It is common for plaintiffs in employee-related trade secrets and unfair competition cases to allege something of a grab bag of statutory and common law theories. Often, claims of misappropriation of trade secrets, intentional interference with economic advantage, breach of duty, and common law unfair competition will be based on the same set of facts
LAW ALERT: California Court Of Appeal Upholds Salary Agreements That Include Straight Time and Overtime Payments
Disagreeing with the California Labor Commission, a California Court of Appeal upheld the trial court’s decision that explicit mutual wage agreements which include straight time and overtime components are enforceable under California law. The Court affirmed that Labor Code section 515(d) does not outlaw explicit mutual wage agreements of this kind. In Arechiga v. Dolores Press, Inc., a janitor sued his former employer for overtime wages. The trial court dismissed the claim, finding that an explicit mutual wage agreement existed between the employee and the employer under which the employee’s fixed salary of $880 lawfully compensated him for both his regular and overtime work based on a regular hourly wage of $11.14 and an overtime wage of $16.71. Following his termination, Arechiga claimed that Labor Code section 515 governed his employment agreement. Citing subdivision (d) of the statute, Arechiga asserted that the Court must find that his salary of $880 compensated him only for 40 regular hours per week thus making his regular rate of pay $22 per hour and his overtime rate $33 per hour. He then argued that his employer owed him overtime at $33 per hour for his regularly scheduled 26 hours of overtime worked each week. Arechiga pointed to the express language of section 515(d) to support his argument. Subdivision (d) states: “For the purpose of computing the overtime rate of compensation required to be paid to the non-exempt full-time salaried employee, the employee’s regular hourly rate shall be 1/40th of the employee’s weekly salary.”
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LAW ALERT: Employee Email Communications with Counsel Not Privileged According to Recent Third District Court of Appeals Decision
In a decision that has already stirred substantial controversy, the California Court of Appeal recently held that an employee’s communications to her attorney are not privileged because they took place on her employer’s email system. Privileged communications cannot be discovered or used as evidence in a lawsuit. Continue Reading LAW ALERT: Employee Email Communications with Counsel Not Privileged According to Recent Third District Court of Appeals Decision
“Same Actor” Defense
I was recently asked something of a “desert island” question. Instead of being asked what 10 records or 10 movies I would take to a desert island, I was asked, “If an employer could only do one thing to reduce its exposure to employment discrimination liability, what should it do?” Shooting from the hip, I said, “Whenever you can, have the same actor who hires an employee be the person who disciplines or terminates them.” This practice or strategy doesn’t immunize an employer against discrimination claims, but: “Where the same actor is responsible for both the hiring and firing of a discrimination plaintiff, and both actions occur within a short period of time, a strong inference arises that there was no discriminatory motive.” The rationale underlying this doctrine is that from the standpoint of the alleged discriminator, it “hardly makes sense to hire workers from a group one dislikes (thereby incurring the psychological cost of associating with them), only to fire them once they are on the job.” (Horn v. Cushman & Wakefield Western, Inc.) This concept has also been applied where the alleged discriminator promoted the plaintiff before taking later adverse action against him or her.
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Weintraub Lawyers Win Appeal Before the Ninth Circuit re: Title VII Sex Discrimination and Retaliation/Subject Matter Jurisdiction re Attorneys’ Fees
On May 5, 2010, the Ninth Circuit Court of Appeal issued an Opinion, to be published, in the case titled Porter v. Winter (9th Cir. 07-171250). Attorney Charles L. Post prepared and submitted the briefs and attorney Lizbeth V. West appeared and argued before the Ninth Circuit on behalf of Appellant, Ronald Porter.
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