Salas v. Sierra Chemical Co

Senate Bill No. 1818, which extends state law employee protections and remedies to all workers "regardless of immigration status," is not preempted by federal immigration law except to the extent it authorizes an award of lost pay damages for any period after the employer’s discovery of an employee’s ineligibility to work in the United States. Doctrines of after-acquired evidence and unclean hands are not complete defenses to a worker’s claims under California’s Fair Employment and Housing Act, although they do affect the availability of remedies. FEHA generally will not permit a plaintiff to recover damages incurred after the employer learned of facts that would have resulted in lawful termination, and a trial court may consider unclean hands in fashioning an equitable remedy.
     Salas v. Sierra Chemical Co. - filed June 26, 2014
     Cite as 2014 S.O.S. 3235
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Fifth Third Bancorp v. Dudenhoeffer

Employee Stock Ownership Plan fiduciaries are not entitled to any special presumption of prudence with respect to investment decisions. They are subject to the same duty of prudence that applies to ERISA fiduciaries in general under 29 U.S.C. Sec. 1104(a)(1)(B), except that they need not diversify the fund’s assets as provided by Sec. 1104(a)(2). Whether a complaint--alleging that ESOP fiduciaries breached their duties of prudence--states a claim must be determined by applying the "plausibility" standard of pleading discussed in Ashcroft v. Iqbal, 556 U. S. 662. Where a stock is publicly traded, allegations that a fiduciary should have recognized on the basis of publicly available information that the market was overvaluing or undervaluing the stock are generally implausible and thus insufficient to state a claim. A complaint for breach of the duty of prudence must plausibly allege an alternative action that the defendant could have taken, that would have been legal, and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.
     Fifth Third Bancorp v. Dudenhoeffer - filed June 25, 2014
     Cite as 2014 S.O.S. 12-751_d18e

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Iskanian v. CLS Transportation Los Angeles, LLC

State’s refusal to enforce employee’s waiver of the right to bring arbitration claims on behalf of a class, on grounds of unconscionability, is preempted by the Federal Arbitration Act. Holding to the contrary in Gentry v. Superior Court (2007) 42 Cal. 4th 443 has been abrogated by recent U.S. Supreme Court precedent. Class action waiver in employment agreement was not unlawful under the National Labor Relations Act, where the agreement did not ban all collective activity to vindicate wage claims, since employees were not barred from filing joint claims or from seeking the assistance of a lawyer or union or of other workers, and arbitrator was not barred from consolidating claims of multiple employees or from awarding relief to a group of employees. Employer did not waive its right to arbitrate by withdrawing its motion to compel arbitration after Gentry, since it was not required to anticipate that Gentry would be abrogated. Arbitration agreement requiring an employee as a condition of employment to give up the right to bring representative action under the Labor Code Private Attorneys General Act of 2004 in any forum is contrary to public policy, and the FAA’s goal of promoting arbitration as a means of private dispute resolution does not preclude the state from deputizing employees to prosecute Labor Code violations on the state’s behalf, so FAA does not preempt state law that prohibits waiver of PAGA representative actions in an employment contract. PAGA does not violate the principle of separation of powers under the California Constitution.
     Iskanian v. CLS Transportation Los Angeles, LLC - filed June 23, 2014
     Cite as 2014 S.O.S. 3112

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Johnmohammadi v. Bloomingdales’s, Inc

Arbitration agreement, including provision that if employee did not opt out of the "benefits of Arbitration" within 30 days, she would be barred from pursuing employment-related claims on a collective basis in any forum, judicial or arbitral, was valid, and under the Federal Arbitration Act was required to be enforced according to its terms. Having freely elected to arbitrate employment-related disputes on an individual basis, without interference from employer, employee could not claim that enforcement of the arbitration agreement violated either the Norris-LaGuardia Act or the National Labor Relations Act.
     Johnmohammadi v. Bloomingdales’s, Inc. - filed June 23, 2014
     Cite as 2014 S.O.S. 12-55578

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Davis v. Nordstrom, Inc.

Where employer notified employee that it had revised its employee handbook and other policies to reflect U.S. Supreme Court ruling that Federal Arbitration Act preempts state law barring enforcement of arbitration agreement barring class-wide arbitration, employer and employee entered into a valid agreement to arbitrate disputes on an individual basis. Employer satisfied the minimal requirements under California law for providing employees with reasonable notice of a change to its employee handbook by sending a letter to the employees informing them of the modification, and not seeking to enforce the arbitration provision during the 30-day notice period. Employer was not bound to inform an employee that her continued employment after receiving the letter constituted acceptance of new terms of employment.
     Davis v. Nordstrom, Inc. - filed June 23, 2014
     Cite as 2014 S.O.S. 12-17403

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Alameda County: Caregivers file class-action lawsuit against leading nationwide health care services company

Oakland Tribune
By Malaika Fraley
Alameda County: Caregivers file class-action lawsuit against leading nationwide health care services company

OAKLAND -- A class-action lawsuit filed Wednesday against a leading nationwide health care services company alleges caregivers tending to the elderly, ill and disabled in the Bay Area and throughout the state are being denied overtime and breaks in violation of California labor laws.

The lawsuit against the Kentucky-based Kindred Healthcare and its subsidiaries -- Professional Healthcare at Home and NP Plus -- alleges that employee caregivers contracted out to assisted living and rehabilitation facilities to provide nonmedical care are working 12- to 24-hour shifts without receiving overtime or breaks for meals and rest. The workers deployed to private residences are receiving a flat-pay wage that breaks down to below minimum wage, the lawsuit alleges.

The lead plaintiffs, Emma Delores Hawkins, of San Pablo, and Ginger Rogers, of Sacramento, are both veteran caregivers who work 12-hour shifts five to seven days a week in private residences and facilities in Alameda County.

"You might get a chance to go to the bathroom, but getting fresh air or taking a break -- it's not happening. Not a lunch break, not a 15-minute break, nothing," Rogers said. "It's been going on for quite some time. Unfortunately, a lot of people have not been speaking up. I decided to speak up. I'm going for some change in the health care profession."

Susan Moss, senior vice president of marketing and communications at Kindred Healthcare, said Wednesday that the company is unable to comment at this time because it had not been served with the lawsuit and therefore have not had the opportunity to review the allegations.

The lawsuit is being brought by the Legal Aid Society-Employment Law Center, Women's Employment Rights Clinic of Golden Gate University School of Law and the Oakland-based law firm Lewis, Feinberg, Lee, Renaker & Jackson on behalf of caregivers who have worked for the defendants in the last four years.

Some 300 caregivers work for the plaintiffs in California in private homes and in facilities at any given time, the law firm says, but the lawsuit has implications for the estimated 3.5 million such caregivers in the United States.


"We hope the lawsuit will set an industry standard requiring compliance with laws that govern this kind of work," said Hina Shah, an attorney for the plaintiffs.


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Long-term female executive claims wrongful termination against Playboy Enterprises. $6 million. U.S. District Court.

Case Name: Catherine A. Zulfer v. Playboy Enterprises Inc., and Does 1 through 10, inclusive.
Corporate controller claims Playboy asked for accounting entry that violated Sarbanes-Oxley Act; when she refused they retaliated against her and later wrongfully terminated her employment.
Gross Verdict: $6,000,000 plus findings under Civil Code 3294(b). The jury found that Playboy had retaliated in violation of the Sarbanes Oxley Act. The matter was resolved after the verdict.

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Duran v. U.S. Bank National Association

Class action proceeded to trial on theory that plaintiff class members had been misclassified as managers and improperly denied overtime pay, trial court’s approach-—designating about eight percent of class members as a sample, limiting evidence of class members’ work habits to those relating to the sample, and extrapolating from that evidence to determine damages for entire class-—was prejudicially flawed because it prevented defendant from showing that some class members were exempt and entitled to no recovery. Trial plan that relies on statistical sampling must be developed with expert input, and must afford the defendant an opportunity to impeach the model or otherwise show its liability is reduced.
     Duran v. U.S. Bank National Association - filed May 29, 2014
     Cite as 2014 S.O.S. 2659

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Staniforth v. Judges’ Retirement System (Chiang)

In action by judicial pensioners alleging that their pensions had been underpaid because legislative changes in how those amounts are calculated had been applied to them in violation of Olson v. Cory (1980) 27 Cal.3d 532. Trial court was correct in ruling that Olson did not confer on or recognize any right of judicial pensioners to be exempted from changes in the underlying salary structure applicable to active jurists, including changes to COLAs adopted by legislative amendment. Trial court erred in sustaining retirement system’s demurrer, without leave to amend, with respect to claims by class members who were allegedly not paid the amounts due to them under the trial court’s interpretation of Olson. Petitioners should have been granted leave to separately state the claims of those class members, as those claimants’ averments had been incorporated in the petition by reference. Their claims were not facially barred by the 10-year statute of limitations on enforcement of judgments or extinguished by the statutory limitation on the length of the retirement system’s obligations to its members--all contrary to the rulings of the trial court.

Staniforth v. Judges’ Retirement System (Chiang) - filed May 19, 2014, publication ordered May 29, 2014, Fourth District, Div. One
     Cite as 2014 S.O.S. 2745

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