Labor and Employment Law

Newly-Published Labor and Employment Law Cases

Perez v. City and County of San Francisco (CA1/5 A161279 3/1/22) Respondeat Superior 
A police officer left his service firearm in his personal vehicle after work. The gun was stolen from the vehicle and shortly thereafter used to kill plaintiff’s son. Summary judgment for the city on plaintiff’s wrongful death claim reversed because, under the doctrine of respondeat superior, a police officer’s negligent handling of a firearm is a foreseeable result of the enterprise of law enforcement.

LGCY Power v. Super. Ct. (CA5 F082353 3/1/22) Labor Code section 925 
Labor Code section 925 provides that employers cannot force an employee who resides and works primarily in California to agree, as a condition of employment, to: (1) litigate a claim arising in California in a forum outside of California; or (2) waive the employee’s right to the substantive protection of California law with respect to a controversy arising in California. Section 925 provides an exception to California’s compulsory cross-complaint statute (Code Civ. Proc., § 426.30) such that an employee who comes within section 925’s purview may file a complaint in California alleging claims that are related to the causes of action their employer has filed against them in a pending action in a sister state. Further, the Full Faith and Credit Clause does not require California to extend credit to and apply the sister state’s compulsory cross-complaint statute.

Mendoza v. Trans Valley Transport (CA6 H044372, filed 2/4/22, ord. pub. 3/1/22) Arbitration 
The employer forfeited its argument that an arbitrator, not the court, must decide the validity of the parties’ alleged arbitration agreement by (1) waiting until its trial court reply brief to raise its delegation clause argument, and (2) fully litigating the validity issue in the trial and appellate courts. There was no express agreement to arbitrate because while Mendoza signed a form acknowledging receipt of the employee handbook, the form did not notify him either that the handbook contained an arbitration clause or that his acceptance of the handbook constituted a waiver of his right to a judicial forum in which to resolve his wage and hour claims. Nor was an implied-in-fact agreement to arbitrate created by Mendoza’s acceptance of the handbook and subsequent performance of work for the employer.

White v. Smule, Inc. (CA1/4 A161858, filed 1/27/22, pub. ord. 2/18/22) Employment Offer/False Representation 
Labor Code section 970 prohibits employers from inducing employees to relocate and accept employment by way of knowingly false representations regarding the kind, character, or existence of work, or the length of time such work will last. Section 970 requires the plaintiff to establish, among other elements, justifiable reliance and a knowingly false representation. White’s undisputed at-will status negated justifiable reliance on Smule’s misrepresentations as to the length of employment but not reliance on misrepresentations regarding the role White would fill at Smule.

LaFace v. Ralphs Grocery Co. (CA2/4 B305494 2/18/22) PAGA/Seating for Cashiers
A plaintiff does not have a right to a jury trial on claims for civil penalties under the Labor Code Private Attorneys General Act of 2004. Industrial Welfare Commission Wage Order 7-2000, section 14(B) requires an employer to provide seating to employees “[w]hen employees are not engaged in the active duties of their employment and the nature of the work requires standing.” Where grocery store employer had reasonable expectation that cashiers would perform other duties when not checking out customers, it was not required to provide seating per section 14(B).

Ramirez v. Charter Communications, Inc. (CA2/4 B309408 2/18/22) Arbitration/Unconscionability 
An arbitration agreement was unconscionable because it reduced the statute of limitations for Fair Employment and Housing Act claims to one year and awarded attorney fees to the prevailing party on a motion to compel arbitration. The court disagreed with Patterson v. Superior Court (2021) 70 Cal.App.5th 473, where the court found the same attorney fees provision enforceable based on implied incorporation of FEHA’s asymmetrical attorney fee standard.

Kirk v. Ratner (CA2/7 B309880 2/10/22) Violation of Arbitration Agreement 
An arbitrator’s issuance of a preliminary injunction is not an “award” within the meaning of Code of Civil Procedure section 1283.4 and thus a trial court lacks jurisdiction to consider a petition to vacate such interim relief. In turn, a trial court’s ruling on a petition to vacate a nonfinal/interim arbitration award is not an appealable order.

Joseph v. City of Atwater (CA5 F080711 2/9/22) POBRA 
The Public Safety Officers Procedural Bill of Rights Act (POBRA) provides that no chief of police may be removed from office without being provided written notice of the reasons “and an opportunity for administrative appeal.” Because plaintiff’s employment contract as chief allowed him to return to his prior position as a lieutenant, and the lieutenant position was not at-will, before releasing plaintiff from employment the City was required by POBRA to provide him with the type of administrative appeal afforded public safety officers who are terminable only for cause, which includes a full evidentiary hearing before a neutral fact finder.

Dept. of Corrections & Rehabilitation v. State Personnel Bd. (CA3 C084698 2/7/22) FEHA Discrimination/SPB Writ
Applying abuse of discretion/substantial evidence standard of review, the court affirmed the State Personnel Board’s finding that the Department failed to prove it had nondiscriminatory reasons for not interviewing Dr. Mabry-Height for physician/surgeon positions and revoking her credential as a registry physician. Because the Department failed to meet its burden under step two of the McDonnell Douglas burden-shifting framework, Dr. Mabry-Height did not need to prove that her race, age, or gender were a substantial motivating factor in the Department’s decisions.

Hutcheson v. Superior Court (CA1/2 A159861 2/7/22) PAGA/Relation Back 
Under the doctrine of relation back, a court deems an amended complaint to have been filed at the time of an earlier complaint. In a case asserting claims under the Labor Code Private Attorneys General Act (PAGA), an amended complaint substituting a new representative plaintiff may relate back to the original complaint if “the claims in the amended PAGA complaint . . . rest on the same general set of facts, involve the same injury, and refer to the same instrumentality as the claims in the original complaint.”

Barke v. Banks (9th Cir. 20-56075 per curiam 2/7/22) Public Sector Employment Union Dues/Pre-Enforcement Statutory Challenge 
Government Code section 3550 prohibits public employers from deterring or discouraging public employees from joining or supporting a union. Plaintiffs, who are elected members of governing bodies of local agencies, lacked standing to bring a pre-enforcement First Amendment challenge to section 3550 because the statute cannot be enforced against them as individuals. Rather, their conduct may only violate section 3550 when they act as an agent of the local agency.

Western States Office Fund v. WPAS (9th Cir. 20-35545 1/31/22) ERISA 
When an employer withdraws from a multiemployer pension plan, it is required to pay for its share of unfunded benefits. That share may be paid in annual installments, calculated in part based on the “highest contribution rate” the employer was required to pay into the plan during a specified time period. For purposes of determining an employer’s annual withdrawal payment, a surcharge paid by the employer when a plan is in critical status is not included in the calculation of the “highest contribution rate.”

Lawson v. PPG Architectural Finishes, Inc. (SC S266001 1/27/22) Labor Code section 1102.6 Retaliation 
Labor Code section 1102.6, and not McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims. Under that framework, once an employee-whistleblower establishes by a preponderance of the evidence that retaliation was a contributing factor in the employee’s termination, demotion, or other adverse action, the employer then bears the burden of demonstrating by clear and convincing evidence that it would have taken the same action “for legitimate, independent reasons.”

Vines v. O’Reilly Auto Enterprises, LLC (CA2/7 B301000 1/21/22) FEHA/Attorney Fees 
Trial court erred in reducing Vines’ requested attorney fees award by 75% on the ground he succeeded on his retaliation claim but not on his discrimination and harassment claims. To prove his retaliation claim, Vines had to put on evidence of the facts underlying the alleged discrimination and harassment to establish the reasonableness of his belief that the conduct was unlawful. The trial court thus erred by finding the discrimination and harassment claims were not sufficiently related to or factually intertwined with Vines’ successful retaliation-based claims.

Espinoza v. Hepta Run, Inc. (CA2/7 B306292 1/19/22) PAGA/Preemption 
Short-haul truck driver’s meal and rest break claims were preempted by federal hours of service regulations, even though not all of the regulations applied to him. Sole owner and president of trucking companies was personally liable for damages under Labor Code section 558.1 because he had approved driver payment policy that violated various Labor Code provisions.

ICTSI Oregon v. ILWU (9th Cir. 1/18/22) Labor Law Interlocutory Appeal/Jurisdiction
A Court of Appeals may assert jurisdiction over an interlocutory appeal under 28 USC §1292(b) when the district court determines that the order rests on a controlling question of law on which there are reasonable differences of opinion and immediate resolution may materially advance the termination of the litigation. Court of Appeal lacked jurisdiction over interlocutory appeal of district court’s order denying motion for new trial because the issue of whether ICTSI became a primary employer under the circumstances of the case was a question of fact.

Western Growers Assn. v. Occupational Safety & Health Stds. Bd. (CA1/1 A162343, filed 12/21/21, pub. ord. 1/12/22) Cal/OSHA ETS COVID-19 
Under the Administrative Procedure Act, courts apply the deferential substantial evidence standard of review to an administrative agency’s determination that emergency regulations are warranted. Trial court properly denied preliminary injunction against CalOSHA’s emergency temporary standards (ETS) for COVID-19 prevention because plaintiffs failed to show a likelihood of success on the merits and the balancing of harms weighed in favor of CalOSHA.

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