California Employment Law Blog
The Court of Appeals of California recently issued an opinion addressing several employment claims, including whether a union may be responsible for aiding and abetting discrimination. The plaintiff in this matter filed a wrongful termination case against his employer, a janitorial services company, and the union that represents the employer. The relevant issue on appeal is whether the trial court erred in denying the plaintiff’s leave to amend to claim that the Union aided and abetted the employer’s violation.
In 2012, the employer hired the plaintiff to work as an “additional services” employee to provide janitorial services at a location. About a year later, the employer-provided written confirmation that the plaintiff was a “permanent employee.” In 2014, the plaintiff took leave under the California Family Rights Act (CFRA) to care for his terminally ill wife. A day after returning to work, his supervisor informed him that he was terminated because another employee had filled the position. Shortly after his termination, the plaintiff filed a discrimination and retaliation charge against his employer and the Union.
In response, the employer argued that they unintentionally and erroneously issued the plaintiff a “permanent employee” letter. Further, they explained that another employee was next in line to obtain the position according to their seniority scheme. The Union argued that their actions were not motivated by discrimination but solely their responsibility to enforce their seniority hiring protocols.
At trial, the Union moved to exclude all evidence that it violated the CFRA, arguing that they were not the plaintiff’s employer. In return, the plaintiff failed to amend his complaint to add the Union as his joint employer or in the alternative, if the Union was not his employer, they aided and abetted the employer’s discrimination.
Under California’s Fair Employment Housing Act (FEHA), it is illegal to aid and abet a discriminatory employment practice. Further, a non-employer can be vicariously liable for an employer’s violation. In this context, the plaintiff must establish that the Union functioned as an employer’s role under the law. Here, the plaintiff’s complaint does not allege sufficient facts to establish that the Union knew that the employer granted the plaintiff’s leave or that they knew of any CFRA violation. As such, because the Union did not make a “conscious decision” to aid in the commission of wrongful acts, they cannot be liable. Ultimately, the plaintiff cannot hold the Union liable for the employer’s employment decision.
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