California Labor Lab – Legal Trends and Tips

Phil Wilson, Michael Vandervort & David Wimmer.

Phil Wilson: [00:00:10]

Hey everyone! This week’s episode is with David Wimmer, labor and employment lawyer from out in Los Angeles. David and I have known each other for a long time. We talk about his humble beginnings in Pennsylvania out to the home of LA law, Los Angeles, where he practices law now. We talk about the importance of strengthening relationships, both as part of your law practice, but also in life. He offers some great practical tips for dealing with the massive and ever-changing environment of California labor and employment law. And at the end, we deal with our favorite legal dramas. So, enjoy this week’s episode with labor and employment attorney David Wimmer.

Michael VanDervort: [00:00:55]

We’re going to take a spin down the 405 to the 10 and drop in to visit with our friend and labor lawyer, David Schwimmer. David, welcome to The Left of Boom Show. How are you today?

David Wimmer: [00:01:06]

Good morning, good afternoon, wherever you are. It’s great to be here. I’m glad we all got the same memo about the mandatory black glasses. It’s nice to see. It’s good to see you all.

Michael VanDervort: [00:01:20]

It’s an industry trend [laughs], to wear black plastic framed glasses. It’s good to see you. Thanks for joining us.

Phil Wilson: [00:01:28]

Yeah. Great to see you, David.

Michael VanDervort: [00:01:29]

David, to start out, rather than reading your bio, give us a quick background, what you do, and where you’re at. Hopefully, they’ll realize you’re in LA. But outside of that talk to us about your practice and what you’re doing these days.

David Wimmer: [00:01:44]

Sure. So, I’m a shareholder with a law firm, Swerdlow Florence Sanchez Swerdlow and Wimmer. We are a small management side boutique law firm. Our offices are in Westwood, just next to the UCLA campus. Views of the Pacific from the window behind me. We’ve got eight attorneys, and we do nothing but management-side labor and employment. So, what we don’t do is workers’ compensation defense. There are some other firms in town that handle worker’s comp.

[00:02:21]

So, we don’t deal with worker’s comp defense, and we really don’t do a lot of ERISA work. I have better ways to put myself to sleep at night than doing ERISA work so I will leave that to some very highly qualified folks. But aside from that, Mike, we’re doing the advice and counseling, the day-in, day-out hand-holding for clients. We’re working on litigation defense. That might mean single-plaintiff sex harassment, discrimination, and wrongful termination cases to some of the largest class action wage and hour cases here in California.

[00:03:03]

And unfortunately, that’s what we’re seeing more and more of, is not the single plaintiff case. The leverage factor, the extortion factor exists on the wage and hour cases. That’s become a much more expansive part of our practice over the last five, ten years. And then we’ve got the traditional labor law work, which is how I have come to meet you guys. It’s the union organizing, union prevention work.

[00:03:38]

It’s the NLRB representation and its collective bargaining negotiations, grievances, arbitrations, and all that for our union-represented clients. And those are probably our three main categories of work. And then I’ve got this little niche that I’ve developed over the years from when I first got started, which is doing the defense of OSHA matters, when there have been serious accidents at work, or perhaps even fatal accidents.

[00:04:13]

Employers come to me to help quarterback that defense, whether it’s just dealing with Cal OSHA, whether in a more serious matter, it’s dealing with the Bureau of Investigation, their criminal investigatory arm, whether it’s helping companies write the policies, handle the training, draft the training. We deal with all that as well primarily from a Cal OSHA perspective for employers up and down the coast. So, that’s what we do.

Michael VanDervort: [00:04:46]

Very cool. And of course, you do it in California, which is perhaps one of the- well, not perhaps, it probably is the most complicated set of laws of the 50 that we have in the United States.

Phil Wilson: [00:04:58]

Yeah. When you say the biggest wage and hour cases in California, that’s like New York, right? If you can make it there, you can make it anywhere. You’ve got to be dealing with some of the biggest cases there are.

David Wimmer: [00:05:09]

New York, New York. Yeah, that’s exactly right. That’s exactly right. Oh, I’m sorry, I forgot the ground rules. No singing and dancing. I don’t [unintelligible 00:05:17] song.

Michael VanDervort: [00:05:17]

I don’t know if Frank ever had an LA song. Anyway, he had Chicago and he had New York, but I’m not sure he did LA.

David Wimmer: [00:05:23]

Oh, I love L.A., Randy Newman. [crosstalk 00:05:26] Lakers and Dodger games.

Michael VanDervort: [00:05:30]

So, David, one of the things we like to start out each guest with is just a little personal question about who in your life was a mentor, a leader, or a role model that helped make you who you are today. Is there a singular person that you would give a shout-out to?

David Wimmer: [00:05:53]

I’d say there are probably two. One would be my father. When he was practicing law, he was a small-town lawyer in Palmerton, Pennsylvania, the town in which I grew up and was reared. He was also a local bank president, school board solicitor. And growing up in Palmerton, seeing how he practiced, that work ethic, that small-town ethics, values, integrity, the importance of relationships, especially with opposing counsel and the court, and the notion, as he often said, “David Palmerton is a small town. You better keep your nose clean. You’ve only got one professional reputation. You better not blow it.”

[00:06:46]

That has been critical to me in terms of how I try to deal with clients, opposing counsel, and the courts. And then more directly, when I started off, I was with a firm called O’Melveny and Myers for almost ten years, and there was a partner there, a blessed memory, Scott Dunnam, a whip-smart photographic memory. And just when you thought you had done the job correctly and off went the letter. Well, you got the final letter as sent to the client back marked up with little red Dunham marks of the comma you missed, the period that was misplaced.

[00:07:34]

And it really made such an impression of the importance of the details, the precision, the proofreading. And it’s something that has stuck with me ever since is how to really focus on delivering to our clients the best possible work product of whatever variety that may be. And for our firm, it’s often just a phone call. We tend not to be the type of firm that when you call us with a question, we’re going to put together an 18-page memo and charge you for 100 hours when a half-hour phone call probably would have been just fine.

[00:08:20]

But that notion of how you respect your clients, give them the best possible advice, and do so in a way that is responsible and cost-effective, that all comes from the combination of all those, of my father, of Scott, and of other folks I’ve had the joy and honor of working with throughout the 30 some years that I’ve been doing this.

Phil Wilson: [00:08:45]

David, you mentioned your relationships and the importance of relationships. And around here, we talk about our superpowers strengthening relationships. But over the years I’ve known you, when you say that, it’s like, “Oh, yeah, of course, a key mentor,” like really emphasized that. You’re amazing at relationships. So, what are some of your go-to ways you build relationships and strengthen relationships? What tips do you have?

David Wimmer: [00:09:15]

In litigation, for instance, versus collective bargaining- collective bargaining, you’re a repeat player. I’ve got a deal, in all likelihood with the same union rep or the same union council in three years and in three years. So, you better have a good professional relationship where you’re not out to burn them. Even if theoretically you could, because they missed something, it’s not going to serve your client well in the long run to do that.

[00:09:51]

Are you someone of your word you’re not looking to for super sharp elbows, sharp tactics, but can you cut a deal and live with it and move on? Because you’re going to have to do it again. And unfortunately, that repeat buyer situation does not exist nearly as much in the litigation context in Los Angeles where we have so many attorneys, so many you have never heard of and will never come across again. And when you have that, unlike in Broken Arrow, Oklahoma, where you know all the attorneys, here you never see these folks again and you’re surprised when they are just obnoxious.

[00:10:43]

And then you have the distance and separation of email and Zoom where there’s anonymity to it all and it just can bring out the worst in your adversarial tendencies. And that doesn’t do you or your client any good? And then on the personal side of the relationships, we have this craziest idea that we should send holiday cards every year to our friends and colleagues and opposing counsel and judges with whom we’ve dealt that started off on a lark with our dogs and then became the dogs and the kids.

Phil Wilson: [00:11:26]

One of the highlights of my holiday season is getting that card. And of course, we compete, right? We also have great cards, and so it’s like, oh drat, he beat us again.

David Wimmer: [00:11:40]

Hardly. But that’s this ever-increasing pressure like what are we going to do this year? What are we going to do this year?

Phil Wilson: [00:11:47]

Yeah, it’s a holiday card arms race.

David Wimmer: [00:11:51]

But it’s interesting because folks remember that more than the bottle of wine you send, that personal touch, the photo of the kids. The number of times I’ve gone to a court or some administrative office and there is the secretary who’s got on the work [unintelligible 00:12:11], the years’ worth of the kids and the dogs that just make her smile- the phone call might get returned a little bit faster.

Phil Wilson: [00:12:24]

Yeah, they’re great. They are great.

David Wimmer: [00:12:26]

So, that’s how we do the relationship stuff.

Michael VanDervort: [00:12:29]

Very nice. I’ve got a long list of stuff, and we can’t do justice to all of it but I want to run down a bunch of stuff particular to California. But David, I’d like to do it with the idea in mind that a lot of folks do business in California who aren’t living there and aren’t employed there- their home office is someplace else. And I’m in a big Facebook group that has 35,000 HR people in it and we get questions all the time, “Hey, can anybody in California help me with this and help me with that?”

[00:13:02]

So, I want to not only explore, you know, the land of labor law opportunity that California is for you guys, but for the US in general. So, let’s start out and maybe you can comment at a high level about some of the significant things that are kind of- just set it up for us, and then we’ll drill down a little deeper, topic by topic. So, where do you want to start?

David Wimmer: [00:13:28]

Look, there are a host of things in this Paradise we call California that should be of interest to all employers. But if your home office, if your HR leadership team is not in California, here are a few things you might want to be thinking about. Wage and hour compliance would be at the top of my list. I’d put in there as well-paid sick leave, minimum wage, the pressures brought to bear by some of our unique minimum wage laws, both statewide, like fast food and health care, but also the ability of local municipalities and cities to go above the state minimum wage and above the state’s paid sick leave. That just creates this entire jigsaw puzzle of mess for minimum wage and paid sick leave.

[00:14:31]

When folks are hired out here. The notion of how we require background checks to be run at a state level and at local levels with local ban-the-box rules are important. Some of the fair scheduling, fair workweek ordinances that exist need to be considered. I think the state is overtly hostile, unlawfully so, but overtly hostile to arbitration agreements. So, how can you as an employer, best protect yourself and implement an arbitration agreement with class action waivers? That’s critical. Going back to the wage and hour litigation risk.

[00:15:20]

We’ve got PAGA, which is our state’s private attorney general sue them and screw them law that is just horrible. Even with the amendments that were recently made, it is still horrible. And you’ve got Cal OSHA lingering out there with its own unique burdens. Recently, this summer, they put in place workplace violence prevention plans for general industry. They had had that requirement for health care. Now they’ve expanded it to all employers of, I think, ten employees or more. And we’ve put in place indoor heat illness rules that require some planning and training for all employers as well. So, those are, I think, the major issues for employers.

Phil Wilson: [00:16:21]

I figured that the one you were going to say is at the top of the list for that hypothetical HR person who doesn’t live in California but has employees there would be relocating those employees out of California. Why does anyone do business there besides management-side labor lawyers?

David Wimmer: [00:16:40]

Look, there’s a lot of people out here. Millions upon millions. It’s a huge economy. Your company, even if you decided to move your headquarters to Texas or wherever else, you’re still going to have employees here. You’re still going to be making sales into the state. I don’t think it’s realistic to think that employers can simply extract themselves entirely from California.

[00:17:13]

The other thing I would add Mike and Phil, because your question was in the context of if you’re an employer outside the state, I would also taking a little bit larger view, ask the question, Well, what if you are engaging people in California not as the employer, but arguably as the contractor in what you think is an independent contractor 1099 relationship? I think that’s something that many hiring entities, companies need to consider. Are they misclassifying those contractors when perhaps they rightly should be considered employees under California state law? So, that’s something else I’d be thinking about.

Michael VanDervort: [00:18:04]

We’ll pivot to the list, starting with your top issue in just a second. But the other general question I see a lot on the same groups that I was referencing is somebody saying we need to hire an employee in California. So, this is again, that person sitting in Indiana or Illinois or whatever, and my boss wants to put somebody in place in California and invoke all those laws. Would you do that, David, if somebody called? They must have a reason for doing it- but having a single employee in California, is that a good practice or is it something you should avoid until it’s absolutely necessary because of the legal environment?

David Wimmer: [00:18:42]

I don’t think it’s a binary yes or no. The thing I’ve learned doing this for 20 years is when you let the lawyers start to make those operational decisions, you’re screwed. Instead, let’s talk about the pros and cons. How important is it to have that one, two, three, four employees in California? And what’s the consequence? And if those are employees that from an operations or profitability standpoint you need to have here, then let’s talk about how you do it properly.

[00:19:18]

But really, how does that discussion differ from, as we saw in COVID when employees started to fly all away from the home office, and suddenly you found yourself with all these employees speckled throughout the country, and now the employers are saying, “Wait a second, do I need to be registering as a business and have workers comp and paying payroll taxes and complying with the wage and hour laws of all these other states?” How does that really differ than Mike, what you just asked about? It’s the same in my view.

Phil Wilson: [00:19:56]

You’re right. So, my mentor-in-law, this is one of the most important things he ever taught me was don’t go in talking about the law. Ask the client what is it you’re trying to do. Start with that. What do you want to do? And you can ask them questions about why you want to do that. But start from there and then start working your way through okay, let’s talk about the consequences of that decision, or how you could do that decision in a way that is most likely to pass muster and most likely to keep you out of trouble. But I think that’s a great way to practice law. And it’s a great advice.

David Wimmer: [00:20:40]

And it’s also true, Phil, on the litigation side. I always have that question- what’s your real objective here- in that initial discussion with the client about the litigation. Because too often the damn attorneys want to just plow forward with litigation at 120 miles an hour when the client’s answer is- I just want to settle this thing and if I have to overpay today, I’m willing to do that because I avoid the inconvenience. For some clients, that’s important. but if you don’t ask the question, what’s your goal, what’s your objective, why do you want to do this- you’re never going to get there.

Phil Wilson: [00:21:23]

Yeah. And lawsuits cost way more than legal fees, right? There’s the emotional cost. There’s all the hours that you spend on your side trying to get stuff to the lawyer. There’s a lot that goes into it. Not everything should settle, but.

Michael VanDervort: [00:21:39]

So, let’s pivot back to the issues, David, and let’s go with the one at the top of your list, the wage and hour stuff. Cover that in a little more depth for us and why it’s more problematic. I know the fast-food industry has a unique status now and a wage board and some other things, but I think there’s more to it even than that.

David Wimmer: [00:21:57]

Oh, sure. So, put that fast food to the side. California Wallet follows the Fair Labor Standards Act, the FLSA, the federal law, has also put on top of that an entire range of wage and hour requirements that make compliance so much more burdensome. We’ve done things like create daily overtime, the possibility of double time in a day, in a week, whereas federal law just looks at overtime after 40 hours, time and a half. Overtime is much more challenging.

[00:22:43]

We have added on to that, requirements for paid rest periods and meal periods, during which employees are relieved of all duties- non-exempt employees we’re talking about. Non-exempt. We have created on the employer an obligation to track those meal periods, to pay penalties if they’re not provided, if they’re not timely provided. There are various timing rules- by when must the meal period or periods in a particular work day be taken. Can the employee leave your work site?

[00:23:27]

And all of those things come with the risk of attorney’s fees if you violate them. There are requirements for pay stubs. What data must be reported on pay stubs in California- if you’re an employer who just uses your own in-house payroll processing because in Nebraska we can do it this way, you’re likely to be violating California’s payroll and pay stub laws.

Phil Wilson: [00:24:02]

I’m sorry to interrupt, but- And then the problem from an employer standpoint, especially a small employer, if you are intentionally trying to not pay overtime to your employees or whatever, that’s one thing. They should throw the book at you and you pay all the fines. The problem is when you load all these different little requirements, an employer that is absolutely in good faith just trying to pay their employees, is scheduling people properly is paying overtime, but one little mistake turns into you have to prove the negative that you’ve never made that mistake ever with anybody else.

[00:24:47]

And if you don’t have the paper trail, that’s the lawsuit that becomes this massive potential expense where you really can’t disprove what’s being claimed because you’re not using somebody who has everything recorded in a thousand different ways to prove the case. And you’re kind of stuck where it’s like, “Well, we need to settle this and pay the legal fees or this is never going to end. And we’re at risk of a giant verdict.” It’s very troublesome for a smaller, unsophisticated employer.

David Wimmer: [00:25:23]

And even for larger employers that overlook this stuff, the absence. I’m dealing with a case now where the employer simply never kept track of meal periods. To hear them tell it, their folks got meal periods all the time, had more than enough time to do so. But without the records, now it shifts and becomes this rebuttable presumption in the employee’s, in the plaintiff’s favor. And that makes things quite challenging.

Phil Wilson: [00:25:57]

The plaintiff’s bar is like, we got you.

David Wimmer: [00:26:00]

Absolutely! That’s right. And if they got you, now they know they have the right to their attorney’s fees. So, how do you cut your losses to prevent that case from just being over-litigated, knowing that they’re going to get an attorney’s fees award at the end of the day? It’s a huge financial lever, incentive, extortion piece, however you want to look at it. The grant of attorney’s fees by the California legislature on these wage and hour claims and in our state discrimination harassment statutes, our retaliation statutes, it’s a game changer for employers and not in a good way.

Michael VanDervort: [00:26:50]

So, a lot of potential pitfalls, and a lot of risk for just basic day-to-day business transactions that are not necessarily intended to be harmful to anyone, which is really ironic. Let’s switch away from that, David, because we can’t go into depth on a lot of these. But let’s go to the Cal OSHA thing. And especially I was really fascinated by the 82-degree indoor heat requirement. I realize California is not Phoenix or whatever, but a little bit cooler there perhaps, than Arizona, Texas, and some other places.

[00:27:23]

Lots of warehouses, and lots of restaurants with heat inside. I’ve seen a lot of activist-type protests, especially from fast food around it’s too hot in the McDonald’s or whatever. Pick a pick a fast-food brand. So, what are they setting you guys up for and how hard is it going to be to comply with this new heat standard?

David Wimmer: [00:27:43]

I think it’s going to be a real challenge, a real challenge for employers. Look, I’m sitting here in this lovely office, air conditioning. It’s a temperate 68, in my office. I do like it a little cold. But I still have to have this indoor heat illness plan if there’s a chance, a reasonable chance that the indoor temperature is going to be above 82. Do I have to have such a plan? Do I have to consider that on the weekends they shut off the air, so is it possible the office is going to get to 82 until I order AC in the building? It’s crazy.

[00:28:28]

This all got started because anecdotally, I think outside of San Diego, a warehouse worker suffered heatstroke and was critically injured. And from that came this statewide ordinance, not just limited to warehousing but statewide to all employers. That, to me, seems like overkill. And it’s a very confusing statute with thresholds at 82 degrees and an even higher threshold up at 87 degrees for some high heat illness requirements. There are training requirements.

[00:29:16]

I think it’s going to catch a lot of employers, especially in the professional spaces off guard, that they may not have even considered the requirements. And those that are truly encompassed by this, those where there are those hot areas in their workplace, there’s a lot of work to be done, Mike, for those folks.

Michael VanDervort: [00:29:43]

Yeah. I worked in manufacturing environments where it was warm because of machinery or chemicals and that kind of thing. We supplied fans and we supplied coolers and Gatorade and all the stuff that we could try to do to keep people, but you can’t drop the temperature in some of those spaces. And so, I don’t know what you do.

David Wimmer: [00:30:03]

That’s right. There’s training that’s required. The standards talk about administrative controls, engineering controls, the provision of water and cool-down spaces, and maybe even the provision of special cooling clothing- the cooling vests and all this kind of stuff. There’s a lot that can occur to try to protect and enhance worker safety, but that all has to be in writing. Cal OSHA says you have to have a written indoor heat illness plan.

[00:30:38]

So, even those well-intentioned employers, as you were suggesting, that do the right thing, provide it instinctively because they care about their employees, Cal OSHA says that’s just not enough. You have to do more and have this full plan and training and forms and evaluations. It’s remarkable. If I could pivot from that, the other thing that’s occurring in California is the workplace violence prevention rules.

[00:31:12]

So, this summer, I think starting June or July 1st, it may have been June, all employers were required to put together if they had, I believe, ten or more employees, a workplace violence prevention plan. Sit down, meet with their employees, talk about the hazards that they face from a security standpoint, and then put together this very detailed plan with training and the like to try to address workplace violence.

[00:31:48]

So, here again, Cal OSHA issued a model workplace violence plan. It was ten, 12, 15 pages full of all these parameters to fill in, forms to have, meetings to conduct. Yes, it’s an important subject, but from a regulatory standpoint, do we really need this for every employer in a state of a certain size? Again, we’re painting with this broad regulatory brush here in California and it puts a huge burden on employers.

Phil Wilson: [00:32:31]

And I think going back to the whole what’s the upshot of these regulations- because you’ve already said, look, an employer that has a hot workspace generally is providing all kinds of… They provide breaks, they provide water, they provide electrolytes, they provide a place to go into the shade. In our workplace here, we’ve had the police come in and talk to us about workplace violence. Most employers want their employees to be safe and want to create a safe workspace. The issue with the regulations isn’t that we don’t care about heat-related safety or don’t care about workplace violence.

[00:33:21]

It’s like do you need to have a whole set of rules that, like if one box isn’t checked exactly right, becomes a lawsuit that I’m sure probably both of those laws also provide legal fees and you have like the private attorney general Act there in California. It’s like it creates this litigation nightmare that is really not commensurate to whatever sort of minor misstep is made around the issue, which is an issue that all employers care about.

David Wimmer: [00:33:51]

And it becomes a gotcha game for Cal OSHA. On Friday, I was in a series of Cal OSHA interviews, Phil, about a ladder accident. An employee fell from a ladder, injured himself, and he was working indoors. Yet the question from the OSHA investigator was, “Well, at any time did you step outdoors for work and did your employer provide you water and a shaded area ?” We’re not working outdoors. They were working indoors yet because at one point they would carry something out to a truck to be transported away, now this becomes outdoor heat illness, and tell us about your employer’s outdoor heat illness prevention plan.

[00:34:42]

It just strikes me as a gotcha game that really doesn’t help employers and certainly doesn’t help California’s perception as being anti-employer. That’s not good for us in the big picture in the long run.

Michael VanDervort: [00:34:59]

So, David, I have a question that wasn’t on the set of questions that we prepped for ahead of time. And speaking of gotcha moments, it’s a gotcha question. No, it’s not. It goes to the heart of what you do with your Cal OSHA practice, which is to help prevent serious injuries and you mentioned even deaths. And those types of things, not injuries, serious injuries are still relatively rare, deaths even more rare, but they’re some of the hardest things for an HR professional to deal with in the workplace.

[00:35:30]

And so, you’re shook up. It’s somebody you knew or whatever. I know it’s hard to do this quickly, but can you give us a few thoughts about what people should do right away beyond filling out the safety forms and stuff? Obviously, the paperwork is important, but what else should be done in situations like that?

David Wimmer: [00:35:47]

I’m going to say, Mike, just the opposite. Don’t fill out the forms. Don’t fill out the paperwork. If there’s a fatal accident, the last thing I want my client doing is filling out paperwork in the heat of the moment, under the stress of a colleague who has just passed. The admissions against interest that could be made, the factually erroneous statements that could be made because you haven’t yet done an investigation. Don’t go there. Get immediate emergency assistance. Secure the scene and call council. That’s what I would recommend.

[00:36:37]

Let your council run the investigation so you have an attorney-client privilege and attorney work product-governed investigation. If you find out that there were problems that will have occurred in the privileged context, there’s likely to be an OSHA investigation, especially if there’s a fatality- let your outside counsel quarterback that. Let’s be aware that there’s a risk, especially in a fatal accident of criminal prosecution, criminal investigation. So I don’t want that statement to be written. I want to be careful.

[00:37:25]

Who are the potential criminal subjects? Do we need to start thinking early on about the retention of criminal defense counsel to work with me to represent the company, whether just privately behind the scenes, whispering in my ear or visibly dealing with the investigation? Do we need to think about individual potential liability? Are there supervisors or managers who might face the potential for criminal charges? Those are the things I want to think about.

[00:38:05]

I want to think about how are we dealing with the family. Am I treating that family who’s just suffered this horrendous loss with as much decency, respect, kindness, and generosity as I can? I’m doing that because, for most employers, they really care about their employees and their families. What’s the public relations, the media aspect of all this? I had one case where for an entertainment industry client, they were building a set, and as soon as the fatal accident occurred, helicopters were above videotaping and you had reporters in fake Fire department turnout suits trying to get in to get photos.

[00:39:10]

How do you control the scene? How do you deal with the media? Are there going to be subrogation actions? All of this comes into play and it’s a jigsaw puzzle from an attorney’s perspective. It’s a great challenge and a lot of fun, but I don’t want you filling out the forms.

Michael VanDervort: [00:39:28]

Yeah, no, I totally get it. And that’s a great answer. Thanks, David.

Phil Wilson: [00:39:32]

And going back to the whole relationships part of it, that last part that you said, the family. And not just the family, but a bunch of people, including you if you’re the HR person. This is somebody that you know, somebody that you’ve worked with you know, somebody that you care about. And so, really focusing on that part first seems to me not just to be the humane thing to do, but it’s where you should be focused at the beginning of that. The rest of that stuff is going to take care of itself. Get your lawyer involved.

David Wimmer: [00:40:13]

That’ll play out over time. But it’s more Phil, you’re absolutely right- that relationship, that employee concern, it drives to the injured employees or the decedent’s family. It drives to the coworkers. Let’s not forget, there are folks who witnessed this horrible tragedy. There are the coworkers who have only heard of it. And in their mind, they are picturing things that no one should have to picture in their workplace.

[00:40:46]

What’s the EAP program? What’s the counseling that we need to make available- the time off? What do we need to do to help our employees deal with, and cope with this tragic event? Are we going to have a bus to take folks to the funeral? What can we do to help the entire situation? It’s a lot more than just the legal stuff. But it’s a great challenge and a great honor to work with companies when those events occur.

Michael VanDervort: [00:41:23]

Having been through a couple, it’s one of the hardest and most challenging HR- I don’t want to say opportunity- problems to deal with, I guess, or situations to deal with. We’re running tight on time. We have a bunch more we could talk about. Let’s real quick, David, if you would hit paid leaves and background checks, just highlight those for us, and then we’ll pivot to a couple of other short questions to wrap up.

David Wimmer: [00:41:48]

Background checks. California severely restricts when and how you can run criminal background history, when and how you can ask questions of the applicant about their criminal background history. The basic notion being don’t do that stuff until you’ve made a conditional offer of employment. The whole theory being you should be judging your applicants without regard to their conviction, their criminal history. And only once you find out is this person qualified, we’ve made the conditional offer, then run the criminal check and see if there’s something there that would disqualify them.

[00:42:39]

That’s the grossly overbroad background check for California. The other was paid sick leave that you mentioned, Mike. And we are a complete mess of a state when it comes to paid sick leave because, in addition to the state having its paid sick leave rules, you’ve got dozens of other cities, municipalities that are each trying to one-up the other for them. So, by way of example, California used to be statewide three days, meaning for an eight-hour day, 24 hours of paid sick leave. Three days, 24 hours.

[00:43:26]

As of the first of this year that expanded now to five days, meaning 40 hours. Or if folks work four-ten alternative workweek, that’s 50 hours of paid sick leave. Then the local requirements kick in. So, just by way of example, the city of Los Angeles has said six days of paid sick leave because you got to be better than the state to work in the city of LA. So, we’re now doing 48 hours or assuming it’s an eight-hour day, or you accrue it one hour for every 30 worked.

[00:44:12]

So, you’ve got complexities up the wazoo when you have employees who are working all around the state who fall into these various municipalities. How do you deal with that from an HR administration standpoint? Are you just going to say the rising tide floats all ships in whichever city Los Angeles, let’s say, has the most employee-favored, most generous paid sick leave, we’re going to do that across the board for everyone just because it’s easier. Those are tough discussions to have with clients.

Michael VanDervort: [00:44:52]

Yeah, for sure. Thanks for that. Thanks for the overview. You described Swerdlow, your firm as a boutique law firm, small, in one state, eight lawyers or whatever you said. Then you have monoliths like [unintelligible 00:45:09] or whatever other very large law firms. You guys have a unique partnership or affiliation. I don’t know exactly which word you use, but with an organization called Work Law, the Work Law Network, I believe. Explain what that is and how it might be helpful for people who have locations across the US.

David Wimmer: [00:45:29]

Sure. Work Law has been around 25, 30 years, and it’s a fantastic affiliation of labor and employment, management-side labor and employment boutiques throughout the US, Canada, Europe, Asia, and Australia. It allows all of our member firms and therefore their clients, to have local expertise when needed but not have to have the overhead expense, the administrative expense of setting up offices in all these different cities. So, I get to have the best of both worlds.

[00:46:17]

I’ve got a law firm with one office, efficient overhead. I don’t have to have hundreds of back-office support people like some of the big mega firms. And when a client says, “David, I have an issue in Seattle,” I get to just pick up the phone and call the guy who I’ve known for 20-some years in Seattle and say, “Ken, I’ve got a problem. Can you help?” And now I have local expertise immediately available. When we have clients that need handbooks, we might draw up the master handbook, but have the various states’ local counsel get involved to create the state law addendum that’s tailored to that state.

[00:47:04]

And it’s just a fantastic resource for us and our clients, whether it’s litigation advice, union avoidance work, whatever it may be. The member firms get together twice a year, so we know them, we trust them. We know the people. I’m not just referring you to our firm’s office in Kalamazoo because we happen to have an office there. I’m referring you, actually, to someone whom I know and I’ve known for years. I trust them, their firm, their work, and we can work together that way. It’s been a great, great relationship and a great affiliation for all the member firms here. And it gives us the opportunity to compete against some of those larger firms whose names shall not be mentioned.

Michael VanDervort: [00:47:52]

I mentioned one, sorry.

David Wimmer: [00:47:54]

Yeah, we’ll take that out in editing. We’ll fix that in post.

Michael VanDervort: [00:48:04]

Thanks for doing this. We’re right up against the clock. Thanks for being our guest. Thanks for sharing a wide-ranging dialogue about California. I think people will find it interesting. So, I’d like to give you an opportunity to sum up any final thoughts you might have. And also, I have a question. We always try to do a fun question to end the show. So, the question is what’s your all-time favorite legal drama? And it can be TV or movie. And Phil and I will throw ours out as well. And if we overlap, that’s the way it goes sometimes. But what are your final thoughts? And then share with us that legal drama pick.

David Wimmer: [00:48:42]

I got to think about the legal drama. The final thought would be arbitration agreement. I cannot emphasize enough, especially for employers doing business in California, how much I would recommend you consider putting in place, if you can, an arbitration agreement governed by the Federal Arbitration Act that has a class action waiver. It has been such a lifesaver for companies to take away the threat and the risk of class action litigation, while still allowing the individual who thinks they were aggrieved to still proceed with their claims, though in arbitration.

[00:49:34]

Cost of arbitration paid for by the company- true- but it’s a faster result and it’s without that class action extortion leverage that is so often brought to bear. So, for everyone, I would strongly encourage you to consider an arbitration agreement with class action waivers. Legal drama. I guess I got to go with LA Law back in the late 80s, early 90s. That’s when I was in law school. That’s when it was hot and sexy to come to LA and practice law. And I said, “Okay, let’s see what that might look like.” And here I am, neither hot nor sexy, but in LA nevertheless. So, I got to go with LA law.

Michael VanDervort: [00:50:29]

The Corbin Bernsen of your time or the anti Corbin Bernsen, perhaps? Mine is a movie. It’s A Few Good Men, Tom Cruise, and Jack Nicholson, and “You can’t handle the truth.” So I thought that one up. Phil?

Phil Wilson: [00:50:44]

I thought about that one. We talked a little bit earlier, but 12 Angry Men, I think, is an all-time classic, a great little legal drama. The other one I thought of was To Kill a Mockingbird. But those would be a couple I’d throw out. Well, David, thank you so much for joining us. As fully expected, an entertaining and alarming interview.

Michael VanDervort: [00:51:16]

It’ll play well in Peoria. Or was Parmenter, Pennsylvania? Did I get that right?

David Wimmer: [00:51:22]

Palmerton?

Michael VanDervort: [00:51:23]

Palmerton. Is that near Philly, Pittsburgh? Middle of nowhere.

David Wimmer: [00:51:28]

It is about a half-hour north of Allentown in Carbon County, Pennsylvania. Home of the New Jersey Zinc Company and the base of the Pocono Mountains. Beautiful place.

Michael VanDervort: [00:51:40]

Nice. I’m sure there are a few behind-the-scenes, little-known legal dramas that have played up there, played out up there in real life back in the olden days. But anyway, thanks, David. We really appreciate having you as a guest and we will talk to you down the road.

David Wimmer: [00:51:56]

You got it. Great to see you, gentlemen.

Phil Wilson: [00:51:58]

Yeah, see you soon.