Volume 22 No. 2

March 2008

Official Publication of the State Bar of California Labor and Employment Law Section

Benjamin G. Shatz is a certified appellate specialist in the MCLE Self-Study Appellate Practice Group of Manatt, Phelps & Phillips, LLP, and serves as Vice-Chair of the L.A. County Bar THE EMPLOYMENT LAWYER’S Association Appellate Courts Committee and a member GUIDE TO CALIFORNIA of the State Bar’s Committee on Appellate Courts. ANTI-SLAPP LAW Cameron Fredman is an associate in Manatt’s Los Angeles office. By Benjamin G. Shatz and Cameron Fredman

It seems like hardly a day passes political expression by common citizens. CALIFORNIA’S ANTI-SLAPP without a California court issuing a deci- For instance, “[t]he paradigm SLAPP is a ENACTMENT & AMENDMENTS sion involving the state’s anti-SLAPP suit filed by a large land developer against statutes.1 Commentators call it an “explo- environmental activists or a neighbor- The sociologists’ article struck a sion” that “clog[s] our courts.”2 The anti- hood association intended to chill the nerve, and soon anti-SLAPP legislation SLAPP statutes have evolved from defendants’ continued political or legal passed in states nationwide. California’s relative obscurity to a powerful weapon opposition to the developers’ plans.”5 In anti-SLAPP statute, Code of Civil in the defendant’s arsenal, like a summa- other words, a SLAPP action is filed not Procedure section 425.16, took effect in ry judgment motion—but without the to vindicate the plaintiff’s rights or seek 1993 and begins with an explanatory pol- 75-day notice period, without discovery, redress, but rather to interfere with the icy statement: “The Legislature finds and and with the potential for attorneys’ fees. defendant’s First Amendment rights. A declares that there has been a disturbing This article addresses the origins and substantive lack of merit is a hallmark of increase in lawsuits brought primarily to operation of the statutes and then turns SLAPP suits—the plaintiffs care less chill the valid exercise of the constitu- to some unique situations presented by about winning on the merits and more tional rights of freedom of speech and 7 anti-SLAPP in the employment context. about intimidating an opponent and petition for the redress of grievances.” As tying up their resources. one court put it, “the point of the anti- 3 ANTI-SLAPP’S ORIGINS The favored causes of action in SLAPP statute is that you have a right not SLAPP suits should sound familiar to to be dragged through the courts because Nearly twenty years ago, in 1988 two 8 employment litigators: defamation, you exercised your constitutional rights.” sociologists published an article, Strategic interference with prospective economic The meat of the statute provides that Lawsuits Against Public Participation,4 advantage, nuisance, and intentional [a] cause of action against a per- discussing how powerful private interests infliction of emotional distress.6 son arising from any act of that use civil litigation to stifle and deter continued on page 30

— Inside the Review — 1 MCLE Self-Study: The Employment Lawyer’s Guide to California Anti-SLAPP Law | 3 The NLRB and California Supreme Court Provide Important Guidance Concerning Interplay Between Property and Speech Rights | 4 A Matter of Logic—California Supreme Court Says a Plaintiff Must Show Ability to Perform Essential Duties in Green v. State of California | 5 Public Sector Case Notes | 6 Employment Law Case Notes | 7 NLRA Case Notes | 8 ADR Case Notes 9 Wage & Hour Update | 10 Cases Pending Before the California Supreme Court | 35 Message from the Chair www.calbar.ca.gov/laborlaw LABOR AND EMPLOYMENT LAW SECTION MEMBERSHIP ENROLLMENT

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2 California Labor & Employment Law Review Volume 22, No. 2 Jeffrey S. Bosley is a partner with the Labor and Employment Department of Winston & Strawn LLP, and argued Guard The NLRB and California Supreme Publishing before the National Labor Relations Board on behalf of Court Provide Important Guidance the Employers Group. Nicole Friedenberg is an associate in the Concerning Interplay Between Labor and Employment Group of 1 Winston & Strawn LLP, and recent- Property and Speech Rights ly completed a clerkship with the Hon. Patricia A. Seitz, United States District Court for the ByJeffrey S. Bosley and Nicole Friedenberg Southern District of Florida.

In three significant recent cases, the On three occasions in 2000, Guard ny system to solicit support for any out- National Labor Relations Board (Board) Publishing (which publishes the Register- side organization.10 This evidence was key and the California Supreme Court have Guard newspaper) reprimanded its to the Board’s articulation of its new stan- examined the interplay between property employee and president of the Eugene dard concerning discrimination. This rights and the rights of employees and Newspaper Guild (Guild), Suzi standard focuses on whether there has unions to engage in organizing activity Prozanski, for using its premises and its e- been “unequal treatment of equals.” The and other communications. These cases mail system to communicate with Guild Board stated: “unlawful discrimination have been hotly contested, and the two members.4 On May 4, 2000, Prozanski consists of disparate treatment of activi- resulting decisions closely divided. While used a company computer and the com- ties or communications of a similar char- one of these cases remains pending, the pany system to send an e-mail to Guild acter because of their union or other rare oral argument conducted by the members “clarifying” an issue concerning Section 7-protected status.”11 Board in that case indicates that it, too, a union rally the previous day.5 On The Board’s new rule rejects the could be a closely divided opinion. August 14, 2000, she used a Guild com- notion that, once an employer allows any This article describes the cases, and puter to send an e-mail through the com- type of non-work communication, it the guidance they provide on several key pany’s system to Guild members, must allow all types of non-work com- issues, which include: How much control requesting that they wear green in sup- munications. Under the new standard, an does a private property owner actually port of the union’s position in negotia- employer that allows employees to send have over its property? To what extent can tions.6 Four days later, she sent another personal e-mail messages about social employees exercise their Section 7 rights e-mail from a Guild computer through gatherings, but prohibits them from on, or using, their employer’s property? the company’s system, seeking help with sending e-mails soliciting support for an Can employees or union representatives the union’s entry in an upcoming outside organization, can also prohibit enter private property to seek assistance parade.7 In disciplining Prozanski for solicitations in support of a labor organi- with their labor disputes from customers sending these e-mails, Guard Publishing zation.12 Thus, because Prozanski’s May and clients? While the full impact of these relied on the following policy: 2000 e-mail was not a call to action, but cases will be debated for some time, they Company communication systems merely clarified the facts surrounding a provide some important and long await- and the equipment used to operate the union rally, it did not violate Guard ed guidance to practitioners on these communication systems are owned and Publishing’s solicitation policy.13 issues. provided by the company to assist in con- Notably, the Board distinguished the ducting the business of the Register standard articulated in the United States E-MAIL SOLICITATION USING Guard. Communications systems are not Supreme Court’s decision in Republic EMPLOYER PROPERTY: THE GUARD to be used to solicit or proselytize for Aviation Corp. v. NLRB.14 As a matter of PUBLISHING CASE commercial ventures, or religious or first impression, the Board held that political causes, outside organizations, or Republic Aviation did not apply to access- On December 16, 2007, a sharply other non-job-related communications.8 ing employer-owned e-mail systems, as divided Board2 upheld a private employ- The Board held that Guard that case only involved face-to-face com- er’s e-mail policy prohibiting non-job- Publishing did not violate the National munications.15 In Republic Aviation, the related solicitations, including union Labor Relations Act (Act) by reprimand- Supreme Court and the Board agreed solicitations. In finding that employees ing Prozanski with respect to her two that banning all solicitation during non- have no statutory right to use their August 2000 e-mails, but did with respect working time was unlawful, and required employer’s e-mail system to engage in to her May 2000 e-mail because it was not an employer “to yield its property inter- “Section 7 communications,” the Board a solicitation for an outside group.9 ests to the extent necessary to ensure that likened e-mail systems to other employer- Although the record demonstrated that employees will not be entirely deprived of owned communications systems such as Guard Publishing was aware employees their ability to engage in Section 7 com- bulletin boards and telephones, whose use had used its e-mail system to send and munications in the workplace on their can be restricted if done in a non-discrim- receive personal messages including baby own time.”16 But, the Guard Publishing inatory manner.3 The Board also announcements, party invitations, and policy did not in any way regulate announced a new standard for determin- services like dog-walking, there was no employees’ rights to engage in traditional ing when an employer is applying a solici- evidence that employees used the compa- oral solicitation and distribution of liter- tation policy in a discriminatory manner. continued on page 13

Volume 22, No. 2 California Labor & Employment Law Review 3 A Matter of Logic—California Michelle Logan-Stern is a Deputy Attorney General practicing employment law at the Supreme Court Says a Plaintiff Must California Department of Justice. Ms. Logan- Show Ability to Perform Essential Stern served as trial counsel in the Green matter Duties in Green v. State of and handled all post-trial and appellate work in the case. Ms. Logan-Stern represents State California departments and agencies in all facets of state and federal employment law, including coun- By Michelle Logan-Stern seling, litigation, and appeals.

Though appearing to be well settled for Men (Department). Green’s duties On appeal, the Department raised by case law, the elements of a claim for included maintenance and repair of large several bases for a new trial, including a disability discrimination became hotly equipment and mechanical systems, and claim that the trial court committed prej- contested when a San Bernardino County supervision and instruction of a crew of udicial error in failing to properly trial court accepted jury instructions inmates. instruct the jury on the elements of a dis- predicated upon California regulations Around 1990, Green was diagnosed ability discrimination claim under the instead of judicial precedent. This deci- with hepatitis C.3 Though he had other- Fair Employment and Housing Act sion relieved the plaintiff of the burden of wise functioned normally at work, inter- (FEHA) and the relevant defenses.6 The proving his ability to perform his job. It feron treatment for his condition caused court of appeal upheld the trial court’s established the inability to perform as an Green to feel fatigued, to have trouble determination that the Department had affirmative defense. This was the situation sleeping, and to suffer headaches and the burden of proving inability to per- in Green v. State of California,1 recently body aches. At times, he was restricted to form as an affirmative defense. The decided by the California Supreme Court light duty due to the effects of the inter- California Supreme Court granted the in a split opinion that diverged primarily feron treatments. Department’s petition for review on the based on a matter of logic. In July 2000, Green was told that issue of which party bore the burden of In Green, the trial court gave the based on unresolved work restrictions proof regarding the ability to perform. applicable BAJI2 jury instructions on the imposed by a “Qualified Medical discrimination cause of action, which did Examiner” in the course of his related THE ELEMENT OF QUALIFICATION not include ability to perform the essen- worker’s compensation proceedings, he Justice Chin authored the majority tial duties of the job as part of the plain- was prohibited from performing some opinion for the court. The court acknowl- tiff’s burden of proof. The instructions, essential duties of his position and could edged that until Green, courts had unani- based on California regulations predating not return to work without full clearance mously presumed that a plaintiff in a much of the applicable case law, present- from those restrictions. Green did not disability discrimination action was ed the inability to perform as an affirma- obtain clearance from the restrictions and required to prove he was “qualified” for a tive defense. As the case law construed the took a disability retirement. position, and that such proof of qualifica- ability to perform as an essential element Green subsequently filed an admin- tion was the ability to perform the essen- of the plaintiff’s claim, the trial illuminat- istrative claim with the Department of tial job duties with or without reasonable ed a split of opinion regarding which Fair Employment and Housing, alleging accommodation. The court then explored party bore the burden of proof on the disability discrimination and failure to the issue of whether this judicial interpre- ability to perform. accommodate. He then filed a complaint tation of Government Code section On August 23, 2007, the supreme for damages in the superior court based 12940(a) and (a)(1) was correct. court settled the issue. It noted that a on the same claims. The court considered the issue of plaintiff bears the burden of proving all At trial, the Department stipulated who bore the burden a matter of statuto- elements essential to a claim. It deter- that Green was disabled based on the ry construction, and in the end found mined that the essential elements of a dis- restrictions caused by his hepatitis C. It that the statute dictated a clear and ability discrimination claim included the also submitted a special jury instruction unambiguous answer. The first step in the plaintiff’s ability to perform essential job based on Brundage v. Hahn4 and proposed court’s analysis was to ascertain and effec- duties with or without reasonable accom- CACI instruction No. 2540,5 which tuate legislative intent. The court looked modation. Based on this rationale, the required Green to prove he could perform to the plain language of Government California Supreme Court held that a the duties essential to his position. The Code section 12940 and compared it to plaintiff must prove he or she can perform court rejected the special instruction and the Americans with Disabilities Act the essential duties of a position with or approved BAJI No. 12.12 on disability dis- (ADA) provision upon which it was without reasonable accommodation. crimination. To prevail under BAJI No. based. The court noted that federal case 12.12, Green had only to show that he suf- law interpreting the ADA is clear that an CASE BACKGROUND fered harm by the Department and that employee bears the burden of proving the harm was motivated by his disability. Plaintiff, Dwight D. Green, worked as that he or she meets the definition of a The jury returned a general verdict for a stationary engineer for the Department “qualified individual with a disability” in Green, awarding him $2,597,088 in total of Corrections at the California Institute damages, plus attorneys’ fees and costs. continued on page 17

4 California Labor & Employment Law Review Volume 22, No. 2 Stewart Weinberg, a 1960 graduate of Boalt Hall, is a partner in Weinberg, Public Sector Case Rogers and Rosenfeld in Oakland, a Notes union-side labor firm. Mr. Weinberg spe- cializes in the representation of unions By Stewart Weinberg and employees in the public sector.

STATE EMPLOYEES vided that except in extremely unusual, PERS CONTRIBUTIONS urgent or time limited circumstances, or Collective Bargaining Agreement Increases in Salary Payments Which where contracting out is recognized or That Limits the State’s Ability to Are Not Available to Similarly Situated required by law, federal mandate or court Contract Out Architectural and Employees May Not Be Used to decisions, the state must make every effort Engineering Services Conflicts With Calculate a Public Employee’s to hire, utilize and retain state bargaining Proposition 35 Retirement Allowance Unit 9 employees before resorting to the Consulting Eng’rs & Land Surveyors of use of private contractors. Article 24 gave Prentice v. Bd. of Admin. Cal. Pub. Cal., Inc. v. Prof’l Eng’rs in Ca. Gov’t, the union the ability to present alterna- Employees Ret. Sys., 157 Cal. App. 4th 983 42 Ca1. 4th 578 (2007) tives to contracting out. It also provided (2007) This case is another chapter in the that Unit 9 employees would have prefer- The Public Employees Retirement ongoing saga of the Professional ence over contract employees and that all System (PERS) has limitations on the Engineers in California Government’s existing personal service contracts would salary which may be considered when cal- attempt to overcome the effects of be reviewed by a joint labor management culating a public employee’s retirement Proposition 35 (Prop 35). Prop 35 was committee to determine whether or not allowance. Among other things, limita- passed by the electorate on November 7, work currently contracted out could be tions exclude from consideration pay- 2000. That initiative had both constitu- assigned to Unit 9 employees. ments which are not available to similarly tional and statutory elements. The state The supreme court reiterated the situated public employees. A local munic- constitution, article VII, established the point that it made in Kempton that the ipality increased the salary of the manag- state’s civil service system. Prop 35 provid- Legislature did not have exclusive author- er of its Water and Power Department by ed, in part, that nothing in article VII ity to establish state policy for private con- 10.49 percent during the last two years of would limit, restrict or prohibit the state tracting but that such authority was his career. The salary increase was appli- or any other governmental entities, shared with the electorate. The supreme cable to anyone who filled the position; including cities, counties and school dis- court followed its decision in Kempton, however, the salary range of the position tricts, from contracting with private enti- noting that the MOU was not and could was not altered, and thus other employees ties for the performance of architectural not amend the initiative. Article 24 of the in the same class or range of that manag- and engineering services. Prop 35 also MOU attempted to revive some of the er would not obtain that increase. provided that the state of California and restrictions on the ability of state agencies Consequently, PERS did not include the all other governmental entities shall be to enter into private services, for instance salary increase in calculating the manag- allowed to contract with qualified private by limiting private contracting to er’s retirement allowance. The manager entities for architectural and engineering “extremely unusual or urgent” circum- challenged PERS’ decision. The court of services for all public works of improve- stances. The limitations in article 24 appeal upheld PERS’ refusal to include ment. In Professional Engineers in which the parties to the MOU attempted the increase in its calculations. California Government v. Kempton to impose on private contracting “reflect California Government Code section (Kempton), 40 Ca1. 4th 1016 (2007), the the spirit and to some extent the letter of 20636 provides that compensation earn- California Supreme Court held that Prop those California Constitution Article VII- able by a member of the system means 35 removed the constitutional restriction derived statutes that we held in Kempton the pay rate and special compensation of on the ability of state agencies to contract had been impliedly repealed by the employee as defined in that section. with private firms for architectural and Proposition 35.” The supreme court That section further defines pay rate as engineering services on public works reminded the parties that Proposition 35 the “normal monthly rate of pay of the projects and impliedly repealed certain applied equally to all three branches of member paid in cash to similarly situated regulatory statutes pertaining to private government, and thus the union’s attempt members of the same group or class of contracting. The instant case involved the to circumvent Proposition 35 by arguing employment for services rendered on a collective bargaining agreement or mem- that the MOU located the authority for full-time basis during normal working orandum of understanding (MOU) the restrictions on private contracting in hours. . . .” The petitioner in this case was between Professional Engineers in the executive branch rather than the a member of the management confiden- California Government and the state of Legislature was ineffective. tial class of city employees along with California. Article 24 of that MOU pro- continued on page 19

Volume 22, No. 2 California Labor & Employment Law Review 5 Anthony J. Oncidi is a partner in and the Chair of

Employment Law the Labor and Employment Department of Case Notes Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and manage-

ment in all areas of employment and labor law. By Anthony J. Oncidi His telephone number is (310) 284-5690 and his

email address is [email protected].

San Francisco Health Care Security calculation claims. The appellate court advertising booklets and leaflets, including Ordinance Is Preempted reasoned that the trial court’s determina- the PennySaver and the California Shopper. by Federal Law tion that individual issues predominated Rather than separately reimburse outside over common ones was not supported by sales representatives for their automobile Golden Gate Rest. Ass’n v. City & County substantial evidence. Cf. Fireside Bank v. expenses, Harte-Hanks paid them higher of San Francisco, 2008 WL 90078 (9th Cir. Superior Court, 40 Cal. 4th 1069 (2007) salaries and commissions than it paid its Jan. 9, 2008) (trial court erred in ruling on the sub- inside sales representatives. Gattuso and In 2006, the San Francisco Board of stantive merits of class action while con- Ernest Sigala filed this class action lawsuit, Supervisors passed and the Mayor signed currently certifying the class). seeking indemnification under Labor into law the San Francisco Health Care Code section 2802 for the expenses they Security Ordinance which, among other Housekeeper’s Award of $70,000 For incurred in using their own automobiles things, would have required employers Unpaid Wages Is Affirmed to perform their employment duties. The with more than twenty employees to Gonzalez v. Beck, 158 Cal. App. 4th 598 trial court denied the motion to certify the make health care expenditures on behalf (2007) class and determined that the employer of their employees. The ordinance was Josepha Gonzalez worked as a care- had properly indemnified the employees scheduled to go into effect on January 1, giver and housekeeper for the Beck family. by paying them an increased amount of 2008. The district court held that the ordi- Upon the termination of her employ- base salary and commission compensa- nance is preempted by federal law, specifi- ment, she filed a claim for unpaid wages tion. The California Supreme Court cally the Employee Retirement Income with the California Labor Commissioner agreed with the lower courts’ ruling in Security Act of 1974 (ERISA), and (Commissioner). When the Becks failed part, holding that “an employer may satis- enjoined its implementation. Two weeks to answer or appear at the administrative fy its statutory business expense reim- later, the Ninth Circuit concluded that the hearing, Gonzalez obtained an award of bursement obligation under section 2802 City has a “probability, even a strong like- $70,238.54 (including interest and penal- by paying employees enhanced compensa- lihood, of success in their argument that ties) from the Commissioner upon which tion . . . provided the employer establishes the ordinance is not preempted by ERISA” judgment was subsequently entered. The some means to identify the portion of and, therefore, ordered that the district Becks’ motion to set aside the judgment overall compensation that is intended as court’s judgment be stayed pending reso- was denied by the trial court on the expense reimbursement, and provided lution of the city’s appeal on the merits. ground that they had failed to exhaust also that the amounts so identified are suf- Trial Court Erred in Failing to Certify their administrative remedies under ficient to fully reimburse the employees for Broader Wage and Hour Class Action Labor Code section 98(f), which requires all expenses actually and necessarily defendants to move to set aside the award incurred.” However, the supreme court Bell v. Super. Ct., 158 Cal. App. 4th 147 before the Commissioner prior to seeking reversed the judgment to the extent it (2007) judicial relief from a default. The court of denied class certification on the ground Four employees of H.F. Cox Inc. appeal affirmed the judgment. Cf. McCoy that the lower courts had failed properly to d/b/a Cox Petroleum Transport filed this v. Superior Court, 157 Cal. App. 4th 225 analyze whether common issues predomi- wage and hour class action challenging (2007) (claim for waiting-time penalties is nated. Cf. Solis v. The Regis Corp., 2007 WL their employer’s failure to pay overtime, subject to one-year rather than four-year 4328806 (N.D. Cal. Dec. 10, 2007) (com- its requirement of off-the-clock work, its statute of limitations). pany violated Labor Code section 212 by failure to provide meal and rest periods, paying its subsidiaries’ employees with its incorrect calculation of vacation pay, Employer Could Pay Employees checks drawn from an out-of-state bank). and its failure to pay pro rata vacation pay Increased Compensation upon termination. The trial court grant- Rather Than Reimburse Them $1.3 Million Verdict Affirmed in Favor ed plaintiffs’ motion to certify a class but Separately for Expenses Of Employee Who Was Retaliated Against only with respect to the last category of Gattuso v. Harte-Hanks Shoppers, Inc., 42 Wysinger v. Auto. Club of S. Cal., 157 Cal. claims. In response, plaintiffs filed a peti- Cal. 4th 554 (2007) App. 4th 413 (2007) tion for writ of mandate, which the court Frank Gattuso is an outside sales rep- Guy Wysinger, a former district man- of appeal granted, holding that the trial resentative for Harte-Hanks, a California ager for ACSC’s Santa Barbara office, filed court had erred in failing to certify a class corporation that prepares and distributes a complaint with the Equal Employment for the overtime pay and the vacation pay continued on page 26

6 California Labor & Employment Law Review Volume 22, No. 2 NLRA Case Notes

By Jean Shin Jean Shin is an associate at Pasadena's Rothner, Segall & Greenstone, a union- side labor law firm. She can be reached at [email protected], or (626) 796-7555.

Board Sets Aside the Election of a employees’ desires regarding union repre- Sections 8(a)(3) or (1) of the Act. The Union Due to Polling Irregularities sentation. General Counsel contended that Wang’s reprimand of Gallardo over the inventory Columbine Cable Co., Inc., 351 NLRB No. An Employer’s Provocation of mistake had been pretextual, but the 65 (Nov. 30, 2007) Employee Misconduct Will Not Excuse Board found this argument unpersuasive. A majority of a three-member panel the Misconduct if the Provocation It did not matter whether the inventory set aside a union election after the Itself Was Lawful mistake was a pretext for reprimanding employer objected to voting irregularities. Amersino Mktg. Group, LLC., 351 NLRB Gallardo because Gallardo had no right The election was held in a multi-pur- No. 58 (Nov. 19, 2007) to refuse to perform the inventory work, pose room at the employer’s facility. A three-member panel found that a and the employer thus acted within its Shortly after the polls had closed, two produce wholesaler acted lawfully in termi- rights to terminate employment. employees arrived and asked to vote. nating the employment of an individual The Board also dismissed the Although the polling period had ended, who had served as the union’s election General Counsel’s argument that Wang the ballot boxes had not yet been opened, observer on the day before the termination. had impermissibly provoked Gallardo so the parties agreed to permit the two The employee, Eliezer Gallardo, was into walking out of the office, thereby tardy employees to cast ballots. a forklift operator who also had inventory violating Board precedent that an Since the voting booth had already responsibilities. On or around April 10, employer may not provoke an employee been disassembled, the Board agent 2006, Gallardo asked Henry Wang, the into committing misconduct, and then directed the employees to enter the multi- employer’s owner and president, to be discipline the employee on the basis of purpose room one at a time to mark their relieved of his inventory duties. Wang that misconduct. Rather, the Board held ballots. The Board agent and election agreed to try to find someone else to han- that only unlawful provocation of an observers stood about fifteen feet away dle that work. employee will excuse the employee’s sub- from the employees while they voted, and The employer held a union election sequent misconduct. In this case, Wang’s were able to see their backs and arm on April 28, 2006, at which Gallardo acted insistence that Gallardo perform invento- movements. as the union’s election observer. He chal- ry duties, and reprimand for failure to do The votes were counted after polling lenged twenty-two determinative ballots. so, were not independently unlawful acts. had been closed a second time, revealing a The following day Wang called Gallardo The Board therefore found that the union victory by a seven to six majority, into his office and asked him why he had employer acted lawfully when it termi- with one void ballot. not completed some of his inventory nated Gallardo. The Board set aside the election, not- work. Gallardo responded that he had ing that it was “of vital importance” that The Assignment of New Duties to an forgotten, and Wang then swore at its elections be above reproach. It made Existing Job Classification Constitutes Gallardo, stating that he was unable to clear that the tardy employees should an Unfair Practice view Gallardo with “good eyes” after have been afforded privacy and secrecy “what had happened the day before,” The Bohemian Club, 351 NLRB No. 59 when they cast their ballots, either in a referring to Gallardo’s participation in (Nov. 19, 2007) voting booth or a private room. the election. Wang threatened to termi- A three-member panel found that an Member Walsh dissented, noting nate Gallardo’s employment if he made employer’s decision to assign additional that there was no evidence any person another mistake. duties to three employees constituted an saw, or attempted to see, how the employ- Gallardo reminded Wang of his unfair practice. ees marked their ballots, and that the promise to try to reassign the inventory The employer, a private social club, employer had not established any reason- work. Wang said that he was no longer employed cooks and stewards, who per- able doubt about the fairness or validity willing to reassign the duties, and that formed cleaning duties, in its kitchens. of the election. He agreed that the voting Gallardo would have to continue doing Though the cooks were primarily respon- conditions in this case were not ideal, but inventory. Gallardo refused and left the sible for food preparation, they also had argued that perfect laboratory conditions office. The employer subsequently termi- some light cleaning responsibilities, such were seldom attainable. In absence of any nated Gallardo’s employment. as wiping up incidental spills and clean- indication that prejudice had resulted as a The Board found that the employer’s ing their tools. result of the imperfect voting conditions, decision to terminate did not violate Member Walsh would not have frustrated continued on page 12

Volume 22, No. 2 California Labor & Employment Law Review 7 Steven H. Kruis, Esq. is a full-time ADR Case Notes mediator with Kruis Mediation, in San Diego, where he mediates employment and other disputes. By Steven H. Kruis, Esq. He can be reached at 619-702-8834, at [email protected], or through his company’s web site at www.kruismediation.com.

Employee’s Pursuit of Grievance dure, which essentially provided for arbi- dispute arising out of employment with Procedure Under CBA Does Not Bar tration, does not eliminate an employee’s the Company . . . will be settled by binding FEHA Claim right to a jury trial of important statutory arbitration.” It also provides, “As a condi- rights unless two conditions are met. tion of employment, all employees are Ortega v. Contra Costa Cmty. Coll. Dist., First, the CBA must make the waiver of a required to sign an arbitration agreement,” 156 Cal. App. 4th 1073 (2007) jury trial “clear and unmistakable.” and “employees will be provided a copy of Jose Ortega was demoted from his Second, the arbitration procedures must their signed arbitration agreement.” In position as head football coach at Contra “allow for the full litigation and fair adju- support of the petition, Arnel produced Costa Community College, and then ulti- dication of the FEHA claim.” Here, the copies of its handbook and signed mately terminated. He filed grievances CBA did not contain a clear waiver of acknowledgments that both plaintiffs following each adverse action under the Ortega’s right to proceed in the judicial received it, but did not produce any arbi- grievance procedure set forth in the col- forum. Indeed, it never even mentioned tration agreements signed by plaintiffs,

“A proponent of arbitration has the burden of establishing, by a preponderance of the evidence, the existence of a valid arbitration agreement as a statutory prerequisite to compelling arbitration.”

the term “arbitration.” Moreover, the who denied such agreements existed. The lective bargaining agreement (CBA) record was unclear as to whether the fact- trial court denied the petition. between United Faculty, the union repre- finding process under the CBA was suffi- The appellate court affirmed. A pro- senting Ortega, and the Contra Costa cient. Therefore, Ortega’s utilization of ponent of arbitration has the burden of Community College District. Because the grievance procedure did not bar him establishing, by a preponderance of the evi- both grievance procedures were denied, from asserting his FEHA claims, and the dence, the existence of a valid arbitration Ortega filed two complaints against the trial court erred in dismissing his actions. agreement as a statutory prerequisite to district under the Fair Employment and compelling arbitration. Arnel’s documents Housing Act (FEHA) challenging the Although Company Handbook Says do not establish that plaintiffs consented to demotion and termination, and received All Employees Must Sign Arbitration arbitration. The handbook specifically two right-to-sue letters from the Agreement, Employer Cannot states that employees will be required to Department of Fair Employment and Compel Arbitration Without Producing sign an arbitration agreement as a condi- Housing. He then filed two separate law- Actual Arbitration Agreement Signed tion of employment, which completely suits against the district for race discrimi- by Plaintiff-Employees undermines any argument that the hand- nation, intentional infliction of Mitri v. Arnel Mgmt. Co., 157 Cal. App. book itself was intended to constitute the emotional distress, and negligent super- 4th 1164 (2007) “arbitration agreement.” Because Arnel vision. The trial court sustained the dis- Amanda Mitri and Eric Eppel were failed to produce the separate arbitration trict’s demurrers without leave to amend, formerly employed by Arnel Management agreements referred to in its handbook, it and dismissed both actions because Company. They brought suit alleging has not met its burden of proving that valid Ortega failed to exhaust his administra- sexual discrimination and harassment. arbitration agreements existed with plain- tive remedies under the CBA. Arnel filed a petition to compel arbi- tiffs. Therefore, its petition to compel arbi- The appellate court reversed and tration based upon a purported agreement tration was properly denied. remanded. The CBA grievance proce- to arbitrate. Arnel’s handbook states, “Any

8 California Labor & Employment Law Review Volume 22, No. 2 Prof. Donna Ryu (left) serves on the clinical faculty of the University of Wage and California, Hastings College of the Law. Sarah Beard (middle) is an associate with Siegel and LeWitter, a plaintiff’s Hour Update labor and employment firm in Oakland. Matthew Goldberg (right) is a Staff Attorney at the Legal Aid Society - By Donna Ryu, Sarah Beard, Employment Law Center, where he and Matthew Goldberg directs the Wage Claims Project.

Pharmaceutical Representative Court Certifies Class of Drivers for The appellate court ordered the trial Satisfies Outside Sales Exemption Overtime Claim court to certify the overtime class, con- cluding that a class action is a superior Barnick v. Wyeth, 522 F. Supp. 2d 1257 Bell v. Super. Ct. (H.F. Cox, Inc.), 158 method to adjudicate the motor carrier (2007) Cal.App.4th 147 (2007) exemption for Cox’s drivers. The dispute Plaintiff, a pharmaceutical represen- Plaintiffs, drivers for a petroleum centers on those drivers who are not con- tative, called upon physicians to discuss transportation company, brought a class sidered exempt solely on the basis of prescription medications and promote action suit against their employer, alleg- routes they actually drove across state particular vaccines. He was required to ing failure to pay overtime, failure to pro- lines. Given that the evidence indicated make a certain number of visits, as well as vide meal and rest breaks, and other wage that any driver could be assigned to any meet a daily phone call quota. His essen- and hour violations. Plaintiffs filed a route, the claims of any one driver could tial function was to “effect sales by edu- motion for class certification, which was only be resolved by considering the evi- cating and guiding health care granted only with respect to a claim for dence regarding all possible routes the professionals in their purchase and pre- failure to pay vacation pay upon termina- driver reasonably could have been scription of [defendant’s] products.” In tion of employment. Plaintiffs filed a assigned. Since every driver could have addition to an annual salary, plaintiff petition for writ of mandate, and the been assigned any of Cox’s California received compensation tied to the sales of Second District Court of Appeal granted routes, the claim of each driver implicat- products he assisted in generating. the petition, and directed the trial court ed all of the California routes. Denial of Plaintiff filed suit for violations of the to vacate its order and enter a new order class certification would require hun- California Labor Code, including claims granting certification of a class with dreds of individual trials, each of which for unpaid overtime and meal and rest respect to the overtime pay and vacation would consider the entirety of routes period premiums. Wyeth defended on the pay claims. driven in California. There was no evi- ground that plaintiff was subject to the With respect to the overtime claim, it dence to support the trial court’s conclu- outside sales exemption. was undisputed that plaintiffs regularly sion that individual issues predominated. Judge Wilson of the federal district worked over eight hours per day and over The court affirmed the trial court’s court for the Central District of forty hours per week. Defendant Cox con- denial of class certification with respect to California granted summary judgment tended that its drivers were engaged in the remaining claims. On the meal and with respect to all claims, finding that interstate commerce, and thus exempt rest period claims, the court found that plaintiff fell within the exemption. from California overtime requirements common issues did not predominate, Plaintiff argued that he did not make under the “motor carrier exemption.” given that there was substantial evidence direct sales, because the company’s prod- Under the Department of Transportation’s that there was no uniform policy or prac- ucts had to be purchased by patients “four month rule,” if a person drives in tice forbidding or preventing breaks. through pharmacies. The court noted interstate commerce once every four Finally, the court rejected the trial although physicians do not actually pur- months, that person is continuously sub- court’s finding that the class action chase the prescription products, they ject to federal regulations, and thus process was not a superior means of control the product’s ultimate purchase. exempt from California overtime require- resolving the dispute. The trial court The court also rejected plaintiff’s argu- ments. Plaintiffs argued that the exemp- found that drivers would be likely to pur- ment that he was engaged in promotion, tion did not apply to them, as they never sue individual claims as their overtime rather than sales, finding the distinction drove across state lines or carried cargo claims averaged $10,000 per year. The unpersuasive in plaintiff’s circumstances. destined for another state. Cox argued that trial court also recognized that drivers Such a distinction could more logically be as it assigns trips “indiscriminately” had the option of filing a claim with the applied in situations where an employee’s among its drivers, all of its drivers, even Labor Commissioner. Citing the efforts are directed at persuading a more those who never crossed state lines, are California Supreme Court’s recent deci- general audience to purchase a product, subject to the federal regulations and sion in Gentry v. Superior Court, 42 Ca1. rather than individuals. exempt from overtime requirements. 4th 443 (2007), the court noted that

continued on page 29

Volume 22, No. 2 California Labor & Employment Law Review 9 Cases Pending Before the California Supreme Court Phyllis W. Cheng is the Director of the Department of Fair Employment By Phyllis W. Cheng and Housing.

ATTORNEYS’ FEES to equitable tolling while the employee C048799. Petition for review after rever- pursues an internal administrative reme- sal, modification and affirmance in part Vasquez v. State of Cal., 154 Cal. App. 4th dy, such as a complaint with the commu- of judgment. (1) In an action for employ- 406 (2007), review granted, November 11, nity college chancellor filed pursuant to ment discrimination and harassment by 2007. S156793/D048371. Petition for Cal. Code Regs. tit. 5, § 59300 et seq.? hostile work environment, does Reno v. review after order affirming award of Reply brief due. Baird, 18 Cal. 4th 640 (1998) require that attorneys’ fees. Review granted/briefing the claim for harassment be established deferred pending consideration and dis- GOVERNMENT EMPLOYMENT entirely by reference to a supervisor’s acts position of a related issue in Vasquez v. Mays v. City of Los Angeles, 145 Cal. App. that have no connection with matters of State of Cal., S143710 (see Cal. Rules of 4th 932 (2006), review granted, 2007 Cal. business and personnel management, or Court, rule 8.512(d)(2)), or pending fur- LEXIS 2049 (2007). S149455/B188527. may such management-related acts be ther order of the court. The related issue Petition for review granted after reversal considered as part of the totality of the is: Does the rule that, in order to receive of denial of writ of mandate. Does the circumstances allegedly creating a hostile attorney fees under Cal. Code Civ. Proc. § Public Safety Officers’ Procedural Bill of work environment? (2) May an appellate 1021.5, the plaintiff must first reasonably Rights Act (Cal. Gov’t Code § 3300 et court determine the maximum constitu- attempt to settle the matter short of liti- seq.) require that an officer facing disci- tionally permissible award of punitive gation, apply to this case? (See Graham v. pline be provided with notice of both the damages when it has reduced the accom- DaimlerChrysler Corp., 34 Cal. 4th 553, alleged offense of which he or she is panying award of compensatory dam- 557 (2004); Grimsley v. Bd. of Supervisors, accused and the potential punishment ages, or should the court remand for a 169 Cal. App. 3d 960, 966–967 (1985).) within one year of discovery of the new determination of punitive damages CLASS ACTION alleged misconduct? Fully briefed. in light of the reduced award of compen- satory damages? Answer brief due. Arias v. Super. Ct., 153 Cal. App. 4th 777 Miklosky v. U.C. Regents, decision without (2007), review granted, 2007 Cal. LEXIS LEAVES published opinion (2005), review granted, 10879 (2007). S155965/C054185. Petition 2006 Cal. LEXIS 6 (2006). S139133/ Lonicki v. Sutter Health Central, 124 Cal. for review after issuance of peremptory A107711. Petition for review after affir- App. 4th 1139 (2004), review granted, writ of mandate. (1) Must an employee mance sustaining demurrer. Does the 2005 Cal. LEXIS 2778 (2005). who is suing an employer for labor law requirement of the Whistleblower S130839/C039617. Petition for review violations on behalf of himself and others Protection Act (Cal. Gov’t Code §§ 8547– after affirmance of judgment. (1) Under under the Unfair Competition Law (Cal. 8547.12) that an employee of the the provisions of the Moore-Brown- Bus. & Prof. Code § 17203) bring his rep- University of California have “filed a Roberti Family Rights Act (Cal. Gov’t resentative claims as a class action? (2) complaint with the [designated] universi- Code § 12945.2) that grant an employee Must an employee who is pursuing such ty officer” and that the university have the right to a leave of absence when the claims under the Private Attorneys “failed to reach a decision regarding that employee has a serious health condition General Act (Cal. Lab. Code § 2699) bring complaint within [specified] time limits” that makes the employee “unable to per- them as a class action? Answer brief due. before an action for damages can be form the functions of the position of that EMPLOYMENT DISCRIMINATION brought (Cal. Gov’t Code § 8547.10(c)) employee,” is an employee entitled to a merely require the exhaustion of the leave of absence where the employee’s McDonald v. Antelope Valley Cmty. Coll. internal remedy as a condition of bring- serious health condition prevents him or Dist., 151 Cal. App. 4th 961 (2007), review ing the action, or does it bar an action for her from working for a specific employer, granted, 2007 Cal. LEXIS 8911 (2007). damages if the university timely renders but the employee is able to perform a S153964/B188077. Petition for review any decision on the complaint? Fully similar job for a different employer? (2) after part affirmance and part reversal of briefed. Did defendant’s failure to invoke the summary judgment. In an employment statutory procedure for contesting the discrimination action, is the one-year HARASSMENT AND DAMAGES medical certificate presented by plaintiff statute of limitations for filing an admin- Roby v. McKesson HBOC, 146 Cal. App. preclude it from later contesting the istrative complaint with the Department 4th 63 (2006), review granted, 2007 Cal. validity of that certificate? Case argued on of Fair Employment and Housing set LEXIS 4012 (2007). S149752/C047617, January 8, 2008. forth in Cal. Gov’t Code § 12960 subject

10 California Labor & Employment Law Review Volume 22, No. 2 NONCOMPETE AGREEMENTS (2007). S152934/A107803. Petition for 7054 permit a school district to prohibit review after part affirmance and part the teachers union from using the Edwards v. Arthur Andersen, LLP, 142 Cal. reversal of grant of summary judgment. school’s mailboxes to distribute a union App. 4th 603 (2006), review granted, 2006 (1) Does article I, section 31 of the newsletter to its members, if the newslet- Cal. LEXIS 14181 (2006). S147190/ California Constitution, which prohibits ter includes endorsements for school B178246. Petition for review after affir- government entities from discrimination board candidates? (2) Does the guarantee mance sustaining demurrer. (1) Is a non- or preference on the basis of race, sex, or of liberty of speech in Cal. Const., art. I, § competition agreement between an color in public contracting, improperly 2, assure that an employee organization employer and an employee that prohibits disadvantage minority groups and violate may distribute its message to its members the employee from performing services equal protection principles by making it concerning electoral politics via school for former clients invalid under Cal. Bus. more difficult to enact legislation on their mailboxes? Review granted/brief due. & Prof. Code § 6600, unless it falls within behalf? (See Wash. v. Seattle Sch. Dist. No. the statutorily- or judicially-created trade RETALIATION 1, 458 U.S. 457 (1982); Hunter v. Erickson, secrets exceptions to the statute? (2) Does 393 U.S. 385 (1969).) (2) Is section 31 Jones v. Lodge at Torrey Pines P’ship, 147 a contract provision releasing “any and preempted by the International Cal. App. 4th 475 (2007), review granted, all” claims the employee might have Convention on the Elimination of Racial 61 Cal. Rptr. 3d 1 (2007). S151022/ against the employer encompass non- Discrimination? (3) Does an ordinance D046600. Petition for review after rever- waivable statutory protections, such as that provides certain advantages to sal of judgment notwithstanding the ver- the employee indemnity protection of minority- and female-owned business dict and an order granting a new trial in a Cal. Lab. Code § 2802? Fully briefed. enterprises with respect to the award of civil action. May an individual be held PENSION city contracts fall within an exception to personally liable for retaliation under the section 31 for actions required of a local California Fair Employment and Lexin v. Super. Ct. (People), 154 Cal. App. governmental entity to maintain eligibili- Housing Act (Cal. Gov’t Code § 12900 et 4th 1425 (2007), review granted, ty for federal funds? Reply brief due. seq.)? Submitted/opinion due. November 28, 2007. S157341/D049251. Petition for review after denial of petition REPRESENTATIVE CLAIMS TERMINATION AND SUSPENSION for writ of prohibition. Did petitioners’ Amalgamated Transit Union., Local 1756, Ross v. Ragingwire Telecomms., Inc., 132 service on the Board of the San Diego AFL-CIO v. Super. Ct. (First Transit, Inc.), Cal. App. 4th 590 (2005), review granted, Retirement System, as it related to an 148 Cal. App. 4th 39 (2006), review grant- 2005 Cal. LEXIS 13284 (2005). S138130/ increase in pension benefits for members ed, 2007 Cal. LEXIS 6526 (2007). C043392. Petition for review after affir- of the system, violate the conflict of inter- S151615/B191879. Petition for review mance of judgment. When a person who est provisions of Cal. Gov’t Code § 1090, after denial of peremptory writ of man- is authorized to use marijuana for medical and subject them to criminal prosecu- date. (1) Does a worker’s assignment to purposes under the California tion, or did the non-interest exemption of the worker’s union of a cause of action Compassionate Use Act (Cal. Health & Cal. Gov’t Code § 1091.5(a)(9) apply? for meal and rest period violations carry Safety Code § 11362.5) is discharged from Review granted/counsel needed. with it the worker’s right to sue in a repre- employment on the basis of his or her off- PRIVACY sentative capacity under the Labor Code duty use of marijuana, does the employee Private Attorneys General Act of 2004 have either a claim under the Fair Hernandez v. Hillsides, Inc., 142 Cal. App. (Cal. Lab. Code § 2698 et seq.) or the Employment and Housing Act (Cal. Gov’t 4th 1377 (2006), review granted, 53 Cal. Unfair Competition Law (Cal. Bus. & Code § 12900 et seq.) for unlawful dis- Rptr. 3d 801 (2007). S147552/B183713. Prof. Code § 17200 et seq.)? (2) Does Cal. crimination in employment on the basis Petition for review after reversal and Bus. & Prof. Code § 17203, as amended by of disability or a common law tort claim remand on grant of summary judgment. Proposition 64, which provides that rep- for wrongful termination in violation of May employees assert a cause of action resentative claims may be brought only if public policy? Submitted/opinion due. for invasion of privacy when their the injured claimant “complies with employer installed a hidden surveillance Section 382 of the Code of Civil Spielbauer v. County of Santa Clara, 146 camera in the office to investigate Procedure,” require that private represen- Cal. App. 4th 914 (2007), review granted, whether someone was using an office tative claims meet the procedural require- 59 Cal. Rptr. 3d 437 (2007). S150402/ computer for improper purposes, only ments applicable to class action lawsuits? H029345. Petition for review after rever- operated the camera after normal work- Application to file amicus brief pending. sal of denial of writ of mandate. If a pub- ing hours, and did not actually capture lic employee exercises his or her Fifth any video of the employees who worked San Leandro Teachers Ass’n v. Governing Amendment right against self-incrimina- in the office? Permission to file amicus Bd. of the San Leandro Unified Sch. Dist., tion in a public employer’s investigation brief granted. 154 Cal. App. 4th 866 (2007), review of the employee’s conduct, must the pub- PROPOSITION 209 granted, 2007 Cal. LEXIS 13320 (2007). lic employer offer immunity from prose- S156961/A114679, A115686. Petition for cution before it can dismiss the employee Coral Constr., Inc. v. City & County of San review after reversal of trial court order for refusing to answer questions asked in Francisco, 149 Cal. App. 4th 1218 (2007), granting petition for peremptory writ of connection with the investigation? Fully review granted, 2007 Cal. LEXIS 8911 mandate. (1) Does Cal. Educ. Code § briefed.

Volume 22, No. 2 California Labor & Employment Law Review 11 WAGE AND HOUR istrative exemption (Cal. Code Regs. tit. 8, § 11040) to the requirement that employees Martinez v. Combs, decision without pub- are entitled to overtime compensation? NLRA Case Notes lished opinion (2003), review granted, Review granted/brief due. continued from page 7 2004 Cal. LEXIS 1914 (2004). S121552/B161773. Petition for review WHISTLEBLOWER PROTECTION ACT after partial reversal and partial affir- State Bd. of Chiropractic Exam’rs v. Super. In September 2005 the employer mance of summary judgment. Briefing Ct. (Arbuckle), 148 Cal. App. 4th 142 transferred three cooks, one of whom originally deferred pending decision in (2007), review granted, 2007 Cal. LEXIS was a union steward, into a new kitchen. Reynolds v. Bement, 36 Cal. 4th 1075 6811(2007). S151705/C052554. Petition The supervisor of the new kitchen (2005), which included the following for review after grant of petition for instructed the cooks to wipe down the issue: Can the officers and directors of a peremptory writ of mandate. Whether, walls, counters, refrigerator doors and corporate employer personally be held under the Whistleblower Protection Act grills, and to sweep underneath floor civilly liable for causing the corporation (Cal. Gov’t Code § 8547 et seq.), a state mats. These tasks took approximately to violate the statutory duty to pay mini- employee may bring a civil action after thirty minutes. mum and overtime minimum wages, suffering an adverse decision by the State The employer informed the union of either on the ground such officers and Personnel Board without successfully the new duties approximately one week directors fall within the definition of seeking a writ of administrative mandate later, and the union filed an unfair labor “employer” in Industrial Welfare to set aside that decision. Reply brief due. practice charge contending that the addi- Commission Wage Order 9 or on another tional assignments constituted a unilater- basis? Fully briefed. Ramirez v. Dep’t of Health Servs., decision al change without an opportunity to without published opinion, review grant- bargain. Harris v. Super. Ct. (Liberty Mut. Ins.), 154 ed, 2007 Cal. LEXIS 6811 (2007). Reversing the administrative law Cal. App. 4th 164 (2007), review granted S152195/C050718. Petition for review judge, the Board held that the employer 2007 Cal. LEXIS 13321 (2007). after affirmance of judgment. Briefing had violated Sections 8(a)(5) and (1) of S156555/B195121 (lead), B195370. Petition deferred pending decision in State Bd. of the Act. It determined that the additional for review after grant of petition for writ of Chiropractic Exam’rs v. Super. Ct., supra. duties constituted a material change in mandate. Do claims adjusters employed by Holding for lead case. the cooks’ work assignments, which trig- insurance companies fall within the admin- gered an obligation to bargain. The employer argued that the union had waived its right to bargain because it did not request bargaining over the new assignments before filing the charge. The Board disagreed, noting that the union first learned of the change one full week after the employer had already imple- mented it. At that point, any request to bargain would have been futile. Nor did it make a difference that one of the cooks was the union steward because, even if his knowledge of the change had been imputed to the union, he first learned about the change in duties when his supervisor assigned new tasks to him. By this time, the change was a fait accompli.

12 California Labor & Employment Law Review Volume 22, No. 2 BOYCOTT ADVOCACY IN SHOPPING the United States Court of Appeals for the MALLS: THE FASHION VALLEY MALL CASE District of Columbia Circuit sought guid- NLRB Guidance ance from California’s highest court on the continued from page 3 Just eight days after the Board issued question of whether a shopping center its decision in Guard Publishing, the could lawfully ban from its premises California Supreme Court, in Fashion speech urging the public to boycott a ten- ature during non-working time, in non- Valley Mall LLC v. NLRB,21 reached a ant.28 A bare majority of California’s work areas. The Board stated that very different conclusion on the issue of Supreme Court justices answered no.29 “[b]eing rightfully on [an employer’s] freedom of speech on private property. Writing for that majority, Justice Carlos premises confers no additional right on By a narrow 4–3 majority, California’s Moreno reiterated that private shopping employees to use the employer’s equip- highest court ruled that the California malls were public forums and stated that, ment for Section 7 purposes regardless of Constitution protects the right to urge although content-neutral time/place/man- whether the employees are authorized to customers in a privately owned shopping ner restrictions on speech are lawful, the use that equipment for work purposes.”17 mall to boycott one of the stores in that Mall’s restriction went too far. The rule Dissenting “in the strongest possible mall. By re-affirming and even extending effectively sought to prohibit an entire cat- terms,” Members Liebman and Walsh its 1979 decision in Robins v. Pruneyard egory of speech—boycott advocacy—sim- stated, “Only a Board that has been asleep Shopping Center,22 in which privately- ply because the Mall disagreed with the for the past 20 years could fail to recog- owned shopping malls became public viewpoint of that speech and worried about nize that e-mail has revolutionized com- forums deserving of free speech protec- the effect it would have on listeners.30 munication both within and outside the tions, the California Supreme Court fur- Justice Moreno applied strict scrutiny to workplace.”18 The dissenting members ther separated California from other analyze the Mall’s rule, finding that “the would not have applied a property-rights states in this area of constitutional law. In Mall’s purpose to maximize the profits of analysis to e-mail systems; rather, because dissent, Justice Ming W. Chin noted that its merchants is not compelling compared e-mail is a modern substitute for face-to- no other state has taken its free speech to the union’s right to free expression.”31 face communications, they would have jurisprudence this far.23 In a forceful dissent, Justice Chin analyzed Guard Publishing’s policy under Toward the end of 1998, the Graphic repeatedly called for the court to “join the the rubric of Republic Aviation’s balanc- Communications International Union judicial mainstream,” overrule its almost ing test.19 The dissenters also took issue Local 432-M filed an unfair labor practice thirty-year-old Pruneyard decision, and with the majority’s focus on what types of charge with the Board alleging that the return private shopping malls to private activities were “equal” to Section 7 activi- owners of San Diego’s Fashion Valley Mall property status.32 Justice Chin also criti- ties, arguing that the essence of the viola- (Mall) had “refused to permit employees cized his colleagues for finding that “the tion was not “discrimination” but the of the Union-Tribune Publishing right of persons to use property they do “interference with Section 7 rights.”20 Company to leaflet in front of [the] not own is more compelling than the Guard Publishing provides employers Robinsons-May” department store, in landowner’s right to use its own property 24 reassurance that they can adopt and violation of Section 8(a)(1) of the Act. for the very purpose it exists.”33 According enforce rules to protect their electronic Thirty to forty union members had dis- to Justice Chin, the strict scrutiny test property, as long as those rules do not tributed leaflets to customers entering and applicable to the government has no discriminate on the basis of union mem- leaving the department store, an advertis- application to private property owners, bership or activity. It is also important to er in the Union-Tribune, asking them to and it is wrong to force a private property note that the Board limited its ruling to call the newspaper’s chief executive officer owner to allow an activity that contra- those situations in which face-to-face regarding the newspaper’s alleged unfair venes the property’s purpose.34 25 interaction among employees was possi- treatment of its employees. Mall officials In the wake of Pruneyard, many ble. Where such interaction is limited or had quickly responded to the scene, noti- malls and other shopping centers had altogether impossible (for example, fying union members that they were tres- instituted increasingly restrictive rules as where web-based companies or compa- passing because they had not obtained an a way to curb protester antics. Now, with 26 nies with a telecommuting workforce are “expressive activity” permit. In order to the Fashion Valley Mall decision, these involved), the Board could find that have obtained such a permit, union mem- rules will likely require careful reexami- restrictive e-mail policies unduly inter- bers would have had to agree to abide by nation. Fashion Valley Mall will undoubt- fere with an employee’s right to engage in controversial Mall Rule 5.6, which prohib- edly pose new challenges for California Section 7 communications. The debate ited “impeding, competing or interfering lawyers representing property owners, over the issues raised in Guard Publishing with the business of one or more of the business owners, employers and unions, will likely continue for some time, as the stores or merchants in the shopping cen- as they confront the complex, emotional union appealed the Board’s decision to ter by . . . [u]rging, or encouraging in any issues surrounding businesses’ desire to the United States Court of Appeals for the manner, customers not to purchase the insulate customers from labor disputes District of Columbia Circuit on January merchandise or services offered by any and retain customer loyalty on the one 9, 2008. one or more of the stores or merchants in hand and the right recognized in this 27 the shopping center.” decision for a union or other group to After an administrative law judge and reach out to an increasingly wide audi- the Board both found in the union’s favor, ence on the other.

Volume 22, No. 2 California Labor & Employment Law Review 13 SUBCONTRACTOR EMPLOYEES the restaurants, as well as to NYNY cus- ship between Ark and NYNY?45 Does it HANDBILLING ON OWNER’S PROPERTY: tomers as they passed by the entrances to matter that Ark employees were commu- THE NEW YORK NEW YORK CASE the Ark-operated restaurants. The hand- nicating with NYNY (and possibly Ark) bills were very similar to those distributed guests and customers, and not other Ark The Board will soon have another the previous summer, but did not employees?46 Has NYNY completely opportunity to speak to the issue of how expressly disclaim a labor dispute with waived its property rights by voluntarily much control a private property owner NYNY. Once again, NYNY personnel told bringing Ark onto its property to operate has over its property, when it decides a the Ark employees that they were tres- a business in interstate commerce?47 Does case involving the “New York New York” passing on private property and escorted it matter that Ark had a leasehold with Las Vegas hotel and casino (NYNY) and a them from the complex. NYNY;48 what if Ark were simply a single union that was seeking to organize Initially, the two incidents were sepa- concessionaire? The answers to these restaurant workers employed by the Ark rated into two different cases before the questions will have a profound effect Las Vegas Restaurant Corporation (Ark), Board. With respect to the July 1997 inci- both on the status of access rights to pri- which subcontracts with NYNY to oper- dent (NYNY I), the administrative law vate property and the labor relations ate several restaurants and fast-food out- judge (ALJ) found that NYNY had violat- strategies for both employers and unions. lets inside the NYNY complex via a ed the Act by removing Ark employees 35 leasehold. At the end of 2007, the Board from NYNY property, as the employees heard oral argument on the issue of enjoyed a Republic Aviation right of access ENDNOTES whether NYNY violated the Act by deny- to non-work areas to conduct hand- 1. The authors wish to thank Grissel ing off-duty Ark employees access to billing.38 The Board agreed, stating that Seijo for her contributions. This arti- NYNY property to distribute union liter- “employees of a subcontractor of a prop- cle reflects solely the views of the ature to the public. With three vacancies erty owner who work regularly and exclu- authors. on the Board (only Members Liebman sively on the owner’s property are 36 2. Members Peter C. Schaumber and and Schaumber remain), a decision may rightfully on that property pursuant to Peter N. Kirsanow joined then- not be forthcoming for some time, but the employment relationship, even when Chairman Robert J. Battista for the without question, the Board will again off duty.”39 With respect to the April 1998 majority view. have to address the applicability of the incident (NYNY II), the ALJ likewise 3. The Guard Publ’g Co., 351 NLRB No. Republic Aviation balancing test previous- found that NYNY had violated the Act by 70, slip op. at 1 (Dec. 16, 2007). ly discussed in Guard Publishing. prohibiting the Ark employees from dis- 4. Id. at 2–3. In July 1997, three off-duty Ark tributing handbills outside Ark-operated 5. Id. at 2. employees came onto NYNY’s property restaurants.40 The Board again concurred, 6. Id. at 3. and stood on a sidewalk in an area located stating that the off-duty Ark employees 7. Id. just outside the main entrance to the casi- were not trespassing but were lawfully on 8. Id. at 2. no, also known as the “porte-cochere” NYNY premises pursuant to their 37 9. Id. at 10–11. area. These Ark employees distributed employment relationship with Ark.41 The 10. Id. at 8. handbills to casino customers, which dis- U.S. Court of Appeals for the District of 11. Id. at 9. claimed any labor dispute with NYNY, Columbia Circuit consolidated NYNY I 12. Id. at 10. but described as “unfair” the fact that Ark and NYNY II for briefing and argument, 13. Id. employees were not working under a and then remanded to the Board—find- 14. 324 U.S. 793 (1945). union contract. The leaflets contained a ing, among other things, that the Board 15. The Guard Publ’g Co., 351 NLRB No. chart purporting to illustrate the differ- had “provided no rationale to explain 70, slip op. at 8. ence between the wages and benefits of why, in areas within the NYNY complex 16. Id. at 6. Ark employees and those of other union- but outside of Ark’s leasehold, Ark’s 17. Id. at 7. ized employees working along the Las employees should enjoy the same 18. Id. at 12 (Liebman and Walsh, Vegas Strip, and urged customers to con- [Section] 7 rights as NYNY’s employ- Members, dissenting). tact Ark managers about negotiating a ees.”42 19. Id. at 16–17. fair union contract with employees. An At oral argument, the Board focused 20. Id. at 20. NYNY representative told the Ark on many of the questions posed by the 21. Case No. S144753, 2007 Cal. LEXIS employees that they were trespassing on District of Columbia Circuit in order to 14427 (Dec. 24, 2007). private property and escorted them off of refine its previous analysis, which includ- 22. 447 U.S. 74 (1980). NYNY property after they refused to ed: Does the fact that Ark employees 23. Fashion Valley Mall, 2007 Cal. LEXIS leave. work on NYNY premises give them 14427, at *50-*54. In April 1998, four off-duty Ark Republic Aviation rights throughout all of 24. Id. at *2. employees entered the NYNY premises NYNY’s non-work areas?43 Or, are Ark 25. Id. at *3-*4. and stood outside of the entrances to two employees some sort of invitee, with 26. Id. at *4. restaurants operated by Ark for NYNY. rights inferior to NYNY employees?44 Are 27. Id. at *5. The Ark employees distributed handbills Ark employees trespassers on NYNY 28. Id. at *8. to customers as they entered and exited property, despite the contractual relation- 29. Id. at *2.

14 California Labor & Employment Law Review Volume 22, No. 2 30. Id. at *30-*31. 31. Id. at *39. 32. Id. at *41-*42, *69 (Chin, J., dissent- The Labor & Employment Law ing). 33. Id. at *68 (Chin, J., dissenting). Review is published by the Labor 34. Id. at *42, *67 (Chin, J., dissenting). 35. Case Nos. 28-CA-14519 and 28-CA- and Employment Law Section of 15148. 36. Chairman Robert J. Battista’s term ended on December 16, 2007. the State Bar of California Member Dennis P. Walsh served a recess appointment that expired with Congress’s final adjournment for 2007. Although Member Walsh was appointed to a term through 2009, the Senate did not act on his Co-Editors-in-Chief appointment prior to adjournment, and his seat is now vacant. Member Lois M. Kosch and Emily Prescott Peter N. Kirsanow also served a recess appointment that expired with Associate Editor Congress’s final adjournment for Rene Judkiewicz 2007. Member Kirsanow was appointed to a term expiring in 2008, but again, the Senate did not act on this appointment before its end-of- year adjournment. Member Editorial Board Kirsanow’s seat is now vacant. On Bruce Barsook December 28, 2007, the Board issued Julia Lapis Blakeslee a press release announcing that it Phyllis W. Cheng had delegated its powers such that Karen Clopton the two-member quorum of Barbara A. Cotter Members Liebman and Schaumber John Cumming could issue decisions on the Board’s Dorothy Bacskai Egel behalf in unfair labor practice and Anthony Oncidi representation cases. The press release Tyler M. Paetkau stated that the Board will revoke this Patti Roberts delegation once membership returns Mary Topliff to at least three members. Katherine Thomson 37. Facts taken from the briefs filed by Timothy G. Yeung the parties and amici in this case. 38. 334 NLRB No. 87, slip op. at 9. 39. Id. at 1. 40. 334 NLRB No. 89, slip op. at 8. 41. Id. at 2. 42. New York New York, LLC v. NLRB, 313 F.3d 585, 588 (D.C. Cir. 2002). 43. Transcript of Oral Argument, New York New York Hotel & Casino, Case 28-CA-14519 (Nov. 9, 2007). Design & Production 44. Id. at 34–48. Kristi Paulson, Documation LLC 45. Id. at 37. 46. Id. at 19–22. 47. Id. at 24, 35. 48. Id. at 25–28.

www.calbar.ca.gov/laborlaw

Volume 22, No. 2 California Labor & Employment Law Review 15 16 California Labor & Employment Law Review Volume 22, No. 2 ination.8 Quoting from a legislative analy- proof of ability to perform must be part Green v. State sis of the Legislature’s amendment of the of the plaintiff’s case,” Justice Werdegar FEHA to require that an employee be able wrote.13 The reasoning is wrong, accord- of California to perform the essential duties, the court ing to Justice Werdegar, because proof of continued from page 4 observed that “the Legislature’s ‘confor- an exception typically is a defendant’s mity [to the ADA rules] will benefit burden and should be so in discrimina- employers and businesses because they tion actions. Ruling to the contrary, she order to establish a violation of the ADA will have one set of standards with which noted, creates a rule never intended by and that a “qualified individual” can per- they must comply in order to be certain the Legislature—that individuals with form the essential job duties with or that they do not violate the rights of indi- disabilities are presumed unable to work without a reasonable accommodation. viduals with physical or mental disabili- until they prove otherwise. The court examined numerous federal ties.’ ”9 The court then reasoned that the The distinction between the two cases analyzing the ADA and its predeces- Legislature incorporated the ADA opinions is made clearer when Justice sor, the Rehabilitation Act of 1973, before requirement with full knowledge of the Werdegar compares disability discrimi- concluding that the qualification element purpose the “ability to perform” language nation to gender discrimination, explain- was established and maintained because serves in the ADA and that the Legislature ing that evidence that an act was under federal law, it is not unlawful to intended it to serve the same purpose in motivated by an employee’s gender is draw distinctions on the basis of a dis- the FEHA—“as a means of distinguishing direct evidence of discrimination which ability if that disability renders an permissible employment practices from does not require a plaintiff to also employee unqualified to perform the impermissible disability discrimination demonstrate that he or she was qualified essential duties even with reasonable based on the employee’s ability to per- for the position.14 Similarly, she asserts, accommodation. form in the particular employment posi- evidence that an act was motivated by an In comparison to the ADA, the tion with reasonable accommodation.”10 employee’s inability to work due to a dis- FEHA provision does not include lan- Based on the similarity in language ability is direct evidence of disability dis- guage specifying that a plaintiff be a and purpose of the FEHA to the ADA, the crimination. In such cases, according to “qualified individual.” However, like the supreme court found no reason to con- the dissent, qualification is an excuse ADA, the FEHA does make clear that strue the burden of proof differently. It posited by the defense, not part of the drawing distinctions on the basis of phys- held that “in order to establish that a plaintiff’s case.15 ical or mental disability is not prohibited defendant employer has discriminated on The dissent arguably misinterprets discrimination in itself as with other pro- the basis of disability in violation of the the majority’s logic, however, as the tected classes. The court succinctly deci- FEHA, the plaintiff employee bears the majority reads section 12940(a)(1) not as phered the manner in which the FEHA burden of proving he or she was able to “relieving an employer from liability” mirrored the ADA, not in language, but do the job, with or without reasonable where an employee cannot perform, but in intent. It looked to the plain language accommodation,”11 tacitly repudiating the as precluding the imposition of liability of the proviso which expressly provides position of the court of appeal and the in the first instance. The rationale under- that drawing distinctions is prohibited on dissenting justices who posit that lack of lying the majority opinion lies in recog- the basis of disability only if the adverse qualification is merely an exception and nizing that Government Code section employment act occurs because of a dis- affirmative defense to the prohibition 12940(a) contemplates the existence of ability and the disability would not pre- against disability discrimination. The lawful personnel actions that are based on vent the employee from performing the court then looked to the general rule in work restrictions caused by one’s disabili- essential duties of the job even with rea- California that a plaintiff has the burden ty.16 This deduction is predicated on the sonable accommodation. In other words, of proving all facts essential to a claim for language in the FEHA, indicating that the in the case of disability discrimination, relief and found its position to be consis- prohibition against unlawful discrimina- “the plaintiff has not shown that a defen- tent with that rule.12 tion does not prohibit an employer from dant employer has done anything wrong refusing to hire or terminating an until the plaintiff can show that he or she A MATTER OF LOGIC employee who cannot perform the essen- was able to do the job with or without tial job duties.17 7 The dissent, passionately crafted by reasonable accommodation.” The majority found the phrase “does Justice Werdegar, deemed the majority’s The court found that this striking not prohibit” to be unambiguous. They opinion problematic for various reasons, similarity between the FEHA and the understand it to mean that the acts but identified an error in logic as the ADA was not a coincidence but reflected described thereafter are not unlawful most serious flaw: “Because section the Legislature’s deliberate attempt to because they are not proscribed. There is 12940(a)(1) relieves employers from lia- conform the FEHA provision, which a difference in the majority’s view bility for firing or refusing to hire a dis- addressed all forms of prohibited dis- between an act not being proscribed and abled person if the disability prevents that crimination based on protected classifica- an act being excused. Under the FEHA, person from performing the position’s tions, with an ADA provision specifically when an act is excused, it generally means drafted to address only disability discrim- essential functions, the majority reasons,

Volume 22, No. 2 California Labor & Employment Law Review 17 that while it would otherwise constitute ENDNOTES 10. Id. at 263. unlawful discrimination, that specific 11. Id. at 262. form of discrimination has been deter- 1. 42 Ca1. 4th 254 (2007). 12. See Evidence Code section 500, mined legally acceptable, as with a bona 2. California Jury Instructions, Civil, which states that “unless otherwise fide occupational qualification,18 for Book of Approved Jury Instructions, provided by law, a party has the bur- example. is cited as BAJI. den of proof as to each fact the exis- The court implicitly applied the 3. Green presumably contracted the tence or nonexistence of which is “Descriptive Nature Test,” which finds disease while working on the sewer essential to the claim for relief or immaterial that a proviso appears to be pipes at CIM. defense that he is asserting.” an exception to an offense.19 When the 4. 57 Cal. App. 4th 228 (1997). 13. Green, supra, 42 Ca1. 4th at 267. proviso is so pertinent to a claim that it 5. CACI means California Civil 14. Id. at 276 n. 8. constitutes a part of the definition or Instructions (pronounced “kay see”), 15. Id. description of the offense, it is an element and is the name of the official civil 16. The majority would point out that of the claim that must be proved to prove jury instructions and verdict forms pursuant to the FEHA, the disability the claim. Unlike gender discrimination, approved by the Judicial Council of discrimination is not unlawful unless the Legislature required that to prove dis- California Civil Jury Instructions on that employee also produces evi- ability discrimination, an adverse act July 16, 2003. Although the use of dence that he or she could perform must not only have been motivated by a CACI are not mandated, BAJI are no the essential job duties with or with- plaintiff’s protected class, but the plaintiff longer officially approved by state out reasonable accommodation. must also be able to perform essential job court rules. See Rule 2.1050 of the 17. Gov’t Code § 12940(a)(1). duties. It is a fundamental principle of Cal. Rules of Court; Civil Jury 18. Gov’t Code § 12940(a); CACI No. jurisprudence that plaintiffs always bear Instructions Resource Center 2501. the burden of proving they are entitled to Frequently Asked Questions, 19. People v. Gott, 26 Cal. App. 4th 881, relief. Thus, it was logical to assign the http://www.courtinfo.ca.gov/jury/civ 886 (1994) citing Ex Parte Hornef, burden attendant with this proviso to the iljuryinstructions/faqs.htm#1 (last 154 Cal. 355 (1908) (“ ‘The question plaintiff because it is the plaintiff who is visited Jan. 22, 2008). is whether the exception is so incor- making the claim of unlawful discrimina- 6. The trial court had inexplicably porated with, and becomes a part of tion and seeking relief. failed to instruct the jury on BAJI the enactment, as to constitute a part The dissent further expounds on the No. 12.14, an affirmative defense of the definition, or description of perceived logical fallacy of the majority, regarding inability to perform prof- the offense; for it is immaterial asserting that “in effect, the majority cre- fered by the defense and granted by whether the exception or proviso be ates a presumption that people with dis- the court when the court rejected the contained in the enacting clause or abilities cannot perform in the workplace special instruction. section, or be introduced in a differ- and that the plaintiff is being forced to 7. Green, supra, 42 Ca1. 4th at 265. ent manner. It is the nature of the prove that he or she can perform.”20 This 8. This difference is relevant to the exception and not its location which view, however, contrasts starkly with the extent that the dissent suggested the determines the question. Neither presumption the majority seeks to avoid: Legislature would have amended does the question depend upon any that employers have engaged in unlawful Government Code section distinction between the words ‘pro- discrimination absent any evidence that 12940(a)(1) to include the language vided’ and ‘except’ as they may be the personnel decision was, in fact, unlaw- “qualified individual” if it intended used in the statute. In either case, the ful. The court gave deference to the legisla- plaintiff to have the burden of prov- only inquiry arises, whether the mat- tive intent that an employer not be ing qualification or ability to per- ter excepted, or that which is con- required to employ an individual who can- form. Because that provision refers tained in the proviso, is so not perform essential job duties. The not only to disability discrimination, incorporated with, as to become, in FEHA provision applies to all employers but also prohibits all other forms of the manner above stated, a part of and is not limited to employers who can unlawful discrimination, the the enacting clause. If it is so incor- produce evidence to convince the jury of Legislature could not amend that porated, it shall be negatived, other- inability to perform as an affirmative language with respect to disability wise it is a matter of defense.’ The defense. After Green, a plaintiff is required discrimination without also affecting court further said that such excep- to provide evidence that the employer’s every other form of discrimination, tions and provisos were to be nega- conduct was prohibited by the FEHA in which there is no need for plaintiff tived in the pleading only where they before the employer is compelled to defend to be a qualified individual as are descriptive of the offense or the alleged unlawful discrimination. defined by the ADA. define it, and that where they afford Ultimately, this is what the court found to 9. Green, supra, 42 Ca1. 4th at 263, cit- [a] matter of excuse merely, they are be the logical allocation of burdens. ing Assem. Comm. on Judiciary, to be relied on in defense. (Id. at analysis of Assem. Bill No. 1077 359–60.).”) (1991–1992 Reg. Sess.) at 4, as 20. Green, supra, 42 Ca1. 4th at 268. amended Jan. 6, 1992.

18 California Labor & Employment Law Review Volume 22, No. 2 trial court dismissed both actions. In con- right and the arbitration procedures allow Public Sector nection with the second lawsuit the court for the full litigation and fair adjudication noted that the plaintiff had not alleged of a FEHA claim. Case Notes that he exhausted his administrative CONSTITUTIONALLY PROTECTED continued from page 5 remedies. The trial court held that it was SPEECH OF PUBLIC EMPLOYEES without jurisdiction to hear the case. forty-one other individuals. Because the The court of appeal reversed the trial Public Employee Complaints pay increase was applicable only to per- court, noting that in Schifando v. City of Regarding Corruption of Supervisors sons in his position, and not to all other Los Angeles, 31 Ca1. 4th 1074 (2003), the May Be Protected by First members of the class, it followed that his supreme court held that a public employ- Amendment increase was not part of his pay rate with- ee who claims to have suffered employ- Marable v. Nitchman, No. 06-35940, 2007 in the meaning of section 20636. ment-related discrimination need not WL 44853242 (9th Cir. Dec. 26, 2007) exhaust an available internal administra- COMMUNITY COLLEGE TEACHERS The plaintiff was suspended and tive remedy prior to suing on a claim demoted from his employment as a chief Failure to Exhaust a Grievance under the Fair Employment and Housing engineer for the Washington State Ferries. Remedy Does Not Preclude Act. The court distinguished this from the He sued the supervisors of the entity by Challenging a Termination Under the decision of the California Supreme Court which he was employed for instituting Fair Employment and Housing Act in Johnson v. City of Loma Linda, 24 Ca1. disciplinary action against him. His 4th 61 (2000), wherein an individual who Ortega v. Contra Costa Cmty. Coll. Dist., supervisors contended that he had had been terminated and pursued his 156 Cal. App. 4th 1073 (2007) engaged in misconduct including acts of grievance remedies to adverse conclusion The plaintiff was a probationary insubordination. However, the plaintiff but had failed to challenge an adverse instructor for a community college dis- asserted that the defendants were retaliat- decision was found to have failed to trict. In addition to teaching physical edu- ing against him for speaking out against exhaust his administrative remedies. cation, he served as the head football their corruption. He asserted that they Where a public employee elects to utilize coach. When he was removed from his engaged in schemes such as claiming the civil service remedies provided and position as head football coach, he filed a inappropriate overtime and using “spe- receives an adverse finding, that finding grievance through his union alleging a cial projects” to supplement their pay binds the trial court in any subsequent violation of the collective bargaining inappropriately. Plaintiff’s action was FEHA action unless its finding is over- agreement. During the following year, and filed under 42 U.S.C. section 1983, alleg- turned in a mandate proceeding. In the before the grievance could be heard, the ing violation of his First Amendment instant case the district argued that the plaintiff was terminated by the communi- rights. The trial court granted summary plaintiff only initiated the internal griev- ty college district as a probationary judgment for the defendants. However, ance procedure provided in the collective employee. He filed a grievance challeng- the Ninth Circuit reversed and remanded bargaining agreement following each ing his termination, but the collective bar- based upon the United States Supreme adverse employment action. However, in gaining agreement provided that Court’s decision in Garcetti v. Ceballos, the instant case the court noted that there probationary employees could not grieve 547 U.S. 410 (2006) and the Ninth was a critical difference where an employ- termination actions. Plaintiff filed com- Circuit’s decision in Freitag v. Ayers, 468 ee’s administrative remedies are provided plaints with the California Department of F. 3d 528 (9th Cir. 2006). by statute and where, as in the instant Fair Employment and Housing alleging The Ninth Circuit reviewed the case case, they were provided by a collective racial discrimination regarding both his de novo since the trial court had ruled on bargaining agreement. Under Alexander v. removal as head football coach, and later summary judgment. It found that plain- Gardner-Denver Co., 415 U.S. 36 (1974), over his termination. When he received tiff’s complaints concerning his superiors’ an arbitration procedure was mandated right-to-sue letters, he sued for racial dis- allegedly corrupt payment schemes were by a collective bargaining agreement. But crimination and violation of Government not in any way a part of his official job the U.S. Supreme Court held that an Code section 12940, intentional infliction duties. It noted that although his job adverse decision by an arbitrator did not of emotional distress and negligent super- description was not necessarily disposi- bar an employee’s subsequent claim under vision. The community college district tive, his job description did not include Title 7. In the Johnson case the grievance filed a motion to dismiss based upon the pointing to corrupt actions of higher level procedure was not a contractual grievance failure to exhaust the applicable grievance officials whom he purportedly thought procedure but rather a statutory grievance process. He filed a second complaint over were abusing the public trust in convert- procedure. A collective bargaining griev- his termination alleging race discrimina- ing public funds to their own use by over- ance procedure does not eliminate the tion, intentional infliction of emotional payments schemes. His official duties right to a jury’s determination of impor- distress, negligent supervision, retaliation related to “ensuring that all machinery tant state statutory rights afforded to indi- in violation of a Government Code and aboard [his] vessel, both mechanical and vidual workers unless the collective wrongful termination in violation of pub- electrical, . . . was properly maintained bargaining agreement clearly and unmis- lic policy. He sought reinstatement to his and serviced.” Thus, when he spoke out takably provides that the resolution of the position as head football coach as part of regarding alleged corruption, he was issue by arbitration eliminated such a his remedies in the second action. The engaging in protected free speech.

Volume 22, No. 2 California Labor & Employment Law Review 19 PUBLIC EMPLOYEES’ CONSTITUTIONAL to answer questions or waive their immu- sting operation and that it also did not RIGHTS nity against self-incrimination. apply to statements made during the “in Chief Judge Kozinski dissented from custody” criminal interrogation. The Employees Who Are Required to the affirmance of the summary judgment. court of appeal vacated the injunction. Remain at Work During Internal He pointed out the “ambiguity” of a law Government Code section 3303, provides Investigations Into Suspected enforcement agency acting as both an in part that the POBRA does not apply to Misconduct Are Not “Seized” for employer and a criminal investigation any interrogation of a public safety officer Purposes of the Fourth Amendment entity. He would hold that an employer in in the normal course of duty, counseling, Aguilera v. Baca, 510 Fed. 3d 1161 (9th this situation must make it clear in what instruction, or informal verbal admon- Cir. 2007) capacity it is acting. In short, he felt that ishment by, or other routine or The plaintiffs were Los Angeles there was a triable issue of fact as to unplanned contact with, a supervisor or County deputy sheriffs. They alleged in a whether the plaintiffs were under arrest. any public safety officer. Furthermore, the suit filed under 42 U.S.C. section 1983 Similarly, Judge Kozinski argued, there was POBRA does not apply to “an investiga- that they were improperly detained at a triable issue as to whether the employer’s tion concerned solely and directly with work while they were questioned in con- conduct constituted compulsion. alleged criminal activities.”The trial court nection with an internal criminal investi- had relied on dicta in California PEACE OFFICER BILL OF RIGHTS gation into their possible misconduct Correctional Peace Officers Association v. while on uniform patrol duty. The Peace Officer Bill of Rights Do Not State of California, 82 Cal. App. 4th 294, deputies were ordered to remain at the Apply to Officers Who Are Subject to 309 (2000) (CCPOA), that criminal station to be interviewed after their shifts Criminal Investigations Conducted by investigation of law enforcement officers had concluded. They were never placed Their Employers by their employers falls within the under arrest. They were never searched. POBRA. The court of appeal in the Van Winkle v. County of Ventura, 158 Cal. They were not physically restrained or instant case distinguished the CCPOA App. 4th 492 (2007) otherwise touched or subjected to the use because that case did not involve a law The Public Safety Officers of force. They were offered food and enforcement agency’s sting operation Procedural Bill of Rights (POBRA), other refreshments and were allowed to which was designed to stop its officers Government Code section 3300 et seq., talk to each other, to sleep, and to make from engaging in ongoing crimes. The provides certain protections for law and receive phone calls and go to the CCPOA case involved an investigation of enforcement officers who are subjects of bathroom unescorted. Each of them prison guards concerning a prior incident administrative investigations. Included declined to provide any statements on involving the guards’ alleged instigation among these protections is the right to be advice of counsel. They were not asked to of an attack on an inmate. The informed of certain matters before being waive any privileges against self-incrimi- Department of Corrections had threat- asked to provide information. (Gov’t nation, or otherwise compelled to make a ened its employees with criminal and dis- Code § 3303.) The plaintiff was arrested statement. Two months later they were ciplinary action for not cooperating with for embezzling property from the sher- compelled to make statements. No the investigation. In dicta the court stat- iff’s department. He challenged his termi- charges were ever brought against them. ed, “Almost every administrative investi- nation and brought an action under the The instant case called into question gation of alleged misconduct could be POBRA for injunctive relief claiming that whether or not under the Fourth recast as a criminal investigation to avoid the statements that he made during a Amendment the individuals had been the requirements of the Act. Thus, we criminal investigation must be sup- “seized.” The Court of Appeals for the agree that criminal investigations referred pressed and not introduced at his civil Ninth Circuit held that they had not been to in subdivision (i) of section 3303 . . . service hearing. The trial court enjoined seized within the meaning of the Fourth must be ones conducted primarily by the county from using statements made Amendment. The court relied in part on outside agencies without significant during an in-custody criminal interroga- the fact that each of the deputies involved active involvement or assistance by the tion, but did not enjoin the county from was well versed through training and on- employer.” The court of appeal in the using statements which the plaintiff made the-job experience in the manner in which instant case felt that the Legislature had during a sting operation. This case arose employees are placed under arrest. Under defined investigations which were subject in the unusual context of an injunction in the circumstances, they must have been to the POBRA, such as disciplinary advance of the civil service hearing, and aware that when they were not searched, actions, and distinguished those from thus there were no evidentiary rulings booked and otherwise treated as persons those which were not, e.g. routine investi- made by the civil service commission’s under arrest, they must have known that gations and criminal investigations. The hearing officer. they had not been in a situation of “crimi- POBRA does not distinguish between Both the plaintiff and the county nal seizure.” According to the majority, employer instigated investigations and appealed the trial court’s action. The their Fifth and Fourteenth Amendment non-employer law enforcement investiga- court of appeal held in favor of the coun- rights had not been violated when they tions. ty, concluding that the POBRA did not were questioned about possible miscon- apply to statements made during the duct, given that they were not compelled

20 California Labor & Employment Law Review Volume 22, No. 2 PUBLIC EMPLOYEES government. (Glendale City Employees’ college districts. The bylaws of the Ass’n v. City of Glendale, 15 Ca1. 3d 328, Consortium provided that “All instruc- County Civil Service Commission May 336 (1975)) According to the court, to hold tional staff shall be contracted from mem- Not Impose Discipline Which Is Not that the agreement was only binding on the ber districts via a written agreement with Authorized Under a Memorandum of county but not the civil service commis- the Consortium.” The staffing agreement Understanding With Union sion would make the MOU illusory. The stated that employees provided to the Valencia v. County of Sonoma, 158 Cal. county’s board of supervisors had Consortium “shall not be considered App. 4th 644 (2007) approved the MOU and the language that employees of the [Consortium], but of the An alcohol and drug services coun- purported to bind the commission, yet, the district, for purposes of seniority, place- selor employed by the Sonoma County court noted, the county was now disavow- ment or advancement on the district’s Department of Health Services was ter- ing its own action. The court did not agree salary schedule or accruing any other minated by the Director of Health that because the county civil service com- rights or privileges afforded district Services as a result of alleged misconduct. mission did not participate in the negotia- employees under district collective bar- The employee appealed his order of ter- tions which led to the MOU, that it was not gaining agreements and policies.” mination. Under the Sonoma County bound by it, notwithstanding the county’s Notwithstanding that language, the Code, the civil service commission may argument which relied upon Los Angeles instructors were paid at rates set by the “prescribe, amend and enforce rules for County Civil Commission v. Superior Court, Consortium, rather than the various salary the classified service, . . . make investiga- 23 Ca1. 3d 55 (1978). The court also dis- schedules in district collective bargaining tions concerning enforcement in effect . . . agreed with the county’s argument that the agreements. However, the instructors were of the rules and efficiency of the service.” civil service commission’s autonomy “boarded” by the various districts, mean- It may also make rules concerning “pro- meant that it was not bound by an agree- ing that the districts would confirm that motion, demotion, transfer and reinstate- ment entered into by the county. The com- an instructor meets Title 5 minimum ment.” It also hears appeals of dismissals, mission is an agency of the county and is qualifications in a particular faculty serv- suspensions and reductions in rank or bound by agreements entered into by its ice area or academic discipline. The compensation. The employee’s appeal governing body where that agreement Consortium did not have the legal author- was heard by the commission which expressly lists the commission as one of the ity to “board” instructors, nor could the vacated his termination and imposed a entities bound by its terms. Consortium legally generate FTES. limited suspension and a temporary The charging parties were both hired JOINT POWERS AGREEMENT reduction in salary. That discipline was and boarded by the District. They consistent with the memorandum of Status of a Consortium Under a Joint received paychecks from the District, and understanding (MOU) entered into by Powers Agreement as an Employer or the District contributed into the the county and the plaintiff’s union. Joint Employer California State Teachers Retirement However, the county counsel appeared at System on their behalves. The District Joseph Doherty v. San Jose/Evergreen a subsequent commission meeting and was reimbursed for those costs by the Cmty. Coll. Dist.; James O’Neil v. San asked the commission to re-evaluate its Consortium. Although the staffing agree- Jose/Evergreen Cmty. Coll. Dist., PERB decision and impose a harsher discipline. ment provided that evaluations of the Decision 1928 (2007) The commission agreed and permanently instructional faculty would be done in The charging parties were originally demoted the plaintiff, ordering him to accordance with District policies, the employed by the San Jose/Evergreen serve a new one-year probationary peri- District did not evaluate or supervise the Community College District (District). od. This discipline was in excess of the Consortium faculty. Generally speaking, They were hired in a part-time capacity to discipline that was authorized by the the collective bargaining agreements teach classes for police officers, fire fight- MOU. The trial court granted a writ of between the participating districts and ers and other public safety personnel. A mandate and directed the commission to employee organizations representing joint powers agreement (JPA) was reconsider its decision and, at its discre- employees of those districts ignored entered into by that District and other tion, impose discipline which was consis- Consortium instructors. community college districts, which tent with the MOU. The court of appeal The charging parties questioned a became known as the “Consortium.” affirmed. On appeal the county main- Consortium rule which restricted the The purpose the Consortium was to pro- tained that the trial court was attempting hours which they could teach to keep vide classes for students of the various to interfere with the commission’s discre- them below the 60 percent level which districts. Under the JPA, each member tion by requiring the civil service com- demarcates the difference between a part- district generated full-time equivalent stu- mission to comply with its interpretation time and a full-time instructor in com- dent revenues (FTES). Each participating of the language of the MOU. The county munity colleges. (Educ. Code § 87482.5.) district member committed to generating asserted that the commission did not The charging parties sought the assistance a minimum of twenty-five FTES, which is abuse its discretion in imposing harsher of the union which represented instruc- a measurement of student attendance. The discipline because its discretion was not tional employees of the San Jose/ agreement also provided that instructional limited or governed by the MOU. Evergreen Community College District. personnel would be recommended by the The court of appeal noted that the The union, through its attorney, sent a let- Consortium but employed by a contract MOU was a binding agreement between ter to both the District and the with one of the participating community the employee organization and the local Consortium asserting that the charging

Volume 22, No. 2 California Labor & Employment Law Review 21 parties should be reclassified as proba- ently disregarded most of the provisions state funding. There is no allegation that tionary employees because they had in the JPA Agreement, the staffing agree- the parties officially terminated any of the worked in excess of the 60 percent limit in ment and the bylaws . . . regarding the agreements, notwithstanding the several of the preceding semesters. Shortly employment, management and supervi- District’s alleged abandonment of the thereafter, the Consortium began reduc- sion of the Consortium’s faculty.” The governing terms of the Operational ing the hours assigned to the charging District, according to the majority, ceded Documents. I would thus find these parties, finally eliminating all hours for virtually all control over the charging agreements to be still operative since the one of them. The charging parties filed parties to the Consortium after initially Consortium’s share of state FTES funding unfair practice charges with the Public hiring and “boarding” them. Thus, with- defends upon District’s retention of con- Employment Relations Board (PERB) out input or assistance from the District, trol over the employees. More significant- accusing only the District, and not the the Consortium selected, evaluated, ly, the charging parties would lack Consortium, of retaliation for engaging in scheduled, supervised and counseled the protection in the absence of PERB’s asser- protected concerted activities. Pursuant to charging parties. tion of jurisdiction. The majority’s find- North Orange County Regional Board member Shek submitted a vig- ing that the District is not an employer of Occupational Program PERB Decision No. orous dissent, “In my opinion, the majori- the charging parties may leave them with- 857 (1990), a consortium as a public joint ty’s rationale stated above would provide out a PERB remedy. I submit this would powers agency was deemed to be outside an unwarranted safe harbor for the frustrate the intent of the law.” Although of the PERB’s jurisdiction because con- District, which would otherwise be sub- Board member Shek relied on the author- sortiums are not included as “employers” ject to the jurisdiction of the Educational ity of PERB’s decision in Ventura County under the Education Employment Employment Relations Act (EERA) pur- Community College District, PERB Relations Act (EERA) definition. suant to the provisions of full-time equiv- Decision No. 1547 (2003), she stated that The administrative law judge found alent student (FTES) regulations and the the argument in favor of finding that the in favor of the charging parties, finding operational documents, if not for the fact District here is a joint employer of that the District and the Consortium that it had ‘consistently and repeatedly . . . Consortium instructional staff is “even were “joint employers” and that the largely ignored and routinely breached’ more persuasive than the argument in District, through the actions of the charg- the contract language of the employment favor of joint employer status in Ventura.” ing parties’ supervisors (Consortium provisions in the Operational A petition for extraordinary relief employees), had retaliated against them Documents. . . . I believe that the majori- has already been filed with the Sixth for engaging in protected activities. ty’s interpretation of the law and the Appellate District of the Court of Appeal By a two-to-one decision the PERB Operational Documents would give the of the State of California. Legislation is reversed the administrative law judge’s District an excuse not to fulfill its duties to pending which would change the defini- proposed decision and dismissed the control and direct District employees who tion of “employer” in the EERA to include case. The majority found that “The are Consortium instructors—obligations public school district joint powers agree- District and the Consortium have appar- which are concomitant to its receipt of ments. (A.B. 1463 (2007)) LABOR & EMPLOYMENT LAW Visit the Section’s Website Those who haven’t visited the Labor & Employment Law Section’s website in a while are in for a surprise.

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22 California Labor & Employment Law Review Volume 22, No. 2 LABOR & EMPLOYMENT LAW Educational Seminars 2008 Employment LawGeneralist ERISA Basicsforthe Employees with EmotionallyDisturbed The LegalPathinDealing Hour Issues Retail IndustryWageand Industry Workplace Legal IssuesintheBiotech San Francisco Octo San Francisco June 19 Los Angeles May 7 San Diego

The Labor & Employment Law Section presents a special series of seminars on seminars of series aspecial Law presents Labor&Employment The Section For additional information, visitusonline atwww.calbar.ca.gov/laborlaw Disability DiscriminationLitigation, March 25 Each track is being offered track isbeing inLosEach Angeles andSanFrancisco. Use ofExpertsandStrategiesforExpert Discovery Los Angeles De Los Angeles July 16 Los Angeles Los Angeles M Pre-Litigation inaDisabilityDiscriminationCase Discovery inaDisabilityDiscrimination Case b Trial inaDisabilityDiscrimination Case er 24 in aDisabilityDiscriminationCase ce arch 19 J une 4 from pre-litigation through trial. trial. through from pre-litigation mb

er 10 Law Conference Annual Labor&Employment 14th AnnualPublic Sector Conference Sexual Harassment— Train theTrainers San Diego Sacramento San Diego July County Orange 11 Sacramento San Francisco J San Francisco M San Francisco De San Francisco M Octo Octo Apr Apr b b il 11 il 10 er 31-N er 30 ce 23 uly ay 28 arch 26 ove mb mb er 3 er 1

14th Annual Public Sector Conference Friday, April 11, 2008 • Radisson Hotel, Sacramento, CA

SESSION 1 SESSION 6 Public Sector Year in Review Religion in the Public Workplace A fast-paced review of the year’s most important More and more public employees and employers court decisions, administrative rulings, and new and are grappling with religion in the workplace. What proposed legislation affecting the public sector. accommodations must an employer provide for an employee’s religious practice? How far can employees go when discussing religion in the SESSION 2 workplace? Join our panelists as they tackle these Accommodating the Public Employee and other difficult issues. Join our experts as they discuss the intricacies involved in accommodating public employees in SESSION 7 light of recent court decisions. Modifying Employee and Retiree Health Care Benefits SESSION 3 The debate continues to rage – is it legal to modify PERB Remedies employee and retiree health care benefits or not? So you won your case before PERB; now what? Our panelists will share their strong opinions on this Our panelists will discuss the remedies available timely topic. before PERB and common pitfalls during the compliance process. SESSION 8 Ask the Expert SESSION 4 Do you have a question you always wanted to California Wage & Hour Issues ask an arbitrator or administrative law judge? in the Public Sector This is your chance to pick the minds of our Does state wage and hour law apply to the public esteemed panel. sector? Yes and no. Discover the intricacies of state wage and hour law and what it means to SESSION 9 public sector employers and employees in this Government Writ Practice interesting panel. Are you engaged in writ practice? If so, you won’t want to miss this panel as our SESSION 5 experts discuss common mistakes and Lunch/Keynote Speaker provide strategic advice in bringing and Fredericka McGee, General Counsel to defending against writs. Assembly Speaker Fabian Núñez As General Counsel to the Speaker of the Assembly, Fredericka McGee is charged with brokering compromises among the most powerful and strident interest groups in the state. For her efforts to pass legislation promoting judicial diversity she was named by the California Lawyer as an Attorney of the Year. She was also recently named one of the state’s Top 100 Lawyers by the Daily Journal. Ms. McGee will share her thoughts on the things to come in the field of labor and employment law in the next few years.

24 California Labor & Employment Law Review Volume 22, No. 2 Earn 6.25 hours MCLE credit. You can now REGISTER ONLINE at www.calbar.org/laborlaw/public-sector

SESSION 10 Hot Issues in Collective Bargaining What are the “hot” issues in public sector collective bargaining, and how are employers and unions approaching those issues? This is a panel that you don’t want to miss.

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Volume 22, No. 2 California Labor & Employment Law Review 25 found in favor of Mokler on the sexual defense found in Title VII and the ADEA. Employment Law harassment/hostile work environment Further, the court reversed the judgment claim, it awarded her no damages on that with respect to plaintiffs’ claim for viola- Case Notes claim. Both sides appealed. The court of tion of the Unruh Act on the ground that continued from page 6 appeal ordered the trial court to enter it does not incorporate the employment judgment in favor of defendants on the discrimination provisions found under Opportunity Commission (EEOC) in sexual harassment claim, holding that Title I of the ADA. 1999 in which he alleged that ACSC had County Supervisor Chris Norby’s acts Employee Who Was Convicted for discriminated against him on the basis of vis-à-vis Mokler (making various rude Taking Bribes Could Be Kept Away his age. Thereafter, Wysinger’s work envi- and inappropriate comments and placing From Employers’ Money ronment changed—he was no longer his arm around Mokler while rubbing invited to be on management committees against her breast) were not sufficiently United States v. Betts, 2007 WL 4355365 or to apply for management positions; he severe or pervasive to establish a hostile (9th Cir. Dec. 14, 2007) was treated “coldly” and ignored at man- work environment. The court found that Marcus Brandon Betts, who worked agement meetings; ACSC ignored substantial evidence supported Mokler’s for TransUnion (one of the three major requests to accommodate his disabilities retaliation claim, which was based on her credit reporting agencies), took bribes to (lupus, a heart condition and rheumatoid termination following her complaint to conspire with his co-defendants to falsely arthritis); he received unfavorable job her supervisors that the county had improve credit scores. According to the evaluations; and staff was transferred engaged in illegal activity by reorganizing Ninth Circuit, “it was a kind of private from his office, creating a hardship for the OoA. Finally, the court affirmed the sector ticket-fixing scheme.” Betts falsi- Wysinger. The jury found that ACSC had new trial order, holding that the non-eco- fied 654 credit histories, which generated retaliated against Wysinger because he nomic damages were excessive in light of about a million dollars in losses to had filed the EEOC complaint and that it the fact that Mokler had no trouble find- lenders. He pled guilty to conspiracy but had failed to engage in the interactive ing a new job (two weeks later) and her challenged some of the conditions of his process in connection with Wysinger’s reputation was not damaged. supervised release, including a restriction disability—though the jury also found that Betts “shall not be employed in any UPS May Not Have Violated the ADA that ACSC had not discriminated against capacity wherein he has custody, control, by Excluding Deaf Drivers Who Failed Wysinger on the basis of his disability or or management, of his employer’s funds, to Satisfy DOT Hearing Standard his age. The jury awarded Wysinger eco- lines of credit, or any similar sources of nomic damages of $204,000, non-eco- Bates v. United Parcel Serv., 2007 WL money.” Betts argued that the restriction nomic damages of $80,000, and punitive 4554016 (9th Cir. Dec. 28, 2007) (en banc) was an abuse of discretion by the trial damages of $1 million. In addition, the One of the requirements applied by court because his crime did not involve trial court awarded attorney’s fees to UPS to those applicants seeking to drive stealing from his employer. The Ninth Wysinger in the amount of $978,791. The the familiar brown “package cars” was Circuit disagreed and held that “as an court of appeal affirmed the judgment, that they pass the physical examination employee, he owed [TransUnion] a fidu- holding that substantial evidence sup- (including a hearing exam) that the ciary duty of loyalty. An employee’s duty ported the finding of retaliation and fail- Department of Transportation (DOT) of loyalty includes a duty to act solely for ure to engage in the interactive process. requires of drivers of commercial vehicles the interests of his employer within the of a gross vehicle weight rating (GVWR) business area for which he is employed, Evidence Supported Whistleblower of at least 10,001 pounds. (UPS’s vehicles account to the employer for money Retaliation Claim but had a GVWR of 9,318 pounds or less.) received in connection with his work, and Not Sexual Harassment Plaintiffs in this case (a class of deaf UPS avoid undisclosed interests that might Mokler v. County of Orange, 157 Cal. App. applicants and employees) challenged the affect his conduct as an employee.” Cf. 4th 121 (2007) company’s application of the DOT stan- Otsuka v. Polo Ralph Lauren Corp., 2007 Pamela Mokler was employed as the dard, which did not apply to the vehicles WL 3342721 (N.D. Cal. Nov. 9, 2007) executive director of Orange County’s in question. The Ninth Circuit, sitting en (employer stated claim against employee Office on Aging (“OoA”). Following her banc, reversed the district court’s judg- for breach of duty of loyalty associated termination, she sued the county for ment that was rendered in favor of plain- with allegedly fraudulent transactions). breach of contract, wrongful termination, tiffs because it had failed to analyze Sales Representative’s $480,000 hostile work environment and unlawful whether plaintiffs were “qualified indi- Wrongful Termination Award Is retaliation under Labor Code section viduals” capable of performing the Affirmed 1102.5 (the “whistleblower statute”). The “essential function” of safely driving a jury awarded Mokler $14,089.60 in past package car. The court overruled its earli- Casella v. SouthWest Dealer Servs., Inc., economic damages and $1,681,823 in er opinion in Morton v. United Parcel 157 Cal. App. 4th 1127 (2007) past and future emotional distress dam- Serv., Inc., 272 F. 3d 1249 (9th Cir. 2001), Zachary Casella was employed as a ages (which the trial court reduced to to the extent that that opinion imported sales representative for SouthWest Dealer $125,000 if Mokler would not agree to a into the analysis of an ADA claim the Services, which sells its aftermarket auto new trial on damages). Although the jury bona fide occupational qualification products to auto dealerships and helps

26 California Labor & Employment Law Review Volume 22, No. 2 train auto dealership finance and insur- faith and fair dealing based on certain Allen Harman and two other white males ance salespeople on how to promote and misrepresentations that allegedly had who were employed as airfield safety offi- sell SouthWest’s products. Casella moved been made by his supervisors. The agency cers at the San Francisco International from New York to California to accept the agreement in question provided that “You Airport. After the case went to trial, a jury position. After his employment was ter- or State Farm have the right to terminate awarded Harman $15,300 as damages for minated approximately five months later, this Agreement by written notice deliv- economic harm and another $15,000 for Casella sued SouthWest for wrongful ter- ered to the other or mailed to the other’s emotional distress. The trial court subse- mination in violation of public policy, last known address.” The court of appeal quently awarded Harman attorney’s fees fraud, and fraudulent inducement in vio- held that this provision rendered in the amount of $1.1 million. The court lation of Labor Code section 970. Casella Bernard’s employment terminable at of appeal affirmed the award of substan- alleged that his employment was termi- will—even in the absence of more precise tially all of the attorney’s fees that were nated in retaliation for his having report- language. Therefore, Bernard’s claim for awarded by the trial court notwithstand- ed SouthWest’s participation in some of breach of the implied covenant of good ing the relatively small amount of the its car dealership clients’ fraudulent busi- faith and fair dealing had been properly underlying judgment. Cf. Engle v. ness practices known as “payment pack- dismissed by the trial court. Copenbarger & Copenbarger, 157 Cal. ing” (which involved dealership sales App. 4th 165 (2007) (former legal assis- Release Enforced as to Defamation personnel quoting inflated monthly pay- tant who accepted law firm’s offer to and Overtime Claims—But Not Claim ment amounts in order to hide the true compromise sexual harassment claims Under USERRA cost of aftermarket products). Casella pursuant to Code of Civil Procedure sec- also alleged that he was fraudulently Perez v. Uline, Inc., 157 Cal. App. 4th 953 tion 998 was entitled to recover her attor- induced to move to California to take the (2007) ney’s fees on top of the settlement job because SouthWest had failed to dis- On the day that Brian Perez, a cap- amount that was offered—because the close its involvement in these fraudulent tain in the United States Marine Corps offer failed expressly to exclude fees and activities. The jury found in favor of Reserves, returned to work after duty costs). Casella, awarding him $240,000 in com- with the Reserves, his employment with Ranger Who Was Injured in Residence pensatory damages and $240,000 in Uline, Inc. was terminated. He was pre- Provided by State Was Limited to punitive damages. The court of appeal sented with a “Severance Agreement and Workers’ Compensation Remedies affirmed the judgment on the grounds Release,” offering him severance in the that Casella’s public policy claim was amount of six weeks’ salary in exchange Vaught v. State of Cal., 157 Cal. App. “tethered” to Penal Code section 487 for his execution of the release. The 4th 1538 (2007) (criminal fraud) and that the section 970 agreement stated that Perez had seven Marck Vaught was employed as a verdict was supported by substantial evi- days to accept it and advised him “to con- resource ranger for the state of California dence. Finally, the court affirmed an sult with an advisor of his choice prior to (State). His position required him to be award of $12,500 in attorney’s fees to executing it.” On the seventh day, Perez on call “all the time.”As an inducement to Casella associated with his successful signed the release. Perez subsequently accept the position, the State offered defense against SouthWest’s cross-com- sued Uline and three of its employees, Vaught and his wife the use of a residence plaint for breach of contract—however, alleging wrongful termination in viola- located in the district in which Vaught he could not recover any attorney’s fees tion of the Uniformed Services worked. Vaught subsequently slipped and associated with the prosecution of his Employment and Reemployment Rights fell in the bathroom of the residence, and affirmative claims against SouthWest Act of 1994 (USERRA), breach of oral sued the State for negligence and failure since he did not allege a breach of the contract, defamation and failure to pay to make the house habitable for human contract that contained the prevailing- overtime in violation of the California occupation. Vaught’s wife sued for loss of party attorney’s fees provision. Labor Code. The court of appeal enforced consortium. The trial court granted the the release and affirmed dismissal of State summary judgment on the ground Insurance Agency Agreement Was Perez’s claims with the exception of the that the Vaughts’ claims were subject to Terminable at Will claim arising under USERRA, which the exclusive remedies provided by the Bernard v. State Farm Mut. Auto. Ins. Co., expressly states that a contract may not Workers’ Compensation Act. The court of 158 Cal. App. 4th 304 limit the protections of the statute. appeal affirmed. Cf. Millard v. Biosources, William Bernard had an insurance Inc., 156 Cal. App. 4th 1338 (2007) (gen- $1.1 Million in Attorney’s Fees agency, representing certain State Farm eral contractor had no duty of care to Awarded Following Recovery of insurance companies. Bernard alleged he injured employee of subcontractor). $30,300 Discrimination Judgment was forced to resign when he was unable to carry out the physical requirements of Harman v. City & County of San the sales program following injuries he Francisco, 158 Cal. App. 4th 407 sustained in a car collision. Among other This case, which was originally filed things, Bernard sued State Farm for in federal court in 1999, involved allega- breach of the implied covenant of good tions of race and sex discrimination by

Volume 22, No. 2 California Labor & Employment Law Review 27 MEMBER BENEFIT

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receive immediate alerts on legislation and Labor and EmploymentLabor and Employment Law Section Law of theSection State of Ba the State Bar of California Labor and Employment Law Section of the State Ba more. On a within-the-hour basis and as Labor and Employment Law SectionLabor of theLabor State & Ba Employment & Employment Case Case Law Law Alert Alert Labor & Employmentr of California r ofCase California Law Alert they are published, members will access Labor & ThisEmployment update is b Case Law Alertr of California This update is being provided by eing provided by Phyllis W. Cheng new California Supreme and Court of This update isPhyllis being provided W. ChengSenior by Appellate C Senior AppellateCalifornia Court Attorney Court of Appeal Second Appe Womack v.Womack SF Community v. SF Community College Dist. College (CA Dist.1/2 A112564 (CA 1/2 A1125642-15-07) 2-15-07) California Court of Appeal ourt Attorney Phyllis W. Cheng Division Seven Womack v. SF Communit This update is being providedSenior by AppellateSecond Court Appellate Attorney District, llate District, Division Seven300 S. Spring St., 3rd Floor Appeal, Ninth Circuit and U.S. Supreme California CourtWomack of AppealLos v. Ange SFles, Community CA 90013-1230 College Dist. (CAy College 1/2 A112564 Dist. (CA2-15-07) 1/2 A112564 2-15-07) Second Appellate300 S. District, Spring St., 3rd Floor Appellant appealsAppellant from appeals the trial from court’s the trial denial court’s of denialhis petition of his for petition a writ for of amandate writ of mandate Phyllis W. Cheng Los Angeles, CA213-830-7411 90013-1230 Division Seven Senior Appellate Court Attorney 213-830-7411FAX 213-897-2429Appellant brought appeals pursuant broughtfrom the topursuant trial Code court’s of to Civil Code denial Procedure of ofCivil his Procedure petition section for 1085. section a writ By 1085.of that mandate petition, By that petition,he he 300 S. Spring St., 3rd [email protected] California Court of Appeal FAX 213-897-2429 brought pursuantsought to to soughtcompel Code to respondentsof compel Civil Procedure respondents to reinstate section to reinstatehim 1085. as a himByregular thatas a employee petiregulartion, employee he in the in the Court decisions, as well as new statutes. Los Angeles, CA 90013-1230www.courtinfo.ca.gov [email protected] appeals from the trial court’s denial of his petition for a writ of mandate Second Appellate District,213-830-7411 sought torespondent compel respondentrespondents District’s District’s(hereafter to reinstate (hereafter District) him as EnglishDistrict) a regular asEnglish a employeeSecond as a SecondLanguage in the Language (ESL) (ESL) www.courtinfo.ca.gov Division Seven FAX 213-897-2429brought pursuant to Code of Civil Procedure section 1085. By that petition, he 300 S. Spring St., 3rd Floor respondentDepartment District’Department on the basis on the that basis the priorthat thelevel prior of hislevel work of his in thatwork department in that department had had [email protected] to compelDepartment respondentsaltered on to histhe reinstatealtered statusbasis his thatfrom him status the thatas priorfroma of regular a levelthat“temporary of employeeof a his “temporary workemployee” in in the thatemployee” to department one of to aone “contract had of a “contract Section member and attorney Phyllis Los Angeles, CA 90013-1230www.courtinfo.ca.gov s (hereafter District) English as a Second Language (ESL) 213-830-7411 respondent District’saltered (hereafter hisemployee” status District)employee” from who thatcouldEnglish whoof nota could“temporaryas be a terminated Secondnot be employee” terminated Language in the manner toin (ESL)onethe manner ofor atime “contract orframe time he frame was he in was in FAX 213-897-2429 DepartmentWendy P. Rouder on theemployee” basis2001. that who the The could2001. prior trial not levelThecourt be trial of deniedterminated hiscourt work the denied motion inin thatthe the manner departmentonmotion two grounds: onor twotime had grounds: frame (1) under he (1) was theunder inapplicable the applicable [email protected] Chair Wendy P. Rouder www.courtinfo.ca.gov alteredArbitration-Me his status2001. from thatThestatutes, oftrial a statutes,“temporarycourt appellant’s denied appellant’s employee”status the motion had status not,to on onehad intwo fact, not,of grounds: a changed in“contract fact, (1)changed and under he andwasthe heappli thus was still thus a still a Cheng will provide you with a flash head- Chair employee”Factfinding who could not be terminatedtemporary in employee the manner as of or the time date frame of his he termination; was in and (2) laches. We agree Arbitration-Mediation- statutes,temporary appellant’s employee status as of the date of his termination; and (2) laches. We agree Wendy P. Rouder McLar diation- with the trial court on both grounds and hence affirm. Factfinding2001. enThe Station trial courttemporary deniedwith employee the the trial motion court as of onon the twoboth date grounds: grounds of his andtermination;(1) under hence the affirm. and applicable (2) lache s. We agr Chair PO Box 347372 McLarenstatutes, SanStation Francisco, appellant’s CA 94134with thestatus trial had court not, on in both fact, grounds hadchanged not, and in and fact,hence he was affirm. thus still a line subject alert, a very brief excerpt and Arbitration-Mediation-PO Box 347372 Factfinding temporary415-563-6205 employee ashttp://www.courtinfo.ca.gov/opinions/documents/A112564.DOC of thehttp://www.courtinfo.ca.gov/opinions/documents/A112564.DOC date of his termination; and (2)changed laches. and We he agree was thus still a San Francisco,FAX 415-563-6205 CA 94134 Wendy P. Rouder McLaren Station [email protected] the trial courthttp://www.courtinfo.ca.gov on both grounds and hence/opinions/doc affirm. cable Chair PO Box FAX347372 415-563-6205 relevant links on matters that could affect Arbitration-Mediation-San Francisco,[email protected] CA 94134 Factfinding 415-563-6205 Philhttp://www.courtinfo.ca.gov/opinions/documents/A112564.DOC Horowitz ee McLaren Station FAX 415-563-6205Law Offices of Phil Horowitz uments/A112564.DOC PO Box 347372 [email protected] HorowitzOne Market Plaza your practice. San Francisco, CA 94134 Law OfficesSteuart of Tower,Phil Horowitz Suite 2630 415-563-6205 One MarketSan Francisco, Plaza CA 94105 Phil Horowitz FAX 415-563-6205 Steuart 415-391-0111Tower, Suite 2630 Law Offices of Phil Horowitz [email protected] Francisco,FAX 415- CA 391-0123 94105 One Market415-391-0111 phil@crePlaza ative. SteuartFAX Tower, 415- Suite 391-0123 2630 For more information about the Labor and Employment Law Section, please San Francisco, CA 94105 net For more information about the Labor and Employment Law Section, please Phil Horowitz [email protected] see the committee's Web site: www.calbar.org/labor. Law Offices of Phil 415-391-0111Horowitz For seemore the information committee's about Web thesite: Labor www.calbar.org/labor and Employment .Law Section, please One Market Plaza FAX 415- 391-0123 In order to receive these alerts you will [email protected] Steuart Tower, Suite 2630 see the Thesecommittee's periodic e-mails Web are being site: sent towww.calbar.org/labor you be . 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28 California Labor & Employment Law Review Volume 22, No. 2 the Labor Management Relations Act, upon discharge or within seventy-two Wage & Hour employees may bring suit directly against hours of resignation, defendant paid them an employer for violation of a CBA to vin- on the next scheduled pay day. There was Update dicate “uniquely personal rights” such as no dispute over the underlying wages. continued from page 9 wages and overtime pay, but must exhaust The trial court granted defendant’s any mandatory grievance procedures pro- motion to strike those portions of the many other factors weigh in favor of class vided for in the agreement. It was undis- complaint which sought waiting time resolution in wage and hour cases, puted that Soremekun had not exhausted penalties for the four-year period prior to including that current employees may the CBA’s grievance procedures. There the filing of the complaint, finding that not bring individual actions out of fear of was an exception to this exhaustion because plaintiff sued for waiting time retaliation, current employees might not requirement where an employee could penalties only and not wages, section 203 know of their rights, and the necessity of demonstrate that the union representing did not apply. class actions to give “teeth” to wage and the employee had breached its duty of fair Plaintiff’s petition for writ of man- hour laws. Further, the California representation. The court found the date challenging the trial court’s order Supreme Court has specifically held that exception did not apply here, as plaintiff raised the issue of the precise meaning of an administrative action before the Labor had neither alleged nor proven that the section 203, which provides, “Suit may be Commissioner is an inadequate substi- union breached its duty to him with filed for these penalties at any time before tute for a class action. respect to his wage claim. the expiration of the statute of limitations Plaintiff’s state law claims for failure on an action for the wages from which Employees Must Plead and Prove That to pay wages due at the time of his resig- the penalties arise.”Plaintiff raised several A Union Breached the Duty of Fair nation, based upon disputed wages for arguments to support the position that Representation in Order to Sue for overtime and bereavement leave, also section 203 represented an exception to Violation of a CBA Without Exhaustion failed. The court found that the CBA con- the default one-year statute of limitations of Grievance Procedures tained a clear six-month statute of limita- for an action to recover a statutory penal- Soremekun v. Thrifty Payless, Inc., 509 F.3d tions for wage claims, and more than six ty regardless of whether there was also a 978 (9th Cir. 2007) months had passed since plaintiff’s claim for the wages from which the Plaintiff Adediji Soremekun, a phar- claims for unpaid wages had accrued. penalties arose. macist, filed suit seeking wages for over- The appellate court found plaintiff’s Absent a Claim for Wages, the Statute time work and bereavement leave, as well arguments unpersuasive concluding that of Limitations for Waiting Time as penalties for failure to pay wages due at for suits seeking penalties alone—as dis- Penalties Is One Year the time of his resignation, pursuant to tinct from a suit seeking penalties and the California Labor Code. Plaintiff’s McCoy v. Super. Ct. (Kimco Staffing Servs., underlying wages—the objective of sec- employment was governed by a collective Inc.), 157 Cal. App. 4th 225 (2007) tion 203, the legislative intent, and the bargaining agreement (CBA), which con- McCoy was the lead plaintiff in a common sense meaning of the section’s tained mandatory grievance procedures putative class action seeking waiting time language dictated a one-year statute of and a six-month statute of limitations for penalties under California Labor Code limitations. Because of this finding, the wage claims. section 203 for defendant’s alleged failure court did not address plaintiff’s addition- The district court granted the to timely pay final wages on completion of al contention that the unfair competition employer’s motion for summary judg- temporary work assignments in violation law should extend the statute of limita- ment, and the Ninth Circuit Court of of sections 201 and 202. The complaint tions from three years to four years. Appeals affirmed. Under section 301 of alleged that, instead of paying plaintiffs

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Volume 22, No. 2 California Labor & Employment Law Review 29 complaint) and heard early (within 30 County Local Hospital District.26 Dr. Kibler days after the motion is filed).12 Filing the was a physician who, after a series of hos- Anti-SLAPP in motion stays discovery.13 Moreover, the tile encounters with staff members, was plaintiff may not attempt to moot, mini- brought before the hospital’s peer review Employment mize or evade the motion by amending committee and summarily suspended.27 the complaint.14 If the motion succeeds, Following his termination, he brought the prevailing defendant is awarded attor- suit on a variety of theories, including Law neys’ fees and costs.15 And the plaintiff defamation, abuse of process, and inter- continued from page 1 may not avoid an award of fees by dis- ference with his practice of medicine.28 missing the action before a ruling on the The hospital filed an anti-SLAPP motion, 16 person in furtherance of the motion. An order granting or denying arguing that the hospital’s peer review 29 person’s right of petition or free an anti-SLAPP motion is immediately process was an “official proceeding.” The 17 speech under the United States appealable, and such an appeal stays the trial court granted the motion, and the 18 or California Constitution in case. All of these procedural aspects decision was affirmed both by the court 30 connection with a public issue make the motion an especially attractive of appeal and the supreme court. shall be subject to a special and potent tactic for defendants. In concluding that the review process motion to strike, unless the court fell within the anti-SLAPP statutes, the ANTI-SLAPP EXEMPTIONS ENACTED IN determines that the plaintiff has supreme court emphasized the “compre- 2004 established a probability that the hensive scheme” by which the Business and 9 Professions Code incorporates the peer plaintiff will prevail on the claim. Anti-SLAPP motions became so pop- review process into the overall process for ular that they created a new problem: The the licensure of California physicians.31 It An anti-SLAPP analysis thus has two statute designed to address abusive SLAPP also emphasized that the hospital’s deci- prongs: First, the defendant must show actions was, itself, being abused.19 In sions resulting from peer review proceed- that a cause of action arises from an “act response, the Legislature enacted Section ings are subject to judicial review by in furtherance of” the defendant’s consti- 425.17, effective 2004, to curb the “disturb- administrative mandate.32 Most notably, the tutional right of petition or free speech. ing abuse of Section 425.16.”20 This statute court rejected arguments that “official pro- Second, if that showing is made, then the exempts from anti-SLAPP motions certain ceedings authorized by law” were limited to burden shifts to the plaintiff to demon- actions “brought solely in the public inter- proceedings before governmental entities, strate, with admissible evidence, a proba- est or on behalf of the general public,”21 and and thus, opened the door for other bility of success on the merits. certain actions brought against “a person employee-review proceedings to qualify.33 The anti-SLAPP statute originally engaged in the business of selling or leasing gave three examples of what was meant goods or services” (i.e., a commercial THE PUBLIC ISSUE IN EMPLOYMENT by an “act in furtherance” of the constitu- 22 speech exemption). These exemptions, DISPUTES tional rights of petition or free speech, however, are subject to certain conditions i.e., any oral or written statement: and – adding another layer of complexity – Even if the statements at issue are not (1) made before a legislative, executive or several exceptions.23 Furthermore, the made in an official proceeding, the anti- judicial proceeding, or any other official denial of an anti-SLAPP motion based on SLAPP statutes may apply if the state- proceeding authorized by law; (2) made a statutory exemption is not appealable.24 ments are made “in connection with a in connection with an issue under con- Because anti-SLAPP precedent developed public issue or an issue of public inter- sideration or review by a legislative, exec- for over a decade before these exemptions est.”34 At first blush, whether an issue is of utive or judicial body, or any other official took effect, reliance on pre-2004 cases public interest may appear deceptively proceeding authorized by law; and must be evaluated carefully in light of the simple. Courts and commentators some- (3) made in a place open to the public or statutory changes. times note that “judges and attorneys a public forum in connection with an will, or should, know a public concern issue of public interest.10 EMPLOYMENT-RELATED PROCEEDINGS when they see it.”35 But the public issue In 1997, the anti-SLAPP law was AUTHORIZED BY LAW requirement raises particular questions in amended to add a fourth, catch-all, cate- the context of employment law. Litigants Statements made “in connection with gory: “any other conduct in furtherance are apt to disagree not only on whether an issue under consideration or review by of the exercise of the constitutional right an issue is “public,” but also on the . . . any other official proceeding author- of petition or the constitutional right of threshold framing of the issue. For exam- ized by law” are subject to anti-SLAPP free speech in connection with a public ple, when a supervisor at a public univer- protection.25 Investigations into workplace issue or an issue of public interest.” The sity is accused of abusive behavior, is the violence or sexual harassment often raise 1997 amendment also added language to issue whether one supervisor was abusive the issue of whether the investigation is an emphasize that the statute was to be “con- or does it relate to the broader issue of 11 “official proceeding authorized by law” strued broadly.” supervision throughout the university within the meaning of the statute. Procedurally, anti-SLAPP motions system?36 When an employee reports sex- A recent example in this area comes are filed early in the life of the litigation ual harassment by a supervisor, is the from the California Supreme Court’s (generally within 60 days of service of the issue limited to one supervisor’s alleged decision in 2006 in Kibler v. Northern Inyo

30 California Labor & Employment Law Review Volume 22, No. 2 conduct or does a larger issue arise nel action.”45 The court of appeal, howev- tant issue to a substantial segment of the regarding misconduct within the entire er, was unwilling to sever the statements public, including the University’s current company?37 about the principal’s retirement plans students, its alumni, potential recruits, California decisions emphasize that from the context giving rise to those and other schools in the league. The court the issue must be narrowly drawn with an statements, that is, the incidents of cam- also rejected the coach’s argument that emphasis on the speaker’s specific con- pus violence.46 “While it is possible to although the fact of his employment ter- duct, rather than some “amorphous pub- imagine an instance in which a school mination may have been a public issue, lic interest.”38 One case provided the administrator’s retirement plans would “the reasons for his termination were pri- following analogy to underscore that the be of purely private interest,” that was not vate and confidential matters.”50 The issue should be narrowly drawn: the case in Morrow, where the statements court viewed this as a distinction without were made in response to the principal’s a difference, noting that “it is difficult to Blackacre sells a house to handling of “serious incidents” that indis- imagine a greater ‘closeness’ between the Whiteacre, and Whiteacre sues, putably were legitimately newsworthy topic of the public interest (the termina- claiming defendant misrepre- matters of public interest.47 tion) and the challenged statements (the sented the square footage. A similar recent case, McGarry v. reasons for the termination).”51 Whiteacre brings a special University of San Diego, involved state- By contrast, some cases in the motion to strike, claiming his ments surrounding a private university’s employment context simply fail to attain a speech involves a matter of pub- termination of its football coach.48 The required level of public significance to per- lic interest, because millions of coach sued the university and two of its suade a court that a “public issue” is at Americans live in houses and officials for defamation based on state- stake. For example, in Du Charme v. buy and sell houses. [Plaintiff] ments about his termination published in International Brotherhood of Electrical correctly suggests that applying the San Diego Union Tribune.49 The Workers, a former employee sued for the anti-SLAPP statute in such a defendants successfully brought an anti- wrongful termination and defamation case would be absurd.39 SLAPP motion and the coach appealed. after the employer (a union) posted an The court recognized that the coach had explanation of the termination on its web- In the employment context, courts held a high-profile position in the com- site—that he had been “removed from generally reject attempts to implicate munity and his abrupt termination in the office for financial mismanagement.”52 The broad social issues, such as “negligent middle of a successful season and on the trial court denied the employer’s anti- supervision generally” or “sexual harass- eve of an important game was an impor- SLAPP motion, finding that the statement ment at the workplace,” instead preferring to focus on the specific conduct and state- ments at hand.40 Nonetheless, a broader characterization may prevail in some cases, as in the recent decision of Morrow Anti-SLAPP Update v. Los Angeles Unified School District.41 In the employment context, nearly all reported anti-SLAPP decisions In Morrow the Los Angeles Times have arisen when employer-defendants bring the motion. After this article reported that an inner-city high school went to print, a new case issued showing how anti-SLAPP laws can be used by principal would be replaced after criticism former employees against employers. In Nygård, Inc. v. Uusi-Kerttula, __ Cal. by school district officials over his han- App. 4th __ (Feb. 1, 2008), after Nygård terminated Mr. Uusi-Kerttula’s dling of several student brawls attributed employment, he gave a negative interview about his “horrible” work experi- to racial tensions.42 The article quoted two ences at Nygård to a Finnish magazine, prompting Nygård to sue its former superintendents explaining that the prin- employee for breach of contract, defamation and other claims. The trial court cipal would be replaced six months before granted the former employee’s anti-SLAPP motion, and the court of appeal his already-planned retirement, noting affirmed. The court found that the published interview statements were made that the planned date for his retirement in a public forum and involved a highly visible public figure and issues of “did not fit with the district’s needs” and public interest. Apparently the owner of Nygård – a prominent businessman would be “accelerated” based on his han- and celebrity of Finnish extraction – is of great public interest among the dling of the incidents.43 The principal Finnish public, which the court found sufficient to satisfy the first prong. On sued, alleging that the superintendents’ the second prong, the court found that the published statements did not vio- statements to the press defamed him and late the employee’s confidentiality agreement because the statements con- invaded his privacy. The trial court grant- cerned only his personal experiences working for the company and not ed the defendants’ anti-SLAPP motion sensitive economic information (e.g., trade secrets or financial data), and and dismissed the case.44 Nygård failed to make a prima facie case establishing the falsity of the state- In attacking the anti-SLAPP ruling ments because the statements were rhetorical hyperbole. Although the facts on appeal, the principal argued that “the of Nygård are somewhat unique, employers should be aware of this opinion as challenged statements did not concern former employees no doubt will rely on it when defending against defamation the student violence, but merely revealed claims. In an unpublished decision in a companion appeal, the employee was matters of private interest—his retire- awarded $45,000 in attorney fees for successfully bringing the motion. ment plans and the reasons for a person-

Volume 22, No. 2 California Labor & Employment Law Review 31 posted on the website was neither a matter if the statements at issue concerned a 15. Cal. Code Civ. Proc. § 425.16(c). In of public interest nor made in connection topic of widespread public interest, the 1993 this section was amended to with an official proceeding. The employer public-issue criteria might be satisfied. allow attorneys’ fees and costs to a appealed, but the court of appeal affirmed, The boom in both employment litigation plaintiff who defeats an anti-SLAPP concluding that the statement did not con- and anti-SLAPP decisions ensures that motion if the motion is “frivolous or cern a public issue because it was “uncon- these areas will continue to overlap. is solely intended to cause unneces- nected to any discussion, debate or Becoming and remaining conversant in sary delay.” controversy.”53 The statement on the web- California’s anti-SLAPP law is essential 16. Liu v. Moore, 69 Cal. App. 4th 745, site did not urge members of the union to for labor and employment litigators. 749–53 (1999). take a position on the matter, but rather, 17. Cal. Code Civ. Proc. §§ 425.16(i); was a “mere informational statement.”54 As ENDNOTES 904.1(a)(13). Originally only the such, protecting the statement “would in granting of an anti-SLAPP motion 1. Cal. Code Civ. Proc. §§ 425.16, no way further the statute’s purpose of was appealable. But in 1999 the 425.17, 425.18. encouraging participation in matters of Legislature equalized appellate rights 2. James S. Moneer, Two SLAPPS Don’t public significance.”55 by amending the statute to provide Make a Right: But They Do Clog Our Both Du Charme and Rivero v. Am. that the denial also was appealable. Courts, 20:1 Cal. Litig. 16, 21 (2007); Federation of State, County and Municipal Note also that an anti-SLAPP ruling Sharon J. Arkin, Bringing California’s Employees, AFL-CIO (discussed in end- is appealable in federal court too Anti-SLAPP Statute Full Circle, 31 note 55) peripherally implicate the topic under the collateral order doctrine. W.St.U.L.Rev. 1, 2 (Fall 2003). of organized labor, because in both Zamani v. Carnes, 491 F. 3d 990, 994 3. What follows is a cursory overview of instances the employers were unions. As (9th Cir. 2007). the origins and development of such they raised the question whether 18. Varian, 35 Ca1. 4th at 188–91; but California’s anti-SLAPP law. Readers involvement of a union invokes First see Novartis Vaccines & Diagnostics, should carefully review the statutes, Amendment rights per se. The argument Inc. v. Stop Huntingdon Animal cases, law review articles, and prac- raised by the unions in those cases drew Cruelty USA, Inc., 143 Cal. App. 4th tice guides for more detailed analysis. from analogy to longstanding federal law 1284, 1302 (2006) (stay does not pre- E.g., 1 Kiesel, Lichtman, Matthai & that recognizes the public nature of labor vent trial court from ruling on pre- Seabolt, Cal. Civ. Proc. Before Trial, disputes, applying the heightened “actual liminary injunction). chapter 13 (Matthew Bender); 5 malice” standard to labor speech, ostensi- 19. Success in anti-SLAPP motions also Witkin, Cal. Proc. §§ 962–964; Weil bly to “encourage free debate on issues has led to litigation by victorious defen- & Brown, Civ. Proc. Before Trial, dividing labor and management.”56 The dants—typically for malicious prose- chapter 7. courts rejected the argument, noting that cution or abuse of process—against the 4. Pring & Canan, Strategic Lawsuits if organized labor inherently implicated SLAPPer and the SLAPPer’s attorneys. Against Public Participation, 35 Soc. the public-issue prong, “discussion of These SLAPPback lawsuits are also Problems 506 (1988). nearly every workplace dispute would subject to anti-SLAPP motions. 5. Wilcox v. Superior Court, 27 Cal. App. qualify as a matter of public interest.”57 To Recognizing that SLAPPbacks are “dis- 4th 809, 815 (1994). avoid that result, the court of appeal in tinguishable in character and origin” 6. Id. at 816. Rivero concluded that “unlawful work- than ordinary malicious prosecution 7. Cal. Code Civ. Proc. § 425.16(a). place activity below some threshold level claims, in 2005 the Legislature enacted 8. Varian Med. Systesms, Inc. v. Delfino, of significance is not an issue of public Code of Civil Procedure section 425.18, 35 Ca1.4th 180, 193 (2005). interest, even though it implicates a public which outlines special rules for anti- 9. Cal. Code Civ. Proc. § 425.16(b). policy.”58 Also worth noting is that in SLAPP motions in SLAPPbacks. In 10. Id. at § 425.16(e)(1), (2), & (3). Rivero, the defendant argued that the mat- particular, there are differences regard- 11. Id. at § 425.16(a) (last sentence); ter was sufficiently significant because the ing the timing of the motion; the dis- Briggs v. Eden Council for Hope & plaintiff worked at a publicly financed covery stay; the recoverability of fees Opportunity, 19 Ca1. 4th 1106, 1135 institution.59 In rejecting that argument, and costs; and the appellate rights. See (1999) (Baxter, J., concurring and the court noted that without a threshold Cal. Code Civ. Proc. § 425.18. dissenting). of significance “the theft of a single pen- 20. Cal. Code Civ. Proc. § 425.17(a). 12. Cal. Code Civ. Proc. § 425.16(f). cil” would amount to a public issue.60 21. Id. at § 425.17(b). 13. Id. at § 425.16(g) (also noting that a The procedural advantages of 22. Id. at § 425.17(c). plaintiff may overcome the discovery California’s anti-SLAPP law are so signifi- 23. Id. at § 425.17(b)(1–3), (c)(1–2), stay with a showing of good cause). cant that any employee or employer (d)(1–3). This discovery freeze, however, does involved in a lawsuit should carefully 24. Id. at § 425.17(e). not apply in federal court. Metabolife consider how a special motion to strike 25. Id. at § 425.17(e)(1)-(2). Int’l, Inc. v. Wornick, 264 F.3d 832, 846 on anti-SLAPP grounds may affect the 26. 39 Ca1. 4th 192 (2006). (9th Cir. 2001). litigation. Even where an employee was 27. Id. at 194. 14. Sylmar Air Conditioning v. Pueblo not in the public eye, if the employee’s 28. Id. at 195. Contracting Servs., Inc., 122 conduct could affect a large number of 29. Id. Cal.App.4th 1049, 1055 (2004). people beyond the direct participants or 30. Id.

32 California Labor & Employment Law Review Volume 22, No. 2 31. Id. at 196. 39. Consumer Justice Center v. Trimedica extent it implied that to qualify as an 32. Id. at 197. Int’l, Inc., 107 Cal. App. 4th 595, 601 official proceeding the proceeding 33. Id. at 198; see also Vergos v. McNeal, (2003). must be one that exercises govern- 146 Cal. App. 4th 1387, 1399 (2007) 40. Rivero, 105 Cal. App. 4th at 925; mental power. (resolution process for sexual harass- Olaes, 135 Cal.App.4th at 1510. 52. 110 Cal. App. 4th 107, 113–14, 119 ment claims constitutes “official pro- 41. 149 Cal. App. 4th 1424. (2003). ceeding authorized by law”). Vergos 42. Id. at 1429. 53. Id. at 118. stands in contrast to Olaes v. 43. Id. 54. Id. Nationwide Mut. Ins. Co., 135 Cal. 44. Id. 55. Id. Rivero, 105 Cal. App. 4th 913, is a App. 4th 1501 (2006), a pre-Kibler 45. Id. at 1436–37. similar case. In Rivero , a supervisor decision in which the court of appeal 46. Id. of a staff of eight custodians brought concluded that a sexual harassment 47. Id. at 1436. According to the Los suit against a union that had pub- dispute resolution proceeding did Angeles Times account: “The first lished three documents containing not constitute an “official proceed- brawl involved about 100 students allegations that he had engaged in ing” because it was non-governmen- near the cafeteria. Three students abusive behavior towards employees. tal in nature. Id. at 1508. were hurt. In the second, more than Id. at 916–17. The court concluded 34. Cal. Code Civ. Proc. § 425.16(e). 100 [B]lack and Latino students got that the entire matter fell beneath a 35. Du Charme v. Int’l Bhd. of Elec. into another lunchtime fight that threshold level of significance Workers, 110 Cal.App.4th 107, 117 officials said had links to a gang dis- required for the publications to con- (2003). pute.” Id. stitute a public issue, within the 36. Rivero v. Am. Federation of State, 48. 154 Cal. App. 4th 97, 102–03 (2007). meaning of the anti-SLAPP statute. County and Municipal Employees, 49. Id. Id. at 924. AFL-CIO, 105 Cal. App. 4th 913, 925 50. Id. at 109. 56. Linn v. United Plant Guard Workers of (2003) (rejecting the broad charac- 51. Id. at 110; see also Fontani v. Wells Am., 383 U.S. 53, 62 (1966). terization of the issue). Fargo Investments, 129 Cal.App.4th 57. Rivero, 105 Cal. App. 4th at 924. 37. See, e.g., Olaes v. Nationwide Mut. 719, 725 (2005) (a form submitted to 58. Id. Ins. Co., 135 Cal. App. 4th 1501 the National Association of 59. Id. at 924–25. (2006); Carpenter v. Jack in the Box Securities Dealers fell within the 60. Id. By contrast, see Monterey Plaza Corp., 2005 Cal. App. Unpub. LEXIS anti-SLAPP statute, both as a public Hotel v. Hotel Employees & Restaurant 3679, *10-*11. issue and as an “other proceeding Employees, 69 Cal. App.4th 1057 38. Weinberg v. Feisel, 110 Cal. App. 4th authorized by law”). Fontani was dis- (1999) (two housekeepers allegedly 1122, 1132–33 (2003). approved of by the Supreme Court in fired for meeting to discuss forming a Kibler, 39 Ca1.4th at 199 n.5, to the union constituted a public issue).

Volume 22, No. 2 California Labor & Employment Law Review 33 MCLE Self-Assessment Test

MCLE CREDIT Make checks payable to The State Bar of California. You will receive Earn one hour of general MCLE credit by reading “The Employment the correct answers with explanations and an MCLE certificate Lawyer’s Guide to California Anti-SLAPP Law” and answering the within six weeks. Please include your bar number and e-mail. questions that follow, choosing the one best answer to each question. Mail your answers and a $25 processing fee ($20 for Labor and CERTIFICATION Employment Law Section members) to: The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the Labor and Employment Law Section • State Bar of California rules and regulations of the State Bar of California governing mini- 180 Howard Street mum continuing education. This activity has been approved for San Francisco, CA 94105 minimum education credit in the amount of one hour.

Name ______Bar Number ______E-mail ______

1) To succeed on an anti-SLAPP motion, the defendant bears the burden 11) If the anti-SLAPP motion to strike succeeds, the prevailing defendant is to demonstrate, with admissible evidence, that the suit has no probabil- awarded attorneys’ fees and costs. ity of success on the merits. ❏ True ❏ False ❏ True ❏ False 12) An order granting or denying an anti-SLAPP motion is not immediate- 2) The favored causes of action in SLAPP lawsuits are defamation, inter- ly appealable. ference with prospective economic advantage, nuisance, and infliction ❏ True ❏ False of emotional distress. ❏ True ❏ False 13) Effective 2004, Code of Civil Procedure section 425.17 exempts from anti-SLAPP motions certain actions “brought solely in the public inter- 3) In effect since 1993, California’s anti-SLAPP statute is Code of Civil est or on behalf of the general public,” as well as certain actions brought Procedure section 425.16. against “a person engaged in the business of selling or leasing goods or ❏ True ❏ False services.” ❏ True ❏ False 4) Under Code of Civil Procedure section 425.16, a special motion to strike may be brought by a defendant who is being sued as a result of an 14) The exemptions of Code of Civil Procedure section 425.17 are not sub- act conducted “in furtherance of the [defendant’s] right of petition or ject to any exceptions. free speech under the United States or California Constitution in con- ❏ True ❏ False nection with a public issue . . . .” ❏ True ❏ False 15) Given the enactment of Code of Civil Procedure section 425.17, pre- 2004 cases must be evaluated carefully. 5) To succeed on an anti-SLAPP motion, the defendant must show that a ❏ True ❏ False cause of action arises from an act in furtherance of the defendant’s con- stitutional right of petition or free speech. 16) A private hospital’s peer review process does not constitute an “official ❏ True ❏ False proceeding authorized by law,” because it is not a government proceeding. ❏ True ❏ False 6) The anti-SLAPP statute gives the following four examples of what Code of Civil Procedure section 425.16 means by the phrase “act in furtherance”: 17) In the employment context, for determining whether or not an anti- (a) any oral or written statement made before a legislative, executive or SLAPP motion should be granted, the court generally broadly examines judicial proceeding, or any other official proceeding authorized by law; the issue of statements made “in connection with a public issue or an (b) any oral or written statement made in connection with an issue being issue of public interest,” looking beyond the specific conduct of the per- considered or reviewed by a legislative, executive or judicial body, or any son who made the statements. ❏ ❏ other official proceeding authorized by law; (c) any oral or written state- True False ment made in a place open to the public or a public forum in connection 18) In a 2007 published opinion, the state court of appeal held that, for with an issue of public interest; and (d) any other conduct in the further- anti-SLAPP purposes, a plaintiff-principal’s retirement plan was a mat- ance of the exercise of the constitutional right of petition or right of free ter of public interest where two superintendents of defendant-school speech in connection with a public issue or an issue of public interest. district had told the press that the principal’s planned retirement would ❏ ❏ True False be accelerated because of how the principal handled student fights 7) As amended in 1997, the anti-SLAPP statute must be construed narrowly. attributed to racial tensions. ❏ ❏ ❏ True ❏ False True False

8) An anti-SLAPP motion to strike a lawsuit is made in the latter stages of 19) The denial of an anti-SLAPP motion was overturned where a former litigation. employee sued the employer for wrongful termination and defamation ❏ True ❏ False after the employer posted on its website a statement that the employee was “removed from office for financial mismanagement.” 9) In California superior court, filing an anti-SLAPP motion does not stay ❏ True ❏ False discovery. ❏ True ❏ False 20) Defendant-union’s publication of three documents containing allega- tions that plaintiff-supervisor was abusive toward eight custodian 10) A plaintiff may not attempt to avoid a defendant’s anti-SLAPP motion employees was held to constitute a public issue for anti-SLAPP purposes. by amending the plaintiff’s complaint. ❏ True ❏ False ❏ True ❏ False

34 California Labor & Employment Law Review Volume 22, No. 2 Phil Horowitz is past Chair and current Board member of the California Message from the Employment Lawyers Association. He volunteer teaches trial advocacy at Chair the University of San Francisco and Stanford Law Schools. Mr. Horowitz has his own San Francisco law firm, By Phil Horowitz representing employees.

Education is our Section’s mission. This year’s conference promises to be Section is presenting a series of lunchtime I’m happy to report that our Section has a even better than ever. There will be the seminars on disability discrimination. lot of great educational events coming up. usual fast-paced annual update, and then There will be a seminar on discovery in Our Section’s 14th Annual Labor and a whole selection of concurrent sessions. disability discrimination cases on May 28 Employment Public Sector Conference Topics range from bringing and (in San Francisco) and on June 4 (in Los will be held at the Radisson Hotel in defending against writs to regulating Angeles). That discovery seminar will be Sacramento on Friday, April 11. Our speech in the government workplace, from followed up with a seminar on using Public Sector Conference is without a wage and hour law in the public sector to experts in disability discrimination cases doubt the premier educational confer- hot issues in collective bargaining, from on July 16 (in Los Angeles) and July 23 (in ence each year on California public sector modifying employee and retiree health San Francisco). labor and employment law. care benefits to . . . well, you get the idea. There are also other short seminars A recent survey of the 7,000 or so By the way, our Section proudly coming up on other topics. We’ll be pre- members of the State Bar’s Labor and authors the definitive treatise California senting a seminar on wage and hour Employment Law Section shows that 42 Public Sector Labor Relations, published issues in the retail industry in Los Angeles percent of us do public sector work as by Matthew Bender. If you practice in this on May 7. On June 9, there will be a sem- part of our practice. Indeed, a quarter of area of law and don’t already own this inar in San Francisco on the legal path in us do nothing but public sector work. book, you should order your copy today. dealing with emotionally disturbed Whether you already practice public Practitioners in the field call this book employees. We are presenting a seminar sector law, or you are just thinking about “essential.” on sexual harassment prevention training getting started, I would like to personally Our Section also has a number of on July 11 in Newport Beach. and heartily invite you to our Section’s new seminars coming up that you should The Labor and Employment Section 14th Annual Labor and Employment know about. Most of us handle disability puts on great conferences and seminars. Public Sector Conference. discrimination issues. This year, our We look forward to seeing you at one soon.

From the Editors EDITORIAL POLICY

We would like the Law Review to reflect the diversity of the Section’s membership in the articles and columns we pub- lish. We therefore invite members of the Section and others to submit articles and columns from the points of view of employees, unions, and management. Our resources are you, the reader, so we count on you to provide us with the variety of viewpoints representative of more than 6,000 members. In addition, although articles may be written from a particular viewpoint (i.e., management or employee/union), whenever possible, submitted articles should at least address the existence of relevant issues from the other perspective. Thank you for all of your high quality submissions to date, and please…keep them coming! Please e-mail your submission to Section Coordinator Susan Orloff at [email protected].

The Review reserves the right to edit articles for reasons of space or for other reasons, to decline to print articles that are submitted, or to invite responses from those with other points of view. We will consult with authors before any signifi- cant editing. Authors are responsible for shepardizing and proofreading their submissions. Articles should be no more than 2,500 words. Please follow the style in the most current edition of The Bluebook: A Uniform System of Citation and put all citations in endnotes.

Volume 22, No. 2 California Labor & Employment Law Review 35 Labor & Employment Law Section Executive Committee 2007-2008

Phil Horowitz, Chair MEMBERS Noah Lebowitz Jo Anne Frankfurt Duckworth Peters Lebowitz LLP Mediator and Trainer Law Offices of Phil Horowitz Suzanne M. Ambrose San Francisco San Francisco State Personnel Board San Francisco Sacramento Theodora Lee Andrew H. Friedman Lynne S. Bassis Littler Mendelson Helmer & Friedman LLP San Francisco Bassis Mediation Group Venice Pasadena Karen V. Clopton, Vice Chair Emily Prescott Alan S. Hersh California Department Barbara J. Chisholm Renne Sloan Holtzman Sakai LLP of Corporations Altshuler Berzon LLP San Francisco School and College Legal Services San Francisco San Francisco Santa Rosa Michael Whitaker David M. de Rubertis California Department of Justice Toni J. Jaramilla The de Rubertis Law Firm Los Angeles Law Offices of Toni Jaramilla Woodland Hills Los Angeles Timothy G. Yeung Patricia C. Perez, Secretary Paul C. Glusman Renne Sloan Holtzman Sakai LLP Lois M. Kosch Puente International Law Offices of Paul Glusman Sacramento Wilson Petty Kosmo & Turner LLP Consulting, Inc. Berkeley San Diego San Diego Leonid Zilberman Wilmer J. Harris Wilson Petty Kosmo & Turner LLP Schonbrun DeSimone Seplow Tony Skogen San Diego Harris & Hoffman Littler Mendelson Pasadena ADVISORS Los Angeles Bruce A. Barsook, Treasurer Henry J. Josefsberg Arnie R. Braafladt Henry J. Josefsberg, Esq. Rosario M. Tobias Liebert Cassidy Whitmore California School Employees Long Beach Office of the City Attorney Association Los Angeles Los Angeles San Jose Carol Koenig Wylie, McBride, Platten Susan Orloff Cara M. Ching-Senaha & Renner State Bar Section Coordinator San Jose Jackson Lewis LLP San Francisco San Francisco Wendy P. Rouder, Immediate Trudy M. Largent Past Chair San Bernardino Community David J. Duchrow Pamela Wilson Arbitration & Mediation College District Law Office of David J. Duchrow State Bar Director of Sections San Francisco San Bernardino Los Angeles San Francisco

State Bar Education Foundation Non-Profit Org. Labor and Employment Law Section U.S. Postage 180 Howard Street PAID San Francisco, CA 94105-1639 Documation www.calbar.ca.gov/laborlaw

36 California Labor & Employment Law Review Volume 22, No. 2