The Fair Employment and Housing Act, Government Code sections 12900 et seq. (FEHA), prohibits an employer from firing a worker in retaliation for the worker’s complaining about incidents of sexual harassment in the workplace. (Gov. Code, § 12940, subds. (h), (j).) An employer can defeat such a claim by showing that it acted not in response to the worker’s complaints but for legitimate, nonretaliatory reasons. This case presents the question whether an employer may be liable for retaliatory discharge when the supervisor who initiates disciplinary proceedings acts with retaliatory animus, but the cause for discipline is separately investigated and the ultimate decision to discharge the plaintiff is made by a manager with no knowledge that the worker has engaged in protected activities. We hold that so long as the supervisor’s retaliatory motive was an actuating, but-for cause of the dismissal, the employer may be liable for retaliatory discharge.

Summary Judgment in favor of defendant REVERSED.

The changes to the “Sue your boss” law have passed the Legislature as part of the budget deal. It will take effect immediately upon the Gov’s signature, which is expected tomorrow. CLEL will break down the changes next week.

• The Sacramento Bee has a report on the effect of the SB 769(aka “Sue Your Boss” or “Bounty Hunter” statute) compromise in the budget (which has passed the Assembly).

The compromise forbids employees from filing lawsuits against companies that do not post signs explaining workers’ rights. The exceptions are posters regarding payroll and worker-injury laws.
For more serious problems, including violations of the wage and hour laws, a worker can still sue - but the employer is given a grace period to fix the problem first. The worker must inform the employer and the state of the problem, and if nothing’s done, the worker can go to court. Depending on the type of violation, the grace period can last 150 days, Dunn said.

According to the report, this is a version of Dunn’s own amendment to SB 769, SB 1809.

• The San Jose Mercury news reports less than half the anticipated number of workers have taken advantage of the Family Leave Act.

• Ralph’s apparently hired back some of its striking workers during the strike, the OC Register reports.

The allegations were first raised by the United Food and Commercial Workers union, which sued Ralphs in January, alleging that the company had illegally rehired more than 200 employees under false names and Social Security numbers after the workers were locked out in October.
Ralphs later confirmed that it was cooperating with a U.S. Justice Department probe of the allegations and that a federal grand jury had been convened to hear them.
The union’s suit was dropped as part of the February settlement that ended the lockout. However, a National Labor Relations Board inquiry into the allegations is continuing.

The fallout from the grocery strike continues…

AB 3051, relating to workers’ compensation and death benefits for firefighters is up for a second reading after being approved in one committee.

SB 1521, the Displaced Janitor Opportunity Act, vetoed by the Governor, is up for override in the Senate, if they get to it.

Nothing else significant to report in the news this morning.

The Court of Appeal (6th Dist.) handed down a decision today affirming a trial court’s finding that an arbitration clause between employer and employee was unconscionable when the agreement required only the employee to arbitrate all claims against the employer, required the employee to have discussions with his supervisors before filing for arbitration and a 180-day time limit.

Order denying defendant’s motion to compel arbitration AFFIRMED.

Nyulassy v. Lockheed Martin Corp., Cal. App. 6th Dist. No. H026704

The LA Times reports this morning that there are changes coming to the bounty hunter law in the budget deal.

After weeks of resistance, Democrats finally agreed to weaken what the GOP has dubbed the “sue your boss law.” That law allows workers to file multimillion-dollar lawsuits against their employers for a variety of offensives — some of them as small as using the wrong size type on posters that inform employees of their rights.The compromise would allow employees to sue for major violations, but only if the Labor and Workforce Development Agency refuses to act. And Democrats agreed to prohibit any suits for such minor violations as failure to post labor rules.

The deal hasn’t been voted on yet, and may face opposition by fiscal conservatives and some liberals, with the center suppporting it, but chances are this deal goes through. The law’s original author agreed with the changes.

Sen. Joe Dunn, D-Garden Grove (Orange County), said he was always open to changing the law to prevent frivolous lawsuits. “This law was never about lining the pockets of trial lawyers, it was about enforcing the labor code,” said Dunn, who wrote the original law.

This change will bring Labor Code enforcement suits more in line with other kinds of employment related disputes by apparently requiring administrative review first. I haven’t seen the text of the proposed amendments yet.

More to come…

• George’s Employment Blawg has this great entry on NLRA issues for companies without unions.
• The bounty-hunter law is still in the budget mix, according to the SF Chronicle.

Otherwise, another slow news day.

On the legislative front:

• a number of workers’ compensation bills are in the conference comittee. SB 1071, AB 1215, AB 1578, AB 1579, SB 191, SB 223, SB 229, SB 354, SB 451, and SB 757.
• SB 1687, an act pertaining to advance-fee talent services, which would amend LC 1701 to expand the definition of a”advance-fee talent services,” received its third reading in the assembly on Saturday.
• SB 534, requiring long-handewd tools for agricultural workers was sent to the inactive file on Saturday.

Also,

The SF Chronicle reports that the “bounty hunter” law is still in the mix on the budget deal; and public employee unions take the offensive against Republicans on the budget.

Legislative update: While I’m still a novice at reading the legislative information, there doesn’t appear to much of interest going on right now. I’m keeping my eyes on a few bills that were vetoed that are up for override, but they don’t have the votes. We’ll see.

Slow news day, folks. Too bad this isn’t a criminal law blawg, or I could post until Christmas on Blakely (which even has it’s own blawg!)

I’ve decided that this new template looks tons better. It seemed like the logical time to do this, since a rebuild was in order.

My name is Jon Storm. I practice labor and employment law in San Luis Obispo, California.

The San Diego Union-Tribune has this report:

About 500 Teamsters yesterday struck the Coca-Cola Bottling Co. of San Diego after four months of negotiations failed to achieve a new union contract. The key issue in the dispute is health care costs for workers, the union said.>

Yet another strike over health care costs.

I had intended to begin doing a “legislative roundup” every few days this week, but the leginfo.ca.gov site is refusing to cooperate with my plans.

Perhaps worth noting is that State Senator Martha Escutia (D-Whittier) is leading in the race to be the next President Pro-Tem. Sen. Escutia held the failed compromise talks over UCL reform.

Time has not yet permitted me to get on top of all of the bills currently before the legislature that might impact the Labor Code.

Steven Roach of Morgan Stanley has this summary of the labor market.

We hear repeatedly that the disconnect is all about lags or productivity. I don’t buy it. Instead, I believe that a new force has come into play that is now altering the fundamental relationship between domestic demand and domestic employment in the United States. I call it the global labor arbitrage — the IT-enabled efficiency tactics that allow US companies to substitute high-wage domestic workers with like-quality low-wage foreign workers in goods producing and services-providing functions, alike. The lack of pricing leverage in today’s climate makes this arbitrage an increasingly urgent competitive imperative. In my view, the global labor arbitrage is likely to be an enduring feature of the macro climate — raising the distinct possibility that subpar job creation in the US could well be here to stay for the foreseeable future.

SFgate has this report.

Would-be California medical students with learning disabilities filed a discrimination suit Monday saying their prospects of becoming doctors are being thwarted because they aren’t given enough time on the medical school entrance exam.

The suit arises under California law in Alameda Superior Court.

A lawyer hired by a union to represent one of its members in an arbitration hearing cannot later be sued by the worker for malpractice because the federal Labor Management Relations Act effectively immunizes the lawyer from such a claim, the 3rd U.S. Circuit Court of Appeals has ruled.

The Legal Intelligencer has this report.

The WSJ (sub. req’d) has this report: CPI up, wages flat; and this piece on legal weblogs. No mention of CL&EL (; Also, Boeing settles a sex-bias suit.

Will Wal-Mart get caught up in this settlement trend? [Not unless it really starts looking bad is my guess.]

The Sacramento Bee has this report on the status of State Fund going forward after the Schwarzenegger work/comp reform

Port business is boom, swelling the ILWU’s ranks. The LA Times reports.

Last week, the NLRB handed down a decision reversing their decision in NYU holding that graduate students are “employees” at private universities (NLRA doesn’t cover state employers.)

The central rationale seems to be that the relationship between students and the univeristy is “educational” and not “economic.” (Does this problematize post-doc fellowship appointments, etc.? are professors on tenure-track “primarily economic” in their relationship vis-a-vis a university?)

The LA Times has this report:

Many GOP lawmakers say they won’t support a spending plan unless the Legislature repeals what they call the “sue your boss” law, which this year expanded opportunities for workers to file lawsuits against employers.

* Here’s a novel legal theory: “Protester Tells Court: Wages Aren’t Taxable.” The LA Times has this report.

* Morgan Stanley settles a sexual discrimination suit minutes before trial. They agreed, in the consent decree, to outside monitors on gender bias, and increased training against discrimination. The WSJ has this report (sub req’d);

This ruling continues contouring the doctrine of at-will employment and its relation to contract-relationship torts. Unlike the covenant of good faith and fair dealing, which does not lie when an at-will employee is terminated, the employer cannot avoid tort liability for fraudulent inducement just because the employee’s relationship with the employer is at-will.

* The Contra Costa times reports Bay Area wages are growing more slowly.

* The LA Daily news reports has an interesting, two-sided report on UCL reform. (See this piece, via The UCL Practiioner, from the San Jose Mercury News rounding out the donations.)

[Ed: Industry seems to support turning UCL into class-action like lawsuits. There doesn’t seem to be much focus on the issue of whether or not private attorneys-general are democratically accountable.]

* Not much legislative action lately because of the budget impasse.

* The aforementioned potential port strike was averted. The LA Times has this report.

The Sacbee (via Howard Bashman) has this article:

Despite a few attention-grabbing reversals - as when the Supreme Court threw out the circuit’s ruling against “under God” in the Pledge of Allegiance, for example - about one in four 9th Circuit decisions reviewed by the high court met with its approval. Only four of the nation’s 13 circuit courts did better. Six had 100 percent reversal rates.

The Ninth Circuit has been more ideologically balanced for years.

This article in Slate examines the recent minimum wage studies and suggests that earned-income tax credits are a prefereable measure.

According to this article it today’s WSJ (sub. req’d).

It’s otherwise been a slow week.

LA Times reports labor contract talks between industry and labor broke down last weekend. At issue: internet software that allows customers to bypass the clerks.

The last port shutdown cost billions of dollars and has vast ripple effects.