Thursday, December 6, 2018

Public Employment Relations Board v. Bellflower Unified School District

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.

Public Employment Relations Board v. Bellflower Unified School District - filed Dec. 4, 2018, Second District, Div. Four
Cite as 2018 S.O.S. 5789

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Wednesday, December 5, 2018

Acosta v. Brain

An attorney's participation in a Department of Labor investigation of an Employee Retirement Income Security Act trust fund trustee constituted a protected activity for purposes of 29 U.S.C. Sec. 1140. The fact that an individual defendant was not the ultimate decision maker for a retaliatory action does not immunize him under a cat's-paw theory of liability. Pursuant to ERISA Sec. 404 a court must distinguish between actions a fiduciary took in connection with its fiduciary responsibilities to the plan and those that actions taken as an individual or entity acting in its corporate capacity. ERISA Sec. 502(a)(5) does not provide a basis for a permanent injunction where no aspect of the injunction redressed or enforced a violation of ERISA Sec. 510.

Acosta v. Brain - filed Dec. 4, 2018 
Cite as 2018 S.O.S. 16-56529 

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ASARCO, LLC v. United Steel, Paper and Forest

An arbitrator did not exceed his authority in reforming a collective bargaining agreement upon finding that the parties were mutually mistaken as to its terms when they agreed to it, even though the agreement contained a "no-add" provision.

ASARCO, LLC v. United Steel, Paper and Forest - filed Dec. 4, 2018 
Cite as 2018 S.O.S. 16-16363 

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Thursday, November 29, 2018

City of Oakland v. Oakland Police and Fire Retirement System

Following this court’s published decision in City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210 (OPFRS)—which involved the legitimacy of certain retirement benefits regularly paid by the Oakland Police and Fire Retirement Board (Board) to members and beneficiaries of the Oakland Police and Fire Retirement System (PFRS)—the Retired Oakland Police Officers Association, along with several individual PFRS pensioners (collectively, the “Association”) sought attorney fees in the trial court.  Specifically, the Association—interveners in the underlying action—claimed an entitlement to fees under both California’s private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5), and section 1988 of the federal Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988 (section 1988).  After considering the matter at some length, the trial court determined that fees were not warranted under either statute.  On appeal, many of the trial court’s numerous conclusions made in connection with its denial of fees are disputed either by the Association or by respondent City of Oakland (City).  We have considered the arguments raised by both parties, and deem an award of attorney fees under section 1021.5 to be proper.  We therefore reverse and remand the matter so that the trial court can determine the appropriate amount of such an award, consistent with our conclusions herein.

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Sulyma v. Intel Corp. Inv. Policy Comm.

The panel reversed the district court’s grant of summary judgment in favor of the defendants in an ERISA action on the ground that the limitations period had expired.

A former employee and participant in Intel’s retirement plans sued the company for allegedly investing retirement funds in violation of ERISA section 1104. The district court concluded that the employee had the requisite “actual knowledge” to trigger ERISA’s three-year limitations period, 29 U.S.C. § 1113(2).

The panel held that a two-step process is followed in determining whether a claim is barred by section 1113(2). First, the court isolates and defines the underlying violation on which the plaintiff’s claim is founded. Second, the court inquires whether the plaintiff had “actual knowledge” of the alleged breach or violation. The panel held that actual knowledge does not mean that a plaintiff had knowledge that the underlying action violated ERISA, nor does it merely mean that a plaintiff had knowledge that the underlying action occurred. Rather, the defendant must show that the plaintiff was actually aware of the nature of the alleged breach more than three years before the plaintiff’s action was filed. In an ERISA section 1104 case, the plaintiff must have been aware that the defendant had acted and that those acts were imprudent. Disagreeing with the Sixth Circuit, the panel held that the plaintiff must have actual knowledge, rather than constructive knowledge.

The panel concluded that disputes of material fact as to the plaintiff’s actual knowledge precluded summary judgment, and remanded the case to the district court for further proceedings.

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Friday, November 16, 2018

Hernandez v. Pacific Bell Telephone Company

Workers are not entitled to be compensated for time spent traveling in employer-provided vehicles between their homes and worksites under an optional and voluntary home dispatch program. Simply transporting tools and equipment during commute time is not compensable work where no effort or extra time is required to effectuate the transport.

Hernandez v. Pacific Bell Telephone Company - filed Nov. 15, 2018, Third District 
Cite as 2018 S.O.S. 5415 

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G.R.P. Mechanical Company, Inc.

G.R.P. Mechanical Company, Inc.  (14-CA-211817)  Bethalto, IL, November 6, 2018.  No exceptions having been filed to the September 24, 2018 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order.  Charge filed by an individual. 

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Rhode Island LFG Genco, LLC

Rhode Island LFG Genco, LLC  (01-RC-208704)  Johnston, RI, November 7, 2018.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision on Challenged Ballot and Certification of Representative, finding the petitioned-for unit of maintenance-department technicians appropriate for collective bargaining purposes, as it raised no substantial issues warranting review.  The Board also denied the Employer’s Motion to Stay the Certification of Representative.  Petitioner—International Brotherhood of Teamsters Local 251.  Chairman Ring and Members Kaplan and Emanuel participated.

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Thursday, November 15, 2018

Huerta v. Kava Holdings

Code of Civil Procedure Sec. 998 does not apply to nonfrivolous Fair Employment and Housing Act litigation that predates the application of the amended version of Government Code Sec. 12965(b).

Huerta v. Kava Holdings - filed Nov. 14, 2018, Second District, Div. Eight 
Cite as 2018 S.O.S. 5371 

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Prison Group Faces Lawsuit Over Immigrant Wages

ALBUQUERQUE, N.M. — The operator of one of the largest private prison systems in the United States paid detained immigrants at a New Mexico prison as little as $1 per day as part of “volunteer” work programs, and refused to pay them minimum wages even though they were not convicted of any crimes, a new federal class-action lawsuit alleges.

Three detained men from the Central African country of Cameroon who came to the U.S. seeking asylum were paid the low wages for janitorial and kitchen work at the CoreCivic-run prison at the Cibola County Correctional Center in Milan, New Mexico, according to court documents filed Wednesday in U.S. District Court in Maryland.

For about six months, Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses Awombang were held at the detention center after surrendering to U.S. officials at the U.S.-Mexico border in Texas in June 2017, said Joseph Sellers, the attorney for the men and a partner at New York law firm of Cohen Milstein Sellers & Toll.

All three men are members of a politically persecuted Anglophone minority in Cameroon and they came to the U.S. fleeing torture and persecution by police, Sellers said.

But it was while they awaiting the hearing for asylum that prison officials offered the men a chance to make money to cover basic necessities like phone calls, food and toiletries while in detention.

The men were sometimes paid around $0.50 an hour or $15 a week regardless of the number of hours they worked in violation of state and federal wage laws, the lawsuit said.

“They had no way of knowing if that was unlawful or not until they consulted a lawyer,” Sellers said. “They were doing real work like the rest of us work. They are entitled to be paid overtime. They are entitled to be paid the prevailing wage. They were paid far below it.”

The Nashville, Tennessee-based CoreCivic did not immediately return an email from The Associated Press.

Sellers said the men were not facing criminal charges and are now U.S. residents living in Maryland and Ohio. The men are seeking an unspecified amount in back pay and damages.

Attorneys said they believe as many as 1,000 other immigrants held at the Cibola County Correctional Center might have worked for similarly low wages and could be entitled to relief.

Last year, a federal judge ruled that Washington state could pursue its lawsuit seeking to force GEO Group — one of the nation’s largest privately run immigration detention centers — to pay minimum wage for work done by detainees.

The for-profit company runs the Northwest Detention Center, a 1,575-bed facility in Tacoma, Washington, where detainees are held pending deportation proceedings.

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Thursday, November 8, 2018

Rookaird v. BNSF Railway Company

An employer can be held liable under the Federal Railroad Safety Act for retaliating against a worker for refusing to engage in an action when he had an objectively reasonable belief that the act would violate a railroad safety rule or regulation.

Rookaird v. BNSF Railway Company - filed Nov. 8, 2018
Cite as 2018 S.O.S. 16-35786

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Manavian v. Dept. of Justice

A career executive assignment (CEA) is “an appointment to a high administrative and policy influencing position within the state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to top-level administrative authority.  Such a position can be established only in the top managerial levels of state service and is typified by broad responsibility for policy implementation and extensive participation in policy evolvement.  Assignment by appointment to such a position does not confer any rights or status in the position other than provided in Article 9 . . . of Chapter 2.5 of Part 2.6.”  (Gov. Code, § 18547.) The rights conferred by article 9 are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.  (§ 19889.2.)

CEA positions are part of the general civil service system, but an employee enjoys no tenure in a CEA.  (Professional Engineers in Cal. Government v. State Personnel Bd. (2001) 90 Cal.App.4th 678, 689, 692 (Professional Engineers).)  The CEA legislation was created to encourage the use and development of well-qualified selected executives.  (Campbell v. State Personnel Bd. (1997) 57 Cal.App.4th 281, 293.)  As a result of the need for flexibility at this level, the appointing authority may terminate a CEA without cause.  (Professional Engineers, at p. 692.)

This case illustrates the need for flexibility in terminating a CEA position.  Plaintiff Edward Manavian held a CEA position as chief of the Criminal Intelligence Bureau (Bureau), part of the Department of Justice (DOJ).  Formed after the September 11 terrorist attacks, the Bureau is a partnership of local and state law enforcement agencies created pursuant to a memorandum of understanding (MOU) between the Governor and Attorney General.  The Bureau’s mission is to facilitate local, state, and federal law enforcement intelligence collection and sharing.  In particular, Manavian’s job description was to cooperate with local, state, and federal law enforcement agencies to prevent terrorism and related criminal activity. 

However, Manavian’s relationships with state and federal decisionmakers were not good.  The director and deputy director of the state Office of Homeland Security were ready to withdraw from the DOJ partnership and refused to work with Manavian.  Richard Oules, Manavian’s superior, decided to terminate Manavian’s CEA position because of his dysfunctional relationship with federal and state representatives and because of Manavian’s hostility toward Oules.

As a chief designated as a peace officer by the Attorney General, Manavian is also entitled to the protections of the Public Safety Officers Procedural Bill of Rights Act (POBRA), section 3300 et seq.  (Pen. Code, § 830.1, subd. (b); § 3301.)  POBRA provides certain protections pertaining to the investigation, interrogation, and administrative appeal of punitive actions.  (§§ 3303, 3304, subd. (b).)  This case is premised on the claim that the termination of Manavian’s CEA position was a punitive action protected by POBRA, despite clear language to the contrary in section 19889.2.
Manavian also claims that certain actions he took in liaising with other state and federal homeland security representatives, then reporting potentially illegal policy proposals, were protected by the California whistleblower statutes.            

We shall conclude that POBRA protections were not triggered by the termination of Manavian’s CEA position, and that he is not protected as a whistleblower.

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BNSF Railway Company v. Loos

Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

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Guerrero v. Cal. Dept. of Corrections and Rehabilitation

Victor Guerrero, a Mexican immigrant and aspiring California correctional officer, filed a federal action alleging discriminatory failure-to-hire against the California Department of Corrections and Rehabilitation (the CDCR), among other defendants.  He pled federal and state law claims, but only his state claims allowed him to seek general damages. 

The federal court dismissed Guerrero’s state claims on Eleventh Amendment grounds, effectively limiting his potential money recovery to the equitable remedy of backpay.  To recoup damages, Guerrero filed this action in superior court.  After final judgment was entered in the federal action—in Guerrero’s favor—the superior court dismissed his state claims under California claim preclusion principles.

On appeal, Guerrero now argues that federal law, not California law, governs the preclusive effect of the federal judgment.  Under federal law, Guerrero contends, there is a well-recognized exception to claim preclusion rules where jurisdictional limitations in a prior suit blocked the plaintiff’s request for complete relief, as was the case here.  We agree and shall reverse.  

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Tuesday, November 6, 2018

Mount Lemmon Fire Dist. v. Guido

John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b). 

Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previous, 1972, amendment to Title VII added States and their subdivisions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amendment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By contrast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment also amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x).

Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation.

The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivisions with agents, a discrete category that carries no numerical limitation.

Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the number of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold.

Pp. 4–6. 859 F. 3d 1168, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.

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Monday, November 5, 2018

Ramos v. Superior Court

An arbitration provision in an employment agreement was procedurally and substantively unconscionable as applied to the worker’s claims to vindicate her statutory rights and for wrongful termination. If a worker’s claims have their “roots in the relationship” created by the agreement that required arbitration of claims “arising under or related to” the agreement, then the claims fall within the scope of the agreement. The law remains that mandatory employment contracts that require employees to waive their rights to bring statutory discrimination claims under the Fair Employment and Housing Act and related claims for wrongful termination in violation of public policy are unlawful.

Ramos v. Superior Court (Winston & Strawn) - filed Nov. 2, 2018, First District, Div. One 
Cite as 2018 S.O.S. 5302 

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Quiles v. Parent

In this latest chapter in what originated as a wage and hour class action, defendant Arthur J. Parent, Jr. (Parent) appeals from the amended judgment entered in favor of plaintiff Amanda Quiles on her individual claim for wrongful employment termination in violation of the federal Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. § 201 et seq.).  (All further statutory references are to title 29 of the United States Code unless otherwise specified.)  In addition to the damages awarded by the jury, the amended judgment awarded Quiles $689,310.04 in attorney fees and $50,591.69 in costs of litigation. 

Parent challenges the attorney fees and costs awards of the amended judgment only, arguing the trial court erred by awarding costs that were not statutorily authorized and by awarding attorney fees and costs that were jointly incurred by Quiles with her coplaintiffs for whom litigation remains pending.  He also argues the trial court otherwise abused its discretion by awarding attorney fees and costs that were unrelated and unnecessary to Quiles’s successful FLSA claim. 

We affirm.  We hold, in this case of first impression, that federal law applies to the determination of what type of costs are recoverable by a prevailing party in an FLSA action filed in state court.  Section 216(b) provides that any employer who wrongfully terminates the employment of an employee in retaliation for filing an FLSA action shall be liable for legal or equitable relief and shall pay the employee’s reasonable attorney fees and costs of the action.  Federal courts have construed section 216(b) to authorize awarding a prevailing employee a broad measure of costs, which include copying, postage, and mediation expenses. 

We reject Parent’s argument that the trial court erred by awarding Quiles mediation costs because the parties had contractually agreed to mediate the matter and divide the costs between them.  The record shows that the parties agreed to each pay the mediation services provider half the costs of mediation, but Parent did not go through with any agreement to mediate, having failed to personally appear at the mediation or otherwise be available to participate in the mediation.  Parent forfeited his argument that the trial court awarded expert witness fees that were unauthorized by the FLSA.  He failed to raise that argument in the trial court which resulted in the issue not having been fully briefed and in depriving the trial court the opportunity to make that determination in the first instance.

We also reject Parent’s claim that the trial court erred by awarding Quiles costs she jointly incurred with other plaintiffs who continue to litigate their claims.  The trial court painstakingly reviewed the lengthy record regarding Quiles’s requests for attorney fees and costs and awarded her what the court determined she reasonably incurred on her own behalf and in relation to her successful claim.  Contrary to Parent’s argument, the trial court did not err by awarding Quiles attorney fees and costs she incurred in connection with the trial as to the joint employer issue.  Having proven Parent’s status as her joint employer enabled Quiles to avail herself of the opportunity to pursue damages, penalties, attorney fees and costs against Parent for violating the FLSA by wrongfully terminating Quiles’s employment.

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Ramos v. Super. Ct.

Constance Ramos, an experienced litigator and patent practitioner with a doctorate in biophysics, was hired as an “Income Partner” at the law firm Winston & Strawn, LLP (Winston).  After allegedly being denied recognition for her work, excluded from opportunities for career advancement, evaluated based on the success of her male colleagues, and denied compensation and bonuses to which she was entitled, Ramos sued Winston, asserting various causes of action under state law for discrimination, retaliation, wrongful termination, and anti-fair-pay practices. 

Winston moved to compel arbitration pursuant to the partnership agreement Ramos signed shortly after joining the firm.  In opposing the motion, Ramos argued she was an “employee” of Winston, not a partner, and therefore Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz) applied to the arbitration agreement.  Ramos further argued the arbitration provision in the partnership agreement failed to meet the minimum requirements set forth in Armendariz for arbitration of unwaivable statutory claims.  The trial court disagreed, finding Ramos was “in a partnership relationship” for purposes of the motion to compel.  The trial court severed provisions of the arbitration agreement related to venue and cost-sharing, and granted Winston’s motion.  Ramos sought a writ of mandate, and we granted review.            

We conclude the trial court erred in compelling Ramos to submit her claims to arbitration.  Under the framework set forth by our Supreme Court in Armendariz, we find the parties’ arbitration agreement is unconscionable.  Further, because we cannot remove the taint of illegality by severing the unlawful provisions without altering the nature of the parties’ agreement, we must void the entire agreement to arbitrate.  Accordingly, we reverse and remand for Ramos to proceed with her claims in superior court.

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Friday, November 2, 2018

AMN Healthcare, Inc. v. Aya Healthcare Services, Inc.

Plaintiff AMN Healthcare, Inc. (AMN) appeals (1) the judgment in favor of defendants Kylie Stein, Robin Wallace, Katherine Hernandez, Alexis Ogilvie (sometimes collectively, individual defendants) and Aya Healthcare, Inc. (Aya) (sometimes individual defendants and Aya are collectively referred to as defendants); (2) the injunction preventing AMN from enforcing its nonsolicitation of employee provision against individual defendants and its other former employees; and (3) the award of attorney fees in favor of defendants. 

AMN and Aya are competitors in the business of providing on a temporary basis healthcare professionals, in particular "travel nurses," to medical care facilities throughout the country.  Individual defendants were former "travel nurse recruiters" of AMN who, for different reasons and at different times, left AMN and joined Aya, where they also worked as travel nurse recruiters. 

As a condition of employment with AMN, individual defendants each signed a Confidentiality and Non-Disclosure Agreement (CNDA), which, as discussed post, included a provision preventing individual defendants from soliciting any employee of AMN to leave the service of AMN for at least a one-year period.  Significant in the instant case, a travel nurse was deemed to be an employee of AMN while on temporary assignment through AMN.            

AMN sued defendants, asserting various causes of action including breach of contract and misappropriation of confidential information, including trade secrets as set forth in the Uniform Trade Secrets Act, Civil Code sections 3426 et seq. (UTSA).  Defendants filed a cross-complaint for declaratory relief and unfair business competition.

Defendants moved for summary judgment of AMN's operative complaint and of their own cross-complaint.  Defendants claimed that the nonsolicitation of employee provision in the CNDA was an improper restraint on individual defendants' ability to engage in their profession, in violation of Business and Professions Code section 16600; that as such, AMN's contract-based causes of action failed as a matter of law; and that AMN's tort-based causes of action also failed as a matter of law because the information allegedly used by defendants to recruit travel nurses was not protected. 

The trial court agreed with defendants, granted summary judgment against AMN, and granted summary adjudication of defendants' declaratory relief cause of action in their cross-complaint.  After granting such relief, the court subsequently enjoined AMN from enforcing the nonsolicitation of employee provision in the CNDA as to any former (California) AMN employee and awarded defendants attorney fees.           

As we explain, we independently conclude the court properly granted summary judgment of AMN's operative complaint and of defendants' declaratory relief cause of action in their cross-complaint.  We further conclude the court properly exercised its discretion when it enjoined AMN from attempting to enforce its nonsolicitation of employee provision with respect to its former employees, including individual defendants, and when it awarded defendants their reasonable attorney fees.

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Sali v. Corona Regional Med. Ctr.

The panel filed an order denying a petition for panel rehearing and a petition for rehearing en banc, in a case in which the panel reversed the district court’s denial of class certification in a putative class action.

Judge Bea, joined by Judges Bybee, Callahan, Ikuta, and Bennett, dissented from the denial of rehearing en banc because he would hold that the panel erred in concluding that expert opinion testimony need not be admissible evidence in order to be considered at the class certification stage. Judge Bea wrote that the panel’s decision goes against the court’s own binding precedent, the law of four other circuits, and the Supreme Court’s clear guidance on the issue.

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Nunies v. HIE Holdings, Inc.

The Americans with Disabilities Act Amendments Act expanded the scope of the Americans with Disabilities Act's "regarded-as" definition of disability. Prior to the ADAAA, to sustain a regarded-as claim, the plaintiff had to provide evidence that the employer subjectively believed the plaintiff was substantially limited in a major life activity, but under the ADAAA the plaintiff must show that he has been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Nunies v. HIE Holdings, Inc. - filed Nov. 1, 2018 
Cite as 2018 S.O.S. 16-16494 

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Thursday, November 1, 2018

Brown v. Ralphs Grocery Company

A plaintiff bringing a wage and hour claim under the Private Attorneys General Act must state facts and theories supporting the alleged violations not implied by reference to the Labor Code and give the employer sufficient information to assess the seriousness of the alleged violations. However, a bare allegation of a violation of an employer's duty to maintain accurate and complete wage statements is itself sufficient. A plaintiff does not need to specify Labor Code Sec. 558 in her PAGA notice and can proceed with a claim for remedies under that section so long as she gave adequate notice of a violation for which Sec. 558 provides a remedy.

Brown v. Ralphs Grocery Company - filed Oct. 31, 2018, Second District, Div. Five 
Cite as 2018 S.O.S. 5223 

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Tuesday, October 2, 2018

Mount Lemmon Fire District v. Guido Oral Argument Transcript

Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.

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Monday, October 1, 2018

Payton v. CSI Electrical Contractors

Trial court did not abuse its discretion in finding that the named plaintiff Payton was not an appropriate class representative based on his criminal record denying leave to substitute another representative in light of the age of the case and the futility of doing so.

Payton v. CSI Electrical Contractors - filed Sept. 28, 2018, Second District, Div. Two
Cite as 2018 S.O.S. 4792

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Atempa v. Pedrazzani

Civil penalties may be assessed for violation of specified overtime pay and minimum wage laws from a person other than the corporate employer that failed to pay the proper wages, where there is no allegation or contention that the alter ego doctrine applies or that there is any other basis on which to pierce the veil of the corporate employer.

Atempa v. Pedrazzani - filed Sept. 28, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 4783

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Thursday, September 27, 2018

San Francisco Police Officers' Association v. San Francisco Police Commission

A trial court properly made a determination of arbitrability for a union grievance asserting the city had failed to negotiate in good faith before implementing revisions to its use of force policy where the memorandum of understanding between a city and police union specified that arbitrability was to be determined by a court when a grievance is filed regarding actions the city has reasonably found to be necessary to ensure compliance with state law. The trial court properly concluded that the dispute was not arbitrable since the city's power to regulate the use of force by its police officers is a constitutional right which the city cannot suspend, bargain or contract away.

San Francisco Police Officers' Association v. San Francisco Police Commission - filed Sept. 26, 2018, First District, Div. Two
Cite as 2018 S.O.S. 4759

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Monday, September 24, 2018

Ayon v. Esquire Deposition Solutions

A plaintiff did not create a disputed issue of material fact about an employer's liability under a theory of respondeat superior by simply challenging the defense witnesses' credibility.

Ayon v. Esquire Deposition Solutions - filed Sept. 21, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 4679

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Moss Brothers Toy, Inc. v. Ruiz

A complaint against a defendant for an alleged breach of an arbitration agreement was based on a protected action where the alleged breach was the defendant's act of filing a lawsuit instead of pursuing arbitration for his employment-related claims. Were it not for the defendant's act of filing suit, the plaintiff would have no factual basis for its claims.

Moss Brothers Toy, Inc. v. Ruiz - filed Sept. 20, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 4617

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Monday, September 17, 2018

Nunies v. HIE Holdings, Inc.

The Americans with Disabilities Act Amendments Act expanded the scope of the Americans with Disabilities Act's "regarded-as" definition of disability. Prior to the ADAAA, to sustain a regarded-as claim, the plaintiff had to provide evidence that the employer subjectively believed the plaintiff was substantially limited in a major life activity, but under the ADAAA the plaintiff must show that he has been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Nunies v. HIE Holdings, Inc. - filed Sept. 17, 2018
Cite as 2018 S.O.S. 16-16494

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Friday, September 14, 2018

Campbell v. City of Los Angeles

A group of workers can appeal a class decertification order even though they were dismissed from the collective action before final judgment and without prejudice to their individual Fair Labor Standards Act claims since an order of decertification and dismissal disposes of their statutory right to proceed collectively. A group of police officers were not "similarly situated" where they failed to create a triable question about the existence of a department-wide policy or practice discouraging the reporting of overtime.

Campbell v. City of Los Angeles - filed Sept. 13, 2018
Cite as 2018 S.O.S. 15-56990

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Friday, September 7, 2018

Equal Employment Opportunity Commission v. BNSF Railway Company

The Equal Employment Opportunity Commission satisfied the elements of a 42 U.S.C. Sec. 12112(a) claim by showing an employer had perceived a qualified job applicant as having a disability and that the employer had impermissibly conditioned its offer of employment on the applicant's procurement of a diagnostic test for his perceived disability, at his own expense.

Equal Employment Opportunity Commission v. BNSF Railway Company - filed Aug. 29, 2018
Cite as 2018 S.O.S. 16-35457

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Wednesday, September 5, 2018

Harris v. County of Orange

When a memorandum of understanding is explicit as to the substance of a benefit conferred upon workers, but not the term of the benefits, a party can rely on extrinsic evidence to prove the existence of an implied term requiring the continuation of that benefit in perpetuity. The Age Discrimination in Employment Act applies to retirees. Changes in retirees' health benefits are covered by the FEHA, despite the fact that they are not active employees.

Harris v. County of Orange - filed Sept. 5, 2018
Cite as 2018 S.O.S. 13-56061

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Tuesday, September 4, 2018

Hansen v. Group Health Cooperative

The state law claims brought by mental health providers against an insurance company over the use of screening criteria for mental healthcare coverage did not fall within the scope of the Employee Retirement Income Security Act since their claims for unfair and deceptive business practices were based on independent duties beyond those imposed by their patients' ERISA plans.

Hansen v. Group Health Cooperative - filed Sept. 4, 2018
Cite as 2018 S.O.S. 16-35684

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Board of Trustees of the Glazing Health and Welfare Trust v. Chambers

The enactment of Nevada Senate Bill 223 was a legitimate exercise of Nevada's traditional state authority. SB 223 was not preempted by the Employee Retirement Income Security Act because it did not intrude on any federally-regulated field, conflict with ERISA's objectives, or otherwise impermissibly "relate to" ERISA plans. ERISA empowers ERISA trusts to bring actions against subcontractors for subcontractors' labor debts, but it does not establish a cause of action for collecting debts from non-parties to an ERISA plan. A challenge to the validity of SB 223 was not rendered moot by the repeal of the bill and the enactment of a replacement measure.

Board of Trustees of the Glazing Health and Welfare Trust v. Chambers - filed Sept. 4, 2018
Cite as 2018 S.O.S. 16-15588

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Tuesday, August 21, 2018

Connor v. First Student, Inc.

Connor v. First Student, Inc. (SC S229428 8/20/18) Employer Background Checks/ICRAA and CCRAA

We granted review to resolve a conflict in the Courts of Appeal over whether the Investigative Consumer Reporting Agencies Act (ICRAA) (Civ. Code, § 1786 et seq.) is unconstitutionally vague, in violation of due process, as applied to employer background checks because it overlaps, in part, with the Consumer Credit Reporting Agencies Act (CCRAA) (§ 1785.1 et seq.).  We agree with the Court of Appeal that some overlap between the two statutes does not render ICRAA unconstitutionally vague when the statutes are otherwise unambiguous.  We therefore affirm the Court of Appeal judgment.

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Wednesday, August 15, 2018

Jackpot Harvesting Co. v. Superior Ct.

Jackpot Harvesting Co. v. Superior Ct. (CA6 H044764 8/14/18) Piece Rate/Rest and NP Time

Labor Code section 226.2, which became effective January 1, 2016, addresses the manner in which piece-rate employees are to be compensated for rest and recovery periods and other nonproductive time on the job (collectively, rest/NP time).  Subdivision (b) of the statute (hereafter section 226.2(b)) provides a safe harbor for an employer that, prior to 2016, failed to properly compensate its piece-rate workers for rest/NP time. Under section 226.2(b), an employer that pays its employees for previously unpaid rest/NP time accrued between July 1, 2012 and December 31, 2015, is entitled to assert “an affirmative defense to any claim or cause of action . . . based solely on the employer’s failure to timely pay the employee the compensation due for [rest/NP time] . . . for time periods prior to and including December 31, 2015.”

This lawsuit concerns whether an employer complying with the requirements of section 226.2(b) has a safe harbor against any employee claims for rest/NP time accruing prior to and including December 31, 2015, or has an affirmative defense only to those claims accruing between July 1, 2012 and December 31, 2015.  We will conclude that under the plain and unambiguous language of section 226.2(b), an employer complying with the statute has an affirmative defense against any employee claims for rest/NP time accruing prior to and including December 31, 2015.

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Tuesday, August 14, 2018

Cal. Dept. of Industrial Relations v. AC Transit

(CA1/4 A142799 8/13/18) Non-Air Conditioned Buses.Outdoor Places of Employment

In this appeal, we consider a narrow question of regulatory interpretation:  Can the interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for purposes of the heat illness prevention standards promulgated by the California Occupational Safety and Health Standards Board (Standards Board) as stated in section 3395 of title 8 of the California Code of Regulations (section 3395)?  After the Department of Industrial Relation’s Division of Occupational Safety and Health (Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several violations of section 3395 involving its non-air-conditioned buses, AC Transit sought administrative review, arguing, among other things, that the buses were not “outdoor” places of employment for purposes of the heat illness prevention regulation.  The Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed, affirming the dismissal of the appealed-from violations by one of its administrative law judges (ALJ).  However, after the Division filed a petition for writ of mandate in the trial court disputing this decision, the trial court determined that the Appeals Board’s definition of “outdoor” was too narrow and issued a peremptory writ of mandate instructing the Appeals Board to reconsider the matter using a broader definition of outdoor that could include non-air-conditioned vehicles.  Both AC Transit and the Appeals Board appealed.  We conclude—based upon our independent analysis of the question—that the trial court’s construction of section 3395 is well supported both by the language of the regulation and by its related regulatory history.  We therefore remand the matter for further proceedings consistent with our analysis.

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Friday, August 10, 2018

Clark v. City of Seattle

A group of drivers did not raise a viable challenge to a city ordinance that establishes a multistep collective-bargaining process between "driver-coordinators" and for-hire drivers under Sec. 8(b)(4) or Sec. 8(e) of the National Labor Relations Act because the disclosure of the drivers' information to a labor union was neither a concrete nor a particularized injury.

Clark v. City of Seattle - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-35693

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Tuesday, August 7, 2018

NLRB Announces Opportunity for Voluntary Early Retirement and Separation for Select Agency Positions

Today, the National Labor Relations Board (“NLRB” or “the Agency”) announced that it will offer voluntary early retirement and voluntary separation to employees holding eligible positions in designated locations within the Agency.
The Agency requested and obtained both Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payments (VSIP) authority in order to better manage its caseload and workforce needs. For years, the deficits caused by flat funding of the Agency have been primarily addressed by voluntary personnel attrition. As a result, the NLRB has an imbalance in staffing in both headquarters and the NLRB’s regional offices. To ensure that the Agency is able to carry out its critical mission, the NLRB is utilizing the VERA and VSIP to realign Agency staffing with office caseloads. In addition to addressing the Agency’s current staffing imbalance, utilization of VERA and VSIP will enable the Agency to reallocate its limited resources and to, among other things, provide employees with the tools they need, including training and improvements in technology.
VERA changes the normal retirement eligibility to allow employees to voluntarily retire earlier, with an immediate annuity, with 20 years of service at age 50, or at 25 years of service regardless of age. VSIP provides a financial incentive for employees to voluntarily separate by optional retirement, voluntary early retirement, or resignation. The NLRB is offering both VERA and VSIP opportunities only to employees in targeted job categories. Applying for these opportunities is entirely voluntary and applications from employees in eligible positions will be processed in the order they are received.

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NLRB Administrative Law Judges Validly Appointed

The National Labor Relations Board today rejected a challenge regarding the appointment of its administrative law judges ("ALJs"), concluding that all of the Board’s ALJs have been validly appointed under the Appointments Clause of the United States Constitution.

     On June 21, 2018, the Supreme Court issued its decision in Lucia v. SEC, 585 U.S. ___, 138 S. Ct. 2044 (2018), finding that administrative law judges of the Securities and Exchange Commission (“SEC”) are inferior officers of the United States and thus must be appointed in accordance with the Appointments Clause, i.e., by the President, the courts, or the Head of Department. Id. at 2051. Unlike the SEC’s ALJs, the NLRB’s ALJs are appointed by the full Board as the “Head of Department” and not by other Agency staff members.

     The challenge was raised by WestRock Services, Inc. (“WestRock”) in Case 10-CA-195617 on a motion to dismiss. Chairman John F. Ring was joined by Members Mark Gaston Pearce, Lauren McFerran, Marvin E. Kaplan and William J. Emanuel in the order denying WestRock’s motion.

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Monday, August 6, 2018

Jones v. Sorenson

As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.

Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823

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Lacagnina v. Comprehend Systems, Inc.

An employee who recovers a judgment against an employer for lost compensation has not suffered a theft of labor for which he is entitled to recover treble damages and attorney fees under Penal Code Sec. 496(c).

Lacagnina v. Comprehend Systems, Inc. - filed Aug. 3, 2018, First District, Div. Four
Cite as 2018 S.O.S. 3817

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Friday, August 3, 2018

Honeycutt v. JPMorgan Chase Bank, N.A.

The Code of Civil Procedure and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards) require arbitrators in contractual arbitrations to make various disclosures about themselves, their experience, and their activity as private judges or, as they are sometimes called, “dispute resolution neutrals.”  Failure to make required disclosures may be a ground for disqualifying the arbitrator and, if the arbitrator was actually aware of the ground for disqualification, for vacating an award.

In this case, the arbitrator did not comply with several applicable disclosure requirements, which gave rise to multiple grounds for disqualification.  Because the arbitrator was actually aware of at least one of the grounds for disqualification, the resulting arbitration award was subject to vacatur.  Therefore, we reverse the trial court’s order denying the petition to vacate the award and granting the petition to confirm it.

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Boling v. Public Employment Relations Board

This case arises from unfair practice claims filed by unions after San Diego’s mayor sponsored a citizens’ initiative to eliminate pensions for new municipal employees and rebuffed union demands to meet and confer over the measure.  The Court of Appeal annulled a finding by respondent, the Public Employment Relations Board (PERB), that the failure to meet and confer constituted an unfair labor practice.  We granted review to settle two questions:  (1) When a final decision by PERB under the Meyers-Milias-Brown Act (the MMBA; Gov. Code, § 3500 et seq.) is appealed, what standards of review apply to PERB’s legal interpretations and findings of fact?;  (2) When a public agency itself does not propose a policy change affecting the terms and conditions of employment, but its designated bargaining agent lends official support to a citizens’ initiative to create such a change, is the agency obligated to meet and confer with employee representatives?

These questions are resolved by settled law and the relevant statutory language.  First, we have long held that PERB’s legal findings are entitled to deferential review.  They will not be set aside unless clearly erroneous, though the courts as always retain ultimate authority over questions of statutory interpretation.  The MMBA specifies that PERB’s factual findings are “conclusive” “if supported by substantial evidence.”  (§ 3509.5, subd. (b).)  Second, the duty to meet and confer is a central feature of the MMBA.  Governing bodies “or other representatives as may be properly designated” are required to engage with unions on matters within the scope of representation “prior to arriving at a determination of policy or course of action.”  (§ 3505.)  This broad formulation encompasses more than formal actions taken by the governing body itself.  Under the circumstances here, the MMBA applies to the mayor’s official pursuit of pension reform as a matter of policy.  The Court of Appeal erred, first by reviewing PERB’s interpretation of the governing statutes de novo, and second by taking an unduly constricted view of the duty to meet and confer.

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Wednesday, August 1, 2018

Nishiki v. Danko Meredith, APC

Nishiki v. Danko Meredith, APC (CA1/4 A147733  8/1/18) Wage & Hour/Waiting Time and Attorneys’ Fees

When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours.  (Lab. Code § 202, subd. (a).)  If the employer willfully fails to do so, the employee’s wages continue as a penalty from that due date until the wages are paid, for up to 30 days.  (§ 203.)  This case considers an award of these “waiting time” penalties, as well as an award of attorney fees to the employee for the employer’s unsuccessful appeal.  (§ 98.2.)

Taryn Nishiki, a former employee of defendant Danko Meredith P.C., filed a complaint with the California Labor Commissioner (the commissioner) seeking vacation wages, rest period premiums, and waiting time penalties.  She prevailed on her claim for waiting time penalties, and was awarded $4,250.  Defendant appealed the award to the superior court, which affirmed the commissioner’s award, and awarded Nishiki $86,160 in attorney fees.  On appeal, defendant contends the waiting time penalties are unwarranted and the attorney fee award was excessive.  We shall reduce the waiting time penalties and otherwise affirm the judgment.

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Peredia v. HR Mobile Services, Inc

A safety consultant is liable to an employee of the firm that hired the safety consultant when the employee establishes the elements of a negligent undertaking claim. To establish a negligent undertaking claim, a plaintiff must establish that the consultant undertook to render services to the employer, the services rendered were of a kind the consultant should have recognized as necessary for the protection of the employees of the employer, the consultant to exercise reasonable care in the performance of its undertaking, the failure to exercise reasonable care resulted in physical harm to an employee, and the consultant's carelessness either increased the risk of such harm, or the undertaking was to perform a duty owed by the employer to the employees, or the harm was suffered because of the reliance of the employer the employees upon the undertaking. Acts are "wrongful in their nature" for purposes of Civil Code Sec. 2343 when they constitute an independent tort, such as the tort of negligent undertaking.

Peredia v. HR Mobile Services, Inc - filed July 30, 2018, Fifth District
Cite as 2018 S.O.S. 3736

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Tuesday, July 31, 2018

Estill v. County of Shasta

Estill v. County of Shasta (CA3 C077513 7/31/18) Government Claim/Internal Investigation

Renee Estill submitted a government claim against the County of Shasta and others, specifically representing that she first became aware of the alleged incident [an internal affairs investigation by her employer] on September 9, 2011.  The County accepted Estill’s representation and denied her claim on the merits.  Because it accepted the claim as timely, the County did not warn Estill to seek leave to present a late claim.  This lawsuit followed.
During Estill’s deposition, however, defendants learned she was aware of the alleged wrongdoing as early as 2009.  The trial court granted defendant’s motion for summary judgment primarily on the ground that Estill’s government claim was untimely, but later granted her motion for a new trial, ruling there are triable issues of fact as to whether defendants waived their defense of untimeliness because the County did not warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3, subdivision (b).  Defendants appeal from the order granting Estill a new trial, and Estill cross-appeals from the judgment in favor of defendants.
After oral argument in this case, we asked the parties for supplemental briefing on the application of equitable estoppel in this context.  We conclude that a claimant may be estopped from invoking the section 911.3 waiver provision where a public entity’s failure to notify the claimant that a claim is untimely is induced by the claimant’s representation on the government claim form.  And in this case, based on the entire appellate record, including the supplemental briefs, we conclude Estill is estopped from asserting that defendants waived their defense of untimeliness.  She represented in her government claim that the incident of wrongdoing occurred in September 2009, but that she “first became aware” of the incident on September 9, 2011.  She included an attachment to her government claim in which she could have explained what she had learned in 2009 and 2010 about the alleged misconduct, but she did not mention her prior knowledge.  Thus, the record indicates she intended for the County to rely on her representation in the government claim, and the County did in fact rely on the representation.  Accordingly, we will reverse the trial court’s order granting Estill’s motion for a new trial and affirm the judgment entered in favor of defendants.

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Friday, July 27, 2018

Troester v. Starbucks Corporation

Troester v. Starbucks Corporation (SC S234969 7/26/18) FLSA/De Minimis Doctrine

Upon a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548), we agreed to answer the following question:  Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063, apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?

The de minimis doctrine is an application of the maxim de minimis non curat lex, which means “[t]he law does not concern itself with trifles.”  (Black’s Law Dict. (10th ed. 2014) p. 524.)  Federal courts have applied the doctrine in some circumstances to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.
We approach the question presented in two parts:  First, have California’s wage and hour statutes or regulations adopted the de minimis doctrine found in the federal Fair Labor Standards Act (FLSA)?  We conclude they have not.  There is no indication in the text or history of the relevant statutes and Industrial Welfare Commission (IWC) wage orders of such adoption.

Second, does the de minimis principle, which has operated in California in various contexts, apply to wage and hour claims?  In other words, although California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law?  We hold that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work “off the clock” several minutes per shift.  We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.

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Thursday, July 26, 2018

Windsor Redding Care Center, LLC

Windsor Redding Care Center, LLC  (20-CA-070465, et al.; 366 NLRB No. 127)  Redding CA, July 27, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully refuse to engage in predisciplinary or postdisciplinary bargaining with the Union.  A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) further agreed with the judge that the Respondent did not unlawfully terminate a housekeeping employee; Member McFerran would have found that the Respondent failed to establish that it would have taken the same action absent the employee’s union activity.  Contrary to the judge, the Board unanimously found that the Respondent unlawfully changed its practice of granting merit raises.  A Board majority (Members McFerran and Kaplan; Member Emanuel, dissenting) additionally found that the Respondent unlawfully terminated a restorative nursing assistant; Member Emanuel would have found that the Respondent established that it would have discharged the employee even absent the employee’s union activity.
Charges filed by SEIU United Service Workers-West.  Administrative Law Judge Gregory Z. Meyerson issued his decision on December 31, 2012.  Members McFerran, Kaplan, and Emanuel participated.

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Tuesday, July 24, 2018

Golden v. CEP

Golden v. CEP (9th Cir. 16-17354 7/24/18) Employment Settlement/“Restraint of a Substantial Character”

We are now called on to answer the question that we left open when this case was last before us: whether a provision of a settlement agreement between Dr. Donald Golden and his former employer, the California Emergency Physicians Medical Group (“CEP”), places a “restraint of a substantial character” on Dr. Golden’s medical practice. See Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083, 1093 (9th Cir. 2015) (“Golden I”). We conclude that it does, and that it therefore runs afoul of California law. See Cal. Bus. & Prof. Code § 16600.

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Friday, July 20, 2018

Rodriguez v. Taco Bell

Rodriguez v. Taco Bell (9th Cir. 16-15465 7/18/18) Wage & Hour/Meal Breaks

The panel affirmed the district court’s judgment in favor of Taco Bell Corp. in a putative class action concerning employee meal breaks.

After the district court granted summary judgment to Taco Bell on most of plaintiff’s claims, the court granted plaintiff’s request that the district court dismiss the remaining pending claim. As a threshold jurisdictional issue, the panel held that the dismissal with prejudice created a valid final judgment for purposes of 28 U.S.C. § 1291.

California Wage Order 5-2001 requires employees be relieved of all duty during a requisite meal period. During plaintiff’s period of employment, Taco Bell offered thirty-minute meal breaks that were fully compliant with California’s requirements, but with a special offer that employees could purchase a meal from the restaurant at a discount, provided they ate the meal in the restaurant.

The panel held that California law was not violated because Taco Bell relieved their employees of all duties during the meal break period and exercised no control over their activities, where employees were free to use the thirty minutes in any way they wished, subject only to the restriction that if they purchased a discounted meal, they had to eat in the restaurant. The panel rejected plaintiff’s contention that employees were under sufficient employer control to render the time compensable. The panel also rejected plaintiff’s assertion that the value of the discounted meals be added to the regular rate of pay for overtime purposes.

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Glazing Health & Welfare Fund v. Lamek

Under the Employee Retirement Income Security Act, employers are not fiduciaries as to unpaid contributions to ERISA benefit plans. Parties to an ERISA plan cannot designate unpaid contributions as plan assets.

Glazing Health & Welfare Fund v. Lamek - filed July 19, 2018
Cite as 2018 S.O.S. 16-16155

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Monday, July 16, 2018

Coffman v. Queen of the Valley Medical Center

An employer cannot begin unconditional bargaining and later withdraw recognition and refusing to bargain. The regional director of the National Labor Relations Board demonstrated a sufficient likelihood of success in establishing a withdrawal of recognition and refusal to bargain unconditionally, as well as a continuing threat of irreparable harm to the union's collective bargaining rights, to support the extraordinary remedy of injunctive relief, where the director could show that an employer had considerable dealings with the union following the union's certification, including discussions that resulted in agreements over some hours and working conditions, and that these negotiations took place before the employer made any official challenge to the certification.

Coffman v. Queen of the Valley Medical Center - filed July 16, 2018
Cite as 2018 S.O.S. 17-17413

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Dutta v. State Farm Mutual Automobile Insurance Co.

A plaintiff lacked standing to bring a suit based on a prospective employer's violation of the Fair Credit Reporting Act in failing to provide him with a copy of his consumer credit report and an opportunity to correct any inaccuracies where the plaintiff did not allege any actual harm or a substantial risk of such harm resulting from the violation.

Dutta v. State Farm Mutual Automobile Insurance Co. - filed July 13, 2018
Cite as 2018 S.O.S. 16-17216

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Monday, July 9, 2018

Caldera v. Dept. of Corrections & Rehabilitation

Caldera v. Dept. of Corrections & Rehabilitation (CA4/3 G053168 7/9/18) FEHA Harassment/Severe or Pervasive

Under the Fair Employment and Housing Act (FEHA), an employee with a disability can sue his or her employer and supervisors for disability harassment.  (Gov. Code, § 12940, subd. (j)(1).)  The employee must prove the harassment was either severe or pervasive.  (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.)

Augustine Caldera is a correctional officer at a state prison.  Officer Caldera stutters when he speaks.  The prison’s employees mocked or mimicked Caldera’s stutter at least a dozen times over a period of about two years.  Sergeant James Grove, a supervisor, participated in the mocking and mimicking of Caldera’s stutter.  Such conduct reflected the prison’s culture, according to a senior prison official.

Caldera sued the California Department of Corrections and Rehabilitation (CDCR) and Grove (collectively defendants) for disability harassment, failure to prevent the harassment, and related claims.  A jury found the harassment to be both severe and pervasive and awarded Caldera $500,000 in noneconomic damages.  The trial court found the damage award to be excessive and granted defendants’ motion for a new trial solely as to that issue.  Defendants appeal and Caldera cross-appeals.

Defendants claim there is insufficient evidence the harassment was either severe or pervasive.  We disagree.  There is substantial evidence to support the jury’s factual findings.  Defendants also claim the trial court committed two instructional and one evidentiary error.  We find no prejudicial instructional errors and the claimed evidentiary error has been forfeited.

Caldera claims the trial court failed to file a timely statement of reasons after granting defendants’ motion for a new trial.  We agree.  The court’s new trial order as to the damage award is reversed.  In all other respects, the judgment is affirmed.

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Friday, July 6, 2018

Juarez v. Wash Depot Holdings

An employee's right to bring a claim under the California Private Attorneys General Act cannot be waived. A trial court did not abuse its discretion by declining to sever a PAGA waiver and enforce the remaining arbitration agreement which was printed in both English and Spanish and only the English-language version of the agreement contained a severability clause.

Juarez v. Wash Depot Holdings - filed July 3, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 3389

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Thursday, June 28, 2018

Daugherty v. City & Co. of SF

Daugherty v. City & Co. of SF (CA1/3 A145863, filed 5/30/18, pub. ord. 6/22/18) the Public Safety Officers Procedural Bill of Rights Act

Under the Public Safety Officers Procedural Bill of Rights Act (POBRA) (Gov. Code, § 3300 et seq.), no punitive action may be taken against a public safety officer for any alleged act, omission, or other misconduct unless the investigation is completed within one year of “the public agency’s discovery by a person authorized to initiate an investigation of the allegation of an act, omission, or other misconduct,” subject to certain statutory exceptions.  (§ 3304, subd. (d)(1).)  One such exception provides that the one-year time period is tolled while the act, omission, or other alleged misconduct is also the “subject” of a pending criminal investigation or prosecution.  (Id., subd. (d)(2)(A).)

This case arises out of a criminal corruption investigation of officers in the San Francisco Police Department (SFPD).  The investigation began in 2011 and was led by the United States Attorney’s Office (USAO), with the assistance of select members of the criminal unit of SFPD’s Internal Affairs Division (IAD-Crim).  During the course of the investigation, search warrants of the cellphone records of former SFPD Sergeant Ian Furminger—the central figure in the corruption scheme—led to the discovery in about December 2012 of racist, sexist, homophobic, and anti-Semitic text messages between Furminger and nine SFPD officers.

The criminal case proceeded to trial and resulted in a verdict against Furminger and a codefendant for conspiracy to commit theft, conspiracy against civil rights and wire fraud.  Three days after the verdict, on December 8, 2014, the text messages were released by the USAO to the administrative unit of SFPD’s Internal Affairs Division (IAD-Admin).  After IAD-Admin completed its investigation of the text messages, the chief of police issued disciplinary charges against respondents in April 2015.

While the disciplinary proceedings were pending, respondent Rain O. Daugherty went to court and filed a petition for writ of mandate and complaint for extraordinary relief, seeking to rescind the disciplinary charges on the grounds that they were untimely.  The remaining respondents joined in Daugherty’s petition.  The trial court granted the writ petition and complaint, finding the one-year statute of limitations began to accrue in December 2012 when the misconduct was discovered, and thus, the investigation of respondents’ misconduct was not completed in a timely manner.

For the reasons discussed below, we conclude the one-year statute of limitations did not begin to run until the text messages were released by the USAO to IAD-Admin, because before then, the alleged misconduct was not and could not be discovered by the “person[s] authorized to initiate an investigation” for purposes of section 3304, subdivision (d)(1).  We alternatively conclude the one-year statute of limitations was tolled until the verdict in the criminal corruption case because the text messages were the “subject” of the criminal investigation within the meaning of section 3304, subdivision (d)(2)(A).  Thus, the April 2015 notices of discipline were timely.  Because the trial court’s contrary conclusions were based on errors of law or were not supported by substantial evidence, we reverse.

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AHMC Healthcare, Inc. v. Superior Court

AHMC Healthcare, Inc. v. Superior Court (CA2/4 B285655 6/25/18) Wage & Hour/Rounding Time

State law requires employers to pay their employees for all time the employees are at work and subject to the employers’ control.  (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 839.)  The issue in this case is whether an employer’s use of a payroll system that automatically rounds employee time up or down to the nearest quarter hour, and thus provides a less than exact measure of employee work time, violates California law.  In the underlying matter, both employers and employees moved for summary adjudication on the issue, and the trial court denied both motions.  Petitioners AHMC Healthcare, Inc., AHMC, Inc., AHMC Anaheim Regional Medical Center, L.P. (Anaheim), and AHMC San Gabriel Valley Medical Center, L.P. (San Gabriel) sought a writ of mandate directing the trial court to grant its motion, contending they had established as a matter of undisputed fact that their system was neutral on its face and as applied.  We agree the undisputed facts established that petitioners’ system was in compliance with California law.  Accordingly, we grant the writ.

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Wednesday, June 27, 2018

Janus v. AFSCME

Janus v. AFSCME (US 16–1466 6/27/18) Public Sector Employee Agency Fees/First Amendment

Illinois law permits public employees to unionize. If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees, even those who do not join. Only the union may engage in collective bargaining; individual employees may not be represented by another agent or negotiate directly with their employer. Nonmembers are required to pay what is generally called an “agency fee,” i.e., a percentage of the full union dues. Under Abood v. Detroit Bd. of Ed., 431 U. S. 209, 235–236, this fee may cover union expenditures attributable to those activities “germane” to the union’s collective bargaining activities (chargeable expenditures), but may not cover the union’s political and ideological projects (nonchargeable expenditures). The union sets the agency fee annually and then sends nonmembers a notice explaining the basis for the fee and the breakdown of expenditures. Here it was 78.06% of full union dues. Petitioner Mark Janus is a state employee whose unit is represented by a public-sector union (Union), one of the respondents. He refused to join the Union because he opposes many of its positions, including those taken in collective bargaining. Illinois’ Governor, similarly opposed to many of these positions, filed suit challenging the constitutionality of the state law authorizing agency fees. The state attorney general, another respondent, intervened to defend the law, while Janus moved to intervene on the Governor’s side. The District Court dismissed the Governor’s challenge for lack of standing, but it simultaneously allowed Janus to file his own complaint challenging the constitutionality of agency fees.

The District Court granted respondents’ motion to dismiss on the ground that the claim was foreclosed by Abood. The Seventh Circuit affirmed.


1. The District Court had jurisdiction over petitioner’s suit. Petitioner was undisputedly injured in fact by Illinois’ agency-fee scheme and his injuries can be redressed by a favorable court decision. For jurisdictional purposes, the court permissibly treated his amended complaint in intervention as the operative complaint in a new lawsuit. United States ex rel. Texas Portland Cement Co. v. McCord, 233 U. S. 157, distinguished. Pp. 6–7.

2. The State’s extraction of agency fees from nonconsenting public sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled. Pp. 7–47.

(a) Abood’s holding is inconsistent with standard First Amendment principles. Pp. 7–18.

(1) Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers. E.g., Knox v. Service Employees, 567 U. S. 298, 309. In Knox and Harris v. Quinn, 573 U. S. ___, the Court applied an “exacting” scrutiny standard in judging the constitutionality of agency fees rather than the more traditional strict scrutiny. Even under the more permissive standard, Illinois’ scheme cannot survive. Pp. 7–11.

(2) Neither of Abood’s two justifications for agency fees passes muster under this standard. First, agency fees cannot be upheld on the ground that they promote an interest in “labor peace.” The Abood Court’s fears of conflict and disruption if employees were represented by more than one union have proved to be unfounded: Exclusive representation of all the employees in a unit and the exaction of agency fees are not inextricably linked. To the contrary, in the Federal Government and the 28 States with laws prohibiting agency fees, millions of public employees are represented by unions that effectively serve as the exclusive representatives of all the employees. Whatever may have been the case 41 years ago when Abood was decided, it is thus now undeniable that “labor peace” can readily be achieved through less restrictive means than the assessment of agency fees.

Second, avoiding “the risk of ‘free riders,’ ” Abood, supra, at 224, is not a compelling state interest. Free-rider “arguments . . . are generally insufficient to overcome First Amendment objections,” Knox, supra, at 311, and the statutory requirement that unions represent members and nonmembers alike does not justify different treatment. As is evident in non-agency-fee jurisdictions, unions are quite willing to represent nonmembers in the absence of agency fees. And their duty of fair representation is a necessary concomitant of the authority that a union seeks when it chooses to be the exclusive representative. In any event, States can avoid free riders through less restrictive means than the imposition of agency fees. Pp. 11–18.

(b) Respondents’ alternative justifications for Abood are similarly unavailing. Pp. 18–26.

(1) The Union claims that Abood is supported by the First Amendment’s original meaning. But neither founding-era evidence nor dictum in Connick v. Myers, 461 U. S. 138, 143, supports the view that the First Amendment was originally understood to allow States to force public employees to subsidize a private third party. If anything, the opposite is true. Pp. 18–22.

(2) Nor does Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, provide a basis for Abood. Abood was not based on Pickering, and for good reasons. First, Pickering’s framework was developed for use in cases involving “one employee’s speech and its impact on that employee’s public responsibilities,” United States v. Treasury Employees, 513 U. S. 454, 467, while Abood and other agency-fee cases involve a blanket requirement that all employees subsidize private speech with which they may not agree. Second, Pickering’s framework was designed to determine whether a public employee’s speech interferes with the effective operation of a government office, not what happens when the government compels speech or speech subsidies in support of third parties. Third, the categorization schemes of Pickering and Abood do not line up. For example, under Abood, nonmembers cannot be charged for speech that concerns political or ideological issues; but under Pickering, an employee’s free speech interests on such issues could be overcome if outweighed by the employer’s interests. Pp. 22–26.

(c) Even under some form of Pickering, Illinois’ agency-fee arrangement would not survive. Pp. 26–33.

(1) Respondents compare union speech in collective bargaining and grievance proceedings to speech “pursuant to [an employee’s] official duties,” Garcetti v. Ceballos, 547 U. S. 410, 421, which the State may require of its employees. But in those situations, the employee’s words are really the words of the employer, whereas here the union is speaking on behalf of the employees. Garcetti therefore does not apply. Pp. 26–27.

(2) Nor does the union speech at issue cover only matters of private concern, which the State may also generally regulate under Pickering. To the contrary, union speech covers critically important and public matters such as the State’s budget crisis, taxes, and collective bargaining issues related to education, child welfare, healthcare, and minority rights. Pp. 27–31.

(3) The government’s proffered interests must therefore justify the heavy burden of agency fees on nonmembers’ First Amendment interests. They do not. The state interests asserted in Abood— promoting “labor peace” and avoiding free riders—clearly do not, as explained earlier. And the new interests asserted in Harris and here—bargaining with an adequately funded agent and improving the efficiency of the work force—do not suffice either. Experience shows that unions can be effective even without agency fees. Pp. 31– 33.

(d) Stare decisis does not require retention of Abood. An analysis of several important factors that should be taken into account in deciding whether to overrule a past decision supports this conclusion. Pp. 33–47.

(1) Abood was poorly reasoned, and those arguing for retaining it have recast its reasoning, which further undermines its stare decisis effect, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. 310, 363. Abood relied on Railway Employes v. Hanson, 351 U. S. 225, and Machinists v. Street, 367 U. S. 740, both of which involved private-sector collective-bargaining agreements where the government merely authorized agency fees. Abood did not appreciate the very different First Amendment question that arises when a State requires its employees to pay agency fees. Abood also judged the constitutionality of public-sector agency fees using Hanson’s deferential standard, which is inappropriate in deciding free speech issues. Nor did Abood take into account the difference between the effects of agency fees in public- and private-sector collective bargaining, anticipate administrative problems with classifying union expenses as chargeable or nonchargeable, foresee practical problems faced by nonmembers wishing to challenge those decisions, or understand the inherently political nature of public-sector bargaining. Pp. 35–38.

(2) Abood’s lack of workability also weighs against it. Its line between chargeable and nonchargeable expenditures has proved to be impossible to draw with precision, as even respondents recognize. See, e.g., Lehnert v. Ferris Faculty Assn., 500 U. S. 507, 519. What is more, a nonmember objecting to union chargeability determinations will have much trouble determining the accuracy of the union’s reported expenditures, which are often expressed in extremely broad and vague terms. Pp. 38–41.

(3) Developments since Abood, both factual and legal, have “eroded” the decision’s “underpinnings” and left it an outlier among the Court’s First Amendment cases. United States v. Gaudin, 515 U. S. 506, 521. Abood relied on an assumption that “the principle of exclusive representation in the public sector is dependent on a union or agency shop,” Harris, 573 U. S., at ___–___, but experience has shown otherwise. It was also decided when public-sector unionism was a relatively new phenomenon. Today, however, public-sector union membership has surpassed that in the private sector, and that ascendency corresponds with a parallel increase in public spending. Abood is also an anomaly in the Court’s First Amendment jurisprudence, where exacting scrutiny, if not a more demanding standard, generally applies. Overruling Abood will also end the oddity of allowing public employers to compel union support (which is not supported by any tradition) but not to compel party support (which is supported by tradition), see, e.g., Elrod v. Burns, 427 U. S. 347. Pp. 42–44.

(4) Reliance on Abood does not carry decisive weight. The uncertain status of Abood, known to unions for years; the lack of clarity it provides; the short-term nature of collective-bargaining agreements; and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain undermine the force of reliance. Pp. 44–47.

3. For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. The First Amendment is violated when money is taken from nonconsenting employees for a public-sector union; employees must choose to support the union before anything is taken from them. Accordingly, neither an agency fee nor any other form of payment to a public-sector union may be deducted from an employee, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. Pp. 48–49.

851 F. 3d 746, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and, GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion. KAGAN, J., filed a dissenting opinion, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined.

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