​

 

Soria v. Univision Radio Los Angeles (CA2/7 B263224 11/15/16) Disability Discrimination

 

Sofia Soria, a former on-air radio personality for Univision Radio Los Angeles, Inc. and Univision Communications, Inc. (collectively Univision), appeals from the judgment entered after the trial court granted summary judgment in favor of Univision in Soria’s action for disability discrimination, wrongful termination and related employment claims.  Because material issues of fact exist regarding each of Soria’s claims, we reverse. 

 

http://www.courts.ca.gov/opinions/documents/B263224.PDF

 

Lee v. West Kern Water Dist. (CA5 F070772, filed 10/24/16, pub. ord. 11/15/16) Workers’ Compensation Exclusivity

 

This case involves the applicability of the workers’ compensation exclusivity rule to an unusual set of facts.  This rule governs the matter of when an injured worker can bring a civil action against the employer and when he or she is instead limited to the remedy of a workers’ compensation award.

 

Plaintiff Kathy Lee, an employee of defendant West Kern Water District (district), sued the district and four coemployees for assault and intentional infliction of emotional distress after the coemployees staged a mock robbery with Lee as the victim.  In the mock robbery, one of the district’s managers entered the district’s office in a mask and confronted Lee at the cashier’s window with a note demanding money and saying he had a gun.  Lee, who had not been informed of the planned mock robbery, handed over the money and subsequently was treated for psychiatric injury.  The jury awarded her $360,000. 

 

The trial court denied defendants’ motion for judgment notwithstanding the verdict but granted their motion for a new trial.  It concluded it had given the jury an inappropriate instruction on the workers’ compensation exclusivity rule.

 

Lee appealed from the order granting a new trial.  Defendants appealed from the denial of their motion for judgment notwithstanding the verdict.

 

We will reverse the new trial order.  The jury instructions were not erroneous.  Alternative grounds for affirmance proposed by defendants lack merit.  We will affirm the order denying the motion for judgment notwithstanding the verdict.

 

http://www.courts.ca.gov/opinions/documents/F070772.PDF

​

Dinslage v. City and County of San Francisco (CA5/5 A142365 11/9/16) FEHA Age Discrimination/Retaliation

 

David P. Dinslage is a former employee of Recreation and Parks Department (the Department) of the City and County of San Francisco (the City).  As part of a large-scale restructuring of the Department’s recreation programs, Dinslage’s employment classification was eliminated, and he was one of a large number of employees who were laid off.  Although he applied to be rehired in a newly created classification, he was not offered a position.  He then retired from City employment.

           

Dinslage sued the Department, the City, and a number of the Department’s managerial employees for age discrimination, retaliation, and harassment in violation of the California Fair Employment and Housing Act (FEHA).  (Gov. Code, § 12940, subds. (a), (h), (j).)   He claimed the Department had taken a number of adverse employment actions against him based on his age.  In addition, he claimed he had been retaliated against and harassed because of his age and his opposition to Department actions that discriminated against people with disabilities.

           

Respondents, defendants below, moved for summary judgment on all of Dinslage’s causes of action.  They claimed, with supporting evidence, that their actions were taken for legitimate, nondiscriminatory reasons.  Dinslage opposed the motion, but the trial court agreed with respondents and granted them summary judgment on all counts of Dinslage’s complaint.

           

Dinslage now appeals, contending there were triable issues of fact on his age discrimination and retaliation claims.  In accordance with our standard of review, we have examined the record de novo.  In the unpublished portion of our opinion, we conclude the trial court did not err in granting summary judgment to respondents on Dinslage’s age discrimination claim.

           

In the published portion of our opinion, we hold the superior court properly granted summary judgment on Dinslage’s retaliation claim because he failed to make out a prima facie case of retaliation.  To prevail, Dinslage was required to show he suffered an adverse employment action because he had engaged in a “protected activity.”  We hold that Dinslage’s opposition to Department policies and practices he viewed as discriminating against disabled members of the general public is not protected activity because his opposition was not directed at an unlawful employment practice.  Thus, Dinslage could not reasonably have believed the practices he opposed were prohibited by the FEHA.

 

http://www.courts.ca.gov/opinions/documents/A142365.PDF

 

Perez v. City of Westminster (CA4/3 G050718, filed 10/20/16, pub. ord. 11/9/16) Public Safety Officers Procedural Bill of Rights Act

 

Brian Perez, an officer with the Westminster Police Department, was given notice of intent to terminate his employment, based on an alleged lack of honesty and cooperation in the investigation of a claim of police brutality.  Perez appealed the decision to terminate his employment, and the chief of police concluded the allegations against Perez could not be sustained.  Perez’s employment was not terminated, but he was removed from the SWAT team and the honor guard, and although he remained a field training officer, he was not assigned any trainees.  Perez sued for violation of his rights under the Public Safety Officers Procedural Bill of Rights Act (Gov. Code, § 3300 et seq.) (the Act).  The trial court found the removal of Perez from the SWAT team and the honor guard, and the failure to assign trainees to him as a field training officer did not violate the Act.  Perez appeals, and we affirm.  Substantial evidence amply supported the trial court’s decision.

 

http://www.courts.ca.gov/opinions/documents/G050718.PDF

 

Goonewardene v. ADP, LLC (CA2/4 B267010 11/4/16) Wrongful Termination

 

In the underlying action, appellant Sharmalene Goonewardene’s fifth amended complaint asserted claims against respondents ADP, LLC, ADP Payroll Services, Inc. and AD Processing, LLC for wrongful termination, violations of the Labor Code, and related causes of action, including breach of contract, negligent misrepresentation, and negligence.  The trial court sustained respondents’ demurrers relating to the fifth amended complaint without leave to amend.  Appellant contends the court abused its discretion in denying her leave to amend, arguing that her proposed sixth amended complaint states claims against respondents.  We conclude that the proposed complaint states claims against respondents only for breach of contract, negligent misrepresentation, and negligence.  We therefore affirm the trial court’s ruling in part, reverse it in part, and remand with instructions to permit appellant to file a complaint against respondents asserting those claims.

 

http://www.courts.ca.gov/opinions/documents/B267010.PDF

 

Armani v. Northwestern Mutual (9th Cir 14-56866 11/4/16) ERISA

 

The panel vacated in part the district court’s judgment in favor of the defendant in part in plaintiff’s action under the Employee Retirement Income Security Act, challenging a denial of benefits under a long term disability insurance policy.

 

The administrative record showed that the plaintiff could not sit for more than four hours a day. The district court, reviewing de novo, nonetheless upheld the insurer’s determination that the plaintiff could performs dentary work. The panel held that the district court erred by rejecting the plaintiff’s proposed definition of “sedentary” work on the basis that it was drawn from the Social Security context. Agreeing with other circuits, the panel held that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform “sedentary” work that requires “sitting most of the time.”

 

The panel vacated the part of the district court’s judgment denying the plaintiff his long term disability benefits and remanded for further proceedings.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/04/14-56866.pdf

 

Matson v. UPS (9th Cir. 13-36174 11/4/16) Labor Management Relations Act/Preemption

 

The panel reversed the district court’s preemption ruling; held that the district court erred in holding that an employee’s state law gender-based hostile work environmental claim was preempted under § 301 of the Labor Management Relations Act (LMRA); reinstated the jury verdict from the first trial in favor of the employee; and remanded.

 

The panel noted the two-part test used to determine whether a state law claim is preempted under § 301 of the LMRA. At the first step, the court asks “whether a particular right inheres in state law or, instead, is grounded in a [collective bargaining agreement (CBA)],” Burnside v. Kiewit Pac. Corp., 491 F.3d 1053, 1060 (9th Cir. 2007); and preemption is warranted at this step only if the claim is directly founded on rights created by the CBA. At step two, the court asks whether the state law claim can be resolved by “looking to” the CBA, in which case the claim is not preempted; or whether the claim “interprets” the CBA, in which case the claim is preempted.

 

The panel held that adjudication of the employee’s hostile work environment claim did not require interpretation of a provision of the CBA, and preemption under § 301 of the LMRA was not warranted. Specifically, the panel rejected the employer’s suggestion that the employee’s claim was nothing more than a repackaged “contractual dispute” over the assignment of extra work. The panel concluded that the claim was not preempted under the first Burnside factor because it was not grounded in any right created by the CBA. The panel further held that nothing in the nature of the employee’s hostile work environment claim required interpretation of the CBA. The panel also rejected the employer’s argument that Perugini v. Safeway Stores, Inc., 935 F.2d 1083 (9th Cir. 1991), controlled this case. 

 

The panel held that because the district court’s conclusion that the jury’s damages award was “grossly excessive” rested in part on its erroneous preemption ruling, that determination was also reversed, and the panel remanded for reconsideration of the damages question.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/11/04/13-36174.pdf 

 

Cameron v. Sacramento Co. Employees' Retirement System (CA3 C077823 11/2/16) Disability Retirement

 

Plaintiff and appellant Paul Cameron appeals from the trial court’s judgment denying his petition for a writ of administrative mandate challenging the Sacramento County Employees’ Retirement System Board’s (SCERS) decision to reject his application seeking a service-connected disability retirement.

 

Plaintiff submitted his application for disability retirement on May 22, 2009, after the second of two injuries he sustained during his tenure as a Sacramento County employee.  The SCERS staff referred this matter to the Office of Administrative Hearings where it was heard by Administrative Law Judge (ALJ) Catherine B. Frink.  On February 6, 2013, the ALJ found that the application was untimely and denied the application for service-related retirement.  Based on the ALJ’s findings, SCERS denied plaintiff’s application for service-connected retirement.

 

Plaintiff then filed a petition for writ of administrative mandate challenging the board’s decision.  The trial court denied plaintiff’s petition.  On appeal, plaintiff contends that the trial court erred in denying his application for service-connected disability retirement.

 

In the published portion of this opinion, we conclude that plaintiff failed to show he was continuously disabled within the meaning of Government Code sections 31722 and 31641, subdivision (a),  between the discontinuance of his service and the time he filed his application for service-connected disability retirement.  Consequently, his application was not timely under section 31722.

 

In the unpublished portion of this opinion, we conclude that plaintiff has not shown that SCERS failed to inform him of his rights regarding disability retirement, misled him concerning those rights, otherwise breached its fiduciary duty to him, or caused plaintiff’s delay in making his application.

 

http://www.courts.ca.gov/opinions/documents/C077823.PDF

​

Walker v. Apple, Inc. (CA4/1Wage D069713, filed 9/28/16, pub. ord. 10/28/16) Wage-and-Hour Class Action/Attorney Disqualification

 

Stacey Walker and Tyler Walker (together, the Walkers), the plaintiffs in this putative class action against their former employer, Apple, Inc. (Apple), appeal the trial court's order disqualifying their counsel, Hogue & Belong (the Firm).  The trial court found automatic disqualification was required on the basis the Firm had a conflict of interest arising from its concurrent representation of the putative class in this case and the certified class in another wage-and-hour class action pending against Apple (Felczer v. Apple, Inc. (Super. Ct. San Diego County No. 37-2011-00102573-CU-OE-CTL) (Felczer)).  Specifically, based on the parties' litigation strategies and evidence Apple submitted in support of its disqualification motion, the trial court concluded that to advance the interests of its clients in this case, the Firm would need to cross-examine a client in the Felczer class (the Walkers' store manager) in a manner adverse to that client.

           

On appeal, the Walkers contend the trial court erred by concluding (1) the store manager, as an unnamed member of the Felczer class, is a Firm client; (2) the Walkers' and the store manager's interests conflict; and (3) disqualification was automatic in the class action context.  On the record before us—where a class has been certified in Felczer, and undisputed evidence establishes the store manager's identity and her likely significant role in this case—we conclude the trial court did not err in finding the Firm represents the store manager and that a disqualifying conflict exists between her interests and the Walkers' interests.  Therefore, we affirm.

 

http://www.courts.ca.gov/opinions/documents/D069713.PDF

 

Taylor v. Dept. of Industrial Relations (CA1/5 A146148 10/26/16) DLSE Penalty Assessment

 

The Department of Industrial Relations, Division of Labor Standards Enforcement (DLSE) imposed a $179,329.60 penalty, pursuant to Labor Code section 3722, subdivision (b) (hereafter section 3722(b)), against A. Taylor, LLC  for failure to maintain workers’ compensation insurance as required by section 3700.  Taylor requested an administrative hearing and then filed a petition for writ of administrative mandamus under section 3725.  The petition was dismissed after the trial court sustained DLSE’s demurrer without leave to amend.  On appeal, Taylor renews various statutory construction and constitutional challenges to the penalty and section 3722(b).  In the published portion of this opinion, we hold “calendar year,” as used in section 3722(b), means the 12-month period immediately preceding a determination that an employer has been uninsured for the requisite period.  In the unpublished portion of this opinion, we reject Taylor’s constitutional challenges.  We conclude the trial court properly determined the petition for writ of mandate failed to state a cause of action and affirm.

 

http://www.courts.ca.gov/opinions/documents/A146148.PDF

 

Khosh v. Staples Construction (CA2/6 B268937 10/26/16) Privette doctrine/Nondelegable Duty Exception

 

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).)  There are exceptions to this rule but they do not apply here.  We decide that the trial court correctly granted a motion for summary judgment against the injured employee when he failed to present evidence that respondent affirmatively contributed to his injuries.  As a result, there were no triable issues of material fact on his theory that either the retained control exception or the nondelegable duty exception applied.

           

Al Khosh was injured while performing electrical work at California State University Channel Islands (the University).  He was employed by Myers Power Products, Inc. (Myers), a subcontractor on the project.  Khosh sued the general contractor, Staples Construction Company, Inc. (Staples), for negligence. 

           

The trial court granted Staples’s motion for summary judgment because Khosh failed to establish that Staples retained control over his work and affirmatively contributed to his injury.  (Code Civ. Proc., § 437c; Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker).)  Khosh contends that a reasonable jury could find Staples (1) retained control over the work and affirmatively contributed to Khosh’s injury; and (2) breached a nondelegable duty to Khosh which caused his injury.  He also contends the court erred in sustaining Staples’s evidentiary objections.  We affirm.

 

http://www.courts.ca.gov/opinions/documents/B268937.PDF

 

Rollins v. SEIU-UHW (9th Cir. 14-55971 10/26/16) Labor Management Relations Act § 301

 

The panel reversed the district court’s order granting summary judgment to defendant union on a claim under § 301 of the Labor Management Relations Act.

 

During a reduction in force, the plaintiff was laid off from her position as a billing coordinator at a hospital. To prevail on her claim against the union in this hybrid fair representation/§ 301 suit, the plaintiff was required to show both that the hospital breached a collective bargaining agreement (“CBA”) and that the union breached its duty of fair representation by failing to pursue her grievance regarding the hospital’s failure to allow her to “bump” back to her prior ward clerk position, rather than be laid off. The plaintiff asserted that this failure violated both a 2008 CBA and a 2007 side agreement, known as the Seniority Agreement, which had been negotiated on her behalf by a union representative.

 

The panel held that the Seniority Agreement was neither inadmissible under the parol evidence rule nor superseded by the 2008 CBA. The panel concluded that the Seniority Agreement did not conflict with either the 2008 CBA or a 2012 memorandum of understanding through which the union and the hospital implemented the reduction in force. The panel held that the hospital breached both the Seniority Agreement and the CBA.

 

The panel held that the plaintiff also established a triable issue whether the union breached its duty of fair representation by processing her grievance in a perfunctory manner. The plaintiff submitted sufficient evidence that the union never seriously considered her rights under the Seniority Agreement; improperly lumped her with other, nonsimilarly situated employees; and provided factually contested reasons for rejecting her grievance.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/26/14-55971.pdf

 

Pierson v. Helmerich & Payne etc. Drilling (CA5 F070379, filed 10/6/16, pub. ord.10/25/16) Respondeat Superior/Coming and Going Rule

 

This appeal presents a question of employer liability under the doctrine of respondeat superior for a traffic accident caused by an oil rig worker driving home after work and providing two other employees with a ride to their employer-paid hotel.  Under the going and coming rule, employees traveling to and from work are considered outside the scope of employment and, therefore, employers are not liable for torts committed during the employee’s commute.  The going and coming rule, however, is subject to many exceptions and plaintiff argues that the employee who caused the traffic accident fell within the special errand exception or the required-vehicle exception.

 

The question whether to apply the going and coming rule or an exception was presented to the trial court by the employer’s motion for summary judgment and the plaintiff’s motion for summary adjudication.  The trial court granted the employer’s motion based on the facts that (1) the employees were responsible for arranging and paying for transportation from the employer-provided hotel to the jobsite, (2) the employer did not require employees to carpool or rideshare, and (3) the employer did not derive an incidental benefit from the ridesharing arrangements of its employees.

 

We conclude that the undisputed facts establish that the going and coming rule applies in this case.  It cannot be reasonably inferred from the undisputed facts that the employer impliedly required or requested the driver to provide transportation to his supervisor between the hotel and the jobsite.  The supervisor’s requests for such rides were personal in nature and are not reasonably imputed to the employer.  Therefore, this case is comparable with other cases in which the going and coming rule was applied to employees who made their own carpooling or ridesharing arrangements.  (See Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th 254, 262 (Anderson) [employee-driver was not engaged in a special errand for employer because he was carpooling—i.e., taking another employee to a park-and-ride lot on his way home]; Caldwell v. A.R.B., Inc. (1986) 176 Cal.App.3d 1028, 1042 [no employer liability where carpooling was organized informally by individual workers] (Caldwell).)  Consequently, the employer is not liable for the traffic accident under the doctrine of respondeat superior.

 

We therefore affirm the judgment. 

 

http://www.courts.ca.gov/opinions/documents/F070379.PDF

 

Agricultural Labor etc. Bd. v. Super. Ct. (CA3 C081373 10/25/16) ALRB Injunctive Relief/Public Records Act

 

Under the Alatorre-Zenovich-Dunlap-Berman Agricultural Labor Relations Act (Lab. Code, § 1140; the Act), the Agricultural Labor Relations Board (§ 1141 et seq.; the board) adjudicates administrative complaints of unfair labor practices committed by agricultural employers, labor organizations, and their agents.  (§§ 1153-1155.7, 1160-1160.3.)  The board’s general counsel (general counsel) serves as the prosecutor in those administrative proceedings, with “final authority, on behalf of the board, with respect to the investigation of charges and issuance of complaints [for unfair labor practices], and with respect to the prosecution of such complaints before the board.”  (§ 1149.)  In one area, however, the Act conveys a prosecutorial power with respect to unfair labor practices upon the board, rather than upon general counsel; namely, the power to seek injunctive relief in a superior court.  (§ 1160.4.)

 

For some period of time before March 2015, the board had delegated plenary authority to seek injunctive relief under section 1160.4 to general counsel.  In March 2015, the board decided to change that delegation by requiring general counsel to obtain case-specific approval from the board for every request for injunctive relief.

 

In May 2015, general counsel asked the board to approve a proceeding for injunctive relief against Gerawan Farming, Inc. (Gerawan).  The board gave its conditional approval to that proceeding.  When Gerawan asked the board to disclose the communications between the board and general counsel regarding the matter under the California Public Records Act, the board refused, claiming privilege.  Gerawan brought a writ proceeding in Sacramento County Superior Court seeking to force the board to disclose the requested communications, and the court ordered disclosure.  The board brought the present writ proceeding in this court to challenge the superior court’s ruling.

 

For the reasons set forth hereafter, we conclude the superior court erred in ordering disclosure of the communications between the board and general counsel relating to the decision to seek injunctive relief against Gerawan because those communications are protected by the attorney-client privilege.  As we will explain, even if due process concerns with respect to the pending administrative proceeding against Gerawan are raised by the communications at issue, those concerns do not preclude the attorney-client privilege from attaching to those communications, and because the communications are privileged, they are exempt from disclosure under the Public Records Act.  Accordingly, we will direct that a writ of mandate issue ordering the superior court to vacate its order requiring disclosure of those communications and enter a new order denying Gerawan’s request for disclosure.

 

http://www.courts.ca.gov/opinions/documents/C081373.PDF

 

Liberty Surplus Ins. Corp. v. Ledesma & Meyers Construction Co., Inc., (S236765/9th Cir. No. 14-56120; __ F.3d __, 2016 WL 4434589, req. granted, 10/19/16) Negligent Hiring, Retention, Supervision

​

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. The question presented is: “Whether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.” Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ.  Review granted/brief due.

 

9th Circuit Order

CA Supreme Court Docket

 

Soto v. Motel 6 Operating (CA4/1 D069403 10/20/16) Wage Statements/PAGA

 

Lidia Soto sued her former employer, Motel 6 Operating, L.P. (Motel), alleging Motel violated Labor Code section 226, subdivision (a) by failing to include the monetary amount of accrued vacation pay in its employees' wage statements.  Soto filed the action in her individual capacity and on behalf of all aggrieved workers under the Private Attorney General Act of 2004 (PAGA).  (§ 2698 et seq.)

 

The court sustained Motel's demurrer without leave to amend.  We affirm.  Section 226(a) does not require employers to include the monetary value of accrued paid vacation time in employee wage statements unless and until a payment is due at the termination of the employment relationship.

 

http://www.courts.ca.gov/opinions/documents/D069403.PDF

 

Nguyen v. Applied Medical Resources Corp. (CA4/3  G052207, filed 10/4/16, pub. ord. 10/14/16) Arbitration/PAGA

 

Plaintiff Da Loc Nguyen appeals from the trial court’s order granting the motion of his former employer, defendant Applied Medical Resources Corporation, to compel arbitration based on an arbitration clause contained in his employment application.  The court ordered plaintiff to submit his individual claims to arbitration and struck all class and representative claims except for the representative Private Attorney General Act (PAGA) cause of action. 

 

Plaintiff contends the order is immediately appealable based on the death knell doctrine, which makes an order terminating class allegations but allowing individual claims to continue immediately appealable.  He argues Munoz v. Chipotle Mexican Grill, Inc. (2015) 238 Cal.App.4th 291 (Munoz), which held that the death knell doctrine is inapplicable where a PAGA cause of action remains, was wrongly decided and should not be followed.  We disagree but nevertheless treat the appeal as a petition for writ of mandate. 

           

As to the merits of the appeal, plaintiff asserts the court erred in finding the arbitration clause was not unconscionable, severing the cost provision, and dismissing the class claims with prejudice.  We reject all but the last argument.  Based on the recent case of Sandquist v. Lebo Automotive Inc. (2016) 1 Cal.5th 233 (Sandquist), on which we have received supplemental briefing from the parties, the trial court erred in dismissing the class claims because whether the arbitration provision contemplated class arbitration was a question for the arbitrator to decide. 

           

We shall issue a peremptory writ of mandate commanding the trial court to vacate that portion of its order dismissing the class claims to allow the arbitrator to decide whether the arbitration clause permits arbitration on a class-wide basis.  In all other respects, the peremptory writ challenging the order compelling arbitration is denied.  We grant plaintiff’s request for judicial notice of the American Arbitration Association’s (AAA) Employment Arbitration Rules and Mediation Procedures, amended and effective June 1, 2009, Employment Arbitration Rules and Mediation Procedures, amended and effective November 1, 2009, and Supplemental Rules for Class Arbitrations.

 

 

http://www.courts.ca.gov/opinions/documents/G052207.PDF

 

WalMart Stores v. United Food & Commercial Workers (CA2/8 B259926A 10/14/16)NLRA/Preemption

 

In September 2014, the trial court issued a permanent injunction barring defendants United Food and Commercial Workers International Union (UFCW) and Organization United for Respect at Walmart (OUR Walmart; collectively the union) from conducting demonstrations inside stores owned by Wal-Mart Stores, Inc., and affiliated companies (collectively Walmart).  On appeal, the union contends the trial court had no jurisdiction to enter the injunction because the matter was preempted by the National Labor Relations Act (29 U.S.C. § 151, et seq.; NLRA).  We conclude the NLRA does not preempt Walmart’s trespass action.

 

http://www.courts.ca.gov/opinions/documents/B259926A.PDF

 

Ziober v. BLB Resources (9th Cir. 14-56374 10/14/16) USERRA/Arbitration

 

The panel affirmed the district court’s order compelling arbitration and dismissing an action under the Uniformed Services Employment and Reemployment Rights Act.

 

Joining other circuits, the panel held that USERRA does not prohibit the compelled arbitration of claims arising under its provisions, which establish employment rights for returning servicemembers. The panel concluded that neither the text nor the legislative history of USERRA evinced Congressional intent to override the Federal Arbitration Act’s mandate that courts rigorously enforce arbitration agreements according to their terms.

 

Concurring, Judge Watford wrote that while the proper interpretation of USERRA was open to debate, it was not prudent to create a circuit split by reversing the district court’s ruling.

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2016/10/14/14-56374.pdf 

 

FInal List of 2016 Labor & Employment Bills Signed by Governor

​

• ABX2-7 by Assemblymember Mark Stone (D-Scotts Valley) – Smoking in the workplace

​

• AB 326 by Assemblymember Jim L. Frazier Jr. (D-Oakley) – Public works: prevailing wage rates: wage and penalty assessments

 

• AB 488 by Assemblymember Lorena Gonzalez (D-San Diego) - Employment discrimination

 

• AB 736 by Assemblymember Ken Cooley (D-Rancho Cordova) – State teachers' retirement: executive positions

 

• AB 908 by Assemblymember Jimmy Gomez (D-Los Angeles) - Paid Family Leave

 

• AB 1066 by Assemblymember Lorena Gonzalez (D-San Diego) – Agricultural workers: wages, hours, and working conditions

 

• AB 1311 by Assemblymember Jim Cooper (D-Elk Grove) – Temporary services employees: wages

 

• AB 1627 by the Committee on Budget – State employment: memorandum of understanding: Bargaining Unit 7

 

• AB 1661 by Assemblymember Kevin McCarty (D-Sacramento) – Local government: sexual harassment prevention training and education

 

• AB 1669 by Assemblymember Roger Hernández (D-West Covina) – Displaced employees: service contracts: collection and transportation of solid waste

 

• AB 1676 by Assemblymember Nora Campos (D-San Jose) - Employers: wage discrimination

 

• AB 1684 by Assemblymember Mark Stone (D-Scotts Valley) – Civil actions: human trafficking

 

• AB 1687 by Assemblymember Ian C. Calderon (D-Whittier) – Customer records: age information: commercial online entertainment employment service providers

 

• AB 1692 by Assemblymember Susan Bonilla (D-Concord) – County employees' retirement: Contra Costa County

 

• AB 1709 by Assemblymember James M. Gallagher (R-Plumas Lake) – Deaf or hard-of-hearing individuals

​

• AB 1732 by Assemblymember Phil Ting (D-San Mateo)- single-user restrooms (for members of the public in business establishments)

 

• AB 1840 by Assemblymember Mike A. Gipson (D-Carson) – State agencies: interns and student assistants: hiring preference

 

• AB 1843 by Assemblymember Mark Stone (D-Scotts Valley) - Applicants for employment: criminal history

 

• AB 1875 by Assemblymember Rocky Chávez (R-Oceanside) – State teachers' retirement: option beneficiaries: trusts

 

• AB 1887 by Assemblymember Evan Low (D-Campbell) - State government: discrimination: travel

 

• AB 1918  by Assemblymember Patrick O’Donnell (D-Long Beach) – Teacher credentialing: temporary certificates

 

• AB 1926 by Assemblymember Jim Cooper (D-Elk Grove) – Public works: prevailing wage: apprentices

 

• AB 1953 by Assemblymember Shirley N. Weber (D-San Diego) – Peace officers: civilian complaints.

 

• AB 2025 by Assemblymember Lorena Gonzalez (D-San Diego) – Barbering and cosmetology: labor law education requirements

 

• AB 2028 by Assemblymember Jim Cooper (D-Elk Grove) – Public employees' retirement: involuntary termination: reinstatement

 

• AB 2061 by Assemblymember Marie Waldron (R-Escondido) – Supervised Population Workforce Training Grant Program

 

• AB 2063 by Assemblymember James M. Gallagher (R-Plumas Lake) – Work-based learning opportunities: work experience education and job shadowing

 

• AB 2068 by Assemblymember Chris Holden (D-Pasadena) – Talent services

 

• AB 2126 by Assemblymember Kevin Mullin (D-South San Francisco) – Public contracts: Construction Manager/General Contractor contracts

 

• AB 2230 by Assemblymember Kansen Chu (D-San Jose) – Overtime compensation: private elementary or secondary academic institutions: teachers

 

• AB 2248 by Assemblymember Chris Holden (D-Pasadena) – Teacher credentialing: out-of-state trained teachers: English learner authorizations

 

• AB 2288 by Assemblymember Autumn R. Burke (D-Inglewood) - Apprenticeship programs: building and construction trades

 

• AB 2296 by Assemblymember Evan Low (D-Campbell) – Digital signatures (applicable to DFEH online right-to-sue requests)

 

• AB 2337 by Assemblymember Autumn R. Burke (D-Inglewood) – Employment protections: victims of domestic violence, sexual assault, or stalking

 

• AB 2375 by the Committee on Public Employees, Retirement, and Social Security – Public Employees' Retirement System: omnibus bill

 

• AB 2376  by the Committee on Public Employees, Retirement, and Social Security – County employees’ retirement: Los Angeles County

 

• AB 2393 by Assemblymember Nora Campos (D-San Jose) – School employees: sick leave: parental leave

 

• AB 2404 by Assemblymember Ken Cooley (D-Rancho Cordova) - Public Employees' Retirement System: optional settlements

 

• AB 2532 by Assemblymember David S. Chiu (D-San Francisco) – Employment services: verification

 

• AB 2535 by Assemblymember Sebastian Ridley-Thomas (D-Los Angeles) – Employment: wages: itemized statements

 

• AB 2551 by Assemblymember James M. Gallagher (R-Plumas Lake) – Contract procurement: surface storage projects

 

• AB 2687 by Assemblymember Katcho Achadjian (R-San Luis Obispo) – Vehicles: passenger for hire: driving under the influence

 

• AB 2763 by Assemblymember Mike Gatto (D-Glendale) – Transportation network companies: personal vehicles

 

• AB 2780 by Assemblymember Chris Holden (D-Pasadena) – Fair Employment and Housing Council: membership: length of terms

 

• AB 2843, Chau. Public records: employee contact information

 

• AB 2844, Bloom. Public contracts: discrimination

 

• AB 2899 by Assemblymember Roger Hernández (D-West Covina) – Minimum wage violations: challenges

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• SB 3 by Senator Mark Leno (D-San Francisco) - Minimum Wage

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• SB 24 by Senator Jerry Hill (D-San Mateo) – California Public Employees' Pension Reform Act of 2013: joint powers authority: employees

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• SB 95 by the Committee on Budget and Fiscal Review – State employees: memorandum of understanding

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• SB 269 by Senator Richard D. Roth (D-Riverside) – Disability access​

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• SB 693 by Senator Ben Hueso (D-San Diego) – Public contracts: skilled and trained workforce

 

• SB 702 by Senator Mike McGuire (D-Healdsburg) – Employment of minors: agricultural packing plants

 

• SB 826 by Senator Mark Leno (D-San Francisco), among other things, the 2016-17 budget begins implementing the state's new $15 per hour minimum wage by raising the statewide minimum wage to $10.50 per hour beginning on January 1, 2017

 

• SB 836 by Committee of the Budget and Fiscal Review - State budget, including Private Attorney General's Act (PAGA) amendments​

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• SB 848 by the Committee on Budget and Fiscal Review - State Employment

 

• SB 916 by Senator Ben Allen (D-Santa Monica) – Teacher credentialing

 

• SB 954 by Senator Robert M. Hertzberg (D-Van Nuys) – Public works: prevailing wage: per diem wages

 

• SB 1001 by Senator Holly J. Mitchell (D-Los Angeles) – Employment: unfair practices

 

• SB 1015 by Senator Connie M. Leyva (D-Chino) – Domestic work employees: labor standards

 

• SB 1038 by Senator Ben Allen (D-Santa Monica) - Community colleges: employees

 

• SB 1063 by Senator Isadore Hall III (D-Compton) - Conditions of employment: wage differential: race or ethnicity 

 

• SB 1139 by Senator Ricardo Lara (D-Bell Gardens) – Health professionals: medical degree programs: healing arts residency training programs: undocumented immigrants: nonimmigrant aliens: scholarships, loans, and loan repayment

 

• SB 1146 by Senator Ricardo Lara (D-Bell Gardens) – Discrimination: postsecondary education

 

• SB 1167, by Senator Tony Mendoza (D-Artesia) - Employment safety: indoor workers: heat regulations

 

• SB 1180 by Senator Hannah-Beth Jackson (D-Santa Barbara) - Public school employees: military veterans: leave of absence for illness or injury

 

• SB 1203 by Senator Robert M. Hertzberg (D-Van Nuys) - Retirement systems: joint powers authorities: benefit formulas

 

• SB 1234 by Senator Kevin De León (D-Los Angeles) - Retirement savings plans

 

• SB 1241 by Senator Bob Wieckowski (D-Fremont) – Employment contracts: adjudication: choice of law and forum

 

• SB 1342 by Senator Tony Mendoza (D-Artesia) – Wages: investigations: subpoenas.

 

• SB 1353 by Senator Richard Pan (D-Sacramento) – State Teachers' Retirement System: funding

 

• SB 1375 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Educational equity: sex equity in education: federal Title IX notifications

 

• SB 1379 by Senator Tony Mendoza (D-Artesia) – Community colleges: part-time, temporary employees

 

• SB 1413 by Senator Mark Leno (D-San Francisco) - School districts: employee housing

 

• SB 1442 by Senator Carol Liu (D-La Canada Flintridge) - Discrimination: regulations and enforcement

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Further Bills Signed by Governor (9/30/16)

 

• AB 54 by Assemblymember Kristin M. Olsen (R-Modesto) – Disability access: construction-related accessibility claims: demand letters

 

Existing law prohibits discrimination on the basis of various specified personal characteristics, including disability. The Construction-Related Accessibility Standards Compliance Act establishes standards for making new construction and existing facilities accessible to persons with disabilities and provides for construction-related accessibility claims for violations of those standards. Existing law requires that a copy of the demand letter and the complaint be sent to the California Commission on Disability Access.

 

This bill would, in addition, require that information about the demand letter and the complaint be submitted to the commission in a standard format specified by the commission on the commission’s Internet Web site. The bill would require the commission to post a new standard format on its Internet Web site at least 30 days before requiring information be in the new standard format.

 

• AB 1669 by Assemblymember Roger Hernández (D-West Covina) – Displaced employees: service contracts: collection and transportation of solid waste

 

Existing law requires a local government agency letting a public transit service contract out to bid to give a bidding preference for contractors and subcontractors who agree to retain for a specified period certain employees who were employed to perform essentially the same services by the previous contractor or subcontractor. Such a contractor or subcontractor is required to offer employment to those employees, except for reasonable and substantiated cause. Existing law requires a successor contractor or subcontractor that determines that fewer employees are needed than under the prior contract to retain qualified employees by seniority within the job classification. The existing contractor is required to provide prescribed information regarding employment under the existing service contract to the awarding authority, any entity that the awarding authority identifies as a bona fide bidder, and the successor contractor. Existing law authorizes an employee who was not offered employment or who has been discharged in violation of existing law, or his or her agent, to bring an action against the successor contractor or subcontractor in any superior court having jurisdiction over the successor contractor or subcontractor. Existing law authorizes an awarding authority to terminate a service contract under prescribed circumstances.

 

This bill would expand the application of these provisions to exclusive contracts for the collection and transportation of solid waste. The bill would require the information provided to a bona fide bidder to be made available in writing at least 30 days before bids for the service contract are due. The bill would establish certain provisions applicable only to service contracts for the collection and transportation of solid waste, including limits on the requirement to retain employees and specified requirements for notice and opportunity to cure in the context of civil action or termination. The bill would not apply to contracts awarded before January 1, 2017, or to contracts for which the bid process has been completed before January 1, 2017. By requiring local agencies to give a bidding preference under these provisions to those contractors and subcontractors for the collection and transportation of solid waste, this bill would impose a state-mandated local program.

 

• AB 1682 by Assemblymember Mark Stone (D-Scotts Valley) – Settlement agreements: sexual offenses

 

Existing law prohibits a confidential settlement agreement in a civil action with a factual foundation establishing a cause of action for civil damages for an act that may be prosecuted as a felony sex offense. Existing law provides that the prohibition does not affect the ability of parties to enter into a settlement agreement or stipulated agreement requiring nondisclosure of the amount of money paid in settlement of a claim.

 

This bill would instead prohibit a provision in a settlement agreement that prevents the disclosure of factual information related to the action in a civil action with a factual foundation establishing a cause of action for civil damages for an act that may be prosecuted as a felony sex offense and would additionally make these provisions applicable to a cause of action for civil damages for an act of childhood sexual abuse or sexual exploitation of a minor or an act of sexual assault against an elder or dependent adult, as specified. The bill would prohibit a court from entering an order in any of these types of civil actions that restricts disclosure of this information, as specified. The bill would repeal the provision specifying that a settlement agreement or stipulated agreement that requires nondisclosure of the amount of money paid in settlement of a claim is not prohibited. The bill would make a provision in a settlement agreement that prevents the disclosure of factual information related to the action, as described in the bill, entered into on or after January 1, 2017, void as a matter of law and against public policy. The bill would provide that an attorney’s failure to comply with these provisions by demanding that a provision be included in a settlement agreement that prevents the disclosure of factual information related to the action, as specified, as a condition of settlement or advising a client to sign an agreement that includes such a provision may be grounds for professional discipline and would require the State Bar of California to investigate and take appropriate action in cases brought to its attention.

 

• AB 2393 by Assemblymember Nora Campos (D-San Jose) – School employees: sick leave: parental leave

 

Under existing law, when a person employed in a position requiring certification qualifications exhausts all available sick leave, as specified, and continues to be absent from his or her duties on account of illness or accident for an additional period of up to 5 school months, he or she, during that additional period, receives the difference between his or her salary and the sum that is actually paid a substitute employee employed to fill his or her position during his or her absence or, if no substitute employee was employed, the amount that would have been paid to the substitute had he or she been employed. Existing law also provides the differential pay benefit described above for up to 12 school weeks if the person employed in a position requiring certification qualifications is absent on account of maternity or paternity leave. Existing law provides that the 12-week period shall be reduced by any period of sick leave, including accumulated sick leave, taken during a period of maternity or paternity leave. Existing law prohibits a person employed in a position requiring certification qualifications on maternity or paternity leave pursuant to the Moore-Brown-Roberti Family Rights Act from being denied access to differential pay while on that leave.

 

This bill would additionally provide that if a school district maintains a rule that credits a person employed in a position requiring certification qualifications at least 100 working days of sick leave paid at no less than 50% of his or her regular salary, when he or she has exhausted all available sick leave, including all accumulated sick leave, and continues to be absent from his or her duties on account of parental leave, the person employed in a position requiring certification qualifications would be compensated at no less than 50% of his or her regular salary for the remaining portion of the 12-workweek period of parental leave. The bill would no longer require a person employed in a position requiring certification qualifications to have 1,250 hours of service with the employer during the previous 12-month period, as required by the Moore-Brown-Roberti Family Rights Act, in order to take parental leave pursuant to these provisions. The bill would require that parental leave taken pursuant to these provisions run concurrently with parental leave taken pursuant to the act, and that the aggregate amount of parental leave taken pursuant to either these provisions or under the act not exceed 12 workweeks in a 12-month period.

Under existing law, when a classified school employee in certain school districts and community college districts exhausts all available sick leave, as specified, and continues to be absent from his or her duties on account of illness or accident for an additional period of up to 5 school months, the employee during that additional period receives the difference between his or her salary and the sum that is actually paid a substitute employee employed to fill his or her position during his or her absence. Under existing law, when a classified school employee in certain other school districts and community college districts exhausts all available sick leave, as specified, and continues to be absent from his or her duties on account of illness or accident for an additional period of up to 5 school months, the employee during that additional period receives at least 50% of the employee’s regular salary.

 

This bill would additionally provide the differential pay benefits described above for up to 12 workweeks if the classified school employee is absent on account of parental leave, as defined. The bill would provide that the 12-workweek period shall be reduced by any period of sick leave, including accumulated sick leave, taken during a period of parental leave. The bill would no longer require a classified employee to have 1,250 hours of service with the employer during the previous 12-month period, as required by the Moore-Brown-Roberti Family Rights Act, in order to take parental leave pursuant to these provisions. The bill would require that parental leave taken pursuant to these provisions run concurrently with parental leave taken pursuant to the act, and that the aggregate amount of parental leave taken pursuant to either these provisions or under the act not exceed 12 workweeks in a 12-month period.

 

Under existing law, when a person employed in an academic position in a community college district exhausts all available sick leave, as specified, and continues to be absent from his or her duties on account of illness or accident for an additional period of up to 5 school months, the person employed in an academic position during that additional period receives the difference between his or her salary and the sum that is actually paid a temporary employee employed to fill his or her position during his or her absence or, if no temporary employee was employed, the amount that would have been paid to the temporary employee had he or she been employed.

 

This bill would additionally provide the differential pay benefit described above for up to 12 workweeks if the person employed in an academic position is absent on account of parental leave, as defined, as specified. The bill would provide that the 12-workweek period shall be reduced by any period of sick leave, including accumulated sick leave, taken during a period of parental leave. The bill would additionally provide that if a community college district maintains a rule that credits a person employed in an academic position at least 100 working days of sick leave paid at no less than 50% of the employee’s regular salary, when an employee has exhausted all available sick leave, including all accumulated sick leave, and continues to be absent from his or her duties on account of parental leave, the employee would be compensated at no less than 50% of the employee’s regular salary for the remaining portion of the 12-workweek period of parental leave. The bill would no longer require a person employed in an academic position to have 1,250 hours of service with the employer during the previous 12-month period, as required by the Moore-Brown-Roberti Family Rights Act, in order to take parental leave pursuant to these provisions. The bill would require that parental leave taken pursuant to these provisions run concurrently with parental leave taken pursuant to the act, and that the aggregate amount of parental leave taken pursuant to either these provisions or under the act not exceed 12 workweeks in a 12-month period.

 

• SB 1146 by Senator Ricardo Lara (D-Bell Gardens) – Discrimination: postsecondary education

 

The Equity in Higher Education Act, among other things, prohibits a person from being subjected to discrimination on the basis of specified attributes, including sex, in any program or activity conducted by a postsecondary educational institution that receives, or benefits from, state financial assistance or enrolls students who receive state student financial aid. Existing federal law, known as Title IX of the Education Amendments of 1972, prohibits a person, on the basis of sex, from being excluded from participation in, being denied the benefits of, or being subject to discrimination under, any education program or activity receiving federal financial assistance. Both the federal and state laws do not apply to an educational institution that is controlled by a religious organization if the application would not be consistent with the religious tenets of that organization. Title IX provides a private right of action for violation of its provisions by a public postsecondary educational institution.

 

This bill would require an institution that has an exemption from either the Equity in Higher Education Act or Title IX to make specified disclosures to the institution’s current and prospective students, faculty members, and employees, and to the Student Aid Commission, concerning the institution’s basis for having the exemption. The bill would require the commission to collect the information it receives and post and maintain a list on the commission’s Internet Web site of all institutions with the exemption and their respective bases for having the exemption.

 

• SB 1379 by Senator Tony Mendoza (D-Artesia) – Community colleges: part-time, temporary employees

 

Existing law establishes the California Community Colleges under the administration of the Board of Governors of the California Community Colleges. Existing law authorizes the establishment of community college districts under the administration of community college governing boards, and authorizes these districts to provide instruction at community college campuses throughout the state. Existing law requires that a person employed to teach adult or community college classes for not more than 67% of the hours per week of a full-time employee having comparable duties, excluding substitute service, be classified as a temporary employee and not a contract employee.

 

A.B. 1690 of the 2015–16 Regular Session would require community college districts without a collective bargaining agreement with part-time, temporary faculty in effect as of January 1, 2017, to, on or after January 1, 2017, commence negotiations with the exclusive representatives for part-time, temporary faculty regarding certain terms and conditions.

 

This bill would instead, among other things, require that minimum standards be established for the terms of reemployment preference for part-time, temporary faculty assignments, extend the time frame for compliance to July 1, 2017, and make compliance with the provisions a condition of receiving funds allocated for the Student Success and Support Program in the annual Budget Act.

 

• SB 1406 by Senator Tony Mendoza (D-Artesia) – Construction-related accessibility: education entities

 

Existing law provides that individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other public places. Existing law requires an attorney who provides a demand letter or sends or serves a complaint containing a claim of a violation of any construction-related accessibility standard, as defined, with respect to a place of public accommodation, to send a copy of the demand letter or complaint to the California Commission on Disability Access within 5 business days of providing the demand letter or sending or serving the complaint. Existing law further requires an attorney who sends or serves that complaint to notify the commission of judgment, settlement, or dismissal of the claim or claims alleged in the complaint and other specified information within 5 business days of the judgment, settlement, or dismissal.

 

This bill, with specified exceptions, would also require an attorney who provides a prelitigation letter or sends or serves a complaint alleging a construction-related accessibility claim, as defined, against an education entity, as defined, to send a copy of the prelitigation letter or complaint to the commission within 5 business days of providing the prelitigation letter or sending or serving the complaint, would require the attorney to also submit information about the complaint with the copy of the complaint, and would further require the attorney to submit the notification of judgment, settlement, or dismissal to the commission, as described above. The bill would subject an attorney who fails to comply with these requirements to discipline and would require the commission to review and report on the prelitigation letters, complaints, and notifications of case outcomes the commission receives pursuant to these requirements, as specified.

 

Further Bills Vetoed by Governor (9/30/16)

 

• AB 840 by Assemblymember Sebastian Ridley-Thomas (D-Los Angeles) – Nurses and certified nursing assistants: overtime. A veto message can be found here

 

• AB 2069 by Assemblymember Jose Medina (D-Riverside) – Part-time faculty office hours. A veto message can be found here

 

• AB 2493 by Assemblymember Toni G. Atkins (D-San Diego) – Firefighters: disability. A veto message can be found here

 

• AB 2826 by Assemblymember Shirley N. Weber (D-San Diego) – Teachers: evaluation and assessment. A veto message can be found here

 

• SB 654 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practice: parental leave. A veto message can be found here

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• SB 654 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practice: parental leave. A veto message can be found here

 

• SB 1439 by Senator Marty Block (D-San Diego) – Postsecondary education: academic and administrative employees: disclosure of sexual harassment. A veto message can be found here

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