Articles Posted in Retaliation

Just ahead of the bill-signing deadline in October, Governor Newsom signed several worker-friendly bills including AB 51, AB 9, SB 142, and AB 749.

When an employment situation sours and an employee pursues his rights, usually at some point there is talk of settlement.  Almost routinely, employers include a no-rehire provision in any settlement agreement which prohibits the former employee from seeking reemployment with the employer. While this may not seem like a big deal if you work for a small company and have no intention of seeking reemployment with the same people who wronged you in the first place, for individuals who work for large employers, the no-hire provision can create significant hardship. For example, if you work for a major retailer with numerous locations and you are terminated, a no-rehire provision might prevent you from working for that company ever again, in any capacity. That means, even if you wanted to work for a store 100 miles away, you would be barred from doing so. This is particularly problematic for long-term employees who have deep knowledge of the employer’s policies and practices and have been successful in their positions for years- they know the job, and have done it well, and now they are unable to apply for any future job at the company where their skills are a perfect match. This is also a significant problem for people who work for a utility; it may be that there is really only one employer in the area you can work for and a ban on working for that company will prevent you from working, period. The no-rehire provision would require you to either move to a new location or develop skills for an entirely different field. It seems, to many employees, like a final act of retaliation by their former employer.

Starting January 1, 2020, employment dispute settlement agreements cannot contain a no-rehire provision and such provisions are void as a matter of law and public policy. There is an exception, undoubtedly inspired by the #MeToo and #TimesUp movements- if an employer has made a good faith determination that the terminated employee engaged in sexual harassment or sexual assault, the employer may prohibit or restrict the terminated employee from obtaining future employment with the employer.

As employers across the country reckon with the impacts of the #MeToo movement, the California legislature and Governor Newsom took decisive action to extend the statute of limitations on certain workplace claims, acknowledging that those who have been targeted by discrimination, harassment, and retaliation do not always come forward immediately.

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

For years, the battle over arbitration clauses and agreements has raged on in courts and legislatures throughout the country. The latest development in arbitration in employment in California came on Thursday in California when Governor Newsom signed AB 51. The governor’s approval of AB 51 is a victory employees throughout California- it effectively prohibits employers from forcing employees into mandatory arbitration agreements starting January 1, 2020.

It is common practice throughout California to have an employee sign an arbitration agreement at the time she is hired. These agreements are generally non-negotiable, buried in a pile of new hire paperwork, and require the employee to arbitrate any claims arising out of employment. While valid arbitration agreements provide some of the safeguards that are afforded to litigants in court, it often takes away basic protections and rights including a trial by jury, and class or collective action. Arbitration is also a private process so it allows an employer to keep their wrongdoing under wraps.

The United States Supreme Court has said, repeatedly, that arbitration agreements are valid in the employment context. Recognizing the inherent imbalance in power between employers and employees, several states have tried to stop employers from forcing employees into arbitration. However, given the Supreme Court’s rulings, it is impossible to ban arbitration in employment altogether.  The hope is that in California, AB 51 will even the playing field before an employee signs an arbitration agreement; requiring that an employee can only enter such an agreement voluntarily. The law also prohibits an employer from retaliating against an employee who declines to enter into an arbitration agreement, which provides additional protection.

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.

In good news for victims of sex harassment and retaliation, and especially for same-sex victims, Lewis v. City of Benicia, 224 Cal.App.4th 1519 (2014) reinstated many of the claims against the City of Benicia and one of its supervisors.

First, the California Court of Appeals made clear that the trial court overstepped its bounds when it dismissed a sexual harassment claim. Following the U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the court held that same-sex harassment which included sexual comments intended to humiliate the plaintiff due to his gender identity constituted sexual harassment. It reversed the lower court’s ruling that the harassing conduct was not sufficiently “severe or pervasive” to constitute sexual harassment. It found that several months of a course of conduct of gifts and lunch purchases, sexual jokes, and pornographic computer images, was sufficient to bring a claim for sexual harassment.

On the other hand, the Court of Appeals dismissed a sexual harassment claim against another supervisor whose only conduct was showing computer pornography to a group of employees once or twice, and making an occasional joke.

Sometimes courts raise the bar on sexual harassment claims too high. Whether the sexual harasser’s conduct is “severe” or “pervasive” enough to go to trial often seems to be determined by the subjective lenses of the judges. The judges’ lenses are often colored by their own life experience. Certainly whether a judge is a “he” or “she” may impact the analysis. Although here in Westendorf v. West Coast Contractors of Nevada, Inc. 712 F.3d 417 (9th Cir 2013), the three judge panel, including a female judge, all found against Ms. Westendorf’s sexual harassment claim. Judges ought to walk a mile in the shoes of the victims of this offensive conduct, and they might not be so quick to declare that the conduct isn’t severe or pervasive enough. I guess the judges weren’t as offended as I was by all the talk about breasts and orgasms.

However, the same panel of judges did understand that Ms. Westendorf’s claim for retaliatory termination should go forward, holding that there was a material fact as to whether she was fired because she complained of the crude and offensive remarks.

So, for Ms. Westendorf, the glass is half empty or half full, depending on the perspective!!

Dr. Naiel Nassar was employed by the University of Texas Southwestern Medical Center as a faculty member and staff physician. Dr. Nassar, who is of Middle Eastern descent and practices Islam, claimed that one of his supervisors was biased against him on account of his ethnic heritage and religion. As a result, he resigned his faculty position, but continued working as a staff physician.

After resigning, he sent a letter complaining that the reason he resigned was due to his supervisor’s “religious, racial and cultural bias against Arabs and Muslims.” Based on this complaint, the Hospital withdrew his job offer. Dr. Nassar filed a Title VII lawsuit claiming, among other things, retaliation. The jury found for Dr. Nassar and the Court of Appeals for the Fifth Circuit affirmed the retaliation verdict. (The jury also found for Dr. Nassar on his discrimination/constructive termination claim. The Court of Appeals reversed on that issue. That claim was not before the Supreme Court). However, the University appealed to the Supreme Court to decide what type of causation a plaintiff must prove in a retaliation case.

In Title VII discrimination cases, a plaintiff only needs to show that his discrimination was a “motivating factor” in the decision to terminate him. The “motivating factor” standard acknowledges that even though there may be legitimate factors in deciding to take an adverse employment action against an employee, if the employee shows that discriminatory animus was one of the motivating factors, he has met his burden.

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.

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 Angeles (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.

Dr. Jadwin sued his employer, Kern County, in federal court, for placing him on administrative leave in retaliation for his complaints about patient care and other violations. This underlying federal case subsequently resulted in a verdict of over $500,000.00 to Dr. Jadwin.

Instead of heeding the warning of being particularly careful not to retaliate, or appear to retaliate, against an employee with a pending claim, the County of Kern threw caution to the wind and sued Dr. Jadwin in state court, claiming that the good doctor filed a false claim for $3125 in expenses. Fresno’s claim against Dr. Jadwin was assigned to mandatory arbitration where Dr. Jadwin prevailed. After a variety of inappropriate maneuvering by the County, the State Court ruled that Fresno’s claim was frivolous and brought to harass Dr. Jadwin.

The Court of Appeals, in County of Kern v. Jadwin (July 5, 2011) — C.A. 4th — –, 2011 WL 2611819, affirmed the finding by the trial court that the case was frivolous and upheld the trial court’s award of $50,000.00 in attorney’s fees. The Court of Appeals agreed with the lower court that the facts “‘paint a picture . . .’ of a lawsuit filed and maintained for the purpose of harassing Jadwin.”

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