September and October 2018 employment law decisions

An individual is not an independent contractor unless the employer shows that he was engaged in an independent business.

October 22, 2018, Fourth District Court of Appeal, Jesus Garcia v. Border Transportation Group, LLC: Mr. Garcia filed a lawsuit against his employer, for whom he worked as a taxi driver, and its owner and another employee. Some of his claims were based on Industrial Welfare Commission wage orders (unpaid wages, failure to pay minimum wage, failure to provide meal and rest breaks, and failure to furnish accurate pay statements) and others were not. The trial court dismissed the case (summary judgment) after deciding that Mr. Garcia was an independent contractor, not an employee. On appeal, the Fourth District applied the recent California Supreme Court decision (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903) to review the dismissal of the claims based on the wage orders. The employer had to demonstrate that Mr. Garcia was customarily engaged in an independently established trade, occupation, or business apart from his work for Border Transportation Group. In other words, that Mr. Garcia independently made the decision to go into business for himself. In addition, the employer could not satisfy this showing with evidence that Mr. Garcia could have engaged in an independent business; rather, that Mr. Garcia was engaged in an independent business. Because Border Transportation Group did not present any evidence that Mr. Garcia in fact provided services for other entities independently of his relationship with them, the Fourth District reversed the dismissal as to the claims based on wage orders. As for the other claims, the Dynamex decision did not apply and the appellate court affirmed the dismissal.

Individuals may be liable for civil penalties for causing violations of overtime or minimum wage laws.

September 28, 2018, Fourth District Court of Appeal, Marco Atempa v. Paolo Pedrazzani: The trial court issued civil penalties against Mr. Pedrazzani for causing violations of California’s overtime and minimum wage laws. On appeal, the issue was whether any individual other than the corporate employer can be liable for such civil penalties where there is no finding that corporate laws have been misused or abused for a wrongful or inequitable purpose (alter ego). The Fourth District reviewed the overtime and minimum wage laws, both of which authorize civil penalties against an employer or other person acting on behalf of the employer who violates or causes to be violated the laws. The appellate court rejected Mr. Pedrazzani’s contention that he cannot be liable for civil penalties because he was merely an individual officer of the corporate employer. The language of the laws are unambiguous that individual liability exists.

Employee can sue religious employer for breach of contract.

September 25, 2018, Third District Court of Appeal, Sarah Sumner v. Simpson University: Ms. Sumner was the dean of a theological seminary who had a written employment agreement. After Simpson University terminated her, she sued for breach of contract and other tort claims. The trial court dismissed the case (summary judgment) on grounds Ms. Sumner’s employment was within the ministerial exception. The United States Supreme Court had previously decided that this exception, which derives from the First Amendment right to free exercise of religion, bars a minister’s employment discrimination suit based the church’s decision to fire her (Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC (2012) 565 U.S. 171) but did not address whether it applies to a breach of contract or tort claim.  The California appellate court first determined that Simpson University is a religious organization. Next is found that Ms. Sumner was a “minister,” which includes nonordained employees with duties functionally equivalent to ministers. The Third District then turned to the question of whether the ministerial exception applies to a contract claim. It decided that it did not because in reviewing the claim the court would not be required to review Ms. Sumner’s religious qualification or performance as a religious leader. That is because the University’s stated reason for termination was insubordination, not religious reasons. Finally, the appellate court concluded that Ms. Sumner’s tort claims (defamation, invasion of privacy, intentional infliction of emotional distress) were barred by the ministerial exception because they were based on the University’s reasons for and process of terminating Ms. Sumner’s employment. Although the reasons were not strictly religious, the First Amendment protects the act of a decision rather than a motivation behind it.

Employee regarded as having a disability.

September 17, 2018, Ninth Circuit Court of Appeals, Herman Nunies v. HIE Holdings, Inc.: Mr. Nunies’s request for a transfer to a part-time, less-physical warehouse job was all set to go through until he told his employer about the reason for his request—a shoulder injury. After HIE terminated him, Mr. Nunies sued under the Americans for Disabilities Act claiming the termination was because of the shoulder injury. The trial court dismissed the case (summary judgment). On appeal, the Ninth Circuit considered whether the trial court properly interpreted the expanded definition of being disabled, which includes being regarded as having a physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. The appellate court determined that the trial court improperly relied on pre-expansion decisions that required a showing that the employer subjectively believed that the employee was substantially limited in a major life activity.

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July and August 2018 employment law decisions

Employer subject to waiting time penalty for failing to immediately correct an employee’s accrued vacation pay check.

August 1, 2018, First District Court of Appeal, Taryn Nishiki v. Danko Meredith, APC: Ms. Nishiki filed a complaint with the California Labor Commissioner seeking vacation wages, rest period premiums, and waiting time penalties. The Labor Commissioner awarded Ms. Nishiki waiting time penalties in the amount of $4,250. Her former employer appealed the award to court, which affirmed the Labor Commissioner’s award. On appeal, Danko Meredith contended that the waiting time penalties were unwarranted because the unpaid amount of accrued vacation pay resulted from a discrepancy in the numerical amount as compared to the amount spelled out in words in a check that was not “willful.” The court agreed after finding the discrepancy was the result of a clerical error. But the First District also considered the effect of Danko Meredith’s delay in sending a corrected check after being informed by Ms. Nishiki that she could not deposit the original check. The appeals court found that Danko Meredith violated its statutory obligation to pay wages promptly by not immediately correcting the clerical error by either stopping payment on the original check and issuing a new check for the correct amount or by sending an additional check for the amount owed—instead it waited nine days to issue a new check. As a result, Ms. Nishiki was entitled to a waiting time penalty for nine days.

Non-payment of small amounts of compensable time not allowed under California law.

July 26, 2018, Supreme Court of California, Douglas Troester v. Starbucks Corporation: Upon a request by the United States Court of Appeals for the Ninth Circuit, the Supreme Court of California agreed to answer the following question: Does the federal Fair Labor Standards Act’s (FLSA) de minimis doctrine (excuse the payment of wages for small amounts of otherwise compensable time upon a showing that the bits of time are administratively difficult to record) apply to claims for unpaid wages under California Labor Code sections 510, 1194, and 1197? The California Supreme Court first determined whether California’s wage and hour statutes or regulations have adopted the de minimis doctrine found in the FLSA. Its answer was no. Next, the high court decided whether the de minimis principle nevertheless applies to wage and hour claims. It concluded that the relevant wage order and statutes do not permit application of the de minimis rule on the facts given, where the employer required the employee to work “off the clock” several minutes per shift. It did not decide whether there are circumstances where compensable time is so minute or irregular that it is unreasonable to expect the time to be recorded.

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July 2018 employment law decisions and laws

Sufficient evidence to uphold verdict finding disability harassment.

July 9, 2018, Fourth District Court of Appeal, Augustine Caldera v. Department of Corrections and Rehabilitation: Mr. Caldera sued his employer, the Department, for disability harassment, failure to prevent harassment, and related claims. The case went to trial and the jury found in favor of Mr. Caldera awarding him $500,000. On appeal, the Department argued that there was insufficient evidence the harassment met the standard of being severe or pervasive. The appellate court reviewed the harassment standard, which is harassing conduct that is sufficiently severe or pervasive to alter the conditions of the employee’s employment and create an abusive working environment. The jury must consider the totality of circumstances, including the nature of the conduct, how often and over what period it occurred, the circumstances under which it occurred, and whether it was physically threatening or humiliating. Next, the Fourth District court concluded that the jury could find the conduct to be severe because Mr. Caldera described the conduct—employees, including a supervisor, mocking and mimicking his stutter—as demeaning, embarrassing, harmful, and hurtful; and this conduct caused Mr. Caldera to experience psychological disorders. The appellate court also found that the jury could decide the conduct was pervasive because it happened up to 15 times over a two-year period and was regarded as part of the culture at the prison.

The San Francisco minimum wage increases.

Effective July 1, 2018 the minimum wage in San Francisco is $15 per hour.

San Francisco’s Consideration of Salary History (Parity in Pay) Ordinance becomes effective.

Effective July 1, 2018, this ordinance bans employers from considering current or past salary of an applicant in determining whether to hire the applicant or what salary to offer the applicant. It also prohibits employers from (1) asking applicants about their current or past salary or (2) disclosing a current or former employee’s salary history without that employee’s authorization unless the salary history is publicly available.

Posted by deanroyerlaw in Employment

June 2018 employment law decisions

Wage payments based on rounding off hours worked to the nearest quarter hour approved.

June 25, 2018, Second District Court of Appeal, AHMC Healthcare v. Superior Court: Employees of AHMC Healthcare sued their employer for failure to pay wages and other claims. California law requires employers to pay their employees for all time the employees are at work and subject to the employers’ control. The issue was whether an employer’s use of a payroll system that automatically rounded employee time up or down to the nearest quarter violates the law. The Second District reviewed federal courts interpreting federal law on the issue, which have approved computation of worktime by rounding to the nearest quarter of an hour provided that the rounding system will not result, over a period of time, in failure to compensate employees for all time actually worked. It then noted that California’s wage laws are patterned on federal laws and California courts may look to federal court decisions for guidance. The appellate court pointed to two recent federal decisions where a slight majority of employees losing time over a defined period was not sufficient to invalidate an otherwise neutral rounding practice. The Second District concluded that the payroll system did not violate the law because it was neutral on its face (i.e., applied to all employees) and in practice (at one location, a minority of employees lost time but AHMC compensated employees as a whole for 1,378 hours not worked; at a second location, a slight majority of employees lost time but AHMC compensated employees as a whole for 3,875 hours not worked).

Trial court erred by excluding testimony regarding text messages and “me too” evidence in harassment case.

June 21, 2018, Fourth District Court of Appeal, Natasha Meeks v. Autozone, Inc.: Ms. Meeks sued Autozone and one of its employees for sexual harassment. The case went to trial and the jury found in favor of the defendants. On appeal, Ms. Meeks challenged rulings by the trial court excluding evidence from the trial. One ruling concerned text messages from the alleged harasser sent to Ms. Meeks that were of a sexual nature. Because neither Ms. Meeks nor the alleged harasser had possession of the messages, the trial court excluded testimony at trial regarding the specific content of the messages, including words and pictures. The Fourth District rejected the trial court’s justification for its ruling on grounds of fairness because Ms. Meeks’s memory of the content of the messages was not speculation. Furthermore, the alleged harasser could dispute Ms. Meeks’s testimony regarding the specific content by testifying based on his memory. Finally, evidence of the words and pictures was not subject to the hearsay rule because it would not be offered for the truth of the content, but rather to show that the alleged harasser sent the messages. A second ruling excluded evidence concerning sexual harassment of other employees by the alleged harasser (“me to” evidence). The Fourth District concluded that the trial court’s ruling reflected a misunderstanding of the law which allows for admission of this type of evidence.

Administrative decision to uphold termination precludes civil case for discrimination and harassment.

June 21, 2018, Fourth District Court of Appeal, Carol Wassmann v. South Orange County Community College District: Ms. Wassmann sued the District for discrimination (age and race) and harassment. The trial court dismissed the case (summary judgment) on grounds an administrative proceeding provided by the District that upheld Ms. Wassmann’s termination precluded the civil case. On appeal, the Fourth District agreed that the discrimination and harassment claims were barred by the adverse administrative decision. The proceeding was sufficiently judicial in character (e.g., a hearing before an administrative law judge) and Ms. Wassmann could have objected to her proposed termination on grounds of discrimination. Because Ms. Wassman was unsuccessful in getting the administrative decision reversed (writ proceeding) she could not pursue her claims in court.

Dismissal of discrimination, harassment, and retaliation case upheld.

June 11, 2018, Ninth District Court of Appeals, Patricia Campbell v. State of Hawaii Department of Education: Ms. Campbell worked as a high school teacher. She sued her employer claiming discriminatory treatment, hostile work environment, and retaliation for complaining of harassment. The trial court dismissed the case (summary judgment). On appeal, the Ninth Circuit affirmed the dismissal of the discrimination claim on grounds there was no evidence that she was subjected to an adverse action. Ms. Campbell pointed to the Department’s loss of a performance evaluation but she did not identify any evidence to show that the loss could have materially affected the terms or conditions of her employment. In addition, the appellate court rejected Ms. Campbell’s assertion that the Department’s decision to investigate her was an adverse action because the Department allowed her to continue to teach without any changes both during and after the investigation despite findings of misconduct. Furthermore, the Ninth Circuit concluded that the Department’s denial of Ms. Campbell’s request to transfer to another school was not an adverse action because the evidence did not support a finding that she had a right to a transfer because she failed to go through the proper procedures. Finally, the court of appeals affirmed the dismissal of the discrimination claim on grounds that Ms. Campbell did not present any evidence to show that similarly-situated employees were treated more favorably. As for the hostile work environment claim, the Ninth Circuit affirmed the dismissal because the evidence showed the Department took prompt corrective measures regarding the alleged student conduct directed at Ms. Campbell by investigating Ms. Campbell’s complaints and disciplining the students it found to have engaged in misconduct. With respect to the retaliation claim, the appellate court concluded that the investigation could be an adverse action under the broader standard for retaliation claims. Nevertheless, it affirmed the dismissal on grounds there was no evidence to show that the Department’s stated reason for the investigation—receipt of multiple allegations of misconduct—was a pretext for retaliation.

Release of worker’s compensation claim did not also release discrimination claims.

June 8, 2018, Fourth District Court of Appeal, Adrian Camacho v. Target Corporation: Mr. Camacho filed a case against his employer for discrimination, harassment, failure to prevent harassment and discrimination, retaliation, and related other claims. Mr. Camacho also filed a claim for worker’s compensation benefits. The trial court dismissed the discrimination case on grounds language in a compromise and release agreement form used to settle the worker’s compensation action constituted a release of the discrimination claims. On appeal, the Fourth District reviewed the established rule that discrimination claims are not subject to the worker’s compensation system and may be pursued as civil actions. Target contended that language in an addendum to the form releasing “any other claims for reimbursement, benefits, damages, or relief of whatever nature” resulted in Mr. Camacho releasing his discrimination claims. The appellate court disagreed. There was no language in the form or addendum referring to claims outside of the worker’s compensation system. When the form and addendum were considered as a whole, the language upon which Target relied did not satisfy the “clear and non-technical language” requirement for releasing claims beyond worker’s compensation.

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April and May 2018 employment law decisions

Employees may pursue representative claims as long as they are personally affected by at least one of the alleged violations.

May 23, 2018, Sixth District Court of Appeal, Forrest Huff v. Securitas Security Services USA, Inc.: Mr. Huff filed representative claims against his former employer under the Private Attorneys General Act of 2004 (PAGA) alleging violations concerning the pay practices of Securitas. The trial court concluded that Mr. Huff could pursue all of the claims even if he could not prove that he was personally affected by one of the violations. PAGA claims allow private parties to sue for civil penalties that previously were only recoverable by a state agency (Labor Commissioner). When employees bring representative actions under PAGA, they do as a proxy or agent of the agency, not other employees. On appeal, Securitas contended that Mr. Huff could only pursue PAGA claims for violations that personally affected him. The appellate court reviewed the law, which states that an “aggrieved employee” who may file a PAGA claim is “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Labor Code section 2699(c).) The Sixth District concluded that this means a PAGA claim may be brought by a person employed by the alleged violator and affected by at least one of the violations alleged in the case.

Representative claims for pay statement violations do not require proof of injury or a knowing and intentional violation.

May 22, 2018, Third District Court of Appeal, Terri Raines v. Coastal Pacific Food Distributors, Inc.: Ms. Rains sued her former employer alleging, among other claims, a representative claim under PAGA concerning pay statement violations. The trial court dismissed the case (summary judgment) after deciding that Ms. Rains had not suffered an injury as required for an individual claim because the missing hourly overtime rate could be determined from the pay statement by simple math. On appeal, the Third District reviewed the pay statement law, which requires a number of items in pay statements including all applicable hourly rates in effect during the pay period. The parties agreed that Ms. Raines’s statements did not show the overtime hourly rate. The appellate court noted that there are three different remedies for a pay statement violation: actual damages or statutory ($50 per pay period) penalties, injunctive relief, and civil penalties ($250 per pay period for an initial violation under PAGA). The Third District determined that a civil penalty was available not just when no pay statement is provided but also when the pay statement violates the law in some way. Previous decisions by federal courts had come to opposing conclusions as to whether a party with a PAGA claim concerning pay statement violations must prove injury. In addition, the First District Court of Appeal had recently decided, in Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, that there was no injury or knowing and intentional requirement for a PAGA claim. The Fourth District agreed with the First District.

UC whistleblowers may file suit after adverse administrative decisions.

May 14, 2018, Fourth District Court of Appeal, Carl Taswell v. The Regents of the University of California: Dr. Taswell sued the Regents alleging he was retaliated against for whistleblowing activities regarding patient safety during his employment by UC Irvine. The trial court dismissed the case (summary judgment) after deciding that Dr. Taswell’s claims were barred by a University decision denying his grievance challenging his termination and his failure to overturn that decision (by writ of mandamus) before filing suit. The Fourth District reviewed the general principle that an administrative decision that is of sufficient judicial character is binding and precludes a subsequently filed lawsuit unless it is reversed by writ. It also reviewed two prior California Supreme Court decisions that established the rule that civil servants and California State University employees could file whistleblower retaliation claims in court after receiving adverse administrative decisions concerning the same claims. The appellate court then turned to the section of the whistleblower retaliation law that applies to UC employees (Government Code section 8547.10), which has the same language that applies to CSU employees (authorizing a civil suit if the employer has not satisfactorily addressed the administrative complaint). The Fourth District concluded that the same interpretation applies to UC employees: a court action is permitted if the employer does not address the complaint to the employee’s satisfaction, e.g., finding against him. The court of appeal also reviewed Dr. Taswell’s claims under separate whistleblower laws (Labor Code section 1102.5 and Government Code section 12653). It determined that although Dr. Taswell was required to “exhaust administrative remedies” (by filing the grievance) the language of the laws clearly reflected a legislative intent to permit a court action. As a result, Dr. Taswell could pursue his claims under those laws as well without overturning the adverse grievance decision.

No failure to engage in interactive process claim under federal law.

May 11, 2018, Ninth Circuit Court of Appeals, Danny Snap v. Burlington Northern Santa Fe Railway Company: Mr. Snapp sued his former employer alleging a failure to accommodate under the federal Americans with Disabilities Act. The jury found in favor of Burlington. Mr. Snapp appealed. One issue was whether the trial court improperly rejected a proposed jury instruction that would have imposed liability on Burlington for failing to engage in the interactive process regardless of the availability of a reasonable accommodation. The Ninth Circuit reviewed its prior decision, Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, in which it decided that if an employer receives notice of an employee’s need for an accommodation and fails to engage in the interactive process (employer and employee come to understand the employee’s abilities and limitations, the employer’s needs for various positions, and a possible middle ground for accommodating the employee), the employer is liable if a reasonable accommodation would have been possible. The appellate court explained this means there is no separate claim for failing to engage in the interactive process (unlike under California law); rather, the claim is for discrimination in denying an available and reasonable accommodation. Previous decisions established that at the summary judgment stage the employer has the burden to prove the unavailability of a reasonable accommodation. The Ninth Circuit rejected Mr. Snapp’s contention that the summary judgment standard applied at trial.

No due process claim for probationary employee.

May 10, 2018, Ninth Circuit Court of Appeals, Richard A. Palm v. Los Angeles Department of Water and Power: Mr. Palm filed suit alleging his employer terminated his employment in a probationary position without due process of law in violation of the Fourteenth Amendment. The trial court dismissed his case (motion to dismiss) without leave to amend on grounds Mr. Palm could not state a due process claim because he lacked a property interest in his position. On appeal, the Ninth Circuit recited the standard that Mr. Palm had to demonstrate a constitutionally protected property interest in his position to pursue a due process claim. The appellate court reviewed the Los Angeles Charter and Civil Service Rules. During probation Los Angeles could terminate Mr. Palm based on a subjective finding that he had demonstrated unsatisfactory performance. In a previous decision, the Ninth Circuit concluded that an employer’s ability to determine on a purely subjective basis whether a probationary employee had performed satisfactorily undercuts any expectation of continued employment. Also, during probation Mr. Palm had no right of appeal of a termination to a Board of Civil Service Commissioners. The Ninth Circuit decided that probationary positions held by city employees are not vested with a protected property interest.

Failure to accommodate and engage in interactive process where the employer terminated the probationary employee while on leave on grounds the employee’s performance had not been reviewed.

May 3, 2018, Fourth District Court of Appeal, Marisa Hernandez v. Rancho Santiago Community College District: Ms. Hernandez sued the District under California law for failure to make reasonable accommodation for her medical condition and failure to engage in an interactive process. Ms. Hernandez was hired in 2013 with a one-year probationary period and performance reviews due at three, seven, and 11 months; after 12 months she would become a permanent employee. Her performance was not evaluated after three or seven months. Eight months into the probationary period, Ms. Hernandez went on temporary disability leave to have surgery for an injured suffered during a previous employment with the District. She was scheduled to return to work around the 12-month anniversary of her hiring date. The District terminated her while she was on leave because her performance had not been reviewed. The case went to trial where the court found in Ms. Hernandez’s favor and awarded her $723,746 in damages. On appeal, the District asserted that it had to terminate Ms. Hernandez’s employment during her probationary period because if it had not she would have become a permanent employee without having had her performance evaluated. The Fourth District agreed that the District accommodated Ms. Hernandez by giving her time off for the surgery but it was not reasonable when it included the consequence that she would lose if her job if she took leave. The appellate court rejected the District’s use of the one-year probationary period as justification for the termination. The District could have deducted the leave time from Ms. Hernandez’s probationary period so that she received a full 12-month period of time in which the District could have evaluated her performance. The Fourth District also affirmed the trial court’s finding of a violation of the good faith interactive process requirement because Ms. Hernandez was told she could not be fired for taking leave but was fired when she took the leave.

Broad employee standard established for wage order violations.

April 30, 2018, Supreme Court of California, Dynamex Operations West, Inc. v. Charles Lee: Two delivery drivers sued Dynamex on their own behalf and on behalf of a class of similarly situated drivers alleging misclassification as independent contractors rather than employees, which led to a violation of a California wage order (which imposes obligations relating to the minimum wages, maximum hours, and basic working conditions such as minimally required meal and rest breaks). The issue was which standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders: the multifactor standard set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, or the “to suffer or permit to work” standard described in Martinez v. Combs (2010) 49 Cal.4th 35. The California Supreme Court concluded that the latter was the standard and that the suffer or permit to work definition must be interpreted broadly to treat as employees all workers who would ordinarily be viewed as working in the hiring business. In determining whether a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to the “ABC” test. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Time to file federal discrimination claims starts when the administrative agency actually provides the right-to-sue notice.

April 27, 2018, Ninth Circuit Court of Appeals, Taylor Scott v. Gino Morena Enterprises, LLC: Ms. Scott sued her former employer alleging sexual harassment and retaliation. The trial court dismissed the case (summary judgment) after deciding that Ms. Scott’s claims were time-barred. Ms. Scott had to file a charge with a state or federal agency (or both) before filing suit. Ms. Scott filed a charge with California Department of Fair Employment and Housing (DFEH) on November 13, 2013, received a right to sue from the DFEH on November 25, 2013, and filed suit on November 20, 2014 under California law. The DFEH “dual-filed” the charge with the federal Equal Employment Opportunity Commission (EEOC) on November 13, 2013 and the EEOC did not issue its right-to-sue notice until June 3, 2015. On June 17, 2015, the trial court allowed Ms. Scott to amend her complaint to assert federal claims. The issue was whether the 90-day period to file a case begins when Ms. Scott received the right-to-sue notice from the EEOC or 180 days after the charge was filed with the EEOC regardless of when the EEOC issued the notice. The appellate court determined that while the law governing the issue contemplates that the EEOC gives notice sometime after 180 days after the charge is filed, the 90-day period begins when the EEOC actually gives the notice.

Posted by deanroyerlaw in Employment