18th Annual Workplace Class Action Report - 2022 Edition

Annual Workplace Class Action Litigation Report: 2022 Edition 599 Editor ’ s Note : The ruling in the Bear Creek Bible Church case was one of the most controversial employment- related decisions of the year. Brigida, et al. v. Buttigieg, 2021 U.S. Dist. LEXIS 90201 (D.D.C. May 12, 2021). Plaintiffs, a group of job applicants for air traffic controller positions, filed a class action alleging employment discrimination claims against Defendant, the Federal Aviation Administration (“FAA”), under Title VII of the Civil Rights Act. Defendant filed a motion to dismiss, and the Court denied the motion. The FAA hired air traffic controllers from multiple sources, and also established the Air Traffic-Collegiate Training Initiative (“CTI”) program for which it entered into "partnership agreements with colleges, universities, and other schools to administer" the program. Id . at *4. The CIT program included approximately 200 hours of classroom instruction. Plaintiffs were CIT graduates. Plaintiffs alleged that in 2013, after finding a disparity in the percentage of African-American air traffic controllers, the FAA moved from a merit-based hiring system to one which had the intent and purpose of benefitting African-American air traffic controller applicants. The Court noted that reading the complaint as a whole and crediting all inferences in favor of Plaintiffs, it found that Plaintiffs plausibly alleged they were "applicants for employment." Id . at *7. Plaintiffs had graduated from CTI schools and passed the required testing to become air traffic controllers. Id . at *15. Plaintiffs had been tracked by the FAA and were part of the FAA’s pre-approved inventory of applicants. Plaintiffs, however, were not able to complete the application process because the FAA declined to open a vacancy and then purged its pre-approved list of candidates for allegedly discriminatory reasons. Id . at *16. The Court concluded that Plaintiffs’ allegations described the FAA’s decision to abolish, for allegedly discriminatory purposes, a purportedly race-neutral application process that the FAA designed and implemented and in which the Plaintiffs had invested substantial time, energy, and resources at the encouragement of the FAA itself. Id . at *16-17. The Court found that Plaintiffs sufficiently alleged discrimination in the FAA’s hiring process to survive a motion to dismiss. For these reasons, the Court therefore denied the FAA’s motion to dismiss. California Trucking Association, et al. v. Bonta, 2021 U.S. App. LEXIS 12629 (9th Cir. April 28, 2021). Plaintiffs, a trade association representing motor carriers that hired independent contractors who owned their own trucks to transport property throughout California and its members, brought suit to enjoin Defendant, the State of California, from enforcing AB5 against motor carriers operating in California. In 2019 the California legislature enacted AB-5, § 2775.4 of the California Labor Code, which codified the “ABC test” as outlined in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), and expanded its applicability. Id at *4. AB-5 classified certain workers as employees, stating that a person shall be considered an employee rather than an independent contractor unless the hiring entity demonstrated that various conditions were satisfied, including: (A) the person was free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the person performed work that was outside the usual course of the hiring entity’s business; and (C) the person was customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Plaintiffs viewed the new rule statutorily classifying workers as employees unless the hiring entity demonstrated that the workers performed work that was outside the usual course of the hiring entity’s business, as effectively precluding the business model utilized by Plaintiffs . The District Court held that Plaintiffs had standing to bring suit and were likely to succeed on the merits of their claim, and therefore it enjoined Defendant from enforcing AB-5 against any motor carrier doing business in California. The District Court issued a preliminary injunction on the basis that such enforcement was preempted by Federal Aviation Administration Authorization Act of 1994 (“FAAAA”). On Defendant’s appeal, the Ninth Circuit reversed the District Court’s judgement. First, the Ninth Circuit concluded that Plaintiffs had standing to bring suit to enjoin Defendant from enforcing AB5 against motor carriers operating in California contrary to Defendant’s argument. Because Plaintiffs’ complaint alleged that it contracted with independent truck owner-operators, rather than employees, to provide transportation services on their behalf, which was permissible under S. G. Borello & Sons, Inc. v. Dept. of Industrial Relations , 48 Cal. 3d 341 (1989), but not under “ABC” test in AB5, the Ninth Circuit concluded that Plaintiff had standing to bring suit. Specifically, Plaintiffs demonstrated that: (i) their policies were in conflict with AB5, (ii) that they had concrete plan to violate AB5, and (iii) that there was a threat by Defendant to initiate proceedings against Plaintiffs for violating AB5. Thus, under these circumstances, the Ninth Circuit determined that Plaintiffs faced a realistic danger of sustaining a direct injury as a result of AB5’s enforcement. However, the Ninth Circuit reversed the District Court’s order enjoining enforcement of the “ABC”