Supreme Court of California Agrees to Review Appellate Decision on Meal and Rest Period Case

The Supreme Court of California will review the California Court of Appeal's decision in the meal and rest period premium calculation case, Ferra v. Loews Hollywood Hotel, LLC. The Supreme Court will consider the term "regular rate of compensation" in Labor Code section 226.7.

In Labor Code 226.7, the term "regular rate of compensation" is used when requiring employers to provide employees with payment when required meal periods and rest breaks are not provided. The Supreme Court of California will consider the question of whether or not the "regular rate of compensation" in Labor Code 226.7 should be interpreted the same and require the same calculations as the phrase "regular rate of pay" in Labor Code Section 510(a), which references overtime calculation requirements.

What is California Labor Code 226.7?

In California Labor Code Section 226.7 employers that fail to comply with employment law by providing employees with required meal, and rest periods are required to pay the employee an additional hour of payment. According to the section referenced, the payment must be "at the employee's regular rate of compensation for each workday" that the employer does not provide a meal or rest or recovery period.

What is California Labor Code 510?

In California, Labor Code Section 510, employers are required to pay employees overtime at either one and one-half or twice the employee's "regular rate of pay" if the employee works more than full-time hours (as determined by law).

Defining Section 510's "Regular Rate of Pay:"

Previously, Section 510's "regular rate of pay" was clarified by the Supreme Court of California, determining that calculations should include additional compensation outside of the employee's straight hourly rate. Additional compensation could consist of anything from commissions to split-shift differentials to nondiscretionary bonuses, etc. There is no similar California case law that provides clarification for calculating Section 226.7's "regular rate of compensation." The question forms the basis of deliberations for the court considering Ferra.

The plaintiff in the case is an hourly employee of Loews Hollywood Hotel, LLC, that brought a putative class action against the hotel giant, alleging that the company inaccurately calculated meal and rest period premiums in violation of Labor Code Section 226.7. The plaintiff argued that Loews should have calculated the regular rate of compensation for payment due to missed meal and rest periods in the same manner used to calculate the regular rate of pay used to determine payment for overtime hours. The Court of Appeal came back with an employer-friendly ruling, disagreeing with the argument presented by the plaintiff in the case.

The plaintiff appealed to the Supreme Court of California, asking that Labor Code Section 226.7's terminology receive clarification.

If you have questions about California labor law violations or how California responds to employment law violations, 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.

$175k Settlement in Carmel Restaurant Sexual Harassment Suit

To resolve a federal sexual harassment lawsuit filed on behalf of both male and female workers at California’s Carmel restaurants, owner/operator JCFB, Inc. agreed to pay a settlement of $175,000. The settlement agreement and amount was announced January 9, 2020. 

Sexual Harassment Suit Alleges Multiple Incidents:

According to the harassment lawsuit, one the the male line cooks working at Porta Bella Restaurant was repeatedly “grabbed” inappropriately; with his “private parts” being grabbed on numerous occasions by the kitchen’s manager, the chef and the cook. When the line cook reported the inappropriate behavior to the owners of the restaurant, they dismissed it as “only play.” After the dismissed report of the inappropriate behavior, the line cook claims that the chef became irate and confronted him, yelling and hitting him and finally forcing him to quit his job at the restaurant. The lawsuit alleges that the restaurant did not adequately investigate the incident or appropriately discipline the harassers.

Multiple Employees Came Forward with Harassment Allegations:

A female dishwasher working at Mediterranean Restaurant claims she endured sexual comments daily and regular unwanted and inappropriate physical touching by the same kitchen manager that harassed and retaliated against the Porta Bella Restaurant’s line cook. She informed her manager at Mediterranean Restaurant, and while it was a different manager than the one who handled the line cook’s complaint at the Porta Bella, the response was similar. The sexual comments and inappropriate behavior continued unchecked.

Workplace Harassment Violates Employment Law:

Both situations noted above are alleged violations of Title VII of the Civil Rights Act of 1964 prohibiting sexual harassment in the workplace. The harassment lawsuit was filed in U.S. District Court for the Northern California District. Before filing the lawsuit the parties involved did attempt to reach a pre-litigation settlement through a voluntary conciliation process.

Defendant Settles the Harassment Lawsuit for $175K:

The $175,000 settlement is part of a three-year consent decree ordering JCFB to pay the two former workers and provide anti-harassment training to their employees working at either Carmel Restaurant location. The JCFB is also required to work with an external consultant to monitor any future hostile workplace complaints. Doing so will hopefully assist the company as they implement effective HR practices to ensure proper training and appropriate investigating will occur as well as necessary disciplinary measures for those in violation of higher workplace standards. The changes will be made in hopes that incidents of harassment will be curbed at restaurant locations.

It doesn’t matter if the harassment is verbal or physical or if the victim is male or female, employers have to take incidents of workplace harassment very seriously and dedicate themselves to ensuring their service industry workers are protected from hostile work environments. 

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.

Tesla Faces a Racial Discrimination Lawsuit at the California Factory

Tesla Inc.’s effort to dismiss claims made by two former employees at their California factory failed. The federal judge rejected the electric car maker’s request to dismiss, which cleared the way to a potential trial.

Who Are the Plaintiffs Filing the Discrimination Suit?

Tesla’s California electric car factory employs over 10,000 people. Two of the factory’s former employees, Owen Diaz and his son Demetric Di-az, claim the workplace was rampant with racial hostility. U.S. District Judge William Orrick of San Francisco found open questions over whether the plaintiffs faced harassment that was specifically severe and pervasive. The two plaintiffs allege that the harassment took place throughout both 2015 and 2016. Owen Diaz claims he worked at the factory as an elevator operator for 11 months. Demetric Di-az claims he worked at the factory as a production associate for two months.

Diaz and Di-az, black employees at the factory, claim they were forced to listen to racial epithets regularly, subjected to racist cartoons, and that factory supervisors at best did little to stop the workplace harassment, and at worst, engaged in the harassment alongside the plaintiffs’ co-workers. They may pursue claims that the company did not make a reasonable attempt to stop the racial harassment and seek punitive damages. In order to seek punitive damages, the plaintiffs will need to show that the company was aware of the harassment, even if higher management did not engage in the actual hostile treatment.

The case is scheduled for trial May 11, 2020.

The Defendant: Tesla Electric Car Manufacturer

Tesla is a Palo Alto, California based company. While the electric car manufacturer has faced numerous racial harassment lawsuits, they are not the only car company to have similar legal issues in recent years. Ford faced a similar problem in 2017. The company agreed to a $10.1 million settlement to resolve similar problems with alleged racist behavior at two different Chicago factories. Tesla insists that they did not hesitate in addressing racial abuse at their Fremont factory, but that there is no evidence in this case of fraud, malice or oppression.

Other Details in the Tesla Racial Discrimination Case:

The plaintiffs, Diaz and Di-az, may also pursue claims against the staffing agency that assigned him to the factory, as well as a liaison between that agency and the electric car manufacturer, Tesla. The plaintiffs will likely seek millions of dollars in damages.

If you need to discuss harassment or workplace discrimination, 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.

$300,000 Discrimination Lawsuit Filed Over Marriot’s ‘No Party Policy’

Marriot is facing a $300,000 lawsuit. A California woman filed the suit claiming she was singled out during check-in because of her race and required to sign a "no party policy' the Marriott desk clerk insisted was standard.

What Makes a Business Practice Standard?

While the desk clerk claimed that requiring guests checking in to sign a 'no party policy' was standard, one particular guest who was required to sign it insists she was singled out due to her race. Felicia Gonzales, a 51-year old Californian black woman, was attempting to check in to the Residence Inn by Marriott Portland Downtown/Convention Center when asked to sign the 'no party policy." The desk clerk said that all guests were required to sign the same policy. Gonzales accepted that the 'no party policy' was standard practice at the hotel until she witnessed white guests checking in without being asked to sign the 'no party policy.' For the practice to be "standard," it would need to be required of all guests, not just certain guests.

What Is a 'No Party' Policy?

' The 'no party policy' was allegedly two pages long and included a variety of potentially discriminatory information including:

• Noise limits

• Instruction not to "insinuate distrust" in other guests

• Clarification that hotels do not want to have parties and that their hotel did not want that sort of business

• Notification that guests were responsible for any missing items from suites

• Notification that guests were responsible for any damage "invited or uninvited people" cause to the outside hotel property

Why Was Gonzales Asked to Sign the 'No Party' Policy?

Gonzales was a Marriott rewards member and had not had any problems in the past. She had never had a noise complaint at the hotel or any Marriott hotel. Gonzales signed the policy so she could check into her room; the desk clerk would not check her in for her five-night stay unless she signed. But being required to sign a 'no party' policy did not feel right, so she went back to the check-in desk later and observed numerous white guests checking in for their stay. There was no mention of the 'no party policy' to any of the white guests Gonzales saw checking in to the Residence Inn.

The $300K Discrimination Lawsuit:

Gonzales, the plaintiff in the suit, seeks $300,000. She claims the situation was frustrating, embarrassing, and humiliating, and that she felt racially stigmatized. It is noted in Gonzales' discrimination lawsuit that it could be amended to seek $1 million in punitive damages at a later date. Marriott does not comment on pending lawsuits.

If you need to discuss discrimination violations or if you need to file a 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.

Bay Area Solar Panel Installation Company Settles Racial Discrimination Lawsuit

In recent news, a Bay Area solar panel installation company was ordered to pay a settlement to settle a discrimination lawsuit. The East Bay solar company was allegedly denying their services to anyone management believed had Middle Eastern or Indian names. Racial discrimination of this type was supposedly standard practice at the company.

The Terms of the Settlement: Resolving Racial Discrimination Claims 

Fidelity Home Energy Inc. (out of San Leandro) and their successor, NorCal Home Systems Inc. (based out of Concord), paid $350,000 to a former employee. The two are also required to hire a consultant. Both actions are required to resolve the racial discrimination lawsuit. 

Racial Discrimination as a Standard Business Practice:

A former employee of NorCal Home Systems Inc., Ayesha Faiz, is of Afghan origin. Allegedly during Faiz’s first week on the job as a telemarketing supervisor, she learned that all prospective home energy systems clients whose names were considered Middle Eastern or Indian were rejected for sales appointments as a standard practice.  

The lawsuit claims that Faiz actively observed supervisors as they flagged customer records in the company’s internal database. Potential home energy systems customers with names that appeared to be Middle Eastern or Indian were placed on a “do not call list.” Faiz claims she was required to reject all the flagged potential customers and to expect her subordinates to do the same. These discriminatory actions occurred almost every day.

Alleged Discriminatory Behavior in the Workplace:

In addition to the standard business practice of placing all prospective customers with Middle Eastern or Indian names on a “do not call” list, Faiz claims she saw a post-it note on an employee’s computer that read, “No Indians.” She claims that some employees added notes to prospective customers’ records in the database with discriminatory comments like “Indian Name!” and “We won’t run this.”

Faiz was not only forced to discriminate against potential customers but specifically against potential customers of her own national origin, which left her so distressed that she quit her job after only a few weeks. During her resignation, Faiz told the company that it made her sick to know the company refuses service to any specific group or ethnicity - to go out of the way to single them out.

Faiz’s allegations described a hostile work environment, which violates the Civil Rights Act that prohibits employers from discriminating due to national origin. According to the terms of the settlement, Fidelity and NorCal will pay money for damages (as agreed) and hire an EEO consultant to help revise policies and procedures. The company is also required to update its database to remove the option to screen customer records by national origin, race, or ethnicity. The company is also expected to post a notice to all employees about the order.

If you need to file a racial discrimination lawsuit or if you need to discuss other employment law violations, 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.

Fired During her Battle Against Cancer, Tulare Woman Sues Harris Ranch Beef Co.

Yolanda Alcala, a Tulare woman who worked for Harris Ranch Beef Company for more than 20 years, filed a lawsuit at the Fresno County Superior Court claiming she was fired when she took medical leave to undergo chemotherapy after breast cancer surgery. Harris Ranch Beef Co., a Selma-based company, denies they faired Alcala.

Employment law requires that employers provide reasonable accommodations for employees when they have a disability or a severe illness. Common reasonable accommodations employers regularly make for employees include extending the worker’s medical leave or modifying the employee’s job duties. 

Alcala Claims She Was Fired for Taking Medical Leave to Receive Necessary Medical Treatment for Cancer:

Yolanda Alcala, the plaintiff, claims that when her long-time employer fired her, it felt like being disposed of like an old, used up rag. She turned to the law to get help because she wanted to see Harris Ranch Beef Company respect her rights as a worker as well as the rights of other workers in similar situations.

Harris Ranch Beef Co. Denies the Wrongful Termination and Disability Discrimination Allegations:

Harris Ranch Beef Co. tells a different story. They say that the story, as told by Alcala, is not what actually happened. Harris Ranch Beef Company Vice President for Risk Management and Human Resources, Mike Casey, claims the company is disappointed to hear about the pending litigation instigated by Alcala. He says the company complies with all state and federal laws and that they did not fire Alcala. Casey claims it was Alcala who chose to leave Harris Ranch Beef Company. Casey insists that the company provided Alcala with a superior health care plan that completely covered the costs of her cancer care and medical treatments throughout her two decades with the company. He also claims that Alcala’s complaint is full of inaccuracies and misrepresentations. They look forward to setting the record straight as the case proceeds.

The Company’s Claims of Inaccuracy and Misrepresentation Do Not Slow Alcala Down:

Alcala’s lawyer responded to the company’s claims on the plaintiff’s behalf, reaffirming that the company’s claims that Alcala was the one that terminated their working relationship of her own volition are not true. According to Alcala, there was a meeting in January 2018 where Alcala was terminated from her position without notice.

Allegations Included in the Lawsuit:

Alcala’s lawsuit includes numerous employment law violation allegations, including disability discrimination, failure to reasonably accommodate a disability, retaliation in violation of California’s Fair Employment and Housing Act, failure to engage in the interactive process, violations of California’s Unfair Business Practices Act, and wrongful termination. Before her cancer diagnosis and need for medical leave, Alcala had a record of being a dedicated and hardworking employee at Harris Ranch Beef Company receiving regular attendance bonuses and enjoying positive relationships in the workplace with both management and peers on the job.

If you need to discuss employment law violations or if you need 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.

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.