December 6, 2021

Volume XI, Number 340


December 03, 2021

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November 2021 California Employment Law Notes: Employee Updates

Employee Can Proceed With Age Discrimination Lawsuit Against LMU

Jorgensen v. Loyola Marymount Univ., 68 Cal. App. 5th 882 (2021)

Linda Jorgensen sued Loyola Marymount University for retaliation and age and gender discrimination.  In opposition to LMU’s summary judgment motion, Jorgensen provided a declaration from a former employee (Carolyn Bauer) who swore that Johana Hernandez (the assistant dean) told Bauer that she “wanted someone younger” for another position that was not being sought by Jorgensen.  LMU objected to Bauer’s evidence on the grounds of relevance, conjecture, speculation and hearsay.  In reversing the summary judgment motion, the Court noted that LMU’s objections were “wide of the mark.”  The Court held that a “stray remark” may have relevance in this case because “one might infer that Hernandez could influence [Stephen] Ujlaki, the school’s top decision-maker on all issues, including hiring and promotion.”  The Court further held that LMU’s other evidentiary objections should have been overruled, including the hearsay objection on the ground that the state-of-mind exception made admissible Bauer’s report of Hernandez’s remark.  See also Guzman v. NBA Auto., Inc., 68 Cal. App. 5th 1109 (2021) (employee’s administrative complaint sufficiently identified her employer despite erroneous identification of employer).

Company That Retained Independent Contractor Is Not Liable For Injury To Contractor’s Employee

Sandoval v. Qualcomm Inc., 12 Cal. 5th 256 (2021)

Qualcomm hired TransPower Testing, Inc., an electrical engineering service company, to inspect and verify the amperage capacity of Qualcomm’s existing switchgear equipment.  TransPower hired Martin Sandoval, an electrical parts supply and repair specialist, to conduct an inspection during which Sandoval was seriously injured.  The jury awarded Sandoval over $1 million for past and future medical expenses and $6 million for pain and suffering/emotional distress damages and apportioned the fault 46 percent to Qualcomm.  The Court of Appeal affirmed, but in this opinion, the California Supreme Court reversed, holding that Qualcomm owed Sandoval no injury-prevention duty in that it had turned over control of the worksite and presumptively delegated to TransPower any preexisting duties Qualcomm otherwise owed to Sandoval.  The Supreme Court also held that pattern jury instruction CACI No. 1009B does not adequately instruct juries on the applicable law.

Newspaper Delivery Carriers May Be Employees Under Borello Independent Contractor Test

Becerra v. The McClatchy Co., 2021 WL 4472625 (Cal. Ct. App. 2021)

Newspaper home delivery carriers for The Fresno Bee sued for violation of the Unfair Competition Law for failure to pay their mileage expenses as required by Cal. Lab. Code § 2802. The Trial court determined the carriers were independent contractors and not employees and entered judgment in favor of the Bee and its affiliated companies (McClatchy). On appeal, the carriers argued, among other things, that the test for employment set out in Dynamex Ops. W., Inc. v. Superior Court, 4 Cal. 5th 903 (2018) applies to the case.  The Court of Appeal held that the Dynamex ABC test does not apply because it is limited to claims governed by wage order that employ the “suffer or permit to work” standard, which are not at issue in this case.

However, the Court reversed the trial court’s judgment, holding that while the determination of whether the carriers are employees or independent contractors is governed by the common law test of S.G. Borello & Sons, Inc. v. Department of Indus. Relations, 48 Cal. 3d 341 (1989), the trial court failed to properly analyze the factors required by that opinion by, among other things, relying upon inapplicable regulations from the Employment Development Department.  See also Lawson v. Grubhub, Inc., 13 Cal. 4th 908 (9th Cir. 2021) (worker who did not sign class action waiver could not represent other similarly-situated workers who did; action remanded for decision of whether ABC test applies to expense reimbursement claims); American Soc. of Journalists & Authors, Inc. v. Bonta, 2021 WL 4568057 (9th Cir. 2021) (Assembly Bill 5 did not effectuate content-based preferences for certain kinds of speech by providing a narrower exemption for freelance writers and photographers).

Gas Station Manager Was An Employee Of Shell Oil

Medina v. Equilon Enter., LLC, 68 Cal. App. 5th 868 (2021)

Santiago Medina worked as a gas station cashier and manager for Equilon Enterprises, which is a Shell Oil Company subsidiary doing business as Shell Oil Products US.  Medina sued Equilon and Shell for various wage/hour violations, arguing that Shell was his joint employer.  The trial court granted Shell’s motion for summary judgment based upon two prior opinions of the California Court of Appeal, but the Court of Appeal reversed, holding that Shell both indirectly controlled Medina’s wages and working conditions and suffered or permitted him to work at Shell’s gas stations, either of which was enough to make Shell Medina’s joint employer.  The Court distinguished the earlier cases on the grounds that in this case Shell employees told Medina they had the power to fire him; Shell had control over Equilon’s bank accounts and received payments for fuel; and Shell had the power to add or remove individual stations to and from MSO operator clusters at any time for any reason.

Employer That Claimed Employment Records Were Stolen Cannot Challenge Calculation Of Lost Wages

Morales v. Factor Surfaces LLC, 2021 WL 4818687 (Cal. Ct. App. 2021)

Byron Jerry Morales sued his former employer, Factor Surfaces LLC, and its managing agent for unpaid overtime wages, meal and rest break compensation, statutory penalties, and wrongful termination, among other things.  After a bench trial, the court awarded Morales $99,394.16, including $42,792 in unpaid overtime wages.  On appeal, the employer argued the trial court erred in calculating Morales’ regular rate of pay.  At trial, the employer testified that all of Morales’ employment records were in his truck, which was stolen while parked in his gated complex, and that when the truck was recovered, all of the records were gone.  The trial court found the employer’s testimony regarding the theft of records to be “unbelievable and afforded no weight to that testimony.”  In the absence of proof from the employer of the regular rate of pay, the trial court relied upon calculations offered by Morales which were a “fair and accurate estimation of the overtime wages owed to him.” The Court of Appeal affirmed the judgment in favor of Morales.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 319

About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....