Mr. Salas had worked for Sierra Chemical Company in California for a number of years when he injured his back on the job. The company had regular seasonal layoffs during the winter months and typically hired back its workers when business picked up in warmer months. However, after Mr. Salas injured his back on the job and filed a worker’s compensation claim, Sierra refused to hire him back until he could prove that he no longer needed an accommodation for his back injury. Mr. Salas filed a lawsuit against Sierra for unlawful employment discrimination and retaliation under the California Fair Employment and Housing Act, claiming that Sierra refused to accommodate his physical disability and refused to rehire him in retaliation for having filed a worker’s compensation claim.

Almost two years after refusing to rehire Mr. Salas, and just before the case was set to go to trial, Sierra found evidence that Mr. Salas had used someone else’s social security number when he applied for the job many years ago. The company argued that this information provided a complete justification for throwing his lawsuit out of court. Fortunately, the California Supreme Court disagreed, ruling that an employer cannot completely escape from liability just because it later finds evidence, after a lawsuit is filed, that the employee it discriminated against was undocumented. The Court explained that employers would otherwise have a powerful incentive to hire undocumented workers, or “look the other way” when hiring employees they suspect to be undocumented, because they would be able to violate any number of California’s employment laws (including minimum wage laws, child labor laws, and anti-discrimination laws) and get away with it if any of their undocumented employees ever sued to enforce the law.

In reaching its decision, the California Supreme Court examined both federal immigration law and California employment law. The Court determined that since employers are not allowed to intentionally hire undocumented workers under federal law, the State cannot require an employer to pay lost wages to the employee for the time period after it learns of the employee’s undocumented status. (The state also cannot force an employer to reinstate an undocumented employee.) However, in order to help police and enforce California’s employment laws, the State can require employers to pay for other financial damages incurred as a result of its unlawful acts, including back pay for the time period before it finds evidence of an employee’s undocumented status. In other words, if employers violate the California’s employment laws, they can still be forced to pay their employees large financial awards even if they later find evidence that their employees did not have proper work authorization.

August 6, 2014 Heather Conger

Edward Lane was a director of a program for underprivileged youth operated by Central Alabama Community College (CACC). As the director, he conducted an audit of the program’s expenses and found that an Alabama State Representative, Susan Schmitz, was on the payroll even though she was not doing any work for the program! Mr. Lane terminated Ms. Schmitz’s employment and soon thereafter, Ms. Schmitz was indicted on mail fraud and theft charges. Mr. Lane testified against Ms. Schmitz about why he fired Ms. Schmitz and Ms. Schmitz was ultimately convicted.

After he testified, Mr. Lane, along with 28 other employees were terminated. But a few days later, CACC’s president Steve Franks hired back everyone other than Mr. Lane and one other employee. Mr. Lane filed a lawsuit claiming that Mr. Franks had violated his First Amendment rights by firing him in retaliation for testifying against Ms. Schmitz.

Prior cases have called into question when First Amendment protections apply to public employees. In determining whether a public employee is protected under the First Amendment, courts first determine whether the employee spoke as a “citizen” on “a matter of public concern.” It was not Mr. Lane’s job to testify against Ms. Schmitz – he merely learned about the corruption she was involved in through his job. The Court rightly determined that testimony in a court proceeding is a “quintessential example of citizen speech.” The Court also decided that Mr. Lane’s testimony about “corruption in a public program and misuse of state funds” was clearly a matter of public concern. Finally, the Court decided that the CACC did not have any justification for treating Mr. Lane differently.

The Supreme Court’s ruling means that public employees who witness corruption at work will no longer be in the “impossible position” of being “torn between the obligation to testify truthfully and the desire to avoid retaliation and keep their jobs.” Now public employees who learn about corruption or criminal activity on the job and testify about that unlawful conduct are still protected by the First Amendment. Even though this case applies specifically to First Amendment protections for public employees, the Court emphasized the importance of whistleblowing and the value of encouraging this type of speech which will likely have ramifications for both public and private sector employees.

This is a win for public employees and the public at large who have a shared interest in exposing corruption in government.

July 7, 2014 Jean Krasilnikoff

Mr. Ventress claimed he was retaliated against as a flight engineer because he reported safety concerns. The case took three trips to the Ninth Circuit. In the first appeal, Ventress v. Japan Airlines (Ventress I) , 486 F. 3d 1111 (2007), the Ninth Circuit held that the Friendship Commerce and Navigation Treaty did not bar or preempt Mr. Ventress’ claims. In the second trip to the Ninth Circuit, it held that the Airline Deregulation Act did not bar or preempt Mr. Ventress’ claims. Ventress v. Japan Airlines (Ventress II), 603 F.3d. 676 (2010).

However, Mr. Ventress wasn’t so lucky on his third journey to the Ninth Circuit, which held that Mr. Ventress’ public policy/safety claims were barred by the Federal Aviation Act (FAA). The Court held that the claims would require the jury to decide safety questions that are governed by the FAA which occupies the field of aviation safety. Ventress v. Japan Airlines (Ventress III) 747 F.3d 716 (2014).

Although not a good outcome for Mr. Ventress, this is a fairly unique outcome limited to industries whose safety is carefully and extensively regulated by the federal government, such as the airline industry. Others should not be deterred from bringing state law public policy claims if, for example, fired for reporting a safety or other public policy concern.

June 27, 2014 Jody LeWitter Public Policy

Mr. Wade brought a claim for wrongful termination in violation of public policy. His public policy claim was for race discrimination. Wade justified this outcome by noting the uniqueness of the Fair Employment and Housing Act’s statutory scheme. That part, I generally understand, even if I don’t agree with it However, the Court didn’t stop there. It came up with a hard-to-follow and not so well- reasoned argument that Mr. Wade’s public policy against race discrimination was violated was encompassed in his union arbitrations and therefore precluded by it. The fact that his union arbitration didn’t in any way address race discrimination, didn’t stop the Court from its labored and illogical analysis that it did. So, be very careful of your labor arbitration’s impact on any civil case you might bring!

Jody I. LeWitter December 17, 2013

Instead of heeding the warning of being particularly careful not to retaliate, or appear to retaliate, against an employee with a pending claim, the County of Kern threw caution to the wind and sued Dr. Jadwin in state court, claiming that the good doctor filed a false claim for $3125 in expenses. Fresno’s claim against Dr. Jadwin was assigned to mandatory arbitration where Dr. Jadwin prevailed. After a variety of inappropriate maneuvering by the County, the State Court ruled that Fresno’s claim was frivolous and brought to harass Dr. Jadwin.

The Court of Appeals, in County of Kern v. Jadwin (July 5, 2011) — C.A. 4th — –, 2011 WL 2611819, affirmed the finding by the trial court that the case was frivolous and upheld the trial court’s award of $50,000.00 in attorney’s fees. The Court of Appeals agreed with the lower court that the facts “‘paint a picture . . .’ of a lawsuit filed and maintained for the purpose of harassing Jadwin.”

This case drives home the lesson that an employer must tread lightly once an employee has filed a claim, and should ensure that the employee is treated the same as other employees. It is equally true that, once an employee makes or anticipates making a claim of any sort, he or she should understand that his/her actions may be put under the employer’s microscope, and thus the employee should use every effort to comply with all company rules and regulations and perform work in an exemplary manner while under this microscope!

Jody LeWitter July 25, 2011

Jody LeWitter July 18, 2011

Therefore, it should come as no surprise that the court in Silguero v Creteguard, 187 Cal. App. 4th 60 (2010) held that a plaintiff stated a cause of action for violation of public policy where her current employer fired her because her past employer wrote a letter asking that her current employer assist in enforcing an illegal non-compete agreement prohibiting her from working in sales for 18 months after the termination of her employment. This is a simple, straight forward, public policy claim that should serve as a warning to employers to act cautiously regarding non-compete agreements – or better yet – just stay away from them.

The only question in the Silguero case is whether the employee should have also brought a claim against her past employer based on the letter it wrote, for violation of public policy and/or other tort claims such as intentional interference with contract or intentional interference with prospective economic advantage. After all, Silguero’s past employer really is as guilty a party as her current employer, as its actions caused her current employer to fire her. Let’s keep hoping that employers stay away from these non-compete agreements, and if they don’t, that the courts keep telling them to do so!

Jody LeWitter January 23, 2011