2013 Best Best & Krieger Labor Employment Update

Labor & Employment Law
Annual Labor and Employment
Law Update for 2013
December 11, 2012

Speakers
• Alison Alpert
Partner, BB&K
• Roger Crawford
Partner, BB&K
• Joseph Ortiz
Partner, BB&K

Speakers
• Arlene Prater
Partner, BB&K
• Cynthia Germano
Partner, BB&K

New Legislation
PRESENTED BY
Roger Crawford
Partner

AB 1844
•Adds Labor Code section 980, which prohibits
companies from asking job applicants and
employees for access to their social media
accounts. Access may be requested, however,
as part of an investigation into misconduct.
•Application to public employers?

AB 2386
•Amends the Fair Employment and Housing Act
(FEHA) to prohibit discrimination against
breastfeeding mothers. Redefines the
definition of “sex” to include breastfeeding
and medical conditions related to
breastfeeding.
•Declaratory of current law.

AB 1964
• Amends Government Code section 12926(p) to include
religious dress and grooming practices as covered “beliefs
and observances” against religious discrimination.
• FEHA's “significant difficulty or expense” definition of
undue hardship, not the narrower federal Title VII
standard, applies to the FEHA religious discrimination
section.
• Also specifies that segregation, such as assigning an
employee to a stock room out of public view, will no
longer be an acceptable religious accommodation.

AB 2674
•Amends Labor Code section 1198.5 to require
employers to respond to employees’ written
request for personnel files within 30 days.
Also allows for review of personnel file by an
“employee representative.”

AB 2103
•Amends Labor Code section 515(d) to provide
that, regardless of any agreement between an
employer and an employee, salaried, non-
exempt employees must be paid overtime that
is at a rate of at least 1.5 times the weekly
salary divided by no more than 40.

AB 2675
•Adds Labor Code section 2751, which requires
that commission plans be in writing and
acknowledged by employees. Commissions do
not include “temporary, variable incentive
payments that increase, but do not decrease,
payment under the written contract.”

AB 1744 and SB 1255
•Amends Labor Code section 226 to require
that itemized wage statements for employees
of temporary services employers include the
rate of pay and total hours worked on each
assignment.
•Also broadens the definition of “injury” under
Section 226 so that an employee may recover
penalties even in the absence of an actual
injury.

SB 1193
• No later than April 1, 2013, certain business are required
to post a notice in a conspicuous place near the entrance
of the establishment, or in another conspicuous location
in clear view of the public and employees where similar
notices are customarily posted, that contains information
about organizations that provide services to eliminate
slavery and human trafficking.
• Department of Justice is tasked with developing a model
notice that complies with requirements.

New Legislation (Public)
PRESENTED BY
Alison Alpert, Esq.
Partner
Joseph Sanchez, Esq.
Partner

Assembly Bill 1203
Paid Leaves of Absence for Unelected Members
• Amends sections 45210 and 88210 of the Education Code.
• Requires a school district or a community college district to
provide a paid leave of absence to a classified employee who is
an unelected member of a school district public employee
organization or community college district public employee
organization for activities the member is authorized by the
organization to attend.
• Requires the employee organization to reimburse the school
district or community college district on behalf of an unelected
member who receives a paid leave of absence.
• Requires an employee organization to provide reasonable
notification to the employer requesting a leave of absence
without loss of compensation for any of the above-described
activities.

AB 1908
• AB 1908 amends sections 45117 and 88017 of the
Education Code.
• Requires written notice be given to a classified
employee of a school district or community college
district subject to layoff not less than 60 days before
the effective layoff date if the termination date of a
specially funded program is other than June 30, or if a
classified employee is subject to layoff as a result of a
bona fide reduction or elimination of a service
performed by a department.

AB 340 and 197
• Implements comprehensive pension reform – Public
Employees’ Pension Reform Act of 2013 (PEPRA).
• PEPRA applies to all public employers and pension plans
on or after Jan. 1, 2013 with the exception of the
University of California, as well as charter cities and
charter counties that do not participate in the California
Public Employees’ Retirement System (CalPERS) or the ‘37
Act System including the cities of Los Angeles, San
Francisco, Fresno, San Diego, and San Jose. It also
excludes any retirement plan approved by the voters of
any entity before Jan. 1, 2013.

AB 340 and 197 (cont.)
• Amends various provisions of the Public Employees' Retirement Law
("PERL"), Teachers' Retirement Law ("TRL") and County Employees'
Retirement Law of 1937 ("CERL")
• Centerpiece of AB 340 is the California Public Employees' Pension
Reform Act (“PEPRA”)
• PEPRA applies to nearly all public employers in California
• Key provisions of AB 340 that are of interest to local public agencies,
including counties, cities, special districts and school districts, include
the following ten pension reform measures: (1) equal sharing of the
annual normal cost of benefits; (2) compulsory reduced retirement
formulas and increased retirement ages; (3) limitations on pensionable
compensation; (4) anti-spiking provisions; (5) limitations on post-
retirement employment; (6) forfeiture of pension benefits upon the
conviction of certain felonies; (7) equal health benefits; (8) prohibition
of pension funding holidays; (9) final compensation for local elective or
appointive office; and (10) improved industrial disability retirement
benefits.

• Some of these pension reform measures will apply to all
employees, most will only apply to what PEPRA refers to as
new members.
• The term "new member" means: (1) an individual who has
never been a member of any public retirement system prior to
January 1, 2013; (2) an individual who was a member of any
other public retirement system prior to January 1, 2013, but
was not subject to reciprocity; or (3) an individual who was an
active member in a retirement system who returns to active
membership in that same system with a new employer after a
more than six month break in service.
• What to think about immediately:
New Formulas take effect January 1 even if in the middle of an MOU
Cost Sharing Can Be Deferred Pursuant to an MOU

•Pension reform package clean-up introduced-
SB 13.
•Urgency bill-will become effective
immediately.
•Likely bill will be used to address several areas
of clean-up.
•For detailed analysis and information on
PEPRA and to keep up-to-date on proposed
clean-up legislation, visit bbklaw.com

SB 1021
• Further Amends Rules on the Employment of CalPERS
Retirees.
• Salary must be reflected as an hourly rate which is no higher
than the maximum monthly base salary paid to employees
performing similar duties, divided by 173.333.
• Retirees may not receive any benefits or compensation in lieu
of benefits.
• Agencies that appoint a retiree pursuant to Section 21221(h)
to fill a vacant position no longer have the option of
requesting an extension to the 960 hour limitation. However,
the 12 month term limit on the appointment was deleted.

AB 1606
• Amends provisions of AB 646 (2012) regarding
MMBA fact-finding procedures during
impasse:
Provides mediation is not a prerequisite for fact-
finding under MMBA.
Procedural right of employee organization to
request fact-finding cannot be expressly or
voluntarily waived.

WAGE & HOUR CASES
PRESENTED BY
Joseph Ortiz
Partner

MEAL & REST PERIOD ISSUES

Brinker v. Superior Court (2012) 53 Cal.4th 1004
EMPLOYERS MUST PROVIDE OFF-DUTY MEAL PERIODS, BUT
THEY ARE NOT OBLIGATED TO ENSURE THEM
• Employees, including cooks, stewards, buspersons, wait staff,
host staff, and other hourly employees against defendants
restaurant owners on the basis of failing to provide meal and
rest periods through the workday, or premium pay in lieu of
breaks.
• Held:
The California Supreme Court determined that the employer is not
required to ensure employees cease all work during meal periods.
Instead, under state law an employer must provide its employees an
uninterrupted 30-minute duty-free period.
Absent a statutorily permissible waiver, a meal period must be afforded
before five hours of work, and a second meal period before ten hours of
work. With regard to rest periods, the Court determined that
employees are entitled to ten minutes of rest for shifts from three and
one-half to six hours in length, and to another ten minutes rest for shifts
from six hours to ten hours in length.

Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487
COURT OF APPEAL AGAIN AFFIRMS ORDER DENYING CERTIFICATION
OF MEAL AND REST PERIOD CLASS POST-BRINKER
• Plaintiff worked at a Chipotle restaurant as an hourly worker. He filed suit against
his employer for failure to provide meal and rest periods to hourly employees.
• The appellate court affirmed the trial court’s decision to deny class certification on
the basis that the individual issues predominated over common issues, and class
treatment was not superior to individual actions. The California Supreme Court
granted review and held pending its decision in Brinker v. Superior Court (2012) 53
Cal.4th 1004, and remanded the case for reconsideration.
• HELD:
The California Supreme Court conclusively resolved the issue, stating that an employer’s
duty with respect to meal breaks under Labor Code section 512(a) and Wage Order No. 5
was an obligation to provide a meal period to its employees. However, the employer was
not obligated to police meal breaks and ensure no work was performed.
The trial court appropriately decided the threshold legal issue as it could not otherwise
assess whether class treatment was warranted. Substantial evidence supported findings
that (1) individual issues did predominate, given that the employer did not have a
universal practice with regard to breaks; (2) time records could be unreliable, given that
employees were paid for breaks, eliminating their incentive to clock in and out;
(3)introducing evidence by the use of a sampling of employee testimony was not
manageable; and (4) there were conflicts of interest among the putative class members.

Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244
CALIFORNIA SUPREME COURT SAYS NO ATTORNEYS’ FEES IN
MEAL AND REST PERIOD ACTIONS
• Plaintiff worked for a contractor, IFP, and filed suit against his employer
alleging that IFP violated a number of wage and hour laws.
• The trial court awarded IFP its attorneys’ fees under Labor Code section
218.5, after Plaintiff dismissed the matter against IFP.
• HELD:
No availability of statutory attorneys’ fees to either party for such claims for
violations of the rest and meal period statute.
An action for meal and rest period compensation under Labor Code section
226.7 is not a claim for which attorneys’ fees can be awarded to a prevailing
employee under Labor Code section 1194.
Labor Code section 218.5 does not authorize a prevailing party, either the
employer or the employee, to recover its attorneys’ fees in an action under
section 226.7 because such an action does not constitute an “action brought for
the nonpayment of wages” within the meaning of section 218.5.

The Use of Statistics to Support
Class Certification

Wal-Mart Stores, Inc. v. Dukes (2011) 131 S.Ct. 2541
SUPREME COURT REINS IN USE OF STATISTICAL DATA
SUPPORTING CLASS CERTIFICATION
• Gender discrimination class action claim asserting that
corporate culture discriminates against women.
• No corporate-wide explicit policy on promotion; rather, local
management choices.
• Plaintiffs use sociological and statistical analyses to support
class certification.
• HOLDING: Class certification was not appropriate. No
“commonality” in the various cases & statistics were not reliable
indicators of disparate promotion practices.

Duran v. U.S. Bank N.A. (2012) 203 Cal.App.4th 212
**Review granted 2012 Cal. LEXIS 4635
CALIFORNIA COURTS CONTINUE TO WRESTLE WITH
USE OF STATISTICAL ANALYSIS
• “Business banking officers” file class action asserting
misclassification and overtime violations.
• Court allowed class action to proceed based on a statistical
sampling to smooth over issues concerning commonality,
predominance, and individual proof. After trial, employer
appeals.
• HOLDING: In light of Dukes such use of statistical sampling is
“fatally flawed.”

The Enforceability of Class Action
Waivers in Arbitration Agreements

AT&T Mobility v. Concepcion (2011) 131 S.Ct. 1740
SUPREME COURT PREEMPTS CALIFORNIA
RESTRICTIONS ON CLASS ACTION WAIVERS
• Consumers file class action against AT&T alleging that supposed
“free cell phone” with service plan was fraudulent because of
tax charge.
• Service plan had an arbitration agreement and, notably, a class
action waiver. The trial court held that under Discover Bank and
Gentry, the class action waiver was unenforceable via the
contract of adhesion. The Supreme Court eventually granted
review.
• HOLDING: The Federal Arbitration Act (FAA) was enacted to
counter judicial hostility to arbitration clauses and to make such
clauses “valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract.”

DR Horton, Inc. (Jan. 3, 2012) 357 NLRB No. 184
**Currently under review by the 5th Circuit
THE NLRB ASSERTS THAT CONCEPCION IS NOT
RELEVANT IN EMPLOYMENT SETTING
• At issue was DR Horton’s practice of requiring employees to sign
arbitration agreements and class action waivers as a condition of
employment.
• NLRB ruled that the Concepcion ruling did not mitigate the
statutory requirements of the NLRA in the employment setting.
• HOLDING: Class action waivers violate Section 7 rights to engage in
concerted activity in the NLRA.

Brown v. Ralph’s Grocery (2011) 197 Cal.App.4th 489
STATE PAGA CLAIMS ARE NOT SUBJECT TO
CONCEPCION’S PREEMPTION ANALYSIS
• Cal.’s Private Attorney General Act (PAGA) gives plaintiffs the
right to bring class-like representative wage claims that are
normally available only to the attorney general’s office.
Resulting penalties are split between the plaintiffs (25%) and
the State (75%).
• HOLDING: Concepcion does not apply to representative
actions under PAGA. Concepcion “does not purport to deal
with the FAA’s possible preemption of contractual efforts to
eliminate representative private attorney general actions to
enforce the Labor Code.”

Iskanian v. CLS Transp. L.A. (2012) 206 Cal.App.4th 949
**Review granted 2012 Cal. LEXIS 9288
• Driver for a limo company signed an arbitration agreement that
contained a class action waiver. Initially, after the state rulings
in 2007 under Gentry, the parties agreed to litigate.
• Following Concepcion the employer renewed its motion for
individual arbitration. The trial court granted.
• HOLDING: The Court of Appeal affirmed citing Concepcion.

Classification/ Other Wage Issues

Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580
INSURANCE AGENT PROPERLY CLASSIFIED
AS INDEPENDENT CONTRACTOR
• Former insurance agent was classified as an independent
contractor
• She sued to challenge wage and hour issues (failure to pay
wages and overtime)
• Court held that she was properly classified as an “independent
contractor” – based on control
Agent controlled whom she solicited as well as the time, place, and manner in which
she solicited
Agent not required to use Company resources (training, office space, & customer
leads)
Agent was not exclusive – she worked for other insurance companies, too
At-will termination provision not determinative where parties showed they thought
they had an independent contractor relationship

Harris v. Superior Court, 2012 Cal.App. LEXIS 830
(July 23, 2012)
INSURANCE CLAIMS ADJUSTERS
ARE NOT ADMINISTRATIVELY EXEMPT
• Liberty Mutual classified their claims adjusters as “exempt”
under the administrative exemption
• Class action filed challenging exempt status
• HELD: claims adjusters not exempt
Applied the “production/administrative” dichotomy
Deviates from prior opinions holding adjusters can be exempt
Limits the application of the administrative exemption to those who
“set management policy” or perform “general operations”
• NOTE: Opinion de-published by California Supreme Court –
questionable legal precedent but still insightful for employers

Muldrow v. Surrex Solutions Corp. (2012) 208 Cal.App.4th 1318
COMMISSIONED SALES EMPLOYEE EXEMPTION APPLIED TO
SALES-RELATED ACTIVITIES
• Employment recruiters challenged their exempt status as
commissioned sales employees
• Recruiters claimed they did not primarily engage in “sales” and
weren’t compensated based on “price”
• HELD:
“Sales-related activities” should be viewed more broadly
than the time involved in the sale itself
Recruiters negotiated the client’s rates and billing structure,
so they were compensated based on “price”

Cash v. Winn (2012) 205 Cal.App.4th 1285
PERSONAL ATTENDANT EXEMPTION APPLIED EVEN WHERE
MINIMAL MEDICAL-RELATED TASKS ARE PERFORMED
• Employee worked as an in-home personal attendant for
elderly client. She was treated as exempt under the “personal
attendant” exemption
• She challenged the exemption because she performed some
daily medical-related tasks, including adjusting oxygen, testing
blood sugar, providing medications
• HELD: Personal attendant exemption still applies – even if
some minimal medical-related tasks are performed. Court
evaluated purpose of the exemption

Bell v. H.F. Cox, Inc. (2012) 209 Cal.App.4th 62
EMPLOYERS CAN PAY A “SPECIAL” VACATION RATE
TO CURRENT EMPLOYEES
• Truck drivers sued for various wage and hour violations,
including failure to pay vacation
• Employer paid employees a flat rate of $500 for a week of
vacation (instead of the truck driver’s “regular rate”)
• HOLDING:
Employers can pay a special “vacation” rate to current
employees, as long as it’s in the policy or contract
Court specified that, on termination, employers must pay
employees at the then-current “regular rate” for any
accrued, unused time

Sciborski v. Pacific Bell Directory (2012) 208 Cal.App.4th 1152
EMPLOYER CANNOT RECOUP PAID COMMISSION OR SHIFT
COST OF MISTAKE TO EMPLOYEE
• A sales representative for Pacific Bell Directory made a sale
and earned $36,000 in commission
• Pac Bell then realized that the account had been assigned to
the sales representative in error
• Pac Bell then started making deductions from subsequent
commissions to recoup the $36,000
• HOLDING: The sales rep was entitled to the commission.
The commission plan did not specify that clerical errors will preclude an
employee from earning commissions
Employer cannot shift responsibility for an internal mistake to the
employee
Commissions can be conditioned only on various items related to the
sale - a “final” sale (i.e., no returns for specified time), customer
payment, and providing follow-up activities

Ruiz v. Affinity Logistics Corp. (2012) 667 F.3d 1318
EMPLOYER CANNOT IMPOSE A
REMOTE CHOICE OF LAW PROVISION
• Drivers were provided with written agreements upon being
hired
• These agreements had two important provisions: (1) drivers
were independent contractors; and (2) Georgia law would
apply to any dispute
• Drivers challenged independent contractor status
• HELD: Georgia choice of law provision could not be enforced
It undermined California law protecting employees
California law is significantly more protective than Georgia law
California had substantial connection to the matter because the work
was to be performed in California, the contract was entered into in
California, and the drivers lived in California

Sullivan v. Oracle Corporation (9th Cir. 2011) 662 F.3d 2165
EMPLOYERS MUST PAY NONRESIDENT EMPLOYEES OVERTIME FOR
WORK IN CALIFORNIA
• Three Oracle Corporation employees, who worked as instructors,
teaching customers how to use the company’s products, filed suit
against the employer on the basis of unpaid overtime wages earned
when working in California, as required by the Fair Labor Standards
Act
• The employees were residents of Arizona and Colorado, and
primarily worked within their home states; however, occasionally
the employees traveled to California to conduct trainings. Oracle
Corporation’s headquarters is located in California
• HELD:
The California Supreme Court held that California’s overtime provisions apply to
all employees working in California for a full day or week for California-based
employers, regardless of their residence or principal place of work.
The Court also noted that excluding nonresidents from overtime laws
protection would tend to defeat the purpose by encouraging employers to
import unprotected works from other states.

Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556
EMPLOYEES NOT ENTITLED TO “REPORTING TIME PAY” OR
ADDITIONAL COMPENSATION FOR “SPLIT SHIFTS” IN ALEMAN
• In an underlying wage and hours class action, employees who worked
at AirTouch stores and mall kiosks alleged violations concerning two
separate provisions of the Industrial Welfare Commission (“IWC”)
Wage Order No. 4-2001, on the basis that defendants: (1) failed to
pay reporting time pay for days when they were required to report
work just to attend work-related meetings; and (2) failed to pay shift
compensation for days on which they attended a meeting in the
morning and worked another shift later the same day
• HELD:
The appellate court concluded that the plaintiffs were not entitled to receive
“reporting time pay” for attending meetings at work, because all of the meeting
were scheduled and they worked at least half the scheduled time.
Additionally, the defendant did not owe the plaintiffs additional compensation
for working “split shifts” because on each occasion the employee worked a split
shift he or she earned more than the minimum amount required by the wage
order.

See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889
ROUNDING POLICY IS PERMISSIBLE IF FAIR AND
NEUTRAL ON ITS FACE
• Plaintiff was a non-hourly exempt employee from 1993 to 2010. Plaintiff filed a
wage and hour class action seeking recovery of unpaid wages, and challenged her
former employer’s rounding policy. See’s Candy uses a timekeeping software
system, known as Kronos, to record its employee work hours
• During relevant times, See’s Candy calculated an employee’s pay based on his or
her Kronos punch times, subject to adjustment under two policies: (1) the nearest-
tenth rounding policy; and (2) the grace period policy. For example, if an employee
clocked in at 7:58 a.m., the system rounds the time to 8:00 a.m., and if the
employee clocked in at 8:02 a.m., the system rounds down the entry to 8:00 a.m.
• HELD:
The determined that time entry rounding is permissible under California law on the basis
that the employer rounding policy is fair and neutral on its face, and it is used in such a
manner that will not result, over a period of time, in failure to compensate the employees
properly for all the time they have actually worked.
See’s Candy presented evidence that across all of its employees the rounding policy
actually resulted in a total gain of 2,749 hours for the class of employees involved in the
litigation. Accordingly, the court held that there was clear evidence establishing the effect
on the total time paid to employees did not result in a loss to the employees, as the
rounding rule was both mathematically and empirically unbiased.

DISABILITY CASES
PRESENTED BY
Arlene Prater
Partner

REGULAR ATTENDANCE MAY BE
AN ESSENTIAL FUNCTION OF WORK
(Samper v. Providence St. Vincent (9th Cir. 2012) 675 F.3d 1233)
• Attendance policy allowed five unplanned absences.
• Plaintiff, a neonatal nurse, sought accommodation to allow an
unspecified number of unplanned absences.
• Court:
Regular and predictable attendance is not a per se essential
function of all jobs.
Employer has the burden of establishing which job functions are
essential.
Employer proved attendance on-site was essential by
demonstrating job required teamwork, face-to-face interactions
with patients and working with medical equipment.

MARIJUANA FOR MEDICAL
USE IS NOT PROTECTED BY THE ADA
(James v. City of Costa Mesa (9th Cir. 2012) 684 F.3d 825)
• Plaintiffs were severely disabled individuals who had
prescriptions for medical marijuana to alleviate chronic pain.
• The Cities of Costa Mesa and Lake Forest enacted ordinances
to close marijuana dispensing facilities operating within their
boundaries.
• Plaintiffs brought suit against the Cities, alleging that the
anticipated closures of the marijuana dispensaries would
violate Title II of the ADA.
• Court: Plaintiffs’ medical marijuana use was not protected by
the ADA because the exception to the exclusion for illegal
drugs use requires that the drug use must both be “under
supervision” and “be authorized by . . . federal law.”

EMPLOYEE’S INABILITY TO WORK OVERTIME WAS NOT A
SUBSTANTIAL LIMITATION ON MAJOR LIFE ACTIVITIES
(Boitnott v. Corning, Inc. (4th Cir. 2012) 669 F.3d 172)
• Plaintiff sued his employer under the ADA claiming the
inability to work more than eight hours per day and rotate
day/night shifts as a result of his physical impairments, was a
disability that Employer failed to reasonably accommodate.
• Court:
An employee under the ADA is not “substantially” limited if he or
she can handle a forty hour work week but is incapable of
performing overtime due to an impairment.
The determination of whether an employee capable of working
40 hours in a week but unable to work overtime is disabled
necessitated an individualized inquiry and that in certain
circumstances, the employee may be disabled.
• However, FEHA only requires a disability that “limits” not
“substantially limits.”

EMPLOYERS NEED NOT MAKE REASONABLE
ACCOMMODATIONS FOR NON-DISABLED EMPLOYEE
TO CARE FOR DISABLED PERSON
(Magnus v. St. Mark United Methodist Church (7th Cir. 2012) 688 F.3d 331)
• Plaintiff refused to work weekend days because she cared for
her disabled daughter on the weekends. After Plaintiff arrived
an hour late to work because of a medical situation with her
disabled daughter she was terminated.
• Court:
An employer can lawfully fire a non-disabled employee because her
responsibilities caring for a disabled child preclude her from working
weekends.
Employer was not required to provide Plaintiff with an
accommodation to enable her to perform her job to Employer’s
satisfaction and Employee was not entitled to an accommodated
schedule.

ABILITY TO WORK ROTATING SHIFT MAY
BE AN ESSENTIAL FUNCTION OF THE JOB
(Kallail v. Alliant Energy Corporate Services, Inc. (8th Cir. 2012) 691 F.3d 925)
• To provide coverage twenty-four hours per day, seven days
per week, Employer required Resource Coordinators to work a
rotating schedule. Plaintiff had medical conditions that were
exacerbated by working a rotating shift.
• Plaintiff sued alleging disability discrimination in violation of
the ADA because Employer refused to accept her proposal to
work a regular eight hour day shift as a Resources Coordinator.
• Court: “[R]otating shift is essential to the Resource
Coordinator position, and lists it as a requirement on the
written job description for the position.”

MEDICAL LEAVES

EMPLOYER TERMINATING EMPLOYEE BECAUSE OF AN HONEST
BELIEF THAT EMPLOYEE COMMITTED DISABILITY FRAUD IN TAKING
FMLA LEAVE IS NOT PRETEXT FOR FMLA RETALIATION
(Seeger v. Cincinnati Bell Telephone Co. (6th Cir. 2012) 681 F.3d 274)
• Plaintiff took FMLA leave and concurrent paid leave under
Employer’s own disability plan to treat and recover from a herniated
disc in his back.
• Employer terminated Plaintiff for disability fraud after several of
Plaintiff’s co-workers saw him at an Oktoberfest during his FMLA
leave period.
• Court:
Essence of Plaintiff’s claim was retaliation, not interference, with his substantive
FMLA rights because he had received all of the FMLA leave to which he was
entitled and did not deny him reinstatement.
Employer articulated a legitimate, nondiscriminatory reason for terminating
Plaintiff — disability fraud.
Plaintiff failed to refute Employer’s evidence that it had an “honest belief” in its
nondiscriminatory basis for Plaintiff’s termination because Employer made a
reasonably informed and considered decision before it terminated Plaintiff.

FMLA LEAVE REQUIRES AN EMPLOYER TO ADJUST
PERFORMANCE STANDARDS
(Pagel v. Tin Inc. (7th Cir. 2012) 695 F.3d 622)
• Plaintiff worked as the equivalent to an outside sales person
and took two leaves of absence due to a serious medical
condition. Employer thereafter terminated Plaintiff for poor
performance, including not meeting sales expectations.
• Plaintiff brought suit alleging Employer violated FMLA by
interfering with his right to take leave and retaliating against
him for exercising that right.
• Court:
FMLA does not require an employer to adjust its performance standards
for the time an employee is actually on the job, but it can require that
performance standards be adjusted to avoid penalizing an employee for
being absent during FMLA-protected leave.

THERE IS NO HONEST BELIEF DEFENSE FOR CFRA VIOLATIONS
(Richey v. AutoNation, Inc. (November 23, 2012) 2012 Cal.App.LEXIS 1177
[unpublished decision])
• Plaintiff was terminated from his job four weeks before the
expiration of his approved medical leave under CFRA because
his employer believed Plaintiff was misusing his leave by
working part-time in a restaurant he owned.
• Court:
Employer cannot, in terminating or failing to reinstate an
employee who had been granted leave under the CFRA, defend a
lawsuit based on its honest belief the employee was abusing the
leave.
Employer bears burden of “adequately investigating and
developing sufficient facts to establish the employee had actually
engaged in misconduct warranting dismissal.”

Discrimination, Harassment and
Retaliation
PRESENTED BY
Cynthia Germano
Partner

Harris v. County of Orange
• Class action by retired county workers arising out of
changes to retiree medical benefits; alleged age
discrimination
• Only one plaintiff had filed DFEH complaint prior to
lawsuit
• HOLDING: similarly-situated plaintiff class can “piggyback”
on one plaintiff’s DFEH complaint (thereby satisfying
exhaustion requirement)

Hunt v. County of Orange
• Lt. Hunt assigned as “chief” for San Clemente as part of
Orange County Sheriff’s contract for police services
• Hunt unsuccessfully challenged Sheriff Corona in election;
later demoted for disloyalty in campaign statements
• HOLDING: Hunt not a “policymaker,” so campaign speech
protected by 1st Amendment

Schechner v. KPIX-TV
• Laid off TV reporters (ages 66 and 48) presented
statistical evidence of age discrimination by TV station,
but did consider station’s business reasons for layoff
• HOLDING: preemptively accounting for employer’s
reasons not required for prima facie case using statistical
evidence
• In any event, plaintiffs failed to show employer’s reasons
were pretextual

Dahlia v. Rodriguez
• Dahlia reported alleged misconduct by colleagues
(abusive interrogation techniques)
• Dahlia was placed on administrative leave; sued for 1st
Amendment retaliation and for whistleblower claims
• HOLDING: California police officers required to report acts
of corruption as part of job, so therefore not protected
speech

Rehmani v. Superior Court
• Terminated employee Mustafa Rehmani claims that he was
harassed by 3 coworkers from India because of his Pakistani
nationality and Muslim faith and that his supervisor failed to
take remedial action when he reported the conduct
• Employer asked court to dismiss lawsuit before trial because
Rehmani never actually complained about harassment or
discrimination, the coworkers were not managerial
employees, and the employer had conducted an investigation
of a coworker prank

Rehmani v. Superior Court
• HOLDING: Even though case might seem weak, because
“evidence in the aggregate” could suggest that conduct of
coworkers was motivated by Rehmani’s national origin
and religion and that the employer did not take sufficient
steps to respond to Rehmani’s complaints, Rehmani’s
claims should be decided at trial by trier of fact

C.A., a Minor v. William S. Hart Union
High School District
• A former student sued his public high school guidance
counselor and the school district for damages arising out of
sexual harassment and abuse by the counselor.
• He alleged, in part, that the school district was liable for
negligent hiring, retention and supervision of the counselor.
He claimed that the school district knew or should have known
that the counselor would commit wrongful sexual acts with
minors based on her past sexual abuse of minors and her
propensity and disposition to engage in such abuse.

C.A., a Minor v. William S. Hart Union
High School District
• The school district argued that a public entity could not be
liable for negligent supervision of employees.
• However, given the special relationship between public school
personnel and students, the school district’s administrative
employees had a duty of reasonable care to protect students
from foreseeable dangers.
• HOLDING: A public school district may be vicariously liable for
the negligence of administrators in hiring, supervising and
retaining a school employee who sexually harasses and abuses
a student.

Touchstone Television Productions v.
Superior Court
• Touchstone hired actress Nicollette Sheridan to appear in the
first season of the television series Desperate Housewives.
• The agreement was for the series’ initial season but it gave
Touchstone the option to renew each year. Sheridan alleged
that during filming in season five, the creator, Marc Cherry, hit
her, and not long thereafter Touchstone decided not to
exercise its option to renew. Sheridan filed suit, claiming she
was wrongfully terminated.

Touchstone Television Productions v.
Superior Court
• HOLDING: Sheridan could not sue for wrongful termination in
violation of public policy based upon Touchstone’s refusal to
renew her employment contract because she was not fired,
discharged or terminated.
• No cause of action exists for the tortious nonrenewal of an
employment contract in violation of public policy.
• However, Sheridan could amend her complaint to allege a
retaliation cause of action if she was discriminated against
because of complaints about unsafe work conditions.

• Pending before California Supreme Court
• Bus driver for the City of Santa Monica told her
supervisor that she was pregnant before she was
terminated, but while she was still on probation as a
new hire
• After she is terminated, she sues the City, alleging she
was terminated because she was pregnant. The City
alleges she was terminated for poor performance.
Harris v. City of Santa Monica

• Issue before the Supreme Court is the scope of permissible
jury instructions
• The trial court refused the City’s request to give a “mixed-
motive” instruction
• In a mixed-motive case, to establish termination “because of”
a protected classification, the employee has the initial burden
of proving that discrimination was “a” motivating factor for the
termination, even if other factors may have contributed. The
employer can then defeat liability by demonstrating that there
were legitimate, non-discriminatory reasons for the
termination

• The trial court refused City’s request, and instead instructed the jury
that the City was liable for discrimination if the employee’s
pregnancy was a motivating factor for the termination, even if other
factors may have contributed to the decision
• The jury found in favor of the employee
• The City appealed, arguing that because the mixed-motive
instruction was not given, the jury was not allowed to determine
whether the employee could have been terminated for legitimate
reasons, even though the City knew the employee was pregnant at
the time of the termination

NLRB Decisions on Social Networking
and Investigations
PRESENTED BY
Alison Alpert, Esq.
Partner
Joseph Sanchez, Esq.
Partner

Recent NLRB Cases Involving Social
Networking
Is it protected activity?
• AMR
• JT’s Porch Saloon and Eatery
• Wal-Mart
• Knauz BMW
• Costco

Protected Speech Under Labor Law
and Online Social Networking
• Is the online content part of a group effort by
employees to improve working conditions?
• Individual personal gripes are not protected
• Complaints to non-coworkers not protected
• Social networking policies may not be so overly
broad as to restrict union activity

NLRB Limits on Talking Given During
Investigations
•Banner Health System
Determined Could Not Tell Employees Not To
Discuss the Investigation
Could Not Discipline the Employee For Failure to
Follow the Admonition Not To Discuss Investigation

Investigations
•What Should You Do Now?
Evaluate the Harm if the Employee Speaks to
Others
Do Witnesses Need Protection
Will Evidence be Destroyed
Will Testimony Be Fabricated
Will there be a Cover-up

Thank you for attending.
Alison Alpert
Alison.Apert@bbklaw.com
Roger Crawford
Roger.Crawford@bbklaw.com
Cynthia Germano
Cynthia.Germano@bbklaw.com
www.bbklaw.com
Joseph.Ortiz
Joseph.Ortiz@bbklaw.com
Arlene Prater
Arlene.Prater@bbklaw.com
Joseph Sanchez
Joseph.Sanchez@bbklaw.com

2013 Best Best & Krieger Labor Employment Update

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