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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, 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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Cvejic v. Skyview Capital (CA2/8 B318880 6/28/23) Arbitration | Tardy Fees

A statute gave Milan Cvejic the option to get out of arbitration if Skyview was tardy in paying its arbitration fees.  Skyview was tardy in paying its arbitration fee.  Cvejic was entitled to get out.  Citations are to the Code of Civil Procedure.

Harper v. Nedd (9th Cir. 22-35036 6/26/23) 5th Amendment Bivens Action | Federal Employment


In an interlocutory appeal, the panel reversed the district court’s denial of defendants’ motion to dismiss an action alleging due process violations and seeking damages pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).


David Harper, a former Bureau of Land Management (“BLM”) Law Enforcement Ranger in Idaho, challenged adverse employment actions taken against him by the Department of the Interior and BLM officials. He sued defendants alleging a violation of his Fifth Amendment right to due process.


The panel held that Harper had no claim for money damages under Bivens. Citing Egbert v. Boule, 142 S. Ct. 1793 (2022), the panel stated that the Supreme Court means what it says: Bivens claims are limited to the three contexts the Court has previously recognized and are not to be extended unless the Judiciary is better suited than Congress to provide a remedy. Here, Harper’s claims arose in a different context than what the Court has recognized. Congress has also already provided a remedy in this context under the Civil Service Reform Act of 1978. Because this case involves an alternative remedial structure, this case exists in a novel context outside the preexisting Bivens framework. Extending Bivens here would risk impermissible intrusion into the functioning of both the Legislative and Executive Branches.

Coinbase, Inc. v. Bielski (US 22–105, 599 U. S. ____ (2023), 6/23/23) Stay | Interlocutory Appeal of Arbitrability Question (applicable to employment cases)


Abraham Bielski filed a putative class action on behalf of Coinbase users alleging that Coinbase, an online currency platform, failed to replace funds fraudulently taken from the users’ accounts. Because Coinbase’s User Agreement provides for dispute resolution through binding arbitration, Coinbase filed a motion to compel arbitration. The District Court denied the motion. Coinbase then filed an interlocutory appeal to the Ninth Circuit under the Federal Arbitration Act, 9 U. S. C. §16(a), which authorizes an interlocutory appeal from the denial of a motion to compel arbitration. Coinbase also moved the District Court to stay its proceedings pending resolution of the interlocutory appeal. The District Court denied Coinbase’s stay motion, and the Ninth Circuit likewise declined to stay the District Court’s proceedings pending appeal.


Held: A district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing. Pp. 2–10.


(a) Section 16(a) does not say whether district court proceedings must be stayed pending resolution of an interlocutory appeal. But Congress enacted the provision against a clear background principle prescribed by this Court’s precedents: An appeal, including an interlocutory appeal, “divests the district court of its control over those aspects of the case involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U. S. 56, 58. The Griggs principle resolves this case. Because the question on appeal is whether the case belongs in arbitration or instead in the district court, the entire case is essentially “involved in the appeal,” id., at 58, and Griggs dictates that the district court stay its proceedings while the interlocutory appeal on arbitrability is ongoing. Most courts of appeals to address this question, as well as leading treatises, agree with that conclusion.


The common practice of staying district court proceedings during the pendency of an interlocutory appeal taken under §16(a) reflects common sense. If the district court could move forward with pre-trial and trial proceedings while the appeal on arbitrability was ongoing, then many of the asserted benefits of arbitration (efficiency, less expense, less intrusive discovery, and the like) would be irretrievably lost—even if the court of appeals later concluded that the case actually had belonged in arbitration all along. Absent a stay, parties also could be forced to settle to avoid the district court proceedings (including discovery and trial) that they contracted to avoid through arbitration. The Griggs rule avoids these detrimental results.


Congress’s longstanding practice reflects the Griggs rule. Given Griggs, when Congress wants to authorize an interlocutory appeal and to automatically stay the district court proceedings during that appeal, Congress ordinarily need not say anything about a stay. By contrast, when Congress wants to authorize an interlocutory appeal, but not to automatically stay district court proceedings pending that appeal, Congress typically says so. Since the creation of the modern courts of appeals system in 1891, Congress has enacted multiple statutory “nonstay” provisions. Pp. 2–7.


(b) Bielski’s arguments to overcome the Griggs principle are unpersuasive. First, the courts of appeals possess robust tools to prevent unwarranted delay and deter frivolous interlocutory appeals that an automatic stay might otherwise encourage. Second, Congress included explicit stay requirements in two other statutory provisions for reasons particular to those statutes, not because Congress thought that an interlocutory appeal did not ordinarily stay district court proceedings. Third, the result here does not create a special, arbitration-preferring procedural rule, but simply subjects arbitrability appeals to the same stay principles that courts apply in other analogous contexts where an interlocutory appeal is authorized. Fourth, experience shows that ordinary discretionary stay factors would not adequately protect parties’ rights to an interlocutory appellate determination of arbitrability. In any event, the background Griggs rule applies regardless of how often courts might otherwise grant stays under the ordinary discretionary stay factors. Fifth, while the Court has recognized that questions of arbitrability are severable from merits questions, the sole issue here is whether the district court’s authority to consider a case is “involved in the appeal” when an appellate court considers the threshold question of arbitrability, Griggs, 459 U. S., at 58. The answer is yes. Pp. 7–10.


Reversed and remanded.


KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, and BARRETT, JJ., joined. JACKSON, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined in full, and in which THOMAS, J., joined as to Parts II, III and IV.


Blaylock v. DMP 250 Newport Center (CA4/3 G061301, filed 5/30/23, pub. ord. 6/23/23) Privette Doctrine


The Privette doctrine (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette)) limits a property owner’s potential liability for on-the-job injuries sustained by employees of an independent contractor.  It recognizes that when the owner retains no control over the mode of work, “the work performed was the enterprise of the contractor, who, as a matter of business convenience, would be better able than the person employing the contractor to absorb accident losses incurred in the course of the contracted work.”  (Privette, at p. 693.)


There is an exception to the Privette doctrine’s rule of nonliability in cases where “(1) [the property owner] knows or reasonably should know of a concealed, pre‑existing hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the landowner fails to warn the contractor.”  (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675,)


Blaylock argues the trial court erred by failing to recognize there is a triable issue of fact about whether DMP 250 Newport Center, LLC, the owner of the premises on which he was injured, and DMP Management, LLC, the owner’s property manager (collectively DMP) knew or should have known of the allegedly concealed hazardous condition—an access panel in the floor of the crawl space in which he was working—that he fell through.


We find no error.  While the evidence submitted by Blaylock might be sufficient to demonstrate DMP should have known the access panel existed, there was no evidence it knew or should have known the panel was either concealed from a person in the crawl space above, or that it was hazardous.  The Kinsman rule is therefore inapplicable.


Piplack v. In-n-Out Burgers, 88 Cal.App.5th 128 (2023), review granted, 2023 WL 4004218 (Mem) (Jun. 14, 2023); S279546/G061098  Arbitration


Petition for review after reversal in part and remand in part and order denying petition to compel arbitration. The court ordered briefing deferred pending decision in Adolph v. Uber Technologies, Inc., S274671, which presents the following issue: Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are "premised on Labor Code violations actually sustained by" the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue "PAGA claims arising out of events involving other employees" (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable. Review granted/holding for lead case.



Court of Appeal Decision


Gregg v. Uber Technologies, Inc., 89 Cal.App.5th 786 (2023), review granted, 2023 WL 4004338 (Jun. 14, 2023); S279722/B302925  Arbitration


Petition for review after affirmance in part and reversal in part an order denying a petition to compel arbitration. The court ordered briefing deferred pending decision in Adolph v. Uber Technologies, Inc., S274671, which presents the following issue: Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are "premised on Labor Code violations actually sustained by" the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue "PAGA claims arising out of events involving other employees" (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable. Review granted/holding for lead case.



Court of Appeal Decision

Seifu v. Lyft, 89 Cal.App.5th 1129 (2023), review granted, 2023 WL 4004223 (Jun. 14, 2023); S279932/B301774  Arbitration


Petition for review after affirmance in part and reversal in part an order denying a petition to compel arbitration. The court ordered briefing deferred pending decision in Adolph v. Uber Technologies, Inc., S274671, which presents the following issue: Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are "premised on Labor Code violations actually sustained by" the aggrieved employee (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. __, __ [142 S.Ct. 1906, 1916] (Viking River Cruises); see Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue "PAGA claims arising out of events involving other employees" (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable. Review granted/holding for lead case.



Court of Appeal Decision

Leon v. County of Riverside (SC S269672 6/22/23) Public Employee Investigatory Immunity


A provision of the Government Claims Act immunizes public employees from liability for “instituting or prosecuting any judicial or administrative proceeding” within the scope of their employment, “even if” the employees act “maliciously and without probable cause.”  (Gov. Code, § 821.6 (section 821.6).)  This provision immunizes public employees from claims of injury caused by wrongful prosecution.  The question before us is whether, as several Courts of Appeal have held, it also confers immunity from claims based on other injuries inflicted in the course of law enforcement investigations.  The answer is no.  While other provisions of the Government Claims Act may confer immunity for certain investigatory actions, section 821.6 does not broadly immunize police officers or other public employees for any and all harmful actions they may take in the course of investigating crime.


Shah v. Dept. of Human Resources (CA3 C094482, filed 5/23/23, pub. ord. 6/15/23) State Employee Cash Award | Statute of Limitations


Ratilal Shah sued the California Department of Transportation and the State Merit Award Board (Board), alleging the Board wrongfully denied him cash awards for suggestions that saved the state money.  The California Department of Human Resources (CalHR), acting on behalf of the Board, filed a demurrer, claiming the action is barred by the limitations period in Government Code section 19815.8. The trial court agreed and dismissed the complaint as to the Board.


Shah now contends the trial court applied the wrong statute of limitations and that, applying the proper statute of limitations, the action is not time-barred.


Finding no error, we will affirm the judgment.

Grabowski v. Arizona Board of Regents (9th Cir. 22-15714 6/13/23) Title IX | Perceived Sexual Orientation Harassment


The panel affirmed in part, vacated in part, and reversed in part the district court’s dismissal of Michael Grabowski’s action under Title IX and 42 U.S.C. § 1983 against the Arizona Board of Regents, the University of Arizona, and individual defendants, and remanded for further proceedings.


Grabowski alleged that, when he was a first-year student-athlete at the University of Arizona, his teammates subjected him to frequent “sexual and homophobic bullying” because they perceived him to be gay. He claimed that the University defendants were deliberately indifferent to his claims of sexual harassment and that they retaliated against him in violation of Title IX. He also brought claims against two of his coaches under § 1983 and sought punitive damages.


The panel held that Title IX bars sexual harassment on the basis of perceived sexual orientation. In Bostock v. Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court brought sexual-orientation discrimination within Title VII’s embrace. Construing Title IX’s protections consistently with those of Title VII, the panel held that discrimination on the basis of sexual orientation is a form of sex-based discrimination under Title IX. Again looking to Title VII caselaw, and agreeing with the Fourth Circuit, the panel further held that discrimination on the basis of perceived sexual orientation, as opposed to actual sexual orientation, is actionable under Title IX.


The panel held that a school that receives federal funding can be liable for an individual Title IX claim of student-on-student harassment if (1) the school had substantial control over the harasser and the context of the harassment; (2) the plaintiff suffered harassment so severe that it deprived him of access to educational opportunities or benefits; (3) a school official who had authority to address the issue and institute corrective measures for the school had actual knowledge of the harassment; and (4) the school acted with deliberate indifference to the harassment such that the indifference subjected the plaintiff to harassment. The panel held that Grabowski sufficiently alleged the first, third, and fourth elements of his Title IX harassment claim, but the operative complaint failed to allege a deprivation of educational opportunity. The panel affirmed the dismissal of the harassment claim, vacated the portion of the district court’s order denying leave to amend, and remanded for the district court to consider Grabowski’s request to amend the complaint again, should he renew that request before the district court.


The panel held that the operative complaint sufficiently alleged that Grabowski suffered harassment on the basis of perceived sexual orientation, that he asked the University defendants to intervene, and that these defendants retaliated against him when they failed to investigate his accusations adequately. The panel therefore reversed the dismissal of Grabowski’s retaliation claim and remanded for further proceedings.


Affirming the judgment for defendants on the § 1983 claim and the claim for punitive damages, the panel held that the coaches were entitled to qualified immunity as to Grabowski’s claim that they violated his due process rights when they removed him from the track team and cancelled his athletic scholarship.

Sharp v. S&S Activewear, L.L.C (9th Cir. 21-17138 6/7/23) Hostile Work Environment | Offensive Musical Content  

The panel vacated the district court’s dismissal, for failure to state a claim, of a Title VII sexual harassment claim against apparel maker S&S Activewear and remanded.


Eight former employees, seven women and one man, alleged that S&S permitted its managers and employees to routinely play “sexually graphic, violently misogynistic” music throughout its warehouse.


Aligning with the decisions of other circuits, the panel held that music with sexually derogatory and violent content, played constantly and publicly throughout the workplace, can foster a hostile or abusive environment and thus constitute discrimination because of sex. The panel disagreed with the district court’s reasoning that the music’s offensiveness to both men and women and audibility throughout the warehouse nullified any discriminatory potential. The panel vacated the district court’s dismissal, with prejudice and without leave to amend, of plaintiffs’ music-based claim and instructed the district court to reconsider, on remand, the sufficiency of plaintiffs’ pleadings in light of two key principles: First, harassment, whether aural or visual, need not be directly targeted at a particular plaintiff in order to pollute a workplace and give rise to a Title VII claim. Second, the challenged conduct’s offensiveness to multiple genders is not a certain bar to stating a Title VII claim.

Glacier Northwest, Inc. v. Teamsters (US 21-1449 6/1/23) NLRA Preemption


Glacier Northwest delivers concrete to customers in Washington State using ready-mix trucks with rotating drums that prevent the concrete from hardening during transit. Concrete is highly perishable, and even concrete in a rotating drum will eventually harden, causing significant damage to the vehicle. Glacier’s truck drivers are members of the International Brotherhood of Teamsters Local Union No. 174. After a collective-bargaining agreement between Glacier and the Union expired, the Union called for a work stoppage on a morning it knew the company was in the midst of mixing substantial amounts of concrete, loading batches into ready-mix trucks, and making deliveries. The Union directed drivers to ignore Glacier’s instructions to finish deliveries in progress. At least 16 drivers who had already set out for deliveries returned with fully loaded trucks. By initiating emergency maneuvers to offload the concrete, Glacier prevented significant damage to its trucks, but all the concrete mixed that day hardened and became useless.


Glacier sued the Union for damages in state court, claiming that the Union intentionally destroyed the company’s concrete and that this conduct amounted to common-law conversion and trespass to chattels. The Union moved to dismiss Glacier’s tort claims on the ground that the National Labor Relations Act (NLRA) preempted them. While a federal law generally preempts state law when the two conflict, the NLRA preempts state law even when the two only arguably conflict. San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245. In the Union’s view, the NLRA—which protects employees’ rights “to self-organization, to form, join, or assist labor organizations, . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” 29 U. S. C. §157—at least arguably protected the drivers’ conduct, so the State lacked the power to hold the Union accountable for any of the strike’s consequences. The Washington Supreme Court agreed with the Union, reasoning that “the NLRA preempts Glacier’s tort claims related to the loss of its concrete product because that loss was incidental to a strike arguably protected by federal law.”


Held: The NLRA did not preempt Glacier’s tort claims alleging that the Union intentionally destroyed the company’s property during a labor dispute. Pp. 6–12.


(a) The parties agree that the NLRA protects the right to strike but that this right is not absolute. The National Labor Relations Board has long taken the position—which the parties accept—that the NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work. Bethany Medical Center, 328 N. L. R. B. 1094. Given this undisputed limitation on the right to strike, the Court concludes that the Union has not met its burden as the party asserting preemption to demonstrate that the NLRA arguably protects the drivers’ conduct. Longshoremen v. Davis, 476 U. S. 380, 395. Accepting the complaint’s allegations as true, the Union did not take reasonable precautions to protect Glacier’s property from imminent danger resulting from the drivers’ sudden cessation of work. The Union knew that concrete is highly perishable, that it can last for only a limited time in a delivery truck’s rotating drum, and that concrete left to harden in a truck’s drum causes significant damage to the truck. The Union nevertheless coordinated with truck drivers to initiate the strike when Glacier was in the midst of batching large quantities of concrete and delivering it to customers. The resulting risk of harm to Glacier’s equipment and destruction of its concrete were both foreseeable and serious. The Union thus failed to “take reasonable precautions to protect” against this foreseeable and imminent danger. Bethany Medical Center, 328 N. L. R. B., at 1094. Indeed, far from taking reasonable precautions, the Union executed the strike in a manner designed to achieve those results. Because such conduct is not arguably protected by the NLRA, the state court erred in dismissing Glacier’s tort claims as preempted. Pp. 6–8.


(b) The Union’s efforts to resist the conclusion that the NLRA does not arguably protect its conduct are unavailing. First, the Union emphasizes that the NLRA’s protection of the right to strike should be interpreted generously. But the protected right to strike is not absolute, thus the Court must analyze whether the strike exceeded the limits of conduct protected by the statute.


Second, the Union argues that workers do not forfeit the NLRA’s protections simply by commencing a work stoppage when the loss of perishable products is foreseeable, but this case involves much more than that. Given the lifespan of wet concrete, Glacier could not batch it until a truck was ready to take it. By reporting for duty and pretending as if they would deliver the concrete, the drivers prompted the creation of the perishable product. Then, they waited to walk off the job until the concrete was mixed and poured in the trucks. In so doing, they not only destroyed the concrete but also put Glacier’s trucks in harm’s way.


Third, the Court acknowledges that the Union’s decision to initiate the strike during the workday and failure to give Glacier specific notice do not themselves render the Union’s conduct unprotected. Still, these actions are relevant considerations in evaluating whether strikers took reasonable precautions, whether harm to property was imminent, and whether that danger was foreseeable. See International Protective Services, Inc., 339 N. L. R. B. 701, 702–703. Here, the Union’s choice to call a strike after its drivers had loaded a large amount of wet concrete into Glacier’s delivery trucks strongly suggests that it failed to take reasonable precautions to avoid foreseeable, aggravated, and imminent harm to Glacier’s property.


Finally, while the Union maintains that the drivers took some steps to protect the trucks, the Union concedes that the NLRA does not arguably protect its actions if those actions posed a material risk of harm to the trucks. Given that Glacier alleges that the Union took affirmative steps to endanger Glacier’s property rather than reasonable precautions to mitigate that risk, the NLRA does not arguably protect the Union’s conduct.


Pp. 8–12. 198 Wash. 2d 768, 500 P. 3d 119, reversed and remanded.


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


Morales-Garcia v. Better Produce, Inc. (9th Cir. 22-55119 6/1/23) Joint Employer


The panel affirmed the district court’s ruling in favor of defendants Red Blossom Sales, Inc. and Better Produce, Inc., after a bench trial, in a case that concerns the application of a California labor law enacted to protect workers whose labor has been outsourced to a labor provider. Under the statute, Cal. Labor Code § 2810.3(a)(1)-(3), (6), the outsourcing entity, known as a “client employer,” is liable for the laborers’ wages if the laborers’ work is within the outsourcers’ “usual course of business.” In this case, the plaintiffs are agricultural workers hired by strawberry growers (“the Growers”) to pick the fruit that was then turned over to Red Blossom and Better Produce (“the Marketers”) for distribution.


The plaintiffs sought to hold the Marketers liable for their wages as “client employers.” The Marketers cooled and sold the berries principally to large retail grocery chains. The Marketers conducted their cooling and distribution operations on premises that were close to but separate from the farms. In 2018, the Growers stopped paying the plaintiffs and later filed for bankruptcy. The plaintiffs sued the Growers and the Marketers as joint employers under California and federal law. The plaintiffs also sued the Marketers as client employers under California Labor Code § 2810.3. The district court ruled for the Marketers on all theories. The plaintiffs appealed only with respect to the Marketers’ liability under § 2810.3. The panel held that the plaintiffs were not performing labor within the Marketers’ “usual course of business” as defined by the statute. That term is defined as “the regular and customary work of a business, performed within or upon the premises or worksite of the client employer.”


The panel held that the district court correctly ruled that by requiring the work to take place on the premises of the client employer, the legislature required that a client employer exercise some element of control over the place where the laborers work. Given the particular facts of this case, the panel concluded that the plaintiffs’ work took place on the farms where the strawberries were grown, not on the premises or worksites of the Marketers, and that the Marketers are therefore not liable as client employers under § 2810.3.

Duran v. EmployBridge Holding Co. (CA5 F084167, filed 4/27/23, ord. pub. 5/30/23) PAGA Arbitration


This appeal challenges the denial of a motion to compel arbitration of claims to recover civil penalties under the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). The denial of the motion was based on the trial court’s determination that the agreement to arbitrate specifically excluded PAGA claims.  We conclude the trial court correctly interpreted the agreement’s carve-out provision stating that “claims under PAGA … are not arbitrable under this Agreement.”  This provision is not ambiguous.  It is not objectively reasonable to interpret the phrase “claims under PAGA” to include some PAGA claims while excluding others.  Thus, the carve-out provision excludes all the PAGA claims from the agreement to arbitrate.


We therefore affirm the order denying the motion to compel arbitration.

Kourounian v. Cal. Dept. of Tax & Fee Administration (CA2/8 B309007 5/24/23) Retaliation | Admission of Evidence


Rafi Kourounian obtained a $425,562 jury verdict in his favor on his claim that the California Department of Tax and Fee Administration (the Department) retaliated against him for filing an internal complaint with its Equal Opportunity Office (EEO).  The Department appeals, contending that four erroneous evidentiary rulings by the trial court deprived it of a fair trial.  Specifically, appellant contends the trial court erred in (1) admitting evidence of allegedly retaliatory conduct which pre-dated the filing of his internal complaint, (2) admitting into evidence Kourounian’s EEO complaints, (3) permitting Kourounian to offer testimony that exceeded the scope of rebuttal, and (4) permitting Kourounian to offer evidence of 10 failed promotional attempts.  Appellant also contends the evidence supporting economic damages is speculative.  We agree the trial court erred in admitting evidence about activity that occurred before the filing of his EEO complaints.  We also agree admission of the first EEO complaint and supplement was prejudicial and prevented the Department from receiving a fair trial.  Accordingly, we reverse the judgment and remand for further proceedings.  We need not and do not reach the Department’s other claims of error.

Naranjo v. Spectrum Security Services, Inc., 13 Cal.5th 93 (2022), review granted (May 31, 2023); S279397/B256232 Wage & Hour Penalties


Petition for review after affirmance in part and reversal in part of judgment. Does an employer's good faith belief that it complied with Labor Code section 226, subdivision (a) preclude a finding that its failure to report wages earned was "knowing and intentional" as is necessary to recover penalties under Labor Code section 226, subdivision (e)(1)? Review granted/brief due.



Court of Appeal Opinion

P. ex rel. Garcia-Brower v. Kolla's, Inc. (SC S269456 5/22/23) Complaint of Already Known Wage and Hour Violations | Protected Disclosure


The Labor Code prohibits employers from retaliating against employees for “disclosing information” concerning suspected violations of the law either internally or to government or law enforcement agencies. (Lab. Code, § 1102.5, subd. (b) (section 1102.5(b)); all undesignated statutory references are to the Labor Code.) Violators are subject to various sanctions, including civil penalties remitted to the Division of Labor Standards Enforcement (DLSE) of the Department of Industrial Relations. (Id., subd. (f).) In this case, employee A.C.R. complained to the owner of the nightclub where she worked about unpaid wages she was owed. In response, her employer fired her, threatened to report her to immigration authorities, and told her never to return to the nightclub. (We follow the practice of the trial court and the Court of Appeal in using the complainant’s initials in light of the immigration-related threats against her.) It is undisputed that the employer’s conduct was prohibited by the Labor Code. The question here is whether a report of unlawful activities made to an employer or agency that already knew about the violation is a protected “disclosure” within the meaning of section 1102.5(b). We hold it is.

Hodges v. Cedars-Sinai Medical Center (CA2/8 B297864, filed 4/28/23, pub. ord. 5/19/23) FEHA Disability Discrimination | Medical Exemption from Flu Vaccine


Plaintiff Deanna Hodges is a former employee of defendant Cedars-Sinai Medical Center (Cedars).  As a condition of her continued employment, she was required to get a flu vaccine unless she obtained a valid exemption—one establishing a medically recognized contraindication to getting the flu vaccine.  Her doctor wrote a note recommending an exemption for various reasons, including her history of cancer and general allergies.  None of the reasons was a medically recognized contraindication to getting the flu vaccine.  Cedars denied the exemption request.  Plaintiff still refused to get the vaccine.  Cedars terminated her.  Plaintiff sued Cedars for disability discrimination and related claims under the Fair Employment and Housing Act, Government Code section 12900 et seq. (FEHA).  The trial court granted Cedars’s motion for summary judgment.  We affirm.

Castelo v. Xceed Financial Credit Union (CA2/7 B311573 5/18/23) Arbitration | Release in Separation Agreement


Elizabeth Castelo sued her former employer Xceed Financial Credit Union (Xceed) for wrongful termination and age discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) The case was submitted to binding arbitration pursuant to the stipulation of the parties. The arbitrator granted summary judgment in favor of Xceed on the ground Castelo’s claims were barred by a release in her separation agreement. The arbitrator rejected Castelo’s assertion that the release violated Civil Code section 1668, which prohibits pre-dispute releases of liability in some circumstances. Castelo moved to vacate the arbitration award, arguing the arbitrator exceeded his powers by enforcing an illegal release. The trial court denied the motion to vacate and entered judgment confirming the arbitration award.


We affirm. We review the arbitrator’s ruling for clear error. The arbitrator correctly ruled the release did not violate Civil Code section 1668. Castelo signed the separation agreement after she was informed of the decision to terminate her but before her last day on the job. At the time she signed, she already believed that the decision to terminate her was based on age discrimination and that she had a valid claim for wrongful termination. The alleged violation of FEHA had already occurred, even though the claim had not yet fully accrued. Accordingly, the release did not violate section 1668 because it was not a release of liability for future unknown claims.

Ohio Adjutant General’s Dept. v. FLRA (US 21-1454, 598 U. S. ____ (2023), 5/18/23) Federal Labor Relations Authority | Ohio National Guard


The Federal Service Labor-Management Relations Statute (FSLMRS) provides for collective bargaining between federal agencies and their employees’ unions; bars each from committing unfair labor practices; and establishes the Federal Labor Relations Authority (FLRA) to investigate and adjudicate labor disputes. See 5 U. S. C. §7101 et seq. At issue here, the American Federation of Government Employees, Local 3970, AFL–CIO is the exclusive representative of certain federal civil-service employees known as dual-status technicians who work for the Ohio National Guard. After their prior collective-bargaining agreement (CBA) expired, petitioners here—the Ohio National Guard, the Ohio Adjutant General, and the Ohio Adjutant General’s Department (collectively the Guard)—asserted that the Guard was not bound by the FSLMRS when interacting with the Guard’s dual-status technicians. The Union subsequently filed an unfair labor practice complaint with the FLRA to resolve the dispute. Pointing to the fact that the FLRA only has jurisdiction over labor organizations and federal agencies, petitioners argued that the Guard was not an “agency” and that dual-status technician bargaining-unit employees were not “employees” for purposes of the FSLMRS. The Administrative Law Judge issued a recommended decision finding that: the FLRA had jurisdiction over the Guard; the dual-status technicians had collective-bargaining rights under the FSLMRS; and the Guard’s actions in repudiating the CBA violated the FSLMRS. A divided panel of the FLRA adopted the ALJ’s findings, conclusions, and remedial order. Petitioners sought review in the Sixth Circuit, which denied relief.


Held: The FLRA had jurisdiction over this labor dispute because a State National Guard acts as a federal agency for purposes of the FSLMRS when it hires and supervises dual-status technicians serving in their civilian role.


The question whether petitioners are an “agency” for purposes of the FSLMRS when they act as supervisors of dual-status technicians is bounded by a series of defined statutory terms. 5 U. S. C. §7116(a)(1). The FSLMRS defines “agency” to include the Department of Defense. §7103(a)(3). And each dual-status “technician . . . is an employee of the Department of the Army or the Department of the Air Force,” 32 U. S. C. §709(e); see also 10 U. S. C. §10216(a)(1)(A). Those Departments, in turn, are components of the Department of Defense. §§111(b)(6) and (8). Components of covered agencies plainly fall within the reach of the FSLMRS. See 5 U. S. C. §§7103(a)(12), 7112(a). Thus, when petitioners employ dual-status technicians, they—like components of an agency—exercise the authority of the Department of Defense, a covered agency.


The statutory authority permitting the Ohio Adjutant General to employ dual-status technicians as civilian employees in the federal civil service reinforces this point. See 5 U. S. C. §2105(a)(1)(F). Congress has required the Secretaries of the Army and Air Force to “designate” adjutants general “to employ and administer” technicians. 32 U. S. C. §709(d). That designation is the sole basis for petitioners’ authority to employ technicians performing work in their federal civilian roles. Here, a 1968 order of the Secretary of the Army “designate[s]” and “empower[s]” each adjutant general “to employ and administer the Army National Guard technicians authorized for his State . . . as the case may be.” General Order No. 85, ¶3. Accordingly, dual-status technicians are ultimately employees of the Secretaries of the Army and the Air Force, and petitioners are the Secretaries’ designees for purposes of dual-status technician employment. Should a state adjutant general wish to employ federal dual-status technicians, the adjutant general must do so pursuant to delegated federal authority and subject to federal civil-service requirements. See 5 U. S. C. §2105(a)(1)(F).


The evolution of federal agency-employee relations law and the text of §7135(b) lend further support to the FLRA’s exercise of authority over the Guard. Section 7135(b) explicitly continues prior practice under the provisions of Executive Order No. 11491—the precursor to the FSLMRS—except where specifically revoked by the President or altered by the FSLMRS or corresponding regulations. The 1971 decision in Thompson Field is on point. See Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20. There, the Assistant Secretary of Labor—exercising adjudicative authority under Executive Order No. 11491 analogous to the FLRA’s—held that Mississippi’s National Guard technicians were employees of the Federal Government under Executive Order No. 11491. The Assistant Secretary concluded that the State’s adjutant general had “been designated as an agent of the Secretaries of the Army and the Air Force” in employing and administering dual-status technicians and that this agency relationship created the obligation to comply with Executive Order No. 11491. Id., at 7. The definitions of “employee” and “agency” that Thompson Field examined were materially identical to those that Congress ultimately adopted in the FSLMRS. The Court thus ordinarily presumes that the FSLMRS maintained the same coverage that existed under the prior regime, see, e.g., George v. McDonough, 596 U. S. ___, ___, and the Court identifies nothing to weaken that presumption here. Pp. 5–11.


21 F. 4th 401, affirmed.


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

Futterman v. Kaiser Foundation Health Plan, Inc. (CA1/4 A162323, filed 4/25/23, pub. ord. 5/17/23) Unruh Act Disability Discrimination | Health Plan


Plaintiffs Susan Futterman, Maria Spivey, and Acianita Lucero appeal the summary judgment entered in favor of defendant Kaiser Foundation Health Plan, Inc. (the Plan) on their fourth amended complaint (complaint), which sought, on behalf of a proposed class, injunctive relief under the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200), based on allegations that the Plan violates the California Mental Health Parity Act (Parity Act) (Health & Saf. Code, § 1374.72) by failing to provide coverage for all medically necessary treatment of severe mental illness, and statutory penalties under the Unruh Civil Rights Act (Civ. Code, § 51), based on allegations that Kaiser intentionally discriminates against persons with disabilities by treating members with mental disabilities differently than members with physical disabilities.


On appeal, plaintiffs contend the trial court erred in entering judgment (1) on plaintiff Futterman’s individual claims because triable issues of fact exist as to whether the Plan may be held liable for the acts of its subsidiary by whom Futterman’s health care coverage was issued; (2) on the UCL cause of action because the court failed to consider how the Plan’s own conduct undermines its formal contractual promises of covered treatment in violation of the Parity Act and (3) on the Unruh Civil Rights Act cause of action because triable issues of fact exist as to whether they were denied medically necessary treatment as a result of the Plan’s intentional discrimination.  We conclude the trial court properly entered summary judgment on Futterman’s individual claims, but the court erred in entering summary judgment on the causes of action for violation of the UCL and for violation of the Unruh Civil Rights Act.  Accordingly, we affirm the judgment as to Futterman but reverse the judgment in all other respects.

Perez v. Kaiser Foundation Health Plan (CA1/3 A165140 5/16/23) Arbitration | Employee Health Plan


Vicente and Maria Perez  appeal from a judgment confirming an arbitration award for Kaiser Foundation Health Plan, Inc. (KFHP), Kaiser Foundation Hospitals, and The Permanente Medical Group, Inc. (collectively Kaiser).  The Perezes contend there was no valid arbitration agreement, and therefore the trial court erred by granting Kaiser’s motion to compel arbitration.  They also argue the award must be vacated because the arbitrator failed to comply with his continuing duty to disclose the results of other cases involving Kaiser — cases initially disclosed as pending when the arbitrator was appointed but that resolved during the Perezes’ arbitration.  Unpersuaded by the arguments adequately raised and supported in plaintiffs’ briefs (Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6), we affirm.

Stone v. Alameda Heath System, 88 Cal.App.5th 84 (2023), review granted (May 15, 2023); S279137/A164021 Wage & Hour/Public Entities Exemption


Petition for review after affirmance in part and reversal in part of an order. (1) Are all public entities exempt from the obligations in the Labor Code regarding meal and rest breaks, overtime, and payroll records, or only those public entities that satisfy the "hallmarks of sovereignty" standard adopted by the Court of Appeal in this case? (2) Does the exemption from the prompt payment statutes in Labor Code section 220, subdivision (b), for "employees directly employed by any county, incorporated city, or town or other municipal corporation" include all public entities that exercise governmental functions? (3) Do the civil penalties available under the Private Attorneys General Act of 2004, codified at Labor Code section 2698 et seq., apply to public entities? Review granted/brief due.



Court of Appeal Opinion

Bill Signed by Governor (5/15/23)


AB 113 by Assemblymember Mark Stone (D-Monterey) – Agricultural labor relations

Makes agreed upon changes to AB 2183 (Stone, 2022), which creates additional methods for California farmworkers to elect a collective bargaining representative, specifically as an alternative to polling place election.

Roberts v. Springfield Utility Bd. (9th Cir. 21-36052 5/12/23) First Amendment | Internal Investigation


The panel affirmed the district court’s summary judgment in favor of defendants in an action brought pursuant to 42 U.S.C. § 1983 alleging, in part, First Amendment violations when plaintiff’s former employer, the Springfield Utility Board, restricted him from speaking with potential witnesses and other employees as part of an internal investigation into plaintiff’s alleged misconduct.


The panel held that the communication restriction complained of by plaintiff did not violate the First Amendment because it did not limit plaintiff’s ability to speak about matters of public concern. Nothing in defendants’ instructions barred him from speaking about any alleged mismanagement at the Springfield Utility Board or other topics that would potentially relate to a matter of public concern. Rather, the restrictions merely barred him from personally discussing his own alleged violation of Springfield Utility Board policies—a matter of private, personal concern—with potential witnesses or fellow Springfield Utility Board employees.


The panel addressed the remainder of the issues in a concurrently filed memorandum disposition.

Alberto v. Cambrian Homecare (CA2/4 B314192, filed 4/19/23, pub. ord. 5/11/23) Arbitration | Unconscionability


Jennifer Playu Alberto, the respondent, is a former employee of appellant Cambrian Homecare.  When she was hired, Alberto signed a written arbitration agreement.


Alberto brought wage-and-hour claims against Cambrian.  Cambrian petitioned for arbitration.  The trial court denied the petition.  The trial court found that even if the parties had formed an arbitration agreement, the agreement had unconscionable terms, terms that so permeated the agreement they could not be severed.


We affirm.  The agreement, read together—as it must be—with other contracts signed as part of Alberto’s hiring, contained unconscionable terms.  The trial court had discretion to not sever the unconscionable terms, and to refuse to enforce the agreement.

Young v. RemX Specialty Staffing (CA1/5 A165081 5/10/23) PAGA


Plaintiff Vanessa Young (Plaintiff) appeals from the trial court’s order granting summary judgment to the defendant (Employer) on her claim under the Private Attorneys General Act of 2004 (Lab. Code, § 2699 et seq.; PAGA).  We affirm.


Nirschl v. Schiller (CA2/4 B313105 5/10/23) Defamation | Proposed Severance Agreement


Statements made when an employer terminates an employee are not protected by California’s anti-SLAPP law solely because the employer asks the employee to sign a release of claims. 


Appellants Zachary and Jacquelynn Schiller hired respondent Jewel Nirschl as a nanny.  The Schillers terminated Nirschl’s employment.  They hoped Nirschl would release potential claims against them in exchange for a severance payment.  The Schillers asked a friend (who ran a nanny placement service and had helped hire Nirschl) to propose this to Nirschl.  Nirschl did not sign the proposed severance agreement.  Instead, she brought wage-and-hour claims against the Schillers.


Following discovery, Nirschl amended her complaint to add a claim for defamation.  She based her defamation claim on statements Zachary Schiller made to the intermediary during the negotiations over severance.  The Schillers responded with an anti-SLAPP motion.  They argued that the allegedly defamatory statements were made in anticipation of litigation.  They moved to strike not only the new defamation allegations, but also the entire complaint, including wage-and-hour claims not based on the allegedly defamatory statements.  The trial court denied the anti-SLAPP motion and required the Schillers to pay some of Nirschl’s attorney fees.


We affirm.  As we discuss below, the Schillers did not show that Nirschl’s defamation claim was based on activity protected by the anti-SLAPP law.  And the portion of the Schillers’ motion seeking to strike Nirschl’s non-defamation claims was frivolous.  Thus, the Schillers must pay some of Nirschl’s attorney fees.


Quinn v. LPL Financial LLC (CA2/8 B313414 5/10/23) Misclassification


As a matter of constitutional law, we uphold a statute that retroactively governs worker classification.  Statutory citations are to the Labor Code.

Gola v. University of S.F. (CA1/2 A161477M, filed 4/13/23, mod. 5/9/23) LMRA Preemption




It is ordered that the opinion filed herein on April 13, 2023, be modified as follows:


On the fourth line of the first full paragraph on page four of the concurring and dissenting opinion, the first word “rights” should be changed to “right”.


This modification does not change the judgment.

L.A. Unified School Dist. v. Office of Admin. Hearings (CA2/8 B317353 5/5/23) Teacher Suspension


After years of what the Los Angeles Unified School District (LAUSD) viewed as unsatisfactory teaching performance by certificated teacher Beatrice Essah, LAUSD served Essah with a Notice of Intent to Dismiss and Statement of Charges, which included notice that Essah was suspended without pay.  Essah brought and prevailed on a motion for immediate reversal of suspension (MIRS), and thus received pay during the pendency of the dismissal proceedings.  LAUSD ultimately prevailed in those proceedings.  LAUSD then sought a writ of administrative mandamus in the superior court seeking to set aside the order granting the MIRS and to recoup the salary payments it had made to Essah during the pendency of the proceedings.  The trial court denied the writ, holding that the MIRS order is not reviewable.  The court also ruled (1) LAUSD cannot recover the payments to Essah under its cause of action for money had and received and (2) LAUSD’s cause of action for declaratory judgment is derivative of its other claims.  The trial court entered judgment against LAUSD and in favor of Essah.  We affirm the trial court’s judgment.

Atkins v. St. Cecilia Catholic School (CA2/8 B314220 4/28/23) Ministerial Exception


Appellant Frances Atkins was a long-term employee of respondent St. Cecilia Catholic School.  In her final year of employment, Atkins worked part-time as an art teacher and office administrator.  Following her discharge, Atkins filed this action against St. Cecilia for age discrimination in violation of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.)  The trial court granted St. Cecilia’s motion for summary judgment on the ground that Atkins’s suit was barred by the ministerial exception, a constitutional doctrine that precludes certain employment claims brought against a religious institution by its ministers.  We conclude there are triable issues of material fact as to whether the ministerial exception applies in this case.  We therefore reverse the judgment in favor of St. Cecilia and remand for further proceedings consistent with this opinion.

Cruz v. City of Spokane (9th Cir. 21-35912 4/28/23) Washington State Law | Wrongful Discharge


In an action alleging, in part, wrongful discharge, the panel certified the following question to the Washington Supreme Court: What is the scope of immunity provided by RCW 43.101.390? Specifically, does the provision grant immunity for intentional torts committed in the course of administering the Basic Law Enforcement Academy?

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