Landmark Iskanian Decision’s Effect on Private Attorneys General Act (PAGA) Claims

Attorneys are predicting an uptick in PAGA claims that open up California employers to greater financial exposure as a result of the California Supreme Court’s landmark Iskanian decision. The decision strengthened the enforceability of class waivers in arbitration agreements, but also held that PAGA (Private Attorneys General Act) claims can’t be waived in employment arbitration deals.

The decision allows employees to sue on behalf of other workers to recover California Labor Code violation penalties. The issue of whether PAGA and other claims will be decided in a single forum or separately via bifurcation with individual claims going to arbitration and the PAGA claim to litigation has been remanded by the Court. If bifurcated, the lower court could decide to stay one of the matters. Employers would be likely to push for arbitration of individual claims to proceed first in bifurcated matters since the arbitrator’s findings could make a difference in whether or not plaintiffs were able to proceed with PAGA claims in the court system. The argument that employers could present to obtain their end would be that arbitration going first would be more quick and efficient and that putting the individual claims on hold while the PAGA claim is determined isn’t the best use of the courts’ or involved parties’ resources and time. Courts who are overseeing bifurcated cases could potentially choose not to stay the arbitration or litigation. Individual actions are not necessarily dispositive of the issues in the PAGA action – this is something to consider as the potential differences between the individual pursuing a claim in arbitration and the end result the class as a whole is pursuing in court could be notable.

If you have questions on California employment law and how recent landmark decisions could affect your workplace situation, please contact the experts at Blumenthal, Nordrehaug & Bhowmik immediately. 

Preliminary Approval on Uncapped Settlement of Another NFL Concussion Lawsuit

U.S. District Court Judge Anita B. Brody rejected the previous $765 million concussion settlement between the NFL and former players with head trauma who were suing the league, but she offered preliminary approval of the more recent settlement produced saying the NFL would uncap the payments to former players suffering debilitating systems. The first settlement was thrown out because Judge Brody felt that the $765 million would be insufficient to cover the lifetime of the 65 year settlement. Her preliminary approval of the new settlement left the former players another step closer to receiving payment from the NFL. 

The plaintiffs are pleased with the preliminary approval and state that the settlement for retired NFL players and their families is extraordinary. It would apply to those suffering from neuro-cognitive illnesses today to any who suffered head injury without current signs of major damage, but who fear serious symptoms could develop in the future. The settlement would provide guaranteed benefits and long-term security. They look forward to finalizing the agreement.

The NFL’s response was to offer gratitude to Judge Brody for her guidance and thoughtful approach to the serious issues being addressed. They state that they will work with the plaintiffs’ counsel in order to implement the terms of the settlement as per the Court’s final decision.

According to the terms outlined for the compensation program, funds would be established and retired players would qualify to use the funds if they were to develop a qualifying neurocognitive condition. The plaintiffs now have 90 days to opt out or challenge the settlement. At that point in time Brody will be able to give her final approval of the settlement agreement.

For additional information or to ask questions regarding employment law please contact the experts at Blumenthal, Nordrehaug & Bhowmik. 

California Supreme Court and Questions Defining “Employers” Liable for Wage Violations

Ramifications of Ayala v. Antelope Valley Newspapers could result in changes for California workers. The California Supreme Court unanimously affirmed a Court of Appeal decision that reversed the denial of class certification in the independent contractor misclassification case. Judge Werdegar, Justice Baxter and Justice Chin all concurred that the Court of Appeal correctly reversed the trial court decision that denied certification in the case of Ayala v. Antelope Valley Newspapers. In the case, Newspaper delivery workers filed against a daily newspaper. They were classified as independent contractors and as such, were denied minimum wage payment, overtime pay, minimum rest and meal period premiums, as well as employer contributions toward Social Security.

The trial court held that there were too many individual inquiries necessary in order to determine how the various newspaper delivery workers handled their day to day operations, but the Supreme Court felt that the trial court missed the point of the case: whether a common law employer/employee relationship exists dependent upon the degree of the hirer’s right to define/control the relationship or how the end result is actually achieved. The Supreme Court further explained their decision by pointing out that while there was evidence of variation in work habits between newspaper carriers, which supports claims made by Antelope Valley’s position that they didn’t control their carriers’ work, this fact didn’t negate the actual question at hand. How much right does the employer (Antelope Valley) have to control what their carriers’ do?

This case reinforces the common proof method that turns to governing contracts: a common method used to determine the answer to the independent contractor vs. employee question. The Court has pointed out that at the certification stage, the form contract’s importance is not particularly in what it says, but in what degree of control it defines and whether it is uniform across the class.

Countless California workers are misclassified as independent contractors even though their employers retain control of their working conditions. If you are one of these California workers and you’d like to join with fellow workers to address the issue of misclassification claims, contact Blumenthal, Nordrehaug & Bhowmik. There’s precedence in the legal system that empowers you to raise your wage claim.

California Labor Law Update: Changes in Sexual Harassment Protection

New employment laws or amendments to existing laws are passed by the California legislature every year. The changes can directly impact the relationship between an employer and their employees as well as how they run their business. 2014 saw dozens of new labor laws go into effect.  

One important change that occurred in 2014 was a result of an amendment to Government Code 12940. It clarifies the definition of sexual harassment in the workplace. After a 2013 appellate decision, there was a question as to whether or not there needed to be sexual desire on the part of the perpetrator in order to establish a legitimate sexual harassment claim. Bill 292 addressed this issue.

The California legislature passed Senate Bill 292 in 2013 and we saw it go into effect on January 1, 2014. This amendment to the previous employment law defining sexual harassment in the workplace in California redefines the issue: sexual harassment is prohibited under California law without regard to the sexual desire of the perpetrator. It was reasoned that sexual harassment (like other forms of harassment) isn’t necessarily motivated by desire. In fact, harassment of all types is more often motivated by hostility. The passing of this bill addressed the confusion in the California courts regarding whether or not a sexual harassment claim can be established without a basis of desire. Senate Bill 292 clarifies what the California courts have been recognizing for years: that sexual motive or desire isn’t necessary in order to establish a sexual harassment claim and bring action against an employer. 

If you or someone you know has questions about what constitutes a sexual harassment claim or if you feel you work in a hostile work environment get in touch with the employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Ninth Circuit Clarifies with Recent Ruling: Delivery Drivers are Employees Not Independent Contractors

Plaintiffs in Ruiz v. Affinity Logistics Corporation performed delivery services in California for the defendant under contracts binding the drivers as independent contractors and governed by Georgia law. The putative class action asserted that under California law drivers should have been paid sick leave as well as other employment benefits, but because they were wrongfully classified, they were denied the benefits. Originally, the district court applied Georgia law and found in favor of the defendant due to the classification of the drivers as independent contractors. The drivers appealed.

The first appeal in 2012 resulted in the Court of Appeals disregarding the contract’s provision stating the employer/employee relationship would be handled according to Georgia law. Instead they applied California law to the disputes as they found Georgia law to be too favorable to the employer. The case was then remanded for application of California law. The district court again entered judgment in favor of the employer, and again, the plaintiffs appealed.

On June 16, 2014, the Ninth Circuit gave a different ruling. The ruling stated that despite the contract terms, delivery drivers were employees under California law and were not independent contractors. (This finding was in spite of the fact that all the drivers had independent contractor agreements, formed their own corporate entities, paid for their own vehicles, and hired their own help as needed. The ruling found that the drivers were wrongfully classified under California Law as independent contractors due to the employer’s right to heavily control their work regardless of the titles of the parties involved or how the employee/employer relationship was described. Some of the specific instances cited as “heavy control of work” included: tight control over driver routes and schedules, 100% adherence requirements to the detailed procedure manual, vacation policies (and other similar policies) indicative of employment, use of the drivers’ leased trucks by other drivers without additional compensation, required daily meetings, uniforms, inspections, monitoring of routes (real time), etc.

The case reminds us that merely stating that a relationship is that of an independent contractor is not enough when the relationship itself exhibits signs of an actual employee/employer relationship. It is prudent for companies to remember that the courts will not hesitate to rule that independent contractors should have been classified as employees if the actual working relationship defies what is agreed on paper.

For more information on differentiating between an independent contractor and an employee contact your Southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

President Obama set to Sign Order Banning Anti-Gay Workplace Discrimination

White House news indicates that President Barack Obama is going to sign an order banning anti-gay discrimination in the workplace. The president has directed his staff to draft an executive order. The order would place a ban on workplace discrimination against lesbian, gay, bisexual and/or transgender employers of any federal contractors. Many see this move as the clearest indication that the Obama administration is prepared to take action on LGBT rights in spite of Congress’s failure to do so.

It’s unclear whether Obama intends the leak of the “intention” to sign as a warning to lawmakers to pass more extensive workplace discrimination laws in the limited window available to them before he takes matters into his own hands or if it is the long overdue action he pledged to take during his 2008 campaign.

The planned executive order comes after years of what many view as inaction. The Obama administration has been calling for Congress to pass the Employment Non-Discrimination Act (which would make it illegal for employers throughout the entire nation to fire or discriminate or harass anyone in their employ due to sexual orientation or gender identity). The bill passed the Senate, but stalled in the House. Due to this stall the president has felt an increase in pressure to take action on his own. 

If the proposed executive order were to take effect, it would affect approximately 16 million workers. The executive order under discussion would build upon protections already in place that prohibit general discrimination in the workplace on the basis of race, color, religion, sex, or nationality. Millions of Americans in most states in the country head to work every morning unsure of their job security because of who they are or who they love. There are currently no federal laws providing adequate protection for LGBT workers fearing employment discrimination. 

For additional information on legal protection from harassment and discrimination in the workplace for LGBT contact the experts in California employment law at Blumenthal, Nordrehaug & Bhowmik. 

Female Employees Sue Papa Murphy’s for Secret Filming in Workplace Bathrooms

Four women are suing the Martinez franchise owner of the popular Papa Murphy’s Take ‘N’ Bake Pizza. The suit is based on their allegations that their former boss secretly videotaped them in the employee restroom while using the toilet and undressing. The women claim they suspected their boss, Jason Lassor, of secretly taping them in the workplace’s unisex bathroom for three months before they eventually discovered a hidden camera inside of a cardboard box placed on a shelf in the bathroom.

Lassor already pleaded guilty to one felony count of child pornography and a misdemeanor unlawful electronic video recording charge. One month after pleading guilty, Lassor was sentenced to 120 days in county jail. His time was served by electronic home detention.

One of the four women (who will go unnamed as sex assault victims) was under 18. The women’s representation indicated that the situation was a significant breach of trust and that they were completely devastated when they learned of the filming device. They will continue dealing with the after effects of learning that their privacy had been so irrevocably breached by their employer for some time.

While the women had suspicions that they were being filmed for months prior to finding proof, they feared reprisal and workplace retaliation if they were to complain about their suspicions. When the video camera was discovered in January of 2013, the woman who discovered it called one of the other women who was at home at the time. She came to the place of business, picked up the camera and delivered it to the Martinez police. Lassor was arrested later that same day.

The suit filed by the women against the company and the franchise owner claims negligent supervision, training and retention as well as invasion of privacy, sexual discrimination, harassment and other workplace violations of employment law.

If you have questions regarding your rights to address uncomfortable work situations (suspected or otherwise) while avoiding employer retaliation in the work place contact the California employment law experts at Blumenthal, Nordrehaug & Bhowmik.