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

Doe 1 v. Superior Court (Roman Catholic Archbishop of Los Angeles), 132 Cal. App. 4th 1160 (2005)

Petitioners in this case, 26 Roman Catholic priests, filed this action to prevent the Los Angeles Archdiocese from publicly disclosing written summaries that were made of the personnel records of more than 100 priests who were accused of sexually molesting minors. The summaries were prepared for purposes of settling ongoing litigation between the Archdiocese and the alleged molestation victims. The Court of Appeal granted the priests' petition for a writ of mandate and ordered the trial court to grant the priests' motion for protective order, prohibiting the public disclosure of the summaries on the ground that disclosure would violate the applicable mediation confidentiality statutes. The Court rejected the argument that barring release of the summaries was a prior restraint of free speech.
 

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County of San Luis Obispo v. WCAB, 133 Cal. App. 4th 641 (2005)

While working as a mental health therapist for the County of San Luis Obispo, Art Martinez sustained injuries to his neck, spine, wrist and shoulder when he was assaulted by a violent patient. When Martinez returned to work three years later, he was placed in a different job at a different facility serving emotionally disturbed teenagers. Before his return, Martinez's surgeon opined that Martinez's injury did not preclude him from physically restraining combative patients. Several months later, after he had returned to work, Martinez selected a different doctor to serve as a qualified medical examiner who determined that "if [Martinez's] job involves the potential for physical altercation, then he should not be doing that job." In light of the new work restrictions from Martinez's new physicians, the County advised Martinez not to report to work until further notice. In response, Martinez filed a petition for penalty under California Labor Code § 132a, alleging that he had been discriminated against in retaliation for having received a permanent disability award. The workers' compensation judge and the WCAB agreed and ordered Martinez reinstated and further ordered the County to pay a $10,000 penalty. The Court of Appeal reversed the WCAB, holding that there was no evidence that Martinez proved he had been singled out for disadvantageous treatment or that the County did not have a reasonable belief at the time of the termination that Martinez would endanger himself or others given his disability. Cf. Jackson v. WCAB, 133 Cal. App. 4th 965 (2005) (WCAB erred in determining that correctional officer's fatal heart attack was unrelated to his employment).

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Farmers Bros. Coffee v. WCAB, 133 Cal. App. 4th 533, 35 Cal. Rptr. 3d 23 (2005)

When Rafael Ruiz, an illegal alien, sought workers' compensation benefits from his employer, Farmers Brothers Coffee, the company asserted that the California law under which Ruiz could be considered an employee was preempted by the federal Immigration Reform and Control Act of 1986 (IRCA). The WCAB rejected the employer's contentions, and the company filed a petition for writ of review with the Court of Appeal. The appellate court affirmed the WCAB, holding that there is no preemption language in IRCA expressly affecting state workers' compensation laws. The Court further rejected Farmers Brothers' contention that Ruiz's use of a fraudulent Social Security card and a fraudulent green card to obtain employment disqualified him from obtaining benefits since Ruiz had never been convicted of violating the law in connection with those fraudulent documents.

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First Aid Services of San Diego, Inc. v. California Employment Dev. Dep't, 133 Cal. App. 4th 1470 (2005)

First Aid Services of San Diego, Inc. challenged the California Employment Development Department's decision to grant unemployment benefits to Tiffany Whittaker, an emergency medical technician employed by an ambulance service, who supplemented her income by accepting assignments from First Aid, a company that sends EMT's to operate first aid stations at public events. First Aid objected to Whittaker's unemployment claim on the ground that she was not an employee and, therefore, was ineligible for unemployment benefits. After both the EDD and an administrative law judge determined that Whittaker had been an employee of First Aid, the company filed a petition for a writ of administrative mandamus in the superior court. The EDD obtained dismissal of the petition on the ground that First Aid was attempting to restrain the collection of a tax. The Court of Appeal affirmed dismissal of First Aid's petition, holding that the constitution requires a company to "pay first, litigate later."

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IBP, Inc. v. Alvarez, 546 U.S. 21, 126 S. Ct. 514 (2005)

Non-exempt meat packing employees of IBP, Inc. (the world's largest producer of fresh beef, pork and related products) filed a class action lawsuit alleging violations of the federal Fair Labor Standards Act (FLSA). The Ninth Circuit ruled in favor of the employees who alleged that they should have been paid for the time spent walking between the changing area where they "donned and doffed" their protective gear and the production area. In another case, the First Circuit held that similarly situated employees were not entitled to be compensated for the time spent walking from one area to the other. The United States Supreme Court affirmed the Ninth Circuit's judgment and reversed that of the First Circuit, holding that "during a continuous workday, any walking time that occurs after the beginning of the employee's first principal activity and before the end of the employee's last principal activity is… covered by the FLSA." However, the Court held that the time employees spent waiting to don the first piece of protective gear is a "preliminary" activity and, therefore, is not compensable under the law.

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Raghavan v. Boeing Co., 133 Cal. App. 4th 1120 (2005)

Krishnan Raghavan sued Boeing for defamation, among other things, based upon a written reprimand that Raghavan received in which he was accused of (1) failing to disclose all relevant information concerning a business trip he had made to Russia in April 2001 and (2) providing false or misleading information to Boeing executives during a presentation he made to them in May 2001. The Court of Appeal affirmed summary adjudication of the defamation claim in Boeing's favor on the ground that the statements made about Raghavan in the written reprimand were true. However, the Court reversed the judgment that Boeing received in its favor following a trial on a separate claim for wrongful termination in violation of public policy since the trial judge had erroneously instructed the jury that the facts contained in the written reprimand "had been established" as true. The summary judgment statute provides that "neither a party, nor a witness, nor the court shall comment upon the grant or denial of a motion for summary adjudication to a jury."

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Cicairos v. Summit Logistics, Inc., 133 Cal. App. 4th 949 (2005)

In this case, five truck drivers/members of the Teamsters Union, sued their former employer for violations of the Labor Code and the Industrial Welfare Commission orders relating to meal periods, rest breaks and itemized wage statements. The trial court dismissed the action based on the motor carrier exemption. The Court of Appeal reversed the trial court, holding that the motor carrier exemption only applies to overtime provisions and not to the claims asserted in this case. The Court further held that the plaintiffs' collective bargaining agreement did not bar them from asserting claims in state court relating to meal periods and rest breaks. Further, the Court concluded that the employer failed to prove that it gave plaintiffs adequately itemized wage statements or required meal and rest breaks – even though plaintiffs "were constantly on the road."

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Gattuso v. Harte-Hanks Shoppers, Inc., 35 Cal. Rptr. 3d 260 (2005)

Frank Gattuso and Ernest Sigala brought a class action on behalf of themselves and other employees of Harte- Hanks, seeking indemnification for expenses they incurred in using their personal automobiles in the discharge of their employment duties as outside sales representatives (OSR's). Harte-Hanks presented evidence that its OSR's were paid a higher base salary and commission rates than inside sales representatives in order to compensate them for their automobile expenses. The Court of Appeal affirmed the trial court's determination that an employer can pay increased salaries or commissions instead of reimbursing an employee for the actual automobile expenses incurred – so long as the after-tax compensation fully indemnifies the employees for their expenses. Furthermore, the Court affirmed the trial court's order denying class certification on the grounds that common legal and factual issues did not predominate, that plaintiffs' claims were not typical of the class and that a class action was not a superior procedure to resolve the case. Cf. Burdusis v. Superior Court, 133 Cal. App. 4th 88 (2005) (employee could not challenge trial court judge under Cal. Code Civ. Proc. § 170.6 following remand from appellate court and order requiring reconsideration of motion to certify class in light of recent case law).

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Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177 (9th Cir. 2005)

Hugh Hardage, a Local Sales Manager for KSTW-TV in Seattle, alleged that he was sexually harassed by Kathy Sparks, the station's General Manager, who worked in Tacoma. Hardage claimed that he had been sexually harassed by Sparks on several occasions and subjected to retaliation after he rejected her advances, which occurred in the office and on five occasions outside of the office. Among other things, Hardage alleged that Sparks had touched and groped him, put her arms around his waist and said that he had a "cute ass," offered him oral sex and "life-altering" intercourse and then responded with emotional outbursts and job-related threats after he rejected her advances. Hardage's job performance was called into question when he and another Local Sales Manager repeatedly failed to meet their sales goals. Shortly thereafter (but five months after Sparks' last sexual advance), Hardage resigned his employment because adverse market conditions had created a "pretty intense environment." The Ninth Circuit affirmed summary judgment in defendants' favor based upon the Faragher/Ellerth affirmative defense available under Title VII. The Court observed that Sparks' alleged sexual harassment of Hardage ceased well in advance of his resignation and, therefore, could not have led to the constructive termination of his employment. Further, the Court held that the employer's response to Hardage's complaint of harassment (such as it was) was "both prompt and reasonable as a matter of law." Finally, since Hardage had waited six months to make a complaint about Sparks and then specifically asked the company not to investigate, he unreasonably failed to make use of the employer's anti-harassment policies and procedures.

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