Wage and hour

June and July 2020 employment law decisions

Receipt of government funds conditioned on compliance with the law does not make a private employer a state actor for purposes of constitutional claims.

July 20, 2020, Ninth Circuit Court of Appeals, John M. Heineke v. Santa Clara University: Mr. Heineke sued Santa Clara University for violations of the Fourteenth Amendment due process and equal protection rights after it terminated him for sexually harassing a former student. The Ninth Circuit affirmed the trial court’s dismissal of the constitutional claims on grounds the university is not a state actor: the university’s receipt of government funds conditioned on compliance with generally applicable laws was insufficient to transform a private university into a state actor.

Business is subject to liability for wage and hour violations despite lending its signatory status in a work contract to a third party.

July 14, 2020, Second District Court of Appeal, Alyosha Mattei v. Corporate Management Solutions, Inc.: Mr. Mattei and three co-workers sued Corporate Management Solutions, Inc. (CMS) for wage and hour violations while working on a television commercial. The trial court dismissed the case on grounds CMS was not the employer of the four plaintiffs. The appellate court reversed. It pointed to the fact that CMS was a signatory to a Commercial Production Agreement that governed the television commercial, the language of which did not show that CMS’s lending of its signatory status to a third party relieved CMS of its liability for wage and hour violations. In addition, CMS’s contract with the third party provided that CMS was obligated to ensure timely payment of wages.

Individual sentenced to perform work duties without pay in lieu of incarceration cannot sue the county for employment discrimination.

July 10, 2020, Fifth District Court of Appeal, Ronald Talley v. County of Fresno: Mr. Talley served a criminal sentence by participation in an Adult Offender Work Program. After getting injured while working in this program, Mr. Talley sued Fresno County for, among other things, disability-related claims under California’s Fair Employment and Housing Act (FEHA). The trial court dismissed the case (summary judgment) after finding that Mr. Talley could not be an employee under the FEHA. The court of appeal reviewed federal and state court precedent and concluded that compensation is a threshold test for determining whether an employment relationship exists. It concluded that the benefit Mr. Talley received for participating in the program, staying out of jail, did not constitute compensation to him an employee because it was not financially significant or quantifiable.

Catholic school teachers cannot sue for employment discrimination.

July 8, 2020, U.S. Supreme Court, Our Lady of Guadalupe School v. Morrissey-Berru: Two elementary school teachers at Catholic schools brought discrimination claims against their employer. The Supreme Court concluded that the claims were barred by the “ministerial exception” to federal laws governing the employment relationship between a religious institution and certain employees. The court pointed to the teachers’ performance of vital religious duties including educating students in the Catholic faith and participating in religious activities with students. Justices Sotomayor and Ginsburg dissented on grounds that the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not required to be Catholic.

Supervisors looking at a clock during meal or rest breaks not sufficient to show a violation of break laws.

June 30, 2020, First District Court of Appeal, Joana David v. Queen of the Valley Medical Center: Ms. David filed an action against her employer contending she was denied meal and rest periods. The appellate court affirmed the trial court’s dismissal of those claims (summary judgment). Ms. David’s evidence that her supervisors looked at the clock while she was on breaks did not create a dispute of fact: there is a lack of precedent that this constitutes coercion or pressure to undermine a formal policy of providing breaks; and Ms. David testified in deposition that she did not recall missing a meal period, a supervisor interrupting a meal period with work-related questions, or being told to end meal or rest breaks early.

Posted by deanroyerlaw in Employment

June 2020 employment law decisions

Airline workers are protected by California’s wage and hour laws only if the base of work operations is in California.

June 29, 2020, California Supreme Court, Charles E. Ward v. United Airlines, Inc. and Felicia Vidrio v. United Airlines Inc.; Dev Anand Oman v. Delta Airlines, Inc.: Pilots (Ward and Vidrio case) and flight attendants (Oman case) sued their airline employers for violations of California’s minimum wage (Oman case) and wage statement (both cases) laws. The California Supreme Court decided that the laws apply only to those pilots or attendants who have their base of work operations (principal place of work) in California, regardless of their place or residence or whether a collective bargaining agreement governs their pay.

Federal law prohibiting discrimination in the workplace includes discrimination based on sexual orientation and gender identity.

June 15, 2020, U.S. Supreme Court, Bostock v. Clayton County, Georgia: The Civil Rights Act of 1964 (Title VII) prohibits discrimination in the workplace based on sex. The question for the U.S. Supreme Court was whether the prohibition applies when an employer terminates an employee based on their sexual orientation or gender identity. The high court concluded that “[t]he answer is clear” because an employer who fires and individual for being homosexual or transgender does so for traits or actions it would not have questioned in members of a different sex. The Supreme Court acknowledged that those who adopted the Act might not have anticipated this result, but the express terms of the law provided the court with its answer.

Posted by deanroyerlaw in Employment

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

February 2020 employment law decisions

Louisiana law applies to wage and hour claims by employees who perform some work off the coast of California.

February 18, 2020, Second District Court of Appeal, Gulf Offshore Logistics, LLC v. Superior Court of Ventura County: Former crew members of a ship that provides maintenance services to oil platforms off the California coast alleged violations of California’s wage and hour laws. The appellate court decided that Louisiana, not California, law applied because the employees lived outside of California, worked for a Louisiana-based employer, performed some work inside California’s territorial waters (on the ship) but otherwise had no significant contact with California, and the management and administration of the employment relationship was performed in Louisiana.

Employers must pay for employee time spent waiting and undergoing exit searches of personal items brought to work.

February 13, 2020, Supreme Court of California, Amanda Frlekin v. Apple Inc.: The Ninth Circuit Court of Appeals requested that the Supreme Court of California decide whether the time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work for personal convenience by employees must be paid. The court’s answer was yes because the employees were under Apple’s control during the searches: the searches are mandatory and conducted on Apple property, and Apple requires its employees to perform supervised tasks while waiting for and during the searches.

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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