On January 31, 2020, a U.S. District Court preliminarily enjoined the enforcement of Assembly Bill 51 (AB 51) against arbitration agreements governed by the Federal Arbitration Act (FAA).  As enacted, AB 51 would prohibit employers from conditioning employment (including continued employment) or employment-related benefits on an individual signing a mandatory arbitration agreement for disputes arising

Whether the Establishment and Free Exercise Clauses prevent civil courts from adjudicating employment discrimination claims brought by employees against their religious employer, where the employee carried out important religious functions, is the question presented in two consolidated cases before the U.S. Supreme Court: Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267, and St. James

Last year, the California Supreme Court held the federal “de minimis” doctrine does not apply to California state law claims for unpaid wages for off-the-clock work allegedly performed on a regularly occurring basis in store closing and related activities. Troester v. Starbucks Corp., 5 Cal. 5th 829. However, the California Supreme Court also noted that

On April 4, 2016, the California Supreme Court took a stand by issuing a long-awaited opinion in Kirby v. CVS Pharmacy, Inc.  The decision clarifies certain ambiguities in an employer’s obligation to provide suitable seating to employees.  At issue was a provision in California’s Wage Orders that requires employers to provide all employees “with suitable seats when the nature of the work reasonably permits the use of seats.”  The Court held that “nature of the work” refers to the task performed at a given location where the employee is claiming a right to a suitable seat, instead of a holistic approach.  The Court also adopted a “totality of the circumstances” test to assess whether a work location “reasonably permits” suitable seating.

Background

Kirby v. CVS Pharmacy, Inc. arises from a putative class actions filed by a cashier and bank teller. The plaintiffs alleged their employer violated the suitable seating provision in various California Wage Orders by failing to provide seats. The plaintiffs appealed unfavorable district court decisions to the Ninth Circuit Court of Appeals.  The Ninth Circuit requested clarification from the California Supreme Court on the proper interpretation of three areas of the suitable seating provision, including the meaning of “nature of work” and “reasonably permits,” and who bears the burden to show suitable seating is available.
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A depressed employee who was fired for threatening to kill his co-workers was not a qualified individual entitled to protection under the Americans with Disabilities Act, as the employee could not perform essential job functions, with or without an accommodation, a federal appeals court in San Francisco has ruled, affirming judgment in favor of the employer. Mayo v. PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015). The Ninth Circuit has jurisdiction over Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington.
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A recent decision by the Ninth Circuit reversed a district court’s denial of an employer’s motion to compel arbitration under the Federal Arbitration Act (“FAA”). This decision is notable because the applicable dispute resolution policy, outlining the terms of arbitration, was contained within the company’s policy manual and detached from the employee’s signed acknowledgment of receipt of the manual. The Ninth Circuit reversed the district court’s decision on the grounds the language of the employer’s dispute resolution policy, separately outlined within the company’s policy manual, expressly indicated a waiver of the right to a judicial forum for civil rights claims such that the employee “knowingly” agreed to arbitrate his Title VII claim. Michael Ashbey v. Archstone Property Management, Inc., No. 12-55912 (9th Cir., May 12, 2015).
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In a recent Ninth Circuit decision, the court held that “a piece of evidence [may not be disregarded] at the summary judgment stage solely based on its self-serving nature.” As a result, declarations created after summary judgment motions are filed may be sufficient to create genuine issues of material fact and, therefore, defeat summary judgment. This decision is particularly concerning because it allows a party to thwart summary judgment with little to no credible or corroborated evidence.
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When settling employment disputes, employers and employees often seek to go their separate ways and avoid crossing paths in the future.  Settlement agreements often include a “No Re-Hire” clause in which employees agree they will not be eligible for re-hire; however, what happens when a former employee challenges the “no re-hire” clause as an unlawful restraint on trade?  And what happens when the employee seeks to invalidate the entire settlement agreement on the basis that the “no re-hire” clause was a material term of settlement?
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The Ninth Circuit Court of Appeals recently reversed summary judgment for an employer, finding that a former employee’s self-serving declaration and deposition testimony regarding alleged disability discrimination were sufficient to create a triable issue of fact. The Ninth Circuit also held the employer’s denial of the accommodation the employee requested “chilled” the exercise of the employee’s right to request an accommodation. The plaintiff suffered from ulcerative colitis, an inflammatory bowel disease that causes long-lasting inflammation and ulcers in the digestive tract. After being terminated, the plaintiff brought suit against his employer pursuant to the California Fair Employment and Housing Act, claiming that it: (1) discriminated against him because of his disability; (2) declined to accommodate his disability; and (3) did not engage in an interactive process to determine possible accommodation for his disability. The plaintiff also alleged that his employer terminated his employment in violation of California public policy. The employer successfully moved for summary judgment before the District Court, and the plaintiff appealed.
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A divided Ninth Circuit court ruled this week that California’s protections against contracts restraining employment were not explicitly limited to non-compete agreements.  Rather, the law can apply to any type of employment agreement, including settlement agreements.

In Donald Golden v. California Emergency Physicians Medical Group et al., case number 12-16514, the employer and employee entered into a proposed settlement agreement.  The no-employment provision in the settlement agreement states that the employee will not continue to be employed at any of the employer’s current facilities, or at any other facility with which the employer may contract in the future.  The employee appealed and sought to “un-do” the settlement agreement based on this clause.
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