Judge Determines Ex-NHLer Cannot Sue for Sexual Discrimination Simply Because He’s a Man

A former NHL player, Roenick, was fired in February 2020 for making comments in poor taste about a female co-worker during a podcast. A New York federal judge decided in June 2021 that Roenick cannot sue for sexual discrimination simply because he’s a man.

Details of the Case: Roenick v. Flood et al

Court: U.S. District Court for the Southern District of New York

Case No.: 1:20-cv-07213

The Plaintiff: Roenick v. Flood et al

In February 2020, Roenick was fired for an off-color joke made about a female co-worker during a podcast. Roenick responded by suing Flood, NBC Sports, NBC Universal, Comcast, and 10 John Does on 12 different causes of action in July 2020. Roenick alleged he was not given the opportunity to correct his behavior, which was in violation of his contract.

The Defendant: Roenick v. Flood et al

The majority of claims made by the plaintiff in the case were dismissed by the judge in June 2021. Dismissed claims included all claims made against NBC and Comcast. Aiding and abetting claims may proceed against Flood and the various John Does since the complaint sufficiently alleged the network retaliated against the ex-NHLer by terminating him from his position shortly after the confrontation between Roenick and Flood about harassing statements Flood allegedly made to Tappen. Defendants in the case did not seek to dismiss the breach of contract claim or two gender-related retaliation claims brought under city and state laws.

The Case: Roenick v. Flood et al

Judge John P. Cronan, U.S. District Judge, dismissed the majority of Roenick’s lawsuit including all the claims made against NBC Sports and Comcast. Roenick argued that his joke on the podcast about a threesome with his wife and a co-worker, Kathryn Tappen, wasn’t any different from comments made by other NBC personalities Johnny Weir and Tara Lipinski. Roenick claims his behavior is being singled out because of the three on air personalities, Roenic, Lipinski, and Weir (who is gay), he is the only straight man. However, the judge described Roenick’s comment as “categorically different” in comparison to those made by Lipinski and Weir in an NBC skit.

If you have questions about California labor law and how it protects you from workplace retaliation and breach of contract, 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 Unlikely to Grant Uber’s Bid to Toss Lawsuit Claiming Racial Bias

A California federal judge appears unlikely to toss a former Uber driver’s lawsuit claiming his firing stemmed from a racially biased rating system.

Details of the Case: Thomas Liu et al. v. Uber Technologies Inc.

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

Case No.: 3:20-cv-07499

The Plaintiff in the Case: Liu v. Uber

A former Uber driver, Thomas Liu, is from Hawaii and of Asian descent. Liu filed a suit against his former employer, Uber, claiming discrimination in fall of 2020. Liu alleged Uber “deactivated” him in October 2015 due to his rating in the app; which fell below the standard set by the ride-sharing giant. The star-rating system in use by Uber allows passengers to rate their drivers on a scale of one to five stars (with five being the best rating). Drivers are required to maintain a certain level star rating determined by Uber to avoid deactivation. In March 2021, the judge tossed the complaint because it was “sparse and poorly drafted.” After amending the complaint, Liu added disparate treatment and disparate impact claims under California state law. Uber again moved to have the suit tossed in April 2021. In June 2021, the judge appeared to be allowing Liu’s disparate impact claim, but agreed with the Defendant that the disparate treatment claim should be tossed.

The Defendant in the Case: Liu v. Uber

Uber's counsel argued that the plaintiff failed to connect his personal experience of alleged racial discrimination as a driver for ride-sharing giant, Uber and the impact that discrimination had on his rating to the argument. They also argued that the social science article* Liu cited in the amended complaint is conclusory. However, the judge disagreed - stating he did not find the article conclusory. Instead he noted that there appears to be a body of research finding discriminatory terminations may result from online marketplaces with employment hinging on consumer-sourced rating systems. The judge also pointed out that when Uber defended its decision to disallow tipping of drivers, they acknowledged that passengers’ tipping behaviors were influenced by bias.

* In the amended complaint, Liu cited a 2016 paper titled "Discriminating Tastes: Customer Ratings as Vehicles for Bias," which suggests that consumer-sourced rating systems, like the star rating system used by Uber, are highly likely to be influenced by bias, including by factors such as race.

Does Uber’s Star-Rating Determining Eligibility of Drivers Allege Discrimination?

While the case is not yet decided, the California federal judge seemed unlikely to grant Uber’s bid to toss a racial bias suit during the June 2021 remote hearing. The judge said it seemed the driver’s allegation that his termination was based on a rating system that disparately targets minorities appeared plausible. The plaintiff seeks to represent a nationwide class of Uber drivers who either lost their position or risked the loss of their position due to poor ratings from passengers.

If you have questions about California labor law violations or discrimination in the workplace, 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.

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.