An employee at Cal State San Diego made a false report against a co-worker, and this ended up being protected activity for which he could not be disciplined. Ohton v. California State University of San Diego (2010) 180 Cal.App.4th 1402.
Here's what happened: a strength coach complained about the head football coach being drunk at an away game. The school investigated and determined the complaint was false. The strength coach was removed from football functions, although he was allowed to continue coaching other sports. He alleged retaliation in employment under the California Whistleblower Protection Act Gov't Code 8547.12(c) because the college did not "adequately address" his complaint of being retaliated against.
What was so inadequate in the college's addressing of the complaint? It determined the employee's original complaint against the head coach was based on hearsay. The Court of Appeals held that it's OK for an employee to base a complaint on hearsay; it still has to be taken seriously by the college. Because the college did not find that the strength coach was knowingly dishonest in making the drunkenness allegation, the employee was entitled to seek whistleblower remedies.
Wednesday, February 24, 2010
Tuesday, February 23, 2010
Employees Have a Right to Smoke (But Not At Work)
California Labor Code 96(k) establishes that an employee cannot be discharged for non-work-related lawful conduct. Section 96 states, "The Labor Commissioner and his or her deputies andrepresentatives authorized by him or her in writing shall, upon the filing of a claim therefor by an employee, . . . take assignments of:
(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises."
Employers often seek to limit an employee's tobacco use. The reasons are that tobacco smoke saturates the employee's body and clothing, permeating the surroundings and offending customers and co-workers.
Smoking is lawful. An employee can't be discharged for legal activities. The employer planning to terminate a smoker will have to have a work-related reason. For instance, the off-site smoking is affecting the workplace due to odor.
Many employers have a dress and grooming policy. As long as the policy does not violate religious beliefs or discriminate on the basis of national origin, or impinge on the employee's gender identity, these policies are generally legal. E.g. California Gov't Code 12949; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 (grooming policy must not be gender-based without bona fide reason); Kelley v. Johnson (1976) 425 U.S. 238 (police department may prohibit long hiar, mustache and sideburns); Jespersen v. Harrah's Operating Co. (9th Cir. 2006) 444 F.3d 1104 (female bartenders could be required to wear makeup to work where males were required to have short hair). A grooming policy requiring clean personal hygiene could be violated if the tobacco odor permeates the workplace.
If no such policy exists, the employer could give the employee a verbal warning and opportunity to clean up her act. If she still insists on coming to work smelling like an ashtray, she can be terminated for violating company policy.
(k) Claims for loss of wages as the result of demotion, suspension, or discharge from employment for lawful conduct occurring during nonworking hours away from the employer's premises."
Employers often seek to limit an employee's tobacco use. The reasons are that tobacco smoke saturates the employee's body and clothing, permeating the surroundings and offending customers and co-workers.
Smoking is lawful. An employee can't be discharged for legal activities. The employer planning to terminate a smoker will have to have a work-related reason. For instance, the off-site smoking is affecting the workplace due to odor.
Many employers have a dress and grooming policy. As long as the policy does not violate religious beliefs or discriminate on the basis of national origin, or impinge on the employee's gender identity, these policies are generally legal. E.g. California Gov't Code 12949; Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 (grooming policy must not be gender-based without bona fide reason); Kelley v. Johnson (1976) 425 U.S. 238 (police department may prohibit long hiar, mustache and sideburns); Jespersen v. Harrah's Operating Co. (9th Cir. 2006) 444 F.3d 1104 (female bartenders could be required to wear makeup to work where males were required to have short hair). A grooming policy requiring clean personal hygiene could be violated if the tobacco odor permeates the workplace.
If no such policy exists, the employer could give the employee a verbal warning and opportunity to clean up her act. If she still insists on coming to work smelling like an ashtray, she can be terminated for violating company policy.
Thursday, September 3, 2009
In Re Bose: Good News for Trademark Owners
A trademark application whose Statement of Use incorrectly lists mark-bearing goods by overstating the types of goods being sold in commerce can no longer be cancelled for fraud unless there is substantial evidence that the applicant "intended to deceive the PTO". In Re Bose Corp., --- F.3d ----, 2009 WL 2709312 (C.A.Fed.8/31/2009). No longer will simple negligence be enough to cancel an entire registration. No longer will the fact that an applicant "should have known" certain described goods were not being distributed in commerce be enough to invalidate the entire registration. Now, there must be a showing that the applicant wilfully intended to deceive the PTO.
In Bose, the corporation's general counsel signed a Section 8/9 renewal claiming the "Wave" mark was still in use in commerce on various goods, including audio tape recorders and players. Counsel knew that Bose no longer sold tape players, but believed that, because some warranty repairs were ongoing and the goods would be shipped back to the consumers after repair (thus entering "commerce), it would be appropriate to claim "use in commerce". Bose subsequently got into a trademark dispute with Hexawave, Inc., and Hexawave attacked the trademark. The Trademark Trial and Appeal Board found fraud and cancelled the trademark. The Federal Circuit this week overturned that decision.
We can expect cases in the future that solidify and expand this decision. For instance, while an applicant who mistakenly overstates the array of goods being sold will not have grounds to claim protection if a competitor begins distributing goods from the overstated category, competing within the arena of actually-produced goods will be scrutinized for trademark infringement. And the loophole that cancelled registrations where there was an overstatement of the array of goods will no longer exist.
In Bose, the corporation's general counsel signed a Section 8/9 renewal claiming the "Wave" mark was still in use in commerce on various goods, including audio tape recorders and players. Counsel knew that Bose no longer sold tape players, but believed that, because some warranty repairs were ongoing and the goods would be shipped back to the consumers after repair (thus entering "commerce), it would be appropriate to claim "use in commerce". Bose subsequently got into a trademark dispute with Hexawave, Inc., and Hexawave attacked the trademark. The Trademark Trial and Appeal Board found fraud and cancelled the trademark. The Federal Circuit this week overturned that decision.
We can expect cases in the future that solidify and expand this decision. For instance, while an applicant who mistakenly overstates the array of goods being sold will not have grounds to claim protection if a competitor begins distributing goods from the overstated category, competing within the arena of actually-produced goods will be scrutinized for trademark infringement. And the loophole that cancelled registrations where there was an overstatement of the array of goods will no longer exist.
Wednesday, July 29, 2009
Wage & Hour: Brinker and Brinkley Briefed
Employment lawyers trying to figure out how to abide by California lunch break laws are on pins and needles waiting for the state Supreme Court's decision in Brinker Restaurant v. Superior Court (Hohnbaum) (2008) 165 C.A.4th 25 and Brinkley v. Public Storage (2008) 167 C.A.4th 1278. The case is fully briefed. Progress can be monitored at http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=1898028
On review are holdings that the employer only has to provide meal breaks, and does not have to ensure that they are taken. Another issue that may be decided is when exactly does the break have to occur.
Here's a recap of the law as it stands until the Supremes tell us different: According to California Labor Code Section 512, hourly employees must be given their lunch break before the end of their fifth hour of work if they are going to work longer than six hours. How do we know the break must occur before the end of the fifth hour? The California Department of Labor Standards Enforcement said so. http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm..
On review are holdings that the employer only has to provide meal breaks, and does not have to ensure that they are taken. Another issue that may be decided is when exactly does the break have to occur.
Here's a recap of the law as it stands until the Supremes tell us different: According to California Labor Code Section 512, hourly employees must be given their lunch break before the end of their fifth hour of work if they are going to work longer than six hours. How do we know the break must occur before the end of the fifth hour? The California Department of Labor Standards Enforcement said so. http://www.dir.ca.gov/dlse/FAQ_MealPeriods.htm..
Tuesday, July 28, 2009
Make a Federal Case Out of It
When I was young, when we kids would start to get worked up about some childhood dispute between us siblings, my dad would say, "Don't make a federal case out of it!" So I grew up believing that only major disputes should be filed in federal court. This isn't actually the rule, however, but there is still some wisdom in that admonishment. Don't make a federal case out of something unless you are ready for some serious rigamarole--defined at http://dictionary.reference.com/browse/rigamarole as "an elaborate or complicated procedure".
Take, for instance, the Central District of California's local rules on e-filing. Once a complaint is filed, all ensuing documents must be filed electronically (and many judges require a paper copy delivered to the tray outside of chambers within 24 hours thereafter). However, if your answer includes a counterclaim, that is considered a "case-initiating document" which must be filed traditionally.
But wait, there's more! You cannot make this traditional appearance at the clerk's filing window with your case-initiating document unless you have first e-filed a "Notice of Manual Filing". At least the clerk will probably be kind enough to tell your messenger "wait here while I call your attorney" and proceed to call and inform you that you need to immediately e-file the Notice of Manual Filing which she is holding in her hand, as she is ready to kick it (and your case-initiating document as well) if you are out to lunch.
So that's a new twist: you can't traditionally file a counterclaim until you e-file a Notice of Manual Filing.
Take, for instance, the Central District of California's local rules on e-filing. Once a complaint is filed, all ensuing documents must be filed electronically (and many judges require a paper copy delivered to the tray outside of chambers within 24 hours thereafter). However, if your answer includes a counterclaim, that is considered a "case-initiating document" which must be filed traditionally.
But wait, there's more! You cannot make this traditional appearance at the clerk's filing window with your case-initiating document unless you have first e-filed a "Notice of Manual Filing". At least the clerk will probably be kind enough to tell your messenger "wait here while I call your attorney" and proceed to call and inform you that you need to immediately e-file the Notice of Manual Filing which she is holding in her hand, as she is ready to kick it (and your case-initiating document as well) if you are out to lunch.
So that's a new twist: you can't traditionally file a counterclaim until you e-file a Notice of Manual Filing.
Counting Paid Days Off
Many California employers wonder whether they should convert their current sick leave policy to one that allows “personal time off”, in which employees are given leave time but do not have to show it is needed for illness. Perhaps the employer plans to continue offering separate “vacation” time, and simply wishes to eliminate the need for employees to claim illness in order to take personal time. Employers are correct to wonder whether this would complicate their company’s leave policy.
If an employer offers leave time that is “unconditioned”, where the employee is not required to prove illness, then the leave time will accrue as deferred wages and will have to be paid out as severance upon termination of employment.
According to the Division of Labor Standards Enforcement, “personal time off” is given without condition, and thus, accrues and vests. DLSE 51.6.18 (personal days off given “without condition” cannot be forfeited and must be paid out as severance). Unconditioned leave (traditionally called “vacation”) must be paid out as severance if the employment terminates with unused leave. California Labor Code § 227.3 (employer policy shall not provide for forfeiture of vested vacation time upon termination) and Suastez v. Plastic Dress-Up Co. (1982) 31 C.3d 774 (paid vacation vests as deferred wages for services rendered).
An employer wishing to cap the amount of vacation time (or unconditioned leave) that accrues must explicitly state the existence of the cap in its policies. If it does, then an employee cannot store up over the years multiple weeks’ worth of pay to be deferred until severance. See Boothby v. Atlas Mechanical, Inc. (1992) 6 CA4th 1595 (cap permitted if stated in policies) and DLSE Manual 15.1.4. So, while there is no “use or lose” limit on vacation time, it is permissible to “cap” accrual until the employee exhausts all leave in the bank.
If an employer offers leave time that is “unconditioned”, where the employee is not required to prove illness, then the leave time will accrue as deferred wages and will have to be paid out as severance upon termination of employment.
According to the Division of Labor Standards Enforcement, “personal time off” is given without condition, and thus, accrues and vests. DLSE 51.6.18 (personal days off given “without condition” cannot be forfeited and must be paid out as severance). Unconditioned leave (traditionally called “vacation”) must be paid out as severance if the employment terminates with unused leave. California Labor Code § 227.3 (employer policy shall not provide for forfeiture of vested vacation time upon termination) and Suastez v. Plastic Dress-Up Co. (1982) 31 C.3d 774 (paid vacation vests as deferred wages for services rendered).
An employer wishing to cap the amount of vacation time (or unconditioned leave) that accrues must explicitly state the existence of the cap in its policies. If it does, then an employee cannot store up over the years multiple weeks’ worth of pay to be deferred until severance. See Boothby v. Atlas Mechanical, Inc. (1992) 6 CA4th 1595 (cap permitted if stated in policies) and DLSE Manual 15.1.4. So, while there is no “use or lose” limit on vacation time, it is permissible to “cap” accrual until the employee exhausts all leave in the bank.
Inventing at Start-Up Ventures
When an employee learns enough on the job to invent a better widget, employers have many ways to make sure the invention belongs to the employer, and to prevent the employee from giving it to a competitor. This is a hazard in start-up companies, where creative employees may get the idea that they don’t need corporate help and can make a profit on their invention. Or they may get “poached” by competitors, either those that are already established in the market or other start-ups. A confidentiality agreement will define the duties of everyone involved.
The confidentiality agreement serves two functions: deterrence and compensation. Employees will be less likely to jump ship to a competitor if they understand they are subject to restrictions. And, in the worst case scenario, if the employee takes an invention to a competitor, a lawsuit can include the employee as well as the competitor.
Employers can also claim ownership of the invention in other ways, such as an by having an employment agreement with a California Labor Code § 2870 provision. Even without an employment agreement, the provisions of Labor Code § 2860 establish employer ownership over the invention. This law states that “Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment.”
To some extent, the invention might be a trade secret protected by California Civil Code § 3426 et seq., again owned by the employer. This law establishes and preserves a code of commercial ethics. Taking the invention to a competitor is only permitted if the employee discovered it 1) by independent invention, 2) by reverse engineering an item purchased on the open market, 3) under a license from the owner of the trade secret, 4) by observation of the item in public, or 5) by obtaining the trade secret from published literature.
The “shop right” rule in patent law establishes employer ownership in an invention created on company time using company resources. On the other hand, the employee who independently develops a new invention or product outside of the scope of his or her job duties does not have to give his or her employer any royalty. This is true even if the nature of the employment may have given the employee the chance to conceive the idea, or improved the employee’s skills, scientific knowledge, and ideas.
Start-ups can protect their products by requiring a good confidentiality agreement from their workers, and making it clear that legal consequences will befall those who violate the terms.
The confidentiality agreement serves two functions: deterrence and compensation. Employees will be less likely to jump ship to a competitor if they understand they are subject to restrictions. And, in the worst case scenario, if the employee takes an invention to a competitor, a lawsuit can include the employee as well as the competitor.
Employers can also claim ownership of the invention in other ways, such as an by having an employment agreement with a California Labor Code § 2870 provision. Even without an employment agreement, the provisions of Labor Code § 2860 establish employer ownership over the invention. This law states that “Everything which an employee acquires by virtue of his employment, except the compensation which is due to him from his employer, belongs to the employer, whether acquired lawfully or unlawfully, or during or after the expiration of the term of his employment.”
To some extent, the invention might be a trade secret protected by California Civil Code § 3426 et seq., again owned by the employer. This law establishes and preserves a code of commercial ethics. Taking the invention to a competitor is only permitted if the employee discovered it 1) by independent invention, 2) by reverse engineering an item purchased on the open market, 3) under a license from the owner of the trade secret, 4) by observation of the item in public, or 5) by obtaining the trade secret from published literature.
The “shop right” rule in patent law establishes employer ownership in an invention created on company time using company resources. On the other hand, the employee who independently develops a new invention or product outside of the scope of his or her job duties does not have to give his or her employer any royalty. This is true even if the nature of the employment may have given the employee the chance to conceive the idea, or improved the employee’s skills, scientific knowledge, and ideas.
Start-ups can protect their products by requiring a good confidentiality agreement from their workers, and making it clear that legal consequences will befall those who violate the terms.
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