[UPDATED THROUGH SEPTEMBER 29, 2016]
When Are Substitute Teachers Entitles to Unemployment Benefits? After the Court of Appeal affirmed the judgment in an action for writ of administrative mandate, the Supreme Court granted review on the following issue: Are substitute teachers and other on-call paraprofessional employees entitled to unemployment insurance benefits when they are not called to work during a summer school term or session. United Educators of San Francisco etc. v. California Unemployment Ins. Appeals Bd., S235903, (opinion below, A142858, A143428, 247 Cal.App.4th 1235). Review was granted on 9/14/16.
Does Federal de Minimis Standard Apply to State Unpaid Wages Claim? At the request the U.S. Court of Appeals for the Ninth Circuit, under California Rules of Court, rule 8.548, the Supreme Court accepted review of the following question: Does the federal Fair Labor Standard Act’s de minimis doctrine, as stated in Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 692 (1946) and Lindow v. United States, 738 F.2d 1057, 1063 (9th Cir. 1984), apply to claims for unpaid wages under California Labor Code §§ 510, 1194, and 1197? Troester v. Starbucks Corp., S234969 (9th Circ. No. 14-55530; nonpublished order). Review was accepted on 8/17/16.
How to Calculate Overtime Pay for Mixed Compensation? After the Court of Appeal affirmed the judgment, the Supreme Court granted review on the following issue: What is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus? Alvarado v. Dart Container Corp. of California, S232607 (opinion below E061645, 243 Cal.App.4th 1200). Petition granted on 5/11/16.
May an Injured Worker Bring a Separate Medical Malpractice Claim Against Workers’ Compensation Utilization Review Company? After the Court of Appeal sustained the demurrer, but reversed to allow leave to amend, the Supreme Court granted review of the following issues: (1) Is a claim by an injured worker for medical malpractice brought against a workers’ compensation utilization review company barred by workers’ compensation as the exclusive remedy? (2) Does a workers’ compensation utilization review company that performs medical utilization reviews on behalf of employers owe a duty of care to an injured worker? (3) Did the Court of Appeal err in finding that plaintiffs should be given leave to amend their complaint in this case? King v. CompPartners, Inc., S232197 (opinion below E063527, formerly 243 Cal.App.4th 685). Review was granted 4/13/16.
In Performing Background Checks, How do Employers Decide Whether to Follow ICRAA and CCRA? After the Second District Court of Appeal reversed summary judgment for the defendant and held that both acts apply, the Supreme Court granted review of the following issue: Is the Investigative Consumer Reporting Agencies Act (Civ. Code, § 1786 et seq., “ICRAA”) unconstitutionally vague as applied to background checks conducted on a company’s employees, because persons and entities subject to both that Act and the Consumer Credit Reporting Agencies Act (Civ. Code, §1785.1 et seq., “CCRA”) cannot determine which statute applies? Connor v. First Student, Inc., S229428, (opinion below B256075, formerly 239 Cal.App.4th 526). Review was granted 11/24/15.
When can Plaintiff Obtain Employee Contact Information to Prepare a Representative Action? After the Second District Court of Appeal denied a petition for peremptory writ of mandate, the Supreme Court granted review on the following issues: (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information? (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360). Williams v. Superior Court, S227228, (opinion below B259967, formerly 236 Cal.App.4th 1151). Review was granted 8/19/15.
Can an Agricultural Employer Refuse to Bargain with an Elected Union, and What Penalties Follow from such Actions? After the Fifth District Court of Appeal affirmed in part and reversed in part a decision of the Agricultural Labor Relations Board, the Supreme Court granted review on the following issues: (1) May an employer assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union? Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., S227270, (opinion below, F069419, formerly 236 Cal.App.4th 1079). Review granted 8/19/15.
Can an Agricultural Employee Rely on the Statutory “Mandatory Mediation and Conciliation” Process? After the Fifth District Court of Appeal reversed in part and sustained in part a mandamus order of the Agricultural Labor Relations Board, and denied a petition for peremptory writ of mandate, the Supreme Court granted review on the following issues: (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit? Gerawan Farming, Inc. v. Agricultural Labor Relations Bd., S227243, (opinion below F068526, formerly 236 Cal.App.4th 1024). Review was granted 8/21/15.
What is the Status of Employees on Break but Still On Call? The Supreme Court granted review, after the Court of Appeal reversed the judgment in a civil action, on the following issues: (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833? Augustus v. ABM Security Services, Inc., S224853, (lead case below, B243788, formerly 233 Cal.App.4th1065). Review was granted 4/29/15. Update 8/3/16: Oral argument scheduled for 9/7/16. Update 8/8/16: Oral argument continued to 9/29/16. The briefs are here. Update 9/29/16: Cause argued and submitted.
How Does an Employer Apply the Day of Rest under Labor Code §§ 551, 552 and 556? In response to a request under C.R.C., rule 8.548 by the United States Court of Appeals for the Ninth Circuit, the Supreme Court certified the following issues in consolidated appeals: “(A) California Labor Code § 551 provides that ‘[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.’ Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period? (B) Labor Code § 556 exempts employers from providing such a day of rest ‘when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.’ (Emphasis added.) Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week? (C) Labor Code § 552 provides that an employer may not ‘cause his employees to work more than six days in seven.’ What does it mean for an employer to ‘cause’ an employee to work more than six days in seven: force, coerce, pressure, schedule, encourage, reward, permit, or something else? Mendoza v. Nordstrom, S224611 (9th Cir,. No. 12-57130; 778 F.3d 834, Central District of California; 8:10-cv-00109-CJC-MLG.) Certification granted on 4/29/15.
Which Definition of Employee and Independent Contractor Controls in Wage and Hour Class Action? After the Court of Appeal granted in part and denied in part a writ petition, the Supreme Court granted review on the following issue: In a wage and hour class action involving claims that the plaintiffs were misclassified as independent contractors, may a class be certified based on the Industrial Welfare Commission definition of employee as construed in Martinez v. Combs (2010) 49 Cal.4th 35, or should the common law test for distinguishing between employees and independent contractors discussed in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 control? Dynamex Operations West, Inc. v. Superior Court, S222732 (opinion below B249546, formelly 230 Cal.App.4th 718). Review was granted 1/28/15.
Does Federal Law Preempt the Recovery of Civil Penalties for Unfair Competition? After the Court of Appeal granted a writ petition, the Supreme Court granted review on the following issue: Does federal law preempt a district attorney’s attempt to recover civil penalties under California’s unfair competition law based on an employer’s violation of workplace safety standards that resulted in the deaths of two employees? Solus Industrial Innovations, LLC v. Superior Court, S222314 (opinion below G047661, formerly 229 Cal.App.4th 1291). Review was granted 1/14/15.
Can an Employee Who Retires Still Bring a Claim Under Labor Code § 203, and Can It Be Against the State Instead of the Hiring Agency? After the Court of Appeal found that retirees can bring such a claim, but affirmed dismissal of the State Controller’s Office as unnecessary, the Supreme Court granted review on the following issues: (1) When bringing a putative class action to recover penalties against an “employer” under Labor Code § 203, may a former state employee sue the “State of California” instead of the specific agency for which the employee previously worked? (2) Do Labor Code § 202 and § 203, which provide a right of action for an employee who “quits” his or her employment, authorize a suit by an employee who retires? McLean v. State of California, S221554 (opinion below, C074515, formerly 228 Cal.App.4th 1500). Review was granted on 11/25/14. Update 5/4/16: Oral argument scheduled for 5/26/16. The briefs are here. Update 5/26/16: Case argued and submitted. Update 8/18/16: Opinion filed. The unanimous Supreme Court affirmed the Court of Appeal, concluding that Labor Code §§ 202 and 203 apply when employees retire from their employment, and that the decision to name the State of California as a defendant, instead of the hiring agency, is not grounds for dismissal.
Does Employer Using Asbestos Owe a Duty to Employee’s Family?
The Supreme Court granted review in a pair of cases on the following issue: If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing? Haver v. BNSF Railway Co., S219919 (opinion below B246527, formerly 226 Cal.App.4th 1104, as modified 226 Cal.App.4th 1376b); and Kesner v. Superior Court, S219534 (opinion below A136378, formerly 226 Cal.App.4th 251). Review was granted on 8/20/14. Update 2/11/15: Review granted in Beckering v. Shell Oil, S223526 (opinon below B256407, nonpublished opinion), with briefing deferred pending a decision in Haver. Update 5/12/16: Oral argument scheduled for 6/2/16. Update 5/17/16: Case to be called and continued to September 2016 calendar. The Haver and Kesner cases are consolidated. Update 6/2/16: Case called and continued to September 2016. Update 8/3/16: Oral argument calendared for 9/7/16. The briefs are here. Update 9/7/16: Cause argued and submitted.