Cal Biz Lit

Wrongful Termination Case Based on Labor Code Section 232.5 is Preempted by NLRA

California has two statutes, Labor Code sections 232 and 232.5, that protect the rights of employees to disclose information about their compensation or working conditions.  The first, Labor Code section 232, was enacted in 1984, provides:

No employer may do any of the following:

(a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages.

(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages.

(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.

This statute was broadly interpreted by the Court of Appeal in Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 136.  There, the court upheld a claim for wrongful termination against public policy after an employee was allegedly terminated for telling co-employees (during an exchange of information between co-employees) that she did not receive a bonus.  The court held that (a) section 232 set forth the public policy of the state protecting employees from adverse employment action for disclosing information about “wages,” and (b) that the statute was intended to protect employees who wanted to discuss “some aspect of their compensation, for example, a possible increase in pay, perceived disparities in pay, or the awarding of bonuses.”

Only months after the court’s Grant Burton decision, the legislature enacted Labor Code section 232.5:

No employer may do any of the following:

(a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer's working conditions.

(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer's working conditions.

(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer's working conditions.

(d) This section is not intended to permit an employee to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege without the consent of his or her employer.

In the following six years, no California court has issued a published decision involving section 232.5. . . . . until now.

More after the jump.

Reid v. Google: Evidentiary Objections in Summary Judgment Motions

In practice areas where practitioners make heavy use of motions for summary judgment, there's been an ongoing controversy over how the courts treat evidentiary objections.  Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410 held that a trial court need not explicitly rule on objections on summary judgment.  Instead, it was presumed that the court had relied only on competent, admissible evidence.  Demps v. San Francisco Housing Authority (2007) ___ Cal.App.4th ___ overruled Biljac and held that any objection not ruled on was implicitly overruled. 

Trial court practice has been all over the map.  Some judges simply state they are deciding only on the basis of competent and admissible evidence.  Some rule on objections as part of their orders.  Some request a "check box" form of objections that allows the court to easily check boxes for "sustained" and "overruled." 

Appellate courts have had similarly diverse views:  some held undecided objections were "waived."  Some held that as long as the party making the objection made some effort to get a ruling, they were not waived.  Others have held that rulings are unnecessary and the objections are preserved as implicitly overruled.

The Cal Supremes have now taken up the issue in Reid v. Google, Inc.(2007) 155 Cal.App.4th 1342 (now unciteable).  This was a very pro-plaintiff employment law decision, wiped off the books as a result of the Court granting review.  The statement of issues on review indicates the issues will be the objections and the "stray remark" doctrine -- the extent to which a "stray remark" can be used in opposition to summary judgment to show unlawful discriminatory bias.

Off Topic Musical Post:  Francis Clay died in San Francisco on January 23.  For those who read this blog for the law and not the music, he was the drummer who drove the great Muddy Waters band in the first half of the 1960's.  He was a jazz drummer who couldn't make any money in jazz (c'est la change . . . ), so he learned to play the blues in Muddy's great band.  Here are Muddy Waters, James Cotton on harp and Francis Clay on drums at the Newport Jazz Festival, 1960.