Blame it on the 40-hour work week legislation. Point a finger at California’s mostly Democrat-controlled government or an effective pro-labor lobby. Perhaps California is just a testing ground for the rest of the country. Whatever the reason, employment law has changed so rapidly in California in recent years that businesses have a hard time keeping up with the revised regulations and laws.

While the trend started several years ago, a glance at state legislation that became effective this year makes it clear employees have gained considerably more rights. In addition to the California Family Leave Act, new laws include changes in age discrimination, which now begins at age 40; Cobra coverage for up to 36 months, a 60-day written notification for mass layoffs by employers of 75 or more and greater protection for undocumented workers.

California’s employment laws are possibly the most pro-employee in the nation. “I have national clients who call and say that they can do things everywhere else but in California,” says James Peterson, a business litigation attorney with Higgs, Fletcher & Mack LLP. “The reputation of our state is that it’s pro-employee and that makes it difficult to do business here.”

One result of the swiftly evolving labor law front is California businesses are relying on employment attorneys to assist with both the traditional litigation as well as putting in place proactive, preventative policies and procedures. In short, lawyers are becoming indispensable human resources consultants.

“All this new legislation is frustrating for most employers,” says Thomas S. Ingrassia, chair of Klinedinst, Fliehman & McKillop’s employment and labor law department and its CFO. “It means that a business has to stay on top of things, which is difficult to do if they’re not tied into Sacramento. They could be out of compliance and not even know it, running the risk of costly lawsuits. That’s why many businesses are using their attorneys as a business partner rather than just for litigation support.

“When I’m dealing with clients, I look at their overall business agenda. I help them prevent problems rather than waiting for them to get sued and then fighting for them two years in court.”

While he represents businesses, Ingrassia’s background is employee-oriented, starting with having a father who was a labor union official. His undergraduate degree is in accounting and he earned his law degree at Boston University School of Law. He is the president of the San Diego Society for Human Resource Management. An author and speaker on the subject, his specialty is training companies to comply with employment regulations.

“Most of the time, when companies work with a lawyer, it’s a negative situation,” he says. “I get to work with businesses in a positive manner to help create their culture and build their business plan.”

That personal relationship cited by Ingrassia is a common draw for employment lawyers.

For Arlene Prater, a partner at the San Diego office of Best Best & Krieger LLP, who specializes in employment law litigation, the one-on-one with clients is what keeps her interested in this field.

“I feel I can help employers in terms of the day-to-day operation,” Prater says. “This area has the most highly emotional cases, unlike contracts and land disputes, so there’s a lot of hand-holding. I end up developing a close relationship with people. Because of that, it’s very interesting.”

The relationship between employee and employer often is emotionally charged. As the law grapples with these emotions, regulations are continually shifting.

“There are now few employee issues that can be handled without a human resources person or an attorney because the laws are so complex,” she says. “It’s almost impossible to keep up with the changes. So there’s a significant exposure to litigation. And once there’s litigation, it’s very expensive, not only in terms of cost, but the time it takes away from business, the emotional toll and the potential of negative publicity.”

Prater has litigated cases in the state and federal courts regarding discrimination and labor laws. A graduate of the University of Wisconsin and the University of San Diego, she worked with the San Diego County Counsel’s office for 11 years. She writes and speaks on employment issues as well as consulting with businesses regarding collective bargaining, contract negotiations, grievance and arbitration proceedings and union representation.

The job’s variety keeps her coming back for more.

“Its interesting to work with so many different types of businesses,” she says. “There’s never a dull moment in this field.”

One reason for the changes in labor laws is the definition of the employer-employee relationship is constantly in flux.

“It’s the evolution of the law and society,” explains Lois Kosch, a partner with Gray, Cary, Ames & Frye. “As we change, new situations evolve where the law has to step in to maintain a level of fairness. People spend so much time at work that they identify so much with their jobs. So it’s emotional when they lose it, which can lead to litigation. That’s why this area of the law changes all the time. It’s very cutting edge.”

This trend is particularly seen in increased litigation involving disabilities, age discrimination and work hours issues. “These laws are meant to protect employees, but sometimes they go too far and tie the hands of the employer,” says Kosch, who earned her bachelor’s from Adelphi University and her juris doctor degree from Rutgers University School of Law.

Kosch specializes in sexual harassment, employment discrimination and wrongful termination matters. A speaker and author on the topics, she counsels employers on hiring and firing issues. Any complaints or threats of a labor lawsuit, she says, need to be taken seriously.

“It’s best to take preventative measures,” she says. “If a company doesn’t have a human resources department, then the chamber of commerce has information that can be helpful on its Web site.”

Righting Old Wrongs?

Tom Tosdal, a partner with Tosdal, Levine, Smith, Steiner & Wax, says the current legislative changes are long overdue.

“What the legislature has been doing is righting an imbalance that’s long been in the favor of the employer,” says Tosdal, whose firm represents a large number of labor unions and employees. “There’s been a Marie Antionette Syndrome, where employers want to have their cake and eat it too. Now there’s a political climate receptive to fixing the problems in key areas where pain has been inflicted in the past, to make it a more balanced playing field (for employees).”

Tosdal specializes in representing employees. He began defending the rights of individual workers after earning his law degree from Harvard in 1975. His undergraduate degree is in political science from the University of California, Santa Barbara and his first legal job was as staff counsel in cases against growers regarding agricultural labor relations law.

“That’s when it got into my blood,” he says. “I think the cause is righteous. Work defines people and their dignity more than we admit.”

Allowing employees to pursue a legal course of complaint is the common theme of many of the new labor laws. Some laws that were proposed failed to get out of the Legislature.

“It could have been a lot worse,” says James Peterson of Higgs, Fletcher. “AB 2989 required employers to provide severance pay based on length of employment and AB 1599 barred mandatory arbitration in the fair housing disputes.”

Peterson comes from a business background, with a master’s and a law degree from the University of Utah. He counsels businesses on labor law, policy manuals, employee handbooks, termination decisions and disability management.

“I like to work with a business on its strategic planning and budgeting,” he says. “That way, I can blend my experience in business and labor law. I find that when a client calls, they don’t just want someone who quotes the law, they want a solution to their business problem. That’s why it’s important that a business have an attorney who specializes in labor law, not someone who dabbles in it.”

A Dot-Com Legacy

After almost 40 years in the field, Robert W. Bell Jr. has seen many changes in labor law. “I saw the biggest change come with the dot-com and high-tech era,” says Bell, an attorney with Heller Ehrman who has been listed in The Best Lawyers in America. “That’s when employees began being shareholders, so that their goals changed. They’re into more than just earning wages, so we won’t see as much union organization anymore. They want to participate in a company’s future.”

Bell, who has a bachelor’s from the University of Colorado and law degree from Hastings School of Law, has represented such clients as Qualcomm, the San Diego Zoo, Sony Entertainment, the Automobile Club of Southern California and The Salk Institute. He says this shift in employee-employer relationship is the key to why there’s so much legislative change in labor law. Everyone, he says, benefits.

“It’s making employers more proactive,” he says. “Smart employers don’t waste time on finding ways around the law. If they’re employee-oriented to begin with, most likely they won’t get in trouble.”

As far as the future, he has just one prediction regarding the large number of changes to labor laws. “I don’t see any relief in sight,” he says. “That’s what makes this field so vital. It’s ever changing.”