Employment Law Issues: Are Nurses Being Punished for Speaking Out About Coronavirus Unpreparedness?

Some say that nurses know we were not prepared for the coronavirus, and those who speak out are punished.

Nurses Not Provided with Basic Personal Protective Equipment: 

Chelsea Halmy worked the night shift at Providence St. John’s Health Center in Santa Monica. When she reported for her shift on April 11, 2020, she made a routine request for an N95 respirator mask before she came into contact with patients. As an experienced healthcare professional, she was well aware that the N95 masks were the most effective protection against the novel coronavirus. Yet the routine request was declined by her supervisor, who advised her that a standard surgical mask was good enough.

Speaking Out About Unsafe Work Environments:

Halmy refused to work with patients until she was provided with the N95 equipment. After her refusal, she was taken to a closed room where her supervisor read from a script that threatened to charge her with insubordination and a “patient abandonment” report to the state Board of Registered Nursing (which could result in the loss of Halmy’s hard-earned nursing license). 

Retaliation in the Workplace for Refusing to Work in Unsafe Environments:

Her supervisor then asked her if she would accept a direct order to work with a specific patient who was a Covid-19 patient. She responded that she did want to take her assignment but didn’t feel comfortable going into the room with the patient without an N95 respirator. Three other nurses were allegedly subjected to the same treatment that same night, and seven others earlier that same week. All the nurses who did not accept their patient assignment without the requested N95 respirator were sent home. Since that time, the hospital has backed away from its stance that N95 masks are not necessary for nurses in the unit, but the ten nurses are still on suspension.

Nurses and Healthcare Professionals Throughout the Nation Are In Similar Situations:

Nurses at UC Irvine Medical Center, UCLA Medical Center, and many other healthcare facilities throughout California have participated in multiple candlelight vigils and protests since January 2020 in an attempt to bring attention to conditions and the need for additional protective gear and N95 respirators so they can safetly treat coronavirus patients. Registered nurse Patty Pinedo actively sought to treat residents in a West L.A. hotel that was turned into housing for the homeless during the coronavirus pandemic.

Other Essential Workers Are Also Facing Likely Exposure During Covid-19 Pandemic: 

Many other front-line occupations that require direct contact with others can result in dangerous levels of exposure to the virus, like grocery store workers, delivery drivers, etc. But most will agree that healthcare workers are the most vulnerable at this time since their work requires them to come into contact with the virus and to be in close contact with Covid-19 patients in confined spaces. Nurses spend more time with patients than most other hospital employees and staff, and the coronavirus is taking its toll on California healthcare workers. In addition to the threat of exposure to the virus, nurses seem to be suffering an outbreak of threats of termination and discipline from management in response to routine requests for standard safety equipment (or PPE), or public complaints about their facility’s lack of preparation.

More and more healthcare professionals are speaking out about unlawful practices and policies being instituted by healthcare facilities in response to shortages and unpreparedness during the Covid-19 pandemic.

If you need to file a whistleblower lawsuit or if you need to discuss workplace retaliation, 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.

Whistleblower Claims Litter the Horizon During the Covid-19 Crisis

In the past several weeks, we have seen some mighty changes due to the spread of the coronavirus. In recent weeks, we’ve also seen many employees (particularly health care industry employees) claiming workplace retaliation after reporting health and safety concerns in connection to Covid-19 and exposure to the rapidly spreading coronavirus.

Whistleblower Claims Due to Covid-19 Pandemic on the Horizon: 

According to a recent article in the Washington Post, OSHA (Occupational Health and Safety Administration) had already received thousands of complaints from employees just a week into April 2020. The allegations were from employees citing a lack of protections against Covid-19 in their work environments. On April 8, 2020, OSHA released a press release urging employers to remember that it is illegal to retaliate against workers that report unsafe or unhealthy conditions in the workplace during coronavirus.

What is the Occupational Health and Safety Act of 1970/  

The Occupational Health and Safety Act of 1970 (OSH Act) is one of the whistleblower protections, and anti-retaliation statutes employees can depend on for protection during the Covid-19 crisis. Section 11(c) of the Occupational Health and Safety Act of 1970 prohibits employers from retaliating against employees that exercise their rights under the statute, including raising a health or safety complaint.

Does the Law Require Employers to Provide a Safe Workplace?

In Section 5(a)(1) of the OSH Act (often referred to as the General Duty Clause), employers are required to provide a workplace free from “recognizable hazards” that are likely to cause death or severe harm.

Does OSHA Enforce Any Regulations Specific to Health Concerns Associated with Covid-19?

OSHA also enforces regulations that are specific to health concerns that have been associated with Covid-19.

29 CFR § 1910, Subpart I: Outlines OSHA’s Personal Protective Equipment standards requiring the use of gloves, eye and face protection, and respiratory protection for employees working in specific industries. 

29 CFR § 1920.134: Defines OSHA’s Respiratory Protection Standard and requires that employers implement a comprehensive respiratory program when respirators are necessary to protect workers. 

OSHA recently issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for health care workers during the COVID-19 pandemic.

OSHA’s Guidance on Preparing Workplaces for COVID-19, a recently published document related to the current crisis, contains recommendations for employers on how to provide a safe and healthy workspace during the COVID-19 crisis. 

What is the National Labor Relations Act? 

Certain sections included in the National Labor Relations Act prohibit employers from retaliating against an employee for various reasons. A March 30, 2020 decision from the National Labor Board (Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276) indicates that this section applies to healthcare workers voicing concerns about working conditions in health care facilities. 

California Whistleblower Statutes Amid Covid-19 Crisis: 

In the state of California, we have numerous statutes that offer employees the right to make a whistleblower or workplace retaliation claim. Some of the laws are specific to healthcare workers. 

California Health and Safety Code § 1278.5: Designed to encourage medical workers to report suspicions of unsafe patient care and conditions to government entities, it prohibits healthcare facilities from retaliating against an employee or worker for presenting a complaint related to the quality of care, services or facility conditions. 

California Labor Code § 6310: Prohibits employer retaliation against employees who complain about employee safety or health. 

California Labor Code § 6311: Prohibits employer retaliation against employees who refuse to violate occupational safety or health law or any duty that would create a hazard to themselves or other employees during their job.  

Tameny Claim: In California, employees may bring a common law claim for retaliation or a Tameny claim. Policies that can give rise to a Tameny claim include protections against retaliation for reporting unsafe working conditions. Employees can bring a Tameny claim in addition to claims arising under California’s whistleblower statutes.

If you need to discuss workplace retaliation or if you need to file a retaliation 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.

California Labor Law Issues Stemming from the Novel Coronavirus

The novel coronavirus has changed the day to day lives of many during the past weeks. The changes wrought by this unprecedented situation are making waves that seem to ripple through the legal landscape.

California Labor Law Issues Stemming from Coronavirus:

California labor law issues connected to the spread of the coronavirus are making themselves known. Uber drivers have been fighting for employee rights citing misclassification for years, but their arguments are escalating quickly in response to the coronavirus. 

Uber's Response to the Coronavirus Pandemic and Escalating Litigation: 

In response to the situation, Uber released a temporary pandemic-specific policy. The policy was introduced at the beginning of April 2020 after Uber drivers requested a California judge issue an emergency order to require Uber to classify them as employees during the coronavirus crisis. The drivers argued that failing to do so puts the public in danger as drivers classified as independent contractors are more likely to keep working when infected, which could further the spread of the virus at a crucial time when flattening the curve is so vital.

Introducing Covid-19 Sick Leave for Uber Drivers:  

The temporary policy Uber introduced in response to the demand for employee status is more stringent than protections provided to employees under the California labor code. However, it requires documentation of a Covid-19 diagnosis form a doctor or a personal order to quarantine, which still leaves a substantial risk to the public as many sick drivers will not be diagnosed or ordered to quarantine. With many of California's drivers living "check to check," they cannot obtain a doctor's note and will keep working even if exhibiting Covid-19 symptoms. The plaintiffs' counsel argues that this situation presents a risk of significant harm to the drivers themselves and the public.

The Response to Uber's Temporary Pandemic Sick Leave Policy:

Under the temporary policy Uber introduced, drivers would lose work (up to several hours) attempting to obtain the required doctor's note. Those who do not have Covid-19 symptoms have been advised to avoid visiting health care facilities. Doctors are busy – they don't want to be bothered to write a note to your employer. And U.S. District Judge Edward Chen agreed as he was recorded as responding that "getting a doctor's note may be problematic…" The judge suggested the gig rideshare company consider offering a self-certification process for drivers who can't easily gain access to a physician. 

Back to the Drawing Table to Seek a Better Temporary Solution:

While Uber argued that the temporary sick leave policy combined with the federal Families First Coronavirus Response Act and CARES Act, would provide more for affected drivers than employees receive under California state law, Judge Chen instructed both parties to try again suggesting an interim, pandemic-specific policy allowing drivers to access paid sick leave without a doctor's note or personal quarantine order.

If you need to discuss how to file a misclassification lawsuit or if you have questions about employment law violations amid the Covid-19 crisis, 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.

Will Uber Drivers Choose Between Employee Status and Covid-19 Pay?

The arrival of the novel coronavirus left Uber drivers with a strange choice. Is immediate relief worth giving up on the end goal? Should they choose Covid-19 pay over employee status?

Capriole v. Uber Technologies Inc.: Transferred to California Court

Initially filed in Massachusetts federal court, Capriole v. Uber Technologies Inc. was transferred to the Northern District of California, where several almost identical lawsuits were already in process. Plaintiffs in the cases are gig drivers naming Uber and Lyft as defendants. Capriole claims Uber misclassifies drivers as independent contractors and fails to provide drivers with paid sick leave. The lack of paid sick leave and other traditional employee benefits posed apparent problems for drivers who sought benefits afforded those with employment status.

Covid-19 Makes this Misclassification Issue Harmful to the General Public

The spread of Covid-19 introduced a new, more universally felt consequence to this particular issue. Drivers with no access to sick pay are more likely to continue working while they are sick. As a result, the public, currently struggling to face the spread of Covid-19, is taking note of the situation. Uber drivers, when confronted with the choice to stay home with no pay and risk their livelihood, their housing, and ability to provide the necessities, are instead choosing to continue working even though they may risk exposing hundreds of passengers each week by doing so. 

The History of the Case:

Before the lawsuit was transferred to California, the plaintiffs sought a preliminary injunction to require Uber to reclassify drivers as employees and comply with wage and hour law (including laws requiring paid sick leave), urging the court to adopt California case law as precedent. Still, the Massachusetts court denied the application citing insufficient evidence of the risk of irreparable harm. Since the case was transferred to the Northern District of California, it has been renewed as an emergency motion, and the judge ordered the parties to start negotiations to come up with a temporary solution.  

The Introduction of Uber’s Covid-19 Sick Pay Policy:

Uber introduced a financial assistance policy for active drivers during the pandemic on April 10th. The updated plan would allow drivers to take advantage of up to 14 days of financial assistance if they test positive for Covid-19, are placed in quarantine, if a public health authority or licensed medical provider asks them to self-isolate, or if Uber restricts their account after a public health authority indicates the driver may have been exposed to Covid-19. While the policy is more generous than California law requires in terms of “time,” the eligibility requirements appear to be more restrictive.

Temporary Measures Do Not Address the Actual Problem:

Drivers, at least initially, are rejecting the proposed compromise stating that while it addresses a problem in the current scenario, it does not solve the actual problem. Drivers insist that the issue is not limited to whether they are sick or not, etc. but whether they are entitled to wages and the other traditional benefits of employment under California labor law. Some are calling the financial assistance Uber offered through the recently updated policy a bandaid that is preventing (or at least delaying) resolution of the underlying problem.

If you have questions about misclassification or if you need to file a California overtime 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.

How is California’s Labor Bill AB5 Affecting the Covid-19 Crisis?

In the current landscape, many of California’s independent contractors and freelancers claim Labor Bill AB5 adds fuel to the fire during the Covid-19 crisis as it further restricts work opportunities.

Unprecedented Unemployment During Covid-19 Has Many Looking at AB5:

The COVID-19 crisis has resulted in unprecedented levels of unemployment across California. With more workers being laid off every day, thousands are starting to look at California Labor Bill AB5 and claim it is making the economic outlook worse.

How Does California Labor Bill AB5 Affect California Amid Covid-19 Crisis?

Legislators, business owners, and many economists are starting to claim that the 2019 bill impedes the state economy and places a burden on the health care system at a point when it is already strained by the novel coronavirus and resulting Covid-19 crisis. According to local media, many hospitals rely on independent contractors to provide health services (particularly in rural areas). With thousands of California workers facing Covid-19 pandemic inspired unemployment, AB5 leaves them in a tight spot, where it’s close to impossible to take on temp jobs from home.

Will the Governor Suspend AB5 Amid Rising Unemployment Due to Covid-19?

Republican candidate for the 50th Congressional District, Darrell Issa, asked Governor Newsom to suspend AB5, insisting that independent contractors and freelancers should be allowed to work. Over 17,000 have joined the Freelancers Against AB5 Facebook, claiming the new law strips them of their freedom, flexibility, and livelihood. As other politicians join the fray calling for the bill to be repealed, the governor has so far not relented. In response to the governor’s response, petitioners are circulating. One such petition, called Freedom to Work, calls upon citizens to “Repeal AB5 Now” and “join the fight!”

California Labor Bill AB5 Was Designed to Address Rampant Workplace Violations in the Gig Economy:

Legislators designed AB5 to protect more than one million gig economy freelancers by making them eligible for benefits. Under AB5, employers are required to meet strict requirements to classify workers as independent contractors (who do not qualify for employment benefits like health insurance, and unemployment). Even before the coronavirus made itself known, AB5 was inspiring widespread layoffs as companies couldn’t meet the increase in labor costs. When coronavirus arrived on the scene, thousands of California’s freelance workers were already out of work.

California Workforce Calling for Flexible Employment Amid Covid-19 Crisis: 

Lorena Gonzalez, the bill’s author, created the law to push employers to recognize their independent contractors as employees, which would make them eligible for employee benefits. Still, many independent contractors believe the bill backfired and that it takes their rights away. Many Californians are calling for change, insisting that right now, it’s more important than ever to have access to flexible employment. Consumers need to be connected by the services many of these independent contractors provide during the crisis, from online tutors to food delivery drivers and even online health professionals. Activists seeking a repeal of AB5 insist that if the goal is minimizing economic damage, AB5 makes no sense, and is hurting the state’s response to the virus.

If you need to talk to someone about employment law violations related to AB5 or Covid-19, 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 Wage Theft Lawsuit: Papa John’s Settles for $3.4 Million

Papa John’s requested approval of a $3.4 million settlement to end a wage theft lawsuit in the Central District of California. According to the lawsuit, Papa John’s allegedly failed to pay workers for mandatory training time. Required training without pay, as described in this lawsuit, violates the Fair Labor Standards Act and California labor law. 

As the case proceeds towards settlement, some are left wondering about issues left unresolved in the case.

Should Companies Be Held Liable for Franchise Wage Violations? 

Should Papa John’s International, Inc. be held liable for wage violations of company franchises? In 2019, about 8.43 million Americans worked for franchises across the nation, many of which were earning minimum wage. As minimum wage workers, as a general rule, they could not afford unpaid training hours. While required on the job training is against the law (this is not in question), it is less clear who is responsible for the wage violation. 

The Avalos v. Papa John’s International, Inc. Case:

Sofia Avalos, along with other California Papa John’s delivery drivers, and a proposed class of hourly employees were all allegedly required to complete online training modules to teach them their job duties and provide the level of service necessary for the position. These required training modules needed to be completed before clocking in or after clocking out for their shift. While they were required to spend time completing the training on Papa John’s corporate site, they were not paid for the time necessary to complete the modules. Workers involved in the suit claim this was a common practice for Papa John’s facilities across the nation. The method of logging the training as complete indicates that Papa John’s International was aware or had reason to be aware that it was being completed “off the clock.” Since the employees’ total number of hours were miscounted, calculations of minimum wage, overtime pay, and final wage statements were also incorrect.

The Settlement Agreement for Papa John’s Wage Theft Suit:

Choosing discretion to a big legal battle, Papa John’s International decided to settle. The settlement agreement designates 30% of the gross fund for worker’s attorney fees and $80,000 for legal costs. $185,000 is to administer the settlement. Corporate-owned store employees who submit a claim will receive a payment up to $166, and franchise employees will receive $50 gift cards.

The Risk of Joint Employment in Avalos v. Papa John’s International, Inc.:

One of the reasons Papa John’s International turned to settlement, in this case, is most likely the risk that the court could decide that Papa John’s, the corporate parent in this scenario, is a joint employer of franchise pizza delivery drivers. Turning to the settlement agreement allows them to avoid this issue as settlements do not create a precedent. Setting aside the $50 “gift card” provision, the lack of a precedent is a victory for the defendant in this case.

If you need to talk to someone about wage theft or if you need to file a wage and hour 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.

California Employers Facing Novel Employment Law Challenges Due to Coronoavirus

California employers are facing new and difficult challenges due to the spread of coronavirus. Many are facing difficult employment law compliance questions.

The spread of the novel coronavirus is presenting extraordinary challenges and the possibility of new responsibilities. Some California businesses are wondering if courts will eventually be asked to judge whether or not alleged actions taken by a company or employer contributed to the spread of the virus?

Increasingly Severe Guidelines & Defining the Legal Duties of California Employers:

The severity of guidelines imposed by California authorities are increasing; bans on movement, bans on gatherings, etc. Privately owned entities throughout the state are unsure how to act, and in some cases, are engaging in over-compliance with sporting event suspensions and workplace closures. Amid the various guidelines and recommendations, what are the legal duties of California employers during the coronavirus crisis? In order to define an employer's legal responsibilities in connection to employment law questions during the Covid-19 pandemic, it's best to pose the questions they are struggling to answer.

What Should a California Employer Do If an Employee Tests Positive for COVID-19?

If a California employee tests positive for COVID-19, the employer should issue a broad warning after considering the potential reach of the exposure, considering all those within any degree of its control. For example, in a 2013 case, the court held Long Island Railroad liable to a cashier at a diner. The railroad knew its employees were entering the diner carrying asbestos on their gear. While the railroad did not own the diner, the court held them liable because they term in the diner's lease allowed the railroad to dictate the diner's hours of operation, which amounted to exercising control over the restaurant. Since they held this "control," they also held a duty to warn. 

What Information Should a California Employer Include in a Warning?

If issuing a warning in response to an employee testing positive for Covid-19, the employer should include all known information. While actual risks may be minimal, the reported risk of death must be factored in alongside the duty to warn. Make the warning as complete as possible while addressing the privacy concerns of the affected employee.

What Protective Measures Should an Employer Take if an Employee Has Covid-19? 

After an employee tests positive for Covid-19, a California employer should take additional reasonable protective measures. When issuing warnings and recommendations, employers should also consider their degree of control over their employees and their employees' required job duties. For example, if an employee cannot complete their job without avoiding potentially affected places, a warning is not sufficient response to a positive Covide-19 test in the workplace. In this situation, the employer has a responsibility to provide employees with a safe workplace. Implement proper infection-control processes to minimize the chance that potentially infected areas and people do not spread the virus. If an employer has concrete information that a workplace may be infected (i.e., an employee's positive Covid-19 test result), there is an inherent duty to remedy the situation. Doing so may require thoroughly disinfecting the workplace and requesting that exposed employees self-quarantine.

How Can an Employer Protect Themselves If Their Workforce is Exposed?

If an employee in the workforce tests positive for Covid-19, the employer should alert authorities and follow official guidance to help show that they were actively seeking to implement appropriate and reasonable measures in response to the situation. It is also a good idea to consider how peers and competitors are responding to similar situations. Many companies have adopted processes that surpass the requirements put in place by health authorities, such as closing offices, closing venues, canceling events, etc. In future cases related to Covid-19, plaintiffs will present (and juries will be allowed to consider) information about measures other companies and groups instituted at the time as examples of appropriate conduct. 

Do California Employers Need to Do Anything if They Are Not Aware of Any Covid-19 Exposure?

If an employer is not aware of any specific contact with coronavirus in their workforce or their business, they can still take reasonable and appropriate actions.

Stay Informed: Be aware of the potential dangers. Designate someone as responsible for keeping informed of the spread of the epidemic and any developments in areas related to the company, any of the company's locations or any of the company's employees. Make sure employees know how to report any suspected exposure.

Alert Employees: Make sure employees are aware of the general risks of the coronavirus and offer them necessary guidance and information regarding how to stay safe, like washing hands regularly throughout the day. 

Implement Reasonable Preventive Measures: As always, employers should maintain a safe workplace. Right now, that means staying ahead of the coronavirus by minimizing chances of infection and exposure in the workplace. Depending on the type of business, this may mean canceling non-essential travel (particularly to areas with high rates of infection), providing sick workers with the chance to stay away from the workplace, encouraging workers to telecommute when possible, etc. Clean and disinfect to keep the workplace free of the SARS -CoV-2 spores that cause COVID-19. Preventive measures will help California employers avoid liability for creating an unsafe work environment.

In these unprecedented times, there are a myriad of potential legal issues related to the spread of the novel coronavirus. If you have questions about California employment law issues connected to the spread of Covid-19, 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.