E-Blasts

The California Supreme Court recently issued a favorable ruling for employers who catch an employee working elsewhere while out on protected leave under the California Family Rights Act (CFRA).  In Richey v. Autonation, Inc., Richey received his employer’s employment manual that prohibited outside employment while on medical leave.  Shortly before taking CFRA leave, the employee had opened a seafood restaurant.  

While he was on leave, his employer discovered that he was working at that restaurant, sweeping, answering phones and hanging signs.  In response, the employer sent him a letter reiterating its workplace policy prohibiting such outside employment.  When Richey ignored these letters and warnings, his employer terminated him.  Richey sued for multiple claims under the California Fair Employment and Housing Act (FEHA) and the CFRA.

The employer successfully compelled Richey’s case to arbitration, where the arbitrator’s award was for the employer.  The arbitrator ruled the employer could terminate him and refuse to reinstate him if it had an “honest belief” that he was abusing medical leave or not being truthful about his outside employment.  The arbitrator also found that Richey had violated the workplace policy against outside employment while on leave.

The California Court of Appeal recently gave a win to employers battling class action lawsuits with Private Attorneys General Act (“PAGA”) claims. PAGA authorizes aggrieved employees to bring a lawsuit on behalf of themselves and other current and former employees in place of California’s Labor & Workforce Development Agency (“LWDA”). A PAGA lawsuit may be brought for any violation of the California Labor Code, regardless of how small, technical, or short-lived the alleged violation. If successful, the plaintiff splits the penalties with the LWDA: 75% to LWDA and 25% to the plaintiff.


Plaintiff Corina Munoz was a former cashier at Chipotle. Plaintiff alleged that Chipotle forced employees to buy non-slip shoes from “Shoes for Crews,” illegally deducted the cost of those shoes from employees’ paychecks, and provided improper wage statements. Plaintiff’s complaint also sought civil penalties on behalf of themselves and approximately 26,000 current and former employees under PAGA.

The long-awaited amendments to the paid sick leave (“PSL”) law have arrived. They make a good number of clarifications, change calculations of sick pay, provide a grandfather clause for pre-existing PTO plans, and lays out how it affects certain state employees. Although the amendments still do not explain how the “24 hours or 3 days of sick leave” translates for employees working 10 hour regular shifts, it is a welcome change from the previous version of the law.

A breakdown of the changes is as follows:

A May 15, 2015 California Appellate Court decision has provided significant guidance on limiting Plaintiffs’ scope of discovery in representative actions brought under the Private Attorney’s General Act of 2004 (“PAGA”). In a PAGA lawsuit, the Plaintiff must establish that he represents “similarly aggrieved” employees but need not establish the onerous requirements of class certification. After the decision in Williams v. Superior Court, Plaintiffs must now first establish, by more than just mere allegations in their complaints, they themselves were subjected to violations of the Labor Code and that the employer’s employment practices are uniform throughout the company before they may seek broad discovery relative to other employers.


The Plaintiff in Williams was a non-exempt employee for the retail store Marshalls who brought the PAGA lawsuit against the retailer, alleging failure to provide meal and rest breaks, inaccurate wage statements, failure to reimburse employees for expenses and failure to pay all wages earned.


The Plaintiff sought to discover the names and contact information of all non-exempt employees in California. The Defendant objected on multiple grounds, including privacy rights of its employees. At the time of the motion to compel the discovery of employee names and contact information, the Plaintiff had not been deposed nor had there been any discovery; all that existed were the allegations of the initial complaint.

The California Appellate Court recently ruled in favor of an employer who attempted to reasonably accommodate an employee but could not do so because the employee could not perform the essential job functions and there were not any alternate positions for which the employee was qualified.

A reasonable accommodation is a modification or adjustment to the work environment that enables the employee to perform the essential functions of the job he or she holds.  The Fair Employment and Housing Act (and comparable federal law) requires employers to make reasonable accommodations for the known disability unless doing so would produce undue hardship to the employer’s operation.

In Nealy v. City of Santa Monica, Plaintiff Tony Nealy was a solid waste equipment operator and injured his knee on the job moving a large bin of food waste in 2003. The City advised Nealy that it would consider a lateral transfer or voluntary demotion and identified a groundskeeper position that was approved by the City doctor.

In 2006, Nealy was having trouble performing some groundskeeper duties and was later permitted to do light duty office work. Nealy expressed his wish to return to a solid waste equipment operator position as a driver of an automatic garbage truck. However, the City identified numerous essential functions that it believed Nealy could not perform based on some restrictions Nealy had, such as his inability to kneel, squat or climb. The City discussed reassigning Nealy to an alternate vacant position and identified alternate positions for which Nealy could apply. However, Nealy was not qualified for these positions and was not hired for either of the positions to which he applied. Nealy sued the city alleging, among other things, failure to engage in the interactive process and failure to provide reasonable accommodation.

The Occupational Safety and Health Standards Board has overhauled California Code of Regulations, Title 8, section 3395 (heat injury) including the creation of a “10 minute preventative cool-down rest period” for every two hours worked during high heat days. The changes go into effect May 1, 2015.

The newly revised section 3395 includes the following requirements:

Water: Must be
• Fresh, pure (potable), and suitably cool (lower than ambient temperature)
• Provided to employees free of charge
• Located as close as practicable to the work areas

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