Labor & Employment

Lacy, an employee, filed a complaint with the state Department of Labor claiming her employer, Crestwood, had retaliated against her in violation of Lab. Code 98.7 for complaining about having been assaulted at work.  The DLSE commenced an investigation of the complaint.  Meanwhile, Crestwood filed a petition to compel arbitration under the arbitration clause in Lacy's employment contract.  The trial… Read More

Agreeing with decisions from many other districts, this decision holds that an employer cannot compel arbitration of its worker's PAGA claim, as the claim is by the state, not by the worker who signed the arbitration agreement.  Iskanian v. CLS Transportation (2014) 59 Cal.4th 348 remains good law and was not undermined by Epic Systems Corp. v. Lewis (2018) 138… Read More

In a FEHA suit, a prevailing defendant may not recover its fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Gov. Code, § 12965(b).)  The employer may compel arbitration of FEHA claims, but only if the arbitrator may award any remedy a… Read More

Because the employer did not keep adequate records to show how much of an employee's pay was based on commissions, the trial court correctly divided the entire compensation received by the employee during the week by 40 to determine his base pay for calculating the 150% of base pay owed for overtime work.  Had the employer kept better records, the… Read More

Under the Displaced Janitor Opportunity Act (Lab. Code 1060 et seq.) a successor janitorial company must hire the janitorial workers of a predecessor company at the same site for at least 60 days after taking over the site.  Here, the building owner supposedly terminated the janitorial service contract on the 13th of the month and claimed that there were no… Read More

AB 5 and its amended version Lab. Code 2778 et seq. does not violate the First or Fourteenth Amendments in its application to freelance journalists and others who supply creative content to newspapers, films and other media.  The regulation does not single out those engaged in speech for harsher treatment.  The exemption for some freelancers may not be as broad… Read More

Newspaper delivery carriers sued to recover their mileage expenses under Lab. Code 2082, claiming that defendant had misclassified them as independent contractors, rather than as employees.  On that claim, the control plus test set out in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 governs whether a worker is an employee.  Newspaper carriers were… Read More

The plaintiff in a parallel PAGA suit against the same employer does not have standing to move to vacate or appeal from a judgment entered after the trial court approved settlement of a different plaintiff's similar PAGA suit against the employer.  To have standing to appeal one must be both a party to the action and be aggrieved by the… Read More

While the ABC test of employee v. independent contractor status applies retroactively, Prop. 22's classification of some gig workers as independent contractors applies only prospectively.  So GrubHub drivers, if employees under the ABC test adopted in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, are entitled to back wages for the period before Prop. 22's adoption.  The… Read More

Plaintiff adequately exhausted her administrative remedies under the FEHA by filing a complaint with the DFEH that nearly correctly named her employer's dba Hooman Chevrolet (instead of Hooman Chevrolet of Culver City) but got the corporate name of the employer wrong Hooman Enterprises, Inc. (instead of NBA Automotive, Inc.).  The administrative complaint also correctly named the plaintiff's supervisor and other… Read More