Newly-Published Labor and Employment Law Cases

Davis v. Shiekh Shoes, LLC (CA1/2 A161961 10/31/22) Arbitration 
Applying Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708, the court declined to require a showing of prejudice to establish waiver of the right to arbitrate. The court found waiver based on the employer’s “nearly one-and-a-half-year delay in moving to compel arbitration, request for trial, active participation in discovery, acquiescence to the trial and discovery schedule, and court appearances.”
https://www.courts.ca.gov/opinions/documents/A161961.PDF

GCIU-Employer Retirement Fund, et al. v. MNG Enterprises, Inc. (9^th Cir. 21-55864 10/28/22) Multiemployer Pension Plan Amendments Act 
Under the Multiemployer Pension Plan Amendments Act, an employer that withdraws from a pension plan must pay its proportionate share of the difference between the present value of the vested benefits and the current value of the plan’s assets. The court held the plan could not assess MNG for two prior partial withdrawals following its complete withdrawal from the plan but remanded for the district court to consider whether MNG had successor liability for the prior withdrawals.
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/28/21-55864.pdf

Trujillo v. City of L.A. (CA2/2 B314042 10/27/22) 998 Offer Expiration [civil procedure case applicable to employment litigation] 
A settlement offer pursuant to Code of Civil Procedure section 998 automatically expires when a trial court orally grants the offeror’s summary judgment motion.
https://www.courts.ca.gov/opinions/documents/B314042.PDF

Cadena, et al. v. Customer Connexx LLC, et al. (9^th Cir. 21-16522 10/24/22) Fair Labor Standards Act 
Court held that time call center workers spent turning on and booting up their computers, which was necessary for them to receive calls, was integral and indispensable to the workers’ duties and thus compensable principal activity under the Fair Labor Standards Act. The court reversed the district court’s summary judgment on the FLSA claim and remanded to the district court for consideration of whether time spent shutting down computers was compensable, whether the time spent booting up and down the computers was not compensable under the de minimis doctrine, and whether Connexx had no knowledge of the alleged overtime such that it was not in violation of the FLSA’s overtime requirements. 
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/24/21-16522.pdf

Camp v. Home Depot U.S.A., Inc. (CA6 H049033 10/24/22) Unpaid Wages | Rounding 
Court reversed summary judgment because Home Depot, in relying on its quarter-hour rounding policy, did not meet its burden to show that there was no triable issue of material fact regarding plaintiff Camp’s claims for unpaid wages, where Home Depot could and did track the exact time in minutes that an employee worked each shift and those records showed that Camp was not paid for all the time he worked.
https://www.courts.ca.gov/opinions/documents/H049033.PDF

Kilgore v. Spectro Professional Services, LLC (9^th Cir. 21-15897 10/20/22) Whistleblower Retaliation | Wrongful Termination 
The court reversed summary judgment on Kilgore’s whistleblower claim under Labor Code section 1102.5(b). Although the California Supreme Court has not addressed the issue, the court held that plaintiff’s disclosures to his supervisor—as a “person with authority over the employee”—provided an independent ground for asserting a whistleblower retaliation claim under section 1102.5(b). The court also concluded that reporting alleging wrongdoing to the Army officer in charge of the project was a protected disclosure to a government agency, and that Kilgore raised genuine issues of material fact as to what illegal conduct he disclosed, whether he had reasonable cause to believe that federal law was being violated, and whether his whistleblowing activity was a contributing factor in his termination of employment.
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/20/21-15897.pdf

Little v. Com. on Teacher Credentialing (CA3 C092001 10/19/22) CA Commission on Teacher Credentialing | Investigations 
Education Code section 44242.5 sets forth the circumstances that trigger the jurisdiction of the  Commission on Teacher Credentialing’s Committee of Credentials to conduct an initial review of alleged grounds for suspension or revocation of a teaching credential. Section 44242.5 does not allow the Committee to contact a private individual for information about a credential holder’s alleged misconduct before the statutory jurisdictional conditions have been met.
https://www.courts.ca.gov/opinions/documents/C092001.PDF

Allen v. Staples, Inc. (CA2/5 B311426, filed 9/20/22, ord pub. 10/18/22) Equal Pay Act 
Court reversed summary judgment on Allen’s claim under the Equal Pay Act, Labor Code section 1197.5, because evidence that she was paid less in salary than a single male comparator was sufficient to establish a prima facie EPA violation and Staples failed to show there was no triable issue of material fact as to any exception to that claim. Summary judgment affirmed on all other claims.
https://www.courts.ca.gov/opinions/documents/B311426.PDF

Mobilize the Message LLC, et al. v. Rob Bonta (9^th Cir. 21-55855 10/11/22) ABC Test | First Amendment 
District court properly denied injunction seeking to bar application of Labor Code section 2775(b)(1)’s “ABC test” to plaintiff’s political signature gatherers. Although classifying gatherers as employees might lead to plaintiff not hiring as many gatherers, that indirect impact on plaintiff’s speech does not violate the First Amendment because it does not target any particular type of speech. Nor does Labor Code section 2783, which exempts direct sales salespersons, newspaper distributors, and newspaper carriers from the ABC test, constitute content-based discrimination in violation of the First Amendment because the exemptions depend on the workers’ occupation, not the communicative content of their speech.
https://cdn.ca9.uscourts.gov/datastore/opinions/2022/10/11/21-55855.pdf