Labor and Employment Law


Zamora v. Security Industry Specialists (CA6, filed 9/30/21, pub. ord. 10/29/21 H044008) FEHA Disability Discrimination, Retaliation, Wrongful Termination 
McDonnell Douglas burden-shifting framework applied to plaintiff’s disability discrimination claim because he presented no direct evidence of discrimination. Triable issue of material fact existed on plaintiff’s disability discrimination claim because a jury could find that the employer failed to engage in the interactive process by refusing to provide information about available positions that may have allowed plaintiff to perform modified work and avoid layoff, and could find that the employer harbored animus toward plaintiff because of his disability. Summary judgment reversed.

Harris v. County of Orange (9th Cir. 19-56387 10/28/21) Orange County Retiree Medical Plan
County retirees did not have a vested right to a health benefits premium subsidy when the applicable collective bargaining agreements allowed the county to unilaterally adopt a different retiree medical plan and the county did so, thereby eliminating the subsidy.

Uribe v. Crown Building Maintenance Co. (CA4/3 G057836, filed 9/30/21, pub. ord. 10/26/21) PAGA 
Intervenor had standing to challenge settlement agreement that would serve as res judicata to the PAGA claim in her separate lawsuit. Because plaintiff’s PAGA notice did not encompass a claim for unreimbursed cell phone expenses, the settlement agreement containing that claim could not be approved.

Najarro v. Super. Ct. (CA4/2 E076328A, filed 9/23/21, pub. ord. 10/25/21) Arbitration
Trial court granted motions to compel arbitration as to eight employees. Court of appeal remanded as to two employees to determine if the arbitration agreement was unconscionable, declared the agreement unenforceable as to four employees due to fraud in the execution, and affirmed the grant as to the remaining two employees.

Crestwood Behavioral Health v. Lacy (CA1/3 A158830 10/19/21) Wage & Hour Retaliation/Labor Commissioner Intervention 
After the Labor Commissioner began investigating Lacy’s retaliation claim against Crestwood, the trial court granted Crestwood’s motion to compel arbitration and stayed the investigation. When the Labor Commissioner later learned of the stay, she moved to vacate it; the trial court denied the motion. The court of appeal reversed, finding that the Labor Commissioner’s motion was timely and the stay order impaired the Commissioner’s ability to vindicate the public interest.

In re Walsh (9th Cir. 21-70685 10/19/21) Fair Labor Standards Act/Disclosure of Informants 
District Court did not clearly err by requiring Secretary of Labor to disclose the identities of informant witnesses and provide their unredacted witness statements before summary judgment motions were due.

Patterson v. Superior Court (CA2/7 B312411 10/18/21)  FEHA/Prevailing Defendant’s Attorney Fees 
Because a fee-shifting clause directed to a motion to compel arbitration risks chilling an employee’s access to court in a FEHA case, a prevailing defendant may recover attorney fees for a successful motion to compel only if it demonstrates the plaintiff’s opposition was groundless. Case remanded for trial court to reconsider defendant’s attorney fees motion.

Williams v. RGIS, LLC (CA3  C091253 10/18/21) PAGA/FAA Preemption 
Joining all other California Courts of Appeal that have addressed the issue, the Third District Court of Appeal held that the U.S. Supreme Court’s decision in Epic Systems Corp. v. Lewis did not abrogate the California Supreme Court’s holding in Iskanian v. CLS Transportation Los Angeles LLC that individual employees cannot contractually waive their right to bring a PAGA representative action.

SEIU-USWW v. Preferred Building Services, Inc. (CA1/5 A159790 10/15/21) Successor Contractor/Retaining Employees 
Successor janitorial contractor violated the Displaced Janitor Opportunity Act (Lab. Code, §§ 1060-1065) by failing to hire janitors who were employed by its predecessor at the time the predecessor’s contract expired. An attorney fee multiplier of 1.4 was appropriate where the facts were largely undisputed and the case turned primarily on interpretation of statutes in the absence of binding precedent.

Morales v. Factor Surfaces LLC (CA2/4 B306652, filed 9/22/21, ord. pub. 10/14/21) Wage & Hour/Regular Rate of Pay 
The proper method for calculating the “regular rate of pay” for commission workers is to divide the total commission payments for the week by the actual number of hours worked during the week, including overtime hours. Here, the employer failed to provide records demonstrating the portion of each weekly paycheck attributable to commissions (if any) and the actual number of hours worked by plaintiff each week, and failed to propose any manner in which the court could accurately estimate the commission payments. The trial court thus did not err by dividing plaintiff’s weekly paychecks by 40 to determine his regular rate of pay.

Carrasco v. State Personnel Bd. (CA4/2 E072892 10/8/21) Probation Rejection/State Personnel Board 
Government Code section 19175—the statute that governs the State Personnel Board’s review of the decision to reject a probationer—does not mandate reinstatement if less than all the reasons given for the rejection are upheld. The SPB was not required to reinstate plaintiff because two of the reasons for plaintiff’s rejection on probation were supported by substantial evidence.

ASJA v. Bonta (9th Cir. 20-55734 10/6/21) ABC Test Exemption/First Amendment/Freelance Writers & Photographers 
Labor Code section 2778 provides occupational exemptions from application of the ABC test to determine independent contractor status. Granting a narrower exemption for freelance writers and photographers than for other professionals does not violate the First Amendment or the Equal Protection Clause.

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