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.
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.
Supreme Court Holds That NLRA Does Not Preempt An Employer’s Tort Claims Alleging That The Union Intentionally Destroyed The Company’s Property During A Labor Dispute
Glacier Northwest, Inc., v. International Brotherhood of Teamsters Local Union No. 174, 2023 WL 3742578 (2023)
Glacier Northwest, a concrete company, depends on its truck drivers to deliver concrete to customers in a timely manner. But when relations between Glacier and its drivers soured, the drivers went on strike. Their labor union allegedly designed the strike with the intent to sabotage Glacier’s property. Although Glacier managed to avoid damage to its delivery trucks by deploying emergency maneuvers, the concrete that it had already produced that day went to waste. Glacier sued the union in state court for destroying its property. But the company did not get very far: The state court dismissed Glacier’s tort claims on the ground that they were preempted by the National Labor Relations Act. In an 8 – 1 opinion authored by Justice Barret, the Supreme Court reversed its holding in favor of the Glacier Northwest because the NLRA does not shield strikers who fail to take “reasonable precautions” to protect their employer’s property from foreseeable, aggravated, and imminent danger due to the sudden cessation of work and, in the opinion of the majority, the Union failed to “take reasonable precautions to protect” against this foreseeable and imminent danger.
Justice Thomas, with whom Justice Gorsuch joined, concurred in the decision but suggested that it was time to overrule San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959).
Justice Jackson issued a withering dissent:
The right to strike is fundamental to American labor law. Congress enshrined that right in the National Labor Relations Act (NLRA) and simultaneously established the National Labor Relations Board to adjudicate disputes that arise between workers and management. That decision reflected Congress’s judgment that an agency with specialized expertise should develop and enforce national labor law in a uniform manner through case-by-case adjudication. For its part, this Court has scrupulously guarded the Board’s authority for more than half a century. See San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). Under Garmon, and as relevant here, a court presented with a tort suit based on strike conduct generally must pause proceedings and permit the Board to determine in the first instance whether the union’s conduct is lawful if the conduct at issue is even “arguably” protected by the NLRA.
Today, the Court falters. As the majority acknowledges, the Board’s General Counsel has filed a complaint with the Board after a thorough factual investigation, and that complaint alleges that the NLRA protects the strike conduct at the center of this state-court tort suit. The logical implication of a General Counsel complaint under Garmon is that the union’s conduct is at least arguably protected by the NLRA. Consequently, where (as here) there is a General Counsel complaint pending before the Board, courts—including this Court—should suspend their examination. Garmon makes clear that we have no business delving into this particular labor dispute at this time.
But instead of modestly standing down, the majority eagerly inserts itself into this conflict, proceeding to opine on the propriety of the union’s strike activity based on the facts alleged in the employer’s state-court complaint. As part of this mistaken expedition, the majority tries its own hand at applying the Board’s decisions to a relatively novel scenario that poses difficult line-drawing questions—fact-sensitive issues that Congress plainly intended for the Board to address after an investigation. And in the course of inappropriately weighing in on the merits of those questions at this stage, the majority also misapplies the Board’s cases in a manner that threatens to both impede the Board’s uniform development of labor law and erode the right to strike.
In my view, today’s misguided foray underscores the wisdom of Congress’s decision to create an agency that is uniquely positioned to evaluate the facts and apply the law in cases such as this one. This case is Exhibit A as to why the Board—and not the courts—should ordinarily take the first crack at resolving contentious, fact-bound labor disputes of this nature. Because the majority’s ruling suggests otherwise, I respectfully dissent.
Arbitration Denied Where Employer Failed To Authenticate Employee’s Signature On Arbitration Agreement
In Gamboa v. Northeast Community Clinic, 72 Cal.App.5th 158 (2021), the Court of Appeal affirmed the trial court’s decision to deny arbitration due to the employer’s failure to satisfy its burden of proving that the employee signed the employer’s arbitration agreement. The employer provided the trial court with an arbitration agreement that appeared to be signed by a representative of the employer and an employee, along with a declaration from a human resources official indicating that the plaintiff had signed the arbitration agreement (but lacking any foundational facts such as that the official witnessed the plaintiff signing the agreement). The plaintiff, however, filed a declaration in support of her opposition, stating that: (1) she reviewed the arbitration agreement attached to the official’s declaration but does “not remember these documents at all”; (2) before this case, no one had ever told her about an arbitration agreement or explained what it was; and (3) if she had known about the arbitration agreement and had been told about its provisions, she would not have signed it. In affirming, the Court of Appeal stated: “By not providing any specific details about the circumstances surrounding the contract’s execution, the defendant’s declarant offered little more than a bare statement that the plaintiff entered into the contract without offering any facts to support that assertion. This left a critical gap in the evidence supporting the defendant’s petition.” (cleaned up).
Arbitration Denied Where Employer Failed To Authenticate Employee’s Electronic Signature On Arbitration Agreement
In Bannister v. Marinidence Opco, LLC, 64 Cal.App.5th 541 (2021), the Court of Appeal affirmed the trial court’s decision to deny arbitration due to the employer’s failure to satisfy its burden of proving that the employee signed an arbitration agreement. The Court of Appeal cited both conflicting evidence as to whether the agreement was electronically executed by the employee and the fact that there were no employee-specific usernames or passwords required for the execution of the agreement.
Finally, California raised the minimum wage to $15.50 per hour on January 1, 2023, for all employers – regardless of the number of workers employed by an employer. This increase means that employees in California must be paid a minimum annual salary of $64,480.00 ($5,373.33 per month) if they are to be classified as exempt. However, covered computer professional employees must be paid a minimum of $53.80 per hour, or $112,065.20 in annual salary, in order to qualify as exempt.
According to the Economic Policy Institute, a Washington D.C.-based think tank, an estimated 3.2 million Californians – 18.9% of the workforce – will benefit from this minimum wage increase.
It is important to note that some cities and counties in California have a local minimum wage that is higher than the State rate.
Consumer Privacy Protections for Employers Under the California Consumer Privacy Act, as Amended by the California Privacy Rights Act (CCPA)
When the California Consumer Privacy Act (“CCPA”) originally took effect in 2020, it exempted employees from most of its provisions. This year, the California Privacy Rights Act (“CPRA”) finally extends major consumer privacy rights under the CCPA to employees and job applicants of covered employers. In addition to requiring covered employers to provide privacy notices at the time employee personal information is collected, the CPRA grants employees several new rights, including the rights to request what personal information their employers have collected and/or disclosed and to request that their employers delete their personal information, with some exceptions.
Covered employers do not need to – and in some instances may not – delete certain data, including where a business’s legal obligations require its retention, such as under California Labor Code Sections 1198.5(c) (retention of personnel files) and 226(a) (retention of payroll records). Among its other provisions, the CPRA also allows employees to opt out of the sale or sharing of their personal information and to limit the use of “sensitive” personal information, a new category of data under the CCPA that includes an employee’s social security number, driver’s license, and financial information, as well as race, ethnicity, and religion. The CPRA includes an anti-discrimination provision, which prohibits retaliation for the exercise of rights under the Act.
Though its provisions are wide sweeping, the CCPA focuses on larger companies and those engaged in the sale of data. It covers only companies doing business in California that fall within one of 3 categories: (i) businesses having annual gross revenues that exceed $25 million; (ii) those that annually buy, receive, share, or sell personal information of more than 100,000 consumers or households in California; or (iii) companies that derive at least 50 percent of their annual revenue from selling or sharing personal information of residents of California.
AB 2693 extends until January 1, 2024, employers’ obligation to provide notice to employees within one day of learning of a potential COVID-19 exposure in the workplace and, as an alternative to providing written notice to employees, now allows employers to post notice of a potential COVID-19 exposure. If an employer elects to post, it must display the notice where notices concerning workplace rules or regulations are customarily displayed.
An athlete with Down syndrome made history. Then the abuse began, the suit says.
Caden Cox ran out to the 13-yard line with 3:22 left in the third quarter as his Hocking College Hawks battled the Sussex County Community College Skylanders on Sept. 11, 2021.
With Cox ready, the center snapped the football to the holder, who caught it and put it on the turf. Wearing No. 21, Cox trotted forward, pulled back his right leg, and swept it forward, lifting the ball through the uprights.
The extra point was good.
With that, Cox made history as the first known player with Down syndrome to score during a college football game. The feat earned him a spot in the history books and a 5½-minute segment on ESPN.
People talked to me and said, ‘Wow, it was an awesome kick
“People talked to me and said, ‘Wow, it was an awesome kick,’” he told a reporter at the time.
Less than two years later, Cox is suing his alma mater, alleging that the very thing that made his kick historic also made him a target for discrimination. In a lawsuit filed Thursday in the U.S. District Court for Southern Ohio, Cox alleges that college officials in Nelsonville, Ohio, discriminated against him because he has Down syndrome and then retaliated against him when he reported it to administrators. In one incident, a supervisor at the college’s student center threatened him with a knife and was later convicted in the incident.
President Betty Young declined to comment on Cox’s allegations but, in a statement to The Washington Post, said that she’s “happy Hocking College could provide opportunities for Caden to receive a college education and to participate in college athletics.”
“We remain committed to provide such to all our students,” she added.
Cox alleges that the discrimination started soon after June 2021 when the college hired Matthew Kmosko, a former professional soccer player, as a soccer coach and a supervisor at the college’s student center. In the latter role, Kmosko oversaw Cox, who worked at the center as a student-employee. As Cox’s boss, Kmosko consistently used “derogatory slurs” about people with Down syndrome and repeatedly berated him in front of his co-workers, the suit alleges.
Court records do not yet list an attorney for Kmosko. The public defender who represented Kmosko in the criminal trial declined to comment on Cox’s allegations in the civil suit.
In July 2021, Cox’s mother, Mari, who works at the college, filed a written complaint about Kmosko’s behavior with the college’s human resources department, according to the suit.
The misbehavior not only continued but also escalated, it alleges.
In January 2022, Mari emailed another complaint about Kmosko, asking that he be replaced as her son’s supervisor, the suit says. In the message, she accused Kmosko of calling her son the r-word, taking his phone without permission, and “putting his hands on [her son] inappropriately.”
Then, on May 12, when Cox went into a men’s bathroom to change the garbage bags, Kmosko allegedly followed him, blocked the exit and screamed at Cox while preventing him from leaving. As Kmosko did, he pointed a knife at Cox’s chest, the suit states.
Cox told investigators he feared that Kmosko would stab him, according to a police report.
Surveillance cameras captured Kmosko walking into and out of the bathroom with the knife, the suit states. Shaken and scared, Cox returned to the front desk, where he said he received a call from Kmosko. He allegedly told Cox that he could see him sitting there and ordered him to “get up and do something” before hanging up.
Cox “was terrified and traumatized and called his mother immediately,” according to the suit.
In July, Kmosko, who resigned from the college, was charged with aggravated menacing, a misdemeanor, in connection with the incident, and an Athens County jury found him guilty in January of menacing, a lesser charge. He was sentenced to 30 days in jail.
This past October, the college sent an email to employees calling for nominations for awards at the fall graduation ceremony, the suit states, and Cox “was nominated for nearly every award” by several staff members, including his coaches. Once the votes were tallied on Nov. 11, Cox had won three honors: the Inspirational Award, the Scholar Athlete Award, and the Hocking College Trustee Award, which was to be bestowed at a graduation ceremony on Dec. 10.
On Dec. 2, lawyers representing the Cox family delivered a letter to Young, laying out their allegations of discrimination, harassment, and assault.
On Dec. 9, a day before the ceremony, Cox’s father, Kevin, who worked at the college as a football coach until he resigned in February, arrived at the school to set up for the next day’s festivities. Reviewing the ceremony program, he noticed it listed his son as having won only one award, although a QR code on posters around the school routed to a digital version showing all three.
“Retaliation is the only plausible reason for the surreptitious and punitive removal of [Cox’s] graduation awards days before the graduation ceremony was to take place,” the suit alleges.
For people with Down syndrome, a longer life, but under a cloud
After graduating, Cox completed a football-related internship at Texas A&M University, where his older brother works as a strength coach, his lawyer, Mark Weiker, told The Post. He’s back in Ohio and, in June, plans to go to orientation at an Ohio State University program for people with intellectual and developmental disabilities.
But a year later, the knife incident still haunts Cox, according to his lawsuit. He continues to suffer from nightmares and anxiety. When he visits Hocking’s campus, he gets especially scared when he sees a red car like the one Kmosko used to drive to school.
“The distress that [Caden] suffered and continues to suffer from as a result of the trauma he endured,” the suit states, “will affect him emotionally and psychologically for the rest of this life.”
AB 2188 Protections for off-site, off-duty marijuana use beginning January 1, 2024
The legalization of recreational marijuana in 2016 led many to question the California Supreme Court’s decision in Ross v. RagingWire Telecommunications Inc., 42 Cal.4th 920 (2008), which held in part that, despite the legalization of medical marijuana in 1996, an employer could lawfully refuse to hire a job candidate who failed a drug test, even if it was the result of legal marijuana use. Although the passing of Proposition 64 in 2016 did not impact the holding in Ross (in fact, the law explicitly preserved its holding), societal attitudes towards marijuana have shifted significantly since the Court’s decision.
Starting on January 1, 2024, AB 2188 will amend FEHA to prohibit discrimination based upon an employee’s use of cannabis off the job and away from the workplace, partially superseding Ross. The bill does not prohibit an employer’s use and reliance on pre-employment drug screenings that determine current impairment or active levels of tetrahydrocannabinol (“THC”). It also has some exceptions, including for workers in the building and construction trades and applicants and employees subject to federal background investigations or clearances.