June and July 2017 employment law decisions

Employee during pendency of work visa approval

June 13, 2017, California Court of Appeal, First Appellate District, Ming-Hsiang Kao v. Joy Holiday et al.: Mr. Kao was entitled to overtime pay, penalties for Joy Holiday’s failure to provide wage statements, and a waiting time penalty for the company’s failure to pay all wages due at termination. Mr. Kao was an employee, not a “guest” pending approval of a work visa, because Joy Holiday paid Mr. Kao substantial salary and Mr. Kao performed tasks beneficial to the company. Mr. Kao was also a non-exempt employee (i.e., entitled to overtime pay) because while he was an office manager he was paid less than the equivalent of two times the minimum wage for 40 hours per week and then was demoted to non-manager status.

Age discrimination covers political subdivisions with fewer than 20 employees

June 19, 2017, Ninth Circuit Court of Appeals, John Guido and Dennis Rankin v. Mount Lemmon Fire District: the federal Age Discrimination in Employment Act applies to a political subdivision of a state that employs fewer than 20 employees. The ADEA defines three distinct categories of covered employers: (1) a “person” that employs 20 or more employees, where “person” does not include a political subdivision; (2) an agent of a “person;” and (3) States and political subdivisions of States. The Sixth, Seventh, Eighth, and Tenth Circuits previously decided otherwise.

Anti-gay statements outside of the termination decision enough to get case to trial

June 21, 2017, California Court of Appeal, Second Appellate District, Joseph Husman v. Toyota Motor Credit Corporation: Mr. Husman had sufficient evidence that a substantial motivating factor for his termination was stereotyping related to his sexual orientation. There was a perception he was “too gay” as shown by statements made outside the termination decision: second-line supervisor observed at various times that Mr. Husman had made “a very clear statement” about his sexual orientation and should cut his hair, as well as ridiculing him for wearing a scarf as an accessory when it was not cold outside.

Individuals liable for retaliation under Fair Labor Standards Act

June 22, 2017, Ninth Circuit Court of Appeals, Jose Arnulfo Arias v. Anthony Raimondo: the Fair Labor Standards Act retaliation provision applies to any person, including an individual who is not an employer. In this case, after Mr. Arias filed a case against his employer for overtime and meal and rest break violation, the employer’s attorney enlisted the services of U.S. Immigration and Customs Enforcement (“ICE”) to take Mr. Arias into custody at a scheduled deposition and then to remove him from the United States; and attempted to block Mr. Arias’s California Rural Legal Assistance attorney from representing him. The attorney could be liable because the FLSA makes it unlawful for any “person,” which includes a legal representative, to terminate or discriminate against an employee who files a FLSA complaint; and defines “employer” to include “persons” who act in the interest of the employer in relation to an employee.

Attorney’s fees for unpaid wage claims must be requested at the initiation of the case

June 29, 2017, California Court of Appeal, Second Appellate District, Michael Shames v. Utility Consumers’ Action Network: employee could not recover attorney’s fees after prevailing at trial on an unpaid wages claim because he did not request the fees at the initiation of the case. California Labor Code 218.5 provides for attorney’s fees to the prevailing party if she “requests attorney’s fees and costs upon the initiation of the action.” Such a request was not included in either Mr. Shames’s initial complaint (first court filing) or an amended complaint.

Mortgage underwriters are non-exempt employees entitled to overtime

July 5, 2017, Ninth Circuit Court of Appeals, Gina McKeen-Chaplin v. Provident Savings Bank, FSB: Mortgage underwriters are entitled to overtime pay. The administrative employee exemption under federal law did not apply because the underwriters’ primary job duty did not relate to their employer bank’s management or general business operations. The Ninth Circuit followed the Sixth Circuit’s analysis (the underwriters do not decide if the bank should take on risk, but instead assess whether, given the guidelines provided to them from above, the particular loan at issue falls within the range of risk the Bank has determined it is willing to take), and rejected the Second Circuit (which decided that underwriters perform administrative work because they assist in the running and servicing of the bank’s business by making decisions about when the Bank should take on certain kinds of credit risk).

Right to obtain other employees’ contact information in representative action

July 13, 2017, California Supreme Court, Michael Williams v. The Superior Court of Los Angeles County: Employee with a representative case (Labor Code Private Attorneys General Act) was entitled to contact information of other employees that he sought to have represented in the case. The standard established for class actions—contact information is discoverable without any showing of good cause—applies to PAGA cases.

Posted by deanroyerlaw