Blog - California Labor & Employment Law

California Unlawful Discrimination Precedent Set By “Desperate Housewives” Case Ruling

November 20, 2015 by Beck Law P.C.

California unlawful discrimination precedent established. In 2004, actress Nicollette Sheridan signed a contract with Touchstone Television Productions to play the role of Edie Britt on the television series Desperate Housewives. In 2008, she complained to Touchstone that the show’s creator, Marc Cherry, physically assaulted her during a rehearsal. When she learned that her contract was not being renewed for another season, she filed a complaint against Touchstone.

Sheridan’s original claim stated that she had been fired because she complained about the alleged assault, and argued that her firing was a wrongful termination in violation of public policy. Her claim went to court, where a mistrial was declared after the jury was unable to make a unanimous decision.

Sheridan then amended her claim, arguing that her firing amounted to retaliation under Section 6310 of the California Labor Code. In 2013, her case was dismissed, on the grounds that she was required to exhaust her administrative remedies under Sections 98.7 of the California Labor Code before she could sue under 6310. However, on October 20, 2015, a California Court of Appeal overturned that ruling.

The Appellate Court Weighs in

The Court of Appeal ruled only on the issue of whether Sheridan was permitted to file a lawsuit under Section 6310 without first exhausting her administrative remedies under Sections 98.7 and 6312. The decision held that she was not obligated to exhaust these remedies and allowed her complaint to proceed.

Section 6312 states that an employee may file a claim with the California Labor Commissioner under 98.7 if he or she alleges unlawful discrimination under 6310 or 6311. 98.7 states that an employee may file a complaint with the Labor Commissioner within six months of an alleged violation of any law under the Labor Commissioner’s jurisdiction.

The Court of Appeal’s decision holds that the use of the word “may” in Sections 98.7 and 6312 (as opposed to “shall”) indicates that filing a complaint with the Labor Commission was permitted, but not mandatory. In addition, the ruling points to the language used in subdivision (g) of Section 98.7, which states that the law has no requirement that a complainant exhaust administrative remedies.

The decision also cites the case of Lloyd v. County of Los Angeles, in which a public employee argued that he was wrongfully terminated in violation of Section 98.7. In that case, an appellate court rejected the County’s argument that the plaintiff was obligated to exhaust his administrative remedies. The Lloyd ruling stated that plaintiffs suing under the California Labor Code do not have an administrative exhaustion requirement.

What Does This Mean for Future Unlawful Discrimination – Wrongful Termination Lawsuits?

Since Sheridan filed her complaint, the California Legislature has amended the Labor Code to explicitly state that complainants do not have a requirement to exhaust their administrative remedies. The ruling described above asserts that there is no such requirement even for a complaint that was filed before these amendments went into effect in January 2014. [Read more…]

Filed Under: California Employment Law, wrongful termination Tagged With: desperate housewives, employment law, lake county, lakeport, mendocino county, petaluma, santa rosa, sonoma county, ukiah, unlawful discrimination attorney, wrongful termination

Cardenas v. Fanaian Firing Violated Public Policy Exception

November 11, 2015 by Beck Law P.C.

Last August we discussed California’s public policy exception for at-will employment – which prohibits employers from firing employees for reasons that contravene public policy. Since then, a California appeals court has ruled in favor of an employee who was fired for reporting a crime to the police, holding that her termination was in opposition to public policy.

Carcenas V. Fanaian – Facts of the Labor Law Case

In 2010, Rosa Lee Cardenas was working as a dental hygienist for a dentist named Masoud Fanaain. She realized one day that her wedding ring was missing and concluded that it had been stolen from Dr. Fanaian’s office. Cardenas and her husband filed a theft report with the police, and soon after, some police officers showed up at the dental practice and questioned employees.

After the police came to the office a second time, Fanaian terminated Cardenas’s employment. He told her that the presence of the police was making the staff uncomfortable. Cardenas filed a complaint against his practice in 2011, asserting that her firing was in violation of public policy.

Cardenas’s complaint also stated that her firing violated Section 1102.5 of the California Labor Code. 1102.5 prohibits an employer from retaliating against an employee for giving information to law enforcement, if the employee has reason to believe that the information pertains to a violation of the law. (It also protects employees who testify about legal violations and employees who give information to coworkers who have the authority to investigate legal violations.)

The Court’s Employment Law Holding

At trial, the jury sided with Cardenas regarding both causes of action and awarded her $117,768 in damages. Fanaian appealed the verdict to the Court of Appeal for California’s Fifth District, arguing that the firing did not contravene public policy.

The Court of Appeal upheld the decision. According to the opinion, Cardenas was engaging in protected behavior when she reported the theft of her wedding ring to the police because theft is a violation of the California Penal Code. Because there was a causal link between Cardenas’s police report and the decision to fire her, the termination was in violation of public policy.

Fanaian’s appeal asserted that that 1102.5 applies only when an employee discloses information about wrongdoing that is specifically related to the employer’s business activities. The Court of Appeal rejected this argument, holding that the plain language of 1102.5 does not contain any requirement that the information be about business activities. According to the opinion, the statute reflects an intent by the legislature to encourage employees to report unlawful conduct in general, and not just unlawful conduct by their employers. [Read more…]

Filed Under: California Employment Law Tagged With: employment law, Lakeport Employment Attorney, Petaluma Employment Attorney, Santa Rosa Emplyment Attorney, Ukiah Employment Attorney, wrongful termination

Ninth Circuit Issues an Important Age Discrimination Ruling

November 5, 2015 by Beck Law P.C.

The Ninth Circuit Court of Appeal’s age discrimination ruling in the case of France v. Johnson, has overturned a District Court’s ruling on a federal age discrimination complaint. The Ninth Circuit’s decision, which was issued on August 3, 2015, sets an important precedent for how Ninth Circuit courts must handle claims arising under the Age Discrimination in Employment Act (ADEA).

The decision includes the following holdings:

If an employee files an ADEA complaint after being turned down for a promotion and the claimaint is less than 10 years older than the employee who received the promotion, then there is a rebuttable presumption that the difference in age is insubstantial. However, if there is an age difference of 10 years or more, then there is a rebuttable presumption that the difference in age is substantial. (This is the standard that has previously been applied by the Seventh Circuit.)
If someone involved in making an employment decisions makes a discriminatory remark, it can create a genuine dispute of material fact regarding pretext even if the person who made the remark was not the final decision maker.
The Ninth Circuit Court of Appeal’s previous declaration that circumstantial evidence relied upon by a plaintiff must be specific and substantial is tempered by its stance that the burden a plaintiff faces in raising a triable issue of fact is “hardly an onerous one.”

The Age Discrimination Case

The claim was filed by John France, a border patrol agent who works for the Department of Homeland Security. France applied for a promotion to a GS-15 position and was the oldest of 24 applicants. (He was 54 at the time, and the youngest applicant was 38.)

When France was not one of the six top-ranked candidates and thus was not eligible for final consideration, he filed a complaint under the ADEA. He argued that he had evidence of age discrimination, because one of the decision makers commented that he wanted to hire “young, dynamic” employees.

At trial, the decision makers argued that there were several nondiscriminatory reasons why France was not promoted, including poor leadership and judgment skills. The district court granted summary judgment to the Department of Homeland Security. The court’s ruling stated that France successfully established a prima facie case of age discrimination, but could not show that there was a genuine dispute of material fact regarding the agency’s purported nondiscriminatory reasons for why they did not promote him.

The Ninth Circuit Court of Appeal reversed the trial court’s decision. Its ruling stated that even though the average age of the selected employees was 8 years younger than France’s age – and thus was insufficient to establish a prima facie case of discrimination – France could nonetheless rebut the presumption that the decision was made for nondiscriminatory reasons. The court held that France’s evidence was substantial enough that a reasonable jury could find, by a preponderance of the evidence, that discrimination took place. [Read more…]

Filed Under: Age Discrimination Tagged With: age discrimination, age discrimination attorney, employment law, employment lawyer in Santa Rosa, petaluma age discrimination lawyer, Ukiah age discrimination attorney

New California Legislation Affects Employee Parental Activity Leave

October 26, 2015 by Beck Law P.C.

New California legislation affects employee parental activity leave. One of the many bills signed into law by Governor Jerry Brown on October 11, 2015 was Senate Bill 579. This bill amended Section 230.8 of the California Labor Code, which allows employees to take leave from work each year to participate in activities related to their children’s schooling or day care. The section, as revised, now applies to foster parents and stepparents, and it allows employees to take leave for a wider range of activities.

The Specifics of the Parental Activity Leave Bill

The basic provisions of Section 230.8 include:

Requiring California employers with 25 or more employees at a particular location to allow any employee who is a parent (or a guardian or grandparent with custody of a child) to take up to 40 hours of leave per year in order to participate in activities at their children’s schools and/or day care facilities.
An employee may not take off more than eight hours in a calendar month for these school or daycare activities, and the employee must provide his or her employer with reasonable notice.
An employee who decides to take leave for these activities must make use of any vacation time, compensatory time off, or personal leave to which he or she is entitled. In addition, if the employee is entitled to time off without pay, then he or she may make use of it for these activities.
The employee must provide the employer with written documentation from the school or daycare facility if the employer requests it.

SB 579 has amended the section in a number of ways relating to parental activity, including the following:

The term “parent” can now apply not only to a parent or a grandparent, but also to a stepparent, a foster parent, or someone who stands in loco parentis to a child. (“In loco parentis” refers to someone legally standing in the place of a parent.)
The term “licensed child daycare facility” has been replaced with the term “licensed child care provider.”
The time off may be used to find a school or child care facility, or to enroll or reenroll one’s child in a school or child care facility.
The time off may also be used to address an emergency related to a school or a child care provider. The statute explains that the term “emergency” refers to when the child of the employee is unable to remain at his or her school or child care facility. (The possible reasons for this include closure of the facility, behavioral problems, natural disasters, and a request from the school or child care provider that the child be removed.)

SB 358: Equal Pay for Substantially Similar Work

October 20, 2015 by Beck Law P.C.

The concept of paying men and women equal pay for equal work should be familiar to California employers but under new legislation, wage equality requirements no longer apply only to employees with identical job descriptions. Employers are now required to pay male and female employees equal wages for doing “substantially similar” work.

The legislation in question, California Senate Bill 358, was signed into law on October 6, 2015 by Governor Jerry Brown at the Rosie the Riveter National Historical Park in Richmond. The new legislation amends Section 1197.5 of the California Labor Code.

What Does the equal pay Bill Say?

SB 358 states that an employer may not pay any of its employees at lower wage rates than employees of the opposite sex for work that is substantially similar, when viewed “as a composite of skill, effort, and responsibility and performed under similar working conditions,” unless the employer can demonstrate that:

The wage differential is based upon one or more of the following factors: a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and/or a bona fide factor other than sex (such as education, training or experience.)
Each factor is relied upon reasonably, and
The factor or factors relied upon account for the entire wage differential.

The legislation clarifies that if an employer cites a “bona fide factor other than sex,” it must not be based on, or derived from, a sex-based differential in compensation. In addition, the factor must be related to the job in question, and it must be consistent with a business necessity.

Other aspects of the legislation include:

The Division of Labor Standards Enforcement, which is in charge of administering and enforcing the legislation, may supervise the wages that are due to employees when a violation takes place.
Employers must maintain records of the wages and wage rates, job classifications, and other terms of employment of their employees. The records must be maintained for at least three years.
When an employee files a complaint with the Division of Labor Standards Enforcement, the name of the employee will be kept confidential until the Division establishes the validity of the complaint. (There is an exception to this, however, if abridging the employee’s confidentiality prevents the Division from investigating the complaint.) If the employee withdraws the complaint before his or her confidentiality is abridged, then the Division will maintain the employee’s confidentiality.

Your Equal Pay Responsibilities Under the New Law

If you run a business in Sonoma County, Mendocino County or Lake County California, and you have not monitored whether there is a gender gap in your employee’s wages, it is time to start. Consulting an attorney to ensure your wages meet the standards of this legislation may be far less expensive than dealing with a gender discrimination lawsuit. [Read more…]

Filed Under: California Employment Law, California Labor Law, Gender Discrimination, Wage and Hour Law Tagged With: discrimination, equal pay, Petaluma Labor Lawyer, Santa Rosa Labor Lawyer, sexism, Ukiah Employment Lawyer

The NLRB Changes Joint Employment Standards

October 12, 2015 by Beck Law P.C.

The National Labor Relations Board (NLRB) has issued a ruling that adopts a new definition of joint employment. The case revolved around a California labor dispute – but the more expansive definition of joint employment laid out in the decision is expected to have a significant effect on labor cases around the country.

The labor dispute case involved Browning-Ferris Industries of California (BFI), which operates a recycling facility in Milpitas, and Leadpoint Business Services, which provides BFI with employees. A union, Sanitary Truck Drivers and Helpers Local 350, sought to represent the sorters, screen cleaners, and housekeepers who work at the facility. The Union argued that BFI and Leadpoint were joint employers of the employees in question.

A regional director of the NLRB issued a decision stating that Leadpoint was the sole employer of these employees. The ruling used the NLRB’s previous definition of joint employment, which focused on whether the employers exercised the right to control workers in a direct, immediate way (rather than a limited and routine way).

The NLRB’s Reversal on Joint Employment Standards

The NLRB overturned the Regional Director’s decision and found that BFI and Leadpoint are joint employers. The NLRB concluded that it is relevant whether a putative employer has the authority to control the terms and conditions of employment, even if the employer does not actually use that authority. The NLRB’s ruling clarifies that the correct test for whether joint employment exists is “whether one statutory employer possesses sufficient control over the work of the employees to qualify as a joint employer with another employer.”

Under the ruling, entities are considered joint employers if:

They are both employers within the meaning of the common law, and
They share or codetermine those matters governing the essential terms and conditions of employment.

The factors that the NLRB examined in order to determine the answers to these questions included hiring, firing, discipline, supervision, direction of work, hours, and wages. After considering these factors, the Board concluded that BFI shared and co-determined the terms and conditions of employment, and thus, was a joint employer along with Leadpoint.

Why the Joint Employment Standards Change?

The ruling states that the new standard was previously used by the NLRB and courts for years, and that it is based on the common-law definition of an employment relationship. According to the opinion, the common-law test for an employment is based on the right to control and not on whether that control is exercised.

The ruling argues that the previous standard was significantly narrower than the common-law standard. It also states that, under the old standard, employees could be deprived of their right to bargain effectively simply because there were two employing firms involved in their work arrangements instead of one. [Read more…]

Filed Under: Employee Rights Tagged With: employer, employment law, joint, mendocino county labor attorney, Petaluma Labor Attorney, Santa Rosa Labor Attorney, sonoma county labor attorney, Ukiah Labor Attorney

Will Mandatory Arbitration Agreements Become a Thing of the Past in California?

October 6, 2015 by Beck Law P.C.

In a previous blog post, we discussed a decision by the Ninth Circuit regarding mandatory arbitration agreements for employees. A major change to this area of law may be on the way in the state of California, if Assembly Bill 425 is signed into law. This bill would altogether prohibit employers from requiring their employees to sign arbitration agreements as a condition of their employment.

AB 425 was passed by the California Assembly and Senate in August 2015. If it is signed into law by Governor Jerry Brown, it will take effect on January 1, 2016. The bill would become Section 925 of the California Labor Code.

What Does the Bill Require?

AB 465, if enacted, will prohibit any employer from requiring an employee, as a condition of employment, to agree to the waiver of “any legal right, penalty, forum, or procedure for any employment law violations.” It also prohibits employers from threatening, retaliating against, or discriminating against employees for refusing to sign such waivers. In addition, it stipulates that if a waiver of this type will be unenforceable if it is required from an employee (or a potential employee) as a condition of employment or continued employment.

You may be wondering how, under those regulations, an employee’s agreement to arbitrate would be legally valid. The statute stipulates that any waiver of employment rights (such as an agreement to arbitrate) must be “knowing and voluntary and in writing, and expressly not made as a condition of employment.” If the employer seeks to enforce the waiver, then the employer would have the burden of proof to show that the waiver was knowing and voluntary.

There are several other important aspects of AB 465:

If the bill is enacted, it will apply only to waivers that were signed on or after January 1, 2016 – so you do not have to worry that this legislation will render any current contracts invalid.
It authorizes reasonable attorney’s fees to the prevailing claimant.
It exempts organizations that are considered self-regulatory under the Securities Exchange Act of 1934, and it does not apply to regulations adopted under that Act pertaining to any requirement of a self-regulatory organization that a person arbitrate disputes between an employer and an employee.
It does not apply to employees who were individually represented by legal counsel when negotiating the terms of an agreement to “waive any right, penalty, remedy, forum or procedure for a violation of this code.”

Binding Arbitration and Preparing for the Future

If AB 465 is passed into law, it will have major ramifications for employers who require their employees to sign arbitration agreements. If you are an employer in California, and you would like your employees to commit to arbitration, it may be in your best interests to begin thinking now about how you will revise your policies if the bill is enacted. [Read more…]

Filed Under: Binding Arbitration, California Employment Law Tagged With: arbitration, employment law, Petaluma Labor Lawyer, Santa Rosa Labor Lawyer, Ukiah Labor Attorney

Target Hiring Discrimination Complaint Resolved – $2.8M Settlement

September 29, 2015 by Beck Law P.C.

Target hiring discrimination complaint has been resolved by Target agreeing to a $2.8 million dollar settlement deal. The complaint involved several employment assessments used by Target in its hiring practices that the Equal Employment Opportunity Commission (EEOC) found to be discriminatory. One of these assessments, which was performed by psychologists, was determined by the EEOC to be a violation of the Americans with Disabilities Act (ADA).

Neither EEOC nor Target has disclosed exactly what this psychological assessment consisted of. However, the EEOC stated that the test was a “pre-employment medical examination,” which violated a provision of the ADA that prevents employers from subjecting applicants to medical examinations before they have received job offers.

Medical Questions and Examinations – What is Allowed and What is Not

The ADA states that its prohibition against discrimination “shall include medical examinations and inquiries.” It also states that, prior to employment, “a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability, or as to the nature or severity of such disability.”

It should be noted that the ADA also has a provision stating that a covered entity may make pre-employment inquiries into an applicant’s ability to perform job-related functions. The EEOC’s finding of discrimination in this case suggests that a psychologist’s assessment of a prospective employee’s response to questioning is not considered an acceptable inquiry into his or her ability to perform job-related functions.

An employer may require a medical examination after a job offer has been made, and it can even make the offer conditional on the results of the examination. However, this is only possible if:

All entering employees are subjected to such an examination, regardless of disability
The results of such examination are only used in accordance with the ADA
Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files, and is treated as a confidential medical record (There are several exceptions to this confidentiality, as there are some specific circumstances in which supervisors, managers, first aid and safety personnel, and government officials can be given access to information about employees’ health.)

Acceptable Questions

The EEOC has enforcement guidelines on pre-employment disability-related questions and medical examinations, and these guidelines specify certain types of questions than an employer is allowed to ask an applicant prior to a job offer. These include:

Questions about an applicant’s ability to perform specific job functions – such as stating the physical requirements of the job, and asking if the applicant can satisfy these requirements
Questions about an applicant’s non-medical qualifications
Questions asking an applicant to describe or demonstrate how he or she would perform job tasks

[Read more…]

Filed Under: Employment Discrimination Tagged With: discrimination, employment, medical, Target

Does Your Policy on Employee Meal Breaks Violate California Law?

September 25, 2015 by Beck Law P.C.

California’s Labor Code lays out the requirements for when employees must receive meal breaks. Under Section 512(a), an employee with a work period of more than 10 hours per day must be allowed two meal periods that are at least 30 minutes long. If the employee has worked fewer than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee.

That may sound fairly straightforward. However, Industrial Wage Commission (IWC) Order No. 5-2001 has a provision, Section 11(d),that states, “Notwithstanding any other provision of this order, employees in the health care industry who work shifts in excess of eight hours in a workday may voluntarily waive their right to one of their two meal periods.” (The order does not place any limitations on the length of the shift.) This has raised a question for employers in the health care industry – if an employee works for more than 12 hours, can the second meal break be waived?

Gerard v. Orange Coast Medical Center

A California Court of Appeal has weighed in with an answer. In Gerard v. Orange Coast Memorial Medical Center, the court ruled that a hospital violated the rights of its employees by directing them to work shifts in excess of 12 hours without two meal breaks. The court went on to declare that Section 11(d) of IWC order 5-2001 is partially invalid.

The ruling states: “We agree that the conflict between Section 11(d) and Section 512(a) creates an unauthorized additional exception to the general rule set out in Section 512(a), beyond the express exception for waivers on shifts of no more than 12 hours. ‘Under the maxim of statutory construction, expressio unius est exclusio alterius, if exemptions are specified in a statute, we may not imply additional exemptions unless there is a clear legislative intent to the contrary.’”

The court then points to the text of Section 516 of the Labor Code, which states that the IWC may adopt or amend working conditions with respect to meal periods, except as provided in Section 512. In light of this exception, the opinion states that the California legislature intended to prohibit the IWC from amending its wage orders in ways that would conflict with Section 512’s meal period requirements.

In partially invalidating Section 11(d), the court ruled that its decision would be applied retroactively. It held that the plaintiffs are entitled to seek premium damages for any failure by the hospital to provide mandatory second meals that took place within the previous three years. [Read more…]

Filed Under: Blog, California Employment Law Tagged With: california labor law, employment

Sexual Harassment Claims and Franchisor Liability

September 15, 2015 by Beck Law P.C.

Sexual harassment claims and franchisor liability. If you are a franchisor and you have franchises in the state of California, you should be aware that you may be found liable if a sexual harassment claim is filed against you based on the conduct of one of your franchisees.

The Supreme Court of California’s decision in the case of Patterson v. Domino’s Pizza, LLC has shed some light on the circumstances in which a franchisor can be held liable. The ruling states that a franchisor will be liable for sexual harassment if “it has retained or assumed the right of general control over the relevant day-to-day operations at its franchised locations.”

The Sexual Harassment Case

The harassment claim was filed by an employee named Taylor Patterson who worked at a Domino’s Pizza franchise owned by a company named Sui Juris. Patterson filed a sexual harassment complaint under California’s Fair Employment and Housing Act (FEHA) against Sui Juris, her supervisor, and Domino’s Pizza itself. Her complaint alleged that the supervisor groped her and made lewd comments and gestures. The complaint also alleged that she faced retaliation after her father reported the supervisor’s behavior to Domino’s human resources department and to the police.

Patterson argued that Domino’s Pizza was vicariously liable for her harassment because her supervisor was Domino’s “agent, employee, servant and joint venturer.” Her complaint also stated that her supervisor acted “within the course, scope, and authority of such agency, employment and joint venture, and within the consent and permission of” Domino’s Pizza.

At trial, Domino’s Pizza argued that it was not vicariously liable for the supervisor’s behavior because the Sui Juris franchise was a separate business, and thus Domino’s was not the supervisor’s employer. The trial court agreed and dismissed the action against Domino’s. An appeals court overturned the summary judgment, but the California Supreme Court ultimately agreed with the trial court’s original ruling.

What the Ruling Means For Future Franchisor Sexual Harassment Cases

In the opinion, the California Supreme Court held that Domino’s Pizza could not be held responsible for sexual harassment by a franchisee because Domino’s never assumed “the traditional right of general control” that an employer would typically have over its employees. The court emphasized that Sui Juris, rather than Domino’s, provided the employees with sexual harassment training, and that Domino’s was not involved in Sui Juris’s hiring process.

While the court dismissed the action against Domino’s, it also affirmed that there are circumstances in which a franchisor will be liable for the conduct of franchisees. The ruling establishes that a franchisor can be liable for such conduct if “it has retained or assumed the general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee’s employees.” [Read more…]

Filed Under: Sexual Harassment Tagged With: business, franchise, sexual harassment