California Employment Law Attorney Blog | Los Angeles Discrimination Lawyer | CA Wage and Hour Law Firm

Teacher fired after helping students create victim Fundraiser

2012-05-18T15:00:00Z

Great teachers in California and states across the nation walk a fine line between helping their students learn about current events, engage in advocacy and understand the role they will play in society throughout their lives. This line is not clear, however, and some teachers get caught in the grey area, some suffering negative consequences such as wrongful termination for "stepping too far."

One teacher was recently fired after helping her students who wanted to advocate in the wake of the Trayvon Martin incident. Martin was a teenage boy who was shot by a neighborhood watchman. The criminal case has not come to a close on whether it was a case of self-defense, mistake or manslaughter, but whatever the outcome is the case has created intense emotions in people across the nation.

]]> The students at this particular school wanted to organize a fundraiser in which they would wear a hoodie like the one that the teen was wearing the night he was shot. When the school learned that the teacher had helped the students organize the event, they terminated her employment. The termination has created its own wave of responsive emotions. Over 225,000 people have already signed an online petition that seeks to reinstate the teacher.

A former ethics officer for the San Diego School District in California said that teachers want to help their students become good citizens while remaining nonpartisan. This is a very difficult task, she said. "Critical thinking, persuasion -- those are all things citizens need, and they're not controversial," she said. Some of the best teachers are the ones that work hard to do more than reiterate the curriculum.

Source: The Atlantic, "Michigan Teacher Fired for Organizing Trayvon Martin Fundraiser," Emily Richmond, May 7, 2012

Email joke creates a $200,000 wrongful termination settlement

2012-05-16T15:39:37Z

Most employees understand that the use of company email has only a small amount, if any, of privacy protection or expectation. Emails through a company's email system are reviewable by an employer and could even become public knowledge to other employees. Since emails sent using one's work email lack a level of confidentiality, any message could be shared, including to an unintended reader.

When an employee reads an email in which they are the subject or one that makes them uncomfortable, the first step is often to take it to a representative in the human resources department. This chain of events recently occurred when the misuse of a work email was reported; the reporting employee says he then suffered retaliation, and the incident ultimately led to a wrongful termination lawsuit.

]]> The city employee was involved in a prank email that was sent by his supervisor. The employee reported the email to human resources and was later terminated. The employee claims that after his report to human resources, he received a lower performance rating, which ultimately led to his termination. The employee was terminated during a large layoff and the employer claimed the employee's termination was only the result of a workforce reduction and not as a retaliatory act.

The terminated employee filed a wrongful termination lawsuit against his employer. At the conclusion of the trial, the jury found in favor of the employee. The finding that the employee was wrongfully terminated was followed by a verdict that awarded the plaintiff $265,000. The parties decided to forgo a later requested appeal and put a final end to the case through a settlement for $200,000. Although the employee prevailed at trial, he was out of work for 18 months following his termination.

Source: Tucsoncitizen.com, "Scottsdale to pay $200,000 in termination settlement," Peter Corbett, May 11, 2012

Overworked employees fight back and sue for unpaid overtime

2012-05-11T15:36:12Z

Our economic recession has been felt by everyone. Many employees lost their jobs. What happens to the work that was usually completed by the now terminated employee? Unfortunately in a recession, when companies cut jobs and employees, the duties of the vacant job are still present but the job position is not refilled. Therefore, other employees take on the extra responsibility and work of the vacant job positions. Some of the employees who absorbed the extra work and extra hours have been not been properly paid for their efforts and are claiming wage and hour violations.

It was reported that in 2011 an average of $420,000 of revenue was earned per employee by larger companies -- commonly S&P 500 Firms -- by having employees absorb additional work without appropriate compensation.

]]> Both current and former employees are fighting back and have filed wage and hour violations in federal courts across the country. The practice by these companies to push employees to perform essentially two jobs for the same pay can be a very lucrative practice for the employer but damaging to the employees working unpaid overtime.

Many times the employer will classify an employee in an exempt status, which prohibits the employee from getting overtime pay, when the job position is actually a non-exempt position that would provide the employee with overtime pay benefits.

The Department of Labor has recognized this employer practice and has recovered back pay that amounted to $225 million in the 2011 fiscal year. Many times employees do not report this type of employer practice because the immediate impact on the employee may seem minor. The reality is the employee is being denied pay they have earned, which can amount to larger sums and benefits over an extended period of time.

Source: The Fiscal Times, "Managers Sue for Overtime, Citing Unfair Practices," Michelle Hirsch, May 9, 2012

Employee awarded $5 million after enduring religious ridicule

2012-05-09T19:38:06Z

Have you ever prayed during work or requested time off due to a religious belief? Most employees understand that their employer cannot discriminate against them based on their religious beliefs, but what happens when fellow employees are the ones who are discriminating and harassing the employee? The answer is that is that it could be considered a hostile work environment and the employer could be held responsible for the discrimination and harassment.

A former employee of AT&T recently won her employment discrimination claim filed with the Equal Employment Opportunity Commission. The employee converted to the Islam religion in 2005 and claims she endured harassment since her conversion. The employee endured the harassment from her co-workers, but when she was harassed by her supervisor in 2008 the employee decided to stand-up for her rights.

]]> In 2008, the employee's supervisor pulled the employee's head scarf off of her head and exposed her hair. The employee contacted the employer's helpline and requested sensitivity training in her department. The employee claims the hostile work environment did not change. The lack of change and continuing hostile work environment prompted the employee to file the complaint with the EEOC. The stress that was created by the hostile work environment caused the employee's inability to return to work. The employee was later fired and was out of work for a total of nine months.

The employee won her discrimination lawsuit and was awarded $5 million. The employee also won an additional award of $120,000 for lost wages and actual damages. Actual damages are financial compensation for things that can be proved as a loss.

Source: The Washington Post, "Muslim woman wins $5 million in punitive damages from AT&T in workplace discrimination suit," May 5, 2012

Failure to pay overtime to 4,500 employees costs Walmart $4.8M

2012-05-02T15:13:46Z

Walmart managed to make the news once again for a labor dispute. This time, the wage and hour claims were based on the corporation's failure to pay overtime to approximately 4,500 employees who worked in asset protection and the vision center.

The Labor department ordered the corporation to pay approximately $4.8 million to the vision-center managers and asset-protection coordinators who were misclassified as exempt employees instead of non-exempt. Employees classified a non-exempt would be eligible for overtime pay under federal requirements.

]]> The claims arose in 2007 after three years had gone by under the misclassification. Since that time, the federal agency has been negotiating over how much money was owed in back wages. They eventually settled on the $4.8 million sum which would equate to approximately $290 to each vision-center manager and around $2,300 to each vision-center manager. Not only was Walmart ordered to pay the wages that were due, but they were fined $464,000 for the violation.

"Let this be a signal to other companies that when violations are found, the Labor Department will take appropriate action," said the Labor Secretary Hilda Solis. An employee does not have to wait for the Labor Department to investigate a company's failure to follow the wage and hour requirements. Any individuals who thinks that they are being taken advantage of by being forced to work longer hours without appropriate compensation, to work through their lunch period or are not given the appropriate meal and rest breaks can seek the assistance of an attorney experienced in these types of claims.

Source: newser, "Walmart Slapped With $4.8M Bill for Unpaid Wages," Kevin Spak, May 2, 2012

Wrongful termination cost Bank of America $1 million

2012-04-30T14:54:56Z

Not all corporations are bad, but there are times when leaders do things that are illegal, that could harm the public, their shareholders or individual employees. It takes a strong person to speak up about these actions, something we call "blowing the whistle." Employees who act as whistleblowers are doing the right thing, but sadly sometimes the right action ends up costing them their job. Wrongful termination is illegal in California, but even though it is illegal it often happens to many employees.

A former employee for Countrywide Financial was hired to investigate possible instances of mortgage fraud. She did her job and discovered evidence that indicated fraud conducted by several lenders. The employee informed her employer of her findings and urged an increased inquiry. Later, Countrywide was taken over by Bank of America, who agreed to the $25 billion, five-bank settlement after claims of mortgage servicing fraud.

]]> After Bank of America took over Countrywide, the employee was absorbed and began working as an employee for Bank of America. The employee continued to notify her superiors about the evidence she discovered. The employee also continued to push for an expanded investigation into her findings.

Shortly after she was absorbed as an employee for Bank of America she was terminated. The employee considers being fired by Bank of America a wrongful termination and challenged the way she was forced to exit the company. Since her wrongful termination, the former employee has been working as vice president for a California credit union.

Now after a three-year long battle, the U.S. Department of Labor's Occupational Health and Safety Administration ordered her employment reinstatement with her former employer, Bank of America. In addition to the reinstatement, the employee was also awarded $1 million in damages related to lost wages and related expenses. The Administration's decision was made approximately one year ago, but Bank of America's appeal of the decision remains pending.

Source: Reuters.com, "Countrywide whistleblower sees no change in financial sector," Emily Flitter, April 26, 2012

Officer, soldier and transgender woman's EEOC complaint moves forward

2012-04-27T15:00:00Z

Advocates for the lesbian, gay, bisexual and transgendered community have fought hard for not only rights but respect in an employment setting, but the law has been slower to follow and at times unsatisfactorily unclear. The laws surrounding the T in LGBT have been less than clear when it comes to protection from discrimination, but this week a transgender woman was allowed to file a federal complaint against the U.S. Bureau of Alcohol Tobacco, Firearms and Explosives for sexual orientation discrimination.

The woman was a former soldier and police officer who had applied for a job in 2010 with the ATF at a ballistics lab in Walnut Creek. When she submitted her application, she did so as a man. While the application was pending, she transitioned from man to woman, notifying the lab of the transition.

]]> The woman's application was denied shortly after. The alleged basis for the denial was that the position no longer existed due to certain budget cuts. Much to her surprise, she later learned that the position had in fact been filled but with another applicant.

A second denial came when she attempted to file a complaint with the Equal Employment Opportunity Commission in 2011. When the complaint was denied by the EEOC she was told that the complaint process did not cover transgender individuals, something that has been inconsistently applied across the country.

A representative with the EEOC clarified this week on a national platform that the protections under federal employment law -- specifically Title VII of the Civil Rights Act -- apply to transgender individuals despite what the specific office told the former officer. The EEOC corrected the denial and allowed the woman's claim to go forward under anti-discrimination statutes.

The California police officer is not alone in her situation. Those transgender men or women who have fallen through the cracks of inconsistency have the right to fight back against discrimination.

Source: Los Angeles Times, "Ruling allows transgender woman to sue for job discrimination," Sam Quinones, April 24, 2012

NASA retaliation suit for intelligent design advocate

2012-04-25T17:31:03Z

Earlier this year a NASA employee was terminated from his position as a computer administrator. The former employee claims the termination was the result of his views on intelligent design. The former employee has filed a lawsuit against his former employer. The lawsuit claims several wrongdoings by the employer and includes the claim of retaliation. Laws differ from state to state, but employees in every state are protected in a similar way by a body of labor laws.

California employment laws state that employment retaliation is illegal. Workplace retaliation is prohibited by an employer in relation to an employee who is performing a protected activity. Employment retaliation occurs when an employee is terminated or disciplined by their employer in relation to a protected right. Employment retaliation can occur for many reasons, one of which is to discourage other employees from acting in a similar manner.

]]> The former employee claims his termination was a retaliatory action based on his intelligent design belief. The employer unsurprisingly contradicts the claims that the employee's termination was based on religious belief, but that it insteade was the result of his combative demeanor and a lack of skills.

The closing arguments in the five week trial have been made and the lawsuit is pending a final decision by the presiding judge. The final decision will be made by the presiding judge because both the plaintiff and defendant decided to waive a jury trial. The impact of this lawsuit involves issues of religion, employment retaliation, first amendment and wrongful termination. The concepts in the lawsuit have drawn the attention of proponents on all sides of the issues involved.

Source: Seattlepi.com, "Ex-NASA worker: Firing was over intelligent design," Gilliam Flaccus, April 16, 2012

Teacher fired in California for video made before career began

2012-04-19T15:12:58Z

In 2009 a young woman became a science teacher in Southern California. She was hired to instruct seventh and eighth grade students in the Oxnard School District, but it was choices that she made before becoming a teacher that the district trustees said acted as the basis for her termination from employment.

A video surfaced earlier this year that depicted what is being called a pornographic film. The video could be accessed through adult sex websites and although it was brought to the attention of the school district officials in March, it was produced long before. The district officials claim that the teacher appeared in the video although the extent of her role has not been reported.

]]> When the video was brought to the trustee's attention, the teacher was suspended from her duties and placed on paid administrative leave. On Wednesday, April 18, the trustees held a closed session in which they voted to terminate her employment with the school district.

The final outcome of the teacher's situation has yet to be determined as she has 30 days to appeal the decision. Even if an appeal is denied, it does not mean that everything is finished. If a person feels that they were wrongfully terminated, they can discuss any possible recourse that they may have with an experienced employment attorney. Imagine building a career that you love, that you put all of your effort into and that you are quite good at. What would you do if it was all ripped away for something that happened before your career even started?

Source: abc news, "Southern California Teacher Fired Over Porn Video," April 19, 2012

California Supreme Court clarifies required meal breaks

2012-04-17T18:34:21Z

California law mandates that employees must be given meal breaks. This law has been the basis for a number of multi-million dollar lawsuits against major employers claimed to have committed wage and hour violations, including Wal-Mart Stores Inc., Target Corp. and Valero Energy Corp.

Like all laws, the meal break requirement is more complex than "they are required," and it seems as though employers need constant reminding of employee rights or clarification when they want to avoid lawsuits. The California Supreme Court has once again made a ruling that is supposed to clarify the law but that some say actually "muddies the waters."

]]> The state's highest court - based in San Francisco - ruled this past week that workers should have a period free "of all duty, with the employee thereafter at liberty to use the meal period for whatever purposes he or she desires."

The ruling seems simple enough: An employer must give workers designated meal breaks, and they must not require that the employee participate in any work-related duty during that time, but the employee can voluntarily choose to complete work-related duties.

Voluntary work is not actionable, right? What about an employee who is not directly instructed to complete work-related duties but feels serious pressure to do so? Where does this employee lie in the "cut and dry" explanation? What about an employee who works hourly, has a project deadline but is not given enough time to complete the work project? Is that an instruction to work through lunch or a voluntary act? It is often questions such as these that lead to wage and hour lawsuits.

Source: Businessweek, "California Employers Must Give Workers Breaks, Court Rules," Karen Gullo, April 12, 2012

Update: Protestors rally for wrongfully terminated man with HIV

2012-04-13T21:37:40Z

In our prior post, we discussed the issue of a former employee of a prominent California restaurant who filed a wrongful termination lawsuit against the employer restaurant. The wrongful termination lawsuit claims the former employee was fired after the employer found out he was HIV positive. The lawsuit has sparked protest against the restaurant, which is indicative of the social concern related to this incident.

Protesters have united in a peaceful protest in the front of the prominent California restaurant, which has prompted a great deal of media attention. The lawsuit claims the wrongful termination occurred after the former employer provided the employer with a note from his doctor regarding his chronic medical condition that would require life-long treatment.

]]> The doctor who issued the note is known within the local community for treating a large amount of HIV patients. The restaurant claims it did not know the former employee was HIV positive until it received correspondence from the former employee's attorney. The employer claims the termination was not due to the former employee's disability because they did not know about disability at the time of the former employee's termination.

The former employee's attorneys claim the California restaurant had discriminatory motivation behind the termination. The former employee's attorney further contends that the employer had a requirement to engage in a good faith interactive process with the former employee after the disclosure of his disability.

The wrongful termination lawsuit is aimed at vindicating the former employee and also making a larger statement that it is not okay to terminate employment because of HIV. Due to the former employee's termination, he is now unemployed and homeless. After he was terminated, he lost his car and apartment due to financial issues and has suffered emotional distress from the incident.

Source: NBClosangeles.com, "Protesters Rally Around HIV-Positve Busboy Suing For Wrongful Termination," Irene Moore, April 12, 2012

California busser claims wrongful termination because HIV positive

2012-04-11T13:54:28Z

California employment is considered employment at will. The employment at will doctrine states an employer and employee are free to stop the employment relationship at any time for no reason at all. This is a general statement and there are exceptions to this general rule. Exceptions to this general rule lead to wrongful termination lawsuits. This type of lawsuit has been filed against a prominent California restaurant by a former employee.

The wrongful termination lawsuit stems from the employee's claim that his termination from the California restaurant was due to his physical disability. The former employee was employed at the restaurant for five months prior to his termination. The former employee worked as a busser, was fully qualified and was satisfactorily performing his job. The former employee was diagnosed with HIV and his required medication caused him to leave work because he was sick.

]]> When the former employee left work because he was sick, he claimed that the employer told the former employee not to report to work for the remainder of the week. It was reported the employer denied the former employee reasonable accommodations, inquired about non-work related information about the former employee's disability and then terminated the former employee.

The employer claims it was not aware of the former employee's disability and his termination was due to a standard reason. The employer claims the termination was due to the former employee's inability to perform his work duties in a professional manner.

The wrongful termination lawsuit claims the former employee's termination was based on his HIV disability. For the former employee to prevail in this lawsuit, he will need to prove his termination was motivated by his disability and not related to his job performance.

Source: Justice News Flash, "The Ivy Faces Wrongful Termination Lawsuit Filed by Man with HIV," Nicole Howley, March 30, 2012

California onion farmers suffer wage and hour violations

2012-04-06T15:51:07Z

Agriculture workers in California are claiming a wage and hour violation by their employer has occurred for the past four years. The wage and hour violation claims are the foundation for a federal lawsuit against a large California farm and its labor contractors.

The lawsuit was filed by two agricultural workers but claims several hundred workers are employed in similar conditions. The agricultural workers are onion farmers who have suffered a wage and hour violation by being underpaid. The workers claim they have received less than minimum wage for the last four years.

]]> In addition to the below minimum wage payments, the workers claim they were forced to live in poor conditions. Examples of the poor living conditions were workers living in cars or improvised camps. The workers lived in these conditions on the edges of the onion fields. It is reported that low payment and unsafe conditions are common for many California agriculture workers.

Wage and hour violations can have serious consequences for employers, but we cannot forget that the workers who rely on every penny earned during long days feel the effects in a very personal way. These types of violations can be caused by deceptive timekeeping, failure to provide meal and rest periods and/or failure to pay in accordance with minimum wage requirements.

Although the defendant employer claims safe working environment and wage and hour requirements are met and in accordance with state and federal compliance, the result of the lawsuit could impact the plaintiffs as well as similarly situated agriculture workers. The lawsuit is currently pending in the initial stages of the litigation process.

Source: The Republic, "2 Calif. onion workers sue farm alleging wage violations, squalid conditions," April 2, 2012

Whistleblower blows whistle on Takeda's Actos

2012-04-02T15:00:00Z

Takeda Pharmaceutical's U.S.-based unit did not report heart failure cases that were associated with Actos, a diabetes drug manufactured by the company. The dangerous drug claims were made in a whistleblower lawsuit filed by a former Takeda medical reviewer. The former medical reviewer alleged in her complaint that Takeda gave its medical examiners improper instructions regarding changing their professional opinion about the problems Actos caused.

The whistleblower and former medical reviewer protested and was terminated shortly after. She stated in her complaint that Takeda wanted to "make it appear" that Actos was safer than Avandia, a diabetes drug manufactured by GlaxoSmithKline.

]]> The former medical reviewer filed her lawsuit on the federal False Claims Act and other statutes. She stated that Takeda's false claims caused hundreds of millions in damages. Should she prevail in the whistleblower lawsuit, she stands to win 15 to 30 percent of the recovery award.

The FDA ordered GlaxoSmithKlyne and Takeda to put the strongest warning on Actos and Avandia, making sure to warn consumers that they may suffer from congestive heart failure while taking the drug. Congestive heart failure happens when a patient's heart doesn't pump enough blood and the patient is taking Actos and Avandia. The whistleblower also alleged in her complaint that Takeda "downplayed" additional data that suggests that Actos may have a link with bladder cancer.

When a person "blows the whistle" on illegal or unsafe procedures or actions by a company, the law protects that employee from retaliatory actions such as wrongful protection. Those who suffer a retaliatory act have the right to seek compensation in a court of law.

Source: Salient News, "Takeda Hid Actos Bladder Cancer Risks, Whistleblower Case Says," Nina Rotz, March 12, 2012

California police officer discriminated against during work, Part 2

2012-03-30T14:50:32Z

In our prior post, we discussed a California police officer's claims of sex discrimination and retaliation following a domestic abuse incident she responded to that resulted in her shooting a dog. The first post focused on the discrimination, but there was a second part of the story. In the days following the administrative review of her termination case, the police officer was charged with animal abuse for the shooting of the Chihuahua.

The animal abuse charge was filed within days of the expiration of the statute of limitations, which is the time in which a lawsuit can be filed against someone. The police officer claims the animal abuse charge is a clear sign of retaliation, which is an illegal act by an employer under California laws.

]]> The police officer gains support for her retaliation claim from similar situations that had different results. The police officer claims the prosecutors, who filed the animal abuse claim against her, recently decided not to file criminal charges against other California police officers who shot a dog. The police officer claims the prosecutor's recent decision clearly indicates the animal abuse charges filed against her are retaliation for her discrimination claim.

The police officer's discrimination and retaliation claims against her employer are currently pending. The lawsuit claims gender discrimination, retaliation and defamation. The police officer is seeking lost wage compensation, emotional distress damages and an undisclosed amount of punitive damages. The defendants named in the lawsuit are the Sherriff's department, the local prosecutor and the owners of the Chihuahua. As a result of the retaliation and discrimination against the police officer, she and her daughter have been ridiculed in her local community. The current status of the animal abuse charge was not reported.

Source: Southeast Missourian, "Deputy who shot, killed dog last year sues sheriff's department," Melissa Miller, March 25, 2012