MEMPHIS — If you are a Verizon customer on the East Coast, odds are good that your cellphone or tablet arrived by way of a beige, windowless warehouse near Tennessee’s border with Mississippi.
Inside, hundreds of workers, many of them women, lift and drag boxes weighing up to 45 pounds, filled with iPhones and other gadgets. There is no air-conditioning on the floor of the warehouse, which is owned and operated by a contractor. Temperatures there can rise past 100 degrees. Workers often faint, according to interviews with 20 current and former employees.
One evening in January 2014, after eight hours of lifting, Erica Hayes ran to the bathroom. Blood drenched her jeans.
She was 23 and in the second trimester of her first pregnancy. She had spent much of the week hoisting the warehouse’s largest boxes from one conveyor belt to the next. Ever since she learned she was pregnant, she had been begging her supervisor to let her work with lighter boxes, she said in an interview. She said her boss repeatedly said no.
She fainted on her way out of the bathroom that day. The baby growing inside of her, the one she had secretly hoped was a girl, was gone.
“It was the worst thing I have ever experienced in my life,” Ms. Hayes said.
Three other women in the warehouse also had miscarriages in 2014, when it was owned by a contractor called New Breed Logistics. Later that year, a larger company, XPO Logistics, bought New Breed and the warehouse. The problems continued. Another woman miscarried there this summer. Then, in August, Ceeadria Walker did, too.
The women had all asked for light duty. Three said they brought in doctors’ notes recommending less taxing workloads and shorter shifts. They said supervisors disregarded the letters.
Pregnancy discrimination is widespread in corporate America. Some employers deny expecting mothers promotions or pay raises; others fire them before they can take maternity leave. But for women who work in physically demanding jobs, pregnancy discrimination often can come with even higher stakes.
The New York Times reviewed thousands of pages of court and other public records involving workers who said they had suffered miscarriages, gone into premature labor or, in one case, had a stillborn baby after their employers rejected their pleas for assistance — a break from flipping heavy mattresses, lugging large boxes and pushing loaded carts.
They worked at a hospital, a post office, an airport, a grocery store, a prison, a fire department, a restaurant, a pharmaceutical company and several hotels.
But refusing to accommodate pregnant women is often completely legal. Under federal law, companies don’t necessarily have to adjust pregnant women’s jobs, even when lighter work is available and their doctors send letters urging a reprieve.
The Pregnancy Discrimination Act is the only federal law aimed at protecting expecting mothers at work. It is four paragraphs long and 40 years old. It says that a company has to accommodate pregnant workers’ requests only if it is already doing so for other employees who are “similar in their ability or inability to work.”
That means that companies that do not give anyone a break have no obligation to do so for pregnant women. Employees say that is how the warehouse’s current owner, XPO Logistics, operates.
For example, last October, a 58-year-old woman died of cardiac arrest on the warehouse floor after complaining to colleagues that she felt sick, according to a police report and current and former XPO employees. In Facebook posts at the time and in recent interviews, employees said supervisors told them to keep working as the woman lay dead.
If companies “treat their nonpregnant employees terribly, they have every right to treat their pregnant employees terribly as well,” said Representative Jerrold Nadler, Democrat of New York, who has pushed for stronger federal protections for expecting mothers.
In every congressional session since 2012, a group of lawmakers has introduced a bill that would do for pregnant women what the Americans With Disabilities Act does for disabled people: require employers to accommodate those whose health depends on it. The legislation has never had a hearing.
“We are deeply troubled by these allegations,” said a Verizon spokesman, Rich Young. “We have no tolerance — zero tolerance — for this sort of alleged behavior.” He said the company opened an internal investigation in response to The Times’s inquiry. “None of these allegations are consistent with our values or the expectations and demands of contractors that work directly for us or have any affiliation with us.”
Erin Kurtz, an XPO spokeswoman, said: “We’re surprised by the allegations of conduct that either predate XPO’s acquisition of the Memphis facility or weren’t reported to management after we acquired it in 2014.” She said the allegations “are unsubstantiated, filled with inaccuracies and do not reflect the way in which our Memphis facility operates.” The company also disputed that the warehouse was windowless, noting that there were a number of interior windows.
Ms. Kurtz said XPO prioritized the safety of its workers, had “no tolerance for any type of discriminatory behavior” and has enhanced pay and benefits for employees in recent years.
Those improvements didn’t help Ceeadria Walker when she got pregnant. The 19-year-old said she gave her XPO supervisor a doctor’s letter from OB/GYN Centers of Memphis saying she should not lift more than 15 pounds. She said she asked to be assigned to an area with lighter items. Ms. Walker said her supervisor regularly sent her to a conveyor belt line where she had to lift more than she was supposed to. She miscarried the day after spending her shift handling those heavier boxes.
“We’re saddened that Ms. Walker had a miscarriage over the summer,” Ms. Kurtz said. “We’re investigating these newly raised claims.”
The Risks of Lifting
For most women, it is safe to work while pregnant.
But there is “a slight to modest increased risk of miscarriage” for women who do extensive lifting in their jobs, according to guidelines published this year by the American College of Obstetricians and Gynecologists. The recommendations are intended to inform doctors about best practices.
Two decades of medical research have established a link between physically demanding work and fetal death, though there is debate about how strong the connection is. Part of the difficulty in measuring the relationship, researchers say, is that it’s impossible to design a study that isolates the impact of heavy lifting versus other risk factors, like pre-existing conditions.
In a peer-reviewed study from 2013, researchers in Denmark found that the risk of fetal death increased as women lifted heavier objects more frequently. The researchers theorized that lifting and bending could reduce blood flow to the uterus.
Another possibility, doctors said, is that extreme physical exertion diverts blood from a woman’s womb to her muscles.
The potential dangers are greatest for women whose pregnancies are already classified as high risk, which is why doctors often advise that they be given easier tasks.
“When employers ignore these medical recommendations, they are potentially jeopardizing patients’ health,” said Rebecca Jackson, the chief of obstetrics and gynecology at San Francisco General Hospital. “It’s especially bothersome to me that this is occurring for women in strenuous jobs, given that they are at the most risk of injuring themselves or the pregnancy.”
Warehouses are among the fastest growing workplaces in the country, employing more than a million Americans. Retailers, competing against the likes of Amazon, demand high speed at low costs.
On Memphis’s east side, these are often the highest-paying jobs available for people without college degrees. Drawn by the proximity to rail lines and highways, some of the country’s largest companies have set up distribution centers here. One dispatches Nike shoes. Another handles Disney toys. And a short drive from Graceland, Verizon has its hub.
XPO runs all of those warehouses. The Verizon facility, which XPO took over when it bought New Breed Logistics in 2014, is the only one where The Times interviewed workers about pregnancy discrimination. Shifts there can last 12 hours. Workers get 30 minutes for lunch and as many as three other 15-minute breaks.
XPO’s 2017 employee handbook warns that taking unapproved breaks, arriving to work late or leaving early can result in “immediate termination,” unless the reasons for the departures are “legally protected.” The Pregnancy Discrimination Act does not guarantee women such protections.
A Job on the Line
It was the fall of 2013, and Erica Hayes was convinced that she was having a girl. She daydreamed about the clothes she would buy and made a list of favorite names. Her friend was pregnant with a boy, and they talked about raising their children together.
At first, Ms. Hayes was processing individual shipments to Verizon customers — one phone, one charger, onto the next. Then, a crush of holiday orders hit the warehouse in December. She said that her boss began dispatching her to the area of the warehouse that handled bulk shipments, often destined for Verizon stores, where the warehouse was struggling to keep up. She often spent up to 12 hours a day lifting huge boxes, some with 20 iPads and 20 accessories.
She said she could have handled paperwork or stayed in the section of the warehouse devoted to small shipments. But she said her supervisor kept ordering her to work with the largest boxes. Ms. Hayes’s mother said that her daughter talked to her about the rejected requests at the time.
Ms. Hayes said she began to bleed regularly at work. She sometimes left early to go to the hospital. Each time, she said, her supervisor wrote her up. As the demerits accumulated, she stopped leaving. Instead, she bled through four maxi pads a day.
“My job was on the line,” she said. At the end of a long shift in January 2014, she felt blood gushing into her jeans.
A co-worker fetched her a black peacoat to wrap around her waist to cover the spreading stain. Another grabbed plastic bags to line the leather driver’s seat of her 2003 Hyundai. Ms. Hayes fainted before she could get to the car. An ambulance took her to the hospital.
A couple of weeks later, she said, her supervisor handed her a $300 invoice for the cost of the ambulance ride. (Ms. Hayes, who still works at the warehouse and is hoping for a promotion, said she never paid the bill.)
That spring, two more women had miscarriages at the warehouse. Both said that their supervisors rejected their requests to pack lighter boxes.
One of the women, who still works at the warehouse, declined to be identified for fear of losing her job.
The other was Tasha Murrell. She already had two boys and was praying for a girl. She planned to name the baby Dallas, after the Cowboys, her favorite football team. Ms. Murrell said that she told her boss she was pregnant and asked to leave work early one day that spring because the lifting had become painful.
Her supervisor told her to get an abortion, according to a discrimination complaint she filed with the Equal Employment Opportunity Commission in April 2018. Ms. Murrell woke up the next morning to find her mattress stained with blood. Her husband drove her to the emergency room, where doctors told her she had miscarried. Ms. Murrell left the job last year and is now an organizer with the Teamsters, which is trying to organize a union at the warehouse.
Ms. Hayes and Ms. Murrell had the same supervisor: Amela Bukvic. Through her lawyer, Ms. Bukvic denied telling anyone to get an abortion. “I would never make such a horrible statement to anyone, especially an employee under my supervision,” she said.
Ms. Bukvic said that she made sure that the pregnant women whom she managed had workloads that were not excessive. She said she never denied help to the pregnant employees. “If they had any work restrictions, I always took all steps to make sure their work duties never exceeded those restrictions,” she said.
A few months later, in September 2014, it happened to another woman.
Chasisty Bee, 33, was four months pregnant. Hoping for a girl, she bought a newborn’s blanket from Burlington Coat Factory.
Ms. Bee had miscarried in 2008 while working at the Verizon warehouse. This time, she said, she brought in a doctor’s note recommending that she work shorter shifts, be given a chair and light duty. Supervisors rejected her requests. One afternoon, after almost 14 hours on her feet, she started feeling dizzy and crumpled to the warehouse floor. Her physician told her that she had miscarried.
After Ms. Bee got pregnant again in 2015, she found a new job. “I couldn’t bear to lose another child,” she said. The next February, she gave birth to a healthy girl.
Ms. Kurtz, the XPO spokeswoman, said: “The false and misleading allegations directed at our Memphis facility are fueled by the Teamsters and are part of their ongoing, but unsuccessful, attempts at organizing.”
A bipartisan group of lawmakers has proposed upgrading the 1978 Pregnancy Discrimination Act. The bill would compel companies to accommodate pregnant women — for example, by offering extra breaks or the option of light duty — as long as it does not impose an “undue hardship” on their business. That is the same language used in the Americans With Disabilities Act.
Women “shouldn’t have to choose between keeping a doctor appointment or their job,” said Senator Dean Heller, Republican of Nevada, one of 125 co-sponsors of the Pregnant Workers Fairness Act in the House and Senate.
In 2015, it looked as if the bill might gain traction. The Supreme Court had just ruled in favor of Peggy Young, a UPS driver who was denied light duty after getting pregnant. Pregnancy discrimination was suddenly grabbing headlines.
But some Republicans, including Senator Lamar Alexander of Tennessee, where the XPO warehouse is, viewed that bill as adding a confusing new layer of regulations, according to Senate aides. Mr. Alexander, who is chairman of the Senate committee on health and labor, co-sponsored a competing bill. It expanded protections for pregnant women in some cases. But it still allowed employers to deny accommodations if they weren’t being provided to other workers in similar situations.
“It was a useful mechanism in order to divert some of the momentum that was building,” said Emily Martin of the National Women’s Law Center, an advocacy group focused on women’s rights.
Both bills stalled.
Outside Washington, there have been fewer roadblocks. At least 23 states have passed laws that are stronger than current federal protections (Tennessee is not among them). In Utah, Delaware, Colorado and New York, Republicans led the charge. In Nebraska, an anti-abortion Democrat pushed the measure.
“Women have lost their children due to the lack of robust pregnancy protections in the workplace,” said Catherine Glenn Foster, the president of Americans United for Life, an anti-abortion group. “Anyone who can’t get behind this or uses it as a political game — it’s a travesty.”
‘I Watched Her Die’
The problems extend beyond the warehouse floor — to hotels, restaurants, fire stations and stores.
At the Albertsons grocery store in Atascadero, Calif., Reyna Garcia had one of the toughest jobs. She pushed 200-pound carts, dragged sacks of cat litter and climbed 10-foot ladders to stock goods.
Ms. Garcia got pregnant in July 2012, found out she was having a girl and decided to name the baby Jade.
Ms. Garcia told her boss that her pregnancy was high risk — she had previously given birth prematurely. She presented a doctor’s note saying she should not lift more than 15 pounds. The boss ignored the recommendation, according to a lawsuit she filed against Albertsons in federal court in Los Angeles.
“She was feeling like she wasn’t getting any response from her supervisor,” her doctor, Mareeni Stanislaus, said in an interview. She said the restrictions were “even more important” because Ms. Garcia had a high-risk pregnancy. Heavy lifting can prompt smooth muscles like the uterus to contract, potentially inducing preterm labor, Dr. Stanislaus said.
The regular twisting and hoisting caused intense pain, but Ms. Garcia needed the paycheck and the health insurance. She requested any other position — in the Albertsons bakery or at the meat counter or as a fruit cutter or in the pharmacy or at the customer service desk.
Her boss turned her down, according to the lawsuit, which included corroborating statements from her colleagues.
Her doctors sent two more notes. “She should avoid prolonged standing without a break and should avoid excessive bending and reaching and balancing,” Dr. Stanislaus wrote. Copies of the letters were included in the suit.
About three weeks later, in the middle of her shift, Ms. Garcia began feeling “pelvic pressure,” according to her lawsuit. She asked her boss for permission to leave early; he gave her a long list of tasks that she needed to finish first.
Ms. Garcia ended up working overtime. By the time she got home, she could feel her amniotic sac bulging between her legs. It felt “like a balloon coming out of me,” she said in a sworn statement. She went to the emergency room. She could feel something scratching from inside; her doctor told her it was the baby’s fingernails. She was 20 weeks pregnant.
Five days later, Ms. Garcia gave birth to Jade. The baby lived less than 10 minutes.
“My husband and I watched her die,” Ms. Garcia said in her statement. “It was the most painful thing I have ever experienced.”
In 2014, Albertsons settled Ms. Garcia’s lawsuit for an undisclosed amount; the deal prohibited her from speaking publicly about what happened. “The company has a policy against pregnancy discrimination, and we accommodate employees with pregnancy-related disabilities in accordance with state and federal law,” said Christine Wilcox, an Albertsons spokeswoman.
Ms. Garcia’s boss demoted her when she returned to work.
“I lost my baby for this job,” Ms. Garcia said, according to her lawsuit. “Why didn’t you give me help when I was pregnant and asked for it?”
ST. LOUIS • A St. Louis jury has awarded $8.5 million to a Danielle McGaughy, of St. Joseph, Mo., sued the gas company for racial discrimination.
After a two-week trial before St. Louis Circuit Judge Steven Ohmer, jurors found Thursday evening in favor of Danielle McGaughy, 47, of St. Joseph, Mo., a black woman who has worked for the gas utility since 2004.
McGaughy sued Spire in St. Louis Circuit Court in February 2016, claiming a hostile work environment, including coworkers’ referring to President Barack Obama as a monkey. She also claimed she was passed over for a promotion to a supervisor position in 2014 in favor of a younger, white female coworker whom McGaughy said had less education and work experience.
McGaughy’s lawsuit included other claims of racial discrimination: that she was denied five other promotions and forced to commute to Kansas City instead working at an office in St. Joseph where she lives.
McGaughy testified that although she encountered no direct racist comments at work, her managers and colleagues questioned her competence, her attorneys E.E. Keenan and Sonal Bhatia said. The trial, they said, focused on subconscious workplace bias — that employers treat workers of color differently through subtle microaggressions.
BRIEF OVERVIEW OF THE CASES THAT SHAPED THE YEAR IN EMPLOYMENT LAW
(WITH A BIT OF COLOR COMMENTARY)
During his first year or so in office, President Trump and his administration launched an all-out war on the American worker in every area touching upon the employment relationship. From wage and hour, to anti-discrimination, to workplace health and safety, to the unionized work place – the Trump government has begun to completely gut the rights and protections of the American worker.
In addition, President Trump has nominated to the Supreme Court, the Circuit Courts of Appeal, and the District Courts individuals who are extremely hostile to employee rights.
Sadly, the Democrats and Independents in Congress have been unable to stop the Trump administration. And Republicans, who should know better, have been cowed into a state of sycophantic submission. Fortunately, at least for those workers living in California, Governor Jerry Brown, Attorney General Xavier Beccera, and the Democrats in the California State Legislature have moved to beef-up protections for California workers.
This article attempts to “cherry-pick” and briefly summarize not just the most significant employment developments and cases of 2017 (and early 2018) but also those that are of the most utility to plaintiff employment practitioners.
The Trump administration’s anti-worker efforts
In a little over a year, the Trump administration has moved to eviscerate so many employee rights and protections that it is impossible to detail all of them.
Accordingly, what follows are just a few examples of the efforts by President Trump and his administration to curtail employee rights and protections.
While the Obama administration attempted to bolster employee wages by increasing the salary threshold for the White Collar Exemption from $455/workweek (or $23,660 for a full year worker) to $913/workweek (or $47,476 for a full year worker) so that more employees would be eligible for overtime, the Trump administration made clear its opposition to this Obama initiative. Likewise, while the Obama administration sought to benefit lower wage restaurant employees by establishing a “tip pooling” rule which limited the scenarios in which restaurant employers could force tipped workers to share their gratuities with others (including not just the traditionally non-tipped “back of the house” employees, but also managers and owners), the Trump administration has announced plans to undo the Obama-era “tip pooling” rule and allow restaurant owners and managers to steal the tips left for these workers.
Similarly, while the Obama administration took the position that Title VII protected LGBTQ employees from discrimination, harassment and retaliation, the Trump Justice Department has reversed course and taken the position that those employees are not entitled to Title VII protection and President Trump has taken the position that trans individuals should be kicked out of and not allowed to join the military.
The Trump EPA has argued in favor of repealing an Obama-era OSHA rule designed to protect workers from exposure to harmful silica dust (which is linked to lung cancer, kidney disease, and chronic obstructive pulmonary disease). Indeed, while the Obama administration issued a rule that reduced permissible exposure to beryllium from 2.0 micrograms per cubic meter of air to 0.2 micrograms per cubic meter of air over an eight-hour period, the Trump administration has proposed keeping beryllium exposure limits at the previous level for workers in the shipyard and construction industries. The Trump administration has also halted an Obama-era rule requiring employers to submit workplace injury and illness data for posting online.
The Trump administration has also taken affirmative steps to dramatically curtail the rights of unions and unionized workers. Indeed, on December 1, 2017, Peter B. Robb, the NLRB’s new Trump appointed General Counsel, issued an internal memorandum declaring that he would be rescinding seven “guidance memos” that were crafted by his Democratic predecessors and that he was freezing worker friendly reforms made under the Obama administration; that generally showed that he plans to take a much narrower view of worker rights than his predecessors. Similarly, while President Obama’s Solicitor General sided with the unions in Friedrichs v. California Teachers Association (2016) 136 S.Ct. 1083, and argued that public employee fair share fees were legal, President Trump’s Solicitor General sided against the unions on that precise issue in Janus v. American Federation of State, County, and Municipal Employees and argued that fair share fees are unconstitutional because they violated free speech rights.
Compare Obama Justice Department Brief of the United States as Amicus Curiae Supporting Respondents, p.11 (“Abood was correctly decided and should be reaffirmed.”), accessible at http://www.scotusblog.com/wpcontent/uploads/2015/11/14915_amicus_resp_US.authcheckdam.pdf with Trump Justice Department Brief of the United States as Amicus Curiae Supporting Petitioner, p.11 (“The court should overrule Abood and hold that the first amendment prohibits compulsory agency fees in public employment.”) accessible at https://www.supremecourt.gov/DocketPDF/16/161466/22919/20171206205129333_161466tsacUnitedStates.pdf.
U.S. Supreme Court
During 2017, the U.S. Supreme Court did not issue any major decisions impacting labor and employment law practitioners. It did, however, issue three decisions covering certain niche labor and employment law issues – Perry v. Merit Systems. Protection. Bd. (2017) 137 S.Ct. 1975 (holding that the proper review forum when the Merit Systems Protection Board dismisses a mixed case on jurisdictional grounds is district court, not the Federal Circuit); McLane Co. v. EEOC (2017) 137 S.Ct. 1159 (clarifying that the scope of review for employers facing EEOC administrative subpoenas is “abuse-of-discretion” rather than de novo review); and NLRB v. SW Gen., Inc. (2017) 137 S.Ct. 929 (holding that the Federal Vacancies Reform Act of 1998, which prevents a person who has been nominated to fill a vacant office requiring presidential appointment and Senate confirmation from performing the duties of that office in an acting capacity, applied to Lafe Solomon, who President Barack Obama directed to perform the duties of general counsel for the NLRB, once the President nominated him to fill that post; and as a result, an NLRB order charging an employer with an unfair labor practice was properly vacated).
In early 2018, the Supreme Court decided two important employment cases. In the first case, Artis v. D.C. (2018) 138 S.Ct. 594, the Supreme Court addressed an interesting procedural question involving tolling and, in the process, showed just how remarkably heartless some judges including, in particular, the conservatives on the Supreme Court can be. Stephanie Artis filed a lawsuit in federal district court alleging that her employer, the District of Columbia, violated Title VII and several District of Columbia laws. At the time she filed her lawsuit, she had two years remaining of the statutes of limitation applicable to her state law claims.
Her lawsuit languished in the District Court for two years before the Court granted the District of Columbia’s motion for summary judgment on her Title VII claims and declined to exercise supplemental jurisdiction over her state law claims.
In declining to exercise jurisdiction over her state law claims, the District Court expressly opined that Artis would not be prejudiced by the dismissal because, under the Federal Supplemental Jurisdiction Statute, 28 U.S.C. section 1367(d), her state law claims were tolled during the time period in which they were pending in federal court plus an additional 30 days. Fifty-nine days after the dismissal of her state law claims, Artis refiled those claims in the District of Columbia Superior Court. The Superior Court dismissed her state law claims holding that she filed them 29 days too late. The Superior Court bizarrely rejected Artis’s “stop the clock” interpretation of the word “tolled” in the Supplemental Jurisdiction Statute and concluded that she only had 30 days following the dismissal of her claims in federal court to refile.
On appeal, the District of Columbia Court of Appeals affirmed. On further appeal, the U.S. Supreme Court, in an opinion by Justice Ginsburg joined by Justices Breyer, Sotomayor, Kagan and Roberts, reversed, holding that “tolled” means what it says – to stop the clock. Notoriously hostile to employee rights, Justice Gorsuch filed a dissenting opinion in which Justices Kennedy, Thomas, and Alito joined, explaining that the word “tolled” can have two different meanings – to stop the clock or to not stop the clock – depending on context. And, in this case, where the Supplemental Jurisdiction Statute says that the statutes of limitation on claims are tolled during the time that the case is pending in federal court, it means that the running of the statutes of limitation is actually not tolled or stopped.
In the second case, Digital Realty Trust, Inc. v. Somers (2018) 138 S.Ct. 767, the Supreme Court oddly held that the anti-retaliation provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act only protects individuals who have reported a violation of the securities laws to the SEC. Strangely, in so holding, the Supreme Court rejected the interpretations of the Second and Ninth Circuit, which had cogently explained why an internal complaint was sufficient to invoke the protections of Dodd-Frank.
The Ninth Circuit
During 2017, the Ninth Circuit issued five important decisions in the areas of retaliation (Arias v. Raimondo (9th Cir. 2017) 860 F.3d 1185), sexual harassment (Zetwick v. County of Yolo (9th Cir. 2017) 850 F.3d 436), gender discrimination (Mayes v. WinCo Holdings, Inc. (9th Cir. 2017) 846 F.3d 1274), the Fair Credit Reporting Act (Syed v. MI, LLC (9th Cir. 2017) 846 F.3d 1034), and taxes (Clemens v. Centurylink Inc. (9th Cir. 2017) 874 F.3d 1113).
In Arias, the Ninth Circuit held that an employer’s outside counsel may be personally liable for violating the anti-retaliation provisions of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. section 215(a)(3). The plaintiff, Jose Arias, who had sued his former employer, Angelo Dairy, in California State Court on behalf of himself and other employees under California’s Private Attorneys General Act of 2004, Cal. Labor Code section 2698 et seq., alleged that the Dairy’s outside counsel, Anthony Raimondo, set in motion an underhanded plan to derail Arias’s lawsuit by enlisting the services of U.S. Immigration and Customs Enforcement (“ICE”) to take him into custody at a scheduled deposition and then to remove him from the United States. Raimondo moved for summary judgment arguing that because he was never Arias’s actual employer, he could not be held liable under the FLSA for retaliation against someone who was never his employee. While the district court granted Raimondo’s motion, the Ninth Circuit reversed, holding that an employer’s attorney can be held liable for retaliating against his client’s employee because the employee sued his client for violations of workplace laws.
Preceding the dramatic rise of the #MeToo movement, Zetwick serves as a powerful reminder that some courts will no longer excuse sexually inappropriate conduct as being merely innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. Victoria Zetwick alleged that her employer created a sexually hostile work environment in violation of Title VII by, among other things, greeting her with unwelcome hugs on more than one hundred occasions, and a kiss at least once, during a 12-year period. Opining that “hugging and kissing on the cheek in the workplace is not only insufficient to sustain a claim of hostile work environment, but overextends the intended scope of Title VII,” the District Court granted the employer’s motion for summary judgment. (Zetwick v. Cty. of Yolo, (E.D. Cal. 2014) 66 F.Supp.3d 1274, 1280.)
On appeal, the Ninth Circuit reversed, holding, “we cannot accept the conclusion that Zetwick did not state an actionable claim of a sexually hostile work environment . . . A reasonable juror could find, for example, from the frequency of the hugs, that [her supervisor’s] conduct was out of proportion to ‘ordinary workplace socializing’ and had, instead, become abusive.” (850 F.3d at 443444.) Importantly, the Ninth Circuit also highlighted several mistakes that the district court made (that are also commonly made by other courts): (1) the district court applied an incorrect standard for assessing hostile work environment claims – the standard is “severe or pervasive,” not “severe and pervasive”; (2) the district court completely overlooked legal recognition of the potentially greater impact of harassment from a supervisor versus a coworker; (3) the court improperly disregarded “me too” evidence showing that the alleged harasser also sexually harassed others – the sexual harassment of others, if shown to have occurred, is relevant and probative of a defendant’s general attitude of disrespect toward his female employees and his sexual objectification of them; (4) it was improper for the court to determine that Zetwick’s testimony that another woman was offended by the alleged harasser’s hugs, based on Zetwick’s firsthand observation, was somehow less credible than that other woman’s assertion in a post hoc declaration that she was not offended as a reasonable jury could conclude that the woman had reasons not to complain about the past treatment by her employer and to make a declaration, not subject to cross-examination, to support her employer’s position.
As in Zetwick, the Ninth Circuit reversed summary judgement granted to an employer in Mayes and highlighted multiple mistakes made by the district court (mistakes that are also commonly made by other courts). Katie Mayes sued her former employer, a grocery store, for gender discrimination after she was fired for taking a stale cake from the store’s bakery to the break room to share with fellow employees. The district court granted the store’s motion for summary judgment, finding that Mayes was unable to prove pretext. On appeal, the Ninth Circuit initially explained that an employee can prove pretext either: (1) directly, by showing that unlawful discrimination more likely motivated the employer; or (2) indirectly, by showing that the employer’s proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not believable.
Then, the Ninth Circuit found that summary judgment was inappropriate because Mayes was able to establish pretext both directly and indirectly. With respect to the direct route of proving pretext, the Ninth Circuit found that unlawful discrimination more likely motivated the employer because Mayes put forward evidence that one of the individuals who participated in the decision-making process (but did not participate in the ultimate termination decision): (1) commented that a man “would be better” at leading one of the company’s committees; (2) commented that she did not like “a girl” running the company’s freight crew; and (3) criticized Mayes, but not her male counterpart, for leaving work early to care for her children. In this regard, the Ninth Circuit held that racist or sexist statements constitute direct evidence of discrimination and rejected the district court’s determination that these were so-called “stray remarks.”
The Ninth Circuit also rejected the district court’s view that direct evidence had to be “specific and substantial.” With respect to the direct route of proving pretext, the Ninth Circuit found that the employer’s proffered explanation for the termination was unworthy of credence because: (1) multiple employees testified that it was a common, accepted practice – rather than an offense punished by termination – for supervisors such as Mayes to take cakes to the break room; (2) the grocery replaced her with a less qualified male employee; the Ninth Circuit explained that evidence that an employer replaced a plaintiff with a less qualified person outside the protected class can be evidence of pretext.
Syed v. MI, LLC is a case of first impression in the federal appellate courts: whether a prospective employer may satisfy the Fair Credit Reporting Act’s (“FCRA”) disclosure requirements by providing a job applicant with a disclosure that a consumer report may be obtained for employment purposes which simultaneously serves as a liability waiver for the prospective employer and others. The Ninth Circuit held that a prospective employer violates the FCRA when it procures a job applicant’s consumer report after including a liability waiver in the same document as the statutorily mandated disclosure. The Ninth Circuit also held that in light of the clear statutory language that the disclosure document must consist “solely” of the disclosure, a prospective employer’s violation of the FCRA is “willful” when the employer includes terms in addition to the disclosure, such as a liability waiver, before procuring a consumer report or causing one to be procured.
Finally, in Clemens, the Ninth Circuit followed the Third, Seventh, and Tenth Circuits and held that Title VII authorizes district courts, in their sound discretion, to permit equitable gross-up adjustments to compensate successful plaintiffs for increased income-tax liability resulting from the receipt of a back-pay award in one lump sum.
One Ninth Circuit case, Perez v. City of Roseville (9th Cir. 2018) 2018 WL 797453, from thus far in 2018 merits discussion. Janelle Perez was a probationary police officer employed by the Roseville Police Department. Although she was married, she had an offduty affair with a fellow police officer – Shad Begley.
Begley’s wife learned about the affair and was not very happy about it. So, she reported Begley and Perez to the police department. The police department investigated the complaint, corroborated the affair between Perez and Begley, and issued to them a written reprimand. Perez appealed the Reprimand. At the hearing, the Department informed Perez that she had been fired. When Perez asked why, the Department refused to give a reason. Two weeks later, the Department issued a revised written Reprimand to Perez reversing the statements about Unsatisfactory Work Performance and Conduct and, instead, basing it on Perez’s inappropriate Use of Personal Communication Devices. Perez did not appeal this version of the Reprimand because she had already been fired. Instead, Perez sued the Department pursuant to 42 U.S.C. Section 1983, alleging that the Department’s decision to fire her violated her constitutional rights to privacy and intimate association. The Department filed a motion for summary judgment arguing that (1) the decision to fire Perez had nothing to do with her extramarital affair; and (2) even if her affair played a role in the decision, it didn’t do anything wrong as Perez had no constitutional right to not be fired for having an affair.
The district court agreed with the Department and granted its motion. On appeal, the Ninth Circuit reversed. Initially, the Ninth Circuit held that public employees such as police officers have a right to privacy in their private, off-duty sexual behavior. Then, the Ninth Circuit concluded that there was a genuine factual dispute about whether the Department fired her “in part” because of her affair. In so ruling, the Ninth Circuit focused on several critical pieces of evidence including: (1) a non-decision-maker – who played a role in contributing information in the decision-making process – morally disapproved of the affair and thought that Perez should be fired because of it; (2) the speed with which the Department “discovered” unrelated problems with Perez’s performance – within 8 weeks after it learned about the affair; and (3) the shifting explanations offered by the Department for firing Perez. When it first notified Perez that she had been fired, the Department refused to provide a reason. Next, well after her firing, the Department issued a new Reprimand to Perez reversing the findings of “Conduct Unbecoming” and “Unsatisfactory Work Performance” and substituting a new violation (“Use of Personal Communication Devices”). Then, when the litigation began, the Department put forth the three brand new reasons – failure to get along with women officers, citizen’s complaint, and bad attitude with supervisor – all of which differ from both the original and the belated reprimands issued by the Department after she was fired.
Two non-Ninth Circuit cases merit a brief discussion as they: (1) put the Ninth Circuit to shame and cast doubt on its reputation as the Nation’s leading progressive court; and (2) shed light on an absolutely fascinating internecine war between the Trump/Jeff Sessions Justice Department and, what for all intents and purposes is still, the Obama EEOC, having two Democratic Obama appointees, one Republican Obama appointee, and no General Counsel. In Zarda v. Altitude Express, Inc. (2nd Cir. 2018) 883 F.3d 100, the Second Circuit, in a 103 en banc decision, joined the Seventh Circuit and the EEOC in holding that Title VII prohibits discrimination on the basis of sexual orientation. In so holding, the Second Circuit rejected the arguments of the Trump/Jeff Sessions Justice Department which had filed an amicus brief stating that it, and not the EEOC, was speaking on behalf of the United States and that “discrimination because of sexual orientation is not discrimination because of sex under Title VII.” In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (6th Cir. 2018) 2018 WL 1177669, the Sixth Circuit found persuasive the arguments of the EEOC and held that Title VII prohibits discrimination on the basis of an employee’s status as a transgender employee. Importantly, the Sixth Circuit also rejected an attempt by the Funeral Homes employer to argue that the federal Religious Freedom Restoration Act serves as an affirmative defense to a Title VII claim being prosecuted by the EEOC.
California Supreme Court
The most important employment law case issued by the California Supreme Court in 2017 involved California’s anti-SLAPP statute, Code of Civil Procedure section 425.161. California enacted the antiSLAPP statute in 1992 “out of concern over ‘a disturbing increase’” in civil suits “aimed at preventing citizens from exercising their political rights or punishing those who have done so.” (Simpson StrongTie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) The courts have recognized that “[t]he quintessential SLAPP is filed by an economic powerhouse to dissuade its opponent from exercising its constitutional right to free speech or to petition.” (Nam v. Regents of the University of California (2016) 1 Cal.App.5th 1176, 1193.)
Unfortunately, since its passage, “economic powerhouses” have perverted the anti-SLAPP statute and used it to quash the very people whom it was supposed to protect. For example, in Nesson v. Northern Inyo County Local Hospital Dist. (2012) 204 Cal.App.4th 65, DeCambre v. Rady Children’s Hospital San Diego (2015) 235 Cal.App.4th 1, Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, and Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510, employers used the anti-SLAPP statute to defeat FEHA discrimination claims.
In Park v. Board of Trustees (2017) 2 Cal.5th 1057, the California Supreme Court took an important first step toward restoring anti-SLAPP jurisprudence so that it is more closely aligned with the legislative intent by:
(1) disapproving of Nesson, DeCambre, and Tuszynska; (2) expressly taking no opinion regarding whether the terrible Hunter decision was correctly decided; and (3) specifically approving of the terrific pro-employee Nam v. Regents of the University of California case, supra, 1 Cal.App.5th 1176. Ultimately, the Supreme Court concluded: “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (2 Cal.5th at 1060.)
In Williams v. Superior Court (2017) 3 Cal.5th 531, the Supreme Court confirmed that broad discovery is available in claims brought under California’s Private Attorneys General Act (“PAGA”) and held that the contact information of those a plaintiff purports to represent is routinely discoverable as an essential prerequisite to effectively seeking group relief, without any requirement that the plaintiff first show good cause.
Mendoza addresses employees’ rest days
In Mendoza v. Nordstrom Inc. (2017) 3 Cal. 5th 531, the California Supreme Court turned in a homework assignment given to it by the Ninth Circuit, 865 F.3d 1261 (9th Cir. 2017), and addressed several questions regarding California Labor Code sections 551, 552 and 556 by stating the following:
- A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.
- The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.
- An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.
California Courts of Appeal
Ly v. Cty. of Fresno
One of the most surprising and, perhaps, troublesome cases of 2017 is Ly v. Cty. of Fresno (2017) 16 Cal.App.5th 134. In Ly, the Court of Appeal held that a decision in a workers’ compensation proceeding could have preclusive effects in an employee’s FEHA case. Three Laotian correctional officers filed suit against their employer, alleging that they were subjected to racial and national origin discrimination, harassment, and retaliation. The three simultaneously pursued workers’ compensation claims. The workers’ compensation judges denied the plaintiffs’ claims after finding their employers’ actions were nondiscriminatory, good faith personnel decisions. Subsequently, in the FEHA action, their employer moved for summary judgment based on the doctrines of res judicata and collateral estoppel, arguing the workers’ compensation decisions barred the plaintiffs’ FEHA claims. The trial court granted summary judgment, and the Court of Appeal affirmed. Unless this decision is depublished or overruled, there is a high degree of risk that the workers’ compensation system will be hijacked or militarized by plaintiff and defense employment attorneys to serve as a proxy for any employment claims that employees may bring in civil court. Such a development will be unfortunate not only for the workers’ compensation system but also employees and employers.
Bareno v. San Diego Cmty. Coll. Dist.
Bareno v. San Diego Cmty. Coll. Dist. (2017) 7 Cal.App.5th 546, is a terrific case for plaintiff employment practitioners handling summary judgment and/or claims involving the California Family Rights Act (“CFRA”). Leticia Bareno was employed by the San Diego Community College District. Bareno requested medical leave and provided a medical certification from her physician. After the time period identified in her request for leave expired and Bareno failed to report to work, the District informed her that it had accepted her voluntary resignation. Bareno immediately informed the District that she had not resigned and that she had emailed her supervisor an additional medical certification indicating her need for additional medical leave. The College, claiming that the supervisor never received the additional medical certification, refused to reconsider its position. Bareno sued, alleging that the District had retaliated against her for taking medical leave, in violation of CFRA. The College moved for summary judgment, and the trial court granted the motion. On appeal, Bareno argued that the trial court erred in granting summary judgment on her CFRA retaliation claim because there were triable issues of material fact in dispute. The Court of Appeal agreed, initially noting that:
When viewed as a whole, it is clear that CFRA and its implementing regulations envision a scheme in which employees are provided reasonable time within which to request leave for a qualifying purpose, and to provide the supporting certification to demonstrate that the requested leave was, in fact, for a qualifying purpose, particularly when the need for leave is not foreseeable or when circumstances have changed subsequent to an initial request for leave. (7 Cal.App.5th at 565.)
Accordingly, the Court of Appeal held that the question of whether notice is sufficient under CFRA is a question of fact. The court then reversed, finding the following three disputed issues of material fact. First, the court concluded that there was a triable dispute regarding whether Bareno’s supervisor had timely received the email providing notification of Bareno’s need for additional medical leave. Second, it concluded that even if Bareno’s supervisor had not received the email, there was a triable issue as to whether it fulfilled its obligations under CFRA, which obligates employers to make further inquiries of an employee if it requires additional information from that employee regarding the employee’s request for leave. Third, the court concluded that even if Bareno’s supervisor had not received the email, there was a triable issue as to whether the College decided to interpret Bareno’s absences as a “voluntary resignation,” despite evidence to the contrary, in retaliation for taking medical leave. In reversing summary judgment, the Court of Appeal reiterated that “[M]any employment cases present issues of intent, … motive, and hostile working environment, issues not determinable on paper. Such cases … are rarely appropriate for disposition on summary judgment, however liberalized [summary judgment standards may] be.” (7 Cal.App.5th at 561, quoting Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 286.) Husman v. Toyota Motor Credit Corp.
Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, should serve as a sharp reminder to employment practitioners that not all employee oppositional conduct will qualify as protected activity. Husman affirmed a summary judgment on Joseph Husman’s FEHA retaliation claim against his former employer, Toyota Motor Credit Corporation, because his criticisms regarding Toyota’s commitment to diversity did not rise to the level of protected activity.
Husman, a gay man, ran Toyota’s diversity and inclusion program. After he was fired, he claimed that Toyota retaliated against him because of his protected activity in complaining that:
(1) Toyota would not include AIDS Walk LA on the list of the company’s automatic payroll deductions; and (2) while Toyota’s LGBT employees had made some progress, there was still work to be done. With respect to his first complaint, the Court of Appeal found that it did not constitute protected activity because the company’s denial of his request did not violate any FEHA prohibition. With respect to his second complaint, the court found that it fell “short of communicating a particularized complaint about discriminatory treatment of LGBT employees and, instead, was likely understood as an exhortation common among diversity advocates to the effect that, while progress has been made, much work remains to be done.” (Id. at 1194.)
Although Husman was a disappointing retaliation case for plaintiff employment practitioners, Husman is, on the other hand, a terrific summary judgment case for plaintiffs as it effectively hammers the final “nail in the coffin” of the socalled hirerfirer or sameactor inference as an argument on summary judgment. Initially, the Court of Appeal noted that while the sameactor inference was “once commonly relied on by courts affirming summary judgment against a plaintiff alleging discriminatory action, the sameactor inference has lost some of its persuasive appeal in recent years.” (Id. at 1188.) The court then went on to explain that “[p]sychological science on moral licensing reveals that, when a person makes both an initial positive employment decision and a subsequent negative employment decision against a member of a protected group, the second negative decision is more likely to have resulted from bias, not less.” (Id. at 1189.)
Andrew H. Friedman is a partner with Helmer Friedman LLP in Culver City. He received his B.A. from Vanderbilt University and his J.D. from Cornell Law School, where he was an Editor of the Cornell Law Review. Mr. Friedman clerked for the Honorable Judge John T. Nixon (U.S. District Court for the Middle District of Tennessee). Mr. Friedman represents individuals and groups of individuals in employment law and consumer rights cases. Mr. Friedman is the author of Litigating Employment Discrimination Cases (James Publishing 20052016). Mr. Friedman served as Counsel of Record in Lightfoot v. Cendant Mortgage Corp. et al. (Case No. 1056068) where he successfully convinced the U.S. Supreme Court to grant the petition for certiorari that he filed on behalf of his clients. In January 2017, the Supreme Court, in a unanimous decision authored by Justice Sotomayor, reversed the Ninth Circuit and ruled in favor of Mr. Friedman’s clients.
In Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036 (2016), a 6-2 opinion written by Justice Kennedy, the Supreme Court took a (small) step back from that draconian anti-class action bulwark – Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 131 S. Ct. 2541 (2011). The Supreme Court made clear that plaintiffs may use “representative evidence,” not specific as to each individual involved, to show that the group could have had the same legal claim, without having to prove it individually – “a representative or statistical sample, like all evidence, is a means to establish or defend against liability.” It is allowed into a trial, of a class action or other type of case, depending “on the degree to which the evidence is reliable in proving or disproving the elements” of the legal claim at stake, the opinion added. “It follows that the Court would reach too far were it to establish general rules governing the use of statistical evidence, or so-called representative evidence, in all class-action cases.”
“In many cases,” according to the Court majority, “a representative sample is ‘the only practicable means to collect and present relevant data’” to prove that the company or entity being sued was legally at fault. The opinion went on to provide some guidance to when such evidence would be allowed into a class action case: that is, when each member of the class could rely on the sample to establish that he would have won the case, if he had filed it individually, rather than along with others.
California passed a bevy of new employment laws in 2016. Here is a summary of the most important ones.
Minimum Wage Increases (SB 3)
Beginning on January 1, 2017, employers with 26 or more employees will have to pay a minimum wage of $10.50 per hour. This minimum wage rate will gradually increase to $15.00 per hour by 2022 as shown below:
January 1, 2017 – 10.50
January 1, 2018 – 11.00
January 1, 2019 – 12.00
January 1, 2020 – 13.00
January 1, 2021 – 14.00
January 1, 2022 – 15.00
January 1, 2023 – 15.00
Smaller employers (with 25 or fewer employees) will be required to pay the higher minimum wage rates starting in 2018 as shown below:
January 1, 2017 – 10.00
January 1, 2018 – 10.50
January 1, 2019 – 11.00
January 1, 2020 – 12.00
January 1, 2021 – 13.00
January 1, 2022 – 14.00
January 1, 2023 – 15.00
Equal Pay Act Expanded To Cover Race And Ethnicity (SB 1063)
In 2015, the California Legislature enacted and Governor Brown signed Labor Code Section 1197.5 into law which made it the Nation’s most protective equal pay act. Section 1197.5 didn’t just require employers to pay employees of opposite genders equal pay for equal work but, instead, required equal pay for substantially similar work. This year, the Legislature enacted and Governor Brown signed into law amendments to the Equal Pay Act which prohibit wage differences based upon race or ethnicity for substantially similar work when viewed as a composite of skill, effort, responsibility, and performed under similar working conditions. Exceptions include where the payment is made based on any bona fide factor other than sex/race/ethnicity, such education, training, or experience.
Employers Prohibited From Using An Employee’s Prior Salary To Justify Wage Differences (AB 1676)
Employers often try to justify differences in pay between men and women by explaining that they based the differences on the employees’ prior salaries. This new law prohibits employers from using an employee’s prior salary, by itself, to justify any compensation disparity.
Employer’s Required To Provide Employees With Notice Regarding Domestic Violence, Sexual Assault And Stalking Protections (AB 2337)
California law prohibits employers from terminating or in any other manner discriminating or retaliating against an employee who takes time off from work to address domestic violence, sexual assault, or stalking. This new law mandates that employers must inform each employee of his or her rights established under these laws by providing certain information in writing to new employees upon hire and to other employees upon request.
Settlement Agreements Can No Longer Prevent The Disclosure Of Information Regarding Certain Sex Offenses (AB 1682)
Existing law allows parties to enter into a settlement agreement requiring the nondisclosure of information regarding sex offenses. This new law now prohibits parties from entering into settlement agreements (on or after January 1, 2017) that would prevent the disclosure of factual information that establishes a cause of action for civil damages for a felony sex offense, an act of childhood sexual abuse, an act of sexual exploitation of a minor, or an act of sexual assault against an elder or dependent adult.
Employees Of Temporary Services Employers Must Be Paid Weekly (AB 1311)
Current law (Labor Code Section 201.3) requires that temporary services employers must pay their employees weekly and that a violation of these provisions is punishable as a misdemeanor. This new law extends this weekly pay requirement to security guards employed by those who are both private patrol operators and temporary services employers.
Employers Can Not Ask An Applicant To Disclose Certain Criminal History Information (AB 1843)
Section 432.7 of the Labor Code prohibits employers (both public and private) from asking applicants for employment to disclose, or from utilizing as a factor in determining any condition of employment, information regarding an arrest or detention that did not result in a conviction. Certain information concerning a referral or participation in any pretrial or post-trial diversion program is also prohibited from disclosure.
This new law now prohibits an employer from asking applicants for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred in juvenile court. In addition, this law provides that “conviction,” as used in the statute, excludes an adjudication by a juvenile court or any other court order or action taken involving a person who is under the jurisdiction of the juvenile court.
Employers Prohibited From Engaging In Certain Unfair Immigration-Related Practices (SB 1001)
Employers are prohibited from: (a) request more or different documents than are required under federal law; (b) refuse to honor documents or work authorization based upon the status or term of status that accompanies the authorization to work; or (c) reinvestigate or reverify an incumbent employee’s authorization to work. Applicants are authorized to file a complaint with the Division of Labor Standards Enforcement.
California Employees Guaranteed Access To California Law And Forum (SB 1241)
This bill applies to contracts entered into, modified, or extended on or after January 1, 2017 and prohibits an employer from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to adjudicate outside of California a claim (in either litigation or arbitration) arising in California or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. The bill specifies that injunctive relief is available as a remedy and authorizes a court to award reasonable attorney’s fees. The bill exempts a contract with an employee who was represented by legal counsel.
On November 8, 2016, the U.S. Supreme Court heard oral argument in a case Helmer Friedman LLP successfully convinced the high court to hear. The case — Lightfoot v. Fannie Mae, Cendant Mortgage Corporation case (14-1055) — concerns whether individual homeowners who have been wrongly or fraudulently foreclosed upon by Fannie Mae have the right to sue the mortgage giant in the state courts.
According to the Supreme Court, approximately 7,000-8,000 petitions for a writ of certiorari are filed each Term and the Court grants and hears oral argument in merely 80 of those cases – about 1%.
If you want to check out our petition for a writ of certiorari which got the ball in motion for this oral argument, you can read it here http://www.helmerfriedman.com/docs/Petition-Writ_Crystal-Lightfoot-v-Cendant-Mortgage.pdf
If you care to read all of the documents and commentary about the case,you can check it out here http://www.helmerfriedman.com/us-supreme-court-grants-petition-certiorari/
Courtney Abrams interviewed on KFI Radio about Helmer Friedman's lawsuit against Trader Joe's for sexual orientation…
The June 2016 edition of The Advocate Magazine – published by the Consumer Attorneys Association of Los Angeles – features an article which overviews the “best” and “worst” employment cases (from the perspective of the plaintiff employee). The article covers cases from 2015 (and early 2016) including four opinions from the U.S. Supreme Court — in three of which Justice Scalia surprisingly took the side of the employees. The article can read here – http://www.helmerfriedman.com/docs/Best-Worst-Employment-Law-Cases-June-2016-CAALA.pdf
In Green v. Brennan, 2016 WL 2945236 (U.S. May 23, 2016), the U.S. Supreme Court considered when the clock starts to run on a constructive discharge claim. Before discussing the Supreme Court’s decision, a little background information is in order.
Generally, employees only have limited amounts of time to bring their employment-related claims against their employers. How much time is determined by various laws called “statutes of limitation.” For example, in California, employees have one year to file a complaint of discrimination with the California Department of Fair Employment and Housing (“DFEH”). Then, employees have an additional year from the date of the DFEH’s Right-To-Sue Letter to file a lawsuit in court.
Under California state law, the statutes of limitation on a wrongful termination claim begin to run on actual termination date, rather than the date when employer informs the employee that discharge was inevitable. Romano v. Rockwell Internat., Inc., 14 Cal. 4th 479 (1996). Under federal law, the statutes of limitation begin to run when the employer notifies the employee that his or her employment will be ending. Delaware State Coll. v. Ricks, 449 U.S. 250, 259, 101 S. Ct. 498, 504 (1980).
But, when does the clock begin to run on a constructive discharge claim (a claim that the employer forced the employee to resign)? Say that on November 1st the employee gives her employer two weeks notice that she will be resigning on November 15th. Do the statutes of limitations begin to run on November 1st or November 15th? In Green v. Brennan, 2016 WL 2945236 (U.S. May 23, 2016), the U.S. Supreme Court examined this very issue. The Supreme Court concluded that the statutes begin to run on the date the employee gives notice of his or her intent to resign (rather than his or her last day of employment).
Green v. Brennan involved a former U.S. Postal Service Employee, Marvin Green, who claimed that he was discriminated against on the basis of his race (African-American). Green worked for the Postal Service for nearly 35 years. Green complained that he was denied a promotion because of his race. Not surprisingly, following his complaint, his relations with his supervisors crumbled. Relations hit a nadir on December 11, 2009, when two of Green’s supervisors accused him of intentionally delaying the mail—a criminal offense. On December 16, 2009, Green and the Postal Service signed an agreement whereby the Postal Service promised not to pursue criminal charges in exchange for Green’s promise to leave his post. The agreement gave Green a choice: effective March 31, 2010, he could either retire or report for duty in another location at a considerably lower salary. Green chose to retire. He submitted his resignation to the Postal Service on February 9, 2010, effective March 31.
Eventually, Green contacted an Equal Employment Opportunity (EEO) counselor to report an unlawful constructive discharge. He contended that his supervisors had threatened criminal charges and negotiated the resulting agreement in retaliation for his original complaint. He alleged that the choice he had been given effectively forced his resignation in violation of Title VII.
Subsequently, Green filed suit in the Federal District Court for the District of Colorado, alleging, inter alia, that the Postal Service constructively discharged him. The Postal Service moved for summary judgment, arguing that Green had failed to make timely contact with an EEO counselor within 45 days of the “matter alleged to be discriminatory,” as required by 29 CFR § 1614.105(a)(1). The District Court granted the Postal Service’s motion for summary judgment. The Tenth Circuit affirmed holding that Green’s claim was time-barred because the date Green signed the settlement agreement was the Postal Service’s last discriminatory act triggering the filing deadline that Green failed to meet.
In a 7-1 decision, the Supreme Court held the time period for filing a constructive discharge claim “begins running only after the employee resigns.” The Court explained that this means the clock begins to run when the employee gives definite “notice” of his or her resignation, not the date the resignation is effective. In other words, if an employee gives two weeks notice, the clock starts to run on the date of the notice, not two weeks later on the employee’s last day of work.
Employees considering resignation due to intolerable working conditions should consult with employment counsel before submitting their resignation. The courts have made it very difficult for employees to successfully bring a constructive discharge claim. Employment counsel can help employees properly place their employers on notice as to the intolerable working conditions.
Governor Jerry Brown tapped one of the state’s top young labor lawyers, Kevin Kish, 38, to be director of California’s Department of Fair Employment and Housing (DFEH), the largest civil rights agency in the nation. He replaces Phyllis Cheng, a 2008 Schwarzenegger appointee who resigned in October.
Kish graduated with a Bachelor of Arts degree in sociology/anthropology from Swarthmore College and graduated with a Juris Doctor from Yale Law School in 2004. He was admitted to the State Bar of California later in the year.
After graduating law school, Kish, a Democrat, joined Bet Tzedek Legal Services in Los Angeles, one of the nation’s premier public interest law firms. He left in 2005 to clerk for U.S. District Myron Thompson for the Middle District of Alabama for a year, but returned to the firm in 2006 after receiving a Skadden Fellowship. The Los Angeles Times described the Skadden Foundation as “a legal Peace Corps.”
Two years later, Kish became director of the firm’s Employment Rights Project, leading its employment litigation, policy and outreach initiatives. He focused on illegal retaliation against low-wage workers and cases involving human trafficking. But the firm handles a broad range of cases involving consumer rights, elder law, housing and public benefits.
In 2011, Kish was co-counsel in a class-action lawsuit that won a $1million settlement for Los Angeles carwash workers over wage theft. Four carwash company owners agreed to compensate around 400 workers for routinely working 10-hour days for less than half the minimum wage. Some of the workers toiled for just tips.
Kish and lawyers from two other firms won a $21 million settlement from Walmart contractor Schneider Logistics Transloading and Distribution Inc. in May over the retailer’s alleged abuse of minimum wage and overtime payments to warehouse workers in Eastvale, California. The National Law Review found the settlement amount “staggering” but said its true significance lay in the “courts’ willingness to untangle multi-level business operations and hold all involved entities liable for wage and hour violations.”
Kish has been an adjunct professor of law at Loyola Law School in L.A. since 2012. He developed and teaches a seminar and clinical course for students to “investigate, mediate and recommend outcomes for employment retaliation claims.”
He speaks Spanish, Italian and French.
To Learn More:
Law Professor Chosen to Take over California Department of Fair Employment and Housing (by Jeremy B. White, Sacramento Bee)