You Were Looking For A Meal Ticket? (UPDATE AT END)You're on the edge of your seat? You're sitting down?
OK, now you can read on.
After a request from Governor Arnold Schwarzenegger, the California Division of Labor Standards Enforcement issued an emergency regulation drastically altering the agency's enforcement policy concerning employee meal and rest period requirements under California wage and hour laws. First issued on December 10, 2004, the new regulation became effective on December 20, 2004, after receiving approval of the California Office of Administrative Law.
The new regulation affects existing law three ways. Most significantly, the regulation clarifies that the one hour's pay owed by an employer to an employee who works five or more hours without an off-duty, nonworking meal period of at least 30 minutes is a penalty, not wages. This clarification means that claims for missed meal or break periods must be brought within a year or they will be barred by the statute of limitations.
Second, employees filing Labor Code claims against their employers may not recover attorneys fees, costs, interest or waiting-time penalties. The change, which is retroactive, should significantly reduce the ability of plaintiffs’ lawyers to recover excessive monetary awards in the many employment class actions now pending in California courts. How's that for an ex post facto law?
The new regulation describes how employers can satisfy the meal period requirement.
Count 'em, there are four ways: (1) making the meal period available to the employee; (2) affording the employee the opportunity to take the meal period; (3) posting the applicable order of the Industrial Welfare Commission (i.e., the Wage Order); and, (4) maintaining accurate time records. These options represent a significant change from the DLSE's prior interpretation that imposed a penalty of an hour's pay per day whenever the employee missed a meal period, even when done at the employee’s request.
Under this new regulation, employers can demonstrate compliance with the meal period requirements by having employees sign a notice and acknowledgment of understanding which advises them of their meal period rights.
The third change clarifies that employees scheduled to work longer than five hours may be permitted to take a meal period any time prior to the sixth hour of work without violating the law. This change affords employers and employees greater flexibility to schedule meal periods.
The new regulation will not change the employer's obligation to provide meal periods to its employees, but it provides much-needed guidance and clarifies the penalties for violating the meal period rules.
Ok, that's it in a nutshell. If you want more, consult your lawyer.
I knew you were dying to know.
You knew it was too good to be true.
Due to heavy lobbying by organized labor and plaintiffs'-side employment lawyers, the Schwarzenegger administration withdrew proposed labor rules that critics complained would have made it harder for workers to take lunch breaks and collect back wages. The administration acted just as the rules were about to be put into effect on an emergency basis by the Office of Administrative Law, an agency that vets regulations to ensure that they're needed and correctly drafted.
The rules would have changed the criteria people follow to file complaints with state regulators about being deprived of proper lunch breaks on the job. As it is now, an employer has to give an employee a 30-minute break after the worker has put in five hours. The rules would have in effect stretched that to six hours. The proposed rules also would have eliminated employees' ability to file claims about incidents more than a year old. In addition, it would have become harder for workers to collect the attorneys' fees, costs, interest, waiting time penalties and large monetary awards that all had been bolstered in a law signed by former Governor Gray Davis in 2000.
By moving on an emergency basis, the administration would have had the rules go into effect before public hearings on them were scheduled. Now, hearings will be held in San Francisco, Los Angeles and Fresno over the next 120 days and then the Labor and Workforce Development Agency will decide whether to put the rules on the books.
We'll keep you posted.
New Graphics RefreshedTip-'o-the-day: if you see of photograph of J. Craig over there on the left, hit the refresh button on your browser to see the new graphic we just uploaded.
If you see the new graphic, the refresh button restores the original photo. You can print them out to (as my grandfather would say) "put them up in the basement to scare the rats away."
The Price of Mele Kalikimaka Goes UpThat'll be $200, please.
For a Christmas tree. In Hawaii. While the East Coast prepares for the deep freeze that comes with this time of year, Hawaiians, too are huddled in their blankets as temps drop into the 60's.
It's hard to understand freezing weather here in SoCal while we're getting ready for and enjoying a bluewater Christmas.
But come on, $200 for a tree? Yes, ours went up this weekend, and we could have easily spent $200 on a big tree, but we got by for less than half that, which we thought was expensive. Flocked, no less. It's a first. We've only ever had a regular green tree before.
It's no wonder that Hawaiians are upset with these prices. Previous records show much lower prices, but apparently, retailers in Hawaii underordered. The trees come from Oregon, where prices there range to $84.00.
Tree shopping, if you can even call it that, has changed since I was a kid. My mom bundled us up and my dad took us to the tree farm, where they gave you a saw and you went out into the forest to cut down a tree.
I remember we paid $7.50 that year.
And a haole maka hiki ho to you, too.
Let's See Them Collect This JudgmentSpam is finally under control at our office, thanks in large part to this zippy little add-in called Brightmail.
Works like a charm.
Probably even better than this $1 billion judgment. Here's the deal. A federal judge in Iowa awarded an ISP company a one billion dollar judgment against some 300 spammers for flooding the ISP with 10 million emails a day.
That's a cool 10 bucks per spam email. Not bad for a day's work.
But what do you think of the likelihood of collecting that judgment?
Right. I thought so. Zippo.
Great idea, and maybe it will cause other spammers pause, but hasn't this judge ever heard of bankruptcy? What does he think is going to happen?
The spammers are going to get their checkbooks out?
Ok, enough whining. How about a solution here? I would have tried seizure and forfeiture. Maybe even an injunction or two. But then again, a billion isn't too bad, either.
Let's Talk RSS FeedsWhile surfing around the internet today, I paid particular attention to the placement and availability of blog RSS feeds.
What surprised me is that some of my favorite blogs didn't have them. In fact, I'm embarrassed to tell you that some of the Law.com Blog Network blogs didn't have them. Tom Mighell even commented on some other Law.com issues. Qualifier here, MIPTC has RSS feeds, in spades. What surprised me more, though, was how hard it was to find the feeds on the sites that did have them.
So, here's ten ideas (and MIPTC will be instituting a few that we don't presently have):
1. Make your feed easy to find. Like the blog in the last link, put your feed link up high.
2. Offer your readers a choice. Take a cue from the Professor (look on the right under "Subscribe"). Offer different types of RSS feeds: Headlines only, Headlines and a short summary and Full content. People have different tastes.
3. Try it out and make sure it works. I use Amphetadesk as an RSS Aggregator, and several of the blogs I tried to add today, Amphetadesk couldn't negotiate. So, if you offer an RSS feed, download the other news aggregators and test them out to make sure your blog's feed comes through.
4. Post a wide selection. You know the internet is huge. There are a lot of aggregators out there, and they all have different formats. Remember the edict of Heinz 57.
5. List just one. OK, yes, this advice is directly contrary to #4. But if you don't have the time or capability to mimic MIPTC's page-o-rama of aggregators, just list one. Otherwise, your readers have to find you instead of you finding them.
6. Read your own feed. See if you like it. If you don't, it's likely that your readers won't either. One of the feeds I added today changed the size of the font to something around 16 point. The funny thing was that the top post advised against using ALL CAPS to post. That site's big font size wasn't much better.
7. Write for your feed. Try snappy headlines (sometimes that's all your readers look at). If they get past that you're lucky. If they do, remember the mantra of journalism: an interesting lead draws readers into your post.
8. Keep the number of posts in the feed limited. OK, an admission here: not that long ago before I started following the advice listed here, I was a neophyte. MIPTC's feed was only full content, and every single post I had ever written (then, just under 500). Now, our feed is the last ten posts and a short summary. We'll be changing it to follow the advice in #2.
9. Watch where you post photos. Aggregators (at least Amphetadesk) grabs photos and adds them into the feed. If you want the photo there, great, but remember that it doesn't look as good in an aggregator as it does on your blog.
10. Add a podcast or a videocast. Step out there on the cutting edge, and readers, listeners and viewers will follow.
Reel Reviews - To Kill A MockingbirdAs promised, MIPTC goes to the movies. Here's Michael Geoghegan's review:
Reel Review #16: This is terrific movie that should be a “must see” for everyone. Gregory Peck puts in a career highlight performance as Atticus Finch, the small town attorney who is defending a black man accused of raping a white woman in the depression era South. Not only did Peck take home the Oscar for his performance, but also Atticus Finch is rated as the number 1 movie hero in American film by AFI. Get ready, it is time for a classic: To Kill a Mockingbird.
To Kill a Mockingbird
AFI's 100 Heros and Villains.
Nota bene: Michael's full audio review is contained in the 11-minute Podcast below. To hear his Podcast, click on the link, or download it (and MIPTC's Podcasts) to your iPod or PocketPC from here.
Audit Response Letters Protected Under the Work-product ShieldAttorneys who represent clients in litigation have to respond to auditors all the time. They're called audit response letters.
Boring, in a word. Just imagine. Lawyers and auditors in the same room.
Not only boring. Snoring.
But, some big news for both lawyers and accountant auditors today from our local court of appeals.
It's new law here in California. Federal courts have come down on both sides of the issue, but we've never addressed it before.
The court decided that audit response letters are protected by the attorney work-product privilege, and not discoverable by litigation adversaries.
Big deal, you say? Well, maybe not. But to lawyers, accountants and many audited companies, it is. So if you're a lawyer and looking for a practice tip out of this whole thing, here's a freebie. It's the language we already use on our audit response letters:
This communication is protected by the attorney-client and attorney work product
privileges, must not be disclosed to any other party, and should be treated in a confidential manner. Federal Rules of Civil Procedure, Rule 26(b)(3), Federal Rules of Evidence, Rule 501, California Code of Civil Procedure section 2018 and California Evidence Code sections 950, et seq.
We were hoping for just this decision.
Defining the Essence of Spin DoctoringOur Law.com blog maven Lisa Stone has been providing some wonderful reading over at NYU's PressThink. She blogged about "Spin Alley" - the practice of politicians spin doctoring (be careful with this link - it's career advice) presidential debates.
Her piece traced the development of spinning in recent journalism.
She had this to say about spin, "In other words, 'superstars' who performed at peak level in spin situations were admired for their skills. They could 'win' the spin, and winning was admired. Spinning for the press pack was a designated, accepted part of the debate ritual. Those who worked the system well—Messrs. Atwater and Baker—were considered worthy adversaries by journalists. Note: The better the spinner, the better the reporter (listener) you have to be to 'catch' the master."
The current perception of spinning is that it is a technique by political handlers to cast their candidate in the best possible light. The career link above makes the case that Moses, Machiavelli and Rasputin were the original spin doctors. OK, maybe Adam was, as Lisa notes in her post.
Even so, I'd add to that list Cardozo, Patrick Henry, Lord Melbourne, Blackstone and perhaps Daniel Webster.
My list is all lawyers. In fact, after I read Lisa's piece, my theory was that the spin doctors she identified were also lawyers. Indeed, many lawyers are politicians. You see, I thought that lawyers were the essence of the art of spin.
But, I was wrong. Only Jim Baker was a lawyer. Turns out that the other spinners, Lyn Nofziger and Lee Atwater were not.
Now that's not to say that lawyers aren't spin doctors; I dare say as a group, we're certainly some of the most practiced. Even lawyer bloggers claim to be spin doctors. Whether lawyers actually qualify as spin doctors or adversarial advocates is a matter of degree, I think.
At some point, Lisa's post notes that "Spinning is lying." Well, certainly lawyers have been accused of that, so perhaps we qualify by default. But really, we take the factual situation where we find our clients and take those facts and analogize them to the existing law, or reframe either or both the facts and the law to a legal or equitable result - the desired result - needed by our clients, all the time spinning our side and "de"-spinning the opponent.
Advocacy has an element of spin to it, but more important, it frames the issues first. A famous legal writer once commented that all he had to do was put this line at the beginning of his brief, and he'd win: "Defendant should not be approved as a foster parent because he is a convicted child molester."
Correctly framing the issue often not only defeats your opponent, but also dictates the outcome.
Isn't that the essence of spin doctoring?