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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Andrews v. Wagner (CA2/6 B332276 12/3/25) Privette Doctrine
Robert Andrews (“Andrews”), an employee of an independent home inspection company, was injured when he slipped and fell while performing his work duties. He and his wife, Paula Andrews (collectively “appellants”) sued the homeowner, Kathleen Wagner (“Wagner”), now deceased, asserting causes of action for negligence, premises liability, and a derivative claim for loss of consortium. The trial court granted summary judgment in favor of Wagner on the basis of the Privette doctrine, which holds that an employee of an independent contractor generally may not recover tort damages for work-related injuries from the contractor’s hirer. (Privette v. Superior Court (1993) 5 Cal.4th 689, 702 (Privette).)
Appellants contend the trial court’s order granting summary judgment was erroneous because (1) Wagner failed to meet her burden to establish that she was a “hirer” within the meaning of the Privette doctrine, and (2) there are triable issues of fact regarding the application of the “concealed hazard” exception found in Kinsman v. Unocal Corporation (2005) 37 Cal.4th 659 (Kinsman). We affirm.
https://www4.courts.ca.gov/opinions/documents/B332276.PDF
Jacobson v. Metropolitan Life Ins. Co. (CA2/1 B338483 12/3/25) Public Employee Deferred Retirement Products
The Education Code requires disclosure of certain information by vendors offering “tax-deferred retirement investment products as described in [s]ection 403(b) of the Internal Revenue Code of 1986” (403(b) products) to public education employees. (Ed. Code, § 25100, subd. (a).) The Education Code mandates this information, which is separate and distinct from any disclosures required by securities and insurance law or by self-regulatory organizations such as the Financial Industry Regulatory Authority (FINRA), be posted on a website maintained by the Teachers’ Retirement Board (board). The code further prohibits a vendor from charging any fee to a public education employee which the vendor is required to, but did not, disclose on the state-maintained website. The Education Code indisputably requires these website disclosures be made to prospective purchasers of an offered 403(b) product. The question here is whether the website disclosure requirements continue to apply to an optional add-on rider for a 403(b) product after that optional rider is no longer offered to prospective purchasers, but the rider is still in force for those who selected it when it was available.
Metropolitan Life Insurance Company (Met Life) offers 403(b) products to public education employees, including its Financial Freedom Select (FFS) variable annuity. In 2010, Carolyn Jacobson purchased an FFS variable annuity. Although the income stream from a variable annuity typically depends on the performance of underlying investment options, Jacobson purchased with her annuity a Guaranteed Minimum Income Benefit (GMIB) rider, which guarantees minimum levels of payment from her annuity regardless of the annuity’s investment performance. That optional guarantee came at a cost, and Jacobson paid Met Life an annual fee based on the value of her annuity for the protection afforded by the GMIB rider.
At the time Jacobson purchased her variable annuity in 2010, Met Life disclosed the annual fee for the GMIB rider option, and the information was published on the state-maintained website as required by the Education Code. Years later, in 2018, Met Life continued to offer the FFS variable annuity but stopped offering the optional GMIB rider to new customers; individuals such as Jacobson who previously purchased the GMIB rider continued to have its protection and continued to pay the associated fee. At some point after January 27, 2019, information about the GMIB rider fee was no longer included on the state-maintained website.
In June 2023, Jacobson sued Met Life under the unfair competition law (UCL; Bus. & Prof. Code, § 17200 et seq.), asserting Met Life was required to disclose the GMIB rider fee for posting on the state-maintained website even after it ceased offering the rider to new customers. Jacobson did not claim to have relied on the website nor to have been misled about the fee she was being charged; she instead claimed that Met Life had engaged in an unlawful business practice by charging the fee when it was not disclosed on the website, and that she had stated a viable claim for relief regardless of her lack of reliance on the website. The trial court sustained Met Life’s demurrer based on the lack of alleged reliance; the court later dismissed the action with prejudice when Jacobson declined to amend her complaint to allege reliance on what the website stated or did not state.
We affirm, but for a different reason. We conclude the Education Code did not require Met Life to continue to disclose the GMIB rider fee on the state-maintained website after Met Life stopped offering that option to prospective purchasers. Therefore, Met Life was not prohibited from charging the fee to Jacobson after that time. Accordingly, Jacobson’s complaint, which is premised on the theory Met Life charged her an illegal fee, was properly dismissed.
https://www4.courts.ca.gov/opinions/documents/B338483.PDF
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County of L.A. v. Niblett (CA2/1 B327744 filed 10/31/25, part. pub. 11/26/25) Workplace Violence Restraining Order | AI Misuse
This is an appeal from a three-year workplace violence restraining order (WVRO) issued pursuant to Code of Civil Procedure section 527.8 that protects nonparty Samuel S. from defendant and appellant Neill Francis Niblett. Prior to the issuance of the WVRO, both individuals were employed by plaintiff and respondent County of Los Angeles’s (the County’s) fire department; Samuel was an assistant chief and Niblett was a senior mechanic. During the WVRO proceedings, the County offered evidence showing Niblett had often raised his voice to Samuel to complain about work-related decisions, Niblett on one occasion shouted profanities at Samuel and got so close to Samuel’s face that Niblett was spitting on him while shouting, and, several days after that profanity-laden encounter, Niblett had a conversation with a secretary in which Niblett (a) expressed his frustration that one of his mechanics had been transferred without his knowledge and (b) alluded to an incident in which a firefighter fatally shot another firefighter. The trial court found clear and convincing evidence that Niblett’s reference to the prior shooting constituted a credible threat of violence warranting issuance of the WVRO.
On appeal, Niblett’s challenge to the evidentiary sufficiency of the order fails because the trial court could rationally have concluded it was highly probable that a reasonable person would construe Niblett’s statement mentioning the shooting as an implied threat to commit an act of violence against fire department management if it continued to make decisions with which he disagreed. Further, although Niblett did not expressly threaten to harm Samuel, he was a logical target of Niblett’s implied threat who may be named as a protected party pursuant to section 527.8. Our rejection of Niblett’s evidentiary challenge is fatal to his claim the WVRO violates his First Amendment rights. Niblett’s claim the firearm restriction in the restraining order violates his Second Amendment rights is also unpersuasive. Niblett has forfeited the remainder of his claims of error by either failing to raise them adequately or asserting them for the first time in his reply brief. For all these reasons, we affirm the WVRO.
Additionally, this case illustrates that misuse of artificial intelligence threatens the integrity of the appellate process. It appears that Niblett’s appellate counsel misused artificial intelligence in preparing his opening brief by misciting the holdings of numerous cases, even those from the principal cases on which he relies, and by citing at least one case that does not even exist. Further, Niblett’s counsel failed to correct those erroneous citations even after the County identified many of them in its appellate brief. Accordingly, in a separate ruling issued concurrently with this opinion, we order Niblett’s appellate counsel to show cause why he should not be sanctioned for misusing artificial intelligence.
https://www4.courts.ca.gov/opinions/documents/B327744.PDF
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Wonderful Nurseries v. ALRB (CA5 F088515 11/25/25) ALRB
In early 2024, the United Farmworkers of America (UFW) sought to be certified as the exclusive bargaining representative for the employees of Wonderful Nurseries, LLC (Wonderful), an agricultural company involved in the grape industry in the Central Valley. The UFW utilized a new statutory procedure contained in Labor Code section 1156.37 in order to seek certification by filing with the Agricultural Labor Relations Board (ALRB or Board) what is referred to as a “Majority Support Petition” (sometimes referred to by the parties as an MSP), demonstrating that a majority of Wonderful’s employees supported unionizing with the UFW as their bargaining representative.
Wonderful vigorously opposes this unionization effort. It filed objections in front of the ALRB as part of the statutory procedure under section 1156.37, making a plethora of claims of impropriety by the UFW in its unionization efforts. Wonderful claims to have submitted a large number of declarations to the ALRB disputing whether various workers were misinformed or misled, and contesting whether the workers actually support the UFW acting as their bargaining representative. The UFW, for its part, allegedly contested the veracity of those declarations, suggesting they were coerced from workers by management.
We use the words “claims” and “allegedly” here because the administrative proceeding in which such contested issues are being raised with the ALRB is not yet before us for review, and, thus, we know neither what the factual findings will be nor what information will be found in the fully developed record. Instead of waiting for the statutorily prescribed time for seeking judicial review—or even waiting for the evidentiary hearings it sought in front of the ALRB to conclude—Wonderful filed a petition in the superior court contesting the validity of the certification decision. Wonderful asked the superior court to enjoin the certification proceedings, prevent the ALRB from continuing with any administrative proceedings regarding certification of the UFW as the representative for Wonderful’s workers, and declare the underlying statute—section 1156.37—unconstitutional.
Wonderful filed this petition notwithstanding approximately 50 years of unbroken precedent finding an employer may not directly challenge a union certification decision in court except in extraordinarily and exceedingly rare circumstances, which Wonderful does not meaningfully attempt to show are present here. Rather, if the employer believes a union has been inappropriately certified as a bargaining representative, its remedy is to refuse to bargain with it. In the normal course of business, claims are then brought against the employer for unfair labor practices. In the context of an unfair labor practice proceeding, the employer can contest the validity of the certification. This procedure has been upheld not only by the courts of this state interpreting California’s Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act of 1975 (§ 1140 et seq.; ALRA or the Act), but by federal courts interpreting the National Labor Relations Act (29 U.S.C. § 151 et seq.; NLRA) on which the ALRA is modeled. This delayed review procedure was created intentionally to avoid labor strikes caused when employers sought to delay union recognition.
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Thus, the question we face in this opinion is a preliminary one: whether the trial court had jurisdiction to even consider this challenge at this time, despite statutory mandates funneling judicial review of certification decisions to a later point in time, and even then, to the Court of Appeal in the first instance. Despite apparently recognizing both the statutory mandate and the precedent upholding it, the trial court concluded it did have jurisdiction, and proceeded to issue a preliminary injunction staying the ALRB’s ongoing administrative hearings. We previously issued writs of supersedeas staying enforcement of that preliminary injunction. We now conclude, in line with both our Legislature’s command and a long judicial history supporting it, that the trial court lacked jurisdiction to consider this case. We will therefore remand these matters to the trial court with directions to dismiss Wonderful’s case.
https://www4.courts.ca.gov/opinions/documents/F088515.PDF
Gessele v. Jack in the Box Inc. (9th Cir. 23-2522, 23-2527 11/25/25) Oregon Wage and Hour
The panel reversed in part and affirmed in part the district court’s judgment in a wage-and-hour case brought by plaintiffs against their former employer, Jack in the Box (JITB), on behalf of themselves and a class of other former employees.
Plaintiffs challenged three JITB policies: JITB overdeducted its employees’ wages for the Oregon Workers’ Benefit Fund (WBF), JITB did not pay workers for interrupted meal periods more than 20 minutes long, and JITB deducted employees’ pay for non-slip shoes.
Plaintiffs prevailed on the WBF claims, and JITB defeated the unpaid break and shoe claims. JITB appealed, and plaintiffs cross-appealed. The panel reversed the district court’s judgment on the WBF and shoe claims, and remanded, and affirmed the district court’s judgment on the unpaid break claims.
Addressing JITB’s appeal concerning the WBF overdeductions, the panel held that the district court erred in finding, at summary judgment, that JITB’s overdeductions were willful such that JITB owed penalty wages, and remanded for a trial on willfulness. To help the district court and the parties retry the case, the panel also provided guidance on a penalty wage theory the parties call “Late Final Pay 1”—a claim for penalty wages for WBF overdeductions but not minimum wage or overtime violations—and the constitutional limits on penalty wages.
Next, the panel held that the district court did not abuse its discretion in declining to exclude the class members whose mailed notices were undeliverable, nor did the district court err in refusing to reduce the prejudgment interest for plaintiffs’ alleged delays. However, on remand, the district court will have to recalculate the prejudgment interest in light of the holding on willfulness.
Addressing plaintiffs’ cross-appeal, the panel held that it had jurisdiction. Because the district court granted JITB’s Fed. R. Civ. P. 50(b) motion, the 30-day deadline of Fed. R. App. P. 4(a)(1)(A) ran from the amended judgment, and the cross-appeal was timely.
The panel rejected plaintiffs’ challenges to how the district court’s rulings on their unpaid break claims. First, the district court did not abuse its discretion in refusing to certify the unpaid break class. Second, the district court did not err in granting JITB’s renewed motion for judgment as a matter of law on the named plaintiffs’ individual claims because plaintiffs waived the theory that they could prevail individually by proving JITB breached its On-Duty Meal Policy Agreements with plaintiffs.
The panel reversed the district court’s judgment on the shoe claims. The panel held that the district court erred in granting partial summary judgment to JITB on its affirmative defense that the shoe deductions were for its employees’ benefit, and reversed and remanded so a jury can decide whether the shoe requirement was for the employees’ benefit. The panel also remanded so the district court can reconsider whether to certify the shoe class.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/25/23-2522.pdf
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Roe v. Smith (CA2/2 B344378 11/21/25) Pseudonyms for Parties (rule in DFEH v. Superior Court (2022) 82 Cal.App.5th 105 applied)
Movant First Amendment Coalition (the Coalition) appeals the trial court’s order granting plaintiffs’ motion to proceed under pseudonyms. We conclude the trial court erred in its balancing of the public’s interest in court access. Accordingly, we reverse the order as to plaintiffs.
https://www4.courts.ca.gov/opinions/documents/B344378.PDF
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Lorenzo v. San Francisco Zen Center (CA1/5 A171659 11/21/25) Ministerial Exception | Minimum Wage and Overtime
In Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC (2012) 565 U.S. 171, 188 (Hosanna-Tabor), the United States Supreme Court recognized, for the first time, a ministerial exception under the Religion Clauses of the First Amendment. Under that exception, courts must “stay out of employment disputes involving those holding certain important positions with churches and other religious institutions” (Our Lady of Guadalupe Sch. v. Morrissey-Berru (2020) 591 U.S. 732, 746 (Our Lady)), if those disputes will, by their very nature, require “the court to resolve a religious controversy” (Sumner v. Simpson University (2018) 27 Cal.App.5th 577, 590 (Sumner)). Applying the exception, the high court has barred “a minister’s employment discrimination suit based on the church’s decision to fire her.” (Id. at p. 580.) We now consider whether the ministerial exception bars claims under California’s minimum wage and overtime laws even though there is no evidence that those claims would interfere “with an internal church decision that affects the faith and mission of the church itself.” (Hosanna-Tabor, at p. 190.) We conclude it does not.
In this case, plaintiff Annette Lorenzo appeals a judgment in favor of defendants and respondents San Francisco Zen Center (Center), Linda Galijan, and Mike Smith (collectively, defendants) following the trial court’s order granting summary judgment against Lorenzo. The court held that the ministerial exception barred Lorenzo’s wage-and-hour claims even though defendants presented no evidence that her claims raised an ecclesiastical concern. But without such evidence, the Religion Clauses cannot and do not bar Lorenzo’s wage claims. We therefore reverse.
We also find that the trial court erred in denying Lorenzo’s motion to dismiss the appeals of Galijan and Smith because they did not post an undertaking as required by Labor Code section 98.2, subdivision (b). The Labor Commissioner found Galijan and Smith liable under section 558.1—which renders them “liable as the employer for” the wage-and-hour violations alleged by Lorenzo. (Italics added.) Because section 98.2, subdivision (b), requires “an employer” to post an undertaking in order to perfect that employer’s appeal from a Labor Commissioner’s order, both Galijan and Smith could only appeal the order against them if they each posted an undertaking. But the undertaking posted by the Center did not, by its terms, include Galijan and Smith. The court therefore lacked jurisdiction to hear Galijan’s and Smith’s appeals. For this independent reason, we reverse the judgment in favor of Galijan and Smith.
https://www4.courts.ca.gov/opinions/documents/A171659.PDF
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Dobarro v. Kim (CA1/5 A173001 11/19/25) Labor Commissioner Appeal
The Labor Commissioner ruled against Edward Kim and his business, Queens SF, LLC (collectively “Kim”), in a labor claim filed by his former employee, Nicole Dobarro. Kim sought to appeal to the superior court, but he filed his appeal one day late. (See Lab. Code, § 98.2, subds. (a)-(b), (d).) He now challenges the superior court’s determination that his appeal was untimely, contending that the deadline should be tolled. Because his arguments lack merit, we affirm.
https://www4.courts.ca.gov/opinions/documents/A173001.PDF
Camacho v. NMI Settlement Fund (9th Cir. 23-16074 11/20/25) Retirement Fund
The panel affirmed the district court’s order holding that Plaintiff Rosa A. Camacho, a retired Class II member of the Northern Mariana Islands Retirement Fund, was not entitled to cost-of-living allowances (“COLAs”) as part of her retirement benefits. The panel previously certified to the Supreme Court of the Commonwealth of the Northern Mariana Islands the
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/20/23-16074.pdf
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Mora v. C.E. Enterprises (CA2/6 B337830, filed 10/21/25, pub. 11/18/25) PAGA | Wage and Hour
Appellants Gustavo Mora and Mohammad Hanif were formerly employed as service technicians by respondent C.E. Enterprises, Inc., a Simi Valley auto dealership doing business as First Honda, First Auto Group, and First Automotive Group (First Honda). Appellants sued First Honda for alleged violations of the Labor Code and the Unfair Competition Law (Bus. & Prof. Code, § 17200), and also asserted a claim on behalf of themselves and other First Honda employees under the Private Attorney General Act (PAGA) (§ 2698 et seq.). The trial court entered judgment in First Honda’s favor on all claims following a bench trial.
Appellants contend the court erred in finding they failed to prove that First Honda’s compensation plan for service technicians violates the “no borrowing rule” as provided in Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36 (Gonzalez), or otherwise fails to comply with section 226.2. Appellants also contend they presented substantial and undisputed evidence that they were not fully compensated for all hours worked, and that the court erred in entering judgment in First Honda’s favor on their PAGA claim. We affirm.
https://www4.courts.ca.gov/opinions/documents/B337830.PDF
Hollis v. R&R Restaurants, Inc. (9th Cir. 24-2464 11/18/15) FLSA | Misclassification and Retaliation
The panel reversed the district court’s summary judgment in favor of defendants on a retaliation claim under the Fair Labor Standards Act and remanded for further proceedings.
Zoe Hollis, a dancer at a Portland strip club called Sassy’s, sued the club’s owners and managers under the FLSA for misclassifying its dancers as independent contractors and violating corresponding wage and hours provisions. After Hollis filed the complaint, Frank Faillace, a partner and manager of both Sassy’s and another club called Dante’s, canceled an agreement for Hollis to perform at a weekly variety show at Dante’s. Hollis then amended the complaint to allege that Faillace’s decision to cancel the performance at Dante’s constituted retaliation in violation of the FLSA. The district court granted summary judgment on the ground that to have a private right of action for retaliation, Hollis must have been employed at Dante’s when Faillace canceled the scheduled performance.
The panel held that, while the FLSA requires an underlying employment relationship, it covers retaliation committed by the employer or “any person acting directly or indirectly in the interest of an employer in relation to an employee.” Thus, the alleged retaliator need not be the actual employer, and the plaintiff need not have been employed by the actual employer when the retaliation occurred. The panel held that, in the context of retaliation, the phrase “indirectly in the interest of an employer” does not require an agency relationship with the actual employer or the conferral of any direct benefit to the employer.
The employee-employer relationship at issue was the one between Hollis and Sassy’s. The panel left it to the district court to determine on remand whether Hollis’s work at Sassy’s satisfied the “economic realities” test for establishing employee status. The panel held that in ascertaining whether Hollis was an employee of Sassy’s, it was not relevant that any FLSA wage and hour claims based on the alleged misclassification were time-barred. The panel also left it to the district court or trier of fact to determine on remand whether Faillace’s acts in canceling the scheduled performance and barring Hollis from future work at Dante’s constituted retaliation.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/18/24-2464.pdf
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Anton's Services v. Hagen (CA4/1 D084833, filed 10/23/25, pub. 11/18/25) DLSE Writ | Public Works
Plaintiff and appellant Anton’s Services Inc. allegedly violated state labor statutes and regulations applicable to public works by misclassifying and underpaying workers and failing to comply with apprenticeship requirements. Real party in interest and respondent Division of Labor Standards Enforcement (DLSE) cited Anton’s for those violations and assessed penalties. Anton’s administrative appeal was unsuccessful, and it thereafter filed a petition for writ of administrative mandamus under Code of Civil Procedure section 1094.5, which the superior court denied.
On appeal, Anton’s contends the superior court erroneously upheld administrative findings that: (1) Anton’s misclassified workers on two public works projects; (2) Anton’s is liable for penalties for failing to pay these workers the prevailing wage; (3) Anton’s is liable for liquidated damages; (4) Anton’s failed to comply with apprenticeship requirements; and (5) Anton’s is liable for penalties for failing to comply with apprenticeship requirements. Finding no error, we affirm.
https://www4.courts.ca.gov/opinions/documents/D084833.PDF
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Pritchard v. Blue Cross Blue shield of Illinois (9th Cir. 23-4331 11/17/25) Affordable Care Act | Sex Discrimination | Employer’s Third-Party Health Plan
The panel vacated the district court’s summary judgment against Blue Cross Blue Shield of Illinois (BCBSIL), and remanded, in a class action alleging that BCBSIL, a third-party administrator for certain employer-sponsored health insurance plans, violated Section 1557 of the Affordable Care Act by refusing to cover treatment for gender dysphoria, citing plan exclusions put in place at the insistence of the employer sponsors.
The panel joined the district court in rejecting BCBSIL’s arguments that it was not liable pursuant to Section 1557, which bars sex-based discrimination, because (1) its plans were not funded by the federal government, (2) it was acting at the direction of the employers, and (3) it was shielded by the Religious Freedom Restoration Act (RFRA). First, employing an entity-level analysis, rather than a plan-level analysis, BCBSIL’s provision of health insurance was a health program or activity, part of which was receiving Federal financial assistance. BCBSIL waived its argument that it had insufficient notice, as required by the Spending Clause, that it would be subject to Section 1557 for its third-party administrator activities. Second, a third-party administrator such as BCBSIL can be liable for violating Section 1557, even when implementing plan terms drafted by a plan sponsor. The Employee Retirement Income Security Act does not require third-party administrators to implement unlawful plan terms. BCBSIL forfeited its argument regarding intent, and even absent forfeiture, its argument failed because intentional discrimination based on sex violates Section 1557, even if intended only to comply with the terms selected by the plan sponsor. Third, RFRA does not apply because BCBSIL’s religious exercise was not burdened. And even if RFRA provides a defense to those whose religious exercise is not burdened, it does not provide a defense against claims brought by a private party.
The district court also rejected BCBSIL’s argument that its exclusions did not discriminate based on sex. The panel concluded, however, that the district court’s analysis was undercut by intervening Supreme Court authority in United States v. Skrmetti, 145 S. Ct. 1816 (2025). The panel therefore vacated the district court’s summary judgment against BCBSIL and remanded for the district court to consider the implications of Skrmetti. The panel explained that, although the district court’s reasoning failed in light of Skrmetti, this case is potentially different from Skrmetti in two respects. First, some Plaintiffs allegedly had diagnoses other than gender dysphoria that entitled them to hormones or other treatment, but BCBSIL still would not treat them. Second, Skrmetti left open the argument that BCBSIL’s justifications for its actions were a pretext for invidious discrimination. The panel expressed no view about the appropriate outcome on remand.
Concurring in the judgment, Judge Rawlinson wrote that she agreed in large part with the majority opinion but wrote separately because it was improvident to opine on issues that the panel was remanding to the district court in light of intervening Supreme Court precedent—specifically, how the district court could potentially distinguish Skrmetti.
https://cdn.ca9.uscourts.gov/datastore/opinions/2025/11/17/23-4331.pdf