Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section, unofficially since 2003 and officially 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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Monroe v. Cal. Public Employees' Retirement System (CA2/2 B345865, filed 2/18/26, pub. 3/12/26) Public Employee Disability Retirement | Misconduct
While under investigation for on-duty misconduct, parole agent Randy Monroe (Monroe) applied for service retirement, pending a claim for disability retirement. His application was accepted, and he was thereafter found ineligible for disability retirement because his departure was not related to a disability and occurred while he was under investigation for misconduct. The CalPERS Board of Administration affirmed the denial of his application because a prerequisite for disability retirement was lacking: the right to return to service. Monroe petitioned for a writ of mandate to reverse the Board’s decision, which the trial court denied. We agree with the Board and the trial court, and therefore affirm.
https://www4.courts.ca.gov/opinions/documents/B345865.PDF
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Payan v. LACCD (9th Cir. 24-1809 3/11/26) ADA Title II | Damages
Reversing and vacating the district court’s final judgment after retrial on remand in a disability discrimination action under Title II of the Americans with Disabilities Act (“ADA”) against Los Angeles Community College District (“LACCD”), the panel held that the district court abused its discretion in granting remittitur of damages.
Roy Payan, Portia Mason, National Federal of the Blind, Inc., and National Federation of the Blind of California, Inc., alleged discrimination in Payan’s and Mason’s treatment as students at LACCD. The jury found LACCD liable on fourteen factual allegations, and it found that LACCD had intentionally violated Title II on nine of them. Based on LACCD’s intentional conduct, the jury awarded damages to Payan and Mason. The district court granted LACCD’s motion for remittitur, reducing the damages from $218,500 to $1,650 for Payan and from $24,000 to $0 for Mason. The district court also awarded injunctive relief against LACCD.
The panel concluded that LACCD did not forfeit the argument that emotional distress damages were not available. The panel held that in light of Cummings v. Premier Rehab Keller, P.L.L.C., 596 U.S. 212 (2022) (holding that emotional distress damages are not recoverable under antidiscrimination laws enacted pursuant to Congress’ Spending Clause power), emotional distress damages are not available under Title II of the ADA. The panel explained that, while Title II is a non-Spending Clause antidiscrimination law, it explicitly defines its rights and remedies as those of the Rehabilitation Act, which was enacted pursuant to the Spending Clause. Agreeing with the Eleventh Circuit, the panel nonetheless held that the district court erred in failing to consider whether Payan and Mason were awarded other appropriate forms of relief, such as compensatory damages for loss of educational opportunities. The panel concluded that the jury’s award was consistent with the evidence presented at trial and the district court’s instructions regarding damages. The panel remanded for further proceedings consistent with this opinion and a corresponding memorandum disposition, with instructions to reinstate the jury’s damages award of $218,500 to Payan and $24,000 to Mason.
Dissenting in part, Judge Lee agreed with the majority that Payan and Mason could not recover emotional distress damages under Title II of the ADA but could still seek other pecuniary damages for opportunities lost after suffering unlawful discrimination. Judge Lee disagreed, however, with the majority’s conclusion that Payan and Mason offered sufficient evidence to prove that they were entitled to damages for lost educational opportunities.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/11/24-1809.pdf
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Montgomery v. Caribe Transport II, LLC (US 24-1238 oral argument 3/5/26) Preemption | Negligent Selection of Driver by Broker
Does 49 U.S.C. § 14501(c) preempt a state common-law claim against a broker for negligently selecting a motor carrier or driver?
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Uber Technologies, Inc. v. City of Seattle (9th Cir. 25-228 3/4/26) First Amendment | Seattle’s App-Based Worker Deactivation Rights Ordinance
The panel affirmed the district court’s denial of a motion by Uber Technologies, Inc. and Maplebear Inc. for a preliminary injunction to enjoin the City of Seattle from enforcing Seattle’s App-Based Worker Deactivation Rights Ordinance (the “Ordinance”), which applies to network companies that provide a platform for customers to hire temporary workers and prohibits unwarranted deactivations of these app-based workers’ accounts.
Section 8.40.050.A of the Ordinance requires (1) that a network company “inform” any app-based worker “in writing” of the company’s deactivation policy and (2) that the deactivation policy be “reasonably related” to the company’s “safe and efficient operations.” Plaintiffs, two network companies that rely on app-based workers for their businesses, alleged that the Ordinance compels speech in violation of the First Amendment, and that it is unconstitutionally vague.
The panel held that the Ordinance does not regulate speech subject to protection under the First Amendment because the Ordinance regulates nonexpressive conduct— the unwarranted deactivation of worker accounts. The fact that the Ordinance, in plaintiffs’ words, necessarily “compel[s] and dictate[s] the content of a written communication” does not transform a law regulating nonexpressive activity into one that infringes speech, and any burden on speech is incidental.
Alternatively, even if the Ordinance is interpreted to regulate speech, that speech would be commercial speech, and the Ordinance’s regulation of it would overcome the applicable lower level of First Amendment scrutiny. Because the Ordinance regulates deactivation standards and requires companies to communicate those standards to their workers, the panel applied the test articulated in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 651 (1985).
As to the Ordinance’s first requirement that network companies inform app-based workers of their deactivation policies, the panel held that it meets the test drawn from Zauderer, because the provision is reasonably related to Seattle’s goal to keep app-based workers informed and employed while keeping the public safe, does not purport to compel speech on controversial issues, and is not unduly burdensome.
Concerning the Ordinance’s second requirement that the deactivation policies be “reasonably related” to the companies’ “safe and efficient operations”, the panel concluded that provision is not an impermissible regulation of speech, because it regulates speech related to what Seattle has designated as unlawful activity: the unwarranted deactivations of worker accounts.
The panel further held that the Ordinance is not unconstitutionally vague because it provides fair notice to a person of ordinary intelligence as to what grounds for deactivation are reasonably related to safety and efficiency.
Accordingly, the panel held that because Plaintiffs are unlikely to succeed on the merits of their claim, the district court did not abuse its discretion when it denied the preliminary injunction.
Dissenting in part, Judge Bennett agreed with the majority that the Ordinance is not unconstitutionally vague. However, in his view the Ordinance deactivation policy requirement compels speech and is thus subject to the First Amendment. While he agreed with the majority’s alternative reasoning that the speech at issue is commercial speech subject to intermediate scrutiny, Plaintiffs raised serious questions going to the merits. He would therefore vacate and remand to have the district court redo its analysis on the merits and reexamine the Winter preliminary injunction factors in light of a determination that the Ordinance is subject to intermediate scrutiny, and in light of the current facts.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/03/04/25-228.pdf
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Sorokunov v. NetApp, Inc. (CA1/4 A171964 3/3/26) Arbitration | PAGA
Plaintiff Alexander Sorokunov sued his former employer NetApp, Inc. (NetApp), alleging various violations of the Labor Code. He also sought civil penalties and wages pursuant to the Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) (PAGA). The trial court granted NetApp’s petition to compel arbitration of Sorokunov’s individual claims, and following the arbitration, the arbitrator entered an award in NetApp’s favor on each of those claims. The trial court then confirmed the arbitration award. While the arbitration was still pending, the trial court denied Sorokunov’s motion for summary adjudication of his PAGA claim. After confirmation of the arbitration award, the court granted NetApp’s motion for judgment on the pleadings on the PAGA cause of action on the ground that Sorokunov’s lack of standing as an aggrieved employee was conclusively determined by the arbitration award.
On appeal, Sorokunov contends the court erred by (1) compelling arbitration of his individual claims; (2) denying his motion for summary adjudication; (3) confirming the arbitration award; and (4) applying the principles of issue preclusion to conclude that he lacked standing to pursue the PAGA claims. We affirm the judgment.
https://www4.courts.ca.gov/opinions/documents/A171964.PDF
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Ehrenkranz v. S.F. Zen Center (CA1/2 A171527 3/2/26) First Amendment Ministerial Exception
Plaintiff Michael Ehrenkranz filed claims with the Labor Commissioner against San Francisco Zen Center (Center), Linda Galijan, and Mike Smith (when referred to collectively, defendants) for wage-and-hour violations. The Labor Commissioner ruled in favor of Ehrenkranz, and defendants appealed the decision, resulting in a de novo action in the trial court.
Ehrenkranz moved to dismiss the appeals of Galijan and Smith on the ground they failed to post an undertaking as required by Labor Code section 98.2, subdivision (b). The trial court denied that motion. Defendants then moved for summary judgment, arguing that Ehrenkranz’s claims were barred by the ministerial exception of the First Amendment, an affirmative defense. The court granted that motion and entered judgment for defendants.
Ehrenkranz appeals that judgment, asserting two main arguments , that the trial court erred (1) in granting summary judgment because there is no evidence that his wage claims raised an ecclesiastical concern and thus that his claims violated the Religion Clauses of the First Amendment, and (2) in denying his motion to dismiss the appeals of Galijan and Smith because its finding that they satisfied the undertaking requirement in section 98.2 was based on a misinterpretation of the statute.
Months ago, our colleagues in Division Five filed an opinion involving facts strikingly similar to those present here, in an appeal arising in the same setting as here, which raised the identical issues presented here, and involved the same arguments Ehrenkranz makes here. That case is Lorenzo v. San Francisco Zen Center et al. (Nov. 21, 2025, A171659) 116 Cal.App.5th 258, review granted February 11, 2026, S294565 (Lorenzo), and in it Division Five ruled for Lorenzo all the way. Thereafter, our Supreme Court granted review of the ministerial exception issue. Pending guidance from the Supreme Court, we agree with the reasoning of Lorenzo as to the Religion Clauses analysis and adopt the same conclusions here, and thus hold that the trial court erred in finding that the ministerial exception barred Ehrenkranz’s wage-and-hour claims because defendants presented no evidence that his claims raised an ecclesiastical concern. We therefore reverse the summary judgment.
But we part company with our colleagues on the second issue and conclude that the trial court did not err in denying Ehrenkranz’s motion to dismiss the appeals of Galijan and Smith.
https://www4.courts.ca.gov/opinions/documents/A171527.PDF
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Am. Fed’n of Gov’t Employees v. Trump (9th Cir. 25-4014 2/26/26) Federal Service Labor-Management Relations Statute
The panel vacated the district court’s preliminary injunction enjoining President Trump’s Executive Order 14,251, which excludes certain federal agencies and subdivisions from collective bargaining requirements under the Federal Service Labor-Management Relations Statute (FSLMRS) based on national security concerns.
The FSLMRS protects the rights of federal employees to join labor unions, but exempts several federal agencies from coverage and authorizes the President to exclude other agencies and subdivisions from coverage based on national security considerations. Invoking 5 U.S.C. § 7103(b)(1), the President determined that certain agencies “have as a primary function intelligence, counterintelligence, investigative, or national security work,” and that the FSLMRS “cannot be applied to these agencies and agency subdivisions in a manner consistent with national security requirements and considerations.”
Under Executive Order 14,251, the agencies designated for exclusion include, inter alia, the Departments of State, Justice, and Veterans Affairs, the EPA, nearly all of the Departments of Energy, Defense, and Treasury, and various subdivisions of the Departments of Agriculture, Homeland Security, and Health and Human Services.
Plaintiffs, six unions representing roughly 800,000 federal civilian employees, sued the President and various other federal defendants, alleging that Executive Order 14,251 constituted First Amendment retaliation, as well as other claims. The district court preliminarily enjoined Executive Order 14,251 based solely on plaintiffs’ First Amendment retaliation claim, finding a serious question as to whether Executive Order 14,251 served to retaliate against the plaintiff unions for filing lawsuits against and publicly criticizing the current Administration.
The panel agreed with the district court that it had jurisdiction over this case. Although the government maintained that plaintiffs should have filed these claims before the Federal Labor Relations Authority, the panel explained that it was not “fairly discernible” that Congress meant for unions representing employees excluded from the statutory scheme to nonetheless use that scheme to challenge their exclusion.
Turning to the merits, the panel concluded that plaintiffs had not demonstrated a likelihood of success or serious questions on the merits of plaintiffs’ retaliation claim. Assuming without deciding that plaintiffs made out a prima facie case of retaliation, the panel held that on this record the government has shown that the President would have taken the same action even in the absence of the protected conduct. Executive Order 14,251 discloses no retaliatory animus on its face and instead expresses that the President’s primary concern with union activity was its interference with national security. Accordingly, because Executive Order 14,251 has a legitimate grounding in national security concerns, apart from any retaliatory animus, the government on the existing record has shown that the President would have taken the same actions in the absence of the asserted retaliatory intent.
Because plaintiffs failed to show a likelihood of success on the merits, the panel did not need to consider the remaining preliminary injunction factors—irreparable harm, the balance of equities, and the public interest—but if the panel were to consider those factors, the government has the edge.
Concurring, Judge Owens wrote separately to note that the panel was reviewing a preliminary injunction, which potentially is a distinction with a difference. Because the review of a preliminary injunction is limited to the law applied by the district court and because the fully developed factual record may be materially different from that initially before the district court, the disposition of appeals from most preliminary injunctions may provide little guidance as to the appropriate disposition on the merits.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/02/26/25-4014.pdf
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Ratha v. Rubicon Resources, LLC (9th Cir. 23-55299 2/20/26) Trafficking Victims Protection Reauthorization Act
Reversing the district court’s order denying plaintiffs’ motion under Federal Rule of Civil Procedure 60(b) for relief from summary judgment in favor of defendant Rubicon Resources, LLC, and remanding for further proceedings in a civil action under 18 U.S.C. § 1595(a), the en banc court held that an amendment to the statute, clarifying that defendants are civilly liable when they attempt to benefit, but do not succeed in benefitting, from human trafficking, has retroactive effect.
Plaintiffs were villagers from rural Cambodia who allegedly were forced to work at seafood factories in Thailand. They alleged that Rubicon marketed in the United States seafood products from those factories, thereby participating in a venture that benefited from human trafficking. The district court entered summary judgment in favor of Rubicon, holding that Rubicon only attempted to benefit from plaintiffs’ forced labor. In “Ratha I,” a three-judge panel of this court agreed, holding that the civil remedy provision of § 1595(a) did not encompass “attempt” liability. Congress subsequently passed the Abolish Trafficking Reauthorization Act of 2022 (“ATRA”), a bill clarifying that defendants are civilly liable when they attempt to benefit, but do not succeed in benefitting, from human trafficking. Plaintiffs moved for relief under Rule 60(b)(6). The district court denied the motion, holding that Congress did not intend for attempt liability to apply retroactively.
Applying the three-step framework of Landgraf v. USI Film Products, 511 U.S. 244 (1994), the en banc court held that Congress intended its clarifying amendment to have retroactive effect. Under Landgraf, the court first reads the statutory text to see whether Congress explicitly included a retroactive effective date. If not, at step two, the court determines whether application of the statute would have retroactive effect. If so, the court applies a presumption against retroactivity.
At step three, the court decides whether the presumption can be overcome by considering all indicia of intent to determine whether Congress made its intention clear that the statute applies retroactively. If so, the statute applies retroactively. To the extent that this court has held in other cases that clarifying amendments to civil statutes fall outside the Landgraf framework, the en banc court overruled those cases as inconsistent with Landgraf. At step one, the en banc court observed that the ATRA contained no explicit retroactive effective date. At step two, the en banc court determined that the ATRA would have retroactive effect and that the presumption against retroactivity applied. At step three, the panel concluded that Congress nevertheless clearly meant for the ATRA to apply retroactively. The panel concluded that four factors, considered together, clearly established the amendment’s retroactivity: (a) Congress expressly stated that its enactment was a technical and “clarifying” update; (b) § 1595(a) was ambiguous before the amendment; (c) Ratha I created a circuit split concerning the interpretation of § 1595(a); and (d) Congress acted swiftly, and with immediate effect, following the court’s decision in Ratha I.
The en banc court held that § 1595’s retroactivity fatally undermined one of the three grounds on which the district court had premised its grant of summary judgment. The en banc court concluded that the two remaining grounds were not sufficient to justify denial of plaintiffs’ Rule 60(b) motion. These grounds were: (1) plaintiffs did not demonstrate that Rubicon knowingly participated in a human trafficking venture; and (2) plaintiffs did not demonstrate that Rubicon knew, or should have known, that human trafficking was occurring at the factory. The en banc court held that the district court erred as a matter of law on the participation element because one can participate in a venture without operating or managing it, and the district court did not view all facts and inferences in favor of plaintiffs. The district court also erred as a matter of law on the knowledge element, and a reasonable jury could have found that Rubicon knew or should have known about the alleged human trafficking. Weighing the relevant factors for relief under Rule 60(b)(6), the en banc court held that plaintiffs were entitled to relief from the district court’s final order.
Judge Callahan dissented, joined by Judge M. Smith except as to Part I.A., by Judge Bade in full, by Judge Bress as to Part I only, and by Judge Johnstone in full. In Part I, Judge Callahan wrote that she agreed with the majority that Landgraf governs the retroactivity analysis, that prior cases that created an exception for clarifying amendments must be overruled, and that ATRA would have retroactive effect and thus the presumption against retroactivity applied. Judge Callahan’s agreement ended there. In Part I.A., she wrote that the four factors cited by the majority did not demonstrate clear congressional intent that the ATRA is retroactive. In Part I.B., Judge Callahan wrote that under a faithful application of Landgraf, the en banc court should decline to give the ATRA retroactive effect because there is no clear indication that Congress intended it to be retroactive. In Part II, Judge Callahan wrote that the majority reached beyond the bounds of this appeal by addressing all of the district court’s reasons for granting summary judgment.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/02/20/23-55299.pdf
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Bishop v. San Diego County Employees Retirement Assn. (CA4/1 D085406 2/18/26) Government Employee Pension Forfeiture | Convictions
Rolf Bishop, a former employee of the County of San Diego, pleaded guilty to a felony charge of violating a state conflict-of-interest law. After the entry of Bishop’s plea, but before his criminal sentencing, the San Diego County Employees Retirement Association (SDCERA) notified him that he had forfeited a portion of his accrued pension benefits under Government Code section 7522.74 on the basis that he had been “convicted” of a job-related felony. Thereafter, the court overseeing Bishop’s criminal case reduced his offense to a misdemeanor under Penal Code section 17, subdivision (b)(3), and Bishop requested reinstatement of his forfeited pension benefits. SDCERA denied the reinstatement request and Bishop petitioned the trial court for a writ of administrative mandate seeking to set aside SDCERA’s decision. The court denied Bishop’s writ petition and entered judgment for SDCERA.
Bishop appeals, arguing he is entitled to the reinstatement of his forfeited pension benefits because the crime to which he pleaded guilty was reduced to a misdemeanor at sentencing. Bishop’s appeal requires us to determine whether a public employee suffers a “conviction” within the meaning of section 7522.74 when the employee is adjudicated as guilty of a crime, whether by plea or jury verdict, or, alternatively, whether the employee suffers a “conviction” only when there has been both an adjudication of guilt and entry of a judgment thereon. In Estrada v. Public Employees’ Retirement System (2023) 95 Cal.App.5th 870 (Estrada), our colleagues in the Second District Court of Appeal determined that an adjudication of guilt constitutes a “conviction” for purposes of a felony-forfeiture provision that is substantively identical to section 7522.74. We agree with the Estrada court’s conclusion. We also agree with the Estrada court’s holding that a public employee’s pension benefits remain forfeited irrespective of whether the employee’s job-related felony conviction is reduced to a misdemeanor conviction under Penal Code section 17, subdivision (b).
Because Bishop pleaded guilty to a job-related felony, we conclude he was “convicted” of a job-related felony within the meaning of section 7522.74. His forfeited pension benefits remained forfeited, notwithstanding the criminal court’s reduction of the felony charge to a misdemeanor charge under Penal Code section 17, subdivision (b)(3). Therefore, we affirm the judgment in favor of SDCERA.
https://www4.courts.ca.gov/opinions/documents/D085406.PDF
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Lorenzo v. San Francisco Zen Center, 116 Cal.App.5th 258 (2025), review granted & jud. notice. den., 2026 WL 391750 (Feb. 11, 2026); S294565/A171659; Ministerial Exception
Review granted after reversal of judgment. Does the ministerial exception arising under the Religion Clauses of the First Amendment to the United States Constitution categorically preclude wage and hour claims by a minister against a religious organization without any inquiry into whether the claim touches upon any ecclesiastical concern? Review granted/brief due.
Docket
Court of Appeal Decision
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Parsonage v. Wal-Mart Associates (CA4/1 D083831 2/4/26) Investigative Consumer Reporting Agencies Act | Pre-Employment Background Check
California employers may not obtain an investigative consumer report to aid them in making employment decisions without complying with the Investigative Consumer Reporting Agencies Act (ICRAA). (Civ. Code, § 1786, et seq.) An employer who fails to comply with any of ICRAA’s requirements is liable to the consumer who is the subject of the report for “[a]ny actual damages sustained . . . as a result of the failure or, except in the case of class actions, ten thousand dollars ($10,000), whichever sum is greater.” (§ 1786.50, subd. (a)(1), italics added.) We hold ICRAA, by its plain language, authorizes consumers to recover the statutory sum as a remedy for a violation of their statutory rights, without any further showing of injury. We thus conclude the trial court erred when it required a consumer to demonstrate a concrete injury, such as an adverse employment decision, to establish ICRAA standing and reverse its grant of summary judgment in favor of the employer.
https://www4.courts.ca.gov/opinions/documents/D083831.PDF
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Fuentes v. Empire Nissan (SC S280256 2/2/26) Difficult-to-Read Employment Arbitration Agreement | Substantive and Procedural Unconscionability
To establish that a contract is unenforceable because it is unconscionable, the party opposing enforcement must show unfairness both in the procedure by which the contract was formed and the substance of its terms. Here, we consider how to account for illegibility in this analysis. The trial court relied on Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 674 (Davis) to conclude that small, difficult-to-read print supports a finding of substantive unconscionability as well as procedural unconscionability. Disagreeing with Davis, the Court of Appeal held that “tiny and unreadable print” is a problem of procedural unconscionability only and should not be double counted as a problem of substantive unconscionability. (Fuentes v. Empire Nissan, Inc. (2023) 90 Cal.App.5th 919, 930 (Fuentes).) We granted review to resolve this conflict. We hold that a contract’s format generally is irrelevant to the substantive unconscionability analysis, which focuses on the fairness of the contract’s terms, but that courts must closely scrutinize the terms of difficult-to-read contracts for unfairness or one-sidedness. We remand for further consideration in light of our clarification of the law.
https://www4.courts.ca.gov/opinions/documents/S280256.PDF
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Avery v. TEKsystems, Inc. (9th Cir. 24-5810 1/28/26) Arbitration | Class Action Wage-and-Hour
The panel affirmed the district court’s denial of a motion to compel arbitration filed by Defendant TEKsystems, Inc. (“TEK”) in a putative class action brought by Plaintiffs Bo Avery, Jill Unverferth, Kristy Camilleri, and Phoebe Rogers (collectively, “Plaintiffs”).
Over 22 months after the commencement of the litigation, and after briefing on class certification had closed, TEK rolled out a new, mandatory arbitration agreement (the “Arbitration Agreement”) that automatically applied to putative class members unless they quit their jobs or opted out of the Arbitration Agreement. The district court granted Plaintiffs’ motion for class certification, and the class notice period began. Federal Rule of Civil Procedure (“FRCP”) 23 creates an opt-out requirement for class members because it mandates that members of a certified class must be provided with the “best notice that is practicable” and an opportunity to request exclusion during the class notice period. If class members do nothing, they are automatically members of the class. On the other hand, under TEK’s Arbitration Agreement, class members who do nothing automatically opted out of the class. In order to remain in the class, class members had to quit their jobs or affirmatively opt out of the Arbitration Agreement. Thus, the district court found that TEK subverted FRCP 23 by turning FRCP 23’s opt-out class procedures into opt in class procedures. The district court also concluded that TEK’s Arbitration Agreement roll out communications threatened the fairness of the litigation. These communications stated that class actions are “wasteful,” “inefficient,” involve “exorbitant fees,” “tend to enrich only attorneys,” and would “require” TEK “to ignore individual employee issues and concerns”; were sent and required action during the holidays; contained inconsistent statements about how and when to opt out of the Arbitration Agreement; and also implied that putative class members must consult their own attorneys at their own expense rather than class counsel. Thus, the district court denied TEK’s motion to compel arbitration.
Following U.S. Supreme Court precedent giving district courts the duty and broad authority to exercise control over a class action under FRCP 23(d), the panel held that a district court has the authority to decline to enforce a motion to compel arbitration under FRCP 23(d) to ensure the fairness of the class proceedings. The panel noted that its holding is in accord with the Fourth Circuit, Sixth Circuit, and Eleventh Circuit. The panel also held that TEK’s Arbitration Agreement roll out communications were misleading and threatened the fairness of the class action proceedings. Additionally, the panel held that the Arbitration Agreement’s delegation provision did not prevent the district court from determining the enforceability of the Arbitration Agreement. Thus, the panel affirmed the district court’s decision to decline to enforce TEK’s motion to compel arbitration.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/28/24-5810.pdf
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Trustees of the Cal. State Univ. v. Public Emp. Relations Bd. (CA2/3 B340818 1/26/26) PERB | Higher Education Employer-Employee Relations Act
The present action was brought under the Higher Education Employer-Employee Relations Act (HEERA) (Gov. Code, §§ 3560 et seq.), which governs labor relations between public institutions of higher education and their employees. This writ proceeding comes to this court from the Public Employment Relations Board (PERB), an independent administrative agency charged with administering HEERA and other public sector labor laws. PERB has original jurisdiction to decide unfair labor practices charges (§ 3563.2), and review of PERB decisions is by petition for writ of review in the Court of Appeal (§ 3509.5).
The California Faculty Association (CFA) is the bargaining unit that represents professors, lecturers, coaches, counselors, and librarians of the California State University (CSU). In early 2023, CSU adopted an executive order that changed its student vaccination requirements effective in fall 2023. CFA demanded to bargain over the change; CSU responded that it was not required to bargain, but was willing to meet to discuss it. CFA declined the offer to meet and filed an unfair practices charge.
After a hearing, an administrative law judge (ALJ) determined that CSU was required to bargain over reasonably foreseeable effects of the new student vaccination requirements on faculty health, and that CSU violated HEERA by implementing the new requirements without bargaining. On review, PERB largely affirmed the ALJ’s findings, concluding that CSU had a duty to bargain and had implemented the new student vaccine requirements without engaging in bargaining. CSU sought a writ of review from that decision.
As we discuss, PERB did not err by finding that CSU has a duty to bargain over the effects of its revised student vaccine policy. However, there is no substantial evidence in the administrative record that when CFA filed its unfair practice charge, CSU had implemented the revised policy or had definitively refused to bargain. Accordingly, we set aside PERB’s finding that CSU violated HEERA and remand the matter for the parties to engage in effects bargaining.
https://www4.courts.ca.gov/opinions/documents/B340818.PDF
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M & K Employee Solutions, LLC v. Trustees of the IAM Pension Fund (US 23-1209 oral argument 1/20/26) ERISA | Employer Withdrawal Liability from Multiemployer Pension Plan
The Employee Retirement Income Security Act imposes "withdrawal liability"when an employer withdraws from an underfunded multiemployer pension plan. This withdrawal liabilty covers the employer's share of the plan's underfunding. Because a plan's amount of underfunding hinges on projections about its projected liabilities and assets decades into the future, withdrawal liability computations are partly a product of actuarial assumptions about anticipated interest rates and other predictions. Withdrawal liability must be computed "as of the end of the plan year preceding the plan year in
which the employer withdraws." E.g., 29 U.S.C. 1391(b)(2)(E)(i). The question presented is:
Whether 29 U.S.C. 1391's instruction to compute withdrawal liability "as of the end of the plan year" requires the plan to base the computation on the actuarial assumptions to which its actuary subscribed at the end of the year, or allows the plan to use different actuarial assumptions that were adopted after the end of the year.
Transcript
Audio
D.C. Circuit Decision
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Randolph v. Trustees of the Cal. State University (CA3 C102901, filed 12/30/25, pub. 1/16/26) Employment Discrimination | Statutory Deadline
Plaintiff Teresa Randolph sued her prior employer and several others (collectively, defendants) for claims relating to employment discrimination, whistleblower retaliation, and termination of her employment. The trial court granted defendants’ motion to dismiss based on Randolph’s failure to bring the action to trial within the five-and-a-half-year statutory deadline under Code of Civil Procedure section 583.310 and Judicial Council emergency rule 10 (Cal. Rules of Court, appen. I, emergency rule 10). Randolph appeals, asserting the trial court erred because defendants orally stipulated to an extension of the statutory deadline when they did not object to the trial court setting the trial date beyond the deadline. We disagree and affirm.
https://www4.courts.ca.gov/opinions/documents/C102901.PDF
Hu et al. v. XPO Logistics, LLC (CA2/5 B342355 1/16/26) Broker’s Liability to Independent Contractor’s Employees
The employee of a carrier hired by a broker to transport cargo across state lines sued the broker for negligence in not protecting him from harm. California law presumes that a person (here, the broker) who hires an independent contractor (here, the carrier) owes no duty of care to the employees of that independent contractor for the injuries those employees suffer while working for the independent contractor. (Sandoval v. Qualcomm Inc. (2021) 12 Cal.5th 256, 269, 270 (Sandoval).) The trial court granted summary judgment to the broker on this ground. In this appeal, the employee argues that the broker has a nondelegable duty to protect the carrier’s employees and that the broker actually exercised control over the carrier’s transportation of cargo. Because the undisputed evidence indicates that the broker did not perform any duties of a carrier and did not actually exercise any control over the carrier’s transport of the cargo, the trial court correctly determined that there were no triable issues of fact and properly granted summary judgment. We further hold that the test applicable in determining whether a broker is strictly liable for property damage to cargo—which turns on whether the broker holds itself out as a carrier, as set forth in Essex Insurance Company v. Barrett Moving & Storage, Inc. (11th Cir. 2018) 885 F.3d 1292 (Essex)—is irrelevant to the question of liability for personal injury to an independent contractor’s employees under California law. We accordingly affirm the judgment in favor of the broker.
https://www4.courts.ca.gov/opinions/documents/B342355.PDF
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The Merchant of Tennis v. Super. Ct. (CA4/2 E085766 1/14/26) Wage and Hour Class Action | Revocation of Individual Settlement Agreements
In May 2022, real party in interest Jessica Garcia (Garcia) filed a third amended consolidated class action complaint against her former employer, petitioner The Merchant of Tennis, Inc. (Merchant), for failure to pay wages in violation of various provisions of the California Labor Code, and other employment-related violations under federal and state law. In May and June 2024, Merchant entered into approximately 954 individual settlement agreements (ISAs) with employees to give up their wage and hour claims against Merchant in exchange for cash payments. Merchant paid over $875,000 in cash payments to former and current employees.
Garcia moved for class certification in May 2024. She also filed a motion to invalidate the ISAs, insisting they were obtained by Merchant through coercion and fraud. The trial court did not grant the motion to invalidate the ISAs in total but agreed that the ISAs were voidable. It ordered the parties to meet and confer regarding a curative notice to be sent to all putative class members advising that they could revoke their ISAs and join the class action lawsuit. The parties could not agree on the language of the curative notice. A hearing was held on February 28, 2025, at which the trial court ruled on the curative notice to be sent to all putative class members who had signed ISAs. The trial court ruled that the curative notice did not need to include that if the parties chose to revoke their ISAs, they may have to pay back the settlement amount if Merchant prevailed. It did advise the class members that the amount of recovery, should they prevail, may be offset by the settlement payments. The trial court agreed to stay its order on the curative notice until March 31, 2025, in order for Merchant to seek review.
Merchant filed a petition for writ of mandate (Petition) asking this court to issue a peremptory writ of mandate directing the trial court to vacate its February 28, 2025, ruling; that the trial court be instructed to comply with California’s rescission statutes, Civil Code sections 1689 and 1691, as part of the curative notice; that the trial court be instructed the curative notice must inform putative class members that if they revoke their ISAs to join the class action lawsuit, they are required to immediately return the settlement payment. Merchant requested a further stay of the trial court’s order until the issue has been resolved by this Court, which we granted. We then issued an order to show cause why relief should not be granted.
https://www4.courts.ca.gov/opinions/documents/E085766.PDF
Carroll v. City and County of S.F. (CA1/4 A169408M, filed 12/5/25 mod. & review den. 1/14/26) FEHA Age Discrimination | Municipal Disability Retirement
THE COURT:
It is ordered that the opinion filed herein on November 12, 2025, be modified as follows:
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On page 12, the first sentence under the subheading “Standard of Review” starting, “Plaintiffs state at times in their briefing that the trial court erred in its rulings at summary judgment and after the bench trial on their substantive FEHA claims, but their challenges in this appeal . . . .” is replaced with:
Plaintiffs state at times in their briefing that the trial court erred in its rulings at summary judgment and after the bench trial on their substantive FEHA claims, but the substantive challenges as briefed in this appeal are to the trial court’s ruling after the bench trial.
There is no change in judgment.
The petition for rehearing is denied.
https://www4.courts.ca.gov/opinions/documents/A169408M.PDF
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Tuufuli v. West Coast Dental Admin. Services (CA2/8 B338584 1/13/26) Arbitration
Plaintiff Sinedou S. Tuufuli appeals from the trial court’s order granting defendant West Coast Dental Administrative Services, LLC’s (West Coast Dental) motion to compel arbitration of Tuufuli’s individual claims and to dismiss Tuufuli’s class claims. The only issue Tuufuli raises on appeal is whether the court correctly found the parties’ arbitration agreement is governed by the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.). As we explain, the court correctly found the FAA governs the parties’ arbitration agreement because they agreed to be bound by the act. We therefore affirm the order granting West Coast Dental’s motion to compel arbitration of Tuufuli’s individual claims and to dismiss her class claims.
https://www4.courts.ca.gov/opinions/documents/B338584.PDF
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Spilman v. The Salvation Army (CA1/5 A169279 1/6/26) Non-Profit Volunteer | Wage and Hour
Plaintiffs Justin Spilman, Teresa Chase, and Jacob Tyler (collectively “Spilman”) worked full time for the Salvation Army, a nonprofit organization, in various operations that supported its retail thrift stores. Spilman worked without wages as part of a six-month, residential, substance abuse rehabilitation program. He now alleges that, under California law, the Salvation Army was required to pay him the minimum wage and overtime. The trial court determined that the wage laws do not apply because Spilman was a volunteer, not an employee, and it granted summary judgment to the Salvation Army. We agree that a volunteer for a nonprofit organization can fall outside the wage laws, but we conclude the trial court applied the wrong standard to distinguish a volunteer from an employee. We reverse and remand the case for further proceedings.
https://www4.courts.ca.gov/opinions/documents/A169279.PDF
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Union Gospel Mission of Yakima v. Brown (9th Cir. 24-7246 1/6/26) Washington Anti-Discrimination Law | Hiring Preference for Co-Religionists for Non-Ministerial Roles
The panel affirmed the district court’s preliminary injunction prohibiting the enforcement of the Washington Law Against Discrimination (“WLAD”) against the Union Gospel Mission of Yakima, Washington —a Christian ministry—for preferring and hiring co-religionists for nonministerial roles.
WLAD prohibits employment discrimination based on several protected grounds, including sexual orientation. Because of its religious purpose, Union Gospel requires its employees to agree with and live out its Christian beliefs and practices, including “abstaining from any sexual conduct outside of biblical marriage between one man and one woman.” Union Gospel brought this pre-enforcement action against the Washington State Attorney General and the Washington State Human Rights Commission, alleging violations of the First Amendment and requesting an injunction prohibiting defendants from enforcing WLAD against it.
The panel held that Union Gospel is likely to succeed on the merits of its claim that enforcing WLAD against it for hiring only co-religionists violates the church autonomy doctrine, as established by the First Amendment’s Religion Clauses. The church autonomy doctrine encompasses more than just the ministerial exception. It forbids interference with “an internal church decision that affects the faith and mission of the church itself.” In this case, Union Gospel’s co-religionist hiring policy constitutes an internal management decision that is essential to the institution’s central mission. It is uncontested that (1) Union Gospel is a religious institution, (2) Union Gospel has a sincerely held religious belief that only co-religionists may advance its religious mission, and (3) Union Gospel’s co-religionist hiring policy is based on that religious belief.
Under the church autonomy doctrine, Union Gospel may decline to hire as non-ministerial employees those who do not share its religious beliefs about marriage and sexuality. But unlike the ministerial exception, the church autonomy doctrine protects only Union Gospel’s nonministerial hiring decisions based on religious beliefs. Union Gospel cannot discriminate on any other ground. The panel emphasized that its decision was limited to religious organizations like Union Gospel and that it did not consider the scope of the doctrine on other types of entities run by religious institutions, such as businesses or hospitals.
The panel held that the remaining preliminary injunction factors—irreparable harm, the public interest and balance of the equities—favored Union Gospel.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/06/24-7246.pdf
NV Resort Ass’n-Int’l All. V. JB Viva Vegas (9th Cir. 24-2791 & 24-3047 1/6/26) Multiemployer Pension Plan Amendments Act
The panel reversed the district court’s grant of summary judgment in favor of the Nevada Resort Association-International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada Local 720 Pension Trust, and remanded, in an action brought by JB Viva Vegas, L.P., to challenge withdrawal liability under the Multiemployer Pension Plan Amendments Act.
The MPPAA amended the Employee Retirement Income Security Act to impose liability on employers, like JB, that withdraw from multiemployer pension plans, such as the plan administered by the Trust. But an exemption from withdrawal liability exists for employers contributing to plans that primarily cover “employees in the entertainment industry.” The panel held that, under the plain text of the statute, there is no minimum amount of entertainment work required for an individual to be an employee in the entertainment industry under the MPPAA. And even if the text were ambiguous, the best reading of the exception is that “employees in the entertainment industry” are individuals performing any amount of entertainment work. Accordingly, the panel held that the Trust’s plan primarily covered “employees in the entertainment industry” because there is no minimum entertainment-work requirement, and the majority of employees covered by the plan perform some entertainment work.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/06/24-3047.pdf
Sierra Pacific Industries Wage and Hour Cases (CA3 C099436M, filed 12/9/25, mod. & rehrng. denied 1/6/26) Arbitration
THE COURT:
It is ordered that the published opinion filed herein on December 9, 2025, be modified as follows:
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At page 6, in the first full paragraph, modify the third sentence that reads, “On January 31, 2022, the trial court entered an order imposing monetary sanctions of $4,210 against Sierra Pacific for knowingly violating the February 2020 order by failing to provide Belaire-West notices to all non-exempt employees at the Red Bluff facilities” to omit the word “knowingly” so that the sentence reads:
On January 31, 2022, the trial court entered an order imposing monetary sanctions of $4,210 against Sierra Pacific for violating the February 2020 order by failing to provide Belaire-West notices to all non-exempt employees at the Red Bluff facilities.
There is no change in the judgment. The petition for rehearing is denied.
https://www4.courts.ca.gov/opinions/documents/C099436M.PDF
Walker Specialty Constr., Inc. v. Board of Trustees (9th Cir. 24-1560 1/5/26) Multiemployer Pension Plan Amendments Act
The panel affirmed the district court’s grant of summary judgment in favor of Walker Specialty Construction, Inc., in Walker’s action against the Board of Trustees of the Construction Industry and Laborers Joint Pension Trust, contesting withdrawal liability under the Multiemployer Pension Plan Amendments Act, an amendment to the Employee Retirement Income Security Act that imposes liability on employers that withdraw from multiemployer pension plans.
The panel held that Walker was exempt from withdrawal liability under the MPPAA because its asbestos abatement work qualified it for the “building and construction industry” exception to liability. The panel concluded that, as the agency tasked with enforcing the Labor Management Relations Act, the only other statute in which Congress had previously used the term “building and construction industry,” the National Labor Relations Board established a settled meaning for the term to include not only the erection of new buildings, but also maintenance, repair, and alterations that are essential to a building or structure’s usability. The panel inferred that Congress’s intent to incorporate the NLRB’s definition into the MPPA was plain from its use of the same language in both statutes. The panel concluded that, under the NLRB’s comprehensive definition, Walker’s asbestos abatement work was within the building and construction industry, and it therefore qualified for the liability exemption.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/05/24-1560.pdf
American Fed’n of Gov’t Employees v. Trump (9th Cir. 25-3293 and 25-4476 1/5/26) Federal Reductions in Force
In a case in which the American Federation of Government Employees, AFL–CIO and others challenge President Trump’s Executive Order 14210 directing federal agencies to commence large-scale reductions in force (“RIFs”), the panel denied a petition for panel rehearing or en banc rehearing of the panel’s decision (1) denying the government parties’ petition for a writ of mandamus challenging the district court’s discovery order requiring in camera production of the Agency RIF and Reorganization Plans of all named agency defendants, (2) vacating the district court’s preliminary injunction, and (3) remanding to the district court.
Respecting the denial of rehearing en banc, Judge W. Fletcher and Judge Rawlinson responded to the dissent from the denial of rehearing en banc. First, although the Supreme Court had stayed the district court’s preliminary injunction in an earlier iteration of this case, the Court specifically left open the legality of the documents at issue. Second, the panel assumed that the privilege for predecisional deliberative documents applied to the Agency RIF and Reorganization Plans in question but agreed with the district court’s conclusion that the privilege was overridden in the circumstances of this case. Third, the panel carefully considered the well-established four-factor test set forth in FTC v. Warner Commc’ns Inc., 742 F.2d 1156 (9th Cir. 1984), in determining that the deliberative process privilege was overcome and that mandamus was not warranted. Fourth, the strong showing of a bad faith required for discovery of documents outside the administrative record was irrelevant because in this case there was no administrative record. Finally, the dissent fails to adequately account for the exceptional standard for granting mandamus.
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan, R. Nelson, VanDyke and Tung, wrote that, in denying the mandamus petition, the panel made three errors that needed correction by our en banc court. First, the panel majority flirted with the idea that the government’s internal RIF Plans were not even deliberative—a truly extreme position. It wrongly suggested that the government’s internal RIF Plans are not predecisional, deliberative materials. Second, and more importantly, the panel majority severely weakened the deliberative process privilege—a doctrine with deep common-law roots that protects the separation of powers. It failed to adequately address the separation-of-powers concerns in ordering the discovery of intra-executive branch documents. Third, the panel majority created a blueprint for making an end-run around the Administrative Procedure Act’s normal discovery rules. It mangled the law for ordering extra-record discovery and so expanded it to circumvent any limits on the production of internal government documents.
https://cdn.ca9.uscourts.gov/datastore/opinions/2026/01/05/25-3293.pdf
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Thompson v. CVSD No. 365 (9th Cir. 24-5263 12/29/25) Retaliation | First Amendment
The panel affirmed the district court’s summary judgment for the Central Valley School District (“CVSD”) and individual school administrators in a suit brought by Randy Thompson, a former middle school assistant principal, alleging retaliation in violation of the First Amendment.
Thompson was placed on paid administrative leave and subsequently transferred to a teaching position as a result of his posting on Facebook a comment about the Democratic National Convention that used epithets, slurs, and violent language.
Applying the two-step Pickering framework, the panel affirmed the district court’s conclusion that Thompson made out a prima facie First Amendment retaliation claim for private speech he made on a matter of public concern. The panel assumed, without deciding, that a reasonable jury could conclude that placing Thompson on paid administrative leave could constitute an adverse employment action and that the record supported a finding that the Facebook post was a substantial or motivating factor in that decision. However, CVSD sufficiently showed a reasonable prediction of disruption under Pickering Step Two. CVSD’s interest in creating a safe and inclusive school environment outweighed the public interest commentary contained in Thompson’s speech.
Because Thompson’s First Amendment rights were not violated, the panel affirmed the district court’s finding of qualified immunity in favor of the individual school officials.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/24-5263.pdf
Khatibi v. Hawkins (9th Cir. 24-3108 12/29/25) First Amendment | Government Speech
The panel denied a petition for panel rehearing and rehearing en banc of the panel’s decision affirming the district court’s dismissal of an action, brought by a physician instructor of continuing medical education (CME) courses and a nonprofit comprised of healthcare professionals and policymakers, alleging that the Medical Board of California’s requirement that CME courses eligible for credit include information about implicit bias violates the Free Speech Clause of the First Amendment.
Dissenting from the denial of rehearing en banc, Judge VanDyke, joined by Judges Bumatay and Tung, wrote that the panel erred in concluding that CME courses are government speech devoid of any First Amendment protection because (1) California has not historically used CME courses to communicate the state’s own messages, (2) those attending CME courses would be unlikely to perceive the instructor’s message as the government’s message, and (3) the state’s regulations otherwise exert very little control over CME instructors’ messages. The panel’s decision puts this circuit out of step with the precedent of the Supreme Court and sister circuits, and even this circuit’s precedent.
Dissenting from the denial of rehearing en banc, Judge Tung, joined by Judges Bumatay and VanDyke, wrote that private instructors of continuing medical education courses do not engage in “government speech,” for the simple reason that they are not the government and they do not speak for the government. A law requiring them to convey a viewpoint they find objectionable thus restricts their private expression and is not exempt from First Amendment scrutiny.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/24-3108.pdf
Employees at Clark County Gov’t Ctr., v. Monsanto, Co. (9th Cir. 25-6625 12/29/25) CAFA
The panel reversed the district court’s order remanding to state court an action brought by a class of individual plaintiffs who alleged they were injured while working at the Clark County Government Center because they were exposed to toxic waste dumped at the site.
Plaintiffs originally brought this case in Nevada state court alleging that some of the waste dumped at the site contained polychlorinated biphenyls (PCBs), and that the former Monsanto Company (Old Monsanto) manufactured more than 99 percent of all PCBs sold in the United States. Old Monsanto’s corporate successors—Pharmacia LLC, Solutia Inc., and Monsanto Co—removed this case to federal court under the Class Action Fairness Act (“CAFA”). The district court granted plaintiffs’ motion to remand this case to state court, holding that this case falls within CAFA’s “local controversy exception.”
The panel held that CAFA’s local controversy exception does not apply because plaintiffs cannot satisfy the “principal injuries” element of the exception, which directs the federal court to decline to exercise jurisdiction if, among other requirements, the “principal injuries resulting from the alleged conduct or any related conduct of each defendant were incurred in the State in which the action was originally filed.” 28 U.S.C. § 1332(d)(4)(A)(i)(III). Here, the principal injuries of Old Monsanto’s alleged conduct were not incurred in Nevada. Plaintiffs made no allegations suggesting that the injuries from PCBs in Nevada were more significant than those in other States. Accordingly, the panel reversed the district court’s order remanding the case to state court.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/12/29/25-6625.pdf​