Labor and Employment Law Section

News from the Section 

Message from the Chair

The legislature is poised to enact legislation that will place the Labor and Employment Law Section and other Bar sections into a new, non-profit organization to continue the educational programming and other services the Sections have provided their members for decades. When this happens, our Section will maintain its special relationship with the Bar, but there may be some other changes in how things are run. We did not ask for this separation of the Bar’s educational functions from its regulatory functions, but we hope the changes will only be improvements.

What will not change is your Section leadership’s commitment to deliver the best educational programming for California’s labor and employment lawyers, and to build a network of professionals from both sides of the Bar engaging in an open dialogue about the fairest and most effective ways to regulate California workplaces. We will continue efforts to build mentorship, pro bono, and diversity programs, and to effect changes in the courts that promote a more cooperative model of problem-solving in our cases.

I am personally very proud to be delivering another excellent Public Sector Conference against next month, notwithstanding all of the strong currents pulling the Section and our 7,500 members in different directions, based upon state and national politics. With the tumultuous seas, we had to work very hard to keep the ship sailing, making sure that we could host it again at the beautiful Claremont in Berkeley, and ensuring that our programming will be as strong this year as ever. But, we have done it! Do not miss the terrific program on April 21st, or the other great programming we have in store the rest of the year.

-- Bryan Schwartz, Chair

Labor and Employment Law Section Grants

Deadline for 2017-2018 grant cycle: July 3, 2017

The Labor and Employment Law Section provides grants that:

  1. To educate practitioners of all backgrounds in the practice of labor and employment law;

  2. To promote persons of diverse backgrounds in the population of practitioners in the area of employment or labor law; or

  3. To educate the general public about labor and employment law.

Funding for each requested project or event shall generally be limited to a maximum of $5,000 in a calendar year. See Labor and Employment Law Section Grants for more information.

Webinar: Winning and Healthier Strategies for Dealing with Bullies and Unreasonable People in the Litigation Context

Wednesday, April 26, 2017, 12 noon - 1:30 p.m.

This program offers 1.5 hours participatory credit in Competency Issues. You must register in advance to participate.

Experienced litigators will provide practical advice regarding how litigators can approach highly contentious situations effectively and in accordance with the Rules of Professional Conduct.  Their experience and techniques will be of assistance to litigators, particularly to those who are just starting out in their practice to manage those situations calmly and with confidence.  This will be of interest to those who find themselves emotionally impacted by contentious and dramatic interactions with opposing counsel, clients and/or judges.  Psychological perspective on the techniques used by bullies and those attempting to exert undue authority, as well as methods for the person being bullied to learn how manage the situation in a psychologically healthy manner will also be provided.  All of these techniques will allow the litigator to be effective, objective and calm in the face of aggressive and unreasonable behavior, and thereby, able to act in his/her client’s best interest.

Moderator: Nancy Pritikin
Speakers: Dr. Paul Berg and Lindbergh Porter

Save the Dates! Labor Annual Meeting and Wage and Hour Conference

This year the combined 34th Labor & Employment Law Annual Meeting and 7th Annual Advanced Wage and Hour Conference be held Thursday-Friday, July 13-14, 2017 at the Hyatt Regency Los Angeles Airport. Save the dates and stay tuned for more information!

Quotes of the Month

  • “Would you tell me, please, which way I ought to go from here?” “That depends a good deal on where you want to get to.” – Lewis Carroll, Alice in Wonderland

  • “Even if you are on the right track, you will get run over if you just stand there.” – Will Rogers

  • “Everyone has a plan until they get punched in the mouth.” – Mike Tyson

This Month in Labor and Employment Law News

  • United States Secretary of Labor nominee Andrew Puzder withdrew from consideration. Puzder was Chair of the company that owns Hardee’s and Carl’s Jr. Opponents complained of alleged wage and hour violations by franchisees and of Puzder’s employment of an undocumented household employee. New nominee Alexander Acosta previously served on the NLRB and represented employers at Kirkland & Ellis.

  • California’s Employment Development Department reported that 2016 annual job growth was 2.63% and that the year ended with 5.2% unemployment. However, labor force participation has declined in recent years and unemployment remains high in many non-metropolitan counties.

  • BNA quoted a California management lawyer’s prediction that impending reduction of Federal regulation of employment will be “creating the effect of the ‘Californization’ of state laws as the feds pull back.” California’s state and local employment laws have often served as models for other states.

This Month in Labor and Employment Law History

  • March 8, 1971: United States Supreme Court held that Title VII prohibits employment decisions which have a disparate impact on protected groups. Griggs v. Duke Power Co. (1971) 401 U.S. 424.

  • March 23, 2010: The Patient Protection and Affordable Care Act (better known as Obamacare) was enacted. The ACA reduced the number of Americans lacking health insurance by 43%. It has also provided a continuing subject for opinion pieces, news articles, political campaigns and proposed repeal legislation.

  • March 25, 1911: The Triangle Shirtwaist Fire killed 146 of the 500 workers, who were trapped in the factory because its owners had locked the fire escape exit doors. The Occupational Safety and Health Act was enacted 59 years later.

Top Newly-Published Labor and Employment Cases

  • Zetwick v. County of Yolo (Ninth Circuit, Case No. 14-17341, February 23, 2017). Unwanted and pervasive hugs by a supervisor – in this case, over a hundred hugs over twelve years – can create a hostile work environment. Reversing summary judgment, the Court also ruled that evidence the supervisor hugged women more often than men was admissible.

  • Vaquero v. Stoneledge Furniture (California Court of Appeal, Case No. B269567, February 28, 2017). Employees paid a guaranteed minimum draw against future commissions or piece work compensation must be separately compensated for rest periods (and other “nonproductive” time such as time spent in company meetings and training sessions).

  • Atkins v. City of Los Angeles (Case No. B257890, California Court of Appeal, February 14, 2017). Probationary employees who could not perform the essential functions of their jobs without accommodations properly prevailed on their Government Code §12940(m) claims for failure to reasonably accommodate. Awards of 25 to 33 years of future lost earnings to young employees with no more than 18 weeks of tenure were set aside as speculative.

News From the Labor and Employment Law Review

The March issue of our Section’s Labor & Employment Law Review will feature an article by Lara C. de Leon and Christopher Olmsted on “California’s Fair Pay Act.”  Joel Grossman also contributes an article on the recent Ninth Circuit decision in Poublon v. C.H. Robinson Co., entitled “Severing Unconscionable Arbitration Provisions.”

Look for both, as well as our regular case law updates from our outstanding columnists.

Submissions are always 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 Program

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. The show is also uploaded to the National Public Radio Satellite for national distribution. Our Section sponsors programs on labor and employment law. Here’s what’s coming up next:
  • March 15, 2017, 7-8 p.m., Immigration Issues in the Workplace, with Chris Ho of Legal Aid at Work (formerly known as the Employment Law Center) and Jay Rosenlieb of Klein DeNatale and Goldner.

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 reminds readers of some often-overlooked resources for researching California employment law.

  • California’s Fair Employment and Housing Council has been diligently and systematically enacting new FEHA regulations over the last few years. The regulations are a ready source of guidance, and are legal authority that is often persuasive.

  • CACI jury instructions succinctly lay out the essential elements of most causes of action and address many commonly faced legal issues. They are updated twice a year. Each instruction is followed by a “Sources and Authorities” section that cites and discusses leading cases.

  • The legislative history of California statutes and amendments to them, enacted or considered from 1999 to present, is available online from the State of California. Not only is this history useful in demonstrating legislative intent, but the “Bill Analysis” reports often include discussion of leading cases.

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:

Thank You for Being a Section Member - Here's 6 Hours MCLE in Legal Ethics!

We're very grateful for your membership in the Section. As a token of that, we're offering six hours of self-study MCLE credit in the area of Legal Ethics. The programs are posted in our Member's Only Area.

Simply watch the programs and read the accompanying materials, and keep track of having done so. You can report this to the State Bar when it's time to demonstrate your compliance with the MCLE requirements.

Case Law Alerts

Have you signed up to receive Labor Case Alerts? These case summaries are being sent to you by the Labor and Employment 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.

In addition, the Section has a presence on the LinkedIn group for The Sections and the California Young Lawyers Association (CYLA).

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

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