Labor & Employment

The FAA does not preempt California law insofar as it invalidates a waiver of an employee's right to bring PAGA claims arising out of Labor Code violations that affected the plaintiff employee.  However, the FAA does preempt California law (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 and progeny) insofar as it precludes waiver of the employee's… Read More

This decision holds that an employer did not have to pay job applicants for the time and expense of taking drug tests as a precondition for employment.  The employer's control over the drug tests was not control over the performance of work and so didn't make the applicants employees.  Nor was the drug test a condition subsequent to employment.  Instead,… Read More

This decision affirms a summary judgment for Walmart on a model's claim for waiting time penalties for Walmart's failure to pay her all earned wages after each one- or two-day photo shoot.  Although triable issues of fact remained as to whether plaintiff was an employee to whom Labor Code 203 applied, Walmart had established its defense of a good faith… Read More

An airline employee whose duties involved loading and unloading baggage and cargo onto and from airplanes that flew interstate routes was an employee engaged in interstate commerce and thus the FAA did not apply to the arbitration clause in his employment agreement.  9 USC 1 exempts a class of workers--not a class of their employers; so the fact that Southwest… Read More

Following Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, this decision pays close attention to the text of Lab. Code 1102.5, but nevertheless affirms a summary judgment for the employer.  First, the decision casts doubt on whether the employee who invokes section 1102.5 must actually believe what she reported was a violation of law so long as there… Read More

The extra hour's penalty pay that an employer must pay a worker who has been denied a meal break is wages, and so failure to pay the hour's wage triggers the additional waiting time and insufficient wage statement penalties under Lab. Code 203 and 226.  The employee is entitled to 7% prejudgment interest on the hour's penalty wages. Read More

CCP 340.3(a) lengthens the statute of limitations for suing a defendant convicted of a felony for the wrongful act on which the plaintiff sues.  This decision holds that section 340.3(a) does not lengthen the statute of limitations for suits against those vicariously liable for the felon's wrongful act, such as his employer in this case.  The decision also holds that… Read More

This decision reverses a summary judgment for defendant, finding a triable issue of fact as to whether defendant willfully violated the FCRA's requirement that an employer provide a job applicant a stand alone disclosure of its potential use of credit reports for employment screening.  (15 USC 1681b(b)(2)(A).)  Wilful for this purpose includes reckless conduct that increases the risk of violation… Read More

While an easily correctible defect is not a disability protected under the Americans with Disabilities Act, a disability need not be permanent or long-term to be protected.  Here, the employee adequately alleged an ADA claim against her former employer by pleading facts plausibly establishing that she had a physical impairment both during an immediate post-surgical period after a bone biopsy… Read More

One union representing some of Antioch's employees brought an administrative grievance making the same claim as the retired employee plaintiff brought in this later suit--that the City was stinting them on contributions for their benefit to CalPers,  This decision holds that the due process limits on collateral estoppel keep it from operating to bar the current suit based on the… Read More

The common law rule of exclusive concurrent jurisdiction applies to PAGA suits.  Nothing in the PAGA statutes clearly or unequivocally evince an intent to abrogate that well-established rule in PAGA suits.  Absence of an express first-filed suit requirement in the statute is insufficient to show such an intent.  Invoking the exclusive concurrent jurisdiction rule, the trial court properly stayed this… Read More

Plaintiff employee's initial complaint sought individual and class relief for Labor Code violations as well as PAGA claims for statutory penalties for the same violations.  After defendant employer moved to compel arbitration, plaintiff amended the complaint to delete the individual and class claims, leaving only the PAGA claims.  This decision holds that the amendment was effective to avoid arbitration.  Under… Read More

Four federal statutes bar discrimination on the basis of race, gender, disability or other protected characteristics by recipients of federal financial assistance; namely Title VI and IX of the 1964 Civil Rights Act, the Rehabilitation Act and the Affordable Care Act.  None of these acts expressly grant private rights of action to victims of discrimination that violates those Acts' provisions. … Read More

While an employer has an affirmative duty to provide employees with a safe place to work (Lab. Code, § 6400(a); Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 603), this decision holds that this duty does not  include ensuring that an off-site meeting place for coworkers and business associates--such as at an employee’s private residence is safe… Read More

The district court erred in granting defendant summary judgment in this case in which the plaintiff Mexican nationals alleged a claim under 18 USC 1595 which gives a private right of actions for forced labor in violation of 18 USC 1589(a).  The latter section prohibits obtaining labor by (among other things) means of abuse of law or legal process.  There… Read More

Employer's arbitration clause was unenforceable because it was unconscionable.  The clause was a mandatory, non-negotiable requirement of employment.  It was procedurally unconscionable because it was given to plaintiff only in English, which he cannot read, and without a schedule of the arbitration fees he could be charged.  It was substantively unconscionable because it allowed the arbitrator to shift attorney fees… Read More

Plaintiff was injured in an auto accident caused by defendant's employee who was returning home after an 8 hour shift as a security guard.  The decision holds that the going and coming rule applies and the employer therefore is not liable for the employee's tort.  There was nothing special about employment as a security guard that created an unusual risk… Read More

A summary judgment in favor of defendant in this whistleblower action is reversed because the defendant brought the motion using the McDonnell Douglas test rather than the statutory test under Lab. Code 1102.6, as explicated in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.  The decision also holds that the same Lawson test applies under Gov. Code 8547.10,… Read More

This decision rejects an employer's argument that a worker must first prove that the employer was the "hiring entity" before applying the ABC test to determine whether a worker is an employee as opposed to an independent contractor. Read More

It is unlawful for an employer to prevent workers from leaving the employer's premises during a meal break.  Doing so converts the meal break into an on-duty meal break, entitling the employee to premium pay. Read More