Wednesday, October 31, 2012

Union Representative May Not Challange Union's Decision To Fire Him After he Lied About HIs Legal Background While Applying for Job

September 28, 2012

Batarse v. Service Employees International Union Local 1000, California Courts of Appeal-5th District, No. F062063, Sept. 27, 2012

     Ray Batarse served as a labor Relations Representative for the Service Employees International Union Local 1000 (SEIU) from March 17, 2008 until his termination on Aug. 8, 2008. After being terminated, he sued the SEUI, alleging race discrimination. In the SEIU'S motion for summary judgment, it asserted that Batarse was a probationary, at will employee, who was fired for making misrepresentations about his legal background in his employment application and during interviews. batarse opposed the SEIU's motion, but did not include a separate statement of disputed, and undisputed facts in his opposition motion. Instead, his reply showed at most that a co-worker was "mean and unruly." The trial court granted SEIU's motion, given that Batarse's motion was defective. 
    Affirmed. In an action asserting claims of race discrimination, the plaintiff bears the initial burden of proving discrimination occurred. The employer may do so by showing it had a legitimate business reason, unrelated to race, for taking its employment action. Next, the plaintiff has the burden of rebutting the employer's showing by pointing to evidence that raises a rational inference that intentional discrimination or retaliation occurred. Here, the SEIU's motion presented evidence that it had legitimate business reasons for terminating Batarse. However, Batarse's response did not present his own additional facts attempting to show that SEIU'S asserted legitimate business reason was actually a pretext for discrimination. Further, his assertion that an SEIU's employee was "mean and unruly" was insufficient to establish any discriminatory animus. Thus, this court determined the trial court's decision was correct.
Opinion by Justice Hill   

Appeals Court Restores Employer's Affirmative Defense of Rounding Off in Wage and Hour Class Action

October 29, 2012

See?s Candy Shops, Inc. v. Superior Court (Silva) - filed October 29, 2012, Fourth District, Div. One
     Cite as D060710

Where plaintiff sued employer for failing to pay all wages earned, and employer pled as an affirmative defense that any shortfall in plaintiff?s pay was a result of a lawful practice of rounding "punch-in" and "punch-out" times to the nearest one-tenth of an hour for administrative convenience, trial court erred in granting summary adjudication to plaintiff on that defense. Assuming a rounding-over-time policy is neutral, both facially and as applied, the practice is proper under California law because its net effect is to permit employers to efficiently calculate hours worked without imposing any burden on employees. 

Monday, October 29, 2012

Employer that prevailed on reporting time and split shift pay claims filed by its employees is entitled to attorney fees on reporting claim

September 24, 2012

Employer that prevailed on reporting time and split shift pay claims filed by its employees is entitled to attorney fees on reporting claim

Aleman v. Airtouch Cellular, California Courts of Appeal-2nd District, No. B231142, Sept. 20, 2012

    Two Former employees of AirTouch Cellular, Daniel Krofta and Mary Katz, sued Airtouch alleging that it failed to pay them "reporting time pay" and "split shift" compensation for attending mandatory store meetings. The trial court granted AirTouch summary judgement. AirTouch then moved to recover attorney fees under Labor Code Section 218.5, which allows prevailing defendant to recover reasonable fees in action alleging nonpayment of wages. Krfota and Katz conteded that the actions were covered by Section 1194, which provides that only plaintiffs in such actions may recover fees. The trail court awarded AirTouch $146,000 in fees against Krofta and $140,000 in fees against Katz. Later, this court reversed the trail court's attorney fee awards, finding that both claims were subjection to Section 1194. However, the California Supreme Court sent this case back to this court in light of its holding in Kirby v. Immos Fire Protection Inc. 
   Reversed in part. In Kirby, the California Supreme Court noted that Section 1194 applies to claims for unpaid minimum wages over overtime compensation. Thus, to fall under Section 1194, a claim must seek unpaid minimum wages or overtime compensation, as those terms are generally understood. Here, this court reconsidered its original ruling, which held that both claims were subject to Section 1194. In doing so, it explained that the split shift claim is subject to Section 1194, given that the claim seeks to recover unpaid minimum wage compensation. However, it also explained that a reporting time claim is not subject to Section 1194, and is instead subjection to Section 218.5, because it is brought to recover unpaid wages. Given that a prevailing defendant may recover attorney fees Section 218.5, this court ruled that the trial court must distribute the fees incurred by AirTouch in defending the reporting time claim.
Opinion by Justice Boren      

Wage-related claims may bot be pursued by class of employees due to excessive number of questions regarding reasons for taking breaks

Friday October 5, 2012

Wage-related claims may bot be pursued by class of employees due to excessive number of questions regarding reasons for taking breaks

Tien V. Tenet Healthcare Crop., California Courts of Appeal-2nd District, No. B21433, Oct. 4, 2012 

 In 2006, Kevin Tien, Carole McDonough, and Julia Strain filed a class action against their employer, Tenet Healthcare Corp. The employees alleged Tenet had not paid them additional wages for missed meal periods and rest breaks. In addition, they sought certifications of classes of employees who missed meal periods and employees who missed rest breaks. The trail court certified the missed meal period class, but did not do so for the rest break class. While the case was pending, the Second District held in Brinkley v. Public Storage Inc. that an employer must offer meal periods, but need not ensure the employee takes the break. Due to Brinkley, the trial court granted Tenet's motion to reconsider the certification order, and then denied class certification for all classes. Later, the California Supreme Court decided Brinker Restaurant Corp v. Superior Court, which agreed with Brinkley, and asked the trail court to reconsider its decision in light of Brinker. Affirmed. Under Brinker, the California Supreme Court conclusively established that California only requires an employer to make a meal or rest period available, not that employees must eat their meals or take breaks. With respect to class certification, a court may not certify a class when individual questions predominate over common questions. Here, the trial court found that individual questions regarding particular employees' actions taken in relation to meal periods predominated over any common questions among class members. This court agreed that the reasons any particular employee might not take a meal period would be more likely to predominate. Also, Tenet's employees did not record their breaks and thus, the reasons employees might have declined to take their breaks were predominantly individualized questions. Thus, the trial court's rulings was correct.

Opinion by Justice Rubin 

Wednesday, October 24, 2012

New California Law Protects Employees' and Job Applicants' Social Media Password

New California Law Protects Employees' and Job Applicants' Social Media Password

October 24, 2012

California’s New Law – A.B. 1844
A.B. 1844 prohibits an employer from requiring or requesting an employee or applicant for employment to do any of the following: (1) disclose a username or password for the purpose of accessing personal social media; (2) access personal social media in the presence of the employer; or (3) divulge any personal social media information, except as provided for in the bill. The law clarifies that employers’ existing rights and obligations to request personal social media information remains intact if that information is reasonably believed to be relevant to an investigation of allegations of employee misconduct or an employee’s violation of applicable laws and regulations, and only if the social media is used solely for purposes of that investigation or a related proceeding. A.B. 1844 does allow employers to require or request a username, password, or other method of accessing an employer-issued electronic device. The law also prohibits any discharge, discipline, threat to discharge or discipline, or other retaliation against an employee who fails to provide information requested in violation of the law.

For More information contact us at


Friday, October 19, 2012

Appelate Court approves Class Certification in Independent Contractor Classification Case

October 18, 2012

Appellate Court Approves Class Certification in Independent Contractor Classification Case

 Ayala v. Antelope Valley Newspapers, Inc. - filed September 19, 2012, publication ordered October 17, 2012, Second District, Div. Four. Cite as B235484 
Trial court’s finding that there were numerous variations in how members of proposed class of newspaper carriers performed their jobs did not preclude certification of the class in action by carriers who alleged they were misclassified as independent contractors. Because all of the carriers performed the same job under virtually identical contracts, those variations simply constituted common evidence that tends to show defendant employer’s lack of control over certain aspects of the carriers’ work. Where variations in how jobs were performed did not preclude class certification--and almost all secondary factors could also be established for the most part through common proof, since almost all of those factors related to the type of work involved, which was common to the class--trial court erred in finding that the independent contractor-employee issue was not amenable to class treatment. Trial court finding that plaintiffs’ claims of overtime and meal/rest period violations were not amenable to class treatment because of wide variation in the amount of time each carrier spent performing the required work and because of their varied use of helpers or substitutes was not error.

Standard of Causation in a FEHA Case is Whether the Protected Characteristics was a "Motivating Factor" in the Adverse Employment Action Rather than a "But For" Standard

October 18. 2012

Standard of Causation in a FEHA Case is Whether the Protected Characteristic was a "Motivating Factor" in the Adverse Employee Action Rather than a "But For" Standard

Alamo v. Practice Management Information Corporation - filed September 24, 2012, publication ordered October 18, 2012, Second District, Div. Seven
     Cite as B230909

Standard of causation in a job discrimination case under the Fair Employment and Housing Act is standard set forth in CACI Nos. 2430, 2500, 2505, 2507, and 2527--whether the protected characteristic was a motivating factor in the adverse employment action rather than a "but for" standard. Assuming that a "mixed motive" is a defense to a FEHA claim, trial court did not err in refusing to instruct on that defense where the only reasonable conclusions that could be derived from the evidence were that plaintiff was terminated solely due to pregnancy or that she was terminated solely for permissible reasons. Lack of specificity on verdict form as to whether jury found for plaintiff on her FEHA claim or her claim for termination in violation of public policy did not require reversal of FEHA attorney fee award, where defendant invited error by agreeing to a general verdict and because the common law claim was derivative of the statutory claim.

No Implied-in-fact Agreement to Arbitrate

October 18, 2012

No Implied-in-fact Agreement to Arbitrate

Gorlach v. The Sports Club Company - filed October 16, 2012, Second District, Div. Four Cite as B233672

Plaintiff in employment dispute, who was tasked with obtaining signatures of all employees at her location on arbitration agreements but never signed one herself, was not equitably estopped from denying she agreed to arbitrate. Plaintiff did not, by remaining in defendant’s employ after learning that signing arbitration agreement was a condition of employment, enter into an implied-in-fact agreement to arbitrate

Wednesday, October 17, 2012

Union employees may not receive slary increase on top of increase ordered by court because Legislature did not explicitly approve salary ranges

October 12, 2012

Union employees may not receive salary increase on top of increase ordered by court because Legislature did not explicitly approve salary ranges.
California Dept. of Human Resources v. Service Employees International Union Local 1000, California Courts of Appeal-3rd District, No. C066531, Oct. 12, 2012

     In 2005, the federal court in Brown v. Plata ordered that compensation be increased for some California Dept. of Corrections and Rehabilitation (CDCR) employees. Meanwhile, the Dept. of Personnel Administration (DPA) and Service Employees International Union, Local 1000 (Union) were negotiating new memoranda of understanding (MOU). They ultimately agreed on new MOUs, which increased the salary ranges for some Union employees. the MOUs were approved by the Legislature and became effective in September 2006. However, in Oct., the Plata court ordered that those salary ranges be increased by an amount exceeding the MOUs. The DPA declined to apply the MOUS increase on top of the Plata raises. Thus, the Union filed a grievance, arguing that the MOU increases had to be calculated on top of the Plata raises. An arbitrator agreed with the Union, and the trial court confirmed the arbitrator's decision.
     Reversed in part. While this court found that the arbitrator correctly interpreted the MOUs, it nonetheless found that salary increases had to be approved by the Legislature to be effective. Here, the Legislature was advised that the Plata order could impact the ultimate outcome of its decision to approve the MOUs. However, the Legislature's awareness of an ambiguity did not equate to an approval of benefits in excess of those explicitly presented to and approved by the Legislature. The Legislature did not expressly approve of salary ranges above the amounts stated in the MOUs. Thus, the arbitrator's award violated public policy because it mandated a fiscal result that was not explicitly approved by the Legislature. Thus, the judgment confirming the arbitration was reversed.
Opinion by Justice Duarte


Tuesday, October 2, 2012

NLRB finds Facebook posting that caused salesman’s discharge at Chicago-area BMW dealership was not protected

 NLRB finds Facebook posting that caused salesman’s discharge at Chicago-area BMW dealership was not protected

The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected.

The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.

The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.

In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. “No, that’s not champagne or wine, it’s 8 oz. water,” the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: “OOPS”.

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, “It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.” Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of a “Courtesy” rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.

Dissenting, Member Brian E. Hayes found that the employer’s rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.

Employee cannot sue her employer for wrongful termination based on policy that prohibits firing employees for filing workers' compensation claims.

Thursday, September 27, 2012

Employment Law: Employee cannot sue her employer for wrongful termination based on policy that prohibits firing employees for filing workers' compensation claims.

Dutra V. Mercy Medical Center Mt. Shasta, California Courts of Appeal-3rd District, No. C067169, Sept. 26, 2012

   Michelle Dutra filed a workers' compensation claim after she injured her back while working for Mercy Medical Center Mt. Shasta. Mercy fired Dutra shortly thereafter. Mercy told Dutra in a confidential meeting that it was her firing her for committing check fraud. Dutra sued Mercy for libel per se and wrongful termination in violation of public policy under Labor Code Section 132a, which generally prohibits discharging an employee for filing a workers' compensation claim. The trial court granted summary judgement in favor of Mercy on Dutra's defamation claim. Also, before dismissing her remaining action for wrongful termination, the trial court allowed her to change her complaint, which she declined to do. 
  Affirmed. The policy behind Section 132a is that there should not be discrimination against workers, who are injured during their employment and who file a workers' compensation claim. Here, Dutra claimed that Mercy violated the policy within Section 132a and thus, she argued that she should be allowed to seek recovery. However, a violation of Section 132a cannot form the basis for a claim of wrongful termination in violation of public policy because the statute has specific procedures and limited remedies available. This court explained that allowing Dutra to pursue the claim based on a Section 132a violation would impermissibly give her broader remedies and procedures than were already provided. As such, the trial court properly dismissed Dutra's action. Partial Publication.
Opinion by Justice Nicholson