Employment Law Blog

Filter:  Arbitration

Intervention and Substantially Similar Actions

An applicant may intervene as of right pursuant to FRCP 24(a) if the following elements are satisfied: (1) the motion must be timely; (2) the applicant must have a “significant protectable interest” relating to the property or transaction which is the subject of the action; (3) the applicant must be situated such that disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant’s interest must be inadequately represented by the parties to the action. Smith v. Marsh, 194 F.3d 1045, 1049 (9th Cir.1999). The Court must interpret the rule broadly in favor of intervention. Forest Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1493 (9th Cir.1995); see also Widjaja v. YUM! Brands, Inc., Case No CV-F-09-1074 OWW-DLB, 2009 WL 3462040 (E.D.Cal. Oct. 22, 2009).

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Determining Employment Status in California

“The California Supreme Court has developed a multi-factor test for determining employment status.” Ruiz v. Affinity Logistics Corp. (9th Cir. 2011) 667 F.3d 1318, 1324, quoting S.G. Borello & Sons, Inc. v. Dept. of Indust. Rel. (1989) 48 Cal.3d 341 (“Borello”).  “[U]nder California law, once a plaintiff comes forward with evidence that he provided services for an employer, the employee has established a prima facie case that the relationship was one of employer/employee.” Narayan v. EGL, Inc. (9th Cir. 2010) 616 F.3d 895, 900, citing Robinson v. George, (1940) 16 Cal.2d 238, 243-244. “Once the employee establishes a prima facie case, the burden shifts to the employer, which may prove, if it can, that the presumed employee was an independent contractor.” Id. (citation omitted).
Under California law, primary test of an employment relationship is whether “the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired….” Borello, supra, at 350. While the right to control work details is the most important factor, there are also “’secondary’ indicia of the nature of a service arrangement.” Id. These secondary factors, principally derived from the Rest.2d Agency, include

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Motion to Compel Arbitration

The FAA provides, that a “written provision in any…contract evidencing a transaction involving commerce to settle by arbitration a controversy…shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of the contract.” 9 U.S.C. § 2. In order to opt out of the FAA, a controlling state arbitration law must be specified in the agreement. See, e.g. Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1209 (9th Cir. 1998) (“In other words, parties are free to contract around the FAA by incorporating state arbitration rules into their agreements.”).

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