Newly-Published Labor and Employment Law Cases

October 2024

Wentworth v. Regents of the Univ. of Cal. (CA1/4 A168296 9/30/24) FEHA Interactive Process and Reasonable Accommodation | Information Practices Act

Wentworth appealed summary adjudication for the University on causes of action under the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.) and the Information Practices Act (Civ. Code, § 1798 et seq.). The court affirmed summary adjudication of Wentworth’s FEHA causes of action for failure to engage in the interactive process or provide reasonable accommodation. The court reversed summary adjudication of the IPA claim, finding the evidence raised a triable issue of material fact about whether the University violated the IPA by leaking to the media a letter about student complaints against Wentworth and disclosing information about his disability accommodation at a faculty and student meeting.

Doe v. Second Street Corp. (CA2/3 B330281 9/30/24) Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) renders arbitration agreements unenforceable at the plaintiff’s election in sexual assault and sexual harassment cases that arise or accrue on or after March 3. 2022. Doe’s complaint alleged a pattern of sexual harassment and discrimination before and after EFAA’s effective date, as well as wage and hour violations. Second Street filed a motion to compel arbitration. The court affirmed the trial court’s denial of the petition, finding that (1) Doe’s sexual harassment claims arising before EFAA’s effective date were exempt from arbitration as a continuing violation, and (2) Doe’s other causes of action were also exempt from arbitration because they are part of the same “case.”

Mooney v. Fife (9th Cir. 22-16328, 23-15158, 9/30/24) False Claims Act Retaliation

While employed as the chief operating officer of Vivida Dermatology, Mooney raised concerns about Vivida’s billing practices with a dermatologist at another practice. Vivida terminated Mooney’s employment, citing unauthorized disclosure of confidential information. The court first held that the 2009 amendments to the False Claims Act protect employees from being discharged because of efforts to stop violations of the Act. The court concluded that Mooney engaged in protected conduct because he subjectively and objectively believed Vivida was possibly committing fraud against the government. The court also concluded that Vivida knew of Mooney’s protected conduct, disagreeing with other circuits that preclude protection where the employee’s job duties are to ensure compliance with billing regulations and to report irregularities. The court found Mooney established genuine issues of material fact whether the reasons for his termination proffered by Vivida were pretextual, and remanded the False Claim Act retaliation claim for trial.

Campbell v. Sunshine Behavioral Health (CA4/3 G0628869/25/24) Arbitration Waiver

Campbell filed a putative class action lawsuit against Sunshine for wage and hour violations. Sunshine negotiated and entered into a joint stipulation to participate in mediation. It then claimed to have discovered an arbitration agreement signed by Campbell. Sunshine nonetheless propounded and responded to discovery as provided for in the joint stipulation, and represented to the court that it would proceed with mediation. After the court signed the mediation order, Sunshine said for the first time that it would not participate in mediation but instead would file a petition to compel arbitration. The court affirmed the trial court’s denial of the petition, finding clear and convincing evidence supported the trial court’s finding that Sunshine’s litigation conduct waived any right to arbitration.

Miller v. Cal. Dept. of Corrections and Rehabilitation (CA4/2  E081230, filed 9/6/24, pub. 9/23/24) FEHA Disability Discrimination

Miller was injured on the job in 2016. After workers compensation benefits were exhausted, CDCR offered to demote Miller to an available position that would accommodate her work restrictions. Miller turned down the position, told CDCR she suffered from a previously undisclosed mental disability that prevented her from working during treatment, and went on unpaid leave of absence. In 2020, Miller filed suit against CDCR claiming disability discrimination, failure to accommodate, failure to engage in the interactive process, and failure to prevent discrimination and retaliation. The court affirmed the trial court’s grant of summary judgment for CDCR. Notably, the court held that CDCR did not fail to reasonably accommodate Miller by declining to file an application for disability retirement on her behalf.

Anoke v. Twitter (CA1/5 (A168675, filed 8/27/24, mod. & pub. 9/18/24) Arbitration Fees

Code of Civil Procedure section 1281.97 requires a party who invokes arbitration against a consumer or employee to pay its share of the initial arbitration fees within 30 days of the arbitrator’s invoice. The arbitrator emailed an invoice for Twitter’s share of the initial fees to all counsel. Anoke’s counsel mistakenly paid the invoice. Upon being notified of the mistake, the arbitrator issued a refund to Anoke and a new invoice to Twitter. Twitter paid the fees within 30 days of the second invoice. Anoke filed a petition to compel Twitter to pay her reasonable attorney fees and costs of the arbitration, one of the available remedies under Code of Civil Procedure section 1281.97. The court affirmed the trial court’s denial of the petition, finding that Twitter’s payment in response to the second invoice was timely even though it was made more than 30 days after the original invoice.

Dignity Health v. Mounts (CA2/6 B325563 9/17/24) Whistleblower Retaliation

Dignity Health filed a complaint to recover an advance paid to Mounts under Dignity’s Physician Recruitment Agreement. Mounts cross-complained that Dignity retaliated against him for complaining about the quality of patient care. Dignity filed an anti-SLAPP motion, which the trial court granted. The appellate court affirmed the trial court’s conclusion that Mounts had not demonstrated a probability of prevailing on the merits of his cross-complaint because Dignity’s actions were subject to the litigation privilege and the common interest privilege.

Silloway v. City & Cnty. of San Francisco (9th Cir. 22-16079 9/11/24) FLSA Overtime

To qualify for the professional employee exemption to the Fair Labor Standards Act’s overtime pay requirements, an employee must be paid a predetermined amount of compensation each week regardless of the number of days or hours worked. Staff nurses employed by the City claimed they were improperly exempted from overtime pay because their pay did not satisfy this “salary basis” test. The district court granted summary judgment for the City, finding that the City’s salary ordinance covering the staff nurses was definitive evidence that they were compensated on a salary basis. The appellate court reversed and remanded, finding there were material factual disputes over whether the City’s actual practice of paying the staff nurses satisfied the salary basis test.

Adams v. County of Sacramento (9th Cir. 23-15970 9/9/24) Public Sector Employment Retaliation | First Amendment

Adams alleged that she was forced to resign from her position as police chief over allegations that years earlier she had sent racist text messages while employed as a county sheriff’s deputy. The court found that Adams’ forwarding of racist spam images during “a friendly, casual text message conversation” with two friends who also worked for the sheriff’s department while all were off duty did not constitute a matter of public concern that would receive First Amendment protection under Pickering v. Board of Education, 391 U.S. 563 (1968). The court accordingly affirmed dismissal of Adams’ First Amendment retaliation and conspiracy claims.