Employment Issues Pending In California Supreme Court
USE NOTE: The information in this bulletin, including the framing of the issue presented, is taken from the California Supreme Court’s official website. Citations to the court of appeal's opinion are for informational purposes only. The grant of review automatically vacates the opinion, which cannot be cited as precedent.
Invasion of privacy. Do employees have an invasion of privacy claim when their employer installed a hidden surveillance camera in the office to investigate if someone was using an office computer for improper purposes, only operated the camera after normal working hours, and did not actually capture any video of the employees who worked in the office? Hernandez v. Hillsides, Inc., formerly at 142 Cal.App.4th 1377, No. S147552, review granted 1/3/07.
Non-compete clause. (1) Is a non-competition agreement between an employer and an employee, that prohibits the employee from performing services for former clients, invalid under Business and Professions Code section 16600, unless it falls within the statutory or judicially-created trade secrets exceptions to the statute? (2) Does a contract provision releasing “any and all” claims the employee might have against the employer encompass non-waivable statutory protections, such as the employee indemnity protection of Labor Code section 2802? Edwards v. Arthur Andersen LLP, S147190, formerly at 142 Cal.App.4th 603, mod. 143 Cal.App.4th 70b, No. S147190, review granted 11/29/06.
Workers’ compensation apportionment: SB 899. (1) Did SB 899’s repeal of Labor Code section 4750 and the enactment of new apportionment statutes change the law of apportionment of permanent disability indemnity as determined by this court in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1? (2) If so, how is permanent disability indemnity to be apportioned between injuries? Brodie v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 685, No. S146979; rev. granted 11/15/06; Welcher v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 818, No. S147030, review granted 11/15/06.
The State and Collective Bargaining. Did a collective bargaining agreement between the state and a union of state engineers, which required use of state engineers on public works projects before using private engineers, violate article XXII of the state Constitution, added by Proposition 35 in 2000? That measure provided that state entities “shall be allowed” to contract with private architectural and engineering firms for services on public works, and nothing in the Constitution shall be construed to “limit, restrict or prohibit” them from doing so. Consulting Engineers & Land Surveyors in California, Inc. v. Professional Engineers in California Government, S145341, 140 Cal.App.4th 466, review granted 9/13/06.
Talent agency/employment. Are the licensing requirements of the Talent Agencies Act (Lab. Code § 1700 et seq.) applicable to personal business managers as well as talent agents? (2) Is the doctrine of severability of contracts applicable to violations of the Act, or does any act of unlicensed procurement of entertainment employment for an actor by an unlicensed personal business manager in violation of the Act void a contract for personal management services in its entirety? Marathon Entertainment, Inc. v. Blasi, S145428, formerly at 140 Cal.App.4th 1001, rev. granted 9/20/06.
Invasion of privacy. Do employees have an invasion of privacy claim when their employer installed a hidden surveillance camera in the office to investigate if someone was using an office computer for improper purposes, only operated the camera after normal working hours, and did not actually capture any video of the employees who worked in the office? Hernandez v. Hillsides, Inc., formerly at 142 Cal.App.4th 1377, No. S147552, review granted 1/3/07.
Non-compete clause. (1) Is a non-competition agreement between an employer and an employee, that prohibits the employee from performing services for former clients, invalid under Business and Professions Code section 16600, unless it falls within the statutory or judicially-created trade secrets exceptions to the statute? (2) Does a contract provision releasing “any and all” claims the employee might have against the employer encompass non-waivable statutory protections, such as the employee indemnity protection of Labor Code section 2802? Edwards v. Arthur Andersen LLP, S147190, formerly at 142 Cal.App.4th 603, mod. 143 Cal.App.4th 70b, No. S147190, review granted 11/29/06.
Workers’ compensation apportionment: SB 899. (1) Did SB 899’s repeal of Labor Code section 4750 and the enactment of new apportionment statutes change the law of apportionment of permanent disability indemnity as determined by this court in Fuentes v. Workers’ Comp. Appeals Bd. (1976) 16 Cal.3d 1? (2) If so, how is permanent disability indemnity to be apportioned between injuries? Brodie v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 685, No. S146979; rev. granted 11/15/06; Welcher v. Workers’ Comp. Appeals Bd., formerly at 142 Cal.App.4th 818, No. S147030, review granted 11/15/06.
The State and Collective Bargaining. Did a collective bargaining agreement between the state and a union of state engineers, which required use of state engineers on public works projects before using private engineers, violate article XXII of the state Constitution, added by Proposition 35 in 2000? That measure provided that state entities “shall be allowed” to contract with private architectural and engineering firms for services on public works, and nothing in the Constitution shall be construed to “limit, restrict or prohibit” them from doing so. Consulting Engineers & Land Surveyors in California, Inc. v. Professional Engineers in California Government, S145341, 140 Cal.App.4th 466, review granted 9/13/06.
Talent agency/employment. Are the licensing requirements of the Talent Agencies Act (Lab. Code § 1700 et seq.) applicable to personal business managers as well as talent agents? (2) Is the doctrine of severability of contracts applicable to violations of the Act, or does any act of unlicensed procurement of entertainment employment for an actor by an unlicensed personal business manager in violation of the Act void a contract for personal management services in its entirety? Marathon Entertainment, Inc. v. Blasi, S145428, formerly at 140 Cal.App.4th 1001, rev. granted 9/20/06.
Employee. Penal Code section 385 makes it a misdemeanor for anyone, "personally or through an employee or agent," to move tools or equipment within six feet of a high voltage overhead line. Issue: was an unlicensed tree trimmer hired by homeowners to trim trees, including a tree with branches within six feet of a high voltage line, considered to be the homeowners' employee? (See Lab. Code 2750.5, 6303.) Ramirez v. Nelson, S143819, formerly at 138 Cal.App.4th 890, review granted 7/19/06.
Expense reimbursement. Does an employer comply with its Labor Code section 2802 duty - to indemnify employees for expenses necessarily incurred in discharge of their duties - by paying them increased wages or commissions instead of reimbursing for their actual expenses. Gattuso v. Harte-Hanks Shoppers, Inc., S139555, formerly at 133 Cal.App.4th 985, review granted 2/22/06.
Failure to provide meal/rest periods. Labor Code sction 226.7 requires 1 additional hour of pay for each day the employer fails to provide mandatory meal or rest periods. (1) Is this governed by the three-year statute of limitations for a claim for compensation or the one-year statute for a claim seeking payment of a penalty? (2) When an employee obtains such an award in administrative proceedings and the employer seeks de novo review in superior court, may the employee pursue additional wage claims not presented in the administrative proceedings? Murphy v. Kenneth Cole, Inc., S140308, formerly at 134 Cal.App.4th 728, review granted 2/22/06.
UC Whistleblowers. California's Whistleblower Protection Act requires that, before a University employee may sue for damages, they must file a complaint with the University and it must have failed to reach a decision within a specified time limit. Does this just require the exhaustion of the internal remedy as a condition of bringing the action, or does it bar an action for damages if the university timely renders any decision on the complaint? Miklosy v. Regents of University of California, S139133, unpublished opinion, review granted 1/18/06.
Medical marijuana & disability discrimination. Does an employee who uses marijuana off-duty for medical purposes under the Compassionate Use Act have a FEHA claim for disability discrimination, or a common law tort claim for wrongful termination in violation of public policy? Ross v. Ragingwire Telecommunications, Inc., S138130, formerly at 132 Cal.App.4th 590, review granted 11/30/05.
FEHA & disability discrimination. Who has the burden of proof: the employee, to make a prima facie showing that s/he had the capacity to perform all essential job duties; or the employer, to show the employee could not perform all duties without reasonable accomodation? Green v. State of California, S13770, formerly at 132 Cal.App.4th 97, review granted 11/16/05.
At will. An employment contract says “your employment . . . is at will,” and “[t]his simply means [employer] has the right to terminate your employment at any time.” Under this contract, may an employee be terminated at any time without cause, or only with cause, permitting introduction of extrinsic evidence on the proper interpretation of the contract? Dore v. Arnold Worldwide, Inc., S124494, unpublished opinion, review granted 7/21/04. 8/2/06 opinion upheld the clause as contemplating termination with or without cause. http://www.courtinfo.ca.gov/opinions/documents/S124494.PDF
Discharge & wages. Employee’s employment terminates on completion of an agreed-upon period of employment or specific task. Has the employee been “discharged” within the meaning of Labor Code section 201 such that “the wages earned and unpaid at the time of discharge are due and payable immediately”? Smith v. Superior Court, S129476, formerly at 123 Cal.App.4th 128; review granted 1/19/05. ANSWER: YES, PER OPINION ISSUED 7/10/06; slip opinion at: http://www.courtinfo.ca.gov/opinions/documents/S129476.PDF.
FEHA and free speech. (a) Is use of sexually coarse and vulgar language in the workplace sexual harassment under FEHA? (b) Does the potential imposition of FEHA liability infringe defendants’ free speech rights under the state or federal constitution? Lyle v.Warner Bros., S125171, formerly at 117 Cal.App.4th 1164, review granted 7/21/04. OPINION ISSUED 4/20/06: http://www.courtinfo.ca.gov/opinions/documents/S125171.PDF
Harassment by employer’s client. (1) Prior to 2003, did FEHA require an employer take reasonable steps to prevent hostile environment sexual harassment of an employee by a client with whom the employee is required to interact? (2) If not, did the Legislature intend the 2003 amendment to apply retroactively to incidents prior to the effective date? (3) If so, would applying the 2003 amendment violate federal or state due process ? Carter v. California Dept. of Veterans Affairs, S127921, formerly at 121 Cal.App.4th 840, review granted 12/1/04. OPINION ISSUED 6/8/06: http://www.courtinfo.ca.gov/opinions/documents/S127921.PDF
Police personnel records. When a request for information regarding a peace officer disciplinary proceeding is made under the California Public Records Act, what information is protected from disclosure as a “personnel record” under Penal Code section 832.7? Copley Press, Inc. v. Superior Court, S128603, formerly at 122 Cal.App.4th 489, review granted 12/1/04.
Family Rights Act. (1) Under the Family Rights Act - granting employees the right to a leave of absence when employee has a serious health condition making employee “unable to perform the functions of the position" - is the employee entitled to a leave of absence where the health condition prevents him/her working for a specific employer, but the employee can perform a similar job for a different employer? (2) Did defendant’s failure to invoke the statutory procedure for contesting the medical certificate preclude it from later contesting the certificate's validity? Lonicki v. Sutter Health Central, S130839, formerly at 124 Cal.App.4th 1139, review granted 3/16/05.
Government liability, "dismissal." Was an injured county employee “dismissed . . . for disability” within the meaning of Gov't Code section 31725, and thus entitled to back pay on reinstatement, where the employing agency had sent him a letter stating that he should not return to work until he either could do so without restrictions or was able to perform the light duty tasks required in his latest assignment without further complaint/injury? Stephens v. County of Tulare, S129794, formerly at 123 Cal.App.4th 964, review granted 2/23/05. 5/25/06 opinion: http://www.courtinfo.ca.gov/opinions/documents/S129794.PDF
Government liability, Brown Act. Under what circumstances, if any, does a public agency’s duty under the Meyers-Milias-Brown Act, to meet and confer with a recognized employee organization before making changes to working conditions, apply to actions implementing a fundamental management or policy decision where the adoption of that decision was exempt under Government Code section 3504? Claremont Police Officers Assn. v. City of Claremont, S120546, formerly at 112 Cal.App.4th 639, review granted 1/14/04. ARGUED & SUBMITTED 6/6/06; OPINION DUE.
Employee bonus plan. Does an employee bonus plan based on a profit figure that is reduced by a store’s expenses, including the cost of workers' compensation insurance and cash and inventory losses, violate (a) Business and Professions Code section 17200, (b) Labor Code sections 221, 400-410, or 3751, or (c) California Code of Regulations, title 8, section 11070? Prachasaisoradej v. Ralphs Grocery Company, Inc., S128576, formerly at 122 Cal.App.4th 29, review granted 12/15/04.
UC Whistleblowers. California's Whistleblower Protection Act requires that, before a University employee may sue for damages, they must file a complaint with the University and it must have failed to reach a decision within a specified time limit. Does this just require the exhaustion of the internal remedy as a condition of bringing the action, or does it bar an action for damages if the university timely renders any decision on the complaint? Miklosy v. Regents of University of California, S139133, unpublished opinion, review granted 1/18/06.
Medical marijuana & disability discrimination. Does an employee who uses marijuana off-duty for medical purposes under the Compassionate Use Act have a FEHA claim for disability discrimination, or a common law tort claim for wrongful termination in violation of public policy? Ross v. Ragingwire Telecommunications, Inc., S138130, formerly at 132 Cal.App.4th 590, review granted 11/30/05.
FEHA & disability discrimination. Who has the burden of proof: the employee, to make a prima facie showing that s/he had the capacity to perform all essential job duties; or the employer, to show the employee could not perform all duties without reasonable accomodation? Green v. State of California, S13770, formerly at 132 Cal.App.4th 97, review granted 11/16/05.
At will. An employment contract says “your employment . . . is at will,” and “[t]his simply means [employer] has the right to terminate your employment at any time.” Under this contract, may an employee be terminated at any time without cause, or only with cause, permitting introduction of extrinsic evidence on the proper interpretation of the contract? Dore v. Arnold Worldwide, Inc., S124494, unpublished opinion, review granted 7/21/04. 8/2/06 opinion upheld the clause as contemplating termination with or without cause. http://www.courtinfo.ca.gov/opinions/documents/S124494.PDF
Discharge & wages. Employee’s employment terminates on completion of an agreed-upon period of employment or specific task. Has the employee been “discharged” within the meaning of Labor Code section 201 such that “the wages earned and unpaid at the time of discharge are due and payable immediately”? Smith v. Superior Court, S129476, formerly at 123 Cal.App.4th 128; review granted 1/19/05. ANSWER: YES, PER OPINION ISSUED 7/10/06; slip opinion at: http://www.courtinfo.ca.gov/opinions/documents/S129476.PDF.
FEHA and free speech. (a) Is use of sexually coarse and vulgar language in the workplace sexual harassment under FEHA? (b) Does the potential imposition of FEHA liability infringe defendants’ free speech rights under the state or federal constitution? Lyle v.Warner Bros., S125171, formerly at 117 Cal.App.4th 1164, review granted 7/21/04. OPINION ISSUED 4/20/06: http://www.courtinfo.ca.gov/opinions/documents/S125171.PDF
Harassment by employer’s client. (1) Prior to 2003, did FEHA require an employer take reasonable steps to prevent hostile environment sexual harassment of an employee by a client with whom the employee is required to interact? (2) If not, did the Legislature intend the 2003 amendment to apply retroactively to incidents prior to the effective date? (3) If so, would applying the 2003 amendment violate federal or state due process ? Carter v. California Dept. of Veterans Affairs, S127921, formerly at 121 Cal.App.4th 840, review granted 12/1/04. OPINION ISSUED 6/8/06: http://www.courtinfo.ca.gov/opinions/documents/S127921.PDF
Police personnel records. When a request for information regarding a peace officer disciplinary proceeding is made under the California Public Records Act, what information is protected from disclosure as a “personnel record” under Penal Code section 832.7? Copley Press, Inc. v. Superior Court, S128603, formerly at 122 Cal.App.4th 489, review granted 12/1/04.
Family Rights Act. (1) Under the Family Rights Act - granting employees the right to a leave of absence when employee has a serious health condition making employee “unable to perform the functions of the position" - is the employee entitled to a leave of absence where the health condition prevents him/her working for a specific employer, but the employee can perform a similar job for a different employer? (2) Did defendant’s failure to invoke the statutory procedure for contesting the medical certificate preclude it from later contesting the certificate's validity? Lonicki v. Sutter Health Central, S130839, formerly at 124 Cal.App.4th 1139, review granted 3/16/05.
Government liability, "dismissal." Was an injured county employee “dismissed . . . for disability” within the meaning of Gov't Code section 31725, and thus entitled to back pay on reinstatement, where the employing agency had sent him a letter stating that he should not return to work until he either could do so without restrictions or was able to perform the light duty tasks required in his latest assignment without further complaint/injury? Stephens v. County of Tulare, S129794, formerly at 123 Cal.App.4th 964, review granted 2/23/05. 5/25/06 opinion: http://www.courtinfo.ca.gov/opinions/documents/S129794.PDF
Government liability, Brown Act. Under what circumstances, if any, does a public agency’s duty under the Meyers-Milias-Brown Act, to meet and confer with a recognized employee organization before making changes to working conditions, apply to actions implementing a fundamental management or policy decision where the adoption of that decision was exempt under Government Code section 3504? Claremont Police Officers Assn. v. City of Claremont, S120546, formerly at 112 Cal.App.4th 639, review granted 1/14/04. ARGUED & SUBMITTED 6/6/06; OPINION DUE.
Employee bonus plan. Does an employee bonus plan based on a profit figure that is reduced by a store’s expenses, including the cost of workers' compensation insurance and cash and inventory losses, violate (a) Business and Professions Code section 17200, (b) Labor Code sections 221, 400-410, or 3751, or (c) California Code of Regulations, title 8, section 11070? Prachasaisoradej v. Ralphs Grocery Company, Inc., S128576, formerly at 122 Cal.App.4th 29, review granted 12/15/04.
