BLS Reports Union Membership Decline In 2009

By Christopher S. Andre

On January 22, 2010, the U.S. Department of Labor Bureau of Labor Statistics issued a press release reporting that union membership continued to decline among persons employed in the private sector but increased among employees employed by the federal, state, or local governments. The following are some highlights:

Private employer union membership declined from approximately 16.1 million to approximately 15.3 million, a drop of approximately 771,000. Approximately 12.3% of the private sector workforce is unionized nationwide. In 1983, approximately 20.1% of the private sector workforce was unionized.

Government employer union membership increased from approximately 7.8 million to approximately 8.6 million, an increase of approximately 800,000. Approximately 37.4% of the government workforce is unionized nationwide.

In California, combined private employer and government employer union membership declined from approximately 2.7 million to approximately 2.4 million.

Click here to view and download the BLS press release.

Employer Tip Of The Week: Be Sure To Post Applicable Wage Orders Where Employees Can Read Them Easily

By Christopher S. Andre and Scott K. Dauscher

An employer's obligations to employees regarding many working conditions are governed not only by the California Labor Code but also by Wage Orders promulgated by the California Industrial Welfare Commission. Some Wage Orders are industry specific; some Wage Orders are occupation specific. Thus, an employer's workforce might be governed by more than Wage Order.

Each of the 17 Wage Orders contain numerous requirements an employer must comply with. For example, among other things, each of the 17 Wage Orders regulates when an employer must pay non-exempt employees premium pay (i.e., overtime) and when rest periods and meal periods must be provided. Click here to view and download the applicable Wage Order(s).

Each of the 17 Wage Orders require also that the employer subject to the Wage Order post the Wage Order "in an area frequented by employees where it may be easily read during the workday." If the location of the work or other circumstances make it impractical do so, the employer "shall keep a copy of [the applicable] order and make it available to every employee upon request."

The posting of Wage Orders is not only a requirement; it can be advantageous for an employer to do so. For example, if an employer posts the applicable wage order(s), it would be more difficult for a disgruntled employee to credibly claim he or she did not know of his or her rights to take required meal and rest periods.

Will Scott Brown's Senate Victory In Massachusetts Affect Pending Federal Employment Legislation?

By Christopher S. Andre and Scott K. Dauscher

On Tuesday, January 19, 2010, Republican Scott Brown defeated Democrat Martha Coakley in a special election to fill the United States Senate seat previously held by Democrat Edward Kennedy for 46 years until his passing on August 25, 2009.

As a consequence of Scott Brown's remarkable victory in a Democratic stronghold, Republicans now hold 41 seats in the Senate. Although still in the minority, those 41 seats are sufficient to enable the Senate Republicans to use the filibuster to effectively block legislation the Senate Republicans oppose.

A number of commentators have observed that Scott Brown's election puts in jeopardy the controversial health care reform legislation favored by Congressional Democrats.

Other controversial pending federal legislation that would, if enacted, affect California employers may also be in jeopardy, particularly the Employee Free Choice Act, which would make it significantly easier for unions to unionize workplaces. Among other things, the Employee Free Choice Act would dispense with secret ballot elections as a way for employees to indicate whether they do or do not want to be represented by a union.

Machinists Union Announces Creation of a Union of the Unemployed

By Thomas A. Lenz and Christopher S. Andre

In the midst of an economy that continues to be troubled nationally and in the midst of continuing difficult times for organized labor, the Machinists Union recently announced the creation of a labor "union" for the unemployed called "UCubed" or "U3."

Department of Labor Publishes Model Cobra Notices

By Christopher S. Andre

On December 22, 2009, we reported that President Obama signed legislation included in a defense spending bill known as the Department of Defense Appropriations Act of 2010 that extends eligibility for subsidized COBRA coverage from December 31, 2009, to February 28, 2010, and expands the subsidy from 9 months to 15 months. Click here to read that report.

On January 13, 2010, the Department of Labor posted on its website information about required COBRA notices and model notices employers and plan administrators might use to comply with the Act's notice requirements. Click here to view that information and those model notices published by the Department of Labor.

California Supreme Court Confirms Basis For Denying Plaintiff Attorney's Fees and Costs Requests In Employment and Housing Discrimination Cases

By Christopher S. Andre

California's Fair Employment and Housing Act (FEHA) generally requires trial courts to award attorney's fees and costs to plaintiffs who prevail on claims for alleged violation of the FEHA. However, without specific reference to the FEHA, California Code of Civil Procedure Section 1033(a) gives trial courts discretion to deny attorney's fees and costs if the "prevailing" plaintiff recovers a judgment that could have been had in a limited civil case (i.e., $25,000 or less).

On January 14, 2010, the California Supreme Court unanimously held in Robert Chavez v. City of Los Angeles that Code of Civil Procedure Section 1033(a) applies to claims for alleged violation of the FEHA and that a trial court has discretion to deny attorney's fees and costs if: (a) the "prevailing" plaintiff recovers a judgment that could have been rendered in a limited civil case, and (b) the case could reasonably have been litigated as a limited civil case bearing in mind the $25,000 maximum recovery permitted in limited civil cases and the somewhat streamlined litigation procedures in limited civil cases.

In Chavez, Mr. Chavez, a police officer, brought numerous claims of alleged discrimination and retaliation against the City of Los Angeles, the Los Angeles Police Department, and others. Mr. Chavez prevailed on just one of his claims for which the jury awarded him $11,500 but sought an award of attorney's fees and costs of approximately $870,000.00. The California Supreme Court held the trial court correctly applied Code of Civil Procedure Section 1033(a) when it denied Mr. Chavez' request for attorney's fees and costs.

To read the complete text of the California Supreme Court's decision, click here.

California Supreme Court To Decide Employment Arbitration Case

By Christopher S. Andre

Approximately 18 years ago, in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, the California Supreme Court held that the decisions of arbitrators are generally immune to challenge in the courts, even if the arbitrator makes a legal error. Unlike cases decided in the court's, an arbitrator's decision generally cannot be appealed. This general rule has long been considered one of the trade offs of resolving employment claims by arbitration instead of in the courts.

On January 7, 2010, the California Supreme Court heard oral arguments in Pearson Dental Supplies, Inc. v. Superior Court to decide whether an arbitrator wrongfully dismissed the age discrimination case of a 67-year-old janitor. The case is important to California employers because the California Supreme Court apparently will revisit the issue of the extent to which arbitrator's decision are subject to review by the courts.

Pearson Dental Supplies terminated Luis Turcios' employment in January 2006. Mr. Turcois promptly filed suit.

In February 2007, his former employer pointed out Mr. Turcois' employment contract called for him to arbitrate disputes arising out of his employment. An arbitrator later dismissed Mr. Turcois' claim on the ground that Mr. Turcois' employment contract called for him to seek arbitration within one year of the date his employment was terminated, which Mr. Turcois did not do.

The trial court reinstated Mr. Turcois' claim, but the Court of Appeal overturned that ruling on the ground the trial court did not have the power to review the arbitrator's decision even when an arbitrator makes a legal error. The California Supreme Court granted Mr. Turcois' petition for review of the Court of Appeal's decision that the trial court lacked the power to reinstate Mr. Turcois' claim.

It is expected that the California Supreme Court will issue its decision within approximately 90 days. We will report that decision here after it has been published.