May 2019 employment law decisions

Free speech retaliation verdict affirmed.

May 31, 2019, Ninth Circuit Court of Appeals, Doug Grieisen v. Jon Hanken: Mr. Grieisen, chief of police, spoke about a matter of public concern as a private citizen when discussing his concerns with city council members and government officials about the city’s accounting and budgeting practices under the city manager. Mr. Hanken’s communications with the media about Mr. Grieisen were adverse employment actions.

Relief for increased tax liability not available in State Personnel Board actions.

May 17, 2019, Fourth District Court of Appeal, Patrick Barber v. California State Personnel Board: Addressing an issue of first impression, the court of appeal concluded that employees pursuing actions before the California State Personnel Board cannot recover for increased tax liability resulting from a lump sum back pay award.

Government claim must be timely presented before filing a whistleblower claim against a public agency.

May 14, 2019, Second District Court of Appeal, Aurora Le Mere v. Los Angeles Unified School District: Employee could not save her whistle-blower claim under Labor Code section 1102.5 by complying with the Government Claims Act after filing suit.

California’s new independent contractor test applies retroactively.

May 2, 2019, Ninth Circuit Court of Appeals, Gerrardo Vazquez v. Jan-Pro Franchising International, Inc.: The California Supreme Court’s decision that established a new “ABC” test for independent contractors for purposes of certain wage and hour claims (Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903) applies retroactively.

Posted by deanroyerlaw in Employment

April 2019 employment law decisions

Employee’s failure to promote claim revived.

April 29, 2019, Ninth Circuit Court of Appeals, David Weil v. Citizens Telecom Services Company, LLC: The trial court erred by dismissing a failure to promote claim after excluding a statement made by an employee of the defendant employer concerning the promotion decision despite being later moved to a different role.

Unpaid wages claim by security guards with collective bargaining agreement turns on interpretation of state law.

April 25, 2019, California Supreme Court, George Melendez v. San Francisco Baseball Associates LLC: Claim for unpaid wages by security guards at San Francisco Giants’ stadium does not require interpretation of a collective bargaining agreement so the lower courts may decide the case on the merits.

Employer complies with wage statement law by listing its fictitious business name and street address not including a mail stop code.

April 10, 2019, First District Court of Appeal, Vaiula Savea v. YRC, Inc.: The court of appeal affirmed the trial court’s dismissal (on demurrer) of the employee’s case that asserted the wage statement law required listing the employer’s name registered with the California Secretary of State and an address that included the mail stop code and the ZIP+4 code.

Posted by deanroyerlaw in Employment

March 2019 employment law decisions

A case with one representative claim cannot be forced into arbitration.

March 28, 2019, Second District Court of Appeal, Arthur Zakaryan v. The Men’s Wearhouse, Inc.: a case based on one representative (Private Attorney General Act of 2004) claim cannot be split and sent to two different fora, i.e. one part remains in court and one part goes to arbitration.

Religious organizations are exempt from all claims under federal employment discrimination law (Title VII).

March 18, 2019, Ninth Circuit Court of Appeals, Ann Garcia v. Salvation Army: the Salvation Army is exempt from the federal employment discrimination law (Title VII) under the religious organization exception for hiring and firing decisions as well as retaliation and hostile work environment claims.

Ministerial exception does not bar preschool teachers at Jewish synagogue from pursuing claims against their employer.

March 8, 2019, Second District Court of Appeal, Julie Su v. Stephen S. Wise Temple: preschool teachers at a Jewish synagogue may pursue wage and hour claims against their employer because the “ministerial” exception does not apply.

Posted by deanroyerlaw in Employment

February 2019 employment law decisions

Professor cannot pursue defamation claim against his employer but his retaliation claim survives.

February 28, 2019, Sixth District Court of Appeal, Jason Laker v. Board of Trustees of the California State University: under the anti-SLAPP law, a professor’s defamation claim against his public university employer is based on protected activity (statements made in the course of an internal investigation of another professor), but his retaliation claim to the extent it is based on investigations into the professor’s conduct is not.

Plaintiffs in representative action cannot take the full 25 percent of civil penalties.

February 27, 2019, Second District Court of Appeal, David Moorer v. Noble L.A. Events, Inc.: the 25 percent of the civil penalties for a representative action (Private Attorney General Act of 2004) that are allocated to the “aggrieved” employees must be distributed in a pro rata amount to all of those employees.

Compensation of employees determined by California’s minimum wage rather than Long Beach as a charter city.

February 25, 2019, Second District Court of Appeal, Wendy Marquez v. City of Long Beach: Long Beach must comply with California’s minimum wage requirements notwithstanding its status as a charter city.

Representative action not subject to arbitration agreement.

February 25, 2019, Fourth District Court of Appeal, Mark Correia v. NB Baker Electric, Inc.: the California Supreme Court decision that representative actions (Private Attorney General Act of 2004) cannot be forced into arbitration is still good law.

Labor contractor who obtained temporary workers for grower company may be held liable under federal employment discrimination law.

February 6, 2019, Ninth Circuit Court of Appeals, U.S. Equal Employment Opportunity Commission v. Global Horizons, Inc.: applying the common-law agency test, which has the extent of control over the detail of work as the principal guidepost, the Ninth Circuit affirmed the trial court’s decision that the contractor and growers were joint employers for all purposes.

Sales clerks entitled to pay for on-call reporting time.

February 4, 2019, Second District Court of Appeal, Skylar Ward v. Tilly’s, Inc.: on-call employees in the mercantile industry who contacted their employer two hours before on-call shifts are reporting for work and are owed reporting time pay.

Employment discrimination case by drummer for Eddie Money arises from Mr. Money’s right of free speech as to which musicians performed with him.

February 1, 2019, Second District Court of Appeal, Glenn Symmonds v. Edward Joseph Mahoney: the Second District decided that the anti-SLAPP law applies to a musician’s claims concerning his termination.

Posted by deanroyerlaw in Employment

November 2018-January 2019 employment law decisions

Whistleblower case based on reporting employer’s alleged noncompliance with use tax law.

January 23, 2019, First District Court of Appeal, Says Siri v. Sutter Home Winery, Inc.: Ms. Siri’s case cannot be resolved by summary judgment.

Independent contractor or employee?

January 11, 2019, First District Court of Appeal, Nichelle Duffey v. Tender Heart Home Care Agency, LLC: to determine Ms. Duffey’s status, the recent California Supreme Court decision (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903) indicates the standard described in the law she sued under (Domestic Worker Bill of Rights) must be used.

Recovery for unpaid overtime claim?

January 4, 2019, First District Court of Appeal, Terry Furry v. East Bay Publishing, LLC: despite Mr. Furry’s imprecise evidence of his hours works, it was error to completely deny him relief because the employer failed to keep accurate records of his hours.

Whether judgment in representative action concerning alleged meal break violations will stand.

December 20, 2018, Fourth District Court of Appeal, Kileigh Carrington v. Starbucks Corporation: Ms. Carrington was an “aggrieved” employee who could bring the action because the claims included employees who, like Ms. Carrington, worked more than five hours without being provided a timely meal break or paid a meal period premium.

Catholic elementary school exempt from employment discrimination claim?

December 17, 2018, Ninth Circuit Court of Appeals, Kristen Biel v. St. James School: Ms. Biel can pursue her Americans with Disabilities Act claim against the Catholic elementary school that terminated her employment.

Can health care employees waive a second meal period?

December 10, 2018, California Supreme Court, Jazmina Gerard v. Orange Coast Memorial Medical Center: A wage order of the Industrial Welfare Commission permitting health care employees to waive a second meal period even if they have worked more than 12 hours does not violate California’s Labor Code.

Does rejection of a statutory settlement offer allow a prevailing employer to recover its costs?

November 14, 2018, Second District Court of Appeal, Felix Huerta v. Kava Holdings, Inc.: Settlement offers under Code of Civil Procedure 998 have no application to costs and attorneys fees in Fair Employment and Housing Act claims unless the lawsuit is found to be frivolous, including litigation that predates January 1, 2019.

Age Discrimination in Employment Act application to state or municipal agencies.

November 6, 2018, U.S. Supreme Court, Mount Lemmon Fire District v. Guido: The ADEA applies to state and municipal agencies regardless of the number of employees.

Does federal case decision in favor of employee preclude state case to recover more than back pay?

November 6, 2018, First District Court of Appeal, Victor Guerrero v. California Department of Corrections and Rehabilitation: Mr. Guerrero may pursue his claims for damages in state court.

Americans with Disabilities Act regarded as disabled definition.

November 1, 2018 (amended), Ninth Circuit Court of Appeals, Herman Nunies v. HIE Holdings, Inc.: A reasonable jury could conclude that HIE terminated Mr. Nunies because of its knowledge of Mr. Nunies’ shoulder injury.

Posted by deanroyerlaw in Employment