Employer Not Liable for an Accident Caused by its Employee

Kim Rushton, an employee of the City of Los Angeles (City of LA), struck and killed a pedestrian, Ralph Bingener, while commuting to work.  Mr. Rushton, a 68-year old man with neurological conditions, worked as a chemist in a water quality lab checking water for semi-volatile organic compounds.  He did not use his car for his employment.  All of Mr. Rushton’s work was performed at the lab and he rarely left the plant for work-related travel.  (more…)

Disabled Psychologist’s Claims for Discrimination, Harassment and Retaliation against Department of Corrections Fail Despite Providing Doctor’s Notes

As an employee, there may be times when you need an accommodation in the workplace due to a disability.  Sometimes, your employer may ask for a doctor’s note in the course of engaging in the interactive process.  How specific do the doctor’s notes need to be?  A recently published case provides some insight into this question.

Plaintiff John Doe began working at Ironwood State Prison as a psychologist in 2012.  In 2013, he requested to work in a quiet place that allowed him to focus and concentrate.  (more…)

San Francisco State University Professor Prevails on Retaliation Claim

San Francisco State University (SFSU) hired Rashmi Gupta in 2006 as a tenure track assistant professor in the School of Social Work.  Generally, tenure track professors work for a six year term.  After that, SFSU decides whether or not to promote a tenure track professor to the position of associate professor and award lifetime tenure.

Dr. Gupta initially faced some hurdles when she began teaching at SFSU.  Her student evaluations were lower than average; however, Dr. Gupta was praised for her efforts in research, scholarship and publication.  By 2009, Dr. Gupta had overcome her initial challenges and was receiving positive reviews from students and peer evaluators.

In 2009, Dr. Gupta and several other women of color in the School of Social Work lodged a complaint with the provost to express their concerns about the abuse of power, bullying, micromanagement and a hostile work environment at SFSU.  At a follow up meeting, the women expressed concern about the Director of the School of Social Work, and more generally, about discrimination against people of color on campus.

Less than two months after Dr. Gupta lodged her complaints, she received a negative performance review.  Many of the criticisms in the review were inaccurate.  Dr. Gupta then emailed a colleague complaining that SFSU was hostile toward women of color, and named two individuals for creating the hostile work environment, Don Taylor and Rita Takahashi.  At a meeting in March 2010, Dr. Taylor told Dr. Gupta that he knew about the emails, and threatened “to get even with [her].” (more…)

Can California Workers Recover Waiting Time Penalties, Wage Statement Penalties, or Attorneys’ Fees for Meal and Rest Period Violations?

A recent decision from the Court of Appeal for the Second Appellate District in the case of Naranjo v. Spectrum Security Services, Inc. (September 26, 2019) Case No. B256232 addresses several unresolved questions pertaining to meal and rest periods in California.

First, the Court upheld the trial court’s ruling that Spectrum had not met the requirements for an on-duty meal period because, during part of the class period, it did not have a written agreement in which the employees were advised that the agreement could be revoked.  In reaching this conclusion the Court rejected Spectrum’s argument that it had substantially complied with the on-duty meal period requirements. (more…)

Employees Beware: Arbitration Agreements Can Sometimes be Applied Retroactively

Increasingly, employers are asking employees to sign arbitration agreements.  If the arbitration agreement is valid and enforceable, the employee generally waives the right to sue the employer in court and have the case tried before a jury of his or her peers.  Employers typically favor arbitration for a variety of reasons, including privacy, control over arbitrator selection, limited rights to appeal, and the ability to have employees waive the right to bring class action lawsuits.

What happens if an employee has claims against an employer, files a lawsuit and then signs an arbitration agreement?  Can that employee still be compelled to arbitrate his or her claims?  The Court of Appeal for the Fourth Appellate District recently addressed this issue in Franco v. Greystone Ridge Condominium, et al.  The Court of Appeal held that an arbitration agreement that is signed after the employee initiates his lawsuit does not preclude compelling those claims to arbitration.  (Franco v. Greystone Ridge Condominium, et al., No. G056559, filed Aug. 14, 2019, certified for publication on Aug. 27, 2019). (more…)

Ninth Circuit Considers Whether Morbid Obesity is a Disability Under the Americans with Disabilities Act

Plaintiff Jose Valtierra, a facility maintenance technician, sued his employer Medtronic, Inc. alleging that he was terminated on account of his disability, morbid obesity, in violation of the Americans with Disabilities Act (ADA).  Mr. Valtierra worked for Medtronic, Inc. for about ten years.  By the last year of his employment, he had gained 70 pounds, taken time off due to joint pain, and struggled to walk.  Mr. Valtierra’s supervisor, noticing that the employee was struggling to walk, allegedly became concerned about whether Mr. Valtierra was able to complete his work assignments.  When the supervisor checked the computer system, he discovered that Mr. Valtierra had falsified work records, so Medtronic, Inc. terminated him.

The district court looked at whether Mr. Valtierra suffered from a disability for purposes of the ADA and whether Medtronic’s termination was unlawful.  (more…)

Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim

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. (more…)

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

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). (more…)

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

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. (more…)

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

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.  (more…)