Labor and Employment Law Section

News from the Section 

Message from the Chair

Thank you for this opportunity to begin serving as the State Bar of California Labor and Employment Law Section Chair after many years working with the Executive Committee. It is an auspicious moment to take on this role.

The Section has just completed the first-ever, comprehensive survey of labor and employment lawyers in California and our level of satisfaction with the practice, after inviting more than 7,000 members to respond. I profile the results in my article for the upcoming edition of our California Labor and Employment Law Review. My hope is that over the coming year while I am Chair, the Section will focus on those objectives that most cater to what the labor and employment Bar is seeking, based upon the survey results.

In particular, though we are mostly satisfied, not enough of us are very satisfied with our career. It is telling that a low percentage of members are satisfied with their participation in pro bono and volunteer activities, that most wish they could do more to help people who really need it, that mentorship seems to help people achieve much higher satisfaction, that we are tired of contentious written discovery (no surprise there!), and that a high percentage report depression or anxiety in a typical month.

To respond, the Section is initiating a series of new initiatives - I hope you will read the upcoming Law Review to learn about them all, and let the Section help make your career an even more satisfying and meaningful one for you!

— Bryan Schwartz, Chair

Advanced Mediation Conference Practical Skills for Experienced Employment Litigators

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Friday, December 2, 2016

355 South Grand Avenue
Los Angeles, CA 90071

Earn 6.5 Hours MCLE credit!

You can now REGISTER ONLINE for this program.  Online registration will close after November 25. 

Even seasoned litigators sometimes feel lost with questions such as how aggressively to open or how to move a negotiation forward without giving too much away. And even seasoned litigators sometimes leave mediation feeling frustrated because a client left money on the table, or paid too much, or a case that should have settled did not. This unique, full-day course will teach attorneys how to achieve better results, allowing them to resolve cases more efficiently and with greater client satisfaction. Using individual and paired exercises, small group discussions, and panel discussions, our faculty will give lawyers the concrete tools to resolve more cases, more quickly, with better bottom-line outcomes. Registration is limited, so sign up early.

Program Schedule | Essential Information | Printable Brochure | Mail/Fax Reg. Form

Click here for more info!

Webinar: Pay Equity Demystified: Practical Legal and Statistical Considerations

Tuesday, November 8, 2016, 10:30 a.m. - 11:30 a.m.

This program offers 1 hour participatory MCLE credit. You must register in advance to participate.

This program is a non-technical discussion of the legal and statistical considerations bearing on pay equity claims under federal and California law, including issues and challenges regarding how to properly identify and measure pay disparities.  Topics covered will include:

  1. The current legal and regulatory landscape of pay equity under federal and California law – from the point of view of both an employee-side and management-side attorney
  2. A non-technical primer on the role of data
  3. Hypothetical case study of a pay equity charge, employer response, and the role of a labor economist
  4. Best practices for employers conducting proactive compensation assessments

Speakers: Lori E. Andrus, Kathryn G. Mantoan and Paul F. White

Webinar: The Challenge of Fair Employment in a Pluralistic Democracy: Comparing Israel’s and California’s Laws

Wednesday, November 16, 2016, 1:30 p.m. - 2:30 p.m.

This program offers 1 hour participatory MCLE credit. You must register in advance to participate.

Mariam Kabaha, the Arab-Israeli attorney who serves as the State of Israel’s National Commissioner for Equal Employment Opportunities, will join a discussion with Kevin Kish, Director of California’s Department of Fair Employment and Housing, and Chaya Mandelbaum, Chair of California’s Fair Employment and Housing Commission, regarding the challenges and opportunities in our respective states’ and nations’  employment protections.

Speakers: Mariam Kabaha, Kevin Kish, Chaya Mandelbaum and Bryan Schwartz

Quotes of the Month

  • “Democracy is the worst system devised by the wit of man, except for all the others.” – Winston Churchill

  • “Standing in the middle of the road is very dangerous; you get knocked down by the traffic from both sides.” – Margaret Thatcher

  • “The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis.” – Dante

This Month in Labor and Employment Law News

California’s 2015-2016 legislative session has now concluded, ushering in a new crop of California employment statutes. This month, Labor and Employment Law News recaps some of the new statutes of widespread applicability and importance.

  • The recently enacted California Fair Pay Act (California Labor Code §1197.5) has now been expanded to require equal pay for substantially similar work not only between employees of different genders, but also between employees of different races and ethnicities. SB 1063.

  • California’s Fair Pay Act has also been amended to provide that prior salary cannot, by itself, justify any disparity in compensation. AB 1676.

  • Employment contracts entered into, modified, or extended on or after January 1, 2017 may not preclude applicability of California law to employees who primarily live and work in California, nor may they require California employees to litigate or arbitrate outside California. Contracts negotiated by attorneys are an exception. SB 1241.

  • Employers must now file an appellate bond if they wish to take a writ of mandate to contest a Labor Commissioner decision that the employee was not paid all wages required by law. AB 2899.

  • California employers will generally be forbidden from asking applicants about, or relying upon, information related to the arrest or conviction of the applicant as a juvenile. AB 1843. California law already prohibits consideration of arrests not leading to conviction, pretrial diversions, or convictions that have been dismissed or sealed.

  • The Phase-In Overtime for Agricultural Workers Act of 2016 (AB 1066) was signed into law. Effective on the dates listed below, agricultural employers with more than 25 employees will be required to pay time and a half for hours exceeding:

    - January 1, 2019 9-1/2 hours per day or 55 hours per week;
    - January 1, 2020 9 hours per day or 50 hours per week;
    - January 1, 2021 8-1/2 hours per day or 45 hours per week;
    - January 1, 2022 8 hours per day or 40 hours per week.
    Double time will be required for work exceeding 12 hours a day beginning on January 1, 2022. Each of these effective dates is three years later for employers with 25 or few employees.

This Month in Labor and Employment Law History

  • October 9, 1972: The McNamara–O'Hara Service Contract Act is enacted, requiring that federal contractors and subcontractors pay at least prevailing wages.

  • October 15, 1914: The Clayton Antitrust Act was enacted, exempting labor unions from antitrust laws that had been interpreted to ban boycotts, peaceful strikes, peaceful picketing, and collective bargaining.

  • October 28, 1929: The American stock market crashes, ushering in the Great Depression and an unemployment rate peaking at 25% in 1932.

Top Three Newly-Published Labor and Employment Cases

  • Perez v. U-Haul Co. of California (California Court of Appeal, Case No. B262029, September 16, 2016). The California Supreme Court’s 2014 decision in Iskanian held that arbitration agreements cannot force employees to arbitrate PAGA claims. Here, the Court of Appeal rejected the employer’s argument that its arbitration clause could nonetheless force the class representatives to individually arbitrate whether they are “aggrieved employees” within the meaning of PAGA.

  • Dang v. Maruichi American Corporation (California Court of Appeal, Case No. B269005, September 22, 2016). A supervisor claimed he was discharged in violation of public policy for “engaging in concerted activity relating to unionizing efforts.” The claim was not preempted by the NLRA, the Court held, because he was not fired for giving testimony in NLRB or grievance proceedings, for refusing to commit unfair labor practices, or for failing to prevent unionization.

  • Castro-Ramirez v. Dependable Highway Express, Inc. (Case Nos. B261165 and B262524, California Court of Appeal, August 29, 2016). The Court held that failure to schedule an employee so he could be home to administer dialysis to his disabled son was evidence of discrimination and retaliation against the employee for associating with someone disabled, which violates FEHA. The Court left undecided the question of whether employers also have a separate duty to reasonably accommodate disabilities of employees’ family members.

News From the Labor and Employment Law Review

Submissions are always welcome! We encourage you to take a look at our Guidelines and Editorial Policy and to send us your well-researched articles for consideration.

The September issue of our Section’s Labor and Employment Law Review will feature an article by D. Jan Duffy and Emily Stehr entitled “New FEHA Regulations Advance the Standard of Care for Prevention and Correction of Sexual Harassment in the Workplace.” Look for that as well as our regular case law updates from our outstanding columnists.

MCLE CREDIT: If you're looking for MCLE credits (including for ethics), consider self-study articles from the Law Review, available here for as low as $15 a credit.

Your Legal Rights Radio Program

Labor and Employment Law Section on the RadioRadio station KALW and 15 other radio stations regularly broadcast “Your Legal Rights,” a show in which callers can ask questions of attorneys with expertise in different areas of the law. The show is also uploaded to the National Public Radio Satellite for national distribution. Our Section sponsors programs on labor and employment law. Here’s what’s coming up next:

  • August 31, 2016, 7‑8 p.m., Overtime Pay and Minimum Wage: How They Work and What’s New, with Samson Elsbernd and Alan Cohen

Tune into KALW at 91.7 FM for the San Francisco Bay area and on the Internet at To see all labor-related programs in our archive, see Your Legal Rights.

Practice Tips

  • Practitioners will now be able to cite published California Court of Appeal cases even after the California Supreme Court grants review, unless the case is specifically ordered depublished. The new rule applies to cases where review is granted on or after July 1, 2016. California Rules of Court, Rule 8.1105(e)(1)(B).

  • Employees may once again form bargaining units, without permission from the employer, that include both people employed only by the “user employer” and those jointly employed by a labor supplier. Miller & Anderson, Inc. and Tradesmen International (NLRB Case 05-RC-079249, July 11, 2016), reversing a 2004 decision that reversed a 2000 decision.

  • With the hiring of many more DFEH and DSLE investigators (see “This Month’s Labor and Employment News,” above), practitioners should consider how they might better use these administrative agencies to resolve FEHA and wage and hour claims.

Get Online Participatory MCLE Credit from the Labor and Employment Law Section

Your Labor and Employment Law Section offers lots of continuing education about employment discrimination law, as well as many other topics. We have online MCLE you can access any time, day or night, using a handy new webpage organized by category. Click on any of the topics listed below to see what courses your Section offers on that topic:

SB 836 Amendments to Labor Code Private Attorneys General Act (PAGA) Effective June 27, 2016

The budget signed by the Governor includes changes to the state’s Private Attorneys General Act (PAGA), including court review of settlements, filing fees, and resources to review and take cases, and online filing.  These changes are part of an oversight effort to give the state better data on filing. These changes affect attorneys!

SB 836, which became effective on June 27, 2016, made important changes in PAGA requirements.  Except as otherwise noted, these requirements apply prospectively to all pending PAGA cases as well as new filings.

The Labor and Workforce Development Agency has a new webpage available which includes initial information on the changes and will be updated as the program evolves.   Read all the new requirements HERE.

Thank You for Being a Section Member - Here's 6 Hours MCLE in Legal Ethics!

We're very grateful for your membership in the Section. As a token of that, we're offering six hours of self-study MCLE credit in the area of Legal Ethics. The programs are posted in our Member's Only Area.

Simply watch the programs and read the accompanying materials, and keep track of having done so. You can report this to the State Bar when it's time to demonstrate your compliance with the MCLE requirements.

Case Law Alerts

Have you signed up to receive Labor Case Alerts? These case summaries are being sent to you by the Labor and Employment Law Section, in cooperation with Phyllis Cheng. Section members can sign up through My State Bar Profile.

Section Publications on California Public Labor & Employment Law

Our Section published the two definitive treatises on California public sector labor and employment law:

Follow the Sections and CYLA on Facebook and Twitter and LinkedIn! LinkedIn Like us on Facebook! Follow us on Twitter.

We're delighted to announce that the Labor and Employment Law Section just launched our own pages on Facebook and Twitter. We're looking forward to interacting with a wider community and reaching out to people who are not currently members.

In addition, the Section has a presence on the LinkedIn group for The Sections and the California Young Lawyers Association (CYLA).

We invite you to "Like" us and follow our "Tweets"!

Contact Us

Labor & Employment Law Section The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
FAX 415-538-2368