Employees Lose Labor Claim for Not Performing Labor Within Usual Course of Business

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Employees Lose Labor Code § 2810.3 Claim Where They Were Not Performing Labor Within The “Usual Course Of Business” Of The “Client Employer”

Morales-Garcia v. Better Produce, Inc., 2023 WL 3749314 (9th Cir. 2023)

In 2014, California enacted Labor Code § 2810.3 to protect workers whose labor has been outsourced to a labor provider. Under the statute, the outsourcing entity, known as a “client employer,” is liable for the laborers’ wages if the laborers’ work is within the outsourcers’ “usual course of business.”

In the present case, the plaintiffs are agricultural workers hired by strawberry growers (“the Growers”) to pick the fruit that was then turned over to the defendants – Red Blossom Sales, Inc. and Better Produce, Inc. (“the Marketers”) for distribution. The Marketers cooled and sold the berries principally to large retail grocery chains. The Marketers conducted their cooling and distribution operations on premises that were close to but separate from the farms.

As happens quite frequently with agricultural workers (and, hence, the need for Labor Code § 2810.3) the Growers stopped paying the plaintiffs and later filed for bankruptcy. The plaintiffs sued the Growers and the Marketers as joint employers under California and federal law. The plaintiffs also sued the Marketers as client employers under California Labor Code § 2810.3. The district court ruled for the Marketers on all theories. The plaintiffs appealed only with respect to the Marketers’ liability under § 2810.3.

On appeal, the Ninth Circuit affirmed, explaining that because the plaintiffs were not performing labor within the Marketers’ “usual course of business” – which is defined as “the regular and customary work of a business, performed within or upon the premises or worksite of the client employer Labor Code § 2810.3(a)(6) – the Marketers were not liable as client employers under California Labor Code § 2810.3.

Over Lawyering Renders Arbitration Agreement Unenforceable

Non-compete agreements something akin to indentured servitude.

Arbitration Agreement’s Impermissible Waiver Of Employee’s PAGA Claims Invalidated The Entire Agreement Under Its Unambiguous “Savings Clause And Conformity Clause” – Over Lawyering Renders Arbitration Agreement Unenforceable

Westmoreland v. Kindercare Education LLC, 90 Cal.App.5th 967 (2023)

Rochelle Westmoreland was employed by Kindercare Education LLC. As a condition of employment, when Westmoreland was hired, Westmoreland electronically signed a “Mutual Arbitration Agreement Regarding Wages and Hours.” Although the agreement expressly excludes any claims that cannot be required to be arbitrated as a matter of law, it also contains a provision described as a “Waiver of Class and Collective Claims” providing that covered claims will be arbitrated only on an individual basis and that the arbitrator may not adjudicate form of a class, collective, or representative claims. Complicating matters further, the arbitration agreement also contains a so-called “Savings Clause & Conformity Clause” requiring that if any provision of the agreement is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate the mandatory provision of law, and/or the unenforceable or conflicting provision shall be automatically severed and the remainder of the agreement shall not be affected unless the Waiver of Class and Collective Claims is found to be unenforceable in which case the entire agreement is rendered invalid and any claim brought on a class, collective, or representative action basis must be filed in court of competent jurisdiction. This “Savings Clause & Conformity Clause” is referred to as the “Poison Pill.”

When Westmoreland was fired, she filed a representation action under PAGA. Kindercare moved to compel arbitration of Westmoreland’s individual non-PAGA claims and to stay her PAGA claim. The trial court granted the motion. Westmoreland sought a writ of mandate. The Court of Appeal held that the unenforceable PAGA waiver was not severable from the rest of the agreement and, therefore, it rendered the entire agreement unenforceable. The California Supreme Court and then the United States Supreme Court rejected Kindercare’s subsequent petitions for review and for certiorari.

Kindercare filed a renewed motion to compel arbitration and then, following Viking River, argued that Viking River compelled a finding that Westmoreland’s PAGA claims must be divided: the “individual” PAGA claim sent to arbitration and the “representative” PAGA claim pursued in court. The Court of Appeal would have agreed but for Kindercare’s Poison Pill:

Had Kindercare simply included a waiver of representative claims in its arbitration agreement and not included the poison pill at the end of the agreement, the result here could have been substantially similar to that in Viking River – the PAGA claims could be divided: the “individual” PAGA claim sent to arbitration and the “representative” PAGA claim pursued in court.
 
Ironically, the language and structure of Kindercare’s arbitration agreement necessitates a result similar to the “claim joinder” rule in PAGA that Viking River deemed problematic when imposed by state law. The poison pill effectively prevents us from sending Westmoreland’s “individual” claims under PAGA (representing the State of California but pursuing “individual” remedies based on the plaintiff’s status as a former employee) to arbitration while allowing litigation in court of her “representative” claims under PAGA, which involve the rights of other “aggrieved employees.”
 
The arbitration agreement, in this case, sought to address the uncertainty in the law in 2016 concerning the waiver of representative claims under PAGA by using the poison pill provision to prevent litigation on parallel tracks if it ever became clear that even one of Westmoreland’s potential class or representative claims could not be waived and would have to be pursued in court. The provision is unambiguous and “presents an all-or-nothing proposition.” The provision leaves no room for Kindercare to choose to bifurcate Westmoreland’s claims between arbitration and court; it instead invalidates the agreement.
 
In sum, having exercised our discretion to hear Kindercare’s appeal as a writ of mandate, we conclude that the arbitration agreement is invalid by operation of the unambiguous “Savings Clause and Conformity Clause.” As a consequence of Kindercare’s drafting decisions, and absent further stipulation between the parties, the arbitration agreement is “invalid” and so Kindercare must litigate all of Westmoreland’s claims in court.

Individual But Not Representative Claims Compelled To Arbitration

In-N-Out Burgers

Piplack v. In-N-Out Burgers, 88 Cal.App.5th 1281 (2023)

Former employees of In-N-Out Burgers, on their own behalf and on behalf of similarly aggrieved employees, brought an action against In-N-Out Burgers seeking civil penalties under the Labor Code Private Attorneys General Act for In-N-Out Burgers’s alleged practices of requiring employees, without reimbursement, to purchase and wear certain articles of clothing and to purchase and use special cleaning products to maintain the clothes. In reliance on Viking River Cruises, Inc. v. Moriana, ––– U.S. ––––, 142 S.Ct. 1906 (2022), In-N-Out Burgers filed a motion to compel arbitration, arguing that Viking River requires plaintiffs’ individual PAGA claims to be arbitrated and all remaining representative claims dismissed for lack of standing. The trial court summarily denied In-N-Out Burgers’ motion to compel arbitration. In-N-Out Burgers appealed.

The Court of Appeal concluded that the arbitration agreements required individual PAGA claims to be arbitrated and that In-N-Out Burgers did not waive its right to compel arbitration through its litigation conduct. The Court of Appeal also held that Viking River’s requirement that the plaintiff’s individual claims under PAGA be compelled to arbitration did not necessarily deprive the plaintiff of standing to pursue representative claims as an aggrieved employee.

Jury Could Find Termination Substantially Motivated by Disability

Disability Discrimination Lawyers of Helmer Friedman LLP have extensive knowledge in this area of law.

Although Employer Had Tentatively Placed Employee RIF List Before Becoming Aware of Her Disability, It Did Not Terminate Her Employment Until After It Was Aware Of Her Disability – A Reasonable Jury Could Find That Employee’s Ultimate Termination Was Substantially Motivated By Her Disability

Lin v. Kaiser Found. Hosps., 88 Cal.App.5th 712 (2023)

Suchin I. Lin was employed by Kaiser as an IT Engineer. Lin became disabled as a result of a fall in the workplace which caused her to suffer an injury to her left shoulder. A doctor issued a work status report placing Lin on modified duty with restrictions requiring Lin to use a sling and to limit the use of her left arm. The doctor also indicated that surgery might be necessary. As part of a round of employee layoffs Kaiser planned, at least tentatively, to terminate Lin before Lin became disabled. Following her disability, Kaiser went forward with her layoff. Lin sued for disability discrimination. Kaiser filed a motion for summary judgment, arguing that it was entitled to summary adjudication of Lin’s disability discrimination and retaliation claims because the decision-maker had made the decision to eliminate Lin’s position in a RIF before Lin sustained her disability. Lin opposed the motion arguing that, while her name was selected for the initial RIF list prior to her disability, this “proposed” list was “subject to further review,” as reflected in the list’s gradual reduction from 31 employees to the 17 who were ultimately laid off. She further argued that her ultimate termination was a result of the decision-maker’s reliance on her supervisor’s post-disability assessment of her, particularly a post-disability email to the decision-maker rating her performance much lower than that of her teammates. The trial court granted Kaiser’s motion.

On appeal, the Court of Appeal reversed. The Court of Appeal held that Kaiser’s plan to terminate Lin before she became disabled, by itself, was (of course) not discrimination against Lin because of her disability. But Kaiser did not complete its layoff plans—or, a reasonable jury could find, make its final determination to terminate Lin—until after Lin had become disabled. The Court of Appeal found that there was evidence from which a reasonable jury could conclude that Kaiser’s ultimate decision to terminate Lin was motivated, at least in substantial part, by concerns Kaiser had about Lin’s disability. The Court of Appeal found the following facts important in its decision:

  • Before Lin sustained her disability, neither her then-current supervisor nor any prior supervisor had given her a negative performance evaluation.
  • After Lin sustained her disability, her then-current supervisor began giving her negative feedback and a poor performance evaluation.
  • Lin’s then-current supervisor’s criticisms, in large part, revolved around his concerns about her “slow delivery” and her “pace of execution” – concerns that a jury could find stemmed directly from her disability.

Lin’s then-current supervisor agreed to Lin’s request for light-duty work as a form of accommodation for her disability (but he never actually provided her with light-duty work). His agreement to assign Lin lighter tasks supported a reasonable inference that he believed her disability prevented her from handling her usual workload.

Employee Loses Pregnancy Discrimination Claim Failed to Prove Related Condition

Pregnancy discrimination lawyers Beverly Hills Helmer Friedman LLP.

Employee Loses Pregnancy Discrimination Claim Because She Failed To Carry Her Burden Of Proving That She Had A Condition Related To Pregnancy; Could Perform The Essential Functions Of The Job; And Was Denied A Reasonable Accommodation – The Moral Of This Case Is To Never, Ever Use Kaiser As Your Physician

Lopez v. La Casa de Las Madres, 89 Cal.App.5th 365 (2023)

Gabriela Lopez was employed by La Casa De Las Madres, a non-profit organization that provides services to women and children who are victims of domestic violence. In April, Lopez notified La Casa that she was pregnant and that her expected due date was in September. She was placed on modified work duty a few months before her due date, and several weeks before her due date, she was placed off work due to conditions or symptoms relating to her pregnancy.

After giving birth, Lopez experienced complications and her doctor (Kaiser) informed La Casa that Lopez had a “moderate-severe” disability that affected her ability to perform her job by limiting her from engaging in activities that are “stress producing or require sustained attention,” and those that “require the making of important or significant decisions.” Kaiser stated that this disability necessitated two modifications to Lopez’s work duties: (1) time off to allow Lopez to continue mental health treatment, both groups and individual therapy; and (2) flexible/shortened workdays if the patient finds the nature of the work or stress of the work overwhelming and triggering of severe anxiety/depressive symptoms. On a section of the form inquiring how long these limitations would be necessary, Kaiser stated, “It is unknown,” and when asked to provide a phone number for follow-up questions, Kaiser stated, “NA, patient had to sign Kaiser release of information and completing this form was the only authorized action.”

La Casa made a determination that it could not accommodate the limitations that Campion proposed. It could provide time off for therapy but could not function indefinitely without a shelter manager. Nor could that job be performed without making significant decisions and facing stressful situations at unpredictable times.

La Casa notified Lopez that it was unable to accommodate the limitations proposed by Kaiser. Instead, La Casa offered to extend Lopez’s leave for a short time longer and, upon her return to work, to assign her to a “Data Entry Specialist position,” which had flexible hours and did not involve stressful tasks. The position paid an hourly wage, which was less pay than Lopez received as a shelter manager, but Lopez was offered higher pay than others who had filled the position. This data-entry position was offered as a “temporary accommodation,” with the expectation that Lopez would return to her shelter management role.

Lopez advised La Casa she was not interested in the data-entry position and that she was able to return to her role as a shelter manager. Lopez submitted another health care provider form, signed by Kaiser. This partially completed form contained the following statement: “Advised by patient to just complete modification section for employer.” In answer to a question about proposed modifications, Kaiser stated, “Modifications recommended include time off to continue individual therapy sessions and group therapy.” Kaiser reported that it was “unknown” how long modifications would be necessary.

La Casa advised Lopez that the form was incomplete and asked Lopez to submit a complete, updated form. Lopez submitted another form from Kaiser, which stated that it had not seen Lopez in a month because Lopez’s insurance had lapsed. Therefore, Kaiser was unable to assess the severity of Lopez’s disability, whether Lopez was able to perform job duties or the duration of any job limitations. After Lopez submitted this form, she did not respond to further repeated inquiries from La Casa.

A week or so later, La Casa sent a letter to Lopez stating that La Casa considered Lopez to have “elected to discontinue her employment.” That same day, Lopez went to La Casa’s administrative office to talk to the Executive Director without an appointment, but the ED was not there. La Casa introduced evidence that Lopez was angry, threw her keys on an employee’s desk, and stormed away, at which point La Casa considered her to be a former employee. Lopez testified that she left her keys with the employee because she thought she had been terminated, but she acknowledged that La Casa never asked her to turn in her keys. Regardless, the evidence showed that Lopez never stated that she resigned or submitted a written resignation, and no one at La Casa told Lopez she was terminated.

Lopez sued for a pregnancy discrimination claim under section 12945, subdivision (a)(3)(A). Following the bench trial, the trial court found that Lopez failed to establish three elements essential to this claim: that she (1) “had a condition related to pregnancy”; (2) “could perform the essential functions of her job”; and (3) “was denied a reasonable accommodation,” as requested on the advice of a health-care provider.

There was evidence that after Lopez had her baby and exhausted her pregnancy-disability leave, she sought an extension of her leave, but the basis for that extension was not established at trial. No medical professional testified, no medical records were offered into evidence, and Lopez “repeatedly objected” to evidence regarding the “medical condition” that formed the basis of her claim.

Regarding the first finding, there was evidence that after Lopez had her baby and exhausted her pregnancy-disability leave, she sought an extension of her leave, but the basis for that extension was not established at trial. No medical professional testified, no medical records were offered into evidence, and Lopez “repeatedly objected” to evidence regarding the “medical condition” that formed the basis of her claim. The forms Kaiser signed did not contain a diagnosis and, although they assert a mental-health-related disability, do not so much mention pregnancy. La Case put on evidence that it was unaware of the reason Lopez sought to extend her leave. Lopez testified that after her daughter was born, she felt sad and depressed, attended therapy, and was given medication, which, the court found, suggested that Lopez may have had post-partum depression, but Lopez was impeached with evidence that she was depressed and experiencing stress before her pregnancy leave began. For all of these reasons, the court concluded that Lopez failed to establish that the condition for which she sought accommodation was pregnancy related.

Even assuming that La Casa “inferred” Lopez was suffering from pregnancy-related depression, Lopez failed to establish that “she could perform the essential functions of her job with a reasonable accommodation,” the court found. The court based this finding on evidence that Kaiser had “advised against activities that produced stress and that required making important decisions” and that the shelter-manager job “was inherently stressful and required quick decisions that sometimes meant the difference between life and death.” In reaching this conclusion, the court found that Lopez’s testimony that she did not find the duties of the shelter manager to be stressful was not credible.

Finally, the court found that Lopez failed to prove that she was denied a reasonable accommodation. The court found that La Casa would have allowed Lopez time off to attend therapy and that a “flexible or shortened workday” if Lopez found her work stressful was not a reasonable accommodation. The court based this ruling on evidence that La Casa had discussed options that would have enabled them to accommodate this second suggestion of Kaiser’s, including hiring a “shadow’ shelter manager” to step in if Lopez had to leave work due to stress or anxiety. La Casa had concluded this solution was “unworkable” for multiple reasons, including the cost of paying two people to do the same job and the confusion for staff of having two managers. La Casa was also concerned that effective communication would be critical for a shadow manager to succeed, and Lopez had a documented history of poor communication with her immediate supervisor, Ms. Bergson. During the period Lopez was on leave, Bergson had assumed many of Lopez’s duties with assistance from others, but that accommodation could not be sustained indefinitely, the court found.

The court also based its ruling on evidence that La Casa offered Lopez the temporary assignment of a data-entry position, which the court found was a reasonable accommodation, and that Lopez told La Casa she would rather quit than take that position. The court also found no evidence of a discriminatory motive by La Casa, but rather that “La Casa expected Ms. Lopez to return to her job as a shelter manager and made numerous efforts to effect that result.”

Lopez appealed, arguing that the trial court committed an error of law by placing the burden on Lopez to prove that (1) she had a condition related to pregnancy and (2) she could otherwise perform the essential functions of the shelter-manager position. According to Lopez, these two elements do not apply to a claim for pregnancy discrimination that is premised on a violation of section 12945(a)(3)(A). The Court of Appeal rejected these arguments holding: “we find no support for Lopez’s construction of section 12945(a)(3)(A) in the statutory language, FEHC regulations or pertinent case law, and accordingly we reject her contention that the test the trial court used to evaluate her pregnancy discrimination claim requires us to reverse the judgment.”

Hostile Work Environment Claims Based on Off Work Communications

Rite aid pharmacy

Hostile Work Environment Claim Can’t Be Based On Off Worksite, Off Work Hours Communications Between the Employee And A Supervisor With Whom The Employee Was Friends

Atalla v. Rite Aid Corp., 89 Cal.App.5th 294 (2023)

Hanin Atalla and Erik Lund were friends. At some point after their friendship began, they both went to work for Rite Aid. Lund was a District Manager for Rite Aid, and Atalla was a pharmacist and was directly supervised by her store’s pharmacists. Her store’s pharmacist reported to Lund.

At Rite Aid, their friendship continued and, as part of that friendship, they continued to text (via their personal cell phones) frequently about all kinds of things, including travel and vacations, exercise, weight loss, food, restaurants, getting together for meals, religious observances, family and relatives, their respective spouses, pets, social media, drinking and alcohol, birthdays, fashion, and work issue. They exchanged hundreds of texts. They would go out for coffee and meet up for lunch. Lund and his wife joined Atalla and her husband (and another couple) for dinner to celebrate Atalla’s birthday.

In their final text exchange, which occurred on a Friday night after 11:00 p.m. and after Lund had gotten drunk, Lund texted Atalla to ask how her day went. Atalla responded with texts stating, “I think it was ok, tough because I was fighting my cold but I’m picking it up.” Lund replied, “You are my girl so conquer”; Atalla texted back, “I’m trying my best.” Atalla added: “The senior pharmacist says once I’m comfortable with everything she would love for me to cover for her … that she trusts me.” Lund responded, “That is high praise.” Atalla replied, “But I never know if people are being nice or if they’re serious.”

Lund then sent Atalla a photo of five bottles of wine. Atalla replied, “I’m doing the same with vodka, clearing my cold the Russian way.” Lund texted, “Great choice,” and sent a photo of a bottle of wi e. Later that evening, Lund texted Atalla a “Live Photo” of him masturbating. Atalla—who was in her living room, sitting next to her husband on the couch, when she received the text—could tell at first glance it was an image of his penis. Atalla put her phone face down on her coffee table for 10 minutes, then went into the bathroom and viewed the Live Photo in private so her husband would not see it. While she was in the bathroom, Atalla received another text message from Lund that said, “I am so drunk right now.” Atalla deleted that text and the Live Photo.

Lund then sent another text stating, “Meant to send to wifey,” followed by a text that said, “Going to go die.” Atalla responded, “It’s ok, I deleted it before I end up in a divorce.” Atalla called her friend and went into her bedroom. While on the phone with her friend, Atalla received texts from Lund stating, “Both of us” and “Race to the bottom,” accompanied by a photo of his penis. Atalla texted Lund, “Erik, stop please,” to which he replied, “You are right.” That was the end of the exchange.

The next morning, Lund texted Atalla, “Wanted to apologize I was embarrassing drunk last night.” Atalla did not respond.

On Sunday, January 6, 2019, Atalla called her training pharmacist and said she was not feeling well and would not be able to work that week. On Monday, January 7, 2019, Lund texted Atalla asking whether she was still sick, but Atalla did not respond and blocked his number.

On January 10, 2019, Atalla’s counsel sent a letter to Rite Aid asserting a claim of sexual harassment. Waterman’s letter was forwarded to the in-house counsel for Rite Aid, Emily Edmunds.

Edmunds spoke with Atalla’s counsel on January 11, 2019. Atalla’s counsel told Edmunds that Lund sent Atalla a video of himself masturbating and a still picture of his penis. Atalla’s counsel also advised that Atalla “will not be returning to work at Rite Aid.” Atalla’s counsel said he had already obtained a right-to-sue letter and would be filing a complaint that coming Monday, January 15, 2019. He observed the question was about damages and proposed early mediation.

Edmunds immediately directed Divisional Human Resources Leader Rodney Lachin to investigate Atalla s complaint. Lachin met with Lund on the same day, January 11, 2019. Lund admitted sending Atalla the photo and video of his penis. Lachin handed Lund a copy of Rite Aid’s anti-retaliation policy and placed him on suspension. Rite Aid investigated whether there were any other complaints of sexual harassment against Lund; the investigation revealed none.

Rite Aid made the decision to terminate Lund on Monday, January 14, 2019. That same day, Edmunds emailed a letter to Atalla’s counsel advising of Lund’s termination and assuring them, “Ms. Atalla remains an active employee in our system, and she is welcome to return to work.” Edmunds’s letter invited Atalla to call the pharmacy scheduler so she could get back on the schedule (Edmunds provided the number).

Neither Atalla’s counsel nor Atalla responded to Edmunds’s letter, nor did they indicate in any way that Atalla intended to return to work at Rite Aid at some point. Atalla did not contact the scheduler as Edmunds had suggested, nor did she communicate to anyone at Rite Aid that she was uncomfortable doing so or that she needed a leave of absence.

On January 16, 2019, Edmunds spoke to Atalla’s other counsel. During the call, Atalla’s other counsel reiterated that Atalla would not be returning to work at Rite Aid.

Edmunds waited the rest of the week but heard nothing further. Based on the statements of Atalla’s counsel and the lack of any communication to the contrary, Edmunds concluded that Atalla had no intention of returning to work at Rite Aid and, rather, had decided to resign and pursue litigation. Accordingly, on January 21, 2019, Atalla’s status in Rite Aid’s system was changed to “resignation with the possibility of re-hire.” On January 22, 2019, Rite Aid sent Atalla a separation notice, along with her vacation payout.

After Atalla received the separation notice, she did not communicate with anyone at Ride Aid for any needed clarification. She never contacted Rite Aid to indicate she wanted to return to work.

Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla’s sexual harassment claims, the issue below was, and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts such that Rite Aid could properly be held strictly liable for that conduct.

Atalla then filed sexual harassment, failure to prevent sexual harassment, wrongful constructive termination, discrimination, and retaliation action against her Rite Aid. Rite Aid filed a summary judgment motion. The trial court granted summary judgment in favor of the Rite Aid defendants as to all of Atalla’s claims. Atalla appealed. On appeal, the Court affirmed:

Here, there is no dispute that Lund was a supervisor. With respect to summary judgment on Atalla’s sexual harassment claims, the issue below was, and the issue on appeal is, whether Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts such that Rite Aid could properly be held strictly liable for that conduct.

The trial court concluded Atalla had not raised a triable issue of fact as to the required showing that Lund was acting in the capacity of a supervisor when he sent the inappropriate texts.

We agree with the trial court conclusion that “[a]s opposed to a constructive termination, the evidence shows that plaintiff resigned her position.”

We affirm the trial court’s conclusion that Atalla has not raised a triable issue of material fact with respect to the required showing that Lund was acting in the capacity of a supervisor in the text exchange in which he sent the inappropriate texts. Rather, as the trial court found, Lund and Atalla had an extensive texting relationship, and their late-night text exchange, which occurred outside the workplace and outside of work hours, was spawned from a personal exchange that arose from a friendship between them. Summary judgment is, therefore, proper as to Atalla’s sexual harassment claims.

The Court of Appeal also affirmed the trial court’s grant of summary judgment on Atalla’s constructive discharge claim:

We agree with the trial court conclusion that “[a]s opposed to a constructive termination, the evidence shows that plaintiff resigned her position.”

Here, upon being notified of Lund’s conduct, Rite Aid took immediate steps to remedy the situation. Rite Aid immediately investigated the sexual harassment claim reported by Atalla’s attorneys, terminated Lund expeditiously, advised Atalla’s attorneys that Lund had been fired, invited Atalla back to work, and urged her to contact the scheduler to get back on schedule. Atalla’s attorneys, however, repeatedly advised Edmunds that Atalla would not be returning to work at Rite Aid. Nor was any evidence adduced that Rite Aid intentionally created or knowingly permitted intolerable working conditions that left Atalla with no choice but to resign.

 

AB 5 May Violate Equal Protection Rights Of Independent Contractor Drivers

Constitutional rights lawyers of Helmer Friedman LLP.

AB 5 May Violate Equal Protection Rights Of Independent Contractor Drivers And The Gig Companies That Retain Them

Olson v. State of Cal., 62 F.4th 1206 (9th Cir. 2023)

Lydia Olson, Miguel Perez, Uber, Inc., and Postmates, Inc. sued to enjoin the State of California from enforcing California Assembly Bill 5, as amended by California Assembly Bills 170 and 2257, against them. A.B. 5, as amended, codified the “ABC test” adopted by the Supreme Court of California in Dynamex Operations West, Inc. v. Superior Court of Los Angeles, 4 Cal. 5th 903 (2018). A.B. 5, as amended, however, incorporated numerous exemptions into its provisions.

Plaintiffs requested an injunction on the grounds that—as applied to Plaintiffs—A.B. 5, as amended, violates: the Equal Protection Clauses, the Due Process Clauses, the Contract Clauses, and the Bill of Attainder Clauses of the United States and California Constitutions.

The district court denied the plaintiffs’ motion for a preliminary injunction and dismissed their lawsuit.

The Ninth Circuit reversed the district court’s dismissal of the plaintiffs’ equal protection claims but affirmed the dismissal of the due process, contract clause, and bill of attainder claims. The Ninth Circuit then remanded the district court’s order denying Plaintiffs’ motion for a preliminary injunction for reconsideration.

Absent Employer Policy Employees May Have Privacy Interest in Emails Over Employer’s Email System

Employees may have a right to privacy at work.

Absent Employer Policy Of Either Monitoring Individual Email Accounts Or Prohibiting Use Of The Company’s Email Account For Personal Communications, Employees May Have Privacy Interest In Emails Over Employer’s Email System

Militello v. VFARM 1509, 89 Cal. App. 5th 602 (2023)

Shauneen Militello, Ann Lawrence Athey (Lawrence), and Rajesh Manek were the co-owners of Cannaco Research Corporation (CRC), a licensed manufacturer and distributor of cannabis products. All three individuals served as officers of CRC until Lawrence and Manek voted to remove Militello from her position. Militello sued Lawrence, Manek, and others, including Joel Athey, Lawrence’s husband, in a multicount complaint alleging causes of action for breach of contract, breach of fiduciary duty, fraud, and other torts.

Lawrence moved to disqualify Militello’s counsel, Spencer Hosie and Hosie Rice LLP, on the ground Militello had impermissibly downloaded from Lawrence’s CRC email account private communications between Lawrence and Athey, protected by the spousal communication privilege (Evid. Code, § 980), and provided them to her attorneys, who then used them in an attempt to obtain a receivership for CRC in a parallel proceeding. Militello opposed the motion, arguing in part Lawrence had no reasonable expectation her electronic communications with her husband were confidential because she knew Militello, as a director of CRC, had the right to review all communications on CRC’s corporate network. Militello also argued disqualification is not appropriate when a lawyer has received the adverse party’s privileged communications from his or her own client. The trial court granted the motion, finding that Militello had not carried her burden of establishing Lawrence had no reasonable expectation her communications with her husband would be private, and ordered the disqualification of Hosie and Hosie Rice.

The Court of Appeal affirmed the finding that Lawrence reasonably expected her communications were, and would remain, confidential. And while the Court of Appeal acknowledged that disqualification may not be an appropriate remedy when a client simply discusses with his or her lawyer improperly acquired privileged information, counsel’s knowing use of the opposing side’s privileged documents, however, obtained, is a ground for disqualification.

R3 Government Solutions to Pay $82,500 to Settle Discrimination and Retaliation Lawsuit

Age discrimination is a violation of Title VII of the Civil Rights Act of 1964.

R3 Government Solutions, LLC, a federal contractor, has agreed to pay $82,500 and provide other relief to settle a race discrimination and retaliation case filed by the U.S. Equal Employment Opportunity Commission (EEOC). The lawsuit claimed that R3 had discriminated against and retaliated against a Black woman who worked for the company as a recruiter. The EEOC alleged that the recruiter opposed R3’s discriminatory hiring practices, which included rejecting candidates based on age and disadvantaging them due to their race or national origin. The company fired her after she spoke out against these hiring practices.

This alleged conduct is a violation of Title VII of the Civil Rights Act of 1964, which prohibits retaliation and race discrimination, as well as the Age Discrimination in Employment Act of 1967, which prohibits retaliation against employees who oppose age discrimination. The Equal Employment Opportunity Commission (EEOC) filed a lawsuit in the U.S. District Court for the Eastern District of Virginia after trying to reach a pre-litigation settlement through its administrative conciliation process.

It is important to hold employers accountable when they retaliate against employees who oppose discriminatory hiring practices. The U.S. Equal Employment Opportunity Commission (EEOC) is committed to preventing and remedying discrimination and retaliation in the workplace. Retaliation against employees who speak up against discriminatory conduct cannot be tolerated. The EEOC is dedicated to seeking relief for workers who take a stand against their employer’s discriminatory behavior.

Ministerial Exception Application When Plaintiff Position Does Not Include Religious Instruction or Activities

Suffer age discrimination, workplace violations - Helmer Friedman LLP.

Triable Issues As To Whether Ministerial Exception Applied To Plaintiff’s Position Because She Did Not Teach Religion To The Students Nor Did She Lead The Students In Any Religious Activities Or Services

Atkins v. St. Cecilia Catholic Sch., 90 Cal.App.5th 1328 (2023)

Francis Atkins, a former employee of St. Cecilia Catholic School, a religious elementary school, sued for age discrimination in violation of FEHA. The Superior Court granted St. Cecilia’s motion for summary judgment on the grounds that Atkins’ suit was barred by the ministerial exception. Atkins appealed.

Initially, Atkins argued that St. Cecilia waived the ministerial exception as an affirmative defense by failing to assert it in its answer. The Court of Appeal rejected that argument:

 

The Supreme Court has determined that the ministerial exception operates as an affirmative defense to an otherwise cognizable claim. Ordinarily, an affirmative defense must be alleged in the answer, or it is waived. This does not mean, however, that the failure to plead an affirmative defense in the answer necessarily precludes the defendant from raising it in a motion for summary judgment. Instead, courts generally have allowed an affirmative defense to be asserted for the first time in a motion for summary judgment absent a showing of prejudice. As explained by one appellate court: Given the long-standing California court policy of exercising liberality in permitting amendments to pleadings at any stage of the proceedings, we believe that a party should be permitted to introduce a defense in a summary judgment procedure so long as the opposing party has adequate notice and opportunity to respond.
 
In this case, Atkins has not shown prejudice from St. Cecilia’s failure to allege the ministerial exception as an affirmative defense in its answer. As St. Cecilia explained in its motion to set aside the scheduling order, at the time the parties stipulated to continue the trial date (but not the deadline for filing a motion for summary judgment), the Supreme Court had not yet issued its decision in Our Lady of Guadalupe. Accordingly, at that time, St. Cecilia did not believe it had grounds to seek summary judgment based on the ministerial exception. Once the Supreme Court issued the decision in that case, St. Cecilia gave Atkins notice of its intent to assert the defense when it filed the motion to set aside, seeking permission to move for summary judgment based on the exception. Atkins had an opportunity to oppose St. Cecilia’s request on both substantive and procedural grounds. After the trial court granted St. Cecilia permission to raise the ministerial exception in a summary judgment motion, Atkins had a full opportunity to oppose that motion on the merits.
 
Atkins asserts that she suffered prejudice because discovery had closed by the time St. Cecilia filed its summary judgment motion, and thus, she did not have an opportunity to conduct discovery that was tailored to address the ministerial exception. As St. Cecilia points out, however, Atkins could have asked the trial court to continue the summary judgment hearing to allow her to conduct additional discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). While Atkins argued in her opposition that she was prejudiced by St. Cecilia’s failure to raise the ministerial exception in its answer, she never requested a continuance so that she could seek any necessary discovery. On this record, St. Cecilia did not waive the ministerial exception as an affirmative defense.

 

Atkins v. St. Cecilia Catholic School, 90 Cal.App.5th 1328 (2023)(cleaned up).

Next, Atkins argued that the trial court erred in granting summary judgment to St. Cecilia because her former job position with the school does not fall within the scope of the ministerial exception. Atkins specifically asserts that her job duties as both an office administrator and an art teacher were secular in nature and did not involve the teaching of religion to the students. St. Cecilia contended that Atkins is subject to the exception because the school entrusted her with educating and forming students in the Catholic faith, and Atkins fully embraced that role in her teaching position. Viewing the evidence in the light most favorable to Atkins, the Court of Appeal concluded the trial court erred in granting the summary judgment motion because there were triable issues of material fact as to whether the ministerial exception applies to Atkins’s former job position as an art teacher and an office administrator.