Does Application Of The “Honest Belief” Defense To A CFRA Claim Deprive An Employee Of An Unwaivable Statutory Right?

In Richey v. AutoNation, Inc. (Cal. Sup. Ct.; January 29, 2015) 60 Cal.4th 909, [182 Cal.Rptr.3d 644, 341 P.3d 438], the California Supreme Court sidestepped the issue of whether an arbitrator’s presumably erroneous interpretation of the Moore-Brown-Roberti Family Rights Act (CFRA) deprived an employee of an unwaivable statutory right. The plaintiff employee was fired by defendant when it learned that the plaintiff was operating a restaurant while on medical leave. The arbitrator ruled in favor of the employer, citing the “honest belief” defense. The plaintiff moved to vacate the award, arguing that “honest belief” is not a defense to a CFRA claim, and thus, the award deprived him of an unwaivable statutory right. The trial court denied the motion and the Court of Appeal reversed. The Supreme Court reversed the Court of Appeal, noting that the employer had a general policy of prohibiting employees from engaging in outside employment, including self employment, and therefore could have fired the plaintiff for violating that policy.  Thus, it stated that the issue of whether application of the “honest belief” defense to a CFRA claim deprives an employee of an unwaivable statutory right remains an unresolved question.