Friday news

In the ongoing hotel/worker labor dispute, the hotels have locked out the laundry worker. The LA Times reports.

Slow week

Dear Readers:

I was sick earlier this week and now I will be hustling to catch up that time. The posting will be light. I expect there might be one case or two coming down that I will want to note. I'm also continuing to see what legislation is signed by the governor, what's going on in the labor conflicts going on right now, and, also the NHL lockout, which I think may be a paradigm-establishing conflict.

Card checks.

NLRB may rule ahead of the election on card-check certifications. The LA Times reports.

Motevalli v. Los Angeles Unified School Dist. Second Appellate Dist. No. B165380

[Just in case it wasn't clear. . .—Ed.]

". . . no cause of action exists for tortioius nonrenewal of an employment contract in violation of public policy."

Judgment below AFFIRMED.

Prachasaisoradej v. Ralphs Grocery Co. 2d Dist. Case No. B165498

The court held that a claim arising from Ralphs' allegedly bad calculations of bonuses arising under the Labor Code and the UCL, and not under a CBA, were not preempted by section 301 of the LMRA and NLRA because the rights arising under the Labor Code are wholly independent of any rights provided by a CBA.

Dismissal is REVERSED and REMANDED.

Read it here.

Post Labor Day News Wrap

Norcal grocery negotiations are ongoing, looking to avoid Socal situation. The San Jose Mercury News reports.

The San Diego Union-Tribune reports on the on-going problem of workers returning from Iraq to find their jobs gone.

The rest of the country is having issues with the new OT rules. The WSJ (sub. req'd) reports.

And, the most important issue facing the Governor this month: The Ferret Liberation Act of 2004!

Job numbers

So much in life is what you expect. The same result can be a disappointment to some and a boon to others. Since we've had a very bad year in terms of job growth, 144,000 new jobs all of a sudden looks like a big number (and indeed it was over 4 times last month). It's not. Don't deceive yourself. It doesn't even make up for population growth.

CLEL hase been pondering the effect this has on our practice. If anyone has some thoughts, please post a comment. It seems to CLEL, when there is a job shortage, it's clearly to the advantage of the managment side in a labor negotiation; in "employment" law, however, the less jobs are available, the more likely you are to see the recently departed file for any money available. An unusual contradiction for practitioners of "labor and employment" law.

The Labor Battle of the Decade?

I was going to say century, but that would really be stretching it. Plus, I know that professional athletes hardly conjure the labor strife of 100 years ago, but the NHL battle coming up may have a touch of everything.

I have to admit, though, that the NHL labor talks are extremely high stakes. Literally--not rhetorically--the future of the league is riding on the outcome.

Yet another round of talks are going nowhere. The owners' stategy has been suggested to be to aim for a labor impasse and unilaterally impose their hard cap next year. The current CBA will expire one day after the World Cup finale, on 9/15.

If you are unfamiliar with the NHL labor dispute, it's a little more complex than the usual millionaire versus billionaire conflict of major sports. First and foremost, the NHL's popularity has plummeted in the last ten years. Teams have been added in areas where hockey is not a traditional sport, instead of putting more teams where it's sure to be popular. There have been several bankruptcies of late, yet no contraction.

Since CLEL purports to track California labor law issues, it's worth pointing out that the California teams have been very successful of late. San Jose was in the final four this year, and Anaheim went to game 7 of the final before losing. But they haven't had the attendance you might expect from championship caliber teams.

CLEL will continue to follow this brinksmanship.

No Compromise on UCL

Via "The UCL Practitioner": SB 185, the legislative compromise on the UCL, failed to make it through the last minute rush at the State House.

CLEL did not favor the chances of SB 185, as it was last amended, passing. If for no other reason than the exemptions in it.

SB 185 Fails?

I didn't see anything in the papers, and likewise, the status page says it was never enrolled, and they've had a day to update--probably lots of updates today though.

So, as far as I can tell, SB 185 didn't make it. (Please comment below if you have further info.)

Let the brinksmanship begin.

More Movement on SB 185

Yesterday, the Assembly further modified SB 185. The notification provision of the earlier amendments weren't that exciting. This adds

• Court review of settlements for suits brought on behalf of the general public. The procedure for the review is set out.
• Unions and nonprofit legal services are exempt from court review of the settlements.
• A notice provision. (You have to send the defendants a poster! Oh, the irony--it has to be 14 point or else you get reported to the Labor Commissioner The State Bar).
• Party must plead injury in fact for restitution, unless plaintiff is a nonprofit, union, or nonprofit legal service.

So, it's basically Prop. 64, minus some standing requirements, with exemptions for certain kinds of groups.

Sav-On Class Action

The big news, apparently, is that the California Supreme Court approved the certification of a class in Sav-on Drug Stores, Inc. v. Sup. Ct. (Rocher). The Times also has an article. So does the Chronicle.

Both sides respond with talking-points answers. The labor side says that, because the enforcement agencies are underfunded, this is an important decision—CLEL doesn't know how agency funding relates legally to the presence or non-presence of a procedural device. Industry responds, predictably, that this will send more jobs away from California. This talking point is losing credibility over time, when San Bernardino county's net job growth in July was almost equal to that of the entire United States.

SB 185 Amendments

SB 185 has been amended. It adds B&P section 17203.7 requiring submission of private complaints to the Attorney General within 10 days of filing.

And that's it. . .

I'm not sure this is really what they're proposing as an alternative to Prop. 64, but this is how it stands right now, on its way to the judiciary committee.

Min Wage Hike "News"

The Orange County Register runs a story claiming that the Governor is expected to veto the minimum wage hike, but doesn't say who is expecting it. And only ads the Governor's campaign promises and his support from business as reasons why. While CLEL agrees that a veto is likely, CLEL doesn't appreciate this kind of reporting.

Legislative Marathon Continues

Lots of news today...

The minimum wage bill (AB 2832) is headed for the Governor's desk. The LA Times reports.

Another bill, one that slipped through CLEL's wide legislative scans (guffaw) is also headed for the Governor's desk. This one (SB 1841) requires employers to notify employees before monitoring employee email or tracking employee web site use. The Chronicle reports.

Continuing the legislative marathon, an outsourcing bill (AB 1821) passes an heads for the Gov. This bill apparently goes against both industry and a PPI report on its beneficial effects for California workers. The Times reports.

[CLEL would bet on all three of these being vetoed, especially SB 1841.]

The Times has another article on UCL reform, but there is no actual change to the bill, SB 185.

The Bee has an editorial on the prison guards' CBA.

Happy Tuesday.

Last Minute UCL Movement?

The SF Chronicle reports this morning on the behind-the-scenes machinations between the Governor and legislators to amend the UCL without resorting to Prop. 64. The article mentions that the Sierra Club is involved in the talks, and that the Governor is trying to protect his "green" reputation but does not explain if this means the reforms will have special provisions for environmental protection only. There is still no movement on SB 185 (the gut and amend vehicle for the reforms) as of this writing.

The LA Times notes the new federal overtime regulations are now in effect.

AB 2832 Takes Next Step; UCL Reform Compromise?

AS MENTIONED Wednesday, the Legislature is considering enacting its own minimum wage hike. The Senate has voted on, and passed the measure, AB 2832. The 22-14 vote is not enough to get it passed a veto. The Governor has not taken a position yet. [CLEL notices in at least one place in the Labor Code, in Section 1194.2, the relief is granted as to any "payment of a wage less than the minimum wage fixed by an order of the commission." (Emphasis added.)—more work for the courts!] The Bee reports.

United Airlines is trying to cancel its pension plans. The LA Times reports.

Via The UCL Practitioner: "SB 185. . .is now slated to be reworked to include changes to 17200, the state's unfair competition law, according to sources familiar with the legislation." As of this writing, this change hasn't yet occurred. CLEL will keep tabs. [CLEL wonders what the chances of this going through are since money and efforts have already been spent on a stronger Proposition 64. That said, Prop. 64 is struggling mightily in early polls. Maybe that's all the leverage required.]

Legislative Marathon, Costco Sued

Costco was sued for sex-based discrimination. The plaintiff alleges that the company denies women promotions into the companies upper echelons. The LA Times reports.

With this year's legislative session winding down, legislators are churning out bills for the governor's review.

Remember when CLEL noted the shutdown of the IWC? Well, here's a bill to do one of its jobs for it. AB 2832 raises the minimum wage to $7.25 as of July 1, 2005, and $7.75 as of July 1, 2006. The last increase was in January 2002. There is not much chance, based on national CPI numbers, that this increase would exceed inflation.

Carter v. Department of Veterans Affairs, 4th App. Dist., Case No. E030908

This case should teach all who read it the value of a good legislative intent research firm.

The Court of Appeal held that the legislative amendment rejecting the Salazar interpretation of sexual harassment liability under FEHA was not retroactive. The Court held also that this amendment was not a mere clarification, but, rather was a change in the law because it changed the possible liable parties to only employers and the possible bases of harassment from any FEHA-prohibited kind to only sexual harassment.

We find that applying the amendment retroactively is constitutionally objectionable. Constitutional considerations of due process require that citizens be fairly apprised of laws affecting their conduct. Here, the import of the amendment is to impose substantial new obligations on employers, and to impose such liability, without clear notice, for conduct which was already completed in the past.

Judgment of of the trial court is REVERSED.

Reeves v. Hanlon Cal. S. Ct. No. S114811

The California Supreme Court holds that interference with an at-will employment contract is properly analyzed as a tort of interference with a prospective economic advantage (i.e. does not require the existence of a contract) because the interference has to do with the future relationship.

Judgment AFFIRMED. (Unanimous)

The SF Chronicle has this report on this case.

California July Job Numbers

While the United States as a whole added an anemic 32,000 jobs in July, California actually lost 17,300. The LA Times reports.

California's employers went into a hiring funk in July, cutting a net 17,300 jobs and raising concerns that the state's economic recovery has lost steamalong with the nation's.

On the other hand, some areas of the state showed improving prospects, including surprisingly, the East Bay (The Contra Costa Times reports), and, not surprisingly, the Inland Empire (the Riverside Press reports) and the Central Valley (the Fresno Bee reports).

The Inland Empire added 25,900 jobs in July, almost equal to the entire net growth in the US.

Haney v. Aramark Uniform Services, Inc., 5th App. Dist., Case No. F042980

The Court of Appeal held that just because plaintiff alleged that he engaged in what might be termed "concerted activity" (and therefore subject to the NLRA) when he tried to discourage fellow employees from going along with a fraudulent business practice, because interpretation of the CBA was unnecessary, that a cause of action for termination in violation of public policy could stand.

Judgment in favor of Defendant is REVERSED and the case is REMANDED.

Guv signs Sue Your Boss Reform

Another piece on the "Sue Your Boss" reform from the Bee [which I'm becoming a bigger and bigger fan of—CLEL] on the occasion of its being signed into law.

Comment: With respect to both the "Sue Your Boss" law and the Unfair Competition Law (up for reform as Prop. 64), none of these reports have asked the question as to why it wasn't just simpler to fund the responsible agencies. CLEL can guess why, but would like to hear it from the legislators themselves.

Bay Area grocery unions are calling for boycotts if the supermarkets call for benefit reduction. The Contra Costa Times reports.

Labor relations news; Fed hike.

Yesterday, the Fed hiked the federal funds rate 0.25% to 1.5%. CLEL was stunned. The Fed states that its decision is based its observation that oil prices, and not a fundamental problem with the economy's growth caused the recent employment number. The WSJ reports (sub req'd.)

In other news:

The LA Times reports that LA Hotel workers are requesting a federal mediator.
The LA Times reports that a Wal-Mart is alleging a UC study was Union funded.

Happy Tuesday News.

Daniel Weintraub has this opinion piece in the Sacramento Bee about the history of the "sue your boss" law, SB 796.

Dan Walters has this report in the Bee about what's on tap for the rest of the legislative session.

[The Bee is out ahead of all of the state's papers on legislative coverage in my opinion.]

And, completing the hat trick, the Bee has this article on the Northern California grocery labor talks.

Slow News Day

Slow news day. Nothing catching CLEL's eye today. The legislature's Labor & Employment Committee is meeting today. We'll see what they come up with.

July Numbers Disappoint

The Sacramento Bee reports that "Workers' comp savings not yet felt."

The big news of the day is the latest jobs report showing anemic job growth in July, and revising June and May numbers down as well, the NY Times reports. Only 32,000 jobs were added in July according to the benchmark household survey. 150,000 jobs are required monthly to keep up with population growth. This result reflects about 15% of the results economists were expecting. Read the economists reactions in the WSJ (sub. req'd) [N.B. the more sanguine analysts argue that the actual number of jobs gained was higher, more like half-way in between the Establishment and Household data, but the Household survey continues to be the benchmark.—Ed]

NHL Labor Woes

On a slightly different note ...

The NHL is having its own labor woes. After a lockout shortened the 1994-5 season to just half a season, they parties are back at it this year. The players refuse the league's demand of a salary cap. NHL players earn 76% of revenues in salary, higher than any other major sporting league in the US. The latest talks today went nowhere, the AP reports.

(There are three NHL teams in California. The San Jose Sharks, Western Conference Finalists in 2003-4, the Anaheim Mighty Ducks, Western Conference Champions in 2002-3, and the Los Angeles Kings.)

California Performance Review Highlights

The CPR states that:

The variety of programs responsible for unemployment insurance, workers’ compensation and occupational health and safety frustrates businesses attempting to comply with the law and workers that deserve benefits. In addition, the duplication of administrative functions results in additional and unnecessary costs to the state.

It proposes the following fix:

...the Department should have an office that integrates all of the various appellate programs—Unemployment Insurance, Workers’ Compensation and Occupational Safety and Health [and Fair Employment & Housing (see chart)]—to ensure that decisions are fair and consistent and provide flexibility in assignments to prevent backlogs. The Department should centralize administrative support functions to ensure that all the operating divisions concentrate on achieving program success.

It this happens, we could see some major changes in procedures, because these different agencies work quite differently. The mostly ministerial changes proposed to the Labor Code are here.

NLRB Criticizes Nurses' Bedside Manner

The Los Angeles Times reports that the NLRB has thrown out a vote to unionize by nurses at Cedars-Sinai Medical Center because of intimidation tactics.

Norcal Grocery Strike?

The Sacramento Bee reports :

Four Northern California supermarket chains and Local 588 of the United Food and
Commercial Workers are scheduled to resume labor talks Monday, while the union's
members continue to work under terms of a day-to-day contract extension that so
far has averted a strike.

SB 1809, as enrolled: first look.

SB 1809 provides for the follwing

• A redistribution of civil-penalty civil actions to 75% to the agency for eduction, and 25% to the employee.
• Procedural and administrative requirements for proceeding with the suit. For most violations, written notice to the Labor and Workforce Development Agency is required. If they investigate and give a citation, no lawsuit can commence. Other violations (there is a long list in new LC 2699.5) can be "cured" after written notice, but only three times per year.
• Gives judges discretion to lower award amount.

  "a court may award a lesser amount than the maximum civil penalty amount
  specified by this part if, based on the facts and circumstances of the
  particular case, to do otherwise would result in an award that is unjust,
  arbitrary and oppresive, or confiscatory." [new LC 2699(e)(2)]

• Repeals requirement for filing any signed application with the DLSE (LC 431).
• It amends LC 98.6 to include an anti-discrimination clause for employees who enforce these laws.

There are two retro-activity clauses, one for the posters and one requiring the court to supervise any settlements.

Read this blog on My Yahoo.

Just in case you haven't noticed, I thought I'd point out a new feature of My Yahoo that is quite excellent. If you click on 'choose content' and add RSS Headlines (BETA), you can then get all of the headlines from this blog (and most others) listed as a news item in your Yahoo page. You can also use this "syndication" feature with any RSS aggregator, including http://www.bloglines.com
The URL is http://calemploymentlaw.blogspot.com/atom.xml

Reeves v. Safeway Stores, Inc. 6th Dist. No. H024375

The Fair Employment and Housing Act, Government Code sections 12900 et seq. (FEHA), prohibits an employer from firing a worker in retaliation for the worker’s complaining about incidents of sexual harassment in the workplace. (Gov. Code, § 12940, subds. (h), (j).) An employer can defeat such a claim by showing that it acted not in response to the worker’s complaints but for legitimate, nonretaliatory reasons. This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor’s retaliatory motive was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.

Summary Judgment in favor of defendant REVERSED.

SB 1809 Passes

The changes to the "Sue your boss" law have passed the Legislature as part of the budget deal. It will take effect immediately upon the Gov's signature, which is expected tomorrow. CLEL will break down the changes next week.

SB 769 and the budget; Ralphs NLRB problems

• The Sacramento Bee has a report on the effect of the SB 769(aka "Sue Your Boss" or "Bounty Hunter" statute) compromise in the budget (which has passed the Assembly).

The compromise forbids employees from filing lawsuits against companies that do not post signs explaining workers' rights. The exceptions are posters regarding payroll and worker-injury laws.
For more serious problems, including violations of the wage and hour laws, a worker can still sue - but the employer is given a grace period to fix the problem first. The worker must inform the employer and the state of the problem, and if nothing's done, the worker can go to court. Depending on the type of violation, the grace period can last 150 days, Dunn said.

According to the report, this is a version of Dunn's own amendment to SB 769, SB 1809. 

• The San Jose Mercury news reports less than half the anticipated number of workers have taken advantage of the Family Leave Act.

• Ralph's apparently hired back some of its striking workers during the strike, the OC Register reports.

The allegations were first raised by the United Food and Commercial Workers union, which sued Ralphs in January, alleging that the company had illegally rehired more than 200 employees under false names and Social Security numbers after the workers were locked out in October.
Ralphs later confirmed that it was cooperating with a U.S. Justice Department probe of the allegations and that a federal grand jury had been convened to hear them.
The union's suit was dropped as part of the February settlement that ended the lockout. However, a National Labor Relations Board inquiry into the allegations is continuing.

The fallout from the grocery strike continues...

Legislative/News Round-Up

AB 3051, relating to workers' compensation and death benefits for firefighters is up for a second reading after being approved in one committee.

SB 1521, the Displaced Janitor Opportunity Act, vetoed by the Governor, is up for override in the Senate, if they get to it.

Nothing else significant to report in the news this morning.

Nyulassy v. Lockheed Martin Corp.

The Court of Appeal (6th Dist.) handed down a decision today affirming a trial court's finding that an arbitration clause between employer and employee was unconscionable when the agreement required only the employee to arbitrate all claims against the employer, required the employee to have discussions with his supervisors before filing for arbitration and a 180-day time limit.

Order denying defendant's motion to compel arbitration AFFIRMED.

Nyulassy v. Lockheed Martin Corp., Cal. App. 6th Dist. No. H026704

Bounty Hunter Law Compromise in Budget Deal

The LA Times reports this morning that there are changes coming to the bounty hunter law in the budget deal.

After weeks of resistance, Democrats finally agreed to weaken what the GOP has dubbed the "sue your boss law." That law allows workers to file multimillion-dollar lawsuits against their employers for a variety of offensives — some of them as small as using the wrong size type on posters that inform employees of their rights.The compromise would allow employees to sue for major violations, but only if the Labor and Workforce Development Agency refuses to act. And Democrats agreed to prohibit any suits for such minor violations as failure to post labor rules.

The deal hasn't been voted on yet, and may face opposition by fiscal conservatives and some liberals, with the center suppporting it, but chances are this deal goes through. The law's original author agreed with the changes.

Sen. Joe Dunn, D-Garden Grove (Orange County), said he was always open to changing the law to prevent frivolous lawsuits. "This law was never about lining the pockets of trial lawyers, it was about enforcing the labor code," said Dunn, who wrote the original law.

This change will bring Labor Code enforcement suits more in line with other kinds of employment related disputes by apparently requiring administrative review first. I haven't seen the text of the proposed amendments yet.

More to come...

News Summary

• George's Employment Blawg has this great entry on NLRA issues for companies without unions.
• The bounty-hunter law is still in the budget mix, according to the SF Chronicle.

Otherwise, another slow news day.

On the legislative front:

• a number of workers' compensation bills are in the conference comittee. SB 1071, AB 1215, AB 1578, AB 1579, SB 191, SB 223, SB 229, SB 354, SB 451, and SB 757.
• SB 1687, an act pertaining to advance-fee talent services, which would amend LC 1701 to expand the definition of a"advance-fee talent services," received its third reading in the assembly on Saturday.
• SB 534, requiring long-handewd tools for agricultural workers was sent to the inactive file on Saturday.

Also,

News Update

The SF Chronicle reports that the "bounty hunter" law is still in the mix on the budget deal; and public employee unions take the offensive against Republicans on the budget.

Legislative update: While I'm still a novice at reading the legislative information, there doesn't appear to much of interest going on right now. I'm keeping my eyes on a few bills that were vetoed that are up for override, but they don't have the votes. We'll see.

 

(slow) News wrap

Slow news day, folks. Too bad this isn't a criminal law blawg, or I could post until Christmas on Blakely (which even has it's own blawg!)

Update blawg info

I've decided that this new template looks tons better. It seemed like the logical time to do this, since a rebuild was in order.

My name is Jon Storm. I practice labor and employment law in San Luis Obispo, California.

Coke Strike

The San Diego Union-Tribune has this report:

About 500 Teamsters yesterday struck the Coca-Cola Bottling Co. of San Diego after four months of negotiations failed to achieve a new union contract. The key issue in the dispute is health care costs for workers, the union said.>

Yet another strike over health care costs.

Coming soon: legislative roundup

I had intended to begin doing a "legislative roundup" every few days this week, but the leginfo.ca.gov site is refusing to cooperate with my plans.

Perhaps worth noting is that State Senator Martha Escutia (D-Whittier) is leading in the race to be the next President Pro-Tem. Sen. Escutia held the failed compromise talks over UCL reform.

Time has not yet permitted me to get on top of all of the bills currently before the legislature that might impact the Labor Code.

Labor Market Summary

Steven Roach of Morgan Stanley has this summary of the labor market.

We hear repeatedly that the disconnect is all about lags or productivity. I don’t buy it. Instead, I believe that a new force has come into play that is now altering the fundamental relationship between domestic demand and domestic employment in the United States. I call it the global labor arbitrage — the IT-enabled efficiency tactics that allow US companies to substitute high-wage domestic workers with like-quality low-wage foreign workers in goods producing and services-providing functions, alike. The lack of pricing leverage in today’s climate makes this arbitrage an increasingly urgent competitive imperative. In my view, the global labor arbitrage is likely to be an enduring feature of the macro climate — raising the distinct possibility that subpar job creation in the US could well be here to stay for the foreseeable future.

Students Bring Class Action Disability Discrimination Suit.

SFgate has this report.

Would-be California medical students with learning disabilities filed a discrimination suit Monday saying their prospects of becoming doctors are being thwarted because they aren't given enough time on the medical school entrance exam.

The suit arises under California law in Alameda Superior Court.

3d Cir.: LMRA Shields Attorneys From Malpractice

A lawyer hired by a union to represent one of its members in an arbitration hearing cannot later be sued by the worker for malpractice because the federal Labor Management Relations Act effectively immunizes the lawyer from such a claim, the 3rd U.S. Circuit Court of Appeals has ruled.

The Legal Intelligencer has this report.

News Roundup

The WSJ (sub. req'd) has this report: CPI up, wages flat; and this piece on legal weblogs. No mention of CL&EL (; Also, Boeing settles a sex-bias suit.
 
Will Wal-Mart get caught up in this settlement trend? [Not unless it really starts looking bad is my guess.]
 
The Sacramento Bee has this report on the status of State Fund going forward after the Schwarzenegger work/comp reform
 
Port business is boom, swelling the ILWU's ranks. The LA Times reports.

Brown University, NLRB No. 1-RC-21368

Last week, the NLRB handed down a decision reversing their decision in NYU holding that graduate students are "employees" at private universities (NLRA doesn't cover state employers.)
 
The central rationale seems to be that the relationship between students and the univeristy is "educational" and not "economic." (Does this problematize post-doc fellowship appointments, etc.? are professors on tenure-track "primarily economic" in their relationship vis-a-vis a university?)
 

State Budget Hinges--in part--on "bounty hunter" law.

The LA Times has this report:

Many GOP lawmakers say they won't support a spending plan unless the Legislature repeals what they call the "sue your boss" law, which this year expanded opportunities for workers to file lawsuits against employers.

News Roundup

* Here's a novel legal theory: "Protester Tells Court: Wages Aren't Taxable." The LA Times has this report.

* Morgan Stanley settles a sexual discrimination suit minutes before trial. They agreed, in the consent decree, to outside monitors on gender bias, and increased training against discrimination. The WSJ has this report (sub req'd);

Agosta v. Astor, 4th. Dist. No. D04220

This ruling continues contouring the doctrine of at-will employment and its relation to contract-relationship torts. Unlike the covenant of good faith and fair dealing, which does not lie when an at-will employee is terminated, the employer cannot avoid tort liability for fraudulent inducement just because the employee's relationship with the employer is at-will.

News Roundup

* The Contra Costa times reports Bay Area wages are growing more slowly.

* The LA Daily news reports has an interesting, two-sided report on UCL reform. (See this piece, via The UCL Practiioner, from the San Jose Mercury News rounding out the donations.)

[Ed: Industry seems to support turning UCL into class-action like lawsuits. There doesn't seem to be much focus on the issue of whether or not private attorneys-general are democratically accountable.]

* Not much legislative action lately because of the budget impasse.

* The aforementioned potential port strike was averted. The LA Times has this report.

Ninth Circuit Myth Exploded

The Sacbee (via Howard Bashman) has this article:

Despite a few attention-grabbing reversals - as when the Supreme Court threw out the circuit's ruling against "under God" in the Pledge of Allegiance, for example - about one in four 9th Circuit decisions reviewed by the high court met with its approval. Only four of the nation's 13 circuit courts did better. Six had 100 percent reversal rates.

The Ninth Circuit has been more ideologically balanced for years.

Minimum Wage

This article in Slate examines the recent minimum wage studies and suggests that earned-income tax credits are a prefereable measure.

Longer Hours, Not Higher Productivity Enriches America

According to this article it today's WSJ (sub. req'd).

It's otherwise been a slow week.

Another Port Strike Looms

LA Times reports labor contract talks between industry and labor broke down last weekend. At issue: internet software that allows customers to bypass the clerks.

The last port shutdown cost billions of dollars and has vast ripple effects.

Europeans Extending Workweek

A report in today's NY Times, here, reports that Europe--France and Germany at least--are extending their work-weeks, because experiments in lesser hours per week haven't reduced unemployment. The article does not explain the theory behind that macro-economic connection, and seems to suggest that competition from lower-wage countries has more to do with it.

Wage Growth Study

In an otherwise slow news day in this blawg's focal area, I found this interesting study:

California cities with best wage growth (nationwide):
(4) Santa Cruz
(6) San Luis Obispo
(10) San Francisco-Oakland.

California cities with worst wage growth:

(4) Stockton
(5) Modesto
(6) San Bernardino
(8) Bakersfield

This is an interesting study, but it would be interesting to see, assuming that inflation is otherwise equal nationwide, whether these wage trends beat the real estate market.

New MoFo Update

MoFo has a new labor & employment law update here, by James E. Boddy.

"A Revised Roadmap For Disability Access in California"

Labor Code 96(k) Interpreted

A number of labor & employment law cases were handed down by California Courts yesterday, but I think this one is most important:

Grinzi v. San Diego Hospice Corp. 4th Dist. Case No. D04231.

Without knowing the full facts of the case, or the position the lawyers were put in, it is somewhat unfair to say this, but, isn't it in the first week of Con Law that the First Amendment only protects against government intrustion?

An employee was term'd, according to her, for participation in the "Women's Garden Circile", according to the employer for unauthorized use of their e-mail system. Here's the beef:

By so specifying rights "otherwise protected by the Labor Code" and "under the
Labor Code," the Legislature has indicated an intention to limit the proscription against
terminations for the exercise of "any rights" to the exercise of those rights "otherwise
protected by the Labor Code." Further, the initial portion of section 98.6, subdivision (a),
proscribes terminations for several kinds of conduct delineated in "this chapter,"
including conduct under section 96, subdivision (k), and "Chapter 5 of Part 3 of Division
2," or filing claims or proceedings with the Labor Commissioner. (See fn. 10, ante.) As
such, these provisions only prohibit terminations for conduct "otherwise protected by the
Labor Code." In this context, the reasonable conclusion is the Legislature also intended
the phrase, "any rights," in the final portion of section 98.6, subdivision (a), to similarly
refer to rights "otherwise protected by the Labor Code." Consequently, for Grinzi's claim
to survive under this provision, she must allege her termination occurred because she
exercised a right protected by the Labor Code. As discussed, Grinzi does not allege she
exercised such a right.

Many had been reading 96(k)/98.6 to limit employee reaction to any outside lawful conduct. Narrowing it to include only rights protected by the LC is dramatic in that regard.

IWC Shut Down

The Sacramento Bee reports that the IWC is shut down for lack of funding, and lack of support from both parties.

In place of the commission, future decisions about the minimum wage, overtime rules and other working conditions will be left up to the Legislature. Some workers may also pursue lawsuits to enact changes.

We'll keep this one tabbed.

Employment Figures Disappoint.

The labor statistics for the month of June were announced this morning, and they were vastly lower than expected by forecasters. The NYT has this report, and the WSJ this (sub. req'd.)

The forecast of the unemployment rate holding steady were correct. Wage growth slowed as well. This figure represents a number lower than the oft cited 150,000 per month required to meet population growth. It is worth pointing out that recent polling shows worker less secure than economists in the ability of the market to create jobs. Score one for groupthink this month.

Job Watch (part of the Economic Policy Institute--a labor-side think tank) has some interesting stats on underemployment. The Heritage Foundation (a conservative think tank) paints a rosier picture:

Some analysts will see these numbers as a disappointment; they're anything but that. The economy continues to add jobs broadly, and continued growth and positive earnings should see this trend maintained for some time.

Proposition 64 Poll

According to The Recorder, via The UCL Practitioner, a poll shows voters favor Proposition 64.

Nothing on the website of the group sponsoring the proposition.

Janik case uproar

Blawgosphere is in an uproar over the Janik v. Rudy, Exelrod & Zieff case, which apparently will require B&P 17200 counts in business litigation.

The Legal Reader has this pro-reform comment here, and the pro-17200 UCL Practicioner site has this comment.

One argument raised by Rudy, Exelrod was that before the Cortez decision, there was no authority to support a UCL claim for unpaid wages. Slip. Op. at 16-17.

Before we all get carried away, please understand the procedural posture of this case. This case reversed a demurrer on the grounds that there was in fact a duty owed to certain class members; it is not an imposition of a fine or a judgment.

So, stay tuned.

Effect of Fed hike; jobs report on its way

All the papers have news on yesterday's Fed rate hike. The WSJ (subscription req'd.) reports that the Fed did an excellent job of preparing the economy for the hike, so effects should be built-in to any decisions at this point. Economists consider the rates to be approaching a neutral, non-stimulus, non-restraint level sometime in 2005. Labor costs are aceelerating.

The NY Times reports that jobless claims rose by 1,000 last week, and reports an economic forecast of 240,000 new jobs in June (report will be out this week.) Nevertheless, the unemployment rate should remain at 5.6%. Workers' earnings should rise about 0.3%.

Factory activity cools in June, prices rise in the WSJ (subscription req'd.)

---

What does it mean for lawyers?

Right now, the indications are that hiring is up, but perceptions haven't quite caught up with that. People will be working harder, but may be more litigious in times like these.

In tightening economies, employers have historically faced increased exposure for employment litigation and administrative investigations. Layoffs, reductions, and restructuring frequently trigger legal action. Our current economy is no exception.

--The Denver Business Journal, 3/15/02, citing EEOC data.

Mission Statement

This legal weblog (b-law-g) is dedicated to issues of labor and employment law in California. A finer definition than that would render this discription over- and under-inclusive.

I plan to include more than case law summaries and analysis. Law and lawsuits don't exist in a bubble. There are political and economic forces at work that shape them. To the extent I believe there is a causal nexus, those things will be covered as well. This will include at a minimum, tracking and discussions of pending bills in the legislature (and, sometimes, in Congress), and discussions of economic indicators that are relevant.

I am going to do my best to give objective, neutral commentary on these issues. This means I won't be championing issues on the side of the plaintiff's bar or the industry side. That's not the point. There are thousands of blogs that amount to an un-edited, narrowly read op-ed page.

This is also not a blawg of record. Not every issue will be documented, largely because they are already so well documented. Just to give an example, the Wal-Mart case is causing a big buzz in the employment law world right now, but there's nothing really that earth shattering from a practitioner's point of view.

I am leaving comments open for now, and I invite them--from any side of the issue. Letting others voice their comments on the issue will provide interesting insight to the reactions of all sides, but, again, I won't be championing any side here.

Update: This site has received the ok from the firm, so I will no long be anonymous. My name is Jon Storm. I practice labor and employment law in San Luis Obispo, CA.