Orange County Employment Lawyers Blog

Uber Settles California Driver Misclassification Lawsuit or $20 Million

March 12, 2019 | by Nassiri Law

A long-running legal battle with California and Massachusetts drivers for Uber has settled with the ride-sharing tech firm paying a $20 million settlement – but no deal to name them as employees versus independent contractors. Los Angeles employee misclassification attorneys know that has many legal analysts opining Uber was the one that actually won big this round.

The drivers likely acquiesced to this deal, rather than pushing ahead, after a federal appellate court ruled last September that drivers could not join together for a class action, and would instead be required to individually arbitrate each claim. As TechCrunch.com reported, that diminished a lot of the power plaintiffs in that original case had.

As part of the labor and employment lawsuit settlement, Uber has agreed to some other concessions as well. For example, Uber agreed to alter the way it removes drivers from the service, in turn boosting the transparency of the process. In a now-published policy, the tech firm details how it removes drivers from its rosters. The company also plans to institute a means for booted workers to appeal. Drivers will also have the chance to take classes offered by the firm to learn how to improve the quality of rides for customers.

Why Employee Classification Was a Key Issue for Uber Continue Reading ›

U.S. Supreme Court Allows 9th Circuit’s Ruling on CA Trucker Classification to Stand

March 10, 2019 | by Nassiri Law

When it comes to employee misclassification, the trucking industry was perhaps one of the worst offenders, driven in part by widening profit margins – reducing wages and benefits for would-be workers as well as liability for trucker negligence in crashes. But last year, the U.S. Court of Appeals for the Ninth Circuit ruled in California Trucking Association v. Su that proper classification of commercial drivers per the California’s Labor Commissioner’s Department of Industrial Relations’ reliance on the common law standard could not be preempted by federal law. Los Angeles employee misclassification attorneys know this was a major win for commercial truckers across the state. Now, with the U.S. Supreme Court’s recent declination to hear the California Trucking Association’s appeal of that ruling, it is a win for truckers nationally as well.

The case became one of the majority the high court rejects without further explanation (i.e., “Certiorari Denied”). Of the 7,000 or so cases the SCOTUS is asked to review each year, it only accepts somewhere between 100 and 150. (At least four justices must agree in order for the case to be accepted.)

The CTA argued in its appeal that the common law standard used by the state’s DIR was not consistent with certain aspects of deregulation per a 25-year-old federal aviation law. Further, the CTA argued that owner-operator truckers were to be classified as independent contractors, meaning they were paid set rates (not necessarily aligned with minimum wage and overtime hours, etc.) and that the drivers were to be responsible for their own expenses. Continue Reading ›

California Employee Seating Lawsuit Not Limited to Cashiers

March 9, 2019 | by Nassiri Law

A number of California employment lawsuits have been won in recent years by cashiers at retail locations seeking a place to sit at work. The door was first opened in 2010 when a pair of California Court of Appeal rulings allowed cashier plaintiffs to seek remedy when employers failed to provide reasonable seating.

In 2016, the California Supreme Court held in Kilby v. CVS Pharmacy Inc. that when tasks performed at a given location reasonably permit seating AND providing a seat wouldn’t interfere with the performance of any other tasks that might require standing, “a seat is called for.” Furthermore, if an employer argues no suitable seat is available, the burden is on the employer to prove unavailability.

As our Los Angeles labor and employment attorneys can explain, this provision is most often applied to cashiers, tellers and others who frequently work in stationary locations, but it’s not necessarily limited to the retail or banking sector or solely to cashiers. Continue Reading ›

California Wage Order 7 Class Action Against Orange County Retailer Reinstated by Appeals Court

March 8, 2019 | by Nassiri Law

Does California’s Wage Order 7 require retailers to pay employees required to call ahead two hours before their “on-call shift,” even if those workers aren’t required to come in to work? That was the question recently at issue in the case of Ward v. Tilly’s Inc., wherein a California appellate court (in a divided opinion) reinstated a class action lawsuit against an Orange County retailer for alleged failure to do so.

According to the complaint, workers say they were required to call in two hours before each previously-scheduled “on-call shift.” Orange County wage and hour lawyers know this is common practice among retailers, designed to optimize scheduling in an industry where staffing needs can fluctuate not only seasonally, but weekly, daily and sometimes hourly.

In this case, the employer in question did not consider those employees who called in an told not to report to work as having “reported for work” within the meaning outlined by the relevant Wage Order 7. The employees disagree.

The trial court sided with the employer and dismissed the claim, finding the only way an employee could “report for work” was by physically showing up for work at the store. Continue Reading ›

California Courts Nix Non-Solicitation Clauses in Employment Agreements

March 6, 2019 | by Nassiri Law

Non-solicitation clauses in California employment agreements have been deemed illegal in California per two recent court decisions. This includes out-of-state employers with California employees. Orange County employment attorneys are encouraging companies to review their employment agreements and consider removing non-solicitation clauses that may be in conflict with state law.

Non-solicitation agreements are provisions in employment contracts (sometimes standalone contracts) wherein an employee agrees he or she will not try to solicit customers or clients of the employer for his or her personal benefit or for that of a competitor if/when he/she leaves the firm. Non-solicitation agreements can also encompass an employee’s agreement not to solicit other employees to leave once he/she quits.

Restrictive Covenants in California Labor Code

California has some of the strongest worker rights provisions in the country. For instance, California Business and Professions Code section 16600 states that all employment contracts that would keep anybody from engaging in a lawful profession, business or trade is void.

Courts in California have long held that it is against public policy to restrict former employees’ right to work for competitors. Further, state courts have soundly rejected the argument put forth by the inevitable disclosure doctrine, which asserts employees who immediately go work for a competitor is going to inevitably disclose or use trade secrets of the former employer. In the 2008 case of Edwards v. Arthur Andersen LLP, the California Supreme Court ruled previous workers are entitled to solicit the clients of former employers – assuming they don’t do so using their former employer’s trade secrets or confidential information while doing so.

This ruling marked a shift from the 1985 ruling by a California Court of Appeal in Loral Corp. v. Moyes, in which justices declined to void as unenforceable an employee agreement restriction indicating the employee was not allowed now or in the future to damage, interfere, impair or disrupt the business of the former employer by interfering with or “raiding” its employees, business relationships, agents, representatives, customers, vendors, etc. The clause created an express exception for being employed by or engaging with a competing business. The court didn’t expressly allow employment contracts with non-solicitation agreements, but rather ruled the one in question wasn’t an obvious, unenforceable restriction on fair trade. Continue Reading ›

Federal Court “Tips” The Scales in Favor of Restaurant Workers

March 4, 2019 | by Nassiri Law

Back in November, the U.S. Department of Labor rescinded the controversial Obama-era 80/20 Rule, dictating how restaurants paid tipped workers, barring employers from taking tip credit from workers who spend more than 20 percent of their time doing non-tipped work. Now, Orange County fair wage attorneys understand a federal judge for the U.S. District Court for the Western District of Missouri rejected the DOL’s guidance, finding it “unpersuasive and unworthy.”

The judge further stated that the Labor Department’s issuance of an opinion letter abruptly shifting gears on this issue after 10 years of consistently construing such regulation as limited by the 80/20 rule wouldn’t persuade the court to apply a new interpretation of litigation. Noting the DOL gave zero reasoning or evidence of any in-depth consideration for reversing its position, and it doesn’t stand up to the standard set by the U.S. Supreme Court, and characterized the November rule change as a “sudden surprise” and an “unjustified departure” from the agency’s previous guidance.

Per the Fair Labor Standards Act, 29 USC s. 201, employers must pay workers at least $2.13 hourly for their wages, then take a tip credit in order to make up the difference between the worker’s wages and federal minimum wage. The 80/20 rule arose because tipped workers were spending an extensive amount of time carrying out non-tip-generating duties, like rolling silverware or setting tables. The updated guidance from the DOL was that the agency was no longer going to limit the amount of time workers could spend performing those duties. Continue Reading ›

Wave of Wal-Mart Gender Discrimination Lawsuits in California to Follow Flood of Florida Claims

March 1, 2019 | by Nassiri Law

Gender discrimination lawsuits are piling up once more against retail giant Wal-Mart, with nearly 100 unfair wage and hour claims filed in Florida and more expected in both California and Ohio later this year. Orange County gender discrimination lawyers are quite familiar with a long history of allegations against Wal-Mart by female workers alleging they were discrimination against for years – in some cases decades.

Perhaps most notable was the 2011 case of Wal-Mart v. Dukes, in which late U.S. Supreme Court Justice Antonin Scalia, writing for the 5-4 majority, reversed the certification of a national class of female employees of Wal-Mart, finding it inconsistent with Federal Rule of Civil Procedure 23(a), which requires those seeking class certification to prove the the whole class of plaintiffs has either common questions of law or fact. Despite basically being too expansive, Justice Ruth Bader Ginsburg’s dissent described the company’s corporate culture as being “suffused” with gender bias.

Since then, the namesake plaintiff of the Dukes case has died. But many of the women who were originally part of that class she filed originally in 2001 are now in this action. When Dukes case was dismissed, the remaining claims were left under the consideration of the Equal Employment Opportunity Commission. Late last year, the EEOC granted them permission to sue for gender discrimination, citing violations of Title VII of the Civil Rights Act of 1964. That federal law prohibits employers from discriminating against workers on the basis of (among other things) their gender. Disparate treatment in the workplace resulting in systemic adverse treatment of a protected class is considered grounds for a Title VII claim.

Orange County Employment Attorney Talks Claims for Employer Retaliation

February 26, 2019 | by Nassiri Law

It is no secret that businesses do not want to pay out more in liability damages than they have to. Larger firms have entire departments dedicated to reducing liability, which usually include human resources professionals and legal advisers/consultants. Orange County employment lawyers know this isn’t necessarily a bad thing – if the goal is reducing the discriminatory and unlawful actions that spark workplace litigation in the first place, such as discrimination or wrongful termination.

Unfortunately, far too many companies retaliate against employees for engaging in activities protected under federal and state law – such as filing a claim for Orange County workplace discrimination or sexual harassment or cooperating with outside investigators examining such claims.

Retaliation involves some type of unlawful adverse employment action carried out by an employer with the intent of punishing a lawful action by an employee (often one that hurts the company’s bottom line or reputation). The California Department of Industrial Relations has a specific unit dedicated to Retaliation Complaint Investigation. Continue Reading ›

California Cancer Discrimination: Employer Can’t Terminate on Basis of Diagnosis

February 26, 2019 | by Nassiri Law

A cancer diagnosis is often one of the most pivotal points in a person’s life, not only because it causes one to face possible mortality, but because it is expensive and often impedes a person’s ability to work and/or care for their family. However, it should not be the basis on which you’re fired. If you believe it is, an Orange County cancer discrimination attorney can help you determine whether you have a viable case and lay out your legal options.

Rarely will an employer say, “We’re cutting your hours because you have cancer.” Instead, they will look for other excuses. They will say accommodations aren’t possible without hardship (when that’s not really true). They will say you weren’t performing according to company standards – even if you’ve had great annual reviews until that point. Sometimes they’ll start giving you poor reviews to leave a paper trail so they have a leg to stand on. This is why from the moment you suspect an issue, you should start documenting everything too.

Late last year, a Catholic school tried to argue that it had terminated a 5th grade teacher following her cancer diagnosis/revelation she’d be absent much of the school year because of something called the ministerial exception. This is not to be confused with ministerial v. discretionary duties, for which dispute can arise when civil tort plaintiffs suing government agencies for negligent acts/omissions by employees want the court to find the employees’ duties were “ministerial,” as in directed by the government absent their own discretion, making the government liable. In this case, Biel v. St. James School, the question was whether the teacher was a religious ministerial employee.

Why would this matter for someone with breast cancer? Continue Reading ›

What Kind of Damages Will I Receive in a California Employment Lawsuit?

February 23, 2019 | by Nassiri Law

Working with an experienced Los Angeles employment lawyer, it is absolutely possible to prevail in a California employment lawsuit. The amount of damages (monetary compensation) you receive as a result of winning your case will depend on a myriad of factors. Because your attorney is probably working your case on a contingency fee basis (paid a portion of awarded damages if outcome if successful, paid nothing if not), he or she is likely to consider and discuss all of this with you before you even begin the process, as potential valuation of a case can determine whether it’s worth pursuing in the first place.

Your Los Angeles employment lawyer can explain, there are two basic types of damages that can be awarded in California employment lawsuits involving discrimination or unfair wages. These are compensatory and punitive.

Compensatory damages will cover workplace discrimination victims for out-of-pocket expenses and actual losses. These involve both tangible losses like the amount of wages lost, medical expenses required or job search costs incurred. It may also involve intangible losses like mental anguish or loss of life enjoyment. Punitive damages, on the other hand, are intended to penalize the employer whose actions are deemed reckless and malicious.

Some examples of compensatory damages awarded in California employment lawsuits (including discrimination and wage-and-hour) include:

Lost wages/benefits
Costs for retraining/job search
Compensation for physical pain, emotional distress, loss of professional reputation, etc.
Attorney’s fees