Labor and Employment Law Section

News from the Section 

Message from the Chair from the September eNews

Michael E. Whitaker"Autumn seemed to arrive suddenly that year," wrote J.K. Rowling in Harry Potter and the Deathly Hallows. And so it seems this year.

It is once again the season when our Section's leadership changes. I have the honor of following in the footsteps of Carol Koenig, who has completed a very successful year as our Chair.

Under Carol's leadership, our Section revitalized our Annual Meeting so well that it drew record-breaking attendance and sold out. Many of the sessions are available online, along with over a hundred other continuing education courses. Just go to http://calbar.inreachce.com/ and click on "Labor and Employment Law."

The State Bar's Labor and Employment Law Section presents a cornucopia of continuing education in addition to our Annual Meeting, Annual Public Sector Conference, and Annual Advanced Wage and Hour Conference. Other offerings include live seminars, webinars, and online education.

Coming on October 8 at noon is a one-hour webinar on "Recent Developments in Retaliation and Whistleblower Law."

We are also pleased to present a live mock trial of a disability discrimination case, in both San Francisco and Los Angeles. The trial will include opening statements, direct and cross examination, and closing arguments before real Superior Court judges. The mock trial will be held in Los Angeles on November 18 and in San Francisco on November 20. Register early because seating is limited.

Your Labor and Employment Law Section is here to serve you, the labor and employment lawyers of California, and to provide quality education about the areas of law in which we practice. If you have ideas you'd like to share about anything more our Section should do, or how we can do what we do even better, please call or e-mail me. We are your Section. We are here for you.

Michael E. Whitaker
Section Chair

Quotes of the Month

  • "If you are out to describe the truth, leave elegance to the tailor." – Albert Einstein
  • "On Writing: 1. Find a subject you care about. 2. Do not ramble, though. 3. Keep it simple. 4. Have the guts to cut. 5. Sound like yourself. 6. Say what you mean to say. 7. Pity the readers." – Kurt Vonnegut
  • "A computer lets you make more mistakes faster than any other invention in human history, with the possible exception of handguns and tequila." – Mitch Ratcliffe

Upcoming Educational Programs

Litigating a Disability Discrimination CaseLitigating A Disability Discrimination Case - Trial Demonstration Seminar

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

This program offers 4.75 hours MCLE credit

Tuesday, November 18, 2014
Loyola Law School
919 Albany Street
Los Angeles, CA
REGISTER NOW


Thursday, November 20, 2014
The State Bar of California
180 Howard Street
San Francisco, CA
REGISTER NOW

For more information, see Litigating A Disability Discrimination Case.

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

  • Nearly all of California's employers will be required to provide employees at least three days of paid sick leave a year, beginning July 1, 2015. Paid sick leave can be used for an employee's own illness or the illness of a parent, child, sibling, spouse, grandparent or grandchild. AB 1522 will be known as the Healthy Workplaces, Healthy Families Act of 2014.
  • Governor Brown appealed a Los Angeles County Superior Court decision that 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.
  • President Obama issued an Executive Order 13673, which prohibits employers with federal contracts exceeding $1 million from mandating arbitration of Title VII claims and tort claims arising out of sexual assault or harassment. This comes on the heels of issuance of Executive Order 13672, which bars federal contractors from discriminating because of sexual orientation or gender identity.

This Month in Labor and Employment Law History

  • Patterson v. Domino's Pizza, LLC (California Supreme Court August 28, 2014) 2014 DJDAR 12005. By a 4-3 decision, the California Supreme Court held a franchisor was not liable for alleged sexual harassment by a franchisee's employee because the franchisor lacked authority to control the "hiring, direction, supervision, discipline, discharge and relevant day-to-day aspects of workplace behavior of the franchisee's employees."

  • Jimenex v. Allstate Insurance Company (9th Circuit, September 3, 2014) 2014 DJDAR 12219. The Ninth Circuit affirmed class certification of claims the employer had a practice or unofficial policy of requiring unpaid overtime work. The Court held that "statistical sampling and representative testimony are acceptable ways to determine liability so long as the use of these techniques is not expanded into the realm of damages."

  • Alexander v. FedEx Ground Package Systems, Inc. (9th Circuit, August 27, 2014) 2014 DJDAR 11877. The Ninth Circuit applied the "right to control" test to hold that Federal Express drivers were actually employees, not independent contractors, even though drivers owned their own trucks and could hire helpers.

  • Cochran v. Schwan's Home Service, Inc. (California Court of Appeal, August 12, 2014) 2014 DJDAR 10735. California Labor Code §2802 requires employers to reimburse employees who must use their personal cell phones for work.

Top Four Newly-Published Labor and Employment Cases

  • Patterson v. Domino's Pizza, LLC (California Supreme Court August 28, 2014) 2014 DJDAR 12005. By a 4-3 decision, the California Supreme Court held a franchisor was not liable for alleged sexual harassment by a franchisee's employee because the franchisor lacked authority to control the "hiring, direction, supervision, discipline, discharge and relevant day-to-day aspects of workplace behavior of the franchisee's employees."
  • Jimenex v. Allstate Insurance Company (9th Circuit, September 3, 2014) 2014 DJDAR 12219. The Ninth Circuit affirmed class certification of claims the employer had a practice or unofficial policy of requiring unpaid overtime work. The Court held that "statistical sampling and representative testimony are acceptable ways to determine liability so long as the use of these techniques is not expanded into the realm of damages."
  • Alexander v. FedEx Ground Package Systems, Inc. (9th Circuit, August 27, 2014) 2014 DJDAR 11877. The Ninth Circuit applied the "right to control" test to hold that Federal Express drivers were actually employees, not independent contractors, even though drivers owned their own trucks and could hire helpers.
  • Cochran v. Schwan's Home Service, Inc. (California Court of Appeal, August 12, 2014) 2014 DJDAR 10735. California Labor Code §2802 requires employers to reimburse employees who must use their personal cell phones for work.

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.

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

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 passes along advice from San Francisco Superior Court Judges.

  • "Once again, we learn the regrettable lesson that the basic information we require to resolve a controversy is not always found in the parties' briefs, but in the ungilded record itself. A good rule in this business is to verify before you trust. Lawyers would be well advised not to elide the truth, the whole truth, and nothing but the truth." Alexander v. FedEx Ground Package Systems, Inc. (9th Circuit, August 27, 2014) 2014 DJDAR 11877.

  • "A trial court is empowered to exercise its supervisory power in such a manner as to provide for the orderly conduct of the court's business and to guard against inept procedures and unnecessary indulgences which would tend to hinder, hamper, or delay the conduct and dispatch of its proceedings...." Mungo v. UTA French Airlines (1985) 166 Cal. App.3d 327, 333.

  • "When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two." Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.

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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