More Case Summaries

Spielbauer v. County of Santa Clara (2009) 45 Cal.4th 704

The California Supreme Court ruled that public employees can be disciplined, up to and including dismissal from employment, if they refuse to cooperate in an investigation when advised that their answers will not be used against them in a criminal proceeding.  In  the case, the plaintiff, a deputy public defender, was accused of making deceptive statements to the court while representing a criminal defendant.  The County questioned the plaintiff, and advised him that his responses would not be used in any criminal proceeding.  Plaintiff refused to answer the questions, and invoked his privilege against compelled self-incrimination under the federal and state constitutions.  The County terminated his employment, in part based on  his refusal to answer its questions.  The employee challenged his dismissal.  Based on an analysis of both federal and state law authority, the California Supreme Court concluded that the public employer does not have to seek, obtain and confer a formal guarantee of criminal use immunity before requiring its employee to answer questions related to the investigation.  Public employees can therefore be disciplined, up to and including dismissal, for refusing to cooperate in the employer’s investigation as long as the employees are advised that their  answers will not be used against them in a criminal proceeding.

 

Lonicki v. Sutter Health Central (2008) 43 Cal.4th 1139

The California Supreme Court settled two key issues involving the Fair Employment and Housing Act’s (FEHA) anti-retaliatory provisions in Gov. Code § 12940(h).  First, the Court affirmed that a retaliation claim may be brought if the employee complained of or opposed conduct the employee reasonably believed to be discriminatory, even if it is later determined that the conduct was not actually discriminatory.  Second, the Court adopted the “materiality” test to determine whether an actionable adverse employment action had occurred, and held that an action is an adverse employment action if it is reasonably likely to impair a reasonable employee’s job performance or prospects for advancement or promotion, e.g., discharge, demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted poor job evaluations, written reprimands, suspensions, and solicitation of negative comments by co-workers.  The court reasoned that actions should not be evaluated singly to determine materiality.  Rather, all alleged retaliatory actions should be considered in the totality of the circumstances.  Additionally, the “continuing violation” doctrine should be applied, meaning that actions that occurred prior to the running of the statute of limitations may also be considered.

 

Green v. State of California (2007) 42 Cal.4th 254

This case answered the question of whether the employer or the employee bore the burden of proof in certain disability discrimination cases under California’s Fair Employment and Housing Act (FEHA).  In a 4-3 decision, the Supreme Court held that employees have the burden to prove that they are able to perform the essential functions of their position, with or without reasonable accommodation.  Because case law interpreting the federal Americans With Disabilities Act (ADA) also holds that the employee bear the burden of proof on this issue, an employee who alleges disability discrimination now has the burden of proof under both FEHA and the ADA, or his or her case will be dismissed.

 

Gentry v. Superior Court (Circuit City) (2007) 42 Cal.4th 443

This case involved the question of whether, in the context of a claim involving overtime pay issues, an employer can enforce an employment agreement provision in which the employee purportedly waives the right to bring a class action against the employer.  In yet another 4-3 decision, the California Supreme Court held that although such provisions are not categorically unenforceable, the trial court may invalidate the provision if, after a review of several factors identified in the opinion, it determines the class action prohibition would in effect defeat or undermine the employee’s right to enforce the wage laws by “placing formidable obstacles” in the employee’s enforcement of that right.

 

City of Ontario v. Quon,___ U.S. ___, 130 S. Ct. 2619, 177 L. Ed. 2d 216 (2010).

The United States Supreme Court considered whether a police officer for the City of Ontario had a reasonable expectation of privacy in text messages he sent using a city-owned digital device, and whether the city’s review of those messages constituted a search analogous to a governmental search of an employee’s office or workspace.  The Court held that the search of the officer’s text messages was reasonable because the search was both reasonable in scope and related to a legitimate work-related purpose.  Accordingly, the Court held that the City did not violate the Fourth Amendment or the officer’s right to privacy.

 

California Administrative Agency Opinions

DLSE Opinion Letter, April 7, 2010

On April 7, 2010, California’s Division of Labor Standards Enforcement (DLSE) issued an opinion letter addressing the employment status of certain unpaid interns.  Due to the dearth of California authority on the subject, the DLSE considered the federal Fair Labor Standards Act, and set forth six factors that should be analyzed in determining whether unpaid interns are employees for purposes of California’s minimum wage law:  (1) the training, even though it includes actual operation of the employer’s facilities, is similar to that which would be given in a vocational school; (2) the training is for the benefit of the trainees or students; (3) the trainees do not displace regular employees, but work under their close supervision; (4) the employer that provides the training receives no immediate advantage from the activities of the trainees or students and, on occasion, the employer’s operations may be impeded; (5) the trainees are not necessarily entitled to a job at the conclusion of the training period; and (6) the employer and the trainees or students understand that the trainees are not entitled to wages for the time spent in training.  The DSLE analyzed the intern program that was the subject of the Opinion Letter and found that the unpaid interns were not employees and, therefore, were exempt from California’s minimum wage law.

 

U.S. Ninth Circuit Cases

EEOC v. Federal Express Corp., 558 F.3d 842 (9th Cir. 2009)

In a ruling that directly conflicts with a ruling  of the federal Fifth Circuit Court of Appeals, the Ninth Circuit held in this case that the Equal Employment Opportunity Commission (EEOC) retains the power to enforce subpoenas and investigate charges of discrimination even after it has issued a right-to-sue notice to an employee that grants the employee the right to file a lawsuit against the employer.  Employers in the Ninth Circuit therefore face potential parallel litigation – defending against the employee’s lawsuit, while at the same time being required to respond to EEOC requests for information and/or subpoenas.  Normally, the EEOC terminates its processing of a charge when it issues a right-to-sue notice.  The EEOC decided to continue to investigate the charge in the Federal Express case because it involved a possible policy or pattern of discrimination affecting other employees.  The Ninth Circuit court held that under the provisions of Title VII, the applicable federal regulations, and the EEOC’s interpretation of its regulations, the EEOC retained that authority, under limited circumstances.  The court expressly declined to follow a decision of the Fifth Circuit, which held that the EEOC’s issuance of a right-to-sue notice divested the EEOC of authority to further investigate.  EEOC v. Hearst Corp., 103 F.3d 462 (5th Cir. 1997).

 

Levine v. City of Alameda, 525 F.3d 903 (9th Cir. 2008)

The Ninth Circuit Court of Appeals held that the City of Alameda violated a former employee’s due process rights when it laid him off without providing him with a pre-termination hearing.  The City claimed that the employee was laid off  because funding for his position had been ended.  The employee asserted his lay off was a pretext and that he was terminated because the City Manager did not like him.  On the surface, this opinion appears to create a conflict with an important decision of the California Court of Appeal, which held that the State Personnel Administration was not required to provide a pre-termination hearing to laid off employees in the circumstances of that case, which involved a large layoff of employees.  Duncan v. Dept. of Personnel Admin. (2000) 77 Cal.App.4th 1166.  The Duncan case has been relied on by public entities in fashioning lay off procedures that do not provide a pre-termination hearing to laid off employees.  An examination of Levine reveals, however, that Levine can be harmonized with Duncan.  In fact, in Duncan, the Court cites a case that held that employees who allege that their lay off was pretextual might be entitled to a pre-termination hearing, the precise situation in Levine.  However, because the due process analysis is fact-specific and involves the significant constitutional right to public employment, employers should carefully weigh the factors in the applicable balancing test before denying an employee a pre-termination hearing.