On the Brink With Brinker: Snacking Within Legal Guidelines.

If there is an equivalent to “viral” in the legal writing community, it would be the coverage given to the case of Brinker Restaurant Corp. v. Superior Court decided by the California Supreme Court on August 12, 2012. This may be as close as lawyers come to experiencing Internet hysteria.

To join or not to join? I have decided to join, but somewhat less hysterically.

This decision would matter to you if you were one of 60,000 employees working for the Brinker Restaurant Group. If you are one of the legion of white-collar exempt workers it may not matter much at all. Most of the “buzz” was generated by class action lawyers on both sides of the Bar. If you are an attorney who does not generally practice class action, you could easily doze off during the extensive discussion of the 10-hour work shift.

With so much written, I will add a pedestrian point. It has to do with the simple matter of hunger.  A restaurant worker might experience if working back-to-back shifts. Individual hunger pangs might not matter much to class-action lawyers, but they do matter to your waitress or waiter.

Here is where the stomach growl can be heard: a restaurant operator wants his table waiters to be available during peak service hours. In my own experience representing restaurant workers, I learned that the worker herself would prefer to continue working to avoid loss of tips from customers she had served, only to see those customers pay the tip to the waiter taking over her busy tables. Tips are a major source of compensation for restaurant workers.

The operator solution was to require the restaurant worker to begin his or her meal break immediately upon clocking in to work for his or her shift. This creates the odd situation in which one arrives at work, clocks in, and sits down for 30 min. to do nothing.  This was the situation for many of the Brinker workers.

The industrial welfare commission regulations require that the 30-minute meal break be provided after 4 hours and no later than the 5th hour. [Sometimes the employee can work straight through a six hour shift without a break if there is a written disclosure and consent by the employee].

The  “first” meal break rule is satisfied by giving the employee a 30-minute break immediately upon commencing his shift. But now the hunger sets in. It has been 4 ½ hours since the employee ate. The employee now moves into the 2^nd 5 hours of his 9½ hour shift. Should he be expected to work up to an additional 5 hours without a meal break? That is, is the restaurant operator allowed by law to work the employee just short of 10 hours without providing a 2nd meal break in the 5^th to 10^th hour? The California Supreme Court has answered “yes.” 

Restaurant workers or other employees in comparable situations will have to be adaptable. They may find this law an excellent way to lose weight. They may also find inventive ways to prepare snacks for consumption during their break periods. The California Supreme Court implicitly seem to recognize that employees need this “rest” break by also concluding that the 2nd 10 min. rest break must be given between the 6th and 8th hours of work. I suspect that the holding of the Court affirming that an employee can do what ever he or she wishes during his meal and rest break takes into account that most starving employees will choose to eat.

The “hype” surrounding this decision finds both the plaintiff's Bar and the defense Bar spinning the case to assert victory. This scrambling leads me further to believe that the California Supreme Court has done an admirable job of giving something to everybody.  The Brinker decision was reached by a unanimous opinion. Reading between the lines, I believe that the members of the Court understood that there was indeed a great political and economic lobby waiting for the outcome, and that unanimity would give weight and credibility to the Court's opinion. In the meantime I hope that these hard-working Justices remember to have a snack before taking the Bench.  

For a full copy of the decision:  Brinker

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No more “SLAPPing” Around of Whistleblowers

Employers continue to use “anti-SLAPP” motions to attack wrongful termination cases, and the Courts of Appeal continue generally to deny them access to this procedure. An anti-SLAPP motion is one that asserts that the basis of the wrongful termination case is protected constitutional speech by the employer. The motion permits the court to shift the burden of proof to the employee well before the beginning of the trial to demonstrate a probability of winning on the merits.

In the decision of Donovan v. Dan Murphy Foundation  B-230820 decided April 18, 2012, Court of Appeal reversed a trial court granting of the employer's anti-SLAPP motion. The Court of Appeal held that the “essence” of the allegations were the employee’s resistance of supposedly illegal conduct by the employer’s Board of Directors. Specifically, the employee alleged that the Board acted outside the requirements of the Probate Code in managing the Foundation's assets. The long list of disputes between Donovan and the Board of Directors looked like an internal squabble. Code of Civil Procedure Section 425.16 permits the motion to be granted to dismiss the wrongful termination suit only if the allegations interfere with a person's “right to free speech or petition” on a matter “in connection with a public issue.”

The Donovan decision is significant because it seems to tether the requirement of a “public issue” to a “official proceeding authorized by law.” The Court held that although the Board of Directors was created by the Corporations Code, and that the Board operated within the authority granted by the code, it was not acting as a “official body”. Of course, if the employer had succeeded in this novel argument, virtually any action by a Board of Directors would have become a “official proceeding.”

On the separate issue of whether there was communication that was in the “furtherance of the public interest,” the Court noted that the employer did not provide any evidence that there was widespread public interest in the actions of this particular Board of Directors. For example, it noted that the Board had not presented evidence of widely disseminated news articles.

Disturbing in this decision is not the holding of the Court of Appeal but the ruling by the trial court initially that the employer should prevail on its anti-SLAPP motion. Hopefully, with the accumulation of these Court of Appeal decisions, trial courts will be guided to grant these anti-SLAPP motions only in the most clear circumstances.

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Keep Your Cool When Getting Feedback - Management Tip of the Day - April 18, 2012 - Harvard Business Review

Keep Your Cool When Getting Feedback - Management Tip of the Day - April 18, 2012 - Harvard Business Review


"If the pink slip doesn't fit, get redressed!"
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Be Proud of Your Accomplishments, Not Your Affiliations - Daniel Gulati - Harvard Business Review

Be Proud of Your Accomplishments, Not Your Affiliations - Daniel Gulati - Harvard Business Review

YOUR DEGREES, YOUR "BIG FIRM" RESUME, AND YOUR GPA MAY NOT BE AS IMPORTANT IN A WORLD THAT LOOKS QUICKLY AND DEEPLY INTO WHAT MAKES YOU BOTH RELEVANT AND UNIQUE.

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Your Future Employer Is Watching You Online. You Should Be, Too. - Michael Fertik - Harvard Business Review

Your Future Employer Is Watching You Online. You Should Be, Too. - Michael Fertik - Harvard Business Review


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The Magic of Doing One Thing at a Time - Tony Schwartz - Harvard Business Review

The Magic of Doing One Thing at a Time - Tony Schwartz - Harvard Business Review

Summary Judgment in ‘Hostile Work Environment’ Cases Not Favored.

The California Court of Appeal has again held that trial courts should generally not grant summary judgments on issues of “hostile work environment.”  In Rehmani v. Ericsson, Inc. [Mar. 29, 2012 2012 DJDAR 4177] the Court reviewed a trial court’s granting of summary judgment for the employer on discrimination, harassment, and “failure to adequately investigate” claims.  

The workplace issues centered round a Pakistani worker, who claimed his Indian supervisor and co-workers made disparaging remarks and humiliating remarks of his “terrorist” activities, that they were frequently rude and insulting, and that they failed to provide him adequate work support to allow him to do his work.  He alleged the Indians acted from bias based on his national origin and religion.

 

The employer countered with evidence in the summary judgment motion that the remarks did not occur, that if they occurred, they were few and isolated.  Also, the employer presented evidence that the remarks or actions were by non-supervisory co-employees, and that the employee did not clearly or timely report the incidents to Human Resources.  Finally, the employer presented evidence that the employee did not use the words “discrimination” or “harassment” when reporting his co-employees’ conduct, nor did he complain that the co-workers’ treatment was due to his being “Pakistani” or “Muslim.” 

The employee offered evidence that he complained to his supervisor repeatedly about his co-employees’ behaviors, although admitting he did not use words indicating “discrimination.”  He presented evidence that the employer seemed generally to favor East Indian co-workers in matters of hiring, salary increases and promotion.  The Court of Appeal, sua sponte, without evidence, noted generally in its opinion, that there are well-known tensions between India and Pakistan that would explain the idea that Plaintiff, as a Pakistani Muslim, would be targeted by the East Indians with remarks of his alleged terrorist tendencies.

    

The court followed Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4^th 243, 263-264, declaring that summary judgment is generally disfavored to decide issues of “hostile work environment.”  The Court held that Rehmani’s general complaints were sufficient to trigger an investigation into possible discrimination and harassment on the basis of religion and national origin. 

Implications of the Rehmani v. Ericsson decision:  Obviously, the Nazir decision is supported and followed, and this case adds to the weight of that precedent that summary judgment is not the time or place to decide issues of fact on “hostile work environment issues.”  More significantly, this decision tracks a familiar pattern in these cases:  a few hostile or “stray” remarks over a long period of time, made by persons who are not managers or decision makers, with indications of rudeness and poor interpersonal relations with co-workers, but not clear discrimination, and an H.R. investigation into those complaints without findings of discrimination or harassment.  Likewise, it is fairly common that the complaining employee does not use the words “hostile work environment” or “harassment” or “discrimination” or any one of the usual “protected classes” that trigger a clear duty to investigate. 

Employee attorneys must vigorously fight summary judgment motions with the Nazir and Rehmani decisions.  Further, they must gather as much evidence as possible to make the case that a competent H.R. person would take the initiative to probe for evidence of harassment and discrimination even if not presented with those specific words by the employee.

This case also suggests that where there are groups of employees of different national origin known to be hostile to one another, the employee attorney should request formal judicial notice, and if indicated, obtain expert sociological/cultural opinion on how these groups generally view one another, either consciously or subconsciously.  

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Court Protects Employee from Employer Seeking to Recover Expert Fees.

On March 28, 2012, the California Court of Appeal in Baker v. Mulholland Security and Patrol, Inc. [2012 DJDAR 4093] held that an employee who lost his discrimination, harassment and retaliation suit by summary judgment entered against him was not required thereupon to pay the employer's expert witness fees.


The defendant made the argument before the trial court following judgment that Government Code Section 12900 et seq. of the "Fair Employment and Housing Act" [FEHA] permits an employer to recover expert witness fees as "costs of litigation" even if the employee was "reasonable" and was not "frivolous or vexatious" in bringing the anti-discrimination, anti-harassment, and anti-retaliation suit. 


The Baker court noted that the California Courts of Appeal are split on the question of whether the "ordinary costs of appeal" [i.e., non-expert costs] are recoverable by a prevailing employer in a FEHA case when the case is reasonable in the inception, and "not vexatious or frivolous."  [citing the conflicting decisions of Perez v. Co. of Santa Clara and Knight v. Hayward Unified School Dist., with Cummings v. Benco Building.] 


The Baker Court elected to follow federal cases that placed "expert witness" fees in the same category as "attorneys fees" in Title VII cases where the employer prevailed.  The Court reasoned that "expert witness fees" are not "ordinary litigation costs" but are the subject of special cost shifting statutes.  


The recovery of attorneys fees and expert witness fees are not matters of right, but reside with the discretion of the court as to amount.  Govt. C. Section 12965(b).  "Ordinary costs of litigation" are however recoverable as a matter of right to a prevailing party.  The Baker Court of Appeal held that the Trial Court was incorrect in awarding expert witness fees without making a finding that the employee brought the suit unreasonably, frivolously, or for a vexatious purpose.  

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THE FUTURE OF EMPLOYMENT ARBITRATION FOR EMPLOYEES

The judicial tension between California and the U. S. Supreme Court is palpable.  The tension arises out of California court decisions that find arbitration agreements not meeting fairness and equitable criteria to be unenforceable as a “matter of public policy.”  The U.S. Supreme Court is responding in several decisions with its own idea of “public policy” under the Federal Arbitration Act [FAA]. 

Basically, the Supreme Court has stated that the FAA pre-empts California’s restrictions on parties’ agreements to arbitrate.  Ironically, the California Supreme Court has held that under state common law, which continues to govern the formation and existence of contracts generally, an arbitration agreement procured by fraud or overreaching economic power is no contract at all.  The logic is inescapable:  if there is no contract, then there is no conflict with federal law in the interpretation of the “alleged” contract.

 

This federalism tension is being played out in a wide range of commercial contracts, but within the context of an employee who signs such an agreement as a condition of being hired, or as a condition of continuing employment, the drama is found in the case of Sonic-Calabasas A, Inc. v. Moreno (2011) 51 Cal.4^th 659, which was remanded by the U. S. Supreme Court on appeal (late 2011), with directions that the California Supreme Court should reconsider its 4 to 3 decision to invalidate the employment arbitration agreement. 

Here is the stage on which the drama is played:  The California Supreme Court held that an arbitration provision that required an employee to waive his right to seek a hearing before the California Labor Commissioner was void as a “matter of public policy.” 

The California Supreme Court reasoned that the employee was at a singular disadvantage when denied the opportunity to use the resources of the Labor Commissioner to resolve his $18,000 wage dispute.  

The employee's disadvantages in being denied a Labor Commissioner hearing included the lack of a pre-hearing conference with the Commissioner to resolve the matter, the lack of an expedited hearing process, freedom from the usual rules of procedure and evidence, and the provision for an appeal bond to be posted by the unsuccessful employer on appeal.  Also, the “one way” fee rights by statute available to the employee became a “prevailing party” or “two way” fee shifting right favoring the employer in the arbitration agreement.  

Sounds plenty convincing to me!  The legal jargon used by the court, based on its prior “invalidation” decisions, included:  “procedurally and substantively unconscionable” and “contract of adhesion.” 

“Nonsense” was the U.S. Supreme Court’s response, in effect.  The U.S. Supreme Court reminded the California Court of the federal bench’s decision in AT&T Mobility LLC v Concepcion http://en.wikipedia.org/wiki/AT%26T_Mobility_v._Concepcion.  [“Concepcion”] Concepcion was a 5-4 decision decided in April 2011, and decided along ideological grounds.  The conservative majority in Concepcion held that class action consumers were required to arbitrate their individual small consumer claims against large companies, despite the impracticality and economic hardships of doing so.  The logic seems to be: the FAA is what is, fair or unfair to individual consumers.  If the law is broken, it is for Congress to fix it.  Until then, the Courts will enforce it.

Prediction:  The clash will continue.  The Supreme Court will win this particular clash of course.  The “remand” was a nice way of saying we expect a different result.  But “Concepcion” addressed an “access to justice” issue in view of the increased costs and other disadvantages of arbitration for the employee.  The employee in Sonic-Calabasas did not create an evidentiary record on appeal that those assumed disadvantages in fact had an economic impact that prevented his access to justice.  A highly paid executive, for example, might very well not be disadvantaged by a waiver of a Labor Commissioner hearing.  

All this to say:  The California Supreme Court has a “way out” by denying the employee’s appeal on grounds other than “unconscionability.”  That is, the Court could hold maintain that its standards of “unconcscionability” still apply (despite Concepcion) but that the employee had failed to make the record on appeal that the standards were triggered. Thus, the employer wins, and the further [likely adverse] review by the U. S. Supreme Court of the more fundamental legal issues is avoided.  

The overall trend however is that more California employment law cases will be arbitrated.  The issue will be, I think, what qualifiers and burdens can the California courts place on employers in view of the Concepcion decision and the Sonic-Calabasas remand.  

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How Do I Answer: "Why Did You Leave Your Last Job?"

Following is: Penelope Trunk's (nom de plume, I hope) answer to the question:  "How do I handle the question:  'Why did you leave your last employment?' "

Mailbag 5:31 am on March 15, 2012 Permalink | Reply 

Saying why you quit the last job 

I was recently fired, and I’m finding it tough to answer questions regarding my unemployed status to potential employers.
I worked for my last company for 10 months. My numbers were high and my clients had only positive things to say regarding my service to them.  I always knew that there were some issues with my fit in the company culture.

Out of the blue i was asked to meet with my line manager and his manager for a drink one evening at the hotel they were staying at. I met with them and they were extremely awkward and i knew that something bad was coming. They said that I was being asked to leave the company effective immediately and that i would be paid 3 months salary. I asked what the reason was and both guys eye-balled each other and didn’t reply.

So I wished them well, asked for a good reference from my line manager, and I walked out.

I have been in touch with some potential companies and some headhunters with regards to new possible positions and the first question that always comes up is “why did you leave your last position after such a short period of time?” With some headhunters I have been honest about what happened in the hopes that they may be able to offer some advice from their expertise but most of them just say that they will find it hard to place me in a new position.

One head hunter advised me to say that my role with the last company was a “set up” role where I was employed for one year to establish the brand in the market using my industry links, marketing skills and product knowledge and that I was now free to pursue other options now that the set up was established.

Do you have advice on how I can overcome this hump?

 

• 

  Penelope Trunk 5:37 am on March 15, 2012Permalink | Reply

  The advice you got from the headhunter is right. The story about you being fired and them not telling you why you were fired and paying you for three months to get you out: very bad story for you. Makes you look terrible because it looks like they hated you so much they were willing to lose sales and give you money to get you out quickly.

  You need to tell people you did what you were hired to do and the job ended. That’s a better story. And it’s also a true story. There are many truths to the same story. That’s a really important thing to remember when you describe your career– any part of your career — to someone.

So, cutting to the chase, Penelope's answer is:  omit as much information as possible, and when necessary, lie.  


I disagree with this approach.  If we go through life lying because of the price potentially to be paid for telling the truth, the spiritual, relational, emotional, and eventually economic prices we pay will be much greater. 


 I am reminded of the story of patron saint of the legal profession, St. Thomas More, whose life became the basis of the movie "A Man For All Seasons."  More literally lost his head by holding to his truth.  The movie basically states Thomas' argument that he will not renounce his allegiance to God as a condition of showing his loyalty to King Henry VIII: 

Sir Thomas More: [to Will Roper] "Now, listen, Will. Two years ago you were a passionate churchman. Now you're a passionate Lutheran. We must just pray that when your head's finished turning, your face is to the front again."

So there you have it:  the choice between the turning head and the head that is lost.  For some the choice is easy, for the cost of the alternative is too high.  For a few, knowing exactly which face is showing up at any given time is of more importance. 


I counsel my clients not to lie. I also counsel them not to go into lengthy explanations for their departure.  I certainly counsel them not to be negative or disparaging in their descriptions of the work environment or management personalities of their last job.  


It is possible to simply state that you were terminated from your position for unstated reasons (which is often true) or to state the reason given, and that you did your best to address those reasons, and you feel that you were meeting expectations.  State simply that you do not agree with the reasons given, and you really do not know the true reasons.  (again, if this is a true statement.)  


How refreshing and persuasive it would be for a fired employee simply to say in an interview:  "I made some mistakes in my last employment.  I learned from them.  I have made adjustments.  I will not make them in this job, if it is offered to me."  


In the limited time allocated in the interview, focus on your accomplishments.   Let your face and body language express your enthusiasm to meet the needs of your new employer.  


Attitude is critical.  If you admit to a less than perfect job history, offset that with lots of positive statements about yourself, your successes, and your ambition to be the most successful employee possible.  Express why you are excited about working for this company, and how you see yourself contributing and growing as a member of their team.  Keep the overall tone of the interview upbeat and forward looking.  


And don't lie.  


"If the pink slip doesn't fit, get redressed!"
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