Bimonthly column prepared for the California Lawyers Association (formerly State Bar of California) California Labor & Employment Law Review since 2003.
Link to Latest Column
(Updated May 1, 2023)
Arbitration
Quach v. California Commerce Club, Inc., 78 Cal. App. 5th 470 (2022), review granted, 297 Cal. Rptr. 3d 592 (Mem) (Aug. 24, 2022); S275121/B310458
Petition for review after reversal of order denying petition to compel arbitration. Does California’s test for determining whether a party has waived its right to compel arbitration by engaging in litigation remain valid after the United States Supreme Court decision in Morgan v. Sundance, Inc., ___ U.S. ___ [142 S.Ct. 1708] (2022)? Fully briefed.
Ramirez v. Charter Communications, Inc., 75 Cal. App. 5th 365 (2021), review granted, 2022 WL 2037698 (Mem) (Jun. 1, 2022); S273802/B309408
Petition for review after affirmance of order denying petition to compel arbitration. Did the Court of Appeal err in holding that a provision of an arbitration agreement allowing for recovery of interim attorney’s fees after a successful motion to compel arbitration, was so substantively unconscionable that it rendered the arbitration agreement unenforceable? Fully briefed.
Zhang v. Superior Court, 85 Cal. App. 5th 167 (2022), review granted, 304 Cal. Rptr. 3d 549 (Mem) (Feb. 15, 2023); S277736/B314386
Petition for review after denial of petition for writ of mandate. (1) If an employer files a motion to compel arbitration in a non-California forum pursuant to a contractual forum-selection clause, and an employee raises as a defense Cal. Lab. Code § 925, which prohibits an employer from requiring a California employee to agree to a provision requiring the employee to adjudicate outside of California a claim arising in California, is the court in the non-California forum one of “competent jurisdiction” ( Cal. Code Civ. Proc. § 1281.4) such that the motion to compel requires a mandatory stay of the California proceedings? (2) Does the presence of a delegation clause in an employment contract delegating issues of arbitrability to an arbitrator prohibit a California court from enforcing Cal. Lab. Code § 925 in opposition to the employer’s stay motion? Review granted/brief due.
COVID-19
Kuciemba v. Victory Woodworks, 31 F.4th 1268 (9th Cir. 2022); review granted (Jun. 22, 2022); S274191/9th Cir. No. 21-15963
Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. 1. If an employee contracts COVID-19 at his workplace and brings the virus home to his spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer? 2. Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19? Fully briefed..
Discrimination | Harassment | Retaliation
Bailey v. San Francisco District Attorney’s Office, non-published opinion, 2020 WL 5542657 (2020), review granted (Dec. 30, 2020) S265223/A153520
Petition for review after affirmance of summary judgment. Did the Court of Appeal properly affirm summary judgment in favor of defendants on plaintiff’s claims of hostile work environment based on race, retaliation, and failure to prevent discrimination, harassment and retaliation? Fully briefed.
Raines v. U.S. Healthworks Medical Group, 28 F.4th 968 (mem) (9th Cir. 2022), review granted (Apr. 27 2022); S273630/ 9th Cir. 21-55229
Request under California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. The question presented is: Does California’s Fair Employment and Housing Act, which defines “employer” to include “any person acting as an agent of an employer” (Cal. Gov’t Code § 12926(d)), permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination? Fully briefed.
Wage and Hour
Adolph v. Uber Technologies, Inc., nonpublished opinion, 2022 WL 1073583 (2022), review granted (Jul. 20, 2022); S274671/G059860, G060198
Petition after affirmance of order denying a petition to compel arbitration. Whether an aggrieved employee who has been compelled to arbitrate claims under the Private Attorneys General Act (PAGA) that are “premised on Labor Code violations actually sustained by” the aggrieved employee (Viking River Cruises, Inc. v. Moriana 596 U.S. __, __ [142 S.Ct. 1906, 1916] (2022) (Viking River Cruises); see Cal. Lab. Code, §§ 2698, 2699, subd. (a)) maintains statutory standing to pursue “PAGA claims arising out of events involving other employees” (Viking River Cruises, at p. __ [142 S.Ct. at p. 1916]) in court or in any other forum the parties agree is suitable. Fully briefed.
Camp v. Home Depot U.S.A., Inc., 84 Cal. App. 5th 638 (2022), review granted (Feb. 1, 2023); S277518/H049033
Petition after reversal of judgment. Under California law, are employers permitted to use neutral time-rounding practices to calculate employees’ work time for payroll purposes? Review granted, brief due.
Estrada v. Royalty Carpet Mills, Inc., 76 Cal.App.5th 685 (2022), review granted 2022 WL 2251866 (Mem) (Jun. 22, 2022); S274340/G058397
Petition for review after affirmance in part and reversal in part of judgment. Do trial courts have inherent authority to ensure that claims under the Private Attorneys General Act (Lab. Code, § 2698 et seq.) will be manageable at trial, and to strike or narrow such claims if they cannot be managed? Fully briefed.
People ex rel. Garcia-Brower v. Kolla’s Inc., nonpublished opinion, nonpublished opinion, 2021 WL 1851487 (2021), review granted (Sept. 21, 2021); S269456/G057831
Petition after affirmance in part and reversal of judgment. Does Cal. Labor Code § 1102.5(b), which protects an employee from retaliation for disclosing unlawful activity, apply when the information is already known to that person or agency? Submitted/opinion due.
Huerta v. CSI Electrical Contractors, Inc., 39 F.4th 1176 (9th Cir. 2022), cert. granted (Aug. 31, 2022); S275431/9th Circ. No. 21-16201
Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. (1) Is time spent on an employer’s premises in a personal vehicle and waiting to scan an identification badge, have security guards peer into the vehicle, and then exit a Security Gate compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 16? (2) Is time spent on the employer’s premises in a personal vehicle, driving between the Security Gate and the employee parking lots, while subject to certain rules from the employer, compensable as ‘hours worked’ or as “employer-mandated travel” within the meaning of California Industrial Welfare Commission Wage Order No. 16? (3) Is time spent on the employer’s premises, when workers are prohibited from leaving but not required to engage in employer-mandated activities, compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 16, or under California Labor Code Section 1194, when that time was designated as an unpaid “meal period” under a qualifying collective bargaining agreement? Fully briefed.
Iloff v. LaPaille, 80 Cal.App.5th 427 (2022) review granted 2022 WL 15050274 (Oct. 26, 2022); S275848/A163503
Petition for review after affirmance in part and reversal in part of the judgment. (1) Must an employer demonstrate that it affirmatively took steps to ascertain whether its pay practices comply with the Labor Code and Industrial Welfare Commission Wage Orders to establish a good faith defense to liquidated damages under Labor Code section 1194.2, subdivision (b)? (2) May a wage claimant prosecute a paid sick leave claim under section 248.5, subdivision (b) of the Healthy Workplaces, Healthy Families Act of 2014 (Lab. Code, § 245 et seq.) in a de novo wage claim trial conducted pursuant to Labor Code section 98.2? Relief brief due.
Rattagan v. Uber Technologies, 19 F.4th 1188 (9th Cir. Dec. 6, 2021), request granted (Feb. 29, 2022) S272113/9th Circ. No. 20-16796
Request under California Rules of Court, rule 8.548, that this court decide questions of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Under California law, are claims for fraudulent concealment exempted from the economic loss rule? Fully briefed.
Ruelas v. County of Alameda, 51 F.4th 1187 (9th Cir. Nov. 1, 2022), cert. granted (Jan. 11, 2023) S277120/9th Cir. No. 21-16528
Request under California Rules of Court, rule 8.548, that this court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Do non-convicted incarcerated individuals performing services in county jails for a for-profit company to supply meals within the county jails and related custody facilities have a claim for minimum wages and overtime under Cal. Lab. Code §section 1194 of the California Labor Code in the absence of any local ordinance prescribing or prohibiting the payment of wages for these individuals? Answer brief due.
Turrieta v. Lyft, Inc., 284 Cal. Rptr. 3d 767 (2021), review granted, 2022 WL 57711 (Mem) (Jan. 5, 2022); S271721/B304701
Petition for review after affirmance of judgment. Does a plaintiff in a representative action filed under the Private Attorneys General Act (Cal. Lab. Code § 2698 et seq.) (PAGA) have the right to intervene, or object to, or move to vacate, a judgment in a related action that purports to settle the claims that plaintiff has brought on behalf of the state? Fully briefed..