Tuesday, March 30, 2021

NLRB Slaps Back Elon Musk for Union Busting Tweet

Tesla landed itself back in the news last week for yet another dose of negative publicity, courtesy of the quick-tweeting trigger finger of its CEO, Elon Musk. This time, the National Labor Relations Board (“NLRB”) found Musk to have threatened employees with a loss of stock options if they chose to be represented by the United Auto Workers labor union. The 2018 tweet in question read: “Nothing stopping Tesla team at our car plant from voting union. Could do so tmrw if they wanted. But why pay union dues and give up stock options for nothing? Our safety record is 2X better than when plant was UAW & everybody already gets healthcare.”

Musk’s social media usage has already gotten Tesla into tens of millions of dollars of trouble. His tweet that he was considering taking Tesla private led to artificial investment in Tesla stock, even though the tweet had no basis in fact. The Securities and Exchange Commission fined him and Tesla each $20 million. Musk later said the penalty was “worth it,” speaking volumes about the weakness of the regulatory scheme that is meant to protect against the ultra-wealthy’s abuses of power.

Last week’s NLRB decision represents another agency’s attempt to rein in Musk’s unlawful social media posts. The NLRB ordered Musk and Tesla to stop threatening employees for supporting labor efforts, delete the tweet, place a notice regarding unfair labor practices at the Fremont plant, and place notices about the tweet in all Tesla facilities nationwide. The NLRB decision also reinstated with backpay a Tesla employee who was wrongfully terminated in retaliation for his union activities. Neither Tesla nor Musk will be faced with any penalties other than the employee’s backpay.

Bryan Schwartz Law is no stranger to Tesla and Musk’s unlawful workplace ethos. Since 2017, BSL has been litigating a case against Tesla concerning appalling race harassment at its Fremont factory. The NLRB decision is a positive development for workers, hopefully the start of many changes at the Tesla workplace to protect employees from abuses.

If you have experienced retaliation or discrimination at Tesla, contact Bryan Schwartz Law.

Friday, March 5, 2021

Whistleblower Victory Means Public Entities are Subject to PAGA - Sargent v. Board of Trustees

The Court of Appeal today certified for partial publication (hopefully soon to be full publication)
 Sargent v. Board of Trustees of CSU, a case led by Collier Law Firm (Bryan Schwartz Law's co-counsel) with amicus support from Bryan Schwartz Law writing on behalf of the California Employment Lawyers Association.

In Sargent, the Court of Appeal held unequivocally that aggrieved public employees can bring some PAGA claims against their employers - in particular, PAGA claims derived from Labor Code sections that provide for civil penalties (i.e., as opposed to those where only PAGA default penalties would be implicated). Government entities have argued that PAGA categorically does not apply to them - with some success at the the trial court level - but this decision should put that argument to rest. The Court relied on Kim v. Reins' holding that an employee has standing to bring PAGA claims when he/she was aggrieved by at least one claim personally - even if he/she did not personally experience all the violations.
Plaintiff Sargent blew the whistle on health/safety violations at the CSU, involving asbestos and other hazardous materials. He promptly received six written reprimands and ultimately was constructively discharged. The jury found cat's paw liability, under Reeves v. Safeway (CACI 2511), after the trial court sustained some of plaintiff's important evidentiary objections - which the Court of Appeal upheld. 

The Collier Law Firm fought thousands of hours in the trenches to prevail in the underlying jury verdict (the docket ran 167 pages, as the Court of Appeal pointed out). Though the plaintiff's underlying award will be modest, the Court of Appeal upheld a $7.8M fee award resulting from Defendant's scorched-earth litigation tactics, plus a well-deserved 2.0 lodestar fee multiplier. The Court rejected apportionment between successful/unsuccessful claims, and held that fees were supported under public-benefit theory, CCP 1021.5 (and did not reverse the trial court's finding that they were appropriate also under catalyst theory).  Importantly, the Court of Appeal rejected CSU's argument that CSU should not have to pay such a fee multiplier because the defendant is a public entity.

Sargent serves as a cautionary tale to defendants who fight with scorched-earth litigation tactics. The Court of Appeal cited defense counsel's billed hours and number of attorneys staffed on the file, as evidence that plaintiffs' counsel's billing was not excessive and that plaintiff's fees were reasonable. The Court upheld the award even though it reversed all the PAGA penalties that were awarded to the plaintiff (because they were not based upon PAGA penalties for Labor Code violations of sections with their own penalty provisions).

Bryan Schwartz Law congratulates the Collier Law Firm and all those who worked to win the important Sargent precedent.