Employment Law Case Notes

• Citation: Vol. 30 No. 1
• Publication year: 2016
• Author: By Anthony J. Oncidi

Employment Law Case Notes

By Anthony J. Oncidi

Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles, where he exclusively represents employers and management in all areas of employment and labor law. His telephone number is (310) 284-5690 and his email address is aoncidi@proskauer.com. (Tony has authored this column without interruption for every issue of this publication since 1990.)

EEOC Is Entitled to More Information From Employer in Connection With Sex Discrimination Case

EEOC v. McLane Co., 804 F.3d 1051 (9th Cir. 2015)

Damiana Ochoa filed a charge with the EEOC alleging sex discrimination (based on pregnancy) in violation of Title VII. When she tried to return to her job following maternity leave, her employer (McLane Co.) informed her that she could not come back to the position she had held for eight years as a cigarette selector unless she passed a physical strength test. Ochoa took the test three times but failed to pass and, as a result, her employment was terminated. McLane disclosed that it administers the test to all new applicants and to employees returning from a leave that lasts longer than thirty days. Although McLane voluntarily provided general information about the test and the individuals who had been required to take it (gender, job class, reason for taking the test and the score received), it refused to disclose "pedigree information" for each test taker (name, social security number, last known address, telephone number, and the reasons why particular employees were terminated after taking the test).

In this EEOC subpoena enforcement action, the district court refused to compel production of the pedigree information, but the United States Court of Appeals for the Ninth Circuit reversed that order in this opinion. The Ninth Circuit also vacated the district court's order denying enforce-ment of the subpoena's request for reasons for termination of employees who took the test and ordered consideration by the district court of whether requiring production of such information would in fact be unduly burdensome. See also CVS Pharmacy, Inc. v. Superior Court, 241 Cal. App. 4th 300 (2015) (trial court abused its discretion by ordering employer to disclose names and contact information of current and former employees to plaintiff, who lacked standing to lead class challenging automatic termination policy for employees who failed to work any hours for forty-five consecutive days).

Court Affirms $118,000 Verdict in Favor of Fired Employee Who Reported a Crime To the Police

Cardenas v. M. Fanaian, D.D.S., Inc., 240 Cal. App. 4th 1167 (2015)

Rosa Lee Cardenas was terminated from her employment as a dental hygienist after she made a report to the police department that a coworker may have stolen her wedding ring at her workplace. Cardenas sued her employer (Dr. Fanaian) on the grounds that she was retaliated against in violation of Labor Code section 1102.5 (forbidding an employer from retaliating against an employee who has reported a violation of the law to a law enforcement agency) and was wrongfully terminated in violation of public policy. The jury found in favor of Cardenas and awarded her approximately $118,000 in damages. The...