UPDATES FOR CALIFORNIA EMPLOYERS – APRIL 2015

EMPLOYEE REFUSES TO WORK OT BECAUSE OF HIS RELIGION

In Copple v. CDC, plaintiff was an employee of the California Department of Corrections who was disciplined after refusing to work overtime.  Plaintiff’s reason for refusing to work overtime was that it interfered with his practice of his religion, Sun Worshiping Atheism.  After being disciplined, plaintiff sued the Department of Corrections for religious discrimination.  The trial court granted summary judgment in favor of plaintiff’s employer, and the Court of Appeal affirmed.  In its decision, the Court of Appeal found that Sun Worshiping Atheism, like veganism, does not express a full set of beliefs, and does not utilize rituals, services, or holy days.  The Court of Appeal therefore found that Sun Worshiping Atheism was merely plaintiff’s personal philosophy that did not rise to the level of a religion.  Therefore, the California Department of Corrections did not discriminate against plaintiff based on any purported religious beliefs.

MASSAGE THERAPIST SUES FOR SEXUAL HARASSMENT

In Dickson v. Burke Williams, Inc., plaintiff was a massage therapist at Burke Williams who sued her employer for alleged sexual harassment and discrimination by two customers.  Plaintiff also asserted that her employer had failed to prevent the sexual harassment and discrimination.  After trial, a jury found that Burke Williams was not liable for sexual harassment or discrimination.  However, the jury did find that Burke Williams was liable for failure to prevent sexual harassment and discrimination.  Burke Williams asked the trial court to set aside the jury verdict, but the court declined to do so, and Burke Williams appealed.  Burke Williams argued that since the jury had found that it was not liable to plaintiff for sexual harassment and discrimination, it could not legally be liable to plaintiff for failure to prevent sexual harassment and discrimination.  The Court of Appeal agreed with Burke Williams.  An employer cannot be held liable for purported failure to prevent sexual harassment or discrimination if there is no actionable harassment or discrimination in the first place.

IS YOUR ARBITRATION AGREEMENT ENFORCEABLE?

In Securitas Security Services USA, Inc. v. Superior Court, the plaintiff was an employee who was offered a voluntary arbitration agreement by her employer.  In this case, all employees were given the option to call a toll free number to opt out of the arbitration agreement.  If the employees did not opt out of the arbitration agreement within 30 days, they became bound by the agreement to arbitrate any and all employment disputes.  The arbitration agreement also contained a class action and representative action waiver (PAGA waiver), stating that the parties waived any right to bring a class or representative action.  Plaintiff sued her employer in state court, filing both individual and class and representative claims.  The employer moved to compel arbitration of plaintiff’s individual claims.  The trial court granted the employer’s motion to compel arbitration, but ordered that both plaintiff’s individual and class and representative claims should be arbitrated.  However, the Court of Appeal held that both plaintiff’s individual and class and representative claims should not have been ordered to arbitration.  The Court of Appeal found that the representative action waiver in the arbitration agreement was unenforceable, and that the employee’s ability to opt out of the arbitration agreement did not save the unenforceable provision.  Since there was a provision in the arbitration agreement stating that the representative action waiver was not severable from the rest of the arbitration agreement, the Court of Appeal found that the entire arbitration agreement was unenforceable.