caemploymentlaw

Monday, July 21, 2014

AAA Gold Exchange Class Action : About This Case: Cuevas v. AAA Gold Exchange

AAA Gold Exchange Class Action : About This Case: Cuevas v. AAA Gold Exchange: This blog is for informational purposes about a pending California class action lawsuit and how you can participate if you are an intereste...

Wednesday, June 25, 2014

Lawyers Allowed to Review Jurors’ Social Media per ABA Ethics Opinion

The American Bar Association (ABA) has ruled that lawyers are allowed to search a juror’s or potential juror’s public Internet presence, which can include postings by the juror in advance of and during a trial. However, sending “friend” requests, “following” or other such access requests are considered an ethics violation, the ABA said.




“In the world outside of the Internet, a lawyer or another, acting on the lawyer’s behalf, would not be engaging in an improper ex parte contact with a prospective juror by driving down the street where the prospective juror lives to observe the environs in order to glean publicly available information that could inform the lawyer’s jury selection decisions,” the ABA’s formal opinion stated. 




One of the more perplexing issues is that jurors can receive social media notifications that they have been searched, such as on LinkedIn. While the ABA deemed this to be ethically sound, its opinion cited a dissenting recent ruling on the matter. A decision by the New York City Bar Association in 2010 said that any notice sent to a potential juror about a search amounts to an unauthorized communication. 




“The fact that a juror or a potential juror may become aware that the lawyer is reviewing his Internet presence when an ESM network setting notifies the juror of such review does not constitute a communication from the lawyer,” the ABA’s opinion said.




Not all states adopt the ABA's opinions and each State Bar Association publishes their own guidelines.

We try a lot of cases so we will watch California's reaction to this opinion closely.




If you have any questions about employment law related matters, please feel free to contact us at www.quintlaw.com or directly by phone 949.458.9675.








Tuesday, June 10, 2014

The firefighter afraid of fighting fires loses his ADA claim

The firefighter afraid of fighting fires loses his ADA claim. Right, you guys? Right?!?

Monday, April 22, 2013

United States District Court Finds Meal and Rest Period Compensation is a Wage

United States District Court Finds Meal and Rest Period Compensation is a Wage

This Court decision, though non-binding on California State Courts, has answered many questions that lawyers, employees, and employers have regarding meal and rest breaks. Normally California employers are required to pay premium pay for missed meal and rest periods. Employers looking to update their policies or have them reviewed to ensure they are in compliance should contact Quintilone & Associates at req@quintlaw.com. For more information on seeking payment for missed meal and rest periods or off the clock work as well as reimbursement of business expenses and whether you have a potential claim please contact Quintilone & Associates at req@quintlaw.com

Thursday, August 02, 2012

PARTNERS CAN SUE THEIR PARTNERSHIP FOR RETALIATION UNDER FEHA

Generally, a partner does not have the right to sue his/her partnership for discrimination, harassment, or retaliation under Title VII or the California Fair Employment and Housing Act (“FEHA”). This is because a partner is not in an employment relationship with the partnership. However, the California Court of Appeals recently held in Fitzsimons v. California Emergency Physicians Medical Group, 205 Cal.App.4th 1423 that if a partner alleges that the partnership is retaliating against the partner because he/she complained about unlawful discrimination or harassment of the partnership’s employees; the partner has the right to sue under FEHA.

In Fitzsimons, Mary Fitzsimons, a partner of the California Emergency Physicians (“CEP”) and an emergency physician filed suit against CEP alleging that she had been terminated in retaliation for reports she made to her supervisors that certain officers and agents of CEP had sexually harassed female employees. Initially, the trial court found in favor of CEP based on the grounds that a partner does not have standing to assert a claim under FEHA.

Fitzsimons appealed and the Court of Appeals reversed the trial court’s judgment. In finding that Fitzsimons could bring an action under FEHA for retaliation, the court reasoned that FEHA makes it unlawful for CEP to retaliate against any “person” for opposing harassment and the term” person in this context included a partner. The court did caution, however, that the general rule still stands – a partner cannot sue the partnership for harassment or discrimination directed at the partner herself/himself.

The Fitzsimons decision means that in contrast to Federal law, under California law partnerships face potential liability for retaliation against partners who report discrimination or harassment against employees.

This Court decision has answered many questions that lawyers, employees, and employers have regarding a partner’s right to sue. California partnerships should review their anti-retaliation policies and provide training on such policies.

Employers looking to update their policies or have them reviewed to ensure they are in compliance should contact Quintilone & Associates at req@quintlaw.com

For more information and to determine whether you have a potential claim please contact Quintilone & Associates at 949.458.9675 or info@quintlaw.com  


Saturday, April 14, 2012

The California Supreme Court Announces Big Decision for Employees

The California Supreme Court just announced a big class action employment decision in Brinker Rest. Corp. v. Superior Court. The decision clarifies some laws as they pertain to employers and employees, and sets forth a simple three part test for meal period compliance. 

The Court specifically held that employer satisfies [its meal period compliance] obligation if it (1) relieves its employees of all duty, relinquishes control over their activities and (2) permits them a reasonable opportunity to take an uninterrupted 30-minute break, and (3) does not impede or discourage them from doing so.  What will suffice may vary from industry to industry, and we cannot in the context of this class certification proceeding delineate the full range of approaches that in each instance might be sufficient to satisfy the law.   Slip op. at 36 (emphasis added) (citing Cicairos v. Summit Logistics, Inc. (2005) 133 Cal.App.4th 949; see Id at 31 ("Employers must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please."); id. at 6, 27 (describing rejected employer argument that "an employer is obligated only to 'make available' meal periods").

The Court declined to accept the final additional bit of the Plaintiffs argument, that employers must also “prohibit work” during meal periods.  Slip op. at 33.  The Court rejected the employers’ contention that meals need only be “offered.”  According to many news articles, Brinker is claimed to have held that “[e]mployers must only make meal-and-rest breaks available,” which is an incomplete reading of the opinion.  The California Supreme Court rejected that argument, holding instead that employers must take significant affirmative steps beyond making meal periods “available.”

There are a number of other quick holdings that employees and employers need to take away from the ruling:

First, the Court reaffirmed that meal and rest period lawsuits are often suitable for class treatment (which simply means many employees can sue the employer together as opposed to each filing separate lawsuits).

Second, the Court set out clear guidelines for employers regarding the number and timing of rest breaks, upholding the trial court’s decision to authorize a class action on those claims.  The Court found that, the first meal period must be provided after no more than five hours of work. If an employee is entitled to a second meal period, the employer must provide it after no more than ten hours of work.

Third, the court also clarified what it means for an employer to “provide” a meal period. It means that the employer (1) relieves the employee of all duty for an (2) uninterrupted thirty minute period [for example permits the employee to leave the work premises] and  (3) does not discourage the break. The employer does not need to ensure that no work is done during the meal period, but must pay the employee at his or her regular rate if the employee works through his or her meal period.   If an employee is forced to work through their meal period a regular hour of premium pay is due as provided by the Labor Code § 226.7. 

Fourth, the court addressed rest periods. Employers in California are obligated to provide rest periods. The question is “when?” The Court held that an employee is owed a ten minute rest period for every portion of four hours worked after an employee works three and a half hours. In a nutshell, employees are entitled to ten minutes of rest for shifts from three and a half to six hours, twenty minutes for shifts of more than six hours up to ten hours, and thirty minutes for shifts of more than ten hours up to fourteen hours, and so on. 

This Court decision has answered many questions that lawyers, employees, and employers have regarding meal and rest breaks. Normally California employers are required to pay premium pay for missed meal and rest periods. Employers looking to update their policies or have them reviewed to ensure they are in compliance should contact Quintilone & Associates at req@quintlaw.com.  For more information on seeking payment for missed meal and rest periods or off the clock work as well as reimbursement of business expenses and whether you have a potential claim please contact Quintilone & Associates at req@quintlaw.com

Monday, March 19, 2012

Courthouse News Service reports Bar Members Sue Bank of America

Courthouse News Service

Bar Members Sue Bank of America