California employment case index

An employee fired under a no-fault attendance policy after a pancreatitis hospitalization sued under FEHA, CFRA, and Tameny. The Court of Appeal affirmed summary judgment on the FEHA disability claims — telling the employer he was “sick” or hospitalized did not give notice of a disability — but reversed on CFRA and the related Tameny claim, holding that while “calling in sick” alone is insufficient CFRA notice, hospital records showing inpatient care can constitute a request for CFRA-qualifying leave, shifting to the employer the burden to inquire and designate, and that causation does not require the decision-maker to know the absences were protected.

The California Supreme Court held that a CFRA employee’s simultaneous performance of a similar part-time job for another employer is strong but not conclusive evidence that she could perform the functions of her own full-time position. Because the phrase “functions of the position of that employee” means the job this employer assigned — not job functions “generally” — whether Lonicki had a serious health condition disabling her from her Sutter job remained a triable issue, and summary judgment was reversed. The Court separately held that an employer’s failure to invoke the second- and third-opinion dispute-resolution procedure does not estop it from litigating the medical merits.

A class-action waiver in an employment arbitration agreement may be unenforceable where class arbitration would be a significantly more effective way to vindicate employees’ unwaivable statutory rights (such as overtime), considering factors like the modest size of individual recoveries, the risk of retaliation, and…

Reversing summary judgment, the Court of Appeal held that an employee need not mention the CFRA to request protected medical leave — and that an employer that never gave notice of CFRA rights, rejected a chiropractor's certification out of hand, and refused to communicate with the employee's designated representatives could not defeat his interference, retaliation, disability discrimination, and wrongful termination claims as a matter of law.

At least some class-action waivers in consumer adhesion contracts are unconscionable under California law — the “Discover Bank rule” — where the waiver is in an adhesion contract, the disputes predictably involve small amounts of damages, and the party with superior bargaining power has carried out a scheme to cheat…

Mandatory employment arbitration of unwaivable statutory claims is permissible only if the agreement provides certain minimum protections — a neutral arbitrator, adequate discovery, a written award subject to limited review, all types of relief otherwise available in court, and no requirement that the employee bear…

In Pang v. Beverly Hospital, Inc. (2000) 79 Cal.App.4th 986, the Court of Appeal drew the first California line around what it means to take family leave “to care for” a parent. A physical therapist fired after flying to New York to help her independent, 81-year-old mother pack and relocate to a one-level apartment was held not to be “caring for” her mother under the Family Rights Act: her participation had to be “warranted” during “a period of the treatment or supervision” of her mother, and packing boxes and directing movers was not. Affirming judgment on the pleadings, the court confirmed that courts — not the agency — bear ultimate responsibility for construing CalFRA.