U.S. Supreme Court Upholds Idaho Law Re Union Political Activities Checkoff

I know I'm posting late on this, but I have a strong need to have full coverage of the U.S. Supreme Court's employment law opinions, even the ERISA cases. I hope I didn't inconvenience my devoted followers, and the copycats who don't read the advance sheets themselves .... (Hi!)

This one is a labor / First Amendment crossover. A union claimed Idaho law, prohibiting deductions from employees' pay for union political action funds, is unconstitutional in violation of the First Amendment. The Court disagreed and upheld Idaho law.

Here's the issue and the Court's resolution, as framed by the Court itself:

Under Idaho law, a public employee may elect to have a portion of his wages
deducted by his employer and remitted to his union to pay union dues. He may not, however, choose to have an amount deducted and remitted to the union’s political action committee, because Idaho law prohibits payroll deductions for political activities. A group of unions representing Idaho public employees challenged this limitation. They conceded that the limitation was valid as applied at the state level, but argued that it violated their First Amendment rights when applied to county, municipal, school district, and other local public employers.

We do not agree. The First Amendment prohibits government from “abridging the freedom of speech”; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression. Idaho’s law does not restrict political speech, but rather declines to promote that speech by allowing public employee checkoffs for political activities. Such a decision is reasonable in light of the State’s interest in avoiding the appearance that carrying out the public’s business is tainted by partisan political activity. That interest extends to government at the local as well as state level, and nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions for political activities.

So, there you have it. The case is Ysursa v. Pocatello Ed. Assn. and the opinion is here.

Another Court of Appeal Decision on Tip Pooling

Did lawyers file a whole bunch of class actions on tip pooling at about the same time a year or two ago? Apparently so. Several judicial opinions have now emerged. They're not good for the plaintiffs.

We recently posted about Budrow v. Dave & Buster's here. There, the court decided that a restaurant's requirement that cocktail waitrons tip out a bartender was lawful.
Now, in Etheridge v. Reins International California, Inc. opinion here, the court of appeal reached the same conclusion, albeit with a slightly different formulation. Tip pooling, the court held, is fine when the tips are doled out to employees in the "chain of service." It is still forbidden to involve managers / supervisors in tip pools. But the bussers, bar backs, and hosts can breathe again.

Another Arbitration Agreement Bites the Crust

er... Dust, too.

Western Pizza owns some Domino's franchises. Their arbitration agreement had a class action waiver (illegal). It also had an arbitration selection procedure specifying a certain "dispute resolution service" that had only one arbitrator employed. So, that kind of took the surprise out of who would conduct the arbitration. The court struck down the arbitration agreement as unconscionable. Not a surprise given the current state of arbitration case law.

Interestingly, though, the court of appeal held that the company's "small claims" procedure, permitting relaxed discovery, evidence, and hearing procedures for claims worth less than $50,000. The court noted that such things are normal in arbitration anyway. Also, the court did not find unconscionable the agreement's silence on discovery procedures and no requirement of a written award, holding these were "implied" in the agreement under Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83.

The case is Sanchez v. Western Pizza Enterprises, Inc. and the opinion is here.

Court of Appeal Holds Statements Regarding Termination Were Not Defamatory "Per Se"

Slander per se means that a false statement is actionable without proof of actual damages. In California, the law defines the types of slander that count as "per se," which include a statement that:

[¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; [¶] 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; [¶] 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; [¶] 4. Imputes to him impotence or a want of chastity . . .

Mike Regalia was a senior executive. When he was fired, the senior management said that he demanded a "finders fee" or "commission" on a sale without a justification, and that people would not work for him and had threatened to leave. He sued for, among other things, defamation. A jury decided he had been slandered and awarded him $750,000 for damage to his reputation without proof of actual economic loss.

The Court of Appeal disagreed. It is the court's job to decide if a statement is slanderous "per se" or if proof of damages is required (called slander per quod). Here's the court's analysis:

A person can make a claim for money that is rejected as not being justified, and still not be viewed as having committed an act that reflects negatively on that person. Thus a statement about such a claim does not necessarily directly injure him in his profession, trade or business (Correia v. Santos, supra, 191 Cal.App.2d at p. 852) so as to fit within subdivision (3) of Civil Code section 46. (See Gang v. Hughes (9th Cir. 1954) 218 F.2d 432 [alleged statements that a plaintiff‟s attorney refused to settle a case until he was paid and that he was paid because he demanded immediate payment not slander or libel per se].) Likewise, the statement that Regalia was fired because other employees would not work for him and would leave if he remained employed does not, on its face, clearly fall within subdivision (3) of Civil Code section 46. That one or more employees do not want to work for someone, without more, again, does not necessarily reflect adversely on the person. The employee or employees might not want to work for a person because of the person‟s work ethic or rectitude, or legitimate business policies.

Managers have the right to explain to employees why they have discharged someone. There are good business reasons to do so, such as to inform employees what performance standards govern employment. If statements such as the above were actionable as slander per se, no employer would ever explain why someone was no longer employed unless it wished to risk liability without proof of damages. Employees, on the other hand, are protected from false statements if they are actually injured. So, the court struck a reasonable balance here it seems to me.

This case, however, reinforces the need to be factual when explaining someone's departure. Had they called the ex-employee a "thief" or an "incompetent" manager, that might have been a different story. And neutral references are still the safest policy.

The case is The Nethercutt Collection v. Regalia and the opinion is here.

New COBRA Notices Available

Employers covered by COBRA have to comply with the new COBRA requirements included in the "ARRA" stimulus bill. We wrote an article about this here, and we posted here.

The US Department of Labor has issued model notices to aid compliance. Those are here.

DGV

California FEHC Compares ADA, ADAAA and FEHA

The California Fair Employment and Housing Commission issued a handy chart comparing the original Americans with Disabilities Act, the 2008 amendments (ADAAA), and the Fair Employment and Housing Act's coverage of individuals with disabilities. Here is the chart.

California FEHC Compares New FMLA Regulations with CFRA/PDL

The California Fair Employment and Housing Commission issued a helpful comparison chart covering the new FMLA regulations and their effect on California's Family Rights Act and Pregnancy Disability Leave law. Here it is.

Court of Appeal Clarifies California's Tip Pooling Law

If you have worked in a restaurant, then you know. Most restaurants require waitrons (servers) to "tip out" busboys, bartenders, runners, hosts, and/or others involved in the chain of service. If you gain the reputation for stiffing the busboy, bartender, etc. (under-tipping), you will be punished by no water, wrong drink orders, forgotten bread for your table, etc. So, smart wait staff tips out correctly.
In California, though, there is a statute addressing the practice of "tip pooling." The primary purpose of the law is to prevent management from taking a dip into the tip pool, as it were.
Some folks believe that tips by law are retained only by the server who collects it, or who engages in "direct table service."
The Court of Appeal put that interpretation to rest in Budrow v. Dave and Buster's. There, a cocktail waiter objected to tipping out the bartender. No wonder he lasted a month, or three months as he argued.
Anyway, the opinion is here. I'll bet you some side work that the Justices themselves or the court staff pulled a few doubles in their day.

GINA Regulations Coming

The EEOC has proposed regulations implementing and interpreting the Genetic Information Nondiscrimination Act of 2008 (GINA). The draft covers definitions of terms used in the law, what constitutes discrimination, how to protect genetic information in employers' possession, and MORE!

The EEOC is inviting the public to comment on the proposed regulations. If you want to access through the EEOC's own website, it's not posted as of this writing. But it will appear here. As of now, you can view the document here.

Thanks to Ross Runkel for reporting this before it happened.

DGV