Labor & Employment

The party moving to compel arbitration bears the burden of proving that the parties entered into an arbitration agreement.  Here, plaintiff employee denied that she had electronically signed the arbitration agreement during the employment onboarding procedure that defendant implemented on taking over the acute care facility at which plaintiff worked.  One way to authenticate an electronic signature is to show… Read More

Following Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 as a correct statement of California law on a non-signatory's use of equitable estoppel to compel arbitration against a signatory plaintiff, this decision affirms an order compelling arbitration of the plaintiff's wage and hour claims against defendant hospital.  Plaintiff was directly hired by a staffing agency that paid her wages and… Read More

Following EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, this decision holds that the Secretary of Labor cannot be compelled to arbitrate his enforcement action under the Fair :Labor Standards Act even if the employees had agreed to arbitrate their claims against their employer.  The FLSA expressly allows the Secretary to sue to obtain monetary relief for aggrieved employees… Read More

This decision holds that for three reasons an employee failed to state a Tameny claim for wrongful termination in volation of public policy as embodied in Santa Monica's ordinance requiring employers to rehire workers laid off due to economic downturns.  First, the employee could not establish a violation of the ordinance since he had not been employed for six months… Read More

Santa Monica adopted an ordinance in the aftermath of the 9/11 attacks requiring employers to offer to rehire workers who had six months or more of prior employment with the employer and whose most recent employment was terminated due to lack of business, a reduction in force or other, economic, non-disciplinary reason.  This decision holds that the plaintiff could not… Read More

Smith was employed by Jiffy Lube.  Fifty Jiffy Lube employees including Smith and his supervisors attended a meeting at which Pumerol, a BP representative, provided information on the company's new product and how it should be used in Jiffy Lube's work.  During the meeting Pumerol made three derogatory comments about Smith, an African-American, including a reference to his "Banana Hands/" … Read More

This decision affirms an order denying class certification on a claim that See's did not give its employees a second meal break when they worked for 10 hours or more a day.  See's had a written policy requiring a second meal break in those circumstances, but plaintiff claimed that See's routinely failed to follow that policy in practice.  Time records… Read More

For an association to have standing to sue for its members, it must show that (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. … Read More

Disagreeing with Villacorta v. Cemex Cement, Inc. (2013) 221 Cal.App.4th 1425, this decision holds that income a wrongfully terminated employee earns from another job after termination must be subtracted from her past economic damages for the wrongful termination whether or not the subsequent employment was not comparable or substantially similar to the job that was wrongfully terminated.  The comparable or… Read More

Following Contreras v. Superior Court (2021)  61 Cal.App.5th 461 and Provost v. YourMechanic, Inc. (2020) 55 Cal.App.5th 982, this decision holds that even when the arbitration agreement delegates arbitrability issues to the arbitrator, a plaintiff bringing a PAGA claim cannot be compelled to arbitrate the threshold issue of whether she is an "employee" with standing to bring a PAGA claim… Read More

The gist of a teacher's FEHA claim for retaliation for filing a complaint with the DFEH was the defendant's adverse employment action, not the protected activity of the investigation it conducted leading up to that action or its later protected action of defending the adverse employment action before a review commission.  Accordingly, the case did not arise from conduct protected… Read More

AB-5 which codifies the ABC test of employee status is a generally applicable labor law that affects a motor carrier’s relationship with its workforce but does not bind, compel, or otherwise freeze into place the prices, routes, or services of motor carriers, we conclude that it is not preempted by the Federal Aviation Administration Authorization Act of 1994 (49 USC… Read More

The IWC's wage orders setting minimum wages and the method of calculating hours of work for purposes of paying minimum wages do not apply to the University of California which is not a political subdivision of the state and does not otherwise fall within the definition of a public employer under Wage Order No. 4.  Instead, the University is a… Read More

Using the website of the administrator hired by Northrup Grumman to manage its pension plan, plaintiffs submitted requests for the administrator to tell them the monthly pension benefit they would receive if they retired on a certain date.  The administrator miscalculated the benefit because it used the requesters' wages during their second period of employment by Northrup Grumman rather than… Read More

Older 9th Circuit decisions hold that while statutory employment discrimination claims under Title VII and similar laws are arbitrable, there must be a showing that the employee knowingly waived his right to a jury trial of such claims.  In this decision, the court holds that even if the "knowing waiver" standard is still good law, it was satisfied in this… Read More

Section 105(c) of the federal Mine Safety and Health Act (30 U.S.C. § 815(c)) prohibits an employer from taking adverse action against an employee "because of" the employee's reporting a violation of the Act or seeking benefits under it.  Following the Supreme Court's decisions in Bostock v. Clayton Cnty., 140 S.Ct. 1731, 1739 (2020) and other recent cases, this decision… Read More

Kaiser adequately proved that Kuntz's decedent enrolled with Kaiser under a CalPERS medical insurance plan which included an arbitration clause.  Kaiser showed that CalPERS keeps the individual enrollment forms, just sending Kaiser electronic enrollment information.  Kaiser's electronic enrollment information showed that Kuntz's decedent had been enrolled in the Kaiser health plan continuously since 1983.  Kaiser was not required to show… Read More

A collective bargaining agreement will not be interpreted to require arbitration of statutory wage and hour claims unless the agreement clearly and unmistakably requires arbitration of those claims.  Here, the CBA did not meet that standard.  It required arbitration of only those issues that the union and employer later agreed to arbitrate.  Also, litigation of the statutory wage and hour… Read More

Following SEIU Local 121RN v. Los Robles Regional Medical Center (9th Cir. 2020) 976 F.3d 849, this decision holds that, at least with respect to delegation of arbitrability questions to the arbitrator, arbitration clauses in collective bargaining agreements are to be interpreted just like arbitration clauses in other types of contracts.  Arbitrability questions are determined by the court unless the… Read More

NLRA section 301 completely preempts state law claims that implicate a collective-bargaining agreement or an agreement between labor organizations, except for claims that (1) arise independently of the agreement, and (2) don’t substantially depend on analysis of the agreement.  Here, union members of a Nevada local sued to challenge the national union's placing the local into trusteeship.  The union members'… Read More