Shirley A. Gauvin
Shirley A. Gauvin
Shareholder, Senior Counsel, San Diego
Formerly: Bartender
Education
  • B.S., Public and Environmental Affairs, Indiana University;
  • B.S., British & American Social Policy, University of Kent;
  • J.D., Maurer School of Law, Indiana University.

I am a graduate of the Stokes Wagner’s first summer associate class, where I ranked high by the partners in categories including “Most Likely to Pass the Bar on the First Try” and “Most Likely to Bring Midwestern Work Ethic to SoCal.” That was twenty-seven years ago.  Shortly after moving from Indiana (yes, I can tell you what a “Hoosier” is), I fell in love with the California shoreline, fish tacos and the indisputable truth that Californians share a strong work ethic with Midwesterners—they just dress more casually.

After several years juggling both trial and appellate litigation, I was certified by the State Bar of California Board of Legal Specialization as a Certified Specialist in Appellate Law. For the past twenty years, I’ve worked with trial lawyers to develop the most creative and effective means of sharing our client’s written story with the jury or court of appeal. I believe that the most persuasive writing is honest writing, and that there is no substitute for hard work and focused preparation. I am a firm believer that smart, reliable and friendly are a winning combination. My advocacy is direct, accurate and efficient – just because the court gives us 14,000 words doesn’t mean we have to use them all. I know the value of a dollar (including yours), am honest and forthright, and boldly defend our client’s cause as my own. In my legal practice as well as my life in general, I strive to always let my actions speak louder than my words.

In my free time, I hold leadership positions in several local athletic associations. My kids alone make up half a water polo team! I enjoy hiking, kayaking, SUPing and all kinds of water sports with my husband and three girls.  Whether we’re in the ocean, the mountains or the lake, my happiest place is being where they are when the sun sets.

With the popularity of Facebook and the widespread use of social media by employees, it probably comes as no surprise that experts believe a person’s Facebook status update offers interesting (and usually obvious) insight about his or her personality. Some people tend to share photos of their travel adventures or culinary skills while others post primarily about the political issues of the day or their kid’s latest athletic competition. For the reader, status updates can be interesting, fun and educational. They can also be dangerous traps for the unwary when they consist of unrestrained rants targeting an employer. Certainly, “concerted activities” for the purpose of mutual aid or protection are permitted and protected by the National Labor Relations Act; therefore, posts consisting of complaints concerning working conditions or worker’s rights will typically not support termination of the employee. However, before “going off” on an employer on social media, or tolerating the same by your employees, remember that such posts may be viewed as offensive and unprotected, supporting a legal termination.

Last week, the Texas attorney general filed a motion to dismiss a wrongful termination claim brought by a former executive assistant to a judge. The assistant’s public Facebook posts called the judge’s political affiliates “assholes”, and otherwise disparaged the judge and other members of the court. The assistant argued her posts were constitutionally protected free speech, while the judge claimed that the posts went beyond partisan insults and included salacious commentary and images that the judge considered “totally inappropriate” and disruptive to maintaining the credibility and professionalism of the court and its employees. The motion is yet to be heard and involves unique issues given the workplace in question, but the case serves as a good reminder that if employee comments are general bad-mouthing of a boss and are unrelated to working conditions or collective action with coworkers, an employer can discipline an employee for these comments.

In determining whether the risk of being fired is worth the momentary thrill of bashing the boss or supervisor, thoughtful employees will exercise restraint. If a real discussion-worthy issue is involved, employees will want to choose their words and their method of delivery carefully, to ensure the message is not lost in the emotion. And by all means, check your privacy settings regularly.

For a printable PDF of this article, click here.

Joint employer status has long been a hot topic and is seemingly a moving target depending on which agency or jurisdiction is evaluating the status. In a move to reduce uncertainty over joint employer status, promote greater uniformity among court decisions, reduce litigation, and encourage innovation in the economy, on April 1, 2019, the U.S. Department of Labor (“DOL”) proposed a four-part test to replace existing regulations that determine joint employer status under the Fair Labor Standards Act (“FLSA”). While the proposal was favorably received by managers/employers, it sparked criticism from the plaintiffs’ attorneys, who accused the DOL of ignoring precedent that interpreted joint employment broadly.

The DOL’s proposal represents the first significant change of joint employer rules since the 1950’s, seeking to apply a rule consistent with the test adopted by the Ninth Circuit in Bonnette v. California Health & Welfare Agency, 704 F.2d 1465, 1470 (9th Cir. 1983). The proposed test would consider four factors in determining whether joint employer status is found: (1) does the business (alleged employer) hire or fire employees; (2) does it control employee schedules and working conditions; (3) does it determine employee pay and method of payment; and (4) does it maintain employee’s employment records.

Unlike Bonnette, under the DOL’s proposal, only actions actually taken with respect to the employee’s terms and conditions of employment are relevant to the joint employer determination. Significantly, the proposed rule would eliminate any risk of a business being deemed a joint employer based only on the possibility that they could exercise control over an employee’s working conditions.

The new proposal also leaves room for consideration of additional factors if it appears that the alleged joint employer is either exercising significant control over employees’ work or otherwise exercising action directly or indirectly in the interest of the employer in relation to the employee. Particularly, the proposal notes that an employee’s purported economic dependence on the business is not a valid consideration in the joint employer analysis. Nor do specific business models (e.g., franchises) or business arrangements/agreements (e.g., requiring a partner to adopt workplace-safety or sexual-harassment-prevention policies) make joint employer status more or less likely.

While this rule change is good news for employers, keep in mind this is currently only a proposal. There may be many rewrites and legal challenges to overcome before a final version is presented. Also, this proposal, if adopted, is limited to joint employment determinations under the FLSA; it does not apply under other federal or state statutes.

For a printable PDF of this article, Joint Employer Proposal.

The #MeToo movement has prompted many state and local governments to expand protections prohibiting discrimination. Two months ago, the Illinois General Assembly passed a series of amendments to the Illinois Human Rights Act, which forbids discrimination in connection with any protected class. If signed into law, the amendments could significantly impact employers.

Currently, the Act applies to those who employ 15 or more employees within Illinois for at least 20 weeks per year. House Bill 4572 would apply to employers with one or more employee for at least 20 weeks per year. Senate Bill 20 makes several changes to the procedures of the Illinois Department of Human Rights and the Human Rights Commission, including:

  1. Extending the charge-filing period from 180 days after an incident giving rise to a claim to 300 days after the incident;
  2. Requiring the Department of Human Rights to notify all parties that the complainant may “opt out” of participating in the Department process within 60 days and commence a lawsuit in state court;
  3. Changing the makeup of the Commission from 13 part-time Commissioners to 7 full-time Commissioners, all of whom must either be licensed to practice law in Illinois or have relevant professional experience;
  4. Creating a temporary panel of three Commissioners to manage the backlog of requests for review; and
  5. Requiring the publication of Commission decisions within 180 days.

In addition to these bills currently awaiting Governor Bruce Rauner’s signature, a proposed amendment to Senate Bill 577, pending before a senate committee, would make changes to the Human Rights Act and the Victims’ Economic Security and Safety Act (VESSA), including (1) expanding the definition of “employee” in the Act to include independent contractors, vendors, consultants, and any “other person providing services pursuant to a contract,” expanding the class of individuals who can file a discrimination or harassment charge; (2) extending VESSA to include sexual harassment claims made by employees (currently, VESSA provides any employee who is the victim of domestic or sexual violence up to 12 weeks unpaid leave from work); (3) prohibiting any employer from including a non-disclosure provision in any settlement agreements related to sexual harassment claims, and permitting such a provision only at the employee’s request.

For a printable PDF of this article, click here - and be sure to check out more updates in our Stokes Wagner Quarterly Legal Update!

Just last month, the General Data Protection Regulation (“GDPR”) came into existence. GDPR is the legal framework establishing the guidelines for collection and processing of personal data of individuals in the European Union (“EU”) and the rights of the individuals with regard to such data. The GDPR requires businesses to be much more explicit about the information they maintain on people and to provide them with more control over that information. While European businesses may have been planning for the GDPR for some time, many U.S. companies are unprepared with no plans in place to comply. However, the long arm of the GDPR might apply to them.

Even if a business has no direct EU operations, it may still be required to comply with the GDPR if it, or its customers acting on its behalf, process information on people in the EU. This means that for many U.S. businesses, such as hotels and restaurants, the rules affect how they operate in other countries, because their users are globally connected. Consumers will be able to ask for the information that businesses maintain on them, and businesses will be required to provide such information in short order at no charge to the consumer. Consumers will also have the right to erasure of personal data (the “right to be forgotten”) when certain grounds apply, and the right to ask that their data be restricted.

What does this mean for you?

For businesses that have not begun compliance efforts, there is much to consider, including:

  • adopting a GDPR compliance policy;
  • creating a proper consent to use the data;
  • identifying someone to advise them regarding compliance (is there a need in the organization for a data protection officer);
  • determining whether/how to reach out to obtain re-consents;
  • reviewing data management procedures;
  • finding out where the information is located; and
  • developing procedures in the event of a security breach.

While fines for violations are severe and becoming compliant takes time, businesses must start somewhere. They would be well-served to put plans in place to demonstrate their efforts at working towards compliance.

For a printable PDF of this article, click here.

On Aril 6, 2018, the U.S. Department of Labor announced amendments to the Fair Labor Standards Act (“FLSA”) § 3(m).

One amendment rescinds portions of regulations regarding tip pooling when tipped employees earn at least the full FLSA minimum wage and do not claim a tip credit. In light of this amendment, the Department of Labor provided guidance and announced that employers who pay the full FLSA minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools.

Another amendment prohibits employers from keeping tips received by their employees, regardless of whether the employer takes a tip credit. This means that managers and supervisors are still prohibited from participating in tip pools as their participation would deemed as though the employer is unlawfully keeping the tips, which is still prohibited under the FLSA.

What does this mean for you? The FLSA effectively allows back-of-house staff who earn at least minimum wage and are employed in states without mandated tip credits (California, Nevada, Washington, Alaska, Minnesota, Montana) to participate in tip pools. The Dept. of Labor’s Wage & Hour Division expects to proceed with finalized rulemaking in the near future to fully address the impact of these 2018 amendments.

For more legal news, check out our quarterly newsletter for April 2018!

The 2nd Circuit, covering Connecticut, New York, and Vermont, has revived a sex bias claim brought on behalf of Donald Zarda, a deceased skydiving instructor who was allegedly fired for telling a client he was gay. As an instructor at Altitude Express, Zarda sometimes mentioned his orientation in order to help female clients feel more comfortable when jumping, as they would be tied physically close to him during jumps. Zarda was fired after a boyfriend of one female client complained to Zarda’s boss that Zarda had inappropriately touched his girlfriend and mentioned he was gay. Zarda denied anything inappropriate and alleged that his dismissal was entirely because he said he was gay.

Zarda’s estate tried to get a trial court to reinstate the sex bias claim after the EEOC held that the prohibition against gender discrimination in Title VII of the Civil Rights Act of 1964 extended to sexual orientation. The question of whether Title VII encompasses sexual orientation discrimination has led to inconsistent results, with the 7th Circuit ruling that the statute does in fact prohibit orientation bias and an 11th Circuit panel deciding that it does not. Now the 2nd Circuit has aligned itself with the 7th Circuit and the EEOC.

The 7th Circuit held that “Title VII’s prohibition on sex discrimination applies to any practice in which sex is a motivating factor,” and that “[s]{:target=”blank”}exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted, making it impossible for an employer to discriminate on the basis of sexual orientation without taking sex into account.”

The court explained that the reach of law has expanded, and this ruling reflects that evolution. The court concluded that stereotypes around sex are the foundation of discrimination on the basis of sexual orientation, and their shared roots mean they warrant shared Title VII protection. The court viewed sexual orientation as being protected through “the lens of associational discrimination,” the same principle that protects an employee who marries someone of a different race.

For more legal news, check out our quarterly newsletter for April 2018!

Ever wonder if you can recover litigation costs in employment cases? On August 15, 2017, in Sviridov v. City of San Diego, the court made it clearer for employers.

Two years ago, in Williams v. Chino Valley Independent Fire Dist., the Supreme Court explained that prevailing employers in employment cases can generally only recover costs if the employee’s action was objectively without foundation – an extraordinarily high standard. However, Williams was not asked to consider and did not answer the question of whether costs may properly be awarded in a FEHA action pursuant to a Section 998 offer. That issue was before the court in Sviridov.

Sviridov holds that a Section 998 offer creates economic incentives for both parties to settle rather than try lawsuits. Litigation costs are awarded to an employer if a plaintiff is not awarded damages more than the Section 998 offer, even if the case objectively had foundation.

What does this mean for you? Majority of employment cases are brought under FEHA. In these cases, it can be beneficial for employers to make reasonable Section 998 offers during litigation. Contact Stokes Wagner if you have any questions.

For more legal updates, check out our update for September 2017!