Search This Blog


Wednesday, November 25, 2015

Happy Thanksgiving!

I have much to be thankful for: family, friends, good health. I am so grateful, and so fortunate,  that I get to do work that I love for a living. And I am very grateful for all of you who have asked me to work with you, particularly over the last year. Thank you, and have a happy Thanksgiving.

Tuesday, November 17, 2015

Cal. DOJ v. CalPERS: Coutr of Appeal Rules on Public Employee Disability Retirement and Reinstatement Issues

Just to note this case for our colleagues who do public entity work.

California Department of Justice v. Board of Administration of California Public Employees’ Retirement System (Resendez) (10/13/15) --- Cal.App.4th --- discusses the following issues:
Appellant California Department of Justice (DOJ) appeals from a judgment in favor of respondents Angelita Resendez and Board of Administration of California Public Employees’ Retirement System (CalPERS) in this action concerning reinstatement to a peace officer position following disability retirement. On appeal, it is undisputed that Resendez is no longer incapacitated for duty based on the orthopedic condition that led to her disability retirement. DOJ contends: (1) in determining whether Resendez was still physically or mentally incapacitated for duty, CalPERS should have verified Resendez was not suffering from any other condition that would prevent her from meeting the minimum standards for peace officers set forth in Government Code section 10312 ; (2) DOJ does not have a mandatory duty under section 21193 to reinstate an employee that CalPERS determines is no longer incapacitated; and (3) DOJ may condition an offer of reinstatement under section 21193 on compliance with the standards of section 1031. We conclude CalPERS properly made its reinstatement determination based on the condition for which Resendez received disability retirement, DOJ has a mandatory duty to reinstate Resendez after CalPERS concludes she is no longer incapacitated, and DOJ may not require Resendez to comply with conditions prior to reinstatement. 
The opinion is available here.

Monday, November 16, 2015

Connor v. First Student: Investigative Consumer Reporting Agencies Act Is Not Constitutionally Void for Vagueness, and Employee May Maintain Action for Alleged Violations

The Investigative Consumer Reporting Agencies Act (ICRAA) (Cal. Civ. Code, § 1786 et seq.) and the Consumer Credit Reporting Agencies Act (CCRAA) (Cal. Civ. Code § 1785.1 et seq.) regulate agencies that gather information on consumers to provide to employers, landlords, and others for use by those persons in making employment, rental, and other decisions. The ICRAA governs agencies (and those to whom it provides information) with regard to investigative consumer reports, i.e., reports containing information on a consumer's character, general reputation, personal characteristics, or mode of living. The CCRAA governs agencies (and those to whom it provides information) with regard to consumer credit reports, i.e., reports of information bearing on a consumer's credit worthiness, credit standing, or credit capacity. Both acts impose obligations on the agencies regarding disclosure to consumers when the agencies furnish reports, and limit when and to whom those reports may be furnished. The obligations and limitations, however, are different for each act, as are the remedies for violations of the act; generally, the ICRAA imposes greater obligations and stricter limitations, and allows greater remedies.
In Connor v. First Student, Inc. (8/12/15) --- Cal.App.4th ---, the plaintiff sued the defendants for violation of the ICRAA, alleging that the notices they gave to her regarding their intent to conduct background checks failed to comply with the law. The trial court granted summary judgment for the defendants, holding that the ICRAA is unconstitutionally vague in its application. The Court of Appeal reversed, holding as follows: the ICRAA applied to the background checks at issue; the fact that the CCRAA might also apply to those same background checks did not render the ICRAA void for vagueness; and Ortiz v. Lyon Management Group, Inc. (2007) 157 Cal.App.4th 604, holding that the ICRAA was void for vagueness, was wrongly decided because it failed to consider case law governing the interpretation of overlapping statutes.

The opinion is available here.

Saturday, November 14, 2015

New Labor Code Section 226.2 Creates Safe Harbor for Employers Who Have Not Compensated Piece Rate Workers Separately for Non-Productive Time

In Gonzalez v. Downtown LA Motors, LP (2013) 215 Cal.App.4th 36 (discussed here), the Court of Appeal held that an auto repair shop that paid its repair technicians on a piece rate basis (paying per job done, rather than per hour worked) must compensate those employees separately for their non-productive time (time spent waiting for the next repair job or doing other non-repair tasks directed by the employer). In Bluford v. Safeway Stores, Inc. (2013) 216 Cal. App. 4th 864 (discussed here), the Court held that employers also must compensate their piece rate workers separately for their rest period time. (Unlike meal period time, which is non-compensable time off the clock, rest period time is compensable time on the clock.)

On October 10, 2015, Governor Brown signed legislation enacting Labor Code section 226.2, which provides a safe harbor to employers who have not complied with these requirements in the past. As stated in Legislative Counsel's Digest:
Existing law prohibits an employer from requiring an employee to work during any meal or rest or recovery period mandated by an applicable statute or specified regulation, standard, or order, establishes penalties for an employer’s failure to provide a mandated meal or rest or recovery period, and requires rest or recovery periods to be counted as hours worked. Existing law establishes the Division of Labor Standards Enforcement in the Department of Industrial Relations for the enforcement of labor laws, including laws related to wage claims. Existing law requires every employer, semimonthly or at the time of each payment of wages, to furnish each employee with an accurate itemized statement in writing showing specified information. A knowing and intentional violation of this provision by an employer is a misdemeanor, as specified. 
This bill would require the itemized statement provided to employees compensated on a piece-rate basis to also separately state the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, as specified, the rate of compensation, and the gross wages paid for that time during the pay period. The bill would require those employees to be compensated for rest and recovery periods and other nonproductive time at or above specified minimum hourly rates, separately from any piece-rate compensation. The bill would define “other nonproductive time” for purposes of these provisions to mean time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis. Because a knowing and intentional violation of these requirements would be a crime, the bill would impose a state-mandated local program. 
The bill, until January 1, 2021, would provide that an employer shall have an affirmative defense to any claim or cause of action for recovery of wages, damages, liquidated damages, statutory penalties, or civil penalties based solely on the employer’s failure to timely pay the employee the compensation due for rest and recovery periods and other nonproductive time for time periods prior to and including December 31, 2015, if, by no later than December 15, 2016, the employer complies with specified requirements, subject to specified exceptions.
Legislative Counsel's Digest is available here

Thursday, November 12, 2015

Jumaane v. City of Los Angeles: Continuing Violation Doctrine Did Not Apply, and Plaintiff Did Not Prove Discrimination, Harassment, or Retaliation During Limitations Period

In Jumaane v. City of Los Angeles (11/10/15) --- Cal.App.4th ---, Jabari Jumaane sued the City of Los Angeles for disparate impact and disparate treatment discrimination based on race (African-American), harassment based on race, and retaliation. Jumaane alleged that the adverse employment actions against him included suspensions in June, 1999, and again in April, 2011. Jumaane filed his DFEH complaint on April 16, 2002, and filed suit thereafter.

The City prevailed in the first trial, held in 2007, but the trial court reversed based on juror misconduct, and the Court of Appeal affirmed. In the second trial, held in 2013, Jumaane prevailed on all claims, except his disparate treatment discrimination claim. The trial court denied the City's nonsuit motion, the City appealed, and the Court of Appeal reversed, holding as follows:

Jumaane could not recover for acts occurring more than one year before he filed his DFEH complaint. For the continuing violation doctrine to apply, the plaintiff must prove that conduct occurring outside the limitations period was (1) similar or related to the conduct that occurred earlier; (2) the conduct was reasonably frequent; and (3) the conduct had not yet become permanent. While substantial evidence supported a finding as to the first two elements, Jumaane failed to show that the conduct taking place in the 1990s had not become permanent by the time of his June, 1999, suspension.

Substantial evidence did not support a finding of disparate impact race discrimination during the limitations period. Jumaane failed to meet his burden to show that any facially neutral discipline policy of the City's had a significant adverse impact on African-Americans. While Jumaane introduced evidence to show that there "appeared to be a disproportionate amount of discipline against Blacks" during the early 1990s, this evidence did not show disparate treatment during that time period, let lone during the time period at issue.

Substantial evidence did not support a finding of harassment based on race during the limitations period. The only alleged harassment during the limitations period was the suspension in April, 2011, but a disciplinary suspension "does not constitute harassment under FEHA as a matter of law."

Substantial evidence did not support a finding of retaliation during the limitations period. Assuming for the sake of argument that Jumaane proved a prima facie case of retaliation, he could not demonstrate that the City's proffered legitimate reason for suspending him was pretextual.

Jumaane's claims for failure to prevent discrimination, harassment, and retaliation also failed.

The opinion is available here.

Tuesday, November 10, 2015

Performance Team Freight Systems v. Aleman: Truck Drivers Failed to Demonstrate that Their Independent Contractor Agreements Fell Outside Scope of FAA

Performance Team Freight Systems, Inc. v. Aleman (11/2/15) --- Cal.App.4th --- is another case dealing with the scope of the Federal Arbitration Act (FAA) and the exclusion for contracts of employment of transportation workers "engaged in foreign or interstate commerce." See Garrido v. Air Liquide Industrial U.S. LP (10/26/15) --- Cal.App.4th --- (discussed here); Garcia v. Superior Court (Southern Counties Express, Inc.) (5/15/15) --- Cal.App.4th --- (discussed here). 

In Performance Team, a number of truck drivers filed individual DLSE wage and hour claims against the respondent. The respondent then filed a superior court action to compel arbitration and stay the DLSE actions pursuant to an arbitration clause in the drivers' independent contractor agreements. The trial court denied the motions, holding that the drivers were transportation workers engaged in foreign or interstate commerce and therefore excluded from the scope of the FAA. The court further held that the drivers' claims fell outside the scope of their independent contractor agreements.

The Court of Appeal reversed, holding as follows:

Even if the drivers were transportation workers engaged in foreign or interstate commerce - an issue which the Court did not decide - the drivers failed to meet their burden to demonstrate that their independent contractor agreements were "contracts of employment."
The only evidence relevant to the issue of whether the individual respondents entered into contracts of employment was presented by Performance Team, which submitted the subject agreements and the declaration of its driver manager. Each agreement was labeled “Independent Contractor Agreement” and specifically described each individual respondent as an “independent contractor.” Each agreement further stated: “For all purposes, [individual respondent] shall be an independent contractor and not an employee of [Performance Team].”
Absent such evidence, the trial court erred in finding that the FAA did not apply.

The trial court also erred in finding that the drivers' claims fell outside of the scope of the arbitration agreement. The agreement provided: "Any dispute between the parties with respect to the interpretation or the performance of the terms of this Agreement may be submitted to arbitration...." The drivers contended that they performed the trucking services required by the agreements, and resolving the drivers' claims would require interpretation of the agreement's terms. The claims thus fell squarely within the scope of the arbitration agreement.

Finally, the Court erred in finding unconscionability. Although the agreement was substantively unconscionable because it required the parties to share the cost of arbitration and failed to provide a procedure similar to a Berman hearing, the drivers failed to introduce evidence that the agreement was procedurally unconscionable. 

The opinion is available here.

Tuesday, October 27, 2015

Garrido v. Air Liquide: FAA Does Not Apply in Action by Interstate Transportation Worker; Gentry Factors Apply, and Trial Court Properly Denied Motion to Compel Individual Arbitration

In Garrido v. Air Liquide Industrial U.S. LP (10/26/15) --- Cal.App.4th ---, the plaintiff worked as a truck driver for the defendant, delivering industrial gases in California and neighboring states. He filed a putative class action alleging wage and hour violations against the defendant. The defendant moved to compel individual arbitration pursuant to arbitration agreement, which stated that it was governed by the Federal Arbitration Act (FAA).

The trial court denied the motion to compel arbitration. Analyzing the case under Gentry v. Superior Court (2007) 42 Cal.4th 443, the court held that the defendant could not enforce the agreement because doing so would prevent the plaintiff from bringing a class claim and would stand as an obstacle to his right to vindicate statutory labor rights. The defendant appealed, and the Court of Appeal affirmed, holding as follows:

Although the agreement stated that it would be governed by the FAA, the FAA did not apply here. The FAA does not apply to “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce," which includes "transportation workers." As a truck driver transporting goods across state lines, the plaintiff was a "transportation worker," and the FAA did not apply.

Without the FAA, the California Arbitration Act (CAA) applied.

Although the California Supreme Court held in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, that Gentry’s rule against employment class waivers was preempted by the FAA, Gentry still controls cases where the FAA does not apply. "While Iskanian made clear that the Gentry rule is preempted by the FAA, it did not go beyond that finding. Therefore, the Gentry rule remains valid under the CAA."

Substantial evidence supported the trial court's finding that the four Gentry factors were met: the potential recovery for any individual was modest; there existed a potential for retaliation against the employees; the plaintiff testified that he did not know of his rights during his employment, and the court could infer that the same was true of the other employees; and requiring each employee to bring a separate action would create "real world obstacles to the vindication of class members’ rights..."

"In light of these determinations, the trial court correctly found that a class proceeding here would be a significantly more effective way of allowing employees to vindicate their statutory rights," and the defendant could not enforce the arbitration agreement.

The opinion is available here.