Thursday, December 27, 2012

Hispanics United of Buffalo -- Protecting Pre-Concerted Activity

On December 14, 2012, the NLRB issued a Decision and Order in Hispanics United of Buffalo, Inc. and Carlos Ortiz, Case 03-CA-027872.  It affects an employer's right to take action against employees based on their social media posts. 

Ms. Cruz-Moore worked at a domestic violence shelter in Buffalo.  She texted to her co-worker, Ms. Cole-Rivera, that co-workers did not do their jobs.  In fact, the two employees texted and telephoned one another frequently, both during and after work.  Eventually, Ms. Cruz-Moore told Ms. Cole-Rivera that she was going to tell the boss about the lack of work.  Ms. Cruz-Moore did not welcome a complaint about her work.  She told workers, via Facebook, that Ms. Cruz-Moore complained about them, and asked, "My fellow coworkers how do u feel?" 

Co-workers responded to the Facebook post.  They defended their work efforts. 

Ms. Cruz-Moore claimed the workers lied about her and caused her a heart attack.  She took a copy of the Facebook posts to the boss who fired the employees for bullying and harassment.  The shelter had a "zero tolerance" for such conduct.  Thus, the co-workers were fired. 

At this stage of the proceeding, the question was whether the postings constituted concerted activity protected by the NLRA. 

Concerted activity is "engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself."  Moreover, it includes those "circumstances where individual employees seek to initiate or to induce or to prepare for group action, as well as individual employees bringing truly group complaints to the attention of management." 

The NLRB concluded that the acts of the co-workers was protected under these definitions of concerted activity.  Ms. Cole-Rivera alerted co-workers about the complaint, said she was tired of the criticism, and asked co-workers for their views.  The employees were taking the first steps toward group action to defend themselves against the accusations. 

It did not matter that Ms. Cole-Rivera did not tell co-workers that Ms. Cruz-Moore planned to tell management.  It was the objective of Ms. Cole-Rivera to develop a group defense to the allegations.  According to the NLRB, the law protects discussions about job performance. 

I don't know if Ms. Cruz-Moore is still at the shelter.  I don't think she had enough work to do with all of the complaining she did.  And it doesn't appear that she suffered a heart attack either.  Perhaps she should quit whining and started working. 

The supervisor wasn't the brightest bulb in the chandelier either.  Firing employees for objecting to a co-worker's gossip about their performance is a bit over the top.  And zero tolerance policies are, in my opinion, zero intelligence policies.  It eliminates any common sense.  It is an attempt to avoid examining facts and resolving issues. 

In the end, the court protected Facebook posts between feuding co-workers, even where the employer had not yet contemplated taking any action. 

I hope your social media policies are up-to-date. 

Friday, December 21, 2012

The Price IS Right for Brandi Cochran!

The media is reporting that a jury awarded Brandi Cochran $8.5 million for pregnancy discrimination related to her position with the TV show, "The Price is Right."  $601,944 was for lost wages and future earnings.  I suspect an additional amount was awarded for emotional distress.  However, the majority of the verdict -- in excess of $7 million -- appears to be in the form of punitive damages. 

Cochran worked for six years as a model on the show.  She then took 10 months off as "maternity leave" before seeking reinstatement.  The show was satisfied with the models then working.  Thus, it did not reinstate Cochran. 

There is no maternity leave in California.  We have pregnancy disability leave (PDL) but no maternity leave.  PDL is during the period of the woman's disability caused by pregnancy, not to exceed four months.  Even if Cochran took CFRA (California Family Rights Act) leave after PDL, she would be entitled to only 7 months of leave. 

An employee on PDL is entitled to reinstatement.  An employee is entitled to reinstatement after a CFRA leave too.  So it is interesting to see that Cochran was absent for 10 months and called it maternity leave.  I would have advised my clients not to extend PDL or CFRA (absent a disability pursuant to the Americans with Disabilities Act).  Thus, after the four, or seven months elapsed, Cochran would not have been entitled to reinstatement.  A claim of discrimination based on pregnancy disability would not have been successful. 

The show has decided to "spin the wheel" and appeal the case.  We'll see if it wins the showcase or loses because it overbid. 

Leaves are tricky, especially in California.  You need to make sure you understand the leave requirements and the reinstatement obligation.  Let us know if you need help navigating your way.

Wednesday, December 19, 2012

Hourly Rate of Pay for Computer Software Professionals and for Physicians

When it comes to wage and hour law, most employees are eligible for overtime compensation.  However, some employees are "exempt" from accruing overtime pay.  We generally think of exempt employees as professionals, managers or administrators who are paid a salary. 

There are other exemptions under the law.  In California, computer software professionals and also physicians and surgeons can be exempt from accruing overtime even if they earn an hourly rate of pay instead of a salary. 

Each year, the Department of Industrial Relations establishes the minimum hourly figure a computer software professional and a physician must be paid to be considered exempt.  The hourly pay that must be provided to a computer professional to maintain the exemption is $39.90 which works out to annual compensation of $83, 132.93.  The hourly pay that must be provided to a physician or surgeon to maintain the exemption is $72.70. 

Exemptions can be difficult issues.  Email me if you have questions about whether or not your employees are exempt. 

Friday, December 14, 2012

California Workplace Law -- Year in Review

Each year I update clients' handbooks based on the new laws, regulations and judicial opinions affecting California employers.  It has been an incredible year.  Employers have a lot of work to do to comply with the new laws. 

Our office has compiled nearly 200 new laws and cases in preparing changes for our clients' handbooks.  To help them understand their obligations, we also provide a training course. 

The training courses are Tuesday and Wednesday.  We still have a couple of seats left.  It is a three-hour course, from 9 am to noon.  Cost is $350.  Join us if you can. Call 559.256.5000 or contact to register. 

If you are worried about the cost, don't be.  One lawsuit can easily cost you $250,000 in attorneys' fees.  Even a simple DFEH or EEOC complaint can cost you $5,000.  So the $350 is a drop in the bucket compared to what could happen if an employee files a claim against you. 

And if you are still worried, don't attend.  I'm ok with that too.  One day, you will be sued and need a lawyer.  I will make a lot more money if you are sued instead of prepared.   

Shoes Reveal the Woman

My closet contains four pairs of shoes.  I have two pair for work (black and brown), one for casual events, and a pair of tennis shoes.  In contrast, my wife has lots of shoes.  So do my daughters.  Women love shoes!  It's all good. 

As it turns out shoes often reveal the true character (and physical agility) of women. 

Many news outlets are reporting a story about Modupe Adunni Martin.  She claimed an ankle injury as a result of a work-related incident.  a custodian in San Mateo, she claims she was unable to walk for six months without the aid of crutches.  After medical assessments did not substantiate her claim, the workers' compensation insurer videotaped a day in the life of Ms. Martin. 

As it turns out, the insurer picked a good day to videotape Ms. Martin.  She met a boyfriend in a public park.  She ran to him wearing high heels.  She then knelt down and performed a sex act on him.  (I guess it was a good day for him too.)  Doctors say Ms. Martin could not have engaged in those activities had she really sustained an ankle injury. 

Ms. Martin pled guilty to workers' compensation fraud.  She is spending 9 months in jail, is on probation for 3 years, and must repay $79,000. 

My question is why she wasn't also convicted of engaging in lewd acts in public places? 

And just what did those high heels look like?  Perhaps you will find out when you google Ms. Martin. 

Tuesday, December 4, 2012

Can AutoZone Fire Its Employee for Stopping an Armed Robbery?

An AutoZone in Virginia was held up by a man who police say is responsible for 30 robberies in the area.  He came in as the store manager and an associate, Devin McClean, were closing the store. 

The assailant put McClean in a restroom, and then took the manager to the safe.  He was armed with a handgun. 

McClean was able to exit out a side door of the building.  He ran to his car, pulled out his Glock and ran back into the store.  McClean pointed the gun at the assailant and told him to freeze and drop the weapon.  The assailant took off.  McClean stopped the robbery and potentially saved the manager from physical harm or death. 

A couple days later AutoZone fired McClean for bringing a gun into a store.  It's a "zero-tolerance" policy the company maintains.  Of course, most who hear the story think the policy is a 100 percent stupid policy and that AutoZone should hail McClean as a hero rather than a rule-breaker. 

What if this had happened in California?  Could AutoZone fire an employee for stopping an armed robbery?  I think the answer is probably yes. 

I assume AutoZone does not enter into employment contracts with its associates.  Thus, a termination would not breach a contract.  Thus, the only question is whether firing the employee violates public policy. 

California law prevents an employer from retaliating against an employee for making a complaint of unsafe working conditions.  But this is not the situation with AutoZone.  In essence, AutoZone fired McClean for doing something good, heroic and against company rules. 

The law allows an employer to fire an employee for a stupid reason, or for no reason at all.  An employer is permitted to make errors in judgment and to exercise discretion, so long as public policy is not jeopardized. 

Mr. McClean would probably be out of a job in California without a lawsuit.  He could probably get unemployment benefits.  And I suspect another employer would quickly hire him.  But he probably would not have a viable lawsuit against AutoZone. 

So much for justice. 

Wednesday, November 21, 2012

Join Us At Our Legal Beagle Bagel Breakfast on Nov. 27th

Each month I hold a training conference for employers on various aspects of managing a workforce in California.  This month we will focus on the concept of a disability.  Here is the invitation to the training course.  Join us if you can. 





The term “disability” has different meanings depending on the particular law.  Disability may also mean something different to the agencies investigating claims of discrimination than to an employer.  Not recognizing the different meanings, or failing to understand the position taken by the EEOC or DFEH, may result in liability to an unwary employer.  We invite business owners, senior managers, attorneys, and human resource professionals to attend, in person or via teleconference, our monthly “Legal Beagle Bagel Breakfast” to learn ways to reduce potential liability with respect to disabled employees.    

The New Face of Disabilities

·         What qualifies as a disability?

·         How much leave is reasonable as an accommodation?

·         Can pregnancy be a disability under the ADA?

·         Perception of and associational disabilities


When:             Tuesday, November 27, 2012

            This session will be available via teleconference.

 Time:              8:00 a.m. – 9:30 a.m.

 Where          Fishman, Larsen, Goldring & Zeitler

                          7112 North Fresno Street, Suite 450

                           Fresno, California  93720


Cost:  $25.00 per person (FREE for HR Business Partners); an additional cost of $10 per line for teleconferencing.  The registration deadline for the teleconference is November 26th.  One (1.0) hour of MCLE credit is available from Fishman Larsen Goldring & Zeitler, an authorized California MCLE provider.


To register, please contact our receptionist at (559) 256-5000, via fax at (559) 256-5005; or via e-mail to  Sign up now!  Seating is limited.  An RSVP is a commitment to pay. No refunds or cancellations; however, substitutions will be accepted.


Name(s): _________________________________________________________________

Company: ________________________________________________________________

Telephone: _______________________________________________________________

E-mail: __________________________________________________________________

Via Teleconference: _____________________

Amount Enclosed: _______________________

Monday, November 19, 2012

Tulare is in the News Again, This Time for a Business Failing to Provide Seats for its Workers

It's a crazy law, but someone should benefit from it -- and no one is more deserving than lawyers!

Each wage order contains a provision requiring seats for workers "when the nature of the work reasonably permits the use of seats."  When the meal and rest period class action litigation started a few years ago, lawyers looked at other provisions of the wage order that could support mass litigation -- and revenue. 

It was like another golden grail.  A lowly seat.  Maybe just a bench ... or stool.  Think of all those cashiers at every store who must stand to work.  Yet, couldn't a seat reasonably be permitted?  And who better to decide when seating accommodations should be provided by lawyers and juries?  Really, I am kidding.  Lawyers and juries are probably the worst people to have making decisions on seating in any particular store. 

Well Kmart in Tulare had a class action lawsuit filed against it.  Kmart is saying that revenues keep going down and that it would cost $10,000 per aisle to reconfigure check-out stands to accommodate seating. 

So what does this mean for you?  You need to consider whether any particular job performed by employees could be done in a seated position.  If so, you may want to compare the cost of those seats to the cost of litigation. 

Aren't you glad you own a business in California? 

Friday, November 16, 2012

Pigs Get Fat, Hogs Get Slaughtered

Am I bummed!  I understand that Ding Dongs, Twinkies and Ho Ho's might be a thing of the past.  And why was this?  Because some hard-headed union members refused to accept the company's final offer.  The company told them that they could not continue to operate with the high labor costs.  But the union called the company's "bluff" only to lose 18,000 jobs.

Unions serve a purpose in society.  However, often these unions go too far.  This is very evident in California, particularly with public unions.  (I can't figure out any possible justification for public unions.)

One of my buddies would tell clients, "Pigs get fat; hogs get slaughtered."  Perhaps this adage is applicable with the Hostess strike and company closure.  I guess the union did not believe the company.  Hard to imagine, however, when the company was in bankruptcy and even the judge said there was no money for additional wages and benefits.

Thursday, November 15, 2012

I Didn't Know Men Complained About Sexual Harassment!

A common misperception is that men are either not sexually harassed, or that they like it and won't complain.  While this may occur in some cases, Michael Crichton taught us a decade ago that even if Demi Moore was the aggressor, a man might not appreciate being the victim of sexual harassment.  (Read the book or watch the film, Disclosure.) 

Recently, the Sparks Steakhouse in NYC, settled a sex harassment lawsuit brought by the EEOC on behalf of 22 male waiters.  The waiters alleged they were subject to vulgar sexual comments, touching of their buttocks, and attempted touching of their genitals by a male manager.  The company denies liability, and said it wanted to get the matter behind it. 

Both state and federal discrimination laws protect either gender from sexual harassment.  "Sex" is defined not limited to biological gender.  It also covers sexuality and gender stereotyping.  Sex harassment is unlawful whether conducted against a person of the opposite gender or the same gender. 

Employers need to make sure they have effective anti-harassment policies and procedures in place.  Employers need to train employees so that they really understand what the law requires and what they can do in the event of unlawful behavior. 

22 men are $600,000 richer today because of same-sex harassment. 

Wednesday, November 14, 2012

Associational Discrimination -- The Zone of Interest and the EEOC

I thought I would give another update on EEOC enforcement strategies.  Citing the case of Thompson v. North American Stainless,LP., 131 S.Ct. 863 (2011), EEOC made reference to discrimination against a person due to his/her association with a person in a protected class. 

Miriam Regalado was Eric Thompson's fiancee.  She filed a complaint with the EEOC alleging sex discrimination.  The company fired Eric who then claimed that he suffered retaliation because Miriam had filed her complaint. 

The Supreme Court concluded that a person could file suit under Title VII if (s)he was a person aggrieved.  The test to determine if the person was aggrieved is whether or not (s)he was in the "zone of interests" sought to be protected by the law.  In this case, Eric was within the zone of interests.  He was an employee of the company.  Title VII was written to protect employees. 

Expect substantial litigation over the next few years on the issue of who might be within the zone of interests and thus a person aggrieved. 

Don't forget as well that in California, a person is protected by the Fair Employment and Housing Act ("FEHA") if:  (1) The person is in a protected class; (2) the person is associated with a person in a protected class; (3) the person is associated with a person who the employer perceives to be in a protected class; and (4) a person who the employer perceives to be associated with a person the employer perceives to be in a protected class. 

Wow!  That's a mouthful.  It's also another litigation nightmare for California employers.  Laws like this keep me employed. 

Email me if you need help avoiding or defending a claim made by a person within this zone of interests. 

Thursday, November 8, 2012

EEOC Cases Against Central Valley Employers

This morning, Anna Park with the EEOC, described several cases the Agency has prosecuted.  Three of them were against Central Valley employers.

Delano Regional Medical Center recently settled a case after preventing Filapino employees from speaking their native language.  The medical center did not prohibit other employees from speaking their native languages.

The EEOC sued ABM Industries after a supervisor sexually assaulted female workers.  The company attempted to defend itself by showing its anti-harassment policy.  However, none of the employees, including managers, could articulate the company's policy.

Olam Industries was prepared to hire an employee until she told them she was pregnant.  The job offer was then revoked.  Apparently, there were emails between the staffing agency that assisted in recruiting and Olam suggesting that the job should not be given to the applicant who was pregnant.

There are some good lessons to learn from these cases.  I recommend that employers attend our training seminars to learn how to avoid EEOC prosecutions.

EEOC Enforcement Focus -- Employers Beware

I am sitting in an EEOC training course in Los Angeles.  I will post some blogs about it today.  Here is what we have learned so far.

* Equal pay will be a focus of the Obama Administration.  Employers will probably be required to report pay information on annual EEO reports.
* the agency will go after employers whose policies bar employing anyone with a criminal background.
* The Commission has determined that gender identity (transgender issues) are covered under Title 7.
* The Commission is focusing on caregiver status.
* The Commission will be focusing on leaves of absences as a reasonable accommodation

This is a very aggressive agenda for the EEOC.  Employers beware.

Wednesday, November 7, 2012

The EEOC Sues Tenaya Lodge for Harassment and Retaliation

The EEOC issued a press release today stating that Tenaya Lodge will be paying $195,000 to settle a sex harassment and retaliation claim.  The plaintiff filed a complaint with the EEOC.  After investigation, the EEOC concluded that the plaintiff was subjected to harassment and discrimination.  The EEOC also concluded that other women were also victims of harassment.  This is what makes this case so interesting to me. 

The EEOC spoke with other employees.  During this process it found evidence, at least in its opinion, to pursue claims on behalf of other employees.  That discovery doubled the payout for the employer.  The plaintiff is receiving $100,000.  The $95,000 is set aside for other females at the business who have suffered harassment. 

It's not a pleasant experience to be accused of harassment or retaliation.  The process is expensive.  You pay your lawyer.  You may pay a settlement or judgment.  And you may pay attorneys' fees. 

And what's worse is that DNC Parks owns the property.  They run all of the concessions in Yosemite.  That means the next time I stop at the store in Wawona, I'll be charged a little more for my "It's It".  If you haven't eaten an It's It, you need to.  Ice cream in a cookie sandwich.  Great treat after a day of hiking or swimming in Yosemite. 

By the way, I will be at an EEOC training course on Thursday (at a hotel on the beach in Oxnard).  If you have a question you want me to ask the EEOC, email me. 

Tuesday, November 6, 2012

An Example of the Obama Administration's Hostility toward Religion: Hosannah-Tabor Church v. EEOC

By the time you read this, the election will be over.  However, in light of the great day it is when we can exercise our right to vote and select our leaders, I thought it would be appropriate to blog on the 1st great freedom found in the Bill of Rights -- the right to exercise one's religious beliefs.  In discussing this concept, I want to tell you about a small Lutheran school that came up against the might of the EEOC and the Obama Administration. 

In Hosannah-Tabor Church v. EEOC, the Obama Administration filed a discrimination and retaliation lawsuit against the school. Ms. Perich, a teacher at the school, took a leave of absence due to a medical condition.   Ms. Perich was upset the school had given her position to another when she was on an extended leave of absence (which was most of the academic year).  When she didn't get her job back, Ms. Perich filed a claim with the EEOC, the federal agency charged with investigating and prosecuting cases of unlawful discrimination. 

The school fired Ms. Perich because she did not resolve her dispute within the church, as mandated by church doctrine.   The EEOC considered this discrimination and retaliation and sued the small church-based school. 

The school took the position that it could hire and fire whomever it chose, in accordance with its religious doctrine.  In other words, the school based its defense on the 1st Amendment freedom of religion clause. 

The EEOC disagreed, contending that Title VII trumped the Constitution.  Do you see the problem?  I don't really care what religious doctrine was at stake, or what particular denomination was involved.  The troubling part of this situation is that the EEOC took the position that regardless of what the Constitution says about the freedom to practice one's religion, it doesn't trump a statute enacted in the 1960s barring discrimination. 

In fact, the Obama Administration took the position that not only did Title VII apply, but that there is no ministerial exception to Title VII.  In other words, a religious entity can't rely on its doctrine to defend against a claim of discrimination. 

The United States Supreme Court soundly criticized and rejected the EEOC's position.  Fortunately, the Court held that that a religious body can make the determination, based on its doctrine, to select leaders or teachers.  It was a great victory for religious belief.  The government was prevented from telling the church who it had to hire or fire. 

I hope that whomever wins the White House that our religious rights are protected better than they have been the past four years.  I think that most of us, if not all of us, can agree that merit, rather than ethnicity, age, gender and other similar characteristics should be used to make employment decisions.  I hope we also agree that religious bodies have the constitutional right to exercise their religious beliefs as they see fit. 


Friday, November 2, 2012

Stripping Pays -- Especially for Laywers!

The Los Angeles Daily Journal (a legal periodical) today reported on a $12.9 million settlement among "exotic" dancers (strippers) and the "gentlemens' clubs" (strip joints) where they plied their trade.  (Did you get the pun?)  Trauth v. Spearmint Rhino Companies Worldwide, Inc., Case No. EDCV-09-01316, (C.D. Cal., Order filed October 5, 2012).  Several of the dancers filed a class action lawsuit contending that they were misclassified as independent contractors instead of employees.  On top of that, they claimed their compensation was below the federal minimum wage, and that the businesses wrongfully charged the dancers for certain expenses.  (I bet you didn't know it was so expensive to remove your clothing in public.  I'm really glad you don't know that!) 

Dancers in six states will share about $10 million.  The lawyers representing them will receive over $2 million.  That is a lot of money.  Of course, there are many plaintiffs who must share the $10 million.  And there are far fewer lawyers who will split the $2 million. 

So why do I tell you about a stripper case in federal district court in Los Angeles?  Because it illustrates a very important point.  Many businesses attempt to save money on payroll tax obligations, workers' compensation premiums, fringe benefits and other costs by classifying employees as independent contractors. 

A business is an employer as opposed to a contracting party if it has the right to control the means and methods of the services provided.  I realize this is easier to say than to understand.  Many people like to consider some of the IRS questions to help them understand this concept.  For example, who provides the tools of the trade?  Who determines when the workers perform services?  Is the work of the kind that is typically performed by an outside business?  Does the worker maintain a business license and workers' compensation insurance? 

Except in obvious cases, I would suggest that an employer think very hard before classifying a worker as an independent contractor.  The costs associated with a challenge are not worth the risk.  $12.9 million in this case. 

The issue of misclassification can arise in many ways.  For example, a worker may be audited for non-payment of taxes.  The worker claims (s)he was an employee and the employer should have withheld the taxes.  Perhaps a worker injures him/herself and makes a claim on the workers' compensation policy.  Or a worker might claim unemployment insurance. 

Email me if you really want to engage a worker as an independent contractor.  Yes, I will probably try to talk you out of it.  However, if it is a true independent contractor situation, I can help you draft an agreement that can provide some protection for you. 

And if you ever get hit with liability for misclassifying a worker, you might consider stripping to help pay the bills.  Better yet, become a lawyer and represent the strippers.  There is more money on the lawyer's side.  And besides, we really don't want to imagine you in the buff swinging those hips around on stage in some seedy club! 

Monday, October 29, 2012

NLRB Prohibits Confidentiality in Harassment Investigations

Here goes the NLRB again, trying to make itself relevant in today’s modern, non-unionized workforce.  In the case of Banner Health System, 358 NLRB No. 93 (July 30, 2012), the NLRB determined that an employer’s instructions to employees not to discuss the investigation with co-workers violated the NLRA. 

Pursuant to section 8(a)(1) of the NLRA, it is unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  Section 7 allows employees to engage in concerted activities for collective bargaining or other mutual aid or protection.  The NLRB concluded that instructing employees not to discuss the investigation with co-workers "had a reasonable tendency to coerce employees in the exercise of their [NLRA] rights." 

Personally, it is important for me to conduct investigations that are not tainted by a “collective memory” created by employees conversing among themselves.  When employees converse, one perception is created.  Other perceptions or understandings are forgotten or ignored.  Of course, this occurrence can prevent an investigator from getting at the truth of the situation. 

In addition, the parties may be prejudiced by false or even true, but unkind, words about them.  Rumor may become fact.  Even the mere allegation, even without substantiation, can cause great harm.  Thus, I appreciate it when employees don’t discuss the merits of an investigation, at least until I have concluded my work. 

The NLRB does not seem to share my concern.  A generalized need to protect the integrity of the investigation is not sufficient to justify confidentiality.  What an investigator must show is:  (1) The need to protect witnesses; (2) a likelihood that evidence will be destroyed; (3) a threat that other testimony will be falsified; or (4) the need to prevent a cover-up.  Frankly, I think these four elements are a given in every case.  Witnesses should be protected, not just against retaliation, but also against potentially wrong (or false) allegations.  Evidence will be destroyed, or redefined, as employees discuss the incidents more frequently. 

I have to believe that a professor somewhere in this country has done a study on the effects of employee communications on the investigation process.  If not, I’m going to ask my buddy, Jim Schmidtke, a professor at Fresno State who has done some very good research on issues of harassment, to look into the matter.  This is a serious matter that the NLRB waded into without, in my opinion, much thought. 

I understand maybe if an employer threatens jobs we might have a different situation.  But the NLRB thinks its rule should apply whether or not an employer threatens discipline.  Wow!  Get real people. 

So what do you do?  Make sure your investigators understand this ruling.  Make sure you have competent investigators who know how to conduct investigations, get information from witnesses, and make witnesses feel comfortable with them and with the process. 

I would also vote for Romney.  I doubt the NLRB would be so assertive had it not been for the Obama Administration and its chumminess with unions. 

Friday, October 26, 2012

A New California Law Affecting Commissioned Employees

Labor Code section 2751 has been on the books for several years.  Historically, it required out-of-state companies to document, in writing, the commission structure for employees.  The court invalidated the provision because it treated out-of-state companies differently than California employers, and therefore was a violation of the Interstate Commerce Clause. 

Section 2751 has been amended to apply to all employers, including California employers.  It goes into effect on January 1, 2013.  According to this provision, the contract providing commissions must be in writing and must set forth the method by which the commissions are computed and paid.  (Labor Code section 2751(a).)  In addition, the employer must give a signed copy of the contract to every employee who is paid the commission.  The employer must also obtain a signed receipt for the contract from each employee.  (Labor Code section 2751(b).)  Thus, the commissions should be:  (1) in writing; (2) signed by employer; (3) setting forth the computation of wages; and (4) acknowledged by the employee in a receipt. 

Employers should also be aware that AB 469 went into effect last January (2012).  It requires employers to provide a "Notice" to all employees with certain information.  Here's a link to the Department of Industrial Relations that has the Notice for employers. 

Employers can probably comply with the two laws by providing commissioned employees with a Notice and an attached wage agreement setting forth the commission structure.  If you need help, email me. 

Wednesday, October 24, 2012

Tulare County Spends $300,000 On A Meritless Claim -- Why???

News media in the Central Valley has widely reported on Tulare County spending $300,000 to settle a lawsuit brought by a deputy district attorney, Todd Zocchi.  He claims that he lost his job after complaining that his boss, Shani Jenkins, sexually harassed him. 

Tulare County indicates that the Ms. Jenkins complained that Mr. Zocchi harassed her and engaged in threatening behavior in November 2011.   The County also claims that Mr. Zocchi was fired for non-discriminatory reasons, presumably after an investigation. 

After he was fired, Mr. Zocchi filed a lawsuit claiming Ms. Jenkins sexually harassed him.  The County says that Mr. Zocchi's allegation was not made known until after the termination decision was made.  However, apparently, Mr. Zocchi claims he was fired because he earlier made the allegation. 

The County hired an investigator who evaluated the claims of both Zocchi and Jenkins.  Apparently, the investigator sided with Jenkins and did not find Zocchi to have a viable claim. 

An attorney took the case of Mr. Zocchi anyway.  Now the attorney and his client are walking away with $300,000. 

So why did the County pay $300,000 to settle what it claims is a baseless claim -- as recognized by an independent expert?  County Counsel indicated there are many reasons to settle a lawsuit.  She mentioned expense, disruption of business, and the consumption of time.  I might add the cost of Mr. Zocchi's attorneys' fees if he were to prevail. 

So what happened?  Your guess is as good as mine.  Perhaps the investigator did not perform a competent investigation.  Perhaps new witnesses surfaced corroborating Mr. Zocchi's position.  Perhaps the County knows more than it is telling the public.  Perhaps the termination came after Mr. Zocchi complained. 

Employers should recognize that a claim of retaliation may be viable even though a harassment claim is not viable.  Timing can be everything with retaliation claims. 

What should you do to prevent these types of claims?  First, have a functioning policy and procedure protecting against unlawful discrimination and harassment.  Conduct training.  Follow through on implementation of the policy. 

Second, investigate properly and promptly.  Hire a good investigator.  Make sure the investigation is thorough. 

Third, consider the timing of any adverse action.  If it is after a complaint is made, then you could face a retaliation complaint. 

Fourth, consider an arbitration provision taking these types of cases out of the public eye and away from a jury. 

At the end of the day, we are left without answers as to this case.  $300,000 is a big settlement for a "meritless" claim.   There is a story here and I would love to learn more about it. 

Tuesday, October 9, 2012

It Couldn't Happen To A Nicer Group -- The SEIU

I hope I am not the only one to see the irony in this case -- Batarse v. SEIU, 2012 DJDAR 13523. 

Mr. Batarse interviewed for the position as a union rep for the SEIU.  In interviews he was asked why he was no longer practicing law.  He responded by saying he resigned due to personal matters and due to issues with his law partners.  I don't know about you, but that response is like waiving a red flag.  Doesn't anyone at SEIU have a clue?  They hired him anyway.

His boss, Ms. Sanchez, swore like a sailor. Batarse complained about Sanchez.  Seriously, didn't he know that vulgarity is common fare in the union world?  In fact, there are plenty of court cases that make reference to vulgarity used by union thugs (... oops did I really say that?  I meant to write representatives) and how vulgarity is not sufficient cause to terminate the employment of a union member.  He complained that Sanchez was discriminating against him due to his race and gender. 

After complaining the SEIU fired him and was replaced by a Hispanic worker.  Can you imagine the complaints that would come from the union if an employer fired a union member after he complained of unlawful discrimination?  Funny how the SEIU sings another song when the shoe is on the other foot! 

Turns out someone at the SEIU did some snooping.  The union determined that Batarse didn't have law partners, and therefore lied in the recruiting process.  He made other false statements.  Turns out Batarse was in some hot water with the state bar, and had disciplinary charges pending against him.  So he resigned.  He did not disclose any of this to the SEIU.  (Did the SEIU even ask?  Looks like the SEIU could use some HR help.) 

Batarse eventually lost the case.  He failed to comply with the legal process.  And he failed to provide the evidence necessary to show that the SEIU decision to terminate was not credible. 

I learn a lot from this case.  First and foremost is to hire right.  Conduct background checks.  Ask specific questions.  Verify answers. 

Second, don't fire someone soon after (s)he complains of discrimination.  SEIU won this case.  I wonder, however, whether the result would have been different had a lawyer represented him.  (Batarse handled the case himself.  Probably prime evidence of why he had trouble with the state bar.) 

Third, keep vulgarities and other offensive words out of the workplace.  While the employer might win a case involving vulgarity, it gives rise to a claim and litigation. 

You gotta love this case.  Union.  Swearing.  Inability to get along.  And a lawsuit.  It couldn't have happened to a nicer group of people!

Tuesday, October 2, 2012

Employee Handbooks -- Updates for 2013

I think I got your attention with yesterday's post.  I hope so.  Now give me two more minutes of your time. 

California is a difficult place to do business as an employer.  We have too many laws governing the workplace.  The volume of laws, as well as the complexity of these laws, spurs litigation. 

Litigation is expensive.  I use a case against Ruiz Food, a large Central Valley employer, as an example.  A former employee sued the company for perceived disability discrimination.  The employee did not have a substantial wage loss.  The case took about two years to get to trial.  At the end of the trial, the jury awarded the plaintiff about $42,000.  That is not a lot of money after two years of litigation.  I suspect Ruiz could say it "won" the case, with such a small award. 

However, the plaintiff's attorney made a motion for attorneys' fees.  The court awarded the attorney $428,000 in fees.  (That doesn't even take into consideration what Ruiz Food paid its own lawyers.) 


My focus is to help employers comply with the laws governing California workplaces, whether created by legislation, regulation or court opinion.  I don't want my clients to face litigation, potentially large verdicts and even larger awards for attorneys' fees. 

We are coming up on the end of 2012.  New laws go into effect in 2013.  Many court cases have made an impact on how employers manage their workplaces.  Regulatory agencies, such as the NLRB, have made an imprint on how we manage the workforce. 

Your handbook should reflect those changes in the law.  The handbook should be a tool managers can use as a guide to handle personnel issues when they arise on the job. 

Our handbooks do just that.  And I will be developing new policies and procedures for use in handbooks in 2013.  If you have a handbook that has not been updated for a few years, now is the time to get it done.  Be ready for the new laws in 2013.  Send me an email or give me a call. 

Monday, October 1, 2012

California Gives Two Thumbs Up For Breasts

Breastfeeding, not really breasts, got the two thumbs up this past week.  Governor Brown signed an employment-related bill -- AB 2386 -- making "breastfeeding or medical conditions related to breastfeeding" part of the Fair Employment and Housing Act definition of "sex."  In other words, an employer cannot discriminate against an employee because she is breastfeeding. 

I don't think the law was needed.  A few years ago, the Fair Employment and Housing Commission ruled in DFEH v. Acosta Tacos that an employer violated the law by discriminating against his employee for breastfeeding while on lunch or break.  Whether or not needed, the law is now codified and becomes effective in 2013.    

Friday, September 28, 2012

Asking Employees for the Facebook and Social Media Passwords

Thank goodness the California Legislature has acted swiftly to avoid an economic catastrophe ... Oh, that's right, it didn't.  But at least we have the Legislature worrying about employees' rights to lead a secret social media life without employer scrutiny. 

The governor signed AB 1844.  It prohibits an employer from asking or requiring an applicant or employee to:
  • Divulge a social media username or password;
  • Access social media in the presence of the employer; or
  • Divulge any personal social media. 
This law does not affect an employer's "existing right or obligation" to request disclosure of social media information if it is reasonably believed to be relevant to an investigation of misconduct or violation of law.  Notice that the disclosure in this case need not relate to particular employee whose media may be examined.  However, what does the law mean when it says "existing right or obligation"?  I am not aware of another law affording an employer the express right to examine social media.  Nor am I aware of any law that specifically obligates an employer to examine social media. 

Presumably, this exception was intended for those situations when an employee uses social media to harass another worker.  However, the law does not clearly articulate this point.  Where there is ambiguity, there is litigation. 

Moreover, what must an employer show to prove that it "reasonably believed" the social media to be relevant to an investigation of wrongdoing? 

And what happens when the social media does not contain information related to the allegation of wrongdoing, but might have information regarding wrongdoing in another matter that was unknown to the employer?  Can that information be used to conduct a new but "related proceeding"?  Or must the related proceeding be based on information discovered someplace other than the social media? 

Social media continues to be a confusing area of the law.  Employers must carefully develop social media policies and carefully enforce those policies. 

Perhaps another consequence of these laws is to simply encourage employers to terminate the employment of employees without making a request in violation of AB 1844.  If requesting access to social media could lead to litigation, why not just terminate the employment relationship?  Provided that the action does not breach an employment contract or violate public policy, the termination probably won't result in litigation.  In fact, AB 1844 allows employers to terminate the employment relationship if it is otherwise not prohibited by law. 



Thursday, September 27, 2012

Does It Really Take An Appellate Court To Tell Us Check Fraud and Timecard Fraud Are Grounds For Termination? Dutra v. Mercy Medical Center Mt. Shasta

Ms. Dutra was upset with her employer, Mercy Medical Center, when she was confronted about her gossiping (for which she had been disciplined in the past), check fraud and time card fraud.  She, with her union representative, attended a meeting with her supervisors.  These three issues were discussed, and given, as grounds for the termination of her employment. 

Ms. Dutra did not back down, and sued Mercy Medical Center for defamation, and wrongful termination in violation of Labor Code section 132a.  This code section prohibits an employer from discriminating against an employee because the employee has been injured on the job or has filed a workers' compensation claim.  Three months prior to the termination, before the acts of fraud were discovered, Ms. Dutra fell on the job and injured herself. 

Defamation Occurring During The Termination Meeting

The claim of defamation was based on the meeting among the supervisors, union steward and Ms. Dutra.  It is interesting to me that a defamation claim could have been brought in the first place.  The supervisors were Mercy Medical representatives.  Therefore, they were not "third-parties".  Thus, a defamation action should not be permitted when the communications were made by and in the presence of the company's management representatives.  Moreover, the union steward was present at Ms. Dutra's request.  He was her representative.  She had the right to have a union representative present.  Mercy Medical could not prevent the steward's presence.  Therefore, it seems to me that a defamation lawsuit should not be permitted to go forward because Ms. Dutra brought her representative. 

Mercy Medical still prevailed on the claim, but did so because of a privilege under Civil Code 47(c).  A privilege means that even if the communication was made to a third-party, it was privileged and cannot be the basis for a defamation lawsuit. 

Civil Code section 47(c) permits one interested person (Mercy Medical) to make a statement to another person of interest (steward) without incurring liability for defamation, provided the statement was made without malice.  In this case, the Court of Appeal concluded that the only reasonable interpretation of the statements made during the employment termination were made without malice (presumably to inform Ms. Dutra of the charges against her). 

It might appear obvious to an HR professional that statements made to an employee and her representative at a termination meeting should not form the basis of a defamation claim.  However, few things are obvious in the law, or the California HR world.  Now employers can rely on this case for the position that such statements are privileged. 

Labor Code Section 132a Claims Must Be Brought Before The WCAB

Ms. Dutra also claimed that the termination occurred because she was injured three months earlier.  Section 132a allows an employee to assert this claim before the Workers' Compensation Appeals Board ("WCAB").  However, Ms. Dutra made the argument that section 132a claim could be asserted as a civil action for wrongful termination.  She based this argument on the case, City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, which said that the WCAB was not the exclusive remedy for claims brought by an injured worker against his/her employer.  Moorpark specifically said that an employee injured on the job could assert a 132a claim before the WCAB and also a cause of action for wrongful termination for disability discrimination in a civil court. 

Moorpark has been used incorrectly in my opinion by many plaintiffs' attorneys.  I had such a case.  The court permitted the plaintiff to assert a 132a claim in civil court, in spite of my urging that the claim must be brought before the WCAB.  I argued that the WCAB has exclusive jurisdiction of 132a claims -- something that was supported by years of case law.  However, the court, relying on Moorpark, concluded that a 132a claim could be brought as a civil claim. 

Ms. Dutra was not lucky on this claim.  The Court of Appeal correctly held that section 132a cannot be the basis of a claim for wrongful termination in violation of public policy.  Section 132a provides a procedure for adjudication.  It also provided a very specific remedy.  If a litigant could make a 132a claim in civil court, it would eviscerate both the procedure and remedy provided by section 132a. 

Why Is It So Difficult To Get Rid Of A Problem Employee?

It shouldn't be this difficult to terminate the employment of a worker who engages in check fraud, time card fraud and gossip.  It seems to me that firing a person for fraud is a "no-brainer."  I am disappointed the courts allowed the claim to persist so far. 

This case is instructive on several levels.  First, maintain at-will employment.  I have already posted a blog on how to maintain at-will employment.  This will at least eliminate claims of breach of contract. 

Second, explain the reasons of termination to the employee alone.  I understand that an employee may have the right under a collective bargaining agreement to bring in a union representative.  Work with it.  But if this does not exist in your workplace, inform the employee without others present.  Those who should be present on the employer's side are the HR Director and the supervisor. 

Third, be prepared with good evidence of wrongdoing.  If you claim check fraud, then have evidence showing check fraud.  If you claim time card fraud, obtain the evidence of time card fraud.  Be prepared to litigate the matter.  Defamation is actionable only if the statements made are untrue.  Truth is the ultimate defense. 

Fourth, be prepared to fight.  A good offense is often the best defense.  Make sure employees understand that you devote the resources necessary to protect your company.  If you do this on one case, your other employees know what they can expect if they file a lawsuit. 

Tuesday, September 25, 2012

Reporting Time Pay, Split Shift Premiums & Attorneys' Fees

In Aleman v. AirTouch Cellular, 2012 DJDAR 13269, a group of customer service representatives who sold cell service and equipment in kiosks filed suit claiming the company did not pay them properly for attending store meetings.  The company required employees to attend periodic training meetings lasting approximately 90 minutes.  Sometimes the meetings ended early.  In addition, some employees were required to attend the meeting and then report to work at a later shift in the day.  The primary claims asserted were that AirTouch did not pay reporting time pay or split shift premiums. 

Reporting Time Pay
Under California wage orders, if an employee reports for work as required, but is not provided at least half of his/her scheduled or usual shift, then the employee must be paid half of his/her scheduled or usual shift, no less than two hours, no more that four hours.  This is referred to as reporting time pay. 

Employees testified that they were asked to attend a 90 minute meetings, but that the meetings would end 30 minutes early.  They claimed that under the reporting time pay provision of the wage order, they were entitled to two hours of compensation.  (A very disingenuous claim!) 

The court examined the language of the wage order.  Employees were scheduled to work 90 minutes.  They attended a meeting that lasted 60 minutes.  This was more than half of the scheduled shift.  Thus, the reporting time pay provision does not apply. 

Split Shift Premiums
When an employee works a split shift, one hour of pay must be paid to the employee in addition to the minimum wages for the workday.  This is referred to as a split shift premium.  Employees who attended the training meeting and then reported for work later in the day claimed they were entitled to receive the split shift premium. 

The court denied the relief requested.  It reasoned, consistent with the position of the DLSE, that if the employee's wages for the day are more than minimum wage plus one hour of minimum wage, a split shift premium has already been paid.  AirTouch employees earned an hourly rate of pay that when multiplied by the number of hours worked, exceeded minimum wage for those hours plus one additional hour at minimum wage.  

Attorneys' Fees
This is where the case gets interesting.  AirTouch sought attorneys' fees for successfully defending against these two claims.  The trial court initially awarded AirTouch approximately $300,000 in fees, which was appealed.  The Court of Appeal remanded the cast to the trial court for a review of the attorneys' fees issue in light of Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244.  (Discussed in a prior blog.)

The award of attorneys' fees depended upon whether the lawsuits were brought under Labor Code section 1194 or 218.5.  Section 1194 is a one-way attorneys' fee provision.  It applies to lawsuits for unpaid minimum wages or overtime.  Only a successful plaintiff can recover attorneys' fees under section 1194. 

Section 218.5 is a two-way attorneys' fee provision.  It applies to lawsuits for the non-payment of wages.  A successful defendant as well as a successful plaintiff can recover attorneys' fees under section 218.5. 

The court concluded that a claim for a split shift premium is a claim for unpaid minimum wages.  Therefore, section 1194 applies to these cases.  However, a reporting time pay claim is not a claim for unpaid minimum wages or overtime.  Thus section 218.5 applies to these claims. 

On remand, the trial court awarded attorneys' fees to AirTouch on the reporting time pay provision. 

What Does This Mean?
Many employment-based lawsuits are focused on attorneys' fees.  Consider the barista who sued Starbucks for not providing him with what he considered to be his full reporting time pay.  A lawsuit was brought on a claim of less than $10.  Why?  Because the attorney believed he could make big money. 

What I predict is that attorneys will be less likely to bring frivolous or negligible claims for reporting time pay.  Attorneys, or more appropriately, their clients, will be less willing to risk an adverse claim for fees in the event they are unsuccessful.  (By the way, it is not the unsuccessful attorney who pays the other side's attorneys' fees; it's the unsuccessful litigant.)  Rather, attorneys will focus on claims governed by section 1194, where a successful employer won't have the right to seek attorneys' fees if it prevails. 

But my advice doesn't change.  Employers should focus their efforts on compliance.  Avoiding the claim is the least expensive alternative for an employer. 


Tuesday, September 18, 2012

Avoiding Grade Inflation on Personnel Evaluations -- Brutal Honesty

Per our firm's practices, we periodically purge files.  Recently, I reviewed a file containing old seminar materials.  In the file were examples of poor employer behavior. 

Years ago I had a client, an owner of a prominent company, tell me that his secretary, who was recovering from back surgery was a horrible employee.  He told me this as she was preparing to return to work after a leave of absence.  She had requested, as an accommodation, a special chair and the opportunity to stand and stretch or walk more frequently than one every couple of hours. 

The owner could not put up with those restrictions and he wanted me to know that she had never been a good secretary.  Get rid of her was his direction. 

Having examined situations like this on numerous occasions, I decided to look at the secretary's personnel file.  On top was the most recent evaluation.  On a scale from 1 to 5, with five being "excellent" the secretary 21 top scores.  The remaining scores were all 4's, or "very good." 

I did not advise firing the employee.  I recommended providing an accommodation and working through whatever problems they had. 

This evaluation demonstrates a serious problem that arises when an employer uses grade inflation on a review.  Assuming the owner was telling me the truth, the secretary was not a competent employee.  However, he gave her top scores.  Was he trying to avoid confrontation?  Was he hoping she would quit before he had to speak with her? 

Assuming the owner was telling me an untruth, the evaluation contradicted him. 

In a lawsuit, neither position is enviable.  Think of it.  What will a jury think if it hears the owner say, "She was a terrible employee" but sees a stellar evaluation?  The jury is likely to think the owner is a liar and he really wants to fire her because she took a leave of absence and wants an accommodation.  The only way the owner wins is if he convinces the jury that he actually lied on the evaluation, which was suppose to be a candid and truthful assessment of the employee's performance.  That is NOT the argument to present.  That is not the argument the employer will win. 

Most employers do not provide accurate evaluations for one of two reasons:  (1) They are too lazy to put in the time to provide a careful assessment; or (2) they want to avoid confrontation.  Neither reason justifies the employer's behavior. 

Employees deserve to receive an honest evaluation.  Their livelihood depends on it.  They want to improve and become of greater value.  Thus, it is imperative that an employer provide an honest assessment. 

In addition, an employer wants to avoid lawsuits.  They are avoided with honest assessments, not dishonest silence.  When an employee with high evaluations receives word of a termination what will(s)he think?  The employee will think that someone had it in for him/her.  The employee will think that there is an unlawful reason for the termination.  The employee will find a lawyer and attempt to articulate a claim. 

In the case I described, the employee would have thought, "I am being fired because I have a disability and took a leave of absence."  That gives rise to a lawsuit -- and attorneys' fees.  That's a great case for a plaintiff's lawyer.  Years of dedicated service.  Elderly secretary.  Stellar reviews.  Fired only after she experienced a health problem. 

That is a big money case! 

So what should an employer do?  Be brutally honest.  Tell the employee where the deficiencies are.  Give examples.  Provide training opportunities to improve.  If performance does not improve, then you go to the employee and say, "It's not working out." 

And guess what?  The employee doesn't have to guess why the decision was made.  The employee says, or at least thinks, "I understand.  I have not improved on my performance."

Now that's how to avoid a lawsuit.  Be honest.  Be fair.  Be candid. 


Wednesday, September 5, 2012

Maintaining At-Will Employment In California -- Good, Better and Best Methods

California employers love at-will employment.  It is a valuable tool that allows employers to take adverse action against employees while lessening the risk of litigation.  The problem arises, however, when an employer does not take appropriate steps to maintain at-will employment. 

The Parameters of At-Will Employment

Per Labor Code section 2922, "An employment, having no specified term, may be terminated at the will of either party on notice to the other."  This means that if an employer hires a worker and does not specify the term of employment, then the relationship can be terminated by either party.  That's at will employment -- the ability to terminate the employment relationship without notice, reason or obligation. 

However, at-will employment is not absolute.  An employer cannot terminate the employment relationship if doing so violates public policy.  For example, an employer cannot fire a worker because of the worker's age, race, religion, or other protected classification.  Such action would constitute unlawful discrimination.  The law protects also protects workers for other reasons as well.  For example, an employer cannot fire an employee because the employee has complained of safety violations.  When an employer engages in these types of activities, it is violating public policy.  At-will always gives way to public policy. 

A second type of wrongful termination claim is breach of the employment contract.  An employer cannot breach a term of an employment contract when ending the employment relationship. 

Implied Contracts of Employment

Most employers don't have express written contracts with their employees.  Rather, the employer merely informs the employee that (s)he has been extended a job offer for a certain position for a certain wage.  The letter might even say that the employment relationship is at-will.  However, this does not resolve the issue of at-will.  An employer's subsequent behaviors, coupled with other factors, may imply a contract of employment. 

Factors that may imply a contract of employment include industry practices, the length of the worker's employment, and an employer's policies and practices.  Moreover, the fact that the agreement is "implied" makes termination issues even more difficult because the conditions for termination are not clearly articulated.  Instead, the ability to terminate is phrased in terms such as "good cause" or "just cause". 

The problem with the standard of "just cause" is two-fold.  First, what is just cause, or in other words, when does the employer have cause sufficient to terminate?  Second, who makes the determination of just cause?  Perhaps the answer to the second question will help answer the first question.  If a worker sues its employer, the jury makes the decision of just cause.  Jurors typically are not business owners, HR professionals, or senior managers.  Juries are often made up of government employees (who understand civil service), retired persons, the unemployed and staff employees.  More likely the jury will be more closely aligned with the worker suing the employer. 

What cause is just?  It will depend on the jury.  This is not an enviable position for an employer. 

Typical Faux Pas Creating Implied Contracts of Employment

The most common way for an employer to create an implied contract is with a policy of "probationary employment."  Probation typically considered a testing time when the employer can terminate the employment relationship for any reason and at any time.  Probation is the equivalent of at-will employment. 

What is the employee's status at the end of probation?  I often hear terms such as "regular" or "permanent".  These are not terms consistent with at-will.  They suggest that the worker cannot be fired but for just cause. 

Another common practice that implies a contract of employment is progressive discipline.  Such a policy suggests that an employee will not be fired unless certain steps or procedures are followed.  Combine poor documentation with a progressive discipline policy an an employer has no evidence that the worker is unsatisfactory and that sufficient cause exists for termination of employment. 

Employers often make statements, without considering the consequences, that suggest an implied contract.  For example, during an evaluation, the boss says, "We enjoy having you here at XYZ Corporation; you have a job here as long as you want." This might imply employment that cannot be terminated but for just cause. 

Methods to Maintain At-Will Employment

So how can an employer maintain at-will employment?  In my practice I have seen several methods of maintaining at-will employment.  However, these methods are not equal.  All are good.  But some are better and one is best. 

Good.  Most employers will include at-will language in documents communicated to employees.  For example, an offer letter with reference of at-will is a good way to maintain at-will employment.  Similar language can be found in an application for employment or a handbook. 

Better.  A better way to maintain at-will employment is by having the employee acknowledge at-will status.  For example, when completing orientation, an employer may ask its employee to acknowledge his/her at-will status.  This is better than simply informing the employee of his/her at-will status because it shows the employee's understanding as well. 

Best.  There is yet an even better way to maintain at-will employment.  It is done by entering into a contract with a worker for at-will employment.  A contract is better than an acknowledgement.  It is something to which the employee has given his/her assent, and not merely an acknowledgement of understanding. 

The contract is also best because it should include an integration clause.  This clause prevents an employee from introducing evidence from outside the  employment agreement.  Thus, if the handbook includes a poorly-drafted policy implying at-will, the integration clause prevents it from being introduced at trial. 

I recommend that all my clients use at-will employment agreements with integration clauses for all employees.  It is the absolute way to avoid a claim of breach of the implied employment contract.  I also like to add an arbitration provision in the contract.  But that's a subject for another blog. 

Wednesday, August 29, 2012

When Employees Engage in Political Activities

Recently, a federal judge in Virginia ruled that a litigant's action of clicking the "like" button on a Facebook page did not merit protection by the First Amendment of the United States Constitution.  The litigant, Daniel Carter, expressed his support for a candidate for sheriff.  However, the candidate was not his boss, the current sheriff, B.J. Roberts.  When Mr. Roberts discovered his employee's action, he told him to stick with him, not the opponent. 

After winning re-election, Mr. Roberts fired Mr. Carter and others.  Mr. Carter claimed that the termination was wrongful, and violated his free speech rights under the Constitution.  The court disagreed, concluding that the simple act of clicking a button did not merit 1st Amendment protection. 

I am amazed at this decision.  Of course Mr. Carter's actions were an act of speech.  It's not too much different than placing a sign in one's yard -- a simple act which conveys a message of support.  It's not unlike buttons worn for the 1956 presidential election -- I like Ike. 

What happens to an employer in California who takes action against an employee for expressing a political viewpoint?  Labor Code section 1101 prohibits an employer from preventing employees from participating in politics or from becoming a candidate for office.  Section 1102 prohibits an employer from threatening to fire an employee for adopting a particular political position. 

Moreover, it would be an unfair labor practice to take action against an employee for expressing affiliation with or taking action in favor of a union. 

I am also confident that many judges would consider clicking a "like" button on Facebook, or taking similar action on another social media site would constitute speech protected by the 1st Amendment. 

As the rhetoric heats up and the candidates demonstrate more rancor, employers can be sure that their employees will be emotionally engaged.  Employers can require employees to perform their work during work hours -- as opposed to engaging in political acts.  And of course, an employer can hold employees to standards of decency and civility in the workplace.  However, off the clock an employee is free to engage in protected political speech. 

"But what if the employee wears a political badge or displays a bumper sticker in the workplace?  Can I discipline him/her?"  I don't have enough facts to answer the question.  Sorry, you will have to call with specific questions.  This blog can only provide you with general guidance. 

Good luck and may the best candidates win!

Monday, August 20, 2012

Not All Is Well On Wisteria Lane -- A Desperate Housewife And A Desperate Lawsuit

Last week the California Court of Appeal ruled on the lawsuit between Nicollette Sheridan (Edie) and Touchstone Television Productions, the company that produced the TV show, Desperate Housewives.  Sheridan sought $20 million in compensatory damages as well as punitive damages.  Hard to believe that life behind the scenes could be as dramatic as life on camera. 

Edie sued alleging the company wrongfully terminated her employment.  According to the written employment agreement, the company signed Sheridan to a one-year contract with options to renew services for six seasons.  Touchstone renewed the contract for five seasons, but chose not to renew for the sixth season. 

Sheridan argued that Touchstone fired her because she complained that the show's creator, Mark Cherry, had battered her.  The case went to trial and the jury deadlocked. Touchstone moved the court for a directed verdict on the grounds that it did not fire her but just did not renew her contract for a sixth year.  The court refused and the company appealed. 

The Court of Appeal concluded that an employee cannot sue its employer for refusing to renew a contract.  Thus, whether or not the company's decision not to renew Sheridan for a sixth season was related to Sheridan's complaint against Cherry is not actionable as a tort. 

This has been the established law in California for many years.  I can't understand why the claim was not dismissed well before trial. 

It is important for employers to understand this distinction between termination of employment and non-renewal of contract.  When an employer exercises discretion and does not renew a contract, it is not breaching an agreement.  Nor is it engaging in wrongful termination.  Rather, the employment relationship ends as time expires.  This is why we recommend that employment contracts not extend for lengthy periods of time.  If an employer is dissatisfied with an employee's performance, or simply does not want to employ the worker any longer, the employer need only wait until the end of the employment period.  Such a provision can eliminate a claim, such as wrongful termination in violation of public policy. 

In this case, the Court of Appeal is allowing Sheridan to amend her complaint to articulate a claim based on section 6310 of the Labor Code.  This code section allows a person to prosecute a claim that she was discriminated against or discharged because she complained about unsafe working conditions.  However, this cause of action is limited.  The complaint must actually address an unsafe condition in the workplace.  It is questionable (in my opinion, unlikely) that Cherry's alleged action was an unsafe working condition.  Moreover, damages are limited to lost wages and benefits.  Section 6310 does not provide for attorneys' fees. 

Touchstone is in a good position in this case.  The primary claim has been eliminated.  Now Sheridan must allege a viable 6310 claim in order to move forward. 

Lawsuits can have happy endings?  Do TV soap operas ever have happy endings?  Do they ever end?

Wednesday, August 15, 2012

Accommodating Religious Practices in the Workplace -- Disney in the News

The Los Angeles Daily Journal, a legal newspaper, is reporting that Imane Boudhal is suing Disney, claiming that she was sent home three times without pay for wearing a hijab while working as a hostess at the Storytellers Cafe.  A hijab is a Muslim headscarf.  According to an attorney for Ms. Boudahl, there are or have been four other similar lawsuits against Disney.  (As a sidebar, if one employee has been successfully represented by a lawyer, every other worker with a gripe tends to gravitate to the same lawyer.) 

This lawsuit raises the issue of what an employer must do in order to accommodate workers' religious beliefs and practices. 

Title VII (federal law) and the California Fair Employment and Housing Act ("FEHA") both prohibit an employer from discriminating against an employee based on religion.  These laws also require employers to make reasonable accommodations that would allow employees to exercise their religious believes and engage in religious practices.  HR professionals will recognize the language "reasonable accommodation" which is a phrase often discussed in the context of disability discrimination. 

An employer is required to provide a reasonable accommodation to an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship.  The issue of "undue hardship" is another concept with which HR professionals are familiar when dealing with disability discrimination.  However, this term means different things in these two contexts. 

For disability purposes, undue hardship means significant difficulty or expense.  In fact, employers recognize that proving undue hardship for disability purposes is extremely difficult.  Most employers avoid that issue because it is often a losing battle. 

For religious purposes, undue hardship means more than a de minimus cost or burden.  Wow!  According to the dictionary, de minimus means "so minor as to merit disregard."  (  Factors considered include the cost of the accommodation in relation to the size and operating costs of the employer, and the number of persons who need a particular accommodation.  Undue hardship results if an employer is required to pay overtime or hire more persons in order to accommodate religious practices.  Undue hardship is also created if the accommodation infringes on other employees' job benefits, jeopardizes safety, or reduces efficiency and productivity. 

It is interesting to me that the duty to accommodate religious beliefs is a lesser duty than accommodating disabilities.  The practice of religion is expressly protected by the federal and state Constitutions.  It seems to me that with express constitutional protection should also come a higher duty than to accommodate conditions protected only by statute.  I have felt as though that is due to the hostility by some to religion.  It is very evident in today's society that a group of persons is attempting to prevent those with religious beliefs from participating in the political forum.  But that is the subject for a future blog. 

Of course, every case will be examined based on its own merits.  Nevertheless, hopefully an understanding of these basic principles will help employers understand their obligations with respect to accommodating employees' religious beliefs and practices.