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THE SPLIT OF AUTHORITY BETWEEN STATE AND FEDERAL COURTS CONTINUES AS TO WHETHER ARBITRATION CLAUSES CAN PREVENT EMPLOYEES FROM FILING REPRESENTATIVE COURT ACTIONS UNDER THE PRIVATE ATTORNEY GENERAL’S ACT (PAGA)

  • April 6, 2017

Three recent state court decisions from the Fourth and Second Districts have come down in California, in validating attempts by employees to enforce arbitration clauses as they relate to representative actions under PAGA.  These cases are Montano v. Wet Seal Retail, Inc. (2017) 7 Cal.App.5th 1248; Betancourt v. Prudential Overall Supply (2017) __ Cal.Rptr.3d __, 2017 W.L. 895834 and Hernandez v. Ross Stores (2016) 7 Cal.App.5th 171.    In all three of these decisions, the courts of appeal affirmed decisions of the trial court in which the trial court refused to compel arbitration of PAGA representative actions even though the employee had signed an arbitration agreement, agreeing to arbitrate such claims.  In so ruling, these courts of appeal considered the California Supreme Court case of Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 381. In Iskanian, the California Supreme Court had determined that pre-dispute waivers of the right to bring class or representative actions were unenforceable.  However, the Iskanian case did not decide the issue of whether or not an employer could compel an employee to arbitrate representative PAGA claims.  Each of these recent appellate decisions relied upon the rationale of the Iskanian case to reach the conclusion that.......

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Your Independent Contractors Can Get You in Trouble

  • April 6, 2017

While most California employers are aware of the risks of misclassifying employees as “independent contractors”, a new California appellate decision named “SECCI v. United Independent Taxi Drivers, Cal.Rptr.3d ___ 2017, W.L. 605487, creates new concern for companies that use independent contractors.   This concern is that even properly classified independent contractors may be deemed to be an agent of the employer which subjects the employer to vicarious liability for the acts of those contractors. The employer in SECCI was a taxicab cooperative.  The plaintiff, a motorcycle driver, sued the taxicab driver and cooperative after he was injured during a car accident with the taxicab.  The plaintiff claimed that the taxicab driver was both employee of the cooperative, and its agent.  The jury found that the driver was the agent of the cooperative and held the cooperative liable for the acts of the driver. The trial court had granted the taxicab cooperative’s motion for judgment notwithstanding the verdict issue.  The Court of Appeal reversed the decision of the trial judge.  It determined that there was sufficient evidence of control to find an agency relationship, even though the jury found that there was insufficient evidence of control by the employer to satisfy the.......

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Recent Appellate Decisions – Spring 2017

  • April 6, 2017

FEDERAL In the case of Zetwick v. County of Yolo (2017) ___F.3d ___ 2017 W.L.710476, the 9th Circuit reversed and remanded a decision of the district court granting summary judgment to the defendant’s county and sheriff on a sexual harassment case. In so ruling, the 9th Circuit rejected defendant’s assertion that hugs were not the type of thing that could form the basis for a sexual harassment claim. Rather, the court said, “hugs can be the basis of a sexual harassment claim, if the hugs were both unwelcomed and occurred with sufficient frequency.” In the case of Reynaga v. Roseburg Forest Products (2017) 847 F.3d 678, the 9th Circuit affirmed in part and reversed in part the district court’s granting of summary judgment in the defendant’s favor on a racial/national origin discrimination case. The Mexican employee/plaintiff had brought an action against his former employer, alleging hostile work environment, disparate treatment and retaliation in violation of Title VII, section 1981 of the Civil Rights Act and state law. Plaintiff alleged a series of wrongful conduct in the workplace. He alleged that as the only Mexican millwright at the plant, that he was intimidated and harassed by the lead millwright because of.......

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