California Employment Law Update : Labor and Employment Lawyers & Attorneys : Proskauer Rose Law Firm : Wage & Hour Laws, Disability, Workplace Safety

Westside Concrete Co. v. Dep't of Indus. Relations, 123 Cal. App. 4th 1317 (2004)

Westside Concrete Company sought a judicial declaration that the Division of Labor Standards Enforcement's opinion letters interpreting Wage Order 1 regarding off-duty meal periods were "administrative regulations" subject to the rulemaking provisions of the Administrative Procedure Act (APA). In response, the DLSE successfully demurred to the complaint on the ground that the opinion letters are not subject to the procedural requirements of the APA. However, the Court of Appeal agreed with Westside Concrete that there is a factual dispute as to whether the letters in question were intended by the agency to be of general application to the statewide ready-mix concrete industry and, therefore, reversed the dismissal on demurrer entered by the trial court. Cf. Clark v. United Emergency Animal Clinic, 390 F.3d 1124 (9th Cir. 2004) (veterinarians are exempt employees under the FLSA).
 

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Lonicki v. Sutter Health Central, 124 Cal. App. 4th 1139 (2004)

Antonina Lonicki, a certified technician of sterile processing, was fired when she failed to return to her job at Sutter, following a leave of absence. During the leave, Lonicki continued to perform the same job duties at Kaiser in the same geographic area. In her lawsuit, Lonicki alleged Sutter had violated the California Family Rights Act (CFRA) by denying her request for a medical leave based upon her belief that her shift at Sutter was "too stressful." The Court of Appeal affirmed summary judgment in favor of Sutter on the ground that Lonicki could not have been suffering from a "serious health condition" because throughout the relevant time period she was successfully performing the functions of an identical job at Kaiser. The Court rejected Lonicki's assertion that the test for whether an employee cannot perform the functions of the position is employer (not job) specific. Additionally, the Court concluded that the note Lonicki had presented to Sutter (signed by a family nurse practitioner) that said, "Plan return to work 8/27/99 – Medical reasons" was "manifestly insufficient" to establish a qualifying medical condition under the CFRA.
 

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Pardi v. Kaiser Found. Hosp., 389 F.3d 840 (9th Cir. 2004)

Stephan Pardi, a licensed respiratory care practitioner, sued Kaiser for violations of the Americans with Disabilities Act (ADA), intentional infliction of emotional distress, intentional interference with prospective economic advantage and breach of contract. In January 2000, Kaiser, Pardi and Pardi's union entered into a Settlement Agreement and General Release to resolve an earlier series of grievances and EEOC claims Pardi had filed. By the terms of the agreement, Pardi resigned his employment (in place of the earlier termination of his employment for multiple acts of alleged misconduct) and waived all of his claims, and Kaiser paid him $130,000. Six months after Kaiser had reported Pardi's termination to the Respiratory Care Board (RCB) and two weeks after the settlement, a senior investigator with the Department of Consumer Affairs contacted Kaiser's Human Resources Department regarding allegations that Pardi had falsified medical records and acted unprofessionally. In response to the investigator's subpoena, Kaiser released Pardi's files, which had not yet been "revised" to show he had resigned and had not been terminated. Additionally, Kaiser allegedly failed to provide files to the investigator that could have supported Pardi's explanation of the alleged misconduct. As a result of the investigation, the RCB temporarily suspended Pardi's certification to practice and later required him to undergo a psychiatric evaluation before renewing his certificate. Kaiser also allegedly failed to respond to requests for information about Pardi that came from one of Pardi's prospective employers. The Ninth Circuit reversed the trial court's dismissal on summary judgment of Pardi's breach of contract claim on the ground that Kaiser apparently had failed to take "prompt steps to vacate the termination and enter Pardi's resignation" before the investigator examined the file. The Court also reversed the dismissal of Pardi's ADA claim on the ground that Kaiser may have discriminated and retaliated against Pardi on the basis of his alleged disability (depression) in its interactions with the investigator. The Court rejected Kaiser's argument that its actions in connection with the investigation were protected by the state litigation privilege. The Court affirmed dismissal of the emotional distress claim on the ground that Pardi had failed to establish sufficiently outrageous conduct on Kaiser's part and of the interference claim on the ground that it was not sufficiently probable that Pardi would have been hired by the prospective employer but for Kaiser's alleged refusal to verify Pardi's employment.

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Toscano v. Greene Music, 124 Cal. App. 4th 685 (2004)

Joseph Toscano sued Greene Music on a theory of promissory estoppel after Toscano quit his job as a general manager of Fields Pianos to take a sales management position with Greene. Toscano resigned from Fields in reliance upon Greene's promise of at-will employment. Two weeks before Toscano was scheduled to begin his new job, Greene withdrew the offer. Following a bench trial, the judge awarded Toscano $536,833 in lost-wage damages, including $417,772 in future lost earnings and benefits, which were calculated as the present value of the difference between what Toscano would have earned at Fields and what he would have earned at Greene through his expected retirement date in 2017. The Court of Appeal reversed the judgment insofar as the calculation of damages was concerned on the ground that the damages awarded by the trial court were speculative. The Court held that Toscano's future wage loss should have been measured by the amount of wages he would have expected to earn from Fields but for Greene's unfulfilled promise; the Court remanded the matter for a new trial on the issue of damages only
 

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Hawkins v. Pacific Coast Bldg. Products, Inc., 124 Cal. App. 4th 1497 (2004)

In his racial harassment and discrimination lawsuit against his former employer, Leroy Hawkins erroneously identified the employer (Pacific Coast) as "Basalite Corporation," a variation of its fictitious business name, "Basalite." Pacific Coast moved to quash service of the complaint on the ground that Hawkins had failed properly to designate the company as a defendant. The trial court granted Pacific Coast's motion to quash and then granted Hawkins's motion to amend his complaint to designate Pacific Coast as a defendant. Pacific Coast then successfully demurred to the amended complaint on the ground that Hawkins had failed to timely file his claims against Pacific Coast. The Court of Appeal reversed the trial court's dismissal of Hawkins's discrimination and harassment claims on the ground that those claims related back to the timely filing of the original claims against "Basalite Corporation." However, the Court affirmed dismissal of Hawkins's contract claims on the ground that they were already time barred when he filed his original complaint.

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Lujan v. Minagar, 124 Cal. App. 4th 1040 (2004)

Shala Minagar, the owner of a beauty salon in Malibu, fired two employees (including one who had made a complaint to Cal-OSHA) the day the agency inspected the salon and cited Minagar for several minor workplace safety violations. The Labor Commissioner cited Minagar for firing one of the employees (Noelle Dianella), and the Department of Industrial Relations ordered her to reinstate the employee with back pay, which Minagar refused to do. At the ensuing trial, it was established that although Dianella was not the employee who had complained to Cal-OSHA, Minagar had nonetheless terminated her "because she did too many mistakes in my shop and I was afraid she will be next one to report me." The Court of Appeal reversed the trial court's dismissal of the action after concluding that Labor Code § 6310 prohibits retaliation not only against an employee who has filed a complaint with Cal-OSHA, but also one who the employer fears might file a complaint. The Court also found substantial evidence that Dianella was an employee and not an independent contractor. Cf. Elsner v. Uveges, 34 Cal. 4th 915 (2004) (amendments to Cal-OSHA establish standards and duties of care in third-party negligence actions, but are not retroactively applicable).

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Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (9th Cir. 2004)

Darlene Jespersen, a former bartender at Harrah's, filed this Title VII action, alleging the casino had discriminated against her on the basis of her sex when she was fired for refusing to comply with the casino's appearance standards policy requiring all female beverage servers to wear makeup. (Harrah's "Personal Best" appearance standards also required that male employees maintain short haircuts and neatly trimmed fingernails.) The district court granted summary judgment to the employer, and the Ninth Circuit affirmed that judgment after concluding that "grooming and appearance standards that apply differently to women and men do not constitute discrimination on the basis of sex." The Court further determined that Jespersen had failed to provide evidence that Harrah's "Personal Best" appearance standards policy imposed unequal burdens on male and female employees.

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City of San Diego v. Roe, 543 U.S. 77 125 S. Ct. 521 (2004) (per curiam)

While working as a San Diego police officer, "John Roe" videotaped himself stripping off a generic police officer's uniform and engaging in acts of masturbation. Roe sold the videos on the adults-only section of eBay – under the username "Code3stud@aol.com." After one of Roe's supervisors discovered the videos online and recognized Roe, Roe was fired. Roe sued under 42 U.S.C. § 1983, alleging that his off-duty, non-work-related activities were protected by the First Amendment. The district court dismissed Roe's claim after concluding that the videos did not address a matter of "public concern" and, therefore, were not protected by the First Amendment. The Ninth Circuit disagreed and reversed the judgment, holding that the district court erred by not balancing the San Diego Police Department's interest in promoting "the efficiency of the public services it performs through its employees" against Roe's free-speech interests. A unanimous United States Supreme Court reversed the judgment of the Ninth Circuit, holding that it had "no difficulty in concluding that Roe's expression does not qualify as a matter of public concern under any view of the public concern test."

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Toshiba Am. Elec. Components, Inc. v. Superior Court, 124 Cal. App. 4th 762 (2004)

Lexar Media, Inc. sued Toshiba for misappropriation of trade secrets, breach of fiduciary duty, and unfair competition. In response to Lexar's demand for production of documents, including email messages, Toshiba produced more than 20,000 pages. Although additional responsive material was stored on Toshiba's computer backup tapes, Toshiba's electronic discovery specialist estimated that it would cost between $1.5 and $1.9 million to search, process, restore and produce the responsive items from the tapes. The trial court granted Lexar's motion to compel production of all non-privileged emails within 60 days and did not order Lexar to bear any of the costs of production. Apparently, neither party referred the trial court to the pertinent California statute (Code of Civil Procedure § 2031(g)(1)), but Toshiba did assert in its writ petition to the Court of Appeal that the statute is an automatic costshifting provision (from the party producing the items to the party demanding them) that should apply in the instant case. The Court issued a peremptory writ of mandate directing the trial court to vacate its order granting Lexar's motion to compel and to determine whether and to what extent the cost-shifting provisions of Section 2031(g)(1) apply to Lexar's discovery demands.
 

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