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  • Dean Royer

Employee versus independent contractor standard applies retroactively.

January 14, 2021, Supreme Court of California, Vazquez v. Jan-Pro Franchising International, Inc.: In 2018, the California Supreme Court adopted a new standard for determining employee versus independent contractor status for claims based on California’s wage orders (“ABC” test) in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903. At the request of the Ninth Circuit Court of Appeal, the California Supreme Court decided that the ABC test applies retroactively for all cases not yet final as of the date of the 2018 Dynamex decision.

  • Dean Royer

Sexual harassment claim may be supported by incidents from different points in time and conduct directed at third parties.

December 31, 2020, Ninth Circuit Court of Appeal, Jennifer Christian v. Umpqua Bank: The trial court dismissed Christian’s sexual harassment case (summary judgment) brought under the federal Title VII and Washington state law after determining no reasonable juror could conclude that the harassment by a customer directed at Christian was severe or pervasive enough to create a hostile work environment. The Ninth Circuit concluded to the contrary after finding that the trial court should have considered evidence of the customer’s behavior during two different periods of time (not just one); incidents in which Christian did not have direct, personal interactions with the customer; and interactions between the customer and third persons.


Failure to engage in an interactive process claim requires reasonable accommodation that would have been available.

December 29, 2020, Second District Court of Appeal, Anahit Shirvanyan v. Los Angeles Community College District: A jury found in favor of Shirvanyan for claims of failure to provide a reasonable accommodation and engage in an interactive process for two injuries. On appeal, the Second District decided that in order to prevail on an interactive process claim the employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred. Applying this rule to the case, the appellate court determined that there was sufficient evidence to support a finding that a reasonable accommodation was available for only one of the two injuries.

Notice of representative action only requires a description of the general basis for the claim.

December 21, 2020, Third District Court of Appeal, Miguel Angel Rojas-Cifuentes v. Superior Court: Rojas-Cifuentes brought a representative action against his former employer, American Modular Systems, Inc., under the Labor Code Private Attorneys General Act of 2004 (PAGA) seeking to recover civil penalties for labor violations. The trial court dismissed the PAGA claim (summary judgment) on grounds Rojas-Cifuentes did not provide sufficient notice of the facts and theories of the claim to the Labor Workforce and Development Agency (LWDA) prior to filing suit. The court of appeal reversed, finding that Rojas-Cifuentes made sufficient allegations that notified American Modular and the LWDA of the general basis for the claim.

  • Dean Royer

FMLA willful interference claim requires proof of employer’s knowledge that its conduct is against the law.

November 23, 2020, Ninth Circuit Court of Appeals, Andrea Olson v. USA: Ms. Wilson sued her federal agency employer alleging a violation of the Family and Medical Leave Act (FMLA) for a willful failure to provide her notice of FMLA rights. The trial court decided that the agency did not willfully interfere with Ms. Wilson’s rights. On appeal, the Ninth Circuit determined that while employers have a duty to inform their employees of FMLA entitlements, the failure to provide notice of them does not result in an interference claim. Instead, the employee must prove that the employer’s conduct made her less likely to exercise her FMLA rights because she could expect to be fired or otherwise disciplined for doing so. The appellate court also concluded that proof of willful interference requires evidence of the employer’s knowledge of, or reckless disregard for, its conduct being prohibited by law. The Ninth Circuit concluded that the trial court’s decision was not clearly in error.


Commission only pay does not satisfy California’s overtime pay exemption.

November 9, 2020, Fourth District Court of Appeal, Joseph Semprini v. Wedbush Securities, Inc.: An exception to California’s overtime law is when the employee is employed in an administrative capacity, performs certain duties, and is paid a monthly salary equivalent to at least twice the state minimum wage for full-time employment. The Fourth District addressed the issue of whether a compensation plan based solely on commissions qualifies as salary for purposes of this exception. The appellate court concluded that it does not because a federal regulation concerning overtime pay allows only up to ten percent of the salary to be satisfied by commissions and defines salary as a predetermined amount.