Thursday, January 22, 2015
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C.A. Invalidates Agreement Shortening Limitation Period in Ex-Employee’s Action Based on FEMA, Public Policy
By a MetNews Staff Writer
A male nurse who claims he was demoted, then fired, based on his whistleblowing and his gender cannot be held to his agreement that any action against his employer would be time-barred, if not filed within six months, the Court of Appeal for this district has ruled.
The opinion, by Justice Sandy Kreigler of Div. Seven, was filed Tuesday and is not certified for publication.
The employee, Keith Kohl, signed an employment application which contained these words:
“READ CAREFULLY BEFORE SIGNING. I agree that any claim or lawsuit relating to my service with [employer Del Amo Hospital] must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. I waive any statute of limitations to the contrary.”
Nearly a year after his employment was terminated, Kohl sued his former employer under the Fair Employment and Housing Act (FEHA), as well as pleading common law causes of action. Los Angeles Superior Court Judge Gregory Alarcon held the contractual limitations period to be enforceable and awarded judgment to the defendant.
Kreigler noted that less than a month after the bench trial, the First District Court of Appeal held in Ellis v. U.S. Security Associates (2014) 224 Cal.App.4th 1213 that the limitations period for bringing an action under FEMA cannot be shortened. He wrote:
“Ultimately, we agree with Ellis’s reasoning that a contract that shortens the limitations period for pursuing statutory claims, here plaintiff’s FEHA claims, merits closer scrutiny by virtue of the fact that such agreements involve a statutory scheme embodying legislatively enacted public policies that have been given special protection in other contexts….The Legislature has enacted a limitations period and process uniquely applicable to FEHA claims….Decisions by the California Supreme Court clearly hold that private parties cannot contractually waive the statutory protections contained in FEHA and similar schemes. Relying on those decisions and Ellis, we conclude that the shortened, six-month limitations period is unreasonable and unenforceable with respect to Kohl’s FEHA claims.”
Kreigler went on to say:
“We conclude the six-month limitations period is also unenforceable as to Kohl’s common law wrongful termination and demotion causes of action because it would undermine public policy and therefore be unreasonable to require the claims to be brought in such a short time frame.
“Kohl seeks to proceed on two common law causes of action: wrongful demotion in violation of public policy and wrongful termination in violation of public policy. Causes of action for wrongful demotion in violation of public policy and wrongful termination in violation of public policy are only viable if a plaintiff alleges adverse employment actions that contravene fundamental and substantial public policy.”
Public policy would be thwarted, he declared, if parties could shorten the limitations period through private agreement.
The case is Kohl v. Del Amo Hospital, B255428.
Henry J. Josefsberg represented Kohl and Roy G. Weatherup, Alan R. Zuckerman, Keri Lynn Bush of Lewis Brisbois Bisgaard & Smith acted for Del Amo.
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