Labor and Employment Law Section

News from the Section 

Message from the Chair from the December eNews

Michael E. WhitakerIt is once again the end of one year and the beginning of another. This is a traditional time to reflect on what we have done over the past year, and to aspire higher for the coming year.

This is also the time of year when one third of California's lawyers must finish fulfilling our mandatory continuing legal education requirements for the three year compliance period. This year, it is those whose last names begin with "H" through "M" who must complete their MCLE by the February 2, 2015 deadline.

Your Labor and Employment Law Section offers a great way to complete compliance: we offer a wide variety of online programs for you that you can access anywhere you have an internet connection, any time of day or night.

Our online seminars are designed to be engaging and useful for labor and employment lawyers. We also offer a variety of self-study articles that you can use for up to half of your MCLE credits. And, yes, we have plenty of offerings to get you your ethics and bias specialty credits. You can download this MLCE by going directly to the Labor and Employment Programs in our online catalog at http://www.calbar.org/laborlaw/online.

Michael E. Whitaker
Section Chair

Quotes of the Month

  • "Your time is limited, so don't waste it living someone else's life" -- Steve Jobs
  • "The great thing about getting older is that you don't lose all the other ages you've been." -- Madeleine L'Engle
  • "Be kind, for everyone you meet is fighting a hard battle." -- Philo of Alexandria

Upcoming Educational Programs

Nuts & Bolts of an Employment Practice -- for New Employment Lawyers

Labor Section Nuts and Bolts ProgramPresented by the Labor and Employment Law Section. Co-Sponsored by the California Young Lawyers Association

Earn 6 hours Participatory MCLE, including 1 hour of Legal Ethics.

Friday, January 16, 2015
San Francisco
State Bar of California
180 Howard Street
San Francisco, CA
Register Online

Friday, January 30, 2015
Los Angeles
Loyola Law School
919 Albany Street, Robinson Courtroom
Los Angeles, CA
Register Online

For more information, see Nuts & Bolts of an Employment Practice.

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

This month's Labor and Employment Law News is devoted entirely to developments involving the National Labor Relations Board, which has become more newsworthy now that it has five members deemed properly appointed.

  • The NLRB issued a new election rule eliminating the 25-day waiting period between the unionization petition and the election, and deferring eligibility challenges until after the election. Employers will also now be required to provide e-mail and cell phone numbers, in addition to names and addresses.

  • A new NLRB decision requires employers to allow workers to use their employers' e-mail system to send union communications, on their own time, unless a total ban on e-mails during non-work hours is "necessary to maintain production or discipline." The decision reverses prior NLRB precedent.

  • An NLRB administrative law judge ruled that Wal-Mart violated the NLRA by giving disciplinary "coachings" to six employees who engaged in a work stoppage and threatening others, and by requiring an employee in another store to change a shirt that expressed union support.

This Month in Labor and Employment Law History

  • December 7, 1976: The United States Supreme Court held in General Electric Co. v. Gilbert that exclusion of pregnancy from a disability plan was not gender discrimination because the distinction it drew was between pregnant women and "nonpregnant persons." The decision led to enactment of The Pregnancy Discrimination Act of 1978.

  • December 27, 1946: Following a wave of post-World War II lawsuits for wages for preparatory activities, Representative Hoffman was reported to have drafted two amendments to the FLSA that were preparatory to passage of the Portal-to-Portal Act of 1947 (the subject of a new United States Supreme Court decision discussed below).

  • December 29, 1988: The California Supreme Court decides Foley v. Interactive Data Corporation, allowing employees to sue for breach of implied contracts but barring tort damages for breach of the covenant of good faith and fair dealing.

Top Four Newly-Published Labor and Employment Cases

  • Diego v. Pilgrim United Church of Christ (California Court of Appeal, November 21, 2014) 2014 DJDAR 15586. Held that discharge of an employee perceived to have reported an alleged violation of a statute or regulation to a government agency violates public policy, even if the employee did not actually make the report. Under Diego, perceived whistleblowers are protected from retaliatory discharge.

  • Integrity Staffing Solutions, Inc. v. Busk (United States Supreme Court, December 9, 2014) 2014 DJDAR 16194. The Supreme Court unanimously held the FLSA does not require warehouse employees be paid for 25 minutes a day allegedly spent clearing anti-theft security screenings at the end of each day. Results under California law may vary.

  • Aguilar v. ASARCO LLC (9th Circuit Court of Appeals, en banc, December 10, 2014) 2014 DJDAR 16273. This case affirmed a Title VII award of $300,000 in punitive damages where only $1 nominal damages (and no compensatory damages) were awarded.

  • Garden Fresh Restaurant Corporation v. Superior Court (California Court of Appeal, November 17, 2014) 2014 DJDAR 15365. When an arbitration agreement is silent about whether arbitration may proceed as a class or representative action, and silent about whether the trial court or arbitrator decides this issue, the trial court must decide. This is an issue not yet resolved by the United States Supreme Court.

Write for the Labor and Employment Law Review

COLUMNIST WANTED: The State Bar Labor and Employment Law Review is seeking out a regular columnist for our Wage and Hour Update. You will be writing the column every other issue (i.e., three times a year), alternating with columnist Lois M. Kosch. If you are interested, we encourage you to submit a writing sample constituting three case summaries of wage and hour cases from the past two months, along with a CV and a summary of your wage and hour experience. Please submit to ramit@mizrahilaw.com and david.peyerwold@ceb.ucla.edu by January 31, 2015.

ARTICLE 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:

  • December 10, 2014, 7-8 p.m. Protected Leaves of Absence, with speakers Chaya Mandelbaum 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 uses three quotes to describe three pieces of advice employers should follow if they do not want to encourage employees to sue.

  • "People must not be humiliated; that is the main thing." -- Anton Chekhov
  • "Diplomacy is the art of telling plain truths without giving offense." -- Winston Churchill
  • "It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do." -- Edmund Burke

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!

https://www.facebook.com/calbarsections http://www.twitter.com/calbarsections LinkedIn Like us on Facebook! Follow us on Twitter.

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