Ninth Circuit Upholds FLSA OT Plan

Ponoma Valley Hospital pays nurses one rate for 12 hour shifts, and a higher rate for eight hour shifts. The nurses requested the 12-hour shifts. To accommodate them, the hospital calculated how much it would have to pay to neutralize the payroll effect of the 12-hour shift.

An employee claimed that the differing rates were a subterfuge to avoid paying overtime under the federal FLSA.

The Ninth Circuit held that it is lawful to pay different rates for different shifts. And it is OK to lower a base rate to minimize paying overtime, as long as it is above minimum wage.
The opinion does not address California wage and hour law.

The case is Parth v. Pomona Valley Hospital and the opinion is here.

Filming, Blogging, Novel-ing, and Ranjan has Died

Many of you have written me about not keeping my blog up to date since graduation from Stanford Business School back in June.

Thanks for your gentle nudges – I’m taking your advice and resuming my blog postings, starting with a very long one about what I’ve been up to since business school, and some very sad news I received today about an old friend and one of the biggest movers and shakers in the Indian software industry, Ranjan Das.

But first, what have I been up to?Read More Here...

Turquoise Makes the Wall Street Journal

As many of you know, I have a pretty strong interest in films and film-making (the two don’t always go together).

A few years ago I was an investor and Executive Producer of my first feature film, called Turquoise Rose, shot on the Navajo reservation in Arizona. For me, as usual, I stumbled into this role by helping an aspiring young, determined and talented film-maker, Travis Hamilton, create his first feature film.

Turquoise, shot on an ultra low budget (even by startup or indie movie standards) never made it onto the national circuit, so you probably didn’t see it. But, through the determination of the film-makers it was shown in limited theatrical release across the southwest.

It was a resounding success with its intended audience, Native Americans. It may have been the first feature film whose world premiere was on the Navajo reservation. Sometimes whole families would go to see it, multiple times. Of course, Hollywood rarely sees the merits of a little film like this, so we had to distribute it ourselves.

I also inadvertently found myself as one of very few investors in independent film who made a profit on my very first film investment. I know, Films are Risky Shmisky. So are startups.

So I’m now a member of a group of angel investors, called Film Angels, which invests in independent feature films and is located in the Bay Area. The idea is to use a Silicon Valley style of investing and bootstrapping to put out quality films at low budgets.

The Wall Street Journal wrote about Film Angels recently, and it turns out that Turquoise and my own investments were mentioned very prominently. Here’s a link:
http://blogs.wsj.com/venturecapital/2009/10/12/angel-group-likes-lights-camera-and-action-of-indie-films/

The full version of the article (on WSJ.com) which has to be accessed through Google News also mentions two upcoming films I’m involved with: Raspberry Magic, a small low-budget film about an Indian-American family (www.raspberrymagic.com) [look for it in 2010] and a big budget film series based on the Gap Series, a best-selling science fiction series from author Stephen Donaldson [look for it – well, I’m not really sure when yet].

Sid Searches for Enlightenment

One reason I haven’t blogged much this summer is that most of my writing energy has been directed to finishing a novel I’ve been working on - tentatively titled: “The Enlightenment of Sid: A Modern Quest For the Cure to Sickness, Old Age, and Death”.

It’s nominally about Spiritual Seeking, Buddhism, and Sufism, the mystical branch of Islam.

It follows the adventures of the main character, whose full name is Mohammad Siddhartha O’Leary (and who likes to be called, in fact insists on being called, simply Sid), whose parents were Pakistani and Irish, and who met at a Buddhist meditation seminar. Sid is going through a bit of a mid-life crisis, and finds himself compelled to go on a Quest.

The novel is inspired a bit by the famous novel Siddhartha, by Herman Hesse, about spiritual seeking, and a bit by the novel “The Lost Horizon” by James Hilton, which is about finding a Shangri La and was inspired by the Hunza region of Kashmir in Pakistan.

Sid takes place in the modern world and asks the question, is there really a literal answer to the questions that Buddha went to seek – i.e. is there a literal answer to the problems of Sickness, Old Age, and Death? If so, how would we find it today?

It also poses an important question: Do we need to turn to teachers to find our spiritual path – or is it something we can find on our own?

In the novel, Sid, while learning about the life of the Buddha and the Prophet Mohammad during his own search for enlightenment ends up in the mountains of Kashmir with a surprising dilemma.

There aren’t many books that are about both Buddhism and Islam – for good reason: at a simple glance the religions seem very far apart. But if you look closer, particularly in Pakistan, where tombs of Sufi saints are commonplace, you start to see similarities in mystical/experiential traditions.

Sufism, though not an organized sect of Islam, refers to many sects of Islamists which emphasize personal experience over simple ritual. Sufi sects were led by iconoclasts like Jalaladin Rumi (who is well known in the west for his poetry), Ibn El Arabi (who is not so well known in the west), and Lal Shabhaz Qalander (who is virtually unknown outside of Pakistan), among others.

Anyways, that’s what the novel is about. I felt compelled to start writing it last year when I took a walking tour in Ireland (what a beautiful country) and when I visited Pakistan during December of last year, the novel took an important turn. [Yes, both countries play a big role in the novel].

Now that it’s “done”, when should you expect to be able to read it?

Well, if there’s one industry that recognizes small, quality projects even less than the traditional film industry, and is even slower, it would be the traditional publishing industry...so keep your fingers crossed - i'm sure it'll happen within this lifetime.

Ranjan Is Dead … Long Live Ranjan!

Speaking of religion and Death, I received some news that struck me very hard today. I guess Facebook is good for something other than making money for app developers, since several of my old college friends sent me messages on Facebook.

One of my closest friends from my years at MIT, Ranjan Das, passed away suddenly today in Mumbai, India. I won’t say much about his career in my blog, though he had a very successful one, as outline by this article: http://business.rediff.com/report/2009/oct/22/tech-sap-india-president-das-passes-away.htm

I don’t know the exact situation, other than it had to do with a heart attack. In fact, I haven’t seen Ranjan in quite a few years, and didn't even know that he'd moved back to India.

Nevertheless, I still found the news devastating.

Why?

Not only because Ranjan was such a talented, smart, witty guy ( think about this: in 1992, only two students from the entire country of India, which had a population of some 800 million at the time, were admitted to MIT, and Ranjan was one of them).

Not only because he was a great friend during my college years. During those years, Ranjan was the informal anchor for a rag-tag social group of misfits that included, at different times during our four years at MIT, a Sri Lankan, a White Guy from Jersey, One or more Bangladeshis, Indians, Pakistanis, a Nigerian, a German, a Nepali, and even one ABCD (that would be me as the resident American Born Confused Desi of the group, even though technically I wasn’t born in America and never considered myself confused!).

And it hit me hard not only because I felt guilty that I hadn’t seen my old friend in years. When I moved to the Bay Are a few years ago, I had always planned to get in touch with Ranjan and spend some social time together – rather than only talking about work and software and startups. There were still so many things to discuss and laugh about.

How many other close friends from those years haven’t I seen in ages? How easy it is as we get caught up in our own lives, our careers, that we don’t make time for those who have added something to our lives.

Not only because he was in the same age and to use a cliché (something Ranjan, a creative writer in those days, would never want me to do), it makes us face our own mortality. All of us, my old classmates and I, are approaching that mid-life age of forty. Hearing about Ranjan has really made me pause and think about things.

If death can strike like a lightening bolt so quickly, so unexpectedly, then shouldn’t we make sure we’re spending our lives doing the things we really enjoy, the things we would regret doing if it were to happen to us?

Mainly, though, I was devastated because, though I hadn’t seen him in years, I can still see him so clearly in my mind’s eye that it doesn't seem real. Even though he was nearly forty when he died, I can still still see him so clearly as he was 20 years ago, when we were twenty.

Whether we were having late night conversations about Xeno’s paradox (umm, it’s a physics thing), working on problem sets late at night for differential equations (Ranjan made up his nickname for me when he discovered that while I was pretty good at taking tests, I was never very good at completing problem sets on time. “Hey scholar!” he called me for the rest of our years at MIT, “you can copy my answers for the problem set,” while we called 783-BIRD or Domino’s to order late night food), or taking the bus to Wellesley to try to meet some girls (umm, don’t think we ever really did meet many girls from Wellesley though) or when we were carrying our little brown suitcases filled with home-made computers for our Computer Engineering Class at MIT (6.004) to computer lab in the middle of a snow-filled night in Boston.

The suitcases housed makeshift computers that we built up during the semester – they were called “Maybe” machines. To this day, I can still hear Ranjan singing his rendition of some old song, as we trudged through the snow, hoping our “Maybe” computers would work when we got the lab, “Come on Baby…. Don’t say Maybe…”

At that time, I didn’t realize that Ranjan was a trailblazer who was inspiring me in way inspiring me in many ways.

Amidst a sea of engineers, he was the rare creative, wrote short stories in both his native tongue and in English. When I visited him in the Bay Area a few years after college, he told me about a writing group he was in. A few years later, when I was writing more seriously, Ranjan inspired me to start my own writing group.

Among a wave of scientists who didn’t believe much in religion, he investigated them using logic and clarity of mind, and even got me interested in Buddhism well before I did any exploration of it on my own and (even though he wasn’t a Buddhist).

In a time when I was appreciating only Hollywood blockbusters, Ranjan taught me to appreciate off-beat indie films and quality filmmakers (Barton Fink and Fellini, anyone?).

Of course most of these memories are from long ago and they go on and on. This makes me realize the biggest shame of all, is that though I knew Ranjan quite well as a young man, I didn’t know him in his thirties, a successful business executive.

Even so, I can see him more clearly than ever, in whatever dimension of reality he’s moved on to, amused that all of his old friends have suddenly come out of the woodwork to appreciate him on the news of his death. He would be standing there, making up nicknames for all of us and for all of his recent colleagues, as he sings some rendition of some old song, changing he words to amuse himself, and to comfort his wife and family to not be sad, that he’s OK…he’s just moved on to the next thing…

Ranjan has died, but Ranjan lives on!

Lawful to force retirement at 65

The High Court has handed down its long awaited decision in the Heyday case in which it had been asked to decide whether it was lawful to force a member of staff to retire at 65. The High Court has held that it is lawful under UK law to force a member of staff to retire at 65.

I previously covered this case when it was before the European Court of Justice in March and I have provided a link to this here.

The BBC have also given some coverage of the latest decision before the High Court and this can be viewed here.

If you require further information please do not hesitate to contact me on 0870 756 2929 or gda@hrlegalonline.com

Court of Appeal: Class Certification Denied in Independent Contractor Case

Ali brought a class action on behalf of taxi drivers. The primary claim was that the drivers were misclassified as independent contractors. Ali sought class certification, which the trial court denied.

The Court of Appeal affirmed, on the ground that common issues did not predominate. The company submitted over 40 declarations demonstrating that each putative class member experienced different working conditions and degrees of control by the company. Therefore, the case was not amenable to class treatment.

This case demonstrates that a motion for class certification may be defeated where declarations demonstrate numerous differences among each putative plaintiff's treatment. If the plaintiff cannot generalize about all employees by pointing to a few, a trial court may find that a class action is not suitable.

The case is Ali v. USA Cab LTD and the opinion is here.

Ninth Circuit Limits Federal Anti-Hacking Law

Brekka was an employee of LVRC Holdings, LLC. While employed, he was fully authorized to use the employer's network. He emailed several confidential documents to his personal email account during his employment. The employer discovered this activity after Brekka left LVRC. The employer sued Brekka under the federal Computer Fraud and Abuse Act. The CFAA provides for criminal penalties and a civil action against those who:

intentionally accesses a computer without authorization or exceeds authorized access, and thereby obtains— . . . (C) information from any protected computer if the conduct involved an interstate or foreign communication . . . . 18 U.S.C. § 1030(a)(2). . . .

or who

knowingly and with intent to defraud, accesses a protected computer without authorization, or exceeds authorized access, and by means of such conduct
furthers the intended fraud and obtains anything of value . . . .

18 U.S.C. § 1030(a)(4).

The issue was whether Brekka exceeded authorization during his employment by sending out company information to his personal account. The court of appeals, agreeing with the district court said he did not.

The court held that an employee's self-dealing is not "exceeding" authorization under the CFAA. Rather, a violation occurs only when the employee (1) does not have authorization to access the files or (2) accesses them after authorization is terminated.

This decision does not affect any state law violations or torts that the employer might bring. It underscores the need for employers to have in place effective policies and procedures for limiting computer access, particularly after employees depart.

The case is LVRC Holdings LLC v. Brekka and the opinion is here.

Court of Appeal Explains Safe Harbor Period for Obtaining Sanctions

Most folks who read this blog don't care about sanctions. Like some of the courts. So, I'll make this quick. The employer settled a wrongful termination lawsuit with the employee. The employee tried to reopen the case four years after the settlement. The motion to reopen the case was frivolous.

The defendant filed a motion for sanctions because the plaintiff's motion was frivolous. To bring a motion for sanctions, you have to wait 21 days to see if the other side will withdraw its frivolous papers (called a "safe harbor"). But the court denied the plaintiff's motion too quickly to give the plaintiff the full 21-day opportunity to see the error of his ways and withdraw it. Therefore, the defendant could not successfully bring the motion for sanctions unless it (1) asked the court to delay the hearing on the frivolous motion. Or (2) the defendant could have gone into court and asked the court to shorten the "safe harbor" period. So, the defendant, victim of legally meritless litigation, has to spend more money and time changing the hearing dates too. Grrreatttt!

In fairness to the court of appeal that reversed the award of sanctions, the statute says what it says. But the statute is not a big deterrent to those who file legally frivolous papers. The Legislature probably will now go about amending it. Stop giggling.

The case is Li v. Majestic Industry Hills LLC and the opinion is here.

Ninth Circuit: Subjective Criteria Cannot Be Used at Prima Facie Stage

Nicholson was a pilot for Cape Air. The airline rated her as unqualified to fly certain aircraft because of "CRM" skills, which included her communication and cooperation skills with her crew. She was the only female pilot in the Pacific area of operations. She had a personal relationship with one of the other pilots.

Once disqualified from flying a certain type of plane, she did not bid on other types of aircraft and was fired for job abandonment. She sued for sex discrimination under Title VII.

The court reversed the district court's grant of summary judgment. The court disagreed with the district court's determination that Nicholson was unqualified - an element of the prima facie case:

This court has long held that subjective criteria should not be considered in determining whether a plaintiff is “qualified” for purposes of establishing a prima facie case under McDonnell Douglas. Instead, “[t]he qualifications that are most appropriately considered at step one [of McDonnell Douglas] are those to which objective criteria can be applied . . . .” Lynn v. Regents of Univ. of Cal., 656 F.2d 1337, 1345 n.8 (9th Cir. 1981).

The court also found a genuine issue of material fact regarding pretext. Sometimes the court requires specific evidence when there is only circumstantial evidence (rather than direct evidence of discrimination such as sex-based comments). But here, the court picked from its patchwork of jurisprudence on what amount of evidence is required to show pretext, and settled on its most employee-friendly standard:

To avoid summary judgment at this step, however, the plaintiff must only demonstrate that there is a genuine dispute of material fact regarding pretext.
The amount of evidence required to do so is minimal. “We have held that very little evidence is necessary to raise a genuine issue of fact regarding an employer’s motive; any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder. When the evidence, direct or circumstantial, consists of more than the McDonnell Douglas presumption, a factual question will almost always exist with respect to any claim of a nondiscriminatory reason.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir. 2004)

The court found sufficient evidence of pretext. Under the above formulation of the law, how could it not? In fact, the court said that the evidence supporting the prima face case alone in this case would have been sufficient.

I'm pointing this out because it's time for the Ninth Circuit to articulate a clear standard regarding summary judgment in discrimination cases. Here's what the court said in another case in 2006:

To establish that a defendant's nondiscriminatory explanation is a pretext for discrimination, plaintiffs may rely on circumstantial evidence, which we previously have said must be "specific" and "substantial" to create a genuine issue of material fact. n7 Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir. 1998) ("Such [circumstantial] evidence of 'pretense' must be 'specific' and 'substantial' in order to create a triable issue with respect to whether the employer intended to discriminate on the basis of sex.").

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 (9th Cir. Or. 2006).

The court in Cornwell then went on to note that Godwin may have been undermined by later decisions:

Although there may be some tension in our post-Costa cases on this point -- several of our cases decided after Costa repeat the Godwin requirement that a plaintiff's circumstantial evidence of pretext must be "specific" and "substantial" n9 -- this panel may not overturn Ninth Circuit precedents in the absence of "intervening higher authority" that is "clearly irreconcilable" with a prior circuit holding, see Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en banc), because that power is generally reserved to our en banc panels. See Miller, 335 F.3d at 899; United States v. Hayes, 231 F.3d 1132, 1139-40 (9th Cir. 2000); United States v. Washington, 872 F.2d 874, 880 (9th Cir. 1989). Whether or not the precedential weight of Godwin has been diminished to any degree by the Supreme Court's decision in Costa, or by our decision in McGinest, we conclude that Cornwell's evidence is sufficient to create a genuine issue of material fact regarding the motives for his demotion under either the Godwin standard which would require "specific" and "substantial" circumstantial evidence of pretext, or the McGinest standard, which would not.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir. Or. 2006).

The Cornwell court seems to be politely suggesting that there is a patchwork of decisions and they cannot really be reconciled without an en banc intervention, followed by Supreme Court clarification of its prior holdings. Just sayin'.

The case is Nicholson v. Hyannis Air Service, Inc. and the opinion is here.