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Mandatory arbitration agreements refer to agreements that an employee must sign as a condition of employment. Employers often include these clauses in their employment contracts to hinder an employee’s ability to pursue claims in court in front of a jury.

While California’s arbitration ban (AB 51) prohibits certain California employers from requiring employees to sign arbitration agreements as a condition of employment, certain employers, like those covered by the Federal Arbitration Act (FAA), are exempt from this prohibition. However, recent decisions indicate that the FAA does not entirely preempt AB51. As such, many employers continue to enforce and attempt to uphold arbitration agreements, despite the employer’s failure to meet the terms of the agreement.

Gallo v. Wood Ranch USA, Inc.

Since the dawn of the Progressive Era in the early 20th Century, employers have resisted government-imposed labor protections for their employees. Employers often rely on employees’ lack of knowledge of the law to prevent them from asserting or even inquiring into their rights. In addition to keeping workers ignorant of labor protections, employers have successfully kept workers afraid of asserting their rights by using retaliatory tactics against employees who seem to be “stirring the pot.” Such retaliation is illegal, as both Federal and California employment laws protect workers from retaliation.

What Exactly is Retaliation?

According to the United States Department of Labor, retaliation occurs if an employer, manager, supervisor, or administrator fires an employee or takes any other type of adverse action against an employee for engaging in protected activity by asserting their labor rights. In addition to termination of the employee, other adverse actions amounting to retaliation could include any action which would discourage a reasonable employee from discussing a potential violation or engaging in other related protected activity. Some examples of retaliation may include firing an employee for discussing overtime requirements with peers or assigning an employee to undesirable duties as a result of their claiming protected medical leave.

To succeed on a claim for wrongful termination from employment, a plaintiff must show that his or her termination was substantially motivated by a violation of public policy. Only when a plaintiff proves that he or she was fired for reasons such as discrimination or retaliation can that plaintiff receive a favorable verdict. A court of appeals in California recently demonstrated how strict the standard for wrongful termination cases can be, denying a plaintiff relief after she claimed she had suffered discrimination from her employer based on a disability.

According to the facts in the opinion, the plaintiff was working as a nurse and was terminated in 2017 after almost 20 years of employment. In her complaint, the plaintiff described her work in patient care and listed the dates during which she began taking medical leave for an undisclosed illness. The medical leave started in 2015 and occurred sporadically through early 2017.

In January 2017, the plaintiff received what is called a “Corrective Action Level 4 write-up,” which included allegations and complaints against the plaintiff dating back to 2015. Two weeks later, she was suspended, and three months after the suspension, her employment was terminated. The plaintiff argued in her complaint that her disability and time on medical leave were substantial motivating factors for the termination and that if it had not been for her disability, she would not have been fired. The lower court denied the plaintiff’s request for relief, and she promptly appealed.

Trials for employment discrimination cases can be emotionally charged environments, and respecting the decision-makers in any court setting can make or break a party’s case. In a recent sexual harassment suit coming out of a California court, the defendant unsuccessfully appealed several rulings from the lower court that he claimed prevented him from having a fair trial. The court of appeals disagreed, affirming the defendant’s original verdict.

The facts of the case indicate that the defendant was accused of sexually harassing one of his female employees, repeatedly making obscene comments and touching her in inappropriate ways. After several years of this behavior, the plaintiff brought the defendant to court, and just before the trial began, the defendant fired the attorneys that were working on his case.

Without an attorney, the defendant elected to represent himself at trial, deciding he did not need counsel in order to get his point across. During the trial itself, the defendant did not obey any of the court’s rules and regulations. He shouted at prospective jurors, made faces during the plaintiff’s testimony, yelled at the judge, threatened the defendant’s lawyer, and routinely interrupted witnesses while they were speaking.

Employment-related lawsuits in California require plaintiffs to comply with many procedural requirements to pursue a claim successfully. If an employee is being mistreated in the workplace, several potential claims against the employer could be pursued. Although an employee may have two or more valid claims against their former employer, each claim needs to be pled and argued in accordance with the procedural requirements for each cause of action. The California Court of Appeals recently affirmed a trial court’s dismissal of ten employment-related claims filed by a former employee of the defendant.

According to the facts discussed in the appellate opinion, the plaintiff began working for the defendant, a medical supply company, in December of 2013. According to the plaintiff’s complaint, during 2015 and early 2016, she began to experience harassment and discrimination from her supervisor. The plaintiff claimed that the supervisor, who was a woman, was discriminating against the plaintiff, also a woman, because of her gender. In May of 2016, the plaintiff reached out to the defendant’s human resources department to report that she was suffering health problems as a result of the mistreatment by her supervisor. Before the plaintiff’s complaint was addressed by human resources, she was terminated from her job, ostensibly because of her failure to accurately keep records as required by her job description.

The plaintiff filed a 10-count cause of action against the defendant after her termination, alleging gender discrimination, harassment, retaliation, unlawful termination, and other employment-related claims. The defendant responded that the plaintiff was an at-will employee and was terminated for her failure to abide by the record-keeping requirements of the job. The trial court addressed the plaintiff’s arguments in turn and summarily rejected them all as unsupported by the evidence. The plaintiff appealed the ruling to the state court of appeals, where the lower judgment was upheld. The appellate court ruled that most of the plaintiff’s arguments were waived on appeal because the plaintiff’s appellate brief was not sufficient to allow the court to consider the substantive merit of the claims.

For California employees seeking job security, the prospect of an unexpected termination, especially if done so without cause, understandably produces fear and anxiety. In instances where an employee is terminated soon after a long-distance, interstate, or even international transfer, the consequences of the termination can be extreme. The California Court of Appeals recently heard an appeal in a case filed by a former employee of the defendant, who was terminated without cause less than one year after he was transferred from California to Singapore, a small Southeast Asian nation.

According to the facts discussed in the appellate opinion, the plaintiff was offered an executive position with the defendant, a software company, in May 2015. While the defendant conducted business in California, the position offered to the plaintiff required relocation to Singapore. The plaintiff accepted the offer and relocation package on May 22, 2015. The offer contained provisions detailing the circumstances under which the plaintiff’s employment could be terminated.

Nearly one year after the plaintiff accepted the offer and moved to Singapore to assume the new position, his employment was terminated. The defendant notified the plaintiff of the termination one month before his departure, and otherwise complied with the conditions in the employment contract/relocation agreement. The letter notifying the plaintiff of his termination did not note any cause or reason for the decision. The plaintiff filed multiple claims against the defendant in California court, alleging that the defendant committed fraud in misrepresenting the details surrounding the job and relocation prior to the plaintiff’s acceptance of the offer. Additionally, the plaintiff alleged that he was unlawfully terminated in violation of state law and his employment contract.

The procedures for successfully pursuing an employment law claim in California can be archaic and confusing. If an employee has been treated illegally by their employer but fails to properly follow the procedure to pursue a claim, they most likely will be left without any relief, even if the facts surrounding the employee’s claim were clearly on the employee’s side. The California Court of Appeals recently affirmed a lower court’s dismissal of an employment discrimination claim because the case was not filed until after the statutory deadline for making such a claim.

The plaintiff in the recently decided case is a woman who worked as a special education assistant for the Los Angeles Unified School District (The defendant) for 15 years between 2000 and 2015. According to the facts discussed in the appellate opinion, the plaintiff was injured on the job in 2015, made a workers’ compensation claim, and took medical leave to address her injuries. In 2017, the plaintiff was cleared by her doctor to return to work with modified duties; however, the defendant determined that she was unable to perform her prior job and offered her a lower-paying position with lighter duties, which the plaintiff refused.

The plaintiff claimed with the California Department of Fair Employment and Housing (DFEH), alleging that she was discriminated against for her disability and retaliated against for making a workers’ compensation claim. Specifically, the plaintiff alleged that the defendant failed to make reasonable accommodations for her to return to her original position after she partially recovered from her injuries. On January 23, 2018, the California DFEH issued her a “right to sue” letter, which instructed her that she could file her claims in state court within one year of the date the letter was issued. Three hundred sixty-six days later, one day after the expiration of the right to sue, the plaintiff filed a claim in state court.

Employment discrimination is illegal under state and federal law. Once an employee makes it known that they are experiencing any type of disability, public and private employers are required by law to provide reasonable accommodation for the employee. Employees are entitled to any accommodation that would not produce undue hardship to the employer’s operation. Disabled employees who are refused reasonable accommodation for their disability and forced to retire may be entitled to take legal action against their former employer. These are known as “failure to accommodate” claims. The California Court of Appeals recently rejected a woman’s claim against the City of Sacramento that alleged her retirement was the result of the city’s refusal to reasonably accommodate her disability.

According to the facts discussed in the appellate opinion, the plaintiff in the recently decided case is a woman who was employed by the City of Sacramento for approximately 20 years. Around 2014, the plaintiff became disabled and took several leaves of absence from her job to have treatment on her ankle. The plaintiff was allotted six months of medical leave, after which she would need to return to work in order to keep priority for her position. After having surgery on her ankle, the plaintiff was not cleared to return to work by the doctor within the six-month medical leave period. Because she wanted to maintain her insurance coverage, the plaintiff decided to retire from her job.

After her retirement, the plaintiff sued the city for disability discrimination, claiming that the city did not make reasonable accommodations for her to continue her job working with her disability. The city responded that they offered the plaintiff 6 months of medical leave as an accommodation for her disability. Furthermore, the city responded that the plaintiff could have requested modified work duties instead of seeking retirement. A jury heard the plaintiff’s claim and sided with the defendant, finding that while the plaintiff could have continued her job with reasonable accommodation, the defendant did not refuse to offer such accommodation, and was not liable for disability discrimination as a result.

Many employers, especially large corporations with a public image, may be more concerned about the optics of workplace discrimination and harassment claims than the cost of paying a complainant the requested amount of damages. Prior to 2019, California employers were permitted to require a sexual harassment or discrimination complainant to accept confidentiality and non-disparagement agreements as part of a settlement to resolve the employee’s claims. Many employers would offer generous settlements to aggrieved employees that were conditioned upon the employee agreeing to be silent in public about their claim.

In 2019, the California legislature passed a law (signed by Governor Newsom), commonly known as the “Silence No More Act.” this legislation forbade employers from requiring a confidentiality or non-disparagement clause as part of the settlement of an employee’s claim of harassment or discrimination based upon sex. The passage of this law prevented employers from essentially buying the silence of sexual harassment and discrimination victims, instead of allowing them to share their stories and warn others about potentially harmful and hostile work environments.

A recently published review of California employment law changes in 2021 discusses how the Silence No More Act provisions have been extended to protect other classes of people complaining of workplace discrimination or harassment. The new legislation states that an employer may not require silence from an employee/complainant who alleges any type of workplace discrimination, harassment, or retaliation. The passage of this new law expands the rights of aggrieved California employees and prevents employers from refusing to pay settlement amounts after a former employee is caught discussing their experiences in public or with the media.

Professional and trade unions are generally tasked with protecting the rights of their members and maximizing employee negotiating power with owners and management by presenting a united front. Usually, a union will enter into what is known as a “collective bargaining agreement” with an employer. The CBA will set rules that both employees and employers must abide by concerning issues such as wages, benefits, workers’ compensation, health insurance, and workplace breaks. Furthermore, CBAs often set a procedure for employees to make grievances against their employers. Unions’ negotiation of CBAs generally serve to benefit employees because the union is able to negotiate better terms for the workplace than employees could on their own. Individually, some terms of a CBA may not benefit employees. The California Court of Appeals recently addressed a claim by an employee in which he was attempting to sidestep the grievance procedures outlined in the CBA that he had agreed to.

The plaintiff in the recently decided case was a carpenter who was previously employed by the defendant. The plaintiff’s employment was conditioned upon agreeing to CBAs that were negotiated by two unions that the plaintiff was a member of. The CBAs in question mandated that any grievances employees had related to wage theft would be handled through binding arbitration, instead of in the state courts. The plaintiff made a claim in state court that the defendant had violated several employment laws and was not paying the plaintiff for work that had been done. The defendant responded to the plaintiff’s state court claims by attempting to enforce the arbitration agreement that was part of the CBAs. The state court granted the defendant’s motion and dismissed the case, leading the plaintiff to appeal the decision to the California Court of Appeals.

On appeal, the high court agreed with the lower court’s reasoning, holding that the grievance procedures outlined in the CBAs were clear and unambiguous and that the plaintiff had no right to ignore the CBAs. The court reasoned that a CBA should be evaluated just as any other contract would be and that the plaintiff understood and agreed to the CBA, and benefited from some of the provisions contained within it. As a result of the appellate findings and ruling, the plaintiff will be forced to pursue his claims at arbitration as stated in the CBAs.

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