• Dean Royer

December 2017 and January 2018 employment law decisions and laws

Representation action requires notice of other employees affected by the employer’s conduct.

January 22, 2018, Second District Court of Appeal, Hamid Khan v. Dunn-Edwards Corporation: Mr. Khan had a dispute with his employer regarding his final paycheck with respect to its timing and the statement that came with it. He filed a case on behalf of himself and other employees who had been similarly treated. While the lawsuit was pending, Mr. Khan gave written notice to Dunn-Edwards Corporation and the California Labor and Workforce Development Agency regarding “my claims against my former employer….” The notice did not reference any other employee. Mr. Khan filed an amended complaint to add a claim under the Labor Code Private Attorneys General Act of 2004 (PAGA). The trial court dismissed Mr. Khan’s case for, among other reasons, failing to give proper notice of the PAGA claim. The Second District concluded that the notice was deficient because it was limited to Mr. Khan’s individual claims, and, therefore, failed to give the Labor and Workforce Development Agency adequate opportunity to decide whether to investigate a representative action.

No violation of constitutional rights based on conditional language about an employee.

January 3, 2018, Ninth Circuit Court of Appeals, Ronald Kramer v. Mary Cullinan: Mr. Kramer sued the former President of Southern Oregon University alleging violations of his federal constitutional rights based on information released in connection with his termination. The trial court denied Dr. Cullinan’s request to dismiss the case. On appeal, the Ninth Circuit address the questions of whether Dr. Cullinan violated a constitutional right and whether that right was clearly established at the time of the alleged misconduct (qualified immunity defense). The Fourteenth Amendment protects liberty interests, including the right to a name-clearing hearing when the government publicly discloses stigmatizing information in the course of terminating a person’s employment. The appeals court concluded that a letter stating that insurance coverage would not be available if Mr. Kramer had engaged in bad faith or willful misconduct was not stigmatizing. The language was conditional and did not accuse him of actually engaging in misconduct.

January 1, 2018: San Francisco’s Lactation in the Workplace Ordinance became effective. It requires employers to provide employees breaks and a location for lactation and to have a policy regarding lactation in the workplace that specifies a process by which an employee will make a request for accommodation.

January 1, 2018: As of this date, covered employers with 20 or more employees are required to comply with San Francisco’s Paid Parental Leave Ordinance. This ordinance requires employers to provide supplemental compensation to employees receiving California Paid Family Leave to bond with a new child.

Verdict in favor of employee in disability discrimination and reasonable accommodation case upheld.

December 28, 2017, Ninth Circuit Court of Appeals, Tracy Dunlap v. Liberty Natural Products, Inc.: Ms. Dunlap alleged that her employer failed to accommodate her disability and engaged in disability discrimination. A jury found in favor of Ms. Dunlap for some of her claims. The trial court denied Liberty Natural Products’ request for a judgment in its favor. On appeal, Liberty Natural Products contended that the trial court gave erroneous jury instructions for the failure to accommodate claim by including elements from the discrimination claim. The Ninth Circuit decided that the trial court should have given separate instructions for each claim, but that this error was not enough to reverse the jury’s verdict. The undisputed evidence showed that Liberty Natural Products’ duty to engage in the interactive process regarding an accommodation was triggered.

Enough evidence for disability discrimination based on obesity.

December 21, 2017, First District Court of Appeal, Ketryn Cornell v. Berkeley Tennis Club: Ms. Cornell sued her employer for disability discrimination and other claims. The trial court dismissed her case before trial (summary judgment). On appeal, the First District determined that Berkeley Tennis Club failed to demonstrate that Ms. Cornell could not establish that her obesity is a disability under California law, which requires a showing of a physiological cause. The appeals court reversed the dismissal of the discrimination claim because there was evidence upon which a jury could decide the Club’s non-discriminatory explanation for the termination was false and a participant in the decision to terminate Ms. Cornell made comments suggesting discriminatory animus.

No attorney fees despite finding of disability discrimination.

December 19, 2017, Fourth District Court of Appeal, William Bustos v. Global P.E.T., Inc.: Mr. Bustos brought a disability discrimination action against his employers. A jury found that Mr. Bustos’s (perceived) physical condition was a substantial motivating reason for his termination but returned verdicts in favor of the employers. Mr. Bustos sought an award of attorney fees, which was denied. On appeal, the Fourth District reviewed the rule that a court has discretion to award attorney fees to an employee where a jury decides there was discrimination but that the employer would have taken the same adverse employment action absent discrimination or the discrimination did not result in any compensable injury. The appellate court concluded that the trial court reasonably decided that because Mr. Bustos did not recover any relief he was not a prevailing party eligible for attorney fees.

#Disability #Discrimination #PAGA #PaidParentalLeave #Reasonableaccommodation #Lactation #FourteenthAmendment #Attorneysfees

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