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Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section, unofficially since 2003 and officially since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.

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Mondragon v. Sunrun Inc. (CA2/7 B328425 4/23/24) PAGA | Arbitration


Sunrun Inc. required its employee, Angel Mondragon, to sign an arbitration agreement, which he did.  The agreement covered most disputes relating to Mondragon’s employment, but it excluded claims brought “as a representative of the state of California as a private attorney general under” the Private Attorney General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.).  After his employment ended, Mondragon filed a complaint asserting several causes of action under PAGA.  Sunrun filed a motion to compel arbitration of Mondragon’s claims, which the trial court denied.


Sunrun appeals from the order denying the motion to compel arbitration, arguing that, because the parties delegated arbitrability decisions to the arbitrator, the trial court erred in ruling on whether Mondragon’s claims were arbitrable.  Sunrun also argues that, if the parties did not delegate arbitrability decisions to the arbitrator, the trial court erred in denying the motion because the arbitration agreement excluded only PAGA claims based on violations involving other employees, not Mondragon’s “individual” PAGA claims.  We conclude that, by signing an arbitration agreement that (1) merely referred to the rules of the American Arbitration Association; (2) included a carve-out that arguably covered the dispute; and (3) included a severability clause stating a court may not enforce certain provisions, Mondragon, an unsophisticated party, did not delegate arbitrability decisions to the arbitrator.  We also conclude the language of the arbitration agreement did not require Mondragon to arbitrate his individual PAGA claims.  Therefore, we affirm.


LaMarr v. The Regents of the U. of Cal. (CA3 C097235, filed 4/5/24, pub. ord. 4/23/24) Civil Service Demotion | Skelly Hearing


After performance problems and friction with her supervisor, plaintiff June LaMarr temporarily transferred to a new department at the University of California Davis Medical Center, a unit of defendant the Regents of the University of California (Regents).  LaMarr was later given the option to move back into her prior position, but was told she would face discipline, including possible termination, if she did.  LaMarr ultimately accepted a permanent position in the new department for less pay and sued the Regents alleging it violated her due process rights by not providing her a hearing under Skelly v. State Personnel Bd. (1975) 15 Cal.3d 194 (Skelly) prior to her demotion.  After a court trial, the trial court found against LaMarr.  LaMarr now appeals contending the trial court’s finding lacked substantial evidence.  We affirm.


Starbucks Corp. v. McKinney (US 23-367 oral arg. transcript 4/23/24) NLRB Injunctions


Under the National Labor Relations Act, the National Labor Relations Board (NLRB) issues, prosecutes, and adjudicates complaints alleging that employers committed unfair labor practices. 29 U.S.C. § 160(b). Section 10(j) of the Act authorizes federal district courts, while the NLRB adjudication remains pending, to grant preliminary injunctive relief at the NLRB's request "as [the court] deems just and proper." Id. § 160(j).


The question presented, on which the courts of appeals are openly and squarely divided, is: Whether courts must evaluate the NLRB's requests for section 10(j) injunctions under the traditional, stringent four-factor test for preliminary injunctions or under some other more lenient standard.





Federal Trade Commission, Non-Compete Clause Rule (16 CFR Part 910, RIN 3084-AB74)


Pursuant to sections 5 and 6(g) of the Federal Trade Commission Act (“FTC Act”), the Federal Trade Commission (“Commission”) is issuing the Non-Compete Clause Rule (“the final rule”). The final rule provides that it is an unfair method of competition—and therefore a violation of section 5—for persons to, among other things, enter into non-compete clauses (“non- competes”) with workers on or after the final rule’s effective date. With respect to existing non-competes—i.e., non-competes entered into before the effective date—the final rule adopts a different approach for senior executives than for other workers. For senior executives, existing non-competes can remain in force, while existing non-competes with other workers are not enforceable after the effective date.

Ruelas v. County of Alameda (SC S277120A per curiam 4/22/24) Inmate Labor | Minimum Wage and Overtime


Inmates at the Santa Rita Jail in Alameda County work in the kitchen preparing meals for the county jail population and staff under an agreement between the county and a private contractor.  They are not paid for their labor.  A group of nonconvicted individuals who were performing this labor while detained at the jail sued the county and the private contractor in federal court for failing to pay minimum wage and overtime.  The United States Court of Appeals for the Ninth Circuit has asked us to decide whether nonconvicted incarcerated individuals working in a county jail for a private company have a claim for minimum wage and overtime under California law.  We conclude the answer is no.


Ventura County Employees' etc. v. Criminal Justice Attys. etc., 98 Cal.App.5th 1119 (2024), review granted, 2024 WL 1665726 (Apr. 17, 2024); S283978/B325277 Retirement Benefits


Petition for review after affirmance of judgment. For purposes of calculating retirement benefits for members of County Employees Retirement Law of 1937 (Gov. Code, § 31450 et seq.) retirement systems, does Government Code section 31461, subdivision (b)(2) exclude payments for accrued, but unused hours of annual leave that would exceed the maximum amount of leave that was earnable and payable in a calendar year? Review granted/brief due.



Decision Below

Mattioda v. Nelson, et al. (9th Cir. 22-15889 4/22/24) Disability Discrimination | Hostile Work Environment


The panel reversed the district court’s dismissal of Dr. Andrew Mattioda’s hostile-work-environment claim, affirmed the district court’s summary judgment in favor of his employer the National Aeronautics and Space Administration (“NASA”) on his disability-discrimination claim, and remanded for further proceedings.


Dr. Mattioda, a scientist with NASA, has physical disabilities related to his hips and spine that he alleged required him to purchase premium-class airlines tickets for flights over an hour long. He sued NASA under the Rehabilitation Act of 1973, alleging that he suffered a hostile work environment after informing his supervisors of his disabilities and requesting upgraded airline tickets for work travel, and alleging he was discriminated against due to his disability by being passed over for a promotion.


Addressing the hostile-work-environment claim, the panel held that a disability-based harassment claim is available under the Americans with Disabilities Act of 1990 and the Rehabilitation Act. Turning to the merits of Dr. Mattioda’s claim, the panel held that the district court correctly applied the Iqbal/Twombly standard in assessing his complaint. The district court erred, however, in concluding that Dr. Mattioda failed to allege a plausible causal nexus between the claimed harassment and his disabilities. The panel also rejected NASA’s argument that Dr. Mattioda’s hostile-work environment claim failed on the alternative ground that he did not allege sufficiently severe or pervasive harassment. The panel concluded that Dr. Mattioda alleged sufficiently severe or pervasive harassment to survive NASA’s motion to dismiss, and plausibly alleged a hostile-work environment claim based on his disability.


Addressing the disability-discrimination claim, the panel held that the district court correctly applied the McDonnell Douglas burden-shifting framework in assessing Dr.Mattioda’s claim. Even assuming that Dr.Mattioda established a prima facie case of disability discrimination, NASA proffered a legitimate nondiscriminatory reason for not selecting Dr. Mattioda for an available senior scientist position. Accordingly, the district court did not err in granting summary judgment to NASA on this claim.

Semprini et al. v. Wedbush Securities Inc. (CA4/3 G062622 4/18/24) Arbitration


This is an appeal from an order denying an employer’s motion to compel certain claims and parties to arbitration in a certified wage and hour class action.  Finding the employer waived its right to arbitrate those claims by unreasonably delaying its motion to compel, we affirm.


Joseph Semprini filed this lawsuit against his employer, Wedbush Securities, Inc. (Wedbush), in March 2015, alleging 11 causes of action unique to him (e.g., for wrongful termination and discrimination) and seven putative class claims for alleged wage and hour violations.  In April 2015, Semprini amended his complaint to add a representative cause of action under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.).  In May 2015, Semprini and Wedbush stipulated that Semprini’s 11 personal claims would be arbitrated, while the remaining eight causes of action would proceed in the trial court.  The class was certified in 2017, and the parties litigated Semprini’s class and PAGA claims in the trial court over the next several years, conducting extensive discovery, motion practice, and trial preparation. 


Two events occurred in 2022 that, according to Wedbush, afforded it a new right to compel certain claims to arbitration, notwithstanding its 2015 stipulation.  First, in June 2022, the United States Supreme Court issued its decision in Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 (Viking River), holding that, contrary to prior California Supreme Court authority, an employer may enforce an employee’s agreement to arbitrate individual PAGA claims.  Second, in the wake of Viking River, Wedbush asked its workforce to sign arbitration agreements, and two dozen class members, including the second named plaintiff, Bradley Swain, agreed to do so in September and October 2022.


In March 2023, just five months before trial, Wedbush filed a motion to (1) compel the named plaintiffs to arbitrate their individual PAGA claims under Viking River, and (2) compel to arbitration Swain and the 23 other class members who signed arbitration agreements in the fall of 2022.  The trial court denied Wedbush’s motion, finding it had waived its right to compel arbitration by entering into the 2015 stipulation.


Although we rely on a different analysis than that relied on by the trial court, we affirm.  As we explain below, even if Viking River or the fall 2022 arbitration agreements gave Wedbush a new right to move to compel certain claims to arbitration, Wedbush waited too long to make its motion, particularly in light of the looming trial date.  Viking River was decided in June 2022; the 24 class members signed arbitration agreements in September and October 2022; but Wedbush waited until March 2023 to file its motion to compel arbitration.  During that interim period Wedbush propounded discovery and filed other motions.  Wedbush did not attempt to enforce its alleged arbitration rights until nine months post-Viking River and five to six months after select class members signed the new arbitration agreements.  The record therefore supports the trial court’s finding that Wedbush waived its right to compel arbitration.


Balderas v. Fresh Start Harvesting, Inc. (CA2/6 B326759 4/18/24) PAGA Standing


Lizbeth Balderas appeals an order striking her complaint for civil penalties for violations of the California Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.) on behalf of herself and 500 other current and former employees of defendant Fresh Start Harvesting, Inc. (Fresh Start).  The trial court ruled Balderas lacked standing to bring a representative PAGA action on behalf of other employees because she did not allege “an individual claim“ in the action.  We conclude Balderas, as an alleged aggrieved employee who was subject to alleged Labor Code violations by Fresh Start, may bring a “non-individual” or representative PAGA action on behalf of herself and other Fresh Start employees, even though she did not file an individual cause of action seeking individual relief for herself in this action.  We reverse.


Lugo v. Pixior, LLC, et al. (CA2/8 B324368 4/18/24) Malicious Prosecution | Deleting Employer Data


Saide Lugo sued former employer Pixior, LLC and some of its employees for malicious prosecution.  Lugo claimed Pixior had falsely reported her to police [for deleting company data], which triggered a criminal prosecution against her that she defeated.  In response to the malicious prosecution lawsuit, Pixior defendants filed a special motion to strike, which the trial court erroneously denied.  As a matter of law, Pixior had a winning defense:  criminal prosecutors acted only after an independent investigation.  It was error to deny Pixior’s motion.

Kuigoua v. Dept. of Veteran Affairs (CA2/8 B323735 4/17/24) Exhaustion of Administrative Remedies


Arno Kuigoua complained about employment oppression to an anti-discrimination agency and to a court.  The trouble was he told two divergent stories:  one to the agency, but a different one in court.  By withholding from the agency the facts he would later allege in his judicial complaint, Kuigoua scotched the agency’s ability to learn about, and to conciliate, the dispute Kuigoua sought to litigate in the judicial forum.  The court rightly granted summary judgment against Kuigoua for failing to exhaust his administrative remedies.  Unspecified citations are to the Government Code.

Muldrow v. St. Louis (US 22–193 per curiam 4/17/24) Title VII | Job Transfer


Sergeant Jatonya Clayborn Muldrow maintains that her employer, the St. Louis Police Department, transferred her from one job to another because she is a woman. From 2008 through 2017, Muldrow worked as a plainclothes officer in the Department’s specialized Intelligence Division. In 2017, the new Intelligence Division commander asked to transfer Muldrow out of the unit so he could replace her with a male police officer. Against Muldrow’s wishes, the Department approved the request and reassigned Muldrow to a uniformed job elsewhere in the Department. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. After the transfer, Muldrow no longer worked with high-ranking officials on the departmental priorities lodged in the Intelligence Division, instead supervising the day-to-day activities of neighborhood patrol officers. She also lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts. 

Muldrow brought this Title VII suit to challenge the transfer. She alleged that the City, in ousting her from the Intelligence Division, had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. 42 U. S. C. §2000e–2(a)(1). The District Court granted the City summary judgment. The Eighth Circuit affirmed, holding that Muldrow had to—but could not—show that the transfer caused her a “materially significant disadvantage.” 30 F. 4th 680, 688. Muldrow’s lawsuit could not proceed, the court said, because the transfer “did not result in a diminution to her title, salary, or benefits” and had caused “only minor changes in working conditions.” 

Held: An employee challenging a job transfer under Title VII must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant. Pp. 5–11. 

(a)Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1). Both parties agree that Muldrow’s transfer implicated “terms” and “conditions” of Muldrow’s employment. The applicable statutory language thus prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex. 


That language requires Muldrow to show that her transfer brought about some “disadvantageous” change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 80. The words “discriminate against,” the Court has explained, refer to “differences in treatment that injure” employees. Bostock v. Clayton County, 590 U. S. 644, 681. In the typical transfer case, that worse treatment must be “with respect to” employment “terms [or] conditions.” §2000e–2(a)(1). The “terms [or] conditions” phrase is not used “in the narrow contractual sense”; it covers more than the “economic or tangible.” Oncale, 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57, 64. Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. 

What the transferee does not have to show is that the harm incurred was “significant” or otherwise exceeded some heightened bar. “Discriminate against” means treat worse, here based on sex. See, e.g., Bostock, 590 U. S., at 657. Neither that phrase nor any other establishes an elevated threshold of harm. To demand “significance” is to add words to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more than the law as written. That difference can make a real difference for complaining transferees. By asking whether the harm to the transferee is significant, appellate courts have disregarded varied kinds of disadvantage. Pp. 5–7. 


(b) The City’s three main arguments—based on statutory text, precedent, and policy—do not justify the use of a “significance” standard. 


The Court rejects the City’s textual claim, which invokes the ejusdem generis canon—the idea that a general phrase following an enumeration of things should be read to encompass only things of the same basic kind. Applying that canon to the text of Title VII’s antidiscrimination provision, the City claims that because refusing to hire because refusing to hire or discharging a person causes a significant disadvantage, the “otherwise to discriminate against” phrase can apply only to things causing an equal level of harm. But the statutory text itself provides a different shared trait: Each kind of prohibited discrimination occurs by way of an employment action—whether pertaining to hiring, or firing, or compensating, or (as here) altering terms or conditions through a transfer. That is a more than sufficient basis to unite the provision’s several parts and avoid ejusdem generis problems. 


Contrary to the City’s view, there is also no reason to import a significant-harm requirement from this Court’s decision in Burlington N. & S. F. R. Co. v. White, 548 U. S. 53. The Court there held that Title VII’s anti-retaliation provision—which prohibits an employer from taking action against an employee for bringing or aiding a Title VII charge—applies only when the retaliatory action is “materially adverse,” meaning that it causes “significant” harm. Id., at 68. White adopted that standard for reasons peculiar to the retaliation context. The test was meant to capture those employer actions serious enough to “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” Ibid. An action causing less serious harm will not deter Title VII enforcement and so falls outside the purposes of the ban on retaliation. But that reasoning does not apply to the anti-discrimination provision, which flatly “prevent[s] injury to individuals based on” protected status, id., at 63, without distinguishing between significant and less significant harms. 


Finally, there is reason to doubt the City’s prediction that employees will flood courts with litigation in the absence of a significant-injury requirement. Courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions. But even supposing the City’s worst predictions come true, that would be the result of the statute Congress drafted. This Court will not add words to the statute to achieve what the City thinks a desirable result. Pp. 8–10. 

(c) The courts below applied the wrong standard to Muldrow’s suit. Muldrow need show only some injury respecting her employment terms or conditions. Her allegations, if properly preserved and supported, meet that test with room to spare. The Court recognizes, however, that the decisions below may have rested in part on issues of forfeiture and proof. The Court leaves such matters for the courts below to address on remand under the proper Title VII standard. Pp. 10–11. 

30 F. 4th 680, vacated and remanded. 

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

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