California Labor Law News
Silicon Valley Sexual Discrimination
Since Ms. Pao filed a sex-discrimination lawsuit against Kleiner Perkins in 2012, she has received much support in the tech community, telling The Wall Street Journal (April 6, 2015) that “you can’t just hide” from the problem of workplace sexism and that Silicon Valley must continue to work on the issues brought up in her loss.
On March 27, jurors in Superior Court in San Francisco found that the venture capital company did not discriminate against Ms. Pao, who was asking for $16 million in compensatory damages plus punitive damages. Despite her losing the case, legal experts predict more sexual discrimination lawsuits.
Ms. Pao, currently the interim chief at the social media news site Reddit, told the Los Angeles Times that many women she didn’t know shared their own experiences with sexual discrimination, many of whom had never shared their stories with anyone else.
When it comes to gender inequality, the TV series Mad Men could be scripted in present day Silicon Valley. (Last night’s episode saw female characters Joan and Peggy endure sexual harassment at work by men behaving very badly.)
Facebook lawsuit
A former Facebook manager accused the company of discrimination, harassment and retaliation because she is a woman and of Taiwanese descent. Lawless & Lawless, the same law firm that represented Ms. Pao, brought the charges against Facebook after Chia Hong was terminated. The Los Angeles Times said the lawsuit claims Facebook officials asked Hong “why she did not stay home and take care of her children,” and regularly ignored or belittled her professional opinions at meetings where she was one of few women. According to Hong, she was replaced by a man who was less qualified and less experienced.
Twitter lawsuit
In the discrimination lawsuit against Twitter, former engineer Tina Huang makes the same claims that Ms. Pao made about Kleiner, i.e., the promotion process is unclear and is biased in favor of men. Both Facebook and Twitter said they are committed to a supportive and diverse workplace.
Statistics show otherwise. In a fall 2013 report, the US Census found that “women’s representation in computer occupations has declined since the 1990s,” with women filling just 22 percent of software developer jobs. Venture capital numbers are even lower: according to a study from Babson College, the share of women partners in venture capital firms declined to 6 percent in 2014, from 10 percent in 1999.
Lessons learned
Deborah Rhode, a law professor at Stanford University, said the Pao case “sends a powerful signal to Silicon Valley in general and the venture capital industry in particular...Defendants who win in court sometimes lose in the world outside it.”
And the International New York Times (April 1, 2015) pointed out that, after Kleiner Perkins emails were read during testimony, be careful what you write. Apparently sexist e-mails abruptly stopped circulating with the much-publicized lawsuit and another venture capital firm said they will have a human resources employee with explicit policies. Lastly, the New York Times reported that a third venture capitalist was “rethinking whether he had turned away female entrepreneurs too quickly in the past.”
Two Very Different California Labor Code Lawsuits
The case is Wilemon v. Intercontinental Exchange Inc., Case No. GCG-15-544667, in the Superior Court for the State of California, County of San Francisco.
According to court records, Wilemon served as a managing director of NYSE Euronext from 2009 through 2014, and was often sought out by media such as Fox News and Al Jazeera to comment on behalf of the NYSE. According to court records, in February of 2014 Wilemon was contacted by a producer associated with the satirical program, The Daily Show, and was asked if he would be interested in presenting his views on the Affordable Care Act (ACA).
Wilemon, according to the California labor lawsuit, agreed to participate - although he specified he would not be representing the views of the NYSE or, for that matter, Fox News. He did agree, however, to be identified as a “Fox Business Guest Commentator,” and was aware of The Daily Show’s capacity to edit several hours of footage into what became a seven-minute satirical segment.
Even though Wilemon did not represent the views of his employer, NYSE’s parent company Intercontinental Exchange Inc. was not happy with the outcome and terminated Wilemon’s employment in violation of the California labor code, or so Wilemon alleges in his California labor lawsuit.
“Defendants terminated plaintiff’s employment due to defendants’ own antipathy for the political message of The Daily Show, which is widely regarded as an influential progressive political platform and defendants’ assumption that their financial industry clients shared defendants’ said antipathy,” the suit says. Wilemon seeks damages not less than $150,000.
That’s how the cookie crumbles
Meanwhile, in an unrelated California labor employment law case, the Office of the California Labor Commissioner has cited a Vista-based wholesaler for numerous violations to California and labor law, including allegations of wage theft.
According to a news release (3/20/15) from Labor Commissioner Julie A. Su, Cookies con Amore denied various employees overtime pay, rest periods and meal breaks. Su also alleged that Cookies con Amore forced some of the 73 workers affected to sign a statement agreeing to the practices that amounted to wage theft violations.
It is alleged that between October 2013 and December of last year employees were made to work 10 hours a day or longer, but paid straight time without any provision for overtime pay, in an alleged violation of California labor employment law. Within that time, it is alleged that employees were given only a single, 30-minute break.
It is alleged that some workers were mandated to sign a written consent, agreeing to working conditions and circumstances that the Office of the Labor Commissioner held as substandard. If they did not agree to sign the waiver, it is alleged that employees were told to seek employment elsewhere.
“California workers deserve to be paid fairly and fully for their labor, and employers who deny them their wages and benefits will be held accountable,” said Christine Baker, Director of the Department of Industrial Relations (DIR). The Labor Commissioner’s Office, also known as the Division of Labor Standards Enforcement (DLSE), is a division within DIR.
“We appreciate the brave workers who cooperated with our investigation and the California Rural Legal Assistance, a critical partner to us in helping workers come forward and report such violations,” Su added.
Cookies con Amore supplies gourmet cookies to Whole Foods, gourmet grocery stores and food outlets.
With regard to the foregoing violations to California state labor laws, Cookies con Amore was assessed $120,665 including $51,444 in overtime wages, and $69,221 in rest and meal time periods, which will be paid to the affected workers, and an additional $63,800 in civil penalties.
Uber Faces More California Labor Claims
According to court documents, the lawsuit was filed on March 12, 2015 by Sasha Antman on behalf of himself and other similarly situated Uber drivers. The lawsuit alleges that Uber failed to properly secure and protect drivers’ personal information, including names, driver’s license numbers and other personal information, and further failed to warn drivers that their personal information had been stolen.
Antman alleges that starting in May 2014, someone accessed and downloaded Uber files containing drivers’ information. Uber reportedly did not warn drivers about the breach until February 27, 2015, despite allegedly knowing about the data breach “as early as September 17, 2014.” When it warned about the data breach, Uber noted that approximately 50,000 drivers across the US could have been affected.
The lawsuit alleges that the hacker used a security key that was publicly available on the Internet to access and steal the information. “In other words, Defendant not only permitted all of the compromised Private Information to be accessible via a single password, but allowed that password to be publicly accessible via the internet,” the lawsuit states. Furthermore, the plaintiff alleges that the private information was available unencrypted and easily accessible with a password.
Antman argues that Uber failed to take adequate measures to protect its data systems and failed to properly handle and store the password that protected drivers’ private information, resulting in it being compromised. The plaintiff also alleges that on June 2, 2014, an unauthorized person used his private information to apply for a credit card with Capital One, which has had an effect on his credit report.
“The ramifications of the Defendant’s failure to keep Class members’ data secure are severe,” the lawsuit argues. It also accuses Uber of having a lackadaisical, cavalier, reckless or negligent approach to securing driver information.
In addition to the lawsuit regarding protection of driver information, Uber also faces a lawsuit alleging it misclassified drivers as independent contractors when they were in fact employees. A judge has so far refused Uber’s motion to dismiss the lawsuit.
The Uber data breach lawsuit is Antman v. Uber Technologies Inc., case number 15-1175, in the US District Court for the Northern District of California.
Health Club to Settle California Employee Lawsuit
According to reports, Equinox Holdings, which owns locations around California, has agreed to pay more than $4 million to settle lawsuits filed by employees who allege they were not properly paid or provided with meal breaks. Class members in the lawsuit, including massage therapists, nail technicians and aestheticians, will share in around $2.6 million, with the rest going to attorney’s fees, a payment to the California Labor and Workforce Development Agency, and payments to the named plaintiffs.
The lawsuit, case number BC481860, was filed in 2012 and will see employees compensated for shifts worked from March 2008 to October 2014.
According to court documents, the plaintiffs alleged that they were not paid properly for overtime because either non-commissionable time was not counted in daily hours worked or because the required minimum wage from non-commissionable hours was not included in the calculation.
Previously, the company agreed to pay $2.9 million to settle a lawsuit alleging Equinox did not properly pay its employees overtime and denied workers proper meal breaks. That lawsuit, Shirlene Leigh and Joanna Sheen v. Equinox Holdings Inc., case number BC463577, was filed in 2011 and alleged its membership sales advisers had been misclassified as exempt. The company also said it had reclassified the employees as non-exempt.
In that lawsuit, the membership sales advisers said they spent most of their time selling memberships and services rather than involved in exempt tasks.
According to Club Industry (2/23/15), Equinox still faces a lawsuit filed by Gavin Sykes, who alleges he was not properly paid for overtime, did not receive proper meal and rest breaks, and was subject to racial and sexual orientation discrimination. In his lawsuit, Sykes reportedly alleges that he was made operations administrator and was required to report labor violations but was told to alter time cards to make it appear that labor laws were being followed. Sykes alleges that when he refused to do so he was demoted and subjected to discrimination.
Sykes’ lawsuit also alleges wrongful termination.
California Labor Lawsuit Seeks to Distinguish Employees from Contractors
The lawsuit involves workers who drive for Uber Technologies. The drivers perform a taxi-like service in which they pick up and drop off passengers who are sent to them via the Uber application. Plaintiffs allege Uber would not be able to perform business, nor would it make any money, without the drivers. Furthermore, they claim they must follow Uber’s requirements and can be fired from the company if they fail to do so.
Uber, however, alleges that the drivers are actually Uber customers who use the Uber application to have passengers sent to them. As such, they are not employees but clients and are therefore not subject to the same rights and protections as employees. In other words, Uber says it simply finds prospective passengers for the drivers, who are then free to accept the fare or not.
US District Judge Edward Chen seems to agree with the drivers, stating that he does not think Uber is simply a software platform that allows drivers to find potential fares. At issue is how much control Uber has over its drivers’ ability to earn a living, and how much autonomy the drivers have in carrying out their duties. According to Bloomberg (1/30/15), the judge noted that Uber determines how much money drivers are paid and has the ability to terminate them.
“[To grant Uber summary judgment], I would have to find that, viewing the facts in plaintiffs’ favor, drawing all reasonable subsidiary inferences in favor of the plaintiff, that no reasonable jury could conclude that the drivers are employees,” the judge noted (as seen in a transcript). “That’s a pretty tough standard to meet.” He went on to state that he believes the drivers are serving Uber and he noted that Uber exercises quality control.
“If [Uber is] only providing software, why would they be concerned with who’s buying it, whether they’re qualified, how they’re doing on the job?” the judge stated. “And why would they have control over the pricing, and whether to implement surge pricing or not, et cetera, et cetera… It sounds like a little more than just selling something on the app store.”
No ruling has been issued so far.
The lawsuit is O’Connor et al. v. Uber Technologies Inc. et al, case number 3:13-cv-03826 in the US District Court for the Northern District of California.
All Eyes on Pao v. Kleiner et al in California Labor Lawsuit
A California labor lawsuit that has been grabbing headlines of late surrounds a former employee of a top venture capital firm. According to a summary published in The New York Times Magazine (2/25/15), Ellen Pao alleges that her former employer, Kleiner Perkins Caufield & Byers, allowed for discrimination following the end of a relationship with a co-worker.
According to the California labor code lawsuit, Pao alleges that she was pressured into having an affair with a married colleague at the firm. After breaking off the relationship, the plaintiff claims discrimination and retaliation that affected her career. Specifically, Pao suggests that colleagues excluded her from important meetings and e-mail discussions on issues important to her work performance.
The bigger issue that has onlookers and industry watchers buzzing is the suggestion by Pao that the company maintains and allows for an atmosphere of male entitlement, to the detriment of female partners.
The defendant shot back that Pao, in its view, lacked “the ability to lead others, build consensus and be a team player,” attributes the defendant claims are needed for success in the venture capital sector. The defendant also claimed that Pao received bad performance reviews.
Pao alleges her performance was adversely affected by the atmosphere of male entitlement and discrimination, which remains an affront to California and labor law.
Anonymous respondents speaking with The New York Times Magazine suggested that the workplace atmosphere is 100 percent different for men than women, with women complaining that “you can’t take for granted you’ll be taken seriously,” said one. Studies suggest that women make up just 19 percent of angel investors and 6 percent of partners at venture capital firms. This is down from 10 percent in 1999.
California labor employment law carries various tenets, statutes and regulations designed to shield workers of either gender from unwanted or unfair discrimination.
Pao is currently the interim chief executive of Reddit.
The case is Ellen Pao v. Kleiner Perkins Caufield & Byers LLC, Case No. A136090, In the Court of Appeals of California, First District, Division Five.
California Labor Law Protection for Discrimination and Retaliation?
Many people are afraid to file a complaint. Perhaps they will be singled out for something at a later date, even if it isn’t their fault. Perhaps they will be passed over for a promotion. And maybe they will get so worn down and so stressed out that the only option is to quit.
Juan has been working just over a year in shipping and receiving for a large warehouse. He also trains employees. Juan was hired through a temp agency a few months before the new General Manager was hired.
“My first year anniversary came up and I did the mandatory drug test along with other applicants - the same tests that the new GM had to do,” says Juan. “The difference between us is that he passed the background checks and tests and I failed, according to our branch manager. That was really weird because just before I started with this company I applied as a County Sheriff and passed everything except for a physical test. So why can I pass the County test but not pass the test for this company?”
Juan believes it is because he is Hispanic. The new GM is African American and so is the boss. Juan says that Hispanic employees are constantly harassed and belittled.
“My wife is scheduled to have a caesarean section next month so I applied for one-day leave,” Juan says. “I asked our department head and he said okay, just make sure the branch manager and warehouse manager know. When I told Harvey, the warehouse manager, he screamed at me because I ‘went over his head.’ We have an open-door policy so I have no idea why he got so upset, except to single me out.
“The next day I inadvertently got an e-mail from the branch manager that was supposed to be sent to Harvey. It said ‘Juan needs to clear the c-section with the temp agency and we need to approve or replace the employee since he is a temp.’
“But the agency already knows what is going on and they approved my day off. Now I am afraid they are going to try to find some excuse to fire me. This is so stressful and I have a baby on the way.”
Juan saved the e-mail. And he told his contact at the temp agency that he was being discriminated against. She was shocked and disgusted with the e-mail and asked Juan why she wasn’t told sooner. “I told her that I am afraid of retaliation, just like the other Hispanic employees here,” Juan explains. “I told her that only one person out of three sent here from the temp agency last month was hired - he is Harvey’s friend.
“This company is run like a frat house: If you don’t belong to Harvey’s church or know him personally, he will treat you like you are nothing. From what I heard this has happened to many employees over the years but they too are afraid of retaliation. I was told that some people did complain but he made things difficult for them, such as assign lousy hours or a shift he knows will be difficult to juggle with their personal life, just to show that he is the boss.”
Juan is hopeful that an attorney experienced with the California labor law can advise him whether or not to proceed with a California labor lawsuit. He is too afraid to call the Retaliation Complaint Unit.
Wal-Mart Hit with California Labor Lawsuit
Named plaintiff Afrous Nikmanesh worked as a pharmacist with Wal-Mart from November 2003 through September 2014. In addition to the allegation of missed rest periods, Nikmanesh claims that the retailer did not pay him and other pharmacists in the class for time studying for and completing APhA Immunization Training Programs. Plaintiffs assert that such training “was directly related” to the responsibilities of a pharmacist.
The California labor code lawsuit was originally filed in Orange County Superior Court in December of last year. The case was removed to federal court February 6.
“There is a well-defined community of interest in the questions of law and fact affecting the classes plaintiff seeks to represent,” the lawsuit said. “The class members’ claims against defendant involve questions of general or common interest, in that the claims are based on the defendant’s implementation and utilization of a policy under which [employees] ... did not receive any overtime compensation, minimum wage or any compensation whatsoever during the years in question.”
The California labor lawsuit seeks to represent current and former Wal-Mart employees who worked as pharmacists at Wal-Mart establishments across the US within the previous four years, according to the lawsuit.
California and labor law observes various state laws in concert with federal statutes under the Fair Labor Standards Act (FLSA) that mandate rest breaks, meal periods and overtime for non-management employees. Employers have, in the past and currently, attempted to circumvent such regulations by improperly classifying hourly employees as managers, even though they perform few, if any management tasks.
Wal-Mart is easily one of the largest retailers in the country, with scores of locations across the greater US as well as Canada, in addition to the state of California.
The California labor lawsuit case is Nikmanesh v. Wal-Mart Stores, Inc. et al., Case No. 8:15-cv-00202, in the US District Court for the Central District of California.
Uber and Lyft Face California Labor Lawsuits
Both Uber and Lyft are on-demand car service companies, operating similarly to a taxi company. Drivers are considered independent contractors. Uber and Lyft have both argued that they are actually software companies, with riders using the respective apps to request rides and drivers chosen on the basis of being the first driver in the area to respond to a rider’s request.
But Judge Edward Chen said he did not find it convincing that Uber is simply a software platform, while US District Judge Vince Chhabria indicated that he might also consider Lyft’s drivers employees. Among the issues are how much control Uber and Lyft have over their drivers and their drivers’ work schedules. Uber, for example, sets the rate of pay for drivers and would not make money without the drivers. The drivers are, in fact, integral to Uber and Lyft earning profit.
Neither Uber nor Lyft own their own vehicles. Uber also reportedly uses the slogan “your private driver.” Plaintiffs in the Lyft lawsuit argued they were warned they could be terminated if they did not accept enough jobs.
Lawsuits against both Uber and Lyft initially sought to represent drivers across the US, but the lawsuits were narrowed to California drivers only. According to the Los Angeles Times, Uber has more than 160,000 drivers in 161, as of December 2014.
The lawsuits allege employees were misclassified as independent contractors when they were actually employees and should have been granted benefits owed to employees. Plaintiffs in the Uber lawsuit allege unjust enrichment and violations of the California Unfair Competition Law. According to court documents in the Uber lawsuit, Uber allegedly advertises that the cost of the service includes gratuities, but does not forward the full amount of the gratuity to drivers. Similar allegations were made in the Lyft lawsuit, with plaintiffs arguing that Lyft takes 20 percent of drivers’ tips for “administrative fees.”
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).
Cheerleaders to Gain Under Proposed California Labor Law Bill
“If you look at California labor law, it is clear given what these girls are signing as far as contracts they’re being treated as employees if not compensated as employees,” said California Assemblywoman Lorena Gonzalez, D-San Diego, who briefly considered trying out to be a Golden State Warriors cheerleader in college before concluding that the pay wouldn’t cover her expenses.
“Every person you come in contact with - the guy who parks your car, the ticket taker, the guy who sells you the beer, the guy who cleans up after you, the coaches, the trainers, the players - they’re all getting paid for their work, and the only people not getting paid for what they’re doing is the group of women,” Gonzalez said, in comments published in the Sacramento Bee (1/30/15).
At first glance, cheerleading can be viewed as somewhat of a glamorous job. The fans love you, and you can get your mug on TV the odd time. Those lucky enough to earn some face time during the broadcast of Super Bowl XLIX would have been seen by millions. But is the pay worth it?
Gonzalez and others of the same mind don’t think so - and there have been numerous lawsuits attempting to make that very point. Last year, one of several lawsuits filed under California and labor law against the Oakland Raiders by cheerleaders who felt they were underpaid, proved successful. To that end, a Superior Court Judge in Alameda approved a settlement valued at $1.25 million.
And there have been others across the country. Cheerleaders who led the charge at one time for the Buffalo Bills claimed they were underpaid by the team and took the Buffalo Bills franchise to court. Another cheerleader in Ohio sued the Cincinnati Bengals claiming that what she received in compensation from the team amounted to less than minimum wage.
In Oakland, plaintiffs alleged that the team charged them for their own uniforms, hair and makeup, docked them pay for missed rehearsals and held their pay until the end of the season. Plaintiffs alleged that when all was said and done, cheerleaders made less than minimum wage and were not paid for overtime, an affront to California labor employment law, or so it was alleged.
Gonzalez was a collegiate cheerleader at Stanford in her youth. AB 202 would treat cheerleaders as proper employees under the California labor code, which would serve to extend minimum wage and overtime provisions to cheerleaders who work for teams in the state of California.
There are three NFL teams (National Football League) in the state, whose cheerleaders would benefit from the proposed California labor employment law provisions in AB 202.
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