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.

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.

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.