Labor and Employment Law Section

News from the Section 

Message from the Chair from the September eNews

Michael E. WhitakerAs Autumn progresses, and as the days grow shorter and the nights longer, we will soon be adjusting our clocks back one hour. Twice each year, we are reminded that the time shown on our clocks is a construct of humankind, not some fixed and immutable property of the universe.

And so it is with California employment law. Autumn is the time of year when the California Legislature has finished its work enacting new statutes, and we begin planning how to adjust to these changes. We are once again reminded that laws are also a human construct, neither fixed nor immutable.

This month's Practice Tips notes some of the key new California employment law statutes that we practicing employment lawyers will be helping our clients to implement.

Looking at changes in our area of law from a wider temporal angle, This Month in Labor and Employment Law History reminds us of the time not so long ago when some employers fired women when they married. It also reminds us of the time just one century ago when the law considered labor unions to be antitrust conspiracies.

Change is one of the things that makes our work as labor and employment lawyers so interesting. No matter how much we know about our area of the law, there is always something more we must learn as new statutes are enacted and new appellate cases published.

Continuing legal education is an integral part of the mission of our Labor and Employment Law Section. We make it available to you in many ways so you can get it how and when you want it, including online continuing legal education available on demand 24 hours a day. We are proud to be your continuing legal education provider.

Michael E. Whitaker
Section Chair

Quotes of the Month

  • "Time dissipates to shining ether the solid angularity of facts." -- Ralph Waldo Emerson (1803-1882)
  • "I have a theory that the truth is never told during the nine-to-five hours." -- Hunter S. Thompson (1937-2005)
  • "Facts are stubborn things." -- Alain René Le Sage (1668-1747)

Upcoming Educational Programs

Litigating a Disability Discrimination CaseLitigating A Disability Discrimination Case - Trial Demonstration Seminar

Presented by: The Labor and Employment Law Section of the State Bar of California.

This program offers 4.75 hours MCLE credit

Tuesday, November 18, 2014
Loyola Law School
919 Albany Street
Los Angeles, CA
Please note:
The Los Angeles Programs Is Sold Out


Thursday, November 20, 2014
The State Bar of California
180 Howard Street
San Francisco, CA
REGISTER NOW

For more information, see Litigating A Disability Discrimination Case.

Get Online Participatory MCLE Credit from the Labor and Employment Law Section

Get your MCLEs online! View Labor and Employment Law Section programs over the internet for participatory MCLE credit. Choose from over 100 Labor and Employment Law programs anywhere you have an Internet connection, any time of day or night. These can be downloaded at www.calbar.org/online-cle (select Labor and Employment Law), or go directly to the Labor and Employment programs.

This Month in Labor and Employment Law News

  • The U.S. Department of Labor reported that new unemployment insurance claims have fallen to their lowest level since 2000. The national unemployment rate is reportedly 5.9%, its lowest level since July 2008, but California's rate remains higher at 7.4%. On the other hand, the national labor participation rate is 62.7%, its lowest level since 1978.

  • Governor Brown vetoed AB 2271, which would have prohibited discrimination against job applicants because they have been unemployed.

  • Over the objections of CalPERS and the City of Stockton, a bankruptcy court ruled that Stockton employees' pensions could be reduced in bankruptcy proceedings the same way as other debts. An appeal may ensue.

This Month in Labor and Employment Law History

  • October 6, 1986: Female flight attendants won an 18-year lawsuit against United Airlines, which fired them for getting married, with approval of a settlement reinstating 475 attendants and paying $37 million in back pay to 1,725 flight attendants. United Airlines, Inc. v. McDonald (1977) 432 U.S. 385.

  • October 15, 1914: The Clayton Antitrust Act was enacted, exempting labor unions from antitrust laws that had been interpreted to ban boycotts, peaceful strikes, peaceful picketing, and collective bargaining.

  • October 29, 1980: Opinion issued in Cleary v. American Airlines, Inc., holding that employees may recover tort damages for breach of the covenant of good faith and fair dealing (later overturned by Foley v. Interactive Data Corp.)

Top Three Newly-Published Labor and Employment Cases

  • Dynamex Operations West, Inc. v. Superior Court (California Court of Appeal, October 15, 2014) 2014 DJDAR 14072. For claims covered by IWC wage orders, workers are employees if the defendant (a) exercises "control over the wages, hours or working conditions," or (b) "suffers or permits" the workers to work, or (c) creates "a common law employment relationship."

  • The Retail Property Trust v. United Brotherhood of Carpenters (9th Circuit, September 23, 2014) 2014 DJDAR 13131. A shopping mall's claims against a labor union and others for trespass and nuisance were not preempted by the LMRA because the mall sought only time, place and manner restrictions to limit "raucous and threatening picket activity."

  • Network Capital Funding Corporation v. Papke (California Court of Appeal, October 9, 2014) 2014 DJDAR13841. Courts, not arbitrators, must decide whether arbitration agreements allow class action arbitration, absent clear and unmistakable agreement that the arbitrator decides. Sandquist v. Lebo Automotive, Inc. (2014) 228 Cal.App.4th 65 reached the opposite conclusion.

Coming Next in the Labor and Employment Law Review

The November issue of our Section's Labor and Employment Law Review will feature the following articles:

  • This Is Not Your Father's (or Mother's) Investigation: How Workplace Investigations Have Changed Over the Past 10 Years, by Susan Woolley and Michael A. Robbins;

  • Improving Results in Mediation: Practical Lessons from the Science of Decision Making, by Steven G. Pearl; and

  • Animals in the Workplace: New Accommodation for Employees with Disabilities, by Phyllis W. Cheng and Mallory Sepler-King.

Submissions welcome! We encourage you to take a look at our Guidelines and Editorial Policy and to send us your well-researched articles for consideration.

Section Publications on California Public Labor & Employment Law

Our Section published the two definitive treatises on California public sector labor and employment law:

Your Legal Rights

Labor and Employment Law Section on the RadioRadio station KALW and 15 other radio stations regularly broadcast "Your Legal Rights," a show in which callers can ask questions of attorneys with expertise in different areas of the law. Our Section sponsors programs on labor and employment law. Here's what's coming up next:

  • October 29, 2014, 7-8 p.m. Stopping Workplace Harassment Because of Race, National Origin or Religion, with speakers Phil Horowitz and Maribel Hernandez.

Tune into KALW at 91.7 FM for the San Francisco Bay area and on the Internet at www.kalw.org. To see all Labor-related programs in our archive, see Your Legal Rights.

Practice Tips

This month, Practice Tips lists some of the more notable newly-enacted laws that will affect employers and employees beginning next year.

  • Newly enacted Labor Code §2810.3 makes businesses whose workers are supplied by labor contractors jointly responsible for payment of wages, securing workers compensation insurance, and workplace safety.

  • Beginning January 2015, California employers with at least 50 employees must begin training supervisors about preventing abusive conduct at work, also known as "workplace bullying". The training mandated by AB 2053 will be incorporated into the already-mandated training about preventing sexual harassment.

  • California's Fair Employment and House Act has been amended to prohibit discrimination and harassment against unpaid interns.

  • Beginning July 1, 2015, almost all California employees will become entitled to three paid sick days per year for their own illness or that of a parent, child, sibling, spouse, grandparent or grandchild.

Get Online Participatory MCLE Credit from the Labor and Employment Law Section

Get your MCLEs online! View Labor and Employment Law Section programs over the internet for participatory MCLE credit. Choose from over 100 Labor and Employment Law programs anywhere you have an Internet connection, any time of day or night. These can be downloaded at www.calbar.org/online-cle (select Labor and Employment Law), or go directly to the Labor and Employment programs.

Case Law Alerts

Have you signed up to receive Labor Case Alerts? These case summaries are being sent to you by the Labor and Empoyment Law Section, in cooperation with Phyllis Cheng, Director of the Department of Fair Employment and Housing (DFEH). Section members can sign up through My State Bar Profile.

Follow the Sections and CYLA on Facebook and Twitter and LinkedIn!

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Social media, anyone? The Sections and the California Young Lawyers Association (CYLA) now have a page on Facebook, Twitter and a new LinkedIn account, where we can keep you up-to-date on our latest news and events.

We're also looking forward to interacting with a wider community and reaching out to people who are not currently members.

We invite you to "Like" us and follow our "Tweets."

And by the way, the CYLA definition of "young" is any California attorney under the age of 36 or in their first five years of practice.

Contact Us

Labor & Employment Law Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
415-538-2590
FAX 415-538-2368
LaborLaw@calbar.ca.gov