18th Annual Workplace Class Action Report - 2022 Edition

600 Annual Workplace Class Action Litigation Report: 2022 Edition test codified in AB5 against motor carriers doing business in California. The Ninth Circuit held that the District Court erred when it determined that such enforcement was preempted by FAAAA. Because the “ABC test” was a generally applicable labor law (in that it applies to employers generally and does not single out motor carriers), the Ninth Circuit held that it was not preempted by FAAAA. For this reason, the Ninth Circuit ruled that Plaintiffs were unlikely to succeed on the merits of their complaint, and therefore it reversed the District Court’s judgment enjoining Defendant from enforcing AB-5 against motor carriers doing business in California. Doe, et al. v. Scalia, 2021 U.S. Dist. LEXIS 60687 (M.D. Penn. March 30, 2021). Plaintiffs, a group of plant workers, sought a writ of mandamus pursuant to Section 13(d) of the Occupational Safety and Health Act of 1970 (the “Act”), compelling the U.S. Secretary of Labor Eugene Scalia (the “Secretary”) and the Occupational Safety and Health Administration ("OSHA"), to seek a court order to direct Plaintiffs’ employer, Maid-Rite Specialty Foods (the “Plant”), to take steps to abate imminent dangers to its employees related to the transmission of COVID-19. Defendants moved to dismiss Plaintiffs’ complaint pursuant to Rule 12(b)(6) for failure to state a claim, and the Court granted Defendants’ motion. The Court was called upon to determine whether it had jurisdiction over a complaint in mandamus pursuant to Section 13(d) of the Act where the Secretary had not received a recommendation to take legal action from an OSHA inspector and, accordingly, had not rejected a recommendation to initiate imminent danger proceedings. The Court determined that it did not have jurisdiction in such a case and therefore it granted Defendants’ motion to dismiss. Section 13(d) of OSHA provides that an employee may bring an action for a writ of mandamus if the Secretary arbitrarily or capriciously fails to seek relief where imminent danger is alleged to exist. An OSHA inspector had concluded an inspection and issued a final decision not to cite the Plant. An office of OSHA had received two complaints in 2020 alleging that the Plant was not taking steps to protect employees from the spread of COVID-19. A formal investigation was opened by OSHA where approximately 15 to 20 employees were interviewed and an onsite inspection of the Plant was conducted. The OSHA investigators concluded that no imminent danger was present at the Plant. The investigators took into account that the Plant had implemented various mitigating factors such as sanitation procedures, staggering work breaks, providing for social distancing in the break rooms, installing additional hand sanitizing stations, purchasing and distributing face masks and shields for employees, requiring temperature checks of everyone entering the Plant, and instructing those feeling ill not to come to work. Plaintiffs argued that in reading § 13(d) in isolation they were entitled to petition the Court because they faced imminent danger and arguably the Secretary’s lack of prompt action was arbitrary and capricious. However, the Court agreed with Defendants’ reading of § 13(d) and rejected Plaintiffs’ position. Reading the statute as a whole, the Court concluded that it was apparent that § 13(d) affords employees relief only in those instances where the Secretary has been presented with a finding of imminent danger by an OSHA inspector and has arbitrarily and capriciously rejected the recommendation to take legal action. In this case, then, the Court reasoned that Plaintiffs’ complaint was not properly before it as no OSHA inspector had found that the Plant presented an imminent danger to its employees and, consequently, no recommendation had been made to the Secretary to take action pursuant to § 13. Thus, because § 13 did not grant it jurisdiction over imminent danger complaints at any stage of the proceeding, but rather only when the specific actions had been taken by the OSHA inspector and the Secretary, and because the OSHA inspector and the Secretary had not taken those actions here, the Court ruled that Plaintiffs failed to state a viable claim. Accordingly, the Court granted Defendants’ motion to dismiss. ESI, et al. v. City Of Dallas, 2021 U.S. Dist. LEXIS 62879 (E.D. Tex. March 31, 2021). Plaintiffs, the State of Texas and employers subject to the City of Dallas’ paid-sick leave ordinance, brought an action challenging the validity of the City’s recently-enacted ordinance requiring employers to pay employees who use earned sick leave for hours spent not working. Several Texas cities had previously enacted similar paid sick-leave ordinances that had been struck down by state courts. Plaintiffs filed suit alleging violations of the First, Fourth, and Fourteenth Amendment to the U.S. Constitution. Plaintiffs also alleged that Dallas’s paid-sick-leave ordinance was preempted by the Texas Minimum Wage Act (“TMWA”). Following the Court’s dismissal of the federal constitutional claims, only the state preemption claim remained. Plaintiffs thereafter moved for summary- judgment on the preemption claim. Plaintiffs requested that the Court hold that Dallas’s paid-sick-leave ordinance was preempted by the TMWA and therefore violated the Texas Constitution. Plaintiffs further requested that the Court permanently enjoin the City from enforcing the ordinance. The Court found that the ordinance was preempted by the TMWA and granted Plaintiffs’ request for an injunction. While noting that the