Shirley A. Gauvin
Shirley A. Gauvin
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.

California’s Fair Employment and Housing Act prohibits employment discrimination based on certain protected classes and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices. On September 18, 2022, Governor Gavin Newson signed AB 2188, which, upon its effective date of January 1, 2024, essentially adds a new category of protected persons – cannabis users.

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On May 15, 2022, the U.S. Supreme Court issued the much-anticipated and employer-favorable ruling in Viking River Cruises v. Moriana, holding, in an 8-1 decision, that the Federal Arbitration Act (FAA) preempts the California Private Attorneys General Act (PAGA). The Court’s decision means employees who signed arbitration agreements may not avoid arbitration of their individual PAGA claims. Further, once an employee’s PAGA claim is in arbitration, they have no standing to bring PAGA claims on behalf of other employees in court.

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On May 23, 2022, in Naranjo v. Spectrum Security Services, Inc., the California Supreme Court clarified that a violation of Labor Code section 226.7 (payment of premium wages for meal and rest period violations) gives rise to claims under Labor Code sections 203 (waiting time penalties) and 226 (inaccurate wage statements).

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In a 6-3 decision, the US Supreme Court voted to stay the vaccine-or-test regulation, ruling that the Biden administration’s vaccine-or-test requirements for large private companies exceeded their authority. Separately, the Court ruled that a more limited vaccine mandate could stand for workers employed by government-funded healthcare facilities.

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As California and the U.S. enjoy a surge in the travel industry again, the newly codified Labor Code section 2810.8 sets forth the obligations of California employers with regard to the recall of laid-off employees in many hospitality positions. The new law took effect on April 16, 2021 and expires on December 31, 2024.

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Anyone who has considered filing a petition for writ of mandate from a superior court ruling knows the odds are not in favor of the court granting this extraordinary relief. Apart from clear error, the requirement of showing irreparable harm is a hurdle that derails even the strongest advocates, but some cases present such important questions of law, they warrant a writ. General Atomics v. Superior Court, filed May 28, 2021, was one such case.

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The American Rescue Plan Act (“ARPA”), signed into law on March 11, 2021, obligates employers to pay COBRA insurance premiums for individuals who suffer job loss. Under the plan, employers receive the subsidy, which they pass along to COBRA enrolled former employees, through a payroll tax credit on quarterly Medicare taxes. The subsidy period is April 1 to September 30, 2021, and both fully insured and self-insured group plans are eligible for the credit.

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As the coronavirus vaccine becomes more widely available over the next few months, many employers grapple with the question of whether to mandate the vaccine. Following EEOC guidelines, some employers plan to require it as a condition to returning to the workplace (i.e., nursing homes). In contrast, others prefer to “encourage” vaccinations, leaving the ultimate decision to employees. In an effort to minimize health risks and provide peace of mind to employees returning to the workplace, some employers are asking whether they can offer incentives to encourage employees who get the vaccine.

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The recent guidance concerning OSHA’s record-keeping requirements will go into effect on May 26, 2020. Under the requirements, COVID-19 is a recordable illness, which means employers are duty-bound to record cases of COVID-19, if they meet certain criteria.

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Life has changed in ways most of us could never have imagined. Our homes have become our safe havens more than ever before, and our workplaces have spilled over into our home offices, kitchen tables, and family rooms. As we settle into our new normal, we find ourselves connecting to family, friends, and colleagues through Zoom meetings, livestream services, and quarantini virtual happy hours. Without a vaccine, the spread of COVID-19 is a concern that will not quickly disappear. Maintaining a healthy and productive workplace for employees will continue to be a top priority long after the days of walking from the bedroom to the home office have passed.

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On January 7, 2020, the U.S. Department of Labor published three new opinion letters that every employer should review. The first involves an employer’s nondiscretionary bonus payment of $3,000 given to employees who completed ten weeks of training with a promise to complete eight more weeks. In the second letter, the DOL determined that a per-project payment method satisfies the salary basis regulations for exemption under the FLSA. The third letter addressed compliance under the Family Medical Leave Act (“FMLA”).

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Typically used in offices, hotels, hospitals, etc., to provide multiple phones lines within one building, multi-line telephone systems (“MLTS”) are the subject of two new federal laws: (1) Kari’s Law and (2) the Ray Baum Act.

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The Right Talent, Right Now

October 31, 2019

Category: Legal Updates

Employers throughout the U.S. are wrapping up October by participating in National Disability Employment Awareness Month (NDEAM), a tradition that can be traced back to 1945. The purpose of NDEAM is to raise awareness about disability employment issues and celebrate the significant contributions of America’s workers with disabilities. The theme of this year’s outreach effort emphasizes the importance of the subject today: “The Right Talent, Right Now.” “Every day, individuals with disabilities add significant value and talent to our workforce and economy,” said U.S. Secretary of Labor Alexander Acosta. “Individuals with disabilities offer employers diverse perspectives on how to tackle challenges and achieve success. Individuals with disabilities have the right talent, right now.”

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It’s no secret that California is typically viewed as the most employee-friendly state in the country. New employee-favored laws are passed so quickly that employee handbooks can be rendered outdated before they go to print. Employers who have found themselves on the wrong end of a wage and hour case can attest to the fact that one alleged error, when applied to each employee, can be devastating. On top of that, one Labor Code violation often leads to another violation, and so on and so on.

At issue in Naranjo v. Spectrum Security Services, Inc., a decision issued on September 26, 2019, was the question of whether employees who are entitled to a meal or rest break premium (after denial of a meal or rest period in violation of Labor Code § 226.7) may also recover derivative penalties under Labor Code § 203 (waiting time penalties) and § 226 (inaccurate wage statements).

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The EEOC collects workforce data from employers with more than 100 employees (a lower threshold applies to federal contractors). The data collected is used for several purposes, including enforcement, employers’ self-assessment, and for research. Historically, such employers have been required to file annual Employer Information Reports (“EEO-1 Component 1 Reports”) disclosing the number of employees by job category, race and gender.

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If there is one thing worse than sexual harassment in the workplace, it’s retaliation against a victim of harassment as a result of reporting harassment. Existing law in California prohibits an employer from terminating, discriminating or retaliating against an employee because of the employee’s status as a victim of sexual harassment, domestic violence, sexual assault or stalking (Labor Code, Section 230). Assembly Bill-171 (presented by Gonzalez, D-San Diego) seeks to broaden the protections for such victims by providing a “rebuttable presumption” of unlawful retaliation if an employer within 90 days following either the date when the victim provides notice to the employer or when the employer has actual knowledge of the status, discharges, threatens to discharge, demotes, suspends, or takes any other adverse action against the victim-employee. “Harassment” in this context means sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.

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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.

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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.

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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.

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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.

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

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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.

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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.

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