18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 379 contained in the CBA, Defendant filed a motion to compel arbitration of Plaintiff’s claims. The trial court denied Defendant’s motion on the basis that the CBA did not contain a “clear and unmistakable waiver” of Plaintiff’s right to have his substantive claims decided by a trial court. Id. at *7-8. Defendant appealed the trial court’s decision and advanced two primary contentions on appeal, including: (i) that the trial court incorrectly decided the issue of arbitrability, which should be determined by an arbitrator; and (ii) that the trial court erred in holding that Plaintiff’s claims were not subject to binding arbitration under the language of the CBA. The California Court of Appeal affirmed the trial court’s order. With respect to determining the issue of arbitrability, the Court of Appeals outlined jurisdictional case law that maintained that this question must be decided by a trial court unless an arbitration provision explicitly provided otherwise. The Court of Appeal found no such language, as it concluded that the CBA’s primary grievance process did not mention arbitration and Article 11 acted as a permissive arbitration clause given its language that “Defendant may submit unresolved grievances to arbitration[.]” Id. at *16. In terms of the arbitrability of Plaintiff’s claims, the Court of Appeal reasoned that the CBA did not contain the requisite “clear and unmistakable” waiver of Plaintiff’s right to pursue his statutory claims in a trial court. To that end, the Court of Appeal concluded that the CBA governed only grievances concerning the agreement itself, and Plaintiff’s claims did not relate to the CBA. For these reasons, the Court of Appeal affirmed the trial court’s order denying Defendant’s motion to compel arbitration. Young, et al. v. RemX, Inc., Case No. CGC-14-538406 (Cal. Super. Ct. Dec. 6, 2021). Plaintiff, a temporary employee, filed a Private Attorney General Act (“PAGA”) claim asserting improper waiting time penalties against Defendant, a staffing company. Plaintiff sued in a representative capacity for other temporary workers. Defendant filed a motion for summary judgment, and the Court granted the motion. Plaintiff was hired by Defendant and placed on a temporary work assignment with Bank of the West (“BOW”). Plaintiff worked for BOW for a period of time, after which her assignment was terminated by BOW. Thereafter, Plaintiff no longer performed work for Defendant. The issue for the Court to address was whether Plaintiff was “discharged” from her employment under § § 201-203 of the California Labor Code to determine if the wages were due and payable immediately. The Court found that there was not triable issue of material fact as to whether Plaintiff was discharged from her employment with Defendant. Id . at 4. The Court determined that the undisputed facts showed: (i) Plaintiff was active in Defendant’s database; (ii) Defendant never sent Plaintiff a termination notice; (iii) all paperwork between the parties indicated that Plaintiff’s assignment with BOW was ending, and did not address her employment with Defendant; (iv) no notification of the termination occurred per company policy; (v) Plaintiff admitted that Defendant did not tell her she was ineligible for future temporary assignments; and (vi) Plaintiff failed to clarify if Defendant or BOW terminated her. The Court reasoned that “completion of an assignment by an employee of a temporary services employer is not a discharge.” Id . at 7. Accordingly, the Court ruled that Plaintiff failed to establish that she was discharged, and thus lacked standing to bring the PAGA claim for waiting time penalties. For these reasons, the Court granted Defendant’s motion for summary judgment. (iii) District Of Columbia Colbert, et al. v. Prince Security Services Of DC, LLC, 2021 D.C. Super. LEXIS 2 (D.C. Super. Ct. Jan. 19, 2021). Plaintiff, a security guard for a homeless shelter, filed a collective action alleging that Defendants violated provisions of the District of Columbia Living Wage Act, the District of Columbia Wage Payment and Wage Collection Law ("DCWPCL"), and the District of Columbia Minimum Wage Revision Act. Plaintiff moved for conditional certification of a collective action pursuant to § 32-1308(a)(1)(C) of the D.C. Code. The Court granted the motion. The DCWPCL provides that "actions may be maintained by one or more employees . . . on behalf of all employees similarly-situated . . . consistent with the collective action procedures of the Fair Labor Standards Act, 29 U.S.C. § 216(b)." Id . at *2. Plaintiff contended that she worked as a security guard for Defendant, and was paid hourly rate below the living wage required by law. Plaintiff further asserted that she was aware of two other security guards who worked for Defendant who were also paid at an hourly rate below the living wage required by law. In addition to offering three affidavits in support of her motion, Plaintiff also submitted pay records that demonstrated that over 50 employees were being paid below the living wage in 2015, and over 70 employees were being paid below the living wage in 2016. Defendant argued that that the affidavits provided by Plaintiff were too vague in that they failed to identify whether the various locations they worked at were included under the contract between Defendants. Id . at *4. The Court rejected this argument. It opined that Plaintiff met her burden to provide some evidence, beyond pure speculation, that the locations that she and the other affiants