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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Nwauzor v. The GEO Group, Inc. (9th Cir. 21-36024 8/13/25) Washington’s Minimum Wage Act
The panel denied a petition for panel rehearing and a petition for rehearing en banc in a case in which the panel affirmed the district court’s judgment in favor of a class of detainees and Washington State in their consolidated actions against GEO Group, Inc., which operates the Northwest Immigration and Customs Enforcement Processing Center in Tacoma, Washington, for violations of Washington’s Minimum Wage Act.
Respecting the denial of rehearing en banc, Chief Judge Murguia and Judge W. Fletcher wrote briefly to emphasize three points concerning Judge Bumatay’s dissent from denial of rehearing en banc. First, the majority opinion’s holding does not discriminate against the federal government. The employment of plaintiffs—civil detainees—was part of a private company’s business model. The Washington Minimum Wage Act regulates this type of private business activity uniformly regardless of whether the entity is contracting with the federal or state government. Second, the panel majority disagreed with the new argument in the dissent from denial of rehearing en banc, not made by any party or amicus, that plaintiffs were not “employees” and Washington therefore could not apply its Minimum Wage Act. Third, the dissent’s equation of the federal government and its contractors is contrary to long-settled law.
Dissenting from the denial of rehearing en banc, Judge Bumatay, joined by Judges Callahan and VanDyke, wrote that this case should be reheard en banc because, in addition to the reasons cited in Judge Bennett’s dissent, reclassifying detainees as “employees” and applying the minimum wage law would interfere with the performance of a federal operation. The panel majority’s decision sets a dangerous precedent because it allows any State to impair any federal policy—no matter how central to the federal government— so long as the State regulates federal contractors rather than the federal government itself.
Dissenting from the denial of rehearing en banc, Judge Collins, joined by Judges R. Nelson and Bress, wrote that, for substantially the reasons set forth in Judge Bennett’s panel dissent, he agreed that the panel majority’s decision contravened controlling Ninth Circuit and Supreme Court precedent applying the doctrines of intergovernmental immunity and federal preemption.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/13/21-36024.pdf
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Williams v. J.B. Hunt Transport, Inc. (9th Cir. 24-933, 24-2970 8/12/25) Wage and Hour | Safe Harbor Provision
The panel affirmed the district court’s judgment in favor of J.B. Hunt Transport, Inc., in a wage and hour putative class action brought by former employees alleging that J.B. Hunt’s compensation scheme—the Driver Pay Plan— violated the California Labor Code.
Plaintiffs, who are California-based truck drivers, alleged that J.B. Hunt violated Cal. Labor Code § 226.2 by improperly paying them on a piece-rate basis without additional compensation for nonproductive time. They also alleged J.B. Hunt committed other Labor Code violations, such as failing to reimburse them for the necessary use of their personal cell phones.
Section 226.2 implemented new rules for employees compensated on a piece-rate basis, meaning that the employee is compensated based on activities completed as opposed to total hours worked. Section 226.2 carves out an exception—known as the “safe harbor” provision—for hybrid compensation plans.
The panel held that the Driver Pay Plan qualified for the safe harbor of § 226.2(a)(7), which requires that an employer “pays an hourly rate of at least the applicable minimum wage for all hours worked” in addition to paying any piece-rate compensation. That is what happened here. J.B. Hunt paid its employees an hourly wage for “all hours,” and supplemented that pay with a piece-rate-based bonus. Accordingly, the panel held that the district court did not err by granting summary judgment to J.B. Hunt as to plaintiffs’ first cause of action for unpaid wages to the extent that this cause of action was based on the purported unlawfulness of the Driver Pay Plan.
The panel held that plaintiffs had not otherwise shown a genuine dispute of material fact as to whether J.B. Hunt was otherwise liable for failing to pay plaintiffs for off-the-clock work.
The panel also held that the district court did not err by granting summary judgment in favor of J.B. Hunt on plaintiffs’ Private Attorneys General Act and non-Private Attorneys General Act itemized wage statement claims.
Turning to the claims decided at trial, the panel held that the district court did not err by entering judgment in favor of J.B. Hunt on plaintiffs’ claims for failure to reimburse necessary business expenses under Cal. Labor Code § 2802 and the derivative reimbursement claims under California’s Unfair Competition Law and PAGA. The district court did not abuse its discretion by improperly limiting evidence, testimony, and argument as to plaintiffs’ individual claims; by excluding evidence that J.B. Hunt changed its reimbursement policy; or by failing to provide adequate jury instructions.
Finally, the panel held that the district court did not abuse its discretion by awarding costs to J.B Hunt following the district court’s denial of the parties’ cross-motions to retax.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/12/24-2970.pdf
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Hohenshelt v. Superior Court (SC S284498 8/11/25) Arbitration | Preemption
The question here is whether the Federal Arbitration Act (FAA; 9 U.S.C. § 1 et seq.) preempts California Code of Civil Procedure section 1281.98, a provision of the California Arbitration Act (CAA; Code Civ. Proc., § 1280 et seq.) that governs the payment of fees in employment and consumer arbitrations. (All undesignated statutory references are to the Code of Civil Procedure.) Section 1281.98 establishes a default rule that when the party who drafted an arbitration agreement is responsible for paying fees and costs to an arbitrator, that party must pay an arbitrator’s invoice “within 30 days after the due date” (§ 1281.98, subds. (a)(1)), and “the arbitration provider shall issue all invoices to the parties as due upon receipt” (id., subd. (a)(2)). The parties may contract around the default rule by specifying in their agreement “the number of days in which the parties to the arbitration must pay any required fees or costs” or by agreeing to an “extension of time for the due date.” (Ibid.) If the drafting party fails to make timely payment, it “waives its right to compel the employee or consumer to proceed with that arbitration” (id., subd. (a)(1)), and the employee or consumer may choose to “withdraw the claim from arbitration” and proceed in court (id., subd. (b)(1)) or “[c]ontinue the arbitration” if the arbitrator agrees (id., subd. (b)(2)).
We hold that section 1281.98, properly construed, is not preempted by the FAA. Although section 1281.98 has been interpreted by various Courts of Appeal to impose an inflexible and sometimes harsh rule resulting in loss of arbitral rights, we reject that rigid construction and instead conclude that the statute does not abrogate the longstanding principle, established by statute and common law, that one party’s nonperformance of an obligation automatically extinguishes the other party’s contractual duties only when nonperformance is willful, grossly negligent, or fraudulent. As explained below, the Legislature sought to deter companies and employers from engaging in strategic nonpayment of arbitration fees; we find no indication that it intended to strip companies and employers of their contractual right to arbitration where nonpayment of fees results from a good faith mistake, inadvertence, or other excusable neglect.
So understood, the operation of section 1281.98 does not deviate from “generally applicable state law contract principles.” (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 572 (Quach); see Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 650 (Viking River).) Nor does it “disfavor[] arbitration” or “interfere[] with fundamental attributes of arbitration” (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 341, 344 (Concepcion)), or “invent special, arbitration-preferring procedural rules” (Morgan v. Sundance, Inc. (2022) 596 U.S. 411, 418 (Morgan)). Instead, the statute aims to ensure that arbitration fees are paid in a timely manner so that parties to an arbitration agreement can move forward in arbitration. (See Dean Witter Reynolds Inc. v. Byrd (1985) 470 U.S. 213, 221 [“The preeminent concern of Congress in passing the [FAA] was to enforce private agreements into which parties had entered . . . .”].)
https://www4.courts.ca.gov/opinions/documents/S284498.PDF
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Munoz v. The Regents of the University of Cal. (CA1/4 A171410 8/5/25) FEHA Discrimination | Immigration Status
Petitioners Jeffry Umaña Muñoz and Iliana Perez challenge the employment policy of the Regents of the University of California (University) that prohibits it from employing undocumented students who do not have federal work authorization. They argue, among other things, that the University’s policy is unlawful because it discriminates in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and specifically section 11028, subdivision (f)(3) of title 2 of the California Code of Regulations, which provides that it is “an unlawful practice for an employer or other covered entity to discriminate against an employee because of the employee’s or applicant’s immigration status, unless the employer has shown by clear and convincing evidence that it is required to do so in order to comply with federal immigration law.”
The University has expressly taken no position on whether its policy is required by federal law. Rather, it argues that its policy does not discriminate based on immigration status and that even if it did, decisions regarding the policy are vested in its sound discretion, and the continued use of the policy is supported by its “analysis of the risks to the University and its students and employees if it hires undocumented students without federal work authorization, including the significant risk that the federal government will read [the Immigration Reform and Control Act of 1986 (IRCA) (8 U.S.C. § 1101 et seq.)] to apply to the University and initiate enforcement action and a federal court may agree.”
We conclude that the University’s employment policy facially discriminates based on immigration status and that, in light of applicable state law, the discriminatory policy cannot be justified by the University’s proffered reason. As a result, the University abused its discretion when it relied on improper criteria in deciding to continue using its policy. Accordingly, we will issue a writ of mandate directing the University to reconsider its policy based on proper criteria.
https://www4.courts.ca.gov/opinions/documents/A171410.PDF
McMahon v. World Vision Inc. (9th Cir. 24-3259 8/5/25) Sexual Orientation and Marital Status Discrimination | Ministerial Exception
The panel reversed the district court’s summary judgment for Aubry McMahon and remanded for entry of summary judgment in favor of World Vision, Inc., in McMahon’s lawsuit against World Vision alleging discrimination based on sex, sexual orientation, and marital status under Title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination (WLAD).
World Vision extended a job offer to McMahon for a remote position as a customer service representative (CSR). After learning that McMahon was in a same-sex marriage, World Vision revoked its job offer.
The district court initially granted summary judgment for World Vision based on the church autonomy doctrine. Reversing itself after McMahon moved for reconsideration, the district court decided that the church autonomy doctrine did not apply because World Vision had acted under a “facially discriminatory hiring policy,” so the court could resolve the case using “neutral principles of law” without becoming entangled in religion. Rejecting World Vision’s ministerial exception defense and other defenses, the district court entered summary judgment for McMahon after concluding that World Vision rescinded her job offer pursuant to a policy that facially discriminated based on sex, sexual orientation, and marital status in violation of Title VII and the WLAD.
Renewing on appeal the arguments it made before the district court, World Vision argued, inter alia, that CSRs fall under the ministerial exception to employment discrimination laws because CSRs serve a pivotal role in World Vision’s religious mission as its public voice.
The panel held that the district court erred by rejecting World Vision’s ministerial exception defense. The ministerial exception bars McMahon’s employment discrimination claims because the record shows that CSRs perform key religious functions central to World Vision’s mission. CSRs are responsible for effectively communicating World Vision’s worldwide ministries and projects to donors and supporters. CSRs engage with donors in prayer and give them the opportunity to join World Vision’s religious mission through financial contributions. Because each of these “vital religious duties,” Our Lady of Guadalupe Sch. v. Morrissey-Berru, 591 U.S. 732, 756 (2020), lies at the core of World Vision’s religious mission of “working with the poor and oppressed to promote human transformation, seek justice and bear witness to the good news of the Kingdom of God,” the ministerial exception applies to CSRs and bars McMahon’s claims.
The panel accordingly reversed the district court’s grant of summary judgment for McMahon and remanded for entry of summary judgment in favor of World Vision.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/05/24-3259.pdf
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Hirdman v. Charter Communications, LLC (CA4/1 D084304 8/4/25) PAGA
Bradley Hirdman filed a complaint against his former employer Charter Communications, LLC (Charter) alleging a single cause of action for civil penalties under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.). Hirdman’s lawsuit was premised on Charter’s alleged violations of various Labor Code sections, including section 246, which governs an employer’s calculation and payment of sick leave to its employees. The parties filed cross-motions for summary adjudication on this issue.
According to Hirdman, Charter improperly classified him as an “exempt employee” for purposes of calculating his paid sick leave under section 246, subdivision (l), when it should have classified him as a “nonexempt employee” and thus used a different calculation method. Charter argues that Hirdman was an “exempt employee” as an outside salesperson who was exempt from overtime compensation requirements. (§ 1171.) The trial court agreed with Charter and thus granted its motion for summary adjudication, ultimately entering judgment in its favor.
Reviewing the issue de novo, we agree with the trial court that the statutory language is unambiguous, and section 246, subdivision (l)(3) applies to exempt outside salespersons like Hirdman. We therefore affirm the judgment.
https://www4.courts.ca.gov/opinions/documents/D084304.PDF
Platt v. Sodexo, S.A. (9th Cir. 23-55737 8/4/25) ERISA
The panel affirmed in part and reversed in part the district court’s judgment against Robert Platt, and remanded, in a case in which Platt sued his employer, Sodexo, Inc. and Sodexo, S.A. (collectively, “Sodexo”), claiming that a monthly tobacco surcharge on his employee health insurance premiums violated the Employee Retirement Income Security Act (ERISA).
Platt brings claims on behalf of himself and other plan participants to recover losses under ERISA § 502(a)(1)(B) and § 502(a)(3), and a breach of fiduciary duty claim on behalf of the employer-sponsored health insurance plan (“the Plan”) for losses under ERISA § 502(a)(2). Sodexo seeks to compel arbitration pursuant to an arbitration provision that it unilaterally inserted into the Plan after Platt joined the Plan. The district court denied Sodexo’s motion to compel arbitration and held that there was no enforceable arbitration agreement because Sodexo impermissibly unilaterally modified the Plan to add the arbitration provision, and Platt never agreed to arbitrate his claims.
The panel agreed that an employer does not create a valid arbitration agreement by unilaterally modifying an ERISA-governed plan to add an arbitration provision. Instead, the employer must obtain consent from the relevant party to form a valid arbitration agreement.
The panel held that Platt is the relevant consenting party for claims under ERISA § 502(a)(1)(B) and § 502(a)(3) in which he seeks to recover losses by plan participants. Platt did not consent to arbitration because he did not receive sufficient notice of the addition of the arbitration provision or that his continued participation in the Plan would constitute consent to arbitration.
The panel held that the Plan is the relevant consenting party for the breach of fiduciary duty claim under ERISA § 502(a)(2) in which Platt seeks redress for losses by the Plan. The Plan consented to arbitration because its terms cede broad authority to Sodexo to amend the Plan’s terms.
Platt argued in the alternative that even if the Plan consented to the arbitration provision, the provision is still unenforceable because a prohibition on representative actions, which are statutorily guaranteed under §§ 502(a)(2) and 409(a), violates the effective vindication doctrine. The panel held that the provision prohibiting representative actions is invalid under the effective vindication doctrine.
Platt also argued that certain clauses in the arbitration agreement are unconscionable. The panel held that ERISA does not preempt Platt’s unconscionability defenses, which are rooted in federal common law.
The panel thus affirmed the district court’s denial of Sodexo’s motion to compel arbitration as to Platt’s claims under ERISA § 502(a)(1)(B) and § 502(a)(3). The panel reversed in part the district court’s denial of Sodexo’s motion to compel arbitration as to Platt’s breach of fiduciary duty claim under ERISA § 502(a)(2), and remanded with instructions for the district court to consider, in the first instance, Platt’s unconscionability defenses, and the severability of both the representative action waiver and any
of the arbitration clauses that it may find unconscionable.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/04/23-55737.pdf
Lister v. City of Las Vegas (9th Cir. 24-3933 8/4/25) Title VII Employment Discrimination
The panel affirmed the district court’s entry of judgment for the City of Las Vegas in Latonia Lister’s lawsuit for employment discrimination, and affirmed the district court’s denial of Lister’s motion for new trial, after a jury found the City did not violate Title VII but nevertheless awarded Lister damages.
The jury found: (1) an incident was severe or pervasive and objectively and subjectively offensive to a reasonable person; but that (2) the incident was not motivated by race or gender; (3) the City did not discriminate against Lister in violation of Title VII; and (4) the City did not retaliate against Lister for reporting the April 7 incident in violation of Title VII. Despite finding no liability, the jury answered a damages question, awarding Lister $150,000. The district court concluded that it could reconcile the verdict without resubmitting it to the jury, and set aside the damages award.
The panel reviewed for plain error two jury instructions that Lister argued contained prejudicial errors. The panel held that when Jury Instruction 12 is read as a whole, the exclusion of race and sex from the first element does not amount to an error—let alone a prejudicial one—as the instruction’s opening paragraph refers to the protected characteristics of race and sex, clearly instructing the jury to assess the elements of a hostile work environment on these grounds.
The panel held that, setting aside the lack of prejudice, there is no conflict between Jury Instruction 12, which directed the jury to assess whether Lister experienced a hostile work environment on the grounds of race and gender, and Jury Instruction 9, which set forth the standard of proof for a gender- or race-based hostile-work-environment claim. The panel held that the district court did not abuse its discretion when it did not resubmit the verdict to the still available jury. The panel noted this court’s precedent holding that, where the jury is still available, a district court’s decision to resubmit an inconsistent verdict for clarification is within its discretion. Facing the opposite question here, the panel held that a district court has discretion not to resubmit an inconsistent verdict for clarification when the jury is still available. Here, the district court’s decision to poll the jury—with both parties’ consent—clarified the seemingly inconsistent liability findings. By confirming the relevant findings of fact, the district court confirmed a clear statement of no liability from the jury. At that point, the district court had sufficient legal grounds to discharge the jury and reconcile the verdict on its own. Given the jury’s finding that there was no race- or sex-based discrimination or retaliation, the jury’s answer to the damages question is best treated as surplusage.
The panel held that because the district court correctly concluded that the verdict could be reconciled, the district court did not abuse its discretion in denying Lister’s motion for a new trial.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/04/24-3933.pdf
Osuna v. Spectrum Security Services, Inc., 111 Cal.App.5th 516 (2025), review granted, 2025 WL 2167312 (July 30, 2025) S291614/B338047
Petition for review after reversal and remand of order sustaining demurrer without leave to amend. Further action in this matter is deferred pending consideration and disposition of related issues in Leeper v. Shipt, S289305 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Review granted/holding for lead case.
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American Fed. of Gov’t Employees, AFL-CIO, et al. v. Trump, et al. (9th Cir. 25-4014 en banc 8/1/25) Federal Service Labor-Management Relations Statute
The United States seeks an emergency stay of the district court’s preliminary injunction of Executive Order 14,251, Exclusions From Federal Labor-Management Relations Programs, 90 Fed. Reg. 14,553 (Apr. 3, 2025), which 4 25-4014 excludes certain federal agencies and subdivisions from collective bargaining requirements based on national security concerns. We grant the government’s request for a stay of the injunction pending appeal.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/08/01/25-4014.pdf
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Health Freedom Def. Fund, Inc. v. Carvalho (9th Cir. 22-55908 en banc 7/31/25) COVID-19 Vaccinations
The en banc court affirmed the district court’s judgment on the pleadings in favor of the Los Angeles Unified School District (LAUSD) in an action brought pursuant to 42 U.S.C. § 1983 alleging that LAUSD’s COVID-19 vaccination policy (the Policy), which required all employees to be fully vaccinated, violated plaintiffs’ substantive due process and equal protection rights.
Plaintiffs alleged that the Policy violated their fundamental right to bodily integrity in refusing medical treatment because COVID-19 vaccines are therapeutic treatments that reduce symptoms but do not prevent infection or transmission and additionally pose significant health risks to the recipients. Plaintiffs also alleged that the Policy violated their right to equal protection because it arbitrarily classifies employees based on their vaccination status.
As a threshold issue, the en banc court held that this case was not moot. Although LAUSD rescinded the Policy shortly after oral argument before the three-judge panel, the court could still grant effective relief by ordering reinstatement of the individual plaintiffs who remain terminated from their original positions under the Policy.
On the merits, the en banc court, joining all the sister circuits that have considered substantive due process challenges to COVID-19 vaccine mandates, held that the Policy was subject to rational basis review because Jacobson v. Massachusetts, 197 U.S. 11 (1905), which upheld a smallpox vaccine mandate, remains binding. Jacobson holds that the constitutionality of a vaccine mandate, like the Policy here, turns on what reasonable legislative and executive decisionmakers could have rationally concluded about whether a vaccine protects the public’s health and safety, not whether a vaccine actually provides immunity to or prevents transmission of a disease.
The Policy survives such review, as the LAUSD could have reasonably concluded that COVID-19 vaccines would protect the health and safety of its employees and students. For this reason, plaintiffs’ equal protection claim also failed under rational basis review. The en banc court therefore affirmed the district court’s order granting LAUSD’s motion for judgment on the pleadings.
Dissenting, Judge Owens wrote that the court lacks jurisdiction because the case is moot, given that there is no longer any policy for the court to enjoin or declare unlawful. Nothing in the record (or the world) even hints at the possibility that LAUSD would resurrect its COVID-19 vaccine mandate. The majority’s assertion that the complaint’s boilerplate language fairly encompassed a request for employment reinstatement did not survive close inspection.
Dissenting in part, Judge Lee, joined by Judge Collins, wrote that although he agrees that the case is not moot, he believes that the court should not affirm the dismissal of this lawsuit without permitting the plaintiffs to offer evidence to rebut government officials’ far-reaching claims. Contrary to the majority, he read the Supreme Court’s decision in Jacobson as applying only if a vaccine prevents the transmission and contraction of a disease. The plaintiffs here plausibly claimed—at least at the pleading stage—that the COVID-19 vaccine mitigates serious symptoms but does not “prevent transmission or contraction of COVID19.” And if that is true, then Jacobson’s rational basis review does not apply, and the court must examine the vaccine mandate under a more stringent standard of review. Ultimately, the plaintiffs may be wrong about the COVID-19 vaccine, but they should be given a chance to challenge the government’s assertions about it.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/30/22-55908.pd
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Bills Signed by Governor (7/30/25)
SB 521 by Senator Lena Gonzalez (D-Long Beach) – Public employment: disqualification
SB 648 by Senator Lola Smallwood-Cuevas (D-Los Angeles) – Employment: gratitudes: enforcement
SB 652 by Senator Laura Richardson (D-South Bay) – Private security services: security guards: training
SB 693 by Senator Dave Cortese (D-Silicon Valley) – Employees: meal periods
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Bill Signed by Governor (7/29/25)
AB 138 by the Committee on Budget – State employment: state bargaining units.
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Burch v. City of Chubbuck (9th Cir. 24-3646 7/26/25) First Amendment | Retaliation
The panel affirmed the district court’s summary judgment for the City of Chubbuck, Idaho, and the City’s Mayor, Kevin England, in Rodney Burch’s action, under 42 U.S.C. § 1983 and Idaho state law, alleging that defendants took adverse employment actions against him because of his protected speech made while he was the Public Works Director.
Burch’s speech falls into two categories: (1) his criticisms of England’s policies and performance as Mayor, as well as his proposal and advocacy to create a city administrator position as a solution to England’s alleged deficiencies; and (2) his political yard sign supporting England’s opponent during England’s re-election campaign.
Applying a five-step inquiry to balance Burch’s interest as a citizen to comment on matters of public concern and the interest of the State as an employer, the panel held that Burch’s First Amendment retaliation claim failed as a matter of law. At step one, Burch’s speech addressed a matter of public concern. At step two, Burch’s yard sign supporting England’s mayoral opponent was protected speech, but his criticism of England’s policies and performance and advocacy for adding a city administrator was made pursuant to his official duties as the Public Works Director and therefore was unprotected. At step three, a reasonable factfinder could find that Burch suffered at least one adverse employment action—though not a constructive discharge— and that Burch’s yard sign was a “substantial or motivating factor” in at least one of the adverse employment actions. However, at steps four and five, in which the burden shifts to defendants, the panel held that there was no genuine dispute that defendants had an adequate justification for their adverse actions—including asking Burch to resign, transferring his duties and reducing his workload—and would have reached the same employment decisions had Burch never erected his yard sign.
Finally, the panel held that the district court properly granted summary judgment for defendants on Burch’s Idaho state law claim because none of the adverse employment actions occurred within the statute of limitations.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/25/24-3646.pdf
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Bills Signed by Governor (7/14/25)
AB 354 by Assemblymember Michelle Rodriguez (D-Chino) – Commission on Peace Officer Standards and Training
​AB 751 by Assemblymember Mike Gipson (D-Carson) – Rest periods: petroleum facilities: safety-sensitive positions.
AB 1034 by Assemblymember Anamarie Ávila Farías (D-Concord) – Teacher credentialing: programs of professional preparation: youth mental health
SB 229 by Senator Marie Alvarado-Gil (R-Jackson) – Peace officers: deputy sheriffs
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Egelston v. State Personnel Bd. (CA2/6 B337182 7/15/25) State Personnel Board | State Employee Dismissal
The Department of Corrections and Rehabilitation (Department) issued a Notice of Adverse Action (NOAA) dismissing appellant Jonathan Egelston from his position as a youth correctional officer assigned to the Ventura Youth Correctional Facility after he assaulted and harassed his girlfriend J.G. and then lied about it. After the State Personnel Board (SPB) upheld appellant’s dismissal following an evidentiary hearing, he petitioned for a writ of mandate to reverse that decision and the trial court denied the petition.
Appellant contends that all claims and issues related to the findings that he assaulted J.G. and lied about it are barred by the doctrines of res judicata and collateral estoppel because prior to issuance of the NOAA, the family law court dismissed J.G.’s request for a domestic violence restraining order (DVRO) without prejudice. We conclude this contention is forfeited and in any event lacks merit. Accordingly, we affirm.
https://www4.courts.ca.gov/opinions/documents/B337182.PDF
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McMahon v. New York (US 24A1203 ord. 7/14/25) Executive Order 14242 U.S. Department of Education (Title IX, enforced by DOE, also covers employment)
The application for stay presented to JUSTICE JACKSON and by her referred to the Court is granted. The May 22, 2025 preliminary injunction entered by the United States District Court for the District of Massachusetts, case No. 1:25–cv–10601, is stayed pending the disposition of the appeal in the United States Court of Appeals for the First Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN and JUSTICE JACKSON join, dissenting.
https://www.supremecourt.gov/opinions/24pdf/24a1203_pol1.pdf
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Williams v. Alacrity Solutions Group, LLC, 110 Cal. App. 5th 932 (2025), review granted (Jul. 9, 2025); S291199/B335445 PAGA
Petition after affirmance of judgment. Briefing deferred pending decision in Leeper v. Shipt, Inc., S289305, which presents the following issues: (1) Does every Private Attorneys General Act (Cal. Lab. Code § 2698 et seq.) (PAGA) action necessarily include both individual and non-individual PAGA claims, regardless of whether the complaint specifically alleges individual claims? (2) Can a plaintiff choose to bring only a non-individual PAGA action? Holding for lead case.
Governor Restructures State Government: Civil Rights Department (7/11/25)
The Civil Rights Department (CRD) will now report to the new California Housing and Homelessness Agency (CHHA).
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Columbia Legal Services v. Stemilt AG Services, LLC (9th Cir. 23-3548 7/10/25) Protective Order | Settled Agricultural Workers Class Action
The panel vacated the district court’s protective order, entered in a now-settled class action brought by agricultural workers, and remanded for further proceedings.
The protective order imposed a limitation on class counsel’s use outside this action of information obtained during discovery. The district court ordered: “Plaintiffs must seek leave of this court before they—or counsel— utilize discovery from this action in other advocacy.” The district court warned it would “grant leave only in limited circumstances.”
The panel held that nonparty counsel was “aggrieved” by the protective order, and thus had Article III standing to appeal, because counsel would clearly benefit from having the ability to use information obtained in discovery in the class action against the defendant in other advocacy. In addition, in the settlement agreement, counsel did not waive its right to appeal the discovery order.
The panel held that discovery is presumptively public, and a district court must find “good cause” before issuing a protective order under Fed. R. Civ. P. 26(c)(1). Here, the district court abused its discretion by entering a broad and undifferentiated order with only a brief explanation and no finding of good cause to support the prohibition against counsel using any information and documents obtained in discovery in this case without prior approval from the district court.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/10/23-3548.pdf
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Adams v. County of Sacramento (9th Cir. 23-15970 amend. opn., rehrg. & rehrg. en banc den., no further pets. 7/9/25) First Amendment | Employment Retaliation
The panel amended its prior opinion filed on September 9, 2024, and published at 116 F.4th 1004 (9th Cir. 2024), denied a petition for panel rehearing, denied a petition for rehearing en banc, and ordered that no further petitions shall be entertained in this interlocutory appeal in which the panel affirmed the district court’s dismissal of First Amendment retaliation and derivative conspiracy claims brought by Kate Adams, the former Chief of Police for the City of Rancho Cordova.
Adams alleged that she was forced to resign from her post over allegations that while working for the Sacramento County Sheriff’s Office she sent racist text messages.
In evaluating the First Amendment rights of a public employee, the threshold inquiry is whether the statements at issue substantially address a matter of public concern. Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest.
The panel examined the plain language, form, and context of Adams’s two text messages, and held that under the circumstances presented by this case, sending private text messages to two friends during “a friendly, casual text message conversation,” forwarding offensive racist spam images, and complaining about the images did not constitute “a matter of legitimate public concern” within the meaning of Pickering v. Board of Education, 391 U.S. 563 (1968). Adams’s speech was one of personal interest, not public interest. Accordingly, the panel affirmed the district court’s dismissal of Adams’s First Amendment retaliation and conspiracy claims.
Dissenting, Judge Callahan stated that Adams should have the chance to hold the County accountable for its harsh reaction to her speech. The public concern test should be applied leniently in this case where Adams’s speech did not fall within the realm of workplace grievances, had no arguable impact on her employer, and touched on matters of social or political concern.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/09/23-15970.pdf
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Trump v. American Federation of Government Employees (24A1174 Ord. Stay Granted 7/8/25) Executive Order 14210 Federal Agencies RIF
The application for stay presented to Justice Kagan and by her referred to the Court is granted. The May 22, 2025 preliminary injunction entered by the United States District Court for the Northern District of California, case No. 3:25–cv–3698, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court.
The District Court’s injunction was based on its view that Executive Order No. 14210, 90 Fed. Reg. 9669 (2025), and a joint memorandum from the Office of Management and Budget and Office of Personnel Management implementing that Executive Order are unlawful. Because the Government is likely to succeed on its argument that the Executive Order and Memorandum are lawful—and because the other factors bearing on whether to grant a stay are satisfied— we grant the application. We express no view on the legality of any Agency RIF and Reorganization Plan produced or approved pursuant to the Executive Order and Memorandum. The District Court enjoined further implementation or approval of the plans based on its view about the illegality of the Executive Order and Memorandum, not on any assessment of the plans themselves. Those plans are not before this Court.
JUSTICE SOTOMAYOR, concurring in the grant of stay. I agree with JUSTICE JACKSON that the President cannot restructure federal agencies in a manner inconsistent with congressional mandates. See post, at 13. Here, however, the relevant Executive Order directs agencies to plan reorganizations and reductions in force “consistent with applicable law,” App. to Application for Stay 2a, and the resulting joint memorandum from the Office of Management and Budget and Office of Personnel Management reiterates as much. The plans themselves are not before this Court, at this stage, and we thus have no occasion to consider whether they can and will be carried out consistent with the constraints of law. I join the Court’s stay because it leaves the District Court free to consider those questions in the first instance.
https://www.supremecourt.gov/opinions/24pdf/24a1174_h3ci.pdf
Trump v. American Federation of Government Employees (24A1174 Jackson, J., dissenting from grant of stay 7/8/25) Executive Order 14210 Federal Agencies RIF
JUSTICE JACKSON, dissenting from the grant of application for stay. Under our Constitution, Congress has the power to establish administrative agencies and detail their functions. Thus, over the past century, Presidents who have attempted to reorganize the Federal Government have first obtained authorization from Congress to do so. The President sharply departed from that settled practice on February 11, 2025, however, by allegedly arrogating this power to himself. With no mention of congressional buy-in, the President’s Executive Order No. 14210 mandates a “critical transformation” of the Federal Government, to be accomplished by “eliminat[ing] or consolidat[ing]” existing agencies and ordering agency heads to “promptly undertake preparations to initiate large-scale reductions in force.” 90 Fed. Reg. 9669, 9670.
This unilateral decision to “transfor[m]” the Federal Government was quickly challenged in federal court. As relevant here, the District Judge thoroughly examined the evidence, considered applicable law, and made a reasoned determination that Executive Branch officials should be enjoined from implementing the mandated restructuring until this legal challenge to the President’s authority to undertake such action could be litigated. But that temporary, practical, harm-reducing preservation of the status quo was no match for this Court’s demonstrated enthusiasm for greenlighting this President’s legally dubious actions in an emergency posture.
The Court has now stayed the District Court’s preliminary injunction—authorizing implementation of Executive Order No. 14210, and all the harmful upheaval that edict entails, while the lower courts evaluate its lawfulness. In my view, this was the wrong decision at the wrong moment, especially given what little this Court knows about what is actually happening on the ground.
To be specific: What is at issue here is whether Executive Order No. 14210 effects a massive restructuring of the Federal Government (the likes of which have historically required Congress’s approval), on the one hand, or minor workforce reductions consistent with existing law, on the other. One needs facts to answer that critical question, and the District Court not only issued such preliminary findings based on actual evidence, it is also the tribunal best positioned to make that determination, at least initially. Put differently, from its lofty perch far from the facts or the evidence, this Court lacks the capacity to fully evaluate, much less responsibly override, reasoned lower court factfinding about what this challenged executive action actually entails. I respectfully dissent because, in addition to the Government’s failure to show the exigency or irreparable harm that is required for emergency relief, this Court could not possibly know in this posture whether the Government is likely to succeed on the merits with respect to such a fact-dependent dispute. So it should have left well enough alone.
https://www.supremecourt.gov/opinions/24pdf/24a1174_h3ci.pdf#page=3
CRST Expedited, Inc. v. Super. Ct. (CA5 F088569 7/7/25) Headless PAGA Action
In this writ proceeding, we issued an order to show cause to address a controversial question of statutory interpretation involving the Labor Code Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.). PAGA stated that any provision of the Labor Code “that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency … for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.” (§ 2699, former subd. (a), italics added.) The question is whether this text authorized an aggrieved employee to bring a lawsuit that seeks to recover civil penalties imposed for Labor Code violations suffered only by other employees.
This type of PAGA action is referred to as “headless” because the employee prosecuting the action has abandoned the claims for civil penalties imposed for violations the employee suffered personally. The reason an employee would abandon the so-called “individual PAGA claims” is to avoid arbitrating them under the Federal Arbitration Act (FAA; 9 U.S.C. § 1, et seq.), as interpreted by Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 (Viking River). Avoiding arbitration has two advantages. First, if there is no arbitration of the individual PAGA claims, there would be no stay of the trial court proceedings on the other claims pending completion of the arbitration. Thus, a delay would be avoided. Second, an arbitration might result in the arbitrator finding the employee was not aggrieved—that is, had not personally suffered a Labor Code violation. (See § 2699, former subd. (c) [definition of aggrieved employee].) Such a finding could cause the employee to lose standing to pursue the other PAGA claims in court.
The parties’ arguments on whether headless PAGA actions are allowed focus on the meaning of the phrase “on behalf of himself or herself and other current or former employees” in a sentence that uses the permissive verb “may.” (§ 2699, former subd. (a), italics added.) We recognize that and usually, but not always, is interpreted as a conjunctive that means “also” or “an additional thing.” (People v. Reynoza (2024) 15 Cal.5th 982, 991.) In exceptional situations, however, it is sometimes “ ‘fair and rational’ ” to construe and disjunctively. (Ibid.) We conclude PAGA is not an ordinary statute, the problems it attempts to remedy are unusual, and Viking River drastically altered the legal landscape in which PAGA is applied. These exceptional circumstances and the PAGA’s underlying purpose support the following legal conclusions. First, the and in former subdivision (a) of section 2699 is ambiguous. Second, PAGA’s purpose of encouraging enforcement of California’s labor laws is best served by interpreting the ambiguous and liberally to include both and and or. Thus, the subdivision permitted the employee, as a representative of the Labor and Workforce Development Agency (LWDA), to bring a PAGA action seeking the recovery of civil penalties (1) for the Labor Code violations suffered only by the employee, (2) for the Labor Code violations suffered only by other employees, or (3) both. In short, headless PAGA actions were among the choices allowed the LWDA’s representatives.
We therefore deny the employer’s petition for a writ of mandate.
https://www4.courts.ca.gov/opinions/documents/F088569.PDF
Lampkin v. County of Los Angeles (CA2/4 B336806 7/8/25) Labor Code section 1102.5 Whistleblower Retaliation | Same-Decision Defense
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Labor Code section 1102.5 prohibits employers from retaliating against whistleblowing employees, and allows an employee who “brings a successful action” under that section to recover their attorney’s fees. However, section 1102.6 affords employers an affirmative defense, if they prove the alleged retaliatory action “would have occurred for legitimate, independent reasons” had the employee not been a whistleblower. This type of defense is commonly known as a “same-decision defense.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 712 (Lawson), quoting Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239 (Harris).) Cases where this defense may apply are known as “mixed-motive” cases. (See Harris, supra, 56 Cal.4th at p. 214–215.)
Here, respondent D’Andre Lampkin (Lampkin) proved the elements of a whistleblower retaliation claim, but appellant County of Los Angeles (County) established the affirmative defense provided by section 1102.6, and Lampkin obtained no relief. The trial court nevertheless awarded Lampkin his attorney’s fees, and the County now appeals. We must decide if Lampkin has brought a “successful action” under section 1102.5, and is therefore entitled to a fee award. We hold an employee’s action is not successful if the defendant employer has established the same-decision defense and the plaintiff obtains no relief.
https://www4.courts.ca.gov/opinions/documents/B336806.PDF
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Allos v. Poway Unified Sch. Dist. (CA4/1 D084062, filed 6/24/25, ord. pub. 7/7/25) Gov. Code section 855.4 Defense | FEHA, Labor Code, and COVID-19
Kheloud Allos filed suit against her former employer, Poway Unified School District (PUSD), claiming violations of the Fair Employment and Housing Act (Gov. Code, § 12900 et seq., FEHA) and the Labor Code based on PUSD’s refusal to allow her to work exclusively from home. After the parties engaged in discovery, PUSD filed a motion for summary judgment asserting Allos’s claims were not actionable because they were barred by Government Code section 855.4 and because Allos could not establish any triable issues of material fact for her claims. The trial court granted PUSD’s motion and entered judgment in its favor. On appeal, Allos argues she did establish triable issues of fact and that section 855.4 does not bar her claims. As we explain, we reject Allos’s arguments and affirm the judgment.
https://www4.courts.ca.gov/opinions/documents/D084062.PDF
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Brown v. City of Inglewood (SC S280773 per curiam 7/7/25) Elected Officials | Labor Code section 1102.5 Whistleblower Retaliation
California’s Legislature has built a “powerful network” of “whistle-blower protection laws . . . available to those who seek to expose wrongdoing.” (Garcetti v. Ceballos (2006) 547 U.S. 410, 425.) Labor Code section 1102.5, a part of that network, “provides whistleblower protections to employees.” (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 709; § 1102.5, subd. (b) [“An employer . . . shall not retaliate against an employee”].) For purposes of section 1102.5, the Legislature has defined the term “employee” so it “includes, but is not limited to, any individual employed by the state or any subdivision thereof, any county, city, city and county, including any charter city or county, and any school district, community college district, municipal or public corporation, political subdivision, or the University of California.” (§ 1106.) In this case, we consider whether an elected treasurer of the City of Inglewood is an employee under section 1106 who may invoke section 1102.5’s protections and sue for retaliation. We conclude such an elected official may not invoke the statute’s protections. Because the Court of Appeal reached the same conclusion, we affirm its judgment.
https://www4.courts.ca.gov/opinions/documents/S280773.PDF
Bill Signed by Governor (7/3/25)
AB 1138 by Assemblymember Zbur (D-Los Angeles) and Senator Allen (D-Santa Monica): Income and corporate taxes: tax credits: motion pictures
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Oakland Unified School Dist. v. Pub. Employment Relations Bd. (CA1/5 A171007 7/2/25) Educational Employment Relations Act
Ever since the Legislature began giving public employees the right to collectively bargain through laws like the Educational Employment Relations Act (EERA), Gov. Code, §§ 3540–3549.3, the issue of whether strikes are legal under those laws has been lurking in the background. Despite this, no California court has squarely addressed this issue. We fix this curious omission and hold that public school employees may engage in unfair practice strikes under EERA.
The Oakland Education Association, CTA/NEA (OEA) is the exclusive representative of certain employees of the Oakland Unified School District (District), a public school employer. Following a dispute over school closures approved by the District, OEA members conducted a work stoppage (strike) that lasted one day.
OEA filed an unfair practice charge with the Public Employment Relations Board (PERB), claiming that the District committed unfair practices in violation of EERA when it approved the school closures. As often happens in these labor disputes, the District filed a competing unfair practice charge with PERB, claiming that OEA’s one-day strike constituted an unfair practice in violation of EERA. After PERB issued separate complaints based on these competing charges, the parties agreed to bifurcate the hearing on their two complaints. In its first decision, PERB held that the District violated EERA; in its second decision, PERB held that OEA did not.
The District does not challenge the first PERB decision. Instead, it challenges the second PERB decision, which upheld the legality of OEA’s strike because it was provoked by the District’s unfair practices (unfair practice strike) and because OEA negotiated in good faith. We reject the District’s challenge. In doing so, we conclude that PERB did not clearly err in finding that unfair practice strikes are allowed under EERA. We further conclude that OEA’s unfair practice strike—which lasted one day—did not violate the rights to education, due process, or equal protection and that neither EERA nor the due process clause prohibits pre-impasse unfair practice strikes conducted before PERB has determined that the public school employer has, in fact, committed an unfair practice. Finally, we conclude that PERB erred by excluding evidence of educational harm but that this error was harmless. We therefore affirm.
https://www4.courts.ca.gov/opinions/documents/A171007.PDF
Taylor v. L.A. Unified School Dist. (CA2/3 B333718, filed 6/9/25, pub. 7/2/25) Negligent Hiring & Supervision
Kenya Taylor hired Los Angeles Unified School District (LAUSD) employee Tyler Martin-Brand to babysit her six-year-old son, Dayvon, at Martin-Brand’s home during the winter break in 2019. Tragically, Martin-Brand killed Dayvon. Taylor sued LAUSD on the theory that it negligently hired and supervised Martin-Brand. A jury agreed and awarded Taylor $30 million in damages. LAUSD now appeals from the trial court order denying its motion for judgment notwithstanding the verdict (JNOV) and from the judgment.
We conclude LAUSD is immune from liability for Dayvon’s off-campus death pursuant to Education Code section 44808. We therefore reverse the order and judgment and direct the trial court to enter judgment for LAUSD.
https://www4.courts.ca.gov/opinions/documents/B333718.PDF
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Harrington v. Old Cracker Barrel Old Country Store, Inc. (9th Cir. 23-15650 24-1979 7/1/25) FLSA
The panel (1) vacated the district court’s order granting preliminary certification of a collective action under the Fair Labor Standards Act and approving notice to a group of optin plaintiffs and (2) remanded for further proceedings.
29 U.S.C. § 216(b) allows employees alleging violations of minimum-wage and overtime-compensation requirements to litigate their claims collectively with other “similarly situated” plaintiffs. In a typical case, plaintiffs will, at some point around the pleading stage, move for preliminary certification of the collective action, contending that they have at least facially satisfied the “similarly situated” requirement. If the district court grants preliminary certification, then defendants may move for decertification at a later stage.
Here, a group of current and former employees of Cracker Barrel Old Country Store, Inc., alleged that Cracker Barrel violated the Fair Labor Standards Act in connection with its wages for tipped workers. The district court granted these plaintiffs’ motion for preliminary certification and approved notice to a group of prospective opt-in plaintiffs, which included employees who may have entered into arbitration agreements with Cracker Barrel as well as out-of-state employees with no apparent ties to Cracker Barrel’s operations in the forum state of Arizona.
The panel held that the district court did not abuse its discretion in following the above-described two-step procedure in granting preliminary certification. The panel also held that where the existence and validity of an arbitration agreement was in dispute, the district court was not required to determine the arbitrability of absent employees’ claims prior to authorizing notice.
Joining the majority of other circuits reaching the issue, the panel held that Bristol-Myers Squibb Co. v. Superior Court of Cal., 582 U.S. 255 (2017), applies in actions under the Fair Labor Standards Act in federal court. Consequently, where the basis for personal jurisdiction in a collective action is specific personal jurisdiction, the district court must assess whether each opt-in plaintiff’s claim bears a sufficient connection to the defendant’s activities in the forum state. Because the district court authorized nationwide notice on the mistaken assumption that it would not need to assess specific personal jurisdiction on a claim-by-claim basis, the panel vacated and remanded for further proceedings.
In a separate memorandum disposition, the panel affirmed the district court’s denial of Cracker Barrel’s motion to compel arbitration of a plaintiff’s claims.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/07/01/24-1979.pdf
Bills Signed by Governor (6/30/25)
SB 129 by the Committee on Budget and Fiscal Review — Labor
SB 139 by the Committee on Budget and Fiscal Review — State Bargaining Unit 9 and State Bargaining Unit 12
SB 140 by the Committee on Budget and Fiscal Review — State Bargaining Unit 6