The materials linked on this page are an interesting read.

The best thing about this initiative is that it focuses on employer compliance, which is simultaneously most effective for employers and least effective for attorney billings.  Littler correctly sees the potential for its own earnings, and the truth of compliance being the best approach, as a big part of the way forward.

Also interesting is Appendix D, which is part of a questionaire Littler uses when doing audits.  Over the years we all develop our line of questions, but having it carefully systematized like that helps a lot.

Since I’ve started looking at potential cases on the Plaintiffs side, I’ve noticed that I focus on a few things a little bit differently.  One of those agrees with this statement in Littler’s materials: namely, that in any intake situation involving an employee, the attorneys quickly turn to wage and hour topics, no matter what the conversation starts with.

Ignoring potential sweeping reforms for a minute, what is to be done?  As things stand right now (in California) arbitration is basically becoming less effective by the day, and does not prevent class actions.  No one seems to think that the DLSE is an option, and bills trying to make it so fail. This situation puts plaintiffs in court and making class action allegations based on the “micro-technical” violations.

Littler’s white paper gets the answer right as far as I’m concerned: “total compliance” on the inside.  It’s really the best option under every employer’s own power.

Are BlackBerry/PDA lawsuits on the horizon? [Workplace Prof Blog]
Computer says, “yes.”

WageLaw: Another U.S. District Court rejects DLSE’s affirmative duty requirement regarding rest and meal periods.
I’m not sure why the District Courts aren’t following Cicairos.  There needs to be some sort of compromise on this issue, ultimately.  Is there a way that we can make sure employers provide breaks required by law without micromanaging employees’ routines?

Grad student bargaining rights embedded into law? [Workplace Prof Blog]

h/t Workplace Prof blog

This case states what I and others have long believed: the McDonnell Douglas requirement of a prima facie case is really nothing more these days than an unnecessary distraction.  This case is therefore significant because not only does it state that conclusion so bluntly, but also because it was joined both by Chief Judge Ginsburg of the D.C. Circuit and by labor law judge extraordinaire, Harry Edwards.

We’ll see if this gains any steam.  California’s jury instructions and case law have already mostly relegated that framework to motion practice, but it’s still there.

There are also some interesting comments at the above link.

Colorado to do away with “at-will” employment?

Carleton DiSante & Freudenberger on SB 1539.

The Sacramento Bee has an article on AB 2716’s mandate of offering sick days.  The bill’s author claims that mandated sick days would save business money on turnover costs and protect employees.  CalChamber is against it, and they are batting almost 1.000 with the incumbent Governor.

The U.S. Department of Labor is joining the San Franscisco universal healthcare program fight.  On the side of the employers, according to the San Francisco Chronicle. What’s interesting is that the DoL lawyers are joining the argument that federal law preempts the police power claimed by the City & County of San Francisco.  The federalism revolution is truly dead.

This case essentially held that the frivolous claim by the employee subjected the employee to liability for the employer’s attorneys’ fees because he failed to enter evidence that he couldn’t pay.

Question:  is there anyone out there who has ever heard of a small employer making the same argument?  I’ve represented a number of smaller companies or sole proprietors who could make that argument.

Something tells me not to hold my breath for a reply.

This week, the Legislature moved on all but one of the bills we’re tracking.  SB 1192 appears dead.  SB 1539 and 1583 passed their senate committe votes.  AB 2134, 2279, 2716, and 2879 passed assembly committees.  For a list of what these relate to go here.

SB 1192 was intended to reverse Murphy. Didn’t seem likely in the first place.

P.S. Yay! My tag links have been fixed!

Reading Tea Leaves On San Francisco Preemption Decision at Workplace Prof Blog.  Apparently the same panel that stayed the District Court’s decision enjoining the city’s universal health care plan will be hearing the full matter.

Employer favorable “make available” case?  [h/t Robin Weideman]

LA Times: EDD overwhelmed by flood of applicants.

San Jose Mercury News: It’s not Medi-Cal for all, it’s CalPERS for all.

SF Chronicle on Lonicki.

The “Butt Painter” settles his lawsuit for $65,000.00.  In short, a teacher was discovered to be painting with his derriere, and was fired.  ACLU took that case saying it violated 1st Amendment.  People are asking why so much.  In California, I think he might have gotten more.

WageLaw on Isner v. Falkerberg/Gilliam & Assoc., Inc. No pay for on-site property managers.

I’m still working on the tag problem.  Still no idea.

From Workplace Prof Blog:

Remarkably, state appellate courts confirmed only 56.4% of employee wins in arbitration. But when the same courts ruled on employer victories, they confirmed 86.7% of awards. The difference in rates was statistically significant. Similarly, federal appeals courts upheld 85.7% of employer wins. Lower courts behaved like appellate courts. These state courts confirmed only 77.6% of employee wins, while federal district judges enforced 92.7% of these awards.

The author, Prof. Michael LeRoy of the University of Illinois, suggests these two items as a solution: “Judicial review of awards in all courts should be limited to the four explicit FAA standards” and “arbitration losers who incur liability should be required to post judgment bonds if they challenge an award.”

That sure goes against what I’ve perceived to be the CW (specifically, that employees are doing everything they can to get out of arbitration and into the courts, probably so they can get a jury).  Arguably, this article is addressing a problem that arises after that determination has been made.  But, if the courts deem the process or arbitration to be fair and equitable enough not to disturb its awards, except in extremely narrow cases, why would they feel compelled to boot borderline cases out of arbitration in the first place?

The recent line of cases, at least in California, suggests that appellate courts here have lost almost all faith in consumer and employment arbitrations and seem only to suffer them because of the federal enabling legislation.  The flip side of that is a willingness to engage in more searching judicial review of a process which they do not think is fair.

This also forces me to rethink, at least a little of my employer-side arbitroskepticism®.  So, if you can compel the arbitration, and if you prevail, you probably will get your win confirmed (which is something like avoiding an appeal).

I’m replacing high-bandwidth, low-usage podcasts with posts. Here’s the first one.

• Last week, we took a look at the Metters case: another arbitration agreement is thrown out by the courts.  A number of BigLaw summaries of this case advised clients to review their arbitration agreements and the procedures related to getting them agreed to.  I disagree.  Even before these recent cases, it was apparent that arbitration agreements were getting rocked by the courts.  What it’s time for is an in depth study of the actual cost savings, forum by forum, versus the risks and the opposing costs (including recurrent legal fees keeping the agreements and procedures up to date).  If someone would publish that, I wouldn’t be surprised to see that, as often as not, it’s of little or no benefit to the employer.

• The Legislature has introduced bills to overturn a couple of last session’s big cases.  AB 2279 would overturn Ragingwire (FEHA does not protect medical marijuana usage).  SB 1192 would reverse Murphy (missed meal and rest period payments are not penalties).  You all are aware of my mixed prognostication record, but I would predict SB 1992 dies in commitee and AB 2279 dies on the Governor’s desk.  I wouldn’t be surprised if the latter ended up as a ballot initiative.

You may have noticed that all of the tags and many of the links are not working right now.

You probably didn’t notice that I both upgraded the site to WordPress 2.5 and moved it to a dedicated server (which I had to configure myself).  Some combination of these two invisible changes are contributing, I’m sure, to the broken links.

I’m working on it, but I have no idea what the problem is at this time.

SB 674 (Dutton) - Incentives for employers who provide health care and other benefits.
SB 737 (Caleron) - Legislature’s intent to clarify meal and rest period law.
SB 940 (Yee) - Temporoary employees must be paid more frequently.
SB 953 (Wyland) - Ministerial changes to alternative workweeks.
SB 1192 (Margett) - Would reverse Murphy.  Wage premiums are penalties.
SB 1244 (Alquist) - No retaliation if a family member or co-worker files a wage claim.
SB 1283 (Harman) - Some leniency in final paychecks for outside accounting departments.
SB 1489 (Kuehl) - Ministerial changes to leave laws.
SB 1490 (Padilla) - Independent contractors may request a determination from the EDD regarding their status when hired.
SB 1539 (Calderon) - Interpretation of IWC orders re: meal periods mandatory after 5 hours.
SB 1583 (Corbett) - Advising someone to hire independent contractors makes you jointly liable for the remedies against the principal.

AB 1989 (Swanson) - Expands WARN act to include offshoring.
AB 2075 (Fuentes) - Off-the-clock hours would be equivalent to signing flase wage release.
AB 2134 (Swanson) - Would conform state and federal family leave.
AB 2279 (Leno) - Reverses Ragingwire: no discrimination based on medical marijuana usage.
AB 2421 (Huff) - Investigation and prosecution of complaints of employment of unauthorized workers.
AB 2530 (Duvall) - Would exclude certain transportation employees from meal period orders.
AB 2716 (Ma) - Paid sick leave for everyone.
AB 2719 (Jeffries) - Would exclude employees investigating workers compensation fraud from meal period orders.
AB 2874 (Lieber) - Removes penalty limits for violations of CRA2005.
AB 2879 (Leno) - Labor Commissioner audit triggers.
AB 2888 (La Malfa) - Sex offenders cannot work in certain fields with minors, fines related thereto.
AB 2918 (Lieber) - Would restrict usage of credit information as a condition of employment.

Good post on Costco v. Sup. Ct. by Carlton, DiSante & Freudenberger.

Supreme Court denies cert on Gentry. [UCL Practitioner]

Walsh & Walsh on Startucks’ Barista Tip-gate

I’m back, and I fully intend on returning to my regular posting schedule.  However, the podcast experiment proved to be a lot of effort for a very small group of users.  I will try to replace it with a similar digest–but in post form.

In Metters v. Ralphs Grocery Co (4th Dist. No. G038380) the Court of Appeal upheld the trial court’s finding that no valid arbitration agreement was entered into by an employee who was told he had to agree to an arbitration in order to get Ralphs to investigate.