California Employment Law : Employment Lawyer & Attorney : Fox Rothschild Law Firm : San Francisco, Oakland, Los Angeles, San Diego

No need to post that NLRB poster by April 30th.  Here's an update from Chip Zuver:

As most of you are already aware, the NLRB issued a rule requiring employers covered by the National Labor Relations Act (the Act) to post a notice advising employees of their rights under the Act, irrespective whether the employer was union or non-union. The notice posting rule was scheduled to go into effect on April 30, 2012.

The National Association of Manufacturers and the South Carolina Chamber of Commerce filed suit claiming the rule exceeded the NLRB's authority. In March 2012, a federal district judge in D.C. ruled that the NLRB had the authority to require employers to post a notice advising employees of their organizational rights. The National Association of Manufacturers then sought to enjoin the implementation of the rule pending its appeal of the district court judge's decision. The judge rejected the request. However, last Friday, a federal district judge in South Carolina concluded that the NLRB exceeded its authority in requiring employers to post the notice. This created a split in the federal courts. Then this morning, the U.S. Court of Appeals for the D.C. stepped in and enjoined enforcement of the notice pending the D.C. Circuit's resolution of the matter on the merits.  That means employers do not need to post the notice at this time.

Chances are that the court will not reach a decision on this matter before December 2012. Therefore, employers have at least a temporary reprieve before the notice must be posted. 

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As we said before, we love federal court.  And yesterday the United States Supreme Court made it easier for us to get there.  In Hertz Corporation v. Friend the Court recognized a bright line rule regarding a corporation's principal place of business:

[W]e conclude that the phrase "principal place of business" refers to the place where the corporation's high level officers direct, control, and coordinate the corporation's activities. Lower federal courts have often metaphorically called that place the corporation's "nerve center." See, e.g., Wisconsin Knife Works v. National Metal Crafters, 781 F. 2d 1280, 1282 (CA7 1986); Scot Typewriter Co. v. Underwood Corp., 170 F. Supp. 862, 865 (SDNY 1959) (Weinfeld, J.). We believe that the "nerve center" will typically be found at a corporation's headquarters.

Before this decision, much time was spent comparing and contrasting how much business a corporate defendant had in one state versus another.  Now, absent a showing of jurisdictional manipulation, the inquiry is simple:

[T]he courts should instead take as the "nerve center" the place of actual direction, control, and coordination.

 

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We love federal court.  Hence, we love removing actions to federal court. But the road to removal is paved with opportunities for remand.  One primary issue is how to demonstrate that the amount in controversy requirement has been met.  Typically, the plaintiff's complaint will not pray for any specific amount of money.  So, defense counsel must rely on other evidence for its valuation analysis.

But in trying to show that the plaintiff’s case is theoretically worth at least $75,000, attorneys sometimes overlook a crucial bit of evidence: the pre-litigation settlement demand. In assessing the amount in controversy, a plaintiff’s settlement demand is relevant. Cohn v. Petsmart, Inc., 281 F.3d 837, 840 (9th Cir. 2002). Indeed, in the Ninth Circuit, such evidence may by itself be sufficient to establish the jurisdictional minimum. Id. Moreover, settlement demands (including those otherwise inadmissible in California court) are admissible:

[Federal] Rule [of Evidence] 408 disallows use of settlement letters to prove "liability for or invalidity of the claim or its amount."  We agree with the district court that Rule 408 is inapplicable because this evidence was not offered to establish the amount of [defendant’s] liability, but merely to indicate [plaintiff’s] assessment of the value of the [claim]. 

Cohn, 281 F.3d at 840; see also also Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1033 (N.D. Cal. 2002) (admitting evidence of a settlement demand that was otherwise inadmissible under California Evidence Code § 1152). 

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