Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Miles Locker doesn’t have a reputation as a radical. The 45-year-old career attorney with the California Division of Labor Standards Enforcement (DLSE) has been described by both sides of the employment bar as professional, dedicated and — most importantly in their eyes — fair. He was appointed chief counsel at the department by Gov. Pete Wilson after serving 13 years in various positions in state government. “He’s very bright, very professional and open-minded,” said Michael Loeb, who chairs the labor and employment group at McCutchen, Doyle, Brown & Enersen in San Francisco. So the fact that Locker has walked into the middle of a political firestorm is a big surprise. Even bigger is the fact that he paid for it with his job and a 10 percent cut in pay. Locker is in trouble with his bosses for writing a May 30 letter that unleashed a chorus of protest from business interests and employer-side lawyers. The letter said that employees would lose exempt status if forced to take vacation days — potentially costing corporations substantial sums in overtime pay. Though the opinion caused controversy, the act of writing the letter is a typical task for an attorney in Locker’s position. The letter was a response to an inquiry from a private attorney who was trying to clarify state law for a client. And Locker did what most counsel for state agencies do: He sent back an interpretation of the law. The response to his interpretation was anything but typical. Locker last week was demoted to a staff attorney position, an order sources in the DLSE say came directly from the governor’s office. His opinion letter has also been rescinded. The move, however, doesn’t necessarily sit well with lawyers on either side of the employment bar or with Locker’s fellow attorneys at the DLSE. Employees in the division have signed a petition and sent it to the governor’s office demanding Locker be reinstated. That petition reads: “This letter is intended to convey the utter shock and dismay that has swept through the staff of the Division of Labor Standards Enforcement at the sudden news that a decision has been made to remove Miles E. Locker from his position as chief counsel for the division. Given the high esteem in which Mr. Locker is held by all who have had the privilege to work with him, and the enormous contribution he has made to the work of the division, the removal action appears incomprehensible.” Even Loeb, who works on behalf of employers, sent a letter of support to Locker. “I think the [opinion] letter’s wrong,” he says, “But if the letter is cause for demotion it’s unfortunate.” The fear, lawyers say, is that Locker’s demotion will have a chilling effect on state lawyers who attempt to offer an honest interpretation of statutes at the request of private interests. “There’s a roadmap to the governor’s office to keep people from carrying out their statutorily mandated duties,” said one state attorney who spoke on condition of anonymity. That fear is even more pronounced by lawyers who represent employees who could have potentially benefited from Locker’s opinion. San Francisco employment lawyer Cliff Palefsky went as far as to call the Locker situation “a political assassination of a very respected public servant.” “This sends a horrible message,” he said. Davis spokeswoman Hillary McLean denies that Davis had anything to do with Locker’s demotion and called the allegations “absolutely false.” She says the Locker situation was an internal matter within the Department of Industrial Relations, of which the DLSE is a part. She also says Locker’s demotion was not based on a one-time incident, but would not give any specifics. McLean added she had heard about a petition from Labor Standards employees, but hadn’t seen it. Dean Friar, a spokesman for Industrial Relations, said he couldn’t comment on personnel issues, and Stephen Smith, the department director, did not return calls seeking comment. Locker, too, refused to comment for the record for this story. The situation, attorneys say, does little to clarify the problems over the state’s overtime law, which changed this year after Davis signed a law reinstating daily overtime in California. “It puts us smack dab back in a void,” Loeb says. The problem with Locker’s letter, say lawyers, is that when California’s economy was going gangbusters last year, no one paid much attention to the part of the law which deals with what’s called the monthly salary basis test. In essence, the test differs from a federal standard that sets overtime exemption rules on a weekly basis. Under the new law, California’s test is monthly. In his letter, Locker interprets the law to mean that when a company places employees on involuntary leave for any time during a month, then those employees lose their exempt status for the rest of the month and must be paid overtime during the period. Since the letter was issued, companies like Sun Microsystems have ditched plans to place workers on leave for the July 4 week, and companies that planned temporary shutdowns because of the state’s energy crisis now worry about wage-and-hour class actions if Locker turns out to be correct. The Industrial Welfare Commission had planned to weigh in on the matter at a meeting Friday, but lacked a quorum. A spokesman said the department is studying the issue and hopes to have a clarification to the law by the time the commission meets again in August. Locker’s opinion came about as a response to a query by Sheppard, Mullin, Richter & Hampton partner Richard Simmons in Los Angeles, who asked the attorney to clarify the law. But when Simmons received Locker’s e-mail reply it caused hysteria among employment lawyers who soon flooded the state agency with calls and e-mails. Simmons was out of the country and couldn’t comment for this story, but in the past he has called the opinion both “anti-business” and “anti-worker.” In an effort to further clarify his position Locker planned a second letter, but was instead ordered by the governor’s office not to send any more letters, said a source at Labor Standards. That only made the situation worse, the sources said, because people weren’t getting any answers about the issue. But not everyone believes that staff attorneys should be empowered to give such broad interpretations of the law. Employment partner Linda Allderdice of the Los Angeles office of Carroll, Burdick & McDonough says Locker was essentially self-legislating with his letter. “It came out of the blue; it was very irregular,” Allderdice says. Those who support Locker, though, say he’s being punished merely for doing his job — interpreting a law the Legislature passed and Davis signed off on. Locker supporters say if business interests are unhappy with the law they should go to the Legislature and have it changed. “It’s an opinion letter, it’s not a binding interpretation,” Palefsky says. “He didn’t write the law. He’s not the one who put the monthly test into the law.”

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.