Monday, September 19, 2016

Ninth Circuit Upholds Public Officials' Right to Respond to Public Smears

In Mulligan v. Nichols et al., the Ninth Circuit upheld public officials' right to respond to disparaging public comments against them. The court's opinion reaffirmed that public officials' speech, by itself, is insufficient to support a First Amendment retaliation claim.

In Mulligan, a former Deutsche Bank executive, who had ties to the entertainment industry, was arrested during a drug-induced tirade. The executive filed an administrative complaint against the arresting officers claiming, in part, that they had used excessive force. Given the executive's former position, the administrative complaint attracted significant media attention. In response, the Los Angeles Police Protective League ("LAPPL") issued a press release exposing the executive as a frequent user of bath salts. Because of the press release and associated negative media coverage, the executive lost his job at Deutsche Bank.

The executive sued the City of Los Angeles, the officers, and LAPPL claiming they had retaliated against him for exercising his First Amendment Right to file an administrative claim against the City. The court denied his First Amendment retaliation claim. In support of its finding, the court stated:

"Retaliation claims involving government speech warrant a cautious approach by courts. Restricting the ability of government decisionmakers to engage in speech risks interfering with their ability to effectively perform their duties. It also ignores the competing First Amendment rights to the officials themselves. The First Amendment is intended to 'preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.' McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014) (quoting FCC v. League of Women Voters of Cal., 468 U.S. 364, 377 (1984)). That marketplace of ideas is undermined if public officials are prevented from responding to speech of citizens with speech of their own. See Bond v. Floyd, 385 U.S. 116, 136 (1966) ('The interest of the public in hearing all sides of a public issue is hardly advanced by extending more protection to citizen-critics than to legislators.')"

The court held that public officials' speech, by itself, is insufficiently adverse to give rise to a First Amendment retaliation claim. The executive was unable to show the City, the officers, or LAPPL took any action which affected his rights, benefits, relationship or status with the state. The court expanded, "As we stated in Nunez, '[i]t would be the height of irony, indeed, if mere speech, in response to speech, could constitute a First Amendment violation."

Monday, September 12, 2016

Ninth Circuit Affirms Arbitration Award

The Ninth Circuit clarified the limited role courts play in reviewing labor arbitration awards. (Southwest Regional Council of Carpenters v. Drywall Dynamics, Inc. (9th Cir., May 19, 2016, No. 14-55250)2016 WL 2909241.) The court held the district court exceeded its narrow authority to determine whether an arbitrator’s award was based on the parties’ contract and whether it violated an “explicit, well-defined, and dominant public policy.”
Drywall Dynamics (“Drywall”), the employer, entered into a labor agreement with the Union, the Southwest Regional Council of Carpenters. Under the agreement, Drywall assigned its authority to bargain to a contractors’ association (“Association”). Years later, Drywall attempted to terminate the agreement, only to discover the Union and the Association had executed a Memorandum of Understanding (“MOU”) extending the term of the agreement. An arbitrator held Drywall was bound by the MOU. The district court, however, vacated the arbitration award, holding the arbitrator’s interpretation of the parties’ agreement was not “plausible” and “contrary to public policy.”
The Ninth Circuit reversed, emphasizing that an arbitration award must be upheld as long as the arbitrator even arguably construed or applied the contract. According to the court, the appropriate and singular question to ask when determining whether to enforce an arbitration award is: “Did the arbitrator look at and construe the contract, or did he not?” The district court should not have considered whether the arbitrator’s interpretation was “plausible.” Moreover, a court can only vacate an arbitration award if it runs contrary to explicit, well-defined, and dominate public policy.” The Ninth Circuit determined there were two “competing interests” – the employer’s interest to withdraw from a multiemployer unit and the interest in stable multiemployer units. Because there were competing interests, neither could be “dominant” policy.

This decision reaffirms the extremely deferential standard by which a court will review an arbitration award. 

Thursday, September 8, 2016

Mastagni Holstedt, APC Congratulates Firm Attorneys for Excellence

Northern California Super Lawyers and Rising Stars Announced

 Image may contain: 9 people , people smiling , suit

Individually Mastagni Holstedt, APC attorneys have achieved notoriety for their skill and achievement with selection or election to preeminent organizations. Super Lawyers is a rating service of lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. Mastagni Hosltedt, APC honorees are privileged to have been nominated and selected as 2016 Super Lawyers and Rising Stars. This year's Super Lawyers are David P. Mastagni, John R. Holstedt, David E. Mastagni, Ken Bacon. Rising Stars are Phillip R.A. Mastagni, Kathleen Mastagni Storm, Jeffrey R.A. Edwards, and Isaac S. Stevens.



For over a century, lawyers have relied on the Martindale-Hubbell Law Directory for authoritative information on the worldwide legal profession. Martindale's Peer Review Ratings play an integral role in this service to the legal community. Peer Review Ratings attest to a lawyer's legal ability and professional ethics, and reflect the confidential opinions of members of the Bar and Judiciary.  Mastagni Holstedt, APC is an AV Rated Law Firm.

Tuesday, September 6, 2016

Governor Reviews Bills Favorable to Public Employees

Governor Jerry Brown has two bills on his desk that, if signed into law, will be favorable to public employees. The first bill amends the California Fair Pay Act to include race and ethnicity. The second bill mandates public employers allow employee associations to participate in employee orientations.

AB 1676: California Fair Pay Act Amendment

The California Fair Pay Act prohibits employers from paying an employee at wage rates less than the rates paid to employees of the opposite sex for similar work. Employers in violation of this law can be charged with a misdemeanor. AB 1676 amends the California Fair Pay Act to include race and ethnicity. In addition, this bill prohibits employers from using an employee's prior salary, by itself, to justify any pay disparity.

This bill has been passed by both houses and is under Governor Brown's review.

AB 2835:  "Union Recruiting" Bill

AB 2835 provides that public employers must provide new employees with an orientation within four months of hiring. If the employees are represented by an employee association, the association must be permitted to make a 30-minute presentation in the first half of the orientation. The association must be given at least 10-days notice of the orientation, and the association must be provided new employee's name, telephone number, and home address within 30 days of hire. PERB is granted authority to enforce these requirements.

This bill originated while Friedrichs v. California Teachers Association was being decided. Friedrichs threatened employee association's access to agency fees in the public sector. This bill was introduced to allow employee associations an opportunity to make a presentation to new employees to share with them the benefits of joining the association. If signed into law, this bill will help strengthen membership in public employee associations.

Wednesday, August 31, 2016

Mastagni Holstedt, APC Attorneys are Recognized in Sacramento Magazine's Top Lawyers List


Congratulations to the Firm's Attorneys Selected for the 2016 Honor 

Mastagni Holstedt, APC continues to be a top-ranked firm throughout the Sacramento region. The firm continues to flourish and has expanded its prominence state-wide, representing clients throughout California in a wide range of civil law matters. Our attorneys have earned a reputation for professionalism, sharp legal acumen and the dedicated pursuit of justice. Whether at the bargaining table, in the courtroom or before a host of state and federal agencies, boards and commissions, our team of legal professionals has the knowledge, experience and skill to help across a range of practice areas. 

Mastagni Holstedt, APC Firm Attorneys Represented Several Practice Areas in This Year's List: 

Labor & Employment- David E. Mastagni, Isaac S. Stevens, Kathleen Mastagni Storm, Jeffrey R.A. Edwards, Judith A. Odbert; Civil Litigation & Personal Injury- David P. Mastagni, Phillip R.A. Mastagni, and Daniel Osier; Workers' Compensation- John R. Holstedt, Craig E. Johnsen, Stuart Woo, and Cameron S. Huey; Professional Liability- Kenneth E. Bacon.

Tuesday, August 30, 2016

Ninth Circuit Denies En Banc Review of Flores v. City of San Gabriel

In an order issued August 23, 2016, the Ninth Circuit Court of Appeals issued an order denying the City of San Gabriel's request to reconsider en banc its decision in Flores v. City of San Gabriel.  Although the City has publicly stated its intention to seek review in the United States Supreme Court, this order will likely result in Flores remaining the controlling authority in the Ninth Circuit. Supreme Court review is rarely granted and the Court is currently split 4-4.

Assuming the Supreme Court does not grant review, in the Ninth Circuit the FLSA requires employers to include cash payments made in lieu of health benefits into the overtime, i.e. regular rate, of pay.  Additionally, the Court held that contributions provided to employees for the purchase of health care that were not paid out as cash must be included in the regular rate under certain circumstances.  A benefits plan can only pay out an incidental amount as cash and retain the ability to exclude the payments into an employee's benefit plan from being included the overtime rate of pay.  In Flores, the court required non-cash benefit plan contributions that amounted to between 53% and 58% of the total amount the City paid on behalf of its employees pursuant to its Flexible Benefits Plan, to be included in the overtime rate.


Thursday, August 25, 2016

NLRB Improves Backpay Formula for Unlawfully Terminated Workers

In a recent 3-1 decision, the National Labor Relations Board ("NLRB") modified its backpay formula to make unlawfully terminated workers whole. In King Soopers, the NLRB found that its previous formula was inadequate to fully compensate workers who were unlawfully terminated. Specifically, the Board found search-for-work expenses and interim work expenses should be treated as a separate component of the backpay award, rather than an offset against interim wages.

When an employee is terminated for union activities, he or she is required to find and maintain interim employment to mitigate damages while the unfair labor practice case is decided. The pay the discriminatee receives from interim employment is deducted from the backpay award. However, the search for interim employment, and sometimes the interim employment itself, often causes the discriminatee to endure additional financial hardship. This is especially true if the discriminatee is forced to relocate, commute longer distances, or pay for additional training for the interim employment.

In the past, the NLRB treated search-for-work expenses and interim employment expenses as offsets to interim earnings. This prevented discriminatees who were unable to find interim employment to receive any compensation for search-for-work expenses. Similarly, discriminatees whose interim job wages were less than their total expenses were not compensated for the amount of expenses that exceeded their interim wages.

The Board now treats search-for-work expenses and interim work expenses as a separate component of the backpay award. The purpose of make-whole relief is to restore, as nearly as possible, that which the discriminatee would have earned if he or she had not been unlawfully terminated, and to deter future unfair labor practices. The Board found that this new formula better serves both purposes. As a result, discriminatees who prevail on their unfair labor practices will be fully compensated for the financial hardships caused by their unlawful terminations.

The Public Employment Relations Board currently treats search-for-work expenses and interim employment expenses as offsets to interim earnings. But PERB will likely follow suit and treat search-for-work expenses and interim job expenses as a separate component of the backpay award to ensure discriminatees are fully compensated.