• Dean Royer

Failure to promote harassment claim accrues when the employee knows or reasonably should know about the promotion decision.

July 26, 2021, California Supreme Court, Pamela Pollock v. Tri-Modal Distribution Services, Inc.: One issue before the California Supreme Court was when does the statute of limitations begin to run in a failure to promote case brought under the Fair Employment and Housing Act harassment provision. The high court determined that it does at the point the employee knows or reasonably should know of the employer’s alleged unlawful refusal to promote.

An employee’s individual wage and hour claim that is time-barred does not prevent her from pursuing a representative claim.

July 21, 2021, Fourth District Court of Appeal, Gina Johnson v. Maxim Healthcare Services, Inc.: The trial court dismissed Johnson’s Private Attorney General Act of 2004 (PAGA) claim after finding that her individual claim was time-barred. The appellate court reversed based on a California Supreme Court decision (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73) that held that an employee who settles and dismisses an individual claim may pursue a representative claim under PAGA. There are only two requirements for standing to pursue a PAGA claim: the employee was employed by the alleged violator and personally suffered the alleged violations. An individual claim is not required to pursue a PAGA claim.

Meal and rest break premium pay is based on hourly wages plus all nondiscretionary payments.

July 15, 2021, California Supreme Court, Jessica Ferra v. Loews Hollywood Hotel, LLC: The issue before the Supreme Court of California was whether the remedy of one hour of pay at the “regular rate of compensation” for violations of California’s meal and rest break laws is calculated in the same manner as the “regular rate of pay” that is multiplied by 1.5 for overtime pay. The high court decided that the terms are synonymous, meaning that meal and rest break penalties include not just the hourly wage but all nondiscretionary payments as well, e.g., incentive bonuses or piecework earnings.

Exhaustion of administrative remedies not required where decision-maker was personally embroiled in the dispute and had significant animosity toward employee.

July 1, 2021, Second District Court of Appeal, Jason Briley v. City of West Covina: After a jury awarded Briley approximately $4 million in damages for Briley’s retaliation claim, West Covina appealed. West Covina claimed that Briley was required to complete his pre-lawsuit appeal of his termination to the city’s Human Resources Commission. The Second District found that Briley was justified in abandoning that appeal because it failed to satisfy the standard of due process with a reasonably impartial, noninvolved reviewer. In particular, Briley’s supervisor, who was expected to decide the appeal, was personally embroiled in the controversy and there was significant animosity between the supervisor and Briley resulting from Briley’s complaints about the supervisor that formed the basis for the retaliation claim.

Overtime pay may be disclosed in wage statements as the premium rate (.5 of the standard) rather than the cumulative standard plus premium rate.

May 28, 2021, Fourth District Court of Appeal, General Atomics v. Superior Court: An employee sued General Atomics for inaccurate wage statements showing all applicable hourly rates and corresponding hours worked on grounds the statement showed .5 times the regular rate of pay rather than 1.5 for overtime wages. The trial court dismissed the case (summary judgment). The Fourth District affirmed, finding that the wage statements included the standard hourly rate and the overtime premium hourly rate that must be added to the standard wages to compensate the employee for working overtime. The appellate court reasoned that while other formats may also be acceptable, the format adopted by General Atomics allows employees to determine if their wages are correctly calculated.

Individual liability for wage and hour violations requires personal involvement or sufficient participation to be deemed to have contributed to unlawful acts.

May 28, 2021, Fourth District Court of Appeal, Jackie Oneal Usher v. Shirley White: Usher brought a wage and hour class action lawsuit against two communications companies and two individuals. The trial court dismissed the case (summary judgment) against one of the individuals on grounds she did not participate in the determination to classify the plaintiffs as independent contractors. The Fourth District affirmed, after determining that the California Labor Code (section 558.1) allows for individual liability only when the individual has personal involvement in the alleged unlawful acts or sufficient participation in the activities of the employer such that she may be deemed to have contributed to the unlawful acts.

Employee has standing to sue for wage statement claim but loses on the merits.

May 28, 2021, Ninth Circuit Court of Appeals, Roderick Magadia v. Wal-Mark Associates, Inc.: The Ninth Circuit concluded that Magadia lacked standing to bring a Private Attorneys General Act of 2004 (PAGA) claim against Walmart for meal-break violations because he did not suffer injury. The appellate court also determined that Magadia had standing for wage statement claims under California’s Labor Code (section 226(a)) because the omission of the statutorily required information constitutes a concrete injury. Finally, the Ninth Circuit reversed the trial court’s finding of wage statement violations because the overtime adjustment listed as a lump sum was based on performance from an entire quarter rather than an ordinary overtime pay with hourly rate.

Claims for intentional infliction of emotional distress and Unruh Act discrimination based on third party offensive comments in presentation to employer.

May 12, 2021, Fourth District Court of Appeal, Robert Smith v. BP Lubricants USA Inc.: Smith sued BP and one of its employees after the employee made several comments during a presentation at Smith’s former employer, Jiffy Lube, that Smith considered racist and offensive. The trial court dismissed the case (demurrer). On appeal, the Fourth District affirmed the dismissal of Smith’s harassment claim, which was based on an aiding and abetting theory. The appellate court decided that Smith did not and could not allege that the defendants knew of Jiffy Lube’s alleged harassment against Smith, or that defendants knew the conduct was unlawful or gave Jiffy Lube assistance or encouragement. But the Fourth District reversed with respect to Smith’s intentional infliction of emotional distress claim after finding that the BP employee’s alleged conduct of making three offensive comments in front of an audience of 50 could be found to be extreme and outrageous. The appellate court also reversed with respect to Smith’s discrimination claim under the Unruh Act after deciding that the Act covers claims based on verbal harassment and that the BP employee acted as a business establishment when he made his alleged comments.

Case alleging adverse actions of reassignment and termination is not subject to SLAPP law.

April 29, 2021, Second District Court of Appeal, Junnie Verceles v. Los Angeles Unified School District: The trial court dismissed Verceles’s case (SLAPP motion) after finding his employment discrimination and retaliation claims were based on the District’s investigation of his alleged misconduct. The court of appeal reversed on grounds Vereceles’s case was based on the District’s decisions to reassign him and terminate him.

  • Dean Royer

University of California is not subject to California’s minimum wage law.

April 23, 2021, Fourth District Court of Appeal, Guivini Gomez v. The Regents of the University of California: Gomez sued her former employer claiming the Regents failed to pay her the required minimum wages for all hours she worked resulting from a time-keeping procedure of rounding hours and deducting 30-minute meal breaks. The trial court dismissed the case (demurrer). On appeal, the Fourth District decided that California’s minimum wage law does not apply to the Regents.