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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.

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Ventura County Deputy Sheriffs' Assn. v. County of Ventura (CA2/6 B300006 3/3/21) Public Records Act/Peace Officer Conduct


Senate Bill No. 1421 (SB 1421) went into effect on January 1, 2019.  Among other things, it amended Penal Code section 832.7 to allow disclosure under the California Public Records Act (CPRA) of records relating to officer-involved shootings, serious use of force and sustained findings of sexual assault or serious dishonesty.  (§ 832.7, subd. (b)(1).)  This statute renders the records non-confidential and applies to “any file maintained under [the] individual’s name by his or her employing agency.”  (§ 832.8, subd. (a).)  Previously, these records could be accessed only through a Pitchess motion pursuant to Evidence Code sections 1043 and 1045. 


The Ventura County Deputy Sheriffs Association (VCDSA) sued the County of Ventura and Bill Ayub, Sheriff of Ventura County (Sheriff), to enjoin section 832.7’s application to records involving peace officer conduct and incidents occurring before January 1, 2019, the statute’s effective date.  The trial court issued a preliminary injunction. 


In the meantime, our colleagues in the First District issued Walnut Creek Police Officers’ Assn v. City of Walnut Creek (2019) 33 Cal.App.5th 940 (Walnut Creek), which rejected the assertion “that applying the 2019 amendments to compel disclosure of records created prior to 2019 constitutes an improper retroactive application of the new law.”  (Id. at p. 942.)  The court found the “argument . . . without merit,” reasoning that “[a]lthough the records may have been created prior to 2019, the event necessary to ‘trigger application’ of the new law – a request for records maintained by an agency – necessarily occurs after the law’s effective date.”  (Ibid; see Carlsbad Police Officers Assn v. City of Carlsbad (2020) 49 Cal.App.5th 135, 144 & fn. 5 (Carlsbad).) 


The trial court did not follow Walnut Creek.  It concluded section 832.7 applies prospectively only, entered judgment for VCDSA and issued a permanent injunction.  Claudia Y. Bautista, in her capacity as Public Defender of Ventura County (Public Defender), appeals. 


In the absence of a reason to depart from Walnut Creek, and for reasons stated in Becerra v. Superior Court (2020) 44 Cal.App.5th 897 (Becerra), we reverse the judgment and dissolve the permanent injunction.


Contreras v. Super. Ct. (CA2/5 B307025 3/1/21) PAGA/Arbitration


Petitioners Robina Contreras and Gabriel Ets-Hokin filed suit against Zum Services, Inc. (Zum) under the Private Attorneys General Act (PAGA).  (Lab. Code, § 2699 et seq.)


Petitioners alleged Zum misclassified them and others as independent contractors, thereby violating multiple provisions of the California Labor Code.  Zum moved to compel arbitration based on agreements petitioners had signed at the beginning of their employment.  The trial court granted the motion, ordering into arbitration “the issue of arbitrability” of petitioners’ suit – whether they are “aggrieved employees” entitled to raise PAGA claims.  Petitioners now challenge the trial court’s order, arguing that the delegation of that question to an arbitrator frustrates the purpose of PAGA and is therefore prohibited under California law.  We agree and reverse the order compelling arbitration.


Donohue v. AMN Services, LLC (SC S253677 2/25/21) Meal Periods/Rounding & Rebuttable Presumption 


Under California law, employers must generally provide employees with one 30-minute meal  period that begins no later than the end of the fifth hour of work and another 30-minute meal period that begins no later than the end of the tenth hour of work.  (Lab. Code, § 512, subd. (a); Industrial Welfare Commission (IWC) wage order No. 4-2001, § 11(A) (Wage Order No. 4).)  If an employer does not provide an employee with a compliant meal period, then “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal . . . period is not provided.”  (Lab. Code, § 226.7, subd. (c); Wage Order No. 4, § 11(B).)   


In this case, we decide two questions of law relating to meal periods.  First, we hold that employers cannot engage in the practice of rounding time punches — that is, adjusting the hours that an employee has actually worked to the nearest preset time increment — in the meal period context.  The meal period provisions are designed to prevent even minor infringements on meal period requirements, and rounding is incompatible with that objective.  Second, we hold that time records showing noncompliant meal periods raise a rebuttable presumption of meal period violations, including at the summary judgment stage. 


In light of our holdings, we reverse the Court of Appeal’s judgment and remand the matter to permit either party to bring a new summary adjudication motion as to the meal period claim.  (See TRB Investments, Inc. v. Fireman’s Fund Ins. Co. (2006) 40 Cal.4th 19, 23, 31–32 (TRB Investments).)  The remand offers the parties the opportunity to present evidence and arguments bearing on the question of liability in light of our analysis here.

McGroarty v. L.A. Unified School Dist. (CA2/1 B306946 2/24/21) University Intern/Teacher Tenure


Michael McGroarty appeals from a judgment in favor of respondents Los Angeles Unified School District (LAUSD) and Principal Kate Sohn.  The dispute at issue is under what conditions someone who has served a school district as a university intern acquires permanent status, i.e., tenure.


McGroarty taught high school English for LAUSD as a university intern during the 2016–2017 school year, while simultaneously enrolled in coursework towards a teaching credential at the University of California Los Angeles Extension (UCLA).  In June 2017, LAUSD rehired him on an intern contract for the 2017–2018 school year.  In late July 2017, he completed his coursework at UCLA, and the next month, UCLA applied on his behalf for a regular teaching credential from the Commission on Teacher Credentialing (CTC).  The CTC had not issued McGroarty’s credential by the start of the 2017–2018 school year, so he began the school year teaching under his intern credential and intern contract.


McGroarty received his regular credential from the CTC on October 12, 2017, and notified LAUSD he wished to enter into a new contract as a non-intern probationary employee.  LAUSD required certain paperwork from Sohn, McGroarty’s principal, which she completed in late November 2017.  McGroarty and LAUSD executed his new contract on December 6, 2017.


McGroarty completed the 2017–2018 school year and LAUSD rehired him for the 2018–2019 school year.  In February 2019, LAUSD informed him he would not be reelected for the following school year and would be released from service.


McGroarty filed a petition for a writ of mandate as well as a complaint for due process violations against LAUSD and Sohn seeking reinstatement and damages.  He contended that under Education Code section 44466, which governs tenure for university interns, he had acquired permanent status at the commencement of the 2018–2019 school year.  McGroarty argued he had satisfied the requirements of section 44466 by completing his university coursework in advance of the 2017–2018 school year, serving that school year in a credentialed teaching position (first under his intern credential, and then his regular credential), then beginning the 2018–2019 school year under his regular credential.


LAUSD and Sohn opposed the petition, arguing that section 44466 required McGroarty to serve the complete 2017–2018 school year under a regular credential.  They contended McGroarty did not begin service under his regular credential until December 2017, when he registered his credential with LAUSD and entered into his new contract.  The trial court agreed, denied McGroarty’s petition, and dismissed his due process claims as moot.


On appeal, McGroarty argues that section 44466 did not require him to serve the 2017–2018 school year under a regular credential, but only required that he serve that school year under some credential, even an intern credential, after completing his internship coursework at UCLA.  So long as he was serving under his regular credential by the outset of the 2018–2019 school year, McGroarty contends he acquired tenure.  


We conclude, as did the trial court, that section 44466 contemplates that former university interns serve a complete year under a regular credential before acquiring tenure.  Accordingly, we affirm.


Bernstein v. Virgin America (9th Cir. 19-15382, 20-15186 2/23/21) Flight Attendants/Wage & Hour/Preemption


The panel affirmed in part, reversed in part, and vacated the district court’s judgment in a putative class action, brought by a plaintiff class of California-based flight attendants who were employed by Virgin America, Inc., alleging that Virgin violated California labor laws.


During the Class Period, approximately 25% of Virgin’s flights were between California airports. Class members spent approximately 31.5% of their time working within California’s borders. The district court certified a Class of all individuals who worked as California-based Virgin flight attendants during the period from March 18, 2011; a California Resident Subclass; and a Waiting Time Penalties Subclass.


As a threshold matter, the panel held that the dormant Commerce Clause did not bar applying California law in the context of this case.


The panel reversed the district court’s summary judgment to plaintiffs on their claims for minimum wage and payment for all hours worked. Specifically, the panel held that Virgin’s compensation scheme based on block time did not violate California law. The fact that pay was not specifically attached to each hour of work did not mean that Virgin violated California law.


The panel held that under the circumstances of this case, Virgin was subject to the overtime strictures of California Labor Code § 510 as to both the Class and California Resident Subclass.


The panel affirmed the district court’s summary judgment to plaintiffs on their rest and meal break claims. The panel rejected Virgin’s contention that federal law preempted California’s meal and rest break requirements in the aviation context because federal law occupied the field. Specifically, the Federal Aviation Act did not occupy the field of flight attendant meal and rest breaks. Also, conflict preemption did not bar application of California’s meal and rest break requirements. Finally, the meal and rest break requirements were not preempted under the Airline Deregulation Act. Extrapolating the principles of Sullivan v. Oracle Corp., 254 P.3d 237 (Cal. 2011), the panel held that California’s meal and rest break requirements applied to the work performed by the Class and California Resident Subclass.


Applying Ward v. United Airlines, Inc., 466 P.3d 309, 321 (Cal. 2020) (holding that California Labor Code § 226(a) applied to workers who do not perform the majority of their work in any one state, but who are based for work purposes in California), the panel affirmed the district court’s summary judgment to plaintiffs on their wage statement claim. The panel affirmed the district court’s summary judgment to plaintiffs on their waiting time penalties claim. Specifically, the panel held that although there was no California Supreme Court case specifically interpreting the reach of the waiting time penalties statute – Cal. Labor Code §§ 201 and 202 – for interstate employees, the analogy to Cal. Labor Code 226 was compelling. Because the California Supreme Court held § 226 to apply under these circumstances, the panel held that §§ 201 and 202 applied as well.


The panel affirmed the district court’s decision on class certification. Specifically, the panel held that the applicability of California law has been adjudicated on a class-wide or subclass-wide basis, and thus no individual choice-of-law analysis was necessary.


The panel reversed the district court’s holding that Virgin was subject to heightened penalties for subsequent violations under California’s Private Attorney General Act. Virgin was not notified by the Labor Commissioner or any court that it was subject to the California Labor Code until the district court partially granted plaintiff’s motion for summary judgment. On this basis, the panel held that Virgin was not subject to heightened penalties for any labor code violation that occurred prior to that point.


The panel held that since it reversed in part the district court’s judgment on the merits, California law required that the panel vacate the attorneys’ fees and costs award. The panel remanded the issue to the district court.


Transp. Div. of Int’l Ass’n-Smart v. FRA (9th Cir. 19-71787 2/23/21) Federal Railroad Administration/One-Person Crew Rule/Preemption


The panel dismissed a petition for review filed by two unions; granted petitions filed by California, Washington, and Nevada; vacated the Federal Railroad Administration (“FRA”)’s Order, 84 Fed. Reg. 24,735, purporting to adopt a nationwide maximum one-person crew rule and to preempt any state laws concerning that subject matter; and remanded to the FRA.


As a threshold matter, the panel addressed arguments concerning jurisdiction raised by the intervenor Association of American Railroads. First, the panel dismissed the Unions’ petition because venue was not proper under 28 U.S.C. § 2343 where the Unions’ principal offices were not in the Ninth Circuit. Second, the panel held that there was jurisdiction over the petitions filed by the States because all three States were sufficiently aggrieved to invoke jurisdiction under 28 U.S.C. § 2344.


The panel held that the Order did not implicitly preempt state safety rules.


Turning to the merits, the panel held that the FRA failed to comply with the Administrative Procedures Act (“APA”)’s minimum notice-and-comment provisions in issuing the Order. Specifically, the panel held that there was nothing in the FRA’s March 2016 Notice of Proposed Rulemaking (“NPRM”) (proposing a national minimum requirement of two member crews for trains) to put a person on notice that the FRA might adopt a national one-person crew limit.


Finally, the panel held, on this record, that the Order was arbitrary and capricious, and must be vacated. Specifically, the panel held that the Order’s basis for its action – that two-member crews were less safe than one-person crews – did not withstand scrutiny. Also, the panel held that the FRA’s contemporaneous explanation – that indirect safety connections might be achieved with fewer than two crew members – was lacking. Despite the deference due FRA decisions, the panel concluded that the States met their burden of showing that the issuance of the Order violated the APA.


Judge Christen concurred, and joined parts I, II, III, and IV.C of the opinion. She would vacate the notice of withdrawal solely based on the conclusion that the Notice of Proposed Rulemaking did not provide adequate notice or opportunity to comment. She would not reach whether the notice of withdrawal negatively preempted state laws or whether the FRA provided a satisfactory explanation for the notice.


Howard v. HMK Holdings (9th Cir. 18-55923 2/23/21) FHAA/Interactive Process


The panel affirmed the district court’s grant of summary judgment in favor of the defendants in an action under the Fair Housing Amendments Act. 


Plaintiffs Glenn Howard et al. sought to extend their tenancy in defendants’ property due to Howard’s medical condition. They alleged violation of 42 U.S.C. § 3604(f)(3)(B), which prohibits discrimination in the form of “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a] person equal opportunity to use and enjoy a dwelling.” The panel held that, in order to establish a claim under § 3604(f)(3)(B), a plaintiff must show that absent an accommodation, his disability would cause him to lose an equal opportunity to use and enjoy a dwelling. The panel agreed with the district court that because plaintiffs did not establish a causal link between Howard’s medical condition and the requested accommodation, defendants were under no obligation to extend the tenancy-termination date. 


Plaintiffs also alleged that defendants were liable under the FHAA for failing to engage in an interactive process with them. Agreeing with the Third and Sixth Circuits, the panel held that there is no standalone liability under the FHAA for a landlord’s failure to engage in an interactive process.


Brown v. L.A. Unified School Dist. (CA2/8 B294240 2/18/21) FEHA/Failure to Accommodate & Retaliation


Appellant Laurie Brown (Brown) has been a teacher employed by the Los Angeles Unified School District (LAUSD) since 1989.  In 2015, LAUSD installed an updated Wi-Fi system at the school where Brown taught.  She soon began to experience headaches and nausea, and believed the electromagnetic frequency of the new wireless system was the cause.  She requested various accommodations from LAUSD, but ultimately sued, alleging LAUSD discriminated against her based on her “electromagnetic hypersensitivity,” failed to accommodate her condition, and retaliated against her—in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.).


Brown appeals from a judgment of dismissal entered after the trial court sustained LAUSD’s demurrer to her first amended complaint (FAC) without leave to amend.  She contends the trial court erred in sustaining the demurrer because she pled sufficient facts in support of each of her claims.  She further contends the trial court abused its discretion by not granting her leave to amend the FAC.


We conclude Brown adequately pled her cause of action for failure to provide reasonable accommodation for her disability.  We reverse on this cause of action only.  Otherwise, the judgment is affirmed.


Crestwood Behavioral Health, Inc. v. Super. Ct. (CA1/5 A160523 2/17/21) PAGA/Venue


In this writ proceeding, we must determine what venue is proper in an action filed under the Private Attorneys General Act (the Act; Lab. Code, § 2698 et seq.).  In the challenged order, the respondent court concluded that claims under the Act may properly be tried in a county where petitioner Crestwood Behavioral Health, Inc. (Crestwood) allegedly committed Labor Code violations against some of its employees, rather than only in the counties where real party in interest Maricris Fragoza was employed or where Crestwood has its principal place of business.  Crestwood seeks a writ of mandate directing respondent court to grant its motion to transfer venue.  We conclude that the trial court did not err and deny the petition.


Lawson v. PPG Architectural Finishes, Inc. (9th Cir. 2020) 982 F.3d 752 (SC S266001/9th Cir. 19-55802 review granted 2/10/21) 


Request under California Rules of Court rule 8.548, that the California Supreme Court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Does the evidentiary standard set forth in Labor Code section 1102.6 replace the rest of test of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 as the relevant evidentiary standard for retaliation claims brought pursuant to Labor Code section 1102.5? Review granted/brief due.



9th Cir. order


Hernandez v. State Personnel Board (CA4/2 E072444 2/10/21) Police Officer Termination/Domestic Violence with Gun


Petitioner and appellant Anthony Hernandez was convicted of misdemeanor domestic violence after choking his girlfriend.  The California Department of Correction and Rehabilitation (Department) then terminated him from his position as a correctional officer.  The Department stated that, because of his domestic violence conviction, federal law prohibited him from carrying a firearm, which he needed for the job.


We must decide whether the Department acted reasonably in terminating Hernandez.  It is undisputed that federal law makes it a felony to possess a firearm after being convicted in any court of misdemeanor domestic violence, which is defined in part as the use of physical force by “a person similarly situated to a spouse” of a victim.  Disputed here is whether Hernandez was “similarly situated to a spouse” of his girlfriend, given that he had been dating her five or six months and did not share a permanent residence with her.  We hold, in line with the federal case law, that the evidence is sufficient to support the Department’s determination that Hernandez was “similarly situated to a spouse” of his victim under these circumstances.  Accordingly, the Department acted reasonably in terminating him, and we affirm.


Clarke v. AMN Services (9th Cir. 19-55784 2/8/21) FLSA Overtime Pay


The panel reversed the district court’s summary judgment in favor of the defendant and remanded in an action under the Fair Labor Standards Act.


When plaintiffs worked as clinicians for defendant AMN Services, LLC, a healthcare staffing company, they were paid both a designated hourly wage and an amount denominated a weekly per diem benefit. On behalf of two certified classes of employees who had worked for AMN at facilities more than 50 miles away from their tax homes, plaintiffs alleged that their weekly per diem benefits were improperly excluded from their regular rate of pay under the FLSA, thereby decreasing their wage rate for overtime hours.


The panel held that the per diem benefits functioned as compensation for work rather than as reimbursement for expenses incurred by traveling clinicians, and the benefits were thus improperly excluded from plaintiffs’ regular rate of pay for purposes of calculating overtime pay. The panel relied on a combination of factors, including the tie of the per diem deductions to shifts not worked regardless of the reason for not working; a “banking hours” system; the default payment of per diem on a weekly basis, including for days not worked away from home, without regard to whether any expenses were actually incurred on a given day; and the payment of per diem in the same amount, but as acknowledged wages, to local clinicians who did not travel.


The panel reversed the district court’s grant of summary judgment and remanded for the district court to enter partial summary judgment in plaintiffs’ favor as to whether the per diem payments to class member employees should be considered part of the employees’ rate of pay and to conduct further proceedings.


Manderson-Saleh v. Regents of the University of California (CA4/1 D076652 2/5/21) UC System/Pension Plan Beneficiary


Amira Manderson-Saleh is the daughter of an oncology nurse (Mother) who worked at the University of California at San Diego (UCSD) for about 12 years until she retired shortly before her death.  Mother earned a pension under rules permitting the employee to designate a beneficiary to receive specified monthly pension benefits upon the employee’s death.


When Manderson-Saleh claimed her rights as the designated beneficiary shortly after Mother’s death, The Regents of the University of California (Regents) denied her claim, finding Mother did not properly identify Manderson-Saleh as the contingent beneficiary before her death.  Thus, none of these earned pension benefits were paid, and instead they were retained by the Regents.


Manderson-Saleh filed a complaint against the Regents.  In her amended pleading, she alleged breach of contract and alternatively sought a writ of mandate to overturn the Regents’ decision.  (Code Civ. Proc., § 1085.) The Regents demurred only to the contract claim, and the court sustained the demurrer without leave to amend.


The court then conducted a separate proceeding on the section 1085 mandate petition.  After evaluating the parties’ written evidence, the court found Manderson-Saleh was not entitled to relief because the Regents had the right to strictly apply its rule that contingent-annuitant pension benefits are conditioned on the Regents receiving a signed beneficiary-election form before the employee’s death, and the Regents received this form one week after Mother’s death.  The court rejected Manderson-Saleh’s different interpretation of the rule and her arguments this rule was satisfied by the Regents receiving Mother’s election worksheet before her death.  


The court entered a final judgment sustaining the demurrer and denying the mandate petition.  Manderson-Saleh challenges both rulings. 


We determine the court properly sustained the demurrer on the contract claim without leave to amend.  But we conclude the court erred in denying the mandate petition.  The undisputed evidence establishes Mother substantially complied with the Regents’ pension rules and the Regents abused its discretion in failing to consider and apply the substantial compliance doctrine in evaluating Manderson-Saleh’s claim.  We reverse and remand with directions for the superior court to grant the mandamus petition and to issue a writ ordering the Regents to grant Manderson-Saleh’s contingent-annuitant pension claim.


Wilmot v. Contra Costa County Employee's Retirement Association (CA1/2  A152100A 2/5/21) PEPRA/Pension Forfeiture for Criminal Conviction


A veteran county employee decided to retire, and in December 2012, he submitted his application for retirement to the county’s retirement authority.  On January 1, 2013, the California Public Employees’ Pension Reform Act of 2013 (Pension Reform Act or PEPRA) took effect.  Included in that measure is a provision that mandates the forfeiture of pension benefits/payments if a public employee is convicted of “any felony under state or federal law for conduct arising out of or in the performance of his or her official duties.”  (Gov. Code, § 7522.72, subd. (b)(l) (section 7522.72).)  In February 2013, the employee was indicted for stealing county property.  In April 2013, the county pension authority approved the employee’s retirement application, fixing the employee’s actual retirement on the day he submitted that application in December 2012.  Also in April 2013, the employee began receiving monthly pension checks starting from December 2012.  In December 2015, the employee pled guilty to embezzling county property over a 13-year period ending in December 2012.  Thereafter, the county pension authority reduced the employee’s monthly check in accordance with the forfeiture provision.


The question presented is whether the forfeiture provision applies to the employee.  We conclude the provision does apply to the employee because, as a matter of statutory construction, the employee had merely initiated the process of retiring.  We also conclude that even if the employee was retired, and the forfeiture provision was applied to him, there would be no violation of the California Constitution’s provision against the undue impairment of the employee’s contract with his governmental employer, nor would that application constitute an ex post facto law.


Alvarez v. Altamed Health Services Corporation (CA2/8 B305155 2/4/21) Employment Arbitration


Respondent Erendira Cisneros Alvarez sued appellants Altamed Health Services Corporation, Altamed Health Services Network, Inc. and Joumana Rechdan (collectively Altamed) on claims related to her employment with Altamed.  Altamed appeals from the trial court’s order denying its motion to compel arbitration of the claims.  Altamed contends the parties had a valid arbitration agreement which was not revocable due to procedural or substantive unconscionability or the failure of Altamed’s CEO to sign it.  We agree, although we do sever one provision.  We find the trial court erred in denying the motion to compel arbitration, order Paragraph 5 authorizing review by a second arbitrator severed, and remand the matter to enter an order granting the motion.

Salinas v. United States Railroad Retirement Board (US 19–199 2/3/21) Railroad Retirement Disability Benefits/Judicial Review


In 1992, petitioner Manfredo M. Salinas began seeking disability benefits under the Railroad Retirement Act of 1974 (RRA) based on serious injuries he suffered during his 15-year career with the Union Pacific Railroad. Salinas’ first three applications were denied, but he was granted benefits after he filed his fourth application in 2013. He timely sought reconsideration of the amount and start date of his benefits. After reconsideration was denied, he filed an administrative appeal, arguing that his third application, filed in 2006, should be reopened because the U. S. Railroad Retirement Board (Board) had not considered certain medical records. An intermediary of the Board denied the request to reopen because it was not made “[w]ithin four years” of the 2006 decision, and the Board affirmed. 20 CFR §261.2(b). Salinas sought review with the Fifth Circuit, but the court dismissed the petition for lack of jurisdiction, holding that federal courts cannot review the Board’s refusal to reopen a prior benefits determination.


Held: The Board’s refusal to reopen a prior benefits determination is subject to judicial review. Pp. 4–13.


(a) The RRA makes judicial review available to the same extent that review is available under the Railroad Unemployment Insurance Act (RUIA). See 45 U. S. C. §231g. Thus, to qualify for judicial review, the Board’s refusal to reopen Salinas’ 2006 application must constitute “any final decision of the Board.” §355(f). It does. Pp. 4–10.


(1) The phrase “any final decision” “denotes some kind of terminal event,” and similar language in the Administrative Procedure Act has been interpreted to refer to an agency action that “both (1) mark[s] the consummation of the agency’s decision-making process and (2) is one by which rights or obligations have been determined, or from which legal consequences will flow.” Smith v. Berryhill, 587 U. S. ___, ___, ___. The Board’s refusal to reopen Salinas’ 2006 denial of benefits satisfies these criteria. First, the decision was the “terminal event” in the Board’s administrative review process. After appealing the intermediary’s denial of reopening to the Board, Salinas’ only recourse was to seek judicial review. Second, the features of a reopening decision make it one “ by which rights or obligations have been determined, or from which legal consequences will flow.” For example, a reopening is defined as “a conscious determination . . . to reconsider an otherwise final decision for purposes of revising that decision.” 20 CFR §261.1(c). It therefore entails substantive changes that affect benefits and obligations under the RRA. The Board reads §355(f )’s earlier reference to “any other party aggrieved by a final decision under subsection (c)” to mean that each authorized party may seek review of only “a final decision under” §355(c). Section 355(f ), however, uses the broad phrase “any final decision” without tying it to the earlier reference to §355(c)— a notable omission, since Congress used such limiting language elsewhere in §355, see §355(c)(5). Pp. 6–8.


(2) Any ambiguity in the meaning of “any final decision” must be resolved in Salinas’ favor under the “strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. 480, 486. The Board attempts to rebut that presumption by arguing that various cross-references within §355 prove that §355(f ) and §355(c) are coextensive. There are several indications, however, that §355(f ) is broader than §355(c). For example, under §355(g), determinations that certain unexpended funds may be used to pay benefits or refunds are subject to review exclusively under §355(f ), yet the Board concedes that such decisions fall outside §355(c). Pp. 8–10.


(b) The Board’s remaining arguments also fall short. First, the Board analogizes §355(f ) to the judicial-review provision addressed in Califano v. Sanders, 430 U. S. 99. But the latter provision contains an express limitation that §355(f ) does not, distinguishing Califano from this case. Second, the Board argues that reopening does not qualify for judicial review because it is simply a “refusal to make a new determination” of rights or liabilities, like the denial of reopening in Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449. The statute in Your Home, however, did not implicate the presumption in favor of judicial review and was narrower than §231g, which simply incorporates §355(f ) into the RRA. Finally, the fact that the Board could decline to offer reopening does not mean that, having chosen to provide it, the Board may avoid the plain text of §355(f ). The Board’s decision to grant or deny reopening is ultimately discretionary, however, and therefore subject to reversal only for abuse of discretion. See 20 CFR §261.11. Pp. 10–13.


765 Fed. Appx. 79, reversed and remanded.


SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS, C. J., BREYER, KAGAN, and KAVANAUGH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, GORSUCH, and BARRETT, JJ., joined.


Vazquez v. Jan-Pro Franchising Int’l (9th Cir. 17-16096 2/2/21) Dynamex/Wage and Hour


Having received the California Supreme Court’s answer to a certified question, the panel amended and reissued its opinion, and vacated the district court’s summary judgment in favor of Jan-Pro Franchising International, Inc. (“JanPro”) in a putative class action involving back wages and overtime claims.


Jan-Pro, an international janitorial cleaning business, developed a “three-tier” franchising model to avoid paying its janitors minimum wages and overtime compensation by misclassifying them as independent contractors.


The panel held that the test in Dynamex Ops. W. Inc. v. Superior Court, 416 P.3d 1 (Cal. 2018) (adopting the so-called “ABC test” for determining whether workers are independent contractors or employees under California wage order laws), which post-dated the district court’s decision, applied retroactively to this case.


In 2008, a putative class action was filed in the District of Massachusetts against Jan-Pro; and in 2017, the First Circuit affirmed the district court’s dismissal of the complaint, but not on the merits. Depianti v. Jan-Pro Franchising Int’l, Inc., 873 F.3d 21 (1st Cir. 2017).


The panel rejected Jan-Pro’s argument that the Depianti final judgment was entitled to preclusive effect in this litigation under either the principle of res judicata or the doctrine of law of the case. The panel held that plaintiffs were not in privity with Depianti for res judicata purposes under Massachusetts law; and that Jan-Pro’s law of the case argument was a repackaging of the res judicata argument. The panel also rejected Jan-Pro’s argument that Dynamex should not be applied retroactively. The panel held that California law called for the retroactive application of Dynamex. The panel further held that applying Dynamex retroactively was consistent with due process.


Because the district court had no opportunity to consider whether plaintiffs were employees of Jan-Pro under the Dynamex standard, and neither party had the opportunity to supplement the record with regard to the Dynamex criteria, the panel left it to the district court to consider the question in the first instance. The panel offered guidance to the district court as it considered all three prongs of the ABC test. First, there was no Patterson v. Domino’s Pizza, LLC, 333 P.3d 723 (Cal. 2014), gloss to the ABC test. Second, other courts have considered three-tier franchise structures in applying the ABC test. Third, prong B of the ABC test may be the one most susceptible to summary judgment. The panel remanded to the district court for further proceedings consistent with this opinion.


Ward v. United Airlines (9th Cir. 17-55471 2/2/21) Wage Statements/Preemption


The panel reversed the district courts’ summary judgment in favor of United Airlines, Inc. in two consolidated cases brought by certified classes of United pilots and flight attendants who reside in California, alleging that the wage statements they received from United failed to comply with California Labor Code § 226.


The panel certified to the California Supreme Court the question whether California Labor Code § 226 applied. In response, the California Supreme Court held that the statute applied “if the employee’s principal place of work is in California.” Ward v. United Airlines, Inc., 466 P.3d 309, 325 (Cal. 2020). The Supreme Court then set forth a set of principles defining § 226’s permissible reach – the “Ward test”. United subsequently challenged the validity of applying § 226 to these plaintiffs under the Ward test, arguing that federal law precluded California from applying its wage statement law to interstate transportation workers who are based in California and do not perform a majority of their work in any one State.


The dormant Commerce Clause limits the States’ authority to enact or enforce laws that burden interstate commerce. Generally, state laws that discriminate against or directly regulate interstate commerce are virtually per se invalid, but non-discriminatory laws that have only incidental effects on interstate commerce will generally be upheld. The panel held that California Labor Code § 226, as applied to these plaintiffs under the Ward test, did not fall within either of the categories that are virtually per se invalid. The panel rejected United’s argument that application of the Ward test resulted in direct regulation of interstate commerce. The panel also rejected United’s argument that applying California Labor Code § 226 to these plaintiffs under the Ward test violated the dormant Commerce Clause because the burden imposed on interstate commerce was clearly excessive in relation to the putative local benefits.


The panel held that the Airline Deregulation Act of 1978 did not preempt application of California Labor Code § 226 to these plaintiffs where any connection between § 226 and United’s prices, routes, and services was tenuous at best.


The panel held that plaintiffs’ claims under California Labor Code § 226 were not preempted by the Railway Labor Act. Applying the test in Alaska Airlines Inc. v. Schurke, 898 F.3d 904, 920–21 (9th Cir. 2018), the panel held that plaintiffs’ claims survived the first step because they were not grounded in collective bargaining agreements; nor were they preempted under the second step, since resolution of their claims did not require interpretation of the collective bargaining agreements.


The panel declined to reach the merits of plaintiffs’ claims in the first instance, and remanded to the district courts to determine whether United complied with § 226 and, if not, what relief should be awarded. The panel directed the district courts to modify the class definitions in both cases to conform to the California Supreme Court’s definition of § 226’s permissible reach, and to modify the class period in the Ward case to extend to the date of judgment.


Choochagi v. Barracuda Networks, Inc. (CA6 H045194, filed 12/30/20, ord. pub. 1/28/21) FEHA/CFRA Interference and Retaliation


Appellant George Choochagi sued his former employer, Respondent Barracuda Networks, Inc. (Barracuda), alleging causes of action under the Fair Employment and Housing Act (FEHA), the California Family Rights Act (CFRA), and wrongful termination in violation of public policy.  The trial court granted summary adjudication on most of Choochagi’s claims.  The case proceeded to jury trial on the remaining claims, and the jury returned a defense verdict for Barracuda.


Choochagi appeals, arguing that the trial court erred by granting summary adjudication.  He also argues that judicial error in the course of the jury trial requires reversal of the jury verdict, and that the trial court abused its discretion when it calendared his motion for new trial beyond the statutory deadline to hear the motion.  For reasons we explain below, we find no reversible error and affirm the judgment.


Assn. for L.A. Deputy Sheriffs v. County of L.A. (CA2/8 B296425 1/29/21) Public Sector MOU/Home Rule Doctrine


The Association for Los Angeles Deputy Sheriffs (ALADS) sought a writ of mandate and declaration that a provision of the memorandum of understanding (MOU) between ALADS and the County of Los Angeles is unenforceable, on the ground it violates wage garnishment law and the Labor Code.  In the provision at issue, the parties agreed on how paycheck errors would be corrected, including how overpayments to employees would be recovered by the county.


The trial court sustained the county’s demurrer to the petition on the ground ALADS did not exhaust administrative remedies.  We follow the analysis in an appellate case decided after the trial court’s ruling in this case and conclude ALADS’s administrative remedies are inadequate, so dismissal on that ground was improper.  (Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (2019) 42 Cal.App.5th 918 (ALADS 2019).)  We further conclude, however, dismissal was proper because ALADS’s petition does not state valid claims against the county.  The home rule doctrine gives the county the exclusive right to regulate matters relating to its employees’ compensation.  The county’s MOU with ALADS, approved by the board of supervisors, is a lawful exercise of that exclusive right, and the Labor Code provision at issue does not apply to a charter county.  Consequently, ALADS cannot allege sufficient facts to state a cause of action.


Int’l Brotherhood of Teamsters, Local 2785 v. Federal Motor Carrier Safety Administration (9th Cir. 18-73488 1/15/21) Preemption/Meal and Rest Breaks for Commercial Vehicle Drivers


The panel denied petitions for review of the Federal Motor Carrier Safety Administration (“FMCSA”)’s determination that federal law preempted California’s meal and rest break rules (the “MRB rules”), as applied to drivers of property-carrying commercial motor vehicles who are subject to the FMCSA’s own rest break regulations.


The FMCSA only has the authority to review for preemption State laws and regulations “on commercial motor vehicle safety.” 49 U.S.C. § 31141(c).


The panel held the agency’s interpretation of the statute and the phrase “on commercial motor vehicle safety” merited deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), where the FMCSA acknowledged that it was departing from its 2008 interpretation of § 31141 and provided a reasoned analysis why it was doing so. The panel rejected petitioners’ arguments that Chevron deference was inapplicable.


Turning to Chevron’s two-step framework, the panel held that even assuming petitioners identified a potential ambiguity in the statute, the agency’s reading was a permissible one. The FMCSA reasonably determined that a State law “on commercial motor vehicle safety” was one that “imposes requirements in an area of regulations that is already addressed by a regulation promulgated under [section] 31136.” 83 Fed. Reg. at 67,473 (Dec. 28, 2018). The FMCSA’s 2018 preemption decision also reasonably relied on Congress’s stated interest in uniformity of regulation. The fact that California regulated meal and rest breaks in a variety of industries did not compel the conclusion that the MRB rules were not “on commercial motor vehicle safety.” Finally, the panel held that the decision in Dilts v. Penske Logistics, LLC, 769 F.3d 637 (9th Cir. 2014), did not foreclose the FMCSA’s interpretation. The panel concluded that the FMCSA permissibly determined that California’s MRB rules were State regulations “on commercial motor vehicle safety,” so that they were within the agency’s preemption authority.


The panel held that the FMCSA’s determination that the MRB rules were “additional to or more stringent than” the federal regulation was reasonable and supported. 49 U.S.C. § 31141(c)(1). The FMCSA reached this conclusion because California required more breaks, more often and with less flexibility as to timing. The panel rejected petitioners’ challenges to this determination.


The panel held that the FMCSA did not act arbitrarily or capriciously in finding that enforcement of the MRB rules “would cause an unreasonable burden on interstate commerce.” 49 U.S.C. § 31141(c)(4)(C). Petitioners’ counterarguments did not show that the agency acted arbitrarily or capriciously.


Scalia v. State of Alaska (9th Cir. 19-35824 1/15/21) FMLA/Workweek Defined


The panel reversed the district court’s summary judgment in favor of the Secretary of Labor in the Secretary’s action alleging that the State of Alaska miscalculated the amount of Family and Medical Leave Act (“FMLA”) leave that certain employees of the Alaska Marine Highway System (“AMHS”) were entitled to take.


The FMLA grants eligible employees “a total of 12 workweeks of leave during any 12-month period” to attend to qualifying family and medical needs. 29 U.S.C. § 2612(a)(1). At issue is the meaning of “workweek” as applied to employees who work a rotational schedule of seven days on followed by seven days off. AMHS employs “traditional” employees – those who work a regular 40 hour week with typically five days on followed by two days off, and “rotational” employees – those who work a regular schedule of seven days on followed by seven days off. Both types of employees generally work the same number of hours per year, and are generally paid the same amount. As to types of FMLA leave, an employee may take either “continuous” leave or “intermittent” leave. The Secretary contends that Alaska violated the FMLA as to rotational employees who take continuous leave.


The panel held that Congress intended to adopt the definition of “workweek” contained in Fair Labor Standards Act regulation 29 C.F.R. § 778.105 when it granted employees “a total of 12 workweeks of leave” under the FMLA. This definition does not revolve around an individual employee’s own work schedule, but is simply a week-long period, designated in advance by the employer, during which the employer is in operation. The panel held that the Secretary’s reading of “workweek” conflicted with Congress’s understanding of how FMLA leave would be calculated. The panel further held that when a rotational employee takes continuous leave, both his on and off weeks count as “workweeks of leave” under 29 U.S.C. § 2612(a)(1). Thus, Alaska may insist that rotational employees who take 12 workweeks of continuous leave return to work 12 weeks later.


The panel held that it need not defer to the Secretary’s contrary interpretation of the statute. The panel held further that the Secretary was not entitled to deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944). Specifically, the panel disagreed with the Secretary’s argument that dictionary definitions of the term “workweek” supported his reading of the statute. The panel rejected the Secretary’s assertion that his interpretation of “workweek” was supported by regulations issued by the Department of Labor in 1995, two years after the FMLA’s passage. The panel rejected the remaining challenges by the Secretary. The panel held that when an employee working a “one week on, one week off” schedule takes continuous leave, an employer may count both the on and off weeks against the employee’s FMLA leave entitlement. Alaska’s method of calculating rotational employees’ continuous leave therefore did not violate the statute. The panel remanded with instructions to enter summary judgment in Alaska’s favor.


Judge Christen dissented because she would give deference to the Secretary’s interpretation and affirm the district court’s summary judgment order She would hold that the district court gave “workweek” its plain and ordinary meaning, and correctly ruled that the State’s interpretation violated FMLA because it denied rotational employees the leave guaranteed by Congress: up to twelve workweeks of unpaid leave from work.


Vazquez v. Jan-Pro Franchising International, Inc. (SC S258191 1/14/21) Dynamex Applies Retroactively/Wage and Hour


At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide the following question of California law (see Cal. Rules of Court, rule 8.548):  Does this court’s decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (Dynamex) apply retroactively?


For the reasons set forth below, we conclude that Dynamex does apply retroactively.  In Dynamex, this court was faced with a question of first impression:  What standard applies under California law in determining whether workers should be classified as employees or independent contractors for purposes of the obligations imposed by California’s wage orders?  In addressing that question, we concluded that under one of the definitions of “employ” set forth in all California wage orders — namely, to “suffer or permit to work” — any worker who performs work for a business is presumed to be an employee who falls within the protections afforded by a wage order.  (Dynamex, supra, 4 Cal.5th at p. 916.)  We further held that such a worker can properly be found to be “an independent contractor to whom a wage order does not apply only if the hiring entity establishes:  (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”  (Id. at pp. 916–917.)  This standard, also used in other jurisdictions to distinguish employees from independent contractors, is commonly referred to as the “ABC test.”  (Id. at p. 916.)


In concluding that the standard set forth in Dynamex applies retroactively — that is, to all cases not yet final as of the date our decision in Dynamex became final — we rely primarily on the fact that Dynamex addressed an issue of first impression.  It did not change a settled rule on which the parties below had relied.  No decision of this court prior to Dynamex had determined how the “suffer or permit to work” definition in California’s wage orders should be applied in distinguishing employees from independent contractors.  Particularly because we had not previously issued a definitive ruling on the issue addressed in Dynamex, we see no reason to depart from the general rule that judicial decisions are given retroactive effect.

Defendant Jan-Pro Franchising International, Inc. asserts that an exception to the general rule of retroactivity should be recognized here.  Defendant maintains that, prior to the issuance of our decision in Dynamex, it reasonably believed that the question of whether a worker should be classified as an employee or independent contractor would be resolved under the standard set forth in this court’s decision in S.G. Borello & Sons v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello).  Borello addressed whether farmworkers hired by a grower under a written “sharefarmer agreement” were independent contractors or employees for purposes of the workers’ compensation statutes.  (Id. at p. 345.)  The Borello decision, however, did not address whether a worker should be considered an employee or an independent contractor for purposes of the obligations imposed by a wage order.  Indeed, twice in the last decade, we signaled that the test for determining whether a worker should be classified as an employee or independent contractor in the wage order context remained an open question.  (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522 (Ayala); Martinez v. Combs (2010) 49 Cal.4th 35, 57–58 (Martinez).) 


Defendant additionally contends that it could not have anticipated that the distinction between employees and independent contractors for purposes of the obligations imposed by a wage order would be governed by the ABC test that we adopted in Dynamex.  But defendant’s argument carries little weight when, as here, the underlying decision changes no settled rule.  Moreover, public policy and fairness concerns, such as protecting workers and benefitting businesses that comply with the wage order obligations, favor retroactive application of Dynamex.  Thus, we do not view the retroactive application of the ABC test to cases pending at the time Dynamex became final as improper or unfair. 


Accordingly, in response to the question posed by the Ninth Circuit, we answer that this court’s decision in Dynamex applies retroactively.


Moser v. LVMPD (9th Cir. 19-16511 1/12/21) Retaliation for First Amendment Freedom of Expression/Government Employee’s Facebook Posting


The panel reversed the district court’s summary judgment in favor of the Las Vegas Metropolitan Police Department and remanded in an action brought by a former SWAT sniper who alleged that the Department unconstitutionally retaliated against him for his protected speech when it dismissed him from the SWAT team after he commented on Facebook that it was a “shame” that a suspect who had shot a police officer did not have any “holes” in him.


The district court construed plaintiff’s statement as advocating unlawful violence and ruled that the government’s interest in employee discipline outweighed plaintiff’s First Amendment right under the balancing test for speech by government employees, set forth in Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563 (1968).


The panel first determined that plaintiff’s speech addressed an issue of public concern under the Pickering framework, that plaintiff spoke as a private citizen, not a public employee, and that he was demoted because of his speech. The panel held that the district court erred in granting summary judgment for the government because there was a factual dispute about the objective meaning of plaintiff’s comment: was it a hyperbolic political statement lamenting police officers being struck down in the line of duty, or, as the Department interpreted, a call for unlawful violence against suspects? Another factual dispute existed over whether plaintiff’s comment would have likely caused disruption in the police department. These factual disputes had to be resolved before the court could weigh the competing considerations of plaintiff’s First Amendment rights against the government interest in workforce discipline under the Pickering balancing test.


Dissenting, Judge Berzon stated that plaintiff waived any argument about the meaning of his Facebook comment and because the Department’s interpretation of plaintiff’s statement was by far more reasonable than plaintiff’s proffered alternative, Judge Berzon would affirm the district court’s judgment.


Garcia v. Haralambos Beverage Co. (CA2/5 B296923 1/4/21) Wage and Hour/Arbitration


Defendant Haralambos Beverage Co. appeals from an order denying its motion to compel arbitration, contending that there was insufficient evidence to support the trial court’s finding that it had waived its right to arbitrate.  We affirm.


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