Professional Service News
Los Angeles to Pay Almost $4 Million to Settle Harassment and Discrimination Lawsuit
Los Angeles, CA: Los Angeles has agreed to pay almost $4 million to a city parks worker who filed a lawsuit against the city alleging he suffered harassment and retaliation for years at the hands of one of his supervisors. After years in court, the Los Angeles City Council reportedly agreed to the payment after the court issued a ruling in favor of the city worker.
James Duffy worked as a gardener for the City of Los Angeles from 1991 to 2010, according to court documents. From 2001 to 2006, Duffy was allegedly the victim of discrimination and harassment from his supervisor, Abel Perez. The harassment reportedly included being called derogatory names, being given poor treatment and being written up without cause.
“During his tenure as plaintiff Duffy’s foreman, defendant Perez consistently gave plaintiff bad assignments and bad parks to work in and would not assign anyone to help him, while Hispanic gardeners usually got two assistants,” the lawsuit alleged. “Perez promoted Hispanic employees but refused to promote plaintiff. He stole tools from plaintiff’s truck and threatened to write plaintiff up when the tools were discovered in Perez’s truck.”
Making the situation worse, in 2004, Duffy suffered a serious brain injury while at work. That brain injury caused Duffy to speak more slowly and have difficulty thinking. He also developed a tendency to repeat himself. Perez reportedly mistreated Duffy, hiding his tools so he could not carry out his job duties. Perez was transferred after an investigation into his behavior but still allegedly harassed and discriminated against Duffy because he was indirectly still Duffy’s supervisor.
“From mid-2008 until Duffy’s retirement, Perez allegedly drove by Duffy’s assigned parks several times a week during which he honked his horn at Duffy and called him derogatory names,” judges wrote in their decision. “Duffy reported that, on two occasions, Perez threatened him with physical harm. Perez repeatedly made references to Duffy’s race and disability during the incidents, and threatened to kill him if he reported Perez to his superiors and made him lose his job.”
Despite Duffy reporting the harassment to supervisors, no further action was taken. Perez has maintained he did not harass or discriminate against Duffy, but other workers on the job backed up Duffy’s claims that Perez said he was biased against white employees.
Duffy was awarded $3,255,000 at trial, but the city appealed, arguing that Duffy had waived his right to sue when he opted for early retirement. The appeals court agreed with the trial court and included appeal costs in its award.
The lawsuit is James Duffy v. City of Los Angeles, case number B252465, in the Court of Appeal for the State of California.
TrueCar Truly Believes It Is Compliant with California Law
Santa Monica, CA: In an ongoing California compliance battle between the California New Car Dealers Association (CNCDA) and TrueCar Inc. (TrueCar), the former continues to chase the latter in the courts over what the CNCDA feels is unlawful pricing, together with false and misleading advertising on the part of TrueCar, or so it is alleged.
TrueCar is an entity that was founded in 2005, and reportedly has grown to be a popular resource for car buyers in the Golden State. According to the Sacramento Bee (1/7/16), TrueCar forges relationships with car dealers across the country, and employs those relationships to provide accurate and detailed pricing information on the cost of vehicles through its digital platform. TrueCar claims to have the capacity to link buyers to economically favorable offers from its affiliated dealers, and thus avoid on-site haggling that is normally the bastion of the automotive sales industry.
However, the CNCDA has cried foul, alleging that TrueCar is not complying with California law that serves to regulate the automotive sales industry. For one, the CNCDA accuses TrueCar of false and misleading advertising by way of assertions that TrueCar advertises a claim of “no surprise or hidden fees” on its website, when in reality - or so it is alleged - TrueCar receives a fee from each sale moved through its digital platform.
“TrueCar actually matches a buyer and a seller and gets paid for doing so. This is brokering, and TrueCar isn’t licensed as such,” insisted Brian Maas, CNCDA president, in comments published in the Sacramento Bee. The California compliance lawsuit asserts that TrueCar is not in compliance with California law and seeks a remedy to bring TrueCar into compliance.
TrueCar, for its part, asserts that it is already in compliance, and suggests that a lawsuit having twice been amended by the plaintiff is a sign that the CNCDA non-compliance lawsuit is full of holes.
The CNCDA, based in Sacramento, represents over a thousand franchised new car and truck dealers in the state of California and bills itself as the largest association of its kind in the United States. It brought a California non-compliance lawsuit against TrueCar in May of last year.
According to the Sacramento Bee, the plaintiff made its first of two amendments to its lawsuit in the summer following TrueCar’s attempts to have the lawsuit dismissed in August. Johnny Stephenson, identified as the Chief Risk Officer for TrueCar, suggested in an e-mailed statement to the Sacramento Bee that his company moved to have the newly amended complaint dismissed outright, based on various “defects” TrueCar noted in the complaint.
According to published reports, the Los Angeles Superior Court in Santa Monica did actually dismiss the CNCDA complaint in December of last year, but left the barn door open sufficiently to allow the plaintiff to further amend its complaint and refile again.
The CNCDA did just that and resubmitted its complaint last month. The plaintiff contends that TrueCar is, effectively, acting as a broker in matching buyers with vehicles - and in the state of California, entities undertaking brokerage of any kind must be licensed to do so.
According to the Los Angeles Times (5/20/15), TrueCar charges its affiliated dealers a fee for each sale - about $299 for a new car and $399 for a used car. In some states, including California, TrueCar charges a monthly subscription fee that roughly translates to those rates. It is that subscription fee that generated the California lawsuit. Since California state law dictates that consumers must be provided with a disclosure that outlines whether they or a dealer are paying a fee to a broker, the CNCDA sees that subscription fee as the impetus for a non-compliance lawsuit.
TrueCar, based in Santa Monica, insists it remains compliant with the letter of the law. To that end, the CNCDA is not seeking monetary damages in its California compliance lawsuit, but rather seeks compliance on the part of TrueCar according to California law, should it wish to continue its current business model.
California Minimum Wage Increases
San Diego, CA: As of January 1, 2016, the California minimum wage has increased to $10.00 per hour. That means all eligible employees must be paid at least $10.00 per hour for regular hours. Employees who are not properly paid the minimum wage may be eligible to file a wage and hour lawsuit against their employer.
According to the Department of Industrial Relations, the January 1 increase is the second in 18 months. On July 1, 2014, California’s minimum wage was increased from $8.00 per hour to $9.00 per hour. The second stage of the increase was the January 1, 2016 raise to $10.00 per hour. The pay increase took effect as of the first day of January, meaning all employees who earn the state minimum wage should see the change in their pay beginning January 1.
“Almost all employees in California must be paid the minimum wage as required by state law,” the department notes in its news release. Independent contractors and other workers may be exempt from minimum wage pay, but most workers are eligible for it. Employers must also post information about wages, hours and working conditions at an employee-accessible area. As a result of the minimum wage increase, eligible employees will also see an increase in the minimum overtime pay required.
Some cities in California have higher minimum wages than state law. According to KTLA (12/28/15), San Francisco, Oakland and Emeryville have minimum wages of more than $12. Los Angeles reportedly may raise minimum wages in the city to $15 per hour by 2020.
Cheerleaders in California might notice the biggest jump in pay. As of January 1, all California sports teams are required to pay their cheerleaders at least minimum wage. Although that will only affect a small number of games this season, it will affect all games for California teams going forward.
Cheerleaders are frequently treated as independent contractors instead of as employees, despite their supervisors having a great deal of control over their appearance and their cheerleading schedule. The new law (AB 202) requires that cheerleaders in California be treated as employees, meaning they are also eligible for paid sick leave and meal breaks.
In recent years, lawsuits have been filed by cheerleaders in various sports leagues alleging their pay often amounts to well below minimum wage when expenses, fees and penalties are factored in. Some of those lawsuits have been settled for millions of dollars, while others are still pending.
Judge in Uber Case Rules on Arbitration Agreements
San Francisco, CA: Plaintiffs in the Uber misclassification lawsuit have been handed another victory in their litigation against the ridesharing company. The judge in the lawsuit has ruled against Uber’s arbitration agreement, setting the stage for thousands more plaintiffs to join the lawsuit.
US District Judge Edward Chen ruled Uber’s arbitration agreement was not enforceable, meaning drivers who signed it are eligible to join a class-action lawsuit against the ridesharing company after all. In September, Judge Chen granted plaintiffs class-action status, although at the time the class did not include drivers who signed Uber’s arbitration agreement.
In December, however, Judge Chen ruled on the arbitration agreements, finding them unenforceable as a matter of public policy. Judge Chen found that the 2014 and 2015 arbitration agreements “contain a non-severable PAGA [Private Attorney General Act] waiver, rendering the entire arbitration agreement also unenforceable.” As a result, UberBlack, UberX and UberSUV drivers will now be eligible to join the lawsuit if they signed up under their individual name, even if they did not opt out of the arbitration agreement.
In addition to ruling on the arbitration agreements, Judge Chen also ruled class members could pursue claims linked to work expenses, including vehicle and phone expenses.
Uber has appealed the decision.
The lawsuit was initially filed by Uber drivers who claimed they were misclassified as independent contractors even though Uber reportedly treated them like employees. Because they were classified as independent contractors, they were not eligible for certain protections, including overtime, sick days and health insurance.
Some employers require workers to sign arbitration agreements, which essentially waive an employee’s right to file a lawsuit to settle disputes such as wrongful termination and wage complaints. Instead, employees are forced to go through an arbitration process to resolve any claims. Arbitration cases have different rules about sharing information between claimants and defendants than court processes and usually do not allow for appeals.
Up to 160,000 drivers could now be included in the class against Uber, although some drivers are still excluded. The ruling also shows that not all arbitration agreements are enforceable and the courts may still be required to make judgments on the legitimacy of individual agreements.
The lawsuit is O’Connor et al. v. Uber Technologies Inc. et al., case number 3:13-cv-03826, US District Court for the Northern District of California.
California Fair Pay Act About to Take Effect
Sacramento, CA: On January 1, 2016, California’s Fair Pay Act, SB 358 (Jackson), will take effect. The bill will give more grounds for employees to challenge pay discrimination. In addition to addressing wage disparity, the bill is designed to prevent employers from retaliating against employees who discuss their pay.
A Hard Life, Unfairness the Bastion of the California Undocumented Worker
San Francisco, CA: Julieta Yang’s voice is only one in the wilderness that is the undocumented worker in California. But the single mother of three who hails from the Philippines is an example of the challenges and hurdles faced by the undocumented worker in the state of California.
A sector, by the way, that is integral to the state economy. And yet, as important as they are, undocumented workers are maligned, ridiculed, often abused and frequently underpaid. It remains a sad reality that many employers show more kindness to their pets, forgetting that the undocumented worker is a human being.
According to The Guardian (11/15/15), Yang has been an undocumented worker for some 20 years. Separated from her children, who remain in the Philippines, Yang regularly sends money home to her kids in spite of barely making enough to live on herself.
Since 2008, Yang had been working for Uber executive Cameron Poetzscher and his partner Varsha Rao, head of global operations for Airbnb. Based initially in Singapore, Yang found herself in San Francisco when her employers relocated to the United States in 2013.
No longer employed by the couple, Yang is currently embroiled in a lawsuit against her former employers amidst allegations of abuse and a situation where she was chronically underpaid. “I served the whole family,” she told The Guardian. “I did their laundry, I cleaned their home. I did whatever they asked me to do at any time of the day…despite that, they treated me with great disrespect.”
Yang’s role was ostensibly as a live-in nanny in her employer’s San Francisco home. In her California undocumented worker lawsuit, Yang asserts she was paid a flat rate based on five hours of work per day. In reality, or so it is alleged, Yang toiled for nine hours per day for six consecutive days each week. Yang also alleges she was not provided regular meal breaks or rest periods, and was not paid overtime, amongst other allegations.
In her lawsuit, however, Yang faces an uphill battle in that her allegations are founded within the four walls of a private home in the absence of witnesses. Thus it comes down to her word against those of her former employers. Carole Vigne, an attorney and the director of the Wage Protection Program at the Legal Aid Society Employment Law Center in San Francisco, says the burden is on the worker to prove that the violations did occur.
“I’ve seen employers doctor time sheets and forge signatures of workers to disprove allegations of wage theft,” Vigne told The Guardian. “People go to extreme lengths to protect themselves from the allegations and the workers have to fight that.”
Yang has no idea what her future holds. But she feels an overriding need to speak out on behalf of all undocumented workers like her.
She has plenty of company.
According to a 2012 survey by the National Domestic Workers Alliance, 23 percent of almost 2,100 nannies, caregivers and housecleaners were paid below the state minimum wage, 35 percent worked long hours without breaks, and 19 percent reported being threatened, insulted or verbally abused. The survey shows that live-in domestic workers were even worse off, with 67 percent paid below the state minimum wage and 36 percent threatened or verbally abused.
Domestic workers routinely face wage theft, long work hours without rest, hostile work environments and sexual harassment on the job, according to Katie Joaquin the campaign coordinator for the California Domestic Workers Coalition. Immigrants can be even more vulnerable to exploitation.
It’s important for undocumented workers in California - a big part of the state’s economy - to fight back against abuse.
Yang’s voice is just one cry in the wilderness. She’s hoping her cry will grow to a chorus in due course.
California Judge Grants Preliminary Approval to $1.8 Million Settlement
Los Angeles, CA: A California Wage and Hour Employment class-action lawsuit reached an important milestone a week ago when a US District Court Judge gave a nod to a settlement worth $1.8 million. Up to 22,000 class members will share in about $1.2 million, with the remainder going to attorney’s fees.
The defendant in the case is the Burlington Coat Factory Warehouse Corp (Burlington). According to court records, the allegations centered on the deprivation of rest periods and a requirement for bag checks that were conducted off the clock, allegedly depriving class members of wages to which they were entitled.
The original California wage and hour lawsuit (Armida Rodriguez v. Burlington Coat Factory Warehouse Corp. et al., Case Number 2:13-cv-02426, in the US District Court for the Central District of California) was filed in 2012 by named plaintiff Armida Rodriguez. Two years later, in November 2014 Rodriguez filed her motion to certify the class given the belief that Burlington maintained a “uniform policy” relating to rest periods and bag checks that would have affected all non-exempt employees in Burlington’s 60 locations across California, in similar fashion.
According to court documents, the settlement benefits all current and former hourly, non-exempt (for overtime purposes) employees of Burlington who worked in any one of its retail stores in the state of California from October 2008 through the date of settlement approval.
The plaintiff, in her California wage and hour lawsuit, asserted that Burlington maintained a handbook of policies and protocol requiring managers to conduct bag checks for security purposes after hourly employees had already clocked out for the day.
On Wednesday, December 2, it was reported that US District Judge Dean D. Pregerson granted preliminary approval of the $1.8 million settlement. The next step in the process comes early in the New Year, when Judge Pregerson will hear arguments for a final fairness and approval hearing on February 29, 2016.
In his order granting preliminary approval, Judge Pregerson referenced the “risk, expense, complexity and likely duration” of trying the litigation, together with the risks associated with trying to maintain class-action status throughout a pending trial.
Thus, he granted preliminary approval of the settlement.
The requirement for bag checks at major retail establishments has long been the bane of low-paid retail workers who are often required to wait in long lines for mandated bag checks for security purposes. The problem, plaintiffs say, is that such security checks are undertaken on their own time, after they have clocked out for the day. In some cases, employees are often required to undergo security checks prior to commencing their meal breaks - again, on their own time, which also is alleged to impinge on the length of time they have available for nourishment and rest.
To combat these alleged California wage and hour injustices, plaintiffs have taken to the courts for redress.
Retired Teacher Files $12 Million Lawsuit
Los Angeles, CA: A retired teacher has filed a $12 million lawsuit against the Los Angeles Unified School District, alleging her employer did not provide her with a working environment that was free from harassment. Cathy Figel, an openly gay teacher, alleges in her lawsuit that she was subject to an unsafe work environment, including anti-gay language, vandalism and physical violence.
CBS News (11/12/15) reports that Figel, who taught physical education for 13 years at Marina del Rey Middle School, retired because of the repeated harassment. Figel alleges the school district did not take her complaints seriously, repeatedly dismissed her reports of harassment and was told not to identify herself as gay. Figel also said she was transferred to a different school, which she feels was retaliatory, and was prevented from participating in her school’s marine science program. The school district said in a written statement to CBS that it disagrees with the allegations and is vigorously defending itself.
Meanwhile, a California call center has agreed to pay $600,000 to settle allegations of harassment and retaliation. VXI Global Solutions was accused by the US Equal Employment Opportunity Commission (EEOC) of allowing a hostile work environment in which male and female employees were subjected to various sexual harassment including groping and touching, sexual propositioning, and comments of a sexual nature from their supervisors.
The EEOC further alleged that supervisors threatened staff and VXI Global Solutions retaliated against staff that reported the harassment. In addition to paying the $600,000, VXI Global Solutions will retain a consultant to revise policies and procedures regarding sexual harassment and retaliation; to create a system to track sexual harassment and retaliation complaints; and to provide training in dealing with harassment complaints.
“Sexual harassment continues to be a persistent problem in the workplace and a priority for EEOC,” said Rosa Viramontes, district director for EEOC’s Los Angeles District, in a written statement. “Workers should not have to endure a hostile work environment because of their sex which, if unchecked, is a violation of federal law.”
Sexual harassment and retaliation are violations of Title VII of the Civil Rights Act of 1964.
The lawsuit, which was initially filed in September 2014, is EEOC v. VXI Global Solutions, Inc., Case No. 2:14-cv-07444.
Plaintiffs Have Another Go at Farmers Insurance Exchange in California Lawsuit
Los Angeles, CA: It’s déjà vu for Farmers Insurance Exchange (Farmers), following the filing of a California wage and hour class-action lawsuit alleging Farmers improperly classified commercial claims representatives as exempt from overtime pay, while often being made to work upwards of 50 to 60 hours per week or more without compensation.
A similar class-action lawsuit (Bell v. Farmers Insurance Exchange) was settled some time ago following a landmark judgment against the defendant. That judgment, ending a lawsuit originally filed in 1996, was worth $210 million.
“Although many of the plaintiffs were Farmers claims adjusters at the time that Bell v. Farmers Insurance Exchange was resolved, they were not personal lines adjusters and accordingly were not included as class members in the final resolution of the case,” the complaint filed November 2, 2015 states. “Despite the fact that plaintiffs had similar duties and responsibilities to those claims adjusters, they were not considered members of the plaintiff class in Bell v. Farmers Insurance Exchange and accordingly have never received compensation for the overtime hours that they worked.”
This latest California wage and hour class action seeks to represent all those who were not part of the original lawsuit - current and former claims reps employed by the insurer in the state of California from May 2003 to present day. The lawsuit has been brought by the R. Rex Parris Law Firm.
California law requires that hourly, non-salaried workers are paid overtime for any hours worked beyond 8 hours in any given day or 40 hours in any given week. Meal breaks and rest periods are also mandated and must be compensated in kind if missed or not provided. There are various provisions in the California labor code that free employers from paying overtime, including jobs that are classed as management, or IT professionals who are salaried and whose pay has reached a certain threshold, as an example. Thus, there are legitimate instances where employees are exempt from overtime.
However, employers are also known to bend the rules in an attempt to avoid paying overtime to employees who properly qualify.
It has been alleged that following the settlement in the Bell v. Farmers case, the insurer duly reclassified their affected employees as qualifying for overtime, but in name only. A subsequent lawsuit filed in Los Angeles Superior Court in 2012 accused the insurer of continuing to deny their qualifying employees overtime while at the same time discouraging overtime pay, while maintaining a workplace culture that promoted and required work off-the-clock.
The 2012 lawsuit, which was not a class action but proceeded as an individual claim, was dismissed outright without prejudice by the court in June 2015. A new class action against the insurer was filed in September, apart from the lawsuit noted below which was filed earlier this month.
John Bickford, an attorney with the R. Rex Parris Law Firm, noted that “insurance companies are all about making profit for themselves and trying to cut corners when they have to pay.”
The California wage and hour class action is Karen Mickey et al. v Farmers Insurance Exchange, Case Number BC599916, in the Superior Court of the State of California, County of Los Angeles.
Animal Welfare Complaints Result in Wrongful Termination Lawsuit
Vallejo, CA: Concerns about animal welfare at a Six Flags park in California have reportedly resulted in a wrongful termination lawsuit against the theme park operator. Michael and Holley Muraco filed the California wrongful termination lawsuit because they say they were retaliated against for reporting Six Flags for poor animal care.
According to court documents (found online at NBC News), Michael Muraco had been the Director of Animal Care for Six Flags since 2007. At the time he was hired, Michael reportedly told his supervisors that upgrades were required to address animal care, including poor water quality and public safety. Among his concerns were that dangerous animals could escape enclosures and dolphins were at risk for respiratory illness. Meanwhile, Holley Muraco is a Zoological Reproduction Physiologist, who signed a five-year contract with Six Flags in 2012 to assist with reproduction of animals.
Michael claims that despite his repeated warnings and complaints, steps were not taken to address his concerns until matters became serious, such as when an elephant was caught climbing over an enclosure.
“Michael Muraco complained, inter alia, that dolphins were addicted to unnecessary drugs, that marine mammals were not being fed proper diets, and that the Park was not putting enough salt in the salt water,” court documents allege. “The failure to address these problems was extremely detrimental to the health and welfare of the animals at Six Flags.”
Holley Muraco, meanwhile, reported issues that she felt caused an “abnormally high mortality rate for baby animals,” including dolphin water that was not properly temperature controlled, dolphins being given daily steroids to mask chronic illnesses and abusive dolphin training techniques. An investigation by the USDA following the deaths of two baby dolphins concluded the Muracos were correct in their concerns, and cited Six Flags for some of its infractions.
Ultimately, Michael and Holley Muraco were terminated from their positions and were reportedly told they were terminated because they endangered animals at Six Flags. In their lawsuit, Michael and Holley Muraco allege they were retaliated against for reporting legal violations at Six Flags.
The lawsuit alleges violations of the Whistleblower Protection Act, the Workplace Health and Safety Act, and public policy. Furthermore, both Michael and Holley allege defamation on the part of various Six Flags employees. Six Flags issued a news release in which the company said the lawsuit is without merit.
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