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


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


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

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


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

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


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

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


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

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


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


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

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


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


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


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


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


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


21 F. 4th 401, affirmed.


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

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


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


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

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


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

Bill Signed by Governor (5/15/23)


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

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

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


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


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


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

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


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


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


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

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


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


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


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


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


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


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


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


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

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




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


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


This modification does not change the judgment.

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


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

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


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

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


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

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