Friday, October 25, 2013

It's Who You Know: Disability by Association

People who call me usually think they have more rights than they actually do in the workplace. For example, did you know that if you needed to take care of a disabled grandparent, sister or brother, your employer could fire you for it and there would be nothing you could do about it? At least, that was true until recently.

 Protection for people with disabilities is covered in California under the Fair Employment & Housing Act ("FEHA"). The FEHA requires that employees with a disability be given a reasonable accommodation to perform the essential functions of their job, if that wouldn't make an undue hardship for the employer.

The FEHA is a good, reasonable law -- the word "reasonable" is built right into it. So employers aren't required to anything unreasonable at all. Also, if the employer can demonstrate that an accommodation would present an undue hardship, it's off the hook.

Now, FEHA defines someone with a disability as anyone who themselves have a disability, or is associated with someone with a disability (as well as some other circumstances which don't matter here). So does an employee who is associated with someone with a disability (like a disabled grandmother) have a right to a reasonable accommodation at work?

Until recently, this was an unanswered question. Now, though, a friend and colleague, Doug Silverstein of Kesluk & Silverstein, won an appeal before the Court of Appeals addressing this issue.

The plaintiff in that case, Mr. Rope, alleged that he needed to take time off to donate a kidney to his disabled sister. Mr. Rope alleged further that, rather than give him the time off, his employer fired him.

Heartless, yes, but not everything that's heartless is also illegal. Did the employer's alleged actions here break the law?

Yes, said the Court of Appeals. The Court of Appeals ruled that, since FEHA defines "disability" as including someone associated with a disabled person, then that someone by definition has a disability as well, and has a right to a reasonable accommodation (for example, time off from work without getting fired).

Be careful, though, said the Court of Appeals. Ever suspicious of us rapacious plaintiff's attorneys and of all of you rotten employees out there who prepare spurious cases, the court gave us a warning: "Our holding should not be interpreted as a siren song for plaintiffs who, fearing termination, endeavor to prepare spurious cases by talking up their relationship at work to a person with a disability; such relationships do not, by themselves, give rise to a claim for disability discrimination." Somewhere in its opinion, I'm sure the Court of Appeals also warned off employers who, having torn their own hearts from their chests as a still-beating blood-sacrifice on the altar of Capitalism, prepare spurious reasons to terminate their disabled employees. I'm sure it's in there somewhere if I keep reading; I just haven't found it yet.

This opinion really advanced the law in this area (although there are some worrisome parts in there about other issues, but that's a topic for another day). This fills in a huge gap that's existed in the law for quite some time. People with caretaking responsibilities for disabled relatives have placed their livelihoods at risk when they've had to attend to their family members. Hopefully, this decision will give their jobs some needed protection.

Wednesday, October 16, 2013

Deep Duty: When Employers Sue

It doesn't happen often, but I sometimes get calls from workers who are being sued by their former employers. You won't be surprised to learn that these workers are pretty panicked. Getting sued is scary, especially if you're being sued by your former employer. After all, they know a lot about you, they probably have much more money than you do, and the idea of getting sued by them is just downright frightening.

Most of what I see involves former employers claiming that their ex-employee stole "trade secrets" or "confidential information" when they went to work for someone else. The run-of-the-mill case involves the former employer whining that their ex-employee stole their customers or convinced their other employees to work someplace else.

I don't get too concerned when I see these claims. Although I'm sure there's a customer list out there somewhere that's a trade secret, I haven't seen it yet, and California allows you to compete with your old employer for their customers as long as you don't use trade secrets or confidential information in doing so.

For almost 150 years, California has been pretty clear about this: the right to compete fairly outweighs the employer's right to keep its customers. California long ago slammed the door shut on noncompetition agreements, and courts through the years have hammered nails in the door jamb to keep it shut.

Now, though, one California appellate court may have cracked the door open just a tad.

In Angelica Textile Services v. Park, the California Court of Appeal ruled that Angelica Textile Services could proceed with its lawsuit against Mr. Park, its former employee. Angelica claimed that Mr. Park breached his employment contract, as well as his duty of loyalty to the company, all while still employed there.

Did you know that you had a duty of loyalty to your employer? If it sounds one-sided, that's because it is. Your employer has a duty to pay you on time, not discriminate against your or harass you based on any protected activities or protected acts . . .  and that's about it. Your employer doesn't owe you any duty to manage you well, pay you what you're worth (as opposed to what you agreed to take), or serve edible food in the cafeteria. You, on the other hand, have a duty to give your employer your best effort while working there.

Mr. Park's case was a little different, though. He was a Vice-President, so he had an even higher duty of loyalty than most employees. According to Angelica Textile, Mr. Park tried to set up a competing business *while working for Angelica.*

If Mr. Park had waited until he wasn't working for Angelica anymore, he might have been in the clear doing what Angelica accuses him of doing (assuming he didn't use any trade secrets to compete against them). Because he was working for them at the time the alleged actions took place, that could be a breach of duty if the allegations are true. Also, Angelica's attorneys did a good job drafting their allegations so that some of them didn't require that Mr. Park have used trade secrets. This way, they stayed away from the law governing trade secrets (called the Uniform Trade Secrets Act), and got to keep some of their claims.

This case also went a little further than I've seen other cases go. I've argued successfully to courts that soliciting employees isn't illegal, but this case, without any real analysis, just dives in and swims the other direction. This could come to a head if another appeals court explicitly disagrees. That's what brings cases to the attention of the California Supreme Court.

I'll have more to say on anti-solicitation agreements and convenants not to compete in a future post.

Tuesday, October 15, 2013

Punishment: Make 'Em Pay

People frequently ask me about punitive damages, usually when they're trying to figure out how much their case might be worth. I usually tell them I don't consider punitive damages when estimating a case's value, except in very rare circumstances. Here's why.

Juries allow punitive damages when the defendant's actions are so reprehensible that they must be punished. Punitive damages are meant to punish and deter future conduct. Just like in criminal law, there are two types of deterrence in civil law:

  • Specific deterrence: aimed at preventing this same defendant from doing the same bad act again

  • General deterrence: aimed at sending a message to others that they shouldn't do this bad act either

There are two requirements for a plaintiff (the person suing) to be allowed punitive damages:

1. The conduct the plaintiff is suing for must be so bad that the jury believes it must be punished or deterred; and

2. The person who did the conduct must be so highly placed in the organization that the organization itself deserves to be punished and deterred.

Those are pretty stiff requirements. In most employment cases, the conduct either (a) won't be bad enough, or (b) the person taking the action won't be high enough in the organization.

California has some important decisions that make it easier to meet the second requirement. For example, cases have held that even very low-level employees can meet the requirements for punitive damages if they are given complete discretion about handling or investigating complaints, and their conclusions aren't reviewed by anyone higher. California has also held that employees who completely ignore their company's procedures for investigating complaints can expose the company to punitive damages.

Essentially, California has decided that if employers abdicate their responsibilities to investigate workplace complaints of illegal activity, and their low level employees become de facto decisionmakers, the company may expose itself to punitive damages.

Once a bad act has been taken, there are other ways to bring high-level decisionmakers into the mix, and to give the plaintiff access to punitives. But as you can see, it is the rare case when the possibility of punitive damages become a real factor in determining how much a case is worth.

Wednesday, October 9, 2013

Sexual Harassment: It's Only Illegal If I Pay You for It

Can I sexually harass an intern, so long as she's a volunteer and doesn't get paid for her work? Yes, says a New York federal court.

Ms. Lihuan Wang worked as an unpaid intern for Phoenix Satellite Television US in 2009. She sued the company, claiming that its D.C. bureau chief sexually harassed her.

According to Ms. Wang, the bureau chief invited her to his hotel room, claiming that they would talk about hiring her permanently. Ms. Wang claimed that, once she entered his room, the bureau chief threw his arms around her, tried to kiss her, and "squeezed her buttocks with his left hand." Ms. Wang said she refused him, and left the room. According to Ms. Wang, the bureau chief then expressed no further interest in hiring her.

The New York federal judge threw Ms. Wang's case out just last week. The judge stated that, because Ms. Wang wasn't paid for her work, she wasn't protected under New York's anti-sexual harassment laws.

It seems bizarre that unpaid interns, who are usually young and looking for any opportunity available, are not protected from sexual harassment, but this judge ruled that's the case under New York law. He's not the only judge to rule that way. Federal judges across the country have held that unpaid interns have no protection under Title VII, the federal version of the civil rights statutes.

Title VII protects "employees" from discrimination and harassment. It defines an employee as an "individual employed by an employer." No, I'm not kidding. Yet somehow, federal courts have decided that that meaningless definition doesn't include people who work without pay.

Even California has held that public workers who are appointed without pay are not entitled to protection under the Fair Employment & Housing Act, California's version of the civil rights statutes. See Estrada v. City of Los Angeles, 218 Cal.App.4th 143 (2013). Although some California cases have indicated that this would apply to private employers as well as public ones, that matter hasn't actually been decided in California yet.

So what does this mean? Are companies really free to sexually harass their volunteers?

Incredible as it seems, there may certainly be an argument that this is the case. Of course, many times, companies break the law when they use volunteers. California requires people to be paid for their work in most instances. It seems absurd -- and I doubt a court would find -- that a company that was illegally failing to pay its workers and illegally classifying them as volunteers could escape the laws against sexual harassment.

There are also other remedies. I hope that Ms. Wang's attorney also sued for battery, which is an unwanted touching. It doesn't come with as many remedies as the civil rights laws, but it's better than nothing.

If you believe that you have been sexually harassed at work, make sure to contact an employment attorney quickly. There are short time periods that you have to follow, and failing to act within those time periods could cause you to lose your rights forever.

Saturday, October 5, 2013

A Few Words About the Michael Jackson Verdict

You may have been following the trial of Jackson v. AEG Live, in which Michael Jackson's mother Katherine sued AEG Live. Mrs. Jackson claimed that AEG live was negligent when it hired Dr. Conrad Murray to take care of Michael Jackson's medical needs while preparing for an upcoming concert tour.

After following it as it was happening, and reading about it after the result came out, I can say with perfect 20/20 hindsight, that the jury verdict form may have sunk Katherine Jackson's case from the beginning.

If you've followed the trial, then you know that the jury found that AEG Live wasn't liable for Michael Jackson death. Maybe you saw that coming. Maybe you were left wondering, "How the heck did that happen?" After all, Conrad Murray was criminally convicted for manslaughter in connection with Michael Jackson's death. Since the standard for a criminal conviction, beyond a reasonable doubt, is much higher than the "more likely than not" standard for civil liability, how could the jury find AEG not liable?

This trial is a good example of how the justice system works. Whether you agree with the verdict or not, there's a lot to learn from what happened.

When someone sues, they have to have what we call a "legal theory" for why the other person is liable (meaning owes them money). A "legal theory" is a legal reason for explaining why what the other person did violated the law in some way.

So let's break it down. Here, Katherine Jackson sued AEG Live for "negligence." Negligence requires that the plaintiff (the person suing, in this case, Katherine Jackson) demonstrate that (a) AEG live had a duty to use due care, (b) that AEG breached that duty, and (c) that the breach caused whatever happened that Ms. Jackson was suing for.

Mrs. Jackson had to prove each one of those things to win her suit.

Now, juries don't get to decide how they "feel" about a case. They can't make their decisions based on a general "impression" of what happened. They have to go through each requirement for negligence (called the "elements" of negligence) and see if Mrs. Jackson proved her case.

Here, the jury answered "No" to one of the questions they had to answer on the jury verdict form: "Was Dr. Conrad Murray unfit and incompetent to serve as the singer's general practitioner?"

Whatever evidence the jury heard convinced it that, as a general proposition, Dr. Murray was not unfit and incompetent. We heard jurors say afterward that if the question had been, "Was Dr. Murray unethical," the outcome might have been different.

I'm not sure that this question on the jury verdict form accurately reflected the legal requirements for negligence. It's not clear to me at all that Dr. Murray had to be unfit and incompetent for AEG Live to have been negligent in hiring him. Those questions, however, were argued to the court by the plaintiff and the defendant, and this is the verdict form that the court decided would go in front of the jury.

These legal discussions about what instructions jurors get and what questions the jurors have to decide occur in the courtroom, with all the lawyers and the judge present, and away from the jury. The lawyers make their arguments, but the judge ultimately decides what the jury will hear and what the jury will be asked to decide.

Here, maybe the plaintiff and defendant agreed about what would be on the form. We don't know, although all of it is public record, so someone who was curious enough could get hold of the courtroom transcripts and find out.

It does seem, though, that what went on the jury's verdict form figured heavily in the ultimate outcome of the case.

Tuesday, October 1, 2013

You Only *Thought* You had a Constitutional Right To a Jury Trial

California's Constitution guarantees the right to trial by jury, and says that it is an "inviolate right," meaning it's a right that can't be violated.

Oh, but violate it we have. You only thought you had a constitutional right to a jury trial, but if you signed an arbitration agreement when you started working -- or even signed a receipt for an employee handbook with an arbitration agreement in it that you likely didn't read because you were so dang happy at finally getting back to work again -- then you probably sacrificed your right to a jury if things ever go south with your employer.

The good news is that you can still bring a lawsuit when you have an arbitration agreement. That's the end of the good news.

The bad news is that you don't get to have a jury if you're bound by an arbitration agreement. More bad news is that, instead of a jury, you get an arbitrator deciding your case. What's an arbitrator? An arbitrator is a retired judge or a lawyer who gets paid to decide your case. Guess who pays the arbitrator? And guess who pays the arbitrator whenever they get sued, and has financed half of the arbitrator's vacation home and their children's private school educations? Yes, your employer is the only repeat player in the room, and is paying thousands of dollars to the person deciding your case against that same employer. Remember that constitutional right to a jury trial? I wouldn't blame you if you don't.

And the bad news doesn't stop there. When you have a trial by jury, if the judge or the jury get something wrong, you have a right to appeal. You can ask three appellate judges to look at the case and decide whether the trial followed the rules or not. In an arbitration, those same three judges won't even look at whether the arbitration followed the rules or not. Yes, even if the arbitrator didn't follow the rules, the arbitrator's decision will still stand.

By now, you won't be surprised to learn that arbitration results are statistically much worse for employees than jury results. One study by Cornell University professor Alvin Colvin found that plaintiffs (the person suing) win about 43% of the time when they have a jury, but only 21% of the time -- less than half the success rate -- in arbitration. Again, it gets worse. If the employer has other cases with the same arbitrator, the plaintiff's success rate drops to a dismal 12%.

Courts like arbitration because the courts are under-funded, and they get to clear out their calendars by sending cases to arbitration. Employers like arbitration because they almost always win, and when they lose, they don't have to pay nearly as much as a jury would make them pay. Arbitrators like arbitration because they get paid a lot of money. There's only one type of person who loses in arbitration, and that type of person looks a lot like you.

So what can you do about it?

The best thing to do is to call your United States Congressperson and Senators right now, and tell them you want a law that excludes arbitration agreements from employment and consumer contracts. You can let them know you had no idea what you were signing, because you probably didn't, and it's unfair for employers to make people waive their constitutional rights just to feed their families and put gas in their cars.

If you find that you're stuck with an arbitration agreement, there are ways out of it, but the courts are making it harder and harder. A good people's lawyer will, if it makes sense for your case, look for every way legally available to get out of an arbitration agreement. There are some tricks of the trade, but again, overworked trial judges really like arbitration, so the best long-term solution is getting Congress to pass a law that favors working people.

Your right to a jury is an important constitutional right, and it should be there for you when you need it. Arbitration is your employer's best effort to make sure it's not.