Tennessee Titans Face Accusations of Firing Worker on Covid-19 Leave

In recent news, the Tennessee Titans are facing a lawsuit. According to the lawsuit, the NFL team violated the Families First Coronavirus Response Act (and other federal labor laws) when they terminated a field maintenance employee who took time off work when they contracted Covid-19.

The Case: Department of Fair Employment and Housing (DFEH), an agency of the State of California vs. Activision Blizzard, Inc., Blizzard Entertainment, Inc., Activision Publishing, Inc., etc.

The Court: Superior Court of the State of California, in and for the County of Los Angeles

The Case No.: 21STCV26571

The Plaintiff: DFEH v. Activision Blizzard

On July 20, 2021, DFEH, the plaintiff in the suit, filed a complaint against Activision Blizzard alleging 10 different violations of state employment law. The lawsuit was filed after the completion of a two-year DFEH investigation into the defendant’s workplace practices. The investigation led to a report (dated June 24, 2021) that concluded Activision Blizzard was discriminatory toward female employees in terms of employment conditions, compensation for their work, job assignments, promotions, terminations, workplace retaliation, etc. According to the investigation, female employees of Activision Blizzard were also subjected to sexual harassment, and management at the company did not respond appropriately to the situation, effectively allowing discrimination, harassment, and retaliation to run rampant at the company. Examples of employment law violations cited in the civil lawsuit reach as far back as 2010.

The Defendant: DFEH v. Activision Blizzard

The defendant, Activision Blizzard, is a developer and publisher of mega franchise video games. Some of their popular game releases include World of Warcraft, Diablo, and Call of Duty.

The Case: DFEH v. Activision Blizzard

Activision Blizzard faces wide-ranging and highly damaging allegations of maintaining a hostile workplace (specifically toxic for women), employing a disproportionately low number of women, paying women less than male counterparts performing similar job duties, subjecting female workers to sexual harassment, and allowing perpetrators of sexual harassment in the workplace to go without any significant punishment. While the complaint officially names the subsidiaries Activision Publishing and Blizzard Entertainment, as well as the corporate parent, Activision Blizzard, a majority of the specific allegations made in the complaint are directly related to Blizzard Entertainment. After the defendant’s initial response denying the validity of the claims made in the suit, and dismissing the allegations as a distortion of the truth or complete falsehoods resulted in major kickback from the workforce (leading up to an organized walkout at the company’s Irvine, California headquarters), Activision chief executive Bobby Kotick, issued a statement apologizing for the initial “tone deaf” response to the lawsuit. The company also announced that they hired a 3rd party law firm to conduct a review of their processes and procedures.

If you have questions about California labor law violations or need to file a hostile work environment complaint, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Tennessee Titans Face Accusations of Firing Worker on Covid-19 Leave

In recent news, the Tennessee Titans are facing a lawsuit. According to the lawsuit, the NFL team violated the Families First Coronavirus Response Act (and other federal labor laws) when they terminated a field maintenance employee who took time off work when they contracted Covid-19.

The Case: Miller v. Tennessee Football Inc.

The Court: U.S. District Court for the Middle District of Tennessee

The Case No.: 3:21-cv-00378

The Plaintiff: Miller v. Tennessee Football Inc.

Paul Miller, plaintiff in the case, filed a lawsuit in Tennessee federal court against Tennessee Football, Inc. According to the suit, the NFL team terminated Miller’s employment when he tested positive for the coronavirus in November 2020 and took a couple weeks of sick leave to quarantine as recommended by the CDC. According to the lawsuit, the NFL team hired Miller as a sports field assistant in October 2019, and Miller consistently "met or exceeded" the employer’s performance expectations during his time on the job with the Titans during which his job duties included prepping the practice and game fields, helping special teams and running backs during team practices, and assisting with equipment issues.

The Defendant: Miller v. Tennessee Football Inc.

Tennessee Football Inc. is the business entity that owns and operates the Titans, an NFL team. According to the plaintiff, he received a phone call from Daniel Werly, Titans’ General Counsel, and Allie Lessmiller, Human Resources Director, terminating him from his job on November 20th, 2020. Miller claims that the team violated the FFCRA, and the Family and Medical Leave Act and Fair Labor Standards Act.

History of the Case: Miller v. Tennessee Football Inc.

According to the plaintiff, the team fired him in violation of the Families First Coronavirus Response Act (FFCRA). The FFCRA was signed into law during the early days of the pandemic in March 2020. One of the protections the FFCRA offers employees is two weeks of paid emergency sick leave. The law prevents employers from firing, disciplining, or discriminating against employees that take paid sick leave under FFCRA. Miller seeks to be reinstated to his old position, seniority level and salary with the Titans. The suit also requests that the Titans take action to stop discrimination against employees due to disability. Miller seeks back pay and fringe benefits, liquidated damages (under the FLSA and FMLA), as well as attorney fees.

This is one of many lawsuits and other legal actions filed recently in response to the U.S. government adopting the first federal paid sick time mandate, the FCCRA.

If you have questions about California labor law violations or violations of FCCRA, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Ex UPS Employee Files Suit Over Alleged Covid-19 Risk

UPS fights back against an ex employee alleging Covid-19 risk.

The Case: Desdnie Hess v. United Parcel Service Inc.

The Court: U.S. District Court for the Northern District of California

The Case No.: 3:21-cv-00093

The Plaintiff: Desdnie Hess v. United Parcel Service Inc.

The plaintiff in the case, Hess, is a resident of Santa Barbara who started working as a UPS supervisor in October 2019 until May 2020 when she quit. Hess was employed at a Santa Maria UPS distribution center where she alleges “physical distancing” doesn’t exist. She filed a lawsuit in California state court in October 2020 that was later moved to federal court.

The Defendant: Desdnie Hess v. United Parcel Service Inc.

According to Hess, UPS poses a public nuisance, engages in unfair competition and does not reimburse employees for the necessary masks and other PPE equipment needed to ensure safety. Hess is seeking declaratory relief and monetary damages. UPS’s pandemic response has also been called into question by others. In fact, the company is already dealing with the Cal/OSHA regarding another California facility.

History of the Case: Desdnie Hess v. United Parcel Service Inc.

UPS requested that the California federal judge toss the proposed class action alleging that the company systematically endangered their employees’ health and safety. The plaintiff alleges that UPS left their staff vulnerable to exposure to Covid-19. UPS urged the judge to toss the proposed class action arguing that the ex-employees’ claims are better suited to be handled by a regulator rather than a judge. UPS insisted during the remote hearing that the plaintiff’s claims should be tossed and considered a workers’ comp issue and sent before a state regulator. However, Judge Alsup was concerned that referring the case to Cal/OSHA could mean Hess wouldn’t be able to recover damages for the alleged emotional distress due to lax safety protections against Covid-19 exposure in the UPS workplace. UPS continued their argument insisting that the workers’ compensation regime covers the alleged psychiatric injury in the case.

If you have questions about Covid-19 related labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

OSHA Worker Safety Rule Changes Could Lift Mask Requirements for Vaccinated Workers

California’s OSHA department is introducing changes to recommended Covid-19 worker safety rule changes that could lift mask requirements for a large portion of vaccinated California workers.

Mid-June Meeting Will See Further Discussion of Mask Requirements:

Eric Berg, California OSHA Deputy Chief of Research and Standards, stated that he would present suggested revisions to rules at the next meeting on June 17th, 2021. Suggestions would align with Department of Public Health guidance. If changes are approved, mask requirements could be lifted for the majority of vaccinated California workers by the end of the month.

OSHA Withdraws Recommendations for Changes After CDPH Announcement:

After the California Department of Public Health guidance was released recommending a reduction in masking requirements throughout California, the California Occupational Safety and Health Administration voted to withdraw their previously released recommendation for changes to pandemic-related worker rules (announced on June 3rd) in an emergency meeting. New OSHA proposed changes would be designed to align with CDPH’s most recent guidance.

CDPH Guidance Sets Rules for General Public & Vaccinated Californians:

The guidance issued by the CDPH set rules for the general public of California recommending vaccinated individuals remove masks except while using public transit systems, while in schools, healthcare settings, shelters, or prisons. The guidance also indicates that regardless of vaccination status, masks will not be required in most outdoor settings. Berg, of California OSHA, stated that CAL OSHA’s recommendations would coincide with the CDPH framework, which aligns with guidelines set out by Centers for Disease Control and Prevention.

The June 3rd Changes Announced by CAL OSHA:

The CAL OSHA changes to Covid-19 related safety measures required by California employers were announced prior to the CDPH’s issued guidance regarding mask requirements for California’s general public. The changes announced on June 3rd were to change rules put in place in November of 2020. However, the June 3rd changes had not yet cleared California’s Office of Administrative Law and were not in effect until the changes were officially published. Since the June 3rd changes were unanimously withdrawn at the emergency meeting, the requirements will remain as stated in the November 2020 rules until further changes are made.

If you need help with employment law violations in the workplace, get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP today. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

$2.9B Class Action Spending Record Fueled by Covid-19

Class action litigation spending increased to $2.9 billion in 2020 (up from $2.64 billion in 2019). This rise in spending marks the sixth consecutive year of class action spending increases (based on Carlton Fields corporate survey).

Class Action Spending in 2020:

Class action accounted for about 13% of the $22.8 billion litigation market in 2020. This shows an 11.6% increase from 2019. As of April of 2021, over 1,600 Covid-19 related class actions were filed in the United States. Many are not surprised by the increase, but the amount of the increase is somewhat surprising.

The Carlton Fields Corporate Survey: Survey of Companies

The recently published survey, Carlton Fields Corporate Survey, is a survey of various companies across a range of sectors. According to the survey, the three largest categories for Covid-19 related class actions were:

• Insurance Coverage for Business Interruption

• Higher Education Refunds

• Demands for Entertainment, Ticket & Travel Refunds

Covid-19 Class Actions & Employment Law Violations:

There have been more than 2.737 lawsuits (including 210 class action lawsuits) filed alleging labor and employment violations in connection to the coronavirus since March 12, 2020. California saw the highest number of coronavirus-related employment law filings at 726. (Other states with a high number of coronavirus-related employment law filings include: New Jersey at 313, Florida at 206, New York at 204, and Ohio at 162. The industries with the highest number of coronavirus-related filings were:

• Healthcare: 666 cases

• Manufacturing: 326 cases

• Retail: 254 cases

• Public Administration: 223 cases

• Hospitality: 195 cases

A Significant Percentage of Companies Face Coronavirus-Related Suits:

Throughout 2020, more than 25% of companies surveyed faced one or more class actions. Due to the high number of class actions, more than 60% of companies surveyed noted that they changed their business behaviors in order to avoid class action litigation. Most industries saw the need to adapt their labor and employment protocols so they could remain compliant with changing regulations and safety measures, and avoid litigation stemming from Covid-19 related employment law violations.

If you have questions about Covid-19 related labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Emergency Rule Setting Covid-19 Workplace Safety Parameters for Employers in the Health Care Sector

In June 2021 OSHA (Occupational Safety and Health Administration) issued an emergency rule setting workplace safety standards for healthcare sector employers applicable during the Covid-19 pandemic.

The announcement was made by Labor Secretary Marty Walsh and Jim Frederick, acting assistant secretary of labor for OSHA. The ETS (Emergency Temporary Standard) outlined what safety measures employers are required to employ for the protection of their healthcare workers. The ETS is effective on the date it is published in the Federal Register (as of the date of the announcement, it had not yet been published, and a publication date was still undetermined).

The Safety of Healthcare Workers:

Since health care workers, especially those who come into regular contact with the virus, are at the highest risk of contracting the virus, the ETS was employed to provide essential protections for workers. After thorough review of the available data and science behind the pandemic, OSHA determined a set of standards that would have the biggest impact for the safety of workers in the healthcare industry.

The Emergency Temporary Standard for Protecting Healthcare Workers:

The ETS exceeds 900 pages (not including explanatory materials made available by the Department of Labor). Some of the requirements put in place by the recently announced ETS include: :

• Maintain Social Distancing Protocols

• Properly Screen Patients for Virus Symptoms

• Give Healthcare Workers Paid Time Off to Receive Vaccinations

• Give Healthcare Workers Paid Time Off to Recover from Side Effects of Vaccinations

• Create a Virus Safety Plan Including Specific Elements (if employing 10+ employees, safety plan must be in writing)

• Screen Workers Prior to Shifts

• Provide Masks and Other PPE for Use in High-Risk Situations

• Ensure Masks are Worn Indoors

• Ensure Masks are Changed Daily

• Use Ventilation Procedures for Patients Who May Have the Virus

• Remove Any Employee Who Tests Positive for Covid-19 from the Workplace for Defined Periods of Time (if 10+ employees, and worker can’t operate remotely, employer must continue paying worker normal salary up to $1,400/week for the 1st two weeks of the absence)

• Remove Any Employee Who is Symptomatic or Suspected of Being Infected for Defined Periods of Time (if 10+ employees, and worker can’t operate remotely, employer must continue paying worker normal salary up to $1,400/week for the 1st two weeks of the absence)

• Additional Mandates Put in Place by the ETS:

The ETS also mandates that a fully vaccinated healthcare worker does not have to wear a mask or adhere to social distancing or masking requirements if they are in “well defined areas” where the employees present are vaccinated and no one who could potentially have the virus is reasonably expected to be in the same area.

Timeline for New Emergency Temporary Standard Compliance:

While employers will be required to comply with the Covid-19 ETS either within 2 weeks of its taking effect or a month (depending on the mandate), OSHA already said they would use “enforcement discretion” based on whether or not employers are making a good faith effort to comply, but missed the deadline. The DOL also stated they would update the ETS as needed.

If you have questions about workplace safety requirements or how the law protects you on the job, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Covid-19 Employment Requirements to Limit Exposure in the Workplace

In late 2020, Emergency Temporary Standards were issued for California workplaces by Cal/OSHA. The new standards put dramatic requirements in place for training, testing, and record keeping. 

2020 Standards to Minimize Covid-19 Exposure in the Workplace:

While the dramatic new Cal/OSHA issued Emergency Temporary Standards imposed requirements in various areas, the most controversial new requirement employers faced was to “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits.” This stipulation applied to employees excluded from their own workplace under ETS regulations. The requirement did not apply in situations where the employee was unable to work due to other reasons (including hospitalization) or if the Covid-19 exposure was not connected to the workplace (and the employer could prove it wasn’t). Since requirements also existed that required any close contacts (even if they were asymptomatic) to exclude themselves from the workplace for at least 10 days (even if they received a negative Covid-19 test), the new requirement placed a significant burden on California employers. 

Just as Federal Covid-19 Paid Leave Requirements Expired at the End of 2020

These new Cal/OSHA requirements were issued just as federal Covid-19 paid leave requirements expired at the end of 2020 inspiring numerous business groups to challenge portions of the ETS. One of several similar lawsuits was filed in San Francisco. After briefing from the parties in the case, the judge’s order denied a motion to preliminarily enjoin portions of the ETS. 

Judge Denies Early Challenge to Cal/OSHA Standard Extending Covid-19 Pay Requirements

When denying the early challenge to the new standards issued by Cal/OSHA that extended Covid-19 pay requirements, the judge cited numerous arguments in support of his decision: 

• the Plaintiff filed to show a likelihood of prevailing on the merits of their claims

• the balance of interim harms 

• the public interest in stopping the spread of Covid-19

• protecting employee health

• protecting community health

The judge on the case cited the above indicating that combined, they weigh heavily in favor of the ETS regulation’s continuance of Covid-19 pay protections, and other requirements to respond to the dangers presented by the pandemic. The judge specifically noted that with the exception of religious services (that have unique constitutional considerations), not one court in the entire nation has blocked emergency public health orders designed to stop the spread of the virus (and the illness, and death associated with it). The judge showed no indication that he wanted to be the first to do so. While this denial does not end the case, the judge’s ruling means that ETS regulations are in force as litigation progresses. 

If you have questions about California labor law violations or how employment law protects you against labor law violations, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.