Former Amazon Manager Claims She Searched Social Media of Job Applicants to Determine Race and Gender

Lisa McCarrick, former Amazon Manager, sued the massive online retailer, alleging Amazon fired her because she raised concerns about scouring job applicants' social media to determine their race and gender during the application process. McCarrick, 38-year-old, claims that her supervisor required her to search applicants' social media, and when she complained about the practice, she was fired from her position at the company.

Former Amazon Manager Files Suit for Various Employment Law Violations:

McCarrick is a resident of Rocklin, which is located about 20 miles outside of Sacramento. McCarrick's California wrongful termination lawsuit against Amazon was filed in the Superior Court of California, Alameda County. McCarrick alleges retaliation, wrongful termination, failure to prevent discrimination in the workplace, and violations of California's labor code.

Allegations of California's Equal Pay Act Violations:

McCarrick is also suing Amazon for violating California's Equal Pay Act, claiming that she was paid significantly less than male co-workers who performed similar job duties. Amazon hired McCarrick as a Loss Prevention Manager in July 2018. Five months later, she was promoted to a regional manager position. According to the lawsuit, McCarrick's new supervisor told her she needed to search social media profiles of any prospective new hires with the express purpose of determining "race/ethnicity and gender."

Amazon Previously Faced Lack of Diversity Claims:

McCarrick was aware of previous criticism of Amazon due to lack of diversity in the workplace, and she thought the requirement to search out race and gender based on job applicants' social media was unlawful. Her concerns led her to submit a written complaint in September. In the written complaint, she also noted the gender-based pay disparity.

McCarrick Claims She was Wrongfully Terminated from Her Job:

Within two months of submitting the written complaint, McCarrick was called into a meeting with human resources and the Director of Loss Prevention. She was informed that she was terminated from her position with the company. During the same meeting, her direct supervisor admitted to using social media to determine the race and ethnicity of prospective new hires. The Loss Prevention Director allegedly attending the meeting advised McCarrick that while her male co-workers did make more money than her…" that happens all the time at Amazon." During her time at the company, McCarrick always received positive performance evaluations. Still, at the time of her termination, the reason cited for her firing was that she did not meet expectations.                                                         

If you need to talk to someone about workplace discrimination or you need to file a wrongful termination 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.

Famed California Art School Faces Wrongful Termination Lawsuit from Estate of Former Otis College Director

The estate of former Otis College Director, Bruce W. Ferguson sued famed California art school, Otis College of Art and Design, alleging wrongful termination. Ferguson passed away in 2019 after amassing numerous notable career achievements during his lifetime.

About Former Otis College Director, Curator Bruce W. Ferguson:

In 1993, Ferguson founded the art space SITE Santa Fe, a destination in New Mexico, and organized parts of editions of the Venice Biennale, the Bienal de São Paulo, and the Biennale of Sydney. His final professional position was president of the Otis College of Art and Design. His time at the famed California art school ended only months before he died at age 73, but controversy abounds now that he is gone. 

The Former Director's Estate Files a Wrongful Termination Lawsuit:

Ferguson's sister, Anne Marie Ferguson, filed a lawsuit in the Western Division of the United States District Court for the Central District of California. The lawsuit alleges that the school forced Ferguson out of his position, discriminating against him due to his illness associated with his pancreatic cancer diagnosis. When filing, Anne Marie Ferguson listed the school as well as "Does 1 to 10" as defendants. The designation "Does 1 to 10" refers to various John or Jane Does that may be added to the suit as the case progresses.

Allegations Made in the Wrongful Termination Lawsuit:

Ferguson's sister claims that the famous art school rushed to fire him due to his disability and need for accommodations. According to the suit, the Otis College board's claims of poor performance were a fabricated "pretext" to justify firing Ferguson. One of Anne Marie Ferguson's attorneys said he's never seen…" an employee get a raise, a diagnosis of cancer, and then fired all within a matter of months."

Ferguson's History on the Job at Otis: 

Ferguson took the job as President at Otis in 2014 and was diagnosed with cancer in 2018. In early 2019, Ferguson privately disclosed his illness to Gail Buchalter, the chair of Otis's board. Last February, he advised Otis faculty of his diagnosis. A group of faculty members submitted a letter of "no confidence," citing low morale at the school and the need for transparency in leadership. (The former director's estate regards this letter as the pretext the school used to justify Ferguson's dismissal). Last March, Ferguson was preparing to undergo chemotherapy when he was placed on administrative leave. According to the suit, one board member told him he was "axed."

The Estate Claims Otis Violated Employment Law:

According to the estate's attorneys, the school's actions violate the Fair Employment and Housing Act, which protects workers from discrimination based on race, gender, sexuality, religion, or disability, as well as the American's with Disabilities Act. In addition to discriminating against Ferguson due to his diagnosis and perceived disability, the estate alleges retaliation.

If you have questions about discrimination, retaliation, or wrongful termination in California workplaces, 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.

California Chipotle Workers Denied Class Action Certification

California Chipotle workers were recently denied certification of a potential class action. The U.S. District Court for the Northern District of California explained that at the class certification stage, it isn’t enough to assert that there were company-wide policies. The plaintiffs must prove that the alleged policies exist on a “company-wide basis.”

About the Discrimination Case: Guzman v. Chipotle Mexican Grill, Inc.

The plaintiffs brought the class-action lawsuit alleging that Chipotle systematically discriminated against Hispanic or Mexican workers with claims under the California Fair Housing and Employment Act (FEHA). Plaintiffs in the case sought class certification with a proposed class of about 43,000 workers (mostly Hispanic or Mexican hourly workers). The suit alleged numerous discrimination, retaliation, and harassment claims based on two alleged Chipotle policies:

What Chipotle Policies Led to the Discrimination Suit?

English-Only Policy: Plaintiffs in the case alleged there was an unwritten policy that prohibited Chipotle employees from speaking Spanish on the job.

Promotion Policy: The plaintiffs in the case also alleged that an unwritten Chipotle policy required a subjective English proficiency before a Chipotle employee could be promoted to a management position.

Were Alleged Unwritten Policies Company-Wide?

The plaintiff employees alleged that the unwritten policies applied at all California Chipotle locations (approximately 400 across the state). The Defendant argued that there was a lack of evidence demonstrating this claim. Additionally, Chipotle argued that even if the unwritten policies did exist and were company-wide, claims would require individualized inquiries into the company policies, including the alleged decision-making by supervisors determining promotion, etc. at individual restaurants. The court’s response to the request for class certification was that when considering class certification, the court cannot accept the Plaintiffs’ theory of the case at face value, but must instead engage in rigorous analysis to determine whether or not Rule 23 is satisfied. In some cases, this analysis overlaps with the merits of the dispute.

Did Plaintiff Employee’s Evidence Rebut Their Own Argument?

The court also stated that the plaintiff’s evidence offered in support of their argument actually rebuts the inference that Chipotle uniformly imposed the named policies across all their California locations. When examining 12 declarants, the court received differing responses. Half the declarants did not experience the alleged English-only policy. Some who claimed they experienced the alleged English-only policy were permitted to speak Spanish among themselves at work. The declarant testimonies led the court to conclude that there was no evidence of a “company-wide” English-only policy applicable across the entire proposed class.

The plaintiffs and declarants also experienced different policies and requirements for promotion, depending on their location and their supervisor. One declarant asserted they did not experience the alleged promotion policy at all. Some “similar” experiences were noted, but those employees worked in the same store under the same general manager. Testimonies on record indicated that four of the 400 California Chipotle locations had employees who were told at varying times that promotion depended on improving their English proficiency. Based on testimonies offered, the court concluded that, in regards to the unwritten promotion policy, the evidence did not suggest a uniform, “company-wide” policy applicable to all class members.

Without a common question of law or fact, class certification is not appropriate since the suit would not be resolved efficiently in a single proceeding. Due to these facts and findings, the court denied class certification. This action is a reminder to California employees that class action certification requires proof of the existence of a uniform policy – especially when allegations are based on unwritten policies.

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.

$3.65 Million Settlement Goes to Dancers for California Labor Lawsuit

A $3.65 million settlement was approved by the District Court for the Central District of California, effectively ending the California labor lawsuit alleging that The Spearmint Rhino nightclub chain made a practice of misclassifying dancers as independent contractors. The practice of misclassifying workers as independent contractors violates FLSA (the Fair Labor Standards Act) and California Labor Law.

The Spearmint Rhino Misclassification Lawsuit Receiving Extra Attention:

The dancers at Spearmint Rhino nightclub offered nude, semi-nude, or bikini entertainment to the club’s patrons at various locations since October 30, 2017. In the end, they will net approximately $2.6 million. The misclassification lawsuit filed by Spearmint Rhino’s dancers is just one in a long series of suits and related legal actions that are inspiring a noticeable reaction. The attention this case received is party due to the novelty of a sex industry labor lawsuit, but also due to the currently charged political debate about AB 5, California’s new gig worker law based off of the Dynamex decision.

Dancers Actually Pay their Employer to Work for Tips:

Did you know that in many cases, dancers in the sex industry end up paying their employers so they can work for tips? It’s true. The economics of exotic dancing are unlike anything you’ve seen in other industries. Dancers are required to pay an assortment of “fees” such as house fees or dance floor fees before performing at an establishment.

In some cases, the dancers must sign an agreement requiring them to pay a lease fee for the “business space” they will be using. Additionally, many employers in this industry charge exotic dancers a higher stage fee if they are not fully nude by the end of their performance. Exotic dancers do not receive wages; they work for tips. Dancers share their tips with the bartenders, DJs, and dressing room helpers (often referred to as House Moms). If it’s a slow night, an exotic dancer may go home with very little to show for a full shift.

Legal Actions Targeting the Exploitative Sex Industry:

Ortega v. The Spearmint Rhino is just one in a series of similar lawsuits. The change that would come with AB 5 would not be limited to exotic dancers or the sex industry. The legislation was originally drafted to address misclassification issues in the gig economy. AB 5 applies to any California worker who finds themselves pushed or forced into independent contractor status without fully understanding the consequences of the classification.

Opponents of AB 5 Refuse to Comply or Seek Exemption

The purpose of AB 5 is to address misclassification in the workplace. Misclassification is a significant issue because employees have essential wage and hour protections in place that do not apply to independent contractors. In some cases, it can be difficult to distinguish between an employee and an independent contractor. Following Dynamex, the legislature introduced AB 5 to address this problem using a simple test to determine which workers are employees (and entitled the protections of employment law), and which workers are independent contractors.

Many employers actively fought against AB 5 before it was enacted. Some were exempted using modifications to the law. Other California employers (like Uber and Lyft) announced that they would not comply with the terms of AB 5. In the face of such powerful opposition, some wonder what would happen to workers like the Spearmint Rhino dancers if AB 5 is repealed or left without the power of effective enforcement through additional amendments or judicial limitations?

The Fate of California Misclassification Suits: With or Without AB 5

The Ortega suit against Rhino Spearmint night club was filed in before AB 5 was enacted – in February 2017. It was filed before the Dynamex decision that led to the legislative change. While the case did not receive an actual judicial decision, the defendant found the arguments presented strong enough to warrant making a settlement to resolve the matter out of court. This conclusion would be likely with or without AB 5 in place. While it is likely that misclassification lawsuits would be more difficult for California workers to win without AB 5, it is not their only hope.

If you need to discuss misclassification or how to file a misclassification 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.

Did Apple Violate the Law by Not Paying Employees During Mandatory Searches?

In July 2015, the employees suing Apple for not paying hourly wages for the time spent waiting in lines for mandatory, daily security checks got their case certified as a Class Action. And now the California Supreme Court ruled against Apple.

Are Mandatory Searches a California Labor Law Violation?

On February 13, 2020, the California Supreme Court found Apple Inc. in violation of California labor law due to their failure to pay employees for time spent waiting for mandatory bag and iPhone searches after work shifts. The decision is the latest progression in the battle over off-the-clock work payment. This case represents the California Supreme Court’s third wage and hour decision in two years that interprets the state’s employee-protective wage requirements. At the trial level, Apple came out on top with the U.S. District Court for the Northern District of California finding that Cupertino, California Apple employees chose to bring their bags and purses to work and therefore choosing to be subjected to mandatory searches. But on appeal, the U.S. Court of Appeals for the Ninth Circuit turned the question over to the state court for interpretation of California labor law.

Determining Who Holds the Power During the Mandatory Search:

Since compensation depends on whether or not the employee is under the control of the employer, it is crucial to determine if Apple workers are under Apple’s control while they wait in line for mandatory searches, while they are undergoing the mandatory searches, and when they are exiting the mandatory searches. The mandatory searches occur when Apple employees finish their shifts and wish to leave the premises for the day. The exit search is a burden to Apple employees because it prevents them from leaving with their personal belongings until they have completed the thorough (and mandatory) exit search. The mandatory search process can take anywhere from five to twenty minutes. Employees are required to make specific movements and actions during the mandatory search.

Apple Claims Mandatory Searches Benefit Employees:

Apple claims the bag-search policy is justified as providing a benefit to Apple employees. Still, the court finds this far-fetched under the circumstances of the case and in consideration of regular, 21st-century living. The case will return to the Ninth Circuit, the same court that already held that Nike and Converse must face workers’ claims that they should receive payment for time spent in post-shift bag searches.

If you need to discuss employment law violations or if you need to file an off-the-clock work 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 Company Forced to Pay Settlement for Racial Discrimination Lawsuit

Fidelity Home Energy Inc. and successor NorCal Home Systems Inc. out of Concord were forced to pay a settlement for allegedly denying service to any that management deemed likely to be Indian or Middle Eastern based on their names. The Bay Area solar panel installation company will settle the racial discrimination lawsuit with a $350,000 settlement paid to a former employee. The terms of the settlement also require the company to hire a consultant to assist them in changing company policies and practices in violation of the law.

NorCal Home Systems' $350,000 settlement is paid to Ayesha Faiz. Faiz, who is of Afghan origin, learned within a week of starting her job as a telemarketing supervisor at the company that potential customers that sounded Middle Eastern or Indian were regularly rejected for home energy system sales appointments.

Lawsuit Alleged Racial Discrimination was Standard Practice:

According to court documents, Faiz watched as supervisors purposefully tagged customer records in the company's internal databases and placed them on a "do not call" list. Faiz claims the company forced her to reject the potential customers multiple times per week. Additionally, her supervisor's forced her to instruct her subordinates to practice the same discriminatory behavior towards the potential customers who had Middle Eastern-sounding or Indian-sounding names.

At one point during her employment, Faiz saw a note stuck on a worker's computer that stated clearly, "NO INDIANS." Some employees at the solar panel installation company wrote notes on the digital customer files within the database for anyone they thought were probably Middle Eastern or Indian. Comments on the customer files ranged from "Indian Name!" to "We Won't Run This." The company denies the allegations Faiz made in the lawsuit. They insist that they did nothing wrong and that they are moving forward with their business practices as is.

Identifying Discriminatory Practices in the Workplace:

Yet Faiz was forced to discriminate against potential customers of her own national origin. It was so distressing for her that after a few weeks, she quit the job that required active discrimination daily. She could not handle working for a company that refused service to a particular ethnicity and went out of their way to single them out and separate them from the list of possible customers. The EEOC determined this constituted a hostile work environment in violation of the Civil Rights Act prohibiting discrimination by employers based on national origin.

The settlement, a three-year consent decree, requires Fidelity and NorCal to provide money to Faiz for damages and hire an EEO consultant to assist in revising NorCal's policies and practices. NorCal is also required to update their databases and remove any notes or information used to "screen" potential customers by ethnicity or national origin.

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.

Former Principal Claims for Catholic School Files Wrongful Termination Suit

A former principal at a Catholic elementary school in La Mirada, 38-year old Bobbie Castillo, claims she was wrongfully terminated. According to the suit, when she told her supervisor that she was pregnant (in 2014) and would be going on maternity leave, the Rev. Joseph Visperas responded, “You’re coming back in two weeks, right?”

Reverend Joseph Visperas is pastor of St. Paul of the Cross Catholic Church. Castillo described his voice as serious when he made the above remark about being back in two weeks from maternity leave.

The pregnant Catholic school principal eventually responded by filing a wrongful termination lawsuit.

Plagiarized Material or Too Much Maternity Time?

Castillo filed suit in October 2015 in Los Angeles Superior Court, listing the Archdiocese of Los Angeles as Defendant. A jury will hear the case. The Archdiocese of Los Angeles claims Castillo lost her job after she allegedly plagiarized material included as part of the school’s accreditation renewal requirements. Castillo maintains she was terminated from St. Paul in March of that same year because of her pregnancy and because she exposed misconduct perpetrated by others there at the school.

History of Castillo’s Wrongful Termination Case:

Castillo started working at the school as a seventh-grade teacher in 2007. She was promoted to principal by Visperas four years later. Before her two-month maternity leave (Oct. 2014-Jan. 2015), while she was principal, she took a similar amount of maternity leave time in 2009 while she was a seventh-grade teacher. Castillo testified that she worried about the odd remark Visperas made about her maternity leave because it was made in March, which is the month that principals are usually offered contract proposals for the upcoming school year. According to Castillo, she never received a contract until she returned from maternity leave the next February. Castillo also claimed that not long after his first odd remark about her maternity leave, Visperas advised her he was going to have members of the staff rate her. The combined factors left her worried about her job status.

Was She Fired Because She Was Pregnant?

Castillo claims she was wrongfully terminated because she got pregnant and because she reported misconduct other at the school engaged in, including charging some of the student’s parents for unworked bingo game hours. According to Castillo, the replacement the school found for her was no longer of child-bearing age. Castillo also claims that when the book was turned in (including the section she allegedly “plagiarized”), she was in labor, and there was no evidence that she drafted the portion indicated.

If you need to discuss employment law violations or if you need to file a pregnancy discrimination lawsuit or wrongful termination 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.