Contributors

Friday, December 20, 2019

Doe v. Department of Corrections and Rehabilitation

An employee’s discrimination and retaliation claims under the Fair Employment and House Act fail if he presents no evidence that he was subjected to an adverse employment action; an employee’s decision to take a medical leave is not an adverse employment action where he voluntarily took the leave and was paid during the time off. The FEHA was not designed to make workplaces more collegial; its purpose is to eliminate more insidious behavior like discrimination and harassment based on protected characteristics. An employee’s failure to provide his employer with information about the nature and extent of his claimed disabilities is fatal to his interactive process and accommodation claims.

Doe v. Department of Corrections and Rehabilitation - filed Nov. 27, 2019, publication ordered Dec. 19, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 4424

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Thursday, December 19, 2019

Safeway Wage and Hour Cases

An employment task does not become exempt merely because the manager undertakes it in order to contribute to the smooth functioning of the store. While a factfinder must categorize concurrent performance of exempt and nonexempt work based on the manager’s purpose in undertaking the activity, there is no requirement that the concurrent performance of exempt and nonexempt activities must be considered nonexempt.

Safeway Wage and Hour Cases - filed Dec. 18, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 4368

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Monday, December 16, 2019

Mathews v. Happy Valley Conference Center, Inc.

The addition of the word person to Government Code §12940(h) was to ensure that the catch-all retaliation subdivision included all entities covered by the preceding subdivisions; there is no legislative history indicating the Legislature also intended by that addition to allow an employee fired by a religious entity employer to circumvent the religious entity exemption by characterizing the employer as a person for purposes of a retaliation suit. Punitive damages are recoverable for a violation of the whistleblower statute.

Mathews v. Happy Valley Conference Center, Inc. - filed Dec. 12, 2019, Sixth District
Cite as 2019 S.O.S. 4252

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Tuesday, December 3, 2019

Lehman v. Nelson

An ERISA plan amendment violated the plain language of an existing portion of the plan where the amendment specifically created non-benefit contributions and excluded those non-benefit contributions from the definition of contributions for which contributions would need to be made to a temporarily employed union worker’s home pension fund, and the plan mandated that all contributions received on behalf of temporary workers be transferred to the worker’s home fund.

Lehman v. Nelson - filed Dec. 3, 2019
Cite as 2019 S.O.S. 18-35321

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Wednesday, November 27, 2019

Suzanne Sullivan Named Regional Attorney for NLRB’s Region 2, Manhattan Office

National Labor Relations Board General Counsel Peter B. Robb announced the selection of Suzanne Sullivan as the Regional Attorney of the NLRB’s Regional office in Manhattan (Region 2).  

In her new position, Ms. Sullivan will assist Regional Director Jack J. Walsh, Jr., in the administration and enforcement of the National Labor Relations Act, serving the boroughs of Manhattan and the Bronx, and the counties of Orange, Putnam, Rockland and Westchester.

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Thursday, November 21, 2019

County of Ventura v. Public Employment Relations Board (SEIU Local 721)

Substantial evidence supported a finding that a county was a joint employer of the employees working for medical clinics owned by private corporations under contract with the county where the county exercised control over compensation and staffing decisions, the county was responsible for the financial aspects of the clinics’ operations, the clinic had control over the conditions of employment, and the clinic controlled the clinic’s operations.

County of Ventura v. Public Employment Relations Board (SEIU Local 721) - filed Nov. 21, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 3731

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Thursday, November 14, 2019

Glynn v. Superior Court (Allergan)

A mistaken application of a legitimate company policy can support a claim for disability discrimination under the Fair Employment and Housing Act. A lack of animus does not preclude liability for a disability discrimination claim

Glynn v. Superior Court (Allergan) - filed Nov. 13, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 3554

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Friday, November 1, 2019

O’Grady v. Merchant Exchange Productions, Inc.

A service charge may be a gratuity that Labor Code §3511 requires to go only to the non-managerial employees involved with the actual serving of the food and beverages at an event.

O’Grady v. Merchant Exchange Productions, Inc. - filed Oct. 31, 2019, First District, Div. Two
Cite as 2019 S.O.S. 3399

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Carroll v. City and County of San Francisco

An unlawful employment practice occurred each time a worker received an allegedly discriminatory disability retirement check, such that a new limitations period applies to each allegedly discriminatory check. A worker’s putative class claims are timely if she alleges unlawful acts occurring during the limitations period even if those acts arise from a systematic policy of discrimination that came into existence before then.

Carroll v. City and County of San Francisco - filed Oct. 31, 2019, First District, Div. Four
Cite as 2019 S.O.S. 3392

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Thursday, October 31, 2019

NLRB Announces Partnership with Melwood to Provide Training Opportunities for those with Differing Abilities

WASHINGTON, DC, October 31, 2019—The National Labor Relations Board announced today that it is partnering with the nonprofit organization Melwood to provide on-the-job training and federal office work experience for persons of differing abilities.

As one of the area’s leading nonprofit employers and advocates in the DC region, Melwood provides job training, employment, and recreational services to thousands of people of differing abilities each year. Melwood proudly supports and facilitates the employment goals of its participants who want to work in either the public or private sector through customized training and support partnership programs, such as the program being announced today. The NLRB supports equal access to full employment, including for persons of differing abilities and persons with targeted disabilities, as specified under the Americans with Disabilities Act.

“We look forward to our partnership with Melwood. As we continue to create a more inclusive workforce, we welcome participants in the program to the Agency.” said NLRB Chairman John Ring.

NLRB General Counsel Peter Robb stated, “The agency looks forward to welcoming these individuals and I know they will gain valuable experience working alongside the staff here at the NLRB.”

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Monday, October 28, 2019

National Labor Relations Board v. International Association of Bridge, Structural Ornamental, and Reinforcing Iron Workers

The National Labor Relations Board’s order to a union to cease urging certain persons to engage in a strike or refuse to work did not violate the First Amendment where the order involved communications addressed to neutral employees within the tightly regulated contours of labor negotiations.

National Labor Relations Board v. International Association of Bridge, Structural Ornamental, and Reinforcing Iron Workers - filed Oct. 28, 2019
Cite as 2019 S.O.S. 17-73210

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McCormick v. California Public Employees’ Retirement System

Employees are eligible for a disability retirement under the California Public Employees’ Retirement System pursuant to Government Code §21156 when, due to a disability, they can no longer perform their usual duties at the only location where their employer will allow them to work, even if they might be able to perform those duties at a theoretical different location.

McCormick v. California Public Employees’ Retirement System - filed Oct. 25, 2019, First District, Div. One

Cite as 2019 S.O.S. 3265

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Friday, October 18, 2019

Jimenez v. U.S. Continental Marketing Inc.

When a temporary staffing service employee asserts a Fair Employment and Housing Act claim against a contracting employer, the determination of whether the contracting employer qualifies as the employer of the staffing service employee does not depend on whether the contracting employer exerted more control over the employee than the staffing service company; the focus is on the contracting employer individually.

Jimenez v. U.S. Continental Marketing Inc. - filed Oct. 17, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 3185

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Friday, October 11, 2019

Ferra v. Loews Hollywood Hotel

A worker’s regular rate of compensation for calculating meal or rest break premium payments is not the same thing as her regular rate of pay for calculating overtime premium payments. An employer’s facially neutral policy for rounding employee work time does not systematically undercompensate its employees.

Ferra v. Loews Hollywood Hotel - filed Oct. 9, 2019, Second District, Div. Three
Cite as 2019 S.O.S. 3095

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Thursday, October 10, 2019

Henderson v. Equilon Enterprises

The ABC test adopted by the California Supreme Court in Dynamex Operations West v. Superior Court addresses claims that workers have been misclassified as independent contractors rather than covered employees, and was not intended to apply to claims of joint employer liability; the governing standard for determining the existence of a joint employment relationship remains Martinez v. Combs. A corporation was not the joint employer of a service station worker, even though his employer was contractually obligated to perform certain tasks for the corporation, since the employer alone dictated how those tasks would be performed, the corporation had no power to fire the worker, and did not have the ability to hinder his work.

Henderson v. Equilon Enterprises - filed Oct. 8, 2019, First District, Div. One
Cite as 2019 S.O.S. 3053

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Gonzales v. San Gabriel Transit

The ABC test adopted in Dynamex Operations West v. Superior Court is retroactively applicable to pending litigation on wage and hour claims; the ABC test applies with equal force to Labor Code claims that seek to enforce the fundamental protections afforded by wage order provisions; and statutory claims alleging misclassification not directly premised on wage order protections, and which do not fall within the generic category of wage and hour laws, are appropriately analyzed under the test established in S.G. Borello and Sons v. Department of Industrial Relations.

Gonzales v. San Gabriel Transit - filed Oct. 8, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 3060

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Monday, October 7, 2019

Processing Results Improvements Consistent with Agency’s Strategic Plan Goals

WASHINGTON, DC, October 7, 2019—The National Labor Relations Board (NLRB) reported improved case processing statistics for FY 2019. The results reflect a renewed focus on more-timely processing of cases, which is part of the Agency’s strategic plan goals. 

The Board issued 303 decisions in contested cases during FY 2019. Adopting a case processing pilot program, the Board committed itself to expediting cases in order to better serve the parties and the American public. Under the program, there was particular focus on issuing decisions in some of the oldest cases. As a result, the median age of all cases pending before the Board was reduced from 233 days in FY 2018 to 157 days at the end of FY 2019, an almost 33% reduction.

In addition, the Board significantly reduced the number of cases pending before the Board to its lowest level since 2012.  As of the end of FY2019, the number of pending cases was reduced from 281 at the end of FY 2018 to 227 currently, a reduction of almost 20%.

During the same time period, the Regional Offices made exceptional strides to meet our strategic goal to reduce case processing time by 20% over four years. In just one year, the Regions overall nearly met our four-year goal by reducing the time of filing to disposition of unfair labor practice cases from 90 to 74 days, a decrease of 17.5%.

The Regions also overall reduced the time from informal settlement to final disposition of an unfair labor practice case from 173 to 153 days, a decrease of 11.5% and improved the timeliness of representation case handling by processing 90.9% of representation cases in 100 days or less.

The Regional Office settlement rate was 99.1% this past fiscal year, resolving over 5,000 cases prior to issuing complaint and over 800 cases post-complaint. Additionally, compliance was achieved in over 400 cases in which Board orders issued. The Regions also collected over $21.2 million dollars in backpay, fees, dues fines and reimbursements for employees. 

These are outstanding results in a fiscal year in which 18,549 unfair labor practice charges and 2,096 representation cases were filed in our Regional Offices.  

Chairman John Ring stated, “The statistics announced today are further evidence that our efforts to reduce case backlog and ensure timely consideration of cases is bearing fruit. Resolving labor disputes more quickly is one of the best ways we can advance the purposes of the Act.”   

General Counsel Peter Robb stated, “I commend the dedication of the entire NLRB staff, especially those in the field offices, for achieving these outstanding results, which puts all on notice that violations of the Act will be addressed quickly and effectively.”

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees and employers from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.

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Friday, October 4, 2019

County of Los Angeles v. Civil Service Commission (Montez)

A deputy sheriff’s failure to report two incidents of abuse of an inmate constituted an inexcusable neglect of his duty to safeguard the jail population; his lies during the subsequent investigation hindered rectification of the situation, brought discredit upon his position and department, and forever undermined his credibility; it is simply intolerable that dishonesty and a culture of silence that countenances abuse of prisoners be permitted within the ranks of those charged with public safety and welfare, and the civil service commission to reduce the deputy’s discharge to a 30-day suspension was an abuse of discretion.

County of Los Angeles v. Civil Service Commission (Montez) - filed Oct. 3, 2019, Second District, Div. One
Cite as 2019 S.O.S. 2998

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NLRB Extends Time for Submitting Comments on Proposed Election Protection Rule

WASHINGTON, DC—The National Labor Relations Board (NLRB) is extending the time for submitting comments regarding its proposed amendments to Part 103 of its Rules and Regulations for an additional 60 days beyond the current deadline of October 11, 2019. The proposed amendments concern the Board’s blocking charge policy, voluntary recognition bar, and Section 9(a) recognition in the construction industry. 

The submission window is currently open and interested parties may now file comments on or before Tuesday, December 10, 2019. Comments replying to the comments submitted during the initial comment period must be received by the Board on or before December 24, 2019.  

The Federal Register will announce and publish this extension of time during the week of October 7, 2019.

Public comments are invited on all aspects of the proposed rule and should be submitted either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employees and employers from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year.

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Thursday, October 3, 2019

Nejadian v. County of Los Angeles

To prevail on a claim for a violation of Labor Code §1102.5(c), the plaintiff must identify both the specific activity and the specific statute, rule, or regulation at issue; the court must then determine the legal question whether the identified activity would result in a violation or noncompliance with the identified statute, rule, or regulation, and, if so, the jury must determine the factual issue whether the plaintiff was retaliated against for refusing to participate in the identified activity. A trial court erred in instructing a jury that a worker could establish he was subjected to an adverse employment action for purposes of the Fair Employment and Housing Act even if no violation of FEHA was committed.

Nejadian v. County of Los Angeles - filed Oct. 1, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 2929

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Tuesday, October 1, 2019

Teamsters Local 2010 v. Regents of the University of California

A reasonable trier of fact could find that a bulletin issued by a public university was an attempt to influence the decision of employees as to the issue of unionization, even though the bulletin professed the university’s neutrality on the issue, the bulletin was couched in terms of providing employees with facts, and it did not threaten the employees with reprisals if they unionized. While noncoercive communications falling under Government Code §3571.3 will not qualify as unfair labor practices, such communications may still violate §16645.6.

Teamsters Local 2010 v. Regents of the University of California - filed Sept. 30, 2019, First District, Div. Five
Cite as 2019 S.O.S. 2903

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Salazar v. McDonald’s Corporation

Under California common law, a franchisor cannot be classified as an employer of its franchisees’ workers; a franchisor also is not an agent of a franchisee who can be held liable for wage-and-hour violations under an ostensible-agency theory.

Salazar v. McDonald’s Corporation - filed Oct. 1, 2019
Cite as 2019 S.O.S. 17-15673

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Wednesday, September 25, 2019

Williams v. Sacramento River Cats Baseball Club, LLC

Failing to hire a prospective employee based on race violates public policy, but the employer will not have committed a tort against the prospective employee because it owed no duty to that person; a Tameny action for wrongful discharge can only be asserted against an employer.

Williams v. Sacramento River Cats Baseball Club, LLC - filed Sept. 24, 2019, Third District
Cite as 2019 S.O.S. 2792

For more information, go to:
http://www.beverlyhillsemploymentlaw.com

Gerawan Farming v. Agricultural Labor Relations Board (Garcia)

An employee has no right of access under the federal and state Constitutions to on-the-record sessions of the mandatory mediation and conciliation proceedings between his employer and labor union.

Gerawan Farming v. Agricultural Labor Relations Board (Garcia) - filed Sept. 24, 2019, Fifth District
Cite as 2019 S.O.S. 2778

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Tuesday, September 24, 2019

Vazquez v. Jan-Pro Franchising International Inc.

Under Massachusetts law, the mere alignment of interests is insufficient to support preclusive effect against a nonparty; the doctrines of res judicata and law of the case do not bar a group of plaintiffs from litigating whether they qualified as employees of a company when they had been severed from a prior case and the plaintiff in that case had no legal relationship to the group plaintiffs. The retroactive application of the Dynamex employment test does not violate due process.

Vazquez v. Jan-Pro Franchising International Inc. - filed Sept. 24, 2019
Cite as 2019 S.O.S. 17-16096

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Monday, September 23, 2019

Southern California Pizza Co. v. Certain Underwriters at Lloyd’s London

An employment practices liability insurance policy exclusion relating to wage and hour or overtime law(s) concerns laws regarding duration worked and/or remuneration received in exchange for work.

Southern California Pizza Co. v. Certain Underwriters at Lloyd’s London - filed Aug. 27, 2019, publication ordered Sept. 20, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 2715

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Friday, September 20, 2019

NLRB Proposes Rulemaking Concerning Students

WASHINGTON, DC—The National Labor Relations Board (NLRB) will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register on September 23, 2019, proposing a rule regarding students. Addressing a recurring question regarding the definition of “employee” under Section 2(3) of the National Labor Relations Act (NLRA), the proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies.

Through issuance of the NPRM, the Board seeks public comment on its proposed view that students who perform services – including teaching and/or research – for compensation at a private college or university in connection with their studies are not “employees” under the NLRA. The basis for this proposed rule is the Board’s preliminary position, subject to revision in light of public comment, that the relationship these students have with their school is predominately educational rather than economic.

In announcing the proposed rule, NLRB Chairman John F. Ring stated: “In the past 19 years, the Board has changed its stance on this issue three times. This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.” Chairman Ring was joined by Board Members Marvin E. Kaplan and William J. Emanuel in issuing the proposed rulemaking. Board Member Lauren McFerran dissented.

The NPRM, including majority and dissenting views as well as relevant statistical appendices cited therein, can be accessed on the Board’s public website at https://www.nlrb.gov/about-nlrb/what-we-do/national-labor-relations-board-rulemaking/student-assistants-rule.

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Thursday, September 19, 2019

Alaama v. Presbyterian Intercommunity Hospital, Inc.

Business and Professions Code section 809.1 requires a hospital peer review board to give a physician notice and the right to request a hearing when the hospital revokes or terminates the physician’s membership, staff privileges, or employment for a “medical disciplinary cause or reason.”  In 2016 Presbyterian Intercommunity Hospital, Inc., doing business as PIH Health Hospital-Whittier, and PIH Health Physicians (collectively, the hospital) terminated Dr. Abdulmouti Alaama’s privileges and staff membership without giving him a hearing.  Dr. Alaama filed a complaint that included causes of action seeking a writ of administrative mandate, alleging, among other things, the hospital denied him the right to a hearing before terminating his privileges.  The trial court denied the petition.  Because the hospital terminated Dr. Alaama’s privileges and staff membership for a “medical disciplinary cause or reason,” we reverse.

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Thursday, September 12, 2019

Z.B. N.A. v. Superior Court (Lawson)

The civil penalties a plaintiff may seek under Labor Code §558 through the Private Attorneys General Act do not include the amount sufficient to recover underpaid wages; although §558 authorizes the Labor Commissioner to recover such an amount, this amount is not a civil penalty that a private citizen has authority to collect through the PAGA.

Z.B. N.A. v. Superior Court (Lawson) - filed Sept. 12, 2019
Cite as 2019 S.O.S. 2520

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Wednesday, September 11, 2019

Secretary of Labor v. Seward Ship’s Drydock, Inc.

The Respiratory Protection Standard’s §1910.134(d)(1)(iii) requires covered employers to evaluate the respiratory hazards at their workplaces whenever there is the potential for overexposure of employees to contaminants, in order to determine whether respirators are necessary to protect the health of employees.

Secretary of Labor v. Seward Ship’s Drydock, Inc. - filed Sept. 11, 2019
Cite as 2019 S.O.S. 18-71216

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Rudel v. Hawai’i Management Alliance Association

Challenges to an ERISA plan’s right to reimbursement are properly characterized as ERISA §502(a) claims; under §502, asserted remedies and causes of action that conflict with ERISA’s civil enforcement scheme are deemed preempted. When a claim is removed from state to federal court, the state law claim is reconfigured as a federal ERISA cause of action; §514 expressly preempts state laws that relate to any employee benefit plan but saves from preemption any state law that regulates insurance, banking, or securities. If a case is properly before a federal court under §502, then a state statute that is saved from preemption under §514 and does not conflict with §502, can supply the relevant rule of decision.

Rudel v. Hawai’i Management Alliance Association - filed Sept. 11, 2019
Cite as 2019 S.O.S. 17-17395

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Board Adopts Contract Coverage Standard for Determining Whether Unilateral Changes Violate the Act

WASHINGTON, DC—In a decision issued today, the National Labor Relations Board adopted the “contract coverage” standard for determining whether a unionized employer’s unilateral change in a term or condition of employment violates the National Labor Relations Act. In doing so, the Board abandoned the “clear and unmistakable waiver” standard, which has been rejected by several federal courts of appeals, notably including the Court of Appeals for the District of Columbia Circuit, which has plenary jurisdiction to review Board rulings.

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Tuesday, September 10, 2019

Head v. Wilkie

The panel reversed the district court’s order granting summary judgment to defendants in an action brought by Christian Head, M.D., an African-American, board-certified head and neck surgeon who filed a lawsuit against his employer, the Secretary of the Department of Veterans Affairs and individual employees alleging, in part, that his supervisors violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague’s and his own civil rights cases.

The district court granted the defendants’ motion for summary judgment on the § 1985(2) conspiracy claim, relying on David v. United States, 820 F.2d 1038 (9th Cir. 1987), which held that only parties to the initial case who were “hampered in being able to present an effective case” can show injury sufficient to bring a section 1985(2) claim.

The panel held that this court’s decision in David was abrogated by Haddle v. Garrison, 525 U.S. 121, 126 (1998), to the extent that David limited section 1985(2) claims on statutory standing and injury grounds in conflict with Haddle. The panel held that a plaintiff asserting conspiracy under section 1985(2) need not show that the party in the original proceeding was hampered in presenting an effective case; interference with a witness’s employment is a cognizable injury for section 1985(2) purposes. The panel held that David’s limitations were irreconcilable with Haddle’s proclamation that intimidation or retaliation against witnesses in federal court proceedings constitute the “gist of the wrong” at which the statute is directed. The panel held that, as other sister circuits have recognized, this expanded view of section 1985(2) aligned with the Supreme Court’s broad reading of the Reconstruction civil rights acts like section 1985.

The panel held that plaintiff’s allegations that employees retaliated against him based on his testimony in a colleague’s federal civil rights case and in his own case alleged a cognizable injury. The panel reversed the district court’s order granting summary judgment to the defendant supervisors on plaintiff’s section 1985(2) conspiracy claim and remanded for further proceedings consistent with the panel’s opinion and with the concurrently filed unpublished memorandum, which addressed plaintiff’s remaining employment discrimination claims.

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Monday, September 9, 2019

Board Finds Partial Plant Unit at Boeing’s South Carolina Facility Not an Appropriate Unit

WASHINGTON, DC – The National Labor Relations Board held today that a petitioned-for unit at Boeing’s South Carolina plant that was limited to only two job classifications within an aircraft production line was not an appropriate unit for purposes of conducting a union election. In so doing, the Board applied and clarified the traditional community-of-interest standard. The case is The Boeing Company (10-RC-215878; 368 NLRB No. 67).

The decision resolves a petition filed by the International Association of Machinists Union for a unit of approximately 178 mechanics out of a workforce totaling over 2700 employees.  Boeing argued that the mechanics – flight-line readiness technicians and flight-line readiness technician inspectors – must be included in the larger community of workers at the aircraft production plant where the Company’s 787 Dreamliner is built.   

The Board noted its prior rejection of the “micro-unit” holding in Specialty Healthcare, 357 NLRB 934 (2011) and its return in PCC Structurals, Inc., 365 NLRB No. 160 (2017), to the traditional community-of-interest test. In one of the first cases applying the traditional test since issuing PCC Structurals, the Board set forth a clarifying, three-step analysis for determining whether a petitioned-for unit is appropriate. Under that analysis, the Board will consider (1) whether the members of the petitioned-for unit share a community of interest with each other, (2) whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members, and (3) guidelines the Board has established for appropriate unit configurations in specific industries.

In reaching its decision, the Board found that the mechanics in the petitioned-for unit did not share an internal community of interest and did not have sufficiently distinct interests from those employees excluded from the petitioned-for unit. The Board also concluded that there were no appropriate-unit guidelines specific to the employer’s industry. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member McFerran, dissenting, would have found the petitioned-for unit appropriate.

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Wednesday, September 4, 2019

Thurston v. Midvale Corporation

Cheryl Thurston is blind and uses screen reader software (a screen reader) to access the Internet and read website content. She filed this lawsuit after she could not access appellant’s restaurant website, www.whisperloungela.com, with her screen reader.  Her complaint alleged appellant violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by violating the federal American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).

This appeal asks us to decide whether Title III of the ADA applies to this website, requiring appellant Midvale Corporation to render its restaurant website accessible to blind individuals such as Thurston.  Accessibility would require Midvale to redesign its website so it can be read aloud by screen reader software.  Appellant asks us to adopt the 20-year-old minority position of the United States Court of Appeals for the Third Circuit that the ADA applies to physical barriers to physical places only and to reverse the trial court’s imposition of an injunction and statutory damages and grant of summary judgment in favor of Thurston.  We decline to do so.

Appellant raises three other contentions.  First, it argues that even if the ADA applies to websites, summary judgment must be reversed because the statutory damages award and the injunction violate its right to due process.  Appellant next contends summary judgment must be reversed because there is a triable issue of fact as to whether providing a telephone number and email address is an acceptable alternative to a website accessible by screen readers.  Finally, appellant contends the injunction must be dissolved because it is overbroad and uncertain and Thurston lacked standing to claim prospective relief.  The claims invoking due process, standing, and overbreadth are claims appellant made in its own unsuccessful cross-motion for summary judgment. We agree with the trial court on all issues and affirm the judgment.

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Arias v. Residence Inn by Marriott

The panel vacated the district court’s order sua sponte remanding to state court a putative class action brought by employees against Residence Inn by Marriott, which had been removed to federal court under the Class Action Fairness Act.

The panel held that when a notice of removal plausibly alleges a basis for federal court jurisdiction, a district court may not remand the case back to state court without first giving the defendant an opportunity to show by a preponderance of the evidence that the jurisdictional requirements were satisfied. Marriott’s notice of removal alleged that the amount in controversy requirement was satisfied, and the district court did not conclude that Marriott’s allegations were implausible. The panel held that by remanding the case to state court sua sponte, the district court deprived Marriott of a fair opportunity to submit proof. The panel concluded that this error warranted vacatur of the remand order.

The panel held that when a defendant’s allegations of removal jurisdiction are challenged, the defendant’s showing on the amount in controversy may rely on reasonable assumptions. The panel held that Marriott’s notice of removal included personnel and payroll data, and with that data, Marriott estimated the amount-in-controversy by making assumptions that were plausible and may prove to be reasonable in light of allegations in the complaint. The panel held that on remand Marriott must show that its estimated amount in controversy relied on reasonable assumptions. The panel held that when a statute or contract provides for the recovery of attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the amount in controversy.

The panel rejected plaintiff’s contention that the position taken by Marriott in its summary judgment motion in state court – that plaintiff’s claims are barred by a release from a prior class action settlement – defeated federal court jurisdiction.

The panel remanded on an open record for the district court to permit the parties to submit evidence and arguments on the amount in controversy.

For more information, go to:
http://www.beverlyhillsimmigrationlaw.com

Friday, August 30, 2019

Jeffra v. California State Lottery

A plaintiff’s complaint of retaliation arose from protected activity where the plaintiff alleged his employer engaged in a pretextual investigation of him after he filed a whistleblower complaint.

Jeffra v. California State Lottery - filed Aug. 29, 2016, Second District, Div. Eight 
Cite as 2019 S.O.S. 2368 

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Thursday, August 29, 2019

OTO, LLC v. Kho

An agreement to arbitrate wage disputes can be enforceable so long as it provides an accessible and affordable process for resolving those disputes; even if a litigation-like arbitration procedure could be an acceptable process, an employee may not be coerced or misled into accepting this trade.

OTO, LLC v. Kho - filed Aug. 29, 2019 
Cite as 2019 S.O.S. 2266 

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Rodriguez v. Workers' Comp. Appeals Bd.

Petitioner Josafat Rodriguez, Jr. is a veteran of the Gulf War, and served as a police officer for the City of Santa Cruz (“City”) from 1995 until 2007.  He applied for industrial disability retirement in 2011 with the California Public Employee’s Retirement System (“PERS” or “CalPERS”) based on his diagnosis of Post-Traumatic Stress Disorder (“PTSD”) that was caused in part by his work for the City.

The City disputed whether Rodriguez was entitled to disability retirement through six- and one-half years of litigation resulting in two opinions from this Court that ultimately confirmed Rodriguez’s right to the retirement allowance.  (Rodriguez v. City of Santa Cruz (2014) 227 Cal.App.4th 1443 (Rodriguez I); Rodriguez v. City of Santa Cruz (Sept. 22, 2016, H042280) [nonpub. opn.] (Rodriguez II).)

Following this Court’s decision in Rodriguez II, the City granted Rodriguez disability retirement, but denied his claim of industrial causation, and he began to receive benefits on December 1, 2016.  Rodriguez then requested a finding that his disability was industrial from the Workers’ Compensation Appeals Board (“WCAB” or “Board”) on April 25, 2017.  The Board concluded that Rodriguez’s disability was industrial, but that he was barred from receiving industrial disability retirement benefits because his claim for a finding of industrial causation was untimely under the five-year time limitation set forth in Government Code section 21171.

We find that Rodriguez’s claim for industrial causation was timely.  We therefore annul the Board’s decision. 

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Franco v. Greystone Ridge Condominium

In March 2018, employees of defendant Greystone Ridge Condominium (Greystone), including plaintiff Victor M. Quiroz Franco (plaintiff), were presented with and asked to sign an agreement requiring that each employee agree to submit to final and binding arbitration “[a]ny and all claims . . . relating to any aspect of . . . employment with Employer (pre-hire through post-termination).”  About 10 days later, plaintiff filed a complaint against Greystone, C & A Services, John Stokke, and Maher A.A. Azer (defendants) asserting employment-related claims.  Two days after that, plaintiff signed the arbitration agreement and returned it to Greystone.  Defendants filed a motion to compel arbitration of plaintiff’s claims which plaintiff opposed on the ground the arbitration agreement failed to expressly state that claims that had already accrued, including the claims asserted in plaintiff’s complaint, were subject to arbitration.  The trial court agreed with plaintiff and denied the motion to compel arbitration.

We reverse.  The parties’ arbitration agreement is clear, explicit, and unequivocal with regard to the claims subject to it and contains no qualifying language limiting its applicability to claims that had yet to accrue.  On the contrary, the agreement’s reference to claims relating to “pre-hire” matters expresses an intent to cover all claims, regardless of when they accrued, that are not otherwise expressly excluded by the arbitration agreement. 

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Monday, August 26, 2019

Ray v. County of Los Angeles

The panel affirmed the district court’s order denying a defendant county’s motion to dismiss, on Eleventh Amendment immunity grounds, a putative collective action under the Fair Labor Standards Act; reversed the district court’s order regarding the putative collective period; and remanded.

Plaintiff homecare providers were employed through California’s In-Home Supportive Services program, which is implemented and run by the State and its counties. In October 2013, the Department of Labor promulgated a new rule providing that homecare providers would be entitled to overtime pay under the FLSA. The final rule had an effective date of January 1, 2015. In 2014, the District Court for the District of Columbia vacated the rule. On August 21, 2015, the D.C. Circuit reversed and ordered the district court to enter summary judgment for the Department of Labor. On September 14, 2015, the Department of Labor announced that it would not bring enforcement actions against any employer for violations of the new rule for 30 days after issuance of the mandate of the D.C. Circuit. On October 27, 2015, the Department of Labor said it would not begin enforcing the new rule until November 12, 2015. The State began paying overtime wages on February 1, 2016.

Affirming in part, the panel held that the County of Los Angeles was not entitled to Eleventh Amendment immunity. The panel assumed without deciding that a county might be entitled to immunity if acting as an arm of the state. The panel held that, under the five-part Mitchell test, the County was not an arm of the State when it administered the IHSS program because the state-treasury factor, which is the most important, and all but one of the other Mitchell factors weighed against immunity. The panel held that a later Supreme Court case, Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994), did not undermine Mitchell such that it should be overruled.

Reversing in part, the panel held that the effective date of the Department of Labor’s rule was January 1, 2015, because the legal effect of the D.C. Circuit’s vacatur was to reinstate the original effective date. The panel held that the Department of Labor’s choice against enforcing the rule until November 12, 2015, did not eliminate the availability of private rights of action until that date. Accordingly, the beginning of the putative collective period was January 1, 2015.

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Tuesday, August 20, 2019

Murray v. Mayo Clinic

A plaintiff bringing a disability discrimination claim under 42 U.S.C. §12112 must show that an adverse employment action would not have occurred but for the disability.

Murray v. Mayo Clinic - filed Aug. 20, 2019 
Cite as 2019 S.O.S. 17-16803 

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Dorman v. The Charles Schwab Corporation

ERISA claims can be subject to mandatory arbitration.

Dorman v. The Charles Schwab Corporation - filed Aug. 20, 2019 
Cite as 2019 S.O.S. 18-15281

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Valtierra v. Medtronic Inc.

Even if a worker’s impairment can qualify as an impairment under the Americans with Disabilities Act, he could not establish a viable disability discrimination claim where he could not show a causal connection between his impairment and his termination.

Valtierra v. Medtronic Inc. - filed Aug. 20, 2019 
Cite as 2019 S.O.S. 17-15282 

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Thursday, August 15, 2019

Voris v. Lampert

An employee cannot assert a conversion claim based on the nonpayment of wages.

Voris v. Lampert - filed Aug. 15, 2019 
Cite as 2019 S.O.S. 3989 

For more information, go to:
http://www.beverlyhillsimmigrationlaw.com

Clifford v. Quest Software Inc.

The question posed in this appeal is whether an employee’s claim against his employer for unfair competition under Business and Professions Code section 17200 (the UCL) is arbitrable.  The employee brought various wage and hour claims against his employer, and the employer moved to compel arbitration based on the parties’ arbitration agreement.  The trial court granted the motion in part and ordered to arbitration every cause of action except the employee’s UCL claim, which the court concluded was not arbitrable.  In so ruling, the court cited without discussion our Supreme Court’s holding in Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303 (Cruz).

We reverse that portion of the trial court’s order.  Assuming Cruz remains good law — a question we need not answer here — Cruz at most stands for the proposition that UCL claims for “public” injunctive relief are not arbitrable.  (Cruz, supra, at pp. 315-316.)  Cruz does not bar arbitration of a UCL claim for private injunctive relief or restitution, which is precisely what the UCL claim here seeks.  The employee’s UCL claim therefore is subject to arbitration, along with his other causes of action. 

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Wednesday, August 14, 2019

​ Mejia v. Merchants Building Maintenance

Defendants Merchants Building Maintenance, LLC and Merchants Building Maintenance Company (the MBM defendants) appeal from an order of the trial court denying their joint motion to compel arbitration.  The MBM defendants moved to compel arbitration of a portion of plaintiff Loren Mejia's cause of action brought against them for various violations of the Labor Code under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).

Pursuant to PAGA, "an 'aggrieved employee' may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations.  (Lab. Code, § 2699, subd. (a).)"  (Arias v. Superior Court (2009) 46 Cal.4th 969, 980 (Arias).)  A PAGA claim "is not a dispute between an employer and an employee arising out of their contractual relationship.  It is a dispute between an employer and the state, which alleges directly or through its agents—either the [Labor and Workforce Development] Agency or aggrieved employees—that the employer has violated the Labor Code."  (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386–387 (Iskanian).)  In Iskanian, the Supreme Court held that individual employees cannot contractually agree to arbitrate or waive any predispute PAGA claims, but they may agree to arbitrate their "individual damages claims."  (Iskanian, supra, at p. 387.)

The MDM defendants moved to compel arbitration of that portion of Mejia's PAGA claim in which she seeks "an amount sufficient to recover underpaid wages" pursuant to section 558.  Section 558 provides in relevant part:

"(a) Any employer or other person acting on behalf of an employer who violates, or causes to be violated, a section of this chapter or any provision regulating hours and days of work in any order of the Industrial Welfare Commission shall be subject to a civil penalty as follows:

"(1) For any initial violation, fifty dollars ($50) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

 "(2) For each subsequent violation, one hundred dollars ($100) for each underpaid employee for each pay period for which the employee was underpaid in addition to an amount sufficient to recover underpaid wages.

"(3) Wages recovered pursuant to this section shall be paid to the affected employee.

"[¶] . . . [¶]

"(d) The civil penalties provided for in this section are in addition to any other civil or criminal penalty provided by law."  (§558, subds. (a), (d).)

The MBM defendants contend that Mejia's claim to recover the portion of the penalty under section 558 that represents underpaid wages amounts to a claim for individual damages because it seeks "victim-specific relief," given that section 558 provides that any amount recovered representing the amount of underpaid wages are to be directed to "the affected employee."  The MBM defendants further contend that because Mejia agreed to arbitrate any individual claim that she may have to her unpaid wages, any claim that she asserts seeking the amount that is sufficient to recover underpaid wages under section 558 must be separated from the remainder of the PAGA claim and sent to arbitration.  The MBM defendants maintain that only that portion of Mejia's claim brought pursuant to section 558 in which she seeks to recover the $50 or $100 per violation per employee civil penalty on behalf of herself and other aggrieved employees may be brought by an individual plaintiff as a representative PAGA claim that is not subject to arbitration.

The question presented in this case has been framed by other courts as a question as to whether a single PAGA claim seeking recovery of the civil penalty provided for in section 558 may be "split" in the way that the MBM defendants suggest.  In other words, may a court split a single PAGA claim so as to require a representative employee to arbitrate that aspect of the claim in which the plaintiff seeks to recover the portion of the penalty that represents the amount sufficient to recover underpaid wages where the representative employee has agreed to arbitrate her individual wage claims, while at the same time retain in the judicial forum that aspect of the employee's claim in which the plaintiff seeks to recover the additional $50 or $100 penalties provided for in section 558 for each violation of the wage requirements?  Appellate courts are divided on this question.  (Compare Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228 [concluding that claim for unpaid or underpaid wages under section 558 involves "victim-specific relief" and is subject to arbitration where employee has agreed to arbitrate private claims] with Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, 724 (Lawson) [concluding that court may not split a PAGA claim seeking recovery of civil penalties under section 558 in order to send the portion seeking section 558 unpaid or underpaid wages penalties to arbitration because section 558 provides "no private right of action and by its terms is only enforceable by the LWDA"] and Zakaryan v. The Men's Wearhouse, Inc. (2019) 33 Cal.App.5th 659, 672 (Zakaryan) [concluding that court may not split a PAGA claim seeking recovery of civil penalties under section 558 in order to send the portion seeking section 558 underpaid wages penalties to arbitration because "an individual PAGA plaintiff is at all times acting on behalf of the [Labor and Workforce Development Agency (the Agency)] when seeking underpaid wages as well as the $50/$100 penalty," such that "his pursuit of both remedies 'involv[es] the same parties seek[ing] compensation for the same harm' and thus involves 'the same primary right' "].)  The issue is pending before the Supreme Court in Lawson, supra, review granted Mar. 21, 2018, S246711.

We agree with the conclusion of the Lawson and Zakaryan courts on this question, and conclude that a single PAGA claim seeking to recover section 558 civil penalties may not be "split" between that portion of the claim seeking an "amount sufficient to recover underpaid wages" and that portion of the claim seeking the $50 or $100 per-violation, per-pay-period assessment imposed for each wage violation. The result is that an employee bringing a PAGA claim to recover the civil penalties identified in section 558 may not be compelled to arbitrate that portion of her PAGA claim that seeks an amount sufficient to recover underpaid wages pursuant to that statute, while the rest of the claim that seeks the $50 or $100 per-pay-period per violation portion of the penalty remains in a judicial forum.  We therefore affirm the trial court's order denying the MDM defendants' motion to compel arbitration in this case.

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Thursday, August 8, 2019

Scott v. City of San Diego

In 2015, San Diego Police Department Sergeant Arthur Scott sued the City of San Diego (City), alleging race discrimination and retaliation in violation of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq. (FEHA)).  Scott rejected a $7,000 offer to compromise made by the City under Code of Civil Procedure section 998 and proceeded to trial, where the City prevailed.  The trial court awarded the City a total of $51,946.96 in costs incurred after it served its Code of Civil Procedure section 998 offer, even though the trial court had found that plaintiff's FEHA claims were not frivolous.  While this appeal was pending, the Legislature amended FEHA's cost provision statute to specifically state that, notwithstanding section 998 of the Code of Civil Procedure, a prevailing defendant may not recover attorney fees and costs against a plaintiff asserting non-frivolous FEHA claims.  (See Gov. Code, § 12965, subd. (b), as amended by Stats. 2018, ch. 955, § 5, eff. Jan. 1, 2019.)  We conclude that, with this amendment, the Legislature sought to clarify existing law, rather than to change it.  "A statute that merely clarifies, rather than changes, existing law is properly applied to transactions predating its enactment."  (Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 922 (Carter).)  We therefore apply the amended statute here and reverse the trial court's award of costs to the City. 

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Thursday, August 1, 2019

Robles v. Employment Development Department

Assuming the other Code of Civil Procedure §1021.5 criteria are met, a fee award will be appropriate except where the expected value of the litigant’s own monetary award exceeds by a substantial margin the actual litigation costs; the making of new law is not a prerequisite to a fee award under §1021.5.

Robles v. Employment Development Department - filed July 31, 2019, First District, Div. Four 
Cite as 2019 S.O.S. 3708 

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L'Chaim House, Inc. v. Div. of Labor Standards Enforcement

Plaintiffs L’Chaim House, Inc. and its owner, Cary Kopstein (collectively, L’Chaim), operate residential care homes for seniors.  L’Chaim was cited for wage and hour violations by defendant Division of Labor Standards Enforcement (DLSE).  After an unsuccessful administrative appeal, L’Chaim initiated this action by filing a petition for a writ of administrative mandamus under Code of Civil Procedure section 1094.5, which the trial court denied.

On appeal, L’Chaim claims that under the applicable Industrial Welfare Commission (IWC) wage order, it may require its employees to work “on-duty” meal periods that, unlike periods when employees are “relieved of all duty,” do not need to be at least 30 minutes long.  (IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) (hereafter Wage Order No. 5), subd. (11)(A), (E).)  We hold that, to the contrary, L’Chaim must provide meal periods of at least 30 minutes, regardless of whether they are on-duty or off-duty, under Wage Order No. 5 and the applicable statutory law.  We therefore affirm.

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Friday, July 26, 2019

West v. City of Caldwell

A homeowner’s lack of consent to the entry of her house was not clearly established under circumstances where the officer threatened to arrest the homeowner for concealing a wanted felon’s whereabouts, but the officer walked away and then returned and again asked for access to the house, and the homeowner nodded assent and handed over her key. As of August 2014, it was not clearly established that officers who thought they had permission to enter a home to apprehend a dangerous, potentially armed, and suicidal felon would exceed the scope of a homeowner’s consent to entry by employing tear gas canisters when they entered the home.

West v. City of Caldwell - filed July 25, 2019 
Cite as 2019 S.O.S. 18-35300 

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Wednesday, July 24, 2019

Newirth v. Aegis Senior Communities, LLC

Under federal law, a party seeking to prove that the right to compel arbitration has been waived must carry the burden of demonstrating knowledge of an existing right to compel arbitration; intentional acts inconsistent with that existing right; and prejudice to the person opposing arbitration from such inconsistent acts.

Newirth v. Aegis Senior Communities, LLC - filed July 24, 2019 
Cite as 2019 S.O.S. 17-17227 

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Two male LAPD officers retaliated against for supporting female officer. $8.6M. Los Angeles County.

LAPD male officers who support female's sexual harassment complaints are themselves subjected to retaliation.

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Tuesday, July 23, 2019

Vazquez v. Jan-Pro Franchising Int’l

Defendant-Appellee’s Petition for Panel Rehearing (Dkt. 93) is GRANTED. The opinion in the above-captioned matter filed on May 2, 2019, and published at 923 F.3d 575, is WITHDRAWN.

A revised disposition and an order certifying to the California Supreme Court the question of whether Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018), applies retroactively will be filed in due course.

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Monday, July 22, 2019

Wilson v. Cable News Network, Inc.

The anti-SLAPP statute can be used to screen claims alleging discriminatory or retaliatory employment actions; in such cases, the plaintiff’s allegations about the defendant’s invidious motives will not shield the claim from the same preliminary screening for minimal merit that would apply to any other claim arising from protected activity. The anti-SLAPP statute cannot apply to a defamation claim based on privately communicated remarks that were not made in connection with any issue of public significance.

Wilson v. Cable News Network, Inc. - filed July 22, 2019 
Cite as 2019 S.O.S. 3475 

For more information, go to:
http://www.beverlyhillsemploymentlaw.com/

Thursday, July 18, 2019

Brown v. City of Sacramento

Plaintiff Wendell Brown sued his employer, the City of Sacramento (City), for racial discrimination and retaliation in violation of the California Fair Employment and Housing Act (FEHA).  (Gov. Code, § 12900 et seq.)  A jury returned a verdict in Brown’s favor.  The City moved for judgment notwithstanding the verdict and a new trial.  The trial court granted the motion for judgment notwithstanding the verdict in part, finding that Brown failed to exhaust administrative remedies with respect to some of the acts found to be retaliatory.  The trial court denied the motion with respect to other acts and effectively denied the motion for a new trial.   

The City appeals from the order partially denying the motion for judgment notwithstanding the verdict, arguing the remaining retaliation and discrimination claims are time-barred and barred for failure to exhaust administrative remedies.  The City also appeals from the order partially denying the motion for a new trial, arguing that juror misconduct deprived the City of a fair trial, and the trial court prejudicially erred in admitting evidence of the purportedly unexhausted and time-barred claims.  Finding no error, we affirm.

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Wednesday, July 17, 2019

Ixchel Pharma v. Biogen

The panel certified to the California Supreme Court the following questions:

Does section 16600 of the California Business and Professions Code void a contract by which a business is restrained from engaging in a lawful trade or business with another business?

Is a plaintiff required to plead an independently wrongful act in order to state a claim for intentional interference with a contract that can be terminated by a party at any time, or does that requirement apply only to at-will employment contracts?

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Friday, July 12, 2019

Monster Energy Company v. Schechter

Here the parties to a tort action agreed to settle their lawsuit.  Their agreement was reduced to writing and included several provisions purporting to impose confidentiality obligations on the parties and their counsel.  All parties signed the agreement and their lawyers signed under a notation that they approved the written agreement as to form and content. 

Counsel allegedly violated the agreement by making public statements about the settlement and were sued, inter alia, for breach of contract.  Counsel urged they were not personally bound by the confidentiality provisions and moved to dismiss the suit under the anti-SLAPP statutes.  As to the cause of action at issue here, the trial court denied counsels’ motion.  The Court of Appeal reversed that ruling, concluding the notation meant only that counsel recommended their clients sign the document.  We conclude the notation does not preclude a factual finding that counsel both recommended their clients sign the document and intended to be bound by its provisions.

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Thursday, July 11, 2019

Blaser v. State Teachers' Retirement System

California State Teachers’ Retirement System (CalSTRS) is the state agency responsible for managing contributions made by employees and member school districts to the State Teachers’ Retirement Fund.  (See Ed. Code, § 22000 et seq.) In March 2014, William Baxter and 10 other retired teachers (the Baxter petitioners) formerly employed by the Salinas Unified High School District (District) filed a petition for a peremptory writ of administrative mandamus, naming CalSTRS as respondent and the District as real party in interest.  (See Baxter v. State Teachers’ Retirement System (2017) 18 Cal.App.5th 340, 351 (Baxter).)  The Baxter petitioners sought relief to prevent CalSTRS from continuing to reduce their monthly retirement benefit payments and to restore prior monies they claimed CalSTRS had wrongfully withheld.  (Ibid.)  CalSTRS made the deductions to recoup overpayments that had been made to the Baxter petitioners as a result of a years-long miscalculation by the District of their monthly retirement benefits.  (Id. at p. 347.)  The trial court held that the three-year statute of limitations (§ 22008, subd. (a)) barred CalSTRS from (1) recouping prior overpayments made to the Baxter petitioners by adjusting downward their future monthly benefits, and (2) reducing their future monthly benefits to reflect the correct calculation of their benefits.  (Baxter, supra, at pp. 347-348.)  In December 2017, a panel of this court reversed, concluding the trial court had erred in holding that CalSTRS’s efforts to recoup overpayments were time-barred as to all monthly retirement payments, both past and future.  (Id. at p. 349.)  This court found that the continuous accrual theory applied.  (Id. at p. 382.)  Under this theory, “ ‘a series of wrongs or injuries may be viewed as each triggering its own limitations period, such that a suit for relief may be partially time-barred as to older events but timely as to those within the applicable limitations period.  [Citation.]’  [Citation.]”  (Id. at pp. 378-379.)

The present action is a successor to the suit by the Baxter petitioners.  In February 2016—while the Baxter appeal was pending—respondents in this appeal, who are 31 retired District teachers (hereafter collectively Teachers), filed a petition for writ of mandate and a complaint for declaratory and injunctive relief against CalSTRS and the District.  Like the Baxter petitioners, Teachers challenged reductions that CalSTRS had made and continued to make to their monthly retirement benefits to recoup prior overpayments and to adjust ongoing monthly benefits to their proper amounts.  The overpayments were the result of the same miscalculation the District had made to the Baxter petitioners’ monthly retirement benefits. 

In July 2017—five months prior to this court’s decision in Baxter—the trial court granted Teachers’ petition for writ of mandate in this case, concluding that CalSTRS’s claims to reduce Teachers’ retirement benefits and collect overpayments were time-barred.  The trial court held that CalSTRS, by no later than July 30, 2010, “was ‘aware of the possibility’ ” that there were District schoolteachers other than the Baxter petitioners whose retirement benefits had been incorrectly calculated by the District, but that “CalSTRS did not take action until 2014, more than three years later.”  In holding that CalSTRS was barred from recouping prior overpayments from Teachers or from reducing future payments to correct the District’s prior miscalculation, the trial court concluded that the continuous accrual theory did not apply.

CalSTRS appealed from the judgment.  In its appeal, CalSTRS challenges the trial court’s rejection of the continuous accrual theory.  CalSTRS urges that, under Baxter, the continuous accrual theory applies, and that “CalSTRS is time-barred only as to claims relating to pension benefit payments made more than three years before CalSTRS took ‘action’ by reducing each individual teacher’s monthly benefit payment[].”

We hold—following Baxter, supra, 18 Cal.App.5th 340, which in turn relied on Supreme Court precedent, including Dryden v. Board of Pension Commrs. (1936) 6 Cal.2d 575 (Dryden)—that the continuous accrual theory applies here to the periodic pension benefit payments made to Teachers.  Thus, CalSTRS was time-barred from pursuing any claim against Teachers as to pension benefit overpayments made more than three years before CalSTRS commenced an action.  But CalSTRS is not barred by the statute of limitations from pursuing any claim concerning periodic overpayments to Teachers and adjustments to Teachers’ future monthly benefits, where the payment accrued not more than three years prior to commencement of an action.  Further, the trial court held that CalSTRS commenced an “action” by reducing Teachers’ monthly benefit payments beginning in 2014.  But we decide—as we did in Baxter—that the reduction in benefits made by CalSTRS, under the factual and procedural context presented here, did not constitute the commencement of an “action” within the meaning of the statute of limitations.  Instead, we conclude that CalSTRS constructively commenced an “action” at the time Teachers herein filed their verified petition and complaint in the superior court on February 1, 2016.  Under well-established legal principles, the filing of a complaint by the plaintiff tolls or suspends the statute of limitations as to any counterclaims existing in favor of the defendant on the date of such filing.  (Union Sugar Co. v. Hollister Estate Co. (1935) 3 Cal.2d 740, 746 (Union Sugar).)  Therefore, CalSTRS is deemed to have commenced an “action” to toll or suspend the statute of limitations when Teachers filed suit on February 1, 2016.  Accordingly, we hold that CalSTRS may assert claims to recoup overpayments for past monthly payments accruing on or after February 1, 2013, and it may adjust future monthly payments to recoup prior overpayments (on benefit payments that accrued on or after February 1, 2013) and to correct the District’s prior miscalculation of monthly benefits going forward.  We will reverse the judgment.

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Tuesday, July 9, 2019

Townley v. BJ’s Restaurants

Labor Code §2802 does not require an employer to reimburse its employees for the cost of slip-resistant shoes as necessary expenditures incurred by the employees in direct consequence of the discharge of their duties.

Townley v. BJ’s Restaurants - filed June 4, 2019, publication ordered July 8, 2019, Third District 
Cite as 2019 S.O.S. 3245 

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Wednesday, July 3, 2019

Edge v. City of Everett

The panel vacated the district court’s preliminary injunction against enforcement of the City of Everett, Washington’s Dress Code Ordinance—requiring that the dress of employees, owners, and operators of Quick-Service facilities cover “minimumbody areas”—and the amendments to the Lewd Conduct Ordinances.

Plaintiffs are owners and employees of a bikini barista stand in Everett, Washington.

The panel held that plaintiffs did not show a likelihood of success on the merits of their two Fourteenth Amendment void-for-vagueness challenges, nor on their First Amendment free expression claim.

Concerning the Lewd Conduct Ordinances, which expanded the definition of “lewd act” and also created the misdemeanor offense of Facilitating Lewd Conduct, the panel held that the activity the Lewd Contact Amendments prohibited was reasonably ascertainable to a person of ordinary intelligence. The panel also held that the Amendments were not amenable to unchecked law enforcement discretion. The panel concluded that the district court abused its discretion by holding that the plaintiffs were likely to succeed on the merits of their void-for-vagueness challenge to the Amendments.

Concerning enjoinment of the enforcement of the Dress Code Ordinance, the panel held that the vagueness principles governing the panel’s analysis of the Lewd Conduct Amendments applied with equal force to the Dress Code Ordinance. The panel concluded that the vagueness doctrine did not warrant an injunction prohibiting enforcement of the Dress Code Ordinance. As to plaintiffs’ First Amendment contention that the act of wearing almost no clothing while serving coffee in a retail establishment constituted speech, the panel held that plaintiffs had not demonstrated a “great likelihood” that their intended messages related to empowerment and confidence would be understood by those who view them. The panel concluded that the mode of dress at issue in this case was not sufficiently communicative to merit First Amendment protection. The panel also held that the district court’s application of intermediate scrutiny under the “secondary effects” line of authority was inapposite, and the City need only demonstrate that the Dress Code Ordinance promoted a substantial government interest that would be achieved less effectively absent the regulation. Because the district court did not analyze the ordinance under this framework, the panel vacated the preliminary injunction and remanded for further proceedings.

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Tuesday, July 2, 2019

Amalgamated Transit Union Local 1015 v. Spokane Transit Auth.

The panel affirmed the district court’s judgment in favor of a union in a case involving the union’s challenge to the Spokane Transit Authority (“STA”)’s decision, under its advertising policy, not to run a proposed advertisement from the union on STA’s buses.

The panel affirmed the district court’s holding that the STA unreasonably rejected the proposed ad in violation of the union’s First Amendment rights. The panel declined to accept the First and Sixth Circuit’s approaches of giving deference to a transit agency’s application of its advertising policy.

The panel held that the STA’s bus advertising program was classified as a “limited public forum” which allowed content-based restrictions as long as they were reasonable and viewpoint neutral. The panel applied the three-part test for a limited public forum to review STA’s decision to exclude the union’s ad under “public issue” advertising. First, the panel held that the policy was reasonable in light of the forum because STA’s concern with engaging in matters of public debate was related to the purpose of running an efficient and profitable transit system. Second, the panel held that STA’s standard lacked objective criteria to provide guideposts for determining what constituted prohibited “public issue” advertising. Third, the panel held that, based on an independent review of the record, STA’s application of its “public issue” advertising ban to exclude the union’s proposed ad was unreasonable.

Finally, the panel held that because the union’s ad promoted an organization that engaged in commercial activity, STA unreasonably applied its “commercial and promotional advertising” policy to reject the union’s ad.

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Friday, June 28, 2019

Rodriguez v. Nike Retail Services, Inc.

The federal de minimis doctrine—which precludes recovery for otherwise compensable amounts of time that are small, irregular, or administratively difficult to record—does not apply to wage and hour claims brought under the California Labor Code.

Rodriguez v. Nike Retail Services, Inc. - filed June 28, 2019 
Cite as 2019 S.O.S. 17-16866 

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Byrd v. State Personnel Board

Where an employee has been involuntarily terminated and subsequently reinstated pursuant to an administrative or judicial proceeding, Government Code §21198 prevents the California Public Employees' Retirement System from reinstating the employee to a different classification that has no connection to the underlying dispute.

Byrd v. State Personnel Board - filed June 26, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 3078 

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Friday, June 21, 2019

Ross v. County of Riverside

A prosecutor engaged in protected activity when he disclosed information to a governmental or law enforcement agency and to people with authority over him which he reasonably believed disclosed a violation of or noncompliance with federal and state law applicable to criminal prosecutions and prosecutors; although the prosecutor did not expressly state in his disclosures that he believed the county was violating or not complying with a specific state or federal law, Labor Code §1102.5(b) does not require such an express statement.

Ross v. County of Riverside - filed June 20, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 2914 

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Wednesday, June 19, 2019

Chavez v. Sarumi; Superior Court of California, County of Humboldt

Labor Code §98.2(b) states that an undertaking posted by an employer shall be forfeited to the employee if the employer fails to pay the amount owed within 10 days of the entry of a judgment, dismissal, or withdrawal of the appeal; §98.2(b) does not distinguish between the type of dismissal of the appeal.

Chavez v. Sarumi; Superior Court of California, County of Humboldt - filed December 24, 2018 
Cite as 2019 S.O.S. 2889 

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