In Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., 575 U.S. ____ (2015), the United States Supreme Court delivered the straight-forward rule that employers “may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

In this case, Abercrombie refused to hire a young Muslim woman named Samantha Elauf to work in one of its retail clothing stores because Ms. Elauf wore a headscarf. Abercrombie suspected that Ms. Elauf wore the headscarf in observance of her Muslim faith and simply did not want to accommodate the headscarf, claiming that it would violate the company’s “look policy” (which forbade employees from wearing “caps”). When the EEOC sued Abercrombie on behalf of Ms. Elauf for failing to make a reasonable accommodation for her religion, the company defended its actions by arguing that it did not “actually know” that the headscarf was a religious practice – it merely suspected that it was a religious practice. In other words, Abercrombie made the absurd argument that even though it actually believed the headscarf was a religious practice and the headscarf was indeed a religious practice, the company should nevertheless be allowed to discriminate against Ms. Elauf because Ms. Elauf did not specifically tell the company that the headscarf was a religious practice.

Luckily, the U.S. Supreme Court did not buy Abercrombie’s argument. The Court’s decision makes it clear that employers may not make employment decisions that are “motivated” by someone’s actual religious beliefs or practices, nor can it refuse to make reasonable accommodations for such religious practices, by simply claiming that the employee (or job applicant) never explicitly confirmed the company’s suspicions regarding their religious beliefs or practices.

Nevertheless, if you are an employee who needs a religious accommodation, you may be better off making your need clear to the employer so that the employer cannot later claim that it had no idea you needed an accommodation. If you need advice or information about requesting a religious accommodation, you may need to consult with an employment attorney.

June 11, 2015 Heather Conger

In a blow to those employees who suffer from stress and anxiety caused by abusive employers, a California Court of Appeals has determined that “an employee’s inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job performance does not constitute a mental disability” under the California Fair Employment and Housing Act.

In Higgins-Williams v. Sutter Medical Foundation 14 C.D.O.S. 5245 (2015), the Plaintiff worked as a clinical assistant for Sutter Medical Foundation for nearly three years when her doctor diagnosed her as having “adjustment disorder with anxiety” and further reported that her disabling condition was “stress when dealing with her Human Resources and manager.” Plaintiff took a medical leave and as soon as she returned, her manager gave her a negative performance review (the first negative review she received at Sutter). On her second day back at work, Plaintiff’s manager grabbed her arm and yelled at her and Plaintiff suffered a panic attack as a result. Plaintiff’s doctor put her on another medical leave.

Plaintiff then requested, as a reasonable accommodation for her disability, to transfer to a different department so that she could work under a different supervisor and manager. Although Plaintiff and her doctor repeatedly reported to Sutter that she could return to work in a different department under a different manager, Sutter instead chose to extend her medical leave and eventually terminated her employment rather than accommodate her with a transfer.

Plaintiff sued Sutter claiming, among other things, that Sutter discriminated against her on the basis of her disability (adjustment disorder with anxiety) and failed to reasonably accommodate her disability. The Court of Appeals decided that Plaintiff could not pursue her claims because she did not have a “disability” under the California Fair Employment and Housing Act.

In coming to its decision, the Court emphasized that Plaintiff’s only claimed disability was stress and anxiety caused by “standard oversight of plaintiff’s job performance.” This is an important point of emphasis for any employee who claims to need an accommodation due to a mental disability.

If you are a California employee and you have a mental disability that is caused by something other than “standard oversight of performance,” you may still be entitled to an accommodation, which could include a job transfer. Therefore, you may want to consult with an employment attorney to find out whether you are entitled to a reasonable accommodation at your job.

June 3, 2015 Heather Conger

Weaving v. City of Hillsboro, 763 F.3d 1106 (2014), involved an Oregon police officer who claimed he was terminated because of his disability, ADHD (Attention Deficit Hyperactivity Disorder). The jury found for Officer Weaving, however the Ninth Circuit took his verdict away, claiming that ADHD may have limited his life functions of working and/or interacting with others, but it did not “substantially” limit those life functions.

It is a pity for Officer Weaving that he didn’t work in the State of California, where a disability is defined by statute as “limiting” rather than “substantially limiting” a life function. California employees can certainly argue that ADHD is a disability because of this difference. California employees should always file a charge with the Department of Fair Employment and Housing (the DFEH, the California state agency governing employment discrimination and/or have the Equal Employment Opportunity Commission (the federal agency) cross-file the claim with the DFEH.

December 9, 2014 Jody I. LeWitter

Plaintiff Thomas claimed that her employer retaliated against her because she exercised her free speech rights and spoke out on matters of public concern. Thomas v. County of Riverside, 763 F.3d 1167 (2014).

The lower court dismissed her case, characterizing her claims as “petty workplace gripes”. Ms. Thomas claimed that her employer retaliated against her by removing her from an unpaid position, removing her from a teaching assignment, and denying her a previously granted vacation.

Discussing the importance of First Amendment rights, including the fact that these rights might be chilled by the types of retaliatory actions the County of Riverside took against Ms. Thomas, the Ninth Circuit reversed the dismissal of the case, emphasizing the importance of free speech for public employees.

December 2, 2014 Jody I. LeWitter

Franchise relationships are growing and need to be regulated. It is important to make both the franchisor and the franchisee responsible for the companies they create and/or run and/or set up. According to California Law, a franchisee is granted the right to engage in a business under a plan or system set up by the franchisor (think McDonald’s where 80% of its restaurants are operated under franchise agreements, with 20% operated as a chain).

The California Supreme Court put its thumbs on the wrong side of the scale of justice by letting Domino’s Pizza off the hook for sexual harassment because it was a franchisor. Patterson v. Domino’s Pizza, 60 Cal.4th 474 (2014). Nonetheless, it is important that any victim of sexual harassment or wrongful conduct look carefully at the franchise contract and the conduct of the franchisor and franchisee before determining whether or not to sue a franchisor.

The California Supreme Court found that, on the facts of this case, Domino’s didn’t have control or the right to control hiring/firing/discipline/employment policies and practices, and thus wasn’t responsible for the sexual harassment of Ms. Patterson. The Court declared that since Domino’s doesn’t have the right to control, or actual control, over these things, an employee can only sue the franchisee for sexual harassment. In reality, the Court decided it just didn’t want to make the franchisor responsible – regardless of the facts or the law.

In every case involving a franchise relationship, it is important that employees and their lawyers look carefully at all the facts involving the right to control. Some cases have gone the opposite way of Patterson. For example, Nichols v. Arthur Murray, Inc., 248 Cal.App 2d 610 (1967), concluded that the franchisor had the right to control day-to-day operations including employment relations. It came out the opposite of the Patterson case because of the specific facts regarding the franchisor’s “right to control” the franchise.

It is also important to ask whether the franchisor actually exercised control and/or acted as a joint employer. As noted by the dissent in the Patterson v. Domino’s case, the franchisor did exercise control, and did act as a joint employer. It did so by regular inspections and threats that it could revoke a franchisee’s status. It went so far as to “strongly hint[ed]” that certain employees should be fired.

Just because the California Supreme Court made a bad decision doesn’t mean that employees should give up on making a case for franchisor liability.

Jody LeWitter
November 20, 2014

Can one even imagine that FedEx would so boldly claim that its drivers are independent contractors rather than employees because it lacks sufficient control over the drivers’ work? Really? Walk the streets anywhere and you’ll see the ubiquitous FedEx driver, in the exact same trucks, wearing identical uniforms and delivering packages in the exact same manner.

It is hard to even dream that FedEx would claim these folks aren’t entitled to the protections of employment status. But they did. In order to save a buck, FedEx came up with an elaborate justification to claim their employees aren’t employees.

FedEx claimed and claims that because they make these drivers buy their own trucks and scanners, pay for their own uniforms, and work whatever hours are necessary to get FedEx’s work done, the drivers aren’t employees. They claim that because they require their drivers to sign contracts saying they are independent contractors, that they are independent contractors. They claim just because they say FedEx can’t control the “manner or means” of getting the job done, regardless of what they do, that these drivers are independent contractors.

But the US Ninth Circuit Court of Appeals, in Alexander v. Fed Ex Ground Package System, 765 F.3d 981 (2014) was able to clearly distinguish between what FedEx says and what it actually does. Yes, the drivers have to buy their own trucks, but the trucks have to be exactly as required by FedEx. Yes, the drivers have to buy their own uniforms, but it has to be, well, a FedEx uniform. And FedEx says the employees have freedom to determine how to do their job, but really, they don’t. FedEx keeps tight control on exactly what these FedEx drivers do day in and day out, down to how they interact with customers and how they look.

The history of this case should make these FedEx drivers exceedingly happy that they live in the Golden State of California. This is because there were numerous class action cases against FedEx, and the courts consolidated them into multi-district litigation, where they were heard before the US district court in Illinois. There the court tossed the cases out, ruling for FedEx, that because FedEx said these drivers were independent contractors, and because FedEx claimed that the contractors had “significant entrepreneurial opportunity”, the drivers were independent contractors.
On appeal, however, the Ninth Circuit held that the lower court in Illinois was wrong, under California law, explaining that traditional California law holds that if the employer has the right to control the means and methods of work, then these folks are employees. No smoke and mirrors can make it different.

There are so many instances out there where employers try to get away with providing less to their employees by calling them independent contractors. At least in California, this case is a strong strike for the rights of working people.

Jody LeWitter
September 19, 2014

In a partial victory for California workers, the State’s highest court ruled, in Salas v. Sierra Chemical Co. 59 Cal.4th 407 (2014) that employers cannot get away with violating California employment laws just because they find evidence, after being sued, that their mistreated employees did not have proper authorization to work in the United States.

Mr. Salas had worked for Sierra Chemical Company in California for a number of years when he injured his back on the job. The company had regular seasonal layoffs during the winter months and typically hired back its workers when business picked up in warmer months. However, after Mr. Salas injured his back on the job and filed a worker’s compensation claim, Sierra refused to hire him back until he could prove that he no longer needed an accommodation for his back injury. Mr. Salas filed a lawsuit against Sierra for unlawful employment discrimination and retaliation under the California Fair Employment and Housing Act, claiming that Sierra refused to accommodate his physical disability and refused to rehire him in retaliation for having filed a worker’s compensation claim.

Almost two years after refusing to rehire Mr. Salas, and just before the case was set to go to trial, Sierra found evidence that Mr. Salas had used someone else’s social security number when he applied for the job many years ago. The company argued that this information provided a complete justification for throwing his lawsuit out of court. Fortunately, the California Supreme Court disagreed, ruling that an employer cannot completely escape from liability just because it later finds evidence, after a lawsuit is filed, that the employee it discriminated against was undocumented. The Court explained that employers would otherwise have a powerful incentive to hire undocumented workers, or “look the other way” when hiring employees they suspect to be undocumented, because they would be able to violate any number of California’s employment laws (including minimum wage laws, child labor laws, and anti-discrimination laws) and get away with it if any of their undocumented employees ever sued to enforce the law.

In reaching its decision, the California Supreme Court examined both federal immigration law and California employment law. The Court determined that since employers are not allowed to intentionally hire undocumented workers under federal law, the State cannot require an employer to pay lost wages to the employee for the time period after it learns of the employee’s undocumented status. (The state also cannot force an employer to reinstate an undocumented employee.) However, in order to help police and enforce California’s employment laws, the State can require employers to pay for other financial damages incurred as a result of its unlawful acts, including back pay for the time period before it finds evidence of an employee’s undocumented status. In other words, if employers violate the California’s employment laws, they can still be forced to pay their employees large financial awards even if they later find evidence that their employees did not have proper work authorization.

August 6, 2014 Heather Conger

In the Iskanian v.CLS Transportation Los Angeles, LLC decision, the California Supreme Court addressed the enforceability of employer-employee arbitration agreements in various circumstances. Iskanian v.CLS Transportation Los Angeles, LLC, 59 Cal.4th 348 (2014). The case delivered some good news – but mostly bad news – for employees and attorneys who represent employees.

First, as to the bad news: Boxed in by the United States Supreme Court’s decisions on the enforceability of arbitration agreements, including in AT&T Mobility LLC v. Concepcion, 131 S.Ct. 1740 (2001), the California Supreme Court upheld the validity of class action waivers in employment arbitration agreements. The California Supreme Court overruled its previous decision in Gentry v. The Superior Court of Los Angeles, 42 Cal.4th 443 (2007) as preempted by the Federal Arbitration Act (“FAA”).

The California Supreme Court also addressed the recently developed and powerful argument that class action arbitration waivers are invalid under the National Labor Relations Act (“NLRA”), which provides workers with a right to collective organize and advocate for their rights as a group. That argument gained traction with the National Labor Relations Board (“NLRB”) in its recent decision in D.R. Horton. Inc., 357 NLRB No. 184 (2012), but unfortunately the California Supreme Court sided with the Fifth Circuit’s contrary opinion in D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013). The California Supreme Court held that the NLRA was no obstacle to the applicability of the FAA to support the enforcement of class action waivers in arbitration agreements.

There is a silver lining to every cloud, and the Court’s decision in Iskanian provided one. The Court held that an employer-employee arbitration agreement cannot provide for a waiver of employees’ rights to undertake a representative action under the California Private Attorneys General Act (“PAGA”), as that would violate public policy. The Court held that the FAA did not mandate a contrary result, while explaining that “a single-claimant arbitration under the PAGA for individual penalties will not result in the penalties contemplated under the PAGA to punish and deter employer practices that violate the rights of numerous employees under the Labor Code. That plaintiff and other employees might be able to bring individual claims for Labor Code violations in separate arbitrations does not serve the purpose of the PAGA, even if an individual claim has collateral estoppel effects.” In so holding, the Court also explained that PAGA does not violate the principle of separation of power under the California Constitution.

There are several interesting things to think about moving forward after this case. As an initial matter, it remains to be seen as to whether this will result in employers inserting more arbitration agreements in employment contracts and handbooks. The reason is that, although the United States and California Supreme Courts have made it easier for employers to do so, employers still need to be careful for what they wish for. Experience has demonstrated that arbitrations are costly for the employer, and they don’t always come out the way the employer expects it to. For example, our firm has had excellent outcomes in arbitrations, including seven figure awards and awards of punitive damages.

Moreover, while Iskanian gives employers a new stick to enforce certain arbitration agreements, employees and their advocates faced with an arbitration agreement should not give up and lose hope because (1) arbitration agreements are still subject to challenge on unconscionability grounds (Iskanian did not change that), (2) PAGA provides at least some stick to enable employees to enforce their rights in “representative” actions, and (3) there are positive sides to an arbitration agreement. There is a positive side to arbitration agreements for employees because the employer generally has to pay the arbitrator’s costs if the employee wins, there is no real appeal so the employer has to pay up quickly, and the arbitration can be quicker and less expensive for the employee.

We also all need to keep tabs on whether the U.S. Supreme Court decides to hear this case to address its holdings.

July 15, 2014 Benjamin Siegel

In Thursday’s unanimous Lane v. Franks decision, the Supreme Court decided that public employees are protected from retaliation when they testify in court about misconduct they observe on the job. Lane v. Franks, 134 S.Ct. 2369 (2014).

Edward Lane was a director of a program for underprivileged youth operated by Central Alabama Community College (CACC). As the director, he conducted an audit of the program’s expenses and found that an Alabama State Representative, Susan Schmitz, was on the payroll even though she was not doing any work for the program! Mr. Lane terminated Ms. Schmitz’s employment and soon thereafter, Ms. Schmitz was indicted on mail fraud and theft charges. Mr. Lane testified against Ms. Schmitz about why he fired Ms. Schmitz and Ms. Schmitz was ultimately convicted.

After he testified, Mr. Lane, along with 28 other employees were terminated. But a few days later, CACC’s president Steve Franks hired back everyone other than Mr. Lane and one other employee. Mr. Lane filed a lawsuit claiming that Mr. Franks had violated his First Amendment rights by firing him in retaliation for testifying against Ms. Schmitz.

Prior cases have called into question when First Amendment protections apply to public employees. In determining whether a public employee is protected under the First Amendment, courts first determine whether the employee spoke as a “citizen” on “a matter of public concern.” It was not Mr. Lane’s job to testify against Ms. Schmitz – he merely learned about the corruption she was involved in through his job. The Court rightly determined that testimony in a court proceeding is a “quintessential example of citizen speech.” The Court also decided that Mr. Lane’s testimony about “corruption in a public program and misuse of state funds” was clearly a matter of public concern. Finally, the Court decided that the CACC did not have any justification for treating Mr. Lane differently.

The Supreme Court’s ruling means that public employees who witness corruption at work will no longer be in the “impossible position” of being “torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.” Now public employees who learn about corruption or criminal activity on the job and testify about that unlawful conduct are still protected by the First Amendment. Even though this case applies specifically to First Amendment protections for public employees, the Court emphasized the importance of whistleblowing and the value of encouraging this type of speech which will likely have ramifications for both public and private sector employees.

This is a win for public employees and the public at large who have a shared interest in exposing corruption in government.

July 7, 2014 Jean Krasilnikoff

As Mr. Ventress learned the hard way – after three trips to the Ninth Circuit – it is tough to sue an airline for safety violations and/or termination for reporting safety violations.

Mr. Ventress claimed he was retaliated against as a flight engineer because he reported safety concerns. The case took three trips to the Ninth Circuit. In the first appeal, Ventress v. Japan Airlines (Ventress I) , 486 F. 3d 1111 (2007), the Ninth Circuit held that the Friendship Commerce and Navigation Treaty did not bar or preempt Mr. Ventress’ claims. In the second trip to the Ninth Circuit, it held that the Airline Deregulation Act did not bar or preempt Mr. Ventress’ claims. Ventress v. Japan Airlines (Ventress II), 603 F.3d. 676 (2010).

However, Mr. Ventress wasn’t so lucky on his third journey to the Ninth Circuit, which held that Mr. Ventress’ public policy/safety claims were barred by the Federal Aviation Act (FAA). The Court held that the claims would require the jury to decide safety questions that are governed by the FAA which occupies the field of aviation safety. Ventress v. Japan Airlines (Ventress III) 747 F.3d 716 (2014).

Although not a good outcome for Mr. Ventress, this is a fairly unique outcome limited to industries whose safety is carefully and extensively regulated by the federal government, such as the airline industry. Others should not be deterred from bringing state law public policy claims if, for example, fired for reporting a safety or other public policy concern.

June 27, 2014 Jody LeWitter
Public Policy