Rockwell Mining LLC

The Board granted the General Counsel’s Motion for Partial Summary Judgment in this test-of-certification case on the ground that the Respondent failed to raise any issues that were not, or could not have been, litigated in the underlying representation proceeding in which the Union was certified as the bargaining representative.

Charge filed by United Mineworkers of America, AFL-CIO, Region 2, District 12.  Chairman Ring and Members Kaplan and Emanuel participated.

For more information, go to: 
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Moreno v. Visser Ranch, Inc.

Plaintiff was injured while a passenger in a pickup truck involved in a single-vehicle, rollover accident.  Plaintiff sued the driver (his father), the corporation that employed the driver, and an affiliated corporation that owned the vehicle.  Plaintiff alleged the driver was acting in the scope of his employment at the time of the accident and claimed the defendant corporations were vicariously liable under California’s doctrine of respondeat superior.  The defendant corporations obtained summary adjudication of the respondeat superior claim on the ground that the driver, who was returning home late in the evening after attending a family gathering, was not acting in the scope of his employment at the time of the accident. 

Scope of employment is a question of fact.  Here, the evidence shows defendants required the driver to be on call 24 hours a day, seven days a week to respond immediately to cell phone calls for repairs and maintenance needed at the ranches, farms and dairies operated by defendants.  Also, there is conflicting evidence about whether the driver was required to use the company-owned vehicle, which contained tools and spare parts, at all times so he could respond quickly to call for repairs at defendants’ various locations.  Based on this evidence and other details about the driver’s job, a reasonable trier of fact could find the driver was acting within the scope of his employment when the accident occurred.

We publish this decision because it is distinguishable from most other cases involving an employee’s required use of a company-owned vehicle.  Usually, those cases involve an employee who is required to use the vehicle only for the commute to and from work but is not required to use the vehicle while off work.  Here, a trier of fact reasonably could find the driver’s use of the truck for personal travel after work was dictated by the employer’s requirement.  In such circumstances, the risk of the truck’s involvement in an accident is a foreseeable risk that is attributable to the business enterprise under California’s risks-of-the-enterprise principle, which is the primary justification for its respondeat superior doctrine. 

Consequently, responsibility for that risk is best allocated to the enterprise, which is able to spread the risk (and actually did so) by obtaining insurance.

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Carrington v. Starbucks Corporation

Evidence that a worker accurately recorded her work time, that she was required to obtain approval from her supervisor prior to beginning her meal break and that she would begin her meal break when instructed was sufficient to support a finding that she did not receive meal breaks as required by law where the worker's records indicate she worked more five hours without taking a meal break and she did not receive a premium payment. Provision of a late meal period does not satisfy California's meal period requirements. An employee who brings a representative action under the Private Attorney General Act may seek penalties not only for the Labor Code violation that affected her, but also for different violations that affected other employees.

Carrington v. Starbucks Corporation - filed Nov. 27, 2018, publication ordered Dec. 19, 2018, Fourth District, Div. One 

Cite as 2018 S.O.S. 6102 

For more information, go to: 

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McCleery v. Allstate Ins. Co.

In this putative class action, property inspectors allege they were engaged by three “service” companies to perform inspections for two major insurers.  The inspectors allege they were in fact employees of the insurers and service companies jointly, and were entitled to but deprived of minimum wages, overtime, meal and rest breaks, reimbursement of expenses, and accurate wage statements.

The inspectors moved for class certification, supported by their expert’s declaration that liability could be determined and damages calculated classwide by way of statistical analyses of results obtained from an anonymous, double-blind survey of a sampling of class members.

The trial court summarily rejected the expert’s plan and denied certification on the ground that the inspectors had failed to show that their status as employees (as opposed to independent contractors) could be established on predominately common proof.

We reversed the order and remanded the matter with a direction, as pertinent here, to evaluate plaintiffs’ proposed sampling plan.  (McCleery v. Allstate Ins. Co. (Feb. 5, 2016, B256374) [nonpub. opn.].)  On remand, plaintiffs offered a trial plan describing their proposal to establish liability and damages by way of an anonymous survey of all class members.  The trial court found common issues existed as to the class members’ employment status.  It further found that plaintiffs’ survey method, although flawed in some respects, was carefully crafted for accuracy.  However, the court found plaintiffs’ trial plan to be unworkable because it failed to address individualized issues and deprived defendants of the ability to assert defenses.  The court therefore again denied certification.

Plaintiffs appeal, contending the trial court applied improper criteria and made incorrect legal assumptions.

We conclude that under the analytic framework promulgated by Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (Brinker) and Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1 (Duran), the trial court acted within its discretion in denying certification.

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Biel v. St. James School

The First Amendment's ministerial exception to generally applicable employment laws did not bar a teacher's claim against the Catholic elementary school that terminated her employment; factors to consider in whether an employee qualifies as a minister include whether the employer held the person out as a minister, whether her title reflected ministerial substance and training, whether she held herself out as a minister, and whether her job duties included important religious functions.

Biel v. St. James School - filed Nov. 17, 2018 

Cite as 2018 S.O.S. 17-55180 

For more information, go to: 

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Local Joint Exec. Bd. v. Mirage Casino-Hotel

The panel reversed the district court’s summary judgment confirming, pursuant to the Labor Management Relations Act, an arbitration award entered in favor of Mirage Casino-Hotel, Inc., on a union’s grievance under the parties’ collective bargaining agreement.

Mirage subcontracted with another company to operate a venue, and the memorandum of agreement provided that the other company would “directly employ” the union’s food and beverage workers and would be responsible for paying their wages and employee benefits. Mirage, however, would control the terms and conditions of employment. The other company soon declared bankruptcy and failed to pay certain benefits before closing. Mirage declined to step in, and the union filed a grievance. The arbitrator ruled that the union’s grievance, filed pursuant to the CBA, was not arbitrable. 

The panel explained that the parties’ substantive dispute concerned whether Mirage was obliged under Article 29 of the CBA and the MOA to ensure that the workers received payment for accrued benefits. The dispute was arbitrable if it fell within the arbitration agreement expressed in Article 21 of the CBA. Its arbitrability was to be determined by the arbitrator if the parties “clearly and unmistakably” agreed to submit that question to him. The union’s position would be meritorious if its theory was supported by the CBA and the other evidence.

The panel concluded that the arbitrator conflated these inquiries in concluding that the dispute was not arbitrable because Mirage was not the workers’ employer. The panel held that, under the terms of the CBA, which required Mirage to arbitrate grievances, the dispute was substantively arbitrable. Further, the union’s assent to the arbitrator deciding arbitrability could not be inferred from its post-hearing briefing or its failure to call a halt to the arbitration proceedings and seek judicial review of arbitrability. The panel reversed the district court’s judgment and remanded with instructions to vacate the arbitration award.

Concurring, Judge Owens wrote that, although the dissent reached a more equitable result, the majority’s opinion was more consistent with controlling law. 

Dissenting, Judge Friedland wrote that the “clear and unmistakable” test for determining whether a party resisting arbitration has nevertheless consented to having the arbitrator decide substantive arbitrability does not also apply when determining whether a party that initiates arbitration has so consented. Because the union submitted the dispute to arbitration in the first place, Judge Friedland would instead apply traditional standards of waiver to the union’s actions. She would hold that, under those standards, the union waived its objection to the arbitrator’s deciding the substantive arbitrability question.

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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.

For more information, go to:
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Grill Concepts Services, Inc. d/b/a The Daily Grill

Los Angeles, CA, November 20, 2018.  The Board granted the Employer’s Request for Review of the Regional Director’s Decision and Certification of Representative, as it raised substantial issues warranting review—specifically, whether union representatives’ offers to help employees with their mail ballots, including offers to help fill them out, constituted objectionable conduct.  Petitioner—Unite Here Local 11.  Chairman Ring and Members Kaplan and Emanuel participated.

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Orchids Paper Products Company

The Board unanimously affirmed the Administrative Law Judge’s conclusions that the Respondent violated Section 8(a)(5) by: (1) unilaterally implementing a policy requiring employees to wear flame-resistant clothing at all times; (2) suspending and disciplining an employee for failing to comply with the unilaterally implemented policy; (3) failing to adhere to the parties’ collective-bargaining agreement by not receiving the Union’s consent before converting productions lines six and seven to op-tech lines; (4) changing the employees’ health insurance; and (5) failing to apply certain terms of the parties’ collective-bargaining agreement to the “permanent temporary” employees.  A panel majority (Members Kaplan and Emanuel) reversed the judge’s conclusion that the Respondent unlawfully prevented union officials from conducting union business during work time in contravention of the parties’ collective-bargaining agreement.  A different panel majority (Members McFerran and Kaplan) affirmed the judge’s conclusions that the Respondent violated Section 8(a)(3) by discharging five “permanent temporary” employees.  The Board unanimously adopted the judge’s decision that the Respondent violated Section 8(a)(1) by: (1) threatening an employee with discipline for not complying with the unilaterally implemented flame-resistant clothing policy; (2) instructing an employee not to contact the Occupational Safety and Health Administration unless management had been informed first; (3) prohibiting employees from discussing the Union during work time while permitting discussion of other non-work topics; (4) prohibiting an employee from conducting union business in a disrespectful manner; (5) informing an employee that the “permanent temporary” employees had been discharged because of the Union’s actions on their behalf; and (6) preventing union officials from conducting union business in contravention of the parties’ collective-bargaining agreement.  A panel majority (Members McFerran and Kaplan) affirmed the judge’s conclusions that the Respondent violated Section 8(a)(1) by: (1) accusing employees of harassment; (2) creating the impression of surveillance; and (3) prohibiting employees from asking questions during meetings.  Finally, the Board unanimously reversed the judge’s findings that the Respondent did not unlawfully: (1) threaten an employee with unspecified reprisals; (2) prevent a union official from conducting union business in contravention of the parties’ collective-bargaining agreement on January 25; (3) create the impression that an employee’s union activities would be under greater scrutiny; and (4) promulgate a rule prohibiting employees from talking to employees in other departments.

Charge filed by United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO.  Administrative Law Judge Andrew S. Gollin issued his decision on September 15, 2017.  Members McFerran, Kaplan, and Emanuel participated.

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Private National Mortgage Acceptance Company, LLC, “Pennymac”

Sacramento, CA, November 16, 2018.  The Board found that, in light of the Supreme Court’s decision in Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), which overruled the Board’s decision in Murphy Oil USA, Inc., 361 NLRB 774 (2014), enf. denied in relevant part, 808 F.3d 1013 (5th Cir. 2015), the complaint allegation that the Respondent’s maintenance of its Mutual Arbitration Policy violated Section 8(a)(1) must be dismissed.  As to the separate issue whether the Respondent’s Mutual Arbitration Policy independently violates Section 8(a)(1) because it interferes with employees’ ability to access the Board, the Board observed that, at the time of the Administrative Law Judge’s decision and the parties’ exceptions, the issue whether maintenance of a facially neutral work rule or policy violated Section 8(a)(1) would be resolved based on the “reasonably construe” prong of the analytical framework set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004).  The Board noted that it subsequently issued its decision in The Boeing Company, 365 NLRB No. 154, in which it overruled the Lutheran Heritage “reasonably construe” test and announced a new standard that applies retroactively to all pending cases.  Accordingly, the Board issued a Notice to Show Cause why the allegation that the Mutual Arbitration Policy unlawfully restricts employee access to the Board should not be remanded to the judge for further proceedings in light of Boeing.  Charge filed by an individual.  Administrative Law Judge Raymond P. Green issued his decision on November 29, 2016.  Chairman Ring and Members McFerran and Kaplan participated.

For more information, go to:

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ABM Onsite Services-West, Inc.

Portland, OR, November 14, 2018.  In this supplemental decision, the Board (Chairman Ring, Members Kaplan and Emanuel; Member McFerran, dissenting) deferred to the advisory opinion of the National Mediation Board (NMB) that the Employer and its employees at the Portland International Airport are subject to the Railway Labor Act (RLA).  In 2015, the Board asserted jurisdiction, certified the Union, and found that the Employer unlawfully refused to recognize and bargain with the Union in a test-of-certification case.  The D.C. Circuit Court subsequently remanded the case, finding that the NMB cases on which the Board relied in asserting jurisdiction represented an unexplained departure from longstanding NMB precedent.  The Board referred the case to the NMB and the NMB issued an advisory opinion, returning to its traditional six-factor carrier control test and stating its view that the Employer’s operations at the Portland International Airport are subject to the RLA.  Agreeing with the NMB’s determination, the Board dismissed the complaint and the petition and vacated the Union’s certification.  Dissenting, Member McFerran found that the NMB’s opinion was deficient under the Administrative Procedure Act.  Member McFerran would refer the case back to the NMB for it to provide a reasoned explanation for its decision to return to the traditional six-factor carrier control test. 

Charge and Petition filed by International Association of Machinists & Aerospace Workers, District Lodge W24, AFL-CIO.  Chairman Ring and Members McFerran, Kaplan, and Emanuel participated.

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Donohue v. AMN Services, LLC

In this wage and hour class and representative action, the trial court granted a motion for summary judgment brought by defendant AMN Services, LLC (AMN), and denied motions for summary adjudication of one cause of action and one affirmative defense brought by plaintiff Kennedy Donohue, individually and on behalf of five certified plaintiff classes she represents (together Plaintiffs).  In her appeal from the judgment, Donohue challenges the grant of AMN's motion for summary judgment and the denial of her motion for summary adjudication of one of the causes of action.  On appeal, Donohue also challenges what she characterizes as the trial court's "fail[ure] to hear a proper motion for reconsideration" of the summary judgment and summary adjudication rulings.

As we explain, we lack jurisdiction to review the postjudgment order that resulted in the court's decision not to hear Donohue's motion for reconsideration, and in our de novo review of the summary judgment and summary adjudication rulings, we conclude that Donohue did not meet her burden of establishing reversible error.  Accordingly, we affirm the judgment.

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Fred B. Jacob Named NLRB Solicitor

WASHINGTON, D.C. — The National Labor Relations Board (NLRB) today announced the appointment of Fred B. Jacob as the new Solicitor. Mr. Jacob brings to the Board over two decades of experience practicing labor law and advising federal agencies on ethics, administrative law and government operations. He starts at the NLRB today.

Most recently, Mr. Jacob served as Solicitor of the Federal Labor Relations Authority (FLRA). As the FLRA’s in-house counsel, he advised the Authority on the Ethics in Government Act, the Sunshine Act, the Privacy Act, the Freedom of Information Act and general government operations. He also represented the FLRA before all federal courts, including the Courts of Appeals and the U.S. Supreme Court. Before joining the FLRA, Mr. Jacob spent seventeen years at the NLRB, working in offices throughout the agency. During that time, Mr. Jacob rose from briefing attorney to Deputy Assistant General Counsel in the Appellate and Supreme Court Litigation Branch, where he litigated, supervised, or managed hundreds of NLRB cases in the Courts of Appeals. Mr. Jacob also performed short-term assignments to the Manhattan Regional Office and the staff of then-Board Member Alex Acosta. In addition, while he was a staff attorney, he served as grievance chair of the NLRBPA at Headquarters.

Mr. Jacob began his career as a clerk on the United States Court of Appeals for the Fourth Circuit and then worked as a labor and employment associate for a law firm in Washington, D.C. Mr. Jacob has taught labor and employment law courses at Georgetown University Law Center and the College of William and Mary School of Law. He received his B.A. from Brandeis University and his J.D. from William and Mary. Mr. Jacob replaces William B. Cowen, who became Regional Director for Region 21 in 2016.

The Solicitor is the chief legal adviser and consultant to the entire Board on all questions of law regarding the Board’s general operations and on major questions of law and policy concerning the adjudication of NLRB cases in the Courts of Appeals and the U.S. Supreme Court. The Solicitor also serves as the Board’s legal representative and liaison to the General Counsel and other offices of the Board.

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.

For more information, go to:

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Fred B. Jacob Named NLRB Solicitor

The National Labor Relations Board (NLRB) today announced the appointment of Fred B. Jacob as the new Solicitor.  Mr. Jacob brings to the Board over two decades of experience practicing labor law and advising federal agencies on ethics, administrative law and government operations.  He starts at the NLRB today.

For more information, go to: 

http://www.beverlyhillsemploymentlaw.com/

Gerard v. Orange Coast Memorial Medical Center

A wage order of the Industrial Welfare Commission permitting health care employees to waive their second meal period break if they work shifts longer than 12 hours does not violate the Labor Code.

Gerard v. Orange Coast Memorial Medical Center - filed Dec. 10, 2018 

Cite as 2018 S.O.S. 5824 

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NLRB Further Extends Time for Submitting Comments on Proposed Joint-Employer Rulemaking

WASHINGTON, D.C. — The National Labor Relations Board is extending the time for submitting comments regarding its proposed rulemaking to address its joint-employer standard for an additional 30 days. The submission window is currently open and interested parties may now file comments on or before Monday, January 14, 2019. Comments replying to the comments submitted during the initial comment period must be received by the Board on or before January 22, 2019. 

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

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NLRB Issues Strategic Plan for FY 2019 to FY 2022

WASHINGTON, DC — The National Labor Relations Board is issuing its Strategic Plan for fiscal years 2019 through 2022, which is required under the Government Performance and Results Act of 2010. The Strategic Plan contains four mission-related goals to support the vision of NLRB Chairman John Ring and General Counsel Peter Robb.

These four mission-related goals include: (1) achieving a collective 20% increase (5% over each of four years) in timeliness in case processing of unfair labor practice charges, (2) achieving resolution of a greater number of representation cases within 100 days of the filing of an election petition, (3) achieving organizational excellence and productivity, and (4) managing agency resources efficiently and in a manner that instills public trust.

To achieve these stated goals, the Strategic Plan calls for an annual, Agency-wide 5% reduction in case processing time for unfair labor practice charges. This reduction includes not only case handling in the regional offices, but also the time between issuance of an Administrative Law Judge’s decision and a Board Order, and issuance of a Board Order and closure of a case. Over the years, the amount of time it takes for cases to be processed and for resolutions to be reached has increased and backlogs of cases have developed. This initiative has been developed to reverse these trends.

In support of the Strategic Plan, the General Counsel has issued Memorandum GC 19-02, Reducing Case Processing Time, discussing how these goals affect the NLRB’s Divisions of Advice, Legal Counsel, Enforcement Litigation, Operations-Management and the Regional offices.

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. The Office of the General Counsel is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases, for the conducting of secret ballot elections to determine whether employees desire union representation, for the overall supervision of field offices around the country, and for the general oversight of the Agency’s administrative, financial, personnel and human capital operations.

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GCIU-Employer Retirement Fund v. Quad/Graphics, Inc.

An employer that withdrew from a multiemployer pension plan after its employees voted to decertify a union as their bargaining representative was entitled to a credit for a prior partial withdrawal under 29 U.S.C. Sec. 1386(b) against its complete withdrawal before the calculation of the 20-year limitation on annual payments provided for in 29 U.S.C. Sec. 1399(c)(1)(B).

GCIU-Employer Retirement Fund v. Quad/Graphics, Inc. - filed Dec. 7, 2018 

Cite as 2018 S.O.S. 17-55667 

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Public Employment Relations Board v. Bellflower Unified School District

When it is undisputed that the Public Employment Relations Board followed its procedures prior to issuing a decision, substantial evidence necessarily supports a trial court's finding that the decision was issued pursuant to the board's established procedures. The PERB's general counsel's post-decision actions cannot be raised as a defense to an enforcement action.

Public Employment Relations Board v. Bellflower Unified School District - filed Dec. 4, 2018, Second District, Div. Four
Cite as 2018 S.O.S. 5789

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Acosta v. Brain

An attorney's participation in a Department of Labor investigation of an Employee Retirement Income Security Act trust fund trustee constituted a protected activity for purposes of 29 U.S.C. Sec. 1140. The fact that an individual defendant was not the ultimate decision maker for a retaliatory action does not immunize him under a cat's-paw theory of liability. Pursuant to ERISA Sec. 404 a court must distinguish between actions a fiduciary took in connection with its fiduciary responsibilities to the plan and those that actions taken as an individual or entity acting in its corporate capacity. ERISA Sec. 502(a)(5) does not provide a basis for a permanent injunction where no aspect of the injunction redressed or enforced a violation of ERISA Sec. 510.

Acosta v. Brain - filed Dec. 4, 2018 

Cite as 2018 S.O.S. 16-56529 

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ASARCO, LLC v. United Steel, Paper and Forest

An arbitrator did not exceed his authority in reforming a collective bargaining agreement upon finding that the parties were mutually mistaken as to its terms when they agreed to it, even though the agreement contained a "no-add" provision.

ASARCO, LLC v. United Steel, Paper and Forest - filed Dec. 4, 2018 

Cite as 2018 S.O.S. 16-16363 

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City of Oakland v. Oakland Police and Fire Retirement System

Following this court’s published decision in City of Oakland v. Oakland Police & Fire Retirement System (2014) 224 Cal.App.4th 210 (OPFRS)—which involved the legitimacy of certain retirement benefits regularly paid by the Oakland Police and Fire Retirement Board (Board) to members and beneficiaries of the Oakland Police and Fire Retirement System (PFRS)—the Retired Oakland Police Officers Association, along with several individual PFRS pensioners (collectively, the “Association”) sought attorney fees in the trial court.  Specifically, the Association—interveners in the underlying action—claimed an entitlement to fees under both California’s private attorney general statute, Code of Civil Procedure section 1021.5 (section 1021.5), and section 1988 of the federal Civil Rights Attorneys’ Fees Award Act of 1976, 42 U.S.C. § 1988 (section 1988).  After considering the matter at some length, the trial court determined that fees were not warranted under either statute.  On appeal, many of the trial court’s numerous conclusions made in connection with its denial of fees are disputed either by the Association or by respondent City of Oakland (City).  We have considered the arguments raised by both parties, and deem an award of attorney fees under section 1021.5 to be proper.  We therefore reverse and remand the matter so that the trial court can determine the appropriate amount of such an award, consistent with our conclusions herein.

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Sulyma v. Intel Corp. Inv. Policy Comm.

The panel reversed the district court’s grant of summary judgment in favor of the defendants in an ERISA action on the ground that the limitations period had expired.

A former employee and participant in Intel’s retirement plans sued the company for allegedly investing retirement funds in violation of ERISA section 1104. The district court concluded that the employee had the requisite “actual knowledge” to trigger ERISA’s three-year limitations period, 29 U.S.C. § 1113(2).

The panel held that a two-step process is followed in determining whether a claim is barred by section 1113(2). First, the court isolates and defines the underlying violation on which the plaintiff’s claim is founded. Second, the court inquires whether the plaintiff had “actual knowledge” of the alleged breach or violation. The panel held that actual knowledge does not mean that a plaintiff had knowledge that the underlying action violated ERISA, nor does it merely mean that a plaintiff had knowledge that the underlying action occurred. Rather, the defendant must show that the plaintiff was actually aware of the nature of the alleged breach more than three years before the plaintiff’s action was filed. In an ERISA section 1104 case, the plaintiff must have been aware that the defendant had acted and that those acts were imprudent. Disagreeing with the Sixth Circuit, the panel held that the plaintiff must have actual knowledge, rather than constructive knowledge.

The panel concluded that disputes of material fact as to the plaintiff’s actual knowledge precluded summary judgment, and remanded the case to the district court for further proceedings.

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Hernandez v. Pacific Bell Telephone Company

Workers are not entitled to be compensated for time spent traveling in employer-provided vehicles between their homes and worksites under an optional and voluntary home dispatch program. Simply transporting tools and equipment during commute time is not compensable work where no effort or extra time is required to effectuate the transport.

Hernandez v. Pacific Bell Telephone Company - filed Nov. 15, 2018, Third District 

Cite as 2018 S.O.S. 5415 

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G.R.P. Mechanical Company, Inc.

G.R.P. Mechanical Company, Inc.  (14-CA-211817)  Bethalto, IL, November 6, 2018.  No exceptions having been filed to the September 24, 2018 decision of Administrative Law Judge Charles J. Muhl’s finding that the Respondent had engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and ordered the Respondent to take the action set forth in the recommended Order.  Charge filed by an individual. 

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Rhode Island LFG Genco, LLC

Rhode Island LFG Genco, LLC  (01-RC-208704)  Johnston, RI, November 7, 2018.  The Board denied the Employer’s Request for Review of the Acting Regional Director’s Supplemental Decision on Challenged Ballot and Certification of Representative, finding the petitioned-for unit of maintenance-department technicians appropriate for collective bargaining purposes, as it raised no substantial issues warranting review.  The Board also denied the Employer’s Motion to Stay the Certification of Representative.  Petitioner—International Brotherhood of Teamsters Local 251.  Chairman Ring and Members Kaplan and Emanuel participated.

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Huerta v. Kava Holdings

Code of Civil Procedure Sec. 998 does not apply to nonfrivolous Fair Employment and Housing Act litigation that predates the application of the amended version of Government Code Sec. 12965(b).

Huerta v. Kava Holdings - filed Nov. 14, 2018, Second District, Div. Eight 

Cite as 2018 S.O.S. 5371 

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Prison Group Faces Lawsuit Over Immigrant Wages

ALBUQUERQUE, N.M. — The operator of one of the largest private prison systems in the United States paid detained immigrants at a New Mexico prison as little as $1 per day as part of “volunteer” work programs, and refused to pay them minimum wages even though they were not convicted of any crimes, a new federal class-action lawsuit alleges.

Three detained men from the Central African country of Cameroon who came to the U.S. seeking asylum were paid the low wages for janitorial and kitchen work at the CoreCivic-run prison at the Cibola County Correctional Center in Milan, New Mexico, according to court documents filed Wednesday in U.S. District Court in Maryland.

For about six months, Desmond Ndambi, Mbah Emmanuel Abi, and Nkemtoh Moses Awombang were held at the detention center after surrendering to U.S. officials at the U.S.-Mexico border in Texas in June 2017, said Joseph Sellers, the attorney for the men and a partner at New York law firm of Cohen Milstein Sellers & Toll.

All three men are members of a politically persecuted Anglophone minority in Cameroon and they came to the U.S. fleeing torture and persecution by police, Sellers said.

But it was while they awaiting the hearing for asylum that prison officials offered the men a chance to make money to cover basic necessities like phone calls, food and toiletries while in detention.

The men were sometimes paid around $0.50 an hour or $15 a week regardless of the number of hours they worked in violation of state and federal wage laws, the lawsuit said.

“They had no way of knowing if that was unlawful or not until they consulted a lawyer,” Sellers said. “They were doing real work like the rest of us work. They are entitled to be paid overtime. They are entitled to be paid the prevailing wage. They were paid far below it.”

The Nashville, Tennessee-based CoreCivic did not immediately return an email from The Associated Press.

Sellers said the men were not facing criminal charges and are now U.S. residents living in Maryland and Ohio. The men are seeking an unspecified amount in back pay and damages.

Attorneys said they believe as many as 1,000 other immigrants held at the Cibola County Correctional Center might have worked for similarly low wages and could be entitled to relief.

Last year, a federal judge ruled that Washington state could pursue its lawsuit seeking to force GEO Group — one of the nation’s largest privately run immigration detention centers — to pay minimum wage for work done by detainees.

The for-profit company runs the Northwest Detention Center, a 1,575-bed facility in Tacoma, Washington, where detainees are held pending deportation proceedings.

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Rookaird v. BNSF Railway Company

An employer can be held liable under the Federal Railroad Safety Act for retaliating against a worker for refusing to engage in an action when he had an objectively reasonable belief that the act would violate a railroad safety rule or regulation.

Rookaird v. BNSF Railway Company - filed Nov. 8, 2018
Cite as 2018 S.O.S. 16-35786

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Manavian v. Dept. of Justice

A career executive assignment (CEA) is “an appointment to a high administrative and policy influencing position within the state civil service in which the incumbent’s primary responsibility is the managing of a major function or the rendering of management advice to top-level administrative authority.  Such a position can be established only in the top managerial levels of state service and is typified by broad responsibility for policy implementation and extensive participation in policy evolvement.  Assignment by appointment to such a position does not confer any rights or status in the position other than provided in Article 9 . . . of Chapter 2.5 of Part 2.6.”  (Gov. Code, § 18547.) The rights conferred by article 9 are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.  (§ 19889.2.)

CEA positions are part of the general civil service system, but an employee enjoys no tenure in a CEA.  (Professional Engineers in Cal. Government v. State Personnel Bd. (2001) 90 Cal.App.4th 678, 689, 692 (Professional Engineers).)  The CEA legislation was created to encourage the use and development of well-qualified selected executives.  (Campbell v. State Personnel Bd. (1997) 57 Cal.App.4th 281, 293.)  As a result of the need for flexibility at this level, the appointing authority may terminate a CEA without cause.  (Professional Engineers, at p. 692.)

This case illustrates the need for flexibility in terminating a CEA position.  Plaintiff Edward Manavian held a CEA position as chief of the Criminal Intelligence Bureau (Bureau), part of the Department of Justice (DOJ).  Formed after the September 11 terrorist attacks, the Bureau is a partnership of local and state law enforcement agencies created pursuant to a memorandum of understanding (MOU) between the Governor and Attorney General.  The Bureau’s mission is to facilitate local, state, and federal law enforcement intelligence collection and sharing.  In particular, Manavian’s job description was to cooperate with local, state, and federal law enforcement agencies to prevent terrorism and related criminal activity. 

However, Manavian’s relationships with state and federal decisionmakers were not good.  The director and deputy director of the state Office of Homeland Security were ready to withdraw from the DOJ partnership and refused to work with Manavian.  Richard Oules, Manavian’s superior, decided to terminate Manavian’s CEA position because of his dysfunctional relationship with federal and state representatives and because of Manavian’s hostility toward Oules.

As a chief designated as a peace officer by the Attorney General, Manavian is also entitled to the protections of the Public Safety Officers Procedural Bill of Rights Act (POBRA), section 3300 et seq.  (Pen. Code, § 830.1, subd. (b); § 3301.)  POBRA provides certain protections pertaining to the investigation, interrogation, and administrative appeal of punitive actions.  (§§ 3303, 3304, subd. (b).)  This case is premised on the claim that the termination of Manavian’s CEA position was a punitive action protected by POBRA, despite clear language to the contrary in section 19889.2.

    

Manavian also claims that certain actions he took in liaising with other state and federal homeland security representatives, then reporting potentially illegal policy proposals, were protected by the California whistleblower statutes.            

We shall conclude that POBRA protections were not triggered by the termination of Manavian’s CEA position, and that he is not protected as a whistleblower.

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BNSF Railway Company v. Loos

Whether a railroad’s payment to an employee for time lost from work is subject to employment taxes under the Railroad Retirement Tax Act.

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Guerrero v. Cal. Dept. of Corrections and Rehabilitation

Victor Guerrero, a Mexican immigrant and aspiring California correctional officer, filed a federal action alleging discriminatory failure-to-hire against the California Department of Corrections and Rehabilitation (the CDCR), among other defendants.  He pled federal and state law claims, but only his state claims allowed him to seek general damages. 

The federal court dismissed Guerrero’s state claims on Eleventh Amendment grounds, effectively limiting his potential money recovery to the equitable remedy of backpay.  To recoup damages, Guerrero filed this action in superior court.  After final judgment was entered in the federal action—in Guerrero’s favor—the superior court dismissed his state claims under California claim preclusion principles.

On appeal, Guerrero now argues that federal law, not California law, governs the preclusive effect of the federal judgment.  Under federal law, Guerrero contends, there is a well-recognized exception to claim preclusion rules where jurisdictional limitations in a prior suit blocked the plaintiff’s request for complete relief, as was the case here.  We agree and shall reverse.  

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Mount Lemmon Fire Dist. v. Guido

John Guido and Dennis Rankin filed suit, alleging that the Mount Lemmon Fire District, a political subdivision in Arizona, terminated their employment as firefighters in violation of the Age Discrimination in Employment Act of 1967 (ADEA). The Fire District responded that it was too small to qualify as an “employer” under the ADEA, which provides: “The term ‘employer’ means a person engaged in an industry affecting commerce who has twenty or more employees . . . . The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State . . . .” 29 U. S. C. §630(b). 

Initially, both Title VII of the Civil Rights Act of 1964 and the ADEA applied solely to private sector employers. In 1974, Congress amended the ADEA to cover state and local governments. A previous, 1972, amendment to Title VII added States and their subdivisions to the definition of “person[s],” specifying that those entities are engaged in an industry affecting commerce. The Title VII amendment thus subjected States and their subdivisions to liability only if they employ a threshold number of workers, currently 15. By contrast, the 1974 ADEA amendment added state and local governments directly to the definition of “employer.” The same 1974 enactment also amended the Fair Labor Standards Act (FLSA), on which many aspects of the ADEA are based, to reach all government employers regardless of their size. 29 U. S. C. §203(d), (x).

Held: The definitional provision’s two-sentence delineation, set out in §630(b), and the expression “also means” at the start of §630(b)’s second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation.

The words “also means” in §630(b) add new categories of employers to the ADEA’s reach. First and foremost, the ordinary meaning of “also means” is additive rather than clarifying. See 859 F. 3d 1168, 1171 (case below) (quoting Webster’s New Collegiate Dictionary 34). The words “also means” occur dozens of times throughout the U. S. Code, typically carrying an additive meaning. E.g., 12 U. S. C. §1715z–1(i)(4). Furthermore, the second sentence of the ADEA’s definitional provision, §630(b), pairs States and their political subdivisions with agents, a discrete category that carries no numerical limitation.

Reading the ADEA’s definitional provision, §630(b), as written to apply to States and political subdivisions regardless of size may give the ADEA a broader reach than Title VII, but this disparity is a consequence of the different language Congress chose to employ. The better comparator for the ADEA is the FLSA, which also ranks States and political subdivisions as employers regardless of the number of employees they have. The Equal Employment Opportunity Commission has, for 30 years, interpreted the ADEA to cover political subdivisions regardless of size, and a majority of the States impose age discrimination proscriptions on political subdivisions with no numerical threshold.

Pp. 4–6. 859 F. 3d 1168, affirmed.

GINSBURG, J., delivered the opinion of the Court, in which all other Members joined, except KAVANAUGH, J., who took no part in the consideration or decision of the case.

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Ramos v. Superior Court

An arbitration provision in an employment agreement was procedurally and substantively unconscionable as applied to the worker’s claims to vindicate her statutory rights and for wrongful termination. If a worker’s claims have their “roots in the relationship” created by the agreement that required arbitration of claims “arising under or related to” the agreement, then the claims fall within the scope of the agreement. The law remains that mandatory employment contracts that require employees to waive their rights to bring statutory discrimination claims under the Fair Employment and Housing Act and related claims for wrongful termination in violation of public policy are unlawful.

Ramos v. Superior Court (Winston & Strawn) - filed Nov. 2, 2018, First District, Div. One 

Cite as 2018 S.O.S. 5302 

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Quiles v. Parent

In this latest chapter in what originated as a wage and hour class action, defendant Arthur J. Parent, Jr. (Parent) appeals from the amended judgment entered in favor of plaintiff Amanda Quiles on her individual claim for wrongful employment termination in violation of the federal Fair Labor Standards Act of 1938 (FLSA; 29 U.S.C. § 201 et seq.).  (All further statutory references are to title 29 of the United States Code unless otherwise specified.)  In addition to the damages awarded by the jury, the amended judgment awarded Quiles $689,310.04 in attorney fees and $50,591.69 in costs of litigation. 

Parent challenges the attorney fees and costs awards of the amended judgment only, arguing the trial court erred by awarding costs that were not statutorily authorized and by awarding attorney fees and costs that were jointly incurred by Quiles with her coplaintiffs for whom litigation remains pending.  He also argues the trial court otherwise abused its discretion by awarding attorney fees and costs that were unrelated and unnecessary to Quiles’s successful FLSA claim. 

We affirm.  We hold, in this case of first impression, that federal law applies to the determination of what type of costs are recoverable by a prevailing party in an FLSA action filed in state court.  Section 216(b) provides that any employer who wrongfully terminates the employment of an employee in retaliation for filing an FLSA action shall be liable for legal or equitable relief and shall pay the employee’s reasonable attorney fees and costs of the action.  Federal courts have construed section 216(b) to authorize awarding a prevailing employee a broad measure of costs, which include copying, postage, and mediation expenses. 

We reject Parent’s argument that the trial court erred by awarding Quiles mediation costs because the parties had contractually agreed to mediate the matter and divide the costs between them.  The record shows that the parties agreed to each pay the mediation services provider half the costs of mediation, but Parent did not go through with any agreement to mediate, having failed to personally appear at the mediation or otherwise be available to participate in the mediation.  Parent forfeited his argument that the trial court awarded expert witness fees that were unauthorized by the FLSA.  He failed to raise that argument in the trial court which resulted in the issue not having been fully briefed and in depriving the trial court the opportunity to make that determination in the first instance.

We also reject Parent’s claim that the trial court erred by awarding Quiles costs she jointly incurred with other plaintiffs who continue to litigate their claims.  The trial court painstakingly reviewed the lengthy record regarding Quiles’s requests for attorney fees and costs and awarded her what the court determined she reasonably incurred on her own behalf and in relation to her successful claim.  Contrary to Parent’s argument, the trial court did not err by awarding Quiles attorney fees and costs she incurred in connection with the trial as to the joint employer issue.  Having proven Parent’s status as her joint employer enabled Quiles to avail herself of the opportunity to pursue damages, penalties, attorney fees and costs against Parent for violating the FLSA by wrongfully terminating Quiles’s employment.

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Ramos v. Super. Ct.

Constance Ramos, an experienced litigator and patent practitioner with a doctorate in biophysics, was hired as an “Income Partner” at the law firm Winston & Strawn, LLP (Winston).  After allegedly being denied recognition for her work, excluded from opportunities for career advancement, evaluated based on the success of her male colleagues, and denied compensation and bonuses to which she was entitled, Ramos sued Winston, asserting various causes of action under state law for discrimination, retaliation, wrongful termination, and anti-fair-pay practices. 

Winston moved to compel arbitration pursuant to the partnership agreement Ramos signed shortly after joining the firm.  In opposing the motion, Ramos argued she was an “employee” of Winston, not a partner, and therefore Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 (Armendariz) applied to the arbitration agreement.  Ramos further argued the arbitration provision in the partnership agreement failed to meet the minimum requirements set forth in Armendariz for arbitration of unwaivable statutory claims.  The trial court disagreed, finding Ramos was “in a partnership relationship” for purposes of the motion to compel.  The trial court severed provisions of the arbitration agreement related to venue and cost-sharing, and granted Winston’s motion.  Ramos sought a writ of mandate, and we granted review.            

We conclude the trial court erred in compelling Ramos to submit her claims to arbitration.  Under the framework set forth by our Supreme Court in Armendariz, we find the parties’ arbitration agreement is unconscionable.  Further, because we cannot remove the taint of illegality by severing the unlawful provisions without altering the nature of the parties’ agreement, we must void the entire agreement to arbitrate.  Accordingly, we reverse and remand for Ramos to proceed with her claims in superior court.

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AMN Healthcare, Inc. v. Aya Healthcare Services, Inc.

Plaintiff AMN Healthcare, Inc. (AMN) appeals (1) the judgment in favor of defendants Kylie Stein, Robin Wallace, Katherine Hernandez, Alexis Ogilvie (sometimes collectively, individual defendants) and Aya Healthcare, Inc. (Aya) (sometimes individual defendants and Aya are collectively referred to as defendants); (2) the injunction preventing AMN from enforcing its nonsolicitation of employee provision against individual defendants and its other former employees; and (3) the award of attorney fees in favor of defendants. 

AMN and Aya are competitors in the business of providing on a temporary basis healthcare professionals, in particular "travel nurses," to medical care facilities throughout the country.  Individual defendants were former "travel nurse recruiters" of AMN who, for different reasons and at different times, left AMN and joined Aya, where they also worked as travel nurse recruiters. 

As a condition of employment with AMN, individual defendants each signed a Confidentiality and Non-Disclosure Agreement (CNDA), which, as discussed post, included a provision preventing individual defendants from soliciting any employee of AMN to leave the service of AMN for at least a one-year period.  Significant in the instant case, a travel nurse was deemed to be an employee of AMN while on temporary assignment through AMN.            

AMN sued defendants, asserting various causes of action including breach of contract and misappropriation of confidential information, including trade secrets as set forth in the Uniform Trade Secrets Act, Civil Code sections 3426 et seq. (UTSA).  Defendants filed a cross-complaint for declaratory relief and unfair business competition.

Defendants moved for summary judgment of AMN's operative complaint and of their own cross-complaint.  Defendants claimed that the nonsolicitation of employee provision in the CNDA was an improper restraint on individual defendants' ability to engage in their profession, in violation of Business and Professions Code section 16600; that as such, AMN's contract-based causes of action failed as a matter of law; and that AMN's tort-based causes of action also failed as a matter of law because the information allegedly used by defendants to recruit travel nurses was not protected. 

The trial court agreed with defendants, granted summary judgment against AMN, and granted summary adjudication of defendants' declaratory relief cause of action in their cross-complaint.  After granting such relief, the court subsequently enjoined AMN from enforcing the nonsolicitation of employee provision in the CNDA as to any former (California) AMN employee and awarded defendants attorney fees.           

As we explain, we independently conclude the court properly granted summary judgment of AMN's operative complaint and of defendants' declaratory relief cause of action in their cross-complaint.  We further conclude the court properly exercised its discretion when it enjoined AMN from attempting to enforce its nonsolicitation of employee provision with respect to its former employees, including individual defendants, and when it awarded defendants their reasonable attorney fees.

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Sali v. Corona Regional Med. Ctr.

The panel filed an order denying a petition for panel rehearing and a petition for rehearing en banc, in a case in which the panel reversed the district court’s denial of class certification in a putative class action.

Judge Bea, joined by Judges Bybee, Callahan, Ikuta, and Bennett, dissented from the denial of rehearing en banc because he would hold that the panel erred in concluding that expert opinion testimony need not be admissible evidence in order to be considered at the class certification stage. Judge Bea wrote that the panel’s decision goes against the court’s own binding precedent, the law of four other circuits, and the Supreme Court’s clear guidance on the issue.

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Nunies v. HIE Holdings, Inc.

The Americans with Disabilities Act Amendments Act expanded the scope of the Americans with Disabilities Act's "regarded-as" definition of disability. Prior to the ADAAA, to sustain a regarded-as claim, the plaintiff had to provide evidence that the employer subjectively believed the plaintiff was substantially limited in a major life activity, but under the ADAAA the plaintiff must show that he has been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Nunies v. HIE Holdings, Inc. - filed Nov. 1, 2018 

Cite as 2018 S.O.S. 16-16494 

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Brown v. Ralphs Grocery Company

A plaintiff bringing a wage and hour claim under the Private Attorneys General Act must state facts and theories supporting the alleged violations not implied by reference to the Labor Code and give the employer sufficient information to assess the seriousness of the alleged violations. However, a bare allegation of a violation of an employer's duty to maintain accurate and complete wage statements is itself sufficient. A plaintiff does not need to specify Labor Code Sec. 558 in her PAGA notice and can proceed with a claim for remedies under that section so long as she gave adequate notice of a violation for which Sec. 558 provides a remedy.

Brown v. Ralphs Grocery Company - filed Oct. 31, 2018, Second District, Div. Five 

Cite as 2018 S.O.S. 5223 

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Mount Lemmon Fire District v. Guido Oral Argument Transcript

Whether, under the Age Discrimination in Employment Act, the same 20-employee minimum that applies to private employers also applies to political subdivisions of a state, as the U.S. Courts of Appeals for the 6th, 7th, 8th and 10th Circuits have held, or whether the ADEA applies instead to all state political subdivisions of any size, as the U.S. Court of Appeals for the 9th Circuit held in this case.

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Payton v. CSI Electrical Contractors

Trial court did not abuse its discretion in finding that the named plaintiff Payton was not an appropriate class representative based on his criminal record denying leave to substitute another representative in light of the age of the case and the futility of doing so.

Payton v. CSI Electrical Contractors - filed Sept. 28, 2018, Second District, Div. Two
Cite as 2018 S.O.S. 4792

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Atempa v. Pedrazzani

Civil penalties may be assessed for violation of specified overtime pay and minimum wage laws from a person other than the corporate employer that failed to pay the proper wages, where there is no allegation or contention that the alter ego doctrine applies or that there is any other basis on which to pierce the veil of the corporate employer.

Atempa v. Pedrazzani - filed Sept. 28, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 4783

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San Francisco Police Officers' Association v. San Francisco Police Commission

A trial court properly made a determination of arbitrability for a union grievance asserting the city had failed to negotiate in good faith before implementing revisions to its use of force policy where the memorandum of understanding between a city and police union specified that arbitrability was to be determined by a court when a grievance is filed regarding actions the city has reasonably found to be necessary to ensure compliance with state law. The trial court properly concluded that the dispute was not arbitrable since the city's power to regulate the use of force by its police officers is a constitutional right which the city cannot suspend, bargain or contract away.

San Francisco Police Officers' Association v. San Francisco Police Commission - filed Sept. 26, 2018, First District, Div. Two
Cite as 2018 S.O.S. 4759

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Ayon v. Esquire Deposition Solutions

A plaintiff did not create a disputed issue of material fact about an employer's liability under a theory of respondeat superior by simply challenging the defense witnesses' credibility.

Ayon v. Esquire Deposition Solutions - filed Sept. 21, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 4679

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Moss Brothers Toy, Inc. v. Ruiz

A complaint against a defendant for an alleged breach of an arbitration agreement was based on a protected action where the alleged breach was the defendant's act of filing a lawsuit instead of pursuing arbitration for his employment-related claims. Were it not for the defendant's act of filing suit, the plaintiff would have no factual basis for its claims.

Moss Brothers Toy, Inc. v. Ruiz - filed Sept. 20, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 4617

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Nunies v. HIE Holdings, Inc.

The Americans with Disabilities Act Amendments Act expanded the scope of the Americans with Disabilities Act's "regarded-as" definition of disability. Prior to the ADAAA, to sustain a regarded-as claim, the plaintiff had to provide evidence that the employer subjectively believed the plaintiff was substantially limited in a major life activity, but under the ADAAA the plaintiff must show that he has been subjected to a prohibited action "because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity."

Nunies v. HIE Holdings, Inc. - filed Sept. 17, 2018
Cite as 2018 S.O.S. 16-16494

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