Storm's California Employment Law

Employee Free Choice Act

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.

Murphy

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.

Prop 64: Applies to pending cases

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. 

U-Haul - Arbitration Agreements

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."

Good Article on Locker Fracas

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.

Locker: Firing Was Political

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.

Law Professor: Summary Judgment Unconstitutional

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.

Gallup Poll: Lawyers Not So Bad

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.

Prop 64: It's been a year, and still no answer

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.