California Labor Law News
Family Responsibilities Leading to More Employee Lawsuits
Los Angeles, CA: A new study conducted by the Center for WorkLife Law at the University of California Hastings College of the Law suggests that discrimination against workers who take time to care for family members has resulted in more employee lawsuits being filed against employers. Those lawsuits allege violations of a number of laws, including the Family and Medical Leave Act (FMLA) and other state and federal laws. Perhaps surprisingly, men make up 38 percent of all FMLA cases reported, indicating they, too, are victims of discrimination when they take time off to care for family members.
The report, titled “Caregivers in the Workplace,” covers all types of family responsibilities discrimination - both those that involve violations of FMLA and those that violate state or other federal law. The author found that the number of family responsibilities discrimination cases increased 269 percent in the past 10 years, with cases involving care of an elderly person - usually filed under FMLA and state laws - jumping 650 percent.
“The essential conclusion of this report is that employers have not implemented effective policies and practices for managing employees who have family caregiving obligations,” Cynthia Thomas Calvert, author of the report, wrote.
Some lawsuits are being settled or have resulted in awards for the plaintiffs. The report cites a California lawsuit in which a phlebotomist who returned to work after leaving to care for an ill daughter received unwarranted discipline and negative performance reviews. The plaintiff was awarded more than $287,000 in 2014. In a different case, a production supervisor was fired after she told her employer she needed FMLA leave to care for her husband. The plaintiff in that case was awarded almost $500,000 in 2011.
FMLA lawsuits are filed by employees in a range of careers who face a variety of situations, including caring for children, taking maternity/paternity leave, caring for spouses or caring for elderly parents. The report cites the case of a surgical nurse who was approved for intermittent FMLA leave for two years to care for her mother, but was then disciplined for absenteeism even when it was covered by FMLA. The nurse was ultimately fired for violating company policy. Her lawsuit settled.
Employees have the right to protected leave when they are caring for family members. This means they cannot be fired, discriminated against, harassed, disciplined, or otherwise face consequences for using or applying for FMLA leave. Violations of these rights indicate that employers either do not understand or do not care about FMLA laws. Either way, such actions can result in lawsuits being filed against employers.
Famed San Francisco 49ers Announcer Sues for Age Discrimination
San Francisco, CA: He had been performing his job faithfully for 30 years, in so doing becoming a football institution in San Francisco. Bob Sarlatte, the stadium announcer for the San Francisco 49ers, on the job since 1984, and for a generation of football fans his was the only voice fans heard inside the stadium when they attended a 49ers game. Today, Sarlatte is suing for California age discrimination.
Everything changed for Sarlatte in 2014, when the team was planning a move to a new facility and allegedly decided that Sarlatte would not be making the move with the team and the remainder of the organization.
The reason?
According to the Daily Post of Palo Alto (5/19/16), Sarlatte alleges he was told by the team that the 49ers were moving in a “different direction” with the location transfer to the new stadium, and when pressed, the manager is alleged to have told Sarlatte that the position of field announcer was being eliminated.
Sarlatte’s California discrimination lawsuit alleges that upon moving to the new facility, the San Francisco 49ers immediately hired a younger announcer for the position of in-stadium (or field) announcer, which hadn’t been eliminated after all.
The plaintiff’s California labor lawsuit alleges that Sarlatte is the victim of age discrimination. The actor, comedian and public speaker had been performing in the capacity of field announcer with the football team for 30 years, from 1984 until 2014, when his employment was terminated at the age of 66.
Just prior to his termination, Sarlatte appeared as a guest on Late Night with David Letterman, where the host talked about Sarlatte’s 30-year run with the team. Sarlatte had been a frequent guest on the Letterman show as a performer in his own right.
While planning the move to its new facility in Santa Clara, the team, according to Sarlatte’s California discrimination lawsuit, “engaged in a pattern and practice of eliminating its older workers, while attempting to rebrand the team as a younger, technology-driven organization.
“In order to make room for the younger technology workers, [49ers CEO Jed York] engaged in a campaign to terminate the older, senior employees within the 49ers organization,” the lawsuit alleges.
It should be noted that two other long-standing employees of the team were also let go prior to the move to the new facility. In January 2015, the two plaintiffs filed California age discrimination lawsuits in federal court in San Francisco. Those two lawsuits ended in a settlement this past October.
The Sarlatte lawsuit claims violations of the US Age Discrimination in Employment Act, the California Fair Employment and Housing Act, and California public policy. Sarlatte is seeking back wages, an additional punitive financial award, and reinstatement to the job of field announcer with the San Francisco 49ers.
Proposed Bill Aims at Standards for Indoor Workers
Sacramento, CA: We should know in a little more than a year what Cal-OSHA, the Division of Occupational Safety and Health for the state of California, comes up with in terms of proposals to regulate indoor working conditions with an aim to setting standards for workers who toil indoors.
Such a standard for outdoor workers has been on the books since 2005 - and regularly revisited - in an effort to protect outdoor farm and construction workers from the often intense heat and high sun associated with toiling out in the fields or within a hot construction site. Meal breaks and rest periods, the availability of water and the provision for shaded areas have all been aimed at avoiding heat exhaustion - or worse - heat-related deaths.
Now, Senator Connie Leyva (D-Chino) wants the same kind of standards for indoor workers. Leyva claims that employers such as Amazon, which boasts a climate-controlled and managed environment within its fulfillment centers, are actually in the minority.
Sun exposure within the context of an indoor working environment is not an issue. But temperature can be - either too hot or too cold, with the potential for stale air in both situations. The San Bernardino Sun (5/7/16) reports that in a 2011 survey of workers by Warehouse Workers United, a majority of respondents claimed that excessive heat and cold were a problem, with indoor temperatures reaching as high as 125 degrees Farenheit on occasion.
Critics of the proposed bill claim that such efforts would inhibit growth in the inland logistics industry and hurt the economy. But Leyva isn’t advocating that employers install expensive climate-control systems in their facilities.
Rather, she seeks a set of standards akin to those currently protecting outside workers. The timing of rest periods - and the frequency thereof - would be governed by temperatures in the building. Access to cold water would be another requirement, together with the availability of a climate-controlled “retreat area” to which a worker could retire for a few minutes for relief from excessive heat or excessive cold.
Leyva told the San Bernardino Sun that benchmarks are needed for even so-called “good” employers who advocate for their employees, and play by the rules. “Even good employers don’t have a standard - what kind of access to water, what is the acceptable temperature?” Leyva said in comments published by the San Bernardino Sun.
“The (Division of Occupational Safety and Health) would come up with and propose a standard,” Leyva continued. “I don’t believe they would say, ‘Put in a multimillion-dollar system.’”
Leyva’s bill calls for Cal-OSHA to come up with a set of proposals by July 1 of next year.
Wells Fargo Settles Wrongful Termination Lawsuit
Los Angeles, CA: Wells Fargo has settled a wrongful termination lawsuit filed by a former employee, who alleged her decision to transition from a man to a woman led to her being fired. The California labor lawsuit was filed in July 2015, and alleged Marlo Kaitlin Gallegos suffered discrimination, harassment and wrongful termination at the hands of Wells Fargo. The terms of the settlement have not been released.
According to Patch (6/3/16), Gallegos was hired by Wells Fargo to work in the call center in August 2010 and began transitioning to a woman in December of the same year. After allegedly being told by her boss that her actions were unnatural, Gallegos complained to another supervisor who allegedly began criticizing Gallegos’s work after the complaint was made.
Even after a transfer to a new position, Gallegos alleges she suffered hostile comments about her appearance, and her complaints again were not heeded. In addition to negative comments from supervisors and colleagues, Gallegos alleged she was left out of mandatory coaching sessions and meetings and was fired in 2014 after being told Wells Fargo could no longer employ her.
Wells Fargo denied the allegations. The judge recently dismissed part of Gallegos’s case against Wells Fargo, finding Gallegos has a history of job performance problems. The lawsuit was reportedly settled but terms of the settlement have not been released.
Meanwhile, a former employee of Caithness Corp. filed a lawsuit against the company alleging breach of oral contract, discrimination and wrongful termination. According to Norcal Record (6/10/16), Katherine Oster filed the lawsuit in California alleging she was discriminated against by her male coworkers, and was not given the equity interest she was promised by her employer. Oster alleges after she complained about gender discrimination she was fired in retaliation.
It is illegal for employers to discriminate against employees on the basis of gender, gender identity or other protected characteristics. Further, it is illegal for employers to retaliate against employees for asserting their rights. Even in at-will employment states - where employee/employer relationships can be terminated at any time for no reason - there are situations in which a termination could be found to be wrongful.
Employees who believe their rights have been violated or believe they have been subject to wrongful termination are able to file a lawsuit to recover lost wages and be reinstated to their position.
The Oster lawsuit is Oster v. Caithness Corp., et al, case number 3:16-cv-03164, in US District Court, Northern District of California.
California Labor Law Compliance Lawsuit Grew from Accident at Tesla
Fremont, CA: A developing issue in the global automotive industry pertaining to labor law compliance appears to have its roots in California and, specifically, the Tesla automotive plant. A California labor law compliance lawsuit filed by an injured worker toiling for a subcontractor during a construction job at the Tesla plant is effectively reverberating around the globe.
The recent California compliance labor lawsuit was filed by a worker who was seriously injured on the job while working at the Tesla automotive plant in May of last year. Plaintiff Gregor Lesnik was employed by ISM Vuzem, a subcontractor to Eisenmann Corp., a German-based enterprise that supplies paint shop systems to the automotive industry.
According to an investigative report in the Mercury News (5/15/16) of San Jose, Tesla Motors, Inc. had contracted with Eisenmann Corp. for the installation of a paint shop system at its facility in Fremont. Eisenmann, in turn, subcontracted some of the work out to ISM Vuzem, which is headquartered in Slovenia and a company that specializes in factory construction and the installation of equipment.
Lesnik, the plaintiff, claims in his lawsuit that he was working on the roof of the Tesla facility as an employee of ISM Vuzem when a temporary roof panel gave way and he fell, sustaining serious injuries. His lawsuit notes there was no safety net installed below the work area, he was not provided with a safety harness, and a safety supervisor was not present when the accident happened. He fell the equivalent of three stories and broke both his legs, sustained rib fractures and a concussion.
Lesnik noted in his California labor law compliance lawsuit that some 150 Eastern European workers had been provided to Eisenmann by ISM Vuzem in a subcontracting arrangement. The workers, the lawsuit said, worked long hours for low wages - as little as $5 per hour, or so it has been reported.
The labor law compliance lawsuit claims that such conditions were violations of California labor laws.
Tesla issued a statement noting that while not legally responsible for the injuries sustained by the employee of the subcontractor, it would nonetheless “take action to address this individual’s situation,” citing a moral obligation to do so.
“Tesla did everything correctly,” the company said in the statement, posted on its website. “We hired a contractor to do a turnkey project at our factory and, as we always do in these situations, contractually obligated our contractor to comply with all laws in bringing in the resources they felt were needed to do the job.”
Tesla pledged also to impose additional oversight to ensure that “our workplace rules are followed even by sub-subcontractors,” the statement said.
For its part, the German corporation has launched a probe into its supplier contracts. As for Lesnik, Eisenmann says it hired Lesnik through a subcontractor and thus, denies responsibility also. ISM Vuzem also denies responsibility and has tried to persuade Lesnik to drop his lawsuit.
Case information was not available.
Well-Known Fitness Brand Associated with California Wage and Hour Class Action
Los Angeles, CA: You would be forgiven if West Covina Corporate Fitness is a name that doesn’t ring an immediate bell for you. But Gold’s Gym might. In actual fact, West Covina Corporate Fitness Inc. (WCCF) does business in California under the Gold’s Gym banner, a popular brand amongst fitness buffs and professionals who like to get a little sweat equity in before work or after leaving the office for the day. However, WCCF is currently facing a California Wage and Hour class-action lawsuit over the alleged exclusion of commission wages earned by fitness trainers from hourly rates for the purposes of computing overtime.
The California Labor Code contains various wage and hour provisions for ensuring employees are paid their due. Standard practice holds that overtime pay is calculated as one-and-one-half the hourly rate when work time exceeds 8 hours in any given day, or 40 hours in a given workweek for all non-exempt employees.
The class-action lawsuit suggests that the exclusion of commission wages from the hourly rate effectively lowers the hourly rate for the purposes of computing overtime pay - and thus reduces the actual amount of overtime to which an employee would otherwise be entitled.
Another factor not uncommon to other California wage and hour lawsuits of this type is the allegation of missed meal and rest periods - again mandated by California labor laws. Employees are supposed to be provided with a paid, 30-minute meal period to be taken prior to the completion of the fifth hour of work during a daily tour of duty. The meal break is mandated to be uninterrupted by work commitments or other work-related distractions, ensuring the employee has a half hour to himself to nourish, rest and recharge. A series of shorter rest breaks are also required to be provided throughout the day.
The California wage and hour class action brought against WCCF alleges meal periods were often missed because WCCF did not have a designated system in place to ensure those meal periods were consistently provided, according to law. Were an employee be required to work through a paid meal break, he is effectively working overtime for those 30 minutes and should be duly paid.
The lawsuit was filed April 8 in Superior Court for the State of California, Case No. BC616304. Lead plaintiff in the proposed California Wage and Hour Class Action is Charles San Nicholas.
Meanwhile, a healthcare provider and the target for several lawsuits over the years has revealed through the release of its Form 10-K report filed with the US Securities and Exchange Commission (SEC) at the end of 2015, that a settlement to stem allegations in a California Wage and Hour lawsuit has been formally approved by the court.
The lawsuit, filed originally as a class action, was brought in April 2008 against DaVita Healthcare Partners Inc., a provider of kidney dialysis and an operator of several clinics throughout the country. The complaint, which was filed in the Superior Court of California, alleged that DaVita failed to provide meal periods, failed to pay overtime for missed meal periods and rest breaks, failed to pay overtime in general, and failed to comply with various other requirements as entrenched in the California Labor Code and state labor laws.
DaVita won the day on several trial court rulings, but the plaintiffs appealed and a tentative settlement was reached in June 2015. DaVita revealed in its Form 10-K filing that the proposed settlement, already having been granted preliminary approval, had been formally approved by the Court.
The value of the California wage and hour settlement in the DaVita case was not disclosed, but is presumed to be in excess of $3 million.
In Praise of the California Undocumented Worker
Washington, DC: The unbridled rhetoric that remains the overriding flavor of the Donald Trump Republican campaign is being tested in the highest court in the land following a hearing of legal arguments in United States v. Texas in April that will not only seal the fate of President Obama’s troubled executive actions on immigration, but will either fan the flames or douse the fire of the presumptive Republican nominee.
That decision has yet to be announced. However, any undocumented worker fearful of what may be coming can take heart in reassurances that in California, at least, various leaders are of the opinion that undocumented workers make the state more prosperous, and are urging the US Supreme Court to uphold Barak Obama’s executive action.
This position is good news for any undocumented worker who feels threatened in any way by an employer, or is disinclined to pursue a legal challenge for unfair treatment due to the rhetoric currently resounding throughout the national Republican landscape.
It’s a compelling issue, given that California is home to a little under one-third of the nation’s entire complement of undocumented workers: three million undocumented workers reside and work in the state of California alone.
A group comprised of state leaders in business, education, law enforcement and the religious community submitted a brief to the US Supreme Court for arguments heard on April 18 (a decision has yet to be brought down).
“Representing just seven percent of the state’s population, [undocumented workers] make up 34 percent of its farm workers, 22 percent of its production workers and 21 percent of its construction workers according to one estimate,” the group outlined in a brief filed with the court. “Today, the undocumented workforce alone contributes $130 billion to California’s gross domestic product (GDP) - an amount larger than the entire respective GDPs of 19 other states.”
This is good news for any undocumented worker who feels the cold shoulder coming from the Republican side - and from anyone who opines that the undocumented worker comprises a threat to Americans and wants them all banished. To those who are challenging the President’s executive action on immigration, supporters of the undocumented worker in California take the position that undocumented workers make the state stronger on a number of fronts, including manufacturing. To that end, the state of California remains the largest manufacturing hub in the entire country.
“It’s easy to get caught up in the white-hot political debate over this issue,” said Jot Condie, chief executive of the California Restaurant Association, in comments supporting the state’s submission to the Court. “But for us, this simply comes down to people - our fellow churchgoers, classmates, neighbors and hard-working individuals. Millions of loving families hang in the balance. Kicking the can on immigration reform can no longer be an option.”
The President’s executive action, first proposed in 2014, has been the subject of legal challenges, especially in Texas, which has taken the lead in a lawsuit involving leaders from various other Republican-led states claiming the President did not have the legal authority to enact the changes to immigration his executive action proposed.
A judge in Texas agreed, effectively blocking the proposed law. The US Supreme Court will make the final determination, and do so likely before the fall General Election.
Obama’s Deferred Action for Parents of Americans would afford deportation relief for some 1.1 million undocumented workers in California who are parents of legal children, born in the United States.
Stay tuned…
Tibble ERISA Lawsuit Dismissed
San Francisco, CA: An ERISA lawsuit nine years in the making has been dismissed, after making its way from the California courts up to the Supreme Court and being sent back to the lower courts. The lawsuit, which alleged violations of the Employee Retirement Income Security Act (ERISA), claimed breach of fiduciary duty. Now, the Ninth Circuit has dismissed the lawsuit, finding that the plaintiffs should have raised the claim of improper plan monitoring before the case went to the Supreme Court.
The Tibble lawsuit was filed against Edison International, and alleged plan fiduciaries made imprudent investments within the company’s ERISA plan. Plaintiffs claimed there were lower-cost versions of the investments available, but higher-cost versions were purchased. The problem, however, was the statute of limitations. Three of the six funds were initially purchased in 1999 but the lawsuit was not filed until 2007, beyond the six-year statute of limitations. Under the statute of limitations, lawsuits must be filed within six years of the most recent violation.
After three of the funds were dropped from the lawsuit, the plaintiffs appealed to the Supreme Court. The plaintiffs argued that the statute of limitations should not have begun running at the time the funds were purchased. Rather, violations should be counted for as long as the offending fund is part of the investment. In other words, it is not just the purchase of the investment but continually allowing it to remain in the plan that constitutes the most recent violation, the plaintiffs argued.
The Supreme Court agreed with the plaintiffs, finding the plan sponsors had an ongoing duty to monitor investments. The Supreme Court further ruled that the duty to monitor is separate from the duty of exercising prudence in choosing investments for an ERISA plan.
But, according to court documents, when the Supreme Court sent the lawsuit back to the Ninth Circuit, it instructed the lower court to determine whether the plaintiffs erred in not raising the “ongoing-duty-to-monitor” claim when the lawsuit was initially heard by the lower court.
The lower court found that it could not hear an argument on appeal that was not initially raised before the District Court or brought forward in the initial appeal. As a result, the Tibble claim was dismissed.
Although the lawsuit was dismissed, it still holds important implications for ERISA plan fiduciaries. The Supreme Court found that even where there is no change in an ERISA plan’s circumstances, fiduciaries have an ongoing duty to monitor investments and insure they are still in participants’ best interests. This means a fiduciary’s duties do not end with the purchase of the investment.
The lawsuit is Tibble et al. v. Edison International, et al, case number 10-56406, US Court of Appeals for the Ninth Circuit Court.
Doctor Files California FMLA Lawsuit
Los Angeles, CA: A wide-ranging California FMLA lawsuit that alleges violations of the federal Family and Medical Leave Act (FMLA) together with alleged violations against other federal and state statutes was filed in February by a former UCLA resident doctor. The lawsuit, which names among the defendants the University of California Board of Regents, claims that the university denied the plaintiff the right to maternity leave, and later terminated her residency at the university, allegedly because UCLA was not willing to accommodate an unrelated leg injury.
The FMLA is a federal statute that guarantees eligible workers up to 12 weeks of unpaid leave from their duties each year for family or medical reasons, without threat of job loss. The FMLA is observed in tandem with the California Family Rights Act (CFRA) and Family Temporary Disability Insurance (FTDI) observed by the state, which allows for time off with a pay level representing about 55 percent of weekly wages for up to six weeks. The CFRA differs from the federal FMLA in that there is no assumed job protection for workers.
None of the foregoing appeared to be any help to plaintiff Joy Ekwueme, who claims that she was not granted maternity leave while in residency at the UCLA Department of Obstetrics and Gynecology.
According to court documents, the plaintiff was accepted for residency training in March 2013. Ekwueme was pregnant at the time. An orientation session was scheduled for June of that year, which was around the time when the plaintiff was due to give birth. Ekwueme was told by a supervisor, or so it is alleged, that the department did not observe a protocol for maternity leave, requiring Ekwueme to attend orientation training 10 days after giving birth to her child.
Ekwueme also claims in her lawsuit, filed February 2, that supervisors would not accommodate a leg injury, for which she was required to wear a brace and, for a time, required use of a wheelchair.
The California FMLA lawsuit alleges that UCLA later terminated her from the residency program due to the university’s belief that her leg injury negatively impacted her work, a fact the plaintiff disputes given that test results showed that her performance was at the least on par and, in some cases, better than other doctors, or so it is alleged.
It is also alleged that two supervisors went through Ekwueme’s private medical records, a violation of the Health Insurance Portability and Accountability Act, or HIPAA, if proven true. The plaintiff also alleges a hostile work environment. However, the main thrust of the lawsuit continues to be an alleged lack of accommodation according to California FMLA regulations alleged to have been violated.
Case information was not available.
Medical Facility Hit with California Wage and Hour Class-Action Lawsuit
San Francisco, CA: It’s a fairly standard set of guidelines aimed at protecting health and well-being, together with maintaining and promoting fairness, for non-exempt California workers. So often, however, these basic tenets of employment are either set aside and ignored, or bypassed out of apathy or poor management.
No one is rushing to judgment as to what predicated the basis for a California Wage and Hour lawsuit recently filed and pending in San Francisco County Superior Court. However, a proposed class action against Total Renal Care, Inc. suggests a number of allegations that include missed rest breaks and meal periods, and failure to pay overtime in accordance with California wage law.
The State of California maintains a number of key statutes and guidelines that guarantee non-exempt workers receive extra pay for working in excess of eight hours in any given workday or 40 hours in any given workweek. Additionally, workers are to be provided with rest breaks and 30-minute meal periods that are mandated by law to be taken prior to an employee’s fifth consecutive hour of work.
The California wage and hour class action alleges that hourly, non-exempt employees at Total Renal Care were not able to do this. Missed meal periods and rest breaks suggest that workers are continuing to toil during times when they should be at rest, which could impact an employee’s overtime rate: to wit, an employee is now working in excess of eight hours in a workday or 40 hours in a workweek if rest and meal periods are missed.
The California wage and hour class action against Total Renal Care also alleges that the defendant manipulated time records in an effort to avoid paying overtime to qualifying workers. Under California law, salaried employees who fill a management function and are paid a certain salary threshold can be considered exempt from overtime, as they receive a much higher stipend than hourly workers and it is thus expected that from time to time, managerial and salaried personnel would put in extra hours on occasion, as needed.
According to court records, the defendant failed to “record and pay Plaintiff and other California Class Members for the actual amount of time these employees worked, including overtime worked.”
Hourly employees, who make less, are not exempt from overtime and thus are due under California law extra pay for additional hours worked, as well as state-mandated provisions for meal breaks and rest periods.
The California Wage and Hour lawsuit is Melynda Singh et al v. Total Renal Care, Inc., Case No. CGC-16-550847, filed March 8, 2016 in the Superior Court of the State of California, County of San Francisco.
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