UPDATES FOR CALIFORNIA EMPLOYERS – JULY 2015

Protected Speech at Work

In Turner v. City and County of San Francisco, the plaintiff, Turner, sued his employer, the City and County of San Francisco (the “City”) for wrongful termination in violation of public policy. Plaintiff alleged that he had been wrongfully retaliated against because he had complained that the City improperly employed him as a temporary exempt employee, rather than a permanent civil service employee. The district court dismissed the case, finding that plaintiff had failed to state a claim for retaliation under the First Amendment. The court found that plaintiff had not alleged facts demonstrating that he had engaged in protected speech. The Ninth Circuit Court of Appeal affirmed, holding that plaintiff’s complaints were not protected by the First Amendment because they did not address “a matter of public concern.” The Ninth Circuit explained that, while plaintiff’s complaint could have invoked a matter of public concern, plaintiff’s complaint was actually focused on and driven by his internal grievance, and therefore, arose primarily out of his concerns for his own status of employment.

Employer Supervised Bathroom Drug Tests

In Aro v. Legal Recovery Law Offices, Inc., plaintiffs were required by the employer, along with all other employees, to take a drug test in a public bathroom. Plaintiffs resisted, and were told that they would be suspended and sent home. Thereafter, plaintiffs agreed to the drug test. During the test, plaintiffs were watched in the bathroom. Plaintiffs sued their employer for breach of the implied covenant of good faith and fair dealing, as well as other claims. The trial judge awarded plaintiffs $15,000 each for non-economic damages. On appeal, the Court of Appeal affirmed. The court found that the employer’s conduct was sufficiently extreme such as to constitute an intentional infliction of emotional distress. First, there was not ample notice of the drug test to employees. There was also not any suspicion of drug use by plaintiffs. Plaintiffs were threatened with suspension when they resisted the drug test. Lastly, plaintiffs had testified that the drug test had caused them to suffer anxiety and humiliation. Accordingly, the court found that the award in favor of plaintiffs was proper.

Reimbursement of Litigation Costs Unsuccessful in a FEHA Action

In Williams v. Chino Valley Independent Fire District, the court held that the Fair Employment and Housing Act (“FEHA”) is an exception to Code of Civil Procedure 1032, and accordingly, defendants who seek reimbursement of ordinary litigation costs as against unsuccessful plaintiffs in a FEHA action must first show that the “plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.” Prior to Williams v. Chino Valley Independent Fire District, defendants were required to meet a heightened burden when seeking attorney fees from unsuccessful plaintiffs in a FEHA action; however, the issue of whether the heightened burden also applied to ordinary costs was still undecided. After Williams v. Chino Valley Independent Fire District, it is now clear that defendants must also meet a heightened burden when seeking ordinary costs from unsuccessful plaintiffs in a FEHA action.