Contributors

Monday, June 17, 2019

Conger v. Co. of LA

The Los Angeles County Sheriff ’s Department (the Department) rescinded appellant Thomas L. Conger’s probationary promotion to lieutenant based on investigatory findings that Conger had failed to report a use of force several months before the Department promoted him to the probationary position.  After unsuccessfully pursuing administrative remedies, Conger filed a petition for a writ of mandate in the trial court claiming that rescinding his promotion based on alleged conduct occurring before he was elevated to his probationary position constituted a demotion or a “denial of promotion on grounds other than merit,” thus entitling him to an administrative appeal under Government Code section 3304, subdivision (b), a provision of the Public Safety Officers Procedural Bill of Rights Act (POBRA) (§ 3300 et seq.).  Conger requested that the trial court issue an order directing the County of Los Angeles (the County), as well as its Civil Service Commission, Board of Supervisors, and Chief Executive Officer (collectively, respondents) to provide him that administrative appeal. 

The trial court denied the petition, ruling that the Department properly could consider Conger’s pre-probationary conduct in rescinding his probationary promotion, and that the decision to rescind the promotion based on Conger’s failure to report a use of force was merit-based. 

We agree with the trial court that the Department’s decision to deny Conger a promotion was merit-based.  We further conclude that Conger has failed to show that the written evaluation detailing his unreported use of force will impact his career adversely in the future apart from the loss of his probationary position.  Accordingly, we affirm the judgment.

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Friday, June 14, 2019

Doe v. Superior Court

Plaintiff/petitioner Jane Doe, a student-employee in the campus police department at Southwestern College, brought claims relating to sexual harassment and sexual assault against defendants/real parties Southwestern Community College District and three District employees.  Her complaint also alleged sexual harassment of two other female District employees, which was presumably relevant to Doe's allegations because it provided notice to the District regarding similar misconduct by at least one of the involved employees, campus police officer Ricardo Suarez.  Before her noticed deposition could take place, one of those female employees, Andrea P., was contacted by one of Doe's lawyers, Manuel Corrales, Jr.  When they discovered this contact, defendants moved to disqualify Corrales for violating Rule 4.2 of the California State Bar Rules of Professional Conduct, which generally prohibits a lawyer from communicating with "a person the lawyer knows to be represented by another lawyer in the matter."  The trial court granted the motion.

Although the District offered to provide counsel for Andrea, there is no evidence that at the time of the contact she had accepted the offer or otherwise retained counsel.  Corrales does not dispute that he knew the District was represented by counsel, or that Andrea was a District employee.  Whether he violated Rule 4.2 thus turns on subdivision (b)(2), which indicates that "[i]n the case of a represented . . . governmental organization, this rule prohibits communications" with a current employee of the organization, "if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability."  (Ibid., italics added.) 

In this case, Corrales contacted Andrea to discuss evidence of other alleged acts of sexual harassment by Suarez.  Her role was as a percipient witness.  To the extent her acts were discussed, Doe is not seeking to hold the District liable for what Andrea did.  If she reported acts of sexual harassment to the District, Doe would seek to impose liability for what the District did not do in response.  Likewise, if Andrea did not report the harassment, it might be evidence that the District's sexual harassment policies were inadequate.  The purpose of Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable.  It is not designed to prevent a plaintiff's lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable.  Accordingly, we will issue a writ directing the superior court to vacate its order disqualifying Corrales as Doe's counsel in this matter.

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Tuesday, June 11, 2019

Ross v. County of Riverside

A prosecutor established a viable claim that he engaged in a protected activity for purposes of Labor Code Sec. 1102.5 where he showed that he disclosed information 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. While the plaintiff did not expressly state in his disclosures that he believed the county was violating or not complying with a specific state or federal law, Sec. 1102.5 does not require such an express statement. A plaintiff arguably has a physical impairment that limited the major life activity of working where it required him to be absent from work periodically over several months to travel to an out-of-state clinic for medical testing.

Ross v. County of Riverside - filed May 20, 2019, publication ordered June 10, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 2677 

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Monday, June 10, 2019

Beckington v. American Airlines, Inc.

Employees aggrieved by a union's breach of its duty of fair representation during collective bargaining cannot sue their employer for "colluding" in the union's breach.

Beckington v. American Airlines, Inc. - filed June 10, 2019 
Cite as 2019 S.O.S. 18-15648 

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Amalgamated Transit Union Local 276 v. San Joaquin Regional Transit District

Public Utilities Code Sec. 50150 does not authorize an election by all of a transit district's employees to fill the vacancy of a union representative on the district's retirement board.

Amalgamated Transit Union Local 276 v. San Joaquin Regional Transit District - filed May 8, 2019, publication ordered June 6, 2019, Third District 
Cite as 2019 S.O.S. 2657 

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Thursday, June 6, 2019

Bergelectric Corporation v. Secretary of Labor

A contractor was not performing "roofing work" when it installed solar panels on a roof. Substantial evidence supports a finding that workers were subject to the danger of falling where they were performing work eight to nine feet from the unprotected edge of a roof.

Bergelectric Corporation v. Secretary of Labor - filed June 6, 2019 
Cite as 2019 S.O.S. 17-72852 

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Thursday, May 30, 2019

​ Heimlich v. Shivji

Code of Civil Procedure section 998 creates an incentive for settlement.  It authorizes an award of costs to a party that makes a pretrial settlement offer when the opponent rejects the offer and obtains a lesser result at trial.  (Martinez v. Brownco Construction Co. (2013) 56 Cal.4th 1014, 1019.)  In 1997, the Legislature amended the statute to make the same incentive available in arbitrations.  (Stats. 1997, ch. 892, § 1, p. 6390; Pilimai v. Farmers Ins. Exchange Co. (2006) 39 Cal.4th 133, 139, 149.)  This case involves the procedures for seeking these costs in arbitration.

We hold a request for costs under section 998 is timely if filed with the arbitrator within 15 days of a final award.  In response to such a request, an arbitrator has authority to award costs to the offering party.  However, if an arbitrator refuses to award costs, judicial review is limited.  The Court of Appeal erred in relying on a narrow exception to those limits, for failure to consider evidence.  We reverse.

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Wednesday, May 29, 2019

Nunez v. Nevell Group, Inc.

Nevell Group, Inc. (Nevell) filed a motion to compel arbitration of the claims filed against it by former employee Xavier Nunez.  Nevell and the union to which Nunez belonged were parties to a collective bargaining agreement (CBA) that provided for arbitration of alleged violations of the relevant wage order.  The trial court denied the motion based on Nevell’s waiver of its right to compel arbitration, Nevell’s delay in filing its motion, and the prejudice Nunez would suffer if the motion were to be granted.  We affirm.

Nevell explicitly waived any right to compel arbitration by advising the trial court in writing that it would not file a motion to compel.  Nevell also impliedly waived arbitration by permitting two court-ordered deadlines, by which it was to have filed a motion to compel, to pass, and by engaging in significant discovery and other litigation activities inconsistent with the right to arbitration.  Nevell argues that he could not have filed a motion to compel arbitration before the Court of Appeal issued its opinion in Cortez v. Doty Bros. Equipment Co. (2017) 15 Cal.App.5th (Cortez).  We reject that argument because Cortez does not reflect a change in the law.

Nunez would suffer prejudice if Nevell’s motion to compel arbitration were granted at this point because Nevell’s delay in seeking to compel arbitration unnecessarily extended the time the case was pending and caused Nunez to expend resources on litigation activities inconsistent with arbitration, such as class-based discovery, the preparation of a demand package based on a class action, and preparing and serving notice to the putative class members.  Nevell delayed the filing of its motion to compel arbitration for more than three years after the complaint was filed, and more than eight months after the Cortez case was filed.

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Friday, May 24, 2019

DiRaffael v. Cal. Army Nat. Guard

Plaintiff and appellant Robert DiRaffael, appearing in propria persona, appeals from the denial of his petition for a writ of mandate directing the California Army National Guard (CAARNG) to vacate an order separating appellant, a commissioned officer, from CAARNG.  Defendants and respondents are CAARNG and four individuals named in appellant’s petition:  David S. Baldwin, California’s Adjutant General; Lawrence A. Haskins, commander of CAARNG; and John D. Ford and Dwight D. Stirling, two officers in CAARNG who purportedly reviewed and supervised the issuance of the separation order.

CAARNG ordered appellant separated pursuant to federal regulations governing selective retention of National Guard officers after 20 years of service.  Appellant argued in his writ petition that the United States Constitution reserved to the states the right to appoint and terminate the appointments of state National Guard officers, and therefore CAARNG could not rely on federal regulations to separate him.  The trial court found that state law incorporated the applicable federal regulations via provisions of the Military and Veterans Code, and thus CAARNG properly could invoke them to separate appellant.

Appellant argues that the trial court erred because (1) the United States Constitution prohibits the Legislature from incorporating the federal regulatory provisions under which CAARNG separated appellant and (2) even if the Legislature could incorporate those provisions, it has not done so.  We reject both propositions.  We further hold that appellant’s claims of purported procedural and evidentiary errors by the trial court lack merit.  Accordingly, we affirm the judgment.

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Thursday, May 23, 2019

Perez v. City of Roseville

The panel filed (1) an order withdrawing the opinion and concurring opinion filed on February 9, 2018, and ruling that a sua sponte en banc call and a motion for attorneys’ fees were moot; and (2) a new opinion and dissenting opinion.

In the new opinion, the panel affirmed the district court’s summary judgment in favor of the defendants on a former City of Roseville probationary police officer’s claims under 42 U.S.C. § 1983 for (1) violation of her rights to privacy and intimate association under the First, Fourth, and Fourteenth Amendments; and (2) deprivation of liberty Amendment.

The panel held that the individual defendants were entitled to qualified immunity on the first claim because it was not clearly established that a probationary officer’s constitutional rights to privacy and intimate association are violated if a police department terminates her due to participation in an ongoing extramarital relationship with a married officer with whom she worked, where an internal affairs investigation found that the probationary officer engaged in inappropriate personal cell phone use in connection with the relationship while on duty, resulting in a written reprimand for violating department policy.

It also was not clearly established that there was a legally sufficient temporal nexus between the individual defendants’ allegedly stigmatizing statements and the probationary officer’s termination. The individual defendants were therefore also entitled to qualified immunity on the probationary officer’s claim that the lack of a name-clearing hearing violated her due process rights.

The plaintiff also appealed the district court’s summary judgment on her claims against the City of Roseville, and the Roseville Police Department for sex discrimination in violation of Title VII and the California Fair Employment and Housing Act, but she conceded that the alleged discrimination was not actually based on her gender. Accordingly, the panel affirmed the district court. The majority rejected the dissent’s argument that it was improper to substitute a different judge following the post publication death of the original decision’s author and to change a previously published opinion except as part of an en banc decision.

The majority wrote that Carver v. Lehman, 558 F.3d 869 (9th Cir. 2009), is directly applicable here. The majority explained that because the opinion issued by the prior majority was only part way through its finalization process, a replacement judge was drawn, en banc proceedings were suspended, and the new panel had the authority to reconsider and withdraw the opinion filed by the prior panel and to substitute a different opinion.

Dissenting, District Judge Molloy wrote that the majority in the prior published opinion, Perez v City of Roseville, 882 F.3d 843 (9th Cir. 2018), correctly resolved the issues, and the majority opinion of a quorum of judges should stand for the reasons stated therein. District Judge Molloy wrote that the substitution of a judge who legitimately disagrees with the original opinion should not change the outcome except as part of an en banc court decision.

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Wednesday, May 22, 2019

NLRB Rulemaking Agenda Announced

Washington, DC —The rulemaking priorities of the National Labor Relations Board (NLRB) were released today by the OMB’s Office of Information and Regulatory Affairs. The release, based on a submission prepared at the direction of the Chairman, is included in the Unified Agenda of Federal Regulatory and Deregulatory Actions (Long Term Actions/Short Term Actions), which issues twice yearly.

The Unified Agenda discloses that the Board—in addition to proceeding with its rulemaking regarding the joint-employer standard—will consider rulemaking in the following areas:
The Board’s current representation-case procedures.
The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
The standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)).
Standards for access to an employer’s private property.
“The Agenda reflects the Board majority’s strong interest in continued rulemaking.” said Chairman John F. Ring. “Addressing these important topics through rulemaking allows the Board to consider and issue guidance in a clear and more comprehensive manner.”

The NLRB issued its Notice of Proposed Rulemaking (NPRM) regarding the standard for determining joint-employer on September 14, 2018. The period for public comment closed February 11, 2019, after the Board had received nearly 29,000 comments. “The Board is pleased with the number of comments we received in response to our proposed joint-employer rulemaking and looks forward to considering each one,” Chairman Ring stated. “The number of comments reflects the public’s strong interest in the Board providing greater clarity in this important area of the law.”

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employers and employees 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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Tuesday, May 21, 2019

Lambert v. Tesla

Affirming the district court’s order compelling arbitration, the panel held that racial discrimination claims under 42 U.S.C. § 1981 may be subjected to compulsory arbitration.

Following the reasoning of EEOC v. Luce, Forward, Hamilton & Scripps, 345 F.3d 742 (9th Cir. 2003) (en banc), addressing the arbitrability of Title VII claims, the panel held that § 1981 claims are arbitrable. Applying the Gilmer test, Luce, Forward concluded that § 118 of the Civil Rights Act of 1991, amending both Title VII and § 1981, does not bar arbitration.

Concurring, Chief Judge Thomas agreed that Luce, Forward was dispositive but wrote separately because he believes that Luce, Forward was wrongly decided. Chief Judge Thomas wrote that the statutory text of § 118, stating that arbitration should be encouraged to the extent it is appropriate and authorized by law, is ambiguous. Considering the legislative history, compelling arbitration in § 1981 actions defies Congress’s intent.

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Monday, May 20, 2019

Barber v, State Personnel Board (Department of Corrections and Rehabilitation)

Government Code Sec. 19584 does not allow an employee to recover damages for his increased tax liability for having received a lump sum back pay award.

Barber v, State Personnel Board (Department of Corrections and Rehabilitation) - filed May 17, 2019, Fourth District, Div. Two 
Cite as 2019 S.O.S. 2393 

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Thursday, May 16, 2019

County L.A. Dept. Pub. Social Svcs. v. Civil Svc. Com. L.A. County

In this case we must determine whether the Los Angeles County Civil Service Commission (Commission) has jurisdiction to rule on matters not delegated to it by the Charter of the County of Los Angeles (Charter).  We conclude the Commission’s special and limited jurisdiction does not extend to such matters.

Appellant Linda Hoa worked for the County of Los Angeles (County) for almost 30 years.  As a County employee, Hoa was subject to the County’s Civil Service Rules. In this appeal, Hoa challenges the trial court’s judgment reversing the Commission’s order entitling her to a medical reevaluation under Rule 9.07B.  In pertinent part, Rule 9.07B provides:  “An employee may request, or an appointing authority may, with the consent of the director of personnel, require an employee to have a medical reevaluation.”

The respondents on appeal are the County Department of Public Social Services (Department) and the County Chief Executive Office.  Although respondents argue the trial court correctly construed Rule 9.07B, they contend the trial court erred in finding the Commission had jurisdiction to issue its ruling in Hoa’s favor.

As explained below, although we disagree with the trial court’s ruling on jurisdiction, we agree with the trial court’s interpretation of Rule 9.07B.

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Tuesday, May 14, 2019

Le Mere v. Los Angeles Unified School District

A demurrer was properly sustained to a retaliation claim where the plaintiff did not allege any of the named defendants or non-party actors held any retaliatory animus toward plaintiff or even knew of her prior lawsuit. A trial court did not commit an abuse of discretion in denying a plaintiff leave to amend a claim when there was an unexplained delay of 14 months in raising the new cause of action. The Government Claims Act does not allow a plaintiff to "cure" her failure to file a pre-lawsuit claim by filing a post-lawsuit claim.

Le Mere v. Los Angeles Unified School District - filed April 30, 2019, publication ordered May 14, 2019, Second District, Div. Eight 
Cite as 2019 S.O.S. 2236 

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Thursday, May 9, 2019

Wojciechowski v. Kohlberg Ventures

Reversing the district court’s dismissal, the panel held that claim preclusion did not bar a claim against Kohlberg Ventures, LLC, under the Worker Adjustment Retraining and Notification Act because a settlement agreement approved by the bankruptcy court in a prior class action did not release any claims against Kohlberg.

 The panel concluded that the parties in the bankruptcy proceeding did not intend their settlement to extend to Kohlberg. Accordingly, claim preclusion did not bar plaintiff’s WARN Act claim against Kohlberg. The panel remanded the case for further proceedings.

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Monday, May 6, 2019

NLRB Region 4 Office in Philadelphia Moving to New Location, Office to be Closed to the Public Friday and Monday for Move

The National Labor Relation Board’s (NLRB) Region 4 Office in Philadelphia will be relocating from their current offices at 615 Chestnut Street to 100 Penn Square, Suite 403, Philadelphia, PA 19107, on Tuesday, October 23.  In preparation for the move, the Philadelphia office will be closed to the public on Friday, October 19 and Monday, October 22.

During this time period, the Region 22 office in Newark will handle all telephone inquiries and will docket all charges and filings directed to Region 4 through the Agency’s e-filing system.

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NLRB Returns to Long-Standing Independent-Contractor Standard

Washington, DC—Today, the National Labor Relations Board returned to its long-standing independent-contractor standard, reaffirming the Board’s adherence to the traditional common-law test.  In doing so, the Board clarified the role entrepreneurial opportunity plays in its determination of independent-contractor status, as the D.C. Circuit has recognized.

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NLRB Chairman Responds to Members of Congress Regarding Review of Joint-Employer Comments

Washington, DC — Earlier today, Chairman John F. Ring responded to a March 14, 2019 letter from Chairman Bobby Scott (D-VA) and Chairwoman Frederica Wilson (D-FL) regarding the Agency’s planned process for review of comments submitted in response to its Notice of Proposed Rulemaking (NPRM) on the joint-employer standard.

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Board Rescinds Invitation to File Briefs in Loshaw Thermal Technology

WASHINGTON, D.C. — Today, the Board issued an order granting the Charging Party Union’s request to withdraw the underlying charge in Loshaw Thermal Technology, LLC, 05-CA-158650 and rescinded its Notice and Invitation to File Briefs (NIFB) in the matter.  The Board had invited briefs in this case to determine whether Section 9(a) bargaining relationships in the construction industry may be established by contract language alone.

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Board Grants Review and Invites Briefs Regarding Jurisdiction Over Charter Schools

Washington, DC—Today, the National Labor Relations Board issued an Order in KIPP Academy Charter School, 02-RD-191760, granting review in part and inviting the filing of briefs regarding whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1) of the National Labor Relations Act (NLRA) and, therefore, modify or overrule the 2016 Hyde Leadership Charter School—Brooklyn, and Pennsylvania Virtual Charter School decisions.

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Timothy L. Watson Named Regional Director for Region 16

Washington, D.C. – National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. announced Timothy L. Watson as the new Regional Director for the Agency’s Region 16 Office in Fort Worth and its Resident Offices in Houston and San Antonio.

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John D. Doyle, Jr. Named Regional Director for Region 10

National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. announced John D.

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David Cohen Named Regional Director for Region 12

Washington, D.C. – National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. have named David Cohen the new Regional Director for the Agency’s Region 12, headquartered in Tampa, Florida.

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John J. Walsh, Jr. Named Regional Director for Region 2

On October 31, 2017, National Labor Relations Board (NLRB) Chairman Philip A. Miscimarra and General Counsel Richard F. Griffin, Jr. announced John J. Walsh, Jr.

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31 Employees Offered Reinstatement in Ellen's Stardust Diner Settlement

Ellen’s Stardust Diner, home of the world-famous singing servers in Times Square, New York City, settled a number of unfair labor practice allegations in late September 2017, just a week before a hearing on the issues was scheduled to go forward. The restaurant agreed to offer reinstatement to all thirty-one discharged employees, expunge the employee records of the alleged unlawful discharges, and post and mail notices to current and former employees. Thirteen employees have accepted offers of reinstatement.

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Friday, May 3, 2019

Vazquez v. Jan-Pro Franchising International, Inc.

The "ABC test" for determining whether workers are employees adopted by the California Supreme Court in Dynamex Operations West v. Superior Court applies retroactively.

Vazquez v. Jan-Pro Franchising International, Inc. - filed May 2, 2019 
Cite as 2019 S.O.S. 17-16096 

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Thursday, May 2, 2019

Goldstein v. California Unemployment Insurance Appeals Board

Section 1277.1 applies when a claim was filed for which the alternative base period was used, otherwise Sec. 1277 applies. Receipt of unemployment benefits during the prior benefit year does not invalidate a claim under Sec. 1277(a) and it does not preclude the application of Sec. 1277.5. Disability benefits constitute wages for purposes of Sec. 1277 regardless of whether the claimant received unemployment benefits during the prior benefit year.

Goldstein v. California Unemployment Insurance Appeals Board - filed April 30, 2019, Sixth District 
Cite as 2019 S.O.S. 2079 

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Wednesday, May 1, 2019

Muller v. Roy Miller Freight Lines, LLC

Defendant Roy Miller Freight Lines, LLC (RMFL) appeals from an order granting in part and denying in part its motion to compel its former employee, plaintiff William Muller (Muller), to arbitrate his wage and hour claims under the arbitration provision in his employment agreement.  The trial court granted RMFL’s motion on all but one cause of action, Muller’s claim for unpaid wages, and stayed the prosecution of that remaining claim pending the completion of the arbitration.

The crux of this appeal is whether the Federal Arbitration Act (FAA) applies, and more specifically, whether Muller is a transportation worker engaged in interstate commerce under 9 U.S.C. § 1 (section 1) and thus exempt from FAA coverage.  If he is exempt from FAA coverage, as the trial court held, Muller does not have to arbitrate his cause of action for unpaid wages because Labor Code section 229 (section 229) authorizes lawsuits for unpaid wages notwithstanding an agreement to arbitrate.  If the FAA applies, as RMFL contends, the FAA preempts section 229, and Muller must submit his cause of action for unpaid wages to arbitration, along with his five other causes of action. 

For the reasons set forth below, we affirm the trial court’s order.  The court correctly concluded Muller is exempt from FAA coverage under section 1.  Even though Muller did not physically transport goods across state lines, his employer is in the transportation industry, and the vast majority of the goods he transported originated outside California.  Thus, section 229 requires staying the prosecution of his cause of action for unpaid wages while the other five causes of action proceed to arbitration.  The court also correctly concluded the arbitrator, not the court, must determine whether to conduct the arbitration on an individual or classwide basis.

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Goldstein v. Cal. Unemployment Ins. Appeals Bd.

Steven M. Goldstein appeals following the denial of his petition for writ of administrative mandate to compel the California Unemployment Insurance Appeals Board (the Board) to set aside its decision denying unemployment insurance benefits.  We agree with Goldstein that the Board misapplied the governing law, thereby committing an abuse of discretion.  However, because Goldstein fails to show that the error was prejudicial, we nevertheless affirm.

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Monday, April 29, 2019

Weil v. Citizens Telecom Servs. Co.

The panel affirmed in part and reversed in part the district court’s summary judgment in favor of defendant employers in an employment discrimination action under Title VII, 42 U.S.C. § 1981, and the Washington Law Against Discrimination.

Reversing the district court’s summary judgment on a failure-to-promote claim, the panel held that the district court erred in excluding on hearsay grounds a statement proffered by the plaintiff. The panel held that, under Federal Rule of Evidence 801(d)(2)(D), hearsay does not include statements offered against a party, made by that party’s employee on a matter within the scope of that employee’s employment, so long as the statement was made while the employee was still employed by that employer. There is no requirement that the declarant still be in the same position that resulted in the matter being within the scope of the employment relationship. The panel held that, properly considering the statement as admissible evidence of pretext, the plaintiff met his burden on summary judgment.

Affirming the district court’s summary judgment on plaintiff’s termination claim, the panel held that plaintiff failed to raise a genuine dispute of material fact as to that claim because he did not present evidence that he was performing satisfactorily or that defendants treated a similarly situated employee who was not a member of plaintiff’s protected class differently.

Dissenting in part, Judge Bybee wrote that the district court properly excluded the proffered statement because it was not within the scope of the declarant’s employment when she made it after having been relieved of her hiring and promoting duties. Judge Bybee concurred in the majority opinion insofar as it affirmed summary judgment on the termination claim.

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Thursday, April 25, 2019

Melendez v. San Francisco Baseball Associates LLC

Although a collective bargaining agreement between a stadium owner and a group of security guards may be relevant to a dispute over whether the stadium failed to pay unpaid wages upon discharging the guards, the dispute turns on the interpretation of the word "discharge" under the Labor Code rather than the agreement itself. Federal employment law therefore did not require arbitration of the dispute.

Melendez v. San Francisco Baseball Associates LLC - filed April 25, 2019 
Cite as 2019 S.O.S. 1953 

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Acosta v. City National Corporation

An ERISA plan sponsor and administrator engaged in prohibited self-dealing by setting and approving its own fees from plan assets for serving as its own recordkeeper. The "reasonable compensation" exemption does not apply to prohibited self-dealing, including where a self-dealing fiduciary seeks the exemption for actual and legitimate services rendered. Where a fiduciary has engaged in self-dealing, the entire cost is the total amount of the illegal compensation that the fiduciary paid itself.

Acosta v. City National Corporation - filed April 23, 2019 
Cite as 2019 S.O.S. 17-55421

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Tuesday, April 16, 2019

Parker Drilling Management Services, Ltd. v. Newton

Whether, under the Outer Continental Shelf Lands Act, state law is borrowed as the applicable federal law only when there is a gap in the coverage of federal law, as the U.S. Court of Appeals for the 5th Circuit has held, or whenever state [California wage and hour] law pertains to the subject matter of a lawsuit and is not pre-empted by inconsistent federal law, as the U.S. Court of Appeals for the 9th Circuit has held.

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Grimm v. Vortex Marine Construction

The panel affirmed the district court’s dismissal of an action seeking enforcement of a Department of Labor order requiring payment of a worker’s future medical expenses under the Longshore and Harbor Workers’ Compensation Act.

A Department of Labor administrative law judge ordered the worker’s employer to pay for medical expenses arising from his work-related injuries and to provide treatment going forward. The worker alleged that the employer refused to pay for required medical treatment and he was therefore forced to rely on Medicare to pay his expenses. He sought enforcement of the ALJ’s order and also asserted a claim under the Medicare Secondary Payer Act, seeking double damages for the amounts Medicare paid for the services.

The panel held that the district court lacked subject matter jurisdiction to enforce the ALJ’s order because the order was not final, as required by 33 U.S.C. § 921(d). Joining other circuits, the panel held that to be “final” for purposes of § 921(d), an order must at a minimum specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts.

The panel affirmed the district court’s conclusion that the worker’s claim under the Medicare Secondary Payer Act was premature.

Concurring, Judge Watford agreed that the district court lacked jurisdiction to hear the Longshore Act claim. He wrote that 33 U.S.C. § 921(d) limits the jurisdiction of the district court to enforcing “compensation orders,” and the portion of the ALJ’s order directing the employer to pay future medical expenses was not a compensation order within the meaning of the Longshore Act.

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Castro v. Tri Marine Fish Company LLC

Central to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517 (“New York Convention”), and related federal law is the principle insulating foreign arbitral awards from second-guessing by courts. But this appeal involves an even more fundamental question— whether we are presented with a foreign arbitral award at all. In the mine run of cases, the answer is uncontroversial: when it looks, swims, and quacks like an arbitral award, it typically is. Yet, in this unusual appeal, we have an arbitral award in name only. There was no dispute to arbitrate, as the parties had fully settled their claims before approaching an arbitrator; the purported arbitration consisted of an impromptu meeting in a building lobby; and the “proceedings” disregarded the terms of three arbitration agreements between the parties and the issuing forum’s arbitral rules. We conclude that the resulting order is not an arbitral award entitled to enforcement under the Convention.

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Friday, April 12, 2019

Subcontracting Concepts (CT), LLC v. Chafie Gabriel Pereira Moreira De Melo (Department of Industrial Relations)

In a case where there was plainly a power imbalance between the parties, and a worker was required to sign an agreement containing a mandatory arbitration provision, and there is a dispute over whether the worker was an employee or an independent contractor, it is both unnecessary and inappropriate to resolve the question of whether the worker was an employee for purposes of an unconscionability determination. An arbitration clause was procedurally unconscionable where it was imposed on a worker as a condition of employment, with no opportunity to negotiate, when the worker was not fluent in English, and the agreement did not clearly state what rules would govern arbitration. An agreement was substantively unconscionable where it required a worker to bear his own costs for arbitration, barred him recovering attorney fees or costs, barred him from seeking statutory remedies, barred him from bringing a Private Attorney General Act claim, and barred him from seeing a Berman hearing.

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Savea v. YRC Inc.

An employer did not violate Labor Code Sec. 226(a)(8) by providing its fictitious business name as the employer name on its wage statements or by providing an employer address that did not contain a mail stop code or ZIP+4 Code.

Savea v. YRC Inc. - filed April 10, 2019, First District, Div. Three 
Cite as 2019 S.O.S. 1760 

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Thursday, April 11, 2019

Diaz v. Sohnen Enterprises

When a worker continues her employment after notification that an agreement to arbitration is a condition of continued employment, that employee has impliedly consented to the arbitration agreement. An employer can unilaterally change the terms of an at-will worker's employment agreement as long as it provides notice of the change, and the alteration does not violate a statute or breach an implied or expressed contractual agreement. An adhesive agreement to arbitrate can still be enforced in the absence of surprise or sharp practices demonstrating substantive unconscionability.

Diaz v. Sohnen Enterprises - filed April 10, 2019, Second District, Div. Seven 
Cite as 2019 S.O.S. 1722 

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Monday, April 8, 2019

Martinez v. Public Employees' Retirement System

The law remains that a terminated for-cause employee can still qualify for disability retirement when the conduct which prompted the termination was the result of the employee's disability or if she had a "matured right" to a disability retirement prior to the conduct which prompted the termination. The Board of Administration of the California Public Employees Retirement System reasonably extended this precedent to establish a rule that when an employee settles a pending termination for cause and agrees not to seek reemployment, this is "tantamount to a dismissal", thus precluding a disability retirement.

Martinez v. Public Employees' Retirement System - filed April 4, 2019, First District, Div. Two 
Cite as 2019 S.O.S. 1659 

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Thursday, April 4, 2019

Ryze Claim Solutions LLC v. Superior Court

Petitioner and defendant Ryze Claim Solutions LLC (Ryze) seeks writ relief from an order of the trial court denying its motion to dismiss or stay the lawsuit filed by its former employee Real Party in Interest and plaintiff Jerome Nedd on improper forum grounds.  We shall issue the writ.

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Monday, April 1, 2019

Bravo v. RADC Enterprises, Inc.

This employment case concerns a choice-of-law clause in an arbitration agreement.  The trial court interpreted the clause to mean some but not all individual employment claims must be arbitrated.  We conclude all of them must be arbitrated.

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Walnut Creek Police Officers' Assn. v. City of Walnut Creek

The petitions for writ of supersedeas filed in these consolidated matters are denied. Appellants have not shown that “substantial questions will be raised on appeal.” (Smith v. Selma Community Hospital (2010) 188 Cal.App.4th 1, 18.) The appeals center around amendments enacted this year to Penal Code section 832.7 that expand public access to certain peace officer records maintained by a state or local agency. (See Pen. Code, § 832.7, subd. (b)(1).) Appellants assert that applying the 2019 amendments to compel disclosure of records created prior to 2019 constitutes an improper retroactive application of the new law. For the reasons stated by the trial court, appellants’ argument is without merit. Although the records may have been created prior to 2019, the event necessary to “trigger application” of the new law—a request for records maintained by an agency—necessarily occurs after the law’s effective date. (People v. Grant (1999) 20 Cal.4th 150, 157 [“the critical question for determining retroactivity usually is whether the last act or event necessary to trigger application of the statute occurred before or after the statute's effective date”].) The new law also does not change the legal consequences for peace officer conduct described in pre-2019 records. (See ibid. [application of new law is retroactive “only if it attaches new legal consequences to, or increases a party’s liability for, an event, transaction, or conduct that was completed before the law’s effective date”].) Rather, the new law changes only the public's right to access peace officer records.

The temporary stay issued by this court on February 15, 2019, will expire at 5:00 p.m. on March 19, 2019.

Interveners’ motion for calendar preference and expedited briefing is denied.

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Friday, March 29, 2019

Zakaryan v. The Men's Warehouse, Inc.

If an employee brings a solitary Private Attorneys General Act claim, a court cannot send the employee to arbitrate his individual damage claim and retain jurisdiction to award the additional, statutorily prescribed amounts.

Zakaryan v. The Men's Warehouse, Inc. - filed March 28, 2019, Second District, Div. Two 
Cite as 2019 S.O.S. 1499 

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Thursday, March 28, 2019

Salgado v. Carrows Restaurants Inc.

An agreement to arbitrate "any claim, dispute, and/or controversy" that an employee may have against her employer was applicable to the employee's claim of discrimination. An arbitration agreement may be applied retroactively to transactions which occurred prior to execution of the arbitration agreement.

Salgado v. Carrows Restaurants Inc. - filed Feb. 26, 2019, publication ordered March 25, 2019, Second District, Div. Six 
Cite as 2019 S.O.S. 1332 

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Kisor v. Wilkie

QUESTION PRESENTED:

Auer v. Robbins, 519 U.S. 452 (1997), and Bowles Seminole Rock & Sand Co., 325 U.S. 410 (1945), direct courts to defer to an agency's reasonable interpretation of its own ambiguous regulation. Separately, in Brown v. Gardner, 513 U.S. 115, 118 (1994), the Court held that "interpretive doubt is to be resolved in the veteran's favor.”

Petitioner, a Marine veteran, seeks disability benefits for his service-related posttraumatic stress disorder (PTSD). While the Department of Veterans Affairs (VA) agrees that petitioner suffers from service-related PTSD, it has refused to award him retroactive benefits. The VA's decision turns on the meaning of the term "relevant" as used in 38 C.F.R. § 3.156(c)(l).

Below, the Federal Circuit found that petitioner and the VA both offered reasonable constructions of that term. On that basis alone, the court held that the regulation is ambiguous, and-invoking Auer- deferred to the VA's interpretation of its own ambiguous regulation. The questions presented are:

1. Whether the Court should overrule Auer and Seminole Rock.

2. Alternatively, whether Auer deference should yield to a substantive canon of construction.

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Wednesday, March 27, 2019

Salgado v. Carrows Restaurants Inc

An agreement to arbitrate "any claim, dispute, and/or controversy" that an employee may have against her employer was applicable to the employee's claim of discrimination. An arbitration agreement may be applied retroactively to transactions which occurred prior to execution of the arbitration agreement.

Salgado v. Carrows Restaurants Inc. - filed Feb. 26, 2019, publication ordered March 25, 2019, Second District, Div. Six 
Cite as 2019 S.O.S. 1332 

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Tuesday, March 26, 2019

Boling v. Public Employment Relations Bd.

This case arises from a decision by the Public Employment Relations Board (PERB) finding that the City of San Diego (City) violated the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; Act) when the City's mayor made a policy decision to advance a citizens' pension reform initiative (Initiative) without meeting and conferring with the affected employees' unions (Unions).  The California Supreme Court upheld PERB's finding that the mayor's actions violated the City's meet and confer obligations.  (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 913, 919 (Boling).)  The Supreme Court then remanded the matter to this court to "address the appropriate judicial remedy for the violation."  (Id. at p. 920.)  We also consider previously unaddressed challenges to PERB's administrative remedies.

As we shall explain, we decline the Unions' request to invalidate the Initiative as a judicial remedy because we conclude the Initiative's validity is more appropriately addressed in a separate quo warranto proceeding.  We further conclude we must modify PERB's compensatory and cease-and-desist remedies to prevent the remedies from impermissibly encroaching upon constitutional law, statutory law, and policy matters involving initiatives, elections, and the doctrine of preemption that are unrelated to the Act.  (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 144, 147 [122 S.Ct. 1275, 152 L.Ed.2d 271] (Hoffman Plastic) [a labor relations board's administrative remedies may not encroach upon statutes and policies unrelated to the board's enabling act].)

Specifically, we modify PERB's compensatory remedy to order the City to meet and confer over the effects of the Initiative and to pay the affected current and former employees represented by the Unions the difference, plus seven percent annual interest, between the compensation, including retirement benefits, the employees would have received before the Initiative became effective and the compensation the employees received after the Initiative became effective.  The City's obligation to comply with the compensatory remedy extends until completion of the bargaining process, including the exhaustion of impasse procedures, if an impasse occurs.  We modify PERB's cease-and-desist remedy to order the City to cease and desist from refusing to meet and confer with the Unions and, instead, to meet and confer with the Unions upon the Unions' request before placing a charter amendment on the ballot that is advanced by the City and affects employee pension benefits and/or other negotiable subjects.  As so modified, we affirm PERB's decision.

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Friday, March 22, 2019

NLRB Chairman Responds to Members of Congress Regarding Review of Joint-Employer Comments

Washington, DC — Earlier today, Chairman John F. Ring responded to a March 14, 2019 letter from Chairman Bobby Scott (D-VA) and Chairwoman Frederica Wilson (D-FL) regarding the Agency’s planned process for review of comments submitted in response to its Notice of Proposed Rulemaking (NPRM) on the joint-employer standard.

A copy of Chairman Ring’s letter is available here.

Established in 1935, the National Labor Relations Board is an independent federal agency that protects employers and employees 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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Tuesday, March 19, 2019

Garcia v. Salvation Army

The religious organization exemption in Title VII of the Americans with Disabilities Act is not jurisdictional and is subject to procedural forfeiture. The exemption does not apply only to hiring and firing decisions, but rather extends to both retaliation and hostile work environment claims.

Garcia v. Salvation Army - filed March 18, 2019 
Cite as 2019 S.O.S. 16-16827 

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Friday, March 15, 2019

Synergy Project Management, Inc. v. City and County of S.F.

The Subletting and Subcontracting Fair Practices Act (Pub. Contract Code, § 4100 et seq.) (Act), which governs public works projects, was enacted to protect the public and subcontractors from bidding practices that “often result in financial difficulties for subcontractors and poor workmanship on public improvements.” (Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 660 (Cal-Air Conditioning).)  To this end, section 4107, subdivision (a) (section 4107(a)) requires a prime contractor to obtain the consent of the awarding authority before replacing a subcontractor listed in the original bid, and it limits the awarding authority’s ability to consent to specified circumstances.  If the original subcontractor objects to being replaced, section 4107(a) requires the awarding authority to hold a hearing “on the prime contractor’s request for substitution.”

In this case, the City and County of San Francisco (City) entered a contract with prime contractor Ghilotti Bros., Inc. (Ghilotti) for a major renovation of Haight Street.  Consistent with its accepted bid, Ghilotti entered a contract with subcontractor Synergy Project Management, Inc. (Synergy) for Synergy to perform excavation and utilities work.  After Synergy broke five gas lines and engaged in other unsafe behavior, the City invoked a provision of its contract with Ghilotti to direct Ghilotti to remove Synergy from the project and substitute a new subcontractor.  Under protest, Ghilotti terminated Synergy and identified two potential replacement contractors to the City, and Synergy objected to being replaced.  A hearing was held under section 4107(a), and the hearing officer determined that Synergy’s poor performance established a statutory ground for substitution. 

Synergy and Ghilotti each filed a petition for a writ of administrative mandate in the trial court.  Abandoning any challenge to the determination that Synergy’s performance justified substitution, they contended the hearing officer lacked jurisdiction because Ghilotti had not made a “request” for substitution within the meaning of either section 4107(a) or the relevant provision of the City-Ghilotti contract.  The court agreed and granted the petitions.  On appeal, the City claims the court’s ruling was erroneous, and we agree.  Even though the statute contemplates that the prime contractor will normally be the party to seek substitution, the procedure followed here “complied in substance with every reasonable objective of the statute.”  (Titan Electric Corp. v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 188, 208 (Titan).)  Thus, the hearing officer had jurisdiction under the Act to issue a decision, and we need not address whether jurisdiction separately existed under the City-Ghilotti contract. Accordingly, we reverse.

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Thursday, March 14, 2019

Myers v. Raley's

A trial court's denial of class certification which did not provide reasons for the finding that common issues did not predominate must be overturned when there is a possibility the trial court may have focused on the individual issues concerning the right to recover damages rather than the putative class theory of recovery. When the putative class alleged their employer maintained uniform policies and/or practices denying them travel time while they are under the employer's control, the issue is not whether different managers exercised control in a myriad of ways with different categories of workers, but whether the employer had the right to control them.

Myers v. Raley's - filed Feb. 13, 2019, publication ordered March 12, 2019, Third District 
Cite as 2019 S.O.S. 1176 

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Monday, March 11, 2019

Su v. Stephen S. Wise Temple

This case was brought by plaintiff and appellant Labor Commissioner Julie Su (Commissioner) on behalf of preschool teachers employed by defendant and respondent Stephen S. Wise Temple (Temple). The Commissioner alleged that the Temple violated various provisions of the Labor Code by failing to provide its preschool teachers with rest breaks, uninterrupted meal breaks, and overtime pay. The trial court granted summary judgment in favor of the Temple, concluding the Commissioner’s claims were barred by the “ministerial exception”—a constitutional doctrine that provides a complete defense to certain employment claims brought against religious institutions by or on behalf of persons classified as ministerial employees.

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology. Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception. We therefore reverse the judgment and remand for further proceedings.

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Tuesday, March 5, 2019

BNSF Railway Co. v. Loos

Respondent Michael Loos sued petitioner BNSF Railway Company under the Federal Employers’ Liability Act (FELA) for injuries he received while working at BNSF’s railyard. A jury awarded him $126,212.78, ascribing $30,000 of that amount to wages lost during the time Loos was unable to work. BNSF asserted that the lost wages constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA) and asked to withhold $3,765 of the $30,000 to cover Loos’s share of the RRTA taxes. The District Court and the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA.

Held: A railroad’s payment to an employee for working time lost due to an on-the-job injury is taxable “compensation” under the RRTA. Pp. 2–14.

(a) In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The RRTA funds the program by imposing a payroll tax on both railroads and their employees, referring to the railroad’s contribution as an “excise” tax, 26 U. S. C. §3221, and the employee’s share as an “income” tax, §3201. The Railroad Retirement Act (RRA) entitles railroad workers to various benefits. Taxes under the RRTA and benefits under the RRA are meas-ured by the employee’s “compensation,” which both statutes define as “any form of money remuneration paid to an individual for services rendered as an employee.” §3231(e)(1); 45 U. S. C. §231(h)(1).

The statutory foundation of the railroad retirement system mirrors that of the Social Security system. The Federal Insurance Contributions Act (FICA) taxes employers and employees to fund benefits distributed pursuant to the Social Security Act (SSA). Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compensation.” The term “wages” means “all remuneration” for “any service, of whatever nature, performed . . . by an employee.” 26 U. S. C. §3121(a)–(b) (FICA); see 42 U. S. C. §§409(a), 410(a) (SSA). Pp. 2–4.

(b) Given the textual similarity between the definitions of “compensation” and “wages,” the decisions on the meaning of “wages” in Social Security Bd. v. Nierotko, 327 U. S. 358, and United States v. Quality Stores, Inc., 572 U. S. 141, inform this Court’s comprehension of the RRTA term “compensation.” In Nierotko, the Court held that “wages” embraced pay for active service as well as pay received for periods of absence from active service, 327 U. S., at 366, and concluded that backpay for time lost due to “the employer’s wrong” counted as “wages,” id., at 364. In Quality Stores, the Court held that severance payments qualified as “wages” taxable under the FICA. 572 U. S., at 146–147. In line with these decisions, the Court holds that “compensation” under the RRTA encompasses not simply pay for active service but also pay for periods of absence from active service—provided that the remuneration in question stems from the “employer-employee relationship.” Nierotko, 327 U. S., at 366.

Damages awarded under the FELA for lost wages fit comfortably within this definition. See BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for working time lost due to the employer’s wrongdoing. FELA damages for lost wages, like backpay, are “compensation” taxable under the RRTA. Pp. 4–7.

(c) The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for active service, but this reading cannot be reconciled with Nierotko and Quality Stores. In addition, the RRTA’s pinpointed exclusions for certain types of payments for time lost signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” Pp. 7–10.

(d) Loos contends that “compensation” does not include payments made to compensate for an injury. This reading, however, is at odds with Nierotko, which held that “wages” included backpay awarded to redress “the loss of wages” occasioned by “the employer’s wrong.” 327 U. S., at 364.

Loos also argues that the exclusion of personal injury damages from “gross income” for federal income tax purposes, see 26 U. S. C. §104(a)(2), should carry over to the RRTA’s tax on the “income” of railroad workers. The RRTA, however, uses the term “income” merely to distinguish the “income” tax on an employee from the matching “excise” tax on a railroad. Further, Congress specified not “gross income” but employee “compensation” as the tax base for RRTA taxes. Congress did not exclude personal injury damages from “compensation.” Pp. 10–14.

865 F. 3d 1106, reversed and remanded.

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

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Monday, March 4, 2019

Cal Fire Local 2881 v. California Public Employers' Retirement System

A public employee's ability to purchase additional retirement service credits was not a term and condition of public employment protected from impairment by the constitutional contract clause. The opportunity to purchase such credit therefore could be altered or eliminated at the discretion of the Legislature.

Cal Fire Local 2881 v. California Public Employers' Retirement System - filed March 4, 2019 
Cite as 2019 S.O.S. 1030

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Friday, March 1, 2019

NLRB Sets Standards Affecting Beck Objectors Union Lobbying Expenses Are Not Chargeable

Washington, DC—Nonmember objectors cannot be compelled to pay for union lobbying expenses, the National Labor Relations Board ruled today. The Board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union’s representational function, and therefore lobbying expenses are not chargeable to Beck objectors. The ruling relies on relevant judicial precedent holding that a union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions.

The Board majority also held that it is not enough for a union to provide objecting nonmembers with assurances that its compilation of chargeable and nonchargeable expenses has been appropriately audited. Citing the “basic considerations of fairness” standard adopted by the Supreme Court, the Board held that a union must provide independent verification that the audit had been performed. Failure to do so violates the union’s duty of fair representation.

The case, United Nurses & Allied Professionals (Kent Hospital), is the Board’s long-awaited decision affecting certain rights of nonmember objectors under the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988). In that decision, the Supreme Court held that private-sector nonmember employees subject to union security who object to the expenditure of their agency fees for activities other than collective bargaining, contract administration, or grievance adjustment can only be compelled to pay that portion of the agency fee necessary to the union’s performance of “the duties of an exclusive representative of employees in dealing with the employer on labor-management issues.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.

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Board Extends Time for Filing Amicus and Responsive Briefs Regarding Jurisdiction Over Charter Schools

Washington, DC — On February 4, 2019, the National Labor Relations Board invited the filing of briefs in KIPP Academy Charter School, 02-RD-191760, to allow parties and interested amici an opportunity to address whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1) of the National Labor Relations Act (NLRA), and, therefore, modify or overrule the 2016 Hyde Leadership Charter School—Brooklyn, and Pennsylvania Virtual Charter School decisions.

To aid in the consideration of the issues raised in the above-named case, the Board has now extended the time for filing amicus and responsive briefs in this matter (the deadline for filing briefs on review was previously extended). Parties now have until March 6, 2019 to file briefs on review and interested amici now have until March 20, 2019 to file amicus briefs. The deadline for parties to file responsive briefs has been extended to April 3, 2019.

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Laker v. Bd. of Trustees of the Cal. State Univ.

Dr. Jason Laker (Laker) sued the Board of Trustees of the California State University (University) and Mary McVey for defamation and retaliation arising from a series of internal investigations conducted by the University.  The defendants filed an anti-SLAPP motion to strike the complaint under Code of Civil Procedure section 425.16, which the trial court denied on the ground that the defendants failed to show that Laker’s defamation and retaliation claims arose from any activity protected by section 425.16.  For the reasons explained below, we agree with the University and McVey that the trial court erred in that finding as to Laker’s defamation claim.  However, we affirm the trial court’s denial of the University’s motion to strike Laker’s retaliation claim, although we strike one allegation contained in that claim.

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Thursday, February 28, 2019

Kaanaana v. Barrett Business Services, Inc.

The petition for review is granted. The issue to be briefed and argued is limited to the following: Whether the phrase "work done for irrigation, utility, reclamation, and improvement districts, and other districts of this type" in Labor Code section 1720, subdivision (a)(2) of California's Prevailing Wage Law (Labor Code §§1720 et. seq.) should be interpreted to cover any type of work regardless of its nature, funding, purpose or function, including belt sorting at recycling facilities. The request for an order directing depublication of the opinion is denied. Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar, Kruger and Groban, JJ.  Review granted/brief due.

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Tuesday, February 26, 2019

Wadler v. Bio-Rad Laboratories, Inc.

The statutory provisions of the Foreign Corrupt Practices Act are not "rules or regulations of the Securities and Exchange Commission" for purposes of Sec. 806 of the Sarbanes-Oxley Act.

Wadler v. Bio-Rad Laboratories, Inc. - filed Feb. 26, 2019 
Cite as 2019 S.O.S. 17-16193 

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Marquez v. City of Long Beach

Plaintiffs Wendy Marquez and Jasmine Smith appeal from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer filed by the City of Long Beach (City) to plaintiffs’ class action complaint.  Plaintiffs alleged causes of action for violations of the Labor Code and the Industrial Welfare Commission’s (IWC) wage orders based on the City’s alleged failure to pay workers employed as pages and recreation leader specialists wages at or above the statewide minimum wage.

The trial court found the authority to determine employee compensation was reserved to the City as a charter city under article XI, section 5 of the California Constitution, and the state could not impose a minimum wage for the City’s employees because the City’s compensation of its employees was not a matter of statewide concern.  On appeal, plaintiffs contend the Legislature’s interest in the provision of a living wage to all workers is a matter of statewide concern, and the minimum wage requirement is appropriately tailored to address that concern.

This case pits article XI, section 5 of the state Constitution, which grants to charter cities authority over municipal affairs, including “plenary authority” to provide for the compensation of city employees, against article XIV, section 1 of the state Constitution, which provides “[t]he Legislature may provide for minimum wages and for the general welfare of employees . . . .”  Despite the century-long history of the home rule doctrine (see Popper v. Broderick (1899) 123 Cal. 456 (Popper)) and the state’s regulation of the minimum wage (see Stats. 1913, ch. 324, pp. 632-637), the Supreme Court has not squarely resolved whether charter cities must comply with state law minimum wage requirements.

We conclude legislation setting a statewide minimum wage, generally applicable to both private and public employees, addresses the state’s interest in protecting the health and welfare of workers by ensuring they can afford the necessities of life for themselves and their families.  Thus, the Legislature may constitutionally exercise authority over minimum wages, despite the constitutional reservation of authority in charter cities to legislate as to their municipal affairs.  We reverse.

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Yovino v. Rizo

The petition in this case presents the following question: May a federal court count the vote of a judge who dies before the decision is issued? A judge on the United States Court of Appeals for the Ninth Circuit, the Honorable Stephen Reinhardt, died on March 29, 2018, but the Ninth Circuit counted his vote in cases decided after that date. In the present case, Judge Reinhardt was listed as the author of an en banc decision issued on April 9, 2018, 11 days after he passed away. By counting Judge Reinhardt’s vote, the court deemed Judge Reinhardt’s opinion to be a majority opinion, which means that it constitutes a precedent that all future Ninth Circuit panels must follow. See United States v. Caperna, 251 F. 3d 827, 831, n. 2 (2001). Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed.

Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference. Was that lawful?
….
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity. We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.

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Monday, February 25, 2019

Correia v. NB Baker Electric, Inc.

California Supreme Court's 2014 decision on Iskanian v. CLS Transportation Los Angeles, LLC--which held unenforceable agreements to waive the right to bring Private Attorney General Act of 2004 representative actions in any forum--retains vitality notwithstanding the U.S. Supreme Court's 2018 opinion in Epic Systems Corp. v. Lewis.

Correia v. NB Baker Electric, Inc. - filed Feb. 25, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 872 

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Wednesday, February 20, 2019

Fierro v. Landry's Restaurant, Inc.

Plaintiff Jorge Fierro filed the underlying action against defendant Landry's Restaurants, Inc., seeking remedies for what Fierro alleges to be Landry's Restaurants's violations of specified California labor laws and wage orders.  Fierro asserts claims on behalf of himself and on behalf of a class of individuals that he alleges is similarly situated.  Landry's Restaurants demurred to the complaint on the basis that each of the causes of action is barred by the applicable statute of limitations.

As to Fierro's individual claims, the trial court overruled the demurrer, concluding that the statute of limitations defense did not appear affirmatively on the face of the complaint.  As to the class claims, the trial court sustained the demurrer without leave to amend on the basis that a prior class action with identical class claims against Landry's Restaurants had been dismissed for failure to bring the case to trial in five years as required by Code of Civil Procedure sections 583.310 and 583.360. Under the "death knell" doctrine, Fierro appeals from that portion of the order sustaining without leave to amend the demurrer to the class claims.

Previously, we filed an opinion reversing the order on the basis that the applicable statutes of limitations on the class claims had been tolled.  However, the California Supreme Court granted review and transferred the matter to this court with directions to vacate the opinion and to reconsider the cause in light of the United States Supreme Court's opinion in China Agritech, Inc. v. Resh (2018) __ U.S. __ [138 S.Ct. 1800] (China Agritech)—an opinion issued following the filing of our opinion but before issuance of the remittitur.  After vacating our decision, we requested and received supplemental briefing from the parties as to the potential application of China Agritech to the issues presented in this appeal.

China Agritech, supra, __ U.S. __ [138 S.Ct. 1800] holds that, upon denial of class certification, a putative class member may not commence a new class action asserting the same claim, if the statute of limitations on the claim has run.  (Id. at p. __ [138 S.Ct. at p. 1804].)  The Court reasoned that the " 'efficiency and economy of litigation' " which support tolling the statutes of limitations for individual claims during the pendency of the initial class action do not support tolling the statutes of limitations for the class claims.  (Id. at p. __ [138 S.Ct. at p. 1806].) 

As we explain, the superior court's stated basis for sustaining the demurrer and dismissing the class claims is erroneous.  As we further explain, in determining whether the statutes of limitations bar Fierro's class claims, we will conclude that there is no basis on which to apply equitable (or any other form of) tolling.  Although that determination will result in at least some of the class's claims being time-barred, on the present record, we cannot say that all of the class's claims are untimely.  Thus, we will reverse the order sustaining Fierro's demurrer without leave to amend and remand for further proceedings in which the trial court can decide, on a more developed record, issues related to class certification and/or timeliness of class claims.

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Mijares v. Orange County Employees' Retirement System

A county retirement system's assessment for additional funds to pay a group of retired employees their promised benefits does not represent a retroactive liability. Government Code Sec. 31453.5 clearly gives a county retirement system broad authority to impose assessments against an employer to cover an unfunded liability, as long the employer's current and retired employees are members of the county retirement system.

Mijares v. Orange County Employees' Retirement System - filed Jan. 23, 2019, publication ordered Feb. 15, 2019, Fourth District, Div. Three 

Cite as 2019 S.O.S. 792 

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Friday, February 15, 2019

Wilmot v. Contra Costa Co. Empl. Retirement

The petition for review is granted. Further action in this matter is deferred pending consideration and disposition of a related issue in Alameda County Deputy Sheriffs' Assn. v. Alameda County Employees' Retirement Assn., S247095 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar, Kruger and Groban, JJ. Review granted/holding for lead case.

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Jiminez-Sanchez v. Dark Horse Express, Inc.

Substantial evidence supports the trial court's finding that individual issues predominate in a proposed class action for claims of under payment where the plaintiffs did not show any uniform agreement between the defendant and the truck drivers who received piece-rate payments, nor any evidence of what tasks were included in the piece-rate compensation for the different categories of drivers who worked for defendant. The trial court erred in failing to consider the issue of compensation for rest breaks separately from the issue of compensation for "nonproductive time". A trial court has discretion to consider whether the remaining members of a proposed class were sufficiently numerous to justify class treatment, after determining individual questions predominated with respect to the claims of one subclass and the defense to them.

Jiminez-Sanchez v. Dark Horse Express, Inc. - filed Jan. 16, 2019, publication ordered Feb. 14, 2019, Fifth District 
Cite as 2019 S.O.S. 744 

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