Archives for Employment Law

A Uniform Way of Misclassifying Employees As Exempt is Insufficient for Class Commonality

March 26, 2013

By:  Christopher P. Wesierski and Ashley A. Reagan

Plaintiff William Dailey (Plaintiff) brought a wage and hour class action lawsuit against Defendant Sears, Roebuck and Co. (Sears).  The employees who sought to be part of the class were  managers and assistant managers of the Sears Auto Centers in the San Diego area.  The managers were classified in three separate levels- Auto Center Coach I, II and III.  Level III managers were classified as exempt employees while level I and II managers were classified as nonexempt.   Assistant managers were also classified as exempt employees who were not paid overtime.  Plaintiff worked at one of the auto centers as an assistant manager and then a manager.  The complaint alleged that all managers and assistant managers should be classified as nonexempt and should receive pay for overtime work and receive rest and meal breaks.

The Industrial Welfare Commission (IWC) wage order  No. 4-2001 sets forth exemptions from overtime pay requirements for executive, administrative and professional employees.  This exemption includes managerial and supervisorial positions.  The general test for determining whether an employee is properly classified as exempt is if he primarily engages in the following duties: (1) Responsible for the management of the enterprise in which he is employed; (2) Regularly directs the work of 2 or more employees; (3) Has the authority to hire or fire; and (4) Regularly exercises discretion and independent judgment.  Plaintiff utilized this test to argue that the managers should not be classified as exempt because they spent 50 percent of their time performing nonexempt work and did not regularly exercise independent judgment.

Plaintiff moved for class certification, arguing that certification was proper, despite the fact that some managers were exempt and others were not, because Sears had uniform policies requiring all of its managers to spend the majority of their time performing non-managerial, nonexempt work.  Sears moved to preclude class certification arguing that determining how the class members actually spend their time necessitated individualized inquiry.  The declarations submitted by the parties fundamentally disagreed on the percent of nonexempt work and the daily tasks that were performed by the employees.

The trial court denied class certification finding that commonality was lacking and that a class action was not the superior method for resolving Plaintiff’s claims.  The court of appeal affirmed.  The court determined that a uniform manner of misclassifying employees as exempt is not amenable to proof on a classwide basis.  Class actions in California require proof of a sufficiently numerous, ascertainable class, of a well-defined community of interest, and that class certification provide a substantial benefit to litigants.  The purported class could not meet the community of interest requirement.  The issue of misclassification required individual inquiries as to how each employee spent his time.  The random sampling methodology proposed by Plaintiff did not fix this issue.  A mere proposal of statistical sampling is not an adequate evidentiary substitute for demonstrating the requisite commonality.

Facts and analysis based upon William Dailey v. Sears, Roebuck and Co., decided on March 20, 2013 by the California Court of Appeal, Fourth District.

Qualifying Temporary Teachers Must Be Given First Priority When Filling Comparable Vacant Positions

March 25, 2013

By:  Christopher P. Wesierski and Ashley A. Reagan

Plaintiff Gloria Henderson is a first generation Chinese American who has a Masters Degree in English and Psychology, as well as a teaching credential.  In 2008, she took over the Advanced Placement (AP) English Program at Corona del Mar High School as a temporary teacher.  She was rehired the 2 following school years as a temporary teacher and assigned to teach the same AP courses.  She was part of a mass layoff by Defendant Newport-Mesa Unified School District (“the District”).   

Plaintiff sued Newport-Mesa Unified School District alleging that the District failed to give her first priority when it elected to fill a vacant position in the subject matter she had previously taught, as required by Education Code section 44918, and that the District discriminated against her on the basis of her race, in violation of the California Fair Employment and Housing Act (FEHA).  The trial court dismissed Plaintiff’s complaint after it sustained a demurrer to the complaint without leave to amend.  The trial court found that Plaintiff’s claims were barred by res judicata because she had participated in administrative proceedings related to her layoff.  In addition, the trial court found that section 44918 did not give Plaintiff a private right of action.     

The court of appeals reversed the judgment.  It found that Plaintiff’s participation in the previous administrative hearing did not bar her claims because the hearing involved the lay off of a large number of employees.  In reference to Plaintiff, the hearing only addressed her claim that she was improperly classified as a temporary employee and did not address her claims of first priority or racial discrimination.  Further, section 44918 allows an individual to state a claim against a school district because it imposes a mandatory duty to give first priority.  Section 44918 requires a school district to give temporary teachers first priority in filling vacant positions if those teachers have been temporary employees for 75 percent of 2 consecutive years.  This section does not require that the teacher be employed for 2 consecutive years after being released.  Therefore, even when a school district has given a notice of release to a temporary teacher, if the district has chosen to retain the teacher over two consecutive years, it must give that teacher first priority in the event it elects to fill a vacant position for which that teacher is qualified in the subsequent school year.  The duty to provide first priority is not discretionary.  The right accorded to temporary teachers in section 44918 is a substantive right which guarantees them a hiring preference in the event their school district chooses to fill a vacant position in the grade level or department in which they previously taught. 

Facts and analysis based upon Henderson v. Newport-Mesa Unified School District, decided on March 13, 2013 by the California Court of Appeal, Fourth District

Employees Seeking Leave For Pregnancy-Related Disability Are Not Limited to Pregnancy Leave Laws

February 25, 2013

By:  Christopher P. Wesierski and Roxana Amini

Ana Sanchez was employed as a cleaning agent for Swissport, Inc. from August 2007 to July 14, 2009. Around February 27, 2009, she was diagnosed with a high-risk pregnancy, requiring bedrest until the baby was due, which was October 19, 2009. After she was diagnosed, she requested and received a temporary leave of absence from Swissport. Swissport gave Sanchez the maximum leave they could under the Pregnancy Disability Leave Law (PDDL), which is four months. They also gave her accrued vacation time. On July 14, 2009, almost 5 months after taking pregnancy leave, Sanchez was terminated. Sanchez then sued Swissport, alleging she was fired because of her pregnancy, her pregnancy-related disability and/or her requests for accommodations.

In response to the complaint, Swissport argued that Sanchez was permitted all of the pregnancy leave to which she was entitled, and her employment was terminated only when that leave expired and she was not able to return to work. Based on this, they had satisfied all their obligations under the pregnancy disability statutes. Swissport argued that the PDDL was the exclusive remedy for an employee seeking reasonable accommodation of her pregnancy-related disability. Once the maximum four-month leave period specified in the PDLL expired, an employee was entitled to no other protection under the Fair Employment and Housing Act (FEHA).

Sanchez filed an opposition, arguing that she was entitled to reasonable accommodations for her pregnancy-related disability under the FEHA, independent of the leave provisions articulated in the PDLL and the California Family Rights Act. She argued she was a disabled employee and was therefore entitled to a reasonable accommodation, which may include leave of no statutorily fixed duration. Courts have held that holding a job open for a disabled employee who needs time to recuperate or heal is in itself a form of reasonable accommodation and may be all that is required where it appears likely that the employee will be able to return to an existing position at some time in the foreseeable future. 

The trial court agreed with Swissport and sustained its demurrer, finding that Swissport had provided Sanchez all the pregnancy leave possible under the law. Sanchez then appealed.

The appellate court reversed the trial court’s ruling. The court noted that the remedies provided in the PDLL are “in addition to” those governing pregnancy, childbirth, and pregnancy-related medical conditions set forth in the FEHA.” This includes reasonable accommodation. Thus, the court argued, Swissport did not provide all remedies under the law. Swissport could have given Sanchez four months off under the pregnancy statutes, and reasonable accommodation (in the form of keeping her job open for her) under the disability statutes.

Facts from Sanchez v. Swissport, Inc. 2013 WL 635266 (February 21, 2013).

Reporting Coworker’s Illegal Conduct is Protected Activity Under California Whistleblower Statute

February 5, 2013

By:   Christopher P. Wesierski and Ashley A. Reagan

In this case, Plaintiff Brian McVeigh sued his former employer Defendant Recology San Francisco for allegedly firing him in retaliation for reporting possible fraud in connection with California Redemption Value payments made by and to Defendant for recycled materials. Defendant operated waste collection facilities and recycling buy back centers.  While working for Defendant in one its buy back centers, Plaintiff complained to Defendant that its employees were engaged in tag inflation fraud- when the attendant records more weight on the tag than the weight of the recyclables actually bought back by Defendant, resulting in an overpayment to the customer and a kickback to the attendant.  For example, the attendant would issue a tag for 100 pounds when the customer only brought in 50 pounds.  The customer in turn, would receive a $200 CRV refund, rather than the $100 refund to which he was entitled.  Defendant would then submit the correct 50 pounds to the government and receive the correct CRV reimbursement from the State, but at a $100 loss to Defendant. Plaintiff additionally complained to local law enforcement about this tag fraud.  After an investigation by Defendant’s human resources department, Plaintiff was terminated for making these allegations in bad faith. 

Plaintiff filed suit pursuant to the whistleblower causes of action set forth in Government Code§12653, the California False Claims Act (CFCA) (prohibiting discrimination for acts taken to expose false claims presented to the government) and Labor Code §1102.5 (prohibiting discrimination for reporting unlawful conduct to the government).  The trial court granted summary judgment in favor of Defendant.  Plaintiff timely appealed.  The court of appeal reversed in part and affirmed in part.

The court reasoned that to be protected activity under the Government Code, Plaintiff need only show a genuine and reasonable concern that the government was possibly being defrauded.  Here, the tag inflation fraud as alleged did not result in any economic loss to the government as Defendant submitted the correct customer weight tags.  Plaintiff’s claim was not viable and summary adjudication as to this cause of action was proper.

The court concluded that the Labor Code protects an employee for reporting claims of illegal conduct by employers as well as fellow employees.  Further, an employee’s report of illegal activity constitutes protected activity, even if the employee is simply doing his job, as long as there is a reasonable basis for suspecting the activity.  Accordingly, Plaintiff’s reports to law enforcement regarding tag inflation fraud by his coworkers were protected activity and summary judgment as to this cause of action was reversed. 

Facts and analysis based upon Brian McVeigh v. Recology San Francisco, et al. decided January 31, 2013 by the California Court of Appeal, First District.

Employee’s Participation in Internal Investigation Not Protected Activity Under FEHA

January 29, 2013

By:   Christopher P. Wesierski and Ashley A. Reagan

This case arises from a wrongful termination action filed by Plaintiff John McGrory against his employer Defendant Applied Signal Technology, Inc.  In this case, Dana Thomas, a female who reported to Plaintiff, filed a complaint with Defendant alleging that Plaintiff was discriminating against her on the bases of gender and sexual orientation.  This accusation led to an investigation of Plaintiff by an outside employment attorney, Sejal Mistry.  Mistry found that the charges of discrimination were unfounded, but that Plaintiff had been uncooperative and untruthful during the investigation.  It was also determined that Plaintiff had work performance problems.  Plaintiff was fired for being uncooperative during Defendant’s and for making inappropriate racial and sexual jokes.  

Plaintiff brought suit against Defendant alleging that his termination violated public policy because an employee cannot be terminated for: (1) being male and (2) participating in an employer’s investigation.  The trial court granted Defendant’s motion for summary judgment, finding that there was no evidence that Plaintiff was terminated for an impermissible reason and that Defendant had established a legitimate, non-discriminatory reason for terminating Plaintiff.  The judgment was affirmed on appeal.  There were various other claims that were not at issue on appeal and will not be discussed here.  

The ultimate issue in a wrongful termination case is whether the employer acted with a motive to discriminate illegally.  Employees may establish a prima facie case of unlawful retaliation by showing that: (1) They engaged in activities protected by the FEHA; (2) Their employers subsequently took adverse employment actions against them; and (3) There was a causal connection between the protected activity and the adverse employment action.  

The court found that an employer’s internal investigation is not “a proceeding” for purposes of FEHA protection.  The court reasoned that activities protected by 42 USC §2000e-3 are limited to participation in official administrative proceedings by the EEOC and do not extend to private internal investigations by employers.  By analogy, Government Code §12940 (the applicable section of the FEHA) does not shield an employee against termination or lesser discipline for either lying or withholding information during an employer’s internal investigation of a discrimination claim.  Whether to fire an employee for lying during an important internal investigation is a business decision that is not for the courts to second guess.  Public policy does not protect deceptive activity during an internal investigation.  

As to Plaintiff’s anti-male discrimination claim, the court determined that there was no evidence of express antipathy to men or disparate discipline.  It was proper to grant summary judgment as to Plaintiff’s claims.    

Facts and analysis based upon John McGregory v. Applied Signal Technology decided January 24, 2013 by the California Court of Appeal, Sixth District.

What to Look for in a Harassment Lawyer

Any case is stressful for all parties involved. Finding the Los Angeles Discrimination Lawyer for you is essential to the success of your discrimination claim. Your attorney is there to provide counsel and make the process easier and more comfortable for you while ensuring the maximum benefits. Here are some qualities to look for in searching for a Los Angeles Discrimination Lawyer:


You want a Los Angeles Discrimination Lawyer who will be dedicated to your case and who will devote his energies to doing the best he/she possibly can for you.


Time is key in a Los Angeles discrimination case. Having an attorney who is timely and can manage everything smoothly will make the case easier on everyone involved.


Stress and tensions can arise between parties. A Los Angeles Discrimination Lawyer needs to be able to handle difficult situations with tact and composure.


Going through a claim is tough and painful for the injured individual. You need a lawyer who is compassionate and understanding of your situation and needs.


Communication is integral to the progress of your discrimination case. It is important to have an attorney who can meet deadlines and is available to speak to you whenever you have questions.


You hire an expert in the field of Los Angeles discrimination. Having plenty of experience with personal injury cases will further ensure that your attorney will maximize you benefits in the case.

Top 10 Most Dangerous Industries to Work in

There are many factors that make a certain type of job dangerous and potentially fatal. In Los Angeles employment law, we see results of a dangerous work environment fairly often. Los Angeles employment lawyers face a variety of employees from different fields every day.

Factors such as the type of work and location determines whether a certain type of job is dangerous. In a report from the US Bureau of Labor Statistics, the following industries have been found to be the most dangerous to work in last year (2011).

1. Fishing Industry

Workplace hazard abounds in the fishing industry especially for commercial fishers. These dangers include motor-operated fishing lines as well as large nets. Fishing as a job itself is characterized by unusually long and strenuous work hours. The most common cause of injury and death in this industry is vessel disasters and falls overboard. The fatal injury rate (per 100,000 workers) for this sector is 121.2. The number of fatal work injuries in this sector is 40.

2. Logging

Although not common for Los Angeles employment lawyers, logging is considered as one of the world’s most dangerous jobs. Loggers usually have to contend with long hours of work in isolated areas. They also may work high above ground. Workers in this industry may also suffer from poor weather conditions. The fatal injury rate for this job is 102.4. The number of fatal work injuries in this sector is 64.

3. Aviation Industry

The fatal injury rate for workers in this industry is 57. Aircraft pilots and flight engineers are the ones that usually confront danger, especially in aircrafts used in responding to emergencies and natural disasters. The number of fatal work injuries in this sector is 72.

4. Refuse and Recyclable-Material Industry

In this type of industry, the fatal injury rate is 41.2. This is a potentially fatal job, since workers are usually exposed to dangerous substances that can be disastrous to one’s health. Workers are also have to contend with other dangers such as moving vehicles as well as traffic. The number of fatal work injuries in this sector is 34.

5. Roofing Works

By nature, roofers have to work high above ground, and that constitutes a danger by itself. Apart from this, a roofers work is strenuous and requires climbing and bending. For this industry, the fatal injury rate is 31.8. The number of fatal work injuries in this sector is 56.

The industries as listed above are those that are found by the BLS as the top 5 most dangerous in the US. Also included in the list from 6 to 10 are the following: structural iron and steel industry; farming, ranch, and other agricultural industry; driving, truck driving, and sales industry; electrical power-line and repair industry; and taxi drivers and chauffeurs’ industry.

Court Compels Arbitration of Discrimination Claims Pursuant to Employment Contract

December 26, 2012 

By:  Christopher P. Wesierski and Ashley A. Reagan

Plaintiff Maribel Baltazar sued her former employer, Defendant Forever 21, and three employees (collectively referred to as “Defendants”) for constructive discharge, discrimination and harassment based on race and sex.  Plaintiff was a married woman of Mexican ancestry.  Plaintiff alleged that one of her managers made racist statements to or about her. In addition, Plaintiff contended that Forever 21 paid Hispanic employees less than non-Hispanic employees in the same position.  One of Plaintiff’s co-workers made racist remarks, threatened her and assaulted her by throwing an envelope that touched her.  Further, Plaintiff’s supervisor and coworker made sexual comments and gestures towards her. Plaintiff reported this conduct to management and received no response. An investigation was later conducted and human resources determined that there was not an issue.  Defendant subsequently quit and filed the instant lawsuit. 

Defendants filed a motion to compel arbitration pursuant to the arbitration agreement (“the agreement”) in the employment contract.  Plaintiff argued the agreement was unconscionable because the agreement was provided to her in an employment application packet.  Plaintiff was told she would not be hired if she did not sign the agreement.  The trial court denied the motion, finding the arbitration agreement to be unconscionable because it (1) required the arbitration of only claims made by the employee; (2) it gave Forever 21 the right to take all necessary steps to protect its trade secrets; and (3) it mandated arbitration even if the agreement was unenforceable. 

The Court of Appeal found that the agreement was not substantively unconscionable and reversed the order denying the motion to compel.  Although the agreement was procedurally unconscionable because Plaintiff was required to sign it as a condition of employment, it was substantively acceptable as it was a bilateral contract.  The Agreement was not governed by the Federal Arbitration Act (FAA) because Plaintiff presented no evidence that the employment transaction involved interstate commerce.  As a result, the Agreement was governed by the California Arbitration Act (CAA) and was enforceable. 

Facts and analysis based upon Maribel Baltazar v. Forever 21, Inc., et al. decided December 20, 2012 by the California Court of Appeal, Second District.

Court Expands Employer’s 10 Day Response Period to Leave Requests under FMLA

December 14, 2012

By:   Christopher P. Wesierski and Ashley A. Reagan

The California Court of Appeal recently decided the case of Lars Oloffson v. Mission Linen Supply which involved a lawsuit filed by Plaintiff Lars Oloffson for wrongful termination against his employer Defendant Mission Linen Supply.  Plaintiff was employed by Defendant as a regular route driver.  In April of 2004, Plaintiff learned that his mother, who was living in Sweden, was experiencing back pain.  On June 12, 2004, Plaintiff learned that his mother had scheduled back surgery for July 5, 2004 to relieve her pain.  Plaintiff requested 7 weeks off from work, starting on July 12, 2004, to take care of his mother.  July and August are the busiest months for Defendant. 

At the time Plaintiff requested leave, he was told that he needed to submit a doctor’s certification before his leave was approved.  The certification provided by Plaintiff was not on the letterhead of a medical establishment.  As a result, Plaintiff was told to complete the government form related to family medical leave.  Plaintiff began training a relief driver.  On July 9, 2012, Plaintiff provided the completed government form to Defendant.  Plaintiff’s leave request was denied because he had not met the 1,250 hour requirement.  Plaintiff went to Sweden to take care of his mother anyway. Plaintiff was terminated from his position. 

In California, California’s Moore-Brown-Roberti Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA) compel an employer of Defendant’s size (50+ employees) to grant a leave of absence to an employee and preserve the employee’s right to continued employment, if the employee worked 1,250 hours in the year preceding the leave and the leave is for a recognized reason, such as to care for a family member who has a serious health condition.  When leave is foreseeable, the employee must provide reasonable advance notice of the leave.  This notice must be made, at least, verbally to the employer.  In addition, if leave is due to a planned medical treatment, the treatment must be scheduled to avoid disruption to the employer’s operations.  An employer must respond to a leave request within 10 days of receipt of the request.   

In his lawsuit, Plaintiff asserted that Defendant was estopped to assert Plaintiff did not qualify for family leave based on the 1,250 hour requirement because Defendant had not informed him that leave was denied until after his mother’s surgery.  The Oloffson court concluded that Defendant did not misrepresent that Plaintiff’s leave had been approved and that Defendant’s decision to approve or deny the leave was appropriately made after the expiration of the 10-day window to “respond to” the leave request.  Defendant’s request that Plaintiff provide sufficient doctor certification and complete a government form served as the “response” required by California law.  The response made by an employer within the 10 day period need not be an acceptance or a denial of leave. 

Facts and analysis based upon Lars Oloffson v. Mission Linen Supply decided December 13, 2012 by the California Court of Appeal, First District.

Class Action Waivers in Arbitration Agreements Unenforceable in California

December 10, 2012

By:   Christopher P. Wesierski and Ashley A. Reagan

In Gentry v. Superior Court, the California Supreme Court held that a class action waiver may be unenforceable if it prevents employees from vindicating unwaivable statutory rights.  Gentry v. Superior Court, 42 Cal.4th 443, 455-463 (2007).  In Franco v. Athens Disposal Co.Inc.(Franco I), the court concluded that Gentry invalidated a class action waiver where an employee alleged meal and rest break violations.  Franco v. Athens Disposal Co.Inc., 171 Cal.App.4th 1277, 1290-94 (2009).  The employer filed a second motion to compel arbitration that was denied by the trial court.  Edixon Franco amended his complaint to name Arakelian Enterprises as his employer as it was determined that Athens Disposal was not Plaintiff’s actual employer.   The issue on appeal was whether Gentry was overruled by the U.S. Supreme Court cases of Stolt-Nielsen S.A. v. Animal Feeds International Corp. (2010) andAT&T Mobility LLC v. Conception (2011), which held that such waivers may still be enforced. In particular, Stolt-Nielsen held that class arbitration is not permitted unless the parties have expressly or impliedly agreed to it.  Concepcion held that if a state law exists that automatically holds all class action waivers as unconscionable, then the state law is preempted by the Federal Arbitration Act. 

In the instant case,  Edixon Franco v. Arakelian Enterprises, Inc. (Franco II), the court concluded that Gentry was still good law in California because it does not establish a categorical rule against class action waivers but utilizes a case by case analysis.  Gentry is distinguishable from Conception because it does not does not invalidate a class action waiver unless (1) a class action is likely to be a significantly more effective practical means of vindicating the rights of the affected employees than individual litigation or arbitration; and (2) the disallowance of the class action will likely lead to a less comprehensive enforcement of wage and hour laws for the employees alleged to be affected by the employer’s violations. Stolt-Nielsen and Concepcion did not overrule Gentry

As a result, the class action waiver in Defendant employer’s arbitration agreement was unenforceable as applied to the employees’ missed rest and meal break claims.  The arbitration agreement in Franco II stated that Plaintiff would “forgo any right… to bring claims on a representative or class basis.”  Defendant argued that because Defendant was engaged in interstate commerce within the meaning of the Federal Arbitration Act that arbitration was required under the arbitration agreement.  The primary factor in the court’s decision to uphold the agreement was that Franco lacked the means to pursue his meal and rest period claims on an individual basis in arbitration because of the low damages present in this case.  The rights to receive rest breaks and meal periods were unwaivable statutory rights. 

Facts and analysis based upon Edixon Franco v. Arakelian Enterprises, Inc. decided December 4, 2012 by the California Court of Appeal, Second District.