California Labor Law News
A Tale of Two California Harassment Lawsuits
One of the California harassment lawsuits involves two female graduate students who have filed suit against UCLA, alleging that officials with the university failed to act on complaints of sexual harassment against a history professor. The plaintiffs are Nefertiti Takla and Kristen Hillaire Glasgow. The two women claim in court documents that they have endured emotional distress and are fearful that the whole situation has damaged their studies. They are also, according to a published report in the Los Angeles Times (6/16/15), fearful of returning to the UCLA campus.
The plaintiffs claim in their lawsuit that university officials, when apprised of allegations involving suggestive comments and unwanted advances, urged the two women to keep mum on the subject and refrain from pursuing formal investigations.
The harassment lawsuit holds that the accused began harassing plaintiff Glasgow in 2008, and that the harassment continued until 2013. Plaintiff Takla also alleges sexual harassment. The lawsuit, filed in June, names as defendants the regents of the University of California. The case is Nefertiti Takla and Kristen Hillaire Glasgow, Plaintiffs, vs. The Regents of the University of California, Case No. 2:15-cv-4418, US District Court, Central District of California, Western Division.
A separate California harassment lawsuit was filed last month in Orange County Superior Court against Cypress College. In their lawsuit, plaintiffs Gabriela Rodas and Porcia Ruiz allege sexual harassment at the hands of a Spanish teacher in 2013. According to the Orange County Register (8/6/15), when the plaintiffs complained to college officials about verbal and physical harassment, they were told that the teacher “has his rights,” according to the report.
The California harassment lawsuit alleges the accused would compliment the women on their clothing. But the accused would also repeatedly touch the plaintiff’s arms and backs, and gaze at their bodies in a sexually suggestive manner. The accused is alleged to have said that he wanted to tell them more but couldn’t because he “would get in trouble because it was inappropriate,” according to the suit.
At one point, the accused embraced one of the women in a bear hug from behind and allegedly touched her breasts and chest, the suit claims. The plaintiffs claim that when they reported this alleged behavior to a dean, they were told that little could be done: “My hands are tied,” is alleged to have been the reply. It is alleged in the California Harassment lawsuit that the same college dean later telephoned one of the plaintiffs and informed her that district administrators had considered transferring her to another school because the accused “has his rights.” The plaintiff’s reply: “What about MY rights?”
The Harassment lawsuit was filed in North Orange County Superior Court in August. Defendants named include Cypress College and the North Orange County Community College District. The lawsuit is Gabriela Rodas, et al v. Cypress College, et al, Case No. 8:2015-cv-00062.
California Labor Lawsuit Alleges Failure to Pay for Missed Meal Breaks
According to court documents, plaintiff Kriss Burgos was a non-exempt hourly employee at a Guess location in California. She alleges that she was required to toil without the availability of rest periods or a meal break, and was never compensated. California labor law holds that employers provide the capacity for regular rest breaks and an uninterrupted 30-minute meal period enjoyed while completely off-duty, after the fifth hour of duty.
By failing to compensate Burgos and other potential class members in the proposed class action, the employer in actual fact eked additional work hours from its employees without paying for the extra work, or so it is alleged.
“Defendants have failed to provide plaintiff and members of the proposed California class one or more rest periods on one or more days of their employment with defendants, and have failed to compensate them at the rate of one hour or pay at their regular rate of pay for each day on which one or more meal periods were not provided,” Burgos said in her California labor lawsuit.
Burgos - who was reportedly terminated from her position - also accuses Guess of failure to pay her final wages in a timely fashion. California labor employment law mandates that final wages to a terminated employee should be paid within 72 hours. Burgos alleges that not only were the final wages not paid on time, there were also deficiencies in the final statement of wages.
The plaintiff is seeking class-action status for her California labor code lawsuit on behalf of any similarly affected employees of Guess dating back four years. Burgos makes five claims of violations under California and labor law and is seeking straight time, overtime and double compensation that Guess allegedly failed to pay, as well as penalties and compensatory damages, attorneys’ fees and costs. The California labor lawsuit is Burgos v. Guess Retail Inc., Case No. BC592087, in the Superior Court of the State of California, County of Los Angeles.
In April, Guess Inc. was served with a lawsuit brought on behalf of disgruntled consumers alleging deceptive comparison pricing involving outlet stores under the Guess banner.
Arbitration Agreement “Unconscionable” in California Wrongful Termination Case
According to court documents, plaintiff Julie A. Carlson worked as the office manager for Home Team Pest Defense Inc. in Antioch, California. After five months on the job in 2013, Carlson was fired.
Carlson sued Home Team in 2014 alleging wrongful termination, harassment, breach of an employment agreement and other claims. Home Team, for its part, moved to compel the case to arbitration. That’s because Carlson had signed - allegedly under duress - an arbitration agreement at the time of her hiring.
The plaintiff had objected to signing the arbitration agreement, given that in her view it was too broad. However, her prospective employer applied a “take-it-or-leave-it” stance to the agreement, requiring that Carlson duly sign the agreement or else the offer of employment would be withdrawn.
The trial court denied Home Team’s application to compel arbitration in the case based on the signed agreement. The appellate panel upheld the lower court’s findings in the California wrongful termination case.
“Carlson was required to sign the agreement without time for reflection, and despite her objections to signing it after being told that a copy of the dispute resolution policy was not available to her for review,” the First Appellate District wrote in the 24-page published opinion. “We agree with the trial court that a high degree of procedural unconscionability accompanied the signing of the agreement in this case.”
The agreement was also one-sided, the appellate court noted. While the plaintiff would have been denied all access to the courts for any of her non-statutory claims, the agreement exempted the defendant from having to arbitrate its most likely claims against Carlson. In other words, the defendant wielded all the power and opportunity for redress against the plaintiff, leaving the plaintiff at the short end of an unbalanced playing field.
“We conclude that the trial court’s findings that the agreement was one-sided, objectively unreasonable, and lacked mutuality was supported by substantial evidence,” the opinion states.
The arbitration issues now settled, the California wrongful termination case can move forward. The case is Julie A. Carlson v. Home Team Pest Defense Inc. et al., Case No A142219, in the California Court of Appeal, First Appellate District.
Longtime Chef Claims Harassment in California Discrimination Lawsuit
The plaintiff in the California discrimination labor lawsuit is Enrique Marquez. He claims to have worked at Benihana in Torrance for some years - from about 1990 until March 27 of this year, or about 25 years - when various alleged affronts to California labor law caused him to quit.
Marquez maintains that in addition to requiring its chefs to provide their own knives for food preparation without reimbursement of same, the plaintiff claims he was denied meal breaks during an eight-hour shift, and forced to work off-the-clock without the necessary provision for overtime.
“Throughout his employment with defendants, plaintiff performed work for defendants and was not paid for some or all hours worked,” the complaint says. “Not only was plaintiff not paid for these additional hours he worked, but with respect to those occasions he was instructed to purchase food products from off-site markets, defendants did not reimburse plaintiff for the mileage he incurred using his personal vehicle traveling to perform the work of defendant,” in violation of the California Fair Employment and Housing Act and the California Labor Code.
There is also a labor law discrimination aspect of his case as well.
The plaintiff asserts that during the latter years of his tenure with his place of employ, he was harassed and bullied by co-workers based on his “actual and/or perceived national origin.” At various times Marquez was perceived as living and working in the US as an illegal immigrant.
The discrimination lawsuit asserts that his employer did nothing to help quell what the plaintiff asserts as a hostile work environment. On those occasions when Marquez complained to his superiors about discrimination and harassment, he was told to stop worrying about it, or so it is alleged. “Plaintiff was severely affected and suffered significant emotional distress as a result of the hostile work environment created by his co-worker,” the complaint says.
“In fact, in response to one complaint, defendants dismissed plaintiff by simply telling him he should not worry about, or ignore, the harassment because his immigration status was secure,” the complaint says. “Despite his multiple complaints, defendants did nothing to address plaintiff’s complaints or address the increasingly troubling hostile work environment.”
The plaintiff is seeking unpaid wages and overtime wages, with prejudgment interest, plus costs and attorneys’ fees. The California discrimination lawsuit is Enrique Marquez, et al. v. Benihana National Corp., et al, Case No. BC59043Q in the California Superior Court for the County of Los Angeles.
California Labor Laws Extend to Undocumented Workers
The truth is, however, even undocumented workers can file complaints about workplace violations without having their residency called into question. A 2002 California law provides undocumented workers full protection under state and federal law. In other words, if a worker who does not have legal documentation has his or her rights violated by an employer, he or she can file a claim against the employer.
This includes violations of discrimination laws. In 2014, according to the Los Angeles Times (6/26/14), California’s Supreme Court ruled that an undocumented worker who alleged he suffered disability discrimination was eligible for protection. Vicente Salas filed a discrimination lawsuit against his employer, alleging he was retaliated against for filing a workers’ compensation claim. The workers’ compensation claim was filed when Salas injured his back while at work.
Although the lawsuit was dismissed by two lower courts - after the employer found out allegedly Salas used someone else’s Social Security number to obtain employment - California’s Supreme Court found Salas could sue for back pay. In its ruling, the court noted the employer had to pay legally mandated wages to employees. Job protections extend to all workers “regardless of immigration status,” the Supreme Court wrote.
Many immigrants who enter the U.S illegally do not speak up about on-the-job violations because they are afraid of deportation. This means they are vulnerable to workplace abuses, although they have the same rights as all other employees.
Among the employment protections undocumented workers are entitled to are minimum wage, overtime, workplace safety - including protection from harassment and assault - certain discrimination laws and retaliation. Furthermore, it is illegal for an employer to report or threaten to report undocumented workers in retaliation for asserting their rights. If these rights are violated, workers can file claims against their employers.
Former Employees Sue California Radio Station for Wrongful Termination
The pair claims they were fired in retaliation for blowing the whistle on alleged fraud at the station, together with allegations the station had been employing illegal immigrants.
The defendants in the California labor lawsuit, Grupo Radio Centro LA LCC, deny the charges.
Plaintiffs are Sean O’Neill and Rosa Ambriz, the former vice president/general manager and office manager respectively. O’Neill had come to the radio station - the call letters were not disclosed - in January 2014 after having signed a four-year contract. He was terminated in August of last year, seven months into his contract. Ambriz was laid off from her position at the time O’Neill was fired.
The pair accuses Grupo of wrongful termination under the California labor code after they spoke out against alleged Nielsen ratings fraud and so-called “payola” and “plugola” - forms of payment and incentives to broadcast and/or promote products illicitly. There were also allegations the station had hired some employees and independent contractors that were not legally authorized to work in the US.
According to their California and labor law action, “[Grupo] took retaliatory and adverse actions against plaintiffs, including, but not limited to, subjecting plaintiffs to ongoing hostility in the work environment, subjecting plaintiffs to intolerable working conditions…and wrongfully terminating [the plaintiffs],” the complaint says.
Grupo, through its legal representatives, countered that O’Neill was fired due to missed sales goals, as well as allegations that he harassed employees and underperformed.
The four-count suit alleges violations of California Labor Code, breach of contract, wrongful termination and defamation, and seeks damages, interest and costs. O’Neill is attached to all four counts, whereas Ambriz is associated specifically with wrongful termination and violations under the California labor code.
A co-defendant in the case has been identified as Ricardo Sanchez, who is alleged to have written a memo dated July 8, 2014 to O’Neill that included “demeaning and defamatory remarks,” or so it is alleged. The e-mail is alleged to have accused O’Neill of creating low morale among sales staff, and accusing O’Neill’s department of showing poor sales performance. The e-mail also said that clients felt uncomfortable negotiating with O’Neill, and Sanchez accused O’Neill of “destroying” the station, or so it is alleged.
The case is Sean O Neill et al v. Grupo Radio Centro LA LLC et al, case number 2:15-cv-06116, in the US District Court for the Central District of California.
California FMLA Lawsuit Stymied by Tribal Immunity
However, there are various twists in this case given that the lawsuit was filed against the Morongo Band of Mission Indians - the operator of the slot facility - resulting in a ruling that sovereign immunity protects the tribe and its casino from FMLA claims.
The plaintiff in the California FMLA case is Crystal Muller, a former slot machine attendant who filed her complaint last November. According to court documents, Muller alleged she had fallen ill in 2010, requiring sick leave under FMLA. The leave had been approved. However, in mid-2013, Muller was terminated from her position. According to the California FMLA lawsuit, a manager at the casino had reported that Muller’s health issues were related to drug use, and that she was not capable of performing her job.
Muller countered that the drugs she was taking were prescribed for her disability - which wasn’t identified - and that the drugs did not impede her work performance in any way.
According to court documents, Muller lobbied for an appearance before the tribal council to plead her case. In her view, the real reason for her termination had little to do with drug use or job performance and everything to do with approved FMLA leave, and she sought arbitration for her case before her approved FMLA leave was set to expire. However, the plaintiff noted that she did not receive a response from the tribal council until a year later, only to be denied.
In her lawsuit, Muller was seeking either a court ruling forcing arbitration with the tribe through a court order or a grant of equitable relief. The defendants, in their response, moved to have the case dismissed - a move opposed by the plaintiff as being premature, given that in her view she had not exhausted all available remedies at the tribal level.
However, in her ruling, US District Judge Virginia A. Phillips noted that sovereign immunity protected the tribe and the casino it operated from claims under FMLA. Judge Phillips said the tribe did not consent to face FMLA claims by entering a gaming compact with the state of California that obligates the tribe to meet Fair Labor Standards Act requirements and waives sovereign immunity to casino-related personal injury and property damage claims.
“The court will not infer a waiver of immunity as to certain types of claims based on a separate, unrelated waiver of different categories of claims,” she wrote.
“Defendants correctly point out that no tribal remedies are available,” she wrote. “Exhaustion is not required, in a case such as this, where it would be futile.”
The judge also dismissed Muller’s claims against two individual tribal officers, finding their official actions are protected by the tribe’s immunity.
The case is Crystal A. Muller v. Morongo Casino Resort and Spa et al., Case No. 5:14-cv-02308, in the US District Court for the Central District of California.
Class-Action Status Given to Apple Wage and Hour Lawsuit
The initial lawsuit - which was dismissed in 2014 after a Supreme Court decision in a different case - was refiled. It alleges that because the security check is for the sole benefit of Apple and is done in all Apple retail stores across the US, that employees should be paid. Typically, employees undergo security screening after they have clocked out for their meal break or at the end of the day, meaning any time spent waiting for a manager to be free to do a check is unpaid time.
According to the initial lawsuit, that time can add up. For an employee leaving twice during a shift, the wait can mean anywhere from 10 to 15 unpaid minutes. For full-time employees, that adds up to uncompensated overtime.
The lawsuit calls Apple’s conduct regarding the unpaid security checks “illegal and improper” and says employees throughout the US are owed millions of dollars in wages and overtime. Amanda Frlekin, a named plaintiff in the original lawsuit, recorded between 10 and 15 uncompensated minutes during every shift, adding up to between 50 and 90 minutes over the course of the week.
“This daily 10-15 minute uncompensated waiting time during security checks was done in order to undergo searches for possible contraband and/or pilferage of inventory,” the lawsuit alleges. “Because such screening is designed to prevent and deter employee theft, a concern that stems from the nature of the employee’s work (specifically, their access to high value electronics and merchandise), the security checks and consequential wait time are necessary to the employee’s primary work as retail Specialists and done solely for Apple’s benefit.”
Workers are allegedly prohibited from leaving the store prior to a screening, and employees who refuse the security checks can face disciplinary action, including termination.
Apple has argued that the time spent undergoing bag checks is negligible and therefore should not be compensated. It also argues that not all managers conduct security screenings.
Uber Driver Is Employee, according to California Labor Laws
Last month, the start-up cleaning company Homejoy threw in the towel. With four lawsuits fighting over misclassification - like Uber, workers were classified as independent contractors rather than employees - CEO Adora Cheung said the company wasn’t able to raise funding, according to the San Francisco Chronicle.
The California Labor Commissioner’s Office on June 17, 2015 said that Uber must classify its drivers as employees rather than independent contractors. As employees, the drivers would be entitled to minimum wage, meal breaks and overtime (many drivers say they typically work 12-hour days), reimbursement for expenses such as gas and car maintenance, and other benefits and protections.
The ruling by the California Labor Commissioner’s Office came about in a claim brought by an Uber driver. San Francisco-based Barbara Ann Berwick was awarded $4,000 in expenses, which Uber is appealing. If the ruling holds, other Uber drivers could claim employee wages and benefits.
Uber on July 9 filed a motion to oppose a class-action lawsuit filed in California’s Northern District Court claiming that more than 160,000 of its drivers should be classified as employees and are therefore misclassified. Uber argues that, should the class-action suit be successful, it “could force Uber to restructure its entire business model.” It could also have a ripple effect across the burgeoning start-up culture, leading other companies with similar structures to recalibrate,” according to TIME.
On the heels of the Uber California lawsuits, Toronto taxi drivers are launching a class-action lawsuit against Uber, seeking more than $307 million (USD). Reuters reported that the proposed case covers all drivers and taxi companies in Ontario.
And Uber is also up against Congress, which wants to create some kind of a “benefits safety net.” In her first economic policy speech, Hillary Clinton said that “This ‘on demand’ or so-called ‘gig economy’ is creating exciting opportunities and unleashing innovation but it’s also raising hard questions about workplace protections and what a good job will look like in the future.” According to The Hill, Senator Richard Blumenthal (D-Conn.) took her comment one step further, saying that misclassifying workers is
Labor attorney Shannon Liss-Riordan said that two California misclassification cases are headed toward trial. She believes that companies such as Uber will continue to be successful if they reclassify their drivers as employees and assure that the drivers are earning at least minimum wage. Start-up companies argue that independent contractors have more flexibility and can be their own bosses, but as Liss-Riordan points out, employers also give their employees flexibility, and it is a growing trend.
One estimate has Uber valued at $41.2 billion, making it the most valuable start-up in the US.
Will Paid Sick Leave Spur California Labor Lawsuits?
If an employer denies an employee accrued paid sick leave and/or retaliates in any way when an employee tries to use paid sick leave, that employee can now file a labor law complaint with the California Labor Commissioner’s Office. After a complaint is filed, the Commissioner’s Office has the authority to investigate the complaint and determine if damages and penalties will be awarded.
Many of those 6.5 million workers (about three-quarters of the state’s low-wage workers) who will benefit from this new law for the first time are parents who have to take care of their children. Too often children would show up at school sick because the (often single) parent feared getting fired if they didn’t show up at work. Having to send a sick child to school or leaving a sick child at home alone is heart-wrenching. Hillary Clinton said that no one should have “to choose between keeping a paycheck and caring for a new baby or a sick relative.”
And many employees who were never given paid sick leave, or any paid time off, are workers earning minimum wage. People in restaurants and retail who are barely scraping by and go to work sick (yes, the person who cooked your food could have the flu). Assembly member Lorena Gonzalez, D-San Diego, said that “We just want employers to know it’s not an option, and employees can’t be penalized for using their paid sick days. They can’t be fired or have their hours cut. It’s important for them to know they have the right to earn these paid sick days.”
The new law is complicated, and another reason why paid sick leave complaints may spur lawsuits. But every employee should know their rights and exactly what is covered. In a nutshell, for each 30 hours that somebody works, they get one hour of sick leave. The AB 1522 says that businesses will be required to show how many hours of paid sick leave workers have earned on their pay stubs. Employers can either choose to have workers accrue one hour of paid sick leave for every 30 hours worked, or grant employees three days of paid sick leave upfront, to be used within a one-year period.
Every business is required to provide this benefit, even if it only has one employee. Whenever possible, employees must provide “reasonable advance notification” orally or in writing of their desire to use the leave when the need for sick leave is foreseeable. Of course you can’t always know beforehand when you will be sick but you can also use sick leave for the following:
• the diagnosis, care or treatment of an existing health condition
• the preventive care of an employee
• an employee’s personal family member (including spouses, registered domestic partners, children, parents, grandparents, and siblings)
• employees who are victims of domestic violence, sexual assault, or stalking
If they haven’t done so already, employers might want to familiarize themselves with the new paid sick leave law and revise their policies and procedures. And employees shouldn’t rely on their employers to explain their benefits.
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