OSHA Worker Safety Rule Changes Could Lift Mask Requirements for Vaccinated Workers

California’s OSHA department is introducing changes to recommended Covid-19 worker safety rule changes that could lift mask requirements for a large portion of vaccinated California workers.

Mid-June Meeting Will See Further Discussion of Mask Requirements:

Eric Berg, California OSHA Deputy Chief of Research and Standards, stated that he would present suggested revisions to rules at the next meeting on June 17th, 2021. Suggestions would align with Department of Public Health guidance. If changes are approved, mask requirements could be lifted for the majority of vaccinated California workers by the end of the month.

OSHA Withdraws Recommendations for Changes After CDPH Announcement:

After the California Department of Public Health guidance was released recommending a reduction in masking requirements throughout California, the California Occupational Safety and Health Administration voted to withdraw their previously released recommendation for changes to pandemic-related worker rules (announced on June 3rd) in an emergency meeting. New OSHA proposed changes would be designed to align with CDPH’s most recent guidance.

CDPH Guidance Sets Rules for General Public & Vaccinated Californians:

The guidance issued by the CDPH set rules for the general public of California recommending vaccinated individuals remove masks except while using public transit systems, while in schools, healthcare settings, shelters, or prisons. The guidance also indicates that regardless of vaccination status, masks will not be required in most outdoor settings. Berg, of California OSHA, stated that CAL OSHA’s recommendations would coincide with the CDPH framework, which aligns with guidelines set out by Centers for Disease Control and Prevention.

The June 3rd Changes Announced by CAL OSHA:

The CAL OSHA changes to Covid-19 related safety measures required by California employers were announced prior to the CDPH’s issued guidance regarding mask requirements for California’s general public. The changes announced on June 3rd were to change rules put in place in November of 2020. However, the June 3rd changes had not yet cleared California’s Office of Administrative Law and were not in effect until the changes were officially published. Since the June 3rd changes were unanimously withdrawn at the emergency meeting, the requirements will remain as stated in the November 2020 rules until further changes are made.

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.

Is VW a Joint Employer Alongside California Independent Franchised Dealerships?

The Ninth Circuit is looking at joint employer claims in connection to California salespeople at independent franchised dealerships and the German automaker, Volkswagen. VW claims salespeople are overreaching with their claims, but if the Ninth Circuit finds that they are a joint employer, they could be liable for the commissions lost during the 2015 emissions-cheating scandal.

Details of the Case: Robert Saavedra et al. v. Volkswagen Group of America Inc. et al.

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

Case No.: 20-17327

VW Asks Ninth Circuit to Affirm October Decision:

In October, U.S. District Judge Charles R. Breyer’s decision closed out the consolidated wage and hour action. Volkswagen AG and Volkswagen Group of America asked the Ninth Circuit to affirm the decision they cited as “carefully reasoned.”

The Plaintiffs: Robert Saavedra et al. v. Volkswagen Group of America Inc. et al.

Plaintiffs in the case are former salespeople Robert Saavedra, Armando Rodriguez and Mickey Gaines. The plaintiffs allege that due to the 2015 "clean diesel" emissions-cheating scandal Volkswagen sales experienced a significant drop that dramatically hurt their overall income. The sales people, employed by independent franchised dealerships, argued that Volkswagen AG and Volkswagen Group of America Inc. worked with the franchise dealers to provide the employment opportunity and provide compensation to the plaintiffs. If the court finds for the plaintiffs on the joint employer argument, the cited Volkswagen entities would be liable for ensuring salespeople’s wages and hours were compliant with California state law.

The Defendant: Robert Saavedra et al. v. Volkswagen Group of America Inc. et al.

Volkswagen claimed that the plaintiffs continue to attempt to create an employment relationship where none exists. Volkswagern further argues that offering training, certifications and incentives does not constitute the amount of control necessary to indicate control over pay or working conditions that make them a joint employer according to the law. VW entities insist that plaintiffs in the case created the employment relationship in order to keep the suit alive after it was dismissed twice by Judge Breyer (first in September 2019, and again in June 2020).

Overview of the Case: Robert Saavedra et al. v. Volkswagen Group of America Inc. et al.

After amendments were made to the suit, the salespeople claimed Volkswagen violated California Labor Code and Unfair Competition Law with fraudulent omissions and their lack of disclosure regarding emissions-cheating. The October ruling dismissed these claims, but the plaintiffs appealed to the Ninth Circuit to reverse Judge Breyer’s dismissal. Volkswagen expects the Ninth Circuit to reject the appeal.

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.

$1.5M Payment to Harborside Discrimination Claims

Harborside, a California cannabis company, agreed to pay $1.5 million to resolve a years-old discrimination lawsuit.

Details of the Case: Moothery v. FLRish Retail Management and Security Services LLC et al

Court: Superior Court of California, Alameda County

Case No.: RG18908395

The Plaintiff: Moothery v. FLRish Retail Management and Security Services LLC et al

The plaintiff, Scott Moothery, is an African American, former employee who alleges he was consistently berated and harassed on the job about his age and his race. In 2015 when Moothery was hired as Harborside’s bookkeeper, he was in his 70s. According to the lawsuit originally filed in 2018, Moothery was promoted multiple times, and received praise for his work, but was fired after he complained about the treatment he received from Harborside’s controller. According to the lawsuit, Moothery was one of five employees of color out of 120 staffers at Harborside. The plaintiff sought $1.13 million in damages. The company agreed to pay a settlement higher than the amount the plaintiff sought in order to resolve all the claims.

The Defendant: Moothery v. FLRish Retail Management and Security Services LLC et al

The Defendant in the case is California cannabis company Harborside or FLRish Retail Management and Security Services LLC et al. Harborside claims they settled to avoid the additional costs related to moving forward with the suit. The lawsuit has seen active litigation since the original filing in 2018. According to the company, the $1.5 million will be paid out in one installment.

The History of the Case: Moothery v. FLRish Retail Management and Security Services LLC et al

Moothery claims the issues at work started when Peter Moran started work as the company’s controller. According to the plaintiff, Moran screamed at him in the office, berated him about supposed failures, assigned him tasks unrelated to his job, threatened to replace him, left him out of meetings, criticized his work in conversations with coworkers, etc. In 2016, Moothery complained about the treatment he was receiving to human resources, advising them that the treatment was unique in comparison to the way other employees were treated. According to the lawsuit, a few days later Moothery was fired.

Overview of the Case: Moothery v. FLRish Retail Management and Security Services LLC et al

Moothery's suit brought claims of discrimination, retaliation, defamation, harassment, wrongful termination, etc. According to court records, the settlement deal was officially struck in court June 4th, 2021, just a few weeks before the case was scheduled for trial.

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.

$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.