By: Micaela L. Neal

Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855.

As any employer who has had the “pleasure” of going through trial can attest, a fair amount of time is generally spent right before trial determining what evidence can come in, and what evidence must stay out.  (I.e. what pictures, emails, etc. does the jury get to see?)  Unfortunately for employers, it seems that the scope of admissible evidence just keeps getting wider.

In a recent case involving an employee’s claim of sexual harassment against a male supervisor, the plaintiff (a female employee) sought to introduce testimony at trial regarding text messages she claimed her supervisor had sent her, including sexually explicit writing, photos, videos and drawings.  The employee no longer had copies of the text messages, so she wanted to testify regarding what the messages said, and what the pictures were of.  (There was no evidence that she had purposefully deleted the messages.)

The trial court significantly limited the employee’s ability to testify regarding the text messages, restricting her testimony to her opinion that the text messages were sexual in nature, and to the emotional impact the messages had on her.  She was prohibited from testifying regarding what the text messages specifically said or what the pictures depicted.  Her attorney was likewise prohibited from asking the supervisor specific questions about the messages.  The employer prevailed at trial.

On appeal, the Court of Appeal found that the trial court had abused its discretion by limiting the testimony regarding the text messages, and that the limitation had prejudiced the employee’s case. The Court found that because the messages themselves were unavailable, the employee should have been allowed to testify regarding what she remembered about their contents.  In so deciding, the Court noted that sexual harassment trials often involve “he said/she said” contests, and that text messages should be no different – the supervisor could always dispute the employee’s recollection of the messages and testify that the messages said something else.  Rather than constitute inadmissible hearsay, the Court also found that the text message content was an “operative fact” that could be admitted to prove that the supervisor sent a message that was both objectively and subjectively offensive, to establish one of the elements of the employee’s harassment claim.

The obvious concern for employers is that an employee will be able to testify dishonestly at trial regarding alleged text messages that were previously deleted.  Although such a scenario is not completely preventable, employers can still take steps to shore up sexual harassment policies (so that they include text messaging), provide sexual harassment training, and ensure that copies of text messages are included in discovery requests at the outset of litigation.

Micaela L. Neal is an attorney with Wanger Jones Helsley PC and practices in Fresno and Sacramento.  She regularly represents employers in wage and hour, discrimination and harassment actions.  This article is intended to notify our clients and friends of changes and updates to the law and provide general information.  It is not intended, nor should it be used, as legal advice, and it does not create an attorney-client relationship between the author and the reader.

By: Micaela L. Neal

Huff v. Securitas Security Services USA, Inc. (2018) 23 Cal.App.5th 745.

Employers have long been familiar with an employee’s ability to file an individual lawsuit against the employer for alleged Labor Code wage and hour violations.  Many years ago, the California Legislature gave an additional tool to employees when it passed the Private Attorneys General Act of 2004 (“PAGA”).  In essence, the Legislature deputized employees, allowing them to – in addition to bringing their individual claims against their employer – also bring claims on behalf of the government.   Ever since, PAGA claims have been typical “add-ons” to wage and hour lawsuits, and an additional tool in the employee’s bargaining belt.  The California Court of Appeal sharpened that tool with its recent decision increasing the number and types of PAGA claims an “aggrieved” employee may pursue.

In reaching its decision, the Court noted that PAGA was intended to benefit the general public, and to compensate for the State’s inability to prosecute all Labor Code violations itself.  The State still has a first right of refusal – an employee intending to file suit for PAGA claims must first provide written notice of alleged violations to the Labor and Workforce Development Agency. The Agency may occasionally elect to pursue the violations itself, but typically will send notice that it will not pursue prosecution of the violations, and that the employee may proceed under PAGA.

Under PAGA, the employee then pursues the recovery of penalties for the alleged violations.  The majority of any penalties recovered (75%) are paid to the Labor and Workforce Development Agency, but the remaining 25% of penalties that are recovered are paid to the employee pursuing the action – to compensate the employee for his or her efforts on behalf of the government.

InHuff v. Securitas Security Services USA, Inc., an employee filed PAGA claims for an alleged Labor Code violation that he was personally “aggrieved” by, but also included claims for Labor Code violations that he was not personally “aggrieved” by, but rather that his coworkers were “aggrieved” by.  The Court decided that this is an acceptable use of PAGA – so long as an employee is personally “aggrieved” by one violation, that employee may pursue PAGA claims against his or her employer for any other violations as well, and still retain 25% of any penalties recovered.

The Court reasoned that PAGA claims are intended to be representative – the employee may bring the action “on behalf of himself or herself and other current or former employees,” even though the other employees are not entitled to any portion of the penalties recovered. (In contrast, a class action would provide recovery to those other employees, and the employee filing suit would have to be personally aggrieved by each violation.) The Court emphasized that the point of PAGA is to assist the government, and acting as a representative of the government does not require an individual to personally experience each of his employer’s alleged violations.  Experiencing a single violation is enough to qualify the employee as a representative.  In an apparent attempt to give employers some reassurance, the Court noted that its holding does not change that an employee must prove at trial that a violation has occurred.

The takeaway is that – once again – California employers have a little bit more to worry about.  An embittered employee or former employee can bring a whole breadth of an employer’s wage and hour practices into question, regardless of whether that employee was actually affected by each and every such alleged violation.  Consequently, compliance with California wage and hours laws only continues to increase in importance.  Employers are encouraged to seek legal counsel to ensure that their wage and hour policies are up-to-date and in compliance with the Labor Code.

Micaela L. Neal is an attorney with Wanger Jones Helsley PC and practices in Fresno and Sacramento.  She regularly represents employers in wage and hour, discrimination and harassment actions.  This article is intended to notify our clients and friends of changes and updates to the law and provide general information.  It is not intended, nor should it be used, as legal advice, and it does not create an attorney-client relationship between the author and the reader.