Employee’s Claims Under FEHA Based On Her Termination For Refusing To Get A Flu Vaccine Without A Medically Recognized Contraindication To Getting The Flu Vaccine Were Properly Dismissed
Hodges v. Cedars-Sinai Medical Center, 2023 WL 3558767 (2023)
Deanna Hodges is a former employee of Cedars-Sinai Medical Center. As a condition of her continued employment, she was required to get a flu vaccine unless she obtained a valid exemption—one establishing a medically recognized contraindication to getting the flu vaccine. Her doctor wrote a note recommending an exemption for various reasons, including her history of cancer and general allergies. None of the reasons was a medically recognized contraindication to getting the flu vaccine. Cedars denied the exemption request. Hodges still refused to get the vaccine. Cedars terminated her. Hodges sued Cedars for disability discrimination and related claims under the Fair Employment and Housing Act (FEHA). The trial court granted Cedars’s motion for summary judgment.
On appeal, the Court of Appeal affirmed:
- There is no triable issue of fact as to physical disability discrimination.
Plaintiff argues her cancer history and neuropathy amount to a physical disability because they “make it impossible for her to work as she cannot work as she cannot get vaccinated. Her disabilities limited her ability to safely receive the vaccine.” To be clear, the plaintiff admits her cancer history and neuropathy in no way otherwise limited her ability to work.
By this argument, the plaintiff asserts she has a physical disability within the meaning of section 12926, subdivision (m)(1), which provides that a physiological condition that affects one or more enumerated body systems and “limits a major life activity” is a “physical disability” for purposes of FEHA. Working is expressly defined as a major life activity.
In moving for summary judgment, Cedars introduced evidence that the plaintiff was not disabled and could not prove she was disabled. It offered official guidance from the CDC and testimony from [a medical expert] that there were only two medically recognized contraindications for getting the flu vaccine. It offered testimony from the plaintiff and [plaintiff’s physician] that she had never been diagnosed with either contraindication. [Plaintiff’s physician] further acknowledged that none of the conditions he listed on her exemption form were recognized contraindications for getting the flu vaccine. If this were not enough, Cedars also offered evidence that, before she was terminated, [plaintiff’s physician] advised plaintiff to reconsider her decision not to get the vaccine and that, under CDC guidelines, plaintiff’s cancer history was not a contraindication but rather an indication—a condition making it advisable—that a person get vaccinated.
Prospective Release Of Claims Did Not Violate Civil Code section 1668 (A Statute Providing That A Contract Releasing A Party From Future Violations Of Law Is Invalid As Against Public Policy)
Castelo v. Xceed Financial Credit Union, 2023 WL 3515225 (2023)
Xceed Financial Credit Union employed Elizabeth Castelo as its Controller and Vice President of Accounting. In November, Xceed informed Castelo her employment would be terminated effective December 31st. On November 19, the parties entered into a Separation and General Release Agreement, in which, among other things, Xceed agreed to pay Castelo a severance payment in consideration for a full release of all claims, including a release of age discrimination claims. The Agreement also provided that, as of Castelo’s separation date, she would have to sign Exhibit “A” to the Agreement reaffirming her commitment to abide by the terms of this Agreement and effectuating a full release of claims through her December 31st separation date. The releases extended to all known and unknown claims arising directly or indirectly from Castelo’s employment. Xceed intended that Castelo would sign the reaffirmation on the date of her separation (December 31st). However, Castelo signed it on the same date she signed the main Separation Agreement, on November 19th. Xceed did nothing to correct that error. Castelo remained employed by Xceed until December 31. In January, Xceed paid Castelo, and Castelo accepted the settlement payment. Castelo made no attempt to revoke the Separation Agreement or Reaffirmation at any time before or after receiving payment.
In August, Castelo filed a lawsuit alleging age discrimination and wrongful termination in violation of Fair Employment and Housing Act (FEHA). The parties stipulated to arbitration. Xceed filed a motion for summary judgment based on the releases in the Separation Agreement and the Reaffirmation, and the arbitrator granted the motion. Castelo moved to vacate the arbitration award, arguing that the arbitrator exceeded his powers by enforcing a release made unlawful by Civil Code section 1668, which prohibits pre-dispute releases of liability in some circumstances. The trial court denied the motion to vacate and entered judgment confirming the arbitration award. The Court of Appeal affirmed:
The arbitrator correctly ruled the release did not violate Civil Code section 1668. Castelo signed the separation agreement after she was informed of the decision to terminate her but before her last day on the job. At the time she signed, she already believed that the decision to terminate her was based on age discrimination and that she had a valid claim for wrongful termination. The alleged violation of FEHA had already occurred, even though the claim had not yet fully accrued. Accordingly, the release did not violate section 1668 because it was not a release of liability for future unknown claims.
Employee’s Individual, Nonrepresentative PAGA Claims Not Arbitrable Because The Parties’ Arbitration Agreement Specifically Excluded PAGA Claims From Arbitration
Duran v. EmployBridge Holding Company, 2023 WL 3717207 (2023)
Griselda Duran was employed defendant EmployBridge, LLC. As part of her employment application, plaintiff electronically signed an arbitration agreement. The arbitration agreement (1) states it is governed by the Federal Arbitration Act; and (2) contains a broad agreement to arbitrate claims:
In the event there is any dispute between [Duran] and the Company relating to or arising out of the employment or the termination of [Duran], which [Duran] and the Company are unable to resolve informally through direct discussion, regardless of the kind or type of dispute, [Duran] and the Company agree to submit all such claims or disputes to be resolved by final and binding arbitration, instead of going to court, in accordance with the procedural rules of the Federal Arbitration Act.
Except as prohibited under applicable law, [Duran] and the Company expressly intend and agree that: (1) class action, collective action, and representative action procedures shall not be asserted nor will they apply, in any arbitration proceeding pursuant to this Agreement; (2) neither [Duran] nor the Company will assert any class action, collective action, or representative action claims against each other in arbitration, in any court, or otherwise; and (3) [Duran] and the Company shall only submit their own respective, individual claims in arbitration and will not seek to represent the interests of any other person.
Should any term or provision, or portion of this Agreement, be declared void or unenforceable or deemed in contravention of law, it shall be severed and/or modified by the court, and the remainder of this Agreement shall be fully enforceable.
Duran sued EmployBridge to recover civil penalties under PAGA for Labor Code violations suffered by her and other employees. EmployBridge moved to compel arbitration of Duran’s claims on an individual, nonrepresentative basis. The trial court denied the motion because the arbitration agreement specifically excluded PAGA claims from arbitration.
EmployBridge appealed arguing that the arbitration agreement’s exclusion of PAGA claims from arbitration did not actually mean that all PAGA claims were excluded from arbitration; rather, EmployBridge argued that individual PAGA claims had to be arbitrated. The Court of Appeal affirmed the denial of the motion to compel arbitration:
This appeal challenges the denial of a motion to compel arbitration of claims to recover civil penalties under the Labor Code Private Attorneys General Act of 2004. The denial of the motion was based on the trial court’s determination that the agreement to arbitrate specifically excluded PAGA claims. We conclude the trial court correctly interpreted the agreement’s carve-out provision stating that “claims under PAGA … are not arbitrable under this Agreement.” This provision is not ambiguous. It is not objectively reasonable to interpret the phrase “claims under PAGA” to include some PAGA claims while excluding others. Thus, the carve-out provision excludes all the PAGA claims from the agreement to arbitrate.
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.
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.
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.
AB 2134: Information on access to reproductive healthcare for employees of religious employers
Despite countless offensive and degrading decisions from the U.S. Supreme Court diminishing access to safe and affordable reproductive healthcare over the last several years, California Democrats continue to take measures to secure access to abortion services and contraceptives for their constituents. Under AB 2134, if a religious employer’s healthcare coverage fails to provide employees with abortion and contraceptive coverage or benefits, the employer must provide its employees with written information regarding abortion and contraceptive services that may be available to them at no cost through the California Reproductive Health Equity Program. AB 2134 also requires the Department of Industrial Relations to post to its website information regarding abortion and contraception benefits available through the program.
AB 2068: Employers required to post Cal/OSHA information regarding citations or orders in English and other specified languages
Employers must already post Cal/OSHA citations in English in places readily seen by all employees. Now, AB 2068 expands worker access to these disclosures by requiring Cal/OSHA citation notices to be in English as well as the top 7 non-English languages used by limited-English-proficient adults in California, as determined by the U.S. Census Bureau’s American Community Survey, as well as Punjabi (if not already included in the top 7). Employers that fail to post citations in all required languages may be subject to (further) citation by Cal/OSHA.
AB 1576: Superior Court lactation rooms beginning July 1, 2024
Until AB 1576, nursing parents who visited California Superior Courts had no choice but to pump or feed their babies while sitting on a toilet in the courthouse bathroom or in the hallway across from their adversaries. This includes nursing lawyers, whose work requires spending hours tethered to the courtroom in hearings and trials.
Fortunately, beginning July 1, 2024, California Superior Courts will be required to provide court users, including lawyers and litigants, with access to a lactation room in any courthouse which a lactation room is also provided to court employees. The bill requires the lactation room to meet the requirements imposed upon an employer with respect to providing a lactation room for employees.
AB 1041 amends the California Family Rights Act (“CFRA”) and the Healthy Workplaces, Healthy Families Act of 2014, also known as the Paid Sick Leave Law, to permit eligible employees of covered employers to take leave to care for a “designated person” who does not have to be a family member. Rather, a “designated person” can be any individual related to the employee by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period.