Hostile Work Environment at Universal Studios

Valencia, CA No one really knows how many workers are subjected to harassment because many employees are afraid of retaliation if they complain about their hostile work environment. These days it's not easy to find work elsewhere and all too often supervisors, managers and employers take advantage of their authority, even though they are violating the California labor law.

One such employee is Janet (not her real name) who worked as an accountant in a hostile environment for three years, until she had a nervous breakdown. Janet worked at Universal Studios for 11 years before taking nine months maternity leave. When she returned to work in 2007, her new supervisor started to make her life miserable.

According to Janet, her supervisor, let's call her Mary, harassed her from Day One. "She came into my office and pulled a list of names off my wall and screamed that we weren't using this billing list anymore, as if I had done something wrong," says Janet. "I had no idea why she acted this way??"I was startled. And it was strange that she didn't explain this new rule to me rather than yell. I had met Mary once; just one month before I went on maternity leave and didn't know her at all. She constantly put so much pressure on me and never missed an opportunity to criticize me. I never had a complaint before; everyone knows me as a hard worker and I did my job well."

To make matters worse, Janet's co-worker (there were only four people working in her department, including Mary) also added to the hostile environment??"and they were friends. Apparently, Allan (not his real name) has a history of drinking on the job, and Mary has a history of harassment, which Janet discovered from her former supervisor. Mary, who had worked at Universal for 30 years, even had a harassment lawsuit filed against her some years previously: Janet said Mary "came out on top."

Janet said that Allan often came into her office drunk. "I have witnesses who heard him call me a 'f**king slob' and 'f**king slut,' and they attested to that in a signed letter," Janet adds.

"By 2009 I found enough courage to talk with Mary; I told her she intimidated me and made me feel worthless and that I was also disrespected by Allan. 'You know that he drinks and you had better not report it or ever talk about his drinking on the job because it will backfire on you,' she said. I walked out of her office speechless and even more afraid.

"I went back to my office, put my head down and kept working. Then a few days later I spoke with my old supervisor and explained how I felt threatened by Mary. She told me that I needed to speak to HR. I didn't follow up on her advice because I was afraid of losing my job if I reported anything. Unfortunately my old supervisor won't speak against Mary either because she is also afraid of retaliation.

"But about five months later it became unbearable??"I went to HR shaking and crying uncontrollably; I was having a nervous breakdown. I told HR about Allan's drinking and swearing. She said an investigation would be forthcoming. It took her three months to get back to me. 'I find no evidence of him drinking,' she said. That was the end of discussion. As for my supervisor; 'Perhaps she could work on her management skills but perhaps you are oversensitive.' I didn't have the opportunity to respond??"she had another appointment.

"I was crushed. What do I do now? In an email to HR, I said if the harassment and intimidation continued, I would go higher up to seek help because I couldn't continue under this stress. She responded the next day and said we should talk further, meaning Mary, Mary's supervisor, and me. I didn't want to do that without my union's representation because this was going to mean more intimidation. I tried to contact my union but they never returned my call. So now I felt that I didn't have anyone on my side; fear gripped me even more.

"I have to say that after speaking with HR, M and my co-worker backed off but it started all over again after this 'cooling off time.' By November 2010 I knew I couldn't take anymore: it started affecting me physically...

"I found it hard to get up in the morning; I felt worthless because I couldn't get help anywhere. I went to my doctor with back spasms??"directly related to stress??"and I haven't been back to work since. He recognized right away that I couldn't return to work and wrote a note that said I needed to go on disability leave. He also referred me to a psychiatrist.

"I am currently on long term disability, seeing the psychiatrist and trying to get better so I can return to work. I requested to be moved to a different department but I was told by email from HR that I had to either go back to work with Mary or quit my job and re-apply. Technically I am supposed to go back to work June 1st but I can't go back to that hostile environment. In a perfect world, I need to work in an environment where I'm not afraid. Of course problems and issues arise, but nobody should have to work with fear."

Is Pharma Rep Overtime Debate Destined for US Supreme Court?

Seattle, WA Should pharmaceutical reps qualify for overtime? It has proven to be a contentious issue, rife with debate and conflicting rulings. It's an Employment issue that is not confined to pharma reps, but has affected a number of sectors that pit employees who feel they have been stiffed out of extra pay, against employers who sometimes pull every trick in the book to get out of paying overtime.

Law Suits are often the only way to settle it. And sometimes it settles nothing.

Pharmalot reports that a federal appeals court ruling from Valentine's Day affirmed a lower court ruling in November of last year that two GlaxoSmithKline sales reps who claimed to be owed overtime pay are, in the opinion of the court, exempt from the relevant provisions of the Fair Labor Standards Act (FLSA).

However, those rulings contradict that of the US Court of Appeals last summer, which ruled that plaintiffs working for Novartis are entitled to overtime. The latter ruling seems to jive with a US Department of Labor brief that supports overtime pay for pharmacy reps and makes a case for it.

Under federal law, employers are required to compensate employees for all hours worked above 40 in any given week, with overtime pay calculated according to the given rate. The only time this law does not apply is when an FLSA exception applies.

Defendants in the pharma overtime lawsuit argue that the FLSA compensation exemption requirement does not apply to employees who work outside the company as sales reps and account executives in a capacity for obtaining orders and sales contracts.

Drug companies say that is indeed the case. The plaintiffs in this particular lawsuit, however, argued that a direct sale does not occur given that sales reps are calling on doctors. While the doctor prescribes the medications, the doctor isn't the one selling the medication. The latter are purchased by patients and hospitals, often from wholesalers.

However, the Ninth Circuit Court noted that the plaintiff's assertions failed to take into account the realities and the heavily regulated nature of the pharmaceutical industry. And that even though drugs are not actually sold to and therefore purchased by doctors, the "sale" exists as only it can exist in the drug industry.

Sales reps "are driven by their own ambition and rewarded with commissions when their efforts generate new sales," the Ninth Circuit Court ruled. "They receive their commissions in lieu of overtime and enjoy a largely autonomous worklife outside of an office. The pharmaceutical industry's representatives�detail men and women�share many more similarities than differences with their colleagues in other sales fields, and we hold that they are exempt from the FLSA overtime-pay requirement."

Legal watchers are looking for this issue to go all the way to the Supreme Court.

Judge Throws Out California Labor Law Class Action

Sacramento, CA The California labor law ruling may have come down after the defendant was no longer in office - however, it took the presiding judge just one day following the hearing of arguments to rule against the plaintiffs in Newton v. Schwarzenegger. The class-action lawsuit launched over correctional officer furloughs was struck down, the Sacramento Bee reports.

The lawsuit was launched on behalf of the California Correctional Peace Officers Association (CCPOA), which had taken issue with self-directed furloughs - arguing that they violated the Fair Labor Standards Act (FLSA).

In his California labor code ruling, it appeared that US District Court Judge Vaughn Walker did not agree.

The State of California, with Arnold Schwarzenegger in office, resorted to furloughs in an effort to improve the state's coffers. In the midst of a financial crisis, the Office of the Governor directed that employees of the state in every sector would be required to take a certain number of unpaid days off in any given year, which would translate to savings for the State or California.

Various groups took issue with the directive, citing alleged violations of California labor employment law, federal laws and FLSA. Specifically, CCPOA took the position that cutting employee pay but deferring the actual furlough time violated the law because employees aren't paid in full for hours worked within a given pay cycle.

The plaintiffs also held that time worked on an unpaid furlough day should be calculated in figuring overtime and that the state hadn't kept adequate payroll records.

The judge, in his ruling just one day after hearing arguments, did not agree.

"The furlough program, while perhaps convoluted in execution, ensures that plaintiffs are compensated for all hours worked during the pay period," Walker wrote. "Because plaintiffs are compensated for all hours worked, and because that compensation exceeds federal minimum standards, plaintiffs claim of violation of FSLA fails."

As for violations with regard to record keeping under California sate labor laws, the judge noted that the law allows for only the secretary of labor to sue for alleged violations of record keeping.

The Bee noted that the California employment labor law case applied only to the members of Bargaining Unit Six of the CCPOA.

State Supreme Court: Richmond Did Not Violate California Labor Law

San Francisco, CA The state Supreme Court ruled recently that the city of Richmond did not violate civil rights or California labor law when it laid off 18 firefighters when the city was facing the potential of bankruptcy in 2003, the Contra Costa Times reports.

The decision reportedly affirms previous lower court rulings as well as the Public Employee Relations Board's decision to reject a claim arguing that Richmond violated its contract with the International Association of Firefighters, the news source said.

According to state law, public entities are allowed to lay workers off due to economic reasons, but they need to bargain the effects of reducing the workforce, including the potential consequences facing the workers remaining.

Local 188 of the International Association of Firefighters reportedly argued that the layoff of the firefighters adversely affected the safety of the workers, and as a result, should constitute a need for bargaining.

According to the San Francisco Chronicle, Justice Joyce Kennard wrote in the ruling that government employers still need to negotiate over decisions to carry out layoffs.

California Labor Law: Harassment Led to Suicide Attempt

San Bernadino Valley, CA Wrongful termination and workplace harassment are California Labor Law violations, even though California is an "at-will employment" state, and men can be harassed.

Steve (not his real name) worked four years as a company mechanic until he couldn't take any more harassment. Steve's co-workers, who were much younger than he, thought it was all "fun and games," but not for Steve - he tried to commit suicide.

"My co-workers and supervisors tormented me with ridiculous questions, usually of a sexual nature," says Steve. "They asked if I would have sex with a 12-year-old for a million dollars; Would I have sex with the owner? They also accused me of being a child molester and deliberately trying to get me upset - maybe so they would feel better? They wouldn't let up and continued to antagonize me until I answered."

Steve eventually went to HR, complaining that this kind of behavior was not correct for employee relations. The HR manager then brought it to the attention of Steve's supervisors.

"Apparently about nine co-workers were told not to say anything more to me," says Steve, "but that got ridiculous. They wouldn't even respond to a 'good morning' from me, and three of them were told not to talk to me at all (a co-worker told me). My supervisors tried to put me on as many solo jobs as possible, but when I did have to interact with others, important information I needed wouldn't be given to me. 'I guess I will just make it up,' I said to them once…

"The pressure got to me and I called in sick on Monday, August 17, 2009. I called in sick again Tuesday and tried to commit suicide Tuesday night. I also called my parents and good friends and told them I was taking my life. I took a bottle of pills and hoped I would die on my bed. My sister somehow got me up but I told her I was going to get in my truck and drive into a tree. As I tried to open the garage door, my sister kept closing it. Eventually I was able to drive my truck through the door, drove as fast as I could - about 150 yards about 7:30 pm at night so all the neighbors saw - and drove into a pile of rocks. I don't remember any of this; I don't remember anything until I woke up in the hospital…

"My truck rolled and landed on top of me; luckily the paramedics were called immediately. They performed CPR all the way to the helicopter pad and I was flown to hospital, where I spent several days in a morphine state. I was not expected to survive.

"After my 12 weeks of family medical leave was up, I was terminated - on December 1, 2009. I didn't get disability insurance until March 2010. I am still on unemployment but recently got hired back with the same company for less than half of my wages: I was making $20 per hour and now I am making $9.25.

"Apparently, they were legally able to terminate me, but I'm going to hear what my California labor law attorney, Morris Nazarian, says. He is working on a contingency basis and is in the process of filing a harassment and hostile work environment lawsuit against the company. I am hoping to get justice from this lawsuit.

"I have 30 years of experience in this industry and what they allowed to happen is not right; people should not be allowed to say things about your sexual orientation. I think I was picked on because I tend to be more sensitive and I am also old enough to be their fathers, most of them anyway. And I think a lot has to do with my experience and management training - these young supervisors (my immediate supervisor was 31) didn't know how to deal with these situations and I warned them that they could be held liable.

"Since this happened, I've become very guarded when it comes to trusting people. Some of my friends and family have suggested that I drop this case because of the stress it will cause me, and it is very unlikely that it will settle right away. But it's a matter of principal more than anything else."

Steve is right, and he is standing up for his rights. Employers - and anyone for that matter - should be aware of the California labor code and they shouldn't get away with these violations; they have no idea how a hostile work environment, harassment and wrongful termination can destroy people's lives.

Was Worker's Death Due to Ignorance of California Labor Laws?

San Francisco, CA The very premise of California labor law dictates a number of assumptions: that workers will be paid fairly, that they will be properly trained, and that they ultimately have a safe environment in which to work. The latter tenet appears to have been lacking in 2008 when a young mother met a horrible death at a California printing plant.

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.

Carwash Owners Sued by State for Violating California Labor Law

Los Angeles, CA The owners of a posh Hollywood restaurant are being accused of violating California labor law in connection with eight carwashes they also own.

California Attorney General Jerry Brown filed the lawsuit against the Sikder family, claiming that they denied workers at the carwashes minimum wage and overtime pay, did not pay wages owed to those who quit or were fired, failed to provide rest and meal breaks, and falsified time sheets, according to the Los Angeles Times.

The lawsuit is seeking $6.6 million in lost wages and civil penalties from the defendants, who also run the popular Koi restaurant in Hollywood.

"While Koi served up yellowtail tartare and Kobe beef carpaccio to Hollywood celebrities, the restaurant's owners routinely denied wages, breaks and overtime pay to workers at their unlicensed carwashes," Brown said in a statement.

In one instance cited by prosecutors of the alleged misconduct, the owners of the carwashes failed to pay a nearly $15,000 court judgment to two of its employees that had been handed down more than three years ago.

Brown is the Democratic nominee in the California governor's race, which will be decided in November.

Disease Discrimination Exists in the Workplace

Los Angeles, CA A California police officer recently filed a lawsuit against the City of Los Angeles alleging discrimination on the part of the Los Angeles Police Department (LAPD). Malcolm Thomas's California labor lawsuit was augmented by charges that his employer discriminated against an injury he suffered on the job. Instead of making allowances for Thomas's injury, his employer allegedly put him in situations that proved to aggravate the injury.

In May 2008 Thomas injured his knee while on duty with the LAPD. He claimed that his sergeant, rather than extend an expression of sympathy, held the injury against him and required him to undertake activities that worsened his injury. Thomas alleged to have suffered other forms of discrimination in the workplace as well, including racial discrimination.

The plaintiff won a judgment nearing $706,000.

In an unrelated case, the US Equal Employment Opportunity Commission (EEOC) launched a complaint against DynMcDermott, a privately-held corporation that provides maintenance and operations services for the Strategic Petroleum Reserve managed by the US Department of Energy on behalf of Philip Swafford.

As outlined in a 8/26/10 release by the States New Service, Swafford had applied to DynMcDermott for a position he had previously held with the company. He interviewed and was recommended for the position by both his former supervisor and the manager in charge of hiring for the position. However, the facility's director, who had ultimate authority, stated on at least two occasions that Swafford should not be hired because of his age (56 years) and??"incredibly??"because his wife was suffering from cancer. The director assumed that Mrs. Swafford's condition would interfere with her husband's capacity to perform his job duties.

The EEOC alleged that DynMcDermott's unwillingness to hire Swafford because of his age and his wife's condition violated both the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act. DynMcDermott ultimately hired a 35-year-old applicant with no prior experience with the company.

In a separate EEOC complaint, the commission alleged that Jeff Rose was unjustly terminated from his job at ENGlobal Engineering Inc. because the company regarded him as disabled. The complaint holds that Rose had worked for the company for two weeks when, without prior warning and unbeknownst to him, he began developing symptoms of multiple sclerosis (MS). Rose quite properly reported the matter to his superiors and kept his managers informed.

However, as the manager learned more about Rose's condition and realized that he faced a potential MS diagnosis, the manager searched for a replacement and urged Rose to take medical leave despite the fact that he could continue working. After taking medical leave at his manager's insistence, Rose presented the company with a doctor's note stating that he had clearance to return to work. Although his position was available, ENGlobal human resources manager falsely told Rose that it was not. Further, although the human resources manager then told Rose that the company would try to find him another position within the company, it took no such action.

Three weeks later, the company hired another individual for Rose's job. It is the EEOC's position, stated States News Service, that ENGlobal's management violated the ADA by incorrectly and impermissibly viewing Rose as substantially limited in his ability to perform the work of any job within the company.

Such violations are unsavory acts of discrimination against individuals who suffer injury or disease through no fault of their own. So long as disease does not impact an individual's ability to perform his or her job, it is unlawful to deny such individuals the opportunity to work.

Hands in the Tip Jar—Violation of California Labor Law

Los Angeles, CA: Cheryl and her co-workers at the dog grooming salon suspected some time ago that their boss was taking a good chunk of their tips, but after Cheryl heard about the Starbucks settlement (the company was ordered to pay back more than $100 million to California baristas), she realized her boss was ripping them off. California labor law prohibits managers and supervisors from sharing in employee tips.

"Last month I groomed dogs for two clients who I know leave big tips but I didn't see a cent," says Cheryl. "I don't see the tips??"the boss is in charge of all the payments so he can lie to us and do whatever he wants. Last week the same clients came back and I groomed their dogs again. This time, however, the boss had gone out and I saw their files; the manager helped me find them. (I just called a few lawyers to see if it is legal for us to look at the clients' payments??"I haven't got answer yet).

"Anyway, my suspicions were confirmed. Both clients paid their bills with two separate payments, on the same credit cards: one payment was the amount of grooming and the second payment was the tip of $40. Twenty dollars was my tip and the other half should have gone to the manager, who did half the grooming with me. And we aren't the only ones who are getting cheated. Unfortunately, my manager is afraid to confront the owner.

"Last Christmas the boss kept our tips for two months and gave them to us at his own discretion as a bonus. 'That's your bonus, money I have been collecting out of the tips, from credit cards and cash,' he said. He decided, by how many hours we worked, how much money we would get. I got $235, which is likely a lot less than I am owed.

"He divided the tips between five of us: I know that one co-worker got over $300??"he told me so, and he suspected all along that the owner was stealing our tips; now we all believe that he is also pocketing some of our tip money.

"Granted, some people don't tip at all and others are very generous; it's a real crapshoot. But the amount of money he finally gave me isn't my complaint. We are supposed to get those tips within the next pay period. Period. It is not up to the owner to decide when and how to distribute those funds.

"I have decided that I want to let him know he has violated the law. He has to keep an accurate record of every tip given to every groomer. I called the California labor board for advice and they said I need to have records regarding how much I didn't get.

"I am going to keep records of every dog I groom and client phone numbers and I will ask the boss every day how that person paid and what tip they paid. After a few months, when I have sufficient information, I will take action.

"A previous employee already tried to sue him. She was abusive and volatile to us and everybody asked the boss to fire her, listing all the reasons why. I said I would quit if he didn't fire her. I quit??"she was a danger and a liability to the business. Two weeks later she faked an injury and they had to pay workers' compensation. Then she tried to sue the owner for tips she didn't get. She wasn't smart and didn't keep records: the judge threw her case out: she tried to sue for $7,000. But the owner was sweating bullets and we couldn't figure out why??"that's when we clued in! (And I got my job back.) He was so sick from stress and we couldn't understand why he was so worried.

"I'm a tough cookie; everybody who was a good groomer has quit but I am going to hang in here and document the evidence so I will have some recourse. And I want people to know what is happening and that it is illegal to take tip money."

The Starbucks lawsuit focused on a section of California Labor Code regarding the payment of tips to employees and the practice of tip pooling. Labor Code Section 351 says, "No employer or agent shall collect, take or receive any gratuity or a part thereof that is paid, given to or left for an employee by a patron," and Labor Code Section 350 defines "agent" as "every person other than the employer having the authority to hire or discharge any employee or supervise, direct or control the acts of employees."

Updated California Labor Code Tested, Settlement Reached

Los Angeles, CA A 2004 addition to the California labor code underwent its first true test this month with the announcement of a settlement that will see employees of a subcontractor receive compensation for deprivation of contributions to social security, disability and unemployment insurance.

More than 200 employees who worked for subcontractors under Tidy Building Services Inc. will receive between $100 and $2000 in compensation.

According to the 2/9/10 issue of the Business Wire, California Labor Code Section 2810 addresses the particular problems faced by low wage workers in the janitorial, construction, security guard, farm labor and garment industries??"sectors often dominated by immigrant workers, who are particularly vulnerable to violations of wage and hour laws.

In this case, the contractor, Tidy Building Services Inc., was found to have provided inadequate funding to subcontractors in order to ensure that employees received full benefit of employment laws and regulations, not to mention allowing the subcontractors to comply with same.

Although Tidy Building Services Inc. is based in New Orleans, the settlement is the result of charges that California Labor Commissioner Angela Bradstreet filed in San Diego Superior Court.

"This settlement sends a strong message that my office will aggressively pursue contractors who seek to gain an unfair advantage by underfunding subcontracts," said Bradstreet. "The subcontractors get squeezed, the workers don't get paid, and law-abiding contractors lose out as well through unfair competition."

The action was the state's first lawsuit aimed at enforcing Labor Code Section 2810. Tidy Building Services Inc. has agreed to pay the state of California the sum of $100,000 on behalf of employees who worked in janitorial services in San Diego County and the Los Angeles area.

Labor Code 2810 was designed to spread the responsibility for systemic violations of minimum labor standards by making those entering service contracts responsible for fully and accurately estimating service contract performance. The cost of labor law compliance must be incorporated into the contract price paid.

While contractors may approach tenders with low bids to secure a job, the bid is often so low that the contractor cannot afford to uphold the provisions of California labor law, thus under-funding subcontractors.