April and May 2020 employment law decisions

No attorney’s fees available for meal and rest break cases.

May 21, 2020, Second District Court of Appeal, Raquel Betancourt v. OS Restaurant Services, LLC: The trial court awarded Ms. Betancourt over $280,000 in attorney fees for meal and rest break violations. The court of appeal reviewed the attorney’s fees statute for actions based on nonpayment of wages and prior decisions that meal and rest break violations are not actions for nonpayment of wages. The appellate court rejected Ms. Betancourt’s contention that the case was based on a failure to pay earned wages because the claims asserted were the meal and rest violations and wage statement and waiting time penalties.

Time to present a claim under the Government Claims Act is not subject to equitable tolling or continuing violation doctrine.

May 12, 2020, Fourth District Court of Appeal, James Willis v. City of Carlsbad: The trial court struck certain actions taken by the City of Carlsbad from Mr. Willis’s complaint on grounds they were outside of the six-month period prior to Mr. Willis presenting a claim under the Government Claims Act. Mr. Willis contended that the actions should have remained in his case. The court of appeal rejected Mr. Willis’s “equitable tolling” argument because the time to file a Government Claims Act is not a statute of limitations subject to equitable tolling. The appellate court also determined that the continuing violation doctrine did not apply because Mr. Willis was on notice more than six months before he presented his Government Claims Act claim that any further efforts to end the alleged unlawful conduct would be futile in light of the City of Carlsbad’s denials of transfer and promotion.

Wrongful termination claim arising from termination for refusing an extortion attempt based on fraud.

May 6, 2020, First District Court of Appeal, John Galeotti v. International Union of Operating Engineers Local No. 3: The trial court dismissed Mr. Galeotti’s wrongful termination claim (demurrer). The court of appeal reversed after deciding that Mr. Galeotti’s allegations that his employer fired him for not succumbing to an extortion attempt (threat of termination if he did not make a $1,000 contribution to a political campaign) sufficiently describes an alleged violation of public policy (extortion laws). The appellate court also determined that Mr. Galeotti’s allegations that his employer terminated him after mispresenting that the contribution would be used for an election campaign (when it was used for personal use) implicates the public policy against defrauding a person of money.

Punitive damages award affirmed but reduced.

April 29, 2020, Fourth District Court of Appeal, Stephen Colucci v. T-Mobile USA, Inc.: A jury awarded Mr. Colucci $5 million in damages in this workplace retaliation case, including $4 million for punitive damages. The court of appeal determined that there was evidence supporting the jury’s finding that a managing agent of T-Mobile—meaning someone who exercised substantial discretionary authority over decisions that determine corporate policy—engaged in oppression or malice. The appellate court pointed to a district manager responsible for managing nine retail stores and 100 employees who had independent authority to hire or fire employees and over daily store operations. The Fourth District determined that the jury could reasonably infer from the evidence that the district manager became angered by Mr. Colucci’s complaints and decided to concoct a reason for termination knowing that Mr. Colucci was in a weak physical and mental state. Finally, the court of appeal determined that T-Mobile’s conduct warranted imposition of punitive damages but the reprehensibility of conduct was in the low to moderate range of wrongdoing. Therefore, it decided that a punitive damages award equal to 1.5 times that of the compensatory damages aware of $1,020,042 was appropriate.

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April 2020 employment law decisions

Gender discrimination verdict reversed based on trial court’s series of errors.

April 23, 2020, Second District Court of Appeal, Lauren Pinter-Brown v. The Regents of the University of California: Dr. Pinter-Brown sued The Regents for gender discrimination and a jury found in her favor and awarded $13 million in damages. The appellate court reversed because the trial court committed a series of errors that prejudiced The Regents’ right to a fair trial by an impartial judge: (1) the court delivered a presentation to the jury highlighting major figures in the civil rights movement and told the jury it was their duty to stand in the shoes of Dr. Martin Luther King; (2) the court allowed the jury to hear about and view a long list of discrimination complaints from across the entire UC system that were not connected to Dr. Pinter-Brown’s circumstances or theory of the case; (3) the court allowed the jury to learn the contents and conclusion of a report documenting racial discrimination occurring throughout the entire UCLA campus; and (4) the court allowed Dr. Pinter-Brown to resurrect a retaliation claim after the close of evidence despite having dismissed that claim prior to trial.

After-acquired evidence may be used in federal disability discrimination cases for the issue of whether the employee was qualified for their position.

April 17, 2020, Ninth Circuit Court of Appeal, Sunny Anthony v. TRAX International Corporation: Ms. Anthony sued TRAX for disability discrimination. During the course of the case, TRAX discovered that Ms. Anthony lacked a required degree for the position she held. The Ninth Circuit concluded that this “after-acquired evidence” could be used by TRAX to show that Ms. Anthony was not qualified for her position, and, therefore, not protected under the federal disability discrimination law.

Staffing agencies uninvolved in promotion decisions cannot be held liable for a failure to promote claim.

April 7, 2020, Second District Court of Appeal, Bonnie Ducksworth v. Tri-Modal Distribution Services et al.: Ms. Ducksworth and another employee, Pamela Pollock, sued Tri-Modal and two staffing agencies that supplied them to Tri-Modal for race discrimination in promotion decisions. The appellate court affirmed the dismissal of the case against the staffing agencies because they were uninvolved in Tri-Modal’s decisionmaking about whom to promote. Ms. Pollack also had a harassment claim against Tri-Modal’s executive vice president arising from promotion decisions. The Second District also affirmed the dismissal of Ms. Pollack’s case against the executive vice president because it was filed too late (statute of limitations). It determined that the statute of limitations began running when Tri-Modal told employees they have been given a promotion (and not when the promoted worker started the new work).

Federal sector employees may prove age discrimination without showing their age was the but-for cause for an adverse employment action.

April 6, 2020, U.S. Supreme Court, Babb v. Wilkie, Secretary of Veterans Affairs: The high court decided that the age discrimination law for federal-sector employees does not require a showing that age was a but-for cause of an adverse employment action. The law’s language that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age…shall be made free from any discrimination based on age” creates a more protective standard as compared to the law covering state and private sector employees. At the same time, in order to recover reinstatement, backpay, and compensatory (non-economic) damages, federal employees must satisfy the but-for cause standard.

Payment of accrued vacation time required even when there is no specific time off limit.

April 1, 2020, Second District Court of Appeal, Teresa McPherson v. EF Intercultural Foundation, Inc.: California’s Labor Code requires an employer to pay all unused, vested (accrued or earned) vacation time when an employee separates. The court of appeal decided that under the circumstances of this particular case, this requirement applied to the employer’s paid time off policy in which it did not promise its employees a specific amount of paid vacation that they would accrue or expressly tell them the paid time off was unlimited (and a limit was implied). But the Second District also stated that the requirement to pay vested vacation time does not apply to all unlimited paid time off policies.

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February and March 2020 employment law decisions

Employees must be paid for shifts for which they make themselves available to work.

March 19, 2020, Ninth Circuit Court of Appeals, Alexia Herrera v. Zumiez, Inc.: California law requires employers to provide “reporting time pay” to retail employees who report for work but are not actually provided work. Ms. Herrera filed a class action alleging that Zumiez failed to pay its employees reporting time pay for “call-in” shifts during which employees must make themselves available to work even though they may not be required to work. While this appeal was pending, a California Court of Appeal decided in a factually similar case involving “on-call” shifts that the employer had to provide reporting time pay. The Ninth Circuit determined that it would follow the decision in that case.

Employees can bring representative actions for Labor Code violations even if they settle and dismiss their individual actions for the same violations.

March 12, 2020, Justin Kim v. Reins International California, Inc.: In this case of first impression, the California Supreme Court had to determine whether an employee who settles and dismisses their individual claims for Labor Code violations loses standing to pursue a representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA). It concluded that the answer is no. The PAGA law only has two requirements for standing: the plaintiff must be someone who was (1) employed by the defendant and alleged violator, and (2) suffered (along with other employees) one or more of the alleged violations.

Employees must name their employer in a complaint with the Department of Fair Employment and Housing prior to filing suit.

March 10, 2020, Second District Court of Appeal, Judy Alexander et al. v. Community Hospital of Long Beach: The three nurses who brought this case previously filed complaints with the Department of Fair Employment Housing (DFEH), naming Community Hospital of Long Beach and two individuals as potential defendants; and later, Memorial Counseling Associates Medical Group (MCA), which  was founded by the hospital to supply physicians for patients in the hospital’s mental health ward. They did not name Memorial Psychiatric Health Services (MPHS), which was founded by the hospital to run the ward. The nurses then filed suit, naming the hospital and MCA as defendants; and later, MPHS. The court of appeal decided that the nurses’ failure to name MPHS in the DFEH complaint precluded them from pursuing claims against MPHS in the civil case.

Prior rate of pay cannot be used to justify paying women less than men who perform the same work.

February 27, 2020, Ninth Circuit Court of Appeals, Aileen Rizo v. Jim Yovino: The federal Equal Pay Act allows for women to be paid less than men who perform the same work if the pay difference is based on a factor other than sex. The Ninth Circuit concluded that Ms. Rizo’s prior rate of pay is not a factor other than sex that justified her lesser pay. Only job-related factors are allowed.

Posted by deanroyerlaw in Employment

February 2020 employment law decisions

Louisiana law applies to wage and hour claims by employees who perform some work off the coast of California.

February 18, 2020, Second District Court of Appeal, Gulf Offshore Logistics, LLC v. Superior Court of Ventura County: Former crew members of a ship that provides maintenance services to oil platforms off the California coast alleged violations of California’s wage and hour laws. The appellate court decided that Louisiana, not California, law applied because the employees lived outside of California, worked for a Louisiana-based employer, performed some work inside California’s territorial waters (on the ship) but otherwise had no significant contact with California, and the management and administration of the employment relationship was performed in Louisiana.

Employers must pay for employee time spent waiting and undergoing exit searches of personal items brought to work.

February 13, 2020, Supreme Court of California, Amanda Frlekin v. Apple Inc.: The Ninth Circuit Court of Appeals requested that the Supreme Court of California decide whether the time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work for personal convenience by employees must be paid. The court’s answer was yes because the employees were under Apple’s control during the searches: the searches are mandatory and conducted on Apple property, and Apple requires its employees to perform supervised tasks while waiting for and during the searches.

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December 2019 and January 2020 employment law decisions

The time to file an administrative discrimination claim can be extended by the filing of a workers’ compensation claim; and the filing deadline period starts at the end of ongoing discriminatory conduct or with a constructive termination.

January 28, 2020, First District Court of Appeal, Jay Brome v. California Highway Patrol: Mr. Brome’s claims for harassment and sexual orientation discrimination were not barred by the statute of limitations because the one-year period to file with the Department of Fair Employment and Housing was tolled while a workers’ compensation claim was pending; a jury could conclude that there was harassment that continued to within the limitations period extended by the tolling; and a jury could conclude that Mr. Brome was constructively terminated when he resigned less than one year before he filed with the Department.

Employees’ do not prevail on sexual harassment claims.

January 22, 2020, Second District Court of Appeal, Tamika Schmidt v. Superior Court: Court verdict finding no sexual harassment against two court employees is affirmed because the court properly applied the applicable law and did not exhibit bias amounting to a due process violation.

Unionized federal employees may only bring discrimination claims through either their union’s grievance procedure or their agency’s Equal Employment Opportunity office.

January 16, 2020, Ninth Circuit Court of Appeals, Garry Heimrich v. United States Department of the Army: Mr. Heimrich could not pursue a wrongful termination claim before his agency’s Equal Employment Opportunity office because he previously raised the same matter in a union grievance: in both instances the underlying action was premised on a termination motivated by race, retaliation, and disability.

Employers cannot use acronyms in wage statements and PAGA claims need only cite the applicable Labor Code section.

December 26, 2019, Third District Court of Appeal, Mohammed Noori v. Countrywide Payroll & HR Solutions, Inc.: Mr. Noori asserted a valid claim for failure to provide a proper itemized wage statement because the employer’s name was indicated only by an acronym; and a valid claim under the Private Attorneys General Act of 2004 (PAGA) by citing the Labor Code section (as opposed to the specific subdivision) that was allegedly violated; but his failure to maintain wage statements claim failed because the employer’s failure to state its name in the statements was not an actionable injury.

State defendants cannot avoid liability for claims by removing cases to federal court.

December 23, 2019, Ninth Circuit Court of Appeals, Donald Walden, Jr. v. State of Nevada: A State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including the Fair Labor Standards Act claim in this case.

Fourth District claims no adverse action based on rejection of accommodation requests despite statutory and case law authority to the contrary; and affirms dismissal of interactive process and reasonable accommodation claims on grounds the employee did not identify his particular disability despite case law emphasizing the discussion of limitations resulting from the disability.

December 19, 2019, Fourth District Court of Appeal, John Doe v. Department of Corrections and Rehabilitation: Dismissal (summary judgment) of Mr. Doe’s disability discrimination, retaliation, and harassment claims was affirmed because criticism of Mr. Doe’s work, ordering a wellness check when Mr. Doe was out sick, suspecting Mr. Doe of bringing a cell phone to work, and assigning Mr. Doe as primary crisis person on the day he had a union meeting did not amount to an adverse employment action. The Fourth District further affirmed the dismissal on grounds that no court had ever held a failure to accommodate a disability is an adverse employment action, despite a 2002 case (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344) that did and the statute specifically providing that failure to accommodate is an adverse action (Government Code section 12940(m)(1)). The dismissal of Mr. Doe’s interactive process and accommodation claims was affirmed on grounds Mr. Doe was responsible for the breakdown in the accommodation discussions because he did not identify his disability, despite case law providing that the focus of such discussions is on the employee’s limitations, not specific disabling conditions.

No punitive damages against public entities available under whistleblower law.

December 17, 2019, Fifth District Court of Appeal, Visalia Unified School District v. Superior Court: Award of punitive damages to employee who sued Visalia Unified School District under the whistleblower statute covering public school employees (Education Code section 44110 et seq.) was reversed based on public entity immunity to punitive damage awards.

Verdict in favor of employee of religious organization upheld under federal, but not state, law.

December 12, 2019, Sixth District Court of Appeal, Jeremiah Mathews v. Happy Valley Conference Center, Inc.: Verdict in favor of Mr. Mathews upheld with respect to his retaliation claim under federal law (Title VII) because the jury properly concluded that Happy Valley and the Community of Church, of which Happy Valley was an affiliate, were joint employers collectively employing more than 15 employees based on common ownership, closely intertwined management, interrelated operations, and evidence showing Mr. Mathews’ termination was influenced or even dictated by the Church. But the verdict in favor of Mr. Mathews with respect to his retaliation claim under state law (Fair Employment and Housing Act) was reversed because religious associations or non-profit corporations (other than hospitals and schools) are completely exempt from FEHA claims and Happy Valley did not waive this exemption.

Posted by deanroyerlaw in Employment