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  • Within the past two years, Labor Code § 1102.5, California’s general whistleblower protection law, went from being a secondary cause of action to the most important one for most employees alleging retaliation. Two critical events spurred this change: (1) the 2020 amendment to section 1102.5 allowing successful plaintiffs to recover attorney’s fees; and (2) the California Supreme Court’s January 2022 decision in Lawson v. PPG Architectural Finishes, Inc., 12 Cal. 5th 703 (2022), which clarified the framework for evaluating section 1102.5 claims. But while the benefits of attorney’s fees are readily apparent, the extent of Lawson’s impact remains to be seen.

    In its November 2022 issue, the California Labor & Employment Law Review published an article by Ramit Mizrahi that examined all published and unpublished California and federal appellate decisions and federal district court cases that addressed Labor Code § 1102.5 claims post-Lawson. The results suggest that defendants continue to prevail on summary judgment, and some courts may be treating the first step in the sections 1102.5/1102.6 analysis as creating a heavier burden than the first step in the McDonnell Douglas test. If so, the benefits of section 1102.6 to plaintiffs may largely be neutralized.

    Click below to read the article in full.

  • The January 2022 issue of the California Lawyers Association’s Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi.

    The article—”The Top Employment Cases of 2021″—highlights the most important California state and federal employment cases from last year. Click on the below image to read the article in full.

    Image of Labor and Employment Law Article

    Ramit will also be speaking at the following continuing education program this month:

    Thursday, 1/20/22, 8:30-10 a.m.
    2022 New Employment Practitioner Conference, Employment Law 101
    Program by: California Lawyers Association Labor and Employment Law Section
    Description: California provides employees with numerous protections that practitioners need to understand to provide effective representation. In this module, our panelists will provide an overview of filing and defending against claims of discrimination, harassment, and retaliation provided by the Fair Employment & Housing Act, Title VII of the Civil Rights Act, and other key employment laws. The presentation will touch upon exhaustion of administrative remedies, the essential points of analysis for claims, recent changes to the law, and emerging trends and concerns.

  • The January 2021 issue of the California Lawyers Association’s Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi.

    The article—”The Top Employment Cases of 2020″—highlights the most important California state and federal employment cases from last year. Click on the below image to read the article in full.

    Image of Labor and Employment Law Article

    Ramit also spoke on two panels this month:

    Thursday, 1/14/21, 3-5 p.m.
    2020 Is Done: What’s New In 2021?
    Program by: Consumer Attorneys Association of Los Angeles
    Description: Stay up-to-date on the laws that affect your practices. This program covers new housing laws post-COVID, new employment laws, a personal injury perspective on Proposition 22, and anticipated and current legal challenges to the new laws.

    Thursday & Friday, 1/20/21-1/21/21
    2021 New Employment Law Practitioner 2021
    Program by: California Lawyers Association Labor & Employment Law Section
    Description: This is the perfect program for the new lawyers, paralegals, and legal assistants who work with you to learn about the basics of employment law. The program will have six panels: Employment Law 101 (discrimination, harassment, retaliation), Leave of Absence Compliance, Wage and Hour 101, Ethics & Bias During Pandemic Times, California Privacy Rights Act’s Top 10, and Complying with the NLRA.

  • man putting together final jigsaw pieces to complete a Pride flag

    Today is a day for the history books, and a day for celebration! In Bostock v. Clayton County, a landmark decision released on June 15, 2020, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964’s prohibition on sex discrimination encompasses discrimination based on sexual orientation and gender identity. In doing so, the Court gave gay and transgender employees throughout the nation workplace protections from discrimination, harassment, and retaliation. The 6-3 opinion, authored by Justice Gorsuch, held that an employer who fires a worker for being gay or transgender violates Title VII, as doing so necessarily discriminates against that person because of sex. In doing so, the Court resolved a split among federal courts as to whether Title VII offered these protections—as some courts had held that employees could be fired for being gay or transgender.

    Here in California, our civil rights law, the Fair Employment and Housing Act (“FEHA”), has protected gay and transgender employees from discrimination, harassment, and retaliation for years:

    • In 2000, the FEHA was amended to prohibit discrimination based on sexual orientation.
    • In 2003, the FEHA was amended to include “gender” in its definition of sex. The definition incorporated by reference then-Penal Code section 422.76, which defined gender as “the victim’s actual sex or the defendant’s perception of the victim’s sex, and includes the defendant’s perception of the victim’s identity, appearance, or behavior, whether or not that identity, appearance or behavior is different from that traditionally associated with the victim’s sex at birth.”
    • In 2011, the FEHA was amended to specifically prohibit discrimination and harassment based on “gender,” “gender identity,” and “gender expression.”

    I have traced this history and written before about why workplace protections are so important for gay and transgender employees. Now, workers throughout the nation will be protected.

    Two of the three plaintiffs in these cases, Aimee Stephens and Donald Zarda, did not live to see this day—a poignant reminder that while we may not see the benefits of some of our work, we do it as much for future generations as for ourselves.

  • The January 2020 issue of the California Lawyers Association’s Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi.

    The article—”The Top Employment Cases of 2019″—highlights the most important California state and federal employment cases from last year. Click on the below image to read the article in full.

    Image of Labor and Employment Law Article

  • The January 2019 issue of the California Lawyers Association’s Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi.

    The article—”The Top Employment Cases of 2018″—highlights the most important California state and federal employment cases from last year. Click on the below image to read the article in full.

    Image of Labor and Employment Law Article

  • The January 2018 issue of the California Lawyers Association’s Labor & Employment Law Review features an article authored by Andrew Friedman, Ramit Mizrahi, and Tony Oncidi.

    The article—”The Top Employment Cases of 2017″— highlights the most important California state and federal employment cases from last year. Click on the below image to read the article in full.

    Image of Labor and Employment Law Article.

  • This month’s issue of the California Labor & Employment Law Review features an article authored by Ramit Mizrahi, Andrew Friedman, and Tony Oncidi. The Law Review is an official publication of the State Bar of California’s Labor & Employment Law Section. The article—”The Top Employment Cases of 2016″—highlights the most important California and Supreme Court employment cases from last year. Click on the below image to read the article in full.

  • Most people know that employers are required to provide reasonable accommodations to employees with disabilities. But they are also required to accommodate those whom they perceive or regard as disabled. A new California case, Moore v. Regents of the Univ. of California, 248 Cal.App.4th 216 (2016) affirms these obligations and has terrific language with respect to employee accommodation and leave rights.

    Background

    Deborah Moore worked as UCSD’s Director of Marketing. In mid-2010, a new person took over as her supervisor and sought to restructure the department. A couple of months later, Moore was diagnosed with idiopathic cardiomyopathy, a condition affecting the heart muscles that can lead to heart failure. Her doctor ordered her to wear a heart monitor and external defibrillator for several weeks. Moore told her supervisor about her heart condition and needs, and assured the supervisor that “there was nothing to worry about, that it would take care of itself” and that she would be able to do her job, “no problem.” Her supervisor, however, was concerned—unilaterally deciding to “lighten [Moore’s] load to get rid of some of the stress.” The supervisor asked HR what to do in the case of a medical event and admitted that she asked how to handle Moore as a liability. After that, the relationship between Moore and her supervisor soured, with Moore believing that the supervisor was unfairly criticizing her, yelling at her, taking away her duties, and demoting her because of her heart condition. Some time later, Moore advised that she would need some time off to get a pacemaker put in. The supervisor then eliminated Moore’s position and terminated her—even though Moore had more seniority than a colleague of hers and that this was a violation of policy. In the following six-month period, new employees were hired, including for roles that Moore was well-qualified to perform.

    Moore’s Complaint and History of Her Case

    Moore sued, alleging causes of action under the Fair Employment and Housing Act (FEHA) for disability discrimination, failure to accommodate, failure to engage in the interactive process, and retaliation, as well as causes of action for interference and retaliation under the California Family Rights Act (CFRA). Note that Moore’s disability causes of action were based on perceived disability, rather than actual disability.

    The Regents moved for summary judgment, which the trial court granted. Moore appealed.

    The Court of Appeal’s Decision

    The Court of Appeal held that summary judgment was improperly granted with respect to all but one of Moore’s causes of action. In doing so, the court followed the holding of Gelfo v. Lockheed Martin Corp., 140 Cal.App.4th 34 (2006), which holds that employers have an obligation to provide reasonable accommodations and engage in the interactive process with those that they regard as disabled. It quoted the rationale laid out in Gelfo:

    “An employer who in unable or unwilling to shed his or her stereotypic assumptions based on a faulty or prejudiced perception of an employees abilities must be prepared to accommodate the artificial limitations created by his or her own faulty perceptions.”

  • Students sitting with teacher

    Vergara v. State of California, No. B258589, 2016 WL 4443590 (Cal. Ct. App. Aug. 22, 2016)

    Nine California public school students sued the State of California and state officials alleging that portions of the California Education Code that govern teacher tenure, dismissals, and layoffs were unconstitutional and denied them equal protection. Over the course of an eight-week trial, the evidence reflected a number of significant problems: Tenure decisions were required to be made so quickly (within two years) that principals had only about 16 months to begin making their reelection decisions—far too little time to adequately assess performance. Dismissals of teachers were so expensive and time-consuming that in a ten-year span only two teachers per year on average out of a total K-12 teacher population of 277,000 were dismissed. “Last in, first out” rules regarding layoffs required that teachers be let go in reverse order of seniority, such that effective teachers were laid off before ineffective ones with more seniority. Extensive evidence was presented about how administrators engaged in a “dance of the lemons”—shuffling grossly ineffective teachers around from school to school, with them often landing in schools serving poor and minority students.

    After the trial, the trial court issued a ruling declaring five sections of the Education Code unconstitutional. The court found that competent teachers are a critical component of a child’s success in their educational experience, and that grossly ineffective teachers undermine a child’s success. The court determined that the evidence at trial was compelling and “shocks the conscience.” The court concluded that the challenged policies were unconstitutional, determining that substantial evidence showed that they disproportionately affected poor and/or minority students. Defendants appealed.

    The Court of Appeal Upheld the Laws

    The Court of Appeal reversed, holding that the statutes did not inevitably cause low-income and minority students to be disproportionately assigned to grossly ineffective teachers in violation of equal protection, nor was there an identifiable class under equal protection analysis for the “unlucky subset” of students in the general population assigned to grossly ineffective teachers. As the court reasoned . . .

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