The talk around the Internet these days is all about how times are changing and how someone actually found a use for Twitter.  Technology has already changed the legal profession, but we have just barely taken full advantage of the gains that the legal profession can obtain.  I believe we are on the cusp of a major revolution in the legal field, and here are my predictions about how technology will change the legal profession within the next ten years:

Courts

  • New complaints will be published on the Internet, and companies (and individuals) can establish RSS feeds to allow them if they have been sued.
  • Google will index all case law.  This will directly compete with LexisNexis and Westlaw, allowing attorneys to conduct research at a fraction of the costs charged by these two companies. People will post comments about the opinions within the opinions themselves on the Internet. I am sure this would be more helpful than Westlaw’s Keycite.
  • Parties will be able to serve papers via email or through the Internet.  Sound far fetched?  A court in Australlia recently allowed a party to perform substitute service via Facebook.  Service by email is probably more secure than traditional mail anyway.
  • Attorneys will make routine court appearances via the Internet.
  • Voice recognition software will instantaneously transcribe court proceedings and depositions. This would eliminate a huge litigation cost – court reporters. I have nothing against court reporters, but they need to change their business model just like the music industry.
  • Attorneys will utilize technology in trials to make multi-media presentations to keep jurors’ attention and more persuasive cases for their clients. Trials, however, will not be conducted remotely over the Internet – attorneys need to be in the same room when presenting to the jurors.
  • The court system will become a paperless system. Parties will be required to file documents electronically. Courts will issue orders via email or posting on the Internet (attorneys will be able to subscribe via RSS feeds). Courts will not issue a single piece of paper, nor will they store a single piece of paper – saving a huge amount of money in terms of storage and labor in maintaining the files.  

Lawyers

  • Law firms will also move to paperless offices. It is necessary that the courts make this move first to give the lawyers opportunities to file documents electronically.
  • Law firms will make files available on-line for clients.
  • Lawyers will conduct webinars to train clients.
  • Small firms with specialized attorneys will come to dominate the legal field. Small firms can collaborate through the internet, and have equal (if not more) resources than large law firms. Large law firms are simply a group of various attorneys with different specializations using the same letterhead – and carrying a lot of overhead.

Clients

  • Will demand that their attorneys have a blog (or the newest way of publishing content on the Internet) in order to truly see that the lawyer understands the particular area of law the case involves and to see how the lawyer thinks.
  • Clients will demand that their lawyers understand how to use the internet to conduct background research on the opposition.
  • Clients will demand that their lawyers are utilizing technology to provide legal services more efficiently.

UPDATE:  The Complex Litigator just blogged about Alameda Court streaming a live feed for a jury trial in a complex personal injury case.  The case will be available through www.courtroomlive.com, and of course will be indexed for viewing at any time.  This leads me to another bullet point under how lawyers could use technology to improve their litigation skills: to review and improve their courtroom skills after a trial. 

 

Today, the California Supreme Court granted reivew of Brinkley v. Public Storage, Inc.:

BRINKLEY v. PUBLIC STORAGE INC.
Case: S168806, Supreme Court of California

Date (YYYY-MM-DD): 2009-01-14
Event Description: Review granted/briefing deferred (8.512(d)(2) civil case)
Notes:
The petition for review is GRANTED. Further action in this matter is deferred pending consideration and disposition of a related issue in Brinker Restaurant Corp. v. Superior Court, S166350 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court.

The lower appellate court in Brinkley basically had the same holding as the lower court in Brinker Restaurant Corp. v. Superior Court, that employers need to only provide, not ensure, employees with their 30-minute meal break under California law.  The California Supreme Court granted review of Brinker, which meant that employers could not rely upon the very helpful ruling.  Then Brinkley was decided shoretly thereafter by another appellate court, which still allowed employers to argue that they only need to provide meal breaks.  But because of this recent action by the Court, the standard will finally be clarified by the California Supreme Court. 

It is likely to take at least one year for the Suprme Court to provide a ruling in Brinker.

In Ghazaryan v. Diva Limousine, LTD, the appellate court reversed the trial court’s denial of plaintiff’s class certification motion and remanded the case with instructions that the trial court certify the class action.  The case was brought by a limousine driver who filed a wage and hour class action against Diva Limousine, LTD. The main issue in the case was Diva’s policy of paying its drivers an hourly rate for assigned trips but failing to pay for on-call time between assignments. This on-call time is referred to as “gap time.”

Background Facts Of Limousine Drivers Time Working

The drivers were notified about their first few driving assignments before their shifted started. The court noticed that about 75% of the drivers were allowed to take Diva cars home and use the cars to drive to their first assignment. After these first few assignments were completed, the drivers received additional assignments from dispatch given the drivers’ location, availability and fairness among the drivers. The drivers could not predict the amount of gap time during any given day.

Diva established policies in its “Chauffeur’s Handbook.” Among the policies, Diva did not allow drivers to use the cars for personal use, drivers were required to stay near the vehicle, and to remain in uniform. The drivers were required to use the gap time to take their meal and rest breaks. However, the breaks could be interrupted dispatched to an assignment. Diva tracked the vehicles using GPS systems.

The plaintiff, Ghazaryan filed his lawsuit alleging Diva by its practice of paying drivers by the job, not by the hour, had failed to pay earned wages and overtime or to provide required rest breaks and meal periods in violation of multiple provisions of the Labor Code and regulations.

Class Certification Issues

Diva opposed class certification arguing that the difficulties in identifying eligible members of the class and assessing the validity of Diva’s compensation policy for different classification of drivers.  Diva also argued that the drivers may or may not have used their gap time for personal pursuits, adding to the individualized inquiry necessary in this case.  

Diva had several different categories of drivers assigned different driving responsibilities (including organ transplant drivers). Diva that some drivers were paid for gap-time, and some were not paid for this time.

The trial court denied plaintiff’s motion for class certification. In explaining the lower court’s error, the appellate court explained:

The trial court is, of course, correct, under well-established Supreme Court authority, “The certification question is ‘essentially a procedural one that does not ask whether an action is legally or factually meritorious.’” (Sav-On Drug Stores, supra, 34 Cal.4th at p. 326.) But the trial court fundamentally misconceived the import of the rule against evaluating the merits of the plaintiff’s claims in deciding whether class treatment is appropriate. Rather than denying certification because it cannot reach the merits, as the court did here, the trial court must evaluate whether the theory of recovery advanced by the plaintiff is likely to prove amenable to class treatment: “As the focus in a certification dispute is on what type of questions common or individual are likely to arise in the action, rather than on the merits of the case [citations], in determining whether there is substantial evidence to support a trial court’s certification order, [the reviewing court] consider[s] whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.”

Ascertainability and Numerosity

The appellate court held that the Plaintiff’s proposed class was ascertainable and numerous enough to be certified as a class action. The court explained that the class could be identified by Diva’s employment records and that class members “are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” Diva argued that differences in how the drivers were paid makes the class unascertainable. The court disagreed:

Yet the existence of these separate assignments in no way renders Ghazaryan’s proposed class unascertainable. If some drivers worked exclusively in one of these categories, they can simply be excluded from recovery if liability is ultimately found. Alternatively, the class can be modified to specify only those drivers who were not paid for their on-call or gap time. This modification may not even be necessary if, as we suspect, few Diva drivers fall exclusively into a single category.

Based on this, and the fact that there were approximately 170 current and former drivers who worked for Diva, the appellate court held that the class is ascertainable and numerous enough to proceed as a class action.

Community of Interest

The court found Diva’s policies about how drivers could use the gap-time applied to the drivers uniformly. The requirements, for example, that drivers remain with the vehicles, must take new dispatch assignment, not use the vehicle for personal purposes, and remain in uniform applied to all drivers equally. The court noted that "the common legal question remains the overall impact of Diva’s policies on its drivers, not whether any one driver, through the incidental convenience of having a home or gym nearby to spend his or her gap time, successfully finds a way to utilize that time for his or her own purposes."

Superiority

The court also held that it did not see any advantage to not allowing the case to proceed as a class action and voiced concerns that employees may not be able to find adequate representation if required to pursue their own individual claims.  Therefore, plaintiff met the superiority requirement to proceed as a class action. 

Just approved more members to the California HR Network group in Linkedin.  There are approximately 100 members currently. 

If you are an HR professional with a need to keep current with California employment law, drop me an email to request to join the group, or request to join through Linkedin by visiting here. 

Lilly Ledbetter Fair Pay Act:

The Lilly Ledbetter Fair Pay Act is a response to a 2007 Supreme Court decision that made it more difficult to sue over past pay discrimination, and prevented Ledbetter from filing an employment discrimination claim. The WSJ notes this is, in effect, and earmark for the plaintiff’s trial lawyers:

[The Supreme Court’s] ruling put to rest Ms. Ledbetter’s creative theory that decisions made decades ago by a former boss affected her pay all the way to retirement, so that each paycheck was a new discriminatory act and thus fell within the statute of limitations. Yet that is exactly the theory Congress would now revive with the Ledbetter bill. There would no longer be time limits on such discrimination claims. They could be brought long after evidence had disappeared or witnesses had died — as was the case with Ms. Ledbetter’s former boss.

For the tort bar, this is pure gold. It would create a new legal business in digging up ancient workplace grievances. . .

The Paycheck Fairness Act:

The Paycheck Fairness Act clearifies the 1963 Equal Pay Act by making clear that victims of gender-based discrimination can sue for compensatory and punitive damages.  It also moves the burden to employers to prove that pay differences are job-related and not sex-based.  It also bars employers from retaliating against workers who discuss or disclose salary information with their co-workers.

No – this is not an article about what type of policies you should have in place for your holiday party (a favorite topic for articles by employment lawyers during this time of year). However, as I have shifted all of my holiday shopping to Internet-based retails, the ManPower Blawg points out that many company employees have apparently made this shift as well. It reports about the Information Systems and Audit Control Association (ISACA) findings on employee use of computers for shopping:

  • 63% of employees shop online using their work computers
  • 55% of employers allow online shopping but don’t educate employees about potential risks
  • 26% of employees shop online without adequately checking web site security
  • employees between the ages of 18-24 spend the most time shopping online and take the most risks
  • employers lose an average of $3,000+ in productivity per employee due to online shopping

Personally, as long as the job is getting done, I do not have much of a problem with employees shopping on-line, but it definitely can be abused. The employee who wants to waste his or her time at work will always be able to find ways to do so, and having a policy in place to prohibit this will probably not change their behavior. Also, having a policy strictly forbidding employee shopping on the internet probably hurts morale. 

But, with that said, your company’s IT infrastructure can be at risk. As the risk of infection is about five times greater for companies that allow Internet usage by staff, and surfing the internet is a greater risk than posed by email attachments. So a company’s policy needs to be determined on a case-by-case basis.  But unlike a lot of my colleagues, given everyone’s desire to be connected 24/7, I think a policy permitting internet use at work (given some boundaries) could be effectively implemented.

Parties have an absolute right – even a constitutional right – to communicate freely with putative class member employees prior to a class action being certified. Two of the leading cases in California on this topic are Parris v. Superior Court (2003) 109 Cal.App.4th 285 and Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867.

In Parris v. Superior Court, the court held that a blanket requirement of prior judicial approval for parties’ communication with potential class members in a wage and hour class action before certification of the class action is a prior restraint of free speech. In Parris, the plaintiff sought to mail a notice to potential class members, and the court held that it did not have to approve the communications between plaintiff and the class members.  The court stated:

In concluding that, absent specific evidence of abuse, an order prohibiting or limiting precertification communication with potential class members by the parties to a putative class action is an invalid prior restraint, we find persuasive the reasoning of the United States Court of Appeals for the Fifth Circuit, which has held an order "restricting communications by named plaintiffs and their counsel with actual and potential class members not formal parties to the suit … violated the First Amendment to the Constitution."

The court noted that it could only intervene in exceptional cases, not merely because “fear of potential abuse” could occur from the communications.

Likewise, in Atari, Inc. v. Superior Court the court held that the trial court erred when it permitted plaintiffs to communicate with other potential class members, but at the same time, restricted the employer from communicating with the same employees. The Atari court stated:

We conclude that the evidence of record does not justify denying any party equal access to persons who potentially have an interest in or relevant knowledge of the subject of the action, but who are not yet parties.

The court said that absent the showing of threatened or potential abuse, both sides should be allowed to investigate the case fully, which necessarily entails speaking with witness-employees.

Underlying this issue is usually the Plaintiff’s law firm motivation to spread their contact information to potential class members.  They will usually raise the objection that the employer is spreading false information about the lawsuit, and therefore a "neutral" notice should be mailed out to employees.  They always propose that this notice contain their firm’s phone number.
 

Laura Young was terminated after closing down a 24-hour service station for several hours, in violation of company policy, sued her employer and her supervisor, Angela Lopez (the station manager), alleging claims of harassment on the basis of mental disability, retaliation, and wrongful termination, among others.

The employer and supervisor won summary judgment, ending the case. Lopez, the supervisor personally sued by plaintiff, filed a motion for attorney fees under Government Code section 12965, contending that Exxon, on behalf of Lopez, incurred substantial attorney fees defending Young’s “unreasonable, frivolous, and meritless claims against Lopez individually.” Lopez sought $18,750 in attorney fees (which comprised ¼ of the total attorney’s fees in the case). The court agreed that plaintiff’s claims against the supervisor were frivolous, which entitled the supervisor reimbursement of attorney’s fees.  However, the trial court only awarded nominal attorney fees of $1.00. The supervisor appealed this ruling, seeking additional attorney’s fees.

In only allowing Lopez to recover $1.00 in attorney’s fees, the trial court noted that an award to Lopez “would actually be an award to Exxon, which does not claim [Young’s] claims against it were frivolous.” The trial court concluded this “does not seem right,” and awarded nominal attorney fees of $1.00.

The appellate court here up held the trial court’s nominal attorney fee award of $1.00. The court stated:

In actions under the FEHA, the court, in its discretion, may award reasonable attorney fees to the prevailing party. (Gov. Code, § 12965, subd. (b).) California courts have followed federal law, and hold that, in exercising its discretion, a trial court should ordinarily award attorney fees to a prevailing plaintiff, unless special circumstances would render an award of fees unjust. A prevailing defendant, however, should be awarded fees under the FEHA only “in the rare case in which the plaintiff’s action was frivolous, unreasonable, or without foundation.” (Rosenman v. Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro (2001) 91 Cal.App.4th 859, 864 (Rosenman).) Rosenman cites the high court’s observation that the strong equitable considerations supporting an attorney fee award to a prevailing plaintiff – including that fees are being awarded against a violator of federal law, and that the federal policy being vindicated by the plaintiff is of the highest priority – are not present in the case of a prevailing defendant. (Id. at p. 865, citing Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412, 418-419 (Christiansburg).)

The appellate court approved that the trial court has discretion to set the amount of attorney’s fees recoverable to a prevailing defendant, providing the following four reasons:

  1. That the Rosenman case sets the standard by which to measure the exercise of the trial court’s discretion in awarding attorney fees to a prevailing defendant in an FEHA case: namely, only in the “rare case” in which the plaintiff’s action was frivolous, unreasonable or without foundation.
  2. As Exxon argued, there are many cases in which the courts have awarded attorney fees to prevailing parties who, like Lopez, are not actually liable for or have not incurred or paid fees. But in all those cases, the attorney fee award actually benefits the prevailing party or an entity which has provided the services and would otherwise not be compensated for them.
  3. There was no evidence that Exxon incurred fees on Lopez’s behalf that it would not have incurred had Lopez not been named as a defendant.
  4. As the Rosenman case instructs, the trial courts should “make findings as to the plaintiff’s ability to pay attorney fees, and how large the award should be in light of the plaintiff’s financial situation.”

The case, Young v. Exxon Mobil Corporation, can be downloaded from the court’s website here.
 

While severance is not required under the law, many employers who are terminating or laying employees off voluntarily offer severance to employees. Usually, the severance is tied to a release of claims that the employee may have against the employer.

I am often asked about the amounts appropriate amounts of severance. The Connecticut Employment Law Blog recently quoted a study about the average weeks of severance for every year of employment offered to employees:

Voluntarily Separated:

  • Top Executives – 2.76 weeks
  • Senior Executives – 2.23 weeks
  • Department Heads/Managers – 1.55 weeks
  • Professional/Technical – 1.39 weeks
  • All other employees – 1.23 weeks

Involuntarily Separated:

  • Top Executives – 3.04 weeks
  • Senior Executives – 2.49 weeks
  • Department Heads/Managers – 1.78 weeks
  • Professional/Technical – 1.60 weeks
  • All other employees – 1.44 weeks

Also, employers in California usually ask the employee for a release of any known and unknown claims the employee may have against the employer. Under California Civil Code section 1542, an employee must specifically waive their right under section 1542 in order to be a valid release of unknown claims.  The agreement itself must recite Civil Code section 1542 and that the employee is waiving their right under this section.  It is also important that the document clearly specify the extent of the release.  For example, does it apply to the employment relationship or to specific claims the employee has asserted against the employer?