California Employment Law Notes

• Publication year: 2022
• Author: Anthony J. Oncidi

CALIFORNIA EMPLOYMENT LAW NOTES

AUTHOR^*

Anthony J. Oncidi

SUMMARY JUDGMENT WAS PROPERLY GRANTED TO EMPLOYER IN WHISTLEBLOWER CASE

Vatalaro v. County of Sacramento, 79 Cal. App. 5th 367 (2022)

Cynthia J. Vatalaro sued the county for a violation of Cal. Lab. Code § 1102.5, alleging that the county illegally retaliated against her after she reported that she was working below her service classification, which she believed evidenced a violation of the law. The trial court granted summary judgment to the county. The Court of Appeal affirmed, but did so on different grounds. The appellate court applied the standard recently enunciated in Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022) and determined that the employer had succeeded in showing 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." The Court rejected the three-part burden-shifting framework that the parties and the trial court had applied pre-Lawson.

JOB APPLICANTS NEED NOT BE PAID FOR TIME/EXPENSES ASSOCIATED WITH DRUG TESTING

Johnson v. WinCo Foods, 37 F.4th 604 (9th Cir. 2022)

Alfred Johnson brought this class action against WinCo, seeking compensation as an "employee" for the time and expense of taking a drug test as a successful applicant for employment. Plaintiffs argued that because the drug tests were administered under the control of the employer, they qualified as "employees" under California law. The district court granted summary judgment in favor of the employer on the ground that plaintiffs were not yet employees when they took the drug test and the control test in California applies to control over the manner of performance of the work itself, not the manner of establishing qualifications to do the work as in this case. The Court also rejected plaintiffs' contract theory on the ground that they were not hired until they established they were qualified for the job by passing the drug test. The Ninth Circuit affirmed the judgment in favor of the employer.

EMPLOYER MAY HAVE WILLFULLY VIOLATED FCRA BY NOT PROVIDING EMPLOYEES PROPER BACKGROUND CHECK NOTICE

Hebert v. Barnes & Noble, Inc., 78 Cal. App. 5th 791 (2022)

The federal Fair Credit Reporting Act (FCRA) requires an employer to provide a job applicant with a standalone disclosure stating that the employer may obtain the applicant's consumer report when making a hiring decision. In this putative class action, Vicki...