Labor & Employment

On remand after Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 held that 8 of Bonni's 10 retaliation claims arose from protected activity under CCP 425.16(e), this decision holds that the absolute litigation privilege precludes Bonni from proving a probability of success on those 8 claims.  Defendant's reports to the Medical Board are statutorily required and hence subject… Read More

Neither claim nor issue preclusion applies when the prior judgment was obtained against a person acting in a different capacity than the capacity in which he brings the second suit, at least so long as the second suit is also brought on a different right.  Here, the court applies that principle to hold that an arbitration award and judgment against… Read More

Plaintiff, a retired state government employee, sued the closed shop union for deducting dues from her wages even though she never joined the union.  The decision affirms dismissal for lack of jurisdiction as to her claims for prospective declaratory and injunctive relief because she was no longer employed and so not threatened with any future deduction of union dues from… Read More

Under Gov. Code 12965(c)(3), an action in which one cause of action is for violation of FEHA (even if joined with other claims) may be brought, among other venues, where the violation occurred or where the plaintiff would have worked but for the alleged violation.  This decision holds that venue in this pregnancy discrimination case was proper in Los Angeles… Read More

A Workers Compensation judge's finding that the employer did not discriminate against the employee based on her industrial injury under Lab. Code 132a does not necessarily preclude the employee's claims for disability discrimination under FEHA--at least when the Workers Comp. judge expressly refuses to decide whether the employer discriminated against the employee based on her disability as opposed to the… Read More

Following Naranjo v. Spectrum Security Services, Inc. (2022)  13 Cal.5th 93, this decision holds that penalty pay for missed rest and meal breaks is "wages" and failure to pay those wages triggers waiting time and wage statement penalties under Lab. Code 202 and 206, and liability for attorney fees under Lab. Code 218.5 which directs a fee award to a… Read More

An employer's decision not to renew an employee's employment contract is an adverse employment action that will support a claim for discrimination or retaliation. Read More

(The Federal Tort Claim Act's discretionary function immunity did not shield the United States from liability for the alleged conduct of its employees in maliciously instigating false state court criminal charges against plaintiff (in retaliation for her whistleblowing).  The employees' alleged conduct in knowingly lying under oath, tampering with witnesses, or fabricating evidence to support the false criminal charges had… Read More

Usually, any agreement to waive the employee's right to sue under PAGA is unenforceable.  But there is an exception for collective bargaining agreements that cover construction workers, provide for wages, hours and working conditions, set forth a grievance and arbitration remedy for Labor Code violations, allow the arbitrator to award all remedies authorized by the Labor Code and clearly waive… Read More

Enacted in 2002, Civ. Code 3339, Gov. Code 7285, Health & Saf. Code 24000, and Lab. Code 1171.5 each provide that all rights and protections of law are available to all without regard to immigration status, that immigration status is irrelevant to proof of liability for violation of state labor, employment, civil rights, consumer protection, and housing laws, and that… Read More

Silver, a Hollywood executive, took his chef and an executive assistant, Musgrove, with his family for their vacation on Bora Bora.  The chef met Musgrove after hours and gave her alcohol and cocaine, after which she went swimming and drowned.  This decision holds that Silver is not vicariously liable for the chef's after hours activities with Musgrove under any of… Read More

Following EEOC v. Waffle House Inc. (2002) 122 S.Ct. 754, this decision holds that the DFEH cannot be compelled to arbitrate even though the employees, whom it alleges were illegally discriminated against, all signed arbitration agreements. Read More

A plaintiff may apply to the court for leave to proceed by a fictitious name if privacy concerns outweigh the First Amendment interest in public access to judicial proceedings.  Here, the employee on whose behalf DFEH sued for employment discrimination said that revealing his identity and caste would subject him and his family to discrimination and jeopardize their safety in… Read More

Under IWC Wage Order no. 7, an employer must "provide" a seat to covered clerical employees, unless work requirements preclude work while seated.  This decision holds that except for the most obvious cases (such as where the employer has a seat at work station) whether the employer has "provided" a seat raises a question of fact that precludes summary judgment… Read More

The district court erred in certifying a plaintiff class in this case challenging defendant's classification of its property preservation workers as independent contractors and asserting claims for overtime pay and expense reimbursement.  Plaintiffs could not prove fact of damage--not just amount of damage--by common evidence since some class members had not worked overtime or incurred reimbursable business expenses.  The district… Read More

This decision rejects plaintiff's argument that the PAGA statute violates the state constitution's separation of powers clause because it supposedly allows private citizens to seek civil penalties on the state’s behalf without the executive branch exercising sufficient prosecutorial discretion.  The contention is barred by Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 which held that “PAGA… Read More

Plaintiff was a nurse, employed by a staffing company, on temporary assignment to a hospital run by defendant.  Plaintiff brought separate class actions against the staffing company and the hospital for wage and hour violations.  This decision holds that the settlement and dismissal of plaintiff's suit against the staffing company did not end or preclude her suit against the defendant. … Read More

An employee who complains to the DLSE and seeks relief from the Labor Commissioner in a Berman hearing is entitled to back wages for the limitations period calculated backwards from the date the employee files an initial report or claim with the DLSE, not from the later date of filing a formal complaint.  Though it doesn't say so expressly, Lab.… Read More

The Federal Motor Carrier Safety Administration's 12/28/2018 order stating that California's meal and rest break statutes were "no longer" enforceable as to interstate truckers of goods preempted state law only prospectively and did not eliminate claims for missed meal and rest breaks that occurred before the order was issued. Read More

Agreeing with Magadia v. Wal-Mart Associates, Inc. (9th Cir. 2021) 999 F.3d 668, this decision holds that the employer did not violate Lab. Code 226(a)(9) by not stating a wage rate or hours worked for a true-up of overtime pay for the preceding month's work based on the flat rate bonus paid that month.  The statute requires wage statements to… Read More