Emergency Rule Setting Covid-19 Workplace Safety Parameters for Employers in the Health Care Sector

In June 2021 OSHA (Occupational Safety and Health Administration) issued an emergency rule setting workplace safety standards for healthcare sector employers applicable during the Covid-19 pandemic.

The announcement was made by Labor Secretary Marty Walsh and Jim Frederick, acting assistant secretary of labor for OSHA. The ETS (Emergency Temporary Standard) outlined what safety measures employers are required to employ for the protection of their healthcare workers. The ETS is effective on the date it is published in the Federal Register (as of the date of the announcement, it had not yet been published, and a publication date was still undetermined).

The Safety of Healthcare Workers:

Since health care workers, especially those who come into regular contact with the virus, are at the highest risk of contracting the virus, the ETS was employed to provide essential protections for workers. After thorough review of the available data and science behind the pandemic, OSHA determined a set of standards that would have the biggest impact for the safety of workers in the healthcare industry.

The Emergency Temporary Standard for Protecting Healthcare Workers:

The ETS exceeds 900 pages (not including explanatory materials made available by the Department of Labor). Some of the requirements put in place by the recently announced ETS include: :

• Maintain Social Distancing Protocols

• Properly Screen Patients for Virus Symptoms

• Give Healthcare Workers Paid Time Off to Receive Vaccinations

• Give Healthcare Workers Paid Time Off to Recover from Side Effects of Vaccinations

• Create a Virus Safety Plan Including Specific Elements (if employing 10+ employees, safety plan must be in writing)

• Screen Workers Prior to Shifts

• Provide Masks and Other PPE for Use in High-Risk Situations

• Ensure Masks are Worn Indoors

• Ensure Masks are Changed Daily

• Use Ventilation Procedures for Patients Who May Have the Virus

• Remove Any Employee Who Tests Positive for Covid-19 from the Workplace for Defined Periods of Time (if 10+ employees, and worker can’t operate remotely, employer must continue paying worker normal salary up to $1,400/week for the 1st two weeks of the absence)

• Remove Any Employee Who is Symptomatic or Suspected of Being Infected for Defined Periods of Time (if 10+ employees, and worker can’t operate remotely, employer must continue paying worker normal salary up to $1,400/week for the 1st two weeks of the absence)

• Additional Mandates Put in Place by the ETS:

The ETS also mandates that a fully vaccinated healthcare worker does not have to wear a mask or adhere to social distancing or masking requirements if they are in “well defined areas” where the employees present are vaccinated and no one who could potentially have the virus is reasonably expected to be in the same area.

Timeline for New Emergency Temporary Standard Compliance:

While employers will be required to comply with the Covid-19 ETS either within 2 weeks of its taking effect or a month (depending on the mandate), OSHA already said they would use “enforcement discretion” based on whether or not employers are making a good faith effort to comply, but missed the deadline. The DOL also stated they would update the ETS as needed.

If you have questions about workplace safety requirements or how the law protects you on the job, 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.

Mortgage Company Workers File Suit Regarding Out-Of-Office Pay

Workers for a California mortgage company, Guild Mortgage Co., filed putative class and collective actions against their employer claiming they were shortchanged pay for work they completed outside the office.

Details of the Case: Sergio Mayoral et al. v. Guild Mortgage Co. et al.

Court: U.S. District Court for the Southern District of California.

Case No.: 3:21-cv-00486

Mayoral et al. v. Guild Mortgage Co.: The Plaintiff

Sergio Mayoral and Miguel Mayoral, Loan Officer Assistants, allege that Guild Mortgage Co. denied them pay for over 20 hours of out-of-office work they completed weekly in order to secure new clients for the company. The plaintiffs claim the company’s failure to pay wages earned, and overtime wages constitutes a violation of wage and hour laws. Plaintiffs further claim that Guild Mortgage maintains a policy and standard practice of only paying assistants for work completed in the office, and doesn’t acknowledge or record work completed out of the office. Both plaintiffs worked for Guild Mortgage from April 2019 through January 2020. In order to generate business, the 2 men attended networking events, open houses, etc. and since these activities were outside of the office, the work was not allegedly not compensated.

Mayoral et al. v. Guild Mortgage Co.: The Defendant

According to the complaint, the Guild Mortgage Co. payment practice in place for Loan Officer Assistants means workers did not receive full wages for all the compensable hours worked, and in some cases, did not receive overtime pay they were due.

Mayoral et al. v. Guild Mortgage Co.: An Overview

The plaintiffs seek to represent other non exempt hourly originating loan officer assistants for Guild Mortgage locations throughout the US in an FLSA collective action. It’s estimated the class could be over 1,000 members.

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

Delta Argues for Rehearing of California Wage Violation Class Action

Delta Airlines argues that the full Ninth Circuit should rehear their appeal regarding a proposed California wage violation class action. Delta argues for the rehearing claiming that the panel misapplied federal law intended to stop state laws from creating an unreasonable burden on interstate commerce.

Details of the Case: Dev Oman et al. v. Delta Air Lines Inc.

Court: U.S. Court of Appeals for the Ninth Circuit

Case No.: 17-15124

Dev Oman et al. v. Delta Air Lines Inc.: The Plaintiff

The proposed class action was filed in 2015 by Dev Oman on behalf of flight attendants. Later Todd Eichmann, Flores and Lehr joined the lawsuit. Plaintiffs in the case claimed that Delta shorted their flight crew workers on pay and violated wage statement and timekeeping requirements as stated in employment law.

Dev Oman et al. v. Delta Air Lines Inc.: The Defendant

According to Delta, Michael Lehr, one of the flight attendants who brought the suit, spent 94% of time during one pay period working outside California. And another named flight attendant, Albert Flores, spent 94% of his time working outside of California. In this case, Delta questions whether applying California state employment law is an undue burden on interstate commerce and if permitting California to apply its laws beyond its borders violates the dormant commerce clause.

Dev Oman et al. v. Delta Air Lines Inc.: An Overview

In 2017,summary judgment was granted in favor of Delta by the district court. The district court’s findings were based on the statements regarding the flight attendant’s spending most of their work hours in federal airspace - not California, so it did not matter if Delta failed to comply with California wage statement requirements since they would be subject to federal law, not California law. The plaintiffs appealed. In June 2020, the California Supreme Court responded to questions from the Ninth Circuit regarding the case stating that workers were entitled to California wage and hour protections if California served as the base of their “work operations” (even if most of their time on the job was out of state). In February 2021, the panel ruled that the commerce clause did not bar California rules from applying, and in so doing, reversed the district court’s summary judgement in favor of the airlines. Delta petitioned for a rehearing in March 2021 arguing that the Ninth Circuit received bad guidance from the California Supreme Court.

If you need to discuss California state labor laws or if you need to file wage and hour claims, 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.

Former Dow Subsidiary to Pay $3.8M to Settle Proposed California Wage Class Action

A former Dow subsidiary, a spin off of Dow Chemical Co., agreed to pay $3.8 million to settle a proposed California wage class action. The proposed class action was filed by employees claiming the company denied workers mandatory rest periods, and meal breaks.

Details of the Case: Craig et al v. Corteva, Inc. et al

Court: U.S. District Court for the Northern District of California

Case No.: 3:19-cv-07923

Craig et al v. Corteva: The Plaintiff

In Craig et al v. Corteva, the putative class consists of any current or former hourly worker employed by Dow Chemical Co. or Dow AgroSciences LLC as long as they completed 12-hour shifts at the Pittsburg, California plant sometime between December 2015 and the date of preliminary approval of the settlement agreement. Jason Craig and Michael Ross, named plaintiffs in the case, were employees at a 24/7 pest control and agricultural products manufacturing plant. They filed the suit in December 2019 claiming the company denied them rest periods and meal breaks.

Craig et al v. Corteva: The Defendant

The plant in question in the case was originally owned by Dow Chemical Co. According to the motion, following a 2017 merger, DowAgrosciences also became an owner of the plant. In 2019, DowAgrosciences was spun off from Dow and is now named Corteva Agriscience LLC. The Dow Chemical Co. spin off will pay $3.8 million to settle the proposed class action in connection to the agricultural products plant in Contra Costa County, California. The proposed settlement agreement came after several months of discovery and research of the company’s pay and employee break policies. Corteva denies any wrongdoing and claims they comply with wage and hour law.

Craig et al v. Corteva: An Overview of the Case

In a Friday motion for preliminary approval of a settlement with Corteva Agriscience LLC, the workers asked the judge to approve an agreement to settle claims that they weren't given breaks during their shifts at an agricultural products plant in Contra Costa County, California. If approved, the settlement would cover attorney fees, and distribute $2.77 million amongst the 207 class members. Plaintiffs felt the settlement was reasonable and relevant as it would yield a prompt, certain recovery for class members without requiring additional time and litigation 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.

Court Denied Request for Panel Rehearing of California Wage Suit

In March 2021, the Ninth Circuit denied KM Industrial Inc.’s request to reconsider their decision to return a wage and hour suit to state court. The decision followed the discovery that the company used assumptions that inflated the price tag associated with the suit so that it could get the case into federal court.

Details of the Case: Levone Harris v. KM Industrial Inc.

Court: U.S. Court of Appeals for the Ninth Circuit

Case No.: 20-16767

Levone Harris v. KM Industrial Inc.: The Plaintiff

The plaintiff, Levone Harris, filed suit against KM Industrial in 2019. Harris is a former KM Industrial employee that claims KM Industrial violated state labor law. Allegations made in the suit included failing to provide required overtime pay, failing to reimburse business expenses, failing to provide meal and rest breaks, and failing to provide workers with accurate wage statements.

Levone Harris v. KM Industrial Inc.: The Defendant

KM Industrial had the case removed to federal court on the grounds that the amount in controversy exceeds $5 million. (The company estimated the amount in controversy to be close to $7.1 million). A district judge granted a motion by Harris to send the case back to state court after finding the estimate provided by KM Industrial was “grossly exaggerated.” The company appealed, claiming the decision conflicted with precedent, but the request for rehearing was denied. The denial left the panel’s prior majority decision in place to remand the proposed class action to state court.

Levone Harris v. KM Industrial Inc.: An Overview

After the panel majority in November agreed with the district court’s decision that the Defendant improperly assumed when estimating amounts in controversy and failed to show their calculations were reasonable. Without proof that the members of the hourly employee class and the two subclasses were the same (and worked that long enough work shifts to quality for meal breaks and rest periods), the assumptions presented by KMI were found unreasonable.

If you have questions regarding employment law and how it protects California employees from wage and hour violations, 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.

Wells Fargo Employees Seek Class Certification in Employment Lawsuit

Wells Fargo workers seek class certification from California federal court for employees claiming they were cheated out of mandatory breaks, pay as required by employment law, and forced non-reimbursed expenses to comply with dress codes at the financial institution.

Details of the Case: Caudley Simon v. Wells Fargo Bank, National Association

Court: United States District Court for the Central District of California

Case No.: 2:20-cv-00211

Simon v. Wells Fargo: The Plaintiff

Wells Fargo employees seek class certification in Caudley Simon v. Wells Fargo Bank, National Association. Plaintiffs claim they were cheated of pay, mandatory breaks and rest periods, and reimbursements for money spent complying with the company’s stringent dress code policy. Plaintiffs filed the motion in California federal court arguing that there are five categories of Wells Fargo employees that should be certified due to the fact that they were allegedly harmed by the same company policies at various Wells Fargo branches throughout California. The named plaintiff, Simon, is a former personal banker for Wells Fargo. He sued Wells Fargo in December 2019 alleging that he (and other workers in similar situations) were regularly deprived of mandatory meal breaks and rest periods, and were not provided paper wage statements in compliance with employment law. Additional allegations were also listed.

Simon v. Wells Fargo: The Defendant

Plaintiffs in the case claim that Wells Fargo’s timekeeping system precluded their workers from logging interrupted or condensed rest periods and meal breaks. Additionally, court documents allege that due to the company’s strict dress code, employees were forced to spend hundreds each year to comply and to pay for dry cleaning bills. Wells Fargo states the claims are meritless, and that they are committed to complying with state and federal employment law.

Simon v. Wells Fargo: An Overview

Wells Fargo employees seeking class certification include a pay stub class of workers who received payment through direct deposit and did not receive paper wage statements. Another class of workers spent “hundreds” of dollars annually to comply with the Wells Fargo dress code, and manage their dress code with expensive dry cleaning bills. It’s estimated that the combined class members could total more than 6,000 Wells Fargo workers.

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.

7-Eleven Touts Franchisee Suit Regarding Flexible Work Hours In California

In recent news, 7-Eleven faces allegations from California franchisees claiming employment law violations related to flexible work hours in California.

Details of the Case: Serge Haitayan et al. v. 7-Eleven Inc.

Court: U.S. District Court for the Central District of California

Case No.: 2:17-cv-07454

Serge Haitayan et al. v. 7-Eleven Inc.: The Plaintiff

Serge Haitayan, is one of 4 plaintiffs in the case that claimed 7-Eleven exerts unreasonable control over their business decisions, and as such, they should actually be considered employees under state law. However, Plaintiff “Paul” Lobana, another plaintiff in the case, owns three stores throughout the LA area. Under cross examination aimed at undercutting the plaintiffs’ claims that 7-Eleven exerts stringent control over franchise owners, Lobana admitted he grossed more than $200,000 in profits in 2019 while he was deducting business expenses on income taxes, and that he has the freedom to come and go from the 7-Eleven store whenever he wants. He was the 3rd plaintiff to offer similar testimony.

Serge Haitayan et al. v. 7-Eleven Inc.: The Defendant

7-Eleven Inc. claims that the arguments presented by the plaintiffs in the Serge Haitayan et al. v. 7-Eleven Inc. case threatens the stability of California’s entire franchise system if the owners prove the company owes them more than $11 million for business expenses.

Allegations Plaintiffs Made in the Suit:

Plaintiffs in the suit claim that 7-Eleven allegedly misclassified them as independent contractors, but treated them as if they were store managers.

Serge Haitayan et al. v. 7-Eleven Inc.: An Overview

Four California franchise owners sued 7-Eleven in 2017 on behalf of approximately 1,000 franchisee owners in California, but they were later denied class certification. In February 2021, Judge Fischer ruled that the plaintiffs’ claims fall under the older California Borello employment test rather than the newer ABC test. The Borello test was established by the California high court’s 1989 ruling on S.G. Borello & Sons Inc. v. Department of Industrial Relations and creates a looser standard (in comparison to the ABC test) that weights numerous factors with an emphasis on the control an employer exerts over workers. . On the second day of a video conference California federal bench trial in March 2021, Haitayan (plaintiff in the case), conceded that when working at the 7-Eleven franchise, he did set his own work schedule, take vacations whenever he wanted, and worked only 10-15 hours each week.

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.