California Labor Law News
California Amends Employment Discrimination Regulations
Sacramento, CA: As of April 1, 2016, California has amended its Fair Employment and Housing Act regulations to include new requirements for employers. These new requirements involve discrimination, harassment and retaliation in the workplace, and cover all employers who regularly employ five or more individuals. Employers who violate the regulations could face California employee lawsuits.
Under the amended California employment regulations, employers are required to establish a written discrimination, harassment and retaliation prevention policy. That policy must include a list of all protected categories covered under the Act, a description of the company’s complaint process, and a statement prohibiting retaliation against employees who report complaints or participate in an investigation. The complaints process must be designed to ensure complaints are kept confidential where possible, dealt with in a timely manner, impartially investigated, accurately documented, offered appropriate response options, and closed in a timely manner.
The amended regulations also define key terms as they relate to gender discrimination. Under the Fair Employment and Housing Act, employers cannot discriminate against employees or job applicants on the basis of gender, gender identity or gender expression. The amendments set out definitions of gender expression, gender identity, sex, sex stereotype and transgender.
Under the amended law, discrimination, harassment and retaliation protections now extend to unpaid interns and anyone else who is serving in a program that provides unpaid work or industry experience, such as apprentices. Furthermore, unpaid workers must be given reasonable accommodation for religious observances.
Sexual harassment prevention has also been updated. Employers who are required to provide sexual harassment training every two years to certain employees must now document the training and keep that documentation for a minimum of two years. Employers must also keep copies of written training materials and written questions and answers. Training must include information about the negative effects of workplace harassment and elements of abusive conduct.
“The training should specifically discuss the elements of ‘abusive conduct,’ including conduct undertaken with malice that a reasonable person would find hostile or offensive and that is not related to an employer’s legitimate business interests,” the amendments state. “Examples of abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”
Where employers have violated any California discrimination or harassment law, employees may be eligible to file a lawsuit against their employer.
California Warehouse Cited for OSHA Violations, Faces Class-Action Lawsuit
Wilmington, CA: A complaint by the National Labor Relations Board (NLRB) together with a California OSHA labor class-action lawsuit filed in late 2014 combine to allege both health and safety hazards, and retaliation against union activity undertaken by workers at the California Cartage Company and Orient Tally Company.
According to The Daily News of Los Angeles (3/30/16), the warehouse is located in Wilmington and is involved in the movement of goods for a number of retail giants including Lowe’s, Kmart and Amazon. Workers at the warehouse have been railing against what they have described as less-than-adequate working conditions at the site, and with the help of a non-profit entity advocating for non-unionized workers, have lodged complaints against three managers at the facility, accusing them of discouraging employee efforts to organize a union.
It is alleged that Hermann Rosenthal, Freddy Rivera and John Rodriguez threatened to fire any employee who participated in union-organizing activities. Those allegations have yet to be proven in a court of law.
The specific working conditions, about which employees are concerned, were not spelled out in the report. However, it was reported that the facility has been the recipient of various Cal/OSHA citations.
According to federal and state laws, employers are mandated to provide workplaces and working environments that are safe and free from unnecessary hazards.
It’s been just over a year that alleged conditions on various fronts at the facility achieved a sufficient level of angst for a class-action lawsuit to be filed in December of last year. That lawsuit alleged wage theft and various labor law violations.
In recent months, employees at the facility, who are tasked with driving forklifts and the loading and off-loading of large appliances and other goods from shipping containers, have been campaigning toward organizing. The Warehouse Worker Resource Center (WWRC) brought the lawsuit in December 2014. Celene Perez, the co-director of the non-profit advocacy group, noted that the more recent complaint by the NLRB outlines a number of alleged incidents from July through October of last year, including one incident where a worker was subjected to an interrogation about employees taking breaks while working in hot conditions.
Perez says the complaint, coming from the NLRB, is an important development. “It is a very big deal for us to have gotten this complaint because it means that the federal government has investigated and found merit,” Perez said in comments published in The Daily News of Los Angeles. She added that the case will go to trial in June unless a settlement is reached. “It sends a clear message and the workers feel validated.”
The WWRC filed various charges relating to alleged retaliatory conduct over the past six months. Those charges caught the attention of the feds, who investigated and filed their own complaint. Case information was not available.
California Supreme Court Rules Employees Entitled to Seats
Sacramento, CA: The Supreme Court of California has ruled that employees must be provided with seats if sitting does not interfere with the work they are doing. The decision came after a California employee lawsuit filed by workers at CVS and Chase Bank, who argued they were forced to stand on the job despite California law requiring access to seats where work reasonably permits sitting.
According to court documents, at issue in the lawsuit was the requirement that all working employees must be provided with suitable seats “when the nature of the work reasonably permits the use of seats.” The question was whether that phrase referred to individual tasks performed throughout the workday or the entire range of duties in a day or shift. Employers argued that if a portion of the employee’s job duties required employees to stand, seating could be denied.
Further, the Supreme Court considered whether the nature of “reasonably permits” should include an employer’s business judgment. For example, if the employer is concerned about how customers react to a bank teller sitting on the job, does that give the employer the right to deny seating to employees?
“There is no principled reason for denying an employee a seat when he spends a substantial part of his workday at a single location performing tasks that could reasonably be done while seated, merely because his job duties include other tasks that must be done standing,” Justice Carol A. Corrigan wrote for the court, which ruled unanimously. “Further, defendants’ view could also result in different seating requirements for employees with different duties and job descriptions while they perform the same work (italics in original).”
For example, a stock person and a sales clerk could both spend time working at a cash register, but if an overall view of the employee’s tasks is used, the stock person could be denied a seat while at the cash register even though a sales clerk would be permitted to sit.
The judges wrote that courts should look at the actual work done and time spent at each task when determining if employees should be permitted to sit, rather than strictly looking at individual job tasks or an employee’s overall job duties.
“If the tasks being performed at a given location reasonably permit sitting, and provision of a seat would not interfere with performance of any other tasks that may require standing, a seat is called for,” the judges wrote.
And although an employer’s business judgment is relevant to the determination of allowing seating, the court found that it was not the only factor. An objective determination about seating should be made, rather than one that focuses on whether customers might be offended by sales clerks who sit at the cash register.
The lawsuit is Kilby v. CVS Pharmacy, Inc., S215614. The ruling came from the Supreme Court of California after the 9th Circuit Court of Appeals requested input.
Former Firefighter Awarded $2.3 Million
Vallejo, CA: A former California firefighter has been awarded $2.3 million in his wrongful termination and retaliation lawsuit, filed after he was allegedly fired for complaining about breaches in procedure. The plaintiff, Todd Milan, alleged in his wrongful termination lawsuit that two of his superiors retaliated against him when he reported the breaches to officials.
According to Patch (3/23/16), Milan attended a fire at a mobile home on September 29, 2011. During the fire, Milan was required to enter the mobile home and expected that his captain would enter with him, as per requirements that firefighters work in pairs. The captain reportedly did not enter the mobile home with Milan and did not have his gloves on while at the fire.
Speaking with KTVU (3/18/16), Milan said he ran into the burning mobile home to rescue a paraplegic man trapped in his bed. Although Milan reached the man while he was alive, he was unable to pull him from the mobile home without help and had to leave because of the intensity of the heat. The man later died from his injuries, and Milan says he suffered burns on his hands, face and back. Milan was reportedly blamed for the man’s death and reprimanded for his actions.
“At all times herein mentioned, Defendant’s managerial employees knew that the statements in [the captain’s] written report and reprimand were false, were being used to cover up errors of ranking officers, and were intended to set up Plaintiff for discipline and ultimate termination,” court documents allege.
Milan alleges the fire chief told him his story about the incident should match the accounts given by other firefighters, which he took to be a threat. He also had allegedly previously been told he should not speak with the Division of Occupational Safety and Health due to a PTSD diagnosis. After Milan reported the incident to the Division of Occupational Safety and Health, his superiors reportedly retaliated against him, including not allowing him to retake a failed examination, being falsely accused of being late for work or leaving early, and being written up based on false or misleading statements.
The plaintiff filed the lawsuit in November 2012 after he was dismissed from his job. A jury agreed with Milan and awarded him $2.3 million.
The lawsuit was Milan v. City of Vellajo, case number FCS042585, in Superior Court of the State of California, County of Solano.
Freelance Writer Takes on Stadium Contractor in California Wage and Hour Lawsuit
Santa Clara, CA: It’s an interesting position: launch a proposed class-action lawsuit, and then write all about it. But that’s what Gabriel Thompson has done. Gabriel, writing in Slate Magazine (2/19/16), reveals that he is the lead plaintiff in a California wage and hour lawsuit against the entity contracted by Levi’s Stadium in Santa Clara to provide food and beverage services to the Bay area stadium, which is home to the San Francisco 49ers and host of Super Bowl 50.
A freelance writer, Thompson has no quarrel with the stadium. However, working as he did for a handful of games as an employee of defendant Centerplate, the lead plaintiff in the proposed class action is none too pleased with Centerplate’s alleged failure to pay its employees for all hours worked, failure to provide adequate rest periods as mandated under California law, together with other unnamed business practices the lawsuit deems as unfair.
Thompson asserts that during his brief time with Centerplate working four games at Levi’s Stadium - including the big Super Bowl 50 game - he was unable to take rest breaks even after working a successive 12 hours, or so it is alleged, in clear violation of California wage and hour laws.
There are also allegations that during the Super Bowl game, Thompson and his fellow employees were not paid for time they spent waiting for, and then traveling on, employee shuttles to and from the stadium. Thompson asserts that on Super Bowl Sunday he worked a total of 17 hours. Five of those hours, it is alleged, were spent waiting for transit or spent in transit.
The California wage and hour lawsuit asserts those five hours should have been considered paid hours. Instead, it is alleged those five hours were in effect off-the-clock work, when in fact, they should have been paid hours. Thompson notes that while he was paid straight time and overtime (at time-and-a-half) for the hours worked beyond 8 hours in the workday, there was no additional pay for the remaining five hours of transit and waiting for transit, together with missed rest periods that, combined, took him to 17 hours worked in total if the missing five hours were factored in.
There would have been double-time-and-a-half for any hours worked beyond 12 hours in a single day, or so it is alleged.
“In 2009, a study by three organizations - the UCLA Institute for Research on Labor and Employment, the National Employment Law Project, and the UIC Center for Urban Economic Development - found that low-wage workers in Chicago, Los Angeles and New York City lost more than $56 million per week due to various forms of wage theft and other forms of labor violations,” Thompson writes in Slate Magazine. “Last October, California Governor Jerry Brown signed legislation that makes it easier for workers to recover back wages, including a provision that holds individual executives, and not just the corporate body, accountable for unpaid wages.”
Provided the California wage and hour lawsuit is granted class-action status, the suit would represent all employees of Centerplate who worked at Levi’s Stadium during the entire 2015-2016 NFL season.
The lawsuit is Gabriel Thompson et al v. Centerplate of Delaware Inc. et al, Case No. 16-cv-291643, filed February 17, 2016 at Superior Court for the State of California.
Court Grants Class-Action Status to ERISA Lawsuit
Los Angeles, CA: A California District Court judge has granted class certification to a California ERISA lawsuit filed against Transamerica Life Insurance Company. The lawsuit, filed by Jaclyn Santomenno and others, alleged Transamerica charged excessive fees, in violation of the Employee Retirement Income Security Act (ERISA).
According to court documents, Transamerica sells a 401(k) plan that is geared to small- and medium-size employers. That plan consists of a bundle of investment alternatives and administrative services. Employers who selected the plan package had 170 investment options from which the employers were able to select a smaller number to offer employees in their benefits package. They could either choose their own investments à la carte, or choose a pre-selected lineup.
That pre-selected lineup would qualify for Transamerica’s “Fiduciary Warranty,” according to court documents, which promises the investments meet ERISA’s “broad range of investments” requirement as well as its “prudent man standards.” Furthermore, if employers face a breach of fiduciary duty lawsuit from employees related to the plan, Transamerica reportedly promised to indemnify the employer and make the plan whole.
Each investment option in the plan is a separate account, the lawsuit states, and each separate account is linked to an underlying investment. Some of those accounts are traded by investment managers who are not affiliated with Transamerica. Transamerica, the lawsuit alleges, charges fees for most of the accounts, even accounts the company does not provide any services for.
Plaintiffs allege fees charged by Transamerica are excessive and, in some cases, unnecessary, breaching fiduciary duty under ERISA. Further breaching fiduciary duty, the lawsuit claims, Transamerica did not use its considerable weight to invest in the lowest price share class of mutual funds. Finally, the lawsuit alleges that Transamerica affiliates knowingly made transactions that are prohibited under ERISA.
In the first motion for class-action status, Judge Dean D. Pregerson denied class certification. Plaintiffs submitted a second motion for class certification, which the judge granted. In granting the motion, the judge noted that the class potentially includes 300,000 participants in around 7,400 plans, and found there were similar questions of law faced by each of the proposed class members.
“What makes the fees excessive, Plaintiffs explain, is the rates charged by TIM [Transamerica Investment Management] and TAM [Transamerica Asset Management] to outside clients, which are considerably lower than the fees charged to TLIC plans,” Judge Pregerson wrote in his decision.
The lawsuit is Jaclyn Santomenno et al v. Transamerica Life Insurance Company, et al., Case number 2:12-cv-02782, filed in US District Court, Central District of California.
Discrepancy between California Family Leave Act and FMLA
Sacramento, CA: A new study published by Forbes suggests that although employees in California have access to paid family leave, few employees are using it. A major reason for that discrepancy could be that although California’s Family Temporary Disability Insurance (FTDI) allows for paid family leave, it does not offer job protection for workers who take the leave. That protection is offered by the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA), but those acts only apply to certain employees who are on unpaid leave.
According to the Forbes (3/4/16) article, California was the first state to allow for paid family leave. Under FTDI, employees are eligible for around 55 percent of their weekly wage for up to six weeks. And although the number of employees using the leave is increasing, in total fewer than two percent of the California workforce used the leave in 2014.
One reason for the discrepancy between availability and use of the program could lie in the job protections. The FTDI allows people paid leave, but it doesn’t offer job protection. That’s offered through the CFRA and the FMLA.
Those acts offer job security, but only to employees who have worked at least 1,250 hours in a year at a company with more than 50 employees. Under FMLA and the CFRA, employees who work for a covered employer are eligible for up to 12 weeks of unpaid, job-protected leave in a year.
In other words, workers in California who are employed by small businesses are eligible for the leave but not entitled to a job at the end of the leave. The prospect of losing a job could be incentive not to take the leave at all.
As of January 1, 2016, California updated its family leave laws. Updates including requiring employers to allow employees to use their available paid sick leave for the diagnosis, care or treatment of an illness of that employee’s family member. The update also includes requiring employers with 25 or more employees at the same location to allow the parent or guardian to take up to 40 hours off each year to find, enroll, or reenroll a child in a school or child care provider; to participate in activities of the school or child care provider; or to address a child care provider or school emergency.
In addition to allowing parents to take time off for their children, Senate Bill 579 allows anyone who is a guardian to the child to take the time, including stepparents, foster parents and grandparents.
Employees whose rights under California laws or the FMLA are violated may be eligible to file a lawsuit against their employer.
University of California, Former Berkeley Dean Face Harassment Lawsuit
Berkeley, CA: The esteemed Berkeley School of Law is writhing in the shadow of yet another cloud of controversy following the resignation of the dean of law at the University of California school, amidst allegations of sexual harassment. To that end, the dean’s former executive assistant has launched a California sexual harassment lawsuit against both the former dean of law, and the University of California Board of Regents for, in the plaintiff’s view, failing to undertake sufficient measures to prevent such harassment from taking place.
According to a report from the Associated Press (AP 3/10/16), Tyann Sorrell accuses Sujit Choudhry of unwanted kissing and touching that began soon after Choudhry joined Berkeley as the dean of law. Sorrell served as his executive assistant. Her lawsuit accuses Choudhry of near-daily unwanted contact and what the plaintiff interprets as sexual advances. The contact, according to the AP report, included but was not limited to bear hugs, arm and shoulder rubs, kisses on the face, and her boss once placing her hands on his waist.
The defendant, according to the California harassment report, told investigators that his behavior was intended only as gestures of appreciation or emotional support, and not sexual harassment. Choudhry also disputed the frequency at which the plaintiff asserts the unwanted touching took place.
That said, the defendant did not deny his conduct.
When the plaintiff reported the dean’s behavior to Berkeley administration, an investigation revealed that Choudhry had “demonstrated a failure to understand the power dynamic and the effect of his actions on the plaintiff personally and in her employment.”
Berkeley’s response was to dock Choudhry’s pay by 10 percent for a period of one year, required him to undergo counseling, required that he apologize, and allowed Sorrell to take leave from her position with full pay. Berkeley provost Claude Steele noted in the AP report that in the university’s view the consequences doled out following the California employment harassment investigation constituted “an appropriate and effective response, and would produce the necessary changes in [Choudhry’s] behavior.”
That wasn’t good enough for Sorrell, who earlier this month launched a California employment harassment lawsuit against Choudhry and the university. Her legal team notes that in the plaintiff’s view, the university failed to approach the matter with sufficient seriousness for a respected law school dealing with accusations of sexual harassment.
Sorrell filed her California harassment lawsuit on March 8. The following day, Choudhry approached his employer with an offer to step down from the dean’s post in an effort to minimize any distractions the lawsuit might foster for the law school.
It was reported that Berkeley agreed to those terms, placing Choudhry on an indefinite leave of absence while the employment harassment lawsuit is active. His salary will drop from $415,000 - which he earned in his role as dean - to a professor’s salary of $284,200. It is assumed he will continue to earn the salary while on leave. It is not known if Choudhry would return to the dean’s position pending the outcome of the California Harassment lawsuit. It was reported that an interim dean would serve in his place.
Further details of the harassment lawsuit were not available. Berkeley School of Law has faced allegations of harassment involving its faculty in the past.
California State Bar Faces $15 Million Wrongful Termination Lawsuit
Los Angeles, CA: The California State Bar faces a $15 million wrongful termination lawsuit alleging a former administrative assistant was fired for reporting ethical violations. Sonja Oehler filed the California wrongful termination suit, claiming she was fired because she knew about incompetence on the part of State Bar leadership and further claiming that other employees were also wrongfully fired from their jobs.
According to Courthouse News Service (2/19/16), Oehler alleges she was fired not for a lack of skill or ability to carry out her job duties, but because she was aware of ethical issues within the California State Bar.
Among Oehler’s complaints about the State Bar are that money was mismanaged - including sending a director to San Francisco for a three-hour hearing but paying for four nights at the Palace Hotel, and reimbursing a director $30,000 in unapproved costs. Oehler also alleges the former chief prosecutor moved discipline cases to a deferred list and then back to active status to lessen the appearance of a backlog of cases.
Furthermore, Oehler claims the State Bar ignored hundreds of complaints of fraud filed by Mexican workers who were scammed of their money while seeking American citizenship. And the lawsuit claims that Jayne Kim, former chief prosecutor, faced ethics complaints about her practices but dismissed them instead of having them sent to a third party.
Former executive Joseph Dunn has also filed a lawsuit against the California State Bar, alleging he was fired when he exposed massive cover-ups within the organization.
The California State Bar says it denies the allegations and will defend itself. Oehler seeks $10 million in damages from wrongful termination and $5 million for punitive damages.
Although California is an at-will employment state - meaning an employer can end the working relationship at any time for any reason - there are circumstances in which an employee can file a wrongful termination lawsuit. If an employee has an agreement setting out the conditions under which employment can be terminated, any termination that violates the agreement could be considered wrongful. Also, employers cannot fire an employee for reasons that violate public policy or for reasons that violate statutory law - such as discriminatory reasons.
Employees who feel their employment termination violates California state laws may be able to file a lawsuit to recover lost wages and be reinstated to their job.
The lawsuit is Oehler v. The State Bar of California et al., case number BC610699.
California Wage and Hour Class Action Settled for $2.25 Million
Oakland, CA: Final approval has been granted for a proposed settlement in a California Wage and Hour Lawsuit against Bank of America alleging improper classification of some employees. The settlement, granted final approval on January 14 of this year, is worth $2.25 million.
According to court documents, plaintiff Zelma Brawner was an employee of the Bank of America in California for almost three decades at the financial institution’s back-office facility located in Concord. Brawner alleged in her California Wage and Hour class action that the defendant misclassified dedicated service directors (DSDs) as administrative employees - denying anyone working as a DSD overtime pay.
The DSD is a kind of personal concierge available to bank customers and clients, and according to the plaintiffs, “If the customer wishes to open a new account, close out an old account or inquire about the status of a transaction in an existing account, the customer can contact the DSD and expect a personalized and prompt response,” the employees said in the motion. “The Bank did not pay any overtime premium pay to the DSDs because it classified them as ‘administrative’ employees who are ‘exempt’ from the overtime protections set forth in Wage Order 4.”
In her California wage and hour lawsuit - first brought in June 2014 - Brawner cited no fewer than five violations to California wage and hour laws: failure to pay overtime wages, failure to provide accurate itemized wage statements, willful failure to pay all wages due within 72 hours after separation from employment, violation of California’s unfair labor law, and violation of the Labor Code Private Attorneys General Act.
The defendant, Bank of America, is reported to have denied the allegations, but agreed to the settlement as a pathway to avoid a costly and lengthy litigation.
In her summation granting final approval of the settlement, the judge in the case noted that “litigation poses risks and is expensive, and an evaluation of the strengths and weaknesses of the plaintiff’s and the defendant’s cases militates in favor of settlement,” Judge Yvonne Gonzalez Rogers wrote in the order granting final approval. “Second, the settlement treats class members fairly, allocating the money to them based on a formula weighted by their annual salary, estimated overtime hours and eligible workweeks.”
The settlement is reported to cover DSDs, treasury service consultants and senior treasury service consultants numbering 133 in total and having worked for Bank of America at the Concord facility from May 9, 2010 through January 14 of this year, the date at which the California Wage and Hour Settlement was formally approved.
Following dispensation for court costs, legal fees and other deductions, some $1.6 million will be available for class members according to the judge’s distribution template, noted above.
The case is Brawner v. Bank of America National Association, Case No. 3:14-cv-02702, in US District Court, Northern District of California.
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