Bay Area Employment Lawyer Blog

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

Published on: April 4, 2012 | Siegel LeWitter Malkani

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

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

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

The NLRB Strikes a Blow in Support of Class Actions

Published on: March 28, 2012 | Siegel LeWitter Malkani

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

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

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

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

Published on: March 21, 2012 | Siegel LeWitter Malkani

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

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

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

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

Published on: March 14, 2012 | Siegel LeWitter Malkani

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

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

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

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

Published on: March 6, 2012 | Siegel LeWitter Malkani

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.

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

Published on: February 16, 2012 | Siegel LeWitter Malkani

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

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

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

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

Published on: December 27, 2011 | Siegel LeWitter Malkani

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

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

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

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

Published on: November 27, 2011 | Siegel LeWitter Malkani

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

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

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

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

Published on: November 20, 2011 | Siegel LeWitter Malkani

The conservative US Supreme Court’s activist agenda is in full throttle in the mandatory arbitration arena. In the AT&T v. Concepcion case (see prior blog of July 6, 2011), the US Supreme Court planted its thumb squarely on the employer’s side of the scales of justice by overturning past law and holding that there is no per se invalidation of class action arbitration provisions (Concepcion is a consumer class action case). Now the US Supreme Court apparently wishes to tip the scales at the opposite end of the spectrum: by applying this class action holding to individual Berman hearings brought by California workers for the payment of wages. The US Supreme Court has reached out and vacated (as well as remanded) the California Supreme Court’s holding in Sonic-Calabasas v. Moreno (2011) 51 Cal.4th 659. Why can’t the US Supreme Court stay out of our backyard?

The holding which the US Supreme Court vacated was quite modest. It simply upheld an employee’s right to a “Berman hearing” before the California Labor Commissioner, pursuant to California Labor Code, section 98, for the payment of unpaid wages. Berman hearings are a streamlined administrative procedure for employees to recover unpaid wages–including overtime, meal and rest period pay, and waiting time penalties–without having to go to court, allowing many employees who cannot afford a lawyer the ability to stand up for their workplace rights. The right to a Berman hearing protected by the California Supreme Court in Sonic-Calabasas was limited to the first instance only; the California Supreme Court permitted the employer to enforce a mandatory arbitration of the employee’s next step appeal, which would have otherwise taken place in the superior court.

The US Supreme Court vacated this opinion in light of Concepcion. See, Sonic-Calabasas, Inc. v Moreno (October 31, 2011) No. 10-1450. Does the US Supreme Court really believe that this minor right to an administrative hearing in the first instance should be wiped out? Does it really believe that an employer has a right to hijack a benign administrative process to entitle an employee to obtain his or her basic wages?

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

Published on: October 18, 2011 | Siegel LeWitter Malkani

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

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

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