Tuesday, 6 January 2009

Court of Appeal Affirms Jury Verdict Finding Adequate Accommodation

Julie Wilson worked as a radio dispatcher for Orange County's emergency communications system. Because of a disability that was aggravated by stress, she sought accommodations that included assignment only to certain shifts at certain times. The county temporarily gave her exactly what she wanted, but decided initially that the accommodation could not be permanent. After substantial negotiating, leaves, and rejected proposals, the County assented to all of Wilson's requests. The key issue was the delay between her initial request and the final accommodation. A jury returned a verdict for the county on her claim for denial of accommodation. The court of appeal affirmed:


The real gist of Wilson’s complaint is not that she wasn’t accommodated, but that it took too long for her supervisors to finally agree to a permanent arrangement--i.e., that she could return to work at Control One, in her same position, with the restrictions she wanted. It is this delay that forms the basis of her interactive process
claim. She argues that as a matter of law, the County failed to engage in a good faith
interactive process with her because it did not commence the interactive process until June 2005, prior to which the County simply “contrived a circumstance” to justify not engaging in the interactive process—namely, that Wilson’s disability was
only temporary.
* * *
Here, the record demonstrates the County engaged in a process aimed at trying to accommodate Wilson. Indeed, the success of its process is borne out by the fact
that in the end, Wilson got exactly what she wanted—albeit after a series of temporary accommodations.

The case is Wilson v. Orange County and the opinion is here.

Friday, 2 January 2009

SV Employment Law Article Pot Pourri

We publish articles bi-weekly in the Sacramento Daily Recorder newspaper, and about monthly in the San Francisco Daily Journal. Here are some of the articles we've published in the past few months:

STATUTE OF LIMITATIONS FOR FEHA CLAIMS ON THE VERGE OF EXTINCTION
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-12-30

WILL CONGRESS BAN SEXUAL ORIENTATION DISCRIMINATION?
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2008-12-18

DISABILITY DISCRIMINATION AND QUALIFICATION STANDARDS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-12-02

GOLDEN STATE OF MIND
By D. Gregory Valenza
The Daily Journal
2008-11-28

RECENT DEVELOPMENTS REGARDING INTERNAL EEO COMPLAINT PROCEDURES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-11-20

NEW LAW AIMS TO ENCOURAGE COMPLIANCE WITH DISABLED ACCESS RULES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-11-06

ALTERNATIVE POSITIONS AS A REASONABLE ACCOMMODATION: WHAT IS REQUIRED?
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-10-08

THE ADA AMENDMENTS ACT
By Jennifer Brown Shaw and D. Gregory Valenza
The Daily Recorder
2008-09-24

FLESHING OUT THE ADA
By D. Gregory Valenza
The Daily Journal
2008-09-16

BACKGROUND INVESTIGATIONS KEEP GETTING MORE COMPLICATED
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-09-10

EDWARDS V. ARTHUR ANDERSEN: NON-COMPETE AGREEMENTS AND GENERAL RELEASES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-08-26

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-07-31

Wednesday, 31 December 2008

San Francisco Minimum Wage Going UP

1/1/09 - the SF Minimum Wage increases to $9.79. And let's not forget that poster! Here's a free one. The $9.79 minimum applies to all private sector employers. But city government contractors have a higher minimum wage $11.54. And here is your poster, government contractor! Happy new year anyway.

Tuesday, 30 December 2008

Court of Appeal: Employer Must Disclose Classmember Info Even Over Their Objection?

The general trend has been that the courts do not mind -- at all -- if employees' names and addresses are disclosed to plaintiffs' attorneys in class action cases. The most an employer can hope for is the right to send out an "opt out" form before disclosure, where employees must affirmatively deny their consent to release the information.

Well Crab Addison (operator of Joe's Crab Shack) decided to go one better: send out the "opt-out" form to all employees before it was required to disclose the information in discovery, but without specifically discussing the lawsuit at issue. Here's the form:

RELEASE OF CONTACT INFORMATION
From time to time, Joe’s Crab Shack (the “Company”) may be asked to provide your contact information, including your home address and telephone number, to third parties. The Company may be asked to provide such information in the context of legal proceedings, including class action lawsuits.

We understand that many employees may consider this information to be private and may not want it released. Accordingly, please indicate whether you consent to the disclosure of your contact information by marking the appropriate box.
__ No, I do not consent to the Company’s disclosure of my contact information to third parties.
__ Yes, I consent to the Company’s disclosure of my contact information to third parties.
__ I would like to be asked on a case-by-case basis whether I consent to the disclosure of my contact information to a particular third party, and my contact information should only be provided if I affirmatively consent in writing.

No sale, said the Court of Appeal, affirming the trial court:

to the extent the right to privacy is based on the release forms, there are strong reasons for not giving effect to those forms. Employees indicating that they did not want their contact information disclosed, or wanted disclosure on a case-by-case basis, were unaware at the time they signed the forms of the pending litigation to enforce their statutory wage and overtime rights through a class action lawsuit. We may presume that, had they known about the litigation, their response on the form would have been different. Additionally, the forms apprised them that their contact information could be disclosed if required by law, so they were aware of the limitation on privacy offered by the forms.

So, nice try. With a proper disclosure about any existing litigation, it's possible such a form could be given more deference by a court. But the courts seem unreceptive to efforts to preclude plaintiffs from contacting employees.

The case is Crab Addison, Inc. v. Superior Court and the opinion is here.

Friday, 26 December 2008

Travels In Pakistan, Part 1-3: The New War, The Old Culture, and Load-shedding

As part of my winter break, I've been travelling to Pakistan over the past two weeks. I kept a series of short observations about what i'm seeing, but haven’t gotten around to putting them up until now so here are the first few:


Pakistan, Entry #1: Winds of War?
There has been a lot of hoopla here lately and talk of a Coming War With India. This comes in the aftermath of the Mumbai terrorist attacks. The Indian government has accused the Pakistani government of, well we’re not quite sure here, except that the terrorists were trained by a group here in Pakistan, and the one remaining terrorist may or may not be a Pakistani citizen. Read More...



The Indian government has held that the Pakistani’s aren’t doing enough to crack down on terrorism, and have included the option of surgical strikes within Pakistan as part of their response. This has the Pakistani public up in arms and the armed forces on high alert. There was an incursion for a few minutes into Pakistani airspace by the Indian Air Force earlier this week which raised the stakes.
The Pakistan Air Force (PAF) scrambled jets over a few major cities, including Lahore, a few days after the Indian incursion, in a show of strength. People were out on their rooftops in Lahore to find out what was going on and if the Indians were attacking. The news channels here are filled with discussions of what might happen between the two nuclear-armed countries.



Coincidentally, I wasn’t in Lahore during the fighter jet flights, but was visiting a PAF base up in the mountains between Lahore and Islamabad. We vistied a relative who's married to a commando in the PDF, who told us that these kinds of airspae incursions happen all the time, but this one was in ain unusual geography and longer than usual. Later in the week, something happened that we don't iknow about, but Pakistan's armed forces were put on high alert, and he wasn't allowed to the leave the base. Some units of the Pakistan army have already been directed to Kashmir.



Most people think that the situation is more serious than it’s been for a while; India recalled all of its 100-plus ambassadors from around the world this week. Supposedly they had done that before the 1971 war as well.



Pakistan has already said that if India attacks, even a surgical strike on uninhabited bases, it would move all of its forces from the Northwest border with Afghanistan to the eastern border with India and respond. The U. S. doesn’t want that because of the ongoing issues on the Afghan border. On the other hand, U.S. drones are constantly making strikes inside Pakistan – killing a few people here, a few people there, so the U.S. army isn’t very popular in Pakistan at the moment either.



Then there's the danger of this escalating into an all out war, whch no one wants. The traditional rivalry between Pakistan and India is alive on this side of the border, and perhaps on the other side as well.



For a moment, we were worried that our flight out of Lahore would get cancelled or delayed. After the initial hoopla though, everything seems to have settled down. As the Chinese say, "May you live in interesting times."



Pak, Entry #2: Lahore Culture and Visit to the Mountains


I had always assumed (like many in the west, I think) that Pakistan is a pretty homogenous place, culturally. After all, it’s over 90% Muslim, and was created in the partition from India in the 1940’s to be a place for many of India’s muslims to have their own homeland.


What i’ve found that Pakistan is a pretty diverse cultural place with a long history. In Lahore, after I arrived, we had dinner (on my birthday) at Coocoos, a well known restaurant in the old city of Lahore. It is an old brothel converted to a high class restaurant in a very historic building, with buddhist, hindu, and islamic artwork and architecture on display.


The history of Lahore reflects many periods, including as one of the key cities of the Moghul empire from the 1400's to the 1700's. Rulers of this empire, which went from Kabul to Delhi, included Shah Jehan, who built the Taj Mahal in India and the Badshahi Mosque in Lahore, which shares a lot of architectural characteristics with it. The Mosque is an impressive site, and has a large open courtyard that feels almost like you’ve entered another world, forgetting the busy city of Lahore while you are inside.


Next to the mosque is one of the sacred tombs of the Sikhs. Next to that is an ancient Shi'ite place of worship. Nearby is the Lahore museum, which has many interesting historical artifacts on display. In Lahore itself, many of the well laid out sections of the city and well-know roads (Mall Road, Canal St) were laid out by the British, who left their mark all over Pakistan and India.



As you move beyond Lahore, more elements of Pakistan’s past come out. I went up into the Salt Range mountains between Islamabad and Lahore and stayed there for a few days. There I visited Ketas, which contains the remains of well-known hindu and buddhist temples. There were at one point, seven temples in one holy site.



The Hindu temple is built around a small lake, which legend has it was formed when the Hindu God Shiva shed tears after the loss of his wife. It is considered one of the holiest sites for Hindus in Punjab. The Buddhist temple, better preserved, contains very narrow stairs which wind around intricate chambers all the way up to the top of the temple, which offers a striking view of the area.


Across the street are Buddhist caves, which were used by Yogis to sit in meditation and contemplation. I had read about caves being used by Yogi's and seekers of enlightenment in ancient times, but have to confess this is the first time I actually saw a cave used for this purpose. I'll definitely write more about what I felt and sensed in these caves and temples in another forum.


This site demonstrates the rich intertwined history of different religions and sects in this area. A Muslim scholar, El Burreni, went to Ketas, learned sanskrit, and is best-known for measuring the radius of the earth from there many hundreds of years ago. The temples themselves were built more than two thousand years ago.
Near there, we visited the tomb of a Sufi, who is considered a local saint, and which peacocks are known to visit. Next to his tomb was a cave where another local saint came and did prayer for forty days and forty nights. The importance placed on tombs of Sufi’s in particular, religious mystics who often wrote and quoted poetry (who espoused a very different view of Islam from the western stereotypes being promulgated via the Taliban, etc. today), was one of the more unexpected bits of Pakistani culture. Having lived in the Middle East in the midst of Islamic countries before, this was almost entirely new but entirely ubiquitous within Pakistan.



On that same trip through the mountains, we also saw some gypsy girls, who looked different than the other residents of the area. They were much fairer skinned and had very pale colored eyes. I was told they came from the northern reaches of Pakistan, and were most likely part of tribal groups that were descendants of the soldiers of Alexander the Great who passed that way on his way to India.



Somewhere up there is the home of the Ismaelis, a sect of Islam led by the Aga Khan. Somewhere near there is an area in the north called "Kafirstan" which consists of an entirely different religion and culture from the rest of Pakistan. Near the border with Afghanistan, in addition to speaking Pashtu, there are the remains of the Gandara civilization, which built many Buddhist temples and statues (included in the Big Buddhas in the mountains that the Taliban so callously blasted down a few years ago).



Being in Pakistan, I'm sensing a rich cultural history with many variations and texture across this land. Pakistan is kind of a cross-roads – linking the civilizations of the Middle East, Central Asia, and the Indian subcontinent with a bit of British history thrown in too. I think one could spend a lifetime studying the very different cultures and traditions that make up this enigmatic land. And I haven't even visited Karachi, the biggest city in Pakistan, or Islamabad, the capital city, on this trip. That’ll have to be on my next trip.



Pak Entry #3: Energy: Load Shedding, CNG, and Industry.


The city of Lahore is very big –with something like 10 million inhabitants, making it one of the most populated cities in the world. There has been a significant increase in the number of cars in Lahore over the past 3-5 years, I’ve been told. In particular, the ability o finance cars has led to a “car boom” here (before you had to purchase it all in cash).


This might explain why the air in Lahore, like other big cities, is kind of polluted. Except, if you actually ride in the cars here, you’ll learn that most cars run on CNG and not petroleum/gasoline. Turns out that this ends up being both cheaper and more environmentally friendly, with very little emissions.
So, if not the cars, where is the pollution coming from? Every now and then, even in an big city like Lahore, you'll see Donkey or Horse-driven carts carrying loads. Certainly not from them!


Turns out the buses, trucks, motorcycles, and rickshaws are the main culprits. You can literally see the smoke rising out of the back of these polluters as they drive around the country. Together they probably equal or exceed the number of cars on the road at any given time.


Energy has been on my mind a lot here. Most of Lahore and the rest of Pakistan is experiencing "Load Shedding" - which are scheduled brown-outs where no electricity goes to a neighborhood. It's pretty annoying, to say the least, but does show how the economy has been growing and how demand has been rising.


Most well-to-do houses, and all businesses, have generators which pick up the slack. I visited our software development offices in Lahore, run by my brother, which has multiple generators.


It's funny that when my brother visited me in California earlier this year, the lights went out, in the heart of Silicon Valley (Moutain View) and stayed out for a few hours. It doesn’t happen often- in fact this was just one of two times I’ve seen it happen in the last year. But he got a kick out of it: " Looks like California is just like Lahore, looks like you have Load Shedding here too!”


Tuesday, 23 December 2008

Court of Appeal: How to Calculate Overtime on a Bonus

The First District Court of Appeal held that Costco properly calculated overtime on a production bonus in Marin v. Costco, opinion here.

I am frequently asked how bonuses and commissions affect overtime calculations. Basically, the "half time" (or whole-time in the case of double-time overtime) is due on the bonus, once the bonus is allocated to the hours that were necessary to generate it. You worked 1000 total hours including 20 overtime hours during a bonus period. The bonus is $2000. The incremental hourly rate is $2000/1000 hours = $2.00 per hour. That is the amount of wages on which no overtime previously was paid. So, you owe: 1/2 * $2.00 per hour * 20 overtime hours worked = $20.00.

Get it? The court of appeal did. That's the federal formula, and the formula the DLSE endorses. The court did not mention that California law endorses the use of federal overtime calculation rules. But it does. The plaintiffs wanted the overtime to be calculated by dividing the bonus over the straight time hours and then paying time and one-half on that figure. That would have resulted in double counting. In addition, it would have ignored the simple fact that the employee had to work all hours to earn the bonus - straight plus overtime.

So, if your eyes are crossed, welcome to wage and hour law. The opinion is linked above. It's got a detailed explanation of the rule and the arguments in favor and against.

Enjoy your holiday!

Greg

Monday, 22 December 2008

New FMLA poster

Merry Christmas from the US DOL. Here's your new FMLA poster, necessary for complying
with the new regulations when they become effective next month.

Merry Christmas / Happy Chanukah / Happy Kwanzaa! Happy New Year, too.

Greg