California Employment Law

Robert Nuddleman Has Moved

Phil — Sat, 20 Dec 2008 16:29:18 +0000

Robert Nuddleman has accepted an opportunity with Sayar Fausto LLP in Los Altos. We have enjoyed Robert’s assistance over the last 9 years and wish him luck in his new venture. Robert has created a new blog post at:

sflegal.wordpress.com

Phil Griego will continue to post at this blog.

Guest Post: Holiday Parties: How Businesses Can Avoid Sexual Harassment Lawsuits

Phil — Fri, 05 Dec 2008 21:48:58 +0000

Jessica Hawthorne, an employment attorney with the California Chamber of Commerce, has some good suggestions regarding holiday parties and preventing sexual harassment lawsuits.

As holiday decorations start to go up around the office and everyone is full of seasonal cheer, many businesses may find that work parties, along with a more relaxed environment, can lead to sexual harassment claims.

Much too often especially if the event is off-site and the alcohol flows freely the office holiday party becomes a breeding ground for this sort of behavior. It seems that some employees can get the impression that professional behavior isn’t necessary at the festivities.

But that’s not the case. If its a work-sponsored event, workplace etiquette applies. And unfortunately for employers, liability can be the unexpected Christmas delivery if things aren’t handled properly.

Every year, claims and lawsuits over sexual harassment problems cost companies millions of dollars. In 2007, for example, the Equal Employment Opportunity Commission received nearly 25,000 sex-discrimination complaints and fined businesses more than $135 million for violating these workplace protections, the highest level since 2002.

But businesses can protect employees against legal turmoil by taking simple steps to prevent harassment from occurring at the office holiday party or anywhere else:

Advise employees of all relevant policies, such as harassment, dress code and appropriate workplace behavior.
Make sure all supervisors have received sexual harassment training.
Make sure everyone knows how to report unwanted or unwelcome behavior.
Remind all employees that the company’s sexual harassment policies will be in full force and effect during the event.

Despite training and preparation, sexual harassment claims could arise, so employers should also be aware of how to mitigate the situation. Its important to act swiftly if there are any complaints to determine what happened and how best to deal with the claim. That way, you will have done your harassment prevention due diligence if any legal situation arises later.

The best way to accomplish this and follow California law is to conduct proactive employee training and awareness against all forms of harassment.

All organizations, and that includes businesses, government agencies and non-profits, with 50 or more employees are required to train all supervisory personnel in sexual harassment prevention. Employers must prove that all of these employees take an interactive, two-hour harassment prevention course within six months of hire and every two years thereafter.

So keep in mind that while sexual harassment prevention is relevant all year round, now is a good time to give your office a refresher course. Your business should enjoy this festive time of year by keeping employees aware and preventing sexual harassment before it starts.

Jessica Hawthorne is an employment attorney the California Chamber of Commerce.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

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.

2009 IRS Mileage Reimbursement Rate: 55 Cents

Phil — Thu, 04 Dec 2008 17:39:17 +0000

Effective Jan. 1, 2009, the standard mileage reimbursement rates for car be reduced from the current 58.5 cents to 55 cents per mile for business miles driven. Recent DLSE and court decisions make it clear that employers can comply with their expense reimbursement requirements (see Labor Code Section 2802) by following the IRS guidelines.

Employer’s policies can be updated when the IRS updates its regulations, or the employer can simply say they will reimburse mileage at the current IRS rates. Reimbursing employees at a lower rate can subject the employer to a claim that the employer did not fully reimburse the employee for expenses incurred in the discharge of their duties. Failing to fully reimburse employees for work-related expenses may require the employer to pay interest and attorneys’ fees incurred in recovering the underpaid expense.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Do You Have to Pay Exempt Employees if the Office is Closed for a Week?

Phil — Thu, 13 Nov 2008 06:03:04 +0000

Jennifer asks:

My employer just announced today that they will be closing the office the week of Thanksgiving, November 24-28. The 27th and 28th were already scheduled as holidays. I am a salaried exempt employee and thus, always get paid for the day after Thanksgiving while hourly employees in the office do not receive pay for this day. With today’s announcement, I was informed that exempt employees would not be paid for Nov. 24-26 and would have to use our PTO. Does the company have the right to do this or am I to get these days off with pay?

The quick answer is: No. As discussed in prior articles, employers do not have to pay exempt employees any part of their salaries if the employees do not perform any work during a full workweek. In order to avoid having to pay a full week’s salary for weeks when the employees only work a partial workweek, some employers simply close down for a full week. Employees can, of course, use any accrued PTO or vacation, but the employer is not required to pay the employee’s salary because the employee does not perform any work during the workweek.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Brinkley, not Brinker – Another Meal Break Case

Phil — Wed, 29 Oct 2008 18:39:17 +0000

Another appellate court decision was issued today regarding whether an employer is obligated to ensure employees take required meal and rest breaks. In Brinkley v. Public Storage, Inc. (B20513), the Second Appellate District rejected the employee’s argument that employers must force employees to take meal and rest breaks. The court adopted the arguments previously set forth by several federal court cases as well as the now-famous Brinker case. The Supreme Court recently granted review of the Brinker case, which left many employers wondering what they should do. For now, at least, employers may be able to breath easy once again.

Public Storage took some well-advised steps that helped them defeat the employee’s claims. The employee handbook specified that employees were required to take rest and meal breaks. The company held a district meeting wherein it informed employees that they were required to take breaks and reprimanded employees who did not take required breaks.

Employers can still be held liable if they create a work environment that discourages or makes it difficult for employees to take meal or rest breaks. See, e.g., Cicairosv. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949.

The court also rejected the employee’s claim that an inadvertent error on the paystub subjected the employer to penalties under Labor Code Section 226. The employer avoided penalties because (1) the error was inadvertent and corrected when discovered; and (2) the employee did not suffer any injuries. The court noted that the defendant met its burden of production by filing a declaration stating that the misstatement was inadvertent and, when discoveered, corrected. The burden then shifted to the employee to produce evidence that the conduct was “knowing or intentional.”

A copy of the Brinkley case can be downloaded here.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Options After the DFEH Closes Your Case

Phil — Wed, 08 Oct 2008 18:32:57 +0000

EG asks:

If I’m not satifsied with the outcome of my DFEH complaint what is the next step?

If the DFEH makes a determination that they have not been able to find sufficient evidence that the employer violated the law, the DFEH will close the file and issue a Right to Sue Notice. The Right to Sue Notice allows the employee to file a lawsuit in court. The employee has one year to file the lawsuit in most cases. Failure to file the lawsuit within the applicable time frame will bar the employee from pursuing the claim in court. There may be additional claims that have different statutes of limitations.

Proceeding with a lawsuit in court should only be done after careful consideration and is best done with the assistance of an attorney. While an individual can represent himself/herself without an attorney, I do not recommend filing a court case without an attorney competent to handle the case. I know of more than one meritorious case that has been lost because an employee decided to forego hiring an attorney. If you cannot locate an attorney willing to handle your case, that may be an indication regarding the likelihood of being able to prevail in a court of law.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

California Computer Exemption Modified – Again

Phil — Fri, 03 Oct 2008 15:59:40 +0000

On September 30, 2008, Governor Schwarzenegger signed AB 10 which modifies Labor Code Section 515.5 – the statute that exempts computer software field employees from the overtime requirements of California law. Last year the “Governator” signed SB 929 which reduced the hourly rate computer workers must earn in order to be exempt from the overtime regulations of California law from $49.77 per hour to $36.00 per hour. Prior to passing AB 10, employers could pay computer software workers $36.00 per hour or the salary equivalent: $74,880.00. The new law, which is effective immediately, requires employers to either pay the $36.00 per hour rate or a salary of $75,000.00 per year, in no less than monthly payments of $6,250.00 per month.

I’m not sure why the Governor would sign a bill that requires employers to pay computer software workers $220.00 more per year than previously required. As with the hourly rate, the Labor Commissioner will continue to increase the minimum salary for computer workers each year based on the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

October is National Disability Employment Awareness Month

Phil — Wed, 01 Oct 2008 15:27:29 +0000

I didn’t come up with the title … Congress did. In 1945 Congress enacted a new law declaring the first week in October “National Employ the Physically Handicapped Week” to educate the American public about issues related to disability and employment. In 1962, the work “physically” was removed to acknowledge the employment needs and contributions of individuals with all types of disabilities. In 1988, Congress expanded the week to be a montha dn changed the name to National Disability Employment Awareness Month.”

Under the Americans with Disabilities Act and the Fair Employment and Housing Act, employers are required to provide reasonable accommodations to individuals with disabilities unless the accommodation would create an undue hardship. If an employer knows, or should know, that an employee requires an accommodation, the employer must engage in an interactive process of determining what, if any, reasonable accommodation will enable the employee to perform the essential functions of the job. Failing to engage in the interactive process can subject the employer to liability. Conversely, if the employee fails to to engage in the interactive process the employee may destroy an otherwise viable discrimination claim.

Accommodating employees or obtaining an accommodation from an employer is sometimes not an easy task. Each party bears responsibility and the process works best when the employer and the employee work together. Because this is an area of increasing litigation, both parties should educate themselves regarding their rights and responsbilities.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

10-4 Presentation on 9/25

Phil — Thu, 28 Aug 2008 20:47:07 +0000

Our office is teaming up with Dan Powers (COO of McEwan & Associates) and Meriwest Credit Union to conduct an educational seminar regarding how to protect and build your business. The presentation is part of Meriwest’s Business Banking Educational Seminar series.

Dan Powers will be talking about Four Ways to Grow Your Business.

Phil Griego & Robert Nuddleman will be talking about the Top 10 Honest Mistakes Employers Make.

There is no charge for the seminar and light refreshments will be served. It promises to be an enjoyable and educational evening.

The presentation will be held at 5:30 p.m. on September 25th at the Downtown San Jose Financial Center (1 North First Street, Suite 120)

Anyone interested in attending should contact Kelly Nyugen, Downtown San Jose Financial Center Manager, at (408) 365-6392. Space is limited, so RSVP early.

You can download a flyer for the event here: 10-4-on-9-25.

Release of Claims Does Not Encompass Non-Waivable Claims and Narrow-Restraint Exception to Non-Compete Agreements is Rejected

Phil — Thu, 07 Aug 2008 22:20:07 +0000

The California Supreme Court issued a decision today wherein it held that a general release of claims does not encompass non-waivable statutory protections under Labor Code Section 2802.

Raymond Edwards II was hired as a tax manager by Arthur Andersen LLP. After some problems with the government, Andersen started selling off its practice groups to various entities. Edwards’ group was scheduled to be purchased by HSBC USA, Inc.

In order to accept employment with the new company, Edwards was asked to execute a Termination of Non-Compete Agreement (”TONC”). The TONC contained a fairly typical clause releasing Anderson from any liability related to Edwards’ employment. Edwards refused to sign the release. As a result, Andersen terminated Edwards.

Edwards filed suit claiming the original non-compete agreement violated Business and Professions Code Section 16600. Edwards also claimed that the TONC’s release of “any and all” claims violated Labor Code Sections 2802 and 2804. Labor Code Section 2802 requires an employer to indemnify its employees for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer. Labor Code Section 2804 voids any agreement to waive the protections of Labor Code Section 2802 as against public policy.

Although the release did not specifically mention Edwards’ rights to indemnification under Labor Code Section 2802, the lower appellate court found that the broad general release unlawfully release claims under Labor Code section 2802. The Supreme Court reverse that portion of the appellate court’s decision because (1) the release did not expressly reference indemnity rights and courts should not read language into a contract that does not exist; and (2) a contract provision “releasing ‘any and all’ claims . . . does not encompass nonwaivable statutory protections, such as thje employee indemnity protection of section [sic] Labor Code 2802.”

The Supreme Court also held that Andersen’s original non-compete agreement was invalid. The original non-compete agreement prohibited Edwards from “performing professional services of the type he had provided while at Andersen, for any client on whose account he had worked during 18 months prior to his termination.” The non-compete agreement also prohibited Edwards from providing professional services to any client of Andersen’s Los Angeles office. The Supreme Court found that the non-compete agreement “restricted Edwards from performing work for Andersen’s Los Angeles clients and therefore restricted his ability to practice his accounting profession,” and was therefore invalid.

In doing so, the Supreme Court refused to adopt a “narrow-restraint exception” to Business and Professions Code Section 16600. Several Ninth Circuit cases adopted a narrow-restraint exception to uphold non-compete agreements that barred one party from courting a specific named customer or a limited number of customers. Today’s Supreme Court decision rejected any such exception, finding the language of Business and Professions Code 16600 unambiguous.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Common Statutes of Limitation

Phil — Fri, 01 Aug 2008 17:21:00 +0000

A “statute of limitation” is the time within which a lawsuit or claim must be filed. “Civil actions, without exception, can only be commenced within the periods prescribed in this title, after the cause of action shall have accrued, unless where, in special cases, a different limitation is prescribed by statute.” California Code of Civil Procedure Section 312. While there may be instances wherein the statute of limitations is tolled, missing a statute of limitations can have dire consequences. If a claim or lawsuit is not timely filed, the plaintiff may be barred from pursuing his or her claims.

One reader asked for a list of common statutes of limitation in employment litigation. So, here goes my list (Beware – Statutes of Limitation may differ from state to state. The Statutes of Limitation listed below apply in California):

Discrimination/Harassment/Retaliation under California’s Fair Employment and Housing Act (age, race, sex, disability, national origin, etc.) – Claims must be initially filed with the Department of Fair Employment and Housing within one year of the discrimination/harassment/retaliation. Once the DFEH issues a Right to Sue Notice, the claimant has one year to file a case in court.

Discrimination/Harassment/Retaliation under Title VII, ADEA and ADA (age, race, sex, disability, national origin, etc.) – In California, claims must be initially filed with the Equal Employment Opportunity Commission within three hundred days (other jurisdictions it may be as little as one hundred-eighty days). Once the EEOC issues a Right to Sue Notice, the claimant has ninety days to file a case in federal court.

Breach of Contract – If the contract is written, the lawsuit must be filed within four years of when the
breach occurred. If the contract is oral or implied-in-fact, it must be filed within two years of the breach.

Unpaid Overtime, Minimum Wage, Meal and Rest Breaks – Claims must be filed with the Labor Commissioner or in court within three years of when the wages were earned. This means, if the employee has worked more than three years, the employee may lose a portion of the claims he or she could have brought earlier. In court, many plaintiff’s counsel include a cause of action under Business and Professions Code Section 17200 to extend the statute of limitations by an additional year. Effectively, this gives employees up to four years to file a wage claim in court (not with the Labor Commissioner, though).

Wage Claims Based on Breach of Contract – Must be filed within either four years or two years, depending on whether the contract is written or oral or implied-in-fact.

Vacation Pay – There is currently a split in authority as to when the statute of limitations on vacation pay claims begins to run. In Sequeira v. Rincon-Vitova Insectaries, Inc. (1995) 32 Cal.App.4th 632, the court held that the statute of limitations begins to run when the vacation pay is earned. Therefore an employee who had accrued 12 years of vacation pay under a written employment agreement could recover only the portion accrued during the 4 years preceding termination. Later, in Church v. Jamison (2000) 143 Cal.App.4th 1568, the court held that the statute of limitations does not begin to run until the employee is terminated because Labor Code Section 227.3 says, “all vested vacation shall be paid … as wages” to a terminated employee.

Waiting Time Penalties Under Labor Code Section 203 – A claim for just the penalty must be filed within one year of the termination. A claim seeking both the penalty and the underlying wage must be filed within the time frame to bring a suit based on the underlying wage. There is some discussion that recent interpretations regarding the statute of limitations for meal and rest breaks claims would extend the statute of limitations to three years even if the penalty alone is sought. To my knowledge this specific issue has not been address since Murphy v. Kenneth Cole.

Termination in Violation of Public Policy (aka Tameny Claim) – Claims must be filed in court within two years of the wrongful termination

California Government Tort Claims – Some claims against the State of California or other public agencies must be presented to the government agency in a particular format before filing the claim in court. Such claims usually must be presented to the government agency within six months.

Defamation (libel/slander) – Lawsuits must be filed within one year from when it was determined that the defamatory statements were made.

Fraud – The lawsuit must be filed within three years of when the aggrieved party discovers the facts constituting the fraud or mistake.

Family Medical Leave Act – Any action must be filed within 2 years after the violation, or within 3 years if the violation was willful.

California Equal Pay Act – Court actions for wage discrimination claims (i.e., the opposite sex is paid a higher wage based on gender) within two years for most actions, and three years if the violation was willful. While there is no administrative exhaustion requirement, claims may alternatively file a claim with the State Labor Commissioner within 6 months of the violation.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Employers Do NOT Need to Force Employees to Take Breaks

Phil — Wed, 23 Jul 2008 01:08:10 +0000

For the first time, a California appellate court has held that employers do not need to force their employees to take meal breaks. While several federal cases have found that employers do not need to force employees to take meal breaks, the only California appellate court decision on the matter found that employers needed to ensure employees took the meal break. This sometimes proved difficult when an employee simply refused to take the meal break.

Reconsidering the matter following a transfer from the California Supreme Court, and after vacating their original decision, the Fourth Appellate District in Brinker Restaurant Corp. v. Super. Ct., held:

While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only provide, not ensure, rest periods are taken;
Employers need only authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;
Employers are not required to provide a meal period for every five consecutive hours worked;
While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken; and
While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.

The decision as it relates to rest breaks is no big surprise considering the language regarding mandatory rest breaks is considerably different than the language regarding meal breaks. The appellate courts interpretation provides a significant boon for employers that provide meal breaks even when the employees refuse to take them.

There are still plenty of ways an employee could claim s/he was dissuaded from taking a required break. Smart employers will ensure their handbooks and general policies clearly provide for and even encourage the use of all rest and meal breaks. Additionally, employers should be careful about scheduling employee work-times so tightly that the employees essentially cannot take a break.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Federal Minimum Wage Increase

Phil — Mon, 21 Jul 2008 17:05:37 +0000

Effective July 24, 2008, the federal minimum wage for covered non-exempt employees will rise from $5.85 to $6.55 per hour. The Fair Minimum Wage Act of 2007, which amended the Fair Labor Standards Act (FLSA), provides for phased-in increases ultimately reaching $7.25 per hour effective July 24, 2009. A separate provision of the bill brings about phased increases to the minimum wage in American Samoa and the Commonwealth of the Northern Mariana Islands.

Many states, like California, have their own minimum wage that is higher than the federal minimum wage. California’s minimum wage is currently $8.00 per hour. Additionally, many counties, cities, or local governments have their own prevailing wage laws.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Arbitrator Not Allowed To Determine Validity of Arbitration Agreement

Phil — Thu, 17 Jul 2008 16:17:10 +0000

Another California Appellate Court recently held that the court, not the arbitrator, can determine whether an arbitration clause in an employment agreement is valid. Because California courts have frequently refused to enforce arbitration agreements in the employment context, many employers have started inserting provisions that require the arbitrator, not the court, to determine the validity of the arbitration agreement.

In Murphy v. Check ‘n Go of California, Inc. (2007) 156 Cal.App.4th 138, the court refused to uphold a similar provision, finding that “While the language of the agreement [regarding arbitration of unconscionability issues] could not be clearer, plaintiff’s alleged assent to this provision was vitiated by the fact that it was set forth in a contract of adhesion, i.e., a standardized contract drafted by the stronger party and presented to the weaker party on a take it or leave it basis [citation].” Now, a second appellate court came to the same conclusion. See Ontiveros v. DHL Express 08 C.D.O.S. 8379.

The decision is not all that surprising, as arbitration agreements have taken a tough beating in the last decade. Under current laws many, if not most, arbitration agreements between employees and employers in California are unenforceable. Those that are enforceable usually require the employer to pay for the cost of arbitration. In many cases the costs of arbitration are greater than the amount the plaintiff would have been awarded in court.

I know many employers desire arbitration agreements, but I don’t know that arbitration is necessarily a wise decision. There used to be two main benefits to arbitration: 1) Arbitration was considered less costly and less time-consuming and 2) Employers could avoid a runaway jury.

Recent court decisions have eradicated the first benefit by requiring employers to pay for almost 100% of the arbitration costs and allowing virtually full discovery in the arbitration proceedings. Now, instead of allowing a judge or jury to decide the case for free or for nominal jury fees, the employer must pay an arbitrator between $450 to $750 per hour or more to review the case, rule on any applicable motions and decide the merits of the case. Our office handled one particularly contentious arbitration where the client paid over $200,000.00 in arbitrator fees alone.

As to the other main benefit (avoiding the runaway jury), I’m not convinced this is sufficient justification to throw money at an arbitrator. Some assume that a jury tends to award more to a plaintiff than an arbitrator, but I have not seen any statistics supporting this assumption. Even if it is true, keep in mind that only 1% of the cases that are filed in court go all the way to trial. This statistic is essentially the same in arbitration. That means you are paying an arbitrator’s fees to avoid the 1% of cases that go to trial. Also keep in mind that, at least in many counties, more than half the cases that go to trial result in a defense verdict. So, really, the employer is paying the arbitrator’s fees in 100% of cases to avoid less than one-half of 1% of the cases that might possibly result in a runaway jury verdict.

There are several other justifications for arbitration, but I can’t say I am convinced by any of them. Some argue that arbitrators are more likely to rule in favor of the employer because the employer is more likely to appear before that arbitrator in the future. Having spoken with numerous arbitrators and people that conduct arbitration on a frequent basis I have never heard of an instance where the “repeat-player” effect had any impact on a case. Because many lawyers still hold to this belief, or for some reason do not want to litigate in arbitration, some lawyers may avoid cases with enforceable arbitration agreements. Therefore, having an enforceable arbitration agreement may help decrease the number of lawsuits that actually get filed against the company. This is just an assumption and it’s not likely we could ever really find out how many cases were NOT filed as a result of an arbitration clause.

Drafting an enforceable arbitration agreement is possible, but be careful what you wish for. Keep in mind that in order to be enforceable with respect to most of the claims an employee might bring, the employer will have to pay for the arbitration fees and afford the employee the same protections the employee would have in court. Employers should carefully considering the consequences before using arbitration agreements.

Phillip J. Griego & Associates

95 South Market Street, Suite 520

San Jose, CA 95113

Tel. 408-293-6341

Original article by Robert E. Nuddleman of P hillip J. Griego & Associates

Happy 4th of July – Declaration of Independence

Phil — Fri, 04 Jul 2008 16:04:35 +0000

(Adopted by Congress on July 4, 1776)

The Unanimous Declaration
of the Thirteen United States of America

When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. –Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

He has kept among us, in times of peace, standing armies without the consent of our legislature.

He has affected to render the military independent of and superior to civil power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

For quartering large bodies of armed troops among us:

For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

For cutting off our trade with all parts of the world:

For imposing taxes on us without our consent:

For depriving us in many cases, of the benefits of trial by jury:

For transporting us beyond seas to be tried for pretended offenses:

For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies.

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments.

For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated government here, by declaring us out of his protection and waging war against us.

He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

New Hampshire: Josiah Bartlett, William Whipple, Matthew Thornton

Massachusetts: John Hancock, Samual Adams, John Adams, Robert Treat Paine, Elbridge Gerry

Rhode Island: Stephen Hopkins, William Ellery

Connecticut: Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

New York: William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

New Jersey: Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

Pennsylvania: Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

Delaware: Caesar Rodney, George Read, Thomas McKean

Maryland: Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

Virginia: George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

North Carolina: William Hooper, Joseph Hewes, John Penn

South Carolina: Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

Georgia: Button Gwinnett, Lyman Hall, George Walton

Source: The Pennsylvania Packet, July 8, 1776

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