SB 1539 has been neutered to simply express the Legislature’s intent to address meal and rest periods, and is in procedural limbo.

SB 1583 (independent contractors) has passed the Senate and is in Assembly Committee.  This is the “don’t advise people to do sham independent contractor arrangements” bill.  It has been modified to exclude legal advice given by lawyers in most circumstances.

AB 2134 (conforming state and federal leaves) has been passed by the Assembly and is in Senate Committee.  This might have a chance of signature.

AB 2279 (overruling Ragingwire) passed the Assembly and is in the Senate Commitee.

As noted, AB 2716 (paid sick leave) has passed the Assembly and is in Senate Commitee.

AB 2879 (audits) passed Assembly and is in Senate Committee.

AB 2819 (credit reports for employment) passed Assembly and is in Senate Committee.

Workplace Law Prof: Summary Judgment in Discrimination Cases.

Also, the unemployment rate is up.  Will we see a spike in employment litigation?

The Artaega court states:

[T]hough temporal proximity, by itself, may be sufficient to establish a prima facie case of discrimination or retaliation, it does not create a triable fact as to pretext once the employer has offered evidence of a legitimate, nonprohibited reason for its action.  This is especially so where the employer raised questions about the employee’s performance before he engaged in protected activity, and the subsequent discharge was based on those performance issues.

(Slip op. *2).  If you’ve ever defended a case where someone gets canned in the same week as they announce a disability  (but within a day of an employer finding out, say, it just lost 75% of its profitable business), this will be a welcome addition to your list of cases to refer to.

The weakness in this reasoning is that there is nothing conclusive about timing per se.  Surely, it augments the realities of other existing facts–even indirect inferences.  This goes to the problems of the McDonnel Douglas/Burdine framework that has been kicked around recently on some academic blogs and in some federal court opinions.  Yes, employers will try to hide or lie about direct evidence, so it’s proper to infer discrimination–but why is that different in discrimination contexts than any other application of indirect evidence, like intent?

Of course the law almost totally ignores the realities of what this means in practice: it means cases can get to juries hinging on almost nothing, with the burden of proof more or less already shifted against the Defendant, so, evidence or not, the “nuisance value” of such a case is much, much higher than it otherwise would be.

The advance sheets missed this snippet:

We conclude that the disability discrimination claim fails because the employee’s symptoms did not constitute a “physical disability” under the FEHA.  Specifically, the employee’s pain and numbness did not make it difficult for him to achieve the life activity of working.

(Slip Op. *2.)

The court engages in a lengthy discussion from Slip Op. 17-24.  Try finding much case law on the bottom limits of what is a disability under the FEHA.  There isn’t much.  This case is just as important for that precept as the former.

Other sites have commented on this case fully enough.

I would just add that in circmstances like these, you might ask a colleague who is not involved in HR/labor issues what they think something means before you get whacked on appeal like that.  Having said that, it seems like this may have been a deliberate test case.

The City & County of San Fransisco has enacted a similar ordinance.

The Sac Bee has more.

Ed Zelinsky criticizes the advent of state-run retirement plans. (h/t WorkPlace Prof Blog)  AB 2940, which is California’s version of CalPERS for all, is currently up for a floor vote in the Assembly after passing out of committe 12-5.

Shaw Valenza LLP on California’s first “kin care” case.

WorkPlace Prof on a backlash against the anti-ADA backlash.  Veterans will be at the forefront of that conversation.

Shaw Valenza LLP on developments in “same actor” presumptions.

James Peters on a study showing discrimination policies are often poorly communicated.

WageLaw: DLSE withdraws all precedential decisions.  I say this with all due respect, but one wonders if this agency isn’t deserving of being the victim of the state’s budget crunch.  When the line-level employees (many of whom are competent, intelligent, and do their work in good faith) charge hard for employees, only to have their actual cases argued against in appeals by their bosses, one wonders what’s going on.

I can’t answer all of those questions, of course.

But notwithstanding a ballot initiative that doesn’t face favorable terrain this fall, this is now the law, and, so, just in case you were not already doing this, treat domstic partners as spouses.

WageLaw:

Wage and hour lawyers are talking about a law and motion ruling made last week by Orange County Superior Court Judge David Velasquez, holding that waiting time penalties under Labor Code § 203 were recoverable as restitution under Business & Professions Code § 17203. In Ybarra v. Aramark Corp., No. 30-2008-00180008-CU-OE-CXC, the court treated section 203’s “wages of the employee [that] shall continue as a penalty” as ordinary wages.

This, of course, will touch off a big hullaballoo.

This particular statute is even more ambiguous than the meal/rest breaks because it says, “the wages of the employee shall continue as a penalty.”  This could mean it’s both a vested wage and a penalty, the latter being unavailable under the UCL.  Of course, this is a smaller issue because it is automatically capped at 30 days, but still raises all of the other questions that the rest/break “premiums” did, and it continues a trend.  The latter fact may be the most alarming for the defense bar.

I admire this lawyer’s creativity, even if I think this ruling isn’t correct and will only add fuel to the blowback fires that are already burning.

The always excellent UCL Practitioner has the order, here.

It’s more than a trend at this point, it’s a new rule: that person you think is in an independent contractor, isn’t.  When you’re doing a business-to-business transaction, you know it.  You don’t think there’s a chance for you to pay overtime to the Verizon guy that comes and sets up your DSL, right?  And if you do, you don’t set him up with a computer, a copy of quickbooks, and a business name, do you? No.

California Labor & Employment Law Review has an excellent article on jerks in the workplace and its associated costs, and the potential laws that would be created to address it. I would be extremely surprised if any tooth-bearing version of the “Healthy Workplace” bill, which would untether harassment claims from protected statuses.

Under existing law, you can get workers’ comp is you suffer emotional distress, or pursue other remedies if it gets bad enough.  The counterargument of course, is if it’s really costing money, business will naturally eliminate it.  And the courts have said for a long time they aren’t HR deparments of appeal–that’s what they’d become if that law passed.

WageLaw: Bell v. Sup. Ct. depublished.

CalBizLit has a concise summary of the circumstances under which defendants may (theoretically) claim attorneys’ fees in FEHA cases.

There was more good stuff this week, but I’ve been busy.

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.

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]

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.

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.