Bimonthly column prepared for the California Lawyers Association (formerly State Bar of California) California Labor & Employment Law Review since 2003. 

 

PDF of Latest Column

 

(Updated August 27, 2020)

Discrimination | Harassment | Retaliation

Bonni v .St. Joseph Health Sys., 13 Cal.App.5th 851 (2017), review granted, 224 Cal.Rptr.3d 684 (2017); S244148/G052367

Petition for review after reversal granting anti-SLAPP motion. Further action in this matter deferred pending consideration and disposition of a related issue in Wilson v. Cable News Network, Inc. S239686 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to Cal. Rules of Court, rule 8.520, is deferred pending further order of the court. Fully briefed.

 

Ducksworth v. Tri-Model Distribution Services, 261 Cal.Rptr.3d 108 (2020) review granted, 2020 WL 4696753 (2020); S262699/B294872 

Petition for review after affirmance of judgment. (1) In a cause of action alleging quid pro quo sexual harassment resulting in a failure to promote in violation of the Fair Employment and Housing Act, did the statute of limitations to file an administrative complaint with the Department of Fair Employment and Housing begin to run when the successful candidate was offered and accepted the position, or when that promotion later took effect, if there is no evidence that the plaintiff was aware of the promotion on the earlier date? (2) Was it proper for the Court of Appeal to award costs on appeal under rule 8.278 of the California Rules of Court against an unsuccessful FEHA claimant in the absence of a finding that the underlying claims were objectively frivolous? Review granted/brief due.

Public Works

                                                           

Busker v. Wabtec Corp., 903 F.3d 881 (9th Cir. 2018) S251135/9th Cir. No. 17-55165; 903 F.3d 881

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. Does work installing electrical equipment on locomotives and rail cars (i.e., the ‘on-board work’ for Metrolink’s [Positive Train Control (PTC)] project) fall within the definition of ‘public works’ under California Labor Code § 1720, subdivision (a)(1), either (a) as constituting ‘construction’ or ‘installation’ under the statute or (b) as being integral to other work performed for the PTC project on the wayside (i.e., the ‘field installation work’)? Fully briefed.

Mendoza v. Fonseca McElroy Grinding Co., 913 F.3d 911; (9th Cir. 2019) S253574/9th Cir. No. 17-15221
Request under Cal. Rules of Court rule 8.548, that the supreme court decide a question of California law presented in a matter pending in the United States Court of Appeals for the Ninth Circuit. Is operating engineers’ offsite “mobilization work”—including the transportation to and from a public works site of roadwork grinding equipment—performed “in the execution of [a] contract for public work,” (Labor Code § 1772), such that it entitles workers to “not less than the general prevailing rate of per diem wages for work of a similar character in the locality in which the public work is performed” pursuant to Labor Code § 1771?  Fully briefed.

 

Retirement | Pensions

 

Hipsher v. Los Angeles County Employees etc., 234 Cal.Rptr.3d 564 (2018), review granted, 2018 WL 4368198 (2018); S250244/B276486 & B276486M 

Petition for review after affirmance and modification of grant of peremptory writ of mandate. Further action deferred pending consideration and disposition of a related issue in Alameda County Deputy Sheriffs' Assn. v. Alameda County Employees' Retirement Assn., S247095 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Holding for lead case.

 

Marin Ass’n of Public Employees v. Marin Cnty. Employees’ Retirement Ass’n, 2 Cal.App.5th 674 (2016), review granted, 210 Cal.Rptr.3d 15 (2016); S237460/A139610

Petition for review after affirmance sustaining demurrer without leave to amend. Further action deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda Cnty. Deputy Sheriff's Ass’n v. Alameda Cnty. Employees' Retirement Ass’n, A141913 (see California Rules of Court, rule 8.512(d)(2)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 8.520, is deferred pending further order of the court. Holding for lead case.

 

McGlynn v. State of Calif., 230 Cal. Rptr.3d 470 (2018), review granted, 234 Cal.Rptr.3d 710 (2018); S248513/A146855

Petition for review after affirmance sustaining demurrer. Further action deferred pending consideration and disposition of a related issue in Alameda County Deputy Sheriffs' Assn. v. Alameda County Employees' Retirement Assn., S247095. Holding for lead case. 

Staff Privileges

 

Natarajan v. Dignity Health, 42 Cal. App. 5th 383 (2019), review granted, 259 Cal. Rptr. 3d 195 (2020); S259364/C085906

Petition for review after affirmance of judgment for writ of administrative mandate. Does a physician with privileges at a private hospital have the right to disqualify a hearing officer in a proceeding for revocation of those privileges based on an appearance of bias (see Haas v. County of San Bernardino, 27 Cal. 4th 1017 (2002) or must the physician show actual bias? Reply brief due.

Tort Liability

 

Gonzalez v. Mathis, 20 Cal. App. 5th 257 (2018); review granted, 232 Cal.Rptr.3d 731 (2018), S247677/B272344                                   

Petition for review after reversal of judgment. Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor? Fully briefed.

Sandoval v. Qualcomm Inc., 28 Cal. App. 5th 381 (2018); review granted, 242 Cal.Rptr.3d 418 (2019); S252796/D070431

Petition for review after affirmance of judgment. Can a company that hires an independent contractor be liable in tort for injuries sustained by the contractor’s employee based solely on the company’s negligent failure to undertake safety measures or is more affirmative action required to implicate Hooker v. Department of Transportation, 27 Cal. 4th 198 (2002)? Fully briefed.

Tort Liability

Gonzalez v. Mathis, 20 Cal. App. 5th 257 (2018); review granted, 232 Cal. Rptr. 3d 731 (2018); S247677/B272344                              

Petition for review after reversal of judgment. Can a homeowner who hires an independent contractor be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor? Fully briefed.

 

Sandoval v. Qualcomm Inc., 28 Cal. App. 5th 381 (2018); review granted, 242 Cal. Rptr. 3d 418 (2019); S252796/D070431

Petition for review after affirmance of judgment. Can a company that hires an independent contractor be liable in tort for injuries sustained by the contractor’s employee based solely on the company’s negligent failure to undertake safety measures, or is more affirmative action required to implicate Hooker v. Department of Transportation, 27 Cal. 4th 198 (2002)? Fully briefed.

Unemployment Insurance

 

Skidgel v. California Unemployment Ins. Appeals Bd., 24 Cal. App. 5th 574 (2018), review granted, 238 Cal. Rptr. 3d 118 (2018); S250149/A151224

Petition for review after affirmance of judgment. Are In Home Supportive Services workers (Welf. & Inst. Code, § 12300 et seq.) who are providers for a spouse or a child eligible for unemployment insurance benefits? Fully briefed.

 

Wage and Hour

 

Donohue v. AMN Services, LLC29 Cal.App.5th 1068 (2018), review granted, 245 Cal.Rptr.3d 1 (2019), S253677/D071865

Petition for review after affirmance of judgment. Can employers utilize practices upheld in the overtime pay context to round employees’ time to shorten or delay meal periods? Fully briefed.

Ferra v. Loews Hollywood Hotel, LLC, 40 Cal.App.5th 1239 (2019), review granted,  257 Cal.Rptr.3d 59 (2020), S259172/B283218

Petition for review after affirmance of 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” in Labor Code section 510(a), which requires employers to pay a wage premium for each overtime hour? Reply brief due.

Grande v. Eisenhower Medical Center, 258 Cal. Rptr. 3d 324 (2020), review granted, 2020 WL 2478882, S261247/E068730

Petition for review after affirmance of judgment. May a class of workers bring a wage and hour class action against a staffing agency, settle that lawsuit with a stipulated judgment that releases all of the staffing agency's agents, and then bring a second class action premised on the same alleged wage and hour violations against the staffing agency's client? Review granted/brief due.

Gulf Offshore Logistics v. Superior Court (Norris), 258 Cal.Rptr.3d 569 (2020), review granted, 2020 WL 3456712 (2020); S261881/B298318

Petition for review after grant of petition for peremptory writ of mandate. The court ordered briefing deferred pending decision in Oman v. Delta Airlines, S248726, and Ward v. United Airlines, Inc., S248702, both on certification from the Ninth Circuit, in which the court will address questions concerning the application of California's wage and hour statutes to work performed in the state by non-resident employees of out-of-state employers. Review granted/holding for lead cases.

In re Certified Tire and Service Centers Wage and Hour Cases, 28 Cal.App.5th 1 (2018), review granted, 2019 Cal. LEXIS 162 (2018); S252517/D072265 
Petition for review granted after affirmance of judgment. Briefing deferred pending decision in Oman v. Delta Airlines, S248726, on certification from the Ninth Circuit, in which the Court agreed to address the following questions: “(1) Do California Labor Code sections 204 and 226 apply to wage payments and wage statements provided by an out-of-state employer to an employee who, in the relevant pay period, works in California only episodically and for less than a day at a time? (2) Does California minimum wage law apply to all work performed in California for an out-of-state employer by an employee who works in California only episodically and for less than a day at a time? (See Cal. Labor Code, §§ 1182.12, 1194; Cal. Code Regs., § 11090(4).) (3) Does the Armenta/Gonzalez bar on averaging wages apply to a pay formula that generally awards credit for all hours on duty, but which, in certain situations resulting in higher pay, does not award credit for all hours on duty? (See Gonzales v. Downtown LA Motors, LP (2013) 215 Cal. App. 4th 36, 155 Cal. Rptr. 3d 18; Armenta v. Osmose, Inc. (2005) 135 Cal. App. 4th 314, 37 Cal. Rptr. 3d 460.)” Holding for lead case.

Kaanaana v. Barrett Business Services, Inc., 29 Cal.App.5th 778 (2018), review granted, 2019 WL 962726 (2019); S253458/B276420, B279838
Petition for review after reversal of judgment. Should the phrase “work done for irrigation, utility, reclamation, and improvement districts, and other districts of this type” in Labor Code section 1720, subdivision (a)(2), of California’s Prevailing Wage Law (Lab. Code, § 1720 et. seq.) be interpreted to cover any type of work regardless of its nature, funding, purpose or function, including belt sorting at recycling facilities? Fully briefed.

Naranjo v. Spectrum Security Services, Inc., 40 Cal.App.5th 444 (2019), review granted, 257 Cal.Rptr.3d 188 (2020), S258966/B256232

Petition for review after art affirmance and part reversal of judgment. (1) Does a violation of Labor Code section 226.7, which requires payment of premium wages for meal and rest period violations, give rise to claims under Labor Code sections 203 and 226 when the employer does not include the premium wages in the employee’s wage statements but does include the wages earned for meal breaks? (2) What is the applicable prejudgment interest rate for unpaid premium wages owed under Labor Code section 226.7? Fully briefed.

Vazquez v. Jan-Pro Franchising International, Inc., 939 F.3d 1045 (9th Cir. 2019) S258191/9th Cir. No. 17-16096

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 the decision in Dynamex Operations West Inc. v. Superior Court (2018) 4 Cal.5th 903, apply retroactively? Reply brief due.

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

ADRlogo.jpg
linkedin_logo-simple-1024x1024.jpg
TwitterBird.png
youtube-logo.jpg
instagram-new-2016-logo-D9D42A0AD4-seekl