California Appellate Lawyer Blog

California Labor Code section 515, subdivision (a), sets forth the requirements for determining whether an employee may be classified as exempt from pay requirements including those with respect to overtime: (1) the primary job duties are executive, administrative or professional), (2) the work involves the regular exercise of discretion and independent duties, and (3) the "salary" must exceed twice the minimum wage for full-time employment. More particulars are found in Industrial Welfare Commission (IWC) Wage Order 4.

The issue in the recent case of Negri v. Koning & Associates (published opinion filed 5/16/13) H037804 was whether a payment schedule for plaintiff insurance-claims-adjuster, that allowed him to determine his scheduling/number of hours and compensated him at the fixed rate of $29 per hour regardless of the number of weekly hours (whether below, equal to, or in excess of 40) but did not guarantee a minimum amount of pay per pay-period, qualified as a "salary" within the meaning of requirement (3) above.

The trial court (Santa Clara Superior Court), while factually finding that plaintiff had worked "20 hours of overtime a week," had concluded he was an exempt employee, thus not entitled to overtime pay for those hours exceeding 40 per week. The Court of Appeal, Sixth Appellate District reversed.

The appellate court looked to the "federal salary-basis test" found in the Fair Labor Standards Act as the IWC has construed this test to apply and state requirements need to be at least as protective to the employee as federal standards. Federal law requires that the employee would have to have been paid a predetermined amount that is not subject to reduction based upon the number of hours worked in order to meet the salary basis test. So even though insurance adjuster duties qualify for the administrative exemption, the employee must have received compensation on a "salary" basis as specified.

Continue reading "Can pay, based on hours worked with no guaranteed minimum, be deemed a "salary," making employee exempt from overtime? " »

The situation: wage and hour class action brought by automotive technicians against their employer who compensates repair work employees on a piece-rate basis; while total compensation would not drop below the "minimum wage floor" (total compensation for total number of hours), employees were not otherwise compensated anything for those specific hours they were required to be at the workplace either performing non-repair tasks or simply waiting for customers to show up. In Gonzalez v. Downtown LA Motors LP (filed 3/6/13; pub. order 4/2/13) B235292, the Los Angeles County trial court had found the above method of compensation violated the minimum wage law in that the law does not allow an employer to average total compensation over total hours worked in a pay period. Defendant-employer appealed. The Court of Appeal, Second Appellate District, Division Two, affirmed.

At issue in this case were California's minimum wage requirements promulgated by the Industrial Welfare Commission (IWC). Wage Order No. 4 requires an employer to pay to each employee for each pay period not less than the applicable minimum wage for all hours worked, defined as the time during which the employee is subject to the control of the employer. Plaintiffs' contention, adopted by both the trial and appellate court, was that the plain meaning of "all hours worked" is "each and every hour" worked.

Defendant argued that there should be no distinction between waiting and productive time when employees are paid as here on a piece-rate basis; that payment to employee for the productive time for which employee receives a premium flag rate for expected hours to complete task (but does not necessarily require that much time if employee is efficient) is blended with uncompensated hours during a pay period to determine satisfaction of minimum wage requirements. If there is then a shortfall, argues defendant, to be in compliance with the law, it need only supplement the technician's piece-rate wages to meet the minimum wage floor for the entire pay period.

While not specifically a case on piece-rate compensation, Armenta v. Osmose Inc. (2005) 135 Cal.App.4th 314 was found to be persuasive on this issue. The plaintiffs there were employed by a company that maintained utility poles in remote areas. Employees were paid only for "productive" time, time actually spent doing pole maintenance work. So-called "non-productive" time (travel and vehicle maintenance time, and time attending safety meetings) was not included. The employees there made the same "each and every hour" argument concerning minimum wage and prevailed.

Continue reading "Does California law require employers to compensate piece-rate employees a separate hourly minimum wage for non-piece-rate-producing required hours?" »

California Government Code section 12945, subdivision (a) (1), requires an employer to permit a pregnancy-disabled employee to take leave "not to exceed four months and thereafter return to work . . . ." In Sanchez v. Swissport, Inc. (filed February 21, 2013) 2013 DJDAR 2400, employer Swissport claimed that the specificity of this language found in the Pregnancy Disability Leave Law (PDLL) necessarily defines the limits of an employer's obligation. The trial court (Los Angeles Superior Court) agreed, dismissing plaintiff Sanchez's action for wrongful termination upon sustaining defendant's demurrer without leave. The Court of Appeal, Second Appellate District, Division Four, reversed.

Sanchez initiated her leave request nearly eight months before her due date upon her diagnosis of a high risk pregnancy that required bed rest. While she was still disabled, and still three months shy of her due date, she was terminated by Swissport from her position of cleaning agent. She claimed she would have been willing to return to work soon after the birth of her child with need of only minimal accommodations. She further alleged that she was fired because of her pregnancy-related disability and/or her requests for accommodations, and that Swissport failed to engage her in a timely, good faith interactive process.

The appellate court disagreed with defendant and the trial court, finding that the PDLL merely defines the employer's obligations under that statute; the PDLL provisions are in addition to those provided elsewhere in the FEHA law, and may not be construed "in any way to diminish" coverage of a pregnancy-related medical condition "under any other provision" of FEHA. (Quoted portion comes from subdivision (b) of section 12945.) Thus contrary to defendant's contention, the PDLL is not the employee's sole remedy; it is augmented by broader provisions of FEHA that require an employer to provide reasonable accommodations for an employee's known disability, unless the employer shows that such accommodation would cause it undue hardship.

A potentially reasonable accommodation here would have been to give plaintiff an extended leave time. The findings of the trial court do not preclude this: the finding that at the time of her termination plaintiff was unable to perform her job is merely a finding of disability. The trial court did not find that she was unable to perform her essential duties even with reasonable accommodations.

Continue reading "May an employer fire a pregnancy-disabled employee after she has exhausted maximum leave provided by Pregnancy Disability Leave Law?" »

This question, along with several other related questions, is answered by the California Supreme Court in Harris v. City of Santa Monica (filed February 7, 2013) S181004. The state high court answers that, while there is no causation proven by the fired plaintiff in the above instance thus no awardable damages or reinstatement, plaintiff may nonetheless be awarded declaratory or injunctive relief and attorney fees and costs. Allow me to summarize the issues the high court had to resolve in getting to this conclusion, and the impact that may have on employment litigation.

Plaintiff was a probationary bus driver employed by City. She suffered two preventable accidents and was twice late to work without notification during her 7-month tenure. Six days before her termination, she had a chance encounter with her supervisor who noticed her shirt was not tucked in. When advised to tuck in her shirt, she confided she was pregnant. The same day she submitted her doctor's note listing limiting restrictions under which she could continue to work, City issued a list of probationary employees who failed to meet employment standards thus were terminated; she was on the list based upon her previously stated deficiencies. Plaintiff sued.

At trial, the court refused City's request for a jury instruction on its mixed-motive defense (BAJI No. 12.26): that where there was a non-discriminatory motive as well as a discriminatory one, if the legitimate one standing alone would have induced the decision to terminate, defendant is not liable. Instead the jury was instructed in CACI No. 2500 that if her pregnancy was proved by plaintiff to have been a motivating factor in her discharge, causation was established. The jury awarded her approximately $178,000 in damages; the court awarded attorney fees and costs of about $400,000. The Court of Appeal found that, while there was substantial evidence that plaintiff had been fired because of discrimination, the trial court prejudicially erred in failing to give the "mixed motive" instruction. The Supreme Court granted review on the question of the correctness of that instruction.

The Supreme Court went through an extensive discussion of the purpose of California's FEHA provisions and analyses of how both state and Federal courts viewed causation in the various types of discrimination cases. It concluded that to ensure that liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed termination, plaintiff is required to show discrimination was a substantial motivating factor, not just, a motivating factor, thus disapproving of CACI No. 2500. Even where a substantial motivating factor is shown to be discriminatory, the employer still has the opportunity to show that it would have made the decision in any event--that the legitimate reason, standing alone, would have induced the same decision. Does a same-decision showing provide a complete defense to liability when plaintiff has shown that the termination was motivated at least in part by discrimination?

Continue reading "Where unlawful discrimination is a substantial factor motivating employee's termination, but employer proves it would have made decision for other valid reasons, what are employee's remedies?" »

In Lui v. City and County of San Francisco (filed December 11, 2012) 2012 DJDAR 16496, plaintiff, a sworn police officer with defendant since 1981, suffered a heart attack and took 11 months of disability leave. He then returned to work to take a 1-year temporary modified duty (TMD) position in the police records room. At that point, he was advised that his permanent medical limitations stated by his physician could not be accommodated in the permanent sworn-officer administrative position he sought because strenuous duties beyond his capability were essential: the department may need to deploy officers in those positions in the event of emergencies. Plaintiff was offered unsworn positions, but plaintiff demanded a sworn officer position rejecting the unsworn ones. After retiring, he sued defendant employer on claims including disability discrimination and failure to accommodate under the Fair Employment and Housing Act (FEHA).

At court trial, the judge ruled in favor of defendant finding that under FEHA the essential functions of the sworn adminstrative officer positions sought included making forcible arrests and chasing fleeing suspects; that defendant had a legitimate need to deploy such officers in the event of emergencies. Because plaintiff's physician required that he "avoid physically strenuous work and minimize physical contact" indefinitely in his return to full duty, defendant reasonably could not accommodate plaintiff in a sworn position.

The Court of Appeal, First Appellate District, Division Five, affirmed. In order for plaintiff to prevail on his claim he bore the burden of proving he was able to perform the essential duties of the positions he sought, with or without reasonable accommodation. While plaintiff pointed to the lack of any studies supporting defendant's claim that it needed these sworn administrative officers to be ready for emergency street work, the reviewing court felt that such proof was not necessary; it declined to "second-guess" the police department's judgment in this regard. And defendant did present some evidence that the administrative officers periodically have been expected to perform street officer duties in a pinch.

Continue reading "Police officer disabled from performing strenuous street duties not eligible for administrative job accommodation due to that job's essential strenuous duties. " »

Plaintiff Lorena Alamos was terminated from her position of collection clerk with defendant Practice Management Information Corporation. She took 8 weeks off from her job for pregnancy/maternity leave. She came to the workplace about one week prior to her agreed date of return to have lunch with a friend. While there, she got into an argument with the person who was temporarily replacing her. She was terminated the day she returned to work. The initial reason stated for her termination by her supervisor, Cuevas, was Cuevas discovered during her leave that she had gotten behind on some accounts. Cuevas later testified this job performance issue alone was not serious enough to justify termination; that her visit to the office was an additional reason. Both she and the executives who eventually approved of the termination claimed her pregnancy or maternity leave was not in any way a reason for her termination.

At trial of the lawsuit brought by plaintiff, the jury was instructed that an element of plaintiff's proof was to prove her maternity leave was "a motivation reason" for her discharge. Defendant requested a "mixed motive" instruction to the effect that the employer is not liable if it proved that, among the reasons for terminating plaintiff, there was a legitimate reason, standing alone, that would have caused the same decision. The trial judge refused the defense's requested instruction. The jury proceeded to render a general verdict in favor of plaintiff and awarded her $10,000. The trial judge additionally awarded Fair Employment and Housing Act (FEHA) prevailing plaintiff attorney's fees in the amount of $50,858.

Defendant appealed. In Alamos v. Practice Management Information Corp. (filed 9/24/12, pub. ordered 10/18/12) 2012 DJDAR 14480, the Court of Appeal, Second Appellate District, Division Seven, affirmed.

Defendant's first assertion on appeal was that the trial court prejudicially erred in failing to properly instruct the jury on the standard of causation in a FEHA claim. It criticizes the CACI instructions on "a motivating reason," saying that instead the BAJI instructions concerning motives would properly set forth a defendant's mixed motive defense that the same termination decision would have been made in the absence of the discriminatory motive. The appellate court noted that this issue is currently pending before the California Supreme Court in Harris v. City of Santa Monica. However, the high court's dicta in other cases strongly suggests that "a motivating reason" is the proper causation standard. As the court stated in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 358: "[T]he ultimate issue is simply whether the employer acted with a motive to discriminate illegally."

Continue reading ""A motivating reason" properly instructs jurors on the basis to find job termination was discriminatory; "invited error" precludes attack on attorney's fee award. " »

In Gorlach v. The Sports Club Company. B233672 (filed October 16, 2012), the Court of Appeal, Second Appellate District, Division Four, affirmed the trial court's denying defendant's motion to compel arbitration. While the defendant conceded that plaintiff never signed a written contract to arbitrate, defendant claimed equitable estoppel or implied-in-fact agreement.

Plaintiff Susan Gorlach resigned as defendant's human resource director in August 2010. Prior to 2010, defendant had no arbitration agreement with its employees. It then revised its employee handbook to contain such an agreement and tasked plaintiff to get all employees to sign. Through July 2010, not all employees had signed, prompting plaintiff to write company executives to consider what to do about employees who failed to sign. She led executives to believe she had signed, when in fact she had not. She resigned August 6, 2010, and later sued defendant for constructive termination including a cause of action claiming paramour sexual harassment.

Defendant Sports Club moved to compel arbitration contending plaintiff assented to it by her continued employment, yet acknowledging that she had not executed the arbitration agreement. The trial court found that, while plaintiff "intentionally misled" defendant to believe she was "on board" with the new agreement, she never planned on signing it, thus there was no basis to find that an agreement to arbitrate existed between the parties.

Continue reading "Former human resource director's deceiving employer she had executed arbitration agreement neither implies agreement nor estops her from denying. " »

Dutra v. Mercy Medical Center Mt. Shasta (filed September 26, 2012) 2012 DJDAR 13447, plaintiff Dutra claimed defendant wrongfully terminated her employment in violation of public policy codified in California Labor Code section 132a, which generally prohibits discharge of an employee for filing a workers'compensation claim. After jury selection, the trial court granted defendant's motion to dismiss the claim because the Workers' Compensation Appeal Board (WCAB) had exclusive jurisdiction to adjudicate the claim; plaintiff declined the court's offer allowing amendment of her complaint. The Court of Appeal, Third Appellate District, affirmed.

The appellate court rejected plaintiff's legal argument that the California Supreme Court, in City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, provided that a plaintiff could pursue common law remedies as an alternative to the Labor Code's vesting of jurisdiction in the WCAB. As the court put it, "City of Moorpark does not go as far as plaintiff suggests. " While the high court did say a plaintiff is not precluded from pursuing remedies under FEHA statutory provisions and common law wrongful termination, the other half of the analysis in that case was to decide whether a violation of FEHA could serve as a basis for a claim of wrongful termination in violation of public policy. On this point, the Supreme Court wrote that when a statute stating a public policy also includes certain substantive limitations in scope and remedy, these limitations also circumscribe the common law cause of action.

Here, Section 132a has the limitation of establishing a specific procedure and forum for addressing a violation with limited remedies. A claim in common law tort bootstrapping a violation of this statute would give a broader remedy than the statute allows. To the extent that this plaintiff claims the wrong committed against her fell outside of the "compensation bargain," she could have alleged different causes of actions which she chose not to.

I see three important lessons that are suggested by this opinion. First, if you seek a common law remedy, do not try to infuse it with a statutory theory of recovery that is limited in scope, and may end up getting the cause of action dismissed. Second, never give short shrift to a trial court's invitation to amend your complaint. And third, more generally, if you wish to quote from a case opinion, make sure you have the proper context.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients, clients or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this blog contains general information and may not reflect current legal developments, verdicts or settlements. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this blog.

In Touchstone Television Productions v. Superior Court (B241137, filed August 16, 2012), petitioner Touchstone had an agreement with actress Nicollette Sheridan for the first season of the television series Desperate Housewives in which Touchstone had the exclusive option to renew Sheridan's services on an annual basis for an additional six seasons. During Season 5, Touchstone informed Sheridan it would not renew her contract for Season 6, while paying her for the entirety of Season 5. Sheridan sued for wrongful termination in violation of public policy, alleging that she was "fired" because she had complained about a battery committed against her by the series' creator Mark Cherry. A jury deadlocked on this claim resulting in a mistrial. Touchstone's motion for a directed verdict was denied by the trial court, and Touchstone petitioned the Court of Appeal for extraordinary relief.

The Court of Appeal, Second Appellate District, Division Four, stayed the pending retrial, issue an alternative writ of mandate, and, after receiving briefing and oral argument, concluded the trial court erred in denying Touchstone's motion for directed verdict. The court was convinced there was clear legal precedent on the merits: "A cause of action for wrongful termination in violation of public policy does not lie if an employer decides simply not to exercise an option to renew a contract. In that instance, there is no termination of employment, but, instead, an expiration of a fixed term contract. (Daly v. Exxon Corp. (1997) 55 Cal.App.4th 39.)"

The appellate court, however, rather than ordering the entire action dismissed, sent the matter to the trial court to allow Sheridan to file an amended complaint alleging a cause of action under California Labor Code section 6310 that Touchstone retaliated against her for complaining about unsafe working conditions (in the form of Cherry's conduct) by deciding not to exercise its option to renew her contract. The court noted that, after this petition was filed, Sheridan had moved the trial court to allow her to amend her complaint to add the Section 6310 claim; the trial court had denied that motion.

Continue reading "Writ granted: producers of Desperate Housewives granted directed verdict on actress's wrongful termination claim." »

In Nelsen v. Legacy Partners Residential, Inc. (filed July 18, 2012) 2012 DJDAR 9956, plaintiff Lorena Nelson worked for defendant as a property manager from 2006 to 2009. Early in her employment she received a 43-page pre-printed form employee handbook that included a small-print arbitration clause at page 42 headed "TEAM MEMBER ACKNOWLEDGMENT AND AGREEMENT." The handbook gave no option to arbitration as a means of resolving employment disputes. She signed the agreement. In 2010, she filed a class-action lawsuit against defendant primarily alleging violations of wage and hour laws.

Defendant moved the trial court to compel plaintiff to arbitrate the matter as an individual party pursuant to the arbitration clause. Plaintiff opposed the motion, claiming the arbitration clause was unconscionable and in violation of California public policy favoring class actions in this type of lawsuit; if arbitration was to be compelled, argued plaintiff, the court would have to allow class arbitration. The trial court granted the motion to compel individual arbitration, and plaintiff appealed.

To start, the California Court of Appeal, First Appellate District, Division One, questioned whether plaintiff is allowed to appeal this order because it is not a final judgment. (Civil Code section 906.) Nelson argued the "death knell" doctrine, citing Franco v. Athens Disposal Co., Inc. (2009) 171 Cal.App.4th 1277: that the order is effectively the death of the class litigation. However, the appellate court pointed to the applicability of this doctrine only where it is unlikely that any individual action will proceed. But the court stops short of deciding this issue of appealability, and instead exercised its discretion to treat the appeal as a petition for writ of mandate.

On the merits, the Court of Appeal determined that plaintiff failed to meet her burden of showing (1) the arbitration clause was both procedurally and substantively unconscionable, and/or (2) that the clause required class-wide arbitration.

Continue reading "Purported appeal of order compelling arbitration treated as extraordinary petition; order compelling individual arbitration affirmed" »

AT&T Mobility LLC v. Concepcion (2011) __ U.S.__ [131 S. Ct 1740] changed the legal landscape concerning class arbitrations. The United States Supreme expressly overturned the California Supreme Court ruling in Discover Bank v. Superior Court (2005) 36 Cal.4th 153, which had held that class action waivers in contracts of adhesion subject to arbitration are unenforceable.

A more recent California Supreme Court opinion--Gentry v. Superior Court (2007) 42 Cal. 4th 443--is not referenced in Concepcion. having lead some to believe Gentry is still viable. (See Kinecta Alternative Financial Solutions, Inc v. Superior Court (Malone) (2012) __Cal.App.4th__.) Gentry determined that, under some circumstances, a class arbitration waiver would impermissibly interfere with an employee's ability to vindicate unwaivable rights concerning overtime laws, and that such a waiver was contrary to public policy. The case to be discussed, Iskanian v. CLS Transportation, LLC (filed June 4, 2012) 2012 DJDAR 7371, finds that the Concepcion decision conclusively invalidates Gentry.

Plaintiff Iskanian worked as a driver for the defendant transportation company. After about 9 months of employment, in December 2004 he signed an arbitration agreement that any and all claims arising out of employment would be submitted to binding arbitration and that class claims could not be asserted. The employment concluded in August 2005, and plaintiff filed a break/wage-and-hour class action lawsuit in August 2006. The order appealed from is the trial court's order compelling arbitration and dismissing class claims. Plaintiff claims he can meet the Gentry test to invalidate the class waiver, or alternatively he should not be compelled to arbitrate. The Court of Appeal, Second Appellate District, Division Two found Gentry inapplicable and affirmed.

Continue reading "Public policy considerations no longer a bar to enforcement of class action waiver in employment arbitration agreement" »

This issue more often arises in the workers' compensation context. In Valero v. Board of Retirement (filed May 1, 2012) 2012 DJDAR 5698, plaintiff contended in a petition for writ of mandate that the Board of Retirement of the Tulare County Employees erroneously denied him disability retirement benefits under California Government Code section 31720. Under subdivision (b), to qualify, ones injurious incapacity arises out of and "in the course of the member's employment" and "contributes substantially to such incapacity." The Tulare Superior Court found against plaintiff and the Court of Appeal, Fifth Appellate District affirmed.

Plaintiff contended his interaction with angry clients as a health and human services office assistant substantially contributed to his permanently disabling panic disorder. As the appellate court describes it, plaintiff "bore the burden to affirmatively show a real and measurable connection between his psychiatric disability and his employment."

Four doctors provided evidence. Plaintiff argued that because three doctors concluded the panic disorder were caused by his experience in the workplace and the other did not opine that there was no causal connection between work and the disorder, the trier of fact was required to rule in his favor.

Not so, said the Court of Appeal. It found that, assuming plaintiff's characterization of the evidence is correct, the medical evidence was not of such character and weight as to leave no room for judicial determination that it was insufficient to support the finding. It did not disturb the trial court's conclusion that the medical evidence was not persuasive based on the undocumented and uncorroborated self-reporting about plaintiff's encounters with clients causing his panic attacks.

The lesson to be learned from this is that you cannot always rely upon uncontested expert evidence to carry the day. After all, an expert's testimony is only as good as the factual input upon which the opinion is derived.

The California Supreme Court gave readers a "two-fer" when it issued its long-awaited opinion in Brinker Restaurant Corp. v. Superior Court (filed April 12, 2012) 2012 DJDAR 4615. As the court noted in its unanimous opinion, it granted review "to consider issues of significance to class actions generally and to meal and rest break class actions in particular."

Concerning class certifications, the court found that trial courts are not required in determining the issue of certification to resolve threshold disputes over the elements of a plaintiff's claims, unless necessarily dispositive of the certification question. Having said that, the state high court went on to address the "hot button" threshold disputes because the parties requested such, and impliedly because of the public interest involved. On the most debated of these disputes, the court ruled that an employer, while required to relieve its employees of all duties during a meal period, need not ensure that no work is done during this time. It also prescribed the proper interpretation concerning requirements of rate at which rest time must be permitted, and the timing of both rest and meal periods.

On the separate issue of off-the-clock certification, the high court saw no substantial evidence pointing to a uniform, companywide proof of employees performing work while clocked out during meal periods; the trial court's ruling that common questions predominate justifying class treatment was not supported by substantial evidence.

The Supreme Court took a more generous view than the Court of Appeal in interpreting the applicable rest time rate provisions. While the lower appellate court saw employees as entitled to 10 minutes of rest for shifts of 3 ½ hours or more and 20 minutes total for 7 ½ hours, the high court ruled the requirements as being 10 minutes for 3 ½ to 6 hour shifts and 20 minutes for 6 to 10 hour shifts. On the matter of timing of rest periods, the high court disagreed with the claim of the employees that a rest period must occur before any meal period.

Continue reading "Brinker: Clearing up some uncertainty in rest & meal period/ wage & hour class actions" »

In Rehmani v. Superior Court (Real Party: Ericsson, Inc)(filed March 29, 2012) 2012 DJDAR 4177, the Court of Appeal, Sixth Appellate District granted Rehmani's petition for writ of mandate and overturned the Santa Clara Country Superior Court's summary adjudication of Rehmani's claims of workplace harassment based on national origin and religion.

At issue in the appeal was Rehmani's allegation against employer Ericsson that it failed to ameliorate the hostile work environment that existed as a result of abuse he suffered from 3 fellow employees. Rehmani is a Muslim of Pakistani origin; the fellow employees are of Indian origin. He claimed that, because of his national origin and religion, the others were rude, dismissive and hostile; they were unwilling to help him with his projects and made comments concerning the hostile relationship between Pakistan and India. Specific comments included one about the need for India to bomb Pakistani terrorists; a comment that if the fellow worker did not assist him, would he "blow me up?" and a prank birthday party for Rehmani while he was away from the office "celebrating 9/11 and planning terrorist attacks."

To prove entitlement to a summary adjudication of dismissal of these harassment claims, Ericsson needed to establish that Rehmani could not show not only a hostile work environment, but also its failure as his employer to respond with appropriate corrective action. Ericcson asserted in the trial court that the incidents were isolated and not caused by Rehmani's religion or national origin, and not so severe or pervasive as to constitute a hostile environment. Concerning corrective actions, Ericsson set forth evidence that none of the fellow employees were managers, and that Rehmani's complaints to his superiors never asserted (1) "harassment" or "discrimination", and (2) he never said his alleged mistreatment was due to his being Pakistani of Muslim. In any event, Ericsson conducted an investigation and concluded there was no discrimination or harassment, and warned employees against conduct like the 9-11 prank.

Continue reading "Summary adjudication of employment harassment claims reversed because aggregate of evidence may factually support a claim" »

In the morass of paperwork accompanying the start of employment, an employer may ask the employee to sign multiple documents discussing arbitration: an employee handbook, an employer alternative resolution policy statement, and/or the contract of employment may be among the many documents. Which executed document concerning arbitration controls if their content differs?

This question is presented in Grey v. American Management Services (filed March 28, 2012) 2012 DJDAR 4075. When plaintiff applied for employment, defendant provided him with an application packet that contained an Issue Resolution Agreement (IRA) which he signed. The IRA required arbitration of any claim "arising out of or [in] relation to [the] application or candidacy of employment." After he accepted employment, plaintiff signed an employment contract that required arbitration of "a dispute arising out of the alleged breach of any provision of this Agreement." Plaintiff was terminated from his employment and filed a lawsuit primarily alleging employment discrimination and wrongful termination (no claim of "breach of contract"). Defendant successfully moved to compel arbitration, and the arbitrator found in its favor.

On appeal, the Court of Appeal, Second Appellate District, Division Four, reversed, finding that Grey was not required to submit his claims to arbitration under the terms of the employment contract.

The appellate court delineated the critical issue as whether the parties intended their writing (the employment agreement) to serve as the exclusive embodiment of their agreement. The employment agreement included an integration clause providing it was "the entire agreement of the parties and supersedes all prior and contemporaneous discussions and understandings."

Continue reading "Arbitration clause in employment contract superseded that in earlier agreement and made wrongful termination claim not subject to arbitration " »