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Anschutz Entertainment Group (AEG) contracted with Levy Premium Foods to manage the food and beverage services at several entertainment venues located in southern California. Levy, in turn, contracted with Canvas Corporation to provide 1099 contract laborers who sold food and beverages at AEG venues. Neither AEG nor Levy had any direct contract with the laborers. Nevertheless, in 2013, several laborers filed a wage and hour class action against AEG, Levy and Canvas for failure to pay minimum wage and willfully misclassifying them as independent contractors in violation of Labor Code section 226.8. They argued that because AEG and Levy exercised direct control over their work they were “joint employers” along with Canvas and also liable for wage and hour violations as well as civil penalties for up to $25,000 for each of the 4100 potential class members for misclassifying them as independent contractors.

Labor Code Section 226.8, subdivision (a)(1) states: “(a) It is unlawful for any person or employer to engage in any of the following activities: [¶] (1) Willful misclassification of an individual as an independent contractor.” “Willful misclassification” means “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” (§ 226.8, subd. (i)(4).) It unlawful for an employer to “engage in” the act of “voluntarily and knowingly misclassifying [an] individual as an independent contractor.”

The trial court found that the inclusion of the words “engage in” demonstrated a legislative intent to limit the statute to employers who made the actual decision to misclassify. In effect, the court equated the term “engage in” with the term “commit,” concluding that subdivision (a)(1) was limited to employers who commit the act of willful misclassification. The appellate court noted that the ordinary definitions of “commit” and “engage” are not equivalent. “Commit” is commonly defined to mean “to do, perform.” “Engage” has a broader meaning, commonly defined to mean to “involve oneself; to take part in” or “to participate.” Thus, an individual or entity can “engage” in an act without actually having “committed” that act.

“We presume,” said the court, “the Legislature intended to penalize a broader class of employers that includes those who, through their acts or omissions, have knowingly participated or involved themselves in the willful misclassification decision. As applicable here, a joint employer who knowingly acquiesces in a co-joint employer’s decision to willfully misclassify their joint employees has necessarily “involved” itself in that misclassification decision.”

So, what does this mean for joint employers in this situation? It means a joint employer may not be held liable under section 226.8 based solely on the acts or omissions of a co-employer. To obtain civil penalties under section 226.8 plaintiffs must demonstrate not only that AEG and Levy were joint employers, but also that they each engaged in the act of voluntarily and knowingly misclassifying the plaintiffs. The mere fact that Canvas engaged in such conduct is insufficient. Furthermore, individual employees do not have a private cause of action top collect these penalties other than by way of a Private Attorney General Action (PAGA) on behalf of California.

What about the claims for unpaid wages and overtime? Each joint employer is liable to its employees for unpaid minimum wage and overtime compensation because Labor Code Section 1194 imposes a duty on every employer, whether singular or joint, to ensure its employees receive minimum wage and overtime compensation.

So, once again, here is a lesson learned the hard way for these defendants. True independent contractors hired to perform duties incidental to the business of the employer is a rarity. Be informed.  Call a knowledgeable employment attorney before this issue becomes a problem.

Phillip J. Griego & Associates
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
East Bay 925-364-4655

Original article by Phillip J. Griego of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

In January I posted an article about Augustus v. ABM Securities.  In that case, the appellate court held that employees were provided compliant rest breaks even though the employees were technically “on-call” and had to carry pagers and/or radios during their breaks.  Well, the California Supreme Court granted review in the case.  Therefore, employers are cautioned that relying on ABM Securities as binding authority may be risky until the Supreme Court decides the case.

The Supreme Court’s decision will take several months at the least.  We’ll keep track of the case and post a new article once the Supreme Court issues its decision.  In the meantime, you should review your rest and meal break policies to ensure they comply with the law.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

East Bay 925-364-4655

Original article by Robert E. Nuddleman, former associate of Phillip J. Griego & Associates.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Those of you working or doing business in San Francisco may see an increase in employee wages tomorrow.  Effective May 1, 2015, employees who work 2 or more hours per week in San Francisco are entitled to receive at least $12.25 per hour.

Employers are also required to post the new San Francisco Minimum Wage Poster, which warns:

Under the Ordinance, employees who assert their rights to receive the City’s minimum wage are protected from retaliation. Employees may file a civil lawsuit against their employers for any violation of the Ordinance. The City can investigate possible violations, shall have access to payroll records, and can enforce the minimum wage requirements by ordering reinstatement of employees, payment of back wages unlawfully withheld, and penalties

San Francisco employers are also required to post:

Other locales may have their own county- or city-specific posters, all of which are in addition to any state and/or federally mandated posters.

You can download the posters individually, or contact an organization such as the California Chamber of Commerce to get all the posters from one place.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

East Bay 925-364-4655

Original article by Robert E. Nuddleman, former associate of Phillip J. Griego & Associates.

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Monterey, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

Like most people, I occasionally receive unwanted email solicitations from companies that want to sell me this or that.  Some of them slip through my spam-filter, but I’m able to recognize and delete them fairly quickly.  One solicitation aimed specifically for lawyers caught my eye.  The email was promoting an article on being “well-liked.”  With the abundance of lawyer jokes equating attorneys with lower-life forms, the email caught my eye.  In particular, the email pointed out that collaborating and being well-liked are two important factors in advancing one’s career.

The email had the following advice:

1) Do not get actively involved in cliques

2) Never saying anything bad about any co-worker, no matter what

3) Make your superiors feel important

4) Listen, do not talk too much, and ask about others

5) Participate in group solidarity activities

6) Keep your head down and smile

As I thought about the email, I saw that the suggestions were not just applicable to law offices.  They could apply regardless of the size of your company or the industry you work in.  Not all of the suggestions are necessarily going to work every time, and in some instances it could be counter-productive, but they are good principles to consider.

Although the email piqued my interest, it wasn’t saved from my waste basket, but the concept is worth passing along.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

East Bay 925-364-4655

Original article by Robert E. Nuddleman, former associate of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Monterey, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

I’m excited to be able to work with the Professional Fiduciary Association of California next week at their 20th annual education conference San Francisco, CA.  PFAC is a wonderful organization that provides continuing education and promotes minimum standards in the administration of conservatorships, guardianships, trusts, estates and durable powers of attorney.  I’ve had the pleasure of working with several of their members and their clients to develop strategies for in-home care and assistance with elderly and disabled clients in conjunction with third-party care agencies.  I’m always impressed by their level of professionalism and commitment.

In the past, I’ve conducted seminars for PFAC regarding the difference between independent contractors and employees, how to employ caregivers correctly, and employment law updates.  This year, I will be co-presenting a 3-hour intensive seminar called: Hiring, Employing, Supervising, and Disciplining Workers.  I will also conduct a breakout session about Workplace Policies and Procedures for Caregivers where I can share some tips regarding caregiver rights and employer responsibilities.  This year’s conference will also include roundtable discussions for a more direct educational experience, where I will discuss how to handle workplace performance and discipline issues.

I’m really looking forward to this year’s conference.  If you are attending the conference, please look for me and say, “Hi.”

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

East Bay 925-364-4655

Original article by Robert E. Nuddleman, former associate of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

One of the great things about the practice of law is that it is never dull or boring. A new unpublished case confirms this opinion. Plaintiff and appellant Marshel Copple filed a case under the California Fair Employment and Housing Act (FEHA) alleging religious discrimination and harassment, failure to accommodate religious practices, retaliation based on his religion, and constructive discharge for his religious practices. Copple asserted California Department of Corrections and Rehabilitation’s requirement that he work overtime violated a tenet of his religion that he sleep at least eight hours per day.   And what religion was that?—Sun Worshipping Atheism — a religion he created and of which he is the only member. The appellate court affirmed the trial court’s entry of summary judgment against Mr. Copple. The court’s reasoning is instructive.

  1. Sun Worshipping Atheism is Not a Religion as Defined Under FEHA.

The court’s treatment of this issue reminds me of the obscenity case of Jacobellis v. Ohio (1964), wherein Justice Potter Stewart wrote in his short concurrence that “hard-core pornography” was hard to define, but that “I know it when I see it, and the motion picture involved in this case is not that.”[1]  Relying on earlier cases the court identified three “objective guidelines” to “make the sometimes subtle distinction between a religion and a secular belief system” for FEHA purposes.

First, a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters. Well what could be more clear? Ask the court:

Sun Worshipping Atheism does not “address fundamental and ultimate questions having to do with deep and imponderable matters.” Rather, it deals with living a healthy lifestyle. The sun is worshipped because there are health benefits that derive from it. Plaintiff fashioned Sun Worshipping Atheism after reviewing scientific data to determine healthy practices that have a positive effect on the mind, body, and soul, which he claims are all the same thing. Plaintiff’s statement that his beliefs address “[t]he nature of the universe, nature of human beings, what we need to do to be moral,” is a mere conclusion, insufficient to prove this element.

Second, a religion is comprehensive in nature; it consists of a belief-system as opposed to an isolated teaching.

Sun Worshipping Atheism is not comprehensive and does not express a full set of beliefs. As discussed above, its list of practices reveal that it deals with living a healthy lifestyle, “mind-body wellbeing,” based on scientific facts synthesized by plaintiff. These include eating well, exercising, and getting enough sleep. This is to “get the most out of your human and social function as your [sic] conscious of it now.”

Third, a religion can often be recognized by the presence of certain formal and external signs.

Sun Worshipping Atheism lacks any outward signs. Although not conclusive, this is a strong indication the belief system is not a religious creed. There are no rituals, services, or religious holy days, nor is there any structure where its beliefs are observed. Moreover, there is no hierarchy or organization, not even an informal one. In fact, plaintiff is the only member.

  1. Because Sun Worshipping Atheism is Not a Protected Religion, None of Plaintiff’s Causes of Action survived.

The court concluded that Sun Worshipping Atheism is a “personal philosophy . . . and a way of life” under FEHA’s definition. Purely moral or ethical beliefs that are held with the strength of religious convictions may not qualify for protection under the FEHA. Rather, the requires that the belief, observance, or practice occupy a place in the employee’s life of importance parallel to that of traditionally recognized religions—something more than a strongly held view of right and wrong.

This case illustrates the “deep and imponderable” question of where to draw the line between freedom of expression and government regulation. It will continue to challenge our courts and legislature now and in the future.  Always check with counsel or other human resource consultants before making decisions.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Phillip J. Griego

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

[1] Louis Malle’s The Lovers

More often than not, employees do not have direct evidence of discrimination.  Occasionally an employer will say or write something that clearly indicates an unlawful motive, but in most cases the employee tries to prove the “discriminatory animus” through various other methods.  Oftentimes lawyers refer to this as indirect evidence or proving discrimination through pretext.  As one court put it, “Resort to pretextual explanation is, like flight from the scene of a crime, evidence indicating consciousness of guilt, which is, of course, evidence of illegal conduct.”  Binder v. Long Island Lighting Co. (2nd Cir. 1995) 57 F.3d 193. Proving pretext does not necessarily mean the jury must find the employer violated the law, but it is usually enough to get the matter to a jury, and then it is up to the jury to decide whether the employer violated the law.

Hundreds (if not thousands) of cases throughout the nation discuss various methods for proving pretext.  Kent Spriggs, in his book Representing Plaintiffs in Title VII Actions, identifies (with appropriate case citations) the following 22 ways to prove pretext:  

  1. Statistical proof that a pattern of discrimination existed
  2. Direct evidence of discrimination
  3. Articulated reason is not the true reason
  4. Nonplaintiff selectee is less qualified
  5. Articulated comparison is not actually made
  6. Falsity of articulation stemming from inadequate opportunity to observe
  7. Change of qualifications or rules midstream
  8. If the employer departs from rules of law or its own regular rules or processes
  9. Drastic decline in performance
  10. Unequal discipline
  11. Catch-22: the employer is responsible for creating the problem that is supposedly the basis of the employer’s disqualification of employee
  12. Changing the articulated reason during the litigation
  13. Contamination: Falsity of one articulated reason impeaches other articulated reasons
  14. Excessive subjectivity or lack of factual basis
  15. Secret paper trail
  16. Surveillance as suggestive of pretext
  17. Employer’s treatment of other members of the same group
  18. Reason not reflected in performance evaluations
  19. Hostility toward retention of counsel
  20. Lack of proportionality
  21. Intent inferred from strong views of nondecisionmakers
  22. Absence of evidence supporting reasons

The second edition of Mr. Spriggs’ book came out in 1994, and Mr. Spriggs continued to update the book at least through 2004.  There is a book with the same name written by Robert E. McKnight Jr., which I believe is an updated version of the book, but I haven’t read it yet.

Understanding how to prove discrimination and how to avoid conduct that will lead to a discrimination claim is important for anyone representing individuals or companies in employment law disputes.  Representing Plaintiffs in Title VII Actions is a valuable resource for any employment attorney.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

East Bay 925-364-4655

Original article by Robert E. Nuddleman, former associate of Phillip J. Griego & Associates

Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

Your use of this blog does not create an attorney-client relationship between you and Phillip J. Griego & Associates. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and Phillip J. Griego & Associates cannot guarantee the confidentiality of anything posted to this blog.

The attorneys of Phillip J. Griego & Associates represent employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

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