NY Government: Going to California...

We sent out an email blast to our clients with known NY Operations, but I'm reposting it here in case I missed anyone... If you don't care about NY wage and hour law, stop reading.  And I mean it.


The NY Legislature took a big step towards full employment for wage and hour lawyers with the passage of the Wage Theft Protection Act. This new law, signed by outgoing NY Governor David Patterson on December 13, 2010, will become effective on April 12, 2011. Employers should start preparing now.

To summarize, this new law requires employers to provide additional information regarding wage payments, and imposes stiff penalties for employers who fail to comply with their wage payment obligations.

Highlights of the New Legislation

Ø Enhanced Notice Requirements: New York wage law already requires employers to give new employees written notice of their rate(s) of pay, overtime rate (if applicable) and regularly scheduled paydays. Employers must also state whether the employee is paid by the hour, shift, day, week, piece, commission, etc., and any intent to claim allowances (e.g., tip, meal or lodging allowances) as part of the minimum wage. Additionally, the notice must include the employer's name, any "doing business as" name, and the employer's physical address, mailing address (if different) and telephone number.

The Act requires employers to give employees notice not only at the time of hire, but also annually, on or before February 1 of each year. Notice must be given in both English and the employee's native language, and employees must acknowledge receipt in writing. Also, employers must provide at least seven calendar days' notice of any changes to the information required to be disclosed, unless the changes are reflected in new wage statements accompanying employees' pay.

Employers must maintain employee notice and acknowledgment records for a period of six years. If notice is not provided to employees within 10 days of initial employment, employers will be subject to penalties of $50 per employee, per week (up to $2,500), in addition to costs and reasonable attorney's fees. The Act permits the New York Labor Commissioner to bring an enforcement action and to seek additional penalties for noncompliance with this requirement.


Ø Employee Wage Statements: The Act requires employers to provide wage statements to their employees with each paycheck specifying the: (1) dates of the applicable pay period; (2) employee's name; (3) employer's name, address and telephone number; (4) rate and basis of pay; and (5) allowances, if any, claimed as part of the minimum wage. For non-exempt employees, the statement must also include the applicable regular and overtime pay rates, in addition to the number of regular and overtime hours worked during the pay period. Payroll records containing this information must be maintained for six years (up from three years). Violations can result in civil damages of $100 for each workweek that the violation occurred (not exceeding $2,500), in addition to costs and reasonable attorney's fees. Additional penalties may be sought and awarded in actions for noncompliance brought by the New York Labor Commissioner on an employee's behalf.

Ø Increased Civil/Criminal Penalties: The Act provides for increasingly strict penalties against employers who fail to pay their employees properly. First, the Act permits liquidated damages against an employer of up to 100% of the total amount of wages found to be due (up from 25% under existing law), unless an employer can prove it had a good faith basis for believing that it was in compliance with the law. Additionally, employers found liable who fail to pay the amount owed pursuant to a final judgment within 90 days will now be assessed an additional 15% in damages. The Act provides for the employee's recovery of prejudgment interest and reasonable attorney's fees in any civil action to recover unpaid wages.

The Act also imposes more stringent criminal penalties for failure to pay minimum wage or overtime wages due. It provides that an employer (including the officers or agents of any corporation, partnership or limited liability company)found not to have paid an employee's wages is guilty of a misdemeanor and will be fined between $500 and $20,000 or be imprisoned for less than one year for each offense. The Act treats each failure to pay employee wages within any workweek as a separately actionable offense. Repeat offenses may result in felony charges, more fines, and up to one year in jail. The Act threatens similar criminal penalties against employers who fail to maintain adequate employee wage records. Initial violations will be deemed misdemeanors, with fines between $500 and $5,000, or up to one year of imprisonment. For subsequent record violations, employers may face felony fines of between $5,000 and $20,000, imprisonment for a period of not more than a year and one day, or both.

Ø Posting Requirement: Employers found liable under the Act may be ordered by the Labor Commissioner to conspicuously post documentation explaining the violation(s) for up to one year.

Ø Whistleblower Protections: The Act also strengthens protections for whistleblowers in cases involving wage violations. Significantly, the Act protects employees from unlawful reprisal (including threats of retaliation) who raise a complaint based upon a "reasonable" and "good faith" belief that their employer has violated the law--even if no violation actually occurred. It also protects employees who assist in the investigation of another employee's complaint, or who have otherwise exercised rights protected by the Act. Upon a finding of retaliation, the Labor Commissioner may award compensatory and liquidated damages (not to exceed $10,000), enjoin acts of retaliation, and order injunctive relief, which may include employee reinstatement. Employees also may make claims of retaliation in court, with similar remedies awarded. Retaliation claims must be made within two years of the alleged retaliatory act, although the two-year statute of limitation is tolled by the filing of an administrative charge with the Labor Department.

To ensure compliance, and avoid the significant penalties for violations, employers with New York operations should carefully review the full text of the New York Wage Theft Prevention Act, which can be found here: http://open.nysenate.gov/legislation/bill/S8380 . Employers must also review and revise their pay practices by the Act's April 12, 2011, effective date.

Thanks to my pal and competitor Tony Rao for pointing this out and thanks to Alex Sperry of our Sacramento office for drafting the analysis.

DGV

NLRB Going Wild

The National Labor Relations Board is proposing a regulation that requires all employers under the NLRB's jurisdiction - both union and non-union- to post a notice explaining to employees their rights under the National Labor Relations Act.  That notice will include helpful information like how to file an unfair labor practice complaint, the right to collectively bargain and elect a union, etc. The entire contents of the notice is posted below.  The proposed regulations currently require qualifying employers to post the notice on paper with the other millions of government posters, and also send the notice out by email or put it on a company intranet. Multiple languages, etc. too.

The proposed regulations are here.  A "fact sheet" is here.  Read the whole proposed poster below. 

This NLRB is on a tear and it won't be long before private sector employers will have to wake up and smell the union. This time I may have to dust off my copy of The Developing Labor Law. My competitors may have to dust off their labor lawyers. OK, I kid! I had too many cookies.


DGV

“EMPLOYEE RIGHTS UNDER THE NATIONAL LABOR RELATIONS ACT

“The National Labor Relations Act (NLRA) guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Employees covered by the NLRA* are protected from certain types of employer and union misconduct. This Notice gives you general information about your rights, and about the obligations of employers and unions under the NLRA. Contact the National Labor Relations Board (NLRB), the Federal agency that investigates and resolves complaints under the NLRA, using the contact information supplied below, if you have any questions about specific rights that may apply in your particular workplace.

“Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.

“Under the NLRA, it is illegal for your employer to:

• Prohibit you from soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you
engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

“Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:
• Threaten you that you will lose your job unless you support the union.
• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take other adverse action against you based on whether you have joined or support the union.

“If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

“Illegal conduct will not be permitted. If you believe your rights or the rights of others have been violated, you should contact the NLRB promptly to protect your rights, generally within six months of the unlawful activity. You may inquire about possible violations without your employer or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the
violation. The NLRB may order an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits, and may order an employer or union to cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website:

www.nlrb.gov.

You can also contact the NLRB by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (1-866-315-6572) for hearing impaired.
“*The National Labor Relations Act covers most private-sector employers. Excluded from coverage under the NLRA are public-sector employees, agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, employees of air and rail carriers covered by the Railway Labor Act, and supervisors (although supervisors that have been discriminated against for refusing to violate the
NLRA may be covered).

“This is an official Government Notice and must not be defaced by anyone.”

Lactation Accommodation Information. .

The helpful folks at the U.S. Department of Labor wants you to know about the new federal requirement that employers grant time off for women to express breast milk.  The DOL's fact sheet is posted here.
You may recall this requirement was included in the "healthcare reform" law.  I have not yet seen any legislative effort to grant male workers equal rights in this area.  But hope springs eternal.
DGV

Top 100 Employment Law Blogs

Yeah, another day, another award.  We were included in the Delaware Employment Law Blog's top 100 employment law blogs. See the post here.   We're # 17, even. But it seems they grouped them by certain criteria, and then ordered them alphabetically. So, who knows whether they just like us or REALLY really like us.  Disirregardless, it's an honor to be read and recognized. So, thank you Delaware Employment Law Blog!

Besides tooting our horn, the purpose of this post is to give you access to at least 100 employment law blogs that post in different states, on a variety of topics. The folks at the DELB put a lot of time and effort into compiling this information, not to mention their substantive posting over there.  Take advantage of all their hard work.Knowledge is POWER people!  Whew. I just got all red and stuff.

DGV

Payroll Company Not an "Employer" for Wage Hour Purposes

If an employer "outsources" payroll services to another company, can that payroll service company be held liable for wage-hour violations as an "employer?"  No.

The California Supreme Court in Martinez v. Combs (discussed here) determined who is liable under California wage and hour law - i.e., who is an "employer."  The court of appeal in Futrell v. Payday California, Inc., applied Martinez's definition of "employer" in deciding that a payroll service provider was not an "employer."

Futrell provided private police / crowd control services for a Reactor, a production company that makes commercials. The production company "payrolled" its employees through Payday, a payroll service company.  Futrell brought a class action against Payday, alleging wage-hour violations. Payday prevailed on a motion for summary judgment because the trial court held Payday was just a vendor of Futrell's actual employer, the production company.

The court of appeal held that Martinez restricts who may be held liable for wage-hour violations. The court rejected Futrell's argument that Payday exercised control over his wages:

There is no evidence in the record showing Payday exercised any control over Futrell‟s hours or working conditions. Reactor hired Futrell, and arranged and supervised the location shoots. . . . This means the only possible linchpin for finding that Payday was Futrell‟s employer is whether Payday “exercised control over his wages.”


If Payday had merely collected tax information from workers, kept track of time cards, calculated pay and tax withholding, and submitted reports to Reactor detailing such information, leaving it for Reactor to issue paychecks to the workers on its productions, we would have an easy case; Reactor would be the only employer. In our view, the issue in this case then comes down to whether Payday exercised “control over workers‟ wages” by going beyond handling the ministerial tasks of calculating pay and tax withholding, and by also issuing paychecks, drawn on its own bank account. We think not.

. . .. . Writing on a clean slate, we conclude that “control over wages” means that a person or entity has the power or authority to negotiate and set an employee‟s rate of pay, and not that a person or entity is physically involved in the preparation of an employee‟s paycheck. This is the only definition that makes sense. The task of preparing payroll, whether done by an internal division or department of an employer, or by an outside vendor of an employer, does not make Payday an employer for purposes of liability for wages under the Labor Code wage statutes.

The court then reached a similar conclusion under the federal Fair Labor Standards Act:

Although the FLSA applies a slightly different test than California law, the predominant factor remains the control an alleged employer exercises over an employee. Incorporating the reasons explained above into the FLSA test, we find Payday was not Futrell‟s employer for purposes of the FLSA. The economic reality existing between Futrell and Payday is that the latter prepared paychecks for the former for the work he performed on behalf of his actual employer, Reactor.

This case will come as good news to PEOs and other HR outsourcing companies, who may have been sued as "joint employers" for wage and hour violations. The court here, though, held that nothing in the opinion affects the analysis of who is the "employer" under any other body of law except wage-hour.

The case is Futrell v. Payday California, Inc. and the opinion is here.

San Francisco Minimum Wage Going Up 1/1/2011

San Francisco has its own minimum wage law.   It is indexed to inflation. It did not rise in 2010. However, it's rising as of 1/1/2011.  The new rate will be $9.92 per hour.  There of course is a new poster!  Get information here. 

Court of Appeal: Employer's Lawsuit Against Terminated Employees Beats Anti-SLAPP Motion

Overhill Farms received notice from the IRS that hundreds of its employees' social security numbers were invalid. The company gave employees a chance to correct the problem. Those who did not were terminated. The law imposes fines and potential criminal liability on employers who permit employees to work with false social security numbers.

Led by an activist organization, some of the terminated employees began protesting at Overhill. The protestors accused Overhill of being racists and ageists, and all kinds of other -ists because of the termination decision based on the IRS's action.  The leaflets they handed out said, among other things:

“OVERHILL FARMS UNFAIR and RACIST EMPLOYER.”  The leaflets distributed at the protests contained the heading “OVERHILL FARMS UNFAIR AND RACIST.”  Overhill is “[a]n abusive and racist employer in the manner that it treats its workers,” which “discriminates against Latinos”; has “unfairly terminated 300 workers,” has “fired workers for expressing themselves freely according to the First Amendment of the U.S. Constitution,” has “exploited Latinos for 30, 20, 15 and 10 years and then threw them to the streets — many single female heads-of-household,” and has exploited part-time workers “visciously as if modern slavery were in place.” 

Well, Overhill fought back. It sued the protestors for a variety of torts, including defamation, interference with prospective economic advantage, and unfair business practices. But the protesters challenged the lawsuit as a "SLAPP" - a lawsuit in retaliation for their First Amendment activity - protesting.
Protesting of course is protected by the First Amendment. But the First Amendment does not protect against libel - provably false statements of fact. Certain types of false statements have to be made with malice to constitute defamation.

The court of appeal said that merely calling Overhill "racist" was not defamatory:

We agree that general statements charging a person with being racist, unfair, or unjust – without more – such as contained in the signs carried by protestors, constitute mere name calling and do not contain a provably false assertion of fact.  Similarly, references to general discriminatory treatment, such as that contained in the handbill and flyer here, without more, do not constitute provably false assertions of fact.  (See, e.g., Beverly Hills Foodland v. United Food & Commercial Workers Union, Local 655 (8th Cir. 1994) 39 F.3d 191, 196 [“‘[T]o use loose language or undefined slogans that are part of the conventional give and take in our economic political controversies — like ‘unfair’ and ‘fascist’ — is not to falsify facts.’  [Citations.]”].) 

But, the protestors went further:

The press release contains language which expressly accuses it of engaging in racist firings and declaims upon the disparate impact the firings have had on “immigrant women.”  Similarly, after discussing Overhill’s termination of one-fourth of Overhill’s work-force, the leaflets explicitly assert that  the discrepancy in social security numbers was merely a “pretext” to eliminate certain workers, and refers to Overhill’s conduct as “racist and discriminatory abuse against Latina women immigrants.”  Moreover, in almost every instance, defendants’ characterization of Overhill as “racist” is supported by a specific reference to its decision to terminate the employment of a large group of Latino immigrant workers.  The assertion of racism, when viewed in that specific factual context, is not merely a hyperbolic characterization of Overhill’s black corporate heart – it represents an accusation of concrete, wrongful conduct.

 The court therefore held that generally calling someone racist is hyperbole. But saying that an employer fired an employee due to unlawful discriminatory motive is a provable assertion of fact.  That conclusion could have ripple effects beyond protesting. For, if this opinion stands, when an employee alleges wrongful termination due to discrimination, retaliation, etc., an employer is within its right to sue for defamation if it can prove that the statement is false.

The decision was 2-1. The dissent said:

I part company with the majority opinion in two fundamental respects.  First, my colleagues in the majority have incorrectly made this court the first state or federal appellate court in America, ever, to hold that the epithet “racist” constitutes a provably false assertion of fact as the basis of a claim of defamation.  The majority attempts to argue that it is only so holding because the term “racist” was used in combination with other words.  But those other words are not actionable and the majority does not and cannot argue otherwise.  Whether the word “racist” is used as a noun or an adjective in combination with other words does not matter.

Second, in my view, the majority misapplies the United States Supreme Court opinions in Milkovich v. Lorain Journal Co., supra, 497 U.S. at page 19 and Linn v. United Plant Guard Workers (1966) 383 U.S. 53, 58.  Defendants’ communications in their dispute with their employer simply did not contain a provably false fact and the reasons for their allegations were disclosed.  (Franklin, supra, 116 Cal.App.4th at p. 387.)  The majority opinion’s parsing of the one word “discrepancies” in reaching its conclusion is not consistent with United States Supreme Court jurisprudence in defamation cases.  I agree the employees’ claims might not be persuasive, but that does not make them defamatory.

My thought is that the California or US Supreme Court will take up this case.  A lot of former employees accuse their employers of being "racist" or discriminatory in making employment decisions.  One can imagine the argument that this decision will interfere with the enforcement of the civil rights laws.  One can also argue that the term "racist" or "discriminatory" is a powerful weapon and should not be tossed around without a factual basis to back it up.  There's the rub. We'll see what happens next.

The opinion is Overhill Farms, Inc. v. Lopez and the opinion is here.

DGV

Winter formal

Hey Everyone!!

A few weeks ago, I was frantically searching for THE dress for my school's winter formal on December 10th.  I tried Nordstrom. I tried Forever 21. I tried H&M.. After about a week of searching, I was only disappointed. I had this image in my mind of a dress that really showcased who I was. I was surprised that I didn't hit gold at any of the stores, but the disappointment only led me to the dress. 

I was on Facebook, and this one ad for a company, known as Modcloth, caught my attention. I went on the website, and almost immediately, i found the perfect dress.

I was thrilled when I got it in the mail, and got tons of compliments on it. In the future, all my dresses are being bought here. You can see the picture below (I'm on the right)...

<3 Em

Silver Platter dress, Modcloth. 

U.S. Supremes Grant Review of Walmart Class Action

So, I have posted on Dukes v. Walmart for a few years now... here and here.  This is the class action involving potentially 1.5 million current and former Walmart employees all over the country.
The U.S. Supreme Court decided to consider some issues that arise in federal class actions:

Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

and 

Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).

Here's a comprehensive post with cites to all kinds of relevant information from Ross Runkel's Employment Law blog. 

Federal Rule of Civil Procedure 23 governs class actions. So, that's what the court is referring to above. In essence the court is deciding whether and to what extent a court can order money to be paid if a class action is certified under Rule 23(b)(2), which is supposed to apply only to class actions seeking injunctions.

Yes, on the surface, the legal issues may read like real snoozers for HR and most employment lawyers. But the case is gold for civil procedure junkies.  And don't let all that civil procedure jargon fool you. The stakes  are incredibly high and the court has the opportunity to shape how federal class actions in discrimination cases may be asserted. The court's decision could well shape how multi-state employers implement policies to avoid class action treatment of seemingly unrelated decisions.... So, stay tuned!

DGV

IRS Standard Mileage for 2011

The IRS raised the standard mileage rate for automobile reimbursement to .... $0.51.  Don't trust me?  The link is here.

• 51 cents per mile for business miles driven
• 19 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organization

DGV

Holiday Glamour

Hey Everyone!
This month, I really wanted to create this effortless, glamour look. I was inspired by this one night where my mom and I were driving through the city after we had just seen In the Heights. The colors, the lights and the sparkle all presented this beautiful image that I wanted to re-create in a shoot. Enjoy!

Gap Blazer and Ruffle Cardigan, Rue 21 Skirt, Mulberry for Target Bag, Talbots Necklace

Charlotte Sweater worn backwards (As seen on GLEE!)
Abercrombie and Fitch Skirt

Juicy Couture Velour Dress, Cubism Sweater, Talbots Necklace, J. Crew Necklace. 

Notes-

-Taken on Photobooth

-Edited on Picnik

Makeup Products-

 Sephora Eye pencil

Clinique Blush

 Benefit Bad Gal Lash

 M.A.C. Dazzleglass Lipgloss

XOXOXOXOXO

Em

California Supreme Court: Waiting Time Penalties are..Penalties!

I know, sounds obvious. But folks were claiming that waiting time penalties, like meal period penalties, are a form of wage.  They were making this argument to permit claims for waiting time penalties under California's unfair competition law, because that law has a four year statute of limitations.

No sale, said the California Supreme Court in Pineda v. Bank of America (opinion here). In that case, Pineda received his wages four days late. He brought a class action for waiting time penalties. on behalf of everyone who was paid late under Bank of America's final pay policies. 

Pineda argued that he should be able to sue for waiting time penalties under California's unfair competition law (Bus. Prof. Code section 17200).  The Supreme Court rejected that argument because waiting time penalties are not "restitution," the only time that money is recoverable under the UCL.  Plaintiffs wanted to use the UCL to benefit from that law's four-year statute of limitations.

But the Supreme Court giveth, and taketh away.  The other issue decided today is that the statute of limitations for waiting time penalties is not affected by whether the employer ultimately paid the wages, albeit late.

The lower courts dismissed the case because he did not file his case within a year of his termination. The lower courts applied case law like in McCoy v. Superior Court (2007) 157 Cal.App.4th 225, 229-230. There, the court of appeal held a one-year statute of limitations applies to waiting time penalty claims if the wages are paid as of the time of suit. 


The Supreme Court rejected McCoy and held that in all instances, the waiting time penalty statute, Labor Code Section 203, imposes the same statute of limitations. That section says that the statute of limitations for waiting time penalties is the same as the limitations period applied to the underlying wage claims.  The Supreme Court said that rule applies whether the wages are paid or not at the time of suit.

DGV

Arizona Medical Marijuana Law

So, there was a big debate over what would happen in the workplace if California's Prop. 19 were to pass. If you have a short memory, that was the initiative to basically legalize personal use of marijuana.  Well, that initiative failed to pass back on November 2.

In Arizona, on the other hand, the voters passed their own Prop. 203. Text is here.
Prop. 203 legalizes certain "medical marijuana," making AZ the 15th state to do so. But AZ's new law expressly protects medical marijuana users at the workplace:

6-2813. Discrimination prohibited

***. 

B. UNLESS A FAILURE TO DO SO WOULD CAUSE AN EMPLOYER TO LOSE A MONETARY OR LICENSING RELATED BENEFIT UNDER FEDERAL LAW OR REGULATIONS, AN EMPLOYER MAY NOT DISCRIMINATE AGAINST A PERSON IN HIRING, TERMINATION OR IMPOSING ANY TERM OR CONDITION OF EMPLOYMENT OR OTHERWISE PENALIZE A PERSON BASED UPON EITHER:

1. THE PERSON'S STATUS AS A CARDHOLDER.

2. A REGISTERED QUALIFYING PATIENT'S POSITIVE DRUG TEST FOR MARIJUANA COMPONENTS OR METABOLITES, UNLESS THE PATIENT USED, POSSESSED OR WAS IMPAIRED BY MARIJUANA ON THE PREMISES OF THE PLACE OF EMPLOYMENT OR DURING THE HOURS OF EMPLOYMENT.

36-2814. Acts not required; acts not prohibited 

A. NOTHING IN THIS CHAPTER REQUIRES:

* * *

3. AN EMPLOYER TO ALLOW THE INGESTION OF MARIJUANA IN ANY WORKPLACE OR ANY EMPLOYEE TO WORK WHILE UNDER THE INFLUENCE OF MARIJUANA, EXCEPT THAT A REGISTERED QUALIFYING PATIENT SHALL NOT BE CONSIDERED TO BE UNDER THE INFLUENCE OF MARIJUANA SOLELY BECAUSE OF THE PRESENCE OF METABOLITES OR COMPONENTS OF MARIJUANA THAT APPEAR IN INSUFFICIENT CONCENTRATION TO CAUSE IMPAIRMENT. 

B. NOTHING IN THIS CHAPTER PROHIBITS AN EMPLOYER FROM DISCIPLINING AN EMPLOYEE FOR INGESTING MARIJUANA IN THE WORKPLACE OR WORKING WHILE UNDER THE INFLUENCE OF MARIJUANA.

Rad, huh?  So, you can't smoke pot AT work. The employer doesn't have to give up federal dollars to permit users to have pot in their system. ...  But generally, (1) no taking action based on positive drug tests unless the level in the blood suggests impairment (2) employers don't have to let you work "impaired" (stoned) or under the influence (buzzed?).  


I guess we're going to find out what "impaired" and "under the influence" means through a series of regulations that are supposed to be issued within the next few months.  


Remember, this isn't a general legalization of marijuana. It will apply only to "qualified" patients who are certified as having the requisite medical conditions. 


Good luck Arizona employers!  

DGV

"Suitable Seating" Class Action Goes Forward

Retailers must provide "suitable seating" in accordance with the California Industrial Welfare Commission's Wage Order 7-2001, section 14. It says: "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."

Eugina Bright worked for 99 Cents Only Stores. She brought a class action alleging that, as a cashier, the company could reasonably have provided her with a seat suitable for cashiering. She sought penalties under PAGA (Private Attorneys General Act of 2004), claiming that the Wage Order violation supported PAGA penalties.

The trial court held that Ms. Bright was not "underpaid" and, therefore, could not collect penalties under Section 20 of the Wage Order. She also could not collect PAGA penalties, the trial court believed, because PAGA's extra "catchall" penalty does not apply when there is an applicable penalty in place. Sort of a "gotcha" ruling, which I admire.

But the court of appeal did not share my sense of irony, holding that PAGA penalties are available for wage order violations, even if Wage Order Section 20 penalties do not apply:

Section 2699, subdivision (f) makes its civil penalty applicable to violations of “all provisions of this code except those for which a civil penalty is specifically provided.” (§ 2699, subd. (f).) Section 1198, the code section Bright contends was violated, contains no civil penalty. (See § 1198.) Nowhere in the Labor Code is a civil penalty specifically provided for violations of the suitable seating requirement incorporated in section 1198. Thus, section 2699, subdivision (f), by its terms, allows for a civil penalty for violations of section 1198 based on failure to comply with the suitable seating requirement.

The case is Bright v. 99 c Only Stores, Inc. and the opinion is here.

DGV

Annual Legal Update - Web or Live

The end of the year is here. There are new laws, new regulations, and new court decisions to digest.  How will you keep up? How will you know what to do?  Please, somebody help you!  Aaargh.

Relax. Shaw Valenza is here to ease your worried mind, smooth your furrowed brow, apply myrrh to your foreheads. OK, I wouldn't know where to get any myrrh now that Prop. 19 did not pass.  Myrrh dealers... get the word out.

Anyway, wise men -- and women -- from all over are going to get even wiser when they attend our annual Employment Law Update!  Statutes, regulations, case law, and how to's. Best news yet, Jennifer Shaw herself is presenting.  And such a deal.

Here's a link for more information.  Click it.  Now.  Ok, now.
http://www.shawvalenza.com/training_sessions.php?id=81

DGV

Blog refresh - Blogroll dead

Just a quick note that I slightly upgraded the design of the blog. If you have feedback please let me know.

I just learned that my list of interesting blogs (blogroll) was destroyed, because the "blogroll" company that hosted it "ceased operations."  So, if you have suggestions for additions to my blogroll, please let me know. Also, if you used to be on my blogroll and would like to be added again, please send me a note.

DGV

Court of Appeal: No Attorney Present at Plaintiff's Mental Examination

The court of appeal's opinion in Toyota v. Superior Court should be interesting to employment lawyers and maybe to their clients involved in employment litigation.
Steven Braun was a plaintiff in a discrimination and harassment case against Toyota. He claimed significant emotional distress as a result of the conduct. Toyota arranged for a mental examination. Braun's attorney sought to impose certain conditions, including that it be taped, and that the attorney could accompany Braun to the exam and wait in an adjoining room. The doctor balked at this condition, as did Toyota. The Superior Court, however, allowed it. So, Toyota sought a "writ" - a mid-litigation appeal - overturning the Superior Court's decision.

The Court of Appeal granted the writ, which almost never happens in discovery disputes. The court said that although an attorney is not always prohibited from attending an examination, he or she must make some evidentiary showing of need. Toyota, on the other hand, showed (1) that the examination's scope was limited by court order (2) that the doctors believed the attorney's presence could influence the examination. The court also noted that medical professionals conducting such examinations are entitled to a presumption they will act properly.

The case is Toyota v. Superior Court and the opinion is here.

First 'Photoshoot'

Hello! This whole idea was a mix of 40's film style and the 70's hippie chic era...I ended up getting a nice mix of styles. Enjoy!!! :)

Free People Crochet Top, Hollister Tank, J. Crew Ribbon Necklace, Betsey Johnson Sunglasses.

J Crew Ruffle Tank, Abercrombie and Fitch Leggings, Hollister Tank.

Boden Shirt, Abercrombie and Fitch Skirt, J. Crew Necklace, Target Scarf.

Notes-

Makeup- Lancome Palette, Nars Lipgloss in Turkish Delight.

Photographs taken on my Mac, edited on Picnik.

Love,

Em

New glasses

So on Friday, this kid from my orchestra class gave me a pair of the real-3D glasses. I love them so much that I've been wearing them around the house, and refuse to take them off.

I love taking pictures. 

Court of Appeal: Meal and Rest Breaks Need Not Be Forced

Everyone is waiting for the California Supreme Court to issue its decision in Brinker or Brinkley or both regarding whether meal / rest periods must be ensured or merely provided under California law. Well, nearly everyone.

The Court of Appeal in Hernandez v. Chipotle Mexican Grill, Inc., just decided that meal and rest periods must be allowed, but that employees who choose not to take them cannot recover penalties. The court upheld dismissal of a class action given that each individual class member would have to prove he or she was prevented from taking given meal or rest periods.

The opinion in Hernandez v. Chipotle Mexican Grill, Inc. is here.

Court of Appeal Moves the Arbitration Goal Posts Again

One of the frustrations with employment arbitration is that the courts continue to invent new ways of invalidating them. Employers who favor arbitration are stuck with re-issuing agreements with each new court decision.

The California Court of Appeal's decision in Trivedi v. Curexo Technology Corp. is the latest effort to invalidate arbitration contracts.

First, the court found that the arbitration agreement was "procedurally unconscionable." That is the first step, because a court has to find both procedural and substantive unconscionability. Since the employer usually presents an arbitration agreement as "take it or leave it," an arbitration agreement usually has some "procedural unconscionability" because it is an "adhesion contract" (take it or leave it.).

But the court did not stop at adhesion contract. In a footnote, the court said that the arbitration clause was in the same type face as the rest of the employment contract in which it was contained. The court found that its lack of "prominence" was "one factor" courts consider in determining unconscionability. With this statement, the court proves once again that the doctrine of "unconscionability" is being used as an end-run around the Federal Arbitration Act. If the court required "prominence" as a condition of enforcing the agreement, the requirement would plainly violate the U.S. Supreme Court's decision in Doctor's Associates v. Cassarotto, 517 U.S. 681 (1996). In that case, Montana required arbitration agreements to be in all-caps and on the first page of a contract.

But wait, there's more. The court also held that the employer referenced the American Arbitration Association employment arbitration rules. These rules are expressly DESIGNED to implement procedural fairness. Get this - the employer did not attach the rules to the arbitration agreement. As a result, the court found, the agreement was procedurally unconscionable(!)
I just linked to the rules above. They're as easy to obtain as the Code of Civil Procedure or California case law. The employer did not attach the Code of Civil Procedure either. If the AAA rules were not used, would the agreement have been unconscionable because the Code of Civil Procedure was not attached? What if the California Supreme Court's Armendariz case was not attached? (That case imposes several requirements on lawful agreements.)

Anyway, the court then turned to substantive unconscionability. The arbitration agreement permitted the arbitrator to award fees to the prevailing party. The court held this provision to be unconscionable, because case law says that defendants may recover fees in FEHA cases only when the plaintiff's claims are frivolous, unreasonable, or without foundation. The funny thing is that the FEHA statute itself simply says that the "prevailing party" may recover fees. So, the decision requires the arbitration agreement to spell out what case law says?? The court ignored the reality that the arbitrator will consider case law in making his or her decision. The court also dismissed the employer's argument that the AAA rules require the arbitrator to award fees in accordance with applicable law.

The court also concluded that the agreement's reference to injunction relief was consistent with the Code of Civil Procedure, but was nevertheless evidence of unconscionability. The logic is that the employer would take advantage of that provision more frequently than the employee. The court leaves us to guess how a provision that is no broader than an existing statute is evidence that an agreement is invalid.

Finally, the court refused to sever the attorney's fees or injunction provision. It found the agreement was "permeated" by unconscionability because of the injunctive relief and attorney's fees provisions. The court neglected to cite the key case on severability, Little v. Auto Stiegler Inc., 29 Cal.4th 1064 (2003). The court also made no mention of how the agreement was "permeated" with unconscionability given the rather mild clauses the court found to be unconscionable.

Anyway, if this case stays on the books, it's going to require significant changes to arbitration agreements. Employers should consider either directing employees to dispute resolution rules on the web or, preferably, give the employees a copy with the agreement. Additionally, attorney's fees and injunctive relief provisions should contain the qualifying language, "as permitted by applicable law."

This case is a good example of why the U.S. Supreme Court is going to decide whether these "unconscionability" cases are a mere end run around the Federal Arbitration Act. Look for the Court's decision in AT&T v. Concepcion in a few months. Ross Runkel's excellent resources on Concepcion are here.

The decision in Trivedi v. Curexo Technology Corp. is here.

DGV

Polyvore Designs

Here are some of my designs from Polyvore-



"Lunch with friends"



Coachella Inspired.

Topshop Inspired.

Harajuku Inspired.

Ninth Circuit Explains "BFOQ" Defense in Sex Discrimination Case

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sex and other criteria. But there are some defenses to discrimination. One of these is the "BFOQ" or bona fide occupational qualification.

As the court of appeals explained in Breiner v. Nevada Dept. of Corrections, the BFOQ defense is "an 'extremely narrow exception to the general prohibition of discrimination on the basis of sex' that may be invoked 'only when the essence of the business operation would be undermined' by hiring individuals of both sexes."

So, the Nevada prison system was beset by a number of instances of male corrections officers engaging in sexual conduct with female inmates. A guard impregnated an inmate, which came to the attention of administration. The inmates purposely traded favors for better treatment.

Nevada's response, in part, was to exclude males from certain jobs, including "Corrections Lieutenant" at women's prisons. The thought was that hiring only female lieutenants would cut down corruption caused by female inmates' solicitations. Some male corrections officers sued, saying they were denied promotional opportunities at the female prisons.

The Ninth Circuit reversed the prison systems' summary judgment victory. The court did not believe that Nevada adequately supported its justification for discriminating against male candidates for hiring at women's prisons.

This opinion explains in detail the BFOQ defense and the employer's difficulty proving it. Much of the opinion focuses on prison cases, but the BFOQ defense and its burdens will be applicable to all businesses seeking to establish a sufficient justification for hiring women or men exclusively in a particular setting.

The case is Breiner v. Department of Corrections and the opinion is here.

New DOT Drug Testing Rules

The US Department of Transportation (DOT) modified its drug testing rules. The entire new rules can be read here.

Only employers that MUST comply with DOT drug testing rules (for drivers of larger trucks) MUST comply with these new rules, which take effect October 1, 2010.
So, employers that have voluntary (optional) drug testing plans in effect may wish to modify them to conform with the DOT rules, but they do not have to.

The DOT has summarized the changes in an email which I'm pasting here:

1) The Department is required by the Omnibus Transportation Employees Testing Act (Omnibus Act) to follow the HHS requirements for the testing procedures/protocols and drugs for which we test.

2) Primary laboratory requirements in this final rule include:

- Testing for MDMA (aka. Ecstasy);

- Lowering cutoff levels for cocaine and amphetamines;

- Conducting mandatory initial testing for heroin;


3) The Department brought several testing definitions in-line with those of HHS.

4) Each Medical Review Officer (MRO) will need to be re-qualified – including passing an examination given by an MRO training organization - every five years. The Final Rule eliminated the requirement for each MRO to take 12 hours of continuing education every three years.

5) An MRO will not need to be trained by an HHS-approved MRO training organization as long as the MRO meets DOT’s qualification and requalification training requirements.

6) MRO recordkeeping requirements did not change from the five years for non-negatives and one year for negatives.

7) The Final Rule does not allow the use of HHS-Certified Instrumented Initial Testing Facilities (IITFs) to conduct initial drug testing because the Omnibus Act requires laboratories to be able to perform both initial and confirmation testing but IITFs cannot conduct confirmation testing.

8) The Final Rule is effective October 1, 2010.

Ninth Circuit and Female on Male Sexual Harassment

The EEOC sued on behalf of Lamas, a male worker at Las Vegas' airport. He worked for a service company called Prospect Airport Services. Over time, a female, married employee,Munoz, openly solicited Lamas for sex and a relationship. When Lamas rebuffed him, she recruited co-workers to help. He steadfastly told her he wasn't interested.

Lamas ultimately complained. The first supervisor said she'd talk to Munoz, but didn't. The senior Prospect manager told Lamas it was a "personal" issue but that he would talk to Munoz as a "favor." He actually did talk with Munoz, but she was undeterred.

Lamas over time became upset and offended, his work performance suffered, and - yep - Prospect fired him.

So, the district court held the work environment was insufficiently hostile. The Ninth Circuit reversed. The court went through each element of a harassment claim and found Lamas satisfied each one at least enough to avoid Prospect's motion for summary judgment.

The opinion of course is interesting because it involves a female harassing a male. For readers of this blog, though, it's a reminder of how unsophisticated line management is about harassment. Had the sexes been reversed, it's pretty safe to assume management would not have been so cavalier. Lamas had written evidence of Munoz's come-ons. Management simply did not take him seriously, but then fired him when his performance deteriorated. Jeez. If they're conducting training at Prospect, it's not sinking in or it's not effective.

The opinion is EEOC v. Prospect Airport Services, Inc. and the opinion is here.

Court of Appeal Reverses Summary Judgment in Age and Disability Case

Sandell, formerly Taylor guitars' vice president of sales, suffered a stroke. As a result, he walked with a cane and spoke slower than had previously had. Taylor ultimately fired him, claiming he did not motivate the sales staff and because sales were anemic under Sandell's leadership.

The court of appeal reversed the trial court's summary judgment. On the disability discrimination claim, the court noted that Sandell did not claim Taylor failed to accommodate him. Sandell said he could do his job without accommodation. Rather, this was a straight disparate treatment case - "they fired me because I had a disability."

Finding a factual dispute on whether Taylor's reasons for discharge were pretextual, the court relied on performance appraisals that were rosier than Taylor's characterization of Sandell's performance during litigation. So... stop me if you've heard this ... overly nice performance appraisals will come back to bite you.

Another interesting part of the opinion addressed Sandell's subordinates declarations confirming Sandell's lack of leadership skills. The court said that the employees had failed to complain during Sandell's employment, so a reasonable jury could infer the opinions had changed (for litigation?!). That's a very generous inference for the court to make, IMO.
Finally, the court was troubled by some he-said /he-said discriminatory comments, which the court believed was enough additional evidence of discrimination to send the case to the jury. The court rejected the "same actor" claim that the CEO hired and fired Sandell within five years. The court said that the CEO's perception of Sandell as "old" could have changed within that period of time, particularly because of Sandell's physical changes.

The opinion is Sandell v. Taylor-Listug, Inc. and the opinion is here

No More Demurrers to Wage Hour Class Action Complaints?

The Court of Appeal in Guiterrez v. California Commerce Club, Inc. (opinion here) pretty much said that trial courts should not sustain demurrers (aka motions to strike class allegations) in wage-hour class actions. Ever. There are a few cases where demurrers have been sustained / granted. So, unless the Supreme Court or Legislature closes the door forever, it is not sanctionable to keep trying!

New California Workers' Compensation Regulations

Workers' compensation law is just one more thing that HR has to be worried about. I try not to worry about it, but I can't help it. Our friends at the California Chamber of Commerce published a handy FAQ regarding new regulations. The regulations concern Medical Provider Networks. In particular, the posters and notices must be revised substantially. The FAQ's lead you to the government's source documents. The deadline is October 8, 2010, so get ready.

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.

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.

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!