• Dean Royer

July 2021 employment law decisions

Discipline resulting from peer review process is not protected by anti-SLAPP law.

July 29, 2021, California Supreme Court, Aram Bonni v. St. Joseph Health System: Bonni alleged that the defendant hospitals and medical staff unlawfully retaliated against him for raising concerns about patient care, by suspending his staff privileges and then terminating those privileges after peer review. The hospitals filed a special motion to strike (anti-SLAPP motion) on grounds that the claim arose from protected activity, namely a peer review process. The trial court granted the motion, but the court of appeal reversed. The California Supreme Court decided that some alleged forms of retaliation—statements made during and in connection with the peer review proceedings and disciplinary reports filed with official bodies—qualify as protected activity; but that the discipline imposed through the peer review process does not.

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.

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