• Measure would have overturned San Francisco anti-vape law
• Case survived motion to dismiss in April

• Workers challenge commissions, reimbursements
• Trial court properly certified case as class action

Container ship operator failed to establish that a unit of the ILWU violated the National Labor Relations Act by obtaining and seeking to enforce an arbitrator’s decision to award cargo handling work to the union’s members.

• Deal provides $10.9 million to class of 4,800
• $5,000 award for class representative

• California delivery drivers alleged misclassification, wage, and overtime claims
• Class members will split about $12.2 million

• NLRB misapplied law, erroneously ruled in IBEW’s favor
• Longshoremen asserted right to maintenance, repair work

The Ninth Circuit held Wednesday that International Longshore and Warehouse Union members are entitled to do all the maintenance and repair work at the Pacific Maritime Association’s West Coast port facilities, nixing a National Labor Relations Board order saying otherwise.

• NLRB didn’t explain unfair labor practices ruling, D.C. Cir. says
• Merits ruling that preceded settlement agreement vacated

Wells Fargo and a class of employees accusing the bank of making them pay for work expenses and issuing late commissions asked a California federal judge to approve an amendment to their proposed settlement adding $1.9 million to the original $8.95 million agreement.

• New classification of systems administrators added to union unit
• University refused to bargain, appealed unfair practice charge

• Workers sued under FLSA, San Francisco wage rules
• Auto-cargo port terminal falls under City ordinance

• California state employees brought Janus challenge to union dues
• Membership agreements valid, enforceable

• Steel, crane company alleged collusion to prevent competition
• Impact of agreement doesn’t show intent

• Brewery allegedly ordered employees to stop wearing pins at work
• Workers say brewer threatening to freeze pay

• Class deal affects nearly 1,900 loan officers
• Bank accused of California labor violations

• At least $5 Million in unreimbursed expenses
• case includes 53 drivers

• Labor union challenged switch from traditional pension to 401(k)-like plan
• State agency correctly sided with labor in ordering negotiations

• Ninth Circuit rejects Bank of America bid to appeal class certification in California loan officer suit
• Class could include more than 1,800 loan officers

On July 27, 2016, the Northern District of California granted preliminary approval of a $1.5 million settlement on behalf of a class of current and former asbestos remediation workers employed directly by P.W. Stephens Environmental, Inc. The settlement, if it wins the Court’s final approval, will resolve state and federal wage and hour claims arising from allegations that Defendant P.W. Stephens failed to pay its workers minimum and overtime wages, regular wages, and reporting time pay; failed to reimburse for business expenses; failed to provide duty-free meal periods or pay premiums for missed meal breaks; and failed to maintain accurate records and provide accurate wage statements.

A group of former Amazon Prime Now delivery drivers in California filed a wage and hour law
class action Oct. 27 claiming that the recently launched instant delivery service uses courier service
drivers who are misclassified as independent contractors (Truong v. Amazon.com, Inc.,
Cal. Super. Ct., BC598993, complaint filed 10/27/15).

Alameda Superior Court finds that City of Oakland is denying public access to City Council meetings and orders more seats opened.

Contra Costa County Judge Barry Goode granted preliminary approval of a class action settlement for claims against Univision Radio by current and former California employees selling radio advertising. The employee’s claims are that Univision Radio did not reimburse Advertising Sales Representatives for business expenses they paid out-of-pocket while working for Univision, including car expenses, cell phone expenses and money Advertising Sales Representatives spent “wining and dining” clients. The lawsuit sought to recover these expenses, as well as related penalties and interest.

Some 2,300 package delivery drivers formerly working for FedEx in California were employees,
rather than independent contractors, under state law based on evidence of the company’s right to
control their work hours, routes, appearance and equipment, the U.S. Court of Appeals for the
Ninth Circuit ruled Aug. 27 ( Alexander v. FedEx Ground Package System, Inc., 2014 BL 237668,
9th Cir., 12-17458, 8/27/14 ).

Ninth Circuit Court of Appeal has found that workforce of FedEx Ground drivers are employees, not independent contractors, under California’s right-to-control test. The court reverses both the MDL Court’s grant of summary judgment to FedEx and its denial of plaintiffs’ motion for partial summary judgment. As a result, FedEx could be liable for hundreds of millions of dollars in drivers’ operating expenses and wages.

Exotic dancers have been bringing more wage and hour lawsuits over the past few years, and
federal and state courts increasingly are finding the dancers are employees rather than
independent contractors, upending a long-established and previously unquestioned business
model in the strip club industry, wage and hour attorneys told Bloomberg BNA.

By Lisa Nagele 2014-07-01T00:00:00000-04:00

California newspaper carriers may bring a class action asserting they were misclassified as
independent contractors, but their overtime and break claims require individualized inquiries that
cannot be managed as a class, the California Supreme Court affirmed June 30 ( Ayala v. Antelope
Valley Newspapers, Inc. , 2014 BL 181910, Cal., S206874, 6/30/14 ).

Antelope Valley Newspapers Inc. publishes a daily newspaper and contracts with individual carriers
to deliver the paper to its subscribers. Three individual carriers filed an action claiming they were
misclassified as independent contractors and were actually employees entitled to overtime pay and
other wage and hour provisions under California law.

The only issue addressed on appeal was whether the case could proceed as a class action. The
carriers argued they should be permitted to bring a class claim, based in part on standardized
contracts the company entered into with all its carriers. Antelope Valley asserted that individual
variations in how carriers accomplished their work precluded resolution on a common basis.

The trial court denied class certification, concluding that the determination of workers’ status as
employees or independent contractors would require “heavily individualized inquiries” into the extent
of control Antelope Valley exercised over the carriers’ work. Furthermore, the carriers’ overtime and
break period claims “would require additional claim-specific individualized inquiries,” the trial court
held.

A state appeals court agreed with the trial court on the overtime and break period inquiries. However,
it reversed the trial court’s ruling on employee status, and the California Supreme Court affirmed. The
proper inquiry is not how much control the company actually exercises over the workers’ duties, but
whether the company has a legal right to control the work and whether that legal right is commonly
provable, wrote Justice Kathryn M. Werdegar for the state high court.

Predominant Common Question.

While several factors are considered in determining whether class certification is appropriate, the sole
factor at issue on appeal was whether the claim involved common questions of law or fact, the court
said. Thus, the relevant inquiry was “whether the operative legal principles, as applied to the facts of
the case, render the claims susceptible to resolution on a common basis,” Werdegar wrote.

The common law test to determine whether the carriers were employees or independent contractors
considers “whether the hirer ‘retains all necessary control’ over its operations,” the court explained,
citing S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal. 3d 341 (1989). And the
most convincing evidence of the right to control is the power to terminate workers without cause, the
court said.

In order to obtain class certification, there should be a common, or individual but manageable, way to
assess the company’s degree of control under the common law test, the court said. Here, the trial
court erred by focusing on variations in the degree to which the company exercised control over its
carriers, such as specifying delivery practices on how to fold or bind papers, the court said, whereas
the proper focus is on variations in the degree to which the company had the right to control the
carriers’ work.

In finding that a common question was presented, the supreme court relied on standardized contracts
that governed the relationship between the carriers and the company. These form contracts provided
similar terms for all carriers, such as what was to be delivered and the time and manner of delivery,
as well as the company’s right to discharge carriers without cause if it provided 30 days’ notice.
“At the certification stage, the importance of a form contract is not in what it says, but that the degree
of control it spells out is uniform across the class,” the court said.

Materiality of Secondary Factors Must Be Weighed.

In addition to the primary inquiry into the company’s right of control, the court also addressed
secondary, supplemental factors. These factors include the length of time for which the services are
expected to be performed and who provides the place of work.
In determining class certification, the court must consider the materiality of variations in secondary
factor, the court said. Some variations “may be of no consequence if they involve minor parts of the
overall calculus and common proof is available of key factors such as control, the skill involved, and the right to terminate at will.”

However, variations that make it difficult to prove significant factors on a common basis could make a
trial unmanageable even if other factors are common, the court said.

Implications for Workers and Employers.

If the carriers are found to be employees, Antelope Valley may owe them certain duties under
California law, the court said, but if the carriers are held to be independent contractors, the company
will not be liable.

“This is a major victory for workers who have been misclassified as independent contractors and are
denied essential work place protections,” said Aaron Kaufmann, an Oakland-based attorney who
argued a portion of the case to the supreme court as amicus curiae on behalf of the California
Employment Lawyers’ Association, a workers’ rights advocacy group.

“It is important that these misclassifications be challenged on a group basis, because individuals often
fear retaliation if they come forward on their own or they don’t have the resources to take on their
employer by themselves,” Kaufmann said in a June 30 statement.

However, questions still remain for employers. Jeremy Mittman, a management attorney with
Proskauer, said: “Many were expecting the Court to clarify which test is the proper one in determining
whether an independent contractor has been classified as such, so it’s somewhat disappointing that
the court did not address that issue.”

“While it’s tempting for the plaintiff’s bar to want to use the outcome … to advance their efforts in the
wage and hour class certification war, the decision is fairly limited in scope,” Mittman told Bloomberg
BNA June 30.

“Yes, the existence of a common agreement was found to support class certification, but it’s really
due to the unique nature of the test-which asks whether the hirer has the ‘right to control’ the worker.
But that right doesn’t even need to be exercised, so long as it exists on paper in an agreement. Most
employee tests or standards don’t operate that way. So, employers shouldn’t necessarily be shaking
in their boots today,” Mittman said.

Chief Justice Tani Cantil-Sakauye and Justices Joyce L. Kennard, Carol A. Corrigan, and Goodwin
Liu joined the majority opinion. Justice Marvin R. Baxter wrote a concurring opinion joined by Justice
Goodwin Liu. Justice Ming W. Chin also wrote a concurring opinion.

Callahan & Blaine of Santa Ana, Calif., represented the plaintiffs. Perkins Coie of Santa Monica, Calif.
represented Antelope Valley.

To contact the reporter on this story: Lisa Nagele in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Chief Justice Tani Cantil-Sakauye and Justices Joyce L. Kennard, Carol A. Corrigan, and Goodwin
Liu joined the majority opinion. Justice Marvin R. Baxter wrote a concurring opinion joined by Justice
Goodwin Liu. Justice Ming W. Chin also wrote a concurring opinion.

Callahan & Blaine of Santa Ana, Calif., represented the plaintiffs. Perkins Coie of Santa Monica, Calif.
represented Antelope Valley.

To contact the reporter on this story: Lisa Nagele in Washington at lnagele@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Reproduced with permission. Published 7-1-2014. Copyright 2022 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bloombergindustry.com

On June 30, 2014, the California Supreme Court issued a major decision that will impact companies’ ability to treat their workers as “independent contractors” rather than as employees for purposes of complying with work place laws and regulations.

This morning the California Supreme Court issued a major decision that will impact companies’ ability to treat their workers as “independent contractors” rather than as employees for purposes of complying with work place laws and regulations.

Wage and hour class action alleging drivers of SuperShuttle airport vans in California were misclassified as independent contractors or franchisees.

Leonard Carder represented San Francisco unions in three different interest arbitrations with the City. Each of these arbitrations ended in May 2014 with arbitral decisions and mediated settlements securing strong contracts that help workers both join in the City’s economic recovery and establish a variety of new job rights.

In a series of rulings culminating on March 21, 2014, PERB and the Superior Court of Sacramento County rejected repeated attempts by the University of California to prevent its hospital employees from striking.

Leonard Carder is proud to assist United Teachers Los Angeles in its effort to support children and families during the pandemic.  UTLA represents the more than 31,000 educators employed by the Los Angeles Unified School District.  On January 21, 2021, Leonard Carder submitted an amicus curiae or “friend of the court” brief on behalf of UTLA urging the Ninth Circuit Court of Appeals to maintain Los Angeles’ Eviction Moratorium Ordinance.  The ordinance aims to prevent families from being evicted from their homes for nonpayment of rent due to financial hardship related to COVID-19.  As shown in UTLA’s brief, children cannot regularly participate in school during the pandemic unless they have stable housing.  Los Angeles’ ordinance, by helping to keep children housed, reduces the number of children who will suffer the loss of education while physical schools must stay safely closed to prevent the further spread of the virus.  On February 16, 2021, the court granted UTLA’s motion for leave to file its brief as amicus curiae paving the way for UTLA’s arguments to be considered by the court.