Labor and Employment Law

Newly-Published Labor and Employment Cases

Li v. Dept. of Industrial Relations etc. (CA2/7 B288104 7/23/20) Writ of Mandate/Labor Commissioner/Posting Bond 

The Court of Appeal affirmed the superior court’s dismissal of Fushan Li’s petition for writ of mandate after his request that the court waive the bond requirement was denied and he failed to post a bond.  On appeal Li contended he was not properly subject to the bond requirement, which was adopted after the citations he challenged were issued, and, alternatively, the trial court abused its discretion in denying his request for relief from the requirement once he had demonstrated his indigency.  The Court of Appeal held that applying the bond requirement to Li was not an improper retroactive application because it did not change his substantive obligations to properly pay his employees. The Court also found that the trial court did not abuse its discretion by denying Li’s request from the bond requirement because its finding that he was not indigent was supported by substantial evidence.

Rittmann v. (9th Cir. 19-35381 8/19/20) Arbitration/FAA Exemption 

The panel affirmed the district court’s order denying the motion of, Inc., and Amazon Logistics, Inc., to compel arbitration of federal and state wage and hour claims brought by delivery workers.  Agreeing with the First Circuit, the panel held that AmFlex delivery workers were exempt from the Federal Arbitration Act’s enforcement provisions because they were transportation workers engaged in interstate commerce under 9 U.S.C. § 1 when they made “last mile” deliveries of goods in the stream of interstate commerce. The panel held that the arbitration provision, which included a choice-of-FAA clause, could not be enforced under either federal law or Washington state law.

Pasos v. Los Angeles County Civil Service Com. (CA2/7 B291952M, filed 7/20/20, mod., depub. den. 8/18/20) Law Enforcement Officer Discharge/Civil Service Commission 

The Los Angeles County Sheriff’s Department (Department) discharged Deputy Sheriff Meghan Pasos based on her failure to report another deputy’s use of force against an inmate and her failure to seek medical assistance for the inmate.  During the Department’s subsequent investigation Pasos admitted she did not report the use of force because she was concerned she would be “labeled as a rat” by her fellow deputies.  The custody division’s acting chief determined discharge was appropriate because Pasos’s conduct in perpetuating a code of silence among deputies undermined the Department’s operation of the jail and brought embarrassment to the Department.  The Los Angeles County Civil Service Commission (Commission) affirmed the discharge, but the trial court granted Pasos’s petition for writ of mandate and directed the Commission to set aside Pasos’s discharge, award her back pay, and reconsider a lesser penalty.  On appeal, the Department contended the trial court erred by substituting its own discretion for that of the Department in determining the appropriate penalty.  The Court of Appeal agreed.

Henry v. Adventist Health Castle Med. Ctr. (9th Cir. 19-16010 8/14/20) Title VII/Independent Contractor (Hawaii) 

The panel affirmed the district court’s grant of summary judgment in favor of the defendant in a Title VII action brought by a surgeon who provided on-call service in a hospital emergency department.  The panel held that Title VII did not protect the surgeon because he was an independent contractor, not an employee of defendant Adventist Health Castle Medical Center. The panel considered the surgeon’s payment arrangement, his limited obligations to Castle, and his description as an independent contractor in the parties’ contracts. The panel concluded that other factors, including the surgeon’s high skill level, Castle’s provision of assistants and medical equipment, and its mandatory professional standards, did not weigh strongly in the surgeon’s favor.

Heineke v. Santa Clara University (9th Cir. 18-16348 7/20/20) Professor-Student Sexual Harassment/42 U.S.C. § 1983/14th Amendment/Non-State Actor

The panel affirmed the district court’s dismissal of an action brought pursuant to 42 U.S.C. § 1983 alleging violations of the Fourteenth Amendment and of state law arising from the suspension and termination of plaintiff’s employment. Santa Clara University terminated plaintiff’s employment as an economics professor after concluding that plaintiff had sexually harassed his former student. The panel stated that it could not conclude, on the basis of plaintiff’s allegations, that Santa Clara University was a state actor. The panel held that the University, as a private university, does not become a state actor merely by virtue of being required by generally applicable civil rights laws to ameliorate sex (or any other form of) discrimination. The panel further held that receipt of federal and state funds conditioned on compliance with anti-discrimination laws is insufficient to convert private conduct into state action.

Judd v. Weinstein (9th Cir. 19-55499 7/29/20) Sexual Harassment/Unruh Civil Rights Act 

The panel reversed the district court’s dismissal of a sexual harassment claim under California Civil Code section 51.9 brought by actor Ashley Judd against producer Harvey Weinstein. The panel held that, as alleged, section 51.9 plainly encompassed Judd and Weinstein’s relationship, which was “substantially similar” to the “business, service, or professional relationship[s]” enumerated in the statute. The panel held further that their relationship consisted of an inherent power imbalance wherein Weinstein was uniquely situated to exercise coercion or leverage over Judd by virtue of his professional position and influence as a top producer in Hollywood. The panel held that whether Judd and Weinstein’s relationship was in fact an employment relationship outside the purview of section 51.9 was a question for the trier of fact and panel remanded for further proceedings.

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