An Employee refusing to sign a disciplinary memo can be fired and denied unemployment benefits.

            In many jobs, employers have written warnings or notices they give to employees who are believed to have violated a work rule. Typically, these warnings/notices have a place at the bottom where the employee is supposed to sign his/her name. Generally, it is so the employee cannot later on say they never knew of the warning/notice. Sometimes, the employee refuses to sign the warning/notice because it might be looked at like an admission of fault. In a recent case, one employee refused to sign his name, and was fired for not signing the warning/notice. The employee filed for unemployment benefits and was initially given benefits. The employer appealed that decision and the Appellate Court sided with the employer. The Appellate Court found the employee committed misconduct for not signing the warning.

            In Paratransit, Inc. v. Craig Medeiros, the fired employee filed for unemployment benefits. In California, an employee can be refused unemployment benefits if the unemployment judge finds the employee committed “misconduct”. In this case, the fired employee was granted unemployment benefits by the unemployment judge. The employer appealed, the case made its way to the Appellate Court, where the employer prevailed. The Appellate Court found the discipline notice/warning was a standard policy at work and signing the warning was required as part of the job. Further, the Appellate Court found that just below the signature line, it read “employee signature as to receipt”. The Appellate Court found, in this instance, that the employee signing the notice/warning was just to give the employee notice of the violation, not that the employee admitted fault.

            In the Paratransit, Inc. v. Craig Medeiros, the Appellate Court seemed to support the employer and find the employer’s actions reasonable. According to the Appellate Court, the discipline notice/warning was a part of the job, and the notice/warning made it clear that the employee signing his name was not an admission of fault. The Appellate Court found misconduct by the employee because the employee refused to comply with the employer’s reasonable work rules/policy of signing the warning/notice. With a finding of misconduct, the employee was denied unemployment benefits.

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acampano@campanolaw.com

Bloggers may not always be allowed to post negative reviews about businesses.

            The courts may not protect people who post negative postings of businesses on the internet. Deciding whether the business owner can stop negative postings will depend on the corporate structure of the business, according to one recent Appellate Court.

            In Summit Bank v. Robert Rogers, the Appellate Court sided with the blogger, who posted negative comments about a publicly traded bank. The blogger worked for the bank until he resigned. The bank sued for defamation and the blogger filed what is referred to as an Anti-SLAPP Motion to strike the lawsuit. The blogger filed the motion claiming his posts were protected speech because issues surrounding the bank were of “public interest”. (See CCP Section 425.16)

            In analyzing the phrase “public interest”, the Appellate Court initially held that the phrase “public interest” is not defined by the statute (CCP Section 425.16). In the absence of a statutory definition, the Appeals Court applied existing case law and held that comments, positive or negative, about a business were of “public interest” if the blogger who posted the negative comments can prove that (1) the company is publicly traded (2) the number of investors and (3) whether the company promotes itself with numerous press releases. See Ampex Corp. v. Cargle (2005) 128 Cal.app.4^th 1569, 1576.

            Here, according to the Appellate Court, the postings were of public interest because the blogger could prove all three factors with conclusive evidence. The bank was publicly traded; the bank had investors; and the officers/executives issued many press releases promoting their publicly traded bank to attract more investors. The Appellate Court also noted that a public concern was the recent bank meltdowns going on throughout the country. Therefore, the public had even a stronger interest in the solvency of banks.

            In the end, the Appellate Court sided with the blogger. Although the Appellate Court, in Summit Bank, sided with the blogger and held the postings were protected speech, it appears the Appellate Court took that position because the blogger could prove the 3 factors listed above. The blogger had the burden of proof, which is not something to quickly overlook. One view to take from this opinion is that if your business is not publicly traded, does not have many investors, and you do not issue numerous press releases, a court may decide that the negative postings on the internet about that business are not of public interest and not protected speech. Whether or not the bank could prove a probability of success on the merits and whether the postings are defamatory are separate questions.

No overtime pay for personal attendants

Overtime for personal attendants? A person hired to care for an elderly person is not entitled to overtime if that person is hired as a personal attendant. Overtime is earned if a person works in excess of 8 hours a day or more than 40 hours a week. A personal attendant is defined as someone hired to supervise, feed or dress the client/elderly person. See Joy Cash v. Iola Winn 2012 WL 1662629 (Cal. Ct. App. 2012)

Witnesses are not always welcomed in the courtroom.

      In court, witnesses can help support a person’s claims. Without a witness the case will boil down to the “he said she said” type case. When you have a witness, your chances of proving a point can increase; however, that increase depends on your witness backing up what you say. Ideally, the witness has personal independent knowledge of what happened, and does not have to be reminded of what happened. That is the ideal answer, but not always the most practical. So, sometimes parties want their witness inside the courtroom to watch and hear what is being said so that when the witness takes the stand the witness will almost repeat what was said earlier. Fortunately, there is California Evidence code §777 which says, in part, “…the court may exclude from the courtroom any witness not at the time under examination so that such witness cannot hear the testimony of other witnesses.”

      The purpose of Evid Code §777 is to maintain fairness and veracity in the courtroom. This is done by keeping witnesses outside the courtroom until they called to testify. That way, the witness cannot be guided by what was said or heard, but instead by his/her own memory. In a case I defended, Evid Code §777 helped win the case.

      In the case I defended, my client was accused of doing bad things. Of course, that was not true, I knew that it was untrue, and believed in my client from day one. When we went to court to fight the case the purported “victim” showed up with two witnesses. In criminal cases we do not have the luxury of depositions (testimony taken under oath before trial), so we had to rely on what we believed. But we also relied on Evidence Code §777, and the court agreed to keep the two witnesses outside the courtroom. That code proved pivotal because the “victim” took the stand and testified that my client did bad things. When I had the chance to cross-examine the “victim”, I asked him if his witnesses outside were going to back him up on everything he says happened. The “victim” made it clear these witnesses were there when these alleged bad things happen. With that said we called in witness number one and this witness contradicted what the “victim” said happened. Then, we called in witness number two and that witness contradicted not only the “victim” but even the first witness. When done, the judge dismissed the case and politely suggested that the “victim” think twice about making these allegations again. Making an Evid Code 777 request and keeping the witnesses outside the courtroom until they are called into testify can help keep the trial fair and honest.

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Employers cannot change arbitration agreement after complaint made by employee.

In a recent case, the California Appellate Court ruled that an arbitation agreement between an employer and employee cannot be modified after the employer believes the employer may file a lawsuit, even if the arbitration agreement expressly allows the employer to modify the arbitration agreement. The Court held that allowing the employer to make changes to its arbitration agreement after the employer learns of a complaint by its employee makes the agreement illusory, and thus unenforceable. As the Court stated, ..."Were it otherwise, the employer could amend the contract in anticipation of a specific claim, altering the arbitration process to the employee‘s detriment and making it more likely the employer would prevail." See Amir Peleg v Neiman Marcus Group, Inc.

(by Attorney Angelo F. Campano at acampano@campanolaw.com)

Help maybe on the way for business owners from negative online reviews.

 (written by Angelo F. Campano, owner/Campano Law Group, http://www.campanolaw.com/)

Is your name or business reputation important to you? Have you or your business been negatively criticized on line by someone? Been told there is nothing you can do to stop it from happening? Well, there may be some alternatives available to help you... protect your name, your business and reputation from those anonymous online reviews that seem to pop up out of nowhere.

When a negative review is posted on line, it is almost impossible to find out who posted it. The person posting the review is allowed to hide their true name or even if they were a customer of the person/business they are criticizing. This is blatantly unfair to the business owner who has worked so hard and long to build their reputation, all to have it reviewed negatively by someone who may never have even stepped foot into your business. The other day I recently watched a “reality” television (I won’t disclose which show from the east coast) show where a person who blogged badly about the business turned out to never had been to the business or bought anything from that business. How is that fair to the business? It’s not. Yet, the law seems to give greater protection to the negative posters.

The law generally protects the actual website that hosts these reviews. That protection, however, may be changing since that protection is more and more taken advantage of by the websites. As for the people that post these anonymous reviews, the law is not as protective as one would think or like. The websites themselves, that allow you to post your review, are not in a rush to protect the people posting anonymous reviews. Ever read the “terms and conditions” you agreed to before you posted your review? If not, then read it because you will likely see that you, as the poster of the anonymous review, could end up having to pay back the very same website that allowed you to post your negative review. The very website you post your negative review on can end up being your enemy.

In the case of Wong v. Jing (2010) 189 Cal.App.4th 1354, the plaintiff, a dentist, received a bad review on line by a former patient’s parents. The dentist believed it to be defaming and sued both the patient’s parents who wrote the story and Yelp for posting it on its website. At some point in the case, Yelp was dismissed by the person suing. But, the people who wrote the story were not as lucky in having the entire case dismissed despite trying hard to do so. The defendants filed an anti-slapp motion claiming their stories were based on their right to speak. An anti-slapp motion can be very powerful device if sued for speaking out on certain subjects. The appeals court agreed that part of the lawsuit arose from protected speech but also ruled that the story was potentially defaming to the dentist and allowed that part of the lawsuit to go forward. The law does not protect defamation. That meant that the people who wrote the story could end up having to pay a lot of money for writing a story that falsely harmed the dentist’s reputation and business.

One aspect of the appellate court’s ruling that was very briefly discussed but of interest (well, maybe just of interest to those who like to read appellate court cases) and maybe of help to businesses, is that the appellate court made a distinction between equitable relief and causes of action and the use of anti-slapp motions. The appellate court ruled that that the anti-slapp motion, used often by the defense, does not apply to equitable relief. Rather, the motion only applies to causes of action.”…Specific performance and injunctive relief are equitable remedies and not causes of action for injuries”. See Wong v. Jing citing Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618 [129 Cal. Rptr. 2d 546]. So, the conclusion one can draw is that a business owner may prevail in its lawsuit against negative reviews by seeking equitable relief (e.g. removal of the negative review) rather than by just asking for monetary compensation.

To many business owners, the business becomes part of your family, which you want to protect. If you, as a business owner working hard to promote and protect your business and reputation, receive a negative anonymous online review, help may be on the way. The Wong v. Jing case helps suggests an alternative way for the business owner to protect itself from the anonymous online reviews that you, the business owner, may have thought that nothing can be done.

Employer has to pay again, maybe.

Who bears the loss when a settlement check is supposedly lost and cashed by forger? According to Court, the employer must pay another settlement check to former employee who claims original settlement check was stolen and cashed by thief. See Barrett Business Services, Inc. v. Workers Compensation Appeals Board