California is poised to be on the front lines of implementing laws governing when and if employers can require applicants or employees to divulge their social media passwords and grant employer access as part of the hiring process or in the course of the employment relationship. Last week, the California Senate voted 28-5 in favor of Assembly Bill 1844, which would prohibit employers from forcing employees and prospective workers to turn over usernames and passwords for their social media accounts and also would ban employers from discharging, disciplining or threatening to retaliate against employees or job applicants who did not comply with such requests. Of note, the Senate’s proposed amendments clarify that employers may request personal social media information when related to an investigation involving alleged workplace misconduct or violations of the law. The Senate also amended the bill to specify that the State’s labor commissioner is not required to investigate or determine any violations of the bill. The proposed bill next moves to the Assembly for a vote.
This proposed California bill comes on the heels of multiple memoranda issued by the National Labor Relations Board analyzing various implications of social media in the workplace and specifically opining on what employers can and cannot review and regulate in the context of employee (and applicant) rights. There currently are hundreds of cases pending before the National Labor Relations Board concerning social media issues — and the Board has made it abundantly clear that its jurisdiction to protect employee rights is not limited to organized (“unionized”) workplaces.
Maryland passed the first state law prohibiting employers from requiring disclosure of social media information which goes into effect October 1, 2012. Illinois also passed a similar law on August 1, 2012 (see our prior coverage here) which takes effect on January 1, 2013. Massachusetts, New Jersey and New York are also currently considering similar legislation.
In California, a hotbed of wage and hour class and collective action filings, a recent appellate court opinion provides some long-awaited good news for employers attempting to enforce arbitration agreements as class waivers. In Reyes v. Liberman Broadcasting, Inc., plaintiff Jesus Reyes worked for Liberman Broadcasting, Inc. from April to September 2009. Pre-hire, Reyes executed an arbitration agreement. In May 2010, he filed a class action alleging wage and hour violations on behalf of a putative class of security officers. When it initially answered the Complaint, Liberman failed to raise the issue of arbitration. In July 2011, Liberman filed a motion to compel Reyes to arbitrate his wage and hour claims as an individual (versus holding a role as a class representative). The court denied the motion, finding that Liberman had waived its rights via the delay. This led Liberman to appeal, resulting in a decision further interpreting the U.S. Supreme Court’s April 2011 decision in AT&T Mobility v. Concepcion, which held that the Federal Arbitration Act preempts state laws that invalidate class action arbitration waivers. To date, courts have to date [delete] been split on whether Concepcion overruled the California case of Gentry v. Superior Court, which required class arbitration under certain circumstances. However, last Friday, the appellate court, in Reyes, reversed the lower court’s denial of Liberman’s motion to compel arbitration. In so ruling, the Second District Court of Appeal held, “an arbitration agreement silent on the issue of class arbitration may have the same effect as an express class waiver.” (The Second District Court of Appeal declined to decide whether the Gentry case remains good law following the Concepcion ruling, holding instead that Reyes failed to show that the Gentry factors made the arbitration agreement unenforceable.)
The Court of Appeal also held that although Liberman did not mention the arbitration agreement in its answer and had previously engaged in discovery in the case, the company did not waive its right to compel arbitration. In so holding, the appellate court found that Liberman reasonably concluded it could not enforce the arbitration agreement before the Concepcion decision, given the fact that several California decisions pre-Concepcion appeared to require class arbitration in similar contexts. The Court of Appeal opined, the “risk [of compelled class arbitration] diminished substantially when Concepcion changed the legal landscape, and Liberman promptly informed Reyes of its intent to arbitrate one month after the [Concepcion] decision and filed its motion to compel a month later.” Accordingly, the opinion stated, “Liberman did not act inconsistently with a right to arbitrate by not moving to compel until after Concepcion.”
The body of law on enforcing arbitration agreements as class waivers is still developing post-Concepcion, but perhaps Reyes v. Liberman Broadcasting, Inc. indicates that there is some relief on the horizon.
A California Court of Appeal recently rejected a covenant not to compete included in an employment agreement, although it was related to a transaction for the sale of goodwill of a business – one of the well-recognized exceptions to the general rule in California that limits restrictive covenants.
In Fillpoint, LLC v. Maas, No. G045057 (Cal. Ct. App. Aug. 24, 2012), Michael Maas, a shareholder in Crave Entertainment Group, Inc., sold his shares in the company when it was acquired by Handleman Company. That transaction was executed through a stock purchase agreement which contained a three year covenant not to compete. A month later, Maas entered into an employment agreement, which contained a one year covenant not to compete that became effective as of the date of the termination of his employment with Crave. Three years after the sales transaction, Maas resigned from Crave and began working for a competing company. Handleman’s successor, Fillpoint, LLC, sued Maas for breaching his employment agreement (as well as his new employer for interference with contract).
Fillmore argued that the restrictive covenant in Maas’ employment agreement was enforceable because it fell within the sale of goodwill exception contained in California Business and Professional Code section 16600. The Court of Appeal rejected that argument and found that, although the stock purchase agreement and employment agreement constitute a single transaction and each agreement referenced the other, only the purchase agreement was focused on protecting the acquired goodwill. In contrast, the Court of Appeal stated that the covenant contained in the employment agreement impermissibly targeted an employee’s fundamental right to pursue his or her profession and was therefore unenforceable.
This recent decision reaffirms the limited scope of the exceptions to the general rule in California that covenants not to compete are unenforceable. Therefore, employers must be mindful when drafting such covenants to ensure that they fall squarely within one or more of the recognized exceptions.
According to the California Court of Appeal, a partner in a partnership is protected under the provisions of the California Fair Employment Housing Act (“FEHA”) if the partner complains that the partnership is retaliating against the partner because the partner complained about unlawful discrimination or harassment by the partnership against employees of the partnership. In Fitzsimons v. California Emergency Physicians Medical Group, the California Court of Appeal drew a distinction between a partner alleging discrimination, harassment or retaliation by the partnership against the partner versus the partner complaining that the partnership is retaliating against the partner because the partner complained about unlawful discrimination or harassment by the partnership against employees of the partnership. Say that again?
Here’s what happened in the Fitzsimons case. The plaintiff (a woman partner in the medical practice) claimed that she was retaliated against for reporting that certain male officers and agents of the partnership had sexually harassed female employees. So, the issue was not whether the plaintiff could sue the partnership for sexual harassment against herself as an employee, but whether plaintiff could sue the partnership as a non-employee based on retaliation for complaining that employees of the partnership were sexually harassed. The Court held that under the FEHA, the partner can maintain such an action, even though the partner is not deemed an employee of the partnership.
The Court drew a distinction between the provisions of Title VII and the FEHA by highlighting that Title VII and the FEHA differ significantly. The Court explained that Title VII prohibits employers from retaliating against employees or applicants for employment, whereas the FEHA prohibits employers from retaliating against any person who opposes or challenges unlawful employment practices, such as discrimination or harassment. In Fitzsimons, the plaintiff was regarded as “any person” who opposed harassment of female employees by the officers and agents of the partnership.
Moral of the story: just because a partner is not regarded as an employee of the partnership, the partner still can sue the partnership for retaliation under the FEHA. The case is attached here: Fitzsimons v. California Emergency Physicians Medical Group.
Reflecting on the employer’s perspective on two decisions with national ramifications emanating from California last week, you have an unexpected victory from the Ninth Circuit on medical marijuana and an expected loss from the California Court of Appeal on the application of California law to a California-based officer of a Delaware corporation.
James v. City of Costa Mesa, 10-55769 (9th Cir. May 21, 2012) — The ADA Does Not Protect Medpot Users
The first of these decisions from the Ninth Circuit means that California employers are now free under state and federal law to prohibit marijuana use or possession in the workplace and working while under the influence. See also Ross v. Ragingwire Telecomms., Inc., 174 P.3d 200 (Cal. 2008) (no right to use or be under the influence of medical marijuana in the workplace under California disability discrimination laws).
In hearing a challenge to two California cities’ decisions to bar med-pot dispensaries within their borders, the Ninth Circuit in James held in a 2-1 vote that plaintiffs using medical marijuana under California law were not “individuals with disabilities” under the ADA and thus not entitled to its protections. Although the lawsuit was not an employment case, it nonetheless addressed the same definition of “individuals with disabilities” used in Title I of the ADA, the act’s employment provisions. Given a strong and reasoned dissenting opinion, one can expect a request for the Ninth Circuit to decide the matter en banc (through an 11-judge panel).
Lidow v. Superior Court (International Rectifier Corp.), B239042 (Cal. Ct. of App. May 23, 1012) — California Law Applies to Wrongful Discharge Claim of Corporate Officer
The second decision was far less surprising. There, a California court held that California law applied to the discharge of a Delaware corporation’s California-based CEO, despite the so-called “internal affairs” doctrine. Under that doctrine, matters involving a corporation’s “internal affairs” are governed by the law of the state of incorporation. In an acknowledged case of first impression, the Court of Appeal held that an employer’s discharge of its CEO for complaining about the company’s harmful or unethical policies was not an “internal” corporate matter and should be governed by California law. While it left open the possibility that another basis for discharge may invoke application of the doctrine, it is hard to imagine a circumstance where a California-based CEO or other corporate officer/employee would not be able to claim protection under California’s highly-protective, employee-friendly laws. The Court also rejected, on summary adjudication, the claim that the CEO was not an “employee” and merely an “officer.”
Corporations with California-based officers who may also be seen as employees should consider taking steps to prevent their identification of these officers as employees.
San Francisco partner Cheryl Orr and counsel Fey Epling wrote an article for The Recorder on recent trends that indicate a shift in the landscape of employer class actions, especially in the wake of Brinker Restaurant v. Superior Court.
Cheryl and Fey note that “employers across America are breathing a collective sigh of relief at the California Supreme Court’s ruling,” in Brinker, particularly its holding that “an employer satisfies its duties by providing and permitting breaks, as opposed to ensuring that their employees take them.” This is, however, “just the latest blow to putative class actions” they have observed as management-side class action defense practitioners.
The article outlines other factors, such as, a shift in the nature of filings, the choice of venue, the matter of class certification and a “greater sense of urgency for resolution” of litigation, that have all resulted in “a fairly dramatic shift in the class action landscape.”
To read the entire article, click here.