Saturday, November 29, 2008

Definitely summary judgment. Definitely.

FEHA does not protect against bad managers, only decisions and actions with a discriminatory basis. “[I]f nondiscriminatory, [the employer’s] true reasons need not necessarily have been wise or correct. [Citation.] While the objective soundness of an employer’s proffered reasons supports their credibility . . . , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally.” (Guz, supra, 24 Cal.4th at p. 358; see also Hersant, supra, 57 Cal.App.4th at p. 1005 [“‘The [employee] cannot simply show that the employer’s decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.’”].)
So said the court of appeal in Mangano v. Verity, Inc. The opinion is here.

Basically, Mangano was a long term employee at Verity. Springsteel, the CFO, was his boss. Springsteel gave Mangano the nickname "rainman" because he had an uncanny memory, and he was a bit quirky. He also called him Tommy, instead of Tom. ::::Wow, that's why they passed anti-discrimination laws. -Ed. :::: Mangano was turned down for a promotion that was given to a clearly qualified outside candidate. When he applied, he complained about the nicknames, and Springsteel never used them again.

Little did Springsteel (or anyone else) know that Mangano later would be diagnosed with Asperger's syndrome, a form of autism. So, he sued for disability discrimination and harassment. The court of appeal upheld summary judgment. I only blogged about the case because of the point made in the quoted language above.

Sunday, November 16, 2008

New FMLA Regulations Are Here

The federal DOL finalized its FMLA regulation revisions. We analyzed earlier drafts here and here. We'll publish a full analysis of the final regulations soon.

To find the new regulations, page down to p. 141 of the PDF, here. The first 140 pages are analysis and commentary. No one can read all that and stay awake. You'll put your eye out. Of course, that could earn you up to 12 weeks of leave....


H/T Ross Runkel

Friday, November 14, 2008

California's Wage Laws Reach Outside State's Borders

Multi-state employers - take note. In today's mobile world, employees travel from place to place, performing duties as the job requires. When an employee lives in Arizona and works all over the place, including California, must the employee be paid under California law?

Well, yes, at least for the work performed in California, according to the Ninth Circuit Court of Appeals. In what appears to be a straightforward application of "choice of law" principles, the court has probably wreaked havoc on payroll systems, human resources departments, and risk managers all over America. So, Oracle employed instructors who taught other companies' employees how to use Oracle software. Some of the employees lived in Arizona or Colorado, but performed some of the work (sometimes in partial weeks), in California.

The Court of Appeals said that when the non-resident employees work in California, California wage and hour law applies. The court did not say when this rule kicks in - what if an employee flies over California, just passes through, visits California for a one-day business trip, etc.? The question mark means: I dunno. But I know what my next article is going to be about.

The case is Sullivan v. Oracle Corp. Here is the opinion.


Saturday, November 01, 2008

Area Blogger Reads Our Blog!

We have confirmation from teh InTeRw3bs that at least one person has read this page. Thanks to The UCL Practitioner for mentioning us in her Blawg Review # 183. And btw, the UCL Practitioner is always worth a read too if you pay any attention to California's Unfair Competition Law.


Election Day is a Vote on the Employee Free Choice Act

This is not a "partisan" blog. We don't care for whom you vote. We represent employers/ management, though. So, we tend to discuss legal developments through a prism of how they affect the employer. And that's. O.K.

I bring up the election because, let's face it, all blogs are about the election. Why should ours be any different? Oh, and it's pretty much a given that the fate of the so-called "Employee Free Choice Act" will turn on which candidate is elected President next Tuesday. It pays to know what the law is, what it will bring to your business, and whether you can live with it. We can certainly live with it here at SV (once we hire enough lawyers to handle all of the work that this law is going to generate for us.) Hint hint.

Essentially, the law (if passed) will make it possible for unions to organize workers without a secret ballot election, merely by signing up a "majority" of the workers in an appropriate bargaining unit. Once the union demonstrates its status as representative, contract negotiations must start within 10 days of the union's request. The parties must negotiate a first contract in 90 days. If the parties fail, then there's mediation. If you're ok with all this so far, then here's the part that might concern you if you are a business owner or manager (and maybe if you're a union member too): if mediation fails, a government appointed arbitrator will decide on a first contract for you. ("Hello, I'm the government arbitrator. I'm here to help. So, I'll be deciding the employees' wages, and what the terms of your contract will be, too!") If you don't believe, me, the link to the proposed law is here.

The private sector workforce is about 7% unionized now. When employers are able to explain to employees what unionization will bring, employers win the election about 50% of the time. But when employers are silent, unions win a vast majority of the time - possibly 80% of the time? If there is no secret ballot, no campaign and a union's representation will be based only on whether union organizers can convince employees to sign an authorization card at a pizza and beer fest down at the local union hall? Well, you do the math.

So, here's a selection of law firm articles on the EFCA. If you seek balance, try Yoga. Or you can Google the AFL-CIO's or union advocates' explanation of the law, too. Again, the text of the current version of the bill, HR 800, is here. There, now you can vote.