Thursday, May 16, 2019
Ninth Circuit: "Access Regulation" Allowing Union Organizing Activities on Employers' Private Property is Not a Fifth Amendment Taking. On May 8, 2019, in Cedar Point Nursery v. Shiroma, __ F.3d __ (Case No. 16-16321) (2019), a 2-1 Ninth Circuit panel majority held that a California regulation allowing union organizers access to agricultural employees on employers' private property, to communicate about union organization under certain limited circumstances, is not a Fifth Amendment taking. The plaintiffs alleged that the United Farm Workers union disrupted work by moving through their trim sheds with bullhorns, distracting and intimidating workers, and violated the access regulation by failing to provide the required written notice before taking access. Should the aggrieved plaintiffs in the case file a petition for writ of certiorari, the Supreme Court would have a unique opportunity to finally make clear that private property rights are not the second-class rights the case law often reveals them to be. More
In Expansive Decision, Ninth Circuit Rules Dynamex Applies Retroactively In Vazquez v. Jan-Pro Franchising, the Ninth Circuit made several impactful findings related to the infamous Dynamex decision:
Given the current legal landscape, companies engaging independent contractors and other non-employee workers in California should consider risk mitigation measures. More
- Aligning with several state court decisions supporting retroactivity, the Ninth Circuit ruled that Dynamex's ABC test applies retroactively.
- It also applied Dynamex to a multi-level franchise structure, expanding the test beyond the independent contractor context.
- Last, the Court issued guidance to the district court on remand reaffirming the difficulty of "passing" the ABC test
SCOTUS Strikes Another Blow to Class-Action Claims, Favoring Individual Arbitration A divided United States Supreme Court recently handed down the latest in a series of wins for employers, manufacturers, retailers, and other businesses looking to use arbitration as a means to mitigate the risks of possible class-action litigation. This time, in Lamps Plus, Inc. v. Varela, the Supreme Court overturned the Ninth Circuit Court of Appeals, finding that an employer could not be compelled to arbitrate similar claims by its employees on a class-wide basis, even though its employment agreement was ambiguous as to whether the arbitration of similar claims be conducted on a class-wide basis, instead of individually. More