Labor & Employment

Disagreeing with Garcia v. Expert Staffing West (2021) 73 Cal.App.5th 408, this decision holds that a joint employer cannot enforce the arbitration clause in a temporary staffing agency's agreement with the worker that the joint employer hired through the agency--at least when, as in this case, the worker sues only the joint employer and solely for Labor Code violations.  Such… Read More

The FEHA does not protect a female employee against discrimination or harassment for undergoing oocyte (egg) retrieval procedures to donate eggs to others or freeze them for her own future use.  At least if those medical procedures are not needed to overcome infertility or some similar medical condition, they are not pregnancy or pregnancy-related, nor a disability and so are… Read More

Plaintiff's complaint alleged a viable claim for employer liability outside the Workers Compensation Act for a worker's injury due to the employer's fraudulent concealment.  Lab. Code 3602(b)(2).  Three elements comprise a fraudulent concealment claim: “(1) the employer knew that the plaintiff had suffered a work-related injury; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was… Read More

Before filing a PAGA suit, a plaintiff must send a pre-suit notice to the Labor and Workforce Development Agency and the employer describing the facts and theories to support the alleged violation. Lab. Code 2699.3.  This decision holds that while the pre-suit notice must include nonfrivolous allegations that other aggrieved employees exist, it is sufficient for the presuit notice to… Read More

When  an employer modifies its employment policy to require employees to arbitrate their disputes and clearly communicates to employees that continued employment will constitute assent to an arbitration agreement, the employees will generally be bound by the agreement if they continue to work for the employer.  However, that is not true if, as in this case, an employee promptly rejects… Read More

In Kesner v. Superior Court (2016) 1 Cal.5th 1132, the Supreme Court held that an employer owes a duty of care to only the members of the employee's household to avoid secondary exposure to asbestos.  This decision holds that the same household limitation does not restrict a manufacturer's strict liability for design defects or failures to warn regarding its asbestos-containing… Read More

This decision affirms a judgment for the plaintiff in an age discrimination and harassment case, rejecting all of the employer's many arguments.  First, the suit was timely even though the harassment had been on-going for many years.  There was no showing that the harassment had achieved "permanence" so as to prevent continued accrual from renewed harassment.  Permanence comes from employer… Read More

To support a discrimination in employment claim under Title VII, the plaintiff employee must show that the employer's action (here, a job transfer) caused some harm with respect to an identifiable term or condition of employment, but that harm need not be "substantial."  Plaintiff alleged adequate harm from transfer from a prestigious unit of the police force to supervising one… Read More

If an employer reasonably and in good faith believed it is providing a complete and accurate wage statement in compliance with the requirements of Labor Code section 226, then it has not knowingly and intentionally failed to comply with the wage statement and is not liable for statutory penalties under Labor Code section 226(e)(1).  Just as the same good faith… Read More

Summary judgment on plaintiff's discrimination in employment claims was properly granted because he failed to exhaust his administrative remedies with the FEHA and EEOC.  His administrative complaint mentioned entirely different grounds (sex and whistleblower retaliation by his supervisor) than his court complaint (sexual harassment, race, immigration status and retaliation  by coworkers).  Employees satisfy the administrative exhaustion requirement if their court… Read More

Plaintiff signed an arbitration agreement when she was initially employed by defendant on an at-will basis.  That period of employment ended.  Plaintiff was rehired four months after terminating her original employment.  On rehiring plaintiff, defendant did not require her to sign a new arbitration agreement or say anything about reviving the old one.  Held, the trial court's conclusion that there… Read More

Lab. Code 1194(a) provides that in a suit for unpaid minimum wages, an employee is entitled to recover the unpaid wages as well as reasonable attorney fees and costs.  This provision conflicts with CCP 1033(a) which grants trial courts discretion to deny costs when the plaintiff recovers less than the maximum awardable in a limited jurisdiction case.  This decision determines… Read More

This decision holds that under Wage Order 16: (1) time spent awaiting and undergoing an employer-mandated exit security procedure that includes the employer’s visual inspection of the employee’s personal vehicle at a security gate is compensable hours worked because it is an employer-mandated task for the employer's benefit.  (2) Time spent traveling between the security gate and the employee parking… Read More

The FAA's exemption for contracts of employment for workers in interstate and foreign commerce applied to plaintiff who worked in a warehouse in California which served as a transhipping depot for Adidas products which arrived at the warehouse from foreign countries, were stored temporarily at the warehouse before being loaded on trucks for distribution to local retailers.  Though plaintiff transported… Read More

Contrary to prior Second Circuit rulings, this decision holds that a plaintiff alleging retaliation in violation of the Sarbanes-Oxley Act's provision (18 U. S. C. §1514A(a)) prohibiting retaliation against employees for engaging in protected whistleblowing activity need not plead or prove that the retaliating employer acted with retaliatory intent.  The employee's prima facie case need merely show that his protected… Read More

Federal statutes are presumed to apply only domestically--within the US's territorial jurisdiction. The presumption is applied in a two-step framework.  First, the court asks if Congress has affirmatively and unmistakably instructed that the provision at issue should apply to foreign conduct. Second, if Congress has not done so, the court asks whether the suit seeks to apply the statute domestically… Read More

Under 9 U.S.C. 402(a), a pre-dispute arbitration agreement is not enforceable to require arbitration (or waive a class action) on a claim for sexual harassment or assault under state or federal law.  Section 402 became effective on March 3, 2022 and applies to all disputes which arise after that date.  This decision holds that a "dispute" does not arise when… Read More

After successfully moving to compel arbitration of Suarez's wage-and-hour claim, the defendant employer failed to pay its share of the initial arbitration fee.  This decision grants the employee's petition to vacate the order denying his motion to withdraw the dispute from arbitration on the ground that non-payment of the fee within 30 days of its due date was a breach… Read More

Employment, , 1, 1 Trial courts lack inherent authority to strike PAGA claims on manageability grounds.  Trial courts do not generally possess a broad inherent authority to dismiss claims.  Nor is it appropriate for trial courts to strike PAGA claims by employing class action manageability requirements.  Trial courts may use a vast variety of tools to efficiently manage PAGA claims,… Read More

This decision affirms an order denying an employer's motion to compel arbitration.  The arbitration provision purported to require arbitration of all disputes, but prohibit any form of representative action.  Following Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, such a clause is unenforceable as to PAGA claims involving Labor Code violations not suffered by the individual plaintiff.  Because the… Read More