Trop v. Sony Pictures Entertainment, Inc.

Plaintiff's statements that she had a fibroid removed and that she was hoping to become pregnant did not establish that employer was aware of pregnancy, and employee’s statement to employer at Christmas party that "[i]t looks like I get to have one of these," referring to a baby, was too ambiguous to place employer on notice of pregnancy. (However, the court notes in a footnote that Plaintiff didn't complain she was fired for attempting to become pregnant.)

2d Dist., Div. 5 No. B174101

(No free advice this Wednesday, I'm off to a conference)

King v. Tri-City Medical Center

This one is really more for the "interesting and sort of funny" file than for the practice hotsheet. The plaintiff checked the wrong box on her DFEH complaint, and, as a result, the Court of Appeal held that her case was dead.

While it's amazing how much a little checkbox can matter, it's also amazing how much courts can disagree. Courts have gone the other way too.

FREE ADVICE WEDNESDAY: Easing the blow of a firing.

QUESTION

I run a small business and I can't afford to offer much of a severance package to an employee that I need to get rid of, but I'm not sure what else I can do to get a release.

ANSWER

I get this one all the time. If you believe you have a "high risk" termination, you're wise to try and get a release. It can't cover everything, but it will sure help. If you're running a smaller business, it's probably going to hit you hard in the wallet to issue a chunk of severance (which allays the first concern of the departing employee: how do I pay my bills and get my next meal). Here are a few ideas you can use that are low cost.

(1) Allow the employee to resign, but agree not to contest unemployment.
(2) If you are covered by it, offer to pay a month of COBRA instead of salary.
(3) Offer a letter of recommendation (beware this one if they cause damage at the next place)
(4) Offer to expunge their file of some bad things.

That should give you enough chips in your exit interview to get a release out of many people.

Restatement of Employment Law?

The ALI is gearing up to draft an employment law restatement. It sounds like it could be somewhat interesting at first glance, but once you see what's in it, it sounds silly.

The right way to do something like that would be an exhaustive 50 state project, and could be a useful tool. I know in my practice, I compare federal and state law often, but I just don't have much reason to see what they're doing in, say, Kentucky on overtime (if anything). After a while, I think you'd start to find that a few positions would evolve and could be great arguments to use, especially if you're in appellate practice.

But, what's coming doesn't sound very good. Maybe as a resource for a law school textbook, but not much else.

See this critique, via Law Memo.

UPDATE: Labor Code 226.7 Decision

Apparently, the case in question has been mooted and it seems unlikely that a decision will be published in the case.

Labor Code 98, 98.2 and "Procedural Due Process"

I've started to wonder: at what level, if any, does a wage claim heard with the informal procedural rules of a DLSE hearing start to touch on due process? The legislature has decided that at $25,000 civil cases require more deliberation, discovery, and so forth. Congress has determined that cases above $75,000 between citizens of different states require the protection of a theoretically less biased federal judge.

If you've practiced in the DLSE, you know that either side can get a lot of questionable evidence into the record, and it's all left to the discretion of a hearing officer. Does the availabilty of de novo review eliminate this concern? (And if so, what effect would AB 382 have on that?)

It seems to me that if these sections are open to review right now, two possibilities should be considered: (1) cases over a certain amount ($100,000?) are kicked directly to the Superior Court, or (2) cases over that amount are given much broader discovery and tighter evidence rules at the DLSE hearing.

Free Advice Wednesday (late)

QUESTION

Under the Equal Pay Act, does someone hired on the same day, with the same responsibilities as me have to be paid the same amount?

ANSWER

Only if the reason for paying you differently is done on the basis of your gender. For purposes of other laws, any illegal discriminatory basis may apply. In general, however, there is no blanket rule.

Disclaimer: These questions are derived from questions I sometimes get, with different facts, laws, and so forth. Every situation is different, so talk to a lawyer if you have questions.

Welcome and Thank You.

There has been an unprecedented level of activity on this page this week. For those of you that are new, welcome! I thought now would be a good time to revisit my "mission statement" for this page. I started this "blawg" on July 1, 2004.

Here's what I initially set out to do:

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. * * *

This is also not a blawg of record. Not every issue will be documented, largely because they are already so well documented.

I think I have mostly lived up to that over the last 11 months. I'd like to add some new parameters. I have not covered "traditional labor" issues, because I think those are well documented elsewhere. I had planned to cover the NHL lockout more closely than I have because it has some interesting dimensions (first and foremost, the union has a lot of wealthy members) and interesting implications. I haven't found much to add to the narrative there, though.

My niche has become the evolution and development of the labor laws of the state of California, and I hope to continue to follow that path.

Any input is appreciated and welcome!

Court of Appeal Holds 226.7 Imposes Penalties

I hear that a California Court of Appeal has certified an opinion for publication (possibly today) holding that Labor Code 226.7 imposes penalties not wages. This also means recovery under the UCL will not be possible. It also either confirms or bolsters the claims in the new regulations.

I'll post more when it shows up on the docket.

My AB 879 Article; AB 879 Update

Members of the State Bar of California's Labor & Employment law section can read my article on AB 879 in the California Labor & Employment Law Review here. (p.18)

The Assembly Floor and Committee analyses of the bill are now available.

Support for the Bill has increased a great deal:

• California Conference Board of the Amalgamated Transit Union
• California Conference of Machinists
• California Labor Federation, AFL-CIO
• California Rural Legal Assistance Foundation
• California Teamsters Public Affairs Council
• Engineers and Scientists of California, IFPTE Local 20
• Legal Aid Society - Employment Law Center
• Professional and Technical Engineers, IFPTE Local 21
• Terra Law, LLP
• UNITE HERE! AFL-CIO
• United Food & Commercial Workers Region 8 States Council

And opposition remains only with the California Chamber of Commerce (not informidable alone, to be sure).

On May 9, the bill passed out of Committee 6-2 (along party lines).

DLSE Revises Meal Period Regs Again.

The 15-day comment window on these revisions closes on May 25. The changes are not merely ministerial. (Is the DLSE opening itself up to a Cal-APA challenge?). Here are some of the changes.

• Removes language requiring on-premises meal period to have a place provided to eat.
• Removes requirement that employer make available meal period, only that workers be informed.
• Removes the poster requirement

There is more here from the Orrick firm.

Free Advice Wednesday: Changing Compensation Levels

QUESTION

Can my employer simply notify me one day that he has changed my salary?

ANSWER

If your employment contract is "at-will" California courts have held that employers may change the compensation level, because it is tantamount to ending one agreement and starting a new one. If you have a contract that guarantees a certain income for a period of time, then this probably can't happen. If your the member of a union, you should certainly talk to your rep to see what's up.

However, it should be noted that if you feel this has happened for an illegal reason (race, gender, etc.) it is also a no-no even if you are an at-will employee.

If you're an employer, you should review the circumstances carefully to make sure that your actions aren't having an illegal discriminatory effect or somehow violate a contract.

Free Advice Wednesday: Written Termination Notices

QUESTION
When I fire someone, do I have to give written notice?

ANSWER
Technically, under the Unemployment Insurance Code, you have to give a notice that includes the employee's social security number as well as a pamphlet called "For Your Benefit" to the employee.

Much of the employment law literature focuses on preventing wrongful termination suits, and that, of course is important. While they are more common than many people expect, they certainly don't happen every time. Almost every time, however, you'll have to go through the unemployment insurance process, and making mistakes there can lead to your account getting charged. It won't cost you as much as a wrongful term case, but it can add up. What's more, there's a minimal cost in complying with that regulation.

Sometimes it's the little things.

Do You Have A Camera Phone Policy ? (No, Really)

Nexsen Pruet has this advisory on camera phones in the workplace. Apparently, larger employment law firms are successful at drumming up business by scaring the crap out of employers. Here's their lead-in.

Your company’s confidential documents are being copied. Your biggest competitor has learned your trade secrets. Photographs of one of your supervisors disciplining an employee are appearing on a union organizing website. And, to make matters worse, a sexual harassment charge has just been filed against your company.

Boo! Now, good grief! I'm even getting a tick from reading that. Now, I'm not necessarily saying that you shouldn't have a camera phone policy. But, I think that each of those threats would be covered by a well-drafted policy manual that doesn't list each and every possibility. You run the risk of listing so many things that the list looks exhaustive. And then when the next gizmo comes along, everyone thinks, hey, it's not on the list!

What if people don't know they're not supposed to do those things without explicit mention of the phone? Same problem. They won't make that connection with the next gizmo. Focus on the behavior that's the problem, not every instrumentality of it. Keep sensitive documents secure. Keep meetings confidential if they are sensitive, and make sure you strictly enforce your sexual harassment policies. After all, do you really want an employee to say, "but I didn't take that picture of her butt with my camera phone! It was my camera!"

UFW Hopes For Win on Heat Bill

The Sacramento Bee, the best in my opinion on California politics, reports.

Since 1990, when California officials set up an advisory committee to reduce heat-related issues in the workplace, labor unions have waited anxiously for the state to adopt regulations.

Prodded by Valdivia's death, the United Farm Workers' top legislative priority this year is a bill that would require the state to establish standards to reduce heat illnesses and subject employers who flout the law to misdemeanor charges.

* * *

Last year, Schwarzenegger became what farmworker advocates say is the first Republican governor to sign a UFW-sponsored bill in California.

Bill Tracking Updates

AB 48 - Has been amended to index the minimum wage to inflation, in addition to a phased in hike to $7.75. It was voted out of its first committee 6-2 on April 20. Next up the appropriations (?) committee.

AB 640 (alternative workweeks) had a few slight changes last month, but failed passage in committee. Reconsideration may be granted, but until then, this one seems dead.

AB 875 has been amended to set up triggers to cause employer audits. It passed out of committee in an earlier form, but has been re-referred.

* AB 879 has been modified to streamline procedures with respect to garment workers.

SB 101 has received its floor and committee analyses, as well as support from the Chamber of Commerce.

* SB 174 has been changed from a shell to bill that will allow employees earning less than twice the minimum wage to bring a representative action any time they have to sue for wages. CLEL is upgrading its track of this bill.

SB 184 (talent agency bonds) passed out of committee.

SB 285 was apparently killed by its author, Senator Maldonado. Many expect him to run for Insurance Commissioner.

SB 862 - No action since last update.

SB 940 - Hearing postponed.

Top 10 Funny Employment Law Cases

From Law.com via Blawg Republic:

I like #7, maybe because I just made a joke about blonde's being a protected class earlier this week...

7. The 7th Circuit has ruled that punitive damages awarded to an employee in Lust v. Sealy Inc., a sex discrimination case, were excessive. Tracy Lust was promoted by Sealy to a position in its Madison, Wis., office two months after being passed over for a position in its Chicago office -- and shortly after she filed a charge with the Equal Employment Opportunity Commission. The court pointed out that her supervisor "had a history of making sexist remarks to Lust such as 'You're being a blonde again today.'" But the usually dour Judge Richard A. Posner, in a rare moment of levity, quipped: "Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists."

Free Advice Wednesday: Commissions

QUESTION
I pay my employees based on commissions. Do I still have to pay them minimum wage, even if they don't earn it?

ANSWER
Yes.

There really aren't any exceptions to the minimum wage laws. And the penalties for violating them can be steep. First of all, you can be sued. Second, you can be held liable for the employee's attorney's fees that he accrues to get that money back. Third, you will also incur "waiting time" penalties, up to a month's worth of wages, for the time the employee went without the minimum.

What's worse is, if the employee was previously "exempt" from overtime, an income level dropping below twice the minimum wage (for full time) will also make that employee non-exempt.

Be careful setting compensation levels. It may not seem fair, but you're better off paying a little more to avoid these pitfalls. Just consider it a form of insurance.

Free Advice Wednesday: Can My Employer Make Me Use My Own Car?

QUESTION

Can my employer make me use my own vehicle for work?

ANSWER

Sure.

But it's probably not the best idea that they do that, from their perspective, because it opens them up to liability in situations they might not otherwise have it. From yours, it means that you incur expenses in gas, wear and tear, and so forth. You're entitled to reimbursement for those expenses under Labor Code section 2802. There are handy charts that can tell you how many cents per mile you should get.

UPDATE: The DLSE considers the rates set by the IRS to be sufficient:

DLSE has opined that use of the IR S mileage allowance will satisfy the expense s incurred in use of an employee’s car in the absen ce of evidence to the contrary.

Disclaimer: The above advice is not intended to reflect any actual situation and reflects a casual scan of the law as understood by the author at this moment. Anyone who needs legal advice to meet their particular situation should retain counsel, and SIOULD NOT rely on the above.

Mendoza v. Town of Ross 1st Dist. No. A103878

I haven't found a case I thought was worth posting in a while, but I thought this one at least added something to the parameters of the FEHA.

. . . [W]e conclude that the trial court correctly sustained the Town’s demurrer without leave to amend because Mendoza was an uncompensated volunteer and not an “employee” for purposes of imposition of liability for unlawful employment practices under FEHA.

Mendoza v. Town of Ross, 1st Dist. No. A103878 at 1.

The Opinion goes on to clarify the source of the definition of "employee" for FEHA purposes:

More helpful is the definition of “employee” contained in regulations enacted by the Department of Fair Employment and Housing (the Department) to implement the FEHA. The Department, which was created by the FEHA (§ 12901), defines an employee as “[a]ny individual under the direction and control of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written.” (Cal. Code Regs., tit. 2, § 7286.5(b).) While the interpretation of a statute is ultimately a question of law, appellate courts will defer to an administrative agency’s interpretation of a statute or regulation involving its area of expertise, unless the interpretation flies in the face of the clear language and purpose of the interpreted provision. (Communities for a Better Environment v. State Water Resources Control Bd. (2003) 109 Cal.App.4th 1089, 1104.) Far from being in conflict, section 7286.5, subdivision (b) of title 2 of the California Code of Regulations fills a gap in the governing statute, and provides a workable definition of who may be considered an employee, and thus entitled to the protection of the FEHA.

Thus, on its face, the FEHA confers employee status on those individuals who have been appointed, who are hired under express or implied contract, or who serve as apprentices.

Id. at 6.

Free Advice Wednesday: Maximum Hours For "Salaried" Employees?

Welcome to a new feature of CLEL: "Free Advice Wednesday." I'll be posting on topics that come up from time to time that I think are worth getting out there. Of course, as a disclaimer, you should never do what I say, this is all hypothetical, etc.

---

QUESTION

There's no maximum time a salaried* employee can work, right?

ANSWER

Wrong.

Employees can work 24 hour days, but they can't work for more than six days per week, on average. There are exceptions for emergencies, protection of the loss of life or property, CBAs, and a few other rare circumstances. The DLSE can issue exemptions, though, if they choose to any employee or employer.

It's a misdemeanor if you don't comply and it also has typical Labor Code penalties associated with it too.

References: Cal. Lab. Code §§ 550 et seq.

---

* This is the term that is going to most likely be used in a question asked to me. For the purposes of this question, I'm going to assume that in addition to they're being non-hourly employees they are also "exempt" employees.

AB 879 Amended

AB 879 was changed to provide that CCP 473.5 shall also be effective to provide relief from a forfeiture. See here (PDF).

One In Five Employees!

Yahoo (via LaborProf Blog) reports that "One out of five (20 percent) U.S. workers claims that racial or ethnic discrimination exists in the workplace, according to a national survey by Hudson, reporting that they know of someone who has been denied a job, increased pay or promotion because of their ethnicity. That figure jumps to 31 percent for African-American workers, yet drops to 18 percent among white employees."

I hope you've updated your employee handbook lately and have trained your supervisors on how to deal with these situations.

Storm's First Hypothesis of Employment Litigation

Storm's First Hypothesis of Employment Litigation (I will rename it in honor of the person who really came up with this as soon as I find out who it is--I never come up with anything original): slower wage growth means more employment lawsuits. (I have a closely related hypothesis that the overall number of employment lawsuits directly corresponds to the unemployment rate, also surely not original, but I don't know whose idea it is either).

Apropos of that. . .

Steven Greenhouse reports in the New York Times (reg. req'd) that "Even though the economy added 2.2 million jobs in 2004 and produced strong growth in corporate profits, wages for the average worker fell for the year, after adjusting for inflation - the first such drop in nearly a decade."

The article touches on, but doesn't directly tackle the issue that real wages by quintile of income have been more or less flat for 30 years in the lower quintiles, while the higher end 1% or so has had skyrocketing wages. There are a number of possible conclusions from this. On the one hand, it argues for a system that has decoupled work from wages and is inequtiably distributing the fruits of that work; on the other hand, it shows that the class more closely tied to the market system is doing the best. . . plug that into the social security debate.

I report, you decide. (;

Bill track update; too many emergency regs?

I'm sure you can read all about the Supreme Court's decision on the ADA elsewhere.

The Governor is starting to face some blowback from his (over?) use of emergency regulations. The Times reports.

AB 879 (DLSE procedures) was referred to the committee on Labor & Employment.
SB 101 (pay stub rules) was amended on 3/14, mostly clarifications.
SB 174 (minimum wage) is set for hearing in committee on 4/13.
SB 285 (termination pay) is set for heaing in commitee on 4/13.

Thank You to Assemblyman Torrico

I would like to write a brief thank you here to Assemblyman Torrico, and his staff (especially Lennies Gutierrez) for responding to my questions about AB 879.

CLEL will have a report on the bill soon; I'm trying to get comment from some other organizations at this point.

SB 382 Track; Teachers Work-To-Rule

CLEL will be tracking the as-yet unwritten SB 382 which proposes to reclassify all orchestral players as independent contractors, since CLEL serves on the board of the local symphony. CLEL's initial take is that this bill is DOA, but we'll see.

The teachers' "work-to-rule" strike, which started in Berkeley and how now spread to the San Fernando Valley, may spread to the entire LA School District. The LA Daily News reports.
(Has anyone else heard of stike where the workers' tactic was to do only what the employer bargained for in the contract? If you're familiar at all with all of the extra work done by teachers, you realize that the sad truth is, if the teachers only fulfill their contracts, education will come to a screeching halt.

Economic downturn?

UCLA forecasters say the economy will cool as the housing boom flattens. The Sacramento Bee reports.

AB 879 Analysis

Here's the money section of the bill:

SEC. 2. Section 98.2 of the Labor Code is amended to read:

98.2. (a) Within Except as provided in subdivision (b), within 10 days after service of notice of an order, decision, or award the parties , any party may seek review by filing an appeal to the superior court, where the appeal shall be heard de novo. A copy of the appeal request shall be served upon the Labor Commissioner by the appellant. For purposes of computing the 10-day period after service, Section
1013 of the Code of Civil Procedure is applicable.

(b) Notwithstanding subdivision (a), a party who has failed to file an answer, to attend the administrative hearing, and to seek administrative relief pursuant to subdivision (f) of Section 98, shall not obtain a de novo hearing on appeal, but the superior court shall review the administrative order, decision, or award for an abuse of discretion only, unless the court finds that the appellant is entitled to relief in accordance with Sections 473 or 473.5 of theCode of Civil Procedure.

Apparently, the staff in Sacramento didn't have the safe iron-fisted drafting professor I did! Cross-referencing sections! Bad! Anyway, this, along, with AB 1311 may signal a shift in the mind of the Legislature towards treating the DLSE hearings as more like a specialized court. If this is so, will the evidence rules become more formalized?

I'm going to ask for comment from the bills' authors. I will post it here.

New rules on hiring undocumented workers?

The San Diego Union Tribune reports on a new proposal in Congress to punish employers who hire illegal immigrants. The penalties may be up to 5 years and $50,000.

California Assembly Bill Tracking

A summary of employment and (non-public) labor related bills in the legislature.

CLEL will be tracking the minimum wage bills (AB 48, SB 174, and SB 862) as well as AB 879, which requires employers' presence at DLSE hearings. CLEL will keep its eyes on everything else, but these have piqued our interest right now.

---

AB 48 - Shell to raise minimum wage.

AB 57 - (Postpoened hearing) - Modification to prevailing wage calculations.

AB 169 - (Postponed hearing) - Increase in penalties for gender-based unequal pay.

AB 222 - (In commitee) - Changes enforcement of prevailing wages from awarding agency to DLSE.

AB 364 - (In committee) - Modifies definition of "public works."

AB 391 (In committee) - Would allow unemployment to workers involved in a trade dispute.

AB 419 - (In committee) - Modification to young artist comepnsation scheme.

AB 474 - () - Would change calculation of prevailing wages.

AB 553 - () - Would require change in calculation of overtime in prevailing wages.

AB 510 - (In committee) - Would require the Labor Commissioner to establish a proof of coverage program to detect unlawfully insured employers.

AB 551 - (In committee) - Would change the status of employment agencies for domestic workers to non-employers in certain situations.

AB 640 - (In commitee) - Allows certain employees to be exempt from alternative workweek schedule.

AB 673 - (In committee) - Nonsubstantive changes to Labor Code.

AB 674 - (In committee) - Nonsubstantive changes to Labor Code.

AB 775 - () - Changes in penalties for rest poeriod violations in garment and agricultural workers.

AB 822 - Technical changs to acceptable forms of payments.

AB 875 - State oversight of alternative workweek elections.

*** AB 879 - Failure to appear at DLSE hearing would prevent employer from de novo appeal in superior court.

AB 904 - Allows an individual to exempt herself from alternative workweek under certain conditions.

AB 985 - Would forbid employers from discriminating against active duty called-up National Guard employees.

AB 1012 - Technical changes to overtime statute.

AB 1093 - Tehcnical changes to rules regarding payment of wages.

AB 1255 - Tehcnical changest to overtime statute.

AB 1311 - Would allow services of DLSE complaints in same manner as civil.

AB 1626 - Extends definition of employee to include former employees for purposes of requiring production of employee file. (Isn't this already the case?)

AB 1709 - "Plain language" workplace posters.

SB 101 - (Returned to comm. after second reading) - Changes to pay stub rules.

SB 174 - (In committee) - Shell bill to increase minimum wage.

SB 184 - (In committee) - Talent agency bonding requirements.

SB 285 - (In committee) - Changes requirements for payment upon termination.

SB 862 - (In commitee) - Immediate minimum wage bill.

SB 940 - (In commitee) - Changes the prevailing wage law re: residential projects.

Jon-Erik Storm - Professional Summary (Stunt 101)

P R O F E S S I O N A L__S U M M A R Y

JON-ERIK G. STORM

Jon-Erik G. Storm is an associate with Employer Advocates Group LC (“EAG”) in San Luis Obispo, where he practices employment litigation and counseling. He is the creator and editor of the legal web-log, “California Labor & Employment Law,” http://calemploymentlaw.blogspot.com, the only web-log devoted exclusively to all aspects of California Labor and Employment law.

Mr. Storm has a broad range of experience representing employers in civil, administrative, and appellate litigation, where he has won a number of dismissals and other victories for his clients. Mr. Storm also has wide-ranging experience providing consultation and advice to employers, assisting his clients with the ongoing development of their employee and human resource policies as well as assisting them with day-to-day matters. Mr. Storm represents the full spectrum of clients, from Fortune 500 corporations to individuals, and understands the differing needs of a diverse clientele.

In addition to his blog, Mr. Storm has also been published on varying subjects of employment law in different media. Mr. Storm's analysis of a recent assembly bill in the legislature was published in the May 2005 edition of the California Labor & Employment Law Review.

Prior to joining EAG, Mr. Storm was a judicial extern for both the Honorable Lloyd King and the Honorable Robert J. Faris, Chief Judge, at the United States Bankruptcy Court for the District of Hawaii. Mr. Storm received the Chinen Award for his exemplary service to Judge King and Judge Faris.

Mr. Storm is a 2003 graduate of the Illinois Institute of Technology’s Chicago-Kent College of Law. During law school, he received two CALI Excellence For The Future Awards for outstanding academic achievement, and was an Editor of Fiat Justitia, a journal of law and policy. Mr. Storm also founded the Chicago-Kent chapter of the American Constitution Society For Law and Policy.

Prior to law school, Mr. Storm attended Pitzer College (B.A., 1999), a member of the Claremont Colleges, and Claremont Graduate University (M.A., 2001), where he studied Philosophy.

Mr. Storm is a member of the American Bar Association, the San Luis Obispo County Bar Association, and the Labor & Employment Law Sections of the State Bar of California, the Los Angeles County Bar Association, and the Bar Association of San Francisco. Mr. Storm founded and chairs the Young Lawyers Section of the San Luis Obispo County Bar Association.

He is licensed to practice law before all of the courts of the State of California and the State of Minnesota. Mr. Storm is also admitted to the bar of the United States Courts of Appeal for the Federal Circuit and the Ninth Circuit.

Mr. Storm is currently serving on the board of directors of the San Luis Obispo Symphony.

If your business needs help sailing the perilous waters of California's employment laws, call an experienced navigator.

We're Back: Labor Conference in Las Vegas; NHL

I apologize to my few readers for my total lack of posting the last few weeks. I've still been checking for new developments in the Courts and Legislature, but honestly, due to an emergency at work, I haven't been as diligent as I could be.

The Bee has a good article on the labor meeting going on. I think there will be interesting developments.

As what I had expected to be the labor war of the decade (even if it's not exactly what most people think of when they think of unions), the NHL cancelled its season. At the 11th hour, the player's union split and one faction buckled to accept a salary cap. Even still, the two sides couldn't seal the breach. The NY Post's (ironically) Larry Brooks has been saying this was management's strategy all along: to force an impasse. The problem there is, except in Alberta, impasses don't work the way the do here--you can't have replacements. That would mean that Toronto and Montreal would not be in the league. That won't work--would it?

Prop 64 Retroactivity

Every trial court order holding that Proposition 64 applied retroactively is now invalid under California's prinicples of stare decisis, because the 1st Dist. Court of Appeal has issued an opinion holding that it does not.

This is consistent with a string of California Supreme Court cases going back years and including ones as recent as November. Not a surprise to me (as you may have read), but expect shock-and-awe "updates" from the panic marketing firms tomorrow.

For more, as always, check out The UCL Practitioner, who has been following the Prop. 64 issue like no one else.
wine

wine

wine

wine

California Quarter

There's not a lot of California Employment news today (or any, really) so I thought I'd post a link to an article about the new California quarter, reported by the Sacramento Bee.

For as much patriotism as I see these days, I hear just about as much anti-California sentiment within the state as I used to hear in other states against it. That's a shame. As employment lawyers of any stripe, we know things aren't perfect, but things are pretty good too.

Eureka!

Internet Security: Too much?

Apropos of my recent post on the many vulnerabilities of Microsoft Internet Explorer, I thought I would share another experience that has arisen in the context of this blog.

From time to time in connection with my law practice, I send out via email information to clients with an attachment. Sometimes there is little or no information in the actual text part of the email. Worse, sometimes there are multiple recipients.

Today, I noticed that three recipients rejected my email. Upon further investigation, I discovered that my law firm's IP address had been listed on a spammer service. (You can check yours here http://openrbl.org/ ) Ostensibly, this is because some mail with a virus or trojan was relayed at some point from this IP, or there was on open proxy.

This particular server runs a dedicated e-mail virus scanner that updates its indexes every 2 hours and heuristically scans for malicious code. It is behind a very expensive, very fancy Firebox firewall with literally five or six open ports. I have performed a security audit of this server on my own, and, I should add that it would be very difficult to penetrate it from outside.

I requested that my IP be removed, but I have no idea how effective this will be. This database claims that it lists 82,000+ IPs.

This is going too far.

I hate spam. I think it and spyware are combining to break the Internet. However, seriously impeding the flow of legitimate email is even more damaging. Spams can be deleted; block legitimate emails are unknown to the recipient!

Here are some suggestions in the meantime.

(1) No more e-mail lists. Use a blog or a hosted webpage and have people check the link.
(2) Use your ISP's SMTP relay exclusively (they might have ridiculous restrictions thought)
(3) Request a delivery receipt or a read receipt on all important messagegs.

It's one thing having to work to stop spam. It's another thing to have to monitor services tracking spammers to make sure your legit mail is working.

Assemblyman Disses New Regs

The Sacramento Bee reports.

State labor officials say they are simply providing choices for employees who want to work through meal breaks and leave early, rather than take a 30-minute breather in the middle of their shift.

"Frankly, I think this proposal is simply an attempt to usurp power from the Legislature and other public entities, and to consolidate it within the administration," said Koretz, D-West Hollywood.

And here's a puzzling comment. "Wednesday's hearing was the latest twist in what has become a recurrent theme at the Capitol: allegations that Gov. Arnold Schwarzenegger is taking a heavy-handed approach to labor unions." As far as I know, meal periods are not one of the things that can be bargained away in a CBA, so I don't see how that affects unions per se.

Also, "seven former employees of Thunder Valley Casino have filed a civil suit alleging sexual harassment, age and sex discrimination and wrongful termination." The Bee reports. (It's hard to beat the Bee for California issues.) I think this will be an interesting and important development, ie to see how these turn out.

NLRB finds LA area hotels' declaration of an impasse was illegal. The Los Angeles Times reports.

Views on Norcal Grocery Contract

The Contra Costa Times reports—the article frames the contract as less than perfect, but, of course, this one was reached without a nearly 5 month-long strike.

The Los Angeles Times notes that SBC is bringing back traditional pensions.

CLEL also notes that there haven't been any interesting employment law cases out of California courts for a while, but, if you're interested Kim at the UCL Practitioner is tracking the day-by-day evolution of Proposition 64.

Workers' Comp Rates Drop

Workers' Comp rates have dropped on average about 15% in the last six months. The Sacramento Bee reports.

A Note On Computer Security & Changes To This Site

I am considering moving this site to one of my personal servers. If so, that move would be next week. The main change would be the URL, but I will continue to use blogger/blogspot for the foreseeable future.

While I'm on that note, I'd like to say a thing or two about the Internet and security. Before I became a lawyer, or even went to law school, I worked for almost 10 years in the computer industry. I owned a domain name in 1992, and was building computer networks well before the Internet revolution.

Back in those days, viruses were much more malicious. They would wipe out your hard drive. But like biological viruses, the ones that kill off the host organism too quickly do not get a chance to propagate. But today, the literally scores of programs that run without your knowledge on your computer diminish the power of your computer and suck internet bandwidth, thereby raising the cost. Yesterday's Internet Explorer vulnerbaility was the last straw for me, and I switched to Mozilla.

I was hopeful that anti-spam legislation would be almost as effective as the do not call list was for telephones; it has not been. Therefore, I'm even more doubtful that any legislative action against "spyware" will solve the problem either.

It's up to the software makers. They'd better act, because as I see it, the Internet is broken.

State Farm Settles

The LA Times reports.

State Farm Insurance Cos. agreed to pay $135 million to settle a lawsuit alleging that it failed to pay overtime to 2,600 claims adjusters in California.

SF hotel union negotiations hit another snag. The SF Chronicle reports.

And the Norcal grocery workers . . . not all worked out yet. The Chronicle reports.

AB 48

CLEL announces its first bill track of the 2005-06 Legislature: AB 48. As introduced, the bill is a shell. The Sacramento Bee has a report. According to this report, this measure would be indexed to inflation.

Happy New Year

Unless the Legislature repeals the Labor Code in an emergency session, today will be the last day of posting for 2004. I was thinking about doing a 2004 retrospective, or a 2005 "what's new," but I'm sure that the shock and awe literature from BigLaw has that covered.

Anyway, CLEL hopes your 2004 was great and your 2005 is better!

Emergency Regs Withdrawn in Favor of Permanent Ones

Or "DLSE Discovers Administrative Procedures Act" (;

No emergency regs, folks. They will be proposing permanent ones. Take a look.

TITLE 8. INDUSTRIAL RELATIONS
Division 1. Department of Industrial Relations
Chapter 6. Division of Labor Standards Enforcement
Subchapter 11. Meal and Rest Periods
§13700. Meal and Rest Periods
(a) Definition. As used in this section, “work period” means that period of time during which an employee is subject to the control of the employer. A work period begins at the time an employee begins work and ends at the time the employee either takes a meal period or stops work for the day. A new work period begins each time an employee resumes work after taking a meal period.
(b) Requirement to Provide Meal Periods
(1) An employer shall be deemed to have provided a meal period to an employee in accordance with Labor Code Section 512 if the employer:
a. Makes the meal period available to the employee and affords the opportunity to take it; andb. Posts the applicable order of the Industrial Welfare Commission; andc. Maintains accurate time records for covered employees, as required by the posted order;
(2) As a further precaution beyond the criteria required under (b)(1), an employer may inform an employee in writing of the circumstances under which he or she is entitled to a meal period in a way that permits the employee to acknowledge in writing thathe or she understands those rights.
(c) Beginning of a Meal Period
(1) Employment of less than 6 hours per day an employer may not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes. If the total work hours per day of the employee are no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.
(2) Employment of more than 6 hours, but less than ten hours, per day.Unless provided otherwise by an applicable order of the Industrial Welfare Commission, a meal period as required by Labor Code Section 512(a) may begin before the end of the sixth hour of the work period.a. An employer may not require an employee to begin a meal period after the end of the sixth hour of work, except as provided in Labor Code sections 512 (b) or (c).b. If an employee requests a meal period to begin after the end of the sixth hour of work, an employer is not in violation of Labor Code 512 so long as the employee was provided the availability and opportunity to take a meal period before the end of the sixth hour of work.
(3) Employment more than ten hours but less than twelve hours per day.An employer may not employ an employee for more than 10 hours per day without providing a second meal period of not less than 30minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.
(4) Examples
Example 1: A non-exempt employee begins work at 8:00 a.m. andworks without a meal period until 1:00 p.m. The employer is required to provide a meal period to the employee at this point ,as the employee will work more than 5 hours. However, if the employee’s work will end no later than 2:00 p.m., the meal period may be waived by mutual consent of the employer and the employee.Example 2: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:10 p.m. The employee has worked over 5 hours and is entitled to a meal period. The employee has not requested the meal period to begin after the end of the sixth hour of work. Without the employee’s request, the employer may not require the meal period to begin after 2 p.m. as this would beafter the end of the sixth hour.Example 3: A non-exempt employee begins work at 8:00 a.m. and is provided a meal period, which begins at 10:30 a.m. The beginning of the meal period ends the initial work period of that employee’s work. Upon returning to work at 11:00 a.m., the employee commences a new work period. The employee then works until 4:00 p.m. If the employee continues work beyond this point, the employer is required to provide another meal period to the employee, as the work period will exceed five hours. However, if the employee’s work will end by 5:00 p.m., the second meal period may be waived by mutual consent of the employer and the employee.Example 4: A non-exempt employee begins work at 8:00 a.m. and works without a meal period until 1:00 p.m. After taking a half-hour meal period, the employee returns to work at 1:30 p.m. and works until 6:30 p.m. If the employee works beyond this time, the employer is required to provide a second meal period to the employee. However, because the total hours worked by the employee in the day exceeds 10 hours, but not more than twelve, the second meal period may be waived by mutual consent of the employer and the employee as the first meal period was not waived.
(d) Penalty for Failure to Provide Meal or Rest Period. Any amount paid or owed by an employer to an employee under Labor Code section 226.7, subdivision (b), for failing to provide the employee a meal period or rest period in accordance with anapplicable order of the Industrial Welfare Commission is a penalty and not a wage.(e) Severability. If the application of any provision of this regulation, or any section, subsection, subdivision, sentence, clause, phrase, word or portion thereof should be held invalid or unconstitutional or unauthorized or prohibited by statute, the remaining provisions thereof shall not be affected thereby, but shall continue to be given full force and effect as if the part so held invalid or unconstitutional had not been included herein.Authority: Sections 53, 54, 55, 59, 95, 98, 98.8, 1193.5, and 1198.4, Labor Code.Reference: Sections 226.7 and 512, Labor Code

Question Begging on Prop 64

No matter how much $500 per hour verbiage I read, I still can't see how Prop. 64 is retroactive under the law. Especially the argument about it "not affecting substantive rights" is thoroughly question begging.* That means, in logical terms that you assume the truth of the conclusion to prove the question.

If you agree that the non-harmed Plaintiff did not have a substantive right under the UCL, then clearly, no rights were affected. But to believe that, you have to accept that contention. I disagree, and I don't think it's much of a matter of opinion.

Before Prop. 64 I personally possessed the right to enforce laws under the UCL. Now I do not. End of question.

If you live in a defense-bar echo chamber (which I try to avoid being in) then, sure, those people never had real "rights" anyway, so of course nothing is affected. I could speculate that this stems largely from these BigLaw power lawyers farming this research out to junior associates who have Article III standing fresh on the brain and can't grasp the fact that it doesn't apply in California.

But you have to beg the question of there being no right to make this argument work. That's not to say that plenty of results oriented judges out there won't disagree, but this is more a matter of logic than of fact. It's a shitty argument and they should be embarrassed making it.

I'll continue to review the other arguments. E-mail me if you think you can win me over.

(Editorial Note: Once again, I am not making any comment on the propriety of the UCL or Prop. 64)

P.S. Snaps and props to The UCL Practitioner for being more than on top of this from day one. What an excellent resource!

* Smile. This may be the only time this year you read this term in its correct definition and not as sloppy shorthand for "poses the question" or "leads one to ask."

Guv Tries to Terminate Lunch Breaks

Or at least flex their scheduling. The Contra Costa Times reports.

The regulations would give employees leeway to schedule a lunch during the sixth
hour of work. Companies could help meet the lunch requirement if "the employer
informs an employee of the circumstances under which the employee is entitled to
a meal period and the employee acknowledges in writing that he or she
understands those rights." * * *The new rules would also reduce the time period
in which a worker could file a legal complaint from three years to one.

The nurse labor issue in Fresno continues, the Fresno Bee reports.

Lujan v. Minagar etc.

Lujan v. Minagar - Firing someone because you think they're about to report you violates Labor Code Sec. 6310, which prohibits termination of employee in retaliation for reporting violations of Occupational Safety and Health Act.

Lonicki v. Sutter Health Central - Employee who was performing nearly identical duties for two employers but claimed to be unable to continue doing so due to medical condition could not take California Family Rights Act leave from one position and not the other. Where sole documentation of purported medical condition was note from family nurse practitioner saying employee would be out of work until a specified date for "medical reasons," employee did not provide satisfactory evidence of "qualifying medical condition," and employer was not required to invoke "three-opinion" procedure as a prerequisite to litigating CalFRA claim.

TA strike at Cal State

Academic student employees at the 23 California State University campuses will
stage a one-day strike today over unresolved labor issues.

The Chronicle reports. The NLRB's recent ruling in NYU. does not apply to state employees.

New Legislative Session

Some early bills of note:

AB 57: would provide employers some flexibility about when they pay elements of prevailing wages.

AB 48: another legislative minimum wage hike. It's called a bill, but looks more like a resolution to me. Does anyone know the difference?

Job Numbers

Non-farm payrolls were up only 112,000 in November, after a (revised) 303,000 new jobs were added in October. Unemployment sunk to 5.4%, while the average work week was down 0.1 hours and the average hourly earnings were up 0.1%.

The market probably won't like this. They were thinking there would be about 200,000 and were about ready to feel relief on lowering oil prices. Probably more of an effect on bonds, which is freaking out right now.

I'm still trying to get ahold of good statistics, but for employers I think this means you will see more post-term charges and complaints. . .

Prop 72 Wins?

[UPDATE: Via California Insider: Glitch fixed; alarm over. Prop. 72 still loses.]

According to the LA Times, Prop. 72 may have made a late comeback. If you've already flushed that one, it's the one that requires employers with more than 50 employees to provide health care benefits.

Though this may be due to an error, it isn't clear. We'll know more soon.

Thoughts on Today's Prop 64 Conference

[UPDATE: Apparently, a Court of Appeal has allowed a UCL action with no injured-in-fact Plaintiff to proceed. Shows what I know.]

[UPDATE: Apparently at least one demurrer has been granted on the basis that Prop. 64 applies retroactively by a Judge in Los Angeles. Shows what I know.]

I sat in on today's teleconference given by the anti-trust section of the state bar on the changes to the UCL brought on by prop 64. I have to say that I was pretty unimpressed with the arguments presented by the defense bar (of which I am a member). I don't blame them for making them--it's their job--but I just don't think they're convincing at all. My apologies to those who disagree, but it seems to me that this only became a research project since Election Day, and there hasn't been much notice of the increasingly stronger anti-retroactivity language coming out of California's courts in the past years.

I also think the argument flowing from the procedural/substantive distinction is, frankly, farcical. I think there is merit to the contention that the portion that requires class certification might be considered purely procedural, but the part that withholds standing from others destroys their former substantive right to enforce laws against unfair competition. In other words, from the point of view of a citizen or a public interest group that didn't lose actual money or property, they now do not have a right they previously had. If that's not substantive, I don't know what is. I think we can also dismiss summarily the arguments that because the right is statutory that it can be retroactively changed automatically (clearly refuted by the recent McClung case, ruling on the FEHA, which involves statutory rights) or that it "merely" governs how these actions are prosecuted, and, most absurbly, distorting the language of the voter information pamphlets—of all things—to coax an inference of retroactivity.

I will at least grant that the style, if not the substance, of the defense bar presenters was excellent. It's just that I can only picutre in my mind what an appellate panel would do to it.

There was high level political genius behind Proposition 64. First, those who explained that the funding provision of the penalty amendments was done to give the appearance that this wouldn't hurt consumer protection because it would provide funding for the public agencies responsbile for it to do so plainly ignored the commentary given by the District Attorney who was present. This was meant to give that appearance, but not only to the people voting on it, but also to the Legislators controlling the purse strings later. They can rely on this, correctly or not, to fund this enforcement and slash its funding from the general fund. Political tactics of this level of genuis only come from very well put-together organizations. The Prop 64 opponents were not playing on this level, and they weren't playing on that level when they failed to reach a legislative compromise last spring. Welcome to the NFL.

So far, the only court to rule on this has agreed with me. In my practice, every single UCL case I defend against (or have brough as a plaintiff) includes a plaintiff who was injured in fact, and the majority now include class allegations. I understand if you're in the middle of defending a "public interest" case that you hope this will save you, but I doubt it will. You can run it up to the Appeals systems, but something tells me most Courts are just going to allow amendments to the pleadings to include class allegations and a correctly injured plaintiff (if there is one), and the courts will probably stretch the "money and property" provision as far as they can. There will probably be a small number of outright dismissals—and it seems to me those won't be the cases of the family business, but environmental ones.

In sum, I know the issue of retroactivity is hot right now, but I don't think it's really all that important except in cases of vague injury in fact, which, to me, is where the action will be in the courts.

[Editorial Note: I normally refrain from expressing opinions, as is my policy. I am not expressing my opinion on the propriety of Proposition 64 or the UCL itself; just on the arguments put forth for and against the retroactive application of Prop 64, which is consistent with my meta-commentary on the reporting and editorializing done by others, without commenting on the underlying issue. Please do not take offense.]

Writ.

CLEL will be working on an extraordinary writ filing this week, and, therefore will not be covering the news. If I see any interesting cases, I'll still post them.

P.S. Thanks to The UCL Practitioner for the reference. I can't imagine that the Defense bar will be able to get around McClung and the long-term march of California's courts against retroactivity. I wonder what the CLE program tomorrow will say about it? (CLEL will try and squeeze that one in.)

Oh, NOW you end it (=

So, the lockout ends in San Francisco. Thanks guys. No way you could have gotten that done in time for my conference? (= Those scab maids had no idea how to do a room. Seriously. Apparently, the honchos at the management companies agreed. [No, of course I don't seriosly expect any of this done on my timetable.]

Workers' Comp judge files a workers' comp case after death threat. Cue Alanis. It's ironic. The Sacramento Bee reports.

California's 150 workers' compensation judges are six times more likely to file on-the-job injury cases than their judicial counterparts in state government, a Bee investigation has found.

Six times more? Attention appeals court judges: file claims for tongue whiplash after intense colloquy. Is that amount attributable to just knowing their rights alone? Do Superior Court judges not know their rights?

NELI Update

I stepped out for a minute to check on things while the discussion veered into something that I simply do not do in my practice, namely Sarbanes-Oxley Compliance.

So far the speakers have been interesting and professional. The hotel strike outside provides an interesting backdrop for the discussion, especially this mornings Labor Lab update. Most of what we're hearing here is not that useful for most of us, because we practice in California and the FEHA is uber alles here, but definately built on the wider backbone of this kind of Federal law, so your have to have it.

No significant news or cases to report on today.

Case Watch.

CLEL will be watching for results in these cases:

• Dore v. Arnold Worldwide, Inc., pending before the California Supreme Court. Issue: at-will employment.


• Lyle v. Warner Bros. Television Prods., pending before the California Supreme Court. Issue: FEHA/sexual harassment.
  
• Powers v. The Rug Barn, pending before the California Supreme Court. Issue: tortious interference with at-will employees.


• Reynolds v. Bement, pending before the California Supreme Court. Issue: wage/hour.


• Smith v. Jackson, pending before the U.S. Supreme Court. Issue: ADEA
  

Fresno Nurses Strike?

The Fresno Bee reports:

The California Nurses Association, which represents about 300 nurses at University Medical Center, delivered the 10-day strike notice to hospital officials late Friday. The advance notification, required by law, was delivered not long after contract negotiations between the two sides concluded earlier in the day. The two sides have been trying to come to a contract agreement for more than a year.

In the California Journal, this article discusses the trends in union membership and other changes over the years.

NELI

CLEL will be attending NELI this Thursday and Friday in San Francisco. Hope to see you there.

News

More on State-Board-Members-Gate from the Sac Bee.

News.

The Chronicle has this personal story piece on the hotel lockout.

Class-action age discrimination suit against Vons coming soon? The Fresno Bee reports.

Unemployment Insurance Appeals Board, Workers Compensation Appeals Board, Agricultural Labor Relationsh Board, and Cal-OSHA official told "they'll be back" from 9-5. The LA Times reports.

A group of injured workers has filed a legal challenge to the recent workers' compenstaion reform. The LA Times reports.

Currently, an injured worker is allowed to choose any doctor after the first month of treatment is completed. After Jan. 1, a worker will have to pick from a pool of doctors who belong to tightly controlled physician networks organized by companies or insurers.The suit maintains that the new rule should be applied only to people hurt on the job after Jan. 1. The suit filed in Sacramento by the California Applicants' Attorneys Assn. names as defendants the state Division of Workers' Compensation and Director Andrea Hoch.

Westside Concrete Co., Inc. v. DIR, DLSE, et al.

2d App. Dist. No. B167037

This case stops short of ruling on and giving specific standards for the applicability of the DLSE Opninion Letters, but it strongly suggests that any of them that purport to show a general rule that isn't the only possible interpretation (a la Tidewater), are probably in violation of the APA.

This is probably enough for parties, defendants especially, to start filing motions about, but it's far from conclusive.

The DLSE's website itself notes that the letters are currently under review for APA compliance.

I can see why there is controversy, but it sure helps to have an explanation of how the agency is thinking on any given issue. If they're wrong, you can always fight it, but at least you know where they're coming from.

I'm afraid rather than helping either side, this kind of ruling will simply force the DLSE to go underground with their procedures.

Governor Names Jack Henning to head EDD

The LA Times reports.

After upsetting labor unions by favoring corporate interests this year, Gov. Arnold Schwarzenegger on Tuesday appointed a Democrat and longtime labor leader to manage the sprawling bureaucracy of the Employment Development Department.

The AFL-CIO confronts the future. The LA Times reports.

Lines have already been drawn, with fast-growing, aggressive unions such as the 1.7-million-member Service Employees International Union demanding that the labor movement consolidate much as corporate America has. The presidents of five unions have established the New Unity Partnership, which advocates a massive reduction in the number of unions — from 63 to 15 — with those remaining to be divided clearly along sectoral lines, such as hospitality and construction.

McClung v. Employment Development Department

Fair Employment and Housing Act amendment imposing personal liability on nonsupervisory employees for harassment of coworkers, following Supreme Court ruling that there was no such liability under existing law, changed rather than clarified the law notwithstanding legislative declaration to the contrary.

The Supreme Court has some very harsh words for legislative overreaching in terms of retroactivity. Let's see if this affects the Salazar II / Carter dispute.

Supreme Court No. S121568.

Proposition 64 In Effect

Proposition 64, by law is now in effect, according to Cal. Const. Art. II Sec. 10(a). The UCL Practitioner, citing a defense lawyer's article, wonders whether it is retroactive. It is not. No section of Proposition 64 explicitly claims retroactivity and the California Supreme Court has just raised the bar on retroactivity.

See the following case summary if you doubt that.

Hiatus

I apologize for my unanounced hiatus. It was a busy week plus, of course, there was the election. I will post a first look at Proposition 64 soon.

Williams v. FreedomCard, Inc.

Noted briefly: failure to post surety bond or delcataion of indigency constitutes a waiver of the right to appeal labor commissioner's award of wages. Williams v. FreedomCard, Inc. 2d App. Dist No. B162880.

Newsom Joins The Fray

Wow.

San Francisco Mayor Gavin Newsom threatened Monday to join hotel workers on their picket lines today unless hotel owners end a four-week lockout and allow employees to return to their jobs for a 90-day cooling-off period.

The San Francisco Chronicle reports.

Quick Fact: Elections & Employee Time to Vote

California Election Code sections 14000 and 14001 require that employees be given time off to vote if there is not sufficient time outside working hours. If so, they should be paid for the time, up to 2 hours.

And guess what? You have to put up a poster—surprise!—10 days before (That means tomorrow!) to let employees know this.

The polls are open from 7am - 8pm.

* But here's something that might be new: delays at the polls. There have been problems with these in the voting going on already in Florida and elsewhere. If that happens here, it is possible that employees will have to come and go more than once. Hopefully we'll avoid most of the major problems here in California.

Smith v. Superior Court (L'Oreal USA, Inc.)

This is a good one. It's a clear rule that clarifies something that isn't facially obvious in the statute.

Individual hired for specific short term and for flat fee is not "discharged" within the meaning of Labor Code Sec. 201 when the specific term expires and is thus not entitled to be paid immediately" upon completion of the term nor to receive a "waiting time penalty" pursuant to Labor Code Sec. 203.

Duly noted. Petition DENIED. 2nd Dist. No. B176918.

Weintraub: End Employer-Based Health Care

Does Daniel Weintraub read CLEL? His editorial today says ...

The biggest problem with our current system is that it injects a third party - the employer or its representative - between patients and doctors and between consumers and their insurance company.

He claims that employer-based health care started as a way around wage-controls during World War II. [Is that really all there was to it?-CLEL]

Weintraub is writing this in the context of urging readers to vote no on Proposition 72, which would enmesh the practice of employer-based health care.

What's his suggested fix?

We can do this by taking a page from a policy that has proven successful in Switzerland: require every individual to have health insurance that covers at least catastrophic, or unpredictable, costs * * *People who are too poor to afford coverage would continue to get their care through government-subsidized or charity-based health clinics and hospitals. The working poor could get vouchers or refundable tax credits to help them transition to taking charge of their own health insurance purchases.

You've got a lot more selling to do, Dan. How would costs be controlled by consumers when they have to have the insurance? Isn't that a seller's market? How would you foster competition--FTC action? CLEL agrees that employer-based healthcare should go away; it's especially onerous on small employers; but for the economy needs healthy workers. Wouldn't these vouchers end up having a secondary market? How do you have enough competition in the health care market with each provider having a big enough pool? Isn't it a natural monopoly or oligarchy? We need more answers.

Happy Friday

The LA Times reports that ...

The national flu vaccine shortage has companies bracing for a surge in costly
sick days and lost productivity.

Lovely.

"Employment Laws Explore New Territory"

In this month's California Bar Journal, there is a pretty decent sized piece on employment law frontiers in California. (It does not appear to be online, at least for free).

I'm a little confused by this piece, because it talks about SB 796 and not the recent bill that just took a lot of the punch out of it. What's up with that? Also, is she implying that a bill can be retroactive without any indication, even implicit, that it is?

While there is no indication that this law is deemed retroactive by the legislature, it will likely be a familiar sight in all new employee claims against violating [sic] employers.

Why even mention retroactivity then? I'm not sure what the point of that is. She feigns an attempt at balance at the end with the very trendy "on the other hand" job. With those caveats, it's a good road-map to some of the new employment laws out there.

[CLEL notices that it is usually strikingly easy to tell when a piece is written by an employer side lawyer or an employee side lawyer, including the use of agit-prop. Is this the case in all branches of law? CLEL was a former bankruptcy jock-in-training, and doesn't remember the creditor/debtor divide being so obvious in prose like this.]

Slow News Week Picks Up!

Finally! Some interesting news... (in my narrow band here, anyway--the world is full of interesting news right now)

The Fresno Bee reports that the new workers' comp law is putting the squeeze on chiropractors:

Statewide, chiropractors say new limits on visits and much-stricter guidelines for treatment have resulted in as much as a 70% cut in chiropractic treatment.

A class action suit against Dennys restaurants can proceed, the Supreme Court ruled, according to California law, where vacation is earned wage. The Chronicle reports.

Denny's allows employees to start earning vacation time from their first day of work, but doesn't pay them for accrued time if they leave in less than a year for an hourly employee, or less than six months for a salaried employee. Gard said the policy violates California law, which considers an employer's vacation benefits to be the equivalent of wages that can't be forfeited.

Yikes! CLEL would never have counseled them to do that. Dennys argued that their vacation plan was covered by ERISA.

Jesse Jackson spoke to striking hotel workers in San Francisco yesterday, the Chronicle reports. Mayor Newsom asked for a cooling off period, where workers would return to work during negotiations. A federal mediator will be in later this week. The strike is about a rise in health care premiums to be paid by the workers.

Noted Briefly...

I've decided that I will note cases in passing even if I'm not going to summarize them. This still doesn't mean that I will list here every single case that comes down in this and all ancillary areas...

Carter v. CB Richard Ellis, Inc. - 4th Dist.

N.B. New E-Mail Address

Why pay?

Train Thyself! & Hotel Strike at a Stalemate

The Governor did not veto a bill (AB 1825) requiring sexual harassment training for supervisors in companies with more than 50 employees. It does not go into effect until 2006. [CLEL notes that anyone expecting a veto on this one only need look back to the recall campaign - does he really want to revive the groping meme? Plus, how many companies with 50 or more employees aren't already doing this? Apparently not enough for Gov. Schwarzenegger to think this is a "job killer."]

Back to the front ... in San Francisco, the hotel strike continues, as the SF Chronicle reports. You'll never guess what the sticking point is. . .

The hotels have asked for a five-year contract that would sharply increase
workers' health insurance premiums. The union wants a two-year contract that would expire in 2006, which would synchronize its next round of negotiations with talks in other cities.

Health insurance? I can't imagine that. CLEL doesn't have a solution for this, but recognizes one is needed!

SF Hotel Lockout Imminent

The SF Chronicle reports.

California Fair Employment & Housing Comm. v. Gemini Aluminum Corp. 2d A.D. B165771

When the employer failed to reasonably accomodate its Jehova's Witness employee's wish to go to a religious convention that was held to be a form of study or worship, without reason, the Court held that the employer was in violation of the FEHA.

Judgment REVERSED.

Vetonator Part Zwei

Gov. Schwarzenegger vetoed two "off-shoring" bills, AB 1829 (preventing any state work from being moved overseas), SB 888 (no moving homeland security work offshore). The Sacramento Bee reports. The Governor, however, shored-up the Foie-Gras technology industry here in California.

And just in case you need a laugh because it's not Friday yet... read this. The Money Quote? "The third time it came in, I lassoed it and dragged it outside. . ."

Earthquake Blogging

Here on the Central Coast, things are so good that our karmatic balance has to be restored by something. Nature, apparently, has chosen serial 6.0 earthquakes. As far as I know, no buildings have collapsed this time.

On to the news. . .

In the hotel labor dispute, the owners have accused the union of not bargaining in good faith. The LA Times reports.

Labor Costs Rising

The WSJ (Sub. req'd) has this piece on rising labor costs. Since in real terms, wages have gone up infinitesimally in the last 30 years, it must be the overhead. The piece says its lower productivity and health care costs.

Welfare Capitalism

Today's Slate has a piece on the demise of what the author calls welfare capitalism. Free marketeers have thus far opposed things like socialized welfare--but would it be easier for most employers to not have to deal with this and pensions, etc.?

So, imagine you didn't have to deal with Workers' Compensation because, well, they're covered. Hmmm...

It's not exactly the GI bill but ...

The Bush administration proposed new regulations Monday aimed at clarifying employment protections for veterans and reservists returning from active duty. The Labor Department initiative was announced as Democrat John Kerry stepped up his criticism of President Bush on Iraq.

The NY Times reports.

[CLEL has a policy of withholding opinions on things like this, but CLEL will bend this rule to say that CLEL hopes that we don't hear shrieks of unfairness about this one from certain shrill and alarmist practitioners out there.]

Upcoming BASF Meeting on 96(k)

The Bar Assn. of San Francisco is holding an event next week that I'd very much like to attend. Unfortunately, I probably won't be able to make it. If anyone reading this is going and would like to give me notes, please let me know.

Labor Code Section 96(K): A Dramatic Modification of Employment at Will, a New
License for Lifestyle Liberty, or Just Another Procedure to Assert Already
Established Rights?Labor and Employment Section: Program

The Veto-nator.

As predicted here at CLEL, Gov. Schwarzenegger vetoed the minimum wage hike bill. The Bee reports. [CLEL will go out on a limb an predict the Legislature will attempt--and fail--to override this veto.]

Also vetoed were SB 1056 requiring "economic impact reports" before big box stores could come in.

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.