Cal-Peculiarities: How California Employment Law is Different 2022 Edition

64 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com 7 Barbee v. Household Auto. Finance Co. , 113 Cal. App. 4th 525, 535 (2003) (supervisor could be terminated for violating company policy against dating subordinates; Labor Code section 96(k) does not describe any public policy but rather “simply outlines the types of claims over which the Labor Commissioner shall exercise jurisdiction”). 8 Grinzi v. San Diego Hospice Corp. , 120 Cal. App. 4th 72, 84-86 (2004) (case manager fired on suspicion of participating in Ponzi scheme has no public policy claim for wrongful termination based on first amendment of Constitution or on Labor Code sections 96(k) or 98.6). 9 Health & Safety Code § 11362.1 (“it shall be lawful under state and local law” for persons at least age 21 to use cannabis up to certain quantities for certain purposes). 10 Health & Safety Code § 11362.45(f) (Section 11362.1 does not affect “[t]he rights … of public and private employers to maintain a drug and alcohol free workplace or require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growth of cannabis in the workplace, or affect the ability of employers to have policies prohibiting the use of cannabis by employees and prospective employees, or prevent employers from complying with state or federal law”). See also § 14.7 (California employers can deny employment to users of medical marijuana, notwithstanding the 1996 Compassionate Use Act). 11 Assembly Bill 1256, introduced on February 19, 2021, was aimed at prohibiting an employer, subject to exemptions, from discriminating against a person in the hiring, termination, or any term or condition of employment because a drug test revealed the presence of THC. The bill was not passed in the State Assembly. 12 Lab. Code § 232. 13 E.g., Grant-Burton v. Covenant Care, Inc. , 99 Cal. App. 4th 1361, 1376-77 (2002) (upholding wrongful termination claim of employee fired after telling co-workers she had not received bonus because her supervisor did not believe in them; Labor Code section 232, protecting disclosure of “wages,” covers bonuses). 14 Labor Code § 1197.5(k)(1). 15 Lab. Code § 232.5. 16 Davis v. O’Melveny & Myers , 485 F.3d 1066, 1079 & n.5 (9th Cir. 2007). 17 Luke v. Collotype Labels USA, Inc. , 159 Cal. App. 4th 1463 (2008) (federal labor law preempts claim for wrongful termination in violation of public policy stated in Labor Code sections 232.5 and 923). 18 Banner Health Sys. dba Banner Estrella Med. Ctr ., 362 NLRB No. 137 (2012). This Obama Board ruling created a rare, albeit temporary, example of federal law being more hostile to employers than California law. Except a similar ruling now that we have a Biden Board. 19 Compare Apogee Retail LLC , 368 NLRB No. 144 (Dec. 16, 2019 ) (employer rule requiring investigative confidentiality during investigation did not violate Section 7 of the NLRA) with Silva v. Lucky Stores, Inc. , 65 Cal. App. 4th 256, 265 (1998) (employer’s investigation policy was appropriate in part because the policy ensured confidentiality). 20 Gov’t Code § 12964.5(a)(1)(B)(ii). 21 Gov’t Code § 12964.5(a)(2). 22 Lab. Code § 923. 23 Montavio v. Zamora , 7 Cal. App. 3d 69, 75 (1970) (“We believe it to be within the intent and scope of the statute, by implication, though not expressly declared, that the individual employee has the right to designate an attorney or other individual to represent him in negotiating terms and conditions of his employment, and that his discharge for so doing constitutes a violation of Labor Code, section 923.”); Gelini v. Tishgart , 77 Cal. App. 4th 219 (1999) (employer violated Section 923 by firing employee because her lawyer wrote employer to request better hours and parental leave). See also Santillan v. USA Waste of California, Inc., 853 F.3d 1035, 1047 (9th Cir. 2017) (employee designating attorney to represent him in negotiating employment terms is a protected activity that supports a claim for wrongful termination in violation of public policy). 24 Claudio v. Regents of the Univ. of California , 134 Cal. App. 4th 224, 247-48 (2005). 25 TRW, Inc. v. Superior Court , 25 Cal. App. 4th 1834 (1994) (defense contractor could fire employee for refusing, in absence of counsel, to cooperate in investigation of possible security breaches; no Fifth Amendment right against self-incrimination applied as there was no government action and no “custodial interrogation by law enforcement”), cert. denied, 513 U.S. 1151 (1995); Robinson v. Hewlett Packard , 183 Cal. App. 3d 1108 (1986) (employer could fire employee for refusing to meet alone, without his lawyer, to attend performance evaluation). 26 Labor Code §§ 98.6, 1102.5, and 6310. 27 Lab. Code § 1102.5; Holmes v. Gen. Dynamics Corp. , 17 Cal. App. 4th 1418, 1433 (1993) (affirming jury verdict for plaintiff fired for reporting company violations of federal False Statements Act); Collier v. Superior Court (MCA, Inc.) , 228 Cal. App. 3d 1117, 1124-27 (1991) (plaintiff allegedly fired for telling upper management that other employees might be engaged in embezzlement and violations of federal antitrust laws). 28 McVeigh v. Recology San Francisco , 213 Cal. App. 4th 443, 471 (2013) (Section 1102.5 “protects employee reports of unlawful activity by third parties such as contractors and employees, as well unlawful activity by an employer.”). 29 Id. at 469 (“An employee’s report of illegal activity can … constitute protected conduct under [Section 1102.5(b)] even if she ‘was simply doing her job’ in making the report.”). 30 Lab. Code § 1102.5(a), (b) (law protects not only reports to “a government or law enforcement agency,” but also reports “to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance”). 31 Hager v. Cnty. of Los Angeles, 228 Cal. App. 4th 1538, 1541, 1548 (2014) (rejecting defendant’s argument that plaintiff did not “disclose information” where suspicions of unlawful conduct had already been reported by others). 32 Lab. Code § 1102.5(b).