California Employment Law Notes - July 2012

Medical Group Partner Could Proceed With FEHA Retaliation Claim

Fitzsimons v. California Emergency Physicians Med. Group, 205 Cal. App. 4th 1423 (2012)

Mary Fitzsimons is an emergency physician and a member of the California Emergency Physicians ("CEP") partnership. After Fitzsimons's appointment as a regional director was terminated, she filed suit alleging she had been removed in retaliation for reports she had made to her supervisors that certain officers and agents of CEP had sexually harassed female employees of CEP's management and billing subsidiaries. At trial, the jury determined that Fitzsimons was a partner and not an employee of CEP, and the trial court then entered judgment in favor of CEP on the ground that a partner has no standing to assert a claim under the Fair Employment and Housing Act ("FEHA"). The Court of Appeal reversed, holding that FEHA makes it unlawful for CEP to retaliate against "any person" for opposing harassment, including a partner. See also Rickards v. United Parcel Serv., 206 Cal. App. 4th 1523 (2012) (employee's attorney's verification of the online complaint to the DFEH is sufficient to exhaust administrative remedies).

Pharmaceutical Sales Reps Are Exempt From FLSA As Outside Salespeople

Christopher v. SmithKline Beecham Corp., 567 U.S. ___, 132 S. Ct. 2156 (2012)

Plaintiffs in this case are pharmaceutical sales representatives for SmithKline Beecham whose primary objective was to obtain nonbinding commitments from physicians to prescribe the company's products. Each week, the employees spent approximately 40 hours in the field calling on physicians and an additional 10 to 20 hours attending events and performing miscellaneous business-related tasks. The employees received a base salary and incentive pay, but no overtime for hours worked in excess of 40 per week because they were classified as exempt outside salespeople. In this lawsuit, the employees claimed they had been misclassified as outside salespeople and that they were entitled to overtime pay. The district court granted summary judgment to the employer, which the employees challenged on the ground that the court had failed to accord controlling deference to the U.S. Department of Labor's interpretation of the pertinent regulations, which the DOL had announced in 2009 in an amicus brief filed in a similar action. The district court and the Ninth Circuit Court of Appeals rejected the employees' contention and determined that the DOL's interpretation is not entitled to controlling deference. The United States Supreme Court affirmed the judgment of the Ninth Circuit.

Employee Terminated For Refusing To Sign Disciplinary Memo Was Disqualified From Unemployment Benefits

Paratransit, Inc. v. CUIAB, 206 Cal. App. 4th 1319 (2012)

Craig Medeiros was terminated by his employer Paratransit for refusing to sign a disciplinary memorandum that was issued in connection with a prior incident of misconduct involving a customer. Medeiros (who was a member of a union) refused to sign the disciplinary memo without a union representative being present (which he had requested and was denied) even though the signature line indicated only "Employee signature as to Receipt." The employer's representative informed...