EMPLOYMENT UPDATES

The following updates can be viewed or downloaded in PDF format.

 

The generally applicable one-year statute of limitations for penalties of Code of Civil Procedure section 340(a) applies to claims for waiting time penalties for late payment of wages when back wages are not also sought.  [Issue 205]

An Employee Was Awarded Reasonable Attorneys’ Fees on a Successful Wage Claim. 

Harrington v. Payroll Entertainment Services, Inc. (C.A. 2nd, Feb. 28, 2008) B198883.   [Issue 204]

Employee Was Not Required To Exhaust An Informal Internal Grievance Process Before Suing For Sexual Harassment Under FEHA.

Ahmadi-Kashani v. Regents of the University of California, G038103 (Cal.App.4th, January 28, 2008).   [Issue 203]

An administrative wage claim did not preclude subsequent civil claims for fraudulent inducement.

Noble v. Draper C053918, (Cal.App.3d, January 31, 2008).   
[Issue 202]

An Agency Agreement Between An Insurance Company And An Insurance Agent Could Be Terminated At Will, Precluding The Agent From Maintaining A Cause Of Action For Breach Of The Covenant Of Good Faith And Fair Dealing Based On Alleged Misrepresentations Made By The Agent's Supervisors. 

Bernard v. State Farm Mutual Insurance Company (2007) 158 Cal.App.4th 304.   [Issue 201]

The One-Year Statute of Limitations Does Not Preclude FEHA Claims Where At Least One Discrete Act of Discrimination Occurs Within the Limitations Period. 

Substantially Reducing or Eliminating a Teacher’s Classroom Teaching Assignments Is Sufficient to Raise a Triable Issue as to Whether Plaintiff Suffered an Adverse Employment Action.

Hammond v. County of Los Angeles (C.A. 2nd January 18, 2008), B189262.   [Issue 200]

Severance Agreements Could Not Limit or Waive Terms of Federal Statute (USERRA).

Perez v. Uline, Inc. (C.A. 4th December 6, 2007), G036939.   
[Issue 199]

Employee may state cause of action for wrongful termination in violation of public policies that promote a safe and crime-free workplace.

Franklin v. The Monadnock Co. (2007) 151 Cal.App.4th 252.   
[Issue 198]

The employer could not force an employee on FMLA leave to use paid time off during her receipt of disability benefits.

Repa v. Roadway Express, Inc. 477 F.3d 938 (7th Cir. 2007).   
[Issue 197]

Summary Judgment is denied where employer failed to notify employee of rights under the California Family Rights Act. 

Faust v. California Portland Cement Company (2007) 07 C.D.O.S. 5133.   [Issue 196]

California Court of Appeal Holds An Employee’s Right to Payment of Wages Pursuant Under the Labor Code Applies to Salaried Corporate Executives.

On-Line Power, Inc. v. Mazur (Cal.App. 2nd Dist., April 17, 2007) BC294513.   [Issue 195]

Employers May Be Liable To Employees Of Independent Contractors Who Do Not Have Appropriate Licenses Or Workers’ Compensation Coverage.

Heiman v. Workers’ Compensation Appeal Board, (2007) 149 Cal. App. 4th 724.  [Issue 194]

An employer may be held liable for a supervisor’s conduct occurring outside of the physical workplace.

Myers v. Trendwest Resorts, Inc. (February 28, 2007, Cal.App. 3rd Dist.)   [Issue 193]

Two-Tiered Pay Scale Held Not Discriminatory Where No Barriers Exist For Female Applicants Seeking Higher Pay Scale Jobs.

Hall v. The County of Los Angeles (Cal.App., Second District, February 22, 2007)   [Issue 192]

Under the California class action certification law, a class will be decertified where defendant shows that the class members’ job activities differ significantly.

Walsh v. IKON Office Solutions, Inc. (March 28, 2007, Cal.App.4th)    [Issue 191]

California Court of Appeal Upholds Wage Order No. 16 Regulating California Employees in the On-Site Construction Industry.

Small v. Superior Court (Brinderson Constructors, Inc.) (Cal.App.3rd Dist., February 28, 2007) G037041   [Issue 190]

Local Ordinance

Effective February 5, 2007, San Francisco employers are required to offer paid sick leave to their employees.   [Issue 189]

An Employer is Immune for Liability for an Employee’s Cyber threats to Third Parties.

Delfino v. Agilent Technologies, Inc., 06 C.D.O.S. 11380 (Cal.App. December 14, 2006)  [Issue 188]


Controversies colorably arising under the Talent Agencies Act are within the exclusive original jurisdiction of the Labor Commissioner whether raised by the party bringing an action or as a defense.

Ferrer v. Preston, (2006) 145 Cal.App.4th 440  [Issue 187]


An Employer Violates the ADA by Failing to Prove the Elements of the Business Necessity Defense to Justify Hiring Criteria.

Bates v. United Parcel Service, Inc., (9th Cir., Oct. 11, 2006) 06 C.D.O.S. 9546  [Issue 186]

Under the California Family Rights Act, a Legitimate Nondiscriminatory Reason for Terminating an Employee Eliminates any Obligation to Reinstate the Employee.

Neisendorf v. Levi Straus & Co., (August 29, 2006, Cal.App.4th) A109826  [Issue 185]


The Statute of Limitations on a Claim for Vested Vacation Begins to Run Upon Termination and Does Not Limit Liability for Vacation Vested Before the Limitations Period.

Church v. Jamison (Cal.App.5th Dist., October 23, 2006) 06 C.D.O.S 9880  [Issue 184]

The Limitations Period For Filing Suit under the Equal Pay Act did not begin running immediately following the issuance of Employer's Bankruptcy Stay.

O'Donnell v. Vancor Inc., et al. (9th Cir, October 10, 2006) 06 C.D.O.S. 10105  [Issue 183]

Ninth Circuit Court of Appeal holds that a general release agreement that releases ADEA claims but includes a covenant not to sue that purports to not apply to ADEA claims does not constitute a "knowing and voluntary waiver" under the OWBPA.

Syverson v. IBM, 2006 WL 2506421 (9th Cir. Aug. 31, 2006)  [Issue 182]

An Employer Or Health Plan Administrator Bears The Burden Of Proving That COBRA Notices Are Actually Mailed To Employees.

Crotty v. Dakotacare Administrative Services, 2006 U.S. App. LEXIS 19289 (8th Cir. August 1, 2006) [Issue 181]

An employee does not have to establish that he/she was actually viewed or recorded by a video camera to prove a claim for invasion of privacy.

Hernandez, et al. v. Hillsides, Inc., 06 CDOS 8764 (September 14, 2006, Cal.App.2d)  [Issue 180]

Where the only penalties sought by an employee against a former employer are statutory penalties under the California Labor Code, the employee need not exhaust his/her administrative remedies under the Labor Code Private Attorneys General Act.

Dunlap v. Superior Court (Bank of America, N.A.), B185247 (July 27, 2006, Cal.App.4th)  [Issue 179]

The California Court of Appeal Determines Independent Contractor Status With Deference To The Purposes of the Workers’ Compensation Act.

JKH Enterprises, Inc. v. Department of Industrial Relations (August 22, 2006) 06 C.D.O.S. 8522 [Issue 178]

The WARN Act Does Not Apply To A Government-Ordered Mass Layoff.

Deveraturda v. Globe Aviation Security Services, F.3d 2006 WL 2042897 (9th Cir., July 24, 2006) [Issue 177]

Employee’s Breach of Contract Claim is Dismissed based on Offer Letter defining “atwill” to mean terminable “at any time.” 

Dore v. Arnold Worldwide, Inc., 06 C.D.O.S. 7078 (California Supreme Court, August 3, 2006).  [Issue 176]

An attorney may sign claimant’s DFEH charge on claimant’s behalf.

Blum v. Superior Court (Copley Press) 06 CDOS 6433, 
(July 17, 2006, Cal.App. 2d Dist.).  [Issue 175]

A forum selection and choice-of-law clause in an employment contract is upheld and may encompass discrimination claims under California law. 

In an action alleging sex discrimination and harassment in violation of the Fair Employment and Housing Act, summary judgment for defendant/employer is reversed based on triable issues of fact concerned a series of alleged comments. 

The Court of Appeal upholds the finding of the OSHA Appeals Board that employer violated safety rule applicable to earth excavators. 

The Supreme Court clarifies what constitutes an “adverse employment action” in retaliation cases. 

Healthcare Employees On the 3/12 Alternative Workweek Schedule Are Entitled to Overtime Pay Only for Work Performed In Excess of 12 Hours In a Given Workday or In Excess of 40 Hours In a Workweek. 

Employee Directed to Take Temporary Medical Leave Until Further Notice Was Not “Dismissed” for Purposes of Claim Against Employer for Reinstatement, Back Pay, and Benefits. 

An employer did not discriminate on the basis of disability or fail to accommodate a disability when it failed to reinstate plaintiff following a medical leave of absence.

Williams v. Genentech, Inc.; 06 C.D.O.S. 3848 (May 9, 2006, Cal.App.1st Dist.)  [Issue 168]

An employer did not discriminate on the basis of disability or fail to accommodate a disability when it failed to reinstate plaintiff following a medical leave of absence.

Gober v. Ralph’s Grocery Co.; 06 C.D.O.S 1748 (March 1, 2006, Cal.App.4th Dist.)  [Issue 167]

Facts in sexual harassment case against employer did not warrant award of punitive damages in excess of 6 to 1 ratio between punitive and compensatory damages.

Employees’ Federal overtime claims under the Fair Labor Standards Act did not preempt their state law unfair competition claim.

Kelton v. Stravinski; (5th App. Dist. April 26, 2006) 06 C.D.O.S. 3320 [Issue 165]

An ongoing business relationship is not sufficient to validate a covenant not to compete under Business & Professions section 16600.

Overton v. Walt Disney, 06 C.D.O.S. 981 (February 1, 2006, 2nd App. Dist.) [Issue 164]

Travel time is not compensable when employer did not require that employee use its transportation shuttle.

Hulteen v. AT&T Corp. (9th Cir., Mar. 8, 2006) 06 C.D.O.S. 1999 (April 21, 2006)  [Issue 163]

The Ninth Circuit holds that the Pregnancy Discrimination Act of 1979 was not applicable retroactively so as to permit retiring employees to claim service credit for periods of pre-statute pregnancy leaves from work.

The United States Supreme Court Clarifies The Circumstances Under Which A Plaintiff Can Establish That An Employer’s Nondiscriminatory Reasons For Hiring Were Pretextual.

Employees May Assert a Cause of Action Against Employers for Denial of Civil Rights Due to Discriminatory Violence and Intimidation by Threat of Violence in the Workplace.

Gentry v. Superior Court (Circuit City Stores, Inc.) 06 C.D.O.S. 552 (January 20, 2006)  [Issue 160]

A Court Will Enforce a Class Action Waiver In A Pre-employment Arbitration Agreement Provided That The Provision Is Not Procedurally Or Substantively Unconscionable, According To A Recent Decision By The 2nd District Court of Appeal.

Josephs v. Pacific Bell, 9th Cir. December 27, 2005  [Issue 159]

A claim for discriminatory refusal to reinstate is a separately actionable cause of action under the ADA, even absent wrongful termination.

California Employers Face Mandatory Poster and Pamphlet Changes  [Issue 158]

In determining whether California's minimum wage law has been violated, an employer may not average the total hours worked. The minimum wage standard affixes to each hour worked for which the employee was not paid. When the employee claims a violation of minimum wage law, waiting time penalties are calculated according to the minimum wage rate, not the employee's contractual wages.

EEOC v. UPS, 05 C.D.O.S. 8382 (9th Circuit - No. 04-15928)  [Issue 156]

The employer successfully established the "safety-of-other" defense in a disability discrimination action.

Gary Ross v. Ragingwire Telecommunication, Inc. (Case No. C043392 filed 9/7/05) [Issue 155]

Employers need not tolerate medical marijuana use by employees.

Green v. State of California (August 24, 2005) 05 C.D.O.S. 7708  [Issue 154]

The California Court of Appeals clarifies that a plaintiff need not prove that he/she is a "qualified individual" for a position in order to state a prima facie disability discrimination claim.

Elysa J. Yanowitz v. L'Oreal USA, Inc. (Case No. S115154 filed 8/11/05) [Issue 153]

California Supreme Courst expands liability for retaliation.

Kevin Brown v. Department of Corrections, et al. (3rd App. Dist., September 1, 2005) 05 C.D.O.S. 7988  [Issue 152]

Civil Code Section 47(b) protects an employer who reports an employee's perceived threat to the police.

Conley v. Pacific Gas and Electric Co., 05 C.D.O.S. 6444 (July 22, 2005, C.A.1st). [Issue 151]

California law does not preclude employers from following federal policy permitting employers to deduct partial-day work absences from exempt employees' vacation leave.

By application of "same-actor" inference, plaintiff claiming employment discrimination had heavier burden of proof where person who demoted him had previously appointed and promoted him.

Where sexual favoritism in the workplace is "sufficiently widespread," it may create a sexually hostile work environment.

The Ninth Circuit Court of Appeals Rules That a “Motivating Factor” Standard is Appropriate in an ADA discrimination claim.

Mere Criticisms Of Employee By Supervisors, Even Where Coupled With Threats Of Termination, Does Not Constitute An “Adverse Employment Action” As Required To Support A Retaliation Claim.

The Ninth Circuit holds that an employee’s claims for meal periods based on protections provided by state law were not preempted by federal labor law.

California Law

An employer risks punitive damages exposure if it retains and transfers a known harasser to another facility as a remedy for harassment.

Under the Fair Labor Standards Act, finance and insurance managers of retail auto dealerships are not entitled to overtime pay.

If a managerial employee backs-up an employee’s racially motivated conduct instead of protecting the victim from the employee, then the employer may be liable.

An Employment Arbitration Agreement Is Valid Even if It Permits One of the Parties to Seek Review of the Decision By a Second Arbitrator.

The California Court Of Appeals Confirms That An Uncompensated Volunteer Is Not An "Employee" Within The Meaning of the California Fair Employment and Housing Act.

The Age Discrimination in Employment Act ("ADEA") authorizes recovery in disparate impact cases comparable to Title VII. 

Trial court properly enjoined former healthcare staffing company employee from soliciting employees based on admitted use of confidential information and trade secrets. 

The California Court Of Appeals Clarifies The Applicable Standard For What Constitutes An “Adverse Employment Action” in Retaliation Cases.  

The Court May Enjoin Activities Constituting Unlawful Harassment, Even Though the Injunction May Be a Prior Restraint On Speech.

Moran v. Murtaugh, Miller, Meyer & Nelson, LLP (01/31/2005) 05 C.D.O.S. 964. March 15, 2005 [Issue 135] 

An Employer Who Conducts Its Own Background Check Of An Employee Must Deliver The Results Of The Check To The Employee Within A Reasonable Time. 

Leonel, et al. v. American Airlines, Inc. (March 7, 2005) 5 C.D.O.S. 1901. March 15, 2005 [Issue 134] 

Employers Should Not Require Medical Examinations Of Applicants Prior To Making “Real” Job Offers.

Starving Students, Inc. v. Department of Industrial Relations, Division of Labor Standards Enforcement (January 24, 2005) 5 C.D.O.S. 676. March 3, 2005 [Issue 133] 

Employers Who Fail To Secure Workers' Compensation Insurance From A Carrier Authorized To Issue Such Insurance In California Are Subject To Mandatory Penalties of Up To $100,000, Regardless Of Fault.

Employers are required to post a new notice of employees’ rights under USERRA. February 18, 2005 [Issue 132] 

Federal Law 

Al-Safin v. Circuit City Stores, Inc. 05 C.D.O.S. 435 (January 14, 2005, 9th Cir.) February 18, 2005 [Issue 131] 

An arbitration agreement that allowed the employer to alter the rules and procedures of the arbitration was “unconscionable” and unenforceable.  

The EEOC obtains a jury verdict of nearly $1 million on behalf of a farmworker in the Fresno, California area. 
January 27, 2005 [Issue 130] 

Federal Law 

Multi-step grievance procedure in agreement between union and employer satisfies the employee’s right to due process, even though it vests the union with the exclusive authority to decide whether to request arbitration of a grievance. January 26, 2005 [Issue 129] 

Jones v. Omnitrans (4th App. Dist., Dec. 23, 2004) No. E035295, 2004 WL 2966496 

Cal-OSHA Provisions Are Admissible In Negligence Actions Against Non-Employer Third Parties To Prove The Applicable Standard Of Care For Injuries Occurring After 1998. January 12, 2005  
[Issue 128] 

Elsner v. Uveges 04 C.D.O.S. 11146 (Cal. Sup. Ct., Dec. 20, 2004)  

Temporary Agency's Arbitration Agreement Does Not Apply to Job Applicants Who Were Not Hired. January 11, 2005 [Issue 127] 

Balandran v. Labor Ready, Inc., 04 C.D.O.S. 11152 (2nd App. Dist.; Dec. 17, 2004) 

Employer who reneges on job offer after offeree quits his old job in reliance thereon may be liable for "lost future wages," even if former employment was at-will, as long as the lost wages are not speculative or remote, and are supported by substantial evidence. January 7, 2005 [Issue 126] 

Toscano v. Green Music 04 C.D.O.S. 10585 (4th App. Dist.; Dec. 2, 2004) 

DLSE Opinion Letter May Qualify as Improper Administrative Regulation. January 7, 2005 [Issue 125] 

Westside Concrete Co., Inc. v. Dept. of Industrial Relations, et al. 04 C.D.O.S. 10077 (2004) 

The burden-shifting analysis under "McDonnell Douglas" is not applicable when plaintiff presents direct evidence of discrimination. January 7, 2005 [Issue 124] 

Enlow v. Salem-Keizer Yellow Cab Co., Inc. 389 F.3d 802 (9th Cir. Nov. 2, 2004) 

An employee is not entitled to family medical leave for a “serious health condition” because her work shift created stress. December 16, 2004 [Issue 123] 

Lonicki v. Sutter Health Hospital 04 C.D.O.S. 10914 (December 13, 2004, Cal.App.3 Dist.) 

Employer's appeal of award of wages was properly dismissed for failure to post bond. December 16, 2004 [Issue 122] 

Williams v. FreedomCard, Inc. 04 C.D.O.S. 9668 (2004 Cal.App.2 Dist.)  

Amendment to the California Fair Employment and Housing Act (FEHA) imposing personal liability on non-supervisory personnel for sexual harassment does not apply retroactively. December 7, 2004 [Issue 121] 

McClung v. Employment Development Department (2004) 34 Cal.4th 467. 

An Employee Who Is Hired To Perform A One-day Assignment Is Not Entitled To “Waiting Time” Penalties Under The Labor Code. December 1, 2004 [Issue 120] 

Smith v. Superior Court (L’Oreal) (2004) 04 C.D.O.S. 9303 

The Federal Government Publishes Final Regulations Governing Requirements for Providing Employees With COBRA Notices. December 1, 2004 [Issue 119]  

California Mandates That Certain Employers Provide Supervisors With at Least Two Hours of Sexual Harassment Training. 
December 1, 2004 [Issue 118] 

Assembly Bill 1825 

Carter v. California Department of Veterans Affairs 04 C.D.O.S. 7511 (August 17, 2004, Cal.App. 4th Dist.) September 9, 2004  
[Issue 117] 

The Amendment To The California Fair Employment and Housing Act Did Not Impose Retroactive Liability On Employer For Sexual Harassment By Non-Employee. 

Governor Schwarzenegger Reforms Labor Code Section 2698 (The "Sue Your Boss" Law) September 9, 2004 [Issue 116] 

Grinzi v. San Diego Hospice Corp. 04 C.D.O.S. 5887 (June 30, 2004, Cal.App.4 Dist.) August 19, 2004 [Issue 115] 

The Court Of Appeal Holds That There Is No Claim Against A Private Employer For Wrongful Termination In Violation of Public Policy Based On Employee's Exercise Of Free Speech Rights. 

Pennsylvania State Police v. Suders (June 14, 2004) 124 S.Ct. 2342, 4 C.D.O.S. 5110  August 19, 2004 [Issue 114] 

An Employee's Claims For "Constructive" Discharge May Be Barred If The Employee Fails To Take Advantage Of The Employer's Internal Preventative Procedures. 

Waste Management, Inc. v. Superior Court (Peralta) 04 C.D.O.S. 4719 (June 1, 2004, Cal.App.4 Dist.) August 19, 2004 [Issue 113] 

An Employee's Accidental Death Cannot Be Attributed To The Parent Corporation Based On Control Over The Budget Of The Subsidiary Employer.  Plancarte v. Guardsmark, LLC (2004) 04 C.D.O.S. 4108. 
August 19, 2004 [Issue 112] 

Defending An Employee In A Lawsuit Does Not Amount To Ratification Of The Employee's Wrongful Conduct.  

The Department Of Labor Brings Wages And Hours Into The 21st Century: Important Changes To The Federal Fair Labor Standards Act. June 17, 2004 [Issue 111] 

Martinez v. Master Protection Corp. 04 C.D.O.S. 3744 (April 29, 2004, Cal.App.2 Dist.) May 13, 2004 [Issue 110] 

Employment Arbitration Agreement Found To Be "Unconscionable" And The Trial Court Lacked Authority To Appoint An Arbitrator After The Parties' Chosen Arbitrator Refused To Conduct The Arbitration.  

Sampson v. Parking Service 2000 (2004) 117 Cal.App.4th 212 
May 13, 2004 [Issue 109] 

An Employee Who Pursues An Administrative Remedy To Recover Overtime Compensation Is Not Entitled To Attorneys' Fees Incurred In Pursuing The Administrative Claim. 

Salazar v. Diversified Paratransit, Inc. (2004) 11 Cal.Rptr.3d 630 
April 23, 2004 [Issue 108] 

2004 Amendment To FEHA That Makes Employers Liable For Harassment By Non-Employees Applies Retroactively. 

Hernandez v. Hughes Missile Systems Company 04 C.D.O.S. 2442 (March 23, 2004, 9th Cir.) March 26, 2004 [Issue 107] 

An Employer May Violate The Americans With Disabilities Act By Refusing To Re-Hire A Recovered Drug Addict. 

Ralphs Grocery Co. v. Massie 04 C.D.O.S. 2227 (March 11, 2004, Cal.App.4 Dist.) March 26, 2004 [Issue 106] 

The Federal Arbitration Act Prevents The Labor Commissioner From Pursuing Remedies That Are Employee-Specific Where The Employee Has Entered Into An Enforceable Arbitration Agreement With The Employer.  

Leever v. City of Carson 04 C.D.O.S. 1937 (March 4, 2004, 9th Cir.) 
March 26, 2004 [Issue 105] 

Agreements To Waive Overtime Pay Must Take Into Account Some Approximation Of Overtime Hours Employee Works To Be Valid. 

Chapman v. Enos 04 C.D.O.S. 2132 (March 10, 2004, Cal.App.1st Dist.) March 18, 2004 [Issue 104] 

A “Supervisor” Within The Meaning Of FEHA Can Be One Who Directs The Daily Job Duties Of The Plaintiff. 

Laura Mathieu v. Norrell Corporation, et al. 2004 WL 309175 (February 19, 2004, Cal.App.2 Dist.) March 18, 2004 [Issue 103] 

A Temporary Staffing Agency Is Held Liable For Retaliation Arising Out Of Conduct By An Employee Of Its Client.  

General Dynamics Land Systems, Inc. v. Cline (February 24, 2004) 2004 WL 329956 (U.S.) March 9, 2004 [Issue 102] 

Discrimination against relatively younger employees who are over the age of 40 is outside the protection of the Age Discrimination in Employment Act.  

Blitz v. Fluor Enterprises (January 26, 2004) 115 Cal.App.4th 185 
March 3, 2004 [Issue 101] 

A Verbal Agreement To Provide "Long-term Employment" May Defeat "At-will" Language In An Employment Contract. 

Childress, et al. v. Darby Lumber, Inc. et al. 04 C.D.O.S. 1095 (9th Cir. February 6, 2004) February 26, 2004 [Issue 100] 

The The Ninth Circuit Holds That Employees Are Entitled To Wages And Attorneys' Fees For A Violation Of The WARN Act. 

Abramson v. Juniper Networks, Inc. 2004 WL 225039 (Cal. Ct. App; February 6, 2004); February 26, 2004 [Issue 99] 

The California Court of Appeal Refuses To Enforce An Arbitration Agreement Based On An Illegal Cost-Sharing Term And "Unconscionability". 

Brigham v. Eugene Water & Electric Board (U.S. Court of Appeal, 9th Circuit, February 3, 2004) 2004 WL 193856; February 20, 2004 
[Issue 98] 

The Ninth Circuit Holds That It Was Reasonable Under The Fair Labor Standards Act For An Employer To Treat A Portion Of "On-Call" Time As Compensable Under The Terms Of An Agreement With Its Employees. 

Kotla v. The Regents of the University of California (January 28, 2004) 2004 WL 163753; February 6, 2004 [Issue 97] 

Expert Witness Testimony That Certain Facts Were "Indicators" Of Retaliatory Discharge Was Improper. 

Peterson v. Hewlett-Packard Co. (9th Cir. January 6, 2004) 2004 WL 26580; January 21, 2004 [Issue 96] 

Employer Did Not Discriminate Against Employee Who Was Discharged For Refusing To Remove Anti-Gay Biblical Passages From His Workplace Cubicle. 

Pacific Gas & Electric Company v. Workers Compensation Appeals Board (1st Cir. Court of Appeal, January 9, 2004) 04 C.D.O.S. 245; January 19, 2004 [Issue 95] 

Employee Suffered No Compensable Psychiatric Injury From Stress Arising From Concern For Struggling Employer's Future. 

Mulder v. Pilot Air Freight (January 5, 2004) 04 C.D.O.S. 84; January 19, 2004 [Issue 94] 

The California Supreme Court Held That The Litigation Privilege Under Civil Code Section 47(b) Protects Employers And Their Employees From Liability Arising Out Of Reporting Suspected Criminal Activity. 

Hillstrom v. Best Western TLC Hotel (1st Cir. Court of Appeal, December 31, 2003) 2003 WL 23095252; January 14, 2004 [Issue 93] 

To Establish A Willful Violation Of The FMLA, A Plaintiff Must Prove That The Employer Either Knew Or Showed Reckless Disregard As To Whether Its Conduct Was Prohibited. 

Perry v. Jaguar of Troy (6th Cir., December 30, 2003) 2003 Fed App. 0459P; January 6, 2004 [Issue 92] 

An Employee Does Not Prevail On A Claim Under The FMLA Where He Cannot Prove A "Chronic Serious Health Condition." 

ALERT: Important New Laws Impacting California Employers In 2004; January 5, 2004 [Issue 91] 

As Californians rang in the new year last week, a host of extremely important new laws affecting the workplace and the relationship between employers, their employees (and even their customers and clients), went in to effect. The most important new laws are summarized below. Many of these laws will require revisions to employee handbooks and human resources practices and procedures as well as the posting of new mandatory posters and pamphlets. 

Thompson v. Impaxx, Inc. (C.A.2 December 8, 2003) 03 CDOS 10534; December 23, 2003 [Issue 90] 

Unenforceable Covenant Against Solicitation Of Employer's Customers Supports Wrongful Termination Claim. 

Schifando v. City of Los Angeles (December 2, 2003) 03 CDOS 10290; December 17, 2003 [Issue 89] 

City Employee Is Not Required To Exhaust Both State And Municipal Administrative Remedies Before Suing His Employer For Discrimination Under FEHA. 

State Department of Health Services v. Superior Court (McGinnis), 03 C.D.O.S. 10088; December 11, 2003 [Issue 88] 

California Supreme Court Rejects Ellerth/Farragher Defense But Invokes The "Avoidable Consequences Doctrine" To Shield California Employers From Damages That Could Have Been Avoided Had The Employee Complained; Although Employers Are Strictly Liable For Sexual Harassment By Supervisors, Damages Can Be Limited If The Harassed Employee Failed To Take Reasonable Steps To Stop The Problem. 

Robert Barbee v. Household Automotive Finance Corporation (CA4 November 21, 2003) 03 C.D.O.S. 10008; November 26, 2003  
[Issue 87] 

Supervisor Could Be Terminated For Violating Company Policy Against Dating Subordinates.  

Perez v. County of Santa Clara (CA6 August, 25, 2003) 03 C.D.O.S. 7771; September 22, 2003 [Issue 86] 

Defendant Employers In FEHA Actions May Recover Ordinary Costs Of Litigation Even If Plaintiff’s Lawsuit Was Not Frivolous, Groundless Or Unreasonable. 

USS-Posco Industries v. Edwards (1st Dist., August 18, 2003) 03 C.D.O.S. 7474; September 19, 2003 [Issue 85] 

Employer May Seek Restraining Order On Behalf Of Employee Who Was Not Specifically The Target Of Harasser.  

Holly D. v. California Institute of Technology (9th Cir., August 18, 2003) 03 D.J.D.A.R. 9217; September 4, 2003 [Issue 84] 

Employer Is Entitled To Summary Judgment Where It Shows That It Exercised “Reasonable Care” To Prevent Harassment. 

Bell v. Clackamas County (9th Cir., August 20, 2003) 03 C.D.O.S. 7495; August 28, 2003 [Issue 83] 

Employee Proves Retaliation Claim Based On Timing Of Protected Activity And Evidence Of Employer's Irritation With Employee's Complaints Of Discrimination 

Eckard Brandes, Inc. v. Riley (9th Cir., August 11, 2003); August 20, 2003 [Issue 82] 

An Employee Who Operates A Competing Business During His Employment Breaches The Duty of Loyalty To The Employer. 

Circuit City Stores, Inc. v. Mantor (9th Cir. July 22, 2003) 03 C.D.O.S. 6431 ; August 15, 2003 [Issue 81] 

Under California Law, A Management/Employee Arbitration Agreement Can Be Procedurally Unconscionable Despite An Opt-Out Clause. 

Manatt v. Bank of America 03 C.D.O.S. 6613 (9th Cir., July 28, 2003); August 7, 2003 [Issue 80] 

The Ninth Circuit Holds That A Claim For Hostile Work Environment Under 42 U.S.C. §1981 Failed As The Claim Was Based On A Few Isolated Incidents Occurring Over A Brief Period. 

Desert Palace, Inc. v. Costa (June 9, 2003) WL 21310219; July 18, 2003 [Issue 79] 

The U.S. Supreme Court Holds That Direct Evidence of Discrimination Is Not Required To Prove A Mixed-Motive Discrimination Case Under Title VII. 

Intel Corporation v. Hamidi (June 30, 2003) 2003 DJDAR 7181; July 15, 2003 [Issue 78] 

The California Supreme Court Holds That Intel May Not Prevent A Former Employee From Sending E-mails To Current Employees. 

Carter v. California Department of Veterans’ Affairs (4th Dist. June 4, 2003) 03 C.D.O.S. 4750; June 16, 2003 [Issue 77] 

California Fair Employment and Housing Act (“FEHA”) does not impose liability on employer for sexual harassment committed against employee by client or customer. 

McManus v. CIBC World Markets Corp. (May 23, 2003) 03 C.D.O.S. 4339; June 9, 2003 [Issue 76] 

Unconscionable Fee Allocation Provision In Arbitration Agreement Does Not Render Entire Agreement Unenforceable 

Ostad v. Oregon Health Science University (9th Cir. 4/28/03) 03 C.D.O.S. 3538; June 2, 2003 [Issue 75] 

The Ninth Circuit holds that a plaintiff must prove that the "protected activity" was a "substantial" or "significant" factor in the employer's decision to terminate. 

Mackey v. Department of Corrections (2003) 105 Cal.App.4th 945; May 5, 2003 [Issue 74] 

The California Supreme Court will decide whether a supervisor who promotes his lover instead of other workers may be held liable for sex discrimination. 

Clackamas Gastroenterology Associates, P.C. v. Wells (4/22/03) 538 U.S. _.; April 29, 2003 [Issue 73] 

The United States Supreme Court defines who is an “employee” for purposes of determining coverage under the Americans with Disabilities Act. 

Advanced Bionics Corp. v. Medtronic, Inc. 2002 C.D.O.S. 12114 (Cal.Sup.Ct. Dec. 19, 2002); March 20, 2003 [Issue 72] 

A California court may not enjoin a party subject to its jurisdiction from commencing litigation over an agreement not to compete in another state. 

Cucuzza v. City of Santa Clara (December 23, 2002) 104 Cal.App.4th 1031; March 11, 2003 [Issue 71] 

The California Court of Appeal Applies Recent Case Law On The Continuing Violations Doctrine To Grant Employer’s Motion For Summary Judgment. 

Change In California Law Extends Statute Of Limitations For Personal Injury Actions And Notice Required For Summary Judgment Motion; February 20, 2003 [Issue 70] 

Senate Bill 688, Senate President pro Tempore John Burton: Amendments to California Code of Civil Procedure. 

The California Legislature Passes Bill Entitling Employees To Six Weeks of Wage Replacement Benefits During Family Care Leave; November 26, 2002 [Issue 69] 

Senate Bill 1661, Representative Kuehl. Disability Compensation: Paid Family Care Leave. 

Equal Employment Opportunity Commission v. Luce, Forward, Hamilton, & Scripps (9th Circuit Court of Appeal, September 3, 2002) 02 C.D.O.S. 8033; October 18, 2002 [Issue 68] 

The Ninth Circuit overrules Duffield and allows the arbitration of Title VII claims. 

Herberg v. California Institute of the Arts (2nd Dist. August 13, 2002) 02 C.D.O.S. 7400; October 14, 2002 [Issue 67] 

A single 24-hour display of a lewd drawing of the plaintiff did not constitute “hostile work environment” sexual harassment. 

Ferguson v. Countrywide Credit Industries, Inc. and Countrywide Home Loans, Inc. 02 C.D.O.S. 6577 (9th Cir., July 23, 2002); September 3, 2002 [Issue 66] 

The Ninth Circuit Court of Appeal finds that an arbitration agreement is unenforceable as procedurally “unconscionable” and one-sided. 

Hernandez v. Hughes Missile Systems Co. (9th Cir., 2002) 292 F.3d 1038; August 23, 2002 [Issue 65] 

Company’s Policy Against Rehiring Rehabilitated Employees Who Left Due to Violations of Company’s Drug Use Policy Violates the ADA 

Walrath v. Sprinkel 02 C.D.O.S. 6015 (July 2, 2002) First Appellate District, Division 2; August 19, 2002 [Issue 64] 

Individuals May Be Personally Liable for Retaliation Under the Fair Employment & Housing Act. 

Jefferson v. California Department of Youth Authority 02 C.D.O.S. 5945 (July 1, 2002) California Supreme Court; August 13, 2002 [Issue 63] 

A Compromise and Release Signed in a Workers’ Compensation Proceeding May Bar a Subsequent Civil Action Alleging Similar Claims or Injuries 

Risam v. County of Los Angeles (2002) 99 Cal.App.4th 412, 121 Cal.Rptr.2d 267; August 9, 2002 [Issue 62] 

Failure to Exhaust All Avenues of Judicial Review of Administrative Finding Bars Subsequent Civil Action Alleging Claims Deemed Meritless  

Grant-Burton v. Covenant Care, Inc. (2nd Dist. July 10, 2002) 02 C.D.O.S. 6182; August 5, 2002 [Issue 61] 

Employees Have A Fundamental Right, Rooted In Public Policy, To Discuss With Other Employees Their Wages, Bonuses And Other Compensation Issues 

Phillips v. St Mary’s Regional Medical Center C.A. 4th C.D.O.S. 1521 February 14, 2002; July 15, 2002 [Issue 60] 

The California Court of Appeal, Fourth District, holds that Article I, Section 8, of the California Constitution articulates fundamental public policy that may be violated by an employer’s retaliatory conduct and that Title VII likewise articulates fundamental public policy even with respect to provisions that directly conflict with California law.  

New Identity Theft Law Expands Employers’ Duties When Conducting Investigations Of Current Or Potential Employees; July 11, 2002 [Issue 59] 

Mercuro v. Superior Court 116 Cal.Rptr 2nd 671 (February 13, 2002); May 20, 2002 [Issue 58] 

The California Court of Appeal holds that the procedural requirements for arbitration agreements under Armendariz apply to statutory claims other than violations of the Fair Employment and Housing Act. 

Edward Almada v. Allstate Insurance Co.; May 20, 2002 [Issue 57] 

Unambiguous at-will statement in employment agreements and employee manuals preclude plaintiffs from establishing the existence of a promise not to terminate but for good cause. 

Sav-On Drug Stores, Inc. v. Superior.; May 20, 2002 [Issue 56] 

Court rejects class-action by store assistant managers bringing overtime claim. 

Walia v. Aetna, Inc., et al. 17 Cal. Rptr. 2nd 541 (November 21, 2001).; May 10, 2002 [Issue 55] 

California Court of Appeal affirms jury verdict against employer for terminating employee after she refused to sign illegal non-compete agreement. 

Scamihorn v. General Truck Drivers, Office, Food and Warehouse Union, Local 952 and Albertson’s, Inc.; May 10, 2002 [Issue 54] 

The Ninth Circuit holds that an employee who takes leave to provide emotional support to a family member may be protected under the Family Medical Leave Act. 

Bergene v. Salt River Project Agr. Imp. and Power Dist. 272 F.3d 1136 C.A.9 (Ariz.), 2001.; March 7, 2002 [Issue 53] 

Comments by supervisors may defeat summary judgment on retaliation and constructive discharge claims. 

Douglas v. California Dept. of Youth Authority 271 F.3d 812 C.A.9 (Cal.) 2001; February 22, 2002 [Issue 52] 

The Ninth Circuit revives “stale” or expired claims under the ADA on the grounds of the “continuing violations doctrine.” 

Department of Health Services v. Teresa V. McGinnis (2001) 01 C.D.O.S. 9999; December 6, 2001 [Issue 51] 

Employers are strictly liable under Fair Employment And Housing Act for supervisor’s harassing conduct; federal law affirmative defense premised on employer implementing anti-harassment policies and procedures does not apply under California law. 

New Labor And Employment Laws For 2002; December 5, 2001 [Issue 50] 

Little v. Auto Stiegler, Inc. (September 17, 2001) 01 C.D.O.S. 8181; October 30, 2001 [Issue 49] 

Certain requirements for the enforceability of arbitration agreements under Armendariz do not apply where plaintiff brings non-statutory claims. 

Flannery v. Prentice, 26 Cal.4th 572 (August 13, 2001).; October 26, 2001 [Issue 48] 

In the absence of an enforceable fee agreement to the contrary, attorneys’ fee awards under FEHA belong to the attorney 

A Summary of Employer Obligations To Employees Called To Active Duty In The Uniformed Services.; October 22, 2001 [Issue 47]  

Richards v. CH2M Hill, Inc. (August 23, 2001) 2001 DJDAR 9059; October 10, 2001 [Issue 46] 

California Supreme Court clarifies “continuing violation doctrine” as basis for holding employer liable for acts occurring more than one year before employee files discrimination charge 

Wittkopf v. County of Los Angeles (2nd Dist. July 25, 2001) 01 C.D.O.S. 6288; August 29, 2001 [Issue 45] 

The Court of Appeal, Second Appellate District, holds that year 2000 amendments to the Fair Employment and Housing Act concerning disability discrimination apply retroactively; the case directly contradicts holding of Colmenares (which has been accepted for review by the California Supreme Court). 

Soltani v. Western & Southern Life Insurance Co., 01 C.D.O.S. 6694 (9th Cir. 2001); August 24, 2001 [Issue 44] 

Applying California law, the Ninth Circuit applies the unconscionability principles of Armendariz to employment contracts generally.  

Block v. City of Los Angeles, Department of Water and Power (9th Cir. June 6, 2001) 01 C.D.O.S. 4593; August 22, 2001 [Issue 43] 

Salaried employees are entitled to overtime wages if they are treated as hourly 

Lenk v. Total-Western, Inc. (5th App. Dist. June 4, 2001) 01 C.D.O.S. 4702; July 23, 2001 [Issue 42] 

Plaintiff’s undisclosed subjective belief of the terms of an employment contract does not jeopardize at-will status. 

Colmenares v. Braemar Country Club, Inc. (2nd Dist. May 31, 2001) 01 C.D.O.S. 4465; July 19, 2001 [Issue 41] 

Significant amendments to the law prohibiting disability discrimination are not retroactive. 

Kohler v. Inter-tel Technologies (9th Cir. April 11, 2001) 01 C.D.O.S. 2890; July 17, 2001 [Issue 40] 

Employers may have affirmative defense to state law sexual harassment claim which was previously available only under federal law.  

Circuit City Stores, Inc. v. Adams (March 21, 2001) 121 S.Ct. 1302 Armendariz v. Foundation Health Psychcare Services, Inc. 24 Cal.4th 83 (2000); June 13, 2001 [Issue 39] 

Pre-dispute agreements to arbitrate employment claims should be enforceable if they are fair to the employee and if the employee’s agreement was knowing and voluntary.  

Doris Rowe v. Laidlaw Transit, Inc. (9th Cir. April 4, 2001) 01 C.D.O.S. 2730; April 30, 2001 [Issue 38] 

Even if an employer fails to notify an employee that a medical leave is protected by the FMLA, the employee still receives FMLA protection but the undesignated leave does not count toward the employee’s twelve-week limit. 

Esberg v. Union Oil Company of California (February 27, 2001) O1 C.D.O.S. 1664; April 16, 2001 [Issue 37] 

California’s Fair Employment And Housing Act does not prohibit age discrimination with respect to compensation or the “terms, conditions or privileges of employment.” 

Star v. West (9th Cir. Jan. 19, 2001) 01 C.D.O.S. 504; February 9, 2001 [Issue 36] 

Federal court outlines what constitutes an appropriate investigation and adequate remedial measures sufficient to shield the employer from coworker harassment liability. 

2001 Employment Law Changes; January 16, 2001 [Issue 35] 

Summary of new employment laws for 2002

 

 

 

    

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