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California Employment Alert

July 28, 2010

Hiring Less Qualified Candidate Did Not Constitute Pretext for Age Discrimination

An employer sought to hire an experienced attorney with both a labor law and employment litigation background. Two candidates applied for the position. The first applicant was 40 years old, had fewer years’ experience than the second applicant, and practiced in all aspects of labor and employment law. The second applicant was 56 years old, had more years of experience than the first applicant, and worked for the National Labor Relations Board. The employer ultimately selected first applicant, and the second applicant sued alleging age discrimination. The employer testified that he was "put off" by the fact that the second applicant had sent him an e-mail inquiry about the position while working in a taxpayer-supported government office during his working hours, and another e-mail concerning his qualifications which came across as arrogant. The employer ultimately selected the first applicant because he was impressed with her academic credentials, law firm background, human resources experience, and New York bar licensure, as well as the fact that she simply "clicked" with him personality-wise. The court granted summary judgment in favor of the employer on the second applicant's age discrimination claim. The California Court of Appeals affirmed, finding that the second applicant did not have clearly superior paper credentials, and that his credentials could not reasonably be viewed as "vastly superior" to those of the first applicant. While employers can ultimately select the best applicant for open positions, they must nevertheless evaluate competing qualifications and ensure that the decision is made without regard to the applicant's age, race, gender, national origin, disability, sexual orientation or religion. 

Reeves v. MV Transportation, No. A125927 (Cal. Ct. App. July 9, 2010)

Contact for more information: Amy K. Jensen 

Independent Contractor Cannot Hold General Contractor Vicariously Liable for Injuries from Inherent Risks

An independent contractor hired by a subcontractor was injured at the construction job site and sued the general contractor to recover for his injuries. The general contractor prevailed on its motion for summary judgment under the theory that the person who hires an independent contractor is not liable for injuries which are caused by that independent contractor’s own negligence when performing the work. On appeal, the Supreme Court of California held that public policy dictates that an independent contractor such as the injured person in this case could sue the general contractor for his injuries. The Court then concluded that an independent contractor has the ability to make decisions concerning the nature of work that he or she will be performing. If the independent contractor assumes the responsibility and risk of carrying out the work for which he or she was contracted, the independent contractor assumes responsibility for workplace safety, and cannot sue the general contractor on a theory of vicarious liability for injuries which resulted from his or her own negligence. General contractors should be aware that they can be held liable for injuries to independent contractors, but only where not caused by the independent contractor’s own negligence.

Tverberg v. Fillner Construction, Inc., No. S169753 (Cal. Sup. Ct. June 28, 2010)

Contact for more information: Clint D. Robison

PERB Has Authority Over Most Public Employee Strike Threats

The city of San Jose, California, filed a complaint requesting an injunction to prevent 110 of the city's union-represented employees from engaging in a strike on the grounds that the strike would endanger public health and safety. The union and the Public Employment Relations Board (PERB) opposed the request. The trial court denied the injunction. In a unanimous decision affirming the denial, the Supreme Court of California ruled that when a public employer is of the view that a threatened strike by certain public employees will endanger the public welfare, it must generally first seek relief from the PERB before asking a superior court for injunctive relief. The Supreme Court held that most public employee labor disputes fall within the initial jurisdiction of the PERB, even where an employer alleges that a union is threatening to engage in a strike prohibited by state law. However, there may be a recognized exception to the doctrine of exhaustion of remedies that can apply to a public employee strike, especially where an argument can be made that the PERB cannot move quickly enough to prevent an imminent strike from causing irreparable harm to the public welfare. Nevertheless, deference should still be afforded to the PERB, with injunctive relief being issued by a superior court only when it is clearly shown that the PERB's remedy would be inadequate. Therefore, public employers should seek relief from the PERB before turning to the court system.

City of San Jose v. Operating Eng'rs Local Union No. 3, No. S162647 (Cal. Sup. Ct. July 1, 2010)

Contact for more information: Amy K. Jensen

Certification Requirements Under California Labor Code Are Not Within the Authority of the Director of the California Department of Industrial Relations 

Various unions alleged that employers were using unauthorized workers in the rebuilding of the San Francisco-Oakland Bay Bridge to perform tasks that must be performed by certified electricians. The unions sued the employers for unfair and unlawful competition and interference with prospective economic advantage. The trial court ruled in favor of the employers, concluding that the unions' allegations implicated the authority of the Director of the California Department of Industrial Relations to determine the scope of work for electricians under the wage law, and that the unions were required to exhaust the administrative remedies under the California Labor Code before filing suit. The California Court of Appeals reversed. It indicated that the unions' claims brought under the provisions of the Labor Code arose independently of the prevailing wage law and did not challenge the Director’s authority to determine the scope of work or the prevailing wage. Employers who employ union members should be aware of the applicable Labor Code sections and wage laws.

Alameda County Joint Apprenticeship and Training Committee et al. v. Roadway Electrical Works, Inc., et al.,No. A125494 (Cal. Ct. App. June 29, 2010)

Contact for more information: Sean N. Pon 

Court Strikes Down Law Permitting Picketing in Private Parking Lots and Sidewalks

Union members picketed in front of a grocery store, despite its demands that the union not use the store’s private property for expressive activities. The picketers refused to cease their picketing, and the store consequently sought an injunction against them. The trial court denied the requested relief on the ground that the pertinent California authorities do not provide for injunctive relief in a peaceful labor dispute. On appeal, the California Court of Appeals considered whether the state, based upon the content of the speech, can force the owner of private property to give an uninvited group access to the property in order to engage in free speech. The court concluded that because such legislation violates the First and Fourteenth Amendments of the U.S. Constitution, it is invalid. The store owner was therefore not required to permit the union members access to the private property because it would force the store to provide a forum for speech based upon content. Employers are not required to give an uninvited group access to its property to engage in free speech, whether that group is a union or some other group.

Ralphs Grocery Co. v. United Food and Commercial Workers Union Local 8, No. C060413 (Cal. Ct. App July 19, 2010)

Contact for more information: Amy K. Jensen

This alert has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.