I'll try to do better. Sometimes I think this blog has run its course, but then I get a meaningful piece of hate mail and my faith is restored.
Don't worry, you can catch up on all of the year's significant decisions at our upcoming legal update, which you can attend in person or via a convenient webinar.
Here are two recent employment law opinions of note, briefly summarized -
Class Action - No Precertification Discovery to Find New Plaintiff When Original Plaintiff Had No Case.
The plaintiff alleged that CVS has a policy under which it automatically terminates employment of those who perform no work for 45 consecutive days. (It seems unlikely that such a policy would exist without containing any exceptions, given the need for FMLA/ CFRA / PDL leave).
The problem is that the plaintiff herself did not miss 45 days of work and was not fired under that policy. She was dismissed for lack of standing.
But the plaintiff's attorneys tried to obtain discovery of all the names and addresses of everyone fired under the alleged policy, despite the lack of a viable client.
There is case law allowing the search for a new plaintiff in class action cases, but only when the original plaintiff had some sort of viable case. Here, the court of appeal was having none of it:
Deluca was never a member of the class she sought to represent. She does not claim a disability and CVS did not terminate her. We are hard pressed to explain why the trial court stated it “does not find that Deluca or her counsel had no reasonable, good faith belief that she lacked standing when the suit was initiated.” * * * *
Class actions rest on considerations of equity and justice. Based on the facts before us, and applying the Parris test, we find the actual or potential abuse of the class action procedure outweighs the potential benefits that might be gained. Therefore, the trial court abused its discretion in allowing the proposed precertification discovery.This case is CVS Pharmacy, Inc. v. Superior Court and the opinion is here.
Retaliation Claims Under Lab. Code Section 1102.5(b) Are Independent from Common Law Wrongful Termination (Tameny) Claims
The plaintiff in Cardenas v. Fanaian, DDS was a nurse who lost her wedding ring at work. She filed a police report. The dentist / practice owner objected and fired the nurse. She sued under Labor Code section 1102.5, which prohibits retaliation against employees who report illegal conduct to law enforcement. She also sued for wrongful termination in violation of public policy. The jury awarded her damages.
On appeal, the defense lawyers mishandled the arguments according to the court of appeal. However, the court decided NOT to rule on the applicability of the wrongful termination claim. There was a good argument that her "complaint" that someone stole her ring was not a "public" policy issue.
On the statutory claim, though, you can't fire someone for going to the police about a co-worker:
So, this case is significant because section 1102.5 does not require reports about the employer's wrongdoing pertaining to business issues. Rather, the law prohibits retaliation even if the employee makes a report to the government about something entirely unrelated to the employer.
The special verdict findings bring this case squarely within the parameters of section 1102.5. The jury determined that Cardenas reported a workplace theft of her property to the police. Theft is a violation of the law. (Pen. Code, § 484.) The jury found that she was subsequently terminated from her employment and that her report to the police was a motivating reason for her termination. Thus, she engaged in protected activity, was subjected to an adverse employment action and there was a causal link between the two. (McVeigh, supra, 213 Cal.App.4th at p. 468.) She met all of the statutory elements of a claim under section 1102.5. She was not required to prove anything more.
The opinion in Cardenas v. Fanaian is here.
