Some of the most interesting quotes from the California Supreme Court in the Brinker decision:

• We conclude, contrary to the Court of Appeal, that trial courts are not obligated as a matter of law to resolve threshold disputes over the elements of a plaintiff's claims, unless a particular determination is necessarily dispositive of the certification question. 
• On the most contentious of these, the nature of an employer's duty to provide meal periods, we conclude an employer's obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done.
• While we agree trial courts must resolve any legal or factual issues that are necessary to a determination whether class certification is proper, the Court of Appeal went too far by intimating that a trial court must as a threshold matter always resolve any party disputes over the elements of a claim.  In many instances, whether class certification is appropriate or inappropriate may be determined irrespective of which party is correct.
• To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them.  Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary.
• Employees are entitled to 10 minutes' rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.
• We conclude that under Wage Order No. 5 and Labor Code section 512, subdivision (a), an employer must relieve the employee of all duty for the designated period, but need not ensure that the employee does no work.
• As these opinion letters make clear, and as the DLSE argues in its amicus curiae brief, the wage order's meal period requirement is satisfied if the employee (1) has at least 30 minutes uninterrupted, (2) is free to leave the premises, and (3) is relieved of all duty for the entire period.
• Section 512's mandate that employers "provid[e]" 30-minute meal breaks can be read as shorthand for the requirement contemplated in subdivision 11 of most of the IWC's wage orders:  Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please.
• Thus, under what is now section 512, subdivision (a), as under Wage Order No. 5, an employer's obligation when providing a meal period is to relieve its employee of all duty for an uninterrupted 30-minute period.
• When someone is suffered or permitted to work-i.e., employed-for five hours, an employer is put to a choice:  it must (1) afford an off duty meal period; (2) consent to a mutually agreed-upon waiver if one hour or less will end the shift; or (3) obtain written agreement to an on duty meal period if circumstances permit.  Failure to do one of these will render the employer liable for premium pay.
• Proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay; employees cannot manipulate the flexibility granted them by employers to use their breaks as they see fit to generate such liability.  On the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks. 
• The wage orders and governing statute do not countenance an employer's exerting coercion against the taking of, creating incentives to forego, or otherwise encouraging the skipping of legally protected breaks.
• To summarize:  An employer's duty with respect to meal breaks under both section 512, subdivision (a) and Wage Order No. 5 is an obligation to provide a meal period to its employees.  The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.  What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.
• On the other hand, the employer is not obligated to police meal breaks and ensure no work thereafter is performed.
• Accordingly, we conclude that Wage Order No. 5 imposes no meal timing requirements beyond those in section 512.  Under the wage order, as under the statute, an employer's obligation is to provide a first meal period after no more than five hours of work and a second meal period after no more than 10 hours of work.

From the Concurrence

• We have long settled that individual damages questions will rarely if ever stand as a bar to certification.  (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334; Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266.)  " `In almost every class action, factual determinations [of damages] . . . to individual class members must be made.  [Citations.]  Still we know of no case where this has prevented a court from aiding the class to obtain its just restitution.  Indeed, to decertify a class on the issue of damages or restitution may well be effectively to sound the death-knell of the class action device.' "  (B.W.I. Custom Kitchen v. Owens-Illinois, Inc. (1987) 191 Cal.App.3d 1341, 1354.)

The California Supreme Court holds: "We conclude an employer’s obligation is to relieve its employee of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done." (Pg. 2)

Brinker opinion attached.

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Brinker_Opinion.pdf (2.71 MB)

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Click here to download:

Brinker_Opinion.pdf (2.71 MB)

- "Don't you know she's loco...?"

- "He could't handle the stress." 

- "She took leave twice.. she didn't really want to work..."

As an employment attorney, I talk to lots of witnesses. Whether it be the clerk at your favorite clothing store in the mall, a teller at your bank, or the general manager of the movie theater you go to with your family...

Many of these people talk to me candidly about how they view my clients and their coworkers, and while I'm unable to explain why... my informal and unscientific research reveals a common thread of disregard for coworkers working with mental disabilities.

At a time when employers are doing a (slightly) better job of accommodating physically injured or disabled workers, it seems that employers (and their coworkers) don't approach accommodating employees' mental disabilities with the same care or spirit.

This is somewhat odd, in light of the fact that the protections afforded those working with mental disabilities in California are nearly identical to those with physical disabilities. In this regard, California government code section 12940 provides: "It shall be an unlawful employment practice, unless based upon a bona fide occupational qualification ... (a) For an employer, because of ... mental disability... to refuse to hire or employ the person or to .... discriminate against the person in compensation or in terms, conditions, or privileges of employment."

Perhaps it is because physical disabilities are more obvious, and the physical struggle is easier to perceive. Or maybe people can relate and/or empathize better with those with a back injury, broken limb, or blindness.

Whatever it is, employees living and working with mental disabilities (including but not limited to major depression, panic disorder, obsessive compulsive disorder) must know they are protected by California law too. Specifically, California law is clear that employers have a duty to engage in a good faith interactive process with an employee with a mental disability in an effort to find a reasonable accommodation that works.

We'd all want our child, parent, or sibling to be reasonably accommodated by an employer if struggling with a mental disability.

So know your rights and pass the word along...

You can't be terminated if you don't work for the organization. Ask Clipper Darrell, or just Darrell. Check out this more than amusing story of an overly enthusiastic clippers fan running up against  the Clippers trying to make sure he doesn't hold himself out as a member of their organization (now that they have Chris Paul and Blake Griffin).

My favorite Clipper Darrell quote:

"They asked me not to be Clipper Darrell anymore. They don't want me to dance. They don't want me to cheer anymore at the games. I can't be Clipper Darrell. They don't want me in the suit. They don't want me to do anything anymore."

My favorite Clippers quote:   

"The Clippers have done absolutely nothing wrong or inappropriate as it concerns Darrell Bailey. His claims are absurd and unfounded. He has never been an employee or representative of the Clippers organization, and therefore cannot be terminated. The Clippers have never engaged Mr. Bailey’s services. When he has been in need, the organization has regularly provided him a seat for games. No good deed goes unpunished.

We have had multiple conversations with him concerning his inappropriate use of the Clippers’ team name and trademark for his own unmonitored commercial gain. We have spoken to him repeatedly about his desire to make public appearances in ways which improperly suggest that he is officially affiliated with our organization. In all cases and over a long period of time, he has consistently rejected our efforts to operate in consultation."

More here: http://espn.go.com/los-angeles/nba/story/_/id/7631532/darrell-bailey-says-los-angeles-clippers-asked-refrain-using-clipper-darrell-name

Looking out my office window, trying to think of a topic to write about in the holiday season, I couldn’t help but see the building that many know as Nakatomi Plaza aka Fox Plaza in Century City, Calif – and think about the many holiday parties that will be occurring throughout California in the next week. 

With the right (or wrong) components, holiday parties can be a petri dish for employment issues.  Nakatomi was the fictional setting of one of the worst Christmas parties ever in the original Die Hard movie, circa 1988.  While it was a different time – and California law has changed a bit since then – I couldn’t help but notice that the Nakatomi Christmas party was marked with excessive drinking, drugs, inappropriate sexual activity, harassment and of course, violence.    

I recently rewatched the film, including a clip of Vice President of Sales Harry Ellis, with an eye toward issue spotting potential employment issues and potential violations of California law. I came up with a few:

(1) Sexual harassment

• Harry Ellis clearly shows his sexual interest in John McClane’s wife, Holly Gennaro, by asking her to dinner while she is working a late night. She retorts, “Harry, it's Christmas Eve.  Families... Stockings...chestnuts...Rudolph and Frosty...those things ring a bell?” Ellis responds, “I was thinking more of roaring fireplaces...mulled wine and a nice brie...”
• The clip of Ellis suggests these comments likely occur regularly.  Depending upon what else he has said, they amount to "severe and pervasive" sexual harassment
  

(2) Overtime Violation?

• Holly and Ginny, her secretary, are working late. Holly comments, “Ginny, it's 6:40, you're making me feel like Ebeneeze Scrooge. Go on joint the party, have some champagne."
• It isn’t entirely clear whether Ginny is a non exempt employee entitled to overtime. If she is non-exempt, and she started her shift at approximately 9:00 a.m., Holly likely knows she has worked more than 8 hours a day (or perhaps more than 40 hours for the week). Even if Holly didn’t ask her to stay, or thinks Ginny is doing her a favor, it looks like Holly “suffered or permitted” Ginny to work more than 8 hours that day, and Ginny is likely entitled to overtime.
• Ginny also doesn’t appear to “punch out” for the day or otherwise document her time worked when she stops work and heads down to the party. If the employer is not regularly recording and paying her overtime, Ginny may also be entitled to pursue penalties pursuant to Labor Code section 226 if her time sheets do not accurately reflect her time.

(3) National Origin Harassment/Hostile Work Environment

Harry Ellis makes various comments that could constitute national origin harassment in violation of the FEHA:

• “Hey baby, I negotiate million dollar deals for breakfast, I think i can handle this eurotrash.”
• Harry tries to get someone’s attention by commenting, “Hey, sprechen ze talk?”
• “Whether you’re pissed off at the camel jockeys, maybe its the Heebs, northern Ireland, its none of my business….”

Harry, as a VP/Manager at Nakatomi, is pretty loose with offensive language, and may be opening up Nakatomi to liability for harassment claims. 

(4) Labor Code 1102.5 Prohibits Retaliation for Whistleblowing

During the Nakatomi holiday party, John McClane (aka Bruce Willis), walks in on Harry doing cocaine.  Nakatomi executive Mr. Takagi looks the other way.  Hypothetically, if John’s wife Holly reported the unlawful activity to the police, and as a result Mr. Takagi fired her– she would have a potential claim under Labor Code section 1102.5 (b) which provides “An employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”

I’m stopping at four employment issues… though I'm sure there are more...

Referencing this flick may date me, so feel to drop a line or comment about any current movies or shows rife with holiday party employment issues... and Happy Holidays!

Q. When does workplace bullying become "hostile work environment" sexual harassment? 

A. When the bullying is "because of sex" - regardless if the bullying is perpetrated due to sexual interest, misogyny, personal vendetta, misguided humor or boredom.  

For an interesting decision regarding how workplace bullying can also be sexual harassment, give googlescholar.com a try and read Rene v. MGM Grand Hotel, Inc., 305 F. 3d 1061 - Court of Appeals, 9th Circuit 2002 (finding that male employer who was subject to severe, pervasive and unwelcome physical conduct was harassed because of his sex because he was subjected to attacks “which targeted body parts clearly linked to his sexuality”).  Link to the case at ww.googlescholar.com here  http://tinyurl.com/c68r7vl

In Rene, the Court observed:

The premise of a sexual touching hostile work environment claim is that the conditions of the work environment have been made hostile "because of ... sex." See Ellison, 924 F.2d at 876. The physical attacks to which Rene was subjected, which targeted body parts clearly linked to his sexuality, were "because of ... sex." Whatever else those attacks may, or may not, have been "because of" has no legal consequence. "[S]o long as the environment itself is hostile to the plaintiff because of [his] sex, why the harassment was perpetrated (sexual interest? misogyny? personal vendetta? misguided humor? boredom?) is beside the point." Doe, 119 F.3d at 578.

To sum it up - workplace bullying that occurs "because of sex" may give rise to a sexual harassment claim, even in situations where the harasser isn’t sexually interested in the victim.

The Prop 8 oral argument is set for today in the 9th circuit. For a good summary of the case & a quick cheat sheet on what has happened in the case to date, check out Matt Baume's report at http://tinyurl.com/7rkcs5d .

Also, the 9th Circuit has a great site at http://tinyurl.com/4bnc859 where you can read the amicus briefs that have been filed. If pressed for time, I recommend checking out the brief filed 5/2/2011 by a coalition of religious groups including California Faith for Equality and the Progressive Jewish Alliance.

Finally, here is a link to the compelling Aussie commercial supporting  marriage equality, with the simple message – “It’s time. End Marriage discrimination.” http://tinyurl.com/7v5c4ne

Click here to download:

Largent_v._Reed.pdf (871 KB)

(download)

Click here to download:

Largent_v._Reed.pdf (871 KB)

Pennsylvania Judge Says Plaintiff Must Hand Over Her Facebook Username & Password

With 800 million people using Facebook, and the requests for social media profiles in litigation on the rise - the law governing the current and future use of social media in litigation is developing rapidly all around us.

The recent case of Largent v. Reed, No. 2009-1823, slip op (Pa. C.P. Franklin Co. Nov. 8, 2011), takes a step in developing that law.  The case arises from an auto accident between the passengers of a motorcycle and a minivan – and deals with the discoverability of a plaintiff's Facebook username and password, as the Defendant contended that the plaintiff's Facebook posts undermined her claims of severe injury. The Largent case provides a pretty thorough review of Facebook's privacy settings, the ways in which people interact online through social media, and an analysis as to how Pennsylvania law attempts to balance the privacy interest involved in litigation and discovery.

What is Discovery?

Discovery is the exchange of information that occurs in a lawsuit, as the parties share information about their cases and request information from each other. In Largent, defense counsel discovered that the plaintiff utilized Facebook regularly and accessed the site the night before her deposition.  The defendant requested the Plaintiff’s Facebook username and password.

What is Facebook?

I recognize that if you’re on twitter, have navigated your way to this blog, or even watch movies– you know what Facebook is.  But in a discovery dispute, it is most important to consider how the Court views Facebook, its users, and the expectation of privacy involved therein.

In this case, the court’s "Facebook" section (Section II, Pg. 3) provides a relatively easy to understand explanation of Facebook 101, as well as a primer regarding the site's (ever-changing) privacy settings. The opinion describes the then current facebook settings as follows: 

 "Users can set their privacy settings to various levels, although a person's name, profile picture, and user ID are always publically available. At the least restrictive setting, named "public," all 800 million users can view whatever is on a certain user's profile… At an intermediate level, only a user's Facebook friends can view such information, and at the least restrictive, only the user can view his or her profile. Facebook also currently allows users to customize their privacy settings."

The author of this opinion is likely an avid social media user –as the discussion mentions Google+ and even explains Facebook "tagging" with some detail. (Pg. 4). 

The Conclusions 

Here is a quick breakdown of the court’s observations and findings:

1. “There is no reasonable expectation of privacy on Facebook. Almost all information on Facebook is shared with third parties, and there is no reasonable privacy expectation in such information. Cf. Commonwealth v. Proetto, 771 A.2d 823, 828 (Pa. Super 2001)....  When a user communicates on Facebook, her posts may be shared with strangers. McMillan, 2010 WL 4403285 (Pg. 9).

2. "no general privacy privilege protects [the plaintiff's] Facebook material from discovery...By definition, there can be little privacy on a social networking website.” (Pg. 9-10).

3. “Facebook’s foremost purpose is to 'help you connect and share with the people in your life.' That can only be accomplished by sharing information with others. Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.” (Pg. 10).

4. Facebook posts are not truly private and there is little harm in disclosing that information in discovery (Pg. 13).

5. “Nor does the Court believe that allowing [the defendant] access to [the plaintiff’s] Facebook profile will cause unreasonable annoyance.” (Pg. 13).

Thoughts

Besides get a little overly dramatic with the "lockbox of secrets stuff" - and not being able to say "lockbox" without thinking of the Al Gore impersonation on SNL – some might conclude that the Court's statements that users have no real privacy interest in Facebook go a bit too far.

First – the Facebook settings of the plaintiff were purportedly "public" during the relevant time, meaning "that anyone with an account could read or view her profile, posts, and photographs." In many other cases, people's privacy settings will no doubt be more restrictive. In this regard, the Court puts on the brakes a bit in a footnote, stating “The Court does not hold that discovery of a party’s social networking information is available as a matter of course. Rather, there must be a good faith basis that discovery will lead to relevant information. Here that has occurred because [the plaintiff’s] profile was formerly public.”(Pg. 13, fn. 13).

Second - This Court orders the plaintiff to produce her username and password, noting that it won’t cause “unreasonable annoyance.”  (Pg. 13). Some might think the court undervalues the annoyance that this Order will cause (or the stress and embarrassment it will cause simply knowing a lawyer will have access to your posts of your Halloween costumes for the last 5 years).

Third - The Largent court points out that "users of Facebook know that their information may be shared by default, and a user must take affirmative steps to prevent the sharing of such information...." (Pg. 5).  While it may be a pain for the parties and the court - the privacy analysis regarding the discoverability of social media posts and information must take into account the steps that people take to keep their information & data private.

Regardless, you can expect that quotes like “There is no reasonable expectation of privacy on Facebook” will no doubt appear in lawyers’ briefs as they try to obtain access to your social media profiles, messages and posts.

Conclusion

Here in California, the standard for discoverability appears to be similar to that in PA. While the Largent case is not binding in CA and may be limited to its facts, litigants and employees in California are cautioned that social media sites may be discoverable.

“My boss was such a jerk to me and I don’t know why he treated me so poorly.  He terminated me out of the blue based on ‘performance’ though I didn’t have any write ups. ”

We all hear stories from friends or family about how someone has been laid off or terminated and that the individual believes the termination was unfair. But each unfair termination in California does not necessarily = “wrongful termination.”

To have a “wrongful termination” case in California, the termination has to be more than just unfair.  It has to contravene established public policy. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170. The fundamental policy (upon which a wrongful termination case may be based) must be established by a constitutional, statutory or regulatory provision. Green v. Ralee Eng. Co. (1998) 19 Cal. 4th 66, 79.

In simplest terms, this means that the termination must violate a law or protected right. For example, California has laws that protect employees from discrimination and harassment based various categories including race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, or sexual orientation. California Government Code § 12940.  A discriminatory termination motivated by any one one of these factors constitutes “wrongful termination.” 

For example, if there is evidence that the individual up above was terminated because of his disability, or because he took a protected leave for his disability, it might be a wrongful termination after all.

Other California laws exist protecting people who refuse to participate in unlawful conduct, or people who disclose information to a government or law enforcement agency (with reasonable cause to believe that the information discloses a violation of a state or federal statute). See California Labor Code §1102.5 et seq.

In other words, if the person above was terminated because he made a complaint to a governmental agency or refused to participate in an activity that would result in a violation of state or federal statute – notwithstanding his employer’s comments that the termination was “performance” based - that employee was “wrongfully terminated” in California.

A great post-Veteran's day related call to action by Charlotte Fishman regarding the Supreme Court denying review of a 5th Circuit decision holding that a federal law prohibiting employment discrimination against military service members does not protect them from harassment on the job. The underlying matter addressed a class action alleging various voilations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which was designed to protect the civilian employment of non-full time military service members in the United States called to active duty. Link below.

http://www.todaysworkplace.org/2011/11/10/a-modest-proposal-for-veterans-day/