112 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com 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.318 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.319 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.320 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. The fact that the health clinic could not function without the service firm did not make the firm the plaintiff’s employer.321 But then, in 2021, California employers suffered a hit in the joint employment arena, with respect to a company’s relationship with its contractor’s employee. A Court of Appeal decision broadened the test for joint employment by lowering the bar for determining what constitutes control by a business over the wages and working conditions of its vendor’s employees. Shell Oil Company had agreements with independent gas station operators by which the operators paid Shell a monthly rent while employing their own employees. When an operator’s employee sued Shell on wage and hour claims, the Court of Appeal ultimately held that Shell was a joint employer because Shell maintained control over the operator’s “finances, day-to-day operations, facilities, and practices” such that it could have stopped employees from “working in their stations through a variety of means.” The Court of Appeal specifically noted that Shell employees told the plaintiff they had the power to have him fired, that Shell had
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