Labor and Employment Law Section

News from the Section 

Message from the Chair

Michael E. WhitakerEight hundred years ago this month, King John of England and a group of rebel barons signed the Magna Carta. Although this charter only limited the King's power with respect to barons and other "freemen" (about a sixth of the population), it became a broader symbol of limitations on the rights of those in power.

In our country, the Magna Carta served as an inspiration for the United States Constitution and its Bill of Rights.

Later, a number of labor and employment statutes have been referred to as Magna Cartas. Samuel Gompers referred to the Clayton Antitrust Act of 1914 as "Labor's Magna Carta" because it ended the characterization of labor unions as antitrust conspiracies.

The 1915 Seaman's Act, enacted the next year, has been called "the Magna Carta of sailors' rights."

William Green and John L. Lewis called the 1935 Wagner Act, also known as the National Labor Relations Act, the "Magna Carta of Labor." On the flip side, the National Right to Work Committee has proposed a Constitutional amendment that it refers to as the "Right to Work Magna Carta."

Our legal system includes many groups of checks and balances, not least in the field of labor and employment law. These can trace one part of their origin back 800 years to the Magna Carta.

Michael E. Whitaker
Los Angeles

Webinar: Employment Law 101 For Small Businesses

Friday, August 14, 2015, 12 noon- 1 p.m.

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

Small employers often lack resources, yet they are expected to fully comply with applicable employment laws. This fast-paced webinar is designed to help small businesses issue spot common issues concerning employee hiring, wage and hour requirements, and EEO compliance, among others.

Speaker: Cara Ching-Senaha, Moscone Emblidge & Otis LLP

Webinar: Labor Law for Employment Lawyers

Wednesday, November 18, 12 noon- 1:15 p.m.

This program offers 1.25 hour participatory MCLE credit. You must register in advance in order to participate.

This webinar will provide an introduction to labor law principles through examination of the most common types of unfair labor practice claims. Our presenters will discuss the elements of each type of claim, available defenses, and the factual scenarios in which these claims arise.

Speaker:

  • Joseph L Paller, Jr., Gilbert & Sackman
  • Erich Shiners, Renne Sloan Holtzman Sakai

Quotes of the Month

  • "No one with absolute power can be trusted to give it up even in part." - Justice Louis D. Brandeis
  • "Anybody who's worth her salt has to fight for her rights once in a while or get shoved around." - Ethel Merman
  • "Failure is impossible." - Susan B. Anthony

This Month in Labor and Employment Law News

  • The federal Department of Labor proposed a regulation to increase the earnings below which workers must be paid overtime from $23,660 to $50,440 a year. The change is expected to go into effect next year. The new federal threshold would trump California's 2016 threshold of $41,600. Labor Code §515(a), (c).
  • In a non-precedential decision, the California Labor Commission ruled that an Uber driver had been misclassified as an independent contractor, but was actually an employee. There are a number of significant cases proceeding that challenge the classification of workers as independent contracts, so stay tuned.
  • Recently unsealed court documents reveal that American Apparel lost over $4.5 million in arbitration for claims by three women that they were sexually harassed. The women were represented by Toni Jaramilla, past Chair of the State Bar's Labor and Employment Law Section.

This Month in Labor and Employment Law History

  • June 2, 1980: California Supreme Court holds employees may sue for discharge in violation of public policy. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167
  • June 10, 1963: Equal Pay Act of 1963 signed into law
  • June 20, 1941: Henry Ford recognizes the United Auto Workers

Top Three Newly-Published Labor and Employment Cases

  • EEOC v. Abercrombie & Fitch Stores (United States Supreme Court, June 1, 2015) 2015 DJDAT 5910. An employer must accommodate a religious practice, in this case wearing of a head scarf, whether the employer has "actual knowledge" of the religious reason for the practice, "a well-founded suspicion or merely a hunch."
  • Williams v. Superior Court (California Court of Appeal, June 9, 2015) 2015 DJDAR 6365. Representative PAGA claims may not be ordered to arbitration, even though the employee could have opted out of the pre-dispute arbitration agreement as to representative claims.
  • Orgel v. Pacpizza, LLC (California Court of Appeal, June 3, 2015) 2015 DJDAR 6007. The Court held the employer waived its right to arbitrate because it used court procedures for its benefit and unduly delayed moving to compel arbitration.

News From the Labor and Employment Law Review

The July issue of our Section's Labor and Employment Law Review features the following:

  • Two articles on the California Supreme Court's recent decision in Williams v. Chino Valley Independent Fire District, with Norm Pine and David M. deRubertis writing about the employee's perspective, and Judith S. Islas writing about the employer's perspective;
  • Two articles on the California Supreme Court's decision in Mendiola v. CPS Security Solutions, Inc., with Cathe L. Caraway-Howard and Miles E. Locker writing about the employee's perspective, and Howard M. Knee and Jim Newman writing about the employer's perspective; and
  • An article about the U.S. Supreme Court's decision in Young v. United Parcel Service, Inc., titled "United States Supreme Court Creates New Test for Individual Disparate Treatment Cases," by Cara Ching-Senaha and Patricia A. Murphy.

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.

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.

The most recent labor and employment program was presented on June 24. The very timely topic was same sex marriage and employee benefit issues, with guests Clarissa A. Kang (Trucker Huss, APC in San Francisco) and Julie Hayden Wilensky (Lewis Feinberg in Oakland)

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.

Reminder - Labor and Employment Members Are Invited to Complete a Cooperative Law Survey by August 14, 2015

The Executive Committee of the Labor and Employment Law Section has launched a Cooperative Law subcommittee.  The purpose of the subcommittee is to evaluate the practice and to propose improvements that promote attorney civility, professionalism, efficiency, legal access and satisfaction.  Surveys may be accessed on the members-only webpage HERE, by August 14, 2015. 

Sign in is required, as follows:  (1) Click on “My State Bar Profile”; (2) Enter your log in credentials; (3) After successful log in, scroll down to “Sections” and select “Members Only Website” for the Labor & Employment Section; and (4) Click on the live surveymonkey link, which will take you directly to the Member survey. 

Section members who return a completed survey by the deadline may separately request entry in a random drawing.  Restrictions and exclusions apply, see the survey for details.

Practice Tips

This month, Practice Tips offers a quote from a published case to illustrate how vivid legal writing can capture the reader's attention:

"Cautionary tales rarely have happy endings. From the 19th Century German classic, 'The Dreadful Story of Pauline and the Matches,' in which the fate of the child heroine can be deduced from the title, to the more familiar Thirties cult film, 'Reefer Madness,' the protagonist almost never does well in them. This case is no exception. We present here a cautionary tale, published, like all of its ilk, in the hope of providing a warning." Engle v. Copenbarger and Copenbarger (2007) 157 Cal.App.4th 165.

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:

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. 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:

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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