Labor & Employment

Disagreeing with Turrietta v. Lyft, Inc. (2021) 2021 Cal. App. LEXIS 815, this decision holds that the plaintiff in one PAGA action is sufficiently aggrieved by an unfair settlement of a different plaintiff's parallel PAGA suit to have standing to appeal from the judgment following approval of settlement in the other action--so long as the appellant became a party to… Read More

A school owes a duty to protect students from sexual abuse by school employees, even if the school does not have actual knowledge of a particular employee’s history of committing, or propensity to commit, such abuse.  However, to hold a school liable for failure to report suspected child abuse as required by Pen. Code, § 11164 et seq., the plaintiff… Read More

The district court erred in dismissing plaintiff's sex discrimination/hostile working environment claim.  The employer failed to take immediate corrective action when a customer at the nail salon sexually propositioned plaintiff, a male pedicurist.  Instead of doing so, the employer sent plaintiff back to complete the pedicure of the offending customer.  Also, the later remarks by fellow workers about the incident… Read More

As in Turrietta v. Lyft, Inc. (2021) 2021 Cal. App. LEXIS 815, the plaintiff in a parallel wage and hour case appealed from an order approving a class action and PAGA claim settlement.  Contrary Turrietta, but without citing it, this decision holds that even though he opted out of the class, the objector had standing to appeal from the final… Read More

Lacy, an employee, filed a complaint with the state Department of Labor claiming her employer, Crestwood, had retaliated against her in violation of Lab. Code 98.7 for complaining about having been assaulted at work.  The DLSE commenced an investigation of the complaint.  Meanwhile, Crestwood filed a petition to compel arbitration under the arbitration clause in Lacy's employment contract.  The trial… Read More

Agreeing with decisions from many other districts, this decision holds that an employer cannot compel arbitration of its worker's PAGA claim, as the claim is by the state, not by the worker who signed the arbitration agreement.  Iskanian v. CLS Transportation (2014) 59 Cal.4th 348 remains good law and was not undermined by Epic Systems Corp. v. Lewis (2018) 138… Read More

In a FEHA suit, a prevailing defendant may not recover its fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965(b).)  The employer may compel arbitration of FEHA claims, but only if the arbitrator may award any remedy a… Read More

Because the employer did not keep adequate records to show how much of an employee's pay was based on commissions, the trial court correctly divided the entire compensation received by the employee during the week by 40 to determine his base pay for calculating the 150% of base pay owed for overtime work.  Had the employer kept better records, the… Read More

Under the Displaced Janitor Opportunity Act (Lab. Code 1060 et seq.) a successor janitorial company must hire the janitorial workers of a predecessor company at the same site for at least 60 days after taking over the site.  Here, the building owner supposedly terminated the janitorial service contract on the 13th of the month and claimed that there were no… Read More

AB 5 and its amended version Lab. Code 2778 et seq. does not violate the First or Fourteenth Amendments in its application to freelance journalists and others who supply creative content to newspapers, films and other media.  The regulation does not single out those engaged in speech for harsher treatment.  The exemption for some freelancers may not be as broad… Read More

Newspaper delivery carriers sued to recover their mileage expenses under Lab. Code 2082, claiming that defendant had misclassified them as independent contractors, rather than as employees.  On that claim, the control plus test set out in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 governs whether a worker is an employee.  Newspaper carriers were… Read More

The plaintiff in a parallel PAGA suit against the same employer does not have standing to move to vacate or appeal from a judgment entered after the trial court approved settlement of a different plaintiff's similar PAGA suit against the employer.  To have standing to appeal one must be both a party to the action and be aggrieved by the… Read More

While the ABC test of employee v. independent contractor status applies retroactively, Prop. 22's classification of some gig workers as independent contractors applies only prospectively.  So GrubHub drivers, if employees under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, are entitled to back wages for the period before Prop. 22's adoption.  The… Read More

Plaintiff adequately exhausted her administrative remedies under the FEHA by filing a complaint with the DFEH that nearly correctly named her employer's dba Hooman Chevrolet (instead of Hooman Chevrolet of Culver City) but got the corporate name of the employer wrong Hooman Enterprises, Inc. (instead of NBA Automotive, Inc.).  The administrative complaint also correctly named the plaintiff's supervisor and other… Read More

AB 51 (Stats. 2019 ch. 711) enacted Lab. Code 432.6 which prohibits employers from requiring employees to agree to arbitration as a condition of employment, and states that it is a condition of employment if the employer requires the employee to opt out or take any affirmative step to avoid agreeing to arbitration.  Over a strong dissent, the majority opinion… Read More

Disagreeing with Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289 and Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, this decision holds that Equilon is a joint employer, at least for wage and hour regulation purposes, of the employees of the franchisees that run its gas stations.  For wage and hour purposes, joint employment is governed by the… Read More

Following Reid v. Google, Inc. (2010) 50 Cal.4th 512, this decision holds that the trial court erred in excluding "stray remarks" evidence in this employment discrimination case on the basis of age.  The stray remark, by an assistant dean, was that she wanted someone younger (than the applicant, not plaintiff) for a position different than any plaintiff held or applied… Read More

A court has inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable. As a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them.  Here, the PAGA claim was based… Read More

Generally, a person hiring an independent contractor to perform work is  not liable for injuries suffered by the contractor's employees in performing that work under the Privette doctrine.  There are two exceptions to this rule.  The Kinsman exception which holds a hirer liable if it is a landowner and fails to disclose some tatent dangerous condition of the property to… Read More

Applying Martinez v. Combs (2010) 49 Cal.4th 35 regarding the definition of employer under IWC orders, this decision affirms a summary judgment finding that a bail bond surety company is not the employer of bail bondsmen's fugitive recovery personnel.  The surety company did not hire, fire or exercise control over those personnel.  The surety company's contracts with the bail bondsmen… Read More