United States: California Employment Law Notes - January 2014

TV Station's Failure To Hire Weather News Anchor Was Protected By Free Speech Rights

Hunter v. CBS Broadcasting, Inc., 221 Cal. App. 4th 1510 (2013)

Kyle Hunter sued CBS Broadcasting for age and gender discrimination after it refused to hire him as a weather news anchor. Hunter alleged that CBS "repeatedly shunned him for numerous on-air broadcasting positions due to his gender and age" and that excluding him was "part of a plan to turn prime time weather broadcasting over to younger attractive females." In response to the complaint, CBS filed a motion to strike pursuant to Cal. Code Civ. Proc. § 425.16, asserting that its selection of on-air weather reporters qualified as a protected exercise of its free speech rights. The trial court denied CBS's motion, but the Court of Appeal reversed, agreeing with the station that the selection of a news anchor is conduct in furtherance of the exercise of free speech rights. The Court remanded the matter to the trial court to determine whether Hunter had demonstrated a reasonable probability of prevailing on the merits – an issue the trial court had not reached. See also Kurz v. Syrus Sys., LLC, 221 Cal. App. 4th 748 (2013) (employer's cross-complaint against wrongful termination plaintiff for malicious prosecution of claim for unemployment benefits should have been stricken under anti-SLAPP statute).

Malpractice Claim Against In-House Counsel Should Not Have Been Dismissed

Yanez v. Plummer, 221 Cal. App. 4th 180 (2013)

Michael Yanez sued his former employer, Union Pacific Railroad Co., for wrongful discharge as well as Union Pacific's in-house counsel, Brian Plummer, for legal malpractice, breach of fiduciary duty and fraud. Union Pacific fired Yanez for dishonesty based upon a discrepancy between a witness statement that Yanez wrote and a deposition answer that he gave concerning another employee's on-the-job injury. At the deposition, Plummer represented both Union Pacific and Yanez (without first obtaining informed written consent from the clients as required by Rule of Prof. Conduct 3-310(C)). Yanez claimed the alleged dishonesty was a simple miswording in his witness statement that Plummer "manufactured [during the deposition] into something sinister for Union Pacific's benefit." The trial court granted summary judgment in favor of Plummer on the ground that Yanez could not meet the causation element of his claims. However, the Court of Appeal reversed, holding that it was Plummer's conduct during the deposition (in which Plummer questioned his own client) that highlighted the discrepancy between Yanez's deposition testimony and a witness statement Yanez had previously written about the accident, which ultimately resulted in the termination of Yanez's employment. See also Optimal Markets, Inc. v. Salant, 221 Cal. App. 4th 912 (2013) (Cal. Code Civ. Proc. § 128.7 sanctions motion against attorneys who prosecuted allegedly frivolous trade secrets claim in arbitration was properly denied).

Court Affirms $700,000 Attorney's Fee Award To Demoted Employee Who Recovered Only $27,280

Muniz v. United Parcel Serv., Inc., 2013 WL 6284357 (9th Cir. 2013)

Kim Muniz sued UPS for employment discrimination based on various theories, but proceeded to trial only on her claim of gender discrimination in violation of the Fair Employment and Housing Act.  The jury found in favor of Muniz only with respect to her claim that her demotion from division manager to supervisor was based on her gender and awarded her a total of $27,280 for lost earnings, medical expenses and non-economic damages.  After the trial, Muniz requested that the court grant her more than $1.9 million in prevailing-party attorney's fees, which the court adjusted downward to $698,000.  Over a spirited dissent from Judge Smith, a three-judge panel of the Ninth Circuit affirmed the award, holding that the district court had not abused its discretion in awarding fees to the employee even though the fees dwarfed the amount of the verdict by a factor of more than 25-to-1.  In his dissent, Judge Smith wrote that the lower court failed to explain how such a huge fee award "could have been reasonable in light of the mere $27,280 that plaintiff recovered in damages" and that the majority opinion "departs from and adds confusion to our well-settled jurisprudence governing the review of fee awards."

Former Employee Who Was Unemployed For Only Eight Months Was Properly Awarded Three Years Of Lost Wages

Villacorta v. Cemex Cement, Inc., 221 Cal. App. 4th 1425 (2013)

Alfredo Villacorta sued Cemex, his former employer, for wrongful termination in violation of public policy, intentional infliction of emotional distress and national origin discrimination. At trial, Villacorta's attorney asserted that he had suffered only $44,000 in lost wages during his eight months of unemployment following his allegedly wrongful termination, but the jury awarded him $198,000 after the judge told the jury that "The amount [of damages] is up to you." The Court of Appeal affirmed the judgment on the ground that the jury may have concluded that the new job Villacorta obtained (which paid him more than he was earning at Cemex) was actually inferior because it was located two to three hours away from his home.

Applicant For Union Organizer Job Was Unqualified Due To Prior Criminal Conviction

Horne v. International Union of Painters & Allied Trades, 221 Cal. App. 4th 1132 (2013)

Raymond E. Horne was a glazier and a member of the glazier's union. He also served as an officer and a member of the council and of the executive board of the union. Horne, who is African American, twice applied for an organizer position with the council but both times the position was filled by whites. Horne sued the union for racial discrimination under the Fair Employment and Housing Act. During discovery, Horne admitted that he had been convicted of possession of narcotics for sale and that he had served a prison term for that conviction. He also admitted that his citizenship rights had been revoked as a result of the conviction, but denied that those rights had not been restored. When, during the course of the lawsuit, the union found out about the conviction, it asserted that under federal law (29 U.S.C. § 504(a)), Horne was barred from employment as a union organizer because of the criminal conviction. The trial court granted the union's motion for summary judgment, and the Court of Appeal affirmed, holding that Horne was disqualified for the organizer position due to the criminal conviction. See also Dzakula v. McHugh, 737 F.3d 633 (9th Cir. 2013) (plaintiff's employment discrimination action was barred based on judicial estoppel doctrine due to her failure to list it in her Chapter 7 bankruptcy schedules); United States v. Kahre, 737 F.3d 554 (9th Cir. 2013) (criminal convictions affirmed for three defendants who paid employees their wages in gold and silver coins (later exchanged for cash) in order to avoid payment of payroll and income taxes).

Employee Could Proceed With Constructive Termination Claim

Vasquez v. Franklin Mgmt. Real Estate Fund, Inc., 2013 WL 6869682 (Cal. Ct. App. 2013)

Jorge L. Vasquez quit his job as a maintenance technician and sued for constructive discharge in violation of public policy and intentional infliction of emotional distress because he could "not tolerate the work environment of only being paid $10.00 per hour, not being paid for gas and having to drive around town for work without being reimbursed for mileage." The trial court sustained the employer's demurrers and dismissed the case, but the Court of Appeal reversed, holding that Vasquez could proceed with his constructive discharge claim based on his allegation that "the duties [the employer] assigned required such extensive driving that the [mileage] reimbursement to which he was entitled represented a significant percentage of his already low salary." Because Vasquez alleged that he was "effectively being paid less than the minimum wage" after he paid his own mileage expenses, his claim implicated a fundamental public policy in the form of California's minimum wage law. The Court affirmed dismissal of the claim for intentional infliction of emotional distress because of the absence of allegations of sufficiently severe emotional distress or outrageous conduct on the part of the employer. See also Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892 (9th Cir. 2013) (agricultural employer was required to reimburse its immigrant employees during the first week of work for inbound travel and immigration expenses to the extent such expenses lowered their compensation below the minimum wage).

Employees Who Were Denied Stay Bonuses Could Proceed With Claims For Fraud And Breach Of Contract

Moncada v. West Coast Quartz Corp., 221 Cal. App. 4th 768 (2013)

Three plaintiff-employees sued after they were denied bonuses they had been promised would be large enough for them to retire and that would be paid to them if they continued to work for the company until it was sold. The trial court sustained defendants' demurrers and dismissed the action, but the Court of Appeal reversed, holding that plaintiffs had sufficiently pled the elements of promissory estoppel, fraud and breach of contract. The Court rejected defendants' argument that the alleged promises were too vague to be enforceable. However, the appellate court affirmed dismissal of the claims for intentional infliction of emotional distress (no extreme or outrageous conduct alleged), negligent misrepresentation (no honest but unreasonable belief by defendants in the representations alleged) and "estoppel in pais" (no such cause of action under California law).

Owner-Operated Business With No Employees May Still Be A "Place Of Employment"

Under Anti-Smoking Law

Opinion of Cal. Attorney Gen. Kamala D. Harris, No. 12-901 (Dec. 20, 2013)

The question presented by the Hon. Jeff Gorell, Member of the State Assembly, is "Under what circumstances does an owner-operated business with no employees nevertheless constitute a 'place of employment' under Labor Code section 6404.5, which prohibits smoking in the workplace?" The Attorney General answered that such a workplace is covered by the anti-smoking statute when "employment of any kind is carried on at the business location – that is, even when such employment is carried on by persons who are employed by someone other than the business owner [e.g., workers rendering temporary clerical or accounting services, janitorial, maintenance or repair services]."

$377 Million Judgment Upheld For Tortious Interference With Contract

Asahi Kasei Pharma Corp. v. Actelion Ltd., 2013 WL 6726150 (Cal. Ct. App. 2013)

Asahi, a Japanese company that develops and markets pharmaceutical products and medical devices, entered into a licensing and development agreement with CoTherix (a California-based company) to develop and commercialize one of Asahi's drugs in North America and Europe. Actelion, a Swiss pharmaceutical company, that sells a drug that competes with Asahi's drug, acquired all of the stock of CoTherix through a subsidiary and concurrently notified Asahi that CoTherix would discontinue development of Asahi's drug for "business and commercial reasons." Asahi sued Actelion and three of its senior executives for tortious interference with the licensing agreement, among other things, and obtained a jury verdict of more than $577 million (including $30 million in punitive damages against the executives individually), which was subsequently reduced by the trial court to $377 million. The Court of Appeal affirmed the judgment, holding that the jury was properly instructed concerning tortious interference with contractual relations. The Court further held that the executives were properly found liable for tortious interference (even though they had acted within the scope of their employment) and that the "manager's privilege" defense did not apply because there was no contract between Actelion and Asahi – "The manager's privilege does not exempt a manager from liability when he or she tortiously interferes with a contract or relationship between third parties."

Non-Resident Professional Basketball Player Is Denied California Workers' Comp Benefits

Federal Ins. Co. v. WCAB (Johnson), 221 Cal. App. 4th 1116 (2013)

Adrienne Johnson, an applicant for California workers' compensation benefits, was a professional basketball player who was not employed by a California team, never resided in California, played only one professional game in California out of 34 games during the 2003 season and suffered no specific injury in California. In this action, she sought a workers' compensation award in California against her former non-California team and its insurer for a disability based on an alleged cumulative injury. The Court of Appeal held that California does not have a sufficient interest in this matter to apply its workers' compensation law or to retain jurisdiction over the case. See also AB 1309, 2013 Cal. Stats. Ch. 653 (amending Cal. Lab. Code § 3600.5 to exclude from workers' compensation benefits professional athletes who have spent less than 20 percent of their working days in California).

Auto Insurance Field Adjusters' Class Action Should Not Have Been Decertified

Williams v. Superior Court, 221 Cal. App. 4th 1353 (2013)

In this case, a putative class of auto field adjusters (led by Christopher Williams) who work for Allstate Insurance Co. claimed they were denied overtime because they worked more than eight hours per day and 40 hours per week and that Allstate's Work Force Management System incorrectly presumed that each adjuster's eight-hour workday began when the adjuster arrived at his first vehicle-inspection appointment of the day. Williams claimed the adjusters' (unpaid) overtime tasks included logging onto their work computers; downloading their assignments; making courtesy calls to auto repair shops and car owners to confirm appointments; checking their voicemail and traveling to and from their first appointment of the day. Although the class was initially certified, the trial court granted Allstate's motion to decertify the class following the Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). The Court of Appeal then summarily denied Williams' petition for a writ of mandate, but the California Supreme Court subsequently returned the matter to the Court of Appeal with directions to issue an order to show cause why the relief sought (vacating the decertification order and ordering certification of the class) should not be granted. In this opinion, the Court of Appeal issued a writ of mandate granting the relief sought by Williams on the ground that Dukes does not support decertification because California's class action statute differs from the federal law at issue in Dukes. The Court further noted that "differences in the amount of individual damages do not by themselves defeat class certification." See also Martinez v. Joe's Crab Shack, 221 Cal. App. 4th 1148 (2013) (denial of class certification of claims by managerial employees reversed and remanded); Jones v. Farmers Ins. Exch., 221 Cal. App. 4th 986 (2013) (same, involving uniform employer policy as applied to insurance claims representatives and adjusters); Palagin v. Paniagua Constr., Inc., 2013 WL 6657053 (Cal. Ct. App. 2013) (trial court should have dismissed employer's appeal from Labor Commissioner's award in employee's favor after employer failed to timely post an undertaking).

Ninth Circuit Certifies Suitable Seating Questions To The California Supreme Court

Kilby v. CVS Pharmacy, Inc., 2013 WL 6908934 (9th Cir. 2013)

The United States Court of Appeals for the Ninth Circuit certified questions to the California Supreme Court regarding Section 14(A) of California Wage Orders 4-2001 and 7-2001. Section 14(A) requires that "all working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats." The Ninth Circuit's questions include whether the phrase "nature of the work" refers to an individual task or duty that an employee performs during the course of his or her workday or whether courts should construe the term "holistically" and evaluate the entire range of an employee's duties; whether courts should consider the employer's business judgment as to whether the employee should stand, the physical layout of the workplace or the physical characteristics of the employee; and whether a plaintiff needs to prove what would constitute "suitable seats" to show the employer has violated Section 14(A).

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

Registration

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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Emails

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 .

Security

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.