Key 2021 California Employment Law Case: Grande v. Eisenhower Medical Center

Activity in California courts in 2020 was fairly quiet, but there are several potentially significant cases coming to the California Supreme Court in 2021 that could have a significant impact on California’s employers and employees. 

Grande v. Eisenhower Medical Center: Scheduled to Appear before California Supreme Court in 2021

Case Info: Grande v. Eisenhower Medical Center, Nos. E068730, E068751

In 2021, Grande v. Eisenhower Medical Center is scheduled to appear before the California Supreme Court. The case addresses the question of whether an employee’s settlement agreement with a staffing agency on a wage and hour claim precludes the same employee from suing the staffing agency’s client, for whom the employee provided services, citing the exact same wage and hour claims. 

The Plaintiff, Grande, Claims Eisenhower Medical Center Violated California Labor Law: 

FlexCare, LLC (FlexCare) is a temporary staffing agency. According to the plaintiff in the case, FlexCare provided an assignment for Grande to work as a nurse at Eisenhower Medical Center (Eisenhower). The Plaintiff claims Eisenhower did not provide her with the required meal and rest periods, wages for hours worked, and overtime wages according to California labor law. Grande, the plaintiff in the case, filed a class action lawsuit. The class action was filed on behalf of FlexCare employees assigned to various positions at numerous California hospitals. The Plaintiff’s claims were based on her work on assignment at Eisenhower, and FlexCare settled with the class. A release of claims was executed by The Plaintiff. The trial court entered a judgment incorporating the settlement agreement. A year later, Grande filed a second class action lawsuit alleging the same labor law violations. Grande filed the second class action lawsuit against Eisenhower, who was not listed in the prior class action. 

Can Grande File a Second Class Action Against a Different Defendant Citing the Same Labor Law Violations? 

FlexCare argued that the Plaintiff could not bring a separate lawsuit against Eisenhower based on claims settled in the prior class action. During a trial limited to questions of whether or not the Plaintiff could file the second class action, the trial court held that Eisenhower was not a released party under the settlement agreement, so the doctrine of res judicata did not apply since the hospital was not a party to the prior litigation or in privity with the staffing agency, FlexCare. The Court of Appeals agreed. 

The California Supreme Court’s Decision on Grande v. Eisenhower Medical Center:

California employers and employees should watch the Grande v. Eisenhower Medical Center case since the California Supreme Court’s decision could affect staffing agencies and how they approach settlement of claims when their clients are not also named as Defendants in the case. The issue could have a notable impact for California staffing agencies as duplicative litigation could mean they have to pay settlement costs twice due to indemnity clauses. 

If you have questions about California labor law violations or how employment law protects you against labor 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.

Key 2021 California Employment Law Case: Donohue v. AMN Services, LLC

Throughout 2020, the California courts were fairly quiet. However, there are a few significant employment law cases scheduled to appear before the California Supreme Court in 2021. 

Donohue v. AMN Services, LLC: Scheduled to Appear before California Supreme Court in 2021

Case Info: #19-31 Donohue v. AMN Services, LLC, S253677. (D071865; 29 Cal.App.5th 1968; San Diego County Superior Court; 37-2014-00012605-CU-OE-CTL.) 

In 2021, Donohue v. AMN Services, LLC will appear before the California Supreme Court. The case addresses the question of whether employers can use overtime pay practices and policies to round employees’ time to shorten or delay meal periods?

The Plaintiff, Donohue, Claims AMN Violated California Labor Law: 

According to the lawsuit, AMN Services (AMN) used a computer-based system. According to the plaintiff, employees clicked on an icon to open the program each day so they could clock in and out for the start of their shift, their meal periods, and the end of their shift. According to the suit, the employee’s on the clock time (recorded in 10 minute increments) was rounded to the nearest hundredth. The Plaintiff claims there were no predetermined meal and rest  breaks, but that there was a written AMN policy that workers were to take their meal and rest breaks as mandated under California law. The plaintiff claims that AMN’s timekeeping program had a drop-down question allowing employees to indicate why they did not record a mandatory meal period, and that if they indicated they voluntarily chose not to take their 30 minute meal period, no penalty payment was provided. 

Did AMN Violate Labor Law? 

When the trial court considered the issue presented in Donohue v. AMN Services, LLC, they found no evidence of a uniform policy to deny employee meal periods. In the original complaint, the Plaintiff did not claim that AMN’s rounding practice was a labor law violation resulting in denial of employee meal periods. On appeal, the Plaintiff argued that the rounding of employee hours should not be applied to meal period time punches. The Court of Appeals argued that the California standard based on past court decisions about rounding does apply to meal periods, so the court would only need to consider how frequently the company’s rounding policy resulted in rounding up and down, rather than the number of meal period violations assessed (or circumvented). 

The California Supreme Court’s Decision on Donohue v. AMN Services, LLC

When Donohue v. AMN Services, LLC comes before the California Supreme Court in 2021, their decision could have a significant impact on related cases throughout the state. If the court agrees with the Court of Appeals the California Supreme Court decision would lend further support to the argument that rounding policies are typically acceptable for California employers. The California Supreme Court’s decision, regardless of which argument they support, will provide additional guidance on how California employers should implement any timekeeping rounding policies (including rounding policies for employee meal periods and breaks). 

If you have questions about California labor law violations or how employment law protects you against labor 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.

Sticker Mule, Popular Sticker and Merchandising Company, Faces Overtime Lawsuit

Tierra Bonefort, former Sticker Mule LLC and Print Bear LLC employee, filed a federal overtime lawsuit alleging the sticker-making companies violated labor law when they failed to pay overtime wages.

California Sticker Mule Employee Files Suit and Seeks Class Action Status:

Bonefort’s lawsuit was filed in the U.S. District Court for the Northern District of New York on October 5th. Bonefort’s suit seeks back pay, attorneys fees, and class action status. If class action status is granted, the lawsuit would allow approximately 40 other former and current Sticker Mule and Print Bear employees and workers to join the suit.

Allegations Included in the Overtime Lawsuit:

Bonefort alleges that Sticker Mule and Print Bear (mutually owned sticker making companies) did not pay appropriate overtime wages in accordance with the law (both federal and state labor law) from Sept. 12, 2018 through Jan. 31, 2020. During this time period, Bonefort often worked more than 40 hours per week at the two companies located at 49 Elk Street and 336 Forest Avenue respectively. Allegedly the companies have three shifts for workers and they offer a pay differential for late/overnight work shifts. However, they do not include the pay increase for late/overnight shifts when they calculate overtime pay rates.

In Addition to Miscalculating Overtime Pay, Defendant Failed to Issue Accurate Pay Statements

According to the lawsuit, the Defendant did not provide their employees with accurate wage statements as required by law. By law, wage statements were required to include the employer’s phone number, and the base rate for the employee’s pay. Class members allegedly did not receive pay statements with the required information. The number of overtime hours Bonefort worked during the time period in question is not listed in the lawsuit. However, the plaintiff does require class certification and to notify other potential litigants of their right to join the class.

If you need to talk about employment law violations, or if you need to file a California overtime 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.

California HUB Employee Sues for Discrimination Amidst Covid-19 Lockdown

Drisana Wallace is a former insurance account executive for HUB International Insurance Services Inc.. HUB International Insurance Services Inc. employs more than 10,000 employees in over 375 offices across the nation and into Canada. Wallace was employed at one of HUB’s California locations. Wallace filed a lawsuit after she was allegedly fired from her job in retaliation after she complained about her supervisor’s discriminatory behavior regarding her working from home to care for her two children during the Covid-19 pandemic.

Former Insurance Account Executive Files a Discrimination Lawsuit:

Wallace filed suit in the Superior Court of California in San Diego, California. The lawsuit alleges discrimination, retaliaiton, gender harassment, and wrongful termination. Wallace listed HUB International Insurance Services Inc. as the Defendant in the case. Wallace seeks damages from lost earnings and benefits plus emotional distress and loss of reputation.

The Plaintiff’s History with the Company:

Wallace worked at the San Diego HUB office from August 2019 through June 2020. She alleges that her supervisor (and executive vice president), Daniel Kabban, had a problem with her working from home and caring for her two children during the Covid-19 lockdown. Wallace was terminated after she complained about the discriminatory behavior she was experiencing from her supervisor.

Altered Work Circumstances In the Wake of the Covid-19 Pandemic Lockdown:

When the lockdown went into effect due to the Covid-19 pandemic, Wallace was unable to arrange childcare for her two children (aged 4 and 1 year old) due to the scarcity of available daycare and babysitting services during the lockdown. While Wallace was able to perform her job duties, it did take a toll on her children (one of whom was nursing at the time). While the plaintiff was working, her children were in front of the tv, which made Wallace feel guilty. She stopped working during her regular lunch break to feed her children and put her younger child down for a nap, and then returned to work. On most days, she didn’t have enough time to actually eat lunch - and was drinking coffee to get through the days. Wallace also frequently worked at night while her children were sleeping. Wallace felt that she and her children sacrificed to make it possible for her to keep her commitments to her employer. Wallace eventually contacted human resources to request help and was told HUB managers were expected to be flexible.

After Complaining to Human Resources, Plaintiff Got an Unexpected Result:  

The response received from human resources left Wallace under the impression that HUB would support her during the lockdown. However, Wallace’s supervisor, Kabban, seemed to be biased against mothers and began a litany of sexist statements, and insisting that she keep her children silent during phone calls, which was difficult since the phone calls occurred while the children were awake since Kabban consistently scheduled calls during lunch times when Wallace was feeding her children, nursing the baby and trying to make naptime happen. Kabban also increased the amount of rush tasks with immediate turnarounds he expected from Wallace, questioned her availability, and offered fathers working from home much better treatment.  After contacting the human resources department again to advise them of the continuing bias and sexism, Wallace was advised she was terminated due to reduced revenue during the Covid-19 pandemic.

If you need to discuss employment law violations in the workplace or file a 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. 

More California Professionals Working from Home in 2020: Deducting for Business Use of a California Residence

As more and more professionals work from home in 2020, California law firms, securities firms, banks, and other intellectual enterprises are carefully considering the application of IRS Code Sections governing deductible expenses related to qualified business uses of a home (Rev. Proc. 2013-13 (IRS RPR), 2013-6 I.R.B. 478, 2013 WL 161197, IRS Code 26 CFR 601.105).

IRS Revenue Procedure Released in 2013 Provided the Optional Safe Harbor Method: 

In 2013, the IRS released Revenue Procedure 26 CFR 601.105, which provided an optional Safe Harbor Method for taxpayers to use when determining the amount of deductible expenses related to the use of their home for qualified business purposes. Many California law firms, securities firms, banks, and other intellectual enterprises can turn to the Safe Harbor Method as an alternative to calculating, allocating, and substantiating actual expenses as required by § 280A of the Internal Revenue Code. The Safe Harbor Method is effective for any taxable year since 2013.

Safe Harbor Method Simplifies Business Use of Home Deductions for California’s Small Business Owners:

The calculation, allocation, and substantiation of any allowable deductions due to using a part of a residence for business purposes can be overly complicated and troublesome for California’s small business owners. The IRS and the Treasury Department are aware of the issue. The safe harbor method attempts to minimize recordkeeping, administrative, and compliance requirements used to determine allowable deductions under § 280A. Under the safe harbor method, California business owners can determine allowable deductions for business use of their residence by multiplying a predetermined rate (currently $5.00) by the amount of square footage dedicated to business use in their home (not to exceed 300 square feet).  

The Safe Harbor Method is an Alternative to Itemized Deductions for Business Use of a Residence:

The safe harbor method is a replacement of calculating actual expenses under § 280A. If a California small business owner elects a safe harbor deduction, they cannot deduct any actual business expenses due to qualified business use of their home in the same taxable year. Taxpayers using the safe harbor method to determine deductions must still comply with requirements outlined in § 280A regarding determining eligibility to claim a deduction.

Reimbursements & Other Expense Allowance Arrangements for Employees Working from Home:

The safe harbor method does not apply to employees working from a home office if they receive allowances, advances, or reimbursements for business expenses connected to the qualified business use of their home. Reimbursement is required under California Labor Code Section 2802, so California employees working from home should be cautious claiming safe harbor deductions if they have any expense allowance or reimbursement arrangement with their employer (as defined by  § 1.62-2).

More California Professionals Working from Home in 2020:

With more professionals working out of their homes for significant portions of 2020, both employees and employers must consider the financial implications.

If you have questions about California labor law and how employment law protects California workers working from home in 2020, Blumenthal Nordrehaug Bhowmik DeBlouw LLP wants to help. 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.

Are Workers Being Penalized for Reporting Covid-19 Safety Violations in the Workplace?

While many California employers and companies throughout the nation take the threat of Covid-19 seriously, and do their best to implement all safety recommendations from government agencies, there are some who dismiss the threat.

When Companies Fail to Comply with Safety Measures Recommended by Government Agencies:

When companies fail to respond to the threat by complying with safety recommendations suggested by government agencies (or complying with mandates from their local, state, or federal government), they put their employees and their customers at risk. However, some employers are doing just that. Employers choosing not to adhere to safety recommendations may refuse to provide necessary masks or other PPE to their employees, they may fail to allow employees to exercise social distancing, they may deny employee requests to work from home, etc.

Ultimatums to Return to Work During the Covid-19 Pandemic:

In some instances, employees that complained to their employer or to their employer’s Human Resources department about the failure to implement safety measures in their workplace met with resistance. In other cases, these employees experienced retaliation or even termination in response to their complaints. Some employees who requested telecommuting due to the dangers presented by the pandemic were told to return to work or resign.

Employees Fired for Refusing to Return to Unsafe Workplaces During Covid-19 File Suit

Many employees fired for refusing to put themselves and their families in danger by returning to unsafe workplaces in the midst of the Covid-19 pandemic are filing suit. Under California’s whistleblower law, and the Conscientious Employee Protection Act, employers are prohibited from firing, demoting, or retaliating against workers in any way due to a worker’s refusal to participate in activities that the employee believes are incompatible with safety mandates or public health.

More Employers Are Asking Employees to Return to Work:

As more employers start to encourage workers to return to the office, the number of employees resisting what they see as unsafe or unhealthy workplace conditions is growing. Employees facing adverse action due to this unprecedented scenario can turn to legal protections in place for whistleblowers. There are currently 23 federal whistleblower statutes in place to protect workers from retaliation if they report workplace safety violations. These statutes are enforced by the Occupational Safety and Health Administration, and the U.S. Department of Labor.

Covid-19 Related Lawsuits Are On the Rise:

Whistleblower complaints filed with the Occupational Safety and Health Administration increased by 30 percent between from February 2020 to May 2020. Almost 40% of the significantly increased complaints  were Covid-19 related - filed in most part by employees who allege they experienced adverse employment action after they reported workplace safety violations. It’s estimated that approximately 170 retaliation/whistleblower suits have been filed across the country; making retaliation/whistleblower lawsuits the 2nd largest category behind remote work/leave lawsuits. And more Covid-19 related suits have been filed claiming wrongful termination.

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

Court Erases Wrongful Termination Verdict, but Defamation Still Costs Allstate $4M

When Michael A. Tilkey pled guilty to disorderly conduct charges, Allstate Insurance Co. fired him from his job as a broker paying $200,000 per year. Tilkey’s resulting wrongful termination suit eventually reached the California appellate court where the court ruled Allstate was within their rights to fire Tilkey. However, this wasn’t the end of the story. 

Allstate’s Decision to Report the Reason for Tilkey’s Termination:

Upon firing Tilkey, Allstate reported that he was terminated due to reasons related to “domestic violence.” While the appellate court found in favor of the carrier in connection to the wrongful termination claims, they found in favor of the plaintiff regarding this announcement of the cause for termination qualifying as defamation. The 4th District Court of Appeal panel found the defamation deserving of an award totaling over $4 million in compensatory and punitive damages.

Jury’s Finding that Tilkey Was Wrongfully Terminated Reversed:

While the $4M defamation award is a stiff penalty, it could have been much worse for Allstate. The San Diego County jury that heard the case originally found in favor of Tilkey - finding that Tilkey was wrongfully terminated and awarding the plaintiff over $18.5M. The appellate court found merit in two of the six grounds Allstate listed in their appeal of the jury verdict, and after finding that Allstate was within their rights to fire Tilkey after he pled guilty to disorderly conduct charges, the appellate court slashed the $18.5M award from the jury significantly.

The Incident that Led to the Wrongful Termination & Defamation Case:

Tilkey was employed with Allstate for 30 years. In August 2014, he went out with his girlfriend and they had some drinks. Afterward, they went home and an argument began. Tilkey decided to leave, walked outside to the enclosed patio to get a cool he brought, and his girlfriend locked the patio door. Tilkey repeatedly banged on the glass patio door insisting she let him in so he could gather his things. The girlfriend responded by calling the police. When officers arrived on the scene, they noted the interior trim of the door frame was broken. When searching Tilkey’s travel bag, they discovered marijuana and a pipe. Tilkey was arrested on multiple charges including “criminal damage deface,” possession, and disorderly conduct/disruptive behavior. According to the opinion of the appellate panel, the “domestic violence” label was attached to the last misdemeanor.

Allstate’s Response to the Charges Against Tilkey:

Tilkey’s Allstate supervisors received emails from Tilkey’s ex-girlfriend that were flagged for review. Human Resources investigated the matter in December 2014, learned that Tilkey was arrested, and took a plea deal leading to the dismissal of two of the charges. HR reported to supervisors that Tilkey’s third charge would be dismissed once he completed a “domestic nonviolence diversion program” and that the incident did not include a violation of any company policies. After another email to the company from Tilkey’s ex-girlfriend, the Human Resources supervisor suggested a change made to the report, altering it to list that Tilkey was arrested on a “domestic violence” charge, and changing the report’s conclusion to state that Allstate had since “lost confidence” in Tilkey. Tilkey was terminated on May 27, 2015. The reason cited for Tilkey’s termination was, “the retention of the domestic violence charges suggests that Tilkey engaged in behavior that was construed as acts of physical harm or violence towards another person.” Allstate submitted a standard form regarding the termination to the Financial Industry Regulatory Authority (FINRA) which acts as a self-regulatory body for licensed insurance brokers. The standard form (Form U5) included the “reason” for Tilkey’s termination. In response, Tilkey filed suit alleging wrongful termination and defamation.

If you need to discuss employment law violations or have questions about how to file a California wrongful termination lawsuit, don't hesitate to contact 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.