Labor & Employment

Employment, Race/Ethnicity Discrimination, Unconscious Discrimination, Aversive Racism, 2, 8 This decision holds that race discrimination need not be consciously motivated by race in order to violate Title VII.  Unconscious application of racial stereotypes is enough to violate the statute.  However, expert testimony regarding such unconscious application of racial stereotypes does not prove race discrimination as a matter of law.  The… Read More

Labor Code 206 and 206.5 require an employer to pay an employee all wages the employer concedes are due without condition and without any release of the employee's disputed claims, if any, to other wages.  Here, the employer conceded it owed plaintiff a bonus, but before paying it sent the plaintiff a 998 offer to settle all wage claims.  Held,… Read More

An employer that gives preferential treatment toward a supervisor’s sexual or romantic partner does not thereby discriminate on the basis of sex against other employees of the same sex as the paramour because it doesn't satisfy Bostock v. Clayton County (2020) 140 S. Ct. 1731's test--would employer have acted differently if employee was of the opposite sex.  As used in… Read More

Romero drove a truck for defendant employer entirely within the boundaries of California, but he delivered goods that had been shipped by interstate transportation.  Therefore, was a worker engaged in interstate commerce to whose contract of employment the FAA does not apply.  9 U.S.C. 1.  The FAA's exemption of employment contracts of workers in interstate commerce is not waivable.  So… Read More

Both parties supply temporary nurses to hospitals.  Plaintiff entered into a contract with defendant to supply nurses when defendant couldn't fill orders from its own supply of nurses.  The contract contained a clause prohibiting plaintiff from soliciting defendant's employee-nurses to work for plaintiff rather than defendant.  This decision holds that the non-solicitation clause is an ancillary restraint to be analyzed… Read More

The FAA applies to an arbitration clause in an employment agreement involved in interstate commerce and preempts California Labor Code 229 which forbids arbitration of wage and hour claims.  The parties did not elect out of FAA preemption by a choice of law clause in the employment contract generally choosing California law, but not specifically choosing California law regarding arbitration… Read More

Burlington forced Gallano, one of its check-out clerks, to sign a promissory note for losses on return of items by customers or mistaken pricing of goods due to other workers' errors in affixing price tags.  This opinion holds that Gallano stated viable claims against Burlington for violation of Lab. Code 2802 (which requires the employer to reimburse employees for expenses… Read More

Part of California's Prevailing Wage Law, Labor Code 1772 provides:  "Workers employed by contractors or subcontractors in the execution of any contract for public work are deemed to be employed upon public work."  Delving into the section's history and rejecting Court of Appeal decisions giving it a different interpretation, this decision holds that the section merely makes it clear that… Read More

California's Prevailing Wage Law (Lab. Code 1720(a)(1)) defines a "public work" as including construction and installation.  This decision holds that while the statute does not expressly say so, the prior common meaning of a public work--that is a physical installation on real property--provides a context for the statutory definition, confining its broad undefined terms, construction and installation, to tasks performed… Read More

Although the trial court did not abuse its discretion in excluding from evidence the digitized spreadsheets of meal break and rounding of work hours for lack of a proper foundation, it did abuse its discretion in excluding an expert witness' opinion based on those digitized spreadsheets.  An expert may rely on inadmissible evidence if based on information that is reliable… Read More

Following Kim v. Reins Internat. California, Inc. (2020) 9 Cal.5th 73, this decision holds that the plaintiff in this case had standing to pursue a PAGA suit against her employer because she alleged she had been a victim of one of the alleged violations of the Labor Code by her employer.  She did not lose her standing to sue under… Read More

This decision holds that an employer cannot be penalized under Lab. Code 1197.1(b) for failure to pay minimum wages if it has paid at least minimum wages to the employees on or before their scheduled pay day, even if it violates Lab. Code 201, 202 by failing to pay an employee who is fired immediately on termination or one who… Read More

In hospital peer review committee proceedings, a person hired by a hospital to serve as a hearing officer may be disqualified for financial bias under Business and Professions Code section 809.2(b), on grounds that the officer has an incentive to favor the hospital in order to increase the chances of receiving future appointments.  Under the statute, a hearing officer is… Read More

This decision affirms denial of the employer-defendant's motion to compel arbitration under an agreement that delegated arbitrability questions to the arbitrator.  The arbitration agreement and its delegation clause were both unconscionable for the same reasons.  Procedurally, the agreement was presented as an adhesion contract that employees had to sign to retain employment.  Also the agreement was nine pages of 10… Read More

A defendant may be held liable for negligent entrustment of a vehicle and negligent hiring of the employee who drives it if the employer fails to make a reasonable effort to determine whether the employee has a valid driver's license before allowing him to drive the vehicle.  See Veh. Code 14604, 14606(a).) Read More

Following Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228, this decision holds that an employee cannot be compelled under a predispute arbitration clause to arbitrate a PAGA claim.  The FAA does not preempt this rule.  The employer failed to show that the employee who filed the suit was employed under a collective bargaining agreement so the LMRA  301 did… Read More

The district court correctly compelled arbitration in this wage-and-hour misclassification suit by a Massachusetts Uber driver.  Even assuming Massachusetts would follow McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, plaintiff did not seek a public injunction with McGill's meaning.  Instead, plaintiff sought only an injunction that would benefit himself and other Uber drivers, but not the general public, by requiring… Read More

The trial court correctly compelled arbitration of this Massachusetts Uber driver's wage and hour class action, based on alleged misclassification of Uber drivers as independent contractors.  For purposes of determining whether the plaintiff was a worker in interstate commerce, exempt from the FAA under 9 USC 2, the court properly considered the class of all Uber drivers nationwide, not just… Read More

A hospital peer review proceeding to discipline a staff physician is an official proceeding.  Statements made at the peer review proceeding are protected speech under CCP 425.16(e).  If the plaintiff doctor cannot show a probability of success on the merits of claims based on those statements, the claims must be stricken, but the doctor can still introduce the statements as… Read More

After the Court of Appeal decided in Hollingsworth v. Superior Court (2019) 37 Cal.App.5th 927 that the trial court, having first acquired jurisdiction, should decide whether the Workers Compensation Appeals Board had exclusive jurisdiction over this worker's injury suit--a question that turned on whether the employer had workers compensation insurance coverage at the time plaintiff was injured.  The plaintiff had… Read More