Labor and Employment Law


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Boermeester v. Carry (SC S263180 per curiam 7/31/23) Private Universities’ Title IX Hearings 

When investigating and disciplining students accused of sexual misconduct or intimate partner violence under title IX of the Education Amendments of 1972, private universities are required to comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard. But they are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.  

Kuciemba v. Victory Woodworks, Inc. (9th Cir. 21-15963 7/25/23) COVID-19 | Duty of Care to Employee’s Household Members 

The complaint alleged that Mrs. Kuciemba contracted a severe case of COVID-19 from Mr. Kuciemba as a result of Victory’s negligent failure to protect its employees from the virus. In Kuciemba v. Victory Woodworks, Inc. (see entry below), the California Supreme Court held that employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19. Because Victory owed no duty of care to Mrs. Kuciemba, the panel affirmed the district court’s order dismissing the complaint.

Crowe v. Wormuth (9th Cir. 21-15802 7/25/23) Exhaustion of Administrative Remedies | Merit Systems Protection Board 

The court reversed and remanded the district court’s ruling that Crowe failed to exhaust administrative remedies before the Merit Systems Protection Board with respect to pre-termination adverse employment actions, finding the MSPB lacks jurisdiction over such claims. The court affirmed: the district court’s ruling that Crowe failed to exhaust before the MSPB any other theories of discrimination for his termination besides sexual orientation; the grant of summary judgment on Crowe’s Title VII claim finding, based on the MSPB decision concluding Crowe was terminated for misconduct, not because of his sexual orientation, that no genuine issue of material fact existed as to the reason for Crowe’s termination; and the grant of summary judgment on Crowe’s claim under the Civil Service Reform Act because substantial evidence supported the MSPB’s findings of Crowe’s on-duty misconduct.

L & S Framing Inc. v. Cal. Occupational Saf. & Health Appeals Bd. (CA3 C096386, filed 6/29/23, pub. 7/24/23) Cal-OSHA Appeals Board | Amendment of Citation 

The trial court properly affirmed the Appeals Board’s allowance of two amendments to the citation because the amendments merely asserted a new legal theory based on the same facts alleged in the citation. The trial court also properly affirmed the Appeals Board’s finding that L & S Framing violated regulations requiring fall protection around stairwells and floor openings, as the Board’s interpretation of the regulations comported with their plain language and substantial evidence supported the Board’s finding that the regulations were violated.

Woodworth v. Loma Linda Univ. Med. Center (CA4/2 E072704 7/24/23) Class Certification & PAGA Action 

The court followed Camp v. Home Depot USA, Inc. (2022) 84 Cal.App.5th638, in rejecting the time rounding standard of See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889. The court affirmed summary adjudication of Woodworth’s claim for unpaid overtime, holding that an employer’s failure to comply with the requirement to disclose the effects of an alternative workweek schedule before employees vote on the AWS renders the election null and void only if the employer omits material information about the proposed AWS’s effects. The court further agreed with Estrada v. Royalty Carpet Mills, Inc. (2022) 76 Cal.App.5th 685, that trial courts may not strike or dismiss a PAGA claim for lack of manageability.

Carmona v. Domino’s Pizza (9th Cir. 21-55009 7/21/23) Employment Arbitration | Interstate Commerce 

On remand from the United States Supreme Court for reconsideration in light of Southwest Airlines Co. v. Saxon (2022) 142 S. Ct. 1783, the court affirmed its prior decision that Domino’s truck drivers are engaged in interstate commerce and thus their employment-related claims are exempt from the Federal Arbitration Act. Nothing in Saxon undermined the court’s previous ruling that the plaintiff drivers operate in a single, unbroken stream of interstate commerce—despite the journey of goods being paused at a warehouse—because the goods were inevitably destined from the outset of the interstate journey for Domino’s franchisees.

Holley-Gallegly v. TA Operating, LLC (9th Cir.  22-55950 7/21/23) Employment Arbitration | Delegation Clause 

The panel vacated the district court’s order denying defendant TA Operating LLC’s motion to compel arbitration of employment-related claims brought by Holley-Gallegly and remanded for the district court to order the arbitrator to decide the issue of arbitrability. The district court ruled that the parties had delegated issues of arbitrability to the arbitrator and the delegation was clear and unmistakable, but that the delegation clause was unconscionable and therefore unenforceable. The panel held that the arbitration agreement’s jury waiver provision did not render the delegation clause unconscionable because it would apply only if the agreement were determined to be unenforceable. As such, it could not support the conclusion that an agreement to arbitrate enforceability (i.e., the delegation clause) was unenforceable.

Progressive Democrats v. Bonta (9th Cir. 22-15323 7/19/23) State and Local Government Employees | First Amendment 

Government Code section 3205 prohibits local government employees from soliciting political contributions from their coworkers but does not bar the same conduct by state employees. The court held section 3205 violates the First Amendment because the speculative benefits identified by the state failed to justify the burden on local government employees’ political expression. Specifically, the state: failed to produce evidence supporting the differential treatment of local and state government workers; failed to show that intragovernmental solicitations have coerced government employees to support particular candidates or caused them to perform their duties in a partisan manner; and did not take into account agency size, which undercut the argument the statute was properly tailored. The court also found section 3205 is underinclusive as a means of limiting the actuality and appearance of partisan behavior by public employees because it does not bar many types of publicly partisan behavior, such as “donating to partisan groups, leading political organizations, soliciting the public on behalf of their favored candidates and causes, and running for office themselves.”

Adolph v. Uber Technologies, Inc. (SC S274671 7/17/23) Arbitration | PAGA and Standing 

Where a plaintiff has brought a Private Attorneys General Act action containing individual and non-individual claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate claims on behalf of other employees under PAGA. 

Zirpel v. Alki David Productions, Inc. (CA2/4 B317334, filed 6/20/23, pub. ord. 7/14/23) Lab. Code § 1102.5 Retaliation 

Labor Code section 1102.5(c) prohibits an employer from retaliating “against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.” At the relevant time, the Los Angeles Municipal Code required a permit be issued before certain theater installation work can begin. Zirpel refused ADP’s direction to continue an installation that had not received a permit, and ADP fired him for his refusal. The appellate court affirmed a jury verdict in Zirpel’s favor.

Grace v. The Walt Disney Company (CA4/3 G061004 7/13/23) Anaheim Living Wage Ordinance 

Anaheim’s Living Wage Ordinance applies to hospitality employers that benefit from a “City Subsidy.” “A ‘City Subsidy’ is any agreement with the city pursuant to which a person other than the city has a right to receive a rebate of transient occupancy tax, sales tax, entertainment tax, property tax or other taxes, presently or in the future, matured or unmatured.” Under an agreement with the city, Disney agreed to make up any shortfall in the city’s infrastructure bond payments when tax revenues were insufficient to cover the city’s bond repayment obligations; the city would reimburse any such payments in years when its tax revenues were sufficient to meet its bond obligations. Because the agreement gives Disney the right to receive a tax rebate under certain circumstances, Disney receives a “City Subsidy” and therefore must pay its employees the municipal minimum wage under the Living Wage Ordinance.

Thai v. International Business Machines Corp. (CA1/5 A165390 7/11/23) COVID-19 Stay-at-Home Order | Employee Expenses 

Labor Code section 2802(a) requires an employer to “indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.” Under the section’s plain language, the obligation to indemnify does not turn on whether the employer’s order was the proximate cause of the expenses; it turns on whether the expenses were actually due to performance of the employee’s duties. Consequently, section 2802(a) requires reimbursement of expenses incurred by employees to perform their work from home as a result of the Governor’s March 19, 2020 stay-at-home order.

Kuciemba v. Victory Woodworks, Inc. (SC S274191 7/6/23) COVID-19 | Duty of Care to Employee’s Household Members 

The Workers’ Compensation Act’s exclusivity provisions do not bar an employee’s household member from recovering for injuries that are not legally dependent upon an injury suffered by the employee. Although it is foreseeable that an employer’s negligence in permitting workplace spread of COVID-19 would cause members of employees’ households to contract the disease, recognizing a duty of care to nonemployees in this context would impose an intolerable burden on employers and society in contravention of public policy. Accordingly, employers do not owe a tort-based duty to nonemployees to prevent the spread of COVID-19. 

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