Business & Office News
California Labor Compliance Lawsuit Expected to Settle for $2.75 Million
San Francisco, CA: Communications giant AT&T has been battling a compliance lawsuit for some time, defending itself against plaintiffs in a nationwide FLSA collective alleging AT&T misclassified them as independent contractors and thus, stiffed them out of overtime.
The slight is deemed a violation of the Fair Labor Standards Act (FSLA). The employees’ rights lawsuit is Wendell Walton et al. v. AT&T Services Inc., Case No. 3:15-cv-03653, in the US District Court for the Northern District of California.
Walton is one of two lead plaintiffs in the compliance lawsuit brought as a class action by corporate training managers whose primary responsibility is instructing AT&T employees on corporate policies and related policies associated with vendors. Co-plaintiff in the class action lawsuit, identified as Michael Mantonya, joined Walton in accusing AT&T of incorrectly and unjustly classifying them as independent contractors.
Plaintiffs allege they are proper employees of AT&T and thus, should receive all employee rights and benefits under FLSA and California labor law, including the payment of overtime for all hours worked beyond an eight-hour day, and/or a 40-hour week.
The independent contractor sector has become a popular resource for firms attempting to hold the line on their employee pool, and to save on overtime costs and other liabilities related to employee benefits. However, there are marked differences in the conduct and environment when comparing independent contractors against bone fide employees.
The major difference, beyond the obvious absence of overtime pay, perks and other benefits normally the jurisdiction of the employee, is the service that an independent contractor provides to the client according to an agreed set of parameters. Beyond that, provided the independent contractor meets contractual objectives, the contractor provides service independently without direct and ongoing supervision from the client.
Many a compliance lawsuit has gone to the plaintiffs amidst evidence that employees miscast as independent contractors are routinely supervised and work within an environment and a structure that carry all the hallmarks or an employer-employee relationship, rather than the arms-length backdrop when working with – rather than directly employing – and independent contractor.
The plaintiffs in the case reached a settlement with AT&T and have formally requested the settlement valued at $2.75 million receive judicial approval. AT&T is also recommending the settlement be approved, while admitting to no wrongdoing.
A spokesperson representing AT&T said in an emailed statement to Law360 (09/29/17) that “we’re committed to full compliance with all federal and state laws, including the wage and hour laws, and have received numerous awards for being an employer of choice,” said Marty Richter. “Rather than engage in drawn-out litigation we have entered this settlement, which we believe reflects a fair resolution.”
The plaintiffs also feel the settlement is fair and has merit. According to Court documents, “settlement now saves class members significant risk of no recovery, the cost of individual litigation, and the delay inherent in further litigation and possible appeals,” the plaintiffs said through their employees’ rights lawyer. “The litigation is highly complex, both procedurally and substantively,” the complaint said. “Further litigation could easily last several more years and investment of hundreds of thousands of dollars more in costs, and a million dollars or more of attorney time.”
It was in September of last year that US District Court Judge Vince Chhabria granted conditional certification to a nationwide FLSA collective.
Plaintiff Alleging Wrongful Termination, Discrimination Agrees to Arbitration
Los Angeles, CA: A former player representative with a sports agency who brought a wrongful termination lawsuit against her former employer has agreed to participate in arbitration instead after the defendant introduced a motion to compel arbitration. Plaintiff Joyce Li, in Court documents, said she would not oppose arbitration, and the motion was granted (Joyce Li v. Independent Sports & Entertainment LLC, Case No. BC660219, in the Superior Court of the State of California for the County of Los Angeles).
Li had filed a lawsuit citing wrongful termination against her former employer, Independent Sports & Entertainment LLC (ISE), an agency that represents professional athletes. Hired in 2013, Li alleges she was performing similar work as her male counterparts, but did not enjoy equal pay or other advantages of her position as director of operations for the basketball division of ISE.
Unlike her male counterparts, the plaintiff asserts, Li was denied any opportunity to participate in fee splits or bonuses associated with the NBA (National Basketball Association) contracts negotiated by the agency. “The basketball division continued to generate significant income for the company because of the NBA clients, several of whom LI personally managed, essentially performing the same work as many other male agents in the division,” Li stated in her wrongful termination lawsuit.
Li noted that she had acted as agent for, and managed other NBA players before joining ISE and undertook ‘agent’ duties at ISE but was denied the job title of ‘agent,’ and comparable remuneration to that of her male colleagues.
Li also asserts she was subject to gender discrimination. In her claim, Li noted that she drew heat for violation of a purported dress code by wearing mid-thigh-length shorts in the work environment, while her male counterparts were not reprimanded for wearing shorts, T-shirts and other casual wear in the office.
Her tenure with ISE came to an end in December, 2016 when Li was told she was no longer needed, as she lacked any direct clients of her own.
Li had originally sought a jury trial when she filed her wrongful termination lawsuit in May. However, ISE said in a July filing with the Court that Li had signed an arbitration agreement when she was hired, and thus petitioned the Court to compel arbitration.
Earlier this month, Li informed the Court she would not oppose arbitration. The defendants petition to compel arbitration was formally granted by Los Angeles County Superior Court Judge Teresa A. Beaudet September 21.
In a related matter, the Toni J. Jaramilla law firm announced it intends to initiate a separate, representative action under California’s Private Attorney General Act against the agency on behalf of all of female employees of ISE, alleging pay discrimination based on gender.
Jaramilla represents Li in her wrongful termination lawsuit.
“I believe it’s a rampant problem in the sports agency industry and particularly at ISE,” Jaramilla said during a phone interview with Law360 (09/21/17). “Women are not given the title of agents and that allows them to pay them less than men.”
Proposition 209 was initiated as an amendment to the California Constitution in 1996 that prohibits public institutions from discriminating on the basis of race, sex, or ethnicity. As such, Proposition 209 would not cover Li as ISE is a private firm. However, there is recourse for Li under Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of gender for employers with a staff compliment of at least 15.
California Wage & Hour Lawsuit Settles for $5 Million, but Some Remain Unhappy
San Francisco Bay, CA: A California wage and hour lawsuit alleging exotic dancers toiling in the Bay area were underpaid, has been settled after a US District Court Judge earlier this month granted her approval to the $5 million settlement.
However, the settlement was not without its detractors, including some members of the class who formally objected to the settlement, characterizing it as ‘a pittance.’
The wage & hour lawsuit is Roe et al. v. SFBSC Management LLC et al., Case No. 14-cv-03616, in the US District Court for the Northern District of California.
The lawsuit was launched as a putative class action in August, 2014 by a collective of dancers alleging wage and hour violations against SFBSC Management LLC, an enterprise managing strip clubs in the Bay area of San Francisco. Plaintiffs accuse SFBSC of improperly classifying dancers as independent contractors, thus cheating them out of fair wages and overtime that would otherwise be their due as bone fide employees of SFBSC.
One of the class representatives in the wage & hour lawsuit appeared before US Magistrate Judge Laurel Beeler to express her concern with the settlement.
“I’m here today in part because I do think [the settlement is] unfair to dancers who don’t know their options, and I’m one of the few who does, and I think it’s a responsibility of people with more privilege to speak up,” said dancer Poohrawn Mehraban, who identified herself as a student at UC Berkeley and a stripper for about four years. “We’re an easily exploited demographic. Most of us are young and largely uneducated…”
Mehraban, who filed her own lawsuit September 12 with the help of her wage & hour lawyer, appeared before Beeler two days later, on September 14.
“My largest concern is that this would set precedent for dancers who don’t bring cases to court, and for the community, this will just confirm that the rumors are true: the law is never on your side.”
Mehraban also suggested that prior to becoming involved in the wage & hour lawsuit, she had heard from other dancers having brought wage & hour claims, and had been told that “it wasn’t worth it.”
As noted above, two days prior to her appearance before Magistrate Beeler, Mehraban filed her own lawsuit against Gold Club SF LLC, alleging that she had been let go from her job due to her participation in the putative class action. That case is Mehraban v. Gold Club SF LLC, Case No. 3:17-cv-05288, in the US District Court for the Northern District of California.
The proposed settlement, according to Mehraban’s wage and hour lawyer, contains various provisions and would also provide class participants with up to $800 in relief.
However attorney Shannon Liss-Riordan of Lichten & Liss-Riordan PC, characterized the settlement, on behalf of Mehraban and other objectors to the settlement, as inadequate – estimating dancers at two, of the nine clubs named in the suit should be entitled to $40 million in damages, thus damages for the entire proposed class would likely exceed $100 million.
The objectors also noted that some dancers have historically received larger payouts after their claims were individually arbitrated (ironically, SFBSC had put forward a motion to compel arbitration, but the motion was denied on grounds of unconscionability). Objectors also cited multiple deals in various other jurisdictions that succeeded in resolutions that saw class members who were also exotic dancers receive upwards of $17,000 each in restitution.
Undaunted by the objectors’ positions, Beeler approved the $5 million wage & hour settlement, for which the parties involved filed motions for preliminary approval this past March. The settlement provides up to $2 million in cash payments for hours worked by 4,681 dancers, $1 million for an alternate “dance fee payment” compensation program that pays a per-performance cost, and fees for plaintiffs’ attorneys that are to be capped at $1 million.
As part of the settlement, the defendants agreed to change their business practices so that dancers can opt to be either employees or independent professional entertainers, according to their own choosing. Dancers who opt in to the putative class action agree to release any wage and hour claims brought under the Fair Labor Standards Act.
The defendants in two more recent cases were added, back in March, when the plaintiffs in the putative class action wage & hour lawsuit amended their complaint to include the nightclubs named in the most recent lawsuits.
Those cases, as reported by Law 360 (09/14/17) are Hughes v. S.A.W. Entertainment Ltd., Case No. 3:16-cv-03371, and Pera et al. v. Saw Entertainment Ltd., Case No. 3:17-cv-00138, in the US District Court for the Northern District of California.
Apple Inc. Ordered to Pay $2 Million to Settle Lawsuit over Pay, Meal and Rest Periods
San Diego, CA: A lawsuit that appeared to fly under the radar last year in spite of involving what is considered one of the largest corporations in the world, resulted in an order for Apple Inc. to pay $2 million to class participants in a class action lawsuit alleging missed meal breaks, rest periods and failure to pay employees in a timely manner. Meal breaks and rest periods are mandated by California law as a means to ensure employees are well rested and nourished, and not overcome by working too many hours at a time without pause for food and rest, potentially leading to an unsafe situation. The California Division of Labor Enforcement is one such branch of the California legislative authority mandating employers, small and large, to look out for the rights, and wellbeing of their employees.
According to an online report by CNN tech (12/15/16), the lawsuit was filed in 2011 by four individuals employed by Apple in San Diego.
Plaintiffs were identified as Joseph Lane Carco, Ramsey Hawkins, Ryan Goldman and Brandon Felczer, the latter serving as the lead plaintiff in what evolved to a class action lawsuit when the case was granted class certification in 2013 (Felczer et al v. Apple Inc., Case No. 37-2011-00102593, in the Superior Court of the State of California, San Diego).
The plaintiffs asserted that Apple denied them of their rights as entrenched in California labor law. Those statutes require that employers provide hourly workers a 30 minute meal period when toiling more than five hours a day. Employers are also required to provide 10 minute rest breaks for every four hours worked.
Plaintiffs asserted that Apple dropped the ball on this, although CNN tech noted that Apple made changes to their scheduling policy in 2012 – the year after the lawsuit was initially brought, and the year before the lawsuit was certified as a class action.
According to the Court record associated with the lawsuit, Apple also stood accused of “failure to furnish accurate itemized wage statements, and failure to timely pay wages on the end of employment,” amongst other allegations.
California observes strict guidelines as to when employees are to receive their final wages, according to provisions in California Labor Code Sections 201, 201.5, 202, 208, and 227.3 amongst others applicable to various situations.
To the allegation of failure to timely pay wages at the end of employment, Court documents show that lead plaintiff Felczer ended his employment with Apple on November 23, 2011. Felczer, according to documents, provided more than 72 hours advance notice as to when he intended to end his association with the employer. It should be noted that in California, there is no requirement for an employee to provide advance notice of intent to leave a job.
The lawsuit noted that Felczer was provided with his final check two days after ending his employment, with said check provided November 25, 2011. California Labor Code Section 202 requires that an employee who gives at least 72 hours’ notice and leaves on the day noted in his resignation, must receive all final wages on that day.
Four days after that, on November 29, Apple was accused of paying Felczer an inadequate amount of waiting time penalties.
There were other examples of alleged delays over issuing final wages. Plaintiff Carco, according to Court documents, resigned from Apple’s employ on, or about June 20, 2008. Court documents associated with the lawsuit suggest Carco did not receive his final paycheck until July 1 of that year. California Labor Code Section 202 stipulates that employees who don’t give advance notice must receive their final wages within 72 hours.
Plaintiff Goldman’s employment was terminated by Apple on January 11, 2011. The lawsuit asserts Goldman’s final check was not drafted until February 4, 2011 and not received by the plaintiff until February 7 of that year. According to California Labor Code Sections 201 and 227.3, “an employee who is discharged must be paid all of his or her wages, including accrued vacation, immediately at the time of termination.”
CNN tech reported that Apple did not immediately respond to a request for comment.
The Division of Occupational Safety and Health for the State of California is but one example of State governance with a mandate to keep employees safe, and to maintain a healthy work environment that doesn’t put the employee at undue risk under Title Eight of the California Code of Regulations.
However, the arm of governance which enforces areas such as meal breaks and rest periods falls under the mandate of the Division of Labor Standards Enforcement (DLSE), under the umbrella of the Office of the California Labor Commissioner. To that end, DLSE regulations cover areas of workplace law that are not site-specific, such as access to rest periods and meal breaks, and wage and hour issues.
The lawsuit was centered on issues within the jurisdiction of DLSE.
AB 450 to Further Protect the Undocumented Worker, Awaits Governor’s Pen
Sacramento, CA: The undocumented worker in California, fearful of becoming ensnared in the grasp of US Immigration and Customs Enforcement (ICE), would be cheered with the knowledge that new legislation aimed at additional protections has cleared the California legislature.
The Immigrant Worker Protection Act has moved to the desk of Governor Jerry Brown, for signing into law.
The Trump Administration’s stated efforts to verify legal immigrants while identifying undocumented workers amidst a threat of deportation, provides a unique challenge for California given the State’s reliance on undocumented workers for the agriculture industry, along with other sectors of the economy that combines to comprise ten percent of the State’s workforce.
Already progressive in levelling the field in terms of fairness for the undocumented worker, State legislators have been seeking ways to further bolster protections for undocumented workers since the Trump Administration came into power in January.
To that end, the Immigrant Worker Protection Act puts the onus on employers to run interference for the undocumented worker when ICE comes calling. As written, The Act would require employers to require federal agents seeking to speak to, or access undocumented workers to provide a judicial warrant before they are allowed to access worksites. The Act would also prevent the employer from sharing sensitive and confidential information, such as Social Security numbers, without a subpoena.
Employers would also be required to notify employees ahead of any government audit of employee records, to a minimum of 72 hours advance warning.
The Office of State Assemblyman David Chiu, the Democrat who sponsored AB 450, notes the new legislation would also require that the employee is duly provided with the results of any federal audit.
“In an environment of division and fear, California must continue to defend its workers, to guard its values and to ensure that its laws protect all of our residents,” said Chiu in a statement. “[The bill] declares California’s determination to protect our economy and the people who are working hard to contribute to our communities and raise their families in dignity.”
The Immigrant Worker Protection Act also has the backing of the Service Employees International Union, United Service Workers West. “Immigrants pick our crops, prepare our meals, care for our children and elders, and clean our buildings,” said David Huerta, the union’s president, in a statement. “Immigrants are woven tightly into the fabric of California's workplaces, economy, and daily lives.”
In the end, there is little an employer can do to prevent officials with ICE from pursuing an undocumented worker and determining his or her status. That said the legislative-sanctioned Act, which now awaits the Governor’s endorsement, would require that proper procedures and protocols are in place in order to provide as level a playing field as is possible, given the times.
Rite Aid Appeals $8.7 Million Award in Discrimination and Harassment Lawsuit
Los Angeles, CA: A defendant continuing to fight a damages award totaling $8.7 million in a California wrongful termination and harassment case appeared before a California appellate panel last month asking the Court to discard the award based on their claim that the trial judge prejudicially excluded evidence demonstrating legitimate, nondiscriminatory grounds for terminating the plaintiff from his job.
Rite Aid Corp. also opined that not only is alleged discrimination and harassment against the plaintiff on the part of senior managers baseless, but notes compiled by Rite Aid’s Human Resources (HR) manager showing the plaintiff was himself a purveyor of an abrasive management style were not allowed as evidence at trial.
Rite Aid asserts had those notes been deemed admissible, it would paint a very different picture of the plaintiff, Robert Leggins.
Attorneys for the plaintiff do not share that view.
The case is Robert Leggins v. Rite Aid Corp., Case No, B267434, in the Court of Appeal of the State of California for the Second Appellate District. Plaintiff Leggins had been employed by Thrifty PayLess Inc. since 1985, according to Court documents, where he served at one time as a store manager. Rite Aid purchased Thrifty Payless Inc. in 1996.
Leggins, in his lawsuit, noted how he had been injured in a robbery at his store in 2007, after which he required several surgical procedures. In spite of his injuries, Leggins asserts he was made by senior managers to undertake hard, manual labor. Leggins also contends he was mocked and harassed over his injury.
At some later time when he made a request to a new district manager for a transfer to a smaller store in a better neighborhood in order to lessen the stress and strain on his injured neck, Leggins purports the district manager responded with an assertion that people of color are given to complaining.
Leggins asserted he endured continued insults, harassment and discrimination over his injury – and his race – and further complained that reports of such conduct he made to persons higher up in the corporate chain were met with no response.
After he closed his store early on New Years’ Day in 2013, Leggins asserts he was fired. Rite Aid indicated the early closing was contrary to store policy, although Leggins countered he had been given permission for the early closing some two months prior. The plaintiff also asserted he had closed the store early on the holiday for some years, without any comment or reprisal from his superiors.
Leggings launched a discrimination and harassment lawsuit alleging wrongful termination, and after a six-day trial in 2015 the jury in the case awarded the plaintiff $3.7 million for lost wages and other losses, together with $5 million in punitive damages.
The jury found in the plaintiff’s favor on his claims of harassment over his injury, but did not find that Rite Aid managers had discriminated against him over his race.
According to Court documents, Rite Aid immediately, and on two occasions filed post-trial petitions to reduce, or vacate the verdict. That was in September, 2015 – about two months after the jury delivered its verdict.
Rite Aid subsequently appealed the verdict to the Court of Appeal of the State of California for the Second Appellate District, noting in their motions last month that the trial judge erred in not allowing evidence that would have shown Leggins as someone who could be abrasive and harassing towards others. Rite Aid noted that information compiled by an HR manager included complaints that Leggins “created conflict” amongst fellow workers, among other claims.
Rite Aid asserts that the HR notes on Leggins should have been presented at trial.
Leggins’ legal representatives disagreed with the defendant’s suggestions of a miscarriage of justice.
He was originally awarded a total of $8,769,128 in damages.
In the Wake of Natural Disasters, Employers Urged to Have Empathy
Sacramento, CA: The devastation to Texas, and in particular Houston in the wake of Hurricane Harvey together with the death and destruction wrought by Hurricane Irma serves as a reminder to all employers that hardship which follows such a disaster can trigger a request for leave under the Family and Medical Leave Act (FMLA). And while California is not generally exposed to the ferocity of hurricanes, other disasters such as droughts and wildfires can lead to crises and hardship equally horrific.
With the one-two punch of Harvey and Irma still fresh, advocates are reminding employers of their responsibility, together with the need for compassion when an employee requests time off to deal with a very real crisis. While employers are not obligated to allow an employee time off to deal with, say, a flooded basement – at the same time there is an obligation to take seriously most requests for time off in the wake of a major disaster, such as a hurricane, serious flooding or wildfires.
To that end, many employees may have family members, such as elderly parents, who may require their assistance when disaster strikes. In fact, experts conversant with the federal FMLA suggest that requests for FMLA leave are quite common following a natural disaster.
The Family and Medical Leave Act provides, for most private and federal employees, as much as 12 weeks of leave. The California Family Rights Act, or CFRA, mirrors the federal FMLA in most respects, the major difference being that CFRA provides paid leave, whereas the FMLA does not.
In the wake of a natural disaster, employees may seek to book time off to care for their own, or close family members. Medical issues can arise in the wake of a serious disaster, especially for the elderly. Mental health issues triggered from the sudden loss of one’s home, for example, can affect everyone – even children. Emotional trauma in the aftermath of a serious disaster, including heightened stress associated with cleanup and rehabilitation of one’s home, would qualify an employee for FMLA or CFRA leave if he, or she are “unable to perform the essential functions” of their jobs.
What’s more, elderly parents dealing with an extended period of lost power in the wake of a disaster could be a situation where an employee qualifies for FMLA leave in order to assist the elderly family members. There may be ongoing medical conditions, treatment for which may require a constant source of power. Are they eating spoiled food because the fridge is off? Are they dehydrated, or overheated because there is no electricity to power the AC?
There will be those employees who will try to take advantage of a serious situation and apply for FMLA leave where it’s not warranted, but those situations in the wake of a disaster as serious as Harvey or Irma will be in the minority. Overall, the takeaway message according to FMLA experts is to treat every request seriously, and maintain empathy for employees requesting leave.
An employer, who treats an otherwise legitimate request for FMLA leave within the context of a serious disaster, could face an FMLA lawsuit going forward if legitimate leave is denied – or if the process of securing FMLA or CFRA leave proves adversarial and adds to the stress an employee is already under.
It’s also important for employers to remember that should an employer have to close shop for a period of time in the wake of a serious natural disaster, employees should not be charged FMLA leave during that time.
It’s been 41 years since a hurricane had any major effect on the state. On September 10 and 11, 1976 Hurricane Kathleen crossed the Baja and moved into California as a tropical storm, with southeastern California sustaining major damage from rainfall and flooding. Three people died.
In more recent years, serious droughts have fostered wildfires, which are a more common threat than hurricanes in the Pacific region. Whatever the persona of a natural disaster, Californians can suffer serious adverse effects. The sage counsel now being extended to employers in Houston, Texas and throughout southwest Florida right now is to manage FMLA requests with empathy.
All Eyes on Google over Allegations of Compliance, Discrimination
Mountain View, CA: An administrative compliance lawsuit brought against Google Inc. by the US Department of Labor’s Office of the Federal Contract Compliance Programs (OFCCP) has fostered interest in a potential employee’s rights lawsuit on behalf of some 70 current and former employees of the search engine juggernaut alleging wage discrimination. The employees, all of whom are women, are reportedly pursuing a potential class action lawsuit.
According to court documents, the potential class action plaintiffs allege that Google paid them less than men for doing similar work. The employee rights lawyer, to whom the women have been talking, indicates that the facts thus far support bringing an employee’s rights lawsuit against Google.
The trouble began when Google was targeted by the OFCCP for an equal opportunity compliance audit. Such audits are mandatory when corporations supply services to the US Government. Google is such a supplier.
The OFCCP has been embroiled in a bitter administrative battle with Google over the submission of compliance data. Google submitted some data, which the OFCCP found inadequate. When the OFCCP requested additional employee compensation data and Google dragged its heels, the regulator launched an administrative compliance lawsuit against Google in an attempt at forcing Google to hand over the required documentation.
Google countered that it would be too costly to break out additional data, and that data already obtained by the OFCCP and other data that was a matter of public record was more than sufficient for the purposes of the mandatory audit.
The employee rights lawyer with whom the 70 women are talking is James Finberg of Altshuler Berzon LLP, a law firm based in San Francisco. “We saw the DOL was investigating. I got the transcripts from the hearings in that case, which are fascinating,” Finberg said, in a statement to Law 360. “I mean, the DOL did statistical analysis of Google’s Mountain View, [California] headquarters and found statistically significant disparities adverse to women across the board, so we said, ‘Wow, that’s a bad thing.’”
Meanwhile, The New York Times (08/07/17) reported last month that a Google employee, who authored a scathing and divisive internal memo with regard to Google’s efforts at compliance and diversity, had been fired. James Damore had claimed that women who worked at Google were less likely to succeed in technical positions due to biological differences, rather than gender discrimination. His memo, entitled ‘Google’s Ideological Echo Chamber,’ angered many in Silicon Valley, The New York Times reported, because the memo relied on certain gender stereotypes to rationalize the gender gap in the tech sector.
Damore, employed at Google as a software engineer since 2013, was fired over the memo. Damore told The New York Times that he had written the document with the hope towards having an “honest discussion” about how Google harbored intolerance for ideologies that don’t fit into what Damore believed were its left-leaning biases.
The Chief Executive for Google, Sundar Pichai, said in a blog post that he supports the right for employees to express themselves but that Damore’s internal memo went too far. Damore was relieved of his duties a month ago.
“I have a legal right to express my concerns about the terms and conditions of my working environment and to bring up potentially illegal behavior, which is what my document does,” Damore told The New York Times.
Danore has since retained a California-based law firm and is seeking other would-be plaintiffs for a potential lawsuit accusing Google of discrimination against workers because of their political views.
According to Law 360 Damore filed a charge with the National Labor Relations Board against Google parent Alphabet Inc. purportedly just before he was fired. In his complaint, Damore charges that Google interfered with, and restrained his right to engage in “protected, concerted activity” under Section 7 of the National Labor Relations Act by threatening him with unspecified reprisals.
An investigation is now underway by the Dhillon Law Group Inc., the firm retained by Damore. Google spokesman Ty Sheppard responded last month to the Dhillon Law Firm’s investigation by saying the company has “strong policies against retaliation, harassment and discrimination in the workplace” and “also strongly support[s] the right of Googlers [sic] to express themselves,” Sheppard said in a statement.
“An important part of our culture is lively debate,” Sheppard continued, in comments appearing in Law 360. “But like any workplace that doesn’t mean that anything goes.”
Whether it is the Damore case, or the case of 70 women alleging wage discrimination – or the compliance issues asserted against Google by the OFCCP, all eyes will be on Google in the coming months.
Edison International ERISA Lawsuit Finally Settles for $7.5 Million in California
Riverside, CA: Administrators of a retirement plan that invested in higher-cost funds than less-expensive funds on behalf of plan participants breached their fiduciary duties under the Employment Retirement Income Security Act (ERISA, as amended 1974), or so it was alleged. Primary defendant Edison International will pay $7.5 million in damages in a settlement agreement that received judicial acceptance this past August 17.
Defined retirement plans under ERISA require that those tasked with managing, and administering retirement plans on behalf of plan participants do so with the best interests of plan members first and foremost in every decision made on their behalf.
According to an ERISA lawsuit brought by disgruntled members of the plan, administrators failed to do so.
Court documents revealed that administrators of the retirement plan were tasked with undertaking investments according to their fiduciary duties to employees of Midwest Generation LLC, a subsidiary of Edison Mission Group Inc. – all of which fall under the umbrella of Edison International.
Court heard that fiduciaries purchased shares in no fewer than 17 mutual funds on behalf of plan members for their 401(k) retirement plans. However, it was revealed that of two classes of shares available to be purchased by fiduciaries on behalf of plan members, the more expensive retail class of funds were purchased, rather than shares rated under an institutional class that also come at a reduced cost.
Thus, the costs were higher and not in the best interest of plan members, or so it was alleged by class participants in the class action ERISA lawsuit against Edison.
Edison countered that buying retail class shares afforded an opportunity for revenue sharing, which in turn afforded Edison the means to offset administrative fees. The defendant also declared that the act of notifying plan participants that revenue sharing was available translated to implied permission to purchase the more expensive shares.
The Court however would have none of it. “The court finds that no prudent fiduciary would purposefully invest in higher cost retail shares out of an unsubstantiated and speculative fear that if the plan settlor were to pay more administrative costs it may reallocate all such costs to plan participants,” wrote US District Judge Stephen V. Wilson, who found that defendant Edison International had breached its fiduciary duties under ERISA and as such were liable for the actual loss in excessive fees.
The agreed damages of $7.5 million represent the period between 2001 and January 2011. Damages from 2011 to present day would be calculated according to the overall returns of the retirement plan.
The complex ERISA lawsuit was originally filed ten years ago, in 2007. The named plaintiff in the ERISA lawsuit is Glenn Tibble.
Edison and co-defendant Southern California Edison said in a statement that “the funds in question have not been part of the offerings for employees since 2011 and the litigation has not raised any questions regarding the appropriateness of the current portfolio of funds,” the statement said. “Edison International and Southern California Edison understand the importance of their 401(k) plan to employees’ retirement goals. We have consistently provided a wide array of high-quality investment options in the 401(k) plan.”
The case is Glenn Tibble et al. v. Edison International et al., Case No. 2:07-cv-05359, in the US District Court for the Central District of California.
California Wage & Hour Lawsuit Settles for $3.5 Million
Los Angeles, CA: A previously-negotiated California wage & hour settlement worth $3.5 million between clothier Ann Inc. and over 8,000 participants in a class action lawsuit was granted final approval earlier this month by a California Superior Court judge. The approval brings an end to litigation asserting unpaid wages and missed meal breaks.
Ann Inc. was named in the wage and hour lawsuit along with AnnTaylor Retail Inc. Ann Taylor is a well-known clothier that became the subject of litigation in December, 2015 when named plaintiff Steve Linares accused the defendants of various wage and hour violations under California wage & hour laws. Alleged violations included shorting workers on overtime, failure to meet minimum wage requirements, failures to provide rest and meal breaks, and failure to pay final wages in a timely fashion when an employee was terminated from their job.
Linares was employed at a Los Angeles Ann Taylor Factory store from October 2011 through October, 2013 – a period of two years. The retail location where Linares was based is one of about 80 Ann Taylor retail locations throughout the State of California, according to Court records. The clothing retailer also has a national presence.
The $3.5 million settlement was afforded preliminary approval this past March by Los Angeles Superior Court Judge John Shepard Wiley. At the time, Judge Wiley noted that with over 8,150 class members the average individual payout after legal fees and expenses would be about $300 – but the judge indicated at the time that the amount was fair.
He echoed those comments earlier this month when granting the wage & hour settlement final approval. Judge Wiley, however, did have questions about requests for enhanced payments for lead plaintiff Linares and another class representative, identified as Jeanette Barlow. The requests were made in respect to work the two plaintiffs claimed to have performed on the file in concert with the primary wage & hour lawyer and other members of the legal team.
Judge Wiley took issue with the amounts requested: $10,000 and $7,500 respectively, indicating that neither declaration from Linares or Barlow with regard to their work on the file adequately informed the Court as to how Linares and Barlow were impacted by their involvement in the litigation. The judge characterized the declarations as ‘bare-bones’ with each containing similar language and identical footnotes and, “I didn’t get any sense of genuine personal commitment or actual risk that either class rep encountered,” he said in his ruling.
In the end, Judge Wiley approved reduced payments: Linares and Barlow will receive $5,000 each. “These were boilerplate, lawyer-drafted declarations. That’s one of the problems,” the judge said. “The other problem is I also don’t see anything extraordinary that would justify an extra award to them.”
The California wage & hour lawsuit is Steven Linares v. Ann Inc. et al., Case No. BC605635, in the Superior Court of the State of California for the County of Los Angeles.
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