© 2016 by Phyllis W. Cheng. William Morris' 1875 Acanthus wallpaper in public domain.  Created with Wix.com.



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


(See prior archived alerts by clicking on "Blog" under menu. For alerts older than one year, please request under "Contact" tab.)

Schmidt v. Super. Ct. (CA2/8 B291385M mod. 2/14/20) Sexual Harassment


Two court employees alleged a security guard named David Jacques sexually harassed them with his metal detecting wand during the courthouse entry screening process.  All security screening was in public and on video.  None of the video supported the allegations.  After a lengthy bench trial, the trial court ruled the plaintiffs had not proved their allegations.  The employees appeal, primarily targeting the trial court’s decision not to credit testimony favorable to them.  We affirm because substantial evidence supports the trial court’s fact finding.  The employees also unsuccessfully argue the judge was biased against them. 




Frlekin v. Apple Inc. (SC S243805 2/13/20) Waiting Time = Hours Worked


Industrial Welfare Commission wage order No. 7-2001 (Wage Order 7) requires employers to pay their employees a minimum wage for all “hours worked.”  (Cal. Code Regs., tit. 8, § 11070, subd. 4(B).)  “Hours worked” is defined as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”  (Id., § 11070, subd. 2(G).) 


We granted the request of the United States Court of Appeals for the Ninth Circuit to decide the following question of California law, as reformulated by this court (see Cal. Rules of Court, rule 8.548(f)(5)):  Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of Wage Order 7?  For the reasons that follow, we conclude the answer to the certified question is, yes.




IUOE Local 501 v. NLRB (9th Cir. 18-72079, 18-72121 2/7/20) NLRA/Standing


The panel denied Station GVR Acquisition, LLC, and International Union of Operating Engineers Local 501, AFLCIO’s petitions for review, and granted the National Labor Relations Board’s cross-application for enforcement of the Board’s order holding that slot technicians were not “guards” under section 9(b)(3) of the National Labor Relations Act (the “Act”).


Station GVR owned and operated a hotel and casino in Henderson, Nevada, and it employed slot technicians whose primary responsibilities included installing, repairing, and maintaining gaming machines. The Union filed a petition with the Board to represent GVR’s slot technicians. The Board certified Local 501 as the slot technicians’ bargaining representative, concluding that the slot technicians were not guards. When GVR refused to recognize and bargain with the Union, the Board found that GVR engaged in unfair labor practices within the meaning of the Act and ordered various remedies.


The Act prohibits a union from representing a guard unit if it also represents non-guard employees. Because it was undisputed that the Union represented non-guard employees at the casino, the panel’s inquiry focused on whether a slot technician was employed as a guard.


The panel agreed with the Board’s determination that the casino’s slot technicians were not guards under the statute. The panel held that the slot technicians’ duties differed in fundamental respects from those of the surveillance technicians in Bellagio, LLC v. NLRB, 863 F.3d 839 (D.C. Cir. 2017). The panel rejected GVR’s argument that the slot technicians were guards because they enforced GVR’s rules and policies against GVR’s guests and other employees.


The Union sought review of the Board’s decision not to impose an affirmative remedy ordering GVR to provide certain information that it had previously requested. The panel held that the Union did not have standing to bring this petition because the Board granted it all of the relief that it had specifically sought in the charge and complaint, and therefore, the Union was not a “person aggrieved” within the meaning of 29 U.S.C. § 160(f).




Grande v. Eisenhower Medical Center (CA4/2 E068730 2/6/20) Wage and Hour Class Action/Res Judicata/Released Party


FlexCare, LLC (FlexCare), a temporary staffing agency, assigned Lynn Grande to work as a nurse at Eisenhower Medical Center (Eisenhower). According to Grande, during her employment at Eisenhower, FlexCare and Eisenhower failed to ensure she received her required meal and rest breaks, wages for certain periods she worked, and overtime wages.

Grande was a named plaintiff in a class action lawsuit against FlexCare brought on behalf of FlexCare employees assigned to hospitals throughout California. Her own claims were based solely on her work on assignment at Eisenhower. FlexCare settled with the class, including Grande, and Grande received $162.13 for her injuries, plus a class representative incentive bonus of $20,000. Grande executed a release of claims, and the trial court entered a judgment incorporating the settlement agreement.


About a year later, Grande brought a second class action alleging the same labor law violations, this time against Eisenhower, who was not a party to the previous lawsuit. FlexCare intervened in the action asserting Grande could not bring the separate lawsuit against Eisenhower because she had settled her claims against them in the prior class action. The trial court held a trial limited to questions as to the propriety of the lawsuit, and ruled Eisenhower was not a released party under the settlement agreement and could not avail itself of the doctrine of res judicata because the hospital was neither a party to the prior litigation nor in privity with FlexCare.

Eisenhower filed a petition for a writ of mandate and FlexCare appealed the trial court’s interlocutory order. We affirm the trial court and deny the petition because Eisenhower and FlexCare were not in privity, preventing Eisenhower from blocking Grande’s claims under the doctrine of res judicata, and Eisenhower was not a released party under the settlement agreement.



Alaniz v. Sun Pacific Shippers, L.P. (CA2/6 B290013 2/5/20) Negligence/Liability of Subcontractor Hiring Independent Contractor


The Privette/Hooker doctrine limits the circumstances in which the hirer of an independent contractor can be liable for injuries to the contractor’s employees.  (Privette v. Superior Court (1993) 5 Cal.4th 689; Hooker v. Department of Transportation (2002) 27 Cal.4th 198 (Hooker).)  In a negligence action, the hirer of an independent contractor may be liable to the contractor’s employee only if “the hirer retained control over safety conditions at [the] worksite” and that “exercise of retained control affirmatively contributed to the employee’s injuries.”  (Hooker, at p. 202, original italics.)  In a premises liability action, the hirer may be liable for injuries to the employee only if:  “(1) it knows or reasonably should know of a concealed, preexisting hazardous condition on its premises; (2) the contractor does not know and could not reasonably ascertain the condition; and (3) the [hirer] fails to warn the contractor.”  (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 675 (Kinsman), italics added.)  We conclude that the trial court here prejudicially erred when it omitted these limitations from its instructions on negligence and premises liability.


Sun Pacific Shippers, L.P. (Sun Pacific), appeals from the judgment after a jury awarded damages against it for injuries sustained by Jesus Alaniz, an employee of one of its independent contractors.  Sun Pacific contends:  (1) the trial court erred when it did not instruct the jury on the Privette/Hooker doctrine, (2) the court erred when it did not instruct on mitigation of damages, (3) the court improperly denied its motion for judgment notwithstanding the verdict (JNOV), and (4) substantial evidence does not support the award of future medical expenses.  We reverse the judgment, remand for a new trial on the negligence cause of action, and direct judgment for Sun Pacific on the premises liability cause of action.




Rojas V. FAA (9th Cir. 2019) 941 F.3d 392 (9th Cir. 17-155036 en banc rehrg granted 1/30/20) Traffic Controller Hiring/FOIA


Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel disposition in this case shall not be cited as precedent by or to any court of the Ninth Circuit.


Order granting en banc rehearing

Three-judge panel decision


Karasek v. Regents of the Univ. of California (9th Cir. 18-15841 1/30/20) Title IX


The panel affirmed in part and vacated in part the district court’s judgment in favor of defendant Regents of the University of California on claims brought under Title IX of the Education Amendments of 1972 by three plaintiffs who were sexually assaulted while undergraduates at the University of California, Berkeley.


Plaintiffs alleged that UC violated Title IX by failing to adequately respond to their individual assaults and by maintaining a general policy of deliberate indifference to reports of sexual misconduct.


The panel affirmed the district court’s dismissal of two plaintiffs’ individual claims and grant of summary judgment on a third plaintiff’s individual claim. To state a Title IX claim arising from student-on-student or faculty-on-student sexual harassment or assault, a plaintiff suing a school must allege that (1) the school exercised substantial control over the harasser and the context in which the harassment occurred; (2) the harassment was so severe that it deprived the plaintiff of educational opportunities; (3) a school official with authority to address the alleged discrimination had actual knowledge of it; (4) the school acted with deliberate indifference to the harassment, such that the school’s response was clearly unreasonable in light of the known circumstances; and (5) the school’s deliberate indifference subjected the student to harassment. The panel affirmed the district court’s holding that two plaintiffs failed adequately to allege deliberate indifference in UC’s investigation delays, policy violations, failure to take steps to prevent continued harassment, inequitable response, or failure to permit a plaintiff to participate in an investigation. The panel affirmed the district court’s holding that the third plaintiff failed to establish a triable issue as to whether UC acted with deliberate indifference by failing to investigate her complaint, failing to take steps to prevent the harasser from harassing her again, or committing policy violations.


The panel vacated the district court’s dismissal of the pre-assault claim regarding an alleged policy of deliberate indifference to reports of sexual misconduct that created a sexually hostile environment for plaintiffs and heightened the risk that they would be sexually assaulted. The panel held that such a claim is a cognizable theory of Title IX liability. Finding persuasive a decision of the Tenth Circuit, the panel held that a pre-assault claim survives a motion to dismiss if the plaintiff plausibly alleges that (1) a school maintained a policy of deliberate indifference to reports of sexual misconduct, (2) which created a heightened risk of sexual harassment (3) in a context subject to the school’s control, and (4) the plaintiff was harassed as a result. The panel remanded the case for further proceedings.




Brome v. Cal. Highway Patrol (CA1/5 A154612 1/28/20)  Sexual Orientation Discrimination and Harassment/Equitable Tolling and Continuing Violation


Jay Brome sued the California Highway Patrol (the Patrol) asserting that, during his career as a law enforcement officer, he suffered harassment and discrimination because of his sexual orientation in violation of the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.).   The trial court granted summary judgment to the Patrol, holding that Brome’s claims were filed after the statute of limitations expired and a reasonable jury could not have concluded they were timely based on an exception to the deadline.  The court also rejected Brome’s claim that he was constructively discharged.  Brome now appeals the grant of summary judgment.  We hold that the record does not preclude, as a matter of law, a conclusion that his claims were timely and that he was constructively discharged.  Accordingly, we reverse.




Hance v. Super Store Industries (CA5 F075852 1/23/20) Wage & Hour Class Action/Division of Attorneys’ Fees


The attorneys who represented the plaintiff class in a class action moved the trial court for approval of a settlement of the action; they also moved for an award of attorney fees and a division of the award among co-counsel.  The division of fees between two of the attorneys was disputed, one seeking compensation in accordance with an alleged written agreement for the division of the fees and the other contending the purported agreement was unenforceable.  The trial court made an award of attorney fees and divided the fees in accordance with the alleged fee division agreement.  Appellant challenges the enforceability of that agreement and the division of the attorney fee award between himself and respondent.  We reverse and remand for a redetermination of the division of the attorney fee award between appellant and respondent.



Ferra v. Loews Hollywood Hotel (2019) 40 Cal.App.5th 1239 (SC S259172/B283218 review granted 1/22/20) Wage and Hour/Regular Rate of Pay


Petition for review after affirmance of summary judgment.  Did the Legislature intend the term "regular rate of compensation" in Labor Code section 226.7, which requires employers to pay a wage premium if they fail to provide a legally compliant meal period or rest break, to have the same meaning and require the same calculations as the term "regular rate of pay" under Labor Code section 510(a), which requires employers to pay a wage premium for each overtime hour? Votes: Cantil-Sakauye, C.J., Chin, Corrigan, Liu, Cuéllar, Kruger and Groban, JJ.  Review granted/brief due.



Court of Appeal Decision