California Retaliation Case Could Help Determine the Evidentiary Standard for Claims

In recent news, the Supreme Court will consider the question of which evidentiary standard should be used for certain retaliation claims.

The Case: Lawson v. PPG Architectural Finishes, Inc.

The Court: Supreme Court of California

The Case No.: 19-55802

The Plaintiff: Lawson v. PPG Architectural Finishes, Inc.

Wallen Lawson, the plaintiff in the case, started working as a Territory Manager for PPG in June 2015. As a Territory Manager, Lawson’s duties include merchandising products in Lowe’s Home Improvement store displays were stocked, and displays were in good condition. While working as Territory Manager, Lawson reported directly to Clarence Moore, a Regional Sales Manager. Moore oversaw approximately a dozen Territory Managers, including Lawson. Territory Manager job performance was measured based on (1) his ability to meet sales goals each month, and(2) scores received during what PPG called “Market Walks.” The Market Walk involved the Territory Manager and Regional Sales Manager visiting various stores together so the Regional Sales Manager could ascertain if Territory Managers had successfully built a relationship with the retailer.

The Allegations: Lawson v. PPG Architectural Finishes, Inc.

The plaintiff claims he was directed by his supervisor to manage a product in a way that fraudulently pulled a slow-selling product from inventory. The plaintiff refused and reported the situation to the PPG ethics hotline (twice). The second time Lawson made a report to the ethics hotline, there was an investigation. During that same time, Lawson began receiving poor ratings for his performance, was given a performance improvement plan, and was eventually fired.

The Defendant: Lawson v. PPG Architectural Finishes, Inc.

The Defendant in the case, PPG Architectural Finishes, Inc. (“PPG”), manufactures paints, stains, caulks, and other products for homeowners and professionals, and sells its products to retailers such as The Home Depot, Menards, and Lowe’s.

Details of the Case: Lawson v. PPG Architectural Finishes, Inc.

After the plaintiff was fired, he filed a complaint against PPG alleging that he was retaliated against as a whistleblower. After applying the McDonnell Douglas test, the trial court concluded the plaintiff failed to carry his burden to raise triable issues of fact, and the court granted the defendant's motion for summary judgment. The plaintiff appealed to the 9th U.S. Circuit Court of Appeals, arguing that the trial court should have applied the evidentiary standard outlined in Section 1102.6 which would have transferred the burden of proof to the employer once the plaintiff demonstrated by clear and convincing evidence that the whistleblower activity was a contributing factor in the retaliatory act. The Ninth Circuit approached the Supreme Court of California with the question of which takes precedence when retaliation claims are brought pursuant to section 1102.5 of California’s Labor Code: the evidentiary standard set forth in section 1102.6 of the California Labor Code or the McDonnell Douglas test? The Supreme Court will need to determine which should be used as the relevant evidentiary standard.

If you have questions about California employment law or if you need to discuss retaliation 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.

California Nurse Filed Two Class Actions with the Same Claims: Against the Staffing Agency & a Medical Center

A California nurse successfully filed for the same set of claims against two joint employers in two separate class actions.

The Case: Grande v. Eisenhower Medical Center

The Court: Cal.App.5th

The Case No.: RIC1514281

The Plaintiff: Grande v. Eisenhower Medical Center

The plaintiff, Grande, was assigned to work as a nurse at Eisenhower Medical Center by FlexCare, LLC, a temporary staffing agency. During her time working at Eisenhower Medical Center, Grande alleges she did not receive required mail and rest periods, was not paid wages earned for certain periods she worked, and did not receive overtime wages.

The Defendant: Grande v. Eisenhower Medical Center

The defendant in the case, Eisenhower Medical Center, worked with FlexCare LLC, a temporary staffing agency.

Summary of the Case: Grande v. Eisenhower Medical Center

The plaintiff’s claims were based solely on the time she was assigned to work at Eisenhower Medical Center by the temporary staffing agency, FlexCare LLC. Initially, the plaintiff filed a class-action lawsuit on behalf of FlexCare employees assigned to hospitals throughout California. FlexCare settled with the class, requiring the plaintiff to execute a release of claims. The trial court entered a judgment that incorporated the settlement agreement and release of claims. One year later, the plaintiff filed a second class-action citing Eisenhower Medical Center as the Defendant. FlexCare intervened, insisting that the plaintiff could not bring a separate lawsuit against Eisenhower as the claims were already settled in the previous class action. After a limited trial, the trial court ruled that Eisenhower was not a released party under the terms of the prior class action’s settlement agreement since Eisenhower was not named in the previous lawsuit. As such, Eisenhower Medical Center did not have a legal right to avail itself of the doctrine of res judicata; they were neither a party to the prior litigation nor privity with FlexCare, LLC. The appellate court upheld the trial court’s decision. The ruling on this case could affect how staffing agencies and the employers who work with them need to manage litigation in order to avoid duplicate litigation that would result in them paying twice for the same claims.

If you have questions about California employment law or if you need to discuss how to file a California class action, 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.

$150,000 National Car Dealers Settlement to Resolve EEOC Discrimination Lawsuit

National Car Dealers to pay $150,000 settlement after worker allegedly fired after disclosing a potential cancer diagnosis filed an EEOC Discrimination Lawsuit.

The Case: U.S. Equal Employment Opportunity Commission v. Cappo Management XXIX, Inc.

The Court: U.S. District Court for the Eastern District of California

The Case No.: 2:20-cv-02245-MCE-KJN

The Allegations: U.S. Equal Employment Opportunity Commission v. Cappo Management XXIX, Inc.

According to the allegations in the case, the employers terminated one of their title clerks in a Sacramento dealership over a possible cancer diagnosis. The employee was suddenly ill and missed several days of work. Following the missed days, she informed management that she was hospitalized and diagnostic testing was being completed to search for signs of cancer. According to the suit, the company fired the title clerk one day before her planned return - despite a medical release that allowed her to continue working. In the termination letter the company stated that they advised her to “focus on her health,” and noted it was not a performance-related termination.

The Defendant: U.S. Equal Employment Opportunity Commission v. Cappo Management XXIX, Inc.

The alleged conduct on the part of the employer in the case violates the Americans with Disabilities Act (ADA). The ADA prohibits employers from discriminating against employees based on a disability or a perceived disability. The lawsuit was filed on Nov. 10, 2020 in U.S. District Court for the Eastern District of California (Case No. 2:20-cv-02245-MCE-KJN). Before filling, the EEOC attempted to reach a pre-litigation settlement.

Case Details: U.S. Equal Employment Opportunity Commission v. Cappo Management XXIX, Inc.

Defendant will pay $150,000 as well as hire a consultant to assist in facilitating positive change to current policies and training practices. Doing so enables them to settle the disability discrimination lawsuit as per settlement negotiations. In the consent decree settling the disability discrimination lawsuit, the $150,000 is designated as lost wages and emotional distress damages for workers. The companies are required to put new policies and procedures (or updated, revised policies and procedures) in place to offer reasonable accommodations for employees with disabilities. Doing so requires them to retain an ADA consultant. Additionally, leave-based terminations will now require secondary reviews, and the company will begin to offer annual training to management and human resources personnel. Finally, the company will also start submitting reports to the EEOC during the three-year term of the settlement decree.

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

Clarifying Premium Pay for Missed Meal and Rest Periods

The California Supreme Court held that an employee’s regular rate of compensation for meal and rest period premium pay is synonymous with the employee’s regular rate of pay for overtime calculations. The decision was announced on July 15, 2021, while the court considered the implications of Ferra v. Loews Hollywood Hotel, LLC.

The Case: Ferra v. Loews Hollywood Hotel, LLC

The Court: California Supreme Court

The Case No.: S259172

The Plaintiff: Ferra v. Loews Hollywood Hotel, LLC

The plaintiff in the case is a hotel bartender named Ferra. Ferra alleged that Loews improperly calculated her meal and rest period premium payments by excluding her non-discretionary quarterly incentive bonuses when they completed the premium pay calculations.

The Defendant: Ferra v. Loews Hollywood Hotel, LLC

Loews argued (successfully) before a trial court as well as a court of appeal that Ferra’s ‘regular rate of compensation for meal and rest period premium pay is her base hourly rate of pay and that the regular rate of compensation for meal and rest period premium pay is distinguishable from her overtime regular rate of pay. The California Supreme Court disagreed and reversed the decision from the Court of Appeal. The Supreme Court concluded that: “the ‘regular rate of compensation for meal and rest period premium pay under California Labor Code section 226.7(c) is synonymous with the regular rate of pay for overtime as defined under California Labor Code section 501(a). Thus, employers paying meal and rest period premiums must include non-discretionary payments, meaning those that are paid pursuant to [a] prior contract, agreement, or promise . . . .”

The Case: Ferra v. Loews Hollywood Hotel, LLC

When the California Supreme Court held that an employee’s ‘regular rate of compensation’ for meal and rest period premium pay is synonymous with the employee’s ‘regular rate of pay’ for overtime pay, they clarified a common point of argument in California wage and hour lawsuits. When California employers pay their employees meal and rest period premiums, they must use the employee’s overtime regular rate of pay (including non-discretionary payments for any work performed). The California Supreme Court also ruled that the holding applies retroactively. As such, California employers should review and update their payroll policies and any related procedures associated with meal and rest period premiums to verify that premium payments are paid at the regular rate of pay, and include applicable non-discretionary payments.

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

Vail Resort’s $13M Settlement Offer to Resolve California Wage & Hour Lawsuits Could Hurt Colorado Suit

Vail Resorts offered $13 million to settle five California wage and labor lawsuits, which could have negative repercussions for a similar lawsuit filed in Colorado.

The Case: Randy Dean Quint, John Linn, and Mark Molina, Individually and On Behalf

Of All Others Similarly Situated v. Vail Resorts, Inc.

The Court: U.S. District Court for the District of Colorado

The Case No.: 1:20-cv-03569-DDD-GPG

The Plaintiff: Quint, Linn, and Molina v. Vail Resorts, Inc.

The plaintiffs in the case claim that Vail Resorts willfully and systematically failed to pay hourly employees for all their hours worked at the hourly wage rate designated in employment agreements. The lawsuit alleges that ski/snowboard instructors, ticket scanners, lift operators, and other employees are all (to varying degrees) not fully compensated for all hours worked during their shifts. Plaintiffs point out in the lawsuit that Vail Resorts requires employees to complete “off the clock” work, unpaid training, unpaid travel, and unpaid “dressing time.” Plaintiffs also allege that Vail Resorts did not reimburse employees for the purchase or maintenance costs of their ski and snowboard equipment or for cell phones required for the job. According to the lawsuit, Vail Resorts exploited the plaintiffs and thousands of other seasonal employees for years in violation of federal and state labor laws (Colorado, California, Utah, Minnesota, Wisconsin, Washington, New York, Vermont, and Michigan). The plaintiffs seek class-action status for eligible current and former employees that worked for Vail Resorts during the past three years.

The Defendant: Quint, Linn, and Molina v. Vail Resorts, Inc.

The Defendant in the case, Vail Resorts, is a recreational and hospitality company headquartered in Broomfield, Colorado.

The Case: Quint, Linn, and Molina v. Vail Resorts, Inc.

Vail Resorts filed a motion to pause the Colorado case while the California settlement negotiations proceeded. In November 2021, a federal judge granted the motion. California plaintiffs’ attorneys filed preliminary approval paperwork outlining the settlement deal in early 2022. The California lawsuits are similar in many ways to the proposed class-action lawsuit in Colorado filed in December 2020. However, Colorado counsel says they would have asked for a settlement far in excess of the $13.1 million spread across a class of 100,000 people, as well as requiring policy changes to be negotiated into the deal. Vail Resorts argues that the settlement for the California lawsuits should also resolve and release outstanding claims in other courts, including the Colorado case. “resolve and release all outstanding claims against Vail Resorts,” including the Colorado case. Colorado plaintiffs argue that the Colorado case must move forward to seek an end to the egregious treatment of employees at Vail Resorts.

If you have questions about overtime violations or off-the-clock work, 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.

Pacific Western Bank Faces Allegations they Violated California Labor Code

A recent lawsuit filing includes allegations that Pacific Western Bank violated California Labor Code by failing to provide accurate and itemized wage statements for employees.

The Court: San Bernardino County Superior Court

The Case No.: CIVSB2127696

The Allegations Against the Defendant: Pacific Western Bank

The plaintiff in the case includes a number of allegations in the lawsuit including that Pacific Western Bank allegedly failed to pay minimum wage, failed to pay overtime wages, failed to provide legally mandated meal breaks and rest periods, failed to provide accurate wages statements (with required itemization), failed to provide payment of earned wages when due, and failed to reimburse employees for required work expenses.

Violations of Labor Law: Pacific Western Bank

According to allegations made in the lawsuit, Pacific Western Bank violated the California Labor Code by failing to pay their employees proper wages. Additional allegations indicate the employer failed to provide accurate pay statements to their workers as required by employment law.

Employment Law Requires Accurate and Itemized Wage Statements:

According to the lawsuit filed, Pacific Western Bank violated numerous employment laws listed in California Labor Code Sections §§ 201, 202, 203, 226, 226.7, 510, 512, 1194, 1197, 1197.1, 2802, and the applicable Wage Order(s). According to California Labor Code § 226, every employer in the state of California must provide their employees with an accurate and itemized written wage statement showing gross wages earned (among other items). Plaintiffs in the case allege that Pacific Western Bank failed to provide the required wage statements identifying an accurate gross wage earned and net wage earned. Allegedly, the wage statements provided by Pacific Western Bank failed to identify the accurate total hours worked per pay period, and the calculations of total hours worked during the pay period did not match those listed on the statement.

If you have questions about California employment law or if you need to file an ERISA lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys can assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Wingstop Franchisee Faces Claims They Failed to Accurately Pay Employee Wages

According to a recent lawsuit, Sagar Holding Corporation (a Wingstop franchisee) violated labor law by failing to accurately pay employee wages.

The Case: Julianne R. Garcia v. Sagar Holding Corporation (Wingstop)

The Court: Superior Court of Los Angeles

The Case No.: 21STCV38872

The Plaintiff: Julianne R. Garcia

The plaintiff in the case, Julianne R. Garcia, claims that Wingstop employees were subjected to a rigorous work schedule that left them unable to take off-duty meal breaks. Wingstop employees were allegedly not fully relieved from work duties during their meal breaks and rest periods and were sometimes interrupted while on their breaks to perform tasks for their employer.

The Defendant: Sagar Holding Corporation (Wingstop)

According to the plaintiff, Sagar Holding Corporation (Wingstop franchisee) worked their employees on shifts longer than 5 hours without providing the required off-duty meal break and failed to provide their employees with a second off-duty meal period during workdays lasting more than 10 hours. Employees allegedly remained on call and basically on duty while they were taking their “off-duty” breaks, which is in direct contradiction to the legal definition of “off duty” in reference to meal breaks and rest periods.

Summary of the Case: Julianne R. Garcia v. Sagar Holding Corporation (Wingstop)

As the Wingstop franchisee’s standard policy allegedly required workers to forfeit their meal breaks and rest periods, they were due additional compensation under the law. However, the plaintiff in the case claims no additional compensation was provided. As such, the standard practice and policy of the defendant in the case led to additional claims of failure to pay minimum wage, failure to pay overtime wages, failure to provide accurate and itemized wage statements, etc.

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