In the matter of Elisa Lopez v. Gregory Routt, Cal. Ct. App. B269345 (11/29/2017), the California Court of Appeal affirmed a trial court decision denying prevailing party attorney fees to an individual defendant who had obtained a defense verdict at trial. In that case, Lopez, an employee of the City of Beverly Hills, claimed that she was harassed by Routt, her supervisor, on the basis of her race. The jury rendered a verdict in favor of the City of Beverly Hills and Routt. Routt sought attorney fees in the amount of $374,760.75, and the trial court denied on the grounds that Lopez’s claims were not frivolous. Routt appealed, arguing that the frivolousness standard under Cummings v. Benco Building Services (1992) 11 Cal.App.4th 1383, 1385-1386 did not apply to an individual defendant who prevailed on a harassment claim. The Court of Appeal disagreed. Because the “frivolousness standard ensures that defendants may recover attorney fees and costs when dragged into court to defendant a FEHA suit with no … basis,” an individual who prevails on a FEHA suit is “not left without a means of recovering attorney fees and costs….” But the Court disagreed that the Legislature intended an individual defendant to stand on different ground than a corporate defendant who prevailed on a discrimination or retaliation claim.
In Jameson v. Pacific Gas & Electric Co., Cal. Ct. App. Case No. A147515 (11/1/2017), the First Appellate Division affirmed summary judgment in favor of defendant PGE on the grounds that it had good cause to terminate its former employee, Steve Jameson.
Jameson’s employment history with PG&E extended back to 1977. He had risen in the ranks from apprentice welder to construction specialist/manager and in 2012 to Regional Construction Manager. In June 2013 a subordinate employee, Paul Nelson, reported a safety issue that was escalated to Jameson. Shortly thereafter, Nelson was transferred to another work location. Nelson complained about retaliation and the company launched an investigation, which determined that Jameson had made many more complaints about Nelson’s performance after the safety complaint than before. The conclusion was that Jameson had retaliated against Nelson.
Jameson sued for wrongful termination, claiming that he had an implied agreement with PG&E to only be terminated for good cause, due in part to his tenure of service. However, the Court did not need to reach this issue because it determined that PG&E did in fact have good cause: “PG&E met its summary judgment burden to show it acted reasonably and in good faith after an appropriate investigation determined Jameson retaliated against Nelson. The question, then, is whether Jameson demonstrated a triable issue of fact existed as to the adequacy of the investigation or PG&E’s good faith in relying on it. He did not.” For example, he did not identify evidence to support an inference that the investigator was biased, and the court of appeal found that he had “misrepresented” the investigator’s report, which found that Jameson had initiated the decision to transfer Nelson. Thus, summary judgment was appropriate.
The case demonstrates the difficulties and hurdles a plaintiff may encounter when there is a documented legitimate reason justifying the termination that independently withstands scrutiny. Moreover, a claim entirely predicated on an implied contract that at will employment does not apply is a dangerous tightrope to walk.
On October 12, 2017, Governor Brown signed into law AB 168, which prohibits employers from asking about a candidate’s salary history as part of its determination as to whether to offer employment, or how much to pay. The new Labor code section 432.3, which takes effect on January 1, 2018, also requires employers to provide the pay scale for the position for which the candidate is applying, upon “reasonable request” by the candidate.
The exceptions are, first, that employers may consider salary information that is publicly available pursuant to federal or state law (e.g., under the California Public Records Act or the Freedom of Information Act). Second, salary history may be discussed if an applicant “voluntarily and without prompting” discloses it to his or her potential employer. However, even then, an employer cannot rely solely on prior salary to justify pay disparities.
Employers (and recruiters) should therefore review their employment applications and remove portions seeking wage or benefit information. Managers and interviewers must be trained not to ask candidates questions about salary history. Notably,m this new law applies to employers of any size.
Moreover, employers will need to develop a salary range each job position in California in order to respond to the “reasonable requests” of applicants for this information. It is not clear what information must be included in the pay scale, including whether it includes incentives.
Although the statute does not specify penalties for non-compliance, this could form a predicate for a claim for penalties under the Private Attorneys General Act (“PAGA”).