California Employment Law Update

Los Angeles Jury Awards $15.4 Million To Former LA Times Columnist


Employers all over California are once again hearing the siren call of arbitration in the wake of a $15.4 million single-plaintiff verdict that a Los Angeles jury delivered to a former Los Angeles Times sports columnist on Monday.  T.J. Simers sued the paper for age and disability discrimination.  Simers quit his job in 2013 following an investigation into a possible ethical breach on his part, which resulted in a “final written warning” and a change of his position from columnist to senior reporter.  Although Simers was given an offer to return to his prior position as a columnist less than three weeks later, he declined because he “did not trust The Times“; instead, he accepted a new position at the Orange County Register.

Simers filed this lawsuit against The Times, alleging that he was forced to quit his job due to age and disability discrimination (shortly before he quit, Simers allegedly suffered a “neurological event” from which he quickly recovered).  In 2015, a jury awarded Simers $7.1 million based on the alleged discrimination, but the trial judge ordered a new trial on damages.  In this retrial, a new jury awarded Simers more than twice as much money ($15.4 million) for his noneconomic/emotional distress damages.  After the verdict, one of Simers’ lawyers boasted that after prejudgment interest and attorney’s fees were added to the award, it would exceed $22 million.

Public Employee Union Members Sue Over Forced Dues Payments

Five In-Home Supportive Service (“IHSS”) providers filed a class-action lawsuit last month challenging their union’s practice of deducting union dues despite their quitting the union. The workers allege their First Amendment rights are being violated by the union deducting dues from their paychecks and using it to subsidize union speech.  Just one year ago, the United States Supreme Court held that it is a violation of the First Amendment to require public sector employees who are not members of a union to pay any union dues, even when a portion of those dues is attributable to the costs of collective bargaining on behalf of all employees.

While an IHSS provider can resign from the union at any time, the employees allege that the union continues to deduct and collect union dues from them even after they have resigned from the union.  The employees seek to certify a class of IHSS providers from whom union dues can be deducted after the individual provided notice that he or she opposed paying dues.

The lawsuit requests declaratory judgment that deducting and collecting union dues from class members violates the First Amendment, as well as injunctive relief enjoining the union from deducting and collecting union dues from class members.

California Law Requiring Female Board Members Challenged In Court

Earlier this week, three taxpayers sued California Secretary of State Alex Padilla to prevent enforcement of Senate Bill 826.

Senate Bill 826, signed into law last year by former Governor Jerry Brown, requires that by the end of 2019, all publicly held foreign or domestic corporations whose principal executive offices are in California shall have at least one female director on their boards of directors. By 2021, such corporations are required to have at least two female directors if the board has five members or at least three female directors if the board has six or more members.

The lawsuit asserts that this “quota system” violates Article I, Section 31 of the California Constitution, which prevents discrimination based on sex.  The Plaintiffs ask for a judgment declaring illegal all expenditure of taxpayer funds and taxpayer-resources to enforce SB 826 as well as an injunction permanently prohibiting Padilla from enforcing SB 826.

The lawsuit was filed by Judicial Watch, Inc., a self-described “conservative, non-partisan educational foundation, [that] promotes transparency, accountability and integrity in government, politics and the law.”

This is the second lawsuit filed by Judicial Watch against California in the past week. Last week, Judicial Watch sued the state for its new law requiring presidential candidates to disclose their tax returns in order to appear on a primary ballot.

EEOC Has Begun Denying Employers’ Requests For Extensions Of Time To Respond To Discrimination Charges

What used to be a routine request – asking the Equal Employment Opportunity Commission (EEOC) for an extension of time when responding to a charge of discrimination or harassment and assuming extra time would be granted – apparently is no longer such an automatic thing. In what may signal a broader shift in policy, the EEOC in Los Angeles recently denied an employer’s request for a brief extension of time to provide a position statement.  When asked for an explanation as to why the extension had been denied, the EEOC responded that while in the past they have granted extensions, there is a mandate from the administration to move cases along quickly and extensions will be granted now only in extraordinary circumstances.

It remains unclear whether this is just a new policy in the Los Angeles office of the EEOC or a nationwide change.  On its website, the EEOC notes that an extension of time will only be granted “when it is clear that the Respondent is working with due diligence to supply all of the necessary information.”

What does this all mean?

  • Employers should no longer assume that the EEOC will grant extensions of time as a matter of course.
  • Once a charge is received from the EEOC (if not before), an employer should immediately commence a prompt, thorough and effective investigation and be prepared to complete a timely written position statement for the EEOC.
  • Before conducting a timely and effective internal investigation, employers should consult counsel as well as the website of the California Department of Fair Employment and Housing here.

The elements of what constitutes an “effective EEOC position statement” can be found on the EEOC’s website.

Proskauer Scores Two Summary Judgments for Large Southern California Hospital Within 48 Hours

We’re delighted to report that we secured two summary judgments in two separate alleged discrimination cases on behalf of a large Southern California hospital in matters that were pending in the Los Angeles Superior Court.

In one case, decided on July 12, 2019, the Court agreed with our client that the former employee had failed to establish a prima facie case of discrimination and, as a result, all of her discrimination and retaliation claims were dismissed; the court ruled that the employee had been terminated for legitimate, nondiscriminatory reasons – she had worked “off the clock” and violated various policies and procedures of the hospital.

The hospital moved for summary judgment on all claims; the employee argued that the hospital’s reason for termination was “pre-textual” and was instead motivated by her purported disability, age, and her report of a “lunch break violation.”  Judge Dennis J. Landin determined that there was no triable issue of material fact because the employee failed to make a prima facie showing and then granted the hospital’s motion for summary judgment in its entirety.

And just two days before that, we defended the hospital in another lawsuit filed by a former employee who alleged claims of disability discrimination, retaliation, failure to provide reasonable accommodations, failure to engage in the interactive process, failure to maintain a discrimination free environment, retaliation, wrongful termination in violation of public policy, and violation of California Labor Code § 1102.5 (whistleblower).

In that case, decided on July 10, 2019, the hospital argued that the employee failed to establish a prima facie case of discrimination, that the hospital had reasonably accommodated her, and that it had terminated her for a legitimate nondiscriminatory reason – she consistently committed serious errors.

The hospital moved for summary judgment on all claims; the employee opposed and argued that the hospital’s reason for termination was “pre-textual” and was instead motivated by her purported disability and extended medical leave. Judge Richard J. Burdge, having found no evidence of pretext and no disputed issues of material fact, granted the hospital’s motion for summary judgment in its entirety.

The team on these two cases included partner Anthony Oncidi, and associates Pietro Deserio, Tulio Chirinos and Cole Lewis (Employment Litigation).

California Enacts Law Prohibiting Hairstyle Discrimination … with New York and New Jersey Close Behind

As we have reported before, California is set to become the first state to prohibit employers from discriminating based upon hairstyle. Last week, Governor Gavin Newsom signed into law the “CROWN Act” (Create a Respectful and Open Workplace for Natural Hair).

The CROWN Act amends the state’s Education Code and Government Code to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The new law expressly defines “protective hairstyles” as including but not limited to “braids, locks, and twists.”

Introduced by Sen. Holly Mitchell (D-Los Angeles), the CROWN Act “protects the right of Black Californians to choose to wear their hair in its natural form, without pressure to conform to Eurocentric norms,” Mitchell said. Governor Newsom called the law “long overdue,” and the bill passed both the Senate and the Assembly unanimously. The new law takes effect on January 1, 2020.

Meanwhile, on the East Coast, both New York and New Jersey also are advancing laws that would protect against hairstyle-based discrimination.

In New York, SB 6209 would amend the definition of “race” under the New York State Human Rights Law (NYSHRL) to include “traits historically associated with race, including but not limited to, hair texture and protective hairstyles,” thus making it unlawful under the NYSHRL to discriminate on the basis of such traits in employment, as well as housing and in public accommodations.   The bill also would extend similar protections to students covered under the state’s Education Law.

Similarly in New Jersey, SB 3945 would expand the definition of “race” under the New Jersey Law Against Discrimination (which also prohibits discrimination in employment, housing, and public accommodations) to include “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.”

Like the California law, the New York and New Jersey bills define “protective hairstyles” to include hairstyles such as braids, locks, and twists.

The New York bill is currently before Governor Andrew Cuomo, who is expected to sign.  The New Jersey bill is still being considered by the state Senate and Assembly Labor Committees.  Both bills, if signed, would take effect immediately.

UPDATE: Governor Andrew Cuomo signed the New York bill into law on July 12, 2019 (effective immediately).

“Bikini Baristas” Ordered to Cover-Up

The 9th Circuit court of appeals has enforced the City of Everett, Washington’s Dress Code Ordinance and amendments to the Lewd Conduct Ordinances. These ordinances require employees of “Quick-Service” facilities to cover “minimum body areas” (the dress code ordinance specifically stated that it was targeting an apparent influx of “bikini barista stands”). The owner of “Hillbilly Hotties,” a coffee stand where employees wear only bikinis, and several of the bikini baristas themselves challenged the ordinances as unconstitutionally vague. Plaintiffs also alleged that the Ordinances violated their First Amendment right to free expression.

The Court of Appeals reversed a lower court ruling that prohibited enforcement of the Ordinances on the ground that they are unconstitutionally vague. The appeals court explained that a person of ordinary intelligence would be able to understand the terms in the Ordinance and would be adequately informed of which body areas cannot be exposed or displayed.

The Ninth Circuit also concluded that Plaintiffs’ first amendment claim faltered based upon their failure to show a great likelihood that their intended message would be understood by those who received it. The court found that the baristas’ acts of wearing pasties and g-strings in close proximity to customers did not necessarily convey the baristas’ purported message of female body confidence and empowerment.

Read the full decision here.