The Oakland Tribune has quoted an entry on this blog by Steve Chanley:

San Luis Obispo attorney Steven Chanley, a shareholder with the
Employer Advocates Group law firm, blogged about the case last
September: "It is difficult not to be sympathetic to the plight of
those who must rely legitimately on mind-altering drugs to mitigate
their physical pain. However, it seems a non-starter to argue that the
employment laws require an accommodation in the form of permitting
illegal drug use."

A reader writes:

I read your blog often, and I was surprised not to see an entry on the White case, where the Supreme Court will interpret the what adverse employment action is.

I’m not going to act like I have been all over everything lately, and I’ve let a few things slip by me (see my no-I-didn’t-yes-we-did on Ragingwire below, only to see it depublished). But it’s not that I haven’t seen that case. A few things, especially for new readers:

• I deliberately don’t blog federal cases; other sites do that better than I could even spending twice as much time. If you practice in California, you should worry about California rules first, anyway.
• Yes, sometimes federal cases inform California cases, or are even considered binding authority on a question. It’s up in the air often enough whether that will be the case, however.
• No decision has been issued in this one yet anyway.
• I deliberately also don’t blog every case. Unless I see it providing something meaningful (and it might be to you and not me) it won’t be here.

Welcome to the brand spanking new web-log!  I have gone back and forth on the issue of whether to switch to TypePad for months.  I decided to pull the trigger after yet another blogger outage.  A few points:

• I’ve changed the name.  I’ve put a lot of work into building this blog up, and I’m not too humble to do some branding.
• I will still cover certain "traditional labor" law issues as they arise, but that will no longer be a focal point.  This reflects the simple trend that only 9% of Americans are union employees.
• This was in fact the first blog to cover only California employment law issues only.  It is no longer the only one, so I’ve changed from "only" to "first."  Sounds just as neat to me.
• The ads are down.  It wasn’t doing me a whole world of good, and I was using "AdSense" a Google brand (just like blogger).  Until I even figure out how to integrate that into TypePad, it won’t be here.  It may never be here.
• The old site will remain up for a period of several months, but all of the archives are here.  The old site will stop syndicating at the end of the month.

Thanks for continuing to read!

Comment spam has become overwhelming. I hate to do this, but I feel that I have to require that only those who create a blogger account can now post comments. If you have something important to say and don’t feel like creating a blogger account, feel free to e-mail me.

So, first I had a stomach ailment, then a nasssty headcold. Now, tomorrow, I have jury duty. What a week.

The San Francisco Chronicle has this article:

Miles Locker has been suspended from his job in the Department of Industrial Relations for taking part in an informal “educational” panel hosted by the San Francisco Bar Association’s Barristers Club.

The panel’s topic: “Meal and Rest Period Litigation.”

So, does this violate section 96(k)?

An unfortunate confluence of work, personal, and family business have kept me very busy in the last two months. I’m hoping everything will be back to normal by September.

Over at the California Wage and Hour Weblog, check out this commentary on the recent precedential opinion involving section 226.7 remedies:

We debated whether to mention this DLSE memo, since it has no precedential value in the Superior Court, and, although well-informed defense firms will be using this as an argument to persuade the trial courts to change their minds about Section 226.7 wages, not all defense firms are so informed. But we see now that the dark side blogs are talking about it, so we might as well weigh in.

(Emphasis, as usual, added). And where does that “dark side” link go? Right here to CLEL. First, I resent the value judgment; second, that inappropriately pigeonholes me and my work, my firm and its work into a category that it simply does not fit in.

Ironically, this blog is posted by a firm that “represent[s] employers, and both individuals and classes of employees in litigation concerning discrimination claims, wage and hour claims, and disputes over working conditions. The firm’s goal is to bring the workplace of every employer and employee we represent into full compliance with California law.” A description that also fits me and my firm.

Since its inception over a year ago, I have always striven to “do my best to give objective, neutral commentary on these issues. This means I won’t be championing issues on the side of the plaintiff’s bar or the industry side. That’s not the point. There are thousands of blogs that amount to an un-edited, narrowly read op-ed page.”

To the extent that I have deviated from that, I have been unabashedly critical of many ( for example here, here, here, and here) “pro-employer” decisions, and the “shock and awe” tactics used by big defense firms in their marketing. I have also provided free advice to employees, and been attacked for being too pro-employee in many of the comments above. The irony is killing me. I’m attacked by both sides. Must mean I’m doing something right.

Nevertheless Walsh Skywalker has accused me of joining the dark side.

Signed,
Darth Jonerikus.

Thanks to all my readers! It’s hard to imagine when you start and you get 300 hits a month that you’ll get that many in a day. I’m thankful that people read. Please continue to provide feedback so that I can improve!

There has been an unprecedented level of activity on this page this week. For those of you that are new, welcome! I thought now would be a good time to revisit my “mission statement” for this page. I started this “blawg” on July 1, 2004.

Here’s what I initially set out to do:

I plan to include more than case law summaries and analysis. Law and lawsuits don’t exist in a bubble. There are political and economic forces at work that shape them. To the extent I believe there is a causal nexus, those things will be covered as well. This will include at a minimum, tracking and discussions of pending bills in the legislature (and, sometimes, in Congress), and discussions of economic indicators that are relevant.I am going to do my best to give objective, neutral commentary on these issues. This means I won’t be championing issues on the side of the plaintiff’s bar or the industry side. * * *

This is also not a blawg of record. Not every issue will be documented, largely because they are already so well documented.

I think I have mostly lived up to that over the last 11 months. I’d like to add some new parameters. I have not covered “traditional labor” issues, because I think those are well documented elsewhere. I had planned to cover the NHL lockout more closely than I have because it has some interesting dimensions (first and foremost, the union has a lot of wealthy members) and interesting implications. I haven’t found much to add to the narrative there, though.

My niche has become the evolution and development of the labor laws of the state of California, and I hope to continue to follow that path.

Any input is appreciated and welcome!

P R O F E S S I O N A L__S U M M A R Y

JON-ERIK G. STORM

Jon-Erik G. Storm is an associate with Employer Advocates Group LC (“EAG”) in San Luis Obispo, where he practices employment litigation and counseling. He is the creator and editor of the legal web-log, “California Labor & Employment Law,” http://calemploymentlaw.blogspot.com, the only web-log devoted exclusively to all aspects of California Labor and Employment law.Mr. Storm has a broad range of experience representing employers in civil, administrative, and appellate litigation, where he has won a number of dismissals and other victories for his clients. Mr. Storm also has wide-ranging experience providing consultation and advice to employers, assisting his clients with the ongoing development of their employee and human resource policies as well as assisting them with day-to-day matters. Mr. Storm represents the full spectrum of clients, from Fortune 500 corporations to individuals, and understands the differing needs of a diverse clientele.

In addition to his blog, Mr. Storm has also been published on varying subjects of employment law in different media. Mr. Storm’s analysis of a recent assembly bill in the legislature was published in the May 2005 edition of the California Labor & Employment Law Review.

Prior to joining EAG, Mr. Storm was a judicial extern for both the Honorable Lloyd King and the Honorable Robert J. Faris, Chief Judge, at the United States Bankruptcy Court for the District of Hawaii. Mr. Storm received the Chinen Award for his exemplary service to Judge King and Judge Faris.

Mr. Storm is a 2003 graduate of the Illinois Institute of Technology’s Chicago-Kent College of Law. During law school, he received two CALI Excellence For The Future Awards for outstanding academic achievement, and was an Editor of Fiat Justitia, a journal of law and policy. Mr. Storm also founded the Chicago-Kent chapter of the American Constitution Society For Law and Policy.

Prior to law school, Mr. Storm attended Pitzer College (B.A., 1999), a member of the Claremont Colleges, and Claremont Graduate University (M.A., 2001), where he studied Philosophy.

Mr. Storm is a member of the American Bar Association, the San Luis Obispo County Bar Association, and the Labor & Employment Law Sections of the State Bar of California, the Los Angeles County Bar Association, and the Bar Association of San Francisco. Mr. Storm founded and chairs the Young Lawyers Section of the San Luis Obispo County Bar Association.

He is licensed to practice law before all of the courts of the State of California and the State of Minnesota. Mr. Storm is also admitted to the bar of the United States Courts of Appeal for the Federal Circuit and the Ninth Circuit.

Mr. Storm is currently serving on the board of directors of the San Luis Obispo Symphony.

If your business needs help sailing the perilous waters of California’s employment laws, call an experienced navigator.

Apropos of my recent post on the many vulnerabilities of Microsoft Internet Explorer, I thought I would share another experience that has arisen in the context of this blog.

From time to time in connection with my law practice, I send out via email information to clients with an attachment. Sometimes there is little or no information in the actual text part of the email. Worse, sometimes there are multiple recipients.

Today, I noticed that three recipients rejected my email. Upon further investigation, I discovered that my law firm’s IP address had been listed on a spammer service. (You can check yours here http://openrbl.org/ ) Ostensibly, this is because some mail with a virus or trojan was relayed at some point from this IP, or there was on open proxy.

This particular server runs a dedicated e-mail virus scanner that updates its indexes every 2 hours and heuristically scans for malicious code. It is behind a very expensive, very fancy Firebox firewall with literally five or six open ports. I have performed a security audit of this server on my own, and, I should add that it would be very difficult to penetrate it from outside.

I requested that my IP be removed, but I have no idea how effective this will be. This database claims that it lists 82,000+ IPs.

This is going too far.

I hate spam. I think it and spyware are combining to break the Internet. However, seriously impeding the flow of legitimate email is even more damaging. Spams can be deleted; block legitimate emails are unknown to the recipient!

Here are some suggestions in the meantime.

(1) No more e-mail lists. Use a blog or a hosted webpage and have people check the link.
(2) Use your ISP’s SMTP relay exclusively (they might have ridiculous restrictions thought)
(3) Request a delivery receipt or a read receipt on all important messagegs.

It’s one thing having to work to stop spam. It’s another thing to have to monitor services tracking spammers to make sure your legit mail is working.

I am considering moving this site to one of my personal servers. If so, that move would be next week. The main change would be the URL, but I will continue to use blogger/blogspot for the foreseeable future.

While I’m on that note, I’d like to say a thing or two about the Internet and security. Before I became a lawyer, or even went to law school, I worked for almost 10 years in the computer industry. I owned a domain name in 1992, and was building computer networks well before the Internet revolution.

Back in those days, viruses were much more malicious. They would wipe out your hard drive. But like biological viruses, the ones that kill off the host organism too quickly do not get a chance to propagate. But today, the literally scores of programs that run without your knowledge on your computer diminish the power of your computer and suck internet bandwidth, thereby raising the cost. Yesterday’s Internet Explorer vulnerbaility was the last straw for me, and I switched to Mozilla.

I was hopeful that anti-spam legislation would be almost as effective as the do not call list was for telephones; it has not been. Therefore, I’m even more doubtful that any legislative action against “spyware” will solve the problem either.

It’s up to the software makers. They’d better act, because as I see it, the Internet is broken.

Unless the Legislature repeals the Labor Code in an emergency session, today will be the last day of posting for 2004. I was thinking about doing a 2004 retrospective, or a 2005 “what’s new,” but I’m sure that the shock and awe literature from BigLaw has that covered.

Anyway, CLEL hopes your 2004 was great and your 2005 is better!

CLEL will be working on an extraordinary writ filing this week, and, therefore will not be covering the news. If I see any interesting cases, I’ll still post them.

P.S. Thanks to The UCL Practitioner for the reference. I can’t imagine that the Defense bar will be able to get around McClung and the long-term march of California’s courts against retroactivity. I wonder what the CLE program tomorrow will say about it? (CLEL will try and squeeze that one in.)

I stepped out for a minute to check on things while the discussion veered into something that I simply do not do in my practice, namely Sarbanes-Oxley Compliance.

So far the speakers have been interesting and professional. The hotel strike outside provides an interesting backdrop for the discussion, especially this mornings Labor Lab update. Most of what we’re hearing here is not that useful for most of us, because we practice in California and the FEHA is uber alles here, but definately built on the wider backbone of this kind of Federal law, so your have to have it.

No significant news or cases to report on today.

CLEL will be watching for results in these cases:

• Dore v. Arnold Worldwide, Inc., pending before the California Supreme Court. Issue: at-will employment.
• Lyle v. Warner Bros. Television Prods., pending before the California Supreme Court. Issue: FEHA/sexual harassment.
• Powers v. The Rug Barn, pending before the California Supreme Court. Issue: tortious interference with at-will employees.
• Reynolds v. Bement, pending before the California Supreme Court. Issue: wage/hour.
• Smith v. Jackson, pending before the U.S. Supreme Court. Issue: ADEA

CLEL will be attending NELI this Thursday and Friday in San Francisco. Hope to see you there.

I apologize for my unanounced hiatus. It was a busy week plus, of course, there was the election. I will post a first look at Proposition 64 soon.