18th Annual Workplace Class Action Report - 2022 Edition

598 Annual Workplace Class Action Litigation Report: 2022 Edition test previously set forth in Dynamex Operations West, Inc. v. Superior Court of Los Angeles , 4 Cal. 5th 903 (2018), for ascertaining whether workers are classified as employees or independent contractors. Plaintiffs argued that § 2778’s use of different worker-classification tests for different occupations violated the free speech, free press, and equal protection clauses of the U.S. Constitution because freelance writers, photographers, and others received a narrower exemption than was offered to certain other professionals. At issue was AB 5’s “professional service” exemptions for freelance workers, including freelance writers and photographers. As originally enacted, AB 5 limited this exemption to freelancers who submitted fewer than 35 pieces of work to a single entity in a given year. If a freelancer stayed within that limit, the worker classification tests established in S.G. Borello & Sons, Inc. v. Department of Industrial Relations , 48 Cal. 3d 341 (1989), governed and the worker’s status turned primarily on the hiring entity’s right to control the worker. If the freelance exceeded the limit, Dynamex instead applied. AB 5 also provided that the exemption did not apply to photographers, photojournalists, and videographers working on “motion pictures,” i.e. , projects produced for “theatrical, television, internet streaming for any device, commercial productions, broadcast news, music videos, and live shows.” Id . at 959. Dynamex governed their arrangements no matter the situation. Plaintiffs sued to enjoin these limitations and sought to expand the freelance exemptions. In Plaintiffs’ view, the submission limit and exclusion of “motion picture” workers offended the free speech, free press, and equal protection clauses because they did not apply to other professionals, such as marketers and artists, who enjoyed broader, or at least differently contoured, exemptions from the ABC test established by Dynamex. Plaintiffs moved for a preliminary injunction and for a temporary restraining order. The District Court denied the restraining order request and, after concluding that Plaintiffs were unlikely to prevail, declined to issue a preliminary injunction. On Plaintiffs’ appeal, the Ninth Circuit affirmed the District Court’s dismissal order. The Ninth Circuit rejected Plaintiff’s First Amendment argument, finding that AB 5 regulated economic conduct, not speech, and that the law evinced no content preference. The Ninth Circuit also held that AB 5 survived Plaintiffs’ equal protection challenge because the regulated occupations were not similarly-situated and, even if they were, there was a rational basis for the legislature’s occupational classifications. Specifically, the Ninth Circuit found that the legislature’s occupational distinctions were rationally related to a legitimate state purpose. For these reasons, the Ninth Circuit affirmed the District Court’s dismissal order. Bear Creek Bible Church & Braidwood Management, et al. v. EEOC, 2021 U.S. Dist. LEXIS 210139 (N.D. Tex. Oct. 31, 2021). In this declaratory judgment class action, a Christian church and a Christian-owned business sought to protect their ability to require their employees to live by the teachings of the Bible on matters of sexuality and gender roles. Id . at *2. Plaintiff asserted that Defendant’s enforcement of the U.S. Supreme Court’s ruling in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020), which banned job discrimination on the “basis of sex,” violated its sincerely held religious beliefs. Plaintiff filed a motion for summary judgment, and the Court granted in part the motion. Plaintiffs contended that they did not “hire or employ individuals who are known to engage in sexually immoral behavior or gender non-conforming conduct of any sort, including homosexuality, cross-dressing, and transgenderism.” Id . at *8. The Court found that the Religious Freedom and Restoration Act (“RFRA”) and the First Amendment both require the government to provide a religious exemption to anti-discrimination law. The Court also opined that Title VII does not provide religious organization employers a blanket exemption to Title VII’s prohibitions; rather, it exempts religious organization employers who hire employees to perform work connected with the carrying on of its activities or mission. Id. at *16. Therefore, the Court concluded that the plain text of the exemption, therefore, was not limited to religious discrimination claims; instead, it also exempted religious employers from other forms of discrimination under Title VII, so long as the employment decision was rooted in religious belief. Plaintiffs also claimed to have "sincere and deeply held religious beliefs that marriage is limited to a man and a woman, that sex is to be reserved for marriage, and that men and women are to dress and behave in accordance with distinct and God- ordained, biological sexual identity." Id . at *65. The Court held that Defendant’s interpretation of Title VII substantially burdened Braidwood’s religious exercise in conducting its business, as religious employers were required to choose between two untenable alternatives, including either: (i) violate Title VII and obey their convictions; or (ii) obey Title VII and violate their convictions. Id . at *66. The Court noted that Plaintiffs would also suffer for non-compliance from EEOC enforcement, which would subject Plaintiffs to liability for back pay, compensatory damages, and punitive damages. For these reasons, the Court granted Plaintiffs’ motion for summary judgment.