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DFEH To Promulgate Sexual Harassment Training Regs

Jackson Lewis has the scoop, here.

AB 1825, the law that requires employers with more than 50 employees to train their managers on sexual harassment, is now in effect. But with the little guidance it gets, I’ve had a lot of questions. Who can do the training? Can you do the training? What does it have to cover? Who is a supervisor according to this law? Etc. etc.

Hopefully these regulations will provide some guidance. According to the article linked above, California licensed attorneys can do the training (all-righty then). The trainer should be able to cover:

(A) what is unlawful harassment;
(B) how to intervene when harassing behavior occurs in the workplace;
(C) how to report harassment complaints;
(D) how to respond to a harassment complaint;
(E) how to investigate harassment complaints and an employer's obligation to do so;
(F) the illegality of retaliation for filing a harassment complaint and how to prevent retaliation from occurring when an employee has filed a harassment complaint; and
(G) the employer's anti-harassment policy.

Is California "anti-business"?

You've heard a lot about California being "anti-business" and its laws and policies being hostile to employers. It's an article of faith among some of my colleagues. Apparently, ho

• California does in fact lose business and jobs because of relocation, but the effect on employment is negligible. In any year from 1993 to 2002, the net job loss from business relocation was never higher than one-tenth of 1 percent of the total number of jobs. . .
  
  
• Employment change is primarily driven not by interstate relocation but by the expansion and contraction of existing businesses and by the births of new businesses and the deaths of existing ones. . .
  
  
• When they do move, businesses are much more likely to move locally than across state boundaires. . .

Also, not this interesting factoid: "Those who have argued that California's business climate has pushed businesses out of California have rarely relied in empirical evidence of relocation behavior, but rather or surveys that elicited subjective assessments from employers."

In other words, someone is creating a positive-feedback loop that is scaring the crap out of medium and small businesses in the state, driven by a justifiable frustration at complicated regulation. Nonetheless, fear-mongering at the state of things in the world's fifth largest economy is not productive. One wonders whether the rust-belt states are claiming the same problems as they lose population in droves to the sun-belt. California is a great place to do business, especially relative to where else you can go, even if sub-optimal in all aspects.

You can read the entire report here in the California Economic Policy Journal.

More on Wal-Mart

More on Wal-Mart.

Nathan Newman bombards Kevin Drum and Ezra Klein for widening the context of the Wal-Mart dispute.

Employers shouldn't be excused for completely rotten, immoral activities just because a better policy would make compliance with the law easier. This is bleeding heart liberalism applied to the largest corporation on earth, as if Ezra is excusing some kid caught purse snatching with the excuse that society had failed to provide better economic alternatives to a life of crime, so it's really society's fault that the victims lost their property.

I've talked to people about this, and it's not clear what they are (were going to be?) doing is discriminatory. Even if it discourages "unhealthy" applicants (not a protected class as long as they aren't perceived as such), as long as they aren't trying to keep disabled people out, it's not illegal. Under disparate impact cases, there is a so-called "interest" defense (why you don't see WASPs bring class actions against strawberry farms). If it's just that people don't want that kind of job, it's basically ok. It depends on the intent.

And Newman may be right that allowing this potential violation in order to cure a health care issue isn't the law, but at least they aren't simply doing it to pad their pockets. Pure motive or not, they are trying to address an important social issue. That should be deemed a step in the right direction for a Wal-Mart antagonista.

Gattuso v. Harte-Hanks Shoppers, Inc.

The Second District has held that Labor Code section 2802 does not preclude employers from paying increased salaries or commissions in lieu of reimbursement for actual expenses.

The Wal-Mart Memo: Does It Break The Law?

Wal-Mart has managed to create another PR nightmare for itself. This week, an internal memo (p.14) suggesting that Wal-Mart discourage unhealthy people from applying for jobs has raised hackles from the usual anti-Wal-Mart suspects. But it might also raise a lawsuit.

If you're reading this blawg, you're probably aware that the ADA and (in California) the FEHA prevent discriminatory hiring practices against those with disabilities.

Nothing in the memo suggests that this is anything but a proposal, and it probably wasn't vetted by the company's lawyers. Even still, nothing in it is per se discriminatory. Instead of trying to exclude the disabled, instead it's trying to attract health-conscious workers.

I'm not an ADA jock. I don't know enough to say for certain whether or not this all on its own violates the ADA, but my sense is that it doesn't, and, if it does, it's bad policy. Given the bovine nature of America, the country's largest employer should do something to encourage more physical activity!

The SEIU's spokesperson told the WSJ (sub. req'd) that

"When you add physical requirements to jobs that don't need them, you begin to weed out a whole pool of people such as the elderly, the obese, people with pre-existing medical conditions," says Andrew Stern, president of the Service Employees International Union, which represents 1.8 million workers, including health-care workers, janitors and security guards. "I think this memo steps over the line of what's legal," he adds.

There is an argument that they might be unnecessarily adding tasks to job descriptions. Here's where I'd ask for some reader feedback. To what extend does the FEHA or ADA mandate than an employer create job descriptions? Can the ADA stop Wal-Mart from making cashiers collect carts? If so, what else can't they do? Do employer have to create job descriptions that are always carefully calibrated according to potential disability impact?

2005 Legislative Summary [Draft]

Only a few employment-related bills made it through the legislative process this year. This is mostly a reflection of the split government. Remember, to an outside observer, California politics is polarized on a coprorate/union axis with other interest groups not holding nearly as much sway.

AB 1093 allows for final "termination pay" to be made by direct deposit to a bank with a location in California, even if not headquartered here. It also clarifies some aspects of a computer programmer's exemption from overtime rules. Nothing too big here.

AB 1311 harmonizes service rules between DLSE hearings and civil suits. No biggie either.

SB 101 is discussed below--only put the last 4 digits of a social on a pay stub!

Sb 184 ups a talent agencies bond requirement to $50,000. Hmph.

The gridlock in Sacramento has succeeded in doing one thing: limiting the amount of topics for people like me to speak about to potential clients in the spring. There really isn't that much change in the law this year. I think that's a good thing--so we can let all of the rapid change in the past few years sink in.

2005 -- that's a wrap. I'll keep my ears open for a veto overried on minimum wages, but otherwise, 2005 legislative updates are done.

UPDATE: Littler's summary is here.

Legislative Update

AB 48 was VETOED.
AB 57 was VETOED.
AB 169 was VETOED.
AB 222 did not pass in committee.
AB 364 did not pass in committee.
AB 391 was VETOED.
AB 419 died in committee.
AB 474 did not pass in committee.
AB 510 did not pass in committee.
AB 553 did not pass in committee.
AB 640 did not pass in committee.
AB 673 died in committee.
AB 674 died in committee.
AB 775 died in Senate committee.
AB 822 died in committee.
AB 875 was VETOED.
AB 879 was VETOED.
AB 904 did not pass in committee.
AB 985 was VETOED.
AB 1012 died in committee.
AB 1093 passed and is law.
AB 1255 died in the hopper.
AB 1311 passed and is law.
AB 1626 has been transformed to a non-employment issue.
AB 1709 did not pass in committee.
SB 101 passed and is law.
SB 174 was VETOED.
SB 184 passed and is law.
SB 285 died in committee.
SB 862 died in commitee.
SB 940 was VETOED.

That's a wrap for 2005. Arnold terminated all but a few bills, which I will review above.

Some Initial Thoughts On The Jury System

My experience as a juror was traumatic. Not because the seats in the jury box must have been designed by a cabal of chiropractors to maximize business; not because it took two weeks of my life; and not because most of the subject matter was drop-dead boring.

It was traumatic because during deliberations, roughly half of my fellow jurors simply ignored the evidence and the instructions. And it's not because I disagreed with the result that we arrived at. I simply disagreed with the disdainful, prejudicial manner that some of the other jurors had.

I pray that I never have my fate or the fate of someone I care about decided by such a group. I don't have any proof, for example, that some of those who refused to deliberate in good faith were simply trying to get home after two long weeks, but I got it straight from the horse's mouth from some of them that they simply "didn't like" the plaintiff or thought that because he didn't do absolutely everything perfectly that he deserved no reward--nothing that had anything to do with the law or the facts.

The case deserved a defense verdict, in my opinion, but not because the of the smear on the plaintiff by the defense, not because there are "frivolous" lawsuits out there and we should punish the system (there was enough juice in this one on day one to leave any notion of frivolous far behind), or anything else that was irrelevant to the events in question.

As a defense attorney, I have to feel emboldened. As a citizen, I have to be scared.

A lawyer as a juror.

I have been on a jury for almost two weeks now. It's been an educational process that I will have a lot to say about once I'm relieved of my duty to hush up. I apologize for the lack of posts. As you can imagine, I've been occupied.

Editorial Policy on Comments

Comment spam has become overwhelming. I hate to do this, but I feel that I have to require that only those who create a blogger account can now post comments. If you have something important to say and don't feel like creating a blogger account, feel free to e-mail me.

My excuse this week.

So, first I had a stomach ailment, then a nasssty headcold. Now, tomorrow, I have jury duty. What a week.

SB 101 Analysis

Purpose:

SB 101 provides clean-up language to SB 1618, which was
passed last year. SB 1618 was enacted to help reduce the
likelihood of identity theft by requiring that by January
1, 2008, all employers must only use the last four digits
or less of an employee's social security number or
otherwise use an existing employee identification number
other than a social security number when providing
employees with an itemized statement of earnings.


Analysis:

Existing law requires an employer to furnish each employee
with an accurate itemized statement showing, among other
things, the name of the employee and his or her social
security number, except that, by January 1, 2008, existing
law requires the employer to include no more than the last
4 digits of the employee's social security number or an
existing employee identification number other than a social
security number on any check provided to an employee.

This Bill would clarify two issues raised by language in SB
1618. First, it strikes the word existing as it relates to
employee identification numbers. Assuming most employers
are not currently using alternative identification numbers
to pay their employees, they must be allowed to establish
new employee identification numbers to implement the
provisions of the bill.

Legislative Track Update

AB 48 is on the Governor's desk.
AB 640 is dead.
AB 875 is on the Governor's desk.
AB 879 is on the Governor's desk.

SB 101 is law; it amends LC 226 re: pay stubs.
(summary to follow)

SB 174 is on the Governor's desk.
SB 285 is dead.
SB 862 is dead.

SB 940 has been VETOED by the Governor (didn't pass with a 2/3ds majority in either house)

Hooters Employee Handbook

After drafting a number of employee handbooks, I (serioulsy) often wondered how I would tackle a client like hooters. Well, here's their handbook, so I guess I know now.

Locker Suspended

The San Francisco Chronicle has this article:

Miles Locker has been suspended from his job in the Department of Industrial Relations for taking part in an informal "educational'' panel hosted by the San Francisco Bar Association's Barristers Club.

The panel's topic: "Meal and Rest Period Litigation.''

So, does this violate section 96(k)?

Ross v. Ragingwire Telecommunications, Inc.

Guest Blogger: Steven M. Chanley

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Ross v. Ragingwire Telecommunications, Inc.

The Court of Appeal (Third Appellate District) holds that an employer does not violate the FEHA’s prohibition against disability discrimination for firing an employee whose pre-employment screening tested positive due to physician-prescribed marijuana smoking. Although the drug use was lawful under California’s Compassionate Use Act of 1996, it remains unlawful under federal law. Nothing in the FEHA requires an employer to tolerate current illegal drug use. Moreover, the California statute “simply permits a person to use marijuana for medicinal purposes in our state without incurring state criminal law sanctions. The initiative says nothing about protecting the employment rights of those who do so.”

Comment: It is difficult not to be sympathetic to the plight of those who must rely legitimately on mind-altering drugs to mitigate their physical pain. However, it seems a non-starter to argue that the employment laws require an accommodation in the form of permitting illegal drug use.

Chamber of Commerce v. Lockyer

Guest blogger: Steven M. Chanley

Chamber of Commerce v. Lockyer (9th Cir.)

The Ninth Circuit Court of Appeals struck down on NLRA preemption grounds a California statute that forbids a recipient of state funding from using any of those funds to promote or deter union organizing. Although somewhat facially neutral, the problem was that, in practice, the statute had a disparate impact on an employer’s right of free speech as to matters falling within the NLRA’s coverage. Accordingly, the statute was found to be preempted under both the Garmon and Machinists preemption doctrines.

Comment: Another example of the NLRA forbidding states from putting their thumb on one side of the scale or the other in matters of unionizing. Isn’t it best just to leave such matters to a well-informed employee electorate, whose personal rights are at stake anyway?

Donald Green v. State of California

Guest Blogger: Steven M. Chanley

Donald Green v. State of California

Court of Appeal in the Fourth District holds that it is the defendant’s burden to prove plaintiff’s incapacity as an affirmative defense and not plaintiff’s burden to prove his capacity to perform as part of his prima facie case of disability discrimination under the FEHA. The holding specifically disapproves the Judicial Council jury instructions on the issue, as well as Brundage v. Hahn, both of which place the burden on the plaintiff as part of his prima facie case.

Comment: This is another unfortunate case where California law is made to deviate from federal ADA precedent in a way that makes no sense. Being a qualified individual with a disability should be considered a baseline standing requirement, properly placing it within the claimant’s prima facie case. This one is destined for depublication.

Leegin Creative Leather Products v. Diaz

Guest Blogger: Steven M. Chanley

Leegin Creative Leather Products v. Diaz

The employer sued an employee for fraud after a sub rosa investigation captured evidence that the employee displayed physical capabilities that were inconsistent with her temporary total disability claim. The civil suit was filed while the application was still pending before the WCAB and before there had been any administrative finding of fraud. The trial court granted the employee’s anti-SLAPP motion to dismiss.

The Court of Appeal affirmed. The employer did not contest that the employee’s application to the WCAB implicated her right to petition the government for the redress of grievances, and the Court of Appeal determined that, for two reasons, the employer’s Complaint failed to make a prima facie showing sufficient to sustain a judgment in its favor. First, the employer’s forwarding the employee’s application for benefits to its insurer was not evidence of justifiable reliance, according to the Court, because that act was non-discretionary and compelled by law. Second, the Court found that the employer could not show any resulting loss, because any eventual finding of fraud by the WCAB would preclude an award of benefits and an increase in insurance premiums as a matter of law. The Court of Appeal also based its holding on public policy grounds: “Permitting an employer to bring a civil action for fraud against an employee while the workers’ compensation proceeding is pending could have a chilling effect on an employee’s exercise of the right to file a workers’ compensation claim.”

Comment: This is clearly the case of a company’s frustration over a frivolous comp claim trumping its better judgment. As the Court of Appeal points out, adequate remedies exist at the administrative level (where the insurer bears the attorneys’ costs) for dealing with applicant fraud. I’ll bet the civil suit was probably several times costlier than whatever premium increase the employer would feel as a result of the comp claim.

Sorry for no posting.

An unfortunate confluence of work, personal, and family business have kept me very busy in the last two months. I'm hoping everything will be back to normal by September.

Reynolds v. Bement

The California Supreme Court has ruled unanimously that the state's labor laws do not impose personal liability on corporate officers and directors for unpaid wages owed by a corporate employer. This includes unpaid overtime pay based on the erroneous classification of workers as exempt employees [Reynolds v. Bement, et al., Cal. Sup. Ct. No. S115823 (August 11, 2005)].

Jackson Lewis has more, here.

Roberts

Nathan Newman has a first look a t Judge Roberts's labor law record here. (Warning: non-objective commentary follows). Roberts will get through comfortably, I'd bet on it.

Miller v. Department of Corrections

Via George's. I think you've probably all heard about this one. The California Supreme Court says just having an affair in the office can create a hostile work environment. The reason I wanted to post on this is because I think this does change some of the legal advice that we need to actually give, instead of speculating on results.

It just pays to keep relationships out of the workplace for so many reasons.

Also note that for an experimental 30 days, my posts will be cross-posted here.

CLEL joins the dark side!

Over at the California Wage and Hour Weblog, check out this commentary on the recent precedential opinion involving section 226.7 remedies:

We debated whether to mention this DLSE memo, since it has no precedential value in the Superior Court, and, although well-informed defense firms will be using this as an argument to persuade the trial courts to change their minds about Section 226.7 wages, not all defense firms are so informed. But we see now that the dark side blogs are talking about it, so we might as well weigh in.

(Emphasis, as usual, added). And where does that "dark side" link go? Right here to CLEL. First, I resent the value judgment; second, that inappropriately pigeonholes me and my work, my firm and its work into a category that it simply does not fit in.

Ironically, this blog is posted by a firm that "represent[s] employers, and both individuals and classes of employees in litigation concerning discrimination claims, wage and hour claims, and disputes over working conditions. The firm's goal is to bring the workplace of every employer and employee we represent into full compliance with California law." A description that also fits me and my firm.

Since its inception over a year ago, I have always striven 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."

To the extent that I have deviated from that, I have been unabashedly critical of many ( for example here, here, here, and here) "pro-employer" decisions, and the "shock and awe" tactics used by big defense firms in their marketing. I have also provided free advice to employees, and been attacked for being too pro-employee in many of the comments above. The irony is killing me. I'm attacked by both sides. Must mean I'm doing something right.

Nevertheless Walsh Skywalker has accused me of joining the dark side.

Signed,
Darth Jonerikus.

Humanscale Is Not A Panacea.

Big firm blast-broadcasts have hailed the recent Jones v. Humanscale Corp. decision as a "major victory in the area of non-competition, choice of law, and arbitration."

It is none of the above. At most, it might provide for an interesting "cf" at the end of a string of citations in a law school textbook. It is most certainly not something that should form the basis of any advice to a client.

First of all, this is a very specific fact pattern. The employer was a New Jersey corporation, and the arbitration agreement required arbitration to occur in New Jersey. That fact alone limits the usefulness of this holding to many in-state only employers.

Second, it's clear that if a normal conflicts analysis was applied, the non-compete agreement could not stand. If the Supreme Court takes this case and affirms the ruling of the Court of Appeal, then we have new law that we can rely on. But I wouldn't bet on that. This ruling basically gives employers the ability to make an end run around California law. As nice as that may be, this just isn't the kind of ruling that stands up for long.

If you want to go out on a limb with this ruling, call another firm. If you want to be safe rather than sorry, and not end up in $600/hr. litigation because your lawyer talked you into being a guinea pig for appellate litigation, call us.

Tellis v. Alaska Airlines, Inc.

Tellis v. Alaska Airlines, Inc.
9th Cir. Case No. 04-35137

Plaintiff's cross-country trip to retrieve family vehicle during his wife's late-stage pregnancy difficulties, and his calling her on the phone during the three and a half days he was away, were not "to care for" his wife under the Family and Medical Leave Act and thus not a protected absence from his employment.

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Well, if I was the Plaintiff, I'd take that one all the way to the Supreme Court. Heh. (=

CLEL Tops 25,000 Hits!

Thanks to all my readers! It's hard to imagine when you start and you get 300 hits a month that you'll get that many in a day. I'm thankful that people read. Please continue to provide feedback so that I can improve!

Head v. Glacier Northwest, Inc.

Head v. Glacier Northwest, Inc.
(9th Cir. Case No. 03-035567)

In employment discrimination action under Americans with Disabilities Act, plaintiff’s own testimony, unsupported by medical or comparative evidence, may suffice to establish triable issue of fact as to whether plaintiff’s ability to engage in a major life activity is impaired.

Comment: Yikes!

Coghlan v. American Seafoods Co.

I would like to preface this case note by saying that I am Norwegian and we don't fire people for not being Norwegian, we fire them for being Swedes! (=

Coghlan v. American Seafoods
(9th Cir. Case No. 03-35314)

The gist: When the same person demotes you that just promoted you have to show why they weren't being racist before.

Plaintiff, who alleged that he was terminated from his employment in commercial fishing by his company’s new owners because he was not of Norwegian birth, was required--to establish prima facie case--to present sufficient evidence to overcome the "same actor inference" of nondiscrimination based on fact that decision to terminate plaintiff was made by same person who had earlier made decisions to hire and promote him. Evidence that employer had, on two occasions, given temporary control of ship to Norwegian-born employee who had less experience than plaintiff was insufficient to overcome inference of nondiscrimination where there was uncontroverted evidence that decision was based on recommendation of non-Norwegian supervisor who felt plaintiff lacked sufficient leadership skills.

Bill Tracking Update

AB 48 - is in the senate, appears headed for passage.
AB 640 - failed passage in the committee, appears dead.
AB 875 - being ameneded in senate
AB 879 - ready for a floor vote in the senate, appears headed for passage

SB 101 - In Assembly, headed for a floor vote and headed for passage.
SB 174 - In committee.
SB 184 - Headed for a floor vote, appears ready to pass.
SB 285 - appears to be dead
SB 862 - appears to be dead
SB 940 - In committee in assembly.

DLSE Precedential Opinion: Meal, Rest Period Violations Are Penalties

The DLSE has issued its first precedential decision (instead of posting letters) holding that (1) violations of meal and rest periods are penalities not wages, and (2) you can't get waiting time penalties on same.

The decision is available here.

Megan's Law and Negligent Hiring

Fisher & Phillips has this piece on the effect of Megan's law on negligent hiring. Interesting read.

Make Over on Makeup case?

I don't usually blog federal cases, but I found it interesting that the Ninth Circuit agreed to rehear en banc the Harrah's case. The Bakersfield Californian has more.

Body art in the workplace

The OC Register has this article on piercings/tatoos in the workplace. It's interesting in that it shows that in Orange County's tightening labor market that less employers care, while some worry about perception even still.

Question: would discriminating against someone who has a tatoo be illegal, if, say, that person was Polynesian? (The recent Ninth Circuit ruling made it clear that certain appearance requirements are ok, but what about when it's cultural?)

Wierd Economy

GDP growth is solid. Inflation is nil. (In fact, it was -0.1% this month). Interest rates are still at historical lows, despite a series of hikes (yet these hikes are not directly mirrored in all of the lending markets).

It sounds like we should be having a boom, but we're not. Today's initial unemployment claims were up again, outpacing the expert's predictions. And the economy has failed to produce many jobs, with some months better than others, but none stellar. And the stock market is agnostic as well.

There are some other wierd factors, like long term treasuries being lower than shorter term rates. What is the bond market saying about this economy? Is this all caused by the deficit?

What's going on here?

My lay opinion is that our fiscal realignment in the last 5 years has produced an increasingly rentier based economy, which would at least explain the lagging job growth during a period of GDP growth.

For employers, this means, applying my hypothesis, that this should be a time when all HR decisions are given extra care, because jobs are still hard to come by, and people in desperate straits may look favorably at the chance to recover in a lawsuit.

DLSE Depublished Partial-Day PTO Rule

Via Sheppard Mullin's blog, the DLSE has depublished their "controversial" opinion letter regarding, among other things, the use of partial day PTO or vacations by exempt employees.

A Rise In Wage and Hour Lawsuits?

Via The Employment Law Bulletin: the Christian Science Monitor reports that attorneys are starting to more actively pursue wage violations in many states. The article attributes this to the rise in service sector jobs. Is that it, or is it the decrease in union representation that might solve it in-house? Just curious.

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?