California Employment Law Notes - January 2017

$90 Million Judgment Reinstated: Employers Must Relieve Employees Of All Duties During Their Rest Periods

Augustus v. ABM Sec. Servs., Inc., 2016 WL 7407328 (Cal. S. Ct. 2016)

Jennifer Augustus filed this putative class action on behalf of all ABM security guards, alleging that ABM consistently failed to provide uninterrupted rest periods as required by state law. During discovery, ABM acknowledged that it required guards to keep their radios and pagers on, remain vigilant and respond when needs arose, such as escorting tenants to parking lots, notifying building managers of mechanical problems and responding to emergency situations during their breaks. The trial court granted plaintiffs' motion for summary adjudication on their rest period claim on the ground that ABM's policy was to provide guards with rest periods subject to employer control and the obligation to perform certain work-related duties. The trial court subsequently awarded the class approximately $90 million in statutory damages, interest and penalties. The Court of Appeal reversed, but in this opinion, the California Supreme Court reversed the Court of Appeal and held, consistent with the trial court's judgment, that California law prohibits on-duty rest periods. "What [the law] require[s] instead is that employers relinquish any control over how employees spend their break time, and relieve their employees of all duties - including the obligation that an employee remain on call."

Security Guard Class Action Should Not Have Been Decertified

Lubin v. The Wackenhut Corp., 5 Cal. App. 5th 926 (2016)

Nivida Lubin, et al., filed this class action lawsuit against their employer for its alleged failure to provide Lubin and similarly situated employees (private security guards) with off-duty meal and rest breaks and for providing inadequate wage statements. The trial court initially certified a class of all non-exempt security officers employed by Wackenhut in California during the class period. Following the opinions in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) and Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), the trial court granted Wackenhut's motion to decertify the class. The Court of Appeal reversed the decertification order, holding that "the only explanation articulated for providing an on-duty meal period was a staffing decision - a client's preference for continuous coverage," which did not mean that individual issues predominated. The Court further held that the alleged invalidity of the on-duty meal agreements could be evaluated by statistical sampling or inspection of the agreements themselves and that the rest break and wage statement claims also were susceptible to class treatment.

Discrimination Claims Against Media Company Are Not Barred By Anti-SLAPP Statute

Wilson v. Cable News Network, Inc., 2016 WL 7217201 (Cal. Ct. App. 2016)

Stanley Wilson alleged discrimination, retaliation, wrongful termination and defamation against CNN, et al., where he worked as a television producer before his employment was terminated following an audit of his work involving suspected plagiarism. Defendants answered the complaint and then filed a special motion to strike all causes of action pursuant to Cal. Code Civ. Proc. § 425.16 (the "anti-SLAPP" statute) on the ground that all of their staffing decisions (including those involving Wilson) were acts in furtherance of CNN's right of free speech that were "necessarily 'in connection' with a matter of public interest - news stories relating to current events and matters of interest to CNN's news consumers." The trial court granted CNN's anti-SLAPP motion and dismissed the lawsuit, but the Court of Appeal reversed, rejecting the characterization of defendants' allegedly discriminatory and retaliatory conduct as mere "staffing decisions" in furtherance of their free speech rights to determine who shapes the way they present news stories. See also Armin v. Riverside Community Hosp., 5 Cal. App. 5th 810 (2016) (physician's religious discrimination claims against hospital employer were not barred by the anti-SLAPP statute).

Employee Could Proceed With Disability Discrimination And Wrongful Termination Claims

Soria v. Univision Radio Los Angeles, Inc., 5 Cal. App. 5th 570 (2016)

Sofia Soria worked as an on-air radio personality for Univision...