Orange County Employment Lawyers Blog

Fredrickson v. Starbucks – 9th Circuit Sends Barista Tips Tax Lawsuit Back to State Court

November 8, 2016 | by Nassiri Law

Starbucks Corp. baristas objecting to company policy to withhold taxes from their pay based on estimated tips – rather than actual tips – will have to take their dispute to state court.

The U.S. Court of Appeals for the Ninth Circuit decided in Fredrickson v. Starbucks Corp. that it lacked subject matter jurisdictions over plaintiff’s claims. Specifically, the federal-state comity doctrine – which is the idea that courts shouldn’t act in a way that demeans the jurisdiction, laws or judicial decisions of another jurisdiction – would prohibit the federal court from awarding any type of damages on the state-tax component of these claims. The federal tax component of the claim couldn’t be severed, justices ruled, so the entire action had to be decided in state court.

It’s a set back for the three plaintiffs, who filed the class action wage dispute lawsuit in Oregon. Continue Reading ›

Google Age Discrimination Lawsuit Approved as “Collective Action”

November 5, 2016 | by Nassiri Law

The California age discrimination lawsuit against tech-giant Google may soon grow exponentially. A federal judge in San Jose recently approved the case’s collective action status. That means certain software engineers over the age of 40 rejected for Google jobs following an in-person interview over the last two years are now able to join the lawsuit. That could mean thousands of additional plaintiffs will be eligible to join the action.

In an artful, 17-page opinion, Judge Beth Labson Freeman posed the question, “How does age factor into one’s Googleyness?” At the heart of the case, plaintiffs seek to expose Google’s hiring practice and larger corporate culture as one that puts a prime value on youth, and considers age a detriment (as opposed to an asset with the benefit of experience).

The age discrimination lawsuit was filed by two former job applicants who were both over 50 when they were turned down for positions at the firm. One woman, a programmer, was brought in for in-person interviews on four separate occasions, and rejected each time. The second plaintiff was interviewed by phone, but was not brought in for an in-person interview. Freeman imposed a limitation on the class of people to those who had an in-person interview. That still means thousands may potentially join this action. Continue Reading ›

New California Labor Law Targets Sexual Harassment, Assault in Janitorial Industry

November 3, 2016 | by Nassiri Law

A new labor law in California seeks to aid janitorial workers in the fight against sexual harassment and sexual assault on-the-job. Assembly Bill 1978 was signed recently by Gov. Jerry Brown (D) with the goal of helping property service workers understand what their rights are and to protect themselves from sexual harassment.

Janitorial employers will now be required to register with the California Division of Labor Standards Enforcement, which will provide in-person prevention training on sexual violence and sexual harassment for both workers and employers. Workers and supervisors will receive written pamphlets that detail what sexual harassment is and what resources are available if it happens to them. The registration requirement will officially begin July 1, 2018. Those who don’t comply with the statute could face revocation of their license or be required to pay a maximum $10,000 in fines.

Sponsored by Assemblywoman Lorena Gonzalez (D-San Diego), the bill promises to add both transparency and accountability in an industry that typically employs a high number of disadvantaged workers (Latina females in particular) who are vulnerable to sexual harassment and sexual violence because they often work alone, night shifts and fear deportation if they complain. Gonzalez said these workers need appropriate training and protections to ensure their safety and adequate recourse when a crime or legal violation does occur. Continue Reading ›

Smiley v. El DuPont de Nemours & Co. – Company Can’t Use Paid Meal Breaks to Offset Other Compensation

October 29, 2016 | by Nassiri Law

A federal district court was mistaken in granting summary judgment to manufacturer DuPont in a dispute regarding employee overtime claims, according to the U.S. Court of Appeals for the Third Circuit. In Smiley v. El DuPont de Nemours & Co., the appellate panel ruled the company can’t use the compensation it gave workers for meal breaks (which it was not required to do) as an offset for overtime compensation due.

This was true even though the meal break pay during the 12-hour shift often exceeded the 30-to-60 minutes for which workers weren’t paid for donning/ doffing their uniforms and protective gear and conducting “shift relief,” that involved incoming and outgoing workers to share information about the status of the work. The federal Fair Labor Standards Act (FLSA) doesn’t authorize this kind of offsetting for overtime compensation, the court ruled, citing its 2005 precedential holding in Wheeler v. Hampton Twp. In that case, the court held that offsetting overtime pay is confined to situations in which employers are paying “extra compensation” at the premium rate of 1.5 times the regular hourly.

According to court records, employees at the plant routinely worked 12-hour shifts. They were required to be on site for a period of time before and after each shift in order to participate in “shift relief” and to don and doff their protective gear and uniforms. Typically in total this took a half hour to an hour. Continue Reading ›

Diabetic Fired Over $1.69 Drink Awarded $277,565 in Employment Lawsuit

October 26, 2016 | by Nassiri Law

Many companies – particularly those that serve or sell any kind of food or beverages – may have strict policies about when and where employees can consume those goods and how they must pay for them. However, there may be some cases when a physical condition or illness may necessitate a reasonable accommodation that deviates from such policies. This was the case in EEOC v. Dolgen corp, LLC, dba Dollar General Corporation, recently before the U.S. District Court for the Eastern District of Tennessee.

The worker in this case was a cashier who was also a diabetic who was insulin-dependent. This condition is also referred to as Type 1 diabetes, and it occurs when the body fails to produce insulin, which is the hormone the body needs to get glucose – the simple sugar used for energy, derived from sugars and starches. A condition called hypoglycemia, also known as low blood sugar, can arise when the level of glucose in the bloodstream drops below normal. Symptoms can range from being shaky to dizzy to weak or irritable to losing consciousness or having seizures. It can even be deadly if not treated right away.

According to the Equal Employment Opportunity Commission, plaintiff had previously informed her supervisor that she was a diabetic and asked on several occasions that her supervisor let her keep a sugary drink, such as juice, near the register to help prevent a hypoglycemic episode. Her supervisor would later testify at trial that it was company policy not to allow cashiers to keep any food or drinks near the register, as it did not allow “grazing” by cashiers. However, the company did have a reasonable accommodation policy that could have allowed the worker to keep her drink near the register. Problem was that for whatever reason, the workers at this particular store – including the management – were unaware of this policy. Continue Reading ›

Richardson v. Wells Fargo Bank – Bank Under Fire for Alleged Wage Theft

October 23, 2016 | by Nassiri Law

Wells Fargo may have won the most recent round of wage and hour theft litigation, but the scrutiny it appears is far from over.

In Richardson v. Wells Fargo Bank, plaintiffs allege defendant violated the Fair Labor Standards Act by improperly classifying them as exempt employees, and thus failing to pay them the appropriate overtime they were due. Specifically, these were home mortgage consultants that were classified as being exempt from overtime .However, plaintiffs were also members of a class that had settled a class action lawsuit in California over these FLSA claims. The members had opted out of that settlement, but the district court ruled the previous settlement precluded this lawsuit and satisfied due process requirements. The U.S. Court of Appeals for the Fifth Circuit reviewed and agreed, affirming district court’s grant of summary judgment for defendant.

But that isn’t likely to be the end of Wells Fargo’s legal woes. CNNMoney has been following the newest wage theft violations, which has drawn the attention of the U.S. Occupational Safety & Health Administration (OSHA), which is reportedly now investigating after receiving “a number” of whistleblower complaints from the bank’s workers over the last five years. Continue Reading ›

Kowitz v. Trinity Health – Employer’s Duty to Provide Reasonable Accommodation for Workers With Disabilities

October 21, 2016 | by Nassiri Law

Title I of the Americans with Disabilities Act requires employers to give qualified persons with disabilities reasonable accommodation for work – unless doing so would create some type of undue hardship. Generally speaking, a reasonable accommodation is an alteration of the work environment or in the way things are usually done that enables someone with a disability to have employment opportunities that are equal.

This could mean:

An adjustment or modification to the job application process;
An adjustment or modification to the manner in which the job is typically performed or the work environment that gives the applicant/ worker a chance to perform the essential functions of the job;
Adjustments or changes that allow the worker with a disability the chance to enjoy equal privileges and benefits of employment, the same as other similarly-situated workers who don’t have a disability.

In order to trigger these rights, workers need to be able to perform the essential functions of the job and they need to request reasonable accommodation. In the recent case of Kowitz v. Trinity Health, the question was whether plaintiff made a request for accommodation that was adequate enough to trigger the interactive process of identifying a reasonable accommodation. Continue Reading ›

Lawsuit Against Yahoo for Employment Discrimination

October 18, 2016 | by Nassiri Law

According to a recent news article from the Silicon Valley Business Journal, a former media executive for tech giant Yahoo has filed an employment lawsuit in federal court claiming that he was wrongfully terminated and discriminated against by the company’s policies put in place by their CEO.

Specifically, this employee claims that after he was employed for three years as an editorial director at the company’s California location, he was wrongfully terminated in 2015. He said his termination was the result of a company-wide employee review policy that was consisted of intentional gender discrimination as well as a desire to save money by reducing the amount of money it spent on employee wages and salaries. After the current CEO was hired, she created a new quarterly review process to evaluate the performance of all key employees and make necessary changes in personnel based upon the result of these reviews. It was after one of the reviews that the employee who filed this was lawsuit was terminated. Continue Reading ›

Hill v. Delaware North Co. Sportservice: Wage and Hour Disputes

October 15, 2016 | by Nassiri Law

In Hill v. Delaware North Co. Sportservice, the plaintiffs worked at the concessions at Oriole Park at Camden Yards. This is the stadium where the Baltimore Orioles play their home games. This was an employment lawsuit filed over an alleged breach of the Fair Labor Standards Act (FLSA). The FLSA applies to employees in many situations in this jurisdiction as well as in the state of California.

In Hill, these employees were working for a company that provides concessions, including the sale of food and merchandise, at the baseball stadium. These days, it is much more likely that the people who work at a stadium or other type of large event work for a contractor as opposed to the owners of the facility itself. These contractors, of which there are only couple in each region of the county, will typically handle concessions for many different facilities. Since there is not full-time work at any one stadium in most cases, it is common for these employees to work at different sporting facilities and convection centers to get more hours. This is also true in terms of the private security personnel at a sporting event though they are usually employed by a different contractor than the one that handles the food and merchandise concessions. There is no question that sporting events are big business, and this is just part of the business. Continue Reading ›

Great Falls Clinic LLP v. Eighth Judicial Dist. Court: Employment Discrimination Cases

October 12, 2016 | by Nassiri Law

In Great Falls Clinic LLP v. Eighth Judicial Dist. Court, plaintiff was offered a position by the defendant and she accepted her offer of employment. After accepting the employment offer but before starting work, the employer rescinded their offer of employment and said they were no longer interested in employing plaintiff. This was not an oral offer and acceptance as employee had signed a written contract agreeing to work for employer.

Following their refusal to employ plaintiff, she filed a lawsuit claiming wrongful termination and a violation of the Wrongful Discharge of Employment Act, which is a local law applicable in this particular jurisdiction in which plaintiff and defendant were situated. This was a case based upon the theory of promissory estoppel, breach of contract, and breach of the relevant labor law. Continue Reading ›