California Court of Appeal - Employment Law Cases

Summary judgment was not appropriate on a disability discrimination claim where the record presented sufficient evidence from which a reasonable jury could conclude that an employer’s ultimate decision to terminate an employee was motivated, at least in substantial part, by concerns about the employee’s disability. Lin v. Kaiser Foundation Hospitals - filed Feb. 24, 2023, Second District, Div. Four Cite as 2023 S.O.S. 693 Full text click here > http://sos.metnews.com/sos.cgi?0223//B314162. The U.S. Supreme Court’s decision in Viking River Cruises v. Moriana and the Federal Arbitration Act do not invalidate the rule of California law that a provision in an arbitration agreement purporting to waive an employee’s right to pursue representative actions is not enforceable as to representative claims pursued under the Private Attorneys General Act; a severability clause in an arbitration agreement allows the unenforceable waiver provision to be stricken from the arbitration agreement. PAGA claims seeking to recover civil penalties for Labor Code violations suffered by employees other than plaintiff may be pursued by plaintiff in court. Galarsa v. Dolgen California - filed Feb. 2, 2023, publication ordered Feb. 24, 2023, Fifth District Cite as 2023 S.O.S. 699 Full text click here >http://sos.metnews.com/sos.cgi?0223//F082404A.

Daily eBriefs - February 24, 2023

Employment The phrase on behalf of the public as provided under applicable state law in Labor Code §248.5(e) was intended to refer to actions prosecuted under the Unfair Competition Law—not the Private Attorney General Act. Wood v. Kaiser Foundation Hospitals - filed Feb. 24, 2023, Fourth District, Div. One Cite as 2023 S.O.S. 632 Full text click here > http://sos.metnews.com/sos.cgi?0223//D079528

USCIS Issues Clarifying Guidance for Individuals Authorized to Work Under Special Student Relief Provisions

U.S. Citizenship and Immigration Services is issuing policy guidance in the USCIS Policy Manual to clarify the validity period of employment authorization for F-1 nonimmigrant students experiencing severe economic hardship due to emergent circumstances (also known as special student relief (SSR)) who are work authorized under the SSR provisions of 8 CFR. The update clarifies that in cases of severe economic hardship due to emergent circumstances, we may grant off-campus SSR employment authorization to an F-1 nonimmigrant student for the duration of the Federal Register notice validity period. This employment authorization may not extend past the student’s academic program end date. This update notes that we may issue employment authorization documents for the duration of the Federal Register notice, which is typically an 18-month validity period, as permitted by the relevant SSR Federal Register notice. Emergent circumstances are events that affect F-1 nonimmigrant students from a particular region and create severe economic hardship. These events may include, but are not limited to, natural disasters, financial crises, and military conflicts. This policy update will be effective when published and will apply to all pending and future applications for SSR employment authorization. For more information, visit us at http://www.beverlyhillsimmigrationlaw.com/index.html.

NINTH U.S. CIRCUIT COURT OF APPEALS

Constitutional Law The Federal Arbitration Act preempts California’s Assembly Bill 51; state rules that burden the formation of arbitration agreements stand as an obstacle to the FAA; the FAA preempts a state rule that discriminates against arbitration by discouraging or prohibiting the formation of an arbitration agreement. Chamber of Commerce v. Bonta - filed Feb. 15, 2023 Cite as 2023 S.O.S. 20-15291 Full text click here >http://sos.metnews.com/sos.cgi?0223//20-15291.

NINTH U.S. CIRCUIT COURT OF APPEALS

Employment Class certification was inappropriate where the putative class members could not establish their employer’s liability for failing to pay overtime wages or to reimburse expenses by common evidence. The California Court of Appeal has repeatedly limited Dynamex’s applications to claims based on or rooted in California’s wage orders; Dynamex did not apply to class members’ expense reimbursement claims based on Labor Code §2802, Borello’s multifactor and fact-intensive inquiry did. The court will exercise pendent appellate jurisdiction over interim fee awards that are inextricably intertwined with or necessary to ensure meaningful review of final orders on appeal. Bowerman v. Filed Asset Services - filed Feb. 14, 2023 Cite as 2023 S.O.S. 18-16303 Full text click here >

Ninth Circuit Court of Appeals Rejects Argument that President’s Removal of Former NLRB General Counsel was Improper, Upholding Validity of NLRB Complaint

On behalf of the NLRB Office of the General Counsel, Washington, DC: On Friday, January 27, 2023, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a unanimous decision in Aakash Inc., DBA Park Central Care and Rehabilitation Center v. NLRB, rejecting the argument that President Biden’s removal of former NLRB General Counsel Peter Robb was improper. In the decision authored by Judge Graber, and joined by Judges Wallach and Watford, the Court explained that the President’s power to remove derives from Article II of the Constitution and that no provision of the National Labor Relations Act (NLRA) curbed that power with respect to the NLRB General Counsel. This is in stark contrast to Congress’s clear and unequivocal provision of removal protection for NLRB Members. Accordingly, the Court upheld the validity of the NLRB complaint at issue and enforced the Board’s bargaining order. In April 2022, the Fifth Circuit’s opinion in Exela Enterprise Solutions, Inc. v. NLRB, also concluded that the President’s removal of General Counsel Robb was valid. In the Ninth Circuit’s opinion, the Court found “no reason to part ways with our sister circuit’s persuasive discussion.” The Aakash case was litigated in the Ninth Circuit Court of Appeals by a team of NLRB attorneys from the Appellate and Supreme Court Litigation Branch, as well as attorneys from the Department of Justice, with assistance from the NLRB’s Contempt, Compliance, and Special Litigation Branch. “I’m proud of the team of talented and committed public servants from the NLRB and DOJ for their excellent job on this case. The Ninth Circuit’s thorough and well-reasoned decision joins the growing chorus upholding the removal and appointment actions of the President with respect to the NLRB and affirming the critical enforcement efforts of the Agency,” said General Counsel Jennifer Abruzzo.

NLRB Extends Reply Comment Period on Proposed Fair Choice and Employee Voice Rule

Due to an administrative error on regulations.gov, six public comments intended for the NLRB’s proposed Fair Choice and Employee Voice rule were inadvertently filed under an unrelated docket. The issue has been resolved and the comments have been reassigned to the appropriate docket. In order to provide adequate time for the public to review all comments on the Notice of Proposed Rulemaking, the NLRB is extending the period for responsive comments to initial comments. Publication of this extension in the Federal Register is anticipated Wednesday, February 15, 2023, with the new deadline for responsive comments of Wednesday, March 1, 2023. Public reply comments are invited on the aspects of the proposed rule raised in the initial comments and should be submitted either electronically to regulations.gov, or by mail or hand-delivery to Roxanne L. Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001.

Daily eBriefs - February 13, 2023

Contracts Even though a party did not immediately move to compel arbitration, its actions did not amount to a relinquishment of the right to arbitrate where the party repeatedly reserved its right to arbitration, did not ask the district court to weigh in on the merits, did not engage in any meaningful discovery, and did not actively litigate the merits of the case for a prolonged period to take advantage of being in court. Armstrong v. Michael Stores - filed Feb. 13, 2023 Cite as 2023 S.O.S. 21-15397 Full text click here >http://sos.metnews.com/sos.cgi?0223//21-15397.

Daily eBriefs - February 6, 2023

The sovereign powers doctrine can apply to a hospital authority, but it is not a municipal corporation; the hospital authority is not excluded from the category of governmental entities under Labor Code §226; there are at least some Labor Code violations for which a Private Attorney General Act suit against a hospital authority can proceed. Stone v. Alameda Health System - filed Feb. 3, 2023, First District, Div. Five Cite as 2023 S.O.S. 479 Full text click here > http://sos.metnews.com/sos.cgi?0223//A164021.

Daily eBriefs - February 1, 2023

Employment A district court erred in finding no reasonable jury could find military leave comparable to non-military leave for purposes of the Uniformed Services Employment and Reemployment Rights Act; the court also erred by disregarding factual disputes about each of the three factors in the comparability analysis: duration, purpose, and control. Clarkson v. Alaska Airlines - filed Feb. 1, 2023 Cite as 2023 S.O.S. 21-35473 Full text click here >http://sos.metnews.com/sos.cgi?0223//21-35473

Daily eBriefs - January 31, 2023

Contracts The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act does not apply retroactively to a complaint filed before the act was signed into law. The highly secretive and one-sided provisions of a worker’s arbitration agreement make it both procedurally and substantively unconscionable. Murrey v. Superior Court (General Electric) - filed Jan. 30, 2023, Fourth District, Div. Three Cite as 2023 S.O.S. 434 Full text click here > http://sos.metnews.com/sos.cgi?0223//G061329.