Tuesday, August 21, 2018

Connor v. First Student, Inc.

Connor v. First Student, Inc. (SC S229428 8/20/18) Employer Background Checks/ICRAA and CCRAA

We granted review to resolve a conflict in the Courts of Appeal over whether the Investigative Consumer Reporting Agencies Act (ICRAA) (Civ. Code, § 1786 et seq.) is unconstitutionally vague, in violation of due process, as applied to employer background checks because it overlaps, in part, with the Consumer Credit Reporting Agencies Act (CCRAA) (§ 1785.1 et seq.).  We agree with the Court of Appeal that some overlap between the two statutes does not render ICRAA unconstitutionally vague when the statutes are otherwise unambiguous.  We therefore affirm the Court of Appeal judgment.

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Wednesday, August 15, 2018

Jackpot Harvesting Co. v. Superior Ct.

Jackpot Harvesting Co. v. Superior Ct. (CA6 H044764 8/14/18) Piece Rate/Rest and NP Time

Labor Code section 226.2, which became effective January 1, 2016, addresses the manner in which piece-rate employees are to be compensated for rest and recovery periods and other nonproductive time on the job (collectively, rest/NP time).  Subdivision (b) of the statute (hereafter section 226.2(b)) provides a safe harbor for an employer that, prior to 2016, failed to properly compensate its piece-rate workers for rest/NP time. Under section 226.2(b), an employer that pays its employees for previously unpaid rest/NP time accrued between July 1, 2012 and December 31, 2015, is entitled to assert “an affirmative defense to any claim or cause of action . . . based solely on the employer’s failure to timely pay the employee the compensation due for [rest/NP time] . . . for time periods prior to and including December 31, 2015.”

This lawsuit concerns whether an employer complying with the requirements of section 226.2(b) has a safe harbor against any employee claims for rest/NP time accruing prior to and including December 31, 2015, or has an affirmative defense only to those claims accruing between July 1, 2012 and December 31, 2015.  We will conclude that under the plain and unambiguous language of section 226.2(b), an employer complying with the statute has an affirmative defense against any employee claims for rest/NP time accruing prior to and including December 31, 2015.

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Tuesday, August 14, 2018

Cal. Dept. of Industrial Relations v. AC Transit

(CA1/4 A142799 8/13/18) Non-Air Conditioned Buses.Outdoor Places of Employment

In this appeal, we consider a narrow question of regulatory interpretation:  Can the interior of a non-air-conditioned bus be deemed an “outdoor place of employment” for purposes of the heat illness prevention standards promulgated by the California Occupational Safety and Health Standards Board (Standards Board) as stated in section 3395 of title 8 of the California Code of Regulations (section 3395)?  After the Department of Industrial Relation’s Division of Occupational Safety and Health (Division) cited the Alameda-Contra Costa Transit District (AC Transit) for several violations of section 3395 involving its non-air-conditioned buses, AC Transit sought administrative review, arguing, among other things, that the buses were not “outdoor” places of employment for purposes of the heat illness prevention regulation.  The Occupational Safety and Health Appeals Board (Appeals Board) ultimately agreed, affirming the dismissal of the appealed-from violations by one of its administrative law judges (ALJ).  However, after the Division filed a petition for writ of mandate in the trial court disputing this decision, the trial court determined that the Appeals Board’s definition of “outdoor” was too narrow and issued a peremptory writ of mandate instructing the Appeals Board to reconsider the matter using a broader definition of outdoor that could include non-air-conditioned vehicles.  Both AC Transit and the Appeals Board appealed.  We conclude—based upon our independent analysis of the question—that the trial court’s construction of section 3395 is well supported both by the language of the regulation and by its related regulatory history.  We therefore remand the matter for further proceedings consistent with our analysis.

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Friday, August 10, 2018

Clark v. City of Seattle

A group of drivers did not raise a viable challenge to a city ordinance that establishes a multistep collective-bargaining process between "driver-coordinators" and for-hire drivers under Sec. 8(b)(4) or Sec. 8(e) of the National Labor Relations Act because the disclosure of the drivers' information to a labor union was neither a concrete nor a particularized injury.

Clark v. City of Seattle - filed Aug. 9, 2018
Cite as 2018 S.O.S. 17-35693

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Tuesday, August 7, 2018

NLRB Announces Opportunity for Voluntary Early Retirement and Separation for Select Agency Positions

Today, the National Labor Relations Board (“NLRB” or “the Agency”) announced that it will offer voluntary early retirement and voluntary separation to employees holding eligible positions in designated locations within the Agency.
The Agency requested and obtained both Voluntary Early Retirement Authority (VERA) and Voluntary Separation Incentive Payments (VSIP) authority in order to better manage its caseload and workforce needs. For years, the deficits caused by flat funding of the Agency have been primarily addressed by voluntary personnel attrition. As a result, the NLRB has an imbalance in staffing in both headquarters and the NLRB’s regional offices. To ensure that the Agency is able to carry out its critical mission, the NLRB is utilizing the VERA and VSIP to realign Agency staffing with office caseloads. In addition to addressing the Agency’s current staffing imbalance, utilization of VERA and VSIP will enable the Agency to reallocate its limited resources and to, among other things, provide employees with the tools they need, including training and improvements in technology.
VERA changes the normal retirement eligibility to allow employees to voluntarily retire earlier, with an immediate annuity, with 20 years of service at age 50, or at 25 years of service regardless of age. VSIP provides a financial incentive for employees to voluntarily separate by optional retirement, voluntary early retirement, or resignation. The NLRB is offering both VERA and VSIP opportunities only to employees in targeted job categories. Applying for these opportunities is entirely voluntary and applications from employees in eligible positions will be processed in the order they are received.

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NLRB Administrative Law Judges Validly Appointed

The National Labor Relations Board today rejected a challenge regarding the appointment of its administrative law judges ("ALJs"), concluding that all of the Board’s ALJs have been validly appointed under the Appointments Clause of the United States Constitution.

     On June 21, 2018, the Supreme Court issued its decision in Lucia v. SEC, 585 U.S. ___, 138 S. Ct. 2044 (2018), finding that administrative law judges of the Securities and Exchange Commission (“SEC”) are inferior officers of the United States and thus must be appointed in accordance with the Appointments Clause, i.e., by the President, the courts, or the Head of Department. Id. at 2051. Unlike the SEC’s ALJs, the NLRB’s ALJs are appointed by the full Board as the “Head of Department” and not by other Agency staff members.

     The challenge was raised by WestRock Services, Inc. (“WestRock”) in Case 10-CA-195617 on a motion to dismiss. Chairman John F. Ring was joined by Members Mark Gaston Pearce, Lauren McFerran, Marvin E. Kaplan and William J. Emanuel in the order denying WestRock’s motion.

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Monday, August 6, 2018

Jones v. Sorenson

As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.

Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823

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Lacagnina v. Comprehend Systems, Inc.

An employee who recovers a judgment against an employer for lost compensation has not suffered a theft of labor for which he is entitled to recover treble damages and attorney fees under Penal Code Sec. 496(c).

Lacagnina v. Comprehend Systems, Inc. - filed Aug. 3, 2018, First District, Div. Four
Cite as 2018 S.O.S. 3817

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Friday, August 3, 2018

Honeycutt v. JPMorgan Chase Bank, N.A.

The Code of Civil Procedure and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards) require arbitrators in contractual arbitrations to make various disclosures about themselves, their experience, and their activity as private judges or, as they are sometimes called, “dispute resolution neutrals.”  Failure to make required disclosures may be a ground for disqualifying the arbitrator and, if the arbitrator was actually aware of the ground for disqualification, for vacating an award.

In this case, the arbitrator did not comply with several applicable disclosure requirements, which gave rise to multiple grounds for disqualification.  Because the arbitrator was actually aware of at least one of the grounds for disqualification, the resulting arbitration award was subject to vacatur.  Therefore, we reverse the trial court’s order denying the petition to vacate the award and granting the petition to confirm it.

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Boling v. Public Employment Relations Board

This case arises from unfair practice claims filed by unions after San Diego’s mayor sponsored a citizens’ initiative to eliminate pensions for new municipal employees and rebuffed union demands to meet and confer over the measure.  The Court of Appeal annulled a finding by respondent, the Public Employment Relations Board (PERB), that the failure to meet and confer constituted an unfair labor practice.  We granted review to settle two questions:  (1) When a final decision by PERB under the Meyers-Milias-Brown Act (the MMBA; Gov. Code, § 3500 et seq.) is appealed, what standards of review apply to PERB’s legal interpretations and findings of fact?;  (2) When a public agency itself does not propose a policy change affecting the terms and conditions of employment, but its designated bargaining agent lends official support to a citizens’ initiative to create such a change, is the agency obligated to meet and confer with employee representatives?

These questions are resolved by settled law and the relevant statutory language.  First, we have long held that PERB’s legal findings are entitled to deferential review.  They will not be set aside unless clearly erroneous, though the courts as always retain ultimate authority over questions of statutory interpretation.  The MMBA specifies that PERB’s factual findings are “conclusive” “if supported by substantial evidence.”  (§ 3509.5, subd. (b).)  Second, the duty to meet and confer is a central feature of the MMBA.  Governing bodies “or other representatives as may be properly designated” are required to engage with unions on matters within the scope of representation “prior to arriving at a determination of policy or course of action.”  (§ 3505.)  This broad formulation encompasses more than formal actions taken by the governing body itself.  Under the circumstances here, the MMBA applies to the mayor’s official pursuit of pension reform as a matter of policy.  The Court of Appeal erred, first by reviewing PERB’s interpretation of the governing statutes de novo, and second by taking an unduly constricted view of the duty to meet and confer.

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Wednesday, August 1, 2018

Nishiki v. Danko Meredith, APC

Nishiki v. Danko Meredith, APC (CA1/4 A147733  8/1/18) Wage & Hour/Waiting Time and Attorneys’ Fees

When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours.  (Lab. Code § 202, subd. (a).)  If the employer willfully fails to do so, the employee’s wages continue as a penalty from that due date until the wages are paid, for up to 30 days.  (§ 203.)  This case considers an award of these “waiting time” penalties, as well as an award of attorney fees to the employee for the employer’s unsuccessful appeal.  (§ 98.2.)

Taryn Nishiki, a former employee of defendant Danko Meredith P.C., filed a complaint with the California Labor Commissioner (the commissioner) seeking vacation wages, rest period premiums, and waiting time penalties.  She prevailed on her claim for waiting time penalties, and was awarded $4,250.  Defendant appealed the award to the superior court, which affirmed the commissioner’s award, and awarded Nishiki $86,160 in attorney fees.  On appeal, defendant contends the waiting time penalties are unwarranted and the attorney fee award was excessive.  We shall reduce the waiting time penalties and otherwise affirm the judgment.

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Peredia v. HR Mobile Services, Inc

A safety consultant is liable to an employee of the firm that hired the safety consultant when the employee establishes the elements of a negligent undertaking claim. To establish a negligent undertaking claim, a plaintiff must establish that the consultant undertook to render services to the employer, the services rendered were of a kind the consultant should have recognized as necessary for the protection of the employees of the employer, the consultant to exercise reasonable care in the performance of its undertaking, the failure to exercise reasonable care resulted in physical harm to an employee, and the consultant's carelessness either increased the risk of such harm, or the undertaking was to perform a duty owed by the employer to the employees, or the harm was suffered because of the reliance of the employer the employees upon the undertaking. Acts are "wrongful in their nature" for purposes of Civil Code Sec. 2343 when they constitute an independent tort, such as the tort of negligent undertaking.

Peredia v. HR Mobile Services, Inc - filed July 30, 2018, Fifth District
Cite as 2018 S.O.S. 3736

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