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Gov. Arnold Schwarzenegger’s second executive order since taking office is causing a big commotion within the employment bar. Plaintiffs attorneys are up in arms about the sudden vanishing of important legal resources from the state’s Web site while the new administration reviews various administrative regulations. “It seems a bit Orwellian to me,” said Steven Zieff, a plaintiffs attorney at Rudy, Exelrod & Zieff. “The idea that you would make it difficult for people to get information that is illuminating doesn’t seem to be the way to advance the interests of the labor code.” David Borgen, a plaintiffs attorney at Oakland’s Goldstein, Demchak, Baller, Borgen & Dardarian, said he was outraged by what he termed “skullduggery and secrecy.” The move comes as a result of executive order S-2-03, which calls for a 180-day review of all government agency guidelines, manuals and bulletins that have not been adopted through the state’s formal rule-making process. The review could result in changes to the Division of Labor Standards Enforcement’s interpretations of existing law, which have been the basis of numerous class actions seeking compensation for things like meal breaks and travel time. But while no one questions the new administration’s right to review and change the legal interpretations, many plaintiffs attorneys are perturbed by the decision to hinder public access to information that has yet to actually be rescinded. “They’re all still operative,” said Matthew Righetti. “If you want to handicap employees from knowing their rights, the first thing you do is you make it harder for them to know what their rights are.” Visitors to the DLSE Web site who click on opinion letters or the Enforcement Policies and Interpretations manual are greeted with a message that reads “No content currently available. Please check back at a later time.” Rick Rice, a spokesman for the California Labor and Workforce Development Agency, said the material was removed Tuesday as part of the review mandated in the executive order and to prevent any confusion among the public in the meantime. “There may be information in there that constitutes an underground regulation and should not be there,” Rice said. “We’re going to make sure that only correct regulatory information is available, not opinions that may be misconstrued to represent regulation.” The decision to take the material offline was a group decision reached by Labor and Workforce Development Agency Undersecretary Victoria Bradshaw, DLSE Commissioner Arthur Lujan and DLSE legal staff, said Rice. Bradshaw, the labor commissioner under former Gov. Pete Wilson, was appointed Tuesday to head up the state’s top labor agency. The debate over what constitutes a so-called underground regulation dates back to a 1996 decision by the California Supreme Court. In Tidewater Marine Western v. Bradshaw, 14 Cal.4th 557 (1996), the justices found that the interpretive policies in the DLSE’s enforcement manual were not valid regulations since they were not passed in accordance with the state’s Administrative Procedure Act. But the court said there was nothing preventing the DLSE from publishing a historical compendium of its previous enforcement actions. M. Kirby Wilcox, a partner at Paul, Hastings, Janofsky & Walker, said reviewing the manual was a good opportunity to examine whether it’s in compliance with the Tidewater decision. “It would be helpful to have that clarity, so I think it’s a useful exercise,” Wilcox said. As for the decision to take the material offline during the review, he said that the state faced a tough call. “Someone must have made the judgment that it’s better to take it down and take a look at it than to have employers feel like they’re supposed to be complying [with] something they don’t have to.” Michael Loeb, a partner at Bingham McCutchen, said the fact that the legal material is no longer available online will not have a great impact, since most attorneys have printouts of the information. But the fact that the opinion letters and the enforcement manual were removed signals that the administration has set its sights on California’s plaintiffs-friendly employment law environment. “The pendulum swung way too far, and what you have is going to be some kind of balance,” Loeb said. “What you’re really looking at,” he said, “is a concerted effort to carry out a campaign promise to improve California’s economy by making it a more employer-friendly place.”

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