Articles Posted in Labor & Employment Law

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The Ninth Circuit affirmed the Board's determination that CVMC committed serious and widespread unfair labor practices before and after the Union election in violation of the National Labor Relations Act (NLRA). The panel also granted the Union's petition for review of an issue regarding whether CVMC's written policy banning employees from communicating with the media should be rescinded as an unfair labor practice. In this case, CVMC's meritless due process argument did not preclude summary enforcement of the Board's order; CVMC violated Section 8(a)(1) and (3) by firing an employee; CVMC violated Section 8(a)(1) by serving subpoenas seeking information about confidential union activity protected by Section 7; CVMC's unfair labor practices warranted the Board's remedy of a reading order; and remand was appropriate for the Board to address an unfair labor practice that was litigated and closely connected to the complaint. View "United Nurses Associations of California v. NLRB" on Justia Law

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No provision with the force of law permits the Department of Labor to require employers to engage in time tracking and accounting for minutes spent in diverse tasks before claiming a tip credit. The Ninth Circuit vacated the district court's final orders and judgments in favor of defendants in an action brought by former servers and bartenders under the Fair Labor Standards Act (FLSA), 29 U.S.C. 206(a)(1)(c). Plaintiffs alleged that their employers improperly claimed their tips as a credit toward the required minimum wage. The panel held that the DOL's interpretation, in its Field Operations Handbook, of 29 C.F.R. 531.56(e), a regulation addressing application of the FLSA's tip credit provision to the situation in which an employee works for an employer in two different jobs, did not merit controlling deference because the DOL's interpretation was inconsistent with the dual jobs regulation and attempted to create de facto a new regulation. In this case, plaintiffs could not state a claim under section 206 by alleging that discrete "related" tasks or duties, which were performed intermittently over the course of the day and were intermingled with their duties directed at generating tips, comprise a dual job when aggregated together over the course of a workweek. The panel remanded to allow plaintiffs opportunities to propose new amended complaints. View "Marsh v. J. Alexander's LLC" on Justia Law

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The Ninth Circuit affirmed the district court's judgment in favor of plaintiff in an action filed under the Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901 et seq. The panel held that the district court properly instructed the jury that the vessel owner owed a duty to plaintiff as a longshoreman to turn over the ship and its equipment in a reasonably safe condition, which necessarily required the vessel owner to take reasonable steps to inspect the ship and equipment before turnover; the district court did not abuse its discretion in allowing plaintiff's key scientific expert to describe his theory of electrical injury because the district court adequately assessed the reliability of his theory and fulfilled its gatekeeping function under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579; and there was no error in admitting the medical experts' testimony. View "Murray v. Southern Route Maritime SA" on Justia Law

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Plaintiff filed suit against BNSF, alleging that the company terminated him in violation of the California Fair Employment and Housing Act (FEHA), Cal. Gov. Code 12940 et seq. The Ninth Circuit applied the McDonnell Douglas test and affirmed the district court's grant of summary judgment to BNSF, holding that plaintiff failed to establish a prima facie case of discrimination based on his obstructive sleep apnea (OSA) where no evidence established that plaintiff's OSA was a substantial motivating reason for BNSF's decision to terminate him. Even if plaintiff had made a prima facie case of discrimination, plaintiff failed to offer evidence that BNSF's stated reason -- recurrent absenteeism -- was either false or pretextual. Therefore, BNSF did not engage in unlawful discrimination by declining to alter plaintiff's disciplinary outcome based on his OSA diagnosis. Finally, the panel rejected plaintiff's claim that BNSF failed to provide a reasonable accommodation and interactive process claims. View "Alamillo v. BNSF Railway Co." on Justia Law

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The City of Los Angeles, which operates Los Angeles International Airport (LAX), can require businesses at the airport to accept certain contractual conditions aimed at preventing service disruptions. The City licenses service providers using a contract that imposes certain conditions. One such condition, section 25, requires service providers to enter a "labor peace agreement" with any employee organization that requests one. The Ninth Circuit affirmed in part and vacated in part the dismissal of an action by two air transport trade associations. The panel held that ASPA meet all the requirements for associational standing; the City was acting as a market participant and not a regulator when it adopted section 25; and, because nothing in the National Labor Relations Act, the Railway Labor Act, and the Airline Deregulation Act shows that Congress meant to preempt states or local governments from actions taken while participating in markets in a non-regulatory capacity, section 25 was not preempted by those federal statutes. The court also held that the district court erred by denying leave to amend the complaint for plaintiffs to identify large spillover effects that might substantiate their claim that section 25 acted as a regulation. View "Airline Service Providers Assoc. v. Los Angeles World Airports" on Justia Law

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The Ninth Circuit certified the following question of state law to the Supreme Court of California: Is time spent on the employer's premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as "hours worked" within the meaning of California Industrial Welfare Commission Wage Order No. 7? View "Frlekin v. Apple, Inc." on Justia Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for Hilton on plaintiff's age discrimination claims. Plaintiff was 60 years old when he was terminated from his position as part of a reduction-in-workforce (RIF) in 2012. Applying the McDonnell Douglass test, the panel held that plaintiff satisfied the elements for establishing a prima facie case of discrimination; Hilton produced evidence showing that it acted for a legitimate, nondiscriminatory reason; and plaintiff failed to introduce sufficient evidence to raise a genuine issue of material fact as to whether the reasons Hilton articulated were pretexts for age discrimination. The panel considered the context of this case, including Hilton's lost profits during the economic downturn, a series of layoffs, the overall age of the workforce, the fact that plaintiff survived previous RIFs, and the business reasons for selecting his position for elimination. Consequently, plaintiff's remaining claims also failed. View "Merrick v. Hilton Worldwide, Inc." on Justia Law

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The Ninth Circuit certified the following question to the Washington Supreme Court: Whether an employer's compensation plan, which includes as a metric an employee's "production minutes," qualifies as a piecework plan under Wash. Admin. Code 296-126-021. View "Hill v. Xerox Business Services, LLC" on Justia Law

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Plaintiffs appealed the dismissal of their claims under the California Labor Code Private Attorneys General Act of 2004 (PAGA) against Nordstrom, alleging violations of California's "day of rest" law. The Ninth Circuit certified three questions of state law to the California Supreme Court in an earlier order and the California Supreme Court answered the questions. In this case, because the facts stipulated that neither plaintiff worked more than six consecutive days in any one Nordstrom workweek, each of their individual claims under Labor Code sections 551 and 552 failed. Therefore, the district court did not err by dismissing the case and thus the panel affirmed the judgment. View "Mendoza v. Nordstrom, Inc." on Justia Law

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After plaintiff was raped by a co-worker at the Idaho Department of Corrections (IDOC), she filed suit against the IDOC and others. The Ninth Circuit vacated summary judgment in favor of defendants on plaintiff's Title VII hostile work environment claim. The panel held that, viewing the evidence in the light most favorable to plaintiff, a reasonable trier of fact could find that the IDOC's actions were sufficiently severe or pervasive to create a hostile work environment. The panel noted that if the jury finds that the IDOC supervisors created a hostile work environment, the IDOC would also be liable. View "Fuller v. Idaho Department of Corrections" on Justia Law