Articles Posted in Employment Law

A retail store employee has the mixed blessing and curse of excitedly anticipating the birth of her second child, while simultaneously fearing the loss of her job due her employer’s policies. Rather than allow the employee to continue working with a “light duty” restriction, the employer forced her onto maternity leave, scheduled to run out more than a month before the baby is due. As a result of the employer’s refusal to provide the employee with a reasonable accommodation of her pregnancy-related disability, the employee has sued her employer for violating the Fair Employment and Housing Act in Santa Clara County Superior Court.

Kimberley Caselman was a Pier 1 sales associate in San Jose who was two months pregnant in November 2013. At that time, the employee disclosed her pregnancy, and informed her employer that her doctor recommended that she refrain from climbing ladders or lifting objects heavier than 15 pounds. Pier 1 placed her on “light duty” work for eight weeks.

At the end of that period, Caselman asked to continue working under the “light duty” limitation. The employer refused, instead forcing the employer to go on unpaid medical leave, starting in January and ending on May 20. The employee stated in her complaint that, if she cannot return to work on May 20, she expects Pier 1 will fire her, or else keep her on unpaid leave (which would leave her without the post-leave job protection afforded under California’s Pregnancy Disability Leave law).
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An employee who endured several alleged episodes of sexual harassment from a supervisor received a renewed opportunity to pursue her employer for the illegal conduct. The California Court of Appeal recently concluded that, although the harassment occurred outside the time period for filing a claim stated in the employee’s job application agreement, the employee could go forward anyway because the time period stipulated in the agreement was so short that it ran afoul of California public policy.

In 2009, Ashley Ellis took a job as a security guard for U.S. Security Associates. Following a promotion, Ellis’s position made Rick Haynes her supervisor. Haynes began sexually harassing Ellis. U.S. Security eventually terminated Haynes and promoted Ellis, promising her a pay of $14 per hour. When Ellis received her paycheck, however, the employer had increased her pay rate only to $10.50 per hour. Ellis resigned shortly thereafter and, 10 months later, sued her former employer under the Fair Employment and Housing Act (FEHA). The employer argued before the trial court that Ellis could not pursue her lawsuit because she had promised, as part of her employment application agreement, to bring all legal actions within six months of the incident triggering the dispute. The agreement also waived any statutes of limitations that gave the employee a longer time to sue. The trial court accepted the employer’s argument and dismissed the employee’s suit.

The appeals court was not persuaded, however, and reversed. The statutory scheme and legal remedies the FEHA created existed “for a public reason.” The court pointed out that one statutory section, Section 12920, specifically states that the FEHA was enacted because of California’s public policy “to protect and safeguard the right and opportunity of all persons to … employment without discrimination” and that the benefit of the policy against sexual harassment extended to the public at large, not just the victimized employee. Continue reading ›

Often, one of the more powerful tools an employee has in an employment discrimination case is raising the prospect of taking an employer to court and bringing about unwanted negative publicity. This is has never been more true than in today’s digital age of social media, where anyone can broadcast information that may go before thousands of eyes within within a matter of moments. That’s why the inclusion of a contractual clause promising confidentiality is often key to an employer’s agreement to settle and pay the employee. California employees who agree to confidentiality clauses should ensure they understand their duties, because the consequences of a breach can be severe, as one prep school headmaster in another state recently learned.

The case involved Patrick Snay, the headmaster at Gulliver Preparatory School. After the school declined to renew his contract, the headmaster, who was in his mid 60s, sued for age discrimination. The two sides settled, with the school agreeing to pay the headmaster a settlement of $80,000 contingent on his agreement to maintain confidentiality. The headmaster agreed to the terms, which limited him to discussing the matter with his attorneys, professional advisors and wife, but he told his 18-year-old daughter about the outcome. The daughter, soon thereafter, logged onto Facebook, and posted that her parents had “won” the case and that the school was “now officially paying for my vacation to Europe this summer.” The post was available to the daughter’s 1,200 Facebook friends, many of whom were associated with the school.

After becoming aware of the Facebook post, the school refused to pay the headmaster, claiming that he violated the non-disclosure agreement. A Florida appeals court agreed with the school. The court was not moved by the headmaster’s argument that he had a familial obligation to give the daughter some information. The court stated that the headmaster should have told his attorneys about this need, so that his legal team could include that element within the terms of the non-disclosure agreement. The headmaster, however, discussed his plan with no one but his wife, the resulting confidentiality agreement made no allowance for telling the daughter and, in the end, the headmaster’s disclosure cost him $80,000.

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A nurse, fired after reporting sexual harassment he received at the hands of one of his supervisors, saw his nearly quarter-million damages award evaporate when the California Court of Appeal awarded his employer a new trial. In order to succeed on a claim of illegal retaliation, the law requires the employee to show that his reporting of harassment was a substantial motivation for the termination. Because the trial court only asked a jury to decide if the nurse’s report factored into the hospital’s decision-making at all, the verdict was flawed.

Romeo Mendoza had been a nurse at the Western Medical Center Santa Ana, with a stellar employment record, for more than two decades when he reported to a hospital supervisor about the sexual harassment he received from his immediate supervisor, Del Erdmann. Mendoza claimed that Erdmann made crude and offensive sexual comments, blew into his ear and exposed himself.

The hospital investigated and Erdmann claimed that he and Mendoza, both of whom are gay, were engaged in consensual flirtation at work and that Mendoza initiated many of the interactions. The hospital fired both men, concluding that each engaged in “inappropriate and unprofessional behavior.”

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A union member’s past criminal conviction proved to be the undoing of his racial discrimination claim, even though his union did not know about the conviction when it rejected him for an organizer position. The California Court of Appeal recently concluded in Horne v. International Union of Painters and Allied Trades District Counsel, 16 that the member’s criminal record made him statutorily ineligible for the organizer position he sought. Because of that ineligibility, the applicant could not possibly establish a case of racial discrimination in violation of the Fair Employment and Housing Act (FEHA), regardless of the union’s motivation for rejecting him.

The case began after Raymond Horne, an African-American male, twice applied unsuccessfully for an organizer job, in 2009 and 2010, with District Council 16 of the International Union of Painters and Allied Trades, of which Horne was a member. In each instance, the union selected a white applicant to serve as organizer. Thereafter, Horne sued the union, claiming it racially discriminated against him.

During the pre-trial discovery phase of his case, Horne disclosed his having a criminal record. The state convicted him on drug charges in 1997. Horne went to jail but was paroled in 2003. At the time the union chose the white candidates over Horne, it was unaware of Horne’s criminal past.

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A recent ruling reiterated the rule that an employer may assert both trade secret and non-trade secret related claims, as long as the employer establishes separate bases for each. In Angelica Textile Services, Inc. v. Park, the California Court of Appeal allowed an employer to pursue its multi-claim action against a former vice president because the factual underpinnings of the company’s non-trade secret claims were separate from its trade secret claims, revolving solely around the vice president’s alleged violation of the terms of his non-competition agreement.

Jaye Park, a vice president at Angelica, had signed a non-competition agreement with his employer promising not to become involved with any business similar to Angelica’s as long as he worked for the employer. In 2008 and 2009, though, Park discussed the creation of a competing hospital linen and laundry company, including preparing a detailed business plan. In 2010, Park resigned and took a role as the Chief Operating Officer at the new company. Angelica sued, claiming Park misappropriated trade secrets, interfered with its business relationships, breached his contract and breached his fiduciary duty to the employer. The trial court concluded that the employer could proceed only on its trade secrets claim, because the other claims were dependent on the trade secrets claim and, as a result, the California Uniform Trade Secrets Act (CUTSA) displaced all of the other claims.

On appeal, though, the employer successfully argued for the other claims’ reinsertion. The California Court of Appeal pointed out that the CUTSA explicitly avoided displacing contractual claims, even if the basis of those claims was a misappropriated trade secret. Other non-contractual claims could also survive if the facts underlying them were independent from the facts supporting the trade secret misappropriation claim.

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A California appellate court demonstrated the considerable extensiveness of the rights of employees to be free from discrimination in the workplace with its recent decision in Rope v. Auto-Chlor System of Washington, Inc. The court concluded that the employer’s decision to fire an organ-donating employee rather than comply with a newly effective law expanding the rights of organ donors violated the Fair Employment and Housing Act, as it constituted improper discrimination against an employee based upon his association with a person with disabilities. The ruling shows the risk employers undertake when they take adverse employment actions against employees with disabilities, or even those who actions are motivated by an association with a person with disabilities.

Auto-Chlor hired Scott Rope in September 2010. At that time, the employee informed the employer that his sister suffered from kidney failure and that he would be donating a kidney to her the following February. The employee later learned of the Michelle Maykin Memorial Donation Protection Act (DPA), which offers up to 30 days paid leave for organ donors, and sought paid leave for his February absence. Despite receiving only positive performance reviews, the employer terminated the manager on Dec. 30, two days before the DPA became effective, citing poor performance.

The employee sued, citing DPA violations and violations of the Fair Employment and Housing Act (FEHA). The employer asked the trial court to throw the case out, and the judge agreed. On appeal, however, the California Court of Appeal revived part of the employee’s action regarding alleged FEHA violations. The court determined that the employee’s complaint set up a potential case of discrimination based upon the employee’s association with a person with disabilities; namely, the employee’s sister. The court acknowledged that no previous California case had clearly established the parameters of the disability-based association discrimination issue, and looked to a 2004 federal ruling, Larimer v. International Business Machines Corporation, which analyzed the federal Americans with Disabilities Act. Continue reading ›

In the wake of a controversial termination of a San Diego schoolteacher who was a victim of domestic violence, the California legislature has passed, and Governor Jerry Brown signed, a new law expanding the reach of the state’s anti-discrimination laws to include victims of sexual assault, domestic violence and stalking. The new prohibitions in Senate Bill 400 bar employers from terminating, discriminating against or retaliating against employees based solely upon their status as victims of domestic violence, sexual assault or stalking.

The trigger for this new law was the case of Carie Charlesworth, a second-grade teacher at Holy Trinity School in San Diego County. In January 2013, despite several restraining orders, Charlesworth’s ex-husband came to the school parking lot, leading to a school “lockdown.” After the lockdown incident, the Diocese of San Diego terminated her, citing safety concerns.

Starting on Jan. 1, 2014, employers may no longer take a similar course of action. This prohibition exists even if the employer determines that the abuser or stalker presents a genuine threat of harm to other employees or (in the case of schools) students. Continue reading ›