Labor and Employment Law Section

News from the Section 

Message from the Chair

As I write this I have just returned from out 6th Annual Advanced Wage & Hour conference in Los Angeles, ably organized by Chair Chaya Mandelbaum and Vice-Chair Monica Guizar and well received by all. A highlight, for me, was hearing the keynote address by Los Angeles County Supervisor Hilda L. Solis, the former United States Secretary of Labor. Supervisor Solis spoke passionately about the number of low wage workers in Los Angeles County and her efforts to provide them with education about their rights - something our committee may be able to assist with.

Our next live programming will be at the 2016 State Bar Annual Meeting in San Diego at the end of September. Our committee will be presenting four programs:

  • Getting to Yes: Advanced Tips on Effective Settling/Mediating Your Labor & Employment Cases;
  • Across the Divide: Building Cultural Competency and Combatting Bias;
  • The Watch List: Pending U.S. and California Supreme Court Employment Law Cases; and
  • Representative Actions Under the California Labor Code Private Attorneys General Act.

I hope to see many of you at the State Bar Meeting and hope you will be able to attend our programming there.

— Amy Oppenheimer, Chair

The State Bar of California 89th Annual Meeting

My Annual MeetingThe State Bar of California 89th Annual Meeting
September 29 - October 2, 2016
Marriott Marquis San Diego Marina

San Diego, California

Early Bird Pre-Regsitration and Hotel Registration Deadline: August 30, 2016 
Pre-Registration Deadline: September 8, 2016

The State Bar of California returns to beautiful San Diego for the 2016 Annual Meeting. The Annual Meeting is a multi-day showcase of continuing legal education courses, celebrity speakers, and noted legal scholars. Each day gives you several choices of courses and special events.

The Annual Meeting registration fee is structured to make it affordable to attend. You can select either a Full Meeting Pass or a 2-Day Pass. Special fees are available for Young Lawyers and New Admittees.

Register by August 30, 2016 to take advantage of preferred pricing. Your registration includes:

  • 111 MCLE courses 
  • Up to 19 Hours of MCLE and Legal Specialization credit 
  • Dynamic Opening Day and Closing Day General Sessions 
  • Free Networking Lunch, Morning Coffee Breaks and Evening Happy Hours in the Exhibit Hall 
  • Social events hosted by the State Bar and its various Sections, local bar associations and law school alumni groups

The Section will be presenting:

Program 5

Getting to Yes: Advanced Tips on Effective Settling / Mediating Your Labor & Employment Cases

Program 16

Across the Divide: Building Cultural Competency and Combatting Bias

Program 58

The Watch List: Pending U.S. and California Supreme Court Employment Law Cases

Program 68

Representative Actions Under the California Labor Code Private Attorneys General Act

You can REGISTER ONLINE until September 8. For full information, see The State Bar of California 89th Annual Meeting.

Webinar: Pay Equity Demystified: Practical Legal and Statistical Considerations

Tuesday, November 8, 2016, 10:30 a.m. - 11:30 a.m.

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

This program is a non-technical discussion of the legal and statistical considerations bearing on pay equity claims under federal and California law, including issues and challenges regarding how to properly identify and measure pay disparities.  Topics covered will include:

  1. The current legal and regulatory landscape of pay equity under federal and California law – from the point of view of both an employee-side and management-side attorney
  2. A non-technical primer on the role of data
  3. Hypothetical case study of a pay equity charge, employer response, and the role of a labor economist
  4. Best practices for employers conducting proactive compensation assessments

Speakers: Lori E. Andrus, Kathryn G. Mantoan and Paul F. White

Quotes of the Month

  • “Too often we judge other groups by their worst examples, while judging ourselves by our best intentions.” – George W. Bush (spoken at the July 2016 memorial service for five police officers murdered in Dallas)

  • “Evils which are patiently endured when they seem inevitable become intolerable when once the idea of escape from them is suggested.” – Alexis de Toqueville

  • “If you stick a knife in my back nine inches and pull it back six inches, there’s no progress. You pull it all the way out, there’s no progress. Progress is healing the wound.” – Malcolm X

This Month in Labor and Employment Law News

  • California’s newly-enacted 2016-2017 budget provides more money to investigate alleged employment law violations and to enforce California’s employment laws:
    • The DFEH will have 28 additional employees to investigate complaints (and respond to public record requests);
    • The DFEH will have funds to replace the DFEH’s current (and much criticized) Case Management System, Houdini;
    • Ten new positions have been added (mostly to the Department of Industrial Relations) to investigate PAGA
      claims and intervene when appropriate; and The DLSE will have 28.5 more employees for its Wage Claim Adjudication and Retaliation Complaints
      Investigation Units.

  • More than 40,000 AT&T Wireless union-represented workers rejected the proposed collective bargaining agreement covering benefits, including health care benefits. The union and employer have reopened negotiations to try to avoid a strike. Verizon employees returned from a seven-week strike several months ago.

  • United States District Court Judge Andrew J. Guilford criticized a wrongful termination complaint against Newport Beach as “largely incoherent,” “often nonsensical,” a “jigsaw puzzle,” a “shotgun” pleading, and "stream-of-conscience ramblings.” The June 30, 2016 order granted the employee leave to amend, but said the Court was “suspicious” that granting leave to amend will be “futile.”

This Month in Labor and Employment Law History

  • August 4, 1988: Worker Adjustment and Retraining Notification Act (“WARN”) is signed, requiring employers to give advance notice of mass layoffs

  • August 14, 1935: Social Security Act is signed into law, providing for income to retirees funded by taxes paid half by employers and half by employees, and establishing unemployment insurance nationwide

  • August 28, 1963: Martin Luther King, Jr. gives his “I Have a Dream” speech during the March on Washington.

Top Three Newly-Published Labor and Employment Cases

  • Fisher v. University of Texas at Austin (U.S. Supreme Court, Case 14–981, June 23, 2016). The Court held that a quest for student diversity can be a compelling reason for affirmative action in college admissions. The decision will likely be cited in employment cases.

  • Friedrichs v. California Teachers Association (United States Supreme Court, Case 14-915, June 28, 2016). In a 4-4 split, the United States Supreme Court affirmed a Ninth Circuit decision that requiring California public school teachers to pay union fees does not violate the First Amendment. The Court has now denied > the petition for rehearing.

  • Moore v. Regents of the University of California (California Court of Appeal Case D067120, ordered published June 20, 2016). The Court reversed summary judgment of a disability discrimination layoff case, stating along the way that “issues of intent and motive are typically not appropriate for disposition on summary judgment.”

News From the Labor and Employment Law Review

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.

The September issue of our Section’s Labor and Employment Law Review will feature an article by D. Jan Duffy and Emily Stehr entitled “New FEHA Regulations Advance the Standard of Care for Prevention and Correction of Sexual Harassment in the Workplace.” Look for that as well as our regular case law updates from our outstanding columnists.

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:

  • August 31, 2016, 7‑8 p.m., Overtime Pay and Minimum Wage: How They Work and What’s New, with Samson Elsbernd and Alan Cohen

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

  • Practitioners will now be able to cite published California Court of Appeal cases even after the California Supreme Court grants review, unless the case is specifically ordered depublished. The new rule applies to cases where review is granted on or after July 1, 2016. California Rules of Court, Rule 8.1105(e)(1)(B).

  • Employees may once again form bargaining units, without permission from the employer, that include both people employed only by the “user employer” and those jointly employed by a labor supplier. Miller & Anderson, Inc. and Tradesmen International (NLRB Case 05-RC-079249, July 11, 2016), reversing a 2004 decision that reversed a 2000 decision.

  • With the hiring of many more DFEH and DSLE investigators (see “This Month’s Labor and Employment News,” above), practitioners should consider how they might better use these administrative agencies to resolve FEHA and wage and hour claims.

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:

SB 836 Amendments to Labor Code Private Attorneys General Act (PAGA) Effective June 27, 2016

The budget signed by the Governor includes changes to the state’s Private Attorneys General Act (PAGA), including court review of settlements, filing fees, and resources to review and take cases, and online filing.  These changes are part of an oversight effort to give the state better data on filing. These changes affect attorneys!

SB 836, which became effective on June 27, 2016, made important changes in PAGA requirements.  Except as otherwise noted, these requirements apply prospectively to all pending PAGA cases as well as new filings.

The Labor and Workforce Development Agency has a new webpage available which includes initial information on the changes and will be updated as the program evolves.   Read all the new requirements HERE.

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