Labor and Employment Law

Newly-Published Labor and Employment Law Cases

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Lozano v. City of L.A. (CA2/3 B307412 1/7/22) POBRA 
Termination of police officers’ employment for failure to respond to call for assistance during robbery affirmed. The city did not violate the Public Safety Officers Procedural Bills of Rights Act by using an unintentional recording of the officers’ conversation in their disciplinary proceedings because neither Penal Code section 632 nor the city charter prohibits use of unintentionally recorded conversations. The officers’ questioning by their sergeant immediately after the incident was not an interrogation under POBRA, but rather a routine conversation between a supervisor and his direct reports.

Cirrincione v. American Scissor Lift (CA3 C092519, filed 12/6/21, pub. ord. 1/4/22) Wage & Hour/Class Certification 
Denial of class certification affirmed. Plaintiff failed to show the employer had a written policy or uniform practice of rounding employees’ work time, or that the harm caused by the alleged rounding process could be established efficiently through resort to common proof for all class members. Similarly, plaintiff failed to show the employer had a written policy or uniform practice of denying meal and rest break premiums that would allow common proof for all class members.

Ahlstrom v. DHI Mortgage Co. (9th Cir. 20-15114 12/29/21) Arbitration/Formation
Parties may not delegate the issue of the formation of an arbitration agreement to an arbitrator. No valid arbitration agreement was formed between employee and the parent company of his employer because the employee had no employment relationship with the parent company.

Garcia v. Expert Staffing West (CA2/6 B307371 12/29/21) Arbitration between Applicants and Former Employers 
An arbitration clause between a job applicant and her prospective employer does not apply to disputes between the applicant and her former employers based on the existence of a business relationship between the prospective employer and the applicant’s past employers.

Carmona v. Dominos Pizza (9th Cir. 21-55009 12/23/21) Arbitration/Pizza Delivery Drivers/FAA Exemption 
The Federal Arbitration Act does not apply to employment contracts of employees who are part of a “class of workers engaged in foreign or interstate commerce.” Drivers who deliver goods from Domino’s’ supply center to individual franchisees are engaged in interstate commerce for purposes of the FAA exemption because Domino’s is directly involved in the procurement and delivery of interstate goods, is involved in the process from the beginning to the ultimate delivery of the goods to their destinations, and its business includes not just the selling of goods, but also the delivery of those goods.

Bichai v. DaVita, Inc. (CA5 F079815 12/20/21) Peer Review/Medical Staff 
Hearing officer’s decision affirming clinic’s denial of staff privileges vacated because medical staff bylaws’ requirement that physician prove denial of staff privileges “lacks any substantial factual basis, or is otherwise arbitrary and capricious” was inconsistent with the preponderance of the evidence standard required by Business and Professions Code section 809.3, subdivision (b)(2).

Woods v. American Film Institute (CA2/2 B307220 12/17/21) Unpaid Labor/Class Certification 
Class certification properly denied where the trier of fact would need to decide whether each class member expected to be paid or was in fact a volunteer, and thus individual issues would preclude common issues from predominating.

De Leon v. Pinnacle Property Management Services, LLC (CA4/3 G059801, filed 11/17/21, pub. ord. 12/8/21) Arbitration
Arbitration agreement was procedurally unconscionable because De Leon was required to sign it as a precondition to employment, and substantively unconscionable because the agreement limited discovery and shortened the statute of limitations to one year on all claims.

Santos v. El Guapos Tacos, LLC (CA6 H046470 11/30/21) PAGA Notice 
Plaintiffs’ notice to the Labor & Workforce Development Agency and their employer of alleged Labor Code violations satisfied Labor Code section 2699.3 because, although the notice did not reference other aggrieved employees, it provided fair notice of representative claims for meal break, rest break, and overtime violations.

Gunther v. Alaska Airlines, Inc. (CA4/1 D076762 partial pub. 12/1/21) PAGA Penalties 
Application of Labor Code section 226 to flight attendants is not preempted by federal law and the flight attendants in this case were entitled to section 226(a)-compliant wage statements. Award of heightened penalties under section 226.3 reversed because the plain language of the statute provides that heightened penalties apply only where the employer fails to provide wage statements or fails to keep required records, which was not the situation here.

Gamboa v. Northeast Community Clinic (CA2/7 B304833 11/30/21) Arbitration 
Denial of petition to compel arbitration affirmed. Gamboa asserted in a declaration that she had never seen the purported arbitration agreement attached to the petition and would not have signed it. In response, Northeast failed to produce admissible evidence establishing that Gamboa signed the agreement.

Moniz v. Adecco USA (CA1/4 A159410 11/30/21) PAGA Settlement
Approval of settlement of PAGA claims reversed where the record revealed no basis for allocating shares of civil penalties to one group of claimants that was 15 times greater than the shares allocated to another group of claimants.

Fried v. Wynn Law Vegas (9th Cir. 20-15710 11/18/21) Title VII/Hostile Work Environment 
Summary judgment on hostile work environment claim reversed. A reasonable factfinder could find a hostile work environment where Fried’s manager failed to take immediate corrective action when a customer sexually propositioned Fried, and where Freid’s co-workers’ comments about the propositioning could have a cumulative effect on Fried’s working conditions.

Wilkin v. Community Hospital of the Monterey Peninsula (CA4/3 G060420, filed 10/26/21, pub. ord. 11/18/21) FEHA and CFRA/Wrongful Termination 
Summary judgment on disability discrimination, unlawful denial of medical leave, retaliation, and wrongful termination claims affirmed. The Hospital produced undisputed evidence showing that Wilkin had violated policies governing the handling of medication and for over a year before her discharge had been regularly counseled for her chronic absenteeism and other issues. Wilkin failed to produce any evidence showing the Hospital’s reasons were fabricated or otherwise pretextual.

South Coast Air Quality Management Dist. v. City of L.A. (CA2/8 B310783 11/4/21) Permissive Intervention by Union 
Trial court properly denied International Longshore and Warehouse Union leave to intervene in an environmental dispute about the Port of Los Angeles. The Union sought intervention to argue against a remedy that would shut down the Port. Because several parties in the case also sought to avoid closure of the Port, the Union’s interest in participation did not outweigh the Air District’s interest in litigating the case without Union involvement.

Martinez-Gonzalez v. Elkhorn Packing (9th Cir. 19-17311 11/3/21) Arbitration 
Court reversed denial of petition to compel arbitration, finding that the circumstances surrounding execution of the arbitration agreement did not constitute a “wrongful act” nor was Martinez-Gonzalez without reasonable alternatives to signing the agreement. The agreement also was not the product of undue influence because Martinez-Gonzalez was not especially vulnerable to pressure and failed to show “extraordinary force” was brought against him to sign the arbitration agreement.

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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