December 18, 2009 | Posted by Young, Mike | Topic(s): Wage and Hour Laws , Wrongful Termination, Wage and Hour Litigation , Discrimination, Harassment, Retaliation, Employer Liability for Acts of Employees, FEHA and Other State Laws, Supervisor Liability, Employment Litigation
Part 3: The California Supremes Circa 2010
Pausing on our trip down memory lane, we take a quick peek around the corner at what the California Supreme Court will be soon be waxing so eloquently about. Here are this reporter’s favorites:
Shorten Those Pesky Statutes Of Limitations?: Why can’t employers simply impose an Armendariz-compliant arbitration requirement on their employees as a condition of employment, and (while they are at it) include a provision whereby the parties “agree” that the statute of limitations will be shortened to something less than that permitted by FEHA? Seems reasonable (if you are an employer), doesn’t it? The Supreme Court will help us with this when it rules in Pearson Dental Supplies, Inc. v. Superior Court (No. S167169.) The matter is fully briefed. (Check here for latest court update or to request automatic email notifications about the case.)
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December 11, 2009 | Posted by mike.young@alston.com | Topic(s): Workplace Privacy Issues, Wrongful Termination, Discrimination, Harassment, Retaliation, Employer Liability for Acts of Employees, FEHA and Other State Laws, Supervisor Liability, Class Actions, Employment Litigation
Part 2: The California Supremes
As promised, we continue our trip down memory lane by looking at some of the more significant California Supreme Court employment decisions in 2009. Don’t bother putting on your shoes, it’s a really short trip. In fact, in this reporter’s humble opinion, the 2010 journey will be much more interesting as there are a number of novel issues fully briefed just waiting for that splash of Supreme Court brilliance. For now, we look at employer spying, supervisor harassment, punitive damages, and the infamous 17200 unfair competition law.
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Now what has the California Supreme Court done to employment law here in the Golden State?
In Roby v. McKesson (S149752), the latest masterpiece from the state’s top court, it looks as if both employees and employers can claim a modicum of victory.
The employees will find it easier to assert and prove harassment claims against individual supervisors, which will make it easier to (a) defeat removal to federal court based on diversity jurisdiction; and (b) defeat summary judgment of harassment claims by individual supervisor defendants.
For the employers? The Court may be signaling further disenchantment with high punitive damages, particularly in cases involving high non-economic (emotional distress) damages where there is little evidence that upper management knew about the bad conduct.
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Wrongful termination, sexual harassment, discrimination and virtually every other employment-related claim begins with a turf war, a fight over which court will hear the case. Employee  plaintiffs prefer California state courts due to the generous scheduling and unfussy adherence to the rules. Out-of-state employer defendants want to remove to federal court on diversity grounds and pressure plaintiffs with tight deadlines and judges bent on strict compliance. DODGING FEDERAL COURT
In September 2008, the Daily Journal reported on a study published by the Harvard Law & Policy Review finding that plaintiffs’ lawyers handling employment discrimination claims are “increasingly trying to dodge federal courts.” For years, plaintiffs’ most potent weapon to avoid federal court was naming the plaintiff’s immediate supervisor as a defendant, destroying diversity. In order to successfully remove, defendants have to establish the supervisor as a “sham defendant” against whom no possible cause of action can be stated, a high hurdle. Federal courts, generally disfavoring diversity jurisdiction, are happy to remand state employment claims back down to the plaintiffs’ favored ground.
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 Can supervisors be held individually liable for being boorish (the closest legal term I could think of for “a**hole”) when most of that supervisor’s conduct is well within his or her employment duties? The California Supreme Court will be heading back to the workplace soon to address whether conduct that falls within the scope of the supervisor’s duty can nonetheless be considered in a “harassment” analysis. Click here for the appellate court opinion in Roby v. McKesson. Read More
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