Monday, January 30, 2017

Montano v. The Wet Seal Retail, Inc

Where arbitration agreement purported to bar arbitration of representative claims, including claims under the Labor Code Private Attorney Generals Act, contrary to the state's public policy, and the agreement contained a non-severability clause, trial court correctly ruled that the agreement was unenforceable as to all of the plaintiff's claims. Where there had been no stay of proceedings, trial court was within its authority in ruling on discovery motion at the same time it denied petition to compel arbitration.

Montano v. The Wet Seal Retail, Inc. - filed Jan. 17, 2015, publication ordered Jan. 30, 2017, Second District, Div. Four
Cite as 2017 S.O.S. 482

For more information contact us at: http://beverlyhillsemploymentlaw.com/

Labertew v. Langemeier

Labertew v. Langemeier (9th Cir. 14-15879 1/20/17) Garnishment of Wages/Removal



The panel vacated the district court’s judgment discharging insurers, and remanded for further proceedings in a garnishment proceeding arising out of an insurance settlement and assignment [of an employment dispute].



In the underlying settlement, the plaintiffs and defendant stipulated to a judgment against the defendant for $1.5 million, and defendant assigned to the plaintiffs her rights against her liability insurers. Plaintiffs applied in state court for writs of garnishment against the insurers. The insurers removed the state garnishment proceedings to federal district court.



The district court, pursuant to Fed. R. Civ. P. 69, applied Arizona garnishment law, and held that because the plaintiffs missed their ten day window for objecting, the garnishment failed and the garnishees/insurers were discharged.



The panel held that the garnishment proceeding was removable, and the district court had jurisdiction. The panel held that under Swanson v. Liberty National Insurance Co., 353 F.2d 12 (9th Cir. 1965), the garnishment proceeding against the insurers, for purposes of removal, was a separate and independent civil action from the suit by the plaintiffs in the underlying action; and as such, it was removable.



The panel held that there was no federal judgment in this case upon which to execute. The panel noted that the only judgment was in the Superior Court of the State of Arizona. The panel further held that the necessary predicate for application of Fed. R. Civ. P. 69 was a judgment in the federal district court in which execution was sought. The panel also held that there was no state judgment against the insurance companies that could be registered and enforced in federal court.



The panel held that the district court had discretion under Fed. R. Civ. P. 81(c)(2) to order repleading. The panel held that the Arizona laws for garnishment proceedings, were, upon removal, supplanted by the federal rules. The panel also held that the district court may order repleading because this case was in substance a claim by the insureds’ assignee against the insurers for breaching their obligations under their insurance policies, and the claims in the state court pleadings were no longer at issue.

For More Information contact us at: http://beverlyhillsemploymentlaw.com/

Syed v. M-I, LLC

Syed v. M-I, LLC (9th Cir. 14-17186 1/20/17) Fair Credit Reporting Act/Liability Waiver by Employer



The panel reversed the district court’s dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) of an action under the Fair Credit Reporting Act.



The panel held that a prospective employer violates 15 U.S.C. § 1681b(b)(2)(A) when it procures a job applicant’s consumer report after including a liability waiver in the same document as a statutorily mandated disclosure. The panel also held that, in light of the clear statutory language that the disclosure document consist “solely” of the disclosure, a prospective employer’s violation of § 1681b(b)(2)(A) is “willful” when the employer includes terms in addition to the disclosure, such as the liability waiver here, before procuring a consumer report or causing one to be procured.


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Alaska Airlines v. Schurke

Alaska Airlines v. Schurke (9th Cir. 13-35574 1/25/17) Railway Labor Act Preemption/Flight Attendants’ Family Leave



The panel reversed the district court’s summary judgment in favor of the defendants in a labor law suit brought by Alaska Airlines, Inc.



A flight attendant claimed entitlement under the Washington Family Care Act to reschedule leave to care for her child who was ill. She and her union filed an administrative complaint with the State of Washington Department of Labor and Industries, which determined that the flight attendant was entitled to use her December vacation leave to care for her child in May.



The panel held that the Railway Labor Act preempted the flight attendant’s claim under the Washington Family Care Act, which provides that entitlement to leave is to be defined by an employee’s collective bargaining agreement. The panel concluded that the state right and the collective bargaining agreement were inextricably intertwined. Under the Railway Labor Act, the claim was a “minor dispute” about defining the rights guaranteed by the flight attendant’s collective bargaining agreement. She therefore was required to use the collective bargaining agreement grievance procedure to resolve her claim.



Dissenting, Judge Christen wrote that the flight attendant’s claim was not preempted because the right she asserted arose from the Washington Family Care Act, if it existed at all, and did not depend upon the collective bargaining agreement.

For more information please visit our wesbsite at: http://beverlyhillsemploymentlaw.com/

Reynaga v. Roseburg Forest Products

District court erred in granting summary judgment to defendant employer as to the plaintiff's hostile work environment claim. A reasonable trier of fact could conclude that supervisor's conduct was sufficiently severe or pervasive to create a hostile work environment, and the employer knew about the supervisor's conduct and failed to take corrective remedial action. Plaintiff demonstrated the necessary prima facie case to survive summary judgment on his disparate treatment claim, based on the employer terminating his employment and breaking into his locker. Genuine disputes of fact existed as to whether employer's actions were motivated by intent to discriminate against plaintiff based on his Mexican origin, and as to whether plaintiff was legitimately fired for refusing work or was retaliated against for engaging in activity protected by Title VII.

Reynaga v. Roseburg Forest Products - filed Jan. 26, 2017
Cite as 2017 S.O.S. 14-35028

For More Information Please visit us at:
http://beverlyhillsemploymentlaw.com/

Tuesday, January 10, 2017

Navarro v. Encino Motorcars

Automobile dealerships must pay overtime compensation to service advisors.

Navarro v. Encino Motorcars - filed Jan. 9, 2017 

Cite as 2017 S.O.S. 13-55323 

For more information please contact us at our website: http://www.beverlyhillsemploymentlaw.com/

Tuesday, January 3, 2017

Augustus v. ABM Security Services

State law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time.

For More information please visit our website at:
http://beverlyhillsemploymentlaw.com/
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