What Public Employers Should Know About Liability for Employee Work-From-Home Expenses

By Kelsie E. Russell, Associate

A recent California Court of Appeal case (Krug v. Board of Trustees of the California State University) has implications for public agencies regarding employee reimbursement for work-from-home expenses.

Even though Labor Code Section 2802 does not explicitly or implicitly mention that it applies to government agencies, public employers should know they could still be responsible for an employer’s necessary expenditures to work from home.

This article breaks down the key takeaways and offers guidance.

Key Takeaways:

  • Labor Code Section 2802: This section requires employers to reimburse employees for reasonable and necessary work-related expenses.
  • CSU Case: In August, a California Court of Appeal ruled that California State University (CSU) did not have to reimburse a professor for home-office equipment and supplies acquired during the pandemic. The court cited CSU’s sovereign power granted by the California Education Code, allowing it discretion over purchases and reimbursements.
  • Sovereign Powers Doctrine: Public agencies are generally exempt from Labor Code requirements unless specifically included. The Sovereign Powers Doctrine shields public entities unless their inclusion would infringe on their sovereign powers, often granted by other laws.
  • Three-Part Test: The court applied a three-part test to determine whether the Sovereign Powers Doctrine applied:
    (1) Does the Labor Code provision explicitly mention governmental agencies?
    (2) Is there legislative intent to exempt them?
    (3) Would applying the Labor Code provision infringe on sovereign powers?
  • Krug’s Case: In Krug’s case, Labor Code Section 2802 did not expressly mention governmental agencies, and the legislative intent was silent. However, CSU’s sovereign power over expenses, granted by the Education Code, led to the denial of reimbursement.
  • Potential Liability: This case implies that public agencies might be liable for employee work-from-home expenses if their governing legislation doesn’t explicitly grant discretion for such reimbursements.

Guidance for Public Agencies:

  • Review Governing Legislation: Public agencies should carefully review the legislation that grants them sovereignty. If it does not explicitly address employee work-from-home expenses, they may be at risk for potential liability.
  • Consult Legal Experts: It is advisable for public agencies to consult with experienced attorneys to assess their liability under this new court holding and ensure compliance with labor laws.

In summary, the recent court case has highlighted the potential liability for public agencies in reimbursing employees for work-from-home expenses.

Public agencies should assess their governing legislation and seek legal counsel to navigate this complex issue and determine their obligations under Labor Code Section 2802.

State Adopts Expansive CEQA Infrastructure Streamlining Plan

On July 10, Governor Newsom signed five California Environmental Quality Act (CEQA) reform bills (SB 145, 146, 147, 149 & 150) as part of an infrastructure streamlining plan that the Governor’s office has called the “the state’s most ambitious permitting and project review reforms in a half-century.” Another component of this plan was Executive Order (EO) N-8-23 issued by Governor Newsom on May 19 which included measures to streamline the permitting and approval process for infrastructure projects intended to maximize California’s share of federal money under the Infrastructure Investment and Jobs Act and Inflation Reduction Act. Combined, the changes will provide for significant streamlining for qualifying infrastructure projects while providing more modest changes to litigation procedure in CEQA cases.

SB 149 amends Public Resources Code section 21167.6 to clarify and streamline procedures related to the preparation of the administrative record for the judicial review of legal challenges brought under CEQA in order to reduce litigation time. These new procedures, which apply to all types of projects, will include allowing a public agency to elect to prepare the record, setting a time limit for a petitioner to prepare the record within a 60 day deadline following notification of election to prepare the record, requiring good cause for extensions of record preparation and requiring that the record be prepared in a hyperlinked electronic format with limited exception. SB 149 also contains a CEQA Judicial Streamlining measure that provides for expedited judicial review of challenges under CEQA to certain water, transportation related, clean energy, and semiconductor or microelectronic projects. For the defined types of projects, any CEQA litigation, including appeals, would need to be resolved, to the extent feasible, within 270 days.

SB 146 permanently extends Government Code § 13979.2, which allows the California Secretary of Transportation to assume responsibilities under NEPA, and eliminates the January 1, 2025 sunset provision under existing law. As a result, the NEPA approval process will likely be streamlined given that joint federal/state agency preparation of documents is a more complicated and lengthy process. SB 147 includes reclassifying certain fully protected species and exempting any change in the California Endangered Species Act (CESA) status of any of the remaining exempted species from compliance with CEQA. In particular, the law repeals the four existing statutes designating species as “fully protected” under California law and consolidates regulations into the CESA. SB 145 requires Caltrans to ensure construction of three wildlife crossings over I-15 if an intercity passenger rail project is constructed, while SB 150 embeds workforces and community benefit requirements into contracting related to several federal programs.

Prior to passage, the plan’s legislative package was composed of 11 CEQA reform bills. Governor Newsom asked the state legislature to fast track the 11 CEQA reform bills concurrent with their duty to adopt a budget by June 15. However, the reform bills were not included in the Budget Act of 2023 passed on June 15 (SB 101). Instead, the reform bills were passed by the Legislature as separate bills in conjunction with an amended budget. The five bills included nearly all the content of the 11 CEQA reform bills except that the Governor agreed to drop a provision that could have fast-tracked the Delta Conveyance project. The language of the Governor’s Executive Order is general and broad in scope. Its implementing measures still need to be developed by an Infrastructure Strike Team responsible for maximizing federal and state funding opportunities for California infrastructure projects.

If you have any questions about the CEQA reform bills, please contact a member of Meyers Nave’s Land Use and Environmental Law team.

PAGA Standing and Arbitration: What California Employers Need to Know Now That the California Supreme Court Has Spoken

On July 17, 2023, the California Supreme Court issued its decision in Adolph v. Uber Technologies, Inc. With this decision California employers need to understand that plaintiffs do not lose standing when individual California Private Attorneys General Act (“PAGA”) claims are sent to arbitration and the PAGA claims of the other class members are likely to be stayed, rather than dismissed, pending determination in arbitration concerning whether a plaintiff is an “aggrieved employee.”

In Adolph, the Court addressed the question of whether an employee who was compelled to arbitrate individual Labor Code and PAGA claims maintains statutory standing to represent a class of other employees in companion PAGA claims. In a unanimous decision, the Court answered the question, “yes,” going against the U.S. Supreme Court’s conclusion on the same issue in Viking River Cruises v. Moriana. Heavily relying on its previous decision in Kim v. Reins International California, Inc., the Court reaffirmed that plaintiffs have standing so long as they are “aggrieved employees.” An aggrieved employee is broadly defined as (1) “someone who was employed by the alleged violator” and (2) “against whom one or more of the alleged violations was committed.” The Court in Adolph ruled that arbitrating individual claims does not strip PAGA plaintiffs of “aggrieved employee” status.

As a practical matter, this means that PAGA representative plaintiffs can rely on the Adolph decision to argue that the underlying representative action should be stayed (and not dismissed) while they litigate their individual claims in arbitration. After their own individual claims have been resolved through arbitration, and assuming the arbitrator finds that the individual employee was a victim of at least one Labor Code violation, they can return to court to litigate claims on behalf of other employees under PAGA.

PAGA has been criticized for spawning frivolous lawsuits and burdening an already overly-taxed judicial system. A ballot initiative to repeal PAGA has now qualified for the 2024 California ballot. Supported by the California Chamber of Commerce and other California business groups, “The California Fair Pay and Employer Accountability Act” would replace PAGA and restore wage/hour law enforcement to the California Department of Labor Standards Enforcement (DLSE). While the future of PAGA is uncertain, one thing is clear – in the short term, the Adolph decision will undoubtedly lead to increased PAGA litigation in the California courts.

Notwithstanding the Adolph decision, mandatory arbitration agreements remain a valuable tool for California employers. If you have any questions about the decision and how it may impact your operations, please contact a member of Meyers Nave’s Labor and Employment team.

Recent Developments Since the Viking River Cruises Decision: 5 Key Things California Employers Need To Know

The legal landscape for California employers has shifted rapidly since the recent U.S. Supreme Court’s decision in Viking River Cruises v. Moriana.

Here are 5 recent developments California employers need to know:

  1. PAGA Waivers: The Viking River Cruises decision was seen as a victory for California employers seeking to enforce PAGA waivers through arbitration agreements. The Supreme Court held that the Federal Arbitration Act (FAA) [preempts] California law’s prohibition on dividing individual and non-individual PAGA claims [through a valid arbitration agreement].
  2. Compelled Arbitration: Once individual PAGA claims are compelled to arbitration, non-individual PAGA claims must be dismissed for lack of standing, according to the Court’s ruling. However, there is ongoing debate among California courts regarding the interpretation of PAGA standing.
  3. Trial Court Approach: Most California trial courts are currently staying non-individual PAGA claims to await the resolution of individual PAGA claims in arbitration and guidance from the California Supreme Court’s review of Adolph v. Uber Technologies. The arbitrator’s determination of whether the plaintiff is an “aggrieved employee” is crucial for [PAGA standing.]
  4. Appellate Court Decisions: Several California Court of Appeals decisions have disagreed with the Supreme Court’s standing interpretation in Viking River Cruises. These appellate courts rely on PAGA’s statutory language and previous California Supreme Court rulings, such as Kim v. Reins Int’l Cal., Inc., which allow plaintiffs to pursue PAGA claims even after settling non-PAGA claims.
  5. Adolph v. Uber Technologies: The California Supreme Court heard oral arguments in Adolph v. Uber Technologies on May 9, 2023, to address the issue of standing for non-individual PAGA claims after the plaintiff is compelled to arbitrate their individual claims. The Court’s decision, expected by August 7, 2023, will provide clarity on this matter.”

To further elaborate on these developments, please see the following:

What Happens to the “Non-individual” PAGA Claims Now that Viking River Cruises Compels Arbitration of the “Individual” PAGA Claim?

The U.S. Supreme Court’s 2022 decision in Viking River Cruises v. Moriana was widely seen as a victory for California employers seeking to enforce PAGA waivers contained in arbitration agreements.[1] Since that time, a number of California courts have weighed in on the impact of the Viking River Cruises decision in the context of PAGA claims. On May 9, 2023, the California Supreme Court heard oral arguments in Adolph v. Uber Technologies to determine whether a plaintiff lacks standing to pursue a non-individual PAGA action based on Labor Code violations against other employees after the plaintiff is compelled to arbitrate their individual claims.  We expect the Court to issue its opinion in Adolph v. Uber Technologies by August 7, 2023.

What Happened in Viking River Cruises?

Last summer, the U.S. Supreme Court held that the Federal Arbitration Act (“FAA”) preempts California law’s prohibition of the division of an individual PAGA claim from a non-individual PAGA claim through a valid arbitration agreement.[i]  The Court also held that once individual claims are compelled to arbitration, the non-individual PAGA claims must be dismissed for lack of standing.[ii]  However, Justice Sotomayor’s concurrence invited California courts and Legislature to decide whether their interpretation of PAGA standing is correct.[iii]  Shortly after, the California Supreme Court granted review of Adolph.[iv]

What are California Trial Courts Doing in The Meantime?

California courts have followed the U.S. Supreme Court’s holding that individual PAGA claims can be compelled to arbitration.  Most state trial courts are staying the non-individual PAGA claims (1) to await the adjudication of the individual PAGA claims in arbitration and/or (2) to wait guidance from the California Supreme Court’s review of Adolph.

Some of these courts explain that a stay is appropriate because the arbitration will determine whether the plaintiff is an “aggrieved employee.” [v]  These courts underscore that under the statute, an “aggrieved employee” is (1) “any person who was employed by the alleged violator” and (2) “against whom one or more of the alleged violations was committed.”[vi]  Therefore, if an arbitrator decides that a plaintiff cannot prove the alleged Labor Code violations, the plaintiff is not “aggrieved” and does not have standing to move forward with the non-individual claims.[vii]

In February 2023, the Second District applied this reasoning in Rocha v. U-Haul.[viii]  However, Rocha is at odds with Gavriiloglou v. Prime Healthcare Management, Inc., holding that a plaintiff who loses on their individual claims in arbitration nevertheless sustains representative PAGA standing because “a party bound by issue preclusion must have been a party to the previous action in the same capacity.”[ix]  The Rocha court disagreed, stressing that issue preclusion does not require “identical capacity.”[x]  Therefore, where employers win arbitration of the individual PAGA claims, non-individual PAGA claims may be dismissed, but such outcome is not guaranteed at this time, given the budding split among the state appellate courts.

Other trial courts have stayed the non-individual PAGA claims pending the Adolph decision.[xi]  In some cases, trial courts have issued stays citing both the impending Adolph decision and awaiting the conclusion of arbitration.[xii]

Have the California Court of Appeals Weighed In?

Six California Court of Appeals have disagreed with Viking River on the standing issue.[xiii]  Five of these decisions bind state trial courts: Galarsa v. Dolgen Cal., LLC, Piplack v. In-N-Out Burgers, Gregg v. Uber Techs., Inc., Seifu v. Lyft Inc., Nickson v. Shemran, Inc.  The most recent decision, Quintero v. Dolgen Cal., LLC, concluded the same in an unpublished opinion.[xiv]  The appellate courts anchored their standing analysis on PAGA’s statutory language of “aggrieved employee.”  Central to their analysis is also the California Supreme Court’s holding in Kim v. Reins Int’l Cal., Inc., which holds that a plaintiff has standing to pursue PAGA claims even if the plaintiff settles the underlying non-PAGA claims.[xv]

After Viking River Cruises, the Galarsa court declined to follow the U.S. Supreme Court’s interpretation of standing, stating that “PAGA standing does not evaporate when an employer chooses to enforce an arbitration agreement.”[xvi]  The Galarsa court predicted that the California Supreme Court will reach the same conclusion.[xvii]  Likewise, the Fourth District’s decision in Piplack reiterated the statutory language and explained that it “could not reconcile” Viking River Cruises with Kim.[xviii]  Similarly, in Gregg, the Second District ordered the plaintiff to arbitrate the individual PAGA claims and stayed the non-individual claims pending arbitration.[xix]  Later, in Seifu, the Second District concluded “that a plaintiff is not stripped of standing to pursue non-individual PAGA claims simply because his or her individual PAGA claim is compelled to arbitration.”[xx]  The Fourth District reached the same conclusion in Nickson, but left “management of the superior court litigation during the pendency of arbitration to the trial court’s sound discretion.”[xxi]

What Did the Parties Argue in Adolph v. Uber?

Uber urged the Justices that the non-individual claims must be dismissed because the “Legislature linked the individual to the representative right to proceeding on behalf of himself and others.”  Concluding otherwise would foster “a ton of litigation.”  Uber cautioned that finding for Adolph “would put PAGA on a collision course with the Federal Arbitration Act, and it would wreak havoc on PAGA’s statutory framework.”  However, Justice Liu responded by saying, “I don’t see what the FAA problem is, that argues in favor of nonstanding here.”  Citing Robinson v. Southern Counties Oil Co., Uber explained that if Adolph’s individual claim is adjudicated in arbitration, “it will be resolved” and “after that occurs, Mr. Adolph will have received all the relief he could possibly hope to gain.”  Uber stressed that Adolph would not have “skin in the game” to pursue the non-individual claims after being compelled to arbitration.  The “no skin in the game” argument appears to be Uber’s strongest point and the court asked Adolph’s counsel to address this reading of the statute.

Adolph argued that a PAGA claim is a single claim proceeding in two forums—arbitration and court.  Adolph pointed out that neither Viking River Cruises nor the FAA uses the language of “severance” and that the California Courts of Appeal, and Justice Lui agree that a PAGA action is a single claim.  Adolph argued that a determination of an aggrieved status “is the skin in the game.”  Relying on Kim, Adolph argued that until there is a determination on whether a plaintiff is an “aggrieved employee,” the statute does not prevent a plaintiff from pursuing non-individual claims in court.  However, Adolph agreed that if, in arbitration, the plaintiff “is found not to be an aggrieved employee, that’s the end of the case.”

The Justices also invited discussion regarding whether staying non-individual PAGA claims should be required pending arbitration.  Adolph argued that a stay is not always required, but agreed that a trial court would have to accept an arbitrator’s adjudication regarding whether a plaintiff is “aggrieved.”  The Justices seemed unconvinced and a critical comment came from Justice Groban, who responded, “Your reasoning is leading us pretty hard toward a stay.”

While the court pushed back against the arguments of both parties, employers faces tough hurdles in Kim, and the recently published Courts of Appeal decisions.  Nevertheless, moving forward, arguments crafted by plaintiffs against staying non-individual claims are likely weak because arbitration would determine whether a plaintiff is “aggrieved” under PAGA.

We will stay tuned for the high court’s decision this summer and keep you posted.


[1] 142 S.Ct. 1906 (2022). For additional background, see the June 15, 2022 Meyers Nave Alert on Viking River Cruises here: https://www.meyersnave.com/supreme-court-tells-plaintiffs-to-port-individual-paga-claims-into-arbitration/

[i] Viking River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1924 (2022).

[ii] Id. at 1925.

[iii] Id. at 1925-6.

[iv] Adolph v. Uber Techs., Inc., No. G059860, 2022 WL 1073583 (Cal. Ct. App. Apr. 11, 2022), review granted (July 20, 2022).

[v] Arboleda v. Guardian Pharm. of S. Cal. LLC, No. 37-2021-00008791-CU-OE-CTL, 2022 LEXIS 54023, at *8 (Cal.Super., San Diego County Aug. 5, 2022); Lepe v. Bristol Farms, No. 21STCV05909 (Cal.Super., Los Angeles County Sept. 9, 2022); Adams v. Pacific Villa, Inc., No. 20STCV37260 (Cal.Super., Los Angeles County July 27, 2022); Gozzi v. Acadia Malibu, No. 19STCV39861, 2022 LEXIS 69347, at *8 (Cal.Super., Los Angeles County July 13, 2022).

[vi] Cal. Lab. Code, § 2698 et seq.

[vii] Hailey v. Specialty Rests. Corp., No. 30-2022-01255938, LEXIS 59899, at *9 (Cal.Super., Orange County Sept. 30, 2022).

[viii] Rocha v. U-Haul Co. of California, 88 Cal. App. 5th 65, 77-78 (2023).

[ix] Gavriiloglou v. Prime Healthcare Mgmt., Inc., 83 Cal. App. 5th 595, 606 (2022), as modified on denial of reh’g (Sept. 20, 2022), review denied (Jan. 11, 2023).

[x] Rocha, 88 Cal. App. 5th at 80-81.

[xi] Lopez v. P.R. Perneky Mgmt. Corp., No. 22AHCV00578, 2023 LEXIS 15712, at *12-14 (Cal.Super., Los Angeles County Feb. 2, 2023); Bobbitt v. Aurora Vista Del Mar LLC, No. 56202200563179CUOEVT, 2022 WL 17970744, at *1 (Cal.Super. Ventura County Dec. 15, 2022); Mendoza v. Streamline Finishes, No. 30-2021-01207462-CU-OE-CXC, 2022 LEXIS 82839, at *7 (Cal.Super., Orange County Dec. 1, 2022); Lynch v. Snp Pharm., No. 22PSCV00139, 2022 LEXIS 85667, at *17 (Cal.Super., Nov. 22 2022); Castro v. Clay Lacy Aviation, Inc., No. 21VECV00304, 2022 LEXIS 78750, at *10 (Cal.Super., Los Angeles County Nov. 17, 2022); Salazar v. Epiphany Care Homes Inc., No. 56202200562790CUOEVT, 2022 WL 4232874, at *1 (Cal.Super., Ventura County Aug. 25, 2022); Flores v. Amwest, Inc., No. 21STCV16066, 2022 LEXIS 56779, at *5 (Cal.Super., Los Angeles County Oct. 4, 2022).

[xii] Garcia v. St Paul’s Episcopal Home, No. 2022-22641, 2023 LEXIS 6021, at *8 (Cal.Super., San Diego County Jan. 27, 2023); Kunsman v. Patriot Environmental Servs., No. 34-2021-310042, 2022 LEXIS 69628, at *9 (Cal.Super., Sacramento County Oct. 25, 2022); Harden v. Staffing Solutions, Inc., No. HG21103640, 2022 WL 4348674, at *4-5 (Cal.Super., Alameda County Sep. 14, 2022); Jacobs v. Best Buy Stores, L.P., No. RG19001196, 2022 WL 4348676, at *4–5 (Cal.Super., Alameda County Sep. 14, 2022); Applegate v. Seed Beauty LLC, No. 56202100555658CUOEVT, 2022 WL 4595046, at *6 (Cal.Super. Ventura County Sep. 13, 2022); Mendoza v. Laguna Cookie Co., No. 19-1107762, 2022 LEXIS 55903, at *9-10 (Cal.Super., Orange County Aug. 12, 2022).

[xiii] Galarsa v. Dolgen California, LLC, 88 Cal. App. 5th 639 (2023), as modified on denial of reh’g (Feb. 24, 2023); Piplack v. In-N-Out Burgers, 88 Cal. App. 5th 1281 (2023), review filed (Apr. 17, 2023); Gregg v. Uber Techs., Inc., 89 Cal. App. 5th 786 (2023), review filed (Apr. 28, 2023); Seifu v. Lyft, Inc., 89 Cal. App. 5th 1129 (2023), review filed (May 9, 2023); Nickson v. Shemran, Inc., 90 Cal. App. 5th 121 (2023); Quintero v. Dolgen California, LLC, No. F083769, 2023 WL 1878201 (Cal. Ct. App. Feb. 10, 2023), as modified (Mar. 7, 2023), review granted (Apr. 26, 2023).

[xiv] Quintero v. Dolgen California, LLC, No. F083769, 2023 WL 1878201 (Cal. Ct. App. Feb. 10, 2023), as modified (Mar. 7, 2023), review granted (Apr. 26, 2023).

[xv] Kim v. Reins Int’l California, Inc., 9 Cal. 5th 73, 80 (2020).

[xvi] Id. at 643, 653

[xvii] Id. at 654 (“We predict that the California Supreme Court will conclude that California law does not prohibit an aggrieved employee from pursuing Type O claims in court once the Type O claims are separated from the Type A claims ordered to arbitration.”).

[xviii] Piplack, 88 Cal. App. 5th at 1285.

[xix] Gregg, 89 Cal. App. 5th at 792.

[xx] Seifu, 89 Cal. App. 5th at 1134.

[xxi] Nickson, 90 Cal. App. 5th at 121.

Sackett v. EPA: What Lies Ahead for Water Regulation and Wetland Protection?

On May 25, 2023, the U.S. Supreme Court reversed the Ninth Circuit’s decision in the Sackett v. EPA case in favor of the Environmental Protection Agency (“EPA”) and instead held that the Clean Water Act (“CWA”) only protects wetlands which are indistinguishable from waters of the United States.

In a unanimous decision, the Court rejected the significant nexus test previously used to protect wetlands with an ecological relationship to navigable waters. There was sharp disagreement on what the new rule should be, with four justices disagreeing that wetlands must have a continuous surface connection with waters of the United States to be granted CWA protection.

Nevertheless, the majority’s decision further restricted water bodies that can qualify as “waters of the United States” (“WOTUS”) and thereby receive the legal protections of the CWA.

What Does This Mean for Wetlands?

The Sackett decision provides a very clear standard that substantially restricts the federal government’s ability to regulate wetlands. Specifically, the Court ruled that for wetlands to be granted CWA protection, they must, first, be adjacent to a body of water that qualifies as “waters of the United States” and, second, have a continuous surface connection with those waters as indistinguishable parts. Under this rationale, according to the majority, wetlands that are entirely separate from traditional bodies of water do not fall under CWA jurisdiction. Following the Court’s decision, this means that projects across the country may no longer be subject to federal permitting, leaving the burden of protecting and regulating many wetlands to the states.

What Does This Mean for California?

The treatment of wetlands and waters regulated by the State of California will remain largely the same. The California State Water Resources Control Board, while disappointed in the Sackett decision, emphasized that it only narrows the scope of federal jurisdiction and does not weaken California’s more stringent protections for wetlands.[1] Having anticipated the Court’s decision, the State Water Board, moving forward, will increasingly rely upon California’s own regulatory wetlands protection programs which allow the Board to retain its authority to protect the 2.9 million acres of wetlands remaining in California today.[1]

What Does This Mean for Other Water Features?

The majority opinion is an express adoption of Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715, 742 (2006), which also served as the basis for the Trump Administration’s Navigable Waters Protection Rule.  The Court, shifting from the previous definition of WOTUS that encompassed all navigable waters and their adjacent tributaries and wetlands, limited this term in Sackett to include only those relatively permanent bodies of water forming geographical features ordinarily described as streams, oceans, rivers, and lakes.  While the nature and extent of Sackett’s impact on water bodies beyond wetlands is uncertain, the decision indicates that the Court considers permanency and navigability to be key factors in determining CWA jurisdiction, calling into question whether ephemeral streams and other water bodies that are not relatively permanent remain under federal oversight.  However, the Sackett decision did not provide clear direction to the EPA as to precisely how it must change its WOTUS rule.

What Are the Next Steps?

The EPA and the U.S. Army Corps of Engineers will interpret WOTUS according to the Court’s decision in Sackett. The agencies are currently reviewing the decision to determine their next appropriate steps, but stress the importance of a “common sense and science-based definition” of WOTUS to build upon the transformative progress the CWA has had thus far in preserving the nation’s waters for current and future generations.

If you have any questions about the decision and how it may impact your operations, please contact a member of Meyers Nave’s Water Law team.

[1] State Water Resources Control Board, California Water Boards, State Water Board Statement: U.S. Supreme Court Decision Decreases Federal Wetlands Protection (May 25, 2023).

[1] Id.

Meyers Nave Secures Victory for City of Oakland as Court of Appeal Upholds EIR for A’s Baseball Stadium Project

In a lengthy published decision, the Court of Appeal upheld the City of Oakland’s environmental impact report (EIR) for the proposed Oakland A’s MLB stadium and mixed use project, rejecting numerous challenges and affirming the trial court’s decision in full. Meyers Nave represented the City of Oakland in the litigation and advised during the development of the EIR in the administrative process.

Subject to expedited judicial review under a special statute for the project (AB 734), the Court of Appeal decision was issued less than a year after the EIR challenge was filed in the trial court. The decision provides detailed guidance on many important issues under the California Environmental Quality Act (CEQA), including:

  • Deferred Mitigation: The Court of Appeal soundly rejected numerous claims that mitigation for the Project’s greenhouse gas impacts (GHG), hazardous materials and other impacts was improperly deferred.
  • Exhaustion: The Court of Appeal discussed the level of detail required to exhaust administrative remedies before the agency, rejecting claims related to the Project’s rail safety and other impacts.
  • Speculation: The decision affirmed the EIR’s approach regarding the speculative nature of impacts associated with displaced tenants from the Project site.

The Court of Appeal also addressed substantive issues related to GHG impacts, analysis and mitigation of at-grade rail crossings, hazardous materials and cumulative impacts analysis. Overall, the decision is a resounding affirmation that the City’s EIR complied with CEQA requirements.

The Meyers Nave team included Shaye Diveley and Tim Cremin. Learn more about our Land Use and Environmental Law expertise.

5 Things Water Utilities Should Know About the EPA’s Recent Proposal Establishing Legal Limits for Certain PFAS Substances in Drinking Water

On March 14, 2023, the U.S. Environmental Protection Agency (EPA) announced the proposed National Primary Drinking Water Regulation (NPDWR) to establish legally enforceable Maximum Contaminant Levels (MCLs) for six PFAS substances (the “Proposed Regulation”). The EPA will hold a webinar about the PFAS NDPWR for water utilities on March 29 to provide information regarding the Proposed Regulation, as reflected on the U.S. EPA webpage here.

Here are five key things you should know about the Proposed Regulation, and how it may impact water utilities going forward:

  1. The EPA has proposed a regulation to establish MCLs for six PFAS substances in drinking water.
  2. The proposed MCL for PFOA and PFOS is 4 parts per trillion, and the proposed regulation uses a hazard index calculation to limit any mixture containing one or more of PFNA, PFHxS, PFBS, and/or GenX Chemicals.
  3. The EPA plans to finalize the regulation by the end of 2023, and public water systems will be required to monitor for these chemicals, notify the public of PFAS levels, and reduce PFAS if levels exceed the proposed regulatory standards. Drinking water suppliers will be subject to MCL limitations, and if the proposed rule is adopted, water systems with PFAS levels that exceed the proposed MCLs would need to take action to provide safe and reliable drinking water.
  4. Comments on the new regulation must be submitted to the public docket during the 60-day public comment period following the proposed rules being published in the Federal Register.
  5. EPA is also proposing health-based, non-enforceable Maximum Contaminant Level Goals (MCLGs) for the six PFAS. These levels represent the maximum level of a contaminant in drinking water where there are no known or anticipated negative health effects. The proposed MCLG for PFOA and PFOS is any amount above zero.

Also, the new proposed rule signals other likely impacts to NPDES permits, waste discharge requirements, and site clean-ups in California because new MCL standards affect each of these programs.

Key Takeaways

Water utilities will want to attend the upcoming EPA webinar, submit comments during the comment period, and begin to evaluate potential obligations, such as identifying alternative uncontaminated sources of water or designing water treatment systems that EPA believes are feasible.

If you have any questions about the Proposed Regulation and how it may impact your operations, please contact a member of Meyers Nave’s Water Law team.

Ninth Circuit Blocks California’s AB 51, Reopening the Door for Mandatory Employment Arbitration

Mandatory Arbitration is Alive and Well

A big win for California employers was announced February 15, 2023, when the Ninth Circuit Court of Appeals in Chamber of Commerce of the United States of America v. Bonta found that the Federal Arbitration Act (FAA) preempts California legislature’s attempt to prohibit employers from requiring employees to arbitrate employment disputes by enacting AB 51.

This is important because arbitration agreements can facilitate the prompt resolution of employment-related disputes, and they provide an effective alternative to the lengthy and costly (for both employers and employees) process of litigation. The February 15, 2023 Bonta decision means that California employers can continue to implement arbitration agreements as a condition of employment.

How Did We Get Here?

It’s been a long and winding road.

In 2019, Governor Newsom signed AB 51 into law, and it was set to go into effect January 1, 2020. Among other things, AB 51 purported to ban employers from requiring applicants and employees as a condition of employment to sign arbitration agreements waiving their right to pursue Labor Code or California Fair Employment and Housing Act (FEHA) claims in court.

The U.S. Chamber of Commerce and several other business groups filed suit for a preliminary injunction in federal district court, arguing the FAA preempted AB 51 and requested a temporary restraining order to halt enforcement while litigation was ongoing. Two days before AB 51 was set to go into effect, the temporary restraining order was granted. On January 31, 2020, the district court granted the preliminary injunction finding that AB 51 violated the FAA as it imposed a higher consent requirement and interfered with the FAA’s goal of promoting arbitration by threatening civil and criminal penalties against employers.

California appealed the district court’s decision to the Ninth Circuit. In a ruling in September 2021, a three-judge panel of the Ninth Circuit reversed the district court’s decision in part, holding that the FAA did not preempt AB 51 to the extent it sought to regulate an employer’s conduct prior to executing an arbitration agreement.

The Chamber of Commerce then requested that the Ninth Circuit reconsider its September 2021 decision. Following a closely watched decision in Viking River Cruises v. Moriana, the Ninth Circuit withdrew its original decision in favor of a rehearing.

The Result

The Ninth Circuit’s February 15, 2023 decision in Bonta affirmed the district court’s grant of a preliminary injunction and held the FAA preempted AB 51 because it “stands as an obstacle to [further Congress’s policy of encouraging arbitration].”

What’s Next?

This may not be the last word, but for now, the latest Ninth Circuit decision in Bonta adds leverage to the position that employers can insist on mandatory arbitration agreements to resolve most employment-related disputes. We will keep you posted.

As always, employers should consult with legal counsel to discuss further.

The California Employer’s Guide to New 2023 Laws

As we have seen in just the past few weeks of the new year, laws are rapidly changing for employers. Following our Employment Law Update webinars provided to Private Sector and Non-Profit Employers, and Public Entity Employers, our Labor & Employment Team has provided an extensive 2023 Employment Law Update detailing new and evolving laws for all types of employers.

The 2023 Employment Law Update covers:

  • New pay transparency law
  • New rights to unpaid leave to care for a “designated person”
  • New law regarding marijuana use off-the-job
  • COVID-19 updates
  • Expanded requirements for private employers under the California Consumer Privacy Act

If you have any questions, please contact our attorneys.

Click here to download the 2023 Employment Law Update.