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
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.