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!
12/23/2004
12/22/2004
Emergency Regs Withdrawn in Favor of Permanent Ones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
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
12/21/2004
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."
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."
12/14/2004
Guv Tries to Terminate Lunch Breaks
Or at least flex their scheduling. The Contra Costa Times reports.
The nurse labor issue in Fresno continues, the Fresno Bee 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.
12/12/2004
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.
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.
12/09/2004
TA strike at Cal State
Academic student employees at the 23 California State University campuses willThe Chronicle reports. The NLRB's recent ruling in NYU. does not apply to state employees.
stage a one-day strike today over unresolved labor issues.
12/07/2004
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?
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?
12/03/2004
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. . .
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. . .
12/01/2004
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.
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.
11/30/2004
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.]
[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.]
11/29/2004
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.)
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.)
11/22/2004
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.
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?
11/18/2004
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.
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.
11/17/2004
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.
11/15/2004
11/12/2004
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.
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.
11/10/2004
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.
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.
11/08/2004
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.
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.
See the following case summary if you doubt that.
11/05/2004
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.
10/29/2004
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.
10/26/2004
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.
10/22/2004
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.
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.
10/20/2004
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.
10/17/2004
Weintraub: End Employer-Based Health Care
Does Daniel Weintraub read CLEL? His editorial today says ...
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?
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.
10/15/2004
Happy Friday
The LA Times reports that ...
The national flu vaccine shortage has companies bracing for a surge in costlyLovely.
sick days and lost productivity.
10/14/2004
"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?
[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.]
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.]
10/13/2004
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:
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.
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.
10/06/2004
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.
Carter v. CB Richard Ellis, Inc. - 4th Dist.
10/05/2004
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. . .
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 increaseHealth insurance? I can't imagine that. CLEL doesn't have a solution for this, but recognizes one is needed!
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.
10/01/2004
9/30/2004
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.
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. . ."
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. . ."
9/28/2004
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.
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.
9/27/2004
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.
9/23/2004
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...
So, imagine you didn't have to deal with Workers' Compensation because, well, they're covered. Hmmm...
9/22/2004
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
9/20/2004
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.
Also vetoed were SB 1056 requiring "economic impact reports" before big box stores could come in.
9/17/2004
Friday news
In the ongoing hotel/worker labor dispute, the hotels have locked out the laundry worker. The LA Times reports.
9/15/2004
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.
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.
9/13/2004
Card checks.
NLRB may rule ahead of the election on card-check certifications. The LA Times reports.
9/10/2004
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.
". . . no cause of action exists for tortioius nonrenewal of an employment contract in violation of public policy."
Judgment below AFFIRMED.
9/08/2004
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.
Dismissal is REVERSED and REMANDED.
Read it here.
9/07/2004
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!
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!
9/03/2004
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.
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.
9/02/2004
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.
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.
8/31/2004
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.
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.
8/30/2004
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.
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.
8/27/2004
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 CommissionerThe State Bar). - Party must plead injury in fact for restitution, unless plaintiff is a nonprofit, union, or nonprofit legal service.
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.
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.
8/25/2004
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.
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.
8/24/2004
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.
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.
8/23/2004
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.
The LA Times notes the new federal overtime regulations are now in effect.
8/20/2004
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.]
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.]
8/18/2004
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.
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.
8/17/2004
Carter v. Department of Veterans Affairs, 4th App. Dist., Case No. E030908
This case should teach all who read it the value of a good legislative intent research firm.
The Court of Appeal held that the legislative amendment rejecting the Salazar interpretation of sexual harassment liability under FEHA was not retroactive. The Court held also that this amendment was not a mere clarification, but, rather was a change in the law because it changed the possible liable parties to only employers and the possible bases of harassment from any FEHA-prohibited kind to only sexual harassment.
Judgment of of the trial court is REVERSED.
The Court of Appeal held that the legislative amendment rejecting the Salazar interpretation of sexual harassment liability under FEHA was not retroactive. The Court held also that this amendment was not a mere clarification, but, rather was a change in the law because it changed the possible liable parties to only employers and the possible bases of harassment from any FEHA-prohibited kind to only sexual harassment.
We find that applying the amendment retroactively is constitutionally objectionable. Constitutional considerations of due process require that citizens be fairly apprised of laws affecting their conduct. Here, the import of the amendment is to impose substantial new obligations on employers, and to impose such liability, without clear notice, for conduct which was already completed in the past.
Judgment of of the trial court is REVERSED.
8/14/2004
Reeves v. Hanlon Cal. S. Ct. No. S114811
The California Supreme Court holds that interference with an at-will employment contract is properly analyzed as a tort of interference with a prospective economic advantage (i.e. does not require the existence of a contract) because the interference has to do with the future relationship.
Judgment AFFIRMED. (Unanimous)
The SF Chronicle has this report on this case.
Judgment AFFIRMED. (Unanimous)
The SF Chronicle has this report on this case.
California July Job Numbers
While the United States as a whole added an anemic 32,000 jobs in July, California actually lost 17,300. The LA Times reports.
The Inland Empire added 25,900 jobs in July, almost equal to the entire net growth in the US.
California's employers went into a hiring funk in July, cutting a net 17,300 jobs and raising concerns that the state's economic recovery has lost steamalong with the nation's.On the other hand, some areas of the state showed improving prospects, including surprisingly, the East Bay (The Contra Costa Times reports), and, not surprisingly, the Inland Empire (the Riverside Press reports) and the Central Valley (the Fresno Bee reports).
The Inland Empire added 25,900 jobs in July, almost equal to the entire net growth in the US.
8/13/2004
Haney v. Aramark Uniform Services, Inc., 5th App. Dist., Case No. F042980
The Court of Appeal held that just because plaintiff alleged that he engaged in what might be termed "concerted activity" (and therefore subject to the NLRA) when he tried to discourage fellow employees from going along with a fraudulent business practice, because interpretation of the CBA was unnecessary, that a cause of action for termination in violation of public policy could stand.
Judgment in favor of Defendant is REVERSED and the case is REMANDED.
Judgment in favor of Defendant is REVERSED and the case is REMANDED.
Guv signs Sue Your Boss Reform
Another piece on the "Sue Your Boss" reform from the Bee [which I'm becoming a bigger and bigger fan of—CLEL] on the occasion of its being signed into law.
Comment: With respect to both the "Sue Your Boss" law and the Unfair Competition Law (up for reform as Prop. 64), none of these reports have asked the question as to why it wasn't just simpler to fund the responsible agencies. CLEL can guess why, but would like to hear it from the legislators themselves.
Bay Area grocery unions are calling for boycotts if the supermarkets call for benefit reduction. The Contra Costa Times reports.
Comment: With respect to both the "Sue Your Boss" law and the Unfair Competition Law (up for reform as Prop. 64), none of these reports have asked the question as to why it wasn't just simpler to fund the responsible agencies. CLEL can guess why, but would like to hear it from the legislators themselves.
Bay Area grocery unions are calling for boycotts if the supermarkets call for benefit reduction. The Contra Costa Times reports.
8/11/2004
Labor relations news; Fed hike.
Yesterday, the Fed hiked the federal funds rate 0.25% to 1.5%. CLEL was stunned. The Fed states that its decision is based its observation that oil prices, and not a fundamental problem with the economy's growth caused the recent employment number. The WSJ reports (sub req'd.)
In other news:
The LA Times reports that LA Hotel workers are requesting a federal mediator.
The LA Times reports that a Wal-Mart is alleging a UC study was Union funded.
In other news:
The LA Times reports that LA Hotel workers are requesting a federal mediator.
The LA Times reports that a Wal-Mart is alleging a UC study was Union funded.
8/10/2004
Happy Tuesday News.
Daniel Weintraub has this opinion piece in the Sacramento Bee about the history of the "sue your boss" law, SB 796.
Dan Walters has this report in the Bee about what's on tap for the rest of the legislative session.
[The Bee is out ahead of all of the state's papers on legislative coverage in my opinion.]
And, completing the hat trick, the Bee has this article on the Northern California grocery labor talks.
Dan Walters has this report in the Bee about what's on tap for the rest of the legislative session.
[The Bee is out ahead of all of the state's papers on legislative coverage in my opinion.]
And, completing the hat trick, the Bee has this article on the Northern California grocery labor talks.
8/09/2004
Slow News Day
Slow news day. Nothing catching CLEL's eye today. The legislature's Labor & Employment Committee is meeting today. We'll see what they come up with.
8/06/2004
July Numbers Disappoint
The Sacramento Bee reports that "Workers' comp savings not yet felt."
The big news of the day is the latest jobs report showing anemic job growth in July, and revising June and May numbers down as well, the NY Times reports. Only 32,000 jobs were added in July according to the benchmark household survey. 150,000 jobs are required monthly to keep up with population growth. This result reflects about 15% of the results economists were expecting. Read the economists reactions in the WSJ (sub. req'd) [N.B. the more sanguine analysts argue that the actual number of jobs gained was higher, more like half-way in between the Establishment and Household data, but the Household survey continues to be the benchmark.—Ed]
The big news of the day is the latest jobs report showing anemic job growth in July, and revising June and May numbers down as well, the NY Times reports. Only 32,000 jobs were added in July according to the benchmark household survey. 150,000 jobs are required monthly to keep up with population growth. This result reflects about 15% of the results economists were expecting. Read the economists reactions in the WSJ (sub. req'd) [N.B. the more sanguine analysts argue that the actual number of jobs gained was higher, more like half-way in between the Establishment and Household data, but the Household survey continues to be the benchmark.—Ed]
8/04/2004
NHL Labor Woes
On a slightly different note ...
The NHL is having its own labor woes. After a lockout shortened the 1994-5 season to just half a season, they parties are back at it this year. The players refuse the league's demand of a salary cap. NHL players earn 76% of revenues in salary, higher than any other major sporting league in the US. The latest talks today went nowhere, the AP reports.
(There are three NHL teams in California. The San Jose Sharks, Western Conference Finalists in 2003-4, the Anaheim Mighty Ducks, Western Conference Champions in 2002-3, and the Los Angeles Kings.)
The NHL is having its own labor woes. After a lockout shortened the 1994-5 season to just half a season, they parties are back at it this year. The players refuse the league's demand of a salary cap. NHL players earn 76% of revenues in salary, higher than any other major sporting league in the US. The latest talks today went nowhere, the AP reports.
(There are three NHL teams in California. The San Jose Sharks, Western Conference Finalists in 2003-4, the Anaheim Mighty Ducks, Western Conference Champions in 2002-3, and the Los Angeles Kings.)
California Performance Review Highlights
The CPR states that:
The variety of programs responsible for unemployment insurance, workers’ compensation and occupational health and safety frustrates businesses attempting to comply with the law and workers that deserve benefits. In addition, the duplication of administrative functions results in additional and unnecessary costs to the state.It proposes the following fix:
...the Department should have an office that integrates all of the various appellate programs—Unemployment Insurance, Workers’ Compensation and Occupational Safety and Health [and Fair Employment & Housing (see chart)]—to ensure that decisions are fair and consistent and provide flexibility in assignments to prevent backlogs. The Department should centralize administrative support functions to ensure that all the operating divisions concentrate on achieving program success.It this happens, we could see some major changes in procedures, because these different agencies work quite differently. The mostly ministerial changes proposed to the Labor Code are here.
NLRB Criticizes Nurses' Bedside Manner
The Los Angeles Times reports that the NLRB has thrown out a vote to unionize by nurses at Cedars-Sinai Medical Center because of intimidation tactics.
8/03/2004
Norcal Grocery Strike?
The Sacramento Bee reports :
Four Northern California supermarket chains and Local 588 of the United Food and
Commercial Workers are scheduled to resume labor talks Monday, while the union's
members continue to work under terms of a day-to-day contract extension that so
far has averted a strike.
8/02/2004
SB 1809, as enrolled: first look.
SB 1809 provides for the follwing
- A redistribution of civil-penalty civil actions to 75% to the agency for eduction, and 25% to the employee.
- Procedural and administrative requirements for proceeding with the suit. For most violations, written notice to the Labor and Workforce Development Agency is required. If they investigate and give a citation, no lawsuit can commence. Other violations (there is a long list in new LC 2699.5) can be "cured" after written notice, but only three times per year.
- Gives judges discretion to lower award amount.
"a court may award a lesser amount than the maximum civil penalty amount
specified by this part if, based on the facts and circumstances of the
particular case, to do otherwise would result in an award that is unjust,
arbitrary and oppresive, or confiscatory." [new LC 2699(e)(2)] - Repeals requirement for filing any signed application with the DLSE (LC 431).
- It amends LC 98.6 to include an anti-discrimination clause for employees who enforce these laws.
There are two retro-activity clauses, one for the posters and one requiring the court to supervise any settlements.
Read this blog on My Yahoo.
Just in case you haven't noticed, I thought I'd point out a new feature of My Yahoo that is quite excellent. If you click on 'choose content' and add RSS Headlines (BETA), you can then get all of the headlines from this blog (and most others) listed as a news item in your Yahoo page. You can also use this "syndication" feature with any RSS aggregator, including http://www.bloglines.com
The URL is http://calemploymentlaw.blogspot.com/atom.xml
The URL is http://calemploymentlaw.blogspot.com/atom.xml
7/30/2004
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.
7/29/2004
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 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 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.According to the report, this is a version of Dunn's own amendment to SB 769, SB 1809.
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.
• 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.The fallout from the grocery strike continues...
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.
7/28/2004
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.
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.
7/27/2004
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
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.
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.
More to come...
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.
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.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.
More to come...
7/26/2004
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.
7/23/2004
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.
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.
7/22/2004
(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!)
7/21/2004
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.
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:
Yet another strike over health care costs.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.>
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.
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.
7/20/2004
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.
The suit arises under California law in Alameda Superior Court.
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.
7/19/2004
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.
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?)
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?)
7/15/2004
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.
7/13/2004
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);
* 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.
7/12/2004
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.
* 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.
7/09/2004
Ninth Circuit Myth Exploded
The Sacbee (via Howard Bashman) has this article:
The Ninth Circuit has been more ideologically balanced for years.
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.
7/07/2004
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.
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.
7/06/2004
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.
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.
7/02/2004
New MoFo Update
MoFo has a new labor & employment law update here, by James E. Boddy.
"A Revised Roadmap For Disability Access in California"
"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:
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.
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.
We'll keep this one tabbed.
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:
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.
7/01/2004
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.
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.
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.
--The Denver Business Journal, 3/15/02, citing EEOC data.
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.
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.
