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Louisiana law applies to wage and hour claims by employees who perform some work off the coast of California.

February 18, 2020, Second District Court of Appeal, Gulf Offshore Logistics, LLC v. Superior Court of Ventura County: Former crew members of a ship that provides maintenance services to oil platforms off the California coast alleged violations of California’s wage and hour laws. The appellate court decided that Louisiana, not California, law applied because the employees lived outside of California, worked for a Louisiana-based employer, performed some work inside California’s territorial waters (on the ship) but otherwise had no significant contact with California, and the management and administration of the employment relationship was performed in Louisiana.


Employers must pay for employee time spent waiting and undergoing exit searches of personal items brought to work.

February 13, 2020, Supreme Court of California, Amanda Frlekin v. Apple Inc.: The Ninth Circuit Court of Appeals requested that the Supreme Court of California decide whether the time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages, bags, or personal technology devices voluntarily brought to work for personal convenience by employees must be paid. The court’s answer was yes because the employees were under Apple’s control during the searches: the searches are mandatory and conducted on Apple property, and Apple requires its employees to perform supervised tasks while waiting for and during the searches.


#Minimumwage #Wageandhour

The time to file an administrative discrimination claim can be extended by the filing of a workers’ compensation claim; and the filing deadline period starts at the end of ongoing discriminatory conduct or with a constructive termination.

January 28, 2020, First District Court of Appeal, Jay Brome v. California Highway Patrol: Mr. Brome’s claims for harassment and sexual orientation discrimination were not barred by the statute of limitations because the one-year period to file with the Department of Fair Employment and Housing was tolled while a workers’ compensation claim was pending; a jury could conclude that there was harassment that continued to within the limitations period extended by the tolling; and a jury could conclude that Mr. Brome was constructively terminated when he resigned less than one year before he filed with the Department.


Employees’ do not prevail on sexual harassment claims.

January 22, 2020, Second District Court of Appeal, Tamika Schmidt v. Superior Court: Court verdict finding no sexual harassment against two court employees is affirmed because the court properly applied the applicable law and did not exhibit bias amounting to a due process violation.

Unionized federal employees may only bring discrimination claims through either their union’s grievance procedure or their agency’s Equal Employment Opportunity office.

January 16, 2020, Ninth Circuit Court of Appeals, Garry Heimrich v. United States Department of the Army: Mr. Heimrich could not pursue a wrongful termination claim before his agency’s Equal Employment Opportunity office because he previously raised the same matter in a union grievance: in both instances the underlying action was premised on a termination motivated by race, retaliation, and disability.


Employers cannot use acronyms in wage statements and PAGA claims need only cite the applicable Labor Code section.

December 26, 2019, Third District Court of Appeal, Mohammed Noori v. Countrywide Payroll & HR Solutions, Inc.: Mr. Noori asserted a valid claim for failure to provide a proper itemized wage statement because the employer’s name was indicated only by an acronym; and a valid claim under the Private Attorneys General Act of 2004 (PAGA) by citing the Labor Code section (as opposed to the specific subdivision) that was allegedly violated; but his failure to maintain wage statements claim failed because the employer’s failure to state its name in the statements was not an actionable injury.


State defendants cannot avoid liability for claims by removing cases to federal court.

December 23, 2019, Ninth Circuit Court of Appeals, Donald Walden, Jr. v. State of Nevada: A State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including the Fair Labor Standards Act claim in this case.


Fourth District claims no adverse action based on rejection of accommodation requests despite statutory and case law authority to the contrary; and affirms dismissal of interactive process and reasonable accommodation claims on grounds the employee did not identify his particular disability despite case law emphasizing the discussion of limitations resulting from the disability.

December 19, 2019, Fourth District Court of Appeal, John Doe v. Department of Corrections and Rehabilitation: Dismissal (summary judgment) of Mr. Doe’s disability discrimination, retaliation, and harassment claims was affirmed because criticism of Mr. Doe’s work, ordering a wellness check when Mr. Doe was out sick, suspecting Mr. Doe of bringing a cell phone to work, and assigning Mr. Doe as primary crisis person on the day he had a union meeting did not amount to an adverse employment action. The Fourth District further affirmed the dismissal on grounds that no court had ever held a failure to accommodate a disability is an adverse employment action, despite a 2002 case (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344) that did and the statute specifically providing that failure to accommodate is an adverse action (Government Code section 12940(m)(1)). The dismissal of Mr. Doe’s interactive process and accommodation claims was affirmed on grounds Mr. Doe was responsible for the breakdown in the accommodation discussions because he did not identify his disability, despite case law providing that the focus of such discussions is on the employee’s limitations, not specific disabling conditions.


No punitive damages against public entities available under whistleblower law.

December 17, 2019, Fifth District Court of Appeal, Visalia Unified School District v. Superior Court: Award of punitive damages to employee who sued Visalia Unified School District under the whistleblower statute covering public school employees (Education Code section 44110 et seq.) was reversed based on public entity immunity to punitive damage awards.

Verdict in favor of employee of religious organization upheld under federal, but not state, law.

December 12, 2019, Sixth District Court of Appeal, Jeremiah Mathews v. Happy Valley Conference Center, Inc.: Verdict in favor of Mr. Mathews upheld with respect to his retaliation claim under federal law (Title VII) because the jury properly concluded that Happy Valley and the Community of Church, of which Happy Valley was an affiliate, were joint employers collectively employing more than 15 employees based on common ownership, closely intertwined management, interrelated operations, and evidence showing Mr. Mathews’ termination was influenced or even dictated by the Church. But the verdict in favor of Mr. Mathews with respect to his retaliation claim under state law (Fair Employment and Housing Act) was reversed because religious associations or non-profit corporations (other than hospitals and schools) are completely exempt from FEHA claims and Happy Valley did not waive this exemption.

#Wagestatements #Constructivetermination #Harassment #Administrativeexhaustion #Wageandhour #Immunity #PAGA #Interactiveprocess #Religiousorganization #Punitivedamages #Reasonableaccommodation #Adverseaction #Retaliation

Federal employee’s case that named the wrong defendant is still timely.

November 14, 2019, Ninth Circuit Court of Appeals, Alisha Silbaugh v. Elaine Chao: Ms. Silbaugh filed her case concerning her employment with the Federal Aviation Administration within the time limits (statue of limitations) but named the wrong defendant. After the limitations period ran, the FAA moved to dismiss the action on grounds the case had to be filed against the head of the executive agency to which the FAA belongs. Ms. Silbaugh responded by filing an amended complaint that named the Secretary of Transportation (Ms. Chao) as the defendant. The district court denied FAA’s motion to dismiss as moot. Ms. Chao filed a motion to dismiss on grounds the amended complaint was not timely because it did not “relate back” to the original complaint. The district court agreed. On appeal, the Ninth Circuit reviewed a federal rule of civil procedure (15(c)) that provides that an amendment relates back to the original complaint when a United States officer or agency is added as a defendant if the original complaint and summons was served on the United States attorney, the Attorney General, or the officer or agency within a 90-day period. Because Ms. Silbaugh timely served the United States attorney and Attorney General her amendment to re-name the defendant related back. Accordingly, the Ninth Circuit reversed the dismissal.


Disability discrimination need not be based on animus or ill will.

November 13, 2019, Second District Court of Appeal, John Glynn v. Superior Court of Los Angeles County: Mr. Glynn sued his employer for disability discrimination. The case arose from a temporary benefits staffer mistakenly thinking Mr. Glynn had transitioned from short term disability to long term disability and was unable to work with or without an accommodation. On that basis, the staffer terminated Mr. Glynn. For months the employer ignored Mr. Glynn’s efforts to correct the misunderstanding. The issue before the court of appeal was whether this constituted direct evidence of disability discrimination. Under the direct evidence method of proof the employee must show that his employer knew of his disability and the disability was a substantial motivating reason for an adverse employment action such as termination. The court of appeal reviewed a prior appellate decision in which the court concluded that animus or ill will was not required to prove discriminatory intent; rather, the disability discrimination law protects employees from erroneous or mistaken beliefs about the employee’s disability. In this case, the termination letter stated that Mr. Glynn’s employment ended due to his inability to return to work with or without an accommodation. As a result, the court of appeal concluded that Mr. Glynn’s case could not be dismissed (summary judgment).


Each payment of an alleged discriminatory disability check triggers a new statute of limitations period.

October 31, 2019, First District Court of Appeal, Joyce Carroll v. City and County of San Francisco: Ms. Carroll sued her former employer as a class representative claiming that San Francisco discriminated based on age by providing reduced disability retirement benefits to older employees who took disability retirement after working for the City for less than 22.22 years. A required administrative charge with the Department of Fair Employment and Housing was filed more than 17 years after Ms. Carroll retired. The trial court dismissed the case (demurrer) on grounds the DFEH charge was filed too late (statute of limitations). The court of appeal decided that the one-year limitations period started each time Ms. Carroll received a discriminatory disability payment. Therefore, the dismissal was reversed.


Employer’s service charge may be considered a tip that must be distributed to employees.

October 31, 2019, First District Court of Appeal, Lauren O’Grady v. Merchant Exchange Productions, Inc.: Ms. Grady sued her employer as a class representative asserting a failure to distribute tips (gratuities). Merchant Exchange Productions added a mandatory “service charge” to the contract for every banquet facility it provided and distributed only some of the charge to managerial employees who did not serve food and beverages at the banquet. Ms. Grady alleged that she and other employees who served food and beverages were entitled to the entire service charge as a tip as required by California’s Labor Code (section 351). The court of appeal decided that a service charge can meet the Labor Code’s definition of a tip and that Ms. O’Grady’s complaint sufficiently alleged a violation of law.


#Disability #Tips #Statuteoflimitations #Discrimination #Wageandhour

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