Unions File Briefs and Evidence in Support of California’s Crucial COVID-19 Workplace Protections

On January 19, 2021, Altshuler Berzon LLP filed amicus briefs and evidence to support emergency regulations adopted by Cal-OSHA in November 2020 to slow the spread of COVID-19 in the State, in two cases brought to overturn those regulations. Altshuler Berzon LLP represents, and filed the amicus briefs on behalf of, a multi-union coalition comprising the Service Employees International Union (“SEIU”), SEIU California State Council, United Farm Workers of America (“UFW”), International Brotherhood of Teamsters (“IBT”), United Food and Commercial Workers Union Western States Council, California Teachers Association, California School Employees Association, California Federation of Teachers, Transport Workers Union, California Federation of Interpreters, SMART-Transportation Division California State Legislative Board, and California Labor Federation.

After the emergency regulations were issued, two sets of industry groups filed suit and sought preliminary injunctions to block implementation of these critically important workplace protections, specifically challenging key provisions that require employers to provide paid leave to workers who need to quarantine because they have contracted or been exposed to COVID-19 in the workplace. The multi-union amicus briefs highlight the role that workplaces have played in the COVID-19 outbreak, particularly those workplaces in which employers have not followed public health guidance, and the importance of the emergency regulations in protecting essential workers. The unions also filed appendices of evidence, including numerous OSHA complaints filed by fast food workers as part of the Fight for $15 campaign, declarations from a public nuisance case filed by Altshuler Berzon LLP on behalf of fast food workers and their relatives at an Oakland McDonald’s restaurant in which unsafe workplace practices led to a COVID-19 outbreak, declarations from a similar case involving UFW and Foster Farms, and declarations from workers and union leaders at SEIU-United Service Workers West, UFW, and the IBT emphasizing the real and severe health threat caused by COVID-19 transmission in the workplace.

On February 25, 2021, the San Francisco Superior Court denied the industry groups’ request for a preliminary injunction, holding that the groups were unlikely to succeed on the merits of their challenges and that, even if they had been likely to succeed, the economic costs of compliance would be outweighed by the worker safety and public health considerations necessitating the standards.

Here are the brief and appendix in the National Retail Federation case, and here are the brief and appendix in the Western Growers Association case. The San Francisco Superior Court’s decision denying the preliminary injunction motions can be found here.

Service Employees International Union, Drivers, and Consumer File Constitutional Challenge to Proposition 22

On Thursday, February 11, 2021, the Service Employees International Union (“SEIU”), SEIU California, three drivers, and a consumer filed a constitutional challenge to Proposition 22, the November 2020 ballot measure that purported to exempt, from California’s labor and employment protections, drivers who work for transportation and delivery companies like Uber, Lyft, DoorDash, and Instacart.  These companies have long misclassified their drivers as independent contractors rather than employees, depriving them of the protections of state law.  Instead of complying with the clear mandates of the law after the enactment of Assembly Bill 5, the companies decided to spend over $200 million to convince voters to adopt a ballot measure exempting them.  However, as the petition filed today in Alameda County Superior Court demonstrates, that ballot measure violates the California Constitution and must be invalidated.

First, Proposition 22 deprives the California Legislature of its constitutional authority to establish and maintain a workers’ compensation system that protects workers’ health and safety and compensates workers in the event of workplace injuries.  Because Proposition 22 provides that the entire initiative is invalid if any application of its provision designating drivers as independent contractors is held invalid, Proposition 22 is invalid in its entirety.  Second, by designating certain subjects that are not even addressed by Proposition 22 as “amendments” to Proposition 22 that are off-limits to the Legislature except by a 7/8 vote of both houses, Proposition 22 interferes with the constitutional authority of the judicial branch to decide what constitutes an amendment to a ballot measure.  Third, in doing so, Proposition 22 also interferes with the California Legislature’s constitutional authority to legislate in areas that the ballot measure does not address.  Fourth, the provisions of Proposition 22 purporting to define “amendments” violate the California Constitution’s single subject rule, a constitutional mandate that protects voters against deceptive initiatives and that requires that Proposition 22 be struck down in its entirety.

The Alameda County Superior Court filing can be found here.

Altshuler Berzon LLP is counsel for petitioners in the case, along with Olson Remcho LLP.

Alaska State Employees Association Defeats Alaska Governor’s Attempt to Undermine Public Employee Collective Bargaining and Interfere with Union Membership

On February 8, 2021, the Alaska State Superior Court delivered a complete victory to the Alaska State Employees Association, AFSCME Local 52 (“ASEA”) in a dispute with the State of Alaska about the deduction of voluntary union membership dues.

In 2019, Alaska’s Governor Michael Dunleavy and now-former Attorney General Kevin Clarkson announced that the State would immediately and unilaterally implement a new policy to terminate all state employees’ union dues deductions and require state employee union members to annually renew their dues deduction authorizations after receiving a government “warning” that doing so would involve waiving their constitutional rights.  The State then sued ASEA, Alaska’s largest public employee union, seeking a declaratory judgment endorsing the executive branch’s new policy.  ASEA, represented by Altshuler Berzon LLP and Alaska counsel Dillon & Findley, PC, defended against the State’s claims and countersued, alleging that the State’s actions violated the collective bargaining agreement between the State and ASEA, the Alaska Public Employment Relations Act, and the Alaska Administrative Procedures Act, violated the separation of powers enshrined in the Alaska Constitution, and constituted bad faith dealing in violation of Alaska state law.

In late 2019, the Superior Court entered a temporary restraining order and preliminary injunction prohibiting the State from implementing its new policy while the case was pending.  On the parties’ subsequent cross-motions for summary judgment, the Superior Court granted ASEA’s motion in its entirety, denied the State’s motion, awarded ASEA more than $186,000 in damages, and permanently enjoined the State from taking any further action to enforce its unlawful policy.

The Superior Court’s summary judgment order can be found here.  The Superior Court’s prior Temporary Restraining Order and Preliminary Injunction Order can be found here and here.  And ASEA’s summary judgment briefs can be found here and here.

Settlement of Voting Rights Act Litigation Ensures Spanish-Language Ballots, Election Materials, and Assistance in 31 Florida Counties for Ten Years

On February 1, 2021, voting rights advocates represented by Altshuler Berzon LLP entered a 10-year settlement agreement with 31 Florida county Supervisors of Elections to provide Spanish-language ballots, election materials, and oral assistance to help ensure that Spanish-speaking voters educated in Puerto Rico and protected by Section 4(e) of the federal Voting Rights Act can vote effectively.  The settlement marks the successful resolution of Marta Rivera Madera, et al. v. Kim Barton (formerly Laurel Lee) (formerly Ken Detzner), et al., N.D. Fla. Case No. 1:18-cv-152-MW/GRJ.  The case is one of the largest lawsuits ever brought under Section 4(e) of the Voting Rights Act, and even before the settlement had already resulted in substantial expansions of access to Spanish-language ballots, election materials, and assistance throughout Florida. 

Under the settlement, 31 Florida county Supervisors of Elections will provide the following Spanish-language services in their counties for the next 10 years:

  • Spanish-language official ballots
  • Spanish-language polling place materials and assistance
  • Spanish-language vote-by-mail ballots and request forms
  • Spanish-language secrecy envelopes (including voter’s certificates) and instructions with all Spanish-language vote-by-mail ballots
  • Spanish-language translation of the Supervisor’s official websites
  • A county-specific hotline to assist Spanish-speaking voters during voting periods
  • Spanish-language signage at the Supervisor’s offices informing voters of the availability of these Spanish-language resources

The full settlement and motion to dismiss pursuant to the settlement can be found here and here.

For a summary of the history of the case, previous injunctive relief won before the 2018 and 2020 elections, and statewide rules adopted in response to this litigation in the spring of 2020 that now require Spanish-language ballots across the entire state of Florida, see here.