Labor and Employment Law

Newly-Published Labor and Employment Cases

Wilmot v. Contra Costa County Employees Retirement Association (CA1/2  A152100A 2/5/21) PEPRA/Pension Forfeiture for Criminal Conviction 

The Public Employees’ Pension Reform Act of 2013, which took effect on January 1, 2013, mandates forfeiture of pension rights and benefits based on conviction of a felony for conduct arising out of or in the performance of official duties. The forfeiture provision applied to a county employee whose retirement application was approved in April 2013 but effective December 13, 2012, because the employee did not become officially retired until April 2013. The forfeiture provision does not violate the constitutional contracts clause because restricting pension benefits to those who do not engage in work-related criminal conduct bears a material relation to successful operation of the pension system. And the forfeiture provision is not an unconstitutional ex post facto law because it is a civil penalty to deter job-related criminality.

Choochagi v. Barracuda Networks, Inc. (CA6 H045194, filed 12/30/20, ord. pub. 2/1/21) FEHA/CFRA Interference and Retaliation

Trial court properly granted summary judgment for employer on California Family Rights Act interference and retaliation claims because plaintiff failed to provide evidence that he asked for and was denied CFRA leave. Trial court properly granted summary judgment on Fair Employment and Housing Act retaliation claim where the managers who made the decision to terminate plaintiff did not know he had complained to human resources about his former supervisor’s sexually harassing comments, and the former supervisor’s negative feedback regarding plaintiff was not the “but for” cause of the termination because the decision makers had independently observed plaintiff’s performance deficiencies over a one-year period.

Assn. for L.A. Deputy Sheriffs v. County of L.A. (CA2/8 B296425 1/29/21) Public Sector MOU/Home Rule Doctrine 

Labor Code section 221 (which makes it unlawful “for any employer to collect or receive from an employee any part of wages theretofore paid by said employer to said employee”) and California’s wage garnishment law (CCP § 706.010 et seq.) do not apply to a charter county because the California Constitution gives charter counties the exclusive right to regulate matters relating to their employees’ compensation. The provision in the labor contract between the County and its deputy sheriffs’ union allowing the County to recoup overpayments of salary therefore was valid and enforceable.

Int’l Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration (9th Cir. 18-73488 1/15/21) Preemption/Meal and Rest Breaks for Commercial Vehicle Drivers 

The Federal Motor Carrier Safety Administration’s rest break regulations preempt California meal and rest break rules as applied to drivers of property-carrying commercial vehicles. The FMCSA’s regulations were a reasonable interpretation of the governing federal statute and preemption was necessary because applying California’s rules “would cause an unreasonable burden on interstate commerce.”

Scalia v. State of Alaska (9th Cir. 19-35824 1/15/21) FMLA/Workweek Defined 

Under the Family and Medical Leave Act, a “workweek” does not revolve around an individual employee’s own work schedule, but is simply a week-long period during which the employer is in operation. Thus, when a rotational employee (who works seven days followed by seven days off) takes FMLA leave, the week in which the employee is off counts toward the annual allotment of 12 workweeks of FMLA leave.

Vasquez v. Jan-Pro Franchising International, Inc. (SC S258191 1/14/21) Dynamex Applies Retroactively/Wage and Hour 

Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, which adopted the “ABC test” to distinguish employees from independent contractors, applies retroactively. Dynamex addressed an issue of first impression—how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors—and thus did not change a settled rule of law on which parties had relied. Because S.G. Borello & Sons v. Department of Industrial Relations (1989) 48 Cal.3d 341 did not address this issue, parties’ reliance on it does not preclude retroactive application of Dynamex.

Moser v. LVMPD (9th Cir. 19-16511 1/12/21) Retaliation for First Amendment Freedom of Expression/Government Employee’s Facebook Posting 

Summary judgment for employer reversed on former SWAT team member’s claim that the police department violated his First Amendment rights by firing him for commenting on Facebook that it was a “shame” that a suspect who had shot a police officer did not have any “holes” in him. There were triable issues of material fact as to whether plaintiff’s comment: (1) was a political statement or a call for violence against suspects and (2) would have likely caused disruption in the police department.

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