The Role of the “Same Decision” Defense in California Whistleblower Cases

Whistleblower cases in California differ from discrimination cases in several important ways. Among other things, Section 1102.6 of the Whistleblower Protection Act (found in the California Labor Code) provides that where an employee proves by a preponderance of the evidence that discriminatory activity was a “contributing factor” with respect to a discriminatory act, the burden then shifts to the employer. To meet that burden, the employer must prove by “clear and convincing evidence” that the action would have occurred for other legitimate, independent reasons even if the employee had not engaged in protected activity. The statute reads as follows:

In a civil action or administrative proceeding brought pursuant to Section 1102.5, once it has been demonstrated by a preponderance of the evidence that an activity proscribed by Section 1102.5 was a contributing factor in the alleged prohibited action against the employee, the employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons even if the employee had not engaged in activities protected by Section 1102.5.

This framework, and particularly the requirement that an employer present “clear and convincing evidence,” can be useful for employees in situation in which a number of factors contributed to the decision to discipline or terminate. Furthermore, in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, the California Supreme Court concluded that Section 1102.6 provides the “applicable substantive standards and burdens of proof for both parties in a section 1102.5 retaliation case” and is a “complete set of instructions” for adjudicating whistleblower retaliation claims.

The language in Section 1102.6 does not appear in California’s Fair Employment and Housing Act (FEHA), where many of the state’s antidiscrimination laws are found. For this reason, the FEHA treats cases in which there are multiple reasons for an adverse employment action differently. In Harris v. City of Santa Monica (2013) 56 Cal.4th 203, the California Supreme Court held that in FEHA claims, where an employer proves that it that it would have made the same decision even absent any unlawful discrimination, the employee is still entitled to declaratory or injunctive relief, as well as attorneys fees. However, to trigger this situation, an employee must show that discrimination was a “substantial factor” in the underlying decision.

In other words, the first step of the analysis under FEHA discrimination claims is more challenging for the employee to meet because the employee must show what discrimination was a “substantial factor” as opposed to just “a contributing factor”. However, once the employee meets that burden, in the second step of the FEHA analysis he or she can prevail even if there were other reasons for the discriminatory act.

A recent decision of the First District of the California Court of Appeal clarifies the ramifications of the difference in language between the FEHA and the Whistleblower Protection Act. In Ververka v. Department of Veterans Affairs (May 22, 2024), A163571, the plaintiff tried to import the Harris framework into a whistleblower case. The court rejected that effort, holding that the “same decision” defense is a complete defense in cases brought under the Whistleblower Protection Act.

If you have questions about your rights at work-either a whistleblower or under California’s Fair Employment and Housing Act, please feel free to contact the attorneys at Hunter Pyle Law and to make use of our free and confidential intake process. We can be reached at (510) 444-4400 or at inquire@hunterpylelaw.com.

Attorneys’ Fees in Individual Wage and Hour Cases

California Labor Code section 1194 provides that an employee who is paid less than the legally-required minimum wage or overtime compensation who prevails in a civil action can recover their reasonable attorney’s fees and costs of suit. This provision is important, because many individual wage and hour claims are small, and, absent the possibility of recovering attorneys’ fees, many private attorneys will not take them.

In Gramajo v. Joe’s Pizza on Sunset, Inc., B322697 (March 25, 2024) the court considered whether a trial judge could award no attorney’s fees or costs to a plaintiff who had won $7,659.63 after a seven-day jury trial. The trial judge in that case had done so after finding that the plaintiff”s attorney had severely over litigated the case, which should have been brought in a court of limited jurisdiction because it was worth less than $25,000.

The court of appeal found that even given these facts the trial judge was required to award reasonable fees and costs. However, the court noted that “trial courts must always be guided by what is reasonable and exercise their discretion to strike costs or reduce fees they find unreasonable.”

If you have an individual claim for unpaid wages, please feel free to contact the attorneys at Hunter Pyle Law. We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

The Transportation Worker Exemption: What it is, why it matters, and what we can learn from two 2024 cases addressing it.

In recent years, many employers have sought to shield themselves from class actions, as well as individual claims of all sorts, by requiring their workers to sign arbitration agreements. These agreements usually bar any kind of collective action. They also require workers to proceed in arbitration forums rather than in court. The reason for this development is clear: Employers want to avoid class actions. They also want to avoid being accountable to a jury and/or a judge. Instead, they would rather have any claims made against them decided by an arbitrator whom they pay for.

One of the main reasons that employers can get away with this tactic is that the Federal Arbitration Act (FAA) provides generally that arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. § 2. This clause largely prevents states from limiting the scope of arbitration agreements. See, e.g., Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360 (holding that Gentry v. Superior Court (2007) 42 Cal.4th 443 was abrogated by United States Supreme Court precedent interpreting the FAA).

However, due to historical reasons not explored here, the FAA provides that “nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U. S. C. § 1. This is known as the transportation worker exemption. Generally speaking, workers who fall within the scope of that exemption are not required to arbitrate claims against their employers.

Over twenty years ago, the U.S. Supreme Court limited the scope of the transportation worker exemption in a case called Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). In that case, the plaintiff had argued that section 1 of the FAA exempts all contracts of employment, regardless of what a worker does. The Supreme Court rejected that argument, holding instead that  the general phrase “class of workers engaged in … commerce” is “controlled and defined by reference to” the specific categories “seamen” and “railroad employees” that precede it. 532 U.S. at 115.

In other words, the transportation worker exception must be interpreted narrowly, limiting its applicability to the contracts of workers who are similar to “seamen” and “railroad employees.”

More recently, however, this tide seems to have turned a bit in favor of workers. In 2019, the Supreme Court held that the exemption’s reference to “contracts of employment” applies both to employer-employee agreements and to agreements with independent contractors. See New Prime Inc. v. Oliveira (2019) 586 U.S. 105, 116. Then, in 2022, the Supreme Court held that the transportation worker exemption applied to a worker who loaded and unloaded cargo from airplanes that travelled in interstate commerce. Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450, 463.

2024 has brought more good news for workers regarding the exemption, both from the Supreme Court and from the Ninth Circuit Court of Appeals.

Ortiz v. Randstad

First, in Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152, 1161–1162, the Ninth Circuit applied the test set forth in Saxon and concluded that a worker who performed warehouse work in California was covered by the exemption. In that case, the plaintiff’s job duties included exclusively warehouse work: transporting packages to and from storage racks, helping other employees in obtaining packages so they could be shipped, and assisting another department with preparing packages for their subsequent shipment. The court noted that the plaintiff was not involved in unloading shipping containers upon their arrival or loading them into trucks when they left the warehouse.

Turning to Saxon‘s second step, the Ninth Circuit found that the district court had correctly concluded that the plaintiff’s class of workers “play[ed] a direct and ‘necessary role in the free flow of goods’ across borders” and “actively ‘engaged in transportation’ ” of such goods. The plaintiff handled Adidas products near the very heart of their supply chain. In each case, the relevant goods were still moving in interstate commerce when the employee interacted with them, and each employee played a necessary part in facilitating their continued movement.

Accordingly, the Ninth Circuit concluded that the plaintiff’s job description met all three benchmarks laid out in Saxon: he fulfilled a small but nevertheless “direct and necessary” role in the interstate commerce of goods by ensuring that goods would reach their final destination by processing and storing them while they awaited further interstate transport. He was also “actively engaged” and “intimately involved with” transportation: he handled goods as they went through the process of entering, temporarily occupying, and subsequently leaving the warehouse—a necessary step in their ongoing interstate journey to their final destination.

He was therefore actively engaged in the interstate commerce of goods. So the exemption applied and he was free to bring his class action claims against the defendant.

Bissonnette v. LePage Bakeries Park St., LLC

Then, in April 2024, a unanimous Supreme Court clarified that a transportation worker does not have to work for a company in the transportation industry to be exempt under section 1 of the FAA. Bissonnette v. LePage Bakeries Park St., LLC (2024) 601 U.S. –, 144 S.Ct. 905, 909. In that case, the plaintiffs delivered baked goods made by Flowers Foods (which makes Wonder Bread, among other things). The Second District Court of Appeals held that the plaintiffs were in the “bakery industry” not the transportation industry. The Supreme Court rejected that analysis, holding instead that what mattered was what the plaintiffs actually did.

These cases help to clarify which types of workers are exempt from the FAA which, as discussed above, would generally allow them to bring class actions and other types of claims in court. If you have questions about your rights at work, please feel free to contact Hunter Pyle Law and to make use of our free and confidential intake process. We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.

When are Temporary Workers owed Their Final Wages?

Payment of final wages upon termination (or resignation) can be a big deal in California. Labor Code sections 201-203 set forth important rules that employers must follow, and can result in stiff penalties when they are violated: up to 30 days of pay at the employee’s regular daily wages.

A recent California Court of Appeal decision explores the question of when temporary workers are owed their final wages. In Young v. REMX Specialty Staffing (2023) 91 Cal.App.5th 427, the plaintiff was hired by a temporary staffing agency in July 2013. She was then assigned to a Bank of the West location and, soon thereafter, terminated. The plaintiff then sued, claiming that she had not been properly paid her final wages upon the termination of her employment.

The case thus turned on California Labor Code section 201.3(b)(4), which provides that if an employee of a temporary services employer is assigned to work for a client and is discharged by the temporary services employer or leasing employer, wages are due and payable immediately. (more…)

California Whistleblower Protections Cover Complaints that Employers Already Know About

On May 22, 2023, the California Supreme Court issued an important decision clarifying that employers violate the law if they terminate or retaliate against employees who complain about violations that were already known to the employer. In People ex rel. Garcia-Brower v. Kolla’s (S269456), the employee worked for a nightclub in Orange County. She complained that she had not been paid for her three previous work shifts. The employer then threatened to report her to immigration authorities and fired her.

The plaintiff then filed a complaint with the Division of Labor Standards Enforcement (DLSE) of the State of California’s Department of Industrial Relations. The DLSE investigated and prosecuted her complaint. Unfortunately, the trial court held that Labor Code section 1102.5, California’s whistleblower protection law, did not apply because the employee had complained to her employer rather than to a government agency. The court of appeal affirmed on different grounds, holding that in order to be protected under section 1102.5, an employee’s complaint must report something that the employer was not already aware of. (more…)

Liability of Companies for Outsourced Workers under California Law

Some businesses in California use other companies to provide their workers. The company that provides the workers is sometimes referred to as a “Labor Contractor.” Unfortunately, Labor Contractors may, for a number of reasons, stop paying their workers. The question then is whether the workers can sue the business that used the Labor Contractor for their unpaid wages.

In 2014, California enacted a statute to address this situation: Labor Code section 2810.3.  (more…)

California’s Equal Pay Act — An Introduction

This post provides basic information about California’s Equal Pay Act, which is found in Labor Code sections 1197.5 and 432. The Equal Pay Act (or “EPA”) prohibits employers from paying employees less than employees of the opposite sex for equal work. As January 1, 2017, it also prohibits an employer from paying its employees less than employees of another race, or of another ethnicity, for substantially similar work.

Basic Provisions of California’s EPA

In 2015, California’s Fair Pay Act amended and strengthened the Equal Pay Act and underscored California’s commitment to achieving gender pay equity by doing the following, among other things:

• Requiring equal pay for employees who perform “substantially similar work.”
• Eliminating the requirement that any employees being compared work at the “same establishment.”
• Making it more difficult for employers to justify unequal pay.
• Clarifying that it is illegal for an employer to retaliate against employees who seek to enforce the EPA.
• Making it illegal to prohibit employees from discussing or asking about their co-workers’ wages.

These provisions were effective as of January 1, 2016.

Recent Amendments to California’s EPA

Recent years have brought additional protections to California workers.

For example, as of January 1, 2017, California law prohibits an employer from paying its employees less than employees of another race, or of another ethnicity, for substantially similar work. In addition, California law prohibits employers from using prior salaries to justify any sex-, race-, or ethnicity-based pay difference.

Critically, as of January 1, 2018, the Equal Pay Act covers public employers. Additionally, Labor Code section 432.3 prohibits employers from seeking applicants’ salary history information.

Employer Defenses under California’s EPA

Employers can defeat Equal Pay Act claims by proving that a difference in pay is due to:

• Seniority;
• Merit;
• A system that measures production; and/or
• A “bona fide factor other than sex, race, or ethnicity.”

To prevail on this type of defense, an employer must show that it reasonably applied one or more of these factors and that the factor accounts for the entire difference in wages.

Critically, however, employers cannot justify pay differences based on past salaries. Employers are permitted to base compensation on a current employee’s current salary. However, any wage differential resulting from that compensation decision must be justified by one or more of the reasons set forth above.

Deadlines for Filing Claims under California’s EPA

In order to proceed on a claim under California’s EPA, an employee must file their claim within two years of the date of the violation. If the employer has acted willfully, then the employee has up to three years to file. Every paycheck that contains unequal pay serves as a separate violation of the EPA.

If you have questions about whether you are being discriminated against with respect to your pay, please feel free to contact Hunter Pyle Law and make use of our free and confidential intake process. We can be reached at inquire@hunterpylelaw.com or at www.hunterpylelaw.com.

Paid Sick Leave under California Law and PAGA

California’s Healthy Workplaces, Healthy Families Act of 2014 (Healthy Workplaces Act), which is found at Labor Code § 245, requires certain employers to provide their employees with at least three paid sick days per year. Employers that violate this law may be subject to a host of damages, including liquidated damages and civil penalties.

A recent case from the Fourth District Court of Appeal found that employees could bring a claim under California’s Private Attorneys General Act (PAGA) for violations of the Healthy Workplaces Act. (more…)

Meal Breaks for Public Sector and UC Health Care Workers

California law now guarantees meal breaks and rest periods to public sector and UC workers who provide or support direct patient care in a hospital, clinic, or public health setting.

Private sector nurses have been guaranteed meal breaks and rest periods for some time. However, public sector nurses have not enjoyed these basic protections, even though they perform the same job duties. (more…)

Disability Harassment is Illegal under California Law

Under California’s Fair Employment and Housing Act (“FEHA”), it is an unlawful for an employer or any other person to harass an employee due to their physical disability, mental disability, or medical condition.[1] Unlike claims for discrimination, liability for harassment applies to “any person” and thus extends to individuals, including individual supervisory employees.[2]

In order for harassment to be actionable under the FEHA, the conduct must be “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”[3] Notably, the conduct need only be severe or pervasive.[4] The words “severe” and “pervasive” have no peculiar meanings under the law. The adjective “severe” is defined as “strongly critical and condemnatory” or “inflicting pain or distress.”[5] The verb “pervade” is defined as “to become diffused throughout every part of.”[6]

As to whether the alleged conduct is sufficiently severe or pervasive, a jury should consider the totality of circumstances.[7] The relevant jury instruction identifies the following factors that may be considered, among others: “(a) The nature of the conduct; (b) How often, and over what period of time, the conduct occurred; (c) The circumstances under which the conduct occurred; (d) Whether the conduct was physically threatening or humiliating; and (e) The extent to which the conduct unreasonably interfered with an employee’s work performance.”[8]

In Caldera v. Department of Corrections and Rehabilitation, the court affirmed a jury verdict in favor of the plaintiff on a claim for disability harassment.[9] The plaintiff alleged that he was mocked for his stutter multiple times in front of others.[10] To make matters worse, the harasser’s conduct had been broadcast over the prison’s radio system, and heard by about 50 employees.[11] Other incidents of harassment had occurred in front of the plaintiff’s co-workers.[12] Additionally, the plaintiff’s psychologist had testified that the harassment had caused the plaintiff to experience psychological disorders.[13] This evidence was more than enough to support the jury’s determination that the harassing conduct had been both severe and pervasive, although either would have been sufficient.[14]

[1] Cal. Gov’t Code § 12940(j)(1).

[2] Janken v. GM Hughes Electronics, 46 Cal.App.4th 55, 65 (1996).

[3] Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 263-264 (2009).

[4] Ramirez v. Wong,188 Cal.App.4th 1480, 1488 (2010).

[5] Webster’s Collegiate Dictionary (11th ed. 2007) p. 1140, col. 2.

[6] Id. at p. 925, col. 2.

[7] Fisher v. San Pedro Peninsula Hosp., 214 Cal.App.3d 590, 609-610 (1989).

[8] CACI No. 2524.

[9] Caldera v. Dep’t of Corr. & Rehab., 25 Cal.App.5th 31, 38–43 (2018).

[10] Id. at 34.

[11] Id. at 35.

[12] See id. at 34-36.

[13] Id. at 35.

[14] Id. at 39.