Friday, March 29, 2019

Zakaryan v. The Men's Warehouse, Inc.

If an employee brings a solitary Private Attorneys General Act claim, a court cannot send the employee to arbitrate his individual damage claim and retain jurisdiction to award the additional, statutorily prescribed amounts.

Zakaryan v. The Men's Warehouse, Inc. - filed March 28, 2019, Second District, Div. Two 
Cite as 2019 S.O.S. 1499 

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Thursday, March 28, 2019

Salgado v. Carrows Restaurants Inc.

An agreement to arbitrate "any claim, dispute, and/or controversy" that an employee may have against her employer was applicable to the employee's claim of discrimination. An arbitration agreement may be applied retroactively to transactions which occurred prior to execution of the arbitration agreement.

Salgado v. Carrows Restaurants Inc. - filed Feb. 26, 2019, publication ordered March 25, 2019, Second District, Div. Six 
Cite as 2019 S.O.S. 1332 

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Kisor v. Wilkie


Auer v. Robbins, 519 U.S. 452 (1997), and Bowles Seminole Rock & Sand Co., 325 U.S. 410 (1945), direct courts to defer to an agency's reasonable interpretation of its own ambiguous regulation. Separately, in Brown v. Gardner, 513 U.S. 115, 118 (1994), the Court held that "interpretive doubt is to be resolved in the veteran's favor.”

Petitioner, a Marine veteran, seeks disability benefits for his service-related posttraumatic stress disorder (PTSD). While the Department of Veterans Affairs (VA) agrees that petitioner suffers from service-related PTSD, it has refused to award him retroactive benefits. The VA's decision turns on the meaning of the term "relevant" as used in 38 C.F.R. § 3.156(c)(l).

Below, the Federal Circuit found that petitioner and the VA both offered reasonable constructions of that term. On that basis alone, the court held that the regulation is ambiguous, and-invoking Auer- deferred to the VA's interpretation of its own ambiguous regulation. The questions presented are:

1. Whether the Court should overrule Auer and Seminole Rock.

2. Alternatively, whether Auer deference should yield to a substantive canon of construction.

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Wednesday, March 27, 2019

Salgado v. Carrows Restaurants Inc

An agreement to arbitrate "any claim, dispute, and/or controversy" that an employee may have against her employer was applicable to the employee's claim of discrimination. An arbitration agreement may be applied retroactively to transactions which occurred prior to execution of the arbitration agreement.

Salgado v. Carrows Restaurants Inc. - filed Feb. 26, 2019, publication ordered March 25, 2019, Second District, Div. Six 
Cite as 2019 S.O.S. 1332 

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Tuesday, March 26, 2019

Boling v. Public Employment Relations Bd.

This case arises from a decision by the Public Employment Relations Board (PERB) finding that the City of San Diego (City) violated the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; Act) when the City's mayor made a policy decision to advance a citizens' pension reform initiative (Initiative) without meeting and conferring with the affected employees' unions (Unions).  The California Supreme Court upheld PERB's finding that the mayor's actions violated the City's meet and confer obligations.  (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 913, 919 (Boling).)  The Supreme Court then remanded the matter to this court to "address the appropriate judicial remedy for the violation."  (Id. at p. 920.)  We also consider previously unaddressed challenges to PERB's administrative remedies.

As we shall explain, we decline the Unions' request to invalidate the Initiative as a judicial remedy because we conclude the Initiative's validity is more appropriately addressed in a separate quo warranto proceeding.  We further conclude we must modify PERB's compensatory and cease-and-desist remedies to prevent the remedies from impermissibly encroaching upon constitutional law, statutory law, and policy matters involving initiatives, elections, and the doctrine of preemption that are unrelated to the Act.  (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137, 144, 147 [122 S.Ct. 1275, 152 L.Ed.2d 271] (Hoffman Plastic) [a labor relations board's administrative remedies may not encroach upon statutes and policies unrelated to the board's enabling act].)

Specifically, we modify PERB's compensatory remedy to order the City to meet and confer over the effects of the Initiative and to pay the affected current and former employees represented by the Unions the difference, plus seven percent annual interest, between the compensation, including retirement benefits, the employees would have received before the Initiative became effective and the compensation the employees received after the Initiative became effective.  The City's obligation to comply with the compensatory remedy extends until completion of the bargaining process, including the exhaustion of impasse procedures, if an impasse occurs.  We modify PERB's cease-and-desist remedy to order the City to cease and desist from refusing to meet and confer with the Unions and, instead, to meet and confer with the Unions upon the Unions' request before placing a charter amendment on the ballot that is advanced by the City and affects employee pension benefits and/or other negotiable subjects.  As so modified, we affirm PERB's decision.

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Friday, March 22, 2019

NLRB Chairman Responds to Members of Congress Regarding Review of Joint-Employer Comments

Washington, DC — Earlier today, Chairman John F. Ring responded to a March 14, 2019 letter from Chairman Bobby Scott (D-VA) and Chairwoman Frederica Wilson (D-FL) regarding the Agency’s planned process for review of comments submitted in response to its Notice of Proposed Rulemaking (NPRM) on the joint-employer standard.

A copy of Chairman Ring’s letter is available here.

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.

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Tuesday, March 19, 2019

Garcia v. Salvation Army

The religious organization exemption in Title VII of the Americans with Disabilities Act is not jurisdictional and is subject to procedural forfeiture. The exemption does not apply only to hiring and firing decisions, but rather extends to both retaliation and hostile work environment claims.

Garcia v. Salvation Army - filed March 18, 2019 
Cite as 2019 S.O.S. 16-16827 

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Friday, March 15, 2019

Synergy Project Management, Inc. v. City and County of S.F.

The Subletting and Subcontracting Fair Practices Act (Pub. Contract Code, § 4100 et seq.) (Act), which governs public works projects, was enacted to protect the public and subcontractors from bidding practices that “often result in financial difficulties for subcontractors and poor workmanship on public improvements.” (Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 660 (Cal-Air Conditioning).)  To this end, section 4107, subdivision (a) (section 4107(a)) requires a prime contractor to obtain the consent of the awarding authority before replacing a subcontractor listed in the original bid, and it limits the awarding authority’s ability to consent to specified circumstances.  If the original subcontractor objects to being replaced, section 4107(a) requires the awarding authority to hold a hearing “on the prime contractor’s request for substitution.”

In this case, the City and County of San Francisco (City) entered a contract with prime contractor Ghilotti Bros., Inc. (Ghilotti) for a major renovation of Haight Street.  Consistent with its accepted bid, Ghilotti entered a contract with subcontractor Synergy Project Management, Inc. (Synergy) for Synergy to perform excavation and utilities work.  After Synergy broke five gas lines and engaged in other unsafe behavior, the City invoked a provision of its contract with Ghilotti to direct Ghilotti to remove Synergy from the project and substitute a new subcontractor.  Under protest, Ghilotti terminated Synergy and identified two potential replacement contractors to the City, and Synergy objected to being replaced.  A hearing was held under section 4107(a), and the hearing officer determined that Synergy’s poor performance established a statutory ground for substitution. 

Synergy and Ghilotti each filed a petition for a writ of administrative mandate in the trial court.  Abandoning any challenge to the determination that Synergy’s performance justified substitution, they contended the hearing officer lacked jurisdiction because Ghilotti had not made a “request” for substitution within the meaning of either section 4107(a) or the relevant provision of the City-Ghilotti contract.  The court agreed and granted the petitions.  On appeal, the City claims the court’s ruling was erroneous, and we agree.  Even though the statute contemplates that the prime contractor will normally be the party to seek substitution, the procedure followed here “complied in substance with every reasonable objective of the statute.”  (Titan Electric Corp. v. Los Angeles Unified School Dist. (2008) 160 Cal.App.4th 188, 208 (Titan).)  Thus, the hearing officer had jurisdiction under the Act to issue a decision, and we need not address whether jurisdiction separately existed under the City-Ghilotti contract. Accordingly, we reverse.

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Thursday, March 14, 2019

Myers v. Raley's

A trial court's denial of class certification which did not provide reasons for the finding that common issues did not predominate must be overturned when there is a possibility the trial court may have focused on the individual issues concerning the right to recover damages rather than the putative class theory of recovery. When the putative class alleged their employer maintained uniform policies and/or practices denying them travel time while they are under the employer's control, the issue is not whether different managers exercised control in a myriad of ways with different categories of workers, but whether the employer had the right to control them.

Myers v. Raley's - filed Feb. 13, 2019, publication ordered March 12, 2019, Third District 
Cite as 2019 S.O.S. 1176 

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Monday, March 11, 2019

Su v. Stephen S. Wise Temple

This case was brought by plaintiff and appellant Labor Commissioner Julie Su (Commissioner) on behalf of preschool teachers employed by defendant and respondent Stephen S. Wise Temple (Temple). The Commissioner alleged that the Temple violated various provisions of the Labor Code by failing to provide its preschool teachers with rest breaks, uninterrupted meal breaks, and overtime pay. The trial court granted summary judgment in favor of the Temple, concluding the Commissioner’s claims were barred by the “ministerial exception”—a constitutional doctrine that provides a complete defense to certain employment claims brought against religious institutions by or on behalf of persons classified as ministerial employees.

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology. Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception. We therefore reverse the judgment and remand for further proceedings.

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Tuesday, March 5, 2019

BNSF Railway Co. v. Loos

Respondent Michael Loos sued petitioner BNSF Railway Company under the Federal Employers’ Liability Act (FELA) for injuries he received while working at BNSF’s railyard. A jury awarded him $126,212.78, ascribing $30,000 of that amount to wages lost during the time Loos was unable to work. BNSF asserted that the lost wages constituted “compensation” taxable under the Railroad Retirement Tax Act (RRTA) and asked to withhold $3,765 of the $30,000 to cover Loos’s share of the RRTA taxes. The District Court and the Eighth Circuit rejected the requested offset, holding that an award of damages compensating an injured railroad worker for lost wages is not taxable under the RRTA.

Held: A railroad’s payment to an employee for working time lost due to an on-the-job injury is taxable “compensation” under the RRTA. Pp. 2–14.

(a) In 1937, Congress created a self-sustaining retirement benefits system for railroad workers. The RRTA funds the program by imposing a payroll tax on both railroads and their employees, referring to the railroad’s contribution as an “excise” tax, 26 U. S. C. §3221, and the employee’s share as an “income” tax, §3201. The Railroad Retirement Act (RRA) entitles railroad workers to various benefits. Taxes under the RRTA and benefits under the RRA are meas-ured by the employee’s “compensation,” which both statutes define as “any form of money remuneration paid to an individual for services rendered as an employee.” §3231(e)(1); 45 U. S. C. §231(h)(1).

The statutory foundation of the railroad retirement system mirrors that of the Social Security system. The Federal Insurance Contributions Act (FICA) taxes employers and employees to fund benefits distributed pursuant to the Social Security Act (SSA). Tax and benefit amounts are determined by the worker’s “wages,” the Social Security equivalent to “compensation.” Both the FICA and the SSA define “wages” employing language resembling the RRTA and the RRA definitions of “compensation.” The term “wages” means “all remuneration” for “any service, of whatever nature, performed . . . by an employee.” 26 U. S. C. §3121(a)–(b) (FICA); see 42 U. S. C. §§409(a), 410(a) (SSA). Pp. 2–4.

(b) Given the textual similarity between the definitions of “compensation” and “wages,” the decisions on the meaning of “wages” in Social Security Bd. v. Nierotko, 327 U. S. 358, and United States v. Quality Stores, Inc., 572 U. S. 141, inform this Court’s comprehension of the RRTA term “compensation.” In Nierotko, the Court held that “wages” embraced pay for active service as well as pay received for periods of absence from active service, 327 U. S., at 366, and concluded that backpay for time lost due to “the employer’s wrong” counted as “wages,” id., at 364. In Quality Stores, the Court held that severance payments qualified as “wages” taxable under the FICA. 572 U. S., at 146–147. In line with these decisions, the Court holds that “compensation” under the RRTA encompasses not simply pay for active service but also pay for periods of absence from active service—provided that the remuneration in question stems from the “employer-employee relationship.” Nierotko, 327 U. S., at 366.

Damages awarded under the FELA for lost wages fit comfortably within this definition. See BNSF R. Co. v. Tyrrell, 581 U. S. ___, ___. If a railroad negligently fails to maintain a safe railyard and a worker is injured as a result, the FELA requires the railroad to compensate the injured worker for working time lost due to the employer’s wrongdoing. FELA damages for lost wages, like backpay, are “compensation” taxable under the RRTA. Pp. 4–7.

(c) The Eighth Circuit construed “compensation” for RRTA purposes to mean only pay for active service, but this reading cannot be reconciled with Nierotko and Quality Stores. In addition, the RRTA’s pinpointed exclusions for certain types of payments for time lost signal that nonexcluded pay for time lost remains RRTA-taxable “compensation.” Pp. 7–10.

(d) Loos contends that “compensation” does not include payments made to compensate for an injury. This reading, however, is at odds with Nierotko, which held that “wages” included backpay awarded to redress “the loss of wages” occasioned by “the employer’s wrong.” 327 U. S., at 364.

Loos also argues that the exclusion of personal injury damages from “gross income” for federal income tax purposes, see 26 U. S. C. §104(a)(2), should carry over to the RRTA’s tax on the “income” of railroad workers. The RRTA, however, uses the term “income” merely to distinguish the “income” tax on an employee from the matching “excise” tax on a railroad. Further, Congress specified not “gross income” but employee “compensation” as the tax base for RRTA taxes. Congress did not exclude personal injury damages from “compensation.” Pp. 10–14.

865 F. 3d 1106, reversed and remanded.

GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J., and BREYER, ALITO, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., joined.

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Monday, March 4, 2019

Cal Fire Local 2881 v. California Public Employers' Retirement System

A public employee's ability to purchase additional retirement service credits was not a term and condition of public employment protected from impairment by the constitutional contract clause. The opportunity to purchase such credit therefore could be altered or eliminated at the discretion of the Legislature.

Cal Fire Local 2881 v. California Public Employers' Retirement System - filed March 4, 2019 
Cite as 2019 S.O.S. 1030

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Friday, March 1, 2019

NLRB Sets Standards Affecting Beck Objectors Union Lobbying Expenses Are Not Chargeable

Washington, DC—Nonmember objectors cannot be compelled to pay for union lobbying expenses, the National Labor Relations Board ruled today. The Board majority held that lobbying activity, although sometimes relating to terms of employment or incidentally affecting collective bargaining, is not part of the union’s representational function, and therefore lobbying expenses are not chargeable to Beck objectors. The ruling relies on relevant judicial precedent holding that a union violates its duty of fair representation if it charges agency fees that include expenses other than those necessary to perform its statutory representative functions.

The Board majority also held that it is not enough for a union to provide objecting nonmembers with assurances that its compilation of chargeable and nonchargeable expenses has been appropriately audited. Citing the “basic considerations of fairness” standard adopted by the Supreme Court, the Board held that a union must provide independent verification that the audit had been performed. Failure to do so violates the union’s duty of fair representation.

The case, United Nurses & Allied Professionals (Kent Hospital), is the Board’s long-awaited decision affecting certain rights of nonmember objectors under the Supreme Court’s decision in Communications Workers of America v. Beck, 487 U.S. 735 (1988). In that decision, the Supreme Court held that private-sector nonmember employees subject to union security who object to the expenditure of their agency fees for activities other than collective bargaining, contract administration, or grievance adjustment can only be compelled to pay that portion of the agency fee necessary to the union’s performance of “the duties of an exclusive representative of employees in dealing with the employer on labor-management issues.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member Lauren McFerran dissented.

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Board Extends Time for Filing Amicus and Responsive Briefs Regarding Jurisdiction Over Charter Schools

Washington, DC — On February 4, 2019, the National Labor Relations Board invited the filing of briefs in KIPP Academy Charter School, 02-RD-191760, to allow parties and interested amici an opportunity to address whether the Board should exercise its discretion to decline jurisdiction over charter schools as a class under Section 14(c)(1) of the National Labor Relations Act (NLRA), and, therefore, modify or overrule the 2016 Hyde Leadership Charter School—Brooklyn, and Pennsylvania Virtual Charter School decisions.

To aid in the consideration of the issues raised in the above-named case, the Board has now extended the time for filing amicus and responsive briefs in this matter (the deadline for filing briefs on review was previously extended). Parties now have until March 6, 2019 to file briefs on review and interested amici now have until March 20, 2019 to file amicus briefs. The deadline for parties to file responsive briefs has been extended to April 3, 2019.

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Laker v. Bd. of Trustees of the Cal. State Univ.

Dr. Jason Laker (Laker) sued the Board of Trustees of the California State University (University) and Mary McVey for defamation and retaliation arising from a series of internal investigations conducted by the University.  The defendants filed an anti-SLAPP motion to strike the complaint under Code of Civil Procedure section 425.16, which the trial court denied on the ground that the defendants failed to show that Laker’s defamation and retaliation claims arose from any activity protected by section 425.16.  For the reasons explained below, we agree with the University and McVey that the trial court erred in that finding as to Laker’s defamation claim.  However, we affirm the trial court’s denial of the University’s motion to strike Laker’s retaliation claim, although we strike one allegation contained in that claim.

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