What do the United States and Papua New Guinea have in common?

What do the United States and Papua New Guinea have in common?

18 May 2015 by Curt Surls 

What do the United States and Papua New Guinea have in common?  According to the United Nations, they are the only countries in the world without any sort of paid time off for new mothers.

In the Mother’s Day edition of his HBO show “Last Week Tonight,” John Oliver, the British comedian who is perpetually incredulous over most things American, juxtaposed the maudlin, corporate exploitation of the holiday with the grim economic realities facing working mothers in this country.  But Oliver noted a tiny bright spot.  Three states, California, Rhode Island and New Jersey, have some sort of limited paid leave for new mothers.

California’s paid family leave program is modest.  Payments are only partial and a worker can be fired for taking paid family leave unless they are also eligible for job protection under the California Family Rights Act (“CFRA”).  Yet, only workers at companies with 50 or more employees and who have been on the job for at least a year are covered under CFRA.  Accordingly, only about half of California employees can actually take advantage of the paid family leave program.

That may be about to change.  Senate Bill 406, currently pending before the California Legislature, would expand the job-protection coverage of the paid family leave program to include smaller companies of 25 or more employees.  It would also expand the definition of family member for whom a worker can take job-protected leave to care for to reflect the realities of modern families, by including grandparents, grandchildren, siblings, and adult children.
Even this modest expansion of the paid leave program has drawn the garment-rending wailing of the Chamber of Commerce, who predictably labeled it a “job killer.”  In the Mother’s Day clip, Oliver mocked the overwrought rhetoric and overblown fears of Congressional opponents of the unpaid Family Medical Leave Act (“FMLA”) in 1992:  

“Our businesses shall crumble, or cities shall burn and hungry wolves will roam the streets.”

In reality, a 2012 Department of Labor survey showed only 15% of employers reporting any significant difficulty in complying with the FMLA. There were no reports of hungry wolves.  A similar study conducted ten years after the enactment of California’s Paid Family Leave Act found that 90% of California employers considered the Act to have a positive or neutral effect on productivity, profit, morale and costs.

Progress in protecting the economic security of families seems to happen only incrementally.  The expansion of California’s paid leave program reflected in SB 406 is a great next step.  Let’s leave Papua New Guinea in the dust!

PayPal, Dog Food and California’s Anti-Forced Patronage Law: Did PayPal Chief David Marcus cross a line by threatening the jobs of employees who don’t use PayPal products?

PayPal, Dog Food and California’s Anti-Forced Patronage Law: Did PayPal Chief David Marcus cross a line by threatening the jobs of employees who don’t use PayPal products?

28 Feb 2014 by Curt Surls

In what passes for celebrity gossip in Silicon Valley, the technology press is abuzz and atwitter over a leaked e-mail from PayPal President David Marcus to the company’s San Jose employees.  In the memo, Marcus bemoans the San Jose staff’s allegedly tepid personal enthusiasm for PayPal products.  At other offices, Marcus noted, the staff is willing to “hack into Coke machines to make them accept PayPal because they feel passionately about using PayPal everywhere.”  Marcus also expressed irritation with employees who can’t “even remember their PayPal password.”

As if password amnesia and a preference for using coins in Coke machines weren’t bad enough, Marcus was especially incensed by those San Jose employees who did not personally use PayPal products.  “Some of you,” Marcus lamented, “refused to install the PayPal app,” a point he underscored in the memo with flamboyant punctuation (“!!?!?!!”).

After urging the “San Jose PayPals” to use the company’s products, he closed with a vague threat, recommending that employees who refuse to install the PayPal app can go find another job.
In the tech word, the internal use of a company’s own software to demonstrate the quality and capabilities of the product is known informally as “eating your own dog food” or “dog-fooding.”  For example, Hewlett-Packard staff once referred to a project using only HP’s own products as “Project Alpo.”  But did Marcus take the “dog food” concept too far by threatening the jobs of employees who refuse to patronize PayPal?

The answer lies in California’s Depression-era Forced Patronage Law.  What is forced patronage, you may ask?  Let me illustrate the concept with a tale from my youth.

Long ago, in a downscale mall in a mid-sized Midwestern city, I got my first and only retail job at a now-defunct rural-themed clothing chain called the “County Seat.”

It is difficult for young people today to appreciate the sartorial horror that was the County Seat.  The clothing seemed targeted at rodeo clowns or the more fashion-forward Amish.  Nevertheless, County Seat staff were forced to buy County Seat clothing at a small discount and wear it on the job – in public!! – as a condition of employment.  The delusional thinking was that turning the sales clerks into human mannequins would stimulate sales. This was classic “forced patronage.”

But that was the Midwest.  Here in California, Labor Code section 450 prohibits an employer from compelling or coercing an employee to purchase goods or services from his or her employer or any other person.  The law was originally aimed at the proverbial “company store” of the coal mine of the remote farm labor camp.  But in modern times, it has been used in class action litigation against employers such as Abercrombie & Fitch (the County Seat of our time) and other clothing chains which require employees to purchase and wear the company’s fashions on the job.

So back to David Marcus and the PayPal e-mail.  Was there a violation of Labor Code section 450?  No one at PayPal, as far as I know, has been fired for refusing to use PayPal products.  And, because the statute prohibits the “purchase of anything of value,” Pay Pal could argue that requiring the download of a free PayPal app is not a violation of section 450.  On the other hand, if PayPal employees are terminated for refusing to purchase PayPal products, that would be a different bowl of dog food.

The evolution of the application of Labor Code section 450 from the coal mine to Silicon Valley shows how old statues are reinterpreted and updated for the cyber age. There is, alas, no specific statute that protects an employee from termination for forgetting a password.  Therefore, we are all very, very vulnerable.

Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace

Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace

25 Jul 2013 by Curt Surls, Lawyer

Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.”  It is July 2013.  After a painful break-up with her fiancĂ©, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.
Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant.  Lou is an overweight, balding, married father of three grown daughters.  Lou offers Mary an associate producer position, reporting directly to him.  Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace.  Edie demands that Mary be fired immediately.  Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional.  Lou fires Mary.  He replaces her with Rhoda.  In Iowa in 2013, Mary has no legal recourse.

This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive.  Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms.  In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.”  Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).

The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here (available with a www.Google.com search).

Here is the official photo of the Justices of the Iowa Supreme Court.  See if you can spot what they all have in common.

Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant.  For ten years, she was an exemplary employee.  She regarded her boss as a “father figure.”  Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant.   In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage.  Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson.   Ms. Nelson sued for gender discrimination.  The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.

The Court’s original decision in late 2012 was greeted with outrage and ridicule.  In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial.  Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself.  “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left).  “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”

Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere.  Of course it was “because of sex.”  If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss.  If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her.  Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.

But back to Mary Richards.  In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune.   What if he re-hired Mary?  Could Edie get her fired again in California?  Not likely.
The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit.   The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination.  California state law takes a broader view of the impact of sexual favoritism on the workplace environment.  Our Supreme Court has recognized that sexual favoritism is not merely a private matter.  Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women.  California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.

And besides.  Why would Lou even listen to Edie?  They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried.  You can watch the wedding here.

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