Labor & Employment

Employee's claims against his employer for promising a pay raise to all employees if they voted against a union--and then not following through and retaliating against employee when he protested--was preempted by the NLRA as all of the claims alleged conduct that was actually or arguably protected or prohibited under the NLRA. Read More

The relationship between a medical resident and a hospital residency program is primarily an employment relationship, not a teaching relationship.  Accordingly, in judging a resident's claim that she was dismissed from the residency program due to gender discrimination and retaliation for her complaints about gender discrimination, the jury should not be instructed to give academic deference to the residency program's… Read More

This decision holds that Lab. Code 925 is enforceable in federal court.  A California employee who was  not represented by counsel when he signed an employment agreement may void clauses in the contract that choose another state as the forum or another state's law as applicable law.  Having done so, the employee may enforce the contract in federal court, cleansed… Read More

Lab Code 925 prohibits employment contracts from containing provisions requiring an employee to litigate or arbitrate a claim in another state if the claim arises in California or depriving the employee of the substantive protection of California law in a suit arising in California.  A provision that violates the section is voidable by the employee, after which the matter shall… Read More

An employee did not agree to the employer's arbitration policy that was stated only in an employee handbook which the employee acknowledged receiving but did not sign anything agreeing to the employer's policies, particularly as the acknowledgement of receipt of the handbook didn't reference arbitration and the handbook itself said it was not an agreement.  The fact that the handbook… Read More

Lab. Code 970 prohibits an employer from inducing an employee to relocate and accept employment by means of knowingly false representations about the kind, character, or existence of work or how long it will last.  Here, the trial court erred in granting the defendant employer summary judgment on plaintiff's claim under section 970.  The at-will employment contract that the plaintiff… Read More

There is no right to a jury trial in a PAGA suit.  In such a suit a private plaintiff brings on the state's behalf a claim that otherwise would be handled by an administrative agency subject to trial court review, both without jury.  It would be anomalous to grant the private plaintiff greater rights than the administrative agency in whose… Read More

Lab. Code 1102.6 prescribes the burdens of proof on a claim for retaliation against a whistleblower in violation of Lab. Code 1102.5.  First, the employee-whistleblower bears the burden of proving by a preponderance of the evidence that retaliation against him for whistleblowing was a contributing factor in the employer’s taking adverse employment action against him.  Then, the employer bears the… Read More

Following Usher v. White (2021) 64 Cal.App.5th 883, this decision holds that, under Lab. Code 558.1, an owner, officer, director, or managing agent of the employer may be held liable for the employer's violation of an IWC wage order or of certain wage and hour sections of the Labor Code if the individual defendant had some oversight of the employer's… Read More

The Federal Motor Carrier Safety Administration's regulations under the Federal Motor Carrier Safety Act preempt California state laws governing meal and rest breaks for truckers, both long-haul and short-haul, in accordance with the Administration's interpretation of its own regulations to which deference is owed. Read More

The trial court did not abuse its discretion in denying class certification in this wage and hour case.  Insofar as plaintiff claimed that the employer's rounding of hours worked was illegal, the trial court properly found that noncommon issues predominated because it had no single rounding policy but left matters up to managers at its different locations.  Plaintiff's theory that… 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

Mrs. Ek, while working at See's, caught COVID allegedly due to See's negligent failure to implement procedures to prevent spread of infection.  While Mrs. Ek was home sick, she infected Mr. Ek, who later died of COVID.  This decision holds that the Workers Comp. Act does not preempt Mr. Ek's heirs' wrongful death suit.  The derivative injury doctrine under which… Read More

A volunteer working for a charitable organization without the expectation of payment for his work is not an employee for purposes of state wage and hour laws.  The trial court did not abuse its discretion in denying certification of an alleged class of all workers for the defendant charity who did not receive pay for their work.  There was a… Read More

Affirming an order denying an employer's motion to compel arbitration of the worker's wage and hour, retaliation and discrimination in employment claims, this decision holds the agreement was at least minimally procedurally unconscionable as it was an adhesion contract.  It also holds two provisions substantively unconscionable, one requiring any claims to be brought within a year of discovery (despite statutes… Read More

Before filing a PAGA suit, a plaintiff must send a pre-suit notice to the Labor and Workforce Development Agency and the employer describing the facts and theories to support the alleged violation. Lab. Code 2699.3.  This decision holds that at least when the notice reveals a violation that is likely to have affected more workers than the individual prospective plaintiff… Read More

The plaintiff's alleged failure to give adequate pre-suit notice to the Labor and Workforce Development Agency and the employer before filing a PAGA suit is an affirmative defense which the employer waives either by not pleading it in the answer or by, even if so pleaded, not pursuing it as a defense by pretrial motion or at trial. Read More

Lab. Code 226.3 provides for heightened civil penalties in connection with an employer's violation of wage statement requirements of Lab. Code 226.  Disagreeing with Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal.App.5th 667, this decision holds that by its plain language, section 226.3 allows for assessment of those heightened civil penalties only when the employer fails to provide… Read More

California's wage statement law (Lab. Code 226) applies to workers based in California who do not work half the time in a different state.  Here, the plaintiff airline crew members were based in California, beginning and ending each sequence of flights there.  They did not spend half their work  time in any other state, so California's wage statement law applied… Read More

In ruling on a motion for approval of a settlement of a PAGA claim, the trial court should apply the "fair, adequate and reasonable" standard applied to approval of class action settlements. Because many of the factors used to evaluate class action settlements bear on a settlement’s fairness—including the strength of the plaintiff’s case, the risk, the stage of the… Read More