Labor and Employment Law

Newly-Published Labor and Employment Law Cases

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Herrera v. Doctors Medical Center of Modesto (CA5 F080963 8/5/21) Arbitration/PAGA Representative Actions 
Plaintiffs could not be compelled to arbitrate representative claims for civil penalties under the Private Attorneys General Act of 2004 because the state, which owns the claims, was not a party to the arbitration agreements and did not ratify them, nor did the plaintiffs agree to arbitrate the claims after they became representatives of the state.

Capriole v. Uber Technologies (9th Cir. 20-16030 8/2/21) Arbitration/Class Action/Massachusetts Wage Laws 
Uber drivers, as a nationwide class of workers, are not engaged in foreign or interstate commerce and are therefore not exempt from arbitration under section 1 of the Federal Arbitration Act.

Bonni v. St. Joseph Health System (SC S244148 per curiam 7/29/21) Retaliation/Hospital Peer Review/Anti-SLAPP 
Not all claims arising from a hospital’s peer review process necessarily target protected speech or petitioning activity and therefore must be afforded anti-SLAPP protection. While statements made during and in connection with peer review proceedings and disciplinary reports filed with official bodies qualify as protected activity under the anti-SLAPP law, the discipline imposed through the peer review process does not.

Pollock v. Tri-Modal Distribution Services, Inc. (SC S262699 per curiam 7/26/21) FEHA Failure to Promote Statute of Limitations/Prevailing Defendant’s Fees & Costs 
A cause of action accrues, and the statute of limitations begins to run, on a claim for unlawful failure to promote under the harassment provision of the Fair Employment and Housing Act (Gov. Code, §§ 12940, subd. (j), 12960) when an employee knows or reasonably should know of the employer’s allegedly unlawful refusal to promote the employee. FEHA’s prohibition of an award of costs to a prevailing defendant unless the action “was frivolous, unreasonable, or groundless” (Gov. Code, § 12935, subd. (b)) applies to an award of costs on appeal.

Johnson v. Maxim Healthcare Services, Inc. (CA4/1 D077599 7/21/21) PAGA/Time-Barred Individual Claim/Representative Claim 
Under Kim v. Reins International California (2020) 9 Cal.5th 73, a plaintiff’s standing to maintain a Private Attorney General Act claim does not depend on maintaining an individual Labor Code claim. Although Plaintiff could not maintain her time-barred individual claim, this did not deprive her of standing to assert and maintain a PAGA claim.

Western Bagel Co., Inc. v. Superior Court (CA2/1 B305625, filed 6/24/21, pub. ord. 7/16/21) Arbitration/Ambiguity 
The constructive canon of contra proferentem (whereby an ambiguity in a contract is construed against the drafter thereof) cannot be applied to resolve ambiguity in an arbitration agreement subject to the Federal Arbitration Act. Ambiguity over whether arbitration agreement provided for binding or non-binding arbitration must be resolved in favor of binding arbitration, a fundamental attribute of arbitration as envisioned by the FAA.

Ferra v. Loews Hollywood Hotel, LLC (SC S259172 per curiam 7/15/21) Regular Rate of Pay Encompasses Nondiscretionary Payments  
If an employer does not provide an employee with a compliant meal, rest, or recovery period, Labor Code section 226.7, subdivision (c) requires the employer to “pay the employee one additional hour of pay at the employee’s regular rate of compensation.” The “regular rate of compensation” includes all nondiscretionary payments, not just hourly wages.

NLRB v. Nexstar Broadcasting, Inc. (9th Cir. 20-71480 7/12/21) NLRA/Unfair Labor Practices 
An employer’s contractual right to make changes to terms and conditions of employment expires at the end of the collective bargaining agreement’s term unless the agreement explicitly says the right will continue post-expiration. General contractual language about work hours and travel policy was not sufficient to allow employer to make specific changes to those subjects after the agreement expired.

Certified Tire & Service Centers Wage & Hour Cases (CA4/1 D072265A 7/2/21) Wage and Hour Class Action 
Under Oman v. Delta Air Lines (2020) 9 Cal.5th 762, an employer may not “borrow” contractually promised compensation to cover periods or tasks that are not compensated at the minimum wage rate. Here, the employer’s compensation program guaranteed technicians a certain minimum hourly rate, but the rate could increase based on the amount of the technician’s work during the month that was charged to customers. Although technicians’ base hourly pay varied from month to month, it never fell below minimum wage and thus the compensation program did not constitute prohibited wage borrowing.

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