What, exactly, are "clothes" anyway? Department of Labor defines...

Fair Labor Standards Act, 29 U.S.C. § 203(o) states that the changing of clothes or washing at the beginning or end of the workday is not compensable time. So the question is, what are clothes? How about the donning of protective gloves, face masks, or smocks? Which of these activities constitutes compensable time? In a five-page opinion, the U.S. Department of Labor clarified these issues:

... the Administrator is issuing this interpretation of the term “clothes” in § 203(o), and of whether clothes changing covered by § 203(o) is a principal activity, to provide needed guidance on these important and frequently litigated issues.

After analyzing the history of interpretation, the Administrator opined that the section 203(o) clothing exception "does not extend to protective equipment worn by employees that is required by law, by the employer, or due to the nature of the job," essentially adopting the "plain meaning" rule from Alvarez v. IBP, Inc. (9th Cir. 2003) 339 F.3d 894 "that protective equipment does not fit within the definition of “clothes” under § 203(o), thereby making compensable the time workers spend donning and doffing that equipment ... [giving] the relevant language its ordinary, contemporary, common meaning." (Internal quotations omitted.)

Is Texting Protected Activity?

As reported, the Supreme Court heard oral argument in April, and just issued a unanimous decision in City of Ontario v. Quon. The gist of the decision is that the employee did not have a reasonable expectation of privacy in the pager, and thus the City was entitled to search it. However, the Court came to that conclusion on the narrowest possible grounds, preferring not to make determinations about future technologies today. From the SCOTUS Blog:

...the court unanimously held that it was constitutional to search a police officer’s text messages to a woman with whom he was having an affair. The warrantless search was not an unreasonable violation of the officer’s 4th Amendment privacy rights because it was motivated by legitimate work-related purposes ─ the City of Ontario, Calif. was trying to determine whether it needed to alter its wireless contract, which imposed fees after city employees exceeded character limits on text messages.

 The Court avoided a discussion whether the individual had a reasonable expectation of privacy in the equipment, by stating that the outcome would have been the same one way or the other. The court's justification for avoiding this analysis was that (1) it was not clear that initial analysis (whether the "operational realities" of the situation lowered the employee's expectation of privacy) was required, and (2) they wanted to avoid setting precedent on rapidly changing technologies and society's view regarding privacy. Therefore, to proceed, the Court began with these assumptions:

1. First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City;
2. [S]econd, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and
3. [T]hird, the principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

So the analysis proceeded to answer the limited question whether the city's search was reasonable. Generally, the court observed, warrantless searches are per se unreasonable under the Fourth Amendment. However, one exception is for the "special needs of the workplace":

...when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search.

The Court found that reviewing the messages to see if (1) the employee was not being forced to pay for excessive work-related messages, and (2) that the City was not being forced to pay for extensive personal communications were legitimate reasons to be reviewing the messages at all. And as to scope, "reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use" -- and thus not excessively intrusive.

Some ancillary points of note:

• Other reasons the investigation was not intrusive: (1) once the investigator had the information he needed, he redacted the content to include only what was necessary to show the extent of the personal messages, (2) it was conducted for only a two-month period, though even an audit of all months of overages would have been reasonable, (3) Quon was told not to expect messages sent on the system would be private.
• As to the Ninth Circuit's finding that the audit of all his pager messages for two months was not the least intrusive means, the Court held that there is no requirement for least intrusive means, and that an more intrusive search may yet be reasonable.
• As to the fact that the provider (Arch Wireless) violated the Stored Communications Act by turning over the messages, that fact does not lead to the conclusion that the City's search was unreasonable.

"Knowledge" (for criminal purposes anyway) Must Lie with the Employee, not the Staff

White Collar Crime Prof blogs:

In determining the mens rea under corporate criminal liability, federal courts have sometimes used a theory of "collective knowledge" ... "... the sum of the knowledge of all of the employees." U.S. v. Bank of New England, 821 F.2d 844 (1st Cir. 1987). 

This appears not to be the case in Massachusetts state court, which held in Commonwealth v. Life Care Centers of America, Inc., 926 N.E.2d 206 (2010), that "this theory is illogical and such an argument cannot succeed. If at least one employee did not act wantonly or recklessly, then the corporation cannot be held to a higher standard of culpability by combining various employees' acts." 

The court notes several federal cases that have not endorsed collective knowledge, and also notes that this case is different from the Bank of New England case because it does not involve a Federal regulatory offense. In this case the crime charged was involuntary manslaughter, which the court noted "requires an act taken in disregard of a high probability of harm to others so that the act is wanton or reckless."

Who is an "Employer" in California?

In Martinez v. Combs, the California Supreme Court addressed the issue of who qualifies as an employer for certain aspects of the Labor Code's minimum wage and overtime laws. In that case, agricultural workers sued both their bona fide employers and also merchants and distributors of the employer's products. The workers claimed these later organizations qualified as "employers."

The Supreme Court credited the lower courts' holdings that merchants and distributors that they were not employers of these workers. The Court held, in essence that an employer is one who: 1) exercises control over wages, hours, or working conditions; 2) suffers or permits to work; or 3) engages, creating a common law employment relationship. This is a broader definition than under the FLSA, and appears to further California’s public policy provide greater protection to employees.

Supreme Court takes up Personal Texts on Employer's Device

In City of Ontario v. Quon, a SWAT team was issued pagers, and allowed to use them partially for personal reasons so long as the team-members paid for the personal use. This was in contradiction to standard procedure: employees had no privacy rights to information stored on city equipment. Parsing out the personal usage from the company usage turned out to be too time consuming for the lieutenant in charge, and the city ordered copies of text-messages to evaluate whether to increase the message plan.

The transcripts revealed long sexual exchanges between Quon and two women. Quon paid for the personal messages, but was reprimanded by his department. Quon sued for breach of privacy. The lower courts found that he had no reasonable expectation of privacy in the phone. Now, he's taken the case to the Supreme court on these issues:

1. Whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers;
2. Whether individuals who send text messages to a SWAT team member’s SWAT pager have a reasonable expectation that their messages will be free from review by the recipient’s government employer. (Source, SCOTUS Wiki.)

The Supreme Court heard oral argument in April on these issues (apparently stumbling around the technological challenges of the medium), and is expected to issue its decision sometime soon. Some take-aways from the case thus far include (thanks for the heads up):

1. An ISP's inspection of a company's communication system without notice likely violates the Stored Communications Act. Here, the Ninth Circuit Court of Appeals held that it did (issue not up for review here).
2. Preparing and applying use-policies for company owned equipment is vital. If one had been in place and applied properly, Quon's case never would have gotten this far.
3. Companies should ensure that only qualified individuals inform employees of use policies. The lieutenant should not have been in a position to modify the city's use policy here.

Contact me for a review of your "acceptable use" policy to make sure it covers email, pagers, smart phones, texting, mobile devices, and even use of Internet-based media.

Employment Non-Discrimination Act

The Employment Non-Discrimination Act ("ENDA") is a bill proposed proposed in Congress to prohibit discrimination against employees because of their sexual orientation or gender identity. This protection would extend to all non-religious employers in the country. Specifically, the act would (from HRC):

• Extends federal employment discrimination protections currently provided based on race, religion, sex, national origin, age and disability to sexual orientation and gender identity;
• Prohibits public and private employers, employment agencies and labor unions from using an individual's sexual orientation or gender identity as the basis for employment decisions, such as hiring, firing, promotion or compensation;
• Provides for the same procedures, and similar, but somewhat more limited, remedies as are permitted under Title VII and the Americans with Disabilities Act; and
• Applies to Congress and the federal government, as well as employees of state and local governments.

California's FEHA has similar protections for both groups, so implementation here won't change much. In fact, 12 states and the District of Columbia have protection for sexual orientation and gender identity:  California, Colorado, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington; and nine other states have laws protecting sexual orientation only: Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Nevada, New Hampshire, New York, and Wisconsin. 23 additional states have lesser protections for sexual orientation.

In order to ensure company policies, procedures, and practices are not violative of the FEHA (or the ENDA), contact us for an audit. If you've been accused of unfair discrimination based on sexual orientation or gender identity, or any other protected category, time is of the essence, contact an attorney immediately.

False Premise

All logical arguments are based up initial assumptions, called premises, that must be true for the conclusion to be true. Because the initial assumptions must not be false, it is important to scrutinize propositions before stating them. For instance:

a. All dogs have rabies. (Premise.)
b. Franco is a dog. (Premise.)
c. Franco must have rabies. (Conclusion.)

Because (a) is demonstrably false, (c) has to be false under this argument. That doesn't mean the dog mentioned does not have rabies, but it means you cannot prove it as above.

The real world is rife with this particular logical fallacy. Often this occurs when people make assumptions about the world around them. In the employment context, this might come up in wage claims, when employees extrapolate what happened to other to themselves; or in discrimination claims when employees make assumptions about another person because of their sex or race.

Watch out for these in all drafting employment manuals, too. Assumptions about how and when people act can accidentally impose contract law onto a poorly crafted handbook.

Effects of Disability are the Same as the Disability

That employers must be sensitive to the needs of their disabled employees has been clear for most savvy companies. However, what about that employees related-but-detrimental conduct? So long as it flows from the disability, it is part of the disability, and therefore protected. Gambini v Total Renal Care, 486 F.3d 1087 (9th Cir 2007): conduct resulting from the disability is part of the disability and cannot serve as the basis for termination any more than the disability itself.

In that case, Gambini's performance was slipping, and she blew up (swearing and being disruptive) during a negative performance evaluation. When it was revealed that a psychological disorder may have been the cause, the employer sent her to the hospital for an evaluation. There, she was re-diagnosed with bi-polar disorder, and went out on medical leave.

Meanwhile, the employer decided that the conduct exhibited by Gambini during the meeting made it impossible for her to work there, and terminated her. She sent a note explaining that the complained-of behavior was a consequence of her disability, and asked to be reinstated. The employer refused.

The Court ruled that, "the jury was entitled to infer ...that her 'violent outburst' [was] a consquence of her bipolar disorder, which the law protects as part and parcel of her disability. In those terms, if the law fails to protect the manifestations of her disability, there is no real protection in the law because it would protect the disabled in name only."

For more on disability litigation, contact me.

Uncertainty

One of my jobs as a lawyer is to explain the pros and cons of crucial, expensive, and often emotional decisions to employers who have been accused of some wrongful conduct (usually on wage and hour, workers' comp discrimination, other discrimination, wrongful termination, retaliation, or union-related matters). Always, the advise must be informed by the inherent uncertainty in litigation.

When asked for advice on the art of legal practice, I usually tell students to divorce emotion from the process and apply the law to the facts. Even under those circumstances, the no legal issue -- however frivolous -- is 100% certain. How can this be? The answer is manifold: unscrupulous litigants will "bend" facts to suit their needs, even in the absence of such "bending" some facts lend themselves to  interpretation (e.g., an innocent comment or gesture can show discriminatory animus if repeated or not properly explained), juries are notoriously emotional bodies, and the court itself is not immune from a policy-based view of the facts.

Taking all that into account, the advice proceeds along the lines of, a discussion of the facts, some application of facts to the law, an explanation of the opponent's best case, an explanation of the process of trial (including discovery, pretrial motions, trial filings, interactions in court, the trial itself, and post-trial filings), followed by a range of budgets for the litigation, including best- and worst-case outcomes.

But in the end, the question comes down to this: will the employer prevail at trial? And the answer to that question can never be "yes." On the other hand, rarely is the answer "no." And this is where the discussion of uncertainty begins. At trial, the best, most logically sound argument can fail for three reasons, two legal and one human: credibility, policy, and emotion.

The spectrum runs from the total uncertainty of trial to the total certainty of the early payment of the opponent's demand. In the end, few cases proceed on either of those paths. Instead, nearly all cases resolve through some sort of informal settlement of the issues or alternative dispute resolution or "ADR." These provide a way for the parties to keep some degree of control in the process, and craft an outcome between them, rather than letting the unknown (but neutral) entities of the court and juries decide.

In the end, the client must make that difficult choice: pay some amount up front, or proceed through litigation and let the court decide. I suspect uncertainty played this same key role in memorium, and suspect it will continue play a key role in perpetuum.

Arguing from Ignorance

Common sense is our most basic fall-back when confronted by things outside our understanding. My boss likes to call it the "sniff test." Does some knew information conform to what we already know? If it does not, we're likely to reject it; if it does, we're more likely to accept it. Rejecting an argument based on a personal failure to understand is the argument from ignorance (specifically an argument from personal incredulity). That argument goes something like this:

• I don't understand a.
• Therefore no one can understand a, and therefore a must be false.

Stated succinctly, the argumentum ad ignorantiam goes:

A premise is true only because it has not been proven false, or is false only because it has not been proven true.

That level of sophistication (or lack thereof) may be fine when filtering out the mental cruft of daily life, but when it comes to legal analysis, common sense is insufficient. Instead, a position must be backed up by fact and law. However, the common-sense filtering system may be important to determine which of many arguments to spend the time refuting.

The Jury System

Even for me, an attorney, it can seem so useless: the many hours sitting doing nothing, staring at the poorly laid travertine, hoping your name is called, but dreading it is not....Ah! the joy and sorrow that is jury duty. The jury system is a relic in the English system of law we practice here in the States, but is it worth it?

After all, the judge is usually in a much better position to grasp the subtle meaning of key facts; the jury, on the other hand, is often driven by emotion (likely, on the whole, judges are probably more able to control their prejudices than a wholly disinterested juror). The jury system inconveniences so many: the Court has to maintain whole staffs and expensive courthouse real estate to manage the hundreds of potential jurors who show up for any given summons date, the parties must engage in expensive, time consuming, and uncertain voir dire (questioning of the potentials), and of course the jurors have to disrupt their lives for at least one day, if not for weeks.

What are the pluses then? Historically speaking, we are each (usually) entitled to a jury of our peers when some liberty or property interest is on the table. These peers are selected almost at random from the community the parties live in, then refined by the questioning process to help minimize the potential prejudice. When you see tactics used in movies to hone the questioning, going so far as to pre-research potential jurors (which may happen in very high-value cases), you can understand how important the jury selection process is. This is a process unavailable if the parties choose to allow the court to act as fact-finder.

Additionally, a jury of legal laymen forces the attorneys to craft their arguments in understandable terms. This benefits society as a whole, because if and when these arguments are heard on appeal they may well become law in and of themselves. This process of creating legal precedent is thus driven by the parties...but shaped by the legal system requiring real humans to understand what is happening to their fellow citizens.

The jury system allows citizens to participate in the judiciary, which would otherwise remain alien to most people. This bolsters confidence in the judiciary, especially in an era where it is so politically charged.

The jury system pulls the states ability to make final decisions, and places it in the hands of the people. A very democratic concept indeed. As an attorney, my job is to look at the facts and apply them to the law. As citizens -- for better or worse -- jurors can place the events in a cultural context. This nuance can change the color of the plaintiff's claim, and decide otherwise razor thin issues. With luck, of course, they do this unemotionally and without bias.

This subtle difference is what we call "justice." For if the issues weren't so razor thin, the parties would not go through the expense of adjudicating them. The jury is where the tumult ends, and the parties have to hone their cases to the issues that matter. All the inefficiency and inconvenience aside, it is this gleam of justice which makes the jury a necessary part of the judiciary.

Bureau of Labor Statistics Current Employment Statistics

The U.S. Department of Labor Conducts, Bureau of Labor Statistics, conducts a census-like survey of employers in various industries to track trends and verify the nation's job count: the Current Employment Statistics program. If you receive a form such as BLS 790B, call the number on the form to contact the agent handling your account for more information.

Form BLS 790B is a form to aid employer’s participation in BLS’s Current Employment Statistics program (http://www.bls.gov/ces). The CES is like a job census, designed to count employees per industry, and track trends in employment. The form is authorized by statute. 29 U.S.C. 2. According to their website:

Each month the Current Employment Statistics (CES) program surveys about 140,000 businesses and government agencies, representing approximately 410,000 individual worksites, in order to provide detailed industry data on employment, hours, and earnings of workers on nonfarm payrolls.

Filling out the form is not mandatory, nor is participation in the program for California businesses:

Please note this report is mandatory in North Carolina, … Oregon, … Washington, … and in South Carolina. * * * You are not required to respond to the collection of information unless it displays a currently valid OMB control number.

If an employer does not complete the form, the agent assigned to their case will contact them to solicit the requested information.

However, participation in the program is beneficial to the Bureau’s mission, and responses will not generally be identifiable by employer, or used of any other purpose:

We request your cooperation to make the results of this survey comprehensive, accurate, and timely. The Bureau of Labor Statistics, its employees, agents, and partner statistical agencies, will use the information you provide for statistical purposes only and will hold the information in confidence to the full extent permitted by law. In [with] Federal laws, your responses will not be disclosed in identifiable form without your informed consent.

The estimate of time to participate in the program is about 11 minutes per month:

We estimate that it will take an average of 11 minutes to complete this form each month including time to review instructions, search existing data sources, gather and maintain the necessary data, and complete and review this information.

Generally, the maximum amount of time any employer will have to participate is five years. Many employers will be thanked and asked to discontinue filing the forms in advance of that time, depending on various factors. Questions about length of participation are best addressed to the agent in charge of the case after the first collection of data is made.

Older Workers May be Better Workers

In our increasingly service and knowledge based economy, the older worker may have an advantage. As reported on NPR, it turns out that the brain peaks in middle age, seeing the bigger picture more rapidly, increasing processing speed with increased "white matter" (a fatty substance coating the usual grey matter), and increased problem solving -- all in the older brain.

As reported by Barbara Strauch in her book The Secret Life of the Grown Up Brain, some stereotypical age-related symptoms do occur, such as forgetfulness, but these are not necessarily as bad as they seem, and can be combated by challenging the brain every day, preferably through real intellectual rigor, such as making a cogent argument to an intellectual adversary (makes me glad I'm a lawyer).

So, employers are bound by the stick presented by the ADA and the ADEA (outlawing age discrimination in employment), but are may find that hiring and retaining older workers is better for the bottom line.

Congress Considers a "fix" to the Gender Pay Gap

On January 29, 2009, President Obama signed into law the Lilly Ledbetter Fair Pay Act, extending the time plaintiffs have to bring sex discrimination claims based on inequitable pay compared to men. Despite a year under this law, NPR reports that women are still only paid $0.77 for every $1 paid to men in comparable positions:

Congress seeks to address this imbalance with a new act, the Paycheck Fairness Act, which has already passed the House without amendment, which:

• [Replaces the "any factor other than sex" defense with the bona fide factor defense (education, training, or experience).]
• States that the bona fide factor defense shall apply only if the employer demonstrates that such factor: (1) is not based [on] a sex-based differential ...; (2) is job-related ...; and (3) is consistent with business necessity.
• [States] that [the bona fide factor defense] defense shall not apply where the employee demonstrates that: (1) an alternative employment practice exists that would serve the same business purpose without producing such differential; and (2) the employer has refused to adopt such alternative practice.
• Prohibits retaliation for inquiring about, discussing, or disclosing the wages of the employee or another employee [in connection with charges or investigations].
• Makes employers who violate sex discrimination prohibitions liable in a civil action for either compensatory or ... punitive damages.
• [Allows class actions or certain recovery by the Secretary of Labor.]
• [Authorizes funding and directs agencies to implement certain education and research.]
• [Requires] the EEOC to collect from employers pay information data regarding the sex, race, and national origin of employees for use in the enforcement of federal laws prohibiting pay discrimination.

As such, if passed and signed into law, this act imposes one obligation (providing data to the EEOC) and at least two litigation restrictions on employer facing discrimination charges under the Act. Cook Brown has many years of experience working on both wage and hour, retaliation, and discrimination employment law issues, and can advise how to implement policies to reflect the Paycheck Fairness Act if and when it becomes law.

Correlation Does Not Equal Causation

Among the easiest logical errors to fall into is to assume that because one event followed another, it must have been caused by the first. That logical fallacy is called post hoc ergo propter hoc, or "after which therefore because of". However equally fallacious is the idea that because two events are related in some way, there is a causal relationship between them, which is, instead cum hoc ergo propter hoc ("with this, therefore because of this"). Succinctly stated:

Because two events are related in some way, does not imply a causal relationship among them.

This sort of fallacy comes up in medical practice and statistics frequently. However, it is just as frequently seen in legal arguments -- and as I've mentioned before, we must keep a watchful eye on both our own arguments and those of our opponents.

I often see the case where because an employee was terminated, and because the employee happens to be a member of a protected class (race, sex, disability, etc.), the employee will raise a discrimination claim. The law and logic require more to prove discrimination (as it turns out, the law and logic share a lot in common): there must also be a correlation between the protected class and the termination. The law calls this correlation a nexus ("bond"), defined as a connection between two things.

As always, contact me for more information.

Department of Labor: Guidance re Mortgage Loan Officers

The US DOL Administration issued an opinion stating that mortgage loan officers do not qualify as administrative employees exempt under the Fair Labor Standards Act, 29 U.S.C. § 213(a)(1). This opinion interprets the administrative exemption in a far more detailed way than the DOL has treated the subject in the most recent past, and as such should be interesting reading for many employers.

Contact Cook Brown, LLP for assistance with federal and state wage and hour questions.

Certification as Minority, Women, or Disadvantage Owned Business

If you're thinking of submitting a bid on any public contract, this information may help. First, identify the agency you may contract with and locate links to their certification programs (examples follow); second, prepare the following information; and third, fill out the appropriate application as provided by that agency.

I.   AUTHORITY

In California, awarding departments are empowered to develop a standardized certification procedure for participating state or local agencies.Certifications may be made by participating state or local agencies, where the criteria of the statute are met (see below). Generally, awarding entities must accept such certification. Within 60 days of application, participating agencies must certify the business enterprises if they meet the criteria. This certification lasts for two years, and is published in a database designed for the purpose. Pub. Contr. Code §§ 2050 et seq.

II.   DEFINITIONS

For purposes of the statute, minority means: “a citizen or lawful permanent resident of the United States who is an ethnic person of color and who is [inter alia]: Black …; Hispanic …; Native American …; Pacific-Asian …; [or] Asian-Indian, and must meet these criteria:

1. The business is at least 51 percent owned by one or more minorities or, in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more minorities.
2. A business whose management and daily operations are controlled by one or more minorities who own the business. 
3. A business concern with its home office located in the United States which is not a branch or subsidiary of a foreign corporation, firm, or other business. Pub. Contr. Code § 2051(d) 

For purposes of the statute, a woman business enterprise is one which meets these criteria:

1. The business is at least 51 percent owned by one or more women or, in the case of any business whose stock is publicly held, at least 51 percent of the stock is owned by one or more women.
2. A business whose management and daily operations are controlled by one or more women who own the business.
3. A business concern with its home office located in the United States which is not a branch or subsidiary of a foreign corporation, firm, or other business. 

For purposes of the statute, a disadvantaged business enterprise is one which meets these criteria:

1. A “disadvantaged business” as that term is used in Section 23.62 of Title 49 of the Code of Federal Regulations.
2. An individual proprietorship, partnership, corporation, or joint venture. 
3. Organized for profit, with a place of business located in the United States and which makes a significant contribution to the United States economy through payment of taxes or use of American products, materials, or labor. 

The application must include, and be supported by affidavit, the: business name, address, contact person, telephone, ownership type, ethnicity and citizenship of controlling interest, documentation of qualifying ownership, names of partners/owners, details of managerial control, bonding statement, statement of prior denials, type of business, and licensure information. Pub. Contr. Code § 2054 (b).

III. EXAMPLES

Actually engaging in this process will depend on what kind of contracts the bidding company may wish to participate in. Each participating agency has their own process, and may contract out to private businesses to provide the certification.

1. Cal. Department of General Services, Office of Small Business and DVBE Services.
2. CUCP: For various municipalities, counties, transit agencies, airports, and special districts.
3. BART on the CUCP.
4. AC Transit on the CUCP.
5. Cal. DOT certification.
6. Cal. Department of General Services “eProcurement” with information on bidding and certifying for qualifying businesses.
7. University of California self-certification form (disadvantaged). 
8. San Diego unified certification program (disadvantaged). 
9. Southern California Minority Business Development Council. 
10. Northern California Minority Supplier Development Council.

The "Net Neutrality" Decision & Business

In a lawsuit with far reaching implications for use and governance of the Internet (capital I), the 10th Cir. Court of Appeals ruled that despite that “Congress gave the [FCC] broad and adaptable jurisdiction so that it can keep pace with rapidly evolving communications technologies [and that t]he Internet is such a technology ... [the FCC has no] untrammeled freedom to regulate activities over which the statute fails to confer ... authority.” Based on that analysis, vacating the FCC's order which prevented Internet services from filtering the content you and I use every day. (See a summary here: "The F.C.C. will now have to reconsider its strategy for mandating “net neutrality,” the principle that all Internet content should be treated equally by network providers.")


The only real implication for business is that Comcast, and other service providers, may now slow access to certain websites (the site which spawned the FCC's ruling was BitTorrent, a peer-to-peer file transfer application which may be used to send legitimate as well as pirated software to and from individuals' computers.


If file transfers are important to your business, it is important to ask your Internet service provider if they will filter content you receive from the Internet, and if so, which sites they will filter. Also, look out for unexplained slowdowns transferring your legitimate downloads. However, also consider that the filtering of sites such as BitTorrent can drastically increase the bandwidth for other users.


Just because the FCC cannot protect you in this regard, businesses and individuals have the power to switch providers (presuming there are multiple providers in your area).

Arguing the "Straw Man"

In any debate, two sides argue from two points of view. However, for the debate to be meaningful, the argument must be about the same topic. As such, in order to undermine an opponent's argument, nefarious arguers will try to manipulate the topic, rather than improving their underlying logic.

There are several ways to do this. The most straightforward, and not a logical fallacy itself, is arguing about how to frame the discussion: framing the debate is a threshold issue. However, when the topic itself is co-opted by one side, anything argued by that side thereafter is fallacious, because it does not flow from state premises.

One way of doing this is to argue against a position not taken by your opponent. That is the straw man:

Arguing against a distorted, exaggerated, conclusory, or manufactured position.

The name probably derives from the fighting a man of straw is easier than fighting a real one. But the concept is: if you can frame your opponent's position, you can make him appear foolish while attacking him (and not his arguments). As such, a straw man is a type of ad homenim ("against the person") attack -- I'll write about that one soon.

The employment setting is ripe for straw man arguments. Often employees feel wronged but are unable to articulate why. Similarly, employers just want to get the job done, and so they can easily overlook employee's legitimate needs. Whenever we find ourselves arguing as if the other side had state a position, its important to go back and see what exactly they are saying. On the other hand, being aware of this type of error will prevent the issues being co-opted which can easily misled a busy third party (like the court!).

In Defense of the Adversarial System

When I began law school, one of my professors spoke to the student body, and described our legal system as a replacement for the brutality which can come from competition for rights and resources. Absent an active and accessible judiciary, aggrieved parties are relegated to "self help" to resolve disputes. What sort of help is available to that person? If they have the physical strength to accomplish it, the self help involves physically forcing the opponent to comply.

When modern-day litigants wait months or years for resolution of their disputes, they may wish to return to the days of clubs and pistols. However, the Rule of Law has several distinct advantages: it places power in the hands of the less powerful, it grants ultimate judgments to a neutral party, it allows non-parties (the rest of the world) the peace of mind to know that they won't be caught in the cross fire, and it lets the parties know that they can be heard.

How is this accomplished? By replacing weapons with facts, might with precedent, and actions with arguments. Facts are the tools with which the parties pitch battle in modern society, and the law can be used as both a sword and a shield in these fights. And though sometimes the system fails, and the wrong party prevails (and sometimes the system works and the correct party prevails), usually the courts come down somewhere in the middle depending on the shade of grey.

To the outside world, the courts can seem to be a behemoth pumping out justice at a snail's pace. From an employer's perspective, plaintiff's seem to be clogging the courts with frivolous cases just to get a big payoff. While both the court and plaintiffs (and defendants too, for that matter) sometimes act as barriers to justice, on the whole the system works better than the alternative it was designed to replace -- better to lose your shirt than your eye or your head!

One of the regular topics I'll write about is why the system, despite its flaws, functions well for us its patrons.

Gist of Health Care Reform Law for Employers

From the Henry J. Kaiser Family Foundation:

Generally speaking, the new Patient Protection and Affordable Care Act will:

• Create an essential health benefits package that provides a comprehensive set of services, covers at least 60% of the actuarial value of the covered benefits, limits annual cost-sharing to the current law HSA limits ($5,950/individual and $11,900/family in 2010), and is not more extensive than the typical employer plan. Require the Secretary to define and annually update the benefit package through a transparent and public process. (Effective January 1, 2014)
  Prohibit abortion coverage from being required as part of the essential health benefits package. (Effective January 1, 2014)
• Require all qualified health benefits plans, including those offered through the Exchanges and those offered in the individual and small group markets outside the Exchanges, except grandfathered individual and employer-sponsored plans, to offer at least the essential health benefits package. (Effective January 1, 2014)

Specifically as to employers, the Act will:

• Assess employers with more than 50 employees that do not offer coverage and have at least one full-time employee who receives a premium tax credit a fee of $750 per full-time employee. Employers with more than 50 employees that offer coverage but have at least one full-time employee receiving a premium tax credit, will pay the lesser of $3,000 for each employee receiving a premium credit or $750 for each full-time employee. For employers that impose a waiting period before employees can enroll in coverage, require payment of $400 for any full-time employee in a 30-60 day waiting period and $600 for any employee in a 60-90 day waiting period. (Effective January 1, 2014)
• Exempt employers with 50 or fewer employees from any of the above penalties.
• Require employers that offer coverage to their employees to provide a free choice voucher to employees with incomes less than 400% FPL whose share of the premium exceeds 8% but is less than 9.8% of their income and who choose to enroll in a plan in the Exchange. The voucher amount is equal to what the employer would have paid to provide coverage to the employee under the employer’s plan and will be used to offset the premium costs for the plan in which the employee is enrolled. Employers providing free choice vouchers will not be subject to penalties for employees that receive premium credits in the Exchange. (Effective January 1, 2014)
• Require employers with more than 200 employees to automatically enroll employees into health insurance plans offered by the employer. Employees may opt out of coverage.

The number of changes affecting individuals is long. Future blog posts will be devoted to them.

False Dichotomy

In any debate, including employment litigation, the parties must state their premises. When put to the task, there is not limit to the mistakes -- both deliberate and inadvertent -- which can skew an argument. As such, litigators must be on the lookout for logical fallacies in both opponent's and their own writing and oration. As a primer, I will work on one such fallacy each week.

When stating the premises, the arguer might say something like "If its not A, it must be B." Unless both A and B have been established as the only alternatives, then this statement is false. That is called a false dichotomy or false dilemma. Stated succinctly:

Arbitrarily limiting a range of possibilities to only two is a false dichotomy.

Similarly, Arbitrarily limiting a range of possibilities to a subset of the whole is a false dilemma. See another definition here.

For instance, if an employee's performance become suddenly erratic, and workplace issues are eliminated, presuming the employee has a drinking problem presents a false dichotomy: either the employee had a workplace problem or a drinking problem. On the other hand, when an employee attributes "stress" to his job without proper medical examination: the employee is assuming that work must be he cause, since his home life is good.

The results of an argument from false premises is also false, so be on the lookout for this sort of thinking!

Health Care Reform Bill -- HR 3590 -- and What it Means to You

As you probably know by now, H.R. 3590, the nation's health care reform bill passed the House last night, and awaits only the President's signature to become law. As with all laws, the rhetoric is loud and the real-life details are harder to grasp. Here are a couple useful guides to the reform:

• NPR's Consumer's Guide to the Health Overhaul: Explains the bill in question and answer format, including what will happen to employers' requirements to provide healthcare.
• NPR's list of "early deliverables" flowing out of the bill, explaining the immediate impact of the bill to individuals.

 With the President expected to sign the bill on Tuesday, these changes will likely take effect this week.

Requests for Charitable Donations to Subcontractors via Work Email?

When making requests of others -- especially your employees -- on behalf of charities, make it clear you have no way to know that they made such donations, and insulate any business implications (such as the involvement of your customers or subcontractors in the charity) from the request. -- Randy Cohen, the Ethicist.

Even Judges Are Human -- and Discovery Disputes Rankle

As reported by the ABA and bloggers, "Chief U.S. District Judge Vaughn Walker “strode off the bench” as lawyer Stephen Bomse was beginning a new sentence in his argument on behalf of civil rights groups that were fighting production of documents, the Legal Pad blog reports. Bomse remained at the lectern for a second before turning to collect his things, the blog says."

Though the judge did not say why he left the bench, bloggers speculated that he "did not appear to be pleased to be reminded of the several times the 9th Circuit has overruled his orders in this case." More than a matter of pride, such tactics undermine the attorney's credibility and ultimately his client's best interests.

Moreover, this event illuminates the value of discovery -- the process of information exchange between the parties -- and the distaste all courts have for games during it.

Under California's Civil Discovery Act, the parties are required to exchange relevant information to avoid "trial by ambush" and safeguard against gamesmanship, surprise, and delay. The Discovery Act is also designed to provide an effective means of detecting and exposing false and sham claims and defenses (citations omitted).

When the parties argue about these things, they undermine this purpose usually before the very person who is to decide the ultimate issues in the case. Rarely is this done to protect legitimate interests, and so is a tactic leading to an inference of hiding something. As such, argument about burdens in discovery are best kept narrow and specific, rather than broad allegations of relevance.

I don't know the specifics of the arguments here, but I can feel the judge's exasperation!

Personality Tests in the Workplace

On a recent episode of the Skeptics' Guide to the Universe, a listener asked the panel's opinion on personality tests, specifically the enneagram personality type test and the Myers-Briggs test. Generally under Title VII and California's FEHA, employment decisions (including hiring, firing, promotion, demotion, etc.) may not be made on any of the protected categories (sex, race, religion, disability, etc.).

However, case law restricts the use of hiring/advancement tests which are discriminatory or have a "disparate impact" on one of the protected groups. Once shown to have a disparate impact, such tests are impermissible in the workplace unless "shown [by expert opinion] to be predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated." Albemarle Paper v. Moody.

Among the factors which will affect the legal validity of employment tests, the courts look at whether: the test-makers conducted a suitable job analysis; the test-makers used reasonable competence in constructing the test itself; the content of the test is related to the content of the job; the content of the test is representative of the content of the job; and the scoring system “usefully selects from among the applicants those who can better perform the job.” Gulino v. N.Y. State Ed. Dept.

Additionally, the courts consider the EEOC's Uniform Guidelines on Employee Selection Procedures to bear on the analysis.

The rogues in Skeptics Guide found the enneagram test to devolve into magical thinking, and the Myers-Briggs test to merely parrot back the employee's responses in a conclusory manner. Though these opinions are informal, they don't bode well for an such tests to pass muster under the cases. As such, employers should thoroughly examine these tests before implementing them into any employment decision.

Mediation in the Employment Context

Mediation is a form of alternative dispute resolution ("ADR"), a set of party-driven procedures designed to resolve a legal dispute without a formal trial before a judge. Instead, a mediator assists the parties to come to a resolution of the matter. Mediation is usually a form of non-binding ADR, meaning the parties can walk away from the process at any time. However, a good-faith attempt at mediation may be ordered by some courts or may be conducted by the court itself (usually called a "mandatory settlement conference" or "MSC").

Because mediation is informal, there are as many different ways to go about it as there are mediators. Often the each party will prepare a "mediation brief" -- essentially a statement of the party's position identifying key evidence, testimony, and legal authority.

The mediator's job is usually to weight the evidence and legal authority and assist each side in a rational evaluation of their chances at trial. The mediator brings impartial legal experience to the issues, assisting the parties to find a middle ground.

However, mediation can play a secondary role -- that is allowing the employee to air his or her disputes in a safe place. If appropriate, a good mediator may allow the parties to address one another, and explain what happened from their perspective. Although this by itself might not assist in resolving the underlying legal positions, it can have important implications in the case.

An employer-employee relationship is often an emotional one. Unintended slights might be misconceived on either side, and may be amplified by litigation. These emotional issues may lead to poor results at the mediation (i.e. no dispute resolution). However, mediation allows the parties to control their fates in a way that a regular trial of the issues does not:

• Mediation and settlement are usually confidential; whereas trial and verdict are usually public.
• Mediation cost is usually significantly lower than trial cost.
• Creative solutions can be implemented by the parties; whereas the courts are bound to legally supported awards.
• Trial is disruptive to business and personal schedules.
• Uncertain litigation can affect a corporation's ability to get funding or the like.
• "Dirty laundry" gets to stay in the dark, avoiding bad press and other lawsuits.
• Jury verdicts can be much higher than the parties dream of; and trial can be an all-or-nothing battle.

To enjoy these benefits, employers must be able to detach themselves and see resolution as a business decision. Whereas, employees must understand that usually they bear the burden to prove their case, and that such proof is often an uphill battle. Experience attorneys know when mediation is appropriate and when it will just add to the cost of litigation.

Defending Labor Code Section 132a Discrimination Cases: Discovery

Just like in any civil lawsuit, defendants in Labor Code section 132a cases are entitled to prepare for trial by gathering information from the employee. The term of art is "discovery," and the Civil Discovery Act governs this process in California. The Labor Code gives the WCAB judge authority to guide the case as she sees fit, but nothing in limits the parties' rights under the discovery act.

As I wrote earlier, often the 132a discrimination cases will sit around for years before the plaintiff acts on them. As such, the formal cut-off dates for discovery often don't apply, and employers will wait until to conduct discovery, or will piggy-back onto discovery in the underlying WC case by attending the depositions or just by using deposition testimony for the 132a defense. However, sometimes it is imperative to get discovery underway immediately, for instance if the plaintiff-employee seems to be pursuing the case aggressively, an early deposition will stave off the need for continuances at the hearings.

The WCAB judge has strict control over procedure in cases before her, and since the applicable Labor Code sections do not allow for motions on the pleadings or for summary judgment motions, the WCAB is unlikely to dismiss even the most frivolous cases without the usual course of hearings (which I'll discuss later). As such, in cases where the employee's claims are baseless, employers can try to move a case forward by taking the employee-plaintiff's deposition, and filing a "Declaration of Readiness to Proceed," moving the case onto the first hearing -- the Mandatory Settlement Conference.

This is only one scenario where the employer may gain advantage by pursuing the matter, rather than letting it lie dormant. Contact me if you have questions.

Occam's Razor

Vital to understanding employee's complaints and the extent of protection afforded by the law is the ability to think critically about the issues. When presented with employee complaints, witness reports, and employment records, it can be difficult to cut through the volume of material and hone in on the important issues. Even when the allegedly harmed employee is completely honest, emotions can often lead to erroneous conclusions -- there are as many ways to thwart logic as there are to support it.

For this reason, employers need a ready logical toolkit to parse the conjectural from the relevant. Almost like a crime-scene, the fresher the facts, the easier it is to find the smoking gun.

The first tool in the logical toolkit is Occam's Razor:

The simplest conclusion is that most likely true.

In Latin, William of Ockham wrote: pluralitas non est ponenda sine necessitate, "plurality should not be posited without necessity," though it has been rewritten many ways.

In the context of factual investigations, this principle is essentially one of economy. When asked for the "facts" of  events they witnessed, people often embellish, explain, or remember things as they think they ought to have been. A good interviewer can, through questioning, focus on the actual complaint made, and eliminate non sequiturs. This is Occam's Razor at work: finding the correct (i.e. simplest) conclusion by building up a profile of the event in question.

As part of my practice, I regularly interview witnesses -- both adverse and friendly, both informally and under oath -- in employment discrimination, wage-and-hour, and trust fund contributions cases, as well as toward best employment practices.

Social Networking in the Workplace

Social networking is how the modern generation connects to the world. Social networking is, essentially, a set of technologies, including so-called Web 2.0 sites (those allowing users to manipulate the content), text/picture/video messaging via smart phones, and posting of content to websites via email or by phone.

According to the Pew Research Center, over 70% of teens and young adults use social networking regularly. (In fact, no fewer than 50% of both adults and teen go on line at least once per day.) Social networking requires a sophisticated understanding and use of technology: locating the sites and friends within those sites, managing content to avoid offending others, and navigating multifarious inputs (via mobile device, through email, through website, etc.). Which is why some analysts believe that corporations large and small must have an social networking presence.

Some of the reasons given are that social media is inexpensive (see Alice in Wonderland's Facebook page with over one million fans), puts small and large companies are on a more-even playing field, allows clients to connect directly with the company, and generates traffic to corporate websites. The potentially huge audience, combined with social networking skills ingrained in 70% of the two succeeding generations means that information dissemination (including advertising) are about to transform yet again.


The law, meanwhile, has regularly morphed to encompass technological advancements, albeit not as quickly as the general population. For instance, "electronic files" has been clarified for litigation as late as 2006, imposing sanctions for destruction of electronic files, even when under a bona fide policy. What this means for relevant data posted to social networking sites remains to be seen.

As to social networking sites, employers may not necessarily use information located on even public websites, where the site's terms of service do not allow for it. Nor may employers use such information when it would otherwise violate an applicant's or employee's privacy or protected status (sex, race, age, disability, etc.).

Other risks of social networking include, ready posting of material damaging to business and offensive to other employees by irresponsible workers.

Nevertheless, ready access to a constant stream of information is not only inevitable, but is reality for many employees. An employer's policies need to reflect the concerns about social networking, without infringing on the obvious and growing utility of them.

Workers' Compensation Discrimination under Labor Code § 132a

When an employee files for workers' compensation benefits, they may also file a companion case under Labor Code section 132a. Called "workers' compensation discrimination," or 132a case, these are separate matters from the discrimination case under the law.

Under Labor Code § 132a, the employee must show that he or she was (a) had a negative employment action taken against him or her because of the industrial injury, and that (b) he or she was singled out for such treatment. This is often shown by the closeness in time of the industrial injury and the termination or demotion. Unlike the underlying workers' comp case, this is not an open-and-shut matter where all that must be determined is the dollar value.

Because of this, your workers' compensation carrier is probably not your best advocate in solving the 132a matter. Besides, workers' comp insurance rarely covers discrimination cases, since they are considered "intentional" or "willful." Therefore, to resolve the case, find an attorney experienced in worker's compensation discrimination cases -- who can hone in on the records and witnesses to make the best case either before or at the hearing, and can develop defenses with an eye toward speedy resolution.

Cases before the Workers' Compensation Appeals Board ("WCAB") are often party-driven, meaning the attorneys set the pace and schedule for evidence-gathering and hearings. Because workers' compensation cases often take a long time to resolve, employees often leave their discrimination matters on the back burner. But employees can be entitled to back-pay, exposing employers to a possible unwelcome surprise once the employee becomes "permanent and stationary."

Cook Brown has the expertise to know when to pursue 132a cases, and when to let them sit.

Employee Compensation for Time Checking Tweets?

A Wisconsin maintenance worker filed a wage and hour class action for time spent “on call” with a company–owned PDA. The complaint alleges that he was “forced to work off the clock” just because the company provided the PDA. (Rulli v. CBRE.) The complaint alleged that the employer's demand for 15 minute turn-around equals a 24–hour workday.

However, the Courts have debated whether use of convenient electronic devices is a boon to employees or an infringement on their rights. Employees "waiting to be engaged" are generally not paid for that time, while those "engaged to be waiting" are. (Reimer v. Champion Healthcare; Pabst v. Okla. Gas and Elec.) How will this case turn out in California?

For more information, see my article Avoiding the PDA Time Trap at cookbrown.com.