United States: California Employment Law Notes (July 2015)

Employee's Inability To Work For A Particular Supervisor Does Not Constitute A "Disability"

Higgins-Williams v. Sutter Med. Found., 237 Cal. App. 4th 78 (2015)

Michaelin Higgins-Williams worked as a clinical assistant in Sutter's Shared Services Department. Higgins-Williams reported to her treating physician that she was stressed because of interactions at work with human resources and her manager. Her physician diagnosed Higgins-Williams with "adjustment disorder with anxiety," and Sutter granted her a stress-related leave of absence of slightly more than 30 days. After returning from the leave of absence, Higgins-Williams received a negative performance evaluation and had additional conflicts with her manager. Shortly thereafter, she submitted a disability accommodation request form in which she sought a transfer to a different department and an additional leave of absence. Following additional leaves of absence, which extended for more than a year, Sutter eventually terminated Higgins-Williams' employment. In her lawsuit, Higgins-Williams alleged disability discrimination, wrongful termination and related claims. The trial court granted the employer's motion for summary judgment, and the Court of Appeal affirmed on the ground that Higgins-Williams was not disabled because "an employee's inability to work under a particular supervisor because of anxiety and stress related to the supervisor's standard oversight of the employee's job performance does not constitute a mental disability under FEHA." Because Higgins-Williams had failed to indicate to the employer when or if she could return to work, her claim for violation of the CFRA/FMLA was also properly dismissed. See also Roman v. BRE Properties, Inc., 2015 WL 3767790 (Cal. S. Ct. 2015) (unsuccessful plaintiffs in housing disability discrimination lawsuit may not be liable for defendant's costs under the FEHA).

Muslim Applicant Can Proceed With Religious Discrimination Lawsuit

EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. ___, 135 S. Ct. 2028 (2015)

Samantha Elauf, a practicing Muslim, wore a headscarf when she interviewed for a job with Abercrombie & Fitch. Although the headscarf was not discussed during the interview, the store allegedly decided not to offer Elauf a position after speculating that Elauf had probably worn the headscarf for religious reasons and concluding that the headscarf would violate the store's "Look Policy," which prohibits the wearing of "caps" as too informal for Abercrombie's desired image. The EEOC, which sued Abercrombie on Elauf's behalf, obtained summary judgment from the district court based on its claim that the store had violated Title VII by refusing to hire Elauf. The appellate court reversed the district court on the ground that an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant or employee provides the employer with actual knowledge of his or her need for an accommodation. In this opinion, the United States Supreme Court reversed the court of appeals and held that in order to prevail in a disparate treatment claim, an applicant must show only that his or her need for an accommodation was a motivating factor in the employer's decision – not that the employer had actual knowledge of the need for an accommodation.

Unpaid Interns Who Are "Primary Beneficiaries" Of The Relationship Are Not Employees Under The FLSA

Glatt et al. v. Fox Searchlight Pictures, Inc. et al., 2015 WL 4033018 (2d Cir. 2015)

Plaintiffs Eric Glatt and Alexander Footman were retained as unpaid interns on the Fox Searchlight-distributed film Black Swan; Plaintiff Eden Antalik interned at Fox Searchlight's corporate offices in New York City. Glatt and Footman sued for unpaid wages (minimum wage and overtime) under the federal Fair Labor Standards Act ("FLSA") and the New York Labor Law, while Antalik moved to certify a class of unpaid interns who were retained at certain Fox corporate divisions in New York and a nationwide FLSA collective of unpaid interns retained by those same divisions nationwide. The district court granted summary judgment in favor of Glatt and Footman, concluding they had been improperly classified as unpaid interns rather than employees, and granted Antalik's motions to certify the class of New York interns and to conditionally certify the nationwide FLSA collective. The United States Court of Appeals for the Second Circuit reversed the district court, holding that the proper question is whether the intern/employee in question is the "primary beneficiary" of the relationship. The Court of Appeals concluded that in the context of unpaid internships, a "non-exhaustive set of considerations" should be used, including the reasonable expectations of the parties, the training opportunities available to the intern, the connection to a formal education program, the limited duration of the relationship, etc., and that "no one factor is dispositive and every factor need not point in the same direction..." The Court also reversed the certification of the class and the FLSA collective because the district court had "misconstrued our standards for determining when common questions predominate over individual ones." See also Wang v. The Hearst Corp., 2015 WL 4033091 (2d Cir. 2015) (same).

Independent Contractor Can Proceed With Sexual Harassment Claim Against City

Hirst v. City of Oceanside, 236 Cal. App. 4th 774 (2015)

Kimberli Hirst, an employee of American Forensic Nurses, Inc., sued the City of Oceanside after she was allegedly sexually harassed by an Oceanside police officer while providing phlebotomist services on behalf of the Oceanside Police Department. A jury awarded Hirst $1.5 million, which the trial court reduced to $1.25 million. In its motion for judgment notwithstanding the verdict ("JNOV"), the City asserted that Hirst was not a City employee, special employee or "person providing services pursuant to a contract." The trial court denied the City's JNOV motion, and the Court of Appeal affirmed, holding that Hirst was a "person providing services pursuant to a contract" as defined in Cal. Gov't Code § 12940(j)(1) even though she was not herself an independent contractor, but an employee of a business that had entered into a contract with the City.

Department of Corrections Did Not Discriminate Against Male Applicants By Hiring Female Guards In Women's Prisons (Orange Really Is The New Black!)

Teamsters Local Union No. 117 v. Washington Dep't of Corrections, 2015 WL 3634711 (9th Cir. 2015)

In the face of repeated instances of sexual abuse and misconduct by prison guards in its women's prisons, the state of Washington determined that a primary driver was the lack of female correctional officers to oversee female offenders and administer sensitive tasks such as observing inmates showering and dressing and performing pat-downs and strip searches. The state undertook a comprehensive assessment and ultimately designated a limited number of female-only correctional positions. In response, the prison guards' union, Teamsters Local No. 117, challenged the number of positions reserved for females (claiming it should be no more than 50 instead of 110) and claimed discrimination based upon sex in violation of Title VII. The district court granted summary judgment in favor of the state, and the United States Court of Appeals for the Ninth Circuit affirmed, holding that "the Department was well-justified in concluding that rampant abuse should not be an accepted part of prison life and taking steps to protect the welfare of inmates under its care."

Malicious Prosecution Action Against Employer's Law Firm Was Properly Dismissed

Parrish v. Latham & Watkins LLP, 2015 WL 3933988 (Cal. Ct. App. 2015)

In a prior litigation, FLIR Systems, Inc. and Indigo Systems Corp. (collectively, "FLIR") brought suit against their former employees, William Parrish and E. Timothy Fitzgibbons (the "Former Employees"), for, among other things, misappropriation of trade secrets. The Former Employees defeated the claims and then obtained a ruling that the misappropriation of trade secrets claim had been brought against them in bad faith, which resulted in an order that FLIR pay the Former Employees their attorney's fees and costs in an amount exceeding $1.6 million. Thereafter, the Former Employees brought this malicious prosecution claim against FLIR's attorneys (Latham & Watkins LLP), which Latham moved to strike under the anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16). The trial court granted the motion, and the Court of Appeal affirmed, but on different grounds – holding that pursuant to the interim adverse judgment rule, the denial of a dispositive motion on the merits in the underlying action (in this case, a summary judgment motion) established the existence of probable cause and precluded a subsequent malicious prosecution action. See also Castaneda v. Superior Court, 2015 WL 3892154 (Cal. Ct. App. 2015) (law firm of attorney who served as a settlement officer in the Los Angeles Superior Court's CRASH program is disqualified from subsequent representation of one of the parties that participated in the program with the attorney in question).

Employer Properly Withheld Taxes From Payment Of Judgment Amount

Cifuentes v. Costco Wholesale Corp., 2015 WL 3932948 (Cal. Ct. App. 2015)

Carlos Cifuentes won a judgment for lost wages against his former employer, Costco. Costco withheld federal and state payroll taxes from the award in response to which Cifuentes claimed the judgment was not satisfied, citing a 1992 appellate court opinion holding that an employer is not required to withhold payroll taxes from an award of lost wages to a former employee. The trial court determined the withholding was improper and denied Costco's motion for acknowledgement of satisfaction of the judgment, but the Court of Appeal reversed, holding that "an employer who fails to withhold payroll taxes from an award of back or front pay to a former employee exposes itself to penalties and personal liability for those taxes" and expressly declined to follow the earlier opinion of the Court of Appeal. See also Rodriguez v. Cho, 236 Cal. App. 4th 742 (2015) (default judgment is set aside because it exceeded the amount demanded in the complaint).

Facebook User's Criminal Conviction For Making Threats Against Wife, Co-Workers And Others Is Reversed

Elonis v. United States, 575 U.S. ___, 135 S. Ct. 2001 (2015)

Anthony Douglas Elonis (aka "Tone Dougie") posted on Facebook various self-styled rap lyrics containing graphically violent language and imagery concerning his wife (who had left him), co-workers, a kindergarten class and state and federal law enforcement. Although Elonis interspersed his posts with disclaimers about the First Amendment and statements that the lyrics were "fictitious" and not intended to depict real persons, many people who knew him saw the posts as threatening, including his wife (who had obtained a protection-from-abuse order against him) and his boss who had fired him for threatening co-workers. After Elonis's former employer informed the FBI about the posts, he was arrested and prosecuted for five counts of violating 18 U.S.C. § 875(c), which makes it a federal crime to transmit in interstate commerce "any communication containing any threat... to injure the person of another." Elonis was convicted of four of the five counts but argued on appeal that his requested (and denied) jury instruction that the government had to prove that he had intended to communicate a "true threat" should have been given. The United States Supreme Court reversed the conviction and remanded the case for further proceedings, holding that the government has to prove the defendant transmitted a communication for the purpose of issuing a threat or with the knowledge that the communication would be viewed as a threat – and that merely proving that the defendant's posts could be viewed by a reasonable person as threatening is not enough.

False Claims Act Lawsuit Was Partially Barred By Statute Of Limitations But Not First-To-File Rule

Kellogg Brown & Root Servs., Inc. v. United States ex rel. Carter, 575 U.S. ___, 135 S. Ct. 1970 (2015)

Petitioners were employed by defense contractors that provided logistical services to the United States military during the armed conflict in Iraq. They filed a qui tam complaint against various defense contractors, alleging the contractors had fraudulently billed the government for water purification services that were not performed or not performed properly. Following a "remarkable sequence of dismissals and filings," the defense contractors sought dismissal of the third complaint filed against them on two grounds (statute of limitations and the first-to-file rule). The United States Supreme Court held that the Wartime Suspension of Limitations Act applies only to criminal offenses and thus did not suspend the running of the statute of limitations applicable to a civil complaint such as petitioners'. However, the Court held that the one claim that was not barred by the statute of limitations also was not barred by the first-to-file rule because a qui tam suit under the FCA ceases to be "pending" once it is dismissed. See also Falk v. Children's Hosp. Los Angeles, 2015 WL 3895464 (Cal. Ct. App. 2015) (American Pipe tolling doctrine precluded dismissal of claims subject to a three- or four-year limitations period); Escobedo v. Applebees, 2015 WL 3499902 (9th Cir. 2015) (the filing date of a complaint is the date it is delivered to the clerk, either with or without an application to proceed in forma pauperis ("IFP"); it is an abuse of discretion to deny an IFP application based upon a spouse's financial resources unless there is a reasonable inquiry into whether the spouse's resources are actually available to the would-be plaintiff and whether the spouse in fact has sufficient funds to assist in paying the fee).

Employee Who Was Fired For Attempting To Buy Shoes For A Friend At Company Expense Was Entitled To Unemployment Benefits

Robles v. Employment Dev. Dep't, 236 Cal. App. 4th 530 (2015)

Jose Robles had a $150 shoe allowance that he attempted to use for a friend who needed shoes. When his employer found out, Robles was fired and was subsequently denied unemployment benefits for willfully disregarding his employer's interests. In a prior appeal from the denial of benefits, the appellate court held that Robles's conduct "evinced at most a good faith error in judgment." In this opinion, the Court of Appeal affirmed the trial court's Enforcement Order granting unemployment benefits to Robles. See also South Coast Framing, Inc. v. WCAB, 61 Cal. 4th 291 (2015) (family of worker who died from a combination of drugs prescribed following a fall at work was entitled to workers' compensation death benefits).

Texas Choice Of Forum and Choice Of Law Provisions Violated California Public Policy

Verdugo v. Alliantgroup, L.P., 237 Cal. App. 4th 141 (2015)

Rachel Verdugo, an associate director in the Irvine office of Alliantgroup, filed this putative class action against her employer for various violations of the California Labor Code governing overtime compensation, meal and rest breaks, vacation pay, the Private Attorneys General Act and accurate wage statements. When she was hired, Verdugo had signed an "Employment Agreement" that included a combined choice-of-law provision (invoking Texas law) and forum selection clause, requiring the sole venue for disputes to be in Harris County, Texas – the location of Alliantgroup's corporate headquarters where Verdugo had had "only minimal contact." The trial court granted the employer's motion to stay the action based on the forum selection clause. The Court of Appeal reversed, holding that Alliantgroup had failed to meet its burden to show that enforcing the forum selection clause would not significantly diminish Verdugo's unwaivable statutory rights under California law. The Court was not persuaded by Alliantgroup's argument that a Texas court "would most likely" reject the parties' choice-of-law clause and apply California law. The Court further concluded that "Alliantgroup fails to show the remedies Texas law provides are 'adequate,' let alone that enforcing the forum selection clause would not diminish Verdugo's rights."

PAGA Plaintiff Was Properly Denied Names And Contact Information Of Statewide Employees

Williams v. Superior Court, 236 Cal. App. 4th 1151 (2015)

Michael Williams was an employee of Marshalls of CA in Costa Mesa, California. After slightly more than a year of employment, Williams brought a representative action against Marshalls under the Labor Code Private Attorneys General Act of 2004 ("PAGA"), alleging Marshalls had failed to provide its employees with meal and rest breaks, accurate wage statements, reimbursements for necessary business-related expenses and to pay all earned wages during employment. During discovery, Williams served special interrogatories seeking the names and contact information of all nonexempt Marshalls employees in California who had worked for the company in the previous two years. Marshalls objected, and the trial court ordered Marshalls to produce contact information only for the employees who had worked at the Costa Mesa store, denying contact information for employees who worked at the other 128 Marshalls stores in California. Williams filed a petition for writ of mandate compelling the trial court to vacate its discovery order and to enter a new order granting Williams' motion to compel production of a list of all employees statewide. The Court of Appeal denied the petition, holding that discovery of Marshalls's employees' contact information statewide is premature and that the employees' privacy interests outweigh Williams' need for immediate disclosure of such information – "The courts will not lightly bestow statewide discovery power to a litigant who has only a parochial claim." See also Munoz v. Chipotle Mexican Grill, Inc., 2015 WL 3958999 (Cal. Ct. App. 2015) (trial court's order denying plaintiffs' motion for class certification and granting Chipotle's motion to deny class certification is a nonappealable order because the PAGA claims remain pending in the trial court); Allen v. Bedolla, 2015 WL 3461537 (9th Cir. 2015) (district court properly denied objectors' untimely motion to intervene, but failed to satisfy the criteria for determining substantive fairness of settlement of class action).

There Is No Private Right Of Action For Misclassification Of Individual As An Independent Contractor

Noe v. Superior Court, 237 Cal. App. 4th 316 (2015)

Several vendors who sold food and beverages at various entertainment venues in southern California sued for failure to pay minimum wage and willfully misclassifying them as independent contractors in violation of Cal. Lab. Code § 226.8. In this opinion, the Court of Appeal held that Section 226.8 applies not only to employers who make a misclassification decision but extends to any employer who is aware that a co-employer has willfully misclassified their joint employees and fails to remedy the misclassification. However, the Court further held that Section 226.8 cannot be enforced through a direct private action and may be enforced only by the California Labor Commissioner. On that basis, the Court denied plaintiffs' petition for writ of mandate.

California Employment Law Notes (July 2015)

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.

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
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 you may opt out by clicking here

    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.

    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.

    By clicking Register you state you have read and agree to our Terms and Conditions