Service Employees International Union, Drivers, and Consumer File Constitutional Challenge to Proposition 22 in California Supreme Court

On Tuesday, January 12, 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 the California Supreme 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 California Supreme Court filing can be found here.

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

Court Rejects Hollywood Talent Agency’s Motion to Enjoin Writers Guilds’ Collective Action to Protect Members’ Right to Unconflicted Agent Representation

On December 30, 2020, the Central District of California rejected an attempt by talent agency William Morris Endeavor (“WME”) to preliminarily enjoin the campaign by Writers Guild of America, West and Writers Guild of America, East (“the Guilds”) to eliminate talent agencies’ conflicts of interest.  WME sought to enjoin the Guilds from enforcing a talent agent Code of Conduct, which bars talent agencies that are authorized to represent Guild members from providing conflicted representation to Guild members.

 In April 2019, the Guilds adopted the Code of Conduct, which bars talent agency practices that result in serious financial conflicts of interest between Guild members and the talent agencies that the Guilds authorize to represent Guild members.  At that time, thousands of Guild members terminated their representation by talent agents who had not signed the Code.  Since that time, every talent agency in the industry except for WME has agreed to terms with the Guilds that prevent the talent agency from engaging in these serious financial conflicts of interest, allowing Guild members to resume representation by agencies other than WME.  In the lawsuit, WME challenges the Code of Conduct under federal antitrust law and, via its preliminary injunction motion, sought a court order permitting WME to represent Guild members, during the duration of the lawsuit, without abiding by the same restrictions that apply to every other talent agency.  As a result of defeating that motion, the Guilds may continue their campaign of ensuring that talent agencies that represent Guild members put Guild members’ interests first.  The Guilds and an individual writer-plaintiff are also continuing to pursue counterclaims against WME for breach of fiduciary duty, fraud, and California antitrust violations.

Altshuler Berzon is lead counsel representing the Guilds and individual writer-plaintiff in this litigation, William Morris Endeavor Entertainment LLC v. Writers Guild of America, West, Inc. et al.  You can read the decision here.

Federal Court Vacates Trump Administration Rule Targeting Homecare Workers’ Unions

The U.S. District Court for the Northern District of California today issued a decision in State of California, et al. v. Azar, vacating a Trump Administration regulation that sought to prohibit homecare workers who provide services under states’ Medicaid programs from paying for benefits like health insurance and union dues via payroll deduction. The Court held that the regulation was legally erroneous and contrary to law.

Homecare workers, who are predominantly women of color, do critical, lifesaving work but are typically paid poverty wages and denied benefits like health insurance or sick leave.  Oregon, Washington, California, Illinois, Minnesota, Connecticut, Massachusetts, and Virginia have enacted laws allowing Medicaid-funded homecare workers to collectively organize and bargain with state Medicaid agencies over basic terms and conditions of employment, such as wages, sick leave, and insurance.  As a result, homecare workers in these states have greatly improved their wages and benefits, and the states have benefitted from a homecare workforce that is better trained, resourced, and has much less turnover.

In July of 2019, the Centers of Medicare & Medicaid Services issued a rule that, for the first time in history, interpreted a longstanding provision of the Medicaid Act to prohibit Medicaid-funded homecare workers from using payroll deductions to pay for benefits like insurance or union dues.  This legal theory was promoted by anti-union groups, and if allowed to stand, would have weakened homecare workers’ unions and threatened homecare workers’ hard-fought gains.  States could have lost millions of dollars in Medicaid funding simply for recognizing homecare workers’ right to organize.  Today’s court order restores the status quo.

The lawsuit was initiated by a coalition of states led by California.  Altshuler Berzon LLP represented Service Employees International Union Local 503, United Domestic Workers AFSCME Local 3930, and several individual homecare workers from across the country, who intervened in the lawsuit to challenge the regulation.

McDonald’s Worker Files Lawsuit Alleging Retaliation for Raising COVID-19 Safety Concerns

On October 16, 2020, Maria Ruiz filed a wrongful termination lawsuit in Santa Clara County Superior Court alleging that she was unlawfully fired in retaliation for reporting and protesting unsafe conditions—including failure to provide masks and handwashing supplies and to enforce social distancing—at her corporate-owned McDonald’s store located at 2040 N. First Street, San Jose, California.  The lawsuit alleges that Ms. Ruiz participated in multiple protests over COVID-19 safety conditions and reported her concerns to management and to Cal-OSHA and the Santa Clara Public Health Department, but that McDonald’s responded by retaliating against her by cutting her hours and then firing her.  Ms. Ruiz is represented by Altshuler Berzon LLP.  You can read more about the case here.

Black Workers File Lawsuits Alleging Racial Discrimination by McDonald’s and Retaliation for Speaking Out

On October 13, 2020, Black workers at a corporate-owned and operated McDonald’s restaurant located in Lakeland, Florida, filed an amended complaint alleging that they were fired for filing an earlier civil rights lawsuit against McDonald’s in the U.S. District Court for the Middle District of Florida. Plaintiffs Monica Scott and Augusta Moody alleged that McDonald’s used trumped up discipline as an excuse to fire them less than three months after they filed their original lawsuit.  Together with Plaintiff Faith Booker, they alleged in the original lawsuit that their general manager made racist comments about Black people, created a hostile work environment, and subjected Black workers and customers to discriminatory treatment.  The lawsuit further alleges that the regional manager and a human resources representative notified about the discriminatory behavior failed to remedy the situation.  Plaintiffs are represented by Altshuler Berzon LLP, Peter Helwig of Harris & Helwig, PA, and Mary Joyce Carlson.

Also on October 13, 2020, Black workers at a franchise-operated McDonald’s restaurant located in Rock Island, Illinois, filed a complaint in the U.S. District Court for the Central District of Illinois alleging that McDonald’s subjected them to a hostile work environment and disparate treatment.  Plaintiffs Stephanie Stevenson and Selynda Middlebrook, along with the father of a minor, A.G., alleged that managers called Black workers “ghetto” and “smelly” and said Plaintiff Middlebrook “shouldn’t exist,” reduced the hours of Black workers to the point that they were unable to support their families, and eventually fired Stevenson when she complained.  Plaintiffs are represented by Altshuler Berzon LLP and Dowd, Block, Bennett, Cervone, Auerbach & Yokich.

Ninth Circuit Rejects Post-Janus Challenge to Public Sector Union Membership Agreements

September 16, 2020.  The Ninth Circuit Court of Appeals today issued a published decision in Belgau v. Inslee, No. 19-35137, rejecting claims by former union members, represented by a conservative advocacy organization, who alleged that their First Amendment rights were violated when their state employer deducted union membership dues that the plaintiffs themselves had agreed to pay in exchange for union membership rights and benefits.  The Court joined what it called the “swelling chorus of courts” recognizing that Janus v. AFSCME, Council 31, 38 S.Ct. 2448 (2018), did not invalidate voluntary union membership agreements.  Belgau is the first decision from a federal Court of Appeals addressing similar claims.

Altshuler Berzon LLP represented the Washington Federation of State Employees, AFSCME Council 28 in Belgau.  The firm also represents the union defendants in many other cases in which federal district courts have rejected similar claims brought against public sector unions by the same conservative advocacy organization, and other similar organizations, in the wake of the Supreme Court’s Janus decision. 

The Ninth Circuit’s decision is available here.  Posts about previous victories in similar cases, including in many cases the Court in Belgau cited, can be found here, here, here, and here.

Sixth Circuit Rejects Constitutional Challenge to Exclusive Representative Collective Bargaining

August 25, 2020 – The U.S. Court of Appeals for the Sixth Circuit today rejected a constitutional challenge to Ohio’s use of a democratic system of exclusive representative collective bargaining to set employment terms for public school teachers. Like many other states, Ohio allows units of public employees, if they choose, to elect a union representative to negotiate with the public employer about unit-wide terms and conditions of employment. In the case before the Sixth Circuit, one public school teacher – represented by the Buckeye Institute – argued that these collective bargaining systems should be invalidated as a violation of the First Amendment, even if public employees do not have to join or financially support the majority-chosen union representative. The Sixth Circuit rejected that argument as foreclosed by Supreme Court precedent, thereby reaching the same conclusion as all the other courts to consider the same issue. Altshuler Berzon LLP represented the Marietta Education Association in defending the Ohio Law. The case is Thompson v. Marietta Education Association, et al., Sixth Cir. Case No. 19-4217.

Update on Lawsuit by Georgia Governor Against Atlanta Mayor Regarding Face Covering Mandates

On August 13, 2020, Governor Brian Kemp of Georgia withdrew his lawsuit challenging the City of Atlanta’s face covering mandate.  Following the withdrawal of the lawsuit and the Governor’s issuance of an executive order expressly permitting local jurisdictions to require masks in public, the Atlanta Journal-Constitution reported that multiple cities and counties were considering the adoption of such mandates. 

Altshuler Berzon LLP represented six labor unions in filing an amicus brief in support of the City’s position last month, together with Stanford Fagan LLC, Mary Joyce Carlson, Nicole Berner (Service Employees International Union General Counsel), Robert Molofsky (Amalgamated Transit Union, International, General Counsel), and Chris Bangs (Amalgamated Transit Union, International, Associate General Counsel).

You can read more about the unions’ amicus brief here.

Workers Win Preliminary Injunction Requiring Oakland McDonald’s Restaurant to Comply with COVID-19 Health and Safety Measures

On August 13, 2020, the Alameda County Superior Court issued a preliminary injunction requiring an Oakland McDonald’s restaurant to comply with 11 COVID-19 health and safety measures.  In the lawsuit, McDonald’s workers represented by Altshuler Berzon LLP allege that the restaurant’s inadequate health and safety practices, including requiring workers to work while sick and not ensuring sufficient cleaning, personal protective equipment, or social distancing, spread COVID-19 among workers and their families and created a public nuisance. The court indicated that the defendants’ conduct and the life-or-death consequences to workers justified a preliminary injunction. The injunction continues presumptively for six months. The case is Yamilett Olimara Osoy Hernandez, et al. v. VES McDonald’s, et al., Alameda County Superior Court, Case No. RG20064825. The restaurant is located at 4514 Telegraph Avenue in Oakland, California. You can read more about the case here.

Nevada Mining Company Recognizes Union as Part of Comprehensive Settlement of National Labor Relations Board Proceedings

August 10, 2020 — As part of a comprehensive settlement of unfair labor practice charges approved today by the National Labor Relations Board, Nevada Gold Mines, LLC, a joint venture of Newmont USA Ltd. and Barrick Gold Corp., has agreed to recognize International Union Operating Engineers Local 3 and honor the 2019-2022 collective bargaining agreement between Local 3 and Newmont.  Local 3 filed unfair labor practice charges after Nevada Gold Mines withdrew recognition from the Union, which since 1965 has represented Newmont’s employees at its Nevada mines that are included in the joint venture, and unilaterally altered the former Newmont workers’ terms and conditions of work.

Region 32 of the NLRB issued a complaint on Local 3’s charges in March 2020, setting a trial before an administrative law judge that was to have commenced in September.  In addition, the full NLRB authorized Region 32 to file a petition for injunctive relief in the U.S. District Court for the District of Nevada.  The injunctive relief sought would have required Nevada Gold Mines to recognize the Union, reinstate the collective bargaining agreement, and rescind its unilateral changes to covered employees’ terms and conditions of work at the Union’s request.  The Union appeared in the federal court proceedings as amicus curiae, and has worked closely with the NLRB’s attorneys in preparing the unfair labor practice case for trial. 

Shortly before a scheduled hearing on the NLRB’s injunction petition, Nevada Gold Mines agreed to settle all litigation.  Under the terms of the settlement approved today, Nevada Gold Mines will recognize the Union; comply with the terms of the 2019-2022 collective bargaining agreement; rescind unilateral changes to employees’ working conditions at the Union’s request; and reinstate and make whole a defined benefit pension plan that the company had terminated.

Altshuler Berzon LLP represented the Union in this litigation.