October and November 2019 employment law decisions

Federal employee’s case that named the wrong defendant is still timely.

November 14, 2019, Ninth Circuit Court of Appeals, Alisha Silbaugh v. Elaine Chao: Ms. Silbaugh filed her case concerning her employment with the Federal Aviation Administration within the time limits (statue of limitations) but named the wrong defendant. After the limitations period ran, the FAA moved to dismiss the action on grounds the case had to be filed against the head of the executive agency to which the FAA belongs. Ms. Silbaugh responded by filing an amended complaint that named the Secretary of Transportation (Ms. Chao) as the defendant. The district court denied FAA’s motion to dismiss as moot. Ms. Chao filed a motion to dismiss on grounds the amended complaint was not timely because it did not “relate back” to the original complaint. The district court agreed. On appeal, the Ninth Circuit reviewed a federal rule of civil procedure (15(c)) that provides that an amendment relates back to the original complaint when a United States officer or agency is added as a defendant if the original complaint and summons was served on the United States attorney, the Attorney General, or the officer or agency within a 90-day period. Because Ms. Silbaugh timely served the United States attorney and Attorney General her amendment to re-name the defendant related back. Accordingly, the Ninth Circuit reversed the dismissal.

Disability discrimination need not be based on animus or ill will.

November 13, 2019, Second District Court of Appeal, John Glynn v. Superior Court of Los Angeles County: Mr. Glynn sued his employer for disability discrimination. The case arose from a temporary benefits staffer mistakenly thinking Mr. Glynn had transitioned from short term disability to long term disability and was unable to work with or without an accommodation. On that basis, the staffer terminated Mr. Glynn. For months the employer ignored Mr. Glynn’s efforts to correct the misunderstanding. The issue before the court of appeal was whether this constituted direct evidence of disability discrimination. Under the direct evidence method of proof the employee must show that his employer knew of his disability and the disability was a substantial motivating reason for an adverse employment action such as termination. The court of appeal reviewed a prior appellate decision in which the court concluded that animus or ill will was not required to prove discriminatory intent; rather, the disability discrimination law protects employees from erroneous or mistaken beliefs about the employee’s disability. In this case, the termination letter stated that Mr. Glynn’s employment ended due to his inability to return to work with or without an accommodation. As a result, the court of appeal concluded that Mr. Glynn’s case could not be dismissed (summary judgment).

Each payment of an alleged discriminatory disability check triggers a new statute of limitations period.

October 31, 2019, First District Court of Appeal, Joyce Carroll v. City and County of San Francisco: Ms. Carroll sued her former employer as a class representative claiming that San Francisco discriminated based on age by providing reduced disability retirement benefits to older employees who took disability retirement after working for the City for less than 22.22 years. A required administrative charge with the Department of Fair Employment and Housing was filed more than 17 years after Ms. Carroll retired. The trial court dismissed the case (demurrer) on grounds the DFEH charge was filed too late (statute of limitations). The court of appeal decided that the one-year limitations period started each time Ms. Carroll received a discriminatory disability payment. Therefore, the dismissal was reversed.

Employer’s service charge may be considered a tip that must be distributed to employees.

October 31, 2019, First District Court of Appeal, Lauren O’Grady v. Merchant Exchange Productions, Inc.: Ms. Grady sued her employer as a class representative asserting a failure to distribute tips (gratuities). Merchant Exchange Productions added a mandatory “service charge” to the contract for every banquet facility it provided and distributed only some of the charge to managerial employees who did not serve food and beverages at the banquet. Ms. Grady alleged that she and other employees who served food and beverages were entitled to the entire service charge as a tip as required by California’s Labor Code (section 351). The court of appeal decided that a service charge can meet the Labor Code’s definition of a tip and that Ms. O’Grady’s complaint sufficiently alleged a violation of law.

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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.

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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.

Posted by deanroyerlaw in Employment

December 2017 and January 2018 employment law decisions and laws

Representation action requires notice of other employees affected by the employer’s conduct.

January 22, 2018, Second District Court of Appeal, Hamid Khan v. Dunn-Edwards Corporation: Mr. Khan had a dispute with his employer regarding his final paycheck with respect to its timing and the statement that came with it. He filed a case on behalf of himself and other employees who had been similarly treated. While the lawsuit was pending, Mr. Khan gave written notice to Dunn-Edwards Corporation and the California Labor and Workforce Development Agency regarding “my claims against my former employer….” The notice did not reference any other employee. Mr. Khan filed an amended complaint to add a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA). The trial court dismissed Mr. Khan’s case for, among other reasons, failing to give proper notice of the PAGA claim. The Second District concluded that the notice was deficient because it was limited to Mr. Khan’s individual claims, and, therefore, failed to give the Labor and Workforce Development Agency adequate opportunity to decide whether to investigate a representative action.

No violation of constitutional rights based on conditional language about an employee.

January 3, 2018, Ninth Circuit Court of Appeals, Ronald Kramer v. Mary Cullinan: Mr. Kramer sued the former President of Southern Oregon University alleging violations of his federal constitutional rights based on information released in connection with his termination. The trial court denied Dr. Cullinan’s request to dismiss the case. On appeal, the Ninth Circuit address the questions of whether Dr. Cullinan violated a constitutional right and whether that right was clearly established at the time of the alleged misconduct (qualified immunity defense). The Fourteenth Amendment protects liberty interests, including the right to a name-clearing hearing when the government publicly discloses stigmatizing information in the course of terminating a person’s employment. The appeals court concluded that a letter stating that insurance coverage would not be available if Mr. Kramer had engaged in bad faith or willful misconduct was not stigmatizing. The language was conditional and did not accuse him of actually engaging in misconduct.

January 1, 2018: San Francisco’s Lactation in the Workplace Ordinance became effective. It requires employers to provide employees breaks and a location for lactation and to have a policy regarding lactation in the workplace that specifies a process by which an employee will make a request for accommodation.

January 1, 2018: As of this date, covered employers with 20 or more employees are required to comply with San Francisco’s Paid Parental Leave Ordinance. This ordinance requires employers to provide supplemental compensation to employees receiving California Paid Family Leave to bond with a new child.

Verdict in favor of employee in disability discrimination and reasonable accommodation case upheld.

December 28, 2017, Ninth Circuit Court of Appeals, Tracy Dunlap v. Liberty Natural Products, Inc.: Ms. Dunlap alleged that her employer failed to accommodate her disability and engaged in disability discrimination. A jury found in favor of Ms. Dunlap for some of her claims. The trial court denied Liberty Natural Products’ request for a judgment in its favor. On appeal, Liberty Natural Products contended that the trial court gave erroneous jury instructions for the failure to accommodate claim by including elements from the discrimination claim. The Ninth Circuit decided that the trial court should have given separate instructions for each claim, but that this error was not enough to reverse the jury’s verdict. The undisputed evidence showed that Liberty Natural Products’ duty to engage in the interactive process regarding an accommodation was triggered.

Enough evidence for disability discrimination based on obesity.

December 21, 2017, First District Court of Appeal, Ketryn Cornell v. Berkeley Tennis Club: Ms. Cornell sued her employer for disability discrimination and other claims. The trial court dismissed her case before trial (summary judgment). On appeal, the First District determined that Berkeley Tennis Club failed to demonstrate that Ms. Cornell could not establish that her obesity is a disability under California law, which requires a showing of a physiological cause. The appeals court reversed the dismissal of the discrimination claim because there was evidence upon which a jury could decide the Club’s non-discriminatory explanation for the termination was false and a participant in the decision to terminate Ms. Cornell made comments suggesting discriminatory animus.

No attorney fees despite finding of disability discrimination.

December 19, 2017, Fourth District Court of Appeal, William Bustos v. Global P.E.T., Inc.: Mr. Bustos brought a disability discrimination action against his employers. A jury found that Mr. Bustos’s (perceived) physical condition was a substantial motivating reason for his termination but returned verdicts in favor of the employers. Mr. Bustos sought an award of attorney fees, which was denied. On appeal, the Fourth District reviewed the rule that a court has discretion to award attorney fees to an employee where a jury decides there was discrimination but that the employer would have taken the same adverse employment action absent discrimination or the discrimination did not result in any compensable injury. The appellate court concluded that the trial court reasonably decided that because Mr. Bustos did not recover any relief he was not a prevailing party eligible for attorney fees.

Posted by deanroyerlaw in Employment

August and September 2017 employment law decisions

Whistle-blower claim based on University policies

September 26, 2017, Fourth District Court of Appeal, Leah Levi v. The Regents of the University of California: Dr. Levi sued the Regents for a number of claims, including a whistle-blower retaliation claim. The trial court dismissed the entire case by summary judgment. The Court of Appeal reversed with respect to the retaliation claim along with a due process claim. Regarding the retaliation claim, Dr. Levi engaged in protected activity by filing or participated in complaints regarding conflicts of interest related to other Regents’ employees, modified policies favoring another Regents employee, and retaliation for being a whistle-blower, all of which were covered by Regents policies that have the force and effect of California law.

Itemized wage statement claim for civil penalties does not require a knowing or intentional violation

September 26, 2017, First District Court of Appeal, Eduardo Lopez v. Friant & Associates, LLC: Mr. Lopez filed a case for civil penalties under the Labor Code Private Attorneys General Act of 2004 for his employer’s failure to include the last four digits of employee Social Security numbers on itemized wage statements. The trial court dismissed the case on grounds the undisputed evidence showed the employer’s omission was not knowing or intentional. The Court of Appeal disagreed. The knowing or intentional standard is in a section (226(e)(1)) that also specifies penalties. But the penalties in section 226(e)(1) are “statutory” in nature. Mr. Lopez’s case was for “civil” penalties, which are specified in Labor Code section 2699(f). Therefore, the knowing or intentional standard did not apply in the PAGA case.

Discrimination must be based on the employee’s race

September 14, 2017, Second District Court of Appeal, George Diego v. City of Los Angeles: Mr. Diego and another police officer sued their employer for discrimination they alleged following their involvement in a fatal shooting. The case went to trial and a jury awarded the officers nearly $4 million. The City of Los Angeles appealed. The appellate court reversed the jury verdict. The officer’s legal theory was that they were treated less favorably because of their race (Latino) and the race of the victim (African-American). They relied on evidence of another shooting incident involving a white officer and Latino victim. They argued to the jury that any decision based on race by the City could demonstrate unlawful employment discrimination, and there were no jury instructions regarding consideration of the victim’s race. But a discrimination claim requires a showing that the employer’s challenged decision was substantially motivated by the employee’s race. The appellate court found that the officers did not have evidence to show that they were treated less favorably because of their race (as opposed to the race of the victim).

Marital status discrimination does not include marriage to a particular person

September 5, 2017, First District Court of Appeal, Orlando Nakai v. Friendship House Association of American Indians, Inc.: Mr. Nakai was terminated by Friendship House’s CEO, who also happened to be his mother-in-law, after his wife informed the CEO that Mr. Nakai had a gun and was angry at Friendship House employees and she had obtained a restraining order. Mr. Nakai filed a case for marital status discrimination and failure to conduct a reasonable investigation prior to termination. The trial court dismissed the case on grounds Mr. Nakai had insufficient evidence for a jury trial (summary judgment). The Court of Appeal agreed. Mr. Nakai’s theory was that he was terminated because he was the spouse of the employee who reported him and the son-in-law of the CEO. While marital status discrimination prohibits decisions based on an employee’s status as unwed or single or the granting of employment benefits to married employees only, it cannot be based on the status of being married to a particular person. Mr. Nakai’s case was based on the latter. As for the failure to investigate claim, Mr. Nakai was an at-will employee. As such, he had no right to a pre-termination investigation.

Statute of limitations to file with the Department of Fair Employment and Housing

August 29, 2017, Second District Court of Appeal, Guillermo Aviles-Rodriguez v. Los Angeles Community College District: The California Supreme Court previously decided (Romano v. Rockwell International, Inc. (1996) 14 Cal.4th 479) that an employee alleging that a discriminatory act led to the termination of his or her employment has until one year from the termination date to file an administrative claim. That case involved an at-will employee with advanced notice of the effective termination date. In this case, the employee was a professor who was denied tenure, filed a grievance regarding the denial, and then was terminated based on the denial of tenure. The Court of Appeal concluded that the rule established in Romano also applied in this case, i.e., the one-year statute of limitations began on the date of the termination, not the notice of denial of tenure.

Posted by deanroyerlaw in Employment