Labor and Employment eNews

Hope everyone’s 2023 is off to a good start! I have lots of items to share with you in this month’s message:  Read more

Code of Civil Procedure sections 1281.97 and 1281.98 provide that if a company or business that drafts an arbitration agreement does not pay its share of required arbitration fees or costs within 30 days after they are due, the company or business is in “material breach” of the arbitration agreement, and an employee or consumer can, among other things, withdraw his or her claim from arbitration and proceed in court. The trial court correctly allowed De Leon’s claims to proceed in court when Juanita’s Foods was late paying arbitration fees because the statutory 30-day deadline is a bright-line rule that does not give the trial court discretion to consider additional factors such as delay or prejudice. Read more

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. Read more

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. Read more

California’s Private Attorneys General Act does not violate the separation of powers doctrine by allowing private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion. PAGA is not meaningfully distinguishable from comparable qui tam statutes outside the employment context. Read more

Spring is a time of rejuvenation.  Vines spurt new growth, flowers bloom, graduations and weddings are celebrated. This Spring feels particularly hopeful.  On May 6, 2022, our Section will host the 2022 Public Sector Conference in San Francisco.  This will be our first hybrid conference, and the first educational event at which we will have in-person attendance since 2019.  It has been a long two plus years, and while I believe we will continue to incorporate virtual conferences in our regular… Read more

The May 2022 issue of our Section’s California Labor & Employment Law Review will lead off with an article by Michael Robbins and Scott Barer on “Clear and Convincing or Preponderance of the Evidence – What’s a Poor Workplace Investigator to Do?” The piece will address the recent California Supreme Court decision in Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022), which set forth the proper method for presenting and evaluating a claim of whistleblower retaliation under Cal. Lab. Code § 1102.5 Read more

Arbitration agreement was procedurally unconscionable because it was presented to Nunez as a nonnegotiable condition of employment, Nunez cannot read English, and the agreement was not explained to him. Read more

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. Read more

Zamora v. Security Industry Specialists (CA6, filed 9/30/21, pub. ord. 10/29/21 H044008) FEHA Disability Discrimination, Retaliation, Wrongful Termination McDonnell Douglas burden-shifting framework applied to plaintiff’s disability discrimination claim because he presented no direct evidence of discrimination. Triable issue of material fact existed on plaintiff’s disability discrimination claim because a jury could find that the empl Read more