$2.9B Class Action Spending Record Fueled by Covid-19

Class action litigation spending increased to $2.9 billion in 2020 (up from $2.64 billion in 2019). This rise in spending marks the sixth consecutive year of class action spending increases (based on Carlton Fields corporate survey).

Class Action Spending in 2020:

Class action accounted for about 13% of the $22.8 billion litigation market in 2020. This shows an 11.6% increase from 2019. As of April of 2021, over 1,600 Covid-19 related class actions were filed in the United States. Many are not surprised by the increase, but the amount of the increase is somewhat surprising.

The Carlton Fields Corporate Survey: Survey of Companies

The recently published survey, Carlton Fields Corporate Survey, is a survey of various companies across a range of sectors. According to the survey, the three largest categories for Covid-19 related class actions were:

• Insurance Coverage for Business Interruption

• Higher Education Refunds

• Demands for Entertainment, Ticket & Travel Refunds

Covid-19 Class Actions & Employment Law Violations:

There have been more than 2.737 lawsuits (including 210 class action lawsuits) filed alleging labor and employment violations in connection to the coronavirus since March 12, 2020. California saw the highest number of coronavirus-related employment law filings at 726. (Other states with a high number of coronavirus-related employment law filings include: New Jersey at 313, Florida at 206, New York at 204, and Ohio at 162. The industries with the highest number of coronavirus-related filings were:

• Healthcare: 666 cases

• Manufacturing: 326 cases

• Retail: 254 cases

• Public Administration: 223 cases

• Hospitality: 195 cases

A Significant Percentage of Companies Face Coronavirus-Related Suits:

Throughout 2020, more than 25% of companies surveyed faced one or more class actions. Due to the high number of class actions, more than 60% of companies surveyed noted that they changed their business behaviors in order to avoid class action litigation. Most industries saw the need to adapt their labor and employment protocols so they could remain compliant with changing regulations and safety measures, and avoid litigation stemming from Covid-19 related employment law violations.

If you have questions about Covid-19 related 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.

Trio of Lawyers Claim Firm Fired Employees Based on Pro-Trump Opinions

A trio of attorneys formerly with Kain & Scott PA allege their Minnesota bankruptcy firm of firing co-workers for their public support of President Donald Trump, and the police force online. The attorneys making the allegations claim that after they pointed out the disparity, they were also fired for speaking up.

Details of the Case: William P. Kain et al. v. LifeBack Law Firm PA et al.

Court: Minnesota District Court for Stearns County

Case No.: 73-CV-21-3830

The Plaintiffs in the Case: William P. Kain et al. v. LifeBack Law Firm PA et al.

William Kain (name parner), and partners Margaret Henehan and Kelsey Quarberg claim that Kain & Scott President Wesley W. Scott forced them out of the firm after they brought up that his behavior regarding a number of terminations was inappropriate. The plaintiffs allege that Scott instructed the firm operations manager to fire two firm employees citing that they were “racist” because they shared pro-Trump and pro-police social media posts. The plaintiffs confronted Scott and told him they were worried that the previously mentioned conduct was a violation of state law prohibiting economic reprisals or loss of employment due to political affiliation or activity. They also claim they advised him the situation was not good for employee morale and that it put the entire firm at risk. The plaintiffs allege wrongful termination, whistleblower law violations, breach of fiduciary duty, tortious invasion of privacy, and defamation. They seek unspecified damages, including lost wages and benefits, as well as a court order to force Scott or the firm in general to purchase their shares at a previously agreed upon value.

The Defendant in the Case: William P. Kain et al. v. LifeBack Law Firm PA et al.

The trio of attorneys claim that initially Scott apologized for her behavior and officially resigned, requesting that Kain, Henehan, and Quarberg buy him out. However, the next day, Scott withdrew his resignation, and instead terminated the three attorneys who brought the complaint. Scott told other firm staff that the plaintiffs were fired for insubordination, which the plaintiffs claim is not true.

Since the Suit was Filed: William P. Kain et al. v. LifeBack Law Firm PA et al.

Since the suit was filed, the firm continues to use Kain’s name, although it did officially change the name of the firm to LifeBack Law Firm (late May 2021). According to the plaintiffs, Kain’s name is still used on the firm’s website, address, and property signage. The three attorneys who were fired from the firm state that they are shareholders owning a combined 50% of issued and outstanding shares of the firm’s common stock, but that the firm is being difficult in negotiating to buy out their shares. The plaintiffs also claim that Scott cut off their access to firm telephones, email, computer systems, and physical offices (the locks were changed). Scott even called the police requesting they remove Quarberg from the St. Cloud office. He claimed Quarberg was trespassing and physically threatened him.

If you have questions about California labor law violations or wrongful termination, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

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.