One of the books I read this weekend simply asserts that in contests between the reptilian brain and the cortex, the reptilian brain always wins.

I’m at best a hobby psychologist, and my knowledge of biology doesn’t go much further than a few books and episodes of Nova, but that claim seems almost certainly impossibly false to me for this simple reason: if the higher brain never prevailed, it would provide no evolutionary advantage, and, therefore wouldn’t be found in nature. The cortex wins when it creates advantages by observing long term advantages of things that seem to lose in the short term.

The next time I’m at a conference and they’re telling me I have to persuade (judges, juries, potential clients, whoever) by an appeal to the reptilian brain, I’m going to at least bring this up.

I have to wonder if this isn’t a self-fulfilling prophecy: condition people to respond this way and therefore it makes them easier to control. That’s certainly “above my pay grade” and as an advocate, it’s most important for me to know that’s the way it is, and win with it. But as a citizen—or even just a homo sapiens—it makes me wonder if this is good.

Almost everything I’ve learned from books, CLEs, and other sources for a long long time has begun to equate advocacy with a species of marketing. Using a healthy heaping of social psychology, we’ve been convinced that taking a “People Magazine” approach to advocacy is what we have to do. It’s all about simple themes, tight focus, and tactical use of emotion.

I don’t deny it. The results are tangible. I agree that most people are not receptive to a Socratic debate, even if they want to be, and, similarly that people are responsive to primal imagery, even when they don’t want to be.

But how many turning point events in history came about due to animal brain propaganda—ok, how many positive turning points?

Maybe history has been filtered to make great leaders look more cerebral than they really were, or even just to make their followers look more cerebral.

A different field of psychology, evolutionary psychology, teaches that great leaders have a few attributes: the ability to be seen as a model for imitation and the ability to use force when necessary to punish free riders. (See McNamara & Trumbull) The advantages these leaders present are only apparent if you do cold, rational calculations about the economics or game theory of advantage to the group, not a hormone induced fight or flight reaction.

Maybe these situations are the exception that proves the rule. Maybe it’s only when you’re shooting the moon do you need to have an overriding rational advantage, and a run of the mill court filing or jury trial doesn’t fit the bill.

Usually when you see xxx v. Superior Court, it’s a writ. Not here.

The Plaintiff actually sued the Court for age discrimination. The Plaintiff was a commissioner. He sued after some HR shenanigans. The suit went forward in Sonoma County where he worked (good idea?) and—surprise—the judge dismissed the case. Court of Appeal reverses saying nice try, but the FEHA includes you in the definition of employer. It gets better. The Court of Appeal, having made their pronouncement, denies DeJung’s request to have the case remanded to a different judge because there was no showing that “the interests of justice would be best served by such an order.” (Slip Op. *22.)

Since this is a public sector case, it’s not normally something I’d post. I only recently expanded my coverage to include some NLRB issues, so I’ve been trying to keep the focus on private sector state law. That remains true—but this was too interesting to pass up. I wonder what will happen now. Judge A orders the Court to reinstate DeJung as a Commissioner? Awk-ward. Also interesting to see that the Court used outside counsel, and not county counsel. Don’t know if that’s normal or what.

Jeff Hirsch replies to Richard Epstein’s column suggesting that the EFCA is unconstitutional under a free speech and takings analysis: 

The argument isn’t developed much more than that and doesn’t seem particular strong to me.  I also have a hard time taking it seriously given that Epstein doesn’t even mention the speech restrictions on unions, much less the fact that unions have significantly more restrictions on their speech than do employers (see, e.g., Section 8(b)). * * *

…I’m not seeing a big problem under the Court’s current takings jurisprudence.  This sounds more like an argument for a shift in that policy.  Either way, Epstein’s piece serves as a good reminder that the card-check provision may not be the most important part of EFCA.

I guess we can start writing our Supreme Court amicus briefs on laws that have not been passed yet. Anyway, I agree with Hirsch that the First Amendment analysis is not serious, because it essentially is just a time, place, and manner restriction, and one of commercial, not political speech. As far as Epstein’s takings analysis goes, I’m not sure how the degree of difference between the NLRA as it exists now and the EFCA trigger a new realm of takings. Does it really do anything that a current court of arbitrator can’t do?

I’ve been persuaded by things I’ve read that it might be better for union organizing to simply shorten the time for the secret ballot elections and tweak the procedures. Also, there are other changes that can be made, perhaps not even in the context of union organizing, that can help to aggregate worker power. Anyway, with respect, I think Epstein’s arguments are pretty silly.

WageLaw posted an opinion piece on the Brinker case today. In the spirit of bloggy dialogue, I thought I would respond.

Knapp writes that “[i]n recent years, defense lawyers have enjoyed a pro-business trend in California court decisions.  The Court of Appeal’s decision in Brinker Restaurant Corp., et al. v. Superior Court of San Diego, 2008 DJDAR 11267, which many of us have been watching closely, is no exception”

Knapp is correct. We lawyers have been enjoying a pro-business trend in California court decisions. This is because the more the law changes, the more litigation there is, and, so we lawyers enjoy it. That is not to say that employers themselves have enjoyed it. Sure, a poll of employers would probably find strong support for the Court of Appeal’s holding, but a poll asking whether they would prefer tougher easy to follow consistent rules over more lenient more complex rules would, I am sure, go the other way. We lawyers benefit as long as there is change and rue the day that we won’t be needed as much.

Of course the policy argument behind this controversy is exactly as Knapp states it:

The Court of Appeal’s holding focuses too narrowly (and too inflexibly) on a pointy-headed dictionary definition, ignoring the practical context in which these rights are exercised, or not. In a busy, time-constrained work environment, there are many natural disincentives to take breaks. Managers and supervisors, even while recognizing break rights, often look askance at them and the employees who dutifully take them.

Employees who work through their breaks, or take shorter breaks, may get more praise and credit than those who don’t. The dynamic is intensified in an uncertain economy and for many immigrant groups who can be exceedingly obedient and timid.

There is no denying that the last decades have seen a aggregation of consumer and shareholder power that has caused the real cost of the production of goods to drop by, among other things, forcing worker productivity up. At the same time, the primary medium for aggregating worker power, unions, has declined precipitously. Therefore, at least from a macro view, there is no denying that businesses face powerful incentives to keep workers from taking breaks. Those incentives have their source, ironically, in many of the same people that are the workers who shop at places like Wal-Mart or hold shares in a pension fund.

In the courts, worker power can be aggregated, of course, by class actions. As Knapp points out, the Brinker case effectively works to eliminate the financial incentives of plaintiff’s attorneys to litigate these cases. Of course all of this is a question of policy. The pure legal reading of the statute probably lies in the “pointy-headed dictionary definition,” as Knapp puts it. So, if the standard interpretive tools used on the Labor Code are applied, what should the rule be?

Certainly there are instances where reducing break’s to “make available” from “insured” will make this statutory right de facto non existent, contrary to the “liberal interpretation” rules. But there are other cases where the aggregation of power works in reverse. Can a business with a small number of employees withstand a wage/hour lawsuit with all of its non-exempt employees as a class? Some can’t survive even a single Plaintiff’s case. There are situations also where the abuse of this rule are not likely to exist or where the employees actually prefer them.

It seems to be these different circumstances are what the Wage Orders, when they had a funded panel to write them, were meant to address. I would conclude that there is no right answer on this, because either way it’s going to wrongfully impact somebody. Ideally, the Supreme Court will find a way to craft a rule that allows for the higher scrutiny of “ensure” in cases where there is evidence of a systematic attempt to eliminate the statutory right, but will allow for leniency in cases where that is not the case, and workers simply choose to flex their time.

It’s equally wrong to put all employers in the same category. In some instances, there is a strength mismatch without class aggregation, but in the cases where there is not, I believe it is bad policy to ignore that.

Unfortunately, this doesn’t work out to a simple clear bright line rule which is what I argued for above. But clarity has to give way to a just result. Striking that balance is the trick.

Sac Bee:

With California’s budget crisis worsening, Assembly Republican leader Mike Villines said Tuesday that his members would consider revenue increases only if Democrats capitulate to wide-ranging demands that they bitterly oppose * * * The list includes proposals to increase flexibility in work schedules to reduce overtime payments…

Wow. Here’s the list. Here’s the list of employment law changes:

REGULATORY CHANGES - EMPLOYMENT LAW FLEXIBILITY
Employee Schedule Flexibility
Expanding Health Care Options for Employees (Health savings accounts)
Reducing Unwarranted Litigation
Overtime for high way earners
Meal and Rest clarification
Eliminate “needs test” to allow more apprenticeships

Not exactly stuff that’s news to anyone, but I don’t think any of this is a bona fide budget issue. I also think this is well into potential backfire territory.

I was reading over the ABA’s Blawg 100 yesterday, and I had a thought about blogging, and what it is as a medium (and what it is not). After I finished crying and screaming that I wasn’t on the list (!!), I was struck by a few things. First, this is not to say that I do all of these things, but it’s soooo much easier to be a critic than a performer, so:

Anyone can put up a page, and any webpage can contain content that’s updated. That is not something new with the “blogging” phenomenon.

• Blogging is never a finished product. Blogs are only interesting because they are a rough cut. It’s always ongoing, and a good blog is so current that it is a “rough cut” by necessity.
• It’s you and the blogger having a beer, where much, if not all of the pretense is dropped. Opinions aren’t only allowed, but encouraged. Objective analysis, clean language, and even punctuation are for formal articles. Part of the blog experience is feeling “inside.”
• In that vein, what drives eyeballs to blogs is the value added by the mind of the blogger, not the commodity content of what the blogger is commenting on.
• These last three in connection make the difference between a website that say, just posts a series of case summaries like a 1L’s brief, and a blog that adds a lawyers experience, insight, or reaction to the case.
• Blogging is not, in the end, a vehicle for press releases or marketing. It can be part of a broader marketing system, but readers have little impetus to return to a blog that doesn’t have value-added blog-style rough cut commentary, unless you are the quickest, freest, and most up-to-date site. In other words, unless you’re prepared to be the Wal-Mart of webpages or compete and win against the Wal-Mart of webpages, you have to compete instead as a Whole Foods or find a niche.

This is why blogging is tough for attorneys. We are always cautious with public pronouncements, and certainly wouldn’t want to criticize, say, a judge we have to appear before, and we really can’t talk about quite a few things. If that limits you too much, then chances are what you’ve got is a webpage with case summaries, not a blog. There’s nothing wrong with that, but it’s just not part of what this medium is.

Some of the best blogs, legal or not, often have quite a few one line entries. I’m far too talkative for that, but it’s something worth noting.

From Jottings:

It will be interesting indeed if they can get Specter on board.

The article headline is of course a reference to the 60 votes that it takes to break a filibuster in the Senate.

My current thought, some version of EFCA passes, but not the current one and probably not as soon as first feared.

I agree with his analysis that some version of EFCA passes. Specter faces not only a challenge from the Democrats, but he narrowly escaped a primary defeat in 2004, and his challenger is back. Remember, no Republicans actually have to vote for passage, just for cloture. That makes Specter, Snowe, and Collins—the only “moderate” Republicans left—an extremely powerful bloc.

Fox’s link to Ambinder prompts us to consider the source. Ambinder seems very much to chase phantom controversies. Trying to boil the Senate down to whip counts oversimplifies the dynamics of the place, where each senator can place anonymous holds, and floor amendments are allowed and voted on.

It’s also worth pointing out that a number of Democrats are very unlikely to actually vote for passage of the bill, even if they support “an up or down vote.” But I think for cloture, you have to look to the 2010 elections and the dynamics there.

On the legal side, or at least on the counseling side, it’s worth pointing out that the Province of Ontario has card-check recognition, and they saw no acceleration in unionization since its enactment. And until we see what, if any, bill comes out, I don’t think there’s much to do, except, you know, use shock and awe marketing and have lots of CLE seminars.

I’m struck by the fact that for all the complaints employers have about California law, it’s about California law. Looking at what’s been going on in Illinois (where I went to school), I think we can at least be glad that the law is the biggest worry, instead of lawlessness.

By Jessica Hawthorne
GUEST CONTRIBUTOR

As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.

Much too often – especially if the event is off-site and the alcohol flows freely – the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.

But that’s not the case.  If it’s a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.

Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.

But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party – or anywhere else:

• Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
• Make sure all supervisors have received sexual harassment training.
• Make sure everyone knows how to report unwanted or unwelcome behavior.
• Remind all employees that the company’s sexual harassment policies will be in full force and effect during the event.

Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. It’s important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.

The best way to accomplish this – and follow California law – is to conduct proactive employee training and awareness against all forms of harassment.

All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.

So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.

Jessica Hawthorne is an employment attorney with the California Chamber of Commerce.  More information on sexual harassment prevention training and many other workplace issues can be found at www.CalBizCentral.com.

WageLaw has a good summary here, explaining the two differing theories and how this case makes the analysis much clearer.

Funny titles aside, I was surprised WageLaw wasn’t more critical of this case, especially when I was (”Storm is his usual cautious self” they say.) Dogs and cats living together. Mass hysteria! But I think this says what I’m saying:

It is left to our imagination what kind of evidentiary showing would be necessary to establish that the statutory remedy under the Labor Code would be inadequate. We suspect that this holding would not have compelled a different result under so-called “slavery” cases, such as Bureerong v. Uvawas (1996) 922 F.Supp. 1450, where the District Court permitted punitive damages to be asserted in a wage claim brought by garment workers who were denied minimum wage and overtime.

In other words, even though they’re wages, they’re not wages. Or at least not was wagey as minimum wages. So, either we now have classes of wages, or a Court of Appeal has implicitly reversed the Supreme Court.

Again, I want to emphasize that it’s not my perosnal opinon that the statutory penalties and remedies provided in this case aren’t “adequate” or that I really think that meal period premiums aren’t penalties. 

For those of you strongly opposed to the holding in Murphy I would ask whether you think Courts of Appeal chipping away at decision is more effective than merely expedient. 

Petition for Review watch begins…

This is the Google Trends index on the Employee Free Choice Act. The peak coincides with Election Day. I imagine that there will be another slight increase after the President-elect spokesman reconfirmed the incoming administration’s support for the bill.

This article today from Fisher & Philips warns retailers thusly: 

Gallons of ink have been spilled by lawyers and journalists concerning the Employee Free Choice Act (EFCA). But this law is likely to have a particular effect on retailers, and retailers – more so than other employers – should start planning for the worst now.

* * *

Small and mid-box stores may operate at times without exempt managers being on-site. This complicates the employer’s ability to detect union organizing in its early stages, when it is most likely to be able to respond appropriately to a union drive.

Thought provoking.

It’s funny. Most of what you read about the EFCA isn’t really advice, at least client-interest driven advice. It’s mostly Chamber of Commerce politics. There’s nothing wrong with that. But the distinction between efforts to stop this bill’s enactment and how to handle it if it passes are two distinct things (and law firm marketing is yet a third).

First, the NLRB’s current jurisdictional limit for retailers is $500,000.00. Depending on what you sell and what size your business is, that number looks very different. So, this isn’t going to close down the truly “small” businesses. 

Second, this detection problem is only slightly less of a problem under existing law.

I consider myself to be a decently astute observer of politics. I can count 59 cloture votes in the Senate, and I’m pretty sure they can find 4 votes to add to the existing sponsors to get it passed. If Al Franken wins, that’s 60. If not, they only need to find one more vote. This bill has already passed the House. As I mentioned above, Obama supports it.

Given everything else that is going on, it’s my guess that one way or another, that last vote will be found. One way of doing that, and also limiting concern for small business, is:

• Raise the jurisdictional limits

or:

• Set a threshhold based on the “commerce” threshholds in dollars used by the NLRA, or by number of employees used by other employment laws for where “card checks” come into effect, and make it at a much higher level than the jurisdicitonal limits

Preparing for unionization won’t change much, I don’t think; it’ll just change who needs to do it. But what has changed is the political environment of the United States. The time to prepare for that has already passed, so it might behoove folks to look at potential amendments to EFCA rather than going all in with a pair of 3s.

UPDATE: Implicit, but only vaguley, I guess is that the activity on EFCA corresponds to political activity, and, as such, you can take that for what it’s worth, but I think it’s fair to same a large amount of the material on it is political, not legal, despite the source.