Board Restores Prior Standard Governing Employer Statements about Unionization’s Impact on Employer-Employee Relationship

November 08, 2024 Today, the National Labor Relations Board issued a decision in Siren Retail Corp d/b/a Starbucks, overruling Tri-Cast, Inc., 274 NLRB 377 (1985) and clarifying the test that the Board will use to evaluate whether employer predictions about the impact of unionization on the relationship between individual employees and their employer are unlawful threats. While Tri-Cast deemed most employer statements about the impact of unionization on the relationship between individual employees and their employer to be categorically lawful, moving forward the Board will analyze such statements under the same longstanding test it uses to evaluate other potentially threatening or coercive statements. That approach, which is grounded in the Supreme Court’s decision in NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), mandates that – to be lawful – employer predictions of negative impacts from unionization “must be carefully phrased on the basis of objective fact to convey an employer’s belief as to demonstrably probable consequences beyond [its] control.” If such a prediction is not grounded in objective fact, or predicts negative consequences that would result from the employer’s own actions, it is “no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion.” The Board made clear that this change in the governing standard will be applied prospectively only, to appropriately accommodate the reasonable reliance employers may have previously placed on Tri-Cast’s categorical rule. “The rule that we return to today brings greater consistency to the Board’s approach in evaluating potentially threatening statements,” said Chairman Lauren McFerran. “By evaluating employer predictions regarding unionization in a careful and case-specific manner, the Board better protects workers’ right to make a free and fair choice about union representation while respecting an employer’s prerogative to share their views in a non-coercive manner.”

Bedard v. City of Los Angeles - filed Oct. 31, 2024, Second District, Div. Three

Administrative Law Substantial evidence supported a trial court’s conclusion that a police officer was terminated due to her refusal to take the COVID-19 vaccine; the City of Los Angeles lawfully passed a legal ordinance requiring all city employees to become vaccinated against COVID-19 or request an exemption and follow the testing procedures. Bedard v. City of Los Angeles - filed Oct. 31, 2024, Second District, Div. Three Cite as 2024 S.O.S. 3490 Full text click here >http://sos.metnews.com/sos.cgi?1124//B331062

Bath v. State - filed Sept. 25, 2024

Employment Law A trial court should have accepted as true plaintiffs’ allegations providing security at a prison was among the principal activities they were employed to perform in considering the merits of the defendant’s demurrer; whether the plaintiffs provide safety and security was a question of fact that cannot be resolved on demurrer. Plaintiffs may bring wage claims only to the extent they claim they were not paid for time they spent on work-related activities that are compensable under their union’s memorandum of understanding, and the Fair Labor Standards Act; they could not separately claim they are also entitled to additional compensation under the general state wage laws of Labor Code. Bath v. State - filed Sept. 25, 2024, publication ordered Oct. 23, 2024, First District, Div. Two Cite as 2024 S.O.S. 3345 Full text click here >http://sos.metnews.com/sos.cgi?1024//A167908.

Wentworth v. Regents of the University of California

Employment Law A public university professor raised a triable issue of material fact about whether the university’s regents violated the Information Practices Act by leaking to the media a letter about student complaints against him and disclosing information about his disability accommodation at a faculty and student meeting. Wentworth v. Regents of the University of California - filed Sept. 30, 2024, First District, Div. Four Cite as 2024 S.O.S. 3388 Full text click here >http://sos.metnews.com/sos.cgi?1024//A168296

Doe v. Second Street Corporation

Employment Law Under the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act, a plaintiff’s sexual harassment claims alleging continuing violations both before and after the EFAA’s effective date are exempt from mandatory arbitration; plaintiff’s other causes of action are also exempt from mandatory arbitration under the EFAA because they are part of the same case. Doe v. Second Street Corporation - filed Sept. 30, 2024, Second District, Div. Three Cite as 2024 S.O.S. 3381 Full text click here >http://sos.metnews.com/sos.cgi?1024//B330281.

Mooney v. Fife; filed Sept. 30, 2024

Employment Law A False Claims Act retaliation claim requires proof of three elements: protected conduct; notice; and causation. In analyzing a retaliation claim, a court must use the McDonnell Douglas burden-shifting framework, rather than the Mt. Healthy framework commonly applied to First Amendment retaliation claims. The “investigating” requirement established by U.S. ex rel. Hopper v. Anton does not apply when the employee alleges that he was discharged because of efforts to stop violations of the False Claims Act. Mooney v. Fife; filed Sept. 30, 2024 http://sos.metnews.com/sos.cgi?1024//22-16328

Wentworth v. Regents of the University of California

Trial court erred in granting summary adjudication to U.C. Berkeley assistant professor's invasion of privacy claim. https://www.dailyjournal.com/users/sign_in

Miller v. Department of Corrections and Rehabilitation - filed Sept. 6, 2024, publication ordered Sept. 23, 2024, Fourth District, Div. Two

An employer was not prohibited from taking adverse employment actions against plaintiff where employer presented evidence plaintiff could not perform the essential duties of her position, plaintiff did not present any evidence to dispute the essential duties of a her position nor did she present any evidence to suggest that her disability-related restrictions would permit her to perform the essential duties of her position. Even if the employer failed to engage in the interactive process and failed to offer a reasonable accommodation, this would not compel the conclusion that it is liable for disability discrimination. A disability retirement in the Public Employees Retirement System is not a reasonable accommodation within the meaning of Government Code §12940(m)(1). Miller v. Department of Corrections and Rehabilitation - filed Sept. 6, 2024, publication ordered Sept. 23, 2024, Fourth District, Div. Two Cite as 2024 S.O.S. 3323 Full text click here >http://sos.metnews.com/sos.cgi?0924//E081230.

Silloway v. City & County of San Francisco - filed Sept. 11, 2024

Employment Law To determine whether employees are compensated on a salary basis, courts must look beyond conclusory language in contracts and similar documents, such as a city’s salary ordinance, to analyze how employees are actually paid; the proper focus for the salary basis test is whether an employee receives a predetermined amount of compensation on a weekly or less frequent basis, irrespective of any promises made in an employment contract. Silloway v. City & County of San Francisco - filed Sept. 11, 2024 Cite as 2024 S.O.S. 22-16079 Full text click here >http://sos.metnews.com/sos.cgi?0924//22-16079.

Adams v. County of Sacramento - filed Sept. 9, 2024

Employment Law The sending of private text messages to two friends during a friendly, casual text message conversation, forwarding offensive racist spam images, and complaining about the images does not constitute a matter of legitimate public concern within the meaning of Pickering v. Board of Education. Adams v. County of Sacramento - filed Sept. 9, 2024 Cite as 2024 S.O.S. 23-15970 Full text click here >http://sos.metnews.com/sos.cgi?0924//23-15970

Board Issues Decision Ending Practice of Consent Orders

August 22, 2024 Today, the Board issued a decision in Metro Health, Inc. d/b/a Hospital Metropolitano Rio San Pedras overruling UPMC (2017) and holding that the Board will no longer accept “consent orders,” where an Administrative Law Judge resolves an unfair labor practice case based on terms offered by the Respondent but objected to by both the Charging Party and the General Counsel. The Board majority concludes that the current practice fails to serve the goals of the National Labor Relations Act because it does not facilitate a truly mutual resolution of labor disputes. The decision explains that the practice of accepting consent orders seems contrary to the language of the Board’s Rules and Regulations, creates administrative difficulties and inefficiencies, and tends to interfere with the prosecutorial authority of the General Counsel. The Board, however, reaffirmed its longstanding practice of accepting true settlement agreements between a respondent and the General Counsel and/or a charging party in lieu of finally adjudicating an unfair labor practice case on the merits, where accepting the settlement would effectuate the policies of the Act. “Because consent orders do not represent a real agreement between opposing parties to resolve a case, they do not promote labor peace in the same manner as a true settlement,” said Chairman Lauren McFerran. “Our decision in Hospital Metropolitano preserves the benefits of true settlements, while eliminating a practice that has no foundation in the Act or our regulations.” Members Prouty and Wilcox joined Chairman McFerran in issuing the decision. Member Kaplan dissented.

Samuelian v. Life Generations Healthcare

Noncompetition agreements arising from the sale of an entire business interest are void per se, but a sale of a partial business interest differs drastically from the sale of an entire business interest, and so a noncompetition provision arising from a partial sale cannot be deemed inherently anticompetitive and invalidated per se; the provision must be scrutinized under the reasonableness standard to determine whether it has procompetitive benefits given the nature of the selling owner’s continuing connection to the business. Samuelian v. Life Generations Healthcare - filed Aug. 20, 2024, Fourth District, Div. Three Cite as 2024 S.O.S. 2870 Full text click here >http://sos.metnews.com/sos.cgi?0824//G061911.

NetChoice v. Bonta; filed Aug. 16, 202

Employment A national trade association of online businesses that promotes free speech on the Internet was likely to succeed in showing that the California Age-Appropriate Design Code Act’s requirement that covered businesses opine on and mitigate the risk that children may be exposed to harmful or potentially harmful materials online facially violates the First Amendment. NetChoice v. Bonta; filed Aug. 16, 202 http://sos.metnews.com/sos.cgi?0824//23-2969 Cite as 2024 S.O.S. 23-296

Kennedy v. Las Vegas Sands - filed Aug. 1, 2024

Employment Law Pilots qualify as highly compensated employees exempt from the Fair Labor Standards Act’s overtime requirements; time pilots spend waiting for a request to fly did not constitute work mandating overtime pay because they could and did freely engage in personal activities during this time. Kennedy v. Las Vegas Sands - filed Aug. 1, 2024 Cite as 2024 S.O.S. 23-15311 Full text click here >http://sos.metnews.com/sos.cgi?0824//23-15311.

Christy Kwon Named Regional Director for Region 32-Oakland

Today, General Counsel Jennifer A. Abruzzo announced the appointment of Christy Kwon as the Regional Director of the NLRB Region 32-Oakland office. With a Regional Office in Oakland, California, Region 32 is responsible for conducting elections, investigating unfair labor practice charges, and protecting the right of workers to act collectively to improve their wages and working conditions throughout northern and central California and northern Nevada. “Christy is an exemplary public servant with a strong commitment to the National Labor Relations Act,” said General Counsel Jennifer Abruzzo. “I am certain that she will use her considerable talents and expertise in this new leadership role and will strive to fully effectuate the Act and faithfully serve the public every day.” Ms. Kwon is a graduate of University of California-Berkeley, where she earned dual bachelor’s degrees in Sociology and Ethnic Studies. Upon earning her J.D. at UCLA School of Law, Ms. Kwon began her legal career with the NLRB as a Field Attorney in Los Angeles (Region 31). She then served as a Field Attorney in San Francisco (Region 20) and in 2012, was promoted to Supervisory Field Attorney. In 2017, she was appointed as Regional Attorney of the NLRB’s Oakland office (Region 32).

Ruelas v. County of Alameda

Non-convicted incarcerated individuals performing services in county jails for a for-profit company to supply meals within the county jails and related custody facilities do not have a claim for minimum wages and overtime under California Labor Code §1194, even in the absence of a local ordinance prescribing or prohibiting the payment of wages for these individuals. Ruelas v. County of Alameda - filed July 26, 2024 Cite as 2024 S.O.S. 21-16528 Full text click here >http://sos.metnews.com/sos.cgi?0724//21-16528

NLRB Issues Fair Choice–Employee Voice Final Rule

Today, the Board issued its Fair Choice–Employee Voice Final Rule, restoring three key policies that provide workers with a fair opportunity to decide whether they want union representation in the workplace and a process that respects workers’ choices: the blocking charge policy, voluntary recognition of a union, and construction industry bargaining relationships. The Final Rule returns to the Board’s pre-2020 practice on blocking charges before an election, restoring a Regional Director’s authority to delay an election if unfair labor practice conduct is sufficiently serious to interfere with employee free choice. Today’s rule reverses the Board’s 2020 rule requiring Regional Directors to run elections in an election environment tainted by unfair labor practices. Secondly, today’s rule supports workers’ and employers’ ability to establish a bargaining relationship through voluntary recognition. It removes the 2020 rule’s requirement that when an employer chooses to voluntarily recognize a union that represents a majority of its workers, the parties provide for a mandatory 45-day period to allow the opportunity for a minority of workers to demand an election questioning that choice. The rule also restores the Board’s 56-year-old voluntary recognition bar, respecting the bargaining relationship that the parties have voluntarily chosen. Finally, the Fair Choice – Employee Voice rule grants parity between unions in the construction industry and other unions. Because of the transitory nature of work in the construction industry, construction-worker unions that are recognized under Section 8(f) of the National Labor Relations Act do not have the same protections as non-construction unions. The new rules allow construction-worker unions to more readily establish the same protections as other unions, providing a more stable foundation for collective bargaining. “Today’s rule restores the Board’s prior law, including longstanding principles that ensure a fair process for workers to choose whether they want representation, and provide a better foundation to allow collective bargaining relationships to thrive,” said Chairman Lauren McFerran. The Notice of Proposed Rulemaking was published by the Federal Register on November 3, 2022 and the comment period for initial comments was open until February 2, 2023. The Board received a variety of comments that it reviewed and considered in drafting the Final Rule. The effective date of the new rule is September 30th, and the rule will only be applied to cases filed after the effective date. Members Prouty and Wilcox joined Chairman McFerran in issuing the Final Rule. Member Kaplan dissented.

Castellanos v. State - filed July 25, 2024

Employment Law Business and Professions Code §7451 does not conflict with article XIV, §4 of the California Constitution because the latter provision does not preclude the electorate from exercising its initiative power to legislate on matters affecting workers’ compensation. Castellanos v. State - filed July 25, 2024 Cite as 2024 S.O.S. 2525 Full text click here >http://sos.metnews.com/sos.cgi?0724//S279622

Okonowsky v. Garland - filed July 25, 2024

Employment Law A totality of the circumstances in a Title VII sexually hostile work environment claim includes evidence of sexually harassing conduct, even if it does not expressly target the plaintiff, as well as evidence of non-sexual conduct directed at the plaintiff that a jury could find retaliatory or intimidating. Okonowsky v. Garland - filed July 25, 2024 Cite as 2024 S.O.S. 23-55404 Full text click here >http://sos.metnews.com/sos.cgi?0724//23-55404.

Region 6-Pittsburgh Obtains Settlement of More than $198,000 for Unlawfully Withheld Wage Increases and Terminations of Workers

On July 5, 2024, the Regional Director of the NLRB’s Region 6-Pittsburgh office obtained a settlement agreement involving four unfair labor practice charges filed by the United Steelworkers International Union against Hello Neighbor, a Pittsburgh nonprofit. The unfair labor practice charges alleged multiple violations of the National Labor Relations Act (“Act”) by Hello Neighbor, including unlawfully terminating five employees for their union support and a supervisor for failing to commit unfair labor practices, as well as denying wage increases to 22 employees. Hello Neighbor agreed to pay more than $198,000 to the employees which includes backpay, wage increases, interest, and compensation for direct or foreseeable pecuniary harms that resulted from the unfair labor practices. Among other remedies obtained in the settlement, Hello Neighbor agreed to: Post and email a remedial notice to all employees who have worked at Hello Neighbor since January 2023; Post an Explanation of Rights under the Act for a one-year period; Rescind discipline and provide a neutral reference for all of the terminated employees and supervisor; Rescind the overly broad Proprietary Information, Confidentiality of Agreement, and Non-Disparagement portions of the separation agreement and notify employees who signed it that those provisions have been rescinded. “I am proud of the Region 6 staff for their efforts in protecting employee rights and achieving a settlement in accordance with the General Counsel’s goal of obtaining fully restorative relief,” said NLRB Region 6 Regional Director Nancy Wilson. “This settlement vindicates employee rights under the National Labor Relations Act by achieving significant monetary remedies for direct or foreseeable harms, along with provisions to ensure the employer’s future compliance with the Act.” For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

NLRB General Counsel Reaffirms Commitment to Seeking Injunctions to Protect Workers’ Rights

In a new memorandum to all field offices released today, the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo reaffirmed her commitment to seeking Section 10(j) injunctions after the Supreme Court’s recent decision in Starbucks Corp. v. McKinney, which set a uniform four-part test applicable to all Section 10(j) injunction petitions. Section 10(j) of the National Labor Relations Act (NLRA) authorizes the NLRB to seek injunctions against employers and unions in federal district courts to stop unfair labor practices and ensure that employees’ rights will be adequately protected from remedial failure due to the passage of time. General Counsel Abruzzo explained that, while the Supreme Court’s decision in Starbucks Corp. provides a uniform standard to be applied in all Section 10(j) injunctions nationwide, adoption of this standard will not have a significant impact on the Agency’s Section 10(j) program as the Agency has ample experience litigating injunctions under that standard and has a high rate of success in obtaining injunctions under the four-part test —a success rate equivalent to or higher than the success rate in circuit courts that applied the two-part test. “Effective enforcement of our statute requires that we timely protect employees’ Section 7 rights to engage in union and protected concerted activities free from retaliation,” said General Counsel Abruzzo. “Thus, it remains my intention to aggressively seek Section 10(j) injunctions where necessary to preserve the status quo and efficacy of Board final orders. And, I have no doubt that the Regions will continue to be successful in obtaining injunctive relief at around the same rate.” General Counsel Abruzzo previously released a memorandum underscoring the importance of 10(j) injunction proceedings and affirming the Agency’s priority in continuing efforts to obtain immediate relief in cases that present a significant risk of remedial failure. She also announced an initiative to seek injunctions in certain cases where workers have been subject to threats or other coercive conduct during an organizing campaign, as well as a memorandum about settlement agreements providing for interim relief pending adjudication.

Kama v. Mayorkas - filed July 19, 2024

Employment Law The temporal proximity between a workers formal equal employment office complaint and the date on which his employment was terminated was not sufficient, by itself, to show pretext where the gap was 56 days, and there was also a temporal link between his failure to cooperate in an investigation of his conduct and his termination. Kama v. Mayorkas - filed July 19, 2024 Cite as 2024 S.O.S. 23-55106 Full text click here >http://sos.metnews.com/sos.cgi?0724//23-55106.

Lopez v. Aircraft Service International - filed July 19, 2024

Contracts An airline fuel technician is a transportation worker engaged in foreign or interstate commerce exempt under 9 U.S.C. §1 from the arbitration requirements imposed by the Federal Arbitration Act; a fuel technician who places fuel in a plane used for foreign and interstate commerce is a transportation worker engaged in commerce because such a worker plays a direct and necessary role in the free flow of goods across borders; to fall within the exemption, there is no requirement that the worker have hands-on contact with goods and cargo or be directly involved in the transportation of the goods. Lopez v. Aircraft Service International - filed July 19, 2024 Cite as 2024 S.O.S. 23-55015 Full text click here >http://sos.metnews.com/sos.cgi?0724//23-55015.

Cadena v. Customer Connexx LLC - filed July 10, 2024

Employment Law The U.S. Supreme Court’s decision in Sandifer v. U.S. Steel did not disturb circuit case law on the de minimis doctrine in the context of a Fair Labor Standards Act claim under 29 U.S.C. §207. Cadena v. Customer Connexx LLC - filed July 10, 2024 Cite as 2024 S.O.S. 23-15820 Full text click here >http://sos.metnews.com/sos.cgi?0724//23-15820

Perez v. Barrick Goldstrike Mines - filed June 28, 2024

The Family and Medical Leave Act does not require an employer to present contrary medical evidence before contesting a doctor’s certification of a serious health condition. Perez v. Barrick Goldstrike Mines - filed June 28, 2024 Cite as 2024 S.O.S. 23-15043 Full text click here >http://sos.metnews.com/sos.cgi?0724//23-15043.

Keeton v. Tesla - filed June 26, 2024, First District, Div. One

Contracts Code of Civil Procedure §1281.98 is not preempted by the Federal Arbitration Act. Keeton v. Tesla - filed June 26, 2024, First District, Div. One Cite as 2024 S.O.S. 2115 Full text click here >http://sos.metnews.com/sos.cgi?0624//A166690.

Rajaram v. Meta Platforms - filed June 27, 2024

Employment Law 42 U.S.C. § 1981 prohibits discrimination in hiring against United States citizens on the basis of their citizenship. Rajaram v. Meta Platforms - filed June 27, 2024 Cite as 2024 S.O.S. 22-16870 Full text click here >http://sos.metnews.com/sos.cgi?0624//22-16870.

Frayo v. Martin

Health Care Law A worker’s refusal to take and provide the results of a COVID-19 test is not the equivalent to a refusal to sign an authorization under the Confidentiality of Medical Information Act; a worker’s description of his own symptoms is not medical information for purposes of the act. The plain language of Civil Code §56.20(c) limits its application to employers who already have possession of the employee/patient’s CMIA defined medical information. Frayo v. Martin - filed May 29, 2024, publication ordered June 21, 2024, Sixth District Cite as 2024 S.O.S. 2050 http://sos.metnews.com/sos.cgi?0624//H050689

Hardell v. Vanzyl

Civil Procedure A business-related power imbalance does not, without more, establish a sexual harassment claim; where a plaintiff made no allegations that defendant made sexual overtures in California, California did not have specific jurisdiction over defendant. A defendant’s domicile does not necessarily end the inquiry into a court’s general jurisdiction over him. Hardell v. Vanzyl - filed June 20, 2024, First District, Div. Four Cite as 2024 S.O.S. 1978 Full text click here >http://sos.metnews.com/sos.cgi?0624//A168113.

Soltero v. Precise Distribution - filed June 18, 2024, Fourth District, Div. One

Contracts A trial court could not compel a motion for arbitration filed by a party that was not the signatory of the employment agreement containing an arbitration provision between a worker and the temporary staffing agency that had placed the worker with the party as a temporary worker where the worker’s claims do not mention or rely on any provision of her employment agreement. Soltero v. Precise Distribution - filed June 18, 2024, Fourth District, Div. One Cite as 2024 S.O.S. 1940http://sos.metnews.com/sos.cgi?0624//D083308.

Bacon v. Woodward - filed June 18, 2024

Constitutional Law A claim for retrospective and prospective relief from a governor’s order that required state agency employees to be vaccinated against COVID-19 was not rendered moot even though the order was rescinded; strict scrutiny applied to an as-applied free exercise challenge to the order; the order was not narrowly tailored to advance the government’s compelling interest in stemming the spread of COVID-19, and it was fatally underinclusive since it required its own employees to be vaccinated without accommodation while continuing to work with unvaccinated workers from other counties. Bacon v. Woodward - filed June 18, 2024 Cite as 2024 S.O.S. 22-35611 Full text click here >http://sos.metnews.com/sos.cgi?0624//22-35611.

Defries v. Union Pacific Railroad; filed June 14, 2024

Employment Law Where there was ambiguity in whether the definition of a preexisting certified class included individuals with the same disability as plaintiff, this ambiguity should be resolved in favor of allowing plaintiff to rely on the tolling of the statute of limitations for his individual lawsuit pursuant to American Pipe & Construction Co. v. Utah. Defries v. Union Pacific Railroad; filed June 14, 2024 http://sos.metnews.com/sos.cgi?0624//23-35119 Cite as 2024 S.O.S. 23-35119

Daily eBriefs - June 13, 2024

Employment Law When considering the National Labor Relations Board’s request for a preliminary injunction under 29 U.S.C. §10(j), district courts must apply the traditional four factors articulated in Winter v. Natural Resources Defense Council. Starbucks v. McKinney - filed June 13, 2024 Cite as 2024 S.O.S. 23-367 Full text click here >http://sos.metnews.com/sos.cgi?0624//23-367_f3b7.

New York City Office of Administrative Law Judges to Close, Cases Reassigned to Washington, D.C. Office

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. New York City Office of Administrative Law Judges to Close, Cases Reassigned to Washington, D.C. Office 06/13/2024 12:09 PM EDT June 13, 2024 The National Labor Relations Board announces that it will be closing its New York City office of Administrative Law Judges, effective July 15, 2024. The office is being closed in light of the retirement of Associate Chief Judge Kenneth W. Chu, who ably led the office since August 2018, as well as the remaining staff’s significantly decreased need for physical office space. The judges and administrative professional currently assigned to the New York City office will continue to process cases arising out of Regional Offices 2-Manattan, 22-Newark, and 29-Brooklyn, though they will be administratively reassigned to the Washington, D.C. office. Upon the closing of the New York City office, the Washington, D.C. office will assume the function of docketing, assigning, and administratively processing cases from Regions 2, 22, and 29. After July 15, 2024, therefore, all case-related correspondence and filings in those cases should be addressed to Chief Administrative Law Judge Robert A. Giannasi and Deputy Chief Administrative Law Judge Arthur Amchan in the Washington office, until such time as a successor to Judge Chu is named. More information regarding this administrative action can be found in the Federal Register notice published today, and available [here].

Daily eBriefs - June 12, 2024

Contracts An individual is capable of recognizing his or her handwritten signature and if that individual does not deny a handwritten signature is his or her own, that person’s failure to remember signing the document does not create a factual dispute about the signature’s authenticity. Ramirez v. Golden Queen Mining - filed May 15, 2024, publication ordered June 11, 2024, Fifth District Cite as 2024 S.O.S. 1856 Full text click here >http://sos.metnews.com/sos.cgi?0624//F086371.

Olson v. State of California

California's differential treatment of worker misclassification in the transportation and delivery services sector relative to other sectors passed rational basis review. To read more visit https://www.dailyjournal.com/dar/282680-olson-v-state-of-california?utm_source=ActiveCampaign&utm_medium=email&utm_content=Your%20Daily%20Appellate%20Report&utm_campaign=DAR%206%2F10&vgo_ee=Xv%2BXM%2B2gGHmvBt1sKRqVYC7LPhQbecYOg7ri%2By4OJlyLPD3SlbouWlM%3D%3AWWIeIUlsQzGNLjdM16KHhP87Vix2kwBj.

Daily eBriefs - June 5, 2024

Employment A written contract is not required to invoke the Privette doctrine. CBRE v. Superior Court (Johnson) - filed June 4, 2024, Fourth District, Div. One Cite as 2024 S.O.S. 1788 Full text click here >http://sos.metnews.com/sos.cgi?0624//D083130.

Daily eBriefs - May 31, 2024

Employment A drug treatment center’s claims that a health plan administrator’s denial of reimbursements violated state law were preempted by the Employee Retirement Income Security Act because they had both a reference to and an impermissible connection with the ERISA plans that the defendants administered. Bristol SL Holdings v. Cigna Health and Life Insurance - filed May 31, 2024 Cite as 2024 S.O.S. 23-55019 Full text click here >http://sos.metnews.com/sos.cgi?0624//23-55019

Biden administration sues states over immigration laws

The U.S. Department of Justice has sued two more states this month to prevent them from implementing new state laws targeting immigrants. Why it matters: The lawsuits against Iowa and Oklahoma — in addition to one against Texas — signal that the Biden administration is taking an aggressive stance against states taking immigration matters into their own hands. Yet border security and immigration are major vulnerabilities for Biden as polls show they are a rising concern among voters ahead of this year's election. Catch up quick: Iowa and Oklahoma joined Texas in passing new state laws that charge undocumented immigrants with either a criminal misdemeanor or a felony for entering the country without authorization. Oklahoma Gov. Kevin Stitt and Iowa Gov. Kim Reynolds, both Republicans, have said the moves were necessary given a surge of people seeking asylum at the U.S.-Mexico border. The DOJ filed suit against Iowa on May 9 and against Oklahoma on May 21, saying the laws are unconstitutional. The DOJ is also in court against a Texas law passed last year that would allow state authorities to arrest and deport people suspected of entering the country illegally. That law, which critics warn will lead to racial profiling, is on hold pending the outcome of the lawsuit. What they're saying: "Oklahoma cannot disregard the U.S. Constitution and settled Supreme Court precedent," Brian M. Boynton, head of the Justice Department's Civil Division, said in a statement. Boynton said the same thing about Iowa's law. The other side: Stitt says Oklahoma was forced to act since the "Biden administration refuses to do its job to secure our borders." That was echoed in a statement from Iowa Attorney General Brenna Bird: "When Biden fails to do his job and secure our border, states have to take matters into their own hands." Yes, but: Some local law enforcement groups warn that any new state immigration laws would make it harder for police to fight crime. "This law has the potential to destroy the connections and relationships we have built within our local immigrant communities and set us back for many years to come," the Oklahoma Association of Chiefs of Police and the Metro Law Enforcement Agency Leaders said in a joint statement. The intrigue: Republican Georgia Gov. Brian Kemp recently signed a new law that requires law enforcement agencies in Georgia to notify federal authorities when undocumented immigrants are arrested. The law also requires local and state police to identify, arrest and detain people suspected of being undocumented. What we're watching: The Texas case is likely to make it to the Supreme Court. Subscribe to Axios Latino to get vital news about Latinos and Latin America, delivered to your inbox on Tuesdays and Thursdays. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

3 theories for America’s anti-immigrant shift

Six years ago, the Trump administration’s “zero tolerance” policy at the southern border went into effect. Thousands of immigrant families were split up; migrant children were taken and kept separately while their parents awaited prosecution. The images and sounds of caged children stunned the nation, and the outcry was swift: Democrats rallied against then-President Donald Trump, protests swept the country, and public opinion was sharply against Trump’s policy. Immigration soared to become a top concern again, and the share of Americans saying immigration was a good thing for the country jumped. That sentiment continued to grow during the rest of Trump’s presidency. Now, things look much different. Americans once again view immigration as the country’s single most important problem, but public sentiment appears to have taken a turn to the negative. Recent polling seems to suggest that a significant share of American voters — not just Republicans — are warming up to the idea of tough-on-immigration policy proposals and rhetoric. Inside this story Numerous polls suggest the American public is souring on immigration, with even Democratic voters showing more interest in Donald Trump’s policy proposals for mass deportations. It’s a reversal of the public’s several-decades-long trend of increasing sympathy and appreciation for immigrants. This piece lays out three reasons for this surprising trend in public opinion. A recent poll suggested 42 percent of Democrats would support mass deportations of undocumented immigrants. Other polls have also found an anti-immigrant shift in the public’s mood. Gallup’s long-term tracking poll, which has been running since the 1960s, shows a more general decline in the share of Americans who want to increase rates of immigration or keep them the same. Conversely, the portion of Americans who want to decrease immigration has grown: 41 percent of Americans feel this way, up from a low point of 28 percent in 2020. This shift against immigration is happening even as the general American consensus has been moving in favor of immigrants over the last few decades. In 1994, for example, 63 percent of Americans believed that immigrants were a “burden” to the country; only 31 percent said immigrants strengthen the country, according to Pew Research Center data. By 2019, those dynamics had flipped: 62 percent of Americans believed immigrants were an asset to the nation; only 28 percent thought they were a burden. Now, with the public seemingly lurching to the right on immigration, politicians are moving accordingly. There’s been a rightward pivot by Biden and congressional Democrats, and Trump — who built his first campaign on demonizing immigrants (and particularly immigrants of color) — has stepped up his constant attacks on the Biden administration’s immigration policy. So what explains the American public’s souring mood on immigrants and immigration? Though there are no simple answers, pollsters and immigration researchers offer a few explanations that can be roughly sorted into three theories. The first theory centers the role of elected officials — specifically Republicans, and more specifically Trump. As Republicans left power and shifted into opposition mode, they’ve refocused attention on immigration as a threat to American identity. Other experts argue the economy — particularly inflation and the public’s “scarcity mindset” — has made more Americans critical of immigration. When the public feels as though the economy is booming and there's plenty to go around, they feel more open to sharing that wealth. But when people perceive the economy to be tenuous, like after the pandemic when inflation took off, Americans feel more hesitant to share with outsiders. A third group argues that the anti-immigrant turn is being driven by concerns about the rule of law and social disorder. This theory posits that the post-pandemic surge in crime, combined with heightened media coverage of disorder in public, prompted greater concerns from Americans about security and quality of life — concerns that were then also applied to the border and people trying to cross it without documentation. Theory 1: It’s the politicians Trump’s first presidential campaign — starting quite literally with his announcement speech — was built on demonizing immigrants and claiming that open borders were destroying America. But that created a rhetorical tension once he took office, as he had to claim that the problem was rapidly improving thanks to his new anti-immigration measures. Since Joe Biden took office, he has pledged a more open, humanitarian approach to immigration and border politics. He paused construction on a border wall; he issued new protections for DACA recipients, and sent a new immigration bill to Congress. He essentially sought to create the sharpest contrast possible with Donald Trump’s legacy. That shift, however, created the perfect opportunity for Republicans, led by Trump, to once again cast immigration and immigrants as a threat to American identity. The surge in illegal border crossings and legal asylum seekers that followed the pandemic — as well as this liberalizing of migration policy — were fodder for the fear-mongering and exploitation of racial and social fears. And right-wing politicians and commentators have routinely played up this threat, unifying immigrant-skeptical Americans. The lead-up to the 2022 midterms and the 2024 campaign so far provide evidence of this shift. While the 2020 campaign centered on the pandemic and the economy, once Biden took over, Republican candidates across the country shifted into talk about “open borders.” For example, the pro-immigration groups America’s Voice and Immigration Hub in 2021 tracked an increase in mentions of the terms “Biden-Harris border crisis” and “mass amnesty” in paid advertising, as well as increased anti-immigrant discourse online. Once the midterm season picked up, more Republican campaign ads began to mention immigration negatively — about one in five ads in March 2022, for example. And in 2024, Republican candidates (most visibly Donald Trump) have also stepped up talk of immigrant “invasions.” Trump’s more recent framing of illegal immigration as “poisoning the blood of our country” is a key example of this more vitriolic talk of immigrants. And it fits into a longstanding history of American xenophobia; immigration scholars consider this kind of discourse a direct appeal to “in-groups”: existing communities that define themselves against “out-groups” like immigrants, and exploit suspicion and bigotry. Still, this theory can’t fully explain the shift in negative sentiment since the pandemic. Republican politicians (including, famously, Trump) and right-wing media have previously led other cycles of outrage and panic over migration, “caravans,” and the southern border. Immigration was a key campaign point for Republicans during the 2018 midterms, but support for immigration continued to rise. Theory 2: It’s the economy When Americans feel good about their financial security and the health of the national economy, they also feel good about immigrants and immigration. That’s the lesson from the last few decades of Gallup polling, according to Jeff Jones, one of Gallup’s data and public opinion experts. “We saw some declines around the Great Recession — favorable percentages were in the 50s — and then in 2018 and 2019, opinions were quite positive,” Jones told me. In fact, both Republicans and Democrats were more positive about immigration during that time. But after the pandemic and its ensuing inflation and interest rate hikes, economic sentiment took a nosedive, and anti-immigrant sentiment began to pick up as well. These more recent swings also show up in a few of Gallup’s other tracking polls. When asked whether immigrants have a positive or negative effect on job opportunities, taxes, or the economy in general, negative sentiment tended to increase in the lead-up to the Great Recession but recovered after. A similar dynamic emerged before and after the pandemic: 43 percent of respondents said immigrants had a positive effect on the economy, while 31 percent said it had a negative effect. By 2023, respondents were nearly evenly divided: 39 percent to 38 percent. But economics alone don’t explain recent twists. Both economic conditions and sentiment about the economy have been improving more markedly over the last year, but the public’s anti-immigrant shift has been accelerating. Clearly, something else is happening here. Theory 3: It’s the “law-and-order” mindset Matthew Wright, a University of British Columbia political scientist who studies immigration, suggests a third complementary explanation: a renewed public desire for “law-and-order” policies prompted by the pandemic-era rise in crime and the Biden-era increase in border-crossing attempts. Compared to the lull in rates of immigration during the pandemic, the surge in border crossings in the last three years was unprecedented, overwhelming what federal and local officials have been able to manage. That volume has resulted in dramatic scenes at the border, in border communities, and in big cities, where many asylum seekers have been moved. Wright suggests that a good chunk of Americans feel conflicting emotions that conflate illegal immigration, asylum seekers, and immigration in general with a sense of public disorder. They are torn between having sympathy for immigrants in general and feeling worried about public safety, order, and the rule of law. And they combine their feelings about the border with their attitudes about crime and governance. “In terms of what people are concerned about, the way I read these figures and these trends is that they're mainly concerned about illegal immigration, and they're mainly concerned about the border,” Wright said. “There's something to be said for people being seriously uncomfortable with the idea that their country doesn't have a border, that the border is not something we can enforce.” Gallup polling also provides some clues of shifting sentiment here: In 2023, 47 percent of Americans said they believed immigrants had a worsening effect on crime in the US, up from 42 percent in 2019. And the share of Americans who say they personally worry a “great deal” specifically about illegal immigration has steadily increased since 2020 — from 32 percent in March 2020 to 48 percent in March of this year. To Wright, these findings complement other polling that shows a confounding mix of opinions on immigration. A not insignificant number of voters hold both these more critical views of immigration as well as generally open views: positive toward refugees, favoring reform of legal migration, and supporting pathways to citizenship for those already here. This law-and-order theory suggests that these voters can hold competing ideas in their minds: not opposing migration, but wanting it done in an orderly manner. This theory also explains why Trump and Republicans may have a unique opening this year — to activate both nativist and bigoted attitudes in some voters, as well as to exploit fear of “chaos” and bad management. “They can use a very simple message to capture different kinds of people: They can capture both the prejudicially motivated person and the pure law-and-order guy — that person is not expressly racist, necessarily, but values order in society,” Wright said. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

Democrats grapple with the right way to talk about Biden’s immigration policies

Phoenix CNN — Laura Grant has been keeping tabs on what Congress has done – or not done – to overhaul US immigration and border policy. The 47-year-old insurance agent said she’s concerned about the deteriorating situation at the border. The Phoenix resident wants a more streamlined process for migrants but said she doesn’t trust either party to solve the issue. Democrats didn’t seem to grasp the severity of the situation, she said. And Republicans rejected a bipartisan border security bill she supported. “I just don’t know what their agenda is anymore,” Grant told CNN during a recent interview at her home here. “They’re for it. They’re not for it. So we’re just kind of in the middle now.” ADVERTISING Ahead of the November election, President Joe Biden and many Democratic campaigns are hoping to chip away at what polls have shown is a Republican advantage on immigration, particularly in battleground states such as Arizona. The centerpiece of Democrats’ approach has been the bipartisan border bill. In February, Republicans blocked a border deal and foreign aid package despite demanding last year that Democrats pair border security with Ukraine aid. The border security legislation, which failed for a second time in the Senate last week in a vote GOP senators called a political stunt, has given Democrats a concrete example to point to as they seek to portray Republicans as unwilling to address the issue. But the strategy, an effort to triangulate between liberal and conservative policies to appeal directly to results-driven voters, has also reignited an ongoing debate within the Democratic coalition over how to address migration and the border. In this image from February 29, President Joe Biden receives a briefing at the US-Mexico border in Brownsville, Texas. RELATED ARTICLE White House and Democratic lawmakers plot ways to strengthen their hand on border security Democratic campaigns, which have mostly been on defense on immigration policy since Donald Trump entered the political scene, have pointed to New York Rep. Tom Suozzi’s February special election win as a sign that campaigning on border security as well as legal pathways for migration is a winning approach for the party. Polling has also shown voters want Congress to pass the bipartisan border deal. But some members of the Democratic coalition – including progressives, members of the Congressional Hispanic Caucus who were excluded from negotiations over the border bill and migrant advocacy groups in swing states – have warned that Democrats need to emphasize pro-immigrant policies to draw a clear contrast with Republicans. They have argued for a course correction from the party and a bigger push toward work permits for long-term residents. Both sides of the debate argue their approach is key to helping Biden win, particularly in swing states like Arizona, where immigration is top of mind for voters and polling has shown Biden trailing Trump. Alejandra Gomez, the executive director of Living United for Change in AZ, or LUCHA, said it would be difficult for her organization’s canvassers to talk to voters about Biden’s immigration policies. For now, the organization is focusing on down ballot races and local issues. But Gomez also framed the 2024 election as a binary choice. “There is accountability that has to happen, but that accountability won’t exist under a Trump administration,” she said. Grant, who was visited by a LUCHA canvasser knocking on doors for US House candidate Raquel Terán on a recent Friday, said she would ultimately vote for Biden because of his stance on abortion rights. Arizona lawmakers recently repealed a near-total abortion ban and advocates are gathering signatures for a ballot initiative that would enshrine abortion rights in the state Constitution. Damon, a 57-year-old Phoenix resident and Department of Veterans Affairs employee who declined to give his last name, also cited abortion as a reason he plans to vote for Biden in an interview after a visit from a LUCHA canvasser. But he said he felt Biden had waited too long into his presidency to take action on the border. “If we’re going to cut right to the chase here, I think he lost the election for us already,” he said. A binary choice Ahead of next month’s first presidential debate, mainstream Democrats are doubling down on a border security-focused strategy and the effort to shift blame to Republicans. “Trump killed it – not once, but twice,” Biden campaign spokeswoman Fabiola Rodriguez said in a statement to CNN after Thursday’s vote. A recent memo from House Democrats’ campaign arm said candidates would go “on the offensive against disingenuous far-right political attacks from Republicans” on border policy. House Republicans have said the bipartisan border proposal doesn’t go far enough but have also signaled a reluctance to grant Biden an election year victory. Trump said earlier this year that a border deal now would be a political “gift” for Democrats. The White House is considering other options to display a tougher stance on migration, including sending Biden to visit the border and issuing a new executive order limiting asylum claims, CNN reported earlier this month. “What the average American wants, including the average Latino, is a well secured and well managed border,” said Matt Barreto, a pollster who focuses on Latino voters and who worked with Biden’s 2020 campaign. In this 2017 photo, President Donald Trump walks to the Oval Office after arriving back at the White House. RELATED ARTICLE How Trump’s first term may have laid the groundwork to make his radical immigration agenda a reality Those same voters also support Democratic immigration priorities such as permanent legal status for Dreamers, who were brought to the country illegally as children, Barreto said, adding that he expects the president’s campaign to focus on those policies ahead of the election. For now, calling Republicans on their bluff is also a winning issue, Barreto said. “I think part of the political strategy is, you’ve got the Republicans cornered on the border,” he said. “So why not keep talking about it?” California Rep. Robert Garcia, a national advisory board member for Biden’s campaign, acknowledged the frustration of immigration advocates but argued that Trump presents the “worst possible choice.” Trump has proposed swift and severe changes to the immigration system, including increasing the number of ideological screenings, expanding the ban to travel from predominantly Muslim countries and ending birthright citizenship for the children of undocumented migrants (which many legal observers believe is unconstitutional and likely implausible). He has also promised to launch the “largest domestic deportation operation in American history.” Trump has coined the term “Biden Migrant Crime” as he and other Republicans highlight crimes committed by migrants to falsely argue that migrants have fueled a crime wave. The bipartisan border bill, introduced in February, was designed to appease Republicans who said they wouldn’t approve foreign aid to Ukraine and Israel without a border security component. The legislation would have sped up the asylum process and expanded the president’s ability to limit migrant crossings at the US-Mexico border. Trump came out against the deal before it was introduced, dooming the initial vote. On Thursday, Senate Democrats’ second attempt to pass the bill failed by an even larger margin – 43-50 – and lost the backing of two of the key negotiators, independent Sen. Kyrsten Sinema of Arizona and Republican Sen. James Lankford of Oklahoma. “Today is not a bill. Today is a prop,” Lankford said ahead of the vote. Finding middle ground For months, polls have shown immigration and the border as a top issue for voters, behind the economy and inflation. A CBS News/YouGov poll released this month found that 61% of likely Arizona voters said the US-Mexico border was a major factor in how they would vote, compared with 82% who pointed to the economy and 78% who named inflation. Trump led Biden in the poll by 5 points. Among registered voters, 68% said they did not think the Biden administration was taking steps to reduce the number of migrants crossing into the US. Asked how recent immigrants from Mexico and Latin America had shaped life in Arizona, 52% said they’d made life worse, 13% said they’d made life better and 35% said they saw no impact. Asylum seekers walk for their asylum interview appointment with US authorities at the El Chaparral crossing port in Tijuana, Baja California State, Mexico on May 18, 2024. Behind the political and economic stability that the outgoing president Andrés Manuel López Obrador boasts, hides the reality of thousands of people cornered by violence who become internally displaced people and, with luck, asylum seekers. One third of illegal migrant interceptions on the US side of the border in 2023 were Mexicans according to the UN International Organization for Migration. (Photo by Guillermo Arias / AFP) (Photo by GUILLERMO ARIAS/AFP via Getty Images) RELATED ARTICLE Democrats in tight races support border bill despite past opposition to stricter asylum rules and border wall money To address those divides, Democrats – from the Biden campaign down to Senate and House Democrats’ campaign arms – have tried to find a middle ground. Biden has frequently referred to the bipartisan border bill as the “toughest” set of reforms in decades. But he has highlighted his efforts to push comprehensive immigration reform in the first days of his presidency at Democratic campaign events. Allies also note that even the border security bill contains pro-immigrant policies, including a pathway to citizenship for Afghans; 250,000 new green cards, raising the cap for the first time in more than 30 years; relief for children who came to the US on a parent’s work visa; and funding for immigration lawyers for children. Supporters have also pointed to the administration’s efforts to expand protections to migrants through regulations and executive actions, including Biden’s broad use of humanitarian parole authority to allow various groups to stay in the country. “The theory I think that this administration is really operating under is creating lawful pathways so that we have people coming with a visa and not with a smuggler, and that they’re coming for a purpose,” said Angela Kelley, a former volunteer with the Biden-Harris transition team and chief adviser at the American Immigration Lawyers Association. “They’re coming to work, they’re coming to reunite with a family member, they are coming because they’re seeking protection.” Broken promises Immigrant rights advocates – and Democratic lawmakers critical of their party’s border-first strategy – say the risk heading into the fall is that organizers will feel deflated, and some voters will ultimately choose to stay home if Democrats don’t develop a more distinctive message that celebrates the contributions of immigrants and focuses on their positive impact on the economy. They cite a recent projection by the nonpartisan Congressional Budget Office that GDP will increase by about $7 trillion from 2023 to 2034 and revenues will be greater by about $1 trillion due largely to immigration. Donald Trump and Joe Biden. RELATED ARTICLE This Memorial Day weekend heralds a bitter campaign season ahead “The Democratic Party is making it really hard for us to do our job,” Luis Zaldivar, the Georgia state director for CASA in Action, a progressive group that mobilizes voters around immigrant rights issues, told CNN. “The immigrant voice has not been heard through the process.” Illinois Rep. Delia Ramirez, a progressive who has continued to oppose the border bill, says it’s not enough to say the former president’s policies would be worse. “I think we have this assumption: Let’s just move to the center and sound more Republican. We’ll get people to vote for us,” Ramirez said. “It’s not working. We’re sounding just like the other guy, so what ends up winning is apathy.” The risk is losing voters like Abigail Gutierrez, a 22-year-old EMT from Phoenix who voted for Biden in 2020. Gutierrez told CNN that immigration is her top issue because she’d seen how much federal policies have affected her community. She hoped to see something done to help migrants who are already in the country “so people aren’t scared to be here.” Asked about Biden, Gutierrez said she’s not sure if she will back him again this November. “I just think there were a lot of promises that were made that weren’t kept,” she said. For more information, visit us at https://www.beverlyhillsimmigrationlaw.com/.

Cook v. University of Southern California

Contracts An arbitration agreement of infinite duration that requires an employee to arbitrate all claims against the employer, its agents, affiliates, and employees irrespective of whether they arise from the employment relationship, is unconscionable. Cook v. University of Southern California - filed May 24, 2024, Second District, Div. Four Cite as 2024 S.O.S. 1740 Full text click here >http://sos.metnews.com/sos.cgi?0524//B330640.

Daily eBriefs - May 23, 2024

Contracts Where parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court must decide which contract governs. Coinbase v. Suski - filed May 23, 2024 Cite as 2024 S.O.S. 23-3 Full text click here >http://sos.metnews.com/sos.cgi?0524//23-3_879d, Contracts When an employer modifies its employment policy to require employees to arbitrate their disputes and clearly communicates to employees that continued employment will constitute assent to an arbitration agreement, the employees will generally be bound by the agreement if they continue to work for the company, however, if the employee promptly rejects the arbitration agreement and makes clear he refuses to be bound by the agreement, there is no mutual assent to arbitrate. Mar v. Perkins - filed May 22, 2024, Second District, Div. Seven Cite as 2024 S.O.S. 1721 Full text click here >http://sos.metnews.com/sos.cgi?0524//B327665. Contracts An order granting a motion under Code of Civil Procedure § 1281.97 to withdraw from arbitration and proceed in court is appealable. When an agreement falls within the scope of the Federal Arbitration Act and does not expressly adopt California arbitration laws, the FAA preempts the provisions of §1281.97 that mandate findings of breach and waiver. Hernandez v. Sohnen - filed May 22, 2024, Second District, Div. Five Cite as 2024 S.O.S. 1727 Full text click here >http://sos.metnews.com/sos.cgi?0524//B323303. Employment Law Labor Code §1102.6 sets for the exact standards to be used for evaluating whistleblower retaliation claims brought pursuant to §1102.5; pursuant to §1102.6, once an employee has shown a protected disclosure was a contributing factor in an adverse employment action, the statute shifts the burden to the employer and if the jury finds the employer satisfies its second-step burden in a civil case, the employee is barred from all relief. The Legislature did not intend for a contributing factor alone to prove a violation of §1102.5. Ververka v. Department of Veterans Affairs - filed May 6, 2024, publication ordered May 22, 2024, First District, Div. One Cite as 2024 S.O.S. 1736 Full text click here >http://sos.metnews.com/sos.cgi?0524//A163571.

Daily eBriefs - May 21, 2024

Employment Law Assuming substantial compliance were enough, a public employee did not substantially comply with the Government Code’s claim presentation requirement by simply noting she previously submitted various racial discrimination and whistleblower complaints. Campbell v. Los Angeles Unified School District - filed May 1, 2024, publication ordered May 21, 2024, Second District, Div. Eight Cite as 2024 S.O.S. 1674 Full text click here >http://sos.metnews.com/sos.cgi?0524//B320442.

Daily eBriefs - May 17, 2024

Employment Employment discrimination claims under Title VII and the California Fair Employment and Housing Act are analyzed under the McDonnell Douglas burden-shifting framework, under which the plaintiff must establish a prima facie case of discrimination, or alternatively, the plaintiff may prevail on summary judgment by showing direct or circumstantial evidence of discrimination. Hittle v. City of Stockton; amended May 17, 2024 Cite as 2024 S.O.S. 22-15485http://sos.metnews.com/sos.cgi?0524//22-15485

Daily eBriefs - May 16, 2024

Contracts When a district court finds that a lawsuit involves an arbitrable dispute and a party has requested a stay of the court proceeding pending arbitration, 9 U.S.C. §3 compels the court to issue a stay, and the court lacks discretion to dismiss the suit. Smith v. Spizzirri - filed May 16, 2024 Cite as 2024 S.O.S. 22-1218 Full text click here > http://sos.metnews.com/sos.cgi?0524//22-1218_5357

Daily eBriefs - May 9, 2024

Employment Law Absent a mandate which explicitly directs to the contrary, a district court upon remand can permit the plaintiff to file additional pleadings; plaintiffs adequately alleged facts that, if proved, triggered an ERISA plan administrator’s duty to provide pension benefit statements and they stated a viable ERISA claim by alleging that the plan administrator provided substantially inaccurate pension benefit statements Bafford v. Administrative Committee of the Northrop Grumman Pension Plan - filed May 9, 2024 Cite as 2024 S.O.S. 22-55634 Full text click here >http://sos.metnews.com/sos.cgi?0524//22-55634.

Daily eBriefs - May 6, 2024

Administrative Where a case was remanded to the National Labor Relations Board to explain better its decision that an employer may unilaterally cease union dues checkoff after the expiration of a collective bargaining agreement and the board rendered a new decision readopting its prior rule prohibiting employers from unilaterally ceasing dues checkoff after expiration of a collective bargaining agreement, the board did not exceed the scope of the mandate since the mandate did not clearly foreclose reconsideration of the board’s underlying rule regarding dues checkoff after expiration of the applicable collective bargaining agreement. Valley Hospital Medical Center v. National Labor Relations Board - amended May 6, 2024 Cite as 2024 S.O.S. 22-1978 Full text click here >http://sos.metnews.com/sos.cgi?0524//22-1978. Employment Law If an employer reasonably and in good faith believed it was providing a complete and accurate wage statement in compliance with the requirements of Labor Code §226, then it has not knowingly and intentionally failed to comply with the wage statement law. Naranjo v. Spectrum Security Services - filed May 6, 2024 Cite as 2024 S.O.S. 1524 Full text click here >http://sos.metnews.com/sos.cgi?0524//S279397.

Daily eBriefs - April 24, 2024

Civil Procedure Where the appellate court’s instructions on remand required the trial court to do more than perform a pure mathematical computation of fees, or add or delete a category of fees, and the trial court had to exercise its discretion to determine an appropriate award of attorney fees, the prior opinion was a reversal, not a modification, and interest on the award runs from the post-remand fee order. Vines v. O’Reilly Auto Enterprises - filed April 24, 2024, Second District, Div. Seven Cite as 2024 S.O.S. 1421 Full text click here >http://sos.metnews.com/sos.cgi?0424//B327821

Daily eBriefs - April 24, 2024

Employment Law The National Labor Relations Board’s cease-and-desist order was final and reviewable even though the board had severed the question of whether to adopt a compensatory remedy for the employer’s conduct where nothing in the order suggested that the severed issue would have any effect on the board’s conclusion regarding the underlying charge. National Labor Relations Board v. Siren Retail (Workers United) - filed April 24, 2024 Cite as 2024 S.O.S. 22-1969 Full text click here >http://sos.metnews.com/sos.cgi?0424//22-1969. Employment A public university did not violate an employee’s due process rights by denying her a Skelly proceeding before she was demoted since the demotion was the result of her voluntary decision to transfer to a lower paying position. LaMarr v. Regents of the University of California - filed April 5, 2024, publication ordered April 23, 2024, Third District Cite as 2024 S.O.S. 1431 Full text click here >http://sos.metnews.com/sos.cgi?0424//C097235.

Daily eBriefs - April 22, 2024

Employment Law A disability-based harassment claim is available under the Americans with Disabilities Act and the Rehabilitation Act. Mattioda v. Nelson - filed April 22, 2024 Cite as 2024 S.O.S. 22-15889 Full text click here >http://sos.metnews.com/sos.cgi?0424//22-15889 Employment Law Nonconvicted incarcerated individuals working in a county jail for a private company do not have a claim for minimum wage and overtime under California law. Ruelas v. County of Alameda - filed April 22, 2024 Cite as 2024 S.O.S. 1377 Full text click here >http://sos.metnews.com/sos.cgi?0424//S277120A

Daily eBriefs - April 19, 2024

Contracts An employer waived its right to compel arbitration in a certified wage and hour class action by unreasonably delaying its motion to compel where the employer did not attempt to enforce its alleged arbitration rights until nine months after Viking River Cruises v. Moriana was decided, and five to six months after the class members signed new arbitration agreements. Semprini v. Wedbush Securities - filed April 18, 2024, Fourth District, Div. Three Cite as 2024 S.O.S. 1353 Full text click here >http://sos.metnews.com/sos.cgi?0424//G062622. Employment Law An employee subject to alleged Labor Code violations by her employer may bring a non-individual or representative PAGA action on behalf of herself and other employees even if she did not file an individual cause of action seeking individual relief for herself. Balderas v. Fresh Start Harvesting - filed March 3, 2024, publication ordered April 18, 2024, Second District, Div. Six Cite as 2024 S.O.S. 1358 Full text click here >http://sos.metnews.com/sos.cgi?0424//B326759.

Employment Law An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant. Muldrow v. City of St. Louis, Missouri - filed April 17, 2024 Cite as 2024 S.O.S. 22-193 Full text click here >http://sos.metnews.com/sos.cgi?0424//22-193_q86b.

Daily eBriefs - April 12, 2024

Contracts A transportation worker need not work in the transportation industry to be exempt from coverage under Section 1 of the Federal Arbitration Act. Bissonnette v. LePage Bakeries - filed April 12, 2024 Cite as 2024 S.O.S. 23-51 Full text click here >http://sos.metnews.com/sos.cgi?0424//23-51_6647

Daily eBriefs - April 10, 2024

Contracts Federal Arbitration Act §1’s transportation worker exemption does not extend to business entities or to commercial contracts with delivery service partners. Fli-Lo-Falcon v. Amazon.com - filed April 10, 2024 Cite as 2024 S.O.S. 22-35818 Full text click here >http://sos.metnews.com/sos.cgi?0424//22-35818.

NLRB Division of Judges Releases 2024 Bench Book

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. NLRB Division of Judges Releases 2024 Bench Book 04/03/2024 09:21 AM EDT April 03, 2024 Washington, D.C - The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces the last update issued in April 2023. The Bench Book serves as an NLRB trial manual and is designed to provide NLRB Administrative Law Judges (ALJs) with a reference guide during hearings. It is also a useful tool for practitioners before the Board because it sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during hearings. This year’s edition includes citations to numerous additional Board and court decisions. It also includes the most recent amendments to the Federal Rules of Evidence. The 2024 edition was edited by ALJ Jeffrey Wedekind, who has served as editor since 2010, and ALJs Mara-Louise Anzalone, Paul Bogas, Lauren Esposito, and Sharon Steckler as associate editors. It also includes a foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.

Union Petitions Up 35%, Unfair Labor Practices Charge Filings Up 7% in the First Half of Fiscal Year 2024

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. Union Petitions Up 35%, Unfair Labor Practices Charge Filings Up 7% in the First Half of Fiscal Year 2024 04/09/2024 09:29 AM EDT April 09, 2024 During the first six months of Fiscal Year 2024 (October 1–March 31), union election petitions filed at NLRB field offices rose 35% over the same period in Fiscal Year 2023. Notably, this is driven by a spike in employer-filed RM-petitions, after the Board’s Cemex decision, accompanied by an uptick in employee-filed RC-petitions. In total, 1,618 petitions were filed during this time, compared with 1,199 in the first half of Fiscal Year 2023. Of the recent petitions, 1,137 were RC-petitions and 281 were RM-petitions. At the same time, unfair labor practice (ULP) charges filed across the NLRB’s field offices have increased 7%—from 9,612 to 10,278. Accounting for union petitions and unfair labor practice charges, the NLRB received 11,896 cases in the first half of Fiscal Year 2024, up 10% over the first half of Fiscal Year 2023 when the field offices received 10,811 cases. This increase in filings continues the surge in NLRB caseload in recent years. In Fiscal Year 2023, ULP charges were up 10% and election petitions were up 3% over the previous year. In Fiscal Year 2022, union petitions were up 53% and ULP charges filed increased 19% over Fiscal Year 2021. The surge in caseload occurs as the Agency struggles with funding and staffing shortages. Last month, Congress flat-funded the NLRB at $299.2 million at a time when more resources are desperately needed. Last year, Congress gave the NLRB a $25 million increase, which ended a hiring freeze, prevented furloughs, and allowed the NLRB to backfill some critical staff vacancies. However, the Agency remains understaffed after flat funding in nine of the past 10 years. In the past two decades, staffing in field offices has shrunk by 50%. “As the NLRB’s case intake reflects a critical moment in our nation’s history, I’m proud of NLRB Field and Headquarters staff for processing cases with professionalism and care,” said NLRB General Counsel Jennifer Abruzzo. “However, Congress needs to fully fund the NLRB to effectively and efficiently comply with our Congressional mandate when providing quality service to the public in conducting hearings and elections, investigating charges, settling and litigating meritorious cases, and obtaining full and prompt remedies for workers whose rights are violated.”

Daily eBriefs - April 5, 2024

Employment The Emergency Ambulance Employee Safety and Preparedness Act clarified existing law, but even if it changed existing law, retroactive application of the act satisfies constitutional requirements. Silva v. Medic Ambulance Service - filed April 4, 2024, First District, Div. One Cite as 2024 S.O.S. 1264 Full text click here >http://sos.metnews.com/sos.cgi?0324//A167098.

NLRB Division of Judges Releases 2024 Bench Book

You are subscribed to Press Releases for National Labor Relations Board. This information has recently been updated, and is now available. NLRB Division of Judges Releases 2024 Bench Book 04/03/2024 09:21 AM EDT April 03, 2024 Washington, D.C - The Judges Division of the National Labor Relations Board (NLRB) has issued an updated Bench Book, which replaces the last update issued in April 2023. The Bench Book serves as an NLRB trial manual and is designed to provide NLRB Administrative Law Judges (ALJs) with a reference guide during hearings. It is also a useful tool for practitioners before the Board because it sets forth Board precedent and other rulings and authorities on certain recurring procedural and evidentiary issues that may arise during hearings. This year’s edition includes citations to numerous additional Board and court decisions. It also includes the most recent amendments to the Federal Rules of Evidence. The 2024 edition was edited by ALJ Jeffrey Wedekind, who has served as editor since 2010, and ALJs Mara-Louise Anzalone, Paul Bogas, Lauren Esposito, and Sharon Steckler as associate editors. It also includes a foreword by Chief ALJ Robert Giannasi describing the Bench Book’s history and purpose.

Daily eBriefs - March 26, 2024

Employment Law Employees who prevail in actions to recover unpaid minimum and overtime wages are entitled to their reasonable litigation costs under Labor Code §1194(a), irrespective of the amount recovered. Gramajo v. Joe's Pizza on Sunset - filed March 25, 2024, Second District, Div. Eight Cite as 2024 S.O.S. 1110 Full text click here http://sos.metnews.com/sos.cgi?0324//B322697

Daily eBriefs - March 12, 2024

Contracts A plaintiff who worked at a California warehouse facility which received merchandise from mostly international locations belonged to a class of workers engaged in foreign or interstate commerce and was therefore exempted from the Federal Arbitration Act; an employee is not categorically excluded from the transportation worker exemption simply because he performs duties on a purely local basis. Ortiz v. Randstad Inhouse Services - filed March 12, 2024 Cite as 2024 S.O.S. 23-55147 Full text click here >http://sos.metnews.com/sos.cgi?0324//23-55147.

Daily eBriefs - March 11, 2024

Intellectual Property An employer was the prevailing party on its trade secret misappropriation claim where a jury found the defendant misappropriated its trade secrets, even though the jury also found that the misappropriation did not cause the employer to suffer damages or the employee to be unjustly enriched. Applied Medical Distribution v. Jarrells - filed March 8, 2024, Third District, Div. Eight Cite as 2024 S.O.S. 958 Full text click here >

NLRB’s Joint-Employer Rule Vacated by U.S. District Judge

NLRB’s Joint-Employer Rule Vacated by U.S. District Judge 03/09/2024 06:12 PM EST March 09, 2024 On Friday evening, U.S. District Judge J. Campbell Barker of the Eastern District of Texas vacated the National Labor Relations Board’s recent rule on determining the standard for joint-employer status and the Board’s rescission of the 2020 joint-employer rule. Judge Barker had previously stayed the joint-employer rule until March 11, 2024. “The District Court’s decision to vacate the Board’s rule is a disappointing setback, but is not the last word on our efforts to return our joint-employer standard to the common law principles that have been endorsed by other courts," said Chairman Lauren McFerran. "The Agency is reviewing the decision and actively considering next steps in this case.”

Daily eBriefs - March 5, 2024

Evidence A district court did not abuse its discretion in granting dismissal under Federal Rule of Civil Procedure 37(e)(2) of an employment discrimination action because of intentional spoliation of electronically stored information by the plaintiff where ample circumstantial evidence showed that the plaintiff acted willfully, and the district court properly relied on an inference that her deletion of text messages with co-workers and her coordination with witnesses to delete messages was prejudicial to the defendant. Jones v. Nathanson - filed March 6, 2024 Cite as 2024 S.O.S. 22-16465 Full text click here >http://sos.metnews.com/sos.cgi?0324//22-16465

Daily eBriefs - February 28, 2024

Contracts Code of Civil Procedure §1281.98 entitled an employee to withdraw from the arbitration of his claims against his employer due to his employer’s failure to pay the arbitrator’s invoices; §1281.98 does not allow for any extension of time for the due date absent an agreement by all parties; §1281.98 is not preempted by the Federal Arbitration Act. Hohenshelt v. Superior Court (Golden State Foods) - filed Feb. 27, 2024, Second District, Div. Eight Cite as 2024 S.O.S. 753 Full text click here >http://sos.metnews.com/sos.cgi?0224//B327524.

Daily eBriefs - February 20, 2024

Employment Law The National Labor Relations Act prohibits employers from unilaterally ceasing dues checkoff after the expiration of a collective bargaining Agreement; the Taft-Hartley Act does not require specific language in the employees’ written assignments concerning revocability upon expiration of the collective bargaining agreements. National Labor Relations Board v. Valley Health System - filed Feb. 20, 2024 Cite as 2024 S.O.S. 23-137 Full text click here >http://sos.metnews.com/sos.cgi?0224//23-137.

Daily eBriefs - February 20, 2024

Administrative Where a case was remanded to the National Labor Relations Board to explain better its decision that an employer may unilaterally cease union dues checkoff after the expiration of a collective bargaining agreement and the board rendered a new decision readopting its prior rule prohibiting employers from unilaterally ceasing dues checkoff after expiration of a collective bargaining agreement, the board did not exceed the scope of the mandate since the mandate did not clearly foreclose reconsideration of the board’s underlying rule regarding dues checkoff after expiration of the applicable collective bargaining agreement. Valley Hospital Medical Center v. National Labor Relations Board - filed Feb. 20, 2024 Cite as 2024 S.O.S. 22-1804 Full text click here >about:blank

Daily eBriefs - February 8, 2024

Employment A whistleblower who invokes 18 U.S.C. §1514A must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with retaliatory intent. Murray v. UBS Securities - filed Feb. 8, 2024 Cite as 2024 S.O.S. 22-660 Full text click here >http://sos.metnews.com/sos.cgi?0224//22-660_7648

Daily eBriefs - February 6, 2024

Employment The whistleblower anti-retaliation provisions in the Sarbanes-Oxley and Dodd-Frank Acts do not apply outside the United States. Daramola v. Oracle America - filed Feb. 6, 2024 Cite as 2024 S.O.S. 22-15959 Full text click here >

Daily eBriefs - January 30, 2024

Contracts An arbitration provision in a subscriber agreement that required the parties to arbitrate all disputes and permitted the arbitrator to grant only individual relief served to waive a consumer’s right to seek public injunctive relief in any forum; an injunction that seeks to prohibit a business from engaging in unfair or deceptive practices and marketing, requires it to provide enhanced pricing transparency, and requires it to comply with our consumer protection laws, has the primary purpose and effect of protecting the public. Ramsey v. Comcast Cable Communications - filed Dec. 29, 2023, publication ordered Jan. 29, 2024, Sixth District Cite as 2024 S.O.S. 426 Full text click here >http://sos.metnews.com/sos.cgi?0124//H049949

Daily eBriefs - January 24, 2024

Contracts If an employer successfully moved to stay a court action and proceed to arbitration, then waited more than 30 days to pay its share of the arbitrator’s initial filing fee, the employer waives its right to arbitration pursuant to Code of Civil Procedure §1281.97 et seq. Suarez v. Superior Court (Rudolph & Sletten) - filed Jan. 24, 2024, Fourth District, Div. One Cite as 2024 S.O.S. 326 Full text click here >http://sos.metnews.com/sos.cgi?0124//D082429.

Daily eBriefs - January 19, 2024

Employment A public retirement system’s resolution properly excluded compensation for accrued, but unused, hours of annual leave exceeding employees’ calendar year allowance for purposes of calculating their retirement benefits. Ventura County Employees’ Retirement Association v. Criminal Justice Attorneys Association of Ventura County - filed Jan. 4, 2024, publication ordered Jan. 18, 2024, Second District, Div. Six Cite as 2024 S.O.S. 261 Full text click here >http://sos.metnews.com/sos.cgi?0124//B325277.

Daily eBriefs - January 10, 2024

Employment A healthcare provider, who was neither an ERISA plan participant nor beneficiary, has derivative authority to enforce ERISA’s protections if it has received a valid assignment of rights. South Coast Specialty Surgery Center v. Blue Cross of California - filed Jan. 10, 2024 Cite as 2024 S.O.S. 22-55717 Full text click here >http://sos.metnews.com/sos.cgi?0124//22-55717

Daily eBriefs - January 9, 2024

Employment An arbitration provision which reflects the parties’ agreement to waive their rights to bring any claims against one other in any purported class or representative proceeding, and which provides no right or authority for any dispute to be brought, heard, or arbitrated on a class, collective, or representative basis is unenforceable because it requires plaintiffs to waive their right to bring any representative Private Attorneys General Act claim. DeMarinis v. Heritage Bank of Commerce - filed Dec. 11, 2023, publication ordered Jan. 8, 2024, First District, Div. Three Cite as 2024 S.O.S. 144 Full text click here >http://sos.metnews.com/sos.cgi?0124//A167091

Daily eBriefs - January 8, 2024

Employment A trial court erred in denying certification of a class of employees challenging an employer’s rest break policy where the court incorrectly found the employer applied its rest break policy inconsistently during the proposed class period; certification was properly denied over the employer’s policy of checking employees’ bags were there was evidence the policy was only sporadically enforced. Miles v. Kirkland Stores - filed January 8, 2024 Cite as 2024 S.O.S. 22-55522 Full text click here >http://sos.metnews.com/sos.cgi?0124//22-55522