Employment Law Notes

• Publication year: 2015
• Author: By Anthony J. Oncidi

Employment Law 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.)

Google Required to Produce Emails in Response to Former Employer's Subpoena

Negro v. Superior Court, 230 Cal. App. 4th 879 (2014)

Navalimpianti USA, Inc. subpoenaed Google, Inc. to produce copies of email messages it had relating to one of Navalimpianti's former employees, Matteo Negro. Prior to initiating this action against Google in state court in California, Navalimpianti sued Negro and other former employees in state court in Florida for various breaches of duty pursuant to an alleged conspiracy that culminated in their entry into competition with Navalimpianti. After the Florida court issued an order directing Negro to send an email to Google consenting to disclosure of his emails, the California Court of Appeal in this opinion determined that the consent Negro expressly gave pursuant to the Florida court's order constituted "lawful consent" under the Stored Communications Act, rejecting Negro's assertion of "judicial coercion."

University Professor Was Properly Terminated for Refusing Fitness-for-Duty Exam

Kao v. University of San Francisco, 229 Cal. App. 4th 437 (2014)

Dr. John S. Kao was a tenured professor at USF (the University) who submitted a 485-page complaint (plus a 41-page addendum) to the University, alleging race-based discrimination and harassment. Kao was not satisfied with the University's two-page response, which he claimed did not offer any remedies for the problems that he perceived with the way the University recruited new faculty members. Soon, other professors became "terrified" of Kao's behavior, which included sudden bouts of yelling and screaming, uncontrollable rage, and references to his judo expertise. Kao hit one of his colleagues "forcefully on the shoulder," charged at another in a hallway, and began responding to various people at the University with a "wild cackling laugh."

In response, the University conducted an internal investigation and asked Kao to submit to a fitness-for-duty examination (FFD) to be conducted by an independent physician and to submit his medical records to the physician. When Kao refused, the University terminated his employment. Kao sued the University for, among other things, disability discrimination, invasion of privacy, and defamation. The trial court granted the University's nonsuit motion on Kao's defamation claim, and a jury found in...