Archives for Employment Law

Christopher Wesierski and Christian Counts Awarded Top Defense Case by Daily Journal

Congratulations to Christopher Wesierski and Christian Counts on being featured as the Daily Journal’s Top Defense Case of the week. The case was a wrongful termination and discrimination case with eight causes of action stemming from the plaintiff’s alleged disability. Although, a difficult case, Chris and Christian were able to seamlessly convince the jury of the unanimous defense verdict. The verdict was reached in less than thirty minutes.Chris christian (I0682138xC2BA8)

Two Unanimous Defense Verdicts for Christopher Wesierski in 5 Weeks

In a five week period, Chris Wesierski tried two cases out of Orange County that returned an unanimous defense verdict in under 30 minutes for each.

In the most recent case, plaintiff claimed wrongful termination and discrimination with eight causes of action alleged. Chris Wesierski and Christian Counts worked diligently and obtained a unanimous defense verdict in about thirty minutes.

Before that verdict, Chris Wesierski and Andres Camacho obtained another unanimous verdict in about twenty minutes. The plaintiff claimed injuries with a couple hundred thousand in medical bills and defendant admitted liability for the accident.

Congratulations to Mr. Wesierski on both verdicts.

Chris Wesierski and Christian Counts selected as Top Defense Verdict Of The Week by the Daily Journal

For the eighth time in the last three years, one of the cases Chris Wesierski handled was selected as a Top Defense Verdict of the Week by the Daily Journal.

In this case, Chris Wesierski and Christian Counts defended a car dealer who was accused of sexual harassment and wrongful termination. The pair of them convinced a jury that the conduct was consensual and not a situation where the car dealer should be held liable. The other side was asking for significant money and attorney fees.

Chris Wesierski has even had two of his cases selected as the Top Defense Case of the Year by Daily Journal because of the difficulty in winning the cases and the favorable outcome for his client with the facts in each case against the defense.

Christian Counts Selected as One of Top 100 Labor & Employment Lawyers in California for 2016

countsWesierski & Zurek LLP is proud to congratulate Junior Partner Christian Counts on his selection by the American Society of Legal Advocates as one of the Top 100 Labor & Employment lawyers in the State of California for 2016.  The invitation-only ASLA selects its Top 100 winners from fewer than 1.5% of lawyers nationally, based on peer nominations and attorney review.  Wesierski & Zurek joins the ASLA in applauding Mr. Counts’ achievement.

California Employers Can Learn from the NFL’s Recent Mishandling of Employee Misconduct

By: Christopher P. Wesierski and Patricia M. Alleborn

Football season has just begun, but America has been tuning in to more than just the game. NFL players’ off-the-field misconduct have been making headlines. Last week, TMZ released a graphic video of Ravens player Ray Rice punching his then-fiancé, now-wife Janay Palmer Rice, knocking her unconscious, and impassively dragging her body out of an elevator. Following the release of the video, Rice’s original punishment from the NFL, a two-game suspension for violating the Public Conduct Policy, was increased to an indefinite suspension from the league. Five days later, Vikings player Adrian Peterson, considered one of the best running backs in the league, was indicted for reckless or negligent injury to his child. Peterson reportedly used a switch, a small tree branch stripped of leaves, to repeatedly strike his four year old son. Peterson maintained that he was disciplining the child and any injuries were unintentional. A second accusation has since surfaced that Peterson was involved in a separate, prior incident of child abuse. Thus far, Peterson’s team only suspended him for one game. On July 15, Panthers Greg Hardy was convicted of assaulting and threatening his ex-girlfriend. The Panthers permitted Hardy to play the first game of the season, but after receiving public criticism, decided to deactivate Hardy until further notice. The NFL has not penalized either Hardy or Peterson until resolution of their criminal cases. These scandals have caused a PR nightmare for the NFL and ignited national criticism towards how the NFL deals with its’ players’ off-the-field, violent behavior. More broadly, these scandals help illustrate four guidelines that California employers can follow to protect themselves from liability, as well public criticism, when handling off-duty employee misconduct.

First, before determining appropriate disciplinary action, employers should conduct an adequate investigation. The NFL’s investigation into Rice’s misconduct was obviously inadequate. The NFL never asked the Casino for a copy of the surveillance video, who later stated it would have provided it upon the league’s request. It also alleged that the NFL had received the video five months prior to its release. The NFL should have made every effort to investigate facts, speak with eyewitnesses, and ask for any surveillance footage. After conducting an adequate investigation, the NFL should have afforded an opportunity for Rice to be heard. Only after proper consideration of all of the facts, should the NFL have determined the appropriate punishment. Now, without any justification for its failure to obtain and/or view the video, America is wondering what happened. The inadequate investigation suggests that someone is lying or the NFL simply turned a blind eye to keep a star player on the field. The NFL and Commissioner Roger Goodell’s integrity have been undermined. When the community sees that an employer, such as the NFL, mishandles an investigation, it can be just as damaging to the company’s reputation as the misconduct itself.

Second, employers need to develop clear, written policies governing off-duty misconduct. The Rice situation shows that inconsistent and ambiguous policies may undermine the policies’ effectiveness and provide grounds for an employee to evade discipline. The league’s Public Conduct Policy gives the Commissioner the authority to indefinitely suspend players. Article 46, Section 4, of the NFL’s collective bargaining agreement is essentially a prohibition against double jeopardy; it prohibits a player from being punished twice for the same conduct. Despite the Commissioner’s authority to suspend Rice, the NFL Player’s Union has a strong basis for appealing Rice’s suspension on the grounds that Rice’s suspension violated Article 46, Section 4, in two different ways: first, the Ravens dropped Rice and then the NFL punished him second time by issuing an indefinite suspension; and, secondly, the NFL punished Rice on two different occasions for the same misconduct. By failing to have clearly defined policies and procedures, the NFL may be forced to reinstate Rice and possibly be held liable for his losses incurred as a result of the unauthorized discipline.

Third, any disciplinary action must fit the crime and be consistently applied to all employees, regardless of an employee’s value to the company. A month after Rice’s original two-game suspension, the NFL suspended Broncos player Matt Prater for (according to his attorney) drinking beers on vacation, which was in violation of the league’s substance abuse policy. Prater was suspended four games, receiving twice the punishment Rice originally received. There is no reasonable basis for this disparate treatment among players. Critics suggest that the punishment is adjusted according to the player’s value. Employers would do well to avoid such inconsistent disciplinary action within their own companies. Otherwise, a California employee could use the disparate treatment as a basis for alleging that he or she was discriminated against.

Lastly, the policies must be fairly and equitably enforced. Under the NFL’s personal conduct policy, the league may suspend a player “for failing to avoid conduct detrimental to the integrity of, and public confidence in, the NFL.” America is suspicious of the recent influx of domestic violence cases. The pattern of domestic violence among players suggests that this is either horrible happenstance, or the NFL has covered up other instances of abuse. Employers should not wait to dole out disciplinary action if and when the misconduct becomes publicly known. There needs to be a common understanding of what conduct constitutes a breach of policies and that conduct needs equitably enforced.

This article is a cursory overview of lessons employers can learn from recent NFL mishandling of employee misconduct. For over 25 years, Wesierski and Zurek LLP has regularly advised employers regarding work place issues, including how to protect themselves from liability when handling off-duty misconduct. If you are an employer and need further assistance navigating this difficult field, please contact us.

California Firefighters Entitled To Review And Comment On Supervisor’s Daily Logs Under FFBOR

November 12, 2013

By:  Kyle E. Rowen

UPDATE:  On February 26, 2014, the California Supreme Court granted the petition for review filed by the Orange County Fire Authority in the case of Poole v. Orange County Fire Authority.  (Supreme Court case no. S215300.)  Therefore, pursuant to California Rules of Court, Rules 8.1105(e)(1) and 8.1115(a), the opinion of the Court of Appeal discussed below is no longer considered published and cannot be cited or relied upon in any other action.  We will follow this case and provide a further update once an opinion is issued by the California Supreme Court. 

The Firefighters Procedural Bill of Rights (FFBOR) provides in Government Code section 3255 that “a firefighter shall not have any comment adverse to his or her interest entered in his or her personnel file, or any other file used for personnel purposes by his employer, without the firefighter having first read and signed the instrument containing the adverse comment indicating he or she is aware of the comment….”  Division 3 of California’s Fourth District Court of Appeals issued a decision on November 4, 2013, in the case of Poole v. Orange County Fire Authority that a supervisor’s daily logs of a firefighter, which are then used by the supervisor for personnel purposes and for preparing the firefighter’s annual evaluation, are subject to the provisions of FFBOR.

In Poole, the facts are as follows.  Poole worked for the Orange County Fire Authority as a firefighter and was assigned to work at one of OCFA’s stations under the direction of a captain.  The captain at this station made handwritten and computerized notes, referred to as daily logs, regarding the performance of each of the employees he supervised.  The captain then used these daily logs to assist him in preparing performance evaluations for his employees.  These daily logs documented the efficiency of the captain’s employees, including whether the individual firefighter had complied with instructions and had adhered to the agency’s rules.  The daily logs, however, were not entered into OCFA’s official personnel file that were kept at its headquarters.  Rather, they were merely kept by the fire captain at the assigned station.

Subsequently, based in part upon the captain’s daily logs, Poole received a substandard performance evaluation and he was thereafter placed on a performance improvement plan.  At first, Poole did not know the captain’s daily logs existed.  Eventually, however, Poole’s union representative learned about the logs and then wrote to OCFA requesting that all of these adverse comments be removed from Poole’s “personnel file” that the captain kept at the station.  OCFA refused and contended that while the daily logs were intended for personnel purposes, they were never “entered” into Poole’s official personnel file.  Further, OCFA stated that to the extent an adverse comment from the daily logs made it into Poole’s personnel file, it would be included as part of his performance evaluation, and Poole would be provided an opportunity to review and sign, as well as respond to the performance evaluation.

Following a court trial, the trial court found the captain’s daily logs were merely kept to assist him in preparing an employee’s annual evaluation and were not a part of Poole’s personnel file.  Thus, the daily logs were not subject to Government Code section 3255’s prohibition under an employer entering adverse comments into a firefighter’s personnel file until such time as the firefighter has read and signed the document containing the adverse comment.

The Court of Appeals reversed the trial court’s decision and found the captain’s daily logs were used for personnel purposes and, therefore, subject to the protective procedures contained in FFBOR.

As stated above, Government Code section 3255 prohibits the employer of any firefighter from entering an adverse comment in his or her personnel file, including any other file used for personnel purposes, without allowing the firefighter to read and sign the document containing the adverse comment.  In addition, if an adverse comment is entered into a firefighter’s personnel file, the agency must allow the firefighter 30 days to file a written response.  Any written response must then be attached to the adverse comment entered into the firefighter’s personnel file. (Government Code section 3256).

When the legislature enacted FFBOR, it was their intent to mirror the protection afforded to police officers under the Public Safety Officer’s Bill of Rights Act (POBOR).  Similar to FFBOR’s provision in section 3255, section 3305 and 3306 of POBOR contain the same rights for public safety officers regarding adverse comments entered into their personnel file or any other file used for personnel purposes, and their ability to file a written response within 30 days.

Prior to this decision, it does not appear that there has been any published case in California dealing with whether a supervisor’s daily logs would be subject to an employee’s rights to review and comment on any adverse statement under FFBOR and POBOR.

In concluding that the supervisor’s daily logs were subject to review and comment provisions in FFBOR, the court noted that the purpose behind granting the firefighter this right would be stifled and contrary to the legislature’s intent in enacting this statutory protection.  The general purpose the court found in having the provision within FFBOR was to allow the firefighter the right to review his or her personnel file and to comment on any adverse statements that may potentially affect the firefighter’s employment status.  The court found that the information contained in the supervisor’s daily logs was presented to Poole’s superiors within the OCFA and ultimately led to Poole’s sub-standard performance evaluation and placement on a performance improvement plan.

Specifically, the court found that, “FFBOR’s purpose of providing firefighters a right to meaningfully respond to adverse comments that may affect personnel decisions concerning the firefighter [Citation] is frustrated when the firefighter’s supervisor maintains a daily log containing adverse comments that may reach as far back as the day after the firefighter’s last yearly evaluation and the adverse comments are not revealed to the firefighter until the next yearly review, at which point the firefighter may respond to the adverse comments in that review.”  In reaching this conclusion, the court found that a firefighter “could not be expected to remember the details of the same events months and months later when he was finally made aware of the adverse comments in the course of a yearly performance review.”

This case will have far reaching implications for all fire departments and law enforcement agencies in California.  A supervisor maintaining daily logs regarding the activity of their subordinates is, in many agencies, a common practice.  Indeed, some may argue it is a best practice for supervisors to maintain daily logs because it will allow them to prepare a more thorough and accurate annual performance evaluation.  Unless this case is de-published, overturned, or the legislature amends the statutes, supervisors who maintain daily logs should be advised to allow their subordinate peace officers and firefighters to review, sign, and respond to any adverse comments prior to it being entered into any other file used for personnel purposes.

As with all legal issues, it is important that a fire department or law enforcement agency seek out the advice and guidance from their own legal counsel.  As always, if you wish to discuss this case in greater detail, please feel free to contact me at 949-975-1000 or vial email at

Kyle Rowen is an attorney at Wesierski & Zurek, LLP and handles matters involving governmental tort liability, police liability, employment law, the Americans with Disabilities Act, municipal law, land use, and premises liability.

The information provided above is for general use and it is not legal advice.

Wage & Hour Class Actions May Allege State and Federal Claims

April 15, 2013

By:  Christopher P. Wesierski and Ashley A. Reagan

Plaintiffs Jesse Busk and Laurie Castro are former employees of Defendant Integrity Staffing Solutions, Inc., which provides warehouse space and staffing to clients such as  Plaintiffs worked as hourly employees in warehouses located in Las Vegas and Fernley, Nevada.  Plaintiffs sued Defendant on behalf of a putative class of workers in both warehouses alleging that Defendant violated federal and state labor laws by requiring them to pass through a security clearance at the end of each shift.  The clearance sometimes took up to 25 minutes and they were not compensated for this time.  Plaintiffs additionally sought compensation for their 30 minute unpaid meal period because 10 minutes of this break was spent walking to and from the cafeteria and going though security.   

The district court granted Defendant’s motion to dismiss for Plaintiffs’ failure to state a claim, finding that the time employees spent passing through security screening was not compensable.  Further, the district court held that Plaintiffs failed to state a claim related to their shortened meal period allegations.  The state claims were dismissed due to the conflicting class certification mechanisms for state and federal claims.

The court of appeal affirmed in part and reversed in part.  It was error to dismiss Plaintiffs’ state claims on the basis of a conflict because state and federal claims may peacefully coexist.  State law requires that a plaintiff affirmatively opt-in to a lawsuit.  In contrast, the federal rules require a plaintiff to opt-out to be excluded from the class.  These different opting mechanisms do not require dismissal of state claims.  If these claims were to proceed separately in federal and state court, the confusion would be even worse because employees would receive uncoordinated notices from multiple courts.  It is possible to create an adequate notice that allows employees to opt-in or opt-out.  The fact that Federal Rule of Civil Procedure 23 class actions use an opt-out mechanism while Fair Labor Standards Act (FLSA) collective actions use an opt-in mechanism does not create a conflict warranting dismissal of state law claims.

Plaintiffs’ claim related to security clearances was plausible on its face and should not have been dismissed.  Preliminary and postliminary activities are compensable if they are necessary to the principal work performed and done for the benefit of the employer.  The security clearances meet this criteria because the security screenings must be conduct at work and are intended to prevent employee theft, concern that stems from the nature of the employees’ work.  The court of appeal reversed the district court’s dismissal of the parallel state law claim. 

The court of appeal affirmed the dismissal of the claim for shortened meal periods.  Plaintiffs failed to state a claim because walking to the lunchroom is not a work duty for which one is owed compensation.

Facts and analysis based upon Jesse Busk, et al. v. Integrity Staffing Solutions, Inc., decided on April 12, 2013 by the United States Court of Appeals, Ninth Circuit. 

Averaging Employee Hours in Piece-Rate Compensation Violates California Minimum Wage

April 18, 2013

By:  Christopher P. Wesierski and Ashley A. Reagan

This is a wage and hour class action.  Defendant Downtown LA Motors is an automobile dealership that sells and services Mercedes Benz automobiles.  Plaintiffs are a class of 108 service technicians who worked for Defendant between April 2002 and June 2008.  The service technicians are compensated on a piece-rate basis and are paid based on the number of repairs that they complete.  Each repair is assigned a number of “flag hours” that is intended to represent the actual amount of time a technician would need to perform the repair.  The technicians accrue the number of flag hours assigned regardless of how long it takes them to complete the task.  The technicians are paid based on the number of flag hours they have accrued in an 80 hour pay period.  Defendant also keeps track of the time a technician spends at the work site whether or not he is working on a repair order.  Plaintiffs regularly waited for cars to come in needing repairs and spent this time performing non-repair tasks.  No flag hours were accrued while performing these non-repair tasks.  At the end of each pay period, Defendant calculates how much each technician would earn if paid an amount equal to his total recorded hours “on the clock” multiplied by the applicable minimum wage aka “the minimum wage floor.”

The issue in this case was whether California’s minimum wage law requires an employer that compensates its automotive service technicians on a “piece-rate” basis to also pay those technicians a separate hourly minimum wage for their waiting time.  Defendant argues that a separate hourly rate was not necessary because it ensured that Plaintiffs’ pay never fell below the minimum wage floor.  It further argued that California law did not distinguish between waiting time and productive time.  Plaintiffs claim this compensation method results in less pay than if they were paid on an hourly basis and that California law mandates payment for all hours worked.

The trial court concluded that this method of compensation violated the California minimum wage law.  The court of appeal affirmed.  The courts relied heavily on the reasoning set forth in the case of Armenta v. Osmose, Inc. (Armenta) which stated that the California minimum wage law intends to ensure that employees are compensated at the minimum wage for each hour worked.  The Division of Labor Standards Enforcement (DLSE) has endorsed this statutory interpretation that an employer is obligated to pay minimum wage for each and every separate hour worked.  As a result, averaging hours worked violates the minimum wage law and contravenes the Labor Code by effectively reducing the employees’ contractual rate of compensation.  Plaintiffs were entitled to separate hourly compensation for time spent waiting to repair work or performing other non-repair tasks during their work shifts.  Labor Code section 203(a) penalties were awarded against Defendant for its failure to pay all wages owed at the end employment. 

Facts and analysis based upon Oscar Gonzalez, et al. v. Downtown LA Motors, LP et al., decided on April 2, 2013 by the California Court of Appeal, Second District

Court May Consider Merits of Damages Methodology During Class Certification

April 12, 2013

By:   Christopher P. Wesierski and Ashley A. Reagan

This case arises from the approval of a class of more than 2 million current and former Comcast subscribers.  The class alleged Comcast violated antitrust laws by engaging in unlawful swap agreements to concentrate their services in a particular region.  Comcast used a “clustering” strategy where it acquired competitor cable providers in the region and swapped the Comcast systems from outside regions with the competitor systems in the region.  This resulted in a 23.9% increase in Comcast subscribers.  The class argued that, as subscribers, they had been harmed because Comcast competitors had been eliminated and prices for cable services had been set above competitive levels.  The Comcast subscribers sought class certification.

Four theories of antitrust impact were proposed during certification: (1) Comcast’s clustering made it profitable for Comcast to withhold local sports programming from its competitors, resulting in decreased market penetration by direct broadcast satellite providers; (2) Comcast’s activities reduced the level of competition from “overbuilders,” companies that build competing cable networks in areas where an incumbent cable company already operates; (3) Comcast reduced the level of “benchmark” competition on which cable customers rely to compare prices; and (4) Clustering increased Comcast’s bargaining power relative to content providers.

The district court accepted the overbuilder theory of antitrust impact as capable of classwide proof and rejected the rest.  It determined that the damages claimed were measurable on a class-wide basis and that questions of fact as to the issue of overbuilders predominated over individual inquiry.  The court of appeals affirmed.  The court of appeals rejected Comcast’s argument that the class had failed to attribute damages resulting from overbuilder deterrence, finding that such an attack on the merits of the methodology had no place in the class certification inquiry.  According to the court, it had not reached the stage of determining the issues on their merits.  

The question on appeal was whether class certification was proper.  The U.S. Supreme Court found that the class should not have been certified.  In response to the reasoning provided by the court of appeals, the Court noted that it may be necessary to probe behind the pleadings before reaching a decision on the question of certification.  A trial court must perform a rigorous analysis which frequently entails overlap with the merits of the plaintiff’s underlying claim.  By refusing to entertain arguments against the damages model utilized by the class, the court of appeals ran afoul of case precedent.  At the class certification stage, any model supporting a plaintiff’s damages case must be consistent with its liability case.  Under the proper standard for evaluating certification, the damages are not capable of measurement on a class-wide basis.  Questions of individual damages will inevitably overwhelm questions common to the class.  The model utilized by the class did not even attempt to evidence damages resulting from overbuilder competition and considered all 4 theories of impact.

Facts and analysis based upon Comcast Corp. et al. v. Behrend, et al., decided on March 27, 2013 by the United States Supreme Court. 

Court of Appeal Deems Yet Another Arbitration Agreement Unenforceable

March 29, 2013

By:   Christopher P. Wesierski and Ashley A. Reagan

Plaintiff Leasa Compton filed suit against Defendant American Management Services, LLC (AMS) for Defendant’s alleged failure to pay overtime wages, reimburse expenses and provide rest and meal breaks. In entering into her employment contract with Defendant, Plaintiff signed an arbitration agreement that required employment disputes to be arbitrated but barred arbitration of class claims.  This effectively precluded Plaintiff from asserting any claims on a class-wide basis.

After the United States Supreme Court’s decision in AT&T Mobility v. Concepcion, Defendant moved to compel Plaintiff to submit her individual dispute to arbitration.  The trial court granted Defendant’s petition to compel.  Although the trial court’s order was not appealable, the court of appeal chose to treat it as a petition for writ of mandate due to the unconscionability issue.  The court of appeal reversed, finding that the arbitration agreement was both substantively and procedurally unconscionable and could not be enforced against Plaintiff.

The court of appeal determined that the agreement was substantively unconscionable because its terms were unfairly unilateral.  The agreement required the employee to arbitrate all disputes related to the termination of his employment but did not require the employer to arbitrate claims related to the protection of its intellectual property and the enforcement of any covenant not to compete.  In addition, there was a one year time limit to demand arbitration which is substantially less than the statutorily prescribed three or four year applicable time limits.  Further, an award by the arbitrator of attorneys’ fees to the employee was discretionary, which was in direct contrast to the Labor Code’s mandatory award of attorneys’ fees to employees prevailing on wage claims.  This arbitration agreement was “permeated with unconscionability.”

The agreement was procedurally unconscionable because Plaintiff was not given time to read the agreement before signing and the agreement was 1 of 20 forms, none of which were explained to Plaintiff.  In addition, Defendant failed to adequately describe and fairly portray the shortcomings of the agreement.  Plaintiff was also not provided with a copy of the arbitration rules to which she would be bound.

The court grounded its opinion in the reasoning set forth in the Armendariz v. Foundation Health Psychcare Servs. decision which deemed an arbitration agreement unilateral and denied an employer’s petition to compel arbitration of two individual sexual discrimination claims.  The court concluded that Concepcion did not overrule Armendariz and that its holding was still controlling law in California.  It was improper to enforce Defendant’s arbitration agreement against Plaintiff.

Facts and analysis based upon Leasa Compton v. Superior Court of Los Angeles County (American Management Services, LLC) decided on March 19, 2013 by the California Court of Appeal, Second District.