Message from the Chair

• Jurisdiction: United States,Federal
• Author: By Thomas A. Lenz
• Publication year: 2018
• Citation: Vol. 32 No. 2

Message From the Chair

By Thomas A. Lenz

Thomas Lenz is a partner in the Atkinson, Andelson, Loya, Ruud & Romo law firm (Cerritos and Pasadena offices). He advises and represents employers on labor and employment law. He attended Marquette University (B.A.) and Louisiana State University Law Center (J.D.). He began his career with National Labor Relations Board Region 21 (Los Angeles). He teaches at the USC Gould School of Law. Serving the Section since 2012, he has participated in conferences and presentations as well as programming and appearances on the Your Legal Rights radio show (KALW-FM 91.7 San Francisco and www.kalw.org) on topics of workplace law.

Recently, I thought back on a case I tried early in my career, while I was at the National Labor Relations Board. I was assigned the case from the time a charge was filed by an individual against his employer. I investigated the case, interviewing and taking statements from numerous Spanish-speaking witnesses. I contacted the employer to explain the allegations. The employer did not seek advice of counsel during the investigation. My inquiry into the issues was unencumbered by objections or, for that matter, any of the procedures of civil discovery process, since this was a federal administrative proceeding.

The largely undisputed facts were these. A group of nearly 20 janitors worked in office buildings in Orange County. They were paid at various rates, some of which were task-based rather than hourly. Some of the employees received pay that was less than the minimum wage. (At the NLRB, we had no jurisdiction to enforce minimum wage laws. Still, this spoke to me about how employees might be treated in their workplace.)

The crew was cleaning buildings one evening. They talked about their pay. They discussed that they were not paid enough. Someone said they should talk to the company owners about it. The group talked about it and decided that would be the night. The janitors put their mops and brooms in their trucks and drove to a house several miles away. It was the home office of the owners.

Once at the door of the home office, the janitors stood outside and one of them knocked on the door. The owners, two sisters, came to the door. They were enraged that the employees were not cleaning buildings during their assigned shift. One of the janitors said, in Spanish, "We would like more pay." In response, one of the owners responded, in broken Spanish, "Give me your keys, and if you don't leave, we will call the police."

The janitors did as they were told. They relinquished their keys. They left immediately to avoid further confrontation with the owners or law enforcement.

The janitors told me, as investigator, they felt they were fired. The employer took the position that the janitors had abandoned their posts and quit their jobs. We discussed this internally at the NLRB. A decision was made to...