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

On Wednesday, June 22, from 12:00 to 1:00 p.m., Anthony Oncidi of Proskauer and plaintiff-side attorney, Andrew Friedman of Helmer Friedman LLP, will summarize the latest developments and discuss the practical implications of this year’s most significant employment decisions. Among other developments, attendees will hear about the new U.S. Supreme Court rulings regarding the “cat’s paw” liability theory (Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011)), third-party retaliation claims (Thompson v. North Am. Stainless, LP, 131 S. Ct. 863 (2011)), whether state limitations on arbitration agreements are preempted by federal law (AT&T Mobility v. Concepcion, 2011 WL 1561956 (2011)), and whether an employee who complained orally about a FLSA violation is protected from retaliation (Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011)). And, of course, our panelists will cover the latest developments in the ongoing deluge of wage-and-hour cases including new cases holding that the “explicit mutual wage doctrine” barred a janitor’s claim for additional unpaid overtime (Arechiga v. Dolores Press, Inc., 192 Cal. App. 4th 567 (2011). They also will discuss how employees who misuse their employer's computer system to set up a competing business may be in violation of the federal Computer Fraud and Abuse Act (U.S. v. Nosal, 2011 WL 1585600 (9th Cir. 2011)) and the latest from the California courts on whether an allegedly "bi-polar" employee who threatened co-workers can assert a disability discrimination claim once she's been fired (Willis v. Superior Court, 194 Cal. App. 4th 312 (2011)).

The presentation will earn attendees 1 hour of participatory CLE credit. To register, see 2011 Employment Law Update: A Mid-Year Review of Recent Developments or go to http://www.legalspan.com/calbar/catalog.asp and select Tele-Seminars and Webinars.

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Chavez v. City of Los Angeles, 47 Cal. 4th 970 (2010)

Over the course of six years, Robert Chavez, a Los Angeles Police Department officer, and his wife filed multiple lawsuits against the LAPD and other members of the LAPD, alleging a variety of claims involving discrimination, harassment and retaliation. In this particular lawsuit, Chavez alleged the city and three of his supervisors had harassed, discriminated and retaliated against him based upon a perceived mental disability and for filing previous state and federal discrimination claims. The jury determined that Chavez’s protected activity was a motivating factor in the decision to rescind his transfer and awarded him $1,500 in lost wages and $10,000 for emotional distress. After the trial, Chavez’s attorney submitted a request for $871,000 in attorney’s fees incurred during five years of litigation against the city on Chavez’s behalf. Even though Chavez was technically the “prevailing party” in the litigation, the trial court denied the fee request on the ground that the court has discretion to deny fees and costs if the matter could have been but was not brought as a “limited civil case” in which the amount in controversy does not exceed $25,000. Although the court of appeal reversed on the ground that the limited civil case rules are inapplicable to a claim filed under the Fair Employment and Housing Act, the Supreme Court reversed the court of appeal and reinstated the trial court’s order denying the recovery of fees “in light of plaintiff’s minimal success and grossly inflated attorney fee request.”

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Scotch v. Art Inst. of Cal.-Orange County, Inc., 173 Cal. App. 4th 986 (2009)

Carmine Scotch sued his former employer, the Art Institute of California-Orange County, Inc. (“AIC”) for discrimination based on his disability (HIV), failure to make reasonable accommodation, failure to engage in the required interactive process, failure to maintain a workplace free of discrimination, and retaliation. The Court of Appeal affirmed summary judgment in favor of AIC on all counts, holding that Scotch had failed to prove a causal link between his revelation that he was HIV-positive and the challenged adverse employment decision (assigning him to teach fewer than five course sections during an academic term). The Court further held the accommodation that Scotch sought (giving him priority in assignment of courses to ensure that he would teach five courses during the term) was not reasonable. Finally, the Court held that Scotch had failed to identify a reasonable accommodation that would have been available at the time the interactive process should have occurred, so any failure on AIC’s part to engage in that process was not “material.” The Court also found no evidence of constructive termination of Scotch’s employment or illegal retaliation. Cf. Knappenberger v. City of Phoenix, 566 F.3d 936 (9th Cir. 2009) (plaintiff failed to allege facts which, if true, would establish his early retirement from police department was involuntary and a violation of 42 U.S.C. § 1983).

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Rohr v. Salt River Project Agric. Improvement & Power Dist., 2009 WL 349798 (9th Cir. 2009)

Larry Rohr, an insulin-dependent type 2 diabetic, brought suit for employment discrimination under the Americans with Disabilities Act (“ADA”). The district court granted the employer’s motion for summary judgment on the grounds that he failed to raise a material issue of fact concerning whether he had a disability within the meaning of the ADA and because of his inability to complete a certification test, which rendered him unqualified for his position as a welding metallurgy specialist. The Court of Appeals for the Ninth Circuit reversed the judgment, holding that “diabetes is a ‘physical impairment’ because it affects the digestive, hemic and endocrine systems, and eating is a ‘major life activity.’” Further, the Court held that Rohr had raised a genuine issue of material fact as to whether he is “significantly restricted as to the condition, manner or duration” in which he can eat, compared to the general population. (Although the Court did not have to decide whether the ADA Amendments Act (“ADAAA”), which became effective on January 1, 2009, applied to this case, it noted that the ADAAA “sheds light on Congress’ original intent when it enacted the ADA.”) Finally, the Court held that Rohr also raised a genuine issue as to whether he was “qualified” for his position within the meaning of the ADA, “since with the exception of the respirator certification requirement, which may itself be found to be discriminatory, he provided sufficient evidence that he satisfied all of Salt River’s job-related requirements and could perform the essential functions of his position.”

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Ross v. Ragingwire Telecommunications, Inc., 42 Cal. 4th 920 (2008)

In accordance with the Compassionate Use Act of 1996 (Proposition 215), Gary Ross had a physician’s recommendation to use marijuana for his chronic back pain. Ragingwire offered Ross a job as a lead systems administrator subject to his passing a drug test, which he failed when he tested positive for THC (the active chemical found in marijuana). Ragingwire terminated Ross’ employment because he failed the drug test. Ross sued Ragingwire for disability discrimination (on the theory that marijuana use is a reasonable accommodation for his back pain), wrongful termination in violation of public policy and breach of contract. The Court of Appeal affirmed dismissal on demurrer of Ross’ complaint, holding that an employer need not accommodate a disability by allowing an employee to use a drug that is illegal under federal if not state law. Similarly, the Court held there was good cause as a matter of law to terminate Ross’ employment. The California Supreme Court affirmed. Cf. Dible v. City of Chandler, 515 F.3d 918 (9th Cir. 2008) (police officer’s First Amendment rights were not violated when he was terminated for participating in a sexually explicit website with his wife).
 

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