About That Office Party

  
In a recent decision, the California Court of Appeal held that an employer can be held liable for injuries from a car accident caused by a drunk employee who consumed alcohol at an office holiday party.  As a result, many employers will have to reconsider the wisdom of serving alcohol at company sponsored events.  

In December 2009, the Marriott Del Mar Hotel held its annual holiday party for employees and management. Employees were not required to attend the party. Before the party, Joseph Emma, the hotel's assistant general manager, and Sarah Hanson, the department head or general manager of the restaurant, decided that they would only serve beer and wine and each person attending the party would receive two drink tickets.

Bartender Michael Landri did not work on the day of the party.  Before the party, Landri drank a beer and a shot of whiskey at his home.  Page Savicki drove Landri and his flask of whiskey to the party.

Sarah Hanson served as the bartender at the party.   During the party, Hanson had a bottle of whiskey from the hotel's liquor supply brought to the bar.   Landri refilled his flask at least once.  After approximately, three hours Savicki, Landri and other people left the party.  There is some dispute about whether Savicki or Landri was driving the car.  Landri did not consume any alcohol after leaving the hotel.  

Approximately 20 minutes after arriving to his home, Landri decided to drive home a coworker that had become intoxicated at the party.  During the drive, Landri struck a vehicle driven by Dr. Jared Purton, killing Dr. Purton. Shortly after the accident, Landri had a .16 blood alcohol level.  Landri pleaded guilty to gross vehicular manslaughter while under the influence of alcohol and received a six-year prison sentence.

Dr. Purton's parents filed a wrongful death claim against Landri, Marriott and several others.  Marriott contended that it was not liable because the accident did not occur within the scope of Landri's employment.  The trial court granted Marriott's motion for summary judgment.

The Court of Appeal, however, reversed the trial court decision holding that at reasonable trier of fact could find that Landri acted negligently by becoming intoxicated at the party, that this act was within the scope of his employment and proximately caused the car accident that resulted in Dr. Purton's death.  

The Court stated that under California law an employer may be liable for an employee's torts as long as the proximate cause of the injury occurred within the scope of employment.  The court stated that it is irrelevant that the foreseeable effects of the employee's negligent conduct occurred at a time when the employee was no longer acting within the scope of his or her employment because there was sufficient evidence that Landri breached a duty of care by becoming intoxicated at the party.  

The Court also found that Landri was acting within the scope of his employment when he became intoxicated at the party because the party and the drinking of alcohol beverages were a conceivable benefit to Marriott and a customary incident to the employment relationship.  The hotel's assistant manager testified that the hotel held the party as a thank-you for its employees.  Another purpose of the party was "celebration, employee appreciation, holiday spirit and team building."  The evidence also suggested that Marriott impliedly permitted employees to consume alcohol on the job.  

Although Marriott contended that it should not be potentially liable because the accident occurred after Landri had reached his home, the Court rejected this argument stating that if a trier of fact concludes that the proximate cause of the accident occurred within the scope of employment, there is no reasonable justification for cutting off an employer's potential liability simply because an employee reaches home.  The court further stated that Marriott could have lessened the risk of harm by having a policy prohibiting smuggled alcohol, enforcing its drink ticket policy, serving drinks for a limited time period and serving food or forbidding alcohol.  

The court stated that a trier of fact should determine whether Landri's act of leaving him home shortly after arriving from a party to drive a fellow employee home was so unusual or startling so as to render the car accident unforeseeable.  

Employers should examine their past policies regarding alcohol at office parties to determine whether such policies need to be modified to minimize the risk of liability for accidents caused by employees after the parties.  The opinion suggested options to reduce such risk, including eliminating alcohol at all office parties.   
         


         

  

   

NEW CALIFORNIA EMPLOYMENT LAWS

             The California Legislature has passed and Governor Brown has signed the following significant employment laws that will become effective on January 1, 2013:

            AB 2674 (Swanson)  - This law amends Labor Code §§ 226 and 1198.5 to require employers to provide employees with a copy of their personnel records and provides that an employer may provide a duplicate or a computer-generated record in response to a request for a copy of an employee’s itemized wage statements. 

            Wage Statements -  Current law requires employers to keep a copy of itemized wage statements for three years.  AB 2674 amends Labor Code § 226 to provide that a copy includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information required to be included in the wage statement.

            Under current law, an employee suffering injury resulting from an employer’s knowing and intentional failure to provide accurate wage statements is entitled to recover the greater of actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,00) and is entitled to an award of costs and reasonable attorney’s fees.  AB2674 amends Labor Code § 226 to state that an employee is deemed to suffer injury if the employer fails to provide a wage statement.  In addition, an employee is deemed to suffer injury if the employer fails to provide accurate and complete information required in the wage statement and the employee cannot promptly and easily determine:

            1)  the amount of the gross or net wages paid to the employee during the pay period;

            2)  the total hours worked by a non-exempt employee;

            3)  the number of piece-rate units earned if the employee is paid on a piece rate basis;

            4)  all deductions; 

            5)  the inclusive dates of the period for which the employee is paid;

6)  all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate;

7)  which deductions the employer made from gross wages to determine the net wages paid to an employee during the period;

8) the name and address of the employer; or

9) the name of the employee and only the last four digits of a social security number or an employee identification number.

            Personnel records:  Under Labor Code § 1198.5, every employee has the right to inspect his or personnel records that employer maintains relating to the employee’s performance or to any grievance concerning the employee.  AB2674 amends Labor Code § 1198.5 to provide that both current and former employees have a right to inspect and copy these records.  AB 2674 further amends Labor Code § 1198.5 to provide that the employer is provided to make the personnel records available for inspection by the current or former employee or his or her representative or provide a copy of the documents within 30 calendar days from the date the employer receives a written request, unless the employer and the employee, former employee or his or her representative agree in writing to an extension of time, not to exceed 35 calendar days from the receipt of the request to inspect or receive a copy of the documents.  The employer may charge a cost to provide a copy of the documents, not to exceed the actual cost of production of the documents.

            AB 2674 amends Labor Code § 1198.5 to require employers to maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment.  AB 2674 also amends Labor Code § 1198.5 to provide procedures for inspection of documents.  In addition, AB 2674 amends Labor Code § 1198.5 to provide that an employer is required to comply with one request per year by a former employee to inspect or receive a copy of his or her personnel records.   AB 2674 also amends Labor Code § 1198.5 to provide that the employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative and may designate the person to whom the personnel records request must be made.  Further, AB 2674 amends Labor Code § 1198.5 to provide that prior to making the personnel records available for inspection or copying, the employer may redact the name of any nonsupervisory employee from the records.

            AB 2674 also amends Labor Code § 1198.5 by providing that if an employer fails to permit a current or former employee or his representative the right to inspect or copy personnel records, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) for the employee.  The employee may also bring an action for injunctive relief and may recover costs and reasonable attorney’s fees in such an action.

            AB 2674 also amends Labor Code § 1198.5 to provide that if an employee or former employee files a lawsuit that relates to a personnel matter against his or her employer or former employer, the right of the employee, former employee, or his or her representative to inspect or copy personnel records under this ceases during the pendency of the lawsuit in the court with original jurisdiction.  AB 2674 also amends Labor Code § 1198.5 to provide that an employer is not required to comply with more than 50 requests for inspection or copying of personnel records filed by a representative of employees in one calendar month.

            AB 2675 (Swanson) -  Employment contract requirements – commissions.  Pursuant to Labor Code § 2751, whenever an employer enters into a contract of employment with an employee for services to be rendered within California and the contemplated method of payment of the employee involves commissions, the contract must be in writing and set forth the method by which the commissions are to be computed and paid.  AB 2675 amends Labor Code § 2751 to exempt from this requirement temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.

            AB 2389 (Allen) - Employment and housing discrimination: sex: breastfeeding.  Pursuant to Government Code § 12940, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations because of sex.  Pursuant to Government Code § 12926, under existing law, “sex” is defined for the purposes of the act to include, gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth.  AB 2389 amends Government Code § 12926 to provide that for the purposes of the act, the term “sex” also includes breastfeeding or medical conditions related to breastfeeding.  AB 2389 also amends Government Code § 12926 to state the changes made by AB 2389 are declaratory of existing law.

            AB 1844 (Campos) - Employer use of social media.  AB 1844 creates a new law codified at Labor Code § 980 that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or divulge any personal social media.  The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or a demand by the employer to provide the employer with access to personal social media. 

Labor Code § 980 provides that it does not affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

Labor Code § 980 also provides that it does not preclude an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

AB 1964 (Yamada) – Discrimination in employment:  reasonable accommodations.  Under existing law, the California Fair Employment and Housing Act (Government Code § 12900 et. seq.) protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.  Under current law, an employer or other covered entity is required to provide a reasonable accommodation to the religious belief or observance of an individual unless the accommodation would be an undue hardship on the conduct of the business of the employer or entity.  AB 1964 amends Government Code § 12926 to provide that “Religious creed” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice, including religious dress and grooming practices.  “Religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.  “Religious grooming practice” shall be construed broadly to include all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed.  AB 1964 amends Government Code § 12940 to provide that an accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.  AB 1964 also amends Government Code § 12940 to provide that an accommodation is not required if it would result in a violation of any other law prohibiting discrimination or protecting civil rights.

How to increase the odds that an employment lawyer will take your case.

You have a work related problem.  You are being sexually harassed, being denied overtime, or you are being threatened with termination.  You would like to hire a lawyer to represent you.  Although many employees contact lawyers for help, most of the time the attorneys will not represent them.  Often, the attorney makes the decision not to represent the potential client within the first two to three minutes of the contact.  Here are some tips to increase the likelihood that a lawyer will take the case.

            1.    BE PREPARED  - When you contact the lawyer, the lawyer will attempt to access whether you have a decent case as quickly as possible.  Therefore, you need to be able to give the lawyer relevant information in a hurry.  Be prepared to tell the lawyer where you work, how long you have been there, your position, your salary, and the most recent event that led you to call the lawyer on that particular day.  Have any and all relevant documents with you when you call.  For example, if you have been terminated, have the termination letter available when you call.  

           2.    DON'T SELF DIAGNOSE -  Although it is tempting to call the lawyer and say, "I have been wrongfully terminated," don't do it.  It is far better to tell the lawyer the recent factual events that caused your call, rather than to present the lawyer with a self diagnosis.  On many occasions, when the potential client presents the diagnosis, the facts don't state a claim as a matter of law.  Further, when the potential client is trying to shoe horn the facts into one legal theory, it may prevent the lawyer from asking questions that may lead the lawyer to a more viable claim.  Of course, there are exceptions to this rule.  Sometimes it is completely obvious that someone has been sexually harassed or discriminated against, but even then tell the lawyer what happened.  They will confirm your conclusion.

           3.    TELL THE LAWYER THE MOST RECENT EVENTS FIRST -  Although you may have a long and tortured history with your employer, tell the lawyer about the most recent event first.  If the potential client starts the conversation with a monologue about events that occurred years before, the lawyer starts to tune out because the events are probably barred from suit by the applicable statute of limitations.  Although something horrible may have happened five years ago, something led you to call today.  Start the conversation with those facts.  

           4.    EARLIER IS BETTER THAN LATER  - If you are having problems at work, it is often easier to find a lawyer to help when the problems begin rather than later.  A lawyer probably will be able to do more to help you when you are put on a Performance Improvement Plan, rather than after you have been terminated.  Similarly, a lawyer is more willing to help you before you go to the EEOC or you file a lawsuit, rather than after you have done those things yourself.  

            5.   KNOW WHAT YOU WANT -  Before you call or write a lawyer, know what you want the lawyer to do for you.  Do you want to stay on the job?  Do you want a severance?  If so, how much?  Do you want to file a lawsuit?  Why?  If you know what you want, it will assist the lawyer develop a strategy to help you.

            6.  REMEMBER, THE LAWYER IS ASSESSING YOU AS A WITNESS -  It is important to make a coherent presentation during your initial contact with the lawyer because during that very first encounter, the lawyer is trying to imagine you as a witness on the witness stand.  If you cannot make credible presentation, the lawyer may not take your case even if it is a good one.  Practice your presentation before you call or write. 

            7.   BE UPFRONT ABOUT THE NEGATIVE FACTS -  Employment relationships are often complicated.  Although you may have made an error, it still might not excuse the employer's behavior.  You should, however, be upfront with the lawyer about any negative facts in your work history.  Sometimes, it may not matter.  If it does, however, you are better off finding out now rather than years later.

             8.  DON'T BE SECRETIVE -  Try to be as open as possible during the initial conversation.  For example, the lawyer needs to know the name of the employer and the other people involved to make sure there isn't a conflict.  If the lawyer has to pull teeth to get even basic information, the lawyer will pass on the case.  

             9.  DON'T TAKE IT PERSONALLY IF THE LAWYER DECLINES THE CASE -  There can be any number of reasons why a lawyer will decline a case, even a good one.  Some lawyer will not represent government or union employees.  Others may not take cases involving certain subject matters.  Some lawyers will not take cases in certain counties.  Some will not take cases in federal court.  Some will not take a case unless the damages exceed a certain threshold.  Just because one lawyer won't take it, it doesn't mean that every lawyer will decline the case.

            10.  ASK FOR A REFERRAL - If you have talked to a lawyer who has declined your case, ask the lawyer to refer you to another lawyer.  The next lawyer is much more likely to respond if it is referral from a friend.

Jocelyn Burton is an attorney at Burton Employment Law, 1939 Harrison Street, Suite 924, Oakland, CA 94612, tel:  (510) 318-6316,   e-mail:  jburton@burtonemploymentlaw.com, www.burtonemploymentlaw.com