California Labor Law News
Manager Who Was Injured While Stopping Robbery at Rite Aid Recovers $3.7 million
The Los Angeles Superior Court jury ruled in the case of Robert Leggins against Rite Aid Corporation, which had employed Leggins since 1985.
After more than 20 years of exemplary performance, Leggins was injured in 2007 while attempting to stop a robbery at his store. The injury required several surgeries and a number of medical leaves and made it difficult for Leggins to lift, push or pull heavy objects. He still performed these tasks but with pain.
Escalating and repeated harassment
In his complaint, Leggins charged that in the years following his injury he endured escalating and repeated harassment and discrimination based on his disability. For example, he was subjected repeatedly to racial slurs like “I can get your old black ass fired” by his supervisors, managers, and directors, who also engaged in intentional actions that resulted in Leggins being treated less favorably after he returned to work from his neck surgery.
His lawyer, Carney Shegerian of Shegerian & Associates, Inc., in Santa Monica, detailed the series of increasingly discriminatory actions, including the fact that his direct supervisor harassed and discriminated against him and often maliciously forced him to perform physically challenging tasks when he was in pain.
He explained to the court how he endured racial slurs from co-workers, was told, “I can get your old black ass fired” and was ignored and further criticized and harassed when he complained to supervisors of these and other derogatory statements.
Fired on pretext
Ultimately, in 2013, after enduring years of steady harassment and discriminatory behavior and having multiple requests to be transferred to a different store rejected and ignored, Leggins was suspended for closing his store at 5:30 p.m. on New Year’s Day, despite the fact that he had received permission from his manager to close early.
A month later, Rite Aid terminated Leggins after 27 years of employment.
Shegerian and Leggins explained to the court how Leggins’ disability, and complaints of harassment and discrimination, and need for medical leaves were substantial motivating reasons for the termination.
As a direct result of the wrongful termination and discriminatory and harassing behavior of his former employers, Leggins suffered humiliation, emotional distress, and mental and physical pain and anguish.
Employers on notice
The jury ruled unanimously in favor of Leggins on all counts, including wrongful termination, disability discrimination, retaliation for making complaints of harassment and discrimination and failure to prevent discrimination, among other claims.
With the help of Shegerian & Associates, Leggins will now receive compensation for his suffering. The breakdown of the money that will be awarded includes $213,213 for past economic loss; $1,055,915 for future economic loss; $1,500,000 for past non-economic loss; $1,000,000 for future non-economic loss; and $5,000,000 in punitive damages, for a grand total of $8,769,128.
“Hopefully this verdict and the justice served in Mr. Leggins’ case will put all employers on notice that they simply cannot discriminate against employees for any reason - not based on race, on age, because of disabilities - not for any reason,” said Shegerian.
California Labor Paid Sick Leave Laws Clarified, Still Complicated
In sum, The Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) was signed into law by Governor Jerry Brown last year for a planned two-stage implementation at the beginning of 2015. Various changes to record keeping and the posting of notices were brought in at the first of the year, followed by the implementation of changes to accruals and reporting on July 1.
The aforementioned changes to the California labor code were part of the original adoption of AB 1522. However, employers found the rollout somewhat overwhelming, requiring an update to AB 1522 in an effort to straighten out some of the confusion.
That update came in the form of AB 304, a bill that Governor Brown swiftly signed into law on July 14 and is effective immediately. The amendments provide some clarification with regard to compliance over payments, provisions for time off and so on. The clarifications are important not only for the employer - in order to properly comply - but also the employee, for whom a basic understanding of the new provisions is important in order to identify whether or not an employer is properly conforming to the new guidelines.
One of the clarifications with regard to California and labor law stemming from the quick passage of AB 304 has to do with record keeping: while an employer can know the reason(s) and purposes for which an employee uses paid sick time, there is no requirement in record-keeping protocols for maintaining documentation to that end.
Were an employer to maintain documentation with regard to the purposes for paid sick leave, or were an employee to find himself getting stiffed on sick pay and sick leave, he needs to be able to identify incidents of noncompliance in order to initiate and pursue a California labor lawsuit, as required.
AB 304 clarifies protocols for calculating paid sick leave, and the employer now has two options for doing so: 1) a calculation formula akin to the regular rate of pay for overtime calculation for the workweek in which paid sick time is used, and 2) the original calculation protocol dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
The July 14th amendment also provides for alternate accrual methods beyond the formula of one hour for each 30 hours worked, provided the accrual is on a regular basis and the employee will have 24 hours of paid sick leave available by the 120th calendar day of employment.
There is also clarification, for the purposes of California labor employment law, with regard to the right an employer has in limiting an employee’s use of paid sick days to 24 hours or 3 days either: (1) in each year of employment (by anniversary year, for example); or (2) in each calendar year; or (3) in any specified 12-month period.
Among other provisions in AB 304 is clarification over the requirement that an employee, to be eligible for paid sick leave, must be in a position to have worked for the same employer for 30 days, as opposed to simply working for any employer in the state of California.
There is a somewhat complicated grandfather clause for those employees who were provided paid sick leave or paid time off prior to the implementation of AB 1522 at the first of the year, and for whom a different method for accruing sick time may have been used. This clause allows for a more gradual accrual, provided the employee accrues eight hours of paid sick leave in the first three months of employment and was eligible to earn 24 hours of sick leave or paid time off within nine months of employment.
At the end of the day, California state labor laws are intended to level the playing field and provide fairness for the employee. A mutual understanding of California employee labor law is an important prerequisite for the employer to properly implement new laws, and for the employee to understand when those statutes are being accidentally or purposefully circumvented…
Uber Responds to California Labor Lawsuit with Motion
Uber’s drivers filed the class-action lawsuit (Lyft faces a similar one) alleging that the more than 160,000 Uber drivers in California should be classified as employees and not as independent contractors. Uber - the on-demand car service company - argues it is simply a software company; riders download the Uber app and use it to hire a car service. Drivers respond to the rider’s request and are paid for transporting riders.
Among the allegations in the lawsuit are that drivers are eligible for statutory protections, including forwarding the entire amount of any gratuity given to drivers.
Previously in the lawsuit, Judge Edward Chen said he was not convinced that Uber is simply a software platform, noting that Uber would not make money without drivers and sets the drivers’ pay rate. Judge Chen wrote when denying Uber’s motion for summary judgment that “the Court first concludes that Plaintiffs are Uber’s presumptive employees because they ‘perform services’ for the benefit of Uber.” The judge ruled that a jury should resolve the complaints against Uber.
The California Labor Commissioner’s Office has agreed with Chen’s statements, recently ruling Uber drivers are employees. The commission awarded Barbara Ann Berwick $4,152.20 in employee expenses, including mileage, toll charges and interest, finding Uber was involved in every aspect of Berwick’s driving operation. Uber has reportedly appealed the decision.
Under Uber’s driver agreement, drivers are not reimbursed for expenses, including gas and car maintenance.
Now, Uber has filed a motion opposing class-action status, arguing that the company’s 160,000 drivers have very little in common, other than that they all downloaded and used the Uber app at some point over the past six years. According to Time (7/9/15), Uber argues that the manner in which the Uber app is used varies from driver to driver.
Furthermore, the company argues that if drivers were considered employees, they would lose their personal flexibility, including the ability to drive for more than one company. Finally, Uber says drivers are able to act or dress how they want, work when they want and as much as they want, and decide whether or not to accept requests.
The Uber lawsuit is Douglas O’Connor et al. v. Uber Technologies et al., No. C-13-3826 in the US District Court for the Northern District of California.
Injury Risk Not Lost on Knott’s Plaintiff Who Now Suffers from Vision Problems
It was last year that Kristine Laborte, then age six, was a participant on the Timber Mountain Log Ride when she hit her head against the seatback in front, breaking a bone above her right eye. She was accompanied on the ride by her father, James, who held his daughter on his lap. The incident happened when the ride stopped suddenly at the bottom of the flume, causing both James and Kristine to slide forward. The injury, according to the family’s Amusement Park lawsuit, happened on July 27, 2014.
The plaintiffs assert the injury to their daughter could have been avoided if there were safety measures built into the ride, such as more adequate feet or leg braces installed in the interior of the log-shaped cars to prevent occupants from unexpectedly sliding forward. The Labortes also claim that better monitoring of the water levels at the bottom of the drop could have also prevented the injury to the little girl.
There appears to be some merit to the plaintiff’s claims, given prior compliance issues inherent with Knott’s. According to the Orange County Register (5/13/15), a similar incident in February of 2001 resulted in an order by the California Division of Occupational Safety and Health (Cal-OSHA) to add braces to the logs/cars. Three months later, in May of that year, Knott’s reportedly advised Cal-OSHA that the additions had been duly made, and Knott’s had complied with the order.
Eleven years later, in 2012, Cal-OSHA was back to Knott’s again, this time with an order to enhance monitoring of the ride’s water levels. A subsequent report from Cal-OSHA noted that between May 2013 and January of this year, the water levels on the ride were not properly monitored.
It was during this period that the Laborte Amusement Park Accident occurred.
The summer is high time for amusement and theme parks. With children off school and families on summer holiday, amusement parks are a favorite pastime. Sadly, summer is also the time of year when spikes in Theme Park Accidents and even Amusement Park Deaths occur. Defendants in various lawsuits have been found, variously, to have dropped the ball when it comes to proper and ongoing maintenance, and/or supervision of the facilities.
The Amusement Park Lawsuit notes no fewer than nine previous incidents at the park, from 2000 through 2014 from which children sustained injuries, according to the Los Angeles Times (5/11/15). Had there been sufficient water levels at the bottom of the ride to cushion the stop of the log-shaped car, the impact might have been entirely mitigated or less severe. As it was, the lawsuit claims, there was insufficient water to cushion the car’s arrival at the bottom, resulting in an abrupt stop that threw the little girl’s head into the back of the seat in front, breaking the orbital bone above her eye. She lost consciousness and has suffered from vision problems since.
The Laborte lawsuit was filed in May in Orange County Superior Court. The plaintiffs are asking for punitive damages together with compensation for medical bills.
California Cheerleaders Cheering Minimum Wage Legislation
According to The Associated Press (7/1/15), although the legislation is welcome, cheerleaders and their supporters say labor law already guarantees them minimum wage and overtime. They often do not receive that pay because they’re misclassified as independent contractors.
Workers are considered independent contractors if they have a great deal of authority and discretion in how they perform their work and carry out their duties. For example, if they set their own schedule, choose what to wear while working and control the work they do, they are more likely considered independent contractors. In the case of cheerleaders, their work is tightly controlled - from the clothing they wear, to how they do their hair and makeup, to the dance routines they perform, and the off-site events they attend.
“NFL teams and their billionaire owners have used professional cheerleaders as part of the game day experience for decades,” Gonzalez said in a statement on the legislation. “They have capitalized on their talents without providing even the most basic workplace protections like a minimum wage. If the guy selling you the beer deserves a minimum wage, so does the woman entertaining you on the field. All work is dignified and cheerleaders deserve the respect of these basic workplace protections.”
In addition to not being paid minimum wage, cheerleaders were found to not be paid overtime and spent their own personal funds - in some cases a significant amount - to pay for items required by the team, such as uniforms and hairstyling.
Minimum wage in California is currently $9 an hour. According to lawsuits, some cheerleaders made as little as $5 an hour and were not paid for all training sessions. The Raiders cheerleaders reportedly made $1,250 per season before the lawsuit. Meanwhile, Salon (1/30/15) notes the lowest paid player on the Oakland Raiders makes approximately $400,000 a year.
A lawsuit filed against the Oakland Raiders was settled in 2014 for more than $1 million. Lawsuits have been filed against the Jets, Bengals, Buccaneers and Bills.
One of the cheerleading lawsuits was Lacy T. et al v. The Oakland Raiders, case number RG14710825.
California Labor Law Ruling for Uber Has Implications for “Sharing Economy”
This ruling means that Uber has to pay its California-based drivers in accordance with the wage and hour California labor code, reimburse them for any expenses related to work (such as fuel and toll charges) and pay California overtime.
The Commissioner’s Office awarded Uber driver Barbara Ann Berwick $4,152.20 in employee expenses. Uber was ordered to reimburse Berwick for 6,468 miles she drove as an Uber driver at $0.56 per mile; $256.00 in toll charges and $274.12 in interest. Berwick also asked to be paid wages for the 470.7 hours worked driving for Uber, but she was not awarded wages because she couldn’t provide the payment documentation requested for by the court.
Uber argued that its company is nothing more than a “technological platform” for private vehicle drivers to facilitate private transactions, that drivers are independent contractors, that Uber has no control over the hours drivers work, and that the company does not have to reimburse drivers for any “expenses related to operating their personal vehicles.” The California Labor Commissioner’s Office doesn't see it that way and found that Berwick is in fact an employee of Uber. “Without passengers such as Plaintiff [Berwick], Defendant’s [Uber’s] business would not exist,” the Commissioner’s Office said.
Uber filed an appeal on June 16 in a San Francisco state court and told the Associated Press that the ruling is nonbinding, and only applies to one driver. Further, Uber claimed the ruling in favor of Berwick actually contradicts a previous ruling from the same commission, according to NPR.
According to attorney Shannon Liss-Riordan, who is working on a class-action suit of drivers against the $50 billion company, drivers also need to be reimbursed for insurance, workers compensation, unemployment benefits and more. The lawsuit will also address tipping: Uber tells passengers that the driver’s gratuity is included and not to tip the drivers - but drivers say they don’t get a gratuity from the company. (Uber can certainly afford to pay and tip its drivers: in 2013 alone, Uber brought in $210 million in revenue on over $1 billion in rides.)
Shannon Liss-Riordan won a major victory in March when Judge Chen, of the federal district court in San Francisco, denied Uber’s motion for summary judgment; the case will go to trial before a jury. For more information, see the court’s decision (Case3:13-cv-03826-EMC). Liss-Riordan says the next step will be for the court to decide class certification, which would define the scope of the case and which drivers can be covered under it. A hearing on class certification is slated for August 6, 2015.
Although this ruling currently pertains to Berwick, a former chairperson of the National Labor Relations Board, Wilma Liebman, told the New York Times (June 17, 2015) that she “wouldn’t be surprised if there’s a flood of similar kinds of claims.” So far, similar claims have been filed in Georgia, Pennsylvania, Texas, but tribunals there categorized the drivers as independent contractors. And an Uber driver from Florida recently succeeded in his claim for employee status.
Wipro, Uber Face Wage and Hour Lawsuits
According to American Bazaar (6/11/15), Wipro now faces a class-action lawsuit alleging the company misclassified employees as exempt from overtime pay, failed to pay overtime and violated California’s Unfair Competition Act. Plaintiff Suri Payala filed the lawsuit alleging he was hired as an architect (essentially a computer technician) but was not paid for overtime work and was not paid properly for travel time when his worksite was outsourced.
Payala claims approximately 200 other employees are in the same position as he, and none were told about California overtime laws. The lawsuit alleges Payala made less than the monthly threshold for exemption from overtime pay. In California, that threshold is $7,000 per month or $84,130 annually.
Lawyers for Wipro said in court filings that the plaintiff is not entitled to relief.
Meanwhile, as a California lawsuit alleging Uber drivers are misclassified as independent contractors continues, the California Labor Commissioner’s Office has ruled that at least one Uber driver is an employee and not an independent contractor. According to Business Insider (6/17/15), the Commission’s Office ruling is not binding, but could set a precedent.
Both Uber and Lyft face lawsuits alleging their drivers are employees and not independent contractors. In both cases, judges have ruled the cases would be tried by juries, and noted they were not convinced the drivers were independent contractors. Now the labor commission has also found that at least one driver is an employee.
Uber released a statement to Business Insider stating that the California Labor Commissioner’s Office ruling contradicts an earlier ruling by the same Commissioner’s Office, which found drivers were independent contractors. The company plans to appeal the ruling. Among factors that determine whether a person is an employee or contractor are the amount of control and discretion the person has over his or her duties, and how essential the worker is to the success of the business.
The Uber lawsuit is O’Connor et al v. Uber Technologies Inc, et al, No. C-13-3826. The Lyft lawsuit is Cotter v. Lyft Inc., et al, No. 13-4065, US District Court, Northern District of California (San Francisco).
Los Angeles Hotels Crying Foul Over Raise in Minimum Wage
Normally, it’s the employees litigating against an employer for nonpayment of wages. In this case, however, hotel workers in Los Angeles are quite happy about the prospect of wages increasing. It was in late September of last year that Los Angeles City Council passed the hotel wage ordinance, giving initial approval to the idea of a minimum wage for the city’s hotel workers exceeding $15 per hour in order to foster a higher living wage for workers in the city’s hotel industry. It’s not that the vote was close - in spite of the hotel industry’s objections over fears of increased costs and a slowdown of hotel development in the city because of the proposed wage increase, the ordinance passed 12-3. The City followed up last month by granting initial approval to a $15-per-hour minimum wage by way of a gradual implementation between now and 2020 for most businesses - not just hotels.
Again, this is just the City of Los Angeles talking, as opposed to the entire state through California labor code. Be that as it may, the hotel industry has cried foul, launching a California labor lawsuit to fight the new wage ordinance. Filed in December, the lawsuit suffered a setback for the litigants last month when US District Judge Andre Birotte Jr. issued an opinion on May 13 that challenged the strength of the defendant’s case for preemption of the City ordinance by the NLRA.
The judge, in his order, questioned if the lawsuit was even motivated by an alleged conflict between municipal law and the NLRA. “A review of plaintiffs’ arguments and evidence...make clear that plaintiffs’ biggest concern with the wage ordinance is that it is bad economic policy,” he wrote. “However, it is not the role of the court to interject into matters of legislative economic policy under the guise of NLRA preemption.”
The plaintiffs, identified as The American Hotel & Lodging Association (AHLA) and the Asian American Hotel Owners Association will appeal the order. Katherine Lugar, the CEO of AHLA, said in a statement issued June 11 that the organization was pursuing the appeal “to protect our member hotels from suffering irreparable harm” as a result of the ordinance.
“We continue to believe the evidence will show that the act improperly disrupts the balance of economic power between labor and management,” Lugar continued. “This imbalance creates unprecedented bargaining leverage for labor, violating the National Labor Relations Act.”
Los Angeles City Council gave final approval to the ordinance on June 10. The plaintiffs announced their appeal a day later. The clock is ticking, as the California labor employment law applicable to only hotels in the City of Los Angeles goes into effect on July 1.
Drivers File California Labor Lawsuit against Lyft
The plaintiffs in the most recent claim allege in court documents that in an effort to increase the number of drivers at its disposal, Lyft offered $1,000 driver referral programs. In one program, a current driver could refer a new driver and both would receive $1,000 if the new driver had applied to be a driver on or after February 25 and completed their first ride by March 5. In the second promotion, new drivers could sign up without being referred, enter a code word and receive $1,000.
The referral programs were reportedly so well received they ended early in Los Angeles. When new drivers apply for a job with Lyft, they must take a “welcome ride” and then pass a background check in that order. The plaintiffs allege that despite drivers filling out their application and completing their welcome ride, Lyft’s background checks were not processed quickly enough to allow new drivers to give their first ride by March 5. Some drivers reportedly waited one to two weeks for a background check.
“As we’re processing the applications, it’s important that we continue to fulfill our safety obligations,” a March 4th e-mail from Lyft reportedly states. “Some of these steps, including DMV and background checks, are outside our control and can vary in length for different applicants. It is possible that you won’t qualify for the promotion if all steps aren’t completed by the March 5th deadline, along with the ride requirement.”
In a follow-up e-mail, Lyft extended the deadline for the first ride to March 12, but only for those drivers who had passed their background checks by March 5. Those who had applied before the program was closed but did not have their background check passed missed out.
“Lyft’s actions caused outrage throughout the Lyft community, with many referring drivers and new drivers believing the entire promotion had been a scam to attract new drivers without having to pay them $1,000,” court documents state.
Plaintiffs in the lawsuit allege breach of contract and fraud. They seek class-action status. The lawsuit is
Lyft, an on-demand ride-sharing company, already faces a California labor lawsuit alleging the company misclassifies drivers as independent contractors instead of as employees.
Respecting Caitlin Jenner and Her Community Under the Law
For some time now, California labor law has protected transgendered individuals from discrimination and harassment. However, a decision by the Superior Court of California, County of Sacramento last spring held that denying transgender employees the right to use gender-identity appropriate facilities remains a violation of the state’s anti-discrimination laws, and other statutes entrenched in the California Labor Code.
That decision, released in March of 2014, held that transgendered employees in the state of California have the right to use gender-identity appropriate change room and washroom facilities in the state of California. Various other states have enacted similar updates to their laws.
Now, the Feds have finally entered the pool with an update to federal codes that mirror California and labor law, as well as similar laws in other jurisdictions related to transgendered individuals.
To that end, the Occupational Safety and Health Administration (OSHA) on June 1 published A Guide to Restroom Access for Transgender Workers.
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, in a released statement. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”
The guide itself is detailed, but in sum, the rule is stated simply thus: if a female has transgendered, either emotionally or physically (or both) to male and therefore identifies as male, then that individual has the right and freedom to use the men’s washroom.
The same holds true for Bruce Jenner, who now identifies as Caitlin. It wasn’t that long ago that Jenner was being interviewed on national television about his story and his ongoing transition to female, the gender to which Jenner now identifies. This week, the release of the Caitlin Jenner photo shoot for the cover of Vanity Fair is a stark representation of what Jenner was revealing just a few weeks ago.
Therefore, applying the Bruce Jenner/Caitlin Jenner example to the rule of law, Bruce Jenner identifies as female now (as Caitlin Jenner) and thus, has the right to use the women’s washroom.
The OSHA guide, and the corresponding law, is founded upon the core belief that all employees in the workplace should be permitted, without retaliation, use of the facility that best matches his or her gender identification. At the end of the day, however, the OSHA guide notes that the employee should determine “the most appropriate and safest option for him - or herself.”
OSHA also identifies best polices that provide additional options that transgendered employees may choose, but are at the same time not a requirement. Such options, as available, could include: “Single-occupancy gender-neutral (unisex) facilities, and: Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities,” states the guideline. “In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.”
The guidelines also speak to the existence of local and state laws and statutes, such as California labor employment law, about which all employees should be conversant.
To summarize, transgendering has long passed the signpost of sensationalism. Rather, gender identification in any form has progressed from tolerance to widespread acceptance; and yet another indication of this is the release, this summer, of Becoming Us, an unscripted “docuseries” on ABC Family, documenting the life of 17-year-old Ben Lehwald of Evanston, Illinois. In the series, which is produced by Ryan Seacrest Productions, Ben’s father Charlie transitions to Carly. The narrative is told from Ben’s perspective as he watches his dad go through his divorce from Ben’s mom Suzy, before undergoing gender reassignment surgery.
In the grand scheme of things, washroom assignment (or reassignment) should be the least of a transgendered individual’s worries. Nonetheless, it is an issue that many states have been grappling with for some time - including California and labor law observed by the state. Now, the Department of Labor through the OSHA guideline will ensure that the rights of everyone are quite properly observed and respected behind the washroom stall.
Caitlin Jenner will use the women’s washroom. It’s only appropriate. And it’s also the law.
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