• Dean Royer

FMLA willful interference claim requires proof of employer’s knowledge that its conduct is against the law.

November 23, 2020, Ninth Circuit Court of Appeals, Andrea Olson v. USA: Ms. Wilson sued her federal agency employer alleging a violation of the Family and Medical Leave Act (FMLA) for a willful failure to provide her notice of FMLA rights. The trial court decided that the agency did not willfully interfere with Ms. Wilson’s rights. On appeal, the Ninth Circuit determined that while employers have a duty to inform their employees of FMLA entitlements, the failure to provide notice of them does not result in an interference claim. Instead, the employee must prove that the employer’s conduct made her less likely to exercise her FMLA rights because she could expect to be fired or otherwise disciplined for doing so. The appellate court also concluded that proof of willful interference requires evidence of the employer’s knowledge of, or reckless disregard for, its conduct being prohibited by law. The Ninth Circuit concluded that the trial court’s decision was not clearly in error.

Commission only pay does not satisfy California’s overtime pay exemption.

November 9, 2020, Fourth District Court of Appeal, Joseph Semprini v. Wedbush Securities, Inc.: An exception to California’s overtime law is when the employee is employed in an administrative capacity, performs certain duties, and is paid a monthly salary equivalent to at least twice the state minimum wage for full-time employment. The Fourth District addressed the issue of whether a compensation plan based solely on commissions qualifies as salary for purposes of this exception. The appellate court concluded that it does not because a federal regulation concerning overtime pay allows only up to ten percent of the salary to be satisfied by commissions and defines salary as a predetermined amount.

Jury verdict in whistleblower case reversed based on questions that allowed the jury to draw negative inferences from an exercise of attorney-client privilege.

October 23, 2020, Third District Court of Appeal, Kathleen Carroll v. Commission on Teacher Credentialing: A jury found in favor of Ms. Carroll in this whistleblower retaliation case and awarded nearly $3 million. On appeal, the Commission contended that a federal court decision that a State Personnel Board (SPB) decision against Ms. Carroll dismissing a federal claim also barred the state law claims that were presented to the jury (claim preclusion). The Third District concluded that the federal court’s dismissal of Ms. Carroll’s case was not on the merits for purposes of federal preclusion law, which means the state court was not precluded from hearing the remaining state law claims. The Commission also argued that the SPB decision barred the state law claims because the same issues presented to the SPB were present in the state case (issue preclusion). The Third District determined that a California Supreme Court decision (State Bd. of Chiropractic Examiners v. Superior Court (2009) 45 Cal.4th 963 (Arbuckle), which held that an SPB decision dismissing a retaliation complaint does not preclude the employee from filing a civil case under the California Whistleblower Protection Act, applied. Finally, the Commission asserted that the trial court abused its discretion by allowing Ms. Carroll’s counsel to question Commission witnesses about why they sought legal advice so that the jury could draw negative inferences from the Commission’s exercise of the attorney-client privilege and refused to issue a curative jury instruction. The court of appeal agreed and reversed the jury verdict.

Employer that fired an employee based on an erroneous criminal conviction history report must reinstate the employee with back pay.

October 15, 2020, First District Court of Appeal, Lilia Garcia-Brower v. Premier Automotive Imports of CA, LLC: The Labor Commissioner determined that Premier Automotive unlawfully terminated Tracey Molina for falsifying her job application based on an erroneous DMV report that Ms. Molina had an active criminal conviction. When Premier Automotive failed to comply with the Labor Commissioner’s order to reinstate Ms. Molina with back pay, the agency filed this enforcement case. The trial court dismissed the action on grounds there was no evidence Premier Automotive was aware at the time it terminated Ms. Molina that her conviction had been judicially dismissed. On appeal, the First District determined that whether Premier Automotive conducted an adequate investigation of the conflicting background checks or information disclosed at a termination meeting before filing Ms. Molina created disputed factual questions about Premier’s motivations for terminating her. The appellate court concluded that Premier Automotive was not insulated as a matter of law from its rushed employment decision in light of the protections embodied in Labor Code sections 98.6 (which prohibits employers from retaliating an employee because they exercised a right protected under the Labor Code) and 432.7 (which prohibits the misuse of criminal offender records information).

Doctor not required to reverse a hospital’s decision to dissolve a referral panel before proceeding with his retaliation claim that he stopped receiving referrals after reporting an illegal referral scheme.

September 29, 2020, Second District Court of Appeal, Arash Alborzi v. University of Southern California: Dr. Alborzi sued USC alleging that after he complained to management that it entered into an illegal referral and kickback scheme to pay below-market rates for hospitalist services it stopped referring patients to him. The trial court dismissed the case (demurrer) on grounds Dr. Alborzi had to first file a special action (writ) to reverse USC’s decision to dissolve the on-call panel from which Dr. Alborzi had received referrals. The Second District found that based on Dr. Alborzi’s allegations, the on-call panel decision was not quasi-legislative, but, rather, targeted at him and retaliatory. The appellate court also concluded that the allegations did not disclose any administrative decision-making process that Dr. Alborzi was required to continue to completion.

  • Dean Royer

Case alleging employer’s confidentiality agreement violates employees’ speech may proceed.

September 21, 2020, First District Court of Appeal, John Doe v. Google, Inc.: current and former employees of Google sued the company under the Private Attorneys General Act of 2004 (PAGA) alleging its confidentiality policies restricted their whistleblower rights and free speech in violation of California law. The trial court dismissed the case (demurrer) on grounds the National Labor Relations Act preempts the employees’ claims. The appellate court concluded that although many of the employee’s claims relate to conduct with the scope of the NLRA, the claims fall within the local interest exception to preemption.

Employees denied pay for rest periods cannot recover damages under more than one law.

September 11, 2020, Third District Court of Appeal, Alfredo Sanchez et al. v. Miguel A. Martinez: Five farm laborers filed suit against their former employer alleging violations of various labor laws. The case went to trial and the trial court awarded $416 in damages and $17,775 in civil penalties based on the employer’s failure to pay the employees for time they spent on authorized rest periods. The appellate court rejected the employees’ argument that they were entitled to damages equal to the minimum wage for time spent on rest periods plus an additional hour of pay for each rest period. Although either recovery is authorized by separate laws, recovery under both would be a double recovery for the same harm.

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