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Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim

Tanya TamblingJuly 31, 2019July 31, 2019

A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years. In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees. Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long. Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance. Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment. She was constructively terminated in 2014.

Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. Continue reading “Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim” →

Can Attorneys be Bound by Provisions in their Client’s Settlement Agreements?

Tanya TamblingJuly 24, 2019March 17, 2020

After reviewing a client’s settlement agreement, it is not uncommon for attorneys to sign beneath a notation “approved as to form” or “approved as to form and content.” When an attorney provides such a signature, is he or she bound by the contents of the settlement agreement? Possibly. The California Supreme Court recently held that counsel’s signature approving a release as to content and form does not preclude a factual finding that counsel both recommended that his or her client sign the document and intended to be bound by its provisions. Monster Energy Co. v. Schechter, Cal. S. Ct. Case No. S251892 (published July 11, 2019). Continue reading “Can Attorneys be Bound by Provisions in their Client’s Settlement Agreements?” →

California Court Clarifies Rule Regarding Reimbursing Employees for Slip-Resistant Shoes

Hunter PyleJuly 11, 2019March 17, 2020

When is a California employer required to reimburse its employees for the cost of slip-resistant shoes? On June 4, 2019, the Court of Appeal for the Third Appellate District answered this question in the case of Townley v. BJ’s Restaurants, Inc. (Case No. C086672). The defendant in Townley operates 63 restaurants in California. In order […]

Whistleblower Rights under California Labor Code Section 1102.5

Hunter PyleJuly 5, 2019October 29, 2020

A whistleblower is someone who calls attention to unlawful behavior or activities in the workplace. California Labor Code section 1102.5 is one of the strongest whistleblower protection laws in the land. The recent decision of Ross v. County of Riverside (2019) 2019 WL 2537342 further strengthens that law. by clarifying that employees need only believe that some illegal activity is happening when they report it. They do not have to expressly state that the activity violates the law in order to be protected. Continue reading “Whistleblower Rights under California Labor Code Section 1102.5” →

California Court of Appeal Addresses Meaning of “Physically Disabled”

Tanya TamblingJune 17, 2019

The California Court of Appeal recently issued an opinion that looked into whether an employee has a disability for purposes of the Fair Employment and Housing Act (FEHA). Ross v. County of Riverside, D075106 (published June 10, 2019). Plaintiff Christopher Ross worked for the County of Riverside as a deputy district attorney. In 2013, Mr. Ross discovered that he might have a serious neurological condition. Continue reading “California Court of Appeal Addresses Meaning of “Physically Disabled”” →

Dynamex Applies to Franchisors and Is Retroactive: The Ninth Circuit Weighs in

Hunter PyleMay 30, 2019March 17, 2020

All companies want to reduce their labor costs. Unfortunately, some resort to classifying their workers as independent contractors when they really should be classified as employees. Among other issues, that misclassification robs the workers of critical protections under the law: For example, many wage and hour laws do not apply to independent contractors.

Last year, in Dynamex Ops. v. Superior Court (2018) 416 P.3d 1, the California Supreme Court issued a strong opinion in favor of California’s workers. Dynamex adopted the “ABC test” for determining whether workers are employees or independent contractors under the California wage orders. Now, in Vasquez v. Jan-Pro Franchising Int’l (May 2, 2019), the Ninth Circuit Court of Appeals has gone further, approving the ABC test, holding that Dynamex applies retroactively, and applying it to franchise relationships. Continue reading “Dynamex Applies to Franchisors and Is Retroactive: The Ninth Circuit Weighs in” →

Arbitration and the California Supreme Court: A Glimmer of Hope in Melendez

Hunter PyleMay 28, 2019March 17, 2020

Corporations in recent years have made great strides in their efforts to hijack the American system of justice and force workers out of court and into mandatory arbitration. Their hope is that arbitration is such a stacked deck (and often it is) that workers will choose not to try to enforce their rights. They also hope that the “repeat player” phenomenon will give them a decisive advantage in terms of the results. Sadly, all too often that is the case.

However, there are signs that some judges are beginning to realize exactly what is going on with mandatory arbitration-and what a travesty it is. Continue reading “Arbitration and the California Supreme Court: A Glimmer of Hope in Melendez” →

LA Unified School District Teacher’s Claims Alleging Harassment and Retaliation Fail

Tanya TamblingMay 21, 2019March 17, 2020

Aurora Le Mere was a Los Angeles Unified School District (LAUSD) teacher for thirteen years. In that time, she filed a number of complaints and claims arising from her employment, including worker’s compensation claims and administrative complaints regarding LAUSD’s violations of provisions of the Education Code. In 2007, she filed a lawsuit against LAUSD and two individuals for discrimination, harassment and civil rights violations. All her claims and cases through 2007 settled. Then, in 2015, Ms. Le Mere filed another complaint against LAUSD and six individuals claiming that she had been unlawfully harassed and retaliated against since filing the 2007 case and worker’s compensation claims.

The defendants successfully demurred twice to the 2015 complaint. Continue reading “LA Unified School District Teacher’s Claims Alleging Harassment and Retaliation Fail” →

Court Holds that Teachers at a Jewish Synagogue are not Exempt from Employment Laws under the Ministerial Exception

Vince ChenApril 26, 2019

Employment laws provide workers with important protections, such as minimum and overtime wages, the right to be free from harassment or discrimination, and workers’ compensation. In certain situations, these laws conflict with The United States Constitution’s prohibition against governmental interference with the free exercise of religion. Specifically, the “ministerial exception” exempts individuals that are classified […]

Unpaid Wages and PAGA: A Third Approach in Zakaryan v. The Men’s Wearhouse

Hunter PyleApril 4, 2019April 4, 2019

On March 28, 2019, a third California Court of Appeal weighed in on the issue of whether California employees who have signed arbitration agreements can bring claims under the Private Attorneys General Act (PAGA) for unpaid wages.

To set the stage, in Esparza v. KS Indus., L.P. (2017) 13 Cal.App.5th 1228, the Fifth District Court of Appeal held that a PAGA claim can be split, and that PAGA claims for unpaid wages under Labor Code section 558 can be sent to individual arbitration. In Lawson v. ZB, N.A. (2017) 18 Cal.App.5th 705, the Fourth District Court of Appeal disagreed, holding that employees can bring those PAGA claims on a representative basis in court.

The Second District Court of Appeal has now weighed in on this issue in the case of Zakaryan v. The Men’s Wearhouse (March 29, 2019) Case No. B289192. In that case, the court agreed with Lawson for the most part, but added this interesting twist: Of the unpaid wages recovered, 75 percent must go to the State, and 25 percent to the workers. In reaching this holding, the Zakaryan court relied on the fact that Labor Code section 558 was enacted before PAGA. Therefore, PAGA’s later-enacted rule regarding the distribution of civil penalties recovered under that statute must control. Continue reading “Unpaid Wages and PAGA: A Third Approach in Zakaryan v. The Men’s Wearhouse” →