A recent California Court of Appeal decision confirms that a California employer may be liable to an at-will employee who relocates to accept a new employment position, when the employer’s description of the kind or character of the job was misleading.  In the case Kenneth Allen White v. Smule, Inc., the Court of Appeal reversed a trial court decision to grant summary judgment in favor of the employer, after the trial court found that an at-will employee could not rely on an employer’s assurances of long-term employment.  The Court of Appeal found that, although an at-will employee may not relocate with an expectation of long-term employment, an at-will employee could rely on an employer’s misrepresentations concerning other aspects of the promised employment, including the kind and character of the job.

In the instant dispute, the Plaintiff employee alleged that while interviewing for the job, the employer told him it “was planning aggressive expansion over the course of the next few years and needed an experienced project manager to lead in building out and managing teams of project managers” in the San Francisco area.  Relying on the employer’s representations, the Plaintiff employee accepted the position and relocated from Washington to California.   Five months later, the employer eliminated the Plaintiff employee’s job position, and the Plaintiff employee’s employment, saying that it had moved the position to its Bulgaria office.  Based on these facts, the Court of Appeal found that a trier of fact could conclude that the employer “never intended to employ someone in the lead project manager position [and] instead desired nothing more… than a consultation or improvement plan on how [the company] could enhance its operations.”

California Labor Code section 970 prohibits employers from inducing an employee to relocate and accept employment with knowingly false representations regarding the kind, character, existence, or duration of work.  The Court of Appeal’s decision establishes that an employer may not cite to at-will employment alone as a defense to an employee’s claim under section 970.  Even in the context of at-will employment, an employer may still violate section 970 by mischaracterizing job duties, job title, reporting structures, compensation, working hours, benefits, or other terms and conditions of employment.

Employers can mitigate the risk of an employee making a section 970 claim by thoroughly evaluating staffing needs prior to extending an offer of employment, and detailing the terms and conditions of employment, including a detailed description of proposed job duties, in a written offer of employment.

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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.