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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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Doe v. The Regents of the U. of Cal. (CA1/3 A161546 6/24/22) Title IX/Indispensable Party


John Doe filed a petition for writ of mandate against the Regents of the University of California (the University), seeking to set aside the University’s decision to discipline John for sexually assaulting Jane Roe.  The trial court granted the petition, finding John was not afforded procedural due process during the University’s investigation of Jane’s complaint.  Jane, who was not a party in John’s writ case, moved to vacate the mandate order on the ground that the order is void because she did not receive notice of, and an opportunity to participate in, the writ proceeding.  The trial court denied Jane’s motion.  We acknowledge that Jane’s interests were affected by the mandate proceeding, such that she may have been a real party in interest or a necessary party, but she has not established that she was an indispensable party.  Nor has she established that the absence of even an indispensable party is grounds to void a judgment.  We accordingly affirm.


County of Sonoma v. Pub. Employment Relations Bd. (CA1/3 A163100 6/23/22) PERB/Meyers-Milias-Brown Act


The Meyers-Milias-Brown Act (MMBA; Gov. Code, §3500 et seq.; undesignated statutory references are to the Government Code) requires public agencies to meet and confer, i.e., bargain, in good faith with recognized employee organizations regarding changes to wages, hours, and other terms and conditions of employment — matters within the scope of the organizations’ representation.  (§§ 3504, 3506.5, subd. (c).)  The Sonoma County Deputy Sheriffs’ Association (DSA) and Sonoma County Law Enforcement Association (SCLEA; collectively, Associations) filed unfair practice complaints alleging the County of Sonoma (County) violated the MMBA when its board of supervisors (Board) placed Measure P on the November 2020 ballot.  The measure, which the voters ultimately approved, amends the Sonoma County Code (SCC) to enhance the investigative and oversight authority of the County’s Independent Office of Law Enforcement Review and Outreach (IOLERO) over the Sonoma County Sheriff-Coroner office (Sheriff).  The Associations alleged the Board’s decision to place Measure P on the ballot significantly and adversely affected their members’ working conditions, such as discipline and investigation criteria and procedures; thus, the County was required to bargain prior to placement of the measure on the ballot.


The Public Employment Relations Board (PERB), which has jurisdiction over MMBA claims (City of Palo Alto v. Public Employment Relations Bd. (2016) 5 Cal.App.5th 1271, 1287 (Palo Alto)), agreed.  It concluded that, before placing the measure on the ballot, the County was required to bargain with the Associations regarding provisions relating to the investigation and discipline of employees.  These included provisions granting IOLERO authority to: conduct independent investigations, recommend discipline of employees under investigation, subpoena records or testimony, personally observe Sheriff investigations, and review officer discipline records.  (SCC §§ 2-392, subd. (d)(2), 2-394, subds. (b)(3), (b)(4), (b)(5)(ii), (vii)–(ix), (e)(2), and (f).)  PERB declared these provisions void and unenforceable against any employees represented by the Associations.  The County filed a petition for writ of extraordinary relief, and we granted writ of review.  (§ 3509.5; Code Civ. Proc., § 1068, subd. (a).)


We conclude PERB failed to consider whether the decision to place certain Measure P provisions on the ballot significantly and adversely affected the working conditions of the Associations’ members.  (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638 (Claremont).)  Having omitted that analysis, PERB erred in determining the decision was a matter within the scope of representation under the MMBA and thereby subject to collective bargaining.  We further conclude PERB exceeded its authority by issuing a remedial order declaring voter-approved Measure P provisions void and unenforceable. Thus, we annul PERB’s finding that the County violated its decisional bargaining obligations; we also annul PERB’s remedial order declaring Measure P provisions void and unenforceable.  (§ 3509.5, subd. (b); Code Civ. Proc., § 1075.)  We remand for PERB to strike its remedy and to consider whether the decision to place the identified Measure P provisions on the ballot significantly and adversely affected the working conditions of the Associations’ members.  We affirm the remainder of PERB’s decision.


Allen v. Santa Clara Cty. CPOA (9th Cir. 19-17217 6/23/22) Pre-Janus Agency Fees


The panel affirmed the district court’s dismissal of a claim for monetary relief bought pursuant to 42 U.S.C. § 1983 by public-sector employees against their union and the County of Santa Clara, holding that municipalities are entitled to a good faith defense to a suit for a refund of mandatory agency fees under § 1983.


In light of Janus v. American Federation of State, County, & Municipal Employees, Council 31, 138 S. Ct. 2448 (2018), which held that the compulsory collection of agency fees by unions violates the First Amendment, several public-sector employees (“Employees”) filed a class action lawsuit under § 1983 seeking to retroactively recover any agency fees taken from their salaries by the Santa Clara County Correctional Peace Officers Association and Santa Clara County. The district court dismissed the action against both parties, holding that their “good faith” reliance on pre-Janus law meant that they need not return the agency fees.


Following the district court’s dismissal, this court held in Danielson v. Inslee, 945 F.3d 1096 (9th Cir. 2019), that private parties, including unions, may invoke an affirmative defense of good faith to retrospective monetary liability under § 1983, where they acted in direct reliance on then-binding Supreme Court precedent and presumptively-valid state law. The Employees conceded that Danielson resolved their claims against their union.


The panel concluded that, because unions get a good faith defense under Danielson to a claim for a refund of pre-Janus agency fees, and municipalities’ tort liability for proprietary actions is the same as private parties, Santa Clara County was also entitled to a good faith defense to retrospective § 1983 liability for collecting pre-Janus agency fees. The panel explained that Danielson’s reasoning— which relied on precedent and principles of equality and fairness—also applied with equal force to municipalities.


Concurring, Judge Bumatay agreed that the panel was bound by Danielson, but wrote that Danielson deviated from precedent by asserting that the existence of § 1983 defenses turns not on the strictures of common law, but on principles of equality and fairness. Judge Bumatay also concluded that, under the common law as it stood in 1871, it appeared that Santa Clara County would receive immunity. However, Judge Bumatay wrote that, reaching the right result was no excuse for shifting focus away from the common law inquiry required by the Supreme Court and allowing judges to substitute their own policy preferences for the mandates of Congress.


Bill Signed by Governor (6/21/22)


AB 2662 by Assemblymember Ash Kalra (D-San Jose). Department of Fair Employment and Housing 

Garcia v. Super. Ct. (CA2/5 B315701 6/21/22) Meal and Rest Breaks/Pre-FMCSA Order


In a December 28, 2018, order, the Federal Motor Carrier Safety Administration (FMCSA) concluded that California’s meal and rest break rules were preempted under the Motor Carrier Safety Act of 1984 (49 U.S.C. § 31101 et seq.).  Petitioners contend that this decision does not apply to bar meal and rest break claims arising from conduct that predated the order.  We agree.

Meza v. Pacific Bell Telephone Co. (CA2/3 B317119 6/17/22) PAGA


Dave Meza filed this consolidated class action lawsuit against his former employer, Pacific Bell Telephone Company (Pacific Bell).  Meza alleged Pacific Bell violated California law by failing to provide lawful meal and rest periods and failing to provide lawful itemized wage statements among other Labor Code violations. Meza appeals four trial court orders:  (1) an order denying class certification to five meal and rest period classes (the class certification order); (2) an order granting summary adjudication of Meza’s claim relating to wage statements under section 226, subdivision (a)(9) (the wage statement order); (3) an order striking Meza’s claim under section 226, subdivision (a)(6) (the order to strike); and (4) an order granting summary adjudication of Meza’s claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (§ 2698 et seq.) (the PAGA order).


We first consider whether each order is appealable.  We conclude that Meza’s appeal of the order to strike must be dismissed because Meza did not include it in his notice of appeal.  We agree that the other orders are appealable under the death knell doctrine, which allows immediate appeals of certain interlocutory orders that resolve all representative claims but leave individual claims intact. 


On the merits, we conclude that the trial court erred in refusing to certify the meal and rest period classes based on its conclusion that common issues do not predominate.  On remand, however, the trial court must consider whether Meza is an adequate class representative, an issue it did not reach in its previous ruling.


We affirm the wage statement order and the PAGA order.  In the published portion of the opinion, we explain that the trial court correctly granted summary adjudication of Meza’s wage statement claim because Pacific Bell’s wage statements do not violate the Labor Code.  The trial court also correctly granted summary adjudication of the PAGA claim because it was barred by claim preclusion in light of the settlement and dismissal of a previous PAGA lawsuit.

Viking River Cruises, Inc. v. Moriana (US 20–1573 6/15/22) FAA Preemption/PAGA


The question for decision is whether the Federal Arbitration Act, 9 U. S. C. §1 et seq., preempts a rule of California law that invalidates contractual waivers of the right to assert representative claims under California’s Labor Code Private Attorneys General Act of 2004, Cal. Lab. Code §2698 et seq. PAGA enlists employees as private attorneys general to enforce California labor law. By its terms, PAGA authorizes any “aggrieved employee” to initiate an action against a former employer “on behalf of himself or herself and other current or former employees” to obtain civil penalties that previously could have been recovered only by the State in an enforcement action brought by California’s Labor and Workforce Development Agency (LWDA). California precedent holds that a PAGA suit is a “ ‘representative action’ ” in which the employee plaintiff sues as an “ ‘agent or proxy’ ” of the State. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 380. California precedent also interprets the statute to contain what is effectively a rule of claim joinder—allowing a party to unite multiple claims against an opposing party in a single action. An employee with PAGA standing may “seek any civil penalties the state can, including penalties for violations involving employees other than the PAGA litigant herself.” ZB, N. A. v. Superior Court, 8 Cal. 5th 175, 185.


Respondent Angie Moriana filed a PAGA action against her former employer Viking River Cruises, alleging a California Labor Code violation. She also asserted a wide array of other violations allegedly sustained by other Viking employees. Moriana’s employment contract with Viking contained a mandatory arbitration agreement. Important here, that agreement contained both a “Class Action Waiver”—providing that the parties could not bring any dispute as a class, collective, or representative action under PAGA—and a severability clause—specifying that if the waiver was found invalid, such a dispute would presumptively be litigated in court. Under the severability clause, any “portion” of the waiver that remained valid would be “enforced in arbitration.” Viking moved to compel arbitration of Moriana’s individual PAGA claim and to dismiss her other PAGA claims. Applying California’s Iskanian precedent, the California courts denied that motion, holding that categorical waivers of PAGA standing are contrary to California policy and that PAGA claims cannot be split into arbitrable “individual” claims and nonarbitrable “representative” claims. This Court granted certiorari to decide whether the FAA preempts the California rule.


Held: The FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate. Pp. 7–21.


(a) Based on the principle that “[a]rbitration is strictly ‘a matter of consent,’ ” Granite Rock Co. v. Teamsters, 561 U. S. 287, 299, this Court has held that “a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so,” Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp., 559 U. S. 662, 684. Because class-action arbitration mandates procedural changes that are inconsistent with the individualized and informal mode of bilateral arbitration contemplated by the FAA, see AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 347, class procedures cannot be imposed by state law without presenting unwilling parties with an unacceptable choice between being compelled to arbitrate using such procedures and forgoing arbitration all together. Viking contends that the Court’s FAA precedents require enforcement of contractual provisions waiving the right to bring PAGA actions because PAGA creates a form of class or collective proceeding. If this is correct, Iskanian’s prohibition on PAGA waivers presents parties with an impermissible choice: Either arbitrate disputes using a form of class procedures, or do not arbitrate at all. Moriana maintains that any conflict between Iskanian and the FAA is illusory because PAGA creates nothing more than a substantive cause of action.


This Court disagrees with both characterizations of the statute. Moriana’s premise that PAGA creates a unitary private cause of action is irreconcilable with the structure of the statute and the ordinary legal meaning of the word “claim.” A PAGA action asserting multiple violations under California’s Labor Code affecting a range of different employees does not constitute “a single claim” in even the broadest possible sense. Viking’s position, on the other hand, elides important structural differences between PAGA actions and class actions. A class-action plaintiff can raise a multitude of claims because he or she represents a multitude of absent individuals; a PAGA plaintiff, by contrast, represents a single principal, the LWDA, that has a multitude of claims. As a result, PAGA suits exhibit virtually none of the procedural characteristics of class actions.


This Court’s FAA precedents treat bilateral arbitration as the prototype of the individualized and informal form of arbitration protected from undue state interference by the FAA. See, e.g., Epic Systems Corp. v. Lewis, 584 U. S. ___, ___. Viking posits that a proceeding is “bilateral” only if it involves two and only two parties and “is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 348. Thus, Iskanian’s prohibition on PAGA waivers is inconsistent with the FAA because PAGA creates an intrinsically representational form of action and Iskanian requires parties either to arbitrate in that format or forgo arbitration altogether.


This Court disagrees. Nothing in the FAA establishes a categorical rule mandating enforcement of waivers of standing to assert claims on behalf of absent principals. Non-class representative actions in which a single agent litigates on behalf of a single principal necessarily deviate from the strict ideal of bilateral dispute resolution posited by Viking, but this Court has never held that the FAA imposes a duty on States to render all forms of representative standing waivable by contract or that such suits deviate from the norm of bilateral arbitration. Unlike procedures distinctive to multiparty litigation, single-principal, single-agent representative actions are “bilateral” in two registers: They involve the rights of only the absent real party in interest and the defendant, and litigation need only be conducted by the agent-plaintiff and the defendant. Nothing in this Court’s precedent suggests that in enacting the FAA, Congress intended to require States to reshape their agency law governing who can assert claims on behalf of whom to ensure that parties will never have to arbitrate disputes in a proceeding that deviates from bilateral arbitration in the strictest sense. Pp. 7–17.


(b) PAGA’s built-in mechanism of claim joinder is in conflict with the FAA. Iskanian’s prohibition on contractual division of PAGA actions into constituent claims unduly circumscribes the freedom of parties to determine “the issues subject to arbitration” and “the rules by which they will arbitrate,” Lamps Plus, Inc. v. Varela, 587 U. S. ____, ____, and does so in a way that violates the fundamental principle that “arbitration is a matter of consent,” Stolt-Nielsen, 559 U. S., at 684. For that reason, state law cannot condition the enforceability of an agreement to arbitrate on the availability of a procedural mechanism that would permit a party to expand the scope of the anticipated arbitration by introducing claims that the parties did not jointly agree to arbitrate. A state rule imposing an expansive rule of joinder in the arbitral context would defeat the ability of parties to control which claims are subject to arbitration by permitting parties to superadd new claims to the proceeding, regardless of whether the agreement committed those claims to arbitration. When made compulsory by way of Iskanian, PAGA’s joinder rule functions in exactly this way. The effect is to coerce parties into withholding PAGA claims from arbitration. Iskanian’s indivisibility rule effectively coerces parties to opt for a judicial forum rather than “forgo[ing] the procedural rigor and appellate review of the courts to realize the benefits of private dispute resolution.” Stolt-Nielsen, 559 U. S., at 685. Pp. 17–19.


(c) Under this Courts holding, Iskanian’s prohibition on wholesale waivers of PAGA claims is not preempted by the FAA. But Iskanian’s rule that PAGA actions cannot be divided into individual and non-individual claims is preempted, so Viking was entitled to compel arbitration of Moriana’s individual claim. PAGA provides no mechanism to enable a court to adjudicate non-individual PAGA claims once an individual claim has been committed to a separate proceeding. And under PAGA’s standing requirement, a plaintiff has standing to maintain non-individual PAGA claims in an action only by virtue of also maintaining an individual claim in that action. As a result, Moriana would lack statutory standing to maintain her non-individual claims in court, and the correct course was to dismiss her remaining claims. Pp. 20–21.


Reversed and remanded.


ALITO, J., delivered the opinion of the Court, in which BREYER, SOTOMAYOR, KAGAN, and GORSUCH, JJ., joined, in which ROBERTS, C. J., joined as to Parts I and III, and in which KAVANAUGH and BARRETT, JJ., joined as to Part III. SOTOMAYOR, J., filed a concurring opinion. BARRETT, J., filed an opinion concurring in part and concurring in the judgment, in which KAVANAUGH, J., joined, and in which ROBERTS, C. J, joined as to all but the footnote. THOMAS, J., filed a dissenting opinion.

Johnson v. WinCo Foods (9th Cir. 21-55501 6/13/22) Job Applicants/Pre-Employment Drug Testing


The panel affirmed the district court’s judgment in favor of WinCo Foods, LLC in a class action brought by Alfred Johnson on behalf of himself and other WinCo employees in California (“plaintiffs”), claiming compensation as an employee for the time and expense of taking a drug test as a successful applicant for employment.


The district court entered judgment in favor of WinCo on the ground that under California law, plaintiffs were not yet employees when they took the drug test.


Plaintiffs argued that because the tests were administered under the control of the employer, plaintiffs must be regarded as employees, as California law applies a control test to determine whether an employment relationship existed. The panel rejected this contention because control over a drug test as part of the job application process is not control over the performance of the job. In this case, the class members were not performing work for an employer when they took the preemployment drug test; they were instead applying for the job, and they were not yet employees.


Plaintiffs also contended under California law that class members were employees under a “contract theory,” and that the drug test should be regarded as a “condition subsequent” to their hiring as employees pursuant to Cal. Civil Code § 1438, meaning that the employment contract was formed before the drug test and WinCo could terminate the employment relationship in the event of a drug test failure. The panel also rejected this contention, and held that there was no condition subsequent because plaintiffs were not hired until they established they were qualified. In this case there was no written contract, and the drug test was a condition precedent. Applying the principles of California contract law, the panel concluded that the class members did not become employees until they satisfied the condition of passing the employment drug test.

Belaustegui v. ILWU (9th Cir. 21-55434 6/7/22) USERRA Discrimination


The panel vacated the district court’s summary judgment in favor of defendants in an action brought under the Uniformed Services Employment and Reemployment Rights Act by a longshore worker who returned to employment following service in the U.S. Air Force, and remanded.


The plaintiff sought promotion to the position he claimed he likely would have attained had he not served in the military. The panel held that certain hours credits and elevation in longshore worker status, as set forth in a collective bargaining agreement, qualified as “benefits of employment” under USERRA.


The panel further held that, under the “escalator principle,” the plaintiff could pursue a USERRA discrimination claim based on the defendants’ alleged failure to reinstate him to the “Class B” position he was reasonably certain to have attained absent his military service.


The panel left to the district court to decide in the first instance whether a five-year statutory limitation based on the duration of the plaintiff’s military service applied.

People v. Maplebear, Inc. (CA4/1 D079209M, filed 5/18/22, mod. 6/6/22) Misclassification/Arbitration



            It is ordered that the opinion filed herein on May 18, 2022, be modified as follows:

            In the last paragraph on page 2, in the last sentence, which begins “Instacart employs two types of Shoppers…,” the word “employs” is deleted and replaced with “engages.”

            There is no change in the judgment.

            Respondent’s petition for rehearing is denied.




The San Diego City Attorney brought an enforcement action under the Unfair Competition Law, Business and Professions Code sections 17200, et seq. (UCL), on behalf of the People of the State of California against Maplebear Inc. DBA Instacart (Instacart).  In their complaint, the People alleged that Instacart unlawfully misclassified its employees as independent contractors in order to deny workers employee protections, harming its alleged employees and the public at large through a loss of significant payroll tax revenue, and giving Instacart an unfair advantage against its competitors.  In response to the complaint, Instacart brought a motion to compel arbitration of a portion of the City’s action based on its agreements with the individuals it hires, called Shoppers.  The trial court denied the motion, concluding Instacart failed to meet its burden to show a valid agreement to arbitrate between it and the People. 


Instacart challenges the court’s order, asserting that even though the People are not a party to its Shopper agreements, they are bound by its arbitration provision to the extent they seek injunctive relief and restitution because these remedies are “primarily for the benefit of” the Shoppers.  As we shall explain, we reject this argument and affirm the trial court’s order.

Southwest Airlines Co. v. Saxon (US 21-309 6/6/22) Arbitration/Airline Cargo Loaders


Respondent Latrice Saxon, a ramp supervisor for Southwest Airlines, trains and supervises teams of ramp agents who physically load and unload cargo on and off airplanes that travel across the country. Like many ramp supervisors, Saxon also frequently loads and unloads cargo alongside the ramp agents. Saxon came to believe that Southwest was failing to pay proper overtime wages to ramp supervisors, and she brought a putative class action against Southwest under the Fair Labor Standards Act of 1938. Because Saxon’s employment contract required her to arbitrate wage disputes individually, Southwest sought to enforce its arbitration agreement and moved to dismiss. In response, Saxon claimed that ramp supervisors were a “class of workers engaged in foreign or interstate commerce” and therefore exempt from the Federal Arbitration Act’s coverage. 9 U. S. C. §1. The District Court disagreed, holding that only those involved in “actual transportation,” and not those who merely handle goods, fell within §1’s exemption. The Court of Appeals reversed. It held that “[t]he act of loading cargo onto a vehicle to be transported interstate is itself commerce, as that term was understood at the time of the [FAA’s] enactment in 1925.” 993 F. 3d 492, 494.


Held: Saxon belongs to a “class of workers engaged in foreign or interstate commerce” to which §1’s exemption applies. Pp. 3–11.


(a) This Court interprets §1’s language according to its “ordinary, contemporary, common meaning.” Sandifer v. United States Steel Corp., 571 U. S. 220, 227. To discern that ordinary meaning, those words “ ‘must be read’ ” and interpreted “ ‘in their context.’ ” Parker Drilling Management Services, Ltd. v. Newton, 587 U. S. ___, ___. Pp. 3–7.


The parties dispute how to define the relevant “class of workers.” Saxon argues that because the air transportation industry engages in interstate commerce, airline employees, as a whole, constitute a “class of workers” covered by §1. By contrast, Southwest maintains that the relevant class includes only those airline employees actually engaged day-to-day in interstate commerce. This Court rejects Saxon’s industrywide approach. By referring to “workers” rather than “employees,” the FAA directs attention to “the performance of work.” New Prime Inc. v. Oliveira, 586 U. S. ___, ___. And the word “engaged” similarly emphasizes the actual work that class members typically carry out. Saxon is therefore a member of a “class of workers” based on what she frequently does at Southwest—that is, physically loading and unloading cargo on and off airplanes—and not on what Southwest does generally. Pp. 3–4.


The parties also dispute whether the class of airplane cargo loaders is “engaged in foreign or interstate commerce.” It is. To be “engaged” in “commerce” means to be directly involved in transporting goods across state or international borders. Thus, any class of workers so engaged falls within §1’s exemption. Airplane cargo loaders are such a class.


Context confirms this reading. In Circuit City Stores, Inc. v. Adams, 532 U. S. 105, the Court applied two well-settled canons of statutory interpretation to hold that §1 exempted only “transportation workers,” rather than all employees. The Court indicated that any such exempted worker must at least play a direct and “necessary role in the free flow of goods” across borders. Id., at 121. Cargo loaders exhibit this central feature of a transportation worker.


A final piece of statutory context further confirms that cargo loading is part of cross-border “commerce.” Section 1 of the FAA defines exempted “maritime transactions” to include “agreements relating to wharfage . . . or any other matters in foreign commerce.” Thus, if an “agreemen[t] relating to wharfage”—i.e., money paid to access a cargo loading facility—is a “matte[r] in foreign commerce,” it stands to reason that an individual who actually loads cargo on vehicles traveling across borders is himself engaged in such commerce. Pp. 4–7.


(b) Both parties proffer arguments disagreeing with this analysis, but none is convincing. Pp. 7–11.


Saxon thinks the relevant “class of workers” should include all airline employees, not just cargo loaders. For support, she argues that “railroad employees” and “seamen”—two classes of workers listed immediately before §1’s catchall provision—refer generally to employees in those industries. Saxon’s premise is flawed. “Seamen” is not an industrywide category but instead a subset of workers engaged in the maritime shipping industry. For example, “seamen” did not include all those employed by companies engaged in maritime shipping when the FAA was enacted. Pp. 8–9.


Southwest’s three counterarguments all fail. First, Southwest narrowly construes §1’s catchall category—“any other class of workers engaged in foreign or interstate commerce”—to include only workers who physically transport goods or people across foreign or international boundaries. Southwest relies on the definition of “seamen” as only those “employed on board a vessel,” McDermott Int’l, Inc. v. Wilander, 498 U. S. 337, 346, and argues that the catchall category should be read along the same lines to exclude airline workers, like Saxon, who do not ride aboard an airplane in interstate or foreign transit. But Southwest’s acknowledgment that the statute’s reference to “railroad employees” is somewhat ambiguous in effect concedes that the three statutory categories in §1—“seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce”—do not share the attribute that Southwest would like read into the catchall provision. Well-settled canons of statutory interpretation neither demand nor permit limiting a broadly worded catchall phrase based on an attribute that inheres in only one of the list’s preceding specific terms. Second, Southwest argues that cargo loading is similar to other activities that this Court has found to lack a necessary nexus to interstate commerce in other contexts. But the cases Southwest invokes all addressed activities far more removed from interstate commerce than physically loading cargo directly on and off an airplane headed out of State. See, e.g., Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186. Finally, Southwest argues that the FAA’s “proarbitration purposes” counsel in favor of an interpretation that errs on the side of fewer §1 exemptions. Here, however, plain text suffices to show that airplane cargo loaders, and thus ramp supervisors who frequently load and unload cargo, are exempt from the FAA’s scope under §1. Pp. 9–11.


993 F. 3d 492, affirmed.


THOMAS, J., delivered the opinion of the Court, in which all other Members joined, except BARRETT, J., who took no part in the consideration or decision of the case.

Owino v. CoreCivic (9th Cir. 21-55221 6/3/22) Class Certification / Victims of Trafficking and Violence Protection Act


The panel affirmed the district court’s order certifying three classes in an action brought under the Victims of Trafficking and Violence Protection Act of 2000 by individuals who were incarcerated in private immigration detention facilities owned and operated by CoreCivic, Inc., a for-profit corporation.


U.S. Immigration and Customs Enforcement contracts with CoreCivic to incarcerate detained immigrants in 24 facilities across 11 states. Plaintiffs, detained solely due to their immigration status and neither charged with, nor convicted of, any crime, alleged that the overseers of their private detention facilities forced them to perform labor against their will and without adequate compensation in violation of the Victims of Trafficking and Violence Protection Act of 2000, the California Trafficking Victims Protection Act (“California TVPA"), various provisions of the California Labor Code, and other state laws.


The panel held that the district court properly exercised its discretion in certifying a California Labor Law Class, a California Forced Labor Class, and a National Forced Labor Class.


The panel held that, as to the California Forced Labor Class, plaintiffs submitted sufficient proof of a classwide policy of forced labor to establish commonality. Plaintiff established predominance because the claims of the class members all depended on common questions of law and fact. The panel agreed with the district court that narrowing the California Forced Labor Class based on the California TVPA’s statute of limitations was not required at the class certification stage.


For the same reasons as above, the panel held that, as to the National Forced Labor Class, the district court did not abuse its discretion in concluding that plaintiffs presented significant proof of a classwide policy of forced labor and that common questions predominated over individual ones. The panel held that under Moser v. Benefytt, Inc., 8 F.4th 872 (9th Cir. 2021), CoreCivic’s personal jurisdiction challenge with respect to the claim of non-California-facility class members was an issue for the district court to resolve. The panel declined to vacate the certification of the National Forced Labor Class, but it held that CoreCivic retained its personal jurisdiction defense, and the panel remanded the personal jurisdiction question to the district court for consideration at the appropriate time.


As to the California Labor Law Class, the panel held that plaintiffs established that damages were capable of measurement on a classwide basis, and they did not need to present a fully formed damages model when discovery was not yet complete. The panel agreed with the district court that the named plaintiffs were typical of the class they sought to represent and their allegations, if true, fit within California’s Unfair Competition Law and the state labor law provisions they invoked. Narrowing the class based on statute of limitations was not required at the certification stage. The panel held that the district court did not abuse its discretion in certifying a failure-to-pay and waiting-time claim, which was affirmatively interwoven in plaintiffs’


The Association of Deputy District Attorneys etc. v. Gascon (CA2/7 B310845 6/2/22) Deputy District Attorneys’ Challenge of Superior’s Directives


This appeal raises two questions concerning the scope of prosecutorial discretion.  The first is:  Can the voters, through the initiative process, or the Legislature, through legislation, require prosecutors to plead and prove prior convictions to qualify a defendant for the alternative sentencing scheme prescribed by the three strikes law?  Our answer:  Yes for pleading, no for proving.  The second question is:  Can courts require prosecutors, when moving to eliminate (by dismissal or amendment) from a charging document allegations of prior strikes and sentence enhancements, to base the motion on individualized factors concerning the defendant or the alleged crime?  Our answer:  No, but courts do not have to grant those motions.  (See People v. Nazir (June 2, 2022, B310806)       Cal.App.5th       (Nazir).)


These questions arise out of the decision on November 3, 2020 by the voters of Los Angeles County to elect George Gascón as their district attorney.  In December 2020 the new district attorney adopted several “Special Directives” concerning sentencing, sentence enhancements, and resentencing that made significant changes to the policies of his predecessor.  In essence, the Special Directives prohibited deputy district attorneys in most cases from alleging prior serious or violent felony convictions (commonly referred to as “strikes”) under the three strikes law or sentence enhancements and required deputy district attorneys in pending cases to move to dismiss or seek leave to remove from the charging document allegations of strikes and sentence enhancements.  The Special Directives’ stated objectives, through these policies, were to promote the “interests of justice and public safety” by reducing “long sentences” that “do little” to deter crime.


The Association of Deputy District Attorneys for Los Angeles County (ADDA) is the certified exclusive bargaining representative for Bargaining Unit 801, which consists of approximately 800 deputy district attorneys in Los Angeles County.  ADDA sought a writ of mandate and a preliminary injunction to prevent the district attorney from enforcing the Special Directives, arguing they violated a prosecutor’s duties to “plead and prove” prior strikes under the three strikes law (Pen. Code, §§ 667, subds. (b)‑(i), 1170.12, subds. (a)‑(d)); to exercise prosecutorial discretion in alleging and moving to dismiss under section 1385 prior strikes and sentence enhancements on a case-by-case basis; to continue to prosecute alleged strikes and sentence enhancements after a court denies a motion to dismiss under section 1385; and to prosecute certain special circumstances allegations.  The trial court largely agreed with ADDA and issued a preliminary injunction enjoining the district attorney from enforcing certain aspects of the Special Directives. 


In this appeal the district attorney argues that ADDA lacks standing to seek mandamus relief on behalf of its members, that he does not have a ministerial duty to comply with the legal duties ADDA alleges he violated, that the trial court’s preliminary injunction violates the doctrine of separation of powers, and that the balance of the harms does not support preliminary injunctive relief.  The district attorney did not challenge in the trial court, and does not challenge on appeal, the preliminary injunction’s application to special circumstances allegations.

On the issue of standing, we conclude ADDA has associational standing to seek relief on behalf of its members.  On the merits, we conclude the voters and the Legislature created a duty, enforceable in mandamus, that requires prosecutors to plead prior serious or violent felony convictions to ensure the alternative sentencing scheme created by the three strikes law applies to repeat offenders.  This duty does not violate the separation of powers doctrine by materially infringing on a prosecutor’s charging discretion; to the contrary, the duty affirms the voters’ and the Legislature’s authority to prescribe more severe punishment for certain recidivists.  But we also conclude neither the voters nor the Legislature can create a duty enforceable in mandamus to require a prosecutor to prove allegations of prior serious or violent felony convictions, an inherently and immanently discretionary act.  Nor, we conclude, is mandamus available to compel a prosecutor to exercise his or her discretion in a particular way when moving to dismiss allegations of prior strikes or sentence enhancements under section 1385 or when seeking leave to amend a charging document.  Therefore, we affirm the trial court’s order in part and reverse it in part.

Ramirez v. Charter Communications, Inc. (SC S273802/B309408 review granted 6/1/22) Employment Arbitration

Petition for review after affirmance of order denying petition to compel arbitration. Did the Court of Appeal err in holding that a provision of an arbitration agreement allowing for recovery of interim attorney’s fees after a successful motion to compel arbitration, was so substantively unconscionable that it rendered the arbitration agreement unenforceable? Review granted/brief due.


Court of Appeal Decision


Vatalaro v. County of Sacramento (CA3 C090896, filed 5/5/22, pub. ord. 6/1/22) Labor Code section 1102.5 Whistleblower Retaliation


After being terminated from a position with Sacramento County (the County), Cynthia J. Vatalaro sued the County for unlawful retaliation under Labor Code section 1102.5 (section 1102.5)—a statute that protects whistleblowing employees.  Under this statute, an employer cannot retaliate against an employee for disclosing information that the employee has reasonable cause to believe reveals a violation of a local, state, or federal law.  Vatalaro alleged that, in violation of this statute, the County retaliated against her after she reported that she was working below her service classification.


The County afterward filed a motion for summary judgment.  It contended that Vatalaro could not show that she had a reasonable belief, or any belief at all, that the information she disclosed evidenced a violation of any law.  The County added that, regardless, Vatalaro’s claim still failed because the County had a legitimate, nonretaliatory reason for terminating her—namely, she had been insubordinate, disrespectful, and dishonest.  The trial court, agreeing with the County on both these points, granted summary judgment in the County’s favor.


On appeal, Vatalaro alleges that the trial court was wrong on both these issues.  She first argues that the facts show she had a reasonable belief that the County violated the law in having her work below her service classification, even if her belief was incorrect.  She further argues that the County’s stated reason for terminating her was merely a pretext for retaliation.


We affirm, though on a ground somewhat different than those raised at the trial level.  The County, again, argued that Vatalaro’s claim failed for two reasons, including because the County showed it had a legitimate, nonretaliatory reason for terminating her.  But the relevant standard is not whether the County demonstrated it had such a reason; it is instead whether the County “demonstrate[d] by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.”  (Lab. Code, § 1102.6 (§ 1102.6).)  We requested supplemental briefing on this issue and, after reviewing the parties’ briefing and the record, we are satisfied that the County provided sufficient undisputed evidence to support summary judgment under the appropriate standard.

Ratha v. Phatthana Seafood (9th Cir. 18-55041 5/31/22) Trafficking Victims Protection Reauthorization Act


Plaintiffs-Appellants are Cambodian villagers who allege that they were trafficked into Thailand and subjected to forced labor at seafood processing factories. Plaintiffs allege that Thai companies perpetrated these offenses, and that companies present in the United States knowingly benefitted from their forced labor. Plaintiffs brought their claims under 18 U.S.C. § 1595,1 the civil remedy provision of the Trafficking Victims Protection Act (“TVPA”), as reauthorized and amended in the Trafficking Victims


Protection Reauthorization Act of 2003 and the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008.2 We are asked to determine the extraterritorial reach of § 1595 and to construe the terms of that provision. We assume without deciding that § 1595 may apply extraterritorially and conclude that Plaintiffs did not present a triable issue on the requirements for such application or on the merits of their claims. Therefore, the district court properly entered summary judgment against Plaintiffs. We also conclude that the district court did not abuse its discretion in denying Plaintiffs’ motion for an extension of time to respond to Defendants’ motions for summary judgment. We affirm.

Morgan v. Sundance, Inc. (US 21–328 5/23/22) Arbitration


Petitioner Robyn Morgan worked as an hourly employee at a Taco Bell franchise owned by respondent Sundance. When applying for the job, Morgan signed an agreement to arbitrate any employment dispute. Despite that agreement, Morgan filed a nationwide collective action asserting that Sundance had violated federal law regarding overtime payment. Sundance initially defended against the lawsuit as if no arbitration agreement existed, filing a motion to dismiss (which the District Court denied) and engaging in mediation (which was unsuccessful). Then—nearly eight months after Morgan filed the lawsuit— Sundance moved to stay the litigation and compel arbitration under the Federal Arbitration Act (FAA). Morgan opposed, arguing that Sundance had waived its right to arbitrate by litigating for so long.


The courts below applied Eighth Circuit precedent, under which a party waives its right to arbitration if it knew of the right; “acted inconsistently with that right”; and “prejudiced the other party by its inconsistent actions.” Erdman Co. v. Phoenix Land & Acquisition, LLC, 650 F. 3d 1115, 1117. The prejudice requirement is not a feature of federal waiver law generally. The Eighth Circuit adopted that requirement because of the “federal policy favoring arbitration.” Id., at 1120. Other courts have rejected such a requirement. This Court granted certiorari to resolve the split over whether federal courts may adopt an arbitration-specific waiver rule demanding a showing of prejudice.


Held: The Eighth Circuit erred in conditioning a waiver of the right to arbitrate on a showing of prejudice. Federal courts have generally resolved cases like this one as a matter of federal law, using the terminology of waiver. The parties dispute whether that framework is correct. Assuming without deciding that it is, federal courts may not create arbitration-specific variants of federal procedural rules, like those concerning waiver, based on the FAA’s “policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24. That policy “is merely an acknowledgment of the FAA’s commitment to overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.” Granite Rock Co. v. Teamsters, 561 U. S. 287, 302 (internal quotation marks omitted). Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind. But a court may not devise novel rules to favor arbitration over litigation. See Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 218–221. The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.


The text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one here. Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel arbitration—“shall be made and heard in the manner provided by law for the making and hearing of motions” (unless the statute says otherwise). A directive to treat arbitration applications “in the manner provided by law” for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Because the usual federal rule of waiver does not include a prejudice requirement, Section 6 instructs that prejudice is not a condition of finding that a party waived its right to stay litigation or compel arbitration under the FAA.


Stripped of its prejudice requirement, the Eighth Circuit’s current waiver inquiry would focus on Sundance’s conduct. Did Sundance knowingly relinquish the right to arbitrate by acting inconsistently with that right? On remand, the Court of Appeals may resolve that question, or determine that a different procedural framework (such as forfeiture) is appropriate. The Court’s sole holding today is that it may not make up a new procedural rule based on the FAA’s “policy favoring arbitration.”


Pp. 4–7. 992 F. 3d 711, vacated and remanded.


KAGAN, J., delivered the opinion for a unanimous Court.


Naranjo v. Spectrum Security Services, Inc. (SC S258966 5/23/22) Missed Meal Break Pay = Wages | Prejudgment Interest at 7%


California law requires employers to provide daily meal and rest breaks to most unsalaried employees.  If an employer unlawfully makes an employee work during all or part of a meal or rest period, the employer must pay the employee an additional hour of pay.  (Lab. Code, § 226.7, subd. (c); Industrial Welf. Com. wage order No. 4-2001, §§ 11(B), 12(B).)  The primary issue before us is whether this extra pay for missed breaks constitutes “wages” that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job (id., § 203).  We conclude, contrary to the Court of Appeal, that the answer is yes.  Although the extra pay is designed to compensate for the unlawful deprivation of a guaranteed break, it also compensates for the work the employee performed during the break period.  (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1104.)  The extra pay thus constitutes wages subject to the same timing and reporting rules as other forms of compensation for work. 


We also resolve a dispute over the rate of prejudgment interest that applies to amounts due for failure to provide meal and rest breaks.  Here, we agree with the Court of Appeal that the 7 percent default rate set by the state Constitution applies.  (See Cal. Const., art. XV, § 1.)

Unite Here Local 30 v. Sycuan Band (9th Cir. 21-55017 5/20/22) NLRA Preemption/Tribal Labor Relations Ordinance


The panel affirmed the district court’s judgment on the pleadings in favor of labor union Unite Here Local 30 and the district court’s dismissal of a counterclaim brought by the Sycuan Band of the Kumeyaay Nation, a federally recognized Indian tribe.


The union brought suit to compel arbitration of its allegation that Sycuan violated the labor provisions of the parties’ contract respecting the operation of a casino. Sycuan opposed arbitration principally because it believed that federal labor law preempted its contract with the State of California that had required it to enter into the contract with Unite Here. In its counterclaim, Sycuan sought a declaratory judgment that federal law preempted the labor organizing provisions of its contract with California, a gaming compact governed by the Indian Gaming Regulatory Act. These provisions required Sycuan to adopt and maintain a Tribal Labor Relations Ordinance (TLRO), which set forth the parties’ agreement about specific labor rights for casino employees and included an arbitration provision. Unite Here alleged that Sycuan violated the TLRO by refusing the union’s demands regarding its intention to organize the casino employees.


The panel held that the district court had original jurisdiction over Unite Here’s claims pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 185. The panel held that the district court had supplemental, but not original, jurisdiction over Sycuan’s counterclaim because the Declaratory Judgment Act does not confer jurisdiction, and § 301 of the Labor Management Relations Act could not confer federal question jurisdiction because Sycuan’s challenge was to the agreement between Sycuan and the State of California, rather than to a contract between an employer and a labor organization. The panel held that the district court did not abuse its discretion in declining to exercise its supplemental jurisdiction because adjudicating the counterclaim in federal court would interfere with the arbitrator’s authority. The panel concluded that the district court was correct that the arbitrator should decide issues of contract validity, and the counterclaim rested on an issue of contract validity. Accordingly, the district court’s declining to exercise supplemental jurisdiction served economy, convenience, and fairness. Further, as argued by the State of California in its amicus brief, Sycuan did not give the State notice before filing the counterclaim, as required by the gaming compact, and the State was not a party to this suit seeking to invalidate the compact.


Addressing contract formation, the panel held that Unite Here and Sycuan formed an agreement to arbitrate because, in the TLRA, Sycuan promised California that if any union made certain promises to the tribe, Sycuan would automatically enter into a bilateral contract with that union adopting the TLRO’s terms. The panel concluded that Unite Here made such promises, and a contract was formed, because the TLRO was essentially an open-ended offer to any union to enter into a bilateral contract.


With respect to the validity of the contract between United Here and Sycuan, the panel declined to address Sycuan’s argument that there was no enforceable promise to arbitrate because the National Labor Relations Act preempted the TLRO. The panel held that the preemption argument challenged the contract as a whole and therefore was a question for the arbitrator to decide. Rejecting Sycuan’s argument that arbitrating NLRA preemption would infringe on its tribal sovereign immunity, the panel concluded that in the TLRO there was an express waiver of sovereign immunity from suit for the purpose of compelling arbitration.

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