Reasonable accommodation

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

April and May 2018 employment law decisions

Employees may pursue representative claims as long as they are personally affected by at least one of the alleged violations.

May 23, 2018, Sixth District Court of Appeal, Forrest Huff v. Securitas Security Services USA, Inc.: Mr. Huff filed representative claims against his former employer under the Private Attorneys General Act of 2004 (PAGA) alleging violations concerning the pay practices of Securitas. The trial court concluded that Mr. Huff could pursue all of the claims even if he could not prove that he was personally affected by one of the violations. PAGA claims allow private parties to sue for civil penalties that previously were only recoverable by a state agency (Labor Commissioner). When employees bring representative actions under PAGA, they do as a proxy or agent of the agency, not other employees. On appeal, Securitas contended that Mr. Huff could only pursue PAGA claims for violations that personally affected him. The appellate court reviewed the law, which states that an “aggrieved employee” who may file a PAGA claim is “any person who was employed by the alleged violator and against whom one or more of the alleged violations was committed.” (Labor Code section 2699(c).) The Sixth District concluded that this means a PAGA claim may be brought by a person employed by the alleged violator and affected by at least one of the violations alleged in the case.

Representative claims for pay statement violations do not require proof of injury or a knowing and intentional violation.

May 22, 2018, Third District Court of Appeal, Terri Raines v. Coastal Pacific Food Distributors, Inc.: Ms. Rains sued her former employer alleging, among other claims, a representative claim under PAGA concerning pay statement violations. The trial court dismissed the case (summary judgment) after deciding that Ms. Rains had not suffered an injury as required for an individual claim because the missing hourly overtime rate could be determined from the pay statement by simple math. On appeal, the Third District reviewed the pay statement law, which requires a number of items in pay statements including all applicable hourly rates in effect during the pay period. The parties agreed that Ms. Raines’s statements did not show the overtime hourly rate. The appellate court noted that there are three different remedies for a pay statement violation: actual damages or statutory ($50 per pay period) penalties, injunctive relief, and civil penalties ($250 per pay period for an initial violation under PAGA). The Third District determined that a civil penalty was available not just when no pay statement is provided but also when the pay statement violates the law in some way. Previous decisions by federal courts had come to opposing conclusions as to whether a party with a PAGA claim concerning pay statement violations must prove injury. In addition, the First District Court of Appeal had recently decided, in Lopez v. Friant & Associates, LLC (2017) 15 Cal.App.5th 773, that there was no injury or knowing and intentional requirement for a PAGA claim. The Fourth District agreed with the First District.

UC whistleblowers may file suit after adverse administrative decisions.

May 14, 2018, Fourth District Court of Appeal, Carl Taswell v. The Regents of the University of California: Dr. Taswell sued the Regents alleging he was retaliated against for whistleblowing activities regarding patient safety during his employment by UC Irvine. The trial court dismissed the case (summary judgment) after deciding that Dr. Taswell’s claims were barred by a University decision denying his grievance challenging his termination and his failure to overturn that decision (by writ of mandamus) before filing suit. The Fourth District reviewed the general principle that an administrative decision that is of sufficient judicial character is binding and precludes a subsequently filed lawsuit unless it is reversed by writ. It also reviewed two prior California Supreme Court decisions that established the rule that civil servants and California State University employees could file whistleblower retaliation claims in court after receiving adverse administrative decisions concerning the same claims. The appellate court then turned to the section of the whistleblower retaliation law that applies to UC employees (Government Code section 8547.10), which has the same language that applies to CSU employees (authorizing a civil suit if the employer has not satisfactorily addressed the administrative complaint). The Fourth District concluded that the same interpretation applies to UC employees: a court action is permitted if the employer does not address the complaint to the employee’s satisfaction, e.g., finding against him. The court of appeal also reviewed Dr. Taswell’s claims under separate whistleblower laws (Labor Code section 1102.5 and Government Code section 12653). It determined that although Dr. Taswell was required to “exhaust administrative remedies” (by filing the grievance) the language of the laws clearly reflected a legislative intent to permit a court action. As a result, Dr. Taswell could pursue his claims under those laws as well without overturning the adverse grievance decision.

No failure to engage in interactive process claim under federal law.

May 11, 2018, Ninth Circuit Court of Appeals, Danny Snap v. Burlington Northern Santa Fe Railway Company: Mr. Snapp sued his former employer alleging a failure to accommodate under the federal Americans with Disabilities Act. The jury found in favor of Burlington. Mr. Snapp appealed. One issue was whether the trial court improperly rejected a proposed jury instruction that would have imposed liability on Burlington for failing to engage in the interactive process regardless of the availability of a reasonable accommodation. The Ninth Circuit reviewed its prior decision, Barnett v. U.S. Air, Inc. (9th Cir. 2000) 228 F.3d 1105, in which it decided that if an employer receives notice of an employee’s need for an accommodation and fails to engage in the interactive process (employer and employee come to understand the employee’s abilities and limitations, the employer’s needs for various positions, and a possible middle ground for accommodating the employee), the employer is liable if a reasonable accommodation would have been possible. The appellate court explained this means there is no separate claim for failing to engage in the interactive process (unlike under California law); rather, the claim is for discrimination in denying an available and reasonable accommodation. Previous decisions established that at the summary judgment stage the employer has the burden to prove the unavailability of a reasonable accommodation. The Ninth Circuit rejected Mr. Snapp’s contention that the summary judgment standard applied at trial.

No due process claim for probationary employee.

May 10, 2018, Ninth Circuit Court of Appeals, Richard A. Palm v. Los Angeles Department of Water and Power: Mr. Palm filed suit alleging his employer terminated his employment in a probationary position without due process of law in violation of the Fourteenth Amendment. The trial court dismissed his case (motion to dismiss) without leave to amend on grounds Mr. Palm could not state a due process claim because he lacked a property interest in his position. On appeal, the Ninth Circuit recited the standard that Mr. Palm had to demonstrate a constitutionally protected property interest in his position to pursue a due process claim. The appellate court reviewed the Los Angeles Charter and Civil Service Rules. During probation Los Angeles could terminate Mr. Palm based on a subjective finding that he had demonstrated unsatisfactory performance. In a previous decision, the Ninth Circuit concluded that an employer’s ability to determine on a purely subjective basis whether a probationary employee had performed satisfactorily undercuts any expectation of continued employment. Also, during probation Mr. Palm had no right of appeal of a termination to a Board of Civil Service Commissioners. The Ninth Circuit decided that probationary positions held by city employees are not vested with a protected property interest.

Failure to accommodate and engage in interactive process where the employer terminated the probationary employee while on leave on grounds the employee’s performance had not been reviewed.

May 3, 2018, Fourth District Court of Appeal, Marisa Hernandez v. Rancho Santiago Community College District: Ms. Hernandez sued the District under California law for failure to make reasonable accommodation for her medical condition and failure to engage in an interactive process. Ms. Hernandez was hired in 2013 with a one-year probationary period and performance reviews due at three, seven, and 11 months; after 12 months she would become a permanent employee. Her performance was not evaluated after three or seven months. Eight months into the probationary period, Ms. Hernandez went on temporary disability leave to have surgery for an injured suffered during a previous employment with the District. She was scheduled to return to work around the 12-month anniversary of her hiring date. The District terminated her while she was on leave because her performance had not been reviewed. The case went to trial where the court found in Ms. Hernandez’s favor and awarded her $723,746 in damages. On appeal, the District asserted that it had to terminate Ms. Hernandez’s employment during her probationary period because if it had not she would have become a permanent employee without having had her performance evaluated. The Fourth District agreed that the District accommodated Ms. Hernandez by giving her time off for the surgery but it was not reasonable when it included the consequence that she would lose if her job if she took leave. The appellate court rejected the District’s use of the one-year probationary period as justification for the termination. The District could have deducted the leave time from Ms. Hernandez’s probationary period so that she received a full 12-month period of time in which the District could have evaluated her performance. The Fourth District also affirmed the trial court’s finding of a violation of the good faith interactive process requirement because Ms. Hernandez was told she could not be fired for taking leave but was fired when she took the leave.

Broad employee standard established for wage order violations.

April 30, 2018, Supreme Court of California, Dynamex Operations West, Inc. v. Charles Lee: Two delivery drivers sued Dynamex on their own behalf and on behalf of a class of similarly situated drivers alleging misclassification as independent contractors rather than employees, which led to a violation of a California wage order (which imposes obligations relating to the minimum wages, maximum hours, and basic working conditions such as minimally required meal and rest breaks). The issue was which standard applies, under California law, in determining whether workers should be classified as employees or as independent contractors for purposes of California wage orders: the multifactor standard set forth in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, or the “to suffer or permit to work” standard described in Martinez v. Combs (2010) 49 Cal.4th 35. The California Supreme Court concluded that the latter was the standard and that the suffer or permit to work definition must be interpreted broadly to treat as employees all workers who would ordinarily be viewed as working in the hiring business. In determining whether a worker is properly considered the type of independent contractor to whom the wage order does not apply, it is appropriate to look to the “ABC” test. Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

Time to file federal discrimination claims starts when the administrative agency actually provides the right-to-sue notice.

April 27, 2018, Ninth Circuit Court of Appeals, Taylor Scott v. Gino Morena Enterprises, LLC: Ms. Scott sued her former employer alleging sexual harassment and retaliation. The trial court dismissed the case (summary judgment) after deciding that Ms. Scott’s claims were time-barred. Ms. Scott had to file a charge with a state or federal agency (or both) before filing suit. Ms. Scott filed a charge with California Department of Fair Employment and Housing (DFEH) on November 13, 2013, received a right to sue from the DFEH on November 25, 2013, and filed suit on November 20, 2014 under California law. The DFEH “dual-filed” the charge with the federal Equal Employment Opportunity Commission (EEOC) on November 13, 2013 and the EEOC did not issue its right-to-sue notice until June 3, 2015. On June 17, 2015, the trial court allowed Ms. Scott to amend her complaint to assert federal claims. The issue was whether the 90-day period to file a case begins when Ms. Scott received the right-to-sue notice from the EEOC or 180 days after the charge was filed with the EEOC regardless of when the EEOC issued the notice. The appellate court determined that while the law governing the issue contemplates that the EEOC gives notice sometime after 180 days after the charge is filed, the 90-day period begins when the EEOC actually gives the notice.

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

July and August 2017 employment law decisions

Disability discrimination

August 25, 2017, Ninth Circuit Court of Appeals, Antonio Alamillo v. BNSF Railway Company: Mr. Alamillo sued BNSF Railway Company for disability discrimination and failure to provide a reasonable accommodation. The Ninth Circuit decided that Mr. Alamillo could not establish a “prima facie” case of discrimination because BNSF did not know that Mr. Alamillo was disabled when the decision to initiate disciplinary proceedings was made, and Mr. Alamillo conceded that BNSF disregarded his disability when it decided to terminate him. The appellate court also concluded that there was no reasonable accommodation claim because BNSF provided Mr. Alamillo with a “constant work schedule” and precluding BNSF from terminating Mr. Alamillo for prior misconduct is not a reasonable accommodation.

Age discrimination

August 16, 2017, Ninth Circuit Court of Appeals, Charles Merrick v. Hilton Worldwide, Inc.: Mr. Merrick sued Hilton Worldwide, Inc. for age discrimination. The Ninth Circuit Court of Appeals concluded that Mr. Merrick had a “prima facie” case of discrimination because he was sixty years old when he was permanently laid off, his termination was not based on his performance, and his duties were outsourced or assumed by other employees. The appellate court also determined that Hilton had non-discriminatory explanations for the layoff. Mr. Merrick did not dispute the explanations, but claimed he could prove discrimination because Hilton did not offer to transfer him, mischaracterized his responsibilities and performance, and failed to comply with its layoff policy. The Ninth Circuit found that a position Mr. Merrick pointed to was not available and Hilton provided a list of open positions, the record did not support the mischaracterization claim, and the deviation from the layoff guidelines did not constitute specific and substantial evidence of a discriminatory motive.

Hours worked question

August 16, 2017, Ninth Circuit Court of Appeals, Amanda Frlekin v. Apple, Inc.: The Ninth Circuit certified the following question to California Supreme Court: Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?

Anti-SLAPP motion and discrimination

August 16, 2017, Second District Court of Appeal, Dioka Okorie v. Los Angeles Unified School District: Mr. Okorie sued the Los Angeles Unified School District alleging, among other things, discrimination, harassment, and retaliation. In response, the District filed a special motion to strike the complaint (“anti-SLAPP motion”), which the trial court granted. The court of appeal affirmed. The Second District determined that Mr. Okorie’s case was distinguishable from the recent Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 decision, which decided that a discrimination claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability. The wrong in Park was the university’s decision to deny the plaintiff tenure, but Mr. Okorie complained of a wide array of adverse employment actions, with the bulk of them being statements or communicative conduct made by District personnel. Furthermore, Mr. Okorie did not allege that the primary source of the alleged discrimination was his reassignment from his classroom to his home or his subsequent reassignment from his home to ESC, the so-called teacher’s jail. Instead, the gravamen of Mr. Okorie’s theory is discrimination via humiliation, which is meaningless outside the context of the protected speech to which anti-SLAPP protection applies.

Costs of suit

August 15, 2017, Fourth District Court of Appeal, Aleksei Sviridov v. City of San Diego: Mr. Sviridov sued the City of San Diego over his terminations. After three appeals, San Diego was awarded over $90,000 in costs. Mr. Sviridov challenged the award based on the rule that an employer may not recover its costs of suit in a Fair Employment and Housing Act or Public Safety Officers Procedural Bill of Rights Act case unless the court determines it to be frivolous. The court of appeal disagreed because San Diego had made three settlement offers under Code of Civil Procedure section 998, which Mr. Sviridov rejected. The Fourth District reasoned that a blanket application of the FEHA or POBRA costs rule where there is a section 998 offer would erode the public policy of encouraging settlement in such cases.

Retaliation and disability discrimination

August 8, 2017, Fourth District Court of Appeal, Melony Light v. California Department of Parks and Recreation: Ms. Light sued the California Department of Parks and Recreation for retaliation and disability discrimination. The trial court dismissed the retaliation claim on grounds there was no adverse employment action. The Fourth District reversed on grounds there was evidence that would support a finding of an adverse action: Ms. Light was moved to a different office, was subjected to verbal and physical attack during a confrontation, was told she would no longer work at the Department when her out-of-class assignment was over, had a training offer for a position rescinded, was later rejected for promotion to that position, and had her scheduled hours reduced to zero. The appellate court also determined there was direct evidence of retaliatory intent based on a supervisor’s statements that if Ms. Light did not follow orders she would be moved to a different workplace and her work at the District would end. As for the disability claim, the Fourth District affirmed the dismissal because there was no evidence the Department knew of Ms. Light’s disabilities before it took adverse action, only vague references to workplace stress.

One day’s rest in seven

August 3, 2017, Ninth Circuit Court of Appeals, Christopher Mendoza v. Nordstrom, Inc.: Mr. Mendoza on behalf of himself and other Nordstrom employees sued Nordstrom under the California law that requires one day’s rest from work in seven. (Labor Code sections 551 and 552.) An exception applies when the employee works less than six hours. The trial court ruled in favor of Nordstrom on grounds that although Mr. Mendoza worked seven consecutive days over two work weeks on three separate occasions, he worked less than six hours on some, but not all, of those days. The Ninth Circuit affirmed the decision, but for different reasons. The California Supreme Court had decided that the seven-day period is only for each workweek and the exception only applies when the employee works less than six hours on all seven days. It was undisputed that Mr. Mendoza did not work seven consecutive days within any one work week.

Civil penalty versus unpaid wages

August 2, 2017, Fifth District Court of Appeal, Richard Esparza v. KS Industries, L.P.: KS Industries, L.P. sought to compel arbitration of Mr. Esparza’s claims, on behalf of himself and other employees, for civil penalties and wages arising from minimum wage and overtime violations, meal and rest break violations, timely payment of wages, failure to provide pay statements, and failure to reimburse business expenses. Mr. Esparza relied on Labor Code sections 558 and 1197.1 to contend that recovery of the unpaid wages was a form of civil penalty, which could not be forced into arbitration. The Fifth Circuit disagreed, pointing out that section 558 provides that the employee recovers 100 percent of the underpaid wages, whereas a civil penalty action (Labor Code Private Attorney’s General Act) requires 75 percent of the recovery to go to the State of California.

Hostile work environment

July 31, 2017, Ninth Circuit Court of Appeals, Cynthia Fuller v. Idaho Department of Corrections: Ms. Fuller sued the Idaho Department of Corrections for its response to a co-worker raping her on three occasions outside of the workplace. The Ninth Circuit reversed the trial court’s dismissal of her case. The appellate court determined that a reasonable jury could conclude that the IDOC effectively condoned the rapes by requiring Ms. Fuller to return to a workplace run by supervisors who showed public support for her rapist, eagerly anticipated his return, and continued to pay him while denying her paid leave. As a result, IDOC created a hostile work environment by making it more difficult for Ms. Fuller to do her job, to take pride in her work, and to desire to stay in her position.

Vacation pay at time of separation

July 28, 2017, Fourth District Court of Appeal, Nathan Minnick v. Automotive Creations, Inc.: Mr. Minnick sued Automotive Creations, Inc. on behalf of himself and other employees alleging that their employer’s policy violated California law because it required employees who worked for less than one year to forfeit vested vacation pay. The appellate court noted that the California Supreme Court interpreted Labor Code section 227.3 to mean that once vested, vacation pay may not be forfeited. The Fourth District agreed with a Second District decision (Owen v. Macy’s, Inc. (2009) 175 Cal.App.4th 462), which provides that the employer may establish a waiting period before the employee becomes eligible to earn vacation, and if the employer’s policy is clearly stated, the waiting period policy is enforceable. The Fourth District affirmed the dismissal of the case.

Anti-SLAPP motion and retaliation

July 26, 2017, Fourth District Court of Appeal, Aram Bonni v. St. Joseph Health System: Mr. Bonni sued St. Joseph Health System for whistle-blower retaliation. St. Joseph filed a special motion to strike the complaint (“anti-SLAPP motion”), which the trial court granted. The court of appeal reversed. The Fourth District reviewed the recent Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 decision, which counseled that in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability. The Fourth District determined that Mr. Bonni’s claim, based on Labor Code 1278.5, arises from St. Joseph’s retaliatory purpose or motive, and not from how that purpose is carried out, even if by speech or petitioning activity. It then observed that Mr. Bonni’s complaint did not allege any specific written or oral statement or writing which allegedly formed the basis of his retaliation claim. Instead, he alleged that an abusive peer review process was initiated by the hospitals because he made complaints about unsafe conditions at the hospitals. Consequently, his claim was not based merely on St. Joseph’s peer review process, or on statements made during those proceedings, but on the retaliatory purpose or motive by which it was undertaken.

Posted by deanroyerlaw in Employment