Labor & Employment Law Blog

Late last week, Governor Schwarzenegger approved a clarification of the law on appeals of Labor Commissioner decisions.  Meanwhile, SB 1121, concerning overtime for agricultural workers, reached the Governor's desk on July 20, and the Senate amended a bill concerning background checks.  A summary of these bills and key developments follow below.

In one of the first decisions interpreting the legal enforceability of California’s anti-labor injunction statute, a California appellate court held on July 19, 2010 that the law did not prevent a grocery store from obtaining an injunction against a union for picketing on its private property. The court specifically held that the statute, Labor Code section 1138.1, was unconstitutional as applied to that dispute because it conferred greater legal protection on picketing than other forms of speech, and declared labor protests on private property to be legal even though a similar protest concerning a different issue would constitute trespassing.

Sometimes, in refusal to hire cases, older applicants argue that they were victims of age discrimination if they were not offered job interviews or considered for the position applied for. In the case of Reeves v. MV Transportation, Inc. filed July 9, 2010, a California appellate court rejected just such a claim, in the case of a transportation company who hired a younger attorney for an in-house general counsel position based on a favorable general impression and a recommendation from a known colleague.

Two employment-related bills we have been tracking were sent to Governor Schwarzenegger this month:

AB 2772 (Swanson) Appeal Bonds - This bill would clarify that an employer wishing to appeal an administrative judgment by the Labor Commissioner is required to first post a bond.

Labor Code Section 98.2 currently provides: "Whenever an employer files an appeal pursuant to this section, the employer shall ...

When employers seek to compel employees to arbitrate their claims under an Arbitration Agreement, they are often met with arguments that they have “waived” their right to arbitrate by waiting too long to seek it or by engaging in acts inconsistent with the arbitral process.  In the recent case of Zamora v. Lehman, filed June 29, 2010, the California Court of Appeal held that just such a waiver occurred, by virtue of a party having sought extensive discovery in court proceedings before it tried to enforce an arbitration agreement.

Can an independent contractor sue a general contractor for injuries he sustains on a construction site as a result of a “peculiar risk” inherent in the nature of the work? No, said the California Supreme Court in the case of Tverberg v. Fillner Construction, Inc., issued June 28, 2010, because the independent contractor assumes responsibility for workplace safety by entering into a contract requiring the performance of inherently dangerous work.

Today, in Faulkinburty v. Boyd & Associates, Inc., the California Court of Appeal issued a decision that might prove helpful to employers opposing motions for class certification of wage and hour claims.  The court reiterated that it is the plaintiff(s)' burden to show his or her claims are susceptible to common proof (i.e. proof of alleged liability common to all of the purported class members) and that a defendant employer "'may defeat class certification by showing that an affirmative defense would raise issues specific to each potential class member and that the issues presented by that defense predominate over common issues.'"

On June 22, 2010, the Department of Labor (DOL) issued an Administrative Interpretation clarifying the definition of “son or daughter” as it applies to an employee standing in loco parentis to allow individuals who provide day-to-day care of a child to take leave under the Family Medical Leave Act (FMLA). 

The FMLA entitles an employee to 12 workweeks of leave for the birth or placement of a son or daughter ...

The California legislative season is in full swing.  Among the proposed bills this year are several involving changes to meal and rest period regulations, some new leave entitlements, and legislation that may affect the hiring and firing process.  We will be monitoring these and other bills throughout the summer as the August 31, 2010 deadline for bill passage approaches. 

AB 482 (Mendoza) Consumer Credit ...

One issue that often arises in litigation over arbitration agreements is “Who gets to decide if the agreement to arbitrate is valid?” This is usually a “gateway issue” for the courts to decide under both the federal and California arbitration statutes. However, sometimes the parties specifically agree that the arbitrator can decide issues of contract validity and enforceability, in order to ensure that their entire dispute is resolved in arbitration.