Ninth Circuit Rejects Challenge to California’s Disclosure of Home-Care Aide List

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On February 14, 2022, the Ninth Circuit Court of Appeals, in HCAOA v. Newsom, rejected a challenge to a California statute that permits labor organizations to obtain registered home-care aides’ names and telephone numbers from the State, so long as a home-care aide does not object to such disclosure.

Two industry groups claimed that the California statute is preempted by the National Labor Relations Act because the state law makes it easier for home-care aides to organize and demand better wages, benefits and working conditions.  The Ninth Circuit held that the industry groups failed to demonstrate that they had standing to challenge the law and, therefore, directed the district court to dismiss the case.

Altshuler Berzon LLP represented SEIU Local 2015, which intervened in the case to oppose the industry challenge.

Ninth Circuit Rejects Challenge to California Law That Prohibits Public Employers from Deterring or Discouraging Union Membership

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On February 7, 2022, the Ninth Circuit Court of Appeals in Barke v. Banks affirmed the dismissal of claims brought by a group of individual local government elected officials challenging California Government Code Section 3550.  That law provides that a “public employer” shall not “deter or discourage” public employees from becoming or remaining union members or from authorizing membership dues deductions.  The plaintiffs brought a pre-enforcement suit against the members of California’s Public Employment Relations Board (PERB), alleging that the plaintiffs’ First Amendment rights were chilled because they feared Section 3550 would be enforced against them.

Altshuler Berzon LLP represented California Teachers Association, SEIU California State Council, the California Federation of Teachers, the California School Employees Association, and the California Labor Federation, as intervenor-defendants in both the district court and the Ninth Circuit, and presented oral argument on appeal.

The Ninth Circuit held that the plaintiffs had no standing to bring this pre-enforcement challenge because, as individual local government board members, they are not “public employers” subject to regulation under Section 3550.  The Court recognized that “section 3550 does not regulate Plaintiffs’ individual speech, and any restrictions the statute does impose on Plaintiffs’ ability to speak on behalf of their employers do not injure Plaintiffs’ constitutionally protected individual interests” because the First Amendment does not restrict the state from regulating the government speech of public employers or their agents when speaking on behalf of the government.

A copy of the Court’s opinion can be found here.

California Court of Appeal Clarifies Application of Relation-Back Doctrine in PAGA Cases

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On February 7, 2022, the California Court of Appeal granted a petition for writ of mandate filed by Altshuler Berzon LLP and co-counsel, resolving an important question regarding application of the relation-back doctrine to claims brought under California’s Private Attorneys General Act (“PAGA”). Former UBS Financial Services employee Andrew Hutcheson, who had timely notified the California Labor and Workforce Development Agency of alleged Labor Code violations by his former employer, sought to substitute as the plaintiff in a lawsuit filed by another former UBS employee, who also had timely notified the Agency of the same claims prior to Mr. Hutcheson. The trial court concluded that, with Mr. Hutcheson as the new named plaintiff, the PAGA claims at issue in the amended complaint could not relate back for statute of limitations purposes to those in the original complaint because relation back would frustrate PAGA’s exhaustion requirement. Mr. Hutcheson filed a petition for writ of mandate seeking to vacate the trial court’s order.

The Court of Appeal initially issued a summary denial of Mr. Hutcheson’s petition. Mr. Hutcheson then filed a petition for review in the California Supreme Court, which the Supreme Court granted, remanding the question to the Court of Appeal for plenary consideration. On remand, the Court of Appeal revisited Mr. Hutcheson’s writ petition and issued an opinion holding that the relation-back doctrine may apply in PAGA cases where a substitute plaintiff administratively exhausted claims after a first plaintiff. The Court of Appeal recognized that barring application of the relation-back doctrine in cases like Mr. Hutcheson’s would be “contrary to PAGA’s goal of strengthening Labor Code enforcement.”

Altshuler Berzon LLP, Clapp & Lauinger LLP, and the Wynne Law Firm represented Mr. Hutcheson in the appellate proceedings.

A copy of the Court’s opinion can be found here.

Altshuler Berzon LLP Seeks Justice for Lieutenant Colonel Alexander Vindman

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On February 2, 2022, Altshuler Berzon LLP and nonpartisan nonprofit Protect Democracy filed a civil rights conspiracy complaint in federal court in Washington, DC on behalf of Lieutenant Colonel Alexander Vindman (ret.) against former White House and Trump Campaign officials, including Donald Trump, Jr., Rudolph Giuliani, Julia Hahn, and Daniel Scavino, Jr., alleging a campaign of witness intimidation and retaliation against him after he was subpoenaed by Congress to testify during former President Trump’s first impeachment proceeding.

In July 2019, as part of his official duties as the National Security Council’s singular Ukraine expert, Lt. Col. Vindman listened to a phone call between former President Trump and Ukrainian President Volodymyr Zelensky, during which President Trump attempted to coerce Zelensky into publicly undertaking an investigation of then-former Vice President Biden and his son. Lt. Col. Vindman, a career public servant, was immediately concerned that President Trump’s attempt to pressure Zelensky was improper, and likely unlawful, and risked national security. Honoring his oath of office to support and defend the Constitution, he reported his concerns through appropriate internal channels.  Months later, Lt. Col. Vindman was twice called as a witness in impeachment proceedings against President Trump and provided sworn testimony.

The lawsuit alleges that, as a result, Lt. Col. Vindman became the target of an unlawful conspiracy by President Trump and his close aides and allies, including key figures in the media, to intimidate and retaliate against him for his testimony.  According to the Complaint, the defendants in the suit and other unnamed conspirators engaged in a coordinated campaign to falsely portray Lt. Col. Vindman as disloyal to the United States and to ruin his career in the military.  Neither the former president nor his conspirators have been held accountable for their blatant attempts to obstruct the impeachment proceedings.

The entire complaint can be found here.  A press release regarding the case can be found here.