Retaliation and Wrongful Termination: California Family Physician Sues Major Health Organization

A retaliation and wrongful termination suit was filed by a prominent California family medicine physician against one of the largest health maintenance organizations in the nation, Kaiser Permanente West Los Angeles Medical Center. Jay Espejo, M.D., M.P.H., claims he was fired in retaliation after he reported a colleague’s, John Miguel, M.D., pattern of misconduct, i.e. unnecessary prescriptions, and the clinic’s alleged long term pattern of providing medical treatment and prescriptions according to patient demand rather than what is actually medically necessary. Dr. Espejo was employed at the medical center since 2011 and was promoted to partner in June.

According to the suit, Dr. Espejo was fired only two weeks after his promotion to partner. He filed suit for wrongful termination and retaliation claiming that his firing was a result of his reporting that his fellow doctor exhibited a disturbing pattern that enabled “doctor shopping” and involved the prescribing of narcotic drugs without medical need apparent in the patient requesting the prescription. Dr. Espejo claims he saw his fellow physician, Dr. Miguel, provide prescriptions for patients who had histories of suspected drug abuse and who were also exhibiting easily identifiable drug-seeking behavior.

Dr. Espejo claims that Dr. Miguel’s behavior was in direct violation of the Controlled Substances Act on multiple occasions. Espejo’s legal counsel cites emailed responses from Kaiser Permanente regarding the violations as evidence that they created a culture in the workplace that both enabled and supported physicians catering to their patients’ demands, which enabled drug-seeking behavior and abuse, doctor shopping, etc. rather than providing the quality (and necessary) medical care that they should have been offering.

For questions or more information regarding wrongful termination as a result of speaking out against improper conduct in the workplace, please contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Creationist Fossil Hunter Sues University After He is Fired

Mark Armitage is a fossil hunter. He was also the manager of the California State University, Northridge’s (CSUN) biology department’s electron and confocal microscopy suite. But after making a discovery he dreamed of for years in May of 2012, he was fired. 

While digging in Montana, Armitage found one of the largest Triceratops horns ever discovered in the Hell Creek Formation, which is a legendary stack of fossil-bearing rocks said to date to the last days of the dinosaurs. He drove the discovery back home to Los Angeles, California, and put it under the microscope. His study revealed both fossilized bone and preserved layers of soft tissue. He was shocked. He published his findings in February of 2013 in Acta Histochemica, a journal of cell and tissue research. He was fired two weeks after publishing on his findings.

He is now in the middle of what many view as a long shot legal battle. His intentions? He wants his job back. He filed a wrongful termination suit claiming religious intolerance as motivation for his dismissal. Armitage is a young-Earth creationist. He also states that his findings of soft tissue in the fossil support his belief that his Triceratops horn and other similar specimens date to the time of the “flood” referred to in the Holy Bible. An event he dates at about 4,000 years ago. Armitage claims that associates at the University could not stand working alongside a creationist who had his work published in a legitimate scientific journal. He feels this is the reason for his termination.  

Those in support of the University point out that religious intolerance claims in this case may have a hard time standing up if the case goes to trial. The associate vice-president of marketing and communications at CSUN stressed during an email communication that Armitage’s position at the university was “temporary.” Armitage also openly admits to engaging students in discussions frequently on topics related to his personal beliefs and the well-preserved cells in the Triceratops horn as proof that they’re young – no more than 68 million years old according to Armitage. US anti-discrimination laws require employers to accommodate employee religious beliefs and practices to a reasonable degree unless doing so causes the employer “undue hardship.”

In this particular instance, Armitage’s personal and/or religious views were such that the institution/employer’s goals were undermined when Armitage shared his thoughts and beliefs with various biology and/or paleontology students.

If you have been wrongfully terminated and you need expert advice on how to proceed, get in touch with the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Recruiting Manager Files Overtime Suit Against Robert Half

On September 5, 2014, a California recruiting manager filed an overtime suit against Robert Half International Inc. The recruiting manager, Theresa Daniels, worked at Robert Half as a recruiting manager from January 2014 through June 2014. She filed suit in San Mateo County Superior Court in California.

The suit filed by Ms. Daniels made a number of claims, including:

• The company misclassified her and other, similar employees as exempt from overtime.
• She and other, similarly classified employees, did not have managerial duties that would classify them as exempt from California overtime laws.
• She and other, similarly classified employees, did not have managerial authority.
• She and other, similarly classified employees, had only a minimal role in supervising employees and not authority to make employment related decisions regarding other employees.
• All recruiting managers, Theresa Daniels included, were strictly monitored and tightly controlled by both the company policy and their direct supervisors.

The suit seeks class action status and back overtime pay for unpaid wages.

Robert Half indicated that there are meritorious defenses to the allegations being made by Ms. Daniels and they will be defending themselves against litigation.

If you or someone you know are misclassified as exempt – preventing you from receiving the overtime pay you are entitled to at work, please contact your southern California employment law experts right away: Blumenthal, Nordrehaug & Bhowmik.

FedEx Drivers Are Employees, Not Contractors According to the National Labor Relations Board (NLRB)

The recent National Labor Relations Board (NLRB) decision in the FedEx case concluded that drivers are employees, not contractors. Their agreement supports the decisions of many other jurisdictions to date.

The ruling was directly related to the FedEx drivers in the Connecticut terminal of a FedEx ground package Systems Inc. unit. The ruling by the National Labor Relations Board that the drivers are employees and not independent contractors was founded on a wide range of factors that all favored employee status.

A four-member panel ruled over one dissenting vote that FedEx Home Delivery was in violation of the National Labor Relations Act in its refusal to recognize a union and appropriately bargain when they sought to represent the drivers. A closer examination of the relationship between the drivers’ and FedEx made it clear to the board that the drivers fit the criteria of classification as employees.

Traditionally, courts and governing agencies have utilized the now familiar “multi-factor” common law test in order to differentiate between workers who should legally be designated as employees and those who should be designed at independent contractors. Over time a new trend has gradually emerged in which the focus has shifted to include and some might argue, focus on, one single factor: who has control over the individual’s work. It has become apparent that this focus does not always rely on the use of power over the individual’s work, but simply the existence of the possibility to exert power/control over the individual’s work even if it hasn’t been invoked.

If you are unsure of your appropriate classification on the job and fear that you may be being denied benefits through misclassification as an independent contractor, contact the experts in employment law at southern California’s Blumenthal, Nordrehaug & Bhowmik. 

California Labor Law: Governor Brown’s New Law

Governor Jerry Brown recently signed Assembly Bill 1897, creating new Labor Code section 2810.3. The new labor code section created by the Assembly Bill applies to almost all companies with 25+ employees that obtain or receive workers to complete work through the “usual course of business” from other businesses that provide workers (otherwise known as labor contractors). The new law makes such companies liable for three things:

• Payment to contractor’s employees
• Any contractor’s failure to secure appropriate workers’ compensation coverage as required
• Compliant actions regarding occupational health and safety requirements (OSHA) in place

Companies will now have a new statutory liability. The legal contraction of labor services in regards to the new Labor Code section isn’t related to the required finding of joint/co-employment or any type of control over working conditions, the method of payment, scheduling of work hours, or the overall work site environment. Under the new law, each company is liable even if they can exhibit proof that they were not aware of violations that existed or occurred.

The new labor code law applies to workers who are completing their job in the normal course of business on site. California employees who are exempt from overtime (i.e. executive, administrative and professional employees) are excluded from the new law’s reach. There are also a few exemptions from the definition of a “client employer” who is covered under the new law: companies with fewer than 25 workers, companies who use 5 or less labor contract workers at any given time, state organizations, homeowners and home-based businesses who receive labor contract services in their homes, and companies providing transportation services. Additional limited exemptions in relation to non-profit, community organizations, unions, apprenticeship programs, motor club services, cable operators, telephone corporations, etc.

The new law will be effective as of January 1, 2015. For additional information regarding exceptions and exclusions of the new labor law, contact your southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

When Independent Contractors are Actually Employees

Sometimes it’s difficult to know if you are an employee or an independent contractor. Even more often it’s hard to know if you actually en employee even though you’re called an independent contractor. If you’re not sure, you might be one of the many who are “employees” in everything but title.

You might be an “employee” if you:

• Work for ONLY one company
• Put in very long hours
• Are under close supervision 

Why should you care if you are classified as an employee or as an independent contractor?

1. Independent contractors pay self-employment taxes.

2. Independent contractors do not qualify for state unemployment relief if they are let go or not “renewed.”

3. Independent contractors are not eligible for employer-paid benefits.

The IRS has a multipart test in place that has to be met in order to qualify for legitimate independent contractor status. If it is determined that an employer has been misclassifying employees as independent contractors according to the multipart test, employers may be subject to penalties assessed for back employment taxes and/or overtime wages for workers.

In recent news, the FedEx drivers in California and Oregon, that were considered independent contractors by the company, were dubbed employees by the court. Now there are drivers for both Uber and Lyft car-sharing services (popular in southern California urban areas) that are also challenging their independent-contractor status.

This isn’t an issue that is likely to go away any time soon. Many businesses tend to push the limits on legal definitions in order to keep labor costs low, and avoid passing official employee count thresholds that can trigger additional coverage requirements and programs (such as family leave and health care).

That’s not to say that being an independent contractor is a bad thing. Independent contracting has a lot of benefits for both the employer and the contractor. A lot of workers enjoy the freedom is can offer. They can set their own hours and the pace of their work. They can work for a variety of different clients. They can deduct their own business expenses from their income. But the problem comes when a worker is hired as an “independent contractor” and then treated like an employee. This set up takes all the benefits out of the arrangement on the side of the worker leaving the employer with all the “good” cards.

If you suspect that you might be misclassified as an independent contractor, contact an expert in southern California employment law as soon as possible at Blumenthal, Nordrehaug & Bhowmik. 

7 Tips on Negotiating Severance

If you suspect or are completely aware that you are about to be presented with a separation agreement at work, you might want to start thinking about your severance package. What’s important to you? What do you expect? What can you accept? What can you NOT accept? If you have no idea where to start when attempting to outline a basic needs and wants list for your soon to be presented severance package, take a few minutes to figure it out before you are asked for a decision on the matter.

Here are 7 Things to Consider in Relation to Any Severance:

1. Know both sides of the agreement: Don’t just know what you’re getting from the company; know what the company is getting from you. And vice versa. You separation agreement signature is worth money since it limits the number legal issues you, the “terminated employee”, can bring against the company.
2. The range of potential financial outcomes is “wide”: Top executives can usually expect to see their severance terms spelled out in their contract of employment. For others, from corporate ranks to upper-level management, things are more unclear. Informal guidelines and the rule of thumb come into play. The rough average is two weeks of pay for every year of employment (it can range from 1-4 weeks depending upon the circumstances at hand).
3. What you get depends on specific factors: Tenure on the job, performance records, reason for the termination, etc. can all come into play when the numbers are being discussed.
4. Work History: The first thing you probably want to examine with an employment lawyer in relation to severance negotiations are any documents that are available that chart your history at the company and how well you performed for them on the job. Documentation could determine whether you have a discrimination case to pursue or not. At the very least, hints of untoward behavior could lead to increased leverage for you during negotiations.
5. Your knowledge of company flexibility: It’s useful if you have some knowledge regarding what is off limits and what you can openly ask for when negotiating your severance. Some things are simply outside of your boss’s control. For instance, your boss can’t make exceptions to laws in place. There’s also not a lot of leeway regarding employee benefits. But many employers have funds earmarked for outplacement services.
6. Tap into relationships: If it’s useful, call relationships you have with bosses, human resource directors, etc. into play during negotiations. It can make a difference. If you have a close relationship with the boss or someone who will be on the other side of the severance negotiation table use it. And make sure to let you employment lawyer know that the relationship exists, too.
7. Look to the future: It’s not all about money. This agreement could affect your long-term career. You want to consider future job references and work history, etc. before you sign off on the severance.

Remember, at that first meeting when you are presented with your severance, you’ll be in shock. Even if it’s not a complete surprise, don’t sign anything. Try to politely request a meeting at a later date to wrap things up and get in touch with an employment law attorney at Blumenthal, Nordrehaug & Bhowmik to handle your severance negotiation.