   Jim Peterson, business litigation attorney at Higgs Fletcher & Mack, says his national clients cringe when he mentions California. (photo/lambertphoto.com)
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If Pat Benatar is right and love is a battlefield, what about work? Groups composed of people like us gather each day to accomplish some business or civic purpose, but inevitably disputes arise.
These days, fighting about work is more complex, better organized and (in California) fueled by five years of former Gov. Gray Davis. The result is boom times for plaintiff attorneys and their corporate counterparts.
Businesses that employ any appreciable numbers have to be familiar with such exotic legal subcultures as classification law, wage hour provisions and a variety of retaliation scenarios.
“Talk about your minefield,” says Terry Chapko, senior counsel in the litigation department at Foley & Lardner. “In California especially, employers need assistance in complying with the law.”
Short of retaining representation, employers can join organizations like the Society of Human Resources Management that keeps members updated on the latest cases and trends. But Chapko and other practitioners suggest that employers partner up with a human resources consultant, or someone who’s looking out for the employer’s interest.
Employers experiencing relative quiet on the labor front can get swept up in potentially expensive class action suits. Chapko cites one such case working its way through Los Angeles Superior Court involving 109 defendant employers fighting a class action based on the wording of the “Have you ever been convicted of a crime?” question on their employment applications.
“You can’t ask if someone’s been convicted of a felony,” Chapko says. “What if they were convicted when they were 16 and the record is sealed? Why should the employer have more access to that information than anyone else?”
More common are the “you fired me so I’ll sue you” cases that demand employers be rather meticulous in their record keeping about disputes with employees. “If you don’t have someone to help you through this, it’s very hard,” Chapko says. “I wear contact lenses, and in California, I’m disabled because under the law you can’t take corrective measures into account in determining if someone is disabled. There have been hundreds of laws passed in the past five years of Gray Davis. I have a hard time keeping up with them and I do this for a living. And paid family leave starts July 1.”
Trade groups such as the National Restaurant Association also have services they offer to members and are worth checking out, Chapko says.
Singling Out California
“My national clients just cringe when I mention California,” says Jim Peterson, business litigation attorney at Higgs Fletcher & Mack. “Under a new law, if an employer goes to the employment commission to defend a claim and loses, let’s say they award $5,000 in damages and $5,000 in penalties. If the employer appeals and the award is reduced there’s a California Supreme Court case that says because the award was reduced, each side bears its own attorney fees. Well, the legislature passed a new statute so if an employer gets hit with a $10,000 judgment, unless it can be reduced to zero, the employer runs the risk of having to pay the employee’s legal fees on appeal. In Alabama they say, ‘you gotta be kiddin’ me.’”
On the national scene, Peterson says he sees increases in class actions and so-called retaliation firings in which the employee complained about some treatment and the employer fired the worker. Overtime is a hot area in the wage law field. Part-time workers who work more than eight hours in a day are eligible for overtime in California; Peterson says the wage and hour provisions are so complicated that the business person needs help in assessing possible liability.
The implications for the future are that both employers and employees are backing away from the warm fuzzies both sides say they want. “There is a relationship between legislation and outsourcing,” says Peterson. “Employers are trying to insulate themselves through independent contractors and outsourcing. On the other hand, relationships between employers and employees are becoming more codified and more contentious.”
 Mary Dollarhide in the San Diego office of Paul Hastings says the types of cases her firm sees are changing. (photo/lambertphoto.com)
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A Change In Cases Litigated
The kinds of cases most likely to end up in a lawyer’s office also are changing, says Mary Dollarhide, who heads up the employment law practice in the San Diego office of Paul Hastings.
“Our practice is increasingly focused on class actions and wage hour cases,” she says. A few years ago, sex, age, race discrimination were predominant, but “that’s entirely flipped around. Now it’s classifications of workers under wage and hour laws.
“That’s not so surprising,” Dollarhide continues, “when you stop to consider many of these regulations originated in the ’30s as far as who is an exempt employee, and who is a professional, and the standards used then have no application to today’s workforce. There’s a question whether an information technology worker making a hundred grand is entitled to overtime or not. It matters very much what their exact duties are. This has created a morass in terms of how the employers comply and how much litigation is resulting because of classifications.”
Has the spate of labor litigation made it more likely that other employees will want to sue their bosses? “There’s some of that,” Dollarhide says. “There’s a lot less of the loyalty factor that would inhibit suits. But there’s also the state of the economy. When the economy was on a tear, we remained busy but we didn’t see as many lawsuits coming in the door. If people got fired or laid off, they walked across the street and got a new job. But when the economy turned south, people have no opportunity so they start thinking about all the negative experiences they had at an employer and gravitate toward litigation.”
Immigration’s Future Role
“I never underestimate creative plaintiff’s counsel,” says Jeremy Roth managing director of the San Diego office of Littler Mendelson. Littler is a national labor law firm based in San Francisco that has 400 lawyers in 29 cities. California’s 6,000 provisions in the state labor code give the state the nation’s most employee friendly body of law, Roth says.
With a small company, any one violation is manageable, says Roth, but “lump enough claims together and it’s a big deal” for clients such as Sony and Lowe’s home improvement stores.
Roth expects the labor wars to move onto other battlefields. “It will be interesting to see what happens to the Department of Industrial Relations under the new governor,” he says. “And an immigration amnesty program will have a large impact on employers.”
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