Labor & Employment

After the California Supreme Court decided that Dynamex and its ABC test of employment for purposes of IWC wage orders applies retroactively, this 9th Circuit decision remands the case to the district court for further proceedings, giving extensive guidance to the district court in the process.  First, the ABC test applies to a three tier franchising operation such as Jan-Pro's. … Read More

Summary judgment was properly entered against plaintiff on his FEHA retaliation claims.  The employer introduced evidence showing it promptly investigated plaintiff's complaint about his supervisor's discriminatory conduct and moved plaintiff to a different part of the company under a different supervisor.  When plaintiff was later fired, it was for poor performance, as determined by three supervisory employees who were unaware… Read More

Summary judgment was properly granted the employer on plaintiff's California Family Rights Act claims.  Plaintiff introduced no evidence that he had requested medical leave.  Instead, when he complained about suffering migraine headaches, and the employer asked who could replace plaintiff in supervising his staff, plaintiff said medication would cure the headache in a few hours.  The employer also produced unrebutted… Read More

Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 ane the ABC test it adopted for distinguishing employees from independent contractors for purposes of IWC wage orders applies retroactively to all cases pending on the date Dynamex became final.  Since Dynamex decided an issue of first impression, no one could reasonably have relied on the prior uncertain state… Read More

Under the federal Family and Medical Leave Act, an employee may take 12 weeks of unpaid family or medical leave in a 12 month period.  This decision holds that when the employee works on a 7 days on, 7 days off schedule, the off days as well as the on days are counted toward the 12 weeks of allowed leave. Read More

The Federal Motor Carrier Safety Administration's regulation interpreting 49 U.S.C. § 31141(c) governing preemption of state law relating to commercial motor vehicle safety was entitled to Chevron deference.  The regulation reasonably found California's meal and rest breaks statutes preempted by federal law since the state laws required more frequent and longer rest and meal breaks than federal law and with… Read More

This decision affirms an order denying an employer's motion to compel arbitration in a wage and hour case. Though the employer called the plaintiff an independent contractor, the relationship was close enough to an employment relationship to make the Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83 standards of unconscionability applicable.  The arbitration provision was procedurally unconscionable… Read More

When an employee sues her employer under Gov. Code 12940(n) for failing to engage in an interactive process concerning making a reasonable accommodation for the employee's disability, the employee need not suggest a possible accommodation to begin the process, but must, by the time of trial, be able to show that a reasonable accommodation existed at the time the employer… Read More

This decision agrees with the employer that a single PAGA claim alleging violations of 8 different Labor Code sections probably stated 8 separate "causes of action" for purposes of summary adjudication.  But that didn't help the employer which had moved for summary adjudication as to the PAGA claim as a whole, rather than with respect to each alleged Labor Code… Read More

Before filing a PAGA suit for civil penalties against an employer for violation of state wage and hour laws, an employee must send notice of the alleged violations to the Labor and Workforce Development Agency and the employer.  The notice must do more, but not much more, than recite statutory language or conclusions about how the employer has violated various… Read More

In 2018, the California electorate adopted Prop. 11 which enact Lab. Code 880 et seq., providing that ambulance employees must remain reachable by a communications device during their work shifts, including rest breaks. Lab. Code 889 expressly made the new law applicable to any and all actions pending on, or commenced after October 25, 2017. This decision holds that the… Read More

Substantial evidence supported the trial court's finding that the husband and wife who owned and managed the defendant corporation were alter egos of the corporation and liable for the corporation's Labor Code violations in a suit brought by a former employee.  The evidence showed that the corporation had paid some of the couple's personal debts and that the couple had… Read More

Following Ward v. United Airlines, Inc. (2020) 9 Cal.5th 731 and Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, this decision holds that California's wage and hour laws apply to seamen working on a ship that sailed between California ports and oil drilling platforms outside California's jurisdictional limits.  The seamen performed most of their work in California--though the… Read More

Disagreeing with Batze v. Safeway, Inc. (2017) 10 Cal.App.5th 440, this decision holds that Amrican Pipe tolling applies to this later-brought individual suit on the same Labor Code violations alleged in two prior putative class actions, both alleging that Staples misclassified its store managers as exempt employees even though they spent more than 50% of their work time performing functions… Read More

To obtain review of an OSHA Appeals Bd. decision, the aggrieved party must petition the Appeals Bd. for reconsideration of the underlying decision (whether of an ALJ or the Appeals Bd.), but this decision holds, there can be no second petition for reconsideration unless (a) on the first reconsideration the Appeals Bd. reverses the underlying decision, thus creating a new… Read More

Following Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, this decision holds that filing an amended charge with the EEOC does not exhaust administrative remedies under California's FEHA.  Nor did plaintiff properly exhaust his state law administrative remedies by amending his FEHA complaint long after the FEHA had closed its file on the matter.  Moreover, the amended… Read More

Generally, an employee must bring a claim under the federal Family and Medical Leave Act within two years of the violation.  ” 29 U.S.C. § 2617(c)(1). This limitation is extended to three years for a “willful violation.” 29 U.S.C. § 2617(c)(2).  This decision holds that a violation is willful only if the employer “either knew or showed reckless disregard for… Read More

A minor who signs a contract may disaffirm the contract after reaching 18 years of age. Fam. Code 6710.  Plaintiff in this case signed an employment agreement with an arbitration clause to work as a waitress at a Del Taco restaurant when she was 16 years old.  This decision holds that she retained the right to disaffirm the contract after… Read More

Ohio attorneys were admitted pro hac vice to represent Big Lots in this suit challenging Big Lots' classification of store managers as exempt managerial employees.  The Ohio attorneys then appeared for and represented several former Big Lots store managers at their depositions in the case.  When the plaintiffs brought this fact to the trial court's attention, it revoked the Ohio… Read More

The Federal Aviation Administration Authorization Act does not preempt California's ABC test for distinguishing between independent contractors and employees, and so that test as adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 and codified in Lab. Code 2775 and 2776 governs in determining whether a federally licensed interstate motor carrier has correctly classified its truck… Read More