In many workplace harassment cases, it is often difficult to gather evidence or produce witnesses to testify regarding instances of harassment for a number of reasons. Often, the harassing conduct may take place in private and is undocumented. Where the offending conduct is witnessed by others, social pressure and fear of retaliation for testifying against an employer exacerbate the challenges in obtaining evidence. The difficulty in obtaining evidence can make it challenging for a plaintiff to prove the harassing conduct was “severe or pervasive.” In upholding a $500,000 jury verdict, the Fourth District Court of Appeals (“Fourth DCA”) recently provided further guidance on what evidence is sufficient to constitute severe and pervasive and actionable harassing conduct.[i]
In Wallace v. County of Stanislaus (2016) 199 Cal.Rptr.3d 462, a sheriff’s deputy brought a disability discrimination case against a County based on the County’s removing the sheriff’s deputy from his job as a bailiff, and placing him on an unpaid leave of absence based on an assessment the sheriff’s deputy could not safely perform his job duties as a bailiff. On appeal, the appellate court reversed the trial court’s decision to issue a jury instruction defining discriminatory animus in the context of an employer’s intent to discriminate against a disabled employee, finding it was not necessary to prove intent to discriminate.
On November 17, 2014, a California federal jury awarded $185 million in punitive damages to a San Diego woman who alleged she was fired by AutoZone Stores, Inc. after she complained she was demoted following the birth of her child. The $186 million award is believed to be the largest employment law verdict for an individual in U.S. history. The record award, however, is likely to be reduced on appeal.
The California Supreme Court recently ruled franchisor Domino’s Pizza could not be held liable for sexual harassment claims brought by a former employee of a franchisee because the franchisor was not a “joint employer” of the former employee (Patterson v. Domino’s). Taking a contradictory approach, the General Counsel’s office for the National Labor Relations Board (NLRB) has authorized charges against McDonald’s in its capacity as a franchisor.
There are risks when you employ domestic help. When a person brings someone into their home to perform domestic services, there could be an assumption that domestic help is immune from tax laws, wage/hour regulations, etc… Nothing could be further from the truth. In this article, we will discuss commonly used domestic help and corresponding pitfalls.
In Duran v. U.S. Bank National Association, Case No. S200923 (May 29, 2014), the Court held trial courts must conduct a more detailed analysis at the time of class certification relating to the resolution of individual defenses to class claims, including permitting employers to litigate individual defenses.
Over the past month, the California appellate courts have decided two more cases related to the enforceability of employer’s arbitration agreements. As discussed more extensively below, an agreement that is one-sided or oppressive in nature will be found unconscionable. However, in a positive development for employers, a delegation clause (allowing for the arbitrator to decide the arbitration agreement’s enforceability) will be enforced.
In the clash between the fast-growing world of social media and the plodding evolution of the law, we are faced with the application of old rules to new technology. What may seem like a sound response to protect a client’s online presence might nevertheless be disapproved of and even sanctioned by a court firmly rooted in centuries-old jurisprudence.
Here we go again! Congress proposed a bill several years ago that would make it easier for employees to pursue equal pay claims as class actions, titled “The Paycheck Fairness Act”. Republicans in the Senate rejected the bill for the third time in April 2014, recognizing there are adequate remedies available to female employees who feel they are paid unfairly.
A California Court of Appeal in Lewis v. City of Benicia, No. A134078 (Cal. Ct. App. Mar. 26, 2014) allowed a former intern’s sexual harassment suit to proceed against a former male supervisor and employer. Last year, the Fair Employment and Housing Act was amended to clarify that “[s]exually harassing conduct need not be motivated by sexual desire.” As such, for purposes of determining whether sexual harassment occurred or not, whether or not the alleged conduct was motivated by sex desire should not be part of an Employer’s analysis.
Employers frequently ask employees to sign arbitration agreements covering all disputes arising out of the employment relationship. Recently, the USSC issued rulings enforcing employment arbitration agreements. However, employees would much rather pursue litigation against their employers in court before a jury rather than before an arbitrator. Therefore, when a dispute arises, employees frequently try to get out of the agreement to arbitrate, especially in California where state courts are more likely to void such an agreement.
An aggressive approach to discovery can combat an unfounded civil lawsuit cloaked in an exception to workers’ compensation exclusivity. The defendant can serve extensive written discovery, including requests for admissions, targeting the basis for specific allegations of willful act and/or intoxication. Declarations and testimony from the plaintiff and other co-workers may be essential in defeating the exclusion.