Bay Area Employment Lawyer Blog

In Long Awaited Brinker Decision, California Supreme Court Affirms Employers' Duty to Provide a Thirty-Minute, Uninterrupted Meal Period

Wed, 09 May 2012 12:20:47 -0800

The California Supreme Court has laid clear, after much confusion, the proper standard by which employers must provide their employees with meal periods, imposing an affirmative burden to completely relieve their employees from duty so that the employees may take full, thirty-minute, uninterrupted meal periods. If the employer fails to meet its obligation to do so, the damaged employee is eligible for a meal period premium of an hour's worth of wages. In addition, the Court has clarified the standard by which meal period and rest break class actions may be certified and laid forth the appropriate standard for the timing of meal and rest periods.

In Brinker, the Court points out that, if an employee works five or more hours in a shift, the employer must do one of three things: (1) afford the employee an off duty meal period; (2) reach a voluntary agreement with an employee on a meal period waiver if one hour or less will end the shift; or (3) obtain written agreement to an on-duty meal period if circumstances permit. If it does none of the three, it is liable for premium pay.

In addition, the Court makes it clear that employers may not skirt their obligations, emphasizing that "an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks." The only steps an employer need not take are to "police" breaks and affirmatively ensure that no work is done.

With respect to class certification, the Court has put an abrupt halt to the disturbing trend of trial courts reaching the merits of a case at the class certification stage, before the parties have even had the opportunity to fully flesh out the evidence in a case. It clarified that a court may only look at the legal merits of a case in limited circumstances, and it reaffirmed the appropriateness of class actions in this legal area.

Lastly, the Court clarified the timing requirements for provision of meal periods, namely, that the first meal period be provided after no more than five hours of work and, for those employees who work a shift of ten hours or more, a second meal period be provided after no more than ten hours of work.

In sum, the Court clarified employees' right to a meal period, protected class actions as a way of vindicating this right, and ensured that employers do not delay meal periods until too late in a shift.

Darin Ranahan
May 9, 2012

Court Holds that Attendance is an Essential Function of the Job for a Neonatal Nurse, Making the Law of Reasonable Accommodation Unnecessarily Unreasonable

Mon, 07 May 2012 11:22:16 -0800

Perhaps this case is an example of bad facts make bad law, or perhaps this panel was just kinda testy about the importance of attendance at work. Ms. Samper was a nurse who worked in the neo-natal intensive care unit of defendant Providence St. Vincent Medical Center. Due to an admitted disability, she needed some flexibility in attendance, meaning that she needed more sick days than was permitted under the hospital's policy. Before reading this opinion, and given the law in the Ninth Circuit, including the venerable case of Humphrey v. Memorial Hospitals, 239 F.3d 1128 (2001) (strongly worded opinion requiring a hospital to provide a reasonable accommodation to a medical transcriptionist including flexibility in an attendance policy) , I had no doubt that flexibility in an attendance policy at a hospital would be just the type of reasonable accommodation that the Ninth Circuit would uphold. Boy was I in for a surprise.

Ms. Samper, like Ms. Humphrey, suffered from a disability that made accommodations in the attendance policy a requirement for her to work. Once at work, there was absolutely no evidence that her performance suffered in any way. This type of accommodation seemed just what the doctor ordered. Not so, says the Ninth Circuit, making some very bad law in the process.

According to the Ninth Circuit, regular attendance is an "essential function" of the job of a NICU nurse. Thus, since Ms. Samper's disability impinges upon her attendance, the hospital need not accommodate her. The Ninth Circuit reached this opinion by relying upon the hospital's job description and supervisor say so (isn't that convincing!). The Ninth Circuit made fun of Ms. Samper's argument that, since all employees are permitted sick days and vacation and the hospital is able to accommodate this, it ought to be able to accommodate further absences due to Ms. Samper's disability.

Interestingly, there is absolutely no evidence that the care actually provided to the babies in the unit was compromised due to scheduling and/or absences by Ms. Samper or any of the other nurses. Indeed, these are highly trained professionals. The hospital states that understaffing compromises hospital care, but in no way suggested the hospital has actually ever suffered from understaffing.

This case starts by announcing, "This case tests the limits of an employer's attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential". Perhaps this result was reached because the record was bare on the side of the plaintiff's evidence. Perhaps this result was reached because there is really, truly something different about neo-natal nursing. Whether this is true or not, the Ninth Circuit has just made a mess of the law of reasonable accommodation, and looked to be a bit glib about the facts. Based on this case, do we now know that attendance is not an essential function for a medical transcriptionist, but it is for a neo-natal nurse? Or do we now know that under the facts submitted to the court in Ms. Samper's case, attendance was an essential function, but it may not be for a different hospital, a different person, a different department, a different disability/reasonable accommodation, and on a different record? All I know is that Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012), is bad law, neither well-reasoned nor providing specific enough guidance to employers, employees and lower courts.

Jody LeWitter
May 7, 2012

NLRB Rules That Employer Cannot Simply Claim That an Employee is Not Authorized to Work Under Immigration Laws to Engage in a Fishing Expedition Regarding an Employee's Immigration Status

Thu, 26 Apr 2012 10:42:19 -0800

Hoffman Plastic Compounds, Inc. v NLRB, 535 U.S. 137 (2002) created some bad law when it held that the NLRB cannot award a backpay remedy to an employee who was not legally authorized to work in the United States. Since then employers have had a field day in cases where they "suspect" that an employee, seeking a remedy under the NLRB, federal or state anti-discrimination or civil rights acts, is not legally authorized to work. Employers have gone to town trying to uncover evidence that employees are not legally authorized to work, in the hope that they will, therefore, not have to pay up for their illegal actions.

Flaum Appetizing Corporation, 357 NLRB No. 162 (Dec. 30, 2011) has put some procedural brakes on this railroad by holding that an employer who claims that it need not pay backpay because an employee is not authorized to work in the U.S. cannot just make such a claim up out of whole cloth. The employer must set forth with specificity the basis for this defense. The opinion observed that, to hold otherwise, would permit a "fishing expedition", relying on its decision in Murcel Manufacturing Corp., 231 NLRB 632 (1977). The Board noted that allowing an employer to simply make a claim without any foundation makes no sense in light of the fact that it was the employer's obligation to begin with to verify the employability of the employee when hiring.

Flaum gives just a little love to undocumented employees, as well as to documented employees subject to stereotypes that they are not authorized to work because of their national origin.

Jody LeWitter
April 26, 2012

U.S. Supreme Court Comes Down on Side of Religious Organizations' Right to Discriminate

Thu, 19 Apr 2012 09:58:26 -0800

It isn't a great surprise that, when this U.S. Supreme Court jumped into the fray of cases determining when and under what circumstances a religious organization can discriminate against its employees, it favored the religious organization over the employee.

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. ___ (Jan. 11, 2012), the U.S. Supreme Court held that a judicial doctrine that lower courts have developed and entitled the "ministerial exception" prohibited an employee from bringing a claim for disability discrimination against the church. In particular, the Court held where the employer is a religious organization and the employee is a minister, there can be no claim for disability discrimination against the employer. The Court basically held that a religious organization is exempt from anti-discrimination law when it comes to its actions towards employees whom can be characterized as ministers. The Court relied upon the Free Exercise Clause, and found that this protected the actions of the church towards its ministers, regardless of the actions discriminatory intent.

Score one for religious organizations. However, it should be noted, that although this was the first time the United States Supreme Court spoke up on this issue, this holding has been already adopted by lower courts.

Jody LeWitter
April 18, 2012

Welcome to California: If you Work in California You are Entitled to the Protection of California's Right to Overtime and other Wage Laws Regardless of Where you Reside

Wed, 04 Apr 2012 09:00:00 -0800

I'm not so sure why so much attention has been paid to Sullivan v. Oracle, other than the case has been up and down and all around the court system. See, e.g., Sullivan v. Oracle, 51 Cal.4th 1191 (2011); Sullivan v. Oracle, 662 F.3d 1265 (9th Cir. 2011). The recent holdings (by the Ninth Circuit and California Supreme Court) that - if you work in the great State of California - you are entitled to the protections of California law including overtime and the prohibition against unfair business practices, seems rather ho-hum when you think about it.

I'm not sure what Oracle was thinking when it invited employees from other states to enjoy the sunshine in California, but then left them out in the cold when it came to the basic rights of our overtime law while working on our turf. If the courts permitted that type of conduct, wouldn't we just be encouraging employers to import cheap labor from Montana and Utah to do our work here in California? Talk about creating sweatshops right here in the golden state.

Let's look at Oracle's bold practices and inability to learn a lesson. Year after year, Oracle hired "instructors" to train customers on its products. Some of these instructors lived and worked in California; some lived and worked in other states; and some lived in other states but worked part of the time in California. Oracle classified these employees as "teachers," to make sure that these folks were exempt from overtime laws. Voila -employees worked overtime for no extra pay.

However, the employees had a better idea. They filed a class action and demanded overtime. Consequently, Oracle saw a bit of the light, and started paying its California instructors overtime under California law. Then, Oracle saw a bit more of the light, and started paying its instructors of other states overtime under federal law (the Fair Labor Standards Act, or "FLSA")for their time spent working in states other than California. Oracle held fast on its position for paying employees from other states overtime for their time spent working in California: no overtime for this! Non-California residents thus sued for the time they spent working in California, claiming they were entitled to the protection of California law while working in California, even if they were non-residents.

What did Oracle gain for holding out on this last issue? Hopefully a good lesson that it should have settled all its claims earlier on, rather than engaging in a torturous route through the entire court system including the California Supreme Court and the federal district and appeals court.

Both the California Supreme Court, in Sullivan v. Oracle, 51 Cal.4th 1191 (2011), and the Ninth Circuit, in Sullivan v. Oracle, 662 F.3d 1265 (9th Cir. 2011), ruled for the employees. They held that California law protects employees working in California regardless of the employees' residences in other states, and that this included the protection of California's Unfair Business Practices Act, Ca. B & P. Section 17200 et seq.

This case demonstrates that litigating a simple issue to death is not always the wisest idea!

Jody LeWitter

April 4, 2012

The NLRB Strikes a Blow in Support of Class Actions

Wed, 28 Mar 2012 09:40:50 -0800

On January 3, 2012, the National Labor Relations Board ("NLRB") ruled that an employer cannot prohibit its employees from vindicating their rights through a class action. D.R. Horton, 357 NLRB No. 184 (2012).

Employer D.R. Horton required that its employees enter into an arbitration agreement as a condition of employment. The agreement not only mandated that employees resolve their disputes with their employer through the arbitration process, but that they do so on an individual basis, directly banishing class actions of any kind or nature, with one swoop of the pen.

An employee of D.R. Horton claimed that D.R. misclassified its employees as exempt under the Fair Labor Standards Act ("FLSA") and sought to right this wrong through a class action. When D.R. Horton objected to the class action on the basis of its mandatory arbitration agreement, the employee filed an unfair labor practice charge with the NLRB, claiming that D.R. Horton's agreement violated employees' right to engage in concerted action pursuant to Section 7 of the National Labor Relations Act ("NLRA"). D.R. Horton responded that the Federal Arbitration Act's ("FAA") protection of the arbitration process basically trumped the NLRA's protection of the employee's right to organize.

The NLRB struck a blow for the employees, holding that an employer cannot bar employees from collective or class actions. This will not be the last word on this important subject. It can be expected that D.R. Horton or other employers will take this matter up in the courts, and claim that AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011) and the FAA trump the NLRA. Employers can already generally unfairly muscle employees into giving up their right to a jury trial; to require employees to give up collective actions in addition, is untenable. We hope that the courts side with the NLRB and the employees, and permit employees to show their collective muscle in class actions. Let's also hope that a fair legislative fix is on its way!

Jody LeWitter

March 28, 2012

Language of Arbitration Agreement Permits Court, not Arbitrator, to determine Whether Arbitration Agreement is Enforceable on Facts of this Case, and Court determines that Multiple Unconscionable Provisions Invalidate this Agreement

Wed, 21 Mar 2012 09:00:00 -0800

CantorCO2e's mandatory employment agreement was riddled with unconscionable provisions, errors, and bias. No wonder the California Court of Appeals decided that the court should determine the validity of the agreement and then determined that the agreement was not valid. Ajamian v. CantorCO2e, LLP, ___Cal.App.4th ___ (Feb. 16, 2012).

As part of employers' end run around employees' right to a jury trial, not only are employers making employees sign mandatory arbitration agreements, but they are trying to make the courts forfeit their right to even examine these agreements to see if they are illegal. Here CantorCO2e argued that its agreement does just that, but its agreement is so vague and unclear, and its arguments so tenuous, that the court rejected this proposition.

In order for an employer to take away the employee's right to have a court determine whether an arbitration agreement is valid, it must do so in a way that is "clear and unmistakable." Here, there are multiple reasons that the alleged attempt to take away these rights is not clear and unmistakable. It is important to note - for the future - that the court here limited its holding to the facts of this case, leaving employers multiple avenues by which they can strip a court of its right to judge the employer's arbitration agreement and give this right to the employer's hand pick and paid arbitrator. How this plays out in the future remains to be seen, but taking away a court's right to review this important matter is dangerous and should be remedied by legislation if necessary.

After finding that the court has the right to determine whether CantorCO2e's arbitration agreement was unconscionable, the court went ahead and found that it was unconscionable on a number of grounds:

1. Ajamian had no real bargaining power as Ms. Ajamian had already worked for the company for ten years and was required to sign the agreement to obtain compensation she had already been promised;

2. The agreement prohibited Ms. Ajamian from obtaining punitive or special damages which she might be entitled to under the law and permitted CantorCO2e to obtain liquidated damages, which are akin to punitive damages!;

3. The agreement mandated that New York law apply to this California employee without providing any apparent nexus to New York law; and

4. The agreement made Ms. Ajamian liable to the company for fees without making the company mutually liable to Ajamian for fees.

Courts need to stand up for employees' right to basic legal protection by a court of law, and, at the same time stand up for a fair, public, and egalitarian justice system, rather than a hidden private system of justice riddled with favoritism towards employers and companies. This case reached the right holding but could have done with a stronger voice for fairness!

Jody LeWitter

March 21, 2012

Another Arbitration Agreement Bites the Dust due to a Combination of Unconscionable Provisions

Wed, 14 Mar 2012 14:48:51 -0800

I know I've said this before, but if employers so relish their precious right to force employees to arbitrate all their claims, why can't they get it right and draft a simple arbitration agreement so that it is enforceable? Mayers v. Volt Management Corp.,__ C.A.4th___ (Feb. 2, 2012) is another example of an employer getting it wrong. For reasons any reasonable employer could have predicted, the California Court of Appeals struck down Volt's mandatory arbitration agreement.

Here Volt started out by providing its arbitration agreement to Mr. Mayers on a take-it-or-leave-it basis. Second, Volt failed to shed light upon the arbitration rules it required Mr. Mayers to follow should any case wind up in arbitration. Instead, it simply told Mr. Mayers that any arbitration would be governed by "the applicable rules of the AAA [American Arbitration Association]". Volt neither provided a copy of these rules to Mayers, nor did it tell him how or where to obtain such a copy himself. The court characterized these errors are procedurally unconscionable.

To top it off, Volt's arbitration agreement mandated that the arbitrator may award costs and attorney's fees to the prevailing party. If Volt had a lawyer, Volt would have known that this was an absolute no-no. The Fair Employment & Housing Act (FEHA) prohibits a court from awarding fees to an employer (for claims governed under the act such as covered employment discrimination or retaliation claims) unless the claims were frivolous, unreasonable and without foundation. Here Volt changed this standard of the law to favor the employer.

This case is a yawner - except it highlights - again - how employers just can't seem to play by the rules in their attempt to force arbitration agreements down their employees' throats!

Jody LeWitter
March 14, 2012

California Court of Appeals Reverses Retaliation Verdict using a Tortuous Analysis of What a Plaintiff Needs to Prove in a Retaliatory Termination Case

Tue, 06 Mar 2012 13:49:34 -0800

The California Court of Appeal overturned a $2 million dollar award to a Los Angeles police officer who it was admitted was fired solely because he complained of sexual harassment. Sounds like a good case? Too good for this court panel, which turned logic on its head in finding that it was legal to fire Officer Joaquin in retaliation for his filing a sexual harassment complaint. The Court found that, even though the jury found the plaintiff to be fired because he filed this complaint, that it wasn't illegal because an internal panel (known as the Board of "Rights") found that his complaint was false.

In this case, Officer Joaquin filed an internal charge of sexual harassment. His statement as to what happened certainly contains evidence that would permit any jury to find that he was sexually harassed. He recited how a Sergeant sexually harassed him, asked him on a date, and after Officer Joaquin told him he was not interested, continued to pursue him by, inter alia, following him around and making inappropriate comments, such as "you look nice standing there." Joaquin v City of Los Angles (Jan. 23, 2012) 202 Cal.App.4th 1207.

As stated above, Joaquin filed an internal complaint of sexual harassment. The Sergeant filed an internal complaint against Joaquin, and it took off from there with an Internal Affairs investigation, and a finding by a panel somewhat inappropriately labeled the "Board of Rights" (which consisted of two management level officer, who very well may have been biased and certainly weren't outside neutrals, and one community member). The Board of Rights determined that Joaquin had fabricated his claims. Joaquin disagreed with the Board's finding and filed a writ of mandate. The Superior Court, which heard the writ, agreed with Joaquin and ordered him reinstated. After that, Joaquin filed this action in court alleging retaliation. The jury not only found in his favor, but really found in his favor, awarding him $2 million.

Enter the Court of Appeals...The California Court of Appeals opened its discussion of the facts of this case by noting that, "This case has a somewhat tortuous procedural history." It is absolutely true that the case has a tortured history, but, as indicated below, it is the Court of Appeals reasoning that most truly is tortuous.

This case obviously involves issues of credibility. Joaquin claims sexual harassment and retaliation; his Sergeant claims that Joaquin made these claims up to avoid disciplinary action. One of them is lying. The jury is supposed to decide, after hearing the evidence and seeing the witness, who is lying and who is telling the truth, right? The Court of Appeals admits: "Actions for unlawful discrimination and retaliation are inherently fact driven, and we recognize that it is the jury, and not the appellate court, that is charged with the obligation of determining the facts." Nonetheless, the Court of Appeals turned this statement of the law - and logic- on its head by managing to reverse the verdict, usurping the jury's power, and pronouncing its own fact finding that Joaquin's claims were fabricated, even though obviously the jury believed the opposite!

The Court of Appeals laid the fault at the feet of the standard jury instructions on retaliation. These jury instructions require that a jury find "...that Richard Joaquin's reporting that he had been sexually harassed was a motivating reason for the City of Los Angeles' decision to terminate Richard Joaquin's employment or deny Richard Joaquin promotion to the rank of sergeant." The Court declared that these jury instructions were inadequate and furthermore that there was not enough evidence that Joaquin's termination was retaliatory. The Court went through a tortured analysis of what it considered to be the retaliatory intend necessary to find for a plaintiff, and in doing so ignored much of the law which clearly establishes that an employer may be responsible for retaliation when the decision maker or the decision making is tainted by others who harbor a retaliatory intent. See, Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95; Yanowitz v. L'Oreal (2005) 36 Cal.4th 1028. The Court of Appeals appears result driven; that is, driven to reverse this verdict.

The only solace that can be taken from the Court's overreaching and interference with the jury's determination is that, as said by the Court itself, this case was one involving "unique facts."

Jody LeWitter
March 6, 2012

Employee's Family Leave Claim Fails Where Employee Is on Leave Longer than Twelve Weeks, and Presented Insufficient Evidence

Thu, 16 Feb 2012 13:08:56 -0800

Ms. Rogers was a long term employee of Los Angeles County, serving as a personnel officer in the Executive Office, when she took a nineteen week medical leave of absence. When she returned to work, Los Angeles County notified her that she had been transferred to another position in a different department. Ms. Rogers considered this transfer to be a demotion, so she retired and filed a lawsuit alleging that her rights were violated under the California Family Rights Act (CFRA), California's version of the federal Family & Medical Leave Act (FMLA). Ms. Rogers alleged a claim for interference, noting that the County interfered with her right to take a medical leave by transferring her to a position that was not comparable to the position she held when she went out on her leave. She also claimed retaliation, arguing that the County retaliated against her for exercising her right to take a leave protected by CFRA. Rogers v. County of Los Angeles (2011) 198 Cal.App.4th 480.

The case went to jury, and the jury found in Ms. Rogers's favor on both claims, awarding her $356,000. However, that wasn't the end of the story. Unfortunately for Ms. Rogers, the Court of Appeal reversed the jury's award on both claims. First, the Court of Appeal found that, in order for Ms. Rogers to bring a claim for interference, in which she claimed that she should have been reinstated to the same or a comparable position, she needed to have taken a leave of absence protected by CFRA. Since CFRA provides for leaves of 12 weeks or less, simply put, her 19 week leave of absence left her flat out of luck on her claim for reinstatement or interference.

Then the Court of Appeal addressed Ms. Rogers's second claim, for retaliation. It held that the employer presented evidence that the transfer was part of an overall plan to reorganize the Executive Office. When the employer made the decision to transfer Ms. Rogers, she had only been on a leave of absence for one month, and there was no evidence that the decision maker was aware that the leave would be for an extended period of time. Although the trial court noted that the jury may have doubted the employer's motive, the Court of Appeal found that all the evidence was undisputed and that this doubt was not enough. In other words, the Court of Appeal voted for the employer on this issue based upon a lack of evidence.

This case should serve as a cautionary tale for employees who take family or medical leaves. First, if it is at all possible medically, return to work within the time frame protected under the statute, i.e. for CFRA or FMLA, twelve weeks. Second, with a CFRA retaliation claim - just like other retaliation claims - the more evidence of discriminatory motive or pretext there is, the more likely the retaliation claim will survive. And, remember, as with any other case, the trial judge or the appellate court, whether it should or not, may come in and act as the thirteenth juror and take away an employee's victory.

Jody LeWitter
February 16, 2012

Court Rejects Employer's Attempt to Reverse Finding of Sexual Harassment Based upon Allegation That Employee's Testimony Was Inherently Improbable

Tue, 27 Dec 2011 13:46:31 -0800

Autozone did not accept responsibility for the fact that its managers, and thus Autozone itself, were found guilty of sexual harassment, leading it to appeal the jury's verdict and claim that the plaintiff's testimony was somehow "inherently improbable." The California Court of Appeal was able to accurately discern that the vile and filthy conduct of Autozone's managers made plaintiff's work environment a living hell for three weeks, resulting in a just verdict of sexual harassment. Fuentes v. Autozone (Nov. 16, 2011, B224034) _ Cal.App.4th _ [11 C.D.O.S. 13926].

Poor Ms. Fuentes, a part time customer service representative, was just trying to do her job at Autozone. Her manager had the audacity to humiliate her by grabbing her and spinning her around in front of laughing customers, instructing her to, "show your butt to the customers and that way you can sell more." When the customers returned later that day, the manager went at it again, ordering Fuentes: "Get ready to turn around for them." The Court of Appeal accurately characterized this conduct as "humiliating Fuentes by exploiting her body."

To add insult to injury, when Ms. Fuentes developed a fever blister on her lip, the same store manager started a vicious set of graphic discussions about how Ms. Fuentes must have obtained the blister, and how it was really herpes. This led to another manager spinning the rumor further, telling a coworker, "Be careful where you put your dick at with Marcelo [Fuentes]," implying that this described conduct was the cause of her blister. Some of these discussions occurred in front of laughing customers and coworkers. Some were repeated back to Ms. Fuentes. Ms. Fuentes testified regarding how these comments humiliated her and how, because she was having problems with certain male customers, she was concerned for her safety as she walked home from work at night.

The jury found for Ms. Fuentes on her claim of sexual harassment. Autozone appealed the jury's verdict in Ms. Fuentes's favor. It tried to make a mountain out of a molehill, asserting that some minor inconsistencies in the testimony (such as the dates on which certain things happened or the specifics of exactly what happened between witnesses) made plaintiff's testimony "inherently improbable" and thus the verdict should somehow be reversed! The Court of Appeal rejected this pathetic attempt to avoid liability, noting that "The evidence in this case is not 'inherently improbable.' It presents a common situation where there are inconsistencies and contradictions in trial testimony . . . this is for resolution by the jury. We infer the jury credited Fuentes's testimony and the testimony corroborating it . . . ."

It is important to note that this opinion stands for the proposition that for conduct to be "severe or pervasive" as required by the current case law on sexual harassment, it need not be long term. The court specifically noted that the three week period over which Ms. Fuentes was mistreated was a sufficient amount of time. This court noted that the conduct in question was especially egregious because the manager used the plaintiff's body in a way that was physically humiliating, and that the herpes rumors unreasonably interfered with the plaintiff's ability to do her job.

The Court distinguished Ms. Fuentes's situation from that of plaintiffs in other cases where the courts found for the employer (e.g., the conduct was specifically aimed at Fuentes, distinguishing Lyle v Warner Brothers Television Productions (2006) 38 Cal.4th 264; the conduct involved a physical threat and/or plaintiff's immediate supervisor, distinguishing Mokler v. County of Orange (2007) 157 Cal.App.4th 121; the conduct was not a few specific incidents spread out over a period of years, distinguishing Haberman v. Cengane Learning, Inc. (2009) 180 Cal.App.4th 365).

What this court--and all courts, really--should have said is: whether or not there is a hostile environment is a question of fact based on a totality of the circumstances from the point of view of the female employee in this predicament, and that this question is for the triers of fact, not the judges who consistently wish to substitute their own opinions and fact finding for that of the jury. It is only in rare and unique circumstances that the court should move in and take this determination away from the jury. Courts cannot seem to help themselves from overstepping their bounds, demonstrating, time and time again, that the courts are still male dominated and biased, and that they still do not understand what it means to be a working woman who simply wants to be afforded the basic dignity of being treated as a peer and equal, in accordance to her work performance, rather than her perceived sexuality. Once the courts somehow finally understand this, sexual harassment claims will take their place as equal to other claims, the law will be less convoluted, and women will be provided with the protections they are entitled to under the law.

Jody LeWitter
December 27, 2011

Court Imposes Unnecessarily High Hurdle for Female Employee to Prove Sexual Harassment Claim in Brennan v. Townsend & O'Leary

Sun, 27 Nov 2011 13:27:06 -0800

In the arena of sexual harassment, we've come a long way, baby. In general, the public is more aware of what conduct is forbidden in the workplace, and many employers train managers and employees alike to prevent such conduct. As a society, we are much more likely to have work environments free from sexual harassment than we were when the U.S. Supreme Court first clearly defined sexual harassment hostile environment cases as illegal in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).

However, this progress should not make us close our eyes to inexplicable legal decisions where the courts simply don't seem to get it. First, there is the judicially created doctrine that a claim for sexual harassment must involve conduct that is "severe or pervasive." This judicial fiction can be used to permit abhorrent conduct in the workplace, and label it as "not sexual harassment." Second, the concept of "severe or pervasive" is, to put it mildly, a subjective concept subject to the decision maker's own bias or perspective. In particular, the bias of judicial gatekeepers, who throw out sexual harassment cases before they reach a jury or overturn jury verdicts finding the plaintiff was a victim of sexual harassment, keeps getting in the way. Judges can simply declare that the conduct isn't severe or pervasive enough and voilà, the plaintiff has not been harassed!

This leads me to comment on the recent case of Brennan v Towsend & O'Leary, ___Cal.App.4th___ (October 18, 2011). In Ms. Brennan's case the jury found that the employer created a hostile environment. The judge overturned the jury's verdict on a judgment notwithstanding the verdict (JNOV). The Court of Appeal agreed, claiming that the conduct was not, in its judicial opinion, severe or pervasive.

However, determining whether or not conduct is severe or pervasive is not an objective determination; it is in the eye of the beholder. Thus, we must ask: not severe or pervasive enough according to whom? The conduct in the Brennan case was severe or pervasive enough for the jury. The superior court judge originally let the evidence go to trial, suggesting at least initially that the judge must have thought it was severe or pervasive enough for the jury to hear.

So, let's look at the facts here, and you can vote yourself. The fact that readers may differ on whether the conduct was severe or pervasive is just my point: this is a jury question, not a gatekeeper question. I personally can't quite get over the fact that the trial judge and three Court of Appeal judges went out of their way to protect a manager who referred to the plaintiff in a corporate email as a "big-titted mindless one." This was not the only sexist language or conduct in the workplace. What about the company sponsored party where one of the owners wore a Santa hat with the word "bitch" printed across it? Or what about the owner who repeatedly questioned the plaintiff about her sex life, along with inappropriate hand gestures? And once Ms. Brennan complained, she was retaliated against. As noted in the dissent, although the retaliation was not sexual in nature, it was sex based.

I do believe that Ms. Brennan may have been in a better position if her complaint had included a claim for retaliation. However, that is no reason to second guess the jury's judgment and discretion. We think we know sexual harassment when we see it. How dare these four judges take away Ms. Brennan's verdict to justify their own personal and subjective beliefs that the environment wasn't hostile enough! We still have a long way to go, baby!

Jody LeWitter

November 27, 2011

Right to Administrative (Berman) Hearing before the Labor Commissioner under Attack in Light of Concepcion: Employee's Right to Jury Trial in the Cross Hairs of the US Supreme Court

Sun, 20 Nov 2011 16:04:41 -0800

The conservative US Supreme Court's activist agenda is in full throttle in the mandatory arbitration arena. In the AT&T v. Concepcion case (see prior blog of July 6, 2011), the US Supreme Court planted its thumb squarely on the employer's side of the scales of justice by overturning past law and holding that there is no per se invalidation of class action arbitration provisions (Concepcion is a consumer class action case). Now the US Supreme Court apparently wishes to tip the scales at the opposite end of the spectrum: by applying this class action holding to individual Berman hearings brought by California workers for the payment of wages. The US Supreme Court has reached out and vacated (as well as remanded) the California Supreme Court's holding in Sonic-Calabasas v. Moreno (2011) 51 Cal.4th 659. Why can't the US Supreme Court stay out of our backyard?
The holding which the US Supreme Court vacated was quite modest. It simply upheld an employee's right to a "Berman hearing" before the California Labor Commissioner, pursuant to California Labor Code, section 98, for the payment of unpaid wages. Berman hearings are a streamlined administrative procedure for employees to recover unpaid wages--including overtime, meal and rest period pay, and waiting time penalties--without having to go to court, allowing many employees who cannot afford a lawyer the ability to stand up for their workplace rights. The right to a Berman hearing protected by the California Supreme Court in Sonic-Calabasas was limited to the first instance only; the California Supreme Court permitted the employer to enforce a mandatory arbitration of the employee's next step appeal, which would have otherwise taken place in the superior court.
The US Supreme Court vacated this opinion in light of Concepcion. See, Sonic-Calabasas, Inc. v Moreno (October 31, 2011) No. 10-1450. Does the US Supreme Court really believe that this minor right to an administrative hearing in the first instance should be wiped out? Does it really believe that an employer has a right to hijack a benign administrative process to entitle an employee to obtain his or her basic wages?
The US Supreme Court ought to keep its tentacles out of California' s modest procedural apparatus for an employee to obtain his or her wages. It is downright hypocritical for the Court to pay lip service to states' rights when it serves conservative interests, and ignore states' rights when it might be used to protect an employee.
We can only hope that the California Supreme Court, on remand, stands its ground. This may be high hope given the recent argument before the California Supreme Court in Brinker Restaurant v. Superior Court, 85 Cal.Rptr.3d 688 (Oct. 22, 2008) (petition for review granted; case argued November 8, 2011), which addressed meal and rest break issues and in which all the justices uniformly appeared not to understand the fundamental role of the law in providing employees with basic rights, such as meal and rest periods.

Jody LeWitter

November 20, 2011

Nielsen's Summary Judgment Reversed in Age Discrimination Case where Younger Employees - even if over the age of 40 themselves - Treated More Leniently for Committing Similar, but not Identical, Violations and Nielsen Failed to Follow its own Procedures

Tue, 18 Oct 2011 15:46:22 -0800

Nielsen Media Research convinced the district court to grant summary judgment in this age discrimination case, and the district court held that plaintiff, Ms. Earl, failed to prove that Nielsen's actions were a pretext for discrimination. Earl v. Nielsen Media Research, Inc., --- F.3d ----, 2011 WL 4436250 (9th Cir. Sept. 26, 2011). Nielsen measures television program audiences. Ms. Earl was a recruiter, whose job was to recruit certain households to permit Nielsen to install television monitoring devices on their premises. Nielsen fired Ms. Earl, age 59, claiming that after a dozen years of work, she violated company policy by failing to verify the home address of a recruit. Ms. Earl had also previously violated policies, which had resulted in her placement on a Development Improvement Plan (DIP), but nonetheless, she received a good performance review and was never placed on the more serious Performance Improvement Plan (PIP).

Earl appealed the granting of summary judgment and claimed that circumstantial evidenced established that her firing was a pretext for age discrimination. The Ninth Circuit agreed, primarily relying on the fact that similarly situated younger employees were treated more leniently. In doing so, the Ninth Circuit provided a more practical and plaintiff-friendly definition of "similarly situated employees" (including what constitutes similarly situated conduct), making it more difficult for defendants to slice and dice the conduct in question and claim that the comparative younger employees were not really similarly situated.

The Earl v. Nielsen case rejected the notion that to be similarly situated the (younger) employees in question have to violate the exact same policy or commits the exact same transgression. Looking at factors such as whether the policy serves the same purpose and is of comparable seriousness, the Court counseled for the use of a "common sense" approach. Here the younger comparators signed up houses that did not meet Nielsen's criteria, whereas Earl's recruits met the criteria but she recorded an incorrect address. The Court found that these were comparators as they were similarly situated and/or committed similar transgressions. The court rejected the notion that the conduct of the comparators must be identical.

The Court also clarified that substantially younger employees can include employees who are themselves within the protected class, that is, employees who are over 40 years of age. Where Ms. Earl was 59 years old, a 42 year old was substantially younger for purposes of the age discrimination.

Lastly, the Court addressed the question of whether failure to follow company policies and procedures provides evidence of pretext, holding that it does. The Court found that plaintiff presented sufficient evidence to suggest that company policy and procedure required the institution of a PIP, not just a DIP, prior to termination. Thus, the fact that Ms. Earl was put on a DIP prior to her termination, rather than a PIP, was a violation of company policy which serves as further evidence of pretext. The Court did note that, regardless of whether Ms. Earl presented sufficient evidence that company policies and procedures required a pre-termination PIP, since the company said it did so for a younger employee, the evidence clearly demonstrated that younger employees were treated more leniently. This itself was an alternative grounds for establishing pretext, the pretext being that that younger employees were treated more favorably, regardless of whether company policy or procedure so required it.
This case warns wayward lower courts not to toss out discrimination cases by making their own findings regarding "motivation and intent," instead of leaving these fact intensive questions where they should remain, shall remain and hopefully always do remain: with the fact finder, and preferably the jury.

Jody LeWitter
October 18, 2011

A Reasonable Accommodation May be Required Regardless of Whether an Employee is Found To Be 100% Disabled under the Workers Compensation System

Mon, 19 Sep 2011 20:12:46 -0800

Mr. Cuiellette was a police officer employed by the City of Los Angeles. Due to an on-the-job injury, he was no longer able to perform the duties of a field officer. He filed a workers compensation claim and was rated 100% disabled. The City reassigned him to a light duty desk job, which he could perform. When the City realized that Mr. Cuiellette was rated as 100% disabled, it promptly ended his light duty assignment and sent him packing.

Mr. Cuiellette sued, claiming disability discrimination. He claimed that, regardless of the workers compensation disability rating for his officer job, he could do the essential elements of his light duty desk job. The jury agreed, resulting in a $1.5 million judgment, and an appeal. Cuiellette v City of Los Angeles, 194 Cal. App. 4th 757 (April 22, 2011).

The California Court of Appeals upheld the verdict. It declared that a "rating received in the worker's compensation proceeding was not, as a matter of law, a legitimate nondiscriminatory reason for an employer's adverse employment action." Indeed, an employer must engage in the interactive process, and carefully analyze whether an employee can perform the essential functions of his or her job, or other vacant jobs, with or without a reasonable accommodation, regardless of any disability rating. Here, in particular, the Court noted that the City of Los Angeles had a policy and practice of permitting injured employees to perform desk jobs on a long term basis. Thus, it was inappropriate to require that Mr. Cuiellette prove that he could perform the essential elements of his field job, rather than his desk job.

There are quite a number of employers out there that refuse to engage in the interactive process when an employee is found to be mostly disabled by the workers compensation system. The court Cuiellette established that this is wrong. In addition, Cuiellette makes clear that, in at least some instances, a temporary job may be as good as a permanent one. It is important for employees to be aware of their independent rights under the Fair Employment & Housing Act and the Americans with Disabilities Act when they become disabled, and to hold the employer accountable for fully and faithfully engaging in the interactive process.

Jody LeWitter
September 19, 2011