• Death of the Precedent Decisions?

    Eleven months ago I wrote about the Rise of the Precedent Decisions. In that article I discussed the Labor Commissioner’s newly adopted practice of issuing Precedent Decisions that were supposedly binding upon all other Labor Commissioner cases. According to the California Court of Appeals, the Precedent Decisions issues by the Labor Commissioner are not binding and are promulgated in violation of the Administrative Procedures Act.

    The Administrative Procedures Act is the process through which authorized agents of the state promulgate new regulations. For example, the Industrial Welfare Commission is authorized to promulgate regulations regarding the overtime requirements and under that authority issued various Industrial Welfare Commission Orders that are enacted in our California Code of Regulations. Since the IWC is authorized to promulgate the regulations and because they followed the APA rules regarding adopting such regulations, the regulations are the law and are binding upon employers.

    Some years ago, the Labor Commissioner was criticized for attempting to bypass the APA by claiming its Enforcement Manual was the law. The California Supreme Court disagreed. Since the Labor Commissioner did not follow the APA, the Enforcement Manual is not an authorized regulation and is not binding.

    When the legislature passed a law providing a penalty in the form of one hour’s wage for any employer that fails to follow the IWC Orders with respect to meal and rest breaks, the Labor Commissioner tried to pass a regulation defining the penalty as a wage (See Meal and Rest Breaks are Penalties). After the California Assembly passed a resolution declaring the Labor Commissioner was not authorized to pass such a regulation, the Labor Commissioner decided to issue a Precedent Decision on the issue; claiming that the Precedent Decision was binding on all future rest or meal break claims. The Labor Commissioner subsequently issued a few more Precedent Decision.

    On July 10th, the Third Appellate District in Corrales v. Bradstreet, C051407, concluded that the APA does not allow the Labor Commissioner to issue binding Precedent Decisions. While the Precedent Decisions may be persuasive, they are not binding.

    What does this mean? I expect the Labor Commissioner will issue fewer Precedent Decisions because they are not binding authority. This does not mean employers can ignore the Precedent Decisions. While employers may not be required to follow the Precedent Decisions, smart employers will familiarize themselves with the Labor Commissioner’s position because hearing officers will likely follow the Precedent Decisions in similar cases. Additionally, Courts may still use Precedent Decisions as persuasive authority especially if the decisions do not contradict the Labor Commissioner’s previously espoused positions.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Federal Minimum Wage Increase

    Effective July 24, 2007, the federal minimum wage for covered non-exempt employees will be $5.85 per hour. The minimum wage increases to $6.55 per hour effective July 24, 2008; and $7.25 per hour effective July 24, 2009.

    California employers must comply with California’s minimum wage (currently $7.50 and set to increase to $8.00 in January 2008) and federal minimum wage.

    A revised Federal minimum wage poster, reflecting the recently enacted minimum wage increases, is now available free of charge on the Department of Labor’s Web site. Every employer of employees subject to the Fair Labor Standard Act’s minimum wage provisions must post, and keep posted, a notice explaining the Act in a conspicuous place in all of their establishments so as to permit employees to readily read it.

    The federal youth minimum wage remains the same. Under federal law, employees under 20 years of age may be paid $4.25 per hour during their first 90 consecutive calendar days of employment with an employer. California has similar exceptions to the minimum wage laws for minors and learners.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Declaration of Independence

    When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

    We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. –Such has been the patient sufferance of these colonies; and such is now the necessity which constrains them to alter their former systems of government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

    He has refused his assent to laws, the most wholesome and necessary for the public good.

    He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

    He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

    He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records, for the sole purpose of fatiguing them into compliance with his measures.

    He has dissolved representative houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

    He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise; the state remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within.

    He has endeavored to prevent the population of these states; for that purpose obstructing the laws for naturalization of foreigners; refusing to pass others to encourage their migration hither, and raising the conditions of new appropriations of lands.

    He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers.

    He has made judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries.

    He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.

    He has kept among us, in times of peace, standing armies without the consent of our legislature.

    He has affected to render the military independent of and superior to civil power.

    He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his assent to their acts of pretended legislation:

    For quartering large bodies of armed troops among us:

    For protecting them, by mock trial, from punishment for any murders which they should commit on the inhabitants of these states:

    For cutting off our trade with all parts of the world:

    For imposing taxes on us without our consent:

    For depriving us in many cases, of the benefits of trial by jury:

    For transporting us beyond seas to be tried for pretended offenses:

    For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule in these colonies:

    For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments:

    For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

    He has abdicated government here, by declaring us out of his protection and waging war against us.

    He has plundered our seas, ravaged our coasts, burned our towns, and destroyed the lives of our people.

    He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation and tyranny, already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

    He has constrained our fellow citizens taken captive on the high seas to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.

    He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian savages, whose known rule of warfare, is undistinguished destruction of all ages, sexes and conditions.

    In every stage of these oppressions we have petitioned for redress in the most humble terms: our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

    Nor have we been wanting in attention to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends.

    We, therefore, the representatives of the United States of America, in General Congress, assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes and our sacred honor.

    New Hampshire: Josiah Bartlett, William Whipple, Matthew Thornton

    Massachusetts: John Hancock, Samual Adams, John Adams, Robert Treat Paine, Elbridge Gerry

    Rhode Island: Stephen Hopkins, William Ellery

    Connecticut: Roger Sherman, Samuel Huntington, William Williams, Oliver Wolcott

    New York: William Floyd, Philip Livingston, Francis Lewis, Lewis Morris

    New Jersey: Richard Stockton, John Witherspoon, Francis Hopkinson, John Hart, Abraham Clark

    Pennsylvania: Robert Morris, Benjamin Rush, Benjamin Franklin, John Morton, George Clymer, James Smith, George Taylor, James Wilson, George Ross

    Delaware: Caesar Rodney, George Read, Thomas McKean

    Maryland: Samuel Chase, William Paca, Thomas Stone, Charles Carroll of Carrollton

    Virginia: George Wythe, Richard Henry Lee, Thomas Jefferson, Benjamin Harrison, Thomas Nelson, Jr., Francis Lightfoot Lee, Carter Braxton

    North Carolina: William Hooper, Joseph Hewes, John Penn

    South Carolina: Edward Rutledge, Thomas Heyward, Jr., Thomas Lynch, Jr., Arthur Middleton

    Georgia: Button Gwinnett, Lyman Hall, George Walton

    Source: The Pennsylvania Packet, July 8, 1776