Last week, we posted about the recent uproar over employers and colleges seeking to require applicants to surrender their Facebook passwords as a condition of hiring/admission and how that practice may be analyzed by the courts under an invasion of privacy challenge.
California employers should also note that the California legislature has proposed a bill that would specifically outlaw the practice. AB 1844, proposed by Assemblywoman Nora Campos (D), if enacted as currently drafted:
(a) would prohibit an employer from requiring an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee; and
(b) would also provide that an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer’s failure to search or monitor social media, as defined, before hiring the employee.
The bill would add sections 980-982 to the California Labor Code to read as follows:
980. As used in this chapter, "social media" means an electronic medium where users may create and view user-generated content, including uploading or downloading videos or still photographs, blogs, video blogs, podcasts, or instant messages.
981. For purposes of a claim of negligent hiring, an employer does not fail to exercise reasonable care to discover whether a potential employee is unfit or incompetent by the employer's failure to search or monitor social media before hiring the employee.
982. An employer shall not require an employee or prospective employee to disclose a user name or account password to access social media used by the employee or prospective employee.
This bill is a mixed bag, as currently drafted. Proposed section 982 of the Labor Code would make it impossible for those California employers who wish to require applicants to surrender their Facebook and other social media passwords to engage in this conduct. Certain employers would see this as an unfair restriction. However, proposed section 981 of the Labor Code would protect California employers from negligent hiring lawsuits that are based on an employer's failure to search or monitor an applicant's social media profile and this would likely be seen as a positive piece of legislation by many California employers.
AB 1844 was referred to the Assembly Committee on Labor and Employment on March 5. We would not be surprised if this bill gained some traction as it may end up getting support from both employers and employees. We will continue to keep you updated on this and other important California legislative developments.
Over the last week or two, there have been many articles written about private employers and colleges that are requiring applicants to surrender their Facebook password as part of the hiring/admissions process. Today, Facebook's chief privacy officer published Facebook's position on this practice on its website. Click here for the details.
What is interesting about this, is that the position statement, published by Facebook's chief privacy officer, Erin Egan, a former Covington and Burling attorney, offers her legal opinions to try to convince employers (private and public), colleges, and others not to engage in this practice. Egan, offers the following legal analysis in the position statement:
"We don’t think employers should be asking prospective employees to provide their passwords because we don’t think it’s right the thing to do. But it also may cause problems for the employers that they are not anticipating. For example, if an employer sees on Facebook that someone is a member of a protected group (e.g. over a certain age, etc.) that employer may open themselves up to claims of discrimination if they don’t hire that person." "It also potentially exposes the employer who seeks this access to unanticipated legal liability."
"Employers also may not have the proper policies and training for reviewers to handle private information. If they don’t—and actually, even if they do--the employer may assume liability for the protection of the information they have seen or for knowing what responsibilities may arise based on different types of information (e.g. if the information suggests the commission of a crime)."
Setting aside whether or not private employers in California should be getting their legal advice from Facebook's chief privacy officer, Ms. Egan's advice that engaging in this practice is subject to challenge is accurate. However, Egan's statement fails to address the biggest problem for California employers (and colleges) who engage in this practice: the California Constitution's privacy protections.
In California, individuals have a constitutional right of privacy that is provided by the California Constitution. Article I, Section I of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." California courts have further held that this provision gives rise to the independent tort of invasion of privacy.
The California Supreme Court has held that to determine whether an individual's constitutional right of privacy has been violated the court must balance the compelling need for the information against the reasonable expectation of privacy the person has in the information. Most jurors and many judges have Facebook accounts, or at least have password protected information on the internet. Their expectation of privacy with respect to the information behind the password is almost always going to be very high. It will be difficult for most employers (other than perhaps those hiring for national security or other related positions where they are exposed to extremely sensitive information), or any college, to demonstrate a compelling or strong need for this information. Employers have been hiring employees without detailed personal information for hundreds of years. In most cases, it will be extremely difficult for an employer to demonstrate a new and sudden compelling need to get behind an applicant's Facebook password to be able to evaluate that individual. When that is measured against a practice that many view as highly offensive and a significant intrusion into personal privacy (requiring someone to give up their personal password), this practice would likely be found improper by our courts and is likely to give rise to an independent tort.
In sum, Egan's conclusion that requiring applicants to surrender their facebook password as a condition of employment or admission is a legally risky practice, appears to be very accurate. However, for California employers or employers hiring California applicants, the risks are even higher, due to the privacy protections of the California Constitution.
The Government will accept new H-1B visa filings on April 2 for a start date of Oct 1. H-1Bs are for college degreed professionals such as software developers, engineers, chemists, scientists, teachers, financial analysts, pharmacists, and dentists. The annual quota of 85,000 visas applies to first time H-1Bs, not to extensions with the same company or transfers to other companies.
It is suggested that employers query their departments to see if they have a need for such a visa for either a possible new hire or to keep a valued current foreign national employee work authorized. Due to the recession, the annual quota is not expected to fill up right away. However, employers should not wait too long. It is hard to predict when this year’s quota will be filled – possibly anywhere from one to five months.
Many employers have valued foreign national employees working on a one-year work permit after college (known as Option Practical Training or OPT). Since the OPT will expire, it’s important that the H-1B visa be explored to allow them to remain work authorized. Some employees are eligible for a one-time extension of their OPT (based on their education in science, technology, engineering, and math), but eventually will still need the H-1B visa.
Please note that it’s important that before you extend a job offer to a foreign national who requires sponsorship, you make sure that all immigration eligibility issues are covered such as their immigration history, eligibility for the visa, how much time in H-1B status they will be allowed, prevailing wage, etc. You don’t want any surprises.
Immigration issues should first be addressed on your job application and include two questions regarding work authorization: First, “Are you authorized to work in the U.S.” and second, “Will you require sponsorship to work in the U.S.” If the applicant answers “yes” to sponsorship, there are a host of permissible follow up questions regarding immigration status and history that can and should be delved into prior to extending an offer.
For more information and/or assistance with H-1B issues, please contact Greg Berk at (949) 622-5851 or email@example.com.
One of our last posts reported on a California court refusing enforcement of an employment arbitration agreement on unconscionability grounds. Today we report on yet another example. In Mayers v. Volt Management, the court invalidated an employee’s agreement to arbitrate his discrimination claims, finding the employer’s arbitration agreement too unconscionable to be enforced. Why? Because the arbitration agreement stated that arbitration would be conducted pursuant to the rules of the American Arbitration Association, but the employer did not provide the employee with a copy of those rules or direction on where the employee could access those rules. Additionally, the agreement stated that the prevailing party could recover attorneys’ fees at arbitration. The court found that this provision exposed the employee to greater fee exposure than he would face if proceeding in court (because a court would simply apply the statutory language of the applicable discrimination statute, FEHA, which for the most part only permits a prevailing plaintiff to recover fees). The court refused to simply sever the offending fee shifting provision and instead invalidated the entire arbitration agreement, allowing the employee to proceed with his claims in court.
This is not the first California case to find unconscionable an agreement that incorporates rules published elsewhere without providing an employee a copy of those rules. However, this has not been a predominant, or even common, basis for invalidating arbitration agreements in California. The Mayers case serves to highlight that some California courts will look for any reason to invalidate a mandatory arbitration agreement. California employers should strive to draft their agreements as cautiously as possible to avoid any such ground for a court to invalidate the agreement.
State and federal lawmakers are growing increasingly concerned about how our economy is making it difficult for long term unemployed workers to get back into the workforce. As a result, there is a movement to make being unemployed a new protected class. With a larger than normal percentage of voters being unemployed, you can bet this will be popular with some politicians up for re-election in November.
California is one of a number of states where legislation has been introduced to protect unemployed workers and prohibit an employer from using a person's unemployed status at the time of applying for a job as a negative criteria in the hiring process. The California bill is AB 1450 and was introduced in January. In addition to the California bill, Congress has introduced HR 2501 in the House and S 1471, two bills that would provide similar protections on a nationwide basis.
Currently, most protected status suits deal with harassment and termination of the employment relationship. Hiring discrimination cases are relatively rare. However, if any of these bills pass, employers covered by them should expect a wave of new litigation by unemployed applicants applied for positions but were not hired. Employers will certainly have to alter their hiring practices and train those making the hiring decisions and doing the screenings, in order to ensure that they can defend against such suits.
These bills will be something to keep an eye on in the coming months. We will continue to keep you posted on this blog.
On March 2, the United States District Court for the District of Columbia issued a ruling upholding the NLRB’s employee rights poster. The ruling was issued in a lawsuit brought by the National Association of Manufacturers (NAM) to challenge the NLRB’s authority to mandate such a poster. In its ruling, the court held that the NLRB was within its authority to issue a rule requiring employers to post the employee rights notice. The court rejected NAM’s argument that the posting requirement violates employers’ free speech rights.
Although the court upheld the posting requirement, it did place some limits on the NLRB’s enforcement efforts. The court held that an employer’s failure to post the notice, in and of itself, may not be automatically deemed an unfair labor practice by the NLRB. However, an employer’s “knowing and willful” failure to post the notice may be considered as evidence supporting a finding of an unlawful motive on the part of the employer in a case alleging some other unfair labor practice by the employer.
The court also invalidated a portion of the NLRB rule providing that the statute of limitations would be tolled in unfair labor practice actions against employers who failed to post the notice. The court held that the NLRB’s effort to extend the clear six-month statute of limitations provided for in the NLRA exceeded the NLRB’s authority.
The court’s ruling in the case brought by NAM is the first ruling in one of several cases challenging the validity of the NLRB’s employee rights poster. Another ruling is expected in the near future in a lawsuit brought by the Chamber of Commerce in South Carolina. It may well be that the ruling in the NAM case will be appealed as well. Employers should stay tuned for further legal developments with respect to the notice. In the meantime, the current effective date for employer compliance is April 30, 2012. No court has halted or invalidated that posting deadline. As such, employers are advised to begin posting the employee rights notice effective April 30 barring contrary legal developments before that time. The poster is available on the NLRB's website here.
With the advantages inherent to arbitrating – rather than litigating – employment disputes, arbitration provisions between employer and employee have seen a sharp increase in recent years. There have also been some significant new court decisions out of the United States Supreme Court favoring enforceability of these agreements. Nonetheless, it remains true that California courts continue to scrutinize these agreements carefully and in many cases, still find them unconscionable and unenforceable. The recent case of Ajamian v. CantorCO2e is one such example.
In Ajamian, the employer and employee entered into an arbitration agreement providing that any and all disputes would be resolved by final and binding arbitration. In March 2010, Ajamian’s employment was terminated, and later that year she filed a complaint in civil court, asserting claims for sexual discrimination, sexual harassment, retaliation, and various wage-hour claims. Ajamian refused to arbitrate.
The first issue the court addressed was whether the parties’ agreement called for an arbitrator or a court to decide the preliminary issue of whether the arbitration agreement was enforceable. Under the Federal Arbitration Act, the enforceability of an agreement is ordinarily to be determined by the court, but the parties may agree in the arbitration agreement that the enforceability issue will be delegated to the arbitrator. To establish this exception, it must be shown by “clear and unmistakable” evidence that the parties intended to delegate the issue to the arbitrator. The relevant language of the agreement in this case read: “Any disputes, differences or controversies arising under this Agreement shall be settled and finally determined by arbitration.” The employer argued this language showed the parties intended that even the threshold issues of unconscionability would be decided by the arbitrator. The employee, on the other hand, argued the language encompassed only all substantive disputes, while the enforceability of the arbitration provision itself remained a matter for determination by a court. The court agreed with the employee that the language was not explicit enough to show that the parties expressly intended for an arbitrator to decide the issue of enforceability. As a result, the issue was left to the court to decide.
After determining the court was tasked to decide enforceability, it then turned to whether the agreement was sufficiently fair to Ajamian to allow the dispute to go to arbitration. First, the court found the non-negotiable, “take-it-or-leave-it” nature of the agreement amounted to some unfairness. Despite the fact that Ajamian had an attorney review the agreement on her behalf prior to her signing it, the court found that the agreement still was not a product of negotiation. Ajamian had no “realistic bargaining power,” and was required to sign the agreement to receive her promised compensation for work she had already performed. As such, the agreement was procedurally unconscionable. The court also found several of the agreement’s terms substantively unconscionable. The agreement limited Ajamian’s ability to recover certain damages, forced her to forfeit otherwise “unwaivable” California statutes, and compelled her to travel to New York from California to attend arbitration, thereby costing Ajamian thousands of dollars she otherwise would not have to spend. Most importantly, the agreement allowed the employer, but not the employee, to recover its attorneys’ fees as prevailing party. These factors, taken as a whole, led the court to hold that the arbitration agreement was unconscionable and unenforceable.
This case is a reminder that any arbitration provision intended to leave the issue of enforceability to an arbitrator must be explicit. Employers should also ensure that the substance of the agreement (e.g., not limiting employee’s recovery and not adding extra costs to employee) is sufficiently fair to the employee to pass muster.
February 27, 2012
Posted by Cal Labor Law in CDF News & Events
Please join us on March 15, 2012 for a unique opportunity to hear about the trial and appeal of the Duran v. U.S. Bank case directly from lead counsel. The Court of Appeal’s published decision in Duran issued only weeks ago, addressed, for the first time, the use of statistical sampling and representative testimony in a wage and hour misclassification class action trial on both liability and damages. The Duran decision will likely prove to be very helpful to many employers facing wage and hour class action litigation in California. This webinar is presented by CDF attorney Timothy Freudenberger, who was U.S. Bank’s lead trial counsel in the Duran matter.
In this webinar, we will review:
• The trial court’s trial management plan, and the role the experts played;
• How the trial was actually conducted using representative testimony and statistical sampling;
• The legal positions and defenses that ultimately persuaded the Court of Appeal to overturn the verdict and decertify the class; and
• The potential legal impact of the Duran decision on other class actions
We hope you will join us for this engaging and informative webinar March 15 from 9:00 a.m. to 10:00 a.m. PST.
To register for this event, click here:
Please Note: Immediately following the completion of your registration, you will be emailed a calendar entry. Click on this email and select "Accept". This email/calendar entry contains important information you will need the day of the webinar, including the link to join the meeting, along with the call-in information.
CDF is pleased to report its recent victory in Duran v. U.S. Bank, a seminal decision striking down the use of statistical sampling and representative testimony to establish liability and restitution in a class action trial involving claims of alleged misclassification and unpaid overtime. Reversing a $15 million judgment awarded to a class of business banking officers (BBOs), the court held that the trial court’s use of statistical sampling and representative testimony to extrapolate liability and restitution from a sample group of 21 witnesses to a class of 260 bankers violated U.S. Bank’s constitutional due process rights. The court held that this trial plan improperly prevented U.S. Bank from presenting relevant evidence to contest classwide liability and to challenge the claims of individual class members outside of the sample. The court also held the trial court erred in focusing on U.S. Bank’s policies and uniform exempt classification in maintaining class treatment. Because the validity of each class member’s exempt misclassification claim required individual analysis, class treatment was improper and unmanageable. As a result, the court, in addition to reversing the judgment, ordered that the class had to be decertified. This case is significant because it is the first known California appellate decision reviewing a trial verdict in an overtime misclassification case, where the trial court employed one of the purported “innovative procedural tools” (statistical sampling) to manage class action trials referenced by the California Supreme Court in Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 339 (2004). The Court stated that “while innovation is to be encouraged, the rights of the parties may not be sacrificed for the sake of expediency.”
This case was originally filed as a putative class action alleging claims of misclassification brought under various provisions of the California Labor Code, as well as conversion and unfair competition under Business & Professions Code § 17200 (the “UCL” claim). U.S. Bank claimed that the BBOs were properly classified under the administrative exemption, commissioned salesperson exemption, and outside sales exemption. In opposing class certification, U.S. Bank argued that individual issues predominated as shown by the declarations of over 70 putative class members, in addition to deposition testimony of the four prior named class representatives, who all stated under oath that they spent a majority of their time outside U.S. Bank premises, and were therefore properly classified as exempt. After certifying the class, the trial court granted Plaintiffs’ motion for summary adjudication as to the administrative and commissioned salesperson exemptions. Just months before trial, Plaintiffs dismissed their legal claims and proceeded to a bench trial only on the equitable UCL claim that was premised on the alleged Labor Code violations and U.S. Bank’s defense based on the outside salesperson exemption.
The “Fatally Flawed” Trial Plan Violated U.S. Bank’s Due Process Rights
Although the trial court requested briefing and proposals from both parties as to an appropriate trial management plan, it ultimately decided to implement a trial plan that was neither proposed by the parties nor endorsed by their experts. Over U.S. Bank’s objections, the trial court determined that it would take a random sample of 20 class members (drawn out of a “hat”) plus the two named plaintiffs to testify at trial to determine both classwide liability and damages. The trial court also selected 5 class members as “alternates” in case any of the 20 originally drawn class members were unavailable. After this random witness group (“RWG”) was selected, however, the trial court ordered a second opt-out notice to be sent to the class because Plaintiffs had chosen to dismiss their legal claims. U.S. Bank argued that any member of the RWG group that opted out after receiving the second opt-out notice should be required to provide deposition and trial testimony to maintain the integrity of the original sample and ensure statistical reliability of the extrapolation process. Four of the 20 class members (or 20%) of the RWG opted out, while only 5 of the remaining 250 (or 2%) absent class members opted out. Notwithstanding the disproportionately higher opt-out rate among the RWG, the trial court denied U.S. Bank’s motion to allow two of the RWG witnesses to opt back into the class. When those witnesses were later called to testify by U.S. Bank as to their percipient knowledge of other RWG members, they were precluded from testifying as to their own BBO experiences.
Consistent with its determination that the trial plan only allowed for testimony and evidentiary submissions regarding the RWG, the trial court steadfastly rejected U.S. Bank’s repeated attempts to introduce relevant evidence from absent class members outside of the RWG, including sworn deposition testimony and declarations from nearly one-third of the class (including that of the four prior named class representatives) indicating they spent a majority of their time outside of their offices and were therefore properly classified as exempt. At the conclusion of the liability phase, the trial court concluded that the two plaintiffs and all 19 class members in the RWG were misclassified (one RWG member failed to appear at trial and was then treated as an absent class member) and therefore extrapolated those liability findings to conclude that all 260 members of the class were misclassified. In Phase II of the trial, the trial court accepted Plaintiffs’ experts’ testimony that concluded, using the testimony provided by the RWG and the two named plaintiffs, at a 95% confidence level, that the class members worked an average of 11.87 hours of overtime per week, with a margin of error of 5.14 hours or 43.3%. This “average” hours of weekly overtime was then extrapolated to the remaining 239 absent class members.
The Court of Appeal found the lower court’s trial methodology to be both legally unprecedented and statistically unsound. The court was extremely troubled that U.S. Bank was “hobbled” in its ability to prove its affirmative defense not only as to individual absent class members but as to classwide liability because it was “prohibited from introducing evidence pertaining to any non-RWG members, evidence that arguably would have shown some class members were either properly classified or did not work overtime.” The trial court’s blind adherence to its trial plan sacrificed “fair and accessible justice” for convenience and efficiency. The court noted that neither state nor federal law supported the use of statistical sampling or representative evidence to determine liability in a misclassification case where time spent performing exempt duties may differ between employees. Experts from both sides agree that, statistically speaking, even if 21 out of the 21 testifying class members were found to be misclassified, up to 13% of the class could nonetheless be properly classified. Hence, there is no statistical basis to conclude that 100% of the class is misclassified based on a fact-finding process involving only a small sample of class members. The court explained that using statistics to determine classwide liability in a misclassification case is problematic because a certified class that included both injured and uninjured class members would necessarily require individual mini-trials to determine which class members fell in which category.
Significantly, the court stated that “due process principles require individualized inquiries where the applicability of an exemption turns on the specific circumstances of each employee, even in cases where the employer’s misclassification may be willful.” The court distinguished this case from Bell v. Farmers Insurance, 115 Cal.App.4th 715 (2004) (Bell III), where this same court had approved the use of statistical sampling to determine classwide damages. The trial court in Bell III had conducted an appropriate pilot study to determine an appropriate sample size and desired margin of error at the outset. Importantly, both parties’ experts largely agreed on the sampling methodology and proposed margin of error. In contrast, the trial court in Duran committed a number of errors in its unscientific and inconsistent use of statistics in its trial plan, including arbitrarily using a 20-member sample group without any surveys or pilot studies, permitting selection bias by allowing randomly selected members to opt out and for including the two non-randomly selected class representatives in its sample, arbitrarily using a mid-point to determine average work hours for class members who provided a range of hours worked, and failing to extrapolate results unfavorable to Plaintiffs (such as a RWG member signing a release that prevented him from personal recovery, or that a RWG member was properly classified for two weeks of his employment). These and other errors resulted in a statistically invalid and inaccurate judgment, as evidenced by the 43.3% margin of error associated with the 11.87 “average” overtime hours worked. This meant that the overtime hours worked by class members could range anywhere from 6.73 hours to 17 hours per week. Using the low end of this margin of error meant that the $15 million judgment awarded to the class could actually be half as much and still fall within the undisputed margin of error. While the court again declined to issue a bright-line rule as to an unconstitutional level of inaccuracy, it noted its consistent rejection of results containing a large margin of error, such as 32% in Bell III’s calculation of double-time damages, and 43.3% in Duran.
In concluding that the multitude of errors committed by the trial court resulted in serious due process violations, the Court of Appeal found persuasive the reasoning and analysis laid out in the recent U.S. Supreme Court opinion in Wal-Mart Stores v. Dukes, which had rejected a similar “trial by formula” theory advanced by plaintiffs to determine liability and damages from a sample group to the class as a whole in a gender discrimination class action. The Court’s parallel reasoning and analysis of Dukes dispels any contention that the holding in Dukes would be limited to federal cases or discrimination claims.
Individual Analysis Required to Determine Exempt Classification Compels Decertification
The court acknowledged that Sav-On held there was not a requirement that “courts assess an employer’s affirmative exemption defense against every class member’s claim before certifying an overtime class action,” but concluded this passage does not apply to the trial phase of a class action lawsuit. In so doing, the Duran court addressed the problem frequently ignored by many trial courts that certified class actions with no indication as to how a class action trial would be properly managed that comported with a defendant’s due process rights. The court concluded that the evidence at trial showed that because BBOs were not monitored or tracked in any way, the “only way to determine with certainty if an individual BBO spent more time inside or outside the office would be to question him or her individually.” The court held that the trial court erred in failing to grant U.S. Bank’s second motion to decertify at the close of the liability phase of trial because it erroneously relied on U.S. Bank’s policies (primarily its uniform classification of BBOs as exempt) and ignored variances in admissible evidence that “cast serious doubts as to the prevalence of common issues affecting liability.”
This case is a welcome development to California employers that have been besieged with wage-and-hour class actions in the last decade. It calls into question the viability of using statistical sampling and representative testimony in misclassification cases where a proper exemption inquiry turns on an individual analysis. It also forces trial courts to carefully consider trial management issues and due process arguments that have been largely ignored at the class certification stage. The entirety of the Duran opinion can be read here.
CDF represented U.S. Bank during the entire pendency of the case at the trial court level and on appeal.
The California Supreme Court has scheduled oral argument in Kirby v. Immoos for March 6, 2012 at 9:00 a.m. in San Francisco. This case involves the important issue of whether employers may recover their attorneys' fees after prevailing in a case alleging denial of meal and rest breaks. The plaintiffs in Kirby had brought a lawsuit alleging unpaid overtime wages under Labor Code section 1194 as well as claims for missed meal and rest breaks under Labor Code section 226.7. The employer prevailed and sought to recover its attorneys' fees under Labor Code section 218.5, which on its face is a bilateral fee-shifting provision that allows a prevailing party to recover its fees in wage cases, except in certain circumstances. One of the circumstances excepted from section 218.5 is claims for unpaid overtime covered by section 1194. Section 1194 has its own fee-shifting provision and provides that only a prevailing plaintiff may recover fees.
The lower court in Kirby held that based on these two Labor Code sections, the prevailing employer was entitled to its fees incurred in defending the meal and rest break claims, but not fees incurred in defending the overtime claim. The Supreme Court granted review and is expected to decide whether a prevailing employer may properly recover fees for meal and rest break violations under section 218.5, and whether fees are precluded if the meal and rest break claims are brought in the same lawsuit as claims for overtime governed by section 1194. Stay tuned for the outcome of this case.