tag:blogger.com,1999:blog-25805390963010239002024-03-17T19:59:06.626-07:00Beverly Hills Employment LawEli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.comBlogger752125tag:blogger.com,1999:blog-2580539096301023900.post-68626656212429757422024-03-12T16:59:00.000-07:002024-03-12T16:59:34.235-07:00Daily eBriefs - March 12, 2024Contracts
A plaintiff who worked at a California warehouse facility which received merchandise from mostly international locations belonged to a class of workers engaged in foreign or interstate commerce and was therefore exempted from the Federal Arbitration Act; an employee is not categorically excluded from the transportation worker exemption simply because he performs duties on a purely local basis.
Ortiz v. Randstad Inhouse Services - filed March 12, 2024
Cite as 2024 S.O.S. 23-55147
Full text click here >http://sos.metnews.com/sos.cgi?0324//23-55147.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-29927065819833736792024-03-11T16:41:00.000-07:002024-03-11T16:41:47.614-07:00Daily eBriefs - March 11, 2024Intellectual Property
An employer was the prevailing party on its trade secret misappropriation claim where a jury found the defendant misappropriated its trade secrets, even though the jury also found that the misappropriation did not cause the employer to suffer damages or the employee to be unjustly enriched.
Applied Medical Distribution v. Jarrells - filed March 8, 2024, Third District, Div. Eight
Cite as 2024 S.O.S. 958
Full text click here >Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-78170705013610431102024-03-11T11:00:00.000-07:002024-03-11T11:00:55.337-07:00NLRB’s Joint-Employer Rule Vacated by U.S. District Judge
NLRB’s Joint-Employer Rule Vacated by U.S. District Judge
03/09/2024 06:12 PM EST
March 09, 2024
On Friday evening, U.S. District Judge J. Campbell Barker of the Eastern District of Texas vacated the National Labor Relations Board’s recent rule on determining the standard for joint-employer status and the Board’s rescission of the 2020 joint-employer rule. Judge Barker had previously stayed the joint-employer rule until March 11, 2024.
“The District Court’s decision to vacate the Board’s rule is a disappointing setback, but is not the last word on our efforts to return our joint-employer standard to the common law principles that have been endorsed by other courts," said Chairman Lauren McFerran. "The Agency is reviewing the decision and actively considering next steps in this case.”Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-66783560115125811392024-03-05T16:55:00.000-08:002024-03-05T16:55:41.556-08:00Daily eBriefs - March 5, 2024Evidence
A district court did not abuse its discretion in granting dismissal under Federal Rule of Civil Procedure 37(e)(2) of an employment discrimination action because of intentional spoliation of electronically stored information by the plaintiff where ample circumstantial evidence showed that the plaintiff acted willfully, and the district court properly relied on an inference that her deletion of text messages with co-workers and her coordination with witnesses to delete messages was prejudicial to the defendant.
Jones v. Nathanson - filed March 6, 2024
Cite as 2024 S.O.S. 22-16465
Full text click here >http://sos.metnews.com/sos.cgi?0324//22-16465Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-22301248376536089602024-02-29T10:56:00.000-08:002024-02-29T10:56:39.069-08:00Daily eBriefs - February 28, 2024Contracts
Code of Civil Procedure §1281.98 entitled an employee to withdraw from the arbitration of his claims against his employer due to his employer’s failure to pay the arbitrator’s invoices; §1281.98 does not allow for any extension of time for the due date absent an agreement by all parties; §1281.98 is not preempted by the Federal Arbitration Act.
Hohenshelt v. Superior Court (Golden State Foods) - filed Feb. 27, 2024, Second District, Div. Eight
Cite as 2024 S.O.S. 753
Full text click here >http://sos.metnews.com/sos.cgi?0224//B327524.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-82990860560852222732024-02-20T17:03:00.000-08:002024-02-20T17:03:30.239-08:00Daily eBriefs - February 20, 2024Employment Law
The National Labor Relations Act prohibits employers from unilaterally ceasing dues checkoff after the expiration of a collective bargaining Agreement; the Taft-Hartley Act does not require specific language in the employees’ written assignments concerning revocability upon expiration of the collective bargaining agreements.
National Labor Relations Board v. Valley Health System - filed Feb. 20, 2024
Cite as 2024 S.O.S. 23-137
Full text click here >http://sos.metnews.com/sos.cgi?0224//23-137.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-26402726469684609602024-02-20T17:02:00.000-08:002024-02-20T17:02:53.507-08:00Daily eBriefs - February 20, 2024Administrative
Where a case was remanded to the National Labor Relations Board to explain better its decision that an employer may unilaterally cease union dues checkoff after the expiration of a collective bargaining agreement and the board rendered a new decision readopting its prior rule prohibiting employers from unilaterally ceasing dues checkoff after expiration of a collective bargaining agreement, the board did not exceed the scope of the mandate since the mandate did not clearly foreclose reconsideration of the board’s underlying rule regarding dues checkoff after expiration of the applicable collective bargaining agreement.
Valley Hospital Medical Center v. National Labor Relations Board - filed Feb. 20, 2024
Cite as 2024 S.O.S. 22-1804
Full text click here >about:blankEli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-54529542402130827892024-02-09T10:21:00.000-08:002024-02-09T10:21:31.346-08:00Daily eBriefs - February 8, 2024Employment
A whistleblower who invokes 18 U.S.C. §1514A must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with retaliatory intent.
Murray v. UBS Securities - filed Feb. 8, 2024
Cite as 2024 S.O.S. 22-660
Full text click here >http://sos.metnews.com/sos.cgi?0224//22-660_7648Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-11459477479231777202024-02-06T16:33:00.000-08:002024-02-06T16:33:47.512-08:00Daily eBriefs - February 6, 2024Employment
The whistleblower anti-retaliation provisions in the Sarbanes-Oxley and Dodd-Frank Acts do not apply outside the United States.
Daramola v. Oracle America - filed Feb. 6, 2024
Cite as 2024 S.O.S. 22-15959
Full text click here >Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-49933269184535397132024-01-31T12:01:00.000-08:002024-01-31T12:01:17.839-08:00Daily eBriefs - January 30, 2024Contracts
An arbitration provision in a subscriber agreement that required the parties to arbitrate all disputes and permitted the arbitrator to grant only individual relief served to waive a consumer’s right to seek public injunctive relief in any forum; an injunction that seeks to prohibit a business from engaging in unfair or deceptive practices and marketing, requires it to provide enhanced pricing transparency, and requires it to comply with our consumer protection laws, has the primary purpose and effect of protecting the public.
Ramsey v. Comcast Cable Communications - filed Dec. 29, 2023, publication ordered Jan. 29, 2024, Sixth District
Cite as 2024 S.O.S. 426
Full text click here >http://sos.metnews.com/sos.cgi?0124//H049949Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-33579408567647192652024-01-24T16:51:00.000-08:002024-01-24T16:51:43.428-08:00Daily eBriefs - January 24, 2024Contracts
If an employer successfully moved to stay a court action and proceed to arbitration, then waited more than 30 days to pay its share of the arbitrator’s initial filing fee, the employer waives its right to arbitration pursuant to Code of Civil Procedure §1281.97 et seq.
Suarez v. Superior Court (Rudolph & Sletten) - filed Jan. 24, 2024, Fourth District, Div. One
Cite as 2024 S.O.S. 326
Full text click here >http://sos.metnews.com/sos.cgi?0124//D082429.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-88922922316795413112024-01-19T15:50:00.000-08:002024-01-19T15:50:16.074-08:00Daily eBriefs - January 19, 2024Employment
A public retirement system’s resolution properly excluded compensation for accrued, but unused, hours of annual leave exceeding employees’ calendar year allowance for purposes of calculating their retirement benefits.
Ventura County Employees’ Retirement Association v. Criminal Justice Attorneys Association of Ventura County - filed Jan. 4, 2024, publication ordered Jan. 18, 2024, Second District, Div. Six
Cite as 2024 S.O.S. 261
Full text click here >http://sos.metnews.com/sos.cgi?0124//B325277.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-86968468000048494282024-01-10T16:19:00.000-08:002024-01-10T16:19:29.913-08:00Daily eBriefs - January 10, 2024Employment
A healthcare provider, who was neither an ERISA plan participant nor beneficiary, has derivative authority to enforce ERISA’s protections if it has received a valid assignment of rights.
South Coast Specialty Surgery Center v. Blue Cross of California - filed Jan. 10, 2024
Cite as 2024 S.O.S. 22-55717
Full text click here >http://sos.metnews.com/sos.cgi?0124//22-55717Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-35102636783811087352024-01-09T16:46:00.000-08:002024-01-09T16:46:29.148-08:00Daily eBriefs - January 9, 2024Employment
An arbitration provision which reflects the parties’ agreement to waive their rights to bring any claims against one other in any purported class or representative proceeding, and which provides no right or authority for any dispute to be brought, heard, or arbitrated on a class, collective, or representative basis is unenforceable because it requires plaintiffs to waive their right to bring any representative Private Attorneys General Act claim.
DeMarinis v. Heritage Bank of Commerce - filed Dec. 11, 2023, publication ordered Jan. 8, 2024, First District, Div. Three
Cite as 2024 S.O.S. 144
Full text click here >http://sos.metnews.com/sos.cgi?0124//A167091Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-6182128329135403802024-01-09T11:48:00.000-08:002024-01-09T11:48:06.500-08:00Daily eBriefs - January 8, 2024Employment
A trial court erred in denying certification of a class of employees challenging an employer’s rest break policy where the court incorrectly found the employer applied its rest break policy inconsistently during the proposed class period; certification was properly denied over the employer’s policy of checking employees’ bags were there was evidence the policy was only sporadically enforced.
Miles v. Kirkland Stores - filed January 8, 2024
Cite as 2024 S.O.S. 22-55522
Full text click here >http://sos.metnews.com/sos.cgi?0124//22-55522Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-71757363504827435662023-12-22T11:22:00.000-08:002023-12-22T11:22:17.836-08:00Daily eBriefs - December 21, 2023Torts
The state, by providing compensation to in-home providers of services to disabled and elderly Californians, does not become the employer of those providers, thus incurring vicarious liability for their torts.
Yalung v. State of California - filed Dec. 21, 2023, Fifth District
Cite as 2023 S.O.S. 3862
Full text click here >http://sos.metnews.com/sos.cgi?1223//F084367.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-78515295592126503572023-12-21T09:37:00.000-08:002023-12-21T09:37:30.014-08:00Remembering Bob Battista, Former Chairman of the NLRBDecember 20, 2023
With great sorrow, we acknowledge the passing of our former colleague, Robert (Bob) Battista.
Chairman Battista enjoyed a long and illustrious career in labor law, and served in many roles throughout his career that reflected his commitment to public service. He was appointed by President George W. Bush to the National Labor Relations Board and served as Chairman from 2002-2007.
“We are deeply saddened by the news of Bob’s death,” said Chairman Lauren McFerran. “We extend our deepest sympathies to his family. His legacy of service to the Agency will always be remembered.”
Bob is survived by his wife, children, granddaughter, and mother-in-law. His obituary can be viewed here: https://www.dignitymemorial.com/obituaries/naples-fl/robert-battista-sr-11576180.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-13306009522507378942023-12-19T15:47:00.000-08:002023-12-19T15:47:58.103-08:00Daily eBriefs - December 19, 2023Employment
The Meyers-Milias-Brown Act preempted a public healthcare district’s claims for trespass and unlawful picketing against unions representing the district’s nurses and healthcare workers.
Palomar Health v. National Nurses United (Public Employment Relations Board) - filed Dec. 18, 2023, Fourth District, Div. One
Cite as 2023 S.O.S. 3794
Full text click here >http://sos.metnews.com/sos.cgi?1223//D080962Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-42410079586384792482023-12-08T11:10:00.000-08:002023-12-08T11:10:06.276-08:00Daily eBriefs - December 7, 2023Employment
A federal appellate court has jurisdiction under 28 U.S.C. §292(a)(1) to review a communication restriction imposed on an employer who was trying to persuade employees to agree not to join any collective or class action and to encourage employees to settle their claims individually, because the restriction imposed a prior restraint and was injunctive in nature; the court lacked jurisdiction to review a trial judge’s order nullifying new employment agreements and release agreements signed in response to the employer’s communications.
Dominguez v. Better Mortgage - filed Dec. 7, 2023
Cite as 2023 S.O.S. 22-55731
Full text click here >http://sos.metnews.com/sos.cgi?1223//22-55731.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-2802850862479005122023-12-05T11:21:00.000-08:002023-12-05T11:21:00.416-08:00Region 29-Brooklyn Wins Administrative Law Judge Decision Finding Amazon Unlawfully Retaliated Against Workers for Their Union ActivitiesOn November 21, 2023, Administrative Law Judge Lauren Esposito issued a decision finding that Amazon.com Services LLC (Amazon) violated the National Labor Relations Act by dismissing employees early, altering employees’ work assignments, and subjecting employees to closer supervision in retaliation for the employees’ support for the Amazon Labor Union (the Union), or for engaging in protected concerted activities.
The decision also found Amazon unlawfully interrogated employees, disparaged the Union by using appeals to racial prejudice and derogatory racial stereotyping, and prohibited employees from distributing Union literature and confiscating Union literature from employees.
Judge Esposito ordered Amazon to cease and desist from further unlawful activity and to make the adversely affected worker whole for any loss of earnings and other benefits including any other direct or foreseeable pecuniary harms and any adverse tax consequences. Amazon must also post copies of a Notice to Employees for 60 days at its JFK8 and DYY6 facilities on Staten Island, New York, and distribute the Notice to Employees electronically.
“Workers have the right to advocate collectively for a more equitable workplace — and it is unlawful for employers to prohibit or retaliate against them for doing so,” said NLRB Region 29 Director Teresa Poor. “I’m proud of the staff of Region 29 for diligently pursuing this significant case and litigating for strong, meaningful remedies.”
The Judge’s Decision and Order was issued based on a Complaint and Notice of Hearing issued by Kathy Drew King, former Regional Director of Region 29 of the NLRB. Field Attorneys Emily Cabrera and Matthew Jackson of the NLRB’s Region 29 represented General Counsel Jennifer Abruzzo in proceedings before Judge Esposito.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-79614500174271898662023-11-30T16:00:00.000-08:002023-11-30T16:00:47.543-08:00Daily eBriefs - November 30, 2023Employment
Where employees received a monetary credit for opting out of their union- and employer-sponsored health plans, these credits were not part of the employees’ regular rate of pay, but rather were exempted as contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing health insurance under 29 U.S.C. § 207(e)(4).
Sanders v. County of Ventura - filed Nov. 30, 2023
Cite as 2023 S.O.S. 22-55663
Full text click here >http://sos.metnews.com/sos.cgi?1123//22-55663Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-84162932041990700072023-11-21T12:21:00.000-08:002023-11-21T12:21:06.071-08:00Board Extends Effective Date of Joint-Employer Rule to February 26, 2024November 16, 2023
Today, the Board extended the effective date of its recent rule on determining the standard for joint-employer status to February 26, 2024, to facilitate resolution of legal challenges with respect to the rule. The new standard will only be applied to cases filed after the rule becomes effective.
Notice of the extension will be published in the Federal Register shortly.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-76938859155657316942023-11-02T17:12:00.003-07:002023-11-02T17:12:33.364-07:00Richard Lussier Named Deputy Associate General Counsel in the Division of AdviceToday, National Labor Relations Board General Counsel Jennifer Abruzzo announced the appointment of Richard Lussier as Deputy Associate General Counsel in the Division of Advice. The Division of Advice provides guidance to the Agency’s Regional Offices regarding difficult and novel issues arising in the processing of unfair labor practice charges and coordinates the initiation and litigation of injunction proceedings in federal court under Section 10(j) and (l) of the National Labor Relations Act.
Mr. Lussier began his career at the NLRB in 1996 as an attorney in the Division of Advice. He was promoted to supervisory attorney in the Injunction Litigation Branch in 2017. In 2020, Mr. Lussier was named Assistant General Counsel for the Agency’s Injunction Litigation Branch.
A Connecticut native, Mr. Lussier graduated from the University of Connecticut in 1991, Quinnipiac University School of Law in 1995, and Georgetown University Law Center in 1997.
“Richard is a tremendous attorney who has spent his career upholding the National Labor Relations Act,” said General Counsel Abruzzo. “He’ll continue to be an asset to the Agency in his new role as he continues to effectuate the Act.”Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-34532528374903395622023-11-01T11:36:00.003-07:002023-11-01T11:36:27.400-07:00 NLRB and OSHA Announce New MOU to Strengthen Health and Safety Protections for WorkersOctober 31, 2023
Today, National Labor Relations Board General Counsel Jennifer A. Abruzzo and Assistant Secretary of Labor for the Occupational Safety and Health Administration (OSHA) at the U.S. Department of Labor Douglas L. Parker executed a Memorandum of Understanding to strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice.
Because many worker efforts to improve safety and health in their workplaces are protected under both the Occupational Health and Safety Act (OSH Act) and the National Labor Relations Act (NLRA), the NLRB and OSHA have historically engaged in cooperative efforts and have entered into formal Memoranda of Understandings to engage in interagency coordination since 1975.
Today’s agreement expands on the historic interagency coordination by enabling the NLRB and OSHA to closely collaborate by more broadly sharing information, conducting cross-training for staff at each agency, partnering on investigative efforts within each agency’s authority, and enforcing anti-retaliation provisions.
The agencies also released a resource on “Building Safe & Healthy Workplaces by Promoting Worker Voice” which provides tools and key references for employers and workers on working collaboratively to create and maintain safe workplaces, including resources on collective bargaining and compliance.
“Workplace safety can be a matter of life and death for workers and so the ability to report workplace hazards without fear of retaliation is critically important,” said General Counsel Abruzzo. “Today’s MOU will bolster protections for workers to speak out about unsafe working conditions by strengthening coordination between OSHA and the NLRB on our enforcement efforts.”
“Everyone should be able to exercise their legal rights in the workplace without fear of losing their job or other forms of punishment,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This partnership with the National Labor Relations Board will expand both of our agencies’ impact and effectiveness in protecting workers who raise concerns about workplace violations or retaliation.”
The MOU is part of the NLRB General Counsel’s interagency coordination initiative to take a whole of government approach to enforcement. As part of the initiative, the NLRB is working closely with worker protection and consumer protection agencies to ensure that the government is coacting and co-enforcing all related laws in the most effective and efficient way, which will ensure workers are fully protected while minimizing employers’ compliance burdens. Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0tag:blogger.com,1999:blog-2580539096301023900.post-14782147387959312242023-10-26T11:42:00.002-07:002023-10-26T11:42:38.536-07:00 Board Issues Final Rule on Joint-Employer StatusOctober 26, 2023
Today, the Board issued its Final Rule addressing the Standard for Determining Joint-Employer Status under the National Labor Relations Act.
Under the new standard, an entity may be considered a joint employer of a group of employees if each entity has an employment relationship with the employees and they share or codetermine one or more of the employees’ essential terms and conditions of employment, which are defined exclusively as: (1) wages, benefits, and other compensation; (2) hours of work and scheduling; (3) the assignment of duties to be performed; (4) the supervision of the performance of duties; (5) work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline; (6) the tenure of employment, including hiring and discharge; and (7) working conditions related to the safety and health of employees.
In adopting this new standard, the final rule rescinds the 2020 final rule that was promulgated by the prior Board. The new final rule more faithfully grounds the joint-employer standard in established common-law agency principles. In particular, the 2023 rule considers the alleged joint employers’ authority to control essential terms and conditions of employment, whether or not such control is exercised, and without regard to whether any such exercise of control is direct or indirect. By contrast, the 2020 rule made it easier for actual joint employers to avoid a finding of joint-employer status because it set a higher threshold that a putative joint employer must “possess and exercise . . . substantial direct and immediate control” over essential terms and conditions of employment, which has no foundation in common law. The new rule also provides extensive guidance to parties regarding their rights and responsibilities in situations where joint-employer status has been established.
“The Board’s new joint-employer standard reflects both a legally correct return to common-law principles and a practical approach to ensuring that the entities effectively exercising control over workers’ critical terms of employment respect their bargaining obligations under the NLRA,” said Chairman Lauren McFerran. “While the final rule establishes a uniform joint-employer standard, the Board will still conduct a fact-specific analysis on a case-by-case basis to determine whether two or more employers meet the standard.”
The Notice of Proposed Rulemaking was published by the Federal Register on September 6, 2022 and the comment period for initial comments was open until December 7, 2022. The Board received over 13,000 comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is December 26, 2023, and the new standard will only be applied to cases filed after the effective date.
Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.Eli Kantorhttp://www.blogger.com/profile/05421766326093941154noreply@blogger.com0