Discrimination Allegations: Pregnant Women Sue Raley’s

May 7, 2015 - Luciana Borrego, new mother to a baby boy born on Nov. 13, 2013, claims that she lost her job in Ukiah at Raley’s due to her pregnancy.

Raley’s is a part of a West Sacramento-based retail grocery store chain. In June of 2013, Borrego recalls advising her managers of her pregnancy (five months before her baby was born). On July 11, approx. one month later, she came to work with a doctor’s note advising her supervisors that she should not be lifting anything over ten pounds. Within an hour, Borrego claims she was called to the director’s office at the store and advised that she needed to take unpaid leave.

She was advised that she needed to go home, as the company didn’t accommodate pregnant workers even with the doctor’s note. Ms. Borrego claims she was devastated by the treatment she received. She never went back.

Ms. Borrego is one of two plaintiffs in a lawsuit filed in Sacramento Superior Court against Raley’s. The suit contains allegations that the policy mentioned by Borrego’s director that Raley’s didn’t accommodate pregnant workers is unlawful. The company policy makes reasonable accommodations for workers injured on the job, but fails to provide any type of accommodation for pregnant workers.

Raley’s spokesperson responded denying the accusations and objecting the suggestion that they don’t care about all their team members, and in particular, their pregnant team members. They continued by indicating that Raley’s has been known to go above and beyond legal minimum requirements in this area. They are known as a strong, family owned business and, as such, it’s important to them that people see them as appreciative of the role women play in their workplace. They will defend themselves against the charges being brought by the plaintiffs.

Raley’s (also operating under the names Bel Air Markets, Nob Hill Foods and Food Source) operate more than 120 supermarkets in Northern California and Nevada.

The plaintiffs are seeking class action status for current/former Raley’s California employees who were denied acceptable accommodations for pregnancy related needs over the past four years.

If you are interested in discussing California laws protecting pregnant women in the workplace, please contact your southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Sex Bias Class Action Sued Filed Against Twitter

March 27, 2015 - After complaining that Twitter’s sexist company policies were arbitrary and unjust, a software engineer named Tina Huang was fired. She claims she was fired in retaliation for her complaints and filed a class action. The previous Twitter software engineer claims she was one of Twitter’s earliest hires, but that she was overlooked for/denied promotion opportunities because Twitter discriminates against women. She claims that Twitter management fails to promote equally qualified or even more qualified women to leadership positions in engineering.

In her complaint, Huang points out that Twitter’s promotion system creates a glass ceiling for women that can’t be explained. She claims it does so by:

• The company has no meaningful promotion process for engineering leadership positions.
• No company approved, published criteria for promotion, internal hiring, advancement, or application processes.

Ms. Huang started work with Twitter in 2009. At that time, the company had less than 100 employees. She also claims that its dramatic growth in the time since that point is due in large part to the work of its early hires. Many of the early hires now hold senior positions within the company’s structure. Without exception, male employees hold all of those senior positions within the software engineer department.

Huang also claims that the sexual bias problem is one that has been recognized by Twitter. According to the complaint filed by Huang, Twitter has conducted internal diversity studies focusing on barriers blocking female employee advancement. There is a company-wide, pervasive problem with discrimination and acknowledged gender disparities. In an attempt to address the company-wide problem, Twitter recently put in place bias mitigation training throughout the entire company.

During discussions of the acknowledged gender disparity issue, senior management has been known to say that Twitter will “continue improving its ‘diversity standing’…and ‘move the needle.”

In 2013, Huang was put in for a promotion in the software engineering division by her immediate supervisor. Huang claims this is the only method by which to obtain a promotion at the company. The move would have been a critical promotion in Huang’s career. The job would have meant a shift of her focus from coding and individual projects to a leadership role requiring company collaboration. It would also mean access to meetings with high-level management. Huang had provided years of impressive service and work to Twitter. Despite these years on the job, excellent peer and supervisor work evaluations, an absence of any criticism or disciplinary issues, Huang was denied the critical promotion without any explanation. While no official reasons were provided (even when requested by Huang), she was able to pinpoint rumors about her “aggressiveness” and “lack of high quality code” on a particular work project.

In response to her objections to the gender inequality in Twitter hiring and promotion history, she was advised by corporate to take personal leave while further investigation was handled. She then met with the CEO, Costolo, and HR, but they did not provide her with any information about an investigation into her complaint. Her assignments were given to co-workers. Her co-workers were told that she was on personal leave even though they already knew about her complaints regarding Twitter’s promotional process. Huang claims in addition to the original sexual bias, her ability to lead was also undermined by Twitter’s corporate response to her complaint. After three months, she felt she was left with no other reasonable choice, but to resign for the sake of her career.  

Huang feels that Twitter intentionally caused objectively intolerable working conditions and then in full awareness allowed them to continue. She is seeking class certification, her lost wages and benefits, full vesting of her stock options, as well as damages and punitive damages for sex discrimination, retaliation and wrongful termination.

For additional information and answers to specific questions about sexual bias on the job, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Record Number of OSHA Whistleblower Investigations

OSHA has officially reached a milestone in federal whistleblower cases: they have investigated over 3,000 cases in a fiscal year. It’s the first time they have handled this many cases in one fiscal year. According to OSHA, they took on 3% more cases in 2014 (fiscal year) than they did in 2013 (fiscal year). The actual number of whistleblower complaints wasn’t disclosed by OSHA, but a study conducted by Bloomberg BNA in 2014 indicated that only 41% of the complaints made passed the initial screening process and resulted in further investigation (from cases filed 2011-2013).

The meaning behind the increase in cases investigated isn’t clear, but some point to the increased amount of media attention that is being given to substantial settlements and awards being offered to plaintiffs in whistleblower cases. The new high in case filings aside, OSHA’s Whistleblower Protection Advisory Committee’s chairperson, E. Spieler, indicated that there had been predictions that the caseload would increase at OSHA due to the introduction of online filing for whistleblower complaints that occurred in 2013. In combination with the release of the online filing capability, findings in late 2013 by the U.S. Supreme Court on whistleblower provisions (Sarbanes-Oxley Act (SOX)) hold that statutory protection extends to a public company’s private contractors/sub-contractors.

The bulk of the cases were related to safety:

• 1,729 filed under the anti-retaliation clause, Section 11(c)
• 463 filed under the STAA
• 351 filed under the Federal Railroad Safety Act

The growth of cases could spring from a 2014 memorandum of understanding between FMSCA and OSHA. The memorandum put OSHA in charge of handling cases involving commercial vehicle drivers making allegations of discrimination based on the reporting of safety issues.

For more information on safety regulations and standards in California workplaces, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Sexual Harassment Case Results in $300,000 Punitive Damages Despite Nominal Damages Award

In the State of Arizona v. ASARCO LLC, 2014 WL 6918577 (9^th Cir. 2014) (en banc) Angela Aguilar claimed she was sexually harassed on the job, experienced workplace retaliation, was subjected to purposeful infliction of emotional distress and was finally terminated from employment after approximately 11 months working in a copper mine.

The trial, lasting eight days, ending with the jury finding ASARCO liable on sexual harassment claims (violating Title VII of the Civil Rights Act), but not on constructive termination or retaliation claims made by Aguilar. Ms. Angela Aguilar was awarded $1 in nominal damages and $868,750 in punitive damages. Based on the statutory cap that can be found in 42 U.S.C. § 1981a(b)(3)(D), the district court reduced the award to $300,000.

ASARCO cited BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) as they argued for appeal that the 300,000 to 1 ratio of punitive to compensatory damages was in violation of due process rights. The United States Court of Appeals did allow that the cited “Gore” case was of relevance to the context of the case, but clearly noted a differentiation between the two saying that Aguilar, the plaintiff in the case against ASARCO, had asserted a claim (under a statute, Title VII, including provision § 1981 imposing a cap on punitive damages. Using this as a basis for argument, the due process issues that were raised in the Gore case are not applicable to employment discrimination claims filed under Title VII.

The Court also noted that the jury was given instruction from the district court not to award any nominal damages over $1 to the plaintiff, Aguilar. The Court also found no mistake in the district court’s admission of sexually explicit graffiti in bathrooms as evidence. The graffiti used as evidence was similar to the graffiti that was directed at Aguilar. The Court affirmed the award to Aguilar of $350,902.75 for attorney’s fees and other costs.

For additional information on sexual harassment in the workplace and how to handle hostile work environments in California contact your southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Changes to California Employment Law Effective January 2015

As discussed in our previous article, 2015 brings with it some changes to California employment law. Many feel that frequent changes result in employees unsure of what their rights are in the workplace, but the changes to California’s employment law are for the employees protection and address issues that come up repeatedly as the California State Legislature attempts to ensure that all employees are provided with a safe work environment.

If you haven’t yet considered how the changes to California’s employment law in 2015 could impact you or your job, take a minute to consider the potential ramifications. Here are a few every California employee should be aware of effective January 1, 2015:

• Shared Liability for Employers who Use Labor Contractors
• Wage and Hour Changes: From $9 hourly minimum to $10 as of January 1, 2016. And depending on what city you work in, you may be entitled to a higher hourly minimum.
• Paid Sick Days Now Required
• Discrimination Law and Training Requirements were Expanded: There is additional protection included in portions of discrimination laws for: unpaid interns and volunteers.  
• Child Labor Laws Enhanced: Treble damages are now available and civil penalties for Class “A” violations have increased.
• Immigration and Retaliation: Additional clarification and additions to existing make protections for employees regardless of immigration status more clear.

These new laws may impact your workplace. If you are an employee struggling with any of the above issues, please get in touch immediately to discuss what protections you are entitled to and how we can alleviate the situation. Call the employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Labor Laws in the New Year: It’s 2015

With the New Year, labor law changes are coming again. Some might wish that the legislature would simply leave things alone, but the fact of the matter is that things are always changing and that includes action on the part of California employers who want to stay in compliance with labor laws and avoid costly fines and potentially, even costlier litigation.

This year, the California Legislature is making sure that employer regulation stays on the top of everyone’s minds. 574 bills were introduced in 2014 that mentioned the word “employer.” In comparison, there were only 186 bills mentioning the word “employer” introduced in 2013.

It’s important to note that most of those 574 bills were not passed. It’s just as important to note that the several that did pass were not signed into law by the governor. One bill would have penalized employers for limiting the job prospects for unemployed applicants or for discriminating against them due their unemployed status. This bill was blocked by veto.

Having said that, there are a number of significant new laws that could affect private employers in the state of California as well as all employees of private employers in the state that went into effect January 1, 2015. Check back soon for a listing of some of the changes that you might need to be aware of in order to make sure you know how to protect yourself in the workplace.

For information on the latest news and updates regarding California employment law get in touch with the employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Tameny Claims Based on Whistleblower Laws: Recent California Appellate Decisions Expand Scope

There were two recent decisions regarding whistleblower protections that could have a significant effect on the scope of claims based on Whistleblower Laws. The two decisions noted were issued by two separate districts of the California Court of Appeal with both courts issuing a reversal of trial court dismissals of claims for wrongful termination.

The two cases that received the recent reversals were: Ferrick v. Santa Clara University and Diego v. Pilgrim United Church of Christ.

Ferrick’s case was originally dismissed on the basis that her allegations of misconduct on the part of her director involved the financial interests of a private university rather than the required “public at large.” The Court of Appeals upheld this decision, but found specific aspects of Ferrick’s case that did state a cause of action for wrongful termination in violation of public policy, albeit on a narrow basis. The specific instance that caused the reversal was that Ferrick appeared to have reasonable cause to suspect commercial bribery. When she disclosed these reasonable suspicions it was to the university’s budget director. The misconduct that followed this specific instance was found to be not only affecting the university’s private financial interests, but also held implications of public policy that is embodied in Labor Code section 1102.5.  

Diego worked at the Pilgrim United Church of Christ preschool as an assistant director. In response to an anonymous complaint from an employee regarding a “foul odor” in a classroom and inadequate amounts of sand underneath playground equipment, the state licensing division conducted an unannounced inspection of the premises. No violations were found. Diego claims that the director of the preschool suspected she filed the complaint and in response, Diego was discharged several days later. Cause stated was insubordination, as she did not attend a meeting that was scheduled during her vacation. When Diego filed suit for wrongful termination, Pilgrim United protested that (according to former California Labor Code section 1102.5(b) which was in effect at the time of Diego’s termination) protection is only granted to employees who actually disclose state regulation violations. Their argument was that Diego was not protected by the stated employment law because she “did not file the complaint.” The trial court dismissed Diego’s case, but she appealed. The California Court of Appeal disagreed with the trial court stating that the public policy behind section 1102.5(b) wasn’t limited to employees who actually reported violations, but also included protection for employees who were suspected of reporting violations to state agencies. They noted that the intent of the law was to make employees comfortable reporting violations and to exclude employees “perceived” as whistleblowers from the protections offered by the statute would instead of a discouraging effect that would keep more employees from reporting violations.

To note: Labor Code section 1102.5(b) was amended as of January 1, 2014 to protect employees from retaliation based on the employer’s belief that they disclosed a violation. Claims for wrongful termination in violation of public policy, such as those stated above, are also known as Tameny claims. The California courts of appeal seem reluctant to confirm dismissal or summary judgment when the public policy that is at issue concerns a whistleblower or perceived whistleblower and whistleblower statutes. These two cases indicate that the public policy behind the whistleblower statute should be interpreted broadly in order to increase the protection for employees that may not be offered protection by the statute if interpreted as expressly stated. 

These two cases are significant because in both the courts supported Tameny claims for individuals who, previously, would have been denied protection under the whistleblower law. With Diego we see an employee who never blew the whistle being allowed to pursue a Tameny claim even though in the past the protection from adverse action was only offered to actual whistleblowers. With Ferrick we see an employee pursuing a Tameny claim even though the reports were only made internally. In the past, employees who reported internally were not afforded the same protection as a clearly defined “whistleblower.”

If you need more information on whistleblower laws in California or how California employment law protects employees from adverse action from employers after reporting violations, contact the experts at Blumenthal, Nordrehaug & Bhowmik.