Top Employment Cases of 2016
| Citation | Vol. 31 No. 1 |
| Publication year | 2017 |
| Author | By Ramit Mizrahi, Andrew H. Friedman & Anthony J. Oncidi |
By Ramit Mizrahi, Andrew H. Friedman & Anthony J. Oncidi
Ramit Mizrahi is the founder of Mizrahi Law, APC in Pasadena, where she represents employees exclusively. She focuses on discrimination, harassment, retaliation, and wrongful termination cases. She can be reached at ramit@mizrahilaw.com.
Andrew H. Friedman is a partner with Helmer Friedman LLP in Culver City, where he primarily represents employees in all areas of employment law. Mr. Friedman is the author of a leading employment law practice guide—Litigating Employment Discrimination Cases (James Publishing, 2007).
Anthony J. Oncidi is a partner in and the Chair of the Labor and Employment Department of Proskauer Rose LLP in Los Angeles. See page 16 for additional biographical information.
When compared to 2015, it may seem that 2016 was a slow year for new employment law cases. But we saw a number of new and important developments with respect to arbitration, disability, retaliation, attorneys' fees and costs, and wage and hour laws, among others.
In 2016, the California Supreme Court spoke definitively on arbitration, and the message was clear: the bar for unconscionability in arbitration agreements is higher than some other California courts have held in the recent past. In Baltazar v. Forever 21, Inc.,1 the court rejected a panoply of arguments challenging arbitration agreements. The court held that: (1) the failure to attach the arbitration provider's rules to the agreement does not in and of itself create procedural unconscionability unless the employee is challenging some element of the rules themselves that she was unaware of when signing the agreement; (2) it is not unconscionable to allow the parties to seek temporary restraining orders or preliminary injunctive relief in court, even if the employer is more likely to seek such relief; (3) listing employee claims as examples of claims subject to the agreement does not create a one-sided arbitration agreement; and (4) a confidentiality provision is not unconscionable if it is based on a need to protect trade secrets, does not limit use of the information in arbitration, and does not prevent the determination that any specific information was or was not a trade secret or otherwise qualified as confidential.
In Sandquist v. Lebo Auto., Inc.,2 the California Supreme Court addressed the question of who decides whether an arbitration agreement permits or prohibits classwide arbitration. The court held that "no universal rule allocates this decision in all cases to either arbitrators or courts."3 Instead, who decides is based on the parties' agreement, subject to interpretation under state contract law. Because the arbitration agreement at issue applied to all claims related to employment, its silence on who should decide the issue meant that the presumption in favor of arbitration resulted in the arbitrator deciding the question.
In Morris v. Ernst & Young, LLP,4 the plaintiff challenged a "concerted action waiver" arguing that it violated the National Labor Relations Act (NLRA) by interfering with the right of employees to pursue work-related legal claims together. Dismissing contrary holdings by the Second, Fifth, and Eighth Circuits, as well as the California Supreme Court, the Ninth Circuit joined the Seventh Circuit and held that the "concerted action waiver" violated the NLRA, thus adopting the view of the currently constituted NLRB. (On September 8, 2016, Ernst & Young filed a petition for certiorari with the United States Supreme Court; calendared for consideration on January 7, 2017.)
Several California Court of Appeal opinions emphasized the expansive protections for California workers in the disability context. Castro-Ramirez v. Dependable Hwy. Express, Inc.5 is the most notable, as it addressed potential accommodation obligations for those associated with people with disabilities.
For years, Castro-Ramirez had been accommodated in his work schedule so that he could be home in time each night to operate a dialysis machine for his disabled son. Then, his new supervisor rejected the scheduling agreement and allegedly fired him for refusing to work a shift that would have delayed him getting home in time for his son's dialysis. Castro-Ramirez sued for associational disability discrimination and failure to accommodate in violation of the Fair Employment and Housing Act (FEHA), among other things. He later abandoned the failure to accommodate claim. The defendant moved for summary judgment, which the trial court granted.
[Page 11]
The court of appeal reversed, finding a triable issue of fact with respect to the disability discrimination claim based on the express language of FEHA, specifically, Cal. Government Code § 12926(o): "'physical disability' . . . includes a perception . . . that the person is associated with a person who has, or is perceived to have" a physical disability. The original published opinion also held that FEHA creates a duty for employers to provide reasonable accommodations to applicants and employees who are associated with persons with disabilities. After a rehearing, however, the court retreated from its position, determining that because the plaintiff had abandoned his failure to accommodate cause of action, it would not decide that point. It stated in dicta, however, that
"when section 12940, subdivision (m) requires employers to reasonably accommodate 'the known physical . . . disability of an applicant or employee,' read in conjunction with other relevant provisions, subdivision (m) may reasonably be interpreted to require accommodation based on the employee's association with a physically disabled person."6
Because the cause of action was abandoned,
"[w]e only observe that the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination. . . ."7
Thus, whether employers have an obligation to accommodate workers who are "associated with" disabled individuals (including family members) remains undecided for now.
Moore v. Regents of the Univ. of California8 contains a lengthy, thoughtful discussion of perceived disability claims under FEHA as well as claims under the California Family Rights Act (CFRA). In this case, plaintiff Moore was a Director of Marketing for UC San Diego. She was diagnosed with idiopathic cardiomyopathy, and for a period of time wore a device called a "LifeVest" to monitor her condition. Plaintiff claimed that even though her condition did not impair her in the performance of her job duties, her supervisor treated her as if it did, taking away responsibilities and giving work assignments to others. The court of appeal held that the determination that an employee did not have a disability was not a proper basis to reject claims for failure to accommodate and failure to engage in the interactive process under FEHA. The court quoted the rationale laid out in Gelfo v. Lockheed Martin Corp.:
"An employer who is unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employee's abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions."9
The court also rejected the trial court's conclusion that Moore was not denied an accommodation because she was terminated prior to any denial of her request for time off for surgery.
With respect to the CFRA-based causes of action, the court rejected the argument that, because the plaintiff testified that she had not intended to use a protected leave for her surgery, she had not exercised her right to take CFRA leave. The court held that "the relevant question is not whether a plaintiff expressly requested CFRA leave, but rather whether she exercised her right to take leave and whether the purpose for the leave sought was a qualifying CFRA...
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