Judd v. Weinstein
967 F.3d 952 (9th Cir. 2020)
California Civil Code §51.9 plainly encompasses the relationship between an influential, well-connected Hollywood producer and a young aspiring actress; this relationship consisted of an inherent power imbalance where the producer was uniquely situated to exercise coercion over the actress.
Frlekin v. Apple (2020)
8 Cal.5th 1038, 258 Cal.Rptr.3d 392, 457 P.3d 526
The time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees was compensable as hours worked within the meaning of California Industrial Welfare Commission Wage Order 7.
Blue Fountain Pools and Spas v. Superior Court (Arias) (2020)
53 Cal.App.5th 239, 267 Cal.Rptr.3d 491
The continuing violation doctrine provides a way for employees to escape the effects of the statute of limitations and reach back in time to base liability on earlier acts; it doesn’t provide employers a way to expand the scope of the statute of limitations to reach forward to bar claims based on acts within the statutory period. Even if the conduct of prior management made a worker’s further complaints of harassment futile, the arrival of new management created a new opportunity to seek help, and a worker can establish a continuing violation of the Fair Employment and Housing Act with respect to all the conduct that occurred after the change.
Ward v. United Airlines, Inc. (2020)
9 Cal.5th 732, 264 Cal.Rptr.3d 1, 466 P.3d 309
Whether workers entitled to California-compliant wage statements depends on whether their principal place of work is in California; for pilots, flight attendants, and other interstate transportation workers who do not perform a majority of their work in any one state, this test is satisfied when California serves as their base of work operations, regardless of their place of residence or whether a collective bargaining agreement governs their pay.
Oman v. Delta Airlines, Inc. (2020)
9 Cal.5th 732, 264 Cal.Rptr.3d 1, 466 P.3d 309
California’s wage statement laws apply only to flight attendants who have their base of work operations in California, and that the same is true of California laws governing the timing of wage payments.
Grande v. Eisenhower Medical Center (Flexcare) (June 30, 2022, No. S261247)
Cal.5th 2022 Cal. LEXIS 3642
The fact that two parties are joint and several obligors is not enough to put them in privity for purposes of issue or claim preclusion. Joint employers are not vicariously liable for each other’s Labor Code violations, but liable for their own conduct. Res judicata may bar a claim brought against an indemnitee where the same claim has already been pursued against the indemnitor, but that rule applies only when the indemnitor is, in the first action, acting in its capacity as indemnitor; if the indemnitor is sued for its own actions and is not sued as an indemnitor for the acts of another, the rationale favoring preclusion no longer holds.
Horne v. Ahern Rentals, Inc. (2020)
50 Cal.App.5th 192, 263 Cal.Rptr.3d 774
A defendant who had hired an independent contractor was entitled to summary judgment dismissing a lawsuit asserting that its negligence was responsible for the death of the contractor’s employee where the plaintiff failed to present evidence that the defendant affirmatively contributed to decedent’s injuries.
Trejo v. County of Los Angeles (2020)
50 Cal.App.5th 129, 263 Cal.Rptr.3d 713
The Los Angeles County Civil Service Rules do not authorize a county employer to extend an employee’s probationary period by re-assigning the employee into a modified position.
Jarboe v. Hanlees Auto Group (2020)
53 Cal.App.5th 539, 267 Cal.Rptr.3d 640
To enforce an arbitration agreement as a third-party beneficiary, a party must show the agreement was made expressly for its benefit. A corporate relationship alone is not sufficient to bind a nonsignatory to an arbitration agreement; the fact that a plaintiff’s claims against the nonsignatories are related to the claims he is arbitrating against a signatory does not compel application of equitable estoppel.
International Brotherhood of Teamsters Local 396 v. NASA Services, Inc.
957 F.3d 1038 (9th Cir. 2020)
Under California contract law, language stating that the terms of an agreement only become operative if certain conditions are met establishes a condition precedent to formation rather than a condition precedent to performance.
International Alliance of Theatrical Stage Employees, Local 15 v. National Labor Relations Board
957 F.3d 1006 (9th Cir. 2020)
An unwillingness to pay a union’s demands during negotiations is different than asserting a financial inability to pay; an employer asserting only an unwillingness to pay does not have a duty to produce information about its financial viability upon request from the union; whether an employer asserted an inability-to-pay claim not based on the use of magic words but on whether the essential core of the employer’s bargaining posture as a whole, as expressed to the union, was grounded in assertions amounting to a claim that it could not economically afford to pay for the union’s proposals; a retraction is effective if the employer makes it unmistakably clear to a union that it has abandoned its plea of poverty.
Tilkey v. Allstate Insurance Company (2020)
56 Cal.App.5th 521, 270 Cal.Rptr.3d 559
For purposes of Labor Code §432.7, a conviction does not require an entry of judgment of guilt—it merely requires the entry of a guilty plea; §432.7’s reference to diversion programs excludes out-of-state domestic violence programs. Compelled self-published defamation is a viable tort theory.
Anthony v. TRAX International Corporation
955 F.3d 1123 (9th Cir. 2020)
After-acquired evidence cannot establish a superseding, non-discriminatory justification for an employer’s challenged actions, but it can be used to show that an individual was not qualified for a position for purposes of the Americans with Disabilities Act.
Ducksworth v. Tri-Modal Distribution Services (2020)
47 Cal.App.5th 532, 261 Cal.Rptr.3d 108
A staffing company cannot be held liable for harassment with which it was entirely uninvolved. An abuse of discretion standard applies to evidentiary objections made in connection with a summary judgment motion.
Babb v. Wilkie (2020)
U.S. 140 S.Ct. 1168, 206 L.Ed.2d 432
The plain meaning of 29 U. S. C. §633a(a) demands that personnel actions be untainted by any consideration of age; to obtain reinstatement, damages, or other relief related to the end result of an employment decision, a showing that a personnel action would have been different if age had not been taken into account is necessary, but if age discrimination played a lesser part in the decision, other remedies may be appropriate.
Alexander v. Community Hospital of Long Beach (2020)
46 Cal.App.5th 238, 259 Cal.Rptr.3d 340
A group of plaintiffs failed to exhaust their administrative remedies against their former employer where they failed to name their employer in their Fair Employment and Housing Act complaint; there is no equitable exception to the rule that a FEHA defendant must have been named in a Department of Fair Employment and Housing complaint where the defendant received actual notice of the complaint and an opportunity to participate in the administrative process. Although a discrimination plaintiff must be permitted to prove the pretextual nature of the employer’s justification for terminating the plaintiff’s employment, evidence that the plaintiff was acquitted of charges raised by the employer is inadmissible for that purpose.
Scalia v. Employer Solutions Staffing Group, LLC
951 F.3d 1097 (9th Cir. 2020)
Where a company’s payroll processing agent admitted that she knew the recruited employees were not being paid overtime owed to them, the district court correctly found no dispute of material fact as to the company’s liability under the Fair Labor Standards Act; a company that recklessly disregarded the very possibility that it was violating the FLSA has acted willfully for purposes of extending the statute of limitations, and a company that has acted willfully cannot have acted in good faith. There is no indication Congress intended to create a right to contribution or indemnification for employers under the FLSA.
Rizo v. Yovino
950 F.3d 1217 (9th Cir. 2020)
Based on the text and purpose of the Equal Pay Act, the factor other than sex affirmative defense comprises only job-related factors; prior pay does not qualify as a job-related factor that can defeat a prima facie Equal Pay Act claim.
Public Employment Relations Board v. Bellflower Unified School District (2018)
29 Cal.App.5th 927, 241 Cal.Rptr.3d 22
When it is undisputed that the Public Employment Relations Board followed its procedures prior to issuing a decision, substantial evidence necessarily supports a trial court’s finding that the decision was issued pursuant to the board’s established procedures. The PERB’s general counsel’s post-decision actions cannot be raised as a defense to an enforcement action.
Gulf Offshore Logistics, LLC v. Superior Court (2020)
45 Cal.App.5th 285, 258 Cal.Rptr.3d 569
Non-California residents who worked on offshore oil platforms outside the state’s boundaries were subject to California employment law since California served as the base for their work operations and they performed the majority of their work within the boundaries of the state. Federal law does not preempt California law for non-residents working in the Santa Barbara Channel.
Foroudi v. Aerospace (2020)
57 Cal.App.5th 992, 271 Cal.Rptr.3d 803
The exhaustion of Equal Employment Opportunity Commission remedies does not satisfy the exhaustion requirements for state law claims. A plaintiff cannot exhaust his administrative remedies by adding substantive new allegations to an administrative complaint after the administrative case had been closed and the plaintiff had already filed a civil complaint
Hildebrandt v. Staples the Office Superstore (2020)
58 Cal.App.5th 128, 272 Cal.Rptr.3d 297
A plaintiff was entitled to claim the benefit of the class action tolling rule established by the U.S. Supreme Court in American Pipe & Construction Co. v. Utah due to the pendency of other class certification proceedings involving the same Labor Code and Unfair Competition Law violations.
Castillo v. Bank of America (2019)
C.D.Cal. Oct. 29, 2019, No. SA CV 17-0580-DOC (KESx) 2019 U.S.Dist.LEXIS 221870
The question of whether an employer’s policies for calculating overtime wages using total hours worked in the divisor were lawful under California law presents a purely legal question that is clearly capable of class wide resolution; the lead plaintiff submitted evidence showing typicality among her claims and the claims of other class members by demonstrating she was subject to the same allegedly unlawful policies; the plaintiff did not establish the predominance of a common issue where some putative class members were not exposed to the policies, some were paid adequately under the policies, and some were overpaid.
People v. Superior Court (Cal Cartage Transportation Express) (2020)
57 Cal.App.5th 619, 271 Cal.Rptr.3d 570
The Federal Aviation Administration Authorization Act does not preempt application of California’s ABC test, as codified by AB 2257, to determine whether a federally licensed interstate motor carrier has correctly classified its truck drivers as independent contractors.
Rojas-Cifuentes v. Superior Court (American Modular Systems) (2020)
58 Cal.App.5th 1051, 273 Cal.Rptr.3d 76
An employee’s notice to the Labor and Workforce Development Agency provided the minimum facts and theories necessary to support a Private Attorneys General Act claim where the employee alleged that his employer provided inaccurate wage statements to a particular class of employees; although the notice did not specify when the alleged Labor Code violations began, that is not reason enough to find the notice wholly inadequate; a PAGA claim can be regarded as multiple causes of action for purposes of summary adjudication.
Vasquez v. Jan-Pro Franchising International
923 F. 3d 575 (9th Cir. 2019)
The rule from Dynamex Operations West v. Superior Court for classifying employees and independent contractors applies retroactively to all cases not yet final on the day of its decision since the case addressed an issue of first impression.
Scalia v. Alaska
985 F.3d 742 (9th Cir. 2021)
Congress intended to adopt the definition of workweek contained in Fair Labor Standards Act regulation 29 C.F.R. §778.105 when it granted employees a total of 12 workweeks of leave under the Family and Medical Leave Act. When a rotational employee takes continuous leave, both his on and off weeks count as workweeks of leave under 29 U.S.C. §2612(a)(1). When an employee working a one week on, one week off schedule takes continuous leave, an employer may count both the on and off weeks against the employee’s FMLA leave entitlement.
Christian v. Umpqua Bank (2022)
(D.Or. Jan. 5, 2022, No. 3:16-cv-01938-IM) 2022 U.S.Dist.LEXIS 2293
To establish sex discrimination under a hostile work environment theory, a plaintiff must show she was subjected to sex-based harassment that was sufficiently severe or pervasive to alter the conditions of employment, and that her employer is liable for this hostile work environment.
Department of Human Resources v. International Union of Operating Engineers (2020)
58 Cal.App.5th 861, 273 Cal.Rptr.3d 127
A memorandum of understanding between the state and an employee organization may not contravene the merit principle of civil service employment; the merit principle is implicated not only in decisions to hire or promote state employees, but also in decisions to impose discipline. Where an arbitrator determined that an MOU requires a state department to expunge documents crucial to the fair and accurate evaluation of an employee’s performance, enforcement of the arbitrator’s decision would impermissibly undermine the merit principle.
Clarke v. AMN Services, LLC (2021)
987 F.3d 848 (9th Cir. 2021)
The weekly per diem benefits paid to a group of employees were improperly excluded from their regular rate of pay under the Fair Labor Standards Act where the benefits functioned as compensation for work rather than as reimbursement for expenses incurred; the function test requires a case-specific inquiry based on the particular formula used for determining the amount of the per diem, the monetary relationship between payment and hours, whether the payments are made regardless of whether any costs are actually incurred, and whether the employer requires any attestation that costs were incurred by the employee.
Wilmot v. Contra Costa County Employees’ Retirement Association (2021)
60 Cal.App.5th 631, 275 Cal.Rptr.3d 52
The forfeiture provision of the Public Employees’ Pension Reform Act applies to an employee who submitted his application for retirement to a county’s retirement authority before the act took effect, but did not have his application approved until after the effective date of the act; even if the employee was retired, and the forfeiture provision was applied to him, there would be no violation of the California Constitution’s provision against the undue impairment of the employee’s contract with his governmental employer, nor would that application constitute an ex post facto law.
Manderson-Saleh v. Regents of the University of California (2021)
60 Cal.App.5th 674, 274 Cal.Rptr.3d 838
A plaintiff challenging a quasi-judicial administrative determination resulting from an informal decision making process rather than a traditional hearing permitted to submit additional evidence to support her contention the decisionmaker abused its discretion in considering her claim. The substantial compliance doctrine applies to excuse strict compliance with requirements pertaining to beneficiary designations for public employee pensions. Where it was undisputed a public employee intended to name her daughter as her contingent beneficiary, and she made this intent known to her employer, in writing, before her death, and there were no facts showing a possibility of a contrary claim or the potential for double payment or that the employee would change her mind before her death, these facts and circumstances trigger the application of the substantial compliance doctrine.
Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019)
42 Cal.App.5th 918, 256 Cal.Rptr.3d 139
A union may bring a representative action on behalf of its members, even when the entire membership is not affected, as long as the number of affected employees is sufficiently numerous that, if it were a class action, the numerosity requirement would be met. Neither Labor Code §221 nor the wage garnishment law renders unlawful a provision in a memorandum of understanding authorizing the recoupment of overpayments to employees.
Hernandez v. State Personnel Board (2021)
60 Cal.App.5th 873, 275 Cal.Rptr.3d 154
A defendant was similarly situated to a spouse of his victim where the victim was the defendant’s girlfriend, and the defendant spent most nights with her over the course of five months, even though he maintained a separate permanent residence.
Brown v. Los Angeles Unified School District (2021)
60 Cal.App.5th 1092, 275 Cal.Rptr.3d 322
The Fair Employment and Housing Act’s protections against torts based on disability are independent of those under the Americans with Disabilities Act. A plaintiff adequately pled a claim for physical disability under the FEHA where she allegedly suffered from symptoms of electromagnetic hypersensitivity affecting one or more body systems that limited her ability to work. An employer’s alleged refusal to participate in the interactive process or provide reasonable accommodations do not constitute adverse employment actions in the context of a claim of discrimination; the commission of one specific prohibited employment practice does not, in and of itself, constitute commission of all other prohibited employment practices under the broad rubric of policies or practices affecting the terms, conditions or privileges of employment. Failure to accommodate and failure to engage in the interactive process are separate, independent claims involving different proof of facts. Where an employer agreed on a reasonable accommodation then changed its mind, this was not a failure to engage in the interactive process.
Bernstein v. Virgin America Inc. (2021)
3 F.4th 1127 (U.S. 9th Cir. 2021)
The California Labor Code can apply to an interstate transportation company’s relationship with its employees. An employer’s compensation scheme based on block time did not violate California law. California’s meal and rest break requirements are not preempted under the Airline Deregulation Act or Federal Aviation Act. Labor Code §226(a), §201 and §202 apply to workers who do not perform the majority of their work in any one state, but who are based for work purposes in California.
Donohue v. AMN Services, LLC (2021)
11 Cal.5th 58, 275 Cal.Rptr.3d 422, 481 P.3d 661
Employers cannot engage in the practice of rounding time punches in the meal period context; the meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective. Time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage.
Wilson v. The La Jolla Group (2021)
61 Cal.App.5th 897, 276 Cal.Rptr.3d 118
The primary question on class certification is whether the plaintiffs’ theory of recovery is amenable to class treatment, not whether the theory of recovery is correct. The existence of a common question does not compel class certification; class certification is properly denied when the class claims would require an individual showing of liability, not merely damages. Where the plaintiffs did not identify a common policy or practice requiring overtime or denying meal and rest breaks, which could be proved by common evidence, the trial court could properly deny class certification; since the employer had a uniform policy of not providing the putative class members with itemized wage statements because the class members were allegedly misclassified, the trial court abused its discretion by determining that common questions did not predominate on this claim.
Freyd v. University of Oregon (2021)
990 F.3d 1211 (9th Cir. 2021)
In an Equal Pay Act claim, the plaintiff has the burden of establishing a prima facie case of discrimination by showing that employees of the opposite sex were paid different wages for equal work; the plaintiff must show that the jobs being compared—not the individuals holding the jobs—are substantially equal. Under Oregon law, comparable work is a more inclusive standard than equal work, and requires that the two jobs have important common characteristics. To make a prima facie case of disparate impact, a plaintiff must show that a facially neutral employment practice has a significantly discriminatory impact on a group protected by Title VII; the plaintiff must also establish that the challenged practice is either not job related or is inconsistent with business necessity; even if the practice is job related and consistent with business necessity, the plaintiff may still prevail by showing that the employer refuses to adopt an available alternative practice that has less disparate impact and serves the employer’s legitimate needs.
Clark v. Superior Court (Arthroscopic & Laser Surgery Center of San Diego) (2021)
62 Cal.App.5th 289,276 Cal.Rptr.3d 570
A worker exhausted her administrative remedies even though she named the wrong entity in her Department of Fair Employment and Housing complaint, and never corrected the mistake, where it was clear who intended respondent was, and the mistake could not possibly have hampered any administrative investigation or prejudiced the respondent in any judicial proceedings.
Gomez v. Regents of the University of California (2021)
63 Cal.App.5th 386, 277 Cal.Rptr.3d 735
The Regents of the University of California are not subject to state minimum wage laws; the regents’ timekeeping procedures are matters of internal affairs of the university that do not come within any of the exceptions to the regents’ constitutional immunity.
Parada v. East Coast Transport Inc. (2021)
62 Cal.App.5th 692, 277 Cal.Rptr.3d 89
The rule from Dynamex applies retroactively to all cases that were not yet final at the time of that decision; reliance or fairness considerations do not preclude retroactive application of Dynamex under due process principles. The Federal Aviation Administration Authorization Act does not preempt a claim against a motor carrier seeking to enforce the ABC test.
Jones v. Quality Coast, Inc. (2021)
69 Cal.App.5th 766
A janitorial worker was a supervisory employee for purposes of the Displaced Janitor Opportunity Act where he was designated a supervisor by an outgoing janitorial company, who described himself as the supervisor, who was described by others as a site supervisor, and occupied a leadership role among all the janitorial staff; while the DJOA makes reference to employees who would be defined as managerial, supervisory, or confidential under the Fair Labor Standards Act, it does so only by using the word including, which is not a word of limitation.
Kaanaana v. Barrett Business Services, Inc. (2018)
29 Cal.App.5th 778, 240 Cal.Rptr.3d 636
Labor Code §1720(a)(2) covers more than just construction-type work; public works in §1720(a)(2) is not limited by a different definition set out in §1720(a)(1); §1720(a)(2)’s coverage turns on the governmental entity for which the work is done; contract workers who act as belt sorters for a county sanitation district perform public works for purposes of §1720(a)(2).
Salazar v. See’s Candy Shops, Inc. (2021)
64 Cal.App.5th 85, 278 Cal.Rptr.3d 450
Where the evidence for a putative class action over a claim that an employer failed to provide second meal breaks to shop employees, but time records showed that 24% of shifts longer than 10 hours actually included a second meal period, a trial court reasonably concluded that at least some class members were offered a second meal period in accordance with the law, and a series of mini-trials would be necessary to determine if the employer consistently applied an unlawful practice.
Smith v. BP Lubricants USA(Smith v. BP Lubricants USA Inc. (2021)
64 Cal.App.5th 138, 278 Cal.Rptr.3d 587
The crux of an aiding abetting claim under the Fair Employment and Housing Act is concerted activity between parties. An intentional infliction of emotional distress claim can stem from the use of racial epithets if coupled with aggravating circumstances; where reasonable men may differ, it is for the jury to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. A plaintiff can state a valid claim under the Unruh Act that is based only on alleged verbal harassment.
Franklin v. Community Regional Medical Center (2021)
998 F.3d 867 (9th Cir. 2021)
A hospital that used the services of a staffing agency and that was a nonsignatory to a traveling nurse’s assignment contract could compel arbitration of the nurse’s wage-and-hour claims pursuant to that contract since her claims were intimately founded in and intertwined with her contract with the staffing agency.
Magadia v. Wal-Mart Associates (2021)
999 F.3d 668 (9th Cir. 2021)
A plaintiff lacked standing to bring a California Private Attorney General Act claim for an employer’s meal-break violations where he himself did not suffer injury. A violation of California Labor Code §226(a) creates a cognizable Article III injury.
General Atomics v. Superior Court (Green) (2021)
64 Cal.App.5th 987, 279 Cal.Rptr.3d 373
An employer’s wage statements did not violate Labor Code §226 where the statements show the applicable hourly rates in effect and the corresponding number of hours worked at each rate, and the statements allow employees to readily determine whether their wages were correctly calculated.
Ferra v. Loews Hollywood Hotel, LLC (2021)
11 Cal.5th 858, 280 Cal.Rptr.3d 783, 489 P.3d 1166
The phrase regular rate of compensation under Labor Code §226.7(c), like regular rate of pay under §510(a), encompasses all non-discretionary payments, not just hourly wages.
National Labor Relations Board v. National Association of Broadcast Employees & Technicians (2021)
4 F.4th 801 (9th Cir. 2021)
After a collective bargaining agreement has expired, unilateral changes by management are permissible during bargaining only if the CBA contained language explicitly providing that the relevant provision permitting such a change would survive contract expiration.
Magadia v. Wal-Mart Associates (2021)
999 F.3d 668 (9th Cir. 2021)
A plaintiff lacked standing to bring a California Private Attorney General Act claim for an employer’s meal-break violations where he himself did not suffer injury. A violation of California Labor Code §226(a) creates a cognizable Article III injury.
Usher v. White (2021)
64 Cal.App.5th 883, 279 Cal.Rptr.3d 281
The words violates, or causes to be violated in Labor Code §558.1 impose liability on an owner if, when acting on behalf of an employer, the owner has personal involvement in the enumerated violations in §558.1 or absent personal involvement, has sufficient participation in the activities of the employer—such that the owner may be deemed to have contributed to, and thus have cause[d] such violations.
Walsh v. Ariz. Logistics, Inc. (2021)
998 F.3d 393 (9th Cir. 2021)
Although the Federal Arbitration Act favored arbitration agreements, the U.S. Supreme Court’s decision in EEOC v. Waffle House provides that a private arbitration agreement binds the Secretary of Labor when bringing a Fair Labor Standards Act enforcement action that seeks relief on behalf of one party to the arbitration agreement against the other party to that agreement.
Johnson v. Maxim Healthcare Services, Inc. (2021)
66 Cal.App.5th 924, 281 Cal.Rptr.3d 478
An employee, whose individual claim is time-barred, may still pursue a representative claim under the Private Attorney General Act.
Bruni v. The Edward Thomas Hospitality (2021)
66 Cal.App.5th 924, 281 Cal.Rptr.3d 478
A municipal ordinance which provides laid-off employees that have been employed by the employer for six months or more with a right to be rehired in certain circumstances was inapplicable to worker who was involuntarily separated from employment after working for less than six months, even though he had a prior stint of employment that had lasted over six months before that ended when he voluntarily resigned due to scheduling difficulties; the purpose of the recall ordinance is to protect employees who were involuntarily laid off due to economic circumstances—not to protect employees who quit for personal reasons.
Herrera v. Doctors Medical Center of Modesto, Inc. (2021)
67 Cal.App.5th 538, 282 Cal.Rptr.3d 262
Private Attorneys General Act representative claims for civil penalties are not subject to arbitration under a predispute arbitration agreement; PAGA claims cannot be forced into arbitration based on agreements made by former employees before they became authorized representatives of the state. A PAGA claim lies outside the Federal Arbitration Act’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship.
Pollock v. Tri-Modal Distribution Services, Inc. (2021)
11 Cal.5th 918, 281 Cal.Rptr.3d 498, 491 P.3d 290
The statute of limitations begins to run in a failure to promote case brought under the harassment provision of the Fair Employment and Housing Act at the point when an employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee. Government Code §12965(b)’s directive that a prevailing FEHA defendant shall not be awarded fees and costs unless the court finds the action was frivolous applies to an award of costs on appeal.
Natarajan v. Dignity Health (2021)
11 Cal.5th 1095, 282 Cal.Rptr.3d 1, 492 P.3d 294
A person hired by a hospital to serve as a hearing officer may be disqualified for financial bias under Business and Professions Code §809.2(b), on grounds that the officer has an incentive to favor the hospital in order to increase the chances of receiving future appointments, but a hearing officer’s interest in future employment is not automatically disqualifying.
Taylor v. Financial Casualty and Surety, Inc. (2021)
67 Cal.App.5th 966, 282 Cal.Rptr.3d 757
In Labor Code wage and hour violation cases, the wage order definition of the employment relationship and the Martinez test control. A company that authorized a licensed bail agent to effect bail undertakings on its behalf had a financial interest in the work being performed by the agent and its fugitive recovery personnel, but absent evidence it had control over the day-to-day management, payment, hiring and firing of fugitive recovery personnel, it cannot be held responsible for alleged wage and hour and other Labor Code violations.
Gallano v. Burlington Coat Factory, LLC (2021)
67 Cal.App.5th 953, 282 Cal.Rptr.3d 748
An employee may incur a loss for purposes of a Labor Code §2802(a) claim when the employer causes or directs the employee to become personally liable for a necessary business-related expense.
A plaintiff who had been employed by the defendant and alleged she had personally suffered at least one Labor Code violation on which a Private Attorney Generals Act claim was based was an aggrieved employee with standing to pursue penalties on the state’s behalf. Evidence Code §801 does not limit an expert to the use of admissible evidence in forming an opinion.
67 Cal.App.5th 891, 282 Cal.Rptr.3d 579
The Division of Labor Standards Enforcement improperly issued citations to employers pursuant to Labor Code §1197.1 where the employers undisputedly paid all their employees the minimum wage by payday; while the failure to pay final wages to an employee who is discharged or quits triggers waiting time penalties, it does not follow that the failure to pay final wages constitutes a failure to pay minimum wages.
12 Cal.5th 29, 282 Cal.Rptr.3d 658, 493 P.3d 212
When a landowner hires an independent contractor to perform a task on the landowner’s property, the landowner presumptively delegates to the contractor a duty to ensure the safety of its workers; this encompasses a duty to determine whether the work can be performed safely despite a known hazard on the worksite; where the hirer has effectively delegated its duties, there is no affirmative obligation on the hirer’s part to independently assess workplace safety; unless a landowner retains control over any part of the contractor’s work and negligently exercises that retained control in a manner that affirmatively contributes to the injury, it will not be liable to an independent contractor or its workers for an injury resulting from a known hazard on the premises.
Wasito v. Kazali (2021)
68 Cal.App.5th 422, 283 Cal.Rptr.3d 494
Labor Code §206 and §206.5 preclude a Code of Civil Procedure §998 offer that resolves disputed wage claims if there are undisputed wages due at the time of the offer.
68 Cal.App.5th 882, 283 Cal.Rptr.3d 737
An age-based remark not made directly in the context of an employment decision or uttered by a nondecision maker may be relevant, circumstantial evidence of discrimination; when an out-of-court statement is used as circumstantial proof of the declarant’s state of mind, the hearsay rule is not implicated, because the statement is not offered to prove the truth of what it asserts.
68 Cal.App.5th 868, 283 Cal.Rptr.3d 868
A triable question exists as to whether parent company who operated gas stations through subsidiaries was the employer of a subsidiary’s employee where the parent’s employees told the subsidiary’s employee they had the power to fire him, or to have him fired; the parent had contractually-mandated control over the subsidiary’s bank accounts; and the parent had the ability to prevent the subsidiary’s employee from working in its business. A person can be a joint employer without exercising direct control over the employee or having the ability to fire the employee.
U.S. Chamber of Commerce v. Bonta (2021)
(U.S.9th Cir. 2021) 13 F.4th 766
California Labor Code §432.6 neither conflicts with the language of §2 of the Federal Arbitration Act nor created a contract defense by which executed arbitration agreements could be invalidated or not enforced; the civil and criminal penalties associated with California Assembly Bill 51 stood as an obstacle to the purposes of the FAA and are therefore preempted. Government Code §12953 and Labor Code §433 are preempted to the extent that they applied to executed arbitration agreements covered by the FAA.
Curcio v. Fontana Teacher Association CTA/NEA (2021)
68 Cal.App.5th 924, 283 Cal.Rptr.3d 909
The Public Employees Relations Board has exclusive jurisdiction to determine whether a public school employee had alleged an unfair practice; where an aggrieved party filed her petition in the superior court to review the board’s decision not to issue a complaint and the court sustained the demurrer on the grounds on the grounds that party had not pleaded application of one or more of the exceptions to the bar on judicial review under Government Code §3542, the dismissal of her petition with prejudice was an appealable judgment, but since she did not appeal, that decision is now final.
Lawson v. Grubhub, Inc. (2021)
(U.S.9th Cir. 2021) 13 F.4th 908
A district court properly denied certification to a proposed class of delivery drivers where all members but two had signed agreements waiving their right to participate in a class action. California Proposition 22 did not abate the application of the retroactive application of the ABC test to claims rooted in wage orders.
Guzman v. NBA Automotive, Inc. (2021)
68 Cal.App.5th 1109, 284 Cal.Rptr.3d 39
A worker sufficiently exhausted her administrative remedies even though her administrative complaint with the Department of Fair Housing and Employment gave the wrong name for her employer, where her complaint unmistakably identified her employer as the respondent.
Amaro v, Anaheim Arena Management, LLC (Aller) (2021)
69 Cal.App.5th 521, 284 Cal.Rptr.3d 566
A class members’ release in a settlement was overbroad where the release purported to cover all potential claims in any way relating to the facts pled in the class complaint; the in any way relating language causes the release to unreasonably extend to claims that may only be tangentially related to the allegations in the complaint. The Fair Labor Standards Act’s written consent requirement does not apply to a release in a class settlement of state wage and hour claims. An objecting party must show some evidence of unfairness to the class or misconduct to support a collusive reverse auction finding.
Department of Fair Employment and Housing v. M&N FinancingCorporation (2021)
69 Cal.App.5th 434, 284 Cal.Rptr.3d 477
It is unlawful under Government Code §12940(i) for any employer to coerce an employee to violate Civil Code §51 and §51.5; employees who are coerced by their employer to violate §51 and §51.5 are aggrieved within the meaning of §12965(a) and have standing to sue their employer pursuant to §12940(i). In order to state a claim under §12940(k), a plaintiff must be able to prevail on an underlying claim of discrimination.
Turrieta v. Lyft, Inc. (Seifu) (2021)
69 Cal.App.5th 955, 284 Cal.Rptr.3d 767
Where two different plaintiffs filed separate representative actions under the Private Attorneys General Act against the same employer, the plaintiff in the first PAGA action did not have standing to vacate the judgment in the second action, or to challenge the judgment on appeal.
American Society of Journalists and Authors, Inc. v. Bonta (2021)
(U.S.9th Cir. 2021) 15 F.4th 954
California Labor Code §2778 regulates economic activity rather than speech and the statute is aimed at the employment relationship—a traditional sphere of state regulation; although the ABC classification may indeed impose greater costs on hiring entities, which in turn could mean fewer overall job opportunities for certain workers, such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation. The legislature’s occupational distinctions in §2778 were rationally related to a legitimate state purpose.
Morales v. Factor Surfaces LLC (2021)
70 Cal.App.5th 367, 285 Cal.Rptr.3d 310
Where an employer failed to provide records demonstrating the portion of each weekly paycheck attributable to commissions (if any) and the actual number of hours worked by an employee each week, and failed to propose any manner in which the court could accurately estimate the commission payments, the court could properly divide the total weekly paycheck by 40 to approximate the employee’s regular rate of pay.
SEIU-USWW v. Preferred Building Services, Inc. (2021)
70 Cal.App.5th 403, 285 Cal.Rptr.3d 391
The time of contract termination for purposes of the Displaced Janitor Opportunity Act and the Displaced Worker Protection Act is the last day the terminated contractor actually provides janitorial services at the site, regardless of any other nominal or technical contract end date.
Gamboa v. Northeast Community Clinic (2021)
72 Cal.App.5th 158,286 Cal.Rptr.3d 891
A worker adequately challenged the authenticity of an arbitration agreement by saying under penalty of perjury that she did not remember it; the employer did not meet its burden to show that a contract was formed where the employer presented no evidence the worker saw or signed the agreement; while the employer did not have to authenticate the worker’s signature on the agreement, proferring no admissible evidence was insufficient.
Woods v. American Film Institute (2021)
72 Cal.App.5th 1022, 287 Cal.Rptr.3d 701
A trial court correctly decided that putative class members who expected no compensation were not employees under California law.
Garcia v. Expert Staffing West (2021)
73 Cal.App.5th 408, 288 Cal.Rptr.3d 404
An arbitration clause between a job applicant and her prospective employer does not apply to disputes between the applicant and her former employers based on the existence of a business relationship between the prospective employer and the applicant’s past employers.
Vines v. O’Reilly Auto Enterprises, LLC (2022)
74 Cal.App.5th 174, 289 Cal.Rptr.3d 310
Where evidence of the facts regarding the alleged underlying discriminatory and harassing conduct about which the plaintiff had complained was relevant to establish, for the retaliation cause of action, the reasonableness of his belief that conduct was unlawful, a trial court abused its discretion in finding the claims were not sufficiently related or factually intertwined to support an award of attorney fees under the Fair Employment and Housing Act.
Department of Corrections and Rehabilitation v. State Personnel Board (Mabry-Height) (2022)
74 Cal.App.5th 908, 290 Cal.Rptr.3d 70
An employee’s burden to show by a preponderance of the evidence that discrimination was a ‘substantial motivating factor’ in the adverse employment decision[s] arises only where a prima facie case of discrimination has been made by the plaintiff and the employer successfully rebuts the presumption of discrimination arising from the prima facie case by producing evidence of a legitimate, nondiscriminatory reason for the challenged conduct; only then does the presumption of discrimination drop out of the case and the plaintiff is held to her burden of persuading the fact finder that the proffered reason was merely a pretext for unlawful discrimination, or, even if the proffered reason is believed, prohibited discrimination was nevertheless a substantial motivating factor in the challenged adverse employment action.
Hutcheson v. Superior Court (UBS Financial Services Inc.) (2022)
74 Cal.App.5th 932, 290 Cal.Rptr.3d 60
If a trial court finds that the claims in an amended Private Attorneys General Act complaint rest on the same general set of facts, involve the same injury, and refer to the same instrumentality as the claims in the original complaint, then the relation back doctrine applies.
White v. Smule, Inc. (2022)
75 Cal.App.5th 346, 290 Cal.Rptr.3d 328
A worker’s at-will employment status meant that he could not establish justifiable reliance on alleged misrepresentations regarding the length of time his work would last, but he could still establish justifiable reliance on alleged representations on the character of that work.
Estrada v. Royalty Carpet Mills, Inc. (2022)
76 Cal.App.5th 685, 292 Cal.Rptr.3d 1
A court cannot strike a Private Attorneys General Act claim based on manageability.
Colonial Van & Storage, Inc. v. Superior Court (Dominguez) (2022)
76 Cal.App.5th 487, 291 Cal.Rptr.3d 581
An employer’s affirmative duty to provide employees with a safe place to work does not include ensuring that an off-site meeting place for coworkers and business associates like an employee’s private residence is safe from third-party criminal harm.
LaFace v. Ralph’s Grocery Co. (2022)
75 Cal.App.5th 388, 290 Cal.Rptr.3d 447
Private Attorneys General Act plaintiffs stand in the shoes of the administrative agency and possess the same right and interest as it does; the nature of that right is administrative regulatory enforcement, which occurs in administrative proceedings and which is subject to judicial review without a jury trial right.
Buchanan v. Watkins & Letofsky, LLP (2022)
(U.S.9th Cir. 2022) 30 F.4th 874
Because Title VII, 42 U.S.C. §2000e(b), and the Americans with Disabilities Act include the same 15-employee threshold and statutory enforcement scheme, the integrated enterprise doctrine applicable in Title VII cases applies equally under the ADA.
Vatalaro v. County of Sacramento (2022)
2022 WL 1775708 (Cal. Ct. App. 2022)
Once an employee makes a prima facie case under Labor Code §1102.5, the employer must do more than show it had a legitimate, nondiscriminatory reason for the adverse employment action; it must, per §1102.6, demonstrate, by clear and convincing evidence, that it would have taken the action in question for legitimate, independent reasons even had the plaintiff not engaged in protected activity; the employee need not show that the employer’s nonretaliatory reason was pretextual.
Naranjo v. Spectrum Security Services, Inc. (2022)
13 Cal.5th 93, 509 P.3d 956
If an employer unlawfully makes an employee work during all or part of a meal or rest period, the employer must pay the employee an additional hour of pay, and this extra pay for missed breaks constitutes wages subject to the same timing and reporting rules as other forms of compensation for work; the rate of prejudgment interest that applies to amounts due for failure to provide meal and rest breaks is the 7% default rate set by the state Constitution.
Hebert v. Barnes & Noble, Inc. (2022)
78 Cal.App.5th 791
A reasonable jury could find that an employer acted willfully where it violated an unambiguous provision of the Fair Credit Reporting Act by failing to provide a job applicant with a standalone disclosure stating that the employer may obtain the applicant’s consumer report when making a hiring decision, at least one of the company’s employees was aware of the extraneous information in the disclosure being used before the disclosure was displayed to job applicants, the company may not have adequately trained its employees on FCRA compliance, and/or the company may not have had a monitoring system in place to ensure its disclosure complied with the FCRA.
Shields v. Credit One Bank, N.A. (2022)
(U.S.9th Cir. 2022) 32 F.4th 1218
In order to be substantially limiting for purposes of the Americans with Disabilities Act, an impairment need not involve permanent or long-term effects.
Shaw v. Superior Court (2022)
78 Cal.App.5th 245
A trial court did not err in applying the exclusive concurrent jurisdiction rule to deny a motion to lift the stay on a representative suit under the Private Attorneys General Act where the plaintiffs conceded that their suit arises from the same facts and theories as another pending PAGA action.
Wing v. Chico Healthcare & Wellness Centre, LP (2022)
78 Cal.App.5th 22, 293 Cal.Rptr.3d 266
The U.S. Supreme Court’s decisions in Epic Systems Corp. v. Lewis and Kindred Nursing Centers v. Clark did not impliedly overrule the California Supreme Court’s decision in Iskanian v. CLS Transportation Los Angeles since neither case directly addressed the Private Attorneys General Act or whether a worker may waive the right to bring a representative action on behalf of a state government.
Hill v. Walmart Inc. (2022)
(U.S.9th Cir. 2022) 32 F.4th 811
A good faith mistake about a worker’s employment status is a defense to the imposition of waiting-time penalties pursuant to Labor Code §203. The test for employment from Dynamex Operations West v. Superior Court applies only to cases governed by California Industrial Welfare Commission wage orders; the applicable test for determining whether a worker was entitled to penalties under §203 is the common law test derived from Borello & Sons, Inc. v. Department of Industrial Relations.
Meza v. Pacific Bell Telephone Co. (2022)
79 Cal.App.5th 1118
The statutory requirement to list on the wage statement hourly rates in effect during the pay period and the corresponding number of hours worked at such rates does not encompass a requirement that an employer list the rates and hours from prior pay periods underlying an overtime true-up calculation.
Allen v. Santa Clara Cty. Corr. Peace Officers Ass’n
(E.D.Cal. 2019) 400 F. Supp. 3d 998
Municipalities are entitled to a good faith defense to a suit for a refund of mandatory agency fees under 42 U.S.C. §1983.
Seviour-Iloff v. Lapaille
(June 28, 2022, Nos. A163503, A163504) Cal.App.5th, 2022 Cal. App. LEXIS 565
The filing of the Initial Report or Claim form initiates the Berman hearing procedure. Labor Code §558.1 must be interpreted as allowing for a private right of action.
Callahan v. Brookdale Senior Living Cmtys., Inc.
(9th Cir. June 29, 2022, Nos. 20-55603, 20-55761) 2022 U.S. App. LEXIS 17954
A worker, who was a plaintiff in a Private Attorneys General Act case against the same employer as a different worker, was not entitled to intervene in the other worker’s PAGA action to object to the proposed settlement since she was not a party to the other worker’s case and she failed to show she was inadequately represented by the parties in the other worker’s PAGA action.
Hamilton v. Wal-Mart Stores, Inc.
(9th Cir. June 30, 2022, Nos. 19-56161, 20-55223) 2022 U.S. App. LEXIS 18111
An employee plaintiff need not comply with the Federal Rule of Civil Procedure 23 requirements, including the manageability requirement, to assert a California Private Attorney General Act cause of action; Rule 26(a) also does not apply to PAGA claims.
Bowerman v. Field Asset Servs., Inc.
(9th Cir. July 5, 2022, Nos. 18-16303, 18-17275) 2022 U.S. App. LEXIS 18420
Class certification was inappropriate where the putative class members could not establish their employer’s liability for failing to pay overtime wages or to reimburse expenses by common evidence. The California Court of Appeal has repeatedly limited Dynamex’s applications to claims based on or rooted in California’s wage orders; Dynamex did not apply to class members’ expense reimbursement claims based on Labor Code §2802, Borello’s multifactor and fact-intensive inquiry did. The court will exercise pendent appellate jurisdiction over interim fee awards that are inextricably intertwined with or necessary to ensure meaningful review of final orders on appeal.
Meda v. Autozone, Inc.
(July 19, 2022, No. B311398) ___Cal.App.5th___ 2022 Cal. App. LEXIS 629
Where an employer has not expressly advised its employees that they may use a seat during their work and has not provided a seat at a workstation, the inquiry as to whether an employer has provided suitable seating may be fact-intensive and may involve a multitude of job and workplace-specific factors which may not be amenable to resolution by a motion for summary judgment.
Howitson v. Evans Hotels, LLC
(July 21, 2022, No. D078894) ___Cal.App.5th___ 2022 Cal. App. LEXIS 639
An employee who settles individual claims against the employer for alleged Labor Code violations is not subsequently barred by claim preclusion from bringing a Private Attorney Generals Act enforcement action against the employer for the same Labor Code violations when, prior to settlement, the employee could have added the PAGA claims to the existing action.
Department of Fair Employment and Housing v. Cisco Systems (2022)
Aug. 5, 2022, No. H048910 Cal.App.5th 2022 Cal. App. LEXIS 687]
The Department of Fair Employment and Housing cannot be compelled to arbitrate an employment discrimination lawsuit when the affected employee agreed to resolve disputes with the employer through arbitration.
Manuel v. Superior Court (Brightview Landscape Services) (2022) Manuel
Aug. 26, 2022, No. H048665 ___Cal.App.5th___ 2022 Cal. App. LEXIS 736
The plain language of Labor Code §1171.5 provides that where the plaintiff, a former employee, has alleged that the defendant, the former employer, is liable for violation of state labor laws, the defendant employer may not propound discovery inquiring into the plaintiff’s immigration status unless the defendant has shown by clear and convincing evidence that the discovery is necessary to comply with federal immigration law because the plaintiff seeks remedies necessarily in violation of federal immigration law, such as reinstatement or post-discovery backpay.