Storm's California Employment Law

Hernandez v. Hillside, Inc.

Hat tip to Sheppard Mullin.

You can read their more detailed analysis.  I would just add that the technical holding in the Saunders case cited by the Hernandez court is not

As a matter of law, a claim of intrusion cannot fail merely because the events or conversations which the defendant intruded upon were not completely private from all other eyes and ears

as the court states.

The Saunders court merely held that an employee had an expectation of privacy at his or her workplace from non-employer third parties.  It did not disturb that aspect of the lower court ruling which had flatly held that there was no expectation of privacy in the workplace from employers.  And while no published California case may have held that public offices contained little or no expectation of privacy from employers, that is the majority rule in the United States.

This case would appear to overrule that technical holding.

While plaintiffs did not enjoy complete and absolute privacy in their office, it was reasonable for them to expect images of them in their office with the door closed would not be transmitted to another portion of the building.

(2006 Cal. App. LEXIS 1390 at 24.)

It appears, then, that workplace surveillance in California will be treated with a very skeptical eye.  While the ruling here is overturning a summary judgment, chances are that trial courts will see this merely as a "pro-privacy" decision, much in the same way that they saw Sav-On as a pro-certification case.

Indeed, this opinion implies that such surveillance must be narrowly tailored to fit a legitimate business interest, to borrow language from Constitutional law:

Defendants placed a motion-activated camera in a private office shared by plaintiffs, and left it functioning for no legitimate reason while plaintiffs were present. Nor did defendants alert plaintiffs to the presence of the camera, so they could modify their behavior to protect their own privacy. Under these circumstances, defendants have not established as a matter of law that their conduct was not highly offensive.

(Ibid.) (Emphasis original.)

Of course, there is probably not much point in surveilling employees—or anyone—who are on notice that their conduct is being watched. It's a self-defeating cycle. Now keep in mind, these are offices that anyone could walk into at any time.  It appears to be the video-taping aspect alone that triggers potential tort liability here.

I often meta-blawg on the "shock and awe" tactics used by many law bloggers, but in this case, it does appear that any workplace surveillance (at least in non-customer/public areas?) should not be videotaped.

Koehl v. Verio, Inc.

The Court of Appeal held that unearned commissions were not wages, and, therefore were recoverable subject to a written agreement that did not reduce the base rate of pay.

While not earth-shattering, this opinion provides some additional color to Section 34 of the DLSE Enforcement Policies Manual.

Gov. Signs Minimum Wage Law

It's official—Gov. signs minimum wage law.  The minimum wage will increase to $7.50 on January 1, 2007, and to $8.00 on January 1, 2008.  That means your "exempt" employees must be earning $31,200.00 per year on January 1, 2007, and $33,280.00 on January 1, 2008. 

Apparently, however, the fight over the minimum wage is not over. (Spanish - La Opinion) Speaker Nunez wants to see  a $12 /hr. "living wage" and there is still strong support for inflation-indexed increases.  Interesting statistic: 53% of minimum wage earners are Latino, and 1 in 8 Latinos earns the minimum wage.  Those statistics alone should mean that this will be an ongoing issue.

A Close Look at Dunbar

I spent the morning reviewing the case file in the Dunbar matter.  I looked at both side's briefing, much of the documentary evidence sumbitted in support (in total it approaches 1000 pages--I looked at key pieces), the trial court's order, and took a new look at the Court of Appeal's opinion in light of that.

I was impressed by the quality of the Defendant's work.  They were thorough, to put it lightly.  They dissected the managers' job duties and clearly showed how they varied from place to place.  They also blew some pretty large holes in the Plaintiff's categorization of the job duties. 

In sum, the Defendants were able to frame the issue their way, and took the judge with them.  Having said all of that, I personally have used just about every argument they tried (admittedly, without nearly as much support in the papers) and had my opposition overruled.  I don't think there is anything about this case that changed the law.

Sav-On was, and I believe always has been, about trial court discretion.  To the extent that judges saw it as merely a "pro-certification" decision, there is a chance that Dunbar will cool that off, and reassert the narrower nature of it.  Anyway, we'll see what subsequent events hold in this case.

If any of my readers out there see a difference between this and other recent class-action certification cases, please let me know. It's quite possible I missed it.