Hello everyone!
Well, everyone waiting for news on the status of meal and rest breaks in California - that wait has ended (at least for now.) The California Court of Appeal in the Brinker decision just held:
"With these principles in mind, we conclude the class certification order is erroneous and must be vacated because the court failed to properly consider the elements of plaintiffs' claims in determining if they were susceptible to class treatment. Specifically, we conclude that (1) while employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken; (2) employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period; (3) employers are not required to provide a meal period for every five consecutive hours worked; (4) while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and (5) while employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so. We further conclude that because the rest and meal breaks need only be "made available" and not "ensured," individual issues predominate and, based upon the evidence presented to the trial court, they are not amenable to class treatment. Finally, we conclude the off-the-clock claims are also not amenable to class treatment as individual issues predominate on the issue of whether Brinker forced employees to work off the clock, whether Brinker changed time records, and whether Brinker knew or should have known employees were working off the clock. Accordingly, we grant the petition and order the superior court to vacate its order granting class certification and enter a new order denying certification of plaintiffs' proposed class."
This is HUGE!!! According to this decision, employers only need to provide employees with the opportunity to take meal breaks - they do not need to ACTUALLY ENSURE THEY ARE TAKEN.
Stay tuned for an upcoming podcast on this at www.employerhelpcast.blip.tv.
Or, if you would like to discuss this decision, and the impact it could have on your operations (or any lawsuit or claim that is pending or possibly pending), feel free to give me, Helene Wasserman, a call, at 310-772-7288.
Take care
Helene
Tuesday, July 22, 2008
Friday, February 29, 2008
The Reason Why People Hate Lawyers
Yes, I am a lawyer. And every so often I read a case that explains to me why it is that people hate lawyers so much. Today I read just such a case.
The plaintiff in Harrington v. Payroll Entertainment Services, Inc. had a $44.63 claim against his former employer for unpaid overtime. Yes, you read that right, $44.63. And, of course, he found an attorney to file a lawsuit in order to get that money. In fact, he believed there were others who also were owed overtime, and he filed a class action alleging various violations of California's Labor Code. There were a total of 16 people affected by the violations. Calculations done by the employer revealed that the total amount of overtime owed was $714.08. Because of various penalties, etc. that had accrued, the case ultimately settled for $10,500. As part of the settlement, the parties agreed that Harrington would be considered the "prevailing party" for purposes of an attorney fee award. So far, so good.
Harrington's attorney then submitted a motion for fees, seeking $46, 277, more than 1000 times the amount of the value of Harrington's claim, and more than four times the amount of the settlement. The documentation supporting the award noted that there were five lawyers and one paralegal working on the case, with one lawyer billing 55.6 hours at $525 per hour! On a case that arose from a $44.63 claim. The trial court judge denied the motion outright, and the Court of Appeal reversed, awarding $500. Maybe that wasn't enough, maybe it was. But it certainly sent a message.
Yes, labor code violations can be costly, both in terms of liability and the attorneys fees that must be paid if an employer is found to violate the labor code. For some useful information about how to avoid violating the labor code, check out my podcasts at http://employerhelpcast.blip.tv/file/224221/ and http://employerhelpcast.blip.tv/file/224199/.
But the fact that the lawyers spent so much time (and money) and thought it was reasonable to recover that amount of money (which was so many times the amount of recovery their clients received), is what gives many people a bad feeling about lawyers.
The plaintiff in Harrington v. Payroll Entertainment Services, Inc. had a $44.63 claim against his former employer for unpaid overtime. Yes, you read that right, $44.63. And, of course, he found an attorney to file a lawsuit in order to get that money. In fact, he believed there were others who also were owed overtime, and he filed a class action alleging various violations of California's Labor Code. There were a total of 16 people affected by the violations. Calculations done by the employer revealed that the total amount of overtime owed was $714.08. Because of various penalties, etc. that had accrued, the case ultimately settled for $10,500. As part of the settlement, the parties agreed that Harrington would be considered the "prevailing party" for purposes of an attorney fee award. So far, so good.
Harrington's attorney then submitted a motion for fees, seeking $46, 277, more than 1000 times the amount of the value of Harrington's claim, and more than four times the amount of the settlement. The documentation supporting the award noted that there were five lawyers and one paralegal working on the case, with one lawyer billing 55.6 hours at $525 per hour! On a case that arose from a $44.63 claim. The trial court judge denied the motion outright, and the Court of Appeal reversed, awarding $500. Maybe that wasn't enough, maybe it was. But it certainly sent a message.
Yes, labor code violations can be costly, both in terms of liability and the attorneys fees that must be paid if an employer is found to violate the labor code. For some useful information about how to avoid violating the labor code, check out my podcasts at http://employerhelpcast.blip.tv/file/224221/ and http://employerhelpcast.blip.tv/file/224199/.
But the fact that the lawyers spent so much time (and money) and thought it was reasonable to recover that amount of money (which was so many times the amount of recovery their clients received), is what gives many people a bad feeling about lawyers.
Thursday, February 14, 2008
Happy Valentine's Day!
A word for all employers on Valentine's Day:
Does Cupid have Your Employees in his Sights?
It is that time of year again. Flowers and hearts, chocolates and cards. But, what is an employer to do if the objects of his or her employees’ affections are their co-workers, supervisors, or the people they supervise? What’s more, what happens if the affections are not reciprocated? Or, what if they are?
Valentines’ Day seems to give many employees a “free pass” to be playful and romantic at work. Heart-shaped candies that say “Be Mine” are left on people’s desks. Chocolate roses are presented. Jovial cards reminiscent of grade school days are given. E-cards are sent (using office computers, of course.) Harmless, right?
Maybe yes, maybe no. Not to criticize harmless fun, but where is the line to be drawn at the workplace? While most people don’t view cupid as being a sexual being, there is no mistaking the message of many of the provocative gifts, cards and e-cards sent at work on Valentine’s Day. People often consider Valentine’s Day as being exempt from company rules and regulations about inappropriate workplace conduct. It is Valentine’s Day, remember romance?
When affections are directed at someone who does not share the feeling, the object of the affection could feel put upon, uncomfortable, or even worse, sexually harassed! And if the person presenting the “friendly valentine” is a supervisor, then the unwilling recipient could feel obligated to reciprocate in order not to offend the person who evaluates her work and determines her raises.
What about the co-workers of the person who receives that special box of chocolates or roses? Those people see their supervisor showing valentine’s favoritism towards their co-worker, may suddenly believe he is treating her better than he is treating them. She will get the better assignments, the “plum” positions, and a higher raise. She is the manager’s “love interest,” his paramour, which makes the other employees feel uncomfortable and mistreated. Claims can be filed by both the unreceptive “love interest,” as well as the uncomfortable co-workers. It is a “lose-lose” situation for the employer and the Romeo supervisor.
What can be equally as uncomfortable is a situation where there is reciprocity of affection. Whether amongst co-workers or managers, outward displays of affection in the workplace, on Valentines Day or not, can make others in the workforce feel uncomfortable. Employees may not like watching people hugging at work, awkward that they may be next to be hugged (or that they need to allow themselves to be hugged to be accepted.) Employees may draw the conclusion that the way one “gets ahead” in the company is by becoming romantically involved with a supervisor. Employees may get nauseous hearing too many “honey, baby, sweetie” remarks at work.
Then, what happens if the once-consensual relationship sours? What was once welcome behavior by both people suddenly becomes unwelcome by one of them. The affectionate remarks, cards, gifts, and “love taps” suddenly is offensive, and considered to be harassing by the former love interest. Many companies have even sought legal counsel to create “love contracts,” where the participants in the consensual relationship acknowledge that the relationship exists, that it is consensual, and that nothing that happens between the two love birds can be considered harassment. That is, of course, until one of the love birds flies from the relationship and lets their employer know that the “love contract” is no longer in effect. Not only can this disrupt the relationship between the individuals involved, it can also disrupt operations. From office gossip to arranging for quickie job transfers, the “break up” can dominate a once-productive workplace.
The best way for employers to protect themselves and their employees from uncomfortable and unwelcome activity, both on Valentine’s Day and throughout the year, is by making sure that all employees are trained about sexual harassment, how to respond, and how to complain. In some places (like California), this training is mandated by law for many employers. Even though employers cannot control how their employees interact, training ensures that they have done what they can to educate their employees.
Maybe employers should pick Valentine’s Day to do sexual harassment training? Long-stemmed chocolate roses for everyone!
If you would like to find out more about sexual harassment issues, check out my podcast at http://employerhelpcast.blip.tv/file/270431/. Also, all employers should (and all employers with 50 or more employees MUST) conduct sexual harassment training. To find out more about employers' sexual harassment training obligations, check out http://employerhelpcast.blip.tv/file/337812/
Happy Valentine's Day
Helene
Does Cupid have Your Employees in his Sights?
It is that time of year again. Flowers and hearts, chocolates and cards. But, what is an employer to do if the objects of his or her employees’ affections are their co-workers, supervisors, or the people they supervise? What’s more, what happens if the affections are not reciprocated? Or, what if they are?
Valentines’ Day seems to give many employees a “free pass” to be playful and romantic at work. Heart-shaped candies that say “Be Mine” are left on people’s desks. Chocolate roses are presented. Jovial cards reminiscent of grade school days are given. E-cards are sent (using office computers, of course.) Harmless, right?
Maybe yes, maybe no. Not to criticize harmless fun, but where is the line to be drawn at the workplace? While most people don’t view cupid as being a sexual being, there is no mistaking the message of many of the provocative gifts, cards and e-cards sent at work on Valentine’s Day. People often consider Valentine’s Day as being exempt from company rules and regulations about inappropriate workplace conduct. It is Valentine’s Day, remember romance?
When affections are directed at someone who does not share the feeling, the object of the affection could feel put upon, uncomfortable, or even worse, sexually harassed! And if the person presenting the “friendly valentine” is a supervisor, then the unwilling recipient could feel obligated to reciprocate in order not to offend the person who evaluates her work and determines her raises.
What about the co-workers of the person who receives that special box of chocolates or roses? Those people see their supervisor showing valentine’s favoritism towards their co-worker, may suddenly believe he is treating her better than he is treating them. She will get the better assignments, the “plum” positions, and a higher raise. She is the manager’s “love interest,” his paramour, which makes the other employees feel uncomfortable and mistreated. Claims can be filed by both the unreceptive “love interest,” as well as the uncomfortable co-workers. It is a “lose-lose” situation for the employer and the Romeo supervisor.
What can be equally as uncomfortable is a situation where there is reciprocity of affection. Whether amongst co-workers or managers, outward displays of affection in the workplace, on Valentines Day or not, can make others in the workforce feel uncomfortable. Employees may not like watching people hugging at work, awkward that they may be next to be hugged (or that they need to allow themselves to be hugged to be accepted.) Employees may draw the conclusion that the way one “gets ahead” in the company is by becoming romantically involved with a supervisor. Employees may get nauseous hearing too many “honey, baby, sweetie” remarks at work.
Then, what happens if the once-consensual relationship sours? What was once welcome behavior by both people suddenly becomes unwelcome by one of them. The affectionate remarks, cards, gifts, and “love taps” suddenly is offensive, and considered to be harassing by the former love interest. Many companies have even sought legal counsel to create “love contracts,” where the participants in the consensual relationship acknowledge that the relationship exists, that it is consensual, and that nothing that happens between the two love birds can be considered harassment. That is, of course, until one of the love birds flies from the relationship and lets their employer know that the “love contract” is no longer in effect. Not only can this disrupt the relationship between the individuals involved, it can also disrupt operations. From office gossip to arranging for quickie job transfers, the “break up” can dominate a once-productive workplace.
The best way for employers to protect themselves and their employees from uncomfortable and unwelcome activity, both on Valentine’s Day and throughout the year, is by making sure that all employees are trained about sexual harassment, how to respond, and how to complain. In some places (like California), this training is mandated by law for many employers. Even though employers cannot control how their employees interact, training ensures that they have done what they can to educate their employees.
Maybe employers should pick Valentine’s Day to do sexual harassment training? Long-stemmed chocolate roses for everyone!
If you would like to find out more about sexual harassment issues, check out my podcast at http://employerhelpcast.blip.tv/file/270431/. Also, all employers should (and all employers with 50 or more employees MUST) conduct sexual harassment training. To find out more about employers' sexual harassment training obligations, check out http://employerhelpcast.blip.tv/file/337812/
Happy Valentine's Day
Helene
Thursday, January 24, 2008
New California Employer Case Regarding Compassionate Use of Marijuana in the Workplace
Hello Everyone!
Well, the California Supreme Court just today ruled that an employer is not obligated to accommodate an employee engaged in the compassionate use of marijuana. At issue in Ross v. RagingWire was whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana.
On January 24, 2008, the California Supreme Court affirmed the decisions of the lower courts that dismissed Ross’s claim, and affirmed judgment in favor of RagingWire. Ross v. RagingWire Telecommunications, Inc. (Cal. Supreme Court 1/24/08).
Ross applied for work as an information technology professional with RagingWire. As part of the hiring process, RagingWire requires all employees to undergo a pre-employment drug test. Ross agreed to accept an employment offer with RagingWire, which was contingent upon him passing the mandatory drug test. He did so even though he was using marijuana under California’s Compassionate Use Act of 1996 to alleviate chronic back pain. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days on the job.
The trial court dismissed Ross’ complaint, and the California Court of Appeal affirmed that dismissal.
Ross set forth two arguments. First, he argued that RagingWire’s refusal to accommodate his compassionate use of marijuana was tantamount to disability discrimination under the California Fair Employment and Housing Act. In rejecting this argument, the Court held that the FEHA does not require employers to accommodate the use of illegal drugs, and that marijuana is an illegal drug under federal law. The California Supreme Court noted that “Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug.” However, the Court noted that it does not do so. Instead, the Court explained that what happened when the Compassionate Use Act was enacted was that it exempted medical users of marijuana and their primary care givers from criminal liability under two specifically designated state statutes. Indeed, the Court explained “[N]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”
Second, Ross asserted, based upon RagingWire’s refusal to accommodate his use of marijuana, and that the termination of his employment was wrongful, in violation of public policy. The Court disagreed, again asserting that the Compassionate Use Act does not speak to employment law, and therefore does not articulate a public policy concerning marijuana use in the employment context.
Drug testing of employment applicants has become commonplace. While California law does permit such testing, there are certain requirements that employers must meet in order to comply with the law. Indeed, California’s Constitution contains an express right to privacy, which often comes into play when evaluating drug testing policies and procedures in the employment setting.
If you are interested in learning more about drug testing in the workplace, check out my podcast on this topic, which you can find at http://employerhelpcast.blip.tv/file/286718/
What do you think of this case? Let me know!
Well, the California Supreme Court just today ruled that an employer is not obligated to accommodate an employee engaged in the compassionate use of marijuana. At issue in Ross v. RagingWire was whether an employer must retain as an employee an individual who fails a properly-administered drug test due to the compassionate use of medical marijuana.
On January 24, 2008, the California Supreme Court affirmed the decisions of the lower courts that dismissed Ross’s claim, and affirmed judgment in favor of RagingWire. Ross v. RagingWire Telecommunications, Inc. (Cal. Supreme Court 1/24/08).
Ross applied for work as an information technology professional with RagingWire. As part of the hiring process, RagingWire requires all employees to undergo a pre-employment drug test. Ross agreed to accept an employment offer with RagingWire, which was contingent upon him passing the mandatory drug test. He did so even though he was using marijuana under California’s Compassionate Use Act of 1996 to alleviate chronic back pain. When his drug test came back positive for marijuana metabolites, Ross’ employment was terminated after eight days on the job.
The trial court dismissed Ross’ complaint, and the California Court of Appeal affirmed that dismissal.
Ross set forth two arguments. First, he argued that RagingWire’s refusal to accommodate his compassionate use of marijuana was tantamount to disability discrimination under the California Fair Employment and Housing Act. In rejecting this argument, the Court held that the FEHA does not require employers to accommodate the use of illegal drugs, and that marijuana is an illegal drug under federal law. The California Supreme Court noted that “Plaintiff’s position might have merit if the Compassionate Use Act gave marijuana the same status as any legal prescription drug.” However, the Court noted that it does not do so. Instead, the Court explained that what happened when the Compassionate Use Act was enacted was that it exempted medical users of marijuana and their primary care givers from criminal liability under two specifically designated state statutes. Indeed, the Court explained “[N]othing in the text or history of the Compassionate Use Act suggests the voters intended the measure to address the respective rights and obligations of employers and employees.”
Second, Ross asserted, based upon RagingWire’s refusal to accommodate his use of marijuana, and that the termination of his employment was wrongful, in violation of public policy. The Court disagreed, again asserting that the Compassionate Use Act does not speak to employment law, and therefore does not articulate a public policy concerning marijuana use in the employment context.
Drug testing of employment applicants has become commonplace. While California law does permit such testing, there are certain requirements that employers must meet in order to comply with the law. Indeed, California’s Constitution contains an express right to privacy, which often comes into play when evaluating drug testing policies and procedures in the employment setting.
If you are interested in learning more about drug testing in the workplace, check out my podcast on this topic, which you can find at http://employerhelpcast.blip.tv/file/286718/
What do you think of this case? Let me know!
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