The United Synagogue of Conservative Judaism and the Rabbinical Assembly have released a policy statement today about its new “Hekhsher Tzedek” (”Justice Certification”) guidelines for kosher foods.  Hekhsher Tzedek goes above and beyond the traditional ritual slaughter and cleanliness provisions.

Of interest to employment lawyers—especially if you represent a company that seeks to get this certification—is their “Working Guidelines.”

Companies must offer fair wages and benefits to all employees.  Companies will be favored for the Hekhsher if they pay their workers the industry average or above; offer comprehensive health insurance and retirement benefits; and provide workers with paid time off for vacation, sick, and maternity leave.  Companies may be disqualified from receiving the Hekhsher if they perform poorly in the aforementioned areas or if they have been involved in serious or widespread controversies relating to employee compensation and benefits.  Compliance with these criteria will be assessed using the following indicators.  

▪ Worker Pay.  The focus of this indicator is on how well factory-level workers are paid compared to regional and industry averages. 

▪ Health Insurance. Companies will be favored for the Hekhsher if they offer affordable health insurance to all full-time employees and a meaningful percentage of employees take advantage of the program  

▪ Retirement Benefits.  Companies will be favored for the Hekhsher if they offer all full-time employees an adequately funded defined benefit pension plan or a 401(k) plan through which they match employee contributions. The level at which the company matches employee contributions will also be assessed. 

▪ Vacation. Companies will be favored for the Hekhsher if they offer paid vacation time to all full-time employees and a meaningful percentage of employees take advantage of the program. 

▪ Sick Leave. Companies will be favored for the Hekhsher if they offer paid sick leave to all full-time employees. 

▪ Maternity Leave.  Companies will be favored for the Hekhsher if they offer maternity leave that exceeds the 12 unpaid weeks mandated by the federal government.  

▪ Controversies.  This indicator considers the company’s record with regard to controversies associated with worker pay and benefits, e.g. non-compliance with minimum wage or overtime laws, Equal Employment Opportunity Commission (EEOC) wage discrimination lawsuits, or violations of the Family and Medical Leave Act

Now, next time you go to the store, see how many of the items you buy have some kind of kosher certification.  The organizations that do these certifications are almost all Orthodox.  Recent studies suggest that approximately 10% of Jews are Orthodox, and 2-3% of Americans are Jews.  Conservative Jews—approximately one third of American Jews—also adhere to kosher rules, but studies suggest that observance is much lower among Conservatives.

But this new certification may have cross-over appeal, not just to Jews of different stripes, but to anyone who’s looking for ethical purchasing decisions—something like “organic” or “fair trade” certifications.  

If you represent a client that depends on this certification, the stakes are even higher, aren’t they? Discuss amongst yourselves—I’m all farklempt.

The Plaintiff in National Federation of the Blind v. Target Corp. says so. In its Complaint, at Paragraph 30, it states as follows:

Alternative text (“Alt-text”) is invisible code embedded beneath a graphical image on a website. Web accessibility requires that alt-text be coded with each picture so that a screen reader can speak the alternative text while a sighted user sees the picture. Alt-text does not change the visual presentation except that it appears as a text pop-up when the mouse moves over the picture. There are many important pictures on Target.com that lack a text equivalent. The lack of Alt-text on these graphics prevents screen readers from accurately vocalizing a description of the graphics. (Screen readers detect and vocalize Alt-text to provide a description of the image to a blind computer user.) As a result, blind Target customers are unable to determine what is on the website, browse the site, look for Target locations, investigate Target programs and specials, and/or make any purchases.

(Emphasis added.) There are a number of different standards for drawing web pages on browsers. Starting with HTML 4.01, published on December 24, 1999, the newest standard “required” that all images have an alt-text tag with a description of the image. Actually, HTML 4.01 requires the tag, yes, but it allows that tag to be empty. In other words, the description is not “required” at all.

Furthermore, all modern browsers display a variety of different web page standards, including HTML 4.01, XHTML, and older versions of HTML.

So, this case essentially poses the question: does Title III of the ADA, and, therefore Unruh, require businesses to make some medium previously inaccessible to those with a certain disability accessible to them by using some kind of “best available technology”? (I take that concept from environmental law).

I know a lot about coding websites, and a fair amount about programming in general. I will tell you that if everyone covered by those laws has to go back and implement text friendly versions, the costs will be huge, and maybe not even possible in all circumstances.  Still, I wonder what a good solution here is.

This case doesn’t fit well with the general theme of this blog, but I’ll keep an eye on it as a hobby.

Bruce Nye at Cal Biz Lit has an interesting post on Gentry (h/t The UCL Practitioner.)

In my original post on Gentry, I noted that:

I think the practical effect of this case will far exceed its holding. In fact, I expect it to add new dimensions to practically every employment case. If every employment contract of this kind has some procedural unconscionability, and that allows an analysis of potentially unconscionable substantive terms…

Mr. Nye at Cal Biz Lit recently stated that he thinks the language goes beyond just employment contracts:

It isn’t clear after this case that any contract of adhesion can escape scrutiny for substantive unconscionability if the side with the power has expressed a preference that the “little guy” sign it and hasn’t given him clear, conspicuous warning that some parts of it aren’t to his advantage. The possibility of opening every contract to scrutiny for fairness is fairly breathtaking.

I don’t take it quite that far. Sure, that is the reductio ad absurdum of the language in that case; however, realistically, this case isn’t going to radically alter all aspects of contract law. Employment contracts are a special case that have long been recognized as asymmetrical in power, and vast quantities of statutes, public policy, and case law reflect that. Without much exaggeration, I’d say that’s what 75% of the Labor Code is about.

What about the other “little guy” situations? I suppose it will depend on the power dynamic of the relationship, but I’m not sure just how far that deviates from the existing framework. I would never underestimate the creativity of my colleagues, so I don’t doubt that language from Gentry will be used in many situations where it doesn’t apply, like the million dollar company versus the mutli-million dollar company. Will it succeed? My Ouija board says no, but it’s often broken.

It will indeed be interesting to see how this plays out.

The proposed Arbitration Fairness Act (Feingold/Johnson) would essentially ban arbitration agreements in employment. While I’m skeptical of this bill’s chances of success in getting a vote in the Senate, or in being signed by the President, and I believe this mostly is done to show that someone is “doing something,” I think it’s something to take note of.

This site has contained an editorial skepticism about arbitration as a panacea for employment disputes, and has maintained a professional skepticism about the long-term viability of overly aggressive arbitration agreements. This bill’s introduction marks the beginning of the blow-back phase that, in my view, was inevitable.

Politicians in this country aren’t functioning as some sort of court of final review. If they are working to overturn court decisions, or change the law, they are doing so because they have detected, most likely through polling data, some political support for what they are doing. This political support has come from overly aggressive employers putting their hands in the arbitration cookie jars and getting caught one too many times.

The next interesting result will be the California Supreme Court’s take on class action waivers in arbitration agreements. While a pro-employer victory would be wonderful for our side of the bar, I believe it would result in considerable political blow-back.

And the thing about political blow-back is that it doesn’t often return things to the status quo ante; instead, it tends to go even further.

I don’t have much to say on the EFCA except for that I seem to be seeing an awful lot of news and commentary about it.  I’m sure the attorneys who write these are smart enough to understand that, even in the mostly unlikely event that it passes the Senate, it is not going to become law.

Are emotional distress injuries taxable? No, says the D.C. Circuit, at least for now. Murphy v. IRS, 460 F.3d 79 (D.C.Cir. 2006).

While this is clearly beyond the normal scope of this page, the question of taxation is always the last small opportnity for lawyers to quibble in settling employment cases (and perhaps even have the settlement fall apart). This adds a whole new dimension.

Are we about to undergo a wave of increasing summary judgment denials?

I’m not sure that that necessarily follows from the >230:1 ratio between CEO pay and average employee pay, or the wave of minimum wage hikes. But I listen when Michael Fox speaks.

Yesterday,
the Sixth District filed an opinion that found an employer immune from state
law tort claims under the Communications Decency Act of 1996 (CDA). The plaintiffs alleged that an Agilent
employee had used Agilent’s computers to send threatening email messages to the
plaintiffs, and sought damages from Agilent for intentional and negligent
infliction of emotional distress. Agilent successfully brought a motion for summary judgment, claiming
immunity under the CDA, which plaintiffs appealed.

Under the
CDA, a defendant has immunity when: 1) the defendant is a provider or user of
an interactive computer service; 2) the cause of action treats the defendant as
a publisher or speaker of information; and 3) the information at issue is
provided by another information content provider. 47 U.S.C. 230(c)(1). Because plaintiffs did not dispute that the
Agilent employee was the “information content provider,” the court in Delfino
focused on the following two questions in its application of the CDA. First, the court asked whether Agilent was a “provider
of an interactive computer service.” Second, the court asked whether plaintiffs’ state law claims for
negligent and intentional infliction of emotional distress treated Agilent as a
publisher or speaker of the information at issue.

Addressing
the first question, the court stated that it was unaware of another opinion
that addressed the issue of whether a corporate computer network qualifies an “interactive
computer service” under the CDA. The
court first compared the approaches used by various federal circuits and California state courts,
and noted that courts have broadly defined the term to encompass entities other
than ISPs. The court also surveyed
academic sources, and noted that several journal articles concluded that
employers, like ISPs, should be covered by the CDA’s immunity provisions. Ultimately, the court found that employers
who provide employees access to the internet meet the CDA’s definition of a
“provider of an interactive computer service.”

Addressing
the second question, the court first noted that most cases addressing the scope
of CDA immunity under section 230 involve defamation. However, the court noted that some cases had
applied CDA immunity to claims of intentional infliction emotional
distress. In addition, the court cited a California opinion from the First District had applied CDA immunity to claims of nuisance,
premises liability, and a taxpayer suit under CCP section 526a. The court found further support for the
proposition that CDA immunity applies to civil claims generally. Without further elaboration, or a statement
of the exact claims CDA immunity applies to, the court held that plaintiffs’
claims of negligent and intentional infliction of emotional distress treated
Agilent as “a publisher or speaker of the information at issue” under the
CDA.

The court’s
opinion in Delfino seems part of a trend, where courts will broadly interpret
the CDA’s immunity provisions in section 230 to limit plaintiffs’ ability to
bring state law tort claims against any entity that provides a means for
transmission of tortuous electronic communications. However, the opinion in Delfino resulted, at
least in part, from the plaintiffs’ inability to provide a sufficient rebuttal
to the evidence offered by Agilent in its summary judgment motion. It remains to be seen if the CDA’s immunity
provisions will be applied as broadly in a case where the facts are more
favorable to plaintiffs seeking to overcome an assertion of immunity under the
CDA.

Hat tip to Sheppard Mullin.

You can read their more detailed analysis. I would just add that the technical holding in the Saunders case cited by the Hernandez court is not

As a matter of law, a claim of intrusion cannot fail merely because the
events or conversations which the defendant intruded upon were not
completely private from all other eyes and ears

as the court states.

The Saunders court merely held that an employee had an expectation of privacy at his or her workplace from non-employer third parties. It did not disturb that aspect of the lower court ruling which had flatly held that there was no expectation of privacy in the workplace from employers. And while no published California case may have held that public offices contained little or no expectation of privacy from employers, that is the majority rule in the United States.

This case would appear to overrule that technical holding.

While plaintiffs did not enjoy complete and absolute
privacy in their office, it was reasonable for them to expect images of
them in their office with the door closed would not be transmitted to
another portion of the building.

(2006 Cal. App. LEXIS 1390 at 24.)

It appears, then, that workplace surveillance in California will be treated with a very skeptical eye. While the ruling here is overturning a summary judgment, chances are that trial courts will see this merely as a “pro-privacy” decision, much in the same way that they saw Sav-On as a pro-certification case.

Indeed, this opinion implies that such surveillance must be narrowly tailored to fit a legitimate business interest, to borrow language from Constitutional law:

Defendants placed a motion-activated camera in a private office shared by plaintiffs, and left it functioning for no legitimate reason
while plaintiffs were present. Nor did defendants alert plaintiffs to
the presence of the camera, so they could modify their behavior to
protect their own privacy. Under these circumstances, defendants have
not established as a matter of law that their conduct was not highly
offensive.

(Ibid.) (Emphasis original.)

Of course, there is probably not much point in surveilling employees—or anyone—who are on notice that their conduct is being watched. It’s a self-defeating cycle. Now keep in mind, these are offices that anyone could walk into at any time. It appears to be the video-taping aspect alone that triggers potential tort liability here.

I often meta-blawg on the “shock and awe” tactics used by many law bloggers, but in this case, it does appear that any workplace surveillance (at least in non-customer/public areas?) should not be videotaped.

The California Supreme Court ruled today on Prop. 64, as most of you are likely aware.  The rulings are Solomonic: yes, Prop. 64 applied to pending cases, but, yes, you can amend to add people who were affected.

The Supreme Court did not address to too-clever-by-half "statutory repeal" rule that many of the lower court rulings had depended on.  The Court instead relied on the substance/procedure distinction.

Of course, this is all well and good, nearly two years beyond the election that put this law into place.

My analysis is that the Supreme Court is in the process of walking back some of its strong anti-retroactivity opinions of the early part of this decade and the late 1990s. 

The NLRB has ruled that overly broad arbitration agreements can violate the NLRA.  More here.  Some details:

On May 20, 2003, U-Haul distributed a mandatory arbitration policy to
        its employees that stated: "Your decision to accept employment or
        to continue employment with [U-Haul Co. of California] constitutes your
        agreement to be bound by the [U-Haul arbitration policy]." The policy
        "covers all disputes related to or arising out of an employee’s
        employment with UCC or the termination of that employment."

The upshot is that you’re signing employees to an illegal contract (beware: the UCL lurks!) if you’re overzealous with your arbitration agreement.

This is yet another example of why I caution employers not to go running to their attorneys every time a law firm’s newsletter claims some new court ruling requies their arbitration agreements be re-written.  Arbitration agreements can implicate literally every element of the complex state and federal web of employment laws.  I urge employers to be conservative, and not to be part of an experimental avant garde with these. 

In California, at least, even the mere act of signing employees to an illegal contract can give rise to liability under the UCL.  Being overly agressive with these agreements may, therefore, not net any benefit to you–unless you like being the fee-paying guinea pig for a labor lawyer’s experiments with the limits of the law.

UPDATE: Apropos of this, take a look at this article at law.com. "Arbitration’s Fall From Grace."

Yesterday’s The Recorder has a leads with an article about Miles Locker and the fracas at the DLSE, all apparently centering over the 226.7 wage/penalty issue.  I can’t find an online link.

This morning’s Los Angeles Times has an article about Miles Locker’s departure from the DLSE:

In a 22-page complaint detailing Locker’s dismissal, labor standard
officials charged him with trying to undermine his supervisors’ efforts
to interpret state wage and hour laws. The complaint, relying in part
on e-mails taken from Locker’s office computer, called him disloyal
because he "secretly communicated … disagreements" with his supervisors
to lawyers outside the government.

The complaint also accused Locker, who is appealing his firing to the
state Personnel Board, of making comments last year that ridiculed
then-Labor Commissioner Donna Dell.

I couldn’t skip this one.  Professor Suja Thomas has written a law review claiming that summary judgment under Rule 56 violates the Seventh Amendment because no similar procedure existed under the Common Law.

Under the Common Law in 1791, there was no procedure for the judge to determine the facts.  Of course, there were demurrers of various flavors.  It seems clear from her own paper that regardless of who read the facts and who read the law, judges did have the power to throw out cases.

I’m not seeing the importance of this circular law/fact distinction in the question.  The question to me is simply whether a judge can throw out a case.  Under Common Law, he could.

Furthermore, lets not forget, the judge acts as a gatekeeper for the evidence even in a jury trial, so Thomas’s assertion that his consideration of the evidence is some strange animal doesn’t fly.  Plus, summary judgment does not allow the judge to "weigh" the evidence.   Strictly speaking, if there is a dispute of a material fact, trial goes forward. 

In sum, there may not be an exactly analogous power under Common Law, but there are no new powers given to the judge; it’s just a hodge podge of other existing powers.

Quite frankly, this article defines "academic" in both the literal and pejorative senses of the word.  Rule 56 will stand one way or another.

Transferring a group of workers from one company to another is not a “mass layoff” requiring 60 days notice under the Labor Code.

A recent Gallup poll places lawyers above union leaders, senators, business executives, stockbrokers, car salesman, and telemarketers in terms of the public’s perception of our ethics. 

I am in Colorado this week for yet another NITA conference.  Posting will continue to be light through the New Year.

Employer sought writ of mandate to
challenge Unemployment Insurance Appeals Board determination that an applicant
was its employee,
effectively sought to prevent the collection of a tax and was thus
barred by the state Constitution’s “pay first, litigate later” rule. Employer
may obtain judicial review of board’s determination only by paying assessed
unemployment insurance contributions, claiming a refund, and filing an action
for refund in the superior court if the claim is denied.

Over at the UCL Practitioner (a fellow TypePad immigrant), Kimberly has begun a series of posts on the statutory repeal rule. In the course of my studies to be admitted to the roll of Solicitors in England, I had occassion to re-read Blackstone, and his view of the common law.   This is central to the statutory repeal rule, because rights at common law are not subject to this rule, according to the precedent she mentions. And the UCL as it stood pre-prop 64 clearly was not a right at common law, but it’s not clear exactly why (to me). Is it because there was no standing requirement? there was an unfair competition tort at common law, so that can’t be it, but it wasn’t as extensive as the prior UCL.

But nor was there any common law tort for discrimination or sexual harassment in employment, yet the Supreme Court held only a year ago that amendments to that law were not presumptively retroactive in McClung.  I’m having trouble reconciling to the two.

So, today, as a series of new ballot initiatives are voted on, we still don’t know what one approved a year ago means.

You’ve heard a lot about California being “anti-business” and its laws and policies being hostile to employers. It’s an article of faith among some of my colleagues. Apparently, ho

• California does in fact lose business and jobs because of relocation, but the effect on employment is negligible. In any year from 1993 to 2002, the net job loss from business relocation was never higher than one-tenth of 1 percent of the total number of jobs. . .
• Employment change is primarily driven not by interstate relocation but by the expansion and contraction of existing businesses and by the births of new businesses and the deaths of existing ones. . .
• When they do move, businesses are much more likely to move locally than across state boundaires. . .

Also, not this interesting factoid: “Those who have argued that California’s business climate has pushed businesses out of California have rarely relied in empirical evidence of relocation behavior, but rather or surveys that elicited subjective assessments from employers.”

In other words, someone is creating a positive-feedback loop that is scaring the crap out of medium and small businesses in the state, driven by a justifiable frustration at complicated regulation. Nonetheless, fear-mongering at the state of things in the world’s fifth largest economy is not productive. One wonders whether the rust-belt states are claiming the same problems as they lose population in droves to the sun-belt. California is a great place to do business, especially relative to where else you can go, even if sub-optimal in all aspects.

You can read the entire report here in the California Economic Policy Journal.

More on Wal-Mart.

Nathan Newman bombards Kevin Drum and Ezra Klein for widening the context of the Wal-Mart dispute.

Employers shouldn’t be excused for completely rotten, immoral activities just because a better policy would make compliance with the law easier. This is bleeding heart liberalism applied to the largest corporation on earth, as if Ezra is excusing some kid caught purse snatching with the excuse that society had failed to provide better economic alternatives to a life of crime, so it’s really society’s fault that the victims lost their property.

I’ve talked to people about this, and it’s not clear what they are (were going to be?) doing is discriminatory. Even if it discourages “unhealthy” applicants (not a protected class as long as they aren’t perceived as such), as long as they aren’t trying to keep disabled people out, it’s not illegal. Under disparate impact cases, there is a so-called “interest” defense (why you don’t see WASPs bring class actions against strawberry farms). If it’s just that people don’t want that kind of job, it’s basically ok. It depends on the intent.

And Newman may be right that allowing this potential violation in order to cure a health care issue isn’t the law, but at least they aren’t simply doing it to pad their pockets. Pure motive or not, they are trying to address an important social issue. That should be deemed a step in the right direction for a Wal-Mart antagonista.

My experience as a juror was traumatic. Not because the seats in the jury box must have been designed by a cabal of chiropractors to maximize business; not because it took two weeks of my life; and not because most of the subject matter was drop-dead boring.

It was traumatic because during deliberations, roughly half of my fellow jurors simply ignored the evidence and the instructions. And it’s not because I disagreed with the result that we arrived at. I simply disagreed with the disdainful, prejudicial manner that some of the other jurors had.

I pray that I never have my fate or the fate of someone I care about decided by such a group. I don’t have any proof, for example, that some of those who refused to deliberate in good faith were simply trying to get home after two long weeks, but I got it straight from the horse’s mouth from some of them that they simply “didn’t like” the plaintiff or thought that because he didn’t do absolutely everything perfectly that he deserved no reward–nothing that had anything to do with the law or the facts.

The case deserved a defense verdict, in my opinion, but not because the of the smear on the plaintiff by the defense, not because there are “frivolous” lawsuits out there and we should punish the system (there was enough juice in this one on day one to leave any notion of frivolous far behind), or anything else that was irrelevant to the events in question.

As a defense attorney, I have to feel emboldened. As a citizen, I have to be scared.

I have been on a jury for almost two weeks now. It’s been an educational process that I will have a lot to say about once I’m relieved of my duty to hush up. I apologize for the lack of posts. As you can imagine, I’ve been occupied.

Guest Blogger: Steven M. Chanley

Leegin Creative Leather Products v. Diaz

The employer sued an employee for fraud after a sub rosa investigation captured evidence that the employee displayed physical capabilities that were inconsistent with her temporary total disability claim. The civil suit was filed while the application was still pending before the WCAB and before there had been any administrative finding of fraud. The trial court granted the employee’s anti-SLAPP motion to dismiss.The Court of Appeal affirmed. The employer did not contest that the employee’s application to the WCAB implicated her right to petition the government for the redress of grievances, and the Court of Appeal determined that, for two reasons, the employer’s Complaint failed to make a prima facie showing sufficient to sustain a judgment in its favor. First, the employer’s forwarding the employee’s application for benefits to its insurer was not evidence of justifiable reliance, according to the Court, because that act was non-discretionary and compelled by law. Second, the Court found that the employer could not show any resulting loss, because any eventual finding of fraud by the WCAB would preclude an award of benefits and an increase in insurance premiums as a matter of law. The Court of Appeal also based its holding on public policy grounds: “Permitting an employer to bring a civil action for fraud against an employee while the workers’ compensation proceeding is pending could have a chilling effect on an employee’s exercise of the right to file a workers’ compensation claim.”

Comment: This is clearly the case of a company’s frustration over a frivolous comp claim trumping its better judgment. As the Court of Appeal points out, adequate remedies exist at the administrative level (where the insurer bears the attorneys’ costs) for dealing with applicant fraud. I’ll bet the civil suit was probably several times costlier than whatever premium increase the employer would feel as a result of the comp claim.

Nathan Newman has a first look a t Judge Roberts’s labor law record here. (Warning: non-objective commentary follows). Roberts will get through comfortably, I’d bet on it.