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by Jennifer Brown Shaw and Brooke Kozak | The Daily Recorder | August 30, 2017

This article is Part 2 of a two-part series providing an overview of recent California Supreme Court decisions in employment law.

We continue below with brief summaries of the California Supreme Court’s key employment law opinions during the past year. We also preview some important upcoming cases that the Court has accepted for review.

Park v. Board of Trustees of the California State University (May 4, 2017)

Park sued the Board of Trustees for allegedly denying him tenure because of his ethnicity. The decision to deny tenure was made after a public hearing, and Park used statements made at the hearing to support his claim.

To combat lawsuits designed to chill the exercise of free speech (i.e., Strategic Lawsuits Against Public Participation, or SLAPPs), the Legislature authorized a motion to strike claims based on a defendant’s engagement in protected speech “in connection with a public issue.” (See Code Civ. Proc. section 425.16, subd. (a).) The Board of Trustees brought an anti-SLAPP motion, arguing that statements made during the tenure hearing were protected.

The Court determined that the University’s hiring decision was not a “matter of public interest” within the scope of protected activity defined by the anti-SLAPP statute. Therefore, the Board’s anti-SLAPP motion failed.

Mendoza v. Nordstrom, Inc. (May 8, 2017)

The state’s “day of rest” statutes (Labor Code sections 550 – 558.1) prohibit an employer from “caus[ing] his employees to work more than six days in seven” (section 552), but do not apply “when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof” (section 556).

There were three issues before the Court. First, is the day of rest required by sections 551 and 552 calculated by the workweek, or does it apply on a rolling basis to any consecutive seven-day period? The Court held, “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.”

Second, does the exemption for workers employed six hours or less per day apply so long as employee works six hours or less on at least one day of the applicable week, or does it apply only when an employee works no more than six hours on each and every day of the applicable week? The Court held that the exemption applies only to those employees “who never exceed six hours of work on any day of the workweek.”

Third, what does it mean for an employer to “cause” an employee to go without a day of rest? The Court held, “An employer causes an employee to go without a day of rest when it induces the employee to forego rest to which he or she is entitled.” An employer is not prohibited from “permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.”

Williams v. Superior Court (July 13, 2017)

Under the Private Attorneys General Act (PAGA), Williams sued his employer (Marshalls of CA, LLC), to collect penalties for alleged wage and hour violations. Williams sought to compel Marshalls to provide contact information for other Marshalls employees. Marshalls resisted, contending that the request was overbroad, unduly burdensome, and an invasion of the employees privacy.

According to the Court, the right to discovery in California is broad “so that parties may ascertain the strength of their case and at trial the truth may be determined.” In non-PAGA class actions, “the contact information of those a plaintiff purports to represent is routinely discoverable.” The Court held that nothing about a PAGA suit “affords a basis for restricting discovery more narrowly.” Obstacles that “impede the effective prosecution of representative PAGA actions undermine” the state’s public policy of affording employees workplaces free of Labor Code violations. Therefore, courts cannot impose a “good cause” requirement or require plaintiffs to satisfy a heightened standard of proof before permitting discovery.

The Court also found that the other employees’ privacy rights were outweighed by the need for discovery. The Court explained the proper analysis balances the employee’s expectation of privacy, the seriousness of the intrusion, the nature of the information, and the importance of disclosure. The Court noted courts can ameliorate third party employees’ privacy concerns, such as by issuing a notice affording an opportunity to opt-out from disclosure.

The decision is important for employers, because it provides significant leverage to plaintiffs with minor individual claims, as it eases their ability to burden employers with discovery and expand claims.

Cases Pending Review

The Court has granted review of three cases that may impact employers. In Dynamex Operations West, Inc. v. Superior Court, the Court will address which of two tests should be used to determine whether a worker is properly classified as an independent contractor or an employee. Troester v. Starbucks Corporation concerns whether the federal “de minimis” defense applies to claims for unpaid wages under California law. The issue in Alvarado v. Dart Container Corp. of California is the proper method to calculate overtime when an employee receives both an hourly wage and a flat sum bonus.