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!).