Monday 30 August 2010

California Court of Appeal Invalidates Anti-Injunction Law

I am still a bit behind on blogging because of last month's trial. Here's one that came down in the middle of the trial.

As the courts in this case noted, California law ma[d]e it nearly impossible to get an injunction against a union picketing in front of a private business. Labor Code Section 1138.1 and Code of Civil Procedure Section 527.3 impose significant procedural hurdles and substantive limitations on courts to issue injunctions against "peaceful picketing." These protections were extended to private property, such as outside the front entrance of retail stores.

The court first held that the entrance of a FoodsCo, including the sidewalk and "apron" were private property, not a public forum. The court distinguished cases that held enclosed shopping malls were public areas. Because the FoodsCo entrance and surrounds were private, the court noted, the company could prohibit speech without violating the picketers' First Amendment or California constitutional rights.

The court then examined whether the anti-injunction laws violated FoodsCo's rights. FoodsCo sought an injunction againt a union's trespass. The union had picketed from the opening of the store until the present, five days per week, 8 hours per day. The complaint was that FoodsCo was operating non-union.

The trial court denied the injunction because FoodsCo had not adequately proved its entitlement to an injunction under the Labor Code's special provision, Section 11381.1. The business owner must prove, among other things, that the police are unwilling or unable to provide assistance, and other grounds that do not apply to the issuance of trespass injunctions generally.
Here is the money quote:

Accordingly, as applied in this case, the Moscone Act violates the First and Fourteenth Amendments of the United States Constitution. The Act affords preferential treatment to speech concerning labor disputes over speech about other issues. It declares that labor protests on private property are legal, even though a similar protest concerning a different issue would constitute trespassing. And it denies the property owner involved in a protest over a labor dispute access to the equity jurisdiction of the courts even though it does not deny such access if the protest does not involve a labor dispute.

So, unless the Legislature acts somehow to create a constitutional anti-injunction law, the courts will have to enforce anti-trespass injunctions against unions on the same basis as it does so outside the union picketing context.

The case is Ralphs Grocery Company v. UFCW, Local 9 and the opinion is here.

Sunday 29 August 2010

Ninth Circuit: Fired Harassers Lose Sex Discrimination Claim

The plaintiffs were males who worked for Executive Jet. They were fired after an investigation revealed they engaged in certain inappropriate conduct that violated the Company's anti-harassment policy. The female who complained filed a charge with the EEOC, which found cause to believe a violation of Title VII occurred. The male employees claimed that the female was a willing participant and engaged in the same conduct of which she complained.

The males sued for, among other things, sex discrimination. They claimed that Executive Jet fired male employees for sex-based conduct, but not females who engaged in similar conduct.

The court engaged in detailed analysis regarding whether the male and female employees were "similarly situated," but found that they were not. The males never complained about harassment. The female did. Although the presence of a complaint by one group is not per se enough to render employees non-similar, that was enough to render their situations different in this case.

The court's analysis also included whether the EEOC's probable cause finding should be admitted as evidence that the males' conduct warranted action taken against them. The court of appeal reaffirmed its rule that EEOC probable cause determinations may be admissible in some circumstances, particularly in summary judgment proceedings and bench trials, where there is little chance of prejudice.

The case is Hawn v. Executive Jet and the opinion is here.

Ninth Circuit: Triable Issue on Accommodation of Hearing Impaired

The EEOC brought suit against UPS Supply Chain Solutions for failing to accommodate a hearing impaired employee. The employee, Mauricio Centeno, was deaf since birth and American Sign Language was his primary language.

He was able to do his job in accounting without a sign language interpreter. But he asked for an interpreter at company meetings. The employer offered post-meeting recaps in writing and contemporaneous notes during the meetings. He also wanted an interpreter's help with respect to certain job training and to understand the company's sexual harassment policy.

The district court granted UPS' motion for summary judgment because, it found, UPS had engaged in an interactive process with Centeno and had provided accommodations that were sufficient to enable Centeno to understand what transpired at meetings, etc.

But the court of appeals reversed. The appellate court held it was a genuine dispute of fact regarding whether the accommodations were effective. The court decided that agendas, contemporaneous notes, and summaries in English were not necessarily sufficient substitutes for a sign language interpreter. The court was especially concerned because Centeno was not proficient at written English, but the court also said it would be a triable issue even if Centeno were fluent in English.

Similarly, the court held that UPS may have failed to accommodate Centeno by delaying Excel training. Centeno claimed he could not read the online training program and required an interpreter. UPS ultimately provided him one, but two years later.

Centeno also complained he did not understand the company's anti-harassment policy and training materials because he was not given a sign language interpreter to read them. The court held that Centeno's professed lack of comprehension was sufficient to put UPS on notice that an accommodation was necessary.

This case raises the bar for employers who employ hearing impaired employees. Even when the hearing impaired can perform essential job functions without interpreters, they may be necessary so the employee can enjoy the "benefits and privileges" of employment.

The opinion is EEOC v. UPS Supply Chain Solutions and the opinion is here.

Saturday 21 August 2010

Aliens, Radio Signals, Warp Drive, and Dead Heads: SETI con asks "Are we alone?"

Anyone who’s been reading my blog will know that I’m a big fan of science fiction, and maybe even that I’m a big fan of scientific discovery, which is why I was excited to attend the first ever SETIcon in Santa Clara last weekend.

Although I had read a lot about SETI in the past, my main knowledge of the guys running SETI came from watching the movie Contact, starring Jodie Foster and based on the novel by astronomer Carl Sagan (of “billions and billions” fame).



Those of you who’ve seen the movie will recall Jodie Foster’s radio astronomer character (“Ellie Arroway”) being very upset when the funding for her search for extraterrestrial signals was cut off. In a last ditch effort, after being turned down for funding from everywhere including Hollywood (“Those guys have been making money from aliens forever!”), she ended up getting funding from an eccentric billionaire.

Whether art was imitating life or the other way around, SETI itself used to receive funding from NASA, but this was cut off in the 1990’s. Since then, Microsoft co-founder Paul Allen (yes, whom some would call an eccentric billionaire) donated quite a bit of money to set up the Allen Radio Telescope array so that the search for ET could go on utilizing private funding.

For those of you who don’t know, SETI basically studies radio (and now light) signals from various stars in the night sky, looking for evidence of an “intelligent” signal that could only come from an “intelligent” species that at the very least has mastered radio technology. SETI stands for Search for Extraterrestrial Intelligence, and has been going on in some form or another for almost 50 years.

To date, no confirmed signal has been found, though there have been several “candidate” signals that could never be re-acquired for further study.

The SETI institute is located in Mountain View, CA, which is just down the road from where I live (another benefit of being in Silicon Valley), and I was glad to be able to attend this conference so easily (it was held in Santa Clara). There were attendees from as far away as India and Kuwait, and as close as well, Santa Clara.



A Blending of Science, Science Fiction, and the Grateful Dead??

Since science fiction (in all of its forms) has always been a great way to get the public excited about science (everything from the Alien Attack movies in the 50's to Star Trek in the 60's forward), I was glad to see that this conference was not just about Radio astronomy (which I'm sure is a fascinating subject in and of itself), but included an intelligent blending of scientists and sci-fictionists (for lack of a better term). In my opinion not only did this make the conference more fun, but it also helped to open up our imaginations a bit, something that is necessary because the whole idea of extra-terrestrial intelligence is still speculation.

Despite being the first year of SETIcon, and a relatively small number of attendees, there were some great speakers – all of whom were pretty easy to approach and get to know. Here's a small sampling of SETIcon:


  • Mickey Hart - On Friday night, we were treated to seeing a preview of work from Mickey Hart – yes, that Mickey Hart, the drummer of the Grateful Dead , about the “rhythms of the universe”. It turns out he’s been collaborating with the scientists at the SETI institute working on a “sounds of the universe” DVD/CD. Mickey said he loves “timelines” and he always begins his books with a timeline that starts with “The Big Bang” from 13 billion years ago.
    For years, he’s wondered what this most primordial event of the universe (the Big Bang) might sound like. This DVD showed his on-going attempt to capture the sounds of the universe ("Everything is vibrating, so everything has a sound" - Mickey), and mix them with incredible visual images to make "art". Mickey pointed out that the Hindus and others speak of an original sound and the Greeks refer to the music of the spheres, so this isn't a new undertaking.
    Listening to this was almost like having a mystical experience, and added a bit of needed "right brain" creativity to what has been mostly a "left-brained" search for ET, and as a fan of the mystical, I enjoyed Mickey's presentation quite a bit. There were some deadheads in the audience, and you can bet they were more than a little excited to meet Mickey!

  • Dr. Frank Drake – anyone whose investigated the scientific possibility of for Extra Terrestrial intelligence will know of Frank Drake, who started investigating whether radio signals could be coming from intelligent alien signals some 50 years ago, dubbed Project Ozma. Frank Drake is considered the Father of modern day SETI, and he is the creator the of the well known Drake Equation, which is an equation that tries to estimate the number of intelligent civilizations there may be in our galaxy. Anyone who’s looked up at the night sky, marveling at the number of stars and wondering how there couldn’t be any life out there amongst the billions of points of lights will intuitively understand the Drake equation. Wikipedia even has a section on it: click here .
    Basically if you plug in some assumptions about the number of earth like planets orbiting earth like stars, and how many of these might have life on them, and how many of those are intelligent, and how long those intelligent civilizations might last, you end up wtih an estimate of how many intelligent civilizations we might communicate with our galaxy.

    Of course the big thing that's open about the Drake Equation are the actual factors - which make the resulting number vary widely. Carl Sagan estimated the number to close to 1 million, while Frank Drake himself estimates closer to 10,000. No matter how you slice it though, it's very difficult to make the number come out to "1", which makes it unlikely we are alone! On Saturday night at the conference, we had a banquet honoring Frank’s 80th birthday and 50th anniversary of Project Ozma, which was a fitting way to start the first SETIcon.

  • Dr. Jill Tartar. Jill is the director of SETI research at the SETI institute, and has a host of honors and recognition as a scientist and educator. Many say she was the inspiration for Jodie Foster’s character in the movie Contact, including being the point person for “pitching” for SETI funding after NASA discontinued it’s funding.

  • Tim Russ and John Billingsley Star Trek fans will recognize these names. Tim Russ played the Vulcan Tuvok on the Star Trek: Voyager series, and John played Dr. Flox in Star Trek: Enterprise series. Tim is an amateur astronomer and really committed to both astronomy and the SETI cause, and it was great to hear him on several panels. Although I couldn’t go to all the sessions, I think that he played out one of the most thought-provoking scenarios about interstellar travel (More on this later).


Of course there were many other speakers, including Robert J. Sawyer, an award winning science fiction author (who was the author of the novel that the TV series Flash Forward was based on), Andre Bormanis (who was the science advisor for several Star Trek series), Seth Shostak, SETI’s senior astronomer, who also does their podcast “Are we alone?” each week, Kevin Grazier (science adviser for Battlestar Galactica, who finally answered the question, How does Galactica’s FTL engines work?), Robyn Asmiov (Isaac Asimov’s daughter), and many real scientists - astronomers, astrophysicists and astro-biologists.

The speakers included, on a more personal note, an old mentor of mine from MIT, Greg Papodopolous, who left MIT many years ago to become the Chief Techonology Officer at Sun Microsystems. I did a research project with Greg on parallel computing during my undergrad days at MIT, and it was great fun to see him again and learn that he'd been involved with SETI also.

So, Did we Answer the Question? Are We Alone?

OK , so by now you’ve probably guessed that attending this conference was fun (it definitely was!), and from the speaker list, you probably guessed that I got to mix with a lot of interesting personalities (I did, and am still in touch with some of them!).

But, did I learn anything? More importantly, did it answer the burning question: Are we alone?

Yes and No.

Yes I did learn something, and no it didn’t answer the question of whether we are alone or not (you’d probably have heard about it on CNN if the conference had gone that far!)

But the conference raised a number of related questions which are equally as interesting, and easier to discuss, which the panelists did enthusiastically. On this front, I think mixing science fiction authors and actors with professors and PhD’s was a very smart move, since these questions have no simple answers, and are still to a large part, a matter of speculation.

Here they are, in my humble opinion, five of the most interesting questions raised at SETICON 2010 (other than “Are we alone”, of course), in no particular order:

  1. Should we be sending out signals to extra terrestrial societies? If so, what should we send? And Who speaks for the Earth?
    • This question came up again and again. Of course, SETI’s official charter is to look for signals, not to broadcast them. But there have been many broadcasts from Earth (including our TV signals starting from the 1940’s and 1950’s, as well as broadcast by Frank Drake from Arecibo, the big radio telescope in Peurto Rico).

      As eminent a scientist as Stephen Hawking has suggested that if we broadcast a signal, it could be picked up by a much more advanced civilization than ourselves, and …well you might see something like Independence Day (remember that movie with Will Smith)?
      Actually, joking aside, this a pretty serious concern, as many speakers pointed out that a less technologically advanced civilization has rarely withstood contact with a more technologically advanced civilization (case in point: the Native American population after contact with Europeans). Given my interest in both science fiction and native american history, I find this topic more than a little fascinating … I actually started writing a novel once about what might happen if a more technologically advanced alien civilization arrived here on Earth -it's called Synchronized - and this conference has led me to believe it's worth completing.


  2. Will we ever develop warp drive and be able to travel to the stars?
    • The scientists discussed this at length along with the science fiction authors and consultants to TV shows like Battlestar Galactica and Star Trek. From the point of view of the scientists, this would require traveling faster than the speed of light, something that is not permitted by Einstein’s theories of relatively. Lots of interesting ideas were discussed for “folding space” which wouldn’t violate Einstein's general theory of relativity, but the answer was that it would take so much energy to do this as to be practically impossible. When many members of the audience objected, the scientist pointed out that they weren't saying this to be negative. In fact, most scientists would love to figure out a way to get around Einstein's laws (they'd land a nobel prize if they could), but as far as we know, travelling to the stars at faster than light speeds would violate the known laws of physics.

      I actually thought the best answer to this question came from Tim Russ, of Star Trek: Voyager fame, and the only member of the panel who had actually flown faster than light (at least in a TV series). He said to imagine that we were sitting at a similar symposium at the time of Columbus, and the question we were being asked wasn’t about traveling over the water to the other side of the earth, but of traveling to the moon. Using the technology of the time, wind power and sails, it would seem “impossible” to ever get to the moon, even if all of the wind power on earth was utilized in the effort. So Tim was suggesting that there may be some kind of breakthrough that we don’t know about yet, which will let us travel to the stars – his bet was that it might have something to do with quantum mechanics and parllel realities. The scientists bet was that it wouldn't happen.

      I agree whole-headertedly with Tim that most scientists of today, just like the scientists of every other era, are a bit short-sighted and only looking at a limited perception of reality - that which has been proven in the past. I'm reminded of the head of the US patent office who resigned in the early 1900's because "everything that could ever be invented had already been invented"! Boy, was he wrong! Someday, there will probably be some unexpected new discovery or breakthrough that may make it possible to travel to the stars.


  3. If Aliens exist, where are they, why aren’t they here?
    • On an not-unrelated note, there was the more serious issue that if travel across stars will ever be possible, then we should assume some technologically advanced races (say a million years more advanced than we are) would have mastered that technology already. So, why haven't they visited us?

      This is a pretty controversial topic, because it relates to UFO theories and sightings, which pretty much every speaker on the panel dismissed as "lacking credibility".

      The only answer that made sense to me was that Earth is in a relatively uninteresting corner of the galaxy, and given the millions of likely planets out there, it’s unlikely that an intelligent species would visit here without some concrete reason to (other than to abduct us and do experiments on us). Since we've only mastered radio signals in the last 100 years, this means that any star that is more than 100 light years away wouldn’t have received any transmission from us, making Earth an unlikely place that someone from another part of the galaxy would want to visit. This seemed logical answer.


  4. Is Radio Astronomy the right way to look for Alien civilizations? How will we communicate with an alien civilization?

    • We are taking our current technology (radio signals) and using that as the basis under which a more advanced civilization might be broadcasting to us. This of course, gets at two core questions – will aliens communicate like we do, and is SETI looking in the right place?

      In my personal opinion, this is an interesting question and there’s no good way to answer it, and it probably deserves a much more investigation than was done at the conference. The best answer, given by senior Astronomer Seth Shostak, was that this is the best we can do right now, and any advanced civilization might realize that less advanced civilizations “come of age” when they master radio technology or wireless communication. Just as columbus didn't wait for better ships to be built, we can't wait for better radio telescopes to start our quest.



  5. Is SETI a worthwhile endeavor, should we continue to fund it?
    • Underlying many of the other questions, this was the pink elephant in the room. If it's such a difficult task to scan the whole night sky, and aliens might not even be communicating in ways we understand, is SETI worthwhile to do? Well, actually, as I mentioned, the government is no longer funding SETI proper (i.e. the search for radio signals, though NASA does fund astrobiology research at the SETI institute).

      100% of funding for SETI proper comes from private donations and tickets for events like SETI con. Personally, I think SETI has the ability to light up the imagination of the young, to make them more interested in math and science in a way that few other “official activities of our day” do. Whether an alien signal is found or not, it makes sense to have a program like SETI. Of course, if an alien signal IS FOUND, then this would probably be the biggest discovery in the history of the human race ... so I think i can speak for everyone at the conference who thought that we should all help fund SETI to a certain extent, since it concerns us all - not a single state or profession or nation. So, let's all chip in - at the very least if you're interested in the answer to these questions, be sure to attend SETICON 2011!


As you can see, answering each of these questions is not simple; I think I could easily write a separate blog post (or even a chapter in a book) on each of these questions. The panelists (and attendees!) brought up many thought-provoking points and counter-points on each of these and many other topics. (see www.seticon.com ) to see the full program.

In short, I think the conference was not only fun, it was also worthwhile. These kinds of questions force us to think of ourselves as a common species on a common planet, and not as individual fiefdoms known as countries or religions, which is why it’s very important to have something like SETI.

In the meantime, while SETI continues to search the heavens, it was pointed out again and again at the conference that that our TV broadcasts have been in space for more than 50 years already, which means that someone out there (within 50 light years) may have detected our presence already.

Which means that even if there were no signals directed at us in the past, there may very well be something – a signal or who knows what - coming our way in the future… all we have to do is keep our eyes (and ears and telescopes) aimed at the sky!

Wednesday 11 August 2010

Court of Appeal Expands Wrongful Discharge Law

OK, so let's say an employee has a non-compete agreement with a former employer. After Employee is hired by new employer, the former employer sends a "cease and desist" letter to the new employer. The new employer, fearling litigation, fires the employee. Employee sues new employer for wrongful discharge?!

Yep. I know....#@^!%.

In 2003, Silguero began employment with Floor Seal Technology, Inc. as a sales representative. In August 2007, FST threatened Silguero with termination unless she signed a confidentiality agreement. The agreement prohibited her from sales activities for 18 months following either departure or termination. (A Non-compete). FST terminated Silguero's employment in October 2007.

Shortly therafter, Silguero was hired by with Creteguard. But FST contacted Creteguard and requested enforcement of the non-compete.

In November 2007, Creteguard's chief executive officer, Thomas Nucum, did not call me. Instead, he informed Silguero in writing that "although we believe that non-compete clauses are not legally enforceable here in California, [Creteguard] would like to keep the same respect and understanding with colleagues in the same industry." Nice.

Silguero argued the noncompetition agreement enforced by Creteguard was void pursuant to section 16600, that no statutory exception to section 16600 applied, and that Creteguard's enforcement violated public policy.

The Court of Appeal agreed:

The complaint in this case alleges an ―understanding‖ between Creteguard and FST pursuant to which Creteguard would honor FST‘s noncompetition agreement. Creteguard admitted in writing that it entered into this understanding with FST, ―although [Creteguard] believe[d] that non-compete clauses are not legally enforceable here in California,‖ because Creteguard ―would like to keep the same respect and understanding with colleagues in the same industry. This alleged understanding is tantamount to a no-hire agreement.


No hire agreements are illegal too.

This case is Silguero v. Creteguard, Inc. and the opinion is here.

California Supreme Court Bings Google

I think Reid v. Google (opinion here) will be more memorable for its discussion of objections in summary judgment proceedings than for its discussion of the stray remarks doctrine.

I will post my upcoming article here next Monday, which will explain the above gibberish. (Or I'll cheerfully refund your money, and that's a promise!)

Ninth Circuit Thwarts End Run Around California Labor Code

EGL, a Texas transportation company, came up with an idea. Avoid all those pesky California wage and hour laws by making everyone an independent contractor, and inserting a choice of law clause into the agreement.

First, the court had to get by the Texas choice of law clause. The clause said only that the independent contractor agreement would be "interpreted under the law of the State of Texas." The claims, however, were not brought under the agreement, but rather were brought under the California Labor Code. So, this case is a warning to practitioners to draft choice of law clauses expansively. The court did not consider whether the Texas choice of law clause could be enforced in California.

Then, applying California law, the court reversed summary judgment. The court held that there was significant evidence of an employment relationship under California's test for independent contractor status. The court went on at length. So, you can read the opinion in Narayan v. EGL, Inc. et al. here.

Tuesday 10 August 2010

California Supreme Court Holds No Private Right of Action Re: Tip Pooling

Labor Code Section 351 provides that tips belong to the servers who generate them. Tip pooling - employer-mandated sharing of tips among service staff, has been held lawful under that section. But certain tip pooling arrangements, particularly those in which management shares tips, have been held illegal.

In Lu v. Hawaiian Gardens Casino, Inc., a card dealer sued over a tip pooling arrangement, claiming that the employer's policy violated section 351. The lower courts held that Section 351 does not authorize private lawsuits. The Supreme Court stepped in to resolve a split in the courts of appeal. Applying general principles regarding when the Legislature intends to create private causes of action, the Court held there was none authorized under Section 351.
Of course, the plaintiffs can pursue their unfair competition claims, etc. The main disadvantage I can see off the cuff is the absence of a claim for attorney's fees under the Labor Code.

This case does not address whether tip pooling itself is lawful. So, employers should continue to draft tip pooling arrangements in accordance with lower court decisions on the subject, such as Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062, 1067; Etheridge v. Reins Internat. California, Inc. (2009) 172 Cal.App.4th 908, 921-922; Budrow v. Dave & Buster’s of California, Inc. (2009) 171 Cal.App.4th 875, 878-884; and Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal.App.4th 138, 143.

The case is Lu v. Hawaiian Gardens Casino, Inc. and the opinion is here.

Friday 6 August 2010

Trial

Trial in employment cases is as rare as hen's teeth. Most cases settle. With the increasing prevalence of "EPLI" insurance, there is often little appetite for taking a case "all the way" and facing a jury. At least for us defense lawyers, going to trial is unusual.

Trial also is, to say the least, arduous. Sleep is something you get in between preparing for trial, conducting the trial, and preparing for the next day. No matter how much you prepare, there is much to do once the trial begins.

Once you're there, the odds are against you. Plaintiffs win as much as 60% of the time, depending on the type of claim and the court's location. That's another reason cases settle a lot. Let's not forget the time and money the employer has to spend, and victory defined only as a jury's conclusion that the defendant was right.

Don't let anyone tell you different. Winning is special. So, we're proud to let you know about two employment law trials that concluded this week with favorable outcomes.

First, Shaw Valenza alumnus Shane Anderies, now of Anderies and Gomes, won a verdict in style. His case, covered by the media (also rare), resulted not only in a defense verdict, but also a huge award on a cross-claim for defamation. Read about Moreno v. Ostly et al here.

Oh, yeah, and the Shaw Valenza trial team just received a verdict on behalf of our client Signature Properties in a retaliation case, tried in Sacramento Superior Court. The jury was out just 6 hours after a four week, fifteen trial-day, trial. No press coverage so far. The facts of our case were nowhere near as interesting as Shane's. (His involved a paralegal suing a lawyer for sexual harassment and his defamation cross-action). But winning was just as exciting for our client as us as it was for Shane and his.

Thanks to all of you who patiently waited for return calls during July. I will get back to you soon. I promise. I also will be posting on a number of new cases in the coming days. And congratulations again to Shane, Mr. Ostly, and of course Signature Properties.

DGV