Labor and Employment Law

Newly-Published Labor and Employment Cases

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Semprini v. Wedbush Securities, Inc. (CA4/3 G057740 11/9/20) Wage and Hour Exemption/Commissions 

Labor Code section 515 allows for the establishment of overtime pay exemptions for employees who perform certain duties and who “earn[ ] a monthly salary equivalent to no less than two times the state minimum wage for full-time employment.” A compensation plan based solely on commissions, with a recoverable draw against future commissions, does not qualify as a “salary” for purposes of the administrative exemption to overtime pay.

Midwest Motor Supply Co. v. Super. Ct. (CA1/4 A160096 10/28/20) Wage and Hour/Forum Selection 

Labor Code section 925 allows an employee to void a forum selection clause in an employment contract “entered into, modified, or extended on or after January 1, 2017.” Modification of the compensation provision of the employee’s contract in 2017 triggered application of Labor Code section 925, even though the employment contract originally was executed in 2014 and the 2017 modification did not modify the forum selection clause.

Carroll v Commission on Teacher Credentialing (CA3 C083250 10/23/20) Whistleblower Retaliation/Attorney-Client Privilege 

Jury verdict on plaintiff’s whistleblower complaint reversed because trial court committed prejudicial error by allowing plaintiff’s counsel to question witnesses on and ask the jury to draw negative inferences from defendants’ exercise of the attorney-client privilege, without giving the jury the mandatory curative instruction required by Evidence Code section 913.

Kramer v. Traditional Escrow (CA4/3 G058522 10/20/20) Wage and Hour/Default Judgment/Equitable Relief 

After the defendant employer answered the initial complaint, it changed its mailing address, email address, and telephone number without notifying plaintiff or the court. As a result of not receiving the amended complaint, the employer failed to file a response, and default judgment was entered. The trial court set aside the default judgment on the employer’s motion. The appellate court reversed, finding the employer’s failure to respond to the amended complaint was due to its own negligence.

Doe v. Google, Inc. (CA1/4 A157097 9/21/20) PAGA/NLRA/Garmon Exception 

Plaintiffs’ claims under the California Labor Code Private Attorneys General Act, alleging their employer’s confidentiality policies restricted their speech in violation of California law, were not preempted by the federal National Labor Relations Act. The “local interest exception” to preemption applied because the state law claims concerned individual, not collective, activity, and thus could be proven without considering whether the policies also amounted to unfair labor practices under federal law.

SEIU Local 121RN v. Los Robles Geg’l Med. Ctr. (9th Cir. 19-55185 9/18/20) Arbitration/Collective Bargaining Agreement 

When a collective bargaining agreement is silent on the issue, a court—not an arbitrator—is to determine whether the parties’ dispute is subject to arbitration under the contract’s arbitration clause. Prior to this decision, the Ninth Circuit had held that in the labor arbitration context arbitrability is to be decided by the arbitrator when the contract is silent. The court majority noted that this differential treatment of labor arbitration has been undercut by subsequent U.S. Supreme Court precedent holding that arbitrability should be treated the same in the labor and commercial contexts.

Belgau v. Inslee (9th Cir. 19-35137 9/16/20) Deduction of Union Dues/First Amendment 

A voluntary membership agreement that requires payment of union dues for an irrevocable one-year period does not violate the First Amendment because it does not compel financial support of a union in violation of Janus v. AFSCME Council 31 (2018) 138 S.Ct. 2448.

Dept. of Fair Employment and Housing v. Cathy’s Creations, Inc. (CA5 F077802 9/9/20)  Prevailing Defendant in DFEH Action/Attorneys’ Fees [applicable to employment cases]

A party that prevails against the Department of Fair Employment and Housing in an action for provisional relief brought by the DFEH under Government Code section 12974 cannot obtain an attorneys’ fee award under Code of Civil Procedure section 1021.5. Because the two code sections cannot be harmonized, the later-enacted and more specific unilateral attorneys’ fee provision in favor of DFEH in Government Code section 12974 prevails over the earlier, more general CCP 1021.5.

Salter v. Quality Carriers, Inc. (9th Cir. 20-55709 9/8/20) Wage and Hour Class Action/Amount in Controversy 

The federal Class Action Fairness Act requires that the amount in controversy exceed $5 million for a district court to have jurisdiction over the case. To meet this requirement in order to remove a case from state court to federal court, a defendant need only allege in its notice of removal “plausible allegations” based on “reasonable assumptions;” the notice “need not contain evidentiary submissions.” Because the allegations in defendant’s notice of removal supported federal jurisdiction on their face and plaintiff did not mount a factual attack on the allegations’ sufficiency, the district court improperly granted plaintiff’s motion to remand the case to state court.

In re Grice (9th Cir.  20-70780 9/4/20) Ride Share Drivers/FAA Exemption 

Section 1 of the Federal Arbitration Act, which exempts from the Act’s coverage employment contracts of transportation workers engaged in foreign or interstate commerce, does not apply to Uber rideshare drivers because the nature of the business in which they are engaged is local, like a taxicab company. The district court thus properly compelled plaintiff Uber drivers to arbitrate their class claims against Uber alleging the company failed to safeguard drivers’ and riders’ personal information and mishandled a data security breach.

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