La Vonya Price worked as a part-time substitute special education aide at the Victor Valley Unified School District before applying for a full-time position. Although she received an offer for a full-time position, it was contingent upon her passing a physical exam, which she failed. Price sued for disability discrimination and related claims. The trial court granted the District’s motion for summary judgment, but the Court of Appeal reversed in part. The appellate court rejected the District’s argument that Price was not qualified to perform the job because she failed the physical examination and was unable to perform the essential functions of the job, such as running after students. The Court disagreed that running after students was an essential function of a full-time instructional assistant’s job especially given that Price worked in the same position in a part-time capacity before being offered a full-time position. Price also established that she could have been placed in a setting where special needs students do not require any physical assistance or supervision. Further, the Court determined that the comment (repeated four times) from the District’s Director of Classified Personnel that Price was “a liability” created a triable issue of material fact as to whether the District’s stated reasons for rescinding the job offer were pretextual. The Court also held that the District was under no obligation to engage in the interactive process with Price because her disability, resulting limitations, and necessary reasonable accommodations were not open and obvious (she denied having a disability or any limitations), which meant that she had the initial burden to initiate the interactive process and request a reasonable accommodation. Finally, the Court held that the retaliation claim was properly dismissed because the decision to terminate her employment was made before she allegedly engaged in any protected activity.
While consulting for an environmental project for the United States Army Reserve Command, Aaron Killgore believed he was being required to prepare an environmental assessment in a manner that violated federal law. Killgore was fired shortly after he reported the suspected illegality to his supervisor and the Army Reserve’s project leader Chief Laura Caballero, who Killgore alleged gave the unlawful directives. The district court granted SpecPro’s partial motion for summary judgment, but the Ninth Circuit reversed, holding that Killgore’s disclosure to his supervisor was actionable even though the supervisor to whom Killgore made the disclosure did not have “authority to investigate, discover, or correct the violation” within the meaning of Cal. Lab. Code § 1102.5(b). The Court also held that Killgore’s disclosure to Caballero was an actionable disclosure to a “government agency” within the meaning of the statute even though the disclosure was part of Killgore’s normal duties and Caballero may have been a “wrongdoer” who was the subject of the disclosure. However, the Ninth Circuit affirmed dismissal of Killgore’s retaliation claim, finding that Killgore failed to present evidence that he refused to participate in illegal activity within the meaning of Section 1102.5(c).
Joyce Allen worked at Staples as a field sales director (FSD) reporting to area sales vice president Bruce Trahey; FSD Charles R. Narlock also reported to Trahey. As part of a corporate reorganization in February 2019, Trahey informed Allen and several other FSDs of his decision to eliminate their positions and terminate their employment. In her lawsuit, Allen alleged violation of the Equal Pay Act (EPA); gender discrimination and sexual harassment under the Fair Employment and Housing Act (FEHA); failure to prevent discrimination and harassment under FEHA; retaliation and wrongful termination in violation of public policy. The trial court granted defendants’ motion for summary judgment and, in the alternative, summary adjudication of each cause of action. The Court of Appeal affirmed dismissal of all claims except Allen’s EPA claim, including her claim for punitive damages.
Allen’s EPA claim was based on evidence showing a pay disparity between her starting salary as an FSD and, before that, an area sales manager (ASM) and Narlock’s salary when he started in those positions. When Allen became an ASM, her base salary was set at $84,999.96; when Narlock became an ASM, his salary was set at $107,698.86 (approximately $22,000 more than Allen’s starting salary in the position). When Allen was promoted to FSD, her annual salary was set at $86,912.46 (the same salary she was earning as an ASM); Narlock’s base salary as an FSD was $135,000 ($48,087.54 more than Allen’s salary). Staples argued that the salary differentials between Narlock and Allen are explained by bona fide factors other than gender, namely Narlock’s time with the company and his experience before taking both the ASM and FSD positions. However, because Staples relied on evidence of its general practices to set salaries based on factors such as seniority and merit, Staples failed to set forth the “specific factors on which Narlock’s base salary, in either position, was premised or the factors on which plaintiff’s base salaries were premised.” Accordingly, summary adjudication of Allen’s EPA claim had to be reversed.
The federal court for the Northern District of California recently declined to dismiss a former Al Jazeera International employee’s constructive wrongful termination claim against the news outlet, finding that requiring an employee to perform tasks more advanced than their pay level, without promotion, could constitute “intolerable” working conditions.
The plaintiff alleges she was working as a producer for Al Jazeera when she was offered a promotion to senior producer. She began taking on a senior producer’s job responsibilities, and Al Jazeera arranged for her to undergo management training. At the management training, the plaintiff discussed her experiences with gender discrimination in the workplace. Shortly after this training, an executive producer informed her that she would not be promoted to senior producer.
Even though this promotion was revoked, the plaintiff continued to be assigned work that a senior producer would do, without increased compensation or a senior producer credit for the shows she worked on. The plaintiff had the “sense” that she would never be promoted based on her gender and in retaliation for her comments about gender discrimination, including when she was told that a senior executive did not want her to speak about her experiences with discrimination. A few months after she learned she would not be promoted, the plaintiff resigned. The plaintiff then sued, alleging among other causes of action that the treatment of her constituted constructive discharge.
The court ruled the plaintiff’s complaint alleged sufficient facts to proceed; specifically, the court noted, when asked to perform a more senior position’s work “without credit, proper pay, or possibility of advancement”—and when the plaintiff reasonably believed that she would never be promoted—the plaintiff “reasonably understood her options were to either resign or be taken advantage of.”
Personnel actions like work assignment or promotion decisions typically cannot by themselves form the basis for a constructive wrongful termination claim, which requires that the working conditions themselves are “so intolerable or aggravated” that a reasonable employee “would be compelled to resign.” The court’s ruling here is a reminder that working conditions need not necessarily be dangerous, painful, or humiliating to be “intolerable” for a reasonable employee.
With the court’s denial of Al Jazeera’s motion to dismiss, the plaintiff’s constructive termination and other discrimination-related claims may proceed—for now. We will continue to monitor this case for any substantive updates.
To properly calculate the overtime rate for a non-exempt employee, employers must first calculate the “regular rate of pay.” Under federal law, and the laws of most states, the regular rate is determined by dividing the employee’s total weekly remuneration (except for a handful of categories that are specifically excluded, such as gifts and payments for non-working hours) by the total number of hours actually worked by the employee that week. But certain states, including California, require a different calculation—one that, depending on the nature of the compensation, can only be divided by some, but not all, of the total hours worked in the week.
In this regard, California law distinguishes between “flat-sum bonuses” and “production bonuses,” both of which may be paid on a weekly basis. As we’ve discussed previously, the California Supreme Court, in its 2018 decision in Alvarado v. Dart Container Corporation of California, held that when calculating the regular rate for a flat-sum bonus (e.g., an attendance bonus), the employer should divide the bonus solely by the employee’s non-overtime hours in the week. By contrast, and consistent with the federal rule, a production bonus—i.e., a bonus that varies based on output or hours worked—can be divided by all hours worked in the week (both overtime and non-overtime) to arrive at the regular rate. Alvarado left open the question of how to apply these principles to other forms of compensation.
Earlier this month, in its decision in Bowen v. Target Corp., the Ninth Circuit examined how to calculate the regular rate for shift differentials and holiday premiums (collectively called shift premiums). The plaintiffs in Bowen argued that shift premiums should be treated the same as flat-sum bonuses—i.e., that the denominator in the regular rate equation should be the total non-overtime hours worked, and not all hours worked. The Court of Appeals rejected this argument, noting that—unlike flat-sum bonuses, which are not directly impacted by the number of hours worked in a week—shift premiums directly correlate to the total number of weekly hours worked and will necessarily increase as an employee works overtime. They are therefore properly viewed as being paid in respect of all weekly hours worked, and not merely in respect of non-overtime hours.
Although Bowen is unpublished, the well-reasoned decision may provide guidance to California employers and, hopefully, other courts.
In the continuously evolving whistleblower retaliation standard we previously reported on earlier this year here and here, the Ninth Circuit has now weighed in on California Labor Code section 1102.5 in Killgore v. Specpro Pro. Serv., LLC, No. 21-15897.
In holding that a consultant on an environmental project for the U.S. Army Reserve Command raised a genuine dispute of fact over whether he was fired for disclosing what he believed to be information about a government environmental assessment project’s noncompliance with federal law, even if the supervisor lacked authority to correct the issue, the Ninth Circuit “predict[ed] that the California Supreme Court would hold that section 1102.5(b) prohibits employers from retaliating against employees who disclose potential wrongdoing to any one of several enumerated avenues: government or law enforcement agencies, a person with authority over the employee, other employees with authority to investigate, discover, or correct the violation or noncompliance, or any public body conducting an investigation, hearing, or inquiry.”
This broad view will likely make it even more difficult for employers to prevail in whistleblower retaliation cases both at the summary judgment and trial phases of a case.
Read the full post on Proskauer’s Whistleblower Defense blog.
A decade ago, a California Court of Appeal held that employers lawfully could round employees’ time punches if the rounding policy was neutral on its face and as applied. See See’s Candy Shops, Inc. v. Super. Ct., 210 Cal. App. 4th 889 (2012). In arriving at this conclusion, the See’s Court relied on regulations under the federal Fair Labor Standards Act (“FLSA”) and the California Division of Labor Standards Enforcement’s (“DLSE”) enforcement position, as no Labor Code provision or Wage Order addressed the issue. And, in the years since See’s, it was generally accepted that rounding was permissible, so long as the policy conformed to the standard set forth in See’s. However, things started to change last year.
In February 2021, in Donohue v. AMN Services, LLC, 11 Cal. 5th 58 (2021) (discussed here), the California Supreme Court held that rounding was not permissible with respect to meal periods. As we noted at the time, although the Donohue court did not rule that all time rounding was unlawful, it questioned whether the practice could be justified given technological advances in timekeeping and payroll.
On October 24, 2022, the Court of Appeal for the Sixth Appellate District took the next step toward dismantling rounding altogether in Camp v. Home Depot U.S.A., Inc., Case No. H049033, 2022 WL 13874360 (Cal. Ct. App. 2022). In the published opinion, the Court reversed summary judgment for an employer that had a facially neutral quarter hour rounding policy where the employer “could and did track the exact time in minutes that an employee worked each shift and [where] those records showed that [the employee] … was not paid for all the time he worked.”
Camp involved a putative class action by two non-exempt employees, Delmer Camp and Adriana Correa, who alleged that Home Depot’s rounding policy resulted in unpaid wages. Although Home Depot’s timekeeping system recorded employees’ work times to the minute, the company’s payroll system rounded each shift to the nearest quarter hour. While Home Depot’s records demonstrated that Correa had been overpaid over time, they also indicated that Camp was underpaid by 470 minutes. Nonetheless, there was evidence that employees were paid accurately or overpaid the majority of shifts, and that Home Depot’s rounding resulted in overpayment in almost half of all pay periods.
Relying on See’s, the trial court granted Home Depot summary judgment. While the Court of Appeal dismissed Correa’s appeal, it reversed summary judgment as to Camp. Relying heavily on the California Supreme Court’s decisions in Troester v. Starbucks Corp., 5 Cal. 5th 829 (2018) (discussed here) and Donohue, the Court remarked that the application of See’s should be reexamined in circumstances where employee’s work can be captured and has been captured to the minute and, as a result of a rounding system, the employee is not compensated for all time actually worked. Notably, the Court limited its ruling to the facts of the case, and explicitly stated it was not addressing whether: (1) neutral rounding was permissible due to an inability to capture the actual minutes an employee worked; or (2) whether an employer who has the ability to capture an employee’s minutes would be required to do so. However, the Court of Appeal “invited” the California Supreme Court to provide guidance on the propriety of time rounding by employers.
In light of Camp, employers with timekeeping systems that record time worked to the minute should promptly cease any rounding practices that result in potential underpayment of wages.
A new year brings new employment laws for California employers. California employers will want to begin revising employee policies and handbooks now, so that they are prepared to comply with these new laws when the majority of them go into effect on January 1, 2023. Here are five new employment laws that every California employer should know:
AB 1041 (Expanded Definition of “Family Member” for Medical and Sick Leave)
Through AB 1041, the California legislature amended Government Code section 12945.2 and Labor Code section 245.5 to expand the definition of “designated person” for purposes of employee medical leave. Section 12945.2 provides qualifying employees with up to 12 workweeks in any 12-month period for unpaid family care and medical leave. Section 245.5 relates to California paid sick leave. Both sections permit an employee to take protected leave to care for a “family member,” which is currently defined as a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner. With the passage of AB 1041, the Legislature added a “designated person” to this list of “family members” for whom an employee may take protected leave. A “designated person” is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” In light of this broad definition, employers should be prepared to provide employees with leave to care for a wider range of persons. An employee may identify his or her designated person at the time of requesting protected leave. However, an employer may limit an employee to one designated person per 12-month period.
AB 1949 (Bereavement Leave)
AB 1949 adds section 12945.7 to the Government Code, in order to provide employees with protected leave for bereavement. Under this new law, eligible employees may request up to five days of bereavement leave upon the death of a qualifying family member. Family member is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent in law. Although the employee must complete bereavement leave within three months of the family member’s death, the employer may not require that the five days be used consecutively. Statutory bereavement leave is unpaid, but the employer must allow the employee to use any accrued and unused paid vacation, personal leave, sick leave, or other paid time off for this purpose. Section 12945.7 prohibits discrimination, interference or retaliation against an employee for taking bereavement leave; also, the employer must maintain confidentiality when an employee takes bereavement leave. Finally, section 12945.7 does not apply to certain union employees, with an existing agreement regarding bereavement leave.
SB 1162 (Posting Pay Ranges and EEO Reporting Requirements)
SB 1162 modifies Government Code section 12999 and Labor Code section 432.3 to require employers to provide candidates with salary ranges on job postings, report employee compensation and demographic information to the California Civil Rights Department (formerly the DFEH) on an annual basis, and retain relevant records. For job postings (including those posted by third parties), employers with 15 or more employees will be required to include a pay range, which is defined as the salary or hourly wage range that the employer reasonably expects to pay for the position. In addition to the current requirement that, upon request, the employer must provide a candidate a pay range, the employer must now also provide existing employees with a pay range, when requested. Failure to comply with the pay range disclosure or record retention requirements can result in penalties of up to $10,000 per violation.
The new reporting requirement concerns annual employer pay data reports. Employers must now report the median and mean hourly rate by each combination of race, ethnicity, and sex, within each job category, with the first report due on May 10, 2023, based on 2022 pay data. Employers with 100 or more employees hired through labor contractors must now produce data on pay, hours worked, race/ethnicity, and gender information in a separate report. Employers who fail to timely file these required reports face civil penalties of up to $200 per employee.
Finally, employers must retain records of job titles and wage rate histories for each employee for the duration of the employee’s employment and three years after termination. Failure to comply with these retention requirements can result in penalties of up to $10,000 per violation.
AB 2188 (Off the Job Cannabis Use Protection)
Effective January 1, 2024, AB 2188 adds section 12954 to the Government Code, which prohibits employers from discriminating against a person because of cannabis use while off the job, with some exceptions. Employers may take action against a person who fails a pre-employment drug test, or other employer-required drug test, that does “not screen for non-psychoactive cannabis metabolites.” This is because, according to the California Legislature, cannabis “matabolites do not indicate impairment, only that the individual has consumed cannabis in the last few weeks.” The employer may administer a performance-based impairment test, and terminate any employee who is found to be impaired in the workplace. This new law does not apply to employees in the building or construction industry, or in positions requiring a federal background investigation or clearance, and does not preempt state or federal laws that require employees to be tested for controlled substances.
AB 152 (COVID-19 Supplemental Paid Sick Leave Extension)
AB 152 modified Labor Code section 248.6 and 248.7 in order to extend COVID-19 Supplemental Paid Sick Leave (SPSL), previously blogged about here, which was expected to expire on September 30, 2022. This new modification allows California employees to use any remaining SPSL through December 31, 2022. It does not provide employees with new or additional SPSL. In a departure from the original version of the law, when an employer requires an employee to take a COVID-19 test five days or later after a positive test result, the employer is now permitted to require the employee to submit to a second diagnostic test within no less than 24 hours. If the employee refuses, the employer may decline to provide additional SPSL. The employer obligation to cover the cost of any employee COVID-19 tests remains in effect.
We will continue to monitor and post about these and other forthcoming California employment laws as they develop.
We invite you to review our newly-posted October 2022 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:
- Hollywood Producer Is Not Liable For Drowning Death Of Executive Assistant
- Employer May Not Inquire Into Former Employee’s Immigration Status
- Workers’ Comp Determination Does Not Govern Outcome Of Discrimination Case
- Workplace Violence Restraining Order Reversed Absent Credible Threat Of Violence
- AutoZone May Not Have “Provided” Suitable Seating To Employees
- FEHA Employee Who Was Working Remotely May Sue In County Where She Lived
- Employee Who Left Work To Care For Ill Relative Did Not Quit Her Employment And Was Eligible For Unemployment Benefits
It just wouldn’t be Fall without the passage of a flurry of new laws, shaking up the employment landscape in California. As of the close of the legislative session on August 31, several “job killer” bills (so called by the California Chamber of Commerce as reported here and here) passed the state legislature and are awaiting action by Governor Gavin Newsom.
While Governor Newsom lost no time signing some of these bills, including AB 257 (Holden; D-Pasadena) regulating non-unionized fast food workers’ wages and working conditions (as discussed here), and AB 2188 (Quirk; D-Hayward), prohibiting employer “discrimination” against off-the-job use of cannabis, other “job killer” bills still await the Governor’s approval or veto, including:
Data Reporting and Publication
- SB 1162 Publication of Pay Data (Limón; D-Goleta) expands upon the legislation enacted two years ago requiring employers with 100 or more employees to report specific pay data annually. This bill imposes civil penalties on employers that fail to report required pay data. SB 1162 also would require covered employers to provide pay scale information to job applicants. The initial bill was amended to eliminate the requirement to publish individual pay data reports online. While CalChambers still opposes the bill, it removed the “job killer” tag after this amendment.
- AB 2183 Agricultural Labor Relations (Stone; D-Scotts Valley) changes union election procedures for agricultural employees by essentially eliminating a secret ballot election and replacing it with the submission of representation cards signed by over 50% of the employees. AB 2183 also limits employers’ ability to challenge the submitted ballot cards, forcing employers to post a bond, and includes a presumption of retaliation if an employer disciplines, suspends, demotes, lays off, terminates, or otherwise takes adverse action against a worker during a labor organization’s representation ballot card campaign. The Chamber continues to oppose this bill and it has maintained its “job killer” tag.
State of Emergency
- SB 1044 State of Emergency (Durazo; D-Los Angeles) allows employees to leave work or refuse to show up if they feel “unsafe.” It prohibits employers from taking any adverse action against employees who decide to leave the premises or not arrive at work during a state of emergency or emergency condition. Initially, the bill did not define the term “unsafe.” The bill was amended to define “a reasonable belief that the workplace or worksite is unsafe” to mean a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises. The existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations will be a relevant factor if this information is known to the employee at the time of the emergency condition. Notably, the term “emergency” does not include a health pandemic. After the amendments, the Chamber removed its “job killer” designation from the bill and has taken a neutral stance.
Other significant bills passed by the Legislature this session and on the Governor’s desk include several related to job protected leaves:
- AB 152 COVID-19 Relief: Supplemental Paid Sick Leave (Committee on Budget) would extend the current iteration of the Supplemental Paid Sick Leave (“SPSL”) requirement for COVID-19-related leave from September 30, 2022 through the end of the year. Importantly, it will not entitle employees to a new bank of SPSL. SB 152 also establishes a new grant program for specified small business to provide up to $50,000 in grants to cover some of the costs of SPSL provided in 2022.
- AB 1949 Bereavement Leave (Low; D-Palo Alto) would make it unlawful to refuse to grant eligible employees up to 5 days of bereavement leave upon the death of a family member (as defined under the California Family Rights Act, including spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law). The bill will require the leave to be completed within 3 months of the date of death. In the absence of existing policy, the leave may be unpaid, but an employee can use other available paid time such as vacation, personal, or sick leave. The leave will only be available to employees who have worked for the employer for at least 30 days prior to the commencement of the leave.
- AB 1041 Family Leave for “Designated Persons” (Wicks; D-Oakland) would expand CFRA to permit an employee to take job-protected leave to care for a “designated person.” The bill defines “designated person” as any individual related by blood or whose relationship with the employee is the “equivalent of a family relationship.” The bill provides that the employee may designate a “designated person” in advance and that an employer may limit an employee to one designated person per 12-month period.
Governor Newsom has until Friday, September 30 to sign or veto the bills passed by the Legislature. We will continue to track the final outcome of these bills.