U.S. Supreme Court Clarifies Standards for Unions to Charge Nonmembers Service Fees

An employee member of a collective bargaining unit may choose not to be a member of the union that represents the unit. However, under First Amendment jurisprudence, the union may charge the non-member a "service fee" for bargaining services. But the union must carve out the portion of dues spent on activities unrelated to collective bargaining (such as political activity). In Locke v. Karass, the Court addressed whether the union could include the costs associated with litigation directed by the national union. The Court in a unanimous opinion held that such expenses may be charged as part of the service fee when:

(1) the subject matter of the (extra-local) litigation is of a kind that would be
chargeable if the litigation were local, e.g., litigation appropriately related to collective bargaining rather than political activities, and (2) the charge is reciprocal in nature, i.e., the contributing local reasonably expects other locals to contribute similarly to the national’s resources used for costs of similar litigation on behalf of the contributing local if and when it takes place.

Wake up. This is important stuff. The case is Locke v. Karass and the opinion is here.

Court of Appeal: Waiting Time Penalties Are...Penalties

The Court of Appeal in Pineda v. Bank of America held that "waiting time" penalties imposed under Lab. Code Section 203 are not a form of "wages" or property of the plaintiff. They are indeed penalties, unlike meal period penal- er - premiums. So, the court found, the plaintiffs could not seek waiting time penalties under the unfair competition law, Bus. Prof. Code section 17200. This is important because section 17200 carries with it a four-year statute of limitations.
A year or so ago, a superior court in another case made the extraordinary determination that waiting time penalties are wages, not penalties, and were recoverable under the UCL. So much for that argument.
The opinion in Pineda is here.

Bye Bye Brinkley

The California Supreme Court granted review in Brinkley v. Public Storage, here. We posted about Brinkley, a very employer-friendly meal and rest period decision, here. Yes, yes, I know. We predicted the Supreme Court would grant review in our earlier post. No wonder we rank among the top 700,000 blogs.

Greg

5th Circuit Awards Attorney's Fees Against EEOC

The federal and California courts apply the same standards in awarding attorney's fees in discrimination cases. So, the recent case of EEOC v. Agro Distribution LLC (opinion: here) is relevant to awards of fees in California. And I can write about other circuits' cases if I want to. So there.

The reason I'm writing about this one is that the EEOC pursued a case well beyond the point that it should have determined it lacked merit. The investigator initially assigned to the charge was on a mission. The plaintiff's deposition doomed the plaintiff's claim. The settlement demands were unreasonably high.

The court of appeals first decided that EEOC failed to "conciliate" or attempt to resolve the case in good faith. The agency made a very high demand and then immediately closed conciliation efforts when the demand was rejected, despite the employer's attempt to engage in settlement negotiations. However, the court also found that failure to conciliate is not a jurisdictional defect.

The court then held that the district court's award of fees against the EEOC was within the court's discretion. The district court awarded about $225,000 in fees for the period of time following the plaintiff's deposition until summary judgment. (That's a heck of a bill for post-deposition litigation through summary judgment, but the district court did not find fault in the billings). The court of appeals agreed with the district court that after the plaintiff's deposition, the agency's further prosecution of the case was absolutely unjustifiable.

This case may be used in situations when a case of arguable merit at inception is revealed through discovery to be frivolous, unreasonable, or without foundation. Fees should be awarded in favor of the employer from that point, if not from the beginning of the case.

DGV

Stanford Busines, Entry 16: Winter Quarter, Report Cards, and Musharraf

The Winter Break
After scattering to different parts of the world for Christmas break, we finally started our second quarter in early January. While I travelled to Boston and Pakistan, some of my colleagues travelled to India, Japan, Europe, Kazakhstan, and to various countries in South America.

A few stayed on campus and explored the San Francisco area; some went skiing at Lake Tahoe, which is a very popular thing to do in the Bay Area. There is a Sloan ski trip scheduled there in a few weeks .

Many of the MBA’s went on organized trips to different parts of the world. It is part of their requirements that they take an international study trip at least once a year; some of them fulfilled that requirement over the Winter Break, going to places like India, Vietnam, Malaysia, and several countries in Africa. Some of the MBA’s are going to do their trips over Spring Break. The Sloan program has it’s own study trip during Spring Break – our East Coast Study Trip.

Report Cards.
Over the winter break, we got the grades for our classes from the Fall Quarter.
Grading at the GSB doesn’t consist of a normal A-F grades, nor even numerical grades.

It consists of the following: H (rarely given, stands for Honors, I think; for students who do extremely well; I think it’s up to the instructors discretion whether anyone gets this grade; HP (High Pass; for those who do well in a class; typically I think this ends up being something like 20% of the class), P (Pass; for those who pass the class, this is 50% of the class), LP (Low Pass; this is for the bottom 20% of the class), and a failing grade (I don’t remember the letter, but it’s not F). From what little I know, the H is rare, but the failing grade is even more rare. I.E. if you completely *#!!-up, then you might fail a class.

In the Sloan Program, many of us haven’t been “graded” by a teacher in over 10 years, so this was a novel experience. Still, it didn’t stop us from approaching our professors when we thought we’d gotten a grade less than what we deserved. I heard that we became known as the class that quibbles with professors over grades.
How did I do? Well, I like to think of myself a poet-quant hybrid, able to do well in quantitative and qualitative subjects, but I was up for a rude awakening. In my quantitative classes (Finance, Financial Modeling, Economics: all of which were our “core” 4 unit classes), I did very well! I guess my engineering background paid off after all.

In the “softer” classes which were less quantitative, I did not so great. These were generally our 2-unit classes, which lasted less than the whole quarter such as: Organizational Behavior, Strategic Leadership, Negotiations, etc.
The biggest surprise to me were the embarrassingly low grades I received for my papers in these soft subjects. This was even more surprising (and embarrassing) since I haven’t done a single math problem since college, but have basically been a writer and a leader in the years since – having written several books, lots of articles, and led multiple organizations!

As Scooby-Doo would say, Yikes!

In the fall, we had sessions to help the poets learn the quantitative subjects, called: “Finance for Poets, Modeling for Poets”. These were mostly about how to think about doing the problems that the professor was likely to ask in exams and problem sets. Maybe we need a “Writing papers for Quants: How to think like a Stanford professor’s grading assistant”. I’ll be there!

The New Quarter.
We started the Winter Quarter at the beginning of January. The academic school year at Stanford consists of three quarters (plus the summer quarter, which is optional for most grad students). From what I can tell, the Winter quarter is actually the shortest quarter, going for only 10 weeks.

Coming back to campus felt a bit like a homecoming. It didn’t take long to get settled in again after our brief several hour orientation on the Monday after New Year’s Day.

This quarter is very different for the Sloans. This is because we’re not spending all of our time in a single classroom with our fellow program members. We only have two core classes (Accounting, with a beginner and advanced version, and Marketing. As a result, we are only fully together as a class in Marketing.
The rest of our classes are electives, and these are the classes that make Stanford what it is. We take our classes with other Sloans and with MBA2’s (second year MBA students). None of the first year MBA’s are allowed to take electives yet so we haven’t had any classes with them.

Electives that I’m taking this quarter include Entrepreneurship and Venture Capital, How to Make Ideas Stick (about marketing messages which are sticky), and International Financial Management (about currency trading). I know some classmates who are taking all entrepreneurship-related classes (there are a lot at Stanford), and some who are taking all Finance-related classes, but most have a mix of the two.

The Sloan program is structured so that most of us take 5 classes this quarter and then 4 classes in the final quarter, or vice-versa. Many of us decided to take 6 classes this quarter, but quickly discovered that the amount of reading and work associated with 6 classes probably wasn’t worth it – most of us who did that ended up dropping one of our classes.

Classes with MBAs
The main difference in taking classes with MBA2s? The professors expect us to be more prepared and to have always read the cases. There’s a lot more cold-calling in MBA classes than Sloan classes. By cold-calling, I mean when the professor just calls on someone randomly and asks them about the reading. The way to avoid being cold-called is to hold up your hand, volunteering to discuss the case. Of course, that supposes you’ve read the material!

I think the most useful skill for me at business school has been the ability to read very fast – rather skim and get the key points of a case. Many of the cases are 12 pages long – of course you don’t need to know every detail of the case, just the broad strokes, and this usually suffices as long as you have the case with you during classes.

Much of the non-financial classes are case-based. Stanford offers a mix of case-based classes (which was pioneered and is in vogue at Harvard) and lecture-based classes (which tends to be done at many other business schools). Many of our classes combine case and lecture, which is pretty effective method overall.
In any case, it’s nice to finally get to take classes with the folks that we’ve been wandering around the corridors of the GSB with.

Musharraf Visits
Former Pakistani president Pervez Musharraf visited campus this week and gave a talk. I wasn’t able to stay for the whole thing, but they did say it was unusual for a former foreign public official to speak on campus so soon after leaving his post.

He spoke primarily about terrorism and extremism, based on his understanding of Pakistan and the region. He compared it to a Tree, with terrorists being the leaves on the tree, and terrorist organizations being the branches. Simply getting rid of the leaves, or trimming the branches, won’t get rid of terrorism. The roots, the root causes, which include poverty, illiteracy, political alienation, and extremism, all need to be addressed. He gave a history of Afghanistan, particularly over the past 20 years and spoke about how the traditional structures that held it together as a nation disintegrated during the 10 year jihad that Pakistan and the US started and fueled there against the soviets during that time.

He went on to answer questions from a professor and subsequently from the audience. I didn’t stay for this part, but do like the fact that we’re getting people like him coming to campus regularly.

Court of Appeal Affirms Jury Verdict Finding Adequate Accommodation

Julie Wilson worked as a radio dispatcher for Orange County's emergency communications system. Because of a disability that was aggravated by stress, she sought accommodations that included assignment only to certain shifts at certain times. The county temporarily gave her exactly what she wanted, but decided initially that the accommodation could not be permanent. After substantial negotiating, leaves, and rejected proposals, the County assented to all of Wilson's requests. The key issue was the delay between her initial request and the final accommodation. A jury returned a verdict for the county on her claim for denial of accommodation. The court of appeal affirmed:

The real gist of Wilson’s complaint is not that she wasn’t accommodated, but that it took too long for her supervisors to finally agree to a permanent arrangement--i.e., that she could return to work at Control One, in her same position, with the restrictions she wanted. It is this delay that forms the basis of her interactive process
claim. She argues that as a matter of law, the County failed to engage in a good faith
interactive process with her because it did not commence the interactive process until June 2005, prior to which the County simply “contrived a circumstance” to justify not engaging in the interactive process—namely, that Wilson’s disability was
only temporary.

* * *

Here, the record demonstrates the County engaged in a process aimed at trying to accommodate Wilson. Indeed, the success of its process is borne out by the fact
that in the end, Wilson got exactly what she wanted—albeit after a series of temporary accommodations.

The case is Wilson v. Orange County and the opinion is here.

SV Employment Law Article Pot Pourri

We publish articles bi-weekly in the Sacramento Daily Recorder newspaper, and about monthly in the San Francisco Daily Journal. Here are some of the articles we've published in the past few months:

STATUTE OF LIMITATIONS FOR FEHA CLAIMS ON THE VERGE OF EXTINCTION
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-12-30

WILL CONGRESS BAN SEXUAL ORIENTATION DISCRIMINATION?
By Jennifer Brown Shaw and Carolyn Burnette
The Daily Recorder
2008-12-18

DISABILITY DISCRIMINATION AND QUALIFICATION STANDARDS
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-12-02

GOLDEN STATE OF MIND
By D. Gregory Valenza
The Daily Journal
2008-11-28

RECENT DEVELOPMENTS REGARDING INTERNAL EEO COMPLAINT PROCEDURES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-11-20

NEW LAW AIMS TO ENCOURAGE COMPLIANCE WITH DISABLED ACCESS RULES
By Jennifer Brown Shaw and Carolyn G. Burnette
The Daily Recorder
2008-11-06

ALTERNATIVE POSITIONS AS A REASONABLE ACCOMMODATION: WHAT IS REQUIRED?
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-10-08

THE ADA AMENDMENTS ACT
By Jennifer Brown Shaw and D. Gregory Valenza
The Daily Recorder
2008-09-24

FLESHING OUT THE ADA
By D. Gregory Valenza
The Daily Journal
2008-09-16

BACKGROUND INVESTIGATIONS KEEP GETTING MORE COMPLICATED
By Jennifer Brown Shaw and Matthew J. Norfleet
The Daily Recorder
2008-09-10

EDWARDS V. ARTHUR ANDERSEN: NON-COMPETE AGREEMENTS AND GENERAL RELEASES
By Jennifer Brown Shaw and Becki D. Graham
The Daily Recorder
2008-08-26

CALIFORNIA SUPREME COURT EMPLOYMENT LAW DECISIONS 2007-2008
By Jennifer Brown Shaw and Shane K. Anderies
The Daily Recorder
2008-07-31