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  • Dean Royer

Gender discrimination verdict reversed based on trial court’s series of errors.

April 23, 2020, Second District Court of Appeal, Lauren Pinter-Brown v. The Regents of the University of California: Dr. Pinter-Brown sued The Regents for gender discrimination and a jury found in her favor and awarded $13 million in damages. The appellate court reversed because the trial court committed a series of errors that prejudiced The Regents’ right to a fair trial by an impartial judge: (1) the court delivered a presentation to the jury highlighting major figures in the civil rights movement and told the jury it was their duty to stand in the shoes of Dr. Martin Luther King; (2) the court allowed the jury to hear about and view a long list of discrimination complaints from across the entire UC system that were not connected to Dr. Pinter-Brown’s circumstances or theory of the case; (3) the court allowed the jury to learn the contents and conclusion of a report documenting racial discrimination occurring throughout the entire UCLA campus; and (4) the court allowed Dr. Pinter-Brown to resurrect a retaliation claim after the close of evidence despite having dismissed that claim prior to trial.

After-acquired evidence may be used in federal disability discrimination cases for the issue of whether the employee was qualified for their position.

April 17, 2020, Ninth Circuit Court of Appeal, Sunny Anthony v. TRAX International Corporation: Ms. Anthony sued TRAX for disability discrimination. During the course of the case, TRAX discovered that Ms. Anthony lacked a required degree for the position she held. The Ninth Circuit concluded that this “after-acquired evidence” could be used by TRAX to show that Ms. Anthony was not qualified for her position, and, therefore, not protected under the federal disability discrimination law.

Staffing agencies uninvolved in promotion decisions cannot be held liable for a failure to promote claim.

April 7, 2020, Second District Court of Appeal, Bonnie Ducksworth v. Tri-Modal Distribution Services et al.: Ms. Ducksworth and another employee, Pamela Pollock, sued Tri-Modal and two staffing agencies that supplied them to Tri-Modal for race discrimination in promotion decisions. The appellate court affirmed the dismissal of the case against the staffing agencies because they were uninvolved in Tri-Modal’s decisionmaking about whom to promote. Ms. Pollack also had a harassment claim against Tri-Modal’s executive vice president arising from promotion decisions. The Second District also affirmed the dismissal of Ms. Pollack’s case against the executive vice president because it was filed too late (statute of limitations). It determined that the statute of limitations began running when Tri-Modal told employees they have been given a promotion (and not when the promoted worker started the new work).

Federal sector employees may prove age discrimination without showing their age was the but-for cause for an adverse employment action.

April 6, 2020, U.S. Supreme Court, Babb v. Wilkie, Secretary of Veterans Affairs: The high court decided that the age discrimination law for federal-sector employees does not require a showing that age was a but-for cause of an adverse employment action. The law’s language that “all personnel actions affecting employees or applicants for employment who are at least 40 years of age…shall be made free from any discrimination based on age” creates a more protective standard as compared to the law covering state and private sector employees. At the same time, in order to recover reinstatement, backpay, and compensatory (non-economic) damages, federal employees must satisfy the but-for cause standard.

Payment of accrued vacation time required even when there is no specific time off limit.

April 1, 2020, Second District Court of Appeal, Teresa McPherson v. EF Intercultural Foundation, Inc.: California’s Labor Code requires an employer to pay all unused, vested (accrued or earned) vacation time when an employee separates. The court of appeal decided that under the circumstances of this particular case, this requirement applied to the employer’s paid time off policy in which it did not promise its employees a specific amount of paid vacation that they would accrue or expressly tell them the paid time off was unlimited (and a limit was implied). But the Second District also stated that the requirement to pay vested vacation time does not apply to all unlimited paid time off policies.


#Evidence #Vacationpay #Disability #Statuteoflimitations #Federalemployees #Discrimination #Promotion

  • Dean Royer

Employees must be paid for shifts for which they make themselves available to work.

March 19, 2020, Ninth Circuit Court of Appeals, Alexia Herrera v. Zumiez, Inc.: California law requires employers to provide “reporting time pay” to retail employees who report for work but are not actually provided work. Ms. Herrera filed a class action alleging that Zumiez failed to pay its employees reporting time pay for “call-in” shifts during which employees must make themselves available to work even though they may not be required to work. While this appeal was pending, a California Court of Appeal decided in a factually similar case involving “on-call” shifts that the employer had to provide reporting time pay. The Ninth Circuit determined that it would follow the decision in that case.


Employees can bring representative actions for Labor Code violations even if they settle and dismiss their individual actions for the same violations.

March 12, 2020, Justin Kim v. Reins International California, Inc.: In this case of first impression, the California Supreme Court had to determine whether an employee who settles and dismisses their individual claims for Labor Code violations loses standing to pursue a representative claim under the Labor Code Private Attorneys General Act of 2004 (PAGA). It concluded that the answer is no. The PAGA law only has two requirements for standing: the plaintiff must be someone who was (1) employed by the defendant and alleged violator, and (2) suffered (along with other employees) one or more of the alleged violations.


Employees must name their employer in a complaint with the Department of Fair Employment and Housing prior to filing suit.

March 10, 2020, Second District Court of Appeal, Judy Alexander et al. v. Community Hospital of Long Beach: The three nurses who brought this case previously filed complaints with the Department of Fair Employment Housing (DFEH), naming Community Hospital of Long Beach and two individuals as potential defendants; and later, Memorial Counseling Associates Medical Group (MCA), which  was founded by the hospital to supply physicians for patients in the hospital’s mental health ward. They did not name Memorial Psychiatric Health Services (MPHS), which was founded by the hospital to run the ward. The nurses then filed suit, naming the hospital and MCA as defendants; and later, MPHS. The court of appeal decided that the nurses’ failure to name MPHS in the DFEH complaint precluded them from pursuing claims against MPHS in the civil case.


Prior rate of pay cannot be used to justify paying women less than men who perform the same work.

February 27, 2020, Ninth Circuit Court of Appeals, Aileen Rizo v. Jim Yovino: The federal Equal Pay Act allows for women to be paid less than men who perform the same work if the pay difference is based on a factor other than sex. The Ninth Circuit concluded that Ms. Rizo’s prior rate of pay is not a factor other than sex that justified her lesser pay. Only job-related factors are allowed.


#DFEH #Equalpay #PAGA #Wageandhour

  • Dean Royer

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