Labor and Employment Law Section
News from the Section
- Message from the Chair
- State Bar of California Annual Meeting, October 8-11, 2015 in Anaheim
- Webinar: Danger Zones! Some Things Can't Be Fixed on Appeal, Tuesday, November 10, 12 noon- 1 p.m.
- Webinar: Labor Law for Employment Lawyers, Wednesday, November 18, 12 noon- 1:15 p.m.
- Webinar: SIMPLY SEX -- Sex, Sexual Orientation, Gender, Gender Identity, and Gender Expression Bias in the Workplace and Beyond, Thursday, December 10, 12 noon- 1 p.m.
- Webinar: Using Unpaid Interns, Apprentices, Volunteers, and Trainees: It Could Cost You! Wednesday, December 16, 12 noon- 1 p.m.
- Webinar: Successful Mediation of an Employment Case with Represented and Un-represented Litigants, Friday, January 8, 12 noon- 1 p.m.
- L&E Section Members: Please Take Five Minutes to Complete Our Cooperative Law Survey by This Friday, August 21, 2015
- Special Offer for Free Section Membership
- Quotes of the Month
- This Month in Labor and Employment Law News
- This Month in Labor and Employment Law History
- Top Three Newly-Published Labor and Employment Cases
- News From the Labor and Employment Law Review
- Your Legal Rights Radio Show
- Tribute to Justice Joe Grodin, Labor and Employment Law Pioneer
- Practice Tips
- Get Online Participatory MCLE Credit from the Labor and Employment Law Section
- Case Law Alerts
- Section Publications on California Public Labor & Employment Law
- Follow the Sections on Facebook, Twitter and LinkedIn
Message from the Chair
July 26 marked the 25th anniversary of the Americans With Disabilities Act. The ADA has fostered greater employment opportunities for people with disabilities. The ADA and its state counterparts have also fostered an expansive and growing collection of appellate authority.
The journey to passage of the ADA lasted decades. Ultimately, the ADA was passed with the near consensus of Congress. The vote in the Senate was 76 to 8. The vote in the House was 403 to 20.
Legislators described their experiences and those of their family members. Senator Harkin talked about his brother who is deaf; Senator Kennedy invoked his son, who had a leg amputated; and Representative Coelho described the discrimination he faced because of epilepsy. Many others testified about the experiences they faced.
Upon signing the ADA into law, President George H.W. Bush noted that there were concerns the ADA "may lead endlessly to litigation," but proclaimed "Let the shameful wall of exclusion finally come tumbling down."
September's edition of the Labor and Employment Law focuses on the ADA. Your State Bar Labor and Employment Law Section also offers plenty of online continuing legal education about disability discrimination in employment. We offer a four-part series called Litigating Disability Discrimination Cases. We offer a presentation of a Mock Trial of a Disability Case. And we offer more online.
Labor and employment law will continue to change and develop. Your State Bar Labor and Employment Law Section is here to help.
Speaking of change, could you please take five minutes to complete our Section's cooperative law survey? We are looking at whether our Section should adopt voluntary protocols or propose procedural changes to make our practices more pleasant and efficient for our clients. Please click here to take our five-minute survey by this Friday, August 21, 2015.
Michael E. Whitaker
State Bar of California Annual Meeting
The State Bar of California 88th Annual Meeting
October 8-11, 2015
The State Bar of California returns to sunny Anaheim for the 2015 Annual Meeting. The Annual Meeting is a multiday showcase of continuing legal education courses, celebrity speakers, and noted legal scholars. Each day gives you several choices of courses and special events.
The Annual Meeting registration fee is structured to make it more affordable to attend. You can select either a Full Meeting Pass or a 2-Day Pass. Special fees are available for Young Lawyers and New Admittees. September 14 is the deadline for the lowest fee.
More than 100 programs are planned for the Annual Meeting, including these from the Labor and Employment Law Section:
Mastering Employment Mediations
Employment Investigations Basics: Ethics, Bias Avoidance and Interviewing Skills (Part I)
Employment Investigations Basics: Ethics, Bias Avoidance and Interviewing Skills (Part II)
The Year In Review: An Overview of Recent Employment Law Cases
Bullet-Proof Deposition Preparation Techniques for the Plaintiff Employee
For more information, see The State Bar of California Annual Meeting.
L&E Section Members: Please Take Five Minutes to Complete Our Cooperative Law Survey by This Friday, August 21, 2015
The Labor and Employment Law Section has launched a Cooperative Law subcommittee. Its purpose is to evaluate practice in our field and propose improvements that promote attorney civility, professionalism, efficiency, legal access and satisfaction. Click here to take our quick survey by this Friday, August 21, 2015.
Section members who return a completed survey by the deadline may separately request entry in a random drawing to win one of two prizes: one complimentary 2016 L&E Section membership or one complimentary registration for one person at a single 2016 State Bar of California Labor and Employment Law Section program. As with most all good things in life, restrictions and exclusions do apply; see the survey for details.
Special Offer for Free Section Membership
Join a second Section for free for the remainder of 2015! And if you know anybody who should be a member of the Labor and Employment Law Section, but isn't, forward them the link!
This offer is good for attorney members of The State Bar of California. You can take advantage of the offering during the month of August only. As a Section member, you will have access to our Section's "Members Only Area", and you will automatically receive any Section journals that come out during the promotional period.
Go to THIS LINK to take advantage of this special offer. You will need to sign in to My State Bar Profile.
Webinar: Danger Zones! Some Things Can't Be Fixed on Appeal
Tuesday, November 10, 12 noon- 1 p.m.
This program offers 1 hour participatory MCLE credit. You must register in advance in order to participate.
The webinar will arm trial counsel with a list of potential pitfalls that could irreparably damage their eventual chances on appeal. Focused on preventing mistakes, the appellate specialists will draw on employment cases to highlight such danger zones as trial court orders that must immediately be taken to the court of appeal or appellate rights waived, and deadlines that are jurisdictional and so not subject to resurrection once passed. Procedurally unique and complex stages of litigation—such as post-trial motions, the determination of whether orders are appealable, and the designation of the record on appeal—will be explored. By the end of the webinar, trial counsel will have the assurance that they can recognize key danger zones and minimize risk to their chances on appeal.
- Jennifer King is certified as a specialist in appellate law by the State Bar of California Board of Legal Specialization. She is an experienced appellate lawyer who has focused exclusively on appellate work for the past 20 years. Ms. King spent more than 10 years as a judicial attorney at the Second District Court of Appeal, and the balance of her time in private practice. She chaired the State Bar's Appellate Law Advisory Commission and currently is the President of the Board of Directors of the California Supreme Court Historical Society. She also presently serves as a member of the California State Bar's Committee on Access to Justice. Since 2009, she has taught a course through Pincus Professional Education designed to prepare attorneys for the appellate specialist exam. In her community, Ms. King serves as a City Council member. She graduated from Stanford University with degree in political science, with distinction, and she received her law degree from Stanford Law School.
- Dawn Schock has over 30 years experience in the California state and federal appellate courts. She has served as lead appellate counsel in over 100 appeals and writ proceedings, representing civil clients in a broad range of substantive areas, including employment, contractual arbitration, maritime, securities, commercial contracts, anti-SLAPP, and others. Her peers have awarded her their highest (5) Martindale Hubbell rating. Her civil cases have resulted in 18 published decisions. Ms. Schock has been certified as an appellate specialist by the California State Bar Board of Legal Specialization since 1999. She formerly was a partner in a top-rated West Coast law firm and taught Appellate Advocacy at Loyola Law School, Los Angeles for six years. Ms. Schock also served as a judicial attorney with the Second District Court of Appeal. A trained mediator, she has served as a panel mediator for the Los Angeles County Superior Court, the Central District federal court, and currently serves as a volunteer mediator for the Second District Court of Appeal. She also arbitrates cases for the National Futures Association.
Webinar: Labor Law for Employment Lawyers
Wednesday, November 18, 12 noon- 1:15 p.m.
This program offers 1.25 hour participatory MCLE credit. You must register in advance in order to participate.
This webinar will provide an introduction to labor law principles through examination of the most common types of unfair labor practice claims. Our presenters will discuss the elements of each type of claim, available defenses, and the factual scenarios in which these claims arise.
- Joseph L Paller, Jr., Gilbert & Sackman
- Erich Shiners, Renne Sloan Holtzman Sakai
Webinar: SIMPLY SEX -- Sex, Sexual Orientation, Gender, Gender Identity, and Gender Expression Bias in the Workplace and Beyond
Thursday, December 10, 12 noon- 1 p.m.
This program offers 1 hour participatory MCLE credit, including 1 hour credit in Elimination of Bias. You must register in advance in order to participate.
This webinar will reference pop culture events and movies to discuss and explain the various sex and gender protected classes and the differences between them. For example, which classes would apply to Bruce Jenner as opposed to Caitlin Jenner? Frank N. Furter, Tootsie, and Mrs Doubtfire? How does "gay," "straight," and "bisexual" fit into it all. After building a familiarity with the terms, the webinar will use the terms (sex, sexual orientation, gender, gender identity, and gender expression) to examine bias and elimination of gender and sex-based bias.
- Samson Elsbernd
- Maribel Hernandez
Webinar: Using Unpaid Interns, Apprentices, Volunteers, and Trainees: It Could Cost You!
Wednesday, December 16, 12 noon- 1 p.m.
This program offers 1 hour participatory MCLE credit. You must register in advance in order to participate.
Ever since the California Supreme Court's Martinez v. Combs decision in 2010, litigants have hotly contested the issue of which workers are "employees." Though the U.S. Supreme Court addressed the question of compensation of trainees nearly 70 years ago in Walling v. Portland Terminal, and the U.S. Department of Labor and California Labor Commissioner each issued guidance on the question in 2010, California's law remains uncertain on which interns, apprentices, volunteers, and trainees are entitled to compensation. The recent Glatt v. Fox Searchlight opinion from the U.S. Court of Appeals for the Second Circuit adds yet another dimension to this evolving area of law.
- Anthony J. Oncidi, Proskauer Rose LLP
- Bryan Schwartz, Bryan Schwartz Law
- Chaya Mandelbaum
Webinar: Successful Mediation of an Employment Case with Represented and Un-represented Litigants
Friday, January 8, 12 noon- 1 p.m.
This program offers 1 hour participatory MCLE credit; 1 hour credit in Legal Ethics. You must register in advance in order to participate.
Employment cases are highly emotional on both sides. Successful attorneys will be able to sidestep the hidden pitfalls while mediating these cases by understanding the role of emotional preparation of their client, projecting correctly the needs and expectations of the unrepresented party, and staying on the right side of the ethical line when confronted with a party's lack of legal knowledge. Learn when overreaching fails, what the self-representing litigant risks, and what your own client's emotional investment in the solution will be.
Speakers: Claudia Hagadus Long, ADR Services, Inc.
Quotes of the Month
- "The enemy of the conventional wisdom is not ideas but the march of events." - John Kenneth Galbraith
- "Progress on this journey often comes in small increments, sometimes two steps forward, one step back. And then sometimes, there are days like this when that slow, steady effort is rewarded with justice that arrives like a thunderbolt." - Barack Obama
- "Your assumptions are your windows on the world. Scrub them off every once in a while, or the light won't come in." - Isaac Asimov
This Month in Labor and Employment Law News
- The number of people employed in the United States has increased for 57 months in a row - the longest period of job expansion since World War II. The percentage of Americans in the workforce, however, is still considerably below its peak.
- The UAW has begun its first contract negotiations since 2011 with GM, Ford and Fiat Chrysler. Current contracts expire in September. The UAW has the right to strike at GM and Chrysler for the first time since 2007.
- A draft Executive Order would require federal contractors and their subcontractors to give employees 56 hours a year of paid leave for illness of employees and their family members and for addressing domestic violence, sexual assault and stalking. Regulations would be issued by September 30, 2016.
This Month in Labor and Employment Law History
- August 22, 1966: The United Farmworkers Union is formed from the merger between the Agricultural Workers Organizing Committee (AWOC) and the National Farm Workers Association (NFWA)
- August 27, 1950: President Truman uses the Army to seize all the nation's railroads to prevent a general strike, not returning them to their owners until two years later
- August 28, 1963: Martin Luther King, Jr. gives his "I Have a Dream" speech during the March on Washington
Top Three Newly-Published Labor and Employment Cases
- Sanchez v. Valencia Holding Company (California Supreme Court, August 3, 2015) Case No. S199119. This case held that the U.S. Supreme Court's Concepcion decision required upholding the (non-employment) arbitration agreement's class action waiver. It also held that California's unconscionability doctrine is largely not otherwise preempted, but that the particular arbitration agreement was not unconscionable under California law.
In the next couple of weeks, the Labor and Employment Law Section will present a webinar analyzing this blockbuster case's effect on employment cases.
- Safeway, Inc. v. Superior Court (California Court of Appeal, July 22, 2015) Case No. B255216. Affirmed class certification of UCL claims on behalf of over 200,000 supermarket store-level employees alleging a practice of "of not paying meal break premiums under any circumstances." Also held employers must pay meal break premiums whether or not the employee requests payment.
- Complainant v. FOXX (EEOC, July 16, 2015) Appeal No. 0120133080, Agency No. 2012-24738-FAA-03. The EEOC held sexual orientation discrimination is prohibited by Title VII because it is a form of sex discrimination.
News From the Labor and Employment Law Review
The September issue of our Section's Labor and Employment Law Review observes the 25th anniversary of the Americans with Disabilities Act with the following articles:
- A Look Back: Title VII, the Rehabilitation Act, and the ADA, by Jinny Kim
- The ADA: Is It a Happy Anniversary? by Dana LaMon
The newest members of the Section's Executive Committee (Laura Ziegler Davis, Monica T. Guizar, Joseph T. Ortiz, and Kristianne T. Seargeant) are also introduced to our readers.
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.
MCLE CREDIT: If you're looking for MCLE credits (including for ethics), consider self-study articles from the Law Review, available HERE for as low as $15 a credit.
Your Legal Rights
Radio 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.
The most recent labor and employment program was presented on June 24. The very timely topic was same sex marriage and employee benefit issues, with guests Clarissa A. Kang (Trucker Huss, APC in San Francisco) and Julie Hayden Wilensky (Lewis Feinberg in Oakland)
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.
Tribute to Justice Joe Grodin, Labor and Employment Law Pioneer
UC Hastings is presenting a tribute to retired California Supreme Court Justice Joe Grodin, on the occasion of his 85th birthday and the publication of the latest edition of his book on California Constitutional law. The tribute will be held on Thursday, November 12 from 5:30 p.m. - 7 p.m. at UC Hastings. Click here to RSVP for the Tribute.
The tribute is being held in connection with a 1-1/2 day Advancing Equal Access to Justice Conference that Justice Grodin initiated. That conference will be held on November 12 and 13. The keynote speaker on November 12 is Tani G. Cantil-Sakauye, Chief Justice of California.
This month, Practice Tips offers a quote from a published case to illustrate how vivid legal writing can capture the reader's attention:
- AB 987 declares it unlawful to "retaliate or otherwise discriminate against a person for requesting accommodation" on the basis of religion or disability. The legislation states it is declarative of existing law, overturning the contrary holding of Rope v. Auto-Chlor Sys. of Washington, Inc. (2013) 220 Cal.App.4th 635.
- Cheerleaders who are "utilized by a California-based professional sports team during its exhibitions, events, or games" are to be deemed employees. AB 202 was signed into law on July 15.
Get Online Participatory MCLE Credit from the Labor and Employment Law Section
Your Labor and Employment Law Section offers lots of continuing education about employment discrimination law, as well as many other topics. We have online MCLE you can access any time, day or night, using a handy new webpage organized by category. Click on any of the topics listed below to see what courses your Section offers on that topic:
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. Section members can sign up through My State Bar Profile.
Section Publications on California Public Labor & Employment Law
Our Section published the two definitive treatises on California public sector labor and employment law:
Follow the Sections and CYLA on Facebook and Twitter and LinkedIn!
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We're delighted to announce that the Labor and Employment Law Section just launched our own pages on Facebook and Twitter. We're looking forward to interacting with a wider community and reaching out to people who are not currently members.
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Labor & Employment Law Section The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639