Shirley A. Gauvin
Shirley A. Gauvin
Shareholder, Senior Counsel, San Diego
Formerly: Bartender
  • 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.

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!