Labor and Employment Law


Brown v. City of Inglewood (CA2/1 B320658 6/30/23) Labor Code section 1102.5 | Elected Official

Brown, the elected treasurer of the City of Inglewood, brought a retaliation claim under Labor Code section 1102.5 alleging the City Council no longer allowed her to sit on the dais at Council meetings because Brown had raised allegations of financial impropriety by Council members. The court held Brown had no cause of action under section 1102.5 because that section protects only “employees” and the statute does not define “employee” to include elected officials, as other statutes such as the Workers’ Compensation Act do. Accordingly, the trial court erred in denying the City’s anti-SLAPP motion as to Brown’s section 1102.5 retaliation claim.

O’Brien v. The Regents of the U. of Cal. (CA1/3 A164481 6/29/23) Faculty Discipline | Unwanted Sexualized Conduct 

The court affirmed the trial court’s order denying O’Brien’s petition for writ of mandate seeking to overturn a one-year suspension imposed on him by the University of California for violating the University’s Faculty Code of Conduct. The University’s rule requiring it to initiate disciplinary action within three years of receiving a report of misconduct did not bar the suspension because an earlier complaint by a different student was not a report of the wrongdoing for which he was suspended. The court found substantial evidence supported the University’s finding that the student who complained was a “colleague” of O’Brien’s, as the Faculty Code of Conduct uses that term, at the time of the misconduct.

Groff v. DeJoy (US 22-174 6/29/23) Title VII | Religious Accommodation 

In Trans World Airlines, Inc. v. Hardison (1977) 432 U. S. 63, the Supreme Court construed 42 U.S.C. section 2000e(j)’s requirement that an employer accommodate an employee’s religious practice unless the accommodation would cause “undue hardship” to the employer’s business to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” The Court clarified that 42 U.S.C. section 2000e(j) requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

Cvejic v. Skyview Capital (CA2/8 B318880 6/28/23) Arbitration | Tardy Fees 

Code of Civil Procedure section 1281.98 allows a party to arbitration to withdraw from arbitration if the other party fails to pay costs or fees within 30 days after the due date. The statute does not empower an arbitrator to cure a party’s missed payment, nor does it give the arbitrator the right to rule on the withdrawal request. Because Skyview did not pay required fees within days of the due date, the trial court properly granted Cvejic’s request to withdraw from arbitration.

Harper v. Nedd (9th Cir. 22-35036 6/26/23) 5th Amendment Bivens Action | Federal Employment 

David Harper, a former Bureau of Land Management Law Enforcement Ranger in Idaho, challenged adverse employment actions taken against him by the Department of the Interior and BLM officials. He sued defendants alleging a violation of his Fifth Amendment right to due process. The panel held that Harper had no claim for money damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971) 403 U.S. 38. Citing Egbert v. Boule (2022) 142 S. Ct. 1793, the panel stated that the Supreme Court means what it says: Bivens claims are limited to the three contexts the Court has previously recognized and are not to be extended unless the Judiciary is better suited than Congress to provide a remedy. Here, Harper’s claims arose in a different context than what the Court has recognized. Congress has also already provided a remedy in this context under the Civil Service Reform Act of 1978.

Blaylock v. DMP 250 Newport Center (CA4/3 G061301, filed 5/30/23, pub. ord. 6/23/23) Privette Doctrine 

Privette v. Superior Court (1993) 5 Cal.4th 689 limits a property owner’s potential liability for on-the-job injuries sustained by employees of an independent contractor. There is an exception to the Privette doctrine’s rule of nonliability in cases where “(1) [the property owner] knows or reasonably should know of a concealed, pre‑existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.” (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675.) While the evidence submitted by Blaylock might be sufficient to demonstrate DMP should have known the access panel existed, there was no evidence it knew or should have known the panel was either concealed from a person in the crawl space above, or that it was hazardous. The Kinsman rule is therefore inapplicable.

Coinbase, Inc. v. Bielski (US 22–105, 599 U. S. ____ (2023), 6/23/23) Stay | Interlocutory Appeal of Arbitrability Question

Section 16(a) of the Federal Arbitration Act does not say whether district court proceedings must be stayed pending resolution of an interlocutory appeal from the denial of a motion to compel arbitration. Under Griggs v. Provident Consumer Discount Co. (1982) 459 U. S. 56, an appeal, including an interlocutory appeal, “divests the district court of its control over those aspects of the case involved in the appeal.” Because the question on appeal is whether the case belongs in arbitration or in the district court, the entire case is essentially “involved in the appeal,” and Griggs dictates that the district court stay its proceedings while the interlocutory appeal on arbitrability is ongoing.

Leon v. County of Riverside (SC S269672 6/22/23) Public Employee Investigatory Immunity 

Government Code section 821.6 immunizes public employees from liability for “instituting or prosecuting any judicial or administrative proceeding” within the scope of their employment, “even if” the employees act “maliciously and without probable cause.” This provision immunizes public employees from claims of injury caused by wrongful prosecution but does not broadly immunize police officers or other public employees for any and all harmful actions they may take in the course of investigating crime.

Shah v. Dept. of Human Resources (CA3 C094482, filed 5/23/23, pub. ord. 6/15/23) State Employee Cash Award | Statute of Limitations 

Ratilal Shah sued the California Department of Transportation and the State Merit Award Board, alleging the Board wrongfully denied him cash awards for suggestions that saved the state money. The California Department of Human Resources, acting on behalf of the Board, filed a demurrer, claiming the action is barred by the limitations period in Government Code section 19815.8. The court affirmed the trial court’s ruling that the one-year statute of limitations in Government Code section 19815.8, rather than the two-year statute of limitations for filing a government claim in Government Code section 945.6, applied because the former statute was more specific to the type of claim filed by Shah.

The Atlanta Opera, Inc. (NLRB 10-RC-276292 6/13/23) NLRA Independent Contractor

The National Labor Relations Board overruled SuperShuttle DFW, Inc. (2019) 367 NLRB No. 75, and reinstated its prior test under FedEx Home Delivery (2014) 361 NLRB 610, for determining whether individuals are employees or independent contractors. Under FedEx, the Board applies traditional common-law agency standards as set forth in the Restatement (Second) of Agency. In overruling SuperShuttle, the Board criticized that decision’s elevation of “entrepreneurial opportunity” above the other common law factors.

Sharp v. S&S Activewear, L.L.C (9th Cir. 21-17138 6/7/23) Hostile Work Environment | Offensive Musical Content  

Eight former employees, seven women and one man, alleged that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its warehouse. Aligning with the decisions of other circuits, the panel held that music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex. In instructing the district court on remand, the court noted that (1) harassment need not be directly targeted to a particular plaintiff to give rise to a Title VII claim and (2) the challenged conduct’s offensiveness to multiple genders does preclude stating a Title VII claim.

Glacier Northwest, Inc. v. Teamsters (US 21-1449 6/1/23) NLRA Preemption 

Under San Diego Building Trades Council v. Garmon (1959) 359 U. S. 236, the National Labor Relations Act preempts state law tort claims if the conduct alleged in the complaint is “arguably protected” or “arguably prohibited” by the NLRA. The NLRA does not protect strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work. Because Teamsters took no efforts to mitigate damage to Glacier’s trucks and mixed concrete foreseeably caused by concrete truck drivers’ sudden work stoppage, the Union’s conduct was not “arguably protected” by the NLRA. Accordingly, the NLRA did not preempt Glacier’s state law tort claims against Teamsters for losses to Glacier’s property caused by the strike.

Morales-Garcia v. Better Produce, Inc. (9th Cir. 22-55119 6/1/23) Joint Employer 

Under Labor Code section 2810.3(a)(1)-(3), (6), the outsourcing entity, known as a “client employer,” is liable for the laborers’ wages if the laborers’ work is within the outsourcers’ “usual course of business.” Better Produce cooled and sold berries obtained from the growers who hired the plaintiff agricultural workers. Because the plaintiffs’ work took place on the farms where the strawberries were grown, not on the premises or worksites of Better Produce (which were located near the farms), Better Produce was not liable as a client employer under section 2810.3.

Lion Elastomers LLC (NLRB 16-CA-190681 5/1/23) NLRA Protected Activity

The National Labor Relations Board overruled General Motors LLC (2020) 369 NLRB No. 127 and reinstated its prior setting-specific standards for determining when an employee’s conduct while exercising rights under the National Labor Relations Act amounts to misconduct egregious enough to lose the Act’s protection. In so doing, the Board criticized General Motors as improperly focusing on the employer’s motive rather than the effect disciplining the employee under the circumstances would have on the exercise of protected rights under the Act.

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