Nineteen former employees who signed releases after being terminated in a RIF and who did not file EEOC charges may proceed in joining the class bringing ADA claims against their former employer. The plaintiffs alleged the waivers were invalid under the Older Workers Benefit Protection Act (“OWBPA”) because they misrepresented the number of employees selected for termination, failed to accurately list those selected for termination, were not written in a manner reasonably calculated to be understood by the average employee, and did not disclose the criterion used to select employees for termination. The plaintiffs also claimed they were not given the requisite 45 days to decide whether to sign. If the plaintiffs’ allegations were true, the waivers would be invalid; therefore the court denied the employer’s motion to dismiss based on valid waivers. The fact that nineteen employees did not file claims with the EEOC also was not a bar. Those employees may properly “piggyback” on the timely filed charges of two other plaintiffs who alleged classwide discrimination. Such charges gave sufficient notice to the employer of the classwide discrimination claims alleged in the complaint.

In Bernard v. State Farm Mutual Automobile Insurance, plaintiff sued his employer for constructive discharge and "breach of covenant of good faith and fair dealing," claiming it misrepresented its sales program requirements. Plaintiff claimed the company had a termination for cause only policy. However, he had signed the following at will agreement: "You or State Farm have the right to terminate this Agreement by written notice delivered to the other or mailed to the other’s last known address." The termination provision also provided for termination upon specified notice. The court found that this provision negated any arguments that the company needed good cause for termination.

Plaintiff Varisco was certified by the California Division of the State Architect (“DSA”) as a Class-1 Inspector. On January 30, 2004, Gateway Science entered into a written agreement with Varisco which stated that Gateway Science would pay Varisco for providing DSA Inspection Services to the Los Angeles Unified School District. In November of 2004, Gateway Science sent Varisco a letter terminating the relationship because Varisco refused to sign a new contract with Gateway Science, and refused to provide Gateway Science with various documents that it requested. Varisco sued Gateway Science for damages under various theories, arguing that he had actually been an employee instead of an independent contractor.

 

Continue Reading “At Will” Clause in a Contract for Services Does Not Mean the Worker is an Employee: Varisco v. Gateway Science and Engineering, Inc.

Introduced in September by Barack Obama, SB 2044 places stricter requirements on who can be classified as an independent contractor rather than an employee. If independent contractors are moved into the category of employees, employers will be required to pay higher taxes on those individuals. Additionally, such legislation would increase potential liability concerns for employers. The legislation is still pending.

The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership ruled that individuals may not be held personally liable for retaliation claims under the FEHA.

If you read the FEHA, section 12940(h) makes it unlawful for any “employer, labor organization, employment agency, or person” to retaliate against an employee. Read literally, this would appear to impose individual liability on a “person” who retaliates. California intermediate appellate courts have wrestled with the issue for years. However, in a decision split 4 to 3 among the justices, the California Supreme Court has finally decided the matter.

As outlet manager, Jones was responsible for the restaurant, bar, catering and banquet events, and the beverage cart service to golfers on the golf course. In October 2000, The Lodge hired a new beverage director, Jean Weiss. That is when the alleged problems began. Weiss and the kitchen manager developed a habit of telling jokes and making sexual remarks about women and employees known as “cart girls.” They also made fun of Jones’ sexual orientation. Jones complained about this treatment. Jones alleged that Weiss became hostile and threatened to fire Jones if he reported the matter to human resources. Jones did complaint to the HR manager and Weiss subsequently retaliated by writing him up for a laundry list of performance problems. Finally, Jones filed a DFEH complaint, resigned, and sued for sexual orientation discrimination against his employer and for retaliation against his employer and his supervisor, Weiss, individually.
Continue Reading California Supreme Court: No Individual Liability for Retaliation under FEHA: Jones v. The Lodge at Torrey Pines Partnership