California Supreme Court Civil Issues Pending: Labor - Other

[UPDATED THROUGH JULY 24, 2014]

Do Volunteer Peace Officers Qualify for Workers’ Compensation Benefits Provided to Salaried Officers? After the Court of Appeal affirmed a decision of the Board, the Court granted review on the following issue: Do the benefits provided under Labor Code § 4458.2 extend both to volunteer peace officers and to regularly sworn, salaried officers? Larkin v. Workers’ Comp. Appeals Bd., S216986 (opinion below C065891, formerly 223 Cal.App.4th 538). Review was granted 4/9/14.

What Is the Standard for Causation in a Workers’ Compensation Claim for Death Benefits? After the Court of Appeal annulled a decision of the WCAB, the Court granted review on the following issue: Does a claim for workers’ compensation death benefits have a separate and distinct causation standard and burden of proof requiring that an industrial injury constitute a “material factor” contributing to the employee’s death, or does the standard require only that the industrial injury be a “contributing cause”? South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd., S215637 (opinion below D063945, nonpublished opinion). Review granted 3/19/14.

How Should The Court Determine the Nature of an Employee’s Work for Purposes of Enforcing IWC Wage Orders Regarding Suitable Seating? In response to a request under C.R.C., rule 8.548 by the United States Court of Appeals for the Ninth Circuit, the Court certified the following issues in consolidated appeals. For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), (1) Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat? (2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee? (3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)? Kilby v. CVS Pharmacy, Inc./Henderson v. JPMorgan Chase Bank NA, S215614, (request submitted, 9th Cir. Nos. 12-56130, 13-56095; 739 F.3d 1192). Certification was granted 3/12/14.

Is a Supervisor’s Log a Personnel File? After the Court of Appeal reversed the judgment in an action for writ of administrative mandate, the Court granted review on the following issue: Did a daily log about firefighters, which was maintained by a supervisor and used by the supervisor to prepare annual performance evaluations, qualify under the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250 et seq.) as a personnel file and/or as a file used for personnel purposes? Poole v. Orange County Fire Authority, S215300 (opinion below G047691, G047850, formerly 221 Cal.App.4th 155). Review granted 2/26/14.

Can a CHP Officer be a Special Employee? After the Court of Appeal granted a petition for peremptory writ of mandate, the Court granted review on the following issue: Can the California Highway Patrol be considered the special employer of a tow truck driver participating in the Freeway Service Program? State ex rel. Dept. of California Highway Patrol v. Superior Court, S214221 (opinion below G047922, formerly 220 Cal.App.4th 612). Review granted 1/22/14.

How Can a Defendant Recover Costs in an Action under the Fair Employment and Housing Act? After the Court of Appeal affirmed an order awarding costs, the Court granted review on the following issue: Is a prevailing defendant in an action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) required to show that the plaintiff’s claim was frivolous, unreasonable, or groundless in order to recover ordinary litigation costs? Williams v. Chino Valley Independent Fire Dist., S213100, (opinion below E055755, formerly 218 Cal.App.4th 73). Review was granted 10/16/13.

Is Employment Arbitration Agreement Unconscionable if One Party Is More Likely to Use the Relief Provided? Is an employment arbitration agreement unconscionable for lack of mutuality if it contains a clause providing that either party may seek provisional injunctive relief in the courts and the employer is more likely to seek such relief?
Baltazar v. Forever 21, Inc., S208345 (opinion below B237173, formerly 212 Cal.App.4th 221). Review was granted 3/20/13, but briefing was deferred pending the decision in Wisdom v. Accentcare, Inc., S200128. Update 7/24/13: Review dismissed in Wisdom due to settlement. Update 8/28/13: Briefing ordered on the above issue. Update 9/11/13: Review granted in Leos v. Darden Restaurant, Inc., S212511 (opinion below B241630, formerly 217 Cal.App.4th 473), with briefing deferred pending decision in Baltazar.

Is the Employer’s Honest Belief That the Employee Was Violating Medical Leave Policy a Defense Under the Family Rights Act? After the Court of Appeal reversed a decision to vacate an arbitration award, the Court granted review on the following issues: (1) Is an employer’s honest belief that an employee was violating company policy or abusing medical leave a complete defense to the employee’s claim that the employer violated the Moore-Brown-Roberti Family Rights Act (Gov. Code §§ 12945.1, 12945.2)? (2) Was the decision below to vacate the arbitration award in the employer’s favor consistent with the limited judicial review of arbitration awards? Richey v. Autonation, Inc., S207536 (opinion below B234711, formerly 210 Cal.App.4th 1516, as modified 211 Cal.App.4th 701b). Review was granted on 2/13/13.

Is a Judgment Through Mandamus Review a Prerequisite for a Whistleblower Action by a Doctor Whose Privileges Were Terminated? After the Court of Appeal affirmed in part and denied in part an order denying a special motion to strike in a civil action, the Court granted review on the following issue: Must a physician obtain a judgment through mandamus review setting aside a hospital’s decision to terminate the physician’s privileges prior to pursuing a whistleblower retaliation action under Health and Safety Code § 1278.5? Fahlen v. Sutter Central Valley Hospitals, S205568 (opinion below F063023, formerly 208 Cal.App.4th 557).  Review was granted 11/14/12.  Update 12/5/13: Oral argument scheduled for 1/7/14. Update 1/7/14: Case argued and submitted. The briefs are hereUpdate 2/20/14: Opinion filed.  In resolving the conflict between appellate courts, the Court upheld the whistleblower statutes and held that when a physician claims under section 1278.5, that a hospital’s quasi-judicial decision to restrict or terminate his or her staff privileges was itself a means of retaliating against the physician for reporting concerns about the treatment of patients, the physician does not need to seek and obtain a mandamus judgment setting aside the hospital’s decision before pursuing a statutory claim for relief.

What is the Vicarious Liability of a Franchisor for the Tortious Conduct of a Supervising Employee of a Franchisee? After the Court of Appeal reversed a summary judgment, the court limited review to this issue: Whether the defendant franchisor is entitled to summary judgment on plaintiff’s claim that it is vicariously liable for tortious conduct by a supervising employee of a franchisee. Patterson v. Domino’s Pizza, LLC, S204543 (opinion below B235099, formerly 207 Cal.App.4th 385), review granted 10/10/12.  Update 2/13/13: Review granted in Monarrez v. Automobile Club of Southern California, S207726 (opinion below B233512, formerly 211 Cal.App.4th 177, as modified 211 Cal.App.4th 701a). Briefing was deferred pending a decision in Patterson Update 5/9/14: Oral argument scheduled for 6/4/14.  Update 6/4/14: Case argued and submitted. The briefs are here.

Did the U.S. Supreme Court Overrule Provisions of California Labor Law?
In reviewing an order compelling arbitration and dismissing class claims, the court granted review on the following issues: (1) Did AT&T Mobility LLC v. Concepcion (2011) 563 U.S. __ [131 S. Ct. 1740, 179 L.Ed.2d 742] impliedly overrule Gentry v. Superior Court (2007) 42 Cal.4th 443 with respect to contractual class action waivers in the context of non-waivable labor law rights? (2) Does the high court’s decision permit arbitration agreements to override the statutory right to bring representative claims under the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.)? (3) Did defendant waive its right to compel arbitration? Iskanian v. CLS Transportation Los Angeles, LLC, S204032 (opinion below, B235158, formerly 206 Cal.App.4th 949), review granted on 9/19/12. Update 10/29/12: Review granted in Caron v. Mercedes-Benz Financial Services USA LLC, S205263 (opinion below, G044550, formerly 208 Cal.App.4th 7), with briefing deferred pending resolution of IskanianUpdate 12/12/12: Review granted in Reyes v. Liberman Broadcsting, Inc., S205907 (opinion below B235211, formerly 208 Cal.App.4th 1537), with briefing deferred pending resolution of Iskanian.  Update 2/13/13: Review granted in Franco v. Arakelian Enterprises, Inc., S207760 (B232583, formerly 211 Cal.App.4th 314, as modified). Briefing was deferred pending a decision in Iskanian.  Update 4/10/13: Review granted in Flores v. West Covina Auto Group, LLC, S208716 (opinion below B238265, formerly 212 Cal.App.4th 895), with briefing deferred pending a decision in Iskanian. Update 9/11/13: Review granted in Brown v. Superior Court S211962 (opinion below H037271, formerly 216 Cal.App.4th 1302), with briefing deferred pending a decision in IskanianUpdate 3/6/14: Oral argument scheduled for 4/3/14.  Update 4/3/14: Case argued and submitted.  Update 6/25/14: review granted in Ybarra v. Apartment Investment & Management Co., S217994 (opinion below B245901, nonpublished),with briefing deferred pending a decision in Iskanian. Update 6/26/14: Opinion issued. The Court held that recent U.S. Supreme Court decisions have abrogated the Court’s decision in Gentry, and further rejected arguments that the class action waiver at issue here is unlawful under the National Labor Relations Act and that this employer waived its right to arbitrate by withdrawing its motion to compel arbitration after Gentry. Regarding the representative claim under PAGA, the Court found that a waiver of bringing such a claim in any forum was contrary to public policy, and that the FAA did not preempt a state law preventing such a waiver. Update 7/24/14: The Court issued a remittitur for Iskanian, but the other cases that were deferred pending Iskanian remain on the docket.

Does Use of False Documents to Obtain Employment Bar Claims under the Fair Employment and Housing Act? Did the trial court err in dismissing plaintiff’s claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff’s use of false documentation to obtain employment in the first instance? Did Senate Bill No. 1818 (2001–2002 Reg. Session) preclude application of those doctrines in this case? (See Civ. Code,§ 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000; Lab. Code, § 1171.5.) Salas v. Sierra Chemical Co., S196568 (opinion below C064627, formerly 198 Cal.App.4th 29). The petition was granted 11/16/11Update 2/17/13: The Court requested the parties to submit supplemental briefs addressing the following question: Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of “state labor and employment laws” (Lab. Code, § 1171.5; Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000), an award of compensatory remedies, including back pay? (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137.)  Update 2/26/14: Review granted in Horne v. District Council 16 Internat. Union of Painters & Allied Trades, S215870 (opinion below A135470, formerly 221 Cal.App.4th 1132). Briefing deferred pending resolution of SalasUpdate 3/6/14: Oral argument scheduled for 4/2/14. Update 4/2/14: Case argued and submitted.  Update 6/26/14: Opinion issued. The Court unanimously held that Senate Bill No. 1818 is not preempted by federal law, but disagreed 5-2 whether federal law only barred recover of lost pay for the period after the employer’s discovery of the employee’s ineligibility (the majority) or barred such a recovery altogether (Baxter, concurring and dissenting). The Court further ruled that the doctrines of after-acquired evidence and unclean hands are not complete defenses to a workers’ California FEHA claim, although they do affect the available remedies, and remanded for further proceedings.

Are Claims of State Labor and Insurance Laws Violations Preempted by the Federal Aviation Administration Authorization Act? Is an action under the Unfair Competition Law (Bus. & Prof. Code, § 17200 et seq.) that is based on a trucking company’s alleged violation of state labor and insurance laws “related to the price, route, or service” of the company and, therefore, preempted by the Federal Aviation Administration Authorization Act of 1994 (49 U.S.C. § 14501)? People ex re. Harris v. Pac Anchor Transportation, Inc., S194388 (opinion below B220966, formerly 195 Cal.App.4th 765). Review was granted 8/10/11.  Update 6/26/13: Court orders supplemental briefing addressing the effect of American Trucking Associations, Inc. v. City of Los Angeles (2013) 569 U.S. ___ [2013 U.S. LEXIS 4539], and Dan's City Used Cars, Inc. v. Pelkey (2013) 569 U.S. ___ [133 S. Ct. 1769] on the issue of preemption by the Federal Aviation Administration Authorization Act of 1994.  Update 12/11/13: Review granted in Rodriguez v. RWA Trucking Company, Inc., S214150 (opinion below B241727, as modified, formerly 219 Cal.App.4th 692).  Update 5/1/14: Oral argument scheduled for 5/28/14.  Update 5/28/14: Case argued and submitted. The briefs are here.

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