Bay Area Employment Lawyer Blog

Employers shouldn't have such a tough time figuring out whether and when an employee is eligible for a protected leave of absence under California law (California Family Right Act - CFRA) or federal law (Family and Medical Leave Act - FMLA). This case is a prime example of the mishaps - here unremedied - that occur when an employer doesn't understand and accurately convey the law to an employee, leaving the employee, Mr. Olofsson, in an unfortunate lurch. Olofsson v. Mission Linen Supply (2012) 211 Cal.App.4th 1236

Mr. Olofsson worked as a driver for Mission Linen Supply. His parents lived in Sweden and he had previously received time off to visit his parents in Sweden. When he learned his mother was scheduled for back surgery, he asked for seven weeks off to return to Sweden and care for her. He made his request approximately one month before his leave was to begin.

In response, the company acted like he would receive his family leave after he submitted the right paperwork and everything was squared away. He was assigned to train a temporary employee to cover for him while he was out.

Three days before his leave was to start - with his mother scheduled for surgery in Sweden - Mission Linen all of a sudden told him that he was not eligible for family leave because he lacked the requisite 1250 hours of work in a year. No one had even suggested to him that he was short on hours, and there was no reason the company couldn't have told him this earlier. Indeed, the law requires that the employer determine whether or not the employees have met the hours requirement "within a reasonable amount of time". And state law defines this as 10 days, a standard clearly breached by Mission Linen.

Since Olofsson wasn't eligible for family leave, he sued his employer for wrongful termination in violation of public policy and estoppel. Finding for Olofsson under one of these theories is the least the Court could do - but it didn't.

The Court held that Mission Linen did not misrepresent - verbally or by its actions - that his leave was approved. The Court of Appeals here relied upon the trial court's fact finding on this issue, and thus this case should not be read to establish a blanket bar against an estoppel claim where an employer leads an employee to believe that he is entitled to family leave. The Court went off on facts that could be its version of balancing the equities in an estoppel case. Mr. Olofsson didn't submit his paperwork in the most speedy manner himself, and the paperwork he did submit had to be checked out.

The Court also found, in a somewhat disingenuous manner, that the employer's duty to respond to the employee's leave request in 10 days was met, even though the response wasn't a clear "yes" or "no".

What happened to the public policy claim isn't clear from the opinion, but it couldn't have been anything good for Olofsson.

Justice wasn't served in this case where an employee lost his job because his employer put him in a tough spot - unfairly forcing him to choose between his mom and his income. Employers should do better, and so should the courts.

April 26, 2013
Jody I. LeWitter

California has good law for employees regarding the admission of evidence that the employer discriminated against other employees, commonly referred to as "me too" evidence. Case law is clear that an employee can submit evidence that the decision maker discriminated against another employee on the same basis for which the employee claims discrimination. See Pantoja v. Anton (2011) 198 Cal.App.4th 87 (employee claiming gender discrimination can submit evidence that decision maker harassed and made sexist comments towards other female employees, Johnson v. United Cerebral Palsy (2009) 173 Cal.App.4th 740 (employee claiming pregnancy discrimination can submit evidence of discrimination against other employees).

The reason this "me too" evidence is admissible is because it demonstrates the intent or motive of the decision maker or wrongdoer. It may also cast doubt upon the employer's stated reason for the termination or other employment action.

Along comes Hatai v. Department of Transportation (March 3, 2013) ___Cal.4th_____, which casts a slightly different variation on the same theme. It also cautions employees and their lawyers to be exceedingly careful on how they plead a claim of discrimination, if they want to submit "me too" evidence.

Mr. Hatai's complaint alleged that he was discriminated against due to his national origin (Japanese) and his race (Asian). However, as the case proceeded, Mr. Hatai sought to argue that his supervisor, who was of Arab descent, discriminated against all employees who were not of Arab descent. As such, he sought to introduce "me too" evidence that other employees were discriminated against because they were not of Arab descent.

The company objected to the evidence, stating that the employee was "...repositioning the case." The trial court prohibited the employee from introducing this evidence, simply stating "[t]hat's not what you said in your complaint." Mr. Hatai's lawyers protested that the supervisor in question stated that "We Arabs should stick together", and sought to introduce evidence as to how a number of non-Arab employees were treated.

The Court of Appeals agreed with the employer in a scathing opinion, taking Mr. Hatai to task for providing "highly inconsistent" deposition testimony. It held that since Mr. Hatai's complaint alleged discrimination based on his race/national origin as an Asian and/or Japanese, how a variety of employees who were not Asian and/or Japanese were treated was not relevant.

The cautionary tale here is to be careful how you plead your case. If Mr. Hatai had originally pled his case to allege an alternative basis for discrimination as discrimination because he was not an Arab, perhaps the Court would have permitted this "me too" evidence.

The second cautionary tale is to be careful about presenting consistent and credible evidence: Throughout almost every line of this opinion, it is clear that the Court was indignant about a variety of inconsistent and possibly less than credible positions, and that this unduly influenced the Court's holding. If the Court had sympathy for Mr. Hatai, it could have simply permitted him to amend his complaint, or construed his complaint more broadly, rather than in the narrow and technical manner it did.

Bad facts here made for bad law, and both the employee and the Court need to take some responsibility for this here. Moving forward, employees should still seek to introduce "me too" evidence, and to plead their claims as broadly as possible.

Jody I. LeWitter
April 19, 2013

Mr. Richey worked as a sales manager at a Toyota dealership. He suffered a back injury while moving furniture at home, and applied for family leave from Toyota. The leave was granted, but Mr. Richey was fired because his employer alleged that he was abusing his family leave by working in a family restaurant he owned while on his family leave. Mr. Richey contended that his work at his restaurant while on leave was limited, light-duty work, and that he really could not do his regular duties at the Toyota dealership. Richey v. Autonation, Inc., 210 Cal. App. 4th 1516 (2012)

When Toyota fired Mr. Richey, Mr. Richey evoked his rights under a mandatory arbitration agreement that Toyota required that he sign as a condition of his employment. After an 11 day hearing, the arbitrator ruled against Mr. Richey on his interference claim, i.e. his claim that Toyota interfered with or denied his right to family leave under the California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA). The arbitrator held that the employer was not liable because it terminated Mr. Richey's employment because it honestly, but mistakenly, believed he misused his family leave.

Mr. Richey moved to vacate the arbitrator's award, noting two things: (1) under both state and federal law, an honest mistake based on the employer's state of mind is not a defense, and; (2) an arbitrator's error of law that results in a denial of a party's unwaivable statuatory right (in this instance his right to family leave) exceeds the arbitrator's power and should be vacated.

The trial court ruled against Mr. Richey, but he didn't give up, appealing to the California Court of Appeals, which agreed with Mr. Richey - explaining at length that an interference with family leave claim does not require that an employee prove that his or her supervisor had a discriminatory state of mind, like other discrimination claims. Indeed, interference claims are unique; if an employer wrongly denies family leave, it doesn't matter if the employer was mistaken or honest or didn't harbor a discriminatory motive. An employee is entitled to his or her family leave, and the employer must simply understand and follow the law. This is a very important point for all employees and the employer to understand.

The Court of Appeals also delved into the issue of when and whether to overturn an arbitrator's award. While overturning this award, the Court was careful to note that not every arbitrator's mistake of fact or law warrants the overturning of an arbitrator's award. However, when the ruling results in the denial of an employee's non-waivable statuatory rights created by FEHA, the arbitrator's award exceeded the arbitrator's power and should be vacated. This is an important door to keep open for employees. Although other cases have made this point before (see, for example, Pearson Dental Supplies, Inc. v. Superior Court, 48 Cal.4th 665 (2010)), it is important that the Courts reiterate this point so that employees - who may be compelled to arbitrate a claim under the Fair Employment and Housing Act or other civil rights statutes - understand that arbitration may not be their last stop on the road to seeking justice in the legal system.

Jody I. LeWitter
April 2, 2013

Ana Fuentes Sanchez took a pregnancy disability leave of absence while working for Swissport, Inc. When she exhausted her four months of leave mandated by the Pregnancy Disability Leave Law (PDLL) she was still unable to return to work because of the nature of her high risk pregnancy.

Swissport terminated Ms. Sanchez after the expiration of her four month leave of absence, contending that it had provided her with all that the law required under the PDLL.

But Ms. Sanchez asked what about the other provisions of the Fair Employment & Housing Act? Doesn't Govt. Code § 12940(m) require that an employer provide a reasonable accommodation to a disabled employee? (Yes.) Wasn't Ms. Sanchez - due to her high risk pregnancy - a disabled employee? (Yes.) And isn't it true that a leave of absence is, under the law, a reasonable accommodation? (Yes, again.) And - last but not least - can't a reasonable accommodation consist of a leave of absence greater than four months? (Yes! See Hanson v. Lucky Stores (1999) 74 Cal.App.4th 215, 227 ; andWatkins v. Ameripride Services (9th Cir. 2004) 375 F.3d 821, 828-829).

So wasn't it about time for a published case to declare that - if not an undue hardship on the employer - a disabled pregnant employee should be entitled to more than four months of a pregnancy related disability leave?

This is just what the Court held in Sanchez v. Swissport (2-21-13) ____ Cal.App.4th______ . The Court explained that the pregnancy leave law was meant to supplement, not limit or displace, other provisions of the Fair Employment and Housing Act.

Good for the Court! Good for Ms. Sanchez! And great news for everyone else, including pregnant women, all women employees, and their families!

Jody I. LeWitter
March 27, 2013

The case of Veronese v. Lucasfilm, Ltd. (2012) 212 Cal.App.4th 1, is replete with lessons to be learned on all fronts, especially lessons about how to navigate through the process of instructing the jury in an employment discrimination jury trial, and dealing with implicit or unspoken bias, here from a judicial panel. The lawyers representing employees must be careful not to overreach in the instructional arena, and make sure the jury instructions given accurately reflect the law. Everyone should be aware that paternalistic notions (here by an all-male appellate panel) may influence the outcome of a case, whether by jurors, lawyers, or judges.

With all that said - let's take a look at the Veronese case. The facts are a little hard to follow, as they involve a lot of personal dialogue and soap opera-like scenarios. Ms. Veronese applied for a job with Lucasfilm, but the position had almost nothing to do with the film industry. The title was assistant to the manager of Lucas' home, and appeared to involve a lot of household management and childcare.

The statement of facts relate a fairly lengthy set of drawn out and intricate conversations and emails throughout a terribly over-analyzed and detailed hiring process, during which Ms. Veronese finds out and announces she is pregnant with twins, the hiring manager discusses every possible feeling she has about children, pregnancy, and both sides - frankly - say and write a lot of things that are capable of multiple interpretations.

Both sides go back and forth about the job and the hiring process, asking for and receiving accommodations, trial jobs, and frankly TMI ("too much information"). In the end, the whole deal falls apart, Lucasfilm hires someone else, and Ms. Veronese sues for pregnancy discrimination.

After quite a bit of discovery, the case goes to trial on multiple claims, and Ms. Veronese is awarded $113,830, and her attorneys $1,157,411 (a relationship between client and attorney compensation that generally makes no lawyer or client happy).

The case is appealed. The Court of Appeals reverses the award and remands the case for retrial, holding that there are multiple instructional errors.

The Court of Appeals opinion reads as if the three (male) judges simply did not like the jury's determination, and let their own opinions, intentionally or unintentionally, influence the outcome, resulting in a reversal of the jury award. Now, this is not to suggest that the trial court record was pristine, as it was rather messy, but the opinion itself makes some mighty bad law, replete with comments that would make any feminist's blood boil.

For example, there was a lot of testimony at trial about whether Lucasfilm's manager was simply showing caring and concern towards a pregnant applicant/ employee carrying twins, or was making employment decisions based upon the fact that Ms. Veronese was pregnant with twins, something the employer clearly could not do under the law. There is no doubt that there was a fact dispute here and that the jury believed the employee's version of the facts. However, the Court of Appeals, citing instructional errors, reversed on multiple grounds. In its haste to reverse, it made some law it ought not to have set down in a precedential opinion.

For example, because the manager wrapped her "concerns" in a coat of I'm-only-thinking-of-you (and the baby), the employee's lawyer requested a jury instruction stating, "A potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination." While the three-man (sic) panel admitted that the jury instruction accurately reflected the law, it held that the instruction was given in error, based upon a distinction without a difference: the case law supporting such an instruction dealt with a policy, whereas this case dealt with "only one 36-year-old pregnant woman who had already miscarried one twin." This was the panel's so-called legal justification for ignoring U.S. Supreme Court law. The panel might have just as well 'fessed up to the fact that it was simply uncomfortable with the law, and therefore was refusing to follow it.

The Court of Appeals also declared a variety of other jury instructions as erroneous and prejudicial. For example, it declared that it was error to refuse to give the employer's requested instruction on "business judgment." A business judgment instruction would have instructed the jury that it couldn't hold the employer liable for discrimination if the decisions weren't discriminatory, but were rather based upon the non-discriminatory business judgment of the employer. Although giving this instruction wouldn't have hurt anyone, failing to give it didn't hurt anyone either, and thus wasn't prejudicial. It was just another reason to justify reversal of the judgment.

There were other jury instructions that the Court of Appeals cited as justifying reversal of the verdict. Which brings us to one of the lessons that can be learned from this opinion, whether well reasoned or not. One lesson for employees and their counsel is that convincing a judge to give you the most employee-friendly jury instruction isn't always the best strategy. It may leave the verdict vulnerable to reversal or appeal. Making sure the jury instructions look like they accurately and neutrally reflect the law may be a wise strategy for protecting a verdict over the long run.

Jody I. LeWitter
February 22, 2013

For years now in California, juries have been instructed that a plaintiff in an employment discrimination case under California law must prove that discrimination was "a motivating reason" or "a motivating factor" in the wrongful employment decision. See, for example, Mixon v. Fair Employment & Housing Commission (1987) 192 Cal.App.3d 1306. This has been essential black letter law in California's fight against discrimination, and was incorporated into standard jury instructions given in most cases throughout California. See, for example, Judicial Council of California, Civil Jury Instructions, No. 2500.

Although federal law for a while has gone through several iterations of a judicially carve out for employers (a "free day for discrimination" type of defense) called a mixed motive defense, our California state law has not. At times federal law gave employers a free ride where an employer discriminated, but could prove that it would have taken the same action anyhow. Price Waterhouse v. Hopkins (1989) 490 U.S. 288. That law was amended by statute, splitting the baby, so that there is a cause of action in this situation but damages are limited to injunctive relief and attorneys fees, which is not much solace to the employee who faced this discrimination. 42 U.S.C. Section 2000e-5(g)(2)(B).

The California Supreme Court just made a mixed up jumble of this mixed motive law in Harris v City of Santa Monica (2013) 13 C.D.O.S. 1516. In a somewhat tortured analysis, it slopped and slid through the law, without a lot of clarity as to what exactly are the changes it intended to make. Its holding was and should be limited to a mixed motive case - i.e. a case where the employer can prove both illegitimate (discriminatory) and legitimate reasons motivated the decision. In that case it held that a plaintiff must prove that discrimination "was a substantial motivating factor" in the decision, the employer must then prove that it would have made the same decision in any event, and if so, the plaintiff is entitled to only injunctive relief and attorney's fees and costs, as with federal law.

However, when repeated that a plaintiff must prove that discrimination "was a substantial motivating factor", it left this standard floating out there, possibly suggesting it meant to apply this newly created standard to all cases, not just mixed motive cases. Why would the California Supreme Court do that? It relied on law related to causation, but the standard California jury instructions already state that the conduct "was a substantial factor in causing plaintiff's harm" so the jury already knows that. CACI 2500(6). And when the Court describes what "a substantial motivating reason" is, perhaps it isn't any different that "a motivating reason", but who can tell based on this opinion? The opinion promotes lack of clarity instead of providing clarity! Add mud and stir, so thanks a lot, Supremes!

Jody LeWitter
February 15, 2013

Statistical evidence, layoffs, and age discrimination cases can be tough. Take the situation facing Schechner and Lobertini in their case against KPIX-TV. Both were television news reporters who were laid off in an across the board budget reduction. They brought a lawsuit in federal district court against KPIX-TV, alleging that they were laid off based on their age and gender.

Schechner and Lobertini put forward substantial statistical evidence that they hoped would convince a jury that their selection for layoff was discriminatory. Their lawyers hired a statistician who determined that there was a statistically significant correlation between the age of the employees and their selection for lay off.

Both the district court and the court of appeals found that the employees had not met their burden of proof and dismissed the case on summary judgment. Schechner v. KPIX-TV, 686 F.3d 1018 (Ninth Cir., May 29, 2012). Although the Ninth Circuit clarified that statistical evidence can be used to meet an employee's prima facie burden of proof in a discrimination case and that the burden of proof is "minimal," it still ruled against the employees in this case. The Ninth Circuit noted that the same managers who made the decision to lay off Schechner and Lobertini also made the decision to renew their employment contracts shortly beforehand and thus the TV station was entitled to the "same-actor infererence."

This case does not really change the laws on age discrimination and indeed, it can be used to support the proposition that statistical evidence is a valid methodology to prove discrimination. However, this case is also a cautionary tale that each case must be determined on its own facts, and sometimes courts rule in ways that are unexpected - making factual decisions and interpretations that are better left to the jurors.

Jody I. LeWitter
September 7, 2012

Sometimes reading a U.S. Supreme Court case really makes you wonder whether the courts forget to enforce the intent of our anti-discrimination laws. Take the case of Coleman v. Maryland Court of Appeals 132 U.S. 1327 (March 20, 2012), contrast it with the Supreme Court's prior holding in Nevada Department of Human Resources v. Hibbs 538 U.S. 721 (2003), and scratch your head.

Hibbs looked at whether the Family Medical Leave Act (FMLA) applied to and protected state employees and held that it did. The facts in Hibbs involved an employee taking family leave to care for a family member with a serious illness. The Supreme Court held that Congress, when passing the FMLA, intended to let a state worker sue its employer in federal court under FMLA (i.e., it meant to abrogate the Eleventh Amendment ban against suing a state in federal court.) In other words, state employees should be entitled to a family leave just like everyone else.

One would think that Coleman - examining basically the same question - would come out the same. Not so. In Coleman, the Supreme Court held that if the family leave is for the state worker's own serious health condition, Congress didn't intend to let the state worker sue. So in Coleman, the Supreme Court says state workers don't get the same rights to family leave as does everyone else.

According to the U.S. Supreme Court, it is okay to take a family leave to care for a family member but not for yourself. With a family member, perhaps you can find someone else to care for him or her, but for yourself - well - you're just out of luck.

I don't want to leave anyone interested in the Court's rationale for distinguishing the two situations without further explanation. The Court held that since caring for family is seen as - and primarily is - women's work, it would constitute sex discrimination and that is why the state should allow a state worker to bring a claim. As to caring for oneself, the Court came up with a series of justifications that could provoke eye rolling. Suffice it to say the Court just didn't want to allow the claim.

My conclusion is one I reach over and over again when examining federal statutes: thank goodness the state of California has its own law to protect employees - here, the California Family Rights Act. Don't forget to use it - state employees and all!

Jody LeWitter
August 27, 2012

Pulli v. Pony International (June 19, 2012) ___ Cal.4th____ is another interpretation of an arbitration agreement in a long line of cases interpreting whether or not an arbitration agreement is enforceable. The fact that this case even exists underscores the fact that the law on the enforceability of arbitration agreements is unnecessarily murky and that employees continue to balk at the inherent unfairness of arbitration agreements, which take away an employee's right to a jury trial.

In this case, the California Court of Appeals held that, as a procedural matter, a defendant waives its right to have an arbitrator determine the issue of arbitrability where the defendant acted in a manner inconsistent with the right to arbitrate and substantially invoked "the litigation machinery" per Saint Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 by addressing the employee's claim on its merit, rather than by simply asking that the matter be sent to arbitration. This ruling makes sense - as the employer was asking the court to rule for two bites of the apple: let the court rule, and if it didn't like the court's opinion, then take it to an arbitrator.

Second, the Court of Appeals held that on the merits, an arbitration agreement is not invalidated by Labor Code §206.5's prohibition against requiring that an employee sign a release for the payment of wages without paying the wages in question. The Court noted that, as a matter of statuatory interpretation, the goal of Labor Code §206.5 is to prohibit the coercion of settlement of wage claims without the actual payment of the wages, but that Labor Code §206.5 did not bar an employer from requiring (or coercing, really!) the waiver of a jury trial.

Jody I. LeWitter
August 16, 2012

Generally speaking, exhaustion of administrative remedies is an unnecessary hurdle for an employee to jump over on his or her way to court when filing a discrimination, harassment or retaliation claim. Rickards v. UPS (June 19, 2012), ___Cal.App.4th ___ is just another case demonstrating this same point.

Mr. Rickards had a claim for discrimination against his employer, UPS. The first hurdle in an employment case in the State of California is generally to file a charge of discrimination with the California Department of Fair Employment & Housing ("DFEH")(depending on the circumstances, an employee may instead file with the Equal Employment Opportunity Commission, and ask that the claim be cross filed with the DFEH). For an employee who has a lawyer and intends to sue, there is generally no productive reason to file such a charge, except that failure to do so may be a fatal flaw in the subsequent lawsuit.

The Department of Fair Employment & Housing set up an online process by which a lawyer can file a charge of discrimination online for an employee. According to the DFEH, this process is set up for employees who have lawyers. As part of the filing, the employee (or lawyer!!) fills out an online form and moves from screen to screen including a screen that acknowledges that the signature is "...under Penalty of Perjury". Previous case law had already established that an attorney may verify a charge of discrimination with the DFEH on behalf of the client. Blum v. Superior Court (2006) 141 Cal.App.4th 418.

So when Mr. Rickards' attorney filed his charge online with the DFEH, what could the problem be? UPS acknowledged that the attorney could sign on behalf of the client, but claimed that - due to the nature of the online system - the attorney didn't really "sign". UPS was living in the past, or at least hoping that the court was living in the past. UPS tried to argue a fine technicality claiming that the lawyer needed to use ink, or maybe fountain pens, in order to create a signature.

Relying on the Uniform Electronic Transactions Act (Civil Code § 1633.1 et seq.) the California Court of Appeals rejected this position and held that no physical signature was necessary.

Although the use of the administrative process can be helpful for an employee, especially where he or she doesn't have an attorney, or doesn't intend to go to court, there is no reason to make an employee jump through unnecessary hoops to get his or her day in court!

Jody LeWitter
August 1, 2012

What can I say about this case except it should be a lesson to employees to sign for the receipt of a disciplinary action when required to do so by your employer, or face the wrath of a disingenuous and biased court of appeals like Mr. Medeiros did in Paratransit, Inc. v. Unemployment Insurance Appeals (Medeiros) (June 15, 2012) __ Cal.App.4th__.

Let's do what the court did not do, which is look at the facts. Mr. Medeiros was presented with a disciplinary action document by his employer. His employer demanded that he sign the document in the meeting with his employer representatives. He refused to sign it and cited a number of reasons.

Paratransit and Mr. Medeiros' union had negotiated a memorandum of understanding that required that employees sign disciplinary notices when presented to the employees but explicitly required that "the notice states that by signing, the Vehicle Operator is only acknowledging receipt of said notice and is not admitting to any fault or to the truth of any statement in the notice." Fair enough! However, the notice presented to Mr. Medeiros did not include this required language. It stated "Employee signature as to receipt". Perhaps this meant the same thing as required by the union contract, but it sure wasn't clear and it should have been reason enough for Mr. Medeiros to wait to sign the agreement.

However, this Court of Appeals was on a rampage, attacked Mr. Medeiros' credibility with a vengeance, declaring that he lied, and determining that he should have signed the disciplinary action and because he hadn't, denying him unemployment. What was the real harm in his refusal to sign right on the spot? Shouldn't the employer have given him the opportunity to consult his union rep and then sign? Why didn't the employer offer to clarify the language so that the employee understood that he wasn't admitting he agreed with the disciplinary action? Why in the world would any court deny an employee unemployment because he refused to sign a disciplinary notice on the spot, given the standard for denial of unemployment benefits is "misconduct"?

The lesson to be learned? Although your work situation and rules may certainly be different, it is a safe practice to sign for receipt of a disciplinary notice when requested to by your employer, whether you agree with the merits of the disciplinary notice of not. Second, if the form does not so indicate, write something on it such as "I am signing simply to acknowledge receipt of this notice, and do not agree with the content", or something to that effect. The third and final lesson to be learned is that some court and some rulings simply are wrong, mean-spirited and disingenuous. You really have to shake your head at the two (out of three) judges who signed their names to this opinion!

Jody LeWitter
June 26, 2012

Alright - enough already! The courts really give employers every unfair opportunity to require their employees to "agree" to arbitrate their disputes. But even the courts agree that employers can't be allowed to hide what they are doing! Take Empire Today LLC (also known as Flooring Install). Their management should be ashamed of themselves.

Empire employs lots of carpet installers, and lots of them are not well educated (at least in terms of reading 11 pages of single-spaced legalese) and for many, the English in which their employment agreements are written is not their first language.

So you probably get the drift here. Empire tells its non-English speaking employees that they must sign an 11 page, single-spaced, complicated and obtuse legalese document, in order to get the job. And, they must sign pretty much all of their rights away, and it was made clear to them that there was no room for other options or changes to the contract. Oh - and this arbitration provision was buried in paragraph 36!

Mr. Samaniego signed. Later, when he determined he wasn't being paid fairly, he sued on behalf of himself and others similarly situated (i.e. he filed a class action). Samaniego v. Empire Today LLC, ___Cal.App.4th____ (April 5, 2012).

Empire claimed Mr. Samaniego had agreed to arbitrate any claims he had against Empire. The Court of Appeals disagreed, and there is little wonder why. Empire's agreement was a mastery of hide the ball:

1. The arbitration agreement was in the 36th paragraph;

2. The agreement to arbitrate didn't say what the terms of the agreement were - just referred to the commercial rules of the American Arbitration Association, but did not attach them;

3. The agreement was a mind-numbing 11 page single-spaced document;

4. The agreement was incomprehensible to the average installer, and perhaps the average lawyer, chocked full of legalese. Even if an installer wanted to read it, Mr. Samaniego's first language wasn't English and he was far from fluent in English, and;

5. The agreement was one sided, because declaratory and injunctive claims (i.e. claims an employer might bring) could be brought in court rather than arbitration.

Arbitration agreements signed before a dispute arises - i.e. with hiring or routinely in the course of employment - just aren't fair. Employees are taken unfair advantage of. They need a job, so they'll sign anything, especially an incomprehensible 11 page agreement. They aren't going to hire a lawyer to read this arbitration agreement, just like they won't hire an accountant to read their W-4 or tax documents. They will sign what they must in order to go to work and collect a paycheck. The court made the right decision by finding this arbitration agreement unfair and unenforceable. The government should put an end to these oppressive agreements!

Jody I. LeWitter
June 20, 2012

I understand the desire of an employee (or employee's attorney) to exhaust all avenues to contest the wrongful discriminatory and/or retaliatory termination of an employee, but White v. City of Pasadena __F.3d___ (9th Cir Jan 17, 2012) is a prime example of why such a shotgun approach can be shortsighted and dangerous.

Ms. White was a police officer with the City of Pasadena. White was diagnosed with multiple sclerosis, but continued to do her job. The City then fired her, claiming she was associating with a known drug dealer and lied about it. Officer White, through her union's grievance process, arbitrated her termination and she was reinstated to her position as a police officer.

Instead of letting "good enough" alone, Officer White filed a lawsuit in state court (White I), claiming the City of Pasadena harassed and discriminated against her based upon her disability. The jury found for the City, the California Court of Appeals upheld the verdict, and the California Supreme Court refused to review the ruling.

While White I was pending on appeal, the City fired Officer White a second time. Here, there was some evidence that White had attempted suicide, which Ms. White denied. The City investigated and found that she had attempted suicide and that she had lied about it. Ms. White contested her termination through the administrative process, where the City Manager found for the City. Ms. White again took this to the courts, filing a writ of mandamus in state court (White II), which she lost. She appealed to the California Court of Appeals, and again lost.

Finally, Officer White filed a third lawsuit in state court, alleging that the City discriminated against her, harassed her, violated 42 USC §1983, as well as her first and fourteenth Amendment rights (White III).

The defendant removed the case to federal court, as the case contained federal rights. The federal district court held that officer White's claims were barred because of issue preclusion.

The Ninth Circuit upheld this ruling in a fairly convolutive manner, holding that all of the claims brought in White III had been litigated effectively and were precluded by either White I or White II.

This case is a prime example of why employees and their lawyers should think before they litigate. I did not agree with all the reasoning of the Ninth Circuit here (for example, I don't agree that the White II administrative record was neutral enough to count for issue preclusion, because a City Manager isn't a neutral fact finder, and I also don't agree that White I and White III litigated the same issues - how could they, as White III contested the second firing, which hadn't occurred by the time of the jury trial in White I? And litigation decisions can be more difficult with public employees who face a variety of administrative procedures. However, there are lessons to be learned here: be extra careful to decide - on a case by case basis - whether and in what forum to contest a termination. If Officer White had simply accepted the first reinstatement rather than suing after she had been put back to work, she wouldn't have had the White I record to weigh her down.

There is no black letter law for when to use administrative or grievance procedures and when not to use them. A lot may depend upon the facts of the case, the particular procedure available and memorandum of understanding. However, it goes without saying that a strategic analysis of whether or when to do so is always necessary.

Jody I. LeWitter
June 18, 2012

Protection from retaliation when an employee complains about or blows the whistle on sexual harassment, or other discriminatory conduct, is an important right for California employees. This right is found in the Fair Employment and Housing Act § 12940 (h).

Dr. Fitzsimons found out just how important this right was when she reported sexual harassment of employees of California Emergency Medical Physicians Medical Group (CEP), and found herself demoted. She sued, claiming retaliation.

CEP defended the case by claiming that Dr. Fitzsimons was a "partner" (one of 700 emergency physicians working for CEP and labeled as a partner) rather than an employee, entitled to the protection of FEHA. At trial, the jury found that Dr. Fitzsimons was a partner, and therefore, the trial court ruled against her.

Dr. Fitzsimons appealed claiming that, even if she was a partner, she still shouldn't be retaliated against for reporting sexual harassment.

The Court of Appeals agreed, finding that since the statutory language said it protected "any person", rather than just employees, it would thus protect partners against retaliation, as long as the partner was retaliated against for protesting conditions involving employees, here the sexual harassment of employees. Fitzsimons v. California Emergency Physicians Medical Group ___CA 4th___ (May 16, 2012).

Since many entities call those who really seem to be employees "partners," this important case opens the door to an alternative theory of retaliatory termination. Retaliation plaintiffs, who may be considered partners, where the facts warrant it, should allege that they are employees and, in the alternative, are persons who complained about the rights of employees under the Fair Employment and Housing Act.

Jody I. LeWitter
June 6, 2012

Although this is not an employment case, C.A. v. William S. Hart Union High School District, 53 Cal.4th 861 (March 8, 2012) is a sexual harassment case, and as such, important to employees, employers and employment lawyers.

School districts, like employers, have - under some circumstances - avoided legal responsibility for sexual harassment. Courts have declared that the school district and employer may not be liable for the sexual assault/harassment because the sexual harassment is outside the course and scope of the employee's job duties. See, for example, John R. v. Oakland Unified School District (1989) 48 Cal. 3rd 438.

In this case, the California Supreme Court clarifies that a school district cannot escape liability for sexual harassment where its personnel knew or should have known of the employee's misconduct and failed to take reasonable steps to prevent it. This ruling is very important to protecting girls (and boys) from sexual harassment in schools.

Employment law in California has a similar standard. An employer is responsible for sexual harassment by its managers and supervisors. See, Kelly-Zurian v. Wohl Shoe Co. (1994) 22 Cal.App.4th 397 ("harassment by a supervisor is unlawful regardless of whether the employer knows or should have known"). An employer is also responsible for the sexual harassment by a co-worker if - as is the case above - the employer knew or should have known of the misconduct of the co-worker. Here - as in C.A. v. William S. Hart School District - liability attaches because the employer and/or school district fails to properly hire or supervise, and improperly retained this employee.

This type of accountability makes the world - both schools and workplaces - a better place.

Jody I. LeWitter
May 30, 2012