In an effort to save the state of California money, Governor Schwarzenegger has indicated that will sign an Executive Order that would call for all state government workers to be paid the federal minimum wage ($6.55/hour as of today) rate until a budget agreement is reached between the Democrats and Republicans. Why not at least the California minimum wage rate of 8.00 per hour?

Evidently a 2003 ruling made by the California Supreme Court allows him to do pay workers the federal minimum wage until a state budget is passed.

From the Sacramento Bee:

He [Governor Schwarzenegger] says that his action complies with a 2003 ruling by the California Supreme Court that made clear that without a state budget in place, federal labor laws require the state to pay most workers “either federal minimum wage or, for those employees that work overtime, their full salaries.” The order would require state agencies to stop authorizing overtime for most employees.

The Order also calls for an additional 20,000 or so part-time workers would be laid off.

Needless to say, not very many people are happy about this idea. Even some on the inside.

From the San Jose Mercury News:

State Controller John Chiang, whose office pays state employees, criticized Schwarzenegger’s threat as a political ploy that could end up costing the state even more in litigation fees.

“Forcing public servants to involuntarily loan the state cash by foregoing their hard-earned paychecks puts an untenable burden on our teachers, health care workers and those who provide critical public services,” Chiang said in a statement.

“Cutting workers’ salaries will do nothing meaningful to improve our cash position or help us make our priority payments.”

Mr. Chiang has indicated that he will not comply with the Governor’s order should it pass.

This really has stirred the waters. The concern is being voiced statewide. And the unions are speaking up.

From the LA Times:

“The governor is turning a budget crisis into a catastrophe,” said Yvonne Walker, president of Service Employees International Union Local 1000, which represents 95,000 state workers. “How can you tell people, ‘We will just pay you this amount and you can catch up later?’

“We are in the middle of a housing crisis, and people are losing their mortgages,” she said. “Are they going to issue a notice to mortgage companies that employees will just catch up later?”

Walker said she believed the governor’s plan was illegal, and union attorneys are already drafting a lawsuit to file if the order is signed.

One can only hope that a budget is reached sooner rather than later. This is not a good time to be reducing anyone’s salary.

You can find a copy of the Executive Order in question right here.

Update: SFGate has a good breakdown of the employees who would be affected by this change.

The HR Carnival has set up its big top and the show is about to start.

In a precedent setting decision, the 4th District Court of Appeals determined today that California employers are no longer responsible for for ensuring that their employees take meal breaks but rather, just that the meal breaks are available for the employees to use without any interference from the employer.

From the California Chamber of Commerce:

(July 23, 2008) In a decision that will have an impact on the laws governing meal and rest breaks, the 4th District Court of Appeal yesterday ruled that California law requires that employers need only provide meal periods, and, as a result, as with the rest period claims, the plaintiffs’ meal period claims are not amenable to class treatment.

The issue before the court in the case of Brinker Restaurant Corporation et al., v. The Superior Court of San Diego County, is did the trial court err in certifying this matter as a class action without first determining the elements of plaintiffs and real parties in interest against the defendants?

The court ruled that the class certification order is erroneous and must be vacated because the lower court failed to properly consider the elements of the plaintiffs’ claims in determining if they were susceptible to class treatment.

The court concluded that:

1.Employers cannot impede, discourage or dissuade employees from taking rest periods; they need only provide, not ensure, rest periods are taken;

2. Employers need only to authorize and permit rest periods every four hours or major fraction thereof and they need not, where impracticable, be in the middle of each work period;

3. Employers are not required to provide a meal period for every five consecutive hours worked;

4. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them, not ensure they are taken; and

5. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if the employer knew or should have known the employees were doing so.

Furthermore, the court concluded that because the meal and rest breaks need only be “made available” and not “ensured,” individual issues predominate and based on the evidence presented to the trial court, they are not amenable to class treatment.

It seems that the Governator is quite pleased by this turn of events:

“We are pleased that the California Court of Appeal issued today a decision squarely addressing many of the central issues in dispute concerning meal and rest periods. The confusing and conflicting interpretations of the meal and rest period requirements have harmed both employees and employers. Today’s decision promotes the public interest by providing employers, employees, the courts and the labor commissioner the clarity and precedent needed to apply meal and rest period requirements consistently.”

For once I’m in agreement with Ahnold. Watch out for those low flying pigs.

Thanks for the heads up Derek!

Oh boy. This looks like a good one. Stewart Baker, Assistant Secretary for Policy at the Department of Homeland Security really threw down the gauntlet regarding SHRM’s (Society for Human Resources Management) opposition to E-Verify when he made this statement:

SHRM lobbies for the HR execs who do corporate hiring. It also opposes E-Verify. I suppose corporate hiring is easier if you can hire illegal workers, so perhaps I shouldn’t be surprised that SHRM wants to kill a program that makes it harder to hire illegal workers.

SHRM responded by publicly rebuking Mr. Baker for his comment. Specifically, “We find DHS’s false characterization to be uninformed and insulting to the human resource profession.” SHRM Acting President and CEO China Gorman also took action by informing Michael Chertoff, Secretary of Homeland Security, that his department had not responded to several requests by SHRM to discuss alternative solutions to employment verification, particularly SHRM’s own proposal.

In my opinion, Mr. Baker was way out of line in making the above comment. It’s one thing to disagree with a professional organization for it’s governmental opinions, it’s another thing to accuse an entire profession of violating federal law. As far as I’m concerned, I’m not interested in anything else Mr. Baker has to say. His opinion lost all validity to me when he stooped so low as to insult those of us in HR.

Thanks SHRM for sticking up for us. This is why I remain an active member from year to year.

I wrote about this quite awhile ago.

In this particular case, a class action lawsuit was filed on behalf of 219 Cintas employees who alleged that they were not appropriately because they had not been paid according to the living wage as was determined by the city of Hayward, CA.

These workers, although not employed in the city of Hayward, worked specifically on a contract with the city of Hayward. Cintas argued saying that the ordinance shouldn’t apply to workers outside Hayward. An Alameda County Court decided otherwise, to the tune of over one million dollars, albeit with the caveat that the failure to pay the living wage was not willful on the part of Cintas. Cintas subsequently appealed stating that Hayward’s ordinance was ambiguous and confusing.

Very recently, the First District Appellate Court upheld all of the rulings made by the Trial Court. According to Wage Law (fast becoming one of my favorite blogs):

Until last month, no California appellate decision had construed the requirements of any municipality’s living wage ordinance, or addressed the constitutional challenges to any such ordinances. Now, however, most of the defenses commonly raised when employers challenge living wage ordinances have been rejected in an opinion published last month by the First District Court of Appeal in Amaral v. Cintas Corporation No. 2 (2008) __ Cal.App.4th __. Amaral addressed the constitutionality and application of a living wage ordinance enacted by the City of Hayward and incorporated into its municipal contracts. Defendant Cintas entered into such contracts with the City, but did not provide the minimum wages or benefits required by the ordinance to employees who worked in the company’s stockroom or laundry production facilities, which are located outside the City of Hayward. Some of those employees filed a class action seeking the living wages due, benefits, civil penalties and waiting time penalties. On cross-motions for summary judgment, the trial court found that Cintas violated the ordinance, which was enforceable; that it breached its contracts with the City, and violated the Unfair Competition Law and numerous Labor Code provisions. The court awarded back wages and unpaid benefits, imposed penalties under the Private Attorneys General Act of 2004 and awarded plaintiffs statutory attorneys’ fees and costs. However, the trial court found that, prior to the determination of its legal duties under the new ordinance, Cintas’s conduct was not “willful” so as to justify waiting time penalties. The Court of Appeal affirmed all of the trial court’s rulings.

I strongly suggest reading the entire article as it goes into far more detail that I can. It’s absolutely fascinating and I personally believe that this case sets incredible precedent, particularly since more and more municipalities are putting living wage ordinances into play.

Valleywag actually brings up an interesting point here. Does Google promote age discrimination with its “Work Hard, Play Hard” tag line?

I must admit that I’ve been incredibly annoyed at Valleywag lately due to personal reasons, but I give them due credit for attempting to connect the the dots from a recruiting strategy to a current lawsuit, a case in which Google is being sued for age discrimination.

Per Valleywag:

One of the most significant employment law cases of 2007 was Reid v. Google, Inc., in which the search giant was charged with age discrimination for terminating PhD. computer scientist Brian Reid at the age of 54. Prior to his firing, Reid was reportedly subjected to a plethora of age-related disparagement, made the butt of jokes, and found himself a fish out of water in a “youthful atmosphere” featuring employee participation in hockey, football and skiing. Reid testified that upon being fired, he was told he was not a “cultural fit.”

The case is heading to the California Supreme Court and we’ll see what they have to say.

I honestly do not believe that Google intended to put a discriminatory recruiting strategy into place in any way, shape or form, nor do I believe that Valleywag’s interpretation is necessarily correct. However, because this now has been interpreted as such, Google may want to lay low on the “Work Hard, Play Hard” thing while the case is still active.

Just a thought.

Found here. Must be used starting…well, last week. 7/1/2008.

Forgive me. I was on vacation. From everything.

Today I was reading an article about a performer in the Bay Area by the name of Carla Zilbersmith who has amyotrophic lateral sclerosis (ALS), the same disease that took my mother’s life in 2002.

Normally I stay away from anything that refers to the disease as it makes me way, way too upset. I only got three pages into “Tuesday with Morrie” before I had to put the book down and away for good. But the title of the article “Zilbersmith battles ALS with humor” really drew my attention and not only did I read the article, I found myself going to her blog and getting completely absorbed during my train ride home.

Ms. Zilbersmith completely captured me with her honesty, her humor and her incredible bravery in the face of a terrifying disease. She is able to see the beauty in life despite that which pulls her body away from her control.

“How do I have time to fight ALS when all around me the world invites me to joy?” This line made me cry. It made me think of how life goes so unappreciated for so much of the time. It made me think that I’d like to meet this woman and tell her how incredible I think she is.

Most of all, Ms. Zilbersmith reminded me of my mother and the incredible grace and dignity she showed up until the very end. And that made me smile amidst my tears.

It’s my birthday on Saturday. Every year I would thank my mother for bringing me into this world since my birthday was always just as much about her as it was about me.

Happy Birthday to us Mommy.

The Supreme Court ruled today that it would hear the case of Hulteen v. AT&T.

This is a case in which the Ninth Circuit determined that AT&T (then Pacific Telephone and Telegraph) violated the Pregnancy Discrimination Act of Title VII (PDA) by not offering the same retirement benefits to women who took time off due to pregnancy as those offered to employees who took time off due to other disabilities, despite the fact that the women had taken the time prior to the establishment of the PDA.

From SCOTUSblog:

In late May 2008, the United States – in response to the Court’s late January call for the views of the Solicitor General – filed a brief in which it urges the Court to grant certiorari. First, the government argues, the Ninth Circuit erred in holding that AT&T violated Title VII when, in calculating benefits, it failed to credit pre-PDA pregnancy leave; such a conclusion, the government emphasizes, gave an unintended retroactive effect to the PDA. Second, the government contends that efforts by the Ninth Circuit and respondents to characterize AT&T’s NCS system as facially discriminatory are “seriously flawed,” reasoning that when the petitioner adopted and applied its pre-PDA pregnancy leave policies, there was no law requiring pregnancy leave to be treated like other temporary disability leaves. Consequently, the policy could be discriminatory only if the PDA had retroactive effect, which it clearly did not. Indeed, the government continues, not only was it not retroactive, but the PDA “did not even apply prospectively to benefits programs” until 180 days after its enactment.

The United States next argues that, to circumvent the fact that the PDA did not at the time of its passage require employers to credit employees for pre-PDA pregnancy leave, the Ninth Circuit held that AT&T was nevertheless required to adjust the NCS date to account for pre-PDA pregnancy leave whenever it calculated benefits for any employee who had taken pre-PDA pregnancy leave. However, in the government’s view, “that kind of perpetuation-of-past discrimination claim is” – notwithstanding respondents’ arguments to the contrary – directly foreclosed” by a line of Supreme Court precedent starting with Evans and most recently revisited in Ledbetter.

With more and more of our society retiring, I have a feeling that we’re going to see a number of these types of cases arise over the next few years. Whatever the outcome, it’s certainly going to be a landmark decision.

This is a really interesting story of a guy who realized his dreams as a video game designer very early on and then left his job to travel the world.

During his travels, he danced a goofy little dance in front of landmarks in different countries. During his second go-round (sponsored by Stride Gum), he danced some more, this time with people whose respective countries he visited.

It’s a beautiful video and it made me cry because what Matt is doing makes it seem that it would be easy for us just to put away our hatred of each other and just dance a goofy little dance with the world.

Where the Hell is Matt? (2008) from Matthew Harding on Vimeo.

From SFGate:

(06-19) 13:05 PDT WASHINGTON — The Supreme Court today overturned a California law that prohibited employers from using money they get from the state to campaign against labor unions.

In a 7-2 ruling, the court said the law, the first of its kind in the nation, conflicts with federal labor laws that allow employers to speak freely against unionization, as long as they do not use threats or coercion.

The federal law that protects workers’ right to join a union also favors “uninhibited, robust, and wide-open debate in labor disputes,” said Justice John Paul Stevens in the majority opinion. He also said employees have a right to receive information opposing unions.

The union-sponsored law, signed in 2000 by then-Gov. Gray Davis, barred state contractors and other companies that receive at least $10,000 from the state in a year from using any of that money to support or oppose union organizing. The law was suspended by a federal judge in 2003 but reinstated in September 2006 by a federal appeals court in San Francisco.

This is another interesting one. I’m sure that the NLRB is going to appeal this as violating employee rights under the NLRA.

The ruling can be found here.

Another one to keep an eye on. It’s been a busy day in the Courts.

From the International Herald Tribune:

SAN FRANCISCO: A federal appeals court in San Francisco has made it more difficult for employers to legally access e-mails and text messages sent by their workers on company accounts.

Under Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals, employers that contract an outside business to transmit text messages can’t read them unless the worker agrees.

The ruling also lets employers access employee e-mails only if they are kept on an internal server.

The case originated from a lawsuit by Ontario, California, police Sgt. Jeff Quon and three other officers. They sued after wireless provider Arch Wireless turned over to the police department transcripts of Quon’s text messages to them in 2002. Police officials read them to determine whether department-issued pagers were being used solely for work purposes.

A lawyer for the city of Ontario and its police department says his clients probably will appeal Wednesday’s ruling.

I expect that this one is going to raise a lot of questions as to the electronic rights of employees and employers.

I, for one, am really looking forward to the impending dialogue.