Al Mohajerian

JOHNSON, v. THE RAYTHEON COMPANY, INC. Court of Appeals of California, Second District, Division Eight.

Filed March 8, 2019. (2019 DJDAR 2627)

A hirer of an independent contractor is not liable for the negligence of the independent contractor.  In the case of  Privette v. Superior Court (1993) 5 Cal.4th 689, stands for the general principal that “a hirer of an independent contractor is not liable for the negligence of the independent contractor.” There are two exceptions to the Privette rule and practitioners should know them.

(1) The Hooker exception, Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 202. Hooker provides for hirer liability only when facts are adduced to show that the hirer retains control and when retained control is negligently exercised in a manner that affirmatively contributes to the accident. Specifically, the Privette doctrine allows for liability when the hirer of the independent contractor retains control over safety conditions at the worksite, and negligently exercise that retained control in a manner which affirmatively contributes to the employee’s injuries. The second exception is the Kinsman exception.

(2) In Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, the Court put forth a second Privette exception and set forth the limited circumstances in which the hirer of an independent contractor can be liable to an employee of that contractor for hazardous conditions of its property, stating that “[A] landowner that hires an independent contractor may be liable to the contractor’s employee if the following conditions are present: the landowner knew, or should have known, of a latent or concealed preexisting hazardous condition on its property, the contractor did not know and could not have reasonably discovered this hazardous condition, and the landowner failed to warn the contractor about this condition.” Id. at 664).

Filed Under: Labor & Employment

MELENDEZ et al., , v. SAN FRANCISCO BASEBALL ASSOCIATES LLC,

April 25, 2019 (2019 DJDAR 3432)

The Supreme Court held that Section 301(a) does not preempt this lawsuit. The decision was unanimous:  George Melendez, (“Plaintiffs”) a security guard at the park, was the lead plaintiff in this putative class action against the Francisco Baseball Associates LLC (“Giants”). He contended that he and other security guards were employed intermittingly for specific job assignments (baseball games or other events) and were discharged at the end of a homestand, at the end of a baseball season, at the end of an inter-season event like a fan fest, college football game, a concert, a series of shows, or other events, and that under California Labor Code (“LC”), they were entitled to but did not receive immediate payment of their final wages upon each such discharge. Plaintiffs seek to recover penalties under LC, §203 for the Giants failure to pay them immediately after each such discharge.  The Giants seek to invoke Section 301(a) of the Labor Management Relations Act of 1947. (“Section 301(a),” claiming that the Collective Bargaining Agreement (“CBA”) controls. California’s LC, §201(a) states, “[I]f an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.” §201(a) Plaintiffs are suing the Giants for allegedly violating §201(a). They claim they are discharged after every Giants homestand, at the end of the baseball season, and after other events at the park, and they are entitled under LC, §201)a) to receive their unpaid wages immediately after each such discharge. The Giants deny that the security guards are discharged on those occasions. They contend that LC, §204, which generally requires semimonthly payment of employees’ wages, applies to the guards.

The issue before the Supreme Court is when is a discharge not a discharge under LC, §201?Plaintiffs contend that “discharge” means discharge and that the interpretation of their CBA does not come into play in this case. Defendants contend that this lawsuit requires interpretation of the CBA that the guards union has entered into with the Giants. This is significant because if the Giants win, the case would be referred to federal court under Section 301(a). That section provides:  “[S]units for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties,” [under the broad meaning] of 301(a).  The Giants contend that the security guards are not intermittent employees but are year-round employees who remain employed with the Giants until they resign or are terminated pursuant to the CBA. To support this contention, they cite provisions of the agreement entered into between the Giants and the union that represents the security guards, the Service Employees International Union, United Services Workers West of San Francisco. Under the CBA, the classification of employees is based on the number of hours worked in a year, itself suggesting that employment is considered to continue beyond the conclusion of each event. Continued classification as a regular employee requires at least 1,700 hours of work in a year. All employees shall be probationary employees for their first five hundred (500) hours of work with the Giants. Employees rise to senior and super senior status by working a minimum of 300 hours each year for the last five or 10 years, hardly possible if each event is deemed a separate employment, the Giants claim.

The merit of the Plaintiffs’ case is not at issue here, only whether the CBA trumps LC §201, when there is no dispute as to any terms in the CBA, e.g., whether its language preempts LC §201.The trial court denied the Giant’s motion to compel arbitration. The Court of Appeals reversed and ruled that Plaintiffs had to submit to arbitration. The Supreme Court reversed the Court of Appeals and held that the meaning of “discharge” turned on its meaning under LC, §201, e.g., state law, and therefore not preempted by Section 301(a).

Filed Under: Labor & Employment

California law requires two (2) hours of sexual harassment prevention training for all supervisors and one (1) hour of training for non-supervisory employees to be completed before January 1, 2020. Training is required within six (6) months of hire or promotion every two (2) years. Any supervisor or non-supervisor who took the training prior to 2019, will have to retake the training before January 1, 2020 to comply with the SB 1343 requirements. Contact our office to schedule training sessions for your staff. (310) 556-3800 or email us at [email protected].

Filed Under: Labor & Employment

Fresno Superior Court v. PERB (CA5 F075363 12/14/18)
PERB Authority/Court Personnel Rules.
Upholding broad restrictions on employee clothing, ban on solicitation during working hours and ban on displaying images in areas visible to the public, but finding regulations prohibiting distribution of literature in working areas were ambiguous.
http://www.courts.ca.gov/opinions/documents/F075363.PDF

Gerard v. Orange Coast Mem. Med. Ctr. (SC S241655A 12/10/18)
Meal Periods/Health Care Employees.
IWC wage order permitting health care employees to waive second meal period for shifts greater than 12 hours does not violate the Labor Code.
http://www.courts.ca.gov/opinions/documents/S241655A.PDF

Moreno v. Visser Ranch, Inc. (CA5 F075822 12/20/18)
Respondeat Superior/Use of Company Vehicle.
Driver’s use of company truck for personal travel after work, where he was on call 24 hours a day and may have been required to use the truck at all times, can give rise to respondeat superior liability. http://www.courts.ca.gov/opinions/documents/F075822.PDF

MOHAJERIAN LAWYERS REPRESENT EMPLOYERS THROUGHOUT CALIFORNIA

Filed Under: Labor & Employment

The new law affecting employers’ policies and practices is Senate Bill 1343, which changes the requirements around sexual harassment prevention training as of January 1, 2019. All employers with five or more employees are now required to provide 2 hours of sexual harassment prevention training to supervisors and 1 hour to administrative employees within 6 months of hire or promotion, and every 2 years thereafter. In addition, all employees must complete their training before January 1, 2020. The Department of Fair Employment and Housing determined that the training must be done during the 2019 calendar year. Even supervisors trained in 2018 must be retained. Temporary and seasonal employees must be trained within 30 days of hire or within the first 100 hours of their work, whichever is earlier. Temporary service employers will be responsible for training their employees who are placed with client-employers.

Filed Under: Labor & Employment