Sheridan v. Touchstone: Employee Need Not Exhaust Administrative Remedies Before Filing Labor Code Section 6310 Retaliation Claim

Sheridan v. Touchstone Television Productions, LLC (Cal.App. 10/20/15) is clearly and concisely written, and I will quote from it liberally. 

Touchstone Television Productions (Touchstone) hired actress Nicollette Sheridan to appear in the television series Desperate Housewives, a show created by Marc Cherry. Sheridan sued Touchstone under Labor Code section 6310, alleging that Touchstone fired her in retaliation for her complaint about a battery allegedly committed on her by Cherry. The trial court sustained Touchstone’s demurrer to the complaint on the basis that Sheridan failed to exhaust her administrative remedies by filing a claim with the Labor Commissioner. The sole issue on appeal is whether Sheridan was required to exhaust her administrative remedies under sections 98.7 and 6312. We conclude that she was not required to do so and therefore reverse.

The Court reasoned as follows:

The plain language of [Labor Code] sections 6312 and 98.7 before the 2013 amendments did not require exhaustion. Both stated that a person who believed that he or she had been discriminated against in violation of the relevant Labor Code provisions “may,” not “shall,” file a complaint with the Labor Commissioner or the Division of Labor Standards Enforcement... Thus, a straightforward reading of the statutes establishes an administrative claim is permitted, but not required. 

***  

Given that exhaustion was not required under the pre-2013 versions of sections 6312 and 98.7, the 2013 enactment of section 244, subdivision (a) and section 98.7, subdivision (g), merely clarified existing law.

As a result, the Court did not consider arguments regarding the statutes' retroactivity. 

The opinion is here.

Miranda v. Anderson Enterprises: "Death Knell" Doctrine Allows Immediate Appeal from Order Dismissing PAGA Allegations

In Miranda v. Anderson Enterprises, Inc. (Cal.App. 10/15/15), the plaintiff filed a class and PAGA representative action against the defendant. The defendant petitioned to compel individual arbitration, dismiss the class and PAGA claims, and stay the trial court proceedings. The trial court granted the petition, and the plaintiff appealed that part of the order relating to his PAGA claims.

In the published portion of the decision, the Court of Appeal held that the death knell doctrine gave the plaintiff right to appeal an immediate appeal from the trial court's order dismissing the PAGA allegations. 

As an initial matter, respondents contend the trial court’s order is not presently appealable. “Orders granting motions to compel arbitration are generally not immediately appealable.” Appellant argues his appeal falls within the death knell exception, which “provides that an order which allows a plaintiff to pursue individual claims, but prevents the plaintiff from maintaining the claims as a class action, . . . is immediately appealable because it ‘effectively r[ings] the death knell for the class claims.’ ” Appealability under the death knell doctrine requires “an order that (1) amounts to a de facto final judgment for absent plaintiffs, under circumstances where (2) the persistence of viable but perhaps de minimis individual plaintiff claims creates a risk no formal final judgment will ever be entered.” 

The Court held that PAGA actions are analogous to class actions for purposes of applying the death knell doctrine, and the plaintiff could appeal from the order dismissing his PAGA action.

The opinion is available here.

Prue v. Brady Company: Plaintiff Sufficiently Alleged Wrongful Termination in Violation of the Public Policy against Disability Discrimination

In Prue v. Brady Company/San Diego, Inc. (Cal.App. 11/17/15), the plaintiff sued the defendant for wrongful termination in violation of public policy, alleging that the defendant terminated him after he suffered a work-related injury. The trial court granted summary judgment for the defendant, and the Court of Appeal reversed, holding as follows:

"Because the gist of Brady's motion was not the absence of disputed material facts but was instead whether Prue's complaint alleged sufficient facts to state a cause of action, its motion for summary judgment was, in effect, a motion for judgment on the pleadings."

The complaint "sufficiently alleged essential facts to inform Brady that [Prue] was alleging a common law cause of action for wrongful termination in violation of FEHA's public policy against disability discrimination." The complaint alleged: "(1) Prue suffered from a disability (i.e., a musculoskeletal injury); (2) he was capable of performing the essential functions of his position; (3) he was subjected to an adverse employment action (i.e., termination of his employment) because of his disability; and (4) Brady knew of his disability when it decided to terminate his employment."

The complaint did not allege only a violation of Labor Code section 132a, which prohibits retaliation against an employee who files a worker's compensation claim.

The one-year statute of limitations for violations of the Fair Employment and Housing Act (FEHA) does not apply to a common law claim for wrongful termination. Instead, the two-year limitations period under Code of Civil Procedure section 335.1 applies.

If the complaint had not adequately alleged the wrongful termination claim, the trial court would have abused its discretion in rejecting Prue's request for leave to amend.

The opinion is available here. 

Governor Vetoes Employment Arbitration Bill

I wrote recently in the Daily Journal ("Does the FAA cover your agreement?") about AB 465 (Legislative Counsel's Digest here), which would have enacted Labor Code section 925, providing, inter alia, as follows:

No person may require another person, as a condition of employment, to agree to the waiver of any legal right, penalty, forum, or procedure for any employment law violations; no person may threaten, retaliate, or discriminate against another person based on a refusal to agree to such waiver; any such waiver required as a condition of employment or continued employment is unconscionable, against public policy, and unenforceable; any waiver of a person’s employment rights must be knowing, voluntary, in writing, and expressly not made as a condition of employment.

Governor Brown vetoed AB 465 on October 11. His veto message is here.

New Law Adds Gender Identity Protection in Public Contracts

On October 7, 2015, Governor Brown signed Senate Bill 703, enacting section Public Contracts Code section 10295.35, which provides that state agencies "shall not enter into any contract for the acquisition of goods or services in the amount of one hundred thousand dollars ($100,000) or more with a contractor that, in the provision of benefits, discriminates between employees on the basis of an employee’s or dependent’s actual or perceived gender identity, including, but not limited to, the employee’s or dependent’s identification as transgender."

Legislative Counsel's Digest is available here. 

Valencia v. SCIS: Federal Airline Deregulation Act Does Not Preempt Meal and Rest Period Claims

In Valencia v. SCIS Air Security Corporation (10/16/15) --- Cal.App.4th ---, the defendant, SCIS, provided security services to airlines for their in-flight catering operations. The plaintiff, a former SCIS employee, filed a putative class action against SCIS, alleging failure to provide meal and rest periods, along with other wage and hour violations. The trial court granted SCIS's motion for summary adjudication in part, holding that the plaintiff's claims for missed meal and rest periods were preempted by the federal Airline Deregulation Act (ADA). The Court of Appeal reversed, holding as follows:

The ADA does not preempt the plaintiff's meal and rest period claims. The Court distinguished Northwest, Inc. v. Ginsberg (2014) __ U.S. __, 134 S.Ct. 1422, 1428 (ADA preempts customer's claim that airline violated state contract law by canceling frequent flyer program). 

Instead, this case is analogous to People ex rel. Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772 (discussed here) (Federal Aviation Administration Authorization Act of 1994 (FAAAA) does not preempt Unfair Competition Law (UCL) claims based on alleged independent contractor misclassification) and Dilts v. Penske Logistics, LLC (9th Cir. 2014) 769 F.3d 637 (discussed here) (FAAAA does not preempt truck drivers' meal and rest period claims). ADA and FAAAA use the same statutory preemption language, and precedent in one is instructive for the other.

The court remanded for reconsideration of the plaintiff's motion for class certification.

The opinion is available here.