Labor & Employment Law Blog

AALRR clients have recently had two published rulings by the National Labor Relations Board in which competing unions have disputed work assignments by construction contractors. Where either or both unions to a dispute picket or threaten to picket because of such a dispute, the NLRB can get involved. If the unions involved have not agreed to a different mechanism to resolve such disputes, the NLRB has the legal authority to make a final and binding award of the disputed work.

Awards of backpay in unfair labor practice cases are intended to make whole an employee who suffers a loss of earnings because of an unfair labor practice.  Because awards of backpay are typically limited to an employee's actual loss, an award of backpay is usually offset by any post termination earnings.

As we previously reported here, on May 20, 2010, by a unanimous decision in Martinez v. Corky N. Combs, the California Supreme Court clarified the standard courts must use to determine who is liable as an "employer" for violations of wage and hour laws embodied in Industrial Welfare Commission ("IWC") Wage Orders, including claims for unpaid or underpaid wages.  In that case, the plaintiffs sought to hold customers of the employer liable for their claims for allegedly unpaid wages. The trial court, the Court of Appeal, and the California Supreme Court all rejected the plaintiffs' arguments.

On June 1, 2010, the California Court of Appeal refused to enforce an arbitration agreement to require the arbitration of claims asserted against third parties who did not agree to arbitration. In Valencia v. Smyth, purchasers of real property sued their agent, the property owners and the owners’ broker and listing agent, and three additional parties (two title companies and the trustee of the deed of trust) for fraud, breach of fiduciary duty, negligence, and other claims arising out of the alleged misappropriation of the purchasers’ escrow funds.  The owners attempted to enforce an arbitration agreement entered into with the buyers in which they agreed to arbitrate “any dispute or claim in Law or Equity arising between them out of this Agreement or any resulting transaction,” which neither the title companies nor the trustee were parties to. The trial court had refused to enforce the agreement, and required that all parties be joined in a consolidated judicial proceeding, because the claims against the third parties arose out of the same transaction or series of related transactions and there was a “possibility of conflicting rulings on a common issue of law or fact.”

The issue of whether an employer's obligation to "provide" to non-exempt employees unpaid, duty free meal periods of at least 30 minutes means the employer must ensure that non-exempt employees actually take such meal periods or means the employer must merely make the meal periods available has been pending before the California Supreme Court since August 2008 when the court granted review of the Court of ...

Claims asserting violations of California's wage and hour laws are frequently if not predominantly brought as class actions. One of the most hotly litigated issues in such cases is the issue of whether the case should or should not be certified as a class, which nearly always turns on whether common issues of law and fact predominate over individual issues. Two recent Court of Appeal decisions emphasizing that plaintiffs seeking class certification carry the burden of showing that liability can be established based on common proof (i.e., proof applicable to all of the class members) may be helpful to employers opposing class certification.

On May 26, 2010, in Adolph v. Coastal Auto Sales, Inc., the California Court of Appeal affirmed the trial court's decision to deny the petition of a car dealer to compel arbitration in accordance with the terms of an arbitration agreement contained in a purchase agreement. The Court Appeal held that the trial court correctly denied the petition on the ground the car dealer waived its right to arbitrate by failing to promptly invoke its right to arbitration and by raising the arbitration agreement only after suffering a litigation setback in the pending litigation.

On May 11, 2010, the Internal Revenue Service, Department of Labor, and Department of Health and Human Services issued interim final rules regarding the extension of health coverage for adult dependent children until the age of 26. The rules provide guidance on how the Affordable Care Act provision regarding extended coverage to adult dependents affects health insurance plans and employers.

The Los Angeles Times reports here that the Immigration and Customs Enforcement ("ICE") agency, the largest investigative agency in the Department of Homeland Security ("DHS") is conducting a crackdown on employers that knowingly hire or retain undocumented workers. Alleged violators are being prosecuted in Federal court by the United States Attorney.

On May 17, 2010, in Guinn v. County of San Bernardino, the California Court of Appeal held that a a county probation officer who did not pass his probationary period after being promoted to a supervisory position was not entitled under the Public Safety Officers Procedural Bill of Rights Act to an administrative appeal of the County's decision to return him to his prior position.