The best and worst employment case law developments of 2019
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Andrew H. Friedman
HELMER FRIEDMAN LLP
May 2020
The best and worst employment case law developments of 2019
A BRIEF OVERVIEW OF THE MOST IMPORTANT CASE LAW DEVELOPMENTS THAT SHAPED
THE YEAR IN EMPLOYMENT LAW (WITH A BIT OF COLOR COMMENTARY)
The United States of America has strikingly personal terms, when-ever they consumers in California have only the
become, under more than three years of issue rulings/verdicts with which he disagrees California State courts to protect them
corrupt tyrannical-like rule by President and/or to cow them into making opinions/ and, unfortunately, even some of these
Donald John Trump, “skew-jee, awry, verdicts that he considers favorable. supposedly liberal courts sometimes place
distorted and altogether perverse.” From within, he (along with corporate interests ahead of the rights of
Although President Woodrow Senator Mitch McConnell) are in a individual employees and consumers.
Wilson’s Secretary of the Interior, mad frenzy to fill the federal courts What follows is a summary of cases
Franklin Knight Lane, used those words with an unprecedented number of decided before the upcoming tsunami
to describe a different time, they are ultraconservative judges; such is the of employment law decisions by Trump
equally applicable today as President rush that Trump has nominated more judges which will undoubtedly curtail
Trump, aided and abetted by the individuals deemed unanimously individual/employee rights in favor of
GOP-controlled Senate, has attacked unqualified by the American Bar corporate interests.
whistleblowers, the media, his political Association than those similarly rated
rivals (and, sometimes, his political allies), by the last six presidents (Obama, G.W.
A clarion call for civility and the
consumers, employees, and everyone else Bush, Clinton, G.H.W. Bush, Reagan, and elimination of bias in the practice
whom he deems to have failed to provide Carter) combined! And, Trump is filling of law
unconditional support for him and for his the federal courts at an unprecedented President Trump’s worst behaviors
policies. rate. These Trump judges (comprising (incivility, sexism, bias, aggression, anger,
The President has also attacked our the least diverse class of judicial nominees bullying, dishonesty, greed, narcissism,
hitherto independent judicial system both in modern history), are almost uniformly and negativity) have infected the bar in
from without and from within. From without, hostile not only to the rights of employees California just like a bad case of the novel
he assaults the courts and juries — the and consumers but also to anything that coronavirus (COVID-19). And, in a series
bulwarks of our Constitution and laws — by jeopardizes the unfettered power of of three cases, the California Courts of
undermining their legitimacy, usually in President Trump. For now, employees and See Friedman, Next PageAndrew H. Friedman, continued
May 2020
Appeal have attempted to prevent the of California law – a ghost ship reported appearing before us will not be tolerated,
tide of incivility/bias from spreading any by a few hardy souls but doubted by period.”
further by issuing a clarion call for civility most people familiar with the area in Finally, in Briganti v. Chow (2019) 42
and the elimination of bias in the practice which it’s been reported. The section’s Cal.App.5th 504, the Court of Appeal
of law. adjuration to civility and cooperation added a “A Note on Civility, Sexism, and
Lasalle v. Vogel (2019) 36 Cal.App.5th “is a custom, More honor’d in the Persuasive Brief Writing” at the end of
127, a non-employment case, is one breach than the observance.” In this its opinion to address a reply brief filed
of the most significant cases of 2019 case, we deal here with more evidence in the case that contained “a highly
because it addresses a dire emergency that our profession has come unmoored inappropriate assessment of certain
in the legal profession – loss of civility. from its honorable commitment to the personal characteristics of the trial judge,
Lasalle is ostensibly a legal-malpractice ideal expressed in section 583.130, including her appearance.”
action in which the plaintiff, Angele and – in keeping with what has become The offending paragraph stated:
Lasalle, was suing her former attorney, an unfortunate tradition in California “Briganti ... claims that ... Chow defamed
Joanna T. Vogel. Thirty-six days after appellate law – we urge a return to the her by claiming she was ‘indicted’ for
Lasalle served Vogel with the summons professionalism it represents. criminal conduct, which is the remaining
and complaint, Lasalle’s lawyer sent ((2019) 36 Cal.App.5th 127, 130 charge [in the case] after the [trial judge]
Vogel a letter and an email, informing (footnotes and citations omitted).) ... an attractive, hard-working, brilliant,
Vogel that her default would be entered In Martinez v. O’Hara (2019) 32 young, politically well-connected judge
if no response was filed the very next Cal.App.5th 853, the Court of Appeal on a fast track for the California Supreme
day, a Friday. No response was filed. On held that a gender-biased statement Court or Federal Bench, ruled for Chow
Monday, Lasalle filed a request for entry made in court papers violates ethical rules granting his anti-SLAPP Motion to Strike
of default which was granted. A week and may be reported to the state bar by Respondent’s Second Cause of Action but
later, Vogel filed a motion to set aside the court. Fernando Martinez appealed against Chow denying his anti-SLAPP
the default. The Superior Court denied the trial court’s denial of his motion Motion against the First Cause of Action
Vogel’s set-aside motion and a default for attorneys’ fees and costs following .... With due respect, every so often, an
judgment was entered against Vogel for an $8,080 jury verdict on his sexual attractive, hard-working, brilliant, young,
$1 million. Vogel then appealed. The harassment claim. Instead of using the politically well-connected judge can err!
Court of Appeal determined that, because Judicial Council notice of appeal form, Let’s review the errors!” (Id. at p. 511.)
“[d]ignity, courtesy, and integrity were his counsel submitted his own notice of The Court of Appeal then explained
conspicuously lacking” in the litigation, appeal which stated in pertinent part: that gender bias and disrespect for the
reversal was appropriate. “The ruling’s succubustic adoption of the judicial system was intolerable even if
The most important part of the defense position, and resulting validation framed in a supposedly complimentary
terrific opinion written by Justice William of the defendant’s pseudohermaphroditic fashion:
W. Bedsworth is the Court of Appeal’s misconduct, prompt one to entertain When questioned at oral
lengthy lament about the declining state reverse peristalsis unto its four corners.” argument, Chow’s counsel stated he
of the legal profession, excerpted here in (Id. at p. 847.) intended to compliment the trial judge.
part as follows: Noting that Webster’s Third New Nevertheless, we conclude the brief ’s
Here is what Code of Civil International Dictionary defined the opening paragraph reflects gender bias
Procedure section 583.130 says: “It is term “succubus” as “1: a demon assuming and disrespect for the judicial system.
the policy of the state that a plaintiff female form to have sexual intercourse ....
shall proceed with reasonable diligence with men in their sleep – compare Calling a woman judge – now
in the prosecution of an action but that incubus 2: demon, fiend 3: strumpet, an Associate Justice of this court
all parties shall cooperate in bringing whore,” the Court of Appeal held that the – “attractive,” as Chow does twice
the action to trial or other disposition.” “reference [in the notice of appeal] to the at the outset of his reply brief, is
That is not complicated language. ruling of the female judicial officer, from inappropriate because it is both
No jury instruction defining any of its which plaintiff appealed, as ‘succubustic’ irrelevant and sexist. This is true
terms would be necessary if we were constitutes a demonstration ‘by words or whether intended as a compliment
submitting it to a panel of non-lawyers. conduct, bias, prejudice, or harassment or not. Such comments would not
The policy of the state is that the based upon... gender’ and thus qualifies likely have been made about a male
parties to a lawsuit “shall cooperate.” as reportable misconduct.” The Court of judge . . . Objectifying or demeaning
Period. Full stop. Appeal then commented: “We publish a member of the profession, especially
Yet the principle the section dictates this portion of the opinion to make the when based on gender, race, sexual
has somehow become the Marie Celeste point that gender bias by an attorney See Friedman, Next PageAndrew H. Friedman, continued
May 2020
preference, gender identity, or other protect “ordinary citizens who are sued by I wouldn’t close the courthouse door
such characteristics, is uncivil and well-heeled special interests.” (See George when a worker invokes the conversion
unacceptable. Moreover, the comments W. Pring & Penelope Canan, SLAPPs: tort to recover earned but unpaid
in the brief demean the serious Getting Sued For Speaking Out, (Temple wages. In California, unpaid wages are
business of this court. We review Univ. Press 1996) at pp. 1-2, 196 quoting the employee’s property once they are
judgments and judicial rulings, not Deukmejian Vetoes Limits on SLAPP Suits, earned and payable… Which is why an
physical or other supposed personal San Francisco Daily Journal, Sept. 27, action for unpaid wages is not, as the
characteristics of superior court judges. 1990, at p. 8 (emphasis added).) majority suggests, merely an “action[ ] for
(Ibid.) Unfortunately, but not unexpectedly, a particular amount of money owed in
These three cases should serve as deep-pocketed corporations and other exchange for contractual performance.”
the impetus not only for all attorneys economic powerhouses have attempted The doctrinal basis for invoking
to double-down on their efforts to be to corrupt the anti-SLAPP statute and conversion here is as solid as California’s
professional, civil, and courteous in turn what was supposed to be the “cure” longstanding concern about wage
their dealings with opposing counsel into a “disease,” to be used by those theft. Indeed, nothing in the legislative
and to refrain from bias in all aspects powerhouses against ordinary citizens scheme or public policy more generally
of the practice of law, but also for law (consumers and employees) in an effort justifies limiting the tort in the manner
schools and the bar to re-emphasize the to silence them. (See Nam v. Regents of the the majority proposes. So with respect, I
importance of civility and for Superior Univ. of Cal. (2016) 1 Cal.App.5th 1176, dissent.”
Courts to take swift and vigorous action 1179 [“The cure has become the disease In Goonewardene v. ADP, LLC (2019)
against incivility. – SLAPP motions are now just the latest 6 Cal.5th 817, the California Supreme
form of abusive litigation”], quoting Court held that a payroll company could
A quartet of very disappointing Navellier v. Sletten (2002) 29 Cal.4th 82, not be liable to an employee of one of
decisions and a single wonderful 96 [dissenting opinion of Brown, J.].) its clients for negligence or breach of
opinion Sadly, in Wilson, the California contract holding that: (1) ADP owed
Typically, the California Supreme Supreme Court turned the intent of no common law duty of care to Altour’s
Court issues pro-employee decisions. This the anti-SLAPP statute upside down to employees and thus could not be liable
past year, however, save one pro-employee protect a behemoth media corporation for alleged negligence; and (2) Altour’s
exception, saw the Court repeatedly side from an ordinary citizen merely employees were not parties to nor third-
with big business over employees. attempting to exercise his constitutionally party beneficiaries of the contract
In Wilson v. Cable News Network, Inc. protected petitioning right of suing between Altour and ADP, and thus could
(2019) 7 Cal.5th 871, the California that corporation for discrimination. not be liable for breach of contract.
Supreme Court was presented with The Supreme Court held that CNN In ZB, N.A. v. Superior Court (2019)
the opportunity to decide whether the could use the anti-SLAPP act against a 8 Cal.5th 175, the California Supreme
State’s anti-SLAPP statute could be used discrimination claim because it found Court held that private litigants may not
to screen claims alleging discriminatory that the First Amendment protects a news recover unpaid wages under the Labor
or retaliatory employment actions. organization’s right to choose who reports Code Private Attorneys General Act
California’s anti-SLAPP statute was, the news on its behalf. Discrimination and (“PAGA”). Unfortunately, the Supreme
of course, enacted at the strong and retaliation cases, which involve issues of Court held that “[d]eeming … unpaid
repeated urging of then-California intent and motive, are difficult enough wages … to be a civil penalty … cannot be
State Senator Bill Lockyer (Chair of the to prove even with full and intensive squared with the understanding of that
California Senate Judiciary Committee), discovery. To subject those cases to the term under the PAGA.”
“out of concern over ‘a disturbing heighted scrutiny erected by the anti- Finally, in the one pro-employee
increase’ in civil suits ‘aimed at preventing SLAPP act is to effectively provide media exception to its slate of unfavorable
citizens from exercising their political corporations with a free pass to engage in pro-business decisions, the California
rights or punishing those who have done unlawful discrimination and retaliation. Supreme Court held, in Frlekin v. Apple
so.’” (Wilson v. Cable News Network, Inc. Next, in Voris v. Lampert (2019) 7 Inc. (2020) 8 Cal.5th 1038, that the time
(2016) 6 Cal.App.5th 822, 830 reversed, Cal.5th 1141, the California Supreme during which employers required their
in part, by Wilson v. Cable News Network, Court held that employees cannot sue employees to spend on the employer’s
Inc. (2019) 7 Cal.5th 871 quoting Simpson employers for the tort of conversion. premises waiting for, and undergoing,
Strong-Tie Co., Inc. v. Gore (2010) 49 Justice Mariano-Florentino Cuéllar mandatory exit searches was employer-
Cal.4th 12, 21 (emphasis added).) (joined by Justice Goodwin H. Liu) issued controlled activity, and therefore that
Senator Lockyer commented that a cogent dissent summarized by a single time was compensable as “hours worked”
the anti-SLAPP legislation was needed to paragraph: “Unlike the majority, See Friedman, Next PageAndrew H. Friedman, continued
May 2020
within meaning of California’s wage and former Deputy District Attorney, sued the In Siri v. Sutter Home Winery, Inc.
hour laws. County of Riverside for retaliating against (2019) 31 Cal.App.5th 598, the court held
him in violation of Labor Code section that an accountant could proceed with
Unlike President Trump and his 1102.5 because he repeatedly complained a whistleblower lawsuit even though the
Senate enablers, the California Courts to his supervisors that the County needed documents underlying her claims were
of Appeal still protect whistleblowers to cease the prosecution of a man for privileged. Siri repeatedly complained to
In the age of Trump, the importance whom there was not probable cause to her supervisors that the company was not
of whistleblowers cannot be overstated as continue prosecuting (among other things, complying with California sales and use
both federal and state governments (and DNA evidence exculpated the man; and tax laws. She alleged that the company
employers) need the checks and balances another person admitted, in recorded retaliated against her by scrutinizing
that whistleblowers represent to ensure phone calls, to being the actual killer). her, taking away job duties, giving an
that illegal activities are brought to light. Ross based his recommendation on office promised to her to someone else,
In Hawkins v. City of Los Angeles his belief continued prosecution would ostracizing her, and ultimately firing her.
(2019) 40 Cal.App.5th 384, two violate the defendant’s due process Siri sued, alleging violations of
government employees – Todd Hawkins rights as well as a prosecutor’s ethical Labor Code section 1102.5 and wrongful
and Hyung Kim – blew the whistle obligations under state law. The trial termination in violation of public policy.
on an illegal practice allegedly taking court granted the County’s motion for The company moved for summary
place within the City of Los Angeles’ summary judgment on the ground that judgment claiming that Siri would need
Department of Transportation (“DOT”). Ross failed to allege that he complained to rely on the company’s confidential
Hawkins and Kim were DOT hearing about a violation of the law. The Court of tax returns to prove her claim, and that
examiners. They reviewed parking Appeal reversed, explaining: those were not discoverable because of
violations and made determinations as to If credited by a trier of fact, the the taxpayer privilege. The trial court
whether the individuals contesting their evidence shows Ross engaged in protected granted summary judgment and Siri
violations were liable. activity because he disclosed information appealed. The Court of Appeal reversed.
Both men complained internally to a governmental or law enforcement It held that the company failed to show
that their supervisor was pressuring them agency and to people with authority that Siri could not prove her case without
to change decisions from “not liable” to over him which he reasonably believed using the actual tax returns: “Prosecution
“liable” – in essence cheating individuals disclosed a violation of, or noncompliance of plaintiff ’s claim does not require the
out of the refunds of the fines they had with federal and state law applicable to forced production of defendant’s returns
paid. Both men were then fired. They sued criminal prosecutions and prosecutors. or of the content of its returns. Plaintiff ’s
for whistleblower retaliation under Labor Although Ross did not expressly state right to recover turns only on whether she
Code section 1102.5 and violations of in his disclosures that he believed the was discharged for communicating her
the Bane Act. A jury found in their favor, County was violating or not complying reasonable belief that defendant was not
awarding Hawkins $238,531 and Kim with a specific state or federal law, Labor properly reporting its use tax obligation.”
$188,631 in damages. The trial court then Code section 1102.5, subdivision (b), does (Id. at p. 605.) Thus, “Plaintiff is entitled
assessed a $20,000 PAGA penalty, and not require such an express statement. It to attempt to prove her claim without
subsequently awarded them $1,054,286.88 requires only that an employee disclose disclosing any information that is subject
in attorneys’ fees. The City appealed. information and that the employee to the privilege.” (Id. at p. 606.)
The Court of Appeal affirmed reasonably believe the information In Gupta v. Trustees of the Cal. State
as to the Labor Code section 1102.5 discloses unlawful activity. (Lab. Code, Univ. (2019) 40 Cal.App.5th 510, the
claim. It further affirmed the award of § 1102.5, subd. (b).) Court of Appeal affirmed a $378,421 jury
attorney’s fees, which were warranted Moreover, the particular information verdict in favor of a professor alleging
under PAGA and under Code of Civil disclosed in this case, that evidence that she was denied tenure and fired
Procedure section 1021.5. As to the latter, developed during Ross’s handling of the because she and several other women
the court determined that Hawkins and case undermined the district attorney’s of color in the University’s School of
Kim had conferred a significant benefit office’s basis for continuing to prosecute Social Work complained about alleged
on the public through the litigation, as the case, should have raised the same “abuse of power and authority, excessive
the City had been denying the public constitutional, statutory, and ethical micromanagement, bullying, and the
of independent, impartial hearings concerns to Ross’s superiors as they did creation of a hostile environment.” (Id. at
and instead undermined the process to to Ross because Ross’s superiors were also p. 513.) In order to prove her retaliation
generate revenue. prosecutors subject to the same legal and claim, Professor Gupta compared herself
In Ross v. County of Riverside (2019) ethical constraints as Ross.” (Id. at pp. to another professor who had not
36 Cal.App.5th 580, Christopher Ross, a 592-93.) See Friedman, Next PageAndrew H. Friedman, continued
May 2020
complained but had been granted tenure. gives plaintiffs scant incentive to skirt may bring a common-law claim for
The University appealed, arguing that the instruction. Defendants, after all, discrimination against an employer. In
Professor Gupta should not have been have good reason promptly to raise other words, the plaintiff, an African
allowed to use the comparator evidence an objection that may rid them of American was not allowed to sue a
because she failed to show that she was the lawsuit filed against them. A Title potential employer on a claim for failure
“clearly superior” to the “comparator VII complainant would be foolhardy to hire due to his race in violation of
professor.” The Court of Appeal disagreed, consciously to take the risk that the public policy; rather, he was restricted to
holding that a plaintiff “is not required to employer would forgo a potentially bringing such a claim under FEHA.
show his or her qualifications are clearly dispositive defense.” (Id. at pp. 1851-52.)
superior in order to defeat summary Ortiz v. Dameron Hosp. Ass’n (2019) 37
Victories for employees in wage-and-
judgment.” (Id. at p. 521.) Cal.App.5th 568, stands for two important hour cases
One of the few exceptions to the propositions. First, that “[d]iscrimination Many employers seek to take
2019 triumphs of whistleblowers and on the basis of an employee’s foreign advantage of their employees by, among
those alleging retaliation occurred in Doe accent is a sufficient basis for finding other things, making them work without
v. Department of Corrections & Rehabilitation national origin discrimination.” (Id. at pay, refusing to pay them legally required
(2019) 43 Cal.App.5th 721. In Doe, the p. 580.) Second, that an employee can overtime, or otherwise simply not
Court of Appeal affirmed summary proceed on a constructive discharge claim complying with the wage and hour laws
judgment in favor of the Department by showing that a “supervisory employee, that are designed to protect employees.
of Corrections holding that the plaintiff intentionally created the working The courts issued a number of significant
failed to demonstrate that he had been conditions at issue in th[e] case, and that victories for employees in these cases.
subjected to an actionable adverse a reasonable person faced with those In Rizo v. Yovino (9th Cir. 2020) 950
employment action where all he alleged conditions would have felt compelled to F.3d 1217, an en banc panel of the Ninth
was that he was retaliated against by his resign.” (Id. at p. 579.) Circuit addressed the question of whether
employer criticizing his work during an In Glynn v. Superior Court (2019) an applicant’s prior rate of pay is a “factor
interrogation-like meeting, ordering a 42 Cal.App.5th 47, the Court of Appeal other than sex” as defined in the Fair
wellness check on him when he was out held that an employer that claims that Labor Standards Act, 29 U.S.C. section
sick, suspecting him of bringing a cell it “mistakenly” fired an employee on 206(d)(1)(iv), that allows an employer to
phone into work, and assigning him to disability leave may nonetheless be liable pay her less than male employees who
be the primary crisis person on the same for discrimination. perform the same work. The Ninth Circuit
day as a union meeting. The Court of In Jimenez v. U.S. Continental Mktg., held that because “[t]he express purpose of
Appeal held that the alleged behavior fell Inc. (2019) 41 Cal.App.5th 189, the the [FLSA] was to eradicate the practice of
squarely into the nonactionable category Court of Appeal held that an employer paying women less simply because they are
of relatively minor conduct that cannot may have FEHA liability if it exercised women” “[a]llowing employers to escape
properly be viewed as materially affecting direction/control over a temporary worker liability by relying on employees’ prior pay
the terms, conditions, or privileges of – “where a FEHA claimant presents would defeat the purpose of the Act and
employment. substantial evidence of an employment perpetuate the very discrimination the
relationship that is rebutted only by EPA aims to eliminate” and, accordingly,
A slew of terrific discrimination and direction and control evidence outside the “an employee’s prior pay cannot serve as
wrongful-termination opinions bounds of the contractual context (such an affirmative defense to a prima facie
In Fort Bend County, Texas v. Davis as in a temporary-staffing situation showing of an EPA violation.”
(2019) 139 S.Ct. 1843, the Supreme where hiring, payment, benefits In Ridgeway v. Walmart Inc. (9th Cir.
Court held that the filing of an and time-tracking are handled by a 2020) 946 F.3d 1066, the Ninth Circuit
EEOC charge is not a “jurisdictional” temporary-staffing agency), the claimant affirmed a $54.6 million verdict in favor
requirement to initiating a Title VII has demonstrated an employment of a class of Wal-Mart truckers who
lawsuit. Although this decision technically relationship for FEHA purposes.” (Id. at alleged that they were illegally not paid for
allows one to bypass that pesky EEOC p. 201.) layovers, rest breaks and inspections. The
filing requirement and proceed directly Of course, there were some district court determined and the Ninth
to court, such a decision would be highly exceptions to the pro-employee Circuit affirmed that the time drivers
foolish, as Justice Ginsburg warns in her decisions. In Williams v. Sacramento River spent on layovers is compensable if Wal-
decision, because the defendant could Cats Baseball Club, LLC (2019) 40 Cal. Mart exercised control over the drivers
simply file a motion to discuss on that App.5th 280, for example, the Court during those breaks – “Wal-Mart’s layover
basis: “And recognizing that the charge- of Appeal held that only an employee policy imposed constraints on employee
filing requirement is nonjurisdictional (as distinguished from an applicant) See Friedman, Next PageAndrew H. Friedman, continued
May 2020
movement such that employees could not work “reporting time” pay as required by meaning to Countrywide employees.”
travel freely and avail themselves of the California’s IWC Wage Orders. (But see, Savea v. YRC Inc. (2019) 34
full privileges of a break.” (Id. at p. 1080.) In Furry v. East Bay Pub’g, LLC (2019) Cal.App.5th 173 [employer did not
In order to pass along the costs of 30 Cal.App.5th 1072, the Court of Appeal violate Labor Code section 226(a) by
doing business to its employees, some addressed a common situation – an using its actual, recorded fictitious
employers force their employees to employer that fails to keep track of its business name; employer had valid
perform work, without compensation, employees’ overtime and then argues, fictitious business name statement and
before they clock in or after they clock when sued for that uncompensated renewal recorded in relevant counties].)
out. These employers justify their failure time, that the employee should not
to compensate their employees for be able to recover anything for the
Pro-employee decisions involving
performing this work by citing the federal overtime work performed because the procedural issues
“de minimis doctrine,” which precludes employee’s testimony about the time In Scott v. City of San Diego (2019)
the recovery of otherwise compensable worked is “uncertain, speculative, vague 38 Cal.App.5th 228, the Court of
amounts of time that the employer deems and unclear.” In Furry, the trial court Appeal held that, in a FEHA case, a
to be small, irregular or administratively bought just such an argument and found prevailing-party employer could not
difficult to record. in favor of the employer because “even a recover its costs despite having made a
In Rodriguez v. Nike Retail Servs. rough approximation of said hours would successful CCP section 998 offer. Rather,
(9th Cir. 2019) 928 F.3d 810, Nike be pure guess work and unreasonable the court explained that, because the
required its retail employees to undergo speculation on the court’s part.” (Id. at FEHA contains its own discretionary
“off the clock” exit inspections every p. 1078.) The Court of Appeal reversed costs provision, a prevailing defendant
time they leave the store. One of the judgment as to the overtime claims, in a FEHA case must establish that
Nike’s employees, Isaac Rodriguez, finding that because the employer failed the plaintiff ’s action was frivolous,
filed a class action on behalf of a class to keep proper records, “the imprecise unreasonable, or without foundation.
of similarly situated employees who nature of Furry’s testimony was not a bar In Mancini & Assocs. v. Schwetz (2019)
went through these exit inspections – to relief.” (Ibid.) 39 Cal.App.5th 656, the Court of Appeal
which usually lasted between one and For many years, some employers succinctly described the case as follows:
two minutes or less per employee. made it difficult for employees to sue “An attorney successfully prosecutes
The district court dismissed the case them for wage-and-hour violation by an action resulting in a substantial jury
based upon the federal de minimis failing to provide employees with their verdict in favor of his client. The retainer
doctrine. On appeal, the Ninth Circuit legal names and then, when sued, arguing agreement between the attorney and his
reversed and reinstated the lawsuit due that the employees’ lawsuits should client provides that the attorney receive
to the subsequently issued California be dismissed because the employees a percentage of the recovery and costs
Supreme Court opinion in Troester v. had failed to sue the correct entity. In should his client prevail. Thereafter,
Starbucks Corp. (2018) 5 Cal.5th 829. In response to this situation, California without the attorney’s knowledge or
Troester, the California Supreme Court enacted Labor Code section 226(a), which consent, the client and the defendant
rejected the application of the federal required employers to, among other prepare a document releasing the
de minimis doctrine to wage and hour things, list the “name of the legal entity defendant from the pending judgment,
claims brought under California law. that is the employer” on employee wage including attorney fees and costs. Does
In Ward v. Tilly’s, Inc. (2019) 31 statements. this release preclude the attorney from
Cal.App.5th 1167, the courts struck a Notwithstanding this clear and easy- pursuing his costs and fees from the
blow for employees who are placed “on to-follow directive, some employers fail defendant? Of course not.” (Id. at p. 657.)
call,” i.e., required to both leave their day to comply. So, for example, in Noori v. In Wu v. O’Gara Coach Co. (2019)
open in case they get called into work and Countrywide Payroll & HR Solutions, Inc. 38 Cal.App.5th 1069, the Court of
check with the employer several hours (2019) 43 Cal.App.5th 957, the defendant Appeal reversed the trial court’s decision
before their shift is scheduled to begin employer was sued for using an acronym to disqualify the plaintiff employee’s
to see if they are told to come into work for its unregistered fictitious business attorney. The trial court found that the
(in which case they are paid for the hours name – “CSSG” – on its employee wage plaintiff ’s attorney, who had previously
they work) or are told that they will not statements. The trial court sustained served as the former president and
be needed at work that day (in which Countrywide’s demurrer, but the Court of chief operating officer of the defendant
case they receive no compensation). Appeal reversed, in part, holding “CSSG employer, had significant responsibility
The Court of Appeal held that, in such is not Countrywide’s registered name, in the formulation and implementation
situations, employers are required to pay nor is it a minor truncation. CSSG is a of the company’s anti-discrimination and
the employees who are not called into construct… which may or may not have See Friedman, Next PageAndrew H. Friedman, continued
May 2020
anti-harassment policies and that it was Court of Appeal held that an employee’s by the parties noting the settlement and
more likely than not that in those roles lawyer was improperly disqualified after expressly requesting that the court retain
he consulted with outside counsel for contacting a “me-too” co-employee jurisdiction to enforce the settlement.
the employer. In addition, the trial court witness: “We therefore hold that where a In Monster Energy Co. v. Schechter
ruled that it appeared highly probable plaintiff-employee claiming harassment (2019) 7 Cal.5th 781, the California
that the plaintiff ’s attorney would be an and/or a hostile work environment seeks Supreme Court held that the lawyers who
important percipient witness at trial, not to rely on evidence of similar misconduct approved a settlement agreement as to
only on the issue of the promulgation and provided by another alleged employee- “form and content” may be bound by the
enforcement of the policies at issue in the victim, ex parte communication with that agreement’s confidentiality provisions.
lawsuit, but also as to whether plaintiff second employee does not concern an act
employee’s complaints were made known or omission of such person in connection Andrew H. Friedman is a partner with
to the plaintiff ’s attorney and what with the matter which may be binding Helmer Friedman LLP in Beverly Hills. He
actions, if any, plaintiff ’s attorney took upon or imputed to the organization for received his B.A. from Vanderbilt University
in response to those complaints. purposes of civil or criminal liability.” and his J.D. from Cornell Law School, where
The Court of Appeal reversed, (Id. at p. 209.) he was an Editor of the Cornell Law Review.
finding that the employer failed to In Mesa RHF Partners, L.P. v. City Mr. Friedman clerked for the Honorable
present evidence that the plaintiff ’s of Los Angeles, (2019) 33 Cal.App.5th Judge John T. Nixon (U.S. District Court
attorney possessed confidential attorney- 913, the Court of Appeal explained for the Middle District of Tennessee). Mr.
client privileged information material to that in order to ensure that a trial court Friedman represents individuals and groups of
the dispute, that the plaintiff employee is able to retain jurisdiction under individuals in employment law and consumer-
gave informed written consent to his CCP 664.6, the parties must either: (1) rights cases. Mr. Friedman is the author of
attorney being called as a witness and file a stipulation and proposed order Litigating Employment Discrimination Cases
that the attorney’s firm (not the attorney signed by counsel that attaches a copy (James Publishing 2005-2019). He would
himself) would represent the plaintiff of the settlement agreement signed by like to thank Helmer Friedman LLP attorney
employee at trial. the parties with an express request for Taylor Markey for her invaluable assistance in
In Doe v. Super. Ct. of San Diego retention of jurisdiction, or (2) file a proofing and otherwise editing this article. Y
County (2019) 36 Cal.App.5th 199, the stipulation and proposed order signedYou can also read
