Monday, July 31, 2006
The pending bills include a couple of health care measures. One of them, SB 840, again attempts to impose a "single payer" healthcare system. According to the Healthcare for All blog, the voters rejected single payer back in 1994 with Prop. 186. I guess it's time for another run? Another bill requires large employers to provide a certain level of health insurance or pay a tax to the state. I think the voters rejected a "pay or play" system a couple of years ago with Prop. 72. I also think a court just invalidated a similar effort in Maryland. Stay tuned....
Thursday, July 27, 2006
- CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2005 - 2006
- THE U.S. SUPREME COURT EXPANDS TITLE VII RETALIATION CLAIMS
- ONE OPTION FOR REDUCING OVERTIME LIABILITY: THE ADOPTION OF ALTERNATIVE WORKWEEK SCHEDULES
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Tuesday, July 25, 2006
Thursday, July 20, 2006
What are their rules?
1. No good deed goes unpunished.
2. California's just different.
3. The plaintiff's lawyer knows no shame.
4. It's not about justice, it's about the money.
Again, these are their rules, not mine. Yeah, ok, they're usually true. Read the post - the facts of the case will make you smack your forehead. Everyone chuckles when you do that.
Have a nice weekend.
Wednesday, July 19, 2006
The Court of Appeal started off by saying that a "verified" or sworn charge is a jurisdictional requirement. So far so good. But then the Court said that the Fair Employment and Housing Act does not specifically require the employee alleging discrimination him or herself to provide the verification. So, because the law did not expressly say that the charging party - the person with knowledge of the facts - has to sign his or her own charge, the Legislature did not care who actually swears to the allegations. Stop rolling your eyes, they could get stuck that way.
At the end of the opinion, the Court includes a couple of admonitions for the plaintiff's bar:
We hold an attorney may verify a DFEH complaint for his or her client by subscribing his or her own name to the complaint. The attorney may not verify by signing the client's name. We would, however, caution attorneys about verifying such complaints unless they believe the allegations made therein to be true and they are acting in good faith as they are subject to penalties for perjury if they sign their name to DFEH complaints.**** Caution: Private musings follow *******
So, let's review. Before a lawyer swears to facts under penalty of perjury in lieu of the client who has personal knowledge of the facts, the lawyer at least should believe the facts are true, and the lawyer should not sign the client's own name. And there I was about to say the Court's decision turned the signature on the charge into something essentially meaningless. Hmmm....I wonder if defense lawyers will start taking depositions of plaintiff's attorneys who sign these charges.
Friday, July 14, 2006
Thursday, July 13, 2006
Here is the Board's discussion of the policy language that the Board held violated the NLRA:
The Respondent’s 2000 handbook, under the heading “Corrective Action/ Employee Conduct,” states that “Unauthorized disclosure of confidential information regarding customers, employees, or the business of the company” is conduct subject to discipline, including discharge. A provision directly following this general confidentiality provision, under the heading “Privileges of a Team Member,” states, “Your pay is confidential company information and should not be discussed with fellow employees.” Neither of the aforementioned provisions appears in the 2003 handbook, which at relevant times was distributed to only five unit employees. However, the 2003 handbook, under the heading “Professional Behavior,” states that the Respondent “expects compliance with the following behaviors . . . Maintain confidentiality, including but not limited to, information regarding customers, employees and the company.” The handbook further states that employees are “expected to adhere to the policies and procedures that protect customer and employee confidential information, and thereby, comply with federal and state privacy laws,” and that the Respondent trusts employees not to disclose “such information to unauthorized persons, or organizations, or using it for personal gain.”Sounds like a lot of handbooks, right? Well, here's what the NLRB said about the confidentiality language:
As noted, the 2000 handbook contains a general confidentiality provision and a
particular confidentiality provision prohibiting the discussion of wages. The 2003 handbook contains a general confidentiality provision. . . . . With respect to the general provisions, which are alleged to be unlawful, we believe that they must be read in the context of the particular provision and Gilbert’s specific affirmation that the Respondent considered employee wage rates to be confidential information. So read, we conclude that the general provisions of the 2000 and 2003 handbooks, which prohibit the disclosure of confidential information, are unlawful.
Does the confidentiality language above seem similar to the one in your handbook? Are employees prohibited from discussing working conditions including their wages? There are a number of provisions in an employee handbook that may implicate the National Labor Relations Act, including solicitation, bulletin boards, prohibitions on discussing wages, promises to abide by all policies, and even "insubordination" prohibitions. The NLRB may take jurisdiction of a claim even when the employer is "non-union." So, be careful out there....
In most states, one party to a conversation lawfully may record it without letting the other party know. But, along with several other states, California is a "two party" state - both parties must consent to the recording. So ,what happens when one party to a call is in California, and the other party is recording in a "one-party" state?
The California Supreme Court said today in Kearney v. Salomon Smith Barney, that a business located outside California may violate California law by recording a phone call with a California-based person. However, the Court emphasized that the law does not apply when the business announces that calls are recorded:
California law does not totally prohibit a party to a telephone call from recording the call, but rather prohibits only the secret or undisclosed recording of telephone conversations, that is, the recording of such calls without the knowledge of all parties to the call. Thus, if a Georgia business discloses at the outset of a call made to or received from a California customer that the call is being recorded, the parties to the call will not have a reasonable expectation that the call is not being recorded and the recording would not violate section 632.Now you know why you hear "calls may be monitored or recorded for quality assurance purposes" at the beginning of a call. You also now know why employers who record California employees' conversations cannot do so without their consent.*
* As the Court noted, there are narrow circumstances under which secret recording is permitted:
Other provisions of the statutory scheme identify a number of limited circumstances in which secret recording by one party to a communication is permissible, such as when the recording is made “for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m [making obscene phone calls with the intent to annoy]” (§ 633.5), or when a victim of domestic violence, acting pursuant to court authorization, records “any prohibited communication made to him or her by the perpetrator” of domestic violence (§ 633.6, subd. (a)).
Wednesday, July 12, 2006
The voters of California pared back the UCL in November 2004 with the passage of Proposition 64. Among the initiative's most important components - a requirement that a plaintiff have "standing" - actual injury in fact - in order to assert the claim.
In this non-employment law case, Pfizer v. Superior Court, a plaintiff tried a UCL class action alleging that Pfizer falsely advertised Listerine as a substitute for dental floss. The plaintiff tried to define the class as anyone who bought Listerine during the class period.
The Court of Appeal held that Prop. 64 requires each member of a purported class to have suffered actual injury. Thus, it is not enough that a class member merely purchased Listerine during the class period.
This case will help employment practitioners in cases where the plaintiff cannot say that each putative class member actually suffered injury as a result of a practice. Thus, for example, in an overtime case, the employer can argue a UCL claim should not include class members who did not actually work overtime because those putative class members did not suffer "actual injury" as a result of alleged mis-classification.
Monday, July 10, 2006
[Labor Code section]201. (a) If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.
Unfortunately, L'Oreal is 0-2 in employment law cases before the California Supreme Court this Term.
Sunday, July 09, 2006
Apparently, the employer did not litigate whether Dark had a disability under the ADA standard, which is tough on employees. The opinion is silent on this point. The court moved on to the County's legitimate business reason for termination, holding it was insufficient for summary judgment. Dark's supervisor stated Dark was fired because he could not safely perform his essential job functions and was a direct threat to himself or others. But when Dark appealed to the Curry County Board of Commissioners, the Board found that Dark engaged in misconduct by reporting to work despite the Aura and not telling his co-workers of the possibility of a seizure. On appeal, the County insisted on the latter explanation (probably because there were no efforts to reasonably accommodate Dark, putting the county into a difficult legal position).
The Court held the County was not permitted to argue Dark's falling unconscious behind the wheel is "misconduct," because it arose from the disability itself. The Court distinguished cases (e.g., Collings v. Longview Fibre), in which an employee was fired after engaging in misconduct arising from drug or alcohol use, and where the employee engaged in egregious criminal conduct (e.g., Newland v. Dalton). The Court also noted Dark provided evidence of six employees' accidents where the employees escaped discipline. Apparently, even Dark himself previously had been involved in accidents but was not disciplined at all.
The other significant issue addressed is the employer's obligation to accommodate. The County made no effort to engage Dark in an "interactive process" and offered him no accommodation in light of the misconduct conclusion. The Ninth Circuit reiterated that employers have an affirmative duty to engage in the interactive process to determine whether accommodation is possible. In this case, temporary reassignment to a non-hazardous was a possible accommodation. The court held that the employer must consider reassignment to a vacant position that is either vacant now OR is likely to become vacant in the reasonably near future. This is a mushy standard will create much uncertainty for employers seeking a workable standard for evaluating temporary transfer as a form of accommodation.
Wednesday, July 05, 2006