Discrimination & Workplace Retaliation: KKK Hood Placed in Worker’s Station

Isiah Washington, a 27 year old African American factory worker, claims he was fired in retaliation after he reported what can only be described as an inappropriate action taken in the workplace: racist co-workers hung a Ku Klux Klan “hood” in his workstation. This alleged act of racial discrimination also constituted a hostile work environment for the former employee of Sierra Aluminum Company in Riverside, California. As a result of the occurrence last April, Isiah filed a racial discrimination suit against the company.

Washington claims that the “hood” was clearly a symbol of the KKK, one of the most violent and ruthless organization in the history of the country. He also claims that when it was reported, the company not only didn’t respond, but they didn’t even pretend to take it seriously, even though Washington noted that this particular incident was the final move in a months long campaign of discrimination. He stated that he was scared and felt very threatened in the situation. When he asked his supervisor to “please take it down” the supervisor blew Washington off. He states that the supervisor started talking to other employees and that they all began laughing. Washington remembers that he was scared for his life and “everyone was laughing” (including his supervisor to which Washington had just reported he incident). Washington claims in the lawsuit that the offensive (and terrifying) white sheet remained above his workstation for another hour while he continued his work. He clarifies that he did not see it as a prank or a joke, but as an intimidation technique – a threat.

Washington filed a complaint with the company’s HR department about the incident. It was ignored. The firm actually claimed that the “sheet” must have been blown in with a gust of wind. Seeing the action as a threat that wasn’t addressed in any way by the company, Washington alleges he had to continuously watch his back on the job – resulting in extreme emotional distress, fear and even anxiety. From that day on, Washington had to put up with derogatory comments from his co-workers.

At Washington’s request, the company agreed to move him to a different shift, but he ran into trouble again a few months later. After accidentally cutting his thumb on some aluminum, Washington covered the cut with a band-aid. On the following day, his supervisor questioned him about the incident – wondering why he had accessed the First Aid box on site. He replied and advised his supervisor that he was fine at which point the supervisor insisted that Washington visit the company driver and that he allow someone to drive him. Wary because of the recent negative activity in the workplace, Washington declined the ride to the doctor and advised the supervisor he could drive himself. The supervisor became angry and advised Washington he could no longer go to the company doctor. He went anyway and received clearance to work. When he returned to work the next day, he was fired. The reason he was offered for his termination was that he did not follow company policy.

Washington feels that the company obviously used this situation as an excuse so they could fire him, which could be referred to as wrongful termination.

If you have concerns about discrimination in the workplace, workplace retaliation or wrongful termination, please contact the experienced southern California employment law attorneys with your questions at Blumenthal, Nordrehaug & Bhowmik.

Desperate Housewives Star Files Retaliation Lawsuit

Many have heard of the popular TV series called the Desperate Housewives. Of those who watch the show, almost all should be familiar with Nicollette Sheridan. She has been called the most “risqué” of the women on the show. In most recent news, she may be better known for her recently filed lawsuit.

According to Sheridan, she got into a verbal argument on set with the writer/creator of the show, Marc Cherry. She claims that the argument ended when Cherry slapped her. According to Sheridan, this was battery. According to Cherry, this was stage direction.

Sheridan responded to the incident by complaining to the network as well as the show’s producer. The next year, her character, Edie Britt, was killed in the midst of the show. Sheridan saw this as retaliation for her complaints regarding the “battery” on set the previous year and filed a lawsuit claiming such. The lawsuit was twice dismissed by trial courts and revived twice by the court of appeal.

What secret, sordid detail led to such an intriguing on again, off again response from the courts? It’s not nearly as intriguing as one might expect from a plaintiff known for being “spicy.” In fact, it’s downright boring. The question that is causing the confusion is this: Did Sheridan have to file an administrative complaint with the Labor Commission before suing?

According to the court of appeals, she did not have to file such a complaint. Their decision was based on a brand-new labor code stating:

“A person is not required to exhaust administrative remedies…unless the section under which the action is brought expressly requires it.” The sections referenced in this case are not seen to “expressly require” it as they use the term “may” instead of “shall” in regards to filing a claim with the Labor Commission. The court of appeals does not feel that the word “may” indicates a mandatory requirement. This resulted in the reinstatement of her case allowing Sheridan the opportunity to seek resolution in court.

If you need to discuss on the job battery or if you have other questions regarding southern California employment law, please get in touch with the experienced attorneys at Blumenthal, Nordrehaug & Bhowmik.  

Allegations of Retaliation from Former Korn/Ferry Executive

May 4, 2015 - Korn/Ferry International is the world’s largest executive search firm. This makes it big news that the firm is currently in the midst of an intense legal dispute over the termination of one of their top executives, Robert A. Damon.

Robert A. Damon is a former executive chairman of the Americas. In a recent lawsuit he alleges that he was fired in retaliation for his complaints about Chief Executive Gary Burnison’s treatment of a number of female employees. Mr. Damon made his complaints regarding the inappropriate treatment of his colleagues to board members. As a result of his firing, Damon alleges that he lost over $1.7 million in deferred compensation because he was fired for cause. Korn/Ferry denies the allegations.

Korn/Ferry claims that Mr. Damon’s complaints are simply an attempt to downplay/deflect the actual reason behind his termination. The company states that Mr. Damon was “terminated with cause” due to inappropriate personal behavior, flagrant violations of company policy, and material breaches of his employment contract.

Having the dispute go public holds potential embarrassment for the high-profile search firm as they market themselves as a provider of “talent management solutions.” The suit was filed by one of Korn/Ferry’s very own “talents.” Mr. Damon, age 67, was recruited by Korn/Ferry back in 2004 as president of North America, the company’s most substantial unit. He was later promoted to oversee the company’s Americas region.

Korn/Ferry’s 444 recruiters have helped to place leading executives at major corporations such as: Office Depot, Inc., Target Corp., Major League Baseball, etc. Korn/Ferry has held the top spot in the global and US search industry for over 10 years. Korn/Ferry’s own Mr. Burnison. Who has led the company since 2007, has written three different leadership books during his time as CEO. Mr. Burnison, Korn/Ferry CEO, is named specifically as a defendant in the lawsuit alongside Korn/Ferry with allegations that he engaged in a pattern of abuse and discrimination negatively affecting female employees. Allegations state this the discrimination and abuse towards female employees began in 2010.

Experts indicate that Damon’s suit against Korn/Ferry is exciting because it’s not very often that male employees sue employers for retaliation as a result of speaking out about alleged discrimination and abuse of women in the workplace. 

For answers to your questions about discrimination against women in the workplace, contact Blumenthal, Nordrehaug & Bhowmik, your southern California employment law attorneys.

Record Number of OSHA Whistleblower Investigations

OSHA has officially reached a milestone in federal whistleblower cases: they have investigated over 3,000 cases in a fiscal year. It’s the first time they have handled this many cases in one fiscal year. According to OSHA, they took on 3% more cases in 2014 (fiscal year) than they did in 2013 (fiscal year). The actual number of whistleblower complaints wasn’t disclosed by OSHA, but a study conducted by Bloomberg BNA in 2014 indicated that only 41% of the complaints made passed the initial screening process and resulted in further investigation (from cases filed 2011-2013).

The meaning behind the increase in cases investigated isn’t clear, but some point to the increased amount of media attention that is being given to substantial settlements and awards being offered to plaintiffs in whistleblower cases. The new high in case filings aside, OSHA’s Whistleblower Protection Advisory Committee’s chairperson, E. Spieler, indicated that there had been predictions that the caseload would increase at OSHA due to the introduction of online filing for whistleblower complaints that occurred in 2013. In combination with the release of the online filing capability, findings in late 2013 by the U.S. Supreme Court on whistleblower provisions (Sarbanes-Oxley Act (SOX)) hold that statutory protection extends to a public company’s private contractors/sub-contractors.

The bulk of the cases were related to safety:

• 1,729 filed under the anti-retaliation clause, Section 11(c)
• 463 filed under the STAA
• 351 filed under the Federal Railroad Safety Act

The growth of cases could spring from a 2014 memorandum of understanding between FMSCA and OSHA. The memorandum put OSHA in charge of handling cases involving commercial vehicle drivers making allegations of discrimination based on the reporting of safety issues.

For more information on safety regulations and standards in California workplaces, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Tameny Claims Based on Whistleblower Laws: Recent California Appellate Decisions Expand Scope

There were two recent decisions regarding whistleblower protections that could have a significant effect on the scope of claims based on Whistleblower Laws. The two decisions noted were issued by two separate districts of the California Court of Appeal with both courts issuing a reversal of trial court dismissals of claims for wrongful termination.

The two cases that received the recent reversals were: Ferrick v. Santa Clara University and Diego v. Pilgrim United Church of Christ.

Ferrick’s case was originally dismissed on the basis that her allegations of misconduct on the part of her director involved the financial interests of a private university rather than the required “public at large.” The Court of Appeals upheld this decision, but found specific aspects of Ferrick’s case that did state a cause of action for wrongful termination in violation of public policy, albeit on a narrow basis. The specific instance that caused the reversal was that Ferrick appeared to have reasonable cause to suspect commercial bribery. When she disclosed these reasonable suspicions it was to the university’s budget director. The misconduct that followed this specific instance was found to be not only affecting the university’s private financial interests, but also held implications of public policy that is embodied in Labor Code section 1102.5.  

Diego worked at the Pilgrim United Church of Christ preschool as an assistant director. In response to an anonymous complaint from an employee regarding a “foul odor” in a classroom and inadequate amounts of sand underneath playground equipment, the state licensing division conducted an unannounced inspection of the premises. No violations were found. Diego claims that the director of the preschool suspected she filed the complaint and in response, Diego was discharged several days later. Cause stated was insubordination, as she did not attend a meeting that was scheduled during her vacation. When Diego filed suit for wrongful termination, Pilgrim United protested that (according to former California Labor Code section 1102.5(b) which was in effect at the time of Diego’s termination) protection is only granted to employees who actually disclose state regulation violations. Their argument was that Diego was not protected by the stated employment law because she “did not file the complaint.” The trial court dismissed Diego’s case, but she appealed. The California Court of Appeal disagreed with the trial court stating that the public policy behind section 1102.5(b) wasn’t limited to employees who actually reported violations, but also included protection for employees who were suspected of reporting violations to state agencies. They noted that the intent of the law was to make employees comfortable reporting violations and to exclude employees “perceived” as whistleblowers from the protections offered by the statute would instead of a discouraging effect that would keep more employees from reporting violations.

To note: Labor Code section 1102.5(b) was amended as of January 1, 2014 to protect employees from retaliation based on the employer’s belief that they disclosed a violation. Claims for wrongful termination in violation of public policy, such as those stated above, are also known as Tameny claims. The California courts of appeal seem reluctant to confirm dismissal or summary judgment when the public policy that is at issue concerns a whistleblower or perceived whistleblower and whistleblower statutes. These two cases indicate that the public policy behind the whistleblower statute should be interpreted broadly in order to increase the protection for employees that may not be offered protection by the statute if interpreted as expressly stated. 

These two cases are significant because in both the courts supported Tameny claims for individuals who, previously, would have been denied protection under the whistleblower law. With Diego we see an employee who never blew the whistle being allowed to pursue a Tameny claim even though in the past the protection from adverse action was only offered to actual whistleblowers. With Ferrick we see an employee pursuing a Tameny claim even though the reports were only made internally. In the past, employees who reported internally were not afforded the same protection as a clearly defined “whistleblower.”

If you need more information on whistleblower laws in California or how California employment law protects employees from adverse action from employers after reporting violations, contact the experts at Blumenthal, Nordrehaug & Bhowmik. 

The National Labor Relations Act of 1935 vs. Your Boss’s Request to Never Disclose Your Salary

It goes without saying that your boss doesn’t want you to talk about your pay with your co-workers. Why does it go without saying? Because…they’ve probably said it. The majority of American workers from fast food workers to administrative assistants to dental hygienists have been advised by their superiors/employers not to discuss their pay with their co-workers. It’s so commonplace that when employers make the request most workers don’t bat an eyelash or question the validity of their employer’s right to make such a demand.

If you consider this request in terms of employment law, any time an employer requests or demands that you keep your pay rate or salary a secret from your co-workers they are breaking the law. 

According to the National Labor Relations Act of 1935 (NLRA), all workers are provided the right to exhibit “concerted activity for mutual aid or protection” as well as to “organize to negotiate with [employers regarding their] wages, hours, and other terms and conditions of employment.” In six states, the law goes further and actually states that workers retain the right to discuss their payment rate.

Employers insisting that you not discuss your pay rate with co-workers are in violation of the law, regardless of whether the request/demand/threat was made verbally or in writing and regardless of what the consequences are of ignoring the often unspoken rule. Sometimes it results in firing, but sometimes consequences are more subtle, i.e. a cold shoulder from supervisors/management.

Gag rules are currently thriving in the American workplace. According to a recent study by the Women’s Policy Research, approximately 50% of the American workforce (across all industries) is not to discuss their pay with their co-workers (either explicitly prohibited or strongly discouraged). The percentage is higher in the private sector (closer to 61%). Gag rules violate fundamental labor rights and create workplace environments that support discriminatory pay structures. Reforms are necessary.

President Obama did recently sign two executive actions that address transparency and accountability in the workplace. These will assist those who work for federally contracted employers, but others are currently on their own. Another bill, the Paycheck Fairness Act, would address the situation for the rest of America’s workers, but it has not yet been passed.

If you have questions regarding the gag rule and wrongful termination, please contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Retaliation and Wrongful Termination: California Family Physician Sues Major Health Organization

A retaliation and wrongful termination suit was filed by a prominent California family medicine physician against one of the largest health maintenance organizations in the nation, Kaiser Permanente West Los Angeles Medical Center. Jay Espejo, M.D., M.P.H., claims he was fired in retaliation after he reported a colleague’s, John Miguel, M.D., pattern of misconduct, i.e. unnecessary prescriptions, and the clinic’s alleged long term pattern of providing medical treatment and prescriptions according to patient demand rather than what is actually medically necessary. Dr. Espejo was employed at the medical center since 2011 and was promoted to partner in June.

According to the suit, Dr. Espejo was fired only two weeks after his promotion to partner. He filed suit for wrongful termination and retaliation claiming that his firing was a result of his reporting that his fellow doctor exhibited a disturbing pattern that enabled “doctor shopping” and involved the prescribing of narcotic drugs without medical need apparent in the patient requesting the prescription. Dr. Espejo claims he saw his fellow physician, Dr. Miguel, provide prescriptions for patients who had histories of suspected drug abuse and who were also exhibiting easily identifiable drug-seeking behavior.

Dr. Espejo claims that Dr. Miguel’s behavior was in direct violation of the Controlled Substances Act on multiple occasions. Espejo’s legal counsel cites emailed responses from Kaiser Permanente regarding the violations as evidence that they created a culture in the workplace that both enabled and supported physicians catering to their patients’ demands, which enabled drug-seeking behavior and abuse, doctor shopping, etc. rather than providing the quality (and necessary) medical care that they should have been offering.

For questions or more information regarding wrongful termination as a result of speaking out against improper conduct in the workplace, please contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.