Covid-19 Employment Requirements to Limit Exposure in the Workplace

In late 2020, Emergency Temporary Standards were issued for California workplaces by Cal/OSHA. The new standards put dramatic requirements in place for training, testing, and record keeping. 

2020 Standards to Minimize Covid-19 Exposure in the Workplace:

While the dramatic new Cal/OSHA issued Emergency Temporary Standards imposed requirements in various areas, the most controversial new requirement employers faced was to “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits.” This stipulation applied to employees excluded from their own workplace under ETS regulations. The requirement did not apply in situations where the employee was unable to work due to other reasons (including hospitalization) or if the Covid-19 exposure was not connected to the workplace (and the employer could prove it wasn’t). Since requirements also existed that required any close contacts (even if they were asymptomatic) to exclude themselves from the workplace for at least 10 days (even if they received a negative Covid-19 test), the new requirement placed a significant burden on California employers. 

Just as Federal Covid-19 Paid Leave Requirements Expired at the End of 2020

These new Cal/OSHA requirements were issued just as federal Covid-19 paid leave requirements expired at the end of 2020 inspiring numerous business groups to challenge portions of the ETS. One of several similar lawsuits was filed in San Francisco. After briefing from the parties in the case, the judge’s order denied a motion to preliminarily enjoin portions of the ETS. 

Judge Denies Early Challenge to Cal/OSHA Standard Extending Covid-19 Pay Requirements

When denying the early challenge to the new standards issued by Cal/OSHA that extended Covid-19 pay requirements, the judge cited numerous arguments in support of his decision: 

• the Plaintiff filed to show a likelihood of prevailing on the merits of their claims

• the balance of interim harms 

• the public interest in stopping the spread of Covid-19

• protecting employee health

• protecting community health

The judge on the case cited the above indicating that combined, they weigh heavily in favor of the ETS regulation’s continuance of Covid-19 pay protections, and other requirements to respond to the dangers presented by the pandemic. The judge specifically noted that with the exception of religious services (that have unique constitutional considerations), not one court in the entire nation has blocked emergency public health orders designed to stop the spread of the virus (and the illness, and death associated with it). The judge showed no indication that he wanted to be the first to do so. While this denial does not end the case, the judge’s ruling means that ETS regulations are in force as litigation progresses. 

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 various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Lawsuit Filed Against Mountain F. Enterprises, Inc. Alleging Failure to Pay Accurate Wages

Mountain F. Enterprises, Inc. faces allegations in a recently filed lawsuit that they failed to provide their employees with accurate wages.

Details of the Case: Matthew Place vs. Mountain F. Enterprises, Inc.

Court: Sacramento County Superior Court

Case No.: 34-2021-00294802

The Allegations in the Case: Matthew Place vs. Mountain F. Enterprises, Inc.

The plaintiff in the case, Matthew Place, alleges Mountain F. Enterprises, Inc. violated the California Labor Code by failing to compensate their employees for missed meal and rest breaks, as well as allegedly failing to reimburse employees for necessary business expenses. Failing to fulfill these employment law requirements means failing to provide accurate wages to employees.

According to the Lawsuit: Matthew Place vs. Mountain F. Enterprises, Inc.

According to the allegations, the Defendant, Mountain F. Enterprises, Inc. violated labor law multiple times, including:

• Failing to Pay Minimum Wage

• Failing to Pay Overtime Pay

• Failing to Provide Legally Mandated Meal Breaks

• Failing to Provide Legally Mandated Rest Periods

• Failing to Provide Accurate Itemized Wage Statements

• Failing to Reimburse Employees for Necessary Business Expenses

• Failing to Provide Wages when Due

Alleged Behavior Would Violate Various Sections of California Labor Code:

If the allegations made in the lawsuit are correct, the Defendant is in violation of numerous Labor Codes.

• §201

• §202

• §203

• §226

• §226.7

• §510

• §512

• §1194

• §1197

• §1197.1

• §2802

• applicable Wage Order

Violations of labor code can result in civil penalties.

Alleged Violation of California Labor Code Section 226:

According to California Labor Code § 226, “...every employer shall furnish each of his or her employees with an accurate itemized wage statement in writing showing...the corresponding amount of time worked at each hourly rate." According to the lawsuit, the Defendant allegedly failed to provide employees with accurate itemized wage statements allowing workers to pinpoint their gross wages and net wages earned. This alleged behavior constitutes a violation of California Labor Code § 226.

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 various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Judge Denies Disney’s Request to Have Harassment Lawsuit Tossed

In March 2021, a Los Angeles judge declined Disney’s request to toss the lawsuit against the studio alleging sexual harassment on the “Criminal Minds” set where the popular CBS series is filmed.

Details of the Case: Department of Fair Employment and Housing v. The Walt Disney Co. et al.

Court: Superior Court of the State of California, County of Los Angeles

Case No.: 20STCV19182

Disney Faces Harassment Lawsuit:

The suit, filed by the California Department of Fair Employment and Housing alleged both sexual harassment and assault. The judge that dismissed Disney’s request to toss the lawsuit did so because he didn’t find questions regarding putative class size appropriate at the demurrer stage.

Judge Declines to Dismiss the Complaint Targeting Disney & ABC Signature Studios, Inc.:

At an afternoon hearing, Judge Daniel J. Buckley of the Los Angeles Superior Court declined to dismiss the harassment complaint lodged against ABC Signature Studios Inc., and Disney. A few of ABC’s Criminal Minds TV show execs, and the Director of Photography for the popular crime show, Gregory St. Johns, were specifically accused of harassment throughout the course of the show’s time on air. The lawsuit alleges widespread sexual harassment.

The Defendant’s Argument to Dismiss the Complaint:

The Defendant argued that the state department did not plead a determinable class with definable common issues of law or fact, and that the loose class definition presented by the agency was too all-inclusive reaching to anyone who worked on the show. According to the defendant, this would balloon to include more than 10,000 people. Based on these arguments, the defendant claimed that many of those who would be “included” according to the presented class definition never encountered St. Johns, so they couldn’t be a potential victim in the case.

The Judge’s Decision: No Dismissal, but No Definitive Call on the Class Definition:

While Judge Buckley declined to dismiss at this point, there was no definitive decision from the court regarding the argument presented by the defendant other than the question didn’t apply at that particular stage in the proceedings.

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 various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Could New Law Ban NDAs Preventing Workers from Speaking Up About Discrimination & Abuse?

A proposed California law seeks to ban NDAs that prohibit California workers from speaking up about workplace discrimination and other forms of workplace abuse. 

Empowering California Workers to Speak Up About Alleged Workplace Discrimination: 

A bill introduced by a California state legislator could empower California employees who witness alleged discrimination in the workplace to speak up. The bill would ban specific provisions that are currently included in many confidentiality agreements or NDAs.  

California State Senator Backed Legislation Designed to Empower Workers:

The California State Senator behind the push for the proposed legislation was State Sen. Connie Leyva. The proposed legislation would ban non-disclosure agreements in cases of alleged workplace discrimination and harassment. Backers of the proposed legislation believe it could prevent California workers from having to sign settlements in a significant portion of workplace discrimination and abuse cases. The bill is being called the Silenced No More Act and is co-sponsored by Equal Rights Advocates and the California Employment Lawyers Association. 

Silencing a California Worker Because They’re a Victim is Unacceptable: 

SB 331 is intended to give California workers victimized in the workplace a voice. Silencing a worker because they are victimized in the workplace for any reason is not acceptable, and advocates of the Silenced No More Act are willing to push for change. Supporters believe the proposed legislation could create opportunities to help perpetrators responsible and prevent future instances of abuse in California workplaces. 

Proposed SB 331 Legislation Builds on #MeToo Era: 

The proposed SB 331 builds on existing California law known as the STAND Act, passed in 2018 at the peak of the #MeToo movement. The STAND Act bans agreements that block workers from speaking up about sexual harassment and abuse in the workplace. Advocates of the new legislation argue that many NDAs protect perpetrators from taking responsibility for their actions and encourage future incidents by keeping alleged harassment and discrimination under wraps. NDAs tend to prevent workers from speaking up about abuse in their workplace. Also, the Silenced No More Act would allow California workers to speak out about other discriminatory claims, such as gender discrimination, racial discrimination, etc. The proposed legislation would also provide some protection for California workers being asked to sign NDAs as a condition to receive a severance package. 

If you need to discuss California labor law violations in the workplace or if you need to file a California workplace 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.

California Supreme Court Considers Question About Workplace Retaliation

"Does the evidentiary standard outlined in Section 1102.6 of the California Labor Code replace McDonnell Douglas test as the relevant evidentiary standard for retaliation claims brought under Section 1102.5 of California's Labor Code?" When the Ninth Circuit court certified this question to the Supreme Court of California, they opened up new possibilities that could make disposing of whistleblower retaliation claims more difficult. 

All the Details of the Case: Lawson v. PPG Architectural Finishes, Inc.

Case No.: No. 19-55802

Court:  United States District Court, 9th Cir. 2020

Is the California Supreme Court About to Make Disposing of Whistleblower Retaliation Claims More Difficult? 

Many wonder if the California Supreme Court is about to make disposing of whistleblower retaliation claims more difficult. And they could be right. The Supreme Court did agree to answer the Ninth Circuit Court of Appeals' question regarding California law and unlawful retaliation against employees as alleged in Lawson v. PPG Architectural Finishes, Inc. 

Setting the Evidentiary Standard: Lawson v. PPG Architectural Finishes, Inc. 

The 9th Circuit's request for the California Supreme Court to answer this particular question could result in new evidentiary standards for whistleblower retaliation claims brought under California Labor Code Section 1102.5. In the Lawson case, Mr. Lawson worked as a territory manager with duties involving merchandising products to retail outlets and stocking company displays. Mr. Lawson's supervisor allegedly asked him to manage a product in a way that would fraudulently remove the slow-selling product from inventory. Mr. Lawson refused to carry out the fraudulent task and reported the situation to his employer's ethics hotline - twice. 

The Company's Response to Lawson's Report Regarding Unethical Behavior: 

The second time Lawson reported the situation to the company's ethics hotline, there was an investigation. Simultaneously, Mr. Lawson received poor performance ratings, was issued a performance improvement plan, and then terminated. Mr. Lawson claims that he was retaliated against as a whistleblower. 

What is the McDonnell Douglas Test? 

The trial applied the McDonnell Douglas test in the Lawson case. The McDonnell Douglas test employs burden-shifting between the plaintiff and the defendant in employment law cases. The test originated in connection with Title VII (the federal statute that governs discrimination, harassment, and retaliation in the workplace). After using the McDonnell Douglas test to determine that the plaintiff failed to fulfill his burden to present facts that show retaliatory behavior and a causal relationship between the behavior and the adverse employment action, the trial court granted the employer's motion for summary judgment. 

Appealing to the Ninth Circuit Court: Lawson v. PPG Architectural Finishes, Inc.

In his appeal to the Ninth Circuit Court, Lawson argued that the trial court should have applied the evidentiary standard outlined in California Labor Code 1102.6. It states that once a preponderance of evidence demonstrates whistleblower activity was a contributing factor in retaliatory action against an employee, the burden of proof is on the employer to show alleged actions were taken for legitimate, non-retaliatory reasons. In requesting the California Supreme Court consider the question, the Ninth Circuit Court pointed out three published California appellate court decisions that applied McDonnell Douglas after the amendment. This presents a contradiction between California statute and the state's court rulings. 

If you need to discuss California state labor laws or if you need to file a California workplace retaliation lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

United Airlines California Workers File Suit Due to Wage Statement Violations

Many workers, particularly those who work in the transportation industry, must travel for their job. For example, airline employees often travel and work for their employer in various states. What happens when one state’s employment laws are far more burdensome than the rest? 

The Details of the Case: Ward v. United Airlines, Inc. 

Case No. 16-16415 (9th Cir., Feb. 2, 2021)

United Airlines Granted Summary Judgement by District Court: 

After the District Court granted summary judgment to United Airlines for two consolidated actions brought by certified classes of United pilots and flight attendants that live in California, the Ninth Circuit reversed the summary judgment. The pilots and flight attendants allege that their wage statements from United Airlines violate California Labor Code 226.

Does California Labor Code 226 Apply? 

The panel put the question before the California Supreme Court: does California Labor Code 226 apply? After considering the facts of the cases, the California Supreme Court held that California Labor Code 226 applies if the “employee’s principal place of work is in California.” The California Supreme Court set forth the “Ward test” as a set of principles to define Section 226’s permissible reach. 

Applying Section 226 Under the Ward Test: 

According to the Ward test, Section 226 didn’t fall into either of the “invalid” categories. The panel also did not find merit in the Defendant’s argument that applying the Ward test directly regulates interstate commerce. The panel also rejected United Airlines’ argument that applying Section 226 to plaintiffs under the Ward test violated the dormant Commerce Clause. Instead, the panel held that the Airline Deregulation Act of 1978 and the Railway Labor Act did not preempt the application of Section 226. 

Did United Airlines Comply with Section 226? 

While the California Supreme Court decided Section 226 applied in this case, they did not determine whether United Airlines complied with Section 226. The case was directed to district court to modify the class definitions, conform to the California Supreme Court’s definition of Section 226’s permissible reach, modify the class period in the Ward case to extend the date of judgment, determine if the Defendant complied with Section 226, and if not, determine what relief should be awarded to the Plaintiffs. 

In conclusion, transportation companies with employees based in California are bound by Section 226’s wage statement requirements unless they can prove that complying would pose a significant burden with substantial financial costs.

If you need help with employment law violations in the workplace, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP today. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

SpaceX Faces Hiring Discrimination Complaint

Elon Musk’s rocket company SpaceX is facing claims that their hiring practices are discriminatory against non-U.S. citizens. 

All the Details of the Case: United States of America v. Space Exploration Technologies Corp., d/b/a SpaceX

Court: United States District Court for the central district of California

Case No.: 2:21-mc00043

The U.S. Department of Justice is currently investigating SpaceX due to alleged company-wide discriminatory practices against non-U.S. citizens during the hiring process. The company was issued a subpoena for information, but court documents indicate that the company is not responding with the info. 

Alleged Discrimination During Hiring Process Based on Citizenship: 

The investigation started after the DOJ received an employment discrimination complaint from a non-U.S. citizen. The individual claimed that SpaceX discriminated against him due to his citizenship status. 

A Summary of the Case History: United States of America v. Space Exploration Technologies Corp., d/b/a SpaceX

It is alleged that in March 2020, during an interview for a Technology Strategy Associate position at SpaceX, the company asked questions about the applicant’s citizenship status. Ultimately, the applicant was not hired. The applicant claims the company chose not to hire him for the position because he is not a U.S. citizen or a lawful permanent resident. Plaintiff’s counsel filed a request for a judge to order SpaceX to comply with an administrative subpoena seeking hiring practice documentation. 

Allegations of Discrimination in the Hiring Process at SpaceX:

A non-U.S. citizen made the original allegation of discriminatory hiring practices. After interviewing for an open position at SpaceX, the applicant got in touch with the DOJ’s Employee Rights Section to complain about SpaceX’s hiring practices. The applicant alleges that he was not hired for the open SpaceX position because he was not a U.S. citizen. 

In response to the complaint, the DOJ started an investigation.  

Is the DOJ’s Request for Supporting Documentation Burdensome? 

According to the DOJ, they notified SpaceX of the open investigation on June 8, 2020, and requested the company provide information related to the standard hiring and employment eligibility verification process currently in use. Court documents indicate that SpaceX responded in August 2020, providing a Form I-9 spreadsheet with info about employees dating back through June 2019, but refused the DOJ’s requests for additional documentation like copies of SpaceX employees’ social security cards, driver’s licenses, and passports. They obtained a subpoena on October 7, 2020. After a petition to the DOJ administrative tribunal to dismiss the subpoena was denied, SpaceX was again ordered to comply. On December 11, 2020, SpaceX responded, stating that they would not provide additional documentation in response to the administrative subpoena. The IER argues the additional documentation is necessary as it will show the extent of non-U.S. citizen hires at the company, while SpaceX claims it is a burdensome request since they would allegedly need to retrieve each document manually.                        

If you have questions regarding employment law and how it protects California employees from workplace retaliation, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.