©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 111 money, health insurance, dental insurance, life insurance, or retirement benefits for participating in the AOWP. Merely being granted the privilege of staying out of jail did not constitute a financial benefit for the participant. Further, although he received workers’ compensation benefits for his injury, these benefits were not paid for his inability to work; they were paid to compensate for his injury. The trial court properly found that the lack of remuneration precluded a finding of employment for FEHA purposes.310 5.11.1 Far greater scope of liability for employment discrimination In many ways California’s discrimination provisions have a greater breadth, provide more remedies, and are easier for plaintiffs to pursue than are the corresponding provisions under federal law (see § 6.1). Under federal law—Title VII, ADA, and the ADEA—monetary remedies for employment discrimination are subject to certain limits, such as caps on compensatory and punitive damages for Title VII lawsuits and the absence of emotional distress recovery for ADEA lawsuits. Further, some states, such as Washington, do not recognize claims for punitive damages. In California, it’s different. A California plaintiff who prevails in any kind of employment tort suit—common law or statutory—is entitled to recover the full panoply of tort damages, including uncapped economic damages and noneconomic damages, and punitive damages, as well as costs, and in a discrimination suit can recover not only reasonable attorney fees but also expert witness fees.311 And under California law, unlike federal law, attorney-fee awards can often dwarf damage awards (see § 5.12). 5.11.2 Additional claims for physical violence California employees discriminated against with acts of violence and intimidation have a private right of action in addition to the rights they already have under ordinary discrimination statutes.312 5.11.3 Joint employer liability California takes an extraordinarily expansive view on what constitutes joint employment. A Court of Appeal decision held, as a matter of law, that a worksite employer was a joint employer of a staffing agency employee because the worksite employer exercised significant control over the employee’s work. The plaintiff was placed with the worksite employer defendant by a temporary staffing company. Although the staffing company paid all wages and benefits and recorded all work time, the worksite employer controlled the temporary employees much as it did its own employees. When the plaintiff sued the worksite employer for harassment and retaliation, the jury decided that the worksite employer was not the plaintiff’s employer and returned a defense verdict. The Court of Appeal reversed, reasoning that an employment relationship for purposes of FEHA exists, as a matter of law, if the defendant controls the individual’s work performance. The plaintiff had worked as a supervisor for the worksite employer, had reported to the worksite employer’s management, had been subject to the worksite employer’s employee handbook and disciplinary policies, and had undergone the worksite employer’s mandatory in-house training. The Court of Appeal remanded the case for a retrial, with the jury to be instructed that the worksite employer was the plaintiff’s employer with respect to FEHA claims.313 Better news for employers came in a 2019 decision affirming a summary judgment against a health clinic nurse who sued not only the clinic that employed her but also a firm that provided the clinic with services including patient scheduling, patient registration, coding and transcription, billing, and collections. The Court of Appeal held that the service firm was not the plaintiff’s joint employer because the firm did not pay her salary, benefits, or Social Security taxes, and did not own the equipment she used when working. The service firm lacked authority to hire, transfer, demote, discipline, or discharge the plaintiff and did not set her schedule or determine her pay. Although the service firm controlled patient scheduling, any effect on the plaintiff’s pay was minimal and indirect.
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