The Latest Developments in California Employment Law

Tuesday, January 27, 2009

Anne Caldwell, HR Outsource Solutions, http://www.azoutsource.com

AB 392: Military Spouses
• Was effective November 2007
• Requires employers to allow employees whose spouses are qualified members of the Armed Forces, National Guard or Reserves to take up to 10 days

Handsfree Cell Phone Use In Vehicles
Exceptions: Commercial vehicles and agricultural vehicles using two-way radio cell phones,
authorized emergency vehicles, tow trucks, certain transit vehicles, and the use of a cell phone for
emergency services (e.g. 911 call).

New or revised posters and pamphlets Employers should have in their workplaces:
1. Updated DFEH harassment poster (DFEH-162)
2. New minimum wage poster accurately reflecting 2008 new rates
3. Updated pamphlets on paid family leave and state disability insurance published by the EDD

Disability Discrimination Case Law Developments: Green v. State of California
• For a disability discrimination claim, it is plaintiff’s burden to establish that he or she is qualified to perform the essential duties of his or her employment position, with or without reasonable accommodation
• For a failure to reasonable accommodation claim, plaintiff is not required to prove whether he or she could perform the essential functions of his or her position

Resolving Medical Leave Disputes: Lonicki v. Sutter Health Central
• CFRA, like FMLA, has 3-part dispute resolution process for resolving questions about employee’s health certificate
• Failure of employer to use this procedure does not prevent employer from later claiming employer did not suffer from a serious health condition that made her unable to do the job
• That employee could perform similar work elsewhere does not necessarily mean that employee is not entitled to leave

Disability Discrimination: King v. UPS
• It is the employee’s responsibility to present the employer at the earliest opportunity with a concise
• list of restrictions which must be met to accommodate the employee
• Can’t expect the employer to know he wanted a specific accommodation and then sue the employer for not providing it, and can’t sue the employer for failing to accommodate a disability of which it had no knowledge

Beware of Workplace Eruptions: Flores v. Autozone West, Inc.
• For an employer to be liable, incidents must be an “outgrowth” of employment or “typical of or broadly incidental to enterprise”
• “Flare-ups, frustrations and disagreements” are commonplace in workplace and may lead to
• “physical aggression”
• Employer has no legal duty to conduct thorough background check or personality screening tests


Restrictions on Officer/Manager Liability for Wage Claims: Bradstreet v. Wong
• Wage claims apply only to “employer”
• Absent statutory changes, officers and managers are not “employers”
• Potential risk under Bus. Prof. Code §17200

Supplementary Compensation OK: Prachasaisoradej v. Ralphs Grocery Co., Inc.
• No violation of wage-protection laws by providing supplementary compensation designed to reward
• employees, over and above their regular wages, if and when their collective efforts produced a positive
• financial result
• Effect: employee bonuses, beyond their regular wages, may be calculated based on costs of doing business. Should be in writing, set forth formula for calculating bonus, and no deductions after bonus amount is calculated

Generally, No Arbitration Agreements Containing Waivers for Class Actions: Gentry v. Superior Court
• Court ruled that such provisions could undermine the vindication of the employees’ unwaivable statutory rights and would pose a serious obstacle to the enforcement of the state’s overtime laws

• Court must consider the following factors:
• size of potential individual recovery
• potential for retaliation against class members
• absent class members ill informed of rights
• other real world obstacles to vindication of class members’ rights

Review Granted in “Stray Remarks” Case: Reid v. Google, Inc.
Pretext evidence:
• Discriminatory atmosphere
• Court rejected “stray remarks” rule on motion for summary judgment
• Change of position and changing rationale for termination evidence of pretext
• Statistical analysis of younger workers with better performance ratings and higher bonuses evidence of pretext
• Court rejected argument that strong inference of no discriminatory motive created if person who hired and fired was older than plaintiff


Reimbursement Obligation May Be Satisfied by Increasing Compensation:
Gattuso v. Harte-Hanks Shoppers, Inc.
• Statutory reimbursement obligation may be satisfied by paying employees enhanced compensation in the form of increases in base salary or increases in commission rates, so long as all necessary business expenses are reimbursed
• Must be means or method to apportion the enhanced compensation to labor performed vs. reimbursement for business expenses
• Mileage reimbursement pursuant to IRS standard rate presumptively O.K., but may be challenged by
• employee showing actual expenses

Have to Be Proportionate to Awarded Damages: Harman v. City and County of San Francisco
• Plaintiff awarded $30,000 and $1.1 million on in attorney fees
• Appellate court acknowledged that the damages obtained by the employee were quite disproportionate to the award of attorneys’ fees but held that the lack of proportionality did not require reversal

California Employers Not Required to Accommodate Medical Marijuana Users: Ross v. RagingWire Telecommunications, Inc.
• Employer termination of employee, who took marijuana recommended by physician to treat pain, and who test positive on pre-employment drug did not violate FEHA
• Termination was not disability discrimination
• Employer did not fail to reasonably accommodate Disability
• Nothing in text or history of Compassionate Use Act of 1996 suggests it was intended to address rights and duties of employers and employees

Court Expands the Scope of the Administrative Overtime Exemption:
Combs v. Skyriver Communications, Inc.
• Production/Administrative dichotomy not mandatory analysis for administrative exemption
• Some job functions do not lend themselves to analysis
• Wide variations in job responsibility called for finer distinctions
• Director of Network operations of internet service provider exempt
• High level problem solving and business planning
• Regularly exercised discretion and independent judgment on significant matters


NLRA Preempts California Wrongful Termination Claim Based on Employee’s “Sympathetic Ear”: Luke v. Collotype Labels USA, Inc.
• Employee claimed his employer terminated him because he had a "sympathetic ear" for fellow workers' complaints
• Employee could not bring a wrongful termination in violation of public policy claim because his claim was based on arguably unfair labor practices governed by federal labor law, and was thus pre-empted/barred by the NLRA


Individuals Cannot be Held Liable for Retaliation Claims: Jones v. The Lodge at Torrey Pines Partnership
• Individuals may not be held financially responsible for retaliation claims under the California Fair Employment and Housing Act (FEHA) This holding is consistent with:
• California Supreme Court ruling in Reno v. Baird establishing individual supervisors cannot be held personally liable for discrimination under FEHA
• Individual supervisors may not be held personally liable for retaliation in violation of public policy
• Employers may still be held liable for retaliation

Supervisors Cannot Share in Employees’ Tips: Chou v. Starbucks
• California Labor Code § 351: gratuities left by patrons are the “sole property” of the employees to whom they are left. No “employer or agent” may “collect, take, or receive” any gratuity left for an employee
• Individual may be a “supervisor,” even if he or she works amongst and side-by-side other employees.
• Ask whether individual “supervises and directs” others. If so, Court may classify individual as an “agent” who may not share in gratuity left by customers

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