Articles Posted in Labor & Employment Law

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Plaintiffs filed suit challenging Ordinance 124968, which permits independent-contractor drivers, represented by an entity denominated an "exclusive driver representative," and driver coordinators to agree on the "nature and amount of payments to be made by, or withheld from, the driver coordinator to or by the drivers." The Ninth Circuit reversed the district court's dismissal of the Chamber's federal antitrust claims because the ordinance sanctions price-fixing of ride-referral service fees by private cartels of independent-contractor drivers. The panel held that the State-action immunity doctrine did not exempt the ordinance from preemption by the Sherman Act because the State of Washington had not clearly articulated and affirmatively expressed a state policy authorizing private parties to price-fix the fees that for-hire drivers pay to companies like Uber or Lyft in exchange for ride-referral services. Furthermore, the active-supervision requirement for state-action immunity applied, and was not met. The panel affirmed the district court's dismissal of the Chamber's National Labor Relations Act preemption claims. View "U.S. Chamber of Commerce of the United States v. Seattle" on Justia Law

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The Ninth Circuit certified the following questions of state law to the Supreme Court of California: (1) Wage Order 9 exempts from its wage statement requirements an employee who has entered into a collective bargaining agreement (CBA) in accordance with the Railway Labor Act (RLA). Does the RLA exemption in Wage Order 9 bar a wage statement claim brought under California Labor Code 226 by an employee who is covered by a CBA? (2) Does California Labor Code 226 apply to wage statements provided by an out-of-state employer to an employee who resides in California, receives pay in California, and pays California income tax on her wages, but who does not work principally in California or any other state? View "Ward v. United Airlines, Inc." on Justia Law

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The Ninth Circuit certified the following questions of state law to the Supreme Court of California: (1) Do California Labor Code 204 and 226 apply to wage payments and wage statements provided by an out-of-state employer to an employee who, in the relevant pay period, works in California only episodically and for less than a day at a time? (2) Does California minimum wage law apply to all work performed in California for an out-of-state employer by an employee who works in California only episodically and for less than a day at a time? (3) Does the Armenta/Gonzalez bar on averaging wages apply to a pay formula that generally awards credit for all hours on duty, but which, in certain situations resulting in higher pay, does not award credit for all hours on duty? View "Oman v. Delta Airlines, Inc." on Justia Law

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The Ninth Circuit reversed the district court's denial of class certification in a putative class action alleging employment claims against Corona Medical Center and UHS of Delaware. Plaintiffs moved for certification of seven classes of Registered Nurses, alleging that they were underpaid by Corona. The panel held that the district court's typicality determination was premised on an error of law; Plaintiff Spriggs was not an adequate class representative, but Plaintiff Sali remained as an adequate representative plaintiff; the district court abused its discretion by concluding that attorneys from Bisnar Chase could not serve as adequate class counsel; and the district court erred by denying certification of the proposed rounding-time and wage-statement classes on the basis that they failed Rule 23(b)(3)'s predominance requirement. Accordingly, the panel remanded for further proceedings. View "Sali v. Corona Regional Medical Center" on Justia Law

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The 90-day period referenced in 42 U.S.C. 2000e-5(f)(1) begins when the aggrieved person is given notice of the right to sue by the EEOC. Plaintiff filed suit against her former employer, GME, ultimately alleging claims under Title VII of the Civil Rights Act of 1964. The Ninth Circuit held that plaintiff's Title VII claims may be based on alleged acts occurring after she filed her first administrative charge only to the extent such acts are part of a single unlawful employment practice. In this case plaintiff's claims based on her first administrative charge were timely, but claims based on a second administrative charge were untimely. The panel explained that plaintiff could base her Title VII claims on GME's alleged acts occurring after she filed her first administrative charge to the extent she could show such acts were part of a single hostile work environment claim. The panel affirmed the district court's grant of summary judgment only as to claims based on discrete discriminatory or retaliatory acts occurring after plaintiff filed her first administrative charge. The panel otherwise reversed and remanded. View "Scott v. Gino Morena Enterprises, LLC" on Justia Law

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The Ninth Circuit granted the Board's petition for enforcement and denied Casino Pauma's petition for review. The panel upheld the Board's conclusion that it may apply the National Labor Relations Act (NLRA) to the relationship between employees working in commercial gaming establishments on tribal lands and the tribal governments that own and manage the establishments, and that Casino Pauma committed unfair labor practices in violation of the NLRA by trying to stop union literature distribution. The panel also held that the Board permissibly applied the rule regarding employee solicitation established in Republic Aviation Corp. v. NLRB, 324 U.S. 793, 798 (1945), to customer-directed union literature distribution. In this case, the Board's conclusion that Casino Pauma violated its employees' NLRA right to distribute union literature was adequately supported, both by the applicable legal principles and the record. View "Casino Pauma v. NLRB" on Justia Law

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The question before the Ninth Circuit was "simple:" could an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the Court determined the answer was clearly "no." Prior to the Court's decision here, the law was unclear whether an employer could consider prior salary, either alone or in combination with other factors, when setting its employees’ salaries. The Ninth Circuit took this case en banc in order to clarify the law, and held prior salary alone or in combination with other factors could not justify a wage differential. "To hold otherwise - to allow employers to capitalize on the persistence of the wage gap and perpetuate that gap ad infinitum - would be contrary to the text and history of the Equal Pay Act, and would vitiate the very purpose for which the Act stands." The Fresno County Office of Education (“the County”) did not dispute that it paid Aileen Rizo (“Rizo”) less than comparable male employees for the same work. However, it argued this wage differential was lawful under the Equal Pay Act. The County contended that the wage differential was based on a fourth, "catchall exception: a 'factor other than sex.'” The Ninth Circuit surmised this would allow the County to defend a sex-based salary differential on the basis of the very sex-based salary differentials the Equal Pay Act was designed to cure. Because the Court concluded that prior salary did not constitute a “factor other than sex,” the County failed as a matter of law to set forth an affirmative defense. The Court affirmed the district court’s denial of summary judgment to the County and remanded for further proceedings. View "Rizo v. Yovino" on Justia Law

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The Ninth Circuit granted the union's petition for review of the Board's order declining to award make-whole relief. This case arose when the now-defunct Hacienda Resort Hotel and Casino and Sahara Hotel and Casino in Las Vegas violated section 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(a)(5), by unilaterally terminating the union's dues-checkoff without bargaining to agreement or impasse. The panel held that the Board clearly abused its discretion in declining to award the standard remedy of make-whole relief where it did not provide a valid explanation for departing from its standard remedy in dues-checkoff cases, and where the Board effectively ordered no relief at all by ordering prospective-only relief against defunct entities. The panel vacated the Board's order and remanded for the Board to award standard make-whole relief. View "Local Joint Executive Board of Las Vegas v. NLRB" on Justia Law

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The Ninth Circuit granted the union's petition for review of the Board's order declining to award make-whole relief. This case arose when the now-defunct Hacienda Resort Hotel and Casino and Sahara Hotel and Casino in Las Vegas violated section 8(a)(5) of the National Labor Relations Act (NLRA), 29 U.S.C. 158(a)(5), by unilaterally terminating the union's dues-checkoff without bargaining to agreement or impasse. The panel held that the Board clearly abused its discretion in declining to award the standard remedy of make-whole relief where it did not provide a valid explanation for departing from its standard remedy in dues-checkoff cases, and where the Board effectively ordered no relief at all by ordering prospective-only relief against defunct entities. The panel vacated the Board's order and remanded for the Board to award standard make-whole relief. View "Local Joint Executive Board of Las Vegas v. NLRB" on Justia Law

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Petitioner filed suit under the Whistleblower Protection Act against the Department of Defense, alleging that the Department took several adverse personnel actions against him in retaliation for his protected disclosures about misconduct at the Defense Contract Audit Agency (DCAA). The Ninth Circuit denied the petition for review of the Board's adverse decision. The panel considered all the Carr factors (Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)), and held that substantial evidence supported the Board's determination that the agency proved, by clear and convincing evidence, that it would have taken the same disciplinary action against petitioner in the absence of his whistleblowing activities. The panel also held that the administrative judge did not abuse its discretion by excluding witnesses, as well as documents and emails. View "Duggan v. Department of Defense" on Justia Law