Fenwick Employment Brief - April 2013

by Fenwick & West LLP

Drafting and Enforcing Commission Plans in California

May 7 (Mountain View, 7:30-10:00 a.m.)
May 8 (San Francisco, 8:30-11:00 a.m.)

Please join us for a complimentary breakfast briefing, during which we will review legal pitfalls and best practices with commission plans and agreements, including common drafting mistakes, key provisions that should be included in every plan, and how plans impact exempt classifications.

Click here for more information on the Mountain View session.
Click here for more information on the San Francisco session.


California Court Addresses Admissibility Of "Me Too" Evidence Of Discrimination


Employee Social Media Account Ownership Still Uncertain

Verbal Disclosure Of Private Facts Actionable

Employee Asked To Wear French Maid's Costume Not Sexual Harassment

Revised I-9 Form

San Jose Minimum Wage Ordinance

Computer Software Exemption Salary Requirement

California Court Addresses Admissibility Of "Me Too" Evidence Of Discrimination

In Hatai v. Dept. of Transportation, a California court of appeal upheld a trial court's decision to exclude "me too" evidence of discrimination from individuals outside of the plaintiff's protected class, but in doing so highlighted when such evidence will be admissible in a discrimination case.

Kenneth Hatai was a Senior Traffic Engineer of Asian heritage working at Caltrans in Los Angeles. His supervisor, Sameer Haddadeen, is of Arab ancestry. Hatai and his co-workers disliked Haddadeen's management style, claiming he made employees suspicious of one another and wrongfully accused them of misconduct such as falsifying time cards. Karem Al-Chokhachi (an employee of Arab descent) was also offended when Haddadeen allegedly told him in Arabic that they should be friends and "stick together."

Hatai, Al-Chokhachi, and other employees complained to Caltrans, accusing Haddadeen of discrimination and harassment based on race and national origin. Caltrans investigated, but ultimately found no legal violation. Hatai complained multiple times about Haddadeen, but never to the effect that Haddadeen discriminated against him because of his Asian heritage (a point that he repeatedly conceded in litigation).

When Hatai's performance faltered, Haddadeen placed him on a written warning documenting eleven examples of his insubordination and failure to meet deadlines. Hatai responded with legal claims against Caltrans and Haddadeen for discrimination and harassment. Hatai did not allege that Haddadeen discriminated against all non-Arabs; rather, he alleged discrimination against Hatai due to his Asian heritage.

The defendants moved to exclude "me too" evidence from other employees (both Asian and non-Asian) who claimed that Haddadeen discriminated against them. In response, Hatai sought to reposition the case as one of Arab favoritism rather than anti-Asian discrimination. The trial court rejected Hatai's theory and excluded the "me too" evidence.

While the court excluded the evidence in this particular case, it observed that such evidence will be admissible in other contexts, for example, when there is favoritism of one protected class that has an adverse effect on multiple related protected classes (e.g., multiple national origins). When such evidence is admissible, it can and likely will significantly expand discovery and make for a more complex case.


Employee Social Media Account Ownership Still Uncertain

Who owns an employee's social media account when it is used to promote the employer's business? This is a hot-button topic and developing area of employment law, and a Pennsylvania federal court recently shed more light on this issue.

In Eagle v. Morgan, Linda Eagle was an executive at Edcomm, Inc. The company encouraged employees to create LinkedIn accounts and to use them to promote the business. Eagle created an account using her Edcomm email address and gave her password to a few Edcomm employees to enable them to update her account and respond to inquiries. Edcomm then terminated Eagle. Thereafter, Edcomm accessed Eagle's account, changed her password, and replaced most (but not all) of her information with that of the new interim CEO. Eagle could not access her account, and Google and LinkedIn searches for "Linda Eagle" directed the user to Eagle's prior LinkedIn account bearing the interim CEO's name and partial information. Less than a month after her termination, LinkedIn restored account access to Eagle.

Eagle sued Edcomm and related parties for invasion of privacy, conversion, and other claims. The court found Edcomm liable for unauthorized use of name, invasion of privacy, and misappropriation of publicity, but awarded no damages. According to the court, Eagle did not prove the fact of damages with reasonable certainty: she did not point to any actual or potential lost business, and the method she used to calculate damages was likewise speculative and hypothetical.

Social media account ownership is an unsettled area of the law, and more courts will need to weigh in on the issue before employees can gain greater clarity about ownership rights. A similar case involving an ownership dispute over a Twitter account (PhoneDog, LLC v. Kravitz) settled before the court could address the merits. In the meantime, employers that wish to have control over and ownership of social media accounts maintained by their employees should establish such an understanding and agreement with the employee through a clear written policy or agreement, and consult legal counsel about the interplay between such writings and applicable law.

Verbal Disclosure Of Private Facts Actionable

A California appellate court expanded the basis for a public disclosure of private facts claim in Ignat v. Yum! Brands, Inc.

Melissa Ignat worked in the real estate title department at Yum! Brands, Inc. – the parent company of fast food favorites such as KFC, Taco Bell, and Pizza Hut. She periodically missed work due to her bipolar disorder. During a medical leave that Ignat took to deal with the disorder, her supervisor told co-workers that Ignat was bipolar. Following this disclosure, Ignat's coworkers allegedly shunned and ostracized her. Yum! eventually terminated Ignat, and she sued for invasion of privacy based on public disclosure of private facts.

The trial court dismissed the case on the ground that Ignat's cause of action required written disclosure of private facts, which did not occur. A California appellate court disagreed, quoting a 1950 case stating that verbal disclosure of a private matter "may be as rapid as the wagging tongue of gossip and as devastating as the printed page …." The court held that, in the modern era, there should be no distinction between verbal and written disclosure for purposes of a publication of private facts privacy claim; this distinction is "better suited to an era when the town crier was the principal purveyor of news."

Employee Asked To Wear French Maid's Costume Not Sexual Harassment

In Westendorf v. West Coast Contractors of Nevada, Inc., the Ninth Circuit upheld the dismissal of a sexual harassment complaint, despite offensive comments made by plaintiff's supervisor and coworkers, including a request that she wear a maid's costume at work.

Jennifer Westendorf was a project manager assistant at West Coast Contractors (a construction contractor) for about five months. At the beginning of her employment, her supervisor (Dan Joslyn) called her tasks "girly work" and then apologized. Once per week, Westendorf worked in a trailer at a construction site where employee Patrick Ellis was stationed. Joslyn also supervised Ellis. Over the course of a few months, and on four or so occasions, Ellis made a few comments to Westendorf regarding the size of a coworker's breasts, women's use of tampons, and multiple orgasms. He also told her she needed to clean the trailer while wearing a French maid's costume and said "f*** you" to her several times. Joslyn participated in the discussion about a coworker's breasts and laughed at Ellis's jokes. After Westendorf complained about the behavior, she was terminated.

The court held that the alleged harassment was not severe or pervasive and thus could not support a sexual harassment claim, because there were only about a half dozen incidents (of the clearly sex or gender-based comments), all involving verbal comments, over a five-month period. Thus, the sexual harassment claim was dismissed, but her retaliation claim survived.

This case highlights a very important distinction between harassment and retaliation claims. Westendorf did not have enough evidence to support a harassment claim. Yet for a retaliation claim, she need only show protected activity (i.e., a good faith complaint about harassment, not that the conduct actually constituted actionable sexual harassment) and a causal connection between that activity and her eventual termination. This is a reminder for employers that retaliation claims can often survive even when the underlying harassment cannot be proven.

Revised I-9 Form

On March 8, 2013, United States Immigration and Citizenship Services released a revised I-9 form. The revised form has clearer instructions and additional data fields, among other changes. Employers must use the revised form starting May 8, 2013. It can be found here or at http://www.uscis.gov/files/form/i-9.pdf.

San Jose Minimum Wage Ordinance

San Jose's Minimum Wage Ordinance, effective March 11, 2013, requires employers to pay employees at least $10.00 per hour for work performed within the city. This amount may increase annually based on the cost of living. San Francisco also increased its minimum wage this year from $10.24 to $10.55.

Computer Software Exemption Salary Requirement

The salary requirement for California's computer software employee exemption increased this year, effective January 1, 2013. Now employees meeting this exemption must be paid at least $39.90 per hour or $83,132.93 per year for full-time employees (not less than $6,927.75 per month). The 2013 wage increased about $1.00 per hour and $2,000.00 per year respectively from 2012.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fenwick & West LLP | Attorney Advertising

Written by:

Fenwick & West LLP

Fenwick & West LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.