Wage Law

We've noticed that the Employment Law Roundtables in California Lawyer do not offer a particularly even or broad sampling of viewpoints. Given recent legal and political events, the January 2009 roundtable, in particular, seemed particularly worthy of an employee's representative or two:

This month, with the inauguration of Barack Obama as the country's 44th president, comes the promise of closely watched changes to U.S. employment law and policy. Most notably, the Employee Free Choice Act (EFCA), which President-elect Obama has pledged to sign if given the opportunity, would dramatically modify the National Labor Relations Act in ways likely to increase union membership and impact the collective bargaining process. Additionally, pending legislation such as the Lilly Ledbetter Fair Pay Act and the Working Family's Flexibility Act will introduce new challenges and opportunities for employers and legal practitioners.

Our panel of experts from Northern California discuss the potential effects of this legislation, as well as recent, influential cases and decisions, such as Brinker Restaurant Corp. vs. Supreme Court of San Diego, Harris vs. Superior Court, and Nadaf-Rahrov vs. Neiman Marcus. They are Mike D. Moye and Diane Marie O'Malley of Hanson Bridgett; JoAnna L. Brooks and Bradley Kampas of Jackson Lewis; and Tom McInerney of Ogletree, Deakins, Nash, Smoak & Stewart. The roundtable was moderated by freelance writer Bernice Yeung and reported for Barkley Court Reporters by Krishanna DeRita.

Even the one notable Barack Obama supporter was a defense lawyer whose firm specializes in representing management. These are all fine lawyers, from what I can tell, but the panel is single-minded, and the discussion is one-sided:

It will also be important for the court to articulate, with the Brinker and the Brinkley decisions, a standard that is sufficiently helpful to avoid class certification because, even under Brinker and Brinkley, sufficient room for an allegation of a practice amounts to a policy that would permit class certification. In talking to some plaintiffs' lawyers, there are a number of them who don't view Brinker as the end of the road as much as introducing a twist or turn.

The Court of Appeal (Second Appellate District) basically created such a high standard in Harris that it would be very difficult for any employee to be deemed an administrative employee. Thankfully, the supreme court granted review of it, and the hope is that the supreme court will limit the Court of Appeal decision. As it stands, the decision is not very helpful in the context of class certification; it would make it virtually impossible, except for the most senior employees at a company, to be deemed administratively exempt from overtime.

Nadaf-Rahrov v. Neiman Marcus is an unfortunate case from the Court of Appeal (First Appellate District). ... The recent Court of Appeal decision is certainly not a helpful case for the defense, but it's not surprising. What's troubling to me about this decision is that the court essentially said that when an employer is considering whether or not to terminate someone in this situation, they have to consider whether the company might have an appropriate job opening in a few months such that the employer would have to keep the employee on leave until that potential job possibly opens up.

Some, or even all, of these perspectives may prove correct. But they do not reflect an accurate sampling of views on these subjects, which is what a reader would reasonably expect from something called an Employment Law Roundtable. Moreover, this panel's composition is not an abberation. The two prior roundtables, in August 2008 and February 2008, had similar panels. last  If they are going to invite only defense lawyers, and it's nothing more than a forum for promoting the viewpoints of the defense bar, they should at least have the decency to label it the Employment Defense Roundtable.