Thursday, May 24, 2018

Huff v. Securitas Security Services USA, Inc.

Huff v. Securitas Security Services USA, Inc. (CA6  H042852 5/23/18) PAGA/Pursuit of Representative and Individual Penalties

This case presents the question of whether a plaintiff who brings a representative action under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698, et seq.) may seek penalties not only for the Labor Code violation that affected him or her, but also for different violations that affected other employees.  The trial court granted plaintiff Forrest Huff a new trial, reasoning that Huff’s failure to prove he was personally affected by one of the multiple Labor Code violations alleged in his complaint did not preclude his action under PAGA.  As we will explain, we conclude that PAGA allows an “aggrieved employee” ––a person affected by at least one Labor Code violation committed by an employer––to pursue penalties for all the Labor Code violations committed by that employer.  We will therefore affirm the order granting a new trial.

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Tuesday, May 22, 2018

Epic Systems Corp. v. Lewis

Epic Systems Corp. v. Lewis (US 16-285 5/21/18) Arbitration

In each of these cases, an employer and employee entered into a contract providing for individualized arbitration proceedings to resolve employment disputes between the parties. Each employee nonetheless sought to litigate Fair Labor Standards Act and related state law claims through class or collective actions in federal court. Although the Federal Arbitration Act generally requires courts to enforce arbitration agreements as written, the employees argued that its “saving clause” removes this obligation if an arbitration agreement violates some other federal law and that, by requiring individualized proceedings, the agreements here violated the National Labor Relations Act. The employers countered that the Arbitration Act protects agreements requiring arbitration from judicial interference and that neither the saving clause nor the NLRA demands a different conclusion. Until recently, courts as well as the National Labor Relations Board’s general counsel agreed that such arbitration agreements are enforceable. In 2012, however, the Board ruled that the NLRA effectively nullifies the Arbitration Act in cases like these, and since then other courts have either agreed with or deferred to the Board’s position.

Held: Congress has instructed in the Arbitration Act that arbitration agreements providing for individualized proceedings must be enforced, and neither the Arbitration Act’s saving clause nor the NLRA suggests otherwise. Pp. 5–25.

(a) The Arbitration Act requires courts to enforce agreements to arbitrate, including the terms of arbitration the parties select. See 9 U. S. C. §§2, 3, 4. These emphatic directions would seem to resolve any argument here. The Act’s saving clause—which allows courts to refuse to enforce arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract,” §2—recognizes only “ ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’ ” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 339, not defenses targeting arbitration either by name or by more subtle methods, such as by “interfer[ing] with fundamental attributes of arbitration,” id., at 344. By challenging the agreements precisely because they require individualized arbitration instead of class or collective proceedings, the employees seek to interfere with one of these fundamental attributes. Pp. 5–9. (b)

(b) The employees also mistakenly claim that, even if the Arbitration Act normally requires enforcement of arbitration agreements like theirs, the NLRA overrides that guidance and renders their agreements unlawful yet. When confronted with two Acts allegedly touching on the same topic, this Court must strive “to give effect to both.” Morton v. Mancari, 417 U. S. 535, 551. To prevail, the employees must show a “ ‘clear and manifest’ ” congressional intention to displace one Act with another. Ibid. There is a “stron[g] presum[ption]” that disfavors repeals by implication and that “Congress will specifically address” preexisting law before suspending the law’s normal operations in a later statute. United States v. Fausto, 484 U. S. 439, 452, 453.

The employees ask the Court to infer that class and collective actions are “concerted activities” protected by §7 of the NLRA, which guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U. S. C. §157. But §7 focuses on the right to organize unions and bargain collectively. It does not mention class or collective action procedures or even hint at a clear and manifest wish to displace the Arbitration Act. It is unlikely that Congress wished to confer a right to class or collective actions in §7, since those procedures were hardly known when the NLRA was adopted in 1935. Because the catchall term “other concerted activities for the purpose of . . . other mutual aid or protection” appears at the end of a detailed list of activities, it should be understood to protect the same kind of things, i.e., things employees do for themselves in the course of exercising their right to free association in the workplace.

The NLRA’s structure points to the same conclusion. After speaking of various “concerted activities” in §7, the statute establishes a detailed regulatory regime applicable to each item on the list, but gives no hint about what rules should govern the adjudication of class or collective actions in court or arbitration. Nor is it at all obvious what rules should govern on such essential issues as opt-out and opt-in procedures, notice to class members, and class certification standards. Telling too is the fact that Congress has shown that it knows exactly how to specify certain dispute resolution procedures, cf., e.g., 29 U. S. C. §§216(b), 626, or to override the Arbitration Act, see, e.g., 15 U. S. C. §1226(a)(2), but Congress has done nothing like that in the NLRA.

The employees suggest that the NLRA does not discuss class and collective action procedures because it means to confer a right to use existing procedures provided by statute or rule, but the NLRA does not say even that much. And if employees do take existing rules as they find them, they must take them subject to those rules’ inherent limitations, including the principle that parties may depart from them in favor of individualized arbitration.

In another contextual clue, the employees’ underlying causes of action arise not under the NLRA but under the Fair Labor Standards Act, which permits the sort of collective action the employees wish to pursue here. Yet they do not suggest that the FLSA displaces the Arbitration Act, presumably because the Court has held that an identical collective action scheme does not prohibit individualized arbitration proceedings, see Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 32. The employees’ theory also runs afoul of the rule that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions,” Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 468, as it would allow a catchall term in the NLRA to dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings—matters that are usually left to, e.g., the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA. Nor does the employees’ invocation of the Norris-LaGuardia Act, a predecessor of the NLRA, help their argument. That statute declares unenforceable contracts in conflict with its policy of protecting workers’ “concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U. S. C. §102, and just as under the NLRA, that policy does not conflict with Congress’s directions favoring arbitration.

Precedent confirms the Court’s reading. The Court has rejected many efforts to manufacture conflicts between the Arbitration Act and other federal statutes, see, e.g. American Express Co. v. Italian Colors Restaurant, 570 U. S. 228; and its §7 cases have generally involved efforts related to organizing and collective bargaining in the workplace, not the treatment of class or collective action procedures in court or arbitration, see, e.g., NLRB v. Washington Aluminum Co., 370 U. S. 9.

Finally, the employees cannot expect deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, because Chevron’s essential premises are missing. The Board sought not to interpret just the NLRA, “which it administers,” id., at 842, but to interpret that statute in a way that limits the work of the Arbitration Act, which the agency does not administer. The Board and the Solicitor General also dispute the NLRA’s meaning, articulating no single position on which the Executive Branch might be held “accountable to the people.” Id., at 865. And after “employing traditional tools of statutory construction,” id., at 843, n. 9, including the canon against reading conflicts into statutes, there is no unresolved ambiguity for the Board to address. Pp. 9–21.

No. 16–285, 823 F. 3d 1147, and No. 16–300, 834 F. 3d 975, reversed and remanded; No. 16–307, 808 F. 3d 1013, affirmed.

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

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Friday, May 18, 2018

Benaroya v. Willis

Benaroya v. Willis (CA2/4 B281761 5/17/18) Arbitration Ruling/Nonsignatory to Agreement

Benaroya Pictures (Benaroya) contracted with Westside Corporation (Westside) to pay the well-known actor Bruce Willis, the president of Westside, to perform in a movie to be produced by Benaroya.  After a dispute arose regarding Willis’ payment, Willis and Westside (collectively respondents) commenced arbitration proceedings against Benaroya, pursuant to the arbitration clause in the agreement.  While in arbitration, respondents moved to amend their arbitration demand to name appellant Michael Benaroya individually, even though he was not a party to the agreement, on the ground that he was the alter ego of Benaroya.  The arbitrator granted the request, found appellant to be Benaroya’s alter ego, and awarded damages to respondents for which both Benaroya and appellant, as Benaroya’s alter ego, were liable.  The trial court denied appellant and Benaroya’s petition to vacate the award as to appellant, and granted respondents’ petition to confirm the award.  In this appeal from the confirmation of the award, appellant contends the trial court erred because he was a nonsignatory to the arbitration agreement, and only the court, not the arbitrator, had authority to determine whether he was compelled to arbitrate as the alter ego of Benaroya.  We agree and therefore reverse the judgment.  We remand the case to the trial court with directions to:  (1) set aside its rulings denying appellant and Benaroya’s petition to vacate the award and granting respondent’s petition to confirm; and (2) enter new orders granting appellant and Benaroya’s petition to vacate the award as to appellant, and granting respondents’ petition to confirm the award only as to Benaroya.

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Monday, May 14, 2018

Snapp v. BNSF Railway Company

A plaintiff asserting a claim against his employer for a failure to accommodate him in accordance with the Americans with Disabilities Act has the burden of proving that his employer could have made a reasonable accommodation that would have enabled him to perform the essential functions of his job. The deposition testimony of a corporate designee is an evidentiary admission, but it is not a binding judicial admission. The jury is still allowed to consider other evidence to correct, supplement or explain that testimony.

Snapp v. BNSF Railway Company - filed May 11, 2018
Cite as 2018 S.O.S. 15-35410

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Thursday, May 10, 2018

Maldonado v. Epsilon Plastics, Inc.

When an employer is accused of having improperly implemented an alternative work schedule, the employer bears the burden of proving compliance with the procedural requirements to adopt that schedule. Workers who receive an award of damages for overtime that was unpaid because of an employer's improper adoption of an alternative work schedule have the burden of proving the number of hours they worked, which required them to prove whether they had worked through scheduled meal breaks. An employer's subjective good faith belief that wages were not due is insufficient to show the employer did not willfully fail to pay wages to an employee within the meaning of Labor Code Sec. 203. Evidence an employer made no inquiry into whether its successor had properly adopted an alternative work schedule is sufficient to defeat the employer's claim of good faith. Inaccurate wage statements alone do not justify penalties. Wage statements should include the hours worked at each rate and the wages earned, but when there is a wage and hour violation, the hours worked will differ from what was truly earned. Only the absence of the hours worked will give rise to an inference of injury, since the absence of accurate wages earned will be remedied by the violated wage and hour law itself.

Maldonado v. Epsilon Plastics, Inc. - filed April 18, 2018, publication ordered May 8, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 2210

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Wednesday, May 9, 2018

Contractors' State License Bd. v. Superior Court

Contractors' State License Bd. v. Superior Court (CA1/1 A153684, filed 4/26/18, pub. ord. 5/9/18) Licensing Board Disciplinary Proceeding/Apex Deposition

The Contractors’ State License Board (the Board) seeks a writ of mandate and a stay to prevent the “apex deposition” of David R. Fogt.  Fogt is the Board’s Registrar of Contractors, a position which makes him the Board’s secretary and chief executive officer. After real party in interest, Black Diamond Electric, Inc. (BDE), noticed Fogt’s deposition in a declaratory judgment action BDE had brought against the Board, Fogt sought a protective order to prevent the deposition.  Respondent court denied the motion for a protective order, and the Board now seeks writ review.

We conclude that under well-established California law, the head of a government agency, such as Fogt, generally is not subject to deposition.  “An exception to the rule exists only when the official has direct personal factual information pertaining to material issues in the action and the deposing party shows the information to be gained from the deposition is not available through any other source.”  (Westly v. Superior Court (2004) 125 Cal.App.4th 907, 911 (Westly).)  We hold that this exception does not apply in this case.  We therefore grant the Board’s petition and issue a peremptory writ in the first instance, as we previously informed the parties was possible.  (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177–180 (Palma).)

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Monday, May 7, 2018

Arnaudo Brothers v. ALRB

Arnaudo Brothers v. ALRB (CA5 F072420B 5/4/18) Agricultural Labor Relations Board/Unfair Labor Practice

This writ proceeding addresses decisions by the Agricultural Labor Relations Board (Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (Union).  The employer’s defense was that in the early 1980’s, the Union expressly disclaimed any interest in representing the bargaining unit—a disclaimer reinforced by the Union’s 30 years of inactivity.  The Board rejected the employer’s disclaimer defense to the failure to bargain charge, finding the purported disclaimer was not clear and unequivocal.  The Board awarded make whole-relief based on the determination that the employer’s litigation of the disclaimer issue did not further the policies and purpose of the Agricultural Labor Relations Act of 1975 (Lab. Code, §§ 1140-1166.3).[1]  The employer contends the Board erred in rejecting its disclaimer defense and in awarding make-whole relief.


In August 2017, we issued a decision concluding the Board properly rejected the employer’s disclaimer defense to the charge that employer failed to bargain with the Union, but erred in determining make-whole relief was “appropriate” for purposes of section 1160.3.  The California Supreme Court granted review pending its decisions in Gerawan Farming, Inc. v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1118 (Gerawan) and Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161 (Tri-Fanucchi).  In March 2018, the Supreme Court directed us to vacate our decision and reconsider the matter in light of Tri-Fanucchi, which reinstated an award of make-whole relief that this court had vacated.

Having received supplemental briefs and replies to the supplemental briefs, we conclude the Board did not err when it (1) identified and applied the rules that define when a certified union has made a disclaimer of interest in representing the bargaining unit; (2) determined the statement by the Union representative that “we’re through with you” (if made) was not a clear and unequivocal disclaimer of interest; and (3) concluded the Union’s subsequent conduct consistent with a disclaimer could not render the equivocal disclaimer effective.  On the question of make-whole relief, the principles set forth in Tri-Fanucchi compel the conclusion that the Board properly exercised its broad discretionary authority when it awarded make-whole relief in this case.

We therefore affirm the Board’s decisions.

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Davis v. County of Fresno

Davis v. County of Fresno (CA5 F073151 5/3/18) Public Safety Officers Procedural Bill of Rights

Plaintiff James Davis was dismissed from his employment as a supervising juvenile correctional officer based on findings of insubordination, discourteous treatment of a subordinate, wrongfully assuming supervisorial duties over his wife despite several admonitions to the contrary, exaggerating the hours he worked on multiple time cards, and other misconduct.  Davis’s administrative appeal of his dismissal was denied by the Civil Service Commission (Commission) of the County of Fresno (County).  Davis filed a petition for a writ of administrative mandamus requesting the superior court to set aside the Commission’s decision.  The superior court denied the petition.

On appeal, Davis contends County violated his constitutional due process rights by failing to provide him a copy of all materials upon which the disciplinary action was based prior to his Skelly hearing.  Davis also contends County’s failure to produce complete copies of reports and witness interviews conducted during the internal affairs investigation into his alleged misconduct violated the Public Safety Officers Procedural Bill of Rights Act, Government Code section 3300 et seq. (POBRA).

We conclude the materials delivered prior to Davis’s Skelly hearing satisfied the requirements of due process applicable before disciplinary action is imposed.  In contrast, we conclude County violated Davis’s right under POBRA to receive “any reports or complaints made by investigators or other persons.”  (§ 3303, subd. (g).)  We interpret the term “any reports” to include the incident reports and interview transcripts attached to a September 2012 memorandum prepared by a special probation investigator who looked into a retaliation complaint made by another officer against Davis.  Davis’s alleged discourteous treatment of this officer was one of the grounds for his dismissal.

The issue of the appropriate remedy for a violation of POBRA is committed to the broad discretion of the superior court.  Here, the record does not compel this court, as a matter of law, to reinstate Davis with backpay.  Furthermore, there exists a wide range of remedies and we make no comment as to the merits of any of the possible remedies the trial court might select.  Therefore, we remand this matter to the superior court and direct it to decide in the first instance the appropriate remedy.
We therefore reverse the judgment.

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Hernandez v. Rancho Santiago Community College Dist.

Hernandez v. Rancho Santiago Community College Dist. (CA4/3 G054563 5/3/18) FEHA Interactive Process/Reasonable Accommodation 

Plaintiff Marisa Hernandez worked for defendant Rancho Santiago Community College District on and off for a number of years without any complaints about her performance.  In 2013, she was hired as an administrative assistant.  During her one-year probationary period, her performance was to be evaluated at three months, seven months, and 11 months.  At the completion of 12 months of probation, she would be considered a permanent employee.  Eight months into her probationary period and with the district’s consent, she went on a temporary disability leave to have surgery to replace a knuckle on a finger she injured while working for the district prior to her most recent hiring.  She was scheduled to return to work on, or shortly after, the anniversary of her hiring date.  The district, however, terminated her while she was on the approved leave, because her performance had not been reviewed.
          
Hernandez sued the district under the California Fair Employment and Housing Act (the FEHA) (Gov. Code, § 12940, subds. (m), (n)), contending it failed to make reasonable accommodation for her medical condition and failed to engage in an interactive process.  At the conclusion of the court trial, the court found in Hernandez’s favor and awarded her $723,746 in damages.  The trial court found the district could have accommodated her by extending her probationary period, by deducting the four months she was on disability leave from her probationary period, or by adding the time away from work to the probationary period, and, contrary to the district’s position, the district would not have been required to make Hernandez a permanent employee on the anniversary of her hiring.  The district appeals, contending it had to terminate Hernandez’s probation and employment because if it did not, she would have become a permanent employee without having had her performance evaluated.  We affirm the judgment.

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Sali v. Corona Regional Med. Ctr.

Sali v. Corona Regional Med. Ctr. (9th Cir. 15-56460 5/3/18) Wage and Hour/Class Certification

The panel reversed the district court’s denial of class certification in a putative class action alleging employment claims against Corona Medical Center and UHS of Delaware, Inc; and remanded.

Plaintiffs Marlyn Sali and Deborah Spriggs moved for certification of seven classes of Registered Nurses, alleging they were underpaid by Corona as a result of certain employment policies and practices. The district court denied certification under Fed. R. Civ. P. 23 of each of the proposed classes on multiple grounds. The panel held that the district court’s determination, that plaintiffs failed to demonstrate their injuries were typical of the proposed classes, was premised on an error of law.

The panel held that the district court erred by striking a declaration at this preliminary stage, and the district court may not decline to consider evidence solely on the basis that the evidence is inadmissible at trial. The panel agreed with the district court’s conclusion that plaintiff Spriggs was not an adequate class representative because she was not a member of any class she sought to represent.

The panel held, however, that plaintiff Sali was an adequate class representative, and Spriggs’s inadequacy was not a valid basis to deny class certification. The panel held that the district court abused its discretion by concluding that attorneys from the law firm Bisnar Chase could not serve as adequate class counsel. The panel also held that at this early stage of the litigation, the district court’s decision on this issue was premature, but the district court was not precluded from considering counsel’s prior sanctions as evidence of inadequacy if they continue to neglect their duties.

The panel held that the district court erred by denying certification of the proposed rounding-time and wage statement classes on the basis that they failed Rule 23(b)(3)’s predominance requirement. First, the panel held that the district court’s determination that individual questions predominated in the claims of the proposed rounding-time class was based on an error of law. Under California law, the district court erred by interpreting time “actually worked” to mean only time spent engaged in work-related activities because time is compensable when an employee is working or under the control of his or her employer. Second, the panel held that the district court’s determination - that individual questions predominate in the claims of the proposed wage-statement class - was premised on legal error. The district court erred by concluding that damages for members of the wage statement class would require an individualized determination because California Labor Code specifies that a violation of § 226 is a per se injury.

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