CalEmployeeRights

Welcome to CalEmployeeRights.com

CalEmployeeRights.com is the premier weblawg devoted to California wrongful termination, discrimination, harassment and retaliation law from the perspective of the employee.  We hope you enjoy your visit here and that you learn something about this important and fast-changing area of California law.  The primary authors of posts in this blawg are Bruce Nye, David Becht and Michael Sachs.  We are all lawyers with Adams Nye Trapani Becht LLP in San Francisco.  We represent executives, managers and other employees in employment litigation, and you can read more about our practice here.

Paramoor Settles Sex Harassment Claims

    Paramoor, Inc., a company that owns and operates 9 restaurants in the Sacramento area, settled a claim brought by the EEOC on behalf of two female line cooks.  The cooks alleged that they were sexually harassed by the kitchen manager and a fellow coworker.  The alleged harassment included lewd comments and gestures, questions about their personal sex lives, propositions, and slapping on their buttocks. Paramoor settled the claims for $60,000 and an agreement to provide sexual harassment training.  The settlement did not include any admission of guilt or liability. 

    An article written when the suit was originally filed can be found here, while an article discussing the settlement can be found here. 

    -- Michael Sachs

"Me Too" Evidence Can Establish Discrimination

            In Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties, ___ Cal.Rptr.3d ___ (No. B198888), the California Appeals Court held that “me too” evidence (evidence that other employees were discriminated against) could be used to establish discrimination in a plaintiff’s employment discrimination case. 

 

            In Johnson, the plaintiff alleged that she was fired because she was pregnant and took disability leave related to her pregnancy.  The employer moved for summary judgment arguing that Johnson was terminated for performance reasons and falsifying timesheets.  In addition to offering evidence that the employer’s reasons were false, in opposing the summary judgment, Johnson offered declarations by several former employees that they were terminated because of their pregnancy.

 

More after the jump

 

US Supremes Decide Retaliation Case

            As previously discussed in this blog, one employment case before the Supreme Court during this term was Crawford v. Metropolitan Government of Nashville and Davidson County Tennessee.  Well, yesterday the Court issued its ruling in favor of the employee. 

 

Generally this case asked whether or not the anti-retaliation provision of the 1964 Civil Rights Act extends coverage to an employee who speaks out about discrimination in response to question put to her by her employer during an internal investigation as opposed to the employee actually initiating the complaint.  In a unanimous decision the Supreme Court held that the anti-retaliation provision protected the employee in such situations. 

 

            This ruling comports with how California courts interpret the protections of the California Fair Employment and Housing Act. 

 

For a more complete examination of the Crawford case and the arguments each side made, look at my earlier blog entry.  Additionally, a good discussion of the Supreme Court’s holding can be found here.

 

--Michael Sachs

More on the ADA Amendments Act of 2008

     There's a good synopsis of the changes to the Americans with Disabilities Act ("ADA") that was recently passed and signed into law on September 25, 2008 by Long, Alex B.,Introducing the New and Improved Americans with Disabilities Act: Assessing the ADA Amendments Act of 2008 (September 25, 2008). Northwestern University Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=1273922. The article applauds Congress' efforts to clarify many of the issues surrounding the ADA, while also pointing out many unresolved issues left for the courts to determine. (To check out the previous post on the topic, click here.)

     -- Mythily Sivarajah

Public Entities Are Liable For Violations Of FEHA

            In DeJung v. Superior Ct. (No. A116911, December 19, 2008) ___ Cal.App.4^th ___, the Court held that public entities can be found liable for violations of FEHA (Gov. Code § 12900 et seq.)  The Court of Appeals reversed a trial court ruling which held that public entities were protected from claims based upon an affirmative defense of discretionary immunity.  (Gov Code § 815.2(b) and Gov. Code § 820.2.)

More after the jump

Another Lawsuit Agianst Heller Ehrman

    I previously wrote about the class action brought against Heller Ehrman by a group of former employees (a copy of that post can be found here); well, now a former associate is suing Heller over unpaid wages and vacation time. 

    David Simon began work at Heller in 2005.  At the beginning of 2008 he was a third year associate and was entitled to 4 weeks paid vacation and a salary of $185,000.  On September 26, Heller sent an email to Simon, among other employees, informing him that Heller would be dissolving and that he would be paid his full salary through November 28.  But, on October 16 he received another email informing him that he would be terminated the following day.

    Simon's suit alleges that he has not received payment for his 6 weeks of accrued vacation time and that he should receive his full salary for the period between October 17 (when he was terminated) and November 28 (the date he was initially supposed to work until).

    A copy of Simon's complaint can be found here.

    --Michael Sachs

Wells Fargo Wrongfully Transferred Whistle-blower

    This San Francisco Chronicle article details a recent finding by the United States Department of Labor's OSHA finding that Wells Fargo wrongfully transferred a whistle-blower.  Investigators found the employee was improperly transferred after complaining that a colleague who reccomended unsuitable investments for customers.  OSHA awarded the employee $50,000 in back wages and lost bonuses and $25,000 for a damaged reputation.  Wells Fargo has indicated they intend to appeal the finding.

    --Michael Sachs

Cal. Supremes Hold That FEHA Statute Of Limitations Tolled By Pursuit Of Internal Remedies

        In McDonald v. Antelope Valley Community College Dist., ___ Cal.4th __ (No. S153964, Oct. 27, 2008) the Court found that the voluntary pursuit of internal remedies tolls the statute of limitations in a FEHA action.

                More after the jump

Former Employees Bring Class Action Against Heller Ehrman

In the world of law firms being sued by their former employees, there is the suit of Werth v. Heller, Ehrman, White, & McAuliffe LLP (Case No. C084799). This class action lawsuit was brought following the dissolution of the law firm Heller Ehrman. The class of plaintiffs allege that in terminating its employees and dissolving its partnership Heller Ehrman violated, among other things, the federal WARN Act (29 U.S.C. §2101 et seq.) and the California WARN Act (Cal. Labor Code §1400 et seq.).  Under both the federal and the California WARN Act, a company that conducts a mass layoff or plant closing is required to provide employees with sixty days advance written warning of the layoff or plant closing.

 

            In the Werth case, the plaintiffs claim that the class of class of employees was not provided with the proper warnings.  Additional coverage of the lawsuit can be found at Law.com. 

 

            --Michael Sachs

Plaintiff Employees Better Off Not Going to Federal Court

       At least those plaintiff employees pursuing employment discrimination suits are much more likely to fare better in state court. A recent study by two professors, Clermont and Schwab, titled, “Employment Discrimination Plaintiffs in Federal Court: From Bad to Worse?” reaffirms the commonly held view that plaintiffs in employment discrimination suits are not doing too well in federal court.
       The study found that plaintiffs won merely 15 percent of the time in employment discrimination cases in federal courts, whereas they won 50 percent in non-employment based actions.  Moreover, the study revealed that federal courts of appeals reverse 41% of decisions in favor of plaintiff employees in employment cases. In contrast, the same courts of appeals only reverse 8.7% of decisions in favor of defendant employers in employment cases.
       As a result of these stats clearly in plaintiffs’ disfavor, the study explains that fewer plaintiffs are suing in federal court. According to the study, from 1999 to 2007, the filing of employment law cases in federal court declined by 37%. While employment discrimination cases dominated the federal docket 5 years ago as the leading type of case, they only comprise 6% of the docket, coming in second to personal injury actions.
       To read the entire study and article, go here.
       --Mythily Sivarajah