Labor and Employment Law

Newly-Published Labor and Employment Cases

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Brown v. TGS Management Co., LLC (CA4/3 G058323, filed 10/13/20, ord. pub. 11/12/20) Arbitration/Restrictive Employment Agreement 
The court vacated an arbitration award, finding the arbitrator exceeded his authority by issuing an award enforcing provisions of an employment agreement that illegally restricted the employee’s future right to work in the field of securities trading, in violation of Business and Professions Code section 16600.

Harris v. KM Industrial, Inc. (9th Cir. 20-16767 11/13/20) Wage & Hour/CAFA 
To remove a class action case from state court to federal court, the Class Action Fairness Act of 2005 requires the removing defendant to allege that the amount in controversy exceeds $5 million. Remand to state court was appropriate because the defendant’s allegation that the amount in controversy was over $7 million was based on unreasonable assumptions. Specifically, in response to plaintiffs’ factual challenge to the assumptions, the defendant failed to provide any evidence to support its assumption that all class members worked shifts long enough to qualify for meal or rest periods.

Big Lots Stores v. Super. Ct. (CA4/1 D077486 11/20/20) Misclassification/Pro Hac Vice Order 
Two lawyers licensed in Ohio were admitted pro hac vice to represent Big Lots in defending a misclassification case. The Ohio lawyers defended depositions of non-party witnesses who were former Big Lots employees. Plaintiffs filed a motion for disqualification, and the court revoked the pro hac vice admission. The appellate court found revocation was unwarranted, and remanded for the trial court to take appropriate corrective action based on any additional proceedings it deemed appropriate.

Olsen v. United States (9th Cir. 19-35389 11/23/20) FMLA/Willful Interference  
The Family and Medical Leave Act provides a three year statute of limitations for conduct that constitutes a “willful violation” of the Act. The standard for willfulness is the same as under the Fair Labor Standards Act—”the employer must know, or show reckless disregard for whether, its conduct was prohibited by the statute.”

Foroudi v. The Aerospace Corporation (CA2/8 B291302 11/24/20) RIF/Age Discrimination and Class Claims/Exhaustion of Administrative Remedies 
Leave to amend a complaint to include additional allegations of age discrimination was properly denied where the proffered amendment would not cure the plaintiff’s failure to exhaust administrative remedies. Plaintiff’s amendment of his Equal Employment Opportunity Commission complaint to include the claims he sought to add to the civil complaint did not exhaust his administrative remedies because an EEOC right to sue notice does not satisfy the exhaustion requirement for state law claims. Plaintiff’s amendment of his Department of Fair Employment and Housing complaint to include the claims he sought to add to the civil complaint did not exhaust his administrative remedies because the amendment was untimely and the new allegations did not relate back to those for which the DFEH right to sue letter was issued.

Ventura Coastal v. Occupational Safety & Health Appeals Bd. (CA5 F077267 12/1/20) CalOSHA/Writ of Mandate/Equitable Tolling 
Filing of a second petition for reconsideration with the Occupational Safety and Health Appeals Board was not permitted where the first petition for reconsideration resulted in the Board reaching the same result on the same evidence. Labor Code section 6627, under which a petition for writ of mandate must be filed in superior court “within 45 days after a petition for reconsideration is denied” by the OSHA Board, is a statute of limitations subject to equitable tolling under Saint Francis Memorial Hospital v. State Dept. of Public Health (2020) 9 Cal.5th 710. Case remanded to permit employer to amend writ petition to allege facts supporting equitable tolling.

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