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.