Rehearing denied and Remittitur issued.  Case closed.

This, obviously, is not an employment-law-specific topic, but it is one that I confront so often that I would like to talk about it. As you probably know, the California Judicial Council has produced sets of Form Interrogatories designed, in their opinion, to facilitate the discovery of certain basic information, and has even been kind enough to produce certain area-specific forms, like Employment Law.

But these forms seem to confuse the hell out of us licensed Juris Doctor holding folk.

First, some people maintain that these Interrogatories are “objection proof.” I have received more than a few “meet and confer” letters where my objections to Form Interrogatories were scoffed at in such a manner.Let me just set up a few reductio ad absurdum examples: if they’re objection proof does that mean that they compel the disclosure of attorney-client privileged information? There is no exception in the Discovery Act exempting these Form Interrogatories from the requirement that they be reasonably calculated to lead to admissible evidence, either.  So, don’t ask me if my client is a corporation, partnership, LLC, or unincorporated association if you know you’re suing a natural person.

Second, while I would say that it’s a tough case to make that you the Form Interrogatories are objectionable as to form, it’s at least possible that in certain cases they might be. I take a dim view of that, though. I’ve never seen such a case, but I’ve seen pages of boilerplate objections to Form Interrogatories on form bases. “Compound” is my favorite. (wtf?)

Third, please don’t send me Form Interrogatories (General) and Form Interrogatories (Employment) and check boxes that ask for identical information and expect me to respond twice. You’re entitled to the information–you’re not entitled to it with whipped cream and a cherry on top. True there are some that look deceptively similar that actually do ask for different information, but many are in fact identical.

I understand the concept of zealous representation. I understand that that requires, at least to some, that discovery games be played. But really, the definition of zealous doesn’t include stupid.

The use of the Judicial Council Forms should be abolished in Unlimited Civil cases, where they have become some kind of stupid potion, and a vehicle for abuse.  Or, at the very least, they should count against the limit of 35.

The Supreme Court docket is here.

 That’s Kimberly A. Kralowec of The UCL Practitioner. 

• Lifehacker: What Workplace Practices Should Be Over?
• Ross Runkel: Hall Street: Contract vs. statute.
• Union Review: 28,000 workers who were once misclassified as “Independent Contractors” are now UNION! (h/t George’s Employment Blawg)

And don’t forget this week’s podcast.  Have a great weekend! 

The docket is here.

From the AP:

“By classifying its armed guards and other personnel as independent contractors instead of employees, Blackwater has apparently evaded withholding and paying these taxes,” Waxman, D-Calif., wrote in a letter to Blackwater chief Erik Prince.

You can read the letter here, and Blackwater’s response, here.

More on the DLSE.  Murphy v. Check ‘N Go briefly noted.

 

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San Francisco Chronicle: BART worker awarded $1.27 million for on-the-job racial harassment (h/t Jottings By An Employer’s Lawyer)
Los Angeles Times:Big business on a hot streak with governor
Jottings By An Employer’s Lawyer:Family Responsibility Discrimination Doesn’t Advance in California
Wage Law: Hourly Fees With a Comma?
AP: Swearing at work boosts morale. [But gives HR and employer attorneys heartburn. . .]
ABA: Jerks Confronted At Perkins Coie, Duane Morris. [A trend that is expanding everywhere. . . will this turn into some kind of law?]

Also, don’t forget this week’s podcast, which wrapped up the Legislative session.

Have a great weekend. We’ll see you on the flip.

UPDATE: OK. Maybe this has something to do with why people diss the DLSE. (h/t Robert Nuddleman)

I apologize for having nothing further on SB 622.  Senator Padilla’s office, who is usually very quick to get back to me, has not returned my calls asking for comment on the veto of SB 622.

I’m going to go out on a limb and guess that there will be no veto override attempt, because it won’t happen.  I will also guess that another independent contractor bill will be coming next year.  I would like to properly report these things instead of just analyze and guess, but that’s all I’ve got right now.

I was preparing to explore the theorizing that I and other bloggers did in the wake of Genrty that it would have implications for employment contracts in general, when I came across this footnote in the recent Murphy v. Check ‘N Go case.  “Plaintiff requests judicial notice of information on the process for bringing claims before the Labor Commissioner, which is offered to show that this process ‘does not provide the same protections for the employee and is not an adequate substitute for a court proceeding. . . .’” (Slip. Op. at 9-10 n.1)

I’ve noticed a few times where this has come up.  Here, it was a submission by Plaintiff/Appellee.  The California Supreme Court did it in Gentry, the Court of Appeal did it in Sumuel v. ADVO, Inc.  The Court’s have also declined to give any weight to the DLSE’s opinion letters, and disavowed the notion that the DLSE could issue precedent opinions.

A couple of years ago, the Legislature passed a bill (which was vetoed) that would have required the employer to show up at the DLSE hearing instead of skipping them and waiting for their day in court (AB 879 of 2005.)  I was told by a spokesman for the bill’s author that this was to prevent employees from “spinning their wheels” with the Labor Commissioner.

Now, employers generally hate the DLSE and the entire Berman hearing process.  The so-called de novo review has been rendered almost useless for employers because in order to avoid paying the employee’s attorney’s fees, you must negate all of their recovery.  But, the DLSE is, on its face, an even cheaper and more streamlined way to resolve wage hour disputes than the arbitrations many businesses are spending major coin to uphold.  There are no class actions.  There are no punitive damages.  There is almost no discovery.  Lawyers aren’t required.  The rules of evidence are very liberal.

On the other side, employees don’t need a lawyer, get help from the staff, and generally get their money in a matter of weeks, not months or years.  The notion that small recoveries don’t work there are ridiculous.  I’ve been sent to defend claims of around $100! The employee only lost a few hours of paid time off.  On top of that, the waiting time penalties almost always make it a gainful proposition for the employee, who does not end up giving a huge chunk to an attorney.  And guess what? They have really smart, experience, and knowledegable attorneys like Bill Reich who will represent you for free if there’s an appeal.

Yet, no one wants to go there.  No one wants it to do anything or have anything to do with it.   Is this simple interest group stuff and/or turf battle stuff?  (It’s unfair for employer-side attorneys, not cost effective for their clients, cuts into plaintiff’s attorney’s “market share,” and does a judicial function that the courts think/know they’re the best at)  Is that too cynical? or too naive? I’m not sure.

One of the contentions is they can’t handle the extra load.  Last I checked, the courts were bursting at the seems themselves. It seems to me that given the choice, funding the DLSE to handle a higher load is cheaper than doing the same in the courts.  But if we fund up the courts, then are we paying for the DLSE for?

Please leave comments or send me an e-mail if you have any thoughts about this.  I am genuinely confused.

Applying Gentry’s unconscionability analysis, the First District struck down an arbitration agreement including a class action waiver. (It did not appear to apply the “statutory mandate” part of Gentry.)

Here is a short list of the meager changes made by this year’s session. The hourly programmer exemption dropped to $36 per hour from $42 $41 by SB 929. Pharmacists can use the alternative work-week provisions of Wage Order 4 instead of 7 by SB 812. Employers who are found to be illegally without workers’ compensation insurance can get their business name listed on the Internet by SB 869. There were a few tweaks to workers’ compensation, including a study of workers’ comp insurer insolvency by SB 316, AB 338 AB 1073, and AB 1269. Ab 392 allows for 10 days of unpaid leave to qualified military spouses.

The LA Times has this article:

In recent years, the chamber has focused much of its lobbying firepower on an annual list of “job killer” bills. This year, Schwarzenegger complied with 12 out of 12 chamber requests for vetoes on those bills. In 2006, he vetoed nine of 11 bills that the chamber listed as job killers.

“The chamber has had more success than most in getting vetoes,” said Steve Blackledge, legislative director for the California Public Interest Research Group, a consumer advocate. “They draw a bright line in the sand and say, ‘These bills have to be stopped.’ They’ve got the governor as their backstop.”

That’s not 100% accurate.  He did not veto AB 338, which was on their list of 12 (though it was amended to their liking, but he didn’t veto it.)

The SF Chronicle follows up last week’s article on leave laws with news of the vetoes.

I believe a new independent contractor misclassification bill will be introduced. SB 622 passed this year, after a last minute compromise–but remember, in 2006, it was AB 2186, and it didn’t even make it out of committee. With the U.S. Congress also taking up the issue, I believe this issue isn’t going away.

This is far from a bold prediction, but I am sure we will see a number of workers’ compensation bills aimed at increasing benefits. I wouldn’t be surprised to see a strong push behind a San Francisco-style paid sick leave initiative as well.

Michael Fox believes that “familial status” discrimination, and “familial status” as a potential protected class will be back. We often lead on those issues here in California. (Thanks for the kind mention, too, Michael.)
Why should next year be any different? It’s a presidential election year, and a big one. Each party will do what it can to eliminate motivating issues for the other. California probably isn’t realistically in play, but some Congressional districts are. At this point, I just can’t say which direction that will move these issues. However, I think we will see more laws enacted next year in that environment than we did this year, where the entire session was overshadowed by a budget showdown, and the extraordinary sessions on health care and water.

I hope to have my new software up and running by the time legislators can start placing bills in the hopper, too.

This week we’re wrapping up this year’s legislative session, and touching on the Brinker opinion.

 

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AB 537:

To the Members of the California State Assembly:

I am returning Assembly Bill 537 without my signature.

This bill, along with two others I am returning without my signature, would significantly
expand California’s workplace leave laws. While some expansion of existing law may
have merit, these laws in combination are too expansive and also fail to recognize the
need for reforms to current law.

California has the strongest employment leave and workplace protection laws in the
country. While these laws have been enacted with the best of intentions, they have also
caused much confusion for employers and employees. Unfortunately, many California-
only standards in areas such as family leave, overtime, and meal and rest periods have
been developed haphazardly and have resulted in needless litigation that has created a
perception that California is not friendly to business.

Instead of expanding the confusing network of laws that presently exist, employers and
employees should be working together to eliminate confusion and create a system of
workplace laws that protects workers, provides reasonable leave requirements, and offers
both employers and employees flexibility to meet their respective needs.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

AB 1707:

To the Members of the California Assembly:

I am returning Assembly Bill 1707 without my signature.

This bill attempts to clarify existing law relative to employees’ access to personnel
records kept by their employer. While I support the intent of this measure, especially as
it relates to non-English speakers and others that may need help in understanding the
contents of their personnel records, this bill is too broad and exposes employers to unfair
and unnecessary liabilities. I encourage the proponents of this bill to work with the Labor
Commissioner to adopt regulations that help ensure that all employees can appropriately
avail themselves of their rights under current law.

Sincerely,

Arnold Schwarzenegger

and AB 1710:

To the Members of the California State Assembly:

I am returning Assembly Bill 1710 without my signature.

Although I support the intent of this bill to clarify the manner in which temporary service
employers must pay wages, I cannot support the provision of this bill which expands
liability regarding workers’ compensation coverage.

As written, this bill imposes joint and severe liability relative for workers’ compensation
coverage on employers that contract with staffing agencies. This would be a significant
departure from the exclusive remedy of current law, which provides that an injured
worker cannot sue their employer in civil court. Exclusive remedy is one of the most
fundamental principles of the California workers’ compensation system. I cannot support
a measure that deviates from this principle.

Sincerely,

Arnold Schwarzenegger

With a little over three hours left, the Governor has six bills left to act on.

UPDATE: The Governor vetoed SB 180 and SB 650 in his last set of bills.

SB 180:

To the Members of the California State Senate:

I am returning Senate Bill 180 without my signature.

Since I became Governor, I have made strengthening workplace protections for
agricultural workers one of my top priorities.  I have added labor law enforcement
positions, reformed farmworker housing laws, and worked to adopt the first regulations in
the nation that ensure agricultural workers have appropriate access to shade.  These added
protections are being implemented under existing law without the changes proposed by
this bill to the historic Agricultural Labor Relations Act (ALRA).  The changes this bill
would make to the ALRA are unnecessary to continue our forward progress in ensuring a
better working environment for agricultural workers.

By setting in place a “card-check” organizing process, SB 180 significantly changes the
protections afforded to all of California’s agricultural workers under the ALRA.   This
“card-check” process fundamentally alters an employee’s right to a secret ballot election
that currently affords them the opportunity to cast a ballot privately without fear of
coercion or manipulation by any interested parties.  This bill also limits the opportunity
for employees to hear and consider other viewpoints on unionization.

For these reasons, I am returning SB 180 without my signature.  However, I am directing
my Labor and Workforce Development Agency to work with the proponents of this bill
to ensure that all labor laws and regulations are being vigorously enforced, and to make it
absolutely clear to all concerned that my veto is premised on an expectation that
agricultural workers receive the full protections of the law.

Sincerely,

Arnold Schwarzenegger

SB 650:

To the Members of the California State Senate:

I am returning Senate Bill 650 without my signature.

This bill is essentially identical to SB 180, which I also vetoed.  The concerns I expressed
in vetoing that bill apply to SB 650 as well, regardless of the insertion of a sunset clause
in this measure.

For the reasons stated in my veto of SB 180, I am returning this bill without my
signature.

Sincerely,

Arnold Schwarzenegger

The Sacramento Bee wraps some of the Governor’s activity here, and the AP does the same, here.

The governor vetoed bills to expand employee leave. SB 727 by Sen. Sheila Kuehl, D-Santa Monica, would have expanded the state’s family leave program to cover employees who have to care for grandparents, grandchildren, siblings or in-laws. Senate Bill 549 by Corbett would have specified that employees have a right to four days of unpaid bereavement leave.

Schwarzenegger wrote that the state’s workplace laws have already become too confusing.

I’m still waiting for the Governor to take action on a handful of bills before I complete my final report on this session.  He has until midnight.  The podcast should cover everything, and I will also post a written report.

The permalink structure has been updated to include human friendly links.  The old SQL based ones still work.  Also, an iPhone optimization plug-in has been added in addition to the one supporting Windows Mobile and Blackberry, making this site as phone friendly as I can.

To the Members of the California State Senate:

I am returning Senate Bill 836 without my signature.

California has the strongest workplace laws against discrimination and harassment in the
country.  These laws provide workers necessary protections from unfair retaliation,
discipline, and termination for matters unrelated to job performance.

Although I support these laws, expanding workplace protections to include something as
ambiguous as “familial status” is not appropriate.  This bill will not only result in endless
litigation to try and define what discrimination on the basis of “familial status” means, it
will also unnecessarily restrict employers’ ability to make personnel decisions.

For these reasons, I am returning SB 836 without my signature.

Sincerely,

Arnold Schwarzenegger

To the Members of the California State Assembly:

I am returning Assembly Bill 1043 without my signature.

This bill appears to create a solution in search of a problem.  California law currently
ensures that employees can not be subjected to unconscionable contract provisions that
would force them to forego the protections of California law or litigate their claims in an
inappropriate out-of-state forum.  Moreover, this bill creates unnecessary and unhelpful
uncertainties for the employers and employees concerning issues of federal preemption.
Lastly, I strongly support the right of parties to freely contract for the terms of their
employment relationship.  This bill fundamentally conflicts with that policy.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

More to come.

To the Members of the California State Senate:

I am returning Senate Bill 549 without my signature.

This bill, along with two others I am returning without my signature, would significantly
expand California’s workplace leave laws.  While some expansion of existing law may
have merit, these laws in combination are too expansive and also fail to recognize the
need for reforms to current law.

California has the strongest employment leave and workplace protection laws in the
country.  While these laws have been enacted with the best of intentions, they have also
caused much confusion for employers and employees.  Unfortunately, many California-
only standards in areas such as family leave, overtime, and meal and rest periods have
been developed haphazardly and have resulted in needless litigation that has created a
perception that California is not friendly to business.

Instead of expanding the confusing network of laws that presently exist, employers and
employees should be working together to eliminate confusion and create a system of
workplace laws that protects workers, provides reasonable leave requirements, and offers
both employers and employees flexibility to meet their respective needs.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

More to come….

To the Members of the California State Senate:

I am returning Senate Bill 622 without my signature.

Although this bill is intended to promote the worthy goal of ensuring employees are not
intentionally misclassified as independent contractors, thus deterring employers from
conduct which may give them unfair economic advantages against their competitors, this
bill also creates new mechanisms and incentives for litigation where sufficient remedies
already exist. In creating new and redundant exposure to litigation and sanctions, this bill
may cause businesses to avoid use of the independent contractor model even where it
may be appropriately utilized. This will ultimately contribute to a negative perception of
California as an inhospitable business climate.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

UPDATE: I will follow up with Senator Padilla’s office to see if they intend to attempt a veto override (waste of time) or if they will introduce a new measure next year.  Remember: last year’s bill didn’t even pass the committee.

Governor Schwarzenegger has signed AB 14 into law. I will have more details soon.

Also significant here is that this is another reversal of a trial court’s supposedly broad discretion to make class certification decisions. Here the class certification was reversed. Is it going too far to wonder if Sav-On is a dead letter, both in its “pro-class” and “pro-discretion” senses?

We’ll all digest this over the coming days, but here is some of the choice language:

Furthermore, because (as the parties acknowledge) Brinker’s hourly employees
may waive their rest breaks, and thus Brinker is not obligated to ensure that its employees
take those breaks, any showing on a class basis that plaintiffs or other members of the
proposed class missed rest breaks or took shortened rest breaks would not necessarily
establish, without further individualized proof, that Brinker violated the provisions of
section 226.7, subdivision (a) and IWC Wage Order No. 5 as plaintiffs allege in their
complaint.
(Slip. Op. at 25)

They punted on the big question about whether employers must “force” meal periods, but they implied in a few places that’s where they would go:

“The term “provide” is defined in Merriam-Webster’s Collegiate Dictionary (11th ed. 2006) at
page 1001 as “to supply or make available.” (Italics added.)”

(Slip. Op at 30.)

In White v. Starbucks Corp. (N.D.Cal. July 2, 2007) 497 F.Supp.2d 1080
(Starbucks), the United States District Court for the Northern District of California
recently concluded that, under sections 512(a) and 226.7, “the California Supreme
Court . . . would require only that an employer offer meal breaks, without forcing
employers actively to ensure that workers are taking these breaks,” and stated that “the
employee must show that he was forced to forego his meal breaks as opposed to merely
showing that he did not take them regardless of the reason.”

(Slip. Op. at 39-40)

At the end of the day, the Court didn’t address that issue, and I don’t think we’re done here. This one is unpublished. I’ll post if there are any requests for publication added to the docket.

Shaw Valenza has their take here.

My guess on why they didn’t publish this? Two reasons: (1) they think it’s going up a level anyway, or (2) they think it’s going down and back up. I can see either or both happening.

Meanwhile, unless you’ve got the coin to fight one up to the Tenderloin, keep ensuring your employees take their meal periods.