Labor and Employment Law Section

News from the Section 

Message from the Chair from the November eNews

Michael E. WhitakerWith the holidays now upon us, there is much for which we can be thankful. It is easy enough to complain about this or that, but when we step back further we can see the bigger picture more clearly. As Honore de Balzac put it: "We exaggerate misfortune and happiness alike. We are never as bad off or as happy as we say we are."

It is no exaggeration, however, to say that I am personally very thankful this holiday season. I am honored and humbled to report that Governor Brown has nominated me to be a Los Angeles County Superior Court Judge.

There are already a number of veterans of labor and employment law practice who are serving on the Los Angeles County Superior Court, including our former Section Executive Committee member Rupert Byrdsong, former California Employment Lawyers Association ("CELA") Chair Virginia Keeny, and former CELA Board member Jeffrey Winikow.

Our area of practice is interesting indeed. With every case we litigate, and with each matter on which we give advice, we learn something more about people, work, human nature, and our society. The same is true of the law generally.

While the nature of my work may be changing, I have agreed to complete my one-year term as Chair of our Section to help continue our mission of providing high-quality legal education and building collegiality among practitioners.

While we enjoy the warmth of another year's holiday season, I leave you with an exhortation from Martin Luther King, Jr.: "Life's most persistent and urgent question is: 'What are you doing for others?

Michael E. Whitaker
Section Chair

Quotes of the Month

  • "We make a living by what we get, we make a life by what we give." -- Winston Churchill
  • "Don't judge each day by the harvest you reap but by the seeds that you plant." -- Robert Lewis Stevenson
  • "How wonderful it is that nobody need wait a single moment before starting to improve the world." -- Anne Frank

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

  • A California federal jury awarded a record $185 million in punitive damages to an employee who claimed she was retaliated against and fired for complaining she was discriminated against because of her pregnancy. Compensatory damages were $870,000. The case is Juarez v. AutoZone Stores Inc. (S.D. Cal.) 08CV-416.

  • A United States District Judge approved the City of Stockton's bankruptcy plan, which avoided cutting vested pensions, despite ruling a month earlier that public employee pensions could be reduced in Chapter 9 municipal bankruptcy proceedings. The judge said the same high standard of need required in Chapter 11 cases to cut pensions may also apply to Chapter 9 cases.

  • The United States Department of Labor reported that wages rose 0.8% in the third quarter, the highest increase in over six years. There is some evidence the lowest-paid workers are experiencing the highest earnings growth. The Bureau of Labor Statistics reported that for the year ending September 30, the wages of the lowest 10% of earners increased 3%, compared to 0.5% for the 90th percentile.

This Month in Labor and Employment Law History

  • November 9, 1935: The Congress of Industrial Organizations ("CIO") is formed as a national association of industry-wide unions, in contrast to unions whose membership was confined to workers in a particular trade. The CIO began as part of the American Federation of Labor ("AFL"), broke away in 1938, then merged back in 1955 to form the AFL-CIO.

  • November 17, 2014: A federal jury in San Diego awards a record $185 million in punitive damages to a woman who claimed she was fired in retaliation for complaining about pregnancy discrimination.

  • November 21, 1945: The UAW begins what would turn out to be a 113-day nationwide strike against General Motors. The strike was part of a wave of post-World War II strikes seeking to increase wages. The strike ended with a 17.5% wage increase.

Top Three Newly-Published Labor and Employment Cases

  • Johnson v. City of Shelby (United States Supreme Court, November 10, 2014), 2014 DJDAR 15047. This short but emphatic per curiam decision held that there is no heightened pleading standard in employment discrimination cases. It rejected the assertion that more specific pleading was required by Bell Atlantic Corp. v. Twombly (2007) 550 U.S. 544 and Ashcroft v. Iqbal (2009) 556 U.S. 662.

  • Martinez v. Joe's Crab Shack (California Court of Appeal, November 10, 2014) 2014 DJDAR 15078. Reversed the trial court's refusal to certify a class of restaurant managers claiming to have been misclassified as exempt to avoid being paid overtime. Also held that statistical sampling could be used to help prove liability, following the California Supreme Court's recent decision in Duran v. U.S. Bank National Association (2014) 59 Cal.4th 1.

  • Murphy Oil USA, Inc. and Sheila M. Hobson (NLRB, October 28, 2014) 10-CA-038804. The newly-reconstituted NLRB held that requiring employees to waive the right to pursue class actions as part of an arbitration agreement infringes on workers' right to engage in concerted protected activity. Murphy Oil revives the controversial 2012 holding of D.R. Horton, Inc.

Coming Next in the Labor and Employment Law Review

This month's issue of our Section's Labor and Employment Law Review features 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:

  • 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 lists some of the more notable newly-enacted laws that will affect employers and employees beginning next year.

  • Another round of legal battles about mandatory arbitration may soon erupt. Beginning January 1, 2015, AB 2617 prohibits requiring waiver of the right to pursue Civil Code §51.7 and §52.1 claims in court. Such claims can arise in the employment context. For example, a supervisor's harassment of an employee for refusal to submit to sexual advances was held to violate §51.7 in Ventura v. ABM Industries Inc. (2013) 212 Cal.App.4th 258. Employers are expected to assert that AB 2617 is preempted by the Federal Arbitration Act.

  • Claims for retaliation for opposing perceived employment discrimination continue to grow. The EEOC reported that the number of retaliation claims increased for the eighth year in a row, and were the most common claim filed for the fifth year in a row (exceeding even race discrimination claims). Many employees win retaliation claims even though they lose their underlying discrimination claims.

  • Employment lawyers would be well advised to pay careful attention to local employment law ordinances, which are increasing in number and importance. Effective July 1, 2015 most Los Angeles hotels with 300 or more rooms must pay at least $15.37 per hour (becoming applicable one year later to hotels with at least 125 rooms). Meanwhile, this month San Francisco enacted the Retail Workers Bill of Rights, which will give part time workers the right to more hours before new part-time employees are hired, mandate two weeks advance notice of work schedules, and provide two to four hours pay if a shift is cancelled with less than 24 hours notice.

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