Employment Newsletter (First Quarter 2013)

Uncooperative Employees are not Protected from Discipline

In a favorable decision for employers, a Court of Appeal determined that an employee can be terminated for being misleading and uncooperative during an employer's internal investigation of discrimination claims. In McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510., after a female employee complained that her supervisor was discriminating against her based on her gender and sexual orientation, the employer initiated an investigation led by an outside female attorney. The investigation revealed that the supervisor did not discriminate against the female subordinate based on gender or sexual orientation, but he had violated the employer's policies by telling jokes and making remarks based on race or sex. The investigator also concluded that the supervisor was uncooperative and appeared to have intentionally misrepresented some facts during the course of the investigation. Based on the investigator's findings, the supervisor's employment was terminated. The supervisor then sued for wrongful termination in violation of public policy, claiming his termination was the result of bias against men and in retaliation for his participation in the internal investigation. He further alleged he was defamed when the employer's vice-president of human resources told another employee the reasons for his termination. Ultimately, the appellate court affirmed the trial court's order granting summary judgment in favor of the employer. This decision provides useful guidance for employers:

Being uncooperative or deceptive during an employer's internal investigation is not protected activity. In fact, "such conduct is a legitimate reason to terminate an at-will employee." "No inference of discrimination can reasonably be drawn from the mere lack of conclusive evidence of misconduct." An employee must present actual evidence that the employer's motivation was illegal, not just unreasonable. Statements by management and coworkers to other coworkers explaining why an employee was disciplined are conditionally privileged. Such statements can be considered defamatory only if they were made with "malice" — i.e., that the employer made a statement in reckless disregard of the employee's rights and that the employer either did not reasonably believe them to be true. DFEH: New Procedures for Investigation and Litigation

Effective January 1, 2013, the California Department of Fair Employment and Housing (DFEH) has changed the way it investigates and litigates employment discrimination complaints. These changes affect any employer with five or more employees working in California. The most significant changes are as follows:

The new law eliminates the Fair Employment and Housing Commission. The Department will now have a Fair Employment and Housing Council, which will consist of seven members appointed by the Governor, who will assume the former Commission's regulatory functions. The law ends administrative adjudication of complaints. The DFEH has authority to file a civil action directly in the superior court. For any accusations currently pending before the former Commission, the DFEH may remove it to superior court, though the Office of Administrative Hearings has been retained to adjudicate the few remaining administrative actions. The administrative investigative process now proceeds as follows: after a Charge of Discrimination is filed, the complainant can request an immediate right to sue, or the DFEH will investigate the Charge. If the DFEH finds no merit to the Charge, it will be dismissed. If the DFEH finds that the Charge has merit, the matter will be directed to mandatory dispute resolution, free of charge, in the DFEH's internal Dispute Resolution Division. If the matter is not...