Labor and Employment eNews

Under Labor Code section 1138, no labor organization involved in a labor dispute may be held liable for the unlawful acts of individual officers, members, or agents, “except upon clear proof of actual participation in, or actual authorization of those acts.” The trial court improperly denied a union’s anti-SLAPP motion because the union’s picketing conduct was protected activity and the employer failed to proffer evidence that would clearly prove the union participated in or authorized various unlawful actions by picketers. Read more

California’s Private Attorneys General Act does not violate the separation of powers doctrine by allowing private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion. PAGA is not meaningfully distinguishable from comparable qui tam statutes outside the employment context. Read more

Spring is a time of rejuvenation.  Vines spurt new growth, flowers bloom, graduations and weddings are celebrated. This Spring feels particularly hopeful.  On May 6, 2022, our Section will host the 2022 Public Sector Conference in San Francisco.  This will be our first hybrid conference, and the first educational event at which we will have in-person attendance since 2019.  It has been a long two plus years, and while I believe we will continue to incorporate virtual conferences in our regular… Read more

The May 2022 issue of our Section’s California Labor & Employment Law Review will lead off with an article by Michael Robbins and Scott Barer on “Clear and Convincing or Preponderance of the Evidence – What’s a Poor Workplace Investigator to Do?” The piece will address the recent California Supreme Court decision in Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022), which set forth the proper method for presenting and evaluating a claim of whistleblower retaliation under Cal. Lab. Code § 1102.5 Read more

Arbitration agreement was procedurally unconscionable because it was presented to Nunez as a nonnegotiable condition of employment, Nunez cannot read English, and the agreement was not explained to him. Read more

A police officer left his service firearm in his personal vehicle after work. The gun was stolen from the vehicle and shortly thereafter used to kill plaintiff’s son. Summary judgment for the city on plaintiff’s wrongful death claim reversed because, under the doctrine of respondeat superior, a police officer’s negligent handling of a firearm is a foreseeable result of the enterprise of law enforcement. Read more

Zamora v. Security Industry Specialists (CA6, filed 9/30/21, pub. ord. 10/29/21 H044008) FEHA Disability Discrimination, Retaliation, Wrongful Termination McDonnell Douglas burden-shifting framework applied to plaintiff’s disability discrimination claim because he presented no direct evidence of discrimination. Triable issue of material fact existed on plaintiff’s disability discrimination claim because a jury could find that the empl Read more

The upcoming November issue of our Section’s Labor & Employment Law Review leads off with an article entitled “Law Enforcement Labor Reform Proposals” by members of the Law Enforcement Study Group, which was formed after the 2020 George Floyd killing to study police reforms. Read more

The holidays are a time to show our gratitude, and, in that spirit, I want to highlight the work of a couple of this Section’s subcommittees. First, the New Employment Practitioner Conference Read more

Plaintiffs could not be compelled to arbitrate representative claims for civil penalties under the Private Attorneys General Act of 2004 because the state, which owns the claims, was not a party to the arbitration agreements and did not ratify them, nor did the plaintiffs agree to arbitrate the claims after they became representatives of the state. Read more