Business & Office News
Wrongful Termination on Workers’ Compensation Violates California Labor Law
At issue is an incident that happened almost a year ago. Valerie (not her real name) was injured on the job. She filed a workers’ compensation claim and took a few weeks off work. Her doctor said she could return to work on modified duty: she couldn’t lift anything more than 10 lbs. Then Valerie had a death in the family and requested time off to attend a memorial service for a family member. She got permission and decided to take three weeks total: two weeks vacation leave and one week family leave.
“On the day I was scheduled to return to work, I was terminated as soon as I walked in the door,” says Valerie. I couldn’t believe it - I had nothing negative in my personnel file. However, one of the board members had an issue with me from last March regarding the board fundraising and recruitment, which they insisted I did even though it was against the bylaws and articles of incorporation of the company. I believe they were just waiting for an opportunity to fire me and save money.”
Valerie was told some financial issues warranted her termination, but that took place two years ago and she was cleared of any wrongdoing. “They told me that because of my long service I had the opportunity to resign,” says Valerie. “I refused to resign because I haven’t done anything wrong.
“They told me that all my stuff was packed. I left my keys behind, made sure I had all my belongings and left. I was stunned. I literally bent over backwards for this agency and I have gone without pay. I was on salary and worked many hours without overtime compensation. I never even asked for overtime pay. They were short-staffed (that is how I sustained my injury - because maintenance wasn’t around to help me move furniture and boxes) so I did much more than my job description called for. I even cleaned toilets.
“I was devastated. I don’t even know where to begin regarding unemployment and filing a claim with the labor board. I am still fumbling my way around because this is something I never expected. I do know that if I were to resign I wouldn’t be entitled to unemployment.
“I believe they gave me the opportunity to resign so that they wouldn’t be held responsible for their actions, meaning wrongful termination. Knowing this board, they believe in what they think is right, and that is why they don’t fundraise. In the case of wrongful termination, they likely believe my workers’ compensation case has ended and therefore they have a right to fire me and not consider it retaliation.”
Although Valerie was able to return to work, she was still under her doctor’s care and was getting workers’ compensation for her injury. Her claim is still open. Her doctor’s “Return to Work Order” received by the board of directors before she took those three weeks off stipulates that Valerie would have to “stand at will” because she has a bulging disc, she cannot sit for long periods of time working on the computer, and she would have to take breaks throughout the day for the pain to subside.
At this point Valerie doesn’t know if she has a wrongful termination claim.
However, the California “at will” employment policy does not allow employee termination for filing a workers’ compensation claim; Retaliation; Disability; Time off for Family Leave and Medical Leave, among other reasons.
California Labor Code section 132a makes it a misdemeanor for an employer to discriminate in any way, including discharge or threat of discharge, against an employee who has filed or is thinking about filing a workers’ compensation claim, or an employee who has received a workers’ compensation award. The employee who has been discriminated against is entitled to a penalty (not to exceed $10,000), reinstatement, and reimbursement for lost wages and work benefits.
Property Management Firm Hit with California Labor Lawsuit
To that end, a California labor lawsuit has been filed. According to a release from PRWeb Newswire (5/29/13), Lyon Management Group Inc. - a property management enterprise - provides bonus pay and non-discretionary commissions to its workers based on their performance on the job in communities at which the individuals are based. However, according to the California labor lawsuit, the bonus and commissions are not factored in with their regular rate of pay when additional hours above an eight-hour day, or 40-hour week, are logged, for which overtime must be paid according to California labor code.
By not including the bonus pay and commissions, employees are being shortchanged, according to the California and labor law case, which has been filed as a pending class action.
According to the California labor lawsuit, filed May 8 in Orange County Superior Court, Lyon Management Group “failed and still fails to include the commission and bonus compensation as part of the employees’ regular rate of pay for purposes of calculating overtime pay.” Such failure, the complaint continues, “has resulted in a systematic underpayment of overtime compensation” to non-exempt, hourly employees.
According to California labor employment law, only employees working in certain positions, or those who work in management, can be classified as exempt from claiming overtime pay. A popular gambit amongst many employers is to misclassify their employees as exempt from claiming overtime in order to avoid paying same to deserving employees.
However, in this California employee labor law case, the defendant correctly pays its non-exempt employees overtime. The quarrel the plaintiff has with the firm is the alleged failure to include bonus pay and non-discretionary commission with regular pay, for the calculation of overtime. Employees, as such, would be in for a bigger pay packet were the defendant to include all pay - including bonus pay and commissions - prior to calculating overtime.
The California and labor law action alleges that wage statements issued to the plaintiff and other prospective members of the class violate California state labor laws and, specifically, California Labor Code Section 226(a).
The California labor lawsuit is Sullivan v. Lyon Management Group, Case No. 30-2013-00649432-CU-BT-CXC
Fired for Pregnancy against California Labor Law
Business Owner Jailed for California Labor Law Violation
According to the California labor code violation report, Samara was the subject of an investigation a year ago, in January 2012, by the Workers’ Compensation Insurance Fraud Unit. As a result of their investigation, Samara was found to be lacking worker’s compensation insurance for his employees at Tile Gallery Plus.
At his arraignment to face criminal charges in June of last year, Samara duly produced a certificate of insurance, thereby bringing him into compliance with California labor employment law.
However, the California Department of Standards and Labor Enforcement (DSLE) followed up on the file in November and found that Samara’s workers’ compensation coverage had lapsed. In fact, according to the District Attorney’s office, the policy was canceled a month after the accused appeared for his arraignment, due to non-payment of the premium.
According to the report, the DSLE responded to this latest indiscretion by issuing a number of citations for violations against California and labor law, including a “Stop Order,” directing that no employee should physically perform any work at Tile Gallery Plus without a current workers’ compensation policy, in good standing, in place and in force.
Workers’ compensation is required under California state labor laws, and serves to protect the well-being and livelihood of any employee injured on the job or unable to work for any reason. Employers who choose to circumvent the requirement put their employees (and by extension, their workers’ families) at risk, as well as opening themselves up to fines and potential litigation.
California employee labor law is strictly enforced by the Office of the Labor Commissioner for the state of California, as well as the California Department of Standards and Labor Enforcement (DSLE).
HR Getting Personal Spells California Labor Lawsuit?
It all started with a sick day that Karen took last month. Her boyfriend, Bob, was having a heart problem; he’d had a heart attack last year so she wasn’t taking any chances and drove him to the doctor. Now it so happens that Bob works at the same company as Karen did. And the only way that Karen could take the day off - she was honest and told her boss the reason - was if she was a domestic partner.
“I told my manager that Bob and I have lived together since last June but we aren’t married,” Karen says. “He signed my time-off request and I was paid for the day. But I was questioned about it two weeks later.”
Karen’s questioning sounds like it was conducted by the Spanish Inquisition rather than an outside HR consultant. “She told me that she was following the employee handbook policy regarding sick time off,” says Karen. “Then she pointed to her laptop and asked me if I wanted to read the definition of a registered California domestic partner. I replied that I have read it and understand it is more for gays and lesbians so they can get all medical and dental benefits, and other benefits. Then she asked if my boyfriend was still married (he is getting a divorce). I have worked in HR and payroll so I know what can and cannot be asked, and this question was an invasion of privacy.
“I replied that it was none of her business and I also said, ‘I am going to look into the California labor law to determine whether you can ask me that question.’ My manager was there too: they were trying to figure out whether I should have been paid for that day off. Needless to say I went back to my office very upset. They were treating me like I did something wrong, like I was being punished for living with a married man.”
Karen sent an email to her boss, the HR person and the owner of the company, saying that her workplace now felt like a hostile environment. She also said that she liked her job and it wasn’t fair that she was being treated this way.
Karen called the California labor board on her lunch break and asked if they could dock her one day’s pay after signing off. And she asked if personal questions were a violation of the California labor code. “I was advised that I would have a claim against the company if they took time away after signing off,” Karen explains. “Two weeks later, on February 22, I was called into a meeting with my manager, his manager and a different outside HR consultant.
“They fired me as an at-will employee and said it was because of my performance. I have never been written up, my reviews have been perfect, and I have emails from other managers commending me on my work. To top it off, the owner called Bob and told him that they didn’t want him to quit. They want to give him a raise and make him a lead technician.
“In my meeting with the new HR person who showed up to fire me, she asked me to send her my resume so that she could send it out to her network and help me find another job. ‘Why would you fire me and then help me find a job?’ I replied. I think they fired me because of personal reasons, because my boyfriend isn’t divorced yet.
“There is nothing in the Employee Handbook that says employees are not allowed to have relationships with their co-workers. The HR consultant said that I have to be a registered California domestic partner but that isn’t in the handbook, it just says domestic partner and nothing about being registered. It is a little technicality they are using to fire me.
“HR asked me to sign the reason for termination paper. Instead I wrote: ‘I refuse to sign this paper for job performance because it is wrong and this is retaliation.’
“When you get fired for poor job performance in California, that is a reason for non-payment of unemployment benefits. But I filed anyway because they have to prove that my job performance was bad and I know they cannot do that.
“Needless to say, Bob wants to quit. I told him not to because it is a good job for him and if he got a similar job it would mean a two-hour commute. And they are offering him more money because they know they did me wrong.
“Now I am waiting to hear back from the Labor Board. Meanwhile, I also contacted an employment attorney. I don’t wish anything bad for the company owners but I want them to know their manager cannot treat people this way. I want a written apology from her and a statement saying I wasn’t fired because of my job performance. And now I have to explain my situation to potential employers: It sickens me that a manager can treat you this way, that someone can have this much power over you.”
Here is more information about at-will employment and domestic partner information.
Wrongful Termination to Avoid Paying Workers Compensation?
The majority of workers in California are voluntary “at will” employees, meaning that employers have the right to fire or demote an employee for any legal reason without having to provide “just cause” for the action. However, the term “wrongful termination” means that an employer has fired or laid off an employee for illegal reasons. One illegal reason includes firing to avoid paying workers’ compensation. (Another illegal reason is firing in retaliation for seeking workers’ compensation.)
Thomas says he was fired after getting injured - he first had an accident at home and another related injury on the job. “Initially I broke a bone in my left foot and at the same time sprained my right foot at home,” he says. “I took three days off work. About a month later, a co-worker accidentally pushed a dolly toward me as I was unloading a truck. I dodged the dolly and re-injured my sprained right foot.”
As per store policy (Thomas is in sales for a major electronics chain), he wrote an incident report and included the names of his co-worker and the truck driver, both of whom witnessed the incident. Thomas didn’t see the need to get medical attention so he left work and went home. But the next day, he got a call from HR, instructing him to see their doctor.
“Just as I thought, the doctor diagnosed it as a re-sprain, and prescribed pain killers, anti-inflammatory meds and ice packs,” Thomas explains. “He wanted to put a splint on it but I already had an appointment with my primary doctor. He then left the examining room and conferred with HR, came back and said he would wait and see what my doctor was going to do.
“The Workers Compensation claims adjustor called me the next day. She had a report from their doctor that said nothing was wrong with me. How could that be? He wanted to put a splint on my foot and put me on pain meds. Do you think he would give me meds if I wasn’t injured? He didn’t tell her that. I decided that next time I see him I will record his discussion.
“In the meantime, I saw my primary doctor. He examined both my feet and was concerned about me standing - I was on crutches at the time. He took me off the anti-inflammatory meds so I was just on Tylenol 3s. I had a follow-up with the company doctor the following week, and that is when I recorded him. Of course he didn’t know that I was recording his conversation with me because I knew he was lying. I asked him to recount everything he previously told me. I told him that my doctor said I needed at least two weeks off work to heal. He agreed, and I have that on record. “It will be difficult for you to stand on the sprained foot and it will put pressure on your broken foot,” he said and left the examining room again to call HR.
“Then his nurse gave me discharge papers that said I can go back to work. In other words, he contradicted himself. Obviously, he works for the company and not for the employee’s benefit. I went back to work that same day. Strangely, HR called and told me to go home because I was on medical leave (or limited duty) according to my primary doctor.
“HR called me at home again, a few days later. They had my W2 forms and wanted to check my mailing address. To my shock and surprise, I received the forms, my last check and a termination letter, saying I was terminated due to being absent all the time.
“The letter says I was out of work due to this injury and therefore do not qualify for leave of absence. ‘Due to your repeated absence and inability to complete essential functions of the job, we are left with no choice but to terminate your position as sales associate,’ it said.
“My question is that I had been working almost 30 days without anyone complaining, with no reduced hours, no special concessions. I did all the necessary functions of the job up until the negligent incident with my co-worker. They are trying to avoid being liable for me getting hurt on the job. That is why they tried to get their doctor to say I was OK.
“I believe I was terminated so that they could avoid paying Workers Compensation. The incident is recorded on their security camera. They cover every area. They know I was justified if I went forward with a Workers Compensation claim.”
Thomas has been in contact with a California labor law attorney who says that he should file a claim right away. Employees should report work-related injuries and illnesses to their employers immediately, because there may be time limits for filing a workers compensation claim. And if they anticipate any problems with their employer, seek help from an attorney sooner than later.
New California Labor Law Will Aid Breastfeeding Employees
For breastfeeding mothers as well as pediatric health advocates, AB 2386 is good news. But it also signals those in the legal community to be on the alert for potential plaintiffs when employers who prove unaware, or insensitive to the new law discriminate against their breastfeeding employees, in an affront to California labor code.
Breastfeeding continues to see a resurgence in tandem with the widely held belief that a mother's milk remains, ultimately, the best nourishment for an infant. The practice, however, requires letting go of the convenience that comes with formula and either finding a place to latch when duty calls, or a discrete location to express for a lactating mother when her infant is not with her.
Under California labor employment law, there are already provisions in place for breastfeeding mothers. Employers are required to accommodate their employees who are also nursing mothers, by providing them with a discreet location to express or breastfeed, together with the appropriate break time to accomplish the task.
Beyond California and labor law, the new federal health reforms also require employers to accommodate their nursing employees in kind.
What there hasn't been, say those in the legal community, is sufficient recourse for breastfeeding mothers who are discriminated against because of their decision to breastfeed. An example of this was a labor lawsuit filed in US Court for the Southern District of Texas. In Equal Employment Opportunity Commission v. Houston Funding II, the Court ruled that the plaintiff's loss of her job allegedly due to her breastfeeding or lactation was not sex discrimination.
The most recent change to California labor employment law, which takes effect in January, addresses that concern.
AB 2386 effectively amends the statutory definition of sex under the California Fair Employment and Housing Act in an effort to prevent discrimination against a breastfeeding mother in the workplace under California employee labor law. While employers are obligated to continue the practice of accommodating breastfeeding women as they have, the updated statute deepens the importance of employers not to be seen as discriminating against a breastfeeding employee in any way.
Under California state labor laws, as of January 1, 2013 nursing mothers have new protections. Any employer seen as discriminating against a breastfeeding employee may well be closer to a California labor lawsuit with AB 2386 in place.
ERISA Not Just About Protecting Investments
employee stock plans, the truth is that ERISA covers much more than retirement plans. Included in ERISA benefits are insurance provided through an employer, meaning that any claims about employer-provided insurance are covered by ERISA.
Covered by the Employee Retirement Income Security Act of 1974 (ERISA) are retirement, health, life insurance, and disability insurance plans. Covering only private employers, ERISA does not require employers to provide health insurance or other benefits plans; it simply sets out rules for when employers choose to offer such benefits. If employers choose not to offer benefits as covered by ERISA, they are not governed by ERISA rules. Furthermore, ERISA does not cover insurance policies that are purchased privately. It only covers those provided by an employer.
Under ERISA, those in charge of health plans and other benefits must provide information about the plan's funding and features, must abide by their fiduciary responsibilities and must provide an appeals process for people who have a grievance with their plans. Finally, ERISA gives participants the right to sue plan fiduciaries in cases where there is a breach of fiduciary duty.
Before a lawsuit can be filed, however, under ERISA the claimant must exhaust administrative remedies before filing a lawsuit. This means that if the insurance company has an internal appeals process, the claimant must file an appeal before filing a lawsuit, if the insurance policy in question is provided by the employer (private insurance, because it is not covered by ERISA, does not have such a requirement and a lawsuit can be filed once the first denial is received.)
Many insurance companies have rules for filing appeals, including a set time in which to file. Certain medical records and an appeal letter may also be required. If that appeal is then denied, a lawsuit can be filed to enforce the claimant's rights. A plan beneficiary or participant can file the lawsuit, depending on the circumstances, and the lawsuit is typically filed against the plan fiduciary or administrator.
It is important to note that under ERISA a claimant will not be awarded punitive damages; all that can be claimed are costs associated with the insurance policy.
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California Labor Lawsuits Allege Failure to Pay Minimum Wage, Discrimination
One California labor lawsuit was filed by the EEOC against a security services company, alleging discrimination after a woman was denied her job when she tried to return from maternity leave. The employee reportedly worked at the company for a year prior to her maternity leave but was told there was no job for her when she tried to return. The company allegedly told the employee they would contact her if a position opened up, but failed to do so even though the company hired men as security guards just after the employee attempted to return to her employment.
The lawsuit was filed in the US District Court for the Eastern District of California and alleges the security company violated Title VII of the 1964 Civil Rights Act.
Meanwhile, a farm contractor reportedly faces a million dollar California labor lawsuit alleging the contractor violated California labor law by failing to pay minimum wage and overtime to workers. According to California Labor Commissioner Julie A. Su, the defendant, Salvador Zavala Chavez dba Zavala Farms, did not pay minimum wage or overtime to approximately 150 employees over 10 locations from April 1, 2009 to April 1, 2012. Workers allegedly picked lettuce and worked in grape fields for 10-hour workdays without being properly paid for their time.
The lawsuit was filed after an investigation was conducted by the California Department of Industrial Relations' Division of Labor Standards Enforcement. The investigation reportedly found evidence that Zavala Farms acted willfully in violating the California labor law. The lawsuit seeks $1.26 million in unpaid wages, overtime and penalties.
And Hollywood interns have filed a lawsuit of their own against Fox Searchlight and other employers, alleging they should have been paid for their work for Hollywood studios. Although interns have long been accepted as standard practice in Hollywood, interns at for-profit employers should be paid for their work. The lawsuit seeks class action status on behalf of other interns who were not paid for their time working for Hollywood studios.
LoJack Corp. Agrees to $8.1 Million Settlement in California Labor Law Class Actions
The actions, which have been contested since 2006, alleged LoJack violated labor laws in the state, as well as various tenets of California labor code pertaining to commute time, meal breaks and rest periods, according to the Boston Business Journal (10/18/12).
Law 360 noted that plaintiffs alleged they were required to repair company vehicles while they were on shift, incurring various costs in the process.
California labor employment law reflects strict guidelines governing how and when employees should be paid, and for what. While there are various exemptions for overtime and other issues relating to a particular job classification, there has nonetheless been various examples of discord pitting employee against employer over exemptions, expenses, meal breaks and rest periods which remain entrenched in California and labor law.
The proposed settlement??"which still requires court approval??"is valued at $8.1 million. President and CEO of LoJack Randy L. Oritz noted in a statement appearing in various publications that while LoJack held it had "substantial legal and factual defenses to the plaintiff's claims," in the end LoJack's leadership team and Board of Directors decided, ultimately, that entering into a settlement was in the best interests of the company.
"These legal claims were originally filed in 2006, and plaintiffs asserted claims reaching back to 2002," Ortiz said. "Since then the cases have involved a significant amount of time and expense on pleadings, motions, depositions, and discovery in various state and federal courts. The cases have also required us to look at employment practices of the distant past rather than focus entirely on our present and continuing commitment to the welfare of our employees, the success of our dealer partners and licensees and the strength of our brand."
LoJack is identified as a manufacturer of vehicle-tracking systems. The settlement, putting to bed the twin California labor lawsuits and assuming approval by a judge with the California Superior Court, is widely expected to take care of applicable legal fees incurred by the plaintiffs.
The settlement decision related to the California labor law case isn't expected until the New Year. According to the Boston Business Journal, LoJack expects to record a one-time charge of $6.9 million for their third quarter (Q3) that ended September 30th. Even though $8.1 million was the agreed amount, LoJack may get away with paying less depending upon the final number of class participants.
Had the defendant continued with the two California employee labor law class actions, LoJack estimates it could have cost the company upwards of $30 million. By settling, LoJack not only cuts its potential losses substantially, it also is not required to admit to having done anything wrong…
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