Karen Livadas v. Lloyd Aubry, in His Official Capacity as Labor Commissioner for the State of California

ORDER

The opinion filed September 11, 1991, is amended as follows:

[Editor’s Note: Opinion amended for publication.]

Judge Kozinski, as dissenter, neither joins in nor opposes the amendment to the majority opinion contained in this order.

With the above amendment, the majority of the panel has voted to deny the petition for rehearing. Judge Rymer has voted to reject the suggestion for rehearing en banc and Judge Alarcon so recommends. Judge Kozinski has voted to grant the petition for rehearing and to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to hear the matter en banc. Fed. R.App.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

OPINION

Karen Livadas brought this action under 42 U.S.C. § 1983 against Lloyd Aubry, the Labor Commissioner of California (Commissioner). She argues that the Commissioner deprived her of her right under the National Labor Relations Act (NLRA) to bargain collectively because he denied her enforcement of certain sections of the California Labor Code based on his determination…

dissenting.

According to my colleagues, the question presented to us is whether Karen Livadas was entitled to a correct interpretation of state law. See Majority at 558-59. The answer to this question is clearly no. The answer is much different, however, if one asks the right question: May Karen Liva-das be denied state-law benefits just be *561 cause she is covered by a collective bargaining agreement? It is our responsibility to answer the question fairly presented to us by the litigants, not one we might prefer they had asked. Because the majority comes up with the right answer to the wrong question, I must dissent.

I

A. What happened here is fairly simple: Karen Livadas lost her job at Safeway and the employer did not send her her final paycheck until three days later. This is not a big deal, but under California law an employee is entitled to her paycheck on the date of departure; the law provides a penalty for any delay. Cal. Labor Code §§ 201 & 203. To ensure that impecunious employees are not denied their statutory rights, the state Labor Commission — the defendant here — is charged with enforcing such claims on behalf of employees who have valid claims and who are…

987 F.2d 552 142 L.R.R.M. (BNA) 2808 , 125 Lab.Cas. P 10,629 , 2 Wage & Hour Cas.2d (BNA) 106 Karen LIVADAS, Plaintiff-Appellee, v. Lloyd AUBRY, in his official capacity as Labor Commissioner for the State of California, Defendant-Appellant. No. 90-16650. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1991. Decided Sept. 11, 1991. As Amended on Denial of Rehearing and Rehearing En Banc March 8, 1993. H. Thomas Cadell, Jr., Chief Counsel, Div. of Labor Standards Enforcement, Dept. of Industrial Relations, San Francisco, CA, for defendant-appellant. Michael T. Anderson, Davis, Cowell & Bowe, San Francisco, CA, for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before: ALARCON, KOZINSKI and RYMER, Circuit Judges. ORDER 1 The opinion filed September 11, 1991, is amended as follows: 2 Judge Kozinski, as dissenter, neither joins in nor opposes the amendment to the majority opinion contained in this order. 3 With the above amendment, the majority of the panel has voted to deny the petition for rehearing. Judge Rymer has voted to reject the suggestion for rehearing en banc and Judge Alarcon so…