November 25, 2015

Happy Thanksgiving from Sylvester Oppenheim & Linde

We at Sylvester Oppenheim & Linde would like to take a moment to wish our clients, family and friends (including our blog readers), a very joyous and happy Thanksgiving.

Whether you are celebrating with a small gathering, or preparing for what is shaping up to be dinner for a small country, we wish you and yours all the very best.

It also seems appropriate to quote John F. Kennedy.

"As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them."


November 20, 2015

NLRB Decision on GPS Could be a Win for Employers

The NLRB handed down a decision that appears to be a win for employers. In the case of Shore Point Distribution Co., the NLRB found that there was no wrongdoing on the part of the employer when they installed a GPS tracking device in an employee's work truck. The device helped the employer prove that the employee was stealing time and was instrumental in the employee's dismissal.

GPS%20navigation%2085141634-001.jpgShore Point became suspicious of the employee, a route driver for the beverage distribution company, who seemed to take significantly longer on his routes than other drivers. Suspecting that the employee was stealing time, the employer hired a private investigator to follow the driver. Shore Point's employees are unionized. A bargaining agreement allowed the employer to engage a private investigator for this purpose. However, Shore Point went further by installing a GPS tracker in the driver's work truck.

The use of GPS devices is not specifically included in the existing bargaining agreement. This became a point of contention between Shore Point and the union, with the union arguing that the employer should have bargained for the right to install the GPS unit. On the surface, it looked as though the NLRB might agree with the union. However, they went the other way.

The NLRB found that the GPS was only used by the private investigator once to locate the employee when he temporarily lost sight of the truck. Because this use did not seem to materially affect the conditions of employment, the NLRB argued that Shore Point did not have to bargain for the right to install and use the device.

This decision seems like a win for employers, but it still makes a great deal of sense to proceed with caution before installing GPS devices on company vehicles.

Continue reading "NLRB Decision on GPS Could be a Win for Employers " »

November 6, 2015

Federal District Court Rules in EEOC v. AutoZone: Disability Discrimination Case to Proceed as Filed

The EEOC has announced that a federal district court has denied a request by AutoZone to limit the scope of a nationwide disability discrimination case. The case was originated by the EEOC.

Discrimination%2040134433-001.jpgAutoZone argued that the EEOC did not conduct an adequate, "nationwide" investigation prior to filing suit and asked the court to limit the suit to only three stores.

"[T]he Court may not inquire into the sufficiency of the EEOC's pre-suit investigation in order to 'limit' the scope of the litigation," the court stated in its order, which was written by U.S. District Judge Robert M. Dow, Jr.

The order also cited the recent decision in Mach Mining, LLC v. EEOC, in which the Supreme Court stated that courts should not impose additional procedural requirements on such litigation beyond those established by Congress.

EEOC filed suit on May 9, 2014, alleging that from 2009 until at least 2011, the company assessed employees attendance "points" for absences, without permitting any general exception for disability-related absences. The complaint alleges, qualified employees with disabilities with even modest numbers of disability-related absences were fired, in violation of Title I of the Americans with Disabilities Act (ADA). The ADA prohibits disability discrimination in employment, which includes failure to provide reasonable accommodations to qualified individuals with disabilities.

John Hendrickson, regional attorney for EEOC's Chicago District. Stated “This case alleges a serious violation of the law and should be decided on the merits. The Supreme Court's recent decision in Mach Mining should put to rest efforts to deny employees their day in court based on unfounded arguments about administrative procedure."

Continue reading "Federal District Court Rules in EEOC v. AutoZone: Disability Discrimination Case to Proceed as Filed" »

October 30, 2015

Settlement of P.E. Lawsuit Brings Changes to California School Districts

Childhood obesity is a hot topic, and a settlement in a California lawsuit is aimed at tackling that issue. Attorney Donald Driscoll took on the case in 2013, working on behalf of advocacy group Cal200 and parent Marc Babin. The lawsuit involved 37 school districts, which are responsible for educating one in five of all California elementary school students, and alleged that children were not receiving enough physical education.

school%20bus%20%26%20child%2044980077-001.jpgCalifornia requires that elementary school students receive at least 200 minutes of P.E. instruction every 10 school days. Previously, there were no reliable methods for tracking this time. Many teachers understood the 200 minutes requirement to be a suggestion, leading them to sometimes choose preparation for standardized tests over physical activity.

The settlement of this lawsuit demonstrates that the 200 minute minimum is a mandate rather than a suggestion. Moreover, school districts involved in the settlement are now facing strict reporting requirements. Some districts, like San Bernardino and Riverside, say that they have already enacted reporting strategies.

As part of the settlement, districts are now required to monitor the time that elementary school teachers spend on P.E. instruction. Teacher P.E. schedules must be publicly posted and teachers are also required to sign forms certifying that they are meeting the state-required minimums. School principals are being required to make surprise classroom visits to ensure that the requirements are being met.

In the Riverside Unified School District the technology department has already rolled out purpose-built software that is designed to help teachers and administrators comply with the reporting requirements. Teachers keep track of their P.E. minutes online, printing reports every two weeks to be passed on to principals for review. The principals sign the forms, and the school board receives an official report three times per year.

The other outcome of the litigation is new legislation aimed at curbing costly and time-consuming lawsuits against school districts. Complaints are now required to go through an administrative process that must be completed before a lawsuit can be filed. Hopefully, this will help districts direct more funds toward students and classrooms.

October 22, 2015

Was Chico Unified School District Protecting or Withholding Information?

The Chico (California) Unified School District wasn’t trying to keep information from the public when it sought to block emails from being released under public records laws, according to two district officials who were involved in the case. Instead, they say, the district’s lawsuit against a university where some officials moonlighted was merely an attempt to prevent legitimately confidential emails from being released.

Privacy%20Policy%2046679502-001.jpg“The only reason why we ended up in a lawsuit was to protect people,” said Andrea Lerner Thompson, who is a former member of the school board. Indeed, Lerner Thompson and current member Kathy Kaiser claim to have supported releasing the records. However, because both women used their university email accounts to handle public business for the district, they argued that no emails from those accounts should be released because legitimately confidential university information might be leaked in the process.

The problem began when a former principal for the district, Jeff Sloan, requested copies of all district-related emails. When it came to light that Kaiser and Lerner Thompson, along with fellow officials Bob Feaster and Rick Rees, had been using their Chico State University staff email accounts to handle district business, Sloan requested copies of those emails.

The women claim that they used the university accounts for district emails for the sake of convenience only. Even though the practice effectively hid district business records from being discovered in a district records search, Lerner Thompson says no one was attempting to circumvent laws requiring public access to district documents.

When the case reached the Butte County Superior Court, it was dismissed by Judge Barbara Roberts because all involved parties had finally agreed on a resolution. Prior to the court date, a court-appointed special master had reviewed the situation and all sides had agreed on a plan that would protect confidential university emails and release only district-related emails.

In an unfortunate twist, some confidential information included in the released emails was not properly redacted from the documents. This information was made public when the records were made available online. The emails have since been removed from the Internet.

Continue reading "Was Chico Unified School District Protecting or Withholding Information?" »

October 16, 2015

LinkedIn Agrees to $13 Million Settlement

Anyone who has ever joined LinkedIn knows that the social media giant sends out numerous emails. It's fairly annoying, and the company doesn't make it easy to opt out of their communications. That practice has gotten LinkedIn in some serious trouble. The company will be paying out at least $13 million next year in a settlement agreement that they recently signed.

Social%20Media%20Magnified%2044298834-001.jpgThe settlement agreement ends a class action lawsuit against LinkedIn. Known as Perkins v. LinkedIn, the case related to the website's "Add Connections" function. Plaintiffs allege that the company did not provide adequate notice regarding the emails it would send to contacts in the member's email address book. If LinkedIn users signed up for the Add Connections function, they were able to import contacts from any external email accounts. LinkedIn would then send an invitation email to many of these contacts. Contacts who ignored the email for a certain amount of time might receive up to two additional, reminder emails.

The court decided that while LinkedIn members who signed up for Add Connections did consent to have invitation emails sent to their contacts, they did not provide consent for the company to send any follow-up emails. Moreover, users were not asked for and did not give consent for their names and likenesses to be used in any follow-ups to the invitation email.

As part of the class action settlement, LinkedIn was not required to admit any wrongdoing. Similarly, the company denies each of the allegations made in the complaint.

LinkedIn users who are thought to be members of the class may have already received an email from the company letting them know about the settlement. Each email included a unique, 15-digit number to identify the claim. Others who feel they may be entitled to a portion of the settlement may apply to become a class member until December 14, 2015. Analysts suggest that class members may only receive about $10 each, but the lawsuit was aimed at punitive measures against LinkedIn. This outcome serves as a reminder to all companies that full disclosure of all email practices is imperative.

October 9, 2015

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we welcome and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

October 2, 2015

Can an Employee be Terminated for Self Defense?

In a ruling that is sure to have far-reaching ramifications for employers, the Utah Supreme Court has issued a ruling upholding an employee’s right to act in self-defense on the job. The court has ruled that employers who fire workers for defending themselves may be guilty of wrongful termination.

Fired%2053061626-001.jpgThe determination of wrongdoing hinges on two conditions. First, the employee must reasonably believe that the use of force is necessary in order to “defend against an imminent threat of serious bodily harm.” Second, the worker must have no opportunity to simply withdraw from the threat.

The case before the court was Ray v. Wal-Mart Stores. Five employees from two different Wal-Marts were caught up in two separate incidents involving violent individuals. All five of the workers were fired under Wal-Mart’s no-confrontation policy, which requires employees to withdraw from violent situations and call for help, regardless of the circumstances involved.

In one case, a shoplifter threatened employees with a knife. The workers managed to wrest the knife away from the woman and avoid injury, but they were later terminated. In the other case, a shoplifter held three employees at gunpoint inside a closed office, including shoving one worker into a wall and holding the gun to his back. The workers struggled with the man and retrieved the gun. These workers were also fired.

The terminated workers sued Wal-Mart for wrongful discharge in federal court. The federal court, in turn, asked the Utah Supreme Court to determine whether, assuming the workers’ actions truly were in self-defense, Wal-Mart’s policy would be recognized under Utah law.

The Utah court’s ruling stated that an individual’s right of self-defense is drawn directly from the state’s constitution and specific Utah statutes, as well as from common law. The court further stated that this right “protects human life and deters crime,” and confers “substantial benefits on the public.” Additionally, the court ruled that the workers’ right to defend themselves from bodily harm carries more weight than their employer’s business interests.

September 18, 2015

Toledo School District and Teachers Union Settle Lawsuit

Toledo Public Schools recently settled a lawsuit with the Toledo Federation of Teachers. The settlement requires the district to change its policy regarding staff members interacting with the media. Allegations in the lawsuit stated that the current media policy violated the First Amendment rights of union members.

Freedom%20of%20Speech%2045907452-001.jpgThe trouble began when Bowsher High School athletic director Terrance Reeves granted an interview to a local weekly publication. A reporter asked questions about an injury Reeves received while breaking up a fight between spectators at a basketball game. Reeves had given interviews before in his role as athletic director. The focus of this interview was more personal, and Reeves didn't have any qualms about answering the questions.

After the story appeared, Toledo Public Schools requested a meeting with Reeves. It seems he was in violation of the district's policy that prohibits staff communication with the media without concurrently working with the district. The TPS policy says that staff members "contacted directly by a member of the media must refer the reporter to the communications office, who will work with staff and the media outlet to respond appropriately ... ."

Although this policy had been in place for years it had never been enforced. Reeves had communicated with the media frequently without receiving any kind of reprimand, but the district's reaction to this story was different. Reeves and the teachers union sued the district after he was given a "green sheet," essentially a written warning. The lawsuit attacked the policy as being overly broad and vague.

The parties reached a settlement in which the district agreed to change its policy regarding staff members and media communication. Included in the new policy is an acknowledgement of the right of staff members to express themselves as part of participation in a free society. However, the policy also requires that media communications related to the district should be mindful of the district's interests.

Having organization policies reviewed by an attorney is an excellent way to avoid similar situations. With the assistance of a lawyer it's possible to balance the rights of employees with the interests of the employer.

Continue reading "Toledo School District and Teachers Union Settle Lawsuit" »

September 11, 2015

Are WiFi Allergies Real? In Time, Science and Lawsuits May Reveal the Truth

Schools and businesses beware. Electromagnetic Hypersensitivity Syndrome (EHS) may be hurting your students, employees and customers. While Science has not yet proven a causal link between EHS and the symptoms of its growing numbers of sufferers, lawsuits are being filed here in the US and abroad.

WiFi%20sign%2068234810-001.jpgA woman in France has been awarded about $32,000 in compensation for pain and suffering brought about by an allergy to WiFi. She claimed that she was forced to relocate to the countryside because digital wireless transmissions caused her severe discomfort. Her award will be paid out over the next three years.

Recently, the parents of a 12 year old boy in Southboro Massachusetts have filed a lawsuit claiming that the schools WiFi signal is causing their son to become ill and lose focus and concentration in school.

The complaint alleges that the boy was diagnosed with EHS after experiencing headaches, nausea and nosebleeds after the Fay School installed new, stronger wireless internet equipment in 2013. The lawsuit seeks accommodations and $250,000 in damages.

The World Health Organization acknowledges that EHS is a collection of symptoms, but clarifies it is not a medical diagnosis, and the symptoms may not be caused by a single medical problem.

A number of EHS sufferers have relocated to Green Bank, West Virginia in the Appalachian foothills. Green Bank is within the 13,000 square mile radio free zone in the US. Virtually all wireless devices are against federal law in that zone.

Is the beginning of a trend of EHS lawsuits? Should schools and businesses pay closer attention to the wireless waves being showered on anyone nearby? Will EHS become an ADA issue/category? It is just too soon to tell, but we will keep you informed.

September 3, 2015

Enjoy Labor Day!

Labor Day is upon us. Summer is unofficially over. Many kids have started school and the rest will start in a few days.

About Labor Day

Happy%20Labor%20Day%20%2064937021-001.jpgLabor Day is always celebrated on the first Monday of September. Americans have been celebrating Labor Day since the 1880s, and today it is an official federal holiday.
It is the day Americans celebrate their achievements in work, which the US Department of Labor says has contributed to prosperity and well-being of America as a whole.

Some Interesting Labor Day Facts

 This year, more than 35 million Americans will travel over Labor Day weekend.

 It is estimated that over 350,000 of them will choose Las Vegas as a destination.

 President Cleveland made Labor Day and official US holiday in 1894.

 Labor Day gas prices are the lowest in 5 years.

 Labor Day marks the end of hot dog season (it starts on Memorial Day), when Americans consume seven billion hot dogs; 818 per second!

Take this weekend to celebrate the fruits of your labors… wear white, enjoy a bar-b-que, eat some hot dogs and whatever you do, stay safe and have fun.

We are glad to have you as part of the Sylvester, Oppenheim & Linde team!

August 27, 2015

California Court of Appeals Awards Harassed City of Los Angeles Employee $3.2 Million

A California appellate court has ruled in favor of a white employee who suffered from discrimination by his Hispanic boss. The court ordered the City of Los Angeles to give James Duffy $3.2 million for the harassment he received from his supervisor, Abel Perez.

Retaliation%2032004699-001.jpgAccording to court records, Perez told Duffy that he hated Caucasians. Three of Duffy’s Hispanic coworkers related that Perez also told them that he was biased against white people. Additionally, the court determined that Perez harassed Duffy because he was disabled.

Duffy was a gardener for the city from 1991 until 2010. In 2001, Perez began regularly calling his partially disabled subordinate insulting names and making up reasons to write him up for poor performance.

In 2004, Duffy received a workplace injury that resulted in a traumatic brain injury. The injury caused speech and cognitive difficulties for Duffy, including difficulty thinking and repetitive speech. Perez took advantage of Duffy’s added disabilities, ramping up the abuse and even hiding the man’s tools so that Perez could discipline him for not completing his work. He also forbade other employees from coming to Duffy’s aid.

Although he was eventually investigated and transferred, Perez continued to be Duffy’s indirect supervisor and maintained control over his assignments. Perez assigned Duffy harsher working conditions and began driving past Duffy as the man worked, honking his vehicle’s horn and yelling insults.

Throughout the years of abuse, Duffy made report after report. However, the abuse was never stopped. Perez, who maintains his position with the city, denies Duffy’s claims and insists he has never been disciplined by the parks department.

In spite of Perez’ protestations, however, the original court found in Duffy’s favor. The City of Los Angeles appealed the large settlement, claiming that Duffy waived his right to sue when he accepted early retirement. The city also claimed that video testimony of Duffy’s fatally ill wife taken during her deposition was inadmissible because it was hearsay.

The appellate court dismissed the city’s claims as groundless and ordered it to pay the settlement. According to Duffy’s legal counsel, the case was unusual in the realm of employee harassment cases because of the wealth of direct evidence to prove Duffy’s claims.

The case is James Duffy v. City of Los Angeles, available HERE.