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!).