Kouff v. Bethlehem-Alameda Shipyard, Inc.

California Court of Appeal Feb 25, 1949 No. Civ. 13768Published

Before: Goodell

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Holding. The court held that Section 695 of the Elections Code, which prohibits the discharge of an employee for serving as an election officer, is constitutional and creates a valid cause of action for wrongful discharge regardless of whether the employment is at will.

Issues

Whether Section 695 of the Elections Code is constitutional regarding the prohibition of discharging employees for serving as election officers.
Whether Section 695 applies to employees at will or only to those employed for a specified term.
Whether the complaint sufficiently alleged damages and malice to survive a demurrer.

Disposition. reversed

Quotations verified verbatim against the opinion

“The power of the Legislature to prohibit such discharge cannot be doubted.”

“If the state can prevent employers from discharging employees because they serve on election boards, it follows that the complaint states a cause of action for unlawful discharge.”

“No reason is advanced by respondents, and none suggests itself, why an employee for a specified term should be protected, while an employee at will should not be.”

GOODELL, J.

Appellant, a former employee of respondent Bethlehem-Alameda Shipyard, Incorporated, sued that company and respondent Shosted, its personnel manager, for wrongful discharge. A demurrer was sustained with leave to amend, and when appellant declined to do so judgment was entered for defendants for costs. This appeal followed.

Section 695 of the Elections Code reads; “Any election officer may, on the day of an election at which he is serving, absent himself from any service or employment in which he is then engaged or employed. He shall not, because of so absenting himself, be liable to any penalty, nor shall any deduction be made from his usual salary or wages, nor shall he be suspended or discharged from his service or employment; ....’’

The complaint alleges that for more than a year prior to June 4, 1946, appellant had been an employee of Bethlehem and on that day he served as an election officer and absented himself from his employment; that Bethlehem, in violation of section 695, deducted from his salary that day’s wages and on June 9 dismissed and discharged him “solely because he had so absented himself for the purpose of serving as election officer.’’ It alleges that respondents refused to reinstate him and that solely because they dismissed and discharged him he has been unable to secure other employment, and has been damaged through loss of wages in the sum of $1,894.40. Malice is alleged and exemplary damages of $5,000 are sought.

In addition to the general ground, the demurrer specifies as grounds of uncertainty that it does not appear (1) why plaintiff was unable to secure other employment after June 9, (2) how he has been damaged in the sum of $1,894.40 “save and except the amount of wages for the day upon which plaintiff alleges he served as an election officer,’’ and (3) what facts justify exemplary damages.

Respondents’ principal position in support of the judgment is that section 695 is unconstitutional.

That section is divisible into four parts, viz., (1) the declaration that an election officer may absent himself from his employment on election day, and the provisions (2) that he shall not be penalized, (3) docked, or (4) suspended or discharged, because of such absence.

[324]

Kouff v. Bethlehem-Alameda Shipyard, Inc.

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GOODELL, J.

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