Labor & Employment

Though the ministerial exception to employment discrimination laws is in the nature of an affirmative defense that the defendant must allege and prove, the trial court did not err in allowing the defendant in this case to raise the exception for the first time by a summary judgment motion after the close of discovery.  Plaintiff couldn't show any prejudice because… Read More

Issued by the same court on the same day as Fuentes v. Empire Nissan, Inc. (2023) 2023 DAR ___, this decision also holds that the standard arbitration provision in a Nissan dealership's employment agreement is not unconscionable because it is not substantively unconscionable.  Contrary to the plaintiff's argument, the arbitration agreement did not prevent the employee from seeking administrative relief… Read More

Disagreeing with Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, this decision holding that the arbitration provision in Nissan dealerships' standard employment agreement is not unconscionable.  Though having a high degree of procedural unconscionability due to small print size and lengthy, obscure language, the clause is not substantively unconscionable.  Small print size and obtuse phrasing relate to procedural… Read More

Adjunct professors sued USF for failing to give them wage statements that showed hours worked and hourly wage.  After judgment was entered in Gola's favor, the Legislature enacted Lab. Code 515.7 which allows nonprofit universities to avoid certain wage statement requirements if the adjunct professors' wages meet certain criteria.  This decision holds that section 515.7 does not operate retroactively to… Read More

Following Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639 and Piplack v. In-N-Out Burgers (2023) 2023 Cal. App. LEXIS 166, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated.  However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff… Read More

Olson, Uber and Postmates stated a viable claim that AB 5, which adopts the ABC test of employment for most employees, violates the Equal Protection Clause even under the rational basis test because of its many exemptions, including of app-based gig companies that perform errand services, which have similar business models to Uber and Postmates.  What differentiates this case from… Read More

A plaintiff bringing a pregnancy discrimination claim under Gov. Code section 12945(a)(3)(A) must prove that  (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition, with the advice of her health care provider; (3) the plaintiff’s employer refused to provide a reasonable accommodation; and (4) with the… Read More

The FEHA makes an employer strictly liable for sexual harassment by a supervisor, but only if the supervisor is acting in the capacity of supervisor when the harassment occurs.  Here, the trial court properly granted summary judgment to Rite Aid.  Its supervisor had become friends with the plaintiff before she went to work for Rite Aid.  The texted one another… Read More

Proposition 22 (governing the independent contractor status of gig workers)  is unconstitutional insofar as it sought to define what would be an amendment to its provisions.  That provision violated the judiciary's and the legislature's separate powers.  However, those provisions were severable, leaving the rest of the proposition intact. Read More

Reaching the same result as Galarsa v. Dolgen California, LLC (2023) 2023 Cal. App. LEXIS 129, this decision holds that plaintiff's individual PAGA claims (i.e., those which are based on Lab. Code violations affecting the plaintiff) must be arbitrated.  However, representative PAGA claims based on Lab. Code violations affecting only employees other than the plaintiff are not subject to arbitration,… Read More

On remand from the Supreme Court, this Court of Appeal decision affirms the trial court's decision not to award statutory penalties under either Lab. Code 203 (failure to pay wages on termination of employment) or 226 (wage statements) for the employer's failure to pay and include in the wage statement, premium pay for missed meal breaks.  Under the statutes, the… Read More

Under the FLSA, an employer need not pay overtime pay to employees who work in a bona fide executive, administrative, or professional capacity.  Dept. of Labor regulations impose three tests for the exemption's applicability, one of which is that the employee must be paid on a "salary basis."  This decision holds that the regulation defining "salary basis" requires that the… Read More

Summary judgment for defendant employer was reversed in this disability discrimination in employment case.  Defendant tentatively decided to lay plaintiff off before she became disabled, but didn't follow through with that decision until after plaintiff suffered a disabling injury.  Plaintiff produced sufficient evidence to raise a triable issue of fact as to whether defendant's concern with plaintiff's disability led to… Read More

Part of the Healthy Workplaces, Healthy Families Act of 2014, Lab. Code 248.5(e) provides that  “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief ."  This decision holds that "enforcing this article on behalf of the public" refers… Read More

This decision tries to make sense of arbitration of PAGA claims in light of Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906.  It holds that an arbitration clause's waiver of the right to bring PAGA claims is still unenforceable as against public policy, but that waiver can be severed from the rest of the arbitration clause, leaving the… Read More

This split decision holds that under Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708, an employer waived the right to compel arbitration against class member employees who signed a 2002 arbitration agreement even though they became parties to the lawsuit only late in the case when a class was certified.  Though the named plaintiff had not signed the arbitration agreement,… Read More

Under special legislation, Alameda County established a separate county-wide health district.  This decision holds that the district is subject to suit under some provisions of the Labor Code and IWC wage orders (meal and rest breaks and accurate wage statements) because nothing in the enabling legislation expressly exempts the district; there are no other positive indicia of legislative intent to… Read More

Under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), employers must provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves. See 38 U.S.C. § 4316(b)(1); 20 C.F.R. § 1002.150(a).  Whether short term military leave is comparable to nonmilitary leave is a jury question dependent upon three factors:… Read More

The 2022 amendment to the FAA exempting from its enforcement of arbitration agreements pre-dispute agreements to arbitrate sexual assault or harassment claims does not apply retroactively to suites filed before the amendment's effective date.  Nevertheless, arbitration should not have been compelled here because the agreement is unconscionable.  Procedurally, the employer did not disclose at the time of agreement which arbitration… Read More

Plaintiff was hired by Intelex but also worked simultaneously for five other firms that were jointly owned and operated with Intelex.  Intelelex's employment agreement contained an arbitration clause, but didn't mention the other employing companies or make them third party beneficiaries of the arbitration clause.  The other employers' motion to compel arbitration of plaintiff's wrongful termination claims was properly denied. … Read More