Bay Area Employment Lawyer Blog

The Perils of Refusing to Sign for Receipt of a Disciplinary Notice are Underscored in this Unemployment Insurance Appeal

Published on: June 26, 2012 | Siegel LeWitter Malkani

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.

Even Though Employers Have A Significant Advantage Over Employees in Selecting A Forum – Such as Arbitration – Employer who Hides the Ball Unfairly Takes Advantage of Its Position

Published on: June 22, 2012 | Siegel LeWitter Malkani

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!

Employee Walks Through an Issue Preclusion Thicket by Bringing Claims in Multiple Forums Including Arbitration, Grievance and Mandamus as Well as Multiple Lawsuits

Published on: June 18, 2012 | Siegel LeWitter Malkani

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.

Doctor/Medical Group Partner Who Complains About Sexual Harassment of Employees is Protected Against Retaliation

Published on: June 6, 2012 | Siegel LeWitter Malkani

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.

California Supreme Court Places Responsibility for Sexual Harassment Squarely with School District That Knew or Should Have Known That Its Employee Would Sexually Harass a Student

Published on: May 30, 2012 | Siegel LeWitter Malkani

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.

California Supreme Court’s Grant of Review of Class Action Ruling on the Use of Statistical Evidence Could be Good News for Class Action Plaintiffs

Published on: May 25, 2012 | Siegel LeWitter Malkani

On May 16, 2012, the California Supreme Court granted review of Duran v. U.S. National Bank (USB) (2012) 203 Cal. App 4th 212. In that case, a class of bank employees won an award of $15 million for unpaid overtime. The award was based on a variety of evidence which included a random sample of employees, and statistical analysis from an expert.

The Court of Appeals reversed the award, holding that the statistical sampling violated the bank’s due process rights.

Now the California Supreme Court has granted review of the case, presenting some hope to the class of bank employees that the Court will take a fresh look at the evidence presented at trial. In addition, all class action employees and lawyers will keep their eyes peeled for a potentially important ruling on the use of statistical evidence in a class action wage and hour case. Stay tuned!

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

Published on: May 9, 2012 | Siegel LeWitter Malkani

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.

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

Published on: May 7, 2012 | Siegel LeWitter Malkani

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.

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

Published on: April 26, 2012 | Siegel LeWitter Malkani

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.

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

Published on: April 19, 2012 | Siegel LeWitter Malkani

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.