My Last Blog ... Here ... So Go There

Over the past few months we have developed a new website at Fishman, Larsen, Goldring & Zeitler.  I hope you like it.  We recently added our blogs as part of our website development.  So from now on, I will blog from there.  Just click here and you will be transported to my new blog page. 

When you arrive at the new web page, click the button next to "Alert me when new articles are available" and complete the sign-in information. 

I hope you enjoy the new format.  You are welcome to sign up for our other blogs too. 

To encourage you to sign up for the alerts, I have posted a blog about a situation at Kaweah Delta hospital.  I will send a Starbucks card to you if you are the first to sign up and answer the question:  What are the two theories to impose liability on the employer because of the bad acts of employees?  The answer is in the blog. 

Amy's Baking Company Would Be In Big Trouble In California!

I read an interesting article about Amy's Baking Company in Scottsdale, Arizona.  Perhaps they can bake a mean cake, but they can't manage people. 

The company compels employees to sign an agreement with these, and other, provisions: 

• Employees pay the costs of any damage to company equipment or products due to employee negligence;
• Employee gives up his/her right to tips, which belong to the restaurant, in lieu of receiving a wage of $8 to $12 per hour;
• Employers are penalized $250 per day if they miss a shift on a weekend or holiday; and
• Employee's can't work for a competitor within 50 miles for a period of one year. 

My advice for employees -- STAY AWAY

With that said, let's have a little fun.  I will send a Starbucks or Jamba Juice card to the first person who emails me the correct answer to this question:  Identify the Wage Order Provision, the Labor Code provision, and the Business & Professions Code Provision that would be violated if Amy's Baking Company was in California.  

Black Swan -- A Dirty Little Secret in Hollywood

Another seedy side of Hollywood is making an appearance in the mainstream media.  Interns who worked on the film, Black Swan, have sued Fox Searchlight claiming they were employees entitled to wages under state and federal law.  Other "interns" and lawyers are jumping on the bandwagon in an attempt to recover wages and fees, respectively. 

The interns claim that they did not meet the test as interns under the Fair Labor Standards Act.  I wrote about this in the blog a few months ago.  Here's the link to that blog.  http://californiahr.blogspot.com/2013/04/when-is-intern-really-intern.html

The interns claimed that they really did not receive training in an educational setting as is required to have a valid internship.  Instead, these interns performed "grunt" work that would have been performed by employees if the interns were not present. 

Fox Searchlight has countered with an intriguing defense.  It claims that it was not the employer of the plaintiffs.  As it turns out, when Hollywood makes a film it creates a separate company.  In the case of Black Swan, a company called Lake of Tiers Inc. was created to hire the interns and other workers.  Once the movie is produced, these companies, like Lake of Tiers Inc., cease operations.  Importantly, these companies lack any assets from which a judgment could be obtained.  Fox Searchlight claimed that this "production" company, not Fox, was the plaintiffs' employer. 

The court recently issued a ruling rejecting the argument made by Fox.  It found that Fox had unbridled discretion to fire interns, and supervised them closely.  Under the law, the actions by Fox made it an employer subject to liability under the FLSA. 

So how has this practice escaped scrutiny for so long?  Probably because interns did not want to make waves and become blackballed in the industry.  Fortunately, this lawsuit will put the spotlight on Fox Searchlight and other Hollywood companies.  People should be paid an honest day's wage for an honest day's work.  With the unbelievable compensation paid to many in the industry, there is no reason not to pay interns for performing services rendered. 

E-Verify and the Senate's Immigration Reform Bill

The Senate passed an immigration reform bill earlier this week.  Among its many pages is a provision requiring, at least some employers to use E-Verify before hiring workers.  E-Verify is, in my opinion, a much better system than having employers review approved documentation, per the I-9 form, to verify eligibility to work.  Although the ACLU and other groups claim it is not sufficiently accurate, I have found E-Verify to be very accurate.  It is a much better indicator of who is eligible to work in the USA. 

Several years ago a few California cities passed laws requiring private employers to use E-Verify.  Our state legislature then passed a law prohibiting cities from enforcing these laws.  The justification for the state law was, at least on the surface, that E-Verify is not accurate and could harm persons who are eligible to work.  I highly doubt that was the real reason for the law. 

One of the best deterrents to illegal immigration is preventing employers from hiring these immigrants.  If they can't find jobs, they won't have the incentive to come to the USA without proper authorization.  If any politician is serious about stopping illegal immigration, (s)he must advocate in favor of use of the E-Verify system. 

It will be interesting to see if immigration reform does happen.  If it does, I will be very interested in whether the E-Verify requirement will be firmly rooted in the law.  It should be.  It is the best method to determine eligibility to work in the USA.  It also takes the burden off the employer's back to determine whether the appropriate I-9 paperwork is legitimate or a forgery. 

Mixed Motive Is Not The Standard for Retaliation Cases Under Title VII

The Supreme Court ruled Tuesday on the standard used to evaluate whether an employer retaliates in violation of Title VII.  A plaintiff must show that "but for" the retaliation, (s)he would not have suffered adverse action. 

Title VII is a complex statute.  Under a specific provision of Title VII, all that a plaintiff needs to prove is that discrimination was a motivating factor in an employer's decision.  (42 U.S.C. Section 200e-2(m).)  Even if the employer had a valid, non-discriminatory reason for its actions, the employer is liable for unlawful discrimination. 

The retaliation provision of Title VII is separate from the discrimination provision.  It requires the plaintiff to show that the employer retaliated "because" (s)he opposed an unlawful practice or participated in a proceeding.  (42 U.S.C. section 2003e-3(a).)  In Univ. of Texas Southwestern Medical Center v. Nassar, 2013 DAR 8160, the Supreme Court said this provision means what it says.  It is not sufficient for an employee to claim that his/her opposition or participation was one of multiple reasons.  Retaliation must be the only decision. 

Of course, this decision greatly distressed the left-leaning justices of the court.  Even though the claims are based on two separate provisions in Title VII, with different language, they thought the lower, mixed-motive standard should prevail.  Oh well, this will give liberals another opportunity to introduce legislation to make suing an employer easier to do. 

I am not sure what impact the federal case will have in California.  You might remember that the California Supreme Court issue a ruling on mixed-motive retaliation cases under the Fair Employment and Housing Act (FEHA).  (Read my blog from February 11, 2013.)  The state court allowed mixed-motive cases to proceed.  However, the plaintiff is precluded from recovering damages.  Nevertheless, the plaintiff's lawyer can still recover his/her fees. 

Isn't that justice! 

Who Is A Supervisor Under Title VII? Vance v. Ball State Univ.

The United States Supreme Court today ruled on who is a supervisor for purposes of federal civil rights laws.  The Court had previously held that an employer is strictly liable for the harassing acts of its supervisors.  However, an employer is liable for the acts of the complainant's co-workers only if the employer was negligent (knew or should have known of the harassing acts).  

In Vance v. Ball State University, Case No. 11-556, the plaintiff complained that a fellow worker glared at her, smiled at her (oh, how evil!), and banged pots and pans around her in the kitchen where they worked.  while the parties disputed the co-worker's duties, they agreed she did not have the power to hire or fire Vance or others.  Vance, and the EEOC, nevertheless contended that the co-worker's level of control made her a supervisor giving rise to the employer's strict liability.  

A sharply divided Supreme Court held that a worker is not a supervisor unless he or she is empow­ered by the employer to take tangible employment actions against the victim. The Court expressly rejected the EEOC's "murky" and "open-ended" test that creates ambiguity, and thus litigation.  It provided a clearer test that better defines when an employer can be held liable.  

This is exactly what the law needs -- clarity.  Otherwise, employers are held hostage in these cases where the employee's threat of attorneys' fees often compel an employer to capitulate.  In the name of political correctness, cases become means of extortion.  Think of it if Vance prevailed against her employer because a worker smiled at her.  Justice prevailed in this case.  

Security Guards, Night Auditors and Swing or Night Shift Workers

Many industries employ workers to perform duties during the night, when much of the world is sleeping.  Take for example mini-marts, gas stations, some fast food restaurants, hotels and security guard companies.  During the night hours business is usually slow and often the company employs only one worker to cover the facility. 

The overnight nature of the work poses a challenge to California employers.  The state generally requires employers to provide unpaid meal periods to its employees.  The employee must be relieved of all duties and (s)he is entitled to leave the premises.  In the event an employee is not provided a meal period, the employer is liable for a "premium" calculated at one hour of the employee's hourly rate of pay. 

An exemption from the premium is available if due to the nature of the work the employee cannot be relieved of all duty.  Then, if the parties sign a written agreement to this effect, an on-duty meal period is permissible and no premium is imposed. 

The issue with the night worker is always whether the nature of the work prevents the employee from taking a meal period.  Most of the time, the business does not employ a second person.  That is not cost-effective.  With security guards, the job site might be a long distance from another employee making "breaking" the employee for a meal impossible.  Nor is it feasible for most businesses to hire a person to work 30 or 60 minutes while the night worker is taking a meal period. 

However, plaintiffs' lawyers will argue that it is not the nature of the work that makes it impossible for the worker to take a meal period, it is the employer's unwillingness to hire two persons to staff the facility. 

A second, related question is whether an employee working alone at a facility is permitted to take a rest period.  This is not the same issue as the meal period issue.  There are several interesting distinctions.  For example, an employer can compel an employee to stay on the premises during the rest period.  Second, a rest period is 10 minutes in duration.  During a night shift an employee can often go 10 minutes without customers or responsibilities.  Third, there is no concept of an on-duty rest period like there is for meal periods. 

Many lawyers are discussing the case of Faulkinbury v. Boyd & Associates, Inc. (2013) 216 Cal.App.4th 220, but focusing on the issue of class action certification.  The Court held that in this case security guards could move forward with a class action on multiple issues, including whether or not they were unlawfully prevented to take a meal period by the company's policy of requiring all security guards to sign an on-duty meal period waiver. 

The Court said that it was not ruling on the legality of requiring the guards to sign an on-duty meal period.  It's ruling was limited to the issue of the class action. 

Employers should keep this case on their radar.  It could be the first appellate court to rule on the issue of the validity of an on-duty meal period.  If an on-duty meal period is not valid in this case, you can expect to see a rush of litigation in every industry that employs night workers. 

Faulkinbury is a big case, not as much for the issue of class action status, but for the issue whether an on-duty meal period is appropriate in those situations where the night employee works alone and cannot be relieved by a co-worker. 

Stay tuned.