Labor and Employment Law

Newly-Published Labor and Employment Cases

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Cacho v. Eurostar, Inc. (CA2/7 B284827, filed 12/4/19, ord. pub. 12/23/19) Wage & Hour/Class Certification

Plaintiffs asserted class claims against their former employer, Eurostar, Inc., alleging Eurostar violated California wage and hour laws by failing to provide employees with required meal and rest breaks and compelling employees to work off the clock at Eurostar’s Warehouse Shoe Sale (WSS) retail shoe stores in California.  The Court of appeal answered no to the following questions in affirming the lower court’s decision: if the employer has a break policy (here, a meal break policy) that is compliant with the applicable wage order but silent as to certain requirements, does the omission of those requirements support class certification in the absence of evidence of a uniform unlawful policy or practice?  Similarly, where an employer has a uniform written break policy that on its face is unlawful (here, a rest break policy), but in practice the policy has not been applied to company employees, is it nonetheless suitable for class certification? Because plaintiffs failed to show they could prove Eurostar’s liability for meal break, rest break, and off-the-clock violations by common proof at trial, the trial court did not abuse its discretion in denying class certification.

Bahra v. City of San Bernardino (9th Cir. 18-55789 12/30/19) Lab. Code § 1102.5 and § 1983 Whistleblower Retaliation/Claim and Issue Preclusion 

Plaintiff challenged his termination, unsuccessfully, through an appeal to the County’s Civil Service Commission and subsequently filed the present action. The district court granted summary judgment for defendants, holding in part, that plaintiff’s claims for retaliation under California Labor Code section 1102.5 and 42 U.S.C. § 1983 were barred by claim preclusion and issue preclusion.

The court first held that the Commission’s order sustaining plaintiff’s dismissal did not preclude plaintiff’s section 1102.5 claim for retaliation. The court noted that although in California decisions by administrative agencies typically have preclusive effect, the California Court of Appeal recently applied a legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under section 1102.5. See Taswell v. Regents of Univ. of Cal., 232 Cal. Rptr. 3d 628, 643 (Ct. App. 2018).

The court affirmed in part and reversed in part the district court’s summary judgment in favor of San Bernardino County Department of Children and Family Services defendants in an action brought pursuant to 42 U.S.C. § 1983 and state law alleging that defendants fired plaintiff from his post as a social services practitioner in retaliation for his whistleblowing activities.

Ridgeway v. Walmart (9th Cir. 17-15983, 17-16142 1/6/10) Wage & Hour/Class Action

The case was initially filed in state court by four truck drivers. Wal-Mart removed the suit to federal court, and the parties agreed to a stay until the California Supreme Court issued Brinker Restaurant Corp. v. Superior Court, 273 P.3d 513 (Cal. 2012) (holding that employers must make meal and rest breaks available, but do not have to ensure that employees take such breaks). The district court certified the new class, granted partial summary judgment to plaintiffs on their minimum wage liability claims, and eventually conducted a jury trial and entered judgment.

The panel rejected Wal-Mart’s claim that the district court erred by failing to dismiss for lack of jurisdiction. The panel held that the district court correctly concluded that the case presented an Article III case or controversy because two lead plaintiffs remained in the action after the stay was lifted. The panel rejected Wal-Mart’s claims that plaintiffs should not have been awarded damages for layovers, rest breaks, and inspections. Specifically, the panel held that the district court correctly concluded that, under California law, time drivers spent on layovers was compensable if Wal-Mart exercised control over the drivers during those breaks. The panel further held that a comprehensive review of the Wal-Mart pay manual demonstrated that it unambiguously required drivers to obtain preapproval to take a layover at home, and therefore, the district court did not err in granting partial summary judgment on this issue to plaintiffs. The panel also held that the district court correctly determined that Wal-Mart’s written policies, if applied as written, resulted in Wal-Mart exercising control over employees during mandated layovers as a matter of California law. The panel held that the district court properly instructed the jury on layovers. The panel also held that there was sufficient evidence for the jury to find that Wal-Mart had exercised control over its drivers. The panel rejected Wal-Mart’s contention that the Federal Aviation Administration Authorization Act preempted California law governing layovers. The panel also affirmed the district court’s judgment awarding damages to plaintiffs for rest breaks and inspections.

Safeway Wage and Hour Cases (CA2/4 B287103 12/18/19) Wage & Hour/Misclassification

Former managers of Safeway supermarket stores sought unpaid overtime wages, claiming they had been misclassified as exempt executives under regulations applicable to the mercantile industry.  Following trial, a jury found respondent Safeway, Inc. had proven that appellant William Cunningham had been an exempt employee and thus was not entitled to overtime pay.  On appeal, Cunningham challenged an instruction directing the jury to classify any given task as exempt work whenever a manager engages in it “because it is helpful in supervising employees in the store or because it contributes to the smooth functioning of the store . . . .” 

The Court of Appeal clarified that a task does not become exempt merely because the manager undertakes it in order to contribute to the smooth functioning of the store.  An instruction on the consideration of the manager’s purpose, where appropriate, must inform the jury of relevant limiting principles outlined in the applicable regulations and recognized by prior decisions.  However, the Court of Appeal concluded the trial court’s instruction did not affect the jury’s verdict.

Bingener v. City of Los Angeles (CA2/3 B291112, filed 12/16/19, pub. ord. 1/9/20) Respondeat Superior/Going and Coming Rule

Mark and Eric Bingener appealed the trial court’s grant of the City of Los Angeles’s (City) motion for summary judgment.  The City argued that it was not liable for injuries caused by City employee Kim Rushton that led to the death of Ralph Bingener because Rushton was not acting within the course of his employment at the time of the accident.  Specifically, the City argued that the coming and going rule insulated it from liability.  

The Court of Appeal affirmed the judgment.  At summary judgment, plaintiffs failed to adduce sufficient facts upon which they could establish a triable issue of fact on their claim that Rushton’s accident was a foreseeable event arising from or relating to his employment for the City at its water plant laboratory.  Nothing about the enterprise for which the City employed Rushton made his hitting a pedestrian while commuting a foreseeable risk of this enterprise.  The “going and coming rule” was created for precisely the situation presented here and its application in this case precluded plaintiffs’ claim of vicarious liability against the City.

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