Department of Fat Chance

Three bills are currently pending in the California legislature to curb missed break class actions. One basically shortens the statute of limitations to one year from four (SB 1192). Another states that an employer may "provide" an employee with a break merely by, well, providing one: Meaning make one available without interference. (SB 1539) (Note, this may be all the law currently requires). A third states that an employer may comply with the meal break requirement by ensuring the employee is provided with a break anytime within the first six hours. (AB 1034.)

I am confident that these bills will sail through California's democratic legislature.

Payroll Problems (All Of 2007)

Want to know what happened last year in wage and hour law? This is a good place to look.

What You Need To Know Today (About Illegal Immigration)

There have been a number of cases filed over the years alleging that employers who knowingly employ illegal immigrants commit RICO violations and depress the wages of legal workers. The validity of this legal theory is still a bit up in the air.

However, in a most recent case testing this theory, Hager v. ABX Air, a district court in Ohio held that, while a corporation could not be held liable as an illegal "enterprise" under RICO, individual executives could be held liable for conducting the affairs of an enterprise (i.e., the corporation) through a pattern of racketeering activity: The racketeering in this case being the knowing employment of 10 or more illegal immigrants.

Obvious note to executives: Do not knowingly employ illegal immigrants - especially on a wide scale.

Payroll Problems (Starbucks - Ouch)

We've all heard about the recent decision by a California Superior Court holding Starbucks liable for 100 plus million dollars because baristas had to share their tips with shift supervisors.

The positions of the parties (at least from a public relations standpoint) are pretty clear:

Starbucks: You've got to be kidding. 100 million dollars? Shift supervisors pour coffee just like baristas. Without a doubt, customers are sometimes tipping the shift supervisors for their service. You're telling us they can't share in the tips they've earned? You want us to screw our shift supervisors?

Plaintiffs: Why should supervisors be dipping their beak in our tip jar? And we're not screwing the shift supervisors. We're making sure you don't screw us. Just pay the shift supervisors more if you're so concerned about them. (100 million dollars over four years more, because that's how much they took from us.)

(A collection of quotes from the parties is here. Scroll down)

The Thumbnail: The genesis of the lawsuit is California Labor Code 351, which provides in part: "“No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to or left by a patron . . . ."

So, are shift supervisors - who I understand serve coffee side-by-side with baristas - employers or agents?

Well, probably not employers. However, "agent" is defined as "every person other than the employer having the authority to hire or discharge any employee or supervise, direct, or control the acts of employees." California Labor Code 350. I believe that one of the big issues in the case is whether shift supervisors are "agents." The fact that agents are people who "supervise," and Starbucks calls these people "shift supervisors" probably doesn't help the Company too much.

But that might not end the analysis. Another section of Labor Code 351 states that "Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for."

Do you see tension? The shift supervisors, in addition to maybe being agents, are definitely Starbuck employees. (Section 350 defines an "Employee" as "every person rendering actual service in any business for an employer.")

So, if the tip was left in part for the shift supervisors (and it surely was - customers don't distinguish between baristas and supervisors), then there's an argument that Starbucks had to give the shift supervisors their share in the tips. If it didn't, the supervisors could have brought a class action, claiming that Starbucks had taken from them a portion of their "sole property," i.e., the share of the gratuity that was left for them.

An employer can't possibly have an obligation to share and not share the same gratuity, yet that is what the statute seems to suggest with respect to supervisors who earn gratuities along with their co-workers and peers.

The appeal will be interesting. Plaintiffs (and their counsel) should not be counting their chickens just yet.

What You Need To Know Today (About Arbitration)

According to a new Supreme Court case, Hall Street Associates v. Mattel, an employer cannot build a "standard of review" into its arbitration agreements under federal law. Rather, the arbitration award must be reviewed under the very narrow final and binding standard set forth in the Federal Arbitration Act. This Supreme Court decision may effect the validity of arbitration agreements in California and other states. Among other things, some states require "meaningful" judicial review of arbitration awards as a condition to enforcing a pre-dispute, adhesive employment arbitration agreement. If such review is not possible, whither the arbitration agreement?

An analysis of the opinion is here.

How Employment Lawyers Think

1. Is there a law against familial status discrimination in Jamaica? Could this be a class action?

2. Michael may be harassing his lady friend. The conduct looks unwelcome, and subordinates can harass superiors.

3. False imprisonment?

Hmmmmm (Mucho Masturbation)

This just in. A judge who masturbates using a penis pump in Oklahoma, in the courtroom, in front of his staff, is not engaged in sexual harassment.

The district court's reasoning is thus:

Title VII is not a code of workplace conduct, nor was it “designed to bring about the magical transformation in the social mores of American workers.” (though, let's face it, it pretty much has.) Rather, Title VII targets discrimination based on gender, and “if the nature of an employee's environment, however unpleasant, is not due to her gender, she has not been the victim of sex discrimination as a result of that environment.”

In the instant case, Plaintiff is unable to demonstrate that Thompson's allegedly harassing behavior-namely, the fact that Thompson used the penis pump and had his penis exposed-was due to Plaintiff's gender. . . . Absent facts demonstrating that Thompson's conduct was motivated in some manner by Plaintiff's gender,Plaintiff's claim cannot survive summary judgment.

Hindman v. Thompson, 2008 WL 596106 (N.D. Okla 2008).

Note: Do not think this defense would necessarily fly in the Great State of California.

Note: Do not think that this decision means you can use a penis pump at work. If you do, and you are caught, you may get fired (heck, you will get fired), and you may go to jail, just like the good Judge Thompson did.