PAGA

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

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

August and September 2019 employment law decisions

Retaliation claim can be proved with evidence concerning a comparator who need only be similarly situated to the plaintiff employee in all relevant respects.

September 26, 2019, First District Court of Appeal, Rashmi Gupta v. Trustees of the California State University: The court of appeal affirmed a jury verdict finding San Francisco State University retaliated against Dr. Gupta in denying her tenure and terminating her employment. The trial court did not err by allowing Dr. Gupta to present evidence of a comparator professor because the other professor was similarly situated in all relevant respects and Dr. Gupta did not have to show that she was clearly superior to him.

Premium wages required for on-duty meal periods unless there is written agreement to such meal periods.

September 26, 2019, Second District Court of Appeal, Gustavo Naranjo v. Spectrum Security Services, Inc.: The court of appeal determined that at-will, on-call, hourly, nonexempt employees who are paid for on-duty meal periods are also entitled to premium wages (one hour of wages for each off-duty meal period not provided) if the employer does not have a written agreement that includes an on-duty meal period revocation clause.

Employees entitled to penalties and attorney’s fees in whistleblower retaliation case.

September 25, 2019, Second District Court of Appeal, Todd Hawkins v. City of Los Angeles: A jury found in favor of Mr. Hawkins and his co-plaintiff Hyung Kim who claimed retaliation for whistleblowing. The court of appeal affirmed the jury verdict and the trial court’s award of a Private Attorney General Act (PAGA) penalty because the plaintiffs’ pre-lawsuit notice referred to their employer’s conduct directed toward them and other employees that also impacted the public. The court of appeal also affirmed the trial court’s award of attorney’s fees under PAGA, and under a law concerning enforcement of an important right affecting the public interest (Code of Civil Procedure section 1021.5) because the case concerned claims that the plaintiffs were retaliated against for reporting pressure on hearing examiners to change decisions concerning parking citations.

Common law failure to hire claim is not available.

September 24, 2019, Third District Court of Appeal, Wilfert Williams v. Sacramento River Cats Baseball Club, LLC: The court of appeal determined that Mr. Williams’s failure to hire claim is not cognizable under a common law doctrine (Tameny claim) because the doctrine requires the prior existence of an employment relationship that gives rise to an employer’s duty to not violate fundamental public policy with respect to its employees.

Employee’s whistleblower case survives anti-SLAPP motion.

August 29, 2019, Second District Court of Appeal, James Jeffra v. California State Lottery: The court of appeal disagreed with the trial court’s denial of an anti-SLAPP motion on grounds Mr. Jeffra’s whistleblower case arises from non-protected retaliation. The Second District applied a recent California Supreme Court decision that whether a case arises from protected activity depends on the elements of the claim that need to be proven. In this retaliation case, Mr. Jeffra had to prove he was subjected to an adverse employment action, which he claimed was an investigation of alleged wrongdoing (followed by administrative leave and forced retirement). Nevertheless, the court of appeal affirmed the denial of the motion because Mr. Jeffra presented sufficient evidence to establish a probability of prevailing on the merits.

Whether morbid obesity is a disability under federal law in the absence of an underlying physiological condition is an open question.

August 20, 2019, Ninth Circuit Court of Appeals, Jose Valtierra v. Medtronic Inc.: After acknowledging that four other circuits have concluded that morbid obesity is not a disability unless caused by an underlying physiological condition, the Ninth Circuit did not take a stand on that issue. Instead it affirmed the trial court’s dismissal of Mr. Valtierra’s federal disability discrimination case on grounds he did not have evidence to suggest a causal connection between his obesity and his termination.

The causation standard for federal disability discrimination claims is “but for.”

August 20, 2019, Ninth Circuit Court of Appeals, Michael J. Murray, M.D. v. Mayo Clinic: In light of two recent U.S. Supreme Court decisions, the Ninth Circuit affirmed the trial court’s jury instruction for Mr. Murray’s federal disability discrimination claim that used a but for causation standard as opposed to a motivating factor standard.

Unfair Competition Law claims seeking private injunctive relief are subject to arbitration agreements.

August 14, 2019, Fourth District Court of Appeal, Daniel Clifford v. Quest Software Inc.: Mr. Clifford brought various wage and hour claims against his employer. Quest Software moved to compel arbitration. The trial court ordered the case to arbitration except Mr. Clifford’s Unfair Competition Law (UCL) claim. The court of appeal reversed after finding that a California Supreme Court decision did not bar arbitration of a UCL claim for private (as opposed to public) injunctive relief.

The change in law for awards of attorney’s fees and costs to employers in Fair Employment and Housing Act cases applies retroactively.

August 1, 2019, Fourth District Court of Appeal, Arthur Scott v. City of San Diego: Mr. Scott rejected a $7,000 settlement offer under Code of Civil Procedure section 998. After the case went to trial and a jury found in favor of San Diego, the trial court awarded the city $51,946.96 in costs even though it found that the plaintiff’s case was not frivolous. While the appeal was pending, the California Legislature amended the governing costs statute to provide that a prevailing defendant may not recover attorney’s fees and costs, notwithstanding a section 998 offer, against a plaintiff with non-frivolous claims. The court of appeal decided that this amendment clarified existing law, meaning that the change in law applies retroactively. On this basis, it reversed the trial court’s award of costs.

Posted by deanroyerlaw in Employment

March 2019 employment law decisions

A case with one representative claim cannot be forced into arbitration.

March 28, 2019, Second District Court of Appeal, Arthur Zakaryan v. The Men’s Wearhouse, Inc.: a case based on one representative (Private Attorney General Act of 2004) claim cannot be split and sent to two different fora, i.e. one part remains in court and one part goes to arbitration.

Religious organizations are exempt from all claims under federal employment discrimination law (Title VII).

March 18, 2019, Ninth Circuit Court of Appeals, Ann Garcia v. Salvation Army: the Salvation Army is exempt from the federal employment discrimination law (Title VII) under the religious organization exception for hiring and firing decisions as well as retaliation and hostile work environment claims.

Ministerial exception does not bar preschool teachers at Jewish synagogue from pursuing claims against their employer.

March 8, 2019, Second District Court of Appeal, Julie Su v. Stephen S. Wise Temple: preschool teachers at a Jewish synagogue may pursue wage and hour claims against their employer because the “ministerial” exception does not apply.

Posted by deanroyerlaw in Employment

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