27 Jul 2018



Judge Sanctions Lawyer for Sexist Comment

U.S. Magistrate Judge Paul Grewal, Northern District of California Jason Doiy / The Recorder

SAN FRANCISCO — A federal judge in San Jose has ordered a Southern California attorney to pay up for making a sexist remark to a female attorney during a deposition.

Peter Bertling of Santa Barbara’s Bertling & Clausen told opposing counsel that it wasn’t “becoming of a woman” to raise her voice at him during a contentious expert deposition in October in a wrongful death suit.

The utterance didn’t sit well with U.S. Magistrate Judge Paul Grewal, who sanctioned Bertling and ordered him to donate $250 to the Women Lawyers Association of Los Angeles Foundation.

“A sexist remark is not just a professional discourtesy, although that in itself is regrettable and all too common,” Grewal wrote in an order issued Tuesday. “The bigger issue is that comments like Bertling’s reflect and reinforce the male-dominated attitude of our profession.”

Grewal also forced Bertling’s clients to pay the plaintiffs’ costs for the deposition, finding that Bertling had “repeatedly and unapologetically flout[ed] guideline after guideline” during discovery.

Bertling didn’t respond to an email and voice message seeking comment.

Oakland solo Lori Rifkin, who sought the sanctions against Bertling, said that based on conversations she’s had with lawyers across the country “this is something that almost every woman attorney has experienced again and again over their careers.” Rifkin, who was a lawyer in the Department of Justice’s Civil Rights Division from 2010 to 2013 before going into private practice, said that many women don’t make an issue of comments like Bertling’s for fear of being labelled “whiners.”

“This is reflective of the usual course of business which needs to change,” she said.


Grewal’s sanction order detailed a string of problems with Bertling’s conduct in discovery, including a propensity toward coaching witnesses, cutting them off and answering for them in depositions. Grewal found that Bertling repeatedly failed to hand over relevant documents, including a medical expert’s notes from jail visits which were delivered to plaintiffs’ counsel the day after an important brief was due.

“Discovery is hard enough, even without conduct like that,” Grewal wrote. Beyond awarding plaintiffs their costs for three depositions and for briefing on the sanctions order, the judge ordered that the expert hired by Bertling’s client be made available for another four-hour deposition to be paid for by the defense.

It was during the expert’s earlier deposition that Bertling asked Rifkin to lower her voice. When Rifkin asked him to stop interrupting her, Bertling said, “[D]on’t raise your voice at me. It’s not becoming of a woman or an attorney.”

In a brief declaration filed in response to the motion for sanctions, Bertling wrote, “In retrospect, the proper term for me to have used in this context would have been ‘attorney.’ I apologize to Ms. Rifkin if I offended her by referring to her as a ‘woman’ instead of as an ‘attorney.’ ” Bertling wrote that his remarks were made “in the context of Ms. Rifkin literally yelling at my client and creating a hostile environment during the deposition.”

By Cynthia Lambert | clambert@thetribunenews.com
Lawsuits follow Arroyo Grande police chief

Two Police Departments under Steve Annibali’s leadership have been accused of unequal treatment

By December, Senior Officer Michelle Cota had amassed a long list of complaints against the Arroyo Grande Police Department and her boss, Chief Steve Annibali. Cota contended that overtime shifts and on-the-job training were denied, watch commander coverage opportunities were withheld, and she was sometimes overloaded with calls for service while male officers were allowed to remain at the police station, according to a lawsuit she filed against the department and Annibali. The lawsuit, making its way through San Luis Obispo Superior Court, only represents one side of the dispute, and Arroyo Grande officials have reaffirmed their confidence in Annibali.

But the lawsuit is not the first to claim disparate treatment, harassment or discrimination by either Annibali or one of his top administrators, Cmdr. John Hough. In the past two years, two other lawsuits have been filed by current or former Arroyo Grande employees. Since then, Annibali has been dropped from one suit, while Cota’s lawsuit, and one filed in 2010 by Officer Kimberely Martin, which also alleges discrimination, sexual harassment and retaliation, are ongoing. A third suit against the city was filed by a former male officer over a physical fitness test he was required to take.

A decade earlier, two lawsuits and a charge of discrimination were filed by female officers alleging discrimination and retaliation while Annibali was chief of the Breckenridge Police Department in Colorado. Hough, then a sergeant in Breckenridge, was mentioned in one of the lawsuits. Neither he nor Annibali was named as a defendant in the suits.

Since then, those lawsuits have been settled. Annibali left Breckenridge and served seven years as chief of the Ephrata Police Department in Pennsylvania — where no lawsuits were filed by employees against him — before moving to lead Arroyo Grande’s department. Hough, who was hired in Arroyo Grande in 2009, left several months before his contract was up at the end of March to move back to Colorado. Since news of the Arroyo Grande lawsuits surfaced, some critics — such as some former employees of the department — have emerged and suggested that Annibali has created a disparate management style at the department, and voiced concerns about the chief’s history.
At least one, possibly two, private investigators have been hired to dig into Annibali’s past, according to Annibali and others.

City Manager Steve Adams was not aware of the Breckenridge lawsuits before hiring Annibali, as the chief wasn’t named in the litigation. The city of Arroyo Grande contracted with Jim Gardiner, former San Luis Obispo police chief and a licensed investigator, to conduct a comprehensive background investigation, while Adams did a parallel background check. Adams said he couldn’t comment on the results of the investigation, though he acknowledged he was not aware of the lawsuits.
“Both investigations confirmed that Chief Annibali has had a dynamic and distinguished career; no issues of concern were identified and what emerged was the portrait of a skilled, fair and honest man,” Adams wrote in an email to The Tribune. “The city of Arroyo Grande is very fortunate to attract a chief of his caliber. Chief Annibali has established himself as a leader in police ethics. This attempt to smear the chief’s exemplary reputation of public service is unconscionable.”

Several current and former council members also expressed confidence in Annibali when contacted by The Tribune. “I’m privileged to confidential information about the lawsuits that I can’t talk about,” said Councilman Joe Costello, referring to the litigation against Arroyo Grande. “Once everything comes out, Steve Annibali is going to be just fine, there’s nothing that he’s done wrong.”

The chief’s background

Annibali started his law enforcement career in 1978 as an officer with the Los Angeles Police Department. Two years later, he joined the San Diego County Sheriff’s Office, where he served as a deputy, sergeant and lieutenant before moving to the Arapahoe County Sheriff’s Office, near Denver, from 1992-97.
From 1997-2000, Annibali led the Breckenridge Police Department, where he “re-engineered a stagnated agency into a progressive, professional and dynamic team,” according to his résumé. Before coming to Arroyo Grande in 2007, Annibali served for seven years as police chief in Ephrata, overseeing 31 sworn officers.
In Arroyo Grande, he oversees 26 sworn officer positions. The Arroyo Grande City Council unanimously voted to confirm his appointment July 10, 2007.
In 2009, after two of his commanders retired, Annibali said he decided to hire two commanders on a three-year contract, and selected Hough, who had worked for Annibali in Breckenridge, from a list of final candidates. Annibali also serves on the Professional Standards, Image and Ethics Committee of the International Association of Chiefs of Police and is a guest lecturer and instructor on the topic of ethics. He couldn’t comment on current litigation, citing a city policy not to discuss ongoing lawsuits. Such a policy is universally followed by public agencies. “I’m very proud to stand on my record of 34 years,” he said in a phone interview from a weeklong California Police Chiefs Association symposium in Sacramento. “We hold people accountable everywhere I’ve been, and that’s not always popular.”

Lawsuits in Breckenridge
Two lawsuits and a charge of discrimination were filed against the town of Breckenridge while Annibali served as its chief. One of the lawsuits, filed in 2001 after Annibali had taken a job in Pennsylvania, puts him in a positive light. In October 1999, the plaintiff, former Officer Rebecca Johnson, complained to Annibali that she was being treated differently than her male counterparts, according to the lawsuit. After that, the discrimination and harassment lessened, but increased again after Annibali moved to Pennsylvania, according to Johnson’s suit. Johnson’s suit settled in 2002 for $50,000, including about $22,000 in attorney’s fees. Another lawsuit, filed in 1999 by former Officer Rosie Trindle, alleged she was subjected to a hostile work environment and an ongoing pattern of discrimination based on her gender. The suit doesn’t mention Annibali but alleges that Hough, then a sergeant (and not a named defendant) didn’t take any action when Trindle complained of sexual harassment after a co-worker had made an inappropriate comment. Trindle declined to comment on the suit, citing the settlement she’d signed. Hough could not be reached for comment. Annibali said the officer who made the comment was disciplined, and that Trindle was unhappy with a performance evaluation and raise she had received. []

In 1998, a charge of discrimination was filed against the department; a subsequent lawsuit did not appear to have been filed. The charge, filed by a civilian community services officer, alleges that she was subjected to unwelcome remarks that were sexual in nature by male officers. After she reported the incidents to Annibali, the community services officer claimed, she was denied a vacation leave request and received a written reprimand. Annibali said he recalled receiving a complaint about officers’ foul language, and said he regularly instructs officers to use appropriate language. “I did discipline male officers for using foul language in the workplace,” he said.

Lawsuits in Arroyo Grande
Since summer 2010, three lawsuits have been filed against Arroyo Grande. Two were brought by the female officers. A third was from a male sergeant who alleged the city and Annibali subjected him to an unwarranted fitness exam and eventually fired him after he raised concerns about various issues to ensure a safe working environment. The city and Annibali later received absolute immunity by a U.S. District Court and were dropped from the suit.
Officer Martin’s suit, filed in September 2010, alleged a pattern of unequal actions, such as giving preferential treatment to male officers while overlooking female officers for promotion. Cota alleged she was discriminated against and that her complaints instigated additional mistreatment.
Separate hearings are set for April in San Luis Obispo Superior Court for an update on Martin’s and Cota’s cases.

Read more here:http://www.sanluisobispo.com/2012/03/14/1990044/lawsuits-follow-arroyo-grande.html#storylink=cpy

Pregnancy Disability Leave
Employers with five or more employees are required to continue to maintain and pay for health coverage under a group health plan for an eligible female employee who takes Pregnancy Disability Leave (PDL) up to a maximum of four months in a 12-month period. The benefits are at the same level and under the same conditions as if the employee had continued working during the leave period. Under current law, employers were only required to provide benefits for pregnancy leave to the same extent and for the same length of time as they would for other temporary disability leaves. If the employer was covered by the federal Family and Medical Leave Act, it had to provide continuing coverage during the 12 weeks of FMLA leave. The new law requires group health insurance continuation coverage for all employers with five or more employees regardless of how they treat other temporary disability leave and regardless of FMLA coverage.

Willful Misclassification of Independent Contractors
Penalties of between $5,000 to $25,000 went into effect for the “willful misclassification” of independent contractors. Willful misclassification is defined as: “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.” The law also imposes joint liability on non-attorney outside consultants who knowingly advise an employer to treat an individual as an independent contractor to avoid employee status.

Written Commission Agreement
If you earn commission, your employer is now required to put commission pay agreements into a signed written contract. The written contract must set forth the method by which the commissions will be computed and paid. If the contract expires but the parties keep working under the expired contract, the contract terms are presumed to remain in effect unless superseded by a new contract or the employment relationship is terminated. The bill is effective January 1, 2013. Employers have the entirety of 2012 to bring their commission agreements into compliance.

Notice of Pay Details
-The rate of pay and the basis, whether hourly, salary, piece commission or otherwise, including any overtime rate
-Allowances, if any, claimed as part of the minimum wage, including meal and lodging allowances
-The regular pay day designated by the employer as required under the Labor Code
-The name of the employer, including any “doing business as” names
-The physical address of the employer’s main office or principal place of business and any mailing address, if different
-The telephone number of the employer & the name, address and telephone number of the employer’s workers’ compensation carrier

The law also requires notice of any other information the Labor Commissioner deems material and necessary. The Labor Commissioner is to provide a template. The new law only applies to nonexempt employees, which again highlights the need for properly classifying employees at the time of hire. If there is any change to the information in the notice, the employer must notify each employee, in writing, within seven calendar days of the changes, unless such changes are elsewhere reflected on a timely wage statement or other writing required by law. This legislation also increases penalties for wage violations and makes further changes regarding collection of such penalties, including an increase in the statute of limitations.

Gender Expression
The Fair Employment and Housing Act was amended to further define “gender” to include both “gender identity” and “gender expression” and to make clear that discrimination on either basis is prohibited. Current law only uses the term gender identity. AB 887 also amends Government Code section 12949 relating to dress codes to include that an employee must be allowed to dress consistently with both the employee’s gender identity and gender expression. “Gender expression” is defined as “a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” This definition is not a change from existing law relating to gender identity.

Interference With Rights Under Leave Laws
Language was added to the California Family Rights Act (CFRA) and the Pregnancy Disability Leave law (PDL) that makes it unlawful to interfere with or in any way restrain the exercise of rights under these laws. This added language should not be a change to existing employer obligations since this is already a requirement under the federal Family and Medical Leave Act (FMLA).

Administrative Penalties
Employees who allege a minimum wage violation are now permitted to seek the recovery of liquidated damages pursuant to any complaint brought before the Division of Labor Standards Enforcement. Existing law allows such damages in any complaint before a civil court, but not in an administrative proceeding before the Labor Commissioner. This new law would allow the Labor Commissioner to also award such damages. Under the new liquidated damages provision, the employee would be entitled to recover an amount equal to the wages unlawfully unpaid, plus interest.

Wage Penalties
The maximum penalties were increased for violations of prevailing wage obligations. These obligations apply to certain state or federal contracts and generally require a wage set that is significantly higher than minimum wage. It also increases the penalty from $25 to $100 per calendar day, per worker, against contractors and subcontractors that fail to respond to a written request for payroll records within 10 days.

New California Department of Fair Employment & Housing (“DFEH”) Procedural

1. The DFEH no longer requires a claimant to sign the complaint, but instead, permits the claimant’s  attorney or any other person whom the claimant has designated to sign on his or her behalf.

2. The DFEH will also now accept an unsigned complaint when  neither the claimant nor an authorized representative is able to sign it before  the statute of limitations expires.

3. The “liberal construction of  complaints” is now codified to extend to all claims that are or could have been  asserted based on the facts alleged. So, where the claimant checks only the box  for discrimination but the facts alleged could support a harassment claim as well, the DFEH will construe the complaint to include both claims. This may make  it more difficult for employers to successfully argue a failure to exhaust administrative remedies and obtain an early dismissal of those claims not  expressly alleged in the administrative complaint at the litigation stage.

4. In yet to be defined circumstances, the DFEH may now accept  complaints filed after the one-year statute of limitations period. The new regulations provide that “where there is doubt about whether the statute of  limitations has run [the complaint will be accepted and timeliness] investigated and analyzed” during the investigation. This may make it more difficult for employers to establish a statute of limitations bar to the administrative claim.

Congressional member, Senator Hagan,  recently introduced a bill that would greatly expand the exemption to the Fair Labor Standards Act for IT employees, eliminating
overtime benefits for many employees, including network, database and security specialists.

Currently, California law and the FLSA mandates that employees get time-and-a-half (1.5x) overtime pay for working more than 40 hours in a week or 8 hours in a workday, unless they qualify under one of the exemptions. Many exemptions exist and the current text related to IT workers exempts “any employee who is a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker,” whose primary duties fall under categories including “systems analysis techniques and procedures,” and “design, documentation, testing, creation, or modification of computer programs.”

But a bill sponsored by Sen. Kay Hagan (D-NC), titled the “Computer Professionals Update Act,” takes the exemption’s 131-word text and bumps it up to 205, adding job classes such as database and network specialists and security professionals.  The proposed language of the bill would exempt “any employee working in a computer or information technology occupation (including, but not limited to, work related to computers, information systems, components, networks, software, hardware, databases, security, internet, intranet, or websites) as an analyst, programmer, engineer, designer, developer, administrator, or other similarly skilled worker,” with primary duties including “the application of systems, network or database analysis techniques and procedures, including consulting with users, to determine or modify hardware, software, network, database, or system functional specifications.”

The bill would also label all employees listed in the exemption as part of the “bona fide executive, administrative, or professional” class exempt from overtime and minimum wage laws. However, the proposed modification keeps the exemption’s current text limiting affected employees to those who are on salary or make at least $27.63 an hour.

One IT administrator who blogged about the bill commented that “I think that I may have originally underestimated the importance of this bill to us SysAdmins in the United States…see, I was under the impression that we were almost all salaried and exempt—in other words, that overtime wasn’t an option anyway. I’ve been informed by a couple of friends of mine that this isn’t the case at all, and that there are a lot of hourly SysAdmins who get overtime.”

If you are an IT employee who is curious whether you are being paid correctly under California or Federal wage and hour laws, contact Adams Law today.

ELK GROVE, CA – The California Department of Fair Employment and Housing, the state’s civil rights agency, announced that its first-ever procedural regulations became effective today. The Department’s regulations were approved by the Office of Administrative Law on September 7, 2011 and filed with the Secretary of State. In a succinct and clear format, they replace nearly all of the formerly voluminous Department directives adopted over 30 years, making the Department’s procedures readily accessible and easy to understand.

The new rules capture existing procedures within the Department for handling complaints related to employment, housing, and public accommodation discrimination and incidents of hate violence. All complaints within the Department’s jurisdiction, for example, workplace harassment, discriminatory hiring or firing or refusal to rent on a discriminatory basis, are covered. Public testimony and written comments helped shape the final regulations.

“I am excited that the Department finally has procedural regulations that are clear, user friendly and citable as legal authority,” said Department of Fair Employment and Housing Director Phyllis Cheng. “These new rules comply with the Administrative Procedures Act and streamline the Department’s processes. We appreciate the public’s valuable feedback that made these regulations possible.”

The regulations formalize existing procedural steps for the Department’s administrative process, including intake, complaint filing, investigation, conciliation, and prosecution; they also cover the procedures of the Department’s new Mediation Division. The rules benefit employees, tenants, employers, businesses and housing providers alike. The regulations can be found in the California Code of Regulations, title 2, sections 10000 through 10066.

To visit the Department of Fair Employment and Housing, go to http://www.dfeh.ca.gov

The IRS has announced a 4.5 cent increase in the standard mileage rate to be in effect for the last six months of 2011. Effective July 1, 2011, employers who use the IRS rate to reimburse employees for business mileage must pay 55.5 cents per mile. If you use your own vehicle during the course of discharging your job duties and have not been paid for mileage, you may be owed compensation.

If you are an “App User,” the U.S. Department of labor launched its first smartphone application – the DOL-Timesheet that may be useful to you in tracking your hours worked. This timesheet application, which is available in English and Spanish versions, provides a record keeping system that enables you to keep track of your work hours and determine the wages your employer owes you.

Users can track regular work hours, break time, and overtime hours. Users can also add notes or comments (project name, work site, etc) and view summaries of their work time (and wages owed) in daily, weekly, and monthly formats. Even better? You can email the summary as an attachment to ensure your record – and your paycheck – is accurate.

This application is a huge boon to employees who no longer have to rely on their employer’s records. In the event of a wage and hour dispute, the employee’s records could assist in winning a wage claim, particularly where the employer has failed to maintain accurate records as required by law.

If you do not have a smartphone, you can download a timesheet calendar that will help you maintain the same information. Both  can be downloaded from the DOL’s Wage and Hour Division homepage.

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