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

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

Summary Judgment in favor of defendant REVERSED.

SB 1809 Passes

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

SB 769 and the budget; Ralphs NLRB problems

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

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

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

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

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

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

The fallout from the grocery strike continues...

Legislative/News Round-Up

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

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

Nothing else significant to report in the news this morning.

Nyulassy v. Lockheed Martin Corp.

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

Order denying defendant's motion to compel arbitration AFFIRMED.

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

Bounty Hunter Law Compromise in Budget Deal

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

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

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

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

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

More to come...

News Summary

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

Otherwise, another slow news day.

On the legislative front:

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

Also,

News Update

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

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

 

(slow) News wrap

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

Update blawg info

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

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

Coke Strike

The San Diego Union-Tribune has this report:

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

Yet another strike over health care costs.

Coming soon: legislative roundup

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

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

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

Labor Market Summary

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

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

Students Bring Class Action Disability Discrimination Suit.

SFgate has this report.

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

The suit arises under California law in Alameda Superior Court.

3d Cir.: LMRA Shields Attorneys From Malpractice

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

The Legal Intelligencer has this report.

News Roundup

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

Brown University, NLRB No. 1-RC-21368

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

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

The LA Times has this report:

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

News Roundup

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

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

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

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

News Roundup

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

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

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

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

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

Ninth Circuit Myth Exploded

The Sacbee (via Howard Bashman) has this article:

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

The Ninth Circuit has been more ideologically balanced for years.

Minimum Wage

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

Longer Hours, Not Higher Productivity Enriches America

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

It's otherwise been a slow week.

Another Port Strike Looms

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

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

Europeans Extending Workweek

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

Wage Growth Study

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

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

California cities with worst wage growth:

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

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

New MoFo Update

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

"A Revised Roadmap For Disability Access in California"

Labor Code 96(k) Interpreted

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

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

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

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

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

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

IWC Shut Down

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

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

We'll keep this one tabbed.

Employment Figures Disappoint.

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

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

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

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

Proposition 64 Poll

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

Nothing on the website of the group sponsoring the proposition.

Janik case uproar

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

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

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

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

So, stay tuned.

Effect of Fed hike; jobs report on its way

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

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

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

---

What does it mean for lawyers?

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

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

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

Mission Statement

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

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

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

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

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

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