Newly-Published Labor and Employment Law Cases

Nabors Corporate Services, Inc. v. City of Long Beach (CA2/5 B328026 1/31/25) Indemnity | Labor Code sections 1781 and 1784
Nabors performed oil well plug and abandonment work for the City. Nabors’s employees filed a class action lawsuit alleging they were entitled to higher wages under the prevailing wage laws because they performed public work for the City. Nabors successfully petitioned for arbitration of the employees’ individual claims. All of the employees prevailed in their arbitrations. Nabors then sued the City for indemnification under Labor Code sections 1781 and 1784. The court reversed the trial court’s dismissal of the section 1781 claim, finding that confirmation of an arbitration award by a court is sufficient to satisfy the statutory requirement that a court find the work to be public work. The affirmed dismissal of the section 1784 claim, finding the section did not operate retroactively to the dates Nabors performed the work for the City.

Colon-Perez v. Security Industry Specialists (CA1/1 A168297 1/29/25) Arbitration
After SIS petitioned to compel arbitration of Colon-Perez’s employment claims, the parties stipulated to arbitration. SIS then failed to pay an invoice within the 30-day period required by Code of Civil Procedure section 1281.98. The trial court granted Colon-Perez’s motion to proceed with her claims in court. The appellate court held that section 1281.98 is not preempted by the Federal Arbitration Act and rejected SIS’s other arguments challenging the trial court’s order.

Hearn v. PG&E (CA1/3 A167742M, filed 1/24/25, mod. 1/28/25) Defamation | Wrongful Termination
Hearn sued his former employer, Pacific Gas & Electric Company (PG&E) for retaliation and defamation. The jury found PG&E liable for defamation but rejected Hearn’s retaliation claim. The appellate court reversed the trial court’s order denying PG&E’s motion for judgment notwithstanding the verdict, concluding that because Hearn’s defamation claim was premised on the same conduct that gave rise to his termination and the damages sought were solely related to his loss of employment, his defamation claim was “a claim for wrongful termination by another name.”

Associated General Contractors etc. v. Dept. of Industrial Relations (CA3 C098009 1/22/25) Prevailing Wage for Apprentices on Public Works
Labor Code section 1777.5 requires public works contractors who employ workers in “any apprenticeable craft or trade” to also employ a certain ratio of apprentices to experienced “journeymen” workers. Regulations issued by the California Apprenticeship Council provide that, to qualify for the apprentice wage rate, apprentices must be performing work processes included in the apprentice’s approved training program. (Cal. Code Regs., tit. 8 (8 CCR), §§ 205, subds. (c), (p), (q), 230.1, subd. (c).) The court held that the regulations are within the scope of the Council’s rulemaking authority and consistent with the governing law.

Int’l Union of Operating Engineers v. NLRB (9th Cir. 23-124 1/21/25) NLRA
During negotiations over a successor collective bargaining agreement, Union members voted to reject Macy’s final offer and began a strike. After three months, the Union ended its strike and unconditionally offered to return to work. Macy’s locked out the Union members who reported for work. The National Labor Relations Board found that Macy’s violated the National Labor Relations Act by locking out the employees. The court found substantial evidence supported the NLRB’s conclusion that Union employees were not clearly and fully informed of the conditions they needed to satisfy to be reinstated, and thus the lockout was not justified. The court also held the NLRB did not abuse its discretion by declining to award the extraordinary remedies requested by the Union or by ordering make-whole relief pursuant to Thryv, Inc. (2022) 372 NLRB No. 22.

Villalva v. Bombardier Mass Transit Corp. (CA4/1 D082372 1/21/25) Labor Commissioner Appeal | Attorneys’ Fees & Costs
Labor Code section 98.2 requires a party who is unsuccessful in a superior court action challenging the labor commissioner’s decision in a Berman hearing to pay the other party’s attorney fees and costs. Plaintiffs were unsuccessful before the labor commissioner but prevailed before the superior court, which awarded them more than $140,000 in unpaid wages and penalties, and $200,000 in attorney fees and costs. The appellate court rejected Bombardier’s argument that Labor Code section 98.2 is the exclusive statute authorizing an award of attorney fees in a superior court appeal from the labor commissioner’s Berman order. The court found nothing in section 98.2 suggesting the Legislature intended for that section to override the general entitlement to an award of attorney fees and costs for prevailing plaintiffs in superior court actions for unpaid wages.

E.M.D. Sales, Inc. v. Carrera (US 23-217 1/15/25) FLSA Exemption | Standard of Proof
The Fair Labor Standards Act (FLSA) guarantees a federal minimum wage for covered workers (29 U.S.C. §206(a)(1)) and requires overtime pay for those working more than 40 hours per week (§207(a)(1)). The FLSA places the burden on the employer to show that an exemption applies. The court held that the preponderance-of-the-evidence standard applies when an employer seeks to demonstrate that an employee is exempt from the minimum-wage and overtime-pay provisions of the FLSA.

Pollock v. Kelso (CA2/8 B320574 1/8/25) FEHA Attorney Fees | Prevailing Party
In civil actions brought under the Fair Employment and Housing Act, the trial court, in its discretion, may award a reasonable attorney fee to the prevailing party. (Gov. Code, § 12965, subd. (c)(6).) The parties’ settlement agreement designated Pollock as the prevailing party. The trial court awarded Pollock $493,577.10 in attorney fees. The appellate court affirmed the award, finding substantial evidence supported the rate and number of hours used by the court, and that a 1.8 multiplier was appropriate under the circumstances.

Collins et al. v. Diamond Generating Corp. (CA4/3 G062752, filed 12/11/24, pub. 1/8/25) Privette Doctrine
The Privette doctrine provides that the hirer of an independent contractor presumptively delegates responsibility for workplace safety to the contractor and thus is not liable for on-the-job injuries to the contractor’s workers, unless (1) the hirer withholds critical safety information, or (2) the hirer retains partial control over part of the work and negligently exercises that retained control in a way that affirmatively contributes to the worker’s injury. The trial court prejudicially erred by refusing to instruct the jury on the Privette doctrine where Diamond Generating Corp. was the partial owner of the power plant where the independent contractor’s employee died when a pressurized fuel tank exploded.