It Doesn’t Hurt to Ask: New CA Law Protects Right to Ask for Reasonable Accommodation Under California’s Anti-Discrimination Law

Governor Brow­­­­n recently signed into law Assembly Bill 987, overturning the wrong result in Rope v. Auto-Chlor System of Washington, Inc., 220 Cal. App. 4th 635 (2013), review denied (Jan. 29, 2014), and thereby ensuring that all Californians need not fear retaliation should they request a reasonable accommodation from their employer.

In Rope, the plaintiff sought to donate his kidney to his sister. Accordingly, he requested leave from his employer to undergo the transplant surgery and recover from the operation. After repeatedly ignoring Mr. Rope’s requests for leave, the employer eventually approved an unspecified amount of leave. However, only two months before the operation date, Mr. Rope’s employer fired him for allegedly poor performance. Importantly, Mr. Rope had received only positive performance reviews during his employment and had no disciplinary problems prior to his termination.

Mr. Rope filed suit asserting multiple claims including retaliation for requesting a reasonable accommodation under the Fair Employment and Housing Act (FEHA). The trial court dismissed his lawsuit on demurrer, including the retaliation claim. Mr. Rope appealed.

To the dismay of worker advocates statewide, the Court of Appeal affirmed the trial court’s dismissal of Mr. Rope’s retaliation claim. The appellate court interpreted the retaliation provision under the FEHA to require that 1) an employee “engaged in activities in opposition to the employer at the time of the alleged retaliation,” and 2) the employer knew about it. Id. at 653. While the Court of Appeal acknowledged that the FEHA “encompasses a broad range of protected activity,” does not require that an employee “file a formal charge,” and that “[t]he determination as to what constitutes a protected activity is inherently fact driven,” the court nevertheless held that requesting a reasonable accommodation categorically is not “protected activity” under the FEHA. Id. at 652-653. The court did not interpret an employee’s request for reasonable accommodation as “opposition” to an employer. Id. at 652-53.

Other courts have reached different results in similar circumstances, noting that “[i]t would seem anomalous … to think Congress intended no retaliation protection for employees who request a reasonable accommodation unless they also file a formal charge. This would leave employees unprotected if an employer granted the accommodation and shortly thereafter terminated the employee in retaliation.” Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 191 (3d Cir. 2003) (in the context of a lawsuit brought under the Americans with Disabilities Act). The Third Circuit’s concern was warranted, given the outcome in Rope.

Assembly Bill 987 corrects the anomalous result in Rope by ensuring that employees can request reasonable accommodations in the workplace without fear of retaliation. Employers should take notice that, separate from their duty to engage in the interactive process, they may not retaliate against an employee for requesting a reasonable accommodation.

If you believe your employer retaliated against you because you requested a reasonable accommodation, please contact Bryan Schwartz Law.

The Supreme Court Continues to Hinder Efforts to End Retaliation and Workplace Harassment: Univ. of Texas Southwestern Med. Center v. Nassar and Vance v. Ball State University

Very quietly, over the past several years, the Supreme Court has been making it more difficult for Americans to sue businesses for class actions, retaliation and/or discrimination.  The Court seems far more concerned with protecting employers from lawsuits than vindicating employees’ statutory rights.  Two decisions by the Supreme Court on Monday continue this unfortunate trend.

On June 23, 2013, a sharply divided Supreme Court issued two decisions that reveal the Court is out touch with the realities of the workplace and out of touch with the realities of workplace harassment and retaliation.  The Court issued University of Texas Southwestern Medical Center v. Nassar, No. 12-484 (opinion, here) and Vance v. Ball State University, No. 11-556 (opinion here), two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two dissents that she read from the bench.

In the first case, Nassar, who is of Middle Eastern descent, alleged that the University of Texas Southwestern Medical Center blocked him from getting a new job.  According to Dr. Nassar, the Medical Center denied him the new job after he complained that his supervisor discriminated against him based on his race and ethnicity.  The U.S. Equal Employment Opportunity Commission found “credible, testimonial evidence” that the Medical Center retaliated against Dr. Nassar, and a jury found that the University violated the anti-retaliation provision of Title VII.  Nassar, Slip Op., Dissent at p. 4. The U.S. Court of Appeals for the Fifth Circuit upheld the jury verdict.

Supreme Court overturned the decisions of the district and appellate courts, and the Equal Employment Opportunity Commission.  Instead of applying the same standard of proof that is used for race and gender discrimination claims, the Court adopted a more stringent standard for retaliation, which Justice Ginsburg, in her dissenting opinion, recognized “lacks sensitivity to the realities of life at work.”  Nassar, Slip Op., Dissent at p. 25. The lack of sensitivity to the realities of life at work is further reflected in Justice Kennedy’s words that convey empathy for the employer and disdain for employees: “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”  Nassar, Slip Op., at p. 19.  Moreover, the majority’s lack of concern for the financial, reputational and emotional cost of retaliatory harassment to the employee in comparison to the Courts’ desire to reduce the number of retaliation claims filed, regardless of merit, is reflected in the acceptance of the following hypothetical considered by the Court: “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.” Nassar, Slip Op., at p. 18.

For race and gender discrimination, the Court ruled that Title VII requires an employee to show only that race or gender was one of multiple “motivating” reasons for the employer’s decision-making.  Nassar, Slip Op., at p. 23.  However, for a claim of retaliation, the Court ruled that the employee must show that the employer would not have made the decision “but for” its improper retaliatory motive.  Id.  The Court remanded the case to the trial court to apply this higher standard to Dr. Nassar’s retaliation claim.

Unfortunately, the Court’s decision to raise the burden of proof for retaliation claims is in contrast to the strong safeguards necessary to shield employees who protest discriminatory actions.  These protections particularly are important since the number of Equal Employment Opportunity Commission complaints has nearly doubled in the past 15 years from over 16,000 in 1997 to 31,000 in 2012. Nassar, Slip Op., at p. 18.

In Vance v. Ball State the Court ruled that in Title VII cases a person must be able to take “tangible employment actions against the victim, such as hiring and firing someone to be considered a supervisor in discrimination lawsuits, thereby making it harder to blame a business for a co-worker's unlawful and discriminatory behavior.  Vance, Slip Op., at p. 30.  Maetta Vance, the only African-American employee in the Ball State University kitchen, was exposed to racial slurs from Saundra Davis, the kitchen staff worker who gave Ms. Vance her daily work assignments.

The Court previously held that an employer is accountable under Title VII when one of its supervisors harasses an employee.  In Vance, the Court ruled that Ball State was not responsible for Davis’s discriminatory conduct because Davis did not fit the Court’s narrow definition of “supervisor.”  Vance, Slip Op., at p. 30.  The Court’s ruling also rejected EEOC’s guidance regarding who is a supervisor.  Vance, Slip Op. at pp. 20-21. The Court determined that because Davis did not have the power to make certain formal employment decisions, such as hiring, firing, or promoting, she was not a “supervisor” under Title VII, despite the fact that she controlled and supervised Ms. Vance’s day-to-day activities. Vance, Slip Op. at pp. 29-30.

Unfortunately, the Vance decision will leave employees without judicial recourse when faced with harassment by supervisors who may not have the ability to fire workers, but do have the ability to harass them in the workplace.

Both decisions show that the Court is out of touch with the realities of today’s workplace.  In the real world, a coworker who assigns work, even without hiring and firing responsibility, can use that authority to make the conditions of another employees’ life miserable or unsafe because of a protected category. When there is unlawful behavior in the work place, the law should protect employees who try to make the workplace safe for everyone by reporting the situation.  When there is unlawful behavior in the work place, the employer should be required either to fix the situation or be held accountable for not doing so. This is not just the reality of the workplace but this is common sense because everyone-regardless of race, gender or other-wants to work in a workplace free from harassment. Instead of ensuring justice and equality to all, the Court continues to listen to one singular voice-business. As Justice Ginsburg noted in her dissent, “[t]he ball is once again in Congress’ court to correct the error into which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”

New life for whistleblower-retaliation claims

[This article by Bryan Schwartz and Cassidy Clark appeared first in the April 2022 edition of Plaintiff magazine.] 

Lawson and not McDonnell Douglas now provides the framework for litigating section 1102.5 whistleblower claims

California continues to affirm its commitment to employees who blow the whistle on their employers’ unlawful practices. Plaintiffs’ lawyers should take note. Favorable recent developments in California whistleblower retaliation law mean we should all be looking for potential Labor Code section 1102.5 and other whistleblower retaliation claims. 

The California Supreme Court, in Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, explained that the evidentiary standard to establish liability in whistleblower cases is different, and lower, than the McDonnell Douglas burden-shifting framework typically utilized in discrimination cases. Under McDonnell Douglas, the ultimate burden is on the employee – but not so, for whistleblowers.

Whistleblowing employees force a heavy burden onto their employers after demonstrating that protected activity was a contributing factor in an adverse action. Paired with the legislature’s clarification that attorneys’ fees are available in whistleblower cases, codified in Labor Code section 1102.5, subdivision (j), Lawson reaffirms the state’s public policy interest in encouraging workplace whistleblowers to report unlawful acts without fearing retaliation.

Now, whistleblowers are stepping forward like never before, with a new awareness of health and safety in the wake of COVID, and social media increasingly available as a forum for raising concerns. Daily, whistleblowers impact global events, both with the war abroad, and at home, including at some of the biggest employers, from tech giants like Facebook to the federal government.

As plaintiffs’ lawyers, we are in the auspicious position to support whistleblowers and protect the public from employers’ harmful violations of the laws meant to protect us all.

California’s evolving statutory whistleblower protections

Many statutes protect California whistleblowers. For example, employees are specifically protected from retaliation for asserting their rights under FEHA (Gov. Code, § 12940, et seq.), filing a wage claim with the Labor Commissioner (Lab. Code, § 98.6), discussing working conditions (Lab. Code, § 232.5), complaining about workplace health and safety issues (Lab. Code, § 6310), using sick leave (Lab. Code, § 246.5), taking time off work for jury duty (Lab. Code, § 230, subd. (a)), among many other additional protected activities.

However, the most sweeping California whistleblower protection is Labor Code section 1102.5, enacted in 1984, which prohibits an employer from retaliating against an employee for disclosing information the employee reasonably believes violates the law. The protected disclosure may be to a government agency, a person with authority over the employee, or another employee who has authority to investigate or correct the violation. Under section 1102.5, an employee is also protected for refusing to participate in an unlawful practice. (Section 1102.5, subds. (b-c).) In California, “our Legislature believes that fundamental public policies embodied in regulations are sufficiently important to justify encouraging employees to challenge employers who ignore those policies.” (Green v. Ralee Engineering Co. (1998) 19 Cal.4th 66, 77.)

In 2003, in response to “a series of high-profile corporate scandals and reports of illicit coverups,” the legislature passed amendments to expand the Labor Code’s whistleblower protections. (Lawson, 12 Cal.5th at 710 (citing Assem. Com. on Judiciary, Analysis of Sen. Bill No. 777 (2003-2004 Reg. Sess.)).) These amendments included the addition of a procedural provision, section 1102.6. This section requires only that an employee show protected activity was a “contributing factor” under section 1102.5, by a preponderance of the evidence, before an employer must prove by clear and convincing evidence that the alleged action would have occurred for legitimate, independent reasons, apart from protected activities. With the addition of section 1102.6, the McDonnell Douglas burden-shifting framework was abandoned in whistleblower retaliation cases, according to Lawson. (12 Cal.5th at 709-710.)

What changed with Lawson?

After section 1102.6 became law, some California courts adopted it as a new evidentiary standard for whistleblower retaliation claims. (Lawson, 12 Cal.5th at 711.) But some courts continued to use the McDonnell Douglas standard, giving short shrift to section 1102.6. (Ibid.) Courts applying McDonnell Douglas to section 1102.5 adapted it to the whistleblower retaliation framework as follows:

First, a plaintiff was required to establish a prima facie case of retaliation by showing that she engaged in a protected activity, that she was subjected to an adverse employment action, and that there was a causal link between the two. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69). Second, the burden shifted to the employer to put forth evidence of a legitimate, nonretaliatory reason for the adverse employment action. (Id. at 68.) And third, the burden shifted back to the employee to prove the reason was pretext for impermissible retaliation. (Id. at 68-69; see also Lawson, 12 Cal.5th at 710.) The Lawson plaintiff ’s case was dismissed by the U.S. District Court on summary judgment, ostensibly because he failed to prove pretext, under this third element. He appealed.

On appeal, in 2020, the Ninth Circuit noted that California appellate courts conflicted on which evidentiary standard to apply, the McDonnell Douglas framework or that outlined in 1102.6, and certified a question to the California Supreme Court to clarify this issue (Lawson v. PPG Architectural Finishes (9th Cir. 2020) 982 F.3d 752.)

Lawson clarifies that section 1102.6, and not McDonnell Douglas, “supplies the applicable framework for litigating and adjudicating section 1102.5 whistleblower claims.” (12 Cal.5th at 712.) Lawson expressly disapproves state court cases relying on McDonnell Douglas-type burden shifting, including Hager v. County of Los Angeles (2014) 228 Cal.App.4th 1538, Mokler v. County of Orange (2007) 157 Cal.App.4th 121, and Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378.

How Lawson’s reading of section 1102.6 helps plaintiffs

Once an employee shows that the whistleblowing was a “contributing factor” to an adverse employment action, the burden shifts to the employer to demonstrate by clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities. (Lawson, 12 Cal.5th at 712.) This means that the ultimate burden of proof under section 1102.6 lies with the employer to prove, convincingly, that the adverse action would have occurred without the whistleblowing activity.

The ultimate burden of proof in discrimination cases under McDonnell Douglas, to show pretext, is a heavy lift for many plaintiffs – as it was for the plaintiff in Lawson at the trial court. The Supreme Court in Lawson explains that even if the employer has a “genuine, nonretaliatory reason for its adverse action,” all a plaintiff has to do is show that the employer “also had at least one retaliatory reason that was a contributing factor in the action.” (Lawson, 12 Cal.5th at 715-16.) This recognizes the reality that unlawful whistleblower retaliation is often one of multiple reasons that employers can identify for their adverse actions.

The 1102.6 evidentiary standard is not focused on finding the one, “true” reason for the adverse action, as is the McDonnell Douglas framework. (Id. at 714.) Section 1102.6 recognizes the complexity of “mixed motive” cases, wherein employers may make decisions on the basis of both lawful and unlawful considerations. (Ibid.) Lawson says that section 1102.6 does not merely codify the “same-decision defense” under Harris v. City of Santa Monica (2013) 56 Cal.4th 203 in a whistleblower case – section 1102.6 provides the entire applicable framework for litigating and adjudicating section 1102.5 claims. (Lawson, 12 Cal.5th at 712.)

Some courts that referenced the section 1102.6 framework prior to Lawson applied a prima facie test akin to that from McDonnell Douglas as just the first step of their analysis. (See, e.g., Greer v. Lockheed Martin Corp. (N.D. Cal. 2012) 855 F.Supp.2d 979, 988.) Greer equates the first step of the section 1102.6 framework (a plaintiff must demonstrate, by a preponderance of the evidence, that the employee’s whistleblowing was a contributing factor to an adverse employment action) with the McDonnell Douglas framework: (1) the plaintiff engaged in a protected activity; (2) the plaintiff was subjected to an adverse employment action; and (3) there is a causal link between the two. (Greer, 855 F.Supp.2d at 988.) The Supreme Court in Lawson described Greer as one of the decisions in federal courts that showed “widespread confusion” about the evidentiary standards. Lawson brings clarity, holding that section 1102.6 allows plaintiffs to establish liability under section 1102.5 without reliance on McDonnell Douglas. (Lawson, 12 Cal.5th at 717.)

Assessing potential section 1102.5 claims

When assessing a potential 1102.5 claim, we should be prepared to address some of the considerations unaltered by Lawson. We should always investigate: whether the employee’s belief that an activity was unlawful was reasonable; whether the employee disclosed the unlawful activity externally to a government entity, or internally to someone with authority over the employee or the power to investigate or rectify the violation; and, whether an adverse action occurred after the disclosure, setting up an allegation that the disclosure was a contributing factor in what occurred.

Recall that section 1102.5 protects not just those who report violations of law, but also employees who are perceived by employers to have engaged in whistleblowing activity even if they did not do so (subsection 1102.5(b)), employees who testify before a public body about a practice they reasonably believe is unlawful (subsection 1102.5(a)), employees who refuse to participate in activities they reasonably believe are unlawful (subsection 1102.5(c)), and family members of individuals who engage in activities protected by the statute (subsection 1102.5(h)).

The one-two punch of sections 1102.5 and 1102.6 is intended to encourage employees to come forward about the legal violations of their employers without fear of retaliation. We can deploy these statutes not only to protect employees, but to help rectify the many underlying concerns that whistleblowers are raising.

Section 1102.5 fees

Beyond Lawson, the relatively recent addition of subsection 1102.5(j) makes clear that courts should award reasonable attorneys’ fees to a plaintiff who brings a successful action for whistleblower retaliation under section 1102.5, but not to a defendant who defeats whistleblower claims. Previously, if plaintiffs’ attorneys wanted to seek fees for whistleblowers, they had to do so under the California Labor Code Private Attorneys’ General Act (PAGA), or another statute.

Conclusion

Given the explosion of whistleblowing activity, coupled with new pro-whistleblower developments in California, plaintiffs and their lawyers are in a better position than ever to pursue whistleblower retaliation claims.

Blowing the Whistle—When Can You Go to Court about Retaliation?

Whistleblowers—employees who sound the alarm on their employer’s or coworkers’ illegal activity—are vital to protect the public from corporate and government wrongdoing. But there are understandable reasons that employees choose not to speak out, including fear of retaliation. Whistleblower protection laws are designed to prohibit retaliation and encourage whistleblowing.

California’s whistleblower protection laws are some of the nation’s most expansive. A central component of California’s whistleblower protection scheme is Section 1102.5 of the California Labor Code, which, among other protections, prevents employers from retaliating against employees who make complain internally, make whistleblowing reports to government agencies, or participate in government investigations. Section 1102.5 aims to encourage employees to speak out against wrongdoing. The 2003 amendments also codified the California appellate court decision in Gardenhire v. City of Los Angeles Housing Authority (2000) 85 Cal.App.4th 236, to clarify that a government employee’s report to the agency where they work constitutes whistleblowing activity.

But when do government whistleblowers get to enforce their rights in court? Sometimes, government employees who are subject to retaliatory acts—such as termination, demotion, official discipline, etc.—file administrative complaints. Such a complaint can involve a hearing, presentation of evidence, and legal representation, among other formal aspects. Sometimes, the administrative process will eliminate an individual’s right to proceed in court altogether. If an administrative decision lacks the “requisite judicial character” to constitute a full resolution of the legal issue, a court may step in. Sometimes an administrative decision will not be considered a final decision if that would go against the legislature’s intent, given that the legislature created the administrative body in the first place.   

The Ninth Circuit Court of Appeals recently considered the legislative intent exception as it applies to public sector employees alleging whistleblower retaliation in Bahra v. County of San Bernardino. The plaintiff, Eric Bahra, was employed by San Bernardino County’s Department of Children and Family Services, which investigates referrals regarding child abuse, among other duties. While investigating allegations of abuse against a foster parent, Bahra discovered that the foster parent had a prior history of child abuse and neglect, but this history was not reflected in the agency’s database due to errors in previous entries.

He told his manager. Later that day, he witnessed his manager and another agency employee looking through the files on his desk. Next, the agency initiated an investigation into Bahra, assigned him to desk duty, then placed him on administrative leave. Eventually, the agency provided Bahra with a notice of proposed dismissal. He contested it in an initial administrative hearing in 2013, but the hearing officer ruled for the County and the agency dismissed Bahra. He appealed and requested a full evidentiary hearing at the County’s Civil Service Commission. After a 14-day hearing and testimony from 27 witnesses in 2014, the Commission’s hearing officer, in 2015, rejected Bahra’s retaliation claims, and the Commission adopted the hearing officer’s report. Although he was informed that he could seek a writ of mandamus pursuant to California Code of Civil Procedure 1094.5, he elected not to do so. Instead, he filed a civil suit in the United States District Court, bringing claims under Section 1102.5 and 42 U.S.C. § 1983. The District Court dismissed the complaint in 2018 on grounds of issue preclusion and claim preclusion, meaning, that because the matter had been fully adjudicated administratively, it could not be brought in court.

On December 30, 2019, the Ninth Circuit reversed as to Bahra’s Section 1102.5 claim. The court analyzed two state court decisions: Taswell v. Regents of University of California 23 Cal.App.5th 343 (2018), in which the California Court of Appeals held that administrative findings by a state agency do not preclude retaliation claims brought under Section 1102.5; and, Murray v. Alaska Airlines 50 Cal.4th 860 (2010), where the California Supreme Court held that a federal employee’s retaliation claim was precluded. The agency argued that Murray indicated that the California Supreme Court would disagree with Taswell.

The Ninth Circuit rejected this argument. First, the court stated that Murray was highly specific to the factual and legal circumstances of the case. It did not purport to apply to all administrative decisions, especially in light of federalism issues at play in Murray but absent in Bahra. Second, Murray analyzed the first exception—the “sufficiently judicial character” exception—and not the legislative intent exception. Third, the Ninth circuit looked to California Supreme Court precedent more recent than Murray, including decisions on which Taswell relied, which suggested that the California Supreme Court would agree with Taswell. Accordingly, the Ninth Circuit ruled that the Department of Child and Family Services decision did not preclude Bahra from bringing his Section 1102.5 claim to court.

But it was not a total victory for Bahra; the Ninth Circuit ruled against him with respect to his Section 1983 claims. Bahra had not argued that giving preclusive effect to the Section 1983 decision would go against legislative intent, so the Ninth Circuit did not address the issue. Instead, the court looked exclusively to the judicial character of the proceeding and, finding it sufficient, held that the Section 1983 claim was precluded, affirming the lower court.

If you have suffered workplace retaliation for whistleblowing activity, contact Bryan Schwartz Law.

Supreme Court Decision Extends Protections Against Whistleblower Retaliation to Employees of Private Companies Providing Services to Public Companies

The United States Supreme Court issued a landmark decision today in Lawson, et al. v. FMR, LLC, et.al., expanding whistleblower protections under the Sarbanes-Oxley Act of 2002 (SOX) to employees of private companies who are subcontractors or contractors for public companies. The eight-to-one decision, with a majority opinion delivered by Justice Ginsburg, is the first describing the scope of protection from retaliation for securities-fraud whistleblowers. In its decision, the Court highlighted that employees of contractors and subcontractors for public companies, including lawyers, mutual fund managers, and accountants, have often been exposed to retaliatory measures such as discharge and demotion for engaging in whistleblower activities, due to gaps in federal whistleblower protections. No more.

The Court granted certiorari to address the specific question of whistleblower protections in SOX applied to employees of privately-held companies working as contractors and subcontractors for public companies. SOX was enacted to safeguard investors in public companies and restore trust in financial markets. The specific provision of the Act, § 1514A, states that “no [public] company…, or any officer, employee, contractor, subcontractor, or agent of such company, may discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of [whistleblowing or other protected activity].” The case arose on the heels of Senate reports and investigations of the Enron scandal showing widespread retaliation against investment bankers, brokers, and accounting firm professionals who raised concerns of potential securities fraud. As the Court explained, "The Sarbanes-Oxley Act contains numerous provisions aimed at controlling the conduct of accountants, auditors, and lawyers who work with public companies. [Citations] Given Congress’ concern about contractor conduct of the kind that contributed to Enron’s collapse, we regard with suspicion construction of §1514A to protect whistleblowers only when they are employed by a public company, and not when they work for the public company’s contractor." Slip Op. at 3.

Plaintiffs, Julie Lawson and Jonathan Zang, are former employees of different FMR, LLC, subsidiaries. FMR is a private company that contracts to advise and manage the Fidelity family of mutual funds. While the mutual funds are public companies, as is common in the mutual fund industry, the funds have no employees themselves who would otherwise act as gatekeepers to detect or deter fraud. Lawson alleged that she suffered adverse actions culminating in constructive discharge as a result of raising concerns that her employer overstated expenses associated with operating mutual funds. Zang also alleged that his employment was terminated after reporting inaccuracies concerning certain funds managed by the company in a statement intended for the SEC.

The Supreme Court decision today reverses the First Circuit Court of Appeals’ split decision holding that the term "employee" in § 1514A whistleblower protections refers only to employees of public companies and does not cover a contractor’s own employees. The decision paves the way not only to prevent future fraud on investors in public companies, but also provide meaningful remedies to whistleblowers subjected to retaliatory measures by their employers - whether such are publicly-held companies or not.

Employees of privately-held contractors and subcontractors exposing securities fraud in public companies may now seek remedies such as reinstatement or backpay for retaliation resulting from protected whistleblower activity. If you have experienced retaliation as a result of whistleblowing activity at your employer that contracts or subcontracts for a public company, contact Adetunji Olude.

Ninth Circuit Protects Immigrant Workers

In an era of increasing uncertainty and danger for immigrants, two recent Ninth Circuit decisions demonstrate a commitment to protecting all workers’ rights. 

In April, the Ninth Circuit held that conditioning an employee’s reinstatement on his or her immigration status violates California public policy. In Santillan v. USA Waste of California, Inc., 853 F.3d 1035 (9th Cir. 2017), Gilberto Santillan was a residential garbage truck driver for 32 years. In 2011, Santillan filed a formal grievance through his union asserting that he was wrongfully terminated. In a settlement, USA Waste agreed to reinstate Mr. Santillan, provided that he provide proper work authorization pursuant to the 1986 Immigration Reform and Control Act (IRCA). Santillan could not provide an expiration date for his work authorization, and six days later USA Waste again terminated Santillan, citing his failure to comply with IRCA. 

Santillan subsequently filed a complaint alleging wrongful termination in violation of public policy. The Ninth Circuit reversed summary judgment for USA Waste, holding that the employer failed even to provide a legitimate non-discriminatory reason for termination. The court first reasoned that Mr. Santillan was exempt from IRCA’s requirements, because it only requires authorization for new employees hired after 1986. Mr. Santillan was hired in 1979 and was reinstated, not newly hired. The court then held that the 2011 settlement agreement violated California public policy, reasoning that an employer cannot condition reinstatement on immigration status. 

Last month, the Ninth Circuit held that an employer’s attorney can be liable for retaliation where they report an employee to Immigration and Customs Enforcement (ICE). In Arias v. Raimondo, No. 15-16120, 2017 WL 2676771, (9th Cir., June 22, 2017) José Arnulfo Arias filed claims against his employer, Angelo Dairy, for violations of the Fair Labor Standards Act (FLSA) in 2006. The state court trial was set for August 2011. In June 2011, Defendant’s attorney, Anthony Raimondo notified ICE that Arias may be undocumented, to get him deported. Raimondo had reported employees to ICE in at least five other cases. Arias then filed a FLSA retaliation complaint against both Angelo Dairy, which settled prior to the Ninth Circuit decision, and Raimondo. The Ninth Circuit held that Raimondo could be held liable under FLSA for retaliation, reasoning that retaliation provision broadly refers to any person and expressly extends to legal representatives. It further reasoned that the purpose of anti-retaliation provisions is to ensure that workers can exercise their rights without interference. 

These decisions are important victories for immigrant workers and their advocates. In California, immigrant workers – even undocumented workers – have the same entitlement to employment protections as other workers. Though dangers remain for immigrant workers, the Ninth Circuit has created stronger protections by removing barriers to reinstatement for immigrant workers. Employers and their agents may also be liable if they report employees to ICE after they assert their rights.

Whistleblowers—Public Heroes in an Uncertain Time for Workplace Safety

This morning, Dr. Rick Bright is testifying on Capitol Hill. Dr. Bright is known for being fired from the Biomedical Advanced Research and Development Authority for opposing the use of a drug falsely touted by Trump as a possible coronavirus treatment. His testimony today, which is in progress during this writing, has emphasized safety measures he believes the federal government should be making to prevent the spread of the deadly disease.

The current COVID-19 pandemic has heightened the importance of whistleblowers such as Dr. Bright reporting workplace safety like never before. Workers who still must report to a physical work site depend on their employers taking serious and effective measures to protect them. While many conscientious employers engage in such safety practices, others have thrown their employees under the bus, forcing them to risk their health for the companies’ profits—literally profiting off the lives of their workers.

Perhaps the most famous heroic COVID-19 whistleblower is China’s Li Wenliang, a doctor who sounded the alarm about the seriousness of the virus in its early days only to be sanctioned by the Chinese government and later die of the illness. Beyond Dr. Bright, the United States has seen its fair share of whistleblowing as well, especially concerning unsafe working conditions. Holding employers accountable for workplace safety is paramount during the pandemic, given that the workplace is one of the places where the virus is most likely to spread. Whistleblowing employees are necessary to bring employer safety inadequacies to light.

But despite the importance of whistleblowing during these times—or perhaps because of it—the government and private companies have fired employees in retaliation for blowing the whistle. Like the federal government's termination of Dr. Bright, Amazon, one of the most powerful and wealthiest companies in the world, fired several warehouse employees, including Staten Island’s Christian Small, for raising concerns about workplace safety and attempting to organize a response. This prompted former Amazon VP Tim Bray to resign “in dismay” because of the company’s decision to fire whistleblowers. Bray noted in an open letter that the six or so whistleblowers who faced retaliation from Amazon at that time were all people of color, women, or both. At the end of the letter, Bray decried power imbalances in the workplace, writing that “warehouse workers are weak and getting weaker…[s]o they’re gonna get treated like crap….” Amazon has profited during the pandemic.

Other employees throughout the country have similarly faced retaliation for raising workplace safety concerns. An emergency room physician in early hard-hit Washington State, Ming Lin, was fired for giving a newspaper interview about his concern that his employer had inadequate testing and protective equipment. Navy aircraft carrier captain Brett Crozier was fired for writing a letter about the Navy’s failure to provide him with sufficient means to combat the virus (he later contracted it). Nurse Lauri Mazurkiewicz was fired for emailing her colleagues that that N-95 masks were more effective at protecting against the disease’s spread than the masks provided by the hospital where she worked, then wearing an N-95 mask to work—she has since filed a lawsuit.

It is especially wrong for employers to retaliate against whistleblowers, given the historic state of unemployment—jobs are precious and hard to come by for terminated whistleblowers trying to feed their families. Now more than ever, whistleblower protection laws are vital, as work environments have become less safe at employment sites where employees’ health is not taken seriously enough. For instance, meat packing plants, deemed essential by the Trump administration and already dangerous working environments even in the absence of COVID-19, are hotbeds for the virus to spread, leading to public concern and at least one federal lawsuit. Nursing homes, especially those who serve indigent or lower-class senior citizens, have been hit hard. Essential retail stores, such as grocery outlets, have also been seen suddenly dangerous working conditions. 

Employees at workplaces like these are understandably concerned about workplace safety. Consequently, thousands of employees have courageously filed workplace safety complaints against their employers related to the coronavirus. These complaints have involved poor safety practices such as failing to provide personal protective equipment like gloves, masks, disinfectant, and cleaning supplies; failing to follow or implement social distancing requirements; forcing employees to work alongside sick co-workers; and requiring employees to report to work on-site in non-essential sectors. Recently, the CDC revised its guidelines to allow asymptomatic workers to continue working, which may lead to further workplace safety issues as asymptomatic carriers infect their coworkers.

Concerned employees can file workplace safety complaints with the federal Occupational Safety and Health Administration (OSHA), the corresponding California state agency Cal/OSHA, or their local county health departments if the county has a separate health order in place. 

Now, more than ever, we need heroes willing to step forward. One of the only good bits of news in this pandemic has been that heroes are emerging like never before to protect their colleagues, themselves, and their families.  

Do not let the fear of unlawful retaliation stop you from blowing the whistle. If you face workplace retaliation for raising safety concerns, contact Bryan Schwartz Law. 

Attorney’s Fees Awarded When Whistleblower Acted in the Public Interest

Have you ever blown the whistle on illegal activity in the workplace and then been retaliated against? Did you have trouble finding a lawyer who would represent you? California protects whistleblowers, but defendants sometimes argue that whistleblower retaliation claims under California Labor Code section 1102.5 (California’s general whistleblower statute) do not require defendant to pay the whistleblower’s attorney’s fees. Attorney’s fees awards are critical to helping whistleblowers get their day in court. Because most people can’t afford to hire an attorney on an hourly basis, laws that allow for the recovery of attorney’s fees allow attorneys to take cases on a contingency basis – the attorney only gets paid if you get paid. An award of attorney’s fees also means that the attorney’s payment doesn’t have to come out of the amount you recover. You get your recovery and the attorney gets her fees, without the attorney having to take her fees out of your recovery (typically at least 1/3 to 40% of your recovery).

Attorney’s fees awards are available under California Code of Civil Procedure section 1021.5 where the case involves the enforcement of an important right affecting the public interest if: (1) a significant benefit, monetary or non-monetary, has been conferred on the general public or a large class of persons; (2) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate; and (3) such fees should not in the interest of justice be paid out of any recovery (i.e., the attorneys should not be paid out of what the employee recovers). The question is, does a violation of 1102.5 warrant the recovery of attorney’s fees as outlined in 1021.5? Can whistleblowers recover their attorney’s fees?

The California Court of Appeals recently said yes.

In Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, two employees blew the whistle on illegal activity happening in the City of Los Angeles’ Department of Transportation. Todd Hawkins and Hyung Kim were hearing examiners who reviewed parking violations. When people challenged parking tickets, Mr. Hawkins and Mr. Kim decided whether those people had in fact violated parking laws or if the City had gotten it wrong and needed to issue a refund for the fines they had charged.

Both men complained internally that their supervisor was pressuring them to change decisions from “not liable” to “liable” – in other words, saying people had violated parking laws when they hadn’t and cheating people out of refunds for the fines they had paid. Both men were then fired for speaking up.

They sued for whistleblower retaliation under 1102.5, the California Bane Act, and other claims. They also filed claims with California’s Labor and Workforce Development Agency seeking PAGA (Private Attorneys General Act) penalties. The matter went to a jury trial, and the jury found in the employees’ favor on their 1102.5 and Bane Act claims, awarding Hawkins $238,531 and Kim $188,631 in damages. The trial court then assessed a $20,000 PAGA penalty, and subsequently awarded the employees $1,054,286.88 in attorney’s fees. The City appealed.

The Court of Appeals upheld the jury’s verdict, upholding the award of attorney’s fees for whistleblower retaliation under 1102.5. As the Court explained,

Here, the City argues that a significant benefit was not conferred on the public because all the action did was remedy retaliation for whistleblowing. However, the City ignores the trial court’s finding that the action also conferred a significant public benefit because the public is entitled to fair hearings with respect to parking citations. The Vehicle Code entitles the public to “an independent, objective, fair, and impartial review of contested parking violations.” (Veh. Code, § 40215, subd. (c)(3).) Plaintiffs’ action revealed that, for years, the City had been pressuring, sometimes successfully, hearing examiners to change decisions, usually to find that refunds were not warranted. In short, the public had been deprived of independent and impartial hearings. Instead, the City undermined the process provided by the Vehicle Code to generate revenue.

Mr. Hawkins and Mr. Kim were whistleblowers under 1102.5 who satisfied the requirements under 1021.5 of acting in the public interest, warranting their recovery of attorney’s fees.

                The Court of Appeals also upheld the award for attorney’s fees for Mr. Hawkins’ and Mr. Kim’s PAGA claim. This is a big deal: in an unpublished portion of the opinion, the Court explains that an individual whistleblower under 1102.5 can still be representative of a broader group of people, as required by PAGA, when that individual whistleblower is furthering the public interest. The Court distinguishes another case, Kahn v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, where the plaintiffs’ PAGA claim was denied because it wasn’t representative:

 We express no opinion as to the correctness of Kahn’s holding. Whether correct or not, we do not interpret Kahn so literally as to hold that a plaintiff whose prefiling notice uses the incorrect pronoun—I instead of we and my instead of our—fails to comply with the Labor Code’s administrative procedures. Rather, we must determine whether the prefiling notice, as a totality, gave the requisite notice. Plaintiffs’ prefiling notices are materially different than the notice in Kahn. Their notices referred to complaints that Walton-Joseph had hearing officers change written decisions from not liable to liable. Hawkins referred to Walton-Joseph’s actions “in coercing employees, including Claimant to change their decisions.” (Italics added.) Similarly, Kim referred to another hearing examiner who had complained to government officials about the conduct. Thus, the notices here expressly referred to conduct not limited to the individual complainants. They complained about conduct that impacted them and fellow hearing examiners, as well as the public. We therefore conclude that plaintiffs complied with section 2699.3 [PAGA].

While attorneys cannot cite to the above portion of the Hawkins opinion, it’s worth noting the Court’s implicit suggestion to use the pronoun “we” in PAGA claims to forestall any argument from the defendant employer that the plaintiff does not have a viable PAGA claim.

Hawkins strengthens whistleblower protections, making it more likely that whistleblower cases will be brought to court – and therefore making it more likely that the harms whistleblowers uncover will be remedied. Hawkins will be a key case moving forward to combat public corruption and the silencing of those who dare to speak truth to power.

Bryan Schwartz Law has written about attorney’s fees for whistleblower retaliation and PAGA before. If you believe that you were retaliated against for exposing illegal activity at your workplace, please contact Bryan Schwartz Law today.

California Courts Split on Exhausting Whistleblower Claims Under Labor Code

Better to exhaust than be sorry.

This week, California’s Third Appellate District issued a decision dealing with whistleblower-retaliation claims under Labor Code that begs for a judicial or legislative response. In MacDonald v. State of California, Case No.C069646, the court held that an employee must exhaust the administrative remedy set forth in section 98.7 before filing suit in superior court for retaliatory discharge in violation of Labor Code sections 1102.5 and 6310. The court recognized that its decision directly and deliberately conflicts with the Second Appellate District’s decision in Lloyd v. County of Los Angeles (2009) 172 Cal. App. 4th 320, which holds that no such requirement exists.

Labor Code section 98.7 provides a statutory scheme that allows any person to file a complaint with the Labor Commissioner if that person “believes that he or she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner.” The plain language of the code is discretionary, allowing that an aggrieved employee “may file a complaint” within six months of the alleged adverse action.

Over the years, federal district courts have taken conflicting positions on whether an employee who has been a victim of whistleblower retaliation under section 1102.5 must first file a complaint with the Labor Commissioner under section 98.7. See MacDonald, Slip op. 6, n.4. But federal courts can only speak persuasively regarding the requirements of California Law.

Some employees and their counsel have treated the complaint process as permissive, and for good reason. In 2007, the DLSE issued an opinion letter advising that: “The DLSE’s position is that the wiser course is not to require exhaustion of Labor Code section 98.7 procedures prior to raising a statutory claim in a civil action.” Later, in Lloyd v. County of Los Angeles (2009) 172 Cal. App. 4th 320, the Second Appellate District held that “[t]here is no requirement that a plaintiff pursue the Labor Code administrative procedure prior to pursuing a statutory cause of action” for retaliation; rather, section 98.7 “merely provides the employee with an additional remedy, which the employee may choose to pursue.”

According to the court in MacDonald, the Second Appellate District got it wrong in Lloyd (and by extension, so did the DLSE in its 2007 opinion letter), by failing to consider Campbell v. Regents of University of California (2005) 25 Cal.4th 311. The Third Appellate District held:

The rule of exhaustion of administrative remedies is well established in California jurisprudence. “In brief, the rule is that where an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Campbell, supra, 35 Cal.4th at p. 321, quoting Abelleira [v. District Court of Appeal (1941)] 17 Cal.2d [280], 292). This is so even where the administrative remedy is couched in permissive, as opposed to mandatory, language. (See Williams v. Housing Authority of Los Angeles (2004) 121 Cal.App.4th 708, 734.) Here, an administrative remedy is provided in section 98.7. Thus, in accordance with Campbell, we conclude that plaintiff was required to exhaust that remedy prior to pursuing the underlying action.

Slip op. at 6.

With conflicting decisions in the Third and Second Appellate Divisions, cautious employees and counsel will take care to file a complaint with the Labor Commissioner before they consider filing section 1102.5 or 6310 claims in court. The DLSE can expect to process an increased volume of retaliation complaints going forward.

The Supreme Court or the State Legislature would be wise to speak decisively on the issue of exhaustion raised by MacDonald and Lloyd, as well as related issues arising from the conflict, so as to provide clarity for employees, lower courts, and the DLSE.

NOTE: Nothing in this posting is intended to provide legal advice about your particular case and it does not form an attorney-client relationship with any reader. It is intended to be information about a subject of general interest for the general public. In order for Bryan Schwartz Law to represent you, you must have a signed representation agreement with the firm.

A Victory for Whistleblowers in the Workplace

California’s workplace protections for whistleblowers who expose public corruption got a boost from the Court of Appeals this month in Hoeper v. City & County of San Francisco. The court upheld a $5 million jury verdict for whistleblower retaliation for former San Francisco deputy city attorney Joanne Hoeper, broken down into $2.4 million for attorney’s fees and $2.6 million in damages for lost earnings and emotional distress.

Back in 2011, Ms. Hoeper began to investigate what she believed to be a kickback scheme happening within the City Attorney’s office. Ms. Hoeper alleged that the City of San Francisco was awarding millions of dollars in contracts to private contractors to fix sewers based on fraudulent claims. When her investigation pointed to the involvement of attorneys within the City Attorney’s office, she was retaliated against: demoted, transferred, and fired. A unanimous jury in 2017 ruled in her favor regarding whistleblower retaliation, and now a California court of appeals has upheld the jury’s verdict. It’s an important reminder that whistleblower retaliation is illegal – no matter if your employer is a private or public entity.

            Bryan Schwartz Law has written about whistleblower retaliation before. If you have blown the whistle at work and then were retaliated against, contact Bryan Schwartz Law today.

Kasten v. Saint-Gobain - Is the United States Supreme Court Becoming Pro-Employee?

There is a lot of talk about the Supreme Court’s pro-business bent during the current Chief Justice’s tenure. For example, see “Justices Offer Receptive Ear to Business Interests,” The New York Times, December 18, 2010 (http://www.nytimes.com/2010/12/19/us/19roberts.html). A leading Supreme Court advocate for business interests, Carter G. Phillips, who represents the Chamber of Commerce and argues more Supreme Court cases than any active lawyer in private practice, is said to have boasted recently: “I know from personal experience that the chamber’s support carries significant weight with the justices….Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them….” (Republished in http://www.dailykos.com/story/2011/03/14/956322/-The-SCOTUS,-the-Chamber-of-Commerce,-and-a-Code-of-Conduct). The low point for those concerned with corporate excesses infecting the Supreme Court was the January 10, 2010, Citizens United v. Federal Elections Commission decision (http://www.law.cornell.edu/supct/html/08-205.ZS.html), holding that election laws cannot restrict independent campaign expenditures by corporations, construing such as an improper restriction on free speech precluded by the First Amendment. The Citizens United case was essentially grounded in the notion that corporations are entitled to protection of their individual liberties, like human beings.

But, notwithstanding the early returns, so to speak, we should be careful not to judge the Roberts court too soon. People change…maybe. In any event, in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011) (http://www.supremecourt.gov/opinions/10pdf/09-834.pdf), the Supreme Court got one right, when they very easily could have gotten it wrong, if the Court was indeed inherently skewed to corporations. While I would like to see the result as a product of brilliant advocacy by my former firm, Nichols Kaster (www.nka.com), who represented the Petitioner – which, no doubt, it was – I would like even more to see the result as evidence of fairness toward America’s workers that will manifest itself in important upcoming decisions. Time will tell.

In Kasten, the employee brought an anti-retaliation suit against his former employer, Saint-Gobain, under the Fair Labor Standards Act of 1938 (FLSA), which provides minimum wage, maximum hour, and overtime pay rules; and which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the FLSA, 29 U. S. C. §215(a)(3). (Saint-Gobain had violated the FLSA by placing timeclocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear.)

The employee said he was discharged because he orally complained to company officials about the timeclocks. The District Court and Seventh Circuit rejected the employee’s claims, concluding that the FLSA’s anti-retaliation provision did not cover oral complaints – i.e., that orally complaining is not “fil[ing] a complaint” which engenders the statute’s protection. The Supreme Court vacated the summary judgment against the employee, and remanded to the Seventh Circuit, with not only Justice Kennedy, but Justices Roberts and Alito in the majority, along with Justices Ginsburg, Sotomayor, and Breyer. (Kagan sat out.) Only Justices Scalia and Thomas voted to affirm the Seventh Circuit’s narrow – but not insane – construction of the FLSA, i.e., that the protection from retaliation against a worker who has “filed any complaint” only relates to written complaints.

The Supreme Court found that there was at least one dictionary definition which allowed the possibility that the term “file” a complaint encompassed an oral complaint, stating, “This possibility is significant because it means that dictionary meanings, even if considered alone, do not necessarily limit the scope of the statutory phrase to written complaints.” This was so, even though “[f]ilings may more often be made in writing.” In other words, the Supreme Court grabbed hold of any possibility that the statute could be construed in a way to benefit employees, and chose to construe it in this most protective manner.

Likewise, the Court acknowledged that to “file any complaint” was not language as broad as other language in statutes, which expressly encompassed oral complaints, but admitted a different possibility – “that Congress did not believe the different phraseology made a significant difference in this respect.” The Court concluded, “The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” Again, the Supreme Court gave the employee, Kasten – and all employees – the benefit of the doubt.

In law school, we learn that on summary judgment, the non-moving party is supposed to receive this sort of benefit of all presumptions, and that our system of justice favors the right of parties to be fully and fairly heard. In practice, however, employees’ advocates have wondered if the Supreme Court might be moving toward summary dispositions more often against our clients. In Kasten, though it was not a case about the summary judgment standard, the High Court also reinvigorated the idea of giving plaintiffs a chance to be heard.

Most importantly, the Court rested its holding on the underlying purpose of the FLSA, asking rhetorically, “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?” The Court suggested that “broad rather than narrow protection to the employee” was intended under the FLSA. While holding that employers need to be given “fair notice” of wage complaints to serve as a condition precedent for a retaliation complaint, the Court held that the standard can be met by oral complaints, as well as by written ones.

Predictably, Justices Scalia and Thomas provided a lengthy dissent giving employers the way out – going so far as to argue that “complaints” only cover an “official grievance filed with a court or an agency, not oral complaints.” Their interpretation ignores the purpose of the FLSA and the realities of the workplace – where most workers subject to wage violations are unsophisticated, and can suffer reprisal long before they make it to a court or government entity with their concerns.

But, the importance of Kasten is not that two justices on the farthest right margin of the Court did not side with employees – but rather, that all of the other justices did the right thing. In the coming months, the Court will decide important cases for employees – the AT&T Mobility v. Concepcion and the Wal-Mart v. Dukes matters, which will resolve, for all practical purposes, to what extent class actions are available to employees (and others) whose rights have been violated. Will employees have the opportunity to level the litigation playing field with employers possessing far superior resources, preventing employers from dividing and conquering, and limiting the windfall employers receive because so few employees have the resources and courage to step forward alone? Indeed, the Court heard oral argument in the Wal-Mart v. Dukes case last week, and Justice Scalia again was transparent in his disdain for the employees’ case. Let us hope that, once again, in deciding these cases, as in Kasten, Justices Scalia and presumably Thomas will be in the dissent, and the rest of the Supreme Court again will consider, first and foremost, how workers in America will be affected every day by the decisions they render.