The 2009 legislative sessions in both Sacramento and Washington, D.C. have yielded significant developments for labor and employment law.

Both? I would say, on the contrary, the 2009 legislative session in Sacramento was probably the least eventful of the decade in developments “for” labor and employment law.

Share it:

Hide Sites

So, I thought I’d point to this post from Robin Weideman on Dowell v. Pacesetter, Inc., a case which is more or less unremarkable, except that it is part of a continuing trend from the Court of Appeals: quit trying to make exceptions to B&P 16600.

We saw this earlier this year in TRG v. Galante and FLIR Systems v. Parrish. I noticed that I was hoping in my FLIR post to see the TRG ruling in July, but it came down in August.

Share it:

Hide Sites

I find this interesting because what I have termed in the past “arbitroskepticism” seems to be a contrarian point of view, but it is increasingly gaining traction among lawyers who blog. The simple logic was always this: if the forum really was so advantageous for employers (or any one side, whoever) how long could it really be before the courts and/or legislature took notice. Added to that was, where’s the data?

And of course, the Courts took notice long ago.

Share it:

Hide Sites

Firefighter Disparate Impact Suit Filed against New Haven

So, the upshot of the politicized Ricci decision is that there can be more racial demagoguing completely out of the context of Title VII, and that’s fun for cable news. But this puts employers in the position of not being able to remedy a mistake in EEO compliance without being liable to someone, one way or another. Good thing the U.S. Chamber of Commerce is spending its membership’s dollars arguing that the earth is flat instead of lobbying on this nuts and bolts kind of thing that will affect everyone subject to Title VII.

Share it:

Hide Sites

The thing is, are you willing to be the first lawyer that goes really lean on your briefs? Are you a partner?

Until there is a massive state-wide trial-court-level implementation of the demands in this decision, we don’t dare risk it. Do we?

[Doc file] Nazir v. United Airlines

Share it:

Hide Sites

Please remember that Rosh HaShanah begins on Friday night and that Yom Kippur is Monday, September 28. Please also remember that you don’t get to set the level of observance for your employees, so just because you see them eating a bacon cheeseburger while carrying fists of cash around on Saturday doesn’t mean that they can’t observe these days. (You want Christmas off, right? When was the last time you were in church?)

As I said, levels of observance vary. Just in case, I should also mention that Friday October 9 is a day that traditional Jews would not do any work for sukkot, or the Feast of Tabernacles.

L’shanah tovah.

Share it:

Hide Sites

AB 527 is awaiting action by the governor.

The rest are dead for this year, and the Governor is saying he’s going to veto everything anyway. My guess is that we won’t need to write any “new law” updates come 2010 other than the ongoing look at the courts.

Share it:

Hide Sites

No movement in the last little while on any bills that I’m tracking for changes to California employment law. Most of them are alive in name only.

Share it:

Hide Sites

My only comment is that the courts could eliminate a lot of so-called “trade secrets” litigation and other back-door attempts to create and enforce covenants not to compete in California by continuing with the trend of cases we’ve seen this summer, including TRG and Flir.

The Legislature is free to reconsider Bus. & Prof. Code 16600 at any time. It can also add more teeth to the UTSA if it wishes. But as written, those statutes allow for employee mobility, but with remedies for intellectual property theft. They do not provide for entrepreneur-killing bad faith lawsuits. I’m glad to see the Court of Appeal is going to make people think twice about that.

Share it:

Hide Sites

I thought I’d point out this quote from Justice Louis Brandeis:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). Some people might find this disturbing. Brandeis was talking about the federal Constitution and he was actually arguing against relying on stare decisis in that instance. There are a lot of objections you can make to this statement. In many circumstances, it’s better to get it right than have it settled. But in the domain of the California law as it relates to employers and employees in their relationship as such, the helter-skelter pace at which significant changes in the law occur both from the courts and the legislature puts us squarely in a position where we need things to be settled more than we need them to be settled “right”—whichever your view is.

The costs of compliance are one thing. The cost of re-complying, or attempting to comply with unclear rules, are another.

Share it:

Hide Sites

My analysis will be forthcoming shortly.

UPDATE:

The Court correctly identifies the distinguishing factor that made Saunders such a useless precedent: the “invader” in that case was not a co-worker. (Slip Op. 19-20.) The Court then lays out a spectrum between highly “public” areas of the workplace, and highly private areas, such as locker rooms (the latter are subject to an express statutory protection). But do employees have some reasonable expectation of privacy in a closed office? Yes.

Such a protective setting generates legitimate expectations that not all activities performed behind closed doors would be clerical and work related.  As suggested by the evidence here, employees who share an office, and who have four walls that shield them from outside view (albeit, with a broken “doggie” flap on the door), may perform grooming or hygiene activities, or conduct personal conversations, during the workday.  Privacy is not wholly lacking because the occupants of an office can see one another, or because colleagues, supervisors, visitors, and security and maintenance personnel have varying degrees of access.

(Slip Op. 21-22.) So, you would be mistaken—as I was—to go with the Court of Appeal in Saunders and suggest as a blanket rule that employees have no expectation of privacy in the workplace from their employers only, except for those areas specifically designated by statute. The Court apparently finds this kind of privacy in a “penumbra” analysis (i.e., the opposite of limiting the circumstances to an enumerated list) of legislative acts, such as those prohibiting changing room and other “peeping tom” behavior. The Court hints in dicta that a properly drawn policy might have abolished the expectation of privacy. Of course the problem here is that notice of surveillance basically destroys its utility.

The Court then engages in a lengthy factual analysis and concludes that because Hillsides was very careful about what they spied on and how, that even though this wasn’t necessarily the least intrusive means, because it served a legitimate purpose it was ok.

Privacy rights in California have always been all about balancing tests, which means that it’s very hard to know what to do in any given situation. Here, it looks like the message is that you can monitor an office to catch someone breaking the rules if you don’t create too much of a dragnet. How egregious the violation must be and how careful you have to be aren’t 100% clear to me.

It’s also not clear to me what would have happened if the Plaintiffs had been caught on tape in the following different circumstances: (1) doing nothing important; (2) doing something like changing; or, (3) being caught as the guilty party. Nor is it clear to me what effect scenario #3 would have on the liability for scenarios #1 or #2.

My sense is the Court did not like this case because it saw the Plaintiffs making a mountain out of a molehill. So, instead of taking the opportunity to expound some law in detail, they engaged in a fact-intensive analysis in order to dispose of this case. Oh well.

Share it:

Hide Sites

A Sacramento judge who fought the once-a-month court closures approved earlier this week by the state Judicial Council said Thursday the action is unwarranted locally and will result in monstrous new backlogs.

From the Bee.

Share it:

Hide Sites

This will affect all of your filing deadlines, because these will not count as court days. At least they settled on a uniform day, state-wide. Our local presiding judge explained to us that Wednesday was chosen due to criminal arraignments needing to be processed in a certain amount of time.

So, this will slow down the law and motion calendar in civil. It may be just a little, but it seems to me like the idea of filing to trial in one year for unlimited civil cases is getting less and less realistic. I know some judges don’t mind going to Track II, but some really, really don’t want continuances.

I think it’s time to reconsider these time lines and the civil law and motion filing deadlines based on this.

UPDATE: Apparently, the furlough days will be treated as holidays, extending deadlines by a day.

Share it:

Hide Sites