Top links for the past week. . .

Cal Biz Lit: How To Get Out Of A Contract
Sacramento Bee, Dan Walters: Workers’ comp still a battlefield
Business Week: Wage Wars
Wage & Hour Law: Brinker Could Clarify Further The Meaning Of “Providing” A Meal Period
San Jose Mercury News: What rival health plans would mean for workers
What’s New In Employment Law: California Court: Alleged Independent Contractor Drivers Are Employees.
Ross’s Arbitration Blog: Attacking Arbitration
That’s What She Said: Fun Run

. . . And, just in case you missed it, don’t forget this week’s podcast.

Have a great weekend!

Ross’s Arbitration Blog has more on a new campaign by Public Citizen against arbitration provisions.

If you wonder why I obsess over S.B. 622—which stands little chance of becoming law—it’s because I believe it is part of a trend of increasing enforcement of the independent contractor/employee distinction.  Shaw Valenza has a good rundown of the case here, and I won’t repeat their work.

In a nutshell, the Court of Appeal wasn’t buying the independent contractor argument.

Last year, the Court of Appeal handed down an opinion in the relatively undeveloped area of non-public employee privacy rights vis-a-vis their employer, in Hillside v. Hernandez. That case held that a hidden camera in the workplace could constitute an invasion tort. The Hillside court had relied on an earlier opinion in Sanders v. American Broadcasting Cos. (20 Cal.4th 907).

The latter case involved a third party intruding on an employee’s workspace; it did not involve employer “intrusion” in its own premises. The Supreme Court in Sanders rolled back the broad holding of the Court of Appeal, which had flatly said that there was no right of privacy as such in the workplace. But it did not roll that point back with respect to the employer.

Nevertheless, the Court of Appeal in Hillside at least in part on that analysis, ran with that and held that the employer had some boundaries. For a while at least, that opinion was good law. It was depublished in January when the Supreme Court granted review. The briefs have been filed, but the case has not yet been argued.

Meanwhile, the Ninth Circuit held, in a case slightly off-point, that an employer may give law enforcement consent to search an employees office. (U.S. v. Ziegler (9th Cir. 2007) 474 F.3d 1184.) The case recognize, following the U.S. Supreme Court, that an employee has some expectation of privacy in his workplace against law enforcement. (Ibid. at 1189-90, citing Ortega v. O’Connor (1987) 480 U.S. 709, 716. (1987), accord Sanders, supra.) In Ziegler, the Ninth Circuit says that the employer has consent to allow searches of the employee’s workplace because it was “a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” (Ziegler, supra, at 1191.)

What impact will that have—if any—on the California Supreme Court’s decision in Hillside? Maybe none, because, to me, all they have to do is reaffirm their holding in Sanders: simply that while employees do have a right of privacy at work from the outside world, but not from their employers.

We shall see. I am adding this case to the track list.

UPDATE: I just now found out how stupid this site is looking in Internet Explorer. I’m working on it. Fixed. Sigh.

I apologize to those of you who had been wondering what the matter with this site was.

I’ve upgraded the site to WordPress 2.3. Unfortunately, that borked some of the tag functionality. The tracking pages linked at the left will only show posts, and not their master pages. I’m working on manually updating the code. Also, you’ll note that none of the pages that used to be in the “legislature” category have been tagged. I will be repairing that soon.

Just by way of a short update, the tracking widget on the left will eventually have much more functionality added to it. I am currently writing some custom software that will update it automatically, and provide on-demand information. I have about 10% of the controller code done, 90% of the interface done, and about 50% of the data model done.

One of the first features I am going to add is a feature that will let you examine employment law opinions by justice/judge, and bill by legislator. I hate announcements like this that lead to vaporware, but, barring some unforeseen calamity, I should have it ready in early 2008.

Update: Both problems solved. Tag permalinks now include pages, and ‘legislature‘ tagged posts are back on the list.

Bruce Nye at Cal Biz Lit has an interesting post on Gentry (h/t The UCL Practitioner.)

In my original post on Gentry, I noted that:

I think the practical effect of this case will far exceed its holding. In fact, I expect it to add new dimensions to practically every employment case. If every employment contract of this kind has some procedural unconscionability, and that allows an analysis of potentially unconscionable substantive terms…

Mr. Nye at Cal Biz Lit recently stated that he thinks the language goes beyond just employment contracts:

It isn’t clear after this case that any contract of adhesion can escape scrutiny for substantive unconscionability if the side with the power has expressed a preference that the “little guy” sign it and hasn’t given him clear, conspicuous warning that some parts of it aren’t to his advantage. The possibility of opening every contract to scrutiny for fairness is fairly breathtaking.

I don’t take it quite that far. Sure, that is the reductio ad absurdum of the language in that case; however, realistically, this case isn’t going to radically alter all aspects of contract law. Employment contracts are a special case that have long been recognized as asymmetrical in power, and vast quantities of statutes, public policy, and case law reflect that. Without much exaggeration, I’d say that’s what 75% of the Labor Code is about.

What about the other “little guy” situations? I suppose it will depend on the power dynamic of the relationship, but I’m not sure just how far that deviates from the existing framework. I would never underestimate the creativity of my colleagues, so I don’t doubt that language from Gentry will be used in many situations where it doesn’t apply, like the million dollar company versus the mutli-million dollar company. Will it succeed? My Ouija board says no, but it’s often broken.

It will indeed be interesting to see how this plays out.

The Legislature is busy with other things this week, so we turn to the courts.

 

 Storm's California Employment Law Podcast for Sept. 24, 2007 [1:41m]: Play Now | Play in Popup | Download

It includes SB 622. None of the others that I am tracking are listed.

Based on the Legislative Calendar, I believe the Governor has until October 14 to veto or sign the bills that were presented at the end of the session (as opposed to the 12-day rule that applies to earlier bills). I’m not 100% how or if the extraordinary sessions (there are technically 2) affect that. Leave a comment if you know for sure.
None of the listed supporters have much on this bill up on the ‘tubes. If you work for a group supporting a bill I’m tracking, please send me your materials.

“Wage Law” has more on Brinker, here.

The one and only unanimous view we’ve heard is that Miles Locker argued well for the amici and that the justices seemed very interested in what he had to say about the DLSE regulations and practices. Aside from that, defense lawyers seemed to believe the employer’s side was better presented, and employees’ lawyers thought the opposite.

Shocker!  I didn’t hear it, and regardless of who argued it better, I don’t expect any huge deviation from precedent from the Court of Appeal.  Maybe the Supremes will take it up.  We’ll see.

Here’s a list of some of the employment law blogs I read:

“That’s What She Said” by Julie Elgar
“The UCL Practitioner” by Kimberly Kralowec
“George’s Employment Blawg” by George Lenard
“Labor & Employment Law Blog” by Sheppard Mullin
“Jottings By An Employer’s Lawyer” by Michael Fox
“Law Memo” by Ross Runke
“Wage Law” by Walsh & Walsh P.C.

Got a good one? E-mail me.

Next week’s Business Week has an article about the state of overtime laws in the U.S. From the first graf:

Do America’s decades-old overtime laws make sense anymore? Despite the litigation they are generating, there’s almost no political momentum to change them.

If the author means there’s no political momentum to repeal overtime laws, he’s probably correct, but wise old codgers like me remember in the deep dark past the great overtime regulation revolution of 2004. Those changes required a fair amount of political capital, too.

The crux of the argument is that overtime laws are not achieving their original policy aim:

Yet it’s generally accepted that overtime laws don’t achieve one of their main New Deal-era goals: increasing employment. The initial idea was that companies would choose to hire extra workers rather than pay existing ones time and a half. But that calculus doesn’t hold these days, given the enormous fixed costs of such things as benefits and training for each additional employee.

That may be true, but the original 70 year old policy aim, I submit, is irrelevant. In politics, anything you’ve given to some group that’s advantageous to them, they want to keep. Telling someone they don’t need their extra pay because it’s not creating more workers isn’t going to fly. That’s the politics of it.  Policy-wise, there has to be negative implications to that kind of change to wages.

This article started out suggesting that overtime litigation was the concern–is there no common ground between business and labor on that aspect? If not, I suspect the sides are much, much closer than they would be on eliminating overtime.

What’s the solution?

The LA Times has the most comprehensive rundown of the bills passed this year in the legislature. Only two or three that are of interest to the employment bar are mentioned.

I’m heading up to the capital tomorrow on other business, but, while I’m there I will try and find out as much as I can about our potential new employment laws.

Check out the tracking widget to the left.  There is an explanation here.  This is custom code I’ve developed for this site.  It will continue to advance.

New developments on the end of the Legislature’s session.

I completed my interviews for this early, and I will be in Sacramento on business next week, so I wanted to be sure to get this up ASAP. Enjoy.

 

 Standard Podcast [1:40m]: Play Now | Play in Popup | Download

I received a question in the comments about subscribing to the Podcast with iTunes.

Currently, you can simply open iTunes, go to the Advanced menu, and select Subscribe to Podcast. . . and enter http://stormsemploymentlaw.com/?feed=podcast to subscribe.

Apple is currently reviewing my Podcast. It should appear on iTunes’s Podcast directory before long, and then you can subscribe that way also. It should also be listed on PodcastAlley.com, PodcastReady.com, and Yahoo! Podcasts in the next several days.

I am also in the process of putting the final few touches on SCEL 3.0: (1) custom art, (2) I am coding a sidebar widget that will list all of the bills and cases I am tracking, and will give a color code as to their status, and a click-through link for all of the posts on that topic on this blog. (I’m still early in the coding phase, and I don’t even have a fully functional test version yet, but I’m getting there.)

UPDATE: Apple has approved my podcast.  The link to add it in iTunes is:  http://phobos.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=264298114

That will cause your browser to open iTunes and should eventually send you to my podcast.  I’ve had no problems using the manual subscription method in XP, Vista, or Mac OS on iTunes 7.4.1.

Various papers state-wide (Sac Bee, San Jose Mercury News, San Diego Union-Tribune, OC Register) have given their postmortems on this Legislative session. None of them mention any of the many employment-related bills, and probably for good reason. With the budget impasse and the prospect of a special session to cover hot-button issues like health care and water resources, compounded with a divided government unlikely to enact many controversial bills touching on employment, this is not an unlikely result.

Nevertheless, I think it’s worth keeping an eye on some of the subtle changes to the usual suspects that would be in store for 2008 or 2009 (depending on when they get signed, if they get signed), and I’ve tried to do that here. Also, there are some interesting trend indicators, especially involving independent contractors.

Of course, any employer-based state-mandated health care system will put everything else on the back burner for now. Until we know the contours of a plan that can pass, I’ll keep focusing on these issues.

I am in the process of gathering comments from the various interests groups, bill sponsors, and the governor’s office regarding some of these bills. Stay tuned.

Everything is working, more or less, at this point. There are still a few problems with the FeedBurner feed and the Podcasting feed to Apple. I’m working on it.

You can subscribe to this site’s Podcast in iTunes by going to Menu Advanced > Subscribe to Podcast… and entering either of the following URLs: (1) http://stormsemploymentlaw.com/?feed=podcast
2) http://feeds.feedburner.com/stormscaliforniaemploymentlaw

There appears to be a bit of a delay on Feedburner in Google Reader and Bloglines, but the feed is instantly updated on the actual Feedburner page. Anyone who has any suggestions, please let me know.

The Feeds appear to be updating rapidly, but showing wildly incorrect timestamps.

I’ve given up on Feedburner. Straight RSS now only. Usual methods.

Also to the Governor. More to come.

The Senate concurred in the Assembly amendments by a vote of 22-16 this morning.

The move to WordPress and the new URL appears to be complete. I am adjusting some settings with the RSS feed, and then we’ll be ready to go live.

UPDATE: I apologize for the generic graphic above, but that’s a separate project. We’re going live.

Here are some of the new features:

• Thin PDA theme for SmartPhone browsing
• Feedburner instant updates for RSS subscribers
• Anyone can comment, but there is a spam checker
• All posts have tags updated
• Social networking referral buttons
• Podcasts!!!

Much more

SB 836, adding “familial status” as a protected class under the Unruh Act and the FEHA. Familial status is defined as:

one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian.

I’ll try and find out what this bill’s chances are.

SB 622, which I felt would have been the one potentially paradigm-shifting piece of employment law legislation this session, has been significantly amended. The new version of the bill drops the private right of action for independent contractor misclassification.

A spokesperson for the bill’s sponsor, Senator Padilla (D-San Fernando), told SCEL this afternoon that the amendment was made in “an attempt to work with the opposition,” for whom the private right of action was a huge concern. Senator Padilla’s office was hopeful that, with these amendments, the bill would make it through the Legislature, but felt that it was still “highly unlikely” that the Governor would sign the bill, even as amended.

The bill had passed the Senate 23-15 prior to the recent amendments.

Last year, a similar bill, A.B. 2186 (Torrico), was introduced stating only that it would be “the intent of the Legislature to prohibit deliberate misclassification of employees as independent contractors and to”penalize intentional misclassification.” No specifics or enforcement mechanisms were ever set out.

That bill died in committee after the author gutted it. This year, a bill on this topic appears to be headed to the Governor’s desk. Take note of this trend, and consider accordingly when dealing with issues of independent contractor classification.

A.B. 1043, which would make void any choice of law provision in an employment-related dispute other than California void. It would also make a non-California forum clause void. This bill is, at least in part, a reaction to Olinick v. BMG Entertainment (2006) 138. Cal.App.4th 1286, which permitted a New York choice of law clause in an employment contract.

S.B. 549 adds to the right to inquire about, request, and take time off for bereavement leave.

Both of these bills apparently received party-line votes, and did receive support from labor, and opposition from the California Chamber of Commerce and other industry groups.

I will seek comment from the Governor’s office after they are formally sent to him.