Legal Updates

How Naked Twister Can Affect Employment Claims


How Naked Twister Can Affect Employment Claims

Will your Facebook posts negate your employment claim?

Not too long ago, before social media, if people talked about playing naked twister, or going into hot tubs au naturel, they kept such discussions private and behind closed doors. Now, however, many of those same folks are comfortable posting about such activities on their (or their “friend’s”) Facebook wall. One woman in Tennessee did just that. Unfortunately, for her, she was also claiming that her workplace was a sexually hostile work environment.

In my post titled “Social Media and Employment Law: Naked Twister and Litigating Employment Claims” I detail more about this litigant’s claims, her Facebook posts, how the defendant (former employer) utilized such posts, and what the Judge decided at summary judgment. Let me know in the comments section how you would determine the case if you are on the jury (based on the limited facts), and whether you think discovery into such posts is reasonable/relevant, or should be off-limits.

Employers: Six Policies To Update Along With Your Social Media Policy


Employers: Six Policies To Update Along With Your Social Media Policy

Does your business have a social media policy?

Has your company been working diligently to create a state-of-the-art Social Media policy? If not, it should. And, it shouldn’t stop with just that one policy. Due to the omnipresence of social media, employers should also update many of their other policies (including some policies that do not have an obvious link to employee use of social media).

In my article, titled: “Social Media Policy For Employers: 6 Additional Key Policies To Update” I focus on a few somewhat obvious, and a few not-so-obvious, policies that employers should update to make sure they are coordinated with the company’s social media policy. My August 2012 Social Media and Employment Law contribution to Windmill Networking analyzes only six policies. But, there are many more. Let me know if you can think of others and what your company is doing, or has done, to update such policies and Employee Handbooks.

ADR for Employment Disputes


ADR for Employment Disputes

What do you do if you have an employment dispute?

The California State Court System is faced with deeper and deeper budget cuts, staff reductions, and slow-moving dockets. An article titled “Court Funding and the Impact of Budget Cuts On Access to Justice” in the August 2012 issue of the Contra Costa Lawyer magazine complies some of the recent news articles about the dire situation. The August 2012 issue also contains several articles geared towards ADR – Alternative Dispute Resources.

I, along with a colleague, Michelle Regalia McGrath, wrote about ADR geared towards employment claims, including wage and hour, discrimination and harassment. We provide analysis of how employers and employees can avoid disputes in the first place, and some alternatives to Court, including the Labor Commissioner’s Office, the California Department of Fair Employment and Housing, and the U.S. Equal Employment Opportunity Commission. I invite you to read our article and let us know of other alternative dispute resources you or your employer have taken advantage of to avoid a lengthy court case.

Social Media and Employment Law


Social Media and Employment Law

I am honored and excited to let you all know that I have become a monthly contributor to Windmill Networking, an organization dedicated to helping businesses and professionals leverage social media. Not surprisingly, I am providing content on the topic of Social Media and Employment Law. My monthly posts will appear during the first week of each month. Of course, I will continue to post updates here as well.

My April 2012 post is titled “Employers Be Cautious Using Social Media To Screen Job Applicants.” This article looks into the use, pitfalls, and challenges of using social media in recruiting and hiring, and discusses the well-publicized topic of employers demanding social media (Facebook) login credentials from applicants.

My May 2012 article examines guidance from the National Labor Relations Board regarding employer policies on social media in the workplace. This post is titled: “Employers: Don’t Ignore These Two Acronyms for Social Media Policy Compliance.

Windmill Networking is lead by Neal Shaffer, a Forbes Top 30 Social Media Power Influencer, and the blog where my posts appear is an AdAge Top 150 Global Marketing Blog. Not only will you find my monthly posts, but you will also be able to read tips on how you and your company can use all types of social media for marketing, public relations, B2B, and more.

CA Supreme Court Denies Attorney’s Fees For Meal And Rest Break Claims


CA Supreme Court Denies Attorney’s Fees For Meal And Rest Break Claims

On the last day of April, the California Supreme Court issued its second significant decision of the month concerning meal and rest break claims in California. Like the Brinker v. Superior Court decision, issued on April 12, 2012, the Kirby v. Immoos Fire Protection, Inc. case is favorable to California employers.

In Kirby, Plaintiffs alleged seven causes of action in their Amended Complaint, the sixth of which alleged the failure to provide rest breaks as required by California Labor Code Section 226.7. At the trial court level, in February 2009, Plaintiffs’ dismissed their rest break claim, and in April 2009, Defendant filed a motion to recover attorney’s fees under California Labor Code Section 218.5 for having prevailed on the rest break claim. The trial court eventually ordered Plaintiffs to pay nearly $50,000 in fees to Defendant. Plaintiffs appealed, but the Appellate Court sided with the trial court. The California Supreme Court, however, overturned the lower-court’s order and determined that no party is entitled to recover attorney’s fees even if that party prevailed on meal and rest break claims.

Though this particular Defendant lost an award of approximately $50,000, most defendants in any such future claims can view this case as very favorable. Essentially, this decision tells potential plaintiffs, and their lawyers, that even if they prevail on such claims, they will not be entitled to attorney’s fees on such claims. This decision reduces some of the leverage plaintiffs had regarding such claims during litigation and especially during settlement negotiations. Further, most defendants rarely pursued attorney’s fees even if they prevailed on such claims anyway since they were rarely awarded, and even if awarded, prevailing defendants knew it was unlikely they could collect any money from the typically asset-poor plaintiff(s) who bring such claims. Thus, while this Defendant may have lost this battle, it won the war on behalf of other defendants concerned about courts awarding attorney’s fees to plaintiffs who prevail on meal and rest break claims.

This case likely will also influence how plaintiffs pursue such claims in the future and will encourage plaintiffs to bring other claims where attorney’s fees can be awarded under the Labor Code. The decision may also drive more plaintiffs to pursue meal and rest break claims via the California Labor Commissioner’s office which is generally faster and cheaper than litigating in court.

For those of you who are interested in Court’s analysis of the competing Labor Code sections, a short summary is here: The Court pointed out that Labor Code Section 218.5 requires the awarding of attorney’s fees to the prevailing party “[i]n any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.” The Court further noted that this provision awards fees to the prevailing party whether it is the employee or the employer; it is a two-way fee-shifting provision. However, Labor Code Section 218.5 “does not apply to any action for which attorney’s fees are recoverable under” California Labor Code Section 1194, which provides that employees who prevail in any action for any unpaid “legal minimum wage or . . . legal overtime compensation” are entitled to recover attorney’s fees; it is a one-way fee shifting provision.

According to the Court, the first question was whether attorney’s fees were recoverable under Labor Code Section 1194. Since rest breaks do not constitute a “minimum wage,” the Court found that attorney’s were not available under Labor Code Section 1194.

Next, the Court considered whether attorney’s fees were recoverable under Labor Code Section 218.5. The Court found that rest breaks do not constitute wages of any kind, and thus, Labor Code Section 218.5 was not applicable to the claim. In analyzing the various sections of the Labor Code, the Court also examined their legislative histories. And, while the Court found that no party is entitled to attorney’s fees for such claims, it noted that the legislature could easily broaden the Labor Code in such situations.

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