Reverse chronological e-mail alerts prepared pro bono for the California Lawyers Association (formerly State Bar of California) Labor & Employment Law Section since 2007, covering California, 9th Circuit and US Supreme Court decisions, and new laws signed by Governor. To subscribe, contact LaborLaw@CLA.Legal.

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P. v. Uber Technologies, Inc. (CA1/4 A160701 10/22/20) Misclassification/Preliminary Injunction

 

To secure a preliminary injunction, the plaintiff must establish “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor,” and, particularly where public harm is implicated, “that an injunction is in the public interest.”  (Winter v. Natural Resources Defense Council, Inc. (2008) 555 U.S. 7, 20 (Winter).)  But it must always be kept in mind that interim injunctive relief is rooted in principles of equity and is fundamentally committed to the sound discretion of the trial court.  “Flexibility is a hallmark of equity jurisdiction.  ‘The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case.  Flexibility rather than rigidity has distinguished it.’  [Citation.]  Consistent with equity’s character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief.  Instead, courts have evaluated claims for equitable relief on a ‘sliding scale,’ sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high.”  (Id. at p. 51 (dis. opn. of Ginsburg, J.).) 

 

This reminder that the foundation of interim injunctive relief lies in equity comes from Justice Ruth Bader Ginsburg, who was renowned for her expertise in procedure long before she became the national icon known as RBG.  What Justice Ginsburg says in Winter, though put forward on a point of federal law in dissent—a dissent that would have affirmed as within a trial judge’s considered discretion the issuance of a preliminary injunction in favor of a private party against an alleged violation of a federal statute by the Navy—happens to capture the essence of California law on the same point.  (Butt v. State of California (1992) 4 Cal.4th 668, 678 (Butt) [a trial court’s decision to issue preliminary injunctive relief “must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff’s showing on one, the less must be shown on the other to support an injunction”].)  Justice Ginsburg’s cogent explanation of the governing standard as one that rests on a “sliding scale” calculus expresses a principle that will ultimately drive our analysis of this case.

 

We have before us a civil enforcement action brought by the People against defendants Uber Technologies, Inc. and Lyft, Inc. (Uber and Lyft).  Compared to Winter, the roles of the parties are reversed:  It is the government that seeks interim injunctive relief against private parties.  The core allegation in the case is that Uber and Lyft improperly misclassify drivers using their ride-hailing platforms as independent contractors rather than employees, thus depriving them of a host of benefits to which employees are entitled.  This misclassification, it is alleged, also gives defendants an unfair advantage against competitor companies, while costing the public significant sums in lost tax revenues and increased social-safety-net expenditures that are foisted on the state because drivers must go without employment benefits.  Mindful that—absent legal error—our role in reviewing a decision to issue interim injunctive relief is a limited one, we address here whether the trial court abused its discretion in granting a preliminary injunction that restrains Uber and Lyft from classifying their drivers as independent contractors.  Seeing no legal error, we conclude the trial court acted within its discretion and accordingly affirm the order as issued.

 

https://www.courts.ca.gov/opinions/documents/A160701.PDF

 

Kramer v. Traditional Escrow (CA4/3 G058522 10/20/20) Wage and Hour/Default Judgment/Equitable Relief

 

Plaintiff Michelle Kramer filed this wage and hour lawsuit against her employer, defendants Traditional Escrow, Inc. (Traditional), and its alleged alter ego, Annette Scherrer-Cosner (Cosner; collectively defendants).  A few months after defendants answered the initial complaint, their counsel withdrew, and defendants subsequently chose not to participate in this case.  Plaintiff continued to serve defendants with all case documents, including an amended complaint, at their address of record.  But, in violation of the California Rules of Court, defendants changed their mailing address without giving notice to plaintiff or the trial court.  As a result, they did not receive any of the documents that plaintiff served on them after their counsel withdrew.  Eventually, default and default judgment were entered against them due to their failure to answer the amended complaint.

 

Defendants filed a motion to set aside the default and vacate the default judgment, arguing they were entitled to equitable relief because they had been prevented from responding to the amended complaint due to extrinsic fraud and extrinsic mistake.  The trial court granted the motion, finding that defendants were unaware the complaint had been amended.  It also found that after filing the amended complaint, plaintiff’s counsel misrepresented to Cosner’s divorce attorney, who was unaffiliated with this matter, that defendants were in default and could not file an answer.  Plaintiff appeals the trial court’s ruling, arguing equitable relief was unwarranted.

 

We agree.  Equitable relief from a default judgment is reserved for exceptional circumstances.  None exist here.  To the extent defendants were unaware of the amended complaint, it was due to their own negligence.  They chose not to participate in the proceedings.  They also missed every document served on them, including the amended complaint, because they failed to inform the trial court and plaintiff of their current mailing address.  Indeed, defendants made themselves unreachable by any means.  They could not be reached by phone or e-mail, missing multiple phone calls from plaintiff and an e-mail from the trial court.  Defendants cannot deliberately neglect this lawsuit and go off-grid, so to speak, and then complain that they lacked notice of the proceedings.  Besides, about a month prior to entry of default, defendants received actual notice that an amended complaint had been filed.  Yet they did nothing.

           

Nor is equitable relief warranted based on the alleged misrepresentation made by plaintiff’s attorney that defendants were in default.  If defendants were misled, it was due to their own negligence.  They failed to pay any attention to this lawsuit and missed every notice from plaintiff because they had made themselves unreachable.  Moreover, defendants have not explained why they failed to act after the misrepresentation occurred.  This lack of diligence bars them from seeking relief.

           

Simply put, there are no exceptional circumstances warranting relief.  Thus, we reverse the trial court’s order.

 

https://www.courts.ca.gov/opinions/documents/G058522.PDF

 

Garcia-Brower v. Premier Automotive Imports of CA, LLC (CA1/1 A156985 10/15/20) Dismissed Conviction/Falsification of Job Application

 

Labor Code section 432.7 prohibits an employer from asking a job applicant to disclose any conviction that has been judicially dismissed and bars an employer from using any record of a dismissed conviction as a factor in the termination of employment.  Tracey Molina was hired by respondent Premier Automotive Imports of CA, LLC (Premier) in 2014.  Exercising her rights under the Labor Code, she did not disclose a dismissed 2010 conviction for misdemeanor grand theft on her job application.  She passed Premier’s criminal background check and had been working for the company for four weeks when the Department of Motor Vehicles (DMV) mistakenly reported that Molina had an active criminal conviction.

 

Rather than investigate the discrepancy between the criminal background reports, Premier decided to terminate Molina for “falsification of job application,” even after she explained to her superiors that her conviction had been dismissed by court order.  Although the DMV issued a corrected notice three weeks later, Molina was not rehired by Premier. 

 

The Labor Commissioner determined that Molina had been unlawfully discharged and ordered her reinstatement with back pay.  Premier’s administrative appeal of the decision was denied.  When Premier did not comply with the orders, the Commissioner filed the instant enforcement action on Molina’s behalf. Following the Commissioner’s presentation of evidence at trial, the trial court granted Premier’s motion for nonsuit, finding an absence of any evidence that Premier was aware at the time it terminated Molina that her conviction had been judicially dismissed.  We conclude the trial court erred in granting nonsuit and reverse the judgment below. 

 

https://www.courts.ca.gov/opinions/documents/A156985.PDF

 

Provost v. YourMechanic, Inc. (CA4/1 D076569 10/15/20) PAGA/Arbitration

 

Defendant YourMechanic, Inc. (sometimes, YourMechanic or company) appeals the trial court order denying its motion to compel arbitration (sometimes, motion).  YourMechanic sought to compel plaintiff Jonathan Provost to arbitrate whether he was an “aggrieved employee” within the meaning of the Labor Code before he could proceed under the Private Attorneys General Act of 2004 (PAGA) (§ 2698 et seq.) with his single-count representative action alleging various Labor Code violations against company.

           

We independently conclude the court properly denied YourMechanic’s motion.  As we explain, requiring Provost to arbitrate whether he was an “aggrieved employee” with standing to bring a representative PAGA action would require splitting that single action into two components:  an arbitrable “individual” claim (i.e., whether he was an independent contractor or employee under either the parties’ written arbitration provision or section 226.8 (discussed post), making it unlawful to willfully misclassify an individual as an independent contractor); and a nonarbitrable representative claim.  Our conclusion is based on a series of cases holding a PAGA-only representative action is not an individual action at all, but instead is one that is indivisible and belongs solely to the state.  Therefore, YourMechanic cannot require Provost to submit by contract any part of his representative PAGA action to arbitration.  Affirmed.

 

https://www.courts.ca.gov/opinions/documents/D076569.PDF

 

ILWU V. NLRB (9th Cir. 19-70297 10/14/20) NLRB/Binding Precedence

 

The panel granted petitions for review, denied the National Labor Relations Board’s cross-petition for enforcement, and remanded for further proceedings in an intra-union dispute over the right to perform certain maintenance and repair (“M&R”) work for Kinder Morgan Terminals at its Bulk Terminal facility in Vancouver, Washington.

 

In 2008, Local 4 of the International Longshore and Warehouse Union and the Pacific Maritime Association (“PMA”) negotiated a collective bargaining agreement (CBA) in which PMA agreed to expand Longshoremen’s jurisdiction to include additional work at facilities run by PMA members. Kinder Morgan, a PMA member, had previously subcontracted the electrical M&R work at its Vancouver facility to a company that employed electricians represented by Local 48 of the International Brotherhood of Electrical Workers. The Longshoremen filed several grievances to enforce the new CBA when Kinder Morgan continued using Electrical Workers even after the CBA took effect. Kinder Morgan asked the Board to intervene. Agency and arbitral decisions ensued. Following a 2011 hearing under section 10(k) of the National Labor Relations Act (the “NLRA”), the Board awarded the disputed work to the Electrical Workers over the Longshoremen’s defense that they were preserving work secured under the CBA.

 

The Longshoremen and PMA sought review of the Board’s order rejecting the Longshoremen’s work preservation defense, finding the Longshoremen in violation of the NLRA, and ordering them to cease all attempts to obtain the disputed work, to withdraw its grievances, and to request vacatur of their favorable arbitral award.

 

The panel reaffirmed the well-settled rule that 10(k) decisions are not res judicata in subsequent unfair labor practice proceedings. The panel held, therefore, that the Board erred in deeming its 10(k) decision dispositive of the Longshoremen’s work preservation doctrine.

 

The panel rejected the Board’s construction of the work preservation defense. The panel noted that the Supreme Court has disallowed a narrow focus on past performance of the precise work in dispute as ill-suited to a holistic, circumstantial inquiry required here where the parties have agreements aimed at preserving union jobs in the face of technological threats to traditional union work. The panel held that the Board erred by disregarding this binding precedent and instead making past performance of the specific work at issue the beginning and end of its analysis. 

 

The panel held that the 2008 CBA encompassed the disputed work which both unions claimed. The panel further held that the plain language of the CBA unambiguously assigned to the Longshoremen all M&R work, on all present and future stevedore cargo handling—including its technological equipment and electronics—for all PMA members, at all West Coast ports. The panel held that the Board erred by using extrinsic evidence to inject ambiguity into the CBA’s unambiguous terms and, by extension, assessing the Longshoremen’s work preservation defense based on that erroneous construction.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/14/19-70297.pdf

 

State of Cal. v. Little Sisters of the Poor (9th Cir. 19-15072 order 10/7/20) ACA Religious Employer Exemption/Contraceptives

 

On August 13, 2020, this court ordered the parties to address two issues. First was the impact of the Supreme Court’s opinion in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 140 S. Ct. 2367 (2020), on this case. Second was whether this case should be remanded to the district court to apply the Supreme Court’s opinion in the first instance. The parties have filed their supplemental briefs. The preliminary injunction is VACATED, and these related cases are REMANDED to the district court to apply the Supreme Court’s opinion.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/10/08/19%C2%AD15072.pdf

 

Skaff v. Rio Nido Roadhouse (CA1/1 A152462 10/5/20)  Disability Access/Health & Safety Code section 19955 et seq./Unruh Civil Rights Act

 

Plaintiff Richard Skaff sued a restaurant and bar establishment called the Rio Nido Roadhouse (Roadhouse), doing business as Lowbrau, LLC (Lowbrau), alleging that the Roadhouse and an adjoining parking lot were inaccessible to wheelchair users.  Plaintiff asserted two causes of action, one under Health and Safety Code section 19955 et seq., and the second under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (Unruh Act)).  Under section 19955, public accommodations like the Roadhouse must comply with California Building Code disability access standards if repairs and alterations were made to an existing facility that trigger accessibility mandates.  No evidence was adduced at trial that Lowbrau had undertaken any triggering alterations at the Roadhouse which required compliance with section 19955. 

 

Lowbrau did, however, voluntarily remediate the barriers to access previously identified by plaintiff.  The trial court entered judgment against plaintiff on his Unruh Act cause of action but ruled in his favor on the section 19955 claim.  The court reasoned that plaintiff was the prevailing party under a “catalyst theory” (see Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553 (Graham)), because his lawsuit was the catalyst that caused the renovations at the Roadhouse.  Plaintiff was awarded $242,672 in attorney fees and costs.  Lowbrau appeals from the judgment and the post-judgment order awarding attorney fees and costs.  Plaintiff  also appeals, contending the court erred in failing to award all of his requested fees. 

 

We reverse the judgment and fee award.  It is axiomatic that plaintiff cannot prevail on a cause of action in which no violation of law was ever demonstrated or found.  Nor is the catalyst theory available when a claim lacks legal merit.  That a prelitigation demand may have spurred action that resulted in positive societal benefit is not reason alone to award attorney fees under the Civil Code. 

 

https://www.courts.ca.gov/opinions/documents/A152462.PDF

 

Hooked Media Group, Inc. v. Apple Inc. (CA6 H044395, filed 5/28/20, pub. ord. 9/30/20) Trade Secrets/Interference with Contract and Prospective Economic Advantage

 

Hooked Media Group is a startup company that Apple expressed interest in acquiring.  Representatives from each company met to explore a possible acquisition but Apple ultimately passed.  Then three of Hooked’s most important employees left––to work for Apple.  Hooked sued for fraud; misappropriation of trade secrets; interference with contract and prospective economic advantage; aiding and abetting breach of fiduciary duty; unfair business practices; and unjust enrichment.  The trial court granted summary judgment for Apple.  We will affirm. 

 

https://www.courts.ca.gov/opinions/documents/H044395.PDF

 

2020 LABOR AND EMPLOYMENT BILLS SIGNED BY GOVERNOR

 

BY BILL NUMBER

 

  • AB 107 by the Committee on Budget – State government [adds Revenue and Taxation Code section 19551.2 to require EDD reporting on coronavirus unemployment] 

  • AB 276 by Assemblymember Laura Friedman (D-Glendale) – Personal income taxes: qualified employer plan: loans: CARES Act

  • AB 323 by Assemblymember Blanca Rubio (D-Baldwin Park) – Newspapers: state agency advertising: worker status: independent contractors

  • AB 685 by Assemblymember Eloise Gómez Reyes (D-San Bernardino) – COVID-19: imminent hazard to employees: exposure: notification: serious violations

  • AB 736 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – Employee classification: professional classification: specified educational employees

  • AB 846 by Assemblymember Autumn Burke (D-Inglewood) and Assemblymember Jacqui Irwin (D-Thousand Oaks) – Public employment: public officers or employees declared by law to be peace officers

  • AB 908 by Assemblymember Patrick O’Donnell (D-Long Beach) – Pupils: extracurricular activities: work permits

  • AB 979 by Assemblymember Chris Holden (D-Pasadena) – Corporations: boards of directors: underrepresented communities

  • AB 1140 by Assemblymember Mark Stone (D-Monterey Bay) – Public Employees’ Retirement System: contracting agencies: consolidation

  • AB 1512 by Assemblymember Wendy Carrillo (D-Los Angeles) – Security officers: rest periods

  • AB 1731 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Unemployment insurance: work sharing plans

  • AB 1859 by Assemblymember Miguel Santiago (D-Los Angeles) – School district employees: merit systems: appointments

  • AB 1867 by Committee on Budget – Small employer family leave mediation: handwashing: supplemental paid sick leave

  • AB 1945 by Assemblymember Rudy Salas (D-Bakersfield) – Emergency services: first responders

  • AB 1947 by Assemblymember Ash Kalra (D-San Jose) – Employment violation complaints: requirements: time

  • AB 2017 by Assemblymember Kevin Mullin (D-South San Francisco) – Employee: sick leave: kin care.

  • AB 2043 by Assemblymember Robert Rivas (D-Hollister) – Occupational safety and health: agricultural employers and employees: COVID-19 response

  • AB 2101 by the Committee on Public Employment and Retirement – Public employees’ retirement 

  • AB 2210 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Contractors: violations: disciplinary actions

  • AB 2143 by Assemblymember Mark Stone (D-Monterey Bay) – Settlement agreements: employment disputes

  • AB 2147 by Assemblymember Eloise Gomez Reyes (D-San Bernardino) – Convictions: expungement: incarcerated individual hand crews

  • AB 2231 by Assemblymember Ash Kalra (D-San Jose) – Public works

  • AB 2234 by Assemblymember Ed Chau (D-Monterey Park) – Classified school and community college employees: personnel commission: legal counsel

  • AB 2257 by Assemblymember Lorena Gonzalez (D-San Diego) – Worker classification: employees and independent contractors: occupations: professional services

  • AB 2311 by Assemblymember Evan Low (D-Campbell) – Public contracts: skilled and trained workforce requirement: notice

  • AB 2399 by the Committee on Insurance – Paid family leave: qualifying exigency

  • AB 2463 by Assemblymember Buffy Wicks (D-Oakland) – Enforcement of money judgments: execution: homestead

  • AB 2479 by Assemblymember Mike Gipson (D-Carson) – Rest periods: petroleum facilities: safety-sensitive positions

  • AB 2537 by Assemblymember Freddie Rodriguez (D-Pomona) – Personal protective equipment: health care employees 

  • AB 2588 by Assemblymember Ash Kalra (D-San Jose) – Educational programs and training: costs: employees and applicants providing direct patient care

  • AB 2658 by Assemblymember Autumn Burke (D-Inglewood) – Occupational safety and health: hazards 

  • AB 2723 by Assemblymember David Chiu (D-San Francisco) – Civil actions: entry of judgment: written stipulation

  • AB 2765 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public works: prevailing wages

  • AB 2850 by Assemblymember Evan Low (D-Campbell) – Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District

  • AB 2967 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public Employees’ Retirement System: contracting agencies: exclusion from membership

  • AB 2992 by Assemblymember Shirley Weber (D-San Diego) – Employment practices: leave time

  • AB 3364 by Assembly Judiciary Committee – Judiciary omnibus [military or veteran status deemed civil right protected by FEHA]

  • AB 3020 by Assemblymember Todd Gloria (D-San Diego) – Unfair Practices Act

  • AB 3070 by Assemblymember Shirley Weber (D-San Diego) – Juries: peremptory challenges

  • AB 3075 by Assemblymember Lorena Gonzalez (D-San Diego) – Wages: enforcement.

  • AB 3374 by the Committee on Higher Education – Postsecondary education

  • AB 3372 by the Committee on Revenue and Taxation – Taxation: administration: earnings withholding: water’s edge elections 

  • SB 275 by Senator Richard Pan (D-Sacramento) – Health Care and Essential Workers: personal protective equipment 

  • SB 119 by the Committee on Budget and Fiscal Review – State employment: State Bargaining Units

  • SB 493 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Education: sex equity 

  • SB 973 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Employers: annual report: pay data

  • SB 1192 by Senator Steven Bradford (D-Gardena) – Firefighters’, police officers’, or peace officers’ benefit and relief associations

  • SB 1264 by the Committee on Human Services – Human services

  • SB 1384 by Senator William Monning (D-Carmel) – Labor Commissioner: financially disabled persons: representation

 

BY SUBJECT MATTER

 

COVID-19

 

  • AB 107 by the Committee on Budget – State government [adds Revenue and Taxation Code section 19551.2 to require EDD reporting on coronavirus unemployment] 

  • AB 685 by Assemblymember Eloise Gómez Reyes (D-San Bernardino) – COVID-19: imminent hazard to employees: exposure: notification: serious violations

  • AB 2043 by Assemblymember Robert Rivas (D-Hollister) – Occupational safety and health: agricultural employers and employees: COVID-19 response

  • AB 2537 by Assemblymember Freddie Rodriguez (D-Pomona) – Personal protective equipment: health care employees 

  • AB 2658 by Assemblymember Autumn Burke (D-Inglewood) – Occupational safety and health: hazards

  • SB 275 by Senator Richard Pan (D-Sacramento) – Health Care and Essential Workers: personal protective equipment 

  • SB 1159 by Senator Jerry Hill (D-San Mateo) – Workers’ compensation: COVID-19: critical workers

 

Discrimination, Harassment & Retaliation

 

  • AB 2143 by Assemblymember Mark Stone (D-Monterey Bay) – Settlement agreements: employment disputes

  • AB 3364 by Judiciary Committee – Judiciary omnibus [military or veteran status deemed civil right protected by FEHA]

  • SB 493 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Education: sex equity 

  • SB 973 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Employers: annual report: pay data

 

Earnings Withholding

 

  • AB 3372 by the Committee on Revenue and Taxation – Taxation: administration: earnings withholding: water’s edge elections 

 

Employment Benefits

 

  • AB 3020 by Assemblymember Todd Gloria (D-San Diego) – Unfair Practices Act

 

Leaves

 

  • AB 1867 by Committee on Budget – Small employer family leave mediation: handwashing: supplemental paid sick leave

  • AB 2017 by Assemblymember Kevin Mullin (D-South San Francisco) – Employee: sick leave: kin care

  • AB 2399 by the Committee on Insurance – Paid family leave: qualifying exigency

  • AB 2992 by Assemblymember Shirley Weber (D-San Diego) – Employment practices: leave time

  • SB 1383 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practice: California Family Rights Act

 

Licensing

 

  • AB 2210 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Contractors: violations: disciplinary actions

 

Procedure

 

  • AB 2463 by Assemblymember Buffy Wicks (D-Oakland) – Enforcement of money judgments: execution: homestead

  • AB 2723 by Assemblymember David Chiu (D-San Francisco) – Civil actions: entry of judgment: written stipulation

 

Public Sector Employment

 

  • AB 323 by Assemblymember Blanca Rubio (D-Baldwin Park) – Newspapers: state agency advertising: worker status: independent contractors

  • AB 846 by Assemblymember Autumn Burke (D-Inglewood) and Assemblymember Jacqui Irwin (D-Thousand Oaks) – Public employment: public officers or employees declared by law to be peace officers

  • AB 1140 by Assemblymember Mark Stone (D-Monterey Bay) – Public Employees’ Retirement System: contracting agencies: consolidation

  • AB 1859 by Assemblymember Miguel Santiago (D-Los Angeles) – School district employees: merit systems: appointments

  • AB 1945 by Assemblymember Rudy Salas (D-Bakersfield) – Emergency services: first responders

  • AB 2101 by the Committee on Public Employment and Retirement – Public employees’ retirement 

  • AB 2147 by Assemblymember Eloise Gomez Reyes (D-San Bernardino) – Convictions: expungement: incarcerated individual hand crews

  • AB 2234 by Assemblymember Ed Chau (D-Monterey Park) – Classified school and community college employees: personnel commission: legal counsel

  • AB 2967 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public Employees’ Retirement System: contracting agencies: exclusion from membership

  • AB 2850 by Assemblymember Evan Low (D-Campbell) – Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District

  • SB 119 by the Committee on Budget and Fiscal Review – State employment: State Bargaining Units

  • SB 1192 by Senator Steven Bradford (D-Gardena) – Firefighters’, police officers’, or peace officers’ benefit and relief associations

  • SB 1264 by the Committee on Human Services – Human services

 

Public Contracts/Public Works

 

  • AB 2231 by Assemblymember Ash Kalra (D-San Jose) – Public works

  • AB 2311 by Assemblymember Evan Low (D-Campbell) – Public contracts: skilled and trained workforce requirement: notice

 

Training

 

  • AB 2588 by Assemblymember Ash Kalra (D-San Jose) – Educational programs and training: costs: employees and applicants providing direct patient care

 

Unemployment Insurance

 

  • AB 1731 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Unemployment insurance: work sharing plans

 

Unfair Competition

 

  • AB 3020 by Assemblymember Todd Gloria (D-San Diego) – Unfair Practices Act

 

Wage and Hour

 

  • AB 736 by Assemblymember Jacqui Irwin (D-Thousand Oaks) – Employee classification: professional classification: specified educational employees

  • AB 1512 by Assemblymember Wendy Carrillo (D-Los Angeles) – Security officers: rest periods

  • AB 1947 by Assemblymember Ash Kalra (D-San Jose) – Employment violation complaints: requirements: time

  • AB 2257 by Assemblymember Lorena Gonzalez (D-San Diego) – Worker classification: employees and independent contractors: occupations: professional services

  • AB 2479 by Assemblymember Mike Gipson (D-Carson) – Rest periods: petroleum facilities: safety-sensitive positions

  • AB 2765 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public works: prevailing wages

  • AB 3075 by Assemblymember Lorena Gonzalez (D-San Diego) – Wages: enforcement.

  • AB 3374 by the Committee on Higher Education – Postsecondary education

  • SB 1384 by Senator William Monning (D-Carmel) – Labor Commissioner: financially disabled persons: representation

 

Work Permits

 

  • AB 908 by Assemblymember Patrick O’Donnell (D-Long Beach) – Pupils: extracurricular activities: work permits

 

Bills Signed by Governor (2 of 2) (9/30/20)

 

  • AB 323 by Assemblymember Blanca Rubio (D-Baldwin Park) – Newspapers: state agency advertising: worker status: independent contractors

  • AB 846 by Assemblymember Autumn Burke (D-Inglewood) and Assemblymember Jacqui Irwin (D-Thousand Oaks) – Public employment: public officers or employees declared by law to be peace officers

  • AB 1512 by Assemblymember Wendy Carrillo (D-Los Angeles) – Security officers: rest periods

  • AB 1947 by Assemblymember Ash Kalra (D-San Jose) – Employment violation complaints: requirements: time

  • AB 2231 by Assemblymember Ash Kalra (D-San Jose) – Public works

  • AB 2311 by Assemblymember Evan Low (D-Campbell) – Public contracts: skilled and trained workforce requirement: notice

  • AB 2399 by the Committee on Insurance – Paid family leave: qualifying exigency

  • AB 2479 by Assemblymember Mike Gipson (D-Carson) – Rest periods: petroleum facilities: safety-sensitive positions

  • AB 2588 by Assemblymember Ash Kalra (D-San Jose) – Educational programs and training: costs: employees and applicants providing direct patient care

  • AB 2765 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public works: prevailing wages

  • AB 3075 by Assemblymember Lorena Gonzalez (D-San Diego) – Wages: enforcement.

  • SB 973 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Employers: annual report: pay data

  • SB 1192 by Senator Steven Bradford (D-Gardena) – Firefighters’, police officers’, or peace officers’ benefit and relief associations.

  • SB 1264 by the Committee on Human Services – Human services

 

Bills Vetoed by Governor (9/30/20)

 

  • AB 1299 by Assemblymember Rudy Salas (D-Bakersfield) – Peace officers: employment. A veto message can be found here.

  • AB 1457 by Assemblymember Sabrina Cervantes (D-Riverside) – Regional business training center network: pilot project. A veto message can be found here.

  • AB 1906 by Assemblymember Rudy Salas (D-Bakersfield) – Pregnant peace officers: duty assignment policy. A veto message can be found here.

  • AB 1993 by Assemblymember Sydney Kamlager (D-Los Angeles) – Unemployment and disability insurance: benefits: in-home supportive services and waiver personal care services. A veto message can be found here.

  • AB 3216 by Assemblymember Ash Kalra (D-San Jose) – Unemployment: rehiring and retention: state of emergency. A veto message can be found here.

  • SB 1220 by Senator Thomas Umberg (D-Santa Ana) – Peace and custodial officers. A veto message can be found here.

 

Bills Signed by Governor (1 of 2) (9/30/20)

 

  • AB 979 by Assemblymember Chris Holden (D-Pasadena) – Corporations: boards of directors: underrepresented communities.

  • AB 3070 by Assemblymember Shirley Weber (D-San Diego) – Juries: peremptory challenges.

 

Bills Signed by Governor (9/29/20)

 

  • AB 107 by the Committee on Budget – State government [adds Revenue and Taxation Code section 19551.2 to require EDD reporting on coronavirus unemployment]

  • AB 2101 by the Committee on Public Employment and Retirement – Public employees’ retirement.

  • AB 2537 by Assemblymember Freddie Rodriguez (D-Pomona) – Personal protective equipment: health care employees.

  • AB 2658 by Assemblymember Autumn Burke (D-Inglewood) – Occupational safety and health: hazards.

  • AB 2723 by Assemblymember David Chiu (D-San Francisco) – Civil actions: entry of judgment: written stipulation.

  • AB 2850 by Assemblymember Evan Low (D-Campbell) – Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District.

  • AB 3372 by the Committee on Revenue and Taxation – Taxation: administration: earnings withholding: water’s edge elections.

  • SB 275 by Senator Richard Pan (D-Sacramento) – Health Care and Essential Workers: personal protective equipment.

  • SB 493 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Education: sex equity.

 

Bills Vetoed by Governor (9/29/20)

 

  • AB 2114 by Assemblymember Freddie Rodriguez (D-Pomona) – Higher Education Employer-Employee Relations Act: procedures relating to employee termination or discipline. A veto message can be found here.

  • SB 741 by Senator Cathleen Galgiani (D-Stockton) – Change of gender and sex identifier. A veto message can be found here.

  • SB 1257 by Senator Maria Elena Durazo (D-Los Angeles) – Employment safety standards: household domestic services. A veto message can be found here.

 

Alborzi v. University of Southern California (CA2/4 B299067 9/29/20) Health Care Whistleblower Law

 

Plaintiffs Arash Alborzi, M.D., and Arash Alborzi, M.D., Inc. sued defendants University of Southern California, Keck School of Medicine of USC, and USC Verdugo Hills Hospital (collectively, USC); as well as Concord Hospitalist Group and Elevate Health Group.  Alborzi and his corporation were part of a panel of on-call physicians at Verdugo Hills Hospital.  Plaintiffs alleged that defendants entered into an illegal referral and kickback scheme in which

 

USC paid below-market rates for hospitalist services from Concord, and Concord self-referred patients to Elevate, which shared ownership with Concord. Plaintiffs alleged that when Alborzi complained to management at Verdugo Hills Hospital about the illegal scheme, the hospital stopped referring patients to him and eventually dissolved the on-call panel in retaliation.  Plaintiffs’ causes of action include violations of Health and Safety Code section 1278.5, a health care whistleblower statute; Government Code section 12653, part of the California False Claims Act; and Business and Professions Code section 17200, et seq., the Unfair Competition Law.

 

USC demurred to plaintiffs’ complaint, asserting that plaintiffs were required to exhaust all judicial remedies by filing a petition for writ of mandamus under Code of Civil Procedure section 1085 prior to filing an action for damages.  The trial court sustained the demurrer on that basis and entered judgment for all defendants.  We find that the trial court erred, because plaintiffs were not required to exhaust judicial remedies before asserting the causes of action they have alleged here.

 

USC asserted in the alternative that plaintiffs’ complaint failed to allege facts sufficient to state a cause of action.  On appeal, plaintiffs argue that three of their six causes of action were sufficiently alleged.  We find plaintiffs’ complaint alleged sufficient facts to support causes of action for violations of Health and Safety Code section 1278.5 and Business and Professions Code section 17200, et seq., and therefore the demurrer should have been overruled as to those claims.  We find that plaintiffs’ cause of action for violation of Government Code section 12653 failed to allege sufficient facts to state a cause of action, but leave to amend was warranted.  Finally, we find that plaintiffs have abandoned the three causes of action they did not address on appeal.  We therefore reverse the judgment, and remand the action with directions to enter a new order sustaining the demurrer in part and overruling the demurrer in part.

 

https://www.courts.ca.gov/opinions/documents/B299067.PDF

 

Bills Signed by Governor (9/28/20)

 

  • AB 1731 by Assemblymember Tasha Boerner Horvath (D-Encinitas) – Unemployment insurance: work sharing plans.

  • AB 2017 by Assemblymember Kevin Mullin (D-South San Francisco) – Employee: sick leave: kin care.

  • AB 2043 by Assemblymember Robert Rivas (D-Hollister) – Occupational safety and health: agricultural employers and employees: COVID-19 response.

  • AB 2463 by Assemblymember Buffy Wicks (D-Oakland) – Enforcement of money judgments: execution: homestead.

  • AB 2967 by Assemblymember Patrick O’Donnell (D-Long Beach) – Public Employees’ Retirement System: contracting agencies: exclusion from membership.

  • AB 2992 by Assemblymember Shirley Weber (D-San Diego) – Employment practices: leave time.

  • SB 1384 by Senator William Monning (D-Carmel) – Labor Commissioner: financially disabled persons: representation.

 

Bills Vetoed by Governor (9/28/20)

 

  • AB 2092 by Assemblymember Freddie Rodriguez (D-Pomona) – Emergency ambulance employees: subsidized protective gear. A veto message can be found here.

  • SB 1102 by Senator William Monning (D-Carmel) – Employers: Labor Commissioner: required disclosures. A veto message can be found here.

 

Bill Vetoed by Governor (9/25/20)

 

  • SB 179 by Senator Jim Nielsen (R-Red Bluff) – Excluded employees: arbitration. A veto message can be found here.

 

Bills Signed by Governor (9/24/20)

 

  • AB 2210 by Assemblymember Cecilia Aguiar-Curry (D-Winters) – Contractors: violations: disciplinary actions.

  • AB 3374 by the Committee on Higher Education – Postsecondary education.

 

Bills Vetoed by Governor (9/24/20)

 

  • AB 1066 by Assemblymember Lorena Gonzalez (D-San Diego) – Unemployment compensation: benefits payable: collection. A veto message can be found here.

  • AB 3053 by Assemblymember Tom Daly (D-Anaheim) – Labor Commissioner: unpaid wage claim process. A veto message can be found here.

 

Chaplin v. State Personnel Board (CA1/1 A155107 9/23/20) State Personnel Board/Firefighter Discipline

 

Real party in interest California Department of Forestry and Fire Protection (CAL FIRE) disciplined three of its firefighters (appellants Justin Chaplin, James Michels, and Frank Schonig) for cheating on a promotional exam.  One of the men appealed his discipline to respondent California State Personnel Board (Board), but the other two did not.  While the one appeal was pending, CAL FIRE substituted new disciplinary notices against all three men, seeking to impose harsher penalties.  Over the men’s objections, the Board allowed CAL FIRE to proceed.  The firefighters filed a petition for a writ of mandate in the trial court, which the court denied.

           

We hold that CAL FIRE permissibly substituted its disciplinary notice against the firefighter whose appeal was pending before the Board, but not against the other two, because by statute their discipline became final 30 days after they did not appeal.  (Gov. Code, § 19575.)   We therefore affirm the trial court’s ruling as to the one firefighter and reverse it as to the other two.

 

https://www.courts.ca.gov/opinions/documents/A155107.PDF

 

Doe v. Google, Inc. (CA1/4 A157097 9/21/20) PAGA/NLRA/Garmon Exception

 

Google, Inc. and Alphabet, Inc. (collectively, Google), and Adecco USA, Inc. (Adecco) require their employees to comply with various confidentiality policies.  John Doe, David Gudeman, and Paola Correa, who are current and former Google and Adecco employees, sued Google and Adecco under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), alleging the employers’ confidentiality policies restricted their employees’ speech in violation of California law.  The trial court sustained defendants’ demurrers without leave to amend, concluding plaintiffs’ claims were preempted by the National Labor Relations Act (NLRA or Act) (29 U.S.C. § 151 et seq.) under San Diego Bldg. Trades Council v. Garmon (1959) 359 U.S. 236, 244–245 (Garmon).  Plaintiffs contend the trial court erred in finding the NLRA preempted their PAGA claims.  They further challenge the trial court’s denial of a petition to coordinate this case with another case pending in a different trial court. 

 

We conclude that, although many of plaintiffs’ claims relate to conduct that is arguably within the scope of the NLRA, the claims fall within the local interest exception to Garmon preemption and may therefore go forward.  We also conclude that plaintiffs’ challenge to the trial court’s coordination petition is not properly before us.  We will therefore reverse the trial court’s orders sustaining defendants’ demurrers without leave to amend and remand for further proceedings. 

 

https://www.courts.ca.gov/opinions/documents/A157097.PDF

 

SEIU Local 121RN v. Los Robles Geg’l Med. Ctr. (9th Cir. 19-55185 9/18/20) Arbitration/Collective Bargaining Agreement

 

The panel (1) reversed the district court’s order on a motion to compel arbitration of a grievance in which SEIU Local 121RN, who represented registered nurses working at Los Robles Regional Medical Center, asserted that the Hospital placed certain types of patients with nurses who did not have the appropriate training for those patients and that the Hospital was violating nurse-to-patient ratios established by state law; and (2) remanded for further proceedings.

 

In First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995), the Supreme Court established that a court, not the arbitrator, must make the determination whether the arbitrability of an issue is itself arbitrable when the relevant agreement is silent on that question. In United Bhd. Of Carpenters & Joiners of Am., Local No. 1780 v. Desert Palace, Inc., 94 F.3d 1308 (9th Cir. 1996), this court stated that labor cases are different, and in those cases, an arbitrator should decide arbitrability as long as the agreement includes a broad arbitration clause. Desert Palace distinguished collective bargaining disputes (at issue in Desert Palace) from commercial arbitration disputes (at issue in First Options) on policy grounds, and thus opted not to apply First Options.

 

Applying Desert Palace, the district court found that the arbitration provision in the parties’ collective bargaining agreement was broad enough to authorize the arbitrator— rather than the court—to determine whether the grievance was arbitrable and therefore granted SEIU’s motion to compel arbitration without reaching the question of whether the grievance was in fact arbitrable.

 

The panel held that the rationale in Desert Palace, Inc. is “clearly irreconcilable with the reasoning or theory of intervening higher authority” set forth in Granite Rock Co. v. Int’l Bhd. Of Teamsters, 561 U.S. 287 (2010), which expressly rejected the notion that labor arbitration disputes should be analyzed differently than commercial arbitration disputes. The panel concluded that it was therefore not bound by Desert Palace. Absent clear and unmistakable evidence of the parties’ intent to have an arbitrator—rather than the court—decide whether SEIU’s grievance is arbitrable, the panel held that the district court is responsible for deciding that issue. The panel remanded for further proceedings.

 

Dissenting, Judge Lee agreed with much of the majority’s analysis, but was not convinced that Granite Rock has effectively overruled Desert Palace because they address two related—but distinct—issues. Therefore, Desert Palace should still stand.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/18/19-55185.pdf

 

Laver v. Credit Suisse Securities (USA) (9th Cir. 18-16328 9/18/20) Arbitration/FINRA Employee Deferred Compensation/Class Waiver

 

The panel affirmed the district court’s dismissal of a putative class action suit against Credit Suisse Securities, USA in favor of arbitration.

 

Plaintiff worked as a financial advisor at Credit Suisse Securities, USA (“CSSU”), and brought this putative class action alleging he was owed deferred compensation. CSSU moved to dismiss based on an arbitration clause and general class waiver set forth in an Employee Dispute Resolution Program. The Financial Industry Regulatory Authority (“FINRA”) is a securities industry self-regulatory organization that imposes rules regulating the conduct of its broker-dealer members. CSSU is a FINRA member. Plaintiff argued that FINRA Rule 13204(a)(4) barred CSSU from compelling arbitration of his claims.

 

The panel rejected plaintiff’s contention that Rule 13204 invalidated the Employee Dispute Resolution Program’s class waiver. Because the class waiver survived, the panel held that plaintiff relinquished his right to bring class claims in any forum. Because plaintiff was left with only individual claims, Rule 13204(a)(4)’s prohibition on enforcing arbitration agreements directed at putative or certified claims had no application here. In accord with the Second Circuit’s decision in Cohen v. UBS Fin. Servs., Inc., 799 F.3d 174 (2d Cir. 2015), the panel held that the district court correctly ordered the parties to arbitrate plaintiff’s remaining individual claims.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/18/18-16328.pdf

 

Bills Signed by Governor (9/17/20)

 

  • AB 685 by Assemblymember Eloise Gómez Reyes (D-San Bernardino) – COVID-19: imminent hazard to employees: exposure: notification: serious violations.

  • SB 1159 by Senator Jerry Hill (D-San Mateo) – Workers’ compensation: COVID-19: critical workers.

  • SB 1383 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practice: California Family Rights Act.

 

Belgau v. Inslee (9th Cir. 19-35137 9/16/20) Deduction of Union Dues/First Amendment

 

The panel affirmed the district court’s dismissal of a putative class action brought pursuant to 42 U.S.C. § 1983 alleging that deduction of union dues from plaintiffs’ paychecks violated the First Amendment.

 

Plaintiffs are public employees who signed membership agreements authorizing Washington state to deduct union dues from their paychecks and transmit them to the Washington Federation of State Employees, AFSCME Council 28 (“WFSE”). They had the option of declining union membership and paying fair-share representation (or agency) fees. After the decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), which held that compelling nonmembers to subsidize union speech is offensive to the First Amendment, employees notified WFSE that they no longer wanted to be union members or pay dues. Per this request, WFSE terminated employees’ union memberships. However, pursuant to the terms of revised membership agreements, Washington continued to deduct union dues from employees’ wages until an irrevocable one-year term expired.

 

The panel held that plaintiffs’ claims against WFSE failed under § 1983 for lack of state action. The panel held that neither Washington’s role in the alleged unconstitutional conduct nor its relationship with WFSE justified characterizing WFSE as a state actor. At bottom, Washington’s role was to enforce a private agreement. See Roberts v. AT&T Mobility LLC, 877 F.3d 833, 844 (9th Cir. 2017) (“there is no state action simply because the state enforces [a] private agreement”). Because the private dues agreements did not trigger state action and independent constitutional scrutiny, the district court properly dismissed the claims against WFSE.

 

Addressing whether the claims for prospective relief against Washington were moot, the panel held that the claims fell within the “capable of repetition yet evading review” mootness exception. The panel held that the challenged action, continued payroll deduction of union dues after an employee objects to union membership, capped at a period of one year, was too short for judicial review to run its course.

 

The panel held that the First Amendment claim for prospective relief against Washington failed because employees affirmatively consented to the deduction of union dues. The panel rejected employees’ argument that the Supreme Court’s decision in Janus voided the commitment they made and now required the state to insist on strict constitutional waivers with respect to deduction of union dues. The panel held that Janus did not extend a First Amendment right to avoid paying union dues, and in no way created a new First Amendment waiver requirement for union members before dues are deducted pursuant to a voluntary agreement. The panel held that neither state law nor the collective bargaining agreement compelled involuntary dues deduction and neither violated the First Amendment. The panel concluded that in the face of plaintiffs’ voluntary agreement to pay union dues and in the absence of any legitimate claim of compulsion, the district court appropriately dismissed the First Amendment claim against Washington.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/16/19-35137.pdf

 

Aerotek v. Johnson Group Staffing Co. (CA3 C078435 9/15/20) Trade Secrets/Prevailing Party’s Fees

 

California’s Uniform Trade Secrets Act allows courts to award reasonable attorney fees and costs to the “prevailing party” in certain cases involving bad faith claims.  (Civ. Code, § 3426.4.) The issue here concerns the ownership of fees awarded under this statute.  Is the prevailing litigant (here, The Johnson Group Staffing Company, Inc.) or the prevailing litigant’s attorney (here, Porter Scott, P.C.) entitled to the fees awarded to the “prevailing party”?  We conclude that, absent an enforceable agreement to the contrary, these fees belong to the attorney to the extent they exceed the fees the litigant already paid.  We further conclude that, although the parties here entered into a fee agreement, that agreement did not alter the default disposition of fees in favor of the attorney.  Because the trial court found likewise, we affirm.

 

https://www.courts.ca.gov/opinions/documents/C078435.PDF

 

Bills Signed by Governor (9/11/20)

 

  • AB 276 by Assemblymember Laura Friedman (D-Glendale) – Personal income taxes: qualified employer plan: loans: CARES Act.

  • AB 908 by Assemblymember Patrick O’Donnell (D-Long Beach) – Pupils: extracurricular activities: work permits.

  • AB 1140 by Assemblymember Mark Stone (D-Monterey Bay) – Public Employees’ Retirement System: contracting agencies: consolidation.

  • AB 1859 by Assemblymember Miguel Santiago (D-Los Angeles) – School district employees: merit systems: appointments.

  • AB 1945 by Assemblymember Rudy Salas (D-Bakersfield) – Emergency services: first responders.

  • AB 2143 by Assemblymember Mark Stone (D-Monterey Bay) – Settlement agreements: employment disputes.

  • AB 3020 by Assemblymember Todd Gloria (D-San Diego) – Unfair Practices Act.

 

Sanchez v. Martinez (CA3 C083268 9/11/20) Wage and Hour/Calculation of Damages and Penalties

 

Plaintiffs in this case are five farm laborers who filed suit against Miguel A. Martinez, their former employer, based on alleged violations of various labor laws.

 

We first considered their claims three years ago in Sanchez et al. v. Martinez (Jan. 12, 2016, C076852) [nonpub. opn.] (Sanchez).  In our initial review, we considered plaintiffs’ appeal from a judgment that rejected all their claims against Martinez.  Although we affirmed the judgment for the most part, we reversed to allow plaintiffs to proceed on two of their claims—one of which concerned Martinez’s failure to pay plaintiffs for rest periods, and another of which was derivative of their rest-period claim.  As we explained, Martinez was obligated to pay his employees for the time they spent on authorized rest periods.  But, we found, nothing in the evidence showed he had ever paid his employees for this time.  We thus remanded to allow the trial court to determine appropriate damages and penalties based on this failure.  After our remand, the trial court did as we directed.

 

Both parties now raise various challenges to the trial court’s calculation of damages and penalties.  Plaintiffs contend the trial court undervalued their damages and wrongly rejected several of their claims for penalties.  Martinez, in turn, asserts that insufficient evidence supports the trial court’s calculation of damages and penalties.  Because we find none of the parties’ several claims warrants reversal, we affirm the trial court’s decision.

 

https://www.courts.ca.gov/opinions/documents/C083268.PDF

 

NLRB v. IAB Local 229 (9th Cir. 17-73210 rehrg. en banc denied 9/11/20) NLRA

 

The panel denied a petition for panel rehearing and denied on behalf of the court a petition for rehearing en banc.

 

In its opinion, filed October 28, 2019, the panel granted the National Labor Relations Board’s petition for enforcement of its order entered against International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 229, enjoining Local 229 from committing violations of the National Labor Relations Act (“NLRA”). The Board affirmed the administrative law judge’s finding that Local 229 had violated Section 8(b)(4)(i)(B) of the NLRA by inducing or encouraging Commercial Metals Company’s neutral employees to strike or stop work for the unlawful secondary purpose of furthering Local 229’s primary labor dispute with Western Concrete Pumping. The panel rejected Local 229’s contention that the Board’s application of the NLRA to its conduct punished expressive activity protected by the First Amendment. Specifically, the panel refused to extend the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015), and refused to apply strict scrutiny to the analysis of Section 8(b)(4)(i)(B). The panel explained that Reed involved content-based restrictions in a municipal ordinance regulating signs directed toward the general public, whereas this case involved communications addressed to neutral employees within the tightly regulated contours of labor negotiations. The panel held that the Board reasonably rejected Local 229’s contention that Section 8(c) of the NLRA protected its communications because the Supreme Court has concluded that Section 8(c) does not immunize activities that violate Section 8(b)(4). The panel held that the Board properly rejected the challenges asserted by Local 229 under the Religious Freedom Restoration Act and under the Thirteenth Amendment to the United States Constitution. Finally, the panel held that the language of the Board’s order adequately apprised Local 229 of its notice obligations.

 

Judge Berzon, joined by Judges Graber, Wardlaw, W. Fletcher, Paez, and Bumatay, dissented from the denial of rehearing en banc because she would hold that the pure speech enjoined in this case was entitled to full First Amendment protection. By declining to undertake any identity-, content-, or viewpoint-based analysis – including the strict scrutiny inquiry those features should have triggered – and instead relying on an inapposite Supreme Court opinion, International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694 (1951), the panel in this case relegated to second-class constitutional status the right of labor organizations to speak on matters that may concern them greatly.

 

Judge Bumatay dissented from the denial of rehearing en banc. He agreed with Judge Berzon that the case should have been taken en banc, and wrote separately to emphasize his views on why the Supreme Court’s decision in International Brotherhood of Electrical Workers v. NLRB, 341 U.S. 694 (1951), was not binding in this case.

 

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/11/17-73210.pdf

Bill Signed by Governor (9/11/20)

 

  • AB 2147 by Assemblymember Eloise Gomez Reyes (D-San Bernardino) – Convictions: expungement: incarcerated individual hand crews.

 

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