In Scott v. Gino Morena Enterprises, the Ninth Circuit clarifies that the statute of limitations period for filing a Title VII suit commences after the EEOC issues a right-to-sue notice.

Plaintiff Scott sued her employer in federal court, alleging sexual harassment and retaliation at a barbershop at Camp Pendleton where she worked. She brought suit under Title VII of the Civil Rights Act of 1964. Under Title VII, a plaintiff must exhaust her administrative remedies by filing a charge with the Equal Employment Opportunity Commission (the “EEOC”) or a qualifying state agency (such as DFEH) and receiving a right-to-sue notice. After exhausting administrative remedies, a plaintiff has 90 days to file a civil action.

Scott’s employer contended that she became eligible to receive a right-to-sue notice from the EEOC 180 days after the filed her charge, and that the 90 day clock started ticking 180 days after Scott filed a charge with the EEOC. Scott contended the 90 day clock didn’t start ticking until she actually received her right-to-sue notice. The court had granted summary judgment for Scott’s employer on the basis that her claims were time-barred as she had waited more than 90 days after she became eligible to receive a right-to-sue notice from the EEOC. Scott appealed the ruling, and the Ninth Circuit reversed (in part) the summary judgment ruling, holding that the 90 day clock doesn’t begin until the right-to-sue notice is received.

One concern about starting the clock upon receipt of the EEOC notice (as opposed to 180 days after filing the charge) is that the employer shouldn’t have to wait years to find out if litigation will begin. Evidence can be lost as witnesses’ memories may fade or they may move away. While an employee can rely on this decision in waiting to sue, she can’t wait forever. If appropriate, an employer can still assert arguments about unreasonable delay (doctrine of laches).

A second Court of Appeal has ruled that discrimination against a person’s sexual orientation is a civil rights violation, in an unusual case where two federal bodies, the EEOC and the Justice Department, took opposite sides. In Zarda v. Altitude Express, Inc. et al, the federal appeals court in New York agreed with the EEOC that bias against sexual orientation necessarily discriminates on the basis of sex. While the employer, Altitude Express, Inc. is uncertain whether it will appeal the decision, it appears likely that this issue will ultimately head to the Supreme Court, because a third appellate court has, based on 1979 precedent, ruled that sexual orientation discrimination is not included in the Title VII anti-discrimination ban.

There was a time when a work day ended at 5:00.  When the little hand reached 5 and the big hand found its way to 12 two things happened – workers headed home and bosses stopped paying their hourly employees.  How times have changed.   In the age of smart phones and constant e-mail connection a new issue arises – if an hourly employee is performing work from their personal phone does an employer have to chip in on the bill?

A large number of small businesses in California do not have any sort of employee cell phone policy in place and are unaware that they may be required to reimburse their employees for at least a portion of their personal cell phone bills.  As illustrated below, this is quickly becoming yet another issue California small business owners need to start thinking about.

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In the recent decision¹, a California Court of Appeal held that when an employee uses their personal cell phone for work-related calls, Labor Code section 2802 requires the employer to reimburse them.  In reaching this conclusion, the Court of Appeal found that certain provisions of the Labor Code required reimbursement by employers for “all necessary expenditures or losses incurred by the employee in direct consequence” of their work, or in “obedience to the directions of the employer.”   This would be true despite the fact an employee is paying for an unlimited data package.  The Court held that despite the form of cell phone plan the employee selected or is paying for on their own, employers must pay some reasonable percentage of the employee’s cell phone bills – if not they would be receiving a windfall because it would pass on this business expense directly to the employee.

While the dust has yet to settle on the Cochran decision it appears that employers in California are required to compensate employees who use their personal phones for work purposes.  This is true even if they have unlimited data/minutes.

This decision creates the potential for new areas of litigation.  In an effort to avoid this, businesses should take a close look at their cell phone polices to ensure they are in compliance with the Labor Code (or, if you do not have a cell phone policy, prepare one!).  If an employee is expected to be accessible by phone or email outside of work – or if they are required to carry a cell phone as a part of the job – then it is necessary either to provide a work device or to pay a reasonable percentage of their bill.


¹Cochran v. Schwan’s Home Serv., Inc., 228 Cal. App. 4th 1137

The First Circuit Court of Appeals issued an opinion last week, overturning summary judgment for an employer in a wage and hour case, based on the absence of a comma in Maine’s overtime statute.  An exemption to Maine’s overtime law provides that overtime protections do not apply to employees engaged in the “canning, processing, freezing, drying, marketing, storing, packing for shipment or distribution of …  perishable foods.”   Some dairy delivery drivers, who do not engage in packing of any kind, sued their dairy employer for overtime, contending the exemption was inapplicable because they interpreted the clause “packing for shipment or distribution of” as one related phrase.  The employer successfully argued to the trial court that the clause at issue concerned two distinct activities: 1) packing for shipment; and 2) distribution.  According to the dairy, because delivery drivers engage in distribution, they were exempt from the overtime protections and were not paid overtime.  The Appellate Court found the statute to be ambiguous as it was unclear if distribution was the last in a series (distribution) or a modification of the clause that was last in the series (packing – for shipment or distribution).  Without the comma to make it clear that employees engaged in distribution were exempt, the judgment was reversed and the drivers are now permitted to proceed with their suit seeking millions in back overtime wages.

2000px-Virgola.svgIf you are a punctuation enthusiast, a link to the 29 page opinion with the Court’s analysis of grammar and punctuation is here:

http://media.ca1.uscourts.gov/pdf.opinions/16-1901P-01A.pdf