Labor & Employment

Following Vazquez v. Jan-Pro Franchising Internat., Inc. (2021) 10 Cal.5th 944, this decision holds that Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 and its ABC test for determining whether a worker or an independent contractor applies retroactively.  And, following People v. Superior Court (Cal Cartage Transportation Express, LLC) (2020) 57 Cal.App.5th 619, it also holds that… Read More

Following Nieto v. Fresno Beverage Co., Inc. (2019) 33 Cal.App.5th 274, this decision holds that workers for a company 90% of whose business was providing "last mile" transportation of goods from Amazon warehouses to Amazon customers were employees in interstate commerce and thus exempt from the FAA.  Though the workers themselves did not cross state lines, they represented the final… Read More

Employees of a private firm who, under the firm's contract with the district, sorted recyclables from a conveyor belt at a county sanitary district-owned facility were employed to perform "public work" to which the prevailing wage law applied.  Lab. Code 1720(a)(2) defines public work to include work done for irrigation, utility and other similar districts.  This work for the sanitary… Read More

Under the Displaced Janitor Opportunity Act (Lab. Code 1060 et seq.) a successor janitorial company must hire the janitorial workers of a predecessor company at the same site for at least 60 days after taking over the site, but need not hire the predecessor's managerial, supervisory or confidential employees.  This decision affirms a decision for the successor janitorial company, holding… Read More

The plaintiff in this employment discrimination case under FEHA adequately exhausted her administrative remedies by filing a charge with DFEH which named her managers, supervisors and coworkers as well as the fictitious business name of her employer.  The fact that the DFEH charge did not correctly identify the true corporate name of the defendant employer was no reason to bar… Read More

For purposes of unemployment insurance, the test set forth in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 governs the determination whether a worker is an employee or an independent contractor, not the more employee-friendly ABC test of Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903.  Nevertheless, in this case, substantial… Read More

This decision affirms the trial court's reduction of punitive damages to a 2:1 ratio to actual damages in a disability employment discrimination case.  The employer's conduct was reprehensible, although not grossly so.  The large award of emotional distress damages already contained a punitive element, and particularly when combined with the 2:1 punitive damage award and with the large attorney fee… Read More

To prove a prima facie case under the  Equal Pay Act (29 USC 206(d)), the plaintiff need only show that men were paid more for substantially equal work. In making that comparison it is the overall job, not its individual segmnents that is to be considered. Here, the male professors of psychology were paid more than plaintiff for essentially the… Read More

With the exception of one claim, the trial court did not abuse its discretion in denying class certification in this wage and hour case.  Plaintiffs claimed that the employer misclassified them as independent contractors.  While the proper classification of the workers was a common question, the trial court did not abuse its discretion in holding that the common issue did… Read More

A doctor's whistleblower retaliation suit was dismissed as premature where the only adverse action taken against the doctor was the medical committee's recommendation that he be disciplined.  The medical committee is a body independent of the hospital.  Until the hospital takes some adverse action against him, the doctor has no accrued claim on which to sue. Read More

This decision holds that a California governmnetal entity may be liable under PAGA for statutory penalties for violation of Labor Code sections that themselves prescribe penalties for their violation, but not for the default statutory penalties allowed under Lab. Code 2699(f).  That is because Lab. Code 2699(a) allows a private plaintiff to recover any statutory penalty authorized by other Labor… Read More

In this PAGA suit, the trial court erred in ordering to arbitration the preliminary/gateway issue of whether the plaintiffs were employees of the defendant rather than independent contractors.  The state is the real party in interest in a PAGA suit and cannot be forced to arbitrate any portion of its claim--including whether the individual plaintiff is an employee with standing… Read More

An employer violates Lab. Code 512 and Wage Order No. 4 if it rounds actual clock in and out times for workers to the nearest 10th or 4th of an hour in calculating their meal and rest break periods--this is true even if (a question that the Supreme Court has not resolved) a similar policy of rounding hours for beginning… Read More

The dormant Commerce Clause does not prohibit California from applying its labor laws to airline employees who reside or are employed predominantly in California.  The airline's block time method of computing pay was similar to the pay scheme approved in Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, and so did not offend California Labor Code guarantees of… Read More

A PAGA suit under Lab. Code 2988 may be brought against the employer in any county in which an aggrieved employee worked and a Labor Code violation was allegedly committed.  The private plaintiff need not bring the action in the county in which he worked or where the violations against him occurred. Read More

Defendant paid its nurse employees a regular hourly wage plus a fixed $35 per diem for employees working more than 50 miles from home.  This decision holds that the per diem sum is regular wages, not reimbursement for travel and other expenses and so must be included in the employees' regular pay when computing the 150% of regular pay to… Read More

Following Mejia v. DACM, Inc. (2020) 54 Cal.App.5th 691, this decision affirms an order denying a motion to compel arbitration.  As in Mejia, this decision distinguishes Clifford v. Quest Software Inc. (2019) 38 Cal.App.5th 745, saying it involved only the defendant's employees, not the broader public which this suit sought to benefit by an injunction against defendant's allegedly unfair practices… Read More

Reversing an order denying arbitration, this decision holds that the arbitration clause had only a minimal degree of procedural unconscionability due to the employer's greater economic power and only one clause that was substantively unconscionable but severable.  The employer was not required to give plaintiff a Spanish translation since plaintiff did not show she lacked English language skills, just that… Read More

Employer sent plaintiff a letter offering employment.  The letter contained an integration clause, but also stated that plaintiff would need to sign the employer's separate arbitration agreement.  This decision holds that the integration clause did not bar introduction of evidence of the arbitration agreement since it was not inconsistent with the offer letter's terms.  Also, the the offer letter sufficiently… Read More

After the California Supreme Court's decision on certified questions in Ward v. United Airlines, Inc. (2020) 9 Cal.5th 732, this decision holds that California's application of Labor Code 226 to transport workers who work a majority of their time in California does not violate the dormant Contract Clause and is not preempted by the Airline Deregulation Act or the Railway… Read More