Employment Law Case Notes

by

Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

EEOC Is Entitled to More Information From Employer in Connection With Sex Discrimination Case

EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. 2015)

Damiana Ochoa filed a charge with the EEOC alleging sex discrimination (based on pregnancy) in violation of Title VII. When she tried to return to her job following maternity leave, her employer (McLane Co.) informed her that she could not come back to the position she had held for eight years as a cigarette selector unless she passed a physical strength test. Ochoa took the test three times but failed to pass and, as a result, her employment was terminated. McLane disclosed that it administers the test to all new applicants and to employees returning from a leave that lasts longer than thirty days. Although McLane voluntarily provided general information about the test and the individuals who had been required to take it (gender, job class, reason for taking the test and the score received), it refused to disclose "pedigree information" for each test taker (name, social security number, last known address, telephone number, and the reasons why particular employees were terminated after taking the test).

In this EEOC subpoena enforcement action, the district court refused to compel production of the pedigree information, but the United States Court of Appeals for the Ninth Circuit reversed that order in this opinion. The Ninth Circuit also vacated the district court’s order denying enforce-ment of the subpoena’s request for reasons for termination of employees who took the test and ordered consideration by the district court of whether requiring production of such information would in fact be unduly burdensome. See also CVS Pharmacy, Inc. v. Superior Court, 241 Cal. App. 4th 300 (2015) (trial court abused its discretion by ordering employer to disclose names and contact information of current and former employees to plaintiff, who lacked standing to lead class challenging automatic termination policy for employees who failed to work any hours for forty-five consecutive days).

Court Affirms $118,000 Verdict in Favor of Fired Employee Who Reported a Crime To the Police

Cardenas v. M. Fanaian, D.D.S., Inc., 240 Cal. App. 4th 1167 (2015)

Rosa Lee Cardenas was terminated from her employment as a dental hygienist after she made a report to the police department that a coworker may have stolen her wedding ring at her workplace. Cardenas sued her employer (Dr. Fanaian) on the grounds that she was retaliated against in violation of Labor Code section 1102.5 (forbidding an employer from retaliating against an employee who has reported a violation of the law to a law enforcement agency) and was wrongfully terminated in violation of public policy. The jury found in favor of Cardenas and awarded her approximately $118,000 in damages. The court of appeal affirmed the judgment in favor of Cardenas on the ground that a section 1102.5 claim does not require proof of a violation of a fundamental public policy and need not involve violations of law arising out of the employer’s business activities. See also Nosal-Tabor v. Sharp Chula Vista Med. Ctr., 239 Cal. App. 4th 1224 (2015) (nurse could proceed with whistleblower case arising from termination after she complained about and refused to perform nurse-led testing that may have violated the law).

Terminated Actress Was Not Required to Exhaust Administrative Remedies Before Suing for Retaliation

Sheridan v. Touchstone Television Prods., LLC, 241 Cal. App. 4th 508 (2015)

Nicollette Sheridan sued Touchstone after her contract on Desperate Housewives was not renewed, alleging that her termination was in retaliation for her complaint about a battery allegedly committed by show creator Marc Cherry. The trial court sustained Touchstone’s demurrer to the complaint on the ground that Sheridan had failed to exhaust her administrative remedies by first filing a claim with the Labor Commissioner. The court of appeal reversed, holding that the trial court’s reliance upon a now depublished opinion and a statutory framework that has since been amended (Labor Code §§ 98.7(g) and 244 – now expressly stating that administrative remedies need not be exhausted) was misplaced. Accordingly, the reversal was dismissed and the trial court was ordered to vacate its order sustaining Touchstone’s demurrer and to enter a new order overruling the demurrer to the complaint.

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Employees Who Allegedly Breached Employer’s Computer Use Policies Did Not Violate CFAA

SunPower Corp. v. SunEdison, Inc., No. 15-cv-02462-WHO, 2015 U.S. Dist. LEXIS 121587, 2015 WL 5316333 (N.D. Cal., Sept. 11, 2015)

Three former employees of SunPower were sued for allegedly breaching SunPower’s computer use policies by accessing files while they were still employed by SunPower that they allegedly later provided to their new employer (SunEdison). SunPower alleged that defendants violated the federal Computer Fraud and Abuse Act (the CFAA) by breaching its computer policies when they connected USB drives to SunPower’s network and copied and stored SunPower’s files onto these devices. The district court granted defendants’ motion to dismiss the CFAA claim, holding that the CFAA is "an anti-hacking statute, not a misappropriation statute."

Employee Who Was Exposed to Asbestos at Home Was Limited to Workers’ Compensation Remedy

Melendrez v. Ameron Int’l Corp., 240 Cal. App. 4th 632 (2015)

For approximately 24 years, Lario Melendrez worked for Ameron, where he was exposed to asbestos in the manufacture of Ameron’s Bondstrand pipe products. In 2011, Melendrez died of asbestos-related mesothelioma. His survivors filed this wrongful death action against Ameron, alleging that in addition to his workplace exposure to asbestos, he was permitted to take waste or scrap pipe home where he was exposed to asbestos in using the pipe for home projects. Ameron moved for summary judgment on the ground that the Workers’ Compensation Act was the sole and exclusive remedy available to Melendrez’s survivors. The trial court granted the motion, and the court of appeal affirmed, holding that the workers’ compensation law is to be liberally construed in favor of awarding workers’ compensation benefits, not in permitting civil litigation. The court also affirmed the award to Ameron of $80,719 in expert witness fees that were incurred after it had served a reasonable offer to compromise upon plaintiffs (an offer to waive recovery of costs of suit in exchange for dismissal of the action) pursuant to Cal. Civ. Code § 998. See also Vebr v. Culp, 241 Cal. App. 4th 1044 (2015) (homeowner was not liable for injuries sustained by employee of painting contractor).

Trial Court Improperly Failed to Certify Class Action for Unpaid Overtime

Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388 (2015)

Valerie Alberts and others, formerly employed as members of the nursing staff at two acute care psychiatric hospitals owned and operated by Aurora, claimed that Aurora’s uniform practices and de facto policies routinely denied nursing staff employees their meal and rest periods and overtime payments. Plaintiffs sought class certification on behalf of approximately 1,053 putative class members. The trial court denied class certification on the ground that plaintiffs’ motion relied too heavily "on anecdotal evidence to prove the existence of a systematic violation of overtime and break laws." The court of appeal reversed, holding that there was substantial evidence of understaffing that resulted in a denial of breaks to the class. The court further held that reversal was required with respect to the overtime and off-the-clock compensation claims. As for the meal and rest break claims, the court determined it was unclear from the record whether common issues predominated over individual ones. The court remanded the remaining claims regarding certification of subclasses for waiting time penalties and inaccurate itemized wage statements for further consideration regarding predominance and manageability. See also Tellez v. Rich Voss Trucking, Inc., 240 Cal. App. 4th 1052 (2015) (denial of class certification reversed in absence of trial court’s explanation for same).

Employer and Employee Were Each Prevailing Parties on Different Claims

Sharif v. Mehusa, Inc., 241 Cal. App. 4th 185 (2015)

Mahta Sharif sued her former employer (Mehusa) for unpaid overtime, unpaid wages, and violation of California’s Equal Pay Act (EPA). Although Sharif prevailed on her EPA claim, Mehusa prevailed on the overtime and wage claims. Sharif sought reimbursement of her attorney’s fees pursuant to Labor Code section 1197.5(g), and Mehusa sought reimbursement of its attorney’s fees pursuant to Labor Code section 218.5. The trial court offset the attorney’s fees awards for a net award to Sharif in the amount of $3,709. The court of appeal affirmed, holding that when there are two fee-shifting statutes for separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other.

Court Affirms Dismissal of PAGA Claims for Inadequate Notice but Orders Certification of Class Action

Alcantar v. Hobart Serv., 800 F.3d 1047 (9th Cir. 2015)

Joséluis Alcantar filed this action against his employer to represent a putative class of service technicians for the time spent commuting in the employer’s service vehicles from their homes to their jobsites and then back again. Alcantar also alleged failure to provide the technicians with meal and rest breaks. The district court denied class certification and granted partial summary judgment to Hobart. The United States Court of Appeals for the Ninth Circuit reversed in part, holding that the district court improperly reached the merits of Alcantar’s claims in denying class certification, rather than focusing on whether the questions presented in connection with the commute-time claims were common to the class. However, the court affirmed denial of certification of the meal-and-rest break class claims, holding that the putative class failed under Fed. R. Civ. P. 23(b)(3) because questions as to why the service technicians missed their meal and rest breaks varied.

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The court reversed the partial summary judgment that had been entered in favor of Hobart on the commute-time claims on the ground that Alcantar had raised a genuine dispute of material fact as to whether the technicians are as a practical matter required to commute in the employer’s vehicles. Finally, the court affirmed dismissal of the Private Attorneys General Act (PAGA) claims on the ground that Alcantar’s written notice of his PAGA claim did not contain sufficient facts to comply with the statute’s notice requirement. See also Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425 (9th Cir. 2015) (Ninth Circuit follows Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348 (2014), barring waiver of PAGA claims); Miranda v. Anderson Enters., Inc., 241 Cal. App. 4th 196 (2015) (same).

Firefighters Are Not Entitled to Overtime for Time Spent Taking Gear to Temporary Duty Stations

Balestrieri v. Menlo Park Fire Prot. Dist., 800 F.3d 1094 (9th Cir. 2015)

Firefighters and emergency medical personnel sued the Menlo Park Fire Protection District, claiming that two of the district’s policies violate the Fair Labor Standards Act (FLSA). In their first cause of action, the employees claimed they were entitled to overtime for taking their gear to temporary duty stations. In the second, they claimed the district’s system of paying them cash in lieu of unused leave time violates the FLSA. The district court granted summary judgment in favor of the district, and the United States Court of Appeals for the Ninth Circuit affirmed, holding that under Integrity Staffing Solutions, Inc. v. Busk, 135 S. Ct. 513 (2014), loading up "turnout gear" to report to a shift at a visiting station was not "integral and indispensable" to their firefighting activity. The court affirmed dismissal of the challenge to the annual sick leave buyback on the ground that it is not an attendance bonus and should not be counted in the regular rate.

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