Case Review

Dynamex Independent Contractor Holding Applies Retroactively.

Facts

Janitors who purchased unit franchises from master franchisors filed putative class action alleging that janitorial cleaning business that entered into franchise agreements with master franchisors used its multi-leveled franchise model to misclassify them as independent contractors, rather than employees.  The Northern District of California entered summary judgment in favor of the business, and the janitors appealed.  The 9th Circuit certified the question of whether Dynamex Operations West, Inc. v. Superior Court (2018) applies retroactively to the California Supreme Court.

Holding

The CA Supreme court held that Dynamex applied retroactively, reasoning that the three elements of the ABC test were already prominent factors that were used to classify independent contractors.  Therefore,  Dynamex and its ABC test applies to cases not yet final as of the date the decision in Dynamex became final.

Employee’s Failure to Engage in Interactive Process Employment Claim Requires Evidence of Reasonable Accommodation.

Facts

Plaintiff began working for the Los Angeles Community College District (“District”) as a kitchen assistant in 2007.  In 2014, Plaintiff was diagnosed with carpal tunnel.  On December 18, 2015, Plaintiff injured her shoulder when opening the door of a heavy industrial dishwasher.  Plaintiff made a workers’ compensation claim and was diagnosed with a torn rotator cuff.  Plaintiff never returned to work after leaving the day of her shoulder injury.  Plaintiff sued alleging that the District had violated FEHA by failing to engage in the interactive process and provide reasonable accommodation.  At trial, the jury found in favor of Plaintiff.  The District argued that Plaintiff failed to prove that there was an available reasonable accommodation that could have been made at the times that Plaintiff alleged that Defendant failed to engage in the interactive process.  The trial court rejected this argument, reasoning that the availability of a reasonable accommodation is not an element of an interactive process claim.

Holding

Reversed.  To succeed on a cause of action for failure to engage in an interactive process, “an employee must identify a reasonable accommodation that would have been available at the time the interactive process should have occurred.”  Thus, substantial evidence does not support the jury’s verdict to the extent that they were based on Defendant’s handling of Plaintiff’s shoulder injury.  Because the verdict was ambiguous as to whether the jury found for plaintiff based in any part on the defendant’s response to her wrist injury, the case is remanded for a retrial.

Facts

Respondent Metropolitan Government of Nashville & Davidson County undertook internal investigation of rumors of sexual harassment by the Metro School District employee relations director, Hughes. When a human resources officer asked Petitioner Crawford if she had witnessed any inappropriate behavior by Hughes, she cited three examples of his behavior toward her. Hughes was not disciplined but Crawford was fired.

Crawford sued under Title VII of the Civil Rights Act of 1964, which prohibits employers from retaliating against employees who report workplace discrimination.

The U.S. Supreme Court granted review to resolve a split in the circuits over whether Title VII protects an employee who does not initiate a complaint but merely responds to questions during an investigation.

Holding

An employee has a retaliation claim even though she merely addressed discrimination in response to an internal investigation. Because California statutory law already recognized retaliation claims on this basis, there should be no major impact in California.

Facts

Defendant is a Delaware Corporation with its principal place of business in California. Plaintiffs are employed by Defendant as Instructors. Instructors are required to travel throughout the United States, including California, to perform work for Oracle. The Plaintiffs resided in Colorado and Arizona, but worked in California from 2001 through 2004. None of the Plaintiffs worked more than 33 days in California in any given year. Plaintiffs filed a Complaint alleging claims for violation of the Labor Code and California’s Unfair Competition Law for failing to pay overtime wages for the days they worked in California, and a third claim for failing to pay overtime throughout the United States. Defendant filed a motion for summary judgment and argued that California labor laws do not apply to non-residents who work primarily in other states. The District court granted summary judgment.

Holding

Reversed in part. California’s Labor Code applies to work performed in California by nonresidents of California. The Ninth Circuit applied California state law, where the Supreme Court has previously ruled that California’s employment laws govern all work performed within the state, regardless of the residence or domicile of the worker.

Facts

Plaintiff complained of discrimination in a letter to the Vice Chancellor of Human Resources, followed by a formal administrative complaint with the Chancellor’s Office in November of 2001. The Chancellor’s Office informed Plaintiff that she could also file a FEHA complaint with the Department of Fair Employment and Housing at any time. Plaintiff filed a DFEH complaint on October 11, 2002 and filed suit in the Superior Court on October 24, 2003. Defendant filed a motion for summary judgment, arguing that Plaintiff’s complaint was untimely because equitable tolling did not apply to Plaintiff’s voluntary pursuit of her complaint with the Chancellor’s Office prior to filing her complaint with the DFEH. The superior court granted the motion, and the Court of Appeal reversed.

Holding

Affirmed. The FEHA does not preclude equitable tolling during the voluntary pursuit of internal administrative remedies. The Legislature has demonstrated the intent to increase the common law remedies available to employees for employment discrimination. Where the purpose of equitable tolling is met, the promotion of resolution of employee grievances through internal administrative procedures, equitable tolling should be applied.

The statute of limitations on an employee’s FEHA claim is subject to equitable tolling When an employee voluntarily pursues an internal administrative remedy prior to filing a complaint under the California Fair Employment and Housing Act.

The ADA Amendments Act of 2008 became effective January 1, 2009. The Act has expanded protections of disabled workers under Federal law, bringing Federal disability laws in sync with already broad protections California offers disabled employees under the Fair Employment and Housing Act (FEHA.)

In the Amendments Congress expressed its intent to specifically overrule the U.S. Supreme Court’s holdings over the years with regard to the definition of “disabled.” Now, the term “disability” is to be interpreted broadly. And, according to the Amendments, the question of whether an individual’s impairment is a disability should not demand extensive analysis.

The following are some specific areas addressed by the Amendments:

An Impairment That Substantially Limits

A Major Life Activity. In order for an impairment to be considered a disability, it need not limit more than one major life activity.

The list of major life activities covered under the ADA has been expanded to include many previously recognized activities and to include a list of Major Bodily Functions not specified before such as digestive, neurological, respiratory, brain, reproductive and circulatory functions.

The Amendments also specify that an individual with an impairment which is episodic or in remission, will be considered disabled if that impairment substantially limits a major life activity when it is active.

Mitigating Measures

Congress specifically rejected the Supreme Court’s prior holing in Sutton v. United Airlines, and its companion cases, that required a court to consider whether mitigating measures such as medication, should be considered in determining whether an individual is disabled under the ADA. Now, the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, other than “ordinary eyeglasses or contact lenses.”

Regarded as Having an Impairment

One area where Congress actually limited the ADA’s coverage is with respect to individuals who are regarded as disabled.

Now, it is clear that an employer need not provide a reasonable accommodation to an individual who is not actually impaired, but is merely regarded as having an impairment that affects a major life activity.

Such an individual may still have a discrimination claim against his employer on another ground, but he or she is not entitled to an accommodation for a nonexistent disability.

Further, the definition of a disability, which includes a person regarded as having an impairment that substantially limits a major life activity, will not extend to a “transitory impairment” with an actual or expected duration of 6 months or less.

How do the Amendments Affect the California Employer?

As a practical matter, for California employers, these Amendments mean little since California law has long offered extremely broad protections to the disabled in the employment arena. However, California courts will now be able to look to Federal law more readily for interpretive cases to guide their decisions in disability-discrimination cases.

And, the ADA Amendments Act should serve as a good reminder to review your policies with regard to hiring, firing and managing your employees so that your business handles all issues regarding disabled employees and applicants in compliance with these broad laws.

Facts

Alicia Haberman was employed by Cengage as a text book sales representative. After she was placed in a “performance improvement program” following consecutive years of failing to meet her sales goals, Haberman sued Cengage, her former supervisor (Reed), and Cengage’s national manager (Bredenberg) for sexual harassment under FEHA and other causes of action.

The trial court granted summary judgment for defendants, finding that the alleged acts of harassment did not rise to the level of establishing a hostile work environment as a matter of law. Haberman appealed.

Holding

Affirmed. The hostile work environment form of sexual harassment is actionable only when the harassment is pervasive or severe. There is no recovery for harassment that is occasional, isolated, sporadic, or trivial. Here, the conduct alleged by Haberman occurred over an extended period and consisted of a few isolated comments and mild innuendos. Plaintiff did not show a concerted pattern of harassment of a repeated, routine or generalized nature. As a matter of law, the conduct alleged by plaintiff did not constitute a hostile work environment.

Facts

PTG employees are allowed an uncapped number of compensated days off for their own illnesses. However, PTG does not maintain a policy to pay employees for absences to care for ill family members. PTG’s attendance policy has a progressive discipline scheme, but absences are excluded from discipline if they constitute protected leave under workers compensation or FMLA. Plaintiffs filed a complaint alleging PTG failed to provide paid leave under Labor Code § 233, which allows an employee to use accrued sick leave to attend to an ill family member. PTG filed a motion for summary judgment and Plaintiffs filed a motion for summary adjudication seeking a determination whether PTG’s sickness absence policy constituted “sick leave” within the meaning of § 233. The trial court granted PTG’s motion for summary judgment on the basis that PTG’s sickness absence policy did not constitute “sick leave” pursuant to § 233. Plaintiffs appealed and the appellate court reversed, holding that PTG’s sickness absence policy did constitute “sick leave” within the meaning of § 233.

Holding

Reversed. Labor Code § 233 applies to “accrued and available sick leave.” It does not apply to paid sick leave policies that provide for an uncapped number of days off. Where sick leave is not accrued, it is impossible to determine how much sick leave an employee is entitled to and how much could be used to attend to an ill family member. Employees had other types of leave available to use to care for family members.

Facts

In 1998, Plaintiff began working as a water treatment operator for the City of Holtville. By September 2002, Plaintiff has been promoted to a Grade III operator. On September 10, 2002, while Plaintiff was moving a large L-shaped piece of metal from one room to another, the metal hit a wall and severely injured the Plaintiff’s neck. Plaintiff suffered two herniated discs that required immediate surgery. Plaintiff applied for workers’ compensation benefits and was examined by a physician on behalf of the Defendant who concluded, unbeknownst to the Plaintiff, that she would not be able to return to work at the water treatment plant. In March 2004, Plaintiff received a letter from Defendant City terminating her employment. The letter stated that based on the physician’s evaluation, Plaintiff could not return to her customary position because there was no job within the City which she could reasonably perform. Plaintiff sued alleging that Defendant had violated FEHA by failing provide effective accommodations for her disability. At trial, Defendant contended it had met its obligations under the FEHA because Plaintiff had never sought an accommodation for her disability and, in any event, no accommodation was possible because she could not perform the essential functions of her job. The trial court determined that Defendant had failed to provide a reasonable accommodation for her disability. Defendant appealed.

Holding

Reversed. Section 12940(n) requires that an employer, “engage in a timely, good faith, interactive process with the employee…to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee…” By its terms, section 12940(n) requires that the employee initiate the process. The Plaintiff did not meet her obligation under the statute and no obligation to engage with her with respect to possible accommodation arose.