…you can’t do that.
And maybe I’m getting a little out of date, but I don’t believe being “exempt” means you can get paid nothing.
Damned if you do, Ricci‘d if you don’t—or if you try and correct the past mistake, that is.
I’m sure none of the demagoguery about Ricci thought that this consequence could have been predicted. It was obvious.
Most likely, the idea is to continue to problematize Title VII until it seems entirely unworkable. Other than that, I don’t see the strategy behind the demagoguing the these two cases. I don’t think many of the fever pitched voices about Ricci ever really cared about employers or employment.
Many of the jobs lost during the recession are not coming back.
Period.
For the last two years, the weak economy has provided an opportunity for employers to do what they would have done anyway: dismiss millions of people — like file clerks, ticket agents and autoworkers — who were displaced by technological advances and international trade.
On the one hand, having a flexible, technology-based practice that has no need for administrative employees is the best thing I ever did. I doubt that the cost of a worthwhile assistant, all the necessary equipment and space would actually net me any money. On the other hand: what on earth do we do with these people? These aren’t welfare queens. These are people that have worked most of their lives, mostly in jobs that were not foreseeably going to be eliminated any time soon. This seems to happen with great frequency in our globalized economy.
My guess is that we need—more than expanded unemployment or other safety net measures—a massive expansion of community colleges with programs focusing on career switches for adults instead of mostly two-year degrees for teenagers. Yet community colleges are being slaughtered in California lately.
Is now under investigation by the police. The legally handicapped tech press is having trouble doing a good legal analysis, but they are belatedly coming around to see that the thorniest issue here might be a trade secrets act lawsuit. I haven’t seen anyone pick up on the criminal side of the trade secrets law yet, mostly they are just arguing over the receipt of stole property issue.
The cops are into this, but it raises some interesting issues. Take a look.
Your business may still qualify for tax credits under the health care reform bill even if you have more than 25 employees and even if their average salaries are more than $50,000.
Why?
Well, one thing that should be pointed out about the language for qualifying for the small business tax credit in the health care reform bill:
A full-time “equivalent” employee is one who works 2,080 hours per year, but in doing the calculation, you do not have to count more hours than that per employee. (§ 1421 (a)(2)(B) of the bill which will be 26 U.S.C. § 45R tomorrow at 11:15 EDT). This makes it easier to qualify for the $50,000 per year per employee threshold. And part time employees, naturally, won’t “fill up” one spot, so 50 people working less than half time may still leave you qualifying.
You can find out the numerous other details elsewhere, but I have not seen this reported widely.
In the absence of any case law developments, I’d like to make the following conjecture about the health care reform bill that appears to be headed for passage this weekend: once it starts to have a non-trivial effect (2013? 2014?), it will result in a net increase in employee mobility.
In your long-range planning, consider that.
UPDATE 3/28/2010: I should Google before I conjecture. Apparently, this phenomenon has been very closely studied. Strangely, it just wasn’t part of the non-debate about reform. According to the article I linked to, 1.6m people are locked into jobs they don’t want because of reliance on health benefits.
Strategy derives from the Greek word στρατηγός “strategos” which more or less translates to general, as in commander of an army (though the Greek equivalent had vast civil powers). It is on a bigger picture level than operations or tactics, but not as all-encompassing as “grand strategy.”
For the most part, it is not taught in law school, at least not as a subject in and of itself. Yet it is part of the basic curriculum for all modern military officers.
Money tends to dominate civil litigation strategy. The party with the most money often takes on an attrition strategy—the kind where you see motions challenging everything from the service of the summons to pages of boilerplate objections in form interrogatory responses. Ultimately, as in warfare, attrition can be defeated by maneuver, especially if at the end of the day you have dominant facts on your side. So, giving battle early on favors the moneyed party, giving battle later favors the factually superior party (not at all necessarily different).
As most of us implicitly know, this situation is altered a lot by attorneys’ fees cases, where the risk of joining battle can be almost entirely borne by one side and even a blitzkrieg of attrition litigation at the beginning can backfire.
There are books out there such as Lawyer’s Poker—a bit more fashionable, but the analogy doesn’t really hold. Poker is almost entirely tactical, even if you can learn a lot about psychological tactics. I’ve also seen Sun Tzu on more than one attorney’s bookshelf. There are some important maxims in there, but it is more difficult to apply by analogy to litigation than manuals on set piece battles involving field armies and Sun Tzu is not an analytical work.
Here’s a list of books on strategy:
- The Strategikon by Emperor Maurikios of Byzantium
- The Prince by Niccolo Machiavelli
- On War by Carl Von Klausewitz
- The Art of War (Not Sun Tzu) by Jomini
- Strategy: The Logic of War and Peace by Edward Luttwak
- The U.S. Army Leadership Field Manual
- for the example nonpareil of relational maneuver, read about the Emperor Herakleios who took his field army deep into enemy territory leaving the entire empire unguarded, Constantinople besieged by Avars on one side and the Persians on the other. Ultimately his fast field army utterly destroyed the Sassanid Persian Empire at the Battle of Nineveh, which had just conquered the Levant, Palestine, and Egypt. (As an aside, the destruction of Sassanid Persia and the ruin of war in Byzantium allowed one of the major turning points in history, one very relevant to this day: the Arab conquests.) Relational maneuver is something to think about for those underdogs out there.
There is a book I have not read called Litigation is War that purports to apply Clausewitz to litigation—but what if that’s not you? Sample a variety of primary sources.
Also, as far as games go, chess is infinitely superior to poker because it combines strategy, operations, tactics, and, despite what people think it is hugely psychological (even through a computer).
The kernel of wisdom in all of these pieces is that you must know yourself. Not your boss or your client or your firm—you have to know what your own strengths and weaknesses are first. As someone once put it, you go to war with the army you’ve got (not the one you wish you had).
From the AP:
Under federal law, prospective employers must get written permission from applicants to run a credit check on them. But consumer advocates say most job applicants do not feel they are in a position to say no.
Most of the bills being proposed this year resemble laws in Hawaii and Washington that prevent employers from using credit reports when hiring for most positions. The laws contain exceptions in cases where such information could be relevant to the job — for example, if the person is applying to work in a bank or an accounts-payable office.
I understand employer’s interest in doing this, but at the end of the day it may lead to incentivize bankruptcy, which has anti-discrimination provisions built in. As the article points out, California had a similar bill that was recently vetoed. In an up economy, there’s probably a stronger correlation between credit and HR concerns. In this economy?
A Complaint against lily white Abercrombie & Fitch for not hiring someone because of their hijab is either a public relations coup (in a certain way), a legal nightmare, or both. According to ABC News:
This week the Equal Employment Opportunity Commission filed suit in Oklahoma federal court on behalf of Samantha Elauf, 17, whose hijab became an issue during a June 2008 interview for a position at Abercrombie Kids at the Woodland Hills Mall in Tulsa, Okla. In its lawsuit, the EEOC is citing violation of Title II of the Civil Rights Act. The complaint alleges the interviewer said that any “headgear” was prohibited by the “Look Policy,” and the company refused to make an exception for Elauf to wear her hijab for religious reasons.
A&F goes on to what you might call a “general denial” in the article. To people in HR and related fields this seems like such an obvious minefield—but one wonders: in the service economy especially, just how knowledgeable are the people in situations like this? In California in firms of a certain size, sexual harassment training is required of managerial employees. Much of that would be necessary if employees read and understood their employee handbook.
Does your employee handbook read like stereo instructions written in legalese?
I can get your manual compliant in plain English for a flat fee.
The Court of Appeal holds that a reduction in an attorneys’ fees award for a tack-on UCL claim is not required in a wage and hour case.
Jon-Erik G. Storm, Esq.
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660 Mar Vista Dr.
Los Osos, CA 93402
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Fax (805) 980-4231
jonerik@jonerikstorm.com
I’m delighted to announce the launch of my solo practice.
Not just a new practice. A new kind of practice: I worry about my client’s business—not about running my own. My lean and efficient technology-based practice allows me to offer personal attention and revolutionary pricing.
The California Supreme Court holds that Labor Code Sec. 233 does not apply to paid sick leave policies that provide for an uncapped number of compensated days off.
MoFo says [pdf]:
The 2009 legislative sessions in both Sacramento and Washington, D.C. have yielded significant developments for labor and employment law.
Both? I would say, on the contrary, the 2009 legislative session in Sacramento was probably the least eventful of the decade in developments “for” labor and employment law.
I apologize for the almost total lack of posting. I was in a trial that involved testimony over 4 weeks starting October 6, and just finished up the concluding briefs today. If you can believe it, in the middle of all of that I had stomach surgery which cured a debilitating case of heartburn and as an added bonus has caused me to lose 15 pounds already.
So, I thought I’d point to this post from Robin Weideman on Dowell v. Pacesetter, Inc., a case which is more or less unremarkable, except that it is part of a continuing trend from the Court of Appeals: quit trying to make exceptions to B&P 16600.
We saw this earlier this year in TRG v. Galante and FLIR Systems v. Parrish. I noticed that I was hoping in my FLIR post to see the TRG ruling in July, but it came down in August.
Here’s CalBizLit’s comment on Justice Gilbert’s reworked opinion on arbitration finality.
I find this interesting because what I have termed in the past “arbitroskepticism” seems to be a contrarian point of view, but it is increasingly gaining traction among lawyers who blog. The simple logic was always this: if the forum really was so advantageous for employers (or any one side, whoever) how long could it really be before the courts and/or legislature took notice. Added to that was, where’s the data?
And of course, the Courts took notice long ago.
I know it was a big political thing, but as I said it was damned-if-you-do damned-if-you-don’t:
Firefighter Disparate Impact Suit Filed against New Haven
So, the upshot of the politicized Ricci decision is that there can be more racial demagoguing completely out of the context of Title VII, and that’s fun for cable news. But this puts employers in the position of not being able to remedy a mistake in EEO compliance without being liable to someone, one way or another. Good thing the U.S. Chamber of Commerce is spending its membership’s dollars arguing that the earth is flat instead of lobbying on this nuts and bolts kind of thing that will affect everyone subject to Title VII.
You have to read this opinion. Basically, the Court of Appeal destroys the parties (and the trial court) for their voluminous summary judgment motions, which added up to about 4,000 pages, and for the blanket acceptance of the objections by the trial court.
The thing is, are you willing to be the first lawyer that goes really lean on your briefs? Are you a partner?
Until there is a massive state-wide trial-court-level implementation of the demands in this decision, we don’t dare risk it. Do we?
The last two bills we were tracking were vetoed today.
Employers:
Please remember that Rosh HaShanah begins on Friday night and that Yom Kippur is Monday, September 28. Please also remember that you don’t get to set the level of observance for your employees, so just because you see them eating a bacon cheeseburger while carrying fists of cash around on Saturday doesn’t mean that they can’t observe these days. (You want Christmas off, right? When was the last time you were in church?)
As I said, levels of observance vary. Just in case, I should also mention that Friday October 9 is a day that traditional Jews would not do any work for sukkot, or the Feast of Tabernacles.
L’shanah tovah.
AB 335 is awaiting action by the governor.
AB 527 is awaiting action by the governor.
The rest are dead for this year, and the Governor is saying he’s going to veto everything anyway. My guess is that we won’t need to write any “new law” updates come 2010 other than the ongoing look at the courts.
Shocker, I know.
No movement in the last little while on any bills that I’m tracking for changes to California employment law. Most of them are alive in name only.
Comments are a source of spam, processor overhead, and don’t produce the intended civil discussion. I am happy to correspond and debate with readers at any time. Send me a Tweet or an e-mail. I will post your comment (if you wish) and my response.
Go read Greg on TRG v. Galante.
My only comment is that the courts could eliminate a lot of so-called “trade secrets” litigation and other back-door attempts to create and enforce covenants not to compete in California by continuing with the trend of cases we’ve seen this summer, including TRG and Flir.
The Legislature is free to reconsider Bus. & Prof. Code 16600 at any time. It can also add more teeth to the UTSA if it wishes. But as written, those statutes allow for employee mobility, but with remedies for intellectual property theft. They do not provide for entrepreneur-killing bad faith lawsuits. I’m glad to see the Court of Appeal is going to make people think twice about that.
Dan Walters complains that they haven’t done anything except the budget this session. The LA Times reports that prisons and water are the main issues left on the agenda. Not much in the way of labor and employment issues this year.
I thought I’d point out this quote from Justice Louis Brandeis:
Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). Some people might find this disturbing. Brandeis was talking about the federal Constitution and he was actually arguing against relying on stare decisis in that instance. There are a lot of objections you can make to this statement. In many circumstances, it’s better to get it right than have it settled. But in the domain of the California law as it relates to employers and employees in their relationship as such, the helter-skelter pace at which significant changes in the law occur both from the courts and the legislature puts us squarely in a position where we need things to be settled more than we need them to be settled “right”—whichever your view is.
The costs of compliance are one thing. The cost of re-complying, or attempting to comply with unclear rules, are another.
At long last, we have an opinion from the California Supreme Court.
My analysis will be forthcoming shortly.
UPDATE:
The Court correctly identifies the distinguishing factor that made Saunders such a useless precedent: the “invader” in that case was not a co-worker. (Slip Op. 19-20.) The Court then lays out a spectrum between highly “public” areas of the workplace, and highly private areas, such as locker rooms (the latter are subject to an express statutory protection). But do employees have some reasonable expectation of privacy in a closed office? Yes.
Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related. As suggested by the evidence here, employees who share an office, and who have four walls that shield them from outside view (albeit, with a broken “doggie” flap on the door), may perform grooming or hygiene activities, or conduct personal conversations, during the workday. Privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access.
(Slip Op. 21-22.) So, you would be mistaken—as I was—to go with the Court of Appeal in Saunders and suggest as a blanket rule that employees have no expectation of privacy in the workplace from their employers only, except for those areas specifically designated by statute. The Court apparently finds this kind of privacy in a “penumbra” analysis (i.e., the opposite of limiting the circumstances to an enumerated list) of legislative acts, such as those prohibiting changing room and other “peeping tom” behavior. The Court hints in dicta that a properly drawn policy might have abolished the expectation of privacy. Of course the problem here is that notice of surveillance basically destroys its utility.
The Court then engages in a lengthy factual analysis and concludes that because Hillsides was very careful about what they spied on and how, that even though this wasn’t necessarily the least intrusive means, because it served a legitimate purpose it was ok.
Privacy rights in California have always been all about balancing tests, which means that it’s very hard to know what to do in any given situation. Here, it looks like the message is that you can monitor an office to catch someone breaking the rules if you don’t create too much of a dragnet. How egregious the violation must be and how careful you have to be aren’t 100% clear to me.
It’s also not clear to me what would have happened if the Plaintiffs had been caught on tape in the following different circumstances: (1) doing nothing important; (2) doing something like changing; or, (3) being caught as the guilty party. Nor is it clear to me what effect scenario #3 would have on the liability for scenarios #1 or #2.
My sense is the Court did not like this case because it saw the Plaintiffs making a mountain out of a molehill. So, instead of taking the opportunity to expound some law in detail, they engaged in a fact-intensive analysis in order to dispose of this case. Oh well.
