Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Articles Posted in Labor & Employment Law
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After attempting without success to raise her concerns about unsafe medical practices with her employer (ENTA), Armstrong filed a complaint with the Nevada Occupational Safety and Health Administration (NOSHA). Armstrong alleges that ENTA retaliated against her, leading her to file a second complaint. When Armstrong withdrew her complaint before ENTA learned of it, fearing further retaliation, NOSHA notified ENTA about the complaint. More retaliation followed. When she filed a third whistleblowing complaint, NOSHA ended the investigation. ENTA fired Armstrong.The Ninth Circuit reversed the dismissal of Armstrong’s 42 U.S.C. 1983 procedural due process claim. Although Armstrong was an at-will employee, Nevada's whistleblower protections can support a property interest in continued employment. Armstrong might be able to plausibly allege a relationship between Nevada officials and her termination sufficient to sustain a “direct participation” or “setting in motion” theory. Armstrong had a property right in the investigation of her complaint; she plausibly alleged that the process she received was essentially nonexistent. Armstrong did not sufficiently allege a substantive due process claim based on a liberty interest. Armstrong did not plausibly allege that the defendants’ actions entirely precluded Armstrong’s ability to work as a human resources professional elsewhere. The court erred in dismissing a negligent infliction of emotional distress claim. View "Armstrong v. Reynolds" on Justia Law

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In a putative class action by Domino’s drivers, asserting violations of various California labor laws, the district court denied a motion to compel arbitration based on its finding that the drivers were a “class of workers engaged in foreign or interstate commerce,” and were exempt from the Federal Arbitration Act (FAA), notwithstanding their contracts with Domino’s, which provided claims between the parties be submitted to arbitration under the FAA. The exemption applies if the class of workers is engaged in a “single, unbroken stream of interstate commerce” that renders interstate commerce a “central part” of their job description.The Ninth Circuit affirmed, rejecting Domino’s argument that the drivers who delivered goods to individual Domino’s franchisees in California were not engaged in interstate commerce because the franchisees, all located in California, placed orders with the supply center in the state, and the goods delivered were not in the same form in which they arrived at the supply center. Domino’s was directly involved in the procurement and delivery of interstate goods, was involved in the process from the beginning to the ultimate delivery of the goods, and its business included not just the selling of goods, but also the delivery of those goods. The transportation of interstate goods on the final leg of their journey by the Domino’s drivers satisfied the requirements of the residual clause. View "Carmona v. Domino's Pizza, LLC" on Justia Law

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The Ninth Circuit certified to the Supreme Court of Oregon the following question: Under Oregon law, is time that employees spend on the employer's premises waiting for and undergoing mandatory security screenings compensable? View "Buero v. Amazon.com Services, Inc." on Justia Law

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Fried worked as a manicurist, 2005-2017. Fried complained about female manicurists receiving most of the appointments and that other male manicurists also complained. In 2017, Fried became frustrated and threw a pencil at a computer because customers were requesting female manicurists more often than male manicurists. His manager disciplined him and commented that he might want to find other work. He alleges that his coworkers and customers made harassing comments and that he was told to finish a pedicure for a male customer who had solicited him for sex. Fried filed suit under Title VII, 42 U.S.C. 2000e, alleging sex discrimination, retaliation, and hostile environment.The Ninth Circuit reversed the summary judgment against Fried. A reasonable factfinder could decide that Fried’s employer created a hostile work environment. An employer can create a hostile work environment by failing to take immediate and corrective action in response to a coworker’s or third party’s sexual harassment or racial discrimination that the employer knew or should have known about. While comments made by a manager and coworkers on two occasions were insufficiently severe or pervasive to support a hostile work environment claim, an employer’s response to unwelcome sexual advances toward an employee can independently create a hostile work environment. Fried’s manager failed to take immediate corrective action and also directed Fried to return to the customer and complete his pedicure. The district court should reconsider the cumulative effect of the coworkers’ comments. View "Fried v. Wynn Las Vegas, LLC" on Justia Law

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Elkhorn is a farm labor contractor for a California-based vegetable grower. As part of Elkhorn’s orientation for incoming employees, Martinez-Gonzalez signed employment paperwork that included arbitration agreements. The district court held that the arbitration agreements resulted from undue influence and economic duress and were invalid and unenforceable.The Ninth Circuit reversed and remanded for determination of whether Martinez-Gonzalez’s allegation of federal and state labor and wage law violations fell within the scope of the arbitration agreements. Under California law, the doctrine of economic duress did not render the arbitration agreements unenforceable because Elkhorn did not commit a wrongful act and reasonable alternatives were available to Martinez-Gonzalez. Martinez-Gonzalez made the journey from Mexico to California, where he was dependent on Elkhorn housing and had already started work but, while “not ideal,” those circumstances did not constitute a “wrongful act” under California law. No one at Elkhorn told Martinez-Gonzalez that refusing to sign the agreements was a cause for termination. It was clearly erroneous for the district court to conclude that MartinezGonzalez lacked a reasonable alternative. The timing and place of the orientation did not show that Martinez-Gonzalez’s will was overborne; the lack of time to consult with attorneys or read the agreements did not improperly induce his signatures. Elkhorn’s representatives’ instructions to sign the agreements quickly were not insistent demands. View "Martinez-Gonzalez v. Elkhorn Packing Co. LLC" on Justia Law

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In 1993, the County and the Orange County Employee Retirement System (OCERS) entered into a Memorandum of Understanding (MOU), allowing the County to access surplus investment earnings controlled by OCERS and depositing a portion of the surplus into an account to pay for county retirees' health insurance. The county adopted the Retiree Medical Plan, funded by those investment earnings and mandatory employee deductions. The Plan explicitly provided that it did not create any vested rights. The labor unions then entered into MOUs, requiring the county to administer the Plan and that retirees receive a Medical Insurance Grant. In 1993-2007, retired employees received a monthly grant benefit to defray the cost of health insurance. In 2004, the county negotiated with its unions to restructure the underfunded program, reducing benefits for retirees.Plaintiffs filed suit. The Ninth Circuit affirmed summary judgment in favor of the county. The 1993 Plan explicitly provided that it did not create any vested right to benefits. The Plan was adopted by resolution and became law with respect to Grant Benefits, part of the MOUs. The MOUs expired on their own terms by a specific date. Absent express language providing that the Grant Benefits vested, the right to the benefits expired when the MOUs expired. The Plan was not unilaterally imposed on the unions and their employees without collective bargaining; the unions executed MOUs adopting the Plan. The court rejected an assertion that the Grant Benefit was deferred compensation and vested upon retirement, similar to pension benefits. View "Harris v. County of Orange" on Justia Law

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California’s AB 5 codified the “ABC test” for ascertaining whether workers are classified as employees or independent contractors. The ABC test permits businesses to classify workers as independent contractors only if they meet certain conditions. If a business cannot make that showing, its workers are deemed employees, and the business must comply with specific requirements and state and federal labor laws. AB5 and its amendments, California Labor Code 2778, establishes certain occupational exemptions. Freelance writers, photographers, and others received a narrower exemption than offered to certain other professionals. The Association sued, asserting that AB5 effectuates content-based preferences for certain kinds of speech, burdens journalism, and burdens the right to film matters of public interest.The Ninth Circuit affirmed the dismissal of the suit. Section 2778 regulates economic activity rather than speech. It does not, on its face, limit what someone can or cannot communicate. Nor does it restrict when, where, or how someone can speak. The statute is aimed at the employment relationship—a traditional sphere of state regulation. Although the ABC classification may impose greater costs on hiring entities, which could mean fewer overall job opportunities for certain workers, such an indirect impact on speech does not necessarily rise to the level of a First Amendment violation. The court rejected an assertion that the law singled out the press as an institution and was not generally applicable. The legislature’s occupational distinctions were rationally related to a legitimate state purpose. View "American Society of Journalists and Authors, Inc. v. Bonta" on Justia Law

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Hawkins, a Navy veteran, suffered a mental breakdown at work. She was escorted from her workplace in handcuffs and hospitalized for observation. She sought follow-up psychiatric care at a VA hospital. According to Hawkins, the VA doctors who treated her negligently failed to prescribe medication to address severe insomnia and anxiety, despite her complaints that the antidepressant she had been prescribed was not helping. Hawkins suffered another psychotic break during which she attacked and seriously wounded her mother. Hawkins spent a year in jail, lost her job as an RN, and has been unable to return to work.Hawkins sued under the Federal Tort Claims Act (FTCA), alleging medical malpractice. Hawkins claimed that her mental breakdown, which prompted her to seek medical care, was caused by years of workplace bullying and harassment by her supervisor. The Ninth Circuit reversed the dismissal of the suit. The Federal Employees’ Compensation Act, 5 U.S.C. 8101(1), bars a suit against the government for damages under any other law, including the FTCA. Before filing this action, Hawkins pursued a claim under FECA; the Office of Workers’ Compensation Programs determined that the alleged workplace bullying and harassment did not occur. If the OWCP had determined that the injury for which Hawkins sought medical care was sustained during the course of her employment, her FTCA action would have been barred. View "Hawkins v. United States" on Justia Law

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Ballou filed suit, 42 U.S.C. 1983, asserting that Police Chief McElvain discriminated against her because of her gender by intentionally subjecting her to internal affairs investigations to preclude her eligibility for promotion and then declining to promote her to sergeant even though she was the most qualified candidate.The Ninth Circuit affirmed the denial of McElvain’s qualified immunity summary judgment motion. Ballou sufficiently alleged unconstitutional sex discrimination in violation of the Equal Protection Clause and established a prima facie claim for disparate treatment. McElvain’s articulated reasons for not promoting Ballou were pretextual. The court rejected, as “profoundly mistaken,” McElvain’s argument that to state an equal protection claim, proof of discriminatory animus alone was insufficient. The existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment. Based on Circuit precedent, any reasonable officer would recognize that discriminatorily conducting an investigation to stall a promotion is unconstitutional. The court held that it lacked jurisdiction to consider whether McElvain was entitled to qualified immunity on the Equal Protection claim that she suffered retaliation for opposing sex discrimination. The court affirmed the denial of qualified immunity on Ballou’s First Amendment retaliation claim. Ballou’s speech opposing sex discrimination in the workplace was inherently speech on a matter of public concern, protected by the First Amendment. View "Ballou v. McElvain" on Justia Law

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The Ninth Circuit affirmed the district court's denial of class certification in an action alleging minimum wage, overtime, and expense reimbursement claims against Grubhub. Plaintiff contends that he was misclassified as an independent contractor rather than an employee when he worked for Grubhub as a food delivery driver.The panel concluded that the district court properly denied certification to plaintiff's proposed class of delivery drivers in California where all members of plaintiff's putative class—except plaintiff and one other—signed agreements waiving their right to participate in a class action. The panel explained that the district court correctly held plaintiff did not satisfy the requirements in Federal Rule of Civil Procedure 23(a) because he is neither typical of the class nor an adequate representative, and because the proceedings would be unlikely to generate common answers. The panel rejected Grubhub's claim that California Proposition 22 abated the application of the ABC test to plaintiff's pending class claim. In this case, there is no dispute that plaintiff’s minimum wage and overtime claims are rooted in wage orders. The panel concluded that, because the district court rendered its judgment before the California Supreme Court decided Dynamex Operations W., Inc. v. Superior Court, 416 P.3d 1, 33–40 (Cal. 2018), it had no occasion to apply the ABC test to plaintiff's claims. The panel remanded for the district court to apply the ABC test in the first instance to plaintiff's expense reimbursement claim. View "Lawson v. Grubhub, Inc." on Justia Law