Virtual Trials-The Future is Now-Are You Ready?

One of our most popular speakers – Jeff Bast of Bast Amron – recently published an article called: “Virtual Trials-The Future is Now-Are You Ready?” for the American Bankruptcy Association’s Business Section Summer Newsletter.

Jeff recently spoke at our program: Business Bankruptcy 101: Chapter 11 Nuts and Bolts. Jeff was the program favorite!

We wanted to share this article with you, given the timeliness of topic – we know that you will find it helpful.

Click here to get to Jeff’s article: “Virtual Trials-The Future is Now-Are You Ready?” .

 

 

 

Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19

One of our fabulous speakers, Brendan Begley, from Weintraub | Tobin, wrote this post (below) for their blog and I wanted to share it with you. We hold programs for both plaintiff’s and defense attorneys, and usually have both speaking at our litigation related programs. The below post is from the defense perspective, and will be valuable for all types of attorneys who may need to deal with this subject or these types of suits.

Brendan is teaching at/taught at our August 2020 Two-Part Webinar on “Covid-19 Impending Employment Litigation: ​Liability, Privacy and Arbitration – the new dos and don’ts for both sides of the aisle” program.  As the title suggests, we will have both plaintiff and defense attorneys speaking to provide a good variety of perspectives and anyone who needs to know more about this, will want to attend. It is an online program, on August 25 and 27.

Read on below, for a thorough analysis of the issues, originally appearing on Weintraub’s Labor and Employment Law Blog.

Inoculating Against the Coming Spread of Employee Lawsuits Related to COVID-19
May 28 2020
by Brendan J. Begley

The Labor & Employment Law Blog

As workplaces begin reopening in the coming weeks, attorneys are predicting a rash of lawsuits by employees against their employers related to the COVID-19 pandemic.  It seems clear that workers-compensation preemption may immunize employers from most civil actions alleging that employees became infected with the virus on the job.  However, other types of employee lawsuits may reach fever pitch.
There does not appear to be any vaccination to alleviate many of the anticipated claims.  Still, just as good hygiene practices may help flatten the curve of the actual coronavirus, good employment practices can help reduce the incidence of such lawsuits in your workplace.  Here are four types of employment claims that are likely to spread like a contagion as employees are expected to (or actually do) return to their jobs, along with some inoculations that employers should consider:

Disability Claims

According to at least one media outlet, the head of the U.S. Equal Employment Opportunity Commission’s New York office reported this week that charges accusing employers of failing to accommodate workers’ disabilities are outpacing any other allegation tied to COVID-19 in the Empire State.  Employers should anticipate similar developments here in the Golden State.
Indeed, California’s Fair Employment and Housing Act (“FEHA”) and its federal counterpart, the Americans with Disabilities Act (“ADA”), both prohibit disability discrimination and require employers to provide reasonable accommodations to disabled employees.  An ounce of prevention – by engaging in the interactive process (from a safe distance) with infected or otherwise disabled employees to identify reasonable accommodations – often is more economical than the pound of cure that would come from prevailing in a failure-to-accommodate lawsuit.

In this regard, employers should remember that each request for an accommodation must be analyzed independently, and that a leave of absence may constitute a reasonable accommodation.  Thus, if employees request a leave of absence, either to get over their own COVID-19 infection or to reduce the risk of being exposed to the coronavirus due to some preexisting disability that puts them at greater risk, serious thought must be given to fashioning a workable accommodation.

Some employers may find respite in the notion that a coronavirus infection might not constitute an actual disability under the ADA or the FEHA, as the illness typically impairs its victims moderately or for only a short duration of time.  But this brand of comfort is often an ineffective placebo and not a recommended treatment to prevent the spread of disability lawsuits.  That is because the effects of a COVID-19 infection may be more long-lasting or create a more severe impairment for some individuals.  Thus, it would be a mistake for an employer to assume that such an infection can never amount to a protected disability.
At the same time, both the FEHA and the ADA prohibit employers from discriminating on the basis of a perceived disability.  Thus, it is foreseeable that some employers might decide to treat certain workers differently than others because they believe certain workers have some other actual or perceived medical condition (e.g., a persistent cough, or diabetes, or an immunodeficiency, or Chronic Obstructive Pulmonary Disease).

Employers may worry that letting such vulnerable employees return to the job or interact with coworkers might make them more susceptible to getting or spreading COVID-19.  While treating such employees differently in this manner may seem (or even might actually be) an act of caring and concern that would rival Florence Nightingale, such actions can lead to costly challenges in court (especially if they are applied in a clumsy fashion).
Disability harassment is another type of claim that employers may anticipate.  One way this type of claim may arise is when coworkers, managers or supervisors develop a notion that a particular employee was (or is) infected with coronavirus and spread (or is spreading) the sickness to the workplace.  If such coworkers, managers or supervisors are allowed to harass, insult or ostracize an employee on that basis, the employer may find itself in need of some urgent care from lawyers.

Tameny Claims

The so-called Tameny claim is named after the California Supreme Court’s decision 40 years ago in Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167.  Under the high court’s ruling in that case, a worker may pursue a lawsuit when he or she alleges that the employer terminated his or her employment in violation of some public policy.

It is difficult to tally how many Tameny claims are spreading in California, as the administrative agencies that handle claims of disability discrimination (or other types of discrimination, harassment or retaliation) typically are not responsible for investigating a Tameny claim.  So we may not know for many months how many Tameny claims have been filed in court; nonetheless, there is good reason to think the number will be high.
Keep in mind that California has a public policy that requires employers to “furnish employment and a place of employment that is safe and healthful for the employees therein.”  (Cal. Labor Code, § 6400.)  Also bear in mind that California has a public policy that prohibits employers from “preventing an employee from disclosing information to a government or law enforcement agency,” or to a manager or supervisor, “who has authority to investigate, discover, or correct the violation or noncompliance.”  (Cal. Labor Code, § 1102.5.)

With those public policies in mind, there are two general ways to become exposed to a Tameny affliction.  One arises when an employee is fired for refusing to execute some task on the job that actually would be unlawful.  The second arises when the employee is fired for complaining about what he or she reasonably perceives to be unlawful activity in the workplace (even if the activity in question turns out to be legal).
Regarding the first variety, it is easy to foresee the following scenario developing:  An employer directs an employee to return to work and the employee refuses and is fired.  If the employer instructed the employee to return before the government lifted restrictions for that specific workplace, terminating the employee for refusing to return may violate a public policy.  Likewise, if the employer waits until the restrictions lift but then fails to enforce regulations requiring social distancing or sanitary practices or the donning of personal protective equipment (“PPE”), firing an employee for refusing to work under such conditions may also be in violation of public policy.

Turning to the second type of Tameny ailments, it is equally easy to anticipate these scenarios occurring:  An employer directs an employee to return to work either before the restrictions are lifted or after the restrictions are lifted but without implementing or enforcing policies for social distancing, sanitation, or PPE.  The employee complies, returns to the job, and performs his or her work, but not quietly or without protest.  Instead, the employee complains about the workplace conditions, either to a governmental agency or a supervisor, and is subsequently fired.  Terminating an employee for complaining about such workplace conditions may be in violation of public policy.

One aspect of many Tameny claims that make them look less severe than other types of claims is that they often do not result in the employer having to pay the employee’s attorney fees.  However, given the other undesirable symptoms and bad side-effects that such lawsuits can trigger (e.g., lost productivity due to litigation, or the risk of emotional-distress and even punitive damages), that is a bit like telling a sick patient suffering from simultaneous chills and sweats that a fever of 103.8 degrees is not as bad as one that is 104 degrees.

Leave Claims

There are a number of federal and state laws that require various employers to provide a certain amount of protected leave to covered employees; for example, the federal Families First Coronavirus Response Act (“FFCRA”), the federal Family and Medical Leave Act (“FMLA”) and the California Family Rights Act (“CFRA”).
The FFCRA was passed just this year to provide workers with protected leave if they have been impacted in various ways by the coronavirus and related shelter-in-place orders.  It has already resulted in what some might call an epidemic of lawsuits where employees have claimed that their employer interfered with their protected leave, denied them benefits, or fired them in retaliation for requesting leave.

Meanwhile, the FMLA and the CFRA are not geared specifically for coronavirus-related leaves, like the FFCRA is, but those laws may still protect such leaves of absence.  Making things more complicated, there may be overlap between these leave entitlements and some employers may be subject to all of these laws, while others are subject to some or none of them.

It is very probable that employers will be faced with many more leave requests, either to care for someone who has been infected with COVID-19 or to stay at home with a child whose school or daycare facility remains closed while some restrictions are lifted.  Of course, employees also may request leave to deal with other health conditions that deteriorated while they were unable to get routine medical treatment while sheltered in place.  Each leave request should be given serious consideration.

Discrimination Claims

Whereas some employers may be struggling with too many employees in need of leave, others may be grappling with having to lay off employees due to downturns in business as a result of the shelter-in-place restrictions.  In either scenario, care must be given to how such decisions are made and serious thought must be devoted to the potential results.
Such decisions may trigger claims under the FEHA or its federal counterparts, Title VII of the Civil Rights Act or the Age Discrimination in Employment Act.  Those laws bar making employment decisions on the basis of certain protected categories; for instance, age, race, national-origin, gender or religion.

When deciding which employees are going to be given leaves of absence, or laid off, or assigned to certain duties, consistent procedures and rationales must be followed.  Even then, under what is called the disparate-impact type of claim, a neutral policy or practice can lead to discrimination liability if it has a statistically disproportionate impact on a certain class of workers.

Inoculate Against Such Claims

There is no vaccine that will prevent or get rid of all such claims, but the harmful effects of such lawsuits can be ameliorated by following certain precautions.

First, be sensitive to actual or perceived disabilities, do not make medical assumptions, work hard to identify and implement reasonable accommodations for disabled employees, and be vigilant in guarding against harassment of employees on the basis of some perceived or actual medical condition.

Second, take every request for a disability accommodation or leave of absence seriously and analyze each one independently on its own merits.

Third, do not violate or direct your employees to violate governmental shelter-in-place, social-distancing, sanitary or PPE restrictions or regulations.

Fourth, whenever making a termination decision, be sure it is for reasons that have absolutely nothing to do with the employee’s refusal to violate some public policy or the employee’s complaints about reasonably perceived violations of some public policy.

Fifth, make certain that personnel decisions have nothing to with protected classifications (e.g., age, race, gender, religion) and carefully analyze how decisions may impact protected classes of employees.
Just as there presently is no medicine that is sure to eradicate the current pandemic, there is no one-size-fits-all regimen that will completely wipeout such employment claims.  Even these steps cannot completely immunize employers against all these types of lawsuits, yet failing to adopt such protective measures probably will increase the risk of exposure to these afflictions.
Finally, it seems obvious that getting prompt medical attention may stem the more serious effects of a disease; by the same token, obtaining early legal advice may decrease the incidence or cost of these exorbitant types of lawsuits.

USSC declines to take up a challenge to mandatory bar dues constitutionality

The Recorder reported this morning that the USSC declined to take up a challenge to the constitutionality of mandatory bar dues:

“A divided U.S. Supreme Court on Monday declined to reconsider two decades-old decisions upholding the constitutionality of mandatory membership in state bar associations.

In the case Jarchow v. State Bar of Wisconsin, Adam Jarchow and Michael Dean argued that compelled membership and fees in their state bar violated their First Amendment speech and association rights.

The two lawyers asked the justices to overrule Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990), contending that the justices’ modern free speech decisions and the court’s recent ruling in Janus v. AFSCME, striking down union “fair share” fees, had “knocked the legs out from under” the Lathrop and Keller decisions.:

Read more at the Recorder’s link here.

Today in 1963 Martin Luther King, Jr. gave his “I Have a Dream Speech” – The #1 speech of the 20th Century

On this day in 1963, Martin Luther King, Jr. gave his famous I have a Dream speech. You may not know this, but the part of his speech where he launched into beginning his sentences with “I have a dream” was not planned. He had used those phrases in the past, but they were not written into this speech. He was inspired by the crowd and went with it. And boy did he go with it.

And it has been classified as the #1 speech of the 20th Century. For good reason.

His use of repetition was so effective that the speech is remembered for, and titled by, those passages and that phrase. He actually utilized a variety of fantastic rhetorical devices throughout his speech, including alliteration and other forms of repetition.

If you’d like to hear it, or read it, you can find MLK’s I Have a Dream Speech here at AmericanRhetoric.com.

If you would just like to remember that specific  passage though, I’ve copied it here (remember this came at about 2/3 of the way through his speech):

I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.”

I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

I have a dream today!

I have a dream that one day, down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of “interposition” and “nullification” — one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

I have a dream today!

I have a dream that one day every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight; “and the glory of the Lord shall be revealed and all flesh shall see it together.”

I always reference this speech when I teach my Presentation Skills for Attorneys seminars. Once, after one of my programs, an attendee came up to me and told me about a book his son had written discussing the speech. It is a terrific book and I recommend it – a very interesting historical look at the speech! The book is called “the Dream: Martin Luther King, Jr. and the Speech that Inspired a Nation.” You can find it on Amazon (of course) and I am sure it’s in bookstores as well.

The speech is one of my favorites of all time. Every single person in all of my presentation skills courses (thousands at this point) have heard the phrase and know what it means – we always hear it on the radio, we probably read about it back in school. But when is the last time you listened to the whole thing, or read it the whole thing, if ever?

Take the time to do it now. It’s worth it.

 

 

 

Court says Tinder doesn’t get to charge older customers more

Good news for Tinder users over the age of 30. Tinder – the swipe one way or the other if you are interested in someone (or not) dating app – just got smacked for charging older customers more than those under thirty for Tinder’s premium services.

We just found this blurb Winston & Strawn attorney Ryan P. Glove on the new California Lawyers Association’s Advertising law related Blog and wanted to pass it along:

A California Court of Appeals recently found that Tinder’s practice of charging users over the age of 30 an additional $10 for premium services violates the Unruh Civil Rights Act and the Unfair Competition Law. The court rejected Tinder’s argument that its pricing model was not discriminatory because it based pricing on market research which shows that users under 30 have less means to pay for premium services and therefore require a discount. Although certain age-based pricing structures have been upheld in the past, the appellate court held that Tinder’s pricing model is discriminatory because it employs an “arbitrary, class-based, generalization about older users’ incomes as a basis for charging them more than younger users,” and Tinder did not provide compelling public policy justifications for the alleged discriminatory pricing.

Goodbye Beranton Whisenant Jr. You were one of a kind.

I am heartbroken to write this post.

Last Wednesday, May 23rd, Federal Prosecutor Beranton Whisenant Jr. passed away in Hollywood Beach in Florida. Beranton had just recently left Foley & Mansfield to become a federal prosecutor.

Beranton was only 37.

He spoke at every one of our litigation programs since 2013, no matter how many we had each year. When someone speaks at your programs that often, you get to know them a little and you get to respect them a lot. Beranton was one of those attorneys that was completely dedicated to creating a great presentation and handouts to go along with it. He probably didn’t have the time to do it, as a partner at a major law firm, but he did it anyway.

And just as important, he was incredibly nice, super smart, and always happy when you saw him, no matter how busy.

The attorneys who attendee our programs loved him – always writing wonderful things about him when they let us know what they thought of our course. The other speakers with whom he would share the dias also spoke very highly of him and in fact it was one of those speakers who let me know last Thursday about Beranton’s death.

I very much enjoyed working with Beranton and having him speak at our seminars.

Any time I would shoot an email around to past speakers inviting them to speak at planned, or potential, seminars, Beranton was one of the first to reply with a “sign me up… for all of them” email. And any time I asked speakers for their recommendations for other speakers I should invite – Beranton would send over a list of four to ten possible attorneys or judges for me to invite – in South Florida, Orlando, even Jacksonville – or he’d just invite them himself and introduce us.  Many of the attorneys and most of the judges who have spoken at our programs over the past few years were recommended by Beranton.

In fact, he sent over so many recommendations, and introduced me to so many people, I finally just created a special folder for the names Beranton shared with me.

Beranton even co-wrote a chapter on Opening Statements in my public speaking for attorneys book.

And he was so involved in various legal committees and groups it seemed like he knew everyone. I was looking forward to him becoming a judge one day and speaking in that capacity as well. He would have made an amazing judge.

We’ve had more than 1500 attorneys and judges speak at our programs over the past 13 years, and some of them make such a positive impression that everyone they meet has great things to say about them – – my audio recording guy, my on-site East Coast representative, the person who puts together my speaker lists and emails, and all of the speakers who interact with them, not to mention those who attended our programs as I mentioned above.

All of my staff, and most of the outside folks I use to make a seminar happen, know of and remember Beranton and all were shocked and saddened to hear about his death. Our hearts go out to his family.

An obituary can be found at this link. He is survived by his wife, Ebony, and three young children.

I don’t even know how to end this post, only to say goodbye Beranton.

You were too young to die and you were well loved by everyone in my office. I will miss you.

Justice Paul Arthur Turner has passed away

I am very saddened to report that Presiding Justice Paul Arthur Turner of the California Court of Appeal District Five has passed away after a battle with liver cancer.  Justice Turner was a brilliant and kind man.  I remember him well as he participated in several of our appellate programs over the years and I had the honor to meet him and work with him and our other appellate speakers for those programs.  Justice Turner will be missed by all.  His obituary can be found at this link.  Services will be held May 31st at 11 am at the Rolling Hills Covenant Church, 2222 Palos Verdes Dr. North, Rolling Hills Estates, CA 90274.  He will be buried in his family’s plot in Kentucky.

– Faith

Congratulations to the Hon. Kira Klatchko

Congratulations to one of our favorite speakers, and my friend, Judge Kira Klatchko, sworn in to serve on the Riverside Superior Court just a bit ago!

Photo: Judge Klatchko is second from the right in the photo. I’m not quite sure how I (Faith) ended up in the middle of this photo – it was Judge Klatchko’s day! That’s Lead Appellate Court Attorney for the California Appellate Court Pablo Drobny on the far right and on the left is frequent speaker and appellate attorney Extraordinaire, Ben Shatz with his wife Meena Patel.

Previously, Judge Klatchko was a partner at Lewis Brisbois and handled both state and federal appeals arising from all areas of civil practice for clients as varied as cities, businesses and families. She was vice chair of the firm’s national Appellate Practice Litigation group. And she has served as the President of the Riverside County Bar Association.

Judge Klatchko is also an Appellate Law Specialist, certified by the State Bar of California Board of Legal Specialization.

 

Four Classic Ways to Organize Your Speech

Simply put, there are many ways to organize thoughts, ideas and themes.  Pick an organizational pattern that is right for your presentation.  Here are a few choices:

  • Sequential/chronological: Does your presentation move through a series of points that can be organized in a sequential or chronological pattern?  If so, do not attempt to jump around and explain your points non-sequentially or your audience can easily get lost.  If the points you wish to make or the story you have to relate occurred one at a time, stick to the chronology.  Your audience will follow right along with you.  It’s a lot like that two-page instruction manual that comes with your new electronic device and always goes through each step in sequential order.  Some topics just require this form of organization to be understood: What happened first? What happened second? Then what happened?  And sometimes you can start with the end and work your way back, but you definitely can’t skip around if a topic really needs a sequential presentation.
  • Categorical/topical:  Your main points may be most easily presented by category or topic.  Clearly state what you’re going to be covering during the course of the seminar or speech, give the audience a means to remember it and then proceed exactly as you described.  (For heaven’s sake don’t tell them you’re going to talk about Earth, Wind and Fire and then present it as Fire, Wind and Earth.  Stick to the categories you establish from the get-go.)
  • Compare and contrast: When making comparisons, be sure the comparisons are valid.  Apples are not oranges.  Don’t make the mistake of mixing up the two.  If you want to compare raising a child to raising a domestic animal, you run the risk of alienating the parents in the room.  (Or the pet owners, for that matter.)  But if you hit upon a comparison that works, by all means use it.  The same rule applies to contrasts.  Baseball is similar to football in that both are sports, both use a ball and both employ a points system.  In that way, you can compare the two.  But there are also many ways you can contrast them and examine the differences.  (George Carlin did this famously and to great effect.)  Using comparisons and contrasting examples is a wonderful way to hammer home an important point.
  • Problem — solution:  This is a simple way to both organize and present a speech cleanly and with little digression:  Set up a problem and then offer a solution (or several solutions) to that problem.  Be sure that the problem is one common to most members of the audience (the less obscure you can be the better) and try to offer novel or clever solutions rather than merely obvious ones.  You don’t want to talk down to them.  Within the problem — solution framework, you might, for example, discuss the causes and impacts of problems (such as gambling compulsions or addictions), review past or outmoded solutions that have failed in the past and, finally, provide a new or time-tested solution that is most likely to work.