CLASS ACTION WAIVERS:
Concepcion v. AT&T Mobility v. Concepcion: The United States Supreme Court ruled that Federal Arbitration Act (FAA) preempted state law. In other words, if the parties freely entered into an arbitration agreement under the FAA, then state laws that might otherwise invalidate the arbitration agreement could not invalidate the agreement. Typically, arbitration agreements require the consumer or employee to waive the right to take their cases to court. Further, they require the consumer and employee to waive their right to bring a class action in the arbitration proceedings. Thus, arbitration clauses can provide companies a way to avoid potential class action liability.

Iskanian v. CLS Transportation Los Angeles: An arbitration clause requiring an employee to waive his or her right to bring Private Attorney General Act claims on behalf of a group of aggrieved employees who have suffered similar employment law violations are invalid. Employees always have the right to seek penalties on behalf of the state for labor code violations.
Sanchez v. Valencia: Class Action waivers in arbitration clauses are enforceable in consumer contracts. Reading between the lines of the California Supreme Court’s decision, that is probably true even where a court finds that the remaining provisions in the arbitration agreement are unconscionable.

MEAL PERIODS:
Brinker Restaurant Corporation v. Superior Court: Employers have a duty to “provide” meal periods for its qualifying employee. However, employers need not ensure that employees get meal periods. Rather, they only need to provide the opportunity to receive a meal period.

HARASSMENT AND DISCRIMINATION:
Miller v. Department of Corrections: Miller learned that the chief deputy warden was having sex with three of Miller’s piers. Over a period of years, each one received perks, favors, promotions, coveted transfers, etc. that other employees did not get. In certain instances, the warden favored his less qualified paramours over Miller. Miller sued for discrimination and harassment. The trial court and the appellate court dismissed Miller’s claims because no harassment directly occurred to her. However, the California Supreme Court said: “. . . although an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment . . .”. Accordingly, it ruled that Miller suffered harassment.

Lyle v. Warner Bros. Television Productions:
Harassing language, by itself, may not create a hostile work environment. For instance, when harassing language is part of a creative work environment. Lyle took a job on the cast of the hit show “Friends”. She was warned that the writers creatively used vulgar, sex based language to help them write scripts. It was not directed toward Lyle and she did not complain about it. The writers did the following: discussed “blowjobs”, described the types of women they liked to have sex with, drew pictures of naked women, simulate masturbation, described how they would have sex with female caste members, etc. Regardless, the California Supreme Court said employee Lyle had no claim for sexual harassment.

Harris v. Santa Monica:
In a discrimination case, an employee must show that discrimination was a “substantial factor” factor for the employer’s adverse employment action (in this case, termination). Further, an employer could still win the case if it proved that it would have terminated the employee anyway for legitimate reasons, such as poor job performance. If the employer prevails on showing it would have terminated the employer anyway, then the employee cannot receive damages. However, the employee could still win injunctive relief, such as an order to stop discriminatory practices, and could win attorneys’ fees.

Yanowitz v. L’Oreal USA, Inc:
When an employee refuses to go along with a boss’s sexual harassment and gets fired for it, that employee has a claim for retaliation. Yanowitz’s male boss told her to fire a female sales associate who the boss claimed was “not good looking enough”. She was to replace the associate with “somebody hot”. She refused and was harassed in retaliation for failing to fire the associate. She eventually quit and sued. The court said L’Oreal retaliated against Yanowitz.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)