Articles & Press

Brown Law Group salutes the 2010  Southern California Super Lawyers, San Diego edition.  For the fourth consecutive year, Super Lawyers has selected Brown Law Group's founder Janice Brown as one of its top attorneys in 2010, under the practice area of Employment & Labor.  The selection recognizes Ms. Brown's continuing contributions to the field of law and client advocacy.

Super Lawyers are selected by their peers and represent the top 5 percent of the legal profession.  The magazine publishes the top lawyers for the year, arranged by practice area.  The Super Lawyers award is a great accomplishment and recognized nationally.  To see a full listing of top attorneys, please go to http://www.superlawyers.com.

A perspective from Adriana Cara:

Employers are holding their breaths once again as they await the California Supreme Court's decision in Reid v. Google Inc., expected in late August 2010. The already difficult legal landscape for California employers may become tougher to negotiate should the Supreme Court justices reject the "stray remarks doctrine," which has effectively prevented plaintiff employees from bringing tenuous cases of discrimination before a jury.

The "stray remarks doctrine" has been adopted by many federal circuit courts, including the 9th U.S. Circuit Court of Appeals. It allows a court to disregard discriminatory or harassing remarks that are either isolated or unrelated to the complained of adverse employment action (i.e., discipline, demotion or termination) for purposes of determining whether there is a triable issue of material fact that would warrant trying the matter on the merits.

In Reid, Google Inc. hired the plaintiff, Brian Reid, as Director of Operations and Director of Engineering. At the time of his hiring, Reid was 52 years of age. Google employed Reid for almost two years and during that time he received only one performance evaluation. The comments in Reid's evaluation were primarily positive, and described Reid, among other things, as having "an extraordinary broad range of knowledge concerning Operations, Engineering in general and an aptitude and orientation towards operational and IT issues." The one noted area of improvement in Reid's performance evaluation dealt with Reid's ability to adapt to the Google environment: "Adapting to the Google culture is the primary task for the first year here... Right or wrong, Google is simply different: Younger contributors, inexperienced first line managers, and the super fast pace are just a few examples of the environment."

Reid claimed he was ultimately terminated for the stated reason that he was not a "cultural fit" (notably, Google asserted during litigation that it decided to terminate Reid for substandard performance and because it had elected to eliminate the position to which Reid had been transferred prior to his discharge). Thereafter, Reid sued Google for unfair business practices under the Unfair Competition Law (UCL) based on discriminatory hiring practices, disparate treatment based on his age under the California Fair Employment and Housing Act (FEHA), wrongful termination, failure to prevent discrimination, and emotional distress.

Reid claimed that while employed at Google, he had been subjected to ageist remarks made by his coworkers and members of management. For example, Reid claimed that coworkers referred to him as an "old man," an "old fuddy-duddy," and joked that his office placard should be an "LP" instead of a "CD." Additionally, certain members of management told him his ideas were "obsolete," and "too old to matter," that he was "sluggish," "fuzzy," and "lethargic." Further, Reid argued that before his termination, he was demoted to a non-viable position (a veritable "way station") while younger employees assumed his previous duties.

Google maintained that the complained of comments were stray remarks that did not raise a triable issue of fact as to whether Google's stated reasons for terminating Reid were pretexual. As such, Google asserted, they were insufficient to support denial of summary judgment. On Google's motion, the trial court struck Reid's UCL claims and granted Google summary judgment on the remaining claims. One of the primary issues on appeal was whether the "stray remarks doctrine" relied on by Google could prevent Reid from bringing his case to trial.

In its Oct. 4, 2007 decision, the Court of Appeal declined to apply the stray remarks doctrine and reversed the trial court's grant of Google's summary judgment motion, stating: "We cannot view such a rule as anything other than the assumption by the court of a factfinding role." The Court of Appeal expressly criticized the Horn v. Cushman & Wakefield Western Inc. decision supporting the stray remarks doctrine. In Horn, the court held that an isolated and ambiguous comment "was at most a 'stray' ageist remark and is entitled to virtually no weight in considering whether the firing was pretexual or whether the decisionmaker harbored discriminatory animus." The Court of Appeal emphasized that the above-cited language in Horn "is all the more remarkable because the opinion elsewhere acknowledges that on summary judgment, "weighing of the evidence" is "prohibited."

On Jan. 30, 2008, the California Supreme Court agreed to review the Reid decision and oral argument in this matter was heard on May 26, 2010. The Court is expected to render its decision in late August of this year. Should the Court decide to invalidate the stray remarks doctrine, this will remove one of the few devices available to California employers that could protect them from the threat of a full-blown trial where the evidence against them is tenuous at best.

Regardless of how the Court comes down on this issue, the Reid decision provides some valuable lessons to employers:

Periodic Performance Evaluations: Employers should conduct performance evaluations on a regular basis (at least annually) and carefully document performance-related issues. Failing to do so will work against the employer should it later decide to discipline or terminate the employee on this basis. In Reid, the employee received only one evaluation over a 20-month period and Google never documented Reid's performance problems. This served to buttress Reid's argument that one of Google's proffered reasons for terminating him (poor performance) was pretextual.

Contents of Performance Evaluations and Written Reprimands: Employers must be careful about what they place in an employee's performance evaluation and in written reprimands to employees. Despite the best of intentions, words can easily be misconstrued. Terms such as "culture," and those relating to age or any other protected status should be avoided. When in doubt, consult with experienced counsel.

Rely on Objective Criteria When Disciplining or Terminating an Employee: Employers must think carefully before disciplining or terminating an employee, especially when they are members of a protected class. If it cannot justify the decision based on objective criteria (performance or a reduction in force), the employer faces substantial legal exposure.

Have an Effective Harassment and Discrimination Policy in Place: Employers should have in place a written policy prohibiting harassment and discrimination. An effective policy will set forth clear reporting procedures for employees to follow if they believe they are being subjected to harassment or discrimination in the workplace. An employee who fails to seek redress as set forth in the policy will have a more difficult time showing that the employer actually knew of the discrimination and/or harassment and should have taken steps to prevent it.

Severance Pay in Exchange for General Release: Depending on the circumstances, employers should consider offering employees severance pay in exchange for their release of all employment-related claims. An effectively prepared severance agreement and general release can help employers informally resolve employment-related disputes before litigation ensues. Employers should consult with experienced employment law counsel in preparing such an agreement.

Arbitration Agreements: Employers should consider having employees sign arbitration agreements as a condition of employment. Like a successful summary judgment motion, it prevents employees from bringing their case before a jury. Juries can often be unpredictable and, in many cases, sympathetic to employees since most members of a jury are employees themselves. Although arbitrating a dispute still requires an employer to defend a case before a trier of fact (an arbitrator), it is usually considerably less expensive than a trial and removes the uncertainly of a potential runaway jury.

Adriana Cara is a senior associate at Brown Law Group in San Diego. Her practice focuses on labor and employment law. Her clients include public employers, non-profit corporations, and those in private sector industries.

A perspective from Bryce Clark Besser:

On April 19, 2010, the U.S. Supreme Court heard oral argument in the highly publicized and eagerly anticipated case of City of Ontario, California v. Quon. The media buzz surrounding this case caused the public to begin forming a line outside the courtroom at noon the day before. Through a fortunate bit of luck however, I had a guaranteed spot in the courthouse having participated in a swearing-in ceremony before the justices early Monday morning.

Quon, the High Court must decide whether a reasonable expectation of privacy extends to text messages sent from a work issued paging device by an employee, and whether the employer's review of the text messages was reasonable. Jeff Quon was an Ontario California SWAT officer who was issued a pager by the Ontario Police Department. Under the department's policy, an employee was allotted 25,000 characters as part of the plan and was required to pay for characters exceeding that amount. After Quon and other SWAT members began receiving numerous overage charges from the wireless carrier, the department decided to review the text messages to determine whether employees were using the pager more for personal use and whether it should increase the character allotment for each employee. The department therefore collected the text messages from Arch Wireless, which provided the text message service and stored text messages for the department. Upon reviewing Quon's messages, the department found that the majority of the texts were non-work-related and in many instances, sexually explicit.

Quon sued the department, the city of Ontario, and individual officers for violation of the Stored Communications Act and for violation of his Fourth Amendment right to privacy. According to the department, there was a written policy stating that employees did not have any reasonable expectation of privacy in electronic devices provided by the department. Thus, the employee did not have any expectation of privacy in the text messages. Quon argued that he did have a reasonable expectation of privacy in his texts because of the oral policy whereby his supervisor, Lieutenant Steve Dukes would not "audit" messages if the employee paid the overage charges. The 9th Circuit agreed with Quon on the ground that the promise not to inspect the messages created an expectation of privacy.

During oral argument before the Supreme Court, Kent Richland, attorney for the city, argued that no reasonable expectation of privacy existed "vis-à-vis the Ontario Police Department in text messages on his department-issued pager in light of the operational realities of his workplace, which included the explicit no privacy in text messages policy." The Deputy Solicitor General for the Department of Justice supported this argument stating, "[w]hen a government employer has a no-privacy policy in place that governs the use of work technologies, ad hoc statements by a non-policy member cannot create a reasonable expectation of privacy. Put most simply, the computer help desk cannot supplant the chief's desk." Interestingly, Richland also stated that oral representations made by supervisors were not inconsistent with the written policy because Lieutenant Duke stated, "the text messages were considered public records and could be audited at any time."

Chief Justice John G. Roberts Jr. appeared to be the loan dissenter among the justices regarding the city's argument, stating, "I think if I pay for it, its mine and not the employer's." Chief Justice Roberts also noted the increased difficulty in determining what a reasonable person would believe is private in light of the public's differing comfort level with emerging technologies stating, "I suspect it might change with how old people are and how comfortable they are with the technology when you have all these different-different factors." The other justices appeared to agree with the city's position including Justice John Paul Stevens who suggested that SWAT members would expect their texts would be public record asking, "Wouldn't you just assume that the whole universe of conversations by SWAT officers who were on duty 24/7 might well have to be reviewed by some member of the public or some supervisor?"

In regards to the reasonableness of the search, Justice Stephen G. Breyer seemed skeptical that the search was unreasonable. Justice Breyer repeatedly pressed counsel for Quon to show him why the search was unreasonable. Justice Breyer asked, "what is wrong with the supervisor deciding, I don't want to do this anymore? I don't want to collect all this money; it's too complicated.... What is unreasonable about that?" Counsel for Quon appeared to have no response for Justice Breyer, suggesting at one point that the department could have asked the individual officers to audit their own text messages. Justice Breyer apparently believed this was not an effective alternative noting that employees would not accurately count their personal messages. Justice Sonia Sotomayor agreed stating, "you are relying on the very person you are auditing to do the audit for you. That doesn't seem either practical or business-wise."

Employers nationwide are eagerly anticipating the Supreme Court's decision as a broad ruling from the high court could have sweeping effects to employment law. However, due to the unique factual situation and problems with the factual record, it is possible that justices will issue a limited ruling that might provide little to no guidance to private employers regarding the issues of privacy for work related text messages, e-mails, and other electronic communications. Regardless, Quon highlights the importance for employers to reexamine their privacy policies to ensure that they account for the emerging technologies that are flooding the workplace.

With the emergence of technologies that allow work related devices to text, e-mail, and even surf the Web, it is imperative that employers ensure their policies specifically state messages received and sent, and the data viewed over the Web on such devices, are not private and can be reviewed by the employer. Further, employers should ensure that all employees and supervisors are informed regarding the changes. Moreover, employers should ensure that all persons in a managerial or supervisory position do not make any oral representations or utilize any informal policies that are inconsistent with the written policy. Thoughtful reflection about the types of technologies utilized, and diligence regarding the revision and implementation of the employer's privacy policies, should limit the risk that an employee will mistakenly believe they have privacy rights for messages and data viewed through work issued mobile devices.

Bryce Besser is an associate at Brown Law Group in San Diego. He has represented clients in the defense of various employment law claims including discrimination, retaliation, and wrongful termination. He has also counseled clients in trade secrets litigation, contracts disputes, and various tort disputes. He can be reached at besser@brownlawgroup.com.

Brown Law Group, a leading San Diego business litigation law firm, announced that Adriana Cara has joined the firm.  Ms. Cara’s practice focuses on labor and employment law, advising management on federal and state employment law compliance.  Ms. Cara also defends employers against claims brought against them for wrongful discharge, discrimination, sexual harassment, retaliation, and wage and hour disputes.

Brown Law Group salutes the finalists and honorees including its own Stacy Fode at the San Diego Business Journal 16th Annual Women Who Mean Business Awards. This event recognizes dynamic women business leaders and role models, selected for their achievements and contributions to San Diego.

Ms. Fode has established herself with the legal profession, clients and the community as a smart, hard-working, optimistic force.  Her ethical approach to the practice of law combined with her unwavering efforts to advance the status of women in the profession, has earned her respect from a high level of recognition.

Ms. Fode is currently vice president of the board of directors of the San Diego County Bar Association and is the past president of Lawyers Club of San Diego.  She is also an active member of many professional and law-related organizations.  She has been a frequent speaker on employment and diversity related issues and has appeared on television segments discussing these topics.  In addition, she has published several articles on employment and related issues and regularly conducts employment-related training seminars.

Brown Law Group, a leading San Diego business litigation law firm, has become a proud sponsor of the Association of Corporate Counsel – San Diego Chapter (ACC-SD).  The ACC-SD serves as the in-house bar associationsm for attorneys who practice in legal departments of corporations and other private sector organizations in the greater San Diego area.

“Brown Law Group strongly supports the mission of the Association of Corporate Counsel,” said Janice Brown, founder and CEO of Brown Law Group.  “We’re proud to become an active sponsor of one of the most active chapters of the ACC.”

According to Elizabeth Daniels, President, Association of Corporate Counsel, San Diego Chapter, and Chief Legal Counsel, SIMNSA Health Plan, support from organizations like Brown Law Group enables the ACC to deliver high quality MCLE, networking and educational events for its membership, and the deliver pro-bono and community service outreach.

Brown Law Group is honored to participate as Editor of the NAMWOLF newsletter, and looks forward to promoting NAMWOLF's mission in this capacity. We are committed to bringing you interesting features, announcements and successes, and corporate interviews on a quarterly basis, but we need your help. Please submit your contributions and articles to Stacy Fode at fode@brownlawgroup.com or Farzeen Essa at essa@brownlawgroup.com no later than March 12, 2010 to be included in the next newsletter.

This month's newsletter includes the following:

• Message from the Chairman
• Welcome New Members
• Spotlight: Member Firm - Concepcion Sexton & Martinez
• Spotlight: Financial Contributor - MillerCoors 
• Law Firm News & Successes
• NAMWOLF - "Where everyone knows your name"
• "Thoughts of a First Time Annual Meeting and Expo Attendee"

Click here to access the NAMWOLF Quarter 4 Newsletter