Labor and Employment Law Section

News from the Section 

Message from the Chair from the June eNews

Section Chair Carol Koenig As summer winds down, we are pleased to be sending you the fourth issue of our monthly eNews – a project the Section launched in late May just as summer was just beginning. Time certainly does fly! As usual, the eNews includes a brief summary of the latest Labor & Employment Law cases, short announcements of our upcoming programs, some interesting historical facts about labor and employment law and a few pithy quotes. Of particular interest might be the brief summary of what the NLRB has been doing with its rulings that were "tossed out" by the U.S. Supreme Court's decision nullifying President Obama's recess appointments to the National Labor Relations Board.

Also, those of you in the San Francisco Bay Area might want to tune into the Your Legal Rights radio program on August 27, 7-8 p.m. to hear Bryan Schwartz and Tom Geldt discuss wage and hour issues, including overtime, meal and rest breaks, unpaid interns and employees mislabeled as independent contractors. Those of you not in the Bay Area can tune into the program via the internet at www.kalw.org.

Finally, I want to remind you to let us know if any of you who practice in the public sector are interested in participating in the planned major update of the Section's California Public Sector Labor Relations book published by Lexis-Nexis. If you are, please contact me at ckoenig@wmprlaw.com.

Carol Koenig
Section Chair
ckoenig@wmprlaw.com

Quotes of the Month

  • "People who work sitting down get paid more than people who work standing up." -- Ogden Nash
  • "By working faithfully eight hours a day, you may eventually get to be boss and work twelve hours a day." -- Robert Frost
  • "If hard work were such a wonderful thing, surely the rich would have kept it all to themselves." -- Lane Kirkland

Upcoming Educational Programs

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

Pre-Registration is now closed, but onsite registration will be available. You can speed up the process by printing out and completing the Registration Form prior to arrival.  Registration will be in the Grand Hyatt San Diego, Harbor Ballroom Foyer (2nd floor), beginning at 9 a.m. on Thursday, September 11 and continuing during registration hours below.

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

  • Brinker Restaurants agreed to pay an amount not to exceed $56.5 million to settle the class action claims against it that were the subject of the seminal California Supreme Court meal and rest break decision, Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004.

  • The NLRB’s General Counsel ruled that McDonald’s is a joint employer of its franchisees’ employees, and therefore jointly liable for labor law violations. The employees pursuing the charges seek to unionize.

  • The NLRB ratified numerous administrative, personnel and procurement decisions previously voted on between January 2012 and August 2013. The United States Supreme Court held the Board lacked a quorum then because of unconstitutional
    recess appointments. The NLRB says it still has to revisit about a 100 cases decided during that same time period.

This Month in Labor and Employment Law History

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

  • August 4, 1988 -- The Worker Adjustment and Retraining Act ("WARN") was signed into law, prompted by increasing closure of American manufacturing plants. It was followed 15 years later by Cal-WARN.

  • August 19, 1916 -- Strike breakers attacked picketers at Everett Mills. The violence culminated months later in the killing of seven workers and wounding of 50 in what became known as the Everett Massacre or Bloody Sunday.

  • August 27, 1950 -- President Truman orders the army to seize all of America's railroads to prevent a general strike. The railroads would not be returned to their owners for two years.

California Supreme Court: New Labor and Employment Decisions

  • Peabody v. Time Warner Cable, Inc. (California Supreme Court, July 14, 2014) 2014 DJDAR 9203. Commissioned employees are exempt from overtime pay only in those pay periods when they are paid 1-1/2 times minimum wage. Employers may not average more than one pay period to avoid paying overtime.

  • People v. Pac Anchor Transportation, Inc. (California Supreme Court, July 28, 2014) 2014 DJDAR 9863. California's employment laws governing truck drivers are not preempted by the Federal Aviation Administration Authorization Act of 1994 (the FAAAA). The Ninth Circuit reached same conclusion weeks earlier. Dilts v. Penske Logistics, LLC (9th Cir., July 9, 2014) 2014 DJDAR 9006.

  • Gregory v. Cott (California Supreme Court, August 4, 2014) 2014 DJDAR ____. Patients with Alzheimer's disease are not liable for injuring home health caregivers unless caregivers are not warned of a known risk, defendants otherwise increase the level of risk beyond that inherent in providing care, or the injury's cause is unrelated to symptoms of the disease.

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

  • Rebolledo v. Tilly's, Inc. (California Court of Appeal, July 8, 2014) 2014 DJDAR ____. An agreement excluding from mandatory arbitration any matters "governed by" or "within the jurisdiction of" the California Labor Commissioner exempted statutory wage claims pursued only as a class action in Superior Court because they could have been brought before the Labor Commissioner.

  • Rhea v. General Atomics (California Court of appeal, July 21, 2014) 2014 DJDAR 9469. Employers may deduct partial-day absences from exempt employees' annual leave balances if the policy so provided before the leave was earned. The decision affirmed the holding of Conley v. Pacific Gas & Electric Co. (2005) 131 Cal.App.4th 260, 263.

  • DeYoung v. Commission on Professional Competence (California Court of Appeal, July 30, 2014) 2014 DJDAR ___. Failure to prepare written charges before, instead of after, initiating a teacher's discharge was a nonsubstantive procedural error that does not warrant setting aside the termination.

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 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

  • August 27, 2014, 7-8 p.m. Wage and Hour Issues, including overtime, meal and rest breaks, employees mislabeled as independent contractors, and unpaid interns, with speakers Bryan Schwartz and Tom Geidt.

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.

  • "Don't flinch, don't foul, and hit the line hard." -- Theodore Roosevelt

  • If an opposing counsel or party acts rudely or despicably, do not respond in kind. "To answer brutality with brutality is to admit one's moral and intellectual bankruptcy." -- Mahatma Gandhi

  • "The best index to a person's character is (a) how he treats people who can't do him any good, and (b) how he treats people who can't fight back." -- Abigail Van Buren

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