California Business Litigation Blog

In what may be a critical landmark in the struggle for employee rights, the National Labor Relations Board (NLRB) heard a case involving an arbitration agreement requiring employees of a homebuilder to agree to give up their right to join in a class action suit and deemed it an unfair labor practice. The decision comes as a surprise to some, in light of last year’s Supreme Court ruling in AT&T Mobility v. Concepcion that struck down a California rule blocking class action waivers.

The case, D.R. Horton, Inc. and Michael Cuda, was initiated by Cuda, a superintendent at D.R. Horton, who had tried to initiate class action arbitration on his own behalf and that of other superintendents who worked for the builder.

The NLRB ruled that class action waivers have no place in the workplace and employers who make them a condition of employment are engaging in an unfair labor practice. The decision read, in part, "Clearly, an individual who files a class or collective action regarding wages, hours, or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7…Such conduct is not peripheral but central to the act's purposes."

The current case had been likened to the case involving AT&T Mobility, with many predicting that the previous case would influence the NLRB’s ruling in the current case. However, the NLRB stated that the AT&T case was about consumer class action suits and had no relevance to D.R. Horton, which the NLRB considered a case about workplace rights that employees are entitled to by the National Labor Relations Act. "Furthermore, AT&T Mobility involved a conflict between the FAA and state law, which is governed by the Supremacy Clause, whereas the present case involves the argument that two federal statutes conflict," according to the ruling.

The decision is expected to be reviewed by the U.S. Court of Appeals.

The Fontana Unified School District is the subject of a lawsuit filed by the teachers union in the San Bernardino County Superior Court. The suit is demanding that the school district reinstate counselors that the district laid off. The teachers union alleges the counselors should be allowed to return to work on the basis of seniority.

The teachers union claims that the Fontana Unified School District has violated the California Education Code. According to the lawsuit, the district let 68 counselors go after the 2010-2011 school year, then created two new job titles for what was essentially the same position and attempted to hire 42 new counselors.

According to Pat Mazzulli, president of the Fontana Teachers Association, the new counselor positions are “substantially similar” to the old counseling positions. “Rather than follow procedure in the Education Code, the FUSD made reduction in force counselors reapply and interview for their jobs. FUSD attempted to hire outside the district as well," Mazzulli said. According to Mazzulli, the California Education Code requires that the laid-off counselors be given the opportunity to accept or refuse substitute slots before the jobs are offered to new applicants.

The Fontana Unified School District denies any wrongdoing and insists the new counseling positions are entirely different from the old ones. William Wu, assistant superintendent of human resources for the school district, said in an interview that "the district reviewed the comprehensive counseling program, tailored it to the needs of the district and then created new district positions to provide better and different student services…They are not the same as the comprehensive counseling program." Furthermore, said Wu, “The district is not in the business of violating peoples' rights. We are in the business of serving children, but we are not in the business of violating peoples' rights in the process.”

However, the school board has postponed plans to hire applicants for the new positions. According to Mazzulli, no trial date has been set.

Continue reading "Lawsuit Alleges: New Positions a Ruse to Hire New Counselors " »

A second-grade teacher at Hillcrest Elementary School in San Francisco who sued the San Francisco Unified School District in 2006 for employment discrimination and was awarded a $60,000 settlement has gone back to court, this time claiming that officials at the school are retaliating against her for the original lawsuit.

Margaret Reyes filed federal court documents alleging that the school has made unfounded accusations against her and placed her under disciplinary review. Among other things, she claims she was disciplined for letting a student go outside without a jacket and “mishandling” paperwork.

Court papers describe a difficult working environment in which Reyes was denied restroom breaks and forced to teach in a flooded classroom. According to Reyes, the school’s principal, Richard Zapien, taunted the teacher and later refused to come to her assistance when a troubled student got violent and held Reyes and a classroom full of students hostage.

In her suit, Reyes claims that she is being harassed because she took the district to court after the school’s principal suggested that she should leave the district and seek work in a school associated with her religion. Her suit also alleges that Reyes has been discriminated against because of her gender and age as well as her religion.

Richard M. Rogers, attorney for Reyes, stated, “There was a budget crunch. People were getting pink slips. She’s Catholic, and (the principal) made the comment that she should get a job at a Catholic school to open a spot for someone else.”

Rogers also accused the district of not complying with the court’s order in the earlier case, although he said a confidentiality clause prevented him from being more specific.

Continue reading "Second-Grade Teacher Sues School District for Retaliation" »

The American Civil Liberties Union of Colorado and the ACLU Women’s Rights Project have indicated their intent to take legal action on behalf of a Jefferson County teacher who was fired for exercising her right under state and federal anti-discrimination laws to express her breast milk at work.

The ACLU took the first step towards bringing suit against the Rocky Mountain Academy of Evergreen (RMAE) by filing a state notice of claim against Rocky Mountain and a federal complaint of discrimination on behalf of Heather Burgbacher.

Burgbacher taught at Rocky Mountain for five years and consistently received positive evaluations. When Burgbacher tried to exercise her legal right to express milk at work, Rocky Mountain refused to allow her to pump and even told her she should feed her baby formula. Breastfeeding requires the mother to express milk at regular intervals throughout the day in order to maintain an adequate supply of milk to nourish her baby. Formula is considered an inferior substitute for breast milk.

After mediation forced the school to accommodate Burgbacher's legal rights, the school made plans to terminate her contract. Burgbacher's supervisor informed her that the sole reason for the termination was her request to pump. However, Colorado's Workplace Accommodations for Nursing Mothers Act recognizes the benefits of breastfeeding to health and society at large and grants mothers the unequivocal right to express milk at work and requires employers to make reasonable accommodations for nursing mothers who need to pump at work.

“Colorado law explicitly states that no mother should have to choose between breastfeeding her baby and keeping her job. Yet that’s precisely the position in which RMAE placed Ms. Burgbacher,” said Rebecca T. Wallace of the ACLU.

In their legal filings, the ACLU references the Colorado statute as well as federal laws that prohibit discrimination on the basis of sex or pregnancy and forbids employers from retaliating against employees who protest violations of the anti-discrimination laws.

Continue reading "Teacher Fired for Pumping Breast Milk " »

A former Illinois college staff member is suing her ex-employer. Discrimination and retaliation are the dual legal bases of a lawsuit filed by former Richland Community College registrar JoAnn Wirey.

The current legal controversy began over four years ago when Wirey was diagnosed with mononucleosis. The debilitating blood disorder is characterized by lethargy and chronic fatigue.

Despite medical documentation of health contraindications, Wirey was charged with “insubordination” for failing to work on Saturdays. Consequently, she invoked the protective legal provisions of the Americans with Disabilities Act (“ADA“). This federal law requires employers to make “reasonable accommodations” for disabled workers.

Shortly after filing suit, Wirey was disciplined for posing in a picture alongside an adult male student whose abdomen was partially exposed. Next, she was sanctioned for stating that foreign students needed American sponsorship to avert another 9/11 catastrophe.

Wirey initiated formal grievances immediately after both incidents. Soon afterward, she was suspended for allegedly advising a student’s mother that the pupil’s grades were “none of [the mother’s] business.”

While suspended, Wirey was accused of grade altering. One month later, she was finally dismissed after refusing to waive her right to appeal the disciplinary actions.

Wirey further alleged that the college provided a derogatory job reference to the school district. Legal pleadings posit that this action was retaliatory and resulted in Wirey’s rejection for a teaching position. Court documents disclose that Wirey received consistently positive employee performance evaluations prior to the litigation.

Patience is a virtue in academic, pecuniary, and altruistic contexts alike. College officials may have been well advised to wait and “bide time.” Even if entirely appropriate, disciplinary actions can have devastating impact by creating inaccurate impressions and negative perceptions.

Avoiding every appearance of impropriety is often more prudent than taking immediate remedial measures. Effective administrators must accurately assess and act in accordance with the totality of all relevant circumstances.

The Ninth Circuit Court of Appeals recently overruled a lower court’s dismissal of a lawsuit filed by a former school district employee who had been fired for sitting next to her boss in public.

In 2004, the Washoe County School Board publicly convened in Reno, Nevada to announce its decision to terminate the employment of general counsel Jeffrey Blanck. Providing moral support, administrative assistant Katherine Nichols sat stoically beside him without uttering a single word.

The next day, Nichols was offered a difficult choice: demotion or early retirement. After accepting the latter "option," she filed suit. In dismissing her case, a federal District Court reasoned that the district had a legitimate interest in preventing "disruptive" employee conduct.

Last month, the Ninth Circuit Court of Appeals reinstated Nichols' lawsuit. Judge Margaret McKeown noted the absence of any evidence of possible disloyalty or disruption that sitting next to one's boss in public portends.

The court ruled that actual disruption or its reasonable anticipation is the only permissible grounds for disrupting public employment.

In a related opinion released in June, the US Supreme Court espoused restricted First Amendment rights for outspoken public servants who openly complain about workplace issues.

The Court recognized an exception for speech that pertains to matters of vital public import, however. In fact, the entire legal basis of Nichols' original claims rested upon this "public interest" immunity against official reprisals.

This type of employment controversy lies within the proper definition of "speech." Can tacit actions such as taking a certain seat constitute "speech”? Just how far should the concept of “expression” be extended? What constitutes valid grounds to terminate public employment?

This case is a prime example of why private and public employers, especially school districts which often manage and make decisions by committee need to tread carefully.

Continue reading "Court of Appeals Reinstates Nevada School Administrator’s Lawsuit" »

Earlier this month, a former Bourne, Massachusetts firefighter filed suit against the Town and municipal administrator, his former employer and a municipal administrative official in a Boston federal court. Former firefighter Richard Doherty alleged that the defendants violated his First Amendment rights by terminating his employment after he posted certain comments on Facebook.

The 47-year-old Mattapoisett resident had been a Bourne Fire Department paramedic and firefighter for 16 years prior to his dismissal last February.

Doherty was quoted as having posited that recovering his employment and reputation were his primary motivations for commencing the litigation. Doherty’s grim observation that “[I] have a family to take care of” also echoed apparent pecuniary considerations. Doherty’s claims include back pay, reinstatement, legal fees, and compensation for emotional distress.

The main point of contention in the case seems to center around the alleged retaliatory motive underlying Doherty’s discharge. Per court pleadings, Town officials allegedly violated Doherty’s First Amendment free speech rights by firing him in retaliation for private postings he made on his personal Facebook page.

Ostensibly, Doherty’s remarks were highly critical of various practices and issues of concern within fire department. A representative speaking on behalf of Doherty’s attorney likened such commentary to a worker who vents by steam about his or her employment conditions while visiting a local bar. The lawyer observed quite aptly that such utterances have traditionally constituted legally protected speech.

The Town’s termination ruling found that Doherty’s posts “ridiculed and disparaged” various police and fire department officials. Doherty says that he was mainly concerned about his fellow firemens’ safety and welfare, as the department took a lackadaisical approach to such issues.

This case is reminiscent of the old adage, “I may disagree with what you say, but I will defend to the death your right to say it.”

Historically, First Amendment Free Speech rights have been the “holiest of holies” in American jurisprudence. Courts have been justifiably reluctant to limit the free expression of diverse ideologies and opinions.

Some contexts do constitute legally valid prior restraints on free speech, however. A famous example is a man’s false scream of “fire” in a crowded theater.

Case law analysis portends that the ultimate outcome of this case will likely hinge upon the court’s factual findings of Doherty’s true motivation for the disputed postings.

If the court finds his primary motivation to have been legitimate concern over vital matters of public interest, he will likely prevail. If, however, it finds his motivations were personal, he may be left without legal recourse.

Michele Vulcano Hall is currently fighting to keep her case against the Easton Area (PA) School District alive in Federal District Court. The school district’s attorneys have asked the court to dismiss Vulcano Hall’s claims on the grounds that she has failed to prove the violation of any legally-protected right.

In August of 2008, Vulcano Hall was engaged in a practical skills workshop internship when the district offered her a full-time teaching job. She was fired one year later. In her lawsuit, Vulcano Hall alleged she was dismissed in retaliation for her father’s position as a vocal school board member.

In response, the district denied any retaliatory motive. Further, it alleged that Vulcano Hall’s employment was a 10-month temporary position. The district admits, however, that its primary motive for terminating Vulcano Hall’s employment was her failure to attain full certification.

Currently, Vulcano Hall works as a substitute teacher for the district. Although she does not possess full teaching certification, her current credentials are sufficient for substitute teaching. During her prior 10-month teaching tenure in the district, Vulcano Hall taught subjects in multimedia/study skills.

The entire case appears to turn upon two primary points of contention: 1) Whether or not Vulcano Hall’s former teaching position was permanent or temporary employee; and, 2) The true motive for her eventual termination.

Hall’s attorney argued that her client had received written and verbal assurances of 2 to 3-year extension of time to earn full teaching certification. The district had purportedly made an exception to this policy for Vulcano Hall, as she has several long-term learning disabilities.

The Americans with Disabilities Act (“ADA”) requires employers to make “reasonable accommodation” for disabled workers. Felker also invoked a Pennsylvania statute that requires prior unsatisfactory job ratings as a condition precedent for terminating public employment. Allegedly, Vulcano Hall consistently received positive evaluations.
Hall’s attorney asked that the court allow the modification of original pleadings if it finds that they do not sufficiently set forth Vulcano Hall’s legal claims. The Federal Rules of Civil Procedure allows judges to permit the amendment of complaint documents in such instances.

Continue reading "Former Schoolteacher Determined to Take School District to Task" »

Employment law as it pertains to public employees in Wisconsin is set to undergo a significant transformation if and when the state Senate passes Governor Scott Walker's controversial Budget Repair Bill. The specifics of the legislation were made public in early February, with the Assembly approving the bill on February 25. It remains unclear when the proposed law will be subject to a vote in the Senate.

No matter which side of the aisle one sits, it is indisputable that the proposed legislation is poised to drastically alter how public sector unions function. Employers impacted by the potential changes will be need time to adjust their practices to adapt to a new employment law landscape, though certain portions of the legislation would necessitate almost immediate changes for public sector unions and their membership.

The Governor maintains that the bill offers the only hope of preventing significant pubic employee layoffs resulting from the state's growing financial instability. While Mr. Walker has provided a great deal of information intended to support his party's position on the proposed legislation, opponents and public sector union s have disputed the bill's necessity and have organized large-scale demonstrations at the capitol over the past few weeks. The Wisconsin Employment Relations Commission (WERC) estimates that upwards of 200,000 individuals represented by 2,000 collective bargaining units in Wisconsin could be affected.

Among the possible change for public employees (with the exception of some public safety personnel) are:

Limitations on collective bargaining, including a prohibition on bargaining over issues not under the umbrella of the Wisconsin Municipal Employment Relations Act would be enacted. Preliminary certification elections would occur in April 2011 to decide if bargaining unit members desire continued union representation, or else face decertification. Union contracts would be limited in duration, dues could no longer be required for union membership, and collection of dues through salary deduction would become illegal.

Covered employees would pay one-half of retirement contributions as prescribed by the Employee Trust Fund Board, and it would no longer be permissible for most public sector employers to make employee-required contributions on their behalf.

Employer categories affected by the legislation would no longer be permitted to pay greater than 88 percent of the average cost of group insurance plans falling into the cheapest employee premium tier.

The employers specified in the law would be permitted to fire public sector employees taking part in strikes, work stoppages or other organized protests, or those missing work without prior authorization for a period exceeding three days.

Because of the substantial potential changes embodied in the proposed legislation, public sector employers are well advised to monitor developments in the capitol as they continue to unfold.

Continue reading "Wisconsin's Budget Repair Legislation's Potential Impact on Collective Bargaining" »