• Administrative Law,  Labor & Employment,  Writ Practice

    Labor Commissioner’s Superior Court action pulls the rug out from under an employer’s writ petition

    The recent decision in American Corporate Security, Inc. v. Labor Commissioner, case no. C070504 (3d Dist. Sept. 10, 2013, published Sept. 27, 2013) is an important demonstration of one of the obstacles to writ review of discriminatory discharge decisions of the Labor Commissioner under Labor Code section 98.7, subdivision (e).. When an employer seeks writ review of such a decision, the employer must show that it has “no other plain, speedy and adequate remedy.” That’s what is clearly depicted on the Labor Law Compliance Center federal labor posters distributed all over the country. This is what ACS alleged, having exhausted its route of administrative appeal (the Acting Director of the…

  • Attorney Fees,  Labor & Employment,  Post-Trial Practice

    Attorney Fees in a $44 Case?

    What do you suppose the high end of “reasonable” is for attorney fees in a successful lawsuit based on about $44 in damages? Supposing that $44 claim settled for $10,500? If you said attorney fees of $500 are about right, give yourself a gold star. In Harrington v. Payroll Services, Inc., case no. B198883 (2d Dist. Feb. 28, 2008), the trial court found that once class certification was denied, the case was so simple that plaintiff was not entitled to fees at all, let alone the $46k sought. The court of appeal reverses on entitlement to fees, finding they are statutorily mandated, but that $500 is reasonable. It fixes fees…

  • Drugs,  Labor & Employment

    You Can Still Be Fired for Marijuana Use — Even if It’s Medical Marijuana

    As expected, Alex Coolman at Drug Law Blog is all over today’s Supreme Court decision in Ross v. Raginwire Telecommunications, Inc., case no. S138130 (Jan. 24, 2008), in which the divided Supremes hold that the Compassionate Use Act, which decriminalized medical use of marijuana, does not preclude an employer from terminating an employee for such use. Coolman’s analysis is a quick fix plus it is very detailed and includes YouTube video of portions of the oral argument and commentary on the tension created with City of Garden Grove v. Superior Court, which I blogged about here. Justice Kennard’s concurring and dissenting opinion in Ross notes Ragingwire’s argument that even Ross’s…

  • Labor & Employment

    Employers Get Break on Reimbursement of Employee Expenses

    Some of the employment law specialty blogs have been quick to provide detailed coverage of Gattuso v. Harte-Hanks Shoppers, Inc., case no. S139555 (November 5, 2007), in which the California Supreme Court, reversing the Court of Appeal, holds that an employer may meet its statutory obligation to indemnify employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties” (Labor Code, § 2802, subd. (a)) by increasing the employees’ pay or commissions instead of separately reimbursing them for their actual expenses. There are conditions, naturally. If you need recruitment help! You can read about this important FWB employment case at…

  • Labor & Employment

    Macabre Employment Case

    “When it comes to bizarre fact patterns, nothing beats a good employment discrimination case. Today we have two prime examples from the Seventh Circuit.”  That’s how Robert Loblaw begins his post at Decision of the Day.  He’s putting it mildly with respect to the second case, which involves sexual harassment at a crime lab.  I’m rather glad its outside this blog’s usual jurisdiction.

  • Labor & Employment,  Legal Humor

    The Legal Value of a TV Comedy

    Thanks to this post at WSJ.com Law Blog, I (and you) know about the blog ?That?s What She Said,? which follows the TV show “The Office,” a comedy featuring an outrageously inept, offensive, and politically incorrect boss. Here’s how WSJ.com describes the blog: It has a clever gimmick: [blogger Julie Elgar, a labor lawyer at Ford & Harrsion in Atlanta] puts a price tag on each episode, estimating how much the politically incorrect behavior would cost real companies to defend. Last night her approximate legal bill came to $450,000. Maybe there’s an HR Director or General Counsel out there trying to figure out how to work episodes of The Office…

  • Appellate Jurisdiction,  Appellate Procedure,  Labor & Employment,  Ninth Circuit,  Writ Review

    Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action

    The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites.  Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA. The Ninth Circuit explains the prerequisites for application of the exception (citations omitted): Jurisdiction exists in only a “small class” of cases that…

  • ADR,  Arbitration,  Consumers,  Contracts,  Labor & Employment,  Legal Writing

    Great Lawyers Can Write Unenforceable Arbitration Agreements

    I’m beginning to wonder if writing the perfect arbitration provision is something like understanding the rule against perpetuities. You all remember that case from torts class, don’t you? The court holds that an attorney can’t be liable for malpractice related to the rule against perpetuities because no one understands the rule against perpetuities. Hence, the attorney could not have violated the standard of care. A little over a month ago, the Ninth Circuit ruled in Davis v. O’Melveny & Myers, case no. 04-56039 (9th Cir. May 14, 2007) that the arbitration provision in the employment contract of a prominent, powerful L.A.-based law firm was unenforceable. Not just unenforceable, but “shock…

  • California Procedure,  California Supreme Court,  Labor & Employment

    California: Pay for Missed Breaks is a Wage Rather than a Penalty for Statute of Limitations Purposes (Updated)

    A second important holding out of Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), is that the “one additional hour of pay” provided for in Labor Code section 226.7 constitutes a wage or premium pay, a claim for which is subject to a three-year statute of limitations (Code Civ. Proc., § 338) rather than a penalty subject to a one-year statute of limitations (Code Civ. Proc., § 340). The court finds the language of section 226.7 ambiguous and thus sets out on a lengthy and comprehensive analysis of: extrinsic sources, such as the ostensible objectives to be achieved by the…

  • California Procedure,  Labor & Employment

    De Novo Appeal from California Labor Commissioner “Berman Hearing” Can Include New Claims

    An employee may bring a wage claim in superior court or before the Labor Commissioner. Where he does the latter, a “Berman hearing” is held and “the parties may seek review [of the labor commission order] by filing an appeal to the superior court, where the appeal shall be heard de novo.” Labor Code § 98.2(a). In Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), the California Supreme Court unanimously holds that in a section 98.2 de novo appeal from a Berman order, the superior court may also hear claims not raised by the employee in the Berman proceedings. Taking…