Newly-Published Labor and Employment Cases

Luna v. Hansen & Adkins Auto Transport (9^th Cir. 18-55804 4/24/20) Fair Credit Reporting Act/Disclosure Provided with Other Employment Materials

The 9^th circuit panel held that an employer does not violate the Fair Credit Reporting Act by providing a FCRA disclosure simultaneously with other employment materials, and by providing a FCRA disclosure simultaneously with other employment materials, and by failing to place a FCRA authorization on a standalone document.

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/04/24/18-55804.pdf

Colucci v. T-Mobile USA, Inc. (CA4/1 D075932 4/29/20) FEHA Retaliation/Punitive Damages

The Court of Appeal reduced the punitive damages award of 4 million dollars in punitive damages awarded by a jury against T-Mobile  to an amount that is one and one-half (1.5) times the amount awarded in compensatory damages, and otherwise the Court of Appeal affirmed the judgment. The jury awarded $5 million in favor of former employee Stephen Colucci in a workplace retaliation case. T-Mobile primarily challenged the $4 million punitive damages award, arguing there is insufficient evidence that a managing agent engaged in retaliatory conduct or that the managing agent’s actions were malicious or oppressive (Civ. Code, § 3294, subd. (b)).  Alternatively, it argued the punitive damages award is constitutionally excessive and must be reduced.  Finally, T-Mobile contended the jury’s $200,000 award of damages for future emotional distress is not supported by sufficient evidence.

https://www.courts.ca.gov/opinions/documents/D075932.PDF

Obbard v. State Bar of California (CA1/5 A155106 4/28/20) Superior Court Research Attorneys are State of California Employees Not Subject to MCLE

The State Bar of California (State Bar) argued that respondent Philip B. Obbard, a research attorney for the Superior Court of the State of California, is not a state employee and is not, therefore, exempt from the State Bar’s mandatory continuing legal education requirements.  (See Bus. & Prof. Code, § 6070, subd. (c) [exempting “employees of the State of California”]). The trial court disagreed and entered judgment for Obbard.  The Court of Appeal affirmed.

https://www.courts.ca.gov/opinions/documents/A155106.PDF

Int’l Bhd. Of Teamsters v. NASA Servs. (9^th Cir. 19-55166 5/1/20) Arbitration

The 9^th circuit panel reversed the district court’s order compelling arbitration of a labor dispute and remanded. A waste management company and a union signed a Labor Peace Agreement containing an arbitration clause. The 9^th circuit panel held that under California contract law, the LPA clearly and unambiguously contained a condition precedent to formation, rather than a condition precedent to performance. If the condition precedent failed, then there was no contract. The panel remanded for the district court to determine in the first instance whether the city and the company entered an exclusive franchise agreement by December 31, 2016. The panel held that if that condition failed, then the district court could not compel arbitration.

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/01/19-55166.pdf

Nelson v. Tucker Ellis, LLP (CA1/3 A153661 5/5/20) Interference with Contract and Prospective Economic Advantage

The Court of Appeal affirmed the judgment of the trial court. Plaintiff Evan C. Nelson, an attorney, brought this tort action against his former employer Tucker Ellis based on its production of materials in response to a valid out-of-state subpoena.  According to Nelson, these materials were his privileged and confidential work product communications not subject to disclosure without his consent.  He asserts causes of action for negligence, invasion of privacy, intentional and negligent interference with contract, intentional and negligent interference with prospective economic advantage, and conversion. On appeal, Nelson seeks reversal of the judgment, arguing the trial court prejudicially erred when finding each of his causes of action barred under the law of the case as determined by this court in Tucker Ellis LLP v. Superior Court (2017) 12 Cal.App.5th 1233 (Tucker Ellis III).  In Tucker Ellis III, we held inter alia that Tucker Ellis, not Nelson, was the holder of the work product privilege with respect to the materials in question.  Nelson also challenges the trial court’s alternative ruling that the litigation privilege codified in Civil Code section 47 barred each of his claims, as well as the court’s subsequent denial of his request to amend the complaint.

Galeotti v. Internat. Union of Operating Engineers etc. (CA1/5 A157785 5/6/20) Threat to Terminate Employment Can be Extortion/Wrongful Termination

The Court of Appeal concluded that a threat to terminate employment can provide a basis for an extortion claim, and, for this and other reasons, the allegations of the second amended complaint stated a cause of action for wrongful termination in violation of public policy.  In the unpublished portion of our opinion, we concluded the second amended complaint stated RICO claims but the first amended complaint did not state a cause of action for interference with prospective economic advantage.

https://www.courts.ca.gov/opinions/documents/A157785.PDF