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Labor & Employment

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In this PAGA suit, the trial court erred in ordering to arbitration the preliminary/gateway issue of whether the plaintiffs were employees of the defendant rather than independent contractors.  The state is the real party in interest in a PAGA suit and cannot be forced to arbitrate any portion of its claim--including whether the individual plaintiff is an employee with standing… Read More

An employer violates Lab. Code 512 and Wage Order No. 4 if it rounds actual clock in and out times for workers to the nearest 10th or 4th of an hour in calculating their meal and rest break periods--this is true even if (a question that the Supreme Court has not resolved) a similar policy of rounding hours for beginning… Read More

The dormant Commerce Clause does not prohibit California from applying its labor laws to airline employees who reside or are employed predominantly in California.  The airline's block time method of computing pay was similar to the pay scheme approved in Oman v. Delta Air Lines, Inc. (2020) 9 Cal.5th 762, and so did not offend California Labor Code guarantees of… Read More

A PAGA suit under Lab. Code 2988 may be brought against the employer in any county in which an aggrieved employee worked and a Labor Code violation was allegedly committed.  The private plaintiff need not bring the action in the county in which he worked or where the violations against him occurred. Read More

Defendant paid its nurse employees a regular hourly wage plus a fixed $35 per diem for employees working more than 50 miles from home.  This decision holds that the per diem sum is regular wages, not reimbursement for travel and other expenses and so must be included in the employees' regular pay when computing the 150% of regular pay to… Read More

Following Mejia v. DACM, Inc. (2020) 54 Cal.App.5th 691, this decision affirms an order denying a motion to compel arbitration.  As in Mejia, this decision distinguishes Clifford v. Quest Software Inc. (2019) 38 Cal.App.5th 745, saying it involved only the defendant's employees, not the broader public which this suit sought to benefit by an injunction against defendant's allegedly unfair practices… Read More

Reversing an order denying arbitration, this decision holds that the arbitration clause had only a minimal degree of procedural unconscionability due to the employer's greater economic power and only one clause that was substantively unconscionable but severable.  The employer was not required to give plaintiff a Spanish translation since plaintiff did not show she lacked English language skills, just that… Read More

Employer sent plaintiff a letter offering employment.  The letter contained an integration clause, but also stated that plaintiff would need to sign the employer's separate arbitration agreement.  This decision holds that the integration clause did not bar introduction of evidence of the arbitration agreement since it was not inconsistent with the offer letter's terms.  Also, the the offer letter sufficiently… Read More

After the California Supreme Court's decision on certified questions in Ward v. United Airlines, Inc. (2020) 9 Cal.5th 732, this decision holds that California's application of Labor Code 226 to transport workers who work a majority of their time in California does not violate the dormant Contract Clause and is not preempted by the Airline Deregulation Act or the Railway… Read More

After the California Supreme Court decided that Dynamex and its ABC test of employment for purposes of IWC wage orders applies retroactively, this 9th Circuit decision remands the case to the district court for further proceedings, giving extensive guidance to the district court in the process.  First, the ABC test applies to a three tier franchising operation such as Jan-Pro's. … Read More

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