Wednesday, September 25, 2019

Williams v. Sacramento River Cats Baseball Club, LLC

Failing to hire a prospective employee based on race violates public policy, but the employer will not have committed a tort against the prospective employee because it owed no duty to that person; a Tameny action for wrongful discharge can only be asserted against an employer.

Williams v. Sacramento River Cats Baseball Club, LLC - filed Sept. 24, 2019, Third District
Cite as 2019 S.O.S. 2792

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Gerawan Farming v. Agricultural Labor Relations Board (Garcia)

An employee has no right of access under the federal and state Constitutions to on-the-record sessions of the mandatory mediation and conciliation proceedings between his employer and labor union.

Gerawan Farming v. Agricultural Labor Relations Board (Garcia) - filed Sept. 24, 2019, Fifth District
Cite as 2019 S.O.S. 2778

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Tuesday, September 24, 2019

Vazquez v. Jan-Pro Franchising International Inc.

Under Massachusetts law, the mere alignment of interests is insufficient to support preclusive effect against a nonparty; the doctrines of res judicata and law of the case do not bar a group of plaintiffs from litigating whether they qualified as employees of a company when they had been severed from a prior case and the plaintiff in that case had no legal relationship to the group plaintiffs. The retroactive application of the Dynamex employment test does not violate due process.

Vazquez v. Jan-Pro Franchising International Inc. - filed Sept. 24, 2019
Cite as 2019 S.O.S. 17-16096

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Monday, September 23, 2019

Southern California Pizza Co. v. Certain Underwriters at Lloyd’s London

An employment practices liability insurance policy exclusion relating to wage and hour or overtime law(s) concerns laws regarding duration worked and/or remuneration received in exchange for work.

Southern California Pizza Co. v. Certain Underwriters at Lloyd’s London - filed Aug. 27, 2019, publication ordered Sept. 20, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 2715

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Friday, September 20, 2019

NLRB Proposes Rulemaking Concerning Students

WASHINGTON, DC—The National Labor Relations Board (NLRB) will publish a Notice of Proposed Rulemaking (NPRM) in the Federal Register on September 23, 2019, proposing a rule regarding students. Addressing a recurring question regarding the definition of “employee” under Section 2(3) of the National Labor Relations Act (NLRA), the proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies.

Through issuance of the NPRM, the Board seeks public comment on its proposed view that students who perform services – including teaching and/or research – for compensation at a private college or university in connection with their studies are not “employees” under the NLRA. The basis for this proposed rule is the Board’s preliminary position, subject to revision in light of public comment, that the relationship these students have with their school is predominately educational rather than economic.

In announcing the proposed rule, NLRB Chairman John F. Ring stated: “In the past 19 years, the Board has changed its stance on this issue three times. This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.” Chairman Ring was joined by Board Members Marvin E. Kaplan and William J. Emanuel in issuing the proposed rulemaking. Board Member Lauren McFerran dissented.

The NPRM, including majority and dissenting views as well as relevant statistical appendices cited therein, can be accessed on the Board’s public website at

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Thursday, September 19, 2019

Alaama v. Presbyterian Intercommunity Hospital, Inc.

Business and Professions Code section 809.1 requires a hospital peer review board to give a physician notice and the right to request a hearing when the hospital revokes or terminates the physician’s membership, staff privileges, or employment for a “medical disciplinary cause or reason.”  In 2016 Presbyterian Intercommunity Hospital, Inc., doing business as PIH Health Hospital-Whittier, and PIH Health Physicians (collectively, the hospital) terminated Dr. Abdulmouti Alaama’s privileges and staff membership without giving him a hearing.  Dr. Alaama filed a complaint that included causes of action seeking a writ of administrative mandate, alleging, among other things, the hospital denied him the right to a hearing before terminating his privileges.  The trial court denied the petition.  Because the hospital terminated Dr. Alaama’s privileges and staff membership for a “medical disciplinary cause or reason,” we reverse.

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Thursday, September 12, 2019

Z.B. N.A. v. Superior Court (Lawson)

The civil penalties a plaintiff may seek under Labor Code §558 through the Private Attorneys General Act do not include the amount sufficient to recover underpaid wages; although §558 authorizes the Labor Commissioner to recover such an amount, this amount is not a civil penalty that a private citizen has authority to collect through the PAGA.

Z.B. N.A. v. Superior Court (Lawson) - filed Sept. 12, 2019
Cite as 2019 S.O.S. 2520

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Wednesday, September 11, 2019

Secretary of Labor v. Seward Ship’s Drydock, Inc.

The Respiratory Protection Standard’s §1910.134(d)(1)(iii) requires covered employers to evaluate the respiratory hazards at their workplaces whenever there is the potential for overexposure of employees to contaminants, in order to determine whether respirators are necessary to protect the health of employees.

Secretary of Labor v. Seward Ship’s Drydock, Inc. - filed Sept. 11, 2019
Cite as 2019 S.O.S. 18-71216

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Rudel v. Hawai’i Management Alliance Association

Challenges to an ERISA plan’s right to reimbursement are properly characterized as ERISA §502(a) claims; under §502, asserted remedies and causes of action that conflict with ERISA’s civil enforcement scheme are deemed preempted. When a claim is removed from state to federal court, the state law claim is reconfigured as a federal ERISA cause of action; §514 expressly preempts state laws that relate to any employee benefit plan but saves from preemption any state law that regulates insurance, banking, or securities. If a case is properly before a federal court under §502, then a state statute that is saved from preemption under §514 and does not conflict with §502, can supply the relevant rule of decision.

Rudel v. Hawai’i Management Alliance Association - filed Sept. 11, 2019
Cite as 2019 S.O.S. 17-17395

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Board Adopts Contract Coverage Standard for Determining Whether Unilateral Changes Violate the Act

WASHINGTON, DC—In a decision issued today, the National Labor Relations Board adopted the “contract coverage” standard for determining whether a unionized employer’s unilateral change in a term or condition of employment violates the National Labor Relations Act. In doing so, the Board abandoned the “clear and unmistakable waiver” standard, which has been rejected by several federal courts of appeals, notably including the Court of Appeals for the District of Columbia Circuit, which has plenary jurisdiction to review Board rulings.

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Tuesday, September 10, 2019

Head v. Wilkie

The panel reversed the district court’s order granting summary judgment to defendants in an action brought by Christian Head, M.D., an African-American, board-certified head and neck surgeon who filed a lawsuit against his employer, the Secretary of the Department of Veterans Affairs and individual employees alleging, in part, that his supervisors violated 42 U.S.C. § 1985(2) by conspiring to deter him from testifying in a colleague’s and his own civil rights cases.

The district court granted the defendants’ motion for summary judgment on the § 1985(2) conspiracy claim, relying on David v. United States, 820 F.2d 1038 (9th Cir. 1987), which held that only parties to the initial case who were “hampered in being able to present an effective case” can show injury sufficient to bring a section 1985(2) claim.

The panel held that this court’s decision in David was abrogated by Haddle v. Garrison, 525 U.S. 121, 126 (1998), to the extent that David limited section 1985(2) claims on statutory standing and injury grounds in conflict with Haddle. The panel held that a plaintiff asserting conspiracy under section 1985(2) need not show that the party in the original proceeding was hampered in presenting an effective case; interference with a witness’s employment is a cognizable injury for section 1985(2) purposes. The panel held that David’s limitations were irreconcilable with Haddle’s proclamation that intimidation or retaliation against witnesses in federal court proceedings constitute the “gist of the wrong” at which the statute is directed. The panel held that, as other sister circuits have recognized, this expanded view of section 1985(2) aligned with the Supreme Court’s broad reading of the Reconstruction civil rights acts like section 1985.

The panel held that plaintiff’s allegations that employees retaliated against him based on his testimony in a colleague’s federal civil rights case and in his own case alleged a cognizable injury. The panel reversed the district court’s order granting summary judgment to the defendant supervisors on plaintiff’s section 1985(2) conspiracy claim and remanded for further proceedings consistent with the panel’s opinion and with the concurrently filed unpublished memorandum, which addressed plaintiff’s remaining employment discrimination claims.

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Monday, September 9, 2019

Board Finds Partial Plant Unit at Boeing’s South Carolina Facility Not an Appropriate Unit

WASHINGTON, DC – The National Labor Relations Board held today that a petitioned-for unit at Boeing’s South Carolina plant that was limited to only two job classifications within an aircraft production line was not an appropriate unit for purposes of conducting a union election. In so doing, the Board applied and clarified the traditional community-of-interest standard. The case is The Boeing Company (10-RC-215878; 368 NLRB No. 67).

The decision resolves a petition filed by the International Association of Machinists Union for a unit of approximately 178 mechanics out of a workforce totaling over 2700 employees.  Boeing argued that the mechanics – flight-line readiness technicians and flight-line readiness technician inspectors – must be included in the larger community of workers at the aircraft production plant where the Company’s 787 Dreamliner is built.   

The Board noted its prior rejection of the “micro-unit” holding in Specialty Healthcare, 357 NLRB 934 (2011) and its return in PCC Structurals, Inc., 365 NLRB No. 160 (2017), to the traditional community-of-interest test. In one of the first cases applying the traditional test since issuing PCC Structurals, the Board set forth a clarifying, three-step analysis for determining whether a petitioned-for unit is appropriate. Under that analysis, the Board will consider (1) whether the members of the petitioned-for unit share a community of interest with each other, (2) whether the employees excluded from the unit have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members, and (3) guidelines the Board has established for appropriate unit configurations in specific industries.

In reaching its decision, the Board found that the mechanics in the petitioned-for unit did not share an internal community of interest and did not have sufficiently distinct interests from those employees excluded from the petitioned-for unit. The Board also concluded that there were no appropriate-unit guidelines specific to the employer’s industry. 

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in the majority opinion. Member McFerran, dissenting, would have found the petitioned-for unit appropriate.

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Wednesday, September 4, 2019

Thurston v. Midvale Corporation

Cheryl Thurston is blind and uses screen reader software (a screen reader) to access the Internet and read website content. She filed this lawsuit after she could not access appellant’s restaurant website,, with her screen reader.  Her complaint alleged appellant violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by violating the federal American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).

This appeal asks us to decide whether Title III of the ADA applies to this website, requiring appellant Midvale Corporation to render its restaurant website accessible to blind individuals such as Thurston.  Accessibility would require Midvale to redesign its website so it can be read aloud by screen reader software.  Appellant asks us to adopt the 20-year-old minority position of the United States Court of Appeals for the Third Circuit that the ADA applies to physical barriers to physical places only and to reverse the trial court’s imposition of an injunction and statutory damages and grant of summary judgment in favor of Thurston.  We decline to do so.

Appellant raises three other contentions.  First, it argues that even if the ADA applies to websites, summary judgment must be reversed because the statutory damages award and the injunction violate its right to due process.  Appellant next contends summary judgment must be reversed because there is a triable issue of fact as to whether providing a telephone number and email address is an acceptable alternative to a website accessible by screen readers.  Finally, appellant contends the injunction must be dissolved because it is overbroad and uncertain and Thurston lacked standing to claim prospective relief.  The claims invoking due process, standing, and overbreadth are claims appellant made in its own unsuccessful cross-motion for summary judgment. We agree with the trial court on all issues and affirm the judgment.

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Arias v. Residence Inn by Marriott

The panel vacated the district court’s order sua sponte remanding to state court a putative class action brought by employees against Residence Inn by Marriott, which had been removed to federal court under the Class Action Fairness Act.

The panel held that when a notice of removal plausibly alleges a basis for federal court jurisdiction, a district court may not remand the case back to state court without first giving the defendant an opportunity to show by a preponderance of the evidence that the jurisdictional requirements were satisfied. Marriott’s notice of removal alleged that the amount in controversy requirement was satisfied, and the district court did not conclude that Marriott’s allegations were implausible. The panel held that by remanding the case to state court sua sponte, the district court deprived Marriott of a fair opportunity to submit proof. The panel concluded that this error warranted vacatur of the remand order.

The panel held that when a defendant’s allegations of removal jurisdiction are challenged, the defendant’s showing on the amount in controversy may rely on reasonable assumptions. The panel held that Marriott’s notice of removal included personnel and payroll data, and with that data, Marriott estimated the amount-in-controversy by making assumptions that were plausible and may prove to be reasonable in light of allegations in the complaint. The panel held that on remand Marriott must show that its estimated amount in controversy relied on reasonable assumptions. The panel held that when a statute or contract provides for the recovery of attorneys’ fees, prospective attorneys’ fees must be included in the assessment of the amount in controversy.

The panel rejected plaintiff’s contention that the position taken by Marriott in its summary judgment motion in state court – that plaintiff’s claims are barred by a release from a prior class action settlement – defeated federal court jurisdiction.

The panel remanded on an open record for the district court to permit the parties to submit evidence and arguments on the amount in controversy.

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