California Reasonable Accommodation Bill Gets Signed Into Law (AB 987)

Governor Brown has just signed AB 987, Employment discrimination: unlawful employment practices (2015-2016), authored by Assemblymember Levine, which amends the Fair Employment and Housing Act ("FEHA") under the religious accommodation and disability accommodation provisions (California Government Code § 12940(l) and (m), respectively) to clarify that an employer cannot retaliate or otherwise discriminate against a person for requesting a reasonable accommodation.

This bill abrogates a ridiculous part of the Second District Court of Appeal decision, Rope v. Auto-Chlor System of Washington, Inc., (2013) 220 Cal. App. 4th 635, which held that a request for reasonable accommodation is not protected activity under the FEHA.  With the exception of its holding on this issue, Rope, remains good law.  You may recall, Mr. Rope sued his employer after he was terminated from trying to donate his kidney to his sister - something near and dear to my heart - [don't worry Katie - mine is pickled now] alleging a violation of the Michelle Maykin Memorial Donation Protection Act (“DPA”), retaliation, wrongful termination in violation of public policy, and violations of the FEHA.

In a nasty set of facts, Mr. Rope, who had planned to donate a kidney to his sister, was terminated two days before the DPA became effective. The Superior Court, Los Angeles County, No. BC467045, Holly E. Kendig, J., sustained employer's demurrer (basically dismissal) to initial complaint with leave to amend in part, and, following amendment of complaint, sustained employer's demurrer without leave to amend. Mr. Rope appealed and the Court of appeal did not really throw him a line in a wishy washy decision, the Court of Appeal, Johnson, J., held that:

1 DPA does not apply retroactively;

2 complaints to employer did not trigger protection of whistleblower statute applicable to complaints to a governmental agency;

3 court would decline to extend whistleblower protection under theory of anticipatory retaliation;

4 employee's requests for paid leave did not constitute protected activity sufficient to support a claim for retaliation under the FEHA;

5 employee exhausted his administrative remedies prior to adding FEHA claim for discrimination on the basis of actual or perceived disability;

6 employee stated a prima facie “expense” associational discrimination claim under the FEHA; and

7 employee stated a prima facie claim for wrongful discharge in violation of public policy. 

The Court of appeal basically affirmed in part and reversed in part with directions. The law to this point had clearly protected disability and reasonable accommodation requests. (See Pregnancy Disability Leave Law (Government Code § 12945) and the California Family Rights Act (Government Code § 12945.2 and 19702.3).  The California legislature did not like this act of judicial activism and specifically targeted Rope’s holding in the legislative history, which states at relevant part:

“(c) The law of this state contains similar protections for a person making a request for reasonable accommodation under the Pregnancy Disability Leave Law (Section 12945 of the Government Code) and the California Family Rights Act (Sections 12945.2 and 19702.3 of the Government Code). It is the intent of the Legislature for the protections afforded a person making a request for accommodation on the basis of religion or disability to be consistent with the provisions of the Fair Employment and Housing Act (Part 2.8 (commencing with Section 12900) of Division 3 of Title 2 of the Government Code).

(d) Notwithstanding any interpretation of this issue in Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635, the Legislature intends (1) to make clear that a request for reasonable accommodation on the basis of religion or disability is a protected activity, and (2) by enacting paragraph (2) of subdivision (m) and paragraph (4) of subdivision (l) of Section 12940, to provide protection against retaliation when an individual makes a request for reasonable accommodation under these sections, regardless of whether the request was granted. With the exception of its holding on this issue, Rope v. Auto-Chlor Sys. of Washington, Inc., (2013) 220 Cal. App. 4th 635 remains good law.”

This bill should apply to all existing claims and lawsuits and any trial court considering the issue should re-read the Rope decision.  As the California Supreme Court has explained, “A statute that merely clarifies, rather than changes, existing law" may be "applied to transactions predating its enactment”  See W. Sec. Bank v. Superior Court, (1997) 15 Cal.4th 232, at 250.

The full text of the statute can be found here.  If anyone has questions about their existing employment law claims or requests for reasonable accommodation or retaliation, please contact Richard E. Quintilone II Esq. of Quintilone & Associates for more information. 

Court Holds Electronic Signature Not Enough to Compel Arbitration

In Ruiz v. Moss Bros. Auto Group Inc.,(2014) 232 Cal. App.4th 836, an auto parts company cannot enforce its agreement to arbitrate employment disputes individually in a class action case since  it failed to prove the authenticity of an employee's electronic signature on the agreement.

An official of Moss Bros. Auto Group failed to present sufficient evidence in her statement that the employee actually signed the agreement, the 4th District Court of Appeal said.

The appellate panel affirms a state court decision denying Moss Bros.' motion to compel arbitration of a wage-and-hour class action.

Automotive service technician Ernesto Ruiz filed the class action in the San Bernardino County Superior Court in July 2012, alleging Moss Bros. violates state labor laws by failing to pay overtime and by denying employees rest and meal breaks.  The claim included an action under the Private Attorney General Act as well ("PAGA").   

The company moved to compel individual arbitration based on an agreement it says Ruiz signed in 2011.  In support of its motion, Moss Bros. produced a declaration from its business manager, Mary K. Main, that said Ruiz electronically signed the agreement.

According to Main, each employee received the agreement and had to log in to the company's computer system with their ID and password to view and acknowledge the agreement.

Ruiz countered that he did not recall signing the agreement and said Main made “conclusory” statements and could not prove that he had signed it. Ruiz maintained that he would not have signed it if it had been presented to him.  Judge Pacheco of the trial court denied the company's motion, finding that it failed to show that an agreement existed with Ruiz. Moss Bros. appealed.

In affirming the decision, the appeals court concluded that Main's explanation of how employees acknowledged the agreement was insufficient given Ruiz's contention that he did not remember receiving and signing it.

The employees were required to sign the acknowledgement form of the 2011 agreement but they were free to examine it at their leisure while logged in to the system, the panel observed.

Main did not explain whether or how Moss Bros. verified that only Ruiz, using his “unique login ID and password,” could have placed his signature on the form, the panel said.

Another wrinkle to this case was there was no statement of decision, nor much of a record for the Court of Appeal. Litigants should consider using private Court Reporters such as Veritext or KWCourtreporting to make sure the record is clear for the court of Appeal.