California Employment Law Notes - March 2017

by Proskauer - California Employment Law
Contact

Proskauer - California Employment Law

Routine Hugging Over 12-Year Period May Have Caused Hostile Work Environment

Zetwick v. County of Yolo, 2017 WL 710476 (9th Cir. 2017)

Victoria Zetwick, a county correctional officer, alleged that the county sheriff created a sexually hostile environment in violation of Title VII and the California Fair Employment and Housing Act by, among other things, greeting her and other female employees with unwelcome hugs on more than 100 occasions and a kiss at least once during a 12-year period of time. The district court granted defendants' motion for summary judgment based on their argument that the conduct was not objectively severe and pervasive and was, instead, merely innocuous, socially acceptable conduct. The United States Court of Appeals for the Ninth Circuit reversed, holding that the correct legal standard that the trial court should have applied is whether defendants' conduct was "severe or pervasive" and not "severe and pervasive."  The Court further held that the district court erred by failing to consider whether a reasonable juror would find that hugs of the kind, number, frequency and persistence described by Zetwick created a hostile environment.

Racial Harassment Claim Based On Comments Made During "Creative Process" Was Properly Dismissed

Daniel v. Wayans, 2017 WL 526494 (Cal. Ct. App. 2017)

Pierre Daniel worked as an extra on a movie entitled "A Haunted House 2," which Marlon Wayans wrote, produced and starred in. Daniel sued Wayans and others, alleging that during his one day of work on the movie he was compared to a "Black cartoon character" and was called "nigga."  Wayans moved to strike Daniel's lawsuit as a SLAPP (strategic lawsuit against public participation) pursuant to Cal. Code Civ. Proc. § 426.16, arguing that all of Daniel's claims arose from Wayans' constitutional right of free speech because the core injury-producing conduct occurred as part of the creation of the movie and its promotion over the Internet. The trial court granted Wayans' anti-SLAPP motion, dismissed Daniel's lawsuit and awarded Wayans his attorney's fees. The Court of Appeal affirmed the trial court's judgment, rejecting Daniel's assertion that the creative process occurs only when the cameras are rolling and holding that Daniel failed to produce evidence demonstrating a probability of prevailing on his claims. Specifically, the Court held that the word "nigga" as used by Wayans in this context "is not an unambiguous racial epithet in today's world, especially when used intra-racially, as it was here."  The Court also held that Daniel's claim for intentional infliction of emotional distress was properly dismissed because the alleged misconduct "falls more in the category of insults, indignities, annoyances and petty oppressions" rather than extreme, outrageous conduct. See also Melamed v. Cedars-Sinai Med. Ctr., 2017 WL 750493 (Cal. Ct. App. 2017) (Anti-SLAPP motion properly granted in connection with hospital's actions taken against physician during peer-review process); Safari Club Int'l v. Rudolph, 845 F.3d 1250 (9th Cir. 2017) (Anti-SLAPP motion properly denied where plaintiffs could show reasonable probability of prevailing on their claims for invasion of privacy, among other things, based upon defendant's surreptitious audio recording of a conversation).

Employer May Have Discriminated Against Female Supervisor Based On Gender

Mayes v. WinCo Holdings, Inc., 846 F.3d 1274 (9th Cir. 2017)

Katie Mayes worked at WinCo for 12 years in Idaho Falls, Idaho. During her last years at WinCo, she supervised employees on the night-shift freight crew. Mayes was fired for taking a stale cake from the store bakery to the break room to share with fellow employees and telling a loss prevention investigator that management had given her permission to do so. WinCo deemed Mayes' actions to constitute theft and dishonesty and also determined that her behavior rose to the level of "gross misconduct," thus rendering her ineligible for COBRA benefits.  Mayes alleged that the reason offered by WinCo for her termination was pretext and that the real reason was that the company wanted to put a man in charge of the freight crew instead of Mayes. The district court granted summary judgment in favor of WinCo, but the United States Court of Appeals for the Ninth Circuit reversed, holding that there was "ample direct evidence of discriminatory animus" from the general manager, Dana Steen, including Steen's alleged statement that she "did not like 'a girl' running the freight crew."  The Court also noted that Mayes presented evidence that WinCo replaced her with a less qualified male employee and that it was a "common, accepted practice" for supervisors to take cakes to the break room. In reversing the summary judgment, the Court further noted that if Mayes was fired for discriminatory reasons, she may be entitled to COBRA benefits (i.e., there was no "gross misconduct") and that she may be entitled to unpaid vacation benefits.

Employee Who Took CFRA Leave May Proceed With Retaliation Lawsuit

Bareno v. San Diego Community College Dist., 7 Cal. App. 5th 546 (2017)

Leticia Bareno, who worked as an assistant at San Diego Miramar College, was terminated after she failed to return from a medical leave of absence that she took pursuant to the California Family Rights Act ("CFRA"). During the course of Bareno's employment, she received several disciplinary warnings for, among other things, excessive absences, workplace disagreements, incompetence, inefficiency and neglect of duty. On February 19, 2013, the college disciplined Bareno with a three-day unpaid suspension for additional performance issues; the suspension ran from February 20 through February 22 (a Friday). At 4:30 a.m. on Monday, February 25, Bareno called her supervisor and claimed to be "sick, depressed, stressed" and said she needed to go to the hospital. She subsequently provided a "work status report" from Kaiser indicating that she needed to take a medical leave from February 25 through March 1. Bareno emailed a second "work status report," placing her "off work" through March 8, which her supervisor denied receiving. Bareno failed to show up for work on Monday, March 4, and on Friday, March 8, the college sent her a letter indicating that her unauthorized absences constituted a voluntary resignation. Although the trial court granted summary judgment to the employer, the Court of Appeal reversed, holding that an employer is obligated to "inquire further" about an employee's need for CFRA leave before terminating employment and citing the CFRA regulations that give an employee up to 15 days to provide necessary certification of the need for a medical leave. The Court further held that Bareno had submitted sufficient medical certification to support her need for medical leave.

LAPD Failed To Reasonably Accommodate Recruits Who Were Injured While Training

Atkins v. City of Los Angeles, 2017 WL 588127 (Cal. Ct. App. 2017)

A jury found that the City of Los Angeles violated the rights of five recruit officers of the LAPD under the Fair Employment and Housing Act when the Department terminated or constructively discharged them after they sustained injuries during training at the Police Academy. Judgment was entered for plaintiffs after the jury awarded them over $12 million in damages. The Court of Appeal affirmed in part and reversed in part, holding that substantial evidence did not support the jury's verdict that the City discriminated against the plaintiffs because they could not perform the essential functions of a police recruit even with a reasonable accommodation. However, the Court held that the City failed to reasonably accommodate the recruits by reassigning them until they were healed or their disabilities became permanent. The Court further held that the jury's award of future economic damages was based upon plaintiffs' expert's testimony that "simply assumed" the plaintiffs would have completed their Academy training and probationary period and remained police officers for over 25 years without any evidence of the likelihood that they would "run the table from Academy to retirement."  Accordingly, the Court directed the trial court to grant the City's motion for a new trial on future economic damages only.

Millwrights Could Proceed With Hostile Work Environment Claim

Reynaga v. Roseburg Forest Prods., 847 F.3d 678 (9th Cir. 2017)

Efrain Reynaga and his son Richard Reynaga, who worked as millwrights for Roseburg Forest Products, were the only millwrights of Mexican descent at the company. Efrain alleged that during the course of his employment he was subjected to disparate treatment and a hostile work environment based on his race or national origin. Efrain alleged that a contentious relationship had developed with lead millwright Timothy Branaugh who allegedly had harassed Efrain with racially disparaging comments. Following an investigation into Efrain's allegations, Roseburg rearranged Branaugh's work schedule so that he would not be on the same shift as Efrain. When Branaugh was subsequently scheduled to work the same shift as the Reynagas (despite the rearrangement of Branaugh's schedule), they refused to work and their employment was terminated. The district court granted summary judgment in favor of Roseburg, but the United States Court of Appeals for the Ninth Circuit reversed, holding that Branaugh's demeaning comments that directly referenced race were not "offhand comments" or "mere offensive utterances" and were sufficiently severe or pervasive to create a hostile work environment. The Court also held there was sufficient evidence of disparate treatment and retaliation to preclude entry of summary judgment for Roseburg. See also Hamilton v. Orange County Sheriff's Dep't, 2017 WL 591412 (Cal. Ct. App. 2017) (trial court abused its discretion by failing to accommodate counsel's joint request for a 60-day continuance prior to granting summary judgment); Van v. Language Line Servs., Inc., 8 Cal. App. 5th 73 (2017) (trial court abused its discretion by sanctioning plaintiff and finding her in contempt for failing to attend her deposition where there was no court order in place compelling her attendance).

Court Properly Dismissed PAGA And Class Action Claims

Silva v. See's Candy Shops, Inc., 7 Cal. App. 5th 235 (2017)

The Court of Appeal held that the trial court properly granted summary judgment to See's Candy as to the class-certified claims for failure to properly pay wages as a result of the employer's rounding and grace-period policies, based on expert testimony that employees were paid for all of their work under See's Candy's policies. However, the trial court erred in granting summary adjudication on Pamela Silva's individual claims for meal/rest period and expense reimbursement violations because See's Candy did not move for summary adjudication on those claims – though it did request leave to amend its summary judgment notice to add the alternate summary adjudication request. The Court affirmed summary adjudication of the Private Attorney General Act ("PAGA") claims on the ground that Silva could not prevail on her rounding/grace-period claims and because she failed to provide any evidence in support of a PAGA claim based on anything other than the rounding/grace period issues.

Auto Dealership Service Advisors Are Not Exempt From Federal Overtime Requirements

Navarro v. Encino Motorcars, LLC, 845 F.3d 925 (9th Cir. 2017)

An amendment to the Fair Labor Standards Act ("FLSA") exempts from its overtime requirements "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements."  The U.S. Department of Labor ("DOL") subsequently issued an opinion letter and amended its Field Operations Handbook to state that service advisors also are exempt from overtime under the statute. However, in 2011, the DOL issued a new rule that limited the exemption only to employees who sell automobiles, trucks, or farm implements, thus giving service advisors a right to overtime under the FLSA. In this opinion, the United States Court of Appeals for the Ninth Circuit held (following remand from the United States Supreme Court) that service advisors do not fall within the exemption from the FLSA's overtime-compensation requirement.

Employees Paid On Commission Are Entitled To Separate Compensation For Rest Periods

Vaquero v. Stoneledge Furniture LLC, 2017 WL 776635 (Cal. Ct. App. 2017)

Ricardo Bermudez Vaquero and Robert Schaefer, who were employed as sales associates for Stoneledge Furniture, filed a class action, alleging that Stoneledge's commission pay plan violated California law because it did not provide separate compensation to employees for any non-selling time such as time spent in meetings, attending certain types of training sessions and during rest periods. The trial court granted summary judgment in favor of Stoneledge, but the Court of Appeal reversed, holding that the applicable Wage Order requires employers to separately compensate covered employees for rest periods if the compensation plan does not already include a minimum hourly wage for such time.

Employer Violated FCRA By Including Liability Waiver In Disclosure Statement

Syed v. M-I, LLC, 846 F.3d 1034 (9th Cir. 2017)

When Sarmad Syed applied for a job with M-I, he was given a "Pre-employment Disclosure Release," which informed him that his credit history and other information could be collected and used as a basis for the employment decision; the document also stated that by signing it, Syed was waiving his right to sue M-I and its agents for any violations of the Fair Credit Reporting Act ("FCRA"). In his putative class action lawsuit against M-I, Syed alleged that M-I's inclusion  of the liability waiver in the FCRA disclosure document violated the statute, which requires that the disclosure document consist "solely" of the disclosure. The district court dismissed the lawsuit, but the United States Court of Appeals for the Ninth Circuit reversed, holding that M-I violated the FCRA by including a liability waiver in the same document as its disclosure, which must consist "solely of the disclosure."  The Court further held that M-I's statutory violation was willful as a matter of law and was not barred by the two-year statute of limitations (Syed was unaware that M-I had actually procured his consumer report until he reviewed his personnel file).

Employer Not Vicariously Liable For Injuries Caused By Employee In Auto Accident

Lynn v. Tatitlek Support Servs., Inc., 2017 WL 696008 (Cal. Ct. App. 2017)

The Lynns sued TSSI in this wrongful death action arising from an automobile accident involving TSSI's temporary employee, Abdul Formoli. The Lynns contend that the "going and coming" rule, precluding employer vicarious liability, does not apply based upon the nature of Formoli's employment – namely, that the remoteness of the jobsite required Formoli to undertake a lengthy commute home after working long hours. The trial court granted summary judgment in favor of TSSI based on the "going and coming rule."  The Court of Appeal affirmed, holding that none of the exceptions to the rule (incidental benefit, compensation for travel time or the special risk doctrine) applied.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Proskauer - California Employment Law | Attorney Advertising

Written by:

Proskauer - California Employment Law
Contact
more
less

Proskauer - California Employment Law on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.