2005-1

Labor Code Section 6310 Applies to Employers Who Retaliate Against Employees Whom They Believe Intend to File Workplace Safety Complaints.

In the context of a retaliation claim under Cal-OSHA (Cal. Lab. Code § 6310), the Court of Appeal has held that the termination of an employee suspected of planning to file workplace safety complaints is a preemptive retaliatory firing. (Lujan v. Minagar, 2004 DJDAR 14621 (Cal. App. December 9, 2004) (2nd App. Dist., Div. 8) (opinion by Rubin, J., joined by Cooper, P.J. and Boland, J.).

Noelle Dianella ("Dianella") was a stylist at a salon owned by Defendant Shala Minagar ("Minagar"). Minagar's shop was cited for several workplace safety violations pursuant to an inspection which was initiated by a complaint by Susan Grana, a facialist at the salon. In response, Minagar fired Grana and Dianella. The Labor Commissioner cited Minegar for firing Dianella in retaliation for the Cal-OSHA complaint. Minegar's appeal to the Department of Industrial Relations was rejected and Minegar was ordered to rehire Dianella with back pay. When Minegar refused, the Commissioner sued to enforce the order. At trial, Grana and Dianella both testified that Dianella played no part in contacting Cal-OSHA inspectors. Dianella also testified that the salon manager told her that she had been fired based upon the suspicion that she had assisted Grana with her complaint. Although Minegar claimed that Dianella was fired because she was an incompetent and troublesome employee, she admitted that she was afraid that Dianella would be the next one to report her.

Minegar moved to dismiss on two grounds: (a) that Dianella was an independent contractor, not an employee protected by Cal-OSHA; and (b) that Dianella had not made any complaint with Cal-OSHA. The trial court found that Dianella was an employee but dismissed the action on the ground that the jurisdictional requirements for Labor Code section 6310 had not been satisfied because Dianella did not make a complaint to Cal-OSHA.

The Court of Appeal reversed and remanded with directions to enter a judgment in favor of the Labor Commissioner, including a determination of the amount of damages. The Court of Appeal held that "section 6310 applies to employers who retaliate against employees whom they believe intend to file workplace safety complaints." The Court explained that:

"To hold otherwise would create a perverse incentive for employers to retaliate against employees who they fear are about to file workplace safety complaints before the employees can do so, therefore avoiding liability under section 6310. We do not believe the Legislature could have possibly intended such an absurd result, which could be depicted by an image of an employer following an employee and firing him or her just before the employee reached the Cal-OSHA filing window, complaint in hand."

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A Serious Health Condition Which Renders an Employee "Unable to Perform the Functions of the Positions of that Employee" is not Employer-Specific and Must be Construed to Mean an Inability to Perform the Essential Job Functions Generally

The Court of Appeal has held that the test whether an employee's health condition "makes the employee unable to perform the functions of the position of that employee" must be construed to mean an inability to perform the essential job functions generally, rather than for a specific employer. (Lonicki v. Sutter Health Central, 2004 DJDAR 14701 (Cal.App. December 10, 2004 (3rd App. Dist.) (opinion by Scotland, P.J., joined by Nicholson, J., dissenting opinion by Morrison, J.).

Plaintiff Antonia Lonicki ("Lonicki") was employed by Defendant Sutter Health Central ("Sutter") and requested a medical leave of absence. Sutter filed a motion for summary judgment, arguing that Lonicki was unable to perform the functions of her position because she successfully performed the very same functions for another employer during the same period of time she claimed a right to a medical leave from Sutter. Lonicki argued that the legal standard must be employer-specific; the fact that she was performing the functions of her job for another employer should not preclude her from being entitled to a medical leave of absence from Sutter. The trial court granted the motion for summary judgment.

To qualify for a medical leave under Moore-Brown-Roberti Family Rights Act (CalFRA), the Court of Appeal explained that an employee must suffer from a "serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth or related medical conditions." The Court explained that the DFEH has provided that this means that the employee is either unable to work at all or unable to perform any one or more of the essential functions of the position of that employee. It was undisputed that Lonicki performed the essential functions of the same job for her other employer. Lonicki testified at deposition that she did not have a problem with her work and thought she could have returned to work for Sutter if it had changed the working conditions to suit her.

The Court of Appeal affirmed the grant of summary judgment in favor of Sutter:

"[Lonicki] was not unable to perform the essential functions of her job; rather, she was unwilling to do so for Sutter. Therefore, her claim of selective disability did not entitle her to leave under CalFRA."

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A Restrictive Definition of Employment May Limit the Scope of an Arbitration Clause and Preclude Arbitration of Pre-Employment Claims.

In the context of a trial court's denial of a petition to compel arbitration, the Court of Appeal has held that an employer's restrictive definition of employment precludes the employer from compelling arbitration of pre-employment claims. Balandran v. Labor Ready, Inc., 2004 DJDAR 15042 (Cal. App. December 17, 2004) (2nd App. Dist., Div. 3) (opinion by Croskey, J., joined by Klein, P.J. and Kitching, J.). The arbitration clause of the employment application provided that each applicant agrees to arbitrate "any disputes arising out of my employment." Female applicants brought suit against a service which employs temporary laborers and one of its customers, claiming that the service illegally agreed to send only male workers to that customer's job site. The Court of Appeal affirmed the trial court's denial of the petition to compel arbitration because the Plaintiffs were never employed.

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