The Code of Civil Procedure and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration (Ethics Standards) require arbitrators in contractual arbitrations to make various disclosures about themselves, their experience, and their activity as private judges or, as they are sometimes called, “dispute resolution neutrals.” Failure to make required disclosures may be a ground for disqualifying the arbitrator and, if the arbitrator was actually aware of the ground for disqualification, for vacating an award.
In this case, the arbitrator did not comply with several applicable disclosure requirements, which gave rise to multiple grounds for disqualification. Because the arbitrator was actually aware of at least one of the grounds for disqualification, the resulting arbitration award was subject to vacatur. Therefore, we reverse the trial court’s order denying the petition to vacate the award and granting the petition to confirm it.
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Friday, August 3, 2018
Boling v. Public Employment Relations Board
This case arises from unfair practice claims filed by unions after San Diego’s mayor sponsored a citizens’ initiative to eliminate pensions for new municipal employees and rebuffed union demands to meet and confer over the measure. The Court of Appeal annulled a finding by respondent, the Public Employment Relations Board (PERB), that the failure to meet and confer constituted an unfair labor practice. We granted review to settle two questions: (1) When a final decision by PERB under the Meyers-Milias-Brown Act (the MMBA; Gov. Code, § 3500 et seq.) is appealed, what standards of review apply to PERB’s legal interpretations and findings of fact?; (2) When a public agency itself does not propose a policy change affecting the terms and conditions of employment, but its designated bargaining agent lends official support to a citizens’ initiative to create such a change, is the agency obligated to meet and confer with employee representatives?
These questions are resolved by settled law and the relevant statutory language. First, we have long held that PERB’s legal findings are entitled to deferential review. They will not be set aside unless clearly erroneous, though the courts as always retain ultimate authority over questions of statutory interpretation. The MMBA specifies that PERB’s factual findings are “conclusive” “if supported by substantial evidence.” (§ 3509.5, subd. (b).) Second, the duty to meet and confer is a central feature of the MMBA. Governing bodies “or other representatives as may be properly designated” are required to engage with unions on matters within the scope of representation “prior to arriving at a determination of policy or course of action.” (§ 3505.) This broad formulation encompasses more than formal actions taken by the governing body itself. Under the circumstances here, the MMBA applies to the mayor’s official pursuit of pension reform as a matter of policy. The Court of Appeal erred, first by reviewing PERB’s interpretation of the governing statutes de novo, and second by taking an unduly constricted view of the duty to meet and confer.
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These questions are resolved by settled law and the relevant statutory language. First, we have long held that PERB’s legal findings are entitled to deferential review. They will not be set aside unless clearly erroneous, though the courts as always retain ultimate authority over questions of statutory interpretation. The MMBA specifies that PERB’s factual findings are “conclusive” “if supported by substantial evidence.” (§ 3509.5, subd. (b).) Second, the duty to meet and confer is a central feature of the MMBA. Governing bodies “or other representatives as may be properly designated” are required to engage with unions on matters within the scope of representation “prior to arriving at a determination of policy or course of action.” (§ 3505.) This broad formulation encompasses more than formal actions taken by the governing body itself. Under the circumstances here, the MMBA applies to the mayor’s official pursuit of pension reform as a matter of policy. The Court of Appeal erred, first by reviewing PERB’s interpretation of the governing statutes de novo, and second by taking an unduly constricted view of the duty to meet and confer.
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Wednesday, August 1, 2018
Nishiki v. Danko Meredith, APC
Nishiki v. Danko Meredith, APC (CA1/4 A147733 8/1/18) Wage & Hour/Waiting Time and Attorneys’ Fees
When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours. (Lab. Code § 202, subd. (a).) If the employer willfully fails to do so, the employee’s wages continue as a penalty from that due date until the wages are paid, for up to 30 days. (§ 203.) This case considers an award of these “waiting time” penalties, as well as an award of attorney fees to the employee for the employer’s unsuccessful appeal. (§ 98.2.)
Taryn Nishiki, a former employee of defendant Danko Meredith P.C., filed a complaint with the California Labor Commissioner (the commissioner) seeking vacation wages, rest period premiums, and waiting time penalties. She prevailed on her claim for waiting time penalties, and was awarded $4,250. Defendant appealed the award to the superior court, which affirmed the commissioner’s award, and awarded Nishiki $86,160 in attorney fees. On appeal, defendant contends the waiting time penalties are unwarranted and the attorney fee award was excessive. We shall reduce the waiting time penalties and otherwise affirm the judgment.
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When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours. (Lab. Code § 202, subd. (a).) If the employer willfully fails to do so, the employee’s wages continue as a penalty from that due date until the wages are paid, for up to 30 days. (§ 203.) This case considers an award of these “waiting time” penalties, as well as an award of attorney fees to the employee for the employer’s unsuccessful appeal. (§ 98.2.)
Taryn Nishiki, a former employee of defendant Danko Meredith P.C., filed a complaint with the California Labor Commissioner (the commissioner) seeking vacation wages, rest period premiums, and waiting time penalties. She prevailed on her claim for waiting time penalties, and was awarded $4,250. Defendant appealed the award to the superior court, which affirmed the commissioner’s award, and awarded Nishiki $86,160 in attorney fees. On appeal, defendant contends the waiting time penalties are unwarranted and the attorney fee award was excessive. We shall reduce the waiting time penalties and otherwise affirm the judgment.
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Peredia v. HR Mobile Services, Inc
A safety consultant is liable to an employee of the firm that hired the safety consultant when the employee establishes the elements of a negligent undertaking claim. To establish a negligent undertaking claim, a plaintiff must establish that the consultant undertook to render services to the employer, the services rendered were of a kind the consultant should have recognized as necessary for the protection of the employees of the employer, the consultant to exercise reasonable care in the performance of its undertaking, the failure to exercise reasonable care resulted in physical harm to an employee, and the consultant's carelessness either increased the risk of such harm, or the undertaking was to perform a duty owed by the employer to the employees, or the harm was suffered because of the reliance of the employer the employees upon the undertaking. Acts are "wrongful in their nature" for purposes of Civil Code Sec. 2343 when they constitute an independent tort, such as the tort of negligent undertaking.
Peredia v. HR Mobile Services, Inc - filed July 30, 2018, Fifth District
Cite as 2018 S.O.S. 3736
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http://beverlyhillsemploymentlaw.com/
Peredia v. HR Mobile Services, Inc - filed July 30, 2018, Fifth District
Cite as 2018 S.O.S. 3736
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Tuesday, July 31, 2018
Estill v. County of Shasta
Estill v. County of Shasta (CA3 C077513 7/31/18) Government Claim/Internal Investigation
Renee Estill submitted a government claim against the County of Shasta and others, specifically representing that she first became aware of the alleged incident [an internal affairs investigation by her employer] on September 9, 2011. The County accepted Estill’s representation and denied her claim on the merits. Because it accepted the claim as timely, the County did not warn Estill to seek leave to present a late claim. This lawsuit followed.
During Estill’s deposition, however, defendants learned she was aware of the alleged wrongdoing as early as 2009. The trial court granted defendant’s motion for summary judgment primarily on the ground that Estill’s government claim was untimely, but later granted her motion for a new trial, ruling there are triable issues of fact as to whether defendants waived their defense of untimeliness because the County did not warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3, subdivision (b). Defendants appeal from the order granting Estill a new trial, and Estill cross-appeals from the judgment in favor of defendants.
After oral argument in this case, we asked the parties for supplemental briefing on the application of equitable estoppel in this context. We conclude that a claimant may be estopped from invoking the section 911.3 waiver provision where a public entity’s failure to notify the claimant that a claim is untimely is induced by the claimant’s representation on the government claim form. And in this case, based on the entire appellate record, including the supplemental briefs, we conclude Estill is estopped from asserting that defendants waived their defense of untimeliness. She represented in her government claim that the incident of wrongdoing occurred in September 2009, but that she “first became aware” of the incident on September 9, 2011. She included an attachment to her government claim in which she could have explained what she had learned in 2009 and 2010 about the alleged misconduct, but she did not mention her prior knowledge. Thus, the record indicates she intended for the County to rely on her representation in the government claim, and the County did in fact rely on the representation. Accordingly, we will reverse the trial court’s order granting Estill’s motion for a new trial and affirm the judgment entered in favor of defendants.
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http://beverlyhillsemploymentlaw.com/
Renee Estill submitted a government claim against the County of Shasta and others, specifically representing that she first became aware of the alleged incident [an internal affairs investigation by her employer] on September 9, 2011. The County accepted Estill’s representation and denied her claim on the merits. Because it accepted the claim as timely, the County did not warn Estill to seek leave to present a late claim. This lawsuit followed.
During Estill’s deposition, however, defendants learned she was aware of the alleged wrongdoing as early as 2009. The trial court granted defendant’s motion for summary judgment primarily on the ground that Estill’s government claim was untimely, but later granted her motion for a new trial, ruling there are triable issues of fact as to whether defendants waived their defense of untimeliness because the County did not warn Estill that she should seek leave to present a late claim pursuant to Government Code section 911.3, subdivision (b). Defendants appeal from the order granting Estill a new trial, and Estill cross-appeals from the judgment in favor of defendants.
After oral argument in this case, we asked the parties for supplemental briefing on the application of equitable estoppel in this context. We conclude that a claimant may be estopped from invoking the section 911.3 waiver provision where a public entity’s failure to notify the claimant that a claim is untimely is induced by the claimant’s representation on the government claim form. And in this case, based on the entire appellate record, including the supplemental briefs, we conclude Estill is estopped from asserting that defendants waived their defense of untimeliness. She represented in her government claim that the incident of wrongdoing occurred in September 2009, but that she “first became aware” of the incident on September 9, 2011. She included an attachment to her government claim in which she could have explained what she had learned in 2009 and 2010 about the alleged misconduct, but she did not mention her prior knowledge. Thus, the record indicates she intended for the County to rely on her representation in the government claim, and the County did in fact rely on the representation. Accordingly, we will reverse the trial court’s order granting Estill’s motion for a new trial and affirm the judgment entered in favor of defendants.
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Friday, July 27, 2018
Troester v. Starbucks Corporation
Troester v. Starbucks Corporation (SC S234969 7/26/18) FLSA/De Minimis Doctrine
Upon a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548), we agreed to answer the following question: Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063, apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?
The de minimis doctrine is an application of the maxim de minimis non curat lex, which means “[t]he law does not concern itself with trifles.” (Black’s Law Dict. (10th ed. 2014) p. 524.) Federal courts have applied the doctrine in some circumstances to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.
We approach the question presented in two parts: First, have California’s wage and hour statutes or regulations adopted the de minimis doctrine found in the federal Fair Labor Standards Act (FLSA)? We conclude they have not. There is no indication in the text or history of the relevant statutes and Industrial Welfare Commission (IWC) wage orders of such adoption.
Second, does the de minimis principle, which has operated in California in various contexts, apply to wage and hour claims? In other words, although California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law? We hold that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work “off the clock” several minutes per shift. We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Upon a request by the United States Court of Appeals for the Ninth Circuit (Cal. Rules of Court, rule 8.548), we agreed to answer the following question: Does the federal Fair Labor Standards Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 692, and Lindow v. United States (9th Cir. 1984) 738 F.2d 1057, 1063, apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197?
The de minimis doctrine is an application of the maxim de minimis non curat lex, which means “[t]he law does not concern itself with trifles.” (Black’s Law Dict. (10th ed. 2014) p. 524.) Federal courts have applied the doctrine in some circumstances to excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record.
We approach the question presented in two parts: First, have California’s wage and hour statutes or regulations adopted the de minimis doctrine found in the federal Fair Labor Standards Act (FLSA)? We conclude they have not. There is no indication in the text or history of the relevant statutes and Industrial Welfare Commission (IWC) wage orders of such adoption.
Second, does the de minimis principle, which has operated in California in various contexts, apply to wage and hour claims? In other words, although California has not adopted the federal de minimis doctrine, does some version of the doctrine nonetheless apply to wage and hour claims as a matter of state law? We hold that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given to us by the Ninth Circuit, where the employer required the employee to work “off the clock” several minutes per shift. We do not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
Thursday, July 26, 2018
Windsor Redding Care Center, LLC
Windsor Redding Care Center, LLC (20-CA-070465, et al.; 366 NLRB No. 127) Redding CA, July 27, 2018.
The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully refuse to engage in predisciplinary or postdisciplinary bargaining with the Union. A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) further agreed with the judge that the Respondent did not unlawfully terminate a housekeeping employee; Member McFerran would have found that the Respondent failed to establish that it would have taken the same action absent the employee’s union activity. Contrary to the judge, the Board unanimously found that the Respondent unlawfully changed its practice of granting merit raises. A Board majority (Members McFerran and Kaplan; Member Emanuel, dissenting) additionally found that the Respondent unlawfully terminated a restorative nursing assistant; Member Emanuel would have found that the Respondent established that it would have discharged the employee even absent the employee’s union activity.
Charges filed by SEIU United Service Workers-West. Administrative Law Judge Gregory Z. Meyerson issued his decision on December 31, 2012. Members McFerran, Kaplan, and Emanuel participated.
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The Board adopted the Administrative Law Judge’s conclusion that the Respondent did not unlawfully refuse to engage in predisciplinary or postdisciplinary bargaining with the Union. A Board majority (Members Kaplan and Emanuel; Member McFerran, dissenting) further agreed with the judge that the Respondent did not unlawfully terminate a housekeeping employee; Member McFerran would have found that the Respondent failed to establish that it would have taken the same action absent the employee’s union activity. Contrary to the judge, the Board unanimously found that the Respondent unlawfully changed its practice of granting merit raises. A Board majority (Members McFerran and Kaplan; Member Emanuel, dissenting) additionally found that the Respondent unlawfully terminated a restorative nursing assistant; Member Emanuel would have found that the Respondent established that it would have discharged the employee even absent the employee’s union activity.
Charges filed by SEIU United Service Workers-West. Administrative Law Judge Gregory Z. Meyerson issued his decision on December 31, 2012. Members McFerran, Kaplan, and Emanuel participated.
For more information contact us at:
http://beverlyhillsemploymentlaw.com/
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