Orange County Employment Lawyers Blog

California Supreme Court Clarifies Worker Retaliation Lawsuit Proof Burden

February 28, 2022 | by Nassiri Law

Claims of whistleblower retaliation filed under labor laws in California are going to be weighed by the standard set forth in that law, rather than the more stringent burden-shifting test that was laid out in the 1973 case of McDonnell Douglas Corp. v. Green. This was the recent ruling of the California Supreme Court in the case of Lawson v. PPG Architectural Finishes, Inc.

As our Riverside worker retaliation lawyers can explain, Labor Code section 1102.5 stipulates that employers can’t make or enforce any rule that prevents an employee from whistleblowing. Employers also cannot retaliate against a worker for whistleblowing. Whistleblowing is defined as the disclosure of information to a government or law enforcement agency when the employee has reason to believe the disclosure reveals a violation of state or federal law by the company.

In the following provision of the law, Labor Code section 1102.6, which went into effect in 2004, lawmakers stipulated that once the worker establishes a prima facie case that retaliation for whistleblowing was at least one contributing factor of the negative employment action, the proof burden is then on the employer, who must prove by clear and convincing evidence it would have happened for legitimate, independent reasons, regardless of the employee’s whistleblowing.

But despite this seemingly straightforward law, some California courts weighing whistleblower retaliation cases have been instead applying the proof burden set in the McDonnell Douglas ruling. This standard was established in the context of handling Title VII discrimination claims. The latter test – widely acknowledged to be much more employer-friendly than the standard set forth in California Labor Code – requires that once the employee proves unlawful retaliation, the employer can evade liability by simply showing the adverse action was taken for reasons that were non-retaliatory and legitimate. The employee still bears the burden of proving the reason the employer gave was merely a pretext for illegal retaliation.

The Lawson ruling is considered a victory for future plaintiff/employees. Continue Reading ›

Steps for Filing a California Employment Discrimination Lawsuit

February 22, 2022 | by Nassiri Law

The California Fair Employment and Housing Act, commonly called FEHA, forbids employers to discriminate against employees or job applicants on the basis of their position in a protected class. Protected classes include race, religion, color, ancestry, national origin, mental disability, physical disability, medical condition, genetic information, gender (including pregnancy, childbirth, breastfeeding, or related medical conditions), gender identity, sex, gender expression, sexual orientation, marital status, age (for those 40 and older), or veteran/military status.

As our Riverside employment attorneys can explain, those who have experienced the adverse impact of workplace discrimination in California can pursue accountability through the civil justice system by filing a lawsuit. Working with an experienced employment law team is essential.

Here, we discuss the basic steps for filing a California employment discrimination lawsuit.

Knowing Whether You Were Discriminated Against

The first step is assessing whether discrimination took place. Employers generally recognize that discrimination can lead to an employment lawsuit, so those who engage in it are often careful to avoid putting anything in writing or saying anything obvious to the job candidate or employee. Most workplace discrimination is subtle. But that doesn’t mean there aren’t signs.

An experienced employment law firm can help you make a case for employment discrimination by showing that certain groups were treated differently than others. It might also be established by showing there was an abrupt alteration in attitude toward an employee once the employer learned of the worker’s status in the protected group. Some indicators of workplace discrimination include: Continue Reading ›

More California Racial Discrimination Lawsuits Against Tesla on the Horizon

February 16, 2022 | by Nassiri Law

In California, it is unlawful for employers to discriminate against employees on the basis of their race or ethnicity. Workers targeted by discrimination ore harassment on these bases may have grounds to pursue a civil lawsuit for damages against their employer.

Racial discrimination is not a new problem in this country, but it’s been gaining greater awareness in recent years, with companies of all sizes facing repercussions for race-based harassment, discrimination, and retaliation.

Tesla is among the larger companies to face California racial discrimination lawsuits from former employees. You may recall that last year, a federal jury awarded $137 million a Black former employee of the car company, finding the company had ignored the severe racist abuse he endured for years from co-workers.

Now, the company says that it’s bracing for a civil complaint filed by the California Department of Fair Employment and Housing, which disclosed the notice of litigation in its annual regulatory filing with the Securities and Exchange Commission. Continue Reading ›

California Non-Disclosure Agreement Violated Labor Law, Court Rules

February 10, 2022 | by Nassiri Law

Nondisclosure agreements, sometimes also referred to as confidentiality clauses, are written legal contracts between employers and employees, drafted with the purpose of laying out binding terms and conditions. These can include provisions like prohibitions on disclosing confidential and proprietary information. However, as our Los Angeles employment attorneys can explain, they are too often used in ways that many believe exploit the power imbalance between workers and employers. In some cases, employees have been compelled to sign away their right to pursue claims for wrongdoings like sexual harassment in the workplace. They may also include non-disparagement clauses that prohibit workers from speaking negatively about the company. Where NDAs are found to be overly-broad in scope, they may be deemed unenforceable.

Recently, a California judge ruled that the confidentiality agreements required of Google’s employees were too broad – in violation of the state’s labor laws. The ultimate impact of that decision is more workers and ex-workers may find it easier to speak openly about these firms.

The Washington Post reports the case in question involved a Google employee who took the company to court, arguing the nondisclosure agreement the company asked him to sign blocked him from talking about his job to other potential employers. Effectively, he argued, this amounted to a non-compete clause. Such provisions are unlawful in California. A Superior Court judge sided with the employee on this point, though declined to make a decision on allegations these NDAs also prohibited whistleblowing and worker exchange of wage information – also illegal in California. Continue Reading ›

Understanding the Ministerial Exception in California Employment Lawsuits

February 7, 2022 | by Nassiri Law

Both federal and state anti-discrimination laws cover most employers in California. These laws prevent employers from firing or taking other adverse action against workers on the basis of their gender, race, ethnicity, pregnancy, nationality, disability, etc. However, as our Riverside employment lawyers can explain, religious institutions – including schools – are often protected by something known as the ministerial exception. What sometimes throws people is that:

One does not need to be an actual minister – or even administrator – for the exception to be applicable.
The ministerial exception may protect religious institutions from claims of employment discrimination that aren’t solely about religious discrimination.

The California Supreme Court in the past has expressed empathy for employees at religious institutes (mostly schools) unable to sue for employment discrimination under the law when they’d otherwise be able to, but for the ministerial exception. It remains a significant barrier to some claims.

Recently, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s dismissal of a racial harassment, discrimination, and retaliation claim by a California Catholic high school principal, who the court found qualified as a minister under the ministerial exception. Continue Reading ›

California Employer Retaliation Lawsuit Results in $150 Million Verdict Against Insurer

January 30, 2022 | by Nassiri Law

A finding of California employer retaliation has resulted in a $150 million verdict against an insurance company accused of firing a former executive for the firm as he prepared to testify in a discrimination case against them. It’s believed to be the largest verdict in Los Angeles County and the third-largest of its kind in the state.

The Los Angeles jury issued the verdict in Rudnicki v. Farmers Insurance Exchange following less than 60 minutes of deliberations.

According to Reuters, the employment lawsuit was filed in 2017, with plaintiff alleging he was scapegoated amid allegations of gender pay disparities at the company. He’d been employed by the firm nearly four decades, but was abruptly terminated just prior to a class action settlement, stemming from a lawsuit filed by female attorneys at the firm alleging a major gender discrimination gap in pay.

The former executive, who’d once served as the firm’s senior vice president, said the company had been concerned about what he might reveal about their gendered pay practices if he testified in that case. They reportedly blamed him for unlawful conduct and terminated him in an effort to discredit him. He alleged unlawful retaliation and wrongful termination in violation of California’s labor laws.

Lawyers for the defendant insurer insisted the plaintiff was fired because he:

Was making sexist, inappropriate comments to coworkers.
Failed to take appropriate action when female employees brought to light the underrepresentation of women in management at the firm.
Failed to properly handle/preserve pertinent legal documents, in accordance with company policy.

Jurors no doubt eyed critically the fact that the firing came almost immediately after he was deposed in the gender discrimination lawsuit, providing testimony that supported the plaintiffs’ allegations that the insurer’s pay practices were discriminatory against attorneys who were female. He was expected to testify to the same at trial. The case was later settled for $4 million.

Cooperating and assisting in a legal proceeding regarding discrimination is protected activity. Firing or retaliating against an employee for engaging in such proceedings is illegal, considered to be wrongful termination and retaliation. Continue Reading ›

Can My Boss Legally Cut My Pay?

January 22, 2022 | by Nassiri Law

The expectation when we accept a job is that our pay will increase incrementally the more experience and value we provide to the company. But as our Orange County wage and hour lawyers can explain, pay reductions can occur – and they aren’t necessarily illegal.

Whether you are an hourly or salaried employee in California, you are entitled to receive the agreed-upon, legal rate of pay for the work you’ve already done. Bosses have the discretion to reduce hourly pay and salary rates just as they can raise them. What they should not do, however, is reduce pay without giving advance notice to the employee. Employees should have the option to decline to continue working at such a rate. Just as an employee can’t force an employer to pay them a higher rate without consent, an employer can’t force an employee to work for a rate to which they didn’t agree. Once the work is complete, the employer must pay the last agreed-upon rate.

Further, that agreed upon rate can’t in any case be lower than the California minimum wage. As of Jan. 1, 2022, the minimum wage for companies with 25 or fewer employees is $14/hr, and $15/hr for companies with 26 or more employees.

When Would a Company Reduce Worker Pay?

Ideally, worker pay would only go up. However, the reality of business sometimes is that employers must reduce expenses in order to stay in business. Or sometimes, employees aren’t meeting expectations, and it’s costing the company money.

The two main reasons companies reduce pay:

The business is having revenue issues and is faced with the decision to either cut employee pay or shut down. Many employees will prefer to be paid at lower rates than lose their jobs, but it’s important that employers provide notice of the change so employees can make an informed choice for themselves.
A significant job change, namely demotions, warrants reduced pay. When a worker is demoted, the previous rate of hourly pay or salary may be above the reasonable rate for the new position.

All this said, a company cannot refuse to pay you the agreed-upon rate for hours you’ve already worked. Continue Reading ›

Payment in Pennies for Last Paycheck is Employer Retaliation, DOL Alleges

January 15, 2022 | by Nassiri Law

Employer retaliation in violation of federal law (punishing of an employee for engaging in legally protected activity) can take many forms – demotion, discipline, salary reduction, a job or shift reassignment. Sometimes it’s more subtle than that. And then other times, it’s a driveway full of oily pennies.

An employer in Georgia is facing a federal lawsuit for workplace retaliation for doing just that. The U.S. Department of Labor alleges the incident began with a former employee complaining to its offices about not receiving his final paycheck – an act that violates federal law.

The incident made headlines when the girlfriend of the former auto repair shop employee posted a video on her Instagram of the oil-slicked, coppery mess in their driveway. In total, there were 91,500 pennies dumped in the driveway, the employee’s final paycheck sitting on top, addressed with a handwritten expletive.

The DOL filed its federal lawsuit in U.S. District Court for the Northern District of Georgia, alleging the act was employer retaliation for a complaint the former employee made to federal authorities in January 2021 to report he hadn’t received his final paycheck for $915. His last day worked had been in November 2020. The pennies were dumped on the former employee’s driveway in March 2021. Continue Reading ›

California Pregnancy Discrimination Claims Continue to Rise

January 10, 2022 | by Nassiri Law

One would think that as workplaces become more progressive and inclusive that pregnancy-based discrimination would increasingly become an issue of the past. Unfortunately, pregnancy discrimination, harassment, and retaliation in California workplaces have continued to rise the past five years.

The U.S. Department of labor reports 85 percent of women will become mothers while working.

According to analysis by Bloomberg Law, the number of federal pregnancy discrimination lawsuits has been climbing since 2016, with a sharp uptick in 2020 and 2021, the latter potentially setting a new record – despite declining birth rates. As our Orange County pregnancy discrimination lawyers know, there are a few explanations for this. Among them:

Economic instability has always created vulnerability for pregnant workers. Employees who need parental leave and make use of employer-supplied health insurance benefits are inevitably going to cost employers more, at least in the short term.
When the economy is in flux, it can be tougher to find a new job after you’ve lost you’re old one. If you’re one of those who have lost their job unfairly – and are having a difficult time landing a new one – you may be more motivated to take legal action against your employer, partly because the economic damage suffered is more significant – especially if you now have an additional dependent.
In the earliest days of the pandemic, there was heightened concern that pregnant women might be at higher risk of infection and/or having severe reactions. Some adverse employment actions may have been taken with good intentions, but that doesn’t necessarily make them legal. Pregnant women were often among the first laid off at the start of COVID-related shutdowns.
When the U.S. Equal Employment Opportunity Commission restarted issuing Notices of Right to Sue back in August of 2020, there was a backlog that had to be processed fairly quickly. Individuals have 90 days to sue from the time they receive that green light. That could account for some of the uptick in 2020 cases.

Do I Have the Right to Sue for California Pregnancy Discrimination?

Pregnancy discrimination cases can arise from failure to hire, demotion, failure to reinstate after pregnancy/childbirth leave, termination, failure to accommodate (including lactation) and more. Discrimination based on pregnancy is often attributed to inaccurate stereotypes, including misguided notions that pregnant women won’t perform their duties as well and mothers won’t fully commit to their jobs because they have kids. Potential employers continue to illegally ask female applicants if they have children or intend to. They may tell wrongly current workers they can’t accommodate them in pregnancy because of the physical nature of the job.

There are both federal and state protections against pregnancy discrimination and retaliation. Continue Reading ›

California Meal & Rest Break Violations: Should Companies Also Face Pay Stub & Waiting Time Penalties?

January 7, 2022 | by Nassiri Law

The California Supreme Court is slated to decide a case expected to settle a long-running debate on whether waiting time penalties are recoverable for meal and rest break violations.

Employers, employees and labor law attorneys should be closely watching the case of Naranjo v. Spectrum Security Services, Inc. Petition for review of the case came after the Court of Appeal affirmed in part and reversed in part the original trial court judgment.

The state high court is being asked to resolve two primary questions:

Does a violation of California Labor Code Section 226.7 (requiring premium wage payment for meal and rest period violations) give rise to additional claims for paystub penalties and waiting time penalties when companies pay an employee regular wages for breaks?
What interest rate applies for unpaid premium wages under the law?

As our Orange County wage and hour lawyers can explain, it has to do with what additional penalties are owed when employers fail to meet their legal pay obligations to workers deprived of meal and rest breaks, as afforded under the law.

How This California Employment Law Case Arose

This is a class action lawsuit filed by the primary plaintiff on behalf of himself and other current/former employees of a private security company (government contractor) who alleged that violations of meal break and rest break laws entitled them also to derivative remedies under laws pertaining to wait time penalties and pay stub penalties. Continue Reading ›