Labor & Employment

On remand from the Supreme Court, this Court of Appeal decision affirms the trial court's decision not to award statutory penalties under either Lab. Code 203 (failure to pay wages on termination of employment) or 226 (wage statements) for the employer's failure to pay and include in the wage statement, premium pay for missed meal breaks.  Under the statutes, the… Read More

Under the FLSA, an employer need not pay overtime pay to employees who work in a bona fide executive, administrative, or professional capacity.  Dept. of Labor regulations impose three tests for the exemption's applicability, one of which is that the employee must be paid on a "salary basis."  This decision holds that the regulation defining "salary basis" requires that the… Read More

Summary judgment for defendant employer was reversed in this disability discrimination in employment case.  Defendant tentatively decided to lay plaintiff off before she became disabled, but didn't follow through with that decision until after plaintiff suffered a disabling injury.  Plaintiff produced sufficient evidence to raise a triable issue of fact as to whether defendant's concern with plaintiff's disability led to… Read More

Part of the Healthy Workplaces, Healthy Families Act of 2014, Lab. Code 248.5(e) provides that  “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief ."  This decision holds that "enforcing this article on behalf of the public" refers… Read More

This decision tries to make sense of arbitration of PAGA claims in light of Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906.  It holds that an arbitration clause's waiver of the right to bring PAGA claims is still unenforceable as against public policy, but that waiver can be severed from the rest of the arbitration clause, leaving the… Read More

This split decision holds that under Morgan v. Sundance, Inc. (2022) 142 S.Ct. 1708, an employer waived the right to compel arbitration against class member employees who signed a 2002 arbitration agreement even though they became parties to the lawsuit only late in the case when a class was certified.  Though the named plaintiff had not signed the arbitration agreement,… Read More

Under special legislation, Alameda County established a separate county-wide health district.  This decision holds that the district is subject to suit under some provisions of the Labor Code and IWC wage orders (meal and rest breaks and accurate wage statements) because nothing in the enabling legislation expressly exempts the district; there are no other positive indicia of legislative intent to… Read More

Under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), employers must provide employees who take military leave with the same non-seniority rights and benefits as their colleagues who take comparable non-military leaves. See 38 U.S.C. § 4316(b)(1); 20 C.F.R. § 1002.150(a).  Whether short term military leave is comparable to nonmilitary leave is a jury question dependent upon three factors:… Read More

The 2022 amendment to the FAA exempting from its enforcement of arbitration agreements pre-dispute agreements to arbitrate sexual assault or harassment claims does not apply retroactively to suites filed before the amendment's effective date.  Nevertheless, arbitration should not have been compelled here because the agreement is unconscionable.  Procedurally, the employer did not disclose at the time of agreement which arbitration… Read More

Plaintiff was hired by Intelex but also worked simultaneously for five other firms that were jointly owned and operated with Intelex.  Intelelex's employment agreement contained an arbitration clause, but didn't mention the other employing companies or make them third party beneficiaries of the arbitration clause.  The other employers' motion to compel arbitration of plaintiff's wrongful termination claims was properly denied. … Read More

To appeal from a Labor Commissioner award of wages to an employee, the employer must post a bond in the amount the Labor Commissioner awarded.  This decision holds that a car wash company cannot substitute its $150,000 car wash bond for the bond required by section 98.2.  Though for a similar purpose of guaranteeing payment of wages to car wash… Read More

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