California Employment Regulation Notes – March 2021 – Employment and HR

Trial Court Properly Dismissed
Employee’s CFRA And Disability Discrimination Claims

Choochagi v. Barracuda Networks, Inc., 60 Cal. App.
5th 444 (2021)

George Choochagi worked as a technical support manager for
Barracuda Networks where he reported to Hossein Ghazizadeh. 
Choochagi complained to HR that Ghazizadeh had made inappropriate
sexual comments to him about having sex with women at the office
and about Choochagi’s not being “man enough” for his
position.  Approximately 18 months after Choochagi transferred
to another supervisor, he began experiencing severe migraine
headaches and eye irritation, which required him to seek medical
treatment.  When Choochagi requested additional leave time,
Barracuda allegedly moved to terminate his employment or force him
to quit.  Choochagi sued for interference and retaliation
under the California Family Rights Act (CFRA), disability
discrimination, wrongful termination, retaliation, gender
discrimination and related claims.  The trial court granted
summary adjudication in favor of Barracuda on the CFRA and the
gender discrimination claims, and the remaining two claims
(disability discrimination and wrongful termination) went to trial
where the jury returned a verdict against Choochagi and in favor of

The Court of Appeal affirmed, holding that the trial court had
properly dismissed the CFRA claim because Choochagi did not submit
evidence that he requested additional time off due to his medical
condition or was denied such leave or that he was the victim of
illegal retaliation under the statute.  The Court also
affirmed dismissal of the FEHA retaliation claim on the ground that
there was no evidence that the decision makers regarding the
termination were aware of Choochagi’s HR complaint concerning
Ghazizadeh or that, under the “cat’s paw” theory, the
decision makers were “mere instrumentalities” of

LAUSD Teacher Can Proceed With Claim For Disability Allegedly
Caused By School’s Wi-Fi System

Brown v. Los Angeles Unified School Dist., 2021 WL
631030 (Cal. Ct. App. 2021)

Laurie Brown, a teacher at Millikan Middle School, alleged she
experienced chronic pain, which was allegedly caused by a new Wi-Fi
system the school had installed.  Brown’s medical provider
diagnosed her with “electromagnetic hypersensitivity
sensitivity” (EHS).  Brown eventually quit, claiming she
could not return to work “without being overcome with
crippling pain.”  Among other things, Brown alleged
discrimination based upon a physical disability, failure to
accommodate her disability, and retaliation.  The trial court
sustained the District’s demurrer to Brown’s complaint, but
the Court of Appeal reversed, holding that Brown had sufficiently
alleged a disability under the Fair Employment and Housing Act
(FEHA), even though at least two other (non-California) courts have
held that EHS is not a recognized disability under the federal
Americans with Disabilities Act (ADA).  The Court also held
that Brown had adequately alleged a cause of action for failure to
provide a reasonable accommodation for a physical disability. 
However, the appellate court agreed with the District that Brown
had failed to allege a failure to engage in the interactive process
or that any adverse action was taken against her with
discriminatory or retaliatory motive – in short, there was a
“disagreement between the parties as to whether the Wi-Fi was
causing her disability.”

In a stunningly candid concurring opinion, Justice John Shepard
Wiley Jr., expressed concern that this is the “first court in
the United States of America – a nation of over 300 million
people – to allow a claim that ‘Wi-Fi can make you
sick.'”  Justice Wiley continued:  “The law
worries about junk science in the courtroom.  One concern is
that a partisan expert witness can bamboozle a jury with a
commanding bearing, an engaging manner, and a theory that lacks
respectable scientific support…  It does not take much
experience as a trial judge in Los Angeles to realize the use of
expert witnesses has run riot.”  A potential
solution?  Justice Wiley suggests the use of court-appointed
experts pursuant to Cal. Evid. Code §§ 730-732 –
“few judges have tried this option, though, because the
parties never suggest it.”

Supreme Court Invalidates Rounding Time Punches For Meal

Donohue v. AMN Servs., LLC, 2021 WL 728871 (Cal. S.
Ct. 2021)

A unanimous California Supreme Court issued its long-awaited
decision in this case, answering two important questions about meal
periods:  (1) Employers cannot engage in the practice of
rounding time punches in the meal period context; and (2) time
records showing noncompliant meal periods raise a rebuttable
presumption of meal period violations, including at the summary
judgment stage.

The timekeeping system used by the employer rounded all employee
punch times to the nearest 10-minute increment—including
those reflecting meal periods.  As a result, for example, if
an employee punched out for lunch at 11:02 a.m. (rounded back to
11:00 a.m.) and punched back in at 11:25 a.m. (rounded forward to
11:30 a.m.), the system recorded a 30-minute meal period (even
though only 23 minutes had actually elapsed).  When an
employee’s rounded meal punches indicated that a meal was
missed, shorter than 30 minutes, or late (e.g., commencing after
more than five hours), the system provided a drop-down menu by
which an employee was asked to indicate either that the missed,
late, or short meal period was the result of:  (1) the
employee’s own choice; or (2) the press of work.  Only if
the employee selected the latter (press of work) would the employer
credit the employee with a meal premium of one additional hour of
pay at the regular rate of compensation.

While the Supreme Court recognized that time rounding was, in
general, permitted under federal law and prior California
decisions, it decided not to follow that authority in the case of
meal periods.  Instead, citing “health and safety
concerns” that underlie meal period requirements, the Court
distinguished “the meal period context from the wage
calculation context, in which the practice of rounding time punches
was developed” and noted that “even relatively minor
infringements on meal periods can cause substantial burdens to the
employee.”  In dicta, the Court took a swipe at prior
decisions that had endorsed rounding, in general, noting that,
“[a]s technology continues to evolve, the practical advantages
of rounding policies may diminish further.”

The Court went on to endorse a concurrence by Justice Werdegar
in Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th
1004 (2012), oft-cited by plaintiffs’ lawyers, in which she
suggested that if an employer’s records did not reflect a
compliant meal period, it would raise a rebuttable presumption that
none was provided.  However, the Court did provide helpful
clarification about how employers could overcome such a
presumption:  “by presenting evidence that employees were
compensated for noncompliant meal[s] … or that they had in fact
been provided compliant meal periods during which they chose to
work.”  And the Court reiterated its prior holding from
Brinker that an “employer is not liable if … [an] employee
chooses to take a short or delayed meal period or no meal period at
all” and affirmed there is no need “to police meals to
make sure no work is performed.”

Ninth Circuit Clarifies FMLA Leave For Rotational

Scalia v. State of Alaska, 985 F.3d 742 (9th Cir.

“Rotational employees” of the State of Alaska work a
regular schedule of seven days on, followed by seven days off of
work.  Under the Family and Medical Leave Act (FMLA), eligible
employees may take a total of “12 workweeks of
leave.”  The question in this case is whether both the on
and off weeks count toward the “12 workweeks of
leave.”  The U.S. Secretary of Labor (on behalf of the
state employees) alleged that the employees were entitled to 24
weeks of leave because a rotational employee’s off weeks should
not be counted as “workweeks of leave” under the
statute.  The district court granted summary judgment in favor
of the Secretary, but the Ninth Circuit reversed, holding that a
“workweek” does not revolve around an individual
employee’s own work schedule, it is instead simply a week-long
period designated in advance by the employer, during which the
employer is in operation.

Ninth Circuit Applies Dynamex Retroactively And Offers

Vazquez v. Jan-Pro Franchising Int’l, Inc., 986
F.3d 1106 (9th Cir 2021)

Following the California Supreme Court’s answer in the
affirmative to the certified question from the Ninth Circuit as to
the retroactive effect of Dynamex Ops. W. Inc. v. Superior
Court, 4 Cal. 5th 903 (2018), the Ninth Circuit in
this opinion amended and reissued its prior opinion and offered the
following “observations and guidance” on remand to the
district court:  (1) There is no “Patterson
gloss” to the ABC Test, meaning that the opinion in
Patterson v. Domino’s Pizza LLC, 60 Cal.
4th 474 (2014) (involving the absence of franchisor
liability for the alleged sexual assault of an employee of a
franchisee) has no application to the ABC test and wage/hour cases;
(2) Other courts have considered the three-tier franchise
structures in applying the ABC Test; and (3) Prong “B” of
the ABC Test (the one involving the question of whether the hiring
entity is engaged in the same usual course of business as the
worker) “may be the most susceptible to summary

California Law Applies To Flight Attendants’ Wage/Hour
Class Action

Bernstein v. Virgin Am., Inc., 2021 WL 686281 (9th
Cir. 2021)

Approximately 25% of Virgin’s flights were between airports
in California, and approximately 75% of Virgin’s flight took
off or landed at a non-California airport, but the vast majority of
those flights retained some connection to California (i.e., arrived
in or departed from an airport in California); members of the class
spent approximately 31.5% of their time working within
California’s borders.  Virgin disputed that it is subject
to California law, but did not contend that any other state’s
labor laws ought to apply to it either.  The district court
certified the class action and granted summary judgment to the
flight attendants as to most of their wage/hour claims against
Virgin.  The Ninth Circuit held that the dormant Commerce
Clause permits application of California labor law in the context
of this case.

The Court reversed the district court’s summary judgment in
favor of the flight attendants on their claims for minimum wage and
payment for all hours worked, but held that California overtime
rules did apply to the class and that the class’ meal and rest
claims were properly adjudicated in favor of the flight attendants,
as were their clams for wage statement violations and waiting time
penalties.  Finally, the Ninth Circuit held that Virgin was
not subject to the “heightened penalties” of the Private
Attorneys General Act (PAGA) because it was not notified by the
Labor Commissioner or any court that it was subject to the
California Labor Code until the district court partially granted
plaintiffs’ summary judgment motion in this case.  See
also Ward v. United Airlines, Inc., 986 F.3d 1234
(9th Cir. 2021) (federal law does not preclude
California from applying its wage statement law to airline pilots
and flight attendants); International Bhd. of Teamsters v.
Federal Motor Carrier Safety Admin., 986 F.3d 841
(9th Cir. 2021) (federal law preempts California meal
and rest break rules as applied to property-carrying commercial
motor vehicles).

PAGA Claim Venue Is ProperAnywhere Employer Committed

Crestwood Behavioral Health, Inc. v. Superior Court,
2021 WL 613700 (Cal. Ct. App. 2021)

In this writ proceeding the Court of Appeal determined that
venue is proper under the Private Attorneys General Act (PAGA) in
any county in which the employer allegedly committed Labor Code
violations – rather than only in the county where the
representative plaintiff was employed or the employer’s
principal place of business is located.  The Court
concluded:  “We see no reason why the Legislature would
restrict the proper venue to the location of an individual employee
when she is suing on behalf of all aggrieved employees, not
herself, and she has no individual claim.”

Per Diem Benefits Should Have Been Included As Compensation In
Calculating Overtime Rate

Clarke v. AMN Servs., LLC, 987 F.3d 848
(9th Cir. 2021)

Plaintiffs who worked as travelling clinicians for AMN (a
healthcare staffing company) were paid a weekly per diem benefit
for weeks in which they worked at facilities located more than 50
miles from their homes.  In this class action, plaintiffs
argued that the per diem benefits were improperly excluded from
their regular rate of pay under the Fair Labor Standards Act
(FLSA), thus decreasing their wage rate for overtime hours. 
The Ninth Circuit determined the per diem benefits functioned as
compensation for work rather than as reimbursement for expenses
incurred and, therefore, should have been included in
plaintiffs’ regular rate of pay for purposes of calculating
overtime pay.  Among other things, the Court relied on the
fact that AMN paid clinicians a per diem even for days they were
not working and allowed them to offset missed or incomplete shifts
with hours they had “banked.”

California Employment Law Notes – March 2021

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