Healthcare Worker News
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.
ERISA Not Just About Protecting Investments
employee stock plans, the truth is that ERISA covers much more than retirement plans. Included in ERISA benefits are insurance provided through an employer, meaning that any claims about employer-provided insurance are covered by ERISA.
Covered by the Employee Retirement Income Security Act of 1974 (ERISA) are retirement, health, life insurance, and disability insurance plans. Covering only private employers, ERISA does not require employers to provide health insurance or other benefits plans; it simply sets out rules for when employers choose to offer such benefits. If employers choose not to offer benefits as covered by ERISA, they are not governed by ERISA rules. Furthermore, ERISA does not cover insurance policies that are purchased privately. It only covers those provided by an employer.
Under ERISA, those in charge of health plans and other benefits must provide information about the plan's funding and features, must abide by their fiduciary responsibilities and must provide an appeals process for people who have a grievance with their plans. Finally, ERISA gives participants the right to sue plan fiduciaries in cases where there is a breach of fiduciary duty.
Before a lawsuit can be filed, however, under ERISA the claimant must exhaust administrative remedies before filing a lawsuit. This means that if the insurance company has an internal appeals process, the claimant must file an appeal before filing a lawsuit, if the insurance policy in question is provided by the employer (private insurance, because it is not covered by ERISA, does not have such a requirement and a lawsuit can be filed once the first denial is received.)
Many insurance companies have rules for filing appeals, including a set time in which to file. Certain medical records and an appeal letter may also be required. If that appeal is then denied, a lawsuit can be filed to enforce the claimant's rights. A plan beneficiary or participant can file the lawsuit, depending on the circumstances, and the lawsuit is typically filed against the plan fiduciary or administrator.
It is important to note that under ERISA a claimant will not be awarded punitive damages; all that can be claimed are costs associated with the insurance policy.
Nurse Says She Is Stuck between California Labor Law and Her Union
“Part of my contract with the Nurses Association is to pay me $75 per month for continuing a critical care certification,” Jeanine explains. She has been certified as a critical care nurse for 30 years and prior to becoming unionized, the hospital where she works paid this fee. Now, however, that $75 per month is part of her union contract, and therein lays the problem…
It recently came to Jeanine’s attention that she hadn’t been paid this extra $75 per month for at least the past 18 months, so she complained to her immediate supervisor. Keeping in mind this is not a violation on bonuses, but part of her union contract, Jeanine believed her employer was contractually obligated by law and not paying her would be a violation of the California employee labor law.
Jeanine isn’t alone with this issue - several other nurses haven’t been paid their $75 per month either. Her supervisor told the nurses to give him a copy of their certificates and he would submit them to HR, but Jeanine gave it to her supervisor’s secretary.
“HR said they never got the documentation,” says Jeanine. “Their interpretation of the contract was that they were morally obligated but not contractually obligated by law because our contract states that the certificate needs to be submitted to HR. However, they acknowledged that I had given it to my boss’s secretary. Of course nobody remembers.”
She brought up this issue with her union, to no avail. “The union met and decided they were not going to take this to arbitration. I don’t know why our union isn’t on our side. Furthermore, I asked to be a part of the arbitration selection process because the mediator - who works as the hospital administrator-- was obviously biased. He more or less blamed this issue on me and said that I should be looking at every paycheck.”
Like so many employees these days, Jeanine gets her pay stub electronically - she has to look online for details. And it gets automatically deposited. Sometimes her paycheck varies, depending upon nurses overtime, so it is easy to see how she could overlook a shortage of $75 per month for the past 18 months.
Because the Nurses Union wouldn’t help, Jeanine went to the California Labor Commissioner’s Office. She is familiar with the California labor employment law, having practiced law for six years (she became an attorney in 2001) before going back to nursing - her passion.
“I met with the hospital’s attorney and the labor relations representative - the Labor Commissioner set this up for me after I requested a hearing,” says Jeanine. “At the hearing they said that unfortunately, they would not take my case because it was a matter of interpreting a labor relations contract and that would make it a federal issue. So my only option would be to get an attorney and go to federal court. The amount of money in question is only $2,300 so that won’t happen.
"National Labor Relations is federal law and when that gets breached, you don’t have normal recourse within your state - it becomes a federal issue. You can’t even take it to small claims court so you are totally dependent on your union to represent you in these matters. And I don’t have an attorney that will take my case for a few thousand dollars, unless there are other nurses in my position that want to come forward.
"So I am stuck because my union won’t do anything for me and this has become a federal issue. ‘You are a victim of all the procedures,’ the Commissioner told me; she didn’t give me a lot of hope. The California Labor Commissioner isn’t hopeful that they can do anything if an issue is in any way federal.
"Bottom line, I think our union should be held accountable - they are obligated to represent their members. But the contract says they may consider arbitration - may’ is just another weasel word to get out of arbitrating on behalf of its members.
"The Labor Commissioner said I would be wise to change the contract but it is just another path of frustration for me. I like nursing and taking care of my patients so I don’t want to spend time and money fighting my union. Lesson to be learned: I think people should be very careful when they bring in a union and they should make sure that the union is representing them. We have a runaway union that has their own agenda.
"Now I think that I have a good faith case against my union, especially since I have been a critical care member for over 30 years. I thought about all the union dues I have paid all these years, but perhaps I just have to let this one go.
"And another lesson to be learned: read your contract in detail and check your pay stubs.”
CA Labor Law: Nurse Wrongfully Terminated for Whistleblowing
Cynthia was hired three years ago as a full time ER nurse at a rural medical center and was paid hourly. About a year later some personnel changes took place and her hours were cut, to the extent that some weeks she didn’t get any hours. Then in March of 2009 she got a call from her supervisor: all per diem employees were off the schedule until further notice.
“I told her that I was working full time and I was not a per diem employee,” says Cynthia. “To make a long story short, I was off work for about two months??"I came back as a per diem employee but worked full-time until I got my status back but it took two years. I lost all my PTO (paid time off) vacation pay and sick leave. They made it all disappear. I also lost my ER position.
"Then a woman in HR contacted me: she found a folder with my personnel documents and wanted me to identify them??"she was confused because the information was contradictory and she needed to get her record straight with verification from me. When I saw the documents it looked like someone had changed my status and I have no idea why. I can only assume the hospital board was upset that I got hired at this rate of pay rather than per diem status and they proceeded to cover their tracks.
"It looks like my original contract was altered to make it look like I was hired per diem. You can see that dates have been changed and information superimposed onto the contract that says “hired as per diem with no benefits” with several signatures. It is easy to compare my original contract (I have a copy) with this one??"it is quite absurd; I guess they thought I wouldn’t do anything about it.
"I was pulled from ER and put on the acute care ward, but we weren’t busy enough. They were doing a lot of illegal procedures, such as not having a respiratory therapist on the ward, and I complained to the CEO. I also reported problems with staffing to the state department of health licensing, but not before I gave the CEO time to correct any illegal staffing issues. I told him that we could get shut down if we were ever inspected and patients’ lives were at stake. He said they didn’t have the budget to make changes.
"One month later nothing had changed and they continued to hassle me, not giving me enough hours??"some weeks I didn’t get any hours. And they moved me constantly from day shift to night shift. I just wanted to be either on days or nights??"they were trying to shake me loose.
"On Valentines Day I reported them and the state agency came in four days later, unannounced. At this point hospital administration didn’t know that I made the call and to this day they still don’t know for sure, even though I did advise them to make changes. They had one hour to get staffing in place or get shut down so I got a call at home to report to work ASAP and not to ask any questions.
"The investigation noted multiple deficiencies and it went on until the end of April, 2011. A few people said kudos that I called but they continued to make my life hell. Ultimately they wrote me up for ridiculous things such as discussing confidential drug screening with a co-worker. It was three strikes and I was out.
"Finally the administrator read me the riot act: I was only to come in when I was called. Per diem people were working full time and full time people were working part-time. About a week later I had a meeting with the supervisor and CEO and they tried to talk me into resigning because ‘it wasn’t working out’. But I told them to fire me.
"Bottom line: stand up for what you believe is right and work for a reputable place. As a nurse, I have a reputation to uphold and I believe in my profession. I got another job but at a lesser salary; what I really want is my job back in ER. That hospital used to be a good place to work before corrupt people took over and placed profits over patients.
"I called the labor board the day I was fired and they sent me a package to fill out. I haven’t got any further with them because they are backlogged. Then an attorney from LawyersandSettlements called and I filled out the preliminary paperwork last week.
"My husband and I moved to this rural town to eventually retire but losing my position and taking my benefits away has turned our lives upside down and I don’t think I can retire anytime soon. I believe that I should be compensated for about half my income and my attorney believes so too.”
Cutting Costs Cuts into California Labor Law Violations
When it was time to go back to work, HR told Bob that his position was filled and there were no openings. "I asked the HR woman what that meant - did it mean I was fired?" says Bob. "She said, 'I didn't say that.' Well, what else could that mean? Apparently, I would find out at a meeting.
"The manager of HR, the HR woman who called me and my director were at the meeting. They more or less repeated what I had been told on the phone. They also said that I was a valuable employee but there were no job openings. I was shocked, to say the least."
In other words, Bob was in limbo. He was still an employee but had no job, no hours, no benefits. HR suggested he check the hospital's job website frequently to see if there is any other work he would be interested in. Maybe nursing, an administrative position, cook or housekeeping? Every job posted, at minimum, required one year experience. So after 36 years of being a respiratory therapist, Bob didn't even qualify for a housekeeping job.
"Two weeks ago, they said maybe in three or four months when business picks up there could be an opening in my department and my boss will call me," says Bob, "but I am not holding my breath waiting.
"I found out from my co-workers that two per diem employees were given two part-time positions to fill my job. According to people in the department, they didn't need to fill my position because business was so slow they were sending people home. I am the second-highest paid person in the department; now two people are doing the work of one person for the same amount of money. And so many younger employees will work for less money.
"So I believe I was wrongfully terminated to save costs, and they don't have to pay these two people benefits. I don't know the legal ramifications of this but some people have said that, because I was not fired, they don't have to pay anything into unemployment and I cannot apply for unemployment benefits because technically I am still an employee.
"I have almost drained my checking account and my savings so I don't know what I am going to do. From the divorce I have a big mortgage and if I lose that…well if I do lose it, I owe more than my house is worth. That means I cannot refinance my house and my ex-wife is still on the deed. And I imagine my age is a problem. I would be willing to take less salary but I have to cover that mortgage. I am in a bad situation."
Bob says he has looked for a position elsewhere but jobs are scarce right now. To make matters worse, some of the hospitals require a higher license, which is more involved than the license Bob got 36 years ago. There are two levels of respiratory therapist: certified and registered. Bob is the former. Some hospitals allow the registered therapist to do more procedures than a certified therapist can do. Although Bob has done all procedures in his 36 years of experience, some departments insist on having an entire registered staff.
"I am very despondent about this, I just don't know what I can do," says Bob. "At minimum, I want to file a wrongful termination suit and get my job back. My ideal situation would be getting my job back and job security. But I know there is retaliation.
"I still have my pension and if I have social security, I will be OK financially. But I have given half my life to this place and for them to put me in limbo is so unfair. I think they were hoping I would get mad and quit or do something and get fired."
Bob says he won't play that game; he wants the hospital administrators to know the California labor law violations cannot be tolerated.
Asian Nurse Cries Discrimination, Violation of California Labor Law
Faye says she was fired because she called in sick on two occasions - only twice since 2004. But it could have been for any reason. And Faye says that she and another Asian woman were the only people working at the clinic who were not Hispanic, and they were treated a lot differently than their Mexican co-workers, to their detriment. (Racial discrimination is also a federal offense: it is basically defined as occurring when a person is treated unfairly based on characteristics of his race or birthplace.)
"I called in sick right after Christmas because I couldn't even get out of bed, I was that exhausted," says Faye. "I left several messages with my immediate boss Gwen, telling her that I was too sick to come in and asked if they were OK. I got a call back; she said they were covered but I could come in to work that afternoon. I declined, feeling too sick.
"As it turns out, Gwen told her boss that I was OK and didn't know that I was scheduled to work. Gwen texted me twice that night and phoned around 11pm, telling me to phone the boss. I told her that I would be able to work the next day.
"Apparently Gwen also told her boss that I took the day off to go for job interviews but that wasn't the case, I really was sick. She kept arguing with me over the phone, saying I told Gwen otherwise. She told me not to come to work and would set up an appointment with the three of us to get to the bottom of this issue.
'On second thought I am suspending you as of today so don't show up to work tomorrow,' she said, right out of the blue. 'Instead I want you in my office.' I met her at 11am the next day in her office but Gwen wasn't there.
"Apparently Gwen is not confrontational. We talked for about 30 minutes about me calling in sick and in the end they said I would get a call next week regarding my schedule.
"The next week I went back to her office and I was terminated, because I didn't show up for work. I was given my last paycheck and walked out of the building. I was so upset, and I still am.
"People call in sick all the time, but when I called in sick, I was harassed. And this happened once before. I believe I was discriminated against because I am Asian. The majority of people at this company are Mexican, and we all get along very well, but a lot of things they do were not right.
"For instance, one Hispanic group often took long lunch breaks without going off the clock. Then they would bring their lunch into the office and eat it. I could never do that and not get reprimanded. They often call in sick and there is never any recrimination, only with me. Another Asian girl works here; she opens the clinic at 3am along with a Hispanic girl who is always late. But instead of the late girl getting disciplined, the Asian girl got into trouble. She called me at home, crying. She got into trouble because she called the boss about her co-worker being late.
"It is so important that we are on time. Two nurses are needed to open and get the machines going, so if someone is late, it means that the patient is going to suffer. This job has no room for error or being late."
Faye says that her boss never even listened to her side of the story. Instead, the decision to terminate Faye was based on heresay, what Gwen said. "I didn't even get a chance to defend myself," she says, frustrated. Perhaps she will get a chance, with her labor law attorney.
Was Worker's Death Due to Ignorance of California Labor Laws?
Margarita Mojica was 26 at the time of her death two years ago when she became entrapped in a box creasing and cutting machine. She was 17 weeks pregnant at the time with her second child.
California labor code, as with many federal statutes, dictates not only the requirement that an employer provide a safe work environment, but also that a worker has a right to protest if he or she feels at any time in danger while on the job.
It is not clear if the victim was even aware of the potential for disaster while simply doing her job.
According to the October 19th issue of the San Francisco Chronicle, the Oakland wife and mother of a young daughter was preparing a box creasing and cutting machine to start a job at the facility to replace a cutting die. According to prosecutors she was leaning into the machine when it suddenly activated and closed like a giant clamshell around her.
It is alleged that the owners of Digital Pre-Press International (DPI) of San Francisco were employing a previously owned cutting and creasing machine originally purchased in 2003. It has been reported that workers at some juncture asked to have a safety bar removed from the machine to allow for the handling of thicker cardboard. Investigators say the safety bar was not reinstalled.
While it is unclear if the accident would have been prevented had the safety bar been in place, there are a number of allegations that suggest workers at the facility were not properly schooled in safety protocols according to the tenets of California and labor law.
Regulators cited DPI on two previous occasions, in 1998 and again in 2001, for failing to maintain a worker safety program. The owner of DPI, Sanjay Sakhuja, is reported to have communicated to regulators that he had a training program in place by 2002; and an insurance inspection in 2007 found no problems with the machines at the facility.
However, following the tragic death of Mojica, state regulators under California labor employment law issued no fewer than 14 citations against DPI for not training workers properly. While the plant was reported to have a written safety program, workers told regulators they were never instructed on machine safety.
Sakhuja, along with pressroom manager Alick Yeung, have each been charged with manslaughter and willful violation of California state labor laws. A wrongful death civil suit has since been settled, according to The Chronicle. The value of the settlement was reported to be $6 million.
California Labor Law Disallows Discrimination against Filipino Nurses
Racial or ethnic discrimination can occur when an employer refuses to hire a person because that person speaks with an accent, even if she is fully qualified for the job. The union provided evidence - produced affidavits signed under penalty of perjury - showing this is what happened at CPMC. One former nurse manager, Ronald Rivera, worked at CPMC from April 2006 to April 2010 when he resigned on good terms. "One day I spoke with Diana Karner (VP of nursing) on the phone about hiring new RNs," he attested, according to the Los Angeles Asian Journal. "Diana said to me that we probably should not hire any more foreign graduate nurses. She explained that patients complain because 'it is hard to understand them and be understood by them.'"
Another affidavit came from Chris Hanks, who was the Director of Critical Care from 2008 to 2009 and reported directly to Karner. Hanks attested that he was told not to hire any Filipino nurses and said that Karner told him, "The Filipinos are always related, or know each other, and that's not good. You're not to hire them."
The union provided evidence that showed in 2007 the Filipino RNs at St. Luke's were 66 percent of the nursing population. Today they have dropped to just 10 percent.
Dr. Warren Browner, California Pacific Medical Center's chief executive, said that Sutter doesn't keep track of how many Filipino nurses it employs, but then added, "The percentage of Asian nurses at St. Luke's has actually risen slightly, from 63 percent in 2007 to 66 percent today."
According to the Los Angeles Times on 8/19/10, these discriminatory practices stem from Sutter's plans to cut services at St. Luke's. "Sutter's discriminatory practices against Filipino nurses is as much about denying job opportunities as it is about punishing unionized Filipina nurses at St. Luke's who stood up to Sutter's plans to cut services to our community," said Lillian Galedo of the Oakland-based Filipino Advocates for Justice.
Interestingly, Filipino nurses were honored last July by the Los Angeles City Council. Eric Garcetti, president of the City Council, sponsored a commendation ceremony for the Professional Filipino Nurses Society (PFNS). The society was honored by the Los Angeles City Council for their valuable contribution and service to the Filipino nurses in Los Angeles. The commendation was also signed by Los Angeles mayor Antonio Villaraigosa. PFNS was conceived to promote professional advancement and social awareness in the community.
Unionized California Home Workers Replaced with Non-Union Staff
The Contra Costa Times reports that about 150 members of Service Employees International Union-United Healthcare Workers who are employed at the two senior care facilities staged a five-day strike starting Monday, August 2 and ending that Friday. The Times reported on 8/9/10 that the union had been bargaining since February over the terms of a new contract after the previous contract expired on April 30.
At the time of the strike, the workers were without a contract. It should be noted that a previous strike in 2007 lasted only two days, and that the employees returned to their jobs without incident.
This time, when employees returned to work on August 7, at least 38 workers at Piedmont Gardens were told their services were no longer required. They were granted a place in a "preferential rehire list," but they were out of a job.
It is reported the laid-off unionized workers were replaced with non-union employees. An attorney for the operator of the facilities, American Baptist Homes of the West, suggested the facility was required to replace the workers in the absence of any assurances from the union that the workers would stop striking.
However, a spokesperson for the unionized workers said that facility management was notified in advance of the strike and management assured the union that workers would not be fired.
"We've never had this problem before," said Gloria McNeal, a certified nursing assistant who has worked at Piedmont Gardens for 21 years. "But there was a different administration."
It was also reported that workers who were picketing on August 2 were complaining that the company targeted workers who voiced concerns with regard to management policies. Employees have allegedly been terminated for taking five or more sick days a year.
A spokesperson for the union, Jarad Kings, told local media that American Baptist Homes of the West violated federal labor laws by replacing unionized with workers with non-unionized staff. It remains to be seen whether any provisions of California labor law were violated, and whether or not the union or displaced workers launch legal action to pursue reinstatement. Both sides have expressed optimism that their differences could be resolved.
California Labor Law Dispute over Nursing Levels
Nurses employed by the University of California (UC) are at odds with the university over staffing levels. The California Nurses' Association (CNA) had planned to stage a one-day strike over the issue. However, San Francisco Superior Court Judge Peter J. Busch cited California labor code to temporarily and then permanently establish a ruling that halts any such activity by the nurses and the CNA.
The union says it is undeterred by the ruling.
According to the 6/19/10 issue of the Sacramento Bee, Judge Busch issued a temporary restraining order on June 8, two days before a planned walkout at various hospitals run by UC. The restraining order was requested, according to the report, by the state Public Employment Relations Board (PERB) on behalf of UC.
On June 18, the judge made that ruling "permanent," reports the Sacramento Bee. There was reasonable cause, argued the judge, for the PERB to believe a strike would violate California state labor laws.
The CNA is involved in contract talks with UC with regard to its employees at the five medical centers run by the university. One issue that has become particularly contentious is the union's assertion that staffing levels at the UC medical centers are unsafe.
The state mandates nurse-to-patient ratios of at least one nurse for every five patients, with more nurses for patients requiring higher levels of care.
The university denies the union's charge that staffing levels are unsafe.
The current contract between the university and the CNA expires on September 30. Judge Busch has outlawed any kind of a walkout or strike at least until that date.
Carol Robinson, the chief nursing officer for the UC Davis Medical Center, told the Sacramento Bee she is hopeful that the judge's ruling will convince the CNA to "sit down at the table so we can work out a really good contract for the nurses. We can do this in earnest instead of posturing."
But the CNA is undeterred, said Beth Keane, the CNA's lead negotiator for the union's university labor contracts. "We're going to continue fighting for proper staffing levels. We're not going to stop."
Keane noted that while the union intends to file complaints with the State Department of Public Health, a previous complaint filed by the union in November of last year over staffing levels at the UC Davis Medical Center has yet to be met with a response.
The CNA represents nearly 11,000 registered nurses employed by the university, including 1,800 at the UC Davis Medical Center. The employee labor law dispute appears poised to simmer through a long, hot California summer.
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:
