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
AB 51 (Stats. 2019 ch. 711) enacted Lab. Code 432.6 which prohibits employers from requiring employees to agree to arbitration as a condition of employment, and states that it is a condition of employment if the employer requires the employee to opt out or take any affirmative step to avoid agreeing to arbitration. Over a strong dissent, the majority opinion… Read More
Disagreeing with Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289 and Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, this decision holds that Equilon is a joint employer, at least for wage and hour regulation purposes, of the employees of the franchisees that run its gas stations. For wage and hour purposes, joint employment is governed by the… Read More
Following Reid v. Google, Inc. (2010) 50 Cal.4th 512, this decision holds that the trial court erred in excluding "stray remarks" evidence in this employment discrimination case on the basis of age. The stray remark, by an assistant dean, was that she wanted someone younger (than the applicant, not plaintiff) for a position different than any plaintiff held or applied… Read More
A court has inherent authority to ensure that PAGA claims can be fairly and efficiently tried and, if necessary, may strike claims that cannot be rendered manageable. As a matter of due process, defendants are entitled to a fair opportunity to litigate available affirmative defenses, and a court’s manageability assessment should account for them. Here, the PAGA claim was based… Read More
Generally, a person hiring an independent contractor to perform work is not liable for injuries suffered by the contractor's employees in performing that work under the Privette doctrine. There are two exceptions to this rule. The Kinsman exception which holds a hirer liable if it is a landowner and fails to disclose some tatent dangerous condition of the property to… Read More
Applying Martinez v. Combs (2010) 49 Cal.4th 35 regarding the definition of employer under IWC orders, this decision affirms a summary judgment finding that a bail bond surety company is not the employer of bail bondsmen's fugitive recovery personnel. The surety company did not hire, fire or exercise control over those personnel. The surety company's contracts with the bail bondsmen… Read More
Employment, Race/Ethnicity Discrimination, Unconscious Discrimination, Aversive Racism, 2, 8 This decision holds that race discrimination need not be consciously motivated by race in order to violate Title VII. Unconscious application of racial stereotypes is enough to violate the statute. However, expert testimony regarding such unconscious application of racial stereotypes does not prove race discrimination as a matter of law. The… Read More
Labor Code 206 and 206.5 require an employer to pay an employee all wages the employer concedes are due without condition and without any release of the employee's disputed claims, if any, to other wages. Here, the employer conceded it owed plaintiff a bonus, but before paying it sent the plaintiff a 998 offer to settle all wage claims. Held,… Read More
An employer that gives preferential treatment toward a supervisor’s sexual or romantic partner does not thereby discriminate on the basis of sex against other employees of the same sex as the paramour because it doesn't satisfy Bostock v. Clayton County (2020) 140 S. Ct. 1731's test--would employer have acted differently if employee was of the opposite sex. As used in… Read More
Romero drove a truck for defendant employer entirely within the boundaries of California, but he delivered goods that had been shipped by interstate transportation. Therefore, was a worker engaged in interstate commerce to whose contract of employment the FAA does not apply. 9 U.S.C. 1. The FAA's exemption of employment contracts of workers in interstate commerce is not waivable. So… Read More
Both parties supply temporary nurses to hospitals. Plaintiff entered into a contract with defendant to supply nurses when defendant couldn't fill orders from its own supply of nurses. The contract contained a clause prohibiting plaintiff from soliciting defendant's employee-nurses to work for plaintiff rather than defendant. This decision holds that the non-solicitation clause is an ancillary restraint to be analyzed… Read More
The FAA applies to an arbitration clause in an employment agreement involved in interstate commerce and preempts California Labor Code 229 which forbids arbitration of wage and hour claims. The parties did not elect out of FAA preemption by a choice of law clause in the employment contract generally choosing California law, but not specifically choosing California law regarding arbitration… Read More
Burlington forced Gallano, one of its check-out clerks, to sign a promissory note for losses on return of items by customers or mistaken pricing of goods due to other workers' errors in affixing price tags. This opinion holds that Gallano stated viable claims against Burlington for violation of Lab. Code 2802 (which requires the employer to reimburse employees for expenses… Read More
Part of California's Prevailing Wage Law, Labor Code 1772 provides: "Workers employed by contractors or subcontractors in the execution of any contract for public work are deemed to be employed upon public work." Delving into the section's history and rejecting Court of Appeal decisions giving it a different interpretation, this decision holds that the section merely makes it clear that… Read More
California's Prevailing Wage Law (Lab. Code 1720(a)(1)) defines a "public work" as including construction and installation. This decision holds that while the statute does not expressly say so, the prior common meaning of a public work--that is a physical installation on real property--provides a context for the statutory definition, confining its broad undefined terms, construction and installation, to tasks performed… Read More
