From NBOA To NAIS Conference - LCW's Update From The East Coast

Posted by Guest Author on February 25, 2011

This guest post was authored by Cynthia Weldon, Liebert Cassidy Whitmore

Thank you to the organizers and attendees of the annual NBOA Symposium which ended Wednesday, February 23, in Washington D.C.  It was gratifying to see so many schools represented from across the country come to together to share their triumphs and tribulations.

Liebert Cassidy Whitmore's first presentation was a Town Hall meeting. Attendees asked unscripted questions on a wide range of topics to a panel of experts: Michael Krackov from United Educators, Barbara Whitney from Crossroads School, Darrow Milgrim from Wells Fargo Insurance Services, USA, School Division and Michael Blacher from LCW.  Questions mainly focused on cyber-bullying, wage and hour issues, discipline and layoffs, and field trips.  There were also questions dealing with facilities and a variety of other issues. 

Day two brought the goldmine sessions – a series of 15-minute presentations, almost like speed dating.   Michael Blacher covered Disability Issues and Donna Williamson covered Enrollment Agreements.  Attendees raved about Donna’s handout so we have attached it here (NBOA-2011-Goldmine-Tough-as-Nails-Ironclad-Enrollment-Agreements.pdf) for those who could not attend.

LCW’s part of the conference ended with a presentation on Wage and Hour issues by Donna Williamson.  Afterwards many loaded into shuttles and headed off to NAIS Annual Conference, which ends today. 

 

Liebert Cassidy Whitmore's Update From NAIS Annual Conference 2011

Posted by Guest Author on February 23, 2011

This guest post was authored by Cynthia Weldon, Liebert Cassidy Whitmore


It is beautiful here at the NAIS annual conference just outside of Washington D.C.  The conference is off to a great start.  The excitement on the shuttle to the Gaylord Convention Center was enticing.  The networking has started – in the brief time we have been here, we have already talked to attendees who have traveled from Nigeria, Arizona, New York and Liebert Cassidy Whitmore’s home state of California.  The booth is set up and we are looking forward to seeing more people in the exhibit hall tomorrow as well as in the sessions. 

Donna Williamson and Michael Blacher are fresh off their presentations at NBOA and are jazzed about their upcoming workshops: 

  • Crisis Management for Michael and Melanie Poturica (and Deborah Richman from Turning Point) on Thursday, Feb. 24 at 8:00 am;
  • Employee Privacy and Investigations in an Online World for Donna and Diane Rosenberg from The Nueva School on Friday, Feb. 25 at 8:00 am; and
  • Town Hall with a plethora of experts (Michael from LCW; Harry McKay from St. Andrews Episcopal School; Jim McManus from CAIS; Darrow Milgrim from Wells Fargo Insurance Services USA, School Division; Gretchen Reed from Westridge School; and Debra Wilson from NAIS) on Friday, Feb. 25 at 1:30 pm. Bring your questions to this esteemed group or drop them off to the LCW booth (#605) or direct message them to @lcwlegal. 

Melanie is also excited about her presentation with Mark Brooks from Pilgrim School on Student and Employee Disability Discrimination on Thursday, Feb. 24 at 1:30 pm and on Friday, Feb. 25 at 8:00 am, she will be Going Global with Siri Fiske, Ted Hill, and John Nordquist from Chadwick School.  In truly going global, Jeffrey Mercer, also from Chadwick, will participate via Skype from Korea. 

We are caught up in the excitement and look forward to meeting as many attendees as we can! 

Please follow @lcwlegal and @melaniepoturica on Twitter to receive live updates while at the annual conference.

No Common Law Negligence Cause Of Action May Exist Against An Employer For Inadvertent Disclosure Of Private Information Concerning Former Employees; But Other Causes Of Action May Exist

Posted by Frances Rogers on February 22, 2011

Can a public employer be held liable for negligence or for a section 1983 claim because the employer accidentally disclosed the names, addresses, telephone numbers, marital status and social security numbers of 1,750 former employees?  An Illinois appellate court doesn’t think so.

Cooney v. Chicago Public Schools was brought to my attention by the IAPP Daily Dashboard.  This featured a blog post by the Information Law Group which noted this may be the first published decision to hold there exists no common law negligence claim exists against an employer for disclosure of personal information such as address, telephone number, date of birth and even social security numbers.  Plaintiffs were 1,750 former employees of Chicago Public Schools governed by the Board of Education of the City of Chicago.  The Board retained a printing company to print, package and mail a COBRA open enrollment list to plaintiffs to inform them that as COBRA participants, they could change their insured benefit plans. The package, however, ended up containing the names of all 1,750 plaintiffs, as well as each of their addresses, social security numbers, marital status, medical and dental insurers and health insurance plan information. When the Board learned of the disclosure of information, it sent a letter to the former employees asking them to return the COBRA list or destroy it and offered plaintiffs one year of free credit protection insurance.

Plaintiffs filed individual and class action lawsuits alleging various state and federal causes of action including: (1) violation of the common law right to privacy; (2) negligent infliction of emotional distress; (3) negligence; (4) breach of fiduciary duty; and (5) violation of their U.S. Constitutional rights vis-à-vis 42 U.S.C. section 1983.  The trial court granted, and the Illinois appellate court affirmed, the dismissal of plaintiffs’ claims against both the Board and the printing company. 

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Supreme Court To Determine Availability Of Mixed-Motive Defense For Employers

Posted by Morin Jacob on February 15, 2011

Justice.jpgHarris v. City of Santa Monica is currently pending before the California Supreme Court.  It is unclear at this point when a decision will be handed down, but we are closely monitoring the case and will continue to do so.  Oral arguments have not been held yet.

In Harris, plaintiff disclosed to her supervisor that she was pregnant before she was terminated but while she was still on probation as a new hire.  After she was terminated she sued the City and alleged that she was fired for discriminatory reasons; i.e., because she was pregnant.  The City’s position was that she was terminated for poor performance.   

The issue before the Supreme Court is the scope of permissible jury instructions.  The trial court refused to instruct the jury on a mixed-motive defense.  In a mixed-motive case, to establish “because of” causation, the plaintiff’s initial burden is to prove that discrimination was “a” motivating factor in the adverse employment action (i.e., termination in the Harris case) even though other factors may also have been involved.  The employer then has an opportunity to demonstrate that legitimate other reasons came into play so as to defeat liability.  The trial court refused to instruct the jury on a mixed-motive defense and thereby deprived the City of its right to have the jury decide whether the City had proved its legitimate, non-discriminatory reasons for terminating Harris.  In other words, the jury was not instructed whether it could determine if Harris would have been terminated for legitimate reasons even though the City had knowledge she was pregnant before she was terminated.

This case has far reaching implications for all California employers, and especially for government employers.  The State Supreme Court has held that public employment in California is governed by statute, not by contract, and thus permanent government employees must be afforded due process protections before they can be terminated from public employment.  However, government entities can release probationary employees without cause and without the right to appeal.  Probationary employees can be terminated for any reason, so long as the reason is not in violation of the law.

The probationary period is an integral part of the recruitment, hiring and evaluation process.  This time period is relied upon by government employers as an opportunity to gauge objective and subjective factors relating to work performance during the period before the employee gains permanent status.  Failing to apply the mixed motive defense can severely hamper this opportunity.  For example, suppose a probationary employee is nearing the end of her probationary period and three supervisors gather to evaluate her performance to determine whether the employee will be awarded permanent status.  Assume that two of the supervisors describe compelling and overwhelming legitimate, nondiscriminatory reasons to terminate the employee during the probationary period.  However, assume that one of the supervisors makes a discriminatory remark about the employee’s gender during the meeting.  (That supervisor should surely be counseled and disciplined for making such an inappropriate remark.)  Assume further that the employee is still terminated during the probationary period because of the legitimate and nondiscriminatory performance based reasons, and despite the discriminatory remark about her gender.  This hypothetical serves as an example of the need for public employers to be able to assert the mixed motive defense.  The public employer’s hands should not be tied where one supervisor, for example, makes a stray discriminatory remark where compelling and legitimate reasons exist and are relied upon for the dismissal of an employee.  Moreover, the public employer’s hands should not be tied where the same decision would have been reached even if the discriminatory remark had not been made. 

Public employers cannot afford to let probationary employees gain permanent status unless the employee’s performance warrants it.  This is particularly important given California’s budgetary problems that require public agencies to do more with less.  The trial court’s refusal to instruct the jury on a mixed motive defense deprived the City of its right to have the jury decide whether the City had proved its legitimate, non-discriminatory reasons for terminating Harris even though the City had knowledge she was pregnant before she was terminated.

NLRB Case Involving Firing Over Facebook Post Settles

Posted by Elizabeth Arce on February 11, 2011

Person-Typing-on-Laptop.jpgThis week the National Labor Relations Board (NLRB) announced that a settlement has been reached in a closely watched case involving the firing of an ambulance service employee for posting negative comments about her supervisor on her Facebook page.  This case created a buzz among employers throughout the nation.  Given the prevalence of social media through platforms such as blogs, MySpace and Twitter, every employer, whether public or private, with or without unionized employees, could have potentially been affected by the outcome of the case. 

The ambulance service employee was asked by her supervisor to respond to a customer complaint about her work.  The employee then requested union representation which was denied.  Later that day, the employee posted negative remarks from her home computer about her supervisor on her personal Facebook page.  Her criticisms drew supportive responses from co-workers which caused the employee to post further negative comments about the supervisor.  The employer, American Medical Response of Connecticut (AMR), suspended and ultimately terminated the employee on the grounds that the Facebook postings violated the company’s internet policies.

The NLRB’s investigation into this incident resulted in a finding that the employee’s Facebook postings constituted protected concerted activity under the National Labor Relations Act (NLRA) and that AMR’s “overly broad” blogging and internet posting policies interfered with employees’ right to discuss the terms and conditions of their employment with co-workers and others.  The NLRB noted that AMR’s policies prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company in any way over the internet without company permission.  The NLRB also charged AMR with illegally denying the employee union representation.

Under the terms of the settlement, AMR agreed to revise its policies to ensure that “they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.”  AMR also stated that it would not deny employee requests for union representation in the future and that employees would not be threatened with discipline for requesting representation.

Although this case resulted in a settlement, scrutiny of employer social media policies will continue.  Jonathan Kreisberg, Regional Director of the NLRB’s Hartford office, told the Associated Press that the Board is looking at a growing number of complaints that explore the limits of corporate internet policies.  Thus, we encourage all employers to review their social media policies to ensure they balance the employer’s needs with the right of employees to discuss working conditions regardless of whether their employees are represented by a union.  While not covered by the NLRA, speech by non-unionized employees still raise constitutional issues relating to privacy and free speech.  Employee speech may also be protected by federal and state anti-retaliation laws relating to whistleblowers.  Finally, California employers are prohibited from taking an adverse action against employees for disclosing the amount of their wages and working conditions under Labor Code sections 232 and 232.5.  While recent California appellate decisions call into question whether these Labor Code provisions apply to public employers, public agencies should err on the side of caution and comply with them until there is a court ruling that expressly excludes public agencies from coverage.  

U.S. Supreme Court's Expansion Of Title VII Protections To Third Parties Is Just Business As Usual For California Employers

Posted by Elizabeth Arce on February 10, 2011

The Supreme Court’s recent ruling in Thompson v. North American Stainless has caused some commentators to sound the alarm warning employers of employee friendly courts and impending lawsuits as a result of the decision.  Hans Bader of the Washington Examiner wrote that the Thompson decision shows the Supreme Court is not pro-business.  Tim Gould of the website HRMorning.com warns that the decision will result in increased employer exposure to retaliation lawsuits.  However, for California employers, the ruling represents just another pro-employee decision which is part of doing business in California’s pro-employee environment.

In Thompson, Miriam Regalado and her fiancé Eric Thompson were employees of North American Stainless (NAS).  Regalado filed a charge alleging sex discrimination against NAS with the Equal Opportunity Commission (EEOC) which, in turn, notified NAS of the complaint in February 2003.  Within weeks of learning of the charge, NAS fired Thompson.  Following his termination, Thompson filed his own EEOC charge and sued NAS under Title VII of the Civil Rights Act of 1964 claiming the company fired him to retaliate against Regalado for filing her EEOC charge.  Both the District Court and the U.S. Court of Appeals affirmed the dismissal of Thompson’s Title VII claim on the ground that the law does not permit third party retaliation claims.  The Supreme Court reversed the Court of Appeals’ decision on the ground that NAS’s firing of Thompson was retaliatory and that he could sue NAS for violation of Title VII. 

The Court reasoned that the purpose of Title VII’s anti-retaliation provision is to prohibit any employer action that might dissuade a reasonable worker from making or supporting a discrimination charge.  Thus, the Court thought “it obvious” that a reasonable worker might be dissuaded from filing a complaint against her employer if she knew her fiancé would be fired.  Although the Court declined to identify “a fixed class of relationships” for which third party reprisals are unlawful, it indicated that a close family member who is fired will “almost always” be able to assert a claim under Title VII while a “mere acquaintance” will “almost never” be able to do so.  The Court also reasoned that Thompson was a “person aggrieved” for standing purposes because he fell within the “zone of interests” protected by Title VII.  Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions.  Finally, the Court found Thompson was not an accidental victim of retaliation.  Rather, NAS intentionally fired him in order to punish Regalado for filing her EEOC charge. 

While the Thompson decision is significant and will undoubtedly spawn more lawsuits nationwide, employment claims by third parties are not an entirely new concept in California.  Government Code section 12926(m), part of California’s Fair Labor and Employment Act (FEHA), already gives employees the ability to sue their employers over adverse actions taken against them because of their association with “another person” in a protected class (e.g. race, marital status, sex).  However, it remains to be seen whether this FEHA provision would provide a basis for a claim such as the one asserted by Thompson.  Thus, employers should make sure that the harassment training provided to employees, supervisors and managers includes a discussion which educates them on the possibility of third party employment claims.  Employers should also consider revising existing anti-harassment policies to explicitly prohibit discrimination, harassment and retaliation against an employee who associates with a person, including another co-worker, in a protected class.  

The Bully In The Office

Posted by Elizabeth Arce on February 08, 2011

Bully.jpgIt seems that every time you pick up a newspaper or tune into your local news there are stories of students being bullied by their classmates.  Last year, in particular, the news was dominated with headlines of students driven to suicide because of bullying.  For example, Rutgers University student, Tyler Clementi, killed himself after his roommate and another student secretly taped and streamed video of him having sex with another man.  Massachusetts high school student, Phoebe Prince, hanged herself after several older girls harassed for dating a popular football player.  Bullying is even a topic in current television programs such as “Glee.”  These stories caused me to wonder whether bullying was just a schoolyard problem.  Could bullying actually exist in the workplace?

It did not take long for me to discover the story of Kevin Morrissey who was the managing editor of the University of Virgina’s journal the Virginia Quarterly Review.  Morrissey allegedly committed suicide as a result of bullying from his boss.  Although Morrissey’s family admits he suffered from depression, they insist he took his own life after the university ignored several telephone calls from him complaining of bullying. 

The Workplace Bullying Institute, a pro-employee organization, claim bullying is a real and growing problem in the workplace.  The Institute also commissioned the research firm Zogby International to collect data on the topic of workplace bullying.  The results of the survey show that 35% of workers have experienced bullying firsthand, that 62% of bullies are men, and that 58% of their targets are women.  In addition, bullies who are women target other women in 80% of cases. 

Lawmakers have also introduced anti-workplace bullying legislation in numerous States without success.  However, New York became the first State last year to come closest to passing a bill that would allow workers to sue for damages caused by workplace bullying.  The New York Senate passed the Healthy Workplace Bill which establishes a civil cause of action for employees subjected to an abusive work environment.  The bill defined “abusive conduct” as repeated infliction of verbal abuse, verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.  The State Assembly voted to table the bill.  Proponents of the bill vowed to renew their efforts to enact this legislation this year.

The problem of workplace bullying will not be solved by more legislation.  Such laws will only encourage employees to find bullying where none existed.  Ordinary interoffice conflicts and personal disputes would give rise to actionable claims.  These laws may also chill the employer’s ability to deal with legitimate employee performance issues for fear of a lawsuit.  However, because current headlines regarding bullying will continue to fuel efforts to enact anti-bullying legislation, employers may be on the verge of having to deal with specific anti-bullying laws for the workplace.  Consequently, there are steps employers can take to address possible bullying in the workplace.  For example, anti-harassment policies typically protect against harassment based on a protected class such as race or gender.  As a result, employers should consider revising existing policies, codes of conduct or personnel rules to expand their protections against harassment beyond conduct based on protected class status.  Employers should also respond to bullying complaints by promptly investigating and correcting the alleged abusive conduct.  Finally, managers and supervisors, who act as leaders within their agencies, should always be mindful of creating a professional work environment that fosters courteous and respectful communication.

Liebert Cassidy Whitmore Founding Partner, John Liebert, Passes Away

Posted by Guest Author on February 07, 2011

This guest post was authored by Liebert Cassidy Whitmore

John-Liebert-web.jpg

John Liebert, pre-eminent public sector labor relations attorney and founding member of Liebert Cassidy Whitmore passed away on Monday, February 7, 2011.  He was 81.

John emigrated as a boy from Nazi Germany, living in Holland when Hitler struck, and navigating to New York on ships that were attacked by German U-Boats.  He entered with thousands of refugees through Ellis Island with his mother and two brothers, to start a whole new life in America.  John grew up in New York City and earned his Bachelor's degree from the University of California, Berkeley and his Juris Doctorate from the Hastings School of Law, University of California, San Francisco.

John built his outstanding reputation in public sector labor relations by successfully representing hundreds of public agencies - including cities and counties, schools, colleges and special districts - throughout California, Arizona, and Nevada.  He negotiated hundreds of labor agreements; his expertise encompassed the full sweep of public sector labor and employment law. John is also known for pioneering and establishing labor and employment training programs throughout the state of California.

John began his legal career with the City of Sacramento, first serving as a Deputy City Attorney, then as Assistant City Manager and finally as Labor Relations Counsel.  He left Sacramento to join Paterson & Taggert, where he met Dan Cassidy.  Together, along with four other attorneys, John and Dan formed our firm in 1980 and grew it into California's leading public management labor, employment, and education law firm with over 70 attorneys in four offices.  John served as the firm's first Managing Partner before turning the reins over to Melanie Poturica upon his transition to part-time retirement in 1995.

During the course of his career, John served as a spokesperson for the League of California Cities, National Public Employer Labor Relations Association, and the California State Association of Counties, testifying before legislative committees and federal and state executives on topics ranging from application of the Fair Labor Standards Act to, and extension of the jurisdiction of the Public Employment Relations Board over local agencies.  He was recognized by both the National and California Public Employer Labor Relations Associations with their highest awards of excellence. 

John was an accomplished writer and lauded speaker.  He made hundreds of presentations on a wide variety of employment and labor topics to many professional organizations throughout the country, and thousands of public sector managers continue to benefit from his development of our firm's Employment Relations Consortiums

John has remained very active in the firm, providing mentoring to our attorneys and serving as the sole editor of our monthly Client Update newsletter since its inception 30 years ago. 

John was preceded in death by his wife, Marijke and son, Doug.  He is survived by son Drew and daughter Deb, 9 grandchildren, 2 great grandchildren and hundreds of colleagues, friends and mentees who will forever be in his debt and collectively strive to honor his legacy.

The family requests that any remembrances be made to the American Diabetes Association.

Recent Developments Regarding Layoffs: What's New?

Posted by Jeffrey C. Freedman on February 03, 2011

Two recent developments in California law involving the layoff of public employees have raised questions:

  • First, the California Supreme Court decided that public employers are not required to negotiate with their employees’ unions about the decision to lay off employees.
  • Second, a Superior Court judge in Los Angeles approved the settlement of a lawsuit between the American Civil Liberties Union and the Los Angeles Unified School District which approved the layoff of teachers other than by strict seniority.

Supreme-Court.jpgThe Supreme Court decision simply clarified the law; it did not announce a new legal standard.  Employers have never been required to meet and confer on the question of whether employees could be laid off in a reduction of force due to economic concerns.  That has always been viewed as a pure employer prerogative.  However, it has equally been true that employers are required to meet and confer, on request, over issues relating to the impact of the layoffs.  These issues can concern the timing, the identity of those to be laid off, issues relating to their pay and benefits, severance pay and the like.  Indeed, the Public Employment Relations Board has held that these impact issues must be resolved before the layoffs can be implemented.

The LAUSD lawsuit is another matter and agencies should be cautious, and seek legal advice, before determining to layoff employees other than by strict seniority.  It must be remembered that the LAUSD case was not a trial on the merits; it was a hearing on whether a previously negotiated settlement agreement was fair and equitable.  The parties to the litigation included the ACLU, the School District, United Teachers of Los Angeles (UTLA), which represents the certificated employees of LAUSD.  UTLA sought to overturn the settlement because it allowed layoffs other than by strict seniority.  The settlement “walled off” 45 schools in low income and disadvantaged areas of the District.  The sole issue before the court was whether the settlement was fair and equitable; the Judge concluded that it was. 

Many labor agreements require the use of seniority in making decisions such as identifying those to be laid off in a reduction in force.  In the case of general law cities, the Government Code (section 45100) requires that layoffs for financial reasons be according to seniority.  There is no similar statutory provision applicable to counties or to special districts in general.  Agencies need to consult their rules, labor agreements and legal counsel before laying off employees.

The LAUSD case involved very unique facts.  The District needed to implement layoffs for cost cutting purposes and the ACLU argued that the use of strict seniority would negatively and detrimentally impact lower income and otherwise disadvantaged school children.  The parties reached a settlement which protected the school sites in question.  The Union intervened in an effort to protect the strict seniority principle and unsuccessfully attempted to overturn the settlement.  An appeal by UTLA is likely.

Superior Court Approves LAUSD Settlement Protecting Low-Seniority Teachers At 45 Struggling Schools

Posted by Guest Author on February 01, 2011

This guest post was authored by Mary Dowell and Meredith Karasch 

Students-in-Classroom.jpgThe Los Angeles Superior Court recently approved a class action settlement that allows LAUSD, in a layoff, to skip teachers at 45 schools in order to prevent constitutional violations in the right of students to be provided with a minimum level of education.  This case has received a great deal of attention for its effect of limiting seniority based layoffs in LAUSD.  The teacher’s union, UTLA, fought this settlement vigorously to protect teachers’ seniority rights in a layoff, excluding all other factors.

The suit began when students sued to enjoin teacher layoffs at schools in Watts, Boyle Heights and Pico-Union, alleging the seniority based layoffs violated their right to a minimum level of education the California Constitution guarantees.  These schools were hard to staff and undergoing reform efforts, and thus teachers were energetic and new.  The layoffs eliminated these teachers who had low seniority but were working to reform the schools.  Vacancies created by layoffs caused instability because the teachers on the reemployment lists did not want to work at these schools and many classes were staffed by short and long term substitutes. 

The parties negotiated a settlement, allowing LAUSD to skip all teachers at 45 “Targeted Schools,”  chosen based on low performance, high teacher turnover, and the growth in test scores over time, indicating reform efforts.  UTLA (who LAUSD brought in as a defendant) opposed the settlement because it violated seniority rights.  The judge determined the settlement was fair and legal.

The settlement is historic for several reasons.  First it allows skipping based on a school, rather than by teacher as is normally done.  Additionally, the settlement is based on a provision in the education code allowing skipping “for purposes of maintaining or achieving compliance with the constitutional requirements related to the equal protection of the laws.”  However, no case has defined the right a minimum level of education, nor has any court interpreted this provision to apply to the rights of students as opposed to teachers.  The judge found that the law’s requirement that layoffs occur on a strict seniority basis includes the principle that layoffs cannot violate students’ constitutional right to an education. 

Although the case ended with a settlement, large urban school districts which have schools with qualities similar to the “Targeted Schools,” may be able to use the judge’s findings to skip teachers at under-performing schools with high teacher turnover.  It is not clear whether this theory will extend beyond the K-12 school context, but if agencies believe a seniority based layoff will impact constitutional rights of third parties, they should consult counsel.  Liebert Cassidy Whitmore attorneys are available to advise any clients who may be faced with layoffs.

Will 2011 Be An "E-Ticket" Ride In Sacramento? The New Governor's Labor Relations Agenda Remains Unclear

Posted by Jeffrey C. Freedman on February 01, 2011

Governor Jerry Brown began his term as California’s Governor this January announcing ambitious plans to restructure state and local finances.  His proposals have set off a fire storm of controversy.  At this point, he has yet to announce any plans to propose new legislation dealing with employment and labor relations issues.  However, his appointment of long term advisor Marty MorSacramento-Town-Hall.jpggenstern and attorney Ronald Yank to high ranking positions suggests an ambitious agenda may be on the way.

If the past is prologue, then the next few years may be a wild ride for California employers.  With Brown’s resounding victory and the Democrats holding 60% and 65% majorities in the State Senate and Assembly respectively, California employers in both the public and private sectors may have cause to hold tightly to their seats as we careen at high speed into this new decade.

Is the past prologue?  If so, get ready!  When Jerry Brown was first elected Governor in 1974, the Legislature passed and he signed a number of bills which permanently changed the labor relations landscape in California.  Three major statutes were passed governing employment relations in public employment, creating the Public Employment Relations Board (PERB) and establishing collective bargaining rights for state, public university and public school (K-14) employees.  A major private sector bill created the Agriculture Labor Relations Act which for the first time gave collective bargaining rights to farm workers.

When Gray Davis was Governor (1999-2003) the labor relations agenda was even heavier.  Davis signed bills which reinstated the eight hour day in private employment for overtime purposes, significantly increased the minimum wage, created paid family leave, strengthened prevailing wage laws, added the California worker notification law (California WARN) when mass layoffs and plant closures occur, and revised the California law applicable to city, county and special district employees (the Meyers-Milias-Brown Act) to place these agencies under PERB’s jurisdiction and to require employer recognition of labor unions based solely on petitions without the need for elections.  The Davis’ Administration also approved increased retirement benefits under the Public Employment Retirement System (PERS) and twice enacted statutes allowing for binding interest arbitration in police and fire labor negotiations.  (Both of these enactments were later declared unconstitutional.)

Will Jerry Brown II bring a similar legislative agenda as he did before and as occurred under Davis?  Only time will tell.

As a matter of full disclosure, it must be noted that Republican governors have not rebuked every legislative advance for employees.  It was Ronald Reagan who signed the Meyers-Milias-Brown Act in 1969, giving local government employees collective bargaining rights for the first time in California.  Nonetheless, it is clear that the labor agenda has fared much better under Democratic Governors than it has under a Republican.  The history of the next four years remains to be written.