Miso Japanese Restaurant Faces Numerous Labor Law Violation Allegations Amid Bankruptcy Case

The operator of Miso Japanese Restaurant faces numerous California Labor Law violations. Amidst the allegations, the company filed bankruptcy. The company behind the popular Japanese restaurant is G Wealth 88 Inc. The company filed Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the Eastern District of California. 

Plaintiff Seeks Compensatory and Punitive Damages: 

Miso Japanese’s reorganization bankruptcy lists a number of liabilities. At least one of the creditors is the SBA (Small Business Administration) with debt associated with pandemic relief for small businesses. Amid the bankruptcy, G Wealth 88 faces an entirely separate employment law related lawsuit filed in July 2020 in Sacramento County Superior Court. Roger Lee, the plaintiff in the case, seeks compensatory and punitive damages citing numerous allegations of California labor code. 

Plaintiff, Former Owner of Miso, Sold the Business in Late 2015 / Early 2016:

According to the lawsuit, the plaintiff is the former owner of Miso Japanese. Roger Lee allegedly sold the company to Wing Size Fok and G Wealth 88 in 2015/2016. According to the lawsuit, Lee continued to manage the business on behalf of the  new owner during the sale to allow time for them to transition to living in the USA. 

Allegations Included in the Miso Japanese Employment Law Suit: 

The lawsuit lists numerous alleged labor law violations including misclassifying Lee as an exempt employee, failing to provide mandatory sick leave (required by California labor law), failing to pay overtime in accordance with California labor law, and making unauthorized changes, and deductions to Lee’s salary. The lawsuit also claims that the Plaintiff was required to work without mandatory meal periods and rest breaks in violation of California law. The Defendant disputes the allegations and G Wealth 88’s bankruptcy attorney has petitioned for an automatic stay on the employment lawsuit based on the Chapter 11 bankruptcy. 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Unemployed Workers Flock to Gig Jobs During Covid-19 Pandemic

As more furloughed California workers turn to gig jobs to generate income during the Covid-19 pandemic, experts worry that they aren’t aware of the dangers they face. 

Hundreds of Thousands of Gig Jobs Become Available During Pandemic:

With workers in many industries struggling to find even minimal part-time work due to the Covid-19 pandemic, more than 38 million people have filed for unemployment nationwide in the last few months. At the same time, hundreds of thousands of gig jobs are opening up due to changes in how consumers behave during stay home orders and shelter in place orders. Amazon, DoorDash, Instacart, and Shipt all experienced significant increases in usage that resulted in a hiring frenzy.   

Furloughed Workers Rush Toward Gig Jobs During Covid-19 Pandemic: 

Many workers who have been laid off, furloughed, or can’t work from home are rushing toward the jobs available in the gig industry. The promise of flexible hours and an immediate, flexible income draws many to jobs that have been facing significant kickback due to alleged employment law violations. Instacart was founded in 2012, but in the last two months, they have doubled their workforce. Target’s Shipt delivery services doubled its fleet size in the last two months (after six years in business). 

What If Gig Jobs Stick Around After the Pandemic? 

If consumer demand for home delivery stays strong after the pandemic, the significant influx of new gig workers could become the new norm. More American workers could face the same inequities that were exposed by the virus (lack of employee rights affording workers sick leave, health care, etc.) Gig work offers few worker protections (even during good times), but the coronavirus increases the stakes. Workers are classified as independent contractors, allowing on-demand companies to shift much of the risk of the services they provide to their workforce. Workers provide their own vehicles, their own gas, take-home pay is volatile, and there is no minimum wage or overtime pay. 

If you have questions about California labor law violations or how employment law applies to California’s gig economy, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Employers Forcing Staff Back to Work During the Coronavirus Outbreak

Many California workers are asking the same questions right now, can your employer force you to return to work during the coronavirus outbreak? Some employees refuse to return to the workplace because they do not want to risk spreading the novel coronavirus. 

California-based Hairstylist Who Refuses to Return to Work Amid Outbreak:

Michelle Sylvester is a California hairstylist who says that a significant portion of her clients are older. While the salon where she works is still open for business, she is not returning to work until health agencies announce that the Covid-19 crisis is over. She doesn’t feel comfortable putting her life in danger or the lives of her clients in jeopardy over a few dollars. Since Sylvester is an independent contractor, she is not at risk of losing her job if she doesn’t show up for work. But many Californians can’t say the same.

Workers Wonder About their Rights During the Novel Coronavirus Outbreak:

As the coronavirus pandemic spreads, workers are wondering about their rights. What rights do workers have if their superiors on the job request (or demand) their return to the workplace. With some legislative leaders more worried about the economy than personal safety of California’s people, it has become a very relevant and pressing question, can you boss make you return to your desk job during a pandemic?

Can Your Boss Make You Go Back to Work During a Pandemic?

While experts say the answer to this particular question is no, the law isn’t entirely black and white. Whether or not your boss can force you to return to work may depend on the type of job you have. If your job position is defined by the local government in your area as “essential,” you may need to comply with your employer’s request to return to work or risk your job. California workers performing essential jobs like pharmacists or police officers or sanitation workers, etc. can be told to return to work. If they do not respond as requested, their actions may be defined as insubordination, or even considered “quitting” their job.  

Who Determines Whether Your Job is Essential Or Not?

Federal guidelines leave it to the state and local authorities to define which businesses are essential in a time of crisis. In most cases, the following workers would be considered essential: grocery store workers, medical staff, law enforcement, food laborers, utilities and transportation workers, government workers, emergency personnel, first responders, etc.

What Protections Are in Place for California Workers?

Unless there is a local mandate requiring that you show up to work during the coronavirus pandemic, employees are most likely within their legal rights to stay home (particularly if they are near a hot zone). The Occupational Safety and Health Administration includes a “General Duty Clause,” requiring that employers provide hazard-free work environments. (Hazard being defined as anything likely to cause death or severe injury to workers). Covid-19 counts as something “likely to cause death or severe injury.

If you need to discuss employment law violations in the wake of Covid-19, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California Labor Law Issues Stemming from the Novel Coronavirus

The novel coronavirus has changed the day to day lives of many during the past weeks. The changes wrought by this unprecedented situation are making waves that seem to ripple through the legal landscape.

California Labor Law Issues Stemming from Coronavirus:

California labor law issues connected to the spread of the coronavirus are making themselves known. Uber drivers have been fighting for employee rights citing misclassification for years, but their arguments are escalating quickly in response to the coronavirus. 

Uber's Response to the Coronavirus Pandemic and Escalating Litigation: 

In response to the situation, Uber released a temporary pandemic-specific policy. The policy was introduced at the beginning of April 2020 after Uber drivers requested a California judge issue an emergency order to require Uber to classify them as employees during the coronavirus crisis. The drivers argued that failing to do so puts the public in danger as drivers classified as independent contractors are more likely to keep working when infected, which could further the spread of the virus at a crucial time when flattening the curve is so vital.

Introducing Covid-19 Sick Leave for Uber Drivers:  

The temporary policy Uber introduced in response to the demand for employee status is more stringent than protections provided to employees under the California labor code. However, it requires documentation of a Covid-19 diagnosis form a doctor or a personal order to quarantine, which still leaves a substantial risk to the public as many sick drivers will not be diagnosed or ordered to quarantine. With many of California's drivers living "check to check," they cannot obtain a doctor's note and will keep working even if exhibiting Covid-19 symptoms. The plaintiffs' counsel argues that this situation presents a risk of significant harm to the drivers themselves and the public.

The Response to Uber's Temporary Pandemic Sick Leave Policy:

Under the temporary policy Uber introduced, drivers would lose work (up to several hours) attempting to obtain the required doctor's note. Those who do not have Covid-19 symptoms have been advised to avoid visiting health care facilities. Doctors are busy – they don't want to be bothered to write a note to your employer. And U.S. District Judge Edward Chen agreed as he was recorded as responding that "getting a doctor's note may be problematic…" The judge suggested the gig rideshare company consider offering a self-certification process for drivers who can't easily gain access to a physician. 

Back to the Drawing Table to Seek a Better Temporary Solution:

While Uber argued that the temporary sick leave policy combined with the federal Families First Coronavirus Response Act and CARES Act, would provide more for affected drivers than employees receive under California state law, Judge Chen instructed both parties to try again suggesting an interim, pandemic-specific policy allowing drivers to access paid sick leave without a doctor's note or personal quarantine order.

If you need to discuss how to file a misclassification lawsuit or if you have questions about employment law violations amid the Covid-19 crisis, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Will Uber Drivers Choose Between Employee Status and Covid-19 Pay?

The arrival of the novel coronavirus left Uber drivers with a strange choice. Is immediate relief worth giving up on the end goal? Should they choose Covid-19 pay over employee status?

Capriole v. Uber Technologies Inc.: Transferred to California Court

Initially filed in Massachusetts federal court, Capriole v. Uber Technologies Inc. was transferred to the Northern District of California, where several almost identical lawsuits were already in process. Plaintiffs in the cases are gig drivers naming Uber and Lyft as defendants. Capriole claims Uber misclassifies drivers as independent contractors and fails to provide drivers with paid sick leave. The lack of paid sick leave and other traditional employee benefits posed apparent problems for drivers who sought benefits afforded those with employment status.

Covid-19 Makes this Misclassification Issue Harmful to the General Public

The spread of Covid-19 introduced a new, more universally felt consequence to this particular issue. Drivers with no access to sick pay are more likely to continue working while they are sick. As a result, the public, currently struggling to face the spread of Covid-19, is taking note of the situation. Uber drivers, when confronted with the choice to stay home with no pay and risk their livelihood, their housing, and ability to provide the necessities, are instead choosing to continue working even though they may risk exposing hundreds of passengers each week by doing so. 

The History of the Case:

Before the lawsuit was transferred to California, the plaintiffs sought a preliminary injunction to require Uber to reclassify drivers as employees and comply with wage and hour law (including laws requiring paid sick leave), urging the court to adopt California case law as precedent. Still, the Massachusetts court denied the application citing insufficient evidence of the risk of irreparable harm. Since the case was transferred to the Northern District of California, it has been renewed as an emergency motion, and the judge ordered the parties to start negotiations to come up with a temporary solution.  

The Introduction of Uber’s Covid-19 Sick Pay Policy:

Uber introduced a financial assistance policy for active drivers during the pandemic on April 10th. The updated plan would allow drivers to take advantage of up to 14 days of financial assistance if they test positive for Covid-19, are placed in quarantine, if a public health authority or licensed medical provider asks them to self-isolate, or if Uber restricts their account after a public health authority indicates the driver may have been exposed to Covid-19. While the policy is more generous than California law requires in terms of “time,” the eligibility requirements appear to be more restrictive.

Temporary Measures Do Not Address the Actual Problem:

Drivers, at least initially, are rejecting the proposed compromise stating that while it addresses a problem in the current scenario, it does not solve the actual problem. Drivers insist that the issue is not limited to whether they are sick or not, etc. but whether they are entitled to wages and the other traditional benefits of employment under California labor law. Some are calling the financial assistance Uber offered through the recently updated policy a bandaid that is preventing (or at least delaying) resolution of the underlying problem.

If you have questions about misclassification or if you need to file a California overtime lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

How is California’s Labor Bill AB5 Affecting the Covid-19 Crisis?

In the current landscape, many of California’s independent contractors and freelancers claim Labor Bill AB5 adds fuel to the fire during the Covid-19 crisis as it further restricts work opportunities.

Unprecedented Unemployment During Covid-19 Has Many Looking at AB5:

The COVID-19 crisis has resulted in unprecedented levels of unemployment across California. With more workers being laid off every day, thousands are starting to look at California Labor Bill AB5 and claim it is making the economic outlook worse.

How Does California Labor Bill AB5 Affect California Amid Covid-19 Crisis?

Legislators, business owners, and many economists are starting to claim that the 2019 bill impedes the state economy and places a burden on the health care system at a point when it is already strained by the novel coronavirus and resulting Covid-19 crisis. According to local media, many hospitals rely on independent contractors to provide health services (particularly in rural areas). With thousands of California workers facing Covid-19 pandemic inspired unemployment, AB5 leaves them in a tight spot, where it’s close to impossible to take on temp jobs from home.

Will the Governor Suspend AB5 Amid Rising Unemployment Due to Covid-19?

Republican candidate for the 50th Congressional District, Darrell Issa, asked Governor Newsom to suspend AB5, insisting that independent contractors and freelancers should be allowed to work. Over 17,000 have joined the Freelancers Against AB5 Facebook, claiming the new law strips them of their freedom, flexibility, and livelihood. As other politicians join the fray calling for the bill to be repealed, the governor has so far not relented. In response to the governor’s response, petitioners are circulating. One such petition, called Freedom to Work, calls upon citizens to “Repeal AB5 Now” and “join the fight!”

California Labor Bill AB5 Was Designed to Address Rampant Workplace Violations in the Gig Economy:

Legislators designed AB5 to protect more than one million gig economy freelancers by making them eligible for benefits. Under AB5, employers are required to meet strict requirements to classify workers as independent contractors (who do not qualify for employment benefits like health insurance, and unemployment). Even before the coronavirus made itself known, AB5 was inspiring widespread layoffs as companies couldn’t meet the increase in labor costs. When coronavirus arrived on the scene, thousands of California’s freelance workers were already out of work.

California Workforce Calling for Flexible Employment Amid Covid-19 Crisis: 

Lorena Gonzalez, the bill’s author, created the law to push employers to recognize their independent contractors as employees, which would make them eligible for employee benefits. Still, many independent contractors believe the bill backfired and that it takes their rights away. Many Californians are calling for change, insisting that right now, it’s more important than ever to have access to flexible employment. Consumers need to be connected by the services many of these independent contractors provide during the crisis, from online tutors to food delivery drivers and even online health professionals. Activists seeking a repeal of AB5 insist that if the goal is minimizing economic damage, AB5 makes no sense, and is hurting the state’s response to the virus.

If you need to talk to someone about employment law violations related to AB5 or Covid-19, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California Employers Facing Novel Employment Law Challenges Due to Coronoavirus

California employers are facing new and difficult challenges due to the spread of coronavirus. Many are facing difficult employment law compliance questions.

The spread of the novel coronavirus is presenting extraordinary challenges and the possibility of new responsibilities. Some California businesses are wondering if courts will eventually be asked to judge whether or not alleged actions taken by a company or employer contributed to the spread of the virus?

Increasingly Severe Guidelines & Defining the Legal Duties of California Employers:

The severity of guidelines imposed by California authorities are increasing; bans on movement, bans on gatherings, etc. Privately owned entities throughout the state are unsure how to act, and in some cases, are engaging in over-compliance with sporting event suspensions and workplace closures. Amid the various guidelines and recommendations, what are the legal duties of California employers during the coronavirus crisis? In order to define an employer's legal responsibilities in connection to employment law questions during the Covid-19 pandemic, it's best to pose the questions they are struggling to answer.

What Should a California Employer Do If an Employee Tests Positive for COVID-19?

If a California employee tests positive for COVID-19, the employer should issue a broad warning after considering the potential reach of the exposure, considering all those within any degree of its control. For example, in a 2013 case, the court held Long Island Railroad liable to a cashier at a diner. The railroad knew its employees were entering the diner carrying asbestos on their gear. While the railroad did not own the diner, the court held them liable because they term in the diner's lease allowed the railroad to dictate the diner's hours of operation, which amounted to exercising control over the restaurant. Since they held this "control," they also held a duty to warn. 

What Information Should a California Employer Include in a Warning?

If issuing a warning in response to an employee testing positive for Covid-19, the employer should include all known information. While actual risks may be minimal, the reported risk of death must be factored in alongside the duty to warn. Make the warning as complete as possible while addressing the privacy concerns of the affected employee.

What Protective Measures Should an Employer Take if an Employee Has Covid-19? 

After an employee tests positive for Covid-19, a California employer should take additional reasonable protective measures. When issuing warnings and recommendations, employers should also consider their degree of control over their employees and their employees' required job duties. For example, if an employee cannot complete their job without avoiding potentially affected places, a warning is not sufficient response to a positive Covide-19 test in the workplace. In this situation, the employer has a responsibility to provide employees with a safe workplace. Implement proper infection-control processes to minimize the chance that potentially infected areas and people do not spread the virus. If an employer has concrete information that a workplace may be infected (i.e., an employee's positive Covid-19 test result), there is an inherent duty to remedy the situation. Doing so may require thoroughly disinfecting the workplace and requesting that exposed employees self-quarantine.

How Can an Employer Protect Themselves If Their Workforce is Exposed?

If an employee in the workforce tests positive for Covid-19, the employer should alert authorities and follow official guidance to help show that they were actively seeking to implement appropriate and reasonable measures in response to the situation. It is also a good idea to consider how peers and competitors are responding to similar situations. Many companies have adopted processes that surpass the requirements put in place by health authorities, such as closing offices, closing venues, canceling events, etc. In future cases related to Covid-19, plaintiffs will present (and juries will be allowed to consider) information about measures other companies and groups instituted at the time as examples of appropriate conduct. 

Do California Employers Need to Do Anything if They Are Not Aware of Any Covid-19 Exposure?

If an employer is not aware of any specific contact with coronavirus in their workforce or their business, they can still take reasonable and appropriate actions.

Stay Informed: Be aware of the potential dangers. Designate someone as responsible for keeping informed of the spread of the epidemic and any developments in areas related to the company, any of the company's locations or any of the company's employees. Make sure employees know how to report any suspected exposure.

Alert Employees: Make sure employees are aware of the general risks of the coronavirus and offer them necessary guidance and information regarding how to stay safe, like washing hands regularly throughout the day. 

Implement Reasonable Preventive Measures: As always, employers should maintain a safe workplace. Right now, that means staying ahead of the coronavirus by minimizing chances of infection and exposure in the workplace. Depending on the type of business, this may mean canceling non-essential travel (particularly to areas with high rates of infection), providing sick workers with the chance to stay away from the workplace, encouraging workers to telecommute when possible, etc. Clean and disinfect to keep the workplace free of the SARS -CoV-2 spores that cause COVID-19. Preventive measures will help California employers avoid liability for creating an unsafe work environment.

In these unprecedented times, there are a myriad of potential legal issues related to the spread of the novel coronavirus. If you have questions about California employment law issues connected to the spread of Covid-19, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.