February 2019 employment law decisions

Professor cannot pursue defamation claim against his employer but his retaliation claim survives.

February 28, 2019, Sixth District Court of Appeal, Jason Laker v. Board of Trustees of the California State University: under the anti-SLAPP law, a professor’s defamation claim against his public university employer is based on protected activity (statements made in the course of an internal investigation of another professor), but his retaliation claim to the extent it is based on investigations into the professor’s conduct is not.

Plaintiffs in representative action cannot take the full 25 percent of civil penalties.

February 27, 2019, Second District Court of Appeal, David Moorer v. Noble L.A. Events, Inc.: the 25 percent of the civil penalties for a representative action (Private Attorney General Act of 2004) that are allocated to the “aggrieved” employees must be distributed in a pro rata amount to all of those employees.

Compensation of employees determined by California’s minimum wage rather than Long Beach as a charter city.

February 25, 2019, Second District Court of Appeal, Wendy Marquez v. City of Long Beach: Long Beach must comply with California’s minimum wage requirements notwithstanding its status as a charter city.

Representative action not subject to arbitration agreement.

February 25, 2019, Fourth District Court of Appeal, Mark Correia v. NB Baker Electric, Inc.: the California Supreme Court decision that representative actions (Private Attorney General Act of 2004) cannot be forced into arbitration is still good law.

Labor contractor who obtained temporary workers for grower company may be held liable under federal employment discrimination law.

February 6, 2019, Ninth Circuit Court of Appeals, U.S. Equal Employment Opportunity Commission v. Global Horizons, Inc.: applying the common-law agency test, which has the extent of control over the detail of work as the principal guidepost, the Ninth Circuit affirmed the trial court’s decision that the contractor and growers were joint employers for all purposes.

Sales clerks entitled to pay for on-call reporting time.

February 4, 2019, Second District Court of Appeal, Skylar Ward v. Tilly’s, Inc.: on-call employees in the mercantile industry who contacted their employer two hours before on-call shifts are reporting for work and are owed reporting time pay.

Employment discrimination case by drummer for Eddie Money arises from Mr. Money’s right of free speech as to which musicians performed with him.

February 1, 2019, Second District Court of Appeal, Glenn Symmonds v. Edward Joseph Mahoney: the Second District decided that the anti-SLAPP law applies to a musician’s claims concerning his termination.

Posted by deanroyerlaw in Employment

November 2018-January 2019 employment law decisions

Whistleblower case based on reporting employer’s alleged noncompliance with use tax law.

January 23, 2019, First District Court of Appeal, Says Siri v. Sutter Home Winery, Inc.: Ms. Siri’s case cannot be resolved by summary judgment.

Independent contractor or employee?

January 11, 2019, First District Court of Appeal, Nichelle Duffey v. Tender Heart Home Care Agency, LLC: to determine Ms. Duffey’s status, the recent California Supreme Court decision (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903) indicates the standard described in the law she sued under (Domestic Worker Bill of Rights) must be used.

Recovery for unpaid overtime claim?

January 4, 2019, First District Court of Appeal, Terry Furry v. East Bay Publishing, LLC: despite Mr. Furry’s imprecise evidence of his hours works, it was error to completely deny him relief because the employer failed to keep accurate records of his hours.

Whether judgment in representative action concerning alleged meal break violations will stand.

December 20, 2018, Fourth District Court of Appeal, Kileigh Carrington v. Starbucks Corporation: Ms. Carrington was an “aggrieved” employee who could bring the action because the claims included employees who, like Ms. Carrington, worked more than five hours without being provided a timely meal break or paid a meal period premium.

Catholic elementary school exempt from employment discrimination claim?

December 17, 2018, Ninth Circuit Court of Appeals, Kristen Biel v. St. James School: Ms. Biel can pursue her Americans with Disabilities Act claim against the Catholic elementary school that terminated her employment.

Can health care employees waive a second meal period?

December 10, 2018, California Supreme Court, Jazmina Gerard v. Orange Coast Memorial Medical Center: A wage order of the Industrial Welfare Commission permitting health care employees to waive a second meal period even if they have worked more than 12 hours does not violate California’s Labor Code.

Does rejection of a statutory settlement offer allow a prevailing employer to recover its costs?

November 14, 2018, Second District Court of Appeal, Felix Huerta v. Kava Holdings, Inc.: Settlement offers under Code of Civil Procedure 998 have no application to costs and attorneys fees in Fair Employment and Housing Act claims unless the lawsuit is found to be frivolous, including litigation that predates January 1, 2019.

Age Discrimination in Employment Act application to state or municipal agencies.

November 6, 2018, U.S. Supreme Court, Mount Lemmon Fire District v. Guido: The ADEA applies to state and municipal agencies regardless of the number of employees.

Does federal case decision in favor of employee preclude state case to recover more than back pay?

November 6, 2018, First District Court of Appeal, Victor Guerrero v. California Department of Corrections and Rehabilitation: Mr. Guerrero may pursue his claims for damages in state court.

Americans with Disabilities Act regarded as disabled definition.

November 1, 2018 (amended), Ninth Circuit Court of Appeals, Herman Nunies v. HIE Holdings, Inc.: A reasonable jury could conclude that HIE terminated Mr. Nunies because of its knowledge of Mr. Nunies’ shoulder injury.

Posted by deanroyerlaw in Employment

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.

Posted by deanroyerlaw in Employment

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