Courthouse facade.

Second Division Deems Arbitration Agreements Unconscionable and Executed by Fraud

Securing employee's consent to arbitration agreement by means of unconscionability and fraud is not acceptable. 

In a decision recently certified for publication on October 22, 2021, the California Court of Appeals, Second Division, reviewed two versions of arbitration agreements executed between a group of employers and their employees. The decision stems from a class action lawsuit, Yeni Najarro et. al. v. Horizon Personnel Services Inc. et. al., wherein the employees filed eighteen employment related claims against their employers. The employers attempted to hide behind the different versions of arbitration agreements and compel the employees to dispute their claims before an arbitrator which would have prevented the employees from filing a lawsuit in court.

However, the Appellate Court determined that the arbitration agreements were unenforceable as the employee's consent to arbitration was secured by unconscionable terms and fraud in the execution of the agreements. This post will briefly highlight the big picture points of the Appellate Court's decision, and demonstrate how employees can overcome unfair arbitration agreements provided by their employers.

Arbitration Agreement Impact on Employees

We have written before the employers prefer arbitration for various reasons, but arbitration agreements may have a negative impact on employees and disadvantages employees after signing arbitration agreements. It is important to remember that there is an inherent imbalance of bargaining power at the time of hiring - with employers tending to hold all the power over employees. Many employers use this advantage by including arbitration clauses that deprive employees of their right to have their day in court - which was the situation in the Najarro case - and restrict employees in many other ways. The Srourian Law Firm and its attorneys have experience overcoming unfair arbitration agreements and securing employee's employment rights to have their day in court.

What makes an Arbitration Agreement Unconscionable?

In the Najarro class action lawsuit, although there was an arbitration agreement between the employers and employees which delegated power to an arbitrator to preside over and resolve disputes between employers and individual employees, the courts typically have the power to review all agreements or contracts for enforceability.

Unconscionability is one argument employees may raise to have an unfair agreement deemed unenforceable. In California, unconscionability is referred to as the absence of meaningful choice on the part of one party to a contract, and the contract terms unreasonably favor the other party involved in the contract. Unconscionability can be procedural - meaning that during the negotiation process one party may be oppressed or surprised due to having unequal bargaining power. Unconscionability can also be substantive - meaning the substance of the terms will result in overly harsh results to one party and one-sided favorable results to another party.

Applying the doctrine of unconscionability, the Second Division determined that one version of the arbitration agreement was unfair to employees, and therefore unenforceable, because the arbitration agreement (1) forced employee's to waive their right to file a class action lawsuit for employment related claims, (2) the employers did not countersign the agreement, which is required to demonstrate mutual intent to enter into an agreement, and (3) the employees were not provided a meaningful opportunity to negotiate the terms of the arbitration agreement with their employers. Here, the employees were pressured into signing arbitration agreements that took away their power to file a class action lawsuit in court. Underlying the lawsuit was the fact that the employees had difficulty understanding and speaking the English language which the court later addressed in its discussion of fraud in the execution of agreements.

What is Fraud in the Execution?

One key aspect of the Second Division's ruling in Najarro is the court's discussion of fraud in the execution of arbitration agreements and the implications it may have for employees that speak and or read English as a second, or maybe even third or fourth language. In California, a claim for fraud in the execution is not subject to arbitration where the facts can demonstrate that there was not mutual assent between employer and employee to enter into an agreement. Fraud in the execution of an agreement occurs when an employee signs an agreement but is deceived by the employer as to the nature of the agreement; and, the employee does not fully grasp the terms that he or she is agreeing to. In the event that this happens, the court will review the facts underlying the lawsuit in relation to the contract terms to determine whether or not the agreement is void or unenforceable.

In the Najarro lawsuit, the employees were not proficient at reading Spanish and English, nor were they proficient at speaking English. Additionally, the employers - taking advantage of the obvious language barrier - merely handed the arbitration agreements to the employees and referred to the agreement as being "unimportant". Moreover the employers took advantage of the employees by pressuring them to essentially "take it or leave it" when it came to accepting the offer for employment. The employers conditioned the employees employment on on whether or not the employees signed the arbitration agreement.

Basically, the employees were compelled by the employers to sign the arbitration agreement if they wanted to be employed. The employees were not given a reasonable opportunity to read the arbitration agreements or at least have an attorney interpret the agreement for them so that they could understand exactly what they were agreeing to, and what employment rights were being waived. When a situation like this happens, as was the case in Najarro, the court is likely to deem an agreement void or unenforceable because there is no clear intent or mutual assent that the disadvantaged party - here it was non-English speaking employees that also struggled to read Spanish and English - to mutually enter into an arbitration agreement waving vital employment rights.

Each case will depend on the specific facts, so it is important to consult with an experienced labor law attorney to assess the specifics of your case to determine if your employment rights are being violated by an unconscionable arbitration agreement.

Free Consultation

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including arbitration agreements and filing class action lawsuits, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.

 

 


Clocking System

California Appellate Court Upholds Employee's Calculation of Unpaid Wages

In a decision submitted for official publication on October 14, 2021, the Court of Appeal of the State of California Second Appellate District Division Four upheld a trial court’s decision to enter judgment in favor of a warehouse employee for wage violations claims filed in a lawsuit against his former employer. The trial court awarded the employee $99,394.16, of which $42,792.00 accounted for unpaid overtime wages. The case, Byron Jerry Morales v Factor Surfaces LLC et. al., reaffirms California Labor Code and principles of employment law when calculating an employee’s regular rate of pay.

Case Background

Byron Jerry Morales was a warehouse employee employed by Factor Surfaces LLC. The company hired Morales in 2016. Morales performed a variety of duties, vital to the financial success of the company. Morales cleaned and sanitized the warehouse; he accepted shipments of supplies and equipment; he facilitated and personally made deliveries and pick-up of workplace materials; and, he engaged in customer service relations.

In 2018, the employment relationship between Morales and Factor soured, when Factor terminated Morales’s employment, after Morales asked to be compensated for unpaid overtime wages.

In 2019, Morales filed a lawsuit against his former employer, alleging that the company retaliated against him; the company violated California law by failing to maintain and provide employee records and wage statements; the company failed to pay overtime wages, along with meal and rest break compensation; and, for wrongful termination.

The Trial

At trial, Factor Surfaces LLC and its agents Gregory and Bianca Factor, both testified that the company was unable to produce as evidence Morales’s employment records and wage statements as required by statute. The employment records and wage statements would have indicated, at minimum, Morales’s regular rate of pay along with the number of days and hours he worked.

However, the company claimed that the records went “missing” after a truck owned by the company was stolen from inside a gated community. Supposedly, Morales’s employment records were inside the truck, and although the stolen truck was later recovered, the records were not. The company also testified that Morales was not paid commissions for sales.

Morales, however, was able to provide evidence at trial of his regular rate of pay and wage history with his former employer. Prior to March 9, 2018, Morales worked a full-time schedule at his former employer: 8:00 a.m. to 6:00 p.m. Monday through Friday and 9:00 a.m. to 5:00 p.m. on Saturdays. After March 9, 2018, Morales stated that he worked two (2) or three (3) Saturdays per month. Morales estimated that prior to March 9, 2018, he earned eighteen (18) hours of overtime per week, and after March 9, 2018, he earned approximately fourteen (14) hours of overtime per week because he was not working every Saturday.

Morales testified and provided evidence in the lawsuit that his regular rate of pay in 2016 was $120.00/per day, and that he received a three percent (3%) commissions on sales, which at the end of 2017, was reduced to one and a half percent (1.5%). Without explanation, the company cut Morales’s commission on sales to zero (0%). Also, at some point during Morales’s term of employment the company increased his weekly wages to $150.00/per day.

The burden is on employers to maintain records of an employee's time worked, duties performed, and wage history.

The Trial Decision

The issues of the trial ultimately boiled down to two questions: (1) which side of the lawsuit, Morales or Factor Surfaces, was more credible or believable based on their testimonies and evidence presented at trial; and (2) whether the trial court should accept Morales’s calculation of his regular rate of pay which included unpaid overtime wages and commission sales?

The trial court’s answer to the first question: Morales. In this case, the employee was found to be more credible than the former employer. Morales established that he performed work for the company that was not properly compensated; and, he provided sufficient evidence to demonstrate the amount and extent of work he performed. The burden then shifted to Factor Surfaces to provide accurate and complete employee records and wage statements as required by California law, and the employer could not. The best defense the company could raise was the documents were stolen. With that, the trial court accepted Morales’s calculation of his regular rate of pay while employed by Factor Surfaces. In result, the company filed an appeal challenging the trial court’s acceptance of the employee’s calculation of regular rate of pay.

The Appeal

The Court of Appeal reminds us that – under California Labor Code Sec. 510(4) – overtime pay means “any work performed by an employee in one workday, and work performed in excess of forty (40) hours in any one work week, must be compensated at no less than one-half time times the employee’s regular rate of pay.” Generally, commission workers receive compensation for their commission sales based on a different formula under California law.

However, in this case, because the employee was found to be more credible than the former employer; and the employer failed to provide any records as evidence, the Court of Appeal agreed that the trial court’s acceptance of Morales’s calculation of his regular rate of pay which included unpaid overtime wages and weekly commission sales was proper.

What does this mean?

What this means for employees is that the Court of Appeal is signaling one way to protect job interests against the unfair labor practices of employers. Employees may be able to do this by keeping copies of their wage statements, records of time worked, and work performance. The Court reiterates “where the employer has failed to keep records required by statute, the consequences for such failure should fall on the employer, not the employee. In such a situation, imprecise evidence by the employee can provide a sufficient basis for damages.”

The Court is saying that, even if the employee is not able to provide precise records, if the employee can at least present credible or believable testimony and records of the employee’s wage history and hours worked, it may be sufficient to shift the burden to the employer to prove otherwise; and, if the employer cannot prove otherwise, then it may lead to recovery of commission sales, unpaid overtime wages, and damages in a lawsuit. $25,000.00 of Morales’s award was for emotional distress damages.

Employees should practice saving and cataloguing their pay stubs or weekly paychecks; track missed meal or rest break periods; track duties performed at work and hours worked; and, track the number of wages earned from commission sales. This information could prove to be vital in a lawsuit for damages.

Each case will depend on the specific facts, so it is important to consult with an experienced labor law attorney to assess the specifics of your case to determine if you are owed additional compensation and unpaid overtime wages from your employer.

Free Consultation

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including wage, labor, meal and rest break violations in the workplace, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.


Lunch break note on office clock

California Supreme Court Decides Non-Discretionary Payments Are To Be Included When Calculating Overtime Pay

In a published opinion, Ferra v. Loews Hollywood Hotel LLC, 11 Cal. 5th (2021), the California Supreme Court examined the issue of whether the state legislature intended the term "regular rate of compensation" as it is used under California Labor Code Section 226.7(c) has the same meaning as the term "regular rate of pay" pursuant to California Labor Code Section 510(a), so that an employer's calculation of overtime or premium pay owed to an employee must account for the employee's hourly wages and non-discretionary payments for work performed by the employee during missed meal or break and recovery periods. The Court determined that it does!

What are non-discretionary payments?

Non-discretionary payments are payments for an employee's work that are owed under a prior contract, agreement or promise between the employer and the employee. Non-discretionary payments are not determined at the sole discretion of the employer, meaning that an employee will have meaningful input when arriving at the agreement to receive non-discretionary payments from an employer. Examples of non-discretionary payments or wages include hiring bonuses, attendance bonuses, individual or group production bonuses, and incentive bonuses.

California Supreme Court rules Non-Discretionary Payments must be accounted for when calculating Overtime or Premium Pay for work performed by employee during missed meals, breaks, and recovery time. 

What happened in Ferra?

Non-discretionary payments were at the heart of the issue underlying the Ferra lawsuit filed before the California Supreme Court. Jessica Ferra, a bartender employed by Lowes Hollywood Hotel LLC, filed a lawsuit against Loews alleging that the company failed to include her non-discretionary payments - specifically quarterly incentive payments - when calculating her regular rate of pay for overtime or premium payments owed to her for work performed during missed meals, and rest break periods as required by the California Labor Code Section 510(a). Loews argued that under its interpretation of the law, Jessica was only to be compensated her hourly wage - or regular rate of compensation - under California Labor Code Section 226.7(c), meaning that the company should not have to include quarterly incentive payments in calculating overtime or premium payments that Jessica accrued while working through her meal and rest break time.

At trial and on appeal, Jessica Ferra lost both times, meaning the trial court and appeals court agreed with Loews that "regular rate of compensation" and "regular rate of pay" had two different definitions, despite being used interchangeably throughout the California Labor Code and by the Industrial Welfare Commission (IWC). However, the California Supreme Court granted review of Ferra's lawsuit and reversed the lower court decisions. Essentially, the California Supreme Court found Loews' interpretation of the law to be incorrect, and that "regular rate of compensation" and "regular rate of pay" have the same meaning under California wage and labor laws.

To arrive at the conclusion that "regular rate of compensation" under Labor Code Section 226.7(c) and "regular rate of pay" under Labor Code Section 510(a) are synonymous, the California Supreme Court unpacked in detail the lengthy legislative history behind the creation of the Industrial Welfare Commission (IWC); the Court reviewed the state legislature's adoption of California Labor Code Sections 226.7(c) and 510(a); and, it discussed how California's wage and labor policies are intended to mirror federal law where consistent, mainly, the Fair Labor and Standards Act (FLSA). The underlying goal of California and Federal wage and labor laws are meant to protect employees from meal and rest break violations by penalizing employers for non-compliance with meal and rest break laws.

Key Takeaways

One key takeaway from the Ferra lawsuit for employees is that regular rate of compensation and regular rate of pay are synonymous or have the same meaning. The California Supreme Court noted during its discussion of the legislative history that the Industrial Welfare Commission adopted an overtime or premium pay requirement for meal or rest break period violations using the term "regular rate of compensation", while at the same time the IWC issued an adopted wage order revising overtime policies that included use of the term "regular rate of pay". In short, Loews' interpretation was wrong as the Court outlined several instances in California's legislative history where "compensation" and "pay" along with "regular rate" were used interchangeably to describe how employees wages are to be calculated. Ultimately, Ferra determined that employees are entitled to receive non-discretionary wages or payments as part of the calculation for the employee's pay - or compensation - for overtime work performed during missed meal and rest break time.

The second key takeaway from the Ferra lawsuit for employees is that the California Supreme Court ruled that its decision would have retroactive application in workplaces throughout California. What this means is that employees in California may be owed additional overtime or premium pay for non-discretionary wages or payments accrued for work performed by the employee during missed meal and rest break periods that were not calculated in the employee's regular rate of compensation or regular rate of pay. Each case will depend on the specific facts, so it is important to consult with an experienced labor law attorney to assess the specifics of your case to determine if you are owed additional compensation and unpaid wages from your employer.

Free Consultation

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including wage, labor, meal and rest break violations in the workplace, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.


Scanning parcel barcode before shipment

California Protects Warehouse Employees Against Unfair Labor Practices

California issues new legislation for warehouse distribution centers.

The on-going feud between state governments and big tech companies intensified on September 22, 2021 when California Governor Gavin Newsom signed California Assembly Bill 701 (A.B. 701), making California the first state to impose regulations on companies that require warehouse distribution center employees to meet unfair productivity quotas. A.B. 701 - the Warehouse Distribution Centers Bill - amends the California Labor Code to include new provisions taking aim at companies like Amazon that implement unfair labor practices that exploit employees in order to fulfill delivery orders. A.B. 701 also prevents job seekers from being discriminated against when applying for or pursuing a different job if the job applicant filed to receive worker’s comp benefits during prior employment.

What is A.B. 701?

Generally, the purpose of California Assembly Bill 701 (A.B. 701) is to protect warehouse distribution center employees against impending job loss for failing to meet employer established productivity quotas. The author of the new law, California Assemblywoman Lorena Gonzalez states, “worker’s aren’t machines. We’re not going to allow a corporation that puts profits over worker’s bodies to set labor standards back decades just for same-day delivery.” The new law will protect both current and former workers employed at a warehouse distribution center.

What is a productivity quota?

A.B. 701 defines quota as a work standard under which an employee is assigned or required to perform at the specified productivity speed or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.

Essentially, a quota is created by the employer or company of which the employee is responsible to meet. The quota consists of the number of tasks the employee is expected to complete within a certain amount of time. The problem arises when the quota is unfair, yet employees are still expected to perform tasks to complete the quota, and if the employee cannot do so, then the employee may experience an adverse employment action.

What is an adverse employment action?

In California, an adverse employment action is viewed as any type of retaliatory action taken by an employer that is reasonably likely to have a negative effect on an employee’s job performance, opportunities for a promotion, or ability to seek employment elsewhere. The most common examples of an adverse employment action are job loss or termination, reduced wages, and demotion to a lower employment position or job title.

What changes will happen because of A.B. 701?

Currently, companies like Amazon are not held accountable for providing employees with adequate notice of their productivity quotas and the adverse employment actions that may occur for failing to meet those quotas. A.B. 701 requires companies to provide more transparency to warehouse distribution center employees. For example, the bill provides greater protections to warehouse distribution center employees in the following ways:

  • Employers must provide adequate notice to every existing and new employee in writing describing each quota the employee is responsible to meet;
  • Employers must provide notice to all employees in writing of any adverse employment actions that may result from failing to meet a quota;
  • Employees will not be required to meet a quota that violates the employee’s right to meal and rest or break time, including using the bathroom;
  • Employers are prohibited from taking any adverse employment action against an employee for not meeting a quota if the quota violates the employee’s right to meal and rest or break time, including using the bathroom;
  • Employees must receive productive time credit towards any quota for actions taken by the employee to comply with California’s health and safety laws for the workplace;
  • Employees may receive productive time credit towards any quota during meals and rest or break time if the employee is required to be on call during those times;
  • Current and former employees have the right to request a written description of each quota and a copy of the most recent 90 days of the employee’s performance towards meeting the quota if the employee believes the company created a quota that violates the employee’s right to meals and rest or break time.

Another key component of the new law is that employees will have the ability to file a lawsuit for injunctive relief to obtain court ordered compliance with the law against employers and companies. Employees that are successful in the lawsuit for injunctive relief may be awarded suspension of the unfair quota, the court may reverse an unlawful termination of the employee for not meeting a quota that violated the employee’s labor rights, the employer and company may be ordered to cover the employee’s costs and attorney’s fees for filing the lawsuit. Each case will depend on the specific facts, so it is important to consult with an experienced labor law attorney to assess the specifics of your case.

A.B. 701 is scheduled to take effect in California on January 1, 2022.

Free Consultation

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including Warehouse Employee related health and safety violations in the workplace, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.

 


A gavel and a name plate with the engraving COVID-19

Update on COVID-19 Related Legal Issues

COVID-19 related lawsuits are increasing as the pandemic continues.

The scope of COVID-19 related lawsuits continues to expand as workers across the country are filing lawsuits seeking protection and damages from unfair labor practices. Moreover, there is a sense that more cases will be filed as more employees are impacted by the pandemic and businesses close, sometimes with little or no notice to soon-to-be unemployed workers.

Congress enacts the Families First Coronavirus Response Act

In March 2020, when Congress realized that a shut-down was imminent, Congress passed the Families First Coronavirus Response Act (FFCRA) which requires certain employers to offer employees paid sick leave or expanded family and medical leave for COVID-19 related reasons. Employees must have been employed for at least 30 days to benefit from FFCRA.

In general, the FFCRA provides for two weeks (up to 80 hours) of paid sick leave with regular pay if the employee is unable to work due to quarantine, or experiencing COVID-19 symptoms. Also, under the FFCRA, if an employee is unable to work due to the need to provide care for another individual under quarantine, or if their child’s school or child care provider closes due to COVID-19, the employee is allowed two weeks (up to 80 hours) of paid sick leave at two-thirds regular pay.

When an employee is unable to work in order to provide child care due to schools or child care being closed, employees are eligible for an additional 10 weeks of paid expanded family and medical leave at two-thirds regular pay.

Shortly after the FFCRA was enacted, a federal lawsuit was filed by an Eastern Airlines executive alleging she was fired after she requested time off under the FFCRA. According to the plaintiff, a single mother, she requested two hours of paid time off each day in order to care for her son, whose school was closed due to the pandemic. On the surface, it appears that the FFCRA was enacted to provide assistance to working parents such as the plaintiff in the midst of the pandemic. In this case, however, Eastern Airlines contends that the former employee was terminated on March 27, 2020, prior to the FFCRA taking effect on April 1, 2020.

COVID-19 and the ADA

Since 1990, the Americans with Disabilities Act (ADA) has provided significant protection to persons with disabilities in the workplace as well as society in general. One key aspect of the ADA is the requirement that employers provide reasonable accommodations to qualified employees with disabilities unless the accommodation would result in undue hardship to the employer. This requirement is quite broad and, for example, protects potential employees during the hiring and training process.

What constitutes a reasonable accommodation depends on the nature of the employee’s disability, the necessary duties of the job, the physical workplace and hardship (if any) to the employer. As a result of COVID-19, however, courts have been asked to consider how COVID-19 impacts established law and perhaps the need to re-interpret the meaning of reasonable accommodation under the ADA.

In June 2020, an engineer filed a lawsuit against his employer alleging discrimination in violation of the Massachusetts state ADA. In March, the employee was allowed to work from home in light of a state “stay at home” order. In April, his employer requested that he return to the office for work, but the employee requested he be allowed to continue to work remotely. The employee, who has high blood pressure and cares for his elderly mother, argues that he is at high risk of serious illness if he contracts COVID-19. He also fears transmitting the disease to his elderly mother who suffers from multiple medical conditions that place her at high risk. When his request for a reasonable accommodation, specifically to work remotely, was denied, he refused to return to the office, and was terminated.

Prior to the pandemic, courts did not consider a request to work remotely to be a reasonable accommodation. However, with increased health risks due to COVID-19, courts will be asked to re-consider whether a request to work remotely due to a heightened health risk of contracting or spreading the virus is a reasonable accommodation under the ADA.

More broadly, attorneys are using novel legal arguments in lawsuits based on the unique circumstances due to COVID-19 and the need to protect employees when current labor laws may be insufficient or simply never considered the challenges posed by the pandemic.

Lawsuits Filed after Employees Die From COVID-19

Sadly, some employees have died from COVID-19, and their families have filed lawsuits claiming that the workplace was not safe and employers failed to protect employees from the deadly virus. The key issue is whether employers followed federal and state safety guidelines, and if the employer failed to ensure proper protocols at work, they may be held liable for the death of an employee who contracted COVID-19 as a result of an unsafe workplace. Employers, however, claim that it is very difficult to prove how or where someone contracts the disease.

In one case, the family of a Safeway employee allege that the work environment was not safe because sick employees were still coming to work. Moreover, according to the lawsuit, on March 20, a memo was posted that stated, “If you are healthy, a mask will not protect you from the respiratory drops an infected person coughs out. Open areas of the mask can let those drops in.” The family filed a lawsuit after the employee tested positive for COVID-19 on April 4 and died eight days later. According to the family, Safeway failed to follow guidelines of the Occupational Safety and Health Administration (OSHA) issued on March 9 that required sick employees to be isolated.

Similar lawsuits have been filed against Walmart. In one case against a Walmart in Illinois, an employee was allegedly told to continue to work despite having symptoms, and was eventually sent home two days later when his symptoms worsened. He died two days later. Another Walmart employee in Dallas has filed a lawsuit that alleges she contracted COVID-19 because Walmart failed to provide personal protection equipment (PPE) and failed to follow health guidelines issued by health agencies including the Centers for Disease Control (CDC) and OSHA. As a result, she claims she contracted COVID-19 from the unsafe work environment at Walmart.

FREE CONSULTATION

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including COVID-19 related health and safety violations in the workplace, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations due to COVID-19 related health and safety violations, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of a class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.


FAQs on Whistleblowers

Reporting your company or supervisor for violating the law can be frightening. However, reporting workplace violations are important to ensure the rights of all employees, and in some cases protect the health and safety of employees, the public and the environment. Fortunately, federal and state laws protect employees who report violations.  

Q: What is a whistleblower?

The term “whistleblower” is used to describe an employee who reports an employer for violating the law. The violation could be an illegal act taken by the employer against the whistleblower, or a general violation with a wider impact. For example, an employee who reports an incident of sexual harassment at work would be a whistleblower. Similarly, an employee who reports an employer for violating pollution laws would also be a whistleblower.

Q: Are whistleblowers protected?

Yes. There are many federal and state laws enacted specifically to protect whistleblowers. In addition to protection from retaliation, whistleblowers can also file a lawsuit against the employer if there is retaliation for reporting the violation of the law. In other words, an employee cannot retaliate (or punish) an employee for being a whistleblower.

Federal law protection for whistleblowers require a “good-faith” belief that a violation of the law occurred. Like many legal terms, it is difficult to define “good-faith,” but courts have generally held that a good-faith belief be a combination of the whistleblower’s subjective opinion as well as an objective basis for the violation. An experienced labor law attorney can discuss the facts of your case and advise you on how to proceed with an allegation against your employer and ensure that your rights are protected under Federal law.

Whistleblowers are also protected under state law, and California labor laws provide significant protection to employees, and are considered among the strongest in the country. For example, under the California Labor Code, an employer cannot retaliate against a whistleblower if the employee “reasonably” believes a violation has occurred which is considered a lower burden than the federal law requiring a good faith belief. Moreover, the California whistleblower is protected even if the employer is cleared of any wrong-doing. 

Q: What is considered whistleblower retaliation?

A: Whistleblower retaliation includes a variety of actions such as:

• wrongful termination;

• demotion;

• failure to promote when promotion is merited;

• denying opportunity for training or professional development;

• blacklisting;

• reducing pay or hours;

• reassignment to less desirable task;

• intimidation;

• denying access to resources necessary to perform work duties; and

• making any threat including a threat to report non-citizen employee to ICE or immigration.

Under California law, an employee is protected from workplace retaliation even if the employee did not actually make a whistleblowing report. In other words, employers cannot retaliate against an employee because they believe the employee is a whistleblower.

Q: What can I do if my employer retaliates against me for being a whistleblower?

A: If you believe you are the victim of unlawful labor practices, or that your employer is violating the law or regulations, you have the right to file a complaint without fear of retaliation. For example, if you are the victim of sexual harassment, you have the legal right to file a formal complaint against your employer through the regular channels proscribed in the employee handbook or your employment contract. Similarly, if the wrongful action by your employer is a workplace safety violation or an environmental violation, you have the right to file a complaint to an appropriate governmental agency such as OSHA (Occupational Safety and Health Administration) or the EPA (Environmental Protection Agency) and not fear retaliation.

After reporting the violation, an investigation should be conducted, and your rights as a whistleblower protect you from workplace retaliation. However, if your employer does retaliate, you can file a lawsuit against your employer for whistleblower retaliation. If you prevail, you may be entitled to compensation for lost wages and benefits, physical pain, mental suffering, loss of career opportunities, punitive damages, legal costs and attorney’s fees.

There are strict deadlines on retaliation claims, so be sure to act promptly after the retaliation and speak to an experienced labor law attorney to ensure your rights are protected.

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Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including whistleblower retaliation, and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations due to whistleblower retliation, you may have certain employee rights under state and federal law, and may be entitled to compensation as a part of the class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.


Know The Law

Know the Law. Know your rights.

What is the ADA?

The American with Disabilities Act (ADA) is a federal civil rights statute enacted in 1990 that protects individuals with disabilities in all areas of public life including employment. The purpose of the ADA is to ensure that people with disabilities have equal rights and is similar to the civil rights granted to individuals based on race, color, sex, national origin, age and religion. Like any statute, there will be amendments and case law that may change the scope of the ADA, so it is important to consult with an experienced labor law attorney if you believe your employer has violated your rights under the ADA or any labor law.

What is a disability under the ADA?

According to the ADA, a disability is defined as “a person who has a physical or mental impairment that substantially limits one or more major life activities” and includes “a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.” The ADA does not provide a specific list of impairments that are covered, but courts have generally defined “disability” broadly.

Interestingly, the ADA also protects persons who “have a relationship with an individual with a disability.” Specifically, this has been interpreted to mean that an employer may not assume that an employee who has a relationship with a person with a disability would negatively affect job performance. For example, if an applicant for employment is married to a person with a disability, the prospective employer may not assume that the applicant would request excessive absences from work to care for the spouse and reject the applicant based solely on that assumption.

Also, the ADA only protects disabilities that are “known” to the employer. In other words, unless the employer is aware of the disability or because the employee has requested a reasonable accommodation.

How does the ADA protect employees?

The protections under the ADA are broad and include both employees, and qualified applicants for employment. Under the ADA, a “qualified individual with a disability” includes a person that “meets legitimate skill, experience, education, or other requirements of an employment position” and who is capable to perform the “essential” job functions of a job they currently hold or seek with or without a “reasonable accommodation.” In other words, if a applicant or employee is qualified to perform the essential aspects of the job except for limitations due to a disability, the employer cannot reject the applicant or terminate the employee without first considering whether a “reasonable accommodation” could be enacted to allow the individual with a disability to  perform the essential tasks. 

A “reasonable accommodation” is a “modification or an adjustment to a job or the work environment that will enable a qualified applicant or employee” to perform the essential tasks required for the job. For example, if an applicant is qualified for a job, except the applicant uses a wheelchair and is unable to climb a ladder to reach the top shelf where supplies are stored, the employer may not reject the applicant solely on that basis. Instead, the employer must first consider how to modify the workplace so that the applicant would be able to complete tasks without having to climb a ladder, which is not possible due to the person’s disability. If the accommodation is reasonable, and the employee is otherwise qualified, the employer must make the accommodation in order to comply with the ADA.

The range of reasonable accommodations vary from modifications to existing workplaces such as wheelchair ramps, modifying work schedules, modifying equipment, providing a reader or interpreter, or adapting training programs. The ADA does not, however, give preferential treatment to individuals with disabilities nor does the ADA require the employer to assign an individual with disabilities to a job that the person is not qualified to do.

Employers are also not required to provide a reasonable accommodation if it would impose an “undue hardship” on the business. An undue hardship is defined as “an action requiring significant difficulty or expense” when compared to several factors such as nature and cost of the accommodation, resources required, and the size and structure of the business. In general, courts have required larger companies to make more accommodations that may be expensive than a smaller company.

Does the ADA protect California employees with disabilities?

Yes. The ADA is a federal law that protects all employees with disabilities in the U.S.  However, California boasts some of the strongest protections for employees in the country, and a California state version of the ADA is part of the Fair Employment and Housing Act of 1959 (FEHA). While both the ADA and FEHA protect disabled individuals from job discrimination, FEHA is broader than the ADA and provides greater protection. For example, under the ADA, the protection extends to persons that will be substantially limited by a disability, while the FEHA includes any “limitation” rather than requiring a “substantial” limitation. The result is that FEHA offers broader protection than the ADA.

What should I do if I feel my rights have been violated under the ADA or FEHA?

If you are a person with a disability and you believe your rights have been violated as either an applicant or employee, you should contact an experienced labor law attorney to discuss your case. Both the ADA and FEHA are complicated, and you need legal assistance to ensure your rights are protected. Also, an experienced labor law attorney can help you determine whether to file a complaint and what information you need to proceed. More importantly, an experienced labor law attorney can advocate for you and file a lawsuit for damages if appropriate. You may also be part of a class action suit with other similarly situated employees.  

FREE CONSULTATION

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including ADA and FEHA violations and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations as an employee due to violations of the ADA or FEHA, you have certain employee rights under state and federal law, and may be entitled to compensation as a part of the class action lawsuit. Please contact us to speak with one of our lawyers for a free consultation.


Know The Law

Know the Law. Know your Rights.

California labor laws provide many protections to employees that often exceed federal labor laws. Therefore, it is important to know the various state laws designed to ensure your rights as an employee are not violated by employers. Fundamentally, labor laws and regulations are highly specific and often difficult to understand since laws are amended, enacted or repealed regularly, so it is important to consult with an experienced labor law attorney to ensure your rights are protected.

Often, employees do not realize that they have the right to timely, accurate wage statements each pay period with nine categories of information included in each wage statement. A wage statement, or pay stub, is the document an employer must provide employees every pay period that explains how the paycheck was calculated.

According to California Labor Code section 226, there are nine categories of information that must be included in every wage statement:

• gross wages

• total hours worked

• piece-rate units earned and any rate if employee is paid on a piece-rate basis

• all deductions from wages

• net wages

• dates of pay period

• employee’s name and the last four digits of social security number

• full name and address of the employer

• applicable hourly rates.

Some requirements are not required for exempt employees such as salaried employees. Additionally, section 246(h) of the California Labor Code requires employers advise employees each pay period of any paid sick leave they have accrued. While this is not specifically required on each wage statement, many employers include this information on wage statements as a matter of convenience. This information is particularly vital to any employee who seeks paid sick leave, which is guaranteed by the California Sick Paid Leave Law.

ACCURATE WAGE STATEMENTS ARE REQUIRED BY LAW

California law is clear that employers have a legal obligation to provide accurate wage statements to employees each pay period even if a third-party payroll company used. An employer who fails to comply with the law and violates an employee’s rights may face large fines and penalties, even for minor mistakes. The requirements are strict, and must be followed exactly. For example, the mandatory wage information must be on the face of the wage statement. In other words, the law is not being followed if the employee must find the required wage information on another document besides the wage statement.

In addition to possible fines and penalties, an employee has the right to file a lawsuit against the employer for “knowing and intentional” failure to comply with the law. If successful, an employee who has suffered an injury due to inaccurate or missing wage statements may be entitled to monetary damages.

FREE CONSULTATION

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including failure to provide accurate wage statements and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations as an employee such as not receiving accurate wage statements in California, you may have certain employee rights under state and federal law and may be entitled to unpaid wages, interest, attorneys’ fees and costs, and/or be entitled to compensation as a part of the class action lawsuit. Please contact us to speak with one of our experienced lawyers for a free consultation.


Know The Law

Know the Law. Know your Rights.

Know the Law. Know your Rights.

Generally, employees in California are entitled to a rest break and/or meal break when they work more than three and a half hours a day. Specifically, state law mandates a 10-minute rest break for every four hours worked in a day; and a 30-minute meal break if a shift is more than five hours. An additional 30-minute meal break is required by law if an employee works ten hours in a day.

There are some exceptions depending on the type of employee or industry, such as construction, commercial drivers, or utility workers. The vast majority of employees, however, are protected by state law and employers are violating your rights if you are not provided breaks according to the statute. If your employer is not providing you with mandated meal or rest breaks, you have the right to file a lawsuit and seek compensation.

California Labor Code 512(1)(a)

An employer shall not employ an employee for a work period of more than five hours per day without providing the employee with a meal period of not less than 30 minutes, except that if the total work period per day of the employee is no more than six hours, the meal period may be waived by mutual consent of both the employer and employee. An employer shall not employ an employee for a work period of more than 10 hours per day without providing the employee with a second meal period of not less than 30 minutes, except that if the total hours worked is no more than 12 hours, the second meal period may be waived by mutual consent of the employer and the employee only if the first meal period was not waived.

Employees may voluntarily waive meal breaks in certain circumstances. For example, if the shift is no more than six hours, the employee may waive the required meal break. An employee, however, may generally not waive the second mandated meal break required for a 10-hour shift if they waived the first meal break. The laws are often complicated, so employees should ask for clarification from a supervisor or human resources; as well as consult with an experienced employment attorney if there appears to be a pattern of violations.

Rest breaks are required by law for any shift lasting more than three and a half hours, and employees must be given a paid rest break every four hours or major fraction thereof. Employees may also voluntarily work during a rest break, but under no circumstances may the employer require you to work during your mandated breaks.

FREE CONSULTATION

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including failure to provide meal or rest breaks and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations as an employee such as being denied meal and rest breaks in California, you may have certain employee rights under state and federal law and may be entitled to unpaid wages, interest, attorneys’ fees and costs, and/or be entitled to compensation as a part of the class action lawsuit. Please contact us to speak with one of our experienced lawyers for a free consultation.


Know The Law

Know the Law. Know your Rights.

Are you Earning at Least the Minimum Wage Required by California Law?

Employees in California must be paid the minimum wage and are protected by law. While there are some exceptions, it is illegal for employers to pay employees less than the required minimum wage. The California state minimum wage is higher than the federal minimum wage, so workers should be paid the higher required pay under state law. Moreover, some cities and counties have even higher minimum wages, so you should always be aware of the applicable minimum wage, as well as any increases to the minimum wage that typically occur every January 1.

California Labor Code §512(1)(a)

The minimum wage for employees fixed by the commission or by any applicable state or local law, is the minimum wage to be paid to employees, and the payment of a lower wage than the minimum so fixed is unlawful. This section does not change the applicability of local minimum wage laws to any entity.

If your employer is not paying you the minimum wage required by law, you can file a lawsuit to recover unpaid wages, interest on the wages, as well as attorneys’ fees and court costs. Also, if there are many employees that are not being paid the required wage, you could be part of a class action claim against the employer.

California Labor Code § 1194

Any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to such employee is entitled to recover in a civil action the unpaid balance of the full amount of such minimum wage or overtime compensation, together with costs of suit, notwithstanding any agreement to work for a lesser wage.

Also, be aware that in addition to the hours you are actually performing your job, your employer must also pay you for any additional time that your employer has control over you. For example, you are entitled to minimum wage for the time needed to change into a uniform; time on-call waiting to be called in to work; as well as time needed to pass through security between shifts. This time is covered by California labor laws, and your employer must pay you at least the minimum wage or they are breaking the law, and you may be entitled to compensation.

FREE CONSULTATION

Srourian Law Firm, with locations in Los Angeles, Westwood, Woodland Hills, and Orange County is experienced in all aspects of employment law including minimum and unpaid wages and have aggressively represented employees in Los Angeles, Hollywood, Santa Monica, Orange, Irvine, Anaheim, Santa Ana, Newport Beach, Costa Mesa, Fullerton, Tustin, Mission Viejo, San Clemente, Garden Grove, Laguna Niguel, Brea, Fountain Valley, Aliso Viejo, Yorba Linda, Westminster, Laguna Hills, Cypress, and La Habra.

If you or someone you know suffered employment violations as an employee such as being paid less than minimum wage in California, you may have certain employee rights under state and federal law and may be entitled to unpaid wages, interest, attorneys’ fees and costs, and/or be entitled to compensation as a part of the class action lawsuit. Please contact us to speak with one of our experienced lawyers for a free consultation.