Monday, March 31, 2014


To Be Paid, Or Not to Be Paid, That is the Question:  Supreme Court Wrestles With Clothing to Reach the Naked TruthSandifer v. U.S. Steel Corp. (2014) 2014 DJDAR 1024.

My first thought about this U.S. Supreme Court case:  We filter out the best legal talent for high office to decide what the word “clothing” means?

Frankly, I’m inclined to write a ditty about “donning and doffing” – words so often repeated by these noble jurists that you would think the terms to have mystical significance, perhaps reaching to the level of “these penumbral rights” used by Justice Douglas in Griswold vs. Connecticut (1965) 381 U.S. 479. 

Instead of the weighty issue of whether a Planned Parenthood defendant could be prosecuted for providing contraceptives to a married couple, the issue in the recent case of Sandifer v. U.S. Steel Corp. (2014) 2014 DJDAR 1024, was the question of just what is “clothing?”  Perhaps it is like defining “the absence of clothing,” and we can say that we can know what it is by understanding what it is not.  In this way, Justice Potter Stewart to described his threshold test for obscenity in Jacobellis v. Ohio (1964) by writing famously:  “I know it when I see it.” 

Much of the business that occupies these great nine minds is the interpretation of federal statutes.  Sandifer is a look into the naked truth:  Supreme Court justices too have mundane daily work tasks that require their attention – in this case, does “donning and doffing” of work equipment qualify as “changing clothes” under Section 203(o) of the Fair Labor and Standards Act?  For those who care, the Court held that they and their lesser colleagues of the District Courts, need not spend precious juristic thought sorting out the time inserting an ear plug versus the donning of a shirt.  If the equipment was a minor part of the major time taken to “don and doff” then it was all to be treated as “clothing” under the Act.  Thus, these employees were not to be paid for getting dressed (or undressed) for work. 

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

“I Come to Bury This Employee, Not to Praise Him.

In employment discrimination cases, employers, like Marc Antony, come not to praise the employee, but to bury him. Unlike Antony, they mean it.  The employer’s oration might go like this, as taken from Scene II, in “Julius Caesar:”

Your Honor, Jurors, and Plaintiff’s counsel, lend me your ears;

I come to bury this Employee, not to praise him.The evil that men do lives after them;The good is oft interred with their bones;So let it be with this Employee. The noble Plaintiff’s counselHath told you this Employee was ambitious:If it were so, it was a grievous fault,And grievously hath the Employee answer'd it.Here, under leave of the Plaintiff’s Attorney and the rest--For Plaintiff’s Counsel is an honourable man;So are they all, all honourable men--Come I to speak against this Employee’s case for wrongful termination.He was my client’s worst nightmare, unfaithful and unjust to my client, but:But the Plaintiff’s counsel says he was ambitious;And Plaintiff’s counsel is an honourable man.Plaintiff’s counsel hath won many cases and brought home the spoils,Whose ransoms did the his own bank account fill:Does this same intent to enrich the present Plaintiff seem ambitious?When that my client’s managers have cried in frustration, this Plaintiff laughed.
Yet the Plaintiff’s attorney says the Plaintiff was ambitious;
And the Plaintiff’s attorney is an honourable man.
You all did see that on the Lupercal
My client presented him warnings, and a performance improvement plan,
Which he did thrice refuse: was this ambition?
Yet the Plaintiff’s attorney says he was ambitious;
And, the Plaintiff’s attorney, he is an honourable man.
I speak not to disprove what Plaintiff’s counsel spoke,
But here I am to speak what I do know.
My client did love the Plaintiff once, not without cause:
What cause withholds you then, to vote for him?  I will tell you!
O judgment!  Give my client judgment, for truth has fled to brutish beasts,
And give us jurors who have not lost their reason. Bear with me;
My heart is there with my client, the employer,
And I must pause till it come back to me.
Good work should be made of sterner stuff:

An employee’s performance, like a new lover, is first seen unblemished, and flaws are but charming accouterments, until the day a new supervisor or manager enters the picture with a bias to grind.  Then those little omissions, those slight deviations, that accidental entry, are the mountain peaks of error, rising like the Tetons. All to this purpose: to establish that the victim deserved what she got:  she was incompetent, defective in the extreme, unworthy of her job.  Certainly, no discrimination was at play.

Which brings us to the case of Cheal v. El Camino Hospital (Jan. 31, 2014) 2014 DJDAR 1331 (6th App. District – Santa Clara County).  I cite this case because it reveals the world of Summary Judgment in discrimination cases, and because it reveals the heavy hand of some trial judges unwilling to clear the smoke of a “thousand insults” thrown at the employee in the moving papers.  The Cheal court described this “smoke” as “the deluge of statements, counterstatements and objections, that mark modern summary judgment practice.” 

Cheal is a droning of details deep into the daily work performance of a hospital dietician, or “menu tech” whose job was to prepare daily menus for hospital patients in compliance with doctor orders.  The Defendant filed 77 alleged “undisputed statements of fact” to support its motion of summary judgment, most of them going to Cheal’s work deficiencies.  The Court of Appeal, God bless them, somehow found the time and interest, to wade through these, and to then examine the merits of each against the “triable issue of fact” standard.  Most of the decision is written as a microscopic account of how Cheal put the truth of Defendant’s performance charges in issue. 

Here is what is useful to the employee from this decision (as well as instructive to the Defendant Employer bringing the motion):

    Proof that the Plaintiff’s work performance was not satisfactory to the employer is not the relevant question or standard.  [For surely, the employer in its motion will always “beg the question” that the performance was not satisfactory.]  The question is:  what level of competence did the employer truly require as the operating standard for all employees?  The related secondary question is:  what level of performance relative to this standard did the employee actually provide? 

2.     A smart employee’s attorney opposing the motion will obtain evidence that other employees in like circumstances committed a higher rate of error, but were not disciplined in like manner AND that these “favored” employees were outside Plaintiff’s “protected category.” 

3.     The employee must attack the Defendant’s “smoke screen” of “counselings” and “coachings” for what they often are:  casual remarks made in passing that no reasonable employee would consider a criticism or warning.  Further, the Cheal Court cited evidence that the “coaching” was presented in the MSJ as disciplinary action when there was no evidence to support that the infraction incurred as charged. 

4.     It is critical that in the MSJ, and of course, at the time of the employer-employee disciplinary exchange itself, the employee expose the lack of truth behind the performance criticism.  The Cheal court relied heavily in its decision on rebuttal evidence that the infraction did not occur or was not as severe as represented in the moving papers.  For example, one contention was that Plaintiff erroneously failed to stamp a patient’s menu sheet as “pudding thick” with the result that the patient received food that was “honey thick.”  Surrounding this issue was a complex web of other issues:  a) why did the employer not have a stamp for “pudding thick,” if the employer thought the designation so critical; b) the defendant’s manager relied on statements by a speech therapist who informed her that the patient had been fed “honey thick” over 3 days, but when deposed, the speech therapist denied making that statement; c) there was evidence that the error was committed not by the plaintiff, but by another employee; and d) that the error was not attributable to any fault of the Plaintiff who did not have the opportunity to check the accuracy of the other employee’s work. 

Just summarizing this single factual dispute on the matter of “cause to terminate” is mind-numbing, and frankly boring.  Part of me wants to scream “who cares?” The answer is:  the Court of Appeal cares, then so must the Plaintiff and the Plaintiff’s attorney.  The Cheal Court devoted pages of detailed recitation of the evidence for this issue, as well as 3 other similar detailed and complex clusters of factual dispute concerning “performance competency.” 

5.     The Cheal court raised an important point of evidence where the decision maker utters a hearsay statement to a co-worker or friend indicative of bias:  the statement may be admissible as a “declaration against interest,” where the “interest” in question is the risk of losing one’s employment if the employer learns that a manager harbors such discriminatory attitudes.  In this case, Cheal’s manager said to a friend (turned Plaintiff’s witness) over a private dinner that the manager favored younger, pregnant women.  Cheal was neither younger, nor pregnant.  Hence, the statement was useful, but subject to Defendant’s objection in the MSJ as hearsay.  The Plaintiff sought to have the statement to be a “party admission” because authorized by the Company, or on the basis of Evidence Code Section 1224 [a vicarious admission].  The Cheal court rejected these approaches, and independently found that the statement was admissible because the manager made the statement knowing the statement put her employment at risk.  Therefore Evidence Code Section 1230 [“declaration against interest”] applied as an exception to the hearsay rule.  This is the first case to make such an evidentiary holding in California.  It will be a useful tool for Plaintiff’s attorneys’ in future Summary Judgment motions. 

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Sunday, March 17, 2013


"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Sunday, February 24, 2013

Imagine: Greater Productivity With Less Stress

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Monday, December 24, 2012

Ebenezer Scrooge Is Rebuked, and Tiny Tim Gets His Referral Fees.

In a battle over one-third of $13.5 million, let the gamesmanship begin. Two Orange County law firms were engaged in a battle to share class action attorney fees. The battle was between the referring class-action attorney and the prosecuting class-action attorneys.   The key rules of the gamesmanship were: 1) Rule of Professional Conduct 2-200 and 2) Rule of Court 3.769.

Rule 2-200 requires that an attorney  to provide full disclosure to his client  of any proposed fee sharing agreement and  that he obtain his client’s  prior written consent for the fee splitting.   Rule 3.769 requires that as part of a class action settlement, the trial court, in order to award attorneys fees, must be provided with the full retainer agreement between the attorney and the class.

In the case of a class action, the named class representives ordinarily would sign the Rule 2-200 fee splitting agreement on behalf of the class.  In this case,  matters became complicated when the referring attorney settled a separate individual whistleblower case against the same employer-defendant named in the class action.  The referring attorney as part of the settlement of the separate individual whistleblower case agreed to confidentiality of all matters learned in the individual litigation. 

Now the class-action attorney, after several years of assuring the referring attorney that the referral fee was to be paid, asserted that a fee arrangement with the referring attorney would risk creating a “conflict of interest” between the attorneys and the class clients.  That is, presumably, the defendant employer would assert that the class attorneys should be disqualified from representing the class because they were in violation of the confidentiality agreement of the referring attorney. 
The exact nature of the conflict is not spelled out in the Court of Appeal decision, but the confidentiality clause was prospective only, that is, information shared with the class action attorneys by the individual plaintiff attorney before the settlement could not be the basis for a conflict of interest.

This latter point is of some relevance because it tended to show that the class-action attorneys were using a bogus reason to lock out the referring attorneys claim for fees. The tactic used by the class-action attorneys was to  dismiss the originally filed class-action which used the names of the class representatives  provided by the referring attorney.  The class-action attorneys then refiled the class-action using the names of different class-action representatives, hoping thereby to defeat the referring attorneys lien for fees.

The class action attorneys' ploy was simply this: there can be no referral fee paid because there was no signed agreement to split fees as required by rule 2-200. Consequence: the class-action attorneys were roughly  $4 million richer. One wonders if this diligent assertion  of Rule 2-200 was motivated by a noble desire to comply with the high purposes of Rule 2-200 to protect the public from conflicts of interest, or, was simple old-fashioned greed?

 The Court of Appeal, Justices Rylaarsdam, Aronson, and newly appointed Presiding Justice Ikola unanimously held for the referring attorney.   The Justices basically recognized that the procedural tactics of the class-action attorneys had unjustly prevented the referring attorney from notifying the court of its fee sharing arrangement. The court found that the reason the contract was not signed was due simply to switching class-action representatives. The Court of Appeal noted that this kind of “bait and switch” tactic would discourage class-action referrals, and that would be harmful to the public. That is, attorneys should be encouraged to refer cases to specialists within various areas of law.   The Court stated that class-action attorneys cannot wield Rule 2-200 as a sword to obtain unjust enrichment. 

 I am personally happy with this Court of Appeal ruling.  In my opinion, the Court simply refused to allow an ethical rule to be used for unethical purposes.

For the full decision, see:  Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler 2012 DJDAR16991 [Filed Dec. 19, 2012]

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Saturday, December 01, 2012

Making Space for Creativity in the Practice of Law

My experience with the "Creativity Crash Course" at the Stanford Online has motivated me to make some changes in my law office environment: 1) converted my entire hardware and software to Mac, 2) shifted to cloud based backup, and shfited to a fully wireless network 3) have gone fully paperless, 4) use wireless dictation and Dragon transcription, 4) dumped my rectangular desk and all file cabinets for a single round desk and a stand up laptop work station, and 5) added new artwork that communicates calm and "openness." The overall idea: greater productivity through more physical and emotional space and an invitation to collaborate and "move" while working.
"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Wednesday, November 28, 2012

Harvard University has created a massive data base from online testing for "Implicit Preference." Unconscious bias is our innate neurological filtering process that allows us to quickly assess "safety" from "danger" Our task in a complex modern society is to sort out useful and harmful biases. "Unconscious bias" is not a matter of being a "bad" person. Biases however can cause us to evaluate co-workers and acquaintances not only inaccurately, but also illegally. The challenge of the law is to implement a system of proof that allows a jury or judge to infer bias operated from circumstantial evidence. I think expert psychological opinion is sometimes needed to support how bias operates in managers who will vigorously declare under oath: "I am not biased."

"If the pink slip doesn't fit, get redressed!"
Social Media to see my complete social "pink slip" wardrobe.

Sunday, October 28, 2012

Current Creativity Exercise

 I'm participating in a six-week Stanford University online creativity class involving 30,000 people from all over the world organized into creative teams. This week's assignment is to "be more attentive."  Specifically, we are to observe and record what we see at four retail outlets. From these observations will come opportunities to improve the way customers are serviced.

I am a lawyer and writer, and  maybe more importantly I'm a dad. Every one of these roles requires I pay attention and come up with creative solutions. I'm sure creativity is a major part of your world also.  Why not reframe the way you look at the world today to explore the possibility of other answers?

 The picture is my team's report from our first week. Fairly clear from the outset was that we were to create not only the way we approach a problem but the way we report the solution.