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.