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.
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.
The ALI is gearing up to draft an employment law restatement. It sounds like it could be somewhat interesting at first glance, but once you see what’s in it, it sounds silly.
The right way to do something like that would be an exhaustive 50 state project, and could be a useful tool. I know in my practice, I compare federal and state law often, but I just don’t have much reason to see what they’re doing in, say, Kentucky on overtime (if anything). After a while, I think you’d start to find that a few positions would evolve and could be great arguments to use, especially if you’re in appellate practice.
But, what’s coming doesn’t sound very good. Maybe as a resource for a law school textbook, but not much else.
QUESTION
When I fire someone, do I have to give written notice?
ANSWER
Technically, under the Unemployment Insurance Code, you have to give a notice that includes the employee’s social security number as well as a pamphlet called “For Your Benefit” to the employee.
Much of the employment law literature focuses on preventing wrongful termination suits, and that, of course is important. While they are more common than many people expect, they certainly don’t happen every time. Almost every time, however, you’ll have to go through the unemployment insurance process, and making mistakes there can lead to your account getting charged. It won’t cost you as much as a wrongful term case, but it can add up. What’s more, there’s a minimal cost in complying with that regulation.
I like #7, maybe because I just made a joke about blonde’s being a protected class earlier this week…
7. The 7th Circuit has ruled that punitive damages awarded to an employee in Lust v. Sealy Inc., a sex discrimination case, were excessive. Tracy Lust was promoted by Sealy to a position in its Madison, Wis., office two months after being passed over for a position in its Chicago office — and shortly after she filed a charge with the Equal Employment Opportunity Commission. The court pointed out that her supervisor “had a history of making sexist remarks to Lust such as ‘You’re being a blonde again today.’” But the usually dour Judge Richard A. Posner, in a rare moment of levity, quipped: “Lust is blonde; Sealy points out irrelevantly that blondes are not a statutorily protected class, which will disappoint hair colorists.”
QUESTION
I pay my employees based on commissions. Do I still have to pay them minimum wage, even if they don’t earn it?
ANSWER
Yes.
There really aren’t any exceptions to the minimum wage laws. And the penalties for violating them can be steep. First of all, you can be sued. Second, you can be held liable for the employee’s attorney’s fees that he accrues to get that money back. Third, you will also incur “waiting time” penalties, up to a month’s worth of wages, for the time the employee went without the minimum.
What’s worse is, if the employee was previously “exempt” from overtime, an income level dropping below twice the minimum wage (for full time) will also make that employee non-exempt.
Be careful setting compensation levels. It may not seem fair, but you’re better off paying a little more to avoid these pitfalls. Just consider it a form of insurance.
Can my employer make me use my own vehicle for work?
ANSWER
Sure.
But it’s probably not the best idea that they do that, from their perspective, because it opens them up to liability in situations they might not otherwise have it. From yours, it means that you incur expenses in gas, wear and tear, and so forth. You’re entitled to reimbursement for those expenses under Labor Code section 2802. There are handy charts that can tell you how many cents per mile you should get.
DLSE has opined that use of the IR S mileage allowance will satisfy the expense s incurred in use of an employee’s car in the absen ce of evidence to the contrary.
Disclaimer: The above advice is not intended to reflect any actual situation and reflects a casual scan of the law as understood by the author at this moment. Anyone who needs legal advice to meet their particular situation should retain counsel, and SIOULD NOT rely on the above.
The San Diego Union Tribunereports on a new proposal in Congress to punish employers who hire illegal immigrants. The penalties may be up to 5 years and $50,000.
Every trial court order holding that Proposition 64 applied retroactively is now invalid under California’s prinicples of stare decisis, because the 1st Dist. Court of Appeal has issued an opinion holding that it does not.
This is consistent with a string of California Supreme Court cases going back years and including ones as recent as November. Not a surprise to me (as you may have read), but expect shock-and-awe “updates” from the panic marketing firms tomorrow.
For more, as always, check out The UCL Practitioner, who has been following the Prop. 64 issue like no one else. wine
There’s not a lot of California Employment news today (or any, really) so I thought I’d post a link to an article about the new California quarter, reported by the Sacramento Bee.
For as much patriotism as I see these days, I hear just about as much anti-California sentiment within the state as I used to hear in other states against it. That’s a shame. As employment lawyers of any stripe, we know things aren’t perfect, but things are pretty good too.
The Contra Costa Timesreports—the article frames the contract as less than perfect, but, of course, this one was reached without a nearly 5 month-long strike.
The Los Angeles Timesnotes that SBC is bringing back traditional pensions.
CLEL also notes that there haven’t been any interesting employment law cases out of California courts for a while, but, if you’re interested Kim at the UCL Practitioner is tracking the day-by-day evolution of Proposition 64.
No matter how much $500 per hour verbiage I read, I still can’t see how Prop. 64 is retroactive under the law. Especially the argument about it “not affecting substantive rights” is thoroughly question begging.* That means, in logical terms that you assume the truth of the conclusion to prove the question.
If you agree that the non-harmed Plaintiff did not have a substantive right under the UCL, then clearly, no rights were affected. But to believe that, you have to accept that contention. I disagree, and I don’t think it’s much of a matter of opinion.
Before Prop. 64 I personally possessed the right to enforce laws under the UCL. Now I do not. End of question.
If you live in a defense-bar echo chamber (which I try to avoid being in) then, sure, those people never had real “rights” anyway, so of course nothing is affected. I could speculate that this stems largely from these BigLaw power lawyers farming this research out to junior associates who have Article III standing fresh on the brain and can’t grasp the fact that it doesn’t apply in California.
But you have to beg the question of there being no right to make this argument work. That’s not to say that plenty of results oriented judges out there won’t disagree, but this is more a matter of logic than of fact. It’s a shitty argument and they should be embarrassed making it.
I’ll continue to review the other arguments. E-mail me if you think you can win me over.
(Editorial Note: Once again, I am not making any comment on the propriety of the UCL or Prop. 64)
P.S. Snaps and props to The UCL Practitioner for being more than on top of this from day one. What an excellent resource!
* Smile. This may be the only time this year you read this term in its correct definition and not as sloppy shorthand for “poses the question” or “leads one to ask.”
Lujan v. Minagar – Firing someone because you think they’re about to report you violates Labor Code Sec. 6310, which prohibits termination of employee in retaliation for reporting violations of Occupational Safety and Health Act.
Lonicki v. Sutter Health Central - Employee who was performing nearly identical duties for two employers but claimed to be unable to continue doing so due to medical condition could not take California Family Rights Act leave from one position and not the other. Where sole documentation of purported medical condition was note from family nurse practitioner saying employee would be out of work until a specified date for “medical reasons,” employee did not provide satisfactory evidence of “qualifying medical condition,” and employer was not required to invoke “three-opinion” procedure as a prerequisite to litigating CalFRA claim.
[UPDATE: Via California Insider: Glitch fixed; alarm over. Prop. 72 still loses.]
According to the LA Times, Prop. 72 may have made a late comeback. If you’ve already flushed that one, it’s the one that requires employers with more than 50 employees to provide health care benefits.
Though this may be due to an error, it isn’t clear. We’ll know more soon.
[UPDATE: Apparently, a Court of Appeal has allowed a UCL action with no injured-in-fact Plaintiff to proceed. Shows what I know.]
[UPDATE: Apparently at least one demurrer has been granted on the basis that Prop. 64 applies retroactively by a Judge in Los Angeles. Shows what I know.]
I sat in on today’s teleconference given by the anti-trust section of the state bar on the changes to the UCL brought on by prop 64. I have to say that I was pretty unimpressed with the arguments presented by the defense bar (of which I am a member). I don’t blame them for making them–it’s their job–but I just don’t think they’re convincing at all. My apologies to those who disagree, but it seems to me that this only became a research project since Election Day, and there hasn’t been much notice of the increasingly stronger anti-retroactivity language coming out of California’s courts in the past years.
I also think the argument flowing from the procedural/substantive distinction is, frankly, farcical. I think there is merit to the contention that the portion that requires class certification might be considered purely procedural, but the part that withholds standing from others destroys their former substantive right to enforce laws against unfair competition. In other words, from the point of view of a citizen or a public interest group that didn’t lose actual money or property, they now do not have a right they previously had. If that’s not substantive, I don’t know what is. I think we can also dismiss summarily the arguments that because the right is statutory that it can be retroactively changed automatically (clearly refuted by the recent McClung case, ruling on the FEHA, which involves statutory rights) or that it “merely” governs how these actions are prosecuted, and, most absurbly, distorting the language of the voter information pamphlets—of all things—to coax an inference of retroactivity.
I will at least grant that the style, if not the substance, of the defense bar presenters was excellent. It’s just that I can only picutre in my mind what an appellate panel would do to it.
There was high level political genius behind Proposition 64. First, those who explained that the funding provision of the penalty amendments was done to give the appearance that this wouldn’t hurt consumer protection because it would provide funding for the public agencies responsbile for it to do so plainly ignored the commentary given by the District Attorney who was present. This was meant to give that appearance, but not only to the people voting on it, but also to the Legislators controlling the purse strings later. They can rely on this, correctly or not, to fund this enforcement and slash its funding from the general fund. Political tactics of this level of genuis only come from very well put-together organizations. The Prop 64 opponents were not playing on this level, and they weren’t playing on that level when they failed to reach a legislative compromise last spring. Welcome to the NFL.
So far, the only court to rule on this has agreed with me. In my practice, every single UCL case I defend against (or have brough as a plaintiff) includes a plaintiff who was injured in fact, and the majority now include class allegations. I understand if you’re in the middle of defending a “public interest” case that you hope this will save you, but I doubt it will. You can run it up to the Appeals systems, but something tells me most Courts are just going to allow amendments to the pleadings to include class allegations and a correctly injured plaintiff (if there is one), and the courts will probably stretch the “money and property” provision as far as they can. There will probably be a small number of outright dismissals—and it seems to me those won’t be the cases of the family business, but environmental ones.
In sum, I know the issue of retroactivity is hot right now, but I don’t think it’s really all that important except in cases of vague injury in fact, which, to me, is where the action will be in the courts.
[Editorial Note: I normally refrain from expressing opinions, as is my policy. I am not expressing my opinion on the propriety of Proposition 64 or the UCL itself; just on the arguments put forth for and against the retroactive application of Prop 64, which is consistent with my meta-commentary on the reporting and editorializing done by others, without commenting on the underlying issue. Please do not take offense.]
After upsetting labor unions by favoring corporate interests this year, Gov. Arnold Schwarzenegger on Tuesday appointed a Democrat and longtime labor leader to manage the sprawling bureaucracy of the Employment Development Department.
The AFL-CIO confronts the future. The LA Times reports.
Lines have already been drawn, with fast-growing, aggressive unions such as the 1.7-million-member Service Employees International Union demanding that the labor movement consolidate much as corporate America has. The presidents of five unions have established the New Unity Partnership, which advocates a massive reduction in the number of unions — from 63 to 15 — with those remaining to be divided clearly along sectoral lines, such as hospitality and construction.
