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A Post-Brinker Victory for Employees: Bradley v. Networkers International, LLC

Friday, December 21st, 2012
In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements.  In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.

 

Last week, in Bradley v. Networkers International, LLC (December 12, 2012)  —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.

Background

While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker.  Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal. 

Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.

Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.

In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.

Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action. 

The Court of Appeal’s Decision on Remand

Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
 
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform)  lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.

The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code. 

Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable.  In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.

The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.

Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.

About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.

Fired in real time: A little bit pregnant

Tuesday, April 5th, 2011

Image: Bob RosnerOne phrase comes to mind as I started calling my friends to tell them that I had been fired, “a little bit pregnant.” I’m a guy, so please remember, this is a metaphor.

I’ll explain. The American Dream isn’t just big cars and summer houses. No, at it’s heart is the belief that everyone has a chance to be successful. Put another way, there is an essential fairness or rationality that is the foundation of how the world of work works. As an equation it might go something like this, hard work = success.

I don’t think I’m alone when I admit that when I’ve seen people around me fired or laid off I’ve leapt to the opposite conclusion. That on some level, they deserved it. Okay, now that I’ve gone down this path, please tolerate one more equation, failure = failure.

That’s where being a little bit pregnant comes in.

I think most people assume that when you are fired you might not be 100% at fault, but you are at least a little bit guilty of something. Hence, anyone fired is at least a little big pregnant.

This not only helps to explain what happened to anyone who is fired, it also helps to justify why you still have your job. Because you clearly aren’t a failure.

I’ll save you the gory details of my firing, but I believe it wasn’t because I wasn’t doing my job. No, there were plenty of people at my old company who fit in that category. In fact, I’ve never worked anyplace where more people would say in normal conversation, “What exactly does he do for us?” Really, I heard people say that about at least 20% of the employees.

No, I was fired because I actually tried to do my job.

I was initially hired as a spokesmodel for the company, however, if you knew what I looked like that reference would be even funnier.

My role was to talk about the product with customers, the media, etc. However, what I quickly discovered was the marketing and sales function wasn’t broken, it was non-existent. So I filled the vacuum by creating a new name for the company, a marketing plan, sales collateral, I suggested product modifications based on client input and I started making sales calls. In addition to this I spent my first two months playing company therapist, going office to office to get people pointed in the same direction. On occasion, I even got in harms way between two warring staffers.

The responses to our sales calls varied from “like” to something bordering on adulation. But five months in I realized that we were 0 for 30. Yep, we’d made thirty sales calls and had not sold our product to one client.

I know what you’re thinking, I should have been fired for sheer sales ineptitude. Ironically, this would have been much easier to handle than the reason that I was actually fired for. Much easier.

I spent a long weekend thinking about how we could end this horrific losing streak and I realized that there were a number of contributing factors. First, with no clients, every company we talked to had to decide if they wanted to become our guinea pig. We also didn’t have examples of real companies using our product. So we needed to connect the dots for our customers. Finally, I came up with a visible and credible organization that would agree to serve as our launch client and could connect the dots for potential customers.

Guinea pig, no longer an issue. Connect the dots, check.

I put this in a report for my boss. Needless to say I learned that you should never present a report to your boss entitled “0 for 30.” However, not in the way that you’re probably thinking.

My boss didn’t seem to be bothered at all by our lack of sales. His first response was to say, “No one has said ‘No’ to us so far.” He felt that it all was just a matter of time before we’d land a series of major sales.

The stunner was when he said, “You can’t ever use the phrase 0 for 30 again. Not within earshot of me or in any emails.” Here is the clincher, “Because it will hurt the feelings of all of the staff members who’ve worked so hard on the product.” He concluded, “And I don’t ever want a potential investor to see the phrase ‘0 for 30.’”

Feelings? And that the only way that an investor would learn that we didn’t have any customers was because they read an email by me?

Two weeks after presenting the 0 for 30 report I was fired for not getting along with staff. Two staffers were mentioned by name.

My a-ha: Mine was probably more of a mercy killing than a firing

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Holding Yourself Back

Monday, January 3rd, 2011

Image: Bob RosnerThis is a first, this week’s blog is a letter to a friend. But I think the message applies to a many people out there. Heck, if the shoe fits, consider this your New Year’s Resolution…

Dear R.

If Eskimos have many different words for snow, you have a similar huge repertoire of ways to put yourself down, to diminish your accomplishments. I wish you could watch yourself, you’re ruthless at attacking any compliment that’s thrown your way. It’s like a more efficient version of the old Star Wars missile defense shield, every compliment is shot down long before it reaches its intended target.

Okay, I think a little self-doubt can be a great thing. Lord knows, a number of people have told me that through the years. But in your case you not only don’t get the buzz off people saying nice things about you, you put energy into attacking what they say. It must be incredibly tiring.

I have a simple rule. If all of the people around me believe that I’ve got what it takes to get the job done, even if I have my doubts, I can be persuaded to accept their point of view. Especially when the people who are tossing bon mots are clearly experienced, savvy and insightful.

So here is your homework assignment. Practice saying, “Thank you Bob.” “Thank you J.” “Thank you D.” Don’t let Nancy Negative take hold, just practice the art of graciously accepting compliments tossed your way. Given how few and far between they are for most of us, it’s a silly source of fuel for you to squander.

40 hours a week is tough enough. Treat compliments like the ballast that allows you to survive the workplace grind. In fact, I even know people who keep a file of nice things that have been written to them. One woman, would even write down compliments that were said to her and put then in her file. She calls it her “victory file” and she reads it on those tough days when everything is going wrong to put herself back into a more positive frame of mind.

You might never get rid of those negative thoughts rattling around inside your head. That said, just because they’re there, doesn’t mean that you have to listen, or act, on them. You can just let them fall on deaf ears. Your own.

Again, I’m a fan. I think you have a lot of potential for helping to take us to the next level. But we all need you to stop beating yourself up and putting all that energy into moving all of us forward. We can afford to squander any energy with the challenges that lay ahead of us.

So please consider this a pat on the back. And a kick in the butt.

About The Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via bob@workplace911.com.

Harassment for All

Monday, November 16th, 2009

Image: Bob RosnerIn a landmark decision, California’s Supreme Court held that two women who were not involved in a workplace affair had grounds to sue because the women who were having affairs with the boss received preferential treatment.

Prison and party don’t normally go together in my mind. But after reading about the workplace where the harassment took place, California’s Valley State Prison for Women, I’ll have to think again about what goes on behind those guard gates and razor wire.

Let me explain. Two Valley State women employees sued because they claimed that the warden promoted women who he was romantically involved with over women who were not sleeping with him. This is where the case gets interesting. The warden wasn’t having one affair. He wasn’t sleeping with two women at the same time. He managed to maintain THREE concurrent affairs. Actually the CNN description didn’t even stop there; its report said that he had “at least” three affairs.

This guy gives new meaning to the phrase “working around the clock.” I’m a guy and the thought of maintaining three affairs just wears me out. Then again, just being a warden, I thought, would manage to occupy your full attention too.

This case also is a great example of the law of “unintended consequences.” This is where we are so focused on what we are doing, that we fail to see its unintended results on the people around us. After reading much of the commentary surrounding this decision, there was a common thread that this case would obviously be overturned by the right coast Supreme Court (isn’t it interesting how the coast of both so completely aligns with their political affiliations?).

Whether the case is overturned or not, it clearly shows the danger of putting all your eggs in the workplace basket. Many of us spend a huge amount of time at work, we make all of our friends at work, we derive most of the meaning for our lives from work and yes, we often date the people at work.

This case points out that our actions, especially dating, can have an impact far beyond us. It’s like when you throw a rock into a calm lake and the wake generated flows in all directions. Relationships not only make work complicated for the people involved, it makes things complicated for everyone that they come into contact with.

What’s so ironic is that so many people seem to think that they are like Casper the Friendly Ghost at work—invisible. Nothing could be further from the truth. There is only one workplace dogma that I believe—no one can keep a secret indefinitely at work. And if you are a boss, well the odds go down even further. Because, whether you like it or not, every person who works for you is always watching everything that you do or say.

So according to the California Supreme Court, if you are a supervisor who dates at work, don’t be surprised if you are suddenly greeted by an orgy of lawsuits.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. If you have a question for Bob, contact him via bob@workplace911.com.

Sex At Work: Guidelines to Avoiding a Sticky Situation

Wednesday, October 21st, 2009

Image: Nicole WilliamsAuthor of Girl on Top: Your Guide to Turning Dating Rules into Career Success

Let’s face it. We spend more waking hours at work than at home. And considering the fact that men think about sex every 52 seconds (true stat!), to think that hookups aren’t taking place in the office is not only absurd, it’s naïve. Today’s working singles have little time to socialize with existing friends, much less meet enough new people to successfully find love.  An estimated 10 million couples met their mate at the office in 2003.  Some found themselves in sticky situations with far reaching career consequences, even resulting in the loss of their job. Others had a fling, married co-workers or engaged in extramarital affairs. It’s no longer just the classic image of the male boss chasing his female secretary around the desk. Women are initiating the trysts as well, and are even doing so with subordinates.

It is becoming more common for companies to ask workers to sign love contracts, which require them to alert their bosses to an office romance, confirm that it is indeed voluntary and inform them when they break up. Other companies have policies against in-office relationships. However, with or without these restrictions, negotiating an office love affair can be tricky. It’s difficult to avoid distractions, conflicts, and gossip, not to mention the complications if and when the relationship ends. Ultimately, if you start an office love affair, you need to keep your résumé up to date, because it’s likely that one of you will need to look for a new job.  Of course, if you understand the risks and insist on taking them for the sake of finding love, here are a couple of guidelines to follow:

Know Your Company’s Policy on Inter-office Dating
If there are special rules, make sure you talk together about it first and are clear about the potential ramifications before moving forward.

Don’t Keep It Secret
If you are hiding your relationship, it’s likely that you shouldn’t be in it in the first place.

Be Discreet and Act Professional
Nothing will put off your colleagues and superiors more than public displays of affection, much less sexual exchanges on office property. I’ve heard some great stories about the places in the office couples find to have sex; the boardroom seems to be the favorite, followed by the snack room and elevator. But these quickies are often discovered and may result in much more dire consequences than a little gossip around the cooler.

Be Aware of Sexual Harassment
This is true especially if you are thinking about starting a relationship with a subordinate. Even if you are both enthusiastic, if the relationship gets rocky, you might find yourself facing charges.  A subordinate is arguably incapable of consenting freely to a relationship with her supervisor, because of the inherent pressure and influence of a direct superior’s advances.  By the way, your company is the one that pays the harassment bill. And insurance doesn’t cover it.

Finally, if you find yourself in an office entanglement that has gotten tricky, or if you have doubts about how to handle the office politics around your affair, think about making use of the human resource department. They will be able to advise you and advocate for you should you need it. In general, while an office affair can work out, it’s often more trouble than it’s worth. But, as Shakespeare once put it, “The heart knows reason that reason knows not.” In other words, “sometimes we just can’t help ourselves.”

©2009 Nicole Williams, author of Girl on Top: Your Guide to Turning Dating Rules into Career Success.

About the Author: Nicole Williams, author of Girl on Top: Your Guide to Turning Dating Rules into Career Success, is the best-selling author of Wildly Sophisticated: A Bold New Attitude for Career Success and Earn What You’re Worth, and the founder of WORKS by Nicole Williams, the first media and content company marketed toward young professional women. Her advice is featured regularly in major media outlets including Elle, Cosmopolitan, Glamour, Marie Claire, the Wall Street Journal, and the Financial Times. Nicole also regularly appears on The Today Show, ABC’s Primetime, Good Morning America, Fox News, and CNN.

You can visit Nicole’s websites at www.NicoleWilliams.com and www.GirlOnTopBook.com.

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