Labor & Employment

In a case governed by federal law, the arbitrator not the court decides whether the defendant has waived arbitration at least by acts other than participation in litigation.  But under California law, the court decides issues of waiver.  (CCP 1281.2(a).)  In this case, despite a choice of FAA law in the arbitration clause, California law governed this issue because plaintiffs'… Read More

The employer properly computed overtime pay in accordance for pay periods in which it paid plaintiff an hourly wage and a percentage bonus on sales.  The employer used the method prescribed for FSLA overtime (29 CFR 778.210), applying instead the DLSE's Enforcement Manual method (section 49.2.4) would result in an improper overtime on overtime since the bonus already was computed… Read More

Under Lab. Code 204(d), wages must be paid to workers paid on a weekly basis within 7 calendar days after the end of the payroll period.  This decision holds that CCP 12a applies so as to extend the 7-day deadline for payment to the next business day if the deadline falls on a Saturday, Sunday or holiday. Read More

An employee who engages in sales activities for the employer in a fixed location at which the employer exercises control and supervision over the employee, by requiring the employee to clock in and out and other measures is not subject to the outside salesman exemption to Labor Code wage and hour provisions.  The exemption was intended to shield employers from… Read More

Following Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729, this decision holds that Labor Code wage and hour provisions do not apply to governmental entities.  Here, the San Diego Convention Center Corp. was a governmental agrency established by the City of San Diego to manage its convention center.  Accordingly, the plaintiff ex-employee could not prevail on meal and… Read More

Lab. Code 2778 codifies the ABC test of employment for wage and hour purposes for most California worders, but expressly exempts real estate licenses, stating that their status is determined under Bus. & Prof. Code 10032 which in turn incorporates the test stated in Unemployment Ins. Code 650 and 13004.1.  Under that test, a real estate agent is an independent… Read More

This decision holds that at least in NLRB cases, the NLRB's showing of a likelihood of success on the merits does not give rise to a presumption of irreparable harm.  However, facts sufficient to establish the probability of success may give rise to a non-mandatory inference of irreparable harm depending on the nature of the unfair labor practice involved. Read More

This case discusses the  disputes are "capable of repetition, yet evading review" exception to the rule normally requiring dismissal of moot cases.  To fall within the exception, the action or appeal must be of inherently limited duration and there is a reasonable expectation that the appellant will be subjected to the same type of order in the future.  This case… Read More

The Federal Motor Carrier Safety Administration's regulation interpreting 49 U.S.C. § 31141(c) is given retroactive effect so that federal law preempts even meal and rest break claims that the trucker plaintiffs filed before the regulation was adopted.  The preemption regulation was intended to and does apply regardless of when the alleged meal and rest break violation occurred. Read More

Employer filed an untimely appeal from a Labor Commissioner ruling ordering the employer to pay a substantial sum to the plaintiff employee.  After the untimely appeal was dismissed, the trial court properly ordered the bond forfeited to the employee and entered judgment in the bond amount against the employer.  Though filing a bond is a prerequisite to the trial court's… Read More

This decision holds that an arbitration agreement in an employment contract was unconscionable and therefore unenforceable because (1) it did not explain and separately provide for waiver of the employee's right to sue in court to enforce his individual PAGA claim (as opposed to the non-waivable right to sue under PAGA for the benefit of other employees), and (2) in… Read More

Plaintiff raised a triable issue of fact precluding summary judgment on her disability discrimination claim.  Defendant fired her because she failed a physical exam which allowed an inference that defendant regarded plaintiff as disabled due to balance and strength deficits in her right leg as shown on the physical exam.  Plaintiff also raised a triable issue as to whether she… Read More

Under Lab. Code 925(a)(1), an employer may not require an employee to agree to adjudicate in another state a dispute arising in California.  This decision holds that the provision does not prohibit a court or arbitrator in another state from adjudicating whether section 925 applies.  Here, Zhang was a full partner of Dentons, so there was ample room for questioning… Read More

Following Light v. California Department of Parks & Recreation (2017) 14 Cal.App.5th 75 and looking holistically at the evidence, plaintiff raised a triable issue of fact precluding summary judgment on her sex discrimination and retaliation claims.  The defendant was not entitled to a presumption of nondiscrimination based on the same actor (hiring and firing) her since the hiring was tied… Read More

A school owes its minor students a duty to take reasonable measures to protect them against foreseeable harm from third parties.  So, while the school cannot be held vicariously liable for an employee's sexual abuse of a student (because sexual abuse is outside the course and scope of employment), the school may be held liable for negligent hiring, supervision, and… Read More

A school district is not a “person” who is in a “business, service, or professional relationship” with its students and so is not liable under Civ. Code 51.9 for sexual harassment of a student by a teacher. Read More

This decision holds that at least when the employer can and does capture time worked to the exact minute, it cannot justify not paying an employee for every minute worked by relying on a facially neutral policy of rounding time to the nearest 15 minutes.  California law requires payment of employees for all time worked, and disallows any de minimus… Read More

Reversing summary judgment on plaintiff's whistleblower retaliation claims under Lab. Code 1102.5, this decision holds that (a) the employee's reports to his supervisor and to the federal contracting officer that he thought he was being asked to prepare reports that violated NEPA was activity protected by section 1102.5--even though plaintiff claimed that the persons he reported to were wrong-doers. Read More

This decision reverses a judgment for the employee in a suit for unpaid overtime wages because of a botched special verdict question regarding the employer's affirmative defense that the employee was an exempt executive under Wage Order No. 5.  The question asked only if the employee spent more than 50% of her time on exempt duties.  The question overemphasized the… Read More

On remand after Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995 held that 8 of Bonni's 10 retaliation claims arose from protected activity under CCP 425.16(e), this decision holds that the absolute litigation privilege precludes Bonni from proving a probability of success on those 8 claims.  Defendant's reports to the Medical Board are statutorily required and hence subject… Read More