United States: News Bites - February 2013

Kmart Victorious in First Suitable-Seating Trial

Kmart emerged triumphant in the first of the "suitable seating" cases to be tried.  In Garvey v. Kmart, a California federal district court evaluated the state's wage order provision that "All working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats."  After considering the evidence, which included agreement that seats could not be provided to cashiers at the Tulare store in a safe way that achieved legitimate business goals such as efficiency and projecting a customer-service focused image, the court concluded the plaintiff class failed to prove that the nature of a cashier's work reasonably permitted the seating modification urged by plaintiffs' counsel at trial.  Signaling for future cases, which involve different stores and cashier station configurations, the court invited a more developed record on use of a lean-stool. 

California Supreme Court Announces Sea-Change in Rules Governing Use of Parol Evidence to Show Fraud in Contract Interpretation

In Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Association, the California Supreme Court clarified and ultimately rewrote the applicable legal standard for introduction of parol (or oral) evidence that a written contract is tainted by fraud.  The Court overruled a decades-old doctrine that only allowed parol evidence that "tend[ed] to establish some independent fact or representation, some fraud in the procurement of the instrument or some breach of confidence concerning its use, and not a promise directly at variance with the promise of the writing."  While in the borrower-lender context, the decision is likely to have far reaching effects, including in employment contexts, since it lowers the bar for alleging and proving a fraudulent inducement claim.  For further information on the decision, see the January 28, 2013 Litigation Alert.

Discharge Lawful Where Store Manager Could Not Be Physically Present in Store

In Lawler v. Montblanc North America, LLC, the Ninth Circuit Court of Appeals (applying California law) recognized that adverse action because of a disability is unlawful discrimination only if "the disability would not prevent the employee from performing the essential functions of the job, at least not with reasonable accommodation."  Lawler, a manager for a Montblanc store in the Valley Fair Shopping Center, was responsible for "hiring, training, and supervising sales staff; overseeing and developing customer relations; administering stock and inventory; cleaning; creating store displays; and preparing sales reports."  It was undisputed that Lawler could perform her duties only in the store.  In 2009, Lawler was diagnosed with a chronic medical condition requiring a reduced workweek.  While Montblanc was evaluating her accommodation request, in a related incident, Lawler injured her foot.  Lawler presented certification of her need for leave through the holiday season and into January.  After unsuccessfully soliciting further information from her physicians to confirm whether alternative means existed to return Lawler to work, Montblanc terminated her employment because she could not be present in the store.  The court threw out Lawler's disability discrimination claim because Lawler's inability to be physically present in the store meant she could not perform the essential functions of her position even with the requested accommodation. 

FB Posts of Mexico Vacation Land Employee on FMLA Leave in Hot Water

In Lineberry v. Richards, an employee on FMLA leave due to back and leg pain so angered her colleagues by her Facebook posts of a Mexico vacation and other activities that they reported her for potential leave abuse.  When confronted with questions about the vacation, the employee asserted she used wheelchairs at both airports so she did not have to stand for long periods.  Upon further investigation, the employee admitted she had not used a wheelchair; other Facebook posts also showed the employee holding her grandchildren and described other social activity inconsistent with her alleged medical need for FMLA leave.  The employer terminated her employment for dishonesty and leave abuse.  A Michigan federal district court threw out the employee's claim that her employer interfered with her FMLA rights, finding the employer "treated [the employee] 'the same, whether or not she took leave,' as required and permitted by the FMLA."  Recognizing the limits of the FMLA, the court observed that, "Based on such undisputed dishonesty, [the employer] had a right to terminate [the employee] – without regard to her leave status because the FMLA does not afford an employee greater rights than she would have if she was not on FMLA leave."

Six-Month Claims Limitations Period In Arbitration Agreement Unconscionable

In Bowlin v. Goodwill Industries of Greater East Bay, Inc., a California federal district court found Goodwill's requirement, as part of an arbitration agreement, that employees file claims within a six-month limitations period to be one-sided, oppressive and overly harsh.  This is the latest in a line of cases finding, under California law, such limitations to be unconscionable, violative of an employee's statutory rights, and unenforceable under Armendariz.  Employers maintaining arbitration agreements that limit claims periods must do so with the full understanding that such limitations expose the agreement to attack.  If the arbitration agreement has a severability clause and withstands any other challenges for unconscionability, as was the case in Bowlin, it is possible a court will sever the provision and compel the parties to arbitrate the claims.  But, such a result is neither guaranteed nor usual.  Thus, employers should include limitations on claims periods only after consulting counsel and carefully balancing goals and legal risk. 

NLRB Continues Focus on Overbroad Employer Policies

Notwithstanding the uncertainty of the validity of the current NLRB quorum, the Board continues its focus on the intersection of employer policies and protected activity.  In In re DirectTV U.S. DirecTV Holdings LLC, the Board again found fault with broad prohibitions in employer policies that fail to distinguish between protected and unprotected activity.  Specifically, the court found four of the employer's policies – which prohibited contacting the media, communicating with law enforcement, or disclosing company information including employee records and information on the job or coworkers – failed to distinguish protected concerted activity from violation of the policies.  Examples of protected activity that could be chilled under the policies include communications with the media about labor relations and communications with Board agents or other enforcement officers.

Save the Date: Commissions Breakfast Briefing – May 7 (Mountain View, 8-10am) and May 8 (San Francisco, 9-11am)

AB 1396 became effective January 1, 2013, requiring all agreements to pay employees commissions based on services to be rendered in California to be in a writing signed by the employer and employee, with a copy retained by the employer. See October 2011 FEB. If your company has sales employees, you likely have (or need) a commission or compensation plan, but do you know the common legal pitfalls of such plans? Save the date and join us for a two-hour breakfast briefing in which we will review, among other things, common drafting mistakes, key provisions that should be included in every plan, and how plans impact exempt classifications.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
30 Nov 2017, Conference, San Francisco, United States

The 2017 agenda addresses significant pending legislative and regulatory changes along with our annual substantive updates.

5 Dec 2017, Webinar, California, United States

This highly interactive colloquium will provide a deep understanding and practical advice regarding major e-discovery challenges facing organizations today.

6 Dec 2017, Seminar, California, United States

Network and be seen as an information security thought leader. “The Exchange” colloquium is designed for senior business executives and security practitioners from both the public and private sector.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.