PAGA: Here, There, Anywhere?

According to a recent unanimous decision by the California Court of Appeal’s First District, an action alleging violations of California’s Private Attorneys General Act (“PAGA”) may be filed in any county where any allegedly aggrieved employee worked or alleges to have suffered violations of the Labor Code.  It does not matter where the employee suing the company worked or where the employer-company is located. 

Union-Backed Challenge to Proposition 22 Rejected by California Supreme Court

The California Supreme Court has rejected an emergency constitutional challenge filed by drivers for Uber, Lyft and other app-based companies and various unions requesting that the Court declare the voter-approved Proposition 22 unconstitutional.  Proposition 22 (“Prop 22”) permits some app-based gig ride-hailing and delivery companies to continue to classify workers as independent contractors despite California’s adoption of the stringent ABC test for worker classification (discussed here).  The union-backed challenge to Prop 22 was not decided on the merits and continued legal activity challenging Prop 22 is expected.  The lawsuit is entitled Hector Castellanos, et al. v. State of California, et al., Case Number S266551.

COVID Class Action Report: Nike Settles Class Action By Providing Retail Employees with Transparent Face Coverings

In order to resolve a COVID-era class action lawsuit concerning its retail stores, Nike has agreed to provide all retail store employees with transparent, see-through face coverings to accommodate its customers who are deaf or hard of hearing and rely on lip reading. Nike’s new policy is part of a proposed settlement following a class action suit against the shoe company’s retail operations.

Categories: Class Action
Tags: COVID-19

In a landmark decision issued on January 14, 2021, entitled Vazquez v. Jan-Pro Franchising Int’l Inc. (2021) (“Vazquez”), the California Supreme Court held that the State’s ABC test applies retroactively to cases that were pending at the time of its decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (“Dynamex”).  Vazquez v. Jan-Pro Franchising Int’l Inc. (2021) 2021 Westlaw 127201.   The Vazquez Court was asked by the Ninth Circuit Court of Appeals to answer the question of whether Dynamex applies retroactively.  In concluding that it does, the Court noted that Dynamex does not impact any settled law, the general rule that judicial decisions are given retroactive effect, and that public policy and fairness concerns favor applying Dynamex retroactively.  Vazquez, however, comes as a significant blow to businesses by making them potentially liable for lawsuits pending long before the ABC test existed.

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Employment Arbitration Agreements & PAGA — Choose Your Words Carefully

Drafting arbitration provisions in the employment context is becoming a form of art. Recent decisions issued by the California Courts of Appeal highlight to employers that even valid arbitration agreements are subject to the court’s scrutiny when it comes to representative actions under the California’s Private Attorneys General Act (“PAGA”), and may not achieve the intended result depending upon the language used in the arbitration agreement.

Categories: Wage & Hour
Tags: PAGA

On September 2, 2020, the Ninth Circuit Court of Appeals ruled in Frlekin v. Apple, Inc. (Case No. 15-17382) that Apple must compensate a certified class of California non-exempt employees for time spent waiting for, and submitting to, bag searches required by Apple’s policies. 

This decision underscores the need for employers to be vigilant in ensuring compliance with California’s complex framework of wage and hour laws, and, perhaps more importantly, the importance of minimizing class action exposure through carefully-drafted arbitration agreements.

Three months since our last update on the impact of COVID-19 on commercial lease payment obligations (here), COVID-19 continues its onslaught throughout the United States with now more than 717,000 confirmed cases in California alone. The State of Emergency in California continues, and the Executive Order that previously granted local jurisdictions the authority to impose moratoriums on residential and commercial evictions has likewise been extended. This alert will address the continuing moratoriums on commercial evictions throughout various jurisdictions at the local level, and their impact on commercial lease payment obligations.

Categories: Business, Lease

In MSY Trading Inc., et al. v. Saleen Automotive, Inc., the California Court of Appeal recently ruled on a question of first impression: whether a postjudgment, independent action to establish alter ego liability for a judgment on a contract is subject to an award of attorney fees (pursuant to the contract) for a prevailing party, even if the prevailing party had not signed that contract.  The Court of Appeal affirmed that any prevailing party, having prevailed in an action based on the contract, could properly seek attorney fees as allowed by the contract.  The Court of Appeal also noted that had such alter ego allegations been made in the prior breach of contract action, the prevailing party would most certainly have been entitled to recover its attorney’s fees —  therefore, the postjudgment, independent action to establish alter ego liability on that judgment must be considered an action based on the contract.

Categories: Business, Litigation

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