Tennessee Titans Face Accusations of Firing Worker on Covid-19 Leave

In recent news, the Tennessee Titans are facing a lawsuit. According to the lawsuit, the NFL team violated the Families First Coronavirus Response Act (and other federal labor laws) when they terminated a field maintenance employee who took time off work when they contracted Covid-19.

The Case: Department of Fair Employment and Housing (DFEH), an agency of the State of California vs. Activision Blizzard, Inc., Blizzard Entertainment, Inc., Activision Publishing, Inc., etc.

The Court: Superior Court of the State of California, in and for the County of Los Angeles

The Case No.: 21STCV26571

The Plaintiff: DFEH v. Activision Blizzard

On July 20, 2021, DFEH, the plaintiff in the suit, filed a complaint against Activision Blizzard alleging 10 different violations of state employment law. The lawsuit was filed after the completion of a two-year DFEH investigation into the defendant’s workplace practices. The investigation led to a report (dated June 24, 2021) that concluded Activision Blizzard was discriminatory toward female employees in terms of employment conditions, compensation for their work, job assignments, promotions, terminations, workplace retaliation, etc. According to the investigation, female employees of Activision Blizzard were also subjected to sexual harassment, and management at the company did not respond appropriately to the situation, effectively allowing discrimination, harassment, and retaliation to run rampant at the company. Examples of employment law violations cited in the civil lawsuit reach as far back as 2010.

The Defendant: DFEH v. Activision Blizzard

The defendant, Activision Blizzard, is a developer and publisher of mega franchise video games. Some of their popular game releases include World of Warcraft, Diablo, and Call of Duty.

The Case: DFEH v. Activision Blizzard

Activision Blizzard faces wide-ranging and highly damaging allegations of maintaining a hostile workplace (specifically toxic for women), employing a disproportionately low number of women, paying women less than male counterparts performing similar job duties, subjecting female workers to sexual harassment, and allowing perpetrators of sexual harassment in the workplace to go without any significant punishment. While the complaint officially names the subsidiaries Activision Publishing and Blizzard Entertainment, as well as the corporate parent, Activision Blizzard, a majority of the specific allegations made in the complaint are directly related to Blizzard Entertainment. After the defendant’s initial response denying the validity of the claims made in the suit, and dismissing the allegations as a distortion of the truth or complete falsehoods resulted in major kickback from the workforce (leading up to an organized walkout at the company’s Irvine, California headquarters), Activision chief executive Bobby Kotick, issued a statement apologizing for the initial “tone deaf” response to the lawsuit. The company also announced that they hired a 3rd party law firm to conduct a review of their processes and procedures.

If you have questions about California labor law violations or need to file a hostile work environment complaint, 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.

Tesla Materials Handler Awarded $1M After Arbitration of Harassment Claim

A former Tesla materials handler filed a lawsuit claiming that he was subjected to racial harassment in the Fremont, California factory.

The Case: Berry v. Tesla

The Court: Superior Court of California, County of Alameda

The Case No.: RG21104057

The Plaintiff: Berry v. Tesla

The plaintiff, Melvin Berry, is a former Tesla employee. Berry states he was hired as a materials handler for Tesla in 2015. Only 17 months later, Berry quit because he was allegedly being harassed at work. Berry filed a racial harassment and discrimination lawsuit citing multiple counts of harassment on the job via co-workers and supervisors. The original legal complaint alleged that Tesla supervisors called him the N-word while working in the electric automaker’s Fremont, California factory.

The Defendant: Berry v. Tesla

The defendant in the case is Tesla. Tesla, a popular and well known electric automaker employed Berry out of their California factory as a materials handler. According to the plaintiff, he filed two complaints in 2017 alleging harassment coming from his Tesla supervisors. In the complaint, the plaintiff claims that after he confronted his supervisors for alleged use of the racial slur, he was given a heavier workload and longer hours.

The Case: Berry v. Tesla

Earlier this year, the plaintiff hired an employment lawyer to represent him in a private arbitration hearing in which it was argued that supervisors at Tesla ignored Berry’s complaints of harassment in the California Tesla factory. The arbitrator found that there was evidence that two of the supervisors at the Tesla factory where Berry was employed used racial slurs and that the experiences caused him harm both emotionally and psychologically. It was noted in the ruling that a supervisor using the N-word in reference to a subordinate in the workplace is enough to clearly constitute severe harassment based on case law. The former Tesla employee was awarded $1 million, however, the majority of the award will go toward attorney fees and legal fees.

If you have questions about California labor law violations or how employment law protects you against harassment 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.

Former Advance Kids Employee Alleges Misclassification

A former employee of Advancec Kids, Inc. alleges misclassification led to overtime violations, wage and hour violations, etc.

The Case: Lillye Buckans, v. Advance Kids, Inc.

Court: Sacramento County Superior Court

Case No.: 34-2021-00303450

The Plaintiff: Lillye Buckans, v. Advance Kids, Inc

The plaintiff in the case is Lillye Buckans, a former employee of Advance Kids, Inc. According to court documents, Buckans was employed by the defendant from June 2019 through August 2020. During her time with the company, Buckans was classified as a non-exempt employee, paid an hourly wage, and was entitled to meal and rest periods, minimum wage, and overtime pay as mandated by employment law. Buckans brought a California class action on behalf of herself and other individuals previously employed by Advance Kids, Inc. who were classified as non-exempt employees anytime from four years prior to the filing of the complaint through the ending date determined by the court.

The Defendant: Lillye Buckans, v. Advance Kids, Inc

The defendant in the case is Advance Kids, Inc. Advance Kids, Inc. is a California corporation that conducts a substantial amount of their business in the state of California. The company’s main services include in-home services, center-based services, educational services, and non-public preschool services to assist individuals of all ages and disabilities.

The Case: Lillye Buckans, v. Advance Kids, Inc

According to the complaint, Advance Kids, Inc. allegedly violated California Labor Code. Buckans claims the company failed to provide her (and other employees in similar situations) with legally required meal breaks, and rest periods. Buckans also alleges that the company failed to pay accurate overtime wages in accordance with employment law. Additional allegations of employment law allegations were also listed in the lawsuit including: failure to pay minimum wage, failure to provide itemized wage statements, failure to reimburse employees for required expenses, and failure to provide wages when due. The plaintiff also alleges that Advance Kids, Inc. engaged in unfair competition due to their company-wide policy allegedly failing to accurately calculate and record missed meal and rest periods for the plaintiff and other California workers.

If you have questions about California labor law violations or overtime pay 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 in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Taco Bell Recruiter Claims he was Denied Benefits through Misclassification

A recent California complaint alleges violations under the Employee Retirement Income Security Act (ERISA) and related state law actions.

The Case: Alders v. YUM! Brands, Inc, Taco Bell Corp., et al

The Court: United States District Court, Central District of California

The Case No.: 8:21-cv-01191-JLS-DFM

The Plaintiff: Alders v. YUM! Brands, Inc, Taco Bell Corp.

The plaintiff in the case is Tim Alders, a 63 year old resident of Orange, California. According to the complaint, the plaintiff was employed by Taco Bell through Yum! Brands from 1995 through 2020 as an executive recruiter. The plaintiff alleges that during the time he worked for the company, he met the test for employee status under the Nationwide Mutual Insurance v. Darden, 503 U.S. 318 (1992) and Dynamex Operations West Inc. v. The Superior Court of Los Angeles County and Charles Lee, Real Party in Interest, 4 Cal.5th 903 (Cal. 2018). Plaintiff claimed other workers in a similar situation were eligible to participate in various YUM Plans under the terms of the governing plan documents even though they were not labeled as “employees.” Alders filed suit for unpaid benefits he did not receive due to misclassification as an independent contractor.

The Defendant: Alders v. YUM! Brands, Inc, Taco Bell Corp.

The defendants in the case are YUM! Brands and Taco Bell. YUM is incorporated under North Carolina state law (1997). The main offices of YUM are located in Kentucky, and the company conducts business throughout California. The second defendant listed in the case is Taco Bell. Taco Bell is a California corporation operating out of Irvine, California. Taco Bell is a subsidiary of YUM. Taco Bell also conducts business throughout California. Various individuals were also listed as defendants.

The Case: Alders v. YUM! Brands, Inc, Taco Bell Corp.

Alder, the plaintiff, alleges he was misclassified during the 25 years he worked for the company, and by doing so, the company denied him retirement and other benefits. The lawsuit seeks recognition of his 25 years of employment for purposes of calculating his retirement benefits for the three different YUM Plans sponsored by the company. The complaint alleges that according to the plans’ governing documents, common law employees were eligible to participate in the Yum Plans, and that the plaintiff met the test for employee status in accordance with prior case law. Based on prior case law, the plaintiff alleged the defendant misclassified him as an independent contractor. The plaintiff argues his status as an employee noting that he participated in Yum corporate events, team meetings, the company dictated his work hours, he was issued a corporate email account, assigned an office at the company’s corporate headquarters, and was given access to the company’s computer system to complete his work. The company also prohibited Alders from accepting similar work from other fast food entities. While other similarly situated workers received benefits, Alders only received monthly compensation as an independent contractor.

If you have questions about California employment law or if you need to file an employment law 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.

California Model Alleges Agency Failed to Provide Payment In Accordance with Contract

After completing an assignment based on a contract with a California-based agency, a California model claimed that the company actually owed her significantly more due to “waiting time penalties.”

The Case: Brighton Collectibles, LLC v. Hockey

The Court: Super. Ct. No. 19CV06616, Santa Barbara County

The Case No.: 2d Civ. No. B307235

The Plaintiff: Brighton Collectibles, LLC v. Hockey

The plaintiff in the case is Natalie Hockey. Hockey was a model who directed her modeling agency to negotiate a contract on her behalf. The contract was with Defendant Brighton Collectibles, LLC, the defendant in the case. According to the contract, the agency agreed that Plaintiff would perform a one-day modeling shoot (a job estimated to last 10 hours) for Brighton Collectibles in exchange for $3,000, payable on receipt of the invoice. Hockey completed the 10 hour modeling job as described. After the job, Hockey sued the agency, alleging that the Defendant was her employer and violated Labor Code section 201 by not paying her the total amount due at the end of her modeling shoot day, and claiming that Brighton Collectibles actually owed her waiting time penalties totaling $90,000.

The Defendant: Brighton Collectibles, LLC v. Hockey

The defendant in the case, Brighton Collectibles, LLC, quickly cross-claimed for fraud. The cross-claim argued that the Plaintiff had represented that she would be paid $3,000 upon receipt of an invoice, and that the Defendant based their actions on that representation. The defendant further claimed that they were damaged by being subjected to the risk of liability to Hockey (amounting to the claimed $90,000). Hockey responded by filing an anti-SLAPP motion, seeking to strike Brighton Collectible’s cross-claim. The plaintiff’s motion was granted in trial court, but the defendant appealed.

The Case: Brighton Collectibles, LLC v. Hockey

The California Court of Appeal reversed the trial court's order granting the plaintiff’s anti-SLAPP motion attempting to strike Brighton's cross-claim for fraud. Even if the court assumed that Hockey met her burden of showing that the defendant’s cross-claim for fraud arose from protected conduct, the reversal was required based on the probability that the agency would prevail on its cross-claim. According to the evidence submitted, the court determined that the Defendant would likely be able to show that Hockey made a misrepresentation when she told the company to pay the agency for her modeling services upon receipt of an invoice, rather than immediately upon her “termination” as an employee at the end of the day (or the conclusion of the modeling shoot). Additionally, the court supposed it could be inferred that the plaintiff knew the misrepresentation was false based on her actions and intended for the agency to rely on her misrepresentation. The defendant did so - justifiably. And the plaintiff’s misrepresentation damaged the defendant by exposing the agency to $90,000 in waiting-time penalties (plus additional expenses due to attorney’s fees and costs associated with the case).

If you have questions about California labor law violations or contract negotiation, 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.

Do Overtime Rules Apply to Missed Meal Breaks in California?

An opinion issued on July 15, 2021 by the California Supreme Court in regard to meal period premiums impacts employers providing non discretionary payments for work performed by California employees.

The Case: Ferra v. Loews Hollywood Hotel, LLC

The Court: California Supreme Court

The Case No.: S259172

The Issue: Ferra v. Loews Hollywood Hotel, LLC

​​Generally speaking, non-exempt California workers may not work more than five hours without an uninterrupted meal period of at least 30 minutes being offered by their employer. If a California worker completes a shift longer than 10 hours, a second unpaid period of at least 30 minutes is required. An employee may waive their first meal period if six hours completes their day at work. The second meal period may be waived by the employee if the first meal period wasn’t waived and if the California employee’s shift is no longer than 12 hours. Additionally, California employers must provide rest breaks (for a minimum of 10 minutes) to their employees for every three and half hours they work. Employees cannot waive their mandatory rest breaks. When employees are not able to take their mandated meal breaks or rest breaks, employers must pay the employee a premium (Labor Code Section 226.7(c)).

The Question: Ferra v. Loews Hollywood Hotel, LLC

California law requires employers to provide one hour of pay for each workday in which they miss their mandatory meal breaks or rest periods. Prior to Ferra v. Loews Hollywood Hotel, LLC, employers and the lower courts seemed to agree that the premium for a missed meal or rest period was one hour of pay at the employee’s regular rate or pay. The case at hand brought up the question of whether or not Labor Code Section 226.7(c) ‘s reference to an employee’s “regular rate of pay” should take into account non discretionary forms of payment earned by employees in addition to their hourly wage. The reasoning presented in the case compared the calculation of compensation for missed meal and rest periods to the calculations used for overtime pay rates.

The Ruling: California Justices Say Overtime Rules Do Apply To Missed Meal Breaks

The California Supreme Court held that meal period premiums must consider non discretionary payments when designating the employee’s regular rate of compensation. Non Discretionary payments can refer to a variety of pay methods, but a common form of non discretionary pay is a bonus. In addition, the Court held that the decision would apply retroactively. The statute of limitations for underpaid or unpaid meal and rest break premiums is three years (or four years if the plaintiff also alleges a violation of California’s Unfair Competition Law). Claims under Private Attorneys General Act have a statute of limitation period of one year.

If you have questions about payment for missed meal breaks or rest periods or if you’ve experienced other 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.

Defendant Failed to Establish Existence of Arbitration Agreement

In recent news, a skilled nursing facility faced with a lawsuit filed by a former employee attempted to compel arbitration, but there was a question about the existence of the cited arbitration agreement.

The Case: Bannister v. Marinidence Opco, LLC

The Court: California Court of Appeals

The Case No.: A159815

The Plaintiff: Bannister v. Marinidence Opco, LLC

The Plaintiff in the case, Maureen Bannister, is a former employee at Marinidence Opco’s skilled nursing facility. Bannister filed a lawsuit against the Defendants alleging discrimination, retaliation, defamation, etc.

The Defendant: Bannister v. Marinidence Opco, LLC

In response to the complaint, Marinidence Opco, LLC, the defendant in the case, moved to compel arbitration, claiming that when they acquired the skilled nursing facility from the previous owner, Bannister electronically signed an arbitration agreement.

The Case: Bannister v. Marinidence Opco, LLC

The plaintiff in the case responded to the defendant’s claims that she signed an arbitration agreement at the time of the facility acquisition by presenting evidence that she never saw the arbitration agreement during the onboarding process or touched the computer that she was supposed to have used to provide her electronic signature on the agreement. Accepting the evidence the plaintiff presented as establishing that she never signed the cited arbitration agreement, the court denied the defendant’s motion and held that the defendant failed to meet their burden of establishing by a preponderance of evidence that a valid arbitration agreement exists. (The system in place had no employee-specific usernames or passwords to access the onboarding portal, and social security numbers were available in personnel files). The defendant appealed, but the California Court of Appeal affirmed, holding that there was substantial evidence indicating that the defendants failed to prove the plaintiff electronically signed an arbitration agreement. Without the use of unique usernames and passwords for each individual employee, it is difficult for employers to prove that a specific employee digitally signed an arbitration agreement.

If you need to discuss California state law or if you need to file a class action 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.