California Employment Law Report
Read More!
A web log of California employment law issues.
an individual who "exercises control over the wages, hours, or working conditions of any person." (Wage Order No. 9, subd. 2(F) (hereafter the IWC employer definition).)
Noting that section 510, in obligating "an employer" to pay overtime compensation, does not define that term, and that section 1194, in providing "any employee" with a private right of action to recover unpaid minimum or overtime wages, does not specify potential defendants, plaintiff argues we should apply the IWC employer definition in order to determine who are proper defendants here. That definition, plaintiff asserts, includes corporate control figures like the individual defendants.
Any employer or other person acting on behalf of an employer who violates...any provision regulating hours and days of work in any order of the [IWC] shall be subject to a civil penalty as follows: (1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages. (2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.
She [the plaintiff] never mentioned to anyone within the company that she felt the order was discriminatory. She never explained, or even alluded to, what she articulated in her declaration that "[t]his was the first time in all of my years as Regional Sales Manager that anybody had ever asked me to make a final employment decision based upon the physical appearance, much less the subjective physical appearance, of an employee." She kept her belief, and all of the reasons she allegedly had for that belief, entirely to herself.
The majority claims that plaintiff's statement to Wiswall [plaintiff's supervisor] that she needed justification presents a prima facie case that she complained of unlawful sex discrimination. This statement, however, was not a claim of discrimination at all, much less sex discrimination. As L'Oreal aptly points out, a manager's request for "adequate justification" from a superior could convey reservations about the wisdom or soundness of the superior's directive from a business standpoint - why seek the removal of a salesperson who (the manager believes) is doing a good job? Why needlessly risk antagonizing the important account employing the salesperson? The manager may simply be reluctant to carry out an unpleasant task directed at a person the manager personally likes or respects. Or perhaps she simply thinks the directive is unfair.
All of these are very logical possibilities that have nothing to do with sex discrimination or discrimination of any kind. Indeed, plaintiff herself indicates in her declaration she believed the order was a bad business decision because the salesperson in question was a top performer - information that she also apparently kept to herself. Plaintiff's mere request for justification is even further removed from a complaint of discrimination than those found too vague in the cases cited above. She did not come close to making "an overt stand against suspected illegal discriminatory action." Nor did she even give Wiswall, or anyone within L'Oreal, "sufficient facts from which he could conclude that plaintiff's problem involved sex discrimination. At most, she "was contesting the correctness of a decision made by [her] employer," which is insufficient. (citations omitted)
Give the man credit. When stuck for a way to finish his grad paper on speech recognition, he took a year off to write a world-champion Othello program. Then came back and knocked off that pesky paper to earn his doctorate.
That's a geek hero if there ever was one. All he needs is a Persian cat and a monocle and he could take over the world. Hey Doc, if you're not going to be busy for the next few months, why not stop by the WebProNews offices? We'd like to see if you're as good at backgammon as you are at Othello.
Non-Competition and Non-Solicitation. While employed at Microsoft and for a period of one year thereafter, I will not (a) accept employment or engage in activities competitive with products, services or projects (including actual or demonstrably anticipated research or development) on which I worked or about which I learned confidential or propriety information or trade secrets while employed at Microsoft…. If during or after my employment with Microsoft I seek work elsewhere, I will provide a copy of this Agreement to any persons or entities by whom I am seeking to be hired before accepting employment with or engagement by them.
The laws of the State of Washington relating to contract provisions such as the
Covenant Not to Compete are in fundamental conflict with California law. The
State of California has a materially greater interest than the State of
Washington in having its law applied to decide the enforceability of the
Covenant Not to Compete (a) because of the strong public policy in California in
favor of free mobility of employees and against provisions restraining anyone
from engaging in any lawful profession, trade, or business, and (b) because the
Covenant Not to Compete is interfering with the California-based employment
relationship between Google and Dr. Lee.