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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 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 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 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 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 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.

The Second Appellate District published its decision in Augustus v. ABM Security Services, which overturned a trial court’s award of $90 million in statutory damages, interest, penalties, and attorney fees for a class of security guards who were allegedly denied rest breaks.  There has been much controversy over the extent to which employers must relieve employees of duty while on rest and meal breaks.  The court’s opinion does a fairly thorough analysis and is worth reading.  The following are some highlights from the case.

The trial court certified a class and granted plaintiffs’ motion for summary adjudication, concluding an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on call. The trial court awarded approximately $90 million in statutory damages, interest, penalties, and attorney fees on the premise that California law requires employers to relieve their workers of all duty during rest breaks. The appellate court concluded the premise was false, and therefore reversed the order.

ABM employs thousands of security guards, some sites where only a single guard is stationed, while others dozens could be stationed.  ABM policies required security guards to remain on-call and to carry a radio or pager even when the employee was on his/her rest break.  Labor Code Section 226.7, and the applicable wage orders, require employers to “afford their nonexempt employees meal periods and rest periods during the workday.”  The plaintiffs alleged since they were required to remain on-call,they were not relieved of all duties and therefore they were not afforded required rest periods.

The appellate court compared the wage order’s rest period requirement and the language in Labor Code section 226.7, and concluded that while an employer cannot require an employee to perform work while on a rest period, being on-call (at least in this situation) did not require the employees to perform work.

[A]lthough ABM’s security guards were required to remain on call during their rest breaks, they were otherwise permitted to engage and did engage in various non- work activities, including smoking, reading, making personal telephone calls, attending to personal business, and surfing the Internet. The issue is whether simply being on-call constitutes performing “work.” We conclude it does not.

The guards had a variety of duties they would perform throughout the day, including greeting visitors, allowing egress and ingress to the premises, making rounds of the buildings, responding to emergencies, etc.  Although a guard could be called back to work to perform such tasks, “remaining available to work is not the same as actually working.”

The court also differentiated rest breaks from meal breaks under the wage order.  Subdivision 11(A), pertaining to meal periods requires that an employee be “relieved of all duty” during a meal period. Subdivision 12(A), regarding rest breaks, contains no similar requirement. The court found that if the IWC had wanted to relieve an employee of all duty during a rest period, including the duty to remain on call, it knew how to do so. Additionally, since the IWC’s order allows a paid on-duty meal period in some circumstances, “it would make no sense to permit a 30- minute paid, on duty meal break but not a 10-minute paid rest break.”

In an amended portion of the decision, the court looked at the meaning of the word, “work,” both as a noun and a verb:

The word “work” is used as both a noun and verb in Wage Order No. 4, which defines “Hours worked” as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Cal. Code Regs., tit. 8, § 11040, subd. 2(K).) In this definition, “work” as a noun means “employment”—time during which an employee is subject to an employer’s control. “Work” as a verb means “exertion”—activities an employer may suffer or permit an employee to perform. (See Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123 (1944) 321 U.S. 590, 598 [work is “physical or mental exertion (whether burdensome or not) controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer and his business”].) Section 226.7, which as noted provides that “[a]n employer shall not require an employee to work during a meal or rest or recovery period,” uses “work” as an infinitive verb contraposed with “rest.” It is evident, therefore, that “work” in that section means exertion on an employer’s behalf.

I’m not a linguist, but I know we will see this language quoted in future cases.

In the end, the court concluded that “on-call status is a state of being, not an action. But section 226.7 prohibits only the action, not the status. In other words, it prohibits only working during a rest break, not remaining available to work.”

Augustus will be useful to occupations other than security guards since all of the wage orders contain identical language regarding rest breaks.  Any industry where the employee is required to remain on-call while on a rest break, and any employee that is required to remain on-call during rest breaks, should review Augustus.

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 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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