Employment Law Observer

In Cochran v. Schwan’s Home Service, Inc., the California Court of Appeal for the Second Appellate District dealt with the question of whether employers are required to reimburse employees for work-related calls made on their personal cell phones.

The Supreme Court's decision last week in NLRB v. Canning left many employers scratching their heads—and with good reason.

The United States Supreme Court has struck down President Obama's controversial 2012 nominations to the NLRB, holding that the President violated the Constitution by using his recess appointments power when the Senate was still in session.

In Rosenfeld v. Abraham Joshua Heschel Day School, Inc., the Second Appellate District held that a plaintiff whose pleadings alleged intentional employment discrimination could not assert a disparate impact theory for the first time at trial.

In Hall v. Rite Aid Corp., the Fourth Appellate District reversed the trial court’s decertification of a putative class of cashiers who challenged their employer’s policy of requiring them to stand while checking out customers.

In Lewis v. City of Benicia, the First Appellate District affirmed once again that in California, same-sex harassment is actionable.

In Martinez v. Joe’s Crab Shack Holdings, the California Court of Appeal for the Second Appellate District reversed an order denying class certification to a group of managerial restaurant employees allegedly misclassified as exempt.

In Mendez v. Mid-Wilshire Health Care Center, the California Court of Appeal for the Second Appellate District held that the arbitration provision in a collective bargaining agreement governing a plaintiff’s employment did not apply to statutory discrimination claims.

In Benton v. Telecom Network Specialists, Inc., the California Court of Appeal for the Second Appellate District affirmed that employee wage and hour and meal break cases may be suitable for class certification even where employees experience diverse damages.

The Sixth Circuit has ordered the Equal Employment Opportunity Commission (“EEOC”) to pay more than $750,000 in attorney’s fees and costs for pursuing a frivolous employment discrimination case.

In this space, we have reported recently on the series of rebuffs that the EEOC has received from various courts in recent months. But in EEOC v. Boh Brothers Construction Company, the Fifth Circuit Court of Appeals handed the EEOC a victory that serves to expand the meaning of what constitutes sexual harassment under Title VII of the Civil Rights Act of 1964. In the September 27, 2013, en banc ruling, a 10-6 majority held that the crude sexual banter and ribbing of a heterosexual male worker by a heterosexual male supervisor could constitute sexual harassment under Title VII.

In Cho v. Chang, the California Court of Appeal, Second Appellate District held that an employee’s statements to coworkers about alleged discrimination were not protected activities triggering special protection under California’s anti-SLAPP statute.

On September 3, 2013, in Wang v. Chinese Daily News, Inc., the Ninth Circuit clarified the restrictions on class certification imposed by Wal-Mart Stores, Inc. v. Dukes. The net effect of this ruling is to make it harder for plaintiffs to certify classes.

In Rodriguez v. AT&T Mobility Services LLC the Ninth Circuit cited recent United States Supreme Court precedent to make it more difficult for class action plaintiffs to pursue their claims in state court.

In MacDonald v. Superior Court, the court held that an employee must exhaust statutory administrative remedies before filing suit against an employer.

On August 26, 2013, California Governor Jerry Brown signed Senate Bill 462 into law, making it harder for employers to obtain attorney’s fees in certain employment wage claim cases.

In Richards v. Ernst & Young, The Ninth Circuit reversed the District Court’s denial of defendant’s motion to compel arbitration of state wage and hour claims asserted by a former employee.

In Wade v. Ports America Management Corp., the California Court of Appeal, Second Appellate District held that an arbitration award, pursuant to a collective bargaining agreement, had res judicata effect on a plaintiff’s subsequent common law racial discrimination claim.

Where a person seeks compensation for injury resulting from wrongful conduct, there must be a demonstrated connection between the wrong alleged and the injury — i.e., causation. The default rule, developed in connection with tort law, is that the plaintiff must show “the harm would not have occurred” in the absence of the wrongful conduct. This is also known as the “but for” causation standard.

The fate of hundreds of mostly pro-union federal agency rulings now rests with the U.S. Supreme Court.