Tuesday, July 31, 2018

Estill v. County of Shasta

Estill v. County of Shasta (CA3 C077513 7/31/18) Government Claim/Internal Investigation

Renee Estill submitted a government claim against the County of Shasta and others, specifically representing that she first became aware of the alleged incident [an internal affairs investigation by her employer] on September 9, 2011.  The County accepted Estill’s representation and denied her claim on the merits.  Because it accepted the claim as timely, the County did not warn Estill to seek leave to present a late claim.  This lawsuit followed.
During Estill’s deposition, however, defendants learned she was aware of the alleged wrongdoing as early as 2009.  The trial court granted defendant’s motion for summary judgment primarily on the ground that Estill’s government claim was untimely, but later granted her motion for a new trial, ruling there are triable issues of fact as to whether defendants waived their defense of untimeliness because the County did not warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3, subdivision (b).  Defendants appeal from the order granting Estill a new trial, and Estill cross-appeals from the judgment in favor of defendants.
After oral argument in this case, we asked the parties for supplemental briefing on the application of equitable estoppel in this context.  We conclude that a claimant may be estopped from invoking the section 911.3 waiver provision where a public entity’s failure to notify the claimant that a claim is untimely is induced by the claimant’s representation on the government claim form.  And in this case, based on the entire appellate record, including the supplemental briefs, we conclude Estill is estopped from asserting that defendants waived their defense of untimeliness.  She represented in her government claim that the incident of wrongdoing occurred in September 2009, but that she “first became aware” of the incident on September 9, 2011.  She included an attachment to her government claim in which she could have explained what she had learned in 2009 and 2010 about the alleged misconduct, but she did not mention her prior knowledge.  Thus, the record indicates she intended for the County to rely on her representation in the government claim, and the County did in fact rely on the representation.  Accordingly, we will reverse the trial court’s order granting Estill’s motion for a new trial and affirm the judgment entered in favor of defendants.

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Friday, July 27, 2018

Troester v. Starbucks Corporation

Troester v. Starbucks Corporation (SC S234969 7/26/18) FLSA/De Minimis Doctrine

Upon a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548), we agreed to answer the following question:  Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063, apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?

The de minimis doctrine is an application of the maxim de minimis non curat lex, which means “[t]he law does not concern itself with trifles.”  (Black’s Law Dict. (10th ed. 2014) p. 524.)  Federal courts have applied the doctrine in some circumstances to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.
We approach the question presented in two parts:  First, have California’s wage and hour statutes or regulations adopted the de minimis doctrine found in the federal Fair Labor Standards Act (FLSA)?  We conclude they have not.  There is no indication in the text or history of the relevant statutes and Industrial Welfare Commission (IWC) wage orders of such adoption.

Second, does the de minimis principle, which has operated in California in various contexts, apply to wage and hour claims?  In other words, although California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law?  We hold that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work “off the clock” several minutes per shift.  We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.

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Thursday, July 26, 2018

Windsor Redding Care Center, LLC

Windsor Redding Care Center, LLC  (20-CA-070465, et al.; 366 NLRB No. 127)  Redding CA, July 27, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully refuse to engage in predisciplinary or postdisciplinary bargaining with the Union.  A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) further agreed with the judge that the Respondent did not unlawfully terminate a housekeeping employee; Member McFerran would have found that the Respondent failed to establish that it would have taken the same action absent the employee’s union activity.  Contrary to the judge, the Board unanimously found that the Respondent unlawfully changed its practice of granting merit raises.  A Board majority (Members McFerran and Kaplan; Member Emanuel, dissenting) additionally found that the Respondent unlawfully terminated a restorative nursing assistant; Member Emanuel would have found that the Respondent established that it would have discharged the employee even absent the employee’s union activity.
Charges filed by SEIU United Service Workers-West.  Administrative Law Judge Gregory Z. Meyerson issued his decision on December 31, 2012.  Members McFerran, Kaplan, and Emanuel participated.

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Tuesday, July 24, 2018

Golden v. CEP

Golden v. CEP (9th Cir. 16-17354 7/24/18) Employment Settlement/“Restraint of a Substantial Character”

We are now called on to answer the question that we left open when this case was last before us: whether a provision of a settlement agreement between Dr. Donald Golden and his former employer, the California Emergency Physicians Medical Group (“CEP”), places a “restraint of a substantial character” on Dr. Golden’s medical practice. See Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083, 1093 (9th Cir. 2015) (“Golden I”). We conclude that it does, and that it therefore runs afoul of California law. See Cal. Bus. & Prof. Code § 16600.

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Friday, July 20, 2018

Rodriguez v. Taco Bell

Rodriguez v. Taco Bell (9th Cir. 16-15465 7/18/18) Wage & Hour/Meal Breaks

The panel affirmed the district court’s judgment in favor of Taco Bell Corp. in a putative class action concerning employee meal breaks.

After the district court granted summary judgment to Taco Bell on most of plaintiff’s claims, the court granted plaintiff’s request that the district court dismiss the remaining pending claim. As a threshold jurisdictional issue, the panel held that the dismissal with prejudice created a valid final judgment for purposes of 28 U.S.C. § 1291.

California Wage Order 5-2001 requires employees be relieved of all duty during a requisite meal period. During plaintiff’s period of employment, Taco Bell offered thirty-minute meal breaks that were fully compliant with California’s requirements, but with a special offer that employees could purchase a meal from the restaurant at a discount, provided they ate the meal in the restaurant.

The panel held that California law was not violated because Taco Bell relieved their employees of all duties during the meal break period and exercised no control over their activities, where employees were free to use the thirty minutes in any way they wished, subject only to the restriction that if they purchased a discounted meal, they had to eat in the restaurant. The panel rejected plaintiff’s contention that employees were under sufficient employer control to render the time compensable. The panel also rejected plaintiff’s assertion that the value of the discounted meals be added to the regular rate of pay for overtime purposes.

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Glazing Health & Welfare Fund v. Lamek

Under the Employee Retirement Income Security Act, employers are not fiduciaries as to unpaid contributions to ERISA benefit plans. Parties to an ERISA plan cannot designate unpaid contributions as plan assets.

Glazing Health & Welfare Fund v. Lamek - filed July 19, 2018
Cite as 2018 S.O.S. 16-16155

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Monday, July 16, 2018

Coffman v. Queen of the Valley Medical Center

An employer cannot begin unconditional bargaining and later withdraw recognition and refusing to bargain. The regional director of the National Labor Relations Board demonstrated a sufficient likelihood of success in establishing a withdrawal of recognition and refusal to bargain unconditionally, as well as a continuing threat of irreparable harm to the union's collective bargaining rights, to support the extraordinary remedy of injunctive relief, where the director could show that an employer had considerable dealings with the union following the union's certification, including discussions that resulted in agreements over some hours and working conditions, and that these negotiations took place before the employer made any official challenge to the certification.

Coffman v. Queen of the Valley Medical Center - filed July 16, 2018
Cite as 2018 S.O.S. 17-17413

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Dutta v. State Farm Mutual Automobile Insurance Co.

A plaintiff lacked standing to bring a suit based on a prospective employer's violation of the Fair Credit Reporting Act in failing to provide him with a copy of his consumer credit report and an opportunity to correct any inaccuracies where the plaintiff did not allege any actual harm or a substantial risk of such harm resulting from the violation.

Dutta v. State Farm Mutual Automobile Insurance Co. - filed July 13, 2018
Cite as 2018 S.O.S. 16-17216

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Monday, July 9, 2018

Caldera v. Dept. of Corrections & Rehabilitation

Caldera v. Dept. of Corrections & Rehabilitation (CA4/3 G053168 7/9/18) FEHA Harassment/Severe or Pervasive

Under the Fair Employment and Housing Act (FEHA), an employee with a disability can sue his or her employer and supervisors for disability harassment.  (Gov. Code, § 12940, subd. (j)(1).)  The employee must prove the harassment was either severe or pervasive.  (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 466.)

Augustine Caldera is a correctional officer at a state prison.  Officer Caldera stutters when he speaks.  The prison’s employees mocked or mimicked Caldera’s stutter at least a dozen times over a period of about two years.  Sergeant James Grove, a supervisor, participated in the mocking and mimicking of Caldera’s stutter.  Such conduct reflected the prison’s culture, according to a senior prison official.

Caldera sued the California Department of Corrections and Rehabilitation (CDCR) and Grove (collectively defendants) for disability harassment, failure to prevent the harassment, and related claims.  A jury found the harassment to be both severe and pervasive and awarded Caldera $500,000 in noneconomic damages.  The trial court found the damage award to be excessive and granted defendants’ motion for a new trial solely as to that issue.  Defendants appeal and Caldera cross-appeals.

Defendants claim there is insufficient evidence the harassment was either severe or pervasive.  We disagree.  There is substantial evidence to support the jury’s factual findings.  Defendants also claim the trial court committed two instructional and one evidentiary error.  We find no prejudicial instructional errors and the claimed evidentiary error has been forfeited.

Caldera claims the trial court failed to file a timely statement of reasons after granting defendants’ motion for a new trial.  We agree.  The court’s new trial order as to the damage award is reversed.  In all other respects, the judgment is affirmed.

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Friday, July 6, 2018

Juarez v. Wash Depot Holdings

An employee's right to bring a claim under the California Private Attorneys General Act cannot be waived. A trial court did not abuse its discretion by declining to sever a PAGA waiver and enforce the remaining arbitration agreement which was printed in both English and Spanish and only the English-language version of the agreement contained a severability clause.

Juarez v. Wash Depot Holdings - filed July 3, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 3389

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