The COVID-19 pandemic has brought with it uncertainty in all facets of life, employment not the least among them. We must appreciate that the employment relationship is the heart of the American economy—commerce needs business, business needs employees, employees need wages, wages fuel commerce. So, when a deadly new virus has governments bringing entire societies to a standstill like some dystopian twist on the childhood game red light/green light, the economy suffers and everyone panics. How can businesses stay afloat with their doors closed for months? How can employees pay their own bills and keep roofs overhead? And what happens when employers, in their rush to get things moving again, play fast and loose with the welfare of their employees?
The California government implemented reopening plans with guidance on safety measures, but as one San Diego news report in May revealed, many businesses just saw the green light to go. In a recent case filed in San Diego Superior, Pilant v. Caesars Enterprise Services, LLC, Case No. 37-2020-00030556-CU-WT-CTL, Darrell Pilant alleges that his employer, Harrah’s Casino Southern California, terminated his employment for refusing his employer’s directive to reopen the casino because he believed it was unsafe and unlawful to do so.
California Labor Code sections 6310 and 6311 make it unlawful to terminate, discipline, or otherwise retaliate against an employee for refusing to work in an unsafe work environment. These Labor Code sections provide for a right to reinstatement and payment of any lost benefits or wages as a result of any retaliatory action. And, because these Labor Code sections are deemed important public policy, a claim of retaliation on these grounds gives rise to a wrongful termination in violation of public policy cause of action, which permits the recovery of other damages, most notably emotional distress. Markedly absent from these causes of action, however, is a statutory right to recover attorney’s fees.
Where you will find a statutory right to recover attorney’s fees for a wrongful termination is in the whistleblower statute, Labor Code section 1102.1. While the whistleblower statute doesn’t expressly provide for attorney’s fees, the California Court of Appeals in Hawkins v. City of Los Angeles (2019) 40 Cal.App.5th 384, recently upheld attorney’s fees on a claim under the whistleblower statute by virtue of Code of Civil Procedure section 1021.5, which permits attorney’s fees for any claim that, among other things, confers a significant benefit on the general public.
The Pilant case is distinguished in two ways, however. First, Hawkins was a case in which the whistleblowers exposed a pattern and practice of L.A. County enforcing invalid parking tickets, which arguably confers a greater public benefit than refusing to follow your marching orders to reopen a casino. Second, Pilant is not your traditional whistleblower case in the sense that Darrell Pilant was not terminated for “whistleblowing” on an unlawful practice, but rather refused to work under unlawful conditions. Granted, the whistleblower statute does include a prohibition against retaliation for refusing to participate or assist in the unlawful activity, though advancing under that theory would seem duplicative of the 6310, 6311 claims. Nevertheless, there is precedent—very recent precedent—to seek attorney’s fees under the whistleblower statute.
And using the same legal reasoning as the Hawkins case, one could advance the argument of seeking fees on the 6310, 6311 claims utilizing the CCP 1021.5 fee statute. If the claims are sufficient to support a wrongful termination against public policy claim, then it is not at all a stretch to argue that the claims confer a significant benefit on the general public—namely, that businesses open to the general public be discouraged from operating their businesses at great risk to the health and welfare of the public. And the support of attorney’s fees for a 6310, 6311 claim is not at all a new proposition. In 2003, State Senator Leland Yee brought AB 572 to put a little more teeth on sections 6310 and 6311, which would have included stiff penalties as well as statutory attorney’s fees. The bill only failed in Appropriations, seemingly because a reliable fiscal impact was never determined. So, while attorney’s fees are not traditionally available for a wrongful termination, in this type of wrongful termination there is at least a history of support from the state legislature.
The COVID-19 pandemic has unmistakably shed new light on the nature of 6310, 6311 claims and quite possibly breathed new life into the issue of attorney’s fees. For whatever did or didn’t happen at Harrah’s Casino, San Diego saw a great many businesses acting carelessly when the governor gave them the green light, and it is not at all far-fetched to figure more than a few workers faced a “come to work or else” scenario. If the legislature has seen its way clear to provide attorney’s fees for wage-and-hour claims, surely our courts can soundly reason authorizing attorney’s fees in cases where employers valued their profits above the well-being of their personnel. Employees deserve to be incentivized to come forward—their lives literally could depend on it.
