Thursday 29 November 2012

Floral Crown



 Lovelies,


Free People shirt, Sundance Belt, True Religion Jeans, Assorted Bracelets.


Paper Flower Crown purchased at Point Reyes Station, Minnetonka Boots.


Forever 21 Necklace


First of all, thanks to Amanda Glazer for photographing these GORGEOUS photos. :)

I've never been one to embrace the quintessential 'california hipster' look...that is, until I got to Point Reyes. The scenery surrounding our bed and breakfast, The Druids Inn, quickly harnessed my inner hipster (If I get a negative response for using the word hipster, forgive me. I'm only trying to describe the style ;) ). I love the eccentric look of this outfit in that there's so much going on at once, yet it all seems to pull together. For instance, the assortment of bracelets compliment the crocheted waffle knit Free People shirt. Side note- This shirt IS SO COMFORTABLE. I spend around 90% of my time in school playing with the lace holes on the sleeves. Productive use of time? Yes.

Amanda and I bought the crown at a small garden store at Point Reyes Station the afternoon we arrived. The item itself is a bit outrageous ( I definitely won't wear it to school....ever...), but I do think it adds to the whimsy of the outfit. On a side note, if you ever visit Point Reyes, you simply must go to Point Reyes Station. Although the town is a mere square block, if that, it houses a variety of boutiques and restaurants. Among my favorites are the Bovine Bakery, Stellina (Italian food, try their ice cream sandwiches), Flower Power, Zuma and Vita Collage. 

XOXO,

Em



Seashore

Lovelies,



Bracelets (from left to right)- Bought in France, Recycled newspaper bracelet from Africa, Small Jewelry Boutique, Gap.


Gap Sweater, Abercrombie Jeans, Urban Outfitters Loop Scarf, Argentinean Leather Bag.



Sperry Top Siders



Over Thanksgiving break, I traveled to Point Reyes (off the coast of San Francisco) with my friend Amanda and stayed in a small B&B off the coast, a few miles away from the shore. Needless to say, we have a fantastic time. :) Point Reyes has been part of my childhood ever since I was 4 months old, when my dad first lowered me to touch the Pacific. Luckily, he didn't drop me in the water (thank goodness). Point Reyes is known for it's cold beaches, small artsy towns such as Point Reyes station and miles of seashore. My favorite sight would have to be the lighthouse, located on the tip of the coast. The accent colors inspired my outfit, an eclectic mix of patterns and textures.

I rediscovered my sperry top siders hiding in the back of my closet. I missed them, despite how worn they are. :)

XOXO,

Em


Saturday 24 November 2012

IRS 2013 Standard Mileage Rates

The IRS has increased the standard mileage rate for business expenses to 56.5 cents per mile from its current rate of 55.5 cents.  The change will be effective January 1, 2013.  The other mileage reimbursement rates will be

- 24 cents per mile driven for medical or moving purposes
- 14 cents per mile driven in service of charitable organizations

The IRS announcement is here.

Tuesday 20 November 2012

Ladylike

Lovelies,



Forever 21 Dress, J. Crew necklace, Boutique 9 heels, Umbrella from the Mark Hotel in NYC.

I was out shopping with my friend Rachel today and spotted this dress in Forever 21. After some contemplation, it ended up coming home with me in a bright yellow shopping bag. After bringing it home, I realized how classy and elegant the line of the dress looks, especially the chest area. The sleeves are my absolute favorite, as it reminds me of Alice's dress (from Alice in Wonderland) and a pink dress that appeared on the Louis Vuitton runway several years ago. The rayon fabric is pleasantly hefty as well. Overall- good buy. ;)

As you can tell by the photos, winter has practically hit California in a matter of days. Personally, I'm a huge fan of the winter season... partly due to the fact that I have a HUGE obsession with pullover sweaters. Therefore, you can say that I heavily invested in the quite popular collar+pullover trend. >:) If you're looking for an excellent selection of pullover sweaters, I would suggest Madewell and American Apparel. In the past couple weeks, AA has significantly grown on me.... I especially like their chiffon pieces, like their camisoles and skirts. If you're still not satisfied with their selection of sweaters (kind of impossible), try Mango. Although quite popular and common in most of the Euro nations, teens from the US have yet to pick up on the brand. I'm also really into the colour of oxblood right now (don't call me crazy, it's an actual colour!), as well as studding and velvet. Unfortunately, studs aren't necessarily my 'style', but I've managed to incorporate a bit of studding into my wardrobe (Thank you, Zara).

On a side note, if you haven't watched the Spring/Summer RTW/Cruise Chanel show yet, PLEASE DO SO. I need to discuss Karl's reinvention of the hula hoop with someone as soon as possible. ;)

XOXO,

Em

Do You Know Minimum Pay in San Jose?

"LA is a great big freeway. Put a hundr"...oh, is this on?  Oops.

San Jose's voters approved a $10.00 minimum wage, indexed to inflation beginning in 2014. (The California state minimum wage is $8.00.)  San Jose joins San Francisco as the second city to pass its own city wide minimum wage.

The new, 6-page ordinance has a bunch of additional provisions in it.  Payroll records must be kept for four years.  There is a new poster required.  Every employer must provide new employees with the employer's name and address in writing.  The anti-retaliation provision says that any adverse action taken within 90 days of an employee's protected activity related to the minimum wage is presumed to be retaliation.  Oh, and there is a penalty of $50 per employee per pay period for non-compliance.  The ordinance allows for government enforcement, and also creates a private right of action for violations as well.

The new wage is effective 90 days from when its November election is certified.  Our friends at the Cal Chamber say that the new wage will take effect in March 2013 or so.

Here is the ordinance.

Thanks for the tip, Cal Chamber. Happy Thanksgiving everyone.  If you know the owner of a small business in San Jose, you may wish to let him or her know about the new ordinance before he or she is litigated, fined, etc. out of business.

DGV





Friday 9 November 2012

Court of Appeal: No Dress Code Class Action




Wet Seal is a retailer.   Here are various dress code policies the Company maintained for store employees:

“**Store Employees:

“The Wet Seal, Inc. store employees represent our Company and are required to dress in accordance with the current Company Dress Code guidelines. All employees are required to dress in a manner that is both respectful of our Customers and consistent with the current fashion attire that is reflected in the stores.

“The current Field Dress Code Guidelines can be found in the Store Operations Policies & Procedures Manual. Inappropriate dress will not be tolerated. Any violations of this policy may result in a disciplinary action up to and including termination. . . .”
***

“Wet Seal Employees represent Wet Seal to our Customers. Our Employees must exemplify the fashionable image we want to portray to our Customer. The Employee discount is a benefit that is offered to Employees to purchase and wear current store fashion merchandise. Employees are encouraged to wear Wet Seal merchandise at all times. It is essential that the Employees reflect Wet Seal style during working hours.*

“. . .

“*If an Employee does not have Wet Seal merchandise the Employee should wear clothing consistent with Wet Seal’s brand.”

***

“The Wet Seal and Arden B store Employees represent our Company and are required to dress in accordance with the current Company Dress Code Guidelines. All Employees are required to dress in a manner that is both respectful of our Customers and consistent with the current fashion style that is reflected in the stores. Employees are not required to wear the Company’s clothing.

“Those employees interested in purchasing company merchandise are eligible for an employee discount. . . . Employees are invited to wear Wet Seal or Arden B clothing during work hours, but are not required to do so.”

***

***“Wet Seal team members represent Wet Seal to ‘OUR GIRL.’ Our team members must exemplify the fashionable image we want to portray to ‘OUR GIRL.’ The employee discount is a benefit offered to employees to encourage them to purchase and wear current store fashion. Team members are required to dress in a manner that is both respectful of ‘OUR GIRL’ and consistent with the current fashion trends that are reflected in our stores.”


***

“As a Fashionista on the sales floor, you must represent the Arden B brand, current fashion trends and current color stories presented on the sales floor. [¶] Team members are required to dress in a manner that is both respectful to our customer, professional and consistent with the current fashion trends that are reflected in our stores.” ***

The plaintiffs claimed that the above policies constituted a "uniform," or that the company was mandating that employees buy the company's product, such that the employees should be reimbursed for dressing in the Company's clothing. 

None of this sounds like a uniform / mandatory purchase policy to me.  But what do I  know, I'm just a defense lawyer.   That said,  the plaintiffs in a class action lawsuit alleged "they were told by their managers that the 'Company' required employees to dress in Wet Seal merchandise 'at all times.'" And, "when she was hired her manager told her that the Company required all store employees to dress in Arden B clothing and that the dress code was 'all Wet Seal clothing and accessories.'"



The trial court, though, denied class certification, in part because the above policies did not create a blanket requirement to buy the company's product, or a "uniform," i.e., clothes of a distinctive design or color, and did not mandate purchase of the company's product.

The court of appeal agreed:

First, the written policies do not state that employees were “required” to purchase Wet Seal clothing as a condition of employment. Thus, answering the “central” liability question whether Wet Seal employees were required to wear Wet Seal clothing as a condition of employment or otherwise compelled to purchase Wet Seal merchandise would require several individualized inquiries including “(1) what, if anything, the employee was told by his or her store manager regarding purchasing Wet Seal clothing or wearing Wet Seal clothing to work; (2) if such a discussion occurred, when and with whom the employee had that discussion; (3) how the employee interpreted that discussion; (4) whether the employee’s interpretation was reasonable; and (5) whether the employee then purchased Wet Seal clothing to wear to work pursuant to that discussion.”

Second, the written policies do not “explain with any specificity” what employees are required to wear, but instead use broad and vague standards like requiring employees to dress in a manner “ ‘consistent with the current fashion style that is reflected in the stores’ . . . .” Thus, for example, determining whether the attire allegedly required by Wet Seal constitutes a uniform within the meaning of Wage Order 7 would require several individualized inquiries, including “(1) what was the current fashion style reflected in each store at a given period of time; (2) whether that style was of a distinctive color or design; (3) how each store manager interpreted the phrase ‘Wet Seal style’ or ‘consistent with the current fashion style that is reflected in the stores’; (3) whether each manager required the employees to wear clothing of a distinctive design or color; and (4) whether each manager required the employees to wear clothing that is usual or generally usable in the occupation.”

Third, because the written policy does not describe what an employee is supposedly required to wear, the court found that individualized inquiries would be necessary in order to determine whether any given purchase by an employee constituted a “necessary expenditure” within the meaning of section 2802. For example, individualized inquiries would be necessary to address “(1) what, if anything, the manager told the employee regarding the required wardrobe; (2) assuming the employee purchased certain wardrobe items to wear to work, where the employee purchased those items; and (3) the particular wardrobe items actually purchased.”

The trial court also found that the evidence submitted by both sides demonstrates that the plaintiffs’ theory of liability regarding its dress code claim is not “reasonably susceptible to common proof but rather would require individualized inquiries into a myriad of circumstances depending on the particular direction of individual store managers and supervisors at numerous stores in widely varying locations and over the course of many years.” In reaching this conclusion, the court expressly found that the plaintiffs’ evidence, particularly the 55 employee declarations, demonstrate that “the common written dress code policy did not lead to common dress code practices.”


So, two things - a mushy dress code policy that suggests purchasing company clothing, but does not require it, and that does not mandate a particular color or article of clothing, will not support a uniform / mandatory purchase lawsuit on a class wide basis.  Second, local managers' local policies can still result in significant liability on an individual employee basis, even if class certification is not approved.  So, as always, the devil is in the details.

The case is Morgan v. Wet Seal and the opinion is here. 

Tuesday 6 November 2012

San Francisco Minimum Wage to $10.55 effective January 1, 2013

The San Francisco Office of Labor Standards Enforcement announced that the San Francisco minimum wage will increase to $10.55 per hour, effective January 1, 2013.  The statewide minimum is $8.00 per hour.

This hourly rate, up from $10.24 in 2012, is indexed to inflation.  There will be a new minimum wage poster too, natch.  Find it, along with other information about the SF Minimum Wage Ordinance, here.


Friday 2 November 2012

2013 New California Employment Laws

Our friends at the California Chamber of Commerce sent out this list of new California employment laws taking effect in 2013 (here).  These new statutes are only part of the story though, as the California courts are busy issuing rulings that shape California employment laws.   Let's not forget the federal agencies and courts doing their part as well.

Where will you learn about the most important federal and state rulings and laws changing workplace law in 2013?  That's right, at our annual legal update.  We are offering a live session and a webinar.  Get information here

Greg

Thursday 1 November 2012

California Supreme Court De-Publishes Administrative Exemption Case


I posted about the Court of Appeal's opinion in Harris v. Superior Court here.  That decision, on remand from the California Supreme Court, would have severely limited the administrative exemption.  Fortunately, the California Supreme Court has now de-published the decision (here), so it is no longer good law.  The bad news is that the Supreme Court's guidance on the administrative exemption is rather vague and remains open to lower courts' interpretations.


NLRB: Lawful "At Will" Policies

Here's a long post on employment at will and the NLRB.  But it's worth it!

The NLRB announced on October 31, 2012, that the Office of General Counsel issued advice memoranda regarding "at will" employment policies.  Both employed the same analysis. The General Counsel in both cases determined that the employers' at will language did not violate the NLRA.

The first memo (here) addressed the at-will policy in a Mimi's Cafe's handbook, taken from a restaurant in Arizona.  The policy language was:


AT-WILL EMPLOYMENT

The relationship between you and Mimi's Cafe is referred to as  "employment at will." This means that your employment can be  terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.

The second memo (here) addressed the at will disclaimer in the handbook of Rocha Transportation, a Modesto, California employer.   The policy at issue read:


Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.


The General Counsel analyzed whether the above "bolded" language in the respective handbooks was unlawful under the NLRA.  Why?  Because the NLRA protects employees rights to organize or engage in concerted activities for their mutual aid and protection.  These are called "Section 7 rights." Even neutral policies that infringe on those rights can be held illegal.

The General Counsel analyzed the policies in a similar way.  This language is quoted from the Rocha memorandum:

An employer violates Section 8(a)(1) of the Act through the maintenance of a work rule or policy if the rule would "reasonably tend to chill employees in the exercise of their Section 7 rights." The Board has developed a two-step inquiry to determine if a work rule would have such an effect. First, a rule is unlawful if it explicitly restricts Section 7 activities. Second, if the rule does not explicitly restrict protected activities, it will nonetheless be found to violate the Act upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights . . .
(footnotes omitted).

The General Counsel decided the policies did not explicitly restrict Section 7 rights. Neither business issued the policies in response to union activity, and there was no evidence that the policy was applied to restrict Section 7 rights.  

That left the issue of whether employees "would reasonably construe" the at will policies to prohibit Section 7 activity.  The General Counsel decided this policy language would not: 


The provision does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way. Instead, the provision simply prohibits the Employer's own representatives from entering into employment agreements that provide for other than at-will employment.10 Indeed, the provision explicitly permits the Employer's president to enter into written employment agreements that modify the employment at-will relationship, and thus encompasses
the possibility of a potential modification of the at-will relationship through a collective -bargaining agreement that is ratified by the Company president. Accordingly, we conclude that employees would not reasonably construe this provision to restrict their Section 7 right to select a collective -bargaining representative and bargain collectively for a contract.

Here is the General Counsel's analysis of the Mimi's Cafe policy:


We conclude that the contested handbook provision would not reasonably be interpreted to restrict an employee's Section 7 right to engage in concerted attempts to change his or her employment at-will status. First, the provision does not require employees to refrain from seeking to change their at-will status or to agree that their at-will status cannot be changed in any way. Instead, the provision  simply highlights the Employer's policy that its own representatives are not authorized to modify an employee's at-will status. Moreover, the clear meaning of the provision at issue is to reinforce the Employer's unambiguously- stated purpose of its at-will policy: it explicitly states 'Jnjothing contained in this handbook creates an express or implied contract of employment." It is commonplace for employers to rely on policy provisions such as those at issue here as a defense against potential tolegal actions by employees asserting that the employee handbook creates an enforceable employment contract.10 Accordingly, we conclude that employees would not reasonably construe this provision to restrict their Section 7 right to select a collective -bargaining representative and bargain collectively for a contract when considered in context.11 The Region should therefore dismiss, absent withdrawal, the Charging Party's allegation that the Employer's employment at-will policy violates Section 8(a)(1).
(footnotes and citations omitted). 

You may have read that the NLRB was waging war against at will employment policies.  In fact, an administrative law judge previously held that an acknowledgment of employment at will --- "I further agree that the at-will employment relationship cannot be amended, modified or altered in any way." -- was unlawful.  However, the General Counsel noted that the parties settled before the Board could review the ALJ's decision.  The General Counsel stated the law in this area is "unsettled" and that the NLRB offices should submit all cases for review before proceeding.

So, "at will" gets a bit of a reprieve.  It may be wise to have your policy language reviewed for compliance with the NLRA, at least once this area of the law is settled.

DGV