Wednesday, July 30, 2014

DeYoung v. Commission on Professional Competence of the Hueneme Elementary Schoool District

Where school district administration orally presented charges against teacher to school board in a confidential proceeding, prior to written charges being prepared and provided to teacher--contrary to the Education Code’s requirement that the board, prior to initiating dismissal, consider either verified written charges prepared by the district or written charges formulated by the board itself--this was a procedural error that was neither substantive nor prejudicial and did not render teacher’s dismissal unlawful.
     DeYoung v. Commission on Professional Competence of the Hueneme Elementary Schoool District (Hueneme Elementary School District) - filed July 30, 2014, Second District, Div. Six
     Cite as 2014 S.O.S. 3082

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Wednesday, July 23, 2014

Galen v. Redfin Corporation

Arbitration clause covering disputes "arising out of or related to" the parties’ agreement extended to issue of whether plaintiff was misclassified as an independent contractor, even to the extent that the issue implicated plaintiff’s Labor Code claims. Mutual attorney fee provision did not "shock the conscience" and result in unconscionability. Neither inconvenience nor the additional expense of litigating in the selected forum will support the invalidation of a forum-selection clause. California public policy favors enforcement of such clauses and places the burden on the objecting party to establish that the clause is unreasonable.
     Galen v. Redfin Corporation - filed July 21, 2014, First District, Div. One
     Cite as 2014 S.O.S. 3708

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Friday, July 18, 2014

Rodriguez v. City of Santa Clara

In an independent review of application for disability benefits due to posttraumatic stress disorder, a trial court’s standard of review is not whether the findings are supported by "substantial evidence"; rather, where a matter involves a "fundamental vested right," a reviewing court must independently weigh the evidence and give no deference to the initial factfinder.
     Rodriguez v. City of Santa Clara - filed July 17, 2014, Sixth District

     Cite as 2014 S.O.S. 3668

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Tuesday, July 15, 2014

Peabody v. Time Warner Cable, Inc.

An employer may not attribute commission wages paid in one pay period to other pay periods in order to satisfy California’s compensation requirements.
     Peabody v. Time Warner Cable, Inc. - filed July 14, 2014
     Cite as 2014 S.O.S.3598

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Thursday, July 10, 2014

Avila v. Los Angeles Police Department

Police officer’s claim that the Los Angeles Police Department fired him in retaliation for testifying in a Fair Labor Standards Act lawsuit brought by a fellow officer was not precluded by the LAPD Board of Rights’ recommendation that he be terminated for insubordination in not claiming overtime. District court did not err in declining to give two special jury instructions, and special verdict questions tied to those instructions, stating that an employee who engages in protected activity is not insulated from adverse action for violating workplace rules.

To the extent the city was urging that it would have reached the same decision on terminating the officer in the absence of his testimony in the prior lawsuit, the district court was well within its discretion in refusing to give the instructions because the evidence did not support the same decision defense, nor did it support the city’s argument that the firing was based on the content of the officer’s testimony, and not on the mere fact that he had testified.

District court did not abuse its discretion in awarding attorney’s fees of nearly $600,000, where the court reduced counsel’s requested rate; eliminated administrative, clerical, and unproductive hours; deducted 30 percent of time with vague billing descriptions; and reduced the overall amount by 10 percent to account for time "expended on the failed claims." Court did not abuse its discretion in awarding liquidated damages to compensate plaintiff "for a delay in payment of wages owed" as well as to "provide an incentive for future employees to report wage and hour violations by their employers."

     Avila v. Los Angeles Police Department - filed July 10, 2014

     Cite as 2014 S.O.S. 12-55931

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Lawsuit alleges Wynn Elementary staff bullied girl, 10, for being black

Las Vegas Sun

Wynn Elementary administrators bullied and berated a 10-year-old student out of prejudice for being black, a lawsuit filed in federal court alleges.
The suit, filed July 3 by the girl's mother, Sheena Hathorn, accuses the Clark County School District, Wynn principal Ellen Bordinhao and Superintendent Pat Skorkowsky of civil rights violations, discrimination, and negligent hiring and training of employees. Hathorn seeks a jury trial and at least $50,000 in damages or "an amount adequate to punish the wrongdoers and deter future misconduct."
School district officials declined to comment, citing pending litigation.
The child, who has turned 11 since the alleged abuse began to take place, was first targeted during a school field trip Oct. 31, 2012, when another child accused her of rough play, according to the suit. A woman identified only as Megan — one of four chaperones watching over 60 children on the trip — reportedly asked the other child who pushed her, and the girl pointed in a general direction to the top of a slide where several youngsters had gathered.
Megan allegedly began to scream at Hathorn's daughter, causing her to cry, even though the girl denied pushing another child and there was no way of knowing who had done it, said Hathorn, who was on the playground at the time of the incident.
Hathorn works part time for the Clark County School District as a program assistant, records show.
Days after the incident, Hathorn said she tried reaching out to school district officials to learn more about Megan, but the staff did not know the woman's last name and identified her only as a family friend of a teacher.
Hathorn filed a bullying report and Clark County officials subsequently interviewed her daughter alone during a so-called counseling session, according to the suit.
"Shockingly, when Sheena requested information regarding the unauthorized counseling session, (officials) refused to inform Sheena regarding the session as if (the child) requested the counseling session of her own volition," the suit says. "Most importantly, upon information and belief, that the school refuses to reveal the contents of the session because during that session (the child) made clear she believed she was being yelled (at) and berated because she is African-American, one of the few African-American(s) enrolled at Wynn."
Attorneys Patrick Kang and Erica Loyd, who filed the suit on behalf of Hathorn, called the district's conduct malicious and predatory.
Hathorn's complaint comes less than three months after a pair of families sued the district for allegedly failing to protect their children from chronic taunting by other students. One of the families said their son considered taking his own life because of the bullying.
The district has faced harsh criticism from Clark County parents and the American Civil Liberties Union,which filed the April 29 complaint on behalf of the two families, since a 13-year-old student at White Middle School committed suicide in December and left a farewell note tying her death to bullying.
The earlier lawsuit calls for changes in district policy, unspecified damages and a jury trial.
School District officials have since formed a task force to address bullying issues. The task force reviews district policies and state laws regarding bullying. It recommends policy and legislative changes.
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Wednesday, July 9, 2014

Dilts v. Penske Logistics, LLC

California’s meal and rest break laws, as applied to motor carriers, were not "related to" defendants’ prices, routes, or services, and therefore they were not preempted by the Federal Aviation Administration Authorization Act of 1994.
     Dilts v. Penske Logistics, LLC - filed July 9, 2014

     Cite as 2014 S.O.S. 12-55705

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Tuesday, July 8, 2014

Man gets $100,000 in OSHA whistleblower lawsuit

Man gets $100,000 in OSHA whistleblower lawsuit

Posted: Monday, July 7, 2014 1:37 pm
PITTSBURGH (AP) — A Pittsburgh-area company that operates an industrial park and intermodal terminal has agreed to pay $100,000 to settle a whistleblower suit filed by the federal Occupational Safety and Health Administration. OSHA sued last year on behalf of former employee Andrew Dorsey. Dorsey claimed he was suspended for allegedly damaging a skid loader while plowing snow, so he complained to OSHA about workplace safety at McKees Rocks Industrial Enterprises. That prompted an OSHA inspection and Dorsey was fired a week later. OSHA then sued the company and its president, James Lind. An attorney for Lind and the industrial company did not immediately return a call seeking comment after the settlement was filed in federal court on Monday. The company must also remove disciplinary actions from Dorsey's file and give him a neutral reference for future jobs.



Monday, July 7, 2014

Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros)

Employee who refused his employer's repeated orders to sign a written disciplinary notice because he disputed the notice's factual allegations and thought he was entitled to consult with his union representative first was lawfully terminated for insubordination, but the refusal to sign was not misconduct within the meaning of Labor Code Sec. 1256 but was, at most, a good faith error in judgment that did not disqualify him from unemployment benefits.
     Paratransit, Inc. v. Unemployment Insurance Appeals Board (Medeiros) - filed July 3, 2014

     Cite as 2014 S.O.S. 3399

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