The California Supreme Court ruled today on Prop. 64, as most of you are likely aware.  The rulings are Solomonic: yes, Prop. 64 applied to pending cases, but, yes, you can amend to add people who were affected.

The Supreme Court did not address to too-clever-by-half "statutory repeal" rule that many of the lower court rulings had depended on.  The Court instead relied on the substance/procedure distinction.

Of course, this is all well and good, nearly two years beyond the election that put this law into place.

My analysis is that the Supreme Court is in the process of walking back some of its strong anti-retroactivity opinions of the early part of this decade and the late 1990s. 

While I was off in Europe (where the current debate is over whether to allow some non-permanent workers), the defunded IWC has named a committee to consider a raise in the minimum wage. The Democrats’ proposal would link the minimum wage to an inflation index.

For more, see here. The Sac Bee has great coverage of these things.

There appears, in this election year, to be a consensus over raising the minimum wage–it’s just a question of how to do it. Nothing inventive–just the usual rhetoric from both sides. I expect this issue to heat up, especially now that some polls have Angelides ahead.

Employers should be aware that this will impact more than what they pay their minimum wage workers. Obviously, it will also implicate those workers’ OT rates as well. More significantly, however, every time the minimum wage changes, employers need to review their exempt employees to make sure they remain above the salary test, which is based on the minimum wage. Despite the byzantine mystery of many of the exemption tests, the salary test side is fairly straightforward, and, surprisngly to me anyway, is often a bigger issue than the duties tests.

UPDATE: Is there an echo in here?

A split government has certainly slowed down the former torrent of employment bills.  Here’s an update on the selected bills tracked by CEL:

AB 1912: Would have forbidden an employer from terminating an employee who brought a firearm to work in his car.  Status: apparently dead (second hearing in committee withdrawn by author).

AB 2095:  Limits sexual harassment training requirement to supervisors in California.  Status:  Has cleared committee in Assembly, but has been amended in the Senate.  It passed 78-0 on its third reading.  Differences will need to be worked out in conference, but it’s on its way to passage.

AB 2186:  This bill formerly stiffened penalties to misclassifying workers as independent contractors.  It has been gutted to allow the EDD to seek $25,000 fines for misreporting employees (including as having independent contractor status).  Status: returned to committee in Assembly, the originating house.  Judiciary Committee has taken jurisdiction over this bill, but has not acted. 

AB 2217:  Individualized alternative work weeks. Status: rejected in committee.  Reconsideration has been granted, but this bill is probably dead at this point.

AB 2327:  Requires additional reporting on paystubs for farm labor contractors.  Status:  This bill passed the Assembly on its second attempt.  It made it out of committee in the Senate by a 3-2 margin.  A wide range of labor groups support this bill.  There is, however, no registered opposition.

AB 2334:   Would require janitorial service employers to register annually with the Labor Commissioner.  Status:  This bill’s first Senate committee hearing has been cancelled at the request of the author, after passing through the Assembly on an apparently party-line vote.  Opposed by the California Chamber of Commerce.

AB 2371: Would invalidate arbitration clauses pertaining to FEHA violations.  Status: dead.  Failed passage in Assembly 38-39. 

AB 2388:  Status: amended to a non-employment-related bill.

AB 2536: 8/40 overtime would apply to personal attendants.  Status:  Needs a second reading in Senate, and then, assuming there are differences, third readings after conference.  This appears to be a hotly contested bill, with many groups lining up on each side.  This one will be worth watching.

SB 1188: Would require employers to issue checks that have a way of being turned into cash for free. (In other words, to undermine check cashing businesses.) Status: despite its passge in the Senate, this bill died in an Assembly committee, 1-5.  SB 1189, a similar bill, has been withdrawn by the author.

The NLRB has ruled that overly broad arbitration agreements can violate the NLRA.  More here.  Some details:

On May 20, 2003, U-Haul distributed a mandatory arbitration policy to
        its employees that stated: "Your decision to accept employment or
        to continue employment with [U-Haul Co. of California] constitutes your
        agreement to be bound by the [U-Haul arbitration policy]." The policy
        "covers all disputes related to or arising out of an employee’s
        employment with UCC or the termination of that employment."

The upshot is that you’re signing employees to an illegal contract (beware: the UCL lurks!) if you’re overzealous with your arbitration agreement.

This is yet another example of why I caution employers not to go running to their attorneys every time a law firm’s newsletter claims some new court ruling requies their arbitration agreements be re-written.  Arbitration agreements can implicate literally every element of the complex state and federal web of employment laws.  I urge employers to be conservative, and not to be part of an experimental avant garde with these. 

In California, at least, even the mere act of signing employees to an illegal contract can give rise to liability under the UCL.  Being overly agressive with these agreements may, therefore, not net any benefit to you–unless you like being the fee-paying guinea pig for a labor lawyer’s experiments with the limits of the law.

UPDATE: Apropos of this, take a look at this article at law.com. "Arbitration’s Fall From Grace."