August 21, 2019

Key California Employment Law Cases: July 2019

This month’s key California employment law cases involve payment of wages, workplace conditions, public employment issues, and civil procedure.

Rodriguez v. Nike Retail Servs., 928 F.3d 810 (9th Cir. 2019)

Summary:  De minimis doctrine did not apply to regularly occurring off-the-clock exit inspections where there was genuine dispute as to whether exit inspections were brief. 

Facts:  Defendant Nike required its retail employees to submit to exit inspections each time they left the store on a break or at the end of the day.  While exit inspections varied in length (between “zero seconds and several minutes”), they always occurred after employees had punched out such that the inspections were off the clock and uncompensated.  Plaintiff filed a class action lawsuit alleging that Nike’s policy violated the California Labor Code’s minimum wage and overtime provisions.  Nike moved for summary judgment, arguing that the claims were barred by the federal de minimis doctrine, which precludes recovery for otherwise compensable amounts of time that are small, irregular, or administratively difficult to record.  The federal district court granted Nike’s motion for summary judgment, holding that the federal de minimis doctrine barred plaintiff’s claims.  Plaintiff appealed and the Court of Appeals for the Ninth Circuit stayed appellate proceedings pending the California Supreme Court’s decision in Troester v. Starbucks Corp., 5 Cal. 5th 829, 235 Cal. Rptr. 3d 820 (2018), which held that the federal de minimis doctrine does not apply to California’s wage-and-hour statutes or regulations.

Court’s Decision:  The Ninth Circuit reversed, holding that, in light of Troester, the district court erred in applying the federal de minimis doctrine.  Although Nike effectively conceded on appeal that the district court had applied the wrong legal standard, it argued that the exit inspections at issue were de minimis even under Troester, noting that Troester left open the possibility that a California version of the de minimis doctrine may apply.  The Ninth Circuit rejected this argument.  Troester mandates compensation where employees are regularly required to work off the clock for more than minute or brief periods of time.  Nike’s exit inspections occurred regularly, and there was a genuine dispute as to whether the amount of time the exit inspections took was minute or brief, foreclosing application of any de minimis rule.

Practical Implications:  In light of this case and Troester, imposing any work-related obligation on non-exempt employees before or after they have clocked out is legally risky.


Townley v. BJ’s Restaurants, Inc., 37 Cal. App. 5th 179, 249 Cal. Rptr. 3d 274 (2019)

Summary:  Cost of slip-resistant shoes is not necessary expenditure that employer must reimburse under California Labor Code section 2802.

Facts:  Defendant, a restaurant chain, adopted a safety policy that required all hourly restaurant employees to wear black, slip-resistant, close-toed shoes.  The policy did not require employees to buy any particular brand, style, or design of shoe, and employees could wear their shoes outside of work.  Defendant did not reimburse employees for the cost of the shoes.  Plaintiff, a server at one of defendant’s restaurants, filed a class and representative action against defendant, alleging that defendant violated California Labor Code section 2802 by failing to reimburse employees for the cost of the slip-resistant shoes.  Defendant filed, and the trial court granted, a motion for summary judgment.  The trial court concluded that the cost of slip-resistant shoes is not a necessary expenditure within the meaning of section 2802.

Court’s Decision:  The California Court of Appeal affirmed, reasoning that section 2802 does not require an employer to pay for an employee’s basic, non-uniform wardrobe items.  Because plaintiff had not argued that the slip-resistant shoes she was required to buy were part of a uniform or were not usual and generally usable in the restaurant industry, her claim under section 2802 failed as a matter of law.\

Practical Implications:  Class action claims for reimbursement of equipment and clothing are becoming more common, so while the employer prevailed here, employers should be cautious about the types of clothing they require employees to wear. 


Stoetzl v. Dep’t of Human Res., 7 Cal. 5th 718, 248 Cal. Rptr. 3d 891 (2019)

Summary:  Union-represented state correctional employees could not bring claims for pre- and postwork walk time, but unrepresented state correctional employees could.

Facts:  State correctional employees brought claims against the State of California and various departments of the state government for failure to pay overtime, failure to pay minimum wage, and failure to keep accurate records.  Plaintiffs claimed entitlement to additional compensation for time spent on pre- and postwork activities (referred to as “walk time” in the California Supreme Court’s opinion).  Two types of “walk time” were at issue:  (1) the time a correctional employee spent after arriving at a prison’s outermost gate but before beginning the first activity the employee was employed to perform, plus analogous time at the end of the employee’s shift (referred to as “entry-exit walk time”); and (2) the time a correctional employee spent after beginning the first activity the employee was employed to perform but before the employee arrived at his or her assigned work post, plus analogous time at the end of the employee’s shift (referred to as “duty-integrated walk time”).  The trial court certified two plaintiff subclasses, one for supervisory employees who were not represented by a union during the class period, and the other for union-represented employees.  After dismissing several claims on summary judgment, the trial court ruled in favor of defendants as to both subclasses on the remaining issues brought to trial.  The California Court of Appeal affirmed as to the represented plaintiffs, but reversed as to the unrepresented plaintiffs.

Court’s Decision:  The California Supreme Court affirmed in part and reversed in part.  First, the subclass of represented plaintiffs had agreed through collective bargaining to a specific amount of compensation for “duty-integrated walk time,” and there was no allegation that the state had failed to pay that amount.  The collective bargaining agreements also stated that they constituted the entire understanding of the parties as to matters contained in the agreements, thus precluding other forms of compensation like “entry-exit walk time.”  Because these collective bargaining agreements were approved by the California Legislature, signed by the Governor, and chaptered into law, they became specific legislation applicable to the represented plaintiffs, superseding the more general laws on which they brought their claims.  As to the subclass of unrepresented plaintiffs, however, the court held that these employees may be entitled to additional compensation for “duty-integrated walk time.”  The terms and conditions of employment for the unrepresented plaintiffs are determined by the California Department of Human Resources (“CalHR”) and set forth in the Pay Scale Manual and CalHR regulations.  “Duty-integrated walk time,” but not “entry-exit walk time,” falls within the Pay Scale Manual’s definition of compensable time.  If, as the unrepresented plaintiffs alleged, the state did not pay for “duty-integrated walk time,” those plaintiffs may be entitled to additional pay on remand.

Practical Implications:  This case centered on collectively bargained rights, but it is a good reminder of the types of preliminary and postliminary activities that might be considered compensable time.


Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 249 Cal. Rptr. 3d 569 (2019)

Summary:  California’s anti-SLAPP statute can be used to screen claims alleging discriminatory or retaliatory employment actions.

Facts:  Plaintiff was an African-American and Latino journalist over the age of forty for defendant Cable News Network who covered matters of general public importance.  Defendant terminated plaintiff based on accusations he had plagiarized portions of a story he wrote on the retirement of Los Angeles County Sheriff Lee Baca.  Plaintiff sued defendant under the California Fair Employment and Housing Act, claiming that defendant had denied him promotions, given him unfavorable assignments, and fired him for discriminatory and retaliatory reasons.  He also brought a defamation claim, alleging that defendant defamed him by telling prospective employers that he had committed plagiarism.  Defendant filed an anti-SLAPP motion, arguing that plaintiff’s discrimination and retaliation claims arose from his termination, and that the decision to fire him was in furtherance of its right to determine who should speak on its behalf on matters of public interest.  Defendant also argued that plaintiff’s defamation claim arose from protected speech because its statements as to whether plaintiff met its editorial standards in reporting on a matter of public interest furthered its exercise of free speech rights.  The trial court granted defendant’s motion.  The California Court of Appeal reversed, concluding that discrimination and retaliation do not qualify as protected activity for purposes of the anti-SLAPP statute.  The court reasoned that where a plaintiff alleges improper motive, it does not matter that the concrete actions taken by the employer might otherwise qualify as protected speech or petitioning activity under the anti-SLAPP statute.  

Court’s Decision:  The California Supreme Court affirmed in part and reversed in part.  Resolving a split in the courts of appeal, the court held that employment discrimination and retaliation claims are not immunized from anti-SLAPP scrutiny.  Discrimination and retaliation claims each have two necessary elements: improper motive and concrete adverse action.  For purposes of determining whether an act qualifies as protected activity under the anti-SLAPP statute, it is the defendant’s acts that matter, not the plaintiff’s allegations of improper motive.  If the acts alleged in support of the plaintiff’s claims are covered by the anti-SLAPP statute, then its protections apply.  Defendant made out a prima facie case that its termination decision was covered by the anti-SLAPP statute because it was based on considerations of journalistic integrity and credibility that impact its ability to participate meaningfully in public discourse on matters of public interest.  Defendant did not, however, make out a prima facie case as to the other discriminatory and retaliatory acts plaintiff alleged, as it had failed to show that these decisions had a substantial relationship to its ability to speak on matters of public concern.  Finally, defendant’s alleged defamatory statements were not covered by the anti-SLAPP statute as they did not qualify as speech on a public issue or an issue of public interest that contributed to public discussion of that issue.

Practical Implications:  This case establishes a new defense under the Fair Employment and Housing Act when termination of an employee arises from the employer’s speech on matters of public concern.