Friday, December 30, 2011

Workplace Safety Violations Result in Serious Consequences for Employers

The tragic case of Margarita Mojica, a 26-year-old printing plant worker killed at work in 2008, should stand as a sobering reminder to employers that workplace safety should be given the highest priority. Though protecting employees' lives should be incentive enough, employers like Ms. Mojica's may be criminally liable under the California Labor Code as well as criminal statutes.

In Ms. Mojica's case, the owner and manager of the San Francisco-based Digital Pre-Press International now face criminal charges for her death that was caused by a power press machine that lacked proper mechanical and handling safeguards. Ms. Mojica's case is but one of the approximately 6,000 workplace deaths that happen annually in the United States.

In a preliminary hearing, Judge Newton Lam found that a jury could find the employers committed criminal negligence in Ms. Mojica's untimely death. The defendants could each face up to four years and eight months of incarceration, plus fines of up to $250,000. The corporation faces up to $1.5 million in fines.

The California Labor Code contains numerous sections that impose criminal liability for employer violations. Although employers may not be frequently prosecuted for violations of the Labor Code, this case should remind employers that these criminal violations can be extremely serious.

If you believe you are working in an unsafe workplace due to faulty equipment, exposure to chemicals, or other inadequate safety measures, call Bryan Schwartz Law for a free consultation today: 510-444-9300.

Sunday, November 13, 2011

Bryan Schwartz Law Goes to Trial on Behalf of Whistleblower Against Government Corruption

Bryan Schwartz Law is in the midst of a month-long jury trial on behalf of our client, whistleblower Denise Winters, against her employer, the County of Solano - an exurban/rural County located between the San Francisco Bay Area and Sacramento.

The following lead story by Jess Sullivan was published today in the Daily Republic newspaper, in Solano County.

Trial under way for whistle-blower employee suing county

FAIRFIELD — A jury trial got under way this week for a Solano County employee who sued the county claiming she is the victim of retaliation and harassment for blowing the whistle on her boss’ massive amount of questionable paid overtime.

Denise Winters was an office assistant who was responsible for time sheets for her small group of coworkers including her supervisor within the county’s Department of Information Technology.

Winters was troubled that her supervisor, Sherrie Filbert, was racking up lots and lots of overtime during the 2007 and 2008 fiscal year.

Filbert had more than 1,100 hours of overtime and worked almost exclusively at her home on evenings and weekends. Filbert, a county employee of nearly 30 years, was racking up 20, 30 and sometimes 40 hours of overtime weekly, according to court records.

The overtime cost taxpayers more than $41,000.

Winters reported the overtime to the County Auditor Controller’s Office in 2008. Simona Padilla-Scholtens, the auditor-controller, looked at overtime and quickly turned the matter over to the District Attorney’s Office because of the possibility that criminal fraud had been committed. No charges were ever filed after the investigation.

Filbert was put on paid administrative leave for six months while county staff tried to figure out what she had done. Ultimately, Filbert was given a two-week suspension for dishonesty. Then she went back to her old job, which included supervising Winters.

Winters claims she then began to suffer harassment and retaliation in the workplace. Within a few months, Winters’ name was put on a layoff list and in spite of her seniority, she was laid off. She was the only person in her office who was laid off. But she landed another job with the county, with less pay, working in the First 5 program.

Winters sued the county in 2010.

During the first week of testimony, jurors learned that Filbert’s boss, Russ Hansen, and his boss, Ira Rosenthal, had signed off on the overtime week after week until Winters reported the dubious overtime to the Auditor Controller’s Office.

Rosenthal said in an email that the overtime had been appropriate to which another county department head responded saying “The Easter Bunny is real, too.”

Padilla-Scholtens testified that Hansen and Rosenthal had not been paying attention to the overtime Filbert had been running up. Hansen and Rosenthal also said the overtime was not approved in advance and that the overtime was mostly for a project that had no defined scope and with no defined time frame.

That same year the Auditor Controller’s Office checked on all the overtime being paid to more than 1,400 county employees. The bulk of that overtime went to law enforcement and jail guards, making Filbert stand out. Filbert had the second-highest amount of overtime among all county employees. Documents showing which county employee racked up even more overtime have been redacted.

Filbert’s overtime was for a project she took on at her own initiative. Filbert decided to try to reconcile and untangle very old accounts of receivable invoices for equipment managed by the technology department, much of it used by other county departments.

Filbert’s time sheets reflect that she worked every single day for three months, frequently from 7 a.m. to 11 p.m. Most weekends she worked 12 hours on both Saturday and Sunday. She did the work at home without a county computer and without a link to the county’s computer network, according to Winters’ attorney.

Eventually the Auditor Controller’s Office determined that the project Filbert undertook could have been done in 40 to 100 hours, not in the more than 1,100 hours. They took over the project and concluded it shortly after Filbert was put on administrative leave.

The attorney representing the county, Carolee Kilduff, said Filbert had taken on the enriching project for partly personal reasons. Kilduff said the that Filbert found the project was “fun.”

“It was her recreation,” Kilduff told jurors, likening the project to doing a jigsaw puzzle.

Kilduff concedes the oversight of Filbert by Hansen and Rosenthal was “lax” and that there “should have been better communication” about Filbert’s project with her bosses.

Kilduff told jurors that Rosenthal’s decision to lay off Winters had nothing to do her reporting Filbert’s overtime.

The trial is scheduled to resume Monday.

Monday, October 24, 2011

Are You Accused of Having “Unclean Hands?”

The “unclean hands” defense and its evil twin sister, the “after-acquired evidence” doctrine, are used by many employers facing a lawsuit as an excuse to dredge up anything they can find on the employee suing them. Before filing a lawsuit against your employer or former employer, you need to anticipate that they will do this, and be prepared. If you have too many skeletons in your own closet, you may want to think twice about bringing a suit in the first place. This does not mean, however, that employers’ attempts to soil the employee suing them always succeed – in fact, there are many ways that these attempts fail, as a matter of law.

Basically, the “unclean hands” defense is based on an equitable principle that a defendant should not have to pay someone accusing the defendant of wrongdoing when the plaintiff himself or herself is just as guilty of the bad practice that is the subject of the suit. The “after-acquired evidence” doctrine gained strength after the United State Supreme Court’s decision in McKennon v. Nashville Banner Publishing Co. (1995) 513 U.S. 352, which has been applied to hold that for someone suing based on violation of an important statute, like the anti-discrimination laws, he or she cannot have the entire suit eliminated based upon “unclean hands” – because of the public policy promoted by the statute itself. In other words, a discriminator should not get off the hook just because the discrimination victim had some problems, too – because our society has determined that discrimination is wrong. However, if the employer or ex-employer finds viable “after-acquired evidence,” the relief that the discrimination victim himself or herself might receive can be limited in some cases – i.e., if the employer can show that the employee would have been terminated anyhow for something the employer has learned after the suit was filed (a common example is proven fraud in your employment application), then the employee may not have a right to get his/her job back, or get back pay after the date on which the after-acquired evidence was discovered.

Here are some arguments you should raise if you are confronted with the “unclean hands” defense or “after-acquired evidence" doctrine:

In California, under the Fair Employment and Housing Act (FEHA) and whistleblower protection laws in the Labor Code, the unclean hands doctrine is inapplicable, when the defense purports to relate to acts occurring in the course of the employment relationship. See Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 848-851 (FEHA case in which neither the after-acquired-evidence rule nor the unclean hands doctrine was applicable to claimed sexual harassment damages, notwithstanding her misconduct in misrepresenting her citizenship status). In general, “equitable principles may not be applied in opposition to statutory enactments or to defeat public policy established by the Legislature.” Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 171 (citing 13 Witkin, Summary of Cal. Law (10th ed. 2005) Equity, § 3, p. 285; McKennon, 513 U.S. at 360–362.

As the United States Supreme Court noted in McKennon, “We have rejected the unclean hands defense ‘where a private suit serves important public purposes’” like the elimination of workplace discrimination. McKennon, 513 U.S. at 360-361. See also Mortgages, Inc. v. U.S. D. Ct. For D. of Nev. (9th Cir. 1991) 934 F.2d 209, 213 (district court erred when it denied a motion to dismiss the counterclaims based on bad faith by False Claims Act (FCA) relators, reasoning that “[t]he FCA did not intend to ameliorate the liability of wrongdoers by providing defendants with a remedy against a qui tam plaintiff with ‘unclean hands.’”);  Ramirez v. Greenpoint Mortg. Funding, Inc., 268 F.R.D. 627, 638 (N.D. Cal. 2010) (Henderson, J.) (rejecting unclean hands defense in discrimination case based on public policy favoring broad equitable relief).

California law concerning public policy statutes is consistent with the federal precedents: “Where an employer has fired a worker in violation of a statutory ban on discrimination in the workplace, the purpose and effect of the antidiscrimination statutes are unacceptably undermined by a principle that would allow a fact that played no part in the firing decision to bar any recovery.” Camp v. Jeffer, Mangels, Butler & Marmaro (1995) 35 Cal.App.4th 620, 633. “When a plaintiff alleges wrongful termination in violation of public policy, that cause of action, like one based on discrimination, serves sufficiently important public purposes to outweigh a claim of unclean hands.” Id. at 635-636; General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1181 (“[T]he doctrinal foundation of the public policy tort claim is not so much the plaintiff's continued interest in employment as the preservation of the public interest.”); De Burgh v. De Burgh, 39 Cal. 2d 858 (1952) (noting that “equity does not deny relief on the ground of plaintiff’s unclean hands when to do so would be harmful to the public interest”).

The only exception to the prohibition on an unclean hands defense to a public policy-driven statutory claim is where an employee's subsequently discovered wrongdoing would have prevented employment by the defendant from the outset. See, e.g., Murillo, 65 Cal.App.4th at 845 (plaintiff misrepresented herself as a legal resident alien, and her misrepresentations about her immigration status “went to the heart of the employment relationship,” and so precluded reinstatement remedy); Camp, 35 Cal.App.4th at 636, 638-639 (plaintiffs were convicted felons; defendant was precluded by law from employing convicted felons). In Camp, misrepresentations by the employees jeopardized the defendant law firm’s contracts with a government agency and potentially subjected the firm to accusations that it had made false statements to the government. Id. at 636-637. Camp suggested that unclean hands defenses are inapplicable where the supposed violations by the plaintiff relate to “internal, self-imposed requirements for the job” or its “voluntarily adopted policy.” Id. See also Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal.App.4th 614, 618-619 (reversing a summary judgment for employer on “unclean hands” where there was resume fraud by an employment discrimination plaintiff, finding that automatic forfeiture of claims was “too harsh a penalty” in many cases of misconduct – holding, “Where an employer has fired a worker in violation of a statutory ban on discrimination in the workplace, the purpose and effect of the antidiscrimination statutes are unacceptably undermined by a principle that would allow a fact that played no part in the firing decision to bar any recovery.”).

In sum, public policy underlying FEHA, Cal. Lab. §1102.5, and other important statutory protections, may prevent application of the unclean hands defense in your case, unless the evidence the employer possesses meets the tough “would have prevented employment” or “heart of the employment relationship” standard.

It is also important to argue that misconduct triggering the unclean hands doctrine must relate directly to the transaction at issue. See Camp, 35 Cal.App.4th at 638-639; Farahani v. San Diego Community College Dist. (2009) 175 Cal.App.4th 1486, 1495 (defense “closes the doors of a court of equity to one tainted with inequitableness or bad faith relative to the matter in which he seeks relief”) (emph. added). See also Lane v. Micro-Focus (U.S.), Inc. (W.D.Wash. 2010) 2010 WL 5018146, at *11 (dismissing unclean hands defense where Defendants did not show any “willful misconduct that has an immediate and necessary relation to Plaintiff’s requested relief”).

If the supposed misconduct does not relate to any actions you took for personal gain, then unclean hands may not be applicable. See CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 643 (finding that the allegedly “unclean” conduct of the plaintiffs differed from that of the defendant because the plaintiffs “had nothing to gain”). See, e.g., Dawe v. Corrections USA (E.D. Cal. 2010) 2010 WL 682321, at *26-27 (rejecting unclean hands defense where defendants did not meet initial burden of presenting evidence that plaintiffs’ actions were wrongful). Whistleblower statutes, in particular, tend to recognize that sometimes “wrongdoers might be rewarded” – but establish that such a cost is worthwhile to incentivize those knowledgeable about unlawful schemes to step forward. Recall, supra, Mortgages, 934 F.2d at 213 (discussing that the FCA was established to “set[] a rogue to catch a rogue”). If you were not complicit in the scheme you have helped expose, or if you feared retaliation in speaking out about it, then the unclean hands defense may not apply.

A defendant employer should also be precluded from advancing an “after-acquired evidence” defense unless the employer learns for the first time about employee wrongdoing that would have led to the discharge in any event. See Camp, 35 Cal.App.4th at 632. It is the employer’s burden to “establish that the wrongdoing was of such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” McKennon, 513 U.S. at 362-363. See also Brahmana v. Lembo, 2011 WL 1674993, at *9-11 (N.D.Cal. 2011) (rejecting equitable defense where employee failed to disclose criminal record or prior incarceration, even though employee handbook noted material omissions on employment application could result in termination); Cooper, 24 Cal.App.4th at 617-619 (facts of the case did not support a complete bar to relief, because the employee had a spotless and competent work record with the employer until he was terminated); Murillo, 65 Cal.App.4th at 845-84 (after-acquired-evidence rule would not have supported summary adjudication of wrongful termination claims, because triable issue existed as to whether employer would have terminated the employee had it known that she was an undocumented alien). Like in Murillo, id., where there was evidence that the employer had hired other undocumented aliens despite knowledge of their immigration status and fraudulent documents, your employer  cannot rely upon “after-acquired evidence” where it has acknowledged that it does not terminate other employees for such conduct as is alleged against you.

Perhaps most importantly, if you can show the employer knew of your supposed misconduct while you were employed, and did not terminate you, the “after-acquired evidence” defense is inapplicable. Whereas in Murillo, there was a triable after-acquired evidence issue, because nothing in the record indicated that the employer knew previously that the employee in question was ineligible to work (id., 65 Cal.App.4th at 845-84), in your case, the opposite may be true – the employer may not be in a position to claim recent discovery of any misconduct.

Finally, you may argue that the court should rule upon the defenses in equity – they are only a matter for the jury if they are “so intertwined with legal claims that [they] cannot be separately tried to the judge.” Unilogic, Inc. v. Burroughs, Corp. (1992) 10 Cal.App.4th 612, 623.

If you have questions about the applicability of the “unclean hands” defense or “after-acquired evidence” doctrine in your case, please contact Bryan Schwartz Law.

*Note: nothing in this article, intended to be of general interest, is intended to create an attorney-client relationship or constitute legal advice to you. Each case is different, and Bryan Schwartz Law does not represent you unless you have a signed representation agreement with the firm.

Wednesday, September 28, 2011

What is an "adverse action?"

If you are an employment discrimination victim or a whistleblower who suffered retaliation at the hands of your employer, to have an opportunity to recover you must show you suffered an “adverse action.” Some things that feel adverse to you are not necessarily “adverse actions” that will give rise to a case. On the other hand, an employer is wrong if it tells you that only a termination or a demotion is an “adverse action.”

If you were terminated, laid off, demoted, or in some other way lost pay as a result of the employer’s discriminatory or retaliatory action against you, then you suffered an adverse action. See, e.g., Guz v. Bechtel Nat'l Inc., 24 Cal.AppAth 317, 355 (“termination, demotion, or denial of an available job " is adverse action); Thomas v. Department of Corrections (2000) 77 Cal.App.4th 507, 511 (termination of employment and demotion are adverse actions); McRae v. Dep't of Corrections and Rehab. (2006) 142 Cal.AppAth 377, 393 (action that results in a reduction in pay satisfies requirement); Little v. Windermere Relocation, Inc. (9th Cir. 2002) 301 F.3d 958, 970 (pay cut is adverse employment action).

This is true even if the employer subsequently took some action to mitigate its damages. For example, in a case on which Bryan Schwartz Law recently defeated an employer’s summary judgment motion, the employer argued that, because our client was hired into another position after she was initially laid off, she did not suffer an adverse action. The employer’s argument failed. If you suffered a materially adverse consequence – even if it is relatively small, based on some type of mitigation – this should be sufficient to constitute an adverse action.

Likewise, if you are placed in a position with less advancement potential, fewer promotion opportunities, a less distinguished title, or suffered some other material loss of benefits or significantly diminished material responsibilities, you may have suffered an adverse action. See, e.g., Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 2416 (2006)(reassignment to less desirable job responsibilities may be materially adverse action); Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1389-1390 (lateral transfer without change in wages, benefits and duties may be an adverse employment action where the transfer is in reality a demotion, or there are significantly diminished material responsibilities); Akers v. County of San Diego (2002) 95 Cal. App. 4th 1441, 1456-1457 (diminished promotion opportunities is adverse action).

A hostile working environment can constitute an “adverse action.” It is also true, though, that “social slights” or “mere reduction in pleasantries” are not enough, usually, to constitute an adverse action, standing alone – though they may be important background evidence of discriminatory or retaliatory animus. On the other hand, both California and Federal courts will look at the totality of circumstances to determine whether the work environment or your job has been sufficiently for an adverse action to be established. See Yanowitz v. L 'Oreal USA, Inc.
(2005) 36 Ca1.4th 1028, 1055 ("no requirement that an employer's retaliatory acts constitute one swift blow, rather than a series of subtle, yet damaging, injuries”).

The Federal standard to prove that a retaliatory adverse action occurred is easier to meet than the California standard, as articulated in Yanowitz. In Federal courts, you may be able to prove an adverse action if you can show that the employer took any action against you which might tend to discourage a reasonable person from engaging in protected activity. See Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000). The Ray decision suggests that, if your former employer where you previously complained of discrimination or blew the whistle retaliates by giving a negative job reference to a different potential employer (even if you ultimately get the job you were seeking), this can be an adverse action, because it might tend to discourage people from speaking out against discrimination or other unlawful activities. Id. at 1242.

If you believe you may have been subjected to an adverse employment action based on discrimination or whistleblower retaliation, and want to speak to a lawyer, contact today.

Wednesday, August 31, 2011

Good New Case Law on Using Testimony from Other Victims in Harassment Cases:

Fifth District Court of Appeal Gets it Right in Pantoja v. Anton, 198 Cal.App.4th 87 (2011)

On August 9, 2011, the Fifth District released a strong published opinion on “me too” evidence, and other evidentiary issues in sexual harassment and race discrimination cases. Pantoja v. Anton, 198 Cal.App.4th 87 (2011). This opinion injects a much-needed dose of common sense into the law around proving that harassment occurred—something that is often a “he said-she said” situation.

The plaintiff, Lorraine Pantoja sued her former employer, Thomas Anton, under California’s Fair Employment and Housing Act for sex and race discrimination and harassment, among other claims, while she was employed as a receptionist/secretary in Mr. Anton’s law office. Id. at *12. Ms. Pantoja alleged that Mr. Anton engaged in the following conduct, among other acts: slapping Ms. Pantjo’s buttocks, touching her leg while offering $200, referring to his employees as “my Mexicans,” and ultimately calling Ms. Pantoja a “stupid bitch” and then firing her. 198 Cal.App.4th 87, at *2.

At trial, the trial court in Kern County refused to admit evidence from Ms. Pantoja’s female coworkers of Anton’s conduct towards them that was not necessarily witnessed by Ms. Pantoja. Id. at *4. Ms. Pantoja sought to admit this “me too” evidence to show that Mr. Anton engaged in a pattern of harassment and race discrimination against his female, often Latina employees. Id. at *6. This evidence included extensive testimony from other employees that Mr. Anton inappropriately touched them, said things like “monkeys can do your job better than you,” telling a female employee on a ladder “I could see right through that skirt,” and “I have three Mexicans working for me. I’ve never had that many working for me before. Usually you hire Mexicans to do your maid work.” Id. at *8-9. However the Court reasoned that such “me too” evidence ran afoul of California’s evidence rules against “character evidence” and prevented the jury from hearing this testimony.[1]

However, the trial court allowed Mr. Anton to admit evidence supporting his general course of conduct. For example, the court allowed Mr. Anton’s lawyers to lead him to testimony that any physical contact with his employees was merely “avuncular” or “uncle like.” Id. at *8. This testimony was not limited to the time that Ms. Pantoja was employed. Id.

The Court of Appeal found that the trial court committed error by allowing what was essentially a double standard in favor of Mr. Anton:
We conclude that, in the event this case is retried, both parties need to be given the opportunity to present their evidence in an even-handed manner. Only then will the jury be able to fulfill its responsibility of determining where the truth actually lies based on a balanced and accurate review of admissible evidence.
Id. at *25. Importantly, the Court also found that the trial court erred in that “[its] decision that all evidence supporting a sexual harassment plaintiff's case must be limited to evidence of specific events that took place in the plaintiff's presence[. This ruling] had the unfortunate result of skewing the evidence.” Id. at *23.

This decision is important for plaintiffs in harassment cases, since, absent such “me too” evidence from co-workers willing to tell the truth about harassment that they endured, harassing incidents are frequently merely “he said-she said” situations. Harassment often occurs one-on-one, without many other witnesses. Likewise, harassers are seldom foolish enough to commit their harassment in writing.

With this decision, the challenging task of proving that inappropriate touching occurred, or that inappropriate words were spoken, has been made a bit easier for harassment victims.

If you believe you have been harassed or discriminated against in your workplace, contact Bryan Schwartz Law today.

[1] See Cal. Evid. Code § 1101.

Friday, July 15, 2011

Bryan Schwartz Law Represents California Employment Lawyers Association to California Supreme Court

Amicus Brief Argues for Reversal of Kirby, et al. v. Immoos Fire Protection, Inc., Shifting Burden of Defendants' Attorneys Fees to Plaintiffs in Unsuccessful Meal-Rest Period Premium Litigation

Click here to read the brief Bryan Schwartz Law submitted to the California Supreme Court on July 11, 2011, as amicus curiae on behalf of the California Employment Lawyers Association, an organization of approximately 1,000 attorneys representing workers throughout California in wage and hour, discrimination, whistleblower, and other types of cases.

The brief argues that the decision of the Court of Appeal in Kirby, et al. v. Immoos Fire Protection, Inc., 113 Cal.Rptr. 370 (2010), review granted November 17, 2010 (Case Number S185827) ("Kirby"), would destroy workers' ability to sue to recover unpaid meal and rest period premiums, when employers steal time from them during their breaks.

Kirby disregarded the extensive Supreme Court jurisprudence requiring construction of the California Labor Code in the most protective manner to employees that is possible, based on a reasonable interpretation of the language of the statutes. In reversing, the Supreme Court should hold that Kirby erred in reading California Labor Code section 218.5, which provides for two-way fee-shifting in cases other than those encompassed in California Labor Code section 1194, to apply to meal and rest period premium cases under California Labor Code sections 226.7 and 512 and the Wage Orders of the Industrial Welfare Commission.

Specifically, California Labor Code section 1194 allows only one-way fee-shifting - i.e., that an employer found to violate the law must pay the attorneys' fees of the person who brought the claim, but the opposite is not true. California Labor Code section 1194 includes claims for overtime and for "the legal minimum wage." In Murphy v. Kenneth Cole (2007) 40 Cal.4th 1094, 1109-1110, the California Supreme Court found that the meal and rest period premiums required under Section 226.7, etc.(an additional hour of pay at an employee's regular rate) are wages. Thus, they are the legal minimum wage that an employer must pay whenever an employee misses breaks, and Section 1194 is applicable.

The decision also erred in reading section 218.5's preclusion of two-way attorneys' fees shifting in "any action" seeking compensation under section 1194 to be limited only to the cause of action alleging overtime and "legal minimum wage" claims, instead of the whole civil action. Since meal/rest claims are generally brought together with overtime and other minimum wage violation claims, it only makes sense for "any action" in section 218.5 to refer to the whole case. Otherwise, it is unclear what will happen when someone loses a case in which a worker says that he/she missed meal periods, and as a result, had unpaid overtime as well - i.e., worked through lunch periods, so actually worked 8.5 hours a day, instead of the maximum 8 regular hours, but never got paid overtime for the extra half hour.

Employees should not be forced to pay their employers' attorneys' fees every time their cases to enforce the law do not succeed. Simply put - neither they, nor their lawyers, could afford the risk, and as such, the consequence of Kirby would be to kill litigation seeking to enforce the meal and rest period premium laws of California. With the government enforcement agencies seriously understaffed, private enforcement is the only way to give employees a fighting chance of enforcing their rights to either receive meal and rest periods in California workplaces, or be paid premiums by their employers.

Wednesday, June 29, 2011

When Your Employer Must Pay for Your Travel Time

In general, an employer does not need to compensate you for time spent traveling that is a normal commute from home to work and back. However, there are a couple of key exceptions. Under California law, one exception is when an employer requires you to take company-provided transportation and you are subject to the control of the employer. See Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578 (2000).

In the Morillion case, the employer, Royal Packing Co., required its employee farm workers to meet for work each day at parking lots or assembly areas. Id. at 579. From these departure points, Royal transported employees to their job sites in busses which Royal provided and for which Royal paid, and returned them to the departure points at the end of the each day. Id. The employees were prohibited from using their own transportation to get to the job sites. Id. The California Supreme Court found the level of Royal’s control over its employees meant they should have been on the clock while on the busses, since the employees could not commute to the job sites on their own, decide which route to take, or which mode of transportation to use. Id. at 586-87. The Morillion decision means that an employer must compensate employees for their compulsory travel time, including time spent waiting for your employer’s transportation to take you to work. See id. at 587.

It is true that an employer may provide and require you to take a company vehicle without having to compensate you for travel time. However, if the employer subjects you to restrictions, such as not permitting personal stops, forbidding you from picking up passengers, and forbidding the use of a cell phone except to answer calls from company headquarters, the employer may be liable for that travel time. See Rutti v. Lojack Corp., Inc., 596 F.3d 1046, 1061-62 (9th Cir. 2010).

In general, if you take advantage of optional company-provided transportation, your employer does not need to pay you for travel time. See Overton v. Walt Disney Co., 136 Cal. App. 4th 263, 271 (Cal. Ct. App. 2006). For example, Disney did not have to compensate employees for the time they spent on a free, optional shuttle bus provided by Disney from the employee parking lot to the entrance of Disneyland. Id. The Disneyland employees could take alternative forms of transportation, such as taking public transportation, a vanpool, or getting dropped off, so they were not under Disney’s control. Id.

You might also be entitled to compensation for travel time under the federal Fair Labor Standards Act if you perform any work that is deemed to be an “integral and indispensable” part of your main work activities. D A & S Oil Well Servicing, Inc. v. Mitchell, 262 F.2d 552, 555 (10th Cir. 1958). Such activities include picking up and transporting necessary equipment or receiving work instructions at a meeting point prior to traveling to the work site. See, e.g., Smith v. Aztec Well Servicing Co., 462 F.3d 1274, 1289 (10th Cir. 2006). Furthermore, you should almost always get paid for travel time from job site to job site in a single day, assuming that such travel is not a part of your normal commute from home to the normal job site, or between home and the first or last job site. See Wirtz v. Sherman Enterprises, Inc., 229 F. Supp. 746, 753 (D. Md. 1964). For example, employees who install cable, make repairs to telephone lines, inspect houses, or wait to receive the next limousine driving assignment are all entitled to be paid for the time they spend getting to one work site to another. See Steelman v. Telco Tel. Co., 2001 WL 21361, at *1, 3 (D. Or. Jan. 5, 2001); Ghazaryan v. Diva Limousine, Ltd., 169 Cal. App. 4th 1524, 1527-28 (Cal. Ct. App. 2008).

If you believe you are not receiving proper compensation for travel time between job sites, or for travel time where your employer requires you to meet at mandatory location prior to traveling to your job site, or if your employer restricts what you do when you travel to or from work, or imposes work requirements on you during this travel time, please contact Bryan Schwartz Law.

Monday, June 6, 2011

For Government Contract Employees, Your Employer is Not Just Who Signs the Paycheck

You were interviewed and hired by a private firm, but sent to work at a government agency as a government contractor. You report your hours, receive healthcare benefits, and receive your paycheck from the firm, but your office is at the government agency. The growth and popularity of government contract workers at various local and federal government agencies may lead to confusion about who is technically the “employer.” When government contract employees have an unlawful termination claim, whether due to discrimination or harassment, whistleblower, retaliation, or overtime and other wage claims, both the private firm and the government agency could be on the hook as joint employers. Thus, a government contractor should pursue his or her claims against both entities if either the private sector employer or government agency mistreated the employee and violated state or federal law.

Courts determine whether a contract worker is deemed a government employee for purposes of an employment discrimination lawsuit by looking at whether the employer “has retained for itself sufficient control of the terms and conditions of employment of the employees who are employed by the other employer.” Lopez v. Johnson, 333 F.3d 959, 963 (9th Cir. 2003) (citing Redd v. Summers, 232 F.3d 933 (D.C. Cir. 2000) (internal citations omitted)); Strolberg v. Akal Sec. Co., 2005 WL 5629026, at *6 (D. Idaho Jan. 19, 2005). The courts look at “the extent of the employer’s right to control the means and manner of the worker’s performance [as] a primary factor,” as well as other factors including whether the employer furnished the employee’s equipment and place of work, the length of time the employee worked, and whether the work was an integral part of the employer’s business. Lopez at 962-63 (citing Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir. 1980) and Mitchell v. Frank R. Howard Mem’l Hosp., 853 F.2d 762, 766 (9th Cir. 1988)).

In Strolberg v. Akal Sec. Co., the court found employees of Akal Security Co., a private security company, to also be government employees of the United States Marshal’s Service (“USMS”) for purposes of a claim under the Rehabilitation Act – even though the USMS had limited control over the terms and conditions of the employees’ work. Strolberg at *1. Akal Security was responsible for managing court security officers’ (“CSO”) work hours and assignments, payment of salaries, and scheduling of vacation, discipline, and performance of services. Id. at 7. Also, the USMS did not normally direct CSOs’ activities nor have intent to enter into an employment relationship. Id. at *8. Yet, the court found the USMS to be the CSOs’ joint employer. Id. Examples indicating that the USMS was a joint employer included the USMS providing training; furnishing radio, weapons, handcuffs, and identification; determining routes, schedules, and operating procedures for CSO patrols and stations; and providing the premises where the CSOs worked. Id. at *7-8. The USMS could not directly fire CSOs, but could evaluate CSOs and direct CSOs in the event of emergencies. Id. at *8. The Strolberg case shows that the employer need not control everything about the contract worker’s employment, but just some significant aspect of it.

Be cautioned: the government may well try to tell you that you are not its employee, and that you have no right to file claims against it. Do not believe it. You should make sure that you register a complaint with the proper government authorities very quickly after you suffer an adverse employment action, because the government tends to have very short deadlines for filing complaints. Often, if you do not file against the government quickly, you will lose the right to hold the government accountable.

In one example, Bryan Schwartz Law’s client Garnett Gebhardt sought to hold both the U.S. Department of Energy (“DOE”) and Northrop Grumman liable as joint employers for her claims of harassment and discrimination. Gebhardt v. Chu, 2010 WL 5211459, at *1 (N.D. Cal. Dec. 16, 2010). While contracting firm Northrop Grumman signed Ms. Gebhardt’s paychecks and provided employee benefits, Ms. Gebhardt worked in DOE facilities, used a DOE email address, and worked directly under a Senior Counterintelligence Officer and federal employee. Id. With limited exceptions, Equal Employment Opportunity Commission (“EEOC”) regulations require that federal employees (or federal contract employees) consult with the proper Equal Employment Opportunity (“EEO”) counselor at the agency within 45 days of the matter alleged to be discriminatory in order to file a civil suit. Id. at *6.

In the Gebhardt case, although (before hiring Bryan Schwartz Law) Ms. Gebhardt complained to DOE officials and attempted multiple times to contact a DOE Human Relations Specialist in order to properly file an EEO complaint, the DOE took the position that Ms. Gebhardt never properly filed an administrative complaint against it. Id. at *3-4. The DOE argued that the DOE Human Resources Specialist was not an “EEO” official that was logically connected with the EEO process. *9. The DOE also argued that if there was an EEO complaint filed by Ms. Gebhardt, she had directed it to Northrop Grumman and not the DOE. Id. at 10. However, Bryan Schwartz Law successfully convinced the court that it should reject the DOE’s arguments that Ms. Gebhardt’s complaints were untimely (under the legal principle of equitable tolling) because Ms. Gebhardt and her counsel were told by the DOE that her complaint was being handled, even though it was not. Id. at *13.

Though Bryan Schwartz Law ultimately succeeded in saving her claims against the DOE, the Gebhardt case shows how important it is to be quick and persistent in pursuing your employment claims with the appropriate channels at both your government agency and contracting firm. The agency or firm may mislead you into filing a complaint with one employer only, or with an individual or office not charged with handling EEO complaints.

If you are unsure who your “employer” is or where to file a complaint, you could very well have joint employers and should pursue action against both. In particular, if you are a government contractor and you have a discrimination, whistleblower, or wage and hour claim arising out of either your contracting firm or government agency, please contact Bryan Schwartz Law.

Monday, May 30, 2011

Civil Rights Lawyer and Employee Advocate Bryan Schwartz Speaks Out on NPR Against ATT Mobility v. Concepcion

On May 4, 2011, Bryan Schwartz ( advocated the interests of employees and consumers in an hour-long radio broadcast, on National Public Radio, of a debate between Mr. Schwartz and Baldwin Lee, who is an employers'-side attorney and head of the Employment group at Allen Matkins.

To find out how ATT Mobility v. Concepcion will affect you, in your daily life - whether you know it or not - listen to Mr. Schwartz's points by clicking on the link below:

May 4, 2011, National Public Radio, KALW San Francisco 91.7 FM.

Thursday, April 28, 2011

Disability Rights Organizations Voice Support for Class Action on Behalf of Disabled Foreign Service Applicants

A consortium of more than 100 national, disability-related organizations joined in support of the class action which was certified in September 2010, seeking to end the United States Department of State’s practice of discrimination against people with disabilities, records of disabilities, and perceived disabilities in the hiring process for Foreign Service Officers. At the request of the State Department, the class certification decision in Meyer v. Clinton (Department of State), a case brought by Bryan Schwartz Law, is currently under review by the United States Equal Employment Opportunity Commission (EEOC).

The Consortium for Citizens with Disabilities wrote to the EEOC, addressing the State Department’s so-called “worldwide availability” policy, which required that applicants prove they are able to work at more than 250 diplomatic posts worldwide, without reasonable accommodations of any kind or need for ongoing medical treatment, before being hired into the Foreign Service. Thus, for example, an applicant (like the Class Agent, Ms. Meyer) who the State Department admitted was able to work at more than 85% of posts without any accommodations, could not be hired, at all, into the Foreign Service, without undergoing a special “waiver” process to prove he or she had “extraordinary qualifications” not required of other, non-disabled applicants. Only a tiny fraction of disabled applicants receive Foreign Service jobs after this discriminatory “waiver” process.

Though numerous court and EEOC decisions have found the application of the “worldwide availability” requirement unlawful, it has never been addressed on a class-wide basis. The Consortium’s letter stated, “The time has come to stop handling these challenges to a discriminatory policy piecemeal – and to address head-on the whole ‘worldwide availability requirement’ as implemented.”

Bryan Schwartz, attorney for the Class Agent, stated, “This support of the organized, disability rights community is critical. This Consortium is a major stakeholder in the EEOC’s performance of its mission to eliminate workplace discrimination, and I hope the EEOC will take the Consortium’s well-reasoned amicus letter very seriously – as it should.”

For more information about Meyer v. Clinton, contact Bryan Schwartz.

The complete letter reads as follows:

April 27, 2011
Carlton M. Hadden, Director
Office of Federal Operations
U.S. Equal Employment Opportunity Commission
One NoMa Station
131 M Street, NE
Suite 5SW12G
Washington, DC 20507

Re: Amicus Letter in Support of Opposition to the Agency’s Appeal of Class Certification Decision in Meyer v. Clinton, OFO No. 07-2011-007; EEOC No. 570-2008-00018X

Dear Director Hadden:

The Rights Task Force, the Employment and Training Task Force and the International Task Force of the Consortium for Citizens with Disabilities (CCD) submit this amicus letter in support of the opposition to the agency’s appeal of the class certification decision in the above-referenced case. This case challenges the State Department’s practice, under its “worldwide availability” policy, of banning people with a variety of disabilities from Foreign Service officer positions.

The CCD is a coalition of more than 100 national disability-related organizations working together to advocate for national public policy that ensures full equality, self-determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society. The mission of the Rights Task Force of the CCD is to focus on civil rights and protections for people with disabilities, and for enforcement of rights provisions by federal agencies. The Employment and Training Task Force works on issues relevant to the employment of people with disabilities, particularly issues related to the programs and projects funded under the Rehabilitation Act of 1973, as amended. The International Task Force advocates for United States and international policies which promote the rights and inclusion of persons with disabilities worldwide. Accordingly, the undersigned task forces of the CCD have an especially strong interest in the issues presented by this case, including ensuring the exacting implementation of federal employment policy that maximizes the employment opportunities for Americans with disabilities.

We urge the Commission to uphold certification of the proposed class in this case. The State Department’s worldwide availability policy negatively affects hundreds of employees and job applicants, and needlessly deprives the country of the tremendous public service that could be provided by these outstanding job candidates. In urging this case go forward as a class action, we simply seek to advance the EEOC’s rallying cry that “[t]he Federal Government shall be a model employer of individuals with disability.” 29 CFR 1614.203(a).

Class complaint processing is appropriate because this case meets all of the criteria set forth by the Commission in 29 CFR 1614.204. In addition, this case focuses on a “broad pattern of workplace discrimination,” which is exactly the type of case that the Commission targeted when adopting its current regulations for class complaint processing. As the Commission confirmed in 1999: “[c]lass actions play a particularly vital role in the enforcement of the equal employment laws. They are an essential mechanism for attacking broad patterns of workplace discrimination and providing relief to victims of discriminatory policies or systematic practices.” 64 Fed. Reg. 37651 (1999).

The time has come to stop handling these challenges to a discriminatory policy piecemeal – and to address head-on the whole “worldwide availability requirement” as implemented.

Respectfully submitted,

CCD Rights Task Force Co-Chairs:

Mark Richert
American Foundation for the Blind

Curt Decker
National Disability Rights Network

CCD Employment and Training Task Force Co-Chairs:

Cheryl Bates-Harris
National Disability Rights Network

Alicia Epstein

Susan Goodman
Down Syndrome Congress

Charlie Harles
Inter-National Association of
Business, Industry & Rehabilitation

Susan Prokop
Paralyzed Veterans of America

Paul Seifert
Council of State Administrators of Vocational Rehabilitation

CCD International Task Force Co-Chairs:

David Hutt
National Disability Rights Network

Deb Ziegler
Council for Exceptional Children

cc: Kimberly A. Jackson, Agency Representative
Office of the Legal Advisor, Department of State

Bryan J. Schwartz
Bryan Schwartz Law
Attorneys for Class Agent and the Class

Joseph V. Kaplan
Passman & Kaplan, PC

Monday, April 25, 2011

State Department Disability Class Action - Announcement

Check out Bryan Schwartz Law's new website:


If you are a current or former employee of or applicant to the United States Department of State Foreign Service with a disability, a record of a past disability, or a condition perceived by the State Department as a disability:
Were you denied Class 1 medical clearance?

Have you been denied desirable or prestigious State Department posts because of your medical condition?

Have you been denied reasonable accommodations for your disability?

Have you been harmed by the so-called "worldwide availability" requirement?
If your answer to any of these questions is "Yes" you may have a discrimination claim to bring immediately against the State Department.

If the State Department’s Office of Medical Services (MED) denied your Class 1 clearance, affecting your employment with another Government agency, you may also have a claim.

Bryan Schwartz Law has certified a nationwide class of applicants to the Foreign Service who were denied Class 1 medical clearance based on their supposed lack of "worldwide availability," which is currently being reviewed by the United States Equal Employment Opportunity Commission. Click here to read this momentous decision:

You must file an EEO claim with the State Department within 45 days of any unfavorable action you believe is related to your disability, record of a disability, or perceived disability, by contacting the State Department’s Office of Civil Rights: or by email:

Contact Bryan Schwartz Law or co-counsel, Passman &  Kaplan, PC, today if you believe you might have a claim!

Bryan Schwartz
Bryan Schwartz Law
180 Grand Avenue, Suite 1550
Oakland, California 94612
Tel. (510) 444-9300
Fax (510) 444-9301

Joseph Kaplan
Passman & Kaplan, PC
1090 Vermont Avenue, Ste. 500
Washington, DC 20005
Tel. (202) 789-0100
Fax (202) 789-0101

Tuesday, April 5, 2011

Kasten v. Saint-Gobain - Is the United States Supreme Court Becoming Pro-Employee?

There is a lot of talk about the Supreme Court’s pro-business bent during the current Chief Justice’s tenure. For example, see “Justices Offer Receptive Ear to Business Interests,” The New York Times, December 18, 2010 ( A leading Supreme Court advocate for business interests, Carter G. Phillips, who represents the Chamber of Commerce and argues more Supreme Court cases than any active lawyer in private practice, is said to have boasted recently: “I know from personal experience that the chamber’s support carries significant weight with the justices….Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them….” (Republished in,-the-Chamber-of-Commerce,-and-a-Code-of-Conduct). The low point for those concerned with corporate excesses infecting the Supreme Court was the January 10, 2010, Citizens United v. Federal Elections Commission decision (, holding that election laws cannot restrict independent campaign expenditures by corporations, construing such as an improper restriction on free speech precluded by the First Amendment. The Citizens United case was essentially grounded in the notion that corporations are entitled to protection of their individual liberties, like human beings.

But, notwithstanding the early returns, so to speak, we should be careful not to judge the Roberts court too soon. People change…maybe. In any event, in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011) (, the Supreme Court got one right, when they very easily could have gotten it wrong, if the Court was indeed inherently skewed to corporations. While I would like to see the result as a product of brilliant advocacy by my former firm, Nichols Kaster (, who represented the Petitioner – which, no doubt, it was – I would like even more to see the result as evidence of fairness toward America’s workers that will manifest itself in important upcoming decisions. Time will tell.

In Kasten, the employee brought an anti-retaliation suit against his former employer, Saint-Gobain, under the Fair Labor Standards Act of 1938 (FLSA), which provides minimum wage, maximum hour, and overtime pay rules; and which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the FLSA, 29 U. S. C. §215(a)(3). (Saint-Gobain had violated the FLSA by placing timeclocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear.)

The employee said he was discharged because he orally complained to company officials about the timeclocks. The District Court and Seventh Circuit rejected the employee’s claims, concluding that the FLSA’s anti-retaliation provision did not cover oral complaints – i.e., that orally complaining is not “fil[ing] a complaint” which engenders the statute’s protection. The Supreme Court vacated the summary judgment against the employee, and remanded to the Seventh Circuit, with not only Justice Kennedy, but Justices Roberts and Alito in the majority, along with Justices Ginsburg, Sotomayor, and Breyer. (Kagan sat out.) Only Justices Scalia and Thomas voted to affirm the Seventh Circuit’s narrow – but not insane – construction of the FLSA, i.e., that the protection from retaliation against a worker who has “filed any complaint” only relates to written complaints.

The Supreme Court found that there was at least one dictionary definition which allowed the possibility that the term “file” a complaint encompassed an oral complaint, stating, “This possibility is significant because it means that dictionary meanings, even if considered alone, do not necessarily limit the scope of the statutory phrase to written complaints.” This was so, even though “[f]ilings may more often be made in writing.” In other words, the Supreme Court grabbed hold of any possibility that the statute could be construed in a way to benefit employees, and chose to construe it in this most protective manner.

Likewise, the Court acknowledged that to “file any complaint” was not language as broad as other language in statutes, which expressly encompassed oral complaints, but admitted a different possibility – “that Congress did not believe the different phraseology made a significant difference in this respect.” The Court concluded, “The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” Again, the Supreme Court gave the employee, Kasten – and all employees – the benefit of the doubt.

In law school, we learn that on summary judgment, the non-moving party is supposed to receive this sort of benefit of all presumptions, and that our system of justice favors the right of parties to be fully and fairly heard. In practice, however, employees’ advocates have wondered if the Supreme Court might be moving toward summary dispositions more often against our clients. In Kasten, though it was not a case about the summary judgment standard, the High Court also reinvigorated the idea of giving plaintiffs a chance to be heard.

Most importantly, the Court rested its holding on the underlying purpose of the FLSA, asking rhetorically, “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?” The Court suggested that “broad rather than narrow protection to the employee” was intended under the FLSA. While holding that employers need to be given “fair notice” of wage complaints to serve as a condition precedent for a retaliation complaint, the Court held that the standard can be met by oral complaints, as well as by written ones.

Predictably, Justices Scalia and Thomas provided a lengthy dissent giving employers the way out – going so far as to argue that “complaints” only cover an “official grievance filed with a court or an agency, not oral complaints.” Their interpretation ignores the purpose of the FLSA and the realities of the workplace – where most workers subject to wage violations are unsophisticated, and can suffer reprisal long before they make it to a court or government entity with their concerns.

But, the importance of Kasten is not that two justices on the farthest right margin of the Court did not side with employees – but rather, that all of the other justices did the right thing. In the coming months, the Court will decide important cases for employees – the AT&T Mobility v. Concepcion and the Wal-Mart v. Dukes matters, which will resolve, for all practical purposes, to what extent class actions are available to employees (and others) whose rights have been violated. Will employees have the opportunity to level the litigation playing field with employers possessing far superior resources, preventing employers from dividing and conquering, and limiting the windfall employers receive because so few employees have the resources and courage to step forward alone? Indeed, the Court heard oral argument in the Wal-Mart v. Dukes case last week, and Justice Scalia again was transparent in his disdain for the employees’ case. Let us hope that, once again, in deciding these cases, as in Kasten, Justices Scalia and presumably Thomas will be in the dissent, and the rest of the Supreme Court again will consider, first and foremost, how workers in America will be affected every day by the decisions they render.

Monday, February 28, 2011

Federal Government Applicants: Watch Out for the “Optional Form 306” (OF-306) Trap

To be hired into the Government, you will need to complete a lot of paperwork, including probably an “Optional Form 306” (OF-306) which asks you a host of background questions about whether you have any criminal history, etc. You should tell the truth on this form! If there is an error on this form, you could be fired during your probationary period.

In your probationary period, you are, however, entitled to notice in writing and an opportunity to respond before you can be fired for a pre-employment reason, like a false or erroneous answer on the OF-306. See 5 C.F.R. §315.805. HOWEVER, Government agencies are trying a clever new tactic to get around this important requirement which allows you to explain yourself – making you re-sign the OF-306 during Entry-on-Duty (“EOD”). By re-signing the document on your first day at work, the Government argues, it is no longer a pre-appointment issue, and therefore, you are not entitled to the notice/opportunity to respond provided by §315.805. Do not let an Agency get away with this strategy, which goes against decades of history reinforcing your right to be heard before being fired for something you did before you started working for the Government.

In the nearly 50 years since the implementation of the regulation requiring procedural safeguards in terminations of probationary employees for pre-employment reasons, never has any precedent allowed an Agency to avoid the requirements of 5 C.F.R. §315.805 simply because an employee attested to the veracity of his pre-employment submissions during Entry-On-Duty.

Though procedural safeguards for terminations of federal employees were not incorporated specifically into the original rule creating a Civil Service Commission (the Pendleton Act, 22 STAT. 403, ch. 27, (1883)), they were implemented nearly 100 years ago - in the Lloyd-LaFollette Act of 1912, 37 Stat. 555; 5 U.S.C. §652. See Bush v. Lucas, 462 U.S. 367, 381-384, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). Section 6 of the Act of August 24, 1912 provides, inter alia: “That no person in the classified civil service of the United States shall he removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing….”

Leading up to World War II, Title 5 of the Code of Federal Regulations of 1938, Sections 7.1(c), 12.1, and 12.101 specifically provided for notice in writing with a “full statement of reasons” to a probationary employee, but did not enumerate that termination of a probationary employee for pre-appointment reasons required additional procedures. 5 CFR from 1938, secs 7.1 and 12.1, 12.101. Indeed, the Civil Service Commission’s powers in 1938 were quite limited, even for employees who had completed their probationary periods. See, e.g., 5 CFR from 1938, at 12.4.

The number of federal employees exploded with World War II, and various Executive Orders and revisions to the 1912 Act were implemented to allow exploration of federal employees’ backgrounds – and, in particular, their loyalty to the United States, in light of the War and the surge of McCarthyism (searching for associations with Communists) during the Cold War thereafter. See, e.g., Cole v. Young, 351 U.S. 536, 76 S.Ct. 861, 100 L.Ed. 1396 (1956) (discussing history of loyalty oaths and dismissal of employees with pre-employment history of Communist associations); Exec. Order No. 10,450, 18 Fed. Reg. 2489, 1953 WL 5976 (Pres.Exec.Order) (Pres. Eisenhower-era Executive Order authorizing agencies to conduct loyalty review for inter alia Communist associations and mandating the Civil Service Commission to track loyalty investigation information); Welcker v. U.S., 752 F.2d 1577, 1578-1579 (Fed. Cir. 1985) (discussing history of loyalty oaths).

In 1954, President Dwight Eisenhower expanded the power of the Civil Service Commission generally to encompass greater investigative authority. See Exec. Order No. 10,577, 19 Fed. Reg. 7521, 1954 WL 6021 (Pres.Exec.Order). Under Sec. 5.4(c) of EO10577, the Commission was empowered to overturn adverse actions and reinstate employees where procedures were not followed in effecting such, or where adverse actions were “taken for political reasons except as may be required by law, or resulted from discrimination because of marital status.”

By the final months of John F. Kennedy’s presidency, on the brink of the civil rights era, still reeling from the abuses of McCarthyism, new regulations were implemented largely reflecting the same procedural safeguards for probationary employees related to terminations on pre-employment grounds that are in place today. Published September 14, 1963, to go into effect just days before Kennedy’s assassination (November 17, 1963), the Federal Register, beginning at 22 Fed.Reg. 10022, contains 5 C.F.R. § 315.805 regarding termination of probationers for conditions arising before appointment.

The 1963 regulation states:
When an agency proposes to terminate an employee serving a probationary or trial period for reasons based in whole or in part on conditions arising before his appointment, the employee is entitled to the following:

(a) Notice of proposed adverse action. The employee is entitled to an advance written notice stating the reasons, specifically and in detail, for the proposed action.
(b) Employee's answer. The employee is entitled to a reasonable time for filing a written answer to the notice of proposed adverse action and for furnishing affidavits in support of his answer. If the employee answers, the agency shall consider the answer in reaching its decision.
(c) Notice of adverse decision. The employee is entitled to be notified of the agency's decision at the earliest practicable date. The agency shall deliver the decision to the employee at or before the time the action will be made effective. The notice shall be in writing, inform the employee of the reasons for the action, inform the employee of his right of appeal to the appropriate office of the commission, and inform him of the time limit within which the appeal must be submitted as provided in § 315.806(d).
As such, by 1963, the regulation we have today was largely in its final form, and gave probationary employees important procedural protections as to adverse actions premised on matters which arose pre-employment, which, earlier (recall the 1938 regulations) had only been available after probation. See also Christian v. New York State Department of Labor, Division of Employment, 414 U.S. 614, 618 n. 4, 94 S.Ct. 747, 39 L.Ed.2d 38 (1974) (citing 5 C.F.R. §315.805 with essentially the same requirements as today).

Though the Civil Service Reform Act of 1978 (CSRA) is considered the most comprehensive legislation expanding Federal employees’ rights since the Pendleton Act of 1883 (see N.L.R.B. v. Ohio New and Rebuilt Parts, Inc., 760 F.2d 1443, 1446 (6th Cir. 1985) (citing S.Rep. No. 969, 95th Cong., 2d Sess. 45, S.Rep. No. 95-969 (1978), the CSRA did not shift the strong regulatory, procedural protections already in place to protect probationary employees relating to terminations for pre-employment reasons. The CSRA did implement strong language intending to ensure that Federal employees be terminated “for the right reasons” – and not arbitrarily or capriciously – and the Merit Systems Protection Board was created to replace the Civil Service Commission with that paramount objective. The framers of the CSRA explained, “The Merit Systems Protection Board will assume principal responsibility for safeguarding merit principles and employee rights…,” noting, “There is little doubt that a vigorous protector of the merit system is needed.”

One of the cardinal values underpinning the creation of the Board was to protect applicants and probationary employees, as well as longer-term employees, “against inquiries into, and actions based upon, non-job-related conduct.” “The privacy and constitutional rights of applicants and employees are to be protected.” See also the Senate Report, stating: “Employees are to be retained on the basis of their performance….”; “Employees are to be protected against arbitrary action….” The legislative history regarding performance-based actions (under Section 43 of the CSRA) notes that “it is inappropriate to restrict an agency's authority to separate an employee who does not perform acceptably during [the probationary] period,” but there is no similar language regarding conduct-based actions under Chapter 75, and certainly no such language relating to pre-employment reasons for termination. In sum, probationary employees had been and remained procedurally-protected after the CSRA’s passage. Indeed, the Senate Report discussing the rationale for the CSRA’s provisions on conduct-based adverse actions focused largely on how extensively the procedural protections for employees were increased and codified by the statute.

Until the administration of Bill Clinton eliminated the Federal Personnel Manual in 1994 during its “reinventing government” campaign, the latter gave detailed instructions on how Federal agencies were to comply with §315.805. Though the Manual is no longer extant, it remains illustrative of the sort of things agencies can do to ensure compliance with the largely-unchanged §315.805:

Termination for pre-appointment reasons. When the termination action is initiated for reasons based in whole or in part on something that occurred before entrance on duty (such as the intentional falsification of application forms or other pre- appointment documents), the probationer is entitled to advance notice which:
-- states the reasons in sufficient detail for the employee to be able to understand and reply to them;
-- informs the employee that he or she may reply in writing with supporting affidavits;
-- identifies the individual or office to receive the reply; and
-- sets a reasonable time for its preparation and return of the reply.
(This gives the probationer essentially the same consideration he or she would have received from OPM had the derogatory information come to light before appointment.)

A probationer is not entitled to a hearing. If after giving bona fide consideration to the employee's response, the agency decides to proceed with the termination, it must notify the employee at or before the time the action will be made effective. The notice must state the reasons for the action and clearly identify which of the charges in the advance notice are being relied upon, the effective date, and the right to appeal to the Merit Systems Protection Board under the limited circumstances in section 8-7 of this subchapter. (The probationer may appeal only the procedures, not the merits of the action.) The procedures discussed in this paragraph do not apply when OPM directs the termination.

Federal Personnel Manual: 8-6.d, “Taking Action against Probationers.”

Though 5 C.F.R. §315.805 has been amended since it took roughly its present form in the early 1960’s, it has never been amended to permit terminations of probationary employees relating to their responses on pre-employment or EOD forms without providing such individuals their procedural rights. See, e.g., 55 Fed. Reg. 29339-01, 1990 WL 335863 (F.R. July 19, 1990) (amendment expanding scope of protections of §315.805). Most recently, in 2008, the Office of Personnel Management (OPM), now charged (along with the President) with issuing regulations governing appointments and the probationary period (5 U.S.C. §1302; 5 U.S.C. §3321), only expanded the rights accorded regarding terminations during probationary periods, conforming to several precedential Federal Circuit and Merit Systems Protection Board cases. See 72 Fed. Reg. 23772-01, 2007 WL 1243729 (F.R. May 1, 2007) (notice of proposed rulemaking outlining intent of regulatory changes to adopt into regulations the interpretations provided in significant decisions of this Court and the Board, regarding manner of crediting time toward completion of probationary period); 73 Fed. Reg. 7187-01, 2008 WL 319999 (F.R. February 7, 2008) (final rule embracing this rationale and adopting the current language of §315.805, with the introduction to the regulation still (as in 1963) containing the procedural entitlements where terminations are proposed “based in whole or in part on conditions arising before his appointment”).

In this most recent revision to §315.805, OPM did not adopt a standard to reform the regulations in the manner the Government is now seeking to implement - i.e., that pre-appointment matters subject to the employee’s attestation during EOD become post-appointment matters, eliminating the Board’s jurisdiction to hear procedural challenges.

If you have a case involving termination from the Federal Government during your probationary period for pre-employment matters, contact Bryan Schwartz Law today.

Friday, January 21, 2011

Quick Takes: Employment Discrimination

Many interesting stories about workplace discrimination have made the news recently and we decided to try a slightly different format this month. Instead of focusing on one topic, we will briefly discuss a few of them.

Discrimination in the Workplace—Amplified by the Recession?

Discrimination claims with the federal Equal Employment Opportunity Commission have risen to an all-time high—nearly 100,000 complaints were filed over the last year, according to Catherine Rampell in her article entitled, “More Workers Complain of Bias on the Job, a Trend Linked to Widespread Layoffs,” New York Times, Jan. 11, 2011. This increase is possibly a result of the high number of private sector layoffs. Id.

The highly competitive job market may also be used as an excuse to discriminate. Terry K. Nance, a 76 year old from Charlottesville, VA, who has been unable to find retail work for the last year and a half, told the New York Times: “I think there’s age discrimination from these companies because they don’t want an old body and an old face fronting for them . . . . When I go back in and I show up [at] these same places I’ve applied to and never heard back from, I see younger faces in there all the time. It’s a revolving door of young people.” Id.

If you have not been hired for a position you applied for and you have reason to believe that it was because of your race, national origin, sex, sexual orientation, religion, or disability, contact an attorney at Bryan Schwartz Law right away.

The Glass Ceiling—Still Intact in California

Discrimination persists at the highest levels of business leadership in California. A recent study of California’s 400 largest public companies conducted by the UC Davis Graduate School of Management found that women hold only 9.5% of the state’s highest-paid management and board positions. See “UC Davis Study Finds Women Scarce at the Top of Corporate California,” available at Moreover, more than a third (141) of these 400 companies have no women whatsoever on their boards of directors or as top executives. Id. Only 4% of these top California companies have a woman CEO. Id.

If you have been passed over for a promotion because of your gender, contact an attorney at Bryan Schwartz Law right away.

Employers Must Prove that They Took Immediate and Appropriate Corrective Action to Correct Hostile Work Environment Harassment—Even in Circumstances when Customers/Clients are the Harassers

Joyce Turman worked for a halfway house as a resident monitor in Salinas, CA from 1999 to 2004. The halfway house served to transition federal and state prisoners into society prior to their full release. In her job, Ms. Turman alleged that the residents regularly propositioned her for sex, subjected her to crude sexual gestures, and called her “whore” and other even more explicit slurs. When Ms. Turman complained to her supervisor about this conduct, she was told that the residents “don't really mean it,” and that that she should “try and be nicer to ‘em.” He also told Ms. Turman not to write the residents up for disciplinary violations as often as she did. Ms. Turman claimed that this abuse made her feel degraded and sick. In 2004, Ms. Turman was terminated based on a rule against women working alone at night in the facilities and a reduction in staffing numbers.

Ms. Turman filed a sex discrimination and harassment lawsuit challenging her termination and the hostile work environment created by the residents. The halfway house argued that “harassment by prisoners is inherently part of the job,” as a method to excuse their failure to take corrective action. The Court of Appeal (Sixth District) ruled otherwise and clarified that the halfway house was still under an obligation under the California Fair Employment and Housing Act to take immediate and appropriate action to correct the situation, reasoning that “[w]hile it may be true that male residents who are living under restricted conditions are more likely to harass or mistreat their female supervisor, it does not absolve [the halfway house’s] legal responsibility . . . .” Turman v. Turning Point of Central California, 191 Cal.App.4th 53 (2010).

Workplace harassment frequently comes from clients, customers, and co-workers, as well as supervisors. Employees have a right to be free from workplace harassment based on sex or other protected characteristics, and employers have an affirmative obligation, once they are aware of the harassment, to take immediate and appropriate corrective action to remedy the situation.

 If you have been passed harassed at work, contact an attorney at Bryan Schwartz Law right away.