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

The Ninth Circuit affirmed the NLRB's decision that PSAV did not violate the Act by failing to produce documents responsive to Local 15's first document request. At issue in this collective bargaining case was whether PSAV effectively retracted its claim of inability to pay the union's wage and benefits proposals, thereby limiting its obligation to produce financial documents to the union, and whether PSAV failed to bargain in good faith.The panel held that substantial evidence supported the Board's findings that PSAV did retract its inability-to-pay claim. In this case, PSAV did not refer to financial nonviability after retracting its inability-to-pay claim, nor does the larger context of the parties' negotiations suggest that PSAV’s position was based on a lack of financial viability. The panel also held that PSAV's conduct both at and away from the bargaining table did not establish that it acted in bad faith in violation of the National Labor Relations Act. View "International Alliance of Theatrical Stage Employees v. National Labor Relations Board" on Justia Law

Luna is a former employee of Hansen, which employs over 1,100 big rig truckers, mechanics, dispatchers, and other support staff. Hansen’s hiring process involved a Commercial Driver Employment Application, which included notices and authorizations permitting Hansen to retrieve safety history and driving records, and conduct drug and background checks. Job applicants signed “the disclosure,” which appeared on a separate sheet of paper, and informed applicants “that reports verifying your previous employment, previous drug and alcohol test results, and your driving record may be obtained on you for employment purposes,” and “the authorization,” at the end of the Application, which indicated that an applicant’s signature authorized Hansen “to investigate my previous record of employment” and included other notices, waivers, and agreements unrelated to acquiring the consumer report.Luna filed a putative class action alleging Hansen ’s hiring process violated the Fair Credit Reporting Act (FCRA). The Ninth Circuit affirmed summary judgement in favor of Hansen. FCRA forbids procurement of a consumer report for employment purposes unless “a clear and conspicuous disclosure has been made in writing ... in a document that consists solely of the disclosure.” 15 U.S.C. 1681b(b)(2)(A)(i). Hansen’s disclosure may have been provided alongside other application materials, but it appeared in a standalone document, as FCRA requires. View "Luna v. Hansen & Adkins Auto Transport, Inc." on Justia Law

The Ninth Circuit certified the following question to the Arizona Supreme Court: Has Arizona consented to damages liability for a State agency's violation of the minimum wage or overtime provisions of the federal Fair Labor Standards Act? View "Redgrave v. Ducey" on Justia Law

Plaintiff filed a putative class action alleging that Zumiez failed to pay employees at its California retail stores reporting time pay for "Call-In" shifts. The district court denied Zumiez's motion for judgment on the pleadings. While this appeal was pending, the California Court of Appeal decided Ward v. Tilly's, Inc., 243 Cal. Rptr. 3d 461 (Ct. App. 2019), review denied (May 15, 2019), which held that reporting time pay must be paid in a closely analogous situation, an outcome consistent with the district court's denial of Zumiez's motion for judgment on the pleadings here.The Ninth Circuit followed Ward's controlling interpretation of the law and affirmed the district court's judgment with respect to the reporting time pay claim. The panel also affirmed the district court's judgment as to the failure-to-pay-minimum-wage claim and the related remaining claims. In this case, the allegations were sufficient to defeat Zumiez's motion for judgment on the pleadings. The panel reversed as to plaintiff's claim for indemnification and remanded for the district court to allow plaintiff leave to amend the complaint to include more specific allegations. The panel remanded for further proceedings. View "Herrera v. Zumiez, Inc." on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Secretary in an action against ESSG and three related companies under the Fair Labor Standards Act (FLSA). The Secretary challenged ESSG's failure to pay overtime to employees who worked more than 40 hours in a workweek.The panel held that the district court correctly found no dispute of material fact as to ESSG's ultimate liability under the FLSA. Consistent with the law of agency, the panel imputed the actions of an employee to ESSG where she admitted that she knew the recruited employees were not being paid overtime owed to them. The panel also held that the three-year statute of limitations applied to the Secretary's claim that ESSG committed a willful violation, making this action timely. The panel affirmed the award of liquidated damages where ESSG's violations were willful and thus it did not act in good faith. Finally, the panel joined the Second Circuit in holding that the FLSA does not imply a right to contribution or indemnification for liable employers. View "Scalia v. Employer Solutions Staffing Group, LLC" on Justia Law

On remand from the Supreme Court, the Ninth Circuit affirmed the district court's order denying defendant's motion for summary judgment on plaintiff's claims under the Equal Pay Act (EPA). The en banc court held that plaintiff's prior rate of pay was not a "factor other than sex" that allows Fresno County's Office of Education to pay her less than male employees who perform the same work. The en banc court also held that only job-related factors may serve as affirmative defenses to EPA claims.The en banc court wrote that the express purpose of the Act was to eradicate the practice of paying women less simply because they are women, and that allowing employers to escape liability by relying on employees' prior pay would defeat the purpose of the Act and perpetuate the very discrimination the EPA aims to eliminate. Therefore, the en banc court held that an employee's prior pay cannot serve as an affirmative defense to a prima facie showing of an EPA violation. The en banc court overruled Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir. 1982), which held that prior pay could qualify as an affirmative defense if the employer considered prior pay in combination with other factors and used it reasonably to effectuate a business policy. View "Rizo v. Yovino" on Justia Law

Casino slot technicians are not "guards" under section 9(b)(3) of the National Labor Relations Act. Under the Act the NLRB, cannot certify a union to represent "guards," as the term is used in the statute, if that union also represents non-guard employees.The Ninth Circuit held that the slot technicians' duties differed in fundamental respects from those of the surveillance technicians in Bellagio, LLC v. NLRB, 863 F.3d 839 (D.C. Cir. 2017). Therefore, the panel denied Station GVR's petition for review of the NLRB's decision certifying the union as the slot technicians' bargaining representative, based on the NLRB's determination that the slot technicians are not guards. The panel granted the NLRB's cross-application to enforce its order requiring GVR to bargain with the union.The panel denied the union's petition for review of the NLRB's decision not to order an affirmative remedy requiring GVR to provide the union with certain information that it had requested in a letter to the company. The panel held that the union was not a "person aggrieved" and thus did not have standing to bring its petition. In this case, the Board granted it all of the relief that it had specifically sought in the charge form and complaint. View "International Union of Operating Engineer Local 501 v. National Labor Relations Board" on Justia Law

The Ninth Circuit affirmed the district court's dismissal, under Federal Rule of Civil Procedure 12(b)(6), of plaintiff's EEO complaint challenging his removal from his job as a power-plant mechanic with the Army Corps of Engineers. 5 U.S.C. 7121(d), a provision of the Civil Service Reform Act of 1978 (CSRA), provides that unionized federal employees seeking to bring discrimination claims may "raise the matter" through either (1) their union's negotiated procedure, or (2) their agency's EEO office, "but not both."In light of the wording and legislative history of 5 U.S.C. 7121(d), as well as the persuasive consensus among courts within and outside this circuit, the panel adopted the definition of the term "matter" as set forth in Bonner v. Merit Systems Protection Board, 781 F.2d 202 (Fed. Cir. 1986), and held that the term "matter" in section 7121(d) refers to the "underlying action" in the collective bargaining agreement (CBA) grievance or the EEO complaint. In this case, plaintiff's EEO complaint raised the same matters as previously covered in plaintiff's union grievance. Furthermore, the panel would not impute a hostile-work-environment claim where no such allegation expressly appeared in the EEO complaint. The panel noted that, although plaintiff's EEO complaint was barred, there was a procedure available to him to raise his hostile-work-environment claim in the grievance process. View "Heimrich v. United States Department of the Army" on Justia Law

The Ninth Circuit affirmed the district court's damages award in a class action brought by long-haul truck drivers in California, alleging that Wal-Mart violated state meal and rest break laws. The panel held that Wal-Mart raised no reversible error.The panel rejected Wal-Mart's claim that the district court erred by failing to dismiss for lack of jurisdiction, and held that the district court correctly concluded that this case presented an Article III case or controversy because two lead plaintiffs remained in the action after the stay was lifted. The panel rejected Wal-Mart's claims that plaintiffs should not have been awarded damages for layovers, rest breaks, and inspections. The panel held that the district court correctly concluded that, under California law, time drivers spent on layovers is compensable if Wal-Mart exercised control over the drivers during those breaks; a more comprehensive review of the Wal-Mart pay manual demonstrates that it unambiguously required drivers to obtain preapproval to take a layover at home; the district court correctly determined that Wal-Mart's written policies constituted control as a matter of California law; the district court properly instructed the jury because the initial instruction on layovers and the supplemental instruction in response to a jury question—when viewed as a whole—fairly and accurately covered the issues, correctly stated the law, and were not misleading or prejudicial; the jury's factual finding, that Wal-Mart exercised control over its drivers under California law, is supported by substantial evidence; and the Federal Aviation Administration Authorization Act does not preempt California meal and break laws.Finally, the panel affirmed the district court's judgment on damages for rest breaks and inspections; held that the district court did not err in certifying a class and allowing representative evidence as proof of classwide damages; and held that the district court did not err in finding that Wal-Mart acted in good faith and with a reasonable belief in the legality of its action. View "Ridgeway v. Walmart Inc." on Justia Law

Plaintiff filed suit alleging that CFS and two of its employees fired him from his position as a social services practitioner in retaliation for his whistleblowing activities, in violation of California Labor Code section 1102.5 and 42 U.S.C. 1983. The County's Civil Service Commission upheld the termination and denied plaintiff's appeal, and the district court dismissed the action.The Ninth Circuit held that the Commission's order did not preclude plaintiff's section 1102.5 claim for retaliation in light of Taswell v. Regents of Univ. of Cal., 232 Cal. Rptr. 3d 628, 643 (Ct. App. 2018). In Taswell, the California Court of Appeal applied a legislative-intent exception and held that administrative findings by a state agency do not preclude claims for retaliation brought under section 1102.5. However, the panel's conclusion regarding legislative intent did not extend to plaintiff's claim under section 1983, which was precluded by the Commission's order. In this case, plaintiff had a full opportunity to litigate the propriety of his termination before the administrative agency, as evidenced by the comprehensive evidentiary record and the availability of judicial review. Accordingly, the panel affirmed in part, reversed in part, and remanded. View "Bahra v. County of San Bernardino" on Justia Law