Education News
Former Wells Fargo Branch Manager Reinstated with $577,500 in Compensation
Pomona, CA: The continuing fallout over allegations that a major corporate bank encouraged its employees to open customer accounts without their client’s knowledge or permission has hit Wells Fargo yet again, this time through an investigation by the California Division of Occupational Safety and Health. That investigation led to a reinstatement order issued by the US Department of Labor (DOL) that will see a former Wells Fargo branch manager in Pomona reinstated to her former job and paid back wages and other costs.
Last year an investigation by the Consumer Financial Protection Bureau (CFPB) uncovered a massive scheme whereby upwards of 5,000 employees of Wells Fargo were found to have opened some 1.5 million bank accounts and more than a half million credit card accounts without the knowledge or authorization of Wells Fargo customers, allegedly to meet aggressive sales targets.
The unnamed branch manager had reported to her superiors that at least three private bankers working at her branch had been engaged in the unlawful practice of opening accounts on behalf of existing Wells Fargo customers, as well as enrolling them into other Wells Fargo products and services without their knowledge, consent or the securing of appropriate disclosures.
As her reward for reporting the activity, the branch manager was let go in September, 2011.
OSHA, which is mandated to look out for the health and safety of employees and oversee healthy and safe work environments, conducted an investigation and found that reports filed by the branch manager were in some way a contributing factor in her termination. As such, her termination was wrongful under provisions of the Sarbanes-Oxley Act and the Consumer Financial Protection Act of 2010.
A representative with the Division of Occupational Safety and Health indicated that the investigation into the Pomona termination was related to some 700 whistleblower complaints received by the Office of the Comptroller of the Currency (OCC), but offered no further elaboration.
It should be noted that the OCC, for its part turned the focus inwards back in the spring of this year and determined in April following an internal review that the agency was overly slow to respond to what was alleged to be a massive effort to generate fake accounts at Wells Fargo. The OCC had received upwards of 700 complaints from current and former Wells Fargo employees and had been aware of the allegedly fraudulent activity since as early as 2010.
The wrongful termination complaint was not an OSHA lawsuit per se, but was resolved nonetheless through an investigation by Cal/OSHA and a reinstatement order made through the DOL. Wells Fargo had signaled it did not agree with the findings of the investigation or the reinstatement order, taking the view that the order was based on preliminary findings only and not a full hearing, the latter Wells Fargo signaled, it intended to pursue.
An appeal to the DOL’s Office of Administrative Law Judges would not stay the preliminary reinstatement order, which will also expunge and clear the whistleblower’s personnel file, and pay her full back pay, compensatory damages and attorneys’ fees for her OSHA lawyer.
The total sum going to the whistleblower comes in at over a half-million dollars: $577,500.
California Woman Launches Harassment Lawsuit against Dolby
Los Angeles, CA: A former employee of Dolby Laboratories Inc. in California has filed a harassment lawsuit against her former employer and various individuals alleging harassment, and an unfair and fractious work environment. Plaintiff Sushama Gokhale alleges violations against the Civil Rights Act of 1964 and various laws maintained by the state of California.
Gokhale’s harassment lawsuit makes eight claims for relief including wrongful termination, failure to prevent discrimination and harassment, retaliation, and a hostile work environment. Undetermined damages are sought for past and future lost wages, mental pain, anguish, and emotional distress.
The harassment lawsuit is Gokhale v. Dolby Laboratories Inc. et al., Case No. 3:17-cv-03845, in the US District Court for the Northern District of California.
According to court documents the plaintiff joined Dolby in 2006 and enjoyed stellar work reviews. And yet, pay raises were described as ‘meager’ and she was never promoted. To that end Gokhale claims that women were not promoted as often as their male counterparts. Women, the lawsuit claims, were also marginalized, given less opportunity for advancement within the firm and were excluded from executive and other high level management positions, or so it is alleged.
Gokhale, who claims to have filed numerous complaints only to suffer retaliation and harassment that eventually led to her dismissal, also claims that certain superiors named in the lawsuit regularly employed profanity in the workplace, including numerous tirades and “unprovoked and unjustified” bouts of anger.
Verbally-abusive put-downs were conducted, it has been alleged, in front of other staff members. One of the defendants, the harassment lawsuit says, “targeted plaintiff and other women with systemic and pervasive harassment, put-downs, embarrassment, and displays of intense and unwarranted anger,” the suit claims, adding the defendant was “loud, hostile, dismissive, and verbally and physically intimidating towards plaintiff and her female counterparts.”
Gokhale claims to have been “publicly cursed” within earshot of several other employees. A male engagement manager with Dolby is accused of using gender-laden expletives in reference to females in the department.
In her harassment lawsuit Gokhale observed that once she began reporting the abuse – and the abusive workplace culture – to the human resources department, it is alleged that Gokhale’s superiors retaliated by withholding resources Gokhale needed to perform her job. Gokhale also claims she was verbally and emotionally bullied.
While one of her complaints to HR was still an active investigation, Gokhale was fired, the plaintiff’s lawsuit claims, “for not cooperating with the reorganization of her group.”
Gokhale served as the director of global compliance for intellectual property at Dolby, until she was let go.
Know Your Rights under the California Family Rights Act
Berkley, CA: Tom Spiggle is an attorney and author of You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace. In a blog originally appearing last year and updated last month in Huff Post (06/15/17), Spiggle notes that various protections at both the federal and state level that help insulate workers from discrimination (such as the federal Family Medical Leave Act and the California Family Rights Act) are valuable tools for the protection of worker rights. At the same time, however such a patchwork of protections crossing various jurisdictions can inject a high level of complexity into the mix.
While Spiggle notes that the aggregate ‘win’ rate for lawsuits brought for alleged discrimination under FMLA and CFRA, for example is more than 50 percent (v. about 10 percent for non-FMLA employment discrimination cases), it’s also important to have legal counsel who understands and is well conversant with the various intricacies to which Spiggle refers as a patchwork of protections at the federal, state and even municipal level, according to the jurisdiction involved.
The takeaway here is that protections are many, and varied. For example, the federal FMLA that provides employees with non-discriminatory time away from their jobs for maternity leave, paternity leave, or to care for an injured or sick relative is augmented by the CFRA in California that works in concert with the federal statute. Spiggle makes the point, however that the patchwork of various protections working in concert with one another can make for a tricky area of law.
In other words, don’t take suspected, perceived or obvious discrimination or unfair treatment under FMLA and / or CFRA sitting down. The plaintiff has a very good shot at winning compensation against an unfair employer – but it’s important to have a good FMLA and CFRA attorney who knows the lay of the land and the road ahead.
It’s also important for the would-be plaintiff who may have a case for an FMLA lawsuit to think proactively, and have all their ducks in a row.
For example, Spiggle notes that litigation is an obvious response if the employee is fired unfairly. However, there are various statutes that protect an employee while still on the job about which the employee should be aware. For example, a new mother who is breastfeeding may require accommodations for breastfeeding on the job – or a woman suffering from postpartum depression may need (and is deserving of) accommodations at work that would allow the employee to recover effectively while remaining an effective employee. Such rights and protections are available under the Americans with Disabilities Act, the Pregnancy Discrimination Act and the Fair Labor Standards Act.
However, Spiggle makes the point that most employers aren’t conversant with such provisions, and thus the onus is on the employee to speak up and make formal requests, as is their right, for accommodations to the Human Resources department, or a supervisor.
Spiggle also makes the point that a basket of statutes “make it unlawful for an employer to take action against you if [you] report discrimination to your boss,” he writes. “But like the laws on reasonable accommodation, anti-retaliation laws only apply if you directly raise the issue of discrimination while you are still at work.”
He uses the example of a valued employee who is a ‘shoo-in’ for a promotion until the employee announces she is pregnant, only to see the promotion go to a more junior male employee. Were the now-pregnant employee to remain silent about her disappointment at the lost promotion only to face job termination later, she would have a claim for wrongful dismissal. However, had she formally complained to her supervisor about the lost promotion while still employed, she would have a second level of retaliation that Spiggle says is easier to prove and provides to the affected employee more leverage.
Spiggle notes there are other areas about which women have seen problems in the work place. The Center for Worklife Law at the Hastings College of the Law based at the University of California, has documented various patterns – two of which are women who experienced no workplace difficulty with their first pregnancy but suddenly faced discrimination with their second – and, discrimination at the hands of new management who swoop in and make everyone’s life difficult. An employee with an otherwise stellar employment record, who suddenly faces discrimination by a new supervisor, is a pattern noted by The Center for Worklife Law.
At the end of the day, the prevailing advice is for the employee to know their rights under the Family and Medical Leave Act, the California Family Rights Act, and the Fair Labor Standards Act (together with other available statutes and protections) and respond accordingly to any real or perceived threat of discrimination.
When it comes time to file an FMLA lawsuit, be sure to source an attorney and a firm well-conversant with FMLA and CFRA laws.
Long-Running California ERISA Lawsuit Settles
Los Angeles, CA: An ERISA lawsuit based in California that had been waged for 10 years quietly settled back in March following the third day of a bench trial (In Re Northrop Grumman Corp. ERISA Litigation, Case No. 2:06-cv-06213, in US District Court for the Central District of California). Weekend negotiations prior to the resumption of the trial succeeded in bringing both sides together, with a confidential settlement reached in the decade-long case.
The ERISA lawsuit extends back to September, 2006 when five class representatives filed suit against Northrup Grumman Corp. and a collection of executives and fiduciary committees tasked with administering 401(k) plans maintained by Northrup Grumman. A related action was later filed and combined with the first ERISA lawsuit.
The lawsuits alleged violations to the Employee Retirement Income Security Act (as amended, 1974), guidance related to the administration of retirement plans. To wit, ERISA outlines various fiduciary duties required of administrators and their committees with regard to 401(k) plans and the management of same on behalf of plan members. Administrators have a fiduciary duty to put the interests of plan members ahead of those of the sponsoring corporation or, for that matter, their own.
It was alleged the 401(k) plans suffered when Northrup Grumman was unlawfully reimbursed in excess of $10.5 million in administrative expenses by executives and fiduciary operatives of the plans. Plaintiffs alleged the $10.5 million-plus in questionable administrative expenses reduced the plans’ value, and diminished its growth potential.
The settlement remains confidential.
Northrup Grumman is a defense contractor. The lawsuits centered upon two 401(k) plans managed by the corporation on behalf of its plan members. Class plaintiffs claim that between 2000 and 2009 a fiduciary committee together with three Northrup Grumman executives allowed the re-imbursement of about $10.5 million in administrative fees that were paid to the benefits department of Northrup Grumman over a period of about 9 years.
Plaintiffs held that in so doing, those tasked with a fiduciary duty to manage the two 401(k) plans in the absolute best interests of plan members violated their fiduciary duties as required by the Employee Retirement Income Security Act.
The ERISA lawsuit has navigated a rocky road since it was launched in 2006. US District Judge Margaret M. Morrow, originally assigned to the case, had previously dismissed Northrop, one of the committees and all but thee individual defendants, from the lawsuit.
Judge Morrow would eventually certify two putative class actions related to the case, but limited the proceedings to the claim that Northrup Grumman was reimbursed to excess for administrative services alleged to have been in violation of ERISA.
Things got more interesting in early fall last year when a related action dubbed ‘Marshall’ was filed, seeking damages from Northrup Grumman from September, 2010 to the time of judgement. Northrup Grumman responded with a motion to either decertify the instant class or disqualify class counsel from the Marshall claim.
“Defendants’ attempt to disqualify plaintiffs’ attorneys or decertify this class on the eve of trial is the epitome of a Hail Mary attempt to avoid trial,” the plaintiffs stated in their opposition filing.
In the end the bench trial went ahead before US District Judge Andre Birotte Jr. with the settlement reached following the third day of proceedings.
The Employee Retirement Income Security Act outlines specific fiduciary duties required of 401(k) managers in order to administer, and grow retirement plans to the best of their abilities with complete fairness, without hurting the plans by putting the interests of the sponsoring corporation ahead of those of plan members and retirees. Should any failure of fiduciary duty under ERISA come to light, an ERISA lawsuit is a common recourse in an attempt to reverse any damage to growth potential and value contained in an ERISA 401(k) plan.
Trucking Firms Found to be In Violation of California Compliance
Los Angeles, CA: A settlement reached between the US Environmental Protection Agency (EPA) and various trucking companies which operate in the Los Angeles Basin will result in the payment of just over $201,000 in penalties for failure to comply with California state regulations governing the need to protect air quality in an area of the state that already has some of the worst air quality in the country. While it is not known if the settlement stemmed from a compliance lawsuit per se, the fact remains a handful of companies were found to have dropped the ball when it comes to air quality and compliance with state laws.
“Diesel trucks are heavily used in the San Joaquin Valley and Los Angeles Basin, which suffer from some of the worst air quality in the nation,” said Alexis Strauss, EPA’s acting regional administrator for the Pacific Southwest, in comments published in the El Paso Times (05/04/17). The exhaust from diesel trucks accounts for the largest source of what is officially deemed as fine particle pollution – more commonly known as soot. Newer trucks are generally equipped with fine particulate filters attached to exhaust systems that mitigate emissions of fine particulate into the air.
Older models however do not generally feature fine particulate filters as standard equipment and must be retrofitted. The statute applies to any truck or bus that operates within the state of California, regardless of where they are originally registered. The El Paso Times reports that some 625,000 trucks and busses that are registered outside of the state of California regularly travel to, or through the state and thus are beholden to the state statue.
The EPA identified California compliance issues with a handful of operators of older-model vehicles that were identified as lacking the necessary fine particulate filters.
According to EPA, C.R. England operated 34 heavy-duty diesel trucks in California from 2013 to 2014 without the required diesel particulate filters. The company, headquartered in Salt Lake City, Utah, is currently in compliance but is required to pay a $64,000 penalty for prior non-compliance issues.
Knight Transportation is reported to have failed to verify that the carriers it hired to
transport goods in California from 2012 to 2014 complied with the Truck and Bus
emissions statute. Knight was dinged $72,000 and agreed to register all of its hired contractors on the state database, as well as to provide verification of state compliance. Knight calls Phoenix, Arizona home.
Meanwhile, Werner Enterprises is reported to have operated five heavy-duty diesel trucks in California from 2012 to 2014 without the required diesel particulate filters. Werner also, akin to Knight, failed to verify that the carriers it hired to transport goods in California complied with the Truck and Bus guideline. The operator, based out of Omaha, Nebraska, is required to pay a $65,000 penalty.
It is not known if drivers of the trucks at issue were cited in any way, for potentially knowing about the lack of particulate filters.
It should be noted that dirty air affects everyone in the state, from residents to workers alike, and often governs a worker’s capacity to perform tasks required of their employment – especially if they work out of doors and in the thick of polluted air. Compliance control of vehicles potentially adding to the pollution problem in the state, and in the Los Angeles Basin in particular, benefits everyone and can contribute to employee rights overall.
Employees required to work long hours out of doors – especially agricultural workers – are especially vulnerable to excessive heat and poor air quality.
Former Venture Capital Employee Asserts Discrimination, Harassment
San Mateo, CA: A discrimination lawsuit launched June 28 in California state court alleges discrimination and harassment suffered while employed at a Golden State venture capital firm. The plaintiff, identified as Ann Lai, claims in her lawsuit that Binary Capital Management LLC (Binary Capital, Binary) was found to be an inappropriate workplace for women. Lai also cited confidentiality provisions she alleged to be stifling.
Binary Capital is listed as a co-defendant in the case, along with the co-founder of the firm.
According to court documents the plaintiff commenced her employment at Binary in 2014. Lai asserts that soon after joining the firm she encountered various instances of what was characterized as discriminatory behavior in the workplace. Lai claimed there were comments with regard to her attractiveness and that of various founders of the firm who were also female. Lai claimed to have also encountered inappropriate behavior towards female employees at company outings.
According to her discrimination lawsuit, Lai raised the issues with her superiors, but there was no response.
As a result, Lai announced in November, 2015 that she intended to resign from the firm. However, Binary co-founder Jeff Caldbeck – who is also the co-defendant in Lai’s discrimination lawsuit – convinced Lai to stay on, according to Lai’s complaint.
However, with no apparent resolution to issues that proved to be a continuing concern for the plaintiff, Lai made the decision to actively start looking for new employment and announced to co-defendant Caldbeck that she wished to resign her position with Binary.
Caldbeck, according to court documents, suggested that were Lai to leave the firm “she would never work again,” according to court records associated with Lai’s discrimination complaint. Lai resigned anyway, three days later. In her complaint Lai cited various allegations, including threats to her reputation, suspicious lines of questioning about ongoing projects and a declined expense reimbursement check.
In her discrimination and harassment lawsuit Lai asserts that in spite of her best efforts to secure other employment, no other employer in the Bay area proved willing to hire the plaintiff. In her complaint, Lai asserted that co-defendant Caldbeck and others “falsely told [potential employers] she had been fired or [was] asked to leave Binary for poor performance,” according to Lai’s complaint.
Lai eventually found employment in New York.
In her complaint, filed in concert with her discrimination lawyer, Lai claims that Binary “was not gender-neutral and evidenced a sexist and sexual environment prohibited by the anti-discrimination laws,” her complaint noted, referencing a female-specific dress code and remarks about female employees’ level of attractiveness.
The plaintiff also asserts that Binary forced workers to sign employee agreements that carried confidentiality, non-disclosure and non-disparagement provisions that were overly broad.
“These illegal provisions – to put it mildly – make it hard for employees to ‘speak up’ about inappropriate or illegal conduct, both during their employment and forever after,” her complaint says. “Employees are instead led to believe that it is illegal to do so, and that disclosing information about their working conditions will lead to ruinous litigation.”
Lai cites violations to the California labor code, intentional interference with prospective economic advantage and intentional infliction of emotional distress. The plaintiff also brings a claim under the Private Attorney Generals Act over the confidentiality and non-disparagement agreement.
The case is Lai v. Binary Capital Management LLC, Case No. 17CIV02882 in the Superior Court of California, County of San Mateo.
Eight-Year Wage and Hour Litigation Likely Looking at $21 Million Settlement
Los Angeles, CA: A California wage and hour class action that has been on the books since 2009 is finally nearing its conclusion, following release of details involving a mediated settlement worth $21 million. The plaintiffs, employees of US Security Associates Inc. (USSA), last week urged a federal court in the Golden State to grant preliminary approval to the deal.
The wage and hour lawsuit is over allegations of missed meal breaks and rest periods, as well as other violations to both federal and state employment laws.
It was in 2009 that plaintiff Muhammed Abdullah – named as the lead plaintiff in the wage and hour lawsuit – first brought forward allegations that USSA failed to provide to security guards in their employ meal breaks and rest periods. It was also alleged, when the lawsuit was launched in January of that year with the aid of Abdullah’s wage and hour lawyer, that the defendant compelled the guards to undertake purchases of certain items, failed to pay the guards missed vacation time, and failed to pay their employees upon job termination, amongst other allegations.
District court in California granted Abdullah’s action class certification two years later in 2011. USSA appealed the certification to the Ninth Circuit. Two years after that, in September of 2013 the Ninth Circuit upheld the lower court’s ruling.
Undaunted, the defendant took their opposition towards the wage and hour lawsuit to the US Supreme Court with a petition for writ of certiorari. However the Supreme Court declined, leaving the Ninth Circuit with the last word.
Meanwhile, while all this was going on other plaintiffs with similar claims came forward with their own putative class actions. To that end, plaintiffs Juan-Leal Cardenas (May, 2013) and Robert Stone (January 2015) each filed two other putative class action wage and hour lawsuits. There were also claims filed under the Private Attorney’s General Act (PAGA).
By April of 2015, both of the latter cases were associated to the Abdullah wage and hour lawsuit.
The various parties went through mediation, and this past December both sides filed a notice indicating a settlement had been reached. Details were not revealed until now.
Under terms of the agreement upwards of 17,000 class members would be in line to receive an average of $1,235 each, before deductions. The opt-out, non-reversionary settlement would resolve all claims brought in the Abdullah action and the wage PAGA claims asserted in the Stone action. Class participants would receive payment based on the number of shifts worked.
Class attorneys are expected to pursue 33 percent of the settlement in compensation for their representation.
In concert with other state jurisdictions and the federal Fair Labor Standards Act, California observes a basket of guidelines that provides non-exempt employees certain rights with regard to rest periods, meal breaks and overtime pay for work performed beyond an eight-hour day, or a 40-hour week.
The wage and hour lawsuit is Muhammed Abdullah et al. v. US Security Associates, Case No. 2:09-cv-09554, in the US District Court for the Central District of California.
Restauranteur Convicted of Paying Undocumented Worker Pauper’s Wages
Ukiah, CA: Examples of how the undocumented worker, so valued to the California economy and protected with a basket of rights housed within California law, continues to be abused abound. Regardless of whether, or not an immigrant possesses legal documentation does not preclude an undocumented worker the basic right of fairness.
Two examples in recent months are demonstrative of how undocumented workers are often taken advantage.
Recent allegations over the Wells Fargo bogus account controversy involve assertions that undocumented workers were canvassed near construction sites, Social Security offices and other locations and recruited by Wells Fargo operatives in order to pressure them to sign up for bank accounts they didn’t want.
The allegations are made in a California derivative lawsuit (In Re Wells Fargo & Company Derivative Litigation, Case No. CGC-16-554407, in the Superior Court of California, County of San Francisco).
According to Court documents and a declaration by a former Wells Fargo employee, Hispanic employees of a Wells Fargo branch situated in Petaluma, California were sent to a particular 7-Eleven where undocumented day laborers were known to congregate, and convince said laborers to accompany them to a California Wells Fargo branch to open checking and savings accounts under the premise of waived fees.
Wells Fargo has denied the charges, suggesting that such behavior is against company policy.
Meanwhile, a restauranteur in Northern California was sentenced to two years in prison back in April following guilty pleas of forcing undocumented Thai workers in her employ to work for minimal wages, amongst other undocumented worker and tax fraud allegations.
The defendant, identified as Yaowapha Ritdet, recruited between eight and 16 undocumented Thai immigrants to work at two restaurants she owned with her husband in Ukiah, California. A complaint by the US Department of Justice (DOJ) asserted that Ritdet sometimes paid her workers as little as $20 for a six-hour shift. That translates to a wage of somewhere between $3, and $4 per hour – a sum well below minimum standards and to some, pauper’s wages. The undocumented workers in her employ, according to their undocumented worker lawyer and court documents, asserted they were also unable to take rest breaks and meal periods as entrenched in California law, and were forced to live under rigid rules in a residence above one of the restaurants.
Those undocumented worker allegations prompted an investigation by the DOJ in 2013. Facing an investigation, it has been alleged that Ritdet compelled her charges to lie to federal investigators and not to divulge their status. It has been reported that one undocumented worker was compelled to make a vow, in front of a statue of Buddha, that the worker would not expose Ritdet.
Court heard that while underpaying her employees, Ritdet also skimmed money from cash customer accounts and wired hundreds of thousands of dollars to a private account in Thailand, where she was undertaking significant expense to construct a three-story building there.
It has been reported that Ritdet paid for a Las Vegas vacation for her employees, and produced memoranda of support from her employees. However, the DOJ and the Internal Revenue Service (IRS) didn’t buy it. Ritdet’s conviction involved allegations of tax fraud, amongst other charges, and will serve an additional three years of supervised release following her prison sentence. The defendant is to pay restitution for tax losses to the IRS, as well as back wages to her former employees.
The memorandum stemming from the DOJ investigation in 2013 is blunt: in part, “The harm of her criminal conduct is compounded because she cheated her employees out of a fair wage,” the memorandum states.
The case is US v. Yaowapha Ritdet, Case No. 3:14-cr-00215, in the US District Court for the Northern District of California.
US Supreme Court Rules for Church-Affiliated Hospitals in ERISA Dispute
Washington, DC: It’s an ERISA win for church-affiliated hospitals and health care facilities attempting to escape from the rigors and fiduciary requirements of the Employee Retirement Income Security Act, following a ruling earlier this month by the US Supreme Court that affirms the extension of the ERISA religious exemption.
Amongst the health care providers petitioning the Supreme Court to extend the ERISA religious exemption is California’s Dignity Health. Dignity joined Advocate Health Care Network (Illinois) and Saint Peter’s Healthcare System (New Jersey) in arguing that the religious exemption – first introduced in 1980 – allowed for a church-affiliated organization to be excused from the primary responsibilities of ERISA.
For some time now, the debate has raged over an interpretation as to what the 1980 amendment to ERISA actually meant: to wit, does affiliation with a church group (such as the Catholic Church, for example), or affiliation with an actual bricks-and-mortar church represent the prerequisite for exemption?
The Supreme Court, in its ruling, opined that church affiliation is all that is required and held that such interpretation was the original intent of the 1980 amendment.
The win for the hospitals, translates to a loss for employees – including those of Dignity Health in California – who fronted an ERISA lawsuit against their employers over the health and vitality of their pension plans. Employees argued that church affiliation was insufficient for ERISA religious exemption, and thus their employers should be made to abide by the full extent of ERISA protections and benefits, including requirements for funding minimums, insurance and disclosure.
According to the opinion, Justice Sonia Sotomayor agreed with her learned colleagues as to the interpretation of the statutory text, but nonetheless questioned how the US Congress of today (v. the Congress of 37 years ago) might view the evolution of the healthcare industry during that time.
To wit, even with the Supreme Court’s backing for the ERISA religious exemption, the hospitals bringing the petition operate various subsidiaries that are for-profit capable of earning billions of dollars in revenue. As such, they “compete in the secular market with companies that must bear the cost of complying with ERISA,” Justice Sotomayor wrote.
“These organizations thus bear little resemblance to those Congress considered when enacting the 1980 amendment to the church plan definition. This current reality might prompt Congress to take a different path,” Justice Sotomayor said.
The ERISA cases are Advocate Health Care Network et al. v. Maria Stapleton et al. , Case No. 16-74; Saint Peter’s Healthcare System et. al. v. Laurence Kaplan, Case No. 16-86; and Dignity Health et. al. v. Starla Rollins, Case No. 16-258, in the Supreme Court of the United States.
An Informed Employer Can Often Avoid an FMLA Lawsuit
Sacramento, CA: Employers based in California and who employ 50 or more workers face an extended basket of regulations through the California Family Rights Act (CFRA), which augments the federal Family and Medical Leave Act (FMLA). Thus, anyone filing an FMLA lawsuit in the state of California benefits from extended protections through the CFRA. And yet, notes the California Chamber of Commerce (CalChamber), there are, in some cases overlapping and conflicting tenets resulting from the conjoined Acts.
And then there is retail juggernaut Walmart, which has a footprint in every state of the Union including California, but appears to be having enough troubling adhering to the federal FMLA, without bringing the CFRA into the mix for its Golden State retail locations.
To that end, Walmart is facing a formal complaint from A Better Balance, the advocacy group that has accused Walmart of various violations against the Americans with Disabilities Act, FMLA as well as state and local laws with regard to a points system employed by Walmart to track the attendance records of its workers.
According to documents, Walmart assigns a point system to various infractions a worker might commit – anything from abusive language or insubordination towards a supervisor, to late arrival for work, or poor attendance overall. The report by A Better Balance infers that once an employee has accumulated a certain number of points, that employee is fired.
However, A Better Balance has taken Walmart to task for alleged infractions including, but not limited to the assignment of a ‘point’ to an individual having suffered a heart attack while on the job (and rushed to hospital), refusing to allow an employee time off work to care for a terminally-ill parent, and otherwise pressuring workers to come in for their assigned shifts in spite of their own illness, or that of a loved one.
This past November, the advocacy group filed a formal complaint with the US Equal Employment Opportunity Commission. Walmart has employees in California covered both by the FMLA as well as CFRA.
Advocates note that a common mistake amongst employers in any state is differentiating between a serious illness, and that which is non-serious in nature.
However, notes CalChamber, with two statutes to keep track of in the Golden State – the federal FMLA and California’s own CFRA, there is a bit more to worry about.
Generally, under FMLA and for those employees who qualify, 12 weeks of unpaid medical and family leave are available to workers, with 26 weeks available to care for an ill or injured service personnel.
The CFRA also grants 12 weeks medical and family leave – for an extended illness, to care for an ill family member, or to bond with and help care for a newborn for example – but with remuneration to a certain percentage of an employee’s wage. Unlike FMLA, CFRA is paid leave for those who qualify.
An employee can take family and medical leave under several different circumstances. FMLA and CFRA contain similar provisions and generally run concurrently. However, there are some situations where the leave will be FMLA only or CFRA only, notes CalChamber.
For example, there is no provision in CFRA for caring for service personal battling illness.
And yet, with so much allowance for leave under FMLA and CFRA in the state of California, not to mention rights and protections to ensure there is no retaliation against an employee exercising his or her rights, why would an employee need to pursue an FMLA lawsuit or similar action citing violations of the CFRA?
Most advocates agree it’s due to a lack of understanding of FMLA and CFRA laws on the part of the employer and – at least in California anyway – how those two Acts intersect.
CalChamber is but one example of available guidance that can help employers avoid needless litigation, sparing an employee already under duress the added frustration of taking an employer to court for refusing the right, and the leave that is the employee’s due.
That said, an employer can’t blame an employee for simply attempting to exercise rights and freedoms – and leave (paid in California) – entrenched and guaranteed under state and federal laws.
About . TOS . Privacy . Disclaimer . Contact . Advertise . Member Login
This work is licensed under a Creative Commons Attribution-NoDerivs 3.0 Unported License ©2026 Online Legal Media. All rights reserved.
Visit other Online Legal Media Websites:
