Age-Discrimination Does Not Pay Off for Danaher Corp.

age-discriminationWhen her bosses told Codie Rael that she was a dumb female who was outdated and old culture, she got fed up and quit her job.  Then she filed a lawsuit against the company for age-discrimination. If you find yourself facing age discrimination, speaking to a local labor law attorney could open some doors for you.

Outcome of the Age-Discrimination Case

A jury found that Rael’s employers were malicious and oppressive, and hit them with a $31 million judgment: $3 million in compensatory damages and a whopping $28 million in punitive damages.

State and Federal Anti Age-Discrimination Laws

There are laws on the books protecting you from age discrimination in advertising for jobs, the application processes, hiring, offering promotions and training opportunities, and/or firing.  Compensation and working conditions cannot be assigned based on age, either.

Is it Age-Discrimination?

Proving age discrimination is getting tougher these days. Rael’s case was littered with overt age slurs, making it easier to prove that her age was an issue with her employers. Most employers are smart enough to know that making disparaging remarks about an employee’s age could get them into trouble.  

In past years, older employees who were let go as part of a reduction in staff could infer that age-discrimination was at the root of the termination. Recent court decisions have found that companies that are trying to reduce costs are within their rights to eliminate higher earning individuals—often those who are older. Reducing costs and age discrimination no longer go hand in hand. In order to win a discrimination case, employees must demonstrate that age was a central issue behind the firing.

If You Think You Have an Age-Discrimination Case

In the event you believe you have a case for age-discrimination, it is important to pay attention to timelines:

  • You have 300 days to file an age discrimination case with the U.S. Equal Employment Opportunity Commission (EEOC) if a state agency enforces anti-discrimination laws (California’s Fair Housing and Employment Act (FEHA) protects employees at work places that employ five or more people);
  • If you are filing suit under the Equal Pay Act, you have two years from the time of the incident to make your claim.

[Read more…]

Federal Court Supersedes California Immigration Laws

immigration lawsCalifornia immigration laws. When the Immigrant Worker Protection Act became law in January 2018, many hoped it would keep local immigrants safe from ICE agents and their workplace investigations. The feds have temporarily enjoined a number of the provisions in California’s law, however. So, where do things stand right now? A local labor and employment attorney might be worth consulting.

Assembly Bill 450

California’s bill, alternately referred to as AB 450 and the Immigrant Worker Protection Act, banned employers from cooperating with immigration agents in several ways:

  • Immigration enforcement agents were not be allowed access to areas of the facility that were not open to the public;
  • These agents were not allowed to obtain or view employee records;
  • Agents were unable to re-verify the Employment Eligibility Verification form (Form I-9), without a requirement by federal law.

Immigration Laws – New Federal Push

A new temporary injunction orders the state to stop impeding private business from cooperating with federal investigators looking into illegal immigration. The injunction prevents the state from putting restrictions on when and how employers can cooperate with ICE agents with regard to I-9 issues.

The impetus behind the federal push for relaxing state requirements on employers is based on the perceived “precarious situation” employers have been put in when crushed between state law and federal expectations. The federal intervention is designed to enhance cooperation between federal enforcement officers and business owners.

Additionally, the injunction was meant to address ambiguities within the California immigration laws, which do not provide a definition for who, exactly, is considered an immigration enforcement agent.  That has been problematic for employers who hire foreign nationals through the U.S. Citizenship and Immigration Service (USCIS), since that agency approves applications only in conjunction with the employer’s agreement to cooperate with record-sharing and premises inspections.  Backing out of that promise could lead to a number of problems, including:

  • Reviving particular immigrations cases;
  • Prompting larger investigations;
  • Rescinding the USCIS approval for foreign nationals.

What Parts of California Immigration Laws Still Stand?

According to the federal decision, the notice obligation for California employers remains intact. Employees must be told of I-9 reviews or other inspections related to immigration status within 72 hours of notification from ICE.

Consequences for Employers with Documentation Improprieties

When I-9 forms are not properly completed, employers are subject to fines of up to $2,191 per infraction. Knowingly hiring workers who are not authorized to work in the country can mean a fine of $16,000 per incident. [Read more…]

Pregnancy Discrimination Costs AutoZone Big Bucks

pregnancy discriminationA case of pregnancy discrimination. A San Diego AutoZone manager was told that she could not handle the responsibilities of management after becoming pregnant. Pressured to step down, she stood her ground. After having her child, she was subjected to a reduction in pay and a demotion, and was later set up to be fired. She did not take the alleged pregnancy discrimination actions sitting down. In the lawsuit that ensued against her employer, Juarez was vindicated and AutoZone learned an important lesson.

Pregnancy Discrimination, A Glass Ceiling for Women?

In her suit, she asserted that female employees are limited in their ability to be promoted. In fact, only about 10% of AutoZone stores in the San Diego area had female managers. During the trial, one man who had formerly been a district manager testified that he had been admonished for promoting too many women into management positions. He had been instructed to get rid of the women, as the company was not running a boutique. Another district manager was offered a promotion in exchange for terminating all females in the stores he managed. It would seem that in addition to pregnancy discrimination, all females’ jobs were in a precarious position.

Anti-Pregnancy Discrimination Laws

Gender bias laws have been on the books for decades. The Federal Pregnancy Discrimination Act of 1978 specifies that pregnant women should be accommodated in their jobs, in the same manner as an individual with a disability or who had experienced an injury. Providing light duty and making other reasonable adaptations for pregnant woman is required by law.

Additionally, California law bans workplace discrimination. Contrary to federal law, the state has no cap on awards for punitive damages and emotional suffering. In the Juarez case, the decision was made to bring the case to state court, arguing that Juarez was discriminated against under California’s Fair Employment and Housing Act.California law obligates employers to do the following:

  • Provide reasonable accommodations, such as allowing extra breaks, allowing employees to sit, and so forth;
  • Transfer pregnant employees to a lateral position to avoid strenuous or hazardous conditions;
  • Provide as much as four months of pregnancy disability leave (PDL);
  • Allow employees to return to their same position following PDL;
  • Provide appropriate lactation breaks following the birth of a child.

The Pregnancy Discrimination Judgment

The jury found in favor of Juarez, and the court upheld the verdict, awarding her nearly $875,000 in compensatory damages and $185 million in punitive damages. They found that AutoZone, had, indeed, discriminated, harassed, and retaliated against Juarez due to her pregnancy. [Read more…]

Subcontractors Cheating Employees. Who is Responsible?

subcontractorsIf you are an employee of a company that subcontracts services for another business, you may be interested to know that if your company fails to adhere to California laws regarding wages, breaks, and so forth, you may be entitled to damages from multiple sources. A case in point involves the Cheesecake Factory, which contracted with Americlean Janitorial Services Corporation for cleaning services. Americlean then hired subcontractors Magic Touch Commercial Cleaning. Magic Touch failed to pay minimum wages, denied workers rest breaks, and ignored overtime rules. When the California Labor Commissioner’s Office got wind of the problem, they wound up assessing the three companies for a combined total for $4.57 million in fines.

California Law Butts up Against Specifics of This Subcontractors Case

According to California law workers are entitled to specific rest and meal breaks, including:

  • A 10-minute break for every four hours on shift;
  • These rest breaks should be as close to the middle of the work period as possible;
  • They must be in addition to toilet breaks;
  • Meal periods must be provided for every five hours worked, and must be a minimum of 30 minutes long;

At three different California Cheesecake Factory franchises, cleaning personnel were required to work daily shifts without appropriate rest and meal breaks. They typically worked roughly 10 hours of overtime weekly, but were paid only a flat rate for eight hours of work each day.

Businesses are responsible for workplace violations committed by their subcontractors according to California law SB 588,  putting Cheesecake Factory, Americlean, and Magic Touch all in a precarious position. Workers received almost $4 million. Liquidated damages were calculated based on the money underpaid in wages plus interest, in addition to a full hour of pay for each day workers were denied their 10-minute rest breaks. Furthermore, the companies shared over $500,000 in civil fines.  

Thanks to SB588, big corporations can no longer hide behind contracts with smaller companies. When violations occur under their umbrella, they share in culpability with their subcontractors. The Labor Commission is streamlining procedures to speed up collections on unpaid wages. Employers are now required to post bond for and judgments related to these liabilities, and get the employees paid. [Read more…]

Labor Dispute – McDonald’s Brand Scrutinized

labor disputeLabor dispute; joint employer or franchise? After years of complaints and protests against low wages and other labor issues, the National Labor Relations Board (NLRB) eventually issued grievances against McDonald’s in 2015. Wage and labor complaints from multiple franchises in California cities and others across the country were consolidated. Beneath all the labor issues lies the question, is McDonald’s USA a joint employer of franchise employees, and therefore responsible for the treatment of employees at individual franchises?

Labor Dispute Issue

The central problem in the lawsuit surrounds franchise operators’ response to employee demonstrations. McDonald’s workers claim they were fired after participating in protests organized by a labor advocacy group called Fight for $15. According to the group, workers across the country lost their jobs simply for participating in these protests.

The Lawsuit

So who is responsible for the actions of individual franchises? Does the mother corporation hold any liability when their franchises are found guilty of labor or safety violations? What implications would a decision one way or the other have on the way business is conducted across the nation?

McDonald’s argued that it simply rents out its brand to individual franchises, and every franchise is an independent business. Policies are particular to each business, and are out of the corporation’s hands.

Conversely, the NLRB hoped to expand the joint employer doctrine, extending liability to corporations to whom they franchise their brands.

Many observers felt that a ruling against McDonald’s—naming it as a joint owner–would increase franchisors’ vulnerability to legal action, toppling the franchise model altogether. Anxious to avoid having to agree that it is a joint employer, McDonald’s agreed to a settlement in which they admitted no wrongdoing, but resolved claims with an undisclosed payout to employees.

Fight for $15 was not quite as eager to settle the case, arguing that McDonald’s needed to publicly take responsibility for surveilling, harassing and firing employees who were simply standing up for themselves against paltry wages by engaging in legally protected activity.

So how did the judge respond to the proposed labor dispute settlement?

Not so Fast…

Administrative Law Judge Lauren Esposito found that unfair practices by the McDonald’s chain were not adequately addressed, and the proposal was summarily rejected.

McDonald’s USA responded with disappointment, noting that expensive, time-consuming labor dispute litigation would extend for months or years to come. The possibility of an appeal of the court’s decision is being evaluated.

Fight for $15 was delighted with the labor dispute ruling, hoping to hold McDonald’s feet to the fire and force the corporation to take responsibility for the wages and working conditions employees suffered.  Everything is on hold while both sides decide how to proceed. [Read more…]

How Far do Whistleblower Protections Go?

whistleblower protectionsWhistleblower Protections? When Michael Johnson learned that the company he worked for had amended its 2016 tax return to reduce its tax burden, he filed a whistleblower complaint against his employer. Blue Shield, he claimed, had listed over $3 billion less in premiums than the original filing report. Blue Shield responded with a lawsuit against Johnson for breach of contract, alleging he had shared confidential information about the company. Just how much credence is there to Blue Shield’s argument? Do whistleblower laws give employees the ability to disclose company secrets? For answers to these, and other business questions, contact a local business law attorney.

California Whistleblower Protections

In California, employees are encouraged to report suspected violations of state and/or federal law to appropriate agencies, which are then authorized to investigate claims of wrongdoing. In fact, as per California Labor Code Section 1102.5, individuals who report suspicions of wrongdoing by their companies are considered a protected class. Retaliation against such individuals is prohibited.

What, Exactly, Constitutes Whistleblowing?

Whistleblowing is the reporting of illegal or safety violations that may be occurring in the workplace. Employees may refuse to engage in activities deemed to be illegal or unsafe, and may ultimately report problems to applicable agencies for investigation.

Whistleblower Protections

Businesses may not legally create policies that prevent employees from reporting unsafe or illegal situations in the workplace. Additionally, the law provides that employers may not:

  • Retaliate against individuals who choose not to engage in workplace activities they believe to be against state or federal laws or OSHA regulations;
  • Retaliate against employees who report infractions.

Retaliation may take many forms, all of which are violations of California Labor Code.  Common examples include:

  • Demoting or firing the employee;
  • Denying training opportunities, promotions, or access to higher-level meetings;
  • Forcing the employee to quit by making work life untenable.

Section 1102.5 of the California Labor Code requires employers to make restitution for any of these actions and to reinstate the employee to a job from which they have been fired when these actions occur.

Whistleblower Protections from a Lawsuit?

One wonders whether or not whistleblower laws shield Johnson, who is being sued by Blue Shield. The truth is, the courts have reached different conclusions in cases across the United States in recent years. Generally speaking, they will want to take a look at a number of factors, ranging from how the materials were obtained and to whom they were given, to the employee’s need to preserve the items in order to “blow the whistle.” While a comprehensive policy regarding secret materials will help any company with its most confidential documents, it is unclear how such a policy will stand against whistleblower protections. [Read more…]

Thank You California Firefighters for Putting It All on the Line

thank you california firefightersThank you California firefighters. By July 9, 2018, nearly 200,000 acres had been scorched in California wildfires. That is more than double the amount burned in each of the previous five years. Sadly, some parts of California have been so dry this year that they were never removed from drought status from last year. As of July 30, more than 10,000 people have been mandatorily evacuated from Mendocino and Lake Counties. The Ranch Fire along Highway 20 and the River Fire north of Hopland put residents across more than 35 miles at risk. With six out of the previous seven years experiencing severe drought across the state, hot, windy conditions make fighting these fires incredibly difficult and dangerous. It has been undeniably devastating for people who live and work in the area; but what has it been like for firefighters?

Hazards for California Firefighters

The men and women who fight these enormous fires are heroes in everybody’s eyes. The perils they confront as they protect Californians are many:

  • Thick smoke;
  • Winds that lead fires to change directions without warning;
  • Narrow roads that make traveling difficult;
  • Falling branches and exploding trees;
  • Fallen trees blocking roads;
  • Fatigue from working long hours;
  • Fallen power lines posing dangers to firefighters;
  • Dehydration;
  • Heat Stress as a result of vigorous manual labor, heavy gear, poor acclimatization to severe heat, and personal risk factors.

Work Schedules for California Firefighters

When situations are urgent, firefighters are often required to work long hours. In the case of these devastating wildfires, many of these heroes are unable to spend any time with their families and friends for days and weeks at a time. They grab sleep when at the brink of exhaustion, only to go back out to continue the demanding work again until communities are safe. While the fire season was once limited to the summer months, these days, California has deadly wildfires year-round. In the past six years, at least one wildfire has been burning during every single month of the year. While firefighters used to have the cooler months to refresh and regroup, the extended heat and drought have vaporized those opportunities.  

Injuries and Death a Constant Concern for California Firefighters

Firefighters put their lives at risk every time they confront a blaze. Consider these daunting statistics from 2016:

  • Over 60,000 serious injuries were incurred by individuals fighting fires;
  • Over half of the injuries involved respiratory problems;
  • There were 69 firefighters who lost their lives in the line of duty;

As of July 30, 2018, 59 firefighters have died on the job. A study of firefighter deaths indicates that firefighter fatalities for those involved in wildfires has increased by 26% in recent years. The primary causes of death between 2007-2016 include:

  • Vehicle accidents;
  • Aircraft accidents;
  • Heart attacks;
  • Entrapments;
  • Falling rocks and trees.

[Read more…]

Unsafe Working Conditions? Fight for Your Rights

unsafe working conditionsHave you been injured in a workplace accident due to unsafe working conditions? If so, you may wish to seek civil penalties from your employer. In California, employers who have accrued workplace safety violations from the California Occupational Safety and Health Administration may be held liable for damages in a civil court. An experienced labor & employment attorney can advise you further.

Workers Injured Due to Unsafe Working Conditions

Unfortunately, employees are exposed all too often in the workplace to unsafe working conditions.  Over the years, a number of serious incidents have been the result of lax workplace policies and shoddy enforcement of safety procedures:

  • When an employee was installing a solar panel for Elite Electric, he slipped and crashed through a skylight, landing 29 feet below. He was not strapped into any type of protective harness, and no protective measures of any kind were available in the area.  
  • Custodial employees at the Kaiser Foundations Hospital were expected to dispose of collection boxes that were filled with uncapped needles, even though the boxes often were filled to overflowing and the lids would not properly close. Employers must protect all workers from blood-borne disease, and were clearly negligent here.
  • Ashley Furniture faced several safety violations that imperiled employees, including failing to appropriately separate oxygen cylinders from fuel gas cylinders, failing to repair or replace damaged cords on industrial trucks, and failing to provide appropriate guards on a vertical band saw.
  • One employee was injured and another killed in an electrocution incident at Five Star Plastering Inc. when the metal scaffolding came into contact with a live power line. The workers had received no safety training prior to the accident.
  • Two Disney workers experienced a fatal, 80-foot fall from a platform that had been hoisted from a crane. The crane involved had not been inspected, and the operator had not performed necessary test runs or had rigging materials inspected prior to the accident.
  • Three employees were sprayed with molten metal after Tesla Motors failed to repair a damaged safety lock. None of the employees had been trained in potential hazards of working with the machine, and none were wearing protective headgear.
  • An employee for Three Frogs Inc. was killed after using incorrect procedures while cutting down a Eucalyptus tree. Appropriate training and rigging were not provided to the employees.
  • Two individuals contracted Valley Fever because employees were not protected from airborne dust at First Solar Electric.

[Read more…]

Wrongfully Terminated in California

wrongfully terminatedWhen the Director of Facilities for a Napa Valley resort executed the duties required by his job, he claims he was wrongfully terminated. Instead of rolling over and accepting his fate, Daniel Philbin took the case to court. The property owner, Carneros, sees things quite differently from the story Philbin tells.  As with most employment disputes, only with the help of an experienced local attorney will the plaintiff be able to successfully present a case.

Wrongful Termination and Job Expectations

Being in charge of the resort facilities encompassed many responsibilities, among them three key duties;

  • Ensuring the facility met ADA compliance regulations for disabled guests;
  • Reporting resort water usage;
  • Procuring necessary permits.

According to Philbin, his attempts to execute these obligations met with dissatisfaction from his employers, and resulted in his untimely termination. Specifically, he contends that when new owners took over the property and began renovations, they declined to install the ADA required ramps and lifts in the patio and spa areas. Additionally, Philbin asserts that when management sought to drill a new well on the property, they neglected to apply for the permits to enable water and electrical connections, despite Philbin repeatedly urging them to do so.

Instead of the new owners appreciating Philbin’s knowledge and expertise as a property manager, they ignored his overtures to follow legal procedures, and started holding meetings without him. Ultimately, he found himself without a job.

Wrongfully Terminated – The Other Side of the Story

Not true, claims the resort. As far as the ADA concerns, those were addressed immediately upon discovering there were issues. Yes, water issues were problematic, but the resort was fully cooperating with the County on that matter.  

In fact, the new owners were so intent on handling the water issues properly that they ultimately hired an outside contractor to handle it exclusively. Philbin was presented with an offer to deal with other property issues for a monthly salary. Instead, according to Carneros, Philbin lost his cool in a tense meeting and resigned. The company accepted the resignation immediately.  

Wrongfully Terminated? The Court Must Decide

Philbin says he received a letter from Carneros accepting his resignation, even though he never resigned. He is now seeking damages, attorney’s fees, and associated court costs. California’s Labor Code section 1102.5 provides strong protections for employees who are fired because they fail to join in unlawful activity. Was Philbin cut out because he insisted on proper procedures?  Did Carneros exact retribution? Was Philbin wrongfully terminated? The court will now have to decide. [Read more…]

Can Social Media Posts Impact Your Job Status?

social media postsCan my social media posts affect my job status? Many people experience some level of dissatisfaction with their jobs, co-workers, or supervisors. If you are one of those people, you are not alone. One study reports that more than half of Americans are dissatisfied with their work environment. That number has risen over recent years.

What is Making Workers Unhappy?

Workers report growing dissatisfaction in a number of specific areas, such as:

  • Wages;
  • Policies relating to promotions;
  • Benefits such as health insurance, sick leave, and vacation time;
  • Retirement plans;
  • Basic job security.

What Brings Happiness to the Job?

Employees report that two factors impact their happiness on the job more than any others –  interest in the job itself and having positive relationships with co-workers and supervisors.

Notably, job satisfaction has actually increased in one area – physical environment. Researchers surmise this may be related to the increase in telecommuting in many industries.

Social Media Posts and How to NOT to Handle Job Angst

Social media posts about your job frustrations can be quite dangerous to your job security. A case in point involves Jane Brill, who was fired after making disparaging remarks about her colleagues on Facebook. While Brill, and plenty of other people, may believe they have every right to say what they want on their own Facebook accounts, (what is the first amendment all about, anyway?) she was mistaken. The fact is, because Brill worked for a private company, she must adhere to their privacy rules.

What About Social Media Posts Unrelated to Work?

Inappropriate social media posts unrelated to the workplace can be just as dangerous to employees as complaints about the company. Even if it occurs on personal time, on a personal device, and espousing personal views, posting offensive content online can result in an employee’s termination.

Review  Your Social Media Posts Before You Get the Job

Believe it or not, seven in 10 employers screen social media pages of job applicants prior to making a job offer. So, if you are highly qualified for a position in a competitive job market,  your social media posts may tip the scales for or against you as company weighs your application against those of your competitors.

What to Avoid

Although it should go without saying, there are some types of posts that serious individuals really need to avoid:

  • Anything showing partying or drunken behavior;
  • Political or religious social media posts that may offend others;
  • Complaints about current or previous employers;
  • Profanity;
  • Evidence of prejudice;
  • Poor grammar.

Social Media Training

Employers can make sure their expectations are clear by providing regular training sessions for employees regarding social media. Additionally, clearly articulating policies in employee manuals can ensure everyone knows exactly what is accepted and what is considered an offense worthy of termination. [Read more…]

Disclaimer

The information on this website should not be considered to be legal advice, nor construed to be the formation of any manner of attorney client relationship. Prior to taking any form of legal action, please consult with an attorney experienced in the appropriate area of law germane to your situation. Case results and testimonials presented on www.californialaborandemploymentlaw.net or any of its related websites are germane to the facts present for each individual case and is not a promise of similar outcomes for any other cases. This website is not intended to solicit clients for matters outside of the State of California.