Compliance News
Where Are California Labor Laws When You Need Them?
A few months ago, Casandra thought she was coming down with the flu and called in sick. She took a day off work, and that night she told her General Manager - by text message - she was getting worse and they needed to find someone else to open the restaurant the next day.
“This restaurant is part of a franchise; they have seven other restaurants with about 70 servers so they could easily have found someone to take my place and open the next morning,” says Casandra. “I never called in sick, and in fact, I was their top waitress so what happened to me was utterly surprising.
“Two days later I received an e-mail from the GM, which was also surprising. She told me to return my keys to the restaurant when I pick up my final paycheck. So I assumed I was terminated, even though she couldn’t come right out and say so. I didn’t go back right away, one reason is because it was a 45-minute commute each way.
“And I was heartbroken. We worked so well together for all these years; we even opened this restaurant together and (I thought) we were also friends. The following week I went to a doctor who told me that I was pregnant and I had a blood test. The results showed that my blood count was too low and my doctor said I likely had a miscarriage. That was confirmed a few days later, and I think that was due to the stress of getting fired.”
Casandra didn’t reply to the GM’s e-mail. The following week she handed in her keys, got her last paycheck and filed for unemployment. Another surprise: her employer appealed the decision, saying that Casandra quit. “I guess the employer didn’t know that the GM sent me an e-mail, firing me,” says Casandra. “The employment Development Office was on my side. They said that I deserved to get unemployment, but I only received three unemployment checks.”
Casandra admits that she doesn’t understand anything about the appeals process. She was supposed to attend a scheduled hearing but thought that the appeal was already taken care of because she was receiving benefits. “Because I didn’t show up at the hearing, the employer automatically won the decision of the appeal, so as of June 28, I no longer get unemployment benefits.
“I tried to call the California Unemployment Department but trying to speak to a human is just about impossible. You cannot leave a message. Instead you get a message which says, “There are too many calls coming in and not enough employees due to federal budget cuts so please try again later.” At that point I went online and filed a claim with LawyersandSettlements. I don’t know who else to call or where else to go.”
Casandra has no idea why she was fired unless it is for personal reasons. “To make this story even longer, I was in a relationship for several years and we separated. My ex-boyfriend later asked the GM for work and he got a job as a cook - at the same restaurant as me. He is still working there.”
Casandra doesn’t want to believe that is the reason: how could a business operate with policies outside of the California labor code? Now her only recourse is to file a California labor lawsuit, and get another job.
“I dedicated myself to this company and loved my job and this is what I get in return,” she adds. “I am devastated; getting wrongfully terminated is more than a slap in the face.”
Wrongful Death Alleged in California Labor Lawsuit
According to court documents, Reyna García’s job as general merchandising manager at an Albertson’s in California involved loading and unloading large quantities of merchandise and pushing or pulling heavy pallet jacks. The lawsuit alleges that because of a previous premature birth, García had a note from her doctor medically restricting her from lifting more than 15 pounds. This letter was reportedly given to her supervisor, as were two other doctor’s notes, written after she complained of increasing pain and discomfort, including nausea and pelvic pressure.
García alleges in her lawsuit that her supervisor refused to accommodate her requests for accommodation, a violation of California’s Fair Employment and Housing Act.
“Although Ms. García was concerned for her health and the health of her baby, she stayed on the job because she needed the income and because her health insurance was provided through Albertson’s,” the lawsuit alleges.
On November 12, 2012, García reportedly complained to her supervisor of pelvic pressure and asked to leave work but was denied. That evening, she was reportedly rushed to the hospital. Her baby stayed alive inside her until November 17, when the doctor informed her that the baby was brain damaged. That day, the baby girl was delivered. She survived only 10 minutes.
According to the lawsuit, however, García’s issues with work continued as she was allegedly retaliated against when she returned to work after her six weeks of recovery. The retaliation reportedly included “eliminating her supervisorial and merchandise ordering responsibilities and issuing her a baseless write-up for alleged insufficiencies in her job performance during a period when she wasn’t even at work due to prescheduled days off.”
The lawsuit claims the defendants - New Albertson’s Inc, SuperValu and García’s supervisors - violated California’s Fair Employment and Housing Act by not engaging in a good-faith process with García when she requested an accommodation based on disability and by retaliating against her for making a request for pregnancy-related leave. Under the California Government Code, García’s high-risk pregnancy was considered a disability and should have allowed for accommodations to be made at her employment.
García seeks compensatory, general and special damages in her lawsuit. The lawsuit is case number CV 130309, in the Superior Court of the State of California, County of San Luis Obispo.
Breastfeeding Discrimination at California Hospital
Cellenia’s son is eight months old and it hasn’t been easy juggling work and feeding him. “I requested three months of mat leave after my son was born but I wasn’t called back to work until he was five months old,” Cellenia says. “I work 3.30 p.m. until midnight and use a pump during my lunch break at 7:00 p.m., put the milk in the fridge and my mom feeds my son the next day while I’m at work. At the last hospital where I worked, the lactation room was only available to county workers - not security guards. They locked the room after a certain time so I had to get the Sheriff’s department to open it every evening; they knew I was there but they wouldn’t leave it open for me.”
Cellenia was recently transferred to another hospital (she didn’t want to work a six-day schedule at the last location) and she was provided with a room in the neo-natal ward, which happens to be where she works, making sure nobody unauthorized leaves with the babies. “Everyone knew me there, they talked to me and said it was fine to use the room,” Cellenia explains. “Everyone knew I was expressing milk for my baby and I was storing it in their fridge. I have no idea why this new nurse supervisor was against me.”
According to Cellenia, four days ago the supervisor took Cellenia’s milk out of the fridge and dumped it into the trash can. “She actually told me she threw it away and asked if I wanted it back,” Cellenia explains. “Then she said I couldn’t use this room anymore. It was only for patients and I had to go to another area on another floor but that area was locked. I have no idea why she is acting this way. She could have told me to take the milk away and put it into the employee fridge instead of throwing it in the trash.”
This incident happened during Cellenia’s 7:00 p.m. lunch break. She needed to pump her milk and the only room available was the public lunchroom for county employees, and it was a fair hike away.
“By the time I got there and tried to pump, no milk came out for my baby, I think because I was so stressed out,” she says. “I only had a few minutes and then I had to get back to my station - I was so upset.
A LawyersandSettlements attorney called me and said I should speak with my supervisor and see if something can be worked out before she meets with me next Monday. I don’t feel comfortable here anymore but these hospitals are the only ones available for me to work. So I don’t know what to do at this point.”
Cellenia likely has a case. A new Breastfeeding Discrimination bill, intended to prevent breast-feeding discrimination in the workplace, went into effect January 2013. Although the California Labor Code already requires employers to provide accommodations for women who are breastfeeding, this new law provides additional recourse for women who have encountered breastfeeding discrimination.
Pregnancy discrimination is a serious violation of the California labor code. Businesses and its supervisors - including hospitals - should be aware of this bill and if they haven’t done so already, should implement a breastfeeding policy. As well, employers should take seriously any complaints from employees relating to breastfeeding as they are as serious as any other complaint that is based on sex, race or age discrimination.
California Labor Law: High-Tech Firms Allegedly Violated Antitrust Laws
According to the Daily Reporter (4/5/13), the lawsuits were filed against Apple, Google and other high-tech companies, and alleged the technology firms worked together to prevent employee wages from rising and further to stop employees from leaving their employers. Among the allegations are that the firms enacted an anti-poaching provision, preventing other firms from approaching a company’s top employees. Furthermore, the lawsuits allege, workers who approached other companies for employment were turned away if they were already employed by one of the companies involved in the scheme.
Plaintiffs, software engineers who worked for the defendants, argue that the anti-poaching provisions prevented employees from finding higher-paying employment at other companies and artificially diminished demand for their services, which then kept their wages down because it was more difficult for the employees to undertake negotiations for better salaries. The lawsuits sought class-action status, but a judge recently determined that the individual circumstances of each employee were too different to allow for a class complaint.
An investigation by the US Justice Department resulted in a settlement with some of the companies involved in the lawsuit, although the companies did not admit wrongdoing.
Business Insider (4/6/13) reports that other firms involved in the lawsuits include Intel, Adobe, Intuit, Pixar and Lucasfilm. Although the judge denied class-action status, lawyers for the plaintiffs have the opportunity to request class-action status again, but with a more narrowly defined group.
The companies tried last year to have the lawsuits dismissed, but according to Reuters (4/19/12), Judge Lucy Koh, rejected that bid, finding that the six agreements were identical and reached in secrecy, indicating they were the result of collusion and not coincidence.
The case is In re: High-Tech Employee Antitrust Litigation, District Court, Northern District of California, No. 11-02509.
Meanwhile in a different lawsuit, a settlement has reportedly been reached between Tata Consultancy Services Inc and employees from India, who alleged they were forced to give their employer their tax refund checks. Thomson Reuters (4/9/13) reports that the settlement will see the defendant, who has admitted to no wrongdoing, pay $29.75 million.
The case is Gopi Vedachalam and Kangana Beri v. Tata Consultancy Services and Tata Sons, U.S. District Court for the Northern District of California, No. 06-00963.
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).
Dental Assistant Denied Breaks Led to Downward Spiral - Now Filing California Labor Lawsuit
Gina says that the day after Coast Dental bought out Small Care the registered dental assistants were trained on their new computer system. The following day, all six of the non-registered dental assistants (who helped Gina and her colleagues) were fired. “Three of us were left holding the bag because the workload didn’t change.”
One way to compensate for less staff was deny those workers “dangling the workload” their mandatory 10-minute breaks - one in the morning and one in the afternoon. “Nobody was happy with this situation, even the dentists were devastated,” says Gina. “We were all complaining and we were all working overtime because we were constantly slammed.
“It gets worse. There are ten operatory rooms. It’s a big clinic, so a cleaning service came in at night, along with the break room and the waiting room, but that was prior to the changeover. This new company delivered us cleaning equipment! We worked our buts off all day and then had to clean the entire clinic. We had to mop floors and do all the sterilization. We never signed up for this work but our office manager told us that if we wanted to work there we had no choice.
“At the point we didn’t want to work overtime (which we got paid for) but we had to look after our patients. They forced this whole production issue on us; it was all about making more money. They didn’t want us to work overtime but we had no choice. We constantly complained about not getting breaks. ‘Well take a break,’ they said. How could we take a break when no one could relieve us? We couldn’t leave the dentist and his patient.”
The dental assistants weren’t able to add their breaks to their time sheets as overtime because they clocked in and clocked out at lunchtime, and then clocked back in and out at the end of the day. “Sometimes we couldn’t even get to the bathroom because we were so slammed, but if we ran into the break room and grabbed something to drink, we would get into trouble,” Gina adds. “If you calculate all the days we worked without breaks, it’s a lot of money. Over a year, we probably took 5 percent of our breaks. We were all in the same boat, with the exception of the dentists.
“We complained to the dentists but they didn’t have any control over the corporation. In fact the dentists made it worse - they were running around like chickens with their heads cut off. They had to meet a certain quota and after that they could make more money so that wanted to book in additional crown preps (more money) and emergencies.
“It became very stressful and I was getting depressed. I am a single parent with two teenagers. I explained my work situation and family problems to my doctor. I saw him originally for my yearly physical (I’m almost 50) and I was prescribed Wellbutrin, an anti-depressant. At first I didn’t like the meds and stopped, but my doctor advised me to stay on them a bit longer. The stress at work got worse so I started self-medicating - I had a few drinks after work. Then I went back on Wellbutrin.
“My boss, the office manager, thought I was on drugs, but I just drink wine. Wellbutrin makes you act a bit weird. I knew I wasn’t being myself: I thought everyone was looking at me and sometimes I forgot things but I was always a hard worker and had lots of compliments. They made me take a drug test. I figured I couldn’t stay on Wellbutrin so I stopped taking it the next day. But I started drinking wine again as soon as I got off work. Anyway, I missed a day of work.
“The stress continued. I drank a bit too much one night and next morning I was still a bit drunk at work so they made me leave. I apologized profusely. To make a long story short, I went on a downward spiral and I ended up getting a DUI a few months later. I was incarcerated for 14 days for being drunk and disorderly in public and they fired me.
“But they said I quit because I didn’t show up for work. I have been denied unemployment and food stamps and cannot get any financial aid. I asked my boss for my job back but no dice so I’m looking for work but there aren’t many jobs out there right now. I am happy that I don’t have to go back there, but financially I am screwed. I had to borrow $1,000 from my dad and I’m surviving off my credit cards. My kids are OK - they get child support from their dad.
“There were a lot of stressful situations that led to this point but I have only myself to blame. I want to get reimbursed for my breaks and I want to get unemployment insurance. I put in an appeal about 10 days ago with unemployment but haven’t got a date yet for the judge to hear my case. Meanwhile, I filed a complaint with an employment attorney.
“We all knew it was against the law to deny our breaks but everyone was afraid to complain; we all talked about turning them in. I wish I had reported them to the California labor board before I got fired. And I wonder if any of this would have happened if I was able to take my breaks and not get so stressed out.”
California Labor Law Wage Theft = 865 Employees, Three Time Clocks
Late last month the California Labor Commissioner, Julie A. Su, issued a series of California labor code citations totaling more than $1 million against Quetico LLC.
According to a release from PR Newswire (1/28/13), Quetico employed only three time clocks in the entire complex to service more than 800 employees. Workers, according to the release, were relegated to waiting in long lines just to clock in and out of work - and for their meal periods. In order to avoid being penalized for reporting for work late, due to the lineups at the time clock(s), employees were forced to arrive at the worksite increasingly early, in order to accommodate the long lineups to punch in, so they would avoid reporting for work late.
It is not known if the citations stemmed from a California labor lawsuit or simply from an investigation. Nonetheless, the investigation undertaken by the Division of Labor Standards Enforcement on behalf of the exploited workers, noted that employees coming into work early on a consistent basis just to deal with the long lineups at the time clock, were not be compensated for those extra hours.
The same held true for meal periods, according to the report. Employees, according to California labor employment law guidelines, were allotted a 30-minute meal period each shift. However, they were also required to punch out at the beginning of their meal period, and punch back in upon its conclusion. The long lineups at the time clock would, according to the release, eat into their allotted meal period. Conversely, to avoid reporting back to work late, workers would have to cut their meal period short in order to line up yet again at the time clock, to punch back in.
It was alleged by the Department of Industrial Relations (DIR) that Quetico would alter employee records to suggest employees were given the full benefit of their allotted 30-minute meal period, when in fact employees had been shortchanged.
The same held true at day’s end, when delays at the time clock would force workers to be at work beyond quitting time, just to punch out. Overtime was not paid in accordance with California and labor law. Workers who complained about the unpaid overtime were issued disciplinary memos by the employer, or so it was alleged. Three employees, who filed complaints with the Office of the Labor Commissioner, were suspended from their jobs.
“Wage theft takes many forms,” said Labor Commissioner Su in a statement. “My office will crack down on any employer who is taking hard-earned wages from workers by falsifying time cards and systematically preventing employees from taking a full meal break. We are also intent on eliminating the competitive advantages that labor law violators gain over employers who play by the rules.”
California state labor laws hold that workers in all industries are allotted appropriate meal and rest periods, and - unless a job is classified as exempt from overtime - that overtime pay be provided for all hours spent at the workplace over and above the standard work week, as defined under California employee labor law.
Workers shortchanged according to provisions in California prevailing wage law often seek redress through a California labor lawsuit. The state of California, in particular, is aggressive in pursuing unsavory employment practices on the part of employers, in order to better protect the rights of workers. Lawsuits, either filed by the Office of the California Labor Commissioner or by individuals, or a class of individuals, are often part of the process.
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.
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…
Walmart Retaliation—California Labor Law Violation
October 4, 2012 was an historic day for Walmart. More than 70 Los Angeles Walmart workers from nine stores walked off the job, even though they are not unionized. It was the first strike by Walmart retail employees in the retailer’s 50-year history. More workers and supporters rallied with the protesters, carrying signs saying "On Strike for the Freedom to Speak Out" and "Walmart Strike Against Retaliation”. Workers claim Walmart has threatened, suspended and even terminated employees for speaking out about working conditions and low pay.
Walmart employees claim the company constantly violates the California labor employment law and federal employment laws. In recent weeks alone, Walmart has received more than 20 charges of unfair labor practices nationwide from the National Labor Relation Board.
Workers claim that they have either been fired or had their hours cut back after being involved with OUR Walmart, according to Dan Schlademan, director of Making Change at Walmart, the campaign behind OUR Walmart. (OUR Walmart is a labor group backed by the United Food and Commercial Workers that defends Walmart workers' rights.) Schlademan further said workers have been told not to talk to OUR Walmart organizers and that doing so could shut down stores, which would mean they would be out of work.
Walmart has had more than its share of employment issues recently. Just one month ago, Walmart “lumpers”-- warehouse workers who load trucks to deliver to Walmart--walked off the job protesting against working conditions. (Walmart responded by saying that service providers and subcontractors are expected to comply with the law??"warehouse workers are employed by subcontractors, and not hired directly by Walmart.)
Walmart continued to hit the news when it responded to a “series of unprecedented labor strikes”, according to the Huffington Post (10/13/12). The largest retailer in the world is viewing the protests as “serious attacks” and at the same time, urging its managers not to “discipline” employees who engage in walkouts, sit-ins or sick-outs. It would appear that the company has taken an “about face” regarding retaliation than it had in the past.
Black Friday (Nov 23) is the deadline given to Walmart by striking employees, who demand the company end its retaliatory practices against workers attempting to organize. Along with demanding that Walmart stop retaliating against workers who want to unionize, employees at 28 stores nationwide are also asking for better pay and benefits.
So far Walmart in the US is not unionized, although the majority of stores worldwide are, according to Bloomberg (Jun 2011).
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