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  • Dean Royer

Dismissal of sexual harassment claim reversed based on employer’s response to report of customer harassment.

November 18, 2021, Ninth Circuit Court of Appeals, Vincent Fried v. Wynn Las Vegas, LLC: The trial court dismissed Fried’s hostile work environment claim under federal law (summary judgment). On appeal, the Ninth Circuit agreed with the trial court that comments about looking for a job outside of a female-oriented field and coworker banter regarding wearing wigs were not sufficiently severe or pervasive. But with respect to Fried’s supervisor directing Fried to return to a customer and complete a pedicure service after Fried reported that the customer had sexually propositioned him, the appellate court found that an employer’s response to a third party’s unwelcome sexual advances toward the employee can create a hostile work environment. It concluded that summary judgment was improper based on this incident because a reasonable jury could decide the supervisor condoned the customer’s sexual harassment and expected Fried to tolerate the harassment as part of his job. In addition, the Ninth Circuit found that coworkers’ commentary that Fried should take the customer’s sexual proposition as a compliment must be considered with the supervisor’s response to the harassment report to determine whether a hostile work environment was created.

  • Dean Royer

A defendant that successfully compels arbitration of a FEHA claim may not recover its attorney’s fees unless the plaintiff’s opposition was frivolous, unreasonable, or groundless.

October 18, 2021, Second District Court of Appeal, Michael Patterson v. Superior Court: The issue before the appellate court was whether an employer’s arbitration agreement can authorize the recovery of attorney’s fees for a successful motion to compel arbitration of a FEHA case even if the employee’s opposition to arbitration was not frivolous, unreasonable, or groundless. The Second District concluded no because a fee-shifting clause directed to a motion to compel arbitration risks chilling an employee’s access to court in a FEHA case.


Regular rate of pay calculation for commission worker did not apply because employer failed to provide records regarding the commission payments and actual hours worked.

October 14, 2021, Second District Court of Appeal, Byron Jerry Morales v. Factor Surfaces LLC: Morales sued his former employer and its managing agent for several wage and hour violations and wrongful termination. The trial court found in Morales’s favor and awarded $42,792 in unpaid overtime wages. On appeal, the Second District affirmed the amount of the award after concluding that the calculation of Morales’s regular rate of pay was correct. The trial court divided Morales’s weekly salary by the number of overtime hours worked. Although Morales received commissions, Factor Surfaces failed to provide records showing the portion of each weekly paycheck attributable to commissions and the actual number of hours worked by Morales. As a result the calculation for commission workers (divide total commission payments for the week by the actual number of hours worked) was not possible.

The Borello common law test applies to failure to reimburse expenses claims.

September 30, 2021, Fifth District Court of Appeal, Veronica Becerra v. The McClatchy Company: Becerra filed a class action on behalf of newspaper home delivery carriers alleging The McClatchy Company failed to pay the carriers’ mileage expenses as required by Labor Code section 2802. The trial court concluded that the carriers were properly classified as independent contractors. The court of appeal determined that whether the carriers were independent contractors for purposes of Labor Code section 2802 is governed by the Borello common law test (rather than the Dynamex ABC test) and reversed so that the trial court could apply the Borello test.


The Dynamex ABC test applies to minimum wage and overtime claims by app-based drivers that pre-date Proposition 22.

September 20, 2021, Ninth Circuit Court of Appeals, Raef Lawson v. Grubhub, Inc.: Lawson sued Grubhub arguing that he had been misclassified as an independent contractor and, as a result, Grubhub failed to pay minimum wages and overtime and to reimburse expenses. The trial court concluded that Lawson was properly classified as an independent contractor under the Borello common law test. The Ninth Circuit determined that the Dynamex ABC test applied to the minimum wage and overtime claims and that Proposition 22 (which makes app-based drivers independent contractors) did not preclude application of the ABC test because the proposition does not apply retroactively.


A DFEH complaint need not include the full correct legal name of the employer.

September 17, 2021, Second District Court of Appeal, Gloria Guzman v. NBA Automotive, Inc.: Guzman filed a timely complaint with the Department of Fair Employment and Housing after her employer, NBA Automotive, Inc. dba Hooman Chevrolet of Culver City terminated her employment. The DFEH issued Guzman a right-to-sue letter, and Guzman filed a civil case that went to trial at which the jury found in favor of Guzman. NBA Automotive appealed contending that Guzman failed to exhaust her administrative remedies because her DFEH complaint named Hooman Enterprises, Inc. dba Hooman Chevrolet as the employer. The court of appeal affirmed on grounds the DFEH complaint sufficiently identified the employer because it included a fictitious business name that was virtually identical to the legal name (Hooman Chevrolet vs. Hooman Chevrolet of Culver City) and listed the address of Hooman Chevrolet in Culver City and named the owner.


Reversal of summary judgment based on erroneous exclusion of ageist comment.

September 10, 2021, Second District Court of Appeal, Linda Jorgenson v. Loyola Marymount University: Jorgenson sue Loyola Marymount University for retaliation and age and gender discrimination. The trial court dismissed the case (summary judgment) after excluding evidence that a University employee rejected a job candidate because she “wanted someone younger.” The court of appeal reversed on grounds the ageist statement was erroneously excluded based on a prior decision that age-based remarks not made directly in the context of an employment decision or uttered by a nondecision maker may be relevant, circumstantial evidence of discrimination.