Labor and Employment Law

Newly-Published Labor and Employment Law Cases

Internat. Union of Operating Engineers, Local 39 v. Macy’s, Inc. (CA2/4 A161959 (related case A163029 9/30/22) Labor Picketing/anti-SLAPP 
Under Labor Code section 1138, no labor organization involved in a labor dispute may be held liable for the unlawful acts of individual officers, members, or agents, “except upon clear proof of actual participation in, or actual authorization of those acts.” The trial court improperly denied a union’s anti-SLAPP motion because the union’s picketing conduct was protected activity and the employer failed to proffer evidence that would clearly prove the union participated in or authorized various unlawful actions by picketers.

Miller v. Roseville Lodge No. 1293 (CA3 C090751, filed 9/2/22, ord pub. 9/28/22) Privette Doctrine 
Under the Privette doctrine, a strong presumption exists that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. While installing an automatic teller machine, the contractor’s employee fell from a scaffold owned by the hiring entity. Summary judgment affirmed where the employee failed to raise a triable issue of material fact as to whether the hiring entity retained control over how the work was performed or failed to warn him of a concealed hazardous condition.

Espinoza v. Super. Ct. (CA2/1 B314914 9/27/22) Untimely Payment of Arbitration Fees 
The trial court granted defendant’s motion to stay litigation and compel the parties to proceed in arbitration. When defendant failed to pay its arbitration fees by the deadline within 30 days of the due date for payment, as required by Code of Civil Procedure section 1281.97, subdivision (a)(1), Espinoza moved the trial court to lift the stay of litigation and allow her to proceed in court. The appellate court reversed denial of Espinoza’s motion, finding that although the delay in payment was inadvertent, brief, and did not prejudice plaintiff, the Legislature intended courts to apply the statute’s payment deadline strictly and thus a substantial compliance defense is not available.

Rodriguez v. Parivar, Inc. (CA1/4 A158939 9/26/22) Overtime | Special Verdict Question }
In jury trial for unpaid overtime wages, the special verdict instruction whether “Ms. Rodriguez performed exempt duties more than half of the time” was prejudicial error because it effectively barred Parivar from proving its executive exemption defense by allowing the jury to find liability without addressing the issue of Parivar’s realistic expectations for how Rodriguez should have allocated her time.

L.A. College Faculty Guild etc. v. L.A. Community College Dist. (CA2/8 B313085 9/21/22) Arbitration | CBA 
The court had authority to decide whether the Guild’s claims were subject to arbitration because the collective bargaining agreement did not delegate the issue of arbitrability to the arbitrator, nor did the evidence establish a past practice of the parties delegating arbitrability to the arbitrator. Because a district’s decision to cancel courses is not subject to collective bargaining under the Educational Employment Relations Act, it is not an arbitrable issue. Nor did the Guild show any arbitrable issues under certain provisions of the CBA.

Gavriiloglou v. Prime Healthcare Management (CA4/2 E076832, filed 8/26/22, pub. ord. 9/20/22) PAGA/Arbitration 
After Gavriiloglou lost in arbitration on her individual Labor Code claims, the trial court dismissed her representative PAGA claims based on issue preclusion. The court of appeal reversed, concluding that because a representative PAGA action asserts the state’s rights, not the individual’s, Gavriiloglou was still an “aggrieved employee” under Labor Code section 2699(a) despite her loss in arbitration.

Ochoa v. Public Consulting Group (9th Cir. 19-35870 9/19/22) Section 1983, 1st & 14th Amendments 
Ochoa is a public employee represented by SEIU. On two occasions, union dues were erroneously deducted from her paycheck. The risk of future unauthorized dues deductions was sufficient to grant Ochoa Article III standing. Even though the defendants were state actors for purposes of 42 U.S.C. § 1983, Ochoa failed to state a Fourteenth Amendment due process claim because the defendants did not intend to deprive Ochoa of her liberty interest in not paying dues.

Wright v. SEIU Local 503 (9th Cir. 20-35878 9/19/22) Section 1983 Failure to Allege State Action 
Wright, a retired Oregon state employee represented by SEIU during her employment, sought an injunction and damages arising out of her payment of union dues while employed. The court held it lacked jurisdiction over Wright’s prospective claims because her fear of further dues deductions should she return to state employment was too speculative for Article III standing. The court held Wright’s claim for damages was not cognizable under 42 U.S.C. § 1983 because SEIU was not a state actor under any theory.

Malloy v. Superior Court (CA2/7 B318588 9/19/22) FEHA/Remote Work and Venue 
Fair Employment and Housing Act section 12965, subdivision (c)(3), authorizes an aggrieved party to file a FEHA action in the county in which the alleged unlawful employment practice was committed or in the county in which the individual would have worked but for the unlawful practice. Venue was proper in Los Angeles County where Malloy worked remotely at the time of the alleged FEHA violations, even though her employer’s office was located in Orange County.

Kaur v. Foster Poultry Farms LLC (CA5 F081786 9/14/22) WCAB | No Res Judicata or Collateral Estoppel on FEHA Action
The trial court granted summary judgment in favor of Foster Farms based on collateral estoppel arising out of a Workers Compensation Appeals Board decision concluding, inter alia, that Foster Farms did not discriminate against Kaur in violation of Labor Code section 132a. The court of appeal reversed, concluding that the issues adjudicated in the WCAB proceeding were not dispositive of Kaur’s claims for disability discrimination, failure to provide reasonable accommodation, and failure to engage in an interactive process under the Fair Employment and Housing Act.

Arega v. Bay Area Rapid Transit District (CA1/3 A163266 9/14/22) FEHA Race Discrimination
Plaintiffs alleged they were denied promotions to foreworker positions because of their race. The court affirmed summary judgment for BART because plaintiffs failed to produce evidence establishing a triable issue of material fact. Much of the evidence upon which plaintiffs relied was not in the record, and other evidence in the record did not support their claims.

Bonni v. St. Joseph Health System (CA4/3 G052367A, filed 8/23/22, pub. ord. 9/14/22) Whistleblower Retaliation | Health & Saf. Code section 1278.5 | Anti-SLAPP 
In response to Bonni’s whistleblower retaliation claims under Health & Safety Code section 1278.5, Defendants filed an anti-SLAPP motion under Code of Civil Procedure section 425.16. On remand from the California Supreme Court, the court found that Bonni could not show a likelihood of prevailing on the eight claims arising from protected activity because they all were precluded by the litigation privilege.

Betancourt v. OS Restaurant Services, LLC (CA2/8 B293625A, filed 8/25/22, ord. pub. 9/12/22) Wage & Hour 
Labor Code section 218.5(a) mandates an award of reasonable attorney fees to the prevailing party in any action brought for the nonpayment of wages, if any party requests attorney fees at the initiation of the action. Here, the trial court awarded plaintiff $280,000 in attorney fees under section 218.5, and the employer appealed the award. On remand from the California Supreme Court to consider the attorney fees award in light of Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93, which held that premium pay for missed breaks are wages that must be reported on statutorily required wage statements during employment and paid within statutory deadlines when an employee leaves the job, the court affirmed the attorney fees award.

McCullar v. SMC Contracting, Inc. (CA3 C093295, filed 8/29/22, ord. pub. 9/13/22) Privette Doctrine 
Under the Privette doctrine, a strong presumption exists that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. During installation of a fire sprinkler system, the contractor’s employee, McCullar, slipped on ice on the floor and suffered injuries. The court affirmed summary judgment for the hiring entity because while it retained some control over the contractor’s work, that control did not affirmatively contribute to McCullar’s injuries.

Johar v. California Unemployment Insurance Appeals Board (CA1/4 A162563 9/13/22) EDD | Voluntary Quit or Layoff 
Under Unemployment Insurance Code section 1256, an employee who “left his or her most recent work voluntarily without good cause” is disqualified from receipt of unemployment benefits. An employee who leaves work for good cause is entitled to a presumption that she has not voluntarily quit. The presumption may be overcome, but only upon evidence showing the employee positively repudiated her obligation to return in clear terms. Because the employer did not rebut the presumption that Johar’s supervisor-approved, one-week absence to care for a terminally ill family member was for good cause, the decision denying her unemployment benefits was reversed.

Rodgers v. State Personnel Board (CA4/2 E075803 9/9/22) State Personnel Board/Due Process 
Rodgers, a correctional sergeant, received a notice of adverse action (NOAA) alleging that he neglected his duties by refusing to perform a contraband inspection, angrily confronted officers who reported his refusal to another sergeant, and directed officers to falsify records to show the inspection had been performed; the NOAA proposed discipline of a 10% salary reduction for two years. After an evidentiary hearing, a State Personnel Board administrative law judge sustained only the confrontation allegation but did not reduce the penalty; the SPB adopted the decision without modification. The court set aside SPB’s decision on due process grounds because the NOAA did not give Rodgers sufficient notice that his salary could be reduced 10% for two years based solely on the alleged angry confrontation

MacIntyre v. Carroll College (9th Cir. 21-35642 9/8/22) Employment Discrimination/Title IX 
Refusal to renew an employment contract may be an adverse employment action for a Title IX retaliation claim because it could deter a reasonable employee from reporting discrimination. Summary judgment for defendant reversed.

County of San Joaquin v. Public Employment Relations Bd. (CA3 C094069 9/7/22) Strike/Accrued Leave and Return to Work 
The court affirmed the Public Employment Relations Board’s findings that the county discriminated against striking nurses by prohibiting them from returning to work for three days after the two-day strike ended and that the county’s contractual requirement to pay strike replacement nurses for five days did not justify the prohibition. The court affirmed PERB’s order that the county allow striking nurses to use accrued leave for the time they were prohibited from returning to work and for similar absences in the future.

Aguilar v. Walgreen (9th Cir. 21-16563, 21-16627 9/7/22) Wage & Hour Jurisdiction/Collateral Order Doctrine 
A law firm representing purported Walgreens store managers in a class action wage & hour lawsuit sent a letter to putative class members in a substantially similar action urging them to opt out of the proposed settlement in that case. The district court issued an order allowing class counsel in the second action to send Corrective Notice to class members; the order also invalidated all opt-outs resulting from the letter. The district court issued a second order granting Walgreen’s motion to modify the scope of the Corrective Notice to be sent to all opt-outs resulting from the letter. The court dismissed the appeal by class representatives in the first action for lack of jurisdiction because neither order was appealable under the collateral order doctrine, nor was mandamus appropriate.

Oswald v. Murray Plumbing & Heating Corp. (CA2/2 B312736 9/2/22) CBA/PAGA 
Labor Code section 2699.6(a) exempts construction workers from the Private Attorneys General Act if a collective bargaining agreement covers their wages, hours and working conditions and (1) has a grievance and arbitration procedure to redress Labor Code violations; (2) clearly waives PAGA; and (3) authorizes the arbitrator to award all remedies available under the Labor Code. Because the applicable CBA met these requirements, the trial court erred by denying the employer’s motion to compel arbitration of plaintiff’s PAGA claims.

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