California Overtime Lawsuit: Hotel Housekeepers Denied Overtime Pay

While many domestic workers had cause to celebrate in September of 2016, some California hotel housekeepers quickly found that the bill granting permanent California overtime protection for domestic workers did not apply to them. For instance, a hotel owner in East Oakland refused to provide overtime compensation to six housekeepers in his employ. As a result, the employees, along with a legal advocacy firm working on their behalf and the City of Oakland, filed a California Overtime Lawsuit against the Oakland Quality Inn.

In the California overtime lawsuit, the plaintiffs cited additional employment law violations, including:

·       The hotel required employees to work off the clock both before and after shifts.

·       The hotel did not provide mandatory breaks as required by labor law.

·       The hotel retaliated against employees who phoned in sick to work.

The labor law violations cited by the plaintiffs have allegedly been in practice for a minimum of four years. The plaintiffs, one of which only speaks Spanish, got in touch with attorneys at a legal advocacy to seek assistance in obtaining resolution of the matter.

Media reports indicate that legal counsel involved in the case indicated that both fear and employer retaliation are a big problem not just at this one isolated hotel in Oakland, but throughout the housekeeping industry and that they are a tool used to exploit housekeeping staff. The six immigrant women involved in this particular case had to overcome great personal fear in order to seek justice in their difficult situation.

Lead plaintiff in the case gave a city statement saying that she felt bad about her housekeeping position with Oakland Quality Inn because they were suffering in their position – they were worked excessively, were not provided overtime compensation, or offered any overtime or sick time. She specified that they weren’t paid for time off even if they provided a doctor’s note to the hotel.

The lawsuit was filed jointly by the City of Oakland and a legal advocacy firm in Alameda County Superior Court on January 31st, 2017. According to Oakland City Attorney Barbara Parker, it is the city’s first lawsuit under the minimum wage ordinance that voters passed in the fall of 2014. As of March 2015, Oakland’s minimum wage was set at $12.25 with a cost of living increase annually bringing it up to $12.86 per hour.

In the state of California all domestic workers, including hotel housekeepers, are entitled to overtime compensation.

Statistics from the UCLA Labor Center make it clear just how applicable the issue is to California workers with about 2 million California households hiring domestic workers:

·       Housecleaning (54%)

·       Homecare Support for Seniors/Disabled Individuals (27%)

·       Childcare (19%)

Many domestic workers are live-in workers with a number of them working 24-hour shifts. While the signing of bill AB241 granted overtime protection for domestic workers, many are still being exploited in hotels, private facilities, and private homes. While legal protections are in place, the question now is one of enforcement.

The suit seeks unpaid wages/compensation for employees plus penalties and damages.

If you need assistance determining whether or not you are entitled to overtime pay, or if you need to discuss other labor law violations in your workplace, please get in touch with one of the experienced northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Shedding Some Light on the Serious H1B Visa Program Issue

60 Minutes recently ran a story on the H1B Visa program that showed the impossible situation many American workers found themselves in when they were told to train their own replacements. These workers from foreign countries were a part of the H1B Visa program, which is intended to save taxpayers millions of dollars through outsourcing, but the alleged long-term benefits for taxpayers are of no comfort to those who are facing the loss of their jobs.

American workers interviewed about the situation were still having trouble “wrapping their minds” around actually being forced to train someone to take their own position; their livelihood. Workers agreed with interviewers that the situation feels like being forced to dig their own grave…and then get in it.

Robert Harrison, one of the workers interviewed regarding the situation, is an engineer previously employed by UCSF Medical. Harrison was fired along with 80 of his co-workers recently when their jobs were outsourced to India. Before leaving his position, Harrison, like his coworkers, was forced to train his own replacement. The situation left Harrison, and many American workers in similar situations, outraged and angry. Harrison had to sit next to the worker chosen to replace him in his position at UCSF Medical - wishing the entire time that he wasn’t being forced to work with his own replacement sitting next to him “shadowing” him and attempting to learn all that he knows in order to step into Harrison’s place at the company. Yet doing so was the only way to ensure that he would receive pay through February 2017 as well as a promised bonus. Making the full pay contingent upon fulfilling obligations to train replacements left Harrison, and many like him, with his hands tied. 

Representation for hundreds of workers who have been fired from their jobs in favor of foreign workers with H1B Visas stated emphatically that the situation should offend everyone. She insists that no one should be told that they are losing their job because they are being replaced by cheap, foreign labor. It is an insult to each and every worker being forced to train their own replacements and seek employment elsewhere.

The H1B visa was created in 1990 to help the United States attract the top foreign graduates and offer them a path to United States citizenship. When the program was created, Congress promised American workers that their jobs would be protected. Almost every major tech company has employees here on H1B visas, including Apple, Google, etc. Media companies also embrace the practice. The author of the H1-B Visa bill, Former Congressman Bruce Morrison, has stated that the bill has been “hijacked.”

If you have questions about how the H1B visa program could affect your job or your workplace, please get in touch with one of the experienced southern and northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Applicants Sue PricewaterhouseCoopers LLP for Alleged Age Bias

Applicants of a proposed class of 40 and over job seekers rejected by PricewaterhouseCoopers LLP allege age discrimination on the part of the accounting giant, specifically citing the company’s employment practices. The applicants say that the hiring (in addition to other employment practices) inadvertently favor younger potential employees while discouraging older applicants.

Recently a federal judge in California ruled that the company would need to defend against the claims; in opposition to the previous conclusion reached in October 2016 by the U.S. Court of Appeals for the Eleventh Circuit. The federal judge’s conclusion embraces the view of the Equal Employment Opportunity Commission. The case could lead to a possible showdown between federal courts regarding who can bring this type of discrimination claims under the Age Discrimination in Employment Act. Although the U.S. Supreme Court has been asked to look at the Eleventh Circuit’s ruling so they may address the issue before it comes to that.

If the justices decide to review this particular case, they would necessarily need to consider the question of how much deference lower courts owe to the EEOC’s views on this particular issue.

PricewaterhouseCoopers LLP’s Reaction to the Ruling:

PwC’s argument that the job applicants didn’t have the right to sue for disparate-impact bias because they were not actually hired failed according to the U.S. District Court for the Northern District of California’s decision February 17th. The theory behind disparate-impact claims allege unintended biased effects resulting from policies or practices that may not be explicitly discriminatory. The allegation PwC is facing cites the company’s tool that purposefully recruits college students as limiting potential for hiring to recent college graduates and applicants with impending college graduations.

In October, a similar claim was brought before the Eleventh Circuit regarding the R.J. Reynolds Tobacco Co. Allegations in this case included that the company used guidelines to review resumes submitted for open positions that targeted job applicants that were only 2-3 years out from college graduation. In the R.J. Reynolds Tobacco Co. case, the court held that only the workers already hired could bring disparate-impact claims and that potential employees still in the hiring process or being considered for a position may sue only for intentional age discrimination.

In response to the situation, PricewaterhouseCoopers LLP stated that they respect all anti-discrimination laws, but do not agree with the interpretation of the court regarding the situation. The company spokesperson, advised that the firm believes that the provision of the ADEA does not apply to applicants for open positions.

Lead class counsel Outten & Golden LLP had a different take on the same issue. They found the Court’s decision to follow decades of Supreme Court precedent pleasing in its confirmation that job applicants can challenge age discrimination through the conventional disparate impact theory. They noted that Congress carefully ensured that all individuals could depend on coverage, not just employees. They also pointed out that it has been pointed out by the Supreme Court numerous times that the ADEA should be read similar to other civil rights statues (like the Fair Housing Act or Title VII) in order to include the types of claims being questioned.

U.S. District Judge Jon S. Tigar’s rejection of PwC’s attempted reliance on the Eleventh Circuit’s decision in the Villarreal v. R.J. Reynolds Tobacco Co., was based on a different interpretation of the ADEA in comparison to the majority. Tigar points to the phrase “any individual” used in the law providing a claim for disparate-impact bias and indicates that it does not use the narrower term “employee” even though the narrower term, “employee,” is used in other sections.

Because of the specific word use, Tigar concluded that it can be assumed that Congress’ variation in the terms used was deliberate and indicated that they intended to include all individuals rather than limiting the protections offered to employees. Tigar’s reading is supported by Supreme Court cases that signal disparate-impact claims may be brought by 40+ applicants for jobs.

While the plain language of the law in this case may continue to see varying interpretations, Tigar argued that the law should be viewed as providing protections for 40+ applicants alleging discrimination in employment and hiring policies like PwC’s college student recruitment tool. When a statute’s meaning is not clear the court should grant deference to the stance of the federal agency that is actually tasked with enforcing the law. In the case in question, the agency tasked with enforcement is the EEOC, which has interpreted the ADEA in the past as permitting disparate impact claims by applicants. PwC did not provide a substantial or compelling argument for not adhering to long-established views of the EEOC. Additionally, the law’s legislative history also supports rejection of the position the company is taking that the law only provides protection for employees. The Court added that Congress intended for the ADEA to overcome barriers to employment for older workers, not just age discrimination that may be faced once they’re hired.

If you have questions regarding age discrimination in the workplace or in the hiring process, please get in touch with the experienced northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Are Hugs a Hostile Act in the Workplace?

Are hugs a hostile act? What about in the work environment? In a recent decision by the U.S. 9th Circuit Court of Appeals a sexual harassment lawsuit against Yolo County Sheriff Edward G. Prieto was revived. According to the lawsuit, Prieto allegedly hugged a female correctional officer more than 100 times over the course of 12 years.

In defense of the “hugging,” Prieto argued that he also hugged male employees in the workplace. His lawyers further argued that if he hugged the women in the workplace more, it was simply due to general differences in the way that men and women interact on a routine basis with members of the same and opposite sex. Yet according to the 9th Circuit, hugging can create an abusive work environment if the action is unwelcome and pervasive.

Plaintiff in the case, Victoria Zetwick, was a correctional officer. She also alleges in the suit that Prieto once kissed her when congratulating her on her wedding to another deputy. She claims she saw him hug dozens of other female employees throughout her 12 years on the job, but only give male employees handshakes. During the case, Yolo County defense did get Zetwick to admit that she had been known to hug male co-workers on occasion. The Yolo defense team also pointed out a statement in which Zetwick described Prieto’s hugs as “brief.” There were no sexual comments or other touching.

In 2014, a federal district judge dismissed Zetwick’s lawsuit, but in appeal the court found she had offered up enough evidence to possibly persuade a juror of reasonable mind that she had experienced sexual harassment in the workplace due to Prieto’s tendency to hug female workers in the department. They indicated that it would seem that Zetwick had offered evidence that there were both qualitative and quantitative differences in the conduct of Prieto toward the two genders. In the suit, Zetwick stated that the behavior made it difficult for her to concentrate, left her stressed and anxious and eventually made her resort to sleeping medication.

If you need information about hostile workplace environments or hostile actions in the workplace, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

ESPN Faces Wrongful Termination Suit: Tennis Announcer Fired for Racist Venus Williams Comment

One of ESPN’s tennis commentators was fired last month after accusations of “racist language” when describing Venus William’s playing style during the Australian Open. Doug Adler, former ESPN tennis commentator, filed a wrongful termination lawsuit against ESPN feeling that he had been treated both badly and unfairly.

The controversial comment made by former ESPN tennis commentator, Doug Adler, occurred on January 18th during Venus Williams’s 6-3, 6-2 victory over Stefanie Voegele. Many reported hearing Adler say, “You see Venus move in and put the gorilla effect on, charging.” Twitter exploded with negative responses and appalled reactions. Some called for the immediate termination of the 58-year old former tennis pro, who had been working as a tennis commentator for ESPN since 2008. The next day, Adler apologized, but made sure to clarify that his words were misinterpreted and that he had actually said, “guerilla effect,” in reference to a style of play that was made famous in the 1990s.

Adler’s lawsuit was filed in the Los Angeles Superior Court, where he reiterated that he said “guerilla” and noted that ESPN was simply bowing to pressure from social media users when they fired him from his job because social media users believed and actively promoted that he had used the word “gorilla” to describe Venus Williams.

Adler sees the lawsuit as one of the few options he has to fight for his reputation amidst the escalating misinterpretations of his comment. In response to the firing from his position at ESPN, Adler has had other employers in the industry “shun” him resulting in major financial and emotional harm. He is seeking an undisclosed amount in compensation and damages.

Adler was unaware of the controversy caused by the comment until 24 hours later. At that time, ESPN replayed the tape for him and his broadcast partner, asking them if they noticed anything unusual. According to Adler, they didn’t. He states that he was then informed that it had gone viral and why. He was advised that the Twitter community was branding him as a racist. At that point, ESPN instructed Adler to issue an on air apology for the remark, which they wrote for him. Adler issued the apology, did not call any more matches that day and was fired the next.  

Adler’s attorney insists that the entire situation is ironic as Adler called everything professionally and correctly, while ESPN failed to do so. They recklessly made the wrong call and stuck to it. It is being labeled political correctness gone overboard as well as cowardly. Most of all, the actions of ESPN may have ruined a man’s career. When originally commenting upon Adler’s termination, ESPN stated that he should have been more careful in his word selection.

If you aren’t sure what constitutes wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Wrongful Termination Lawsuit Filed After Cal Women’s Water Polo Coach Fired

Richard Corso, former Cal women’s water polo coach, filed a California wrongful termination lawsuit against Athletic Director Mike Williams, Senior Associate Athletic Director Jenny Simon-O’Neill and Associate Athletic Director of Compliance Jay Larson. Corso seeks $1.38 million in lost wages.

In the suit, Corso alleges gender and age discrimination in the wrongful termination suit. Corso also alleges that in 2015, Simon-O’Neill, a senior woman administrator, said that the administrators were looking for the team to be led by a young woman. According to the suit, before the meeting the former Cal athletic director, Sandy Barbour, said she wanted to see women coaching women.  After the suit was filed, Cal Athletics denied the allegations, calling them false and/or fictitious.

Two months after 62-year old Corso resigned, the Bears hired 39-year old Coralie Simmons. Prior to being hired at Cal, Simmons led Sonoma State. Cal Athletics claims that their search included both male and female candidates. Simmons is currently the only female head water polo coach in the Mountain Pacific Sports Federation.

The wrongful termination lawsuit lists the UC Board of Regents and UC Berkeley as defendants and describes an internal inquiry into the training practices used by the water polo team in accordance with NCAA bylaws. According to the lawsuit, Larson told Corso in March 2015 of over-training violation suspicions. Two months later, O’Neill received an allegation regarding the potential over-training violations that led to an internal inquiry. Further in the lawsuit, it is alleged that the internal inquiry/investigation quickly turned into a crusade against Corso even though the eventual conclusion was that the allegations were “meaningless.”

Cal Athletics suggests differently, stating that the allegations were, in fact, indicative of very serious violations and that the NCAA Enforcement staff initially considered the case as a Level II violation prior to determining that it should be handled as a Level III. They further described the investigation as being “self-reported” to the NCAA and that at its conclusion; it resulted in a reduction of 48 hours of practice time.

Corso alleges that he exhibited exceptional performance, but was mistreated in spite of his record. He cites his 227-98 record as well as the team’s improved graduation rate. Corso took over the Bears in 2005. At that time, the team was described as “lacking” both in academic and athletic standards. The peak of Corso’s Cal career was in 2011 when the Bears advanced to the final game of the NCAA Championships where they lost to UCLA. The Bears are currently 9-1 in their current season, led by new head coach Simmons.

If you have questions regarding what constitutes wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Catholic Teacher Files Wrongful Termination Suit: Fired After Sharing Gay Marriage on Social Media

Kenneth Bencomo, a former Catholic high school teacher, claims he was fired from his job after his legal marriage to his same-sex partner. Bencomo states in the lawsuit that until he was fired, he was unaware of the church’s stance on homosexuals and gay marriage. Bencomo, now 49 years old, was raised Catholic and graduated from an all-male Catholic high school in La Verne.

Bencomo and his same-sex partner, Christopher Persky, met in April 2003. The two were among a large group of same-sex couples that married when the U.S. Supreme Court ruled in June 2013 that gay weddings could resume in California for the first time since 2008. Bencomo was fired from St. Lucy’s Priory High School in Glendora, California in July 2013. The firing occurred less than two weeks after Bencomo publicly shared news of his nuptials through social media.

Bencomo filed suit against St. Lucy’s in March 2014 citing wrongful termination claims in violation of public policy as well as violations of state Labor Code and breach of employment contract. The attorneys representing the school filed a motion for dismissal on the grounds that the school was founded by a Catholic-affiliated organization and therefore has immunity from the claims included in Bencomo’s suit. Bencomo’s attorney argues that the school’s argument for dismissal is a misguide application of the ministerial exception.

During Bencomo’s deposition, he was asked about his knowledge of the Catholic Church’s view of gays and gay marriage. Bencomo stated that at the time he took the job at St. Lucy’s, he had no idea what the Catholic Church’s stance was regarding being gay. He further stated that he learned about the church’s position on the matter when he was terminated. He said that he doesn’t remember who it was that told him that it was okay to be gay, but that you couldn’t act on it. Bencomo stated that he didn’t believe that the information he was provided was an actual representation of the Catholic Church’s official viewpoint on gays.

If you feel that you may have been wrongfully terminated from your job, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.