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Use Caution When Posting Online About Employers

July 8th, 2010 James Peters

If you have not heard about this, a Best Buy employee recently got into trouble for creating and posting a video poking fun at the iPhone and Apple in general.

Although the video was more of a parody based on observations about iPhones and those who buy them, Best Buy understandably did not take kindly to an employee publicly criticizing one of its major customers (and also those who shop at Best Buy).

The employee was suspended during the investigation and it seemed to be just a matter of time before he was terminated, but Best Buy quickly withered under the harsh public backlash from the “geek” community and the company back-pedaled, citing their desire to promote a “supportive environment” for its employees as motivating their decision.

Best Buy publicly offered the employee his job back via a press-release, but he actually released a statement of his own essentially telling them he did not want his job back after being treated the way he was by Best Buy.

I am going to take the rare step of siding with the employer on this one.  The video the employee created (which I admit as an Android user I found uproariously funny) was watched by millions and at least briefly affected some of the public’s views on Apple, the iPhone and Best Buy.  I have to assume that Best Buy is one of the largest distributors of iPhones besides Apple directly and AT&T, so this employee’s actions caused the company at the very least a great deal of embarrassment.

After reading some of the informal commentary on the internet about this story (e.g. “He should sue them!”), I will offer up the following advice on the implications of California Employment law:  contrary to popular belief, the First Amendment has nothing to do with this case and only protects citizens from government action.  Except in limited circumstances that do not seem to apply to this situation, employers are free to terminate an employee for anything they post on the internet that is critical of them or their affiliates.

In sum, if you would not say it to your boss’s face, don’t post it on the internet where he can see it because he is free to respond as if you had.

Tennessee Passes Mean-Spirited "English Only" Law

June 6th, 2010 James Peters

Yesterday I came across an article about an “English-only” law Tennessee passed just last week.  My first reaction was similar to when I first heard of the Arizona immigration law, which is that it clearly violates federal law, will be struck down by the courts in short order, and is really nothing more than a political ploy to seem tough on immigration policy.

Most past legislation along these lines has tried to either require English-only in places of employment or allowed employers to require their employees to speak English.  Conservative California legislators made a half-hearted attempt at passing such a law a few years ago without gaining much traction.

As we have pointed out in the past, such laws are invalid because they violate Title VII of the 1964 Civil Rights Act, which specifically prohibits such policies unless there is an actual “business necessity” for them.  For example, a nurse could be required to speak only English to a doctor during surgery.  However, upon further examination I discovered that the Tennessee bill does not even try to defy federal law.

The Tennessee bill is an example of the worst kind of law:  one that has no valid purpose except to pick on a minority group.  All the law does is restate the Title VII language that allows such a policy only where there is a “business or safe workplace necessity” for it.

The law waters down its language even further by stating that an employer cannot require English-only when an employee is on a break or talking to co-workers.  Essentially, the law can be re-stated as follows:  “Employers can require an employee to speak English, but only if it is necessary for them to do so”.

In short, all the Tennessee law does is restate federal law, but in a deceptive way.  Instead of saying that English-only policies are illegal except where justified by business necessity, it purports to give employers permission (or even encourage them) to create such policies if necessary, which likely is not a problem to begin with and employers are already free to do under federal law.

All states in this country are in the middle of a fiscal crisis that is putting their legislatures’ budgetary skills to the test.  There are not enough hours in the day for most of them to come up with solutions to their states’ most pressing problems.  However, Tennessee’s legislature apparently decided that writing and passing a law that has no legal affect on anyone whatsoever, but instead tries to ostracize those who either do not speak English or have difficulty doing so.  That is just mean.

Employers Use Unfair Tactics to Fight Unemployment Claims

April 4th, 2010 James Peters

The New York Times recently published an article about the increased use of companies that specialize in contesting unemployment claims for employers.

We often attend unemployment appeal hearings on behalf of clients because they are also pursuing wrongful termination claims against their former employers.  This is both as a precautionary measure and a chance to obtain vital information at the outset of a case.

These hearings are conducted in front of an administrative law judge and under oath, so anything either side says can be used against them in later litigation.  If you think that your termination was illegal and that you might pursue claims against the company, I urge you to contact an attorney as soon as possible before the hearing.

If you testify at an unemployment appeal hearing without being prepared you could cause severe damage to your claims without even knowing it.  On the other hand, giving your attorney a chance to question the people who terminated your employment under oath without an attorney there to advise them is a tremendous opportunity.

I only started noticing companies like those mentioned in the NYT story in the last five years or so, but it is true that I have run into them more and more since the start of the country’s economic downturn.  The most disturbing aspect of these companies is that they seem to contest every single claim filed against an employer, knowing that some employees simply will not appeal a denial of their claim or will not show up at the hearing to fight the employer’s appeal.

Whenever I see a case where an employer contests an unemployment claim without any reasonable basis for doing so, there is almost always one of these companies on the other side pulling the strings.

However, one interesting thing I have noticed is that these companies almost never attend the appeals hearing if they find out the claimant has a lawyer.  To me this suggests that they do not even look at the merits of an unemployment claim unless they absolutely have to, which is a  terrible thing to do to a former employee.

In some counties, these appeals do not go to a hearing until months after the paperwork is filed.   Forcing an employee to go through a meritless appeal of their unemployment is a serious disruption in their life.  Instead of focusing on finding a new job, they have to worry about whether they will not only lose their benefits, but also have to pay back the unemployment they have already received.

Many states have passed laws that curtail some of the abuses these companies engage in, but California has yet to pass such a law.  Until then, employees should be vigilant in fighting for their unemployment and should not be intimidated if their employer tries to contest their claim.

We Fight for Those Who Cannot Fight For Themselves

November 12th, 2009 James Peters


George Washington once said:

Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.

Letter of Instructions to the Captains of the Virginia Regiments [July 29, 1759]. The advocates of consumer rights, viewing the resources of defense firms and corporate defendants, can relate to the trepidation felt by the out-numbered and out-gunned Continental Army. Because of that disparity in resources, Consumer Attorneys of California ("CAOC") consolidates the voices of consumer attorneys throughout the state to (1) preserve and protect the constitutional right to trial by jury for all consumers, (2) champion the cause of those who deserve redress for injury to person or property, (3) encourage and promote changes to California law by legislative, initiative or court action, (4) oppose injustice in existing or contemplated legislation, (5) correct harsh, unjust and oppressive legislation or judicial decisions, (6) advance the common law and promote the public good through the civil justice system and concerted efforts to secure safe products, a safe workplace, a clean environment, and quality health care, (7) uphold the honor, integrity and dignity of the legal profession by encouraging mutual support and cooperation among members, (8) promote the highest standards of professional conduct, and (9) inspire excellence in advocacy. This post is a multi-blog effort to inform consumer attorneys about CAOC's value and encourage participation in CAOC through membership.

CAOC works tirelessly to protect or advance those causes of import to consumers and their attorneys in California. Often those efforts, though valuable, receive little fanfare. For example, CAOC recently sponsored SB 510, which affects the re-sale of what are known as "structured settlements," in which victims receive financial compensation over a period of time for medical expenses and basic living needs, as determined by a jury. Before SB 510 was signed by the Governor, Courts expressed frustration at their inability to prevent the sale of structured settlements on terms that might ultimately lead to long-term financial hardship for the victim. Now, SB 510 gives judges the information they need to make a reasoned decision about the propriety of a structured settlement sale.

Measures like CAOC-sponsored SB 510 help protect the most vulnerable members of our society and ask for nothing in return. They exemplify the spirit of CAOC. However, CAOC is only as effective in its mission as its membership allows it to be. When consumer attorneys join the ranks of CAOC, its voice gains in power and clarity. But if consumer advocates sit on the sidelines, hoping to benefit from the work of others, CAOC is stretched thin, and we are all at risk as a result.

Now, consumer advocate bloggers from across the state are combining their voices to call upon each and every lawyer and firm that regularly represents plaintiffs to join CAOC, thereby strengthening the consumer's first line of defense. The blogs participating in this unified call to action are:

Show your support of consumers' rights by joining and supporting CAOC. Together we can make an impact that we cannot make alone.

Proposed California Law Restricts Credit Checks for Job Applicants

September 25th, 2009 James Peters

The Los Angeles Times recently reported on a new bill headed to Governor Schwarzenegger for possible signature (though I believe it is likely to be vetoed) generally prohibiting California employers from requiring applicants to allow them to examine their credit report as part of the application process.

The new California employment law would allow employers to do checks on employees who handle large amounts of money or other sensitive positions.  While I recognize that in these situations there may be some correlation between a history of poor financial choices and the ability to do certain jobs, in today’s economy the usefulness of this information is, in my opinion, declining at the same time employers’ use of it as a hiring tool seems to be increasing.

I talk to potential clients every day with tragic stories of loss about being unemployed for months while desperately searching for new employment.  Many of these people are about to lose their homes, have had their automobiles repossessed and even have experienced the demoralizing reality of sending their children off to college this fall without being able to give them any assistance with their tuition or living expenses.

When I hear from these people that their recent poor credit history, which itself is usually a direct result of either unemployment or serious illness, is now the reason they cannot find a job, it makes me angry.  The problem is that many of these employers now receive dozens, if not hundreds of applications for a handful of positions, so the applicant never gets a chance to explain their situation before they are eliminated early in the process based solely on their credit report.

Studies have shown in the past that the average employee’s credit scores has no correlation with their job performance, but as a matter of public policy I think that when unemployment is in the double-digits throughout much of California this is an issue that needs to be dealt with sooner rather than later.

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