Increased Termination and Discrimination Lawsuits on the Horizon Due to Coronavirus

In response to the Covid-19 pandemic, many companies furloughed or laid off some or all of their workforce. The trend already spurred employment lawsuits throughout the nation, and many expect more to follow – particularly when employees start returning to the workplace.  

Recent Covid-19 Labor and Employment Litigation Trends:

The Covid-19 pandemic, and the recommendations issued by the government regulatory agencies concerning flattening the curve, etc. created unprecedented situations for California’s workforce. These unusual situations are leading to recognizable trends in the courts.

WARN and Mini-WARN Litigation:

According to the federal WARN Act, in certain circumstances, employers with 100 or more employees are required to provide at least 60 days’ notice before implementing a mass layoff of closing down. Failing to provide the required notice can result in employees seeking back pay and penalties. According to the mini-WARN act enacted in California, a mass layoff is defined as laying off at least 50 employees within 30 days or the closing/relocation of a commercial/industrial facility with 75 or more employees.

Wrongful Termination:

California employers facing uncertainty about the economy are letting employees go, and some of these employees are responding by filing wrongful termination lawsuits. As the pandemic drags on, more wrongful termination lawsuits are filed. For instance, workers terminated after requesting to work from home in compliance with local recommendations and stay home orders are filing wrongful termination lawsuits. In this situation, workers may allege that the employer’s refusal to allow telecommuting violates state policy and attempts to require the employee to act criminally by reporting to work against local orders. When the employee refuses to comply with the employer’s request to go against local orders, and the employer fires them, the employee claims they were terminated for refusing to break the law at the request of their employer. Other employees claim they were fired for complaining about the lack of proper safety equipment, for advising co-workers that they were not being provided with adequate safety equipment, or for being uncomfortable (and vocal about it) when co-workers reported to work with Covid-19 symptoms.

Discrimination and Harassment Claims:

Some employees are filing discrimination claims questioning why they were selected for adverse employment actions like layoffs, cut hours, termination, etc. Some employees claim discrimination based on age, pregnancy, gender, etc. More discrimination lawsuits are expected to arise from the Covid-19 pandemic when employers start to require employees to return to work.

If you need to discuss how to file a 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.

Gender Discrimination Allegations at Westside LA Ad Agency

Joe Fotheringham, former creative director for an LA ad agency, sued his prior employer. Fotheringham alleges that the ad agency terminated his employment because he protested two male supervisors’ preference for hiring females rather than hiring the candidate best qualified for the open position regardless of gender.

Plaintiff Alleges Gender Discrimination in Hiring Process:

Fotheringham claims that two of his former supervisors, Marc Simmons and Jon Haber, alongside Giant Spoon ad agency, violated employment law. Fotheringham alleges wrongful termination, gender discrimination, hostile work environment, intentional infliction of emotional distress, and workplace retaliation. According to the Plaintiff, his supervisors, Simmons and Haber, pressured him to hire women whether they were qualified for the job or not. He was advised to hire some of the best talent after they got some women in the door.

The Plaintiff’s History with the Company:

The Plaintiff, Fotheringham, started working at Giant Spoon ad agency in March 2017. He was hired as the creative director at a point in time when the ad agency did not have a creative team. He was responsible for leading the agency’s efforts in hiring staff for both the Los Angeles and New York City offices. According to the lawsuit, he was also responsible for leading client work and building work from concept to production. In the summer of 2018, Fotheringham hired a male freelance worker. He was qualified for the position, but Fotheringham’s supervisors were not happy that the new freelancer was male and told the Plaintiff to find someone else – a woman.  

The Plaintiff’s Promotion Was Blocked Due to His Gender:

At one point during his employment, Fotheringham sought promotion at the agency, but he was denied the position. He was qualified for the promotion, but when he was denied the opportunity, he was allegedly told that the company needed a woman for the job. A woman was eventually hired for the job the Plaintiff sought, and he was ultimately terminated from his position allegedly without cause.

If you have questions about how to identify wrongful termination or if you need to file a California gender 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.

Carter’s Facing California Class Action After Alleged Employment Law Violations

Carter’s Retail, Inc. faces multiple employment law allegations. The plaintiffs filed the California class-action lawsuit in Orange County Superior Court, and the suit is currently pending.

Carter’s Allegedly Violated Employment Law:

Plaintiffs allege that Carter’s Retail, Inc. violated employment law by failing to provide accurate wage statements and failing to provide required meal breaks and rest periods.

Plaintiff Claims Carter’s Did Not Pay for All Hours Worked:

In the case, the plaintiff alleges that Carter’s Retail, Inc. failed to provide accurate pay for all the hours they worked or were “under the Defendant’s control.” The inaccurate calculation of wages for overtime worked is a direct violation of both federal and state employment law. Carter’s Retail, Inc. allegedly failed to conduct accurate wage calculations to unlawfully and unilaterally avoid paying employees overtime compensation they earned. According to labor law, employers must pay employees an overtime wage that is one-and-a-half times their “regular rate of pay” when they work overtime hours. Overtime hours are defined as being more than 8 in one day or more than 40 in one workweek.

Off the Clock Work Allegations Included in Overtime Class Action:

On top of allegations that the company purposefully avoided paying overtime to their employees, the plaintiffs allege that Carter’s Retails, Inc. required them to work “off the clock” or when they were clocked out. The “off the clock work” allegedly occurred during the plaintiff’s off-duty meal break. According to allegations made in the class-action lawsuit, the Defendant also occasionally failed to provide employees with their second meal period – meaning that the employees were required to work 10 hours without the accurate pay or meal breaks. The Industrial Welfare Commission (IWC) Wage Order requires employers to pay employees for all time worked.

What is the Industrial Welfare Commission (IWC) Wage Order?

The Industrial Welfare Commission (IWC) was created to monitor and regulate wages, hours, and California working conditions. California employers are required to post IWC wage orders in accessible areas frequented regularly by employees so that all employees have easy access to the information and can easily read it during their workday.

If you need to talk to someone about violations in the workplace 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.

Lululemon Allegedly Failed to Pay Accurate Overtime to California Employees

Lululemon USA Inc. is facing overtime allegations. The California overtime lawsuit claims that the company violated the PAGA (Private Attorney General Act) when they failed to calculate and pay their employees overtime wages accurately. The suit is pending in Los Angeles Superior Court.  

Lululemon Faces Numerous Employment Law Allegations

In the LA overtime lawsuit, Lululemon faces allegations from the plaintiff and other aggrieved employees that they did not receive payment for all hours worked, including overtime hours. The plaintiffs also claim that the company failed to keep accurate records, provide required meal and rest periods, and provide suitable seating for employees (when the nature of their work reasonably permitted sitting).

The Lululemon Lawsuit Includes Multiple Labor Law Violations

In the California lawsuit, plaintiffs made several severe allegations of employment law violations, including:

Violation of applicable sections of California Labor Code and the requirements of the applicable Industrial Welfare Commission (IWC) Wage Order due to a company policy, practice or procedure that allegedly failed to provide aggrieved employees with seating when their job duties reasonably permitted sitting while working.

• Failure to pay overtime

• Failure to pay for all hours worked

• Failure to keep accurate wage and hour records

• Failure to provide required meal breaks

• Failure to provide required rest periods

What is the PAGA or Private Attorney General Act?

In addition to bringing individual claims, plaintiffs can sue under PAGA for alleged employment law violations. The Private Attorney General Act (PAGA) is a California statute enabling workers to file suit against their employees for labor law violations. Using PAGA, California workers can act as private attorneys general and seek civil penalties as if they were a state agency. The statute was designed to allow citizens to be deputized to enforce labor code and was created in response to California state’s limited resources. Under PAGA, employees can step into state regulators' shoes to seek civil penalties and receive a portion of the amount they recover as compensation. Civil penalties recovered under PAGA are split, with 25% going to employees and 75% going to California.                                        

If you need to talk to someone about overtime violations or if you need to file a California 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.

Unemployed Workers Flock to Gig Jobs During Covid-19 Pandemic

As more furloughed California workers turn to gig jobs to generate income during the Covid-19 pandemic, experts worry that they aren’t aware of the dangers they face. 

Hundreds of Thousands of Gig Jobs Become Available During Pandemic:

With workers in many industries struggling to find even minimal part-time work due to the Covid-19 pandemic, more than 38 million people have filed for unemployment nationwide in the last few months. At the same time, hundreds of thousands of gig jobs are opening up due to changes in how consumers behave during stay home orders and shelter in place orders. Amazon, DoorDash, Instacart, and Shipt all experienced significant increases in usage that resulted in a hiring frenzy.   

Furloughed Workers Rush Toward Gig Jobs During Covid-19 Pandemic: 

Many workers who have been laid off, furloughed, or can’t work from home are rushing toward the jobs available in the gig industry. The promise of flexible hours and an immediate, flexible income draws many to jobs that have been facing significant kickback due to alleged employment law violations. Instacart was founded in 2012, but in the last two months, they have doubled their workforce. Target’s Shipt delivery services doubled its fleet size in the last two months (after six years in business). 

What If Gig Jobs Stick Around After the Pandemic? 

If consumer demand for home delivery stays strong after the pandemic, the significant influx of new gig workers could become the new norm. More American workers could face the same inequities that were exposed by the virus (lack of employee rights affording workers sick leave, health care, etc.) Gig work offers few worker protections (even during good times), but the coronavirus increases the stakes. Workers are classified as independent contractors, allowing on-demand companies to shift much of the risk of the services they provide to their workforce. Workers provide their own vehicles, their own gas, take-home pay is volatile, and there is no minimum wage or overtime pay. 

If you have questions about California labor law violations or how employment law applies to California’s gig economy, 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.

ERISA Lawsuit Argues Pharmaceutical Company Ignored Outrageous 401(k) Fees

In a recent ERISA lawsuit, plan fiduciaries allegedly failed to use the lowest cost share class for several mutual funds in a plan. They did not consider investment vehicles available at lower-costs. The plaintiffs claim the Pharmaceutical Product Development LLC Retirement Savings Plan fiduciaries have violated their fiduciary duties under the Employee Retirement Income Security Act (ERISA) since April 15, 2014.

Plan Fiduciaries Violated ERISA Failing to Use Lowest Cost Share Class:

Plaintiffs in the case claim that the plan fiduciaries failed to adequately (and objectively) review the plan investment portfolio to make sure that chosen investments were prudent both in terms of costs and maintenance of certain plan funds. This failure meant that ignoring other similar investment options that offered lower costs and better performance histories. Plaintiffs also allege that the fiduciaries failed to use the most economical cost share class for some mutual funds in the plan, and failed to contemplate collective trusts, separate accounts, or commingled accounts as options to the mutual funds (despite lower fees).

Plaintiffs Allege that Plan Fiduciaries Failed in Their Duties:

On average, 401(k) plans pay significantly lower fees than regular industry investors. This is true even as expense ratios for all continued to drop over the last several years. Additionally, the plan in question holds over $700 million in assets. The $700 million was managed since December 31, 2018, and the plan should have the ability to negotiate lower fees and invest in specific vehicles that require investment/balance minimums. The lawsuit documentation claims the plan funds have remained mostly unchanged through the past six years. As of 2018, plaintiffs were able to show data comparisons indicating over 60% of the plan funds were significantly more expensive than comparable funds in plans of a similar size.

Fulfilling a Fiduciary Responsibility for Retirement Plan Participants:

Plaintiffs argue that a prudent retirement plan fiduciary searches for and chooses the lowest-priced share class available. In this case, the plaintiffs’ fiduciaries failed to monitor the plan prudently and pinpoint whether or not it was invested in the lowest cost share class possible for the plan’s mutual funds. The plaintiffs also offered data illustrating how much more expensive the funds were in comparison to their similar situated options. Using more expensive share classes does not benefit plan participants in any way since the high-cost share classes did not provide any additional benefits or services. They did come with a consequence for plan participants, though.  

If you need to discuss violations of fiduciary duty or would like to talk about filing an ERISA class action, 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.

Employers Forcing Staff Back to Work During the Coronavirus Outbreak

Many California workers are asking the same questions right now, can your employer force you to return to work during the coronavirus outbreak? Some employees refuse to return to the workplace because they do not want to risk spreading the novel coronavirus. 

California-based Hairstylist Who Refuses to Return to Work Amid Outbreak:

Michelle Sylvester is a California hairstylist who says that a significant portion of her clients are older. While the salon where she works is still open for business, she is not returning to work until health agencies announce that the Covid-19 crisis is over. She doesn’t feel comfortable putting her life in danger or the lives of her clients in jeopardy over a few dollars. Since Sylvester is an independent contractor, she is not at risk of losing her job if she doesn’t show up for work. But many Californians can’t say the same.

Workers Wonder About their Rights During the Novel Coronavirus Outbreak:

As the coronavirus pandemic spreads, workers are wondering about their rights. What rights do workers have if their superiors on the job request (or demand) their return to the workplace. With some legislative leaders more worried about the economy than personal safety of California’s people, it has become a very relevant and pressing question, can you boss make you return to your desk job during a pandemic?

Can Your Boss Make You Go Back to Work During a Pandemic?

While experts say the answer to this particular question is no, the law isn’t entirely black and white. Whether or not your boss can force you to return to work may depend on the type of job you have. If your job position is defined by the local government in your area as “essential,” you may need to comply with your employer’s request to return to work or risk your job. California workers performing essential jobs like pharmacists or police officers or sanitation workers, etc. can be told to return to work. If they do not respond as requested, their actions may be defined as insubordination, or even considered “quitting” their job.  

Who Determines Whether Your Job is Essential Or Not?

Federal guidelines leave it to the state and local authorities to define which businesses are essential in a time of crisis. In most cases, the following workers would be considered essential: grocery store workers, medical staff, law enforcement, food laborers, utilities and transportation workers, government workers, emergency personnel, first responders, etc.

What Protections Are in Place for California Workers?

Unless there is a local mandate requiring that you show up to work during the coronavirus pandemic, employees are most likely within their legal rights to stay home (particularly if they are near a hot zone). The Occupational Safety and Health Administration includes a “General Duty Clause,” requiring that employers provide hazard-free work environments. (Hazard being defined as anything likely to cause death or severe injury to workers). Covid-19 counts as something “likely to cause death or severe injury.

If you need to discuss employment law violations in the wake 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.