RB - Everything Flashcards
What is the case that says concurrently executed unconscionable Confidentiality Agmt invalidates Arb Agmt?
Alberto v. Cambrian Homecare
2nd District (April 19, 2023)
Standalone arb agmt was unconscionable based on terms contained within the employer’s confidentiality agreement.
Because the arbitration and confidentiality agreements were presented to the employee at the time of hire and related to the employee’s employment,
the Court found that the employer’s confidentiality agreement was part of the “contract” to arbitrate, and the two agreements must be read together.
Confidentiality agreement allowed Cambrian to seek an immediate court injunction
Procedural Unconscionability
* 6-point font (12 pt normal)
* 6.4 point line spacing (normal in Word in 7.2 pt)
* On back side of form
63 yr old Vietnam vet with poor eyesight processed money transfers at Walmart
Fisher v. MoneyGram Int’l., Inc. (2021)
66 Cal.App.5th 1084
(1DCA / Alameda S. Ct.)
Ortiz v. Randstad Inhouse Services, LLC
9th Cir
March 13, 2024
D = Randstad Inhouse & GXO Logistics Supply Chain
(operated warehouse & distribution facilities for ADIDAS)
P = equipment operator
(Ortiz moved Adidas products around GXO’s warehouse)
Unload packages, mostly from international locations & prepare them to leave the warehouse for destinations across the US
Ortiz’s class of workers played a direct and necessary role in the free flow of goods across borders
FAA - Section 2
Language?
Savings Clause
An arb agmt is enforceable, “save upon such grounds as exist at law or in equity for the revocation of any contract.”
FAA - Section 1
Language?
FAA does not apply “to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”
Southwest Airlines Co. v. Saxon
US S. Ct.
(June 6, 2022)
Airline Ramp Supervisors
Court held that they were “engaged in foreign or interstate commerce” because she was loading and unloading baggage, mail, and cargo.
Bissonnette v. LePage Bakeries Park St., LLC
US S. Ct.
(April 12, 2024)
Wonder Bread truck drivers
KEY
- Does the worker play a direct and necessary role in the free flow of goods across borders?.”
- Industry does not matter
==============================
Court resolved a circuit split regarding exemption to the FAA’s general rule (that arbitration agreements are “valid, irrevocable, and enforceable, save upon grounds as exist at law or in equity for the revocation of any contract.” See 9 U.S.C. § 2. )
- Section 1 of the FAA exempts from its broad sweep the employment contracts of* “seamen, railroad employees, or other classes of workers engaged in foreign or interstate commerce.”*
- It held that a worker need not be in the transportation industry to assert the “transportation worker” exemption. Instead, the analysis focuses on whether the worker plays “a direct and necessary role in the free flow of goods across borders.”
- The Supreme Court rejected the industry-focused test because it said the test would result in ambiguities and the need for mini-trials to determine whether an employer was in the transportation industry or not.
FACTS
Bissonnette and Wojnarowski were franchisees who
owned the rights to distribute Flowers products in certain
parts of Connecticut. Flowers baked the bread and buns
and sent them to a warehouse in Waterbury. Bissonnette
and Wojnarowski picked them up and distributed them to
local shops. They allegedly spent at least forty hours a
week delivering Flowers products in their territories. But
their jobs extended beyond carrying the products from
Point A to Point B. They also found new retail outlets, advertised, set up promotional displays, and maintained their
customers’ inventories by ordering baked goods from Flowers, stocking shelves, and replacing expired products.
Trial courts cannot strike a PAGA claim solely on manageability grounds
Estrada v. Royal Carpet Mills
(Jan. 18, 2024)
Cal S. Ct.
The ruling does not bar trial courts from using other “tools”, such as limiting testimony, types of evidence, using representative testimony, surveys, ensure that “PAGA claim[s] are effectively tried.”
What is the court case that said federal courts have no discretion to dismiss once the case was sent to arb (and moving party requested a stay)?
Smith v. Spizzirri
US S. Ct
5-16-24
misclassification case for delivery drivers
District Court and even 9th Cir said district courts had discretion to stay or dismiss outright if all claims are subject to arbitration
REVERSED
What is a Skelly hearing?
Pre-discplinary/termination hearing for public employees
A Skelly Hearing is a pre-disciplinary hearing named after a 1975 California Supreme Court case which solidified public employees’ rights when faced with disciplinary action.
A Skelly Hearing is part of due process to provide public employees with the reason for disciplinary action before that action is taken.
Public employees are given notice of allegations against them and have the opportunity to respond by refuting the allegations or proposing an alternative remedy or discipline.
Skelly Hearings were originally only given before job termination, but they have since expanded and it is common to have a Hearing before many disciplinary actions.
CA Minimum Wage
for non-exempt & exempt EEs
various cities
California State Minimum Wage for Hourly Employees:
Beginning on January 1, 2024, the minimum hourly wage for Employers of all sizes is $16.00/hour.
California State Minimum Wage for Exempt Employees: Beginning on January 1, 2024, the minimum salary for Exempt employees in California will increase to $66,560/year, or $1,280/week.
Long Beach, CA:
$17.55/hour for hotels with 100 or more guest rooms (as of 07/01/2023)
Los Angeles County, CA (unincorporated):
$16.90/hour (as of 07/01/2023)
Los Angeles, CA (city):
$16.78/hour; $19.73/hour for hotels with 60 or more rooms (as of 07/01/2023)
Pasadena, CA:
$16.93/hour (as of 07/01/2023)
San Diego, CA (city):
$16.85/hour (as of 01/01/2024)
San Francisco, CA (city & county):
$18.07/hour (as of 07/01/2023)
Santa Monica, CA:
$16.90/hour; $19.73/hour for hotels and businesses operating on hotel property (as of 07/01/2023)
West Hollywood, CA:
$19.08/hour (as of 07/01/2023)
What type of workers are exempt from OT laws in CA?
The following job categories and occupations have exempt status under California labor law. Therefore, overtime wages and other wage and hour laws do not apply.
White-collar jobs (executive, administrative, and professional employees) – It is a common misconception that anyone who is paid a salary or works in an office is an exempt employee under this category.2 To be exempt, “white-collar” employees must:
>Have primary duties that are executive, administrative or professional (this generally means that 50% or more of their work time must be devoted to such tasks, such as general business operations); and
>Regularly and customarily exercise discretion and independent judgment at work; and
>Earn a salary equivalent to at least twice the state minimum wage for full-time employment (40 hours/week).
Computer professionals – This exemption applies to employees who work primarily in computer systems analysis, software or hardware design or computer system or program design or development. All of the following must be true true:
>The employee is primarily engaged in intellectual or creative work that requires the exercise of discretion and independent judgment; and
>The employee is highly skilled and proficient in the application of highly specialized information to computer systems analysis, programming or software engineering; and
>The employee earns at least $55.58 per hour, or $115,763.35 per year paid on a monthly basis (these figures are as of 2024 and will increase with inflation).
Doctors and surgeons – To be exempt, doctors must earn at least $101.22 per hour or the full-time salary equivalent.8 This exemption does not apply to residents, interns or doctors covered under collective bargaining agreements.9
K-12 private school teachers – In order to qualify for this wage/hour exemption, a teacher must:
>be primarily engaged in the task of imparting knowledge to students; and
>customarily and regularly exercise discretion and independent judgment; and
>have either a bachelor’s or higher degree from an accredited university or valid teaching credentials; and
>earn the greater of: 100% of the lowest salary offered by any school district in California to credentialed teachers, or 70% of the lowest salary offered to credentialed teachers by the school district in the city or county where the private school is located.
Government and University of California employees
Outside salespeople – To be exempt, the following must be true:
>The employee’s primary duty must be making sales (as defined in the FLSA), or obtaining orders or contracts for services or for the use of facilities for which a consideration will be paid by the client or customer; and
>The employee must be customarily and regularly engaged away from the employer’s place or places of business.
Commission-earning employees – This exemption applies to people who earn:
>earn more than one and one-half times the minimum wage (as of 2024, more than $24.00 per hour); and
>earn more than half of their compensation from commissions.14
**Truck drivers **– Interstate truck drivers and truckers transporting hazardous materials are exempt from overtime laws but not for meal and rest break laws.
Union employees – There must be a collective bargaining agreement with explicit terms governing hours, wages, and working conditions. Pay must be at least 30% higher than the state minimum wage, and there must be a premium wage rate for overtime work.
Other exempt jobs – California’s “wage orders” specify certain occupations as exempt due to the nature of the work. Some of these include:
>Old-age home managers
>Certain nannies
>Live-in domestic help
>Ambulance drivers and attendants;
>Agricultural laborers
>Personal attendants
>Camp counselors
>The spouse, children, and parents of the employee
>
Note that** registered nurses** are non-exempt employees unless they are primarily engaged in executive or administrative tasks and meet the other requirements of the white-collar exemption.15
What is the McGill rule?
Arbitration clause that bars a plaintiff from seeking PUBLIC INJUNCTIVE RELIEF in any forum is UNENFORCEABLE.
McGill v. Citibank NA (2017) - Cal S. Ct.
Must benefit the GENERAL PUBLIC
Is this hours worked?
Time spent on ER’s presmise in a POV and waiting to scan ID bad, then exiting security gate
Yes.
Huerta v. CSI Electrical Contractors, Inc.
Cal S. Ct. (3-25-24)
Elements of ABC Test
- Free from Control and Direction of ER?
- Is the work “outside the usual course” of ER’s biz?
- Engaged in indepenently established trade, occupation, or biz?
Should pretrial detainees be paid minimum wage for work?
No.
Ruelas v. Alameda County (Cal. S. Ct. 4-22-24)
13th Amendment
-allows for “involuntary servitude as a punishment for crime” (thats why prisons and contractors can employ inmates at a fraction of cost)
But, then non-convicted detainees have a diff status.
Even then, Cal S.Ct. said no.
RB: Seems unfair. Aramark Correctional Services was making money off these pre-trial detainees.
What’s the case that says franchisor not liable for franchisee?
Patterson v. Domino’s Pizza
Cal. S. Ct (2014)
In a significant win for franchisors, the California Supreme Court ruled 4-3 that although Domino’s “imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform way,” it cannot be held vicariously liable as an “employer” or “principal” in a sexual harassment lawsuit filed by an employee of a Domino’s franchisee. The Court’s ruling is important for several reasonPatterson v. Domino’s Pizza
Cal. S. Ct (2014)
In a significant win for franchisors, the California Supreme Court ruled 4-3 that although Domino’s “imposes comprehensive and meticulous standards for marketing its trademarked brand and operating its franchises in a uniform way,” it cannot b
s:
Under Patterson, franchisors will not be held vicariously liable for employment and tort claims brought by their franchisees’ employees, unless they exercise control over the manner and means by which their franchisees hire, fire, discipline, or manage their employees;
Patterson authorizes franchisors to impose a “comprehensive operating system” designed to protect their trademarks, trade names, and goodwill without creating a principal-agent relationship with their independent contractor franchisees; and
The ruling is a significant contrast to the current National Labor Relations Board’s (NLRB) quixotic attempt to redefine joint-employer status vis-à-vis franchisors, such as McDonald’s (discussed here), in an attempt to pave the way for widespread union organizing efforts.
The Court’s ruling in Patterson confirms the validity and intent of the franchise model and provides franchisors with a road map on how to structure and operate the system to promote and protect their brand without exposure for tort claims brought by their franchisees’ employees.
What is LMRA exemption?
1 Does the claim involves a right that solely exists as a result of the CBA?. If yes, then the claim is preempted.
Under LMRA section 301 (“Section 301”), federal courts have jurisdiction to decide disputes that arise out of CBAs.
When an issue involves both an agreement’s provision and a state law, determining whether the state law is preempted requires application of a two-part test.
In short, the state law claim is not preempted if it doesn’t involve issues about CBA’s scope, meaning or application.
What is SDI?
What is State Disability Insurance (“SDI”)?
SDI is a CA state program administered by the EDD. SDI provides partial wage replacement when workers can’t work due to physical and mental injuries, illnesses, and other health conditions.
Who is covered by SDI?
Almost all workers in California are covered by the program, and may receive benefits if they meet the eligibility requirements. However, workers in certain jobs cannot get SDI, such as certain domestic workers, independent contractors, election campaign workers, and student workers working for their school.
What are the requirements for receiving SDI benefits?
To receive SDI benefits, you must have a “disability,” as defined below, and be under the ongoing care of a licensed health care provider or authorized religious practitioner. You must apply promptly, have been working or looking for work when the disability began, and have sufficient past earnings in your “base period.”
What is a “disability” for purposes of SDI?
A “disability” is any mental or physical condition that stops you from performing your usual work (or, if you are unemployed, a condition that stops you from being able to look for work) for more than one week. Almost any health condition may be an SDI disability, including physical illness, mental illness, injuries, surgery, pregnancy, childbirth, and being in treatment for drug or alcohol abuse. A licensed health care professional (or an authorized religious practitioner) must sign a form stating that your disability is preventing you from working.
What if I am out of work when I become disabled?
A person who is unemployed may become “disabled” and entitled to SDI. As long as you were actively looking for work when your disability began, and you have earnings in your base period, you can seek benefits.
How do I apply for SDI?
The fastest and easiest way to file a claim is online through the EDD’s website, http://www.edd.ca.gov/.
What is the time limit for applying?
**You must apply for SDI within 49 days of the date your disability stopped you from working or looking for work. ** However, if you miss the deadline, you might still be eligible for SDI if you have a good reason for being late. For example, if you misunderstood something that the EDD told you on the phone and didn’t realize you were eligible for SDI until after the deadline had passed, your application will probably be accepted.
Retirement & Golf
Golf is a game invented by God to punish guys who retire early.
Hot coffee case against McDonald’s
Stella Liebeck
79 yrs old
New Mexico
Passenger
1992 - 49 cent coffee
Held coffee between her thighs (no cup holder)
Spilled coffee on her lap
3rd degree burn / skin grafting / very severe burns
Offer to settle for $11k in medical expenses
McDonald’s best offer $800.
Coffee was 180-190 F (defective) - should be 160 degrees
Jury -
20% P’s fault
80% D’s fault
$160k compensatory
$2.7 mil in punitives (reduced to $480k)
-2 days of coffee sales
McDonald’s
>Admitted to knowing about 700 previous injuries
>Failed to warn customers re danger
What is the Feres doctrine?
Gov’t cannot be sued for injuries incident to military service (some exemptions exist but narrow).
What is the hearing condition where someone cannot discern sounds in noisy environment?
Cochlear Synaptopathy
(aka Hidden Hearing Loss)
It describes hearing loss that cannot be measured by standard hearing tests, even though patients report difficulty hearing, especially in background noise.
There is still plenty of research to be done in this area, but initial research suggests that hidden hearing loss is caused by damage to cells in the hearing organ (cochlea) in the inner ear. These cells connect the hearing organ to the brain. Once damaged, these cells are no longer able to send information to the brain. This can cause the brain to not receive a clear sound signal and to not interpret the sound correctly.
Turrieta v. Lyft
2nd District
Sep. 30, 2021
PC - The Graves Firm (reached $15 mil settlement)
Intervenors
>#1 Jahan Sagafi / Olivier Schreiber & Chao
>#2 Shannon Liss-Riordan
Holding - PAGA Ps in other cases DO NOT have standing to intervene.
No personal interest, as the case is on behalf of the State.
Accurso v. In-N-Out Burgers
1st District
Aug. 29, 2023
PC - Lebe Law (entered into $2.05 mil settlement)
Intervenors - Aiman-Smith & March / L&E / Sahag Majarian
6 complaints filed in 4 diff counties
Accurso was the 5th case filed
HOLDING - Intervenors were not entitled to intervention as-of-right BUT concluded that the trial court didn’t consider whether permissive intervention would be appropriate, based on the intervenors’ claim that they should be given “a seat at the table” because their PAGA claims over
What is the case that says construction industry CBA signed after EE terminated is still okay to prevent PAGA claim?
Oswald v. Murray Plumbing and Heating Corporation
82 Cal.App.5th 938 (2022)
2nd District Court of Appeal
Labor Code section 2699.6,
>construction employees who perform work under a CBA in effect any time before January 1, 2025, that meets specific requirements cannot bring PAGA claim
>even for CBA with a retroactive date, signed after an employee was terminated
