The DOJ announced on Friday, June 16, 2017, that it was reversing its position on the validity of class action waivers in arbitration agreements and would file an amicus brief in support of the employer's position in NLRB v. Murphy Oil. I get that a change in administration can bring with it a change in policy, but this is unfortunate in that it overtly politicizes a legal analysis that should at least attempt to be a textual analysis that doesn't depend on which way the wind blows. I suppose Judge Posner has the right of it when he argues that all the supposedly dispassionate judicial reasoning is just a veneer over personal preference and wanting anything as significant as this issue to be decided apolitically is laughably naive. Still, I think the better approach for the DOJ would have been to undertake the equivalent of a noisy withdrawal, officially retracting its position and choosing to take a neutral position in the case.
Hot off the presses, or, more correctly, hot off the e-mail case activity notifcation system, the California Supreme Court has granted the Petition for Review in Iskanian v. CLS Transportation of Los Angeles, Supreme Court Case No. S204032. Letters in support of a Petition aren't listed on the docket, but I sent in a letter in support of review, focused on the proliferation of poor analysis related to the NLRB's D.R. Horton decision.
The UCL Practitioner's tea leaf reading looks to be right on the mark thus far...
Fairly hot off the presses, we have the National Labor Relations Board's decision in D.R. Horton, Inc. The decision addresses, among other things, whether a mandatory arbitration agreement that bars class or collective actions violates certain employee rights under the National Labor Relations Act. Hint: it does. Very important for certain wage & hour cases.
Full disclosure: I contributed an amicus brief in response to the NLRB's invitation for such briefs, as noted in footnote 1.
In California Grocers Association v. City of Los Angeles (July 18, 2011), the California Supreme Court considered whether a worker retention ordinance -- regulating the ability of some employers to summarily replace a workforce after purchasing the business -- is preempted as intruding upon either matters of health and safety already regulated by the state or matters of employee organization and collective bargaining fully occupied by federal law. The six Justices in the majority explained in their 38-page opinion that the neutral ordinace promulaged by the City of Los Angeles did not run afoul of preemption landmines. The dissenting opinion, all 27 pages of it, concluded otherwise, essentially on the ground that the NLRA is intended to confer upon employers the right to hire anyone they want. The majority wasn't persuaded by this analysis, opining instead that the NLRA was actually passed to protect employees and regulate employers. Crazy talk.
The City of Los Angeles passed an ordinance much like those passed in other municipalities. The Los Angeles Ordinance, focused on grocery stores, was summarized by the Court:
For grocery stores of a specific size (15,000 square feet or larger) that undergo a change of ownership, the Ordinance vests current employees with certain individual rights during a 90-day transition period. First, the incumbent owner is to prepare a list of nonmanagerial employees with at least six months' employment as of the date of transfer in ownership, and the successor employer must hire from that list during the transition period. (L.A. Mun. Code, § 181.02.) Second, during that same period, the hired employees may be discharged only for cause. (Id., § 181.03(A)-(C).) Third, at the conclusion of the transition period, the successor employer must prepare a written evaluation of each employee's performance. The Ordinance does not require that anyone be retained, but if an employee's performance is satisfactory, the employer must "consider" offering continued employment. (Id., § 181.03(D).) If the workforce is unionized, however, the union and the employer may agree on terms that supersede the Ordinance. (Id., § 181.06.)
Slip op., at 2. The California Grocers Association did not like this ordinance and sued to enjoin its implementation.
The Court began its analysis with state law preemption in the health and safety field. The majority had little difficulty explaining why an ordinance regulating mass terminations had little direct impact on any health and safety regulations controlling how food is handled in grocery stores.
Next, the Court examined federal preemption:
We consider as well whether the Ordinance is preempted by the NLRA, a federal law enacted to protect "the right of employees to organize and bargain collectively." (29 U.S.C. § 151.)
Slip op., at 11. Summarizing the post-Machinists preemption cases, the Court first explained that preemption was directed at regulations of bargaining process, not local employment laws setting substantive minimum labor standards for all employees. Next, the Court considered whether there was evidence of a clear and manifest congressional intent to bar at any level the regulation of employee retention during ownership transitions. Working their way through the history of such decisions, the Court found solid support for the notion that the NLRA was silent as to an obligation to hire the employees of a purchased business. The Court finished its analysis by concluding that the retention ordinance should not have a meaningful impact on successorship obligations.
Finally, the Court declined to set aside the ordinance on equal protection grounds, observing that a rational relationship exists between the stated goal of the ordinance and the decision to focus on large grocery stores.
The dissent contested the majority's decision by asserting, again and again, that the NLRA provides employers with a protected right to hire as they see fit. The majority directly dispatched this argument with great brevity, and the length of the dissent does not make it more persuasive in my view.