Timing is Everything for California Whistleblowers
If you are an employee who has reported something in the workplace that you thought broke some kind of law, this article is for you.
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.
California Supreme Court Rules that Whistleblower Protections Apply to Employees Who Disclose Illegal Conduct Already Known to an Employer
In 1984, the Legislature enacted California Labor Code section 1102.5 in order to protect whistleblowers from retaliation against their employers. The law was amended in 2003 and again in 2013, to add protections afforded to employees. In 2013, specifically, the Legislature amended section 1102.5(b), so that an employee’s disclosure “to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or non-compliance” was deemed protected activity. On May 22, 2023, the California Supreme Court addressed whether reporting a violation that is already known to an employer or agency constitutes a protected disclosure under Labor Code section 1102.5(b) in People ex. Rel. Lilia Garcia-Brower v. Kolla’s, Inc., S269456. (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…)
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…)
California Law Protects Employees with Potential or Perceived Disabilities
While California law protects employees who are disabled, it also protects workers whose employers perceive them to have a physical or mental impairment that is disabling, potentially disabling, or perceived as disabling or potentially disabling. See Cal. Gov’t Code § 12926.1(b). In other words, California law protects workers from adverse employment actions because their employer “erroneously or mistakenly believed” them to have or have had a disability. See Cal. Gov’t Code § 12926.1(d).
For example, in one case, Moore v. Regents of Univ. of Cal,. 248 Cal.App.4th 216 (2016), an employee had a heart condition and wore a “LifeVest” to work that served as an external defibrillator. While she assured her employer that she would be able to carry out her job duties, in response, her employer stated that she was a “liability to the department.” Thereafter, her employer terminated her employment. The Court found that the employer’s “liability to the department” statement could be viewed as evidence of discriminatory animus of a perceived disability.
Moreover, in another case, Soria v. Univision Radio L. A., Inc., 5 Cal.App.5th 570 (2016), an employee had a tumor that was ultimately determined to be malignant. It was undisputed that the tumor did not interfere with her ability to perform her job duties. However, she was eventually terminated. The Court found that the employee still qualified as disabled because when she was terminated, her tumor had the potential to be or become malignant or could continue to grow to limit a major life activity. The Court reasoned: “The Legislature intended to protect employees from adverse employment action by employers concerned about what may happen in the future.”
If you believe your employer is taking an adverse employment action against you because of a potential or perceived disability please feel free to call the experienced workers’ rights attorneys at Hunter Pyle Law, and to make use of our free and confidential initial intake process. We can be reached at (510) 444-4400, or at inquire@hunterpylelaw.com.
An Employer’s Duty to Provide a Reasonable Accommodation
Under the Fair Employment and Housing Act (FEHA), an employee must generally provide an employer notice of the need for a reasonable accommodation for his or her disability. Achal v. Gate Gourmet, Inc., N.D. Cal. 2015, 114 F.Supp.3d 781. There is no one set way to request an accommodation, but an employer is not required to provide a reasonable accommodation until it is aware of the employee or applicant’s disability and physical limitations. (more…)
An Employer’s Duty to Provide a Reasonable Accommodation
Under the California Fair Employment and Housing Act (FEHA), an employer must make a reasonable accommodation for the known disability of an employee. Cal. Gov. Code §12940(m); Department of Fair Employment and Housing v. Lucent Technologies, Inc. (9th Cir. 2011) 642 F.3d 728, 743. Failure to reasonably accommodate a disabled employee or applicant is a violation of the FEHA in and of itself. Brown v. Los Angeles Unified School District (2021) 60 Cal. App. 5th 1092, 1107; Furtado v. State Personnel Bd. (2013) 212 Cal.App.4th 729, 745. (more…)