August and September 2019 employment law decisions

Retaliation claim can be proved with evidence concerning a comparator who need only be similarly situated to the plaintiff employee in all relevant respects.

September 26, 2019, First District Court of Appeal, Rashmi Gupta v. Trustees of the California State University: The court of appeal affirmed a jury verdict finding San Francisco State University retaliated against Dr. Gupta in denying her tenure and terminating her employment. The trial court did not err by allowing Dr. Gupta to present evidence of a comparator professor because the other professor was similarly situated in all relevant respects and Dr. Gupta did not have to show that she was clearly superior to him.

Premium wages required for on-duty meal periods unless there is written agreement to such meal periods.

September 26, 2019, Second District Court of Appeal, Gustavo Naranjo v. Spectrum Security Services, Inc.: The court of appeal determined that at-will, on-call, hourly, nonexempt employees who are paid for on-duty meal periods are also entitled to premium wages (one hour of wages for each off-duty meal period not provided) if the employer does not have a written agreement that includes an on-duty meal period revocation clause.

Employees entitled to penalties and attorney’s fees in whistleblower retaliation case.

September 25, 2019, Second District Court of Appeal, Todd Hawkins v. City of Los Angeles: A jury found in favor of Mr. Hawkins and his co-plaintiff Hyung Kim who claimed retaliation for whistleblowing. The court of appeal affirmed the jury verdict and the trial court’s award of a Private Attorney General Act (PAGA) penalty because the plaintiffs’ pre-lawsuit notice referred to their employer’s conduct directed toward them and other employees that also impacted the public. The court of appeal also affirmed the trial court’s award of attorney’s fees under PAGA, and under a law concerning enforcement of an important right affecting the public interest (Code of Civil Procedure section 1021.5) because the case concerned claims that the plaintiffs were retaliated against for reporting pressure on hearing examiners to change decisions concerning parking citations.

Common law failure to hire claim is not available.

September 24, 2019, Third District Court of Appeal, Wilfert Williams v. Sacramento River Cats Baseball Club, LLC: The court of appeal determined that Mr. Williams’s failure to hire claim is not cognizable under a common law doctrine (Tameny claim) because the doctrine requires the prior existence of an employment relationship that gives rise to an employer’s duty to not violate fundamental public policy with respect to its employees.

Employee’s whistleblower case survives anti-SLAPP motion.

August 29, 2019, Second District Court of Appeal, James Jeffra v. California State Lottery: The court of appeal disagreed with the trial court’s denial of an anti-SLAPP motion on grounds Mr. Jeffra’s whistleblower case arises from non-protected retaliation. The Second District applied a recent California Supreme Court decision that whether a case arises from protected activity depends on the elements of the claim that need to be proven. In this retaliation case, Mr. Jeffra had to prove he was subjected to an adverse employment action, which he claimed was an investigation of alleged wrongdoing (followed by administrative leave and forced retirement). Nevertheless, the court of appeal affirmed the denial of the motion because Mr. Jeffra presented sufficient evidence to establish a probability of prevailing on the merits.

Whether morbid obesity is a disability under federal law in the absence of an underlying physiological condition is an open question.

August 20, 2019, Ninth Circuit Court of Appeals, Jose Valtierra v. Medtronic Inc.: After acknowledging that four other circuits have concluded that morbid obesity is not a disability unless caused by an underlying physiological condition, the Ninth Circuit did not take a stand on that issue. Instead it affirmed the trial court’s dismissal of Mr. Valtierra’s federal disability discrimination case on grounds he did not have evidence to suggest a causal connection between his obesity and his termination.

The causation standard for federal disability discrimination claims is “but for.”

August 20, 2019, Ninth Circuit Court of Appeals, Michael J. Murray, M.D. v. Mayo Clinic: In light of two recent U.S. Supreme Court decisions, the Ninth Circuit affirmed the trial court’s jury instruction for Mr. Murray’s federal disability discrimination claim that used a but for causation standard as opposed to a motivating factor standard.

Unfair Competition Law claims seeking private injunctive relief are subject to arbitration agreements.

August 14, 2019, Fourth District Court of Appeal, Daniel Clifford v. Quest Software Inc.: Mr. Clifford brought various wage and hour claims against his employer. Quest Software moved to compel arbitration. The trial court ordered the case to arbitration except Mr. Clifford’s Unfair Competition Law (UCL) claim. The court of appeal reversed after finding that a California Supreme Court decision did not bar arbitration of a UCL claim for private (as opposed to public) injunctive relief.

The change in law for awards of attorney’s fees and costs to employers in Fair Employment and Housing Act cases applies retroactively.

August 1, 2019, Fourth District Court of Appeal, Arthur Scott v. City of San Diego: Mr. Scott rejected a $7,000 settlement offer under Code of Civil Procedure section 998. After the case went to trial and a jury found in favor of San Diego, the trial court awarded the city $51,946.96 in costs even though it found that the plaintiff’s case was not frivolous. While the appeal was pending, the California Legislature amended the governing costs statute to provide that a prevailing defendant may not recover attorney’s fees and costs, notwithstanding a section 998 offer, against a plaintiff with non-frivolous claims. The court of appeal decided that this amendment clarified existing law, meaning that the change in law applies retroactively. On this basis, it reversed the trial court’s award of costs.

Posted by deanroyerlaw in Employment

July 2019 employment law decisions

On-duty meal periods subject to the 30-minute minimum requirement.

July 31, 2019, First District Court of Appeal, L’Chaim House, Inc. v. Division of Labor Standards Enforcement: Residential care home is required to provide meal periods of at least 30 minutes even when they are “on-duty” periods, i.e., the nature of the work prevents the employees from being relieved of all duty and the employer and employees agree in writing to an on-the-job paid meal period.

Anti-SLAPP motions available in discrimination or retaliation cases but not in this particular case.

July 22, 2019, Supreme Court of California, Stanley Wilson v. Cable News Network, Inc.: The anti-SLAPP statute (special motion to strike claims that arise from the defendant’s constitutionally protected activity) may be used to screen claims alleging discriminatory or retaliatory employment actions because the defendant’s adverse action is a necessary element of such claims. Mr. Wilson’s claim that his employer defamed him by privately discussing the alleged reasons for his termination with potential employers and others is not subject to the anti-SLAPP statute because the communications were not made in connection with any issue of public significance.

Employees have sufficient evidence for discrimination and harassment claims.

July 17, 2019, Third District Court of Appeal, Nancy Ortiz v. Dameron Hospital Association and Shirley Galvan v. Dameron Hospital Association: The facts were disputed whether Dameron constructively terminated Ms. Ortiz and Ms. Galvan because there was evidence that their supervisor intentionally created working conditions that would cause a reasonable person to feel compelled to resign. The facts were also disputed whether the supervisor acted with national origin discrimination motive based on evidence that the supervisor focused her criticisms on subordinates’ accents and English language skills. The facts were further disputed whether Ms. Ortiz and Ms. Galvan were subjected to unlawful harassment given the evidence of the supervisor’s criticisms of accents and English-speaking skills and references to subordinates’ ages, including calling them “too old”; and in Ms. Ortiz’s case, the additional evidence of being transferred to a unit where she had little or no experience and provided with no training, being falsely accused of sleeping on the job, and being told she would likely be fired.

Jury verdict in favor of employee in race discrimination and retaliation case affirmed.

July 17, 2019, Third District Court of Appeal, Wendell Brown v. City of Sacramento: Mr. Brown could recover for a suspension that occurred more than one year before he filed a complaint with the Department of Fair Employment and Housing (DFEH) because the suspension did not become final until a union grievance challenging it was dismissed within the one-year statute of limitations period. Mr. Brown could also recover for a transfer that had been announced but not scheduled to take effect until after he filed his DFEH complaint. Although the DFEH complaint did not refer to the specific transfer, it included general language about being forced to transfer and the DFEH investigation would have likely uncovered the specific transfer at issue.

Employer not required to reimburse its employees for purchasing slip-resistance shoes.

July 8, 2019, Third District Court of Appeal, Krista Townley v. BJ’s Restaurants, Inc.: BJ’s Restaurants has a safety policy that requires its employees to wear slip-resistance shoes, although no specific brand, style, or design is required and the policy does not prohibit the employees from wearing their shoes outside of work. The California law requiring employers to reimburse their employees for expenses incurred in the discharge of their work duties (Labor Code section 2802) does not apply because the shoes are non-uniform work clothing and generally usable in the restaurant occupation.

Posted by deanroyerlaw in Employment

June 2019 employment law decisions

Employees must be paid for all hours worked.

June 28, 2019, Ninth Circuit Court of Appeals, Isaac Rodriguez v. Nike Retail Services, Inc.: The federal “de minimus” doctrine, which precludes recovery for amounts of time that are small, irregular, or administratively difficult to record, does not apply to wage claims brought under California law.

Dismissal of whistleblower claim reversed.

June 20, 2019, Fourth District Court of Appeal, Christopher Ross v. County of Riverside: Mr. Ross, a deputy district attorney, had sufficient evidence to show that he engaged in protected activity under California’s whistleblower law (Labor Code section 1102.5) because he disclosed information to his superiors indicating the district attorney’s office would not be able to prove a particular murder case beyond a reasonable doubt and lacked probable cause to continue prosecuting the case based on a belief continued prosecution would violate the defendant’s due process rights and a prosecutor’s ethical obligations under state law.

Case sent back to trial court on issue of employee versus independent contractor status.

June 13, 2019, Fourth District Court of Appeal, Shawn Bennett v. Rancho California Water District: Administrative law judge’s finding that Mr. Bennett was an employee for purposes of retirement benefits through the California Public Employees’ Retirement System did not preclude determination of employee versus independent contractor status in Mr. Bennett’s civil action for whistleblower retaliation (Labor Code section 1102.5) because the prior determination was based on a lesser burden of proof. The common law rule for employee versus independent contractor, rather than the Labor Code section 1106 definition, applied to Mr. Bennett’s claim.

Posted by deanroyerlaw in Employment

May 2019 employment law decisions

Free speech retaliation verdict affirmed.

May 31, 2019, Ninth Circuit Court of Appeals, Doug Grieisen v. Jon Hanken: Mr. Grieisen, chief of police, spoke about a matter of public concern as a private citizen when discussing his concerns with city council members and government officials about the city’s accounting and budgeting practices under the city manager. Mr. Hanken’s communications with the media about Mr. Grieisen were adverse employment actions.

Relief for increased tax liability not available in State Personnel Board actions.

May 17, 2019, Fourth District Court of Appeal, Patrick Barber v. California State Personnel Board: Addressing an issue of first impression, the court of appeal concluded that employees pursuing actions before the California State Personnel Board cannot recover for increased tax liability resulting from a lump sum back pay award.

Government claim must be timely presented before filing a whistleblower claim against a public agency.

May 14, 2019, Second District Court of Appeal, Aurora Le Mere v. Los Angeles Unified School District: Employee could not save her whistle-blower claim under Labor Code section 1102.5 by complying with the Government Claims Act after filing suit.

California’s new independent contractor test applies retroactively.

May 2, 2019, Ninth Circuit Court of Appeals, Gerrardo Vazquez v. Jan-Pro Franchising International, Inc.: The California Supreme Court’s decision that established a new “ABC” test for independent contractors for purposes of certain wage and hour claims (Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903) applies retroactively.

Posted by deanroyerlaw in Employment

April 2019 employment law decisions

Employee’s failure to promote claim revived.

April 29, 2019, Ninth Circuit Court of Appeals, David Weil v. Citizens Telecom Services Company, LLC: The trial court erred by dismissing a failure to promote claim after excluding a statement made by an employee of the defendant employer concerning the promotion decision despite being later moved to a different role.

Unpaid wages claim by security guards with collective bargaining agreement turns on interpretation of state law.

April 25, 2019, California Supreme Court, George Melendez v. San Francisco Baseball Associates LLC: Claim for unpaid wages by security guards at San Francisco Giants’ stadium does not require interpretation of a collective bargaining agreement so the lower courts may decide the case on the merits.

Employer complies with wage statement law by listing its fictitious business name and street address not including a mail stop code.

April 10, 2019, First District Court of Appeal, Vaiula Savea v. YRC, Inc.: The court of appeal affirmed the trial court’s dismissal (on demurrer) of the employee’s case that asserted the wage statement law required listing the employer’s name registered with the California Secretary of State and an address that included the mail stop code and the ZIP+4 code.

Posted by deanroyerlaw in Employment