Employment Law Case Notes
| Publication year | 2018 |
| Author | By Anthony J. Oncidi |
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.)
Connor v. First Student, Inc., 5 Cal. 5th 1026 (2018)
Eileen Connor worked as a school bus driver for Laidlaw Education Services, a company that was later acquired by First Student. First Student retained a consumer reporting agency to conduct background checks on its employees. The background reports elicited information about the employees, including their criminal records, sex offender registry status, address history, driving records, and employment history. Connor asserted in this class action lawsuit that First Student violated the California Investigative Consumer Reporting Agencies Act (ICRAA)1 because it failed to provide the appropriate statutory notice and did not obtain her written authorization to conduct the background check. First Student asserted that ICRAA is unconstitutionally vague because the statute overlaps with the California Consumer Credit Reporting Agencies Act (CCRAA),2 relating exclusively to credit checks. The California Supreme Court held that any partial overlap between the two statutes does not render one superfluous or unconstitutionally vague. Therefore, because First Student conducted a background check that reported on Connor's "character, general reputation, personal characteristics, or mode of living," it was an investigative consumer report subject to the stricter notice and authorization requirements of ICRAA. See also Dutta v. State Farm Mut. Auto. Ins. Co. , 895 F.3d 1166 (9th Cir. 2018) (holding that a procedural violation of the Fair Credit Reporting Act that did not result in harm or a material risk of harm is not actionable).
United States v. California, 314 F. Supp. 3d 1077 (E.D. Cal. 2018)
United States District Judge John A. Mendez issued an order enjoining California from enforcing parts of the California Immigration Workers Protection Act,3 a new state law that restricts private employers from cooperating with federal immigration enforcement. Among other things, the Act imposes fines on private employers up to $10,000 per violation if they "voluntarily consent" to giving federal immigration authorities access to nonpublic areas of a "place of labor" and/or to employee records, and mandates that the employer insist that the authorities obtain a judicial warrant or subpoena before such information can be turned over.4 The court sided with the U.S. Department of Justice in finding that several provisions of the law discriminate against private employers who cooperate with the federal government. In its Order, the court concluded that "these fines inflict a burden on those employers who acquiesce in a federal investigation but not on those who do not." Thus, the court found that "a law which imposes monetary penalties on an employer solely because the employer voluntarily consents to federal immigration enforcement's entry into nonpublic areas of their place of business or access to their employment records impermissibly discriminates against those who choose to deal with the federal government."
The court also struck down a provision of the law that limits an employer's ability to re-verify an employee's employment eligibility unless otherwise required by federal law, on the ground that it "frustrates the system of accountability that Congress designed."5 The court left standing an employer obligation to warn employees in writing of an imminent inspection of I-9 forms by federal immigration authorities.6 This decision means that private sector employers may no longer be prosecuted for: (i) consenting to a federal immigration enforcement agent's request to enter nonpublic areas in the workplace; (ii) granting federal immigration enforcement agents access to employee records; or (iii) re-verifying an employee's eligibility to work in the United States.
Golden v. California Emergency Physicians Med. Group, 896 F.3d 1018 (9th Cir. 2018)
[Page 5]
Donald Golden, M.D., is an emergency room doctor formerly affiliated with the California Emergency Physicians Medical Group (CEP), a large consortium of over 1,000 physicians that manages or staffs many emergency rooms in California and other western states. Dr. Golden sued CEP for various claims, including racial discrimination. Prior to trial, the parties settled the case and announced the terms orally in open court. Pursuant to the settlement, Dr. Golden received, among other things, a substantial monetary sum, and he agreed to waive any and all rights to employment with CEP or any facility that CEP may own or with which it may contract in the future. Dr. Golden later refused to execute the written agreement confirming the settlement and sought to have it set aside. The magistrate judge and the district court disregarded Dr. Golden's objections and ordered that he be compelled to sign the settlement agreement. Dr. Golden appealed, asserting that the no-employment provision in the settlement agreement was unlawful under Business & Professions Code § 16600, which invalidates "every contract by which anyone is restrained...
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