Friday, December 28, 2012

California Supreme Court Allows Labor Picketing at Shopping Center

But, the Court also held that the Ralphs Grocery parking lot at the Sacramento area center is NOT a public forum, where speech cannot be prevented.  We posted about the Court of Appeal's decision here, by the way.

The Supreme Court decided that two provisions of California law can protect labor picketing against trespass claims, even though the picketing occurred on private property - a parking lot and entrance to a Ralphs store.   The picketing would be allowed even if non-labor picketing would constitute a trespass.   The way the law allows this is by limiting the grounds under which courts will issue injunctions against picketing to narrow circumstances.  For good measure, the law makes it harder to prove those circumstances than other types of cases.

That sounds a lot like a First Amendment violation to me, because the government is picking and choosing what kind of speech is worthy of protection and what is not.  And that is what Justice Chin essentially said in dissent.  But, the Supreme Court majority disagrees with yours truly on that point, and the Court tends to hold more sway than Greggy's blog, no matter how wrong it is. I kid. :)

OK, here comes a long explanation if you can hang in there - 

So, here's what happened as told by the Supreme Court-

When the College Square Foods Co store opened in July 2007, agents of defendant United Food and Commercial Workers Union Local 8 (the Union) began picketing the store, encouraging people not to shop there because the store‘s employees were not represented by a union and did not have a collective bargaining agreement. The Union‘s agents, in numbers varying between four and eight, walked back and forth on the entrance walkway carrying picket signs, speaking to customers, and handing out flyers. These activities generally occurred five days a week (Wednesday through Sunday) for eight hours a day. The Union‘s agents did not impede customer access to the store.
[ I bolded this because if the union did block access to the store, even the union-friendly law under review would permit an injunction]... Anyway, more from the Court's opinion -

In January 2008, Ralphs notified the Union in writing of its regulations for speech at its Foods Co stores, including the one in College Square. Those store regulations prohibit speech activities within 20 feet of the store‘s entrance and prohibit all such activities during specified hours and for a week before certain designated holidays. The store regulations also prohibit physical contact with any person, the distribution of literature, and the display of any sign larger than two feet by three feet. The Union‘s agents did not adhere to Ralphs‘s speech regulations. In particular, they handed out flyers and stood within five feet of the store‘s entrance. Ralphs asked the Sacramento Police Department to remove the Union‘s agents from the College Square Foods Co store, but the police declined to do so without a court order.

OK, so why did the police refuse to get rid of the trespassers on Ralph's private property?   Because they're in a union, too.   They said would only enforce a court order prohibiting the conduct, unless they saw some sort of crime occurring, which was not happening.  So, off Ralphs went to Court for an injunction, where it met the Moscone Act. 

In essence, the Moscone Act (actually two different laws) says that courts cannot enjoin peaceful picketing, gathering, etc. It also imposes a tough evidentiary burden on employers seeking to obtain an injunction, including a requirement of live witness testimony.

The Court of Appeal decided that Ralphs parking area and store entrance were not public forums, so California's broad constitutional right to free speech in public areas would not apply.  Then  the Court of Appeal said that the Moscone Act unconstitutionally permitted some kinds of speech on private property (labor protests), but did not protect others (e.g., anti-abortion protests).  The lower Court reasoned that when the government chooses one type of content for protection, that violates the First Amendment.

On review, the Supreme Court first held that every outdoor shopping plaza is not a public forum, where the First Amendment protects all kinds of speech:
to be a public forum under our state Constitution‘s liberty-of-speech provision, an area within a
shopping center must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation, and not merely to walk to or from a parking area, or to walk from one store to another, or to view a store‘s merchandise and advertising displays.
Applying this standard, the Court then decided that the College Station shopping plaza was not a protected public shopping mall where the First Amendment would apply.

So, now, Ralphs has private property and it wants to eject or limit conduct on its property via an injunction against a trespasser.  The Supreme Court had to decide if the Moscone Act's limits on injunctions violated Ralph's constitutional rights.

The Supreme Court decided the Court of Appeal was wrong, and that the Moscone Act can favor union picketing on private property without violating the Constitution.  Here is the Court's explanation of the law itself:
certain activities undertaken during a labor dispute are legal and cannot be enjoined. (Id., §527.3, subd. (b).) Those activities are:

“(1) Giving publicity to, and obtaining or communicating information regarding the existence of, or the facts involved in, any labor dispute, whether by advertising, speaking, patrolling any public street or any place where any person or persons may lawfully be, or by any other method not involving fraud, violence or breach of the peace.

“(2) Peaceful picketing or patrolling involving any labor dispute, whether engaged in singly or in numbers.

“(3) Assembling peaceably to do any of the acts specified in paragraphs (1) and (2) or to promote lawful interests.” (Code Civ. Proc., § 527.3, subd. (b).)

Expressly excluded from the Moscone Act’s protection, however, is “conduct that is unlawful including breach of the peace, disorderly conduct, the unlawful blocking of access or egress to premises where a labor dispute exists, or other similar unlawful activity.” (Code Civ. Proc., § 527.3, subd. (e).)

In addition, the law imposes burdens on courts and businesses seeking injunctions for violations:
Section 1138.1 prohibits a court from issuing an injunction during a labor dispute unless, based upon witness testimony that is given in open court and is subject to cross-examination, the court finds each of these facts:

“(1) That unlawful acts have been threatened and will be committed unless restrained or have been committed and will be continued unless restrained, but no injunction or temporary restraining order shall be issued on account of any threat or unlawful act excepting against the person or persons, association, or organization making the threat or committing the unlawful act or actually authoriz[ing] those acts. “(2) That substantial and irreparable injury to complainant’s property will follow.

“(3) That as to each item of relief granted greater injury will be inflicted upon complainant by the denial of relief than will be inflicted upon defendants by the granting of relief.

“(4) That complainant has no adequate remedy at law.

“(5) That the public officers charged with the duty to protect complainant’s property are unable or unwilling to furnish adequate protection.” (§ 1138.1, subd. (a).)

OK, I've bolded what makes the Moscone Act tough on those who seek injunctions even against violent union conduct that is unprotected.  First, in most cases, a court will issue a temporary injunction  on papers.  For labor injunctions, there must be live testimony. Second, the injunction can be issued only against individuals that violate the Act specifically, not against a whole union, absent proof that the whole union is actually authorizing the conduct. Tough to get the names of the folks breaking stuff outside your store, right?
Oh, and you have to put on evidenced that the police cannot or will not help. Easy breezy!  These requirements just do not apply to temporary injunctions in other contexts.

So, the Supreme Court did not see a problem with this. First, the Court surveyed a long line of cases recognizing the rights of unions to conduct peaceful picketing on private walkways outside of businesses.  The Court then did its best to overcome federal decisions holding that laws could not restrict one kind of speech, but not another.  The Supreme Court's rationale was that the Moscone Act does not restrict speech, it merely insulates union speech from legal action.

The Supreme Court apparently does not agree that the general rules permitting injunctions restrict speech on private property.  That is, if you come to my business to picket about some non-labor related issue, I can obtain an injunction more easily because I don't have to follow the Moscone Act. As such, the California Code of Civil Procedure contains a content bias.

Anyway, there are a number of concurring and dissenting opinions, too. The Chief Justice tried to write a concurrence softening the blow of the majority ruling, but Justice Liu essentially called "bull" on the CJ's opinion, arguing that the CJ's interpretation of the majority's opinion was not supported.  As I said earlier, Justice Chin wrote a dissent that I thought was correct, but what do I know?

This may not be the end of this discussion. The Court appears to have opined on federal law, which means that the U.S. Supreme Court likely has jurisdiction to consider whether the First Amendment trumps California law.  We will see what happens next.

I know, long post, but complex issue.  Bottom line - business owners have little power to exclude union picketing, absent (1) fairly egregious conduct (2) money to conduct a mini-trial in court to obtain an injunction and/or (3) business-friendly local politicians / police.  I emphasize that this decision applies to any business located on private property, such as an office park complex.  It's not limited to grocery stores or malls.  The Moscone Act protects picketing from trespass injunctions all over the place.

The opinion is Ralphs Grocery Co. v. UFCW, Local 8 and the opinion is here.

Tuesday, December 25, 2012

Court of Appeal: Employee May Use Ralph Act in Certain Sexual Harassment Cases

Sylvia Ventura was a custodian, working for American Building Maintenance or ABM.  According to her lawsuit, she suffered serious harassment, including touching, threats, etc.  She sued not under the Fair Employment and Housing Act, but under what is known as the Ralph Act, Civil Code Section 51.7.   That section provides in part:

All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of political affiliation, or on account of any characteristic listed or defined in subdivision (b) or (e) of Section 51, or position in a labor dispute, or because another person perceives them to have one or more of those characteristics.

So, one of the characteristics in Section 51(b) or (e) is sex. Therefore, violent acts that would be consistent with "sexual harassment" in employment law fall within this definition. 

But the Ralph Act does not require employees to file an administrative charge, the remedies are different, and the statute of limitations is longer. There also is no requirement that the offending conduct satisfy the "hostile work environment" standard applicable to sexual harassment cases.

Upholding a jury's verdict, the court of appeal decided (2-1) that the Ralph Act applies in employment cases, despite overlap with the FEHA. There is precedent for this conclusion.  But the court also held that the Act covered the conduct alleged, even though there was little to no evidence that the harasser was motivated by negative feelings about the plaintiff's sex, i.e., hate.  Rather, the evidence at trial showed that he was enamored / in love, which caused him to engage in inappropriate conduct. 

As the dissent points out, the majority's decision may expand the Ralph Act to cover more than it was intended to address.  It also potentially creates a major collision with the Fair Employment and Housing Act for the reasons I explained above. 

The rest of the opinion, unfortunately, is an indictment of the defense attorneys' advocacy.  For example, the court of appeal noted that the jury found for the plaintiff on a negligence claim, which should have been barred by Workers' Compensation preemption. The court of appeal held that issue was waived because it was not argued in the trial court.  The court of appeal noted other waivers and alleged errors as well, including the failure to differentiate among the defense entities to identify the employer and exonerate the non-employers.  Reading this opinion, one can't help but conclude that getting this employment law litigation business right is tough. There are a lot of time-sensitive substantive and procedural matters to juggle, especially at trial.

The case is Ventura v. ABM Industries Inc., et al. and the opinion is here.


Friday, December 21, 2012

California Employers - Don't Forget your EITC Notice....

EITC? Huh?  The California Legislature requires employers to give annual notices to all employees of their right to claim an Earned Income Tax Credit.  Information and sample notices - here.

Happy holidays!


Tuesday, December 11, 2012

Court of Appeal Endorses "Business Judgment" Jury Instruction in Discrimination Cases

The court of appeal in Veronese v. Lucasfilm issued a highly significant ruling that will bring some balance to jury instructions in discrimination cases.  The pattern jury instructions (called CACI) do not address adequately that the jury is responsible for finding illegal discrimination only.  It is not entitled to second-guess whether the employer's judgment was sound, whether the employer correctly determined the plaintiff was a bad employee, etc.   Put another way, the employer's business judgment is entitled to deference unless there is evidence of illegal motivation.

So, Lucasfilm was going to hire Julie Veronese to help manage George Lucas's estate. Veronese is the wife of an employment law attorney, plaintiff's side. Ultimately, the employment relationship did not work out, which Veronese attributed to her pregnancy.  Lucasfilm asserted legitimate reasons for ending Veronese's temporary assignment, and for not hiring her into a regular job.    A jury found against Lucasfilm on some claims, awarding her six figures. The attorney's fees award, though, was over one million dollars (!).  [I'm in the wrong business. -ed.].  Oh wait. Right business; wrong side!

Anyway, the employer appealed, primarily arguing that the trial court refused to give what was called a "business judgment" jury instruction.   The court of appeal agreed that the instruction should have been given.  Here is the discussion.

Judge Taylor instructed the jury that it should find for Veronese if her pregnancy was “a motivating reason” for Lucasfilm’s decision, specifically instructing as follows: “Julie Gilman Veronese must prove . . . [t]hat [her] race, gender or pregnancy, or her complaint about pregnancy discrimination was a motivating reason for the discharge . . . .” And “A motivating reason is a reason that contributed to the decision to take action, even though other reasons also may have contributed to the decision.” The instruction was based on CACI 2500. * * * *
It Was Error to Refuse a “Business Judgment” Instruction
Lucasfilm proposed special instruction no. 9, as follows: “You may not find that Lucasfilm discriminated or retaliated against Julie Gilman Veronese based upon a belief that Lucasfilm made a wrong or unfair decision. Likewise, you cannot find liability for discrimination or retaliation if you find that Lucasfilm made an error in business judgment. Instead, Lucasfilm can only be liable to Julie Gilman Veronese if the decisions made were motivated by discrimination or retaliation related to her being pregnant.”

* * *

Refusing this instruction was error.  * * * *
 As our colleagues in Division One have put it, a plaintiff in a discrimination case must show discrimination, not just that the employer’s decision was wrong, mistaken, or unwise. (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 673-674.) Or, as another Court of Appeal has said, “ ‘The employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason. . . . “While an employer’s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is . . . whether the given reason was a pretext for illegal discrimination. The employer’s stated legitimate reason . . . does not have to be a reason that the judge or jurors would act on or approve.” ’ ” (Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 344; accord, Hersant v. Department of Social Services (1997) 57 Cal.App.4th 997, 1005.) In Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 358, the Supreme Court affirmed a summary judgment for the employer in an age discrimination case. Doing so, the court noted as follows: “On the other hand, if nondiscriminatory, Bechtel’s true reasons need not necessarily have been wise or correct. [Citations.] While the objective soundness of an employer’s proffered reasons supports their credibility . . . , the ultimate issue is simply whether the employer acted with a motive to discriminate illegally. Thus, ‘legitimate’ reasons [citation] in this context are reasons that are facially unrelated to prohibited bias, and which, if true, would thus preclude a finding of discrimination. (See, e.g., Kariotis v. Navistar Intern. Transp. Corp. (7th Cir. 1997) 131 F.3d 672, 676 [suggesting that proffered reasons, if ‘nondiscriminatory on their face’ and ‘honestly believed’ by employer, will suffice even if ‘foolish or trivial or baseless’]; McCoy v. WGN Continental Broadcasting Co. (7th Cir. 1992) 957 F.2d 368, 373 [ultimate issue is whether employer ‘honestly believed in the reasons it offers’]; see also Fuentes v. Perskie (3d Cir. 1994) 32 F.3d 759, 765 [issue is discriminatory animus, not whether employer’s decision was ‘wrong or mistaken,’ or whether employer is ‘wise, shrewd, prudent, or competent’].)”

 There are other significant jury instructions discussed, including relating to damages.  But the above discussion is key. That is because the jury only has to find discrimination /retaliation are "a" motivating reason for taking action. And a jury only has to find discrimination / retaliation by a "preponderance" of the evidence (50.00001%).   So, the employer should be able to argue to the jury that a decision the jury disagrees with is not ipso facto discriminatory.  Before this decision, it was hard to persuade trial judges to give these instructions.

The case is Veronese v. Lucasfilm LTD and the opinion is here.

Monday, December 03, 2012

U.S. DOT Rejects State Laws Re Marijuana Legalization

The U.S. Department of Transportation requires drug testing of certain commercial vehicle operators, and requires employers to ensure drivers who test positive do not drive.
In the November 2012 elections, states such as Washington and Colorado passed laws legalizing recreational use of marijuana.  There also is a growing number of states with medical marijuana laws.
The DOT has now issued a response to these laws, available here.  In essence, the DOT says that state laws do not affect the federal agency's enforcement position:

We want to make it perfectly clear that the state initiatives will have no bearing on the Department of Transportation’s regulated drug testing program. The Department of Transportation’s Drug and Alcohol Testing Regulation – 49 CFR Part 40 – does not authorize the use of Schedule I drugs, including marijuana, for any reason.

Therefore, Medical Review Officers (MROs) will not verify a drug test as negative based upon learning that the employee used “recreational marijuana” when states have passed “recreational marijuana” initiatives.

We also firmly reiterate that an MRO will not verify a drug test negative based upon information that a physician recommended that the employee use “medical marijuana” when states have passed “medical marijuana” initiatives.

It is important to note that marijuana remains a drug listed in Schedule I of the Controlled Substances Act. It remains unacceptable for any safety‐sensitive employee subject to drug testing under the Department of Transportation’s drug testing regulations to use marijuana.

We want to assure the traveling public that our transportation system is the safest it can possibly be.