Disabled Worker Files Discrimination Charges Against Citizens of Humanity

Noe Abarca, a 61-year old employee who formerly worked for Citizens of Humanity, recently won a major verdict. While the court case took over three weeks to argue, in the end he was awarded $650,000 in compensatory and punitive damages by a Los Angeles County Superior Court jury.

Noe Abarca felt he was wrongfully dismissed after a shoulder injury limited his ability to work. Prior to the injury, Abarca worked for six years at minimum wage as a quality control inspector for the well-known blue jeans label. In the jury’s opinion, Abarca was treated with malice, fraud and oppression. Plaintiff’s counsel indicates that this can be viewed as a message to employers on how to treat their employees.

According to court documents, Abarca was hired to work for Citizens of Humanity in 2006. Approximately three years later, he started to feel pain in his chest/shoulders. This made it difficult for him to lift items. Eventually, he saw a doctor who issued a restriction that Abarca not lift anything over 20 pounds. In response, Citizens of Humanity brought in another employee to handle Abarca’s loading and distribution duties and advised him to only inspect merchandise. The day after Abarca’s lifting restrictions ended, he was still feeling pain. He was fired.

Abarca’s case alleges retaliation, failure to provide reasonable accommodation and disability discrimination. The court ruled that Citizens of Humanity’s HR director was fraudulent in statements pertaining to worker’s compensation upon learning of Abarca’s injury originally as well as on the day he was terminated.

If you feel that you have been wrongfully terminated or otherwise unfairly treated on the job, please get in touch with one o the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

California Supreme Court Limits Rights to Jury Trial for Whistleblower Claims in Health Care

California Health and Safety Code section 1278.5(g) protects health care workers and medical staff from discrimination and retaliation for reporting unsafe patient care and conditions. Recently, the California Supreme Court held that it does not go so far as to provide a right to a jury trial. Claims brought under Section 1278.5(g) do not entitle the parties to a jury trial, but this does not prevent a jury trial on a related claim for wrongful termination that is in violation of public policy.

Consider Shaw v. Superior Court (THC-Orange County, Inc.), Case No. S221530:

In considering Shaw v. Superior Court on April 10, 2017, The California Supreme Court decided that an employee seeking damages for alleged whistleblower retaliation under the law noted above did not have the right to a jury trial. In the case, a Human Resources Coordinator filed a lawsuit against their former employer, a hospital, alleging that she was wrongfully terminated. She claimed that she was fired in retaliation for complaining that the hospital employed unlicensed and/or uncertified health care professionals who did not appropriately complete competencies as required.

She asserted a second cause of action for wrongful termination in violation of public policy seeking an array of damages: compensatory and emotional distress damages, front pay, back pay, lost benefits, lost bonuses, punitive and exemplary damages, prejudgment interest, attorneys’ fees, costs and civil penalties, etc. While the lower courts denied requests for a jury trial, the Court of Appeal reversed, determining that the employee could file a petition for an extraordinary writ seeking appellate review of the trial court’s order without waiting until after the trial on appeal to contest the denial. 

They also ruled that Section 1278.5(g) does not afford a right to a jury trial. As the issue is not expressly addressed in the statute, the Court considered statutory language alongside legislative history reasoning that the court and not a jury must rule on this claim due to the statute expressly providing specific remedies. These specified remedies include: reinstatement, reimbursement of lost wages and benefits and legal costs. These are equitable remedies traditionally decided by a court and others deemed “warranted” by a court. Additionally, legislative history of the statute, specifically amendments made in 2007 allowing courts to fashion other remedies as needed to cover the full spectrum of harm endured by non-employee claimants, indicated the need for a court’s decision.

Despite not being entitled to a jury trial on the Section 1278.5(g) claim, the employee could still seek a jury trial under the Tameny claim based on public policies. The trial court would need to hear both claims side by side and allow the jury to decide the Tameny claim and then the court would determine remaining issues.

While this decision means that employees can get around the absence of a jury trial under Section 1278.5(g) simply through a second Tameny claim based on the same public policies, some remedies would be unavailable. When using a Tameny claim, attorneys’ fees and civil penalties are not available. And in some instances, this type of claim may not be applicable depending upon the plaintiff/defendant relationship.

If you have questions or concerns regarding a potential workplace retaliation situation and you need the assistance of an experienced California employment law attorney, please get in touch with us at Blumenthal, Nordrehaug & Bhowmik.

Derrel’s Mini Storage Settles California Discrimination Lawsuit

A Fresno based self storage facility named Derrel’s Mini Storage, Inc. recently settled an employment and housing discrimination case with the California Department of Fair Employment and Housing (DFEH). Charlyn Foote, a former employee, was pregnant when she along with her husband, Kyle Foote, agreed to be resident managers at the company’s Bakersfield, California site. The case brought against Derrel’s Mini Storage was based on the policies applicable to facility managers, specifically, the fact that the policy in place when the Footes were employed and in residence would have banned their baby from housing during hours of operation and on weekends.

California State mandated that the policy violated the Fair Employment and Housing Act (FEHA), designed to protect the rights of Californians seeking, obtaining and holding housing, free of discrimination due to familial status and to seek, obtain, and hold employment without discrimination based on sex. Derrel’s responded to these assertions with arguments that the FEHA doesn’t apply when housing is employer-provided and issued as a condition of employment. They also presented business justifications for the policy. Mediation was attempted unsuccessfully and the DFEH filed suit.

Recently, the state announced the case had reached a settlement. Under the terms of the settlement agreement, Derrel’s Mini Storage has agreed to revise the policies in question that regulate onsite housing provided for facility managers. The new policies would be designed to ensure that facility managers could safely work and live on site with their families.

This case is important as it confirms that the FEHA extends throughout all California housing – including housing that is provided to employees as a condition of employment.

If you have questions about whether or not the terms of your employment are discriminatory or if you are experiencing discrimination in the workplace, please get in touch with one of the experienced California employment attorneys at Blumenthal, Nordrehaug & Bhowmik.

Sedgwick Partner Sued Firm: Gender Bias Case Nears Settlement

Traci Ribeiro, a nonequity partner from Sedgwick LLP’s Chicago office, sued the firm alleging that she and other female lawyers at the firm were being short-changed. Recent updates in the case indicate they may be nearing a settlement deal. Ribeiro first proposed class action citing accusations that the firm’s all-male leadership team routinely denies female attorneys equal pay and opportunities for promotion. Within her complaint, Ribeiro described Sedgwick LLP as a male-dominated culture utilizing systemic gender discrimination.

Definition of Gender Bias: Unequal treatment, particularly in relation to an employment opportunity, such as promotion, benefits, work privileges, pay rate, expected job duties, etc. When differences in these employment opportunities are based on the sex of an employee or a group of employees, this is referred to as gender bias. Gender bias in the workplace, during the application process, as a reason for termination, etc. can be a legitimate basis for a lawsuit in accordance with anti-discrimination statues.

Ribeiro’s allegations continued, claiming that she had not advanced to equity partner even though she was just as qualified and just as accomplished as male attorneys at the firm. In addition, she cited multiple examples of female attorneys that were being paid less than males in equal positions at Sedgwick LLP.

Due to terms included in an alternative dispute resolution provision in the firm partnership agreement, Sedgwick quickly moved the suit to federal court and then arbitration. U.S. District Judge William Alsup indicated in November, 2016 that two things must be determined: 1) whether or not the dispute is arbitrable, and 2) if Ribeiro’s 1012 partnership agreement’s arbitration clause can be enforced.

The parties submitted a joint report noting that they had conducted a meeting April 4th, 2017 with a mediator in an attempt to reach a provisional settlement. Having successfully done so, they executed a memorandum of understanding in anticipation of a full settlement executed in short order. Ribeiro also amended her complaint.

If you have questions regarding gender bias, or how to react to gender bias in the workplace, please get in touch with an experienced California employment law attorney at Blumenthal, Nordrehaug & Bhowmik as soon as possible.

Shedding Some Light on the Serious H1B Visa Program Issue

60 Minutes recently ran a story on the H1B Visa program that showed the impossible situation many American workers found themselves in when they were told to train their own replacements. These workers from foreign countries were a part of the H1B Visa program, which is intended to save taxpayers millions of dollars through outsourcing, but the alleged long-term benefits for taxpayers are of no comfort to those who are facing the loss of their jobs.

American workers interviewed about the situation were still having trouble “wrapping their minds” around actually being forced to train someone to take their own position; their livelihood. Workers agreed with interviewers that the situation feels like being forced to dig their own grave…and then get in it.

Robert Harrison, one of the workers interviewed regarding the situation, is an engineer previously employed by UCSF Medical. Harrison was fired along with 80 of his co-workers recently when their jobs were outsourced to India. Before leaving his position, Harrison, like his coworkers, was forced to train his own replacement. The situation left Harrison, and many American workers in similar situations, outraged and angry. Harrison had to sit next to the worker chosen to replace him in his position at UCSF Medical - wishing the entire time that he wasn’t being forced to work with his own replacement sitting next to him “shadowing” him and attempting to learn all that he knows in order to step into Harrison’s place at the company. Yet doing so was the only way to ensure that he would receive pay through February 2017 as well as a promised bonus. Making the full pay contingent upon fulfilling obligations to train replacements left Harrison, and many like him, with his hands tied. 

Representation for hundreds of workers who have been fired from their jobs in favor of foreign workers with H1B Visas stated emphatically that the situation should offend everyone. She insists that no one should be told that they are losing their job because they are being replaced by cheap, foreign labor. It is an insult to each and every worker being forced to train their own replacements and seek employment elsewhere.

The H1B visa was created in 1990 to help the United States attract the top foreign graduates and offer them a path to United States citizenship. When the program was created, Congress promised American workers that their jobs would be protected. Almost every major tech company has employees here on H1B visas, including Apple, Google, etc. Media companies also embrace the practice. The author of the H1-B Visa bill, Former Congressman Bruce Morrison, has stated that the bill has been “hijacked.”

If you have questions about how the H1B visa program could affect your job or your workplace, please get in touch with one of the experienced southern and northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Applicants Sue PricewaterhouseCoopers LLP for Alleged Age Bias

Applicants of a proposed class of 40 and over job seekers rejected by PricewaterhouseCoopers LLP allege age discrimination on the part of the accounting giant, specifically citing the company’s employment practices. The applicants say that the hiring (in addition to other employment practices) inadvertently favor younger potential employees while discouraging older applicants.

Recently a federal judge in California ruled that the company would need to defend against the claims; in opposition to the previous conclusion reached in October 2016 by the U.S. Court of Appeals for the Eleventh Circuit. The federal judge’s conclusion embraces the view of the Equal Employment Opportunity Commission. The case could lead to a possible showdown between federal courts regarding who can bring this type of discrimination claims under the Age Discrimination in Employment Act. Although the U.S. Supreme Court has been asked to look at the Eleventh Circuit’s ruling so they may address the issue before it comes to that.

If the justices decide to review this particular case, they would necessarily need to consider the question of how much deference lower courts owe to the EEOC’s views on this particular issue.

PricewaterhouseCoopers LLP’s Reaction to the Ruling:

PwC’s argument that the job applicants didn’t have the right to sue for disparate-impact bias because they were not actually hired failed according to the U.S. District Court for the Northern District of California’s decision February 17th. The theory behind disparate-impact claims allege unintended biased effects resulting from policies or practices that may not be explicitly discriminatory. The allegation PwC is facing cites the company’s tool that purposefully recruits college students as limiting potential for hiring to recent college graduates and applicants with impending college graduations.

In October, a similar claim was brought before the Eleventh Circuit regarding the R.J. Reynolds Tobacco Co. Allegations in this case included that the company used guidelines to review resumes submitted for open positions that targeted job applicants that were only 2-3 years out from college graduation. In the R.J. Reynolds Tobacco Co. case, the court held that only the workers already hired could bring disparate-impact claims and that potential employees still in the hiring process or being considered for a position may sue only for intentional age discrimination.

In response to the situation, PricewaterhouseCoopers LLP stated that they respect all anti-discrimination laws, but do not agree with the interpretation of the court regarding the situation. The company spokesperson, advised that the firm believes that the provision of the ADEA does not apply to applicants for open positions.

Lead class counsel Outten & Golden LLP had a different take on the same issue. They found the Court’s decision to follow decades of Supreme Court precedent pleasing in its confirmation that job applicants can challenge age discrimination through the conventional disparate impact theory. They noted that Congress carefully ensured that all individuals could depend on coverage, not just employees. They also pointed out that it has been pointed out by the Supreme Court numerous times that the ADEA should be read similar to other civil rights statues (like the Fair Housing Act or Title VII) in order to include the types of claims being questioned.

U.S. District Judge Jon S. Tigar’s rejection of PwC’s attempted reliance on the Eleventh Circuit’s decision in the Villarreal v. R.J. Reynolds Tobacco Co., was based on a different interpretation of the ADEA in comparison to the majority. Tigar points to the phrase “any individual” used in the law providing a claim for disparate-impact bias and indicates that it does not use the narrower term “employee” even though the narrower term, “employee,” is used in other sections.

Because of the specific word use, Tigar concluded that it can be assumed that Congress’ variation in the terms used was deliberate and indicated that they intended to include all individuals rather than limiting the protections offered to employees. Tigar’s reading is supported by Supreme Court cases that signal disparate-impact claims may be brought by 40+ applicants for jobs.

While the plain language of the law in this case may continue to see varying interpretations, Tigar argued that the law should be viewed as providing protections for 40+ applicants alleging discrimination in employment and hiring policies like PwC’s college student recruitment tool. When a statute’s meaning is not clear the court should grant deference to the stance of the federal agency that is actually tasked with enforcing the law. In the case in question, the agency tasked with enforcement is the EEOC, which has interpreted the ADEA in the past as permitting disparate impact claims by applicants. PwC did not provide a substantial or compelling argument for not adhering to long-established views of the EEOC. Additionally, the law’s legislative history also supports rejection of the position the company is taking that the law only provides protection for employees. The Court added that Congress intended for the ADEA to overcome barriers to employment for older workers, not just age discrimination that may be faced once they’re hired.

If you have questions regarding age discrimination in the workplace or in the hiring process, please get in touch with the experienced northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Are Hugs a Hostile Act in the Workplace?

Are hugs a hostile act? What about in the work environment? In a recent decision by the U.S. 9th Circuit Court of Appeals a sexual harassment lawsuit against Yolo County Sheriff Edward G. Prieto was revived. According to the lawsuit, Prieto allegedly hugged a female correctional officer more than 100 times over the course of 12 years.

In defense of the “hugging,” Prieto argued that he also hugged male employees in the workplace. His lawyers further argued that if he hugged the women in the workplace more, it was simply due to general differences in the way that men and women interact on a routine basis with members of the same and opposite sex. Yet according to the 9th Circuit, hugging can create an abusive work environment if the action is unwelcome and pervasive.

Plaintiff in the case, Victoria Zetwick, was a correctional officer. She also alleges in the suit that Prieto once kissed her when congratulating her on her wedding to another deputy. She claims she saw him hug dozens of other female employees throughout her 12 years on the job, but only give male employees handshakes. During the case, Yolo County defense did get Zetwick to admit that she had been known to hug male co-workers on occasion. The Yolo defense team also pointed out a statement in which Zetwick described Prieto’s hugs as “brief.” There were no sexual comments or other touching.

In 2014, a federal district judge dismissed Zetwick’s lawsuit, but in appeal the court found she had offered up enough evidence to possibly persuade a juror of reasonable mind that she had experienced sexual harassment in the workplace due to Prieto’s tendency to hug female workers in the department. They indicated that it would seem that Zetwick had offered evidence that there were both qualitative and quantitative differences in the conduct of Prieto toward the two genders. In the suit, Zetwick stated that the behavior made it difficult for her to concentrate, left her stressed and anxious and eventually made her resort to sleeping medication.

If you need information about hostile workplace environments or hostile actions in the workplace, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.