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Will Paid Sick Leave Spur California Labor Lawsuits?
If an employer denies an employee accrued paid sick leave and/or retaliates in any way when an employee tries to use paid sick leave, that employee can now file a labor law complaint with the California Labor Commissioner’s Office. After a complaint is filed, the Commissioner’s Office has the authority to investigate the complaint and determine if damages and penalties will be awarded.
Many of those 6.5 million workers (about three-quarters of the state’s low-wage workers) who will benefit from this new law for the first time are parents who have to take care of their children. Too often children would show up at school sick because the (often single) parent feared getting fired if they didn’t show up at work. Having to send a sick child to school or leaving a sick child at home alone is heart-wrenching. Hillary Clinton said that no one should have “to choose between keeping a paycheck and caring for a new baby or a sick relative.”
And many employees who were never given paid sick leave, or any paid time off, are workers earning minimum wage. People in restaurants and retail who are barely scraping by and go to work sick (yes, the person who cooked your food could have the flu). Assembly member Lorena Gonzalez, D-San Diego, said that “We just want employers to know it’s not an option, and employees can’t be penalized for using their paid sick days. They can’t be fired or have their hours cut. It’s important for them to know they have the right to earn these paid sick days.”
The new law is complicated, and another reason why paid sick leave complaints may spur lawsuits. But every employee should know their rights and exactly what is covered. In a nutshell, for each 30 hours that somebody works, they get one hour of sick leave. The AB 1522 says that businesses will be required to show how many hours of paid sick leave workers have earned on their pay stubs. Employers can either choose to have workers accrue one hour of paid sick leave for every 30 hours worked, or grant employees three days of paid sick leave upfront, to be used within a one-year period.
Every business is required to provide this benefit, even if it only has one employee. Whenever possible, employees must provide “reasonable advance notification” orally or in writing of their desire to use the leave when the need for sick leave is foreseeable. Of course you can’t always know beforehand when you will be sick but you can also use sick leave for the following:
• the diagnosis, care or treatment of an existing health condition
• the preventive care of an employee
• an employee’s personal family member (including spouses, registered domestic partners, children, parents, grandparents, and siblings)
• employees who are victims of domestic violence, sexual assault, or stalking
If they haven’t done so already, employers might want to familiarize themselves with the new paid sick leave law and revise their policies and procedures. And employees shouldn’t rely on their employers to explain their benefits.
California Labor Paid Sick Leave Laws Clarified, Still Complicated
In sum, The Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) was signed into law by Governor Jerry Brown last year for a planned two-stage implementation at the beginning of 2015. Various changes to record keeping and the posting of notices were brought in at the first of the year, followed by the implementation of changes to accruals and reporting on July 1.
The aforementioned changes to the California labor code were part of the original adoption of AB 1522. However, employers found the rollout somewhat overwhelming, requiring an update to AB 1522 in an effort to straighten out some of the confusion.
That update came in the form of AB 304, a bill that Governor Brown swiftly signed into law on July 14 and is effective immediately. The amendments provide some clarification with regard to compliance over payments, provisions for time off and so on. The clarifications are important not only for the employer - in order to properly comply - but also the employee, for whom a basic understanding of the new provisions is important in order to identify whether or not an employer is properly conforming to the new guidelines.
One of the clarifications with regard to California and labor law stemming from the quick passage of AB 304 has to do with record keeping: while an employer can know the reason(s) and purposes for which an employee uses paid sick time, there is no requirement in record-keeping protocols for maintaining documentation to that end.
Were an employer to maintain documentation with regard to the purposes for paid sick leave, or were an employee to find himself getting stiffed on sick pay and sick leave, he needs to be able to identify incidents of noncompliance in order to initiate and pursue a California labor lawsuit, as required.
AB 304 clarifies protocols for calculating paid sick leave, and the employer now has two options for doing so: 1) a calculation formula akin to the regular rate of pay for overtime calculation for the workweek in which paid sick time is used, and 2) the original calculation protocol dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
The July 14th amendment also provides for alternate accrual methods beyond the formula of one hour for each 30 hours worked, provided the accrual is on a regular basis and the employee will have 24 hours of paid sick leave available by the 120th calendar day of employment.
There is also clarification, for the purposes of California labor employment law, with regard to the right an employer has in limiting an employee’s use of paid sick days to 24 hours or 3 days either: (1) in each year of employment (by anniversary year, for example); or (2) in each calendar year; or (3) in any specified 12-month period.
Among other provisions in AB 304 is clarification over the requirement that an employee, to be eligible for paid sick leave, must be in a position to have worked for the same employer for 30 days, as opposed to simply working for any employer in the state of California.
There is a somewhat complicated grandfather clause for those employees who were provided paid sick leave or paid time off prior to the implementation of AB 1522 at the first of the year, and for whom a different method for accruing sick time may have been used. This clause allows for a more gradual accrual, provided the employee accrues eight hours of paid sick leave in the first three months of employment and was eligible to earn 24 hours of sick leave or paid time off within nine months of employment.
At the end of the day, California state labor laws are intended to level the playing field and provide fairness for the employee. A mutual understanding of California employee labor law is an important prerequisite for the employer to properly implement new laws, and for the employee to understand when those statutes are being accidentally or purposefully circumvented…
Respecting Caitlin Jenner and Her Community Under the Law
For some time now, California labor law has protected transgendered individuals from discrimination and harassment. However, a decision by the Superior Court of California, County of Sacramento last spring held that denying transgender employees the right to use gender-identity appropriate facilities remains a violation of the state’s anti-discrimination laws, and other statutes entrenched in the California Labor Code.
That decision, released in March of 2014, held that transgendered employees in the state of California have the right to use gender-identity appropriate change room and washroom facilities in the state of California. Various other states have enacted similar updates to their laws.
Now, the Feds have finally entered the pool with an update to federal codes that mirror California and labor law, as well as similar laws in other jurisdictions related to transgendered individuals.
To that end, the Occupational Safety and Health Administration (OSHA) on June 1 published A Guide to Restroom Access for Transgender Workers.
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, in a released statement. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”
The guide itself is detailed, but in sum, the rule is stated simply thus: if a female has transgendered, either emotionally or physically (or both) to male and therefore identifies as male, then that individual has the right and freedom to use the men’s washroom.
The same holds true for Bruce Jenner, who now identifies as Caitlin. It wasn’t that long ago that Jenner was being interviewed on national television about his story and his ongoing transition to female, the gender to which Jenner now identifies. This week, the release of the Caitlin Jenner photo shoot for the cover of Vanity Fair is a stark representation of what Jenner was revealing just a few weeks ago.
Therefore, applying the Bruce Jenner/Caitlin Jenner example to the rule of law, Bruce Jenner identifies as female now (as Caitlin Jenner) and thus, has the right to use the women’s washroom.
The OSHA guide, and the corresponding law, is founded upon the core belief that all employees in the workplace should be permitted, without retaliation, use of the facility that best matches his or her gender identification. At the end of the day, however, the OSHA guide notes that the employee should determine “the most appropriate and safest option for him - or herself.”
OSHA also identifies best polices that provide additional options that transgendered employees may choose, but are at the same time not a requirement. Such options, as available, could include: “Single-occupancy gender-neutral (unisex) facilities, and: Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities,” states the guideline. “In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.”
The guidelines also speak to the existence of local and state laws and statutes, such as California labor employment law, about which all employees should be conversant.
To summarize, transgendering has long passed the signpost of sensationalism. Rather, gender identification in any form has progressed from tolerance to widespread acceptance; and yet another indication of this is the release, this summer, of Becoming Us, an unscripted “docuseries” on ABC Family, documenting the life of 17-year-old Ben Lehwald of Evanston, Illinois. In the series, which is produced by Ryan Seacrest Productions, Ben’s father Charlie transitions to Carly. The narrative is told from Ben’s perspective as he watches his dad go through his divorce from Ben’s mom Suzy, before undergoing gender reassignment surgery.
In the grand scheme of things, washroom assignment (or reassignment) should be the least of a transgendered individual’s worries. Nonetheless, it is an issue that many states have been grappling with for some time - including California and labor law observed by the state. Now, the Department of Labor through the OSHA guideline will ensure that the rights of everyone are quite properly observed and respected behind the washroom stall.
Caitlin Jenner will use the women’s washroom. It’s only appropriate. And it’s also the law.
Silicon Valley Sexual Discrimination
Since Ms. Pao filed a sex-discrimination lawsuit against Kleiner Perkins in 2012, she has received much support in the tech community, telling The Wall Street Journal (April 6, 2015) that “you can’t just hide” from the problem of workplace sexism and that Silicon Valley must continue to work on the issues brought up in her loss.
On March 27, jurors in Superior Court in San Francisco found that the venture capital company did not discriminate against Ms. Pao, who was asking for $16 million in compensatory damages plus punitive damages. Despite her losing the case, legal experts predict more sexual discrimination lawsuits.
Ms. Pao, currently the interim chief at the social media news site Reddit, told the Los Angeles Times that many women she didn’t know shared their own experiences with sexual discrimination, many of whom had never shared their stories with anyone else.
When it comes to gender inequality, the TV series Mad Men could be scripted in present day Silicon Valley. (Last night’s episode saw female characters Joan and Peggy endure sexual harassment at work by men behaving very badly.)
Facebook lawsuit
A former Facebook manager accused the company of discrimination, harassment and retaliation because she is a woman and of Taiwanese descent. Lawless & Lawless, the same law firm that represented Ms. Pao, brought the charges against Facebook after Chia Hong was terminated. The Los Angeles Times said the lawsuit claims Facebook officials asked Hong “why she did not stay home and take care of her children,” and regularly ignored or belittled her professional opinions at meetings where she was one of few women. According to Hong, she was replaced by a man who was less qualified and less experienced.
Twitter lawsuit
In the discrimination lawsuit against Twitter, former engineer Tina Huang makes the same claims that Ms. Pao made about Kleiner, i.e., the promotion process is unclear and is biased in favor of men. Both Facebook and Twitter said they are committed to a supportive and diverse workplace.
Statistics show otherwise. In a fall 2013 report, the US Census found that “women’s representation in computer occupations has declined since the 1990s,” with women filling just 22 percent of software developer jobs. Venture capital numbers are even lower: according to a study from Babson College, the share of women partners in venture capital firms declined to 6 percent in 2014, from 10 percent in 1999.
Lessons learned
Deborah Rhode, a law professor at Stanford University, said the Pao case “sends a powerful signal to Silicon Valley in general and the venture capital industry in particular...Defendants who win in court sometimes lose in the world outside it.”
And the International New York Times (April 1, 2015) pointed out that, after Kleiner Perkins emails were read during testimony, be careful what you write. Apparently sexist e-mails abruptly stopped circulating with the much-publicized lawsuit and another venture capital firm said they will have a human resources employee with explicit policies. Lastly, the New York Times reported that a third venture capitalist was “rethinking whether he had turned away female entrepreneurs too quickly in the past.”
Silicon Valley Close to Settlement
Google, Apple, Intel and Adobe have now offered $415 million to settle accusations that they had conspired against their own employees, according to the New York Times (Jan. 14, 2015). This settlement proposal has increased from an earlier offer of $324.5 million, an amount that U.S. District Judge Lucy Koh rejected last August, when she agreed with plaintiff and former Adobe engineer Michael Devine. He protested the amount, arguing that it wasn’t enough money given the wealth of the companies and the scale of their collusion - their “non-poach” agreements. Devine, who is one of five named plaintiffs in the class-action lawsuit, did the math and figured that affected workers would end up with only a few thousand dollars each.
This new settlement amount is still pocket money to the silicon giants, but Devine said it is “at least in the right ballpark.” Pundits say it would be in their better interests to settle rather than go to trial. The latter might tarnish their reputations as forward-thinking and worker-friendly and caring empires.
Of course there is a chance that plaintiffs might lose if it goes to trial. And it’s a big gamble for their lawyers whose share in the settlement could be as much as 25 percent. If they lose at trial, attorneys’ years of hard work goes down the drain. On the other hand, a jury could award the plaintiffs a few billion dollars. Earlier, lawyers estimated that damages were $3 billion, an amount that would be tripled after a guilty verdict, reported Reuters. The case is slated for a trial this spring in San Jose.
This complaint goes back to 2005, when Apple co-founder Steve Jobs asked Google CEO Eric Schmidt to stop poaching Apple workers. In the lawsuit, plaintiffs used the deceased Jobs’ e-mail to Schmidt as evidence that they agreed not to steal each other’s employees by offering them lower wages to discourage them, according to USA Today. And Intel even had a written document regarding a non-poach agreement with Pixar, where Intel’s policy was to not hire any Pixar employee without the Pixar CEO’s approval.
In 2011, after a Justice Department investigation, antitrust complaints were lodged against Google, Apple, Intel, Intuit, Adobe, Pixar and Lucasfilm. All companies paid a combined settlement of $20 million, but one Inuit employee told USA Today that he only received $1,000 - not enough to pay for a vacation in the Caribbean that he had been hoping for. Perhaps this settlement will allow workers to have their days in the sun.
Bad Apple in California Labor Pool
The California labor lawsuit was originally filed back in 2011 by several former employees at the Cupertino Apple store, who alleged that Apple did not provide “timely” rest brakes, meal breaks and final paychecks. It was certified as a class action in July, and at the end of November, Apple’s appeal to dismiss the suit was dismissed.
“The petition for writ of mandate, informal response, and reply have been read and considered by Justices Nares, McDonald, and O’Rourke. The petition is denied,” stated a filing from the Superior Court of Appeal in San Diego, according to PCMag (Dec. 5).
This isn’t the first time Apple has been accused of violating the California labor code. Last year a wage and hour class-action suit claimed that Apple store staff are not paid for the time they spend undergoing bag searches, as required by the company’s policy. The plaintiffs claimed they had to wait in lines every day, sometimes up to 30 minutes, so that store managers could check their bags to ensure they weren’t stealing.
And back in 2009, former Genius Bar employee Steve Camuti filed a California labor lawsuit claiming that Apple failed to provide employees with breaks. The Camuti lawsuit was not certified as a class action. According to San Diego attorney Tyler Belong, that could have been due to its timing. Belong told PCMag that a California Superior Court ruling in a landmark case involving restaurant workers and rest breaks, made after the Camuti suit, “opened the door” for class actions like this latest class. The Camuti lawsuit alleged that California overtime was due to employees from 2004 onwards. It claimed that Apple “has enjoyed an advantage over its competition and imposes a resultant disadvantage on its ‘Genius’ employees by failing to authorize, permit, and provide statutorily mandated rest breaks as required by law.”
An ex parte hearing was slated for December 9, and a civil hearing set for April 2015, according to appleinsider. Plaintiffs’ attorneys are seeking damages and restitution of all monies due to plaintiffs from unlawful business practices as pursuant to 10 California Labor Code sections. The case is Felczer et al vs Apple Inc., case number 37-2011-00102593-CU-OE-CTL, in the Superior Court of California, County of San Diego.
Wrongful Termination Lawsuit Filed in California
According to Bloomberg (1/10/14), Ian Spandow, who is from Ireland but working in California for Oracle on an L-1 visa, was a senior regional manager in database sales. His lawsuit claims that when he tried to transfer an Oracle employee in India to California and requested the employee be paid what white employees were paid, Spandow was told to offer the employee less money.
When Spandow complained about that directive, he was allegedly fired. Spandow alleges his firing constitutes unlawful discrimination based on national origin and further alleges he was fired in retaliation for complaining about how he was told to treat the employee from India.
Although employees can have their employment terminated for no reason, it is illegal to fire someone for discriminatory reasons, such as national origin, race, religion and sexual orientation. Furthermore, it is illegal to fire someone in retaliation for complaining about working conditions, including unsafe conditions or issues with pay.
In December 2013, a former employee for PG&E was given a $1 million award in his wrongful termination lawsuit. The plaintiff, a former power line worker, alleged he was fired from his job for complaining about unsafe working conditions. According to the Santa Cruz Sentinel (12/16/13), Matthew Niswonger had been told by supervisors that he and his team had to replace a broken electrical pole without shutting down power.
Although no one was hurt during the work, Niswonger says there were close calls and he later learned that one other crew turned down the job because they felt it was too dangerous. Subsequent work done by other crews on the same pole was done with the power off. Niswonger complained about safety issues at work and, in September 2011, was fired.
The jury found in favor of the plaintiff and awarded him almost $600,000 for lost wages and benefits, and another $500,000 for emotional distress. A spokesperson for PG&E, however, has said the company will file post-trial motions.
The lawsuit is Spandow v. Oracle Corp., 14-cv-00095, in the US District Court, Northern District of California (San Francisco).
California Labor Law: High-Tech Firms Allegedly Violated Antitrust Laws
According to the Daily Reporter (4/5/13), the lawsuits were filed against Apple, Google and other high-tech companies, and alleged the technology firms worked together to prevent employee wages from rising and further to stop employees from leaving their employers. Among the allegations are that the firms enacted an anti-poaching provision, preventing other firms from approaching a company’s top employees. Furthermore, the lawsuits allege, workers who approached other companies for employment were turned away if they were already employed by one of the companies involved in the scheme.
Plaintiffs, software engineers who worked for the defendants, argue that the anti-poaching provisions prevented employees from finding higher-paying employment at other companies and artificially diminished demand for their services, which then kept their wages down because it was more difficult for the employees to undertake negotiations for better salaries. The lawsuits sought class-action status, but a judge recently determined that the individual circumstances of each employee were too different to allow for a class complaint.
An investigation by the US Justice Department resulted in a settlement with some of the companies involved in the lawsuit, although the companies did not admit wrongdoing.
Business Insider (4/6/13) reports that other firms involved in the lawsuits include Intel, Adobe, Intuit, Pixar and Lucasfilm. Although the judge denied class-action status, lawyers for the plaintiffs have the opportunity to request class-action status again, but with a more narrowly defined group.
The companies tried last year to have the lawsuits dismissed, but according to Reuters (4/19/12), Judge Lucy Koh, rejected that bid, finding that the six agreements were identical and reached in secrecy, indicating they were the result of collusion and not coincidence.
The case is In re: High-Tech Employee Antitrust Litigation, District Court, Northern District of California, No. 11-02509.
Meanwhile in a different lawsuit, a settlement has reportedly been reached between Tata Consultancy Services Inc and employees from India, who alleged they were forced to give their employer their tax refund checks. Thomson Reuters (4/9/13) reports that the settlement will see the defendant, who has admitted to no wrongdoing, pay $29.75 million.
The case is Gopi Vedachalam and Kangana Beri v. Tata Consultancy Services and Tata Sons, U.S. District Court for the Northern District of California, No. 06-00963.
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.
California Labor Law: Work-related E-mails Trump Client-Attorney Privilege
The case of Holmes v. Petrovich demonstrates the importance of an employer's well-written communications and computer policy, and at the same time, how it would also benefit an employee to brush up on company policy before, say, sending e-mails to your attorney about perceived harassment and discrimination in the workplace.
In June 2004, Gina Holmes, the plaintiff, was hired as an executive assistant for Paul Petrovich and Petrovich Development Company, LLC, the defendant. About one month later, Holmes told Petrovich she was pregnant and requested a six-week maternity leave in December, which she later revised to a request for a four-month maternity leave starting in November. Petrovich wasn't thrilled with this news.
Petrovich and Holmes exchanged a number of e-mails, with Petrovich saying that he felt taken advantage of, but at the same time, he did not intend to violate any laws. (Discrimination due to pregnancy is in strict violation of the California labor law.)
Petrovich's e-mail to Holmes said that "I need some honesty. How pregnant were you when you interviewed with me and what happened to six weeks? . . . That is an extreme hardship on me, my business and everyone else in the company. You have rights for sure and I am not going to do anything to violate any laws, but I feel taken advantage of and deceived for sure."
In her e-mail to Petrovich, Holmes explained that she didn't tell him about her pregnancy sooner because she had previously had two miscarriages and wanted to make sure that this time the baby would be carried to term.
Holmes also e-mailed an attorney from her work e-mail account indicating that she felt she was working in a hostile environment and also e-mailed Petrovich to inform him that his feelings regarding her pregnancy left her with no alternative but to end her employment.
But Petrovich was concerned that Holmes would quit and had already forwarded her e-mail to HR??"before she gave notice.
Next up, Holmes filed a suit for sexual harassment, retaliation, wrongful termination, violation of privacy rights and intentional infliction of emotional distress.
The Trial
At trial, the jury was shown several e-mails between Holmes and her attorney. Holmes argued that these e-mails were attorney-client privileged. The trial court, however, ruled that Holmes's e-mails, sent on a company computer, were not protected by the attorney-client privilege because they were not private; furthermore, company policy was in black and white and stated that:
- Company technology resources should be used only for company business and employees are prohibited from sending or receiving personal e-mails;
- Employees have no right to privacy for personal information created on company computers;
- E-mail is not private communication;
- The Company may inspect all files or messages at any time; and
- The Company would periodically monitor technology resources for compliance with Company policy.
Holmes sent the e-mails to her attorney even though she had read and signed the company's express computer technology resource policy that governed her usage of the company computer and e-mail account, after she was hired. Specifically,
- She had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail;
- She had been warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages ... at any time;" and
- She had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message."
After the Sacramento Superior Court, Judge Chang, granted summary adjudication on the discrimination, retaliation, and wrongful termination causes of action, a jury found for the defendants on the two remaining causes of action, i.e., violation of the right to privacy, and intentional infliction of emotional distress. Holmes appealed, and the Court of Appeal affirmed.
On appeal, the court described the communications as "akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."
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