Friday, May 12, 2017

California's Public Civil Rights Agency Reaches Agreement with Airbnb to Combat Discrimination

California's Department of Fair Employment and Housing (DFEH) has reached an agreement with Airbnb, the online "sharing economy" platform that allows individuals to rent their homes to guests, that will support ongoing efforts to reduce bias and combat discrimination on Airbnb's platform.

Criticism of Airbnb began with a 2015 Harvard School of Business study that found guests with African-American sounding names had a tougher time renting rooms on Airbnb's platform than guests with white sounding names. In early 2016, DFEH began investigating taking action against Airbnb after reports of discrimination on Airbnb's platform became widespread on social media. 

At the time, Bryan Schwartz Law Associate Logan Talbot was working at the DFEH as a Civil Rights Fellow. Talbot was asked by the agency to research the issue and explore the agency's options for action. Talbot drafted a memorandum for DFEH Director Kevin Kish that recommended pursuing a Director's Complaint against Airbnb, alleging that Airbnb may have engaged in acts of discrimination and failed to prevent discrimination in violation of California's Fair Employment and Housing Act and Unruh Civil Rights Act.

DFEH thereafter filed the Director's Complaint. On April 27, 2017, the DFEH issued a press release stating that the agency had reached a voluntary agreement with Airbnb to combat housing discrimination on Airbnb's platform. Under the Agreement, Airbnb will advise all renters in California who complain of discrimination of their right to file a complaint with DFEH. Additionally, Airbnb will regularly provide reports to DFEH on complaints of discrimination by Airbnb users in California and guest acceptance rates by race and national origin in California. The Agreement also provides that Airbnb employees who review Airbnb Host and Guest complaints will receive training on how to recognize complaints of discrimination and the proper methods for referring discrimination complaints to Airbnb's anti-discrimination team. As part of the agreement with DFEH, Airbnb will also post on its website and email to all California Hosts a notice of the opportunity to obtain free online unconscious bias training. 

The agreement also allows for DFEH to conduct fair housing testing on California hosts who have been the subject or one or more discrimination complaints and have three or more listings on Airbnb's platform. Airbnb has agreed to not interfere with DFEH's fair housing testing and will allow them to create accounts and profiles for such testing.

“We will continue to work collaboratively with Airbnb to prevent racial discrimination by its hosts,” said DFEH Director Kevin Kish. “California is committed to removing all discriminatory barriers in housing, including in new platforms and marketplaces. Fair housing testing is an important and powerful tool in enforcing fair housing laws.” 

Saturday, April 29, 2017

A Single Racial Slur Can Support a Hostile Work Environment Claim

For a harassment claim to be actionable under Title VII of the Civil Rights Act, the workplace conduct “must be sufficiently severe or pervasive to alter the conditions of [the victim’s] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). Employers frequently seek to escape liability for harassment by arguing that the discriminatory conduct alleged by the employee was too minor to create liability.

Now the Second Circuit Court of Appeal, in New York, has ruled that the single use of a racial slur can form the basis for a hostile work environment claim under Title VII, when viewed together with other seemingly “neutral,” i.e. non-racial, harassing behavior. Daniel v. T&M Protection Resources LLC, __ Fed.Appx. ___, 2017 WL 1476598 (2d Cir. Apr. 25, 2017).

In Daniel, an unrepresented employee, Otis Daniel, appealed a district court order dismissing his hostile work environment case against his former employer on summary judgment. Mr. Daniel had alleged numerous incidents of harassment during his 15-month period of employment. The vast majority of incidents alleged were not specifically racist, on their face. But, he also alleged that his supervisor once addressed him as “you fucking nigger.”

The Court held that the district court erred when it determined, as a matter of law, that Mr. Daniel failed to alleged facts sufficient to support a hostile work environment claim based on race. The Court explained, that “[b]ecause ‘some evidentiary basis’ existed for inferring that [a] ‘neutral’ incident was animated by hostility because of Daniel’s race, [the district court should have considered that evidence] as part of Daniel’s racial harassment claim.” Slip Op. at *2. That is, where a supervisor makes a racially-charged statement to his or her subordinate employee, on summary judgment a court should consider that fact together with other incidents the employee alleges were harassing, but not overtly racial in nature.

The Court did not need to rule on the question of whether the “one-time use of the slur ‘nigger’ from a supervisor to a subordinate can, by itself, support a hostile work environment claim.” Daniel, Slip Op. at *1 (emphasis added). However, the Court of Appeals did conclude that the lower court “improperly relied on our precedents when it rejected this possibility as a matter of law.” Id. at *1. The appellate court explained that Second Circuit case law does “not foreclose the possibility that the one-time use of a severe racial slur could, by itself, support a hostile work environment claim when evaluated in the cumulative reality of the work environment.” Id. at *1. The Court highlighted  dicta in Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014) that “‘perhaps no single act can more quickly alter the conditions of employment and create an abusive working environment than the use of an unambiguously racial epithet such as nigger by a supervisor in the presence of his subordinates.’” Slip Op. at *1 (emph. added by Daniel court).

If you have been the victim of a racial slur, that illuminates the true motivation behind other unfair treatment by an employer, and you want to discuss this with an attorney, contact Bryan Schwartz Law today.




Friday, April 28, 2017

Defeating Chindarah v. Pick Up Stix Releases

California employers sometimes seek to nip wage and hour class actions in the bud by buying off individual class members for nominal payments. At least one poorly-reasoned California appellate decision, Chindarah v. Pick Up Stix, 171 Cal. App. 4th 796 (2009), seems to permit it. In a recent independent contractor misclassification class action brought by Bryan Schwartz Law, Marino v. CAcafe, the primary defendant tried just such a tactic, mere weeks after the case was filed late last year. The corporate manager asked each employee-former employee to sign a release based upon a supposed “restructuring” but failed to disclose the existence of the workers’ just-filed lawsuit. The U.S. District Court for the Northern District of California issued a strongly-worded opinion, invalidating all releases improperly obtained from putative class members by the defendants, despite Chindarah, and ordering related relief because the employer’s “communications with the putative class members concealed material information and were misleading.” Marino v. CAcafe, Inc. et al., Case No. 4:16-cv-06291-YGR, slip op. at 3 (filed Apr. 28, 2017) (full opinion available here).



The court explained that “[w]hile the evidence does not indicate the high degree of coercion present in other cases, the fact remains that [the defendants] communicated with putative class members after the lawsuit was filed, but before they had received any formal notice and before plaintiff’s counsel had been given an opportunity to communicate with them.” Id. at 3. Importantly, the defendants’ “communications did not inform putative class members that there was a lawsuit pending that concerned their legal rights, the nature of the claims, plaintiff’s counsel’s contact information, the status of the case, or any other information that might have permitted them to allow them to make an informed decision about the waiver of their rights.” Id. at 4. This conduct “undermine[d] the purposes of Rule 23 and require[d] curative action by the court.” Id. at 3. To correct the harmful effects of defendants’ improper communications, the court:
·     invalidated all releases obtained from putative class members,
·     prohibited the defendants from requesting any reimbursement of payments made,
·    ordered curative notice be issued to all putative class members regarding their rights and the court’s intervention on their behalf (paid for by the defendants),
·    enjoined the defendants responsible for making the communications from engaging in any further ex parte communications with putative class members regarding the litigation or any release of claims until the court has the opportunity to rule on the issue of conditional certification of the FLSA collective action, and
·   ruled that class members who signed releases in exchange for payments could keep those payments, regardless of the outcome of the case.
Id. at 5.

Workers’ advocates should not hesitate to bring motions for corrective action when defendants attempt to subvert the rights of workers and Federal Rule of Civil Procedure 23 (governing class actions) by embarking on a Chindarah campaign. A court need not find a high degree of coercive conduct on the part of an employer to warrant invalidation of releases obtained from putative class members. If the employer uses misleading tactics to obtain releases from putative class action members – like omitting the fact that a class action has been filed against the defendant for wage violations, and failing to disclose contact information of the plaintiffs’ lawyers – then you may have strong grounds to remedy the defendant’s misconduct. See generally Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981); Retiree Support Grp. of Contra Costa Cty. v. Contra Costa Cty., 2016 WL 4080294, at *6 (N.D. Cal. July 29, 2016) (collecting 8 cases).

Contact Bryan Schwartz Law with any questions about questionable releases of wage and hour claims.

Wednesday, April 12, 2017

Vital Signs of the Rule of Law in California's Workplaces

Republished from California Labor & Employment Law Review, Vol. 32, No. 2, March 2017, Message from the Chair, Bryan Schwartz

Home late again from an out-of-town deposition, I lie very silently next to my three year-old son and smile to hear him breathing. Cracking open the door of my daughter's bedroom, I feel relieved to see her shift slightly while sleeping. I head to bed and listen for my loving partner's heartbeat.
These are the vital signs - the breathing, the gentle movement, the heartbeat. The deposition also - and the many hours it took to prepare for it, the documents my opposing counsel gathered beforehand, the hours we pored over them to learn the facts of the case, and the briefing and hearing that will come soon when we argue our respective points -these constitute the behind-the-scenes lifeblood of the rule of law; and they are also born from love.
This love binds my opposing counsel and me. I sue companies and agencies and people for alleged mistreatment of workers. They defend them. Yet, we are all married to the same system where our respective client's positions are entitled to impartial consideration through a many-layered process, where each of us can be heard and our clients' rights considered against the same body of law. 
We know that sometimes this process is tedious, that it sometimes keeps us away from our loved ones, and that it leaves us sleep-deprived. But, this process keeps America and California alive. By serving this process, we express our patriotism and our love. We know that it takes more than just blood on the battlefield to protect our nation. It takes the law. In our daily practice are the vital signs of democracy.
Even someone as different from me as Dan Burton can agree. He is a Tea Party Republican from Indiana who served for 30 years in the House of Representatives. In 1998, he was seeking appointment of an independent counsel to investigate the Clinton administration and invoked "the need to inform the American people of the threats to our judicial system by an administration which thinks that it is above the law." He said, "No one in this country should be above the law. The law...should be administered equally, whether it is the lowest person in the United States or the person occupying the highest office, the President of the United States."1 Whether or not I agree with his politics, Rep. Burton and I agree about the law's superiority over any individual.
We are in good company. More than two centuries earlier, in The Federalist No. 78, Alexander Hamilton wrote that "the Constitution ought to be preferred to the statute, the intention of the people to the intention I of their agents," thereby fighting for a Constitution that would imbue the judiciary in our nascent republic with the power to interpret the law and the original will of the people. This will exceeds the will of any elected official, or any number of them. We shepherd the judiciary, and the juries of our clients' peers, in this sacred work of nurturing a healthy Constitution. The Bar's Labor and Employment Law Section educates us to better perform this duty-in the most well-informed, ethical, and collegial manner. 
 We know all this, of course, but right now we must remember it every day as labor and employment lawyers in California, listening for democracy's vital signs at all hours. None of us want California workplaces where women are unsafe from harassment and assault, where people with disabilities do not have fair opportunities to contribute, where people of some races and national origins are treated worse than others, where hardworking men and women cannot earn enough to feed their families. None of us want those who violate the law to gain unfair business advantages over those who play by the rules-the rules that are in our charge. Because of us, California employers know how to hire workers fairly, how to pay them lawfully, and how to hold them accountable when they fall short. Sometimes our clients let us down, sometimes we have second thoughts about advice we give, or about a legal strategy we pursue. Our basic commitment to the rule of law, though, persists.
No matter what happens, for the nearly 20 million Californians in the labor force, and many millions more depending on them, nothing could be more important than what we do keeping the organs of our democracy healthy and continuing to shape and enforce a rule of law for the state's workplaces. Though hearing a ping on my phone when an ECF notification comes across is surely not as sweet a sound as my little boy's night time breathing, it is also vital.

ENDNOTES
1. 144 Cong. Rec. 20416 (Sept. 15, 1998).

Wednesday, April 5, 2017

Seventh Circuit Holds Federal Law Prohibits Employers From Firing People Because they are Gay

Before the full panel, the U.S. Court of Appeals for the Seventh Circuit issued a groundbreaking decision, holding 8-3 that workplace discrimination based on sexual orientation violates federal civil rights law.

The case involved a lesbian, Kimberley Hively, who sued Ivy Tech Community College when it denied her full-time employment and promotions because she was a lesbian and married to a woman. Hively began teaching at Ivy Tech in 2000 as a part-time adjunct professor. Between 2009 and 2014, Hively applied for at least six full-time positions, but each of these efforts were unsuccessful; even worse, in July 2014 her part-time contract with Ivy Tech was not renewed, resulting in her termination.

After she was terminated, Hively filed an administrative complaint with the Equal Employment Opportunity Commission, alleging that Ivy Tech discriminated against her because of her sexual orientation and violated her rights under Title VII of the Civil Rights Act of 1964. After the trial court dismissed the case, the Seventh Circuit initially affirmed the the trial court's decision based on decades of case law that held sexual orientation was not a protected category under Title VII. Hively v. Ivy Tech Cmty. Coll., 830 F.3d 698 (7th Cir. 2016). 

Before the Seventh Circuit's full panel, Chief Judge Diane Wood, writing for the majority, brought new life into analyzing claims of sexual orientation discrimination under Title VII. The court framed the main question of the case as a question of statutory interpretation: what does it mean to discriminate on the basis of sex, and in particular, are actions taken on the basis of sexual orientation  a subset of actions taken on the basis of sex?

Guided by the U.S. Supreme Court's approach in a related case addressing whether Title VII covered sexual harassment inflicted by a man on a male victim (Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)), the Seventh Circuit acknowledged that discrimination on the basis of sexual orientation may not have been the principal evil Congress was concerned with when it passed Title VII. The Seventh Circuit nonetheless found that "statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which [courts] are governed." Id. at 79-80. The court also acknowledged that Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman simply because of her gender.

Hively framed her argument for why she should be covered by Title VII under two approaches: (1) a simple comparison isolating Hively's sex and the significance it played in her employer's decision; and (2) relying on Loving v. Virginia, 388 U.S. 1 (1967), which found that the Fourteenth Amendment of the constitution protects interracial marriages, holding that Title VII protects Hively's right to associate intimately with a person of the same sex. 

Under the first approach, the court found that if Hively had been a man married to a woman, and everything else would have stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. The court stated that "any discomfort, disapproval, or job decision based on the fact that the complainant - man or woman - dresses differently, speaks differently, or dates and marries a same-sex partner, is a reaction purely and simply based on sex," falling within Title VII's prohibition against sex discrimination. 

Addressing the second theory of discrimination presented by Hively, the court, relying on decades of cases holding that Title VII prohibits discrimination based on the race with whom a person associates, found that Ivy Tech's discrimination against Hively based on the sex of the person she associated with is also prohibited under the act. 

The court concluded with a clear holding: a person alleging that he or she experienced employment discrimination on the basis of his or her sexual orientation has put forth a case of sex discrimination for Title VII purposes. 

This is a landmark decision for the LGBTQ community, extending federal employment protections in Wisconsin, Illinois, and Indiana, which previously had state laws that only prohibited employment discrimination on the basis of sexual orientation with regards to state employment. This decision will now cover all private and public employers subject to Title VII. And, this will hopefully lead to other U.S. Circuit Courts revisiting this issue and expanding employment protections across the country for the LGBTQ community.

In California, the state's Fair Employment and Housing Act and Unruh Civil Rights Act have explicitly protected sexual orientation and gender identity from discrimination in employment, housing, and public accommodations for many years. Last year, California's Department of Fair Employment and Housing became the first state civil rights agency to issue guidance to employers regarding transgender employees.

If you have experienced discrimination based upon your sexual orientation, and need help, contact Bryan Schwartz Law.

Thursday, March 16, 2017

A Muslim Ban by any other name is still a Muslim Ban

  
           Trump’s sleight-of-hand attempt to disguise his pandering to bigotry, by banning visitors from nations that are 90-99% Muslim, has failed…again. Another Steph Curry-like three-pointer for the Founding Fathers, creating an independent judiciary, a nation grounded in the Rule of Law. As Thomas Jefferson said in the Statute of Virginia for Religious Freedom (which led to the Bill of Rights),"our civil rights have no dependence on our religious opinions any more than our opinions in physics or geometry...." Executive Order No. 13,780 (aka the Muslim Ban): Temporarily Restrained.

            Judge Derrick K. Watson: yesterday you occupied just one of 678 district court judgeships authorized by Article III of the Constitution, sitting in one of our most geographically isolated and one of our smallest states, in the District of Hawaii. Today you are a hero, the giant to protect that Constitution against a would-be tyrant, striking down the repackaged Muslim Ban in a strongly-written opinion (read it: here).

             “The Government’s premise is not true,” Judge Watson wrote. How often will we hear these words during the Trump presidency, as he tries to sell us the moon, saying it is really the sun? The Constitution and Bill of Rights that protect, among other things, religious freedom, and prevent establishment of a state-favored religion in the United States (The Establishment Clause), are not a game, Mr. Trump. This is not like real estate – where to bolster your ego you can apparently pretend a 58-story building has 68 stories, as Trump has for decades.   

            "The illogic of the Government's contentions is palpable," Judge Watson said, as Trump’s minions dissembled. The Ban’s apologists tried to say that terrorism would increase by continuing to allow in people from six Muslim countries, based upon two examples: an Iraqi, and a Somalian native who came as a child and later became a citizen. The repackaged ban omits Iraq, and allows an exception for such children. So, your Ban would do nothing worth doing, but would only fan the flames of nationalism at home, and throw gasoline on the fires of anti-American animus abroad.

            Brave Imam, Ismail Elshikh, Ph.D., who stood up for his family, and all Muslims, and for democracy in America, explaining how these shenanigans would keep his mother-in-law, a Syrian national, from visiting, how saddened he and his family have been by the message of the Trump administration, that “the United States—their own country—would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who hold the same religious beliefs.” Dr. Elshikh’s children “do not fully understand why this is happening, but they feel hurt, confused, and sad.”

            Perhaps the best part of the Court’s decision was that it held Trump accountable for all his bigoted campaign statements, when he telegraphed exactly what he intended with this Muslim Ban. Trump had the temerity to argue, “Courts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Well, that’s just not true, either: “courts may not ‘turn a blind eye to the context in which [a] policy arose.’” When we prove discrimination, we use inferences and circumstantial evidence – very few modern bigots are foolish enough to speak openly of their animosity.

Fortunately, though, Trump is such a fool -  or as the Court put it, more elegantly: “The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.” Trump said he thinks “Islam hates us,” and that it’s “very hard to separate” the religion from anti-American hatred, and articulated his future policy: “[W]e can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.” He later revealed that he was “morphing” the Muslim Ban into a ban on particular (almost-all-Muslim) territories, calling it “extreme vetting.”

            The Court beautifully summarized regarding the Administration’s disingenuous arguments:

The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)).
Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.
These plainly-worded statements, made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims.


            Thank you, Judge Watson. Today I am proud to be a civil rights lawyer in what is still the United States of America, one nation, indivisible, with liberty and justice for all.

Wednesday, March 15, 2017

California Companies Must Pay Salespeople for Rest Breaks Separately from Commissions

A. B. C. ... Always Be Closing.”

        - Alec Baldwin portraying Blake, Glengarry Glen Ross (1992).


Salespeople paid on commission are ingrained with an urgency to sell every waking minute, as exemplified by Alec Baldwin’s notorious “Always Be Closing” speech in Glengarry Glen Ross. But here in California, that motto needs some refining because two weeks ago a California Court of Appeal held that California-based inside salespeople paid only on commission must also be paid separate and additional compensation for ten-minute rest breaks.[1]

In holding that an employer is required “to separately compensate its sales associates for ... rest periods,” the Court of Appeal relied principally on the plain text of Wage Order No. 7 and a line of cases starting with Armenta v. Osmose, Inc., which “held that employers cannot comply with minimum wage obligations by averaging wages across multiple pay periods; instead, [t]he minimum wage standard applies to each hour worked by [employees] for which they were not paid.”[2]

The Vaquero court traced the holding in Armenta forward to its logical extension in Bluford v. Safeway Stores, Inc., where that court held that Safeway failed to meet its obligations to pay its truck drivers for all hours worked because it only paid its drivers based on “number of miles driven, the time when the trips were made, and the locations where the trips began and ended,” instead of also separately compensating its drivers for each ten-minute rest break they were entitled to take.[3] While the employer argued that its compensation system already incorporated payment for rest periods, the court was not persuaded because “[e]ven if that is so, it is akin to averaging pay to comply with the minimum wage law instead of separately compensating employees for their rest periods at the minimum or contractual hourly rate ... [which] is not allowed under California labor law.”[4]

Applying Armenta and Bluford to inside salespeople, the Vaquero court found that the employer’s compensation system for its salespeople failed to separately compensate for paid rest breaks (i.e., for non-productive time), and thus violated the California Labor Code requiring employers to pay for employees’ ten-minute rest breaks.[5] In particular, the Vaquero court reasoned that the draw system maintained by the employer – permitting the employer to claw back advances on future compensation if its salespeople did not exceed the minimum weekly pay – acted, “[a]t best ... [as] interest-free loans.”[6] As the Court explained, “when [the employer] paid an employee only a commission, that commission did not account for rest periods. When [the defendant] compensated an employee on an hourly basis (including for rest periods), the company took back that compensation in later pay periods. In neither situation was the employee separately compensated for rest periods.”[7] Accordingly the Vaquero court concluded that such a commission system “effectively reduces either rest period compensation or the contractual commission rate, both of which violate California law.”[8]

The Vaquero court noted that its decision would not stand as an obstacle to an employer using a lawful commission-based compensation system to incentivize its salespeople, nor would it “lead to hoards of lazy sales associates” because, like the company in Vaquero, employers can always require employees to “meet minimum sales expectations” and subject ineffective salespeople to “disciplinary measures up to and including termination.”[9] In other words, California salespeople can continue to always be closing, so long as their employers pay them separately for their ten-minute rest breaks.[10]
Bryan Schwartz Law previously blogged about a related case last year, which held that the same employer could not escape classwide liability for maintaining a compensation policy that failed to provide for minimum and overtime wages and related compensation when employees performed non-exempt work such as cleaning up the employer's stores or moving the employer's furniture products.

Bryan Schwartz Law also previously blogged about an important California Supreme Court decision issued last December, Augustus v. ABM Security Services, Inc., which clarified that an employer cannot require an employee to be on call during his or her ten-minute rest break without receiving an additional premium payment in the event that the employer interrupts the employee's ten-minute rest break (as explained by the California Supreme Court: "A rest period, in short, must be a period of rest.").
If you are an inside salesperson in California who is paid solely on commission without separate compensation for your ten-minute rest break, please contact Bryan Schwartz Law.



[1] Vaquero v. Stoneledge Furniture LLC, No. B269657, 2017 WL 770635, at *5 (Cal. Ct. App. Feb. 28, 2017) (“The parties disagree, however, whether California law, including Wage Order No. 7, required Stoneledge to separately compensate its sales associates for such rest periods. We conclude it does.”) (“Vaquero”).
[2] Id. citing (Armenta v. Osmose, Inc., 135 Cal. App. 4th 314, 324 (2005)).
[3] Bluford v. Safeway Stores, Inc., 216 Cal. App. 4th 864, 872 (2013).
[4] Id.
[5] Labor Code § 226.7(b); Cal. Code Regs. tit. 8, § 11070(12)(A) (“Industrial Wage Commission Order No. 7”) (“Authorized rest period time shall be counted as hours worked for which there shall be no deduction from wages.”)
[6] Vaquero at *9.
[7] Id. at *10.
[8] Id. at *9.
[9] Id. at *11.
[10] Id.





Tuesday, February 21, 2017

A Victory for Workers in Trump’s Puzder Defeat

America’s workers won when Donald Trump's first choice for Secretary of Labor Andrew Puzder recently withdrew his nomination, after it appeared unlikely that Puzder could get even 50 votes in the Republican-controlled Senate. Puzder, the CEO of Carl's, Jr. and Hardee's fast food restaurants, had the kind of baggage that would have sunk any nominee in a previous administration: his ex-wife had stated on Oprah that Puzder abused her,[1] Puzder employed an undocumented housekeeper and failed to pay taxes until after his nomination, and Puzder had long defended his restaurant chains’ hyper-sexualized ads featuring swimsuit models drooling over burgers.

More to the point, though, Carl's, Jr. and Hardee's restaurants have a long record of wage violations and workplace sexual harassment, and Puzder is a committed opponent of a federal minimum wage increase from the current, unlivable rate of $7.25 per hour. Puzder's support for moderate immigration reform -- at odds with the Trump Administration -- seemed informed more by a desire to increase the supply of cheaper, exploitable labor rather than any humanitarian aims. In short, putting Puzder in charge of the Department of Labor would have been an affront to America’s working families, more like a charter for a new Department against Labor.

Puzder’s withdrawal is also an encouraging development because it shows that at least some of the old rules still apply to Trump, and, further, shows some cracks forming in Senate Republicans’ support for the Administration and its nominees, regardless of their qualifications (or lack thereof). Reportedly, Senators Collins (Maine) and Murkowski (Alaska) expressed serious reservations after viewing the tape of Puzder’s ex-wife on Oprah. Several other Republican Senators were apparently more concerned about the undocumented housekeeper than Puzder’s alleged spousal abuse. Regardless, the signals from certain Senate Republicans (and a united Democratic party) as to Puzder’s disqualifying biography evoke a return to previous norms concerning suitability for high public office.

Trump announced his replacement nominee Alexander Acosta the very next day at the start of a 77-minute press conference that subsequently devolved into the President reacting defensively and returning to his standard line, when confronted with his failings, of berating the reporters who dared to question him.

Acosta is the current dean of Florida International University Law School, served in the Civil Rights Division at the Department of Justice during the George W. Bush Administration, and served on the National Labor Relations Board. If confirmed, he would be the only Hispanic-American in Trump’s cabinet.

Acosta has considerable government experience, having been confirmed by the U.S. Senate three times, and is clearly more qualified to run his assigned agency as compared to many of Trump’s “tremendous” nominees (see Betsy DeVos, Ben Carson, Rick Perry). Acosta has testified in the Senate against the anti-Muslim discrimination, which seems to be a unifying theme among many of Trump’s supporters. 

Acosta’s tenure in the DOJ’s Civil Rights Division during the Bush Administration is cause for concern, given the rampant politicization of personnel decisions during his tenure. Acosta also has no record protecting workers’ rights, though Trump had pretended during the campaign that as President he would be a working-class champion. Still, Acosta is the kind of nominee one could expect to see in any Republican administration, rather than being just another of Trump's rich, white friends who is patently unqualified for high government service.

The collapse of Puzder’s nomination, shortly following the resignation of National Security Advisor Michael Flynn, is another major setback for the chaotic Trump Administration, and another victory for our resistance. The replacement nomination of Acosta, a fairly conventional Republican pick who will likely be easily confirmed, shows how much political capital Trump has already lost due to the proliferation of scandal, incompetence, and mismanagement during Trump’s first month in office.





[1] Puzder denies the abuse allegations, and his ex-wife has since recanted them.

Friday, February 10, 2017

Ninth Circuit Protects the United States Against Trump’s Unconstitutional, Racist “Muslim Ban” Power Grab


Yesterday the Ninth Circuit protected the constitution that is the basis for our country’s democracy against an administration that seems to scoff at all constitutional limitations on its power. The Court rejected the administration's appeal of a temporary restraining order (TRO) blocking Trump’s “Muslim Ban” Executive Order (now restyled as a “travel ban” on residents from certain countries, which all just happen to be majority-Muslim). The concise but eloquently written opinion is here

Most importantly, the Court thoroughly debunked the administration’s astonishing assertion that the President has “unreviewable authority” when it comes to immigration policy. (Slip Op. at 13). “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the Court held. The Court cited the Supreme Court’s holding in Boumediene v. Bush, 553 U.S. 723, 765 (2008), that the “political branches” lack “the power to switch the Constitution on or off at will.”

As the Ninth Circuit explained: “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.” Slip Op. at 14. Both Chadha and Zadvydas v. Davis, 533 U.S. 678, 695 (2001) made clear that the “political branches” (congress and the executive) have powers over immigration but that these are restricted by important constitutional limitations – among others, those raised with the Muslim Ban, including Due Process, the Establishment Clause, and the Equal Protection Clause.

As the Ninth Circuit held, this is “no less true when the challenged immigration action implicates national security concerns.” Slip. Op. at 16, citing, inter alia, Ex Parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”). The Court wrote that the Government’s “authority and expertise in [such] matters do not automatically trump [pun intended?] the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. Slip Op. at 17, citing, inter alia, Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).

Ultimately, the Court rightly held that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Slip Op. at 18.

Adjudicating the Trump administration’s effort to overturn the District Court in Seattle’s TRO against the Muslim Ban, the Ninth Circuit focused on whether Trump is likely to succeed in overcoming Due Process and other challenges to the Ban, finding that Trump’s Executive Order is likely to be an unconstitutional loser. Slip Op. at 19. The administration asserted – again, showing utter disregard for the foundational document of our republic – that those affected by the Ban have no Due Process rights (i.e., notice and a hearing prior to restricting an individual’s ability to travel). Slip Op. at 19-20. On the contrary, though, the Ninth Circuit held that procedural protections of the Fifth Amendment’s Due Process Clause “are not limited to citizens” but apply to all “persons” within the United States, “including aliens” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Slip Op. at 20, citing Zadvydas, 533 U.S. at 693.

The administration disingenuously pretended that the TRO was moot because, several days after Trump issued the Muslim Ban Executive Order, he had to backtrack with his White House counsel (McGahn) and issue “Authoritative Guidance” saying it was not meant to apply to lawful permanent residents. The Ninth Circuit did not buy it, stating, “[W]e cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” Slip Op. at 21. Aside from the fact that White House counsel has no authority to contravene, interpret, or change an Executive Oder, “in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” Slip Op. at 21. In other words – even if the Court had the ability to believe the administration saying it would implement the Ban in some less offensive manner, why would anyone believe anything this administration says?

The administration’s attorneys did not do themselves any favors with their hollow arguments to the Ninth Circuit. For example, the administration sought to argue that the states had no standing to challenge the Muslim Ban, when, of course, the states are impacted in innumerable ways by the Ban, e.g., that the Ban directly impacted numerous public universities' students’ ability to pursue studies and research, and harmed their families as well. Slip Op. at 12. As another example, the administration argued that Kleindienst v. Mandel, 408 U.S. 753 (1972) precluded the Court from reviewing the President on an immigration-related issue by misquoting the opinion, which related only to denial of an individual visa, rather than a nationwide immigration policy. Slip Op. at 15

Most significantly, as to the administration’s flimsy arguments, the Ninth Circuit found:

-that “the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.” Slip Op. at 22-23.

- that the administration “submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years….The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Slip Op. at 26. And

- in providing no evidence to support its Muslim Ban, the administration asserted that “’[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.’ But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that.” Slip Op. at 27 n. 8.


The Court rested on the likely violation of Due Process so did not need to decide on the likely outcome with respect to the Muslim Ban’s unlawful preference for some religions over others or violations of Muslims’ constitutional rights. Slip Op. at 26. However, significantly, the Ninth Circuit did note “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence [the plaintiff states] claim suggests that the Executive Order was intended to be that ban,” and held that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Slip Op. at 25. In other words, when the challenged Ban is fully and finally considered, the administration will not be given a free pass on its new spin on the Ban (that it is not a “Muslim Ban”). Also see Saturday Night Live’s spoof on the administration running away from the “Muslim Ban” here

Despite its understandable decision not to confront yet the obvious religious discrimination perpetrated by Trump’s Muslim Ban, the Ninth Circuit did not ignore the human impact of the unlawful Executive Order. As the Court explained, “When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms.” Slip Op. at 28.


Ultimately, the Ninth Circuit’s decision has preserved our integrity as a nation and stands as a bulwark in defense of the constitution. Because of the Ninth Circuit’s decision, we can look ourselves in the mirror as Americans and not feel like a nation of bigots and hypocrites. Let us pray that more courts have the courage to follow the Ninth Circuit’s lead in the days, months, and years ahead, facing down this administration's march toward tyranny.