Employment Law
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Motion to Compel Arbitration
The FAA provides, that a "written provision in any...contract evidencing a transaction involving commerce to settle by arbitration a controversy...shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of the contract." 9 U.S.C. § 2. In order to opt out of the FAA, a controlling state arbitration law must be specified in the agreement. See, e.g. Wolsey, Ltd. v. Foodmaker, Inc., 144 F.3d 1205, 1209 (9th Cir. 1998) ("In other words, parties are free to contract around the FAA by incorporating state arbitration rules into their agreements.").
Unlawful Termination in California: Whistleblowing and Disability
It is the public policy of California that workers not be fired based on their disability, because they have reported illegal activity, or because they have refused to participate in illegal activity.California Labor Code section 1102.5(b) prohibits an employer from retaliating against an employee for reporting to a government agency any activities that he reasonably believes to violate a state or federal statute. Labor Code §1102.5 further prohibits retaliation for refusing to participate in any action that would lead to the violation of any state or federal statute. It is illegal to perform contracting work in California without a license (See, e.g. Bus. & Prof. Code§7028). Insurance Fraud is a crime under both Federal and State law (18 U.S.C. §§1341, 1343; Cal. Ins. Code §§1871, et seq.).
Obtaining Independent Testimony in Employment Discrimination Cases
California Code of Civil Procedure section 2025.420 subdivision (b) provides that “the court, for good cause shown, may make any order that justice requires to protect any party…from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.” Code Civ. Proc. § 2025.420(b)(12) expressly authorizes the court to exclude from a deposition “designated persons, other than the parties to the action and their officers and counsel.”
The Importance of Independent Testimony
California Code of Civil Procedure section 2025.420 subdivision (b) provides that, "the court, for good cause shown, may make any order that justice requires to protect any party... from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." Code Civ. Proc. § 2025.420 (b)(12) expressly authorizes the court to exclude from a deposition "designated persons, other than the parties to the action and their officers and counsel."
Wrongful Termination and Reasonable Accommodations Under the Americans with Disabilities Act
Wrongful termination from employment is tortious when the termination occurs in violation of a fundamental public policy. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090. A policy is “fundamental” when it is “carefully tethered” to a policy “delineated in constitutional or statutory provisions” (id. at p. 1095), involves a duty affecting the public at large, rather than one owed to or imposed solely upon the parties to a dispute (id. at 1090), and is “well established” and “sufficiently clear” to the employer at the time of the discharge. Id. Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238, 1256 (1994). However, as noted in Soules v. Cadam, Inc. 2 Cal.App.4th 390, 401 (1991), an action for tortious discharge is not strictly limited to these situations but will lie “wherever the basis of the discharge contravenes a fundamental public policy.”
Wrongful Termination, Whistleblower Retaliation, and Disability Discrimination
Wrongful termination from employment is tortious when the termination occurs in violation of a fundamental public policy. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083, 1090. A policy is “fundamental” when it is “carefully tethered” to a policy “delineated in constitutional or statutory provisions” (id. at p. 1095), involves a duty affecting the public at large, rather than one owed to or imposed solely upon the parties to a dispute (id. at 1090), and is “well established” and “sufficiently clear” to the employer at the time of the discharge. Id. Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238, 1256 (1994). However, as noted in Soules v. Cadam, Inc. 2 Cal.App.4th 390, 401 (1991), an action for tortious discharge is not strictly limited to these situations but will lie “wherever the basis of the discharge contravenes a fundamental public policy.”
Wrongful Termination and Disability Discrimination
Wrongful termination from employment is tortious when the termination occurs in violation of a fundamental public policy. Gantt v. Sentry Insurance (1992) 1 Cal.4th 1082, 1090. A policy is “fundamental” when it is “carefully tethered” to a policy “delineated in constitutional or statutory provisions” (id. at p. 1095), involves a duty affecting the public at large, rather than one owed to or imposed solely upon the parties to a dispute (id. at 1090), and is “well established” and “sufficiently clear” to the employer at the time of the discharge. Id. Wrongful termination cases typically arise when an employer retaliates against an employee for refusing to violate a statute, performing a statutory obligation, exercising a statutory right, or reporting an alleged violation of a statute of public importance. Turner v. Anheuser-Busch, Inc. 7 Cal.4th 1238, 1256 (1994). However, as noted in Soules v. Cadam, Inc. 2 Cal.App.4th 360, 201 (1991), an action for tortious discharge is not strictly limited to these situations but will lie “wherever the basis of the discharge contravenes a fundamental public policy.”
Establishing Discriminatory Motive
California has adopted the three-stage burden-shifting test established by the United States Supreme Court in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 for trying claims of discrimination. Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354. The so-called “McDonnell Douglas” test “reflects the principle that direct evidence of intentional discrimination is rare, and that such claims must usually be proved circumstantially.” Id. The first step in the test is for Gonzales to establish a prima facie case of discrimination. The particular elements of a prima facie case “may vary depending on the particular facts.” Id.
Title VII and Race Discrimination
Title VII of the Civil Rights Act of 1964 (United States Code, title 42, section 2000e et seq.) makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race . . . .” The standard for summary judgment in discrimination cases under Title VII is the burden shifting test outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Some Notes on Awarding Attorney Fees in California
California Code of Civil Procedure section 1038 allows a public entity defendant to recover defense costs upon prevailing against a legal action, but only where the plaintiff brought or maintained he action in bad faith or without reasonable cause. A determination of good faith involves a factual inquiry into the plaintiff’s state of mind. Bosetti v. U.S. Life Ins. Co. in City of New York (App. 2 Dist. 2009) 175 Cal.App.4th 1208. Reasonable cause is determined by (1) analyzing the facts known to the plaintiff when he or she filed or maintained the action and (2) determining whether any reasonable attorney would have thought the claim tenable. Smith v. Selma Community Hosp. (App. 5 Dist. 2010) 188 Cal.App.4th 1, review denied. A defendant may not recover costs simply because it won a summary judgement or other dispositive motion; victory does not per se indicate lack of reasonable cause. Laabs v. City of Victorville (App. 4 Dist. 2008) 163 Cal.App.4th 1242.