Monday, October 1, 2018

Governor Brown Signs Wave of Sexual Harassment Legislation



Yesterday, Governor Jerry Brown signed into law numerous amendments to the sexual harassment provisions of the California Fair Employment and Housing Act (“FEHA”). The bills were part of a wave of sexual-harassment-related legislation resulting from the groundswell of public support for the #Metoo movement. While the Governor vetoed many of the sexual-harassment-related bills that made it to his desk, the signed bills provide important new protections for employees in California. This blog post discusses some of these bills.

I.                   SB 1300 clarifies and expands employee rights under FEHA.

Governor Brown signed SB 1300, a bill which clarifies and strengthens the rights of employees who seek to shed light on workplace harassment and other discrimination.  

A.   A single instance of sexually harassing conduct may trigger a triable sexual harassment claim.

Perhaps most importantly, SB 1300 clarifies the “severe or pervasive” legal standard for proving sexual harassment claims (sexual, or otherwise, under the FEHA). Under the FEHA (and the federal Civil Rights Act of 1964, Title VII), sexual harassment is actionable if the sexual conduct is so “severe or pervasive” as to create a hostile work environment. “Severe or pervasive” harassment alone triggers the action, unlike other discrimination and retaliation claims, which may become actionable only if the employee experiences a tangible loss or denial of job benefits. See 2 Cal. Code. Regs. § 11034, subd. (f); Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67-68 (1986); Lyle v. Warner Bros. Television Prods., 38 Cal.4th 264, 279, 284 (2006).

SB 1300 clarifies that under FEHA’s “severe or pervasive” standard, “a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” Id. The legislature rejected the “stray remarks doctrine,” affirming the decision in Reid v. Google, Inc., 50 Cal.4th 512 (2010) – in other words, a single harassing remark should not be dismissed as being merely a “stray remark,” for the purpose of assessing an employer’s liability. It is also no defense for an employer that a particular occupation may have had more frequent sexual commentary or conduct in the past (disapproving Kelley v. Conco Companies, 196 Cal.App.4th 191 (2011)). Indeed, the Legislature went so far as to declare expressly that: “Harassment cases are rarely appropriate for disposition on summary judgment.” Id., subd. (e) (citing and adopting Nazir v. United Airlines, Inc., 178 Cal.App.4th 243 (2009). 

SB 1300 makes it more likely that victims of sexual harassment will get their day in court. What action may constitute “severe” or “pervasive” harassment has often been highly contested in sexual harassment cases, and unfortunately, in the past, some courts have ruled that workplace behavior that most women would find abusive was neither “severe or pervasive.” For example, in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000) the Ninth Circuit Court of Appeals held that a single incident in which a fellow employee touched a plaintiff's breast under her sweater, while very offensive, did not rise to the level of “severe or pervasive” harassment for which Title VII and FEHA offer a remedy. On this basis, the appellate court upheld the district court’s grant of summary judgment for the employer, which meant that the plaintiff’s claims could not proceed to trial. Notably, last year, Alex Kozinski, who penned Brooks, stepped down from his seat on the Ninth Circuit rather than face an investigation into complaints of harassment by numerous women, including his former employees. SB 1300 expressly overturns Brooks’s nauseating “single grope” rule for claims brought under FEHA. Gov’t Code § 12923, subd. (b).

B.     Employers have a duty to prevent third party harassment of all stripes.

SB 1300 creates liability for employers who fail to prevent unlawful harassment of employees by non-employees where the employer knew or should have known of the discrimination and failed to take appropriate remedial action. This provision now extends not only to sexual harassment, but all forms of harassment based on a protected status. Gov’t Code § 12940.

C.    Employers may not obtain costs for plaintiffs’ worthy FEHA claims.

FEHA authorizes a court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorney’s fees and costs, including expert witness fees. California Code of Civil Procedure section 998 permits defendants to recover defense costs if a jury awards a smaller award to the plaintiff than the defendant previously offered in settlement. A defendant’s section 998 offer in a FEHA case used to have the effect of exerting pressure on a plaintiff to accept a settlement rather than face the prospect of covering defendant’s costs, even if the plaintiff prevailed at trial.

SB 1300 provides that a defendant may only receive fees and costs, regardless of any settlement offer, if a case is “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” Gov’t Code § 12965, subd. (b). The new law allows plaintiffs with worthy claims to seek their day in court without worrying about being on the hook for defendants’ fees and costs.

D.    Release of claims agreements and non-disparagement agreements related sexual harassment claims are unlawful.

SB 1300 prohibits employers from requiring employees to sign non-disparagement agreements as well as release of claims agreements as a condition of employment, continued employment, a raise, or bonus. Gov’t Code § 12964.5. These provisions will prevent employers from coercing or tricking employees into signing agreements that effectively silence them discussing workplace harassment or that strip them of their right to bring a claim under FEHA.

II.                SB 820 prohibits confidentiality provisions in sexual harassment settlements.  

It has become a common practice for employers to condition settlement of sexual harassment disputes on a complaining employee’s silence. Going forward, such provisions are expressly void and unenforceable for claims that have been filed in an administrative action or in court. SB 820 prohibits employers from conditioning settlement of certain claims of sexual assault, sexual harassment, or harassment or discrimination on the employee’s silence. The bill does allow for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court to be included within a settlement agreement upon the request of the claimant. However, this provision does not apply if a government agency or public official is a party to the settlement agreement. This bill extends to disputes beyond the employment context, and takes effect on January 1, 2019.

III.             AB 3109 voids contracts and settlement provisions that seek to waive a party’s right to testify in a government proceeding concerning alleged criminal conduct or sexual harassment.

AB 3109 makes void and unenforceable any contract or settlement provision that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment, when the party has been required or requested to attend the proceeding. Civil Code § 1670.11. Like SB 1300 and SB 820, AB 3109 frees employees who have experienced sexual harassment and others to share their experiences with the public. This law takes effect on January 1, 2019.

IV.             SB 1343 brings sexual harassment training to more workplaces.

Employers of five or more employees, including temporary or seasonal employees, are now required to provide at least two hours of sexual harassment training to supervisory employees and at least one hour of sexual harassment training to non-supervisory employees by January 1, 2020, and every two years thereafter. See SB 1343; Gov’t Code §§ 12950, 12950.1. This is a major expansion of FEHA’s sexual harassment training requirements, as the law previously extended training only to supervisory employees of employers with fifty or more employees. This expansion recognizes the value of educating all employees that they have a right to work in an environment free of sexual harassment and associated retaliation. 

V.                Conclusion

In the words of Martin Luther King, Jr. “Darkness cannot drive out darkness; only light can do that.” California’s new laws will ensure that more victims of workplace harassment and others have their day in court and can more freely shed light on problems that persist in California workplaces.


If you have been a victim of sexual harassment or unwanted sexual advances in the workplace, please contact Bryan Schwartz Law today. 

Wednesday, September 5, 2018

Bryan J. Schwartz Awarded 2018 Attorney Advocate Award by The Wage Justice Center

Today, Bryan J. Schwartz, principal at the law firm Bryan Schwartz Law, will accept the 2018 Attorney Advocate Award from the Wage Justice Center at an evening fundraiser in Los Angeles, California. (See press release here).

The Wage Justice Center fights for economic justice on behalf of low-wage workers in California. The non-profit organization specializes in piercing corporate shell games to hold employers accountable when they commit wage theft. 

Bryan Schwartz Law regularly represents low-wage workers in wage and hour class actions. The firm seeks swift relief for its clients, and pursues justice for as long as it takes. 

One of the firm’s signature cases involves wage violations at restaurants in Los Angeles and Orange County, in which the wealthy owner of a defunct business attempted to shield himself from personal liability for the business’s wage violations. After workers filed the class action suit, the employer immediately fired the named plaintiff, later closed his restaurants, and filed for personal and corporate bankruptcy. During nearly eight years of litigation, Bryan and his firm won over $1.5 million in back wages, damages, penalties, fees and costs from the individual employer on behalf of the terminated employee (whose wage loss was determined to be $3,000) after victories in bankruptcy court, a bench trial, a jury trial, several trips to the Court of Appeal, and collections proceedings. See Quiles, et. al. v. Koji’s Japan, Inc. et al. (Orange Cnty. Sup. Ct.) Case No. 30-2010-00425532. (Read more about the Quiles trial here)

The firm continues its fight for the class of restaurant employees who suffered wage violations, after securing a major victory at the court of appeals. In Turman, et al., v. Superior Court (2017) 17 Cal.App.5th 969, California’s Fourth District Court of Appeal, Division Three (in Orange County), held that an individual owner and president of a closely-held corporation may be personally liable in a lawsuit to recover overtime, meal and rest period premiums, tip compensation, and minimum wages under California law. Turman provides the first published state appellate interpretation of Martinez v. Combs (2010) 49 Cal.4th 35, the California Supreme Court’s marquee decision on the definition of an “employer,” as it applies to personal rather than corporate liability. On remand, the Superior Court recently ruled that the individual owner of the restaurants was may be liable as a joint employer with respect to the class claims under the Labor Code, Wage Orders, Business & Professions Code, and Private Attorneys’ General Act. (Read more about the Turman decision on our blog here and here).

“I am honored that the Wage Justice Center has recognized my firm’s dogged representation of restaurant workers in the Quiles/Turmanlitigation with the 2018 Attorney Advocate Award,” says Bryan Schwartz. “I have the greatest admiration for my clients – who for eight years have continued this fight to seek justice on behalf of their co-workers.”

For more information about Bryan Schwartz Law, please contact Bryan Schwartz at Bryan@BryanSchwartzLaw.com.





Thursday, August 30, 2018

Bryan Schwartz Law Submits Amicus Curiae Brief on Behalf of California Employment Lawyers Association: the California Supreme Court Should Rule in Lawson v. Z.B. that Employers Cannot Compel any PAGA Claims into Arbitration


When a worker stands in the shoes of the State of California, prosecuting wage violations under the Labor Code Private Attorneys’ General Act (PAGA), that representative plaintiff cannot be forced into arbitration, because the State did not agree to arbitrate. See Iskanian v. CLS Transportation of Los Angeles, LLC, 59 Cal.4th 348 (2014).

In Lawson v. ZB, N.A., 18 Cal. App. 5th 705 (Cal. Ct. App. 4th Dist. Dec. 19, 2017, as modified Dec. 21, 2017), the Court of Appeal rejected the attempt by the defendant Bank to force a PAGA plaintiff into arbitration as to the PAGA penalty requiring restitution of underpaid wages, under Labor Code §558. On March 23, 2018, the California Supreme Court granted review. On August 29, 2018, Bryan Schwartz Law, on behalf of the California Employment Lawyers Association (CELA), submitted an amicus brief supporting affirmance of the Court of Appeal decision.

PAGA civil-enforcement claims invoking Labor Code §558 include both the default civil penalty plus the penalty concerning underpaid wages. Lawson created a split with Esparza v. KS Industries, 13 Cal.App.5th 1228 (5th Dist. Aug. 2, 2017), which held that Labor Code §558(a)’s reference to a penalty including “an amount sufficient to recover underpaid wages” created a “private dispute,” to which the Iskanian rule does not apply.

Bryan Schwartz Law’s brief on CELA’s behalf demonstrates that Lawson was correctly decided, and Esparza was wrong, because all PAGA actions are representative actions, not individual actions. The amicus brief illuminates the breadth of the State’s police power, which cannot be limited by a mandatory, pre-dispute arbitration agreement with an individual worker. The language, legislative history, and purposes of PAGA and Labor Code §558 demonstrate the Legislature’s clear intent to permit PAGA plaintiffs to recover the full measure of relief that would be available to the State in a public enforcement action. Defendant ZB Bank’s contention that PAGA and Labor Code §558 would be preempted by the Federal Arbitration Act (FAA), 9 U.S.C. §§1, et seq., clearly contravenes the Supreme Court’s analysis in Iskanian and McGill v. Citibank, N.A. (2017) 2 Cal. 5th 945. The FAA does not strip the State of its enforcement authority, or strip employees of their non-waivable, substantive state law right to pursue vital workplace protections.

CELA is an organization of approximately 1400 California attorneys whose members primarily represent workers in a wide range of employment cases, including wage and hour actions and PAGA actions. CELA and its members have taken a leading role in protecting the rights of California workers, including by submitting amicus briefs and oral argument in such groundbreaking employment rights cases such as Iskanian, Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, Gentry v. Superior Court (2007) 42 Cal.4th 443, Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, and Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903. Bryan Schwartz Law has been instrumental to CELA’s amicus briefing in a host of key California cases.

The California Supreme Court’s decision in Lawson will have widespread ramifications for California workers. If the State’s PAGA penalty provisions forcing restitution to victims of wage theft can be shunted to individual arbitration, it will deeply undermine PAGA’s goal to strengthen the State’s enforcement power against wage law violators who steal from workers and unfairly compete against law-abiding businesses.

If you are seeking to assert wage claims representing your co-workers and are facing an employer who seeks to force you into individual arbitration, contact Bryan Schwartz Law.

Thursday, July 26, 2018

California Supreme Court Delivers Workers a Victory in Troester v. Starbucks Corp.

Though the U.S. Supreme Court’s recent decision in Janus v. AFSCME dealt a major blow to workers, and the nomination of Brett Kavanaugh to the high court might mean more devastation will follow, California has once again claimed its position as a progressive counter to an oppressive federal agenda. The California Supreme Court’s ruling today in Troester v. Starbucks Corp. defends the interests of working people by ensuring greater protection for those who regularly perform small amounts of uncompensated work - which add up to valuable unpaid wages, over time.

The plaintiff, a Starbucks employee named Douglas Troester, has argued Starbucks owes him wages for the time he spent running end-of-day computer software, activating a building alarm, locking the door, and walking coworkers to their cars as required by company policy. All of these duties, alleges Troester, add up to four to ten additional minutes each shift. Over a seventeen-month period, Troester’s unpaid time totaled twelve hours and fifty minutes, adding up to $102.67 at the then-applicable minimum wage of $8 per hour.

Troester first filed his case in Los Angeles County Superior Court, but Starbucks removed the case to federal court, and the district court granted summary judgment for Starbucks based on the federal “de minimis” doctrine. First set forth in the 1946 U.S. Supreme Court decision, Anderson v. Mt. Clemens Pottery Co., the de minimis doctrine holds that employers need not compensate employees for small amounts of otherwise compensable time if the employer can show tracking that time is administratively difficult. On appeal, the Ninth Circuit recognized that although the de minimis doctrine applied to federal wage and hour law, the California Supreme Court had never addressed whether the doctrine applied to wage claims under California law. The California Supreme Court agreed to the Ninth Circuit’s request to answer specifically whether the doctrine applied to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197. 

In today’s decision, the California Supreme Court first held that, based on a review of the relevant statutes and Industrial Wage Commission (“IWC”) Orders, California had not previously adopted the federal de minimis doctrine. The California Supreme Court, explains the decision, must interpret the Labor Code and IWC Orders liberally to best further their purposes. And, the Court held, California is free to offer greater protection to workers than federal regulations, which the state already has done, regarding, for example, on-call employees’ compensation for sleep and other personal activities (Mendiola v. CPS Security Solutions, Inc., 60 Cal.4th 833 (2015)), the definition of “employ” (Martinez v. Combs, 49 Cal.4th 35 (2010)), and transportation time (Morillion v. Royal Packing Co., 22 Cal.4th 575 (2000)).

Second, the Court held the relevant IWC Order and statute did not permit application of the de minimis doctrine to the particular facts of Troester’s case. For one, the Court explained, the modern availability of class actions undermines the rationale behind the de minimis rule for wage and hour actions. “The very premise” of wage and hour class actions, stated the Court, “is that small individual recoveries worthy of neither the plaintiff’s nor the court’s time can be aggregated to vindicate an important public policy.” The Court also found that the rationale behind the de minimis rule in Anderson is less relevant now because time-keeping technology has advanced far beyond what it was seventy years ago. The problems of recording employee time discussed in Anderson “may be cured or ameliorated by technological advances that enable employees to track and register their work time via smartphones, tablets, or other devices,” explained the Court. Although the Court found the de minimis doctrine did not apply to Troester’s case, it left open the possibility that certain circumstances may exist where compensable time is “so minute or irregular that it is unreasonable to expect the time to be recorded.”

The phrase “de minimis” comes from the longer maxim de minimis non curat lex, meaning “the law does not concern itself with trifles.” In this case, Starbucks argued the additional time Troester worked was insignificant. But while $102.67 may be insignificant to a multinational corporation, Justice Liu defended common sense and the dignity of working people in writing that $102.67 “is enough to pay a utility bill, buy a week of groceries, or cover a month of bus fares. What Starbucks calls ‘de minimis’ is not de minimis at all to many ordinary people who work for hourly wages.” 

The lawsuit now returns to the Ninth Circuit, which will factor in the California Supreme Court’s decision when it rules on Troester’s case. We hope that fairness for working people will prevail, as it did today in our state’s high court.

If you believe your employer has violated wage and hour laws, contact Bryan Schwartz Law.

Tuesday, July 10, 2018

There Is Always Hope, Even With The Kavanaugh Nomination

UPDATE (September 13, 2018): For a comprehensive review of the many reasons to oppose the nomination of Brett Kavanaugh to the United States Supreme Court, please read this statement from the Leadership Conference on Civil and Human Rights.

There is always hope.

Even when Brett Kavanaugh – who voted in favor of forcing a child to give birth in federal lockup against her will - is nominated to serve for an anticipated 30-40 years as a Justice of the Supreme Court of the United States.


Even if this same man believes the President is above the law, meaning he or she can commit any crime he or she wants without anyone being able to do anything about it while the President is in office.

The reason for maintaining hope? As President Barack Obama noted in his farewell speech, it’s certainly not the Constitution alone, which is “just a piece of parchment. It has no power on its own.”

There is hope because we resist. We give the Constitution “meaning with our participation and with the choices that we make and the alliances that we forge. Whether or not we stand up for our freedoms, whether or not we respect and enforce the rule of law, that's up to us.”

In this spirit, this firm has come to you before to oppose what was then a threat to our constitutional system, poised to take root.  

We ask you to stand with us again because we no longer just face the prospect of a threat. Instead, we are in the midst of the most dangerous attack on our cherished rights since the late 19th and early 20th centuries, when the Supreme Court wrongly decided that bakers working in nauseating, filthy conditions should have the “freedom” to work for less than minimum wage (in Lochner v. NY) (see also http://bryanschwartzlaw.blogspot.com/2018/06/the-us-supreme-court-exploits-first.html), when the Supreme Court endorsed “separate but equal” conditions that led millions of African-Americans to live under the oppression of Jim Crow laws for decades (in Plessy v. Ferguson), and when the Supreme Court gave its seal of approval to prison camps for Japanese-American citizens based solely upon their national origin (in Korematsu v. US; George Takei talks about his experience living through internment by his own government here).

If you believe in fair wages, equal dignity under the law, and women’s right to control their own bodies, then you should join one of these Strategic Resistance Groups:

  • Sister District Project: This organization seeks to flip state legislatures blue, a vital step in ensuring fair redistricting come 2020.
  • Swing Left: This organization seeks to flip U.S. Congress seats.
  • Flip the 14: This organization seeks to flip every single U.S. Congress seat up for grabs in California.
  • Working America: This organization canvasses flippable districts in California.
  • Local Indivisible groups: Indivisible is setting up a national phone bank this Sunday, July 15 to reach progressive voters in flippable senate districts so that Democrats can retake the Senate in November.
I know you are exhausted. We and our families, friends, and neighbors are too. But we cannot and must not forget, there is no one coming to save us. No one else will fix what has been broken nor protect what remains except you, me, and the people who will stand with us in this moment.

We are the ones we have been waiting for. We cannot afford to wait any longer.

Eduard Meleshinsky

Thursday, June 28, 2018

The U.S. Supreme Court Exploits the First Amendment to Endorse Public Union “Free Riders”

by DeCarol Davis and Eduard Meleshinsky


With its decision yesterday in Janus v. American Federation of State, County, and Municipal Employees, Council 31, No. 16-1466 (U.S. June 27, 2018), the U.S. Supreme Court marches forward in its sweeping campaign to erode workers’ rights to engage in protected concerted activity. See, e.g., Epic Systems Corp. v. Lewis, 584 U.S. ___ (2018) (holding that an arbitration agreement can bind an employee to individual arbitration and thereby prevent that worker from participating in class or collective action) (read our analysis of the decision here). In a 5-4 opinion, authored by Justice Alito, with Justice Kagan dissenting (joined by Justices Ginsburg, Breyer, and Sotomayor), the Court held that state government workers who choose not to join a union do not have to pay a share of union dues for covering the cost of negotiating and administering collective bargaining agreements. The Court’s decision overrules its long-standing precedent in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which required non-union employees to pay a portion of union dues, known as “agency fees,” to cover the out-of-pocket costs of collective bargaining and prevent “free riders” (i.e., workers who get the benefits of a union contract, like higher wages, better healthcare insurance, and competitive retirement plans without paying for it). Such mandatory agency fees do not fund any type of political campaigning by the union.

In Janus, the Supreme Court found that an Illinois law, which required public employees benefiting from union-organized collective bargaining agreements, to pay agency fees violated non-members’ free speech rights. Janus, No. 16-1466, at *1. The Court majority held that unions, in their “political and ideological projects” (including negotiating for better working conditions) may come at odds with a worker’s beliefs, and thereby violate a worker’s First Amendment rights. Id. The majority reasoned that requiring public employees to pay union dues would be “compelling” the worker to “subsidize” the speech of other private third party in violation of First Amendment. Id. at *9.

Justice Kagan, joined by the three other dissenting Justices, eloquently spoke to the majority’s radical departure from the Court’s established precedent:

There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification,” (citation omitted)—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to. Id. at **26-27.

The First Amendment in 1977 was the same as it is today, and yet, the Supreme Court again tramples on long-established American public policy favoring workplace peace and shared prosperity through collective bargaining between labor and management—one of few remaining mechanisms for workers to stand toe-to-toe with employers. The Court, despite its “pull-your-boots-up” philosophy, now gives “free-riders” the right to reap the fruits of hard-fought collective bargaining without chipping in anything.

Even conservative legal experts like Eugene Volokh agree that the majority’s opinion fails to reckon with the many ways in which “the First Amendment ‘simply do[es] not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of.’” Dissent at p. 15; Eugene Volokh, Why There’s No First Amendment Problem With Compulsory Union Agency Fees, (published Jan. 29, 2018), available at: https://reason.com/volokh/2018/01/19/why-theres-no-first-amendment-problem-wi. Were it otherwise, the Court would be compelled to upend many other well-entrenched arrangements where the government requires mandatory fees to subsidize various activities it believes serve an important governmental interest but which individuals may oppose, such as mandatory bar dues for attorneys, certain administrative fees for public university students, and, more generally, taxes spent on controversial governmental activities.

The Janus opinion is another example of the Roberts Court “turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” Slip. Op., Dissent at 27. Working people should remember this decision as they head to the ballot box this November.

Tuesday, June 26, 2018

Supreme Court Upholds Trump's Bigoted Travel Ban in Trump v. Hawaii



Today, in Trump v. Hawaii, No. 17-965 (U.S. Jun. 26, 2018), the Supreme Court has enshrined Donald Trump’s bigotry into our nation’s jurisprudence. In a 5-4 decision, the Court reversed a preliminary injunction against the third iteration of President Trump’s travel ban. The Court determined the preliminary injunction was an abuse of discretion and remanded the case for further evaluation on its merits. But further proceedings are unlikely to change the Court’s result, which found the travel ban permissible under the Immigration and Nationality Act (INA) and the First Amendment’s Establishment Clause despite Trump’s vehemently anti-Muslim motivation for the ban.

The travel restrictions, established in Presidential Proclamation No. 9645, claimed to protect national security by restricting the flow of nationals from eight foreign countries the Trump administration labeled as having deficient systems for managing and sharing information about their nationals. See Trump, slip op. at 3. These nations originally included Chad, Iran, Iraq, Libya, North Korea, Syria, Venezuela, and Yemen, all of which are majority Muslim except for North Korea and Venezuela. See Trump, slip op. at 5.

In his opinion, Chief Justice Roberts found the plain language of § 1182(f) of the INA granted the President wide-ranging power to restrict which foreign nationals may enter the United States. Section 1182(f) provides that the President can “suspend the entry of all aliens or any class of aliens” whenever he “finds” their entry “would be detrimental to the interests of the United States.” See Trump, slip op. at 11. According to the Chief Justice, the President had presented sufficient evidence showing that the entry of those covered by the ban into the country would be “detrimental” to the national interest. See Trump, slip op. at 10.

But the crux of the debate focused on whether or not the anti-Muslim rhetoric surrounding the travel ban ran afoul of the Establishment Clause, which forbids government policies “respecting an establishment of religion.” U.S. Const., Amdt. 1. Accordingly, the government “may not adopt programs or practices . . . which aid or oppose any religion.” Epperson v. Arkansas, 393 U.S. 97, 106 (1968). But for Chief Justice Roberts, only laws that “lack any purpose other than a ‘bare . . . desire to harm a politically unpopular group’” are illegitimate under the Court’s deferential standard. See Trump, slip op. at 33 (citing Dep’t of Agric. v. Moreno, 413 U. S. 528, 534 (1973)). Despite the anti-Muslim rhetoric coming from the Trump administration, the Chief Justice held that the Court could not strike the travel ban “because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility.” Trump, slip op. at 34.

In her forceful dissent, Justice Sotomayor catalogues in laboring detail the substantial record of the travel ban’s anti-Muslim purpose, including Trump’s statement “calling for a total and complete shutdown of Muslims entering the United States” that remained on his campaign website several months into his Presidency. Trump, slip op. at 4 (Sotomayor, J., dissenting). Over the course of seven pages, Justice Sotomayor details myriad other egregious statements, including Trump’s December 2015 comment analogizing his ban to the internment of Japanese-Americans during World War II and Trump’s February 2016 repetition of an apocryphal story to a cheering crowd in South Carolina about how U.S. General John J. Pershing executed Muslim insurgents with bullets dipped in pigs’ blood. See Trump, slip op. at 5 (Sotomayor, J., dissenting). Justice Sotomayor rightfully points out the absurdity of Chief Justice Roberts finding an insufficient level of animus to strike down the travel ban in the face of Trump’s statements, his refusal to retract them, and his insistence that his second Executive Order was simply a “watered down version of the first one.” Trump, slip op. at 8 (Sotomayor, J., dissenting).

Justice Sotomayor also calls out the hypocrisy of the Court’s decision today in light of its decision earlier this month in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (U.S. Jun.4, 2018). While the majority in Masterpiece Cakeshop found state commissioners’ hostile comments about Christianity to be evidence of unconstitutional government action, the majority here renders Trump’s statements, far more numerous and hateful than in Masterpiece Cakeshop, to be irrelevant. See Trump, slip op. at 26 (Sotomayor, J., dissenting). A clear message emerges from these two decisions: a different First Amendment applies to Christianity than to Islam.

The Court’s decision today disturbingly parallels the Court’s horrific approval of interning Japanese-Americans during World War II in Korematsu v. U.S., 323 U. S. 214 (1944). See Trump, slip op. at 26-28 (Sotomayor, J., dissenting). In a move to legitimize today’s decision, Chief Justice Roberts explicitly condemns Korematsu, saying it was “gravely wrong the day it was decided.” See Trump, slip op. at 38. But the Court has not truly abandoned Korematsu. It has only repackaged the same xenophobia for a new era. And one day, Justice Sotomayor’s dissent will be praised by the judiciary as having the same foresight and moral clarity as Justice Jackson’s dissent in Korematsu. Until then, we keep fighting.

See our previous posts covering the travel ban from February 10, 2017 and June 15, 2017.

Bryan Schwartz Law is proud to represent workers from Muslim, immigrant, and other oppressed communities. If you believe your employer has violated your workplace rights, please contact our office.

Monday, June 4, 2018

U.S. Supreme Court Sides with Baker and Emboldens Anti-LGBTQ Efforts in Masterpiece Cakeshop Decision

The Supreme Court issued today its highly-anticipated decision in MasterpieceCakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111 (Jun. 4, 2018). While the opinion’s narrow holding sets no groundbreaking precedent, it strengthens anti-LGBTQ activists and their narrative of state-led, anti-Christian persecution as the substantive debate returns to lower courts.

In 2012, Jack Phillips, owner of the bakery Masterpiece Cakeshop outside of Denver, refused David Mullins and Charlie Craig a wedding cake because he believed creating a cake for a same-sex wedding violated his religious beliefs. (Slip Op. at 1). Mullins and Craig filed a charge under the Colorado Anti-Discrimination Act, which prohibits discrimination based on sexual orientation in any “place of business engaged in any sales to the public and any place offering services . . . to the public.” (Slip Op. 5). The Colorado Civil Rights Commission sided with Mullins and Craig, and the Colorado Court of Appeals affirmed. (Slip Op. at 8).

The Supreme Court’s reversal in favor of Phillips, authored by Justice Anthony Kennedy, comes as a surprise given Justice Kennedy’s career-defining support for LGBTQ rights. Among his authored opinions are Lawrence v. Texas, 539 U.S. 558 (2003), invalidating anti-sodomy laws, United States v. Windsor, 570 U.S. 744 (2013), declaring the Defense of Marriage Act unconstitutional, and Obergefell v. Hodges, 135 S.Ct. 2584 (2015), legalizing same-sex marriage nationwide.

In Masterpiece Cakeshop, Justice Kennedy acknowledges “[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.” (Slip Op. at 9). But the Court still sided with Phillips, finding that the state had not met its obligation of religious neutrality. (Slip Op. 2). Instead of giving Phillips “neutral and respectful consideration,” the Court found the Commission exhibited anti-religious hostility in violation of the Free Exercise Clause. (Slip Op. at 9). Especially troubling to Justice Kennedy were the comments of one Commissioner who likened Phillips’s position to defenses of slavery and the holocaust and disparaged Phillips’s religious beliefs as “despicable” and merely “rhetoric.” (Slip Op. at 13-14). Justice Kennedy also took issue with the Commission’s treatment of Phillips compared to secular bakers who had refused to bake cakes with homophobic messages in other discrimination claims. (Slip Op. at 14-16).

By reversing the lower court on these narrow grounds, the Supreme Court avoided ruling on the case’s main issue of to what extent religious freedom can justify discrimination based on sexual orientation. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” writes Justice Kennedy. (Slip Op. at 18). While his motivation is unclear, limiting the decision to the case’s particular facts may be an attempt to prevent further polarization in an already divided culture.

But even with its narrow holding, Masterpiece Cakeshop will negatively shape the debate over LGBTQ rights as the issue returns to lower courts. Most significant may be Justice Kennedy’s broad definition of “hostility.” In their dissent, Justices Ginsburg and Sotomayor criticize Justice Kennedy’s conclusion that statements made by one or two Commissioners can taint proceedings involving “several layers of independent decisionmaking, of which the Commission was but one.” (Slip Op. at 7). Finding such a low level of “hostility” violates the state’s obligation of religious neutrality expands on Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), the only case cited by Justice Kennedy as support. Lukumi involved only one decisionmaking body, compared to several in Masterpiece Cakeshop, and anti-religious animus motivated the passing of an entire law, not just a couple of a law’s enforcers. (Slip Op. at 7-8). As a result, Masterpiece Cakeshop may embolden those discriminating based on sexual orientation to seek redress in court by claiming that their animus against gay people is based upon religion.

The Supreme Court has dealt LGBTQ rights a blow with Masterpiece Cakeshop. But the wound is not fatal, and the widespread “recognition that gay persons and gay couples cannot be treated as social outcasts” provides hope that the civil rights of the LGBTQ community will prevail as the substantive issues of law return to the lower courts.

If you have experienced discrimination based upon your sexual orientation or gender identity and need help, please contact Bryan Schwartz Law.

Tuesday, May 22, 2018

Epic Fail: U.S. Supreme Court Rules that Employers May Require Employees to Waive Right to Bring a Class Action as a Condition of Employment


On Monday, the Roberts Court took another significant step in its ongoing project to hobble class actions and impose barriers to employees seeking redress against their employers by holding that class action waivers within arbitration agreements do not violate the National Labor Relations Act (“NLRA”). The employees, seeking to recover unpaid wages on behalf of themselves and other employees under the Fair Labor Standards Act (“FLSA”), had argued that the NLRA’s Section 7, which guarantees employees’ “right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” prohibits employers from requiring that employees agree to individual, binding arbitration as a condition of continued employment.

The case, Epic Systems Corp. v. Lewis, comes on the heels of series of Roberts Court cases expanding the ability of companies to impose individual arbitration on their employees and customers, thus preventing employees and consumers from filing lawsuits in open court or filing class actions anywhere. Bryan Schwartz Law has written extensively about the Court’s decisions expanding the Federal Arbitration Act (“FAA”) at the expense of the rights of employees and consumers: here, here, here, here, here, and here. In 2001, the Rehnquist Court ruled in Circuit City Stores, Inc. v. Adams that the FAA’s express exclusion of “the contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce,” meant to remove only the employment disputes of transportation workers from binding arbitration, notwithstanding the broad “any other class of workers” language in the Act. Then, in 2011, the Roberts Court approved of class action waivers in consumer arbitration contracts in AT&T Mobility v. Concepcion.

The Court’s opinion in Epic Systems, while hardly a surprise given this Court’s expressed disregard for the rights of workers and consumers in its recent arbitration jurisprudence, is notable for the sheer level of its intellectual dishonesty. Justice Gorsuch, writing for the five-Justice majority, feigns confusion as to why the National Labor Relations Board did not address the apparent conflict between the NLRA (enacted 1935) and the FAA (enacted 1925) until 2012, when the obvious answer is that no one thought that the FAA had anything to do with employment disputes in the late 1930s when Congress passed both the NLRA and the FLSA, which permits employees to bring “collective actions” to recover unpaid wages.

Gorsuch counsels judicial restraint in admonishing the employees for asserting a conflict between the FAA and NLRA – “This Court is not free to substitute its preferred economic policies for those chosen by the people’s representatives” – but fails to mention that the current regime making compulsory, pre-dispute arbitration a ubiquitous requirement for employees and consumers is a recent, judicial invention. Given the low value of most individual employment and consumer claims, the right-wing innovation is tantamount to a get-out-of-jail-free card (or out-of-liability-free card, at least) for companies engaging in wage theft and other insidious business practices, undermining fair competition with companies that play by the rules.

Completely absent from Court’s opinion is any discussion or concern as to how forced individual arbitration undermines the substantive rights enshrined in laws like the FLSA and Title VII of the Civil Rights Act of 1964 (prohibiting employment discrimination). The success of these Acts has depended greatly on the ability to bring group actions challenging policies and practices that injure large numbers of workers. For instance, the landmark 1971 discrimination case Griggs v. Duke Power Co. involved a class of African-American employees who successfully challenged high school diploma and IQ-testing requirements that were unrelated to their jobs, but had the effect of keeping African-Americans out of the most desirable positions. In Gorsuch’s world, these sorts of fundamental statutory protections must give way to the Roberts Court’s arbitration regime, under which its expansive reading of the FAA trumps all.

Justice Ginsburg penned a fiery and forceful dissent, joined by Justices Breyer, Sotomayor, and Kagan, in which she blasts the majority opinion for trampling on the ability of employees to exercise their statutory rights. Ginsburg traces the history of the Court’s labor jurisprudence, noting that New Deal legislation like the NLRA and the FLSA arose from an understanding that individual employees lacked the bargaining power to demand fair working conditions, and that only through acting collectively could employees “match their employers’ clout in setting the terms and conditions of employment.” In that sense, the majority’s opinion, premised on the fanciful notion that most employees have any ability to negotiate when their employers demand they sign an arbitration agreement, reflects a return to the pre-New Deal Lochner era, when the Court routinely struck down worker protections as violating the supposed freedom to contract.

Ginsburg further notes that the result of Epic Systems “will be the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers.” Low-wage employees, especially, may be reluctant to take on their employers alone for fear of retaliation, since the costs and risks of proceeding individually often dwarf the potential recoveries. Of course, this is not an accidental outgrowth of the Roberts Court’s arbitration jurisprudence, but its central design: to insulate companies from liability for harm to their employees and customers.

After Epic Systems, employees, consumers, and those who advocate on their behalf have an increasingly limited toolbox to confront corporate abuse on a class-wide basis, so long as employers can demand individual arbitration. At this point, the only comprehensive solution is likely a legislative one, highlighting the importance of who Americans elect to the next Congress. When most Americans know victims of corporate overreaching – a day we fear is coming soon – the tide will turn, and the Roberts Court will be seen in its true light, on the wrong side of history.

Monday, April 30, 2018

California Supreme Court Narrows Application of "Independent Contractor" Status


Today's ruling in Dynamex v. Superior Court (S222732) (April 30, 2018) is an 85-page dissertation, authored by the Chief Justice, for a unanimous court, meant to limit abuse of the independent contractor designation in California. Read the decision here

In an era when the United States Supreme Court’s majority increasingly buries its head in the sand and resorts to overly formalistic readings, tilting the scales of justice toward exoneration of unscrupulous businesses, it is refreshing to read Dynamex. The California Supreme Court consistently keeps front and center the unequal bargaining power real California workers experience when going to work. Dynamex helps restore balance, placing the burden where it should be – on businesses, if they hope to show that their workers, or any of them, are independent contractors, not subject to the protection of the Wage Orders that enforce the California Labor Code. Dynamex is a win also for businesses that play fair, because they will not have to compete against others cutting corners on wages, and for the general public, because the Wage Orders and Labor Code are fundamentally designed to protect the health and welfare of everyone in California workplaces. (Slip Op. at 58-60).

In the first pages of Dynamex, the Court notes a U.S. Department of Labor report finding that the distinction between independent contractors and employees is the most important factor in determining whether a worker will receive labor, employment, and other statutory protections. Employers hold back billions of dollars a year in taxes based upon improper independent contractor designations, and millions of workers suffer the consequences. (Slip Op. at 2). 

The workers in Dynamex argued that the same tests determine whether supposed independent contractors are actually employees entitled to Wage Order protections, as would determine whether two entities are joint employers - namely, the tests in Martinez v. Combs (2010) 49 Cal.4th 35, 64: whether an alleged employer has a) control over wages, hours and working conditions, or; b) suffers or permits work to occur; or c) engages a worker to perform work. Dynamex upheld the Court of Appeal decision, holding that the trial court did not err in concluding that the "suffer or permit to work" definition of "employ" contained in the Wage Orders may be relied upon in evaluating whether a worker is an employee. (Slip Op. at 46-47). The company had argued that courts could only use the old independent contractor test from S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), but the Court of Appeal and Supreme Court rejected this view. (Slip Op. at 6-7, 46).

Instead, the Court held that, in evaluating the “suffer or permit” test under Martinez, for the purpose of determining independent contractor versus employee status, courts should apply the “ABC test.” Though, as of today, I find no state cases prior to Dynamex in California that invoked the ABC test, I predict there will be hundreds of “ABC test” decisions in the months and years to come.
 “Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.” (Slip Op. at 7). The Court repeatedly emphasized that the it is an alleged employer’s burden to prove independent contractor status, and that doing so requires meeting all three prongs of the ABC test. (Slip Op. at 64, 66-68).

The Court recommended that, if deciding B or C is easier than A (as will usually be the case), then a court should begin by deciding B or C – since all three prongs must be met. (Slip Op. at 76). In other words, if a delivery driver without an independent delivery business is being classified as an independent contractor by a delivery company – a court likely need go no further, because the company will have failed prongs B and C.

More analysis of Dynamex to come...

If you believe you are misclassified as an independent contractor and should be paid as an employee, contact Bryan Schwartz Law.

Monday, April 16, 2018

Sixth Circuit Extends Title VII Protection to Transgender Employees

Joining the Second and Seventh Circuits, the Sixth Circuit issued a decision last month that extended Title VII protection for individuals who are transgender or transitioning in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018). 

The case involves Aimee Stephens, who had worked for nearly six years as a funeral director at R.G. and G.R. Harris Funeral Homes ("Funeral Home") when she informed the funeral home's owner that she is a transgender woman and intended to start dressing in appropriate business attire for women as part of her transition. The owner of the funeral home fired Stephens because of Aimee's transgender status, claiming that he would violate God's commands if he permitted funeral directors to deny their sex while representing the funeral home and would render him complicit "in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift."

After her termination, Stephens filed a charge of discrimination with the EEOC. The EEOC determined that there was reasonable cause to believe that the Funeral Home fired Stephens due to her sex and gender identity. The EEOC also found the Funeral Home to be in violation of Title VII because it provided male employees with a clothing benefit which was denied to females. After the EEOC's informal conciliation process failed, the EEOC filed a complaint in federal court against the Funeral Home on September 25, 2014.

After the parties cross-moved for summary judgment, the District Court determined that there was direct evidence to support Stephen's claim of employment discrimination on the basis of her sex. However, the Court nevertheless found in the Funeral Home's favor, concluding that the Religious Freedom Restoration Act (“RFRA”) precludes the EEOC from enforcing Title VII against the Funeral Home, as doing so would substantially burden the Funeral Home's religious exercise, and the EEOC had failed to demonstrate that enforcing Title VII was the least restrictive way to achieve its presumably compelling interest “in ensuring that Stephens is not subject to gender stereotypes in the workplace in terms of required clothing at the Funeral home.”

The EEOC timely appealed, and Stephens moved to intervene in this appeal on January 26, 2017, after expressing concern that changes in policy priorities within the U.S. government might prevent the EEOC from fully representing Stephen's interests in the case. Stephen's request was granted by the Sixth Circuit on March 27, 2017. 

On appeal, the Sixth Circuit overturned the district court, finding that Stephens was protected by Title VII because the Funeral Home's decision to fire Stephens necessarily implicated Title VII's proscriptions against sex stereotyping, which is already protected under the court’s precedent in Smith v. City of Salem, 378 F.3d 566, 573 (6th Cir. 2004) and Supreme Court precedent from Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). As to the employer’s free exercise of religion defense, the Sixth Circuit reversed the district court’s decision, holding that forcing the funeral home to comply with Title VII did not meet the RFRA’s substantial burden requirement, in part because the funeral home could not rely on the presumed gender biases of its customers to establish a substantial burden on its free exercise of religion. The ruling affirms that transgender individuals are protected by federal sex discrimination laws, and that religious belief does not give employers the right to discriminate against them.