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

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. 

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

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]. 

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

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."

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.

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

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.

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.

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

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. 

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

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."

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.

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

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.

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

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.

Making Marketing Fun.

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

Getting Back Up on the Bike.

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.

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

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

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.

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. 

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

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.

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.

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.

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.

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.  

When Cross-Examining a Workplace Investigator, I Start with the EEOC Guidelines for an Adequate Investigation. Here they are:

Excerpts from the E.E.O.C.'s Guidelines for an Adequate Harassment Investigation [Found at:  EEOC GUIDELINES]:  

 

 

	NOTICE	Number
EEOC		915.002
		Date
		6/18/99

 

1. SUBJECT: Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors

 

 

Effective Investigative Process

An employer should set up a mechanism for a prompt, thorough, and impartial investigation into alleged harassment. As soon as management learns about alleged harassment, it should determine whether a detailed fact-finding investigation is necessary. For example, if the alleged harasser does not deny the accusation, there would be no need to interview witnesses, and the employer could immediately determine appropriate corrective action.

If a fact-finding investigation is necessary, it should be launched immediately. The amount of time that it will take to complete the investigation will depend on the particular circumstances.⁶⁸ If, for example, multiple individuals were allegedly harassed, then it will take longer to interview the parties and witnesses.

It may be necessary to undertake intermediate measures before completing the investigation to ensure that further harassment does not occur. Examples of such measures are making scheduling changes so as to avoid contact between the parties; transferring the alleged harasser; or placing the alleged harasser on non-disciplinary leave with pay pending the conclusion of the investigation. The complainant should not be involuntarily transferred or otherwise burdened, since such measures could constitute unlawful retaliation.

The employer should ensure that the individual who conducts the investigation will objectively gather and consider the relevant facts. The alleged harasser should not have supervisory authority over the individual who conducts the investigation and should not have any direct or indirect control over the investigation. Whoever conducts the investigation should be well-trained in the skills that are required for interviewing witnesses and evaluating credibility.

Questions to Ask Parties and Witnesses

When detailed fact-finding is necessary, the investigator should interview the complainant, the alleged harasser, and third parties who could reasonably be expected to have relevant information. Information relating to the personal lives of the parties outside the workplace would be relevant only in unusual circumstances. When interviewing the parties and witnesses, the investigator should refrain from offering his or her opinion.

The following are examples of questions that may be appropriate to ask the parties and potential witnesses. Any actual investigation must be tailored to the particular facts.

Questions to Ask the Complainant:

• Who, what, when, where, and how: Who committed the alleged harassment? What exactly occurred or was said? When did it occur and is it still ongoing? Where did it occur? How often did it occur? How did it affect you?
• How did you react? What response did you make when the incident(s) occurred or afterwards?
• How did the harassment affect you? Has your job been affected in any way?
• Are there any persons who have relevant information? Was anyone present when the alleged harassment occurred? Did you tell anyone about it? Did anyone see you immediately after episodes of alleged harassment?
• Did the person who harassed you harass anyone else? Do you know whether anyone complained about harassment by that person?
• Are there any notes, physical evidence, or other documentation regarding the incident(s)?
• How would you like to see the situation resolved?
• Do you know of any other relevant information?

Questions to Ask the Alleged Harasser:

• What is your response to the allegations?
• If the harasser claims that the allegations are false, ask why the complainant might lie.
• Are there any persons who have relevant information?
• Are there any notes, physical evidence, or other documentation regarding the incident(s)?
• Do you know of any other relevant information?

Questions to Ask Third Parties:

• What did you see or hear? When did this occur? Describe the alleged harasser’s behavior toward the complainant and toward others in the workplace.
• What did the complainant tell you? When did s/he tell you this?
• Do you know of any other relevant information?
• Are there other persons who have relevant information?

Credibility Determinations

If there are conflicting versions of relevant events, the employer will have to weigh each party’s credibility. Credibility assessments can be critical in determining whether the alleged harassment in fact occurred. Factors to consider include:

• Inherent plausibility: Is the testimony believable on its face? Does it make sense?
• Demeanor: Did the person seem to be telling the truth or lying?
• Motive to falsify: Did the person have a reason to lie?
• Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
• Past record: Did the alleged harasser have a history of similar behavior in the past?

None of the above factors are determinative as to credibility. For example, the fact that there are no eye-witnesses to the alleged harassment by no means necessarily defeats the complainant’s credibility, since harassment often occurs behind closed doors. Furthermore, the fact that the alleged harasser engaged in similar behavior in the past does not necessarily mean that he or she did so again.

Reaching a Determination

Once all of the evidence is in, interviews are finalized, and credibility issues are resolved, management should make a determination as to whether harassment occurred. That determination could be made by the investigator, or by a management official who reviews the investigator’s report. The parties should be informed of the determination.

In some circumstances, it may be difficult for management to reach a determination because of direct contradictions between the parties and a lack of documentary or eye-witness corroboration. In such cases, a credibility assessment may form the basis for a determination, based on factors such as those set forth above.

If no determination can be made because the evidence is inconclusive, the employer should still undertake further preventive measures, such as training and monitoring.

Assurance of Immediate and Appropriate Corrective Action

An employer should make clear that it will undertake immediate and appropriate corrective action, including discipline, whenever it determines that harassment has occurred in violation of the employer’s policy. Management should inform both parties about these measures.⁶⁹

Remedial measures should be designed to stop the harassment, correct its effects on the employee, and ensure that the harassment does not recur. These remedial measures need not be those that the employee requests or prefers, as long as they are effective.

In determining disciplinary measures, management should keep in mind that the employer could be found liable if the harassment does not stop. At the same time, management may have concerns that overly punitive measures may subject the employer to claims such as wrongful discharge, and may simply be inappropriate.

To balance the competing concerns, disciplinary measures should be proportional to the seriousness of the offense.⁷⁰ If the harassment was minor, such as a small number of “off-color” remarks by an individual with no prior history of similar misconduct, then counseling and an oral warning might be all that is necessary. On the other hand, if the harassment was severe or persistent, then suspension or discharge may be appropriate.⁷¹

Remedial measures should not adversely affect the complainant. Thus, for example, if it is necessary to separate the parties, then the harasser should be transferred (unless the complainant prefers otherwise).⁷² Remedial responses that penalize the complainant could constitute unlawful retaliation and are not effective in correcting the harassment.⁷³

Remedial measures also should correct the effects of the harassment. Such measures should be designed to put the employee in the position s/he would have been in had the misconduct not occurred.

Examples of Measures to Stop the Harassment and Ensure that it Does Not Recur:

• oral⁷⁴ or written warning or reprimand;
• transfer or reassignment;
• demotion;
• reduction of wages;
• suspension;
• discharge;
• training or counseling of harasser to ensure that s/he understands why his or her conduct violated the employer’s anti-harassment policy; and
• monitoring of harasser to ensure that harassment stops.

Examples of Measures to Correct the Effects of the Harassment:

• restoration of leave taken because of the harassment;
• expungement of negative evaluation(s) in employee’s personnel file that arose from the harassment;
• reinstatement;
• apology by the harasser;
• monitoring treatment of employee to ensure that s/he is not subjected to retaliation by the harasser or others in the work place because of the complaint; and
• correction of any other harm caused by the harassment (e.g., compensation for losses). 

 

See Also:  http://www.cela.org/materials/WorkplaceInvestigations.htm

Do You Work for an "Long Term Care" or "Nursing Home" Facility? Your "Residence" Hours May Be Overtime Work.

Federal wage Law ["FLSA"] provides that workers resident on the work premises and "on call" at all hours may be entiled to overtime for those hours if:  a)  the employer is an "institution primarily engaged in the care of the  . . .mentally ill or defective . . ."  See29 U.S.C. Sec. 203(r)(2)(A).  

Nursing home resident care workers are often not compensated properly under this statute.  Persons who are required to be resident with overnight sleeping accommodations may be entitled to overtime even when officially "off the clock" and within their "resident" quarters.   The potential "class action" case for a chain of such facilities is enormous.  

Frank Pray, Employee Rights Attorney

949-251-1006.  

I Am a Commissioned Salesperson with a Base Salary Guarantee. Do I Qualify for Overtime Pay?

In California, a commissioned salesperson who earns more than one-half of his or her compensation from commissions, either by flat fee per sale or as a percentage of each sale, is exempt from overtime.  That is, the employee does not qualify for overtime.  

I take the position that for each payperiod in which the employee does not earn one half of his or her compensation as commissions, the employee is entitled to overtime for that pay-period.  I argue too that the overtime rate is to be calculated as the total pay for that payperiod divided by 80 hours (2 working weeks of 40 hours each, without regard to total hours actually worked).  This hourly rate is then multiplied by 1.5 for each hour over 8 and under 12, and double time if over 12 in a day. [Federal law, unlike CA law, allows overtime only for more than 40 hours in a week].  

California Labor Code Section 204.1 and Cal. Code Regs, tit. 8, Sec. 11070.

Employees Need to Carefully Provide Enough Medical Info to Employers to Qualify for FMLA Leave.

A Ninth Circuit Court decision clarifies that the employee may be fired for unexcused abences from work even if actually having a "serious medical condition" if the employe fails to provide the employer enough information at the time of requesting the leave.  

In Lewis v. U.S.A. (9th Circ. 2011) 2011 U.S. App. LEXIS 10576, the Court interpreted 5 U.S.C. Sec. 6383(b) to require the employee to obtain and submit not only the treating doctor's diagnosis, and statement of need for treatment, incliuding time off from work, but also the specific medical facts that supported the diagnosis.  

I suppose the Court was looking for findings that are the result of tests or examination.  In this case, the diagnosis was "post traumatic stress disorder."  The findings for emotional trauma are not objectively visible by X-ray, but require a trained eye to identify the associated symptoms.

Many disabilities at work are stress related.  This case points out that doctors seen by employees for a "doctor's note" need to write more than  the few scribbles on a notepad that identify the time off needed and the diagnosis.  The doctor will need to state findings of symptoms and behaviors that support his or her decision to take the employee off work.  These might include sleeplessness, anxiety, sudden flashbacks in similar circumstances, lack of concentration, loss of the relationship satisfactions, isolation, over or under eating, negative thinking and tendency to overeact. 

There is a tension between individual privacy, and the employer's right to know sufficient information to understand that the employee qualifies for FMLA leave.  The information must be kept carefully private by the employer, in my opinion, like any information covered by HIPPA.  

I'm about to open the monthly Labor & Employment Law "Section Meeting" as 2011 Chair of the Section.

The August topic is "Workplace Investigations:  The Gold Standard."  Anticipating about 100 members to be present. 

It is Illegal for an Employer to Use Lay-Offs to Hide Biased Selection of Older Workers for Termination.

Yes, an employer is of course free to reduce force, and re-organize operations with new lines of reporting.  It is not legal to prefer younger workers over older ones in deciding who to retain.  Matthews v. Commonwealth Edison Co. (7th Cir. 1997).  See also, e.g., Cronin v. Aetna Life Ins. Co. (2nd circ. 1995) 46 Fed.3d 1194, 1195 and Uffelman v. Lone Star Steel Co. (5th Cir. 1989) 863 Fed.2d 404, 407-408.

In this continuing nightware of lay-offs, some employers are using the lay-offs not just to save costs, but to replace older workers (who may be perceived as less energetic, less able to learn, or more likely to have medical disability and absences).  These motives are illegal, and while the discovery and effort are greater to prove the lay-off was discriminatory, the case can be made.  In part, that is because the proof does not have to be by an admission of bias, but can be based on circumstantial, indirect evidence that places the "official reason" in serious question, and permits a "reasonable inference" that bias was behind the selection.  Reeves v. Sanderson Plumbing (2000) 120 S.Ct. 2097, 2106.   

"It's A Small World" Just Got Smaller: No Wheelchair Access or Ride Evacuation for Disabled at Disneyland.

Joe Martinez is a quadraplegic who got through the Disneyland turnstile, but that is where the fun ended.  He was not allowed to board "The Pirates of Carribean" because it was not wheelchair accessible.  He was allowed on the "It's A Small World Ride" but when it broke down, he was told he could not be evacuated because of his wheelchair.  While waiting, he suffered dysrelfexia, a condition that can result in stroke.  He was transported from the Park by paramedics.  

The federal ADA and the State Unruh Civil Rights Act requires amusement parks and other businesses to avoid discrimination on the basis of disability.  Disney's lack of accommodation for the disabled is an incredbile situation given that the ADA has been "on the books" for over 20 years.  I that time, reported case decisions have clarified the requirements of the law.  The implication is that Mickey doesn't care.  It's the "happiness place on earth," unless you're Joe Martinez.  

Using Facebook to call your boss a "puta" or that you hope your customers "choke on glass" can get you fired.

Excerpt:

"That includes a Walmart worker who referred to his manager as a "puta" -- Spanish for "whore" -- on the social networking site after a spat over store displays, as well as a frustrated Illinois bartender who took to Facebook to air his desire to see the "redneck" patrons on the other side of the bar "choke on glass" as they drove home drunk."

For full article:

http://www.huffingtonpost.com/2011/08/02/facebook-firings-new-territory_n_915...

 

Exploring the Intersection of Employees' Freedom to Compete and Employers' Trade Secret Protection.

An employee in California cannot be compelled by an agreement with his employer to limit his right of re-employment in the industry.  The invalidity of such "non-compete" agreements is soundly fixed in California case law.  A recent federal case in California however explores the sometimes overlapping and opposing interests of the employee and employer where the employer has a "trade secrets" agreement. 

Calfornia courts uphold trade secret agreements, and will issue orders specifying the limitations of an employee's use of confidential information.  A recent case [See full opinion below] has held that a "team member" [i.e., employee] can be restricted in contacting the other "team member's" [i.e., "employer's] clients when those clients were provided with newly developed software created by the efforts of both team members.  The restriction was not a restraint of free competition, but was a restriction necessary, according to the court, to protect the trade secrets of the "team member" [employer] who owned the rights to the software. 

Richmond_Tech_v._Aumtech_Business_2011.pdf Download this file

Don't Let Your Mobile Phone Lead to Downward Mobility. Employers May Grab Your Private Texts / Calls.

Texting, mobile calls, and email on smartphones, including a host of both personal and business applications ["Apps"] open a pandora's box of privacy issues for employees who accept partial or full reimbursement of mobile phone costs from their employers.  The employer may provide the mobile phone and service, or just the phone, or neither the phone nor service, but pay the bill, partially or fully.  Each of these situations creates a different set of "reasonable" privacy expectations by employees.

California has a State Constitution that explicitly extends privacy rights to all citiizens in their interactions with other private citizens of the State.  This expanded protection is unlike the U.S. Constitution which is limited to the actions of government.

A U. S. Supreme Court case, City of Ontario v. Quon (2010) 130 S.Ct. 2619,  illustrates the key issues raised by an employer's seizure of an employee's mobile phone records.  Quon was an Ontario CA police officer who used his government issued  cell phone to text personal text messages of a sexually explicit nature during work hours.  The Department redacted the after duty hours text messages, and focused only on duty-time texting.  Using what it found, the Department disciplined Quon.  The trial court forund for the City.  the Ninth Circuit held for Quon.  On appeal to the U.S. Supreme Court, the Court reversed the Ninth Circuit.

Gaining the Wisdom of Retired Practitioners: My Discussion With A Master.

This morning I received a call from a retired Employment Lawyer of 30 years or more practice who spent decades in the trenches representing employees in trial and arbitrations.  She and I discussed the necessary methods of proof in discrimination cases.  She had been the Plaintiff's Attorney in a leading Ninth Circuit Court of Appeals decision, Godwin v. Wesson Oil, decided nearly 14 years ago.  The Godwin case is cited today in other appellate decisions on the question of what quality and kind of evidence is needed to defeat an employer's pre-trial motion for Summary Judgment.  Godwin held that "'direct evidence" is sufficient but not necessary to defeat the motion.

This kind of phone call is one of the delights of my pratice.  I love speaking with persons who know the law deeply because they helped create it, and they were the trial attorneys in those cases. Their wisdom, their generous guidance, and their invaluable personal insights, are treasures.  

This attorney still gets calls from referrals of former clients, or former clients themselves.  I am honored that she directs some of those calls my way.  

I know she is truly retired, because she stated unapologetically that she has no email when I offered to send her some information. I don't know that I will ever be that "retired."  But I do knew that retirement has not dulled her mind or diminished her fighting spirit based on this morning's call.   

HIgher Gas Prices Correlate (Cause?) Lower Obesity. Do You Walk More & Drive to Restaurants Less?

A $1 increase in gasoline prices over a 7-year period would reduce obesity in the U.S. by 10%, according to a study by Charles Courtemanche of the University of North Carolina that found evidence of a negative association between gas prices and body weight. Gas-price increases are associated with additional walking and a reduction in the frequency with which people eat at restaurants.

Courtemanche estimates that 8% of the rise in obesity between 1979 and 2004 can be attributed to a drop in real gas prices at the time.

Source: A Silver Lining? The Connection Between Gasoline Prices
and Obesity

http://onlinelibrary.wiley.com/doi/10.1111/j.1465-7295.2009.00266.x/abstract