Articles Posted in Labor & Employment Law

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AC operates transit buses in and around Alameda County. Bus routes range from 15 minutes to over an hour, with a small recovery time scheduled at the end of each route, which may not be available depending on whether the driver is running on schedule. Drivers can be behind the wheel for up to 10 hours a shift. AC operated 695 buses; only 20 percent were air-conditioned. In 2007, the Department of Industrial Relation’s Division of Occupational Safety and Health cited AC for violations of California Code of Regulations, title 8 section 3395 with respect to the buses: failure to supply adequate drinking water to drivers; failure to make shade continuously available for drivers; and failure to develop heat illness procedures and related training for employees and supervisors. The standards apply to “outdoor” places of employment. The Occupational Safety and Health Appeals Board affirmed an ALJ's dismissal of the violations. The trial court ordered the Board to reconsider. The court of appeal agreed, reasoning that the trial court’s broader construction of section 3395 is well-supported by the regulation's language and related regulatory history and comports with the underlying purpose of the entire statutory scheme: the achievement of safe working environments. View "California Department of Industrial Relations v. AC Transit" on Justia Law

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Employees of WinCo Foods, LLC and/or WinCo Holdings, Inc. (collectively WinCo) were undisputedly subject to a collective bargaining agreement which purported to provide that an employee who worked a shift of less than six hours was not entitled to a meal break. The Employees filed this action claiming, among other things, that WinCo was violating Labor Code section 512(a), which provided that an employee who worked more than five hours was entitled to a meal break, “except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee.” The trial court ruled that the collective bargaining agreement waived the Employees’ statutory right to a meal break whenever they worked more than five but not more than six hours. The Employees appealed, arguing the trial court erred because the waiver in the collective bargaining agreement was not “clear and unmistakable,” as required by federal law. The Court of Appeal held the waiver was clear and unmistakable, because it specifically mentioned meal breaks and it was irreconcilable with the statutory right to a meal break during a shift of more than five but not more than six hours. View "Ehret v. WinCo Foods, LLC" on Justia Law

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Lacagnina worked for Comprehend as vice president of business development, 2012-2013, when he was “abruptly” terminated. Lacgnina claims that he was fraudulently induced to enter into an employment agreement with Comprehend by false representations made to him by its founders, Morrison and Gardner. A jury awarded Lacagnina a total of $556,446 in damages, including $226,446 in damages for fraud and $75,000 for emotional distress. The court granted the defendants judgment notwithstanding the verdict on the fraud claim on the ground that Lacagnina was not damaged by the alleged fraud, and entered an amended judgment of $255,000. The court of appeal reversed in part. An employer who induces an employee to enter into an employment contract by intentionally promising compensation terms the employer never intended to honor may not avoid tort liability for fraudulent inducement of contract based on the contract’s inclusion of an “at-will’ provision that allows the employer to fire the employee at any time for any reason. The court rejected Lacagnina’s contention that an employee who recovers a judgment against an employee for lost compensation has suffered a “theft” of “labor” for which he is entitled to recover treble damages and attorneys’ fees under Penal Code Section 496(c). View "Lacagnina v. Comprehend Systems, Inc." on Justia Law

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When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours (Lab. Code 202(a)1). If the employer willfully fails to do so, the employee’s wages continue as a penalty from that due date until the wages are paid, for up to 30 days. Nishiki resigned by sending an email to the partners in the law firm where she worked at 6:38 p.m. on Friday, November 14, noting that her unused vacation time “needs to be paid within 72 hours.” The firm mailed her a handwritten check on November 18: the amount in numerals was “2,880.31,” the correct amount, but it was spelled out as “Two thousand eight hundred and 31/100.” On November 26, Nishiki sent an email stating she had been unable to deposit the check because of the inconsistency and asserting she was entitled to waiting time penalties. A corrected check was mailed on December 5. Nishiki filed a complaint with the California Labor Commissioner seeking vacation wages, rest period premiums, and waiting time penalties. She prevailed on her claim for waiting time penalties and was awarded $4,250. The superior court affirmed and awarded Nishiki $86,160 in attorney fees. The court of appeal reduced the award of waiting time penalties but otherwise affirmed. Nishiki’s daily wage was $250. The proper waiting time penalty for nine days was, therefore, $2,250. View "Nishiki v. Danko Meredith, APC" on Justia Law

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Larry Tripplett, a former defensive tackle for the Indianapolis Colts, Buffalo Bills and Seattle Seahawks, petitioned for review of the California Workers’ Compensation Appeals Board’s (WCAB) decision to deny his claim for worker’s compensation for cumulative injuries he suffered during his career. Tripplett’s primary contention was that the WCAB erred because he satisfied his evidentiary burden of proving he was hired by the Indianapolis Colts in California for purposes of Labor Code sections 3600.5(a), and 53051, and thus was eligible for workers compensation under California law. Although the workers compensation judge (WCJ) found jurisdiction was established by the fact Tripplett’s agent had “negotiated” his contract with Indianapolis while located in California, the WCAB reversed, suggesting instead the salient question in assessing whether Tripplett was “hired” in California was whether he or his agent executed the written employment agreement in this state. The California Court of Appeal agreed with the WCAB that Tripplett was hired when he executed the written employment agreement offered by Indianapolis. Tripplett thus failed to satisfy his burden of proving he was hired in California. Tripplett also claimed the WCAB erred by concluding there was no other basis for establishing subject matter jurisdiction over his cumulative injury claim. He argued his residency in the state, combined with his participation in two games in California during his career, demonstrated he had a greater than de minimus contact with the State of California. The Court of Appeal found no merit to this contention: Tripplett’s residency in California provided no basis for establishing subject matter jurisdiction over his injury, and the WCAB did not err in concluding that his participation in two games in California, out of more than 100 in his career, reflected no significant connection between this state and his cumulative injury. View "Tripplett v. Workers' Compensation Appeals Bd." on Justia Law

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In this appeal, the issue the Court of Appeal was asked to determine whether a state entity whose employees were exempt from state law requiring the payment of overtime compensation was nevertheless required to pay overtime compensation to such employees when the state entity jointly employed the employees with a non-state employer. Although the Court concluded in a prior appeal in this case that the matter should have been remanded to the trial court to permit the plaintiffs to amend their complaint to attempt to state a cause of action premised on such a theory, the Court now concluded such a cause of action would not be legally viable. Furthermore, the Court concluded the law-of-the-case doctrine did not require the Court reverse the trial court's order sustaining a demurrer to the plaintiffs' second amended complaint. View "Moreles v. 22nd District Agricultural Assn." on Justia Law

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Augustine Caldera was a correctional officer at a state prison with a stutter. The prison’s employees mocked or mimicked Caldera’s stutter at least a dozen times over a period of about two years. Sergeant James Grove, a supervisor, participated in the mocking and mimicking of Caldera’s stutter. Such conduct reflected the prison’s culture, according to a senior prison official. Caldera sued the California Department of Corrections and Rehabilitation (CDCR) and Grove (collectively defendants) for disability harassment, failure to prevent the harassment, and related claims. A jury found the harassment to be both severe and pervasive and awarded Caldera $500,000 in noneconomic damages. The trial court found the damage award to be excessive and granted defendants’ motion for a new trial solely as to that issue. Defendants appealed and Caldera cross-appealed. Defendants claimed there was insufficient evidence the harassment was either severe or pervasive. Defendants also claimed the trial court committed two instructional and one evidentiary error. The Court of Appeal found substantial evidence to support the jury’s factual findings. The Court of Appeal also found no prejudicial instructional errors and the claimed evidentiary error was forfeited. Caldera claimed the trial court failed to file a timely statement of reasons after granting defendants’ motion for a new trial. To this, the Court of Appeal agreed, and reversed the trial court’s new trial order as to the damage award. In all other respects, the judgment was affirmed. View "Caldera v. Dept. of Corrections & Rehabilitation" on Justia Law

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This case arose from employment-related contract disputes. In 2013, petitioners, who were gastroenterologists, were recruited by GI Excellence, to work as physicians in GI Excellence’s gastroenterology service in Temecula, California. They each entered into separate physician recruitment agreements and physician employment agreements. The relationships did not last long: the two petitioners became dissatisfied with their conditions of employment and compensation and resigned in April and May 2014. GI Excellence sued them in separate actions for breach of the employment and recruitment contracts and other claims. Petitioners separately cross-complained for breach of contract, fraud, violation of Labor Code section 970, and other cross-claims. Litigation proceeded for about four years, with at least four continuances in the last year. Petitioners’ expert witness fell ill, and they asked for another continuance. GI Excellence filed an “opposition” which recognized the expert would likely not be available for trial. The superior court denied the ex parte application for continuance; petitioners filed this petition for writ of mandate and/or prohibition the next day, requesting an immediate stay of trial while the petition was being considered. GI Excellence filed an informal letter response. The Court of Appeal issued an order staying the trial and any proceeding requiring the participation of the expert pending determination of the petition. “A motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it. The court may require the moving party, where application is made on account of the absence of a material witness, to state upon affidavit the evidence which he expects to obtain; and if the adverse party thereupon admits that such evidence would be given, and that it be considered as actually given on the trial, or offered and overruled as improper, the trial must not be postponed.” Generally, a trial court abuses its discretion when it denies a request for continuance of trial due to the absence of a properly called and subpoenaed witness. Accordingly, the Court of Appeal determined the trial court abused its discretion in denying petitioners’ request for a continuance, and that the petition should have been granted. Therefore, the Court declared a peremptory writ of mandate issue, directing the Superior Court of Riverside County to vacate its order of May 16, 2018, in Riverside Superior Court case No. MCC1400959, denying petitioners’ ex parte application for a continuance of the trial, and to enter a new and different order granting the request. View "Padda v. Super. Ct." on Justia Law

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While serving as an administrative law judge for the State Personnel Board (SPB), Richard Fisher joined the law firm of Simas & Associates as “of counsel.” Simas & Associates specialized in representing clients facing administrative actions, including those heard by the SPB. The Simas law firm represented a CalTrans employee in a high-profile case that was being heard before the SPB while Fisher was serving his dual roles. Unaware Fisher was working for the law firm representing the CalTrans employee, the SPB administrative law judge hearing the high-profile case discussed the matter in a meeting attended by Fisher and even sent a draft opinion to her SPB colleagues, including Fisher. Fisher, however, never informed anyone at the SPB of his connection with the Simas law firm. Fisher’s connection with the law firm came to light only when another administrative law judge was asked about the matter during a local bar function. The SPB dismissed Fisher from his position as an administrative law judge. Fisher challenged the dismissal, which was affirmed after a hearing before the Office of Administrative Hearings. After a petition for mandamus relief was denied by the superior court, Fisher timely filed this appeal, arguing he should have been reinstated to his position because he was never personally served with notice that working for a law firm specializing in administrative matters constituted an impermissible activity for an SPB administrative law judge. Fisher additionally argued: (1) the 2013 incompatible activities statement adopted by the SPB was “an invalid ‘underground regulation;’ ” (2) conflicting evidence “fairly detracts from the findings” that he engaged in neglect of duty and other failures of good behavior; (3) the SPB’s decision “failed to address the Skelly[2] violation” of a missing document that was not disclosed to him prior to his hearing; and (4) his termination from employment at the SPB was not a just and proper penalty. The Court of Appeal rejected Fisher’s arguments that an SPB administrative law judge must expressly be informed it was impermissible to work for a law firm actively litigating cases before the SPB; Fisher’s conduct violated Government Code section 199903 and the SPB’s incompatibility activities statements that were in effect throughout his tenure as an SPB administrative law judge. The Court determined substantial evidence supported the findings of the administrative law judge who heard Fisher’s case that Fisher “displayed an appalling lack of judgment when he became of counsel with Simas & Associates” and “continued to demonstrate poor judgment when he failed to disclose his of counsel relationship to SPB.” The SPB did not abuse its discretion by dismissing Fisher. Accordingly, the Court affirmed the judgment. View "Fisher v. State Personnel Bd." on Justia Law

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The Court of Appeal affirmed the trial court's denial of a petition to compel arbitration of plaintiff's action for wage and hour violations. In this case, plaintiff was an hourly employee at Wash Depot. Wash Depot adopted a policy set forth in its employee handbook, written in both English and Spanish, requiring arbitration of legal claims arising from the employment relationship. The English version stated that the denial of the right to bring a Private Attorneys General Act (PAGA) action was severable if such denial was found by a court to be unenforceable, but the Spanish version provided that the PAGA denial was not severable. The court held that the arbitration agreement was unenforceable and the PAGA waiver set forth in the handbook was unenforceable as against public policy; the trial court did not abuse its discretion by declining to sever the PAGA waiver and enforce the remaining arbitration agreement; and the court construed the ambiguous language against the interest of the party that drafted it. View "Juarez v. Wash Depot Holdings, Inc." on Justia Law