Recent Blog Posts

Blow Your Whistle on Unlawful or Illegal Employment Practices

Markson Pico — Wed, 16 May 2012 22:50:00 GMT

The situation made Ryan uncomfortable. He had been working at a successful car dealership as a supervisor for almost a year and enjoyed his job. The dealership worked hard to keep its customers returning. For example, the dealership's practice was also to provide free oil changes for its customers the first year after the purchase. The idea was to make the customers happy so that that they would return for service or to buy new cars. The practice worked as the dealership had many return buyers.

But Ryan recently learned from some technicians that they were instructed by management to discard used oil into a drain that led to a city sewer. This was cheaper and easier for the dealership than saving the oil to be picked up and recycled. However, "dumping" the oil was illegal as it violated Health and Safety as well as environmental laws. Ryan decided to bring the matter to the attention of the dealership owner. The owner seemed surprised and a little bothered by Ryan's telling him this but he promised to look into it. Over the next week, Ryan noticed that the owner and other managers and supervisors had stopped talking to him. Ryan was then written up by the general manager for something he had not done. He was not informed of meetings that he had previously been invited to attend. His schedule was changed without telling him. A few days later, Ryan was fired. The owner vaguely muttered that his performance had not been satisfactory and also cited to the write-up. Ryan felt that he had been treated wrongly.

_________________________

This is a classic case of "whistle blowing." In other words, an employer cannot retaliate against an employee who complains about (or "blows the whistle" on) the employer's illegal acts or a violation of a public policy. An employee's complaints about illegal activity to his or her employer's management (even when the employee has not complained to a governmental authority such as the Equal Employment Opportunity Council (EEOC) or City Attorney's office) may trigger substantial legal rights and protection for the employee. An employee may have rights even if he or she merely has a reasonable suspicion of the employer's illegal activity.

The situation faced by Ryan is just one example of potential illegal activity by the employer. Other examples of are discrimination; harassment; unfair wage practices; fraudulent activities; violations of consumer protection laws; violations of health and safety laws and many others. And, "retaliation" by the employer for such complaints may come in many forms, from unfair discipline, demotion, loss of employment benefits, up to termination. Of course, the employee always has the burden to show the connection between his or her reporting the illegal act to the employer (or government agency) and the employer's subsequent retaliation.

Markson Pico LLP has been involved in "whistleblower" cases where the client complained to the employer about illegal discrimination and harassment; unfair wage practices; unfair sales practices; and violations of environmental and "Clean Air" laws. If you have been subjected to retaliation in the workplace after reporting the employer's improper or illegal activities, please call Markson Pico LLP for a free consultation.

Markson Pico LLP Successfully Convinces the California Appellate Court to Officially Recognize A New Tort Claim-Intentional Interference with Expected Inheritance (IIEI)

Markson Pico — Fri, 04 May 2012 20:40:00 GMT

On May 3, 2012, in the case of Beckwith v. Dahl, the California Court of Appeal, Fourth Appellate District, Division Three, issued a unanimous published decision officially recognizing a new tort claim in California for Intentional Interference with Expected Inheritance (IIEI). In recognizing the new IIEI tort, California now joins the majority of other states recognizing IIEI as a valid cause of action.

What is IIEI?

IIEI is a cause of action that protects individuals who have been unexpectedly disinherited as a result of the intentional, wrongful interference of a third party. Common fact scenarios involve: a third party's actions preventing a person from signing a will; the intentional alteration of another's will; the tortious suppression or destruction of a will; the tortious depletion of a testator's estate; and even the tortious inducement to execute/not execute/revoke/not revoke a will depriving the intended beneficiary of his or her expected inheritance.

In general, such misconduct is dealt is addressed in the context of California's probate system. However, in certain instances, individuals may lack standing in probate because they may not technically qualify as an "interested person" under the Probate Code. As a result, those individuals are left without any probate remedy. IIEI closes that gap by providing a legal remedy in civil court to persons who reasonably expected to receive an inheritance but who, as a result of the intentional wrongdoing of a third party were deprived of that expectancy. Now, under Beckwith v Dahl, those victims have a remedy under California law that did not previously exist.

Who Benefits From the New IIEI Tort?

Any individual or entity that has been wrongfully deprived of a reasonably expected inheritance as a result of the wrongful interference of a third party, but lacks standing in probate, may now find a remedy in civil court under a theory of IIEI. Common examples involve intended beneficiaries who are not recognized family members, such as cohabitating, unmarried couples, same-sex couples, third party caregivers, charitable organizations, and even close friends of the testator.

Background of the Beckwith v. Dahl Case.

The facts in Beckwith v. Dahl illustrate the nature of the claim. The complaint alleges that Beckwith and his long-term, same-sex partner, Marc Christian MacGinnis, did not register as domestic partners. MacGinnis prepared a will giving half of his estate to Beckwith and half to his sister, Susan Dahl. While MacGinnis was hospitalized awaiting surgery, he asked Beckwith to print his will to sign before surgery. Beckwith could not find the will on the computer so MacGinnis asked him to prepare a new one. Beckwith did so. But before presenting the will to MacGinnis, Beckwith emailed it to Dahl for her comments. Dahl implored Beckwith not to present MacGinnis with the will insisting that a trust would be more beneficial for both of them. Dahl promised to take care of it and have trust documents prepared right away. Dahl, however, didn't follow through with her promise. MacGinnis died after the surgery without a signed will. Beckwith contends that Dahl lied to him, that she wrongfully interfered to prevent MacGinnis from signing his will—by means of fraud and deceit—in order to prevent MacGinnis from giving half of his estate to Beckwith and thereby making Dahl by default the sole beneficiary of the entire estate.

In probate court, Dahl was deemed the sole beneficiary and Beckwith found himself wholly disinherited. Unmarried and unregistered, Beckwith's claim was tossed out of probate court. Beckwith then filed suit in civil court alleging a cause of action for IIEI. The trial court dismissed the claim on the basis that it was not a recognized cause of action in California. The appellate court reversed, declaring "it is time to officially recognize this tort claim" and granting Beckwith leave to amend his complaint to state a claim for IIEI.

Elements of IIEI

The Court of Appeal outlined the five (5) necessary elements to plead a civil claim for IIEI as follows:

1. The plaintiff must plead he or she had an expectancy of an inheritance.

2. The complaint must allege causation.

3. The plaintiff must plead intent, i.e., that the defendant had knowledge of the plaintiff's expectancy of inheritance and took deliberate action to interfere with it.

4. The complaint must allege that the interference was conducted by independently tortious means, i.e., the underlying conduct must be wrong for some reason other than the fact of the interference.

5. The plaintiff must plead he or she was damaged by the defendant's interference.

Practitioner Point

Civil litigation practitioners and judges, as well as probate counsel judges alike, should familiarize themselves with the elements of the new IIEI tort and the analysis in Beckwith v Dahl to determine when an IIEI claim might be appropriate to pursue and to advise clients who may have an IIEI claim to prosecute or defend.

Job Protection In the Wake of A Workers' Comp Claim

Markson Pico — Fri, 27 Apr 2012 23:09:00 GMT

These days, employers are able to pick from a seemingly endless supply of highly qualified job candidates. Sometimes those candidates may be more attractive than an employer's current employees. That fosters an atmosphere of trigger happy employers itching for an excuse to let employees go.

Couple that environment with the soaring cost of workers' compensation premiums and what happens? Employees who make workers' compensation claims flirt with the possibility of retaliation by their employer. It's the perfect excuse to get rid of a problem employee to make room for that candidate waiting in the wings for an offer to do the same job for less money. But there is one problem. Retaliation against employees who file workers' compensation claims isillegal under California law.

California Labor Code section 132aprotects employees who file workers' compensation claims. Under the statute, an employer may not discharge or discriminate against an industrially injured employee who: (a) applies or intends to apply for workers' compensation benefits; (b) receives a workers' compensation rating, award, or settlement; or (c) testifies or intends to testify in another employee's case. The purpose of the statute is to prevent discrimination against workers who are injured in the course of their employment.

An employee may have a legitimate discrimination claim against his/her employer if he/she files a workers' compensation action and as a result he/she is:

Terminated;
Harassed;
Treated with hostility;
Threatened;
Demoted;
Given a pay cut; OR
Subjected to any other adverse employment actions.

In addition, both the Fair Employment and Housing Act (FEHA) and common law wrongful termination remedies are available to an employee who suffered discrimination based on a work-related disability. Also, section 132a claims may be used to support claims for wrongful termination in violation of public policy.

If you or a loved one filed a workers' compensation claim and were fired or otherwise retaliated against by your employer, you have rights. Contact an attorney at Markson Pico LLP to discuss your rights.

What's My Sexual Harassment Case Worth?

Markson Pico — Sat, 10 Mar 2012 18:25:00 GMT

Victims of sexual harassment regularly contact attorneys at Markson Pico LLP and ask "what's my case worth?" Because we don't pretend to have crystal ball, there is no way to respond with certainty. But we look to history for guidance--history gleaned from past published judgments, verdicts and settlements. Here is sampling of historical trends in California:

California appellate panel affirms an award of $1,237,086 in compensatory damages and an equal amount in punitive damages against an employer. "...there was substantial evidence supporting the jury's finding that plaintiff's complaint of sexual harassment of a colleague was a motivating reason for her discharge." Green v. LAIBCO, #B212933, 192 Cal.App.4th 441, 2011 Cal. App. Lexis 119, 111 FEP Cases (BNA) 783 (2nd Dist.).

Jury awards a LAPD officer $1 million in economic damages, and $1.3 million in non-economic loss, including emotional distress. She alleged discrimination and abuse while assigned to the Valley Traffic Division in 1996, and was retaliated against for reporting the harassment to Internal Affairs. Borck v. City of Los Angeles, #2:99-cv-11575 (C.D. Calif. 2009). In 2008, the city settled a similar claim for $2.25 million. Fuller v. City of Los Angeles, L.A. Co. Super. Ct. #BC346464 (Unpub. 2008).

Three women police officers who won $3.5 million for sexual harassment settle their claims for $4 million. The settlement includes $3 million from the city and $1 million from a law firm that was sued by the plaintiffs in a second lawsuit for allegedly defamatory remarks made by counsel after the jury verdict. Frieders v. City of Glendale, #BC263271, 42 (2086) G.E.R.R. (BNA) 1167 (Cal. Super. 11/12/04).

San Francisco suburb to pay almost $2 million in damages and legal costs to settle a sexual harassment suit brought by four women ex-officers, who claimed they suffered indignities, received different treatment and were denied promotional opportunities because of their gender. Wowak v. City of Sunnyvale, #5:03-cv-00394, case dismissed; settlement reported at 174 Lab. Rltns. Rptr. (BNA) 466 (N.D. Cal. 5/6/04). [2004 FP Sep]

California county agrees to pay $250,000 to a former ranger for gender bias and harassment. She alleged continuing mistreatment after the county settled an earlier lawsuit that she had filed. Christensen v. Monterey County, as rptd. in the Monterey Herald (3-23-2003).

California appeals court affirms a sexual harassment award against a city housing authority in the amounts of $500,000 for emotional distress damages, $173,866 in interest, $611,898 in attorneys' fees, and $11,986 in costs and $30,000 in discovery sanctions. Walker v. San Francisco Housing Auth., #A0954767, 100 Cal.App.4th 685, 122 Cal.Rptr.2d 758, 2002 Cal. App. Lexis 4442 (2002).

A $30 million punitive damages jury verdict against a private employer has been cut to $8.25 million by the judge. Gober v. Ralphs Grocery, Super. Ct. #N72142, San Diego Co. Calif., rptd. in the S.F. Recorder (7/17/2002).

FBI pays a settlement of $150,000 plus attorney's fees to woman agent who complained of sexually-oriented teasing, harassment, and ridicule that was not only condoned by and participated in by her supervisors. Anderson v. Reno, 97-0747, settlement rptd. at 38 (1887) G.E.R.R. (BNA) 1284 (N.D. Cal.); prior decis. at 190 F.3d 930, 1999 U.S. App. Lexis 21387, 80 FEP Cases (BNA) 1663 (9th Cir. 1999).

Two court employees accept $1 million to settle their sexual harassment lawsuit. The claimed they were routinely subjected to obscene sexual comments by male co-workers and supervisors and that nothing was done to correct the problem. Wayman v. San Bernardino Co, #273502, 37 (1842) G.E.R.R. (BNA) 1618. (Cal.Super. 1999).

Appellate court upholds a $3.5 million punitive award for sexual harassment, an amount 70 times greater than the compensatory damages. Weeks v. Baker & McKenzie, #A068499, 1998 Cal.App. Lexis 396, 76 FEP Cases (BNA) 1219. [1998 FP 93]

A California city has paid $900,000 to settle a sexual discrimination and harassment suit brought by a former Fire Dept. contract physician. Braun v. San Francisco, Cal.Super. #969799, 36 G.E.R.R. (BNA) #1757 (1998). [1998 FP 78]

California county was not required to pay a $2.2 million judgment awarded three women deputy sheriffs who were harassed in the workplace by a male deputy; county was not required to indemnify or defend the deputy as his acts were outside the scope of his employment. Farmers Insur. v. Co. of Santa Clara, 906 P.2d 440, 11 Cal.4th 992, 1995 Cal. Lexis 6796. [1996 FP 44-5]

County pays $200,000 to woman officer who claimed she was fondled by the chief; she was transferred after complaining about his conduct. Doe v. County of Los Angeles, Los Angeles Co. Super.Ct., 109 (9) L.A.D.J. (V&S) 3 (1995). [1996 FP 45]

Ex L.A.P.D. officer accepts $165,000 to settle her suit against the city. She alleged she was raped by a male officer at the police academy. Campbell v. City of Los Angeles, #BC 065939, 108 (16) L.A.D.J. (Verd. & Setlmts.) 3 (L.A. Co. Super. Ct. 1/24/95). [1995 FP 76]

Woman security officer accepts $1.5 million settlement for enduring sexual harassment by male officers. Doe v. Confidential Employer, 107 (193) L.A.D.J. (Verd. & Setlmts.) 6, L.A. Co., Cal. Super.Ct. Dept. 54 (1994). [1995 FP 28]

California city settles complaints of two women workers for $225,000. Doe and Roe v. City (I.D. Confidential, L.A. Co. Super.Ct. (7/9/94), summary in 107 (154) L.A.D.J. (Verd. & Setlmts.) 8 (8/12/94). [1995 FP 12]

Calif. Superior Court reduces a $6.9 million verdict to $3.5 million. Secretary proved a partner in a law firm sexually harassed her. Even with the reduction, it is the largest to-date verdict for workplace sexual harassment. Weeks v. Baker & McKenzie, 66 FEP Cases (BNA) 581 (Cal.Super. 1994).

California police dept. settles harassment and retaliation claim for $45,000. Woman officer complained that a superior "leered" at her breasts and discussed sex with her. Doe v. City of Chula Vista, San Diego Co., Cal., summary in 107 (57) L.A.D.J. (Verd. & Setlmts.) 3 (1994). [1994 FP 107]

California police dept. wins jury trial on sexual harassment complaint. Plaintiff demanded $80,000 to settle the suit and the city offered $15,000 which was rejected. Rehberg v. San Bernardino Unif. School Dist. Police Dept., San Bernardino Co., Cal. Super. Ct. #265035, 107 (42) L.A.D.J. (V&S) 3 (1994). [1994 FP 77]

Los Angeles pays $4.5 million to the family of a teenager molested by a uniformed officer. Doe v. Tanabe, summary in 28 (19) Bus. Insur. 4, L.A. Co., Cal. Super. Ct. 1994). [1994 FP 141]

Two of ten women Newport Beach, Cal., police officers who alleged sexual harassment settle their lawsuits for $113,000 and$62,500. The complaints purportedly induced the chief and a captain to prematurely retire, summary in L.A.Times 2/1/95.

Huntington Park (Calif.) woman police officer receives $187,500 to settle her sexual harassment lawsuit; three employees were removed, summary in L.A. Times 1/22/94.

Jury awards $3.1 million to two women police officers who were sexually harassed by male coworkers. Clerkin v. City of Long Beach; Allison v. City of Long Beach, U.S. Dist. Ct. (C.D. Cal. 1991), summary in L.A. Times 10/14/93. [1991 FP 170]

San Diego approves $90,000 settlement to woman police employee who's shirt was doused with water by an officer. Molina v. City of San Diego, Unrptd., City Council Mtg. 11/25/91. [1992 FP 27]

Female former sheriff's deputy receives $109,600 judgment plus $100,000 in legal fees for sexual touching. Stewart v. Co. of Sonoma, 634 F.Supp. 773 (N.D. Cal. 1986).

Commission-Only Pay Plan May Jeopardize Overtime Exemption

Brett Markson — Wed, 07 Mar 2012 23:46:00 GMT

It's no secret. The "great recession" over the past several years has not been kind to the automobile industry. And for car salespersons, no sales means no commissions. But the sales staff can't go unpaid. They must receive minimum monthly compensation—either base pay, a draw against future commissions, a guarantee or otherwise. Without that, the dealership jeopardizes the validity of its overtime exemption policy and that may lead to exposure for past unpaid overtime, wages, penalties, and interest for all of the dealership's sales staff.

Markson Pico LLP recently met with a potential client who worked as a salesperson for a used car dealership. The potential client struggled through a dry spell often receiving paychecks amounting to less than the minimum hourly wage, and on occasion, no paycheck at all. This client felt that something was legally wrong. And he was sure right about that.

The California Supreme Court has approved a two-part test to determine whether an employee is a commissioned salesperson exempt from overtime. First, an employee must be involved principally in selling a product or service. Second, the amount of the employee's compensation must be a percent of the price of the product or service. Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785.

But that 's not the end of the inquiry. The employer's pay plan must be a bona fide commission plan to justify reliance on the exemption. To that end, the sales staff must consistently earn or receive commissions in excess of one and one half the minimum wage. California Industrial Welfare Commission (IWC) wage order No. 7-2001 exempts from the overtime compensation requirement "any employee whose earnings exceed one and one-half (1 1/2) times the minimum wage if more than half of that employee's compensation represents commissions." (Cal. Code Regs., tit. 8, § 11070, subd. (3)(D).) Labor Code § 204.1, applicable to employees of vehicle dealers provides: "Commission wages paid to any person employed by an employer licensed as a vehicle dealer ... are due and payable once during each calendar month ... . Commission wages are compensation paid to any person for services rendered in the sale of such employer's property or services and based proportionately upon the amount or value thereof."

The DLSE's Enforcement Policies and Interpretations Manual (June 2002) section 50.6.4.6, dealing with the commissioned salesperson exemption, explains: "The [commissioned salesperson] exemption will not be met unless the employee receives earnings for each period (not exceeding a weekly period) of more than one and one-half times the applicable minimum wage…"

Further, section 50.6.1(4) of the Manual provides: "To test for whether the compensation arrangement is a bona fide commission plan, California law also uses a period of at least one month. Consistent commission earnings below, at, or near the draw are indicative of a commission plan that is not bona fide. If the commission plan is found to be invalid, overtime will be due for all weeks in which the exemption was claimed."

"[T]he assertion of an exemption from the overtime laws is considered to be an affirmative defense, and therefore the employer bears the burden of proving the employee's exemption." Ramirez v. Yosemite Water Co. (1999) 20 Cal.4th 785, 794-795. Thus, it is the former employer's burden to prove that it had a bona fide commission scheme under which salesperson employees earned a minimum of one and one-half times the minimum wage for each period.

To ensure that wages stay above the minimum threshold needed to satisfy the commissioned salesperson exemption, employers typically include minimum guaranteed base pay in their compensation plans. See, Areso v. Carmax, Inc. (2011) 195 Cal.App.4th 996, 1000 [guaranteed minimum exceeding one and one-half times minimum wage]; Muldrow v. Surrex Solutions Corporation (2012) ___ Cal.App.4th ___ (2012 Cal. App. LEXIS 39) [monthly draw—an advance on commissions to be earned in the future—in an amount exceeding one and one-half times minimum wage]. Such guaranteed minimum payments are permissible to preserve the compensation plan's exempt status for commissioned employees. Section 35.1.3 of the DLSE Manual outlines a framework for such 'advances,' 'draws,' or 'guarantees' for commissioned employees.

Getting back to our potential client's situation, his employer's plan itself offers no guarantee that the employees will earn at least one and one-half times minimum wage. And in practice, the employees faced numerous pay periods in which they received less than the minimum wage. Under California law, because the employer's plan lacks a built-in safety net for the commissioned employees, its pay plan is not a bona fide commission plan. As such, the dealership faces multi-million dollar financial exposure for wage and hour violations as to all employees working under the invalid plan.

Markson Pico LLP is committed to protecting the rights of employees, including representation of employees in wage and hour cases. Click here to contact a lawyer from Markson Pico LLP.

"Congratulations on the new baby! You're Fired!"

Markson Pico — Fri, 24 Feb 2012 19:40:00 GMT

It seems that we have recently received several client inquiries by women who have experienced unfair treatment which they believe was related to informing their employers that they were pregnant. While a pregnancy should be a joyous time in the life of any expectant mother, some employers do not view it that way. Instead of experiencing the happy glow of impending motherhood, some employers see only workplace headaches caused by the employee missing work, requiring irksome accommodations, and possibly leaving the workforce. In fact, in one case Markson Pico LLP recently handled, our client was specifically told by the owner of a clothing manufacturer that her pregnancy caused her to go to the doctor too often, she missed too much work, and she could no longer work at his company! Not every case is so clear cut. In another case handled by Markson Pico LLP, when our client, an accounting firm employee, returned from her pregnancy leave, her old job had been filled due to suspicious and vague "changes in the office." Although she was told that she would eventually get her position back, our client was forced to do much lower level work, lost her office, and was deprived of other benefits she had prior to leaving on pregnancy leave.

In both of these situations, the clients were subjected to discrimination (or unfair treatment) based upon their pregnancies, and that is illegal. Actually, discrimination based upon pregnancy, childbirth, or pregnancy-related medical conditions is treated as sex discrimination under both Federal law (Title VII) as well as under California law (Government Code Section 12926(p) and 12945(a)-(b) (commonly known as the "Fair Employment and Housing Act" or "FEHA").

Typically, to be able to show pregnancy discrimination, a plaintiff must show that her employer knew she was pregnant as well as be able to show the employer's motive in discriminating against her due to her pregnancy. That is not always so easy. As shown by our examples, sometimes –very rarely- discrimination is as obvious as your boss telling you "You cannot work here anymore because you are pregnant." But those types of situations are not common in our experience. Usually discrimination is more subtle and insidious. For example, the employee –who had always received stellar performance reviews- starts receiving poor evaluations and critiques; her job responsibilities seem to be taken away from her; she is forced to do other unpleasant assignments that she had never performed before. Many women tell us they were even subjected to comments related to their pregnancy that while not offensive on their face, left them questioning the motive of the speaker. (E.g., "So I bet you'll want to spend more time at home with the new baby, won't you?") These incidents might be completely unrelated and coincidental to the woman's pregnancy, or, they may be subtle attempts by the employer to push a pregnant (or new mom) out the door.

Have you or some woman you know had a workplace experience like this? If so and you would like to speak with an attorney about it, please call Markson Pico LLP. We would like to discuss it with you.

Wage and Hour Insurance Coverage: Beyond What Your Employer Says

Markson Pico — Wed, 05 Oct 2011 23:07:00 GMT

Employers typically rely on Employment Practices Liability Insurance ("EPLI") policies for coverage against traditional employment-related claims, such as sexual harassment, discrimination and wrongful termination. And while many EPLI policies offer coverage that may capture wage and hour type claims, often they don't. But keep looking. The employer may carry other liability policies that could open the door to coverage—such as Directors' & Officers' Liability (D&O") policies. And for employees harmed by wage and hour law violations, don't accept an employers' claim that it has no coverage at face value without reading and analyzing the policies.

Something happened in one recent wage and hour case that Markson Pico LLP handled that illustrates the importance of independent coverage analysis. After a year or so of litigation, the employer's insurance defense lawyer announced that the insurance carrier revoked coverage because the limits were "exhausted." The lawyer explained that the policy was limited to $100,000 in defense costs and nothing more. Having seen the insurance declarations page showing $1,000,000 in coverage, we had suspicions. So we read the policy.

Turns out the carrier was playing fast and loose with coverage. The employer had a D&O policy. The policy contained standard language excluding coverage for any alleged violation of the "Fair Labor Standards Act . . . or any similar provision of federal, state or local statutory law or common law." Also, the policy had a $100,000 "defense only" limitation, under an endorsement entitled "Sublimit-Defense Expenses – Fair Labor Standards Act", which tracked the language of the FLSA exclusion. The carrier was relying on this exclusion to justify its revocation in coverage.

But under California law, the carrier's reliance on the wage and hour exclusion was misplaced and its revocation of coverage was erroneous. Under California Dairies, Inc. v. RSUI Indemnity Co. (E.D. Cal. 2009) 617 F.Supp.2d 1023, the exclusion does not apply to all California wage and hour laws. Rather, under the express terms of the exclusion, the issue turned on whether a particular Labor Code provisions has a sufficiently "similar" analog within the FLSA to trigger the exclusion. The California Dairies court made several findings in that regard. The Court held that claims for unpaid minimum wage and overtime under California law, which closely track federal law (FLSA) are indeed within the scope of the exclusion. Likewise, the Court held that claims for meal period penalties under Labor Code section 226.7 were within the scope of the exclusion because federal implementing regulations require payment of minimum wages during rest breaks.

However, not all wage and hour claims fall within the scope of the exclusion. The Court specifically found that federal law contained no analog to California Labor Code sections 226 (requiring accurate itemized wage statements), section 2802 (requiring reimbursement of employee expenses), and section 201-203 (requiring timely payment of wages at termination and imposing "waiting time" penalties). Because our complaint included the additional statutory wage claims, the carrier was still required to cover defense and indemnity costs for such claims notwithstanding the so-called "wage and hour" exclusion. And because the carrier had erroneously revoked coverage, the carrier faced extra-contractual exposure for bad faith insurance practices.

We pointed the coverage issues out to the employer's counsel. As a result, the insurance carrier (without admitting its blunder) agreed to participate in the upcoming mediation which led to a successful settlement. Thus, while the conventional wisdom seems to be that wage and hour claims aren't covered under insurance policies, successful results are more likely realized by helping former employers navigate the insurance coverage maze—that holds true even when relations with the former employer may seem otherwise hostile.

Markson Pico LLP is committed to helping employees who have suffered harms as a result of employers' failure to comply with California's wage and hour laws. Click here to contact a lawyer from Markson Pico LLP.

Mini-Skirt Mondays?! One Extreme Example of a Hostile Work Environment

Markson Pico — Fri, 30 Sep 2011 23:30:00 GMT

People know this is 2011, right? While an employer maintaining a dress code is certainly not unusual, one Utah Company took the idea of a dress code to an unhealthy and illegal extreme. Trudy Anderson, an employee of an Elk Grove, Utah electrical control company has accused her boss (the company's owner) of sexual harassment. Notable amongst her allegations was her employer's attempt to enforce a dress code that included "miniskirt Mondays," "tube top Tuesdays," wet t-shirt Wednesdays," "no bra Thursdays," and "bikini top Fridays." (The question remains open as to what creative dress-style monikers the owner would come up with if the business were open on weekends.) Ms. Anderson also accused her boss of watching pornography in the office; touching her inappropriately; making invasive and intrusive sexual comments to her about her breasts; and, eventually firing her in retaliation after she reported the sexual harassment. The boss even made Ms. Anderson sign a document that said she would accept the harassment and if she had a problem with it, she would be terminated! (In this case, Ms. Anderson said that she tolerated the abuse as long as she did because she was a single mother and needed the job).

Now, an employer's enforcement of a mandatory dress code is certainly not improper; in fact, many businesses require one because it helps them to maintain a certain type of image or brand. (For example, Footlocker store employees with their black and white striped referee shirts, or, Target employees with their red shirts). Employers can even require employees to wear what may be commonly thought of as more risqué outfits, such as that nationally famous chicken wing and beer-selling restaurant named after the sound an owl makes, that offers "entertainment through female sex appeal" which requires its female food servers to wear form fitting t-shirts and short shorts at work.

Those situations are in stark contrast to Ms. Anderson's case, above. An electrical control company environment is far different than a bar/restaurant that actively markets an atmosphere of "entertainment through female sex appeal." Regardless, in this case the employer's creative dress requirement for this female employee arguably constitutes a hostile work environment. By "hostile work environment" we generally mean that the harassing conduct creates and "objectively hostile or abusive environment" that is subjectively perceived by the victim as abusive. (The offensive dress code is of course in addition to the employer's other actions and behavior that made for a hostile and abusive environment).

Ms. Anderson filed a lawsuit in the federal district court in Utah. While we have no idea what the employer's defense will be, it will be interesting to see if he can be as creative in coming up with a legal defense for why he required Ms. Anderson to submit to "wet t-shirt Wednesday" as he was in coming up with the name . . . . .

School Fires Water Polo Coach For Being Openly Gay

Markson Pico — Fri, 30 Sep 2011 00:19:00 GMT

Charter Oak High School fired an openly gay water polo coach, Mitch Stein, after receiving an anonymous complaint about "inappropriate" photos of Stein pulled from his Facebook page. No, these weren't photos of Stein doing anything illegal. And no, these weren't lewd or compromising photos by any means. What do these "scandalous" photos show? According to reports in sgvtribune.com, Stein was captured on film: (1) eating a corn dog at the LA County Fair; and (2) posing with a group of men dressed in drag.

Yet according to Stein, the school told him he wasn't fired for being gay. And attorneys for the school district explained, "[i]t is inappropriate for a coach or a teacher to publicly post on a website readily accessible to his students material with sexual content of any nature." Sexual content? It's troubling to think about what the future will bring for favorites like bananas, sausages, and, perhaps, ice cream cones.

While the media had plenty of fun posting photographs of Michele Bachmann and Rick Perry eating corn dogs, no one suggested that these images warranted their removal from public office. And why should they?

The key difference—Stein is gay and he coaches school children. So apparently to this school's administration, eating a corn dog and posing with drag queens poses a threat to the children. No matter how the school spins this issue, the reality is clear. The school fired Stein for being openly gay.

Discrimination against an employee, like Stein, based on sexual orientation is illegal under state and federal law. Where, as here, the employer takes an adverse employment action because an employee is (or is thought to be) gay, lesbian, bisexual, transsexual or transgender, that employer faces civil liability. In addition, California law also protects employees from workplace harassment due to sexual orientation, such as threats, abusive behavior or repeated, offensive jokes related to their sexual orientation.

Markson Pico LLP is committed to protecting the rights of all people, regardless of race, gender, nationality, religion, or sexual orientation. Click here to contact a lawyer from Markson Pico LLP.

California's Unregistered Same-Sex Partners Remain Vulnerable to Unintended Disinheritance.

Markson Pico — Thu, 29 Sep 2011 23:30:00 GMT

As the song goes, "Love and marriage, love and marriage. Go together like a horse and carriage, …" In comparison, "Love and civil unions, ..." kind of falls flat. To many, next to marriage, a civil union seems like the proverbial red-headed, step sister—largely perceived as inferior and stigmatizing. No wonder so many committed, same-sex couples choose to forego domestic partnership registration.

But the very same-sex couples who reject civil unions on principle are more vulnerable to unintended disinheritance than their legally married counterparts in California. When a married person dies without a will, the probate laws outline a detailed scheme for the spouse's inheritance rights. But when an equally committed, same-sex, unregistered partner dies without a will, the doors to the probate court are slammed closed. Period.

Worse, hostile family members may try to prevent their deceased family member's same-sex partner from receiving any inheritance. And under the current status of California law (vis-à-vis marriage rights and available tort remedies), unregistered, same-sex couples are particularly vulnerable to such misconduct and abuse.

The case of Beckwith v. Dahl illustrates the point. Beckwith and his long-term, same-sex partner, Christian, did not register as domestic partners. And after Christian's hostile sister intentionally and successfully interfered with Christian's effort to sign a will naming Beckwith as a beneficiary, Beckwith found himself wholly disinherited when Christian died. Unmarried and unregistered, Beckwith's claim was tossed out of probate court.

But Beckwith didn't stop there. It was clear to Beckwith that Christian's sister wrongfully interfered to prevent Christian from signing his will—by means of fraud and deceit. So Beckwith sought to hold Christian's sister personally accountable in civil court for her misconduct.

Beckwith sued under a tort theory known as intentional interference with inheritance expectancy. The Second Restatement of Torts § 774B defines intentional interference with inheritance expectancy as, "One who by fraud or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift." Simple enough.

But intentional interference with inheritance expectancy is not recognized in all states. While 25 states recognize the tort claim, California remains on the sidelines. That is, California has yet to recognize or reject claims of this nature. As a result, the trial court dismissed Beckwith's lawsuit. Beckwith appealed.

Beckwith's lawsuit is now pending before the California Court of Appeal and the appellate court is expected to decide whether California should recognize a new tort, intentional interference with inheritance expectancy, when, as here, no probate remedy exists.

After the parties submitted their appellate briefs, the appellate court on its own motion issued an Order inviting four public policy organizations to submit briefs on the issue. The court solicited briefs from the Consumer Attorneys of California, the Civil Justice Association of California, Family Research Council, and the National Center for Lesbian Rights.

Should the court issue a published decision recognizing the tort of intentional interference with inheritance expectancy, "unregistered" same-sex couples in California will be less vulnerable to the kind of abuse that Beckwith suffered. But until then, the disparate impact of the law is just another reminder that civil unions and marriage are indeed less than equal.

Markson Pico LLP represents Beckwith in his fight to hold Christian's sister accountable for her misconduct. Markson Pico LLP is committed to protecting the rights of all people, regardless of race, gender, nationality, religion, or sexual orientation. Click here to contact a lawyer from Markson Pico LLP.

Independent Contractors and the FEHA: Is There Protection Available for Claims of Sexual Harassment?

Markson Pico — Wed, 24 Aug 2011 22:10:00 GMT

We recently helped a client who had begun working for a Los Angeles-area restaurant essentially as an independent contractor. She acted as a consultant to the restaurant for their menu; interior design; and in other ways. This client ran her own food service business but she felt that this was a good opportunity for her. Unfortunately, while she was engaged in performing services for the restaurant, our client was sexually harassed by employees of the restaurant in a pretty horrific way.

One of the first questions the client asked us was whether she had any legal right to pursue a claim for sexual harassment. This client believed that because she was merely an independent contractor for the restaurant, she was prevented from suing for her workplace harassment claims as she would if she were an employee. However, the answer to her question of whether she still had the right to pursue a sexual harassment claim against the restaurant as an independent contractor was a resounding "Yes!"

The California Fair Employment and Housing Act (or "FEHA") certainly does offer protection from many workplace claims to employees. However, the FEHA also protects "persons performing services pursuant to contract" –or, independent contractors- under certain circumstances. For example, FEHA protects both employees and "persons performing services pursuant to contract" by redefining an employer for purposes of the anti-harassment division of the act as "any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract."

Additionally, the employer has a duty not to allow anyone to sexually harass its employees or persons performing services pursuant to contract. Therefore, an entity must not knowingly allow sexual harassment to occur irrespective of whether the person being harassed is an employee or independent contractor and irrespective of whether the person doing the harassing is an employee, contractor, or even a customer or other person. In other circumstances, such as in the case where an individual feels he or she is being discriminated against by the employer, the FEHA may not offer any protection to independent contractors.

At least there was a somewhat positive end to the story for our client. While it certainly did not make up for the horrible harassment our client experienced, in the end Markson Pico LLP was at least able to make sure the restaurant paid significant compensation to the client.

"I'm Gonna Get You Back!" What is Illegal Workplace Retaliation?

Markson Pico — Thu, 30 Jun 2011 23:10:00 GMT

A quick online dictionary search of the definition of "retaliate" reflects that it means "to take retributory action, especially by returning some injury or wrong in kind." We frequently receive calls from potential clients where they tell us that they were "retaliated" against at work. In many cases, they probably were considering the general use of the word "retaliate." For example, one lady reported that her boss had retaliated against her by not quickly processing her mileage expense checks following an argument between the two women over how an aspect of their job should be performed. The woman believed her boss "retaliated" against her because she was mad at her over the argument. Another man reported that he was "retaliated" against at work by being given an unfavorable schedule because he had told the owner of the company something unfavorable about his boss and the boss wanted to "get back" at him. These actions may have been unfair or even wrong, and in the commonly understood sense of the word they were forms of retaliation. But were these forms of illegal workplace retaliation? Probably not.

In employment law, "retaliation" means something a little different. For a workplace claim for retaliation, an employee must show that he or she engaged in a "protected activity" (such as complaining of or opposing an employer's action that is against the law (e.g., discrimination or harassment); that he or she was then subjected to an adverse employment action by the employer (e.g., demotion or termination); and, that there is a "causal link" between the protected activity and the employer's action. In other words, the employee has to be able to show that she was treated badly because of her protected activity. So, if a co-worker glues your keyboard because you reported him sleeping on the job, while it is "retaliation," it is not necessarily illegal.

Now that we have shed some light on this subject, do you think you have ever experienced workplace retaliation?

Your Employer's Bankruptcy Does Not Have To Be The End Of The World When It Comes To Your (Hard Earned) Wage Claim!

Markson Pico — Wed, 22 Jun 2011 19:22:00 GMT

It's true! There is some protection for your wage claims under the right circumstances. While certain administrative expenses of the bankruptcy case must be paid first by the employer "debtor," employee wage claims -- for unpaid wages or other forms of compensation such as commissions, vacation and sick leave pay—may be entitled to the highest priority treatment in most cases under the Bankruptcy Code - up to an amount not to exceed $11,725 (currently). As with most things, it's all in the details. For example, the Bankruptcy Code requires that the wages being claimed by the employee were earned within the earlier of: 180 days before the employer filed its bankruptcy petition; or, by the date the employer stopped doing business.

So, happily, there may a solution for the employee who is owed his or her hard-earned wages by an employer who filed for bankruptcy!

Passenger Safety: The Backpack Dilemma

Brett Markson — Thu, 18 Feb 2010 21:46:00 GMT

My family participates in a morning carpool. We take turns driving our minivans and SUVs packed with neighborhood kids to school each day. After repeatedly trying to engage the kids in morning conversation, I quickly figured out that the idea of small talk with the middle-aged dad from down the street is not cool to a 9 year old. By now, I know that my job is to drive, not talk. But when it comes to safety in my car, I pipe up. My latest pet peeve: school backpacks.

What do backpacks have to do with auto safety? A lot. The same kids who show no concern for getting out the house on time are indeed efficiency fanatics when it comes to exiting the car. As soon as the door slides open, I watch a mad dash for the schoolyard faster than a kid might say "hey, thanks for the ride mister." They are so fast I hardly even hear a single "goodbye." But that's another story.

The kids’ secret to a quick exit? They sit in the car with their backpacks firmly affixed to their backs. That way, with a snap of their seat belt release they’re out the door.

Here’s the problem. Sitting in a car with a backpack sandwiched between your torso and the seat is a recipe for head injuries, neck injuries and spinal cords injuries in the event of an auto accident. When used properly (and working properly), the seat belt is widely considered the most important safety device in an automobile. But when used improperly (or when not working properly), the seat belt can cause serious injury and even death.

A typical auto crash can be viewed as two collisions. The "first collision" occurs when the vehicle impacts another vehicle or a fixed object. The "second collision" occurs when a vehicle occupant impacts the interior of the vehicle. The second collision immediately follows the first collision. The purpose of a seat belt is to either prevent the second collision or minimize its injury-producing potential. A properly fitting lap and shoulder belt snuggly "ties" the occupant to the passenger compartment and allows him or her to "ride down" the crash, thereby minimizing or eliminating injurious occupant contact with the vehicle interior, such as the windshield, steering wheel or the roof.

A backpack wedged between the seat and the passenger leaves the passenger particularly susceptible to injuries. It adversely affects the fit of the belt and serves a wedge between the occupant’s head/neck/torso and the seat/headrest. In the event of an automobile collision, the occupant is left susceptible to head injuries, neck injuries and spinal cord injuries, to name just a few.

Given the serious risk of injury to our kids, there is no excuse for allowing kids to strap in with a backpack. And telling kids to take off their backpacks once isn’t enough. I’ve learned from years of experience that kids lack the capacity to remember this sage instruction. So, we get to remind them every morning.

Now, to those who say “school is only a short distance away, what’s the big deal?,” remind them that to consider the statistics. Progressive Insurance Co. polled 11,000 of its policyholders involved in auto accidents. Of those, over 50% of the auto accidents occurred within 5 miles of the policyholders’ homes. So chances are, if you are involved in an accident, it will occur close to home.

To those who say, “I’m extra careful with kids in the car,” remind them that they have no control over the guy checking email, talking on the phone, drinking a latte, and shaving while barreling through the neighborhood ‘cause he’s late to a meeting.

To those who say, “not my kids, not my problem,” first suggest that they withdraw from the neighborhood carpool altogether. Short of that, remind them that the law drivers are legally responsible for the safety of their passengers. That simple.

So next time that backpack-slinging crew of youngsters climbs aboard your trusty school transporter, wait until all backpacks are down before continuing the journey. That quick check will make all the difference in the event of a collision.

Be safe out there.

Driver Dies in Car Crash in Newhall Pass. Passenger Seriously Injured.

Brett Markson — Tue, 09 Feb 2010 00:06:00 GMT

The Santa Clarita Signal reports that during the recent rainstorm on 2/5/2010, Friday night, at 9:40 p.m., a fatal two-car collision occurred on Interstate-5 near the Calgrove exit. The article indicates that the 22 year old driver of a Honda Civic, Julius Glover, died and that the passenger, 24 year old Louisa Hezseltine, was seriously injured in the Santa Clarita car accident. We extend our heartfelt condolences to the family of Mr. Glover and pray for Ms. Hezseltine’s recovery. The CHP is investigating the cause of the crash.

Wet/Slippery Road Conditions

Rain is infrequent in the Los Angeles area. So, when it does rain, built up oil, dirt and debris make our roads slick and slippery. That can cause cars to lose traction and control. In rain, there are two key rules of the road: (1) slow down, and (2) leave space between your car and the cars around you.

Driver Negligence?

The CHP made no arrests and, according to the Signal, the CHP does not suspect that alcohol or drugs were involved. Many questions, however, remain. Why did the driver of the Mercedes lose control? Were the cars traveling too fast for the road conditions? Was the driver of the Honda following too closely? Was the driver distracted? On the cell phone? Texting? At Markson Pico LLP, our accident reconstruction experts piece together evidence from crashes like this Santa Clarita auto accident to explain how these events unfolded.

Dangerous Road Conditions?

Sometimes, drivers lose control due to dangerous road conditions—be that a defect in the design of a road, the failure to maintain the safe condition of a road, or even the failure to warn drivers about an upcoming dangerous condition in the roadway. Thorough investigation should be undertaken to rule out dangerous road conditions as a contributing factor.

Auto Safety Defect?

Questions about vehicle safety should not be overlooked. The Mercedes lost control and swerved into the Honda. Did the Mercedes lose control due to a defect in its traction control system? Did its braking system function properly? Was there a mechanical malfunction, vehicle defect, or tire failure that precipitated this tragedy?

And the Honda? Was it crashworthy? In other words, was the design of this vehicle reasonably sufficient to protect occupants in the event of a reasonably foreseeable crash scenario? Was there a practical and technically feasible alternative design that would have prevented the injuries without impairing the function of the vehicle? At Markson Pico LLP, our accident reconstruction consultants study the evidence and come up with answers.

Markson Pico LLP’s Santa Clarita personal injury attorneys help injury victims throughout the Santa Clarita Valley, Valencia, Newhall, Saugus, Canyon Country, Castaic, and beyond, to secure just compensation arising out of auto accidents like this one.