Employment Law Issues: Are Nurses Being Punished for Speaking Out About Coronavirus Unpreparedness?

Some say that nurses know we were not prepared for the coronavirus, and those who speak out are punished.

Nurses Not Provided with Basic Personal Protective Equipment: 

Chelsea Halmy worked the night shift at Providence St. John’s Health Center in Santa Monica. When she reported for her shift on April 11, 2020, she made a routine request for an N95 respirator mask before she came into contact with patients. As an experienced healthcare professional, she was well aware that the N95 masks were the most effective protection against the novel coronavirus. Yet the routine request was declined by her supervisor, who advised her that a standard surgical mask was good enough.

Speaking Out About Unsafe Work Environments:

Halmy refused to work with patients until she was provided with the N95 equipment. After her refusal, she was taken to a closed room where her supervisor read from a script that threatened to charge her with insubordination and a “patient abandonment” report to the state Board of Registered Nursing (which could result in the loss of Halmy’s hard-earned nursing license). 

Retaliation in the Workplace for Refusing to Work in Unsafe Environments:

Her supervisor then asked her if she would accept a direct order to work with a specific patient who was a Covid-19 patient. She responded that she did want to take her assignment but didn’t feel comfortable going into the room with the patient without an N95 respirator. Three other nurses were allegedly subjected to the same treatment that same night, and seven others earlier that same week. All the nurses who did not accept their patient assignment without the requested N95 respirator were sent home. Since that time, the hospital has backed away from its stance that N95 masks are not necessary for nurses in the unit, but the ten nurses are still on suspension.

Nurses and Healthcare Professionals Throughout the Nation Are In Similar Situations:

Nurses at UC Irvine Medical Center, UCLA Medical Center, and many other healthcare facilities throughout California have participated in multiple candlelight vigils and protests since January 2020 in an attempt to bring attention to conditions and the need for additional protective gear and N95 respirators so they can safetly treat coronavirus patients. Registered nurse Patty Pinedo actively sought to treat residents in a West L.A. hotel that was turned into housing for the homeless during the coronavirus pandemic.

Other Essential Workers Are Also Facing Likely Exposure During Covid-19 Pandemic: 

Many other front-line occupations that require direct contact with others can result in dangerous levels of exposure to the virus, like grocery store workers, delivery drivers, etc. But most will agree that healthcare workers are the most vulnerable at this time since their work requires them to come into contact with the virus and to be in close contact with Covid-19 patients in confined spaces. Nurses spend more time with patients than most other hospital employees and staff, and the coronavirus is taking its toll on California healthcare workers. In addition to the threat of exposure to the virus, nurses seem to be suffering an outbreak of threats of termination and discipline from management in response to routine requests for standard safety equipment (or PPE), or public complaints about their facility’s lack of preparation.

More and more healthcare professionals are speaking out about unlawful practices and policies being instituted by healthcare facilities in response to shortages and unpreparedness during the Covid-19 pandemic.

If you need to file a whistleblower lawsuit or if you need to discuss workplace retaliation, don’t hesitate to 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.

Whistleblower Claims Litter the Horizon During the Covid-19 Crisis

In the past several weeks, we have seen some mighty changes due to the spread of the coronavirus. In recent weeks, we’ve also seen many employees (particularly health care industry employees) claiming workplace retaliation after reporting health and safety concerns in connection to Covid-19 and exposure to the rapidly spreading coronavirus.

Whistleblower Claims Due to Covid-19 Pandemic on the Horizon: 

According to a recent article in the Washington Post, OSHA (Occupational Health and Safety Administration) had already received thousands of complaints from employees just a week into April 2020. The allegations were from employees citing a lack of protections against Covid-19 in their work environments. On April 8, 2020, OSHA released a press release urging employers to remember that it is illegal to retaliate against workers that report unsafe or unhealthy conditions in the workplace during coronavirus.

What is the Occupational Health and Safety Act of 1970/  

The Occupational Health and Safety Act of 1970 (OSH Act) is one of the whistleblower protections, and anti-retaliation statutes employees can depend on for protection during the Covid-19 crisis. Section 11(c) of the Occupational Health and Safety Act of 1970 prohibits employers from retaliating against employees that exercise their rights under the statute, including raising a health or safety complaint.

Does the Law Require Employers to Provide a Safe Workplace?

In Section 5(a)(1) of the OSH Act (often referred to as the General Duty Clause), employers are required to provide a workplace free from “recognizable hazards” that are likely to cause death or severe harm.

Does OSHA Enforce Any Regulations Specific to Health Concerns Associated with Covid-19?

OSHA also enforces regulations that are specific to health concerns that have been associated with Covid-19.

29 CFR § 1910, Subpart I: Outlines OSHA’s Personal Protective Equipment standards requiring the use of gloves, eye and face protection, and respiratory protection for employees working in specific industries. 

29 CFR § 1920.134: Defines OSHA’s Respiratory Protection Standard and requires that employers implement a comprehensive respiratory program when respirators are necessary to protect workers. 

OSHA recently issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for health care workers during the COVID-19 pandemic.

OSHA’s Guidance on Preparing Workplaces for COVID-19, a recently published document related to the current crisis, contains recommendations for employers on how to provide a safe and healthy workspace during the COVID-19 crisis. 

What is the National Labor Relations Act? 

Certain sections included in the National Labor Relations Act prohibit employers from retaliating against an employee for various reasons. A March 30, 2020 decision from the National Labor Board (Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276) indicates that this section applies to healthcare workers voicing concerns about working conditions in health care facilities. 

California Whistleblower Statutes Amid Covid-19 Crisis: 

In the state of California, we have numerous statutes that offer employees the right to make a whistleblower or workplace retaliation claim. Some of the laws are specific to healthcare workers. 

California Health and Safety Code § 1278.5: Designed to encourage medical workers to report suspicions of unsafe patient care and conditions to government entities, it prohibits healthcare facilities from retaliating against an employee or worker for presenting a complaint related to the quality of care, services or facility conditions. 

California Labor Code § 6310: Prohibits employer retaliation against employees who complain about employee safety or health. 

California Labor Code § 6311: Prohibits employer retaliation against employees who refuse to violate occupational safety or health law or any duty that would create a hazard to themselves or other employees during their job.  

Tameny Claim: In California, employees may bring a common law claim for retaliation or a Tameny claim. Policies that can give rise to a Tameny claim include protections against retaliation for reporting unsafe working conditions. Employees can bring a Tameny claim in addition to claims arising under California’s whistleblower statutes.

If you need to discuss workplace retaliation or if you need to file a retaliation 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.

Caltech Whistleblower Case Jury Trial Currently Underway

Farshid Roumi, a Caltech scholar, was allegedly fired for whistleblowing. Roumi worked in Pasadena-based Caltech’s engineering and applied science division. In 2017, Roumi filed a lawsuit in Los Angeles County Superior Court alleging retaliation and wrongful termination.

Roumi claims that he was fired after he exposed misappropriation of funds from the Department of Energy. Superior Court Judge Monica Bachner is presiding in the downtown Los Angeles Stanley Mosk Courthouse courtroom.

Roumi finished his doctoral dissertation at Caltech in 2010, “Shape Changing Transformations: Interactions with Plasticity and Electrochemical Processes.” He currently works as the Chief Executive Officer of his own company, Parthian Energy.

The whistleblower retaliation lawsuit Roumi filed is not the first that Caltech will face. In 2014, a Caltech professor, Sandra Troian, filed a complaint alleging retaliation after she provided the F.B.I. with information about a researcher who released restricted data to Israel and then made it public. Troian alleged that retaliation followed in the form of false accusations of research misconduct, prevention of her participation in campus events, and being denied over $1 million in grant funding.

Caltech’s official policy clearly prohibits retaliation. To quote policy, Caltech  “prohibits retaliation against an individual who makes a good faith disclosure of suspected wrongful conduct.” The Institute also maintains whistleblower hotlines online or by phone.

If you need to discuss labor law violations or if you are experiencing retaliation in the workplace, take action to get the resolution you deserve. Get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw L.L.P. With conveniently located employment law offices in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago; we are here when you need help.

Former Freelancer Loses Lawsuit Against LA Times

In recent news, the LA Times took home a win after the California Court of Appeals affirmed the dismissal of a former freelancer’s defamation and employment lawsuit. The former freelancer, Frederick Theodore Rall III, was a political cartoonist and blogger for the well-known media conglomerate. In his lawsuit, he brought claims of defamation, wrongful termination, intentional infliction of emotional distress, retaliation, and other employment law violations, against the paper – all stemming from the LA Times’ decision to disassociate itself with Rall and publish a note to readers that questioned the accuracy of a blog post Rall posted describing an interaction he had with police. Rall claims that he was handcuffed, thrown against a wall, and in the process his ID was thrown into the gutter.

After an investigation, the LA Times concluded that there were serious questions regarding the accuracy of the recounting of events and allegations made against the police in the recounting. They noted factual inconsistencies and stated that the paper would no longer be publishing the writer’s content. After reader responses, the paper published an additional item that offered a more detailed analysis of the event with their investigation findings including the LAPD records of the event, etc.

The LA Times filed an anti SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the complaint in response to Rall’s lawsuit. The motion was granted by the trial court. The dismissal was confirmed by the California Court of Appeal – holding that the LA Times sufficiently established that the report offered to readers and the decision by the paper to stop publishing work by Rall were protected activities under the First Amendment and the “fair report privilege.”

If you have been wrongfully terminated or if you need to discuss your rights in the workplace and how to seek justice when you have been discriminated against on the job, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

FedEx Retaliation Case Results in Payout of Millions

Three employees (one former and two current) at a LAX FedEx location were collectively awarded millions of dollars by a jury. The jury found that the employees were wrongfully disciplined by FedEx after they came forward to report allegations that the courier giant was prioritizing profits over safety in not maintaining aircraft in compliance with FAA safety requirements. The verdict was reached on October 19, 2018 after the Los Angeles Superior Court panel deliberated for over a week.

The California retaliation suit was filed by Brian, Gruzalski, FedEx aircraft mechanic, and Stanley Langevin and Mark Collins, FedEx employees.

Awards Received by Plaintiffs in the Case:

·      Gruzalski: $855,000 in compensatory damages and $3.8 million in punitive damages

·      Collins: $260,000 in compensatory damages and $2.75 million in punitive damages

·      Langevin: $144,000 in compensatory damages and $200,000 in punitive damages

FedEx claims that Gruzalski was fired for valid reasons, citing inappropriate language in the workplace, with some of it being racially charged. The company also claims that Langevin was demoted due to alleged moonlighting on company time for other airlines using FedEx equipment and that Collins’, as their supervisor, did not use his authority to call a halt to these behaviors.

FedEx claims that while FedEx jets are older than others in the fleet, they are all flightworthy.

Langevin is 69 years old and lives in Long Beach. He has over 40 years of experience as an aircraft technician and is an Air Force veteran. He claims he was retaliated against for complaining about the condition of the FedEx aircrafts. Langevin noticed that FedEx routinely and willfully returned aircraft to service that were non-airworthy due to the need for additional repairs/maintenance that would make them compliant with federal aviation regulations. The company pushed the aircrafts back into service quickly and cheaply in order to increase profits regardless of federal aviation regulation compliance. For example, FedEx regularly failed to repair corrosion that was extensive enough to result in cracking the aircraft’s outer frame prior to putting them back in the air.

Collins is 60 years old, a Navy veteran who fought in the Persian Gulf War during Operation Desert Storm and lives in Claremont. He claims he faced backlash in the workplace for defending Langevin and voicing similar claims in his support. This resulted in a demotion.

If you have questions about workplace retaliation or if you need to discuss wrongful termination, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Settlement Between Former Employee and NFL Network Approved

A settlement was approved for a lawsuit brought against the NFL Network by a former wardrobe stylist, Jami Canton. Canton claimed a slew of labor law violations, including: sexual harassment, age discrimination, workplace retaliation, wrongful termination and defamation. The settlement was approved by Los Angeles Superior Court Judge Michael Stern after Jami Cantor filed a motion to resolve the suit seeking civil penalties. In exchange for the settlement, Cantor agreed to drop all claims.

Donovan McNabb and Eric Davis, former NFL Network analysts, were both fired in January by ESPN after a month-long investigation into claims of inappropriate behavior on the job made by Cantor. Cantor, as an aggrieved employee, will receive 25% of the approved settlement amount while the other 75% will be distributed to the state Labor & Workforce Development Agency (LWDA). The LWDA is a cabinet-level state agency responsible for coordinating workforce programs and oversight of seven different departments that deal with benefit administration and upholding and enforcing employment laws of the state of California.

Cantor filed the California lawsuit in September. In the complaint she claimed she began work in 2006 and was employed at the NFL’s Culver City studio. As part of her job, Cantor claims she was responsible for creating a wardrobe closet to make sure that talent would have clothes to wear for the NFL shows. During the course of her employment, Cantor alleged that she was subjected to numerous instances of sexual harassment at the hands of a number of different NFL employees. Claims of harassment included: inappropriate touching, inappropriate references, inappropriate comments, texted photos of a sexual nature, etc. All this while Cantor repeatedly made it clear that the advances were unwanted and not reciprocated.

Cantor claims that nothing was done in response to her complaints and that rather than assisting her with the situation, the NFL made her life more difficult by increasing her workload and decreasing her hours. In addition to the harassment claims, Cantor levied a number of other labor law violation complaints against her former employer, including: failure to pay overtime, failure to provide required meal and rest breaks, failure to reimburse for business expenses, and wrongful termination.

Cantor was fired in October of 2016. She claims she was falsely accused of stealing clothing from an employee. She also claims that internal video would prove that she had not taken anything. When she was terminated, Cantor was 51 years old. Her replacement was 30 years old.

If you have questions about overtime pay, harassment in the workplace or wrongful termination, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Whistleblower Lawsuit Filed Against Local California Business

Susanne Bjornson, a former employee of a local home furnishing store, filed a whistleblower lawsuit claiming wrongful termination and emotional distress. Bjornson claims that her previous employer falsified a declaration and forged her signature in order to defeat a valid Workers’ Compensation claim. Bjornson filed an employment lawsuit in the Santa Barbara Superior Court against Celadon House.

Celadon House operates retail furniture stores in both Santa Barbara and San Luis Obispo. Bjornson, who was employed at the Santa Barbara retail location, alleges she was working on the day that one of her co-workers was injured in the course of moving some furniture. The employee who sustained the injury filed a Workers’ Compensation claim.

According to the plaintiff’s legal counsel, Celadon House did not carry Workers’ Compensation insurance (a violation of California law). The two owners of Celadon House, Kelli Thornton and Cherisse Sweeney, allegedly prepared a Declaration including Bjornson’s name without her knowledge or consent. In the Declaration, it stated that the injured employee had not moved furniture on the day they sustained their injury and that the employee did not report the injury. Allegedly, one of the two Celadon House owners then completed the false Declaration with Bjornson’s forged signature.

Bjornson insists she was never questioned by the two owners or anyone else at the company about the injury or the day the injury was sustained and that the statements that are being attributed to her in the official Declaration document are false. Due to the false Declaration, the injured employee’s Workers’ Compensation benefits were denied. Soon after the denial, Bjornson was notified of the Declaration. Bjornson, fearing that she could be implicated in an unlawful act, felt compelled to immediately resign her position with Celadon House.

The plaintiff’s counsel argues that as the working conditions were so intolerable that Bjornson, as a reasonable person, had no other alternative than to resign her employment, it constitutes a “constructive” discharge of employment – meaning that the resignation is equal to termination.

If you have questions about what constitutes wrongful termination or if you have been wrongfully terminated, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.