18th Annual Workplace Class Action Report - 2022 Edition

368 Annual Workplace Class Action Litigation Report: 2022 Edition screenings, Plaintiffs’ ability to fulfill their duties would be significantly impacted. For these reasons, the Court of Appeals reversed and remanded the trial court’s ruling on the basis that the screenings were integral and indispensable and therefore were compensable. (ii) California Apodaca, et al. v. Randstad, US, LLC, Case No. FCS-053587 (Cal. Super. Ct. May 14, 2021). Plaintiff filed a class action alleging that Defendant failed to pay all wages due in violation of the California Private Attorney General Act (“PAGA”). The Court previously had sustained Defendant’s demurrer and abated the action based on a related pending action. Plaintiff thereafter filed an amended complaint adding Defendant Coca-Cola. Thereafter, Coca-Cola subsequently demurred and sought to strike certain claims for failure to provide mandatory pre-filing notice. Coca-Cola argued that Plaintiff was required to provide adequate notice that it was going to bring a PAGA claim against it and that the claims alleged were not previously in the notice that Plaintiff provided. The Court rejected Coca-Cola’s motion to strike the PAGA claim on the grounds that the notice Plaintiff provided clarified that the PAGA claim was submitted by Plaintiff against his former employers, Randstad and Coca-Cola, and that he was bringing his claim on behalf of himself and all other aggrieved employees in California. The Court, however, granted the motion as to Plaintiffs’ § 204 claim, as the factual claims in the complaint were not previously provided in the notice. For these reasons, the Court granted in part and denied in part Coca-Cola’s motion to strike. Becerra, et al. v. McClatchy Co., 69 Cal. App. 5th 913 (Cal. App. 5th Dist. 2021). Plaintiffs, a group of newspaper home delivery carriers for The Fresno Bee , filed a class action alleging that Defendant failed to provide reimbursement for mileage expenses in violation of § 2802 of the California Labor Code (“CLC”) and the Unfair Competition Law (“UCL). The matter proceeded to a bifurcated bench trial on the issue of whether the owner of The Fresno Bee and its holding company, respectively, The McClatchy Co. and McClatchy Newspapers, Inc. (“Defendants”), violated the UCL by failing to pay the carriers’ mileage expenses as required by § 2802 of the CLC. The parties contested whether Plaintiffs were properly treated as independent contractors or if they should have been classified as employees. The trial court determined the carriers were independent contractors and, as a result, entered judgment in favor of Defendants. On appeal, the California Court of Appeal reversed and remanded the trial court’s ruling. Plaintiffs alleged that the trial court: (i) misallocated the burden of proof; (ii) erred in relying on a regulation promulgated by the California Employment Development Department (“EDD”), which Plaintiffs contended was irrelevant; (iii) erred in its application of the relevant test to determine employee status, as set out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations 48 Cal.3d 341 (1989); (iv) erred under Borello in concluding that Plaintiffs were employees; (v) erred in relying on equitable considerations to determine Defendant’s liability; and (vi) improperly relied on testimony from unrepresentative class members. Id . at 922. In supplemental briefing, Plaintiffs argued that the test for employment set out in Dynamex Operations West, Inc. v. Superior Court , 4 Cal.5th 903 (2018), applied and that Plaintiffs were employees under that test. Id . The Court of Appeal ruled that the Dynamex ABC test was limited to claims governed by wage orders that utilized the “suffer or permit to work” standard, and here, Plaintiffs sought to prevail on a UCL claim, which was based on the newspapers’ alleged violation of § 2802, and thus was a non- wage order claim. Id . Therefore, the Court of Appeal ruled that because Dynamex did not provide a basis for applying the ABC test to Plaintiffs’ claims, independent contractor status must be conducted by application of the Borello test. Accordingly, the Court of Appeal reasoned that because the trial court failed to properly analyze the factors required by Borello , it must reverse and remand action for the trial court to properly analyze whether Plaintiffs were employees or independent contractors. Contreras, et al. v. Superior Court Of Los Angeles County, 2021 Cal. App. LEXIS 169 (Cal. App. 2d Dist. March 1, 2021). Plaintiffs, a group of drivers for a transportation service, brought a lawsuit under the Private Attorneys General Act of 2004 (“PAGA” ) alleging that Defendant misclassified them and others as independent contractors, thereby violating multiple provisions of the California Labor Code (“CLC”). Defendant moved to compel arbitration based on agreements that Plaintiffs had signed at the beginning of their employment. The trial court granted the motion, ordering into arbitration the issue of arbitrability of Plaintiffs’ lawsuit as to whether they were “aggrieved employees” entitled to raise PAGA claims. Defendant petitioned the California Court of Appeal for a peremptory writ of mandate directing the trial court to vacate its order granting the motion to compel arbitration. Plaintiffs challenged the trial court’s order on the grounds that the delegation of the question of