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Gutierrez v. Brand Energy Services of Calif. (CA1/3 A154604M mod., rehg. den. 7/2/20) Pre-Shift Employer-Mandated Travel Time/CBA

 

THE COURT:

It is ordered that the opinion filed herein on June 16, 2020, be modified as follows:  On page 2, the first sentence of the first paragraph of the factual and procedural background section, “Plaintiff was a journeyman scaffold worker at gasoline refineries owned and operated by Brand between 2010 and November 2015,” is changed to “Plaintiff was a journeyman scaffold worker employed by Brand between 2010 and November 2015.”

 

There is no change in the judgment.

 

Respondent’s petition for rehearing is denied.

 

https://www.courts.ca.gov/opinions/documents/A154604M.PDF

 

David v. Queen of the Valley Medical Center (CA1/5 A157336, filed 6/8/20, pub. ord. 6/30/20) Meal and Rest Periods/Time Rounding

 

In this wage and hour litigation, plaintiff Joana David (plaintiff) appeals from a judgment entered after the trial court granted her former employer, Queen of the Valley Medical Center’s (QVMC or hospital) motion for summary judgment.  Plaintiff contends the trial court “ignored” her evidence and violated California law by adjudicating her meal and rest period claims, and her time-rounding claim, in favor of QVMC.

           

We disagree and affirm.

 

https://www.courts.ca.gov/opinions/documents/A157336.PDF

 

Oman v. Delta Air Lines, Inc. (SC S248726 6/29/20) Wage and Hour/Flight Attendants

 

In this case, as in the companion cases Ward v. United Airlines, Inc., and Vidrio v. United Airlines, Inc. (June 29, 2020, S248702) ___ Cal.5th ___ (Ward), we confront a question about the application of various California wage and hour laws to flight attendants who work primarily outside California’s territorial jurisdiction.  Consistent with our holding in those cases, we conclude that California’s wage statement laws apply only to flight attendants who have their base of work operations in California, and that the same is true of California laws governing the timing of wage payments.  Finally, we hold that, whether or not California’s minimum wage laws apply to work performed on the ground during the flight attendants’ brief and episodic stops in California, the pay scheme challenged here complies with the state requirement that employers pay their employees at least the minimum wage for all hours worked.

 

https://www.courts.ca.gov/opinions/documents/S248726.PDF

 

Ward v. United Airlines, Inc. (SC S248702 6/29/20) Wage and Hour Laws/Pilots and Flight Attendants

 

From the air, the borders that divide state from state disappear.  But in our federalist system, those borders still matter—even for those who make their living flying the friendly skies.  In these consolidated cases and Oman v. Delta Air Lines, Inc. (June 29, 2020, S248726) ___ Cal.5th ___, we confront questions about how the laws of a single state might apply to employees who perform duties across the country, on behalf of an employer in the business of connecting the world.

 

Plaintiffs are pilots and flight attendants for a global airline based outside California.  Plaintiffs reside in California but perform most of their work in airspace outside California’s jurisdiction.  They are not paid according to California wage law, but instead according to the terms of a collective bargaining agreement entered under federal law.  The United States Court of Appeals for the Ninth Circuit has asked us to decide whether, given these circumstances, the airline is required to provide plaintiffs with wage statements that meet the various requirements of California law.

 

We conclude that whether plaintiffs are entitled to California-compliant wage statements depends on whether their principal place of work is in California.  For pilots, flight attendants, and other interstate transportation workers who do not perform a majority of their work in any one state, this test is satisfied when California serves as their base of work operations, regardless of their place of residence or whether a collective bargaining agreement governs their pay.

 

https://www.courts.ca.gov/opinions/documents/S248702.PDF

Doe v. The Regents of the Univ. of Cal. (CA2/6 B293153, filed 6/5/20, pub. ord. 6/29/20) Title IX/Attorneys’ Fees

 

John Doe (Doe) was admitted as a freshman student to the University of California at Santa Barbara (UCSB).  Before he even arrived in Santa Barbara, UCSB placed him on interim suspension pending its investigation into an allegation of dating-relationship violence.  UCSB then delayed completion of the investigation, in violation of its own written policies. 

           

Doe brought this action against the Regents of the University of California (Regents).  The superior court preliminarily enjoined the interim suspension pending completion of the administrative proceedings.  Ultimately, Doe was exonerated in the administrative proceedings.  Over his objection, the superior court then dismissed his action as moot.  The court denied Doe’s motion for attorney’s fees under Code of Civil Procedure section 1021.5, reasoning that he had failed to show the litigation conferred “a significant benefit . . . on the general public or a large class of persons.”  (Code Civ. Proc., § 1021.5.) 

           

Doe appeals from the judgment of dismissal and the postjudgment order denying his motion for attorney’s fees.  We affirm the order of dismissal.  We conclude Doe satisfied the criteria for an award of fees under section 1021.5.  We reverse the denial of the fee motion and remand for a determination of the amount to be awarded. 

 

https://www.courts.ca.gov/opinions/documents/B293153.PDF

 

Barriga v. 99 Cents Only Stores LLC (CA4/2 E069288 6/26/20) Wage and Hour/Class Certification

 

Plaintiff Sofia Wilton Barriga filed this lawsuit against 99 Cents Only Stores LLC, (99 Cents) on her own behalf and on behalf of similarly situated current and former nonexempt employees of 99 Cents hired before October 1, 1999, and who worked the graveyard shift after January 1, 2012, until the conclusion of her lawsuit, pleading various Labor Code violations and violation of the unfair competition law.  (Bus. & Prof. Code, § 17200 et seq.)  Plaintiff alleged 99 Cents has a zero-tolerance policy that requires its stores to lock their doors at closing time, therefore, forcing nonexempt, nonmanagerial employees, who work the graveyard shift and clock out for their meal break or at the end of their shift, to wait for as long as 15 minutes for a manager with a key to let them out of the store.  According to plaintiff, 99 Cents does not pay its employees for the time they have to wait be let out of the store, and its zero-tolerance policy denies employees their full half-hour meal break.  In addition, plaintiff alleges 99 Cents does not promptly pay employees the wages they are owed upon termination or resignation and does not provide employees with accurate wage statements.

 

Plaintiff moved the trial court to certify two classes:  (1) “Off the Clock Class,” consisting of employees who were locked in the store and not paid for the time they waited, and (2) “Meal Period Class,” comprised of employees who were denied full meal breaks because they were locked in.  Thereafter, 99 Cents opposed plaintiff’s motion to certify the proposed classes, contending there is no community of interests among putative class members, and the lack of common issues among putative class members will render a class action unmanageable.  In support of its opposition, 99 Cents submitted 174 declarations from current and former nonexempt employees to establish, inter alia, that its closed-door policy was often observed in the breach, meaning graveyard shift employees could leave the store immediately without waiting to be let out, and those employees who did have to wait were let out promptly and paid for the time they waited.  Only 53 of the declarants were members of the proposed classes.  All 174 declarations included an identical or nearly identical paragraph stating the declarants knew their declarations could be used by 99 Cents to defend itself against a class action lawsuit about its wage policies and practices, and an identical or nearly identical paragraph purporting to state the declarants had not been coerced into signing their declaration and understood what they were signing.

 

Plaintiff deposed 12 of the employee declarants who were members of the proposed classes.  Most of the deponents clearly testified they understood what they were signing, and they did so freely and without coercion or promise of promotion or a pay raise.  However, some of the deponents testified they had no idea what the lawsuit was about or even why they had been called upon to testify.  And, most of the deponents testified they had been summoned, during working hours, to an office, by a representative from human resources, and presented with a declaration for their signature.

 

Plaintiff moved to strike all 174 declarations on the grounds the process by which they had been obtained was improper, and because they were substantively inconsistent with the subsequent deposition testimony of 12 of the declarants.  Concluding it lacked the statutory authority to strike the declarations, the trial court denied plaintiff’s motion to strike.  In the alternative, the court concluded there was no coercion to justify striking the declarations from putative class members, and it lacked the authority to review for coercion let alone strike any of the declarations from nonputative class members.  And, based on all 174 declarations, the court concluded plaintiff had not demonstrated a community of interests or a commonality of issues among putative class members.  Therefore, the court denied plaintiff’s class certification motion.  Plaintiff appeals those orders.  

 

Adopting the standards articulated in Gulf Oil Co. v. Bernard (1981) 452 U.S. 89 (Gulf Oil), California courts have recognized the trial court has both the duty and the authority to exercise control over precertification communications between the parties and putative class members to ensure fairness in class actions.  Moreover, the lower federal courts have consistently held that an ongoing business relationship between the class opponent and putative class members—especially a current employer-employee relationship—is rife for abuse and coercion.  Therefore, those courts have cautioned that statements obtained by the class opponent from its employees, to oppose a class certification motion, must be carefully scrutinized for actual or threatened abuse.  And, if the trial court concludes the statements were obtained under coercive or potentially abusive circumstances, it has discretion to either strike those statements entirely or discount the evidentiary weight to be given to them.  In addition, some lower federal courts have concluded the trial court’s duty and authority to protect the integrity and fairness of actions extends to communications with a defendant’s employees who are not currently or potentially members of the class.

 

The record demonstrates the trial court in this case was unaware of the need to scrutinize 99 Cents’ declarations carefully and was either unaware of or misunderstood the scope of its discretion to either strike or discount the weight to be given the 174 declarations, including the declarations of employees who were not members of the putative classes, if it concluded they were obtained under coercive or abusive circumstances.  Therefore, we reverse the orders denying plaintiff’s motion to strike 99 Cents’ declarations and class certification motion, and we remand for the trial court to reconsider them.

 

https://www.courts.ca.gov/opinions/documents/E069288.PDF

 

County of Fresno v. Fresno Deputy Sheriff's Assn. (CA5 F076417, filed 5/29/20, pub. ord. 6/26/20) Meyers-Milias-Brown Act/MOU

 

Two sheriff’s deputies, through their employee organization, filed a grievance challenging their involuntary reassignment from their specialty assignments to patrol assignments.  They asserted the reassignments violated both the Memorandum of Understanding (MOU) between the County of Fresno (the county) and the employee organization, and an established past practice that deputies would not be involuntarily reassigned in the absence of disciplinary issues, documented performance issues, layoffs, or pending disability retirement.  The administrative hearing of the grievance resulted in a decision in favor of the deputies.  The county filed a petition for a writ of mandate to reverse the decision, and the trial court granted the petition.  The employee organization and the deputies appeal.  We conclude the arbitrator who heard the matter abused his discretion because his findings were not supported by substantial evidence.  Accordingly, we affirm the judgment of the trial court.

 

https://www.courts.ca.gov/opinions/documents/F076417.PDF

 

Regents of the University of Cal. v. Pub. Employment Relations Bd. (CA1/1 A157597 6/25/20) Collective Bargaining Unit Modification/PERB/UPTE/HEERA

 

University Professional and Technical Employees, CWA Local 9119 (UPTE) filed a petition for unit modification with the Public Employment Relations Board (PERB) to add a newly created classification, systems administrators I, II, and III, into a preexisting bargaining unit.  PERB granted the petition, and the Regents of the University of California (University) refused to bargain over the terms and conditions of employment for systems administrators.  UPTE then filed an unfair practice charge against the University, which also was granted by PERB. 

           

The University subsequently filed a petition for writ of extraordinary relief.  In its petition, the University argued the systems administrator classification did not share a community of interest with the existing bargaining unit as required under the Higher Education Employer-Employee Relations Act (HEERA; Gov. Code, § 3560 et seq.).  The University further asserted PERB erred in not requiring proof of majority support by the unrepresented systems administrators subject to the unit modification petition.  We disagree and deny the petition.

 

https://www.courts.ca.gov/opinions/documents/A157597.PDF

Golf Offshore Logistics v. Superior Court (Norris) (SC S261881/B298318 review granted 6/24/20) Wage and Hour/Non-Resident Employees of Out-of-State Employers

 

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.

 

Docket

Court of Appeal Decision

 

Oliver v. Konica Minolta Business Solutions U.S.A., Inc. (CA6 H045069 6/24/20) Wage and Hour/Commute Time

 

In this wage and hour class action, plaintiffs Michael Oliver and Norris Cagonot represented a class of service technicians (collectively, plaintiffs) who were employed by defendant Konica Minolta Business Solutions U.S.A., Inc.  Service technicians were required to drive their personal vehicles, which contained defendant’s tools and parts, to customer sites to make repairs to copiers and other machines.  Service technicians did not report to an office for work.  Instead, service technicians usually drove from home to the first customer location of the day and, at the end of the day, from the last customer location to home.

 

Relevant here, plaintiffs in the class action sought wages for (1) time spent commuting to the first work location of the day and commuting home from the last work location and (2) reimbursement for mileage incurred during those commutes.  The parties filed cross-motions for summary adjudication on the two issues.  The trial court determined that plaintiffs’ commute time was not compensable as “hours worked” under Industrial Welfare Commission wage order No. 4-2001 (Wage Order No. 4; see Cal. Code Regs., tit. 8, § 11040, subd. 4(B)).  Wage Order No. 4 defines hours worked as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.”  (Cal. Code Regs., tit. 8, § 11040, subd. 2(K).)  The court further determined that plaintiffs were not entitled to reimbursement for commute mileage under Labor Code section 2802, which requires an employer to indemnify an employee “for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties.”  On appeal, plaintiffs contend that the trial court erred in granting defendant’s summary adjudication motion.

 

In determining whether the trial court properly found in favor of defendant on the issue of compensability of commute time, we are guided as an intermediate court by the legal principles set forth by the California Supreme Court in Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575 (Morillion).  (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity).)  In Morillion, employees were required to travel to the worksite in employer-paid buses.  (Morillion, supra, at p. 579.)  The California Supreme Court indicated that commute time to and from work is generally not compensable.  (Id. at p. 587.)  Further, if the employer provides “optional free transportation” to employees, the employer is not obligated to compensate employees for commute time.  (Id. at p. 594; see id. at p. 588.)  On the other hand, “compulsory travel time” is compensable.  (Id. at p. 587.)  The court explained that the “level of the employer’s control over its employees . . . is determinative.”  (Ibid.)  While commuting, employees must be able “to use ‘the time effectively for [their] own purposes.’ ”  (Id. at p. 586.)  Because the employees in Morillion “were foreclosed from numerous activities in which they might otherwise engage if they were permitted to travel to the [worksite] by their own transportation” (id. at p. 586), the court determined that they were “ ‘subject to the control’ ” of the employer and entitled to wages for the time travelling on the buses to the worksite (id. at p. 578).

           

Here, we determine that if carrying tools and parts in a service technician’s personal vehicle during the commute was optional, then the service technician was not “subject to the control of [defendant]” for purposes of determining whether that time constituted “hours worked.”  (Cal. Code Regs., tit. 8, § 11040, subds. 2(K), 4(B); see Morillion, supra, 22 Cal.4th at p. 594.)  Further, even if a service technician was required—“strictly speaking” or “as a practical matter”—to carry tools and parts during the commute, the service technician would not be “subject to the control of [defendant]” during the commute if the service technician was able “to use ‘the time effectively for [the service technician’s] own purposes.’ ”  (Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, 1054 (Frlekin); Cal. Code Regs., tit. 8, § 11040, subd. 2(K); Morillion, supra, at p. 586.)  On the other hand, if a service technician was required during the commute to carry a volume of tools and parts that did “not allow [the service technician] to use ‘the time effectively for [the service technician’s] own purposes,” then the technician would be “subject to the control of [defendant]” for purposes of determining “hours worked” and entitlement to wages.  (Morillion, supra, at p. 586; Cal. Code Regs., tit. 8, § 11040, subds. 2(K) & 4(B).)

           

Based on the record in this case, we determine that there are triable issues of material fact regarding (1) whether service technicians were subject to defendant’s control during their commute such that their commute time constituted “hours worked” for which wages must be paid, and (2) whether service technicians were entitled to reimbursement for commute mileage.  (Cal. Code Regs., tit. 8, § 11040, subd. 4(B); see id., § 11040, subd. (2)(K); § 2802.)  We will therefore reverse the judgment that was entered in defendant’s favor.

 

https://www.courts.ca.gov/opinions/documents/H045069.PDF

 

IMDB.COM v. SAG-AFTRA (9th Cir. 18-15463 6/19/20) AB 1687 Actors’ Online Profile/Age Discrimination/First Amendment

 

The panel affirmed the district court’s grant of summary judgment in favor of plaintiff in an action challenging enacted Assembly Bill 1687, which prohibits a specified category of websites from publishing the ages and dates of birth of entertainment industry professionals.

 

The panel first determined that Assembly Bill 1687 (“AB 1687”) appeared to target a single entity: the Internet Movie Database, IMDb, Inc. IMDb operates a free, publicly available website, IMDb.com, that offers a comprehensive database of information about movies, television shows, and video games. Similar to Wikipedia, anyone with an internet connection and a user account may update and provide information for the site, subject to review by IMDb. IMDb also operates a subscription-based service for industry professionals, known as IMDbPro. AB 1687 requires that a subscription-based service like IMDbPro, upon a subscriber’s request, must (1) remove the subscriber’s age or date of birth from that subscriber’s paid-for profile; and must also (2) remove from public view in an online profile of the subscriber, the subscriber’s date of birth and age information on any companion Internet Web sites under its control.

 

Focusing its analysis on the statute’s provision pertaining to companion websites, such as IMDb.com, the panel held that AB 1687 prohibits the publication of specific content by specific speakers. It was therefore a content-based restriction on speech that was subject to strict scrutiny. The panel rejected defendants’ argument that the statute merely regulated contractual obligations between IMDb and subscribers to IMDbPro. The panel held that the statute reaches far beyond the terms of any subscriber agreement. It applies not only to paid-for profiles—like those on IMDbPro—but also to entries on the publicly available, nonsubscription site IMDb.com. It therefore prohibited the publication of information submitted by members of the public with no connection to IMDb.

 

The panel further rejected the contention that strict scrutiny did not apply because the speech implicated by AB 1687 fell into one of three categories of speech entitled only to reduced protection: (1) commercial speech; (2) illegal speech; and (3) speech implicating private matters.

 

The panel held that the content found in profiles on IMDb’s public website did not meet the standard for commercial speech because the profiles on IMDb.com do not propose a commercial transaction. The panel further held that the speech did not facilitate illegal conduct, and finally the panel held that neither this court, nor the Supreme Court, has held that content-based restrictions on public speech touching on private issues escape strict scrutiny.

 

The panel held that AB 1687 did not survive strict scrutiny. Although the panel agreed with the district court that reducing incidents of age discrimination is a compelling government interest, the panel held that the statute was neither the least restrictive means to accomplish that goal, nor narrowly tailored. The panel determined that the State had not explored, or even considered, a less restrictive means to combat age discrimination in the entertainment industry before resorting to the drastic step of restricting speech. The panel further found that AB 1687 was underinclusive because it failed to reach several potential sources of age information and protected only industry professionals who subscribe to IMDbPro, and who ask for their age information to be removed from the public website, IMDb.com.

 

The panel held that the district court did not abuse its discretion in denying the parties’ discovery requests, stating that it failed to see how any of the proposed requests would affect the panel’s conclusion on the merits.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/19/18-15463.pdf

 

Olabi v. Neutron Holdings, Inc. (CA1/5 A156990 6/19/20) PAGA/Arbitration

 

Yassin Olabi sued Neutron Holdings, Inc. (doing business as Lime) for Labor Code violations under the Private Attorneys General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.) and for unfair competition (Bus. & Prof. Code, § 17200 et seq.).  Lime filed a petition to compel arbitration.  Prior to the hearing, Olabi dismissed the unfair competition claim.  The trial court denied the petition.  Because the language of the arbitration agreement broadly excludes PAGA actions, we affirm.

 

https://www.courts.ca.gov/opinions/documents/A156990.PDF

Martinez v. San Diego County Credit Union (CA4/1 D075360 6/19/20) ADA/Web Sites

 

Abelardo Martinez, who is blind, brought an action against San Diego County Credit Union (Credit Union) claiming its website is incompatible with software permitting him to read website content.  He alleged this defect denied him equal access to, and full enjoyment of, the Credit Union's website and its physical locations.  Martinez asserted a single cause of action under the Unruh Civil Rights Act based on two alternate theories:  (1) Credit Union's website violates the American Disabilities Act (ADA); and (2) Credit Union's actions constitute intentional discrimination prohibited by the Unruh Civil Rights Act.  (See Civ. Code, § 51 et seq.; 42 U.S.C., § 12101 et seq.)

           

On the day scheduled for jury selection, the court dismissed the action on its own motion based on its understanding Martinez was intending to pursue only the ADA theory, and the court's finding Martinez had not sufficiently alleged Credit Union's website constitutes a "public accommodation" within the meaning of the ADA.  (§ 12182(a).)  Although the court characterized its ruling as a nonsuit, the parties agree it was a conclusion based solely on Martinez's pleadings.

           

Martinez appeals.  We determine the court erred in dismissing the action at the pleadings stage based on the ADA's public-accommodation element.  Although the courts have not yet articulated a single clear standard on this issue, most of the federal circuits and one California Court of Appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity's website if there is a sufficient nexus between the claimed barriers and the plaintiff's ability to use or enjoy the goods and services offered at the defendant's physical facilities.  Under this standard, we conclude Martinez has alleged a sufficient nexus to state an ADA violation.  We thus do not reach the broader issue whether a website constitutes a public accommodation governed by the ADA even without a nexus to the defendant's physical location. 

           

We reject Credit Union's alternate argument that the dismissal was proper because the United States Congress has not enacted specific website accessibility standards.  Even without these standards, the courts have the authority to interpret applicable ADA provisions and apply them to website accessibility issues.  We also find unavailing Credit Union's challenges to potential remedies for alleged defects on its website.  These challenges are based on facts outside the appellate record and are premature at the pleading stage.

 

https://www.courts.ca.gov/opinions/documents/D075360.PDF

 

Zweizig v. Rote (9th Cir. 18-36060 6/16/20) Employment Discrimination Non-Economic Damages/Oregon

 

Certification to Oregon Supreme Court The panel certified to the Oregon Supreme Court the following question: Does Oregon Revised Statutes § 31.710(1) cap the noneconomic damages awarded on an employment discrimination claim under Oregon Revised Statutes § 659A.030?

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/06/16/18-36060.pdf

 

Gutierrez v. Brand Energy Services of Calif. (CA1/3 A154604 6/16/20) Pre-Shift Employer-Mandated Travel Time/CBA

 

This is an appeal from final judgment entered against plaintiff Carlos Gutierrez after the trial court granted the motion for summary judgment filed by defendant Brand Energy Services of California, Inc. (Brand).  Plaintiff, a former Brand employee, sued Brand for nonpayment of his pre-shift employer-mandated travel time in violation of several Labor Code and Business and Professions Code provisions.  Plaintiff brought this lawsuit on his own behalf and on behalf of a proposed class of similarly situated persons.

 

In granting summary judgment for Brand prior to class certification, the trial court found a complete defense existed with respect to each of plaintiff’s causes of action under California Industrial Welfare Commission Wage Order No. 16‑2001, section 5(D) (Cal. Code Regs., tit. 8, § 11160(5)(D)).  According to the trial court, this provision permitted union-represented employees and their employers to enter into collective bargaining agreements (CBA’s) that waived the right to all compensation for employer-mandated travel time.  The trial court further found that the applicable CBA’s in this case, as amended by a June 2017 letter of understanding (LOU), confirmed a bargained-for practice wherein Brand compensated its employees for post-shift mandatory travel time but not pre-shift mandatory travel time.  The trial court thus entered judgment for Brand.

 

On appeal, plaintiff contends the trial court’s order was based on an erroneous interpretation of the applicable wage order.  For reasons that follow, we agree with plaintiff and therefore reverse the judgment and remand for further proceedings.

 

https://www.courts.ca.gov/opinions/documents/A154604.PDF

Bostock v. Clayton County, Georgia (US 17–1618 6/15/20) Title VII/LGBTQ

 

In each of these cases, an employer allegedly fired a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fired Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bostock’s suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed.

 

Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33.

 

(a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The straightforward application of Title VII’s terms interpreted in accord with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.

 

(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360, which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at 1267. Pp. 4–9.

 

(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.

 

(b) Three leading precedents confirm what the statute’s plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex.

 

The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 12–15.

 

(c) The employers do not dispute that they fired their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court’s precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 15–33.

 

(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. But conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Congress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 16–23.

 

(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII’s terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 23–33.

 

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.

 

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

 

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

AIDS Healthcare Foundation v. City of Los Angeles (CA2/3 B303308 6/15/20) Fair Housing/Disparate Impact

 

This appeal concerns four separate multi-use development projects within a one-mile radius along Sunset Boulevard in Hollywood.  After filing unsuccessful petitions for writ of mandate challenging the approval of two of the projects under various land use laws, appellant AIDS Healthcare Foundation (AHF) sued the City of Los Angeles and the Los Angeles City Council (collectively, City) for violating the federal Fair Housing Act (the FHA) and the state Fair Employment and Housing Act (FEHA) based on a disparate-impact theory of liability.  AHF now alleges the City’s approval of the four “upscale” developments will cause housing prices in the area to rise and disproportionately displace Black and Latino residents who no longer will be able to afford to live there.

 

The City and Real Parties in Interest—the projects’ owners and developers—separately demurred to AHF’s complaint.  The trial court sustained the demurrers without leave to amend after finding AHF failed to state a cause of action for violation of the FHA or FEHA, the statute of limitations barred the complaint as to three of the projects, and the doctrine of res judicata and prohibition against basing two lawsuits on a single cause of action precluded the action.

We conclude the trial court correctly found AHF cannot assert a cause of action under the FHA and FEHA based on its alleged disparate-impact theory of liability and affirm the judgment on that basis alone.

 

https://www.courts.ca.gov/opinions/documents/B303308.PDF

Order Instituting Rulemaking on Regulations Relating to Passenger Carriers, Ridesharing, and New Online-Enabled Transportation Services (California Public Utilities Commission, Rulemaking 12-12-011. 6/9/20) Uber and Lyft Drivers/Employee Status

 

Thus, for now, TNC [Transportation Network Companies] drivers are presumed to be employees and the Commission must ensure that TNCs comply with those requirements that are applicable to the employees of an entity subject to the Commission’s jurisdiction.  (Order, p. 5.)

 

https://docs.cpuc.ca.gov/PublishedDocs/Efile/G000/M339/K545/339545137.PDF

 

Bethany College and Thomas Jorsch and Lisa Guinn (NLRB 369 NLRB No. 98 6/10/20) Exemption/Religious Educational Institution

 

The threshold and dispositive issue in this case is whether the Board can exercise jurisdiction over the faculty of the Respondent, a self-identified religious institution of higher education. Applying Pacific Lutheran University, 361 NLRB 1404 (2014), the judge answered that jurisdictional question in the affirmative. With the case now before us on exceptions, the General Counsel has changed position and urges us to reverse the judge and dismiss the complaint by overruling Pacific Lutheran in relevant part and adopting the jurisdictional test announced by the United States Court of Appeals for the District of Columbia Circuit in University of Great Falls v. NLRB, 278 F.3d 1335 (D.C. Cir. 2002).

 

We agree with the General Counsel. It is clear to us that the Great Falls decision correctly interpreted the Supreme Court’s holding in NLRB v. Catholic Bishop of Chicago and properly concluded that the exercise of Board jurisdiction over religious schools in matters involving faculty members will inevitably involve inquiry into the religious tenets of these institutions. We agree that such inquiry would impermissibly present a significant risk that the protections set forth in the Religion Clauses of the First Amendment of the Constitution would be infringed. We also agree with the D.C. Circuit that the Board’s Pacific Lutheran test fails to avoid that risk. Duquesne University of the Holy Spirit v. NLRB, 947 F.3d 824 (D.C. Cir. 2020), petition for en banc consideration filed No. 18-1063 (D.C. Cir. Feb. 25, 2020).

 

Accordingly, we have decided to overrule Pacific Lutheran in relevant part and to adopt the D.C. Circuit’s three-pronged standard announced in Great Falls. Specifically, in determining whether to assert jurisdiction over the faculty of an educational institution claiming exemption under the principles set forth in Catholic Bishop, we will inquire only whether the institution (a) holds itself out to the public as a religious institution, (b) is nonprofit, and (c) is religiously affiliated. Applying the Great Falls test in this case, we reverse the judge’s decision and dismiss the underlying unfair labor practice complaint.

 

https://www.nlrb.gov/case/14-CA-201546

 

Horne v. Ahern Rentals, Inc. (CA2/8 B299605 6/10/20) Hirer's Responsibility for Contractor Employee Injury

 

The family of an employee of an independent contractor sued the hirer of the independent contractor, alleging the hirer’s negligence was a substantial factor in causing the employee’s death.  With some exceptions, such suits are barred by the Privette rule.  (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette).)  One of those exceptions is that a hirer is liable for injury to an employee of a contractor if the hirer exercised control over safety conditions at the worksite in a way that affirmatively contributed to the employee’s injuries.  (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202 (Hooker).)

 

Plaintiffs contend there are triable issues of fact whether defendant affirmatively contributed to the collapse of a forklift on the decedent while he was replacing its tires.  We agree with the trial court that plaintiffs failed to present evidence that defendant affirmatively contributed to decedent’s injuries under Hooker’s retained control exception to the Privette rule.  Accordingly, we affirm the court’s grant of summary judgment.

 

https://www.courts.ca.gov/opinions/documents/B299605.PDF

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

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