Articles

Dep't of Homeland Sec. V. MacLean, 135 S. Ct. 913 (2015)

An Air Marshall's disclosure of information related to the Transportation Safety Authority (TSA)'s decision to cancel all Air Marshall's missions was protected as whistle-blowing activity because Homeland Security Act, 49 U.S.C. § 114, did not specifically prohibit air marshal's disclosure.

Cardenas v. Fanaian, D.D.S., Inc., 240 Cal. App. 4th 1167, 194 Cal. Rptr. 3d 1 (2015)

An employee has a cause of action for damages against an employer for employment based retaliation for reporting and otherwise cooperating with law enforcement agents in an investigation involving theft.

Ferrick v. Santa Clara Univ., 231 Cal. App. 4th 1337, 181 Cal. Rptr. 3d 68 (2014)

Where an employee asserts a whistleblower claims based on allegations of supervisor misconduct, such allegations must be supported by sufficient facts implicating public policy, otherwise such whistleblower claims are not legally cognizable and must be dismissed as a matter of law.

Nosal-Tabor v. Sharp Chula Vista Med. Ctr., 239 Cal. App. 4th 1224, 191 Cal. Rptr. 3d 651 (2015)

The Court held that summary judgement is not proper with respect to evaluating both retaliation and whistleblower claims where evidence did not conclusively demonstrate a nurse’s complaints of illegal hospital procedures, or that there were any nursing standards applied incorrectly or in an unreasonable way.

Satyadi v. W. Contra Costa Healthcare Dist., 232 Cal. App. 4th 1022, 182 Cal. Rptr. 3d 21 (2014)

An employee asserting a wrongful discharge for retaliation under California Labor Code 1102.5 is not required to exhaust administrative remedies before doing so, especially where such claims for wrongful discharge and retaliation involve allegations of illegality, wrongdoing, and violations of public policy.

Hirst v. City of Oceanside, 236 Cal. App. 4th 774, 187 Cal. Rptr. 3d 119 (2015)

Plaintiff was employed by an independent contractor performing on site services for Defendant employer, and has standing to sue employer under Fair Employment and Housing Act (“FEHA”) for sexual harassment committed by one of Defendant’s employees.

France v. Johnson, 795 F.3d. 1170 (9th Cir. 2015)

The Court held that evidence of non-discriminating supervisor’s preferences for promoting younger employees was sufficient showing of pretext in failure to promote claim under ADEA.

Curley v. City of N. Las Vegas, 772 F. 3d 629 (9th Cir. 2014)

Employee was not able to overcome an Employer’s motion for summary judgment by challenging only one of several well supported, independent reasons for termination.

Mayo v. PCC Structurals, Inc., 795 F. 3d. 941 (9th Cir. 2015)

Plaintiff after being diagnosed with major depressive disorder was no longer considered a qualified person under the ADA or Oregon disability law after physically threatening coworker.

Nigro v. Sears, Roebuck & Co., 784 F.3d. 495 (9th Cir. 2015)

Employee presented a triable issue of fact sufficient to defeat a motion for summary judgement under FEHA even though employee’s evidence was limited to his own self-serving declaration.

Hailliburton Energy Servs. Inc. v. Dept of Transp.

Where an employee was responsible for a vehicular accident while driving a company truck outside of the scope of his employment and for personal reasons, an employer cannot be held liable for such conduct under the doctrine of respondeat superior.

Muniz v. UPS

When calculating legal fees resulting from an employment discrimination lawsuit, the Court holds within its discretion the ability to evaluate the reasonableness of the attorney’s fees, including seeking verifiable proof or documentation regarding a paralegal’s billable hours and time.

Arizona v. ASARCO

Punitive damages are considered to be excessively imposed if exceeding 125,000 times any and all other damages awarded.

Harris v. City of Santa Monica

The case sets forth that mixed motive discrimination cases must be evaluated where the jury must first be instructed that if an employer’s action was substantially motivated by discrimination before the burden shifts to the employer to demonstrate a same day decision or legitimate reason for such conduct.

Rope v. Auto-Chlor Sys. of Wash, Inc

An employee may seek a claims for wrongful discharge and discrimination, by terminating an employee who seeks medical employment leave resulting from a voluntary donation of his kidney pursuant to a state program.

Furtado v. State Pers. Bd

There can be legally cognizable claim for discrimination or failure to provide a reasonable accommodation where doing so would essentially constitute the elimination of physical job requirements.

Lawler v. Montblanc N. A.

Disability discrimination, retaliation, and harassment claims pursuant to the California Fair Employment and Housing Act (“FEHA”) by an employee against an employer were without merit where employee failed to make a prima facie showing that alleged discrimination resulted from the inability to perform certain duties.

McGrory v. Applied Signal Tech

The Fair Employment and Housing Act (FEHA) does not provide employment protection to employees that lie or withhold relevant information during an employer’s investigation of discriminatory conduct.

Vance. v. Ball State

In Title VII employment discrimination actions, an employer cannot be held liable if the individual that committed such alleged discriminatory acts, did not have supervisory power including but not limited to the ability to hire, fire, demote, promote, transfer or discipline an employee.

McVeigh v. Recology

Employee claims for retaliation are asserted with merit if such employee based conduct involves protected activity, including disclosing unlawful conduct by his or her employer.

Cosentino v. Fuller

The doctrine of sovereign immunity does not necessarily bar an employment based claim for wrongful discharge or termination against an governmental or agency actor when such conduct falls outside of the scope of such work.

Cifuentes v. Costco

When a judgment is rendered on behalf of a former employee, an employer is obligated and within their discretion to withhold payroll taxes from awards of lost wages to such former employee.

Teamsters v. Washington Dept of Corrections

The Washington Department of Corrections (WDOC) sex-based staffing assignment process did not violate Title VIII where there was a “bona-fide occupational qualification” deemed reasonably necessary to the normal operation of the prison guard position.

EEOC v. Abercrombie

An employer may still be liable for employment discrimination pursuant to Title VII, despite not have actual knowledge that an employee requires religious accommodation for particular religious observances or practices. In a recent case, the defendant employer, hosting a national chain of clothing stores attempted a so-called “Look Policy” governing employees dress, which specifically included the prohibition of “caps.”

Stenehjem v. Sarren

In anti-SLAPP suit, there is no requirement that it demonstrate an express threat or demand for a specific sum of money in writing in anticipation of litigation, to necessarily constitute extortionate. In a recent case, the Court evaluated the various variables, elements, and other circumstances that constitute of an extortionate based writing.

Ellis v. U.S. Sec. Assocs.

Employment agreements between parties that attempts to change, fix, or otherwise amend the California statute of limitations for bringing employment based sexual harassment claims is not legally cognizable or recognized by the Courts.

Cheal v. El Camino Hospital

A third party declaration can be used as a declaration against an interest of an employer by an employee in an employment retaliation case and can be the basis by which a Court may affirm a finding that triable issues of material fact exist sufficient to state such employment discrimination claims. A recent decision evaluates the basis by which certain factual employment circumstances, including third party declarations, may be evaluated by the Courts in an employment retaliation case and can serve as the basis by which a Court may conclude that triable issues of material facts exist as it relates to such employment claims.

In Re Walgreen Co. Overtime Cases, 231 Cal. App. 4th 437, 180 Cal. Rptr. 3d 38 (2014)

A recent decision put at issue the question as to whether employers have an affirmative duty pursuant to labor and wage and hour regulations, to provide employees with meal breaks. In the case of Re Walgreen Co. Overtime Cases, 231 Cal. App. 4th 437, 180 Cal. Rptr. 3d 38 (2014), the Court assessed this very issue, and determined that although employers do have a duty to provide meal breaks for employees, there duty ends there, and they have no further duty to actually insuring that employees actually take them.

Hall v. Rite Aid

A recent decision put at issue the question as to whether an employment class action may be certified regarding the issue of whether pursuant to Section 14 of the Industrial Welfare Commission Wage Order, a particular defendant Employer has a duty to provide its cashier or clerk employees with suitable seats, and an employer’s failure to do so, constitutes a violation of the California Labor Code Section 1198.

Duran v. U.S. Bank National Association Case Analysis

When determining damages in a class action case, the use of statistical sampling is an unreliable means by which to determine liability. A recent decision highlights that with respect to class action cases, requirements related to demonstrating the “commonality” of the class, even with respect to the formation of damages is still a prerequisite to not only class formation, but the determination and assessment of class damages and liability.

Martinez v. Joe's Crab Shack Holdings Lawsuit Allowed to Go Forward

In a case that has wound its way up and down the California court system for several years, some clarity has finally been achieved. Martinez v. Joe’s Crab Shack Holdings, 231 Cal.App.4th 362 (2014), began when Lisa Saldana, together with current and former employees of various Joe's Crab Shack (JCS) restaurants in California, sued JCS based on wage and hour claims. Saldana sought class status for the salaried managerial employees, claiming that they were misclassified as exempt from overtime pay requirements.

Integrity Staffing Solutions v. Busk: Specific Holding Speaks to Broader Issue

A recent United States Supreme Court decision has made it clear that an employee may not receive compensation for activities that were not integral and indispensable to their principal duties. In Integrity Staffing Solutions v. Busk, 135 S. Ct. 513, 519 (2014), a unanimous decision made it clear that there are post-shift activities (as well as certain pre-shift actions) for which an employer does not have to compensation an employee.

Rhea v. General Atomics: Vacation/PTO Deduction for Partial-day Absences Clarified

Under both California and federal law, when an exempt employee is absent from work for a partial day, an employer is prohibited from deducting monetary pay from the employee. However, in 2005, in the case of Conley v. Pacific Gas & Electric Co., the California Court of Appeals held that under California law, an employer could require exempt employees to use their accrued vacation time to offset partial-day absences without destroying the exemption. The Conley court addressed partial-day absences of four or more hours in duration.

Sandifer v. United States Steel “Donning and Doffing” is not Compensable Work Time

In yet another opinion on what is compensable work time under the Fair Labor Standards Act (“FLSA”), the United States Supreme Court considered the issue of whether putting on and taking off – known as donning and doffing – protective clothing at the beginning and end of the work day is extra work time that requires extra pay in the case of Sandifer v. United States Steel, 134 S.Ct. 870 (2014).

Dilts v. Penske: A Victory for Workers and States' Rights

The tension between state and federal laws is nothing new. Generally speaking, federal law sets a threshold standard from which states are free to enact more protective health and safety regulations, laws governing the employer and employee relationship, and laws and regulations governing a myriad of other areas. However, there are limitations to a state's power to regulate, particularly in an industry that has undergone deregulation such as the motor carrier industry.

Peabody v. Time Warner Cable, Inc. Commission Wages: How and When They are to be Paid

In the case Peabody v. Time Warner Cable, Inc., 59 Cal.4th 662 (2014), the California Supreme Court agreed to resolve a question from the Ninth Circuit Court of Appeals. The question involved commission wages and California's commissioned employee exemption to overtime pay. Specifically, the question put to California's highest court was whether an employer could take commission wages paid in one period and apply them to other pay periods in order to fulfill the statutory compensation requirements for the State of California and avoid the payment of overtime.

Cochran v. Schwan's Home Service, Inc. Bring Your Own Device Programs Just Got Better – For Employees

In a decision that will have far-reaching consequences for all Bring Your Own Device (BYOD) programs, the California Court of Appeal reached a decision finding that employers must reimburse employees when those individuals were required to use personal cell phones for work-related responsibilities. The court determined that this applied even if the employee did not incur any actual out-of-pocket expense as a result of the work-related use, based on the specific phone plan that the person had.

Thomas v. County of Riverside The Ninth Circuit Protects Free Speech

The Ninth Circuit Court of Appeals once again confirmed the right of free speech for employees and the protection of that right from retaliation in Thomas v. County of Riverside, 763 F.3d 1167 (2014). Wendy Thomas and Service Employees International Union sued the County of Riverside and certain County employees as individuals after the County took numerous adverse employment actions against Thomas. Thomas argued that the employment actions were taken in retaliation for her exercise of free speech and that the actions therefore violated her First Amendment rights.

Lane v. Franks First Amendment Protections for Public Employees Clarified

Fifty years after first addressing the issue of freedom of speech in the context of public employment (Pickering v. Board of Education, 391 U.S. 563 (1968)), the Supreme Court of the United States reiterated that citizens do not surrender their First Amendment rights when they accept public employment.

Airline Pilots Association International v. United Airlines, Inc. California's Kin Care Law not Preempted by ERISA

In another case limiting the scope of federal preemption of state law, the California Court of Appeals held that the California Kin Care law, which allows employees to use paid sick leave to care for ailing family members, is not preempted by a sick leave plan established by an employer under the federal ERISA statute.

Workplace Verbal Attacks On Male Employee's Heterosexual Identity Deemed Harassment Under FEHA

Taylor v. Nabors Drilling USA: Pursuant to the provisions of FEHA, sexual harassment may be found if a person in subjected to unwanted comments or acts based on “race, color, religion, sex, gender, gender identity, gender expression, sexual orientation ...” Government Code, §§ 12900 et seq. This case clarifies that “[s]exually harassing conduct need not be motivated by sexual desire.” Here, the defendant argued that he was not liable because the comments were not motivated by sex because Taylor was known to be heterosexual and the comments referring to him by derogatory terms for a homosexual were not made because the individuals making the comments had any sexual desire for Taylor.

Employer Can Not Classify Employees as Independent Contractors in Certain Cases

Alexander v. FedEx Ground Package: In this case, the court found that delivery drivers who worked for Federal Express were misclassified as independent contractors because Federal Express was found to control the manner and means in which drivers delivered packages to defendant's customers.

Family Medical Leave Act does not Provide Protections if FMLA Leave is not Requested

Employees may rightfully decline to use family leave granted by employers under Family Medical Leave Act even if the employee had previously requested FMLA leave time from their employer. Employer may not retaliate if Employee decides not to take time off under the Family Medical Leave Act.

Failure to Comply with Fitness for Duty Justified Termination

Kao v. University of San Francisco: A tenured college professor's termination from employment was not wrongful when he refused to participate in a fitness for duty examination after colleagues complained about the professor's unusual and threatening behavior while at work. This case shows us that employees should submit to reasonable "job-related" examination requests by their employers.

Plaintiff Fails to Prove that Lack of Training Led to Intentional Poisoning

Montague v. AMN Healthcare: An employees was poisoned by coworker and then sued the staffing agency that provided the coworker. The employees claims for vicarious liability and negligent training failed because the court ruled that the coworkers bad actions because there was no evidence to show that the "lack of training" had anything to do with the poisoning. The employer staffing agency could have been found liable, however, if it was shown that the staffing agency provided inadequate training.

Franchisor Not Liable for Wrongful Conduct of Franchisee’s Employee

Patterson v. Domino's Pizza, LLC: A female employee of a Domino's Pizza Store (Franchisee) was allegedly sexually harassed by a male supervisor. Franchisor (Domino's Pizza, LLC) was found not liable for the actions of the franchisee's male supervisor because Franchisor did not "retain or assume general right of control over" the franchisee's employees.

Police Officer with ADHD Not Protected by Americans with Disabilities Act

Weaving v. City of Hillsboro: A police officer had a successful career despite having been diagnosed with ADHD as a child. Although the officer had a history of conflicts with his coworkers, the court said his ADHD did not "substantially limit" his ability to work or interact with others within meaning of Americans with Disabilities Act ("ADA"). In order to be "substantially impaired" in his ability to work, the employee's disability must limit his ability compared to most people in the general population.

Individual May Bring Wrongful Termination Action for Violation of Public Policy

Yau v. Santa Margarita Ford: There is a strong public policy to provide a workplace free from criminal activity. As a result, an employee may have a claim against their employer for wrongful termination if the employee is fired because of reporting criminal activity at the workplace.

Whistleblower Protections Extend to Additional Reporters

Hager v. County of Los Angeles: Whistleblower retaliation laws protect an employee from being wrongfully terminated simply because the employee reported an alleged violation of state or federal law being committed by the employer. This case holds that the term "Disclosure" within the meaning of whistleblower law can be made by employee other than the first employee who reported the alleged violation. In other words, any employee who blows the whistle can have a case, they don't have to be the first one to "disclose" the violation.

Bone Fide Occupational Qualification Must be Applied Carefully

Ambat v. City & County of San Francisco: Male sheriff's successfully challenged a county policy excluding them from supervising female inmates. Here, the court found the county committed sex discrimination because it could not establish that sex was a legitimate proxy for "reasonably necessary" job qualifications.

Labor Code section 229 precluded arbitration of claim for unpaid wages

Lane v. Francis Capital Mgmt.: A recent decision confirms that workers may bring unpaid wages claims to court even though they may have agreed to arbitrate all employment-related disputes.

Federal Arbitration Act preempts argument that arbitrator has financial self-interest in deciding unconsionability

Malone v. Superior Court: After a recent case found that parties, whose arbitration agreement contained a delegation clause, had to let the arbitrator rather than the court decide whether the delegation clause was unconscionable.

Agreement to submit all claims to arbitration was insufficient to allow employee to compel employer into class arbitration

Network Capital Funding Corp. v. Papke: An employee hoping to retain the right to seek class arbitration will not be able to do so, unless the employee is party to an arbitration agreement that explicitly allows for class-arbitration.

Private Attorney General Act of 2004 ('PAGA') does not qualify as class action under Class Action Fairness Act for purposed of federal diversity jurisdiction

Bauman v. Chase Investments: Defendants in PAGA actions will not be able to remove their cases to the federal courts using CAFA after a recent decision.

In case challenging independent contractor status, the proper question at class certification stage is whether the employer's right to control was sufficiently uniform to permit classwide assessment, not whether control was actually uniformly exercised.

Ayala v. Antelope Valley Newspapers: Those seeking to bring a class action against a company in California would do well to consider whether or not the company had the power to treat potential class members the same, even if the company treated them different.

Vranish v. Exxon Mobil Case Analysis

A recent California Court of Appeal decision put employees considering collective bargaining agreements on notice that such agreements may exclude them from receiving overtime pay.

Davis v. Nordstrom Case Analysis

A recent decision has important implications for employees in California whose employer issues an employee handbook or other terms of employment.

Johnmmohammadi v. Bloomingdale’s Case Analysis

A recent case has confirmed that employees, who make the voluntary and informed choice not to opt-out of arbitration agreements, cannot then claim that their employer has coerced them into waiving their class action rights.

Casas v. Carmax Auto Superstores California Case Analysis

A recent California case shows that employers may legally amend or terminate an arbitration agreement, so long as the employer provides proper notice for the modifications.

Willis v. Prime Healthcare Case Analysis

A recent case provides that an employee’s individual arbitration agreement is enforceable when it is consistent with a collective bargaining agreement.

Dutra v. Mercy Medical Center

An employee sought to bring a common law action for wrongful termination, citing to public policy pursuant to section 132a of the California Labor Code as the basis for such claim, and where such claim was essentially identical to the employee’s workers’ compensation based claim.

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC

The Equal Employment Opportunity Commission (“EEOC”) filed a claim against a Church as a result of the firing of one of its “lay” or voluntary teachers that was suffering from narcolepsy.

Fitzsimons v. Cal Emergency Physicians Med. Grp.

In this particular case, a physician employee whom was a member of a Defendant medical group filed a lawsuit on the basis that her termination violated the California Fair Employment and Housing Act (“FEHA”) where such termination was alleged to have been on the basis of retaliation for her opposition to the sexual harassment of employees.

Rickards v. United Parcel Sev., Inc.

In this case the plaintiff employee filed a claim against a defendant employer, alleging various violations of California’s Fair Employment and Housing Act (FEHA).

Shelly v. Geren

In this case, the plaintiff employee sued the defendant employer, a federal agency for allegedly violating the federal Age Discrimination in Employment Act (“ADEA”) by failing to interview him and rejecting his applications for two promotions.

Sheppard v. David Evans & Assocs.

Plaintiff a former employee filed a lawsuit against defendant employer for discrimination under the Age Discrimination in Employment Act (ADEA).

Veronese v. Lucasfilm Ltd.

The facts of this case essentially involve plaintiff, a well known individual with political connections seeking employment with a large film-making company for the position of house manager, wherein the employer had a number of reservations regarding the hiring of such high profile individual for a position that largely required significant family caretaking and performance of menial tasks.

Patterson v. Domino’s Pizza

In this case, plaintiff alleged that the assistant manager at a national pizza franchisee sexually harassed and assaulted her and as a result, plaintiff filed suit against the national franchise pizza company under the doctrine of respondeat superior, alleging in relevant part that such franchise was vicariously liable.

Rehmani v. Superior Ct.

The plaintiff employee, a Muslim Pakistani, reported to his human resources director that he was experiencing harassment from various Indian employees, alleging they were receiving favorable treatment based on their national origin.

Baker v. Mulholland Security & Patrol, Inc.

A security company employed plaintiff employee as a security guard and after receiving a number of complaints from a client regarding the employee's’ lack of professionalism and phone use while on the job.