California Labor and Employment Law Review

From California Labor and Employment Law Review, Vol. 27, No. 6, November 2013

Carol Koenig

Carol Koenig is a non-equity partner at Wylie, McBride, Platten & Renner. Her primary area of practice is labor law, representing both private and public sector unions and their members throughout the state in all aspects of labor law and relations. Ms. Koenig is the author of the Fair Labor Standards Act chapter in the Section's treatise, California Public Sector Employment Law. She spends much of her limited spare time raising funds for non-profit organizations by participating in endurance events such as triathlons, bike rides and running events.

Message From the Chair

By Carol Koenig

It's natural for someone stepping into the role of Chair of an organization to be a little nervous about that first meeting when it is your turn to "be in charge"--especially when the group in front of you is composed of leaders in your field of practice. For me, it was not the first meeting I was nervous about, but the dreaded first Message from the Chair.

A few months before it was due, the prospect of the first Message would drift through my mind. Should I try to be humorous? Serious? Somewhere in between? Does it really matter? Does anyone even read the Message? Do I have anything to say? Yes, I know that those of you who know me are thinking: "Carol always has something to say." But, despite that popular view, I really was at a loss as to what my first topic should be. So I decided to read through the first Messages of my colleagues in whose footsteps I now have the privilege of following.

Some past chairs, such as Tim Yeung and Patti Perez, started out by explaining how they became employment lawyers. Tim seems to have known almost from the moment he was born that employment law would be his destiny. Patti, on the other hand, revealed that she sort of "fell" into her legal career. My venture into law was neither a life-long goal nor an accidental event. It was purposeful--although much later in life than either Tim's or Patti's--and certainly not interesting enough to justify a whole column.

I thought about modeling my immediate predecessor, Suzy Ambrose, and write about the purpose and function of our Section and the role of your hard-working executive committee. That would give me an opportunity to make a quick reference to the impending Section dues increase and explain how the Section's excellent educational and outreach programs justify the fee increase.

Or I could be more like former Chair Wil Harris and give Law Review readers a heads-up about our upcoming educational programs. For example, the Section will hold its third annual New Employment Lawyers Conference on January 17th at the State Bar office in San Francisco and on January 24th at Loyola Law School in Los Angeles. These day-long programs introduce new lawyers (and veteran lawyers new to employment law) to the basics of employment law, including hints on starting a practice, selecting good cases and avoiding weak ones, spotting difficult clients before you take on their case, and rules of the road in areas such as discovery, depositions, motion work, and settlement.

Employment lawyers who believe they can ignore the National Labor Relations Board if they do not practice in the union setting may want to check out the January 30 webinar on The NLRB's Application to the Non-Union Workplace. They may be surprised to find that they can be hit with an NLRB unfair practice charge even if their employees are not unionized, have never tried to organize, and do not want to organize.

The popularity of Facebook, YouTube, and other social media sites has given rise to significant changes in an employer's ability to exert control over how much public criticism it will allow from employees. The Board has found in several instances that employers in non-union settings who interfered with that social media activity committed an unfair practice in violation of the National Labor Relations Act. The January 30 seminar will give employment lawyers an update on this evolving area of law.

Or, I could mention our bold new move this spring where, for the first time, we are combining the Annual Public Sector Conference (usually held in the spring) with the Section's Annual Meeting (usually held in the fall.). Scheduled at the beautiful Claremont Resort and Spa in the Berkeley Hills, the dual program will feature topics of specific interest to the public sector practitioner, topics tailored for those whose focus is the private sector, and some cross-over topics for all practitioners.

But in the end, I decided to do something slightly different than my predecessors and end this rambling Message with a brief book review of My Beloved World, a memoir authored by U.S. Supreme Court Justice Sonia Sotomayor.

When I first heard that Justice Sotomayor had authored a book, I was anxious to read it. I had hoped it might give me an insight into this intriguing Latina who has so many admirers. Mostly, I wanted to get an insight into her judicial philosophy so I might have a hint as to how she might rule on some of the thorny issues facing the court--especially those dealing with employment and social justice.

Well, I had barely scrolled through the first page of the book and disappointment hit me in the face. She states right up front that she is not going to talk about judicial philosophy in her book. I almost put the book down then and there-- scolding myself for not at least skimming through a book review or two before purchasing the book for, if I had done so, I would have known the book was not what I thought it was going to be. But, for some reason I read a few more pages, then a few more, and then a few chapters and then more chapters and then I was so far into it, I figured I might as well finish it.

I would not say that the book (or her story) was compelling because when I find a book compelling, I am truly compelled to read it. I want to do nothing else but keep reading until I am finished--which is why I usually only do my "leisure" reading on vacation. Forget going to the gym and working out or working in the yard or going to bed at a decent time. Just read, read, and read late into the night until the last word has been read. That did not happen here. I read it a little bit at time, but somewhat steadily over a couple of weeks. But obviously I did not find the book at all boring, because when I find a book is boring, I set it down and usually never pick it up again except to dust around it or put it in a book donation box. That didn't happen either.

Reading My Beloved World was an interesting experience, kind of like when you order a dish you have never tried before in a restaurant. You take the first bite and you are not quite certain if you like it or not, so you take another bite and you are still not certain. And you keep taking bites, trying to decide if you like it--and then you look down at the plate and see it is empty. And you figure you must have liked it because you ate it all (and it wasn't just because you paid for it). That's how this book was. It was not at all what I expected from a judge--especially from a U.S. Supreme Court justice.

It is personal--one could even say intimate. She takes us through her childhood, explaining how she learned to inject herself with insulin at the age of seven because she knew that was the only way she would survive. She extolls the benefits of growing up in a large extended family--even if it was in the projects. She openly writes about the difficulties of growing up with an alcoholic father and a mother who temporarily "checked out" of life after Sotomayor's father died. She takes the reader through the pain of losing a childhood friend to AIDS, and through the self doubt and fear she felt about her ability to live up to the expectations of those who believed in her and helped her along the way. When she talks about her successes, she openly admits that her own hard work was not the only part of the equation that led to her success. She does not back away from, or show any embarrassment about, benefiting from an affirmative action program that helped her get into Yale and she consistently credits part of her success to the mentors she has encountered along the way.

After reading the book, I realized that, as candid as she was in My Beloved World, Justice Sotomayor missed the truth when she warns you that you will not learn about her judicial philosophy in the book.

In telling us about her life experiences--those that were intimate as well as those that were very public--she tells us much about who she is. And, if there is one thing that you learn from My Beloved World, it is that Justice Sotomayor will be, as she apparently always has been, true to who she is, true to her roots and true to her fundamental beliefs, including those about the justice system. Although she does not spend much ink telling us what those fundamental beliefs are, when she does, she gets straight to the heart of the matter.

Justice Sotomayor tells us much about her view of justice when she writes: "I have never accepted the argument that principle is compromised by judging each situation on its own merits, with due appreciation of the idiosyncrasy of human motivation and fallibility." Or, when she says: "Concern for individuals, the imperative of treating them with dignity and respect for their ideas and needs, regardless of one's own views--these too are surely principles and as worthy as any of being deemed inviolable."

But anyone trying to understand her judicial philosophy also must pay close attention to her fundamental belief that the very existence of prosecutors and defense attorneys "depends on a shared acceptance of the law's judgment as properly superseding the passion of either side for a desired outcome." And those who argue before her should heed her warning that "the good of neither the accused nor society is served without the recognition that the integrity of the system must be set above the expedient purposes of either side."

It will be interesting to see how these philosophies play out in our high court.

Back to Volume 27, Number 6 / Labor and Employment Law Section Members Only Area.