Is Employer Liable for Violation if Employee on Disability Leave is Fired by Mistake?

During his time as a pharmaceutical sales representative, John Glynn’s doctor issued a medical certification designating his work status as “no work” because a severe eye condition, myopic macular degeneration, meant he was not able to drive safely. Glynn commenced a medical leave of absence. 

Does Your Workplace Have a Reasonable Accommodation Policy for Disability?

Glynn’s employer had a reasonable accommodation policy in place that listed reassignment to a vacant position as a potential accommodation when necessary to accommodate a disability. In spite of this written policy, Glynn’s application for another job at the company that did not require driving was denied. About six months into Glynn’s medical leave of absence, Glynn was terminated after an employee the company later described as a “temp” in the benefits department, decided Glynn was no longer eligible to continue with an “inactive status.” 

Was Glynn’s Termination While on Disability Leave an Honest Mistake?

The employer acknowledged this as a mistake about nine months later after Glynn filed suit. After conceding the error, the company offered to reinstate Glynn unconditionally with full back pay, but Glynn rejected their offer. Glynn stated that he refused the offer for reinstatement because when making the offer, the company did not specify a position. He did not believe they made the offer in good faith.

Glynn Filed Suit Claiming Numerous Employment Law Violations:

Glynn filed suit several months after being terminated while on disability leave, citing several employment law violations: disability discrimination, retaliation, failure to prevent harassment and discrimination, violating the whistleblower statute, wrongful termination, and intentional infliction of emotional distress. The trial court granted summary adjudication against Glynn on his claims. The Court of Appeals issued a writ of mandate directing the trial court to vacate the order dismissing the claims. The Appeals Court held that even if the employer made an honest mistake, a lack of “animus” does not eliminate liability for a disability discrimination claim. The Court also held that Glynn demonstrated he engaged in protected activity through the four emails included in the documentation in which he complained about the lack of reasonable accommodation for his disability. 

If you need to discuss how to file a disability discrimination 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.

Wayfair Employee Sues After Alleged Co-Worker Harassment

Emily Forsythe, a 33-year-old associate director of industrial engineering at Wayfair, filed a harassment lawsuit on January 3, 2020. Forsythe claims that during her time working for the Boston-based online furniture retailer, she was regularly harassed by a male colleague, she supervised on the job. The harassment continued for several months.

Forsythe Claims Wayfair Ignored Harassment Complaints:

Wayfair employs a significant portion of the area’s 20 and 30-somethings. Despite its status as a major employer of such a substantial portion of the population, they allegedly failed to respond appropriately to the harassment problem. Forsythe claims that they completely overlooked the harassment complaints and then proceeded to retaliate against her for filing a harassment complaint.

Months of Harassment Lead to a Lawsuit Alleging Employment Law Violations:

Emily Forsythe responded to the company’s non-response and retaliation by filing a lawsuit on January 3, 2020. According to the lawsuit, Forsythe was harassed over several months by a coworker she supervised on the job as Wayfair’s Associate Director of Industrial Engineering in 2019. In the documents, Forsythe described the situation claiming that the man doggedly pursued a relationship with her, making repeated (and unwanted) physical contact. When Forsythe rejected his advances, he allegedly started sending combative messages to both her and other employees at Wayfair. 

One Example of the Harassment Cited in Forsythe’s Lawsuit:

While at the Wayfair facility in Perris, California, the plaintiff claims that the male coworker took it upon himself with no expressed or implied invitation from Forsythe to stare at her chest and then run his hand down from her cleavage across her breast to her waist. When she moved out of his reach, he laughed and walked away. Later that day, again, without an invitation from the plaintiff, he started to talk to Forsythe about internet dating applications, aired speculations about the pair of them dating while noting their consistent conflicts, and invited Forsythe to spend the day together then go to dinner. She refused. He repeated the same invitation as both were leaving the workplace, and Forsythe refused again. He later told 3rd parties that he and Forsythe were dating.

Many other examples were included in the lawsuit, similar to the one detailed above.

Harassment Allegedly Followed by Retaliation in the Workplace:

In Forsythe’s lawsuit, she also alleges that another Wayfair employee later discriminated against her in retaliation for complaining about the harassment. Forsythe claims she was excluded from meetings and email communications. Forsythe claims they received Forsythe’s harassment claims but concluded they were unfounded as other employees denied her allegations. When Forsythe announced her intention to file a discrimination complaint, Wayfair fired her. She was terminated on September 22, 2019. In a statement responding to the lawsuit, Wayfair denies the allegations. They insist they take all reports of misconduct seriously and that they conducted a thorough investigation into the matter in response to Forsythe’s complaints, but did not find any merit to the allegations.

Forsythe claims she suffered emotional distress due to Wayfair’s failure to handle her complaints appropriately and is seeking back pay, court fees, and damages. Her legal counsel found Wayfair’s handling of the matter insensitive, inadequate, and unusual, claiming that they relied on denials issued by the alleged harasser and retaliator to come to the conclusions that there was no misconduct.

If you have questions about how to identify harassment in the workplace or if you need to file a California harassment 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.

Former Employees Sue Bravo Stars Lisa Vanderpump and Ken Todd for Wage & Hour Violations

Lisa Vanderpump and Ken Todd’s restaurant empire is the foundation for a drama-filled Bravo series. Stars on the show, Vanderpump Rules, tend to be more than happy to participate in spite of the drama the show is known for creating. But recently, several former employees filed a lawsuit alleging that they were not provided proper wages.  

Bravo Stars Sued for Various Employment Law Violations:

Former employees claim that Bravo stars Lisa Vanderpump and Ken Todd failed to pay wages or overtime wages for four years (and maybe more). In December 2019, Adam Pierce Antoine, and several other former employees, filed a class-action lawsuit. The defendants, Lisa Vanderpump and Ken Todd own several California restaurants, including SUR, Tom Tom, Pump, and Villa Blanca. Allegedly, staffers at the Bravo stars’ restaurants were not compensated fairly when they worked overtime - as a standard practice. The plaintiffs also allege that the owner, Lisa Vanderpump, regularly dedicated time and energy to altering employee time records to manipulate the number of hours to minimize the number of hours rather than providing for all the hours worked. Not only does this represent wage and hour violations and overtime pay violations, but it also violates federal requirements to provide employees with an accurate wage statement.

Bravo Stars Allegedly Fail to Pay Employees for Hours Worked:

Allegedly, Lisa Vanderpump did not provide a minimum wage to her employees for their hours due to numerous standard “practices” that businesses can be tempted to institute as a means of minimizing labor costs.

• Off the Clock Work: Employees were not paid for hours worked “off the clock.”

• Unpaid Training: Employees were not paid for mandatory training.

• Unpaid, but On Call: Employees were not paid for time spent on call.

• No Meal or Rest Breaks: Employees were not provided with meal and rest breaks required by California labor law, and were not otherwise compensated. (According to labor law, Employees who are not given meal breaks or rest breaks should be compensated and allegedly, this never happened for employees at the many restaurants owned by the well-known Bravo stars).

In addition to wage and hour and overtime violations, Vanderpumpand Todd allegedly did not provide terminated employees with accurate wage statements reflecting the time they worked. Plaintiffs filed suit citing they suffered damages and Antione seeks more than $25,000. 

In response to the lawsuit, the restaurant describes the plaintiff as disgruntled workers who were written up and given plenty of warnings by their supervising staff before they were let go. The owners also insist that they take action to prevent abuse toward their staff or their patrons.

If you need to talk to someone about violations in the workplace or if you need to file an overtime lawsuit, 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 the Promo Industry See Changes Due to California’s New Gig Worker Law?

California’s new “gig worker” law, Assembly Bill 5, requires California companies to classify independent contractors as employees if the work they perform is a regular part of the company’s business (effective January 1, 2020). The law was designed to offer independent contractors with a more stable work environment with access to workers’ compensation, minimum wage and overtime protections, unemployment and health insurance, paid sick days, etc.

Backlash from the “Gig Worker” Law, Assembly Bill 5:

The law was originally designed in response to perceived problems with how drivers were classified by Uber and Lyft, but is not limited to these companies or even the gig economy industry as a whole. While the law was authored as a solution to an evident problem, there is backlash from both workers and employers in different industries. Postmates and Uber fought back against AB5 by filing a lawsuit alleging that the new legislation violated the constitutional rights of individuals and exhibits unfair discrimination against tech platforms and workers using them to make a living.

Some Jobs and Business Types Are Exempt from California’s “Gig Worker” Law:

There are various professions and types of business that are exempt from Assembly Bill 5. Exempted professionals and businesses number more than 50, but include doctors, lawyers, insurance agents, dentists, hair stylists, accountants, real estate agents and other creative professionals.

In addition to the lawsuit filed by Postmates and Uber, lawsuits were filed on behalf of freelance writers and freelance photographers in federal court in Los Angeles. The suits representing writers and photographers allege that AB5 restricts free speech and the media. Independent truck drivers based out of California were the first to succeed in challenging AB5 - they received a temporary injunction.

Will the Promo Industry Be Affected by Assembly Bill AB5? 

It is not yet clear whether or not Assembly Bill 5 will affect the promotional products industry; it is not specified in the legislation. According to the legislation, some marketing professionals and direct sales salespeople are exempt depending on how they are compensated for their work. Many California businesses are insisting that the law will damage their business. The law is currently limiting sales reps in their ability to secure national accounts with headquarters in California; accounts are on hold as they check with their legal departments and watch for news updates to determine how the new freelancer law will affect their standard practice.                                                

If you need to talk to someone about misclassification or if you need to file a misclassification lawsuit, 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.

Uber and Postmates Attempt to Block California’s New Freelancer Law

Postmates, popular app-driven delivery start-up, and Uber, the famous app-driven ride-hailing company, seek an injunction against California’s new freelancer law, effective January 1, 2020. The two companies filed a lawsuit in California federal court hoping to prevent the landmark freelancer law set to go into effect for 2020.

Why Did Uber and Postmates Attempt to Block California’s New Freelancer Law?

The attempt to block Assembly Bill 5 accentuates the fact that the stakes are high for gig companies in California. The new law threatens gig economy business because it requires companies to classify workers as employees rather than independent contractors when certain conditions exist.

When Does Assembly Bill 5 Require Employers to Classify Workers as Employees?

The new “freelancer law” poses a significant threat to California businesses that operate using freelancers rather than employees. Companies are required to classify workers as employees under the following conditions:

• If a company controls how the worker performs their work or

• if the work performed by a worker is a regular part of the company’s business.

How Does the New Law Affect California Businesses?

Experts expect the new law to cause drastic changes at Uber, Postmates, and other similarly structured businesses as they will need to classify their California drivers as employees. This change would add an estimated 20-30% additional labor costs (or more) for Uber and its primary competitor, Lyft. This type of restructuring could end up costing them hundreds of millions of dollars through increased expenses to comply with California’s new freelancer law.

When California workers are classified as employees by their employer, they are entitled to protections under FLSA and California labor law. The protections provided by labor law protect against wage and hour violations, overtime violations, etc. Classification as an employee also means workers are eligible for unemployment insurance and workers’ compensation with the employer required to pay half of the employee’s Medicare and Social Security payroll taxes.

If you have questions about California labor law violations or how California’s new freelancer law may change your workplace, 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.

Burgers & Beers Sex Discrimination Lawsuit Settled for $150,000

A Southern California food chain known as Burgers & Beer agreed to pay $150,000 to settle a sex discrimination lawsuit. The company is based out of El Centro, California, and allegedly denied server positions to men.  

Disqualifying Male Applicants and Employees from Server Positions:

According to the lawsuit filed against Burgers & Beer, the So Cal food chain denied all male applicants and current employees access to server positions. The men were refused the job based solely on their sex. The lawsuit also claims that the denial of server positions to any men interested in the job was an ongoing standard practice at the food chain since 2015. The standard practice resulted in the current, almost all-female serving crew.

The denial of a position based solely on the sex of the applicant violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex for hiring or promotions. The EEOC attempted to reach a pre-litigation settlement with the Defendant through its conciliation process. When this wasn’t possible, they filed suit in U.S. District Court for the Southern District of California.

What Terms Are Included in the Settlement?

The two-year consent decree settling the lawsuit includes:

• A monetary settlement

• Injunctive relief to prevent future workplace sex discrimination

• Revision of the company’s job descriptions for all positions

• Creation of a plan to purposefully increase the number of male applicants for server positions

• A hiring and retention rate goal for men in server positions

• A review and revision of company discrimination policies

• Providing discrimination training to all employees

• Required record-keeping to demonstrate compliance with all elements of the settlement agreement

The two-year consent decree settling the suit remains under the court’s jurisdiction for the full term of the order.

If you are experiencing discrimination in the workplace or if you need to file a discrimination lawsuit, we can help. Get in contact 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. 

Former Juul Employee Sues San Fran Vaping Co. Alleging Harassment and Wrongful Termination

On December 20, 2019, former Juul employee Kai Yin “Carrie” Chuang filed a complaint with San Francisco Superior Court, alleging she was the victim of sexual harassment. Chuang also claims the San Francisco vaping company wrongfully terminated her employment after reporting harassment incidents to her superiors. 

Chuang worked at Juul, as well as its predecessor company Pax Labs. She was employed as a supply chain manager starting in 2017 through 2018. Chuang claims that three different male Juul employees made unwanted sexual advances to her on multiple occasions. The incidents involved suggestive comments and inappropriate physical contact. According to the lawsuit, Chuang reported the incidents to her supervisors at Juul. Still, the managers discouraged her from pressing the issue and did not conduct a thorough investigation of her claims.

Alleged Incidents of Workplace Harassment:

While on a business trip in 2017, a male employee requested the Chuang come to his room and “sleep with him.” When Chuang refused, the male co-worker touched her inappropriately and kissed her against her will.

Juul executives allegedly spread false rumors that Chuang accepted bribes from a vendor, indulged in a romantic relationship with vendor representative, and downloaded company files and shared them with an ex-employee in violation of company policy. Chuang claims the executives spread these rumors in retaliation for reporting the abusive incidents.

Was Chuang Wrongfully Terminated?

In December 2018, Chuang was terminated from her position with Juul. In February, Chuang filed a complaint. She received a right-to-sue notice the same day. Chuang’s lawsuit seeks back pay, lost fringe benefits, and additional monetary relief. A specific amount is not specified in the lawsuit.

How Did Juul Respond to the Harassment, Retaliation, and Wrongful Termination Allegations?

Juul claims that Chuang did not raise allegations until months after her separation from the company. They also claim that an internal investigation was completed in response to her complaints. Juul insists Chuang’s claims have no merit and that they are dedicated to creating and sustaining a safe, comfortable workplace for all employees that is free from all forms of harassment.

If you need to discuss harassment or workplace retaliation, 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.