DMcCracken, Stemerman & Holsberry, LLP

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News Archive

June 06, 2007

DCB welcomes summer clerk Joey Hipolito to the San Francisco office. Joey completed his first year at the University of California, Berkeley School of Law (Boalt Hall). Prior to law school, Joey worked for many years as a researcher for the United Food and Commercial Workers in Washington.

In addition, DCB welcomes Jill Cartwright as the Washington office law clerk. She is a 3L at American University, Washington College of Law. Prior to law school Jill worked for Emily’s List and the Democratic Congressional Campaign Committee, and also worked with UNITE HERE Local 11 in Los Angeles organizing hotel workers. She recently published an article, Why Fight Fought: A Missed ERISA Opportunity in the Ninth Circuit, 37 Golden Gate U. L. Rev. 567 (2007).

May 18, 2007

The Appellate Court of Illinois upheld the Illinois Hotel Room Attendant Rest Break Law over constitutional challenges. Illinois Hotel & Lodging Association v. Ludwig, -- N.E.2d --, 2007 WL 1462185 (Ill.App. 2007). The Rest Break Law is a first of its kind statute that requires hotels to provide room attendants with two 15-minute rest breaks and a 30-minute meal period. The law allows room attendants to bring civil actions for treble damages if the hotel fails to do so. The Illinois Hotel and Lodging Association sued to block enforcement, claiming that the law violated the Illinois and United States Constitutions and was preempted by the National Labor Relations Act. The Appellate Court rejected both of these arguments. The court recognized that the quota system under which hotel room attendants work forces them to skip rest breaks and has contributed to increases in injury rates in recent years. The court held that the Illinois Legislature had a rational basis for targeting the law exclusively to Cook County, since Cook County has more room attendants than the rest of Illinois combined and since Cook County hotels are financially stronger than those in other regions of the state.

Davis, Cowell & Bowe represented UNITE HERE Local 1, which intervened in the case.

March 08, 2007

The Nevada Supreme Court upheld a preliminary injunction against the state Labor Commissioner removing job classes from his published wage determination. The Court held such an administrative decision had to be preceded by formal APA rulemaking. The Court refused to distinguish its earlier ruling in 2005 to similar effect in a slightly-different procedural context (the Court held that the availability in the instant case of a wage determination hearing not available in the prior case made no difference, as this remedy was inadequate because it allowed the Commissioner to unilaterally implement his decision first and then hear objections later, unlike under the APA).

February 09, 2007

The U.S. Court of Appeals for the District of Columbia issued its decision in the landmark San Manuel v. NLRB case. The panel of three judges ruled unanimously that it was proper for the National Labor Relations Board to assert jurisdiction over Indian casinos. UNITE HERE, the charging party, has been represented by Davis, Cowell & Bowe in all phases of the case.

The court rejected the Tribe’s argument that the doctrine of Indian sovereignty prevented the exercise of NLRB jurisdiction. It saw sovereignty as a function of the relative interest of the tribe and of the federal (or state) government. In this case, it found the tribal interest in sovereignty was relatively weak and the federal interests were strong. The court relied primarily upon the facts that the union put before the Board: the casino caters to a mostly non-Indian clientele and employs mostly non-Indian workers. It is a large business that is like non-Indian casinos in all material respects. The court stated that it recognized that there were some governmental attributes to the establishment of the casino, because the negotiation of the compact with the State of California and the adoption of the Tribal Labor Relations Ordinance were governmental acts, but concluded that nevertheless, “operation of a casino is not a traditional attribute of self-government” and that “impairment of tribal sovereignty is negligible in this context, as the Tribe’s activity was primarily commercial and its enactment of labor legislation and its execution of a gaming compact were ancillary to that commercial activity.”

The court also found “no indication that Congress intended to limit the scope of the NLRA when it enacted IGRA [Indian Gaming Regulatory Act].” There is nothing explicit in IGRA about labor relations. “This is not a case in which Congress enacted a comprehensive scheme governing labor relations at Indian casinos, and that the Board is out to expand its jurisdiction into that field.”

February 06, 2007

Ninth Circuit Affirms Class Action Certification in Gender Discrimination Suit Against Wal-Mart

The Ninth Circuit Court of Appeals upheld the class action status of a gender discrimination suit, Dukes v. Wal-Mart, alleging that Wal-Mart pays female employees less than men and promotes women at a lower rate than it does men. With a class made up of nearly 2 million women, this is the largest gender discrimination suit in history.

The Ninth Circuit upheld the District Court’s decision, finding that the plaintiffs “present significant proof of a corporate policy of discrimination and support Plaintiffs’ contention that female employees nationwide were subjected to a common pattern and practice of discrimination.”

More information is available at

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We are pleased to announce that Davis, Cowell & Bowe, LLP has changed its name to McCracken, Stemerman & Holsberry, LLP. There is no change in personnel, and we continue working from the same offices in San Francisco and Las Vegas.