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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.
Insurance Lawsuits Allege ERISA Violations
Los Angeles, CA: A "California ERISA lawsuit has been filed against Blue Shield of California Life and Health Insurance Co., alleging the insurer violated ERISA laws by wrongfully denying necessary medical treatment. The lawsuit joins other lawsuits filed against various insurers alleging they are wrongfully denying hepatitis patients vital treatment.
According to reports, a lawsuit was filed by Aram Homampour, who says his doctor prescribed Harvoni to treat hepatitis C. Hepatitis C is a contagious blood disease that can cause serious liver damage. The Centers for Disease Control and Prevention estimate 15,000 people in the United States die each year from hepatitis C-related liver disease. Harvoni, approved by the US Food and Drug Administration (FDA) in 2014, has about a 95 percent cure rate and comes with very few side effects. The problem, however, is the cost: a 12-week treatment program of Harvoni costs around $99,000.
Lawsuits filed against insurers allege the insurers are wrongfully denying Harvoni treatment to save money. The denials are reportedly given because insurers claim patients’ livers are not sufficiently damaged to warrant treatment with Harvoni.
In his lawsuit, Homampour alleges Blue Shield violated the Employee Retirement Income Security Act (ERISA) because it used internal policies to overrule a doctor’s determination of appropriate medical treatment. Homampour claims Blue Shield is forcing him to live with a serious health problem and related issues until his liver becomes sufficiently damaged enough to approve treatment.
Homampour’s lawsuit seeks class-action status for any patient whose Harvoni claims were denied by Blue Shield for reasons linked to medical necessity or experimental treatments.
A different lawsuit also alleging violations of ERISA linked to Harvoni treatment was filed in July against Anthem Blue Cross, as reported by Gordon Gibb for LawyersandSettlements. According to reports, Marina Sheynberg filed her lawsuit after her Harvoni treatment was denied because the treatment was not deemed medically necessary by the insurer. Sheynberg alleges she was told her test results showed that her liver damage was not significant enough to qualify for coverage of the Harvoni treatment. Sheynberg’s lawsuit also seeks class-action status and an injunction requiring Anthem to reevaluate denied Harvoni claims.
The Blue Shield lawsuit is Homampour v. Blue Shield of California Life and Health Insurance Company, case no 3:15-cv-05003, US District Court of California, Northern District.
California OSHA Labor Lawsuit Seeks to Hold Defendant to Original Settlement
Los Angeles, CA: A California whistleblower who sued his former employer over unsafe working conditions and won a settlement has yet to see a dime after his former employer folded the company and reorganized operations under a different name, allegedly to avoid complying with the settlement. Undaunted, the US Department of Labor has launched a California OSHA labor lawsuit against the former employer of Herbert Alexander.
Alexander, the whistleblower who brought a lawsuit alleging violations of statutes governed by the Occupational Safety and Health Administration (OSHA), complained to his employer following one of his runs as a trucker with the firm, that his rig was leaking oil, was fitted with bald tires and was infested with bedbugs. The trucker noted that he was forced to sleep in motels while on the road, in an effort to secure enough sleep to drive his rig safely.
When Alexander complained to his employer following his return from the road in July of 2013, he claims to have been effectively fired. Alexander claimed in his California OSHA whistleblower lawsuit that his employer docked his pay for the cost of repairs to the truck as well as his accommodations. Further, the company refused to provide him with additional routes, and thus the work dried up.
According to court documents, the defendant, Skyway Inc., entered into a settlement agreement with Alexander in 2013. However, it is alleged the settlement was never honored by Skyway Inc., which reportedly ceased operations only to be reborn under a different name, Skyway Group of Companies Inc. (Skyway Group).
Alexander, together with the US Department of Labor, holds that a company cannot escape a liability through a simple reorganization. “[Skyway Group] has the same owners and officers including [President Rajinder Banghu], operates for the same business purpose, using the same or a similar business model out of the Fontana truck yard, and the same corporate logo and motto as Skyway,” the complaint said. “As the alter ego and/or successor-in-interest to Skyway, Skyway Group is subject to enforcement of the Secretary’s final order, just as Skyway was and is.”
As part of the California OSHA lawsuit settlement, Alexander was to be re-instated as a driver with the firm, and to have his back wages paid. However, Skyway Inc. ceased operations and suspended its corporate registration for the state of California.
The DOL says the defendant cannot employ those changes as a viable reason to escape their obligation to their former driver, who feared for his safety and others on the road due to the alleged condition of the truck he was provided to drive by his employer.
The latest California OSHA lawsuit, filed by the Department of Labor on behalf of Alexander, seeks to hold Skyway Group to the original 2013 settlement that was allegedly never honored.
The case is Thomas Perez v. Skyway Inc., Case number 5:15-cv-01995, in the US District Court for the Central District of California.
Understanding California Family Medical Leave
San Francisco, CA: When it comes to understanding employment rights, areas such as family leave can be complicated. That’s because family medical leave is covered federally by the Family and Medical Leave Act but is covered in California by the California Family Rights Act. Ultimately, though, it means eligible employees are able to take up to 12 weeks off, paid or unpaid, for certain reasons.
Those reasons include the birth of a child, or adoption, or foster care placement of a child; to care for an immediate family member (that is a spouse, child or parent) who has a serious health condition; or for the employee’s own serious health condition. During FMLA/CFRA leave, the employee’s job is protected, meaning the employee is entitled to return to the same position of employment he or she had when the FMLA/CFRA leave began, or an equivalent position.
Those eligible for FMLA/CFRA leave include employees who have worked for the employer at least 12 months as of the start of the FMLA/CFRA leave and has worked at least 1,250 hours during those months, not counting sick leave, vacation leave or holidays. Under FMLA, employees must also work at a location with at least 50 employees within a 75-mile radius.
Employees who are eligible for leave under FMLA/CFRA but are denied that leave may be able to file a lawsuit against their employer for violation of these laws. Similarly, employees who take their leave but are not reinstated to their position (or an equivalent position) of employment may also be eligible to file a lawsuit.
There are situations in which employers can terminate an employee on FMLA leave, but in such cases there must be evidence that either the decision to terminate was made before the employee took the leave, or that the employee had been non-compliant or had serious on-the-job performance issues that existed before the leave was taken.
If those circumstances do not exist, employees may be able to file a lawsuit against their employer. Claims against employers can include interference, which is defined as refusing to authorize legitimate CFRA leave, discouraging an employee from taking CFRA leave and avoiding employer responsibilities under CFRA, according to The National Law Review (3/26/15). For example, an employer who reduced an employee’s hours of work so the employee is no longer eligible for CFRA leave could count as interference. Employers who discriminate against an employee for taking CFRA leave or who retaliate for taking CFRA leave may also face claims of interference.
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