Labor and Employment Law

Newly-Published Labor and Employment Cases

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Briley v. City of West Covina (CA2/4 B295666 7/1/21) Labor Code section 1102.5 Retaliation 
Plaintiff was not required to exhaust his administrative remedies by challenging his termination before the city’s human resources commission because his immediate supervisor, who he claimed had fired him in retaliation for making various safety and misconduct complaints, would be involved in deciding the appeal. $3.5 million noneconomic damages award was excessive; award vacated and remanded for new trial on damages.

Columbia Export Terminal v. ILWU (9th Cir. 20-35037 6/28/21) RICO/Fraudulent Time Sheets/LMRA § 301 
Section 301 of the Labor Management Relations Act barred adjudication of plaintiff’s Racketeer Influenced and Corrupt Organizations Act claims against a union and individual union members alleging overbilling via fraudulent timesheets because resolution of those claims required interpretation of the collective bargaining agreement under which the workers were employed, and the CBA provided a process for arbitration of disputes.

Levanoff v. Dragas (CA4/3 G058480 6/25/21) Rate-in-Effect Method for Overtime Calculation/PAGA 
California law permits employers to use the rate-in-effect method of determining the regular rate of pay for purposes of overtime compensation of employees who work at different pay rates during a single workweek. Under this method, the regular rate of pay is the hourly rate in effect at the time the overtime hours began. California law does not mandate use of the weighted average method, whereby the regular rate of pay is determined by adding all hours worked in the week and dividing that number into the total compensation for the week.

Goals for Autism v. Rosas (CA1/5 A158062 6/24/21) Workplace Violence Restraining Order 
Code of Civil Procedure section 527.8, which allows a court to issue a restraining order to prevent workplace violence, does not require a court to grant the respondent a continuance after he or she has responded to the petition.

Cedar Point Nursery v. Hassid (US 20-107 06/23/2021) Right to Take Access to Agricultural Employers’ Property for Union Organizing/Pe Se Physical Taking 
California regulation granting union organizers access to an agricultural employer’s property for up to 3 hours per day on 120 days per year in order to solicit support for unionization constituted a per se physical taking of employers’ property under the Fifth and Fourteenth Amendments to the U.S. Constitution.

Professional Transportation, Inc. (370 NLRB No. 132 06/09/2021) Unsuccessful Solicitation of Mail Ballots Is Objectionable Conduct
Unsuccessful solicitation of mail ballots by a party to a union election is objectionable conduct that may warrant setting aside an election when the solicitation affected a determinative number of voters.

Moreno v. Bassi (CA5 F078400 6/8/21) Mixed Minimum Wage-FEHA Claims/Attorney Fees and Costs
Code of Civil Procedure section 1031’s 20% cap on attorney fee awards does not apply to claims subject to an attorney fee award under Labor Code section 1194(a), which applies to claims seeking payment of minimum wages and overtime compensation. Government Code section 12965(b) bars recovery of costs caused solely by the inclusion of Fair Employment and Housing Act claims in a lawsuit (e.g., a filing fee for a motion that dealt exclusively with FEHA issues); all other allowable costs may be recoverable under Code of Civil Procedure section 1032.

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