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Archive for January, 2011

Hooters: How Did They Do That?

I was recently searching the internet (“Googling”) for an attorney in Roseville, California. However, Google directed me to some random sites and one was an article about a new Hooters lawsuit out in Michigan. Well the lawsuit is not that new… just new to me, as it was filed in June 2010.

Apparently, a Hooters (located in Roseville, Michigan) is being sued by an ex-employee for what appears to be workplace discrimination or retaliation. At this Hooters, it is alleged that waitresses were put on “weight probation” and encouraged to take Adderall or appetite suppressants to speed up weight loss. Interestingly, the plaintiff is a women, who stands 4’11” tall and weighs 115 pounds… So, she is not terribly big, but yet allegedly put on “weight probation”. And for some more jury appeal, she is a single mom. If you would like to read more about this lawsuit you can click here.

I do not mean to make this a employee/employer blog, but I found this lawsuit and Hooters’ hiring practices pretty interesting. And lets face it, some of the most interesting fact patterns come from employment litigation… a friend of mine had an employment case, where two women over the age of 55 got into a fist fight at work. That kind of stuff is crazy.

But this lawsuit got me thinking, how can Hooters hire only women to work as wait staff at their restaurants. We have laws that prevent employers from discriminating based on sex. Well apparently, Hooters found an exception to the rule.

As imagined, men have sued Hooters for discrimination based on sex. I have not found a case that actually went to trial, however, in the past they argued that being a woman waitress is a bona fide occupational qualification. The bona fide occupation qualification is a limited exception that allows an employer to discriminate against a certain class of people when no person that is part of that discriminated class could perform the work.

In essence, Hooters is arguing that only a woman can be a waitress at Hooters, because customers go to Hooters expecting to see attractive women waitresses. However, there are cases that state that customer preferences ordinarily will not justify gender as a bona fide occupational qualification. Perhaps that is why I cannot find a case that Hooters took to trial. Rather, all I can find are out of court settlements. If you can find a case that went to trial, let me know. I have only done cursory searches.

Also, looking at Wikipedia and the SmokingGun.com shows that the Hooters’ handbook has an interesting waiver to help prevent Hooters girls from bringing suit against Hooters. According to Wikipedia and SmokingGun.com female employees are required to “acknowledge and affirm” the following:

“1. My job duties require I wear the designated Hooters Girl uniform.
2. My job duties require that I interact with and entertain the customers.
3. The Hooters concept is based on female sex appeal and the work environment is one in which joking and entertaining conversations are commonplace.
4. I do not find my job duties, uniform requirements, or work environment to be offensive, intimidating, hostile, or unwelcome.”

So, there you have it. Whether, Hooters complies with the anti-discrimination litigation is up for serious debate. To date, there have been few challengers. It will be interesting to see if more people test Hooters in court.

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What’s in the Beef?

I found a recent article indicating that Taco Bell is being sued for deceiving customers about the products that they put in there beef. I am kind of happy that I found this article, as it combines three things that I find interesting… the law, health and food.

Lawsuit Taco Bell BeefSo be careful when you want to “run to the border” to satisfy a craving. That beef burrito, chalupa or crunchy taco you desire may not be filled with the all natural beef that you were hoping for. Rather, according to the plaintiff, Taco Bell’s beef is an un-natural concoction of beef, water, wheat oats, soy lecithin, maltodrextrin, anti-dusting agent and modified corn starch. I must admit maltodrextrin and the anti-dusting agent sure do not sound as tasty as all-natural pure angus beef. What makes things worse, the lawsuit alleges that Taco Bell’s beef contains less than 35% beef. So, when you bite into that satisfying double decker taco, see if you can taste the wheat oats and soy lecithin.

I could go on and on about eating “real” food, but that is not really the point of this blog. Rather, we must ask why is Taco Bell being sued over this beef concoction. Why can’t Taco Bell sell its “beef”? According, to the lawsuit it is more of a false advertising issue. The plaintiff is simply seeking to stop Taco Bell from advertising the beef as “seasoned beef” when in reality, Taco Bell is selling a seasoned beef concoction that contains very little beef. So, the plaintiff is asking the court to stop Taco Bell from selling its “beef” as beef. Nevertheless, I’m sure Taco Bell could resolve this lawsuit by simply changing its “beef” practices and putting a little more beef into its beef.

I must say that seems pretty reasonable to me. If you want to sell beef, actually sell beef. But, if you want to sell a beef concoction, tell everyone that you are selling a beef concoction. But don’t advertise it as something that it is not… beef.
And if you don’t mind putting a bunch of chemicals in your body, go eat the beef concoction… it’s tasty. But before you make a run for fast food, check out Supersize Me. It may make you rethink your fast food craving.

You can read the AP article here

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Want To E-Mail Your Attorney While You Are At Work… Think Again

On Thursday, January 13, 2011, the California Third Appellate District here in Sacramento issued a decision effecting both employers and employees.  In short, the court determined that an employee’s computer is not very confidential, especially vis-a-vis the employer.  Consequently, this new decision will be a very powerful tool for employers in this age of “thought vomit” e-mails.

More specifically, the court held that communications sent by a plaintiff in a sexual harassment on her company email/computer to her attorney regarding whether to bring the lawsuit were not protected by the attorney-client privilege.  The Court pointed to Evidence Code §917(b) to explain that the communications do not lose their privilege protection simply because they were communicated electronically or because the persons or entities involved with servicing the emails (i.e. server, internet provider, etc.) have access to the content of the communications.

The court ruled that the plaintiff sent emails from her work computer despite the fact that (1) company policy that computers were not to be used for personal business such as sending or receiving personal emails, (2) plaintiff was warned that the company monitored compliance with the computer policy and that the company may inspect all files and messages at any time, and (3) plaintiff was explicitly advised that if she used the computer/email to maintain personal information or messages have no right to privacy to that information or the messages.  The court explained that what the plaintiff did was tantamount to consulting her lawyer in the company conference room, in a loud voice, with the door open.  No reasonable person would expect that discussions held in such a manner would remain confidential.

The effect of this decision allows the employer to use the files left on the employee’s files against him or her in court.  Thus, it will it provide the employer with an advantage in court.  The employee, on the other hand, will need to wait until they get home to communicate with their lawyer via e-mail.

More American Chopper

As you know, I am hooked on this show.  Forgive me.  I know that it is trash television.  Well, I caught the last episode and it contained a plenty of legal drama that I could discuss here on the blog.  If nothing else, this trash television gives me plenty of ideas for you to read about.

The first “legal” issue that came up was the new suit that was filed by Paul Sr. against Paul Jr.  According to what I could glean from the show, Paul Sr. is suing Paul Jr., Paul Jr. Designs and and employee of Paul Jr. Designs for misappropriating trade secrets and violating a non-compete clause.  Paul Sr. came to the conclusion that Paul Jr. and the employee are using Paul Sr.’s trade secrets in the operation of Paul Jr. Designs because Paul Jr. built a motorcycle for a former client of Paul Sr.’s company… Orange County Choppers.

In California, you cannot be found liable for misappropriating trade secrets your former employers trade secrets unless you actually use your former employer’s trade secrets… assuming that the former employer actually possessed a “trade secret”.  Thus, if the lawsuit was venued in California. Paul Sr. would have to prove that he owned a trade secret, that Paul Jr. took that trade secret, and used Paul Jr. used that trade secret for his advantage.  In watching the show, I gathered that Paul Sr. found out that Paul Jr. was building a motorcycle for a former client, so he assumed that Paul Jr. used his knowledge of OCC’s clients to make the connection and ultimately build the motorcycle for a profit.  Paul Sr. will need more evidence if he is going to prevail at trial… at least if he were in California.

Also, I found a nugget buried in the lawsuit issue pretty interesting.  The PJD employee is a former employee of OCC.  He is being sued for violating a non-competition provision.  Obviously, I do not have a copy of the contract in front of me.  However, non-competition provisions generally prevent persons from engaging in the same line of business as the employer for a certain period of time and in a certain area.  In California, non-competition provisions are commonly held unenforceable between and employer and an employee.  The only way to support a non-competition provision in California is through the sale of good will.  In other words selling a business.  That being said, if Paul Sr. were trying to enforce the non-competition provision here, it would likely be deemed unenforceable.

The second issue that came out of the show was that it was disclosed that the bank is foreclosing the OCC headquarters.  As you can imagine, Paul Jr. found this pretty entertaining… Paul Sr. can afford to fund a lawsuit, but he cannot pay the mortgage on his corporate headquarters.  I did a little research into this and found that Paul Sr. stopped paying on the mortgage, so that he could leverage the bank into giving him a better mortgage payment.  Apparently, it didn’t work as the bank is now foreclosing.  Even more interesting… Paul Sr. got the land to build the OCC headquarters through a redevelopment project that included various tax breaks.  I am sure that the people of State of New York will be happy to hear about this foreclosure.  You can read a local article HERE .

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Radlaw Announcement… Or Should I Say Rad | Kro Announcement

We are proud to announce that we changed our firm name and are now known as Radoslovich | Krogh, PC. This is a big step in our firm as we have grown from a sole proprietorship to having nine attorneys. We still help the little guy, but are fully capable of handling complex multi-party litigation.

Also, we moved our offices to 701 University Avenue, Sacramento, California. We simply outgrew our old space. Now we have a large beautiful offices that we cannot wait to show off.

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Relief Coming for Small Business

What does every small business owner hate… Taxes. Yes, the government is the silent partner of every small business. Nevertheless, there may be some relief for your 2010 tax return. CNNMoney.com outlined 6 new tax breaks. You can check them out here

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Anti-Hacking Statute Used Between Husband and Wife Inspires Use By Small Business

Copyright, Trademark and Intellectual Property AttorneysIn Michigan, a man named Leon Walker is be prosecuted for checking his (now) ex-wife’s email. Apparently, Mr. Walker either possessed, or guessed, his wife’s e-mail password and read e-mails between his wife and her ex-husband. Now, he is being charged under a Michigan anti-hacking statute. Frankly, it sounds like the prosecution arose out of a nasty divorce, as it appears that the husband and wife are also fighting over their child.

Nevertheless, it got me thinking about whether or not California has a similar statute and whether or not a person could be prosecuted in a similar situation. Ultimately, California has a similar anti-hacking statute that is more detailed and can be considered more broad.

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