California Labor Law News
California Harassment Lawsuit Filed Against Goodwill Industries
Oakland, CA: A California harassment lawsuit has been filed against Goodwill industries and an affiliate, alleging the two organizations allowed female janitorial staff to be sexually harassed. The lawsuit was filed by five employees and the Equal Employment Opportunity Commission (EEOC) in US District Court for the Northern District of California and claims violations of the Civil Rights Act and the Americans with Disabilities Act.
According to court documents, Goodwill Industries and Calidad Industries subjected female employees to sexual harassment, retaliated against supervisors who supported employee claims of harassment, subjected disabled employees to disparate terms and conditions of employment, and forced a supervisor to retire due to oppressive employment conditions.
The women all worked as night-shift janitors at the Oakland Federal Building. They claim their supervisor "engaged in repeated sexually offensive verbal and physical acts toward his female subordinates." Included in these alleged acts are the supervisor groping and/or adjusting his genitals while in the presence of female employees, making unwelcome and sexually charged comments to women, and engaging in inappropriate and unwelcome touching.
The women allege they repeatedly complained about their supervisor's actions but the defendants failed to take action to stop the harassment or protect the employees from a hostile work environment. The harassment reportedly began around 2009 and continued to 2012, when the supervisor's access to the Oakland Federal Building was revoked by the U.S. General Services Administration as a result of the harassment complaints.
Despite this action by the General Services Administration, the defendants reportedly transferred the supervisor to a different location and did not discipline him for his alleged treatment of the women.
The lawsuit also alleges that two supervisors opposed the sexual harassment and provided evidence or testimony in support of the employees' claims and were then retaliated against. One supervisor, Lisa Short, was allegedly reprimanded and disciplined after assisting in an investigation. Among the consequences she faced was being transferred to the night shift.
"From April 2012 through October 2012, Defendants retaliated against Short to such a degree that it created an environment so abusive and oppressive that she had no choice but to quit," the lawsuit alleges. Another supervisor, Doward Washington, was allegedly warned against participating in a harassment investigation. When he did participate in the investigation, he was subjected to unfair criticisms of his work, including being reprimanded for not carrying out duties that were not part of his job description.
The workers claiming harassment were all employed through Goodwill affiliate Calidad's work program that helps people who have severe physical, mental, or psychological impairments find work and become financially independent.
The lawsuit is EEOC v. Goodwill Industries of the Greater East Bay Area, case no. 3:16-9093.
California Undocumented Workers have an Ally in the State
Davis, CA: With the inauguration of President-elect Donald J. Trump mere weeks away, the fate of undocumented workers in California remains tenuous should Mr. Trump carry his campaign rhetoric forward to actual policy once installed in the Oval Office. Mr. Trump’s recent stance on the planned installation of a manufacturing plant in Mexico by Ford Motor Co. resulted in the cancellation of those plans when Trump hinted strongly that Ford would face massive taxation to bring Mexican-built cars across the border into the US.
Undocumented workers in the US have borne much the brunt of Trump’s pro-American position. This is especially troubling for California, given the large number of undocumented workers in the state and the importance they have to the California economy. California has already issued statements supporting its undocumented workers, and their value to the financial health of the state. However, the Trump Administration remains a looming threat if campaign promises are carried out.
That said, Kevin R. Johnson, dean of the University of California, Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, writing in The Sacramento Bee (11/27/16) muses that any attempt at a massive deportation of undocumented workers is fraught with obstacles.
With regard to President-elect Trump’s campaign promise to round up and deport two, to three million undocumented immigrants with a focus on criminals, there is some question as to whether that effort will be restricted to those guilty of major crimes, or encompass any undocumented worker arrested for even a minor infraction.
The Bee referenced research that suggests undocumented immigrants are, in fact more law-abiding in general than their US-born counterparts.
Workplace raids, akin to an effort undertaken during the George W. Bush Administration in 2008, could be tagged with claims of civil right violations against workers. That’s what happened when the Agriprocessors Inc. manufacturing facility located in Postville, Iowa was raided and nearly 400 immigrant workers were arrested.
There has also been talk, according to The Bee, of enacting legislation requiring all employers to make use of the E-Verify database, a federal effort towards employee verification that is strictly voluntary. There have been overtures from the Trump transition team that use of E-Verify could be made mandatory. The database, it has been reported, is error-prone. There have reportedly been some instances where workers have been discharged by their employer, even though they are legally entitled to work in the US.
Finally, muses Kevin R. Johnson, in comments appearing in The Bee, any end to the so-called “catch-and-release” detention process could result in California undocumented worker lawsuits. Currently, workers detained for lack of documentation are eligible for release by posting bond. Ending the practice of “bonding out” could ensnare a California undocumented worker in custody that could last for years, given the huge backlog of cases currently experienced by immigration courts.
Such a practice could increase the likelihood of undocumented worker lawsuits, the resolutions of which could take years.
In a perfect world, all workers would be documented. In reality, the state of California has thrown its support behind undocumented workers for their contributions to the state economy.
Google Faces California Employee Lawsuit
San Francisco, CA: A Google employee has filed a California labor lawsuit alleging the company violates compliance laws by requiring employees to maintain illegal standards of confidentiality. Although companies are allowed to maintain confidential trade secrets, the employee alleges Google takes the secrecy too far and violates California labor laws in the process.
According to The Wall Street Journal (12/21/16), a Google product manager filed the lawsuit, alleging Google prohibits employees from telling potential employers how much money they earn, sharing what experience they had while working for Google, or disclosing their skills obtained while at Google. Furthermore, according to the lawsuit employees are prevented from speaking with each other about potentially illegal conduct or dangerous product defects.
The plaintiff, who is listed only as John Doe in the lawsuit, alleges the California labor lawsuit was filed after an email from Google's director of global security told approximately 65,000 Google employees that the plaintiff had leaked confidential information to the press though the plaintiff maintains he did not do so. Although Doe's name was not given in Katz's email, Doe says employees had no difficulty figuring out the person mentioned in the email was him, and he argues the email damaged his reputation among his colleagues and could further damage it within the industry.
Doe alleges that as many as 65,000 current employees and thousands more former Google employees are affected by the Confidentiality Agreement and policies.
According to the lawsuit, Google's Confidentiality Agreement violates California labor law because it restricts employees' abilities to find new work. The lawsuit also alleges Google violates employees' freedom of speech and freedom to work by limiting their ability to talk freely during non-work hours. Doe further alleges that Google's Confidentiality Agreement does not advise employees that they are able to report illegal activities without fear of retaliation.
Doe says he was hired by Google in July 2014 and signed the Confidentiality Agreement. That Confidentiality Agreement reportedly defined "confidential information" as "without limitation, any information in any form that relates to Google or Google's business that is not generally known." This allegedly includes "employee data."
Failure to abide by the Confidentiality Agreement can allegedly result in disciplinary action including termination and/or legal action.
A representative for Google said the company puts a high priority on transparency and its confidentiality policies are only to protect proprietary information. But the lawsuit alleges Google defines "essentially everything" as "confidential information."
"Google's motto is 'don't be evil'," the lawsuit states. "Google's illegal confidentiality agreements, policies, and practices fail this test."
New California OSHA Workplace Violence Standard for Healthcare Workers
Sacramento, CA: There is little doubt that healthcare workers, second only perhaps to police officers, are amongst the highest groups of workers potentially exposed to workplace violence. Police have to worry about aggressiveness from criminals and suspects. For the healthcare worker, aggressiveness in the workplace can originate with patients showing aggression towards their healthcare provider. For 2017, the California Division of Occupational Safety and Health Administration (Cal/OSHA) is addressing this head-on with new guidelines which could come into effect as early as January.
What this means for the healthcare worker, is that employers will now have strict guidance with regard to minimizing, and even mitigating aggression and violence in the workplace. At the same time, however, some of the provisions are reported to be broad in nature and subject to interpretation. For the healthcare worker in the state of California, an employer’s due diligence (or lack thereof) with regard to enforcing the new rules could provide the basis for a California OSHA lawsuit amidst allegations the employer dropped the ball in enforcing the new guidelines.
Federally, OSHA has only broad guidelines with no specific standard of guidance with regard to workplace violence and aggression – especially for hospitals. California is reported to be the first state to bring in specific guidelines, through Cal/OSHA, for dealing with and preventing aggression and violence directed towards healthcare workers in hospitals.
The new California OSHA standard was not without pushback from hospitals. It has been reported that two labor unions representing healthcare workers in California lobbied the California Occupational Safety and Health Standards Board to adopt a new standard for specific protection against violence in the workplace. However, the California Hospital Association (CHA) opposed the standard (the CHA represents more than 400 hospitals in the state).
There was no reason given as to why the CHA opposed the standard. However it is presumed the hospitals took exception to broad terms used to reference “health care facilities” without more specific language suggesting which facilities, specifically, are covered by the standard. Thus, there could be broad interpretations employed. Same goes for the broad definitions employed for workplace violence, and threats of violence. The standard does specify aggression and violent behavior towards healthcare workers on the part of patients, visitors, fellow employees, non-facility workers, or anyone who might have had a personal relationship with a healthcare worker. However, specifics with regard to the acts, and types of aggression or violence, are described as overly broad.
The Cal/OSHA standard puts the onus on the employer to implement protocols and procedures, design and provide training for employees, and provide whatever equipment is deemed appropriate and necessary in order to mitigate workplace violence. However, the standard is short on specifics, leaving the employer to interpret the standard according to the employer’s own point of view and reference.
This could provide a challenge for both the employer, as well as the litigant should a healthcare worker file a California OSHA lawsuit citing failure to maintain a standard that has a number of ill-defined, moving parts.
There doesn’t appear much time for revising the Cal/OSHA standard, as speculation suggests it could be enacted as early as January. It is also expected that other states will use the California OSHA standard for workplace violence against healthcare workers as a template for their own governance with regard to violence, threats of violence and / or acts of aggression against healthcare workers.
Whether or not the standard will be amended going forward remains to be seen.
Wells Fargo Whistleblower Files California Harassment Lawsuit
San Francisco, CA: A woman who reported wrongdoing at Wells Fargo has filed a lawsuit in California alleging she was fired in retaliation for reporting illegal activity and was harassed by her superiors. Diana Duenas-Brown, who worked at Wells Fargo in California for 14 years and was a branch manager for 11 years, filed the lawsuit on December 9 alleging wrongful termination and retaliation.
According to Northern California Record (12/27/16), Duenas-Brown was fired on March 16, 2015, after having reported illegal sales practices by Wells Fargo employees, including opening customer accounts and issuing credit cards without customer consent. Wells Fargo faced sanctions following an investigation that uncovered widespread wrongdoing on the part of its sales representatives.
Duenas-Brown alleges that she reported the illegal activity to her superiors and, after doing so, was harassed by her bosses, including being handed unwarranted discipline, hostile interrogations, and poor performance evaluations. She was allegedly also demoted, transferred, and had her wages reduced in the 10 months before she was fired.
The lawsuit claims Duenas-Brown suffered loss of financial and employment benefits and loss of advancement opportunities as a result of Wells Fargo's actions.
Wells Fargo responded to the lawsuit saying it has zero tolerance for retaliation against employees, including retaliation against employees who report wrongdoing. Although Duenas-Brown's allegations against her employer could be considered harassment, her lawsuit claims wrongful termination and retaliation.
The financial firm also faces lawsuits from customers who allege the bank opened fake accounts on their behalf without their consent. Those customers allege their credit scores were harmed by the fake accounts and they paid fines they shouldn't have linked to those accounts. Lawmakers have proposed legislation that would prevent Wells Fargo from holding customers to the arbitration agreements in their bank contracts. Wells Fargo also paid $185 million in fines for the illegal activity.
California employment laws require training to prevent abusive conduct against employees, but that abusive conduct—including verbal abuse, physical abuse, and derogatory remarks—is defined as acts that occur repeatedly. Furthermore, the law does not outright ban abusive conduct, it merely requires training to prevent such activity.
Sexual harassment against employees and discrimination against certain protected groups of people is also prohibited under employment law.
The lawsuit is case number 4:16-cv-07066, in US District Court for the Northern District of California.
Appelate Decision: No Wrongful Termination for Warehouse Worker
Los Angeles, CA: A major media corporation got an early Christmas present December 20 when a three-judge panel with the Second Court of Appeal in California reversed a lower court’s ruling holding Time Warner Cable Services LLC (Time Warner, TWC) liable for wrongful termination and disability discrimination.
A lower court had assessed a $3.4 million judgement against Time Warner with regard to the firing of a warehouse employee over prescription drug use. The plaintiff, Patricia Hancock, was let go from her warehouse position due to her alleged violation of her employer’s drug policy. Hancock had alleged wrongful termination because the drug she was taking for pain, hydrocodone had been previously prescribed. Hancock further alleged her employer had failed to accommodate her short-term disability. A lower court agreed, and issued a judgement of $3.4 million against Time Warner.
The appellate panel, however, reversed the decision of the lower court because, in their view, the defendant was not adequately aware their employee had suffered a disabling injury and thus, could not be held responsible for wrongful termination based on discrimination for the plaintiff’s disability.
The appeals court determined that Hancock had failed to adequately inform her employer as to the extent of her injury, sustained as it was in a Time Warner warehouse.
“The employee cannot ‘expect the employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it,’” the ruling said. “Any inferences drawn from the evidence must be a product of logic and reason, not speculation or conjecture.”
According to court documents associated with the California wrongful termination lawsuit, Hancock sustained an injury to her lower back while moving heavy pallets at a Time Warner warehouse. This was in August, 2011. The lower court determined that a warehouse supervisor who had ordered extra boxes for the pallets (and thus, increasing the weight which invariably led to the plaintiff’s injury) failed to advise Hancock to fill out an accident report, or to visit a doctor. However, according to court records the plaintiff failed to share with the supervisor that she required medical attention – nor did the plaintiff ask to return home.
According to the wrongfully terminated lawsuit, the plaintiff experienced increasing pain upon returning home later that day and took painkillers she had been prescribed previously following an unrelated surgical procedure.
Court records revealed that the following day, the warehouse supervisor took the plaintiff to see a physician, and the plaintiff was cleared for work. However, a routine drug test taken as part of the doctor consultation revealed the presence of hydrocodone in the plaintiff’s system, related to the medication she had taken for pain the night before.
That’s when the trouble started, and formed the basis of the wrongful termination lawsuit. The plaintiff was asked for the prescription for the hydrocodone. Hancock indicated it was an older prescription, for which she failed to keep the original copy and would need seven days for replacement paperwork to be sent from her healthcare provider.
Rather than place the plaintiff on unpaid leave until the paperwork for hydrocodone was secured, a human resources manager for the defendant terminated Hancock for violation of drug policy.
The trial court found that Time Warner had failed to accommodate Hancock’s disability, and the jury awarded damages. The appeals court reversed that decision, in part, because in the appellate panel’s view Hancock had failed to inform her supervisor at the time that the disability that served as the foundation for her wrongful termination lawsuit in California was due to her back injury.
The appellate panel also ruled that her termination was founded upon the plaintiff’s inability to immediately procure the prescribing documents for the hydrocodone, and not due to her disability.
“Even though the jury found TWC knew Hancock had a qualifying disability, it did not fire her because of the disability. As a result, Time Warner did not engage in disability discrimination and did not wrongfully terminate Hancock,” the decision said.
The wrongfully terminated case is Hancock v. Time Warner Cable Services LLC et al., Case No. B266532, in the Court of Appeal of the State of California, Second Appellate District.
Both Sides Hint at Appeal in Dispute Between Wal-Mart and Truckers
Los Angeles, CA: Even though the losing defendant in a California employee’s rights and compliance lawsuit felt they had scored a win nonetheless, attorneys for Wal-Mart have signaled their likely intention to appeal the $54-plus million verdict. The plaintiffs, who were asking for more and received less than anticipated in the jury award for the plaintiff’s side, indicated they would appeal as well.
The employee’s rights lawsuit pitted Wal-Mart Stores Inc. against a class comprised of 839 truckers who accused their employer of failing to comply with state and federal laws, as well as the employer’s own policies, or so it was alleged.
The plaintiffs claimed unpaid wages for various duties required of them by their employer in the course of their duties, for which they allege to have not received wages, or sufficient wages. The plaintiffs also allege they were not paid minimum wage for federally-mandated layover breaks lasting ten hours. Plaintiffs, who claimed they were required to stay with their trucks during the layover periods, were paid a total of $42 for the 10-hour time frame.
Drivers claimed they should have been paid minimum wage for the class period, which would have earned them between $67 and $90 instead.
In the end the California jury awarded the plaintiffs $44.7 million intended to make up the difference between what the plaintiffs were paid, and what plaintiffs claimed they should have been paid during the layover time.
In the end, plaintiffs were awarded damages for pre, and post-trip inspections together with the required rest breaks as mandated under California law (allegedly not provided), in order to remain in compliance with the laws of the state.
The jury, however, did not award damages for other alleged compliance violations asserted by the plaintiffs, including washing trucks, fueling, weighing the trucks’ load, waiting at vendor and store locations, performing adjustments, complying with US Department of Transportation inspections, or meeting with driver coordinators.
The plaintiffs had sought an award totaling $72.5 million, with a total payout combining liquidated damages and an estimated $25 million in statutory penalties for not remaining in compliance for payment of minimum wages, at $170 million overall.
In the end, the truckers were awarded $54 million-plus in damages. Attorneys for Wal-Mart characterized the outcome as a win for their side, given that plaintiffs were asking for more. Attorneys for the plaintiffs noted that in their view, the facts of the case and the law were “overwhelmingly” on the side of the plaintiffs.
The trial rolled through the fall and concluded November 23rd. Both sides plan to appeal.
The case is Ridgeway et al. v. Wal-Mart Stores Inc. et al., Case No 3:08-cv-05221, in US District Court for the Northern District of California.
California Vows to Protect Undocumented Workers
Sacramento, CA: Following Donald Trump's election as US president, lawmakers have vowed to protect California's undocumented workers and other illegal immigrants from deportation. The move comes following promises from Trump to deport or incarcerate at least eleven million "criminal" immigrants. The California State Legislature, however, has passed resolutions that would challenge immigration policies that unfairly target or harm undocumented workers.
Court Allows FMLA Retaliation Suit To Proceed
Anaheim, CA: When it comes to defending Family and Medical Leave Act rights, regardless of whether the employee is in California or Ohio, there are certain rules an employer cannot break. Federal FMLA laws apply across the US, while state laws, such as California FMLA, apply only to the individual states. Despite the existence of state FMLA laws, though, there are regulations that employers in every state must follow. Among them is the rule concerning retaliating against employees.
The federal FMLA prohibits covered employers from discriminating or retaliating against employees who exercise their right to FMLA benefits. This means an employer cannot fire, layoff, demote, or otherwise consequence an employee for requesting FMLA benefits or asserting FMLA rights. Employers are also prohibited from interfering with or denying an employee from exercising any FMLA benefits he or she is entitled to.
Employers might think they can get away with retaliating against employees by making it appear they have consequenced the employee for something else—such as poor work conduct. But if there is no history of poor work evaluations and an employee has just attempted to exercise his or her FMLA benefits, the courts might not regard such employer behavior too kindly.
A recent lawsuit highlights the court's view of retaliation. Although the case occurred in Ohio, the rules against retaliation are federal so employees in California who are subject to similar retaliation can take note.
The lawsuit is Lightner v. CB&I (case number 14-cv-2087), S.D. Ohio. Plaintiff Evan Lightner worked for CB&I as a site superintendent from 2009 and consistently received glowing reviews of his work. In the summer of 2013, Lightner raised safety concerns about situations he observed at CB&I. His concerns were allegedly dismissed, but according to court documents in 2014, Lightner needed time off to recover from a lumpectomy. The day after a discussion with his supervisor about the time off, Lightner was allegedly called and told that the project he was supposed to work on had not been awarded and, as a result, Lightner was being "furloughed."
Lightner filed a lawsuit alleging he was furloughed in retaliation for asserting his FMLA benefits and further alleging that despite the contract not being awarded, he was the only worker who was furloughed. The defendant filed a motion for summary dismissal of the suit.
The court found that Lightner's claim of interference could be dismissed because the company could not have interfered with his FMLA claim as it furloughed him before it could deny him leave. But the court did allow the retaliation claim to continue. In allowing the claim to continue, the court noted that CB&I had no documentation supporting the need to eliminate Lightner's position, there was only one person eliminated in the workforce reduction, and a similar job position was posted by the company.
As the court noted, to succeed in a retaliation claim, the plaintiff must show that he or she notified the employer of an intent to take leave, suffered an adverse employment action, and the adverse action was directly caused by the exercise of his or her rights. Judge Algenon L. Marbley found that Lightner met the requirements, and allowed the retaliation claim to continue.
US Supreme Court to Review ERISA Findings from Appellate Courts
Washington, DC: A court challenge that pits church-based health networks against ERISA provisions and interpretations is to be heard by the highest court in the land, following notification on December 2 that the US Supreme Court is going to weigh in by agreeing to review recent decisions by the appellate courts. As one of the health networks is based in California, the case is expected to have some influence and impact on California ERISA labor law.
At issue is an interpretation of just what a church-affiliated hospital is, and whether or not it has to see affiliation with an actual, brick-and-mortar church in order to qualify for exemptions observed in the Employee Retirement Income Security Act (ERISA).
Amongst three health networks embroiled in the litigation is Dignity Health, headquarterd in California. Dignity has joined with Saint Peter’s Healthcare System, based in New Jersey, and Advocate Healthcare Network, which is based in Illinois.
The California ERISA dispute mirrored by the other two health networks has to do with provisions and fiduciary tenets normally required by ERISA. There are exemptions, however, for faith-based health networks affiliated with a church, whereby the latter – assuming they qualify – do not have to undertake fiduciary obligations and minimum-funding requirements.
What got them here was a putative class action launched by employees who assert their employers are not, in actual or real sense affiliated with a church in the first instance, and thus take exception to any claim by the health networks that they qualify for exemption under that qualification.
Based upon the assertion the church-based hospital(s) are capitalizing on an ERISA exemption for which they don’t correctly qualify, workers are therefore taking the position that their retirement funds have been left vulnerable with the lack of minimum funding requirements, insurance or disclosure should the funds dip beneath a certain plateau.
The health networks are fighting back, contending that any reversal of an exemption would oppose long-standing positions taken by the Internal Revenue Service (IRS), US Department of Labor (DOL) and the Pension Benefit Guaranty Corp.
Billions of dollars’ worth of claims are on the line.
According to documents, the Seventh, Third and Ninth Circuits found that the retirement plans of the three networks cannot be excluded from ERISA as “church plans.”
The health networks appealed their case to the US Supreme Court, which has agreed to review the findings of the lower appellate courts.
Religious freedom groups are defending the faith-based health networks, and their decision to take their ERISA case to the highest court in the land.
To that end the Alliance Defending Freedom group, in a statement following the decision by the high court to review, said that “the government shouldn’t attempt to go into the theology business by assuming it has the ability or expertise to decide whether a faith-based ministry is religious enough to be a ministry.”
The cases are Saint Peter’s Healthcare System et al. v. Laurence Kaplan, Case No. 16-86, Advocate Health Care Network et al., Case No. 16-74, and Dignity Health et. al. v. Starla Robbins, Case No. 16-258, in the Supreme Court of the United States.
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