Newly-Published Labor and Employment Law Cases

Freedom Foundation v. Super. Ct. (CA3 C096273, filed 12/5/22, ord. pub. 12/30/22) Public Records Act | Dills Act Collective Bargaining Exemption 
The California Public Records Act exempts from disclosure “[r]ecords of state agencies related to activities governed by [the Ralph C. Dills Act granting collective bargaining rights to state employees] that reveal a state agency’s deliberative processes, impressions, evaluations, opinions, recommendations, meeting minutes, research, work products, theories, or strategy.” (§ 6254, subd. (p)(1).) Under its plain language and applying the canon of ejusdem generis, the exemption is not limited to documents that reveal an agency’s deliberative processes. The California Department of Human Resources was not required to search the State Controller’s database for CPRA-responsive records because, while it may have had a right to access the database, it did not exercise control over the database.

Dodge v. Evergreen School District #114 (9^th Cir. 21-35400 12/29/22) First Amendment 
Dodge engaged in protected First Amendment activity when he wore his Make America Great Again hat to teacher-only trainings. Summary judgement for the school principal reversed because: (1) there were triable issues of fact as to whether the principal’s statement that the next time Dodge wore his MAGA hat they would have a meeting where he would need union representation was an adverse action, and (2) the principal failed to present evidence of actual or tangible disruption to school operations that could outweigh Dodge’s free speech interest. The court affirmed the grant of summary judgment for the school district, finding that the school board’s dismissal of Dodge’s complaint against the principal was not an approval of her conduct or the basis for it.

Parsons v. Estenson Logistics, LLC (CA3 C093489 12/28/22) Wage and Hour Timely Payment 
Labor Code section 204, subdivision (d), provides that wages for employees who are paid weekly are deemed timely if paid “not more than seven calendar days following the close of the payroll period.” If the seventh calendar day falls on a Saturday, the wages may be paid the following Monday, because Code of Civil Procedure section 12a provides that weekends are holidays, and further provides, “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.”

Metro Man IV d/b/a Fountain Bleu Health and Rehabilitation Center, Inc. (NLRB 12/28/22) Exigent Circumstances Exception to Bargaining Obligation
During the initial weeks of the COVID-19 pandemic in April 2020, Fountain Bleu unilaterally instituted a 2% wage increase as an incentive for its staff to report to work and, pursuant to a federal licensing waiver, hired unlicensed certified nursing assistants to perform the same work as its unionized certified nursing assistants. Although the exigent circumstances of the pandemic’s onset excused Fountain Bleu from its obligation to negotiate with its employees’ union prior to making these changes, once the emergency subsided Fountain Bleu was obligated to bargain with the union over both the decisions to make these changes and the changes’ effect on mandatory bargaining subjects.

Espinoza v. Warehouse Demo Services, Inc. (CA1/5 A165820 12/23/22) Outside Salesperson Exemption
The outside salesperson exemption was created because it has historically been difficult for an employer to control or monitor outside salespersons who control their own hours and schedule. Espinoza was not subject to the outside salesperson exemption, even though she worked at a fixed site not owned or leased by her employer, because the employer carefully monitored and controlled her hours and schedule.

Kemp v. Super. Ct. (CA4/3 G061122 12/22/22) Job Background Check | FCRA | CCRAA 
The federal Fair Credit Reporting Act, which allows an agency to report a person’s prior conviction no matter how long ago it occurred, does not preempt California’s Investigative Consumer Reporting Agencies Act, which prohibits reporting a “conviction of a crime that, from the date of disposition, release, or parole, antedate the report by more than seven years.” The phrase “from the date of . . . parole” means the start date of parole, not the end of the parole period.

Bishop v. The Bishop’s School (CA4/1 D079827 12/21/22) Breach of Employment Contract & Defamation | Anti-SLAPP 
The school’s letter terminating a teacher’s employment for inappropriate text messages with a former student was not protected by the Anti-SLAPP statute because it did not further public discourse on the issue of student safety. Similarly, the termination itself was not protected because it did not advance the school’s ability to publicly discuss student safety. The head of school’s statement in the student newspaper about protecting current and former students, however, was protected because his purpose was to communicate the school’s position to the public.

Kern County Hospital Authority (PERB Decision No. 2847-M 12/20/22) Unilateral Change to Grievance Procedure
The Authority made an unlawful unilateral change when it refused to process group or class grievances despite having done so in the past. The Board rejected the Authority’s defenses that it acted consistently with the parties’ memorandum of understanding and that the union was on notice of the Authority’s position on group or class grievances but failed to demand bargaining over the change.

Whitlach v. Premier Valley, Inc. (CA5 F082322 filed 11/18/22, ord. pub. 12/19/22) Real Estate Salesperson | Employee or Independent Contractor 
The applicable test for determining whether a real estate salesperson is an employee or an independent contractor for purposes of the Labor Code’s wage and hour provisions is the test set forth in Unemployment Insurance Code sections 650 and 13004.1, as incorporated in Business and Professions Code section 10032, subdivision (b), which is itself incorporated in Labor Code section 2778, subdivision (c)(1).

Allen v. San Diego Convention Center Corp., Inc. (CA4/1 D080045 12/16/22) Wage and Hour | Class Certification 
Class certification properly denied as to Allen’s Labor Code section 201, 202, and 203 claims because the San Diego Convention Center Corporation is a public entity exempt from application of those Labor Code sections.

Blaser v. Cal. State Teachers’ Retirement System (CA6 H049277 filed 11/21/22, ord. pub. 12/16/22) Teachers’ Pension Overpayments 
Retired teachers could not assert equitable estoppel and laches as bases to stop their pension system from reducing their benefits and recouping past overpayments. Applying equitable estoppel would require the system to miscalculate the teachers’ monthly benefit in contravention of the Education Code. Applying laches would negate the court’s finding in an earlier decision that the pension system was not barred from making benefit adjustments or recouping overpayments for benefits accruing on or after February 1, 2013.

MVM Inc. (NLRB 12/16/22) Substantial Compliance with NLRB Election Regulations
NLRB election regulations require an employer to provide to the NLRB and all parties to an election employees’ “available personal home and cellular telephone numbers.” The employer failed to provide employees’ home phone numbers, mistakenly believing they were the same as employees’ cell phone numbers. The NLRB held the employer substantially complied with the regulation because it did not act in bad faith and was not grossly negligent in omitting the home phone numbers.

Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts (NLRB 12/16/22) Contractor’s Employees’ Access to Workplace for NLRA Section 7 Activities
A property owner may lawfully exclude from its property off-duty employees who regularly work on the property for an onsite contractor and who seek to engage in Section 7 activity on the property only where the property owner is able to demonstrate that the contractor employees’ Section 7 activity significantly interferes with the use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline.

Sunbelt Rentals, Inc. (NLRB 12/15/22) Interrogation of Employees
Prior to questioning an employee in preparation for an unfair labor practice hearing, an employer must provide the employee with the safeguards set forth in Johnnie’s Poultry 146 NLRB 770 (1964) to ensure the questioning is not coercive.

Beco v. Fast Auto Loans, Inc. (CA4/3 G059382, filed 11/17/22, ord. pub. 12/14/22) Arbitration 
Denial of motion to compel arbitration affirmed where the arbitration agreement contained unconscionable provisions that could not be severed to cure the defects. Additionally, the court, not the arbitrator, was the proper forum to decide unconscionability.

RAV Truck & Trailer Repairs, Inc. and Concrete Express of NY, LLC (NLRB 12/14/22) Restoration Order
Employer illegally closed part of its operation to avoid unionization. An order to restore the discriminatorily closed operation was not appropriate because the employer no longer owned or leased a facility where it could legally perform the work and would have to incur substantial expenses to obtain premises and equipment to restore the operation.

American Steel Construction, Inc. (NLRB 12/14/22) Appropriate Bargaining Unit Test
The Board returned to the standard adopted in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) where a bargaining unit is appropriate if the employees in the petitioned-for unit are readily identifiable as a group and share a community of interest. If a party claim additional employees should be included in the unit, the party must show the excluded employees share an “overwhelming community of interest” in order to be included in the unit.

Thryv, Inc. (NLRB 12/14/22) Make-Whole Relief
To ensure affected employees are made fully whole, the NLRB now will expressly order respondents to compensate affected employees for all direct or foreseeable pecuniary harms the employees suffered as a result of the unfair labor practice. In compliance proceedings, the NLRB General Counsel will bear the burden of proving the amount of losses and their causation by the unfair labor practice.

Barstow Community College District (PERB Order No. Ad-498 12/13/22) Electronic Filing
PERB’s e-filing regulations deem a document filed after 11:59 p.m. as being filed the next business day. The district’s response to exceptions was due on November 7 but not filed until 12:01 a.m. on November 8. The Board found no good cause to excuse the late filing based on district counsel’s trying various ways to electronically sign the document because under PERB’s regulations the act of e-filing itself is deemed an electronic signature.

Hooks v. Nexstar Broadcasting, Inc. (9^th Cir. 21-35252 12/5/22) NLRA 
The district court issued a preliminary injunction pending the NLRB’s resolution of unfair labor practice charges against Nexstar. The appellate court held that Nexstar’s appeal of the preliminary injunction was not moot even though the NLRB proceedings were now complete. On the merits, the court held that the district court abused its discretion by applying a presumption of irreparable harm based on the NLRB establishing a likelihood of success on the merits.

Lewis v. Simplified Labor Staffing Solutions, Inc. (CA2/8 B312871 12/5/22) Arbitration | PAGA 
The rule that predispute agreements to arbitrate PAGA claims are unenforceable does not survive the U.S. Supreme Court’s recent decision in Viking River Cruises, Inc. v. Moriana. Denial of motion to compel arbitration of Lewis’ PAGA claims reversed and remanded. Under the arbitration agreement, the arbitrator is to determine whether non-individual PAGA claims are governed by the arbitration agreement in the same way as individual PAGA claims.