Thursday, 22 August 2013

Moments in Bordeaux

Lovelies,

The Fountain in Place des Quinconces, the largest square in Europe. The square was originally built to prevent rebellion in the city, and served as a military area (complete with cannons!) for a few years 
Café at the Grand Hotel de Bordeaux. I spent some time here, as the café was a wonderful place to people-watch on Place de la Comédie.

Caprese Salad with Gazpacho and Arugula (THIS WAS SO GOOD). The cuisine here was light and fresh; food was flavored mostly with sea salt and small amounts of olive oil. There was also a substantial amount of fish served. I decided to photograph this dish, mainly because I loved the presentation and color of the food.

There were lots of flowers planted near Place de la Comédie; this is just one example of some of the beautiful blooms.
More greenery near Le Grand Theatre de Bordeaux, a neo-classical theatre famous for hosting some of Marius Petipa's first ballets. Some of his more famous works include Don Quixote and The Nutcracker. 

Bikes in front of Grand Hotel de Bordeaux. For brave souls, this is another mode of transportation around the city (Personally, I didn't dare try it).

Rue Sainte-Catherine. This crowded street houses some major fashion retailers (i.e Galleries Lafayette and Zara), as well as some small boutiques. Streets that snake off from this main route hold numerous cafés and gelato shops (my personal favorite gelato? Straciatella.)

Street Style on Rue Sainte-Catherine. Patterned shifts and color-blocked dresses with leather sandals and a vintage handbag seemed to be "la mode de choix" this summer.  I especially liked the vintage watch and eclectic mix of bracelets on the girl with the patterned dress, as well as the toussled waves on both girls. Their hairstyle references Madewell's summer campaign, which you can see here. 

A parked Vespa near Place de la Comédie. Due to the narrow streets and crazy drivers, Vespas are the easiest way to get around the city (I didn't try this type of transportation either....)

The Reflection Pool in front of Place de la Bourse. Every so often, the pool of water would give way to a mist (seen above). It was especially beautiful at night, when colors in the sky would tint the mist and remaining water below.
Jaume Plensa's El Almo del Ebro. In the past, this instillation was featured at the Picasso Museum in Antibes, France.  Plensa's past works include Crown Fountain at Millennium Park in Chicago.

Our next stop in the trip was Bordeaux.  I love these photos because they highlight all the different aspects of the French region, as well as the various colors I noticed while staying in the city. I've included captions explaining each photo more in detail, in case you are interested in knowing more about Bordeaux.

XOXO,

Em

Monday, 19 August 2013

Biarritz Beachin'

Lovelies,








I just returned last night from an eighteen day adventure in Europe! I had a wonderful time and feel so lucky to have had the opportunity to immerse myself in different cultures. From visiting the Guggenheim Museum in Bilbao to strolling in Monet's water gardens in Giverny, I documented it all. The next eight posts will cover the culture, food and style (of course) of France and Spain.

Our trip began with a few days in the small yet lively coastal town of Biarritz, France, which is located 20 minutes from the Spanish border. There is definitely a Basque influence present in and amongst the region. Identified by their famous wool berets, the Basques speak an entirely different language from both the Spanish and French. Their interesting cuisine and tradition (i.e. fancy calligraphy) influences surrounding areas in north-central Spain and southwestern France.

The town of Biarritz clearly serves as a vacation spot for many French people, most of whom flock to the destination during their vacation periods in August. In the past, the town served as a hot spot for the rich and famous; both Ernest Hemingway and Coco Chanel spent days lounging on the large stretch of beach, or La Grande Plage, at the base of the town. This area is considered to be one of the best to visit in France for surfing.

By midday, shops and cafés along the waterfront are busy and crowded. Men and women flock to stores for fashionable beach apparel, while others decide to spend their afternoon sailing along the coast. Once the sun sets, fireworks illuminate the sky and the town vibrates with activity.

Overall, I really enjoyed the days we spent in Biarritz, mainly because it was an excellent place to be while getting over jet lag. The town was vibrant, but it was easy to feel relaxed here.

XOXO,

Em

Notes on the outfit- 

I noticed that many young women vacationing in Biarritz wore loose cotton shifts and high-bunned their hair; a very carefree look. To emulate their style, I wore my Madewell drop-waist floral dress and Madewell leather sandals.








Sunday, 18 August 2013

Ninth Circuit: Public Sector Independent Contractor Has No Property Interest and No Section 1983 Claim

42 U.S.C. Section 1983 allows public sector workers to challenge certain government employer action against public sector workers. The law permits state employees to challenge deprivations of due process or equal protection that amount to violations of the constitution.  But to use Section 1983, the employee must demonstrate a property right or liberty interest that the government employer deprived.  Many civil service workers are employed under conditions that virtually guarantee them a job that cannot end without sufficient cause.  Section 1983 lawsuits involving employment actions often are predicated on that sort of employment relationship.

The 9th Circuit Court of Appeals in Blantz v. California Dept. of Corr. and Rehab. considered Blantz's claim that the 14th Amendment protected her engagement as an independent contractor.  Here are the facts as stated by the court:
In July 2006, Blantz entered into a written agreement with Newport Oncology and Healthcare, Inc. (NOAH) to work as a nurse practitioner for the CDCR. The CDCR contracts with NOAH to identify available healthcare professionals and refer them to the CDCR to work in medical facilities owned by the CDCR throughout California. Blantz agreed with NOAH to provide medical services to the CDCR as an independent contractor. Pursuant to the agreement, Blantz’s wages would be paid by NOAH, not by the CDCR.
The CDCR ended the engagement without explanation.  Blantz then tried to obtain a new job with CDCR, but her references did not pan out.  So, she sued CDCR and officials under Section 1983, claiming that her independent contractor arrangement could not be ended without due process (e.g., a hearing and notice of the reasons etc.).

Blantz claimed that CDCR conferred a property right to her independent contractor arrangement by documents that CDCR gave her at orientation. But CDCR's contract with NOAH said CDCR could request her removal essentially at will.

The district court dismissed her case, and the Ninth Circuit affirmed.  The court would not decide whether an independent contractor - rather than an employee - could every have a 14th amendment interest in due process related to her engagement.  The court explained why Blantz's claim failed:

We hold that a state agency does not create constitutionally protected property interests for its independent contractors simply by instituting performance review procedures. Even assuming independent contractors can ever have constitutionally protected property interests in their positions, something more is required: either an affirmative grant of tenure or a guarantee from the government that termination can occur only for cause. Absent such assurances, there is no cognizable basis for an independent contractor to assert an entitlement to her continued position that is constitutionally protected. Because Blantz’s orientation documents did not contain such assurances, we affirm the district court’s dismissal of Blantz’s federal deprivation of property claim.

The court then rejected Blantz's claim that a poor reference deprived her of "liberty" when she was unable to obtain a new position with CDCR. 
the defendants here are not alleged to have precluded Blantz from all government employment, only employment with the CDCR. Blantz allegedly has been barred from employment with one division of the state government; but she is free to seek other nursing positions with the state. Thus, she has not alleged an unconstitutional deprivation of liberty.  See Llamas, 238 F.3d at 1128 (holding that the government had not deprived plaintiff of liberty when plaintiff was barred from future employment with one community college district, but was  free to pursue employment elsewhere).
This case is Blantz v. California Dept. of Corr. and Rehab. and the opinion is here.

 

Friday, 16 August 2013

Employment Tribunal Fees - Reducing the rising tide of Employment Claims?

As you will be aware, as from 29th July 2013 Claimants will need to pay a fee before issuing a new Employment Tribunal claim. Also, new rules of procedure came into place to simplify proceedings which had previously been criticised for not being easy to follow or user friendly. I will write more about the rules of procedure in due course but first of all, I would like to say a little bit about the new fees.

The fees are controversial in that they could appear to be prohibitive and would on face value, prevent those most in need from accessing justice.

In short claimants will need to pay £250.00 to issue a claim and £950 around six weeks before the hearing date for claims of unfair dismissal and discrimination. In less complex and straightforward claims the initial fee will be £160.00 and £230.00 to have the claim heard at a hearing.

There are of course two Judicial Reviews in play challenging the governments ability to charge fees which will be heard later this year and we eagerly await the results.  This being said however, I have been asked as to whether or not I think claimants will be put off under the new fees regime. Personally I do not think they will and the new fees will do little to stem the flow of claims being made. This is for the following reasons:

  1. For those unfairly dismissed and who have lost their jobs, they will probably be able to claim a full remission against the fees payable. 
  2. Those who can demonstrate a low income (disposable) will be entitled to some remission against fees.
  3. Those who have higher value claims or more highly paid employees are unlikely to be put off with the fees payable.
  4. If claims are settled, then no doubt respondents will be asked to cover the fees in any settlement or COT3 agreement.
In my view the fees in place will do little to cut the claims culture although admittedly those with vexatious claims might be prepared to take another view if they are made to pay to play.

I think in summary, the changes that have most impact arising from July 29th are those relating to the procedural rules which have simplified matters considerably for parties before the Employment Tribunals.

I regularly appear at Employment Tribunals and have represented claimants and respondents and I do not see the need for my expertise dwindling anytime soon. If you need Employment Law advice or help with Employment Tribunals please do not hesitate to contact me on 07716 346 708.

Sunday, 4 August 2013

How to be happy and successful: Find the intersection of the spheres


“There is no path to happiness.  Happiness is the path.”

      -Buddha

Because I often speak in person and in my book about using meditation as a tool for self awareness (“clear the mind to see clearly”), and intuition to find your path (“follow the clues to reach the treasure”), I’m often asked for advice on how to be both happy and financially successful.
 I’m also asked the same question, though in a different form, by entrepreneurs about their startups.  “How can my startup be both financially successful and feel like we’re doing something meaningful/unique/making a difference?”.
 It turns out that my answer to this question is the same for both individuals and for startups.

A Tale of Two Extremes

First let’s look at two extreme pieces of advice that I ‘ve often heard given (and followed):

Extreme Advice #1: “Do what you love and the money will follow.” 
This is great advice (and if I’m not mistaken, was the title of a bestseller long ago) in theory, up to a point
But what happens when you start to do what you love and the money doesn’t follow?  The reason there’s still a self-help industry is because it isn’t always so easy to make a living  doing just what you love.
I was reading a book by Dannion Brinkley recently (there’s a throwback to the nineties, when Dannion was a bestselling author, famous for having an NDE after being struck by lightning) and he said that one vision he brought back from the “other side” was a form of spiritual capitalism. In this vision, everyone would do work that they loved and earn enough income from it to make a decent living.    Again, a great vision, but one that doesn’t always play out in the real world the way we’d like. 
 This is also true for startups/entrepreneurs as well, though it can seem paradoxical.
 Some of the most successful startups did in fact start off doing something they believed in, and the monetization came around much later (think twitter, facebook, and Google).  But these are also extreme cases; unfortunately, more often than not (let’s say 9 out of 10 times), simply focusing on your vision without taking the time to fit it to the market is also a recipe why most startups go out of business.
 Too often I see entrepreneurs holding on to a vision of what they want their startup to be, but that vision isn’t producing results and isn’t generating enough cash to stay as an on-going concern, and they don’t admit it until it’s too late.

Extreme Advice #2: “Do what the market needs.  Find meaning elsewhere.”
In a way, this is great advice to be financially successful, but it leads to a whole different kind of frustration.  In the work world, many people have jobs that do not involve something they are passionate about and provides no meaning whatsoever – it’s simply a way to earn a paycheck.
For a startup, this means doing whatever a customer is willing to pay for. While this may lead to a successful company financially in the short term, as an entrepreneur you an feel like you’re “selling out” your vision and you’re not likely to make a big difference or feel passionate about what you’re doing. 
I’ve been in startups which started out as “fun” and “innovative” but ended up being slaves to the almighty dollar – every decision that was made had to do with “will it improve our financials or not?”.  That’s no fun either and you end up wanting to "quit" your own startup and go do something "fun" and "innovative" again!


The Middle Way: Find the Intersection of the Spheres

After reflecting on this question for most of my adult career, I have come to the conclusion that people are only happy and financially successful when they can find the intersection of three spheres. 

Sphere #1: What you love to do, what you want to do. 
Suppose you love writing. Or music.  Or acting, and you decide you want to pursue these things full time.  One thing to think about is that something that we “love” as a hobby may not be so “enjoyable” if it is the sole source of our income – it turns from a “hobby” to “work”. 
Still, it’s useful to create a list of the things we “want” or that we would be happy doing.  For a startup this is our “ideal vision” of what the world might look like with our product/service, without regards to the financial question.
As I mentioned before, focusing too much on sphere #1 often leads to unacceptable results in our careers and our startups but it’s a great starting point.

Sphere #2: What we are good at? 
Creating a list of what we are “objectively” good at is not as easy as it seems.  This is because we are often so concerned with sphere #1 and sphere #3 that we don’t stop to reflect on ourselves.  In fact, I often recommend asking someone else for this list, and we are more likely to get objective answers.
It’s important to be honest with ourselves here.  As an extreme case, suppose I want to be an NBA basketball player – but the truth is that I’m only 5’6 and not very athletic and objectively not that good at basketball.   In fact, I’m a much better computer programmer than I am basketball player. Or for that matter, an actor.  Orson Scott Card wanted to be a stage performer and “loved it”, but he realized he wasn’t that good at it. In fact, the was a much better writer than he was performer.
If you aren’t good at working with people, should you really pursue a goal of becoming the top salesperson (or multi-level marketer) in your region?  How many of us set goals that aren’t appropriate for either our skillset or our DNA (here I don’t mean our actual DNA, I mean our energetic patterns and what we are intuitively drawn to - Steve Jobs would call it "fate, destiny, karma"). I’m not trying to be negative here, I’m saying that each of us has unique talents and aptitudes.
In his bestselling book, Outliers, Malcolm Gladwell says that it takes about 10,000 hours to become an “expert” at something.  The thing he ignores though is that people aren’t interchangeable; we are drawn to different things and good at different things naturally.   I have a friend who has spent this many hours rock climbing. She’s an expert.  Would I be an expert too if I spent 10,000 hours rock-climbing?  Maybe, but most probably I wouldn’t make it to 10,000 hours because I’m not that interested in it, and not naturally drawn to it.  You might say it’s not in my karma.
This is equally true for startups. I’ve noticed that founding teams in different startups have different DNA (again i'm not talking about actual DNA here, i'm talking about aptitude and experience). As a result, certain business models are just easier for them to follow. Interestingly, they aren’t always the business models that they “choose to follow” because they aren’t being honest with themselves..
As an example, in one of my startups, we were very good at delivering developer tools that we sold for thousands of dollars and customized for many thousands more.  Why? Well, it turns out because we were developers ourselves and really understood this market.
At one point someone (I think it was me!) came up with the bright idea to build an end user tool and sell it for $49 or so.  We went ahead – and while we did an OK job, building end users products wasn’t really what we were good at – the product looked very “developer-y” and we couldn’t provide real end user support.  The point here is not that you shouldn’t experiment with different business models or products, it’s that you need a clear mind to see what you are good at and then play to your strengths.  
VC's will often tell you to "play to win".  But you can't "play to win" if you're playing to your weaknesses.

Sphere #3: What the market is willing to pay for..
This brings us to sphere #3.  If we are good at something, there’s a good chance that someone will pay us to do it, and more importantly – keep paying us to do it!
This may seem obvious, but many people set their sights on doing something that no one is willing to pay for, or they get paid for it once and despite the fact that they aren’t very good at it- they keep thinking that others will keep paying them for it.
The important point here is to define the “market” appropriately.  In your career, it might mean local job market – it might mean any company anywhere willing to hire someone full time – or it might be much more specific: “online e-commerce companies that are willing to pay consultants for”.
For a startup, the way you define of market is crucially important.  For example, if you are freemium model in video games, is your market that’s going to pay consumers or advertisers?  This is an important distinction.  You might find you have a free app that millions of people will download, but no one is willing to pay for it – that’s where the advertisers come in.
Usually, an entrepreneur can figure out what’s in sphere #3 by meeting with potential customers.  Very often, they won’t be ready to buy what you are selling, but if you listen closely, you might hear them say something like: “well, yes, that’s nice, but if you could do X, I’d be willing to pay for it right now.”


By listing items in all three spheres, you can start to look for the “intersection of the spheres”.   Seems obvious? In theory maybe, but in practice, it’s anything but, which is why I recommend you look to people that know you (or your startup) well and ask them what is in sphere #2 - what are you really good at?  If you can do this, you can find the sweet spot that can propel your career or your business to the next level, and make you (and/or your employees) happy in the process.

Like the mysterious "one thing" in the movie City Slickers, I can't tell you what lies in the intersection of the spheres.  

That's for you to find out.



Saturday, 3 August 2013

Court of Appeal: No Post-Lawsuit Change to Arbitration Policy

The court of appeal's decision in  Avery v. Integrated Healthcare Holdings Inc. contains a number of lessons about administering policies and litigating.   So, yes, it's another arbitration decision, but more interesting.

First, Tenet owned some hospitals that it later sold to Integrated. Tenet had in place a “Fair Treatment Process,” which included arbitration.  Applicants and employees signed off on this process at a number of different points in their employment relationship. Integrated maintained the arbitration program after the purchase, but made some changes and called it the Alternative Dispute Resolution Process. 

Avery brought a class action for unfair competition, failure to pay appropriate overtime wages, failure to provide meal and rest periods, failure to pay wages when due, and failure to provide accurate wage statements. 

While the lawsuit was pending, Integrated unilaterally changed the arbitration clause by adding a class arbitration waiver.  Integrated posted the change on its intranet page.  But it did not provide employees with a copy of the new employee handbook containing the arbitration provision change, instruct employees to review the new handbook on the intranet, or even notify employees of the existence of the new handbook.

Integrated tried to compel arbitration of each individual plaintiff's claim. The trial court denied its motion to compel. The Court of Appeal affirmed.

The court made two important decisions.  First, the court held that Integrated's class action waiver was unenforceable, but not because of the ongoing war about class action waivers.  Rather, the court held that it was invalid because it was issued after the claims arose, and Integrated failed to notify employees about the new employee handbook. As a result, Integrated was required to rely on the arbitration clause in the Tenet Employee Handbook, the Fair Treatment Process.
 
an employer may not make unilateral changes to an arbitration agreement that apply retroactively to “accrued or known” claims because doing so would unreasonably interfere with the employee’s expectations regarding how the agreement applied to those claims.  (Peleg v. Neiman Marcus Group, Inc. (2012) 204 Cal.App.4th 1425, 1465 (Peleg).)  Similarly, the employer must give the employee reasonable notice regarding changes the employer makes so the employee is aware of his or her rights under the agreement.  (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 706-708 (Serpa).)  Both of these rules prevent Integrated from applying the Alternative Dispute Resolution Process to Plaintiffs’ claims.

Of note, although there are cases disfavoring "policy" based arbitration provisions, the court emphasized that it is ok to have an arbitration agreement in a policy, and even to make changes. But those changes have to be prospective in application only, and the employer must ensure the employees receive reasonable and actual notice of the changes.

Second, the court decided that the trial court correctly denied the motion to compel arbitration, even under the Tenet policy.  Why?  Because the Integrated could not prove that employees had agreed to the Fair Treatment Process that it attached to its motion.  So, the employees signed off on the application and other forms stating they had received the Fair Treatment Process, but there was evidence that there was more than one of those in existence.  The court had no way of knowing if the Fair Treatment Process that was attached to the motion was the one employees agreed to.


Integrated contends the trial court erred in denying its motions to compel arbitration because Plaintiffs each agreed to arbitrate their claims under the Fair Treatment Process set forth in the Tenet Employee Handbook. According to Integrated, the Employee Acknowledgment Form, Application for Employment, and Transition Letter Plaintiffs signed incorporated the Fair Treatment Process and established its binding arbitration provisions as the exclusive means for resolving all claims regarding Plaintiffs’ employment. Although we agree Plaintiffs (except Cade) generally agreed to a Fair Treatment Process by signing one or more of these documents, we nonetheless affirm the trial court’s order denying the motions to compel arbitration because Integrated failed to present sufficient evidence establishing the specific Fair Treatment Process it presented to the trial court was the Fair Treatment Process to which Plaintiffs agreed.

The lesson here?  Ensure that there is a way of identifying handbooks and other documents (such as a control number, version, etc.).  In this case, the application and other documents "incorporated by reference" the full text of the Fair Treatment Process, but there was no way of knowing which version the employee agreed to.  It is critical to have a way of matching the receipt to the policy document.

This case is Avery v. Integrated Healthcare Holdings, Inc. and the opinion is here.


Court of Appeal: Volunteer Reserve Cop Has No Discrimination Claim

L.A. has a corps of volunteer, reservist police in addition to the regular police force.  They grant these volunteers workers' compensation benefits and a $50 per shift expense reimbursement, but no salary. 

Frank Estrada was a volunteer for some 17 years.  The police force ended his engagement after he was investigated for some misconduct related to his regular job.  

He sued for disability discrimination under the Fair Employment and Housing Act.  The court had to decide whether Estrada was an "employee."   (Only applicants/employees can sue under FEHA for disability discrimination).

Agreeing with the trial court, the Court of Appeal said that Estrada was not an employee.  The city did not "appoint" him to an employee position.  That the city chose to extend workers' compensation benefits to its volunteers was a policy decision, the court said.  Here is the punchline:

Estrada was a volunteer who served without remuneration. He was appointed to a volunteer position, rather than to a position in the classified civil service. Accordingly, Estrada was not an employee of the City. (Board Civil Service Rules,§ 1.17.) Therefore, Estrada is incapable of maintaining a cause of action against the City for disability discrimination pursuant to the FEHA.


So, employers may be able to argue that it is possible to cover volunteers with workers' compensation insurance and yet maintain non-employee, volunteer status. But, this case was decided in great part based on Los Angeles' status as a charter city.  So, a private sector employer could come out with a different result. Be careful.

This case is Estrada v. City of Los Angeles and the opinion is here.