Pasadena Trader Joes’ Settling Wrongful Termination Suit

A former employee of a Pasadena Trader Joe’s filed a wrongful termination suit alleging he was fired for complaining about an instance of sexual harassment. The incident occurred during a holiday gift exchange. The former employee, Paul D. Roberts, complained after receiving a gift resembling a male sex organ at the 2014 Christmas party at one of the Trader Joe’s grocery stores located in Pasadena, California where he worked at the time.

Trader Joe’s recently settled the suit with court papers in Los Angeles Superior Court indicating that the case was resolved without divulging specific terms of the settlement. Robert originally sought unspecified compensatory and punitive damages. His suit alleged wrongful termination, sexual harassment, failure to prevent sexual harassment in the workplace, negligence and workplace retaliation.

Trader Joe’s denies any wrongdoing on the part of the company in connection with the settlement and states that Roberts was treated “lawfully” during his employment at the Pasadena location – at all times.

Court documents indicate that Roberts was originally hired on as a crew member at Trader Joe’s in Pasadena on Lake Avenue in February of 2007. The cited Christmas party gift exchange occurred in December of 2014. Employee attendance was “expected” bordering on “implicitly required” according to the lawsuit Roberts filed. The day of the party, Roberts was not scheduled to work at the store, but he felt his attendance was necessary in order to maintain a positive relationship with his supervisors and co-workers.

Upon Roberts’ arrival at the party, he noted that his co-workers seemed excited to see him arrive and anxious to see him open his gift. The gift was handed to him by a co-worker, Armina Asefvasziri, according to court documents for the case. Roberts opened the wrapped package and was immediately “shocked, embarrassed and humiliated” as he discovered that the gift was a small penis with testicles that would “grow” when submerged in water. He was distraught by what he saw as an obnoxious and offensive item, especially as he received it in front of his supervisor and the co-worker who gave it to him was female. He stated that he left the party and later filed an internal complaint. He told supervisors at Trader Joe’s that if he had provided a similar gift to a female co-worker, he would have been reprimanded or even fired. He stated in court documents that he only received nonchalant responses – his supervisors did not take him seriously. In January 2015, a human resources representative for Trader Joe’s advised Roberts that the incident/complaint was being investigated, but according to statements made in the lawsuit, Roberts was fired two days later.

If you need additional information about wrongful termination or help determining whether or not you have legal grounds for suing your employer for wrongful termination, please get in touch with one of the experienced employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Toyota’s Mandatory Arbitration Policy Barring Workers Pursuit of Litigation

D.C. Circuit sided with the National Labor Review Board (NLRB) in the fight over a Toyota dealership’s mandatory arbitration policy. The court found that the provision to bar workers from pursuing class litigation is illegal. The Law Office of Blumenthal, Nordrehaug & Bhowmik originally filed the NLRB unfair labor practice charge on behalf of Richard Vogel.

Legal scholars from various academic organizations, including University of Illinois, the University of California, Los Angeles and the University of Texas presented arguments that Price-Simms, Inc.’s use of a class action waiver in their employment agreement should be barred. Arguments were based on National Labor Relations Act of 1935, and the Norris-LaGuardia Act of 1932. Price-Simms, Inc. is the company that sells and services vehicles under the name Toyota Sunnyvale located out of Sunnyvale, California.

The university professors pointed out that Norris-LaGuardia prohibits the enforcement of an agreement that blocks employees from joining together in an attempt to protect their own rights in the workplace. According to this argument, the class action waiver provision that the Toyota dealership had in place in their mandatory employment agreement is therefore precluded.

The events that led to the Norris-LaGuardia enactment clearly shows that Congress intended to bar enforcement of agreements preventing employees to join unions and other agreements that require employees to settle grievances on an individual basis.  Therefore, Norris-LaGuardia bars the enforcement of the employee agreement so long as it includes wording preventing employees from joining together or acting in concert to enforce rights in the workplace.

Richard Vogel, the Price-Simms employee who filed the original complaint to the NRLB, argued that employees have a “substantive right” according to NLRA to join a union, file lawsuits individually or jointly, and in general, take action to ensure they are provided with basic workplace rights. Prior to the enactment of the NLRA, Norris-LaGuardia barred enforcement of agreements that forced employees to forgo their right to act collectively. Vogel argued alongside the scholars, presenting arguments supporting the NLRB’s decision that the class action waiver included in the Price-Simms arbitration agreement should be recognized as unlawful.

The employment agreement under discussion has been in place since at least April 2014. By making the employment agreement mandatory, the company removed the right for their employees to pursue any collective or class actions. The issue stems from the complaint made by Vogel to the NLRB after he was made to arbitrate a proposed class action over wage-and-hour violations in California state court. The Price-Simms’ arbitration agreement was found in violation of the NLRA in late 2015 and the company was ordered to revise their related policies. The Toyota dealership filed an appeal a month after the original findings claiming that the order incorrect under the law and unsupported by the record. The NLRB filed a cross appeal. The two appeals were consolidated in January 2016 (Price-Simms Inc. v. NLRB, no. 15-1457, U.S. Court of Appeals for the District of Columbia Circuit.

If you have questions regarding the legality of mandatory employment agreements, or if you feel that there is an issue of workers’ rights to address in your workplace, please get in touch with an experienced southern California employment law attorney at Blumenthal, Nordrehaug & Bhowmik. 

San Francisco: Home to the New $13 Per Hour Minimum Wage

San Francisco’s new minimum wage law will go into effect on July 1, 2016 at $13 per hour. This hike represents a “doubling” of the current minimum wage in the area. The change will also mean that the new maximum income to qualify as legally exempt in San Fransisco will be $54,000. The minimum wage increase is part of Proposition J, which passed in 2014 with over 76% of the vote.

Note to Employers: All California employers will be required to post the new minimum wage requirement notices citing the new $13 per hour as of July 1, 2016.

Mayor Ed Lee led the charge on Proposition J, referring to the ballot as a compromise between both labor interests and business interests. (The labor coalition originally supported efforts to enact a more expedited increase in the minimum wage in the area). Proposition J designates the following incremental increases to minimum wage:

·       $12.25 per hour by May 1st, 2015

·       $13 per hour by July 1, 2016

·       $14 per hour by July 2017

·       $15 per hour by July 2018

The end goal of $15 per hour would provide minimum wage employees with a base salary of $31,000 annually for full time work in San Francisco. Previous to this legislation, the highest minimum wage rate in California was $10.74 per hour.

The July 1, 2016 increase is just one part of the decision to increase the minimum wage to $15 per hour by 2020. The bill increasing the minimum wage designates gradual increases over time with increases after 2020 to be tied to inflation. San Francisco is joined by several other cities in the plan to gradually increase the minimum wage to $15 per hour. Other cities using similar plans include Seattle and D.C. Recent legislation is also addressing the minimum wage for restaurant workers. For instance, the tipped minimum wage in D.C. is currently $2.77, but will be gradually increased to $5 by 2020.

If you have questions regarding the minimum wage requirements, or other employment matters, please contact one of the experienced employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

San Francisco Voters Approve Paid Sick Leave Changes

On June 7th, 2016, San Francisco voters approved paid sick leave changes. The approved amendments alter existing law in San Francisco and become operative January 1, 2017. The delay offers employers time to come to terms with the changes and adapt their policies accordingly.

A Few of the Changes Coming With Amendments Approved on June 7th, 2016:

The Definition of Parent: “Parent” has a wider definition that now includes a person who stands in loco parentis when an employee was a minor child and biological, foster, stepparents (or guardians) of an employee’s spouse or registered domestic partner.

Timing: Employees hired on or after January 1, 2017 accrue leave when their employment starts. They cannot use it until their 90th day of employment with the company.

Advanced Leave and Frontloading: Employers can “frontload” the amount of sick leave accrued over the year. They can offer employees a lump sum of sick leave at the beginning of the year’s employment, the calendar year, or any other designated 12-month period of their choice. Frontloading in this way is treated as an advance on leave that will be accrued throughout the year time period. According to the amendment this does not prevent the employer from advancing leave to an employee at other times at their own discretion or limit the amount of leave an employer may advance an employee. An advance of leave must be in line with the employer’s own written policy or put in writing if no written policy exists.

Wage Statements: Effective January 1, 2017, an employer required to provide written notice regarding available California paid sick leave must (on the same notice) provide the amount of available San Francisco paid sick leave or PTO (paid time off) offered in lieu of sick leave.

These are just a few of the coming changes. San Francisco employers who are worried about the changes to employment law and how it will affect their company’s policies and procedures should contact an experienced employment attorney as soon as possible in order to ensure compliance in time for the January 1, 2017 effective date. For additional information on what constitutes compliance in the workplace, please contact Blumenthal, Nordrehaug & Bhowmik.

Voters Approve Changes to Paid Sick Leave in San Diego

June 7th, 2016, voters in San Diego made a new law that comes with a virtually immediate effective date. This new law will require area employers to move forward with efforts at compliance immediately in order to avoid being in violation of employment law.

The ordinance was originally approved in August 18, 2014. It was scheduled to become operative on April 1, 2015. One month after its approval, petitions were filed by opponents to suspend the law. The City Council voted to submit the matter to voters during the June 7, 2016 election and in so doing, allowed voters to demonstrate that they approved. The law will not apply retroactively, and will not be operational until 10 calendar days after the council adoption of a resolution that declares the election’s results (unless a separate, earlier date is designated in the resolution itself).

The San Diego law is applicable to all employers and their covered employees. A covered employee is one that performs at least two hours of work within the San Diego city boundaries for an employer for one or more calendar weeks in the year, is entitled to state minimum wage or is a participant in a State of California Welfare-to-Work Program. Exceptions are in place for those paid under a special license at below minimum wage, those working for publicly subsidized summer programs or other short-term youth work programs, student employees, program counselors, camp counselors, and independent contractors.

For additional information regarding the application of sick leave and minimum wage laws, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Blumenthal, Nordrehaug & Bhowmik Investigates Ralph’s/Kroger and Stanford University Data Breach

Blumenthal, Nordrehaug & Bhowmik are currently investigating recent reports of data breaches involving Ralph’s/Kroger and Stanford University. The breach occurred at the big-three credit bureau Equifax, Inc. (NYSE:EFX) and affects both current and former employees of grocery retailer The Kroger Co. (NYSE:KR) and Stanford University.

Kroger Co. is a grocery retailer that does business through a chain of popular grocery stores including QFC, Fred Meyer and Ralphs. Kroger Co. notified employees about the data breach in a letter sent out May 5, 2016 that advised them of the situation. It noted that there was an apparent data breach perpetrated by unknown individuals. These unknown individuals apparently accessed the company’s [Equifax’s] W-2 Express website through the use of default log-in information that was based on a combination of Social Security numbers (SSN) and birth dates.

The W-2Express service is a service provided by Equifax to larger employers like Kroger Co. in order to provide electronic access to employee W-2 forms through the Equifax website. The site database currently has more than 431,000 current and former Kroger employees registered. Data accessed on the site included W2 forms (listing SSNs, addressed, and salaries).

As pointed out by Dailey, the spokesman for Kroger, the popular grocery store chain conglomerate is not the only company to rely on Equifax for electronic access to employee W2 information; nor are they the only company to rely on a combination of SSN and birth date to access the data. Dailey even surmised that it could be the standard setup Equifax relies on for the system.

One month previous to the Kroger/Equifax data breach, Stanford University notified 3,500 of their current and former employees of a similar problem when their data was accessed for purposes of identity theft through the W-2Express database run by Equifax. Northwestern University had a similar issue with 300 employees’ salary and tax data files being accessed through Equifax’s W-2Express portal as well. W-2 data is particularly valuable to thieves interested in identity theft because it contains a large portion of the information they need to request fraudulent tax refunds.

If you have concerns regarding a potential breach of your personal information and you need to discuss your rights with an experienced attorney, please contact us at Blumenthal, Nordrehaug & Bhowmik. We are a leader in our field, experienced and knowledgeable in the representation of employees and consumers who have become victims of data breaches and other labor code violations. Visit our site or contact us directly for more information about how we obtained over $1.3 billion in awards through the course of our long and successful track record in the industry.

Drivers’ Employment Status Leaves Uber Being Sued…Again!

Uber is being sued again. The question of the Uber drivers’ employment status has opened the class action floodgates. Within two weeks of the settlement of $100 million for class action lawsuits in California and Massachusetts that sought driver reclassification from independent contractors to employees, Uber is fielding two new cases against their company.

Following the California and Massachusetts case resolution, similar nationwide class-action lawsuits have been filed on behalf of Uber drivers in both Florida and Illinois courts. The drivers (plaintiffs) allege that Uber, a San Francisco company, is in violation of the Fair Labor Standard Act. The new suits seek unpaid overtime wages and work-related expenses on behalf of drivers.

The class action suit that was filed in Illinois takes the familiar allegations to a new level by attempting to recover tips that drivers earned which they allege the company stole from them or caused them to lose through Uber policies and communications.

Legal representation for the Illinois class action lawsuit indicated that the settlement with California and Massachusetts drivers was an obvious attempt by Uber to band aid the situation when it called for much more drastic methods. Many drivers who work using the Uber service do so as a means of supporting themselves and their families. They need the protection of wage and hour laws and overtime pay requirements, just as much as the rest of the workers in the nation.

Uber responded to the new legal activity with a statement indicating that 90% of their drivers work with Uber because they enjoy being their own boss and that the reclassification of drivers from independent contractors as employees would take that away from them. They would no longer have the flexibility that the status of independent contractor affords. Uber “employees” would have designated shifts, a fixed hourly wage that would limit their earnings, and prohibitions would keep them from driving for additional ride-sharing apps.

If you have questions about the misclassification of workers or if you are an independent contractor and have questions about misclassification of employees, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik.