The Appellate Court of Illinois upheld

The Appellate Court of Illinois upheld the Illinois Hotel Room Attendant Rest Break Law over constitutional challenges. Illinois Hotel & Lodging Association v. Ludwig, — N.E.2d –, 2007 WL 1462185 (Ill.App. 2007). The Rest Break Law is a first of its kind statute that requires hotels to provide room attendants with two 15-minute rest breaks and a 30-minute meal period. The law allows room attendants to bring civil actions for treble damages if the hotel fails to do so. The Illinois Hotel and Lodging Association sued to block enforcement, claiming that the law violated the Illinois and United States Constitutions and was preempted by the National Labor Relations Act. The Appellate Court rejected both of these arguments. The court recognized that the quota system under which hotel room attendants work forces them to skip rest breaks and has contributed to increases in injury rates in recent years. The court held that the Illinois Legislature had a rational basis for targeting the law exclusively to Cook County, since Cook County has more room attendants than the rest of Illinois combined and since Cook County hotels are financially stronger than those in other regions of the state.

Davis, Cowell & Bowe represented UNITE HERE Local 1, which intervened in the case.

The Nevada Supreme Court upheld

The Nevada Supreme Court upheld a preliminary injunction against the state Labor Commissioner removing job classes from his published wage determination. The Court held such an administrative decision had to be preceded by formal APA rulemaking. The Court refused to distinguish its earlier ruling in 2005 to similar effect in a slightly-different procedural context (the Court held that the availability in the instant case of a wage determination hearing not available in the prior case made no difference, as this remedy was inadequate because it allowed the Commissioner to unilaterally implement his decision first and then hear objections later, unlike under the APA).

The U.S. Court of Appeals

The U.S. Court of Appeals for the District of Columbia issued its decision in the landmark San Manuel v. NLRB case. The panel of three judges ruled unanimously that it was proper for the National Labor Relations Board to assert jurisdiction over Indian casinos. UNITE HERE, the charging party, has been represented by Davis, Cowell & Bowe in all phases of the case.

The court rejected the Tribe’s argument that the doctrine of Indian sovereignty prevented the exercise of NLRB jurisdiction. It saw sovereignty as a function of the relative interest of the tribe and of the federal (or state) government. In this case, it found the tribal interest in sovereignty was relatively weak and the federal interests were strong. The court relied primarily upon the facts that the union put before the Board: the casino caters to a mostly non-Indian clientele and employs mostly non-Indian workers. It is a large business that is like non-Indian casinos in all material respects. The court stated that it recognized that there were some governmental attributes to the establishment of the casino, because the negotiation of the compact with the State of California and the adoption of the Tribal Labor Relations Ordinance were governmental acts, but concluded that nevertheless, “operation of a casino is not a traditional attribute of self-government” and that “impairment of tribal sovereignty is negligible in this context, as the Tribe’s activity was primarily commercial and its enactment of labor legislation and its execution of a gaming compact were ancillary to that commercial activity.”

The court also found “no indication that Congress intended to limit the scope of the NLRA when it enacted IGRA [Indian Gaming Regulatory Act].” There is nothing explicit in IGRA about labor relations. “This is not a case in which Congress enacted a comprehensive scheme governing labor relations at Indian casinos, and that the Board is out to expand its jurisdiction into that field.”

Ninth Circuit Affirms Class Action Certification in Gender Discrimination Suit Against Wal-Mart

The Ninth Circuit Court of Appeals upheld the class action status of a gender discrimination suit, Dukes v. Wal-Mart, alleging that Wal-Mart pays female employees less than men and promotes women at a lower rate than it does men. With a class made up of nearly 2 million women, this is the largest gender discrimination suit in history.

The Ninth Circuit upheld the District Court’s decision, finding that the plaintiffs “present significant proof of a corporate policy of discrimination and support Plaintiffs’ contention that female employees nationwide were subjected to a common pattern and practice of discrimination.”

More information is available at

In Magana v. Woodfin Suite Hotels

In Magana v. Woodfin Suite Hotels, Alameda Superior Court Case No. RG06291309, hotel workers won their 2nd restraining order preserving their jobs against being fired for Social Security no-matchs. These workers had complained in August 2006 to their employer and the City of Emeryville about the hotel not complying with the City’s new living wage ordinance, but then workers were told in September that they would be let go due to the lack of match between the social security numbers they provided at time of hire and numbers on file with SSA (even though the employer had repeatedly been told in prior years about these no-matches and not taken any prior action to require workers to fix their numbers). The Court relied in part on the City’s enactment recently of a supplemental ordinance sharply limiting employers’ ability to discharge workers while their administrative complaints are pending before the City. The current court order precluding these discharges is good until April 20th.

The United States District Court

The United States District Court for the Northern District of California ruled that the case against Costco for sex discrimination would go forward as a class action. The class includes all women employed by Costco in the United States (including Puerto Rico) at any time on or after January 3, 2002 who have been denied promotion to Assistant General Manager or General Manager positions or have been denied assignments to Senior Staff Manager positions (Merchandise, Receiving, Administration or Front End Managers). In certifying the class, Judge Marilyn H. Patel noted, “[i]n evaluating all of the evidence presented, the court finds that plaintiffs have presented strong evidence of a common culture at Costco which disadvantages women.”

The order is available here. Learn more about the class action case against Costco here.

DCB is pleased to welcome Sarah Varela

DCB is pleased to welcome Sarah Varela to the San Francisco office. DCB also welcomes Keira McNett back as an associate in the Washington office. Keira was formerly a law clerk for the Washington office.

DCB Wins Judgment of $304,000 in Sex Harassment Retaliation Case

DCB successfully represented a plaintiff in a sexual harassment discrimination and retaliation case in a jury trial before the District of Columbia Superior Court. A judgment was issued recently awarding the plaintiff $304,000 in damages, plus attorneys’ fees and costs totaling approximately $180,000.

Nevadans for Nevada

In Nevadans for Nevada et al. v. Beers et al., 142 P.3d 339 (Nev. 2006), the Nevada Supreme Court held unanimously that the Tax and Spending Control for Nevada (TASC) initiative petition should be struck from the November 2006 ballot. The Court ruled that the TASC proponents’ failure to follow the constitutional requirement that an exact copy of the petition be filed with the Secretary of State prior to circulation invalidated the initiative.

TASC would have severely curtailed public services in Nevada by limiting state and local government spending to an inflexible growth formula. The right-wing Americans for Limited Government has targeted similar “taxpayer bill of rights” initiative measures at seven other states this year.

DCB Clients Help Defeat Challenge to Hotel Living Wage Ordinance

In 2005, UNITE HERE Local 2850 with the help of community group East Bay Alliance for a Sustainable Economy (EBASE) persuaded voters in the City of Emeryville California to approve an initiative ordinance setting a higher local minimum wage just for hotel workers. It also requires workers be retained when hotels are sold, provides premium pay if housekeepers have to clean more than 5000 square feet per day (adjusted downwards for checkout rooms), and provides for access to the hotel by organizations helping employees for the purpose of assisting in ordinance enforcement. Two hotels, led by the Woodfin, sued in federal court. Woodfin Suites v. City of Emeryville, USDC N.D. Cal. Case No. 4:06-01254. Federal judge Saundra Braun Armstrong issued a 30-page opinion rejecting their motion for preliminary injunction on August 22, 2006. She found either the hotels did not have standing to make various claims (for example, to complain about the ordinance violating employees’ privacy in requiring payroll records be provided to the City for enforcement purposes), or found their arguments lacked merit (the Hotels claimed the ordinance was preempted by federal labor law and invalid under equal protection principles). EBASE with the union’s help participated as an amicus (“friend of the court”) submitting briefs and supporting declarations.