Top 10 Funny Employment Law Cases

From Law.com via Blawg Republic:

I like #7, maybe because I just made a joke about blonde's being a protected class earlier this week...

7. The 7th Circuit has ruled that punitive damages awarded to an employee in Lust v. Sealy Inc., a sex discrimination case, were excessive. Tracy Lust was promoted by Sealy to a position in its Madison, Wis., office two months after being passed over for a position in its Chicago office -- and shortly after she filed a charge with the Equal Employment Opportunity Commission. The court pointed out that her supervisor "had a history of making sexist remarks to Lust such as 'You're being a blonde again today.'" But the usually dour Judge Richard A. Posner, in a rare moment of levity, quipped: "Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists."

Free Advice Wednesday: Commissions

QUESTION
I pay my employees based on commissions. Do I still have to pay them minimum wage, even if they don't earn it?

ANSWER
Yes.

There really aren't any exceptions to the minimum wage laws. And the penalties for violating them can be steep. First of all, you can be sued. Second, you can be held liable for the employee's attorney's fees that he accrues to get that money back. Third, you will also incur "waiting time" penalties, up to a month's worth of wages, for the time the employee went without the minimum.

What's worse is, if the employee was previously "exempt" from overtime, an income level dropping below twice the minimum wage (for full time) will also make that employee non-exempt.

Be careful setting compensation levels. It may not seem fair, but you're better off paying a little more to avoid these pitfalls. Just consider it a form of insurance.

Free Advice Wednesday: Can My Employer Make Me Use My Own Car?

QUESTION

Can my employer make me use my own vehicle for work?

ANSWER

Sure.

But it's probably not the best idea that they do that, from their perspective, because it opens them up to liability in situations they might not otherwise have it. From yours, it means that you incur expenses in gas, wear and tear, and so forth. You're entitled to reimbursement for those expenses under Labor Code section 2802. There are handy charts that can tell you how many cents per mile you should get.

UPDATE: The DLSE considers the rates set by the IRS to be sufficient:

DLSE has opined that use of the IR S mileage allowance will satisfy the expense s incurred in use of an employee’s car in the absen ce of evidence to the contrary.

Disclaimer: The above advice is not intended to reflect any actual situation and reflects a casual scan of the law as understood by the author at this moment. Anyone who needs legal advice to meet their particular situation should retain counsel, and SIOULD NOT rely on the above.

Mendoza v. Town of Ross 1st Dist. No. A103878

I haven't found a case I thought was worth posting in a while, but I thought this one at least added something to the parameters of the FEHA.

. . . [W]e conclude that the trial court correctly sustained the Town’s demurrer without leave to amend because Mendoza was an uncompensated volunteer and not an “employee” for purposes of imposition of liability for unlawful employment practices under FEHA.

Mendoza v. Town of Ross, 1st Dist. No. A103878 at 1.

The Opinion goes on to clarify the source of the definition of "employee" for FEHA purposes:

More helpful is the definition of “employee” contained in regulations enacted by the Department of Fair Employment and Housing (the Department) to implement the FEHA. The Department, which was created by the FEHA (§ 12901), defines an employee as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal. Code Regs., tit. 2, § 7286.5(b).) While the interpretation of a statute is ultimately a question of law, appellate courts will defer to an administrative agency’s interpretation of a statute or regulation involving its area of expertise, unless the interpretation flies in the face of the clear language and purpose of the interpreted provision. (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104.) Far from being in conflict, section 7286.5, subdivision (b) of title 2 of the California Code of Regulations fills a gap in the governing statute, and provides a workable definition of who may be considered an employee, and thus entitled to the protection of the FEHA.

Thus, on its face, the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.

Id. at 6.

Free Advice Wednesday: Maximum Hours For "Salaried" Employees?

Welcome to a new feature of CLEL: "Free Advice Wednesday." I'll be posting on topics that come up from time to time that I think are worth getting out there. Of course, as a disclaimer, you should never do what I say, this is all hypothetical, etc.

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QUESTION

There's no maximum time a salaried* employee can work, right?

ANSWER

Wrong.

Employees can work 24 hour days, but they can't work for more than six days per week, on average. There are exceptions for emergencies, protection of the loss of life or property, CBAs, and a few other rare circumstances. The DLSE can issue exemptions, though, if they choose to any employee or employer.

It's a misdemeanor if you don't comply and it also has typical Labor Code penalties associated with it too.

References: Cal. Lab. Code §§ 550 et seq.

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* This is the term that is going to most likely be used in a question asked to me. For the purposes of this question, I'm going to assume that in addition to they're being non-hourly employees they are also "exempt" employees.

AB 879 Amended

AB 879 was changed to provide that CCP 473.5 shall also be effective to provide relief from a forfeiture. See here (PDF).

One In Five Employees!

Yahoo (via LaborProf Blog) reports that "One out of five (20 percent) U.S. workers claims that racial or ethnic discrimination exists in the workplace, according to a national survey by Hudson, reporting that they know of someone who has been denied a job, increased pay or promotion because of their ethnicity. That figure jumps to 31 percent for African-American workers, yet drops to 18 percent among white employees."

I hope you've updated your employee handbook lately and have trained your supervisors on how to deal with these situations.

Storm's First Hypothesis of Employment Litigation

Storm's First Hypothesis of Employment Litigation (I will rename it in honor of the person who really came up with this as soon as I find out who it is--I never come up with anything original): slower wage growth means more employment lawsuits. (I have a closely related hypothesis that the overall number of employment lawsuits directly corresponds to the unemployment rate, also surely not original, but I don't know whose idea it is either).

Apropos of that. . .

Steven Greenhouse reports in the New York Times (reg. req'd) that "Even though the economy added 2.2 million jobs in 2004 and produced strong growth in corporate profits, wages for the average worker fell for the year, after adjusting for inflation - the first such drop in nearly a decade."

The article touches on, but doesn't directly tackle the issue that real wages by quintile of income have been more or less flat for 30 years in the lower quintiles, while the higher end 1% or so has had skyrocketing wages. There are a number of possible conclusions from this. On the one hand, it argues for a system that has decoupled work from wages and is inequtiably distributing the fruits of that work; on the other hand, it shows that the class more closely tied to the market system is doing the best. . . plug that into the social security debate.

I report, you decide. (;