When an employment situation sours and an employee pursues his rights, usually at some point there is talk of settlement. Almost routinely, employers include a no-rehire provision in any settlement agreement which prohibits the former employee from seeking reemployment with the employer. While this may not seem like a big deal if you work for a small company and have no intention of seeking reemployment with the same people who wronged you in the first place, for individuals who work for large employers, the no-hire provision can create significant hardship. For example, if you work for a major retailer with numerous locations and you are terminated, a no-rehire provision might prevent you from working for that company ever again, in any capacity. That means, even if you wanted to work for a store 100 miles away, you would be barred from doing so. This is particularly problematic for long-term employees who have deep knowledge of the employer’s policies and practices and have been successful in their positions for years- they know the job, and have done it well, and now they are unable to apply for any future job at the company where their skills are a perfect match. This is also a significant problem for people who work for a utility; it may be that there is really only one employer in the area you can work for and a ban on working for that company will prevent you from working, period. The no-rehire provision would require you to either move to a new location or develop skills for an entirely different field. It seems, to many employees, like a final act of retaliation by their former employer.

Starting January 1, 2020, employment dispute settlement agreements cannot contain a no-rehire provision and such provisions are void as a matter of law and public policy. There is an exception, undoubtedly inspired by the #MeToo and #TimesUp movements- if an employer has made a good faith determination that the terminated employee engaged in sexual harassment or sexual assault, the employer may prohibit or restrict the terminated employee from obtaining future employment with the employer.

The new prohibition on no-rehire provisions eliminates a punitive and sometimes career-ending tool that employers routinely employ and is a victory for workers in California. As employee-advocates we are thrilled with this new law; employees who stand up for their rights no longer have to give up potential future employment just because they did so.

Jean Krasilnikoff

The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation against California employees on a variety of bases. The FEHA provides some of the best employment protections in the country, and has been expanded several times over the years to afford additional protections in the workplace. However, one of the greatest hurdles to employees is the statute of limitations. In California, an employee has one year from the date of the unlawful practice to file a charge with the Department of Fair Employment and Housing (“DFEH”). Failure to file a charge within the limitations period waives an employee’s rights to any claims she has under the FEHA. Further complicating matters is that the intake process at the DFEH has several steps and it has been unclear to employees as to when their charge was actually filed, and thus, whether they filed within the one-year period.

On Thursday, Governor Newsom signed AB 9 which extends the one year period to three years starting on January 1, 2020. The bill also specifies filing a complaint means filing an intake form with the DFEH and the operative date of the verified complaint relates back to the filing of the intake form- clarifying what has been a confusing issue for employees over the years. This new statute triples the time an employee has to file their charge, which is particularly valuable for those employees who feel they cannot come forward soon after the adverse employment action.

However, it is important to note that the bill specifically says it will not “be interpreted to revived lapsed claims.” So, if your statute of limitations has already passed, this new extension will not give you any relief. However, if you suffer an adverse employment action (for example, if you are fired) in or after January 2020, the new statute of limitations will apply. The stickier issue is what happens to claims that arose this year, or will arise between now and the end of the year? If you were fired on March 1, 2019, and believe it was due to your gender, you would have until February 2020 to file your charge. But what happens now? Do you have until February 2022 to file your claim? Or, do you still need to file by February 2020?

Normally, when a statute of limitations is increased, it applies prospectively to pending cases. In analyzing the bill, the Senate Judiciary Committee noted: “Applying these rules to this bill, it would automatically extend the time to file for incidents that occurred before the effective date of the change in the law, but for which the limitations period had not yet expired on the date of the enactment.” However, because the law does not make this point entirely clear, we strongly advise that you file as soon as possible to preserve any rights that you may have so that there is no argument that you have failed to file within the statute of limitations period. There are other good reasons to file sooner rather than later too- memories fade, key witnesses move out of state, documents go missing – so if you are considering filing a charge, don’t count on that three year statute just yet.

If you believe you have claim for work place discrimination, harassment, and/or retaliation and would like to discuss your options, contact Siegel LeWitter Malkani at (510)452-5000.

Jean Krasilnikoff

It is common practice throughout California to have an employee sign an arbitration agreement at the time she is hired. These agreements are generally non-negotiable, buried in a pile of new hire paperwork, and require the employee to arbitrate any claims arising out of employment. While valid arbitration agreements provide some of the safeguards that are afforded to litigants in court, it often takes away basic protections and rights including a trial by jury, and class or collective action. Arbitration is also a private process so it allows an employer to keep their wrongdoing under wraps.

The United States Supreme Court has said, repeatedly, that arbitration agreements are valid in the employment context. Recognizing the inherent imbalance in power between employers and employees, several states have tried to stop employers from forcing employees into arbitration. However, given the Supreme Court’s rulings, it is impossible to ban arbitration in employment altogether. The hope is that in California, AB 51 will even the playing field before an employee signs an arbitration agreement; requiring that an employee can only enter such an agreement voluntarily. The law also prohibits an employer from retaliating against an employee who declines to enter into an arbitration agreement, which provides additional protection.

Another significant benefit of the law is that attorneys’ fees are available to prevailing plaintiffs for violations of the law. This is an important piece of the legislation as the availability of attorneys’ fees greatly impacts the ability of plaintiffs’ firms to actually take and litigate these claims. It also provides a valuable bargaining chip in settlement negotiations.

While we expect that there will be legal challenges to AB 51, come January 1, 2020, employees have expanded and important rights with respect to whether they agree to enter into an arbitration agreement. While worker protections at the federal level are being chipped away, in California AB 51 is a significant step in the right direction to preserving employee rights in the workplace.

Jean Krasilnikoff

The lower court dismissed her case, characterizing her claims as “petty workplace gripes”. Ms. Thomas claimed that her employer retaliated against her by removing her from an unpaid position, removing her from a teaching assignment, and denying her a previously granted vacation.

Discussing the importance of First Amendment rights, including the fact that these rights might be chilled by the types of retaliatory actions the County of Riverside took against Ms. Thomas, the Ninth Circuit reversed the dismissal of the case, emphasizing the importance of free speech for public employees.

December 2, 2014 Jody I. LeWitter

First, the California Court of Appeals made clear that the trial court overstepped its bounds when it dismissed a sexual harassment claim. Following the U.S. Supreme Court opinion in Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998), the court held that same-sex harassment which included sexual comments intended to humiliate the plaintiff due to his gender identity constituted sexual harassment. It reversed the lower court’s ruling that the harassing conduct was not sufficiently “severe or pervasive” to constitute sexual harassment. It found that several months of a course of conduct of gifts and lunch purchases, sexual jokes, and pornographic computer images, was sufficient to bring a claim for sexual harassment.

On the other hand, the Court of Appeals dismissed a sexual harassment claim against another supervisor whose only conduct was showing computer pornography to a group of employees once or twice, and making an occasional joke.

Lewis also addressed a thorny evidentiary issue: in a retaliation claim, should a judge admit or exclude evidence of the underlying harassment where plaintiff’s claim is that he/she complained about the harassment and was retaliated against for making the complaint? In the Lewis case, the lower court held that the evidence of the harassment itself was not admissible. Instead, the court simply read a statement about the harassment. The Court of Appeals found this to be error. In other words, the jury needs to understand and be presented with the underlying conduct about which the plaintiff complains in order for the jury to rule on a retaliation complaint.

All this is good news for plaintiffs in sexual harassment or retaliation claims. And stay tuned, because the California Court of Appeals specifically did not address recent amendments to the Fair Employment and Housing Act which specifies that “…sexual harassment conduct need not be motivated by sexual desire.” Govt Code 12940(j)(4)(c). Certainly future cases interpreting this new provision should be helpful.

June 23, 2014 Jody LeWitter

However, the same panel of judges did understand that Ms. Westendorf’s claim for retaliatory termination should go forward, holding that there was a material fact as to whether she was fired because she complained of the crude and offensive remarks.

So, for Ms. Westendorf, the glass is half empty or half full, depending on the perspective!!

Jody I. LeWitter

After resigning, he sent a letter complaining that the reason he resigned was due to his supervisor’s “religious, racial and cultural bias against Arabs and Muslims.” Based on this complaint, the Hospital withdrew his job offer. Dr. Nassar filed a Title VII lawsuit claiming, among other things, retaliation. The jury found for Dr. Nassar and the Court of Appeals for the Fifth Circuit affirmed the retaliation verdict. (The jury also found for Dr. Nassar on his discrimination/constructive termination claim. The Court of Appeals reversed on that issue. That claim was not before the Supreme Court). However, the University appealed to the Supreme Court to decide what type of causation a plaintiff must prove in a retaliation case.

In Title VII discrimination cases, a plaintiff only needs to show that his discrimination was a “motivating factor” in the decision to terminate him. The “motivating factor” standard acknowledges that even though there may be legitimate factors in deciding to take an adverse employment action against an employee, if the employee shows that discriminatory animus was one of the motivating factors, he has met his burden.

In its June 24, 2013 University of Texas Southwestern Medical Center v. Nassar decision, the Supreme Court held that in proving a retaliation claim under Title VII, a plaintiff must prove “but for” causation. “But for” causation requires the employee to show that retaliatory animus actually motivated the employer’s decision to take the adverse action against the employee rather than the lower burden of showing that retaliatory animus was a motivating factor in the decision.

The Court’s justification was politically motivated. After explaining that the number of retaliation claims has increased substantially, the Court simply decided to limit these claims by arbitrarily making them more difficult to prove.

It is not 100% clear what the standard is for a retaliation claim under state law (the Fair Employment and Housing Act), but whatever the standard is, it is a better standard than under federal law. For years, California employees only had to prove that discrimination was a motivating factor in the employment decision to prove discrimination under FEHA. Recently, the California Supreme Court issued Harris v. City of Santa Monica, 56 Cal.4th 203 (2013), setting a brand new standard of “substantial motivating factor” – a standard lesser than “but for” but greater than “a motivating factor.” Harris v. City of Santa Monica specifically dealt with a mixed motive case.

We believe that “motivating factor” is still the standard in retaliation cases because retaliation cases were not discussed in the Harris v. City of Santa Monica decision, but what the courts do remains to be seen. Regardless, the State causation standard is better than the federal standard in a retaliation case. This isn’t true for the causation standard in a discrimination case, where “a motivating factor” is written right into the statute. See 42 US 2000e-2(m). While the Nassar decision was a striking blow against employees who are victims of retaliation, fortunately, California employees can avoid the heightened “but for” cause standard by bringing their case under FEHA. Still, all these mixed up standards make employment cases a little more complicated that necessary.

July 26, 2013 Jody LeWitter

Dr. Fitzsimons found out just how important this right was when she reported sexual harassment of employees of California Emergency Medical Physicians Medical Group (CEP), and found herself demoted. She sued, claiming retaliation.

CEP defended the case by claiming that Dr. Fitzsimons was a “partner” (one of 700 emergency physicians working for CEP and labeled as a partner) rather than an employee, entitled to the protection of FEHA. At trial, the jury found that Dr. Fitzsimons was a partner, and therefore, the trial court ruled against her.

Dr. Fitzsimons appealed claiming that, even if she was a partner, she still shouldn’t be retaliated against for reporting sexual harassment.

The Court of Appeals agreed, finding that since the statutory language said it protected “any person”, rather than just employees, it would thus protect partners against retaliation, as long as the partner was retaliated against for protesting conditions involving employees, here the sexual harassment of employees. Fitzsimons v. California Emergency Physicians Medical Group ___CA 4th___ (May 16, 2012).

Since many entities call those who really seem to be employees “partners,” this important case opens the door to an alternative theory of retaliatory termination. Retaliation plaintiffs, who may be considered partners, where the facts warrant it, should allege that they are employees and, in the alternative, are persons who complained about the rights of employees under the Fair Employment and Housing Act.

Jody I. LeWitter June 6, 2012

In this case, Officer Joaquin filed an internal charge of sexual harassment. His statement as to what happened certainly contains evidence that would permit any jury to find that he was sexually harassed. He recited how a Sergeant sexually harassed him, asked him on a date, and after Officer Joaquin told him he was not interested, continued to pursue him by, inter alia, following him around and making inappropriate comments, such as “you look nice standing there.” Joaquin v City of Los Angeles (Jan. 23, 2012) 202 Cal.App.4th 1207.

As stated above, Joaquin filed an internal complaint of sexual harassment. The Sergeant filed an internal complaint against Joaquin, and it took off from there with an Internal Affairs investigation, and a finding by a panel somewhat inappropriately labeled the “Board of Rights” (which consisted of two management level officer, who very well may have been biased and certainly weren’t outside neutrals, and one community member). The Board of Rights determined that Joaquin had fabricated his claims. Joaquin disagreed with the Board’s finding and filed a writ of mandate. The Superior Court, which heard the writ, agreed with Joaquin and ordered him reinstated. After that, Joaquin filed this action in court alleging retaliation. The jury not only found in his favor, but really found in his favor, awarding him $2 million.

Enter the Court of Appeals…The California Court of Appeals opened its discussion of the facts of this case by noting that, “This case has a somewhat tortuous procedural history.” It is absolutely true that the case has a tortured history, but, as indicated below, it is the Court of Appeals reasoning that most truly is tortuous.

This case obviously involves issues of credibility. Joaquin claims sexual harassment and retaliation; his Sergeant claims that Joaquin made these claims up to avoid disciplinary action. One of them is lying. The jury is supposed to decide, after hearing the evidence and seeing the witness, who is lying and who is telling the truth, right? The Court of Appeals admits: “Actions for unlawful discrimination and retaliation are inherently fact driven, and we recognize that it is the jury, and not the appellate court, that is charged with the obligation of determining the facts.” Nonetheless, the Court of Appeals turned this statement of the law – and logic- on its head by managing to reverse the verdict, usurping the jury’s power, and pronouncing its own fact finding that Joaquin’s claims were fabricated, even though obviously the jury believed the opposite!

The Court of Appeals laid the fault at the feet of the standard jury instructions on retaliation. These jury instructions require that a jury find “…that Richard Joaquin’s reporting that he had been sexually harassed was a motivating reason for the City of Los Angeles’ decision to terminate Richard Joaquin’s employment or deny Richard Joaquin promotion to the rank of sergeant.” The Court declared that these jury instructions were inadequate and furthermore that there was not enough evidence that Joaquin’s termination was retaliatory. The Court went through a tortured analysis of what it considered to be the retaliatory intend necessary to find for a plaintiff, and in doing so ignored much of the law which clearly establishes that an employer may be responsible for retaliation when the decision maker or the decision making is tainted by others who harbor a retaliatory intent. See, Reeves v. Safeway Stores (2004) 121 Cal.App.4th 95; Yanowitz v. L’Oreal (2005) 36 Cal.4th 1028. The Court of Appeals appears result driven; that is, driven to reverse this verdict.

The only solace that can be taken from the Court’s overreaching and interference with the jury’s determination is that, as said by the Court itself, this case was one involving “unique facts.”

Jody LeWitter March 6, 2012

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

The Fair Labor Standards Act prohibits employers from discharging “any employee because such employee has filed any complaint” asserting a violation of the Act. 29 U.S.C. Section 215(a)(3). This case turned solely upon the Supreme Court’s holding that the phrase “filed any complaint” includes the making of an oral complaint, here to Saint-Gobain’s officials.

The Court held that the “purpose and context” of the anti-retaliation provision led it to this interpretation. It noted that very real problems could occur if the provision did not protect those who complained orally: it could prevent government agencies from using hotlines; it could discourage the use of informal workplace grievance procedures; and it could make it difficult for workers who are less educated to complain. This led the Court to adopt a broad interpretation of the statute.

It is a cause for celebration every time this Supreme Court, with its largely pro-business slant, votes for the rights and concerns of employees. This case does provide more protection for employees around the country who complain about wage and hour violations, although the Ninth Circuit had, already, interpreted FLSA this way, to include oral complaints and thus California employees were already protected when making oral complaints. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999).

The Court did note that Saint-Gobain argued to the Supreme Court that FLSA’s anti-retaliation provision only applied to complaints to the government, not to private employers. Holding that Saint-Gobain abandoned this argument, the Court may have unnecessarily muddied the waters around this issue, as complaints to the employer, private or otherwise, are just the types of complaints that have historically been protected. Over ten years ago, the Ninth Circuit, noting well established law, clearly ruled that complaints to the employer are protected. Lambert v Ackerley, 180 F.3d 997 (9th Cir. 1999). Indeed, if the “purpose and context” of FLSA’s anti-retaliation provision covers oral complains, it should covers complaints to non-governmental organizations and complaints by an employee to his or her own employer. After all, it would be illogical for this Supreme Court to urge employees to go straight to the government to complain about FLSA violations and leave the employer/private business out of the loop.

Jody LeWitterApril 7, 2011

In this case, Ms. Regalado, an employee of defendant North American Stainless, filed a charge of sex discrimination with the Equal Employment Opportunity Commission (EEOC). Three weeks later, the defendant fired her fiancé, plaintiff Thompson. Thompson alleges that his firing was in retaliation for his fianceé’s filing of her charge of discrimination.

The US Supreme Court upheld Thompson’s charge, indicating that, if true, his firing violated the anti-retaliation provisions of Title VII. Relying on the spirit of the anti-retaliation provision, the Court held that the provision was intended to protect against employment actions that “….might have dissuaded a reasonable worker from making or supporting a charge of discrimination”, quoting Burlington Northern & Santa Fe Railway v. White, 548 US 53 (2006). The Court went on to indicate that not all third parties will be protected by this ruling, noting that a close family member will be treated differently than a mere acquaintance.

Although any act of retaliation should really be prohibited by the act, whether foisted upon a close family member or a more distant friend, for purposes of prohibiting employer retaliation, we have to see this case as a glass half full rather than half empty. This case is good news for employees who fear that standing up for their rights will expose not just themselves – but their loved ones – to retaliation. There are many employees who have family members working for the same employer, and thus should be relieved to know they are entitled to this protection.

Jody LeWitter March 3, 2011