The Employment Lawyer's Guide to California Anti
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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 Name ____________________________________________________________________________ State Bar Number ________________________________________________________________ Firm/Company __________________________________________________________________ Address __________________________________________________________________________ City, State, Zip ____________________________________________________________________ Telephone ______________________________ Fax__________________________________ E-mail ____________________________________________________________________________ ENROLLMENT STATUS ❑ Attorney [ATY] . .$75 ❑ Out-of-State Attorney [OSA] . .$75 ❑ Judge/Neutral [JDG] . .$75 ❑ Non-Attorney [ONA] . .$75 ❑ Law Student (not Bar Member) [LS] . .FREE PRACTICE AREA COMMITTEE INTEREST ❑ Employer ❑ Education [ED] ❑ Neutral ❑ Public Sector [PS] ❑ Union ❑ Internet [INT] ❑ Plaintiff ❑ Legislation [LE] ❑ Law School Writing Competition [LC] ❑ Membership [ME] ❑ Program [PG] ❑ Publications [PU] Please make check payable to the State Bar of California, and send this form with your check or credit card information to Section Enrollments, State Bar of California, 180 Howard Street, San Francisco, CA 94105-1639. Fax (415) 538-2368 (credit card enrollments only). CREDIT CARD INFORMATION I authorize the State Bar of California to charge my Labor & Employment Section mem- bership to my VISA/MasterCard account. (No other credit card will be accepted.) Account # ______________________________ Expiration____________________________ Cardholder Name ________________________ Signature ____________________________ 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