Labor & Employment Law Blog

On June 21, 2011, the United States Department of Labor, Office of Labor-Management Standards, issued a little-known Notice of Proposed Rulemaking whereby the DOL seeks to expand the scope of and requirements of the Labor Management Reporting and Disclosure Act of 1959 (29.U.S.C. 433). The proposed rule reverses long-standing practices under the law and subjects employers and those who provide advice to employers regarding union activities, such as attorneys and labor consultants, to increased reporting requirements. The public comment period ends on September 21, 2011, and the new rule is expected to be adopted shortly thereafter. The proposed rule has been viewed by some in the business community as a political favor for unions designed to enhance their ability to unionize employees.  A copy of the proposed rule and the opportunity to submit comments can be viewed by clicking here.  

Last Thursday, President Obama addressed a joint session of Congress and announced his American Jobs Act. On Monday, President Obama formerly presented the Bill to Congress.  Among the provisions included the 155-page Bill but which the President did not announce in his speech last week is the "Fair Employment Opportunity Act of 2011". This law, if passed, would make it an unlawful discrimination practice for an employer to deny employment (i.e., decline to hire) an individual on account of the applicant's unemployment.  In short, President Obama's proposed law would make being unemployed a protected class on par with other protected classes such as race, color, religion, national original, age, and sex. Specifically, Section 374 of the Americans Jobs Act makes it unlawful for employers to:   

In a press released issued today, the California Department of Fair Employment and Housing touts an administrative award of $846,300 against an employer for allegedly failing to accommodate an employee's medical condition and for allegedly terminating the employee "relying on [an] insufficient travel pretext." The DFEH press release states as follows:

As we previously reported here, there was little doubt Governor Jerry Brown's appointment of UC Berkeley law professor Goodwin Liu to the California Supreme Court would be swiftly confirmed by the California Commission on Judicial Appointments, consisting of three members:  California Supreme Court Presiding Justice Tani Cantil-Sakauye (appointed by former Governor Arnold Schwarzenegger), California Attorney General Kamala Harris (a Democrat elected in 2010 after serving as the District Attorney for the City and County of San Francisco), and Senior Presiding Justice of the California Court of Appeal  Joan Dempsey Klein (appointed by Governor Brown during his first term as Governor of California).  

Over ten years ago, in Earley v. Superior Court (2000) 79 Cal.App.4th 1420, the California Court of Appeal held that employers who defeat claims for allegedly unpaid overtime wages or minimum wages are not entitled to recover their attorneys fees. The court reasoned that Labor Code section 1194 is a one-way attorney's fees statute that permits prevailing employees but not prevailing employers to recover their attorney's fees. In that case, the court further held that permitting prevailing employers to recover their attorney's fees would be contrary to public policy in that it would have a chilling effect on the right of employees to sue for allegedly unpaid overtime wages or minimum wages. 

As we previously reported here, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.  

As we previously reported here, the California Court of Appeals decided in Brinker Restaurant Corporation v. Superior Court that an employer's obligation to "provide" to non-exempt employees meal periods required by the Labor Code and the applicable Industrial Welfare Commission Wage Orders is to make those meal periods available and not to ensure that employees take the meal periods provided to them.  

Employment litigation often gives rise to discovery demands by the plaintiff(s) seeking information about the employer's other current and former employees who are not parties to the litigation and, often, employment records of such non-party employees. This occurs in both class action cases and in non-class action cases. In many cases, such discovery demands are little more than thinly disguised fishing expeditions at the employer's expense. Although existing case law recognizes the privacy rights of non-party current and former employees and generally requires courts to balance those privacy rights against the legitimate discovery needs of plaintiffs in employment cases and to employ certain safeguards, those laws are not always consistently applied by trial courts.

In Zullo v. Superior Court, the California Court of Appeal once again struck down an employer-employee arbitration agreement based on the court's conclusion that the arbitration agreement was both procedurally and substantively unconscionable and therefore unenforceable. The decision serves as a reminder to employers that arbitration provisions considered to be overly one-sided in favor of the employer are likely to be struck down by California courts.

Today, the California Court of Appeal held in Brown v. Ralph's Grocery Company that the decision of the trial court denying enforcement of a class action waiver contained in an arbitration agreement between Ralph's Grocery Company and its employees was not supported by substantial evidence but held, also, that a provision of that arbitration agreement barring employees from pursuing claims under the California Labor Code Private Attorneys General Act of 2004 ("PAGA") is unenforceable because, according to that court, the recent decision of  Supreme Court of the United States in AT&T Mobility v. Concepcion, previously discussed here, does not apply to representative actions brought under PAGA. Further, the Court of Appeal remanded the case back to the trial court for a determination of whether the arbitration agreement is enforceable except for the PAGA waiver or is unenforceable in its entirety because of the PAGA waiver.