tell you how Wellington had outfoxed Napoleon at Waterloo, or what exactly happened at Antietam. They had been raised on Dungeons and Dragons. They were insiders. Eurisko, on the other hand, knew nothing but the rule book. It had no common sense. As Lenat points out, a human being understands the meaning of the sentences “Johnny robbed a bank. He is now serving twenty years in prison,” but Eurisko could not, because as a computer it was perfectly literal; it could not fill in the missing step—“Johnny was caught, tried, and convicted.” Eurisko was an outsider. But it was precisely that outsiderness that led to Eurisko’s victory: not knowing the conventions of the game turned out to be an advantage.

“Eurisko was exposing the fact that any finite set of rules is going to be a very incomplete approximation of reality,” Lenat explained. “What the other entrants were doing was filling in the holes in the rules with real-world, realistic answers. But Eurisko didn’t have that kind of preconception, partly because it didn’t know enough about the world.” So it found solutions that were, as Lenat freely admits, “socially horrifying”: send a thousand defenseless and immobile ships into battle; sink your own ships the moment they get damaged.

This is the second half of the insurgent’s creed. Insurgents work harder than Goliath. But their other advantage is that they will do what is “socially horrifying”—they will challenge the conventions about how battles are supposed to be fought. All the things that distinguish the ideal basketball player are acts of skill and coördination. When the game becomes about effort over ability, it becomes unrecognizable—a shocking mixture of broken plays and flailing limbs and usually competent players panicking and throwing the ball out of bounds. You have to be outside the establishment—a foreigner new to the game or a skinny kid from New York at the end of the bench—to have the audacity to play it that way. George Washington couldn’t do it. His dream, before the war, was to be a British Army officer, finely turned out in a red coat and brass buttons. He found the guerrillas who had served the American Revolution so well to be “an exceeding dirty and nasty people.” He couldn’t fight the establishment, because he was the establishment.

T. E. Lawrence, by contrast, was the farthest thing from a proper British Army officer. He did not graduate with honors from Sandhurst. He was an archeologist by trade, a dreamy poet. He wore sandals and full Bedouin dress when he went to see his military superiors. He spoke Arabic like a native, and handled a camel as if he had been riding one all his life. And David, let’s not forget, was a shepherd. He came at Goliath with a slingshot and staff because those were the tools of his trade. He didn’t know that duels with Philistines were supposed to proceed formally, with the crossing of swords. “When the lion or the bear would come and carry off a sheep from the herd, I would go out after him and strike him down and rescue it from his clutches,” David explained to Saul. He brought a shepherd’s rules to the battlefield.

The price that the outsider pays for being so heedless of custom is, of course, the disapproval of the insider. Why did the Ivy League schools of the nineteen-twenties limit the admission of Jewish immigrants? Because they were the establishment and the Jews were the insurgents, scrambling and pressing and playing by immigrant rules that must have seemed to the Wasp élite of the time to be socially horrifying. “Their accomplishment is well over a hundred per cent of their ability on account of their tremendous energy and ambition,” the dean of Columbia College said of the insurgents from Brooklyn, the Bronx, and the Lower East Side. He wasn’t being complimentary. Goliath does not simply dwarf David. He brings the full force of social convention against him; he has contempt for David.

“In the beginning, everyone laughed at our fleet,” Lenat said. “It was really embarrassing. People felt sorry for us. But somewhere around the third round they stopped laughing, and some time around the fourth round they started complaining to the judges. When we won again, some people got very angry, and the tournament directors basically said that it was not really in the spirit of the tournament to have these weird computer-designed fleets winning. They said that if we entered again they would stop having the tournament. I decided the best thing to do was to graciously bow out.”

It isn’t surprising that the tournament directors found Eurisko’s strategies beyond the pale. It’s wrong to sink your own ships, they believed. And they were right. But let’s remember who made that rule: Goliath. And let’s remember why Goliath made that rule: when the world has to play on Goliath’s terms, Goliath wins.

The trouble for Redwood City started early in the regular season. The opposing coaches began to get angry. There was a sense that Redwood City wasn’t playing fair—that it wasn’t right to use the full-court press against twelve-year-old girls, who were just beginning to grasp the rudiments of the game. The point of basketball, the dissenting chorus said, was to learn basketball skills. Of course, you could as easily argue that in playing the press a twelve-year-old girl learned something much more valuable—that effort can trump ability and that conventions are made to be challenged. But the coaches on the other side of Redwood City’s lopsided scores were disinclined to be so philosophical.

“There was one guy who wanted to have a fight with me in the parking lot,” Ranadivé said. “He was this big guy. He obviously played football and basketball himself, and he saw that skinny, foreign guy beating him at his own game. He wanted to beat me up.”

Roger Craig says that he was sometimes startled by what he saw. “The other coaches would be screaming at their girls, humiliating them, shouting at them. They would say to the refs—‘That’s a foul! That’s a foul!’ But we weren’t fouling. We were just playing aggressive defense.”

“My girls were all blond-haired white girls,” Ranadivé said. “My daughter is the closest we have to a black girl, because she’s half-Indian. One time, we were playing this all-black team from East San Jose. They had been playing for years. These were born-with-a-basketball girls. We were just crushing them. We were up something like twenty to zero. We wouldn’t even let them inbound the ball, and the coach got so mad that he took a chair and threw it. He started screaming at his girls, and of course the more you scream at girls that age the more nervous they get.” Ranadivé shook his head: never, ever raise your voice. “Finally, the ref physically threw him out of the building. I was afraid. I think he couldn’t stand it because here were all these blond-haired girls who were clearly inferior players, and we were killing them.”

At the nationals, the Redwood City girls won their first two games. In the third round, their opponents were from somewhere deep in Orange County. Redwood City had to play them on their own court, and the opponents supplied their own referee as well. The game was at eight o’clock in the morning. The Redwood City players left their hotel at six, to beat the traffic. It was downhill from there. The referee did not believe in “One, two, three, attitude hah.” He didn’t think that playing to deny the inbounds pass was basketball. He began calling one foul after another.

“They were touch fouls,” Craig said. Ticky-tacky stuff. The memory was painful.

“My girls didn’t understand,” Ranadivé said. “The ref called something like four times as many fouls on us as on the other team.”

“People were booing,” Craig said. “It was bad.”

“A two-to-one ratio is understandable, but a ratio of four to one?” Ranadivé shook his head.

“One girl fouled out.”

“We didn’t get blown out. There was still a chance to win. But . . .”

Ranadivé called the press off. He had to. The Redwood City players retreated to their own end, and passively watched as their opponents advanced down the court. They did not run. They paused and deliberated between each possession. They played basketball the way basketball is supposed to be played, and they lost—but not before making Goliath wonder whether he was a giant, after all. ♦

ILLUSTRATION: ZOHAR LAZAR

"Great minds discuss ideas. Average minds discuss events. Small minds discuss people." Eleanor Roosevelt

2011-10-19T08:21:00.001-07:00

Eleanor Roosevelt regarded the Universal Declaration as her greatest accomplishment.

Eleanor Roosevelt

"Where, after all, do universal human rights begin? In small places, close to home - so close and so small that they cannot be seen on any maps of the world. Yet they are the world of the individual person; the neighborhood he lives in; the school or college he attends; the factory, farm, or office where he works. Such are the places where every man, woman, and child seeks equal justice, equal opportunity, equal dignity without discrimination. Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world."

Eleanor Roosevelt

Although she had already won international respect and admiration in her role as First Lady to President Franklin D. Roosevelt, Eleanor Roosevelt’s work on the Universal Declaration of Human Rights would become her greatest legacy. She was without doubt, the most influential member of the UN’s Commission on Human Rights.

Unlike most other members of the Commission, Mrs. Roosevelt was neither a scholar nor an expert on international law. Her enthusiasm for her work at the United Nations was rooted in her humanitarian convictions and her steady faith in human dignity and worth. Although she often joked that she was out of place among so many academics and jurists, her intellect and compassion were great assets, and proved to be of crucial importance in the composition of a direct and straightforward Universal Declaration of Human Rights.

With characteristic modesty, Eleanor Roosevelt considered her position on the Commission to be one of ambassador for the common man and woman: "I used to tell my husband that, if he could make me understand something, it would be clear to all other people in the country, and perhaps that will be my real value on this drafting commission!"

The delegates to the Commission on Human Rights elected Eleanor Roosevelt their Chairperson. Like so many individuals throughout the world, the delegates recognized Eleanor Roosevelt’s unparalleled humanitarian convictions. During her tenure in the White House she had assisted her physically disabled husband in political matters, serving as his "eyes and ears," traveling throughout the U.S. to gauge the mood of the people. Through this work, she became widely esteemed as a person who both understood and felt the plight of the common man and woman.

Even prior to her years in the White House, Eleanor Roosevelt was actively engaged in politics and advocacy on the local and national level. She was an astute, accomplished, and intelligent woman, thoroughly familiar with the world of political negotiation. Just as she had served as a liaison of sorts between the President and his constituency, so she acted as a liaison between the Commission and the hopes of humanity. She may have lacked certain factual knowledge, but she had a keen sense of what the average person expected out of life - what men, women and children needed to flourish as individuals.

Her common sense approach, constant optimism and boundless energy were integral to the smooth facilitation of meetings. On any given issue, her colloquial style and good humor were engaged not only to win over the majority of delegates who generally supported a particular U.S. position, but to confound those who opposed it. A New York Times reporter who was present at the Commission meetings wrote of the power Mrs. Roosevelt’s personality had over certain unreasonable diplomats:

The Russians seem to have met their match in Mrs. Roosevelt. The proceedings sometimes turn into a long vitriolic attack on the U.S. when she is not present. These attacks, however, generally denigrate into flurries in the face of her calm and undisturbed but often pointed replies.

If Mrs. Roosevelt made one sort of impression with her familiar style, she made another with her commitment to produce a universally accepted, "living" declaration. She was recognized as a tireless worker, stating triumphantly at one point, "I drive hard and when I get home I will be tired! The men on the Commission will be also!" Many of the delegates found this aspect of her personality less agreeable than her charm. One went so far as to suggest that his own human rights were violated by the length of the meetings!

Envisioning a declaration with enduring principles that would be perpetually recognized by all nations, she was a strong advocate of true universality within the Declaration. She was adamant that different conceptions of human rights be deliberated during the UDHR’s composition:

We wanted as many nations as possible to accept the fact that men, for one reason or another, were born free and equal in dignity and rights, that they were endowed with reason and conscience, and should act toward one another in a spirit of brotherhood. The way to do that was to find words that everyone would accept.

Eleanor Roosevelt’s personal sense of accomplishment with the finished Declaration was unparalleled in her life. Her speech before the General Assembly as she submitted the Declaration for review demonstrates the historical significance she placed upon its adoption:

We stand today at the threshold of a great event both in the life of the United Nations and in the life of mankind. This declaration may well become the international Magna Carta for all men everywhere. We hope its proclamation by the General Assembly will be an event comparable to the proclamation in 1789 [of the French Declaration of the Rights of Man], the adoption of the Bill of Rights by the people of the U.S., and the adoption of comparable declarations at different times in other countries...

Eleanor Roosevelt’s concern for humanity made her the driving force behind the Universal Declaration of Human Rights. Her leadership of the Commission on Human Rights led to the composition of a Declaration that has endured as a universally accepted standard of achievement for all nations. As our respect for and understanding of the Universal Declaration has grown, so too has our gratitude and admiration for this modest woman who passionately pursued what she imagined would become a cornerstone in the struggle for human rights and fundamental freedoms for everyone - everywhere.

She lived her life in the center of what many would regard the Twentieth Century’s most consequential events, the Great Depression, World War II, the establishment of the United Nations and the adoption of the Universal Declaration of Human Rights. She confronted both opportunity and adversity with a sense of optimism and determination. A former Democratic presidential candidate, Adlai Stevenson, once said of Eleanor Roosevelt, "She would rather light a candle than curse the darkness."

Eleanor Roosevelt on Human Rights:

Universal Declaration of Human Rights (December 10, 1948) United Nations.
The Universal Declaration is the primary international articulation of the fundamental and inalienable rights of all members of the human family. It represents the first comprehensive agreement among nations as to the specific rights and freedoms of all human beings. The Declaration has become a cornerstone of customary international law, binding all governments to its principles.

Human Rights and Human Freedom: An American View (1946) Eleanor Roosevelt
As a member of the United States delegation to the United Nations General Assembly, Mrs. Roosevelt debates Andrei Vishinsky, chief Soviet delegate, over the proposed amendment that no propaganda should be permitted in refugee camps against the interests of the United Nations or its members. The success of her argument, based on the idea that such an amendment would violate human rights by restricting freedom of speech and expression, strengthened Mrs. Roosevelt’s position as a leading voice in the international defense of human rights.

The Promise of Human Rights (April 1948) Eleanor Roosevelt.
This article, from the journal Foreign Affairs, provides a brief history of the Commission on Human Rights and its efforts to write a draft international Bill of Human Rights, including a Declaration and a Convention. Mrs. Roosevelt discusses both documents, including the articles she thinks are of vital importance, and her views on the Commission’s work in general.

Making Human Rights Come Alive (1949) Eleanor Roosevelt.
This speech to the Second National Conference on UNESCO reflects on the Universal Declaration and the problems that had to be overcome in writing a truly international document. Mrs. Roosevelt cites the difficulties in searching for appropriate wording and precedents in law and especially in bridging the gaps between cultures.

Statement on Draft Covenant on Human Rights (1951) Eleanor Roosevelt.
The American delegation proposes that the Draft Covenant be divided into two separate documents of equal importance to be considered for adoption simultaneously; one for civil and political rights and the other for economic, social, and cultural rights. Mrs. Roosevelt argues that differences in terms of the time, methods and machinery needed to implement the various provisions make such a division a practical step.

On the Draft Convention on Political Rights of Women (1953) Eleanor Roosevelt.
Discussing the specific articles of the Convention, Mrs. Roosevelt argues that the objectives of the United Nations are not only to encourage equal political rights for women in all countries, but also to ensure that women fully participate in directing the policy making of their governments.

In Your Hands (March 27, 1958) Eleanor Roosevelt.
Presenting a "guide to community action" on the eve of the Universal Declaration’s Tenth Anniversary, Mrs. Roosevelt declares that "the destiny of human rights is in the hands of all our citizens in all our communities." She urges people to improve human rights conditions "in small places, close to home" as the first step towards global progress.

Adoption of the Declaration of Human Rights (December 9, 1948) Eleanor Roosevelt

There Are Lies, Damned lies, and Statistics: Proof in Wage & Hour Class Actions

2011-10-17T13:26:00.001-07:00

The illusion of truth found in statistics is that numbers not only point at truth, they actually touch it. When I was a boy growing up in the cornfields of Southern Illinois, my two mentor grandfathers would take me rabbit hunting. They would put me in middle as the three of us walked in a line down the rows of winter stubble in the harvested field. If we scared up a rabbit, and the two of them missed both left and right, they proclaimed by an average of their two missed shots, I had hit the rabbit. Statistically, that I had not even pulled the trigger made no difference, though we at no rabbit for dinner that night.

So here’s the philosophical question: if 59,000 employees do not take their meal or lunch breaks, but no one sees or hears a manager tell them to forego their breaks, does the missed break really happen? Actually, the question is legal as well, and has practical consequences. The employees would like to use statistical proof to make their case. The proof goes like this: if the employer’s time records show an unexpectedly high incidence of missed breaks so far outside the “standard deviation” expected by random chance, then can we conclude that another factor was operating to produce the missed breaks? And . . . is that other “factor” the culture and direction of management?

Currently, the California Supreme Court is considering this question, somewhat differently articulated. Plaintiffs are suing a restaurant chain in the case of Brinker v. Chili’s, Romano’s Macaroni Grill and others for penalties associated with missed breaks for tens of thousands of employees. The Court of Appeal rejected the statistical evidence, and denied class status on the grounds that there was not sufficient commonality among the employees. Each employee, held the court, had a unique question of fact as to why the break was not taken. The question arose because the Brinker court also ruled that an employee could recover for missed breaks only if the employee proved that management required the employee to work through the break, or knew of the practice of missing a break, and passively condoned the practice.

The issue will be decided by a court having new Brown appointments to the Bench, and in the aftermath of conservative Dukes v. Wal-Mart, the recent U.S. Supreme Court decision rejecting the “culture of bias” theory proven by sampling data. Chief Justice Tani Gorre Cantil-Sakauye and Justice Goodwin Liu have been appointed by Governor Jerry Brown, and likely will had a liberal bent to the Court as it revisits the issue. My prediction however is that the “tail” will “wag the dog” in this case. That is, I think the court will hold that a) employers have no automatic liability for missed breaks they fail to monitor and enforce but also b) that statistical evidence will be deemed admissible as proof of the issue that employers are actively preventing employees “as a class” from taking their breaks. That is, the statistics will be admissible to prove employer complicity and intent, similar to the way statistics operate in “disparate impact” cases in discrimination filings.

Place a Brain in the Brainstorm. Slugs can acquire new mugs, & become innovative pugs.

2011-10-12T09:49:00.001-07:00

The following article is a reprint:

HBR Blog Network (Harvard Business Review)

JEFF DYER AND HAL GREGERSEN

Jeff Dyer is the Horace Beesley Professor of Strategy at the Marriott School, Brigham Young University; Hal Gregersen is a professor of leadership at INSEAD; They are the authors of the The Innovator’s DNA.

Learn How to Think Different(ly)

10:24 AM Tuesday September 27, 2011
by Jeff Dyer and Hal Gregersen

In the Economist review of our book, The Innovator's DNA, the reviewer wondered whether genius-level innovators such as Marc Benioff, Jeff Bezos, and Steve Jobs challenge the idea that working adults can really learn how to think differently and become innovators.

We don't think so. Remember, it was Steve Jobs who jump-started the now-famous "Think Different" advertising campaign as a way to inspire consumers and recharge Apple's innovation efforts. It worked. Reflecting back on the campaign, Jobs said "The whole purpose of the 'Think Different' campaign was that people had forgotten what Apple stood for, including the employees." And the best way to tell people what Apple stood for was to tell them who the company's heroes were. The campaign reminded everyone — consumers and employees alike — that the "crazy ones...see things differently."

Reams of relevant research (including our own) proves Jobs right. Innovators excel at connecting the unconnected. They engage in associational thinking. At Apple (or at any innovative company), they take a little bit of this, sprinkle in a little bit of that and that and that to churn out market-busting ideas such as iTunes, and the iPod, iPhone, and iPad (along with a few market disasters like the G4 Cube computer).

But neither Steve Jobs nor Apple nor any other high-profile innovator or company has a corner on the think-different market. In fact, our study of over 5,000 entrepreneurs and executives shows the opposite: almost anyone who consistently makes the effort to think different can think different.

Take Gavin Symanowitz, whom we recently met in South Africa. His original business,GetAGreatBoss.com, lets great managers showcase their skills to attract talent and boost their own careers by conducting a 360 review of the manager by his or her staff, and if the results are favorable, he links the results to job ads that the boss is trying to fill, making these job ads far more appealing. By connecting the unconnected — 360 leadership assessments and help wanted ads — Symanowitz forged an online business that sprouted in Africa and now grows globally.

Innovators (of new businesses, products, and processes) spend almost 50% more time trying to think different compared to non-innovators. In other words, non-innovators do occasionally think different (answering "at least a little bit" to questions like "I creatively solve challenging problems by drawing on diverse ideas or knowledge" to hit the 48th percentile in our global database). Yet compared to innovators, they just don't do it as often. Generating new business ideas that make a positive financial impact takes time. Innovators who spend more time thinking different (scoring in the 70-80th percentile) consistently engage in associational thinking by "agreeing"or "strongly agreeing" with questions like the one above and they deliver innovative results more frequently than those who don't. It's that simple.

If thinking different can make such a positive difference, why don't more people spend more time doing it? Researchers at Harvard Medical School opened our eyes to one compelling answer. Sixty to eighty percent of adults find the task of thinking different uncomfortable and some even find it exhausting. When adults must connect the unconnected through associational thinking, it wears them out. Why? Because most adults have lost the skills they once had (just watch almost every four-year old who relishes the chance to think different. And all of us were once four-year olds). We don't lose this skill because genetic coding automatically shuts it down on our twenty-first birthday. Instead, most of us grew up in a world where thinking different was punished instead of praised (at home or school). So while roughly one-third of anyone's innovation capacity comes from their genetic endowment, two-thirds of it is still driven by the environment.

So here are a few simple suggestions to ratchet up your associating skills, the essence of thinking different.

Just do It. Nike's slogan is not a bad starting place when it comes to creative thinking. Do it by frequently forcing associations or connections across different ideas when they don't naturally emerge. John Hunt, Global Creative Director at TBWA Worldwide, told us how his company uses role-playing to help their clients think different. Clients assume the persona of an innovator from another company such as Apple or Virgin, a form of role-playing that encourages clients to look at a challenge from a different point-of-view.

Shake it up. When associations don't come naturally, try forcing them to surface unnaturally — by shaking things up randomly. For example, try the Idea Generator app, which randomly combines three words together when you shake your smart phone. Shake it again and three more random words show up. You can get even more creative combinations by adding your own words to the mix (including foreign ones) and seeing what you get. For example, we just shook up the app while writing this blog and got three words — perforated, bite-sized, and humane — which might help generate a new idea. Perhaps putting bite-sized perforations into a new product could make a difference. That's exactly what David Mullany did in 1953 by transforming a solid plastic ball into the Wiffle ball, a completely new product with bite-sized perforations in it.

Repeat. Repeat. Repeat. Researchers at Harvard Medical School found that if adults practice associational thinking long enough, the task no longer exhausts but energizes them. Like most skill-based activities, if we slog away at it and practice over and over again, the task becomes not life taking but life giving. And that's when the most creative ideas pop out.

As a leader, how often do you think different? How often do you brainstorm? How often do you hunt for solutions in new environments? Thinking different is easier said than done. We don't claim that folks can jump from the low end of the bell curve of creativity performance to the high end just with practice. But when it's done frequently enough by just about anyone, it can transform good ideas (and not so good ones) into great ones that might even disrupt the world. We have found that most people can actually do this reasonably well if they choose to put in the time and effort that's required to think different. That's what disruptive innovators do, day after day. Do you? Can you? Will you?

Random Quotes about Law and Lawyers.

2011-10-10T22:06:00.001-07:00

I don't want to know what the law is, I want to know who the judge is.

Roy M. Cohn

Law is mind without reason.

Aristotle -- Greek critic, philosopher, physicist, & zoologist

Lawyer: One skilled in circumvention of the law.

Ambrose Bierce

Nothing is illegal if one hundred well-placed business men decide to do it.

Andrew Young

Make crime pay. Become a Lawyer

Will Rogers

Juries scare me. I don't want to put my faith in 12 people who weren't smart enough to get out of jury duty.

Monica Piper

There are three kinds of lies: lies, damned lies and statistics.

Benjamin Disraeli

I don't want any yes men around me. I want everyone to tell me the truth - even if it costs him his job.

Samuel Goldwyn

Social Network Postings Are Likely Discoverable in Litigation.

2011-10-10T18:49:00.001-07:00

As Chair of the Orange County Bar Association Labor & Employment Law Section, I oversee monthly topic presentations for our members. This month [10/10/11] the topic was using Facebook, Twitter, LinkedIn and other social media postings as evidence. I've written on this subject in my previous blog entries. The bottom line: Courts are tending to allow discovery of postings if the targeted posts are described in such a way as to be relevant to an issue in the case.

I've also written about the administrative rulings of the NLRB (National Labor Relations Board). These rulings, applicable to both union and non-union employers, prevent employers from punishing employees who engage in "concerted activity" to address grievances concerning the "terms and conditions of employment." Bottom line: even strongly worded language that a manager could consider insulting or insubordinate will be protected if it addresses a workplace condition or management behavior, and could lead to organized labor efforts to address the condition. However, there are two considerations: Is the communication among co-workers? If not, the "concerted acivity" cannot apply. Secondly, is the subject of the posting on point with "terms and conditions?" If employees attack management without reference to addressing a term or condition of work, the "concerted activity" cannot apply.

So, terminating an employee engaged in a "concerted activity" by his or her posting could very well trigger a lawsuit for "wrongful termination in violation of public policy" based on the National Labor Relations Act even if the employer obtained access to the posting legally. [The "Store Communications Act (SCA) may be implicated by an unauthorized access by an employer of an employee's electronically stored information on a third party server.]

Real Unemployment Is 16.5%

2011-10-07T14:53:00.001-07:00

Quote from NPR news today:

-- If the Labor Department were to measure unemployment more broadly — counting discouraged workers who have stopped looking and part-timers who want full-time work — the jobless rate would be 16.5 percent. That rate has been rising since the recent low of 15.8 percent in May.

Frank Pray

Employee Rights Attorney

www.employee-rights-atty.com

949-251-1006 Office

949-637-3360 Cell

L.A. Superior Court Pilot Program Settles Employment Law Cases.

2011-10-07T11:17:00.001-07:00

Of the cases heard at the Stanley Mosk Courthouse in downtown L.A., about 1/3 are employment related cases according to L.A. Superior Court Judge William F. Highberger. Judge Highberger helped create a pilot settlement program for these cases, and 135 of them were ordered into a “voluntary” “Civil Refereee Assisted Settlement Hearing” program between September 19, 2011 and September 23, 2011. The result: 46 settlements in one week.

The program is run with the use of two experienced employment lawyers assigned to the case, one from the plaintiff’s bar, and one from the defense. The reason the process worked seems to be the level of expertise of the two attorney mediators and the confidence of the litigants that they are getting real world reliable advice on how to see the case.

The program, while “compelled” is free. That’s quite a deal. Two attorneys working on the case for perhaps 5 hours the day of the settlement conference could charge $5,000.00. The attorneys work with a judge or commissioner during the mediation.

[Source: LA Daily Journal 10-07-11]

Cheerleader Refuses to Cheer Alleged Sexual Assault Players & Is Silenced by School.

2011-10-04T12:58:00.001-07:00

A Texas high school cheerleader claimed she was sexually assaulted during a party by two of the High School’s basketball players. During a game that followed, the cheerleader refused to cheer for the two individuals on the team she claimed assaulted her. The School required her to cheer, and when she refused, it removed her from the cheerleading squad. She sued the school for retaliation and for denial of her free speech rights.

The Fifth Circuit Court of Appeals upheld the dismissal of the case by the trial court, and the issue remaining was whether the School should recover its attorney’s fees and costs because the suits, according to it, were “frivolous.” The Court held that the retaliation suit was frivolous, and that fees could be recovered. (About $38,000.00) The Court also held that fees were not recoverable however in the suit for denial of free speech. The Court reasoned that a reasonable litigant could believe that the suit had merit, and that the “silent protest” of not participating as a cheerleader was a protected speech not disruptive to ordinary school functions.

By comparison, California free speech law is more liberal and protective of students. See Education Code Section 48950. This section brings parity of protection for on-campus “freedom of expression” as that enjoyed by students off-campus.

The case is: John Doe and Jane Doe v. Silsbee Independent School District (5^th Cir. 9-12-2001).

Even if you're on the right track, you'll get run over if you just sit there. Will Rogers

2011-10-01T08:17:00.001-07:00

Of Politicians: They accomplish nothing, but claim the success of others as their own..

2011-09-22T14:43:00.001-07:00

"He knows nothing; and he thinks he knows everything. That points clearly to a political career."

George Bernard Shaw

Prolonged Slump Hits 20 & 30 Somethings Hardest: 10 years of Career Drag Predicted.

2011-09-22T10:20:00.001-07:00

Full Report: Associated Press Article, as taken from NPR.org.

No Fear of Justice

2011-09-22T08:47:00.001-07:00

http://www.imdb.com/title/tt0060665/quotes?qt=qt0429617

Eating Disorder Treatment [Anorexia] Must Be Covered By Insurance Co. in Parity with Coverage for Physical Injury.

2011-09-21T19:09:00.001-07:00

For the last 15 years the federal Mental Health Parity Act (MHPA) of 1996, has required group health carriers to provide total dollar coverage no differently for mental health treatment than for physical health treatment. The State of California enacted its own mental health parity law in 1999 requiring private health insurance plans to provide equal coverage for serious mental illnesses in adults (SMI) and “serious emotional disturbances” (SED) in children. [Assembly Bill 88]. The public policy behind AB88 is to reduce the heavy personal and societal cost of living with untreated mental illness.

AB88 prevents carriers from writing terms into their health plans that provide for higher copayments, deductibles, and limits on number of outpatient or inpatient days covered. Quite simply, the law is that even if a plan has terms setting such limits on mental health coverage, the carrier must pay in parity what it pays for physical treatment coverage.

Despite these federal and state laws being “on the books” for over a decade, the group health insurance industry has been unrelenting in denying equal benefits for eating disorders. I frankly believe a “cost/benefit” analysis by insurance executives has led them to accept the costs of being sued on a case by case basis rather than comply with the law as responsible corporate citizens.

The most recent battle, fought by Blue Shield of California, was lost by the carrier in the case of Harlick v. Blue Shield of California, 2011 DJDAR 13132. The case involved the one adult anorexic, Jeanene Harlick, who suffered from anorexia for over 20 years. Due to severe self starvation, she was at 65% of her healthy weight. She admitted herself to an out of state eating disorder unit, Castlewood Treatment Center, in Missouri. On admission, she had to have a feeding tube inserted.

Jeanene did not obtain pre-authorization from Blue Shield for her out-of-state treatment. Candlewood had no medical doctors or nurses or staff, but relied exclusively on the use of psychologists. Jeanene’s policy did not such a facility because it did not meet the policy’s definition of a covered “skilled nursing facility.”

There was no dispute in the trial and appeal that the definition excluded the type of facility actually used by Jeanine in Missouri. But, the Ninth Circuit ruled, it also was not disputed that Jeanine’s care was “medically necessary.” California’s mental health parity law lists nine examples of “mental illness” covered by the Act: Anorexia Nervosa is one of those. However, many other mental illnesses are also covered by the general wording of the statute.

The Ninth Circuit essentially held that treatment by psychologists for a serious mental illness is to be covered in parity with medical treatment by physicians and nurses providing treatment for physical illness or injury. The Ninth Circuit held specifically that Residential Treatment for Anorexia Nervosa is to be covered in parity with coverage for physical illness.

California has 3.4 million group health policyholders. Eating Disorders affect about 6/10% (.6) of the adult U.S. population, of which about 1/3 receive treatment. The average age of onset is 19, but the condition is growing among teenage girls. See generally: http://www.nimh.nih.gov/statistics/1EAT_ADULT_ANX.shtml

Blue Shield of California (Anthem) has indicated it will appeal to the U.S. Supreme Court. While that is the Company’s legal right, I believe the carrier’s continuing violations of the parity law is unconscionable. Young people will continue suffer, and some of them will die, because of the cold calculating and arrogant attitude of the carrier in fighting compliance case by case.

Useful References:

http://www.dol.gov/ebsa/newsroom/fsmhparity.html

http://www.scribd.com/doc/65850619/Anorexia-Insurance-Coverage

http://www.mathematica-mpr.com/PDFs/snapshot.pdf

AppellateOpinion.pdf Download this file

snapshot.pdf Download this file

Family Friendly Economy? Parents Struggle to Pick Up Kids from Daycare.

2011-09-20T14:45:00.001-07:00

Today as I reviewed a potential case, the reality of conflicting needs became quite clear: a single parent (or a married parent with the other parent geographically distant) must leave work no later than a specific time each day in order to pick up a child staying at day care. The employer insists that the employee work overtime, often informing the employee "at the last minute" of a project requiring overtime. What if the employee refuses or resists the overtime because of the need to pick up her child, or face the prospect of a) losing her childcare services or b) her child being taken to "county child protective services" after a certain hour in accordance with the childcare provider's policies?

Here is the tension: We are in a society of numerous single parents as the sole providers, as well as two parent income households. We are sadly a society of geographically dispersed extended family members, such as grandparents, aunts, or uncles, to provide family support. Child care is underfunded, lacks high standards of training and quality, is often an underground "cottage industry" that goes unmonitored, and is difficult to find because having such low profit margins. Finding a decent, affordable child care center is difficult, and keeping one is important. Losing one, because of work demands, is a serious matter.

Employers on the other hand have a legitimate need to meet the demands of business through the use of paid overtime, rather than adding additional part time or full time employees. In a depressed economy, there are plenty of workers available to work overtime because one parent remains "at home," they either have no parental duties, or have better child care options than single or separated parents. So, do we just let those single parents be ground under by the demands of an intransigent employer who can see no further than the immediate need to work the overtime?

Questions like these are the classical political debate between libertarians and free market advocates, on the one hand and liberal, social engineering proponents on the other hand. The hypocrisy of course is that for decades both political parties have been pounding the "family values" drum during political campaigns.

The truth, I feel, is in the Aristolean ideal of the "golden mean." That is, neither a purely libertarian nor a purely socialistic solution is sensible. The truth is to be found in the right balance of government and free enterprise.

There is a need to support business by encouraging "family friendly" approaches. A business that attracts parents because it offers work scheduling compatible with the need to pick up children by a set time after work will actually act in its self-interest. Sometimes nothing more is needed than a pro-active attempt to schedule people around their family life requirements. A dictatorial "tops down" management style forecloses the kind of "win-win" solutions that employees can provide by including them in the decision process. A parent, for example, may be able to work overtime two or three days a week, but not other days. Dialogue and cooperation can result in a coordinated employee schedule that meets the demands of all days of the week.

The alternative, if the need for flexible scheduling is not being met, is to call for state legislation that prohibits an employer from requiring overtime of an employee if that overtime would result in the parent being unable to pick up his or her child from a daycare provider before that provider closes for business. The law obviously would also need to foreclose discrimination or retaliation against an employee or applicant for employment who needed such scheduling of his or her workday.

This kind of legislation is not currently "on the books" in California or the federal government. I am not sure it should be. Yet, knowing the struggles of being single parent, the "child care dilemma" is one employers should view sympathetically or potentially face new laws requiring scheduling flexibility.

“Bushes as Latrines”: Ninth Circuit Rules Day Laborers May Not Be Kept From Gathering.

2011-09-19T11:50:00.001-07:00

I have recently visited Redondo Beach a number of times to visit my adult daughter, who moved within a block of the beach and near the village. The town is charming, and speaks of hope and dreams fulfilled: a seaside life of ever rising property values. (Except that bubble burst some time ago, and the dream is now month-to-month).

Still, the City government wanted to preserve the tranquility and ambiance of a world set apart from the stresses and strains of poverty and desperation. Undocumented workers gathering on the street corners seeking cash under the table for back-breaking work—well, that is not something one ordinarily uses in a dream script. So, the City Council voted to restrict such gatherings of day-laborers, borrowing from a Phoenix AZ city ordinance approved by the Circuit in 1986 (the year my daughter was born). The difference was that Redondo Beach restricted gathering and activity “on the street” and expanded it to include sidewalks, alleys, “and other [vague] such locations.” It was this further limitation that seemed to trigger a different result by the Ninth Circuit 24 years later.

The Ninth Circuit, en banc, ruled 9-2, with Justices Carlos T. Bea, and Alex Kozinski, dissenting. Justice Kozinski wrote as follows: “Nothing in the First Amendment prevents government from ensuring that sidewalks are reserved for walking rather than loitering; streets are used as thoroughfares rather than open-air hiring halls; and bushes serve as adornment rather than latrines.”

So there you have it: Cities may not protect their bushes from mob attacks by urinating undocumented workers. Justice Kozinski dares his colleagues to show him where in the Constitution it says that. I think the argument got a bit emotional. Statements like these indicate the “bigger picture” of civil liberties for us all in gathering in public places for sublime or trivial reasons may have gotten lost. The City surely has a legitimate interest in protecting itself from public urination. It likely has ordinances that already address that problem. I doubt the Ninth Circuit would find it “unconstitutional” to arrest an undocumented worker caught in the act.

The issue, it seems to me, is one I intuitively grasped even before attending law school 37 years ago. “Loitering” can be a definition applied by an oppressive government to interfere with lawful associations and gatherings in public places to address matters of political importance. I agree with the Ninth Circuit en banc decision. Let the City draft its ordinance more clearly, with greater focus on the real problem, and with less opportunity for abuse of constitutional freedoms.

The Case: Comite de Jornaleros v. City of Redondo Beach, 06-55750. (Sept. 16, 2011)

Every Vice is A Twisted Virtue: The Weaknesses of a Compulsive Achiever.

2011-09-19T10:48:00.001-07:00

Source

Being a high-achiever can be rewarding, but many smart, ambitious professionals are still less satisfied than they should be. This is because many of the behaviors that help you succeed can also get in your way. Watch out for these
two-sided traits:

Driven to get results. High-achievers can get so caught up in tasks that they fail to provide transparency to colleagues or help others. Don't forget to collaborate or you'll feel alone.
Craving positive feedback. High-achievers care intensely about others' opinions and tend to obsess over criticism, even when it's included with positive feedback. Don't let one constructive piece of input overshadow everything you hear.
Guilt-ridden. Guilt often motivates achievers to produce, but no matter how much they accomplish they still feel like they aren't doing enough. Set realistic goals and take satisfaction in achieving them.

Today's Management Tip was adapted from "Managing Yourself: The Paradox of Excellence" by Thomas J. DeLong and Sara DeLong.

My Life as a Lawyer Nerd: How I Improved My Social Intelligence

2011-09-16T16:13:00.001-07:00

A phrase we often here these days is “social intelligence” to indicate how people read and use the social signals that produce success in relationships of all kinds. Negotiation is one such social skill, and I submit we are engaged in it every day with friends, family, and business associates. Some of us even use it with God (or try).

A book I just ordered based on a recent review is by the “National Institute of Trial Attorneys” and is entitled: “Advanced Negotiation and Mediation Theory and Practice.” See the Amazon Summary. Yes, I admit that even after 34 years of practice I lack a full comprehension of the many nuances of effective negotiations. Socially, I can sometimes be clueless. That’s fine, in my private nerd world. It is not acceptable for my clients in the middle of an intense negotiation session. So, I continue to read and learn.

This book covers the “social psychology” of negotiation. It addresses how individual personality and style must be factored into how the negotiation is best to proceed. The book explains how “small talk” isn’t small at all, but is an emotional “ice breaker” technique that opens people up to more substantive communications. The book covers also the importance of setting and agreeing upon an agenda for the negotiations, that is, the procedures and basic “rules of negotiation” that will apply. If everyone agrees, the process holds fewer surprises, and produces less angst over just how this might turn out.

After the “agenda setting” comes the “information bargaining” phase. This is an open ended questioning and listening process. The focus is to be on learning and communicating “interests” rather than just setting forth “positions.” A “position” tends to “I’m right, and you’re wrong” and can become entrenched or static. An “interest” is a goal that admits to multiple different ways of satisfying that interest, without being “good” or “bad” because of having the “interest.”

It is not only OK, but advantageous to be clear, emphatic, and even emotional in making your points. However, make your points in a non-threatening way (everyone knows already the alternatives to settlement), and use balanced arguments, acknowledging some areas of weakness to gain credibility in your perceived ability to accurately assess the merits of a case or defense. Be positive. Let the other party know why a “deal” has benefits to them, rather than just to you. No one buys an idea, good or service solely to meet your needs. Duh.

In closing the negotiation, it helps to have a deadline, where the settlement reaches a point of crisis: either the deal is concluded, or it falls through. This time limit sharpens the cost/benefit analysis as parties realize that if the case does not settle now, it may never settle, or if it settles, it may be on terms less advantageous than the present ones. Thus, many cases end by settlement in the last hour of mediation because the “posturing” has been exhausted, the parties have a better idea of the “realistic outcome” of the day’s efforts, and they know the present “bird in hand” may simply fly away, never to return, if they do not close the deal now.

Of the 200 pages of the book, only 19 focus on the mediation process, less than 10%. That is interesting given that many cases are diverted into Alternative Dispute Resolution by agreement of the parties. The value of this book is that it helps negotiators set the right tone, and do the right “ground work” before going to mediation. The authors believe, I think, that empowered skilled negotiators can often settle cases on their own, without a mediator. This approach may be especially true for trial lawyers who have the case in trial, and conduct negotiations during recesses, or impromptu settlement conferences while the jury is deliberating. Those kinds of “deadlines” can clear the mind.

So, I will be adding “Advanced Negotiation and Mediation Theory and Practice” to my negotiation library of some 7 volumes. It always helps to be reminded by a refresher course about the basics of good negotiation.

Creative Issue Spotting: The Birth of An Employment Law Case.

2011-09-15T19:02:00.001-07:00

Another attorney called me today to ask if I might be interested in a couple of referrals. We reviewed the matters. As if often the case, I separated the "wheat from the chaff" by applying a few heuristics of case selection: a compelling and simple story that makes sense to non-lawyers.

In this instance, I knew of a local published decision as well as a U.S. Supreme Court decision that hold a person who is fired because associated with another employee who has filed a discrimination case may have an independent case for retaliation. The person fired is fired because doing so will in some way hurt the real target, the employee complaining of discrimination. In this case, the relationship was husband and wife, and the employer, I believe, fired the husband in order to retaliate against the wife for filing two discrimination complaints. The financial and emotional hurt to both the wife and the husband are obvious.

The caller did not see this issue, but together we applied the theory to analyze the facts, and we identified the "simple compelling story." This process is part analysis and part creativity. In one sense, a "case is born" from this imaginative exploration of possibilities. Often a "case" is at first appearance just a strong feeling of grave injustice done. That conclusion however is just a beginning. "Unfairness" is often legally tolerated in employment cases. We employee attorneys are looking for "illegality" as well as unfairness. In this case, freedom of association is protected as a public policy by the U.S. and State constitutions. Likewise, the anti-discrimination statutes in California include a little known and infrequently used protection against retaliation or discrimination because an employee is thought to be associated or aligned with a "protected group."

So, today the "smell test" was passed by at least one of the referrals, and the next stage of evaluation will begin with a face-to-face interview with the prospective client.

Record Attendance at My Professional Section of the Bar: Labor & Employment Law

2011-09-12T18:06:00.001-07:00

I am 2011 Chair of the Orange County Bar Association Labor and Employment Law Section. Today (9/12/2011) our Section hosted a joint session with the "Business Litigation" Section, and had about 200 attorneys, past Bar President, other Section Chairs, and last but not least, a U.S. District Court Judge, in attendance. The subject was non-compete agreements, "non-solicitation of customers" agreements, and agreements providing for confidentiality of work processes and information.

Bottom line, I am happy to say, is that the Courts have generally closed the door on employers' efforts to restrict employees right to pursue their employment through the "end run" of "trade secret and confidentiality" agreements.

Wise, or only Wizened?

2011-09-12T17:54:00.001-07:00

My professional Association, the Orange County Bar Association, has just created a new Section, named the "Masters Division." While the term "master" could be inflated, it at least recognizes that some practitioners have managed to endure and maybe even thrive in the practice of law for over 20 years. For many of us, that includes the stresses of litigation. I'm frankly interested, as an amateur student of psychology, to observe how many of us are not only wizened but wise for the experience.

Here is the announcement of the first meeting of the newly formed section:

Historic Trials Re-lived: Tate - La Bianca Murder Trial

Thursday, Sept. 22, 2011
Registration & Social 5:30 p.m.; Dinner 7:00 p.m.; Program 7:45 p.m.
Turnip Rose, Grand Newport Plaza
Costa Mesa, CA
Don't miss the OCBA Masters Division's inaugural event! Former L.A. County Deputy District Attorney Vincent Bugliosi will deliver a keynote address as we take an in-depth look at the historic Tate - La Bianca murder trial.

Speaker:
Vincent Bugliosi
Former LA County Deputy District Attorney

Topic:
Historic Trials Re-lived: Tate – La Bianca Murder Trial

Register online or download the registration flyer.

Creative Limits: Lawyers as Musicians of the Law

2011-09-12T15:15:00.001-07:00

I love classical music. It combines the best of the form of creative structure and the creatitve, often emotional content that fills the structure. Codas, counterpoints, tempo, motifs, rhythm, harmony, balance, recurrent themes, introductions and developments, all speak to the shape of an infinite number of creative possibilities.

When we work, we are given limits and structures. We may not have a major part in the whole production, but even with our limited part, we have a structured space of time and effort to be filled by a creative expression. I submit that every act can have some aspect of creativity and "play." If you mop floors, you can dance and sing with your mop across the floor, or work out algebraic formulas, or vary the patterns and timing of the mop strokes. You might even think of a new and better design for mops and buckets. Creativity is a continuous mind set to see beyond what is to what could be.

In the Los Angeles Lawyers Philharmonic, the entire symphony is comprised of current judges, retired judges, and lawyers. In 2 1/2 years the LALP has given over 24 concerts, including at Disney Hall, the Dorothy Chandler Pavilion, and the Greystone Mansion. I find it inspiring and refreshing to know my colleagues find quality creative outlets. These musicians, I suspect, are creative and spontaneous people with the ability to change viewpoints in multiple areas of their lives, including the practice of law itself. Creativity is not a practice that limits itself to one endeavor. It is a personality trait that colors all activities.

There is an old Celtic adage I have read: "Don't entrust a sword to a man who does not dance." I tend to feel the same way about any conferral of power. I don't know if Adolf Hitler ever joked, danced, or enjoyed a good party, or played a musical instrument. I have never seen photos or footage of him doing any of those things. I have seen footage of him raving like a maniac with a totally dour and angry expression, spitting out each word like a bullet. I read that Hitler, in his youth, before getting into fascist socialistic politics, was a painter. I think he may have given up painting at that particular fork in the road, turning instead to the stealing of fine art from Jews and captured nations. Yet, I wonder, what might Hitler have become had he continued paiinting. Maybe millions of innoncent people would have been spared.

Of lawyers too, who are given the power to know, analyze, present, and practice law as a monopoly, the question is the same: Can they be trusted? I tend to trust people with big, passionate, hearts who delight in beauty and grace. These people often show an ability to be in awe of things outside themselves. In the words of apologist Francis Schaeffer in his book "True Spirituality" they are not their only "point of integration."

While I realize we can't pick our lawyers or judges from The Los Angeles Lawyers Philharmonic, we can look to the whole characters and personalities of the "experts" we entrust with our legal cases, our government, our finances, our physicial health, our infrastructure, our environment, or any matter in which we confer on another the power to act on our behalf. I submit that creativity, a sense of play and humor, may be an important indicator of whether that trust is well placed.

Update: Gay Marriage Status in California: I predict U.S. Supreme Court Will Uphold Prop 8.

2011-09-07T17:52:00.001-07:00

Yesterday I wrote on how Gov. Jerry Brown, while State Attorney General, failed to uphold his oath to support and defend the State Constitution. The California State Constitution was amended by popular initiative [Prop. 8] to define “marriage” exclusively to be between one man with one woman. Brown refused to appeal a U.S. District Court Judge’s ruling that Proposition 8 was unconstitutional. The sponsors of Proposition 8 stepped into the gap, and filed the appeal. The gay couple winning the case in the District Court challenged the sponsors “standing” to bring the appeal, stating that only an elected State Office [i.e., the A.G.] had standing to appeal.

The questioning from the Bench during oral arguments yesterday (09-06-11) indicates that the justices felt much as I did concerning the integrity and purpose of the initiative process. Even the two recent Supreme Court appointees [Chief Justice Cantil-Sakauye and Justice Liu] of now Governor Jerry Brown noted that the spirit and purpose of the initiative process would be rendered meaningless if left to the discretion of public officials who disagreed with the outcome of the initiative process. I believe that the questioning implied an underlying attitude by the Justices that former State Attorney General Jerry Brown let his personal brand of politics take precedence over the duties of his elected office. Here are some sample questions:

“Doesn’t that make the initiative process illusory?” by the Chief Justice.

Doesn’t the decision not to appeal by the executive branch give state officials a “pocket veto” over the will of the people? by Justice Carol A. Corrigan.

“The attorney general and the governor get to pick the laws they want to enforce?” by Justice Ming W. Chin.

“Without a proper and rigorous defense, the courts aren’t in a position to hear all points of view . . . Isn’t that unfair to the court?” by Justice Joyce L. Kennard.

The bottom line: The Court will take Jerry Brown to the wood shed, and expose his brazen dereliction of duties. That said, the issue will simply be fully appealed and briefed to the generally liberal Ninth Circuit, which is likely to uphold the ruling of the District Court. The issue will ultimately be decided by the U.S. Supreme Court. I predict that the Court will be unwilling to divest the states of their traditional role in defining the status of marriage, and will not apply of rule of “strict scrutiny” to the validity of those laws. The vote once again, however, will be split along ideological lines, and I predict another 5-4 decision unless President Obama is accorded another appointment to the Bench.

Jerry Brown Violated His Oath of Office in Failing to Appeal a U.S. District Court's overturning of Prop. 8 in CA defining "marriage."

2011-09-06T18:07:00.001-07:00

Oral arguments are to be heard today (Sept. 6, 2011) in the matter of Perry v. Brown S189476, concerning gay marriage rights in California.

Last year a federal judge struck down California's Proposition 8 added to the state Constitution by a majority vote of the citizens. Proposition 8 states that marriage is defined as a legal union between one man and one woman. The Proposition was vehemently opposed by gays who argued that denying them the right to marry was a violation of their equal rights under the law. The backers of the proposition argued that the state had compelling interests in defining marriage, and that the right had long been recognized and settled as a prerogative of the state in the interests of maintaining a stable and prospering society.

Then Attorney General Jerry Brown (now governor) announced publically his position that the proposition was unconstitutional, and that he would take no action to bring an appeal of the District Court's ruling. The backers of the Proposition then stepped into the breach to file the appeal as a true party in interest. The gay parties then filed a challenge to the appeal, stating that the backers of Prop. 8 had no standing to bring the appeal, that is, they were not authorized to represent the people of California. They argued that right resided alone in the Attorney General.

The Ninth Circuit Court of Appeals certified the question as a matter of state law for the State Supreme Court to issue an advisory opinion. The State Supreme Court will now decide if the backers of the proposition have "standing" when no government official will advance the appeal. The argument for the granting of standing is that the initiative process is unique in its function of bypassing government officials in bringing a matter of enacted law to the vote of the general citizenry. Consistent with that purpose, the process should include the right of the representatives that presented the initiative to press the appeal even beyond the vote when elected officials fail to do so. The counterargument is that the initiative process stops with the enactment of the provision, and only the attorney general has the authority to defend the Proposition. He alone represents "the people."

My question is what happens when an elected official, in this case, Jerry Brown, violates his oath of office as Attorney General, and fails to "support and defend the Constitution of the State of California". The initiative process by its nature is an act of distrust of public officials to carry out the will of the people. Should not the initiative process be in continuous application through the appeal process in the courts as well as the ballot process? It would be wise for both sides to reflect that each will have access to the initiative process, and each side may seek "standing" before a court if the issue turns against them. It is time for the CA Supreme Court to do the right thing, and inform the U.S. Court of Appeal that this state recognizes the standing of the backers to speak on behalf the State Constitution when the Attorney General violates his duty to do so. This approach, whatever the eventual outcome, will serve democracy as an important precedent.

The following is the constitutional oath of office taken by Jerry Brown, and disregarded by him in failing to file an appeal of the U.S. District Court's ruling. Proposition 8 was enacted by the people to be a provision of the State Constitution.

CALIFORNIA CONSTITUTION

ARTICLE 20 MISCELLANEOUS SUBJECTS

SEC. 3. Members of the Legislature, and all public officers and

employees, executive, legislative, and judicial, except such inferior

officers and employees as may be by law exempted, shall, before they

enter upon the duties of their respective offices, take and

subscribe the following oath or affirmation:

"I, ______, do solemnly swear (or affirm) that I will support

and defend the Constitution of the United States and the Consti-

tution of the State of California against all enemies, foreign

and domestic; that I will bear true faith and allegiance to the

Constitution of the United States and the Constitution of the

State of California; that I take this obligation freely, without

any mental reservation or purpose of evasion; and that I will

well and faithfully discharge the duties upon which I am about

to enter.

"And I do further swear (or affirm) that I do not advocate,

nor am I a member of any party or organization, political or other-

wise, that now advocates the overthrow of the Government of the

United States or of the State of California by force or violence

or other unlawful means; that within the five years immediately

preceding the taking of this oath (or affirmation) I have not

been a member of any party or organization, political or other-

wise, that advocated the overthrow of the Government of the

United States or of the State of California by force or violence

or other unlawful means except as follows:

________________________________________________________________

(If no affiliations, write in the words "No Exceptions")

and that during such time as I hold the office of ______________

________________________________ I will not advocate nor become

(name of office)

a member of any party or organization, political or otherwise,

that advocates the overthrow of the Government of the United

States or of the State of California by force or violence or

other unlawful means."

And no other oath, declaration, or test, shall be required as a

qualification for any public office or employment.

"Public officer and employee" includes every officer and employee

of the State, including the University of California, every county,

city, city and county, district, and authority, including any

department, division, bureau, board, commission, agency, or

instrumentality of any of the foregoing.

The Longer You're Unemployed The More Likely You'll Remain Unemployed. Another Happy Thought.

2011-09-02T18:02:00.001-07:00

by Jacob Goldstein

- September 2, 2011

The unemployment rate didn't budge in August, according to this morning's jobs report. Net job growth was zero.

Also basically unchanged: The number of people who have been out of work and looking for a job for six months or more.

More than 6 million Americans are now among the long-term unemployed, up from about 1 million before the recession. The long-term unemployment rate is far higher than it's been at any time since before War II.

That's very bad news not just for the unemployed, but for the long-term health of the U.S. economy.

The longer people are unemployed, the less likely they are to find a new job.

This is partly due to the fact that the most employable people — those whose skills are in highest demand — get snapped up right away.

But there are also more insidious forces at work. As Ben Bernanke recently pointed out, the skills of unemployed workers erode, making it harder for them to find a new job. Employers may be wary of hiring someone who has been out of work for a long time. And after months of searching, the unemployed tend to spend less time looking for work.

"After a long period of unemployment, affected workers may become effectively unemployable," economists at the Richmond Fed wrote in a paper published this week.

Over most of the past century, this wasn't much of a problem for the U.S. The typical pattern was for lots of workers to lose jobs during recessions, but to find work after just a few months of unemployment.

That has changed dramatically in the past few years. "Never before in the postwar period have the unemployed been unemployed for so long," the Richmond Fed paper says.

One final, somewhat technical note: The extension of unemployment benefits — which typically expire after six months, but now can run for nearly two years — has probably played some role in driving up the long-term unemployment rate.

But several studies have found that this accounts for only a small part of the overall rise in long-term unemployment. (See this paper from the San Francisco Fed for more on the subject.)

For the most part, "people are simply flowing into unemployment and not finding jobs," Bart Hobijn, an economist at the San Francisco Fed, told me. "That's the overall weakness in the economy." [Copyright 2011 National Public Radio]

To learn more about the NPR iPhone app, go to http://iphone.npr.org/recommendnprnews

Source Article Direct Link

Frank Pray

Employee Rights Attorney

My Website

949-251-1006 Office

949-637-3360 Cell

Lawyer Faces Up To 30 Years for Coaching Witness to Lie

2011-09-02T15:04:00.001-07:00

A Los Angeles area (San Fernando Valley) lawyer, Alfred Nash Villalobos, had a client who was contacted by investigators concerning a suspected immigration visa fraud. Villalobos in turn contacted the attorneny representing the target of the investigation. Villalobos offered to coach his client to lie to investigators in order to thrwart a Grand Jury investigation. The second attorney then contacted the FBI, who set up a sting, in which Villalobos accepted the first agreed cash payment. He was promptly arrested. After a two week trial, a jury convicted him on August 31, 2011. His license is suspended by the State Bar pending the sentencing and the exhaustion of any appeals. He faces disbarment. USA v. Villalobos, 2:09-cr-00824-GHK.

Trigger Happy Employers Using “Remote Kill” to Erase Employee Devices Violate Federal Law.

2011-09-01T16:20:00.001-07:00

A trigger happy employer pulling the “remote kill” trigger without first notifying the employee of the intended kill can cause the employee to lose precious and emotionally sensitive personal data, such as pictures, voice mail, contacts of friends and family, music, financial data and even numerous stored links and passwords.

Smartphones, iPads and other Tablets are so popular with employees that employers are feeling the need to combine the employees’ use of the devices with access to work data and programs. On the surface, this symbiosis is a “win-win.” The employee doesn’t carry multiple devices and the employer doesn’t front the cost of a new laptop or cellular phone. In this manner, iPhones and iPads have been pushing into the territory traditionally held by company laptops and Blackberries.

The problem with this arrangement is corporate security. The employee is co-mingling his personal and business data, especially in email accounts and texts. What if the employee is terminated or quits [or the phone is lost or stolen] and the employer is concerned about confidential or proprietary data now being resident on that employee’s smartphone? The solution for the employer increasingly is the “remote kill.” The employer sends a wireless command that erases everything on the smartphone—personal and business. Background Information: Wall Street Journal.

Employers are violating the law. Unless the employer has authorization and consent to do a “remote kill,” entering an employee’s private and personal device to obtain or delete data is a violation of the federal “Computer Fraud and Abuse Act.” Significant civil and criminal penalties apply. Frankly, many companies do not have an explicit “remote kill” policy, and have taken no precautions to notify employees of the conditions they attach to use of a personal device to retrieve and store company information.

Employees can of course use common sense and routinely back up their personal data in anticipation of a “remote kill” or lost phone. The employee may even appreciate the ability of an employer to do a “remote kill” when his personal mobile device or tablet is lost. Yet, without being warned, employees often are lax or indifferent to the need to do backups.

Clearly there is a “disconnect” among the I.T. department, the H.R. department, and the employee. I.T. thinks only “kill,” H.R. isn’t thinking at all, and the employee likewise fails to see the consequences to his personal data if he is laid off or fired. The solution is a plan, with full disclosure and documents evidencing disclosure and consent.

Good Technology Inc. produces software that allows company data to be “walled off” in secure “containers” within an employee’s device so that the “remote kill” erases only the company data within the container. An elegant, and I submit, a necessary solution. Completing erasing of private personal information with the pull of a remote trigger, in my opinion, is the kind of outrageous conduct that justifies a suit for “Intentional Infliction of Emotional Distress” because it encompasses, potentially, the commission of a federal crime (“Computer Fraud and Abuse Act.”). Punitive damages are likely if there is evidence of a high level management’s conscious disregard of employee rights. The technology and the dangers are well known.

Here is a fact: large companies who should know better are daily using standard operating procedure to “remotely kill” employees’ privately owned mobile devices without their informed consent or authorization. These companies should be held accountable, and a public message delivered that this kind of hubris will not be tolerated by society. If this crime has occurred in your work life, please contact me or other attorney to discuss legal remedies.

Discrimination Lawyers Can "SLAPP" Back When Employers Seek to Intimidate with Cross Complaints.

2011-08-31T19:38:00.001-07:00

When litigants file frivilous lawsuits to silence persons speaking publicly on matters of significant public interest, the courts are authorized to dismiss the suit and to award the defendants their attorney fees in obtaining the dismissal. The term "SLAPP" is an acronym for "Strategic Lawsuit Against Public Participation." The abuse behind the SLAPP is that it's real purpose is not justice based on evidence, but merely to drive up the costs and burdens of litigation in the hope of dissuading the other party from exercising his right to publicly comment on a matter of public importance.

Two plaintiffs attorneys in a battle over a share of fees awarded after a successful discrimination suit illustrate the SLAPP. One Mr. Walczak assisted one Mr. McCoy in obtaining a successful discrimination verdict for their client, and was awarded 25% share in a large fee award. [In discrimination cases, the court is directed by statute to award fees to the successful plaintiff's attorney]. Mr. Walczak had to litigate that claim for fees against Mr. McCoy, and prevailed both at the U.S. District Court level and on appeal to the Ninth Circuit. Mr. McCoy brought a defamation case against his former co-counsel, stating that Walczak had called him a "perjurer." Walczak used the procedures of the "Anti-SLAPP" statute to have the defamation case dismissed in an early pre-trial motion. He argued the defamation case was being used to silence his public statements on a matter of public significance. In the context of a discrimination suit, and the vindication of those rights successfully in court, the trial judge apparently found that topic to be of sufficient public importance. The Trial Judge also concluded that the evidence supporting defamation was so lacking that the case was brought for reasons of abuse and not justice. The trial court awarded Mr. Walczak $92,000 in attorney fees incurred in bringing the anti-SLAPP motion. Therein is the real power of the anti-SLAPP statute.

Mr. McCoy has appealed and argued that the trial judge improperly awarded the $92,000 in fees. The case was orally argued before the Calfornia Court of Appeal on August 30, 2011. The Court appears ready to affirm the trial court's dismissal and award of fees.

For a general overview of Anti-SLAPP decisions in California, go to CA Anti-SLAPP Decisions. See also CA Code of Civil Procedure Section 425.16 et seq.

For employees and their attorneys, the anti-SLAPP statutes provide a powerful protection against employers who would try to intimidate employees by filing cross complaints for defamation or breach of confidentiality agreements, breach of non-solicitation agreements, or whatever sundry suits they might contrive. The use of such suits to silence an employee complaining of discrimination and harassment is exactly the interference with public debate the statutes seek to prevent.

California Attorneys Await Supreme Court Ruling on Whether Employers Must Proactively Enforce Break Time Rules.

2011-08-30T15:49:00.001-07:00

Ask a California Employer lawyer about the Brinker case, and you will get a roll of the eyes. The dismay is with the length of the time taken for the Calfornia Supreme Court to reach a decision in the case. Brinker Restaurant v. Superior Court (Hohnbaum) S166350. As of this date, we are still waiting.

In the meantime, federal and state courts in California continue to rule either that employers must actively police and enforce meal and break time rules, or that employees may voluntarily waive their break periods. The latest to do so is a California state trial judge, hearing a 14 day "bench" trial in Driscoll, et al. v. Granite Rock Company, 103426 (filed Jan. 17, 2008). [Tentative Decision 8/25/11].

The judge ruled that cement mixer truck drivers elected to skip meal and rest breaks, and that the employer was not legally obligated to require them to take the breaks. The judge found the employees preferred to receive premium pay, or to go home early, rather than take breaks.

Critical to the decision was the judge's findng that the employer had taken "reasonable steps" to inform the employees of their break rights. He also thought relevant that no employee had filed a grievance that break times were denied. While it is not clear, it appears that the employer obtained written waivers of the employee's break rights, and had the freedom to revoke those waivers if they chose.

This kind of decision concerns me. In a difficult economy, employees are sensitive to subtle employer pressures. An employee's "waiver" may not be as voluntary as it appears on paper. From the comfortable regions of the High Court, where justices can easily become out of touch with the common working folks, this trial judge opinion may be a preview of the Supreme Court's eventual ruling in Brinker.

It's Time for Congress to Reverse the Ill-Effects of U.S. Supreme Court Decision in "Concepcion."

2011-08-30T15:18:00.001-07:00

Several of my blog posts have focused on the case of AT&T Mobility, LLC v. Concepción ("AT&T Mobility"). The U.S. Supreme Court held in Concepcion that California case law invalidating class action waivers in consumer arbitration agreements is preempted by the Federal Arbitration Act ("FAA"). The undecided issue is whether a California Supreme Court case, Gentry v. Superior Court, decided before Concepcion, is now good law. Gentry held that most class action waivers in employment agreements are unconscionable. Therein the conflict: A federal Supreme Court ruling on a consumer class action issue and a state Supreme Court ruling on a employee class action issue for overtime.

Generally, the matter of interpreting and enforcing contracts has been left to the states. Specifically, whether a contract is "unconscionable" is a matter of state law. Gentry simply acted within this tradition in finding it unconscionable to deny employees class action status by contract.

I believe the federal interest in the free flow of commerce, and the expansive judicial use of the Commerce Clause to serve that purpose, do not apply to California's interest in protecting its own employees from contracts denying them class action procedures for wage claims. The California wage and hour laws are the state's protections of the individual worker against large employer abuses. Denying individual workers a class action remedy effectively removes a major purpose of those laws. Individual employees with relatively small wage claims simply do not have the resources to affect a major shift in employer practices. California rightly allows these employees to use the class action procedures because of the social good it does in convincing employers of the economic wisdom of changing their practices.

It's time for Congress to reverse the ill-effects of U.S. Supreme Court decision in "Concepcion." The bad news is the archaic misguided language of the Federal Arbitration Act, and the overreaching decision of the Supreme Court. The good news coming out of this debacle is that a strong citizen led lobby can reverse the damage by legislation in Congress. The beneficial purposes of the FAA can be retained, while leaving to the states their proper roles in deciding when arbitration contracts are unenforceable under common law contract theories.

Class Actions by Employees May Not Be Aborted after "Concepcion" if NLRB finds filings are "concerted activities."

2011-08-29T10:55:00.001-07:00

The U.S. Supreme Court held recently that consumer contracts may include provisions that require a consumer to waive the right to file a class action against the seller of the good or service. AT&T Mobility v. Concepcion (2011) 131 S.Ct. 1740. The decision was based on an interpretation of the Federal Arbitration Act. Generally, federal statutes pre-empt conflicting state law.

The Concepcion decision did not address employee rights to sue an employer as a class. The National Labor Relations Board interprets the administrative provisions of the National Labor Relations Act. Among other matters, the N.L.R.A. gives employees the right to engage in "concerted action" to address workplace issues with their employers. Surprisingly, the right of "concerted action" extends to both currently unionized and non-union employees.

The case now before the NLRB is D.R. Horton, NLRB No. 12-CA-25764. Briefing has been completed, and a decision is due soon. The case involves an overtime claim by employees who signed class action waivers in their arbitration agreements. The employees claim the waivers are unenforceable because they unduly restrict their rights to engage in "concerted activity" under the NLRA. Most employees in the private section (non-union) would also be protected if the decision is for the employees in Horton.

In Business, Who You Are Is As Important As What You Do: Owner Embraced by His Community.

2011-08-26T10:35:00.001-07:00

Pakastani Dairy Queen Owner Makes a Positive Impact. N.Y. Times Article

Great Local Jurist Is Gone: Justice David Sills, CA Court of Appeal, Fourth Appellate District

2011-08-24T16:07:00.001-07:00

Justice David Sills, age 73, has died after numerous years of exemplary service in multiple capacities. He was for many years the highest ranking judicial officer of Orange County as the Presiding Justice of the 4th District Court of Appeals in Santa Ana for 20 years. I remember seeing him at various bar functions, and on "continuing education" panels of the Orange County Bar Association. For as long as I have practiced in Orange County (since 1988) he has been a prominent member of the legal community. His name will be remembered for many reasons, including his championing of a new Court of Appeal building in Santa Ana, and the hundreds of decisions that bear his name. Orange County Register Story.

Treasury & Fed Are Out of Tricks.

2011-08-23T16:21:00.001-07:00

Following is excerpted from www.NPR.org:

Another U.S. recession is not likely over the next 12 months. Neither is any meaningful improvement in the economy. That's the picture that emerges from an Associated Press survey of leading economists who have grown more pessimistic in recent weeks. They say high unemployment and weak consumer spending will hold back the U.S. economy into 2012.

Their gloominess comes at a time when Europe's debt crisis threatens to infect the global financial system. It also coincides with an annual economic conference late this week in Jackson Hole, Wyoming, and speculation about whether Federal Reserve Chairman Ben Bernanke will unveil any new steps there to help the economy.

Worries that another recession is nearing and that the European crisis will spread have led to a roughly 15 percent drop in U.S. stock prices in the past month. Economists say the Great Recession ended in June 2009. What makes a solution so difficult is that the fear gripping investors isn't just a symptom of economic distress; it's also a cause of it. Sinking stock prices frighten consumers and businesses. They then spend and invest less. Investors respond to lower corporate sales by selling stocks, worsening the market declines. Each day that the stock market sinks "puts another nail in the coffin of the recovery," says Beth Ann Bovino, senior economist at Standard & Poor's. "I had been saying it was a half-speed recovery; now, it's a quarter-speed recovery," Bovino says. She is among 43 private, corporate and academic economists surveyed this month by the AP. As a group, they are more downbeat than when surveyed eight weeks ago.

Among their conclusions: The likelihood of a recession within the next 12 months is 26 percent. In June, the economists had put the likelihood at 15 percent. The economy will inch ahead at an annual rate of 2 percent in the July-September quarter and 2.2 percent from October through December. Though stronger than the growth for the first half of 2011, that isn't enough to lower the unemployment rate much, if at all. And next year will barely be stronger.

Weak consumer spending poses a "major" risk to the economy. In June, Americans cut their spending for the first time in nearly two years. And consumer spending fuels about 70 percent of the economy. The unemployment rate will end this year at 9 percent and 2012 at 8.5 percent. Those rates are slightly less than July's 9.1 percent. But they're more consistent with a recession than a recovery.

The Fed's efforts to keep interest rates at record lows may not succeed in promoting growth or easing unemployment. But its low-rate policies will likely boost stock prices.

The economists do foresee economic growth, job creation, consumer spending and home prices all rising over the next year. But the gains they expect are so slight that many Americans won't notice. For months, the Fed and private economists had clung to hopes that a slowdown in spring and early summer would prove temporary. They initially blamed temporary factors especially higher oil prices and an earthquake and nuclear crisis in Japan that disrupted factory production.

But the economy has kept worsening. U.S. home prices remain depressed. Job growth is weak. Workers' pay is barely rising. The economy grew at an annual rate of just 0.8 percent in the first half of 2011 — much less than expected.

The benefits of the government's $862 billion stimulus are fading. No more stimulus is likely. And in June, the Fed ended a $600 billion Treasury bond-buying program that was designed to help keep rates low to spur spending and increase stock prices. Then Europe's intensifying debt crisis and Congress' standoff over raising the debt ceiling undermined consumer confidence and spooked the markets. Consumers and investors foresee more gridlock ahead as a congressional committee seeks ways to cut at least $1.2 trillion in debt. That means government spending, which normally helps economies climb back from recessions, will likely instead restrain growth.

A committee from the National Bureau of Economic Research decides when recessions begin and end. They define recession as "a significant decline in economic activity (that) spreads across the economy" and lasts for a "few months to more than a year."

Earlier this month, the Fed pledged to keep short-term rates near zero until mid-2013 if necessary to combat economic weakness. The Fed also seemed to suggest it might be open to another round of bond purchases. Many are waiting with anticipation for Bernanke's speech Friday in Jackson Hole at a conference held by the Federal Reserve Bank of Kansas City. At last year's conference, Bernanke set the stage for the Fed's $600 billion Treasury-buying program.

But the economists in the AP survey are skeptical of the Fed's ability to improve economic conditions substantially. "The Fed can't do anything at this stage that's going to be meaningful," says Joshua Shapiro, chief U.S. economist at MFR Inc. The Fed can influence interest rates, Shapiro noted, but "the level of interest rates is not the impediment to growth." A bigger obstacle is tepid demand across the economy. And even with rates at record lows, many companies and consumers can't or won't borrow. Consumers don't want to take on more debt while the economic outlook remains so dim and their job security uncertain.

The collapse in home prices means households have lost $7 trillion in equity since 2005. They're saving, not spending, to try to rebuild their lost wealth, says Sean Snaith, director of the University of Central Florida's Institute for Economic Competitiveness. Consumers have shed about $240 billion in debt, excluding real estate loans, since the end of 2008, according to the Federal Reserve Bank of New York. "We need to see the housing market stabilize," Snaith says. "We need to see some job creation. Until then, consumers are trying to put nest eggs that turned into Humpty Dumpty back together again ... It's just going to take time."

[Copyright 2011 The Associated Press]

Here Today, Gone in Twelve Weeks: Recent Case Further Defines FMLA Rights.

2011-08-23T14:01:00.001-07:00

A recent California Court of Appeal decision draws a bright line on the limits of family medical leave protection. The case is Rogers v. County of Los Angeles (filed August 16, 2011) 2011 DJDAR 12429.

The Family Medical Leave Act [“FMLA”] and the California equivalent of the FMLA, the California Family Rights Act [“CFRA”] provide an employee two prongs of attack if an employer violates the leave law: “interference” with the FMLA/CFRA and “retaliation” because an employee exercises her right to leave. The protection of the FMLA/CFRA is essentially this: the employee who uses the leave and is released by her doctor to return to work within the 12 weeks, and who can perform all the essential functions of her job (with accommodation, if needed), is entitled to be return to the same or comparable position, on essentially the same terms and conditions as those existing before her leave rights were exercised.

Rogers was a 36 year employee of the County of LA. She was in charge of a “special services” that supported the Board of Supervisors administratively. She became unable to work due to work related stress, and exercised her FMLA/CFRA rights to leave. She was out of work for 19 weeks [7 weeks longer than the FMLA/CFRA protection of 12 weeks.] Within the first few weeks of her leave, a new executive officer was appointed who had responsibility for a major “streamlining” of the “executive office.” A major realignment of positions was completed during Rogers’ leave, and she was assigned a different position without loss of pay or benefits. However, she no longer managed employees, but performed high level human resources tasks. She was very upset upon returning to work, and she resigned her job, and retired, on the day she was to be transferred into her new position. She claimed that the transfer into a non-comparable position “interfered” with her CFRA rights and was also“retaliation” against her for using those rights.

The jury found for Rogers, awarding total damages of $356,000.00. The Court of Appeal took a very unusual approach to this case. It overturned the verdict, finding that there was “no substantial evidence” to support the verdict as a “matter of law.” The reasoning of the court was quite simple: The FMLA/CFRA provides 12 weeks protection, and only 12 weeks. If the employee does not return to work within those 12 weeks, the rights disappear.

This use of terminology “interference” and “retaliation” can be confusing. I have not seen a case which clarifies the difference. It may be that the difference is in the degree of superficial compliance with the leave statute. If the employer technically complies with the statutory leave requirements, and returns the employee to the same position within the 12 weeks of accorded leave, but then fires, demotes, or cuts the pay of the employee some time after she returns to work, that sounds like retaliation for use of leave.

“Interference” with the use of leave impresses me as occurring during the time when the leave is being exercised, as when a defender is charged with “pass interference” during a play in progress as the receiver is about to catch the football. Indeed, in the Rogers decision, the employee argued that there was interference because the realignment of her position was a decision reached during the time she was using her medical leave rights. Of course, the Court did not accept this argument as a “matter of law” because she received the full 12 week leave, and did not return to work for an additional 7 weeks.

A clearer example of “interference” might be when the employer fails to maintain the employee’s insurance benefits during the leave. Another example is when the employer demands medical information in excess of the basic information outlined by the statutes, or when the employee insists that the employee perform services while disabled. A more patent “interference” would occur if the employer harasses or hypercriticizes the employee with communications to the employee while the employee is on leave.

The Rogers Court of Appeal did not state that the use of 12 weeks leave, with protection, extended by 7 weeks without statutory protection, could not as a matter of law, result in a cause of action for “retaliation” because the employee used the 12 weeks of leave. That result would be strange. For example, the County of Los Angeles had a short term leave policy that operated to allow leave beyond the 12 weeks of FMLA/CFRA protection, and Rogers used it. Her managers did not have the option of firing her because she was disabled beyond the FMLA/CFRA leave. One can easily imagine that a manager would be vindictive toward Rogers because she had been out of work for so long, and retaliated against her because she used her FMLA/CFRA 12 weeks of leave, as well as her extended County of LA short term disability leave.

The timing of the retaliation will very often be only after the employee has returned to work, and it will sometimes be the case that a company or government agency has a short term disability leave policy that allows the employee to return to work even after the 12 weeks of FMLA/CFRA leave. The Rogers Court analyzed the evidence for retaliation, impliedly agreeing that the evidence was relevant even to a situation when the employer allows the employee to return to work after the 12 weeks has expired. In Rogers, the Court found the evidence for retaliation lacking, while the employer’s evidence for elimination of Rogers' position was abundant.

In summary, the Rogers decision holds that generally, FMLA/CFRA protections end for all purposes if the employee is released to return to work only after 12 weeks, but a more careful reading of the case indicates that a retaliation claim can still be made in situations where the employer allows the employee to return to work after the 12 weeks has expired. That may not seem likely, but it actually is very possible. A company may have a short term disability policy that allows return to work beyond 12 weeks, and a particular manager in the company may nonetheless have a vendetta against the employee because she used the 12 weeks of leave. That would be illegal retaliation under the Act.

You & all of us owe $40,000 each.

2011-08-22T13:43:00.001-07:00

If you spend $1 million a day for a million days [about 2,740 years, according to Wolfram Alfa], you'll reach $1 trillion, American University mathematician John Nolan told Reuters in 2006. To spend $1 trillion in the average American life span of 77 years, you will have to shell out about $35,580,857 every day.

Time magazine put it this way in 2009: "When trying to comprehend a trillion-dollar deficit, you might calculate how much money that represents per person in the U.S. One trillion dollars divided by 300 million Americans comes out to $3,333."

What Did Guru Say to N.Y. Hot Dog Vendor? "Make Me One With Everything."

2011-08-20T10:02:00.001-07:00

An excerpt from: Grayson, Henry (2004-03-08). Mindful Loving (p. 42). Gotham Books. Kindle Edition.

“Similarly, the Nobel Prize-winning physicist Erwin Schrödinger, in Mind and Matter, spoke of there being not millions of separate minds, but just one mind in the universe:

Consciousness is never experienced in the plural, only in the singular. Not only has none of us ever experienced more than one consciousness, but there is no trace of circumstantial evidence of this ever happening anywhere in the world. . . . Mind is by its very nature a singulare tantum. . . . The overall number of minds is just one.

David Bohm recognized the error in the way we typically view the world and ourselves in it when he said, “Perhaps there is more sense in our non-sense, and more nonsense in our sense than we would dare to believe.” We might therefore conclude that our tribe’s commonly accepted concept of separateness is actually part of the “non-sense,” in what we usually call sense. (We will go into more depth about the relevance of new physics to healing our relationship problems later in this chapter.)

And the philosopher Aldous Huxley concluded from his studies of Western science and Eastern philosophy that “oneself as a separate ego enclosed in a bag of skin is an hallucination which accords neither with Western science nor with the experimental philosophy and religions of the East.”

Just the suggestion that we may not be separate selves makes most people quite anxious. But Albert Einstein had a profound awareness of our gross misunderstanding of who and what we are, and suggested a possible solution:

A human being is part of the whole that we call the universe, a part limited in time and space. He experiences himself, his thoughts and feelings, as something separated from the rest—a kind of optical illusion of his consciousness. This illusion is a prison for us, restricting us to our personal desires and to affection for only the few people nearest us. Our task must be to free ourselves from this prison by widening our circle of compassion to embrace all living things and all of nature.

From: Grayson, Henry (2004-03-08). Mindful Loving (p. 42). Gotham Books. Kindle Edition.

CA Supreme Court Rules Medical Damages in P.I. Cases Measured by Insurance Paid, not Insurance Billed.

2011-08-19T16:39:00.001-07:00

You are in a car accident. You have medical bills. You file a lawsuit. You present proof of your medical expenses. You have two sets of data: the amounts billed by the medical providers and the amounts paid by the insurance carrier. Which is the correct measure of your damages? That is, what is the amount the jury will be allowed to hear as your real cost? The CA Supreme Court ruled on August 18, 2011 that the correct measure is the amount negotiated and concluded as the agreed payment, whatever might be the billing.

The reasoning is that insurance companies set standard values for payment of medical services. Providers routinely inflate their billings hoping to eventually negotiate a higher approved rate. The number has a certain ficitional quality to it. Yes, it's a bill, but often the provider accepts the insurance payment as full payment. Industry experts estimate that the annual difference in personal injury damage claims will be about $500 million to $2.8 billion. California is in the minority in capping damages in this manner.

The case in question is Howell v. Hamilton meats & Provisions, Inc. 2011 DJDAR 12533, and involved review of a trial court decision to cut billings of $190,000 to $60,000, that is, the amount actually paid by insurance. The 4th District Court of Appeal reversed the trial court, stating the correct amount was $190,000. The Supreme Court reversed the Court of Appeal, returning the amount to $60,000. The implications of this decision for P.I. cases will be not just the payment of medical expenses, but also the calculation of personal injury "pain and suffering" damages, which has a relation to the medical and other economic losses.

U.N. Human Rights Commission States Syrian Govt. Murdering Protestors.

2011-08-18T21:08:00.001-07:00

Recent CA Decisions Hold that Unlicensed Professionals in Law and Accounting Are Not Entitled to Overtime If Performing Professional Work.

2011-08-18T14:50:00.001-07:00

In 1995, I defended an attorney-employer who was sued by his law clerk for overtime pay. The law clerk won at the hearing before the Labor Commissioner, and my client appealed the case. The trial judge hearing the case “de novo,” announced his belief that the law clerk was “exempt” from overtime. The law clerk wisely decided to settle.

I thought of this old case today as I read a decision of a recent California Court of Appeal decision holding that a law clerk awaiting the bar results is exempt from overtime if performing the usual law clerk duties of preparing pleadings, responding or initiating discovery, and making or opposing motions. A law clerk of course is not a licensed attorney, and cannot sign pleadings, appear in court, or provide legal advice.

The case is: Zelasko-Barrett v. Brayton-Purcell, LLP 2011 DJDAR 12500 (filed Aug. 17, 2011). [“Barrett”]. In Barrett, the employee/law clerk argued that the “professional” exemption did not apply to him because he was not yet a licensed attorney at the time of performing the allegedly exempt services. The employer conceded that the law clerk was not licensed as a professional but argued that the exemption applied under Cal. Code Regs. Tit. 8, Sec. 11040(b). This regulation is a “wage order” promulgated by the California Industrial Wage Commission (IWC). The wage order has two classes of exempt “professional” employees: (a) those who are licensed professionals and (b) those who are “primarily engaged in an occupation commonly recognized as a learned or artistic profession.” It is the second category that won the case for the employer/law firm in the Barrett case.

The further definition of a “learned profession” found in the wage order is that the work performed must rely on “knowledge of an advanced type in a field or science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from a general academic education and from an apprenticeship, and from training in the performance of routine mental, manual or physical processes, . . .” The Court of Appeal affirmed the trial court’s grant of summary judgment for the law firm / employer based on this definition.

In part, the Court followed the decision in Campbell v. Pricewaterhouse Coopers, LLP (E.D.CA 2009) 602 F. Supp.2d 1163, 1172, revd. (2011) 642 F.3d 820. [“Campbell”] In Campbell, the court held that “attest associates” who were unlicensed assistants to C.P.A.s, were exempt even though not licensed accountants because of the level of study, education, and work they performed. The Court found the Campbell case reasoning applicable to the work customarily performed by law clerks awaiting their bar results.

What do the Barrett and Campbell Decisions have to say about paralegals? Of course, the decisions do not address that question, but the reasoning of the decisions leaves open the question of whether some paralegals performing high level tasks similar to that of a law school graduate performing law clerk duties as did Zelasko-Barrett might also be found to be exempt under subsection (b) of Section 11040. The actual duties performed, and the discretion accorded in the performance of those duties will likely be a critical part of the analysis. As the Zelasko-Barrett decision noted, the “subpart (b)” exemption raises numerous questions that will be addressed case by case. At one part of the Barrett decision, the court noted that other decisions, relying on an opinion letter by the Labor Commissioner, have held that paralegals are not generally exempt because they do not satisfy the academic requirements of “subpart (b)” to qualify as exempt. I think the question will be addressed by how long the employee studied in a particular paralegal certification program to become a certified paralegal, and the depth and duration of the study, as well as the level of responsibility and sophistication of work expected of the paralegal. Clear at this point is that supervision of the paralegal’s work by an attorney will not of itself disqualify the paralegal from being classified as exempt. The paralegal seeking overtime will have to argue that “paralegal school” is not the kind of advanced academic, specialized education, contemplated by either Campbell or Barrett. The Barrett decision seems to accept the distinction when it distinguishes paralegals from law clerks by noting that law clerks have completed law school.

In future battles concerning the “learned profession” exemption, the focus will likely be on the employee’s “advanced course of study,” the sophistication of the study, the duration of the study, the specialization of the study” and then the degree of complexity, autonomy, and discretion used by the employee in applying his or her “specialized learning.”

Making Marketing Fun.

2011-08-18T13:10:00.001-07:00

I'm taking a series of webinars from Michael Port, of "Book Yourself Solid." One of the fundamental concepts is that marketing can be a positive experience if it is viewed as a way of supporting the lifetyle you want to live. This holistic approach is therefore not just about money, but a balancing of values: economic, mental, spiritual, emotional and relational. Marketing, in my view, is an opportunity to creatively connect with persons who need or want the value I offer.

I am foremost a lawyer, but my practice of law, and the way I want to run my business, all depend on clients connecting with me for help. Marketing supports the positive impact I want to make in my profession. I deliver closure of a distressing employment situation for terminated or harassed employees. Employees need to know their legal rights, and if there is a realistic way to reach a settlement or verdict that addresses those rights. Marketing is my way of letting those persons know I exist, and that I provide the solutions they are seeking.

In a positive sense, marketing is a byproduct of a passion to make a postive difference in your world, and is not limited to business.

"Some cause happiness wherever they go; others, whenever they go." ---- Oscar Wilde

2011-08-18T12:51:00.001-07:00

Getting Back Up on the Bike.

2011-08-14T11:29:00.001-07:00

I fractured my elbow several months ago in a cycling crash. The physical healing completed, but the enthusiasm for cycling subsided. Yesterday, the air was clean, fresh and cool on an overcast summer day. I dug out the old route maps I collected from riding with the Irvine Bicycle Club. I was looking for a short route to reintroduce myself to the idea of riding. I wanted to ride alone, at my own pace, in my own thoughts. I finally found a 15 mile route. I did my standard checklist: sunscreen, water, helmet, gloves, shoes, spare tires, pump, air pressure, identification, cash, sunglasses, shorts and jersey--the routine itself was like a priest preparing for Mass--a ritual of necessary items.

Finally, I was on the road, and for the next 3 hours, I just was in the process of cycling. For me, part of cycling is simply the level of attention needed to stay reasonably safe--basic matters like not tumbling over in front of vehicle, and anticipating a car that is emerging from an intersection or driveway. In the end, I felt like an old warrior who had returned to the battlefield. Others may see cycling in more rhapsodic terms of exuberance and pleasure. I view it as an objective: miles covered, problems overcome, and injuries avoided. They say that golf reveals a man's character. It is disturbing to think cycling may reveal mine.

Court Rules Employee May Introduce Evidence that Boss Harassed Other Women Before She Was Hired.

2011-08-11T19:38:00.001-07:00

Pantoja v. Anton (Aug. 9, 2011) 2011 DJDAR 11962.

A recent California Court of Appeal decision provides an in-depth look at the evidentiary battles that occur in the trial of a gender discrimination and harassment case. This decision is a powerful tool in the hands of employee attorneys, seeking to use “me too” evidence to support the circumstantial case for “hostile work environment.” “Me too” evidence is testimony by other persons that they too experienced the discrimination and harassment the plaintiff alleges happened to her.

The case was one for gender based hostile work environment. After the trial judge excluded much of the testimony of witnesses for the Plaintiff, the jury returned a defense verdict. The Plaintiff appealed, and the Court of Appeal, Fifth Appellate District [Kern County] reversed unanimously.

This is a long decision, but worth reading every page. The essential battle was that the plaintiff, Lorraine Pantoja [“Pantoja”] wanted to present testimony of other women who worked for the employer before she did, and who experienced words and behaviors similar to what she experienced. The defendant, an attorney named Thomas J. Anton [“Anton”] wanted to keep out all evidence of his alleged remarks or behavior except those occurring during Pantoja’s employment.

Pantoja argued that the testimony was to be admitted because it showed Anton’s continuing behavior and intent to treat her badly, and his hostility toward women generally. Pantoja also argued that because Anton had testified at trial that he generally did not direct hostile gender biased statements toward women , he thereby had opened the door to that line of questioning, and that Pantoja should be allowed to impeach his testimony with that of women who had worked there before her.

The trial court in this case was itself leaning heavily for the defense, with rulings that consistently adopted , and even reaffirmed, the theory of the defense that Anton was vulgar, but that his remarks were not directed at women any more than at men. The defense theory was also that Anton’s use of cursing and vulgarity was directed at the situation rather than the individuals involved in the situation. That is, the defense was that the vulgarity was not evidence of gender bias.

Despite the defense, Pantoja presented evidence that Anton called her and other employees working with her “f---ing bitches.” Anton, without dispute, used the F-word routinely at work, and frequently when angry, which was often. But he combined the word with “bitch” when addressing women. Pantoja testified to Anton called her, on frequent occasions, “stupid bitch,” or “f---ing bitch”. Her co-employees testified they overheard such references, and several testified the language was directed at them as well.

When the trial judge excluded the testimony of women who would offer “me too” testimony, Pantoja make a written offer of proof in the form of written declarations of the women. The court refused to back away from its previous ruling. The number of women ready to testify, but excluded by the trial court, were at least 4 or 5 in number. After the trial, at least one juror stated that it would have made a difference in their verdict to know that there was a history of hostility toward other women.

The trial court instructed the jury that vulgar talk is not evidence of harassment (hostile work environment) unless it is directed to the plaintiff specifically because of her gender, or to women in general. This instruction, ruled the Court of Appeal, is proper, but cannot stand alone. It requires additional clarifying instructions that vulgar language, if directed to the plaintiff, or toward women generally, can be evidence of gender based harassment.

This case covers some important “battle ground” rules of evidence that will invariably occur during trial:

1) 1) The “me too” testimony of other women is admissible on an offer of proof that it is used to show a motive or intent by the harasser in harassing the plaintiff. See Evidence Code Section 1101(b), or to attack the credibility of the witness. See Evidence Code Section 1101 (c).

2) Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4^th 264, 295 [Lyle] was distinguished by this Court of Appeal on the basis of different facts. In Lyle, the vulgarities, even if personally offensive to the plaintiff, were not directed to her or to women in general, but were part of the creative environment of a production company that worked with adult sexual scripting. The plaintiff in Lyle understood that when she took the job, and elected to work in that environment. Anton’s remarks in contrast were not general or situational only, but were aimed at Pantoja personally and women generally.

3) “Me too” testimony can also be admitted to show a “pattern and practice” of gender discrimination or harassment, citing Estes v. Dick Smith Ford, Inc. (8^th Cir. 1988) 856 F.2d 1097, 1102-1104.

4) The Court of Appeal cited Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4^th [“Johnson”], which itself relied on the Estes decision, in writing the following: “The Estes court observed that a wholesale exclusion of such evidence ‘can be especially damaging in employment discrimination cases, in which plaintiffs must face the difficult task of persuading the fact-finder to disbelieve an employer’s account of its own motives’ (Estes, supra, 856 F.2d at p. 1103).

5) The use of in limine motions to exclude evidence because the evidence is so little or insubstantial to prove a case [i.e., a “cause of action”] is improper. Specifically, the Court of Appeal held that the proper time and procedure for such a ruling is on a motion for summary judgment. A motion in limine is limited to rulings on matters of relevance or undue prejudice of the anticipated testimony.

6) The Court of Appeal makes provides a very good lesson on “leading questions.” A leading question is one that suggests the answer to the person being interrogated. The court stated in a footnote: “A question with a yes-or-no answer can be leading . . .but is not necessarily so. “Did he call you a bitch?” calls for a yes-or-no answer, but does not suggest that “yes” is the right answer.” [See footnote 5 of the decision].

In summary, both plaintiff and defense attorneys are advised to read this decision carefully because it provides a very “real world” look at the rough and tumble world of the trial court, when judges, making a wrong decision early in the case, can thereby cripple the opportunity of one of the parties to present his evidence for the balance of the trial. The counsel for Plaintiff Pantoja was especially persistent and careful in making offers of proof, and in preserving the record. Undoubtedly, counsel knew the trial judge was favoring the defense, and that the jury would find for the defense because denied the opportunity to hear evidence relevant to a pattern of continuing conduct by defendant Anton. We have all been there: there is sometimes nothing left to do but make sure your preserve your record for appeal.

As an interesting aside, Defendant Anton, who was an attorney, testified that he had litigated sexual harassment cases for both plaintiffs and defendants, and had provided sexual harassment trainings. As you read the case, you will see Anton’s personality emerge: a belligerent, hostile, demeaning, and abusive boss with a volatile temper.

The Whitman of the Working Class: Philip Levine, Our New Poet Laureate. "An Extraordinary Morning"

2011-08-11T14:00:00.001-07:00

The following is excerpted from the N.Y. Times and the Poetry Foundation :

August 11, 2011, 12:20 pm

Poetry Pairing | Celebrating Philip Levine

By KATHERINE SCHULTEN

Jim Wilson/The New York TimesPhilip Levine, 83, at home in Fresno, Calif., grew up in Detroit, where he held a long series of blue-collar jobs. Go to related article »

We interrupt our regularly scheduled Poetry Pairing today to celebrate the fact that Philip Levine, who writes “big-hearted, Whitmanesque poems about working-class Detroit,” has been named the next poet laureate.

This week we pair a poem of Mr. Levine’s, “An Extraordinary Morning,” with a piece by Dwight Garner, a book critic at The Times, about Mr. Levine’s work.

And we have further news: For the coming school year, we’re going to be tweaking this feature a bit.

We’ll still publish a weekly poem chosen by the Poetry Foundation paired with a Times article that echoes, extends or challenges the poem’s themes, but this year we’re going to mix up the selection of poems.

Starting on Aug. 18, each week we’ll begin alternating classic poems, the kind that appear in literature anthologies, with lesser-known contemporary poems.

We’re doing this because we want to impress upon students that the poems that have been taught in English class for eons still have something to say to us today — but we also want to introduce young people to new poems and poets.

We invite you to bring your classes to comment on our choices, as these students did recently. As always, we’d also love to know what you think about the changes. Please tell us here.

And now, today’s Poetry Pairing:

Poem

Philip Levine, just named the next United States poet laureate, writes poetry that speaks to and for everyday folks. His poetry has been noted for its realism and use of everyday speech. “An Extraordinary Morning” introduces readers to two hardworking twin brothers.

— Poetry Foundation

An Extraordinary Morning
By Philip Levine

Two young men — you just might call them boys —
waiting for the Woodward streetcar to get
them downtown. Yes, they’re tired, they’re also
dirty, and happy. Happy because they’ve
finished a short work week and if they’re not rich
they’re as close to rich as they’ll ever be
in this town. Are they truly brothers?
You could ask the husky one, the one
in the black jacket he fills to bursting;
he seems friendly enough, snapping
his fingers while he shakes his ass and sings
“Sweet Lorraine,” or if you’re put off
by his mocking tone ask the one leaning
against the locked door of Ruby’s Rib Shack,
the one whose eyelids flutter in time
with nothing. Tell him it’s crucial to know
if in truth this is brotherly love. He won’t
get angry, he’s too tired for anger,
too relieved to be here, he won’t even laugh
though he’ll find you silly. It’s Thursday,
maybe a holy day somewhere else, maybe
the Sabbath, but these two, neither devout
nor cynical, have no idea how to worship
except by doing what they’re doing,
singing a song about a woman they love
merely for her name, breathing in and out
the used and soiled air they wouldn’t know
how to live without, and by filling
the twin bodies they’ve disguised as filth.

Is Your Heart Broken? Here Is An Opportunity To Receive Healing and Hope. anaheim.harvest.org

2011-08-11T13:50:00.001-07:00

Dear Frank ,

Well, the 2011 Anaheim Harvest is just over 24 hours away, and we are working around the clock to get everything in place! Currently the stage frame is built, and they are putting together all the electronic components now—audio, lighting, video, internet. Thank the Lord for all these volunteers who are working tirelessly to help get everything done before Friday night!

You too, can be part of our "Get-Ready" Crew by:

Sharing the event on Facebook
Praying for the person you are bringing.
Praying every time you see or hear the mention of Anaheim Harvest!

You can also keep up-to-date over the weekend by:

Following @harvest_org and @greglaurie on Twitter.
Visiting the Anaheim Harvest Blog.
Signing up for email updates.
Watching online at anaheim.harvest.org, if you can't attend in person.

To hear Pastor Greg's heart on evangelism and this weekend's event, listen to his special ANB interview.

Just In: Bethany Hamilton will be Greg's special guest on Friday night. Bethany made national news headlines when she survived a shark attack, losing her arm. She went on to become a world-champion surfer with the help of her faith and family. Bethany's story is featured in the recently released movie, "Soul Surfer."

Court Limits Rights of Undocumented Workers to Collect Damages for Firing.

2011-08-10T13:57:00.001-07:00

Undocumented workers may not collect damages for discrimination in refusing to hire or discrimination in firing if the worker has knowingly used a false social security number, and if the employee presents no evidence that the employer routinely hired undocumented workers knowing their identifying information to be false.

Also, the California Court of Appeal held that Senate Bill 1818 did not create a special exemption for undocumented workers to bring wrongful refusal to hire or wrongful termination claims. The Court held Senate Bill 1818, in making undocumented status irrelevant to the enforcement of the anti-discrimination laws, simply reaffirmed existing case law holdings. Those cases held generally that an undocumented worker could collect for unpaid wages, harassment, and other wrongs committed during the employment, but could not collect for damages for prospective earnings because of refusal to hire, or “back pay” because of alleged wrongful termination.

California Senate Bill 1818 specifically makes irrelevant a worker's immigration status to matters of discovery during litigation. That is, the employer may not require the employee in the lawsuit to disclose his undocumented status. This recent decision places that prohibition in question where the employee is an undocumented worker claiming wrongful termination. I infer from the decision if the employee is not claiming wrongful refusal to hire, or wrongful termination, but is limiting his or her claims to matters arising during the employment, such as unpaid wages or harassment, then the protections of SB 1818 would apply.

The basis of this article is the case of Salas v. Sierra Chemical Co. 2011 DJDAR 11941 (filed Aug. 9, 2011). The case is decided on the principles of the so-called “after acquired evidence rule” and the equitable principle of “unclean hands.” Both principles operate as defenses to claims for damages where the employer discovers after after the employee is fired (or not re-hired after a seasonal layoff) that the employee violated a company rule or policy. The employer must prove that the employer, if knowing of the violation, would not have hired the individual, or would have fired the individual immediately. Damages are cut off from the date the employer makes the discovery--hence, the phrase “after acquired evidence rule.”

I Just Provided an Interview with a Reporter for the Los Angeles Daily Journal Concerning Social Media Privacy Rights

2011-08-10T12:11:00.001-07:00

The Los Angeles Daily Journal is a newspaper covering legal issues in multiple areas of the law, and general articles of interest to the legal community. #mce_temp_url#

Free iPhone App by U.S. Dept. of Labor will track your time for you when your employer cannot or will not.

2011-08-09T16:26:00.001-07:00

Is your employer failing to keep accurate time records as required by law, or using a phoney time tracking method to short you on pay? iTunes offers an App for the iPhone throught the U.S. Department of Labor to solve that problem. Track your own time to hold your employer accountable, and get the pay you earn. Go to you iPhone App Store App, and enter the search term "Department of Labor" to get to this free app.

Department of Labor Press Release

WASHINGTON — The U.S. Department of Labor today announced the launch of its first application for smartphones, a timesheet to help employees independently track the hours they work and determine the wages they are owed. Available in English and Spanish, users conveniently can track regular work hours, break time and any overtime hours for one or more employers. Glossary, contact information and materials about wage laws are easily accessible through links to the Web pages of the department's Wage and Hour Division.

Additionally, through the app, users will be able to add comments on any information related to their work hours; view a summary of work hours in a daily, weekly and monthly format; and email the summary of work hours and gross pay as an attachment.

This new technology is significant because, instead of relying on their employers' records, workers now can keep their own records. This information could prove invaluable during a Wage and Hour Division investigation when an employer has failed to maintain accurate employment records.

"I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled," said Secretary of Labor Hilda L. Solis. "This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

The free app is currently compatible with the iPhone and iPod Touch. The Labor Department will explore updates that could enable similar versions for other smartphone platforms, such as Android and BlackBerry, and other pay features not currently provided for, such as tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

For workers without a smartphone, the Wage and Hour Division has a printable work hours calendar in English and Spanish to track rate of pay, work start and stop times, and arrival and departure times. The calendar also includes easy-to-understand information about workers' rights and how to file a wage violation complaint.

Both the app and the calendar can be downloaded from the Wage and Hour Division's home Web page at http://www.dol.gov/whd. For more information about federal wage laws or to order a calendar by mail, call the division's toll-free helpline at 866-4US-WAGE (487-9243).

Employees Fired for Posting Negative Info about Employer Protected If "Workplace Conditions" is the Subject.

2011-08-09T13:49:00.001-07:00

The National Labor Relations Board is concluding an employer cannot fire an employee because he or she posts on Facebook if the posting is about employment relations and working conditions----but don't interpret this protection as a license to state any false or derogatory information whatever. #mce_temp_url#

Ten Random Ways Your Facebook Postings Will Bite You in Litigation.

2011-08-08T18:44:00.001-07:00

1. You say you're so injuried you've lost all enjoyment of life. Your recent video shows you bungie jumping and doing gymnastics.

2. You claim you're unemployed and unemployable, but brag about your recent big deals as an entrepreneur.

3. You say you want custody of the kids, but list yourself as "Single" and "Without Children."

4. You claim to be a stable, good parent, but your page is filled with images showing wild drinking and pot parties, and you in compromising positions.

5. You claim to be unable to pay spousal support, but your photos show you in your new Ferrari, and at various posh vacation sites.

6. You brag about how you are going to get a million bucks in your lawsuit by your creative exagerrated stories of injury and loss.

7. You admit you're scared to death, and will settle for almost nothing just to get out of the case.

8. You are patently flirtatious and seductive during a time when you alleged to be totally traumatized by sexual harassment. You post coarse sexual language and extend explicit sexual invitations when you claim to be extremely sensitive to much milder statements made to you at work.

9. You disclose confidential work information and trade secrets.

10. You belittle your company and your show bold and unrestrained contempt for your boss.

Postscript:

Generally, California's Electronic Discovery Act (effective June 29, 2009), amended the CA Discovery Act to provide for procedures for litigants to acquire "Electronically Stored Information." See C.C.P. Sec. 2016.020.

The five questions to ask when seeking any admissible evidence are:

1. Is it relevant?

2. Can it be authenticated?

3. If offered for the truth of the matter conveyed by the posting, is there a hearsay exception that will allow admission?

4. Can you access the original or will "secondary evidence" suffice?

5. Is the proferred evidence too prejudicial to be admitted when weighed against its "probative value?"

See: Lorraine v. Market American Ins. Co., 241 F.R.D. 534 (2007).

Two Immediate Steps I Take with a New Client: a) Shut Down Your Social Media Accounts; 2) Request the Employer to Preserve Texts & Emails.

2011-08-08T16:02:00.001-07:00

The Employer Will Likely Google You, and Will Likely Seek A Co-Employee "Friend's" complicity (oh, I mean cooperation) to view your postings. The employer will troll for inconsistencies, and for independent reasons to discipline you. Stop posting. Delete offensive or revealing postings about your employment (or job search efforts or employment history)even before seeing an attorney, or commencing a litigation. (It's just good sense, and it avoids problems later should you be fired or harassed). I am contemplating asking that the employer ask its supervisors and managers having contact with my client to produce their social media content that may bear on the issues. After all, the "social media" sword is dangerous at both edges.

Secondly, cases have held that when an employer is placed on notice of a likely litigation, on request, the employer must take steps to ensure that e-data relevant to the issues of the litigation are not erased. Emails and texts can be a "goldmine" of admissions and insights to a manager's real attitude and intent.

There are "privacy issues" associated with seeking discovery of social media postings, but those can be overcome in California by complying with the Code of Civil Procedure requirement that employee's be given detailed notice and opportunity to object that their postings are being sought. The attorneys can help in the process by limiting the scope of their subpoenas to describe the specific postings being sought by date, general content, and author, and by making sure the described content found in the subpoena is highly relevant to the issues.

Drama, Conflict, Despair & Victory at Work

Bullies at Work: How to Respond.

TORTS PROFESSOR, DEFEND THYSELF

Is Your Boss a Psychopath?

Baby Bonding Rights--Dad's Have Rights Too!

When Does an Employee Lose His Right to Privacy of Mobile Phone Calls?

A Special Christmas Present From My New 83 Year Old Friend.

Stopping Middle School Bullies: Principals Must Wake Up to the Principles of Civil Rights!

The Case for Class Actions Against Age Discrimination in a Depressed Economy

ADA: Accommodation of Work; Not Accommodation of Qualifications to Work

A heart a day

An Employee Rights Lawyer Suggests Ways to Put Him Out of Business

Lawyer-Poet, Nay Poet-Lawyer Wallace Stevens: of "Moral Law" & "The Opposing Law"

A High-Toned Old Christian Woman

Creating a Network of Positive Relationships Focused on a Common Mission.

RUNNING WITH THE PUPS [John Vrba Story]

Put ‘em in the Stocks; Brand ‘um; Give ‘um a Scarlet Letter

What is your LSSMS [Law School Social Media Score]?

Meet Your New Apple Virtual Personal Assistant: SIRI Interview.

David v. Goliath: Going Outside the "Rules" to Find a Winning Strategy.

ANNALS OF INNOVATION

HOW DAVID BEATS GOLIATH

When underdogs break the rules.

by Malcolm GladwellMAY 11, 2009

ILLUSTRATION: ZOHAR LAZAR

"Great minds discuss ideas. Average minds discuss events. Small minds discuss people." Eleanor Roosevelt

Eleanor Roosevelt

Eleanor Roosevelt on Human Rights:

There Are Lies, Damned lies, and Statistics: Proof in Wage & Hour Class Actions

Place a Brain in the Brainstorm. Slugs can acquire new mugs, & become innovative pugs.

Random Quotes about Law and Lawyers.

Social Network Postings Are Likely Discoverable in Litigation.

Real Unemployment Is 16.5%

L.A. Superior Court Pilot Program Settles Employment Law Cases.

Cheerleader Refuses to Cheer Alleged Sexual Assault Players & Is Silenced by School.

Even if you're on the right track, you'll get run over if you just sit there. Will Rogers

Of Politicians: They accomplish nothing, but claim the success of others as their own..

Prolonged Slump Hits 20 & 30 Somethings Hardest: 10 years of Career Drag Predicted.

No Fear of Justice

Eating Disorder Treatment [Anorexia] Must Be Covered By Insurance Co. in Parity with Coverage for Physical Injury.

Family Friendly Economy? Parents Struggle to Pick Up Kids from Daycare.

“Bushes as Latrines”: Ninth Circuit Rules Day Laborers May Not Be Kept From Gathering.

Every Vice is A Twisted Virtue: The Weaknesses of a Compulsive Achiever.

My Life as a Lawyer Nerd: How I Improved My Social Intelligence

Creative Issue Spotting: The Birth of An Employment Law Case.

Record Attendance at My Professional Section of the Bar: Labor & Employment Law

Wise, or only Wizened?

Creative Limits: Lawyers as Musicians of the Law

Update: Gay Marriage Status in California: I predict U.S. Supreme Court Will Uphold Prop 8.

Jerry Brown Violated His Oath of Office in Failing to Appeal a U.S. District Court's overturning of Prop. 8 in CA defining "marriage."

The Longer You're Unemployed The More Likely You'll Remain Unemployed. Another Happy Thought.

Lawyer Faces Up To 30 Years for Coaching Witness to Lie

Trigger Happy Employers Using “Remote Kill” to Erase Employee Devices Violate Federal Law.

Discrimination Lawyers Can "SLAPP" Back When Employers Seek to Intimidate with Cross Complaints.

California Attorneys Await Supreme Court Ruling on Whether Employers Must Proactively Enforce Break Time Rules.

It's Time for Congress to Reverse the Ill-Effects of U.S. Supreme Court Decision in "Concepcion."

Class Actions by Employees May Not Be Aborted after "Concepcion" if NLRB finds filings are "concerted activities."

In Business, Who You Are Is As Important As What You Do: Owner Embraced by His Community.

Great Local Jurist Is Gone: Justice David Sills, CA Court of Appeal, Fourth Appellate District

Treasury & Fed Are Out of Tricks.

Here Today, Gone in Twelve Weeks: Recent Case Further Defines FMLA Rights.

You & all of us owe $40,000 each.

What Did Guru Say to N.Y. Hot Dog Vendor? "Make Me One With Everything."

CA Supreme Court Rules Medical Damages in P.I. Cases Measured by Insurance Paid, not Insurance Billed.

U.N. Human Rights Commission States Syrian Govt. Murdering Protestors.

Recent CA Decisions Hold that Unlicensed Professionals in Law and Accounting Are Not Entitled to Overtime If Performing Professional Work.

Making Marketing Fun.

"Some cause happiness wherever they go; others, whenever they go." ---- Oscar Wilde

Getting Back Up on the Bike.

Court Rules Employee May Introduce Evidence that Boss Harassed Other Women Before She Was Hired.

The Whitman of the Working Class: Philip Levine, Our New Poet Laureate. "An Extraordinary Morning"

Poetry Pairing | Celebrating Philip Levine

Poem

Is Your Heart Broken? Here Is An Opportunity To Receive Healing and Hope. anaheim.harvest.org

Court Limits Rights of Undocumented Workers to Collect Damages for Firing.

I Just Provided an Interview with a Reporter for the Los Angeles Daily Journal Concerning Social Media Privacy Rights

Free iPhone App by U.S. Dept. of Labor will track your time for you when your employer cannot or will not.

Employees Fired for Posting Negative Info about Employer Protected If "Workplace Conditions" is the Subject.

Ten Random Ways Your Facebook Postings Will Bite You in Litigation.

Two Immediate Steps I Take with a New Client: a) Shut Down Your Social Media Accounts; 2) Request the Employer to Preserve Texts & Emails.