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Tuesday, August 24, 2010

California Employment Legislation Nears Completion as Deadline Looms

By Jonathan Judge

With the August 31, 2010 deadline for legislative bills to be passed a week away, several employment-related bills are working their way through the California legislature to Governor Schwarzenegger’s desk.

A trio of bills were recently enrolled and should reach the Governor’s desk shortly:

AB 2340 (Monning) Bereavement Leave - This bill would allow for three days unpaid leave for bereavement purposes upon the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or domestic partner’s child, within 13 months of the death of the bereaved individual. The provisions of the bill would not apply to an employee who is covered by a valid CBA that provides for bereavement leave and other specified working conditions.

SB 903 (Wright) Statute of Limitations - This bill would extend the period within which the Division of Labor Standards Enforcement (“DLSE”) may commence a collection action, as defined, from one year to three years.

SB 1474 (Steinberg) Agricultural Employee Labor Representatives - This bill would authorize the Agricultural Labor Relations Board, under specified circumstances, to set aside an election where there has been misconduct by the employer affecting the outcome of an election and to certify a labor organization as the exclusive bargaining representative for a bargaining unit if the organization had previously presented the board with authorization cards signed by more than 50% of the employees in that bargaining unit.

Once enrolled and to the Governor’s desk, the Governor has 10 days to sign, veto, or let a bill become law without his signature during the legislative session.

Also, earlier this month, legislation amending the Fair Employment and Housing Act (“FEHA”) affecting the provision of health benefits to retirees was signed by the Governor and will become law effective January 1, 2011:

AB 1814 (Buchanan) Discrimination in Employment - This bill amends FEHA to provide that FEHA does not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the retiree becomes eligible for Medicare benefits.

Please check back regularly for updates on California legislation.

Thursday, August 12, 2010

AALRR Defeats Union Demand For Arbitration Over Card Check And Ongoing Representation At Ninth Circuit

 
AALRR represents Flooring Solutions of Nevada, Inc. ("FSI") in a dispute with the Painters Union.  After FSI's labor agreement expired in early 2007 the Painters claimed to continue to represent FSI's employees. The Painters' claim was based upon a card check clause in the expired agreement and unilateral steps the Painters took just before contract expiration. A National Labor Relations Board ("NLRB") administrative law judge rejected the Painters' position and ruled in late 2007 that the Painters did not represent FSI's employees following expiration of FSI's labor agreement.  Likewise, the Judge dismissed similar allegations against other contractors whose employees the Painters claimed to continue to represent after contract expiration.  The Painters appealed the Judge's ruling.  The appeal remains pending with the NLRB in Washington, DC.
 
After the NLRB judge ruled, the Painters requested arbitration under the expired labor agreement to determine whether employees of FSI and the other contractors remain represented by the Painters.  At no time had the Painters filed a grievance under the expired labor agreement on the issue they sought to arbitrate.  The Painters did, however, file a lawsuit nearly a year after the agreement expired to compel arbitration.
 
The federal district court in Las Vegas dismissed the lawsuit on summary judgment, as the representation issue was already pending at NLRB.  The Painters appealed to the Ninth Circuit Court of Appeals.  In December 2009 the Ninth Circuit held oral argument on the case.  Then, in a July 30, 2010 ruling, the Ninth Circuit's three judge panel ruled that the lawsuit was properly dismissed by the district court.  The Court observed that the representation sought by the Painters through arbitration was the same presented as an issue in the pending NLRB case now on appeal.  The Court acknowledged NLRB supremacy on questions of representation as well as labor policy favoring arbitration of labor disputes.  The Court advised that not all representation issues would be barred from arbitration.  However, under the circumstances in the present case, the Court determined that the NLRB was the better forum to determine the question of ongoing union representation and whether it has been achieved by a card check consistent with NLRB standards.
 
It is not clear when the NLRB will rule on the Painters' pending appeal from the 2007 administrative law judge's ruling.  Nor is it clear at this time whether the Painters will challenge the Ninth Circuit's ruling.

Monday, August 9, 2010

California Supreme Court Rejects “Stray Remarks” Doctrine in Age Discrimination Case

By Ronald W. Novotny

Last week, in a long-awaited decision, the California Supreme Court handed employers a setback by holding that age-related comments by non-decision makers can be relevant and admissible as evidence in age discrimination cases. In the case of Reid v. Google, Inc., the Court specifically rejected the "stray remarks doctrine," by which any remarks made by non-decisionmaking co-workers or decision-making supervisors outside the decisional process were deemed irrelevant and insufficient to support an age discrimination claim. 

The case was brought by Brian Reid, who was hired as Google's director of operations and engineering at age 54 but was removed from that position and then terminated less than two years later.  Reid attempted to prove his claim for age discrimination by use of comments made by his superiors and co-workers that his opinions were obsolete and "too old to matter," that Reid was "slow," "lazy," and "lethargic," and "lacked energy," and that he was an "old fuddy duddy" whose office placard should be an LP instead of a compact disc. Reid was first removed from his director position and put in charge of a graduate program after being criticized for failing to keep up with the corporation's "super-fast pace," and was then removed from that position when the program was eliminated and management determined that he was "not a good cultural fit."

The Supreme Court unanimously held that the categorical exclusion of age-related comments of this nature was impermissible because they both can influence a decision-maker and provide relevant circumstantial evidence of discrimination. The Court wrote that:

Although stray remarks may not have strong probative value when viewed in isolation, they may corroborate direct evidence of discrimination or gain significance in conjunction with other circumstantial evidence.
The likely effect of the ruling is to make it more difficult for employers to obtain summary judgment on age discrimination claims when additional evidence of discrimination beyond such stray remarks exists to support the claims.