California Supreme Court Civil Issues Pending: Labor/Employment/Workers’ Compensation

[UPDATED THROUGH MARCH 28, 2016]

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 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 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, this 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 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 8/21/17.

Is Health Care Industry Meal Period Waiver Valid? The Court granted review after the Court of Appeal reversed the judgment in a civil action, on the following issues: (1) Is the health care industry meal period waiver provision in section 11(D) of Industrial Wage Commission Order No. 5-2001 invalid under Labor Code section 512(a)? (2) Should the decision of the Court of Appeal partially invalidating the Wage Order be applied retroactively? Gerard v. Orange Coast Memorial Medical Center, S225205, (opinion below G048039, formerly 234 Cal.App.4th 285). Review was granted 5/20/15.

What is the Status of Employees on Break but Still On Call? The 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.

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 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 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 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 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.

Does Employer Using Asbestos Owe a Duty to Employee’s Family?The 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.

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. Update 12/3/15: Oral argument scheduled for 1/5/16. The briefs are here. Update 1/5/16: Case argued and submitted.

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. Update 9/30/15: Review in Sabia v. Orange County Metro Realty, Inc., S220237. (opinion below B243141, formerly 227 Cal.App.4th 11), was further deferred pending the resolution of Baltazar. Briefing in Sabia was previously deferred pending the resolution of Sanchez, S199119 (see 61 Cal.4th 899). Update 12/3/15: Oral argument scheduled for 1/5/16. The briefs are here. Update 1/5/16: Case argued and submitted. Update 3/28/16: Opinion issued. The unanimous Court affirmed the Court of Appeal, finding that since the subject provision simply repeated the applicable law, i.e, C.C.P. § 1281.8(b), it did not render the arbitration agreement unconscionable.