Overall, employers fared well in the outcome of published decisions related to various employment claims this year (although there were cases that went to employees).  Some of the notable cases are discussed below.

Fitness for Duty

A university professor unsuccessfully sued his employer for violations of the California Fair Employment and Housing Act (FEHA), the Unruh Civil Rights Act, and the Confidentiality of Medical Information Act.  After a number of faculty complained that the professor’s actions were frightening, such as yelling, physical confrontation, and verbal threats, the university required the professor to obtain a fitness for duty examination.  When he refused, the university terminated his employment.  The FEHA allows an employer to require a physical or mental examination if it is job-related and consistent with business necessity.  A jury found in favor of the university, and on appeal, the appellate court agreed that the university lawfully terminated the professor’s employment for his refusing to participate in the fitness for duty exam. (Kao v. University of San Francisco (2014).)

A county employee sued for alleged violation of the Family Medical Leave Act (FMLA) when she was required to submit to a fitness for duty examination after she returned from an FMLA leave.  The employee had demonstrated a history of mental instability and poor decision making prior to taking leave for her mental condition.  The employee was scheduled to return to work; however, prior to her return, she was placed on paid administrative leave and informed that she needed to participate in a medical reevaluation and that failure to do so could result in termination.  The employee did not appear for the evaluation and was terminated.  She contended the FMLA prohibited the reevaluation; however, the court disagreed finding the employer could return an employee to work after FMLA leave and seek a fitness for duty if it is not satisfied with the employee’s health care provider’s certification. (White v. County of Los Angeles (2014).)

First Amendment

A county employee alleged she was retaliated against for exercising First Amendment speech rights after she was subject to involuntary workplace transfers and internal investigations, among other actions.  The employee contended the adverse employment actions resulted from her protected speech related to union activity.  The court agreed that a reasonable jury could find the adverse employment actions were retaliation for protected speech and remanded the case for further evaluation of the employee’s claims. (Thomas v. County of Riverside (9th Cir. 2014).)

A university professor alleged the administration retaliated against him for exercising his First Amendment rights in distributing a pamphlet and drafts of his in-progress book.  He claimed to have received poor performance evaluations and discipline because of those written materials.  The pamphlet discussed plans to separate two faculties of study in connection with restructuring of the liberal arts college.  The standard for evaluating a public employee’s speech was governed primarily by Pickering v. Board of Education from 1968 until 2006 when the U.S. Supreme Court decided Garcetti v. CellabosPickering set forth a general balancing test for evaluating public employee speech claims, and Garcetti clarified the formulation by holding that public employee speech pursuant to “official duties” is not protected at all.  Garcetti left open whether its rule applied to certain academic speech.  In deciding the university professor’s case, the U.S. Court of Appeals for the Ninth Circuit held the appropriate standard for evaluating speech related to “scholarship or teaching” is Pickering,  and that Garcetti’s “official duties” rule does not apply to such speech.  The Ninth Circuit concluded the professor’s pamphlet was potentially protected speech under Pickering and remanded the case for further proceedings. (Demers v. Austin (9th Cir. 2014).)

Family Medical Leave Act

An employee was terminated for violating company policy – a “three day no-show, no call” rule — when she failed to return to work after a vacation.  The employee asked and was allowed to use two weeks of vacation to go to Guatemala to care for her ailing father.  Shortly after the initial request, she requested additional unpaid leave at the end of the two weeks but her supervisor said “no.”  The employee did not return to work until after the initial two weeks, and she was then terminated for failing to return to work.  She alleged her employer violated her rights under the FMLA because the additional leave she sought qualified as FMLA leave.  The Court held that the employer, however, is not required to designate the leave as FMLA when the employee expressly requested that it not be.  Here, the employee asked for vacation and did not ask for FMLA leave either at that time or after that; as a result, the jury determined the employer did not violate the FMLA, and the Court of Appeals did not overturn the determination. (Escriba v. Foster Poultry Farms, Inc. (9th Cir. 2014).)

FEHA Statute of Limitations

An employee who complained about sexual harassment eventually resigned her employment and sued her employer, asserting three claims under FEHA.  The employer argued the lawsuit was untimely because it was filed more than six months after the date of the employment action.  The application for employment signed by the employee had provided that the employee must file any claim or lawsuit within six months after the date of the employment action.  The court held a limitations period shorter than provided by statute under FEHA is against public policy and unenforceable. (Ellis v. U.S. Security Assoc. (2014).)