Tuesday, February 21, 2017

A Victory for Workers in Trump’s Puzder Defeat

America’s workers won when Donald Trump's first choice for Secretary of Labor Andrew Puzder recently withdrew his nomination, after it appeared unlikely that Puzder could get even 50 votes in the Republican-controlled Senate. Puzder, the CEO of Carl's, Jr. and Hardee's fast food restaurants, had the kind of baggage that would have sunk any nominee in a previous administration: his ex-wife had stated on Oprah that Puzder abused her,[1] Puzder employed an undocumented housekeeper and failed to pay taxes until after his nomination, and Puzder had long defended his restaurant chains’ hyper-sexualized ads featuring swimsuit models drooling over burgers.

More to the point, though, Carl's, Jr. and Hardee's restaurants have a long record of wage violations and workplace sexual harassment, and Puzder is a committed opponent of a federal minimum wage increase from the current, unlivable rate of $7.25 per hour. Puzder's support for moderate immigration reform -- at odds with the Trump Administration -- seemed informed more by a desire to increase the supply of cheaper, exploitable labor rather than any humanitarian aims. In short, putting Puzder in charge of the Department of Labor would have been an affront to America’s working families, more like a charter for a new Department against Labor.

Puzder’s withdrawal is also an encouraging development because it shows that at least some of the old rules still apply to Trump, and, further, shows some cracks forming in Senate Republicans’ support for the Administration and its nominees, regardless of their qualifications (or lack thereof). Reportedly, Senators Collins (Maine) and Murkowski (Alaska) expressed serious reservations after viewing the tape of Puzder’s ex-wife on Oprah. Several other Republican Senators were apparently more concerned about the undocumented housekeeper than Puzder’s alleged spousal abuse. Regardless, the signals from certain Senate Republicans (and a united Democratic party) as to Puzder’s disqualifying biography evoke a return to previous norms concerning suitability for high public office.

Trump announced his replacement nominee Alexander Acosta the very next day at the start of a 77-minute press conference that subsequently devolved into the President reacting defensively and returning to his standard line, when confronted with his failings, of berating the reporters who dared to question him.

Acosta is the current dean of Florida International University Law School, served in the Civil Rights Division at the Department of Justice during the George W. Bush Administration, and served on the National Labor Relations Board. If confirmed, he would be the only Hispanic-American in Trump’s cabinet.

Acosta has considerable government experience, having been confirmed by the U.S. Senate three times, and is clearly more qualified to run his assigned agency as compared to many of Trump’s “tremendous” nominees (see Betsy DeVos, Ben Carson, Rick Perry). Acosta has testified in the Senate against the anti-Muslim discrimination, which seems to be a unifying theme among many of Trump’s supporters. 

Acosta’s tenure in the DOJ’s Civil Rights Division during the Bush Administration is cause for concern, given the rampant politicization of personnel decisions during his tenure. Acosta also has no record protecting workers’ rights, though Trump had pretended during the campaign that as President he would be a working-class champion. Still, Acosta is the kind of nominee one could expect to see in any Republican administration, rather than being just another of Trump's rich, white friends who is patently unqualified for high government service.

The collapse of Puzder’s nomination, shortly following the resignation of National Security Advisor Michael Flynn, is another major setback for the chaotic Trump Administration, and another victory for our resistance. The replacement nomination of Acosta, a fairly conventional Republican pick who will likely be easily confirmed, shows how much political capital Trump has already lost due to the proliferation of scandal, incompetence, and mismanagement during Trump’s first month in office.





[1] Puzder denies the abuse allegations, and his ex-wife has since recanted them.

Friday, February 10, 2017

Ninth Circuit Protects the United States Against Trump’s Unconstitutional, Racist “Muslim Ban” Power Grab


Yesterday the Ninth Circuit protected the constitution that is the basis for our country’s democracy against an administration that seems to scoff at all constitutional limitations on its power. The Court rejected the administration's appeal of a temporary restraining order (TRO) blocking Trump’s “Muslim Ban” Executive Order (now restyled as a “travel ban” on residents from certain countries, which all just happen to be majority-Muslim). The concise but eloquently written opinion is here

Most importantly, the Court thoroughly debunked the administration’s astonishing assertion that the President has “unreviewable authority” when it comes to immigration policy. (Slip Op. at 13). “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the Court held. The Court cited the Supreme Court’s holding in Boumediene v. Bush, 553 U.S. 723, 765 (2008), that the “political branches” lack “the power to switch the Constitution on or off at will.”

As the Ninth Circuit explained: “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.” Slip Op. at 14. Both Chadha and Zadvydas v. Davis, 533 U.S. 678, 695 (2001) made clear that the “political branches” (congress and the executive) have powers over immigration but that these are restricted by important constitutional limitations – among others, those raised with the Muslim Ban, including Due Process, the Establishment Clause, and the Equal Protection Clause.

As the Ninth Circuit held, this is “no less true when the challenged immigration action implicates national security concerns.” Slip. Op. at 16, citing, inter alia, Ex Parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”). The Court wrote that the Government’s “authority and expertise in [such] matters do not automatically trump [pun intended?] the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. Slip Op. at 17, citing, inter alia, Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).

Ultimately, the Court rightly held that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Slip Op. at 18.

Adjudicating the Trump administration’s effort to overturn the District Court in Seattle’s TRO against the Muslim Ban, the Ninth Circuit focused on whether Trump is likely to succeed in overcoming Due Process and other challenges to the Ban, finding that Trump’s Executive Order is likely to be an unconstitutional loser. Slip Op. at 19. The administration asserted – again, showing utter disregard for the foundational document of our republic – that those affected by the Ban have no Due Process rights (i.e., notice and a hearing prior to restricting an individual’s ability to travel). Slip Op. at 19-20. On the contrary, though, the Ninth Circuit held that procedural protections of the Fifth Amendment’s Due Process Clause “are not limited to citizens” but apply to all “persons” within the United States, “including aliens” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Slip Op. at 20, citing Zadvydas, 533 U.S. at 693.

The administration disingenuously pretended that the TRO was moot because, several days after Trump issued the Muslim Ban Executive Order, he had to backtrack with his White House counsel (McGahn) and issue “Authoritative Guidance” saying it was not meant to apply to lawful permanent residents. The Ninth Circuit did not buy it, stating, “[W]e cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” Slip Op. at 21. Aside from the fact that White House counsel has no authority to contravene, interpret, or change an Executive Oder, “in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” Slip Op. at 21. In other words – even if the Court had the ability to believe the administration saying it would implement the Ban in some less offensive manner, why would anyone believe anything this administration says?

The administration’s attorneys did not do themselves any favors with their hollow arguments to the Ninth Circuit. For example, the administration sought to argue that the states had no standing to challenge the Muslim Ban, when, of course, the states are impacted in innumerable ways by the Ban, e.g., that the Ban directly impacted numerous public universities' students’ ability to pursue studies and research, and harmed their families as well. Slip Op. at 12. As another example, the administration argued that Kleindienst v. Mandel, 408 U.S. 753 (1972) precluded the Court from reviewing the President on an immigration-related issue by misquoting the opinion, which related only to denial of an individual visa, rather than a nationwide immigration policy. Slip Op. at 15

Most significantly, as to the administration’s flimsy arguments, the Ninth Circuit found:

-that “the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.” Slip Op. at 22-23.

- that the administration “submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years….The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Slip Op. at 26. And

- in providing no evidence to support its Muslim Ban, the administration asserted that “’[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.’ But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that.” Slip Op. at 27 n. 8.


The Court rested on the likely violation of Due Process so did not need to decide on the likely outcome with respect to the Muslim Ban’s unlawful preference for some religions over others or violations of Muslims’ constitutional rights. Slip Op. at 26. However, significantly, the Ninth Circuit did note “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence [the plaintiff states] claim suggests that the Executive Order was intended to be that ban,” and held that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Slip Op. at 25. In other words, when the challenged Ban is fully and finally considered, the administration will not be given a free pass on its new spin on the Ban (that it is not a “Muslim Ban”). Also see Saturday Night Live’s spoof on the administration running away from the “Muslim Ban” here

Despite its understandable decision not to confront yet the obvious religious discrimination perpetrated by Trump’s Muslim Ban, the Ninth Circuit did not ignore the human impact of the unlawful Executive Order. As the Court explained, “When the Executive Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These are substantial injuries and even irreparable harms.” Slip Op. at 28.


Ultimately, the Ninth Circuit’s decision has preserved our integrity as a nation and stands as a bulwark in defense of the constitution. Because of the Ninth Circuit’s decision, we can look ourselves in the mirror as Americans and not feel like a nation of bigots and hypocrites. Let us pray that more courts have the courage to follow the Ninth Circuit’s lead in the days, months, and years ahead, facing down this administration's march toward tyranny. 

Tuesday, January 31, 2017

Trump's Totalitarian Playbook and How to Defeat It


With his Muslim ban, Trump has begun to identify his adversaries – both within the federal government and outside. He is dehumanizing people from many countries – top scholars are no different from terrorists, in his sinister eyes. He has begun undermining and stigmatizing the media, hoping he can work his foulest schemes in secrecy while filling our consciousness with his abundant propaganda. He has simultaneously been undermining the political process, with a sham storyline about voter fraud against him that led him to lose the popular vote very substantially – when, in fact, if there was any voter suppression, it was probably of his side’s doing, misleading voters.  

Trump’s next steps are: 

1) undermine and de-legitimize political adversaries – will he send death squads for legislators who oppose him, or shut down the whole Senate, or just  throw up so many lies about his opponents that they lose political clout all together; 

2) a catastrophic event, like the burning of the Reichstag in Germany in the 30’s – a monument may crumble, people may die, and Trump will use the tragic moment in a pre-planned seizure of power, maybe martial law, telling Americans they must pull together behind him and against our enemies here and abroad. Remember how America came together after 9/11? Now imagine that kind of power in the hands of a despot far worse than Bush; 

3) disempower the civil rights lawyers and the judiciary – he will sabotage the courageous trial lawyers and civil rights advocates who seek to hold him accountable by drowning them with endless falsehoods, appealing to populist sensibilities (and possibly anti-Semitism) against "greedy lawyers," "ambulance chasers" and the like. Meantime, any courts that try to stand in his administration’s way will be excoriated – only kangaroo courts tolerated. We saw a bit of this from him pre-election with his racist remarks about the Latino Indiana judge who ruled against him;  and

4) delegitimize the political parties– in the mid-term elections, possibly after the event that mirrors the Reichstag burning, Trump will say he is the only answer, only those loyal to him are loyal Americans, leaving no room for anything but sycophants and the terrorized masses.

The way to resist is to resist. Sally Q. Yates said no to the Muslim ban as Acting Attorney General, and lost her 30-year career. Will people follow her example and say “no,” and find a new path in fighting the totalitarian, or will he cow his opponents with his violence? If, in the wake of Yates’ retaliatory termination, we all stand with her – if the 100 current State Department resistors become 10,000 – then we can stop Trump. His path to dictatorship depends on us becoming subservient, seeing no other way, losing the will to fight, circling our wagons and protecting what’s ours.

Let us, instead, heed the words of George Santayana, that those who forget history are doomed to repeat it. Trump can become very powerful, or can collapse under his own bloated mass if he does not have enough people to prop him up while the rest of us look away.

We will fight the new American Revolution if a tyrant comes to take away our democracy. Or, as we chanted at the recent Women’s March, a people united can never be defeated.

Donald Trump - you are nothing, compared to all of us.


Friday, January 20, 2017

California Supreme Court Offers Clear Statement: A Rest Period Must Be a Period of Rest


In the final week of 2016, the California Supreme Court handed a victory to workers across the State by clarifying that employers may not require hourly employees to remain on call during mandatory 10-minute rest periods. The Court grounded its decision in the history of the rest-period requirement, statutory interpretation, and common sense, leading to its conclusion that “A rest period, in short, must be a period of rest.”

The case before the Court, Augustus v. ABM Security Services, Inc., involved security guards who were required to keep their pagers and radios on during rest periods and remain ready to respond to calls when needs arose. The security guards won a $90 million victory in the trial court on summary judgment – based on the employer’s admission that it did not relieve guards of all duties during rest periods - but the Court of Appeal reversed. In doing so, the appellate court concluded that state law does not require off-duty rest periods, and furthermore, that “being on call” is not performing work.

Augustus follows a 2012 decision of the state’s high court, Brinker Restaurant Corp. v. Superior Court, which concluded that employees must be relieved of all duties during statutorily required 30-minute meal periods. Now, Augustus confirms that employers must treat meal and rest periods the same way.

In an opinion written by Justice Cuéllar and joined by four Justices, the Court used the dictionary definitions of “rest” – the “cessation of work, exertion, or activity” or “freedom from activity and labor” – as an indication of the legislative intent behind the rest-period requirement. Justice Cuéllar traced the history of the provision, from an Industrial Wage Commission wage order in the 1930s to California Labor Code § 226.7, enacted in 2000. The Court noted indications that the Legislature had intended for meal and rest periods to be treated the same, and further that specific provisions which authorize on-duty rest periods (such as one involving caregivers at 24-hour residential care facilities) would make no sense if any employee can be required to be on duty during a rest period. The Court also looked to guidance from the Division of Labor Standards Enforcement which had determined that rest periods must be duty-free.

The majority also took care to assuage concerns that off-duty rest periods would be too onerous for employers, noting that an employer can call an employee back to work mid-break if there is an urgent need, so long as the employee gets an additional rest break within the prescribed timeframe or the employer pays the employee a premium for the missed break.

In a concurring and dissenting opinion, Justice Kruger agreed that rest periods must be off-duty, but quibbled with the premise that being “on call” is work. She would have remanded the case to the trial court for further consideration of whether this particular on-call policy unreasonably interfered with the security guards rest breaks.

Rather than let this determination devolve into a fact-bound, mushy standard as to what kinds of on-call policies unreasonably interfere with a 10-minute rest break, the Court created a bright-line rule. The Court acknowledged that, as a practical matter, a 10-minute break is exceedingly short and that any interference by the employer is likely to compromise the employee’s ability to briefly rest. The Court further noted that many employees may need to use those ten minutes to  take care of personal matters, such as pumping breast milk or making a phone call to arrange child care. In short, the Court has put employers in California on notice that rest means rest, making it much easier for employees to challenge employer policies that fail to conform to the law.


If you believe that your employer has failed to provide you with off-duty rest periods as required by California law, please contact Bryan Schwartz Law.

Working Backward from My Bliss: I Resist

A wet field of overgrown grass between the vineyards in Sonoma, my children running laughing after a soccer ball and a basketball - nothing contains them. There are no rules to their game, they are uncontrollably happy, they can be and do anything here. We have it good.

We were running 125 years ago, too. Running to America, we fled pogroms where children like mine lived in fear, had nothing, where parents saw only blood and destruction where they lived.


America welcomed my family and we have helped build it. We have followed her rules, paid our taxes, built and supported businesses. We have tried to give more than we have taken. Thousands have led better lives because of us.

Today America changes – says refugees are unwelcome, builds a wall with its hostility. Generations from now we will miss the laughing children’s children of those we exclude.

When we fail to pay it forward, we suddenly fear what is behind us. Just over our shoulder, despair and anger lurk among those we leave suffering.

Violence will meet us if we do not resist non-violently. We must cling to truth, satyagraha. We must produce prohibited salts, boycott buses, lie prostrate before wheels of tanks, and through it all, touch lepers, for the love of G-d.

For the love of children running laughing through the overgrown grass, for the sake of my bliss, today and for the next four years, I resist.

Tuesday, January 17, 2017

On Remand, Ninth Circuit Holds that Car Service Advisors Do Not Fall within the Fair Labor Standards Act’s Car Salesman Exemption from Overtime Pay

On January 9, 2017 the Ninth Circuit held that car service advisors do not fall within the exemption from overtime-compensation for “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles” provided in § 213(b)(10)(A) of the Fair Labor Standards Act (“FLSA”). (Navarro v. Encino Motorcars, LLC, No. 13-55323, Slip Op. 4 (9th Cir. 2017)).

Individuals working as “service advisors” filed an FLSA overtime action against their employer, a dealership that sells and services new and used cars. Plaintiffs alleged that service advisors’ duties include: greeting car owners as they arrive at the dealership’s service area; evaluating cars’ repair and maintenance needs; suggesting services for cars; writing up estimates; and following up with customers. (Slip Op. 4-5)

The U.S. District Court for the Central District of California dismissed the overtime claim. Thus began the case’s long appellate journey. Initially, the Ninth Circuit reversed, holding that a 2011 regulation by the Department of Labor reasonably interpreted § 213(b)(10)(A) to exclude service advisors. The Supreme Court held that the Ninth Circuit’s first decision erred by relying on the 2011 regulation and vacated the decision. The Court then remanded to the Ninth Circuit to construe § 213(b)(10)(A) without deferring to the 2011 regulation. (Slip Op. 5)

On remand the Ninth Circuit performed a detailed inquiry into the text and legislative history surrounding § 213(b)(10)(A). After reviewing “the ordinary meaning of the exemption’s words and the rule that we must interpret exemptions narrowly,” the court concluded, “we are convinced that Congress intended to exempt only salesmen selling cars, partsmen servicing cars, and mechanics servicing cars.” (Slip Op. 23)

However, assuming for the sake of argument that the FLSA’s language leaves room for ambiguity, the court examined the legislative history of the amendments and held that “Congress did not intend to exempt service advisors.” The legislative history for the operative amendments to § 213(b)(10)(A) “reveal[s] clear concerns with applying the overtime-compensation requirement to exactly three categories of a dealership’s employees: automobile salesmen, partsmen, and mechanics. The extensive legislative record . . . contains hardly a mention of service advisors, and the few references that exist display no concern about overtime compensation for service advisors.” On these bases, the Court held that Congress did not intend to exempt service advisors. (Slip Op. 31)

In ruling that Congress did not intend to include service advisors within the § 213(b)(10)(A) exemption, the Ninth Circuit maintains a split with the Fourth and Fifth Circuits as well as the Supreme Court of Montana, each of which has held that car services advisors were exempt from overtime. Walton v. Greenbrier Ford, Inc., 370 F.3d 446 (4th Cir. 2004); Brennan v. Deel Motors, Inc., 475 F.2d 1095 (5th Cir. 1973); Thompson v. J.C. Billion, Inc., 294 P.3d 397 (Mont. 2013). Navarro's journey may include another trip to the Supreme Court.

Monday, January 16, 2017

The Supreme Court to Consider Employees' Right to Seek Class-wide Relief

On Friday, January 13, 2017, the Supreme Court granted certiorari to consider the consolidated appeals of Epic Systems Corp. v. LewisErnst & Young v. Morris, and NLRB v. Murphy OilThe Court will consider a circuit split regarding whether arbitration agreements containing class action waivers are enforceable under the Federal Arbitration Act in the employment context. In Murphy Oil, the Fifth Circuit held that a corporate defendant did not commit unfair labor practices by requiring employees to sign its arbitration agreement, which contained a class action waiver. In Epic and Ernst & Young, the Seventh and Ninth Circuits held otherwise -- that class waivers in arbitration agreements signed by employees violated the National Labor Relations Act because the waivers restricted the workers' right to concerted action. Bryan Schwartz Law blogged about the appellate decisions here and here.

These cases do not dispute that employees may waive their right to proceed with claims against their employer in any forum other than arbitration. Rather, the Seventh and Ninth Circuits have held that employees cannot waive their right to proceed as a class in any forum. These circuits, as well as the current National Labor Relations Board, agree that the National Labor Relations Act of 1935 protects private sector employees' right to concerted action in workplace disputes.

This long-enshrined federally-granted right to concerted action has come under attack since the Supreme Court decided AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). Concepcion broadly interpreted the Federal Arbitration Act of 1925 to preempt state laws that prohibit contracts from disallowing class-wide arbitration. While Concepcion was a consumer case, many courts, including the Fifth Circuit, have applied its holding to force employees to proceed with their claims against employers in arbitration, and to do so individually, rather than on a class-wide basis.

The Supreme Court should restore order in the lower courts by clarifying that the National Labor Relations Act protects workers' right to concerted action, that this right is not preempted by the Federal Arbitration Act, and that courts must stop applying Concepcion and its progeny to deny workers the right to proceed as a class in any forum.