Employment Law Case Notes

• Citation: Vol. 31 No. 5
• Publication year: 2017
• 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.)

Employee May Proceed With Sexual Orientation Discrimination Claim

Husman v. Toyota Motor Credit Corp., 12 Cal. App. 5th 1168 (2017)

Joseph Husman alleged sexual orientation discrimination based on the "perception he was too gay," as well as retaliation for alleged criticisms he made concerning Toyota's commitment to diversity. The trial court granted Toyota's summary judgment motion, but the court of appeal reversed dismissal of the discrimination claim on the ground that Husman had raised a triable issue of fact as to whether his termination was substantially motivated by discriminatory bias (i.e., an alleged dislike for "Husman's being too gay"). In so holding, the court rejected the "same actor" defense because, although the same supervisor who was responsible for Husman's advancement at Toyota also fired him, there was conflicting evidence of "cat's paw" influence that was allegedly exercised by another supervisor who "had it out for [Husman]." The court affirmed dismissal of Husman's retaliation claims in the absence of evidence of "pointed criticism or opposition [by Toyota] salient to an act reasonably believed to be prohibited by FEHA."

Employer's Attorney May Be Liable for Retaliation Under the FLSA

Arias v. Raimondo, 860 F.3d 1185 (9th Cir. 2017)

José Arnulfo Arias worked as a milker for Angelo Dairy. The dairy did not complete a Form I-9 (U.S. employment eligibility) when it hired Arias. According to the appellate court, "[i]nstead of complying with federal law, the Angelos wielded it as a weapon to confine Arias in their employ" by threatening to report him to the federal immigration authorities when, for example, he considered accepting employment with another dairy. In 2006, Arias filed a state court lawsuit against the dairy on behalf of himself and other similarly situated employees, alleging a variety of workplace violations, including failure to provide overtime pay and meal and rest periods. Ten weeks before the trial was scheduled to begin, the employer's attorney (Anthony Raimondo) enlisted the services of the United States Immigration and Customs Enforcement (ICE) to take Arias into custody at a scheduled deposition and then remove him from the United States. There was evidence of "Raimondo's pattern and practice of similar conduct in other cases." In this federal court lawsuit...