Ninth Circuit Court of Appeals Mistakenly Releases Opinion Listing Deceased Judge

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The U.S. Supreme Court held recently that the Ninth U.S. Circuit Court of Appeals was in error when they released an opinion that listed a deceased judge as the author while also counting his vote. The deceased judge, Judge Stephen Reinhardt had died 11 years earlier.

In an unsigned opinion the nation’s high court vacated the Ninth Circuit’s April 9, 2018 decision in the case that interpreted the federal Equal Pay Act. In the opinion, it was found that…the opinion of the court, without Judge Reinhardt’s vote (the deceased judge that was mistakenly listed as author) that was attributed to him in err, would have been approved by only 5 of the 10 members of the en banc panel who were alive when the decision was filed. The other five judges did concur in the judgment, but they concurred for varying reasons. The issue to be made clear is that Judge Reinhardt’s vote that was mistakenly included made a difference in the outcome.

The question posed to the Supreme Court was whether or not it was lawful. Since Judge Reinhardt was no longer a judge when the en banc decision was filed for the case, the Ninth Circuit decided that the Ninth Circuit did, indeed, err when counting him a member of the majority. In doing so, they effectively allowed the deceased Judge Stephen Reinhardt to exercise the judicial power of the United States post mortem. Since federal judges are appointed for life – not eternity – the Ninth U.S. Circuit Court of Appeals clearly erred.

Prior to his death, Judge Reinhardt did actively participate in the case and author the opinion. The majority opinion and concurrences were final and voting was completed prior to Judge Reinhardt’s death on March 29, 2018. The opinion listing the deceased judge in error was publicly released on April 9th. The Supreme Court found that the justification for counting Reinhardt’s vote was not consistent with well-established judicial practice, federal law, and judicial precedent.

The heavily debated opinion came in a discrimination case that was filed in the District Court for the Eastern District of California by a math consultant for the Fresno County Office of Education named Aileen Rizo. Rizo alleged she was paid less than her male counterparts.

If you need help protecting your legal rights in the workplace or have questions about how to file a California discrimination lawsuit, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Discrimination Lawsuit Against Hospital Results in $1M Award

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A former employee of St. John’s Pleasant Valley Hospital in Camarillo, California, Virginia Hoover, filed a California discrimination lawsuit against the hospital. A California jury awarded the woman $1 million.

Virginia Hoover, the former employee of St. John’s Pleasant Valley Hospital, worked as a radiologic technologist at the facility. She alleges that during her time working at the California hospital she was discriminated against.

According to Hoover, the discrimination occurred after she was injured while moving some medical equipment on the job. Due to the work-related injury, Hoover had lifting restrictions. According to Virginia Hoover, the hospital did not respond appropriately to her lifting restrictions with adjusted duties to accommodate her injury and her necessary treatment. Instead, they responded to her need for accommodations by terminating her employment in 2014.

Providing Reasonable Accommodations in the Workplace for Disability or Injury is Required by Law: The California Fair Employment and Housing Act requires California employers with five or more employees to offer reasonable accommodation for individuals with a physical or mental disability to apply for jobs and perform the essential functions of their jobs unless doing so would cause the employer or their business undue hardship.

The facility’s legal representation argued that the hospital gave Virginia Hoover a leave of absence and also made efforts to assist her in returning to the job. But the hospital’s attorneys stated that the company did decide at that point that Ms. Hoover was not able to perform her job duties as necessary.

The jury’s award to Virginia Hoover totals $1 million and includes payments for lost earnings due to the termination from her position with the hospital and the associated emotional distress. The Defendant in the case, St. John’s Pleasant Valley Hospital of Camarillo, California has been on record stating that they plan to appeal the court’s decision.

If you have questions about discrimination in the workplace or if you need to file a California discrimination lawsuit to protect your rights on the job, please get in touch with the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Do Breastfeeding Discrimination Cases Lead to Nursing Moms Losing Their Jobs?

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It doesn’t surprise many to be told that many employers fail to offer appropriate accommodations for breastfeeding. Even though the failure to do so, poses a health risk (and headaches) for nursing employees. Yet a new study that is the first one of its kind if bringing more clarity to this invasive workplace issue. The damages actually extend to the livelihoods of the mothers. According to researchers, a shocking two-thirds of cases alleging breastfeeding discrimination in the past decade eventually led to the employee losing their job.

Even the researchers themselves were shocked at the results. If you want to learn more about this workplace issue, start by defining breastfeeding discrimination.

Types of Breastfeeding Discrimination:

·      Denying break requests from employees who are in pain and/or leaking milk.

·      Firing employees for asking for breaks in connection to breastfeeding.

·      Refusing to provide privacy for employees who need to pump breast milk.

Sexual harassment of breastfeeding employees is also a common problem in the workplace.

Employers are supposed to provide breastfeeding employees with a clean place to pump (that is not a restroom), 15-20 minute breaks to pump breast milk, and a change in their job duties or a temporary assignment that accommodates their situation if it is necessary. For example, one of the study participants was a police officer who was unable to wear a bulletproof vest while she was breastfeeding. She was denied a temporary assignment to a desk job.

As a result of the predominantly negative perception of breastfeeding in the workplaces of America, working mothers are weaning their babies sooner than recommended by doctors, ending up with a diminished milk supply, or suffering from painful infections (a health risk that is often associated with lactation discrimination). The researchers went into the study aware of the health risks associated with the issue, but what really surprised them was the economic harm caused and the extent to which it pervaded the women’s lives. On top of the two-thirds of employees in breastfeeding discrimination cases who ended up losing their jobs (by being fired or forced to resign), three-quarters of the workers in the group experienced an economic penalty, such as reduced hours or being unpaid during their 15-20 minutes breaks for breastfeeding.

If you are struggling with breastfeeding discrimination or any other form of discrimination in the workplace, get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Gender Pay Discrimination Allegations Made Against Hewlett-Packard Enterprises

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In the fourth quarter of 2018, R. Ross and C. Rogus of Santa Clara, California, filed a class action California unpaid wages lawsuit against Hewlett-Packard Enterprise (HPE). The lawsuit describes a discriminatory pattern demonstrating gender-based pay discrepancies at the company. We’ve seen tech giants in the news before for similar practices and facing similar allegations, but this case does present a few interesting issues.

1.     Wage history perpetrating discrimination.

2.     Employer policies discouraging employees from talking about their salary as prevention of discovery of discrimination under California’s Equal Pay Act

3.     Using Secret Wage Classification and Promotion Systems to easily avoid meaningful reform.

In this California unpaid wages lawsuit, Hewlett Packard is accused of systematically paying female employees less than their similarly situated male co-workers and failing to advance them at the same rate as male employees performing similar work at a similar skill level. The business practices are apparently in place throughout all of California and are built on preexisting practices at Hewlett-Packard.

As of January 1st, 2018, employers in California are prohibited from asking job applicants about their salary history or using a salary history to determine what salary to offer a new employee. This was an effort to decrease the long-term effects of past salary discrimination. This law, however, does not offer protection to workers hired prior to that date or current employees who are seeking an internal promotion. Long-term workers who are seeking to make a career with a single employer will not find assistance for past pay discrimination in the law that went into effect January 1st, 2018. In the complaint against HPE, it is alleged that long-term employees tend to stay at the lower-paid job level 1 or 2. In comparison, new hires start at or quickly rise to a higher paid level 3.

Raises at the company are based on a percentage of the employees’ existing HPE salary, so they not only support the gender pay gap, but widen it. The longer a female is employed by HPE, the less she will be paid in comparison to her male counterparts even when fulfilling similar job duties at an equal or better rate. Gender discrimination paired with age discrimination combine to leave older female employees double affected.

Pay secrecy policies are still a common practice, particularly in the tech industry. Policies requiring silence about pay have been prohibited in most industries since 1935 by the National Labor Relations Act. Pay secrecy policies are also banned by California Labor Code section 232. Since 1985, the law has specifically prohibited the requirement of any employee to refrain from disclosing their wage or requiring an employee to waive the right to discuss their wage, or to discipline an employee for discussing their wage. Yet many employees are unaware of their rights and many employers still discourage (officially or unofficially) pay secrecy.

Similarly, when wage and promotion structures are not transparent, workers are prevented from acting on discriminatory behavior. Many employees are reluctant to act or share information with co-workers but find themselves suffering from vague or opaque employer pay scales and promotion structures.

If you are suffering from the effects of gender-based pay discrimination or you need help seeking equal pay in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Former Planet Fitness Manager Makes Allegations of Harassment and Rape

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A former manager of a Planet Fitness sued the well-known gym claiming that the company supported a male-dominated, and “debaucherous” workplace. Among her complaints are allegations of sexual harassment and rape. Senior management for the Planet Fitness location headquarters organized drinking activities for the employees. For example, “Fireball Friday.”

Fireball Friday games had employees competing to drink the most shots in the least amount of time at work. One manager also brought vodka-based gummy worms to work. Casey Willard joined the company in 2015. When she was new on the job, she followed her managers’ direction and doing so sometimes left her at work and drunk by 11:00 in the morning.

Willard filed suit against Planet Fitness in September. Amid a number of employment law violations, Willard also alleges that she was drugged and raped by a company manager and his friends during a September 2017 business trip to California. According to the lawsuit, she reported the rape to the local police and to Planet Fitness. It is not clear what became of the police report or what action was taken by law enforcement. Willard discussed the problem with two Planet Fitness attorneys and clearly stated that she didn’t want others at the company to know what happened to her, but later discovered that other managers knew of the situation.

Willard also claimed in the lawsuit that one of her managers initiated a sexual relationship with her; which was in violation of the company’s anti-fraternization policy. She was concerned that she might lose her job due to the situation. She eventually let the company know (earlier this year) that she couldn’t return to work.

Willard described the work environment at the Planet Fitness corporate offices as “debaucherous.” Senior management was mostly male and most of them made “openly sexual comments, sexual innuendo, and engaged in pretend sexual contact toward female employees.” In response to Willard’s claims, Planet Fitness states that they investigated Willard’s claims and fired an employee for violation of Planet Fitness policy. The company stated that they also discovered that Willard engaged in a consensual relationship with a supervisor that she didn’t bring to the company’s attention. That supervisor was also fired. The company disputes Willard’s other allegations and claims they are baseless.

Willard seeks a jury trial and unspecified damages arising from sexual harassment and a hostile work environment, discrimination and wrongful termination.

If you are fighting sexual harassment in the workplace or if you need to discuss what to do when your employer supports a hostile work environment, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Vivint Smart Homes Faces Racial Harassment Complaints

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Vivint Smart Homes, a Provo-based company, is facing racial harassment complaints filed by four former employees. The four complaints arrive on the scene only months after two former Vivint Solar employees filed similar harassment complaints in June 2018.

The four men who filed racial harassment complaints all identify as black or Latino. The lawsuits were filed in October 2018 in the Superior Court of California in LA. Claims included racial harassment, workplace retaliation, wrongful termination and racial discrimination in the workplace on the part of co-workers.

The previous, but similar, complaints came just four months after two other former employees, one white and one black, leveled allegations of racism and hostile work environment in a Vivint Solar office right here in California. These complaints came after a supervisor and other workers on site built a cardboard “fort” in the warehouse and then used spray paint to write “white only” on the outside of the makeshift, cardboard fortress. 

Vivint Solar and Vivint Smart Home are two separate entities. But both companies are controlled by the same private equity firm in New York. Both also grew out of APX Alarm, a Provo company that was founded almost two decades ago. The two companies, Vivint Solar and Vivint Smart Home, enjoy a strategic partnership.

Attorneys representing the plaintiffs suggest that it’s obvious that there is a real cultural problem in the Vivint family. Christopher Brown, one of the plaintiffs, claimed that shortly after he arrived to work in California as a sales representative for Vivint Smart Home, his supervisor on the job started to use the “n-word” and make racist comments. Chris made a complaint but got an extremely minimal response from the company. In fact, Brown is fairly certain the supervisor in question is still employed at the company and that no disciplinary action was taken regarding the racial harassment.

Other complainants include: Andrew Kirchner, Terence Major and Vaaron Watts. All claim that they were subjected to racial slurs, images and videos posted to a GroupMe chat hosted by a co-worker.

If you have been subjected to a hostile work environment or if you are discriminated against at work, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

The Wonderful Company Faces Pregnancy Discrimination Allegations

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Lynda Resnick is the 10th richest self-made woman in the United States. She is a pioneering entrepreneur, a prominent philanthropist, and an inspiration to women everywhere. She is also the co-owner of The Wonderful company and they’re currenting being accused of pregnancy discrimination. Despite the fact that she is a spokeswoman for women in the workplace fighting against stereotypes and hostile work cultures that are becoming less and less acceptable since the social change reflected by the #metoo movement in recent years, five former employees claim that Resnick is not a great example of glass-ceiling breakers.

One of the five former employees filed a pregnancy discrimination and wrongful termination lawsuit against the company. The case is currently in private arbitration and comes only five years after the company resolved a lawsuit that stemmed from similar claims. The other four employees describe the company’s work culture as a hostile work environment particularly for pregnant women or working parents, but none of the four have sued or filed any complaints against the company. The Wonderful Company denies the claims being made by the five former employees.

Arbitration on the case started on November 12th. The employee alleging pregnancy discrimination and wrongful termination was the former marketing director at The Wonderful Company. Fearful of retribution from future employers, the woman asked that her name be kept out of the press. She claims she was fired in 2016 during her maternity leave. She had planned 16 weeks of maternity leave to care for her newborn (as provided by California’s Family Rights Act or CFRA), but she was fired 12 weeks to the day after she started her maternity leave.

The federal FMLA or Family and Medical Leave Act covers 12 weeks of unpaid job-protected leave for covered employers. Federal law also allows four additional weeks of unpaid leave if a doctor confirms that a mother is temporarily disabled in accordance with the Fair Employment and Housing Act. The former Marketing Director claims that her job was terminated on the exact day her FMLA expired and in California, employees are still covered under CFRA.

If you have experienced pregnancy discrimination in the workplace or if you were fired while you were on FMLA leave, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.