Governor Jerry Brown just signed SB 863, a big workers' compensation reform package, supported by the Cal. Chamber.
We don't practice in this area, but we know workers' comp. premiums are expensive for employers and administration is employers' responsibility. So, the bill is here. If I see a good summary I will post it as well.
Much of the bill addresses how the workers' compensation appeals board and medical providers will go about their business. The Cal Chamber believes it will result in improved efficiency and reduced fraud. See here. I hope so!
Wednesday, 19 September 2012
Saturday, 8 September 2012
Currently Obsessed.
Lovelies,
Once school starts, the homework craze ensues, and my freetime falls away to nothing. I've desperately wanted to spend hours upon hours posting new outfits, NEW HUNTER BOOTS (as you can tell, I'm very excited), and new adventures on here. Falling behind means I have so much I need to cover.... so many outfits to photograph...it's pretty frustrating. Still, this post is a small precursor of what's to come later once my schedule decides to become blog friendly.
Above are some of my favorite things in my wardrobe at the moment. I'll break it down by item for you, just to make this SUPER concise. (As you can tell, I'm practicing SAT vocabulary).
1. Boutique Nine Heels- Towards the end of summer, I was searching for a pair of black pumps to replace my old pair (seen in my Junior Prom post). I was hesitant to purchase these at first, due to the fact that they were suede. I tried them on, just for kicks ... Overall, I was more than satisfied. Their shape is very geometric, and references both the YSL FW 2008 show's pumps as well as a pair of Miu Miu pumps I saw recently in Nordstrom. I've yet to wear them out yet, but I totally admit to parading around the house with them on when no one is home. ;)
2. Bond no. 9, Madison Square Park- I originally saw this perfume in an index of a spring Teen Vogue issue. It was prohibitively expensive, and I couldn't muster the idea of shelling out a great amount of money for a perfume. However, after rationing small viles of the perfume from Saks to ensure they would last for a calculated time, I realized it was time to save up and buy the real thing. I bought this back in the Spring, during my trip to NYC. It's definitely become my signature perfume; I wear it almost everyday. Some of the top notes include grape hyacinth, huckleberry and prairie dropseed grass.
3. Marc Jacobs Ballet Flats- I really wanted a pair of dark blue ballet flats for fall, but couldn't find practically ANYTHING until I looked on Zappos. I spotted these babies...and...well, it was a match made in heaven. ;)
4. Chanel Gloss and Lipstick- If there is one beauty product I will splurge on, it's lipgloss and lipstick. I actually bought this en route to our flight gate before I went to Europe, as I had completely forgotten to pack lip products for the trip. (How this is even possible, I don't even know.) Chanel glosses and lipsticks have the greatest consistency, and I honestly believe they're worth the price. Plus, the packaging is ultra-iconic...simply irresistible. :)
Hope everyone is having an EXCELLENT school year so far.
XOXO,
Em
Once school starts, the homework craze ensues, and my freetime falls away to nothing. I've desperately wanted to spend hours upon hours posting new outfits, NEW HUNTER BOOTS (as you can tell, I'm very excited), and new adventures on here. Falling behind means I have so much I need to cover.... so many outfits to photograph...it's pretty frustrating. Still, this post is a small precursor of what's to come later once my schedule decides to become blog friendly.
Above are some of my favorite things in my wardrobe at the moment. I'll break it down by item for you, just to make this SUPER concise. (As you can tell, I'm practicing SAT vocabulary).
1. Boutique Nine Heels- Towards the end of summer, I was searching for a pair of black pumps to replace my old pair (seen in my Junior Prom post). I was hesitant to purchase these at first, due to the fact that they were suede. I tried them on, just for kicks ... Overall, I was more than satisfied. Their shape is very geometric, and references both the YSL FW 2008 show's pumps as well as a pair of Miu Miu pumps I saw recently in Nordstrom. I've yet to wear them out yet, but I totally admit to parading around the house with them on when no one is home. ;)
2. Bond no. 9, Madison Square Park- I originally saw this perfume in an index of a spring Teen Vogue issue. It was prohibitively expensive, and I couldn't muster the idea of shelling out a great amount of money for a perfume. However, after rationing small viles of the perfume from Saks to ensure they would last for a calculated time, I realized it was time to save up and buy the real thing. I bought this back in the Spring, during my trip to NYC. It's definitely become my signature perfume; I wear it almost everyday. Some of the top notes include grape hyacinth, huckleberry and prairie dropseed grass.
3. Marc Jacobs Ballet Flats- I really wanted a pair of dark blue ballet flats for fall, but couldn't find practically ANYTHING until I looked on Zappos. I spotted these babies...and...well, it was a match made in heaven. ;)
4. Chanel Gloss and Lipstick- If there is one beauty product I will splurge on, it's lipgloss and lipstick. I actually bought this en route to our flight gate before I went to Europe, as I had completely forgotten to pack lip products for the trip. (How this is even possible, I don't even know.) Chanel glosses and lipsticks have the greatest consistency, and I honestly believe they're worth the price. Plus, the packaging is ultra-iconic...simply irresistible. :)
Hope everyone is having an EXCELLENT school year so far.
XOXO,
Em
Monday, 3 September 2012
Court of Appeal: Rare Opinion on Inside Sales Exemption
Tyrone Muldrow and a class of recruiters sued their employer, Surrex Solutions Corporation, for unpaid overtime, meals and breaks. The trial court held that the employees were exempt undre the "inside sales exemption" and that the company had adequately provided meals and breaks. The Supreme Court issued a "grant and hold" order pending the decision in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1037.
On remand after Brinker, the Court of Appeal reaffirmed its earlier decision. It's blogworthy because of the discussion of the "inside sales exemption" under the wage order .
The exemption is contained in both wage order 4 and wage order 7. The court did not address which wage order applies, but quoted from wage order 7:
Under federal law, this is known as the "inside sales" or "7(i)" exemption.
For the above exemption to apply, the employees had to be "selling" a product or service.
The court then decided that the compensation the recruiters received were "commissions" because they were sufficiently related to the sales price - the revenue the business received for placements:
So, the court decided that the trial court was correct because the inside sales exemption applies.
There are a couple of things the court did not decide that might have affected the outcome. First, the court did not appear to actually decide if Wage Order 4 or 7 is the correct one. The court quoted from Wage Order 7, which applies to all employees working in the "mercantile" industry. The definition of "mercantile" applies to the sale of goods, not recruiting agencies. From the Wage Order: "'Mercantile Industry' means any industry, business, or establishment operated for the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities."
Rather, Wage Order 4 applies to occupations such as office workers, if an industry order does not apply.
The applicable Wage Order actually does not affect the exemption under California law because that exemption is contained in both Wage Order 4 and 7. (The Court should have cited the correct one, though). The issue, though, is that the federal "7(i)" exemption applies only to "retail" establishments. In fact, the applicable Department of Labor regulations specifically exclude employment agencies from the definition of a retail establishment. See regulation here. I can't say for certain that Surrex is not a "retail" establishment under federal law, but someone probably should take a look at that issue if he/she hasn't already.
This is one of the few instances in which California law is less generous than federal law. Although an employee may be exempt under California law, if an employee is not "exempt" under federal law, then federal law will require overtime for work performed over 40 hours in a work week. I may have missed something, but the court's opinion does not seem to address federal law, or the wage order issue. Yet, the court does acknowledge the existence of the 7(i) exemption at footnote 14 of the opinion. Annnyyyway, I may be nuts, or someone has some splaining to do, or both! The message to our dear readers remains: Please do not apply the inside sales exemption unless you consider both state and federal law.
The case is Muldrow v. Surrex Solutions Corp. and the opinion is here.
On remand after Brinker, the Court of Appeal reaffirmed its earlier decision. It's blogworthy because of the discussion of the "inside sales exemption" under the wage order .
The exemption is contained in both wage order 4 and wage order 7. The court did not address which wage order applies, but quoted from wage order 7:
California Industrial Welfare Commission (IWC) Wage Order No. 7-2001 exempts from this statutory overtime compensation requirement "any employee whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions." (Cal. Code Regs., tit. 8, § 11070, subd. (3)(D).)
Under federal law, this is known as the "inside sales" or "7(i)" exemption.
For the above exemption to apply, the employees had to be "selling" a product or service.
Appellants' primary job duty was to recruit "candidates" for employer "clients." Surrex's clients would place "job orders" with Surrex and appellants would search for potential candidates to fill the job orders. Appellants would use various resources to find candidates, including an internal database that Surrex maintained and various "on-line job boards."The court decided that these recruiters were "selling" the recruiting services, and that the other activities they engaged in were part of the sales process.
The court then decided that the compensation the recruiters received were "commissions" because they were sufficiently related to the sales price - the revenue the business received for placements:
The court also decided that the commission plan was "bona fide" because the commissions regularly exceeded draw.
the sole argument that appellants offer to support their contention that the term "commissions" in the commissioned employees exemption (Cal. Code. Regs., tit. 8, § 11070, subd. (3)(D)) should be construed as excluding commission systems such as Surrex's, is that such a formula is "too complex." Appellants' contention that the Surrex's commission system is "too complex" is neither factually accurate nor legally relevant. The formula was clearly stated in the employees' employment agreements and, in most cases, could be calculated simply by knowing the candidate's "bill rate" and "pay rate" (both of which the consulting service managers, themselves, negotiated).15 In any event, appellants fail to cite any authority for the proposition that complexity is, or should be, a factor in determining whether a compensation scheme constitutes a commission under relevant California law.
So, the court decided that the trial court was correct because the inside sales exemption applies.
There are a couple of things the court did not decide that might have affected the outcome. First, the court did not appear to actually decide if Wage Order 4 or 7 is the correct one. The court quoted from Wage Order 7, which applies to all employees working in the "mercantile" industry. The definition of "mercantile" applies to the sale of goods, not recruiting agencies. From the Wage Order: "'Mercantile Industry' means any industry, business, or establishment operated for the purpose of purchasing, selling, or distributing goods or commodities at wholesale or retail; or for the purpose of renting goods or commodities."
Rather, Wage Order 4 applies to occupations such as office workers, if an industry order does not apply.
The applicable Wage Order actually does not affect the exemption under California law because that exemption is contained in both Wage Order 4 and 7. (The Court should have cited the correct one, though). The issue, though, is that the federal "7(i)" exemption applies only to "retail" establishments. In fact, the applicable Department of Labor regulations specifically exclude employment agencies from the definition of a retail establishment. See regulation here. I can't say for certain that Surrex is not a "retail" establishment under federal law, but someone probably should take a look at that issue if he/she hasn't already.
This is one of the few instances in which California law is less generous than federal law. Although an employee may be exempt under California law, if an employee is not "exempt" under federal law, then federal law will require overtime for work performed over 40 hours in a work week. I may have missed something, but the court's opinion does not seem to address federal law, or the wage order issue. Yet, the court does acknowledge the existence of the 7(i) exemption at footnote 14 of the opinion. Annnyyyway, I may be nuts, or someone has some splaining to do, or both! The message to our dear readers remains: Please do not apply the inside sales exemption unless you consider both state and federal law.
The case is Muldrow v. Surrex Solutions Corp. and the opinion is here.
Saturday, 1 September 2012
Remember to vote
No, no....not that vote. The ABA is collecting its Top 100 law blogs. Over 5 years of bloggery and over 500 posts, and we've never won a Webbie, an Emmy or even a scratch ticket.
Please remedy this oversight by voting for your favorite blogs, and this one too, at the ABA's site.
Thanks!
Court of Appeal: No Waiver of Arbitration and No Class Action Either
The Court of Appeal overturned a trial court's denial of the employer's motion to compel arbitration. Here are some key points:
1. The Court of Appeal expressly recognized that an arbitration agreement that is silent regarding class actions cannot be read to require classwide arbitration.
3. Like pretty much every other court, the court here refused to follow the National Labor Relations Board's decision in DR Horton (holding that arbitration agreements cannot require class action waivers unless the employee can bring a class action in court).
The decision is Reyes v. Liberman Broadcasting and the opinion is here.
DGV
1. The Court of Appeal expressly recognized that an arbitration agreement that is silent regarding class actions cannot be read to require classwide arbitration.
[A] party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so. . . . As the Arbitration Agreement explicitly covers the type of claims that are the subject of Reyes‘s lawsuit and provides only for bilateral arbitration, there is no contractual basis for concluding the parties agreed to submit to class arbitration. Therefore, we conclude that the Arbitration Agreement does not authorize class arbitration.2. The court held that the employer did not waive the right to arbitrate, even though it did not cite the arbitration agreement in the answer, and though it conducted lots of discovery in court. The reason is that the employer likely would not have prevailed on a motion to compel arbitration until the U.S. Supreme Court issued its decision in AT&T Mobility v. Concepcion (2011) 563 U.S. ___ [131 S.Ct. 1740, 179 L.Ed.2d 742]. Therefore, the employer did not "waive" the right to arbitrate, when seeking arbitration would have been futile.
3. Like pretty much every other court, the court here refused to follow the National Labor Relations Board's decision in DR Horton (holding that arbitration agreements cannot require class action waivers unless the employee can bring a class action in court).
The decision is Reyes v. Liberman Broadcasting and the opinion is here.
DGV
Monday, 27 August 2012
Court of Appeal Strikes Down Non-Compete Related to Sale of Business
Maas sold his company, Crave, to Handleman. As part of the sale transaction, Maas signed a stock purchase agreement that prohibited Maas from competing with Handleman for three years from the sale.
Maas became a Handleman employee. He also signed an employment agreement with Handleman that contained another non-compete, barring him from competing for one year from the termination of his new employment with Handleman or from the expiration of the three-year non-compete, whichever came first. That employment agreement also contained a non-solicitation clause.
Maas stayed with Handleman three years, thereby satisfying the non-compete in the purchase agreement. But then he went to work for a new company, violating the non-compete in his employment contract. Handleman sued, claiming that the one-year non-compete was part of the sale transaction and was in consideration for the "good will" value of Crave.
Fillpoint bought the Crave assets from Handleman and sued Maas and others for violating the non-compete agreement.
Most people who read this blog know that most non-competition agreements are unenforceable under California law. But there are exceptions. One exception applies to the sale of a business to protect the buyer. See Business and Prof. Code Section 16601.
The court of appeal noted that the three-year covenant in the purchase agreement satisfied the exception contained in Section 16601, as it protected Handleman's purchase of Crave. Fillpoint, however, argued that the employment agreement's further non-compete was part of the same transaction. The court agreed that the purchase agreement and employment agreement must be read together. But the court struck down the employment agreement's non-competition provision.
For one thing, Fillpoint argued that the employment agreement's non-compete served a different purpose from the purchase agreement's non-compete. The latter applied to Maas as a shareholder and the former as a Handleman employee. The court viewed that argument as a concession that brought the non-compete outside Section 16601. Moreover, the court decided that the employment agreement non-compete was way too broad and precluded Maas from pursuing a profession regardless of Crave's goodwill.
So, according to the court's decision in Fillpoint v. Maas, non-competes associated with the sale of a business cannot have a "latent tail" that becomes effective years after the sale. The opinion is here.
Maas became a Handleman employee. He also signed an employment agreement with Handleman that contained another non-compete, barring him from competing for one year from the termination of his new employment with Handleman or from the expiration of the three-year non-compete, whichever came first. That employment agreement also contained a non-solicitation clause.
Maas stayed with Handleman three years, thereby satisfying the non-compete in the purchase agreement. But then he went to work for a new company, violating the non-compete in his employment contract. Handleman sued, claiming that the one-year non-compete was part of the sale transaction and was in consideration for the "good will" value of Crave.
Fillpoint bought the Crave assets from Handleman and sued Maas and others for violating the non-compete agreement.
Most people who read this blog know that most non-competition agreements are unenforceable under California law. But there are exceptions. One exception applies to the sale of a business to protect the buyer. See Business and Prof. Code Section 16601.
The court of appeal noted that the three-year covenant in the purchase agreement satisfied the exception contained in Section 16601, as it protected Handleman's purchase of Crave. Fillpoint, however, argued that the employment agreement's further non-compete was part of the same transaction. The court agreed that the purchase agreement and employment agreement must be read together. But the court struck down the employment agreement's non-competition provision.
For one thing, Fillpoint argued that the employment agreement's non-compete served a different purpose from the purchase agreement's non-compete. The latter applied to Maas as a shareholder and the former as a Handleman employee. The court viewed that argument as a concession that brought the non-compete outside Section 16601. Moreover, the court decided that the employment agreement non-compete was way too broad and precluded Maas from pursuing a profession regardless of Crave's goodwill.
So, according to the court's decision in Fillpoint v. Maas, non-competes associated with the sale of a business cannot have a "latent tail" that becomes effective years after the sale. The opinion is here.
Thursday, 23 August 2012
Employment Law Blog Developments
I hope you are finding our posts useful and informative and that they help you whether you be an employer or employeee.
Given my busy practice spanning London, Manchester and Edinburgh and everywhere inbetween its not often I get to tell you a little more about my firms capabilities and achievements. As you might know, I am an experienced Employment Lawyer and experienced advocate before the Employment Tribunals and Employment Appeal Tribunals. I have been involved with a number of matters of late which have been successfully brought to conclusion.
I recently acted for a Pharmaceutical Company based in the South of England - the matter involved a sex discrimination claim arising out of maternity. The matter involved drafting the questionnaire and defending the Employment Tribunal proceedings. This was one such matter that involved a very robust defense and the tactical position of offering no money. The matter was withdrawn by the claimant without any settlement from our client. Naturally given that the case had no reasonable prospects of success, our client was no doubt very relieved and happy with the outcome.
I have also recently acted for a Claimant who was subjected to a long sustained campaign of sexual harassment and eventually her unfair dismissal. The matter was incredibly complex dealing with four potential respondents and the overlap between the Sex Discrimination Act 1975 and the more recent Equality Act 2010. It also dealt with the issue of potential third party harassment and furthermore the vicarious liability of employers in such circumstances. This involved two hearings and eventually the parties lawyers including myself reaching an amicable and positive solution for all. It did appear for a while however that the parties were so far removed, a chance of settlement (which was in everyone's interests) was becoming less likely. It is in these moments when the tenacity of your legal representation should come to the fore driving forward towards the best possible result.
EMPLOYERS
For Employers we have a dedicated Helpline where we can be contacted to discuss in brief form the issues you might be facing. I am available directly to speak to you on 07716 346 708 - I am available 24/7/365 via email on gda@garydarmstrong.com
Please feel free to follow this blog and or interact with me on social media.
Given my busy practice spanning London, Manchester and Edinburgh and everywhere inbetween its not often I get to tell you a little more about my firms capabilities and achievements. As you might know, I am an experienced Employment Lawyer and experienced advocate before the Employment Tribunals and Employment Appeal Tribunals. I have been involved with a number of matters of late which have been successfully brought to conclusion.
I recently acted for a Pharmaceutical Company based in the South of England - the matter involved a sex discrimination claim arising out of maternity. The matter involved drafting the questionnaire and defending the Employment Tribunal proceedings. This was one such matter that involved a very robust defense and the tactical position of offering no money. The matter was withdrawn by the claimant without any settlement from our client. Naturally given that the case had no reasonable prospects of success, our client was no doubt very relieved and happy with the outcome.
I have also recently acted for a Claimant who was subjected to a long sustained campaign of sexual harassment and eventually her unfair dismissal. The matter was incredibly complex dealing with four potential respondents and the overlap between the Sex Discrimination Act 1975 and the more recent Equality Act 2010. It also dealt with the issue of potential third party harassment and furthermore the vicarious liability of employers in such circumstances. This involved two hearings and eventually the parties lawyers including myself reaching an amicable and positive solution for all. It did appear for a while however that the parties were so far removed, a chance of settlement (which was in everyone's interests) was becoming less likely. It is in these moments when the tenacity of your legal representation should come to the fore driving forward towards the best possible result.
EMPLOYERS
For Employers we have a dedicated Helpline where we can be contacted to discuss in brief form the issues you might be facing. I am available directly to speak to you on 07716 346 708 - I am available 24/7/365 via email on gda@garydarmstrong.com
Please feel free to follow this blog and or interact with me on social media.
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