May 2018 Update
In Flethez v San Bernardino County Employees Retirement Ass’n (2017) 2 C5th 630, the court held that prejudgment interest may be recovered from any debtor, including a public entity, as long as the claimant shows (1) an underlying monetary obligation; (2) damages that are certain or capable of being made certain by calculation; and (3) a right to recovery that vests on a particular day. See §2.26.
An injured plaintiff whose medical expenses are paid through private insurance may recover no more than the amounts the plaintiff or his or her insurer paid for the medical services received or still owing at the time of trial. Howell v Hamilton Meats & Provisions, Inc. (2011) 52 C4th 541, 566. See also Moore v Mercer (2016) 4 CA5th 424 (following Howell). See §3.5.
In Light v Department of Parks & Recreation (2017) 14 CA5th 75, the plaintiff sued her former employer for retaliation and failure to prevent retaliation in violation of the California Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996), and intentional infliction of emotional distress. She alleged that after she refused to tell a supervisor what she discussed with an investigator regarding a coworker’s discrimination complaint, the supervisor isolated her, moved her to a different office, verbally and physically attacked her, and told her she would no longer work for the employer when her current assignment was over. In addition, another supervisor rescinded an offer to train her for a new position, she was later rejected for promotion to that position, and the employer ultimately reduced her scheduled hours to zero. The court found that for purposes of the claim of intentional infliction of emotional distress, the workers’ compensation exclusivity provision was not a bar, because unlawful discrimination and retaliation in violation of FEHA falls outside the compensation bargain. See §§3.11, 3.22.
In Paleg v Kmart Corp. (CD Cal, July 11, 2017, No. CV 17-00899-SVW-SP) 2017 US Dist Lexis 108155, the court held that workers’ compensation exclusivity provisions also do not bar a claim of intentional infliction of emotional distress when the underlying harm alleged is for age discrimination. See §§3.11, 3.22.
In Matson v UPS (9th Cir 2016) 840 F3d 1126, the Ninth Circuit held that the Labor Management Relations Act of 1947 (LMRA) (29 USC §185) did not preempt a state law hostile work environment claim, when the determination of whether the employer favored men in particular assignments did not turn on the interpretation of a collective bargaining agreement. See §3.12.
In Olson v Manhattan Beach Unified Sch. Dist. (2017) 17 CA5th 1052, the court held that a grievance filed under a collective bargaining agreement did not satisfy the claim requirements of the Government Claims Act (Govt C §§810–996.6). Further, the plaintiff’s argument that the filing of a claim would have been a futile act did not excuse compliance with the Act’s requirements. See §3.13.
In calculating damages, an employer is entitled to an offset for the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment. However, this duty to mitigate does not require that the plaintiff accept a position that is not substantially equivalent to, or of the same quality as, the one that was lost. In this regard, see Wadler v Bio-Rad Labs., Inc. (ND Cal, Feb. 6, 2017, No. 15-cv-02356-JCS) 2017 US Dist Lexis 16522 (defendant did not offer any reliable data establishing availability of comparable jobs as a statistical matter; further, plaintiff held high-level position and had acquired decades of seniority; relying on generic job titles to show availability of comparable positions was particularly inappropriate). See §§3.14, 4.20.
In Freeman Expositions, Inc. v Global Experience Specialists, Inc. (CD Cal, Apr. 24, 2017, No. SACV 17-00364-CJC (JDEx)) 2017 US Dist Lexis 62087, the court held that a noncompete agreement signed in Nevada between a Nevada resident and a Nevada corporation and containing a Nevada choice of law provision could not be enforced in California after the employee moved to California. See §3.34.
In Minnick v Automotive Creations, Inc. (2017) 13 CA5th 1000, the court of appeal held that the employers’ vacation policy lawfully provided that employees did not begin to earn vacation time until after their first year of employment. Because plaintiff’s employment ended during his first year, he did not have any vested or accrued vacation pay and was not owed any vacation wages. See §4.16.
The California minimum wage will increase from $11.00 per hour to $15.00 per hour between January 1, 2018, and January 1, 2023, depending on the size of the employer’s workforce. See §4.115.
In Arias v Raimondo (9th Cir 2017) 860 F3d 1185, the court permitted an employee to proceed with a retaliation action against his employer’s attorney, who had threatened him with deportation if he did not dismiss his FLSA action against the employer. See §4.116.
The federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 USC §§4301–4335) does not prohibit the compelled arbitration of a servicemember’s claims against his employer. Ziober v BLB Resources, Inc. (9th Cir 2016) 839 F3d 814. See §4.125.
Effective January 1, 2018, Lab C §6310 prohibits employers from discharging or discriminating against an employee who has (1) reported a work-related fatality, injury, or illness (except for purposes of a workers’ compensation claim); (2) requested access to occupational injury or illness reports and records; or (3) exercised any other rights protected by the federal OSHA (29 USC §§651–678). See §4.125.
The maximum penalty for a Cal/OSHA citation classified as “willful” has been increased from $70,000 to $124,709. Lab C §6429. See §4.131.
The New Parent Leave Act (Govt C §12945.6) became effective January 1, 2018. It requires employers with 20 to 49 employees to provide up to 12 workweeks of job-protected leave for an employee to bond with a new child within 1 year of the child’s birth, adoption, or foster care placement. See §4.132.
California WARN (Lab C §§1400–1408), our state’s counterpart to the federal act, is triggered by a “layoff,” which is defined as “a separation from a position for lack of funds or lack of work.” Lab C §1400(c). Unlike the federal WARN, California’s act does not include a time component. In International Bhd. of Boilermakers, etc. v NASSCO Holdings, Inc. (2017) 17 CA5th 1105, the employer laid off about 90 employees for a period of approximately 4–5 weeks. The employer did not provide notice of the layoff to its employees, and when the employees sued, the employer argued that California WARN did not apply because the layoff was temporary only. The court rejected that argument. Under California WARN, a “separation from a position” can be permanent or temporary. There is no reasonable basis to conclude that a 4–5 week layoff does not constitute a “separation from position,” but a 6–7 month layoff does. The legislative history and underlying public policy support the conclusion that an employer has the obligation to provide notice even if the intended layoff is temporary and short term. See §4.145.
When and how employers may consider criminal convictions continues to be a hot topic, both nationally and in California. Against this backdrop, AB 1008 amended the Fair Employment and Housing Act (FEHA) to preclude most employers from inquiring about an applicant’s criminal record or conviction history until after a conditional employment offer is made, and imposed new notice and disclosure requirements if this information is sought. See §4.146I.
In McGill v Citibank, N.A. (2017) 2 C5th 945, the California Supreme Court held that a predispute arbitration agreement that waived the right to seek public injunctive relief under the UCL in any forum was against public policy. See §5.14.
Whistleblower protections under the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank) (Pub L 111–203, 124 Stat 1376) only extend to individuals who have reported a violation of the securities laws to the Securities and Exchange Commission. Digital Realty Trust, Inc. v Somers (2018) 583 US ___, 138 S Ct 767. See §5.16.
Effective January 1, 2018, a whistleblowing employee bringing a civil action under Lab C §1102.5 may also seek injunctive relief from the court. Lab C §§1102.61, 1102.62. See §5.16.
An employer may compel arbitration of a returning servicemember’s claims under USERRA. Ziober v BLB Resources, Inc. (9th Cir 2016) 839 F3d 814. See also Ziober v BLB Resources, Inc. (9th Cir 2016) 839 F3d 814, 817 (USERRA does not supersede arbitration clauses in employment agreements when those clauses do not reduce, limit, or eliminate rights under USERRA). See §5.17.
In Lopez v Friant & Assocs., LLC (2017) 15 CA5th 773, 780, the court held that penalties under the Labor Code Private Attorneys General Act (PAGA) (Lab C §§2698–2699.5) are available for violations of Lab C §226(a) (concerning wage statements), without proving injury as required under Lab C §226(e). See §7.5.
In Kim v Reins Int’l Cal., Inc. (2017) 18 CA5th 1052, the court held that a plaintiff who settled and dismissed his individual wage claims against the employer was no longer an “aggrieved employee,” and therefore could no longer maintain a PAGA representative action. See §7.12.
The court in Betancourt v Prudential Overall Supply (2017) 9 CA5th 439, 445, affirmed the denial of a motion to compel arbitration, “because a defendant cannot rely on a predispute waiver by a private employee to compel arbitration in a PAGA case, which is brought on behalf of the state.” And the Ninth Circuit in Poublon v C.H. Robinson Co. (9th Cir 2017) 846 F3d 1251, 1263, acknowledged that a provision waiving a PAGA representative action is unenforceable, but noted that this does not automatically mean that the provision is also substantively unconscionable. See §7.50.
Although PAGA actions generally may not be waived through arbitration clauses (see Iskanian v CLS Transp. Los Angeles, LLC (2014) 59 C4th 348), claims for recovery of wages under Lab C §558 are subject to arbitration. Esparza v KS Indus., L.P. (2017) 13 CA5th 1228, 1245. See §7.50.
In PAGA actions, the California Supreme Court has held that the “default position” is that discovery of represented employees’ contact information is proper and “an essential first step to prosecution of any representative action.” Williams v Superior Court (2017) 3 C5th 531. Courts may not condition disclosure on proof that the representative plaintiff was subjected to Labor Code violations or that there was a noncompliant uniform or companywide policy. Privacy interests may be addressed through procedures adopted for class action discovery. See §7.56.
The Tax Cuts and Jobs Act (Pub L 115–97, 131 Stat 2054) added IRC §162(q). Under that new section, effective December 23, 2017, payments made or incurred that relate to sexual harassment and abuse claims will no longer be deductible to the extent that they are (a) payments of a settlement subject to a nondisclosure agreement; or (b) payments of attorney fees for such a settlement. See §9.26.
Effective January 1, 2018, it is an unlawful employment practice for an employer with five or more employees to (a) include on any application for employment questions that seek the disclosure of an applicant’s criminal conviction history; or (b) inquire into or consider the conviction history of the applicant, until after the employer has made a conditional offer of employment to the applicant. Govt C §12952(a). See §10.38.
Labor Code §6310 prohibits retaliation against employees who complain about workplace safety or institute or testify in proceedings under the California Occupational Safety and Health Act of 1973 (Cal/OSHA) (Lab C §§6300–6719). Lab C §6310(a). Effective January 1, 2018, the statute also prohibits retaliation against employees who report a work-related fatality, injury, or illness, or request access to occupational injury or illness reports and records. Lab C §6310(a)(4). See §10.50.
In Kesner v Superior Court (2016) 1 C5th 1132, the California Supreme Court held that an employer’s duty to exercise ordinary care in the use of asbestos includes preventing exposure to asbestos carried by the bodies and clothing of on-site workers. When it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the worksite to household members, employers have a duty to take reasonable care to prevent this means of transmission. See §10.52.