Labor and Employment Law Section

News from the Section 

Message from the Chair from the June eNews

Section Chair Carol KoenigThose of you who practice in the public sector probably are familiar with the Section's publication, California Public Sector Labor Relations. This comprehensive text with its annual updates has served our section members very well for the past 25 years in sorting through the complex and sometimes seemingly conflicting statutory regulations for the employment relationship in the public sector. However, due to the major changes over the years (such as PERB assuming jurisdiction over disputes arising under the Meyers Milias Brown Act, the introduction of the union's right to fact-finding and evolving law on strikes and concerted activities), the book finally is beginning to show its age. Public Sector practitioners on the executive committee and their colleagues who use the book on a regular basis have concluded that the book could benefits from some reorganizing and restructuring – in other words, from an overhaul or at least a major revision. Our plan is to continue annual updates for 2014 (soon to be released) and 2015 and then have a new edition out for 2016. We want the publication to be as useful as possible for the practitioners who use it and would very much like to hear your suggestions and ideas on how the book can be improved to make it an even more useful tool for our day to day practices. You also are encouraged to let us know if you are interested in participating in the new edition. Suggestions, ideas, comments, notices of interest, etc., can be sent to me at ckoenig@wmprlaw.com.

We hope that you all manage to get in some relaxation and fun time this summer.

Carol Koenig
Section Chair
ckoenig@wmprlaw.com

Quotes of the Month

  • "A person without a sense of humor is like a wagon without springs. It's jolted by every pebble in the road." -- Henry Ward Beecher
  • "Most people are about as happy as they make up their minds to be." -- Abraham Lincoln
  • "In the time of your life, live." -- William Saroyan, from the play "The Time of Your Life."

Upcoming Educational Programs

The State Bar of California’s Fourth Annual Advanced Wage and Hour Conference

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

Wednesday, July 30, 2014
JW Marriott Los Angeles L.A. Live
900 West Olympic Blvd.
Los Angeles

Earn 6 Hours MCLE Credit

You can now REGISTER ONLINE for this program. For more information, see Advanced Wage and Hour Conference.

A Premier California Labor and Employment Education Event

Please join us for The Fourth Annual Advanced Wage and Hour Conference! This year's Conference includes many of California's top litigators, judges, and mediators, presenting advanced-level panels on today's most important topics, recent developments, and pending decisions; issues that arise in litigating and resolving wage and hour cases; the United States Supreme Court, and its impact on the practice of wage and hour law; an overview of wage and hour practice; and a view from respected judges who have seen it all.

See the full program at Fourth Annual Advanced Wage and Hour Conference. Presentations include:

  • Wage and Hour Update: the Year in Review
    • Jessica Riggin, Rukin Hyland Doria & Tindall LLP (Moderator)
    • Aashish Y. Desai, Desai Law Firm
    • Joan B. Tucker Fife, Winston & Strawn LLP
  • Who's the Boss of You? The Latest Developments on Independent Contractor VS. Employee and Joint Employer Issues
    • Theodora R. Lee, Little Mendelson PC (Moderator)
    • Aaron Kaufmann, Leonard Carder
    • Henry J. Josefsberg
    • Theresa M. Traber, Traber and Voorhees
  • Networking Lunch: PAGA Perspectives: Ten Years Later, Where We Are and Where We Are Going
    • Cynthia Rice, California Rural Legal Assistance (Moderator)
    • Julie Su, Division of Labor Standards Enforcement
    • Julie Trotter, Call & Jensen
  • Sidebar: Judges' Perspectives on Navigating the Changing Waters of Wage and Hour Class and Collective Actions
    •  Laboni Hoq, Asian Americans Advancing Justice (Moderator)
    • Hon. Kim Dunning, Orange County Superior Court
    • Hon. William F. Highberger, Los Angeles County Superior Court
    • Hon. Amy Hogue, Los Angeles County Superior Court
    • Hon. Josephine L. Staton, U.S. District Court for the Central District
  • Networking Reception

The State Bar of California Annual Meeting

Annual Meeting PreviewThe State Bar of California 87th Annual Meeting
September 11-14, 2014
Grand Hyatt San Diego
1 Market Place
San Diego, California

You can now REGISTER ONLINE for the Annual Meeting.
Early-bird Pre-Registration Deadline (Save $100): August 13

Earn up to 18 hours of MCLE credit and legal specialization, including credit in all MCLE subfields.

  • Early Bird Pre-Registration & Final Hotel Registration Deadline: August 13, 2014
  • Pre-Registration Deadline: August 21, 2014
  • Two-Day Registrations Available!

The four-day meeting will showcase an education agenda consisting of 143 MCLE seminars covering a variety of substantive topics, legal technology, access to justice, UPL, attorney advertising, and other key areas of interest.

The Labor and Employment Section is pleased to present the following programs:

Program 6

Proposed Amendments to the California Family Rights Act Regulations

Program 18

Ethical Minefields and eDiscovery: A Perfect Match

Program 50

Workplace Investigations: The Good, The Bad and The Ugly

Program 62

Attacking and Supporting the Workplace Investigation During Litigation

Program 83

Recognizing and Eliminating Unconscious Biases in Employment Law

Program 107

A Year in Review: Best and Worst Employment Law Cases

See the full schedule at 2014 State Bar of California Annual Meeting.

We look forward to seeing you in San Diego.

Webinar: Recent Developments in Retaliation and Whistleblower Law

Wednesday, October 8, 2014, 12 noon - 1 p.m.

This program offers 1 hour participatory MCLE credit. You must register in advance in order to participate.

An update on recent retaliation and whistleblower cases, paying special attention to the impact of Dodd-Frank on California employers and employees.With speakers Michelle Lee and John Mullan of Rudy, Exelrod, Zieff & Lowe LLP.

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

  • A Los Angeles Superior Court judge struck down as unconstitutional five California statutes providing teachers tenure and job security because of the allegedly "disproportionate burden on poor and minority students." Vergara v. California (June 10, 2014), Case No. 484642. Enforcement was stayed pending appeal.

  • American Apparel Inc. fired its founder and CEO Dov Charney following repeated claims that he sexually harassed employees, then returned him to work as a paid consultant. Years earlier, the company had reportedly begun requiring employees to sign documents acknowledging the company was a "sexually charged" workplace.

  • California Court of Appeal Justice Arthur Gilbert convinced a Court of Appeal panel in a different appellate district that the provision of the California Constitution barring judges from public sector employment during "the term for which the judge was selected" does not apply after the judge resigns. Gilbert v. Chang (Cal.App., June 27, 2014) 2014 DJDAR 8489.

This Month in Labor and Employment Law History

"The farther back you can look, the farther forward you are likely to see." -- Winston Churchill

  • July 2, 1964 -- The Civil Rights Act of 1964, including Title VII, was enacted into law after vigorous debate, just short of a century after the conclusion of the Civil War.

  • July 9, 1868 -- The Fourteenth Amendment to the United States Constitution was adopted. California did not ratify it until May 6, 1959.

  • July 26, 1990 -- The Americans with Disabilities Act was signed into law by President George H. W. Bush. By 2013, disability discrimination is alleged in California in 30.8% of EEOC complaints and in 17.8% of DFEH employment complaints.

California Supreme Court: New Labor and Employment Decisions

  • Salas v. Sierra Chemical Co. (California Supreme Court, June 26, 2014) 2014 DJDAR 8334. Employees who are undocumented immigrants may recover all relief available under FEHA other than reinstatement and earnings lost after their employers discover they were undocumented.

  • Iskanian v. CLC Transportation Los Angeles, LLC (California Supreme Court, June 23, 2014) 2014 DJDAR 8037. Employees who entered into an arbitration agreement prohibiting class and collective actions may not pursue class actions in any forum, but may still prosecute PAGA actions in court.

  • Ayala v. Antelope Valley Newspapers, Inc. (California Supreme Court, June 30, 2014) 2014 DJDAR 8620. When deciding whether to certify class actions alleging misclassification of employees as independent contractors, courts should consider if there are common questions about the employer's right to exercise control, and disregard individual variations in how that right was exercised.

  • Paratransit, Inc. V. Unemployment Insurance Appeals Board (California Supreme Court, July 3, 2014) 2014 DJDAR 8796. An employee who disobeys a lawful reasonable order because of a good faith error has not engaged in misconduct disqualifying the employee from getting unemployment insurance.

United States Supreme Court: New Labor and Employment Decisions

  • Lane v. Franks (U.S. Supreme Court, June 19, 2014) 2014 DJDAR 7828. The First Amendment protects public employees from retaliation for truthful testimony when testifying is not part of the employees' normal job duties. In this case, the Plaintiff's testimony was about his reasons for firing an employee charged with theft.

  • National Labor Relations Board v. Canning (United States Supreme Court, June 26, 2014) 2014 DJDAR 8373. This long-awaited opinion struck down this (and many other) NLRB decisions. The Court held that appointment of three Board members was invalid, and the Board therefore lacked a quorum, because the President had no power to make intra-session recess appointments while the Senate had pro forma sessions.

  • Harris v. Quinn (United States Supreme Court, June 30, 2014) 2014 DJDAR 8567. The First Amendment prohibits states from requiring homecare personal assistants to pay union agency fees, by calling them state employees, where the assistants are paid by the state but hired and controlled by those to whom they provide care.

  • Fifth Third Bancorp v. Dudenhoeffer (United States Supreme Court, June 25, 2014) 2014 DJDAR 8201. Employee Stock Ownership Plan ("ESOP") fiduciaries owe the same duty of prudence as other ERISA fiduciaries, except they need not diversify assets. They are not entitled to any presumption of prudence.

Other Courts: Top Three Newly-Published Labor and Employment Cases

  • Ruiz v. Affinity Logistics Corporation (9th Cir., June 16, 2014) 2014 DJDAR 9707. Truck drivers whose work was controlled in detail were held to be employees rather than independent contractors, even though they leased their own trucks and hired helpers as their own employees.

  • Stenehjem v. Sareen (Cal.App., June 13, 2014) 2014 DJDAR 7583. The Court of Appeal allowed an employer's cross-complaint for extortion to proceed, holding the employee's SLAPP motion was properly denied. While unrepresented, the employee sent an e-mail implying he would report allegedly criminal conduct unless the employer settled in the "seven figures."

  • SmithKline Beecham Corporation v. Abbott Laboratories (9th Cir., June 24, 2014) 2014 DJDAR 8161. The Ninth Circuit denied en banc review of a decision (in a non-employment case) holding that classifications based on sexual orientation are subject to heightened scrutiny for purposes of equal protection.

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.

Coming Next in the Labor and Employment Law Review

The September issue of our Section's Labor and Employment Law Review will take an in-depth look at some of the latest labor and employment cases to be decided by the California Supreme Court. The attorneys who litigated these cases will share their analysis and insights into the Court's holdings.

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 regularly broadcasts "Your Legal Rights," a show in which callers can ask questions of attorneys with expertise in different areas of the law.

To see all Labor-related programs in our archive, see Your Legal Rights.

Practice Tips

This month, Practice Tips passes along advice from San Francisco Superior Court Judges.

  • San Francisco Superior Court Judge Tomar Mason suggests that lawyers pick their fights: “Really experienced counsel usually reserve major arguments or vigorous rhetoric for things that really matter to their case.”

  • San Francisco Superior Court Judge Richard Kramer reports he has great success resolving discovery disputes by asking lawyers to bring chocolate chip cookies to discovery conferences. “[Y]ou can’t act like a jerk when you’re eating chocolate chip cookies.”

  • San Francisco Superior Court Judge Monica Wiley reminds lawyers that when you make a mistake, “Code of Civil Procedure §473 is your best friend.”

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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