Shaw Valenza: Waiting time penalty statute of limitations. [McCoy]
Carlton DiSante & Freudenberger: Extremely Important Discrimination Case to be Heard by U.S. Supreme Court Next Week
Shaw Valenza: California Supreme Court to Consider Administrative Exemption
WageLaw: Court of Appeal Says Statute is One Year For Waiting Time Penalties Unless Complaint Also Seeks Underlying Wages [McCoy]

There was no podcast this week.

Have a good weekend.

This is another “advance sheet” pro-employer case.  But look at the issue: temp agency workers who are still ostensibly “on the roll” at temp agencies are owed waiting time penalties.  This is an instance of the L’Oreal genus, which followed the valid-only-when-they’re-valid DLSE interpretation.

Since temp agencies can be on the hook for FEHA violations, are they off the hook after this discharge, or are they in trouble coming and going?

(Thanks to BD for pointing this out.)

In addition to covering signfican developments in California Employment law, there are two other projects that I am dedicating some of my energies to, and I hope this website will serve as the main center for.

First, “cradle to grave” law tracking.  For example, let’s say the California Supreme Court reverses Torrey Pines.  I would expect that would generate a bill in the legislature.  That bill has to go through the Sacramento Labyrinth, and one day maybe codified.  Then, as you know, it may bounce around in the Courts.  One day, it may be repealed or voided.

Though blogging and the Internet in general have radically improved practitioners’ ability to do this, the abilities of current technology far exceed what’s offered.  Most of us rely on expensive on-line services to provide us with public records, most of which are linked to each other through explicit citation.  Google and a few algorithmic tweaks could put Shepards and KeyCite to shame, if only those records were better organized, but I’ll get to that later.

What is already publicly available is not, to my mind, sufficiently organized for efficient use by practitioners.  The tracking widget you see on the left side of the blog is the nascent stage of software I am writing that will do that.  I’m somewhat afraid of making “vaporware” promises, but I hope to have an automated system that will interface with the publicly available legislative and court records to update the status on employment law matters.  With a few tweaks, practitioners in other fields could easily adapt that software for their purpose.  Analyzing these trends lets you play weatherman a little bit.  Just for example, when you settle a case may be important depending on your forecast of an upcoming case that could radically change the dynamics.  A few years back, I worked on a case that would have been completely different if Hillside and Torrey Pines had been settled by the Supreme Court.  I’d like to have some coefficient to factor these in in the future.

Part of that means recording Justices’ and Legislators’ (and Governors’) tendencies.  That is included in the data model I’m developing. I’ll update you as I progress.  Right now, the software is not yet code-complete, but the data model is.

Second,  the Internet has redefined “public record.”  For the most part, for a nominal fee, you can see almost everything filed in a federal court case, at least within the last few years.  Some of our counties let you do the same.  Unfortunately, you can’t search for a “decision re: Labor Code 226.7,” if for no other reason that none of these records, as far as I’m aware, are OCRed.

Google’s mission statement is, “to organize the world’s information and make it universally accessible and useful.”  To that end, they have organized and made useful map information, yellow-page style information, and even patent filings.  But, at least as far as I know, they haven’t made any push to organize and make universally accessible the petabytes of data out there that are ostensibly public records.

It is certainly beyond the scope of this site, or even one person, to do that.  But in my field, I believe I am most hampered by, and my clients are most encumbered by, the delays and expenses related to acquiring information.

Though I have no specific plans yet, I would like to call on other legal bloggers, and other legal practitioners to work on creating repositories for public records so that they can be accessed in a manner consistent with what Google wants.  I hope this doesn’t create a wave of briefing plagiarism; rather, I hope it creates a more consistent feel for what’s going on throughout the state in the field, and more consistent application of the law throughout.

To the extent it will function that way, my software will enable you to do something like a Shepards search, but only on laws created beginning in 2008.  I have neither the resources nor the ability to go backwards.  It will also link to whatever information is on the Internet, including blog postings.

Please continue to share your feedback and thoughts with me–as I told one reader, it is that interactivity that makes blogging powerful and useful.  I’m hoping to carry that exponentially further.

Due to the slow week last week, I don’t have enough worthwhile to say to create a Podcast. We’ll be back next week with a new Podcast.

Briefly noted:

• DHS retracts no-match letters in wake of court’s ruling.
• Torrey Pines will be argued before the Supreme Court on December 6th 4th (Thanks, Michael!).
• The U.S. Supreme Court will hear the case of Sprint/United Management Co. v. Mendelsohn on December 3rd (h/t California Labor & Employment Law Blog*)

* Good thing I renamed my blog a few years back, isn’t it? (;

California Labor & Employment Law Blog: Have a Good — But Not Too Good — Time at Your Company Party
WageLaw: Is CAFA Increasing the Scope and Number of Wage and House Class Actions?
[Unintended consequences–also technically last week’s, but I didn’t read it until now, so there!]

Also, don’t forget this week’s podcast.

Happy Thanksgiving!

Genomic discrimination, Torrey Pines, and more on Gattuso.

 

 Standard Podcast [2:12m]: Play Now | Play in Popup | Download

Kent Sprinkle: More on Brinker.
WageLaw: Let Us Count The Ways [re: DLSE]
Workcite: The Inside Scoop: What The EEOC Says It Wants To See In Employer Position Statements

(I keep a copy of all of the DFEH’s manuals on hand myself.)

There was no podcast this week, due to the holiday.

Have a great pre-Thanksgiving weekend!

h/t The Laconic Law Blog (Eric A. Welter)

The Wall Street Journal’s law blog asks “Is Arbitration The New Litigation?” itself citing to a Financial Times article which highly touts arbitration.  The key quote, to me, is this:

As the incidence of court trial has decreased, some trial lawyers have moved into arbitration,” he says, adding that they have “brought more and more of the tools they used in court into the arbitration process”. That has helped make arbitrations longer, more complex and more costly, leading to a situation where “arbitration is the new litigation”, he says.

First, yes, arbitration can be in fact just as costly, and in some cases may take longer.  You have to compare it to the forum you’re in.  Where I practice, the courts are busy, of course, but you can get a trial in a year.  That is not the case in many, many other forums.  Second, in California, at least, arbitration only really gets you the benefit of no jury, which employers often feel are intrinsically biased against them.  Again, in my opinion, the benefit of that varies by forum and issue.  I do not give a blanket pro-arbitration recommendation, as the FT appears to.

The question I can never seem to find the answer to is simply this: given established law, is it worth it for companies to go to the Supreme Court(s) to defend their arbitration clauses (at least in California)?  I could have told Circuit City they had a snowball’s chance in Gentry.  Clearly, that’s–as they say in the service–above my pay grade–they may have some non-checkers chess strategy I’m not privy to or incapable of understanding, but just in dollars, I don’t see it.

As expanded as the FAA has become over the years, and leaving aside questions about arbitration firms allegedly being afraid to piss off big corporate clients, the fact is that in our Constitutional system, there are limits on what these arbitrations will ever be able to achieve.  That goes double in California.

The English legal system, for example, has been able to adapt to these inefficiencies because the Supremacy of Parliament allows their Constitution to be modified with the times more easily.  I’m not saying we should abandon our Constitution, by any means–but I am saying that if that’s our playing field, there are limits.

Within the scope of employment law, we do have some models.  We have the WCAB, which is probably as universally loathed as the DLSE, but that’s probably because employers have no memory of being sued in civil court for worker injuries.  And, then there is the DLSE.

I would contend that all of these problems–delays in the courts, problems with the administrative agencies–are because of understaffing and underfunding, and neglect by the Legislature.  Employees need their wages; employers don’t want to be targeted by class actions for good faith mistakes–everyone seems to have an interest in efficiency, and arbitration is no longer a panacea for that problem.

With the snow-balling arbitration blow back in full effect, and with no signs of not turning into an avalanche, people should start at least thinking about alternatives.

There will be no podcast this week.  I hope everybody had a wonderful weekend.

I sincerely appreciate this endorsement from WageLaw, a blog I read every day.  Thank you very much. The feeling is mutual.  WageLaw contains a ton of in depth analysis, and is not a transparent vessel for marketing like so many others out there.  If you’re a practitioner in this field, it’s a must read.

Due to the unbelievably high amount of content being scraped from this site, I have formally posted a terms of use page. I feel silly doing it, but, the idea that content that I have worked to generate is being posted, often without attribution, on some robot-generated site in order to generate ad revenue is not right.

I will be pressing my rights against any content scrapers.

This doesn’t mean I’m going to sue you if you quote my article, or anything like that. This is directed at robot-generated sites who copy my content in order to generate ad revenue. If you haven’t heard of this Google it, because it’s happening to your site too.

LA Times: State pursues Anaheim firm [work comp]
Sac Bee: Pot Case Test Workers’ Rights [Ragingwire]
WageLaw: Supreme Court Reverses Gattuso
James Peters: California Supreme Court Hears Argumenst on Employees’ Medical Marijuana Use [Ragingwire]

Never be shy about sending me links if there are good ones I’m missing.

Also, don’t forget this week’s podcast.

Have a great Veteran’s Day weekend, and don’t forget what that holiday is all about.

I’ve now had a chance to more fully digest the Gattuso opinion. The issue that it resolves is actually rather narrow, and of little utility in either enforcing employee rights or giving compliance guidance to employers. It’s almost useless.The advance-sheet summary of the case is that Labor Code 2802 reimbursements can be paid in the form of a higher salary or commission, so long as there is a formula. Omitted from that summary is that

[i]f the employee can show that the reimbursement amount that the employer has paid is less than the actual expenses that the employee has necessarily incurred for work-required automobile use (as calculated using the actual expense method), the employer must make up the difference.

(Slip. Op. at 16.) (Emphasis added.) What’s more, even though

as with other terms and conditions of employment, a mileage rate for automobile expense reimbursement may be a subject of negotiation and agreement between employer and employee. . . any agreement made by the employee is null and void insofar as it waive the employee’s rights to full expense reimbursement under section 2802.

(Slip. Op. at 17.) (Emphasis added.) What the Supreme Court has done here is, instead of creating a clear rule to follow like they did with “enhanced wages are okay,” they made an extremely fact intensive analysis, subject to lots of error for any employer who misses something in its calculation. Instead of creating a safe harbor, they’ve destroyed the jetty.

The IRS rate isn’t good enough, even though the DLSE and just about everyone else is happy with it. It may be highly impractical to ever conclusively show that the reimbursement is enough, given, as the court points out, the differences in makes and models of car, costs of insurance, fluctuating gas prices, etc.

The California Supreme Court also takes yet another shot at the DLSE, reminding us all that their Opinion letters carry no weight, except when they do.

On the surface, this appears to be a “pro-employer” opinion. It’s not–it’s a disaster, and it will make issues of proof very complicated in any 2802 case–maybe even per se summary judgment proof.

UPDATE:Is this an overreaction? It’s been pointed out to me that this doesn’t change much, except perhaps eliminating the former presumption that the IRS rate was ok. I see every Supreme Court case as being a bad result if it doesn’t give a good rule to follow, because so few cases make it that far. By not viewing the world through the lens of black and white, there are those out there who want to comply–if they just knew how.

The Sacramento Bee had an interesting article on Ross v. Ragingwire this morning, which is the case about whether a positive drug test for state-legal marijuana is grounds for termination. The Supreme Court heard arguments yesterday.

Justice Joyce L. Kennard said the issues before the court do not simply weigh the use of “illegal drugs.” “Under California’s Compassionate Use Act, this particular use … is allowed,” she said. “What we have is a conflict.”

Indeed. It seems pretty clear to me that that conflict means the federal law wins, and, not unlike the no-match letters, it would put a lot of employers in damned-if-you-do, damned-if-you-don’t situations. Thing is, it also puts employees in the same kind of position, doesn’t it? The article is focused on the medical marijuana issue, because that’s more interesting to the newspapers. My hope is that this adds new dimensions to Tameny claims, which, ironically sprang from an employee’s unwillingness to do an illegal act. Paging Alanis Morrisette.

I will add this to the track list. Its current procedural status is “under review,” so, red.

You can watch the oral arguments, here.

UPDATE:

After watching the oral arguments, I would say that we should be prepared to see Ragingwire overruled. With one justice absent, and many mostly silent, it’s hard to speculate. Of the six there, I saw two to overrule, two on the fence, and two to affirm.

I would say that I thought Ross’s counsel had the better of the argument, but was, to be fair, thrown a number of easier questions. I thought that it was interesting that the issue of illegal aliens was only touched on for a very brief moment, when that seems to be the perfect analogy: state law extends them certain benefits; federal law prohibits their presence, and this exact conflict is very much on everyone’s mind with the no match issue—yet this was almost never discussed.

I’m not sure what result will cause less problems for the people I represent. Before, I was certain it was one way; now, I’m not so sure.

UPDATE II:
Upon further reflection (and not having read the papers at all), I’m surprised that the parties didn’t touch at the main question here: sovereignty. This is not a question of the FEHA or California common law as much as it is a question that relates to conflicts of laws and sovereignty. Yet, unless I’m forgetting something, that was not discussed at all in the oral argument.

In general, states are free to regulate the health, safety, welfare, and morals (i.e., the police power). Though apparently, the commerce clause issues opened by the Lopez case have been re-liberalized, what really needs to be looked at here, in my humble opinion, is whether the Federal CSA, even if allowed under purely intrastate grounds, means that all state laws necessarily contain it in some “implied” form.

I’m not an expert, or even a novice, on this kind of law, but, to me, this issue, and the illegal worker analogy, seem to be closer to the crux of the issue than whether it’s a “prescription” or a “recommendation.”

WageLaw has an interesting update on Brinker, including a copy of the DIR’s request for publication.They note that:

Proving that it is now little more than a political spoil, Labor Commissioner Angela Bradstreet also sought publication of the opinion, even though it contradicted a long-standing DLSE position (taken when the GOP did not control the DLSE’s policies).  

The DIR has not returned multiple requests for comment on this matter.  The DIR assures me my request has been forwarded to “the appropriate person,” but I’ve heard nothing. 

This is a pro-employer decision allowing for Labor Code section 2802 reimbursements to be made by base salary or compensation increases, provided there is a method to the apportionment.

More to come. . . (We’re busy today!)

You can read Walsh & Walsh’s extended take here, or Shaw Valenza’s here. If I have anything to add, it will be up this week.

UPDATE:  Nice prediction on this by Walsh & Walsh, by the way.  Good job!

Just a few notes about the past week.

 

 Standard Podcast [1:08m]: Play Now | Play in Popup | Download

Wage Law: Compensable Time Under the FLSA [Very Comprehensive linky goodness]
Jottings By An Employer’s Lawyer: Not Quite Halloween, But Still A Scary (MDV) Story
That’s What She Said: Branch Wars

And don’t forget this week’s podcast.

Have a great weekend!

At the request of the Court of Appeal, review is granted on this court’s own motion. The cause is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its opinion and reconsider the matter as it sees fit. The petition for review is denied as moot. The requests for publication are denied as moot. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ

Interesting. I was hoping for a meatier opinion. Maybe that’s what we’ll get.

UPDATE: This is also interesting. The Court of Appeal asked the Supreme Court to deny all of the requests for publication, but look who one of the parties requesting publication was:

That wouldn’t have anything to do with Miles Locker’s involvement as amicus curiae for the other side, would it? I’ll try and find out more.