Labor & Employment

Under Wage Order No. 5, a hospital may obtain an affirmative defense to a claim for overtime pay by securing a 2/3ds affirmative vote of the workers in the unit to an alternative work schedule so long as the employer first makes full disclosure of the effects that the alternative work schedule will have and fulfills various other procedural requirements. … Read More

Following Rittmann v. Amazon.com, Inc. (9th Cir. 2020) 971 F.3d 904, this decision holds that drivers who drove goods from in-state warehouses to Domino's franchisees in California are workers engaged in interstate commerce within the meaning of the exception to the FAA's scope.  These drivers handled the last stage of transportation of the goods from out-of-state sources to the California… Read More

This decision affirms a $7 million judgment, including $6 million in punitive damages, against an employer for firing plaintiff in violation of Lab. Code 1102.5(c) (which prohibits adverse employment action in retaliation for a refusal to work reasonably perceived to violate a local, state or federal rule or regulation) and 232.5 (which prohibits retaliation for reporting working coinditions).  Plaintiff was… Read More

Anaheim's living wage ordinance applies to any business that receives a city subsidy--that is, a right to receive a rebate of any city tax.  This decision holds that defendant is such a business because it had a right to receive a rebate of certain city taxes if they exceeded the amount needed to repay bonds issued to revitalize the Anaheim… Read More

Lab. Code 2802 requires an employer to reimburse employees for expenses they incurred in working from home during the COVID-19 pandemic.  It does not matter that the state's emergency stay-at-home caused the employees to work from home rather than in an office.  Lab. Code 2802 contains no causation requirement or excuse.  Rather the section requires an employer to reimburse employees… Read More

While the Rowland factors' foreseeability factors weigh in favor of imposing a duty of care on employers to take safety measures to prevent employees from contracting COVID-19 and transmitting the disease to family members and others, the public policy factors weigh against finding such a duty of care and they outweigh the foreseeability factors.  Recognizing liability would create staggering risk… Read More

Defendant employer did not pay its arbitration fees within 30 days after their due date.  Under CCP 1287.98, plaintiff therefore had and exercised the right to withdraw his claim from arbitration and pursue it in court.  The arbitrator or arbitration administrator had no power to avoid the effect of defendant's nonpayment by extending the due date after defendant's default.  Also,… Read More

Under Title VII (42 USC 2000e(j)), an employer must accommodate an employee's religious observance practice unless it is unable to do so without undue hardship in the conduct of the employer's business.  Undue hardship requires substantially more than "more than de minimus cost."  Instead, to establish "undue hardship," an employer must show is that the burden of granting an accommodation… Read More

While Lab. Code 1102.5 protects whistleblowers who are employees of a city or other governmental agency, the section does not apply to or protect elected governmental officials, like plaintiff who was a city treasurer.  By contrast, Lab. Code 3351 defines "employee" for purposes of the Workers Compensation Act to include all elected, paid public officers.  So the Workers Compensation Act… Read More

This decision holds that sexually graphic, violently misogynistic music played constantly throughout defendant's warehouse could create a hostile working environment constituting sex discrimination in employment.  Music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute sex discrimination.  Harassment, whether aural or visual, need not be directly… Read More

Under Lab. Code 2810.3, an outsourcing employer is liable for employees' wages for work done for another entity if the work is within the outsourcer's usual course of business.  Here, the court holds that the section did not apply to defendants which were corporations that bought produce from farming corporations for which the workers were employed.  While the defendants' produce… Read More

The NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work.  Here, workers waited until the employer's cement trucks were loaded with wet concrete.  Then they struck, allowing the concrete to harden and destroying the employer's trucks.  That conduct was not… Read More

California's statute forbidding retaliation against employee whistleblowers protects an employee who discloses to supervisors or public prosecutors or regulators information about what he believes are his employer's violations of law--even if the recipient of the information is already aware of the reported violations.  Section 1102.5 protects "disclosures," a term broad enough to encompass emphasizing already known facts.  The term “disclosure”… Read More

Summary judgment was properly entered against plaintiff on her FEHA disability discrimination claim.  She was fired when she refused to take a flu vaccine which her employer required as a condition of employment.  Plaintiff had undergone chemotherapy for colon cancer, but had survived with the cancer in remission.  Lingering side effects of the chemotherapy were not contraindications for taking a… Read More

Calling contrary language in SI 59 LLC v. Variel Warner Ventures LLC (2018) 29 Cal.App.5th 146 dicta, this decision holds that despite Civ. Code 1668, a release may be enforceable while the claim still has not accrued for statute of limitations purposes, at least so long as the plaintiff is aware of the claim she releases and the wrongful acts… Read More

Defendant didn't infringe on plaintiff's First Amendment rights by restricting him from talking to potential witnesses and other of defendant's employees about plaintiff's alleged transgressions while defendant conducted an investigation of those matters.  Plaintiff was not prevented from speaking about matters of public concern, but only from discussing his own alleged violation of defendant's policies—a matter of private, personal concern. Read More

The trial court did not err in denying a motion to compel arbitration in this case on the ground of unconscionability.  The employee was required as a condition of employment to sign the arbitration agreement and a separate confidentiality agreement.  The two had to be construed together since they both dealt with resolution of disputes arising out of plaintiff's employment… Read More

Under Lab. Code 2785, the exemptions are retroactive.  Here, a securities investment advisor with a registered broker-dealer (one of the exempt categories) sued for wage and hour violations which occurred before the exemption was enacted.  This decision holds that section 2785, making the exemption retroactive, is constitutional.  There was a rational basis for treating securities investment advisors differently; hence, the… Read More

Former nanny sued parent-employers on four wage-and-hour claims and also for defamation based on statements parents made to a friend the parents involved in an attempt to obtain a release of claims by the nanny in exchange for a severance package.  Held, the statements were not protected speech under the Anti-SLAPP statute since litigation was not then threatened or seriously… Read More

In response to Smith v. Superior Court (L'Oreal USA, Inc.) (2006) 39 Cal.4th 77, the Legislature enacted Lab. Code 201.3(b), which provides that a temporary worker hired by a staffing company and working on assignment for another employer is not terminated for purposes or receiving a final pay check when the temporary assignment ends, but only when the staffing agency… Read More