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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.
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.
TrueCar Truly Believes It Is Compliant with California Law
Santa Monica, CA: In an ongoing California compliance battle between the California New Car Dealers Association (CNCDA) and TrueCar Inc. (TrueCar), the former continues to chase the latter in the courts over what the CNCDA feels is unlawful pricing, together with false and misleading advertising on the part of TrueCar, or so it is alleged.
TrueCar is an entity that was founded in 2005, and reportedly has grown to be a popular resource for car buyers in the Golden State. According to the Sacramento Bee (1/7/16), TrueCar forges relationships with car dealers across the country, and employs those relationships to provide accurate and detailed pricing information on the cost of vehicles through its digital platform. TrueCar claims to have the capacity to link buyers to economically favorable offers from its affiliated dealers, and thus avoid on-site haggling that is normally the bastion of the automotive sales industry.
However, the CNCDA has cried foul, alleging that TrueCar is not complying with California law that serves to regulate the automotive sales industry. For one, the CNCDA accuses TrueCar of false and misleading advertising by way of assertions that TrueCar advertises a claim of “no surprise or hidden fees” on its website, when in reality - or so it is alleged - TrueCar receives a fee from each sale moved through its digital platform.
“TrueCar actually matches a buyer and a seller and gets paid for doing so. This is brokering, and TrueCar isn’t licensed as such,” insisted Brian Maas, CNCDA president, in comments published in the Sacramento Bee. The California compliance lawsuit asserts that TrueCar is not in compliance with California law and seeks a remedy to bring TrueCar into compliance.
TrueCar, for its part, asserts that it is already in compliance, and suggests that a lawsuit having twice been amended by the plaintiff is a sign that the CNCDA non-compliance lawsuit is full of holes.
The CNCDA, based in Sacramento, represents over a thousand franchised new car and truck dealers in the state of California and bills itself as the largest association of its kind in the United States. It brought a California non-compliance lawsuit against TrueCar in May of last year.
According to the Sacramento Bee, the plaintiff made its first of two amendments to its lawsuit in the summer following TrueCar’s attempts to have the lawsuit dismissed in August. Johnny Stephenson, identified as the Chief Risk Officer for TrueCar, suggested in an e-mailed statement to the Sacramento Bee that his company moved to have the newly amended complaint dismissed outright, based on various “defects” TrueCar noted in the complaint.
According to published reports, the Los Angeles Superior Court in Santa Monica did actually dismiss the CNCDA complaint in December of last year, but left the barn door open sufficiently to allow the plaintiff to further amend its complaint and refile again.
The CNCDA did just that and resubmitted its complaint last month. The plaintiff contends that TrueCar is, effectively, acting as a broker in matching buyers with vehicles - and in the state of California, entities undertaking brokerage of any kind must be licensed to do so.
According to the Los Angeles Times (5/20/15), TrueCar charges its affiliated dealers a fee for each sale - about $299 for a new car and $399 for a used car. In some states, including California, TrueCar charges a monthly subscription fee that roughly translates to those rates. It is that subscription fee that generated the California lawsuit. Since California state law dictates that consumers must be provided with a disclosure that outlines whether they or a dealer are paying a fee to a broker, the CNCDA sees that subscription fee as the impetus for a non-compliance lawsuit.
TrueCar, based in Santa Monica, insists it remains compliant with the letter of the law. To that end, the CNCDA is not seeking monetary damages in its California compliance lawsuit, but rather seeks compliance on the part of TrueCar according to California law, should it wish to continue its current business model.
Cigna Settles ERISA Lawsuit
Los Angeles, CA: Cigna has agreed to settle an ERISA lawsuit alleging patient harassment. The ERISA lawsuit was filed against Cigna by Nutrishare Inc, an intravenous nutrition provider. In the lawsuit, Nutrishare alleged Cigna harassed patients who attempted to use out-of-network benefits and denied coverage that should have been allowed.
According to court documents, Nutrishare alleges that Cigna advertised health insurance policies as giving patients the choice to obtain health care from any health care provider, even if that health care provider is considered “out of network,” although plans that allow for out-of-network health care cost more than those that have restrictive health care provider options. Nutrishare offers long-term, in-home intravenous nutrition services allowing patients to obtain nutrition they need to survive serious illness and infection, but is considered by Cigna to be an out-of-network provider.
Nutrishare claims Cigna retaliates against patients who attempt to use their out-of-network benefits by “making threatening telephone calls to those patients, by directing the patients’ physicians to encourage the patients to switch from out-of-network providers to inferior, in-network providers, and by underpaying and/or failing to pay the patients’ out-of-network providers.” Furthermore, Cigna is accused of denying payment or underpaying for services provided using false pretenses, forcing patients to incur financial liability.
In the lawsuit, Nutrishare gives the example of one patient who was diagnosed with idiopathic gastroparesis, which causes partial paralysis of the stomach. The patient requires daily TPN (total parenteral nutrition) for more than 10 hours a day to ensure she receives enough nutrients and calories to survive. The patient (whose name is not given in court documents) was allegedly directed by Cigna to use an in-network provider for her TPN services, but suffered from central line infections, and was given incorrect or incomplete orders of TPN products and supplies. On the advice of her physician, the patient switched to Nutrishare and has since not suffered any complications. According to the lawsuit, Cigna responded by phoning both the patient and the patient’s physician, making the patient feel threatened.
Additionally, Cigna is accused of not properly paying for services that should be covered for patients who pay extra to use out-of-network services.
“The goal of Cigna’s harassment and failures to pay are clear: Cigna wants to save money by coercing its patients into using only in-network providers, despite the fact that these members pay for PPO plans that permit full access to out-of-network providers and that these patients do not want to switch to a different, inferior provider of TPN services,” the lawsuit alleges. “One of Cigna’s tactics for achieving this goal is to make providing services to Cigna members so unattractive to Nutrishare - because those services will not be paid for - that Nutrishare will have no choice but to turn away Cigna patients in the future.”
Cigna has reportedly agreed to settle the lawsuit, which alleged the company violated the Employee Income Retirement Security Act by intimidating policyholders into using in-network health care providers.
The lawsuit is Nutrishare, Inc., et al v. Connecticut General Life Insurance Company, et al, Case number 2:15-cv-00351.
California Minimum Wage Increases
San Diego, CA: As of January 1, 2016, the California minimum wage has increased to $10.00 per hour. That means all eligible employees must be paid at least $10.00 per hour for regular hours. Employees who are not properly paid the minimum wage may be eligible to file a wage and hour lawsuit against their employer.
According to the Department of Industrial Relations, the January 1 increase is the second in 18 months. On July 1, 2014, California’s minimum wage was increased from $8.00 per hour to $9.00 per hour. The second stage of the increase was the January 1, 2016 raise to $10.00 per hour. The pay increase took effect as of the first day of January, meaning all employees who earn the state minimum wage should see the change in their pay beginning January 1.
“Almost all employees in California must be paid the minimum wage as required by state law,” the department notes in its news release. Independent contractors and other workers may be exempt from minimum wage pay, but most workers are eligible for it. Employers must also post information about wages, hours and working conditions at an employee-accessible area. As a result of the minimum wage increase, eligible employees will also see an increase in the minimum overtime pay required.
Some cities in California have higher minimum wages than state law. According to KTLA (12/28/15), San Francisco, Oakland and Emeryville have minimum wages of more than $12. Los Angeles reportedly may raise minimum wages in the city to $15 per hour by 2020.
Cheerleaders in California might notice the biggest jump in pay. As of January 1, all California sports teams are required to pay their cheerleaders at least minimum wage. Although that will only affect a small number of games this season, it will affect all games for California teams going forward.
Cheerleaders are frequently treated as independent contractors instead of as employees, despite their supervisors having a great deal of control over their appearance and their cheerleading schedule. The new law (AB 202) requires that cheerleaders in California be treated as employees, meaning they are also eligible for paid sick leave and meal breaks.
In recent years, lawsuits have been filed by cheerleaders in various sports leagues alleging their pay often amounts to well below minimum wage when expenses, fees and penalties are factored in. Some of those lawsuits have been settled for millions of dollars, while others are still pending.
New California FMLA Laws Take Effect
Sacramento, CA: Parents in California now have more flexibility when it comes to their families, thanks to a new California family leave bill. The bill, which took effect as of January 1, increases protections for parents who have to take time off to care for children or enroll children in school.
Senate Bill 579 was signed into law by Governor Jerry Brown in October 2015, and affects employers with 25 or more employees at the same location. Parents can take up to 40 hours per year for the care of a sick child or to tend to a child out of school because of an emergency or other unscheduled school closure. The bill also extends the protection to stepparents, foster parents, grandparents and other guardians.
Under the law, non-exempt employers must provide up to 40 hours per year so parents can deal with school or childcare-related situations. Activities included in the protections are enrolling or reenrolling a child in a school or with a licensed childcare provider; participating in school activities; or dealing with a childcare provider emergency or school emergency.
Under the law, for example, a parent could take a leave day if his or her child’s school was unexpectedly closed.
Furthermore, parents and guardians can use a paid sick day to care for a sick child. So, a parent who has accrued sick leave can now use that sick leave either for his or her illness or to care for a sick family member. This would include treatment of an existing health condition or absence resulting from domestic violence.
Employers are prohibited from discriminating against or terminating employees who take protected leaves. Employees whose rights to family leave or sick leave are violated may be eligible to file a lawsuit against their employer.
In addition to changes to family leave, California also has a new minimum wage law. As of January 1, 2016, California’s minimum wage is set at $10.00 per hour, up from $9.00 per hour. The change also means that employees who make minimum wage will see a bump in their overtime pay.
And there have also been changes to the Fair Pay Act, which expand equal pay to jobs that are “substantially similar,” rather than jobs that are identical, and to jobs for the same employer or company even if those jobs are at different locations. Previously the law only applied to jobs at the same location. The changes also make it illegal for employers to prevent employees from talking about their pay.
Judge in Uber Case Rules on Arbitration Agreements
San Francisco, CA: Plaintiffs in the Uber misclassification lawsuit have been handed another victory in their litigation against the ridesharing company. The judge in the lawsuit has ruled against Uber’s arbitration agreement, setting the stage for thousands more plaintiffs to join the lawsuit.
US District Judge Edward Chen ruled Uber’s arbitration agreement was not enforceable, meaning drivers who signed it are eligible to join a class-action lawsuit against the ridesharing company after all. In September, Judge Chen granted plaintiffs class-action status, although at the time the class did not include drivers who signed Uber’s arbitration agreement.
In December, however, Judge Chen ruled on the arbitration agreements, finding them unenforceable as a matter of public policy. Judge Chen found that the 2014 and 2015 arbitration agreements “contain a non-severable PAGA [Private Attorney General Act] waiver, rendering the entire arbitration agreement also unenforceable.” As a result, UberBlack, UberX and UberSUV drivers will now be eligible to join the lawsuit if they signed up under their individual name, even if they did not opt out of the arbitration agreement.
In addition to ruling on the arbitration agreements, Judge Chen also ruled class members could pursue claims linked to work expenses, including vehicle and phone expenses.
Uber has appealed the decision.
The lawsuit was initially filed by Uber drivers who claimed they were misclassified as independent contractors even though Uber reportedly treated them like employees. Because they were classified as independent contractors, they were not eligible for certain protections, including overtime, sick days and health insurance.
Some employers require workers to sign arbitration agreements, which essentially waive an employee’s right to file a lawsuit to settle disputes such as wrongful termination and wage complaints. Instead, employees are forced to go through an arbitration process to resolve any claims. Arbitration cases have different rules about sharing information between claimants and defendants than court processes and usually do not allow for appeals.
Up to 160,000 drivers could now be included in the class against Uber, although some drivers are still excluded. The ruling also shows that not all arbitration agreements are enforceable and the courts may still be required to make judgments on the legitimacy of individual agreements.
The lawsuit is O’Connor et al. v. Uber Technologies Inc. et al., case number 3:13-cv-03826, US District Court for the Northern District of California.
California Fair Pay Act About to Take Effect
Sacramento, CA: On January 1, 2016, California’s Fair Pay Act, SB 358 (Jackson), will take effect. The bill will give more grounds for employees to challenge pay discrimination. In addition to addressing wage disparity, the bill is designed to prevent employers from retaliating against employees who discuss their pay.
A Hard Life, Unfairness the Bastion of the California Undocumented Worker
San Francisco, CA: Julieta Yang’s voice is only one in the wilderness that is the undocumented worker in California. But the single mother of three who hails from the Philippines is an example of the challenges and hurdles faced by the undocumented worker in the state of California.
A sector, by the way, that is integral to the state economy. And yet, as important as they are, undocumented workers are maligned, ridiculed, often abused and frequently underpaid. It remains a sad reality that many employers show more kindness to their pets, forgetting that the undocumented worker is a human being.
According to The Guardian (11/15/15), Yang has been an undocumented worker for some 20 years. Separated from her children, who remain in the Philippines, Yang regularly sends money home to her kids in spite of barely making enough to live on herself.
Since 2008, Yang had been working for Uber executive Cameron Poetzscher and his partner Varsha Rao, head of global operations for Airbnb. Based initially in Singapore, Yang found herself in San Francisco when her employers relocated to the United States in 2013.
No longer employed by the couple, Yang is currently embroiled in a lawsuit against her former employers amidst allegations of abuse and a situation where she was chronically underpaid. “I served the whole family,” she told The Guardian. “I did their laundry, I cleaned their home. I did whatever they asked me to do at any time of the day…despite that, they treated me with great disrespect.”
Yang’s role was ostensibly as a live-in nanny in her employer’s San Francisco home. In her California undocumented worker lawsuit, Yang asserts she was paid a flat rate based on five hours of work per day. In reality, or so it is alleged, Yang toiled for nine hours per day for six consecutive days each week. Yang also alleges she was not provided regular meal breaks or rest periods, and was not paid overtime, amongst other allegations.
In her lawsuit, however, Yang faces an uphill battle in that her allegations are founded within the four walls of a private home in the absence of witnesses. Thus it comes down to her word against those of her former employers. Carole Vigne, an attorney and the director of the Wage Protection Program at the Legal Aid Society Employment Law Center in San Francisco, says the burden is on the worker to prove that the violations did occur.
“I’ve seen employers doctor time sheets and forge signatures of workers to disprove allegations of wage theft,” Vigne told The Guardian. “People go to extreme lengths to protect themselves from the allegations and the workers have to fight that.”
Yang has no idea what her future holds. But she feels an overriding need to speak out on behalf of all undocumented workers like her.
She has plenty of company.
According to a 2012 survey by the National Domestic Workers Alliance, 23 percent of almost 2,100 nannies, caregivers and housecleaners were paid below the state minimum wage, 35 percent worked long hours without breaks, and 19 percent reported being threatened, insulted or verbally abused. The survey shows that live-in domestic workers were even worse off, with 67 percent paid below the state minimum wage and 36 percent threatened or verbally abused.
Domestic workers routinely face wage theft, long work hours without rest, hostile work environments and sexual harassment on the job, according to Katie Joaquin the campaign coordinator for the California Domestic Workers Coalition. Immigrants can be even more vulnerable to exploitation.
It’s important for undocumented workers in California - a big part of the state’s economy - to fight back against abuse.
Yang’s voice is just one cry in the wilderness. She’s hoping her cry will grow to a chorus in due course.
California Judge Grants Preliminary Approval to $1.8 Million Settlement
Los Angeles, CA: A California Wage and Hour Employment class-action lawsuit reached an important milestone a week ago when a US District Court Judge gave a nod to a settlement worth $1.8 million. Up to 22,000 class members will share in about $1.2 million, with the remainder going to attorney’s fees.
The defendant in the case is the Burlington Coat Factory Warehouse Corp (Burlington). According to court records, the allegations centered on the deprivation of rest periods and a requirement for bag checks that were conducted off the clock, allegedly depriving class members of wages to which they were entitled.
The original California wage and hour lawsuit (Armida Rodriguez v. Burlington Coat Factory Warehouse Corp. et al., Case Number 2:13-cv-02426, in the US District Court for the Central District of California) was filed in 2012 by named plaintiff Armida Rodriguez. Two years later, in November 2014 Rodriguez filed her motion to certify the class given the belief that Burlington maintained a “uniform policy” relating to rest periods and bag checks that would have affected all non-exempt employees in Burlington’s 60 locations across California, in similar fashion.
According to court documents, the settlement benefits all current and former hourly, non-exempt (for overtime purposes) employees of Burlington who worked in any one of its retail stores in the state of California from October 2008 through the date of settlement approval.
The plaintiff, in her California wage and hour lawsuit, asserted that Burlington maintained a handbook of policies and protocol requiring managers to conduct bag checks for security purposes after hourly employees had already clocked out for the day.
On Wednesday, December 2, it was reported that US District Judge Dean D. Pregerson granted preliminary approval of the $1.8 million settlement. The next step in the process comes early in the New Year, when Judge Pregerson will hear arguments for a final fairness and approval hearing on February 29, 2016.
In his order granting preliminary approval, Judge Pregerson referenced the “risk, expense, complexity and likely duration” of trying the litigation, together with the risks associated with trying to maintain class-action status throughout a pending trial.
Thus, he granted preliminary approval of the settlement.
The requirement for bag checks at major retail establishments has long been the bane of low-paid retail workers who are often required to wait in long lines for mandated bag checks for security purposes. The problem, plaintiffs say, is that such security checks are undertaken on their own time, after they have clocked out for the day. In some cases, employees are often required to undergo security checks prior to commencing their meal breaks - again, on their own time, which also is alleged to impinge on the length of time they have available for nourishment and rest.
To combat these alleged California wage and hour injustices, plaintiffs have taken to the courts for redress.
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