NLRB Appointments Foreshadow Imminent Change In Labor Law Enforcement

By Thomas A. Lenz

Last weekend President Obama made two recess appointments filling seats at the National Labor Relations Board. Union lawyers Craig Becker and Mark Pearce will fill two of the three vacant seats on the Board. Members Becker and Pearce were originally nominated as a package with a third, Republican, nominee for Senate consideration. Senate confirmation did not happen. No Republican received a recess appointment. It remains an open question what steps may be taken to fill the final seat on the Board, if at all, and whether the final seat will be filled by a Republican to follow the historical 3-2 Board composition.

The recess appointments, which do not require Senate confirmation, come less than a week after NLRB argued the validity of two-member Board rulings at the United States Supreme Court. If NLRB loses at the Supreme Court there are hundreds of two-member Board rulings from the period since 2008 which may be voided. It is expected that those cases would be sent back for reconsideration by the new Board members.

The Board will operate for the foreseeable future with 3 Democrats and 1 Republican member making decisions on litigated cases. The lone Republican (Peter Schaumber) has a term which expires in August 2010. Thus, as of September we may have a Board composed exclusively of former union attorneys on the Democratic side deciding the cases litigated at NLRB.

On the day to day operations side of NLRB, the term of General Counsel Ronald Meisburg also expires in August 2010. Meisburg was appointed by the Bush administration. It is unclear who is likely to succeed him. It should be expected that the President will appoint a new NLRB General Counsel who will take a new and distinct view of law and policy to protect employees' concerted and union activities and the collective bargaining process. A new General Counsel's approach to labor issues can significantly impact the day to day operations of the NLRB's many field offices. It is at this level that most employers deal with the NLRB on investigation, hearing, and election issues.

Employers should stay tuned, train supervisors on labor law compliance, and make sure that policy and procedure are consistent with company objectives and the law.

Thanks For Helping Us To Make The 11th Annual AALRR Employment Conference A Success

By Christopher S. Andre

On March 25, 2010, we conducted our 11th Annual Employment Law Conference at the Cerritos Center for Performing Arts and the Cerritos Sheraton.

We thank each of our guest speakers and each of the more than 600 attendees who helped us to make this annual full day event a success.

9th Circuit Holds That Time Spent Donning And Doffing Police Uniforms And Gear Is Not Compensable Under The FLSA

By Christopher S. Andre

Today, in Bamonte v. City of Mesa, the Ninth Circuit Court of Appeals held that the time police officers spend putting on and taking off their police uniforms and police gear is not compensable time under Federal law under the Fair Labor Standards Act and the Portal-to-Portal Act because the City of Mesa did not require the officers to put on or take off their uniforms and gear at the workplace. The court explained that while the officers might for valid reasons prefer to put on and take off their uniforms and gear at the workplace and not at home, that preference on the part of the officers did not render the time spent performing those tasks compensable time.

As we previously reported here and here, there are important differences between what an employer is required to do under Federal law under the Fair Labor Standards Act and what an employer is required to do under California law. Private employers in California should note that a California court would apply different standards to determine whether the time employees spend putting on or taking off uniforms and/or work related gear is or is not compensable time.

Click here to download and to read a copy of the opinion.

Court of Appeal Clears Employment Screening Agency Of Alleged Prohibited Use Of Information On Megan's Law Website

By Christopher S. Andre

On March 23, 2010, in Mendoza v. ADP Screening and Selection Services, Inc., the California Court of Appeal affirmed the trial court's decision to strike Mendoza's complaint alleging ADP violated various statutes by disclosing to a prospective employer the appearance of Mendoza's name on the Megan's Law Website maintained by the California Department of Justice. For example, Mendoza alleged ADP violated California Penal Code Section 290.46, which prohibits the use of information disclosed on the Megan's Law Website for purposes relating to, among other things, employment.

The Court of Appeal held that ADP had a constitutionally protected right to disclose information found on the Megan's Law website and that the court properly granted ADP's special motion to strike Mendoza's complaint on the ground Mendoza could not show as a matter of law a probability of prevailing on his complaint. The court reasoned that ADP was not Mendoza's employer and therefore did not "use" information found on the Megan's Law in a way prohibited by the Penal Code. The court stated the Megan's Law website statute "is not intended to create liability for damages on the part of employment-screening businesses who access, compile and republish information disclosed on the MLW, and that the statutory liability created by the MLW statute should be limited to employers who 'use' information disclosed on the MLW as a basis for an employment decision."

Notably for employers, the court went on to state that Mendoza's "cause of action, if any, lies against his prospective employer, and not" ADP.

Click here to download and to view a copy of the decision.

Former Chief Counsel To California Division Of Labor Standards Enforcement Returns To AALRR

By Christopher S. Andre

Robert R. Roginson, formerly Chief Counsel for the California Division of Labor Standards Enforcement, has rejoined the firm as a partner in its Employer Services Department. Appointed by Governor Arnold Schwarzenegger in October 2007, Mr. Roginson represented and advised the California Labor Commissioner and her staff in all aspects of enforcement and interpretation of California’s labor and wage and hour laws, licensing requirements, and retaliation statutes.

Mr. Roginson returns to AALRR where his focus will be on labor relations and employment law. His practice will include counseling employers in California wage and hour and pay practice matters and defending employers in class action litigation.

"I am extremely excited about rejoining AALRR. They have a well deserved reputation throughout California for practical and effective representation and advocacy on behalf of their clients. With AALRR's commitment to assisting employers in strengthening workplace pay practices and ensuring compliance and their deep labor and employment law talent pool, we will have the resources necessary to assist clients to be more profitable and competitive in a difficult and uncertain marketplace,” stated Mr. Roginson.

“Our firm and our clients are fortunate to have such a talented attorney rejoin our firm. Bob has been at the forefront of many of central wage and hour issues facing California employers and his return adds another level of expertise to our multi-dimensional representation of employers," said Robert L. Wenzel, Partner and Employment Law Practice Chair.

Bob’s statewide platform as Chief Counsel of California's labor enforcement agency greatly enhances our ability to efficiently serve our larger clients,” said James C. Romo, Managing Partner.

Pending Challenges To Court Of Appeal Decision Regarding Class Certification In Wage And Hour Cases

By Christopher S. Andre and Scott K. Dauscher

As we previously reported here, on February 8, 2010, the California Court of Appeal published its decision in Jaimez v. Daiohs USA, Inc., a decision we think is wrongly decided in many ways and that might make it significantly easier for plaintiffs to obtain class certification in wage and hour cases.

On March 8, 2010, pursuant to California Rules of Court, Rule 8.1125, we filed with the California Supreme Court a request that the decision be depublished. If the California Supreme Court grants our request, the Court of Appeal's decision will cease to have any precedential effect. We did not represent Daiohs USA, Inc., in the case, but the Rules of Court permit any person to file a request to depublish reported decision of a California appellate court.

On week later, on March 15, 2010, Daiohs USA, Inc., filed with the California Supreme Court a petition for review of the Court of Appeal's decision. If the California Supreme Court grants that petition, pursuant to California Rules of Court, Rule 81105(e), the Court of Appeal's decision will cease to have any precedential effect while the California Supreme Court's review of the decision is pending.

We are hopeful that the California Supreme Court will either grant our request that the court depublish the Court of Appeal's decision or grant the petition for review and reverse the Court of Appeal's decision.

Ninth Circuit Holds Wage Claim Against Church Is Barred By The Free Exercise Clause And The Establishment Clause Of First Amendment

By Christopher S. Andre

Today, in Alcazar, et al. v. The Corporation Of The Catholic Archbishop of Seattle, et al., the Ninth Circuit Court of Appeals held that a Catholic seminarian's claims against his church for allegedly unpaid wages brought under a Washington state minimum wage statute is barred as a matter of law by the Free Exercise Clause and the Establishment Clause of the First Amendment of the United States Constitution.

Cesar Rojas and Jesus Alcazar were Catholic seminarians in Mexico. They were required to participate in ministry training in Washington state. Mr. Rojas and Mr. Alcazar both brought sexual harassment claims against Father Horatio Alvarez and the Corporation Of The Catholic Archbishop of Seattle, and Mr. Rojas brought also claims for alleged unpaid overtime under Washington state's Minimum Wage Act.

On appeal, the Ninth Circuit affirmed the District Court's dismissal of the claims. In particular, the Ninth Circuit held that Rojas' wage and hour claims are barred by the Free Exercise Clause and by the Establishment Clause of the United States Constitution. Significantly:

The court held that the "ministerial exception" mandated by those clauses "applies as a matter of law across statutes, both state and federal, that would interfere witht he church-minister relationship." The court determined that applying Washington state's Minimum Wage Act to "ministers" would unconstitutionally "interfere with a protected employment decision."

The court held the "ministerial exception" "encompasses all 'tangible employment actions' and disallows lawsuits for damages based on 'lost or reduced pay'" because "[s]uch damages would 'necessarily trench on the Church's protected ministerial decisions.'"

The court established a broad test for determining who qualifies as a "minister," stating "if a person (1) is employed by a religious institution, (2) was chosen for the position based 'largely on religious criteria,' and (3) performs some religious duties and responsibilities, the person is a 'minister' for purposes of the ministerial exception." The court noted that lay persons can be "ministers" under this test and that "secular duties are important to a ministry." For example, the court noted that a church's director of music ministry and part-time teach fell under the "ministerial exception."

Because of the constitutional underpinnings and breadth of the court's holding and the breadth of the court's reasoning, this decision may provide to employers that are religious institutions a powerful defense to a variety of employment claims when brought by persons who satisfy the court's test for who qualifies as a "minister."

Click here to download and to read the decision.

California Wage and Hour Gold Rush?

By Christopher S. Andre

As previously reported here, a recent report issued by the Judicial Council of California, Administrative Office of the Courts, Office of Court Research, shows that employment cases were the most frequently filed class actions, representing 29.3% of the class actions filed and that over half of the employment cases filed alleged violations of Labor Code provisions governing payment of wages, rest and meal periods, and related claims. Click here to download and view that report.

As one might expect, most of the employment cases are brought by plaintiffs' attorneys However, with increasing frequency, we are seeing employment cases being filed by law firms that have in the past represented defendants almost exclusively. In other words, some defense firms that might in past have been loath to represent a plaintiff are now doing exactly that.

It is too early to tell why some defense firms are beginning to represent plaintiffs in employment cases. It could be because some defense firms are beginning to view representing plaintiffs in employment cases to be too lucrative to pass up because even a relatively modest win can result in a relatively large award of attorney's fees to the plaintiff or plaintiffs. It could be because some defense firms are losing market share in their historical practice areas and are trying to fill in the gaps.

Regardless of the reason(s), one thing is almost certain. More and more attorneys are actively looking for opportunities to file wage and hour and other employment cases against employers. This likely means that employment cases will continue to be some of the most frequently filed cases.

9th Circuit Court of Appeals Addresses Compensability Of Preliminary And Postliminary Activity Under FLSA

By Christopher S. Andre and Ronald W. Novotny

On March 2, 2010, in Rutti v. Lojack Corporation, Inc., ("Rutti II") the Ninth Circuit Court of Appeals withdrew its previous decision at 578 F.3d 1084 (9th Cir. 2009) ("Rutti I") and revisited its holdings regarding the extent to which commuting time is compensable time, the extent to which work related activities before work begins is compensable time, and the extent to which work related activities after work ends is compensable time under Federal law under the Fair Labor Standards Act and under the Portal-to-Portal Act as amended by the Employee Commuter Flexibility Act.

Rutti was employed by Lojack as technician to install and repair vehicle recovery systems in customers' cars. His duties required him to commute using a vehicle supplied by Lojack. He was paid on an hourly basis beginning when he arrived at the first job of the day and ending when he completed the last job of the day.

Rutti alleged Lojack was required to pay him and approximately 450 other technicians for time spent in the morning receiving assignments, mapping his routes, and prioritizing his jobs; for time spent driving from his home to the first job of the day and for time spent driving from the last job of the day to his home; and for time spent in the evening uploading data about jobs performed each day.

Based on the trial court record and on Federal law, the court held in Rutti II:

1. Lojack was not required to pay Rutti for his morning preliminary activities because those activities were related to his commute, which is presumptively non-compensable under the FLSA, were not integral to Rutti's principle work activities, and appeared to be de minimis time in any event and therefore non-compensable even if otherwise compensable.

2. Lojack was not required to pay Rutti for commuting time even though Lojack placed restrictions on how Rutti could use the vehicle Lojack supplied to him because those restrictions were not so severe as to make the commuting time compensable.

3. Uploading data each evening appeared to be "part of the regular work of" Rutti and therefore compensable in nature, but Lojack might or might not be required to pay Rutti for those evening postliminary activities depending on whether that time is later determined to be de minimis or not. The court remanded that issue to the trial court for further consideration.

4. The record did not support the trial court's grant of summary judgment in favor of Lojack on Rutti's claims under California law, and the court remanded that issue to the trial court for further proceedings.

As previously reported here, there are important differences between what employers are required to do by the FLSA and what employers are required to do by California law. This case further illustrates some of those differences and how conduct permitted under Federal law might not be lawful under California law.

Click here to download and to read the decision.