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

Deveraturda v. Globe Aviation Sec. Services, 454 F.3d 1043 (9th Cir. 2006)

Virgil Deveraturda and other similarly situated employees, who were employed by Globe Airport Security Services to provide screening services at San Jose International Airport, were laid off as a result of the Aviation and Transportation Security Act of 2001. The employees were not given the 60 days’ notice provided under the WARN Act. The Ninth Circuit held the WARN Act did not apply because the layoff resulted from the government’s decision after September 11th to federalize airport security, a decision over which Globe had no control.

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Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260 (2006)

Peggy Soukup, a former employee of the Law Offices of Herbert Hafif, sued Ronald C. Stock for abuse of process and malicious prosecution based upon Stock’s prosecution of an earlier lawsuit against Soukup on behalf of the Hafifs and their law firm. The underlying lawsuit, which involved Soukup’s alleged disclosure to a third party of confidential information that Soukup obtained during her employment with the Hafifs, was itself dismissed in response to Soukup’s special motion to strike under the anti-SLAPP provisions of the Code of Civil Procedure. Although the trial court denied Stock’s special motion to strike the malicious prosecution lawsuit, the Court of Appeal reversed, holding that the later action arose out of Stock’s exercise of his free expression rights on behalf of his clients, the Hafifs. However, the California Supreme Court reversed the Court of Appeal, holding that Soukup had demonstrated a probability of prevailing on her malicious prosecution action. Cf. Flatley v. Mauro, 39 Cal. 4th 299 (2006) (attorney’s letter and telephone calls to prominent entertainer demanding $1 million in exchange for not publicly accusing him of rape constituted civil extortion and was not protected activity under anti- SLAPP statute).

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Butler v. The Vons Companies, Inc., 140 Cal. App. 4th 943 (2006)

While working as a stock clerk for Vons, Sheldon Butler signed a “Compromise and Release Settlement Agreement” arising from an altercation that Butler had with a coemployee. Approximately two years later, Butler filed unrelated claims alleging employment discrimination and violation of Business & Professions Code § 17200, and Vons sought to rely upon the Release to bar Butler’s claims. The trial court granted Vons’ motion for summary judgment, but the Court of Appeal reversed, holding that the scope of the waiver contained in the Release was ambiguous. The “principal source of ambiguity” was that there were three parties to the Release – Vons, Butler and Butler’s union. (The reason for the union’s participation was that the union had filed, pursued and resolved the grievance that arose from the altercation that was the subject of the initial dispute.) The Court concluded “as a broad general proposition, it does not necessarily follow that the settlement of a labor grievance between a union and an employer is intended to extend to personal claims of the employee.” Cf. Californians for Disability Rights v. Mervyn’s, LLC, 39 Cal. 4th 223 (2006) (Proposition 64 amendments to the Unfair Competition Law apply to pending cases).

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Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006)

In this proceeding, several California clients of SSB filed a putative class action seeking damages and injunctive relief against SSB’s Atlanta-based branch’s practice of recording telephone conversations with California residents without their knowledge or consent. The lower court affirmed dismissal of the lawsuit after applying the law of the State of Georgia. The California Supreme Court, however, concluded that the failure to apply California law in this context would impair California’s interest in protecting the degree of privacy afforded to California residents by California law. Further, the Supreme Court concluded that applying Georgia law in this instance would place California businesses (that are subject to California’s privacy law) at an unfair disadvantage vis-à-vis their out-ofstate competitors. The Court also concluded that the action could go forward insofar as plaintiffs sought injunctive relief but not damages or restitution based on SSB’s past conduct.

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Singleton v. United States Gypsum Co., 140 Cal. App. 4th 1547 (2006)

John Singleton, a maintenance mechanic employed by USG, was, according to the employer, terminated for having said words to the effect of “if we [have to] work on Christmas, I am going to come in here with a gun and shoot everybody except Sandy.” Singleton denied making the statement though he admitted to being angry about possibly having to work on Christmas and saying, “Now I know why some people go postal.” In his lawsuit, alleging sexual harassment and unlawful retaliation, among other things, Singleton asserted that prior to his termination he was subjected to harassing comments from two of his male coworkers who called him names (e.g., “Sing-a-ling”) and who talked about his performing oral sex on them and their engaging in anal sex with him. Singleton further testified that his supervisors ignored his complaints about these statements that made his employment a “living hell.” The Court of Appeal reversed the summary judgment that had been entered in favor of the employer, concluding there was sufficient evidence to create a triable issue of material fact. See also Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405 (2006) (reassignment of female employee’s duties and suspension without pay – followed by reinstatement and provision of backpay – constituted retaliation in violation of Title VII); Blum v. Superior Court, 141 Cal. App. 4th 418 (2006) (employee’s attorney – instead of employee himself – may verify DFEH complaint).

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Smith v. Superior Court (L’Oréal USA, Inc.), 39 Cal. 4th 77 (2006)

Aspiring actress and model, Amanza Smith, worked as a “hair model” for L’Oréal at Christophe hair salon for which she was paid $500 for one day’s work. L’Oréal considered Smith to be an independent contractor and took more than two months to pay her the compensation it owed to her. Smith filed a class action on behalf of herself and other similarly-situated hair models, alleging, among other things, violation of Labor Code § 201 (requiring immediate payment of wages earned upon discharge of an employee) and seeking waiting-time penalties under section 203 in the amount of $500 per day per hair model for 30 days based on the latepayment of compensation. The trial court agreed with L’Oréal that the word “discharge” as used in Labor Code § 201 means “the affirmative dismissal of an employee by an employer from ongoing employment and does not include the completion of a set period of employment or a specified task” and granted summary adjudication in L’Oréal’s favor. Although the Court of Appeal denied Smith’s petition for a writ of mandate, the California Supreme Court reversed, holding that when an employee is released after completing a specific job assignment or time duration for which the employee was hired, he or she is entitled to immediate payment of the earned wages. Cf. Marathon Entm’t, Inc. v. Blasi, 140 Cal. App. 4th 1001 (2006) (actor’s personal manager could be entitled to commission for procuring employment for actor despite not being licensed as a talent agency).

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Dark v. Curry County, 451 F.3d 1078 (9th Cir. 2006)

Robert Dark, an epileptic since the age of 16, worked as a maintenance and construction worker for Curry County, Oregon for approximately 16 years. Among other things, Dark operated heavy equipment such as construction vehicles for the County. On the morning of January 15, 2002, Dark experienced an “aura” (a “nervous jerk”) that signaled to Dark he might have a seizure that day – approximately half of the time after experiencing an aura, Dark would have a seizure. Despite this warning, Dark reported for work as scheduled and failed to inform anyone of the possibility of his suffering an epileptic seizure. Later that day, Dark suffered a seizure and fell unconscious while driving a County pickup truck. Dark’s passenger, another County employee, was able to gain control of the truck before anyone was injured. Following a disciplinary hearing, Dark’s employment was terminated on the ground that he could not perform the essential functions of his position and that his continued employment posed a threat to the safety of others. Dark filed a lawsuit under the Americans with Disabilities Act (ADA), alleging discrimination on the basis of a disability. The district court granted the County’s motion for summary judgment, but the Court of Appeals reversed after observing that the County had offered “two divergent explanations” for Dark’s termination: (1) inability to perform the essential functions of the job and (2) misconduct associated with operating the truck in total disregard of the safety of himself and others. The Court concluded the “summary judgment record is replete with evidence suggesting that ‘misconduct’ was a pretext for discrimination on the basis of a disability” and that a genuine issue of material fact existed as to whether a reasonable accommodation could have been provided to Dark. Cf. Teichert Constr. v. Cal-OSHA, 140 Cal. App. 4th 883 (2006) (Cal-OSHA regulation requiring hauling and earth moving operations to “be controlled” was not unreasonably vague).
 

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