Retaliation Lawsuits Cost Millions

Yet another multi-million dollar verdict highlights the substantial stakes in retaliation lawsuits. In Donald Bender v. City of Los Angeles, Case No. BC361139 (Nov. 12, 2008), an LAPD officer claimed that he was demoted and kicked out of the department's canine bomb unit after standing up for the only woman in the unit. The LAPD's lawyers argued that the plaintiff had improperly stored dangerous equipment, was insubordinate, and had problems getting along with others in the unit. The jury agreed with the officer an awarded him $3.6 million.

The Los Angeles Times reported that another jury last year awarded over $1 million to a female LAPD detective who said she was demoted after complaining that her former boss promoted women in exchange for sexual favors. Ya-May Christle v. City of Los Angeles, Case No. BC351899 (Oct. 3, 2007). In another 2007 case, a police commander received a $650,000 settlement based on allegations that he was denied a promotion after clashing repeatedly with the police chief.

A previous post on this blog described steps employers should take to reduce the risk of liability for retaliation claims, which included (1) preparing job descriptions, (2) preparing performance expectations, (3) preparing regular performance evaluations, and (4) documenting performance problems. If you have not taken these steps, these recent retaliation cases should provide the motivation to do so.

Is An Athletic Shoe A Uniform?

A decision published this week reminds us that California employers must pay for their employees' uniforms. Kullar v. Foot Locker Retail, Inc., Case No. A119697 (1st Dist Ct. App. Oct 14, 2008). Although the decision itself deals with the requirements for approval of a class action settlement, one of the underlying claims was that Foot Locker required its employees to wear shoes of a "distinctive design or color," the basis for a uniform reimbursement claim.

Labor Code section 2802 generally provides that employers must indemnify employees for all necessary expenses or losses. The specific requirement to pay for uniforms appears in section 9 of the wage orders, which states: "When uniforms are required by the employer to be worn by the employee as a condition of employment, such uniforms shall be provided and maintained by the employer. The term 'uniform' includes wearing apparel and accessories of distinctive design or color." Read the provision in Wage Order No. 4 here. The requirement does not apply to public employers, who typically negotiate responsibility for the cost of uniforms in collective bargaining.

Further guidance appears in section 45.5 of the DLSE Enforcement Policies and Interpretations Manual, which says: "The Division has historically taken the position, based upon notes of the Com mission, that nurses can wear their white uniforms wherever they work, and the employer, consequently, need not pay for them . Other workers in occupations for which the particular white uniform is generally usable would fall into the same category."

The employer may specify the basic wardrobe items which are used and generally usable in an occupation, but when the employer specifies clothes of a particular design, they may become sufficiently distinctive to constitute uniforms. For example, one of the Labor Commissioner's opinion letters concluded that an employer had to pay for the tropical shirts and rugby pants that it required its waiters and waitresses to wear. See O.L. 1990.09.18. Another letter stated that requiring employees to wear clothing, including undergarments and shoes, that did not contain metal (the employer had employees go through a metal detector because of concern about thefts) would require the employer to pay for the clothing. See O.L. 1994.02.16-1.

Employers concerned about theft or loss of uniforms may require employees to provide a deposit to be refunded upon return of the uniform, under the procedure set out in Labor Code sections 400-410. The employer may not deduct from the deposit for normal wear and tear. Although the wage orders provide that employers may deduct the cost of lost uniforms from the final paycheck, case law and the Labor Code are contrary.

Employers who do not pay for uniforms risk substantial liability. The Foot Locker settlement had a value of $2 million. In June 2003, Abercrombie & Fitch agreed to pay up to $2.2 million, and to stop requiring employees to wear outfits from its stores. Other retailers who had to settle include Gap and Banana Republic ($1.8 million in January 2005), and Ralph Lauren Polo ($1.5 million in January 2006).

Employment Cases on US Supreme Court Docket

The 2008-09 term of the United States Supreme Court will bring decisions in the following cases that involve employment law issues. We will report on the decisions themselves when they are handed down.

Locke v. Karass, Case No. 07-610. Question Presented: "In Ellis v. Railway Clerks, this Court unanimously “determined that the [Railway Labor Act], as informed by the First Amendment, prohibits the use of dissenters’ [union] fees for extraunit litigation.” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 528 (1991) (opinion of Blackmun, J., citing Ellis, 466 U.S. 435, 453 (1984)). In Lehnert, a four-member plurality therefore held “that the Amendment proscribes such assessments in the public sector.” Id. Moreover, Justice Scalia’s separate opinion, concurring in part in the judgment announced by Justice Blackmun, reasoned that “there is good reason to treat [Ellis and the Court’s other statutory cases] as merely reflecting the constitutional rule.” Id. at 555. May a State, nonetheless, consistent with the First and Fourteenth Amendments, condition continued public employment on the payment of agency fees for purposes of financing a monopoly bargaining agent’s affiliates’ litigation outside of a nonunion employee’s bargaining unit? Oral Argument: 10/06/2008. Merits Briefs

A unanimous Court answered "yes" in a decision issued on January 21, 2009. A local may charge for its national's litigation expenses so long as (1) the subject matter of the national litigation bears an appropriate relation to collective bargaining and (2) the arrangement is reciprocal—that is, the local’s payment to the national affiliate is for "services that may ultimately inure to thebenefit of the members of the local union by virtue of their membership in the parent organization."

Crawford v. Metro. Gov't of Nashville & Davidson County, Case No. 06-1595. Question Presented: "Does the anti-retaliation provision of section 704(a) of Title VII of the 1964 Civil Rights Act protect a worker from being dismissed because she cooperated with her employer's internal investigation of sexual harassment? Oral Argument: 10/08/2008. Merits Briefs

The Court answered "yes" in a decision issued on January 26, 2009. Justices Alito and Thomas concurred, but wrote separately to emphasize that the Court was not adopting a broad definition of "oppose" that might encompass non-purposive conduct.

AT&T Corp. v. Hulteen, Case No. 07-543. Questions Presented: "Before the passage of the Pregnancy Discrimination Act of 1978 (PDA), it was lawful to award less service credit for pregnancy leaves than for other temporary disability leaves. Gilbert v. Gen. Elec. Co., 429 U.S. 125 (1976). Accordingly, the questions presented are: 1. Whether an employer engages in a current violation of Title VII when, in making post-PDA eligibility determinations for pension and other benefits, the employer fails to restore service credit that female employees lost when they took pregnancy leaves under lawful pre-PDA leave policies. 2. Whether the Ninth Circuit’s finding of a current violation of Title VII in such circumstances gives impermissible retroactive effect to the PDA. Oral Argument: 12/10/2008. Merits Briefs

14 Penn Plaza LLC v. Pyett, Case No. 07-581. Question Presented: " Is an arbitration clause contained in a collective bargaining agreement, freely negotiated by a union and an employer, which clearly and unmistakably waives the union members’ right to a judicial forum for their statutory discrimination claims, enforceable?" Oral Argument: 12/01/2008. Merits Briefs

Resources for Following the Court

United States Supreme Court (official site)
FindLaw US Supreme Court Center
LII Supreme Court Collection
A-Z Merit Briefs for Supreme Court (from ABA)