Ninth Circuit Affirms the Dismissal of Lawsuit Challenging Seattle Ordinance Permitting Collective Bargaining by Uber and Lyft Drivers

On August 9, 2018, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of Clark et al. v. City of Seattle et al., one of two lawsuits challenging a Seattle ordinance that establishes a process for independent contractor drivers who contract with for-hire and taxicab transportation companies, including companies like Uber and Lyft, to collectively organize and negotiate with the transportation company over the terms and conditions of their contractual relationships.

The City adopted the ordinance in January 2016.  This lawsuit was filed in March 2017, asserting that Seattle’s ordinance is preempted by federal labor law, violates the First Amendment, and requires disclosures in violation of the federal Drivers’ Privacy Protection Act.  The Ninth Circuit affirmed the dismissal of plaintiffs’ claims as unripe because no entity has yet been designated under the ordinance to represent any drivers and plaintiffs had failed to allege that any conduct prohibited by federal labor laws had occurred.  A separate case challenging the ordinance brought by the United States Chamber of Commerce remains pending.

Altshuler Berzon LLP, together with the Seattle City Attorney’s office, represents the City of Seattle in the litigation.  Altshuler Berzon partner P. Casey Pitts argued the case before the Ninth Circuit.

You can read the Ninth Circuit’s decision here.

Federal Court Rules Voters May Not Be Purged from Registration Rolls in Violation of National Voter Registration Act

On August 7, 2018, the United States District Court for the Middle District of North Carolina issued a major voting rights decision, ruling that the National Voter Registration Act (“NVRA”) prohibits the use of North Carolina statutes to (1) remove voters from the registration rolls based on a supposed change of address without following the NVRA’s required process, which involves a statutorily prescribed notice and a waiting period of at least two federal elections, and/or (2) remove voters for any reason within 90 days of a federal election unless based on individualized information.  This ruling will protect North Carolina voters from purges that have occurred in the past, when county boards of elections have improperly used these state processes to remove thousands of voters from the registration rolls based on mass challenges by “voter integrity” groups.

This case arose when the NAACP learned, shortly before the November 2016 election, that thousands of voters had been purged in at least three counties through mass challenges filed by private parties based solely on a single piece of mail sent to the voters that had been returned as undeliverable.  In many cases, the voters had not changed their residence or had simply moved to a different residence within the same county and thus remained eligible to vote.  County boards of elections nonetheless purged challenged voters unless they appeared at a hearing in person or submitted affidavits to defend their eligibility to vote.  In November 2016, within a week of the filing of the case, the court granted a preliminary injunction requiring the State Board of Elections and three North Carolina counties to restore the voter registrations of approximately 4,000 individuals whose registrations had been cancelled in the final weeks and months before the election.

Altshuler Berzon LLP, along with co-counsel, represents the plaintiffs, which include the North Carolina State Conference of the NAACP, the Moore County Branch of the NAACP, and individuals whose eligibility to vote had been challenged.

A copy of the court’s decision is available here.

Ninth Circuit Rejects Challenge to California’s SB 954

On July 30, 2018, the Ninth Circuit issued a unanimous opinion in Interpipe Contracting, Inc. v. Becerra, Ninth Circuit Case No. 17-55248, rejecting several legal challenges to California Senate Bill 954, which amended California’s prevailing wage law to clarify that public works contractors may only take credit against the prevailing wage requirement for contributions made to industry advancement programs when those contributions are made pursuant to a collective bargaining agreement, thereby ensuring that construction workers’ wages are not diverted without their consent.  The challengers, one of whom was represented on appeal by Pacific Legal Foundation, had argued that SB 954 was preempted by the National Labor Relations Act and also violated the First Amendment.  The Ninth Circuit, in a published opinion written by Judge Callahan, rejected both arguments, recognizing that SB 954 simply closed a loophole in prior law that some contractors were using to appropriate their employees’ wages without consent, and did not implicate any First Amendment concerns.  Altshuler Berzon attorneys represented the State Building and Construction Trades Council of California as amicus curiae in the case.

You can read the Ninth Circuit’s decision here.

Eleventh Circuit Revives Case Challenging Alabama’s Preemption of Birmingham’s Minimum Wage Law as Racially Discriminatory

On July 25, 2018, the Eleventh Circuit issued a unanimous published decision in Lewis v. Alabama, Eleventh Circuit Case No. 17-11009, reversing the district court’s dismissal of a lawsuit by fast food workers and other plaintiffs alleging that Alabama’s enactment of a law preempting all local minimum wage regulation, which was adopted in response to Birmingham’s decision to raise the minimum wage, was racially discriminatory.  The Eleventh Circuit held that plaintiffs had demonstrated the preemption law’s discriminatory impact, arising from the disproportionate number of Black workers in Birmingham who stood to benefit from the city’s minimum wage law.  The appellate court further held that the district court erred by applying the “clearest proof” standard, which it explained has no place in equal protection law.  Instead, the court applied the factors set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), and identified allegations in the complaint providing sufficient indicia of intentional discrimination to survive a motion to dismiss.  In doing so, the Eleventh Circuit emphasized that evidence of intentional discrimination may be circumstantial and that modern-day discrimination is seldom explicit.  Altshuler Berzon attorneys represented the plaintiffs on appeal.

You can read the Eleventh Circuit’s decision here.

Amicus Brief Filed in Support of Challenge to Unsecure Paperless Electronic Voting System in Georgia

On July 17, 2018, Altshuler Berzon LLP attorneys and co-counsel in Georgia filed an amicus curiae brief on behalf of Common Cause, the National Election Defense Coalition, and Protect Democracy in Curling v. Kemp (N.D. Ga.), No. 1:17-cv-02989-AT, supporting a challenge to Georgia’s use of unreliable and unverifiable touchscreen electronic voting machines that have no voter-verified, auditable paper trail.

The amicus curiae brief presents to the court overwhelming evidence in the public record that establishes that the threat to Georgia voters’ constitutional rights posed by the use of these unreliable and unverifiable voting machines in the upcoming November election is very real, and urges the court to deny the state defendants’ motion to dismiss and to promptly consider and grant the plaintiffs’ anticipated motion for preliminary injunctive relief to protect the plaintiffs’ rights and Georgia’s democracy.

The Amicus Curiae Brief can be found here.  The Motion to file the amicus brief can be found here.

A press release about the brief from the amici curiae groups can be found here.

Lead Paint Initiative Challenged as Misleading and Deceptive Will Not Appear on California’s General Election Ballot

On June 28, 2018, the proponents of an initiative that Altshuler Berzon LLP attorneys and others challenged in the California Supreme Court as misleading and deceptive withdrew that initiative from consideration.  As a result, the initiative will not appear on California’s November general election ballot.

Titled the “Healthy Homes and Schools Act of 2018,” the initiative appeared on its face to be a straightforward measure to authorize taxpayer-funded bonds for cleaning up environmental hazards, including lead paint in California residences that, under People v. ConAgra Grocery Products Co. (2017) 17 Cal.App.5th 51 (“ConAgra”), pet. rev. denied, Feb. 14, 2018, the initiative’s paint-manufacturer backers were legally required to abate.  However, the effect of the initiative was to excuse those manufacturers from having to pay hundreds of millions of dollars to satisfy the public nuisance abatement judgment against them, which Altshuler Berzon LLP attorneys, as Special Appellate Counsel on behalf of the County of Santa Clara, the City and County of San Francisco, and numerous other public entities, had helped to preserve on appeal.

On June 26, Secretary of State Alex Padilla announced that the initiative had received enough signatures to qualify for the ballot.  That same day, on behalf of the County of Santa Clara and City and County of San Francisco, lawyers from Altshuler Berzon LPP, together with attorneys from the Santa Clara County Counsel’s office and San Francisco City Attorney’s office, filed an original petition for a writ of mandate in the California Supreme Court to prevent the initiative from appearing on the ballot.

Two days after the writ petition was filed, on the last possible day on which withdrawal was possible under state law, the proponents of the initiative formally withdrew it.  The underlying public nuisance litigation now returns to the trial court for recalculation and implementation of the abatement judgment.

Partners Michael Rubin, Stacey Leyton, and Matthew Murray were the principal Altshuler Berzon LLP attorneys who represented the public entities in the initiative challenge.

The writ petition may be found here.

California Supreme Court Rejects Attempt to Prevent Californians from Voting on Initiative to Regulate the Dialysis Industry

On June 13, 2018, the California Supreme Court denied a petition for writ of mandate filed by the dialysis industry seeking to bar from California’s November general election ballot an initiative (now known as Proposition 8) designed to improve the quality and affordability of chronic dialysis care that is critical to more than 66,000 Californians.  If enacted, Proposition 8 will provide financial incentives to the industry – which is dominated in California by two multinational, for-profit corporations – to invest in necessary health care quality improvements or to bring the companies’ profits into a reasonable relationship with the actual costs of providing quality treatment.  More than half a million Californians signed a petition expressing their support for placing Proposition 8 on the ballot.

Less than two weeks after the dialysis industry filed its extraordinary writ petition in the state Supreme Court, attorneys from Altshuler Berzon LLP submitted a detailed opposition on behalf of the initiative’s proponents, successfully urging the Court to summarily deny the writ petition and to allow the people of California to vote on the initiative.

The California Supreme Court Clarifies Rights of Employees Misclassified as “Independent Contractors”

The California Supreme Court issued a unanimous 82-page decision in Dynamex Operations West, Inc. v. Superior Court, Case No. S222732, that clarified how California courts should determine whether a worker is an “independent contractor” or an “employee.” Altshuler Berzon LLP participated in briefing and oral argument before the California Supreme Court. The Court’s ruling will affect hundreds of thousands of California workers in the gig economy as well as traditional workplaces, and will broadly extend the protections of the California Labor Code and wage orders to these workers.

Before the Supreme Court’s decision, the California courts used an unpredictable, multi-factor test to distinguish between employees and independent contractors. In Dynamex, the Court instead adopted a greatly simplified, three-pronged “ABC” test for determining whether companies “suffered or permitted” the work or working conditions at issue. Under that test, a worker is presumed to be an employee unless the employer can establish all three of the following requirements: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business. This standard will make it substantially more difficult for businesses to misclassify as “independent contractors” the workers who provide the business’s core services, and should result in a far greater number of workers enjoying the benefits accorded by law to employees.

Altshuler Berzon LLP attorneys submitted amicus curiae briefs in the case on behalf of three labor unions, and Altshuler Berzon LLP partner Michael Rubin presented oral argument before the California Supreme Court on behalf of all plaintiff-side amici.

To read the California Supreme Court’s decision, click here.

Altshuler Berzon LLP Lawyers Named 2018 California Lawyer Attorneys of the Year

Recognized for Immigration Law Achievement

On March 21, 2018, the Daily Journal awarded its 2018 California Lawyer Attorneys of the Year (CLAY) Awards to attorneys throughout the state, including Altshuler Berzon LLP.

Altshuler Berzon LLP was recognized for its work with attorneys from other firms, public interest organizations, and public agencies to obtain nationwide preliminary injunctive relief halting the Trump Administration’s efforts to end the Deferred Action for Childhood Arrivals (DACA) program and forcing the government to resume processing DACA renewal applications.  The relief, which the Daily Journal termed “a profound victory,” was issued by U.S. District Judge William H. Alsup in a case pending in the Northern District of California.  The DACA program protects from deportation some 700,000 “Dreamers” — undocumented immigrants who came to the United States as children — and permits them to work lawfully.  Altshuler Berzon LLP attorneys Jonathan Weissglass, Stacey Leyton, and Eric Brown worked on the case.

Court Finds First Amended Complaint Adequately Alleges Google Discriminated Against a Broad Class of Women Employees and Rejects Google’s Challenge to Gender Discrimination and Equal Pay Suit

On March 27, 2018, the San Francisco Superior Court overruled Google’s demurrer to an amended complaint filed by Altshuler Berzon LLP and co-counsel alleging that Google has engaged in systemic and pervasive pay and promotion discrimination against its women employees in California.  The court found that the amended complaint adequately alleges that Google has company-wide policies that pay women less than comparable men and that Google assigns women to lower-paying jobs based on gender stereotypes.  Based on those alleged policies and stereotyping, and Google’s failure to correct known gender pay differences, the court held that the amended complaint adequately alleges that Google intentionally discriminates against women.  Because Google’s alleged discriminatory policies and practices apply throughout the company, the court ruled that the lawsuit may continue against Google for the Engineer and Project Manager Covered Positions, in addition to the Software Engineer, Software Manger, Sales, and Early Childhood Education Covered Positions listed in the amended complaint.  The court found that “Plaintiffs’ claims are typical of the entire class, regardless of whether they held an ‘Engineer Covered Position’ or ‘Program Manager Covered Position,’ because the entire class was subject to the same compensation policies and practices.”

 

The court’s order can be found here.