Playing the Odds: Duran Duran

What are the odds the Supreme Court will overturn the Court of Appeal in any randomly selected case coming before it?  The Justices may just be more able to provide that probability analysis after its review of Duran v. U.S. National Bank Association 203 Cal.App.4^th 212.  This case, now pending before the Supreme Court, will decide the way proof is admitted to prove class members properly belong in the class. 

In Duran, the issue was the scope of proof needed to establish an employer’s liability to a class for non-payment of overtime.   The Court devised its own method of getting to an “efficient” trial method to admit evidence applicable to all 260 employees:  it randomly selected 21 individuals out of the total population of 260.  Based on this random sample, Court ruled the entire population of employees was misclassified as salaried exempt.    

The trial court refused to allow evidence obtained by the defense from 70 employees that they were not properly in the class overtime eligible employees.  At least these 70, argued the defense, should have been excluded from the “presumed” class of all 260 employees.  

Our conservative Supreme Court may track the thinking of the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541 (2011) that found serious due process concerns with statistical methods that overlooked significant individual differences among a large part of the population of all “class” members.  But, our Court, applying our overtime laws, and following class action law for California employees, will be free to fashion their own class action procedures. 

The strange part of the trial court’s decision in the Duran case was it’s finding of a 95% certainty that each member of the class worked 11.86 overtime hours per week, subject to a relative margin of error of 43%.  The logic of this statement is bizarre:  “I am  95% certain that my conclusion is true about one-half the time.”    I predict the CA Supreme Court will not let this kind of statistical analysis result in liability for the all class members, especially where the defense sought to present 70 declarations from purported class members showing they were not properly in the class. 

Here is Wikiepedia’s short version of the major decision points in crafting a survey sample to produce a reliable statistical analysis:

§  Defining the population of concern

§  Specifying a sampling frame, a set of items or events possible to measure

§  Specifying a sampling method for selecting items or events from the frame

§  Determining the sample size

§  Implementing the sampling plan

§  Sampling and data collecting

§  http://en.wikipedia.org/wiki/Sampling_(statistics)

In conclusion, I’m 95% certain that I have about a 50% chance of picking the outcome of the Duran appeal. 

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The Censor: He Has a Face, and He is Us.

Face to Face:  Social Media and the Masks We Share

For those intrepid few who dare to express themselves as indiscreetly as the English language will allow, there is AB 1844, soon to be officially Labor Code Section 980 et seq.  The California legislature has come to the protection of persons too dense, too indifferent, too rich, too independent or too eccentric to give a damn what they post on social media.   Of course, it also has provided protection for even the cautious citizen who has no personality to hide.  No one, not even someone whose greatest contribution to public debate is how to cook vegetables, should be required to give up his username and password to a meddling employer.

In the early days of social media, I think there was an illusion that a person could be “real” in that environment.  The illusion is over.  If you want to be real, transparent, and open, well, it turns out the old fashioned friends who actually meet over dinner or shared activities may be the answer after all.

Did we once hope that social media would provide that open intellectual space where viewpoints had room to breathe?  If so, we soon were jolted from our dream by investigators who actively rooted out contrarian or offensive viewpoints to deny us employment or decline our membership applications.

     

But I sense the communal censor has grown stronger over the years.  That golden age of naïve Facebook users produced some colorful and interesting narcissists.   It still does.  But most people have learned at this point that “image control” and “job protection” or “career management” involve either putting nothing on social media, or only the most bland and boring of information that will assure you that coveted status of “safe,” “normal,” and “employable.”  The social mask we wear now must expand to cover a face the size of Facebook.    Maybe LinkedIn was always the final resting place of the “social” self. 

In the work environment, “punished” most often means fired.  “Freedom of speech” does not exist in non-public work environments.   Employers with “open door” and “open communication” policies routinely punish employees criticizing a manager or company practice.    In healthy and innovative work environments, wild, jarring and “indelicately” expressed ideas may actually be encouraged.  Alas, in many other places the free expression of an idea will likely cost your job.  But what if the “speech” occurs outside the workplace, after work hours, and states strong negative employee opinions about the employer?  In a phrase:  what are an employee’s privacy rights?

A lot has been written on this topic of “social media privacy.”  I will not rewrite it.  Instead, I will simply reference the essential new developments created by some NLRB rulings and AB 1844.  The National Labor Relations Board in May 2012 issued Memorandum OM 12-59 that traces the NLRB rulings, and provides a “model” social media policy.  The concern of the NLRB appears to be primarily that social media restrictions can be overbroad in limiting “concerted activity” among workers to address grievances at work.   I have posted the complete “Office of the General Counsel” memorandum for your reading pleasure.  It includes a very useful model policy that General Counsel states is NLRA compliant.

Labor Code Section 980(a)-(e) will prohibit an employer from requiring the employee to access the employee’s social media in the employer’s presence, or to provide the employer with the employee’s username or password to a social media site.  Section 980(e) is an anti-retaliation provision to protect employees who resist illegal employer demands that violate Section 980.  

The remedies for a Section 980 violation appear to be a general civil cause of action for violation of the statute, and quite likely a common law right to proceed with a “wrongful termination in violation of public policy.”  Section 2 of the new statute states that the Labor Commissioner has no duty to investigate or determine if a violation has occurred, leading me to conclude that there is no “exhaustion of administrative remedies” requirement of the employee, who may proceed by direct civil action for the full measure of tort damages. 

Here is the full text of the NLRB General Counsel's Opinion Memorandum:  Memorandum OM 12-59 Office of the General Counsel .

Here is the full text of AB-1844, soon to be CA Labor Code Sec. 980:  California Legislative Information: AB-1844 Social Media Privacy

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The Applicant: A Poem by Slyvia Plath

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Abolish the Employment "At-Will" Rule?

THE BATTLE OF THE PUGNACIOUS PUGILISTIC PENAL CODE SECTIONS

In Employment Law cases, a disgruntled employee, anticipating the need to prove some aspect of the case, will secretly record a conversation with an employer.  The employee then sees an attorney, discloses that the recording has been made, and proudly announces that it is proof of the misconduct by the employer. The Plaintiff’s attorney only groans.

Witness the battle of the Penal Code sections. In one corner, Penal Code § 632 prohibits the recording of a confidential communication without the consent of the parties. In the other corner, Penal Code § 632 (c) permits the use of a recording where the communication is made in a public gathering or in other circumstances where confidentiality could not reasonably be expected. 

May a secretly recorded conversation ever be used in a court as evidence? The answer is “sometimes.” If the statement is used for impeachment purposes, exposing that the other party is committing perjury, or something resembling perjury, courts have permitted the criminally procured statement to be admitted. The idea is that the policy against perjury outweighs the policy against secret recordings.

Of course a sticky issue arises where discovery asks for all recordings in the possession or custody of the employee [or employer]. The employer, if it acts quickly, can obtain the identity and fact of the recording, and therefore alert its witnesses to avoid any lying on the witness stand. Further, the employer can use the secret recording as basis to assert an “affirmative defense” cutting off damages [“after-acquired evidence rule”] from the date it discovers that the secret recording was made.  Therefore, the Plaintiff’s attorney should quickly take the deposition of the defense witnesses in the hope that their inconsistencies can be exposed by the secret recording before it is necessary to identify the recording.

In any event, counsel should never participate in a criminal activity of encouraging or condoning the use of a secret recording in the workplace.

See generally Fria v. Superior Court (1988) 203 Cal. App. 3rd 1480 and People v. Crow (1994) 28 Cal. App. 4^th 440.  

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TRAGIC CASE BRINGS HOME THAT O.C. JURIES CARE

Over the years, Orange County juries have developed a reputation for being tightfisted with money. That reputation is undeserved. It simply means that our juries require sufficient evidence to support a large verdict. There been a number of the very substantial verdicts coming out of Orange County.  A recent one is $38.6 million awarded to a man who suffered serious brain injury when falling off a Newport Beach hotel balcony.

No one witnessed the accident. The man was intoxicated at the time he fell off the balcony. The balcony rail was 8 inches lower than that required by California safety regulations. The plaintiff’s attorney represented to the jury immediately that his client was drunk, but that he was attempting to return to his room. He was not breaking the law at the time. The defendant apparently thought that the man's intoxication would result in most of the blame being placed on the plaintiff. The defendant focused on the bad behaviors of the plaintiff. That strategy apparently backfired.

The case was heard in Orange County Superior Court (Santa Ana) before Judge Charles Margines, and is entitled Von Norman v. Newport Channel Inn, 30–2010–00423312.  Verdict date:  7-26-12.

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PUTTING THE BRAKES ON RUNAWAY DEPOSITIONS

A proposed law would change the time to complete a deposition from unlimited duration to 7 hours. Currently the law requires the party objecting to the length of the deposition to suspend the deposition and to seek a protective order.

The new law would allow the parties to stipulate to a longer time of deposition if the nature of the case warranted. The idea is to stop abusive and wasteful interrogations. Interestingly, employment cases are excluded from the proposed legislation as a class of cases. See Assembly Bill 1875 seeking to amend CCP § 2025.010.

 

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$8.5 million Awarded in LA Superior for "Failure to Accommodate" a Disability

$8.5 million has been awarded an Employee who worked at an oil refinery. In 2005, the Employee hurt her knee while working as a Shift Supervisor. Thereafter, the Employer assigned her to a desk job position because of her knee problems.

When another Company acquired the Refinery, the Company changed the Employee's duties, and she was required to go on a medical leave of 22 months. The Employer ultimately terminated her for failure to appear for work in her new job capacity.

The Employee claimed that she should have been allowed to continue in her desk job. The Employer claimed that she had been given adequate opportunity to recover, and that she could not perform the essential functions of the job. Employer also claimed that she was unqualified for the other jobs that she sought within the company.

Some observations:

1) The verdict came out of the Central District for Los Angeles County Superior Court. This venue is known to produce high verdicts.

2) Big does not necessarily mean better or more effective. The defense law firm in the case was Fulbright and Jaworski.

3) The previous Owner/Employer was able to "accommodate" the Employee for a period of time in her desk job probably lead the jury to believe that the new Employer could do the same.

4) The new Employer's changing of the Employee's job duties seems to be a self-serving excuse to find a way to eliminate the Employee's position, that is, to eliminate the previous Employer's "accommodation."

Source: "Daily Journal Verdicts and Settlements" Friday, July 20, 2012, page 5, Michelle Daniel v. Tesoro Refining and Marketing Company, Case BC383531. Verdict: June 21, 2012.

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