Author: mmcadmin

Ten years ago, DCB and its co-counsel filed suit against Wal-Mart Stores, the largest private employer in America, on behalf of its female retail employees, alleging that the company discriminated against the women in pay and promotion opportunities.  After years of hard fought litigation, the United States Supreme Court will hear oral argument the Dukes v. Wal-Mart Stores, Inc. case on March 29, 2011.

Despite four lower court rulings upholding class certification, the Supreme Court will now determine whether or not this case will go to trial  as a class action, and in turn, whether or not thousands of aggrieved women will finally get their day in court to seek justice. The decision is expected by the end of June.

To learn more about the Wal-Mart class action, go to www.walmartclass.com.

In New York, New York, LLC, 356 NLRB No. 119 (2011), the NLRB held that employees of a restaurant subcontractor have the right under the NLRA to handbill on the property of the Las Vegas casino New York, New York, although they are employees of the restaurant subcontractor and not of the casino, which owns the property where they work.  The NLRB used the case as a vehicle to announce a new test for determining whether employees of someone other than the owner of the property where they work have a right to communicate with each other and customers on the property.

DCB represented the Culinary Workers Union Local 226 and Bartenders Union Local 165 before the Board and in earlier phases of this litigation—New York, New York Hotel & Casino, 334 NLRB 762  &  334 NLRB 772 (2001) and New York, New York, LLC, 313 F.3d 585 (D.C. Cir. 2002).

In Monterey/Santa Cruz Counties Building & Construction Trades Council et al. v. Cypress Marina Heights LP, 191 Cal.App.4th 1500 (2011), the California Court of Appeal upheld an innovative prevailing wage statute promulgated by the Fort Ord Reuse Authority (FORA), a regional redevelopment agency established to oversee the transition of the Fort Ord military base to civilian use.  The Court held that FORA could obligate private contractors to pay prevailing wages in the redevelopment of Fort Ord through inclusion of this obligation in deed covenants transferring the land.  The Court also held that labor unions and associations of union contractors had standing to enforce the prevailing wage deed covenant.

The decision is the first in California recognizing that labor rights can be enforced through deed covenants.  The Court also upheld the trial court’s grant of attorneys’ fees to the Plaintiffs, who initiated the lawsuit after FORA declined to enforce the deed covenants itself.

DCB represented the Plaintiffs in all phases of the litigation.

In Garcia v. Four Points Sheraton LAX, the California Court of Appeal upheld the City of Los Angeles “service charge” ordinance against a variety of constitutional challenges mounted by the hotel industry.  The Court of Appeal reversed the Los Angeles Superior Court, which refused to enforce the ordinance on the grounds that it was preempted by California state law.

The service charge ordinance was originally conceived by DCB attorney Rich McCracken.  It fills a huge gap in the law.  California Labor Code section 351 requires employers to let employees keep the tips they receive.  But “service charges” added to bills for banquets, room service, luggage handling and other hospitality services have been held not to be “tips”.  As a result, many hotels and restaurants simply pocket all or part of these charges even though guests think that the money is going to the employees providing the service.  Then the guests tend not to tip the employees because they think the employees are already being compensated through the service charges.

The Council acted to correct this situation.  Its ordinance requires that all service charges go to the workers providing the services.

When actions were filed to enforce the ordinance, the hotels responded by arguing that it was unconstitutional under the California and U.S. constitutions.  They argued that it was preempted by the state tip statute and also that it was a violation of equal protection, unconstitutionally vague and a “taking” of their property.  The Superior Court agreed that the ordinance was preempted by the tip statute.  The Court of Appeal disagreed.  It rejected the hotels’ contention that the legislative intent behind the tip statute was to guarantee to employers all income from customers except tips and held that Los Angeles is free to regulate what happens to service charges.  The court also ruled that it was proper for the City Council to single out the LAX corridor hotels because of their location and profitability.  It noted that the hotels themselves had caused a special district to be formed for their benefit.  The court also dismissed the hotels’ other constitutional arguments.  Among other points, the court said that it was not unconstitutional to exempt unionized hotels from the ordinance because unionized workers are better able to protect their interests.

DCB attorneys defended the ordinance in the superior and appellate courts, along with the Los Angeles City Attorney’s Office and Hadsell Stormer Keeny Richardson & Renick.

For more information on this law, please go to www.servicechargesforhotelworkers.com.

After nearly a decade of pre-trial wrangling, the U.S. Court of Appeals for the Ninth Circuit ruled today in a 137-page decision that hundreds of thousands of female Wal-Mart current and former employees who have worked at Wal-Mart stores at any time since June 2001 are entitled to proceed with a massive class action lawsuit charging sex discrimination by America’s largest retailer.

The case (Dukes v. Wal-Mart Stores, Inc.), which Davis, Cowell & Bowe and other co-counsel has been litigating for 10 years, alleges systematic discrimination against women in compensation and promotions at Wal-Mart and its subsidiary, Sam’s Club, throughout the United States. It is the largest civil rights class action in history.

In announcing the decision today, a majority of the judges, who heard the case, found that it was a proper class action for female employees who have worked at Wal-Mart since the suit was filed in June 8, 2001. The class can seek lost pay and injunctive relief. It sent the case back to the lower court to determine whether women who were employed prior to that date may be part of the class and whether the class can seek punitive damages.

For more information on this law, please go to www.walmartclass.com.

The Alameda County Superior Court issued a rebuke to Governor Schwarzenegger’s order fuloughing all state employees for three days per month regardless of the employees’ funding source.  Davis, Cowell & Bowe represented the Union of American Physicians and Dentists in the case and argued that the furlough order, as applied to “special fund” or federally funded state employees, was an abuse of discretion, violated state statutes, and interfered with the various state agencies’ ability to deliver needed state services. The court agreed and issued a writ of mandate commanding the State to cease furloughing the employees represented in the suit.  Articles about the case have appeared in various newspapers: http://www.sacbee.com/budget/story/2431574.html; www.latimes.com/news/local/la-me-furlough1-2010jan01,0,2238571.story

In Coast Hotels Ltd. v. UNITE HERE, WIPO Case No. D2009-1295 (2009), the World Intellectual Property Organization’s Arbitration and Mediation Center found the Union’s domain names were being used for legitimate non-commercial purposes in the Center’s first-ever case involving a union website critical of an employer. The Center, a United Nations agency that regulates the use of domain names by entities internationally, rejected the complaint filed by Coast Hotels, which argued that the Union had violated its trademark rights. The Union, represented by Davis, Cowell & Bowe, argued that it was making a fair, non-commercial use of the domain names www.coasthotels-badforbc.org and www.coasthotels-badforbc.info. The WIPO Center agreed, in a landmark decision that incorporated principles of international law, while also seeking to harmonize national laws and prior Center decisions. It found that the United Nations’ Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both recognize free speech and freedom of opinion, and that these were international, and not simply American, legal principles. The decision is available at: http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-1295.html

In UNITE HERE Local 26 v. South Bay Boston Management, Inc., 587 F.3d 35 (2009), the First Circuit Court of Appeals held, as a matter of first impression in the federal appellate courts, that first contract interest arbitration clauses in a card-check neutrality agreements are enforceable. The Court also rejected the employer’s federal preemption claim as time-barred and compelled the employer to submit to interest arbitration even though the card-check agreement had expired. Davis Cowell & Bowe represented UNITE HERE Local 26 in the litigation.

We are saddened by the death of Roland C. Davis, one of the firm’s founding partners. Roland will always be remembered as a true pioneer in the field, well respected by both friends and adversaries. An obituary for Roland was published in the San Jose Mercury News and may be viewed here.

In a landmark decision, the Ninth Circuit ruled that individual business owners may be held liable for federal minimum wage and overtime violations and that their liability is not cut off when their company files a bankruptcy petition. Boucher v. Shaw, 572 F.3d 1087 (9th Cir. July 27, 2009). Davis, Cowell & Bowe represented Plaintiffs in the case.