LA Radio Personality Appeals in Wrongful Termination Suit

A popular former radio personality for Los Angeles’ Spanish-language radio station K-Love 107.5 claims that her former employer Univision Communications Inc. wrongfully terminated her from her position at the radio station. Sofia Soria brought high rations, but was fired for alleged tardiness. The truth of the situation was that Soria was battling a stomach tumor at the time in question and required a stomach surgery (or so Soria alleged).  Soria’s California Wrongful Termination appeal was heard in November 2016.

According to allegations Soria made in court documents, she was diagnosed with a stomach tumor in late 2010. She attended a year’s worth of doctor’s appointments that caused a number of absences from the K-Love radio program. Soria claims that she informed her employer of her need for surgery in late 2011. Soon after, Soria claims she was terminated from her job after fifteen successful years with K-Love. In response, she filed a wrongful termination lawsuit in January 2013 alleging that her program had consistently high ratings at the time she was fired, for which she was rewarded with pay raises and bonuses on a regular basis and for which she was commended in performance reviews. The court found in favor of Univision.

Soria appealed the lower court’s decision. On November 3rd, the California Appeals Court heard arguments supporting Soria’s argument that she was wrongfully terminated. Originally, Univision argued that Soria was never actually disabled and had never requested accommodations or medical leave for the issues she was alleging in the suit. Univision had also previously argued that the tumor ended up being non-cancerous and was, therefore, not a threat to Soria’s health. Therefore from Univision’s perspective, Soria missed a number of shifts without just cause and was terminated for her frequent tardiness for the job. Prior to Soria’s appeal, the Defendant was granted summary judgment.

On appeal, Soria’s attorneys pointed out that while the tumor was eventually shown to be benign, her doctors suggested that it remained a threat to Soria’s internal organs, thus presenting a threat to her health and requiring surgery. Also noted during her appeal was that medical appointments were necessary for biopsies, monitoring, etc. Univision felt it was Soria’s choice to schedule appointments during work hours, but the appellate judge wasn’t so sure. Could there have been something more they could have done to support their employee when she needed it? Soria’s representation also noted on appeal that while Univision claims they terminated her for tardiness and absences, there was no documentation or mention in past performance evaluations of the issue.

Also noted was that under the Family Rights Act the only requirement for accommodation is to verbally note that surgery is required. Soria’s potential disability discrimination claim that would have been eligible according to the Fair Employment and Housing Act was negated by her termination.

If you have questions about employment law or the appellate process, please contact one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Flight Attendants Win Class Certification in Pay Suit Against Virgin America

In November 2016, about 1,400 Virgin America flight attendants won class certification from a California federal judge. Their suit includes allegations that Virgin America airline shorted flight attendants on wages for time spent before and after flights, which is a violation of California labor law.

U.S. District Judge Jon S. Tigar issued the order certifying a class of approximately 1,400 California-based flight attendants employed by the airline since March of 2011. Virgin America airline was against class certification, stating that California wage law did not apply extraterritorially. This argument was, at least in part, negated by the judge’s creation of a subclass in the certification for California residents who have temporarily left the state in the course of their job duties. Judge Tigar stated clearly that while the law is not settled regarding the applicability of California wage and hour laws to work of California residents outside of the state, but that members can recover unpaid wages for time worked within that state. As every member of the California resident subclass is also a member of the proposed class, the court found certification appropriate. If, later in the case, the court determines that members of the California resident subclass are only eligible to recover payment on hours when their primary job location was California, these members can be easily identified through Virgin’s employment documentation.

The argument presented by the flight attendants in the case is that Virgin does not provide payment for the time before and after flights, during which they are required to write up incident reports, complete training, undergo required drug tests, etc. It was also alleged the Virgin does not provide flight attendants with employment law mandated meal and rest breaks, overtime pay, minimum wages and accurate wage statements. While flight attendants at many of the major airlines are unionized, the Virgin America workers are not. This means they do not have any union protection. They have to rely on the protection of the law.

Currently, Virgin America provides payment to flight attendants based on a “block time” pay schedule based on the time between leaving and arriving at the gate. Work performed outside of this specific time is not compensated. These activities include: pre-flight briefings, passenger boarding and deplaning, etc. Yet the company does provide standard allocation of 30 minutes for drug screening time (regardless of the actual time spent on the test) and four hours of pay for reserve shifts when flight attendants are not assigned a flight (but these airport reserve shifts can last up to six hours).

If you have questions about class certification or what constitutes a violation of employment law, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Tellers’ Seating Suit Ending with B of A Paying $15M

In recent California news, Bank of America has decided to settle a class action over suitable seating for bank tellers for a reported $15 million. The settlement includes a deal requiring the bank to offer proper seats for tellers at their various California bank branches.

The settlement was approved by Alameda Superior Court Judge Winifred Y. Smith on October 28th, 2016. The Private Attorneys General Act claim covered all nonexempt Bank of America tellers in the state of California that were employed by the financial institution between March 2, 2010 and the date of the settlement approval. 75% of civil penalties remaining after deducting attorneys’ fees and costs will go to the Labor and Workforce Development Agency. The other 25% will go to Bank of America’s California tellers according to designated terms. The deal requires that Bank of America ensure all California bank branches have appropriate seat for tellers to use at their workstations within 60 days of the judgment entry.

Attorneys representing the bank in a federal suit moved to dismiss that case with prejudice in light of the deal that was reached, noting that the details of the state case’s settlement included the time period and tellers from the earlier federal action.

The action was up on appeal before the Ninth Circuit twice, but in both instances, the lower court’s dismissal of the action was dismissed. In February 2013, the appeals court stated the U.S. District Judge Real wrongly found that employees must request seats before they are provided and remanded for further proceedings. In May 2013, the suit was dismissed again on the grounds of preemption by the federal National Banking Act and the plaintiffs’ failure to properly exhaust the available administrative solutions. This dismissal was also reversed by the Ninth Circuit in October 2015. They found there was no indication that the applicable California wage order would pose a significant disturbance to the National Banking Act’s functions or purposes. It was also found that the plaintiffs did properly exhaust available administrative remedies when they offered written notice of claims to both the California Labor and Workforce Development Agency and the bank.

The tellers, of course, seek to make the order precedential, as the first ruling affirmatively stating the content that satisfies California Labor Code requirements for notification.

The original class action was filed in April 2011 by former Bank of America tellers, Green and Giddings. They accused the bank of making them stand even though it was in violation of the wage order and there was plenty of room in the workspace for appropriate seating. Similar suits have been brought against large retailers throughout California since 2009.

If you have questions about this or other California class actions, please get in touch with the experienced class action and employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

California Guard Veterans Told to Repay Enlistment Bonuses

Close to a decade ago the Pentagon used a classic maneuver to entice soldiers to reenlist: hefty bonuses. Now, officials are demanding that thousands of those vets pay the money back. One California veteran affected by the situation is Christopher Van Meter. He was awarded the Purple Heart after being thrown from an armored vehicle during a deployment to Iraq. When the moment came for him to retire back in 2007 after serving for 15 years in the Army, he was encouraged to reenlist. According to Van Meter, he was encouraged with a reenlistment bonus of about $15,000. About a decade later, officials realized that Van Mater and many others like him were not technically eligible to receive the bonuses they were given to reenlist.

Bonus Eligibility: In recent news, bonus eligibility has been discussed – particularly the fact that only soldiers holding certain assignments (i.e. intelligence, noncommissioned officer posts, civil affairs, etc.) were eligible for the bonuses. Investigation into the situation uncovered both fraud and mismanagement by California Guard officials who were desperately offering the bonuses in order to meet their enlistment target numbers.

In 2011, the California Guard incentive manager, retired Master Sgt. Toni Jaffe, pleaded guilty to filing false claims of $15.2 million. During the course of her admission, she stated that from Fall 2007 through Fall 2009, she routinely submitted fictitious claims on behalf of California National Guard members to pay bonuses to members she knew were not eligible, and to pay off officer’s loans she knew were ineligible for loan repayment. She was sentenced to 30 months in federal prison. Three other officers involved pleaded guilty, were required to pay restitution and put on probation. As a result, thousands of soldiers are now being asked to pay a hefty price for the fraudulent/fictional claims. Millions in enlistment bonuses are basically being recalled.

Van Meter, mentioned above, was shocked to receive a letter stating he owed $46,000: a combination of $15,000 enlistment bonus, a student loan repayment amount and an officer bonus…plus a processing fee. After his retirement in 2013, he had three years to pay back the debt. That meant monthly payments of more than $1,300 –leaving Van Meter struggling to provide the basics for his family. They were eventually forced to refinance their mortgage in order to pay off the staggering debt that they didn’t even know they had accumulated. The Van Meter family is one of many in similar situations. Some claim that approximately 9,700 current and retired soldiers have been told to repay some or all of the bonuses they received years ago, but the military auditor handling the process, Col. Michael Piazzoni, stated that the number was lower.

According to Piazzoni, 11,000 soldiers were included in the audit. 1,100 were discovered as receiving unauthorized distributions that need to be repaid. 5,400 soldiers were discovered to have missing paperwork or proper documentation of eligibility and have to pay back the money they received. Approximately 4,000 soldiers were found to be eligible for the payments as they were distributed. The process is not yet complete, but auditors have already confirmed 2,300 instances of unauthorized bonus payments to about 2,000 soldiers. The total comes to $22 million in unauthorized bonuses. That number includes 1,100 soldiers who received unauthorized money and the soldiers from the 5,400 who were unable to show proof of eligibility. The remaining recipients will need to produce the proper documentation proving their eligibility for the funds or they could be held liable to repay the amounts back to the Defense Department.

The audit and recoupment is being handled through a federal program jointly administered by the National Guard Bureau and the Department of the Army. The California National Guard has stated that it does not have the authority to waive the debts and that their hands are tied in this situation. As of now, there is no law passed by Congress to waive the debts so they stand, leaving the California National Guard in a difficult position as there isn’t much they can do to advocate for their soldiers. Affected soldiers are able to petition to have a debt waived. The military does hole the authority to waive an individual repayment, but only on a one-by-one basis. There is no authority held by the military to issue a blanket waiver to cover all soldiers affected by this situation.

Soldiers are being encouraged to take advantage of the appeals process while the Pentagon, the Army, the National Guard Bureau, the California Army National Guard and other relevant authorities and institutions work together to work towards a resolution. Soldiers affected who have petitioned for debt forgiveness have been denied, Van Mater multiple times. Van Meter is just one California vet who accepted an incentive payment in good faith. Many of them paid a heavy price for their military service; many even experienced severe injuries after reenlisting. And now, years later they are offered processing fees, interest charges, wage garnishment, tax liens and fines. It’s possible that Congress will take action to resolve the issue when members return from election recess.

If you have questions or concerns regarding enlistment bonuses, or proving your eligibility for bonuses please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Former Kohl’s Employee Not to Be Discriminated Against for Medical Marijuana Use

A former Kohl’s employee, Justin Shepherd, was fired for his use of medical marijuana after he was injured on the job and a drug test was conducted. A federal court judge in California determined that this employee may move forward with his lawsuit against Kohl’s, his former employer. Shepherd worked at Kohl’s Department Store for over five years before he was diagnosed with acute and chronic anxiety and given a recommendation for medical marijuana use. He did not inform his employer of his use of medical marijuana, but the company did update their policies to include rhetoric protecting California employees from medical marijuana use discrimination.

When Shepherd’s job injury led to a drug test that revealed his use of marijuana, he was terminated. When he sued for the alleged breach of contract, covenant of good faith, fair dealing and defamation, the court denied Kohl’s motion for summary judgment, but placed a few claims under the state’s Fair Employment and Housing Act. This is a noteworthy case as there is still heavy discussion about the contradictions between federal law that still identifies marijuana as an illegal substance and state laws that permit marijuana use for medical and sometimes recreational use (depending on the state).

Shepherd worked as a material handler at Kohl’s in June 2006. When he was hired, he signed an agreement including a clause stating he was an at-will employee. By 2011 Shepherd had been promoted. He had also been diagnosed with acute, chronic anxiety with his doctor recommending medical marijuana use. Shepherd did not disclose his condition or treatment to Kohl’s. In 2012, the company policies were updated to include exceptions to its drug testing and substance abuse policies protecting California (and other applicable states) employees from discrimination for medical marijuana use in regards to hiring, firing, and other employment matters. Shepherd claims he took note of these policy changes and was depending on them when he decided to continue his anxiety treatment and stay at Kohl’s rather than look for new employment elsewhere.

In 2014, Shepherd was injured on the job. He went to a healthcare provider contracted with the company where a drug test revealed trace amounts of marijuana metabolites. Shepherd then showed his manager his medical marijuana recommendation and advised them that he only used it when off duty, and that the metabolites can stay in the system for quite a while. Shepherd was terminated for his “drug use.” He was told that he should have chosen to address his anxiety issue with a different medication. He filed suit quickly thereafter.

If you have questions about medical marijuana policies in your workplace or about what constitutes wrongful termination, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

The Ruling in Burns’ Wrongful Termination Suit vs. SDSU

In recent news, Beth Burns was victorious in her wrongful termination lawsuit against SDSU. The former San Diego State women’s basketball coach was awarded a $3.35 million judgment in San Diego Superior Court per jury decision. The case was founded on whistleblower retaliation accusations that occurred after Burns complained about potential Title IX violations at the college.  

The jury trial went on for a month. The jury consisted of five women and seven men who voted 9-3 in Burns’ favor after deliberating for two days. The 9-3 vote represents the minimum required by California civil court.

Burns is known as SDSU’s “winningest” women’s basketball coach. The wrongful termination lawsuit was drawn out into a three-year legal battle. She did not want to go through the process, but felt she had not other choice as she was being accused of physically hitting someone, others were saying she was not a good person, and she couldn’t accept that. She felt the legal battle was necessary in order to clear her name from the false accusations. 

In April of 2013 Burns was fired from her position as women’s basketball coach at the university. This was one month after her team won 27 games (breaking a school record) and only nine month after Burns’ contract extension through 2016-17 was granted paying her $220,000 per year plus bonuses and benefits. After her termination, she was out of work for a year before taking a job as an assistant coach at USC with a pay cut to $150,000 per year.

SDSU claimed that the reason for Burns’ termination was a “history” of mistreating her subordinates with a video from a February 2013 home game showing Burns elbowing assistant coach Adam Barrett who was seated to her right on the bench. Burns described the elbow as “incidental contact on a crowded bench.”  

The $3.35 million judgment was based on an award of $468,500 for past economic losses, $887,750 for future economic losses and $2 million for past and future non-economic losses and damages. 

If you have questions about wrongful termination, whistleblower retaliation or a hostile work environment, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Former Bank Employee Sues for Wrongful Termination Seeking $2.6B

A former Wells Fargo bank employee is suing the financial institution for $2.6 billion due to allegations of wrongful termination. Just days after lawmakers encouraged the Department of Labor to look into Well Fargo’s actions against their employees when their workers made allegations of firing and other mistreatment for failure to meet strict sales quotas. These are the same strict sales quotas that had already resulted in the opening and closing of over two million unauthorized consumer accounts.

The wild story is now nearing an end with a group of former Wells Fargo employees banding together to file a class action lawsuit in California seeking $2.6 billion in damages. Damages being sought will be on behalf of all Wells Fargo employees who endured penalties for not meeting outlandish sales quotas over the past 10 years. Allegations being made against the banking giant include: unlawful business practices, failure to pay wages, failure to pay overtime, wrongful termination and unlawful penalties against employees.

According to the two original plaintiffs (both former Wells Fargo employees), the Wells Fargo managers required employees to meet a quota of 10 accounts per day and progress reports submitted several times throughout each day. Any workers who fell short of these requirements were reprimanded for failing to meet expectations. According to the suit, the employees were unable to meet the outlandish requirements without resorting to fraud. It continues to specify that the biggest victims of Wells Fargo’s illegal activity are the employees who were fired because they did not meet the cross sell quotas by engaging in the fraudulent scam that increased profits for CEOs. Plaintiffs insist that there are thousands of loyal employees who were either fired or demoted because they did NOT resort to illegal tactics for purposes of meeting impossible cross-selling quotas.

The plaintiffs allege that employees who attempted to meet the unrealistic goals without opening unauthorized accounts engaging in other, similarly fraudulent behavior, lost wages and benefits, as well as suffering humiliation, anxiety and embarrassment.

If you have questions or concerns regarding wrongful termination, workplace retaliation, or seeking class certification, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.