Business & Office News
Retired Teacher Files $12 Million Lawsuit
Los Angeles, CA: A retired teacher has filed a $12 million lawsuit against the Los Angeles Unified School District, alleging her employer did not provide her with a working environment that was free from harassment. Cathy Figel, an openly gay teacher, alleges in her lawsuit that she was subject to an unsafe work environment, including anti-gay language, vandalism and physical violence.
CBS News (11/12/15) reports that Figel, who taught physical education for 13 years at Marina del Rey Middle School, retired because of the repeated harassment. Figel alleges the school district did not take her complaints seriously, repeatedly dismissed her reports of harassment and was told not to identify herself as gay. Figel also said she was transferred to a different school, which she feels was retaliatory, and was prevented from participating in her school’s marine science program. The school district said in a written statement to CBS that it disagrees with the allegations and is vigorously defending itself.
Meanwhile, a California call center has agreed to pay $600,000 to settle allegations of harassment and retaliation. VXI Global Solutions was accused by the US Equal Employment Opportunity Commission (EEOC) of allowing a hostile work environment in which male and female employees were subjected to various sexual harassment including groping and touching, sexual propositioning, and comments of a sexual nature from their supervisors.
The EEOC further alleged that supervisors threatened staff and VXI Global Solutions retaliated against staff that reported the harassment. In addition to paying the $600,000, VXI Global Solutions will retain a consultant to revise policies and procedures regarding sexual harassment and retaliation; to create a system to track sexual harassment and retaliation complaints; and to provide training in dealing with harassment complaints.
“Sexual harassment continues to be a persistent problem in the workplace and a priority for EEOC,” said Rosa Viramontes, district director for EEOC’s Los Angeles District, in a written statement. “Workers should not have to endure a hostile work environment because of their sex which, if unchecked, is a violation of federal law.”
Sexual harassment and retaliation are violations of Title VII of the Civil Rights Act of 1964.
The lawsuit, which was initially filed in September 2014, is EEOC v. VXI Global Solutions, Inc., Case No. 2:14-cv-07444.
Plaintiffs Have Another Go at Farmers Insurance Exchange in California Lawsuit
Los Angeles, CA: It’s déjà vu for Farmers Insurance Exchange (Farmers), following the filing of a California wage and hour class-action lawsuit alleging Farmers improperly classified commercial claims representatives as exempt from overtime pay, while often being made to work upwards of 50 to 60 hours per week or more without compensation.
A similar class-action lawsuit (Bell v. Farmers Insurance Exchange) was settled some time ago following a landmark judgment against the defendant. That judgment, ending a lawsuit originally filed in 1996, was worth $210 million.
“Although many of the plaintiffs were Farmers claims adjusters at the time that Bell v. Farmers Insurance Exchange was resolved, they were not personal lines adjusters and accordingly were not included as class members in the final resolution of the case,” the complaint filed November 2, 2015 states. “Despite the fact that plaintiffs had similar duties and responsibilities to those claims adjusters, they were not considered members of the plaintiff class in Bell v. Farmers Insurance Exchange and accordingly have never received compensation for the overtime hours that they worked.”
This latest California wage and hour class action seeks to represent all those who were not part of the original lawsuit - current and former claims reps employed by the insurer in the state of California from May 2003 to present day. The lawsuit has been brought by the R. Rex Parris Law Firm.
California law requires that hourly, non-salaried workers are paid overtime for any hours worked beyond 8 hours in any given day or 40 hours in any given week. Meal breaks and rest periods are also mandated and must be compensated in kind if missed or not provided. There are various provisions in the California labor code that free employers from paying overtime, including jobs that are classed as management, or IT professionals who are salaried and whose pay has reached a certain threshold, as an example. Thus, there are legitimate instances where employees are exempt from overtime.
However, employers are also known to bend the rules in an attempt to avoid paying overtime to employees who properly qualify.
It has been alleged that following the settlement in the Bell v. Farmers case, the insurer duly reclassified their affected employees as qualifying for overtime, but in name only. A subsequent lawsuit filed in Los Angeles Superior Court in 2012 accused the insurer of continuing to deny their qualifying employees overtime while at the same time discouraging overtime pay, while maintaining a workplace culture that promoted and required work off-the-clock.
The 2012 lawsuit, which was not a class action but proceeded as an individual claim, was dismissed outright without prejudice by the court in June 2015. A new class action against the insurer was filed in September, apart from the lawsuit noted below which was filed earlier this month.
John Bickford, an attorney with the R. Rex Parris Law Firm, noted that “insurance companies are all about making profit for themselves and trying to cut corners when they have to pay.”
The California wage and hour class action is Karen Mickey et al. v Farmers Insurance Exchange, Case Number BC599916, in the Superior Court of the State of California, County of Los Angeles.
California Family Rights Act Prevents Employer Interference
San Diego, CA: Under the California Family Rights Act (CFRA), employees of covered employers are eligible for certain job protections, including the ability to take time from work for the birth of a child or the serious health condition of the employee’s child, parent or spouse. When the employee returns to work following the leave, the employee must be given the same or an equivalent job, meaning the employee cannot be fired for taking California CFRA leave - or, for that matter, for taking leave under the Family Medical Leave Act, which is the federal statute protecting employees.
Employers who attempt to prevent an employee from taking his or her CFRA leave could face claims of interference, which occurs when an employer refuses to authorize legitimate CFRA leave, discourages the employee from using the leave, or takes actions to avoid CFRA duties. For example, an employer who decreases an employee’s work hours to make the employee ineligible for leave could be guilty of interference.
In other words, denying leave is itself a violation of CFRA, but so is taking action to ensure the employee is not eligible for that leave in the first place.
Furthermore, employers cannot discriminate against employees or prospective employees for having used or attempted to use their CFRA rights. Employers who use a prospective employee’s assertion of his or her CFRA rights as a reason not to hire that person could be guilty of interference.
“Employers cannot use the taking of CFRA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can CFRA leave be counted against an employee under an employer’s attendance policies,” the regulations state.
Even when employers give other reasons for a job termination, if an employee can prove the firing was likely caused by assertion of CFRA rights, the employee may be able to file a lawsuit. One such suit was filed by Brenda Moore against Century Gaming Management, Inc. (case number B249978), after Moore was fired on the day she returned from CFRA leave. Although she was told she was fired to save costs, the courts found that because she was fired the day she returned from CFRA leave, because she was the only staff person from her department fired, and because her department had, in the previous month, hired six people, she was likely fired in retaliation for taking her leave. The California Court of Appeal ruled in Moore’s favor and reversed a summary judgment in favor of Moore’s employer.
CFRA also prohibits employees from waiving their prospective rights under CFRA and further prohibits employers from inducing employees to waive their rights. This means that employers cannot offer employees other benefits in exchange for waiving their CFRA rights.
Employees who have had their CFRA or FMLA rights interfered with - including having leave denied or being retaliated against for taking leave - may be eligible to file a lawsuit against their employer to enforce their rights and recover any lost wages.
Animal Welfare Complaints Result in Wrongful Termination Lawsuit
Vallejo, CA: Concerns about animal welfare at a Six Flags park in California have reportedly resulted in a wrongful termination lawsuit against the theme park operator. Michael and Holley Muraco filed the California wrongful termination lawsuit because they say they were retaliated against for reporting Six Flags for poor animal care.
According to court documents (found online at NBC News), Michael Muraco had been the Director of Animal Care for Six Flags since 2007. At the time he was hired, Michael reportedly told his supervisors that upgrades were required to address animal care, including poor water quality and public safety. Among his concerns were that dangerous animals could escape enclosures and dolphins were at risk for respiratory illness. Meanwhile, Holley Muraco is a Zoological Reproduction Physiologist, who signed a five-year contract with Six Flags in 2012 to assist with reproduction of animals.
Michael claims that despite his repeated warnings and complaints, steps were not taken to address his concerns until matters became serious, such as when an elephant was caught climbing over an enclosure.
“Michael Muraco complained, inter alia, that dolphins were addicted to unnecessary drugs, that marine mammals were not being fed proper diets, and that the Park was not putting enough salt in the salt water,” court documents allege. “The failure to address these problems was extremely detrimental to the health and welfare of the animals at Six Flags.”
Holley Muraco, meanwhile, reported issues that she felt caused an “abnormally high mortality rate for baby animals,” including dolphin water that was not properly temperature controlled, dolphins being given daily steroids to mask chronic illnesses and abusive dolphin training techniques. An investigation by the USDA following the deaths of two baby dolphins concluded the Muracos were correct in their concerns, and cited Six Flags for some of its infractions.
Ultimately, Michael and Holley Muraco were terminated from their positions and were reportedly told they were terminated because they endangered animals at Six Flags. In their lawsuit, Michael and Holley Muraco allege they were retaliated against for reporting legal violations at Six Flags.
The lawsuit alleges violations of the Whistleblower Protection Act, the Workplace Health and Safety Act, and public policy. Furthermore, both Michael and Holley allege defamation on the part of various Six Flags employees. Six Flags issued a news release in which the company said the lawsuit is without merit.
Insurance Lawsuits Allege ERISA Violations
Los Angeles, CA: A "California ERISA lawsuit has been filed against Blue Shield of California Life and Health Insurance Co., alleging the insurer violated ERISA laws by wrongfully denying necessary medical treatment. The lawsuit joins other lawsuits filed against various insurers alleging they are wrongfully denying hepatitis patients vital treatment.
According to reports, a lawsuit was filed by Aram Homampour, who says his doctor prescribed Harvoni to treat hepatitis C. Hepatitis C is a contagious blood disease that can cause serious liver damage. The Centers for Disease Control and Prevention estimate 15,000 people in the United States die each year from hepatitis C-related liver disease. Harvoni, approved by the US Food and Drug Administration (FDA) in 2014, has about a 95 percent cure rate and comes with very few side effects. The problem, however, is the cost: a 12-week treatment program of Harvoni costs around $99,000.
Lawsuits filed against insurers allege the insurers are wrongfully denying Harvoni treatment to save money. The denials are reportedly given because insurers claim patients’ livers are not sufficiently damaged to warrant treatment with Harvoni.
In his lawsuit, Homampour alleges Blue Shield violated the Employee Retirement Income Security Act (ERISA) because it used internal policies to overrule a doctor’s determination of appropriate medical treatment. Homampour claims Blue Shield is forcing him to live with a serious health problem and related issues until his liver becomes sufficiently damaged enough to approve treatment.
Homampour’s lawsuit seeks class-action status for any patient whose Harvoni claims were denied by Blue Shield for reasons linked to medical necessity or experimental treatments.
A different lawsuit also alleging violations of ERISA linked to Harvoni treatment was filed in July against Anthem Blue Cross, as reported by Gordon Gibb for LawyersandSettlements. According to reports, Marina Sheynberg filed her lawsuit after her Harvoni treatment was denied because the treatment was not deemed medically necessary by the insurer. Sheynberg alleges she was told her test results showed that her liver damage was not significant enough to qualify for coverage of the Harvoni treatment. Sheynberg’s lawsuit also seeks class-action status and an injunction requiring Anthem to reevaluate denied Harvoni claims.
The Blue Shield lawsuit is Homampour v. Blue Shield of California Life and Health Insurance Company, case no 3:15-cv-05003, US District Court of California, Northern District.
California OSHA Labor Lawsuit Seeks to Hold Defendant to Original Settlement
Los Angeles, CA: A California whistleblower who sued his former employer over unsafe working conditions and won a settlement has yet to see a dime after his former employer folded the company and reorganized operations under a different name, allegedly to avoid complying with the settlement. Undaunted, the US Department of Labor has launched a California OSHA labor lawsuit against the former employer of Herbert Alexander.
Alexander, the whistleblower who brought a lawsuit alleging violations of statutes governed by the Occupational Safety and Health Administration (OSHA), complained to his employer following one of his runs as a trucker with the firm, that his rig was leaking oil, was fitted with bald tires and was infested with bedbugs. The trucker noted that he was forced to sleep in motels while on the road, in an effort to secure enough sleep to drive his rig safely.
When Alexander complained to his employer following his return from the road in July of 2013, he claims to have been effectively fired. Alexander claimed in his California OSHA whistleblower lawsuit that his employer docked his pay for the cost of repairs to the truck as well as his accommodations. Further, the company refused to provide him with additional routes, and thus the work dried up.
According to court documents, the defendant, Skyway Inc., entered into a settlement agreement with Alexander in 2013. However, it is alleged the settlement was never honored by Skyway Inc., which reportedly ceased operations only to be reborn under a different name, Skyway Group of Companies Inc. (Skyway Group).
Alexander, together with the US Department of Labor, holds that a company cannot escape a liability through a simple reorganization. “[Skyway Group] has the same owners and officers including [President Rajinder Banghu], operates for the same business purpose, using the same or a similar business model out of the Fontana truck yard, and the same corporate logo and motto as Skyway,” the complaint said. “As the alter ego and/or successor-in-interest to Skyway, Skyway Group is subject to enforcement of the Secretary’s final order, just as Skyway was and is.”
As part of the California OSHA lawsuit settlement, Alexander was to be re-instated as a driver with the firm, and to have his back wages paid. However, Skyway Inc. ceased operations and suspended its corporate registration for the state of California.
The DOL says the defendant cannot employ those changes as a viable reason to escape their obligation to their former driver, who feared for his safety and others on the road due to the alleged condition of the truck he was provided to drive by his employer.
The latest California OSHA lawsuit, filed by the Department of Labor on behalf of Alexander, seeks to hold Skyway Group to the original 2013 settlement that was allegedly never honored.
The case is Thomas Perez v. Skyway Inc., Case number 5:15-cv-01995, in the US District Court for the Central District of California.
Understanding California Family Medical Leave
San Francisco, CA: When it comes to understanding employment rights, areas such as family leave can be complicated. That’s because family medical leave is covered federally by the Family and Medical Leave Act but is covered in California by the California Family Rights Act. Ultimately, though, it means eligible employees are able to take up to 12 weeks off, paid or unpaid, for certain reasons.
Those reasons include the birth of a child, or adoption, or foster care placement of a child; to care for an immediate family member (that is a spouse, child or parent) who has a serious health condition; or for the employee’s own serious health condition. During FMLA/CFRA leave, the employee’s job is protected, meaning the employee is entitled to return to the same position of employment he or she had when the FMLA/CFRA leave began, or an equivalent position.
Those eligible for FMLA/CFRA leave include employees who have worked for the employer at least 12 months as of the start of the FMLA/CFRA leave and has worked at least 1,250 hours during those months, not counting sick leave, vacation leave or holidays. Under FMLA, employees must also work at a location with at least 50 employees within a 75-mile radius.
Employees who are eligible for leave under FMLA/CFRA but are denied that leave may be able to file a lawsuit against their employer for violation of these laws. Similarly, employees who take their leave but are not reinstated to their position (or an equivalent position) of employment may also be eligible to file a lawsuit.
There are situations in which employers can terminate an employee on FMLA leave, but in such cases there must be evidence that either the decision to terminate was made before the employee took the leave, or that the employee had been non-compliant or had serious on-the-job performance issues that existed before the leave was taken.
If those circumstances do not exist, employees may be able to file a lawsuit against their employer. Claims against employers can include interference, which is defined as refusing to authorize legitimate CFRA leave, discouraging an employee from taking CFRA leave and avoiding employer responsibilities under CFRA, according to The National Law Review (3/26/15). For example, an employer who reduced an employee’s hours of work so the employee is no longer eligible for CFRA leave could count as interference. Employers who discriminate against an employee for taking CFRA leave or who retaliate for taking CFRA leave may also face claims of interference.
California Employee Discrimination Suit Nets $4.75 Million Award
Sacramento, CA: A California employee discrimination lawsuit has resulted in a multimillion-dollar award for the plaintiff, who alleged her job termination was the result of age and gender discrimination. The plaintiff, Barbara Anderton, filed the lawsuit against Bass Underwriters in 2013 and according to the Sacramento Bee (10/15/15), recently received a $4.75 million award.
In 2013, Anderton was 61 years old and reportedly one of the highest earners at Bass Underwriters, where she worked for almost 15 years. She alleged in her lawsuit that she was fired and replaced by a younger male employee. Bass responded to the allegations saying Anderton quit her job because of a family dispute - her brother is an executive vice president at Bass Underwriters.
But a jury agreed with Anderton, and found Bass Underwriters not only discriminated against Anderton, but also harassed her and retaliated against her because she is female and 61 years old. The jury then awarded her $2.75 million in punitive damages and $2 million in compensatory damages.
A study conducted by the National Bureau of Economic Research (and cited by BloombergBusiness [10/26/15]) suggests that age discrimination is still a widespread problem in the United States, especially for older women. The study involved three researchers sending fictional resumes for a variety of jobs, with the ages of the “workers” changed. Researchers found that the rate of callbacks was higher for younger job applicants than older ones, and the highest level of discrimination was reportedly seen in older women.
Age discrimination is illegal under state and federal laws. Employers are prohibited from making employment decisions on the basis of a person’s age or gender. But that doesn’t always stop employers from taking discriminatory actions. In such cases, employees can file an employment discrimination lawsuit against their employer.
According to court documents, that’s what Maria Sicola did when she filed a $40 million age and gender discrimination lawsuit. That lawsuit was filed in New York, but Sicola worked in the company’s California office and alleges she was fired one day before her 60th birthday and replaced with a younger male colleague. Sicola had reportedly worked for her employer for around 35 years.
Additionally, Sicola’s lawsuit alleges she was harassed by a male colleague but her employer failed to take action on her complaints, and was denied promotions and pay raises because she is a woman. In the lawsuit, Sicola alleges her employers repeatedly promoted less qualified male employees while not supporting Sicola.
Sicola’s lawsuit is Maria Sicola v. Cushman & Wakefield Inc., in the Supreme Court of the State of New York (no case number currently available).
Another Tale of Two California Harassment Lawsuits
San Francisco, CA: A California harassment lawsuit has been filed against a janitorial contractor based in Gilroy over allegations of sexual harassment against a female employee by a supervisor. The lawsuit contends that M.A Jones Inc., which also does business as Cleaning Services, did nothing about the harassment allegations, then fired the plaintiff when she reported the behavior. Meanwhile, a separate harassment lawsuit ended in July with a multimillion-dollar verdict in favor of the plaintiff.
The Contra Costa Times (9/30/15) reports the latest lawsuit involves plaintiff Virginia Medina, who worked for M.A. Jones Inc. Medina claims that a supervisor made sexually explicit comments to her, and at one point escorted her to an isolated area where the supervisor attempted to initiate sexual activity, or so it is alleged.
When Medina rebuffed the supervisor’s advances and reported the alleged activity to the defendant’s leadership team, the plaintiff alleges there was no response. She was fired from her position three months later, and alleges the termination was due to her rebuff of her supervisor’s advances and subsequent reporting of the alleged harassment.
The lawsuit has been filed by the US Equal Employment Opportunity Commission, alleging various violations to US federal laws which require that an employer “take effective and immediate action” in such situations, said William Tamayo, the agency’s San Francisco district director, in comments published in the Contra Costa Times. “[Our agency] cannot accomplish its mission of equal employment opportunity unless workers feel secure in their right to speak out against discrimination without the fear of retaliation.”
Medina is of Mexican descent. An attempt to reach a settlement was not successful. The lawsuit was brought to San Jose’s division of the US District Court for the Northern District of California.
Meanwhile, a California harassment and discrimination lawsuit that resulted in an $8.7 million jury award in favor of the plaintiff in July was in the news again earlier this month after defendant Rite Aid Corp. was ordered to pay $1 million in attorney’s fees. The case is Robert Leggins v. Rite Aid Corp., case number BC511139, in the Superior Court of the State of California, County of Los Angeles.
The original California harassment lawsuit was brought by plaintiff Robert Leggins, who worked as a store manager at Rite Aid. Following a robbery attempt during which Leggins was injured, the plaintiff alleges he was harassed and accused of shirking his responsibilities in light of an injury that required several surgical procedures to remedy. Even while recovering, it is alleged that supervisors required him to perform hard manual labor, and mocked him for his injury and his race. Leggins had worked at the Rite Aid since 1985 and was a long-standing employee.
In July a jury dismissed allegations of discrimination, but found for the plaintiff on allegations of harassment and undue punishment. Leggins was awarded $3.7 million for lost wages and other losses, together with $5 million in punitive damages in the California harassment lawsuit.
Undocumented Workers Integral to California Economy
Camarillo, CA: A decision in a wage and hour lawsuit in New York not only carries positive implications for any undocumented worker in the state of California who may feel wronged by an employer, it also lends itself to the depth and breadth of the undocumented workforce in the Golden state.
The New York lawsuit was David Rosas et al v. Alice’s Tea Cup, LLC, Case No. 1:14-cv-08788-JCF, filed July 6, 2015 in the US District Court for the Southern District of New York. The plaintiffs brought wage and hour claims against their employer, citing violations to the Fair Labor Standards Act (FLSA) and other labor laws recognized by the state of New York. The defendant came back with a request for the plaintiffs to verify their immigration status, which the plaintiffs fought on grounds that immigration status was irrelevant to the matters at hand.
The judge in the case agreed, noting in his decision that the risk of injury to the plaintiffs and the potential for intimidation outweighed the probative value of revealing immigration status for reasons of credibility. To wit, US Magistrate Judge James C. Francis IV in his decision noted that “federal courts have made clear that the protections of the FLSA are available to citizens and undocumented workers alike.”
Such a decision translates into a positive for both the undocumented worker in the state of California, and the state economy in general. That’s because undocumented workers - especially those who work in the agricultural community - make up a significant portion of the state economy.
The Ventura County Star (9/13/15) reports that agriculture is a $2 billion industry in Ventura County. To that end, the Central Coast Alliance United for a Sustainable Economy (CAUSE) reports that an estimated 15,000 undocumented immigrants work the fields in Ventura County alone. Using data from the Census Bureau and Public Policy Institute of California, CAUSE estimates there are more than 72,000 undocumented immigrants in the county, about 9 percent of the population.
That’s a significant number. “To put that into context, that’s more than the population of the city of Camarillo,” said Maricela Morales, executive director of CAUSE, in comments published in the Star. “What if we woke up and the entire population of Camarillo was gone? The impact on our county economically and the social fabric of our community...it would be devastating.”
The issue has relevance given the crosshairs of rhetoric undocumented workers appear to be caught within - especially in the context of the Republican nomination debates, and various positions taken by some of the candidates and one in particular who has pledged to deport all undocumented workers from whence they came. This, in spite of the fact that the FLSA and related agencies in the state of California specifically reference the undocumented worker and affords them protections by way of wage and hour laws that protect all workers in the state of California, even undocumented workers regardless of whether or not they are legally authorized to work in the United States.
The undocumented worker who may feel maligned in the state would no doubt be cheered by a recent settlement in a class-action lawsuit reached with the help of the United Farm Workers (UFW) union, which partnered with table grape workers at Sunview Vineyards. According to Kerry Kennedy, president of Robert F. Kennedy Human Rights who was writing in the Sacramento Bee (9/24/15), the settlement was worth $4.5 million.
Frank Barajas, a history professor at California State University Channel Islands, noted in the Star that “the majority of people working in our fields are undocumented,” he said, adding that mass deportations such as those recently debated amongst the Republican nominees would translate to “a complete collapse of our state economy.”
The takeaway for the undocumented worker: you have rights, both federally and in the state of California. And your presence is important to and adds value to the state economy. Any undocumented worker or group of workers who suspect violations of state wage and hour laws, or other statutes both state-centric and federal under the FLSA, would be encouraged to take advantage of rights and protections afforded you and fight for your due.
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