Employment Law

Employment Law: Arbitration Agreements

By on July 20, 2015 - Comments off

Cruise v. Kroger, (Second District, August 27, 2014) 176 Cal.Rptr.3d 612, 124 Fair Empl.Prac.Cas. (BNA) 376, 14 Cal. Daily Op. Serv. 10,219, 2014 Daily Journal D.A.R. 11,925

A woman who was terminated from her employment as assistant manager of human resources after only seven weeks on the job brought an action against the employer, asserting statutory causes of action pursuant to the Fair Employment and Housing Act (FEHA), for retaliation, sexual harassment, sexual and racial discrimination, failure to investigate and prevent harassment and retaliation, as well as common law claims for wrongful termination.  The defendant filed a motion to compel arbitration, pursuant to a clause in the employment application which required arbitration of employment-related disputes, and incorporated by reference the company’s Mediation & Binding Arbitration Policy. The policy provided that the arbitrator “must be a retired state or federal judge,’ … ‘and neither the American Arbitration Association (‘AAA’) nor the Judicial Arbitration & Mediation Services (‘JAMS’) will be permitted to administer any arbitration held under or pursuant to this Arbitration Policy.’”

The plaintiff opposed the motion, contending that she never signed the arbitration agreement, the clause was vague, and that she was never provided a copy of the arbitration policy, which was a four-page undated document in the defendant’s employee handbook, which she had also never been given. The plaintiff further contended that the policy was procedurally and substantively unconscionable. Read the rest »

Posted in: Employment Law


Employment Law: Agreement to Shorten Statute

By on March 4, 2015 - Comments off

Ellis v. U.S. Security Associates, (First District, March 20, 2014) 2014 WL 1229038, 14 Cal. Daily Op. Serv. 3098, 2014 Daily Journal D.A.R. 3098, 2014 Daily Journal D.A.R. 3588    

A security guard who resigned from her job after being sexually harassed by her supervisor, filed a timely complaint with the California Department of Fair Employment and Housing (DFEH). Upon receiving a right-to-sue letter, she filed a complaint asserting claims for sex discrimination and sexual harassment in violation of Government Code § 12940, failure to maintain an environment free from harassment (§ 12940(k)), retaliation in violation of § 12940(h), intentional infliction of emotional distress, and negligent hiring, supervision, and retention. 

The employer moved for judgment on the pleadings, based on the plaintiff’s signed application for employment which provided that she agreed “any claim or lawsuit … must be filed no more than six (6) months after the date of the employment action,” and waived “any statute of limitations to the contrary.”   The trial court granted the motion and dismissed the complaint, apparently concluding that the shortened limitation provision was enforceable.  However, the court of appeal reversed, holding that the six-month limitation provision in the application for employment was unreasonable and against public policy, and therefore unenforceable:

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Employment Law: Constructive Discharge

By on January 7, 2015 - Comments off

Vasquez v. Franklin Management Real Estate Fund, Inc., (Second District, December 3, 2013) 222 Cal.App.4th 819, 166 Cal.Rptr.3d 242, 14 Cal. Daily Op. Serv. 84, 2014 Daily Journal D.A.R. 60

A maintenance technician filed an action against his former employer for wrongful termination, contending that the employer’s failure to reimburse him for employment related expenses had left him no choice but to resign. Asserting, inter alia, a cause of action for constructive wrongful discharge in violation of public policy, the plaintiff alleged that his employer required him to drive at least 30 miles per day but refused to reimburse him for mileage as required by Labor Code section 2802. The plaintiff also alleged that being forced to purchase gas and maintain his vehicle, combined with his already low wage, resulted in intolerable working conditions.       

 The trial court sustained the employer’s demurrer without leave to amend, finding that “failing to pay mileage expenses of $15/day is not conduct that is so intolerable or aggravated that a reasonable person in the employee’s position would have felt no choice but to resign.” However, the court of appeal disagreed, holding that the facts as alleged could permit a trier of fact to find that the plaintiff had been compelled to resign:

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Posted in: Employment Law


Employment Injuries: Power Press Exception

By on December 23, 2014 - Comments off

Gonzalez v. Seal Methods, Inc., (Second District, January 24, 2014) 223 Cal.App.4th 405,166 Cal.Rptr.3d 895, 14 Cal. Daily Op. Serv. 893, 2014 Daily Journal D.A.R. 985

A woman who was severely injured while loading material onto a die in a power press filed suit against her employer under Labor Code § 4558, which provides an exception to the workers’ compensation exclusive remedy rule. The section allows an employee to “bring an action at law for damages against the employer where the employee’s injury or death is proximately caused by the employer’s knowing removal of, or knowing failure to install, a point of operation guard on a power press, and this removal or failure to install is specifically authorized by the employer under conditions known by the employer to create a probability of serious injury or death.”

The employer moved for summary judgment, contending that the point of operation guard specified by the manufacturer of the press—a two-hand activator system—was properly installed and activated, and the manufacturer had not specified or required any other point of operation guard. The plaintiff opposed the motion, contending that the operation manual for the press required the use of safety blocks, which are small wooden or metal blocks placed in the point of operation to physically prevent the machine from striking whenever the operator’s hands are in the point of operation. Read the rest »


Wrongful Termination: Mistaken Overtime Claim

By on February 18, 2010 - Comments off

Barbosa v. IMPCO Technologies, (Fourth District, November 30, 2009) 179 Cal.App.4th 1116, 101 Cal.Rptr.3d 923

A man who was terminated from his job as a carburetor assembler for mistakenly claiming overtime pay to which he was not entitled, filed an action for wrongful termination. The plaintiff contended that although he had had a reasonable good faith belief that he was entitled to unpaid overtime, when he discovered the mistake and offered to pay the money back to the payroll department he was subsequently terminated for cheating the company.

After the plaintiff completed presentation of his case, the trial court granted the former employer’s motion for a non-suit, finding that there is no public policy requiring an employer to continue to employ an at-will employee who has made an unjustified claim for monies. However, the court of appeal reversed, holding that public policy protects an employee from being terminated for making a good faith but mistaken claim to overtime: Read the rest »


Toxic Chemicals: Secondary Exposure

By on December 8, 2009 - Comments off

Oddone v. Superior Court, (Second District, November 24, 2009) 179 Cal. App. 4th 813, 101 Cal.Rptr.3d 867, 09 Cal. Daily Op. 14,124

A woman whose husband died as a result of a brain tumor allegedly caused by exposure to toxic chemicals at his place of employment, filed an action on her own behalf against the employer. The plaintiff alleged that her husband’s clothing absorbed chemical substances he was using in connection with his employment, and that the substances would remain on his skin, causing her to be exposed to the chemicals as a result of her contact with her husband. The plaintiff further alleged that the defendant had breached duties to warn and to safely operate its premises to protect spouses and family members of employees from coming into contact with chemical substances used at its facility, thereby causing the plaintiff to suffer secondary chemical exposure.

The trial court sustained the defendant’s demurrer without leave to amend. The court of appeal denied the plaintiff’s petition for a writ of mandate, concluding that the trial court correctly found that the defendant did not owe a duty of care to the plaintiff to protect her from secondary exposure to toxic chemicals: Read the rest »