Workplace Retaliation: Claim Fails When Employees Age Discrimination Opposition Seen as Unclear

In a recent workplace retaliation case, the claim failed when a California appeals court ruled that the employer could not possibly have been aware of their former employee's actions taken to oppose the age discrimination of a co-worker at the company. 

All the Details of the Case: Susan Colborn, Plaintiff and Appellant, v. Chevron U.S.A. Inc., Defendant

Court: Court of Appeal of the State of California, First Appellate District, Division Two

The Plaintiff, Susan Colborn, is a former employee of the Defendant, Chevron. The Plaintiff alleges she worked for Chevron from 1988 until she was terminated in March 2011. 

History of the Case: Susan Colborn v. Chevron U.S.A. Inc.

Colborn alleges that in January 2011, Chevron management assigned her direct report a low-performance rank - lower than what they previously agreed on. As a result, Colborn claims she contacted HR to lodge a complaint that the final ranking given to her direct report was not fair. According to the suit, the HR department advised Colborn that the performance rank would not be changed. 

Details of the Case: Susan Colborn v. Chevron U.S.A. Inc.

The direct report in receipt of the allegedly unfair performance rank was supposed to be put on a performance improvement plan. However, Colborn refused to do so. She also refused to meet with HR about the issue. On February 23, 2011, Colborn received her own ranking, and it was the lowest ranking she had ever received in her history with the company (23 years of employment). On March 10, 2011, Colborn was fired. 

Lawsuit Filed Claiming Wrongful Termination and Retaliation: 

Colborn filed a lawsuit after Chevron terminated her employment. Plaintiff claimed that she was terminated in retaliation, which is a violation of California labor law. According to court documents, the Plaintiff alleged Chevron fired her because she complained that her direct report's performance ranking was discriminatory due to age. 

The Trial Court Dismissed the Complaint:

Colborn brought her retaliation claim under the California Fair Employment and Housing Act (FEHA). The Act makes it unlawful for an employer to fire an employee because they opposed an unlawful practice. However, before the case went to trial, the trial court dismissed Colborn's complaint. So she appealed. 

The Burden to Introduce Facts in FEHA Retaliation Claims: 

The California Supreme Court adopted a three-state burden-shifting test for discrimination claims, the McDonnell Douglas test. The test applies to any FEHA discrimination and retaliation claims. Under the McDonnell Douglas test, Plaintiff must produce facts that a jury could use to infer discrimination occurred in the situation. Plaintiffs must show that they engaged in activities protected by FEHA, the employer took adverse employment action against them in response, and there was a causal connection between the two. 

A Prima-Facie Case of Retaliation: 

If the Plaintiff can present facts fulfilling the three above requirements, this is known as a prima-facie case. When the Plaintiff fulfills the burden to present the necessary facts, a presumption of discrimination arises and shifts the burden of producing evidence showing there was no discrimination onto the employer who must present facts showing they acted for nondiscriminatory reasons. The Defendant in this case successfully argued that the Plaintiff did not establish a causal link as required, and that even if they did, the case should be dismissed because the employer met its burden to establish a legitimate nonretaliatory reason for the adverse employment action. The appeals court agreed and affirmed the trial court's decision to dismiss because there was no evidence to show that the employer knew that the Plaintiff's actions were based on her belief that the employer was engaging in age discrimination against her direct report. As such, a causal connection was not established. 

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.

Are Whistleblower Retaliation Lawsuits More Expensive in California?

California Governor Gavin Newsom signed Assembly Bill 1947 into law in September 2020 with an effective date of January 1, 2021. AB 1947 authorizes courts to award attorneys’ fees to whistleblowers who prevail in their case, making it more accessible for employees with retaliation claims to file against California employers. 

California’s Current Whistleblower Protections:

California Labor Code 1102.5 protects employees from retaliation for disclosing violations of the law, or offering testimony, information, etc. regarding a violation. Retaliation has been recognized in many forms including almost any adverse employment action that could affect the terms of employment or conditions of employment. However, it does not usually recognize personnel decisions like internal transfers as an “adverse employment action” that can be defined as retaliation.

Under the Current Law, Whistleblowers Can Seek Remedies Including:

Current legal protections for whistleblowers in California do include potentially significant consequences for employers that violate the law including back pay and benefits, payment of the employee’s actual damages, and/or civil penalties ($10,000 per violation). Under the current law, whistleblowers are not entitled to receive attorneys’ fees after winning their case under Section 1102.5. (Although some plaintiffs have successfully sought their attorneys’ fees under different statutes).

As Of January 1, 2021, Labor Code Section 1102.5 Will Authorize Award of Attorneys’ Fees:

When AB1947 goes into effect on January 1, 2021, courts will be authorized to award “reasonable” attorneys’ fees to plaintiffs who bring a successful action for a violation under Section 1102.5. The new legislation means California whistleblowers no longer need to seek an award of attorneys’ fees under different statutes or theories. As a result, California can expect to see an increase in the number of retaliation claims.

Supporters of the legislative changes argued that workplace anti-retaliation claims are the foundation for all other employee rights in the workplace (i.e., overtime pay, minimum wage, meal periods and rest breaks, workplace safety, protection from discrimination and harassment, etc.) If employees have a rational fear of termination for seeking their basic rights in the workplace, any “protection” for those rights is severely undermined. AB1947 is a protection for the “foundation” of employee rights in the workplace while also making it more financially accessible for litigants to obtain counsel to take a whistleblower retaliation case to court.

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

Current and Former Carta Financial Tech Company Workers Allege Workplace Retaliation

Financial tech start-up company, Carta, intended to transform the way workers get paid. The company believed working for a paycheck was an evolution of indentured servitude and serfdom that needed to change. Carta believed the next evolution was employees owning a stake in their companies – they wanted to create more “owners.” 

Do What I Say Not What I Do: Did Carta Actually Treat Employees Like “Owners”?

While Carta openly declared their “ownership for all” theory, its standard operating procedures didn’t seem to reflect the published mission. The company allegedly acted inequitably to a large number of their 838 employees. Current and former employees of the hot Silicon Valley company say that if they spoke up about workplace problems, they were belittled, excluded, and disciplined. The experience was nothing short of workplace retaliation.

Workplace Retaliation: Employees Who Complain See Negative Response

When an employee voices a concern about the workplace or their job environment, some employers respond negatively. Carta employees claim the company responded by making the employee who spoke up feel like they were at fault for their own mistreatment. Speaking up at Carta allegedly resulted in being sidelined, demoted or passed over for deserved promotions, or even seeing a cut in hours or pay cut. One woman was fired after she had an emotional outburst in a meeting. Another woman was pushed out of the company after she voiced regulatory concerns. 

Former Carta Fintech Workers Push Back: 

Some of the former Carta employees are pushing back. Three different former employees sued Carta in the last year alleging wrongful termination, one of which was the former top operations executive. Last month, a former Carta marketing executive, Emily Kramer, sued Carta alleging gender pay discrimination and retaliation. According to Ms. Kramer’s lawsuit (and other other lawsuits), Mr. Ward set the tone at the company by denigrating employees and being dismissive of valid concerns. Ward’s blunt management style generated loyalty with some, but alienated others.  

Carta’s Workplace Experience Directly at Odds with Their Public Crusade Seeking Fairness for Workers

The group of current and former Carta employees involved in the lawsuit insist that the workplace they experienced at Carta was directly opposed to the fintech start-up’s crusade seeking fairness for workers and more equality in the workplace for women. Mr. Ward founded the Palo Alto, California start-up, Carta, in 2012 (initially calling the company eShares). Carta software is used by many investors, start-ups, and employees to manage, issue and value their equity with Carta receiving a fee for the use of the valuation systems. 

If you need to discuss workplace discrimination or if you need to file a wrongful termination lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago. 

Employment Law Issues: Are Nurses Being Punished for Speaking Out About Coronavirus Unpreparedness?

Some say that nurses know we were not prepared for the coronavirus, and those who speak out are punished.

Nurses Not Provided with Basic Personal Protective Equipment: 

Chelsea Halmy worked the night shift at Providence St. John’s Health Center in Santa Monica. When she reported for her shift on April 11, 2020, she made a routine request for an N95 respirator mask before she came into contact with patients. As an experienced healthcare professional, she was well aware that the N95 masks were the most effective protection against the novel coronavirus. Yet the routine request was declined by her supervisor, who advised her that a standard surgical mask was good enough.

Speaking Out About Unsafe Work Environments:

Halmy refused to work with patients until she was provided with the N95 equipment. After her refusal, she was taken to a closed room where her supervisor read from a script that threatened to charge her with insubordination and a “patient abandonment” report to the state Board of Registered Nursing (which could result in the loss of Halmy’s hard-earned nursing license). 

Retaliation in the Workplace for Refusing to Work in Unsafe Environments:

Her supervisor then asked her if she would accept a direct order to work with a specific patient who was a Covid-19 patient. She responded that she did want to take her assignment but didn’t feel comfortable going into the room with the patient without an N95 respirator. Three other nurses were allegedly subjected to the same treatment that same night, and seven others earlier that same week. All the nurses who did not accept their patient assignment without the requested N95 respirator were sent home. Since that time, the hospital has backed away from its stance that N95 masks are not necessary for nurses in the unit, but the ten nurses are still on suspension.

Nurses and Healthcare Professionals Throughout the Nation Are In Similar Situations:

Nurses at UC Irvine Medical Center, UCLA Medical Center, and many other healthcare facilities throughout California have participated in multiple candlelight vigils and protests since January 2020 in an attempt to bring attention to conditions and the need for additional protective gear and N95 respirators so they can safetly treat coronavirus patients. Registered nurse Patty Pinedo actively sought to treat residents in a West L.A. hotel that was turned into housing for the homeless during the coronavirus pandemic.

Other Essential Workers Are Also Facing Likely Exposure During Covid-19 Pandemic: 

Many other front-line occupations that require direct contact with others can result in dangerous levels of exposure to the virus, like grocery store workers, delivery drivers, etc. But most will agree that healthcare workers are the most vulnerable at this time since their work requires them to come into contact with the virus and to be in close contact with Covid-19 patients in confined spaces. Nurses spend more time with patients than most other hospital employees and staff, and the coronavirus is taking its toll on California healthcare workers. In addition to the threat of exposure to the virus, nurses seem to be suffering an outbreak of threats of termination and discipline from management in response to routine requests for standard safety equipment (or PPE), or public complaints about their facility’s lack of preparation.

More and more healthcare professionals are speaking out about unlawful practices and policies being instituted by healthcare facilities in response to shortages and unpreparedness during the Covid-19 pandemic.

If you need to file a whistleblower lawsuit or if you need to discuss workplace retaliation, don’t hesitate to get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Whistleblower Claims Litter the Horizon During the Covid-19 Crisis

In the past several weeks, we have seen some mighty changes due to the spread of the coronavirus. In recent weeks, we’ve also seen many employees (particularly health care industry employees) claiming workplace retaliation after reporting health and safety concerns in connection to Covid-19 and exposure to the rapidly spreading coronavirus.

Whistleblower Claims Due to Covid-19 Pandemic on the Horizon: 

According to a recent article in the Washington Post, OSHA (Occupational Health and Safety Administration) had already received thousands of complaints from employees just a week into April 2020. The allegations were from employees citing a lack of protections against Covid-19 in their work environments. On April 8, 2020, OSHA released a press release urging employers to remember that it is illegal to retaliate against workers that report unsafe or unhealthy conditions in the workplace during coronavirus.

What is the Occupational Health and Safety Act of 1970/  

The Occupational Health and Safety Act of 1970 (OSH Act) is one of the whistleblower protections, and anti-retaliation statutes employees can depend on for protection during the Covid-19 crisis. Section 11(c) of the Occupational Health and Safety Act of 1970 prohibits employers from retaliating against employees that exercise their rights under the statute, including raising a health or safety complaint.

Does the Law Require Employers to Provide a Safe Workplace?

In Section 5(a)(1) of the OSH Act (often referred to as the General Duty Clause), employers are required to provide a workplace free from “recognizable hazards” that are likely to cause death or severe harm.

Does OSHA Enforce Any Regulations Specific to Health Concerns Associated with Covid-19?

OSHA also enforces regulations that are specific to health concerns that have been associated with Covid-19.

29 CFR § 1910, Subpart I: Outlines OSHA’s Personal Protective Equipment standards requiring the use of gloves, eye and face protection, and respiratory protection for employees working in specific industries. 

29 CFR § 1920.134: Defines OSHA’s Respiratory Protection Standard and requires that employers implement a comprehensive respiratory program when respirators are necessary to protect workers. 

OSHA recently issued temporary guidance related to the enforcement of respirator annual fit-testing requirements for health care workers during the COVID-19 pandemic.

OSHA’s Guidance on Preparing Workplaces for COVID-19, a recently published document related to the current crisis, contains recommendations for employers on how to provide a safe and healthy workspace during the COVID-19 crisis. 

What is the National Labor Relations Act? 

Certain sections included in the National Labor Relations Act prohibit employers from retaliating against an employee for various reasons. A March 30, 2020 decision from the National Labor Board (Maine Coast Regional Health Facilities, NLRB, 01-CA-209105, 01-CA-212276) indicates that this section applies to healthcare workers voicing concerns about working conditions in health care facilities. 

California Whistleblower Statutes Amid Covid-19 Crisis: 

In the state of California, we have numerous statutes that offer employees the right to make a whistleblower or workplace retaliation claim. Some of the laws are specific to healthcare workers. 

California Health and Safety Code § 1278.5: Designed to encourage medical workers to report suspicions of unsafe patient care and conditions to government entities, it prohibits healthcare facilities from retaliating against an employee or worker for presenting a complaint related to the quality of care, services or facility conditions. 

California Labor Code § 6310: Prohibits employer retaliation against employees who complain about employee safety or health. 

California Labor Code § 6311: Prohibits employer retaliation against employees who refuse to violate occupational safety or health law or any duty that would create a hazard to themselves or other employees during their job.  

Tameny Claim: In California, employees may bring a common law claim for retaliation or a Tameny claim. Policies that can give rise to a Tameny claim include protections against retaliation for reporting unsafe working conditions. Employees can bring a Tameny claim in addition to claims arising under California’s whistleblower statutes.

If you need to discuss workplace retaliation or if you need to file a retaliation lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Caltech Whistleblower Case Jury Trial Currently Underway

Farshid Roumi, a Caltech scholar, was allegedly fired for whistleblowing. Roumi worked in Pasadena-based Caltech’s engineering and applied science division. In 2017, Roumi filed a lawsuit in Los Angeles County Superior Court alleging retaliation and wrongful termination.

Roumi claims that he was fired after he exposed misappropriation of funds from the Department of Energy. Superior Court Judge Monica Bachner is presiding in the downtown Los Angeles Stanley Mosk Courthouse courtroom.

Roumi finished his doctoral dissertation at Caltech in 2010, “Shape Changing Transformations: Interactions with Plasticity and Electrochemical Processes.” He currently works as the Chief Executive Officer of his own company, Parthian Energy.

The whistleblower retaliation lawsuit Roumi filed is not the first that Caltech will face. In 2014, a Caltech professor, Sandra Troian, filed a complaint alleging retaliation after she provided the F.B.I. with information about a researcher who released restricted data to Israel and then made it public. Troian alleged that retaliation followed in the form of false accusations of research misconduct, prevention of her participation in campus events, and being denied over $1 million in grant funding.

Caltech’s official policy clearly prohibits retaliation. To quote policy, Caltech  “prohibits retaliation against an individual who makes a good faith disclosure of suspected wrongful conduct.” The Institute also maintains whistleblower hotlines online or by phone.

If you need to discuss labor law violations or if you are experiencing retaliation in the workplace, take action to get the resolution you deserve. Get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw L.L.P. With conveniently located employment law offices in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago; we are here when you need help.

Former Freelancer Loses Lawsuit Against LA Times

In recent news, the LA Times took home a win after the California Court of Appeals affirmed the dismissal of a former freelancer’s defamation and employment lawsuit. The former freelancer, Frederick Theodore Rall III, was a political cartoonist and blogger for the well-known media conglomerate. In his lawsuit, he brought claims of defamation, wrongful termination, intentional infliction of emotional distress, retaliation, and other employment law violations, against the paper – all stemming from the LA Times’ decision to disassociate itself with Rall and publish a note to readers that questioned the accuracy of a blog post Rall posted describing an interaction he had with police. Rall claims that he was handcuffed, thrown against a wall, and in the process his ID was thrown into the gutter.

After an investigation, the LA Times concluded that there were serious questions regarding the accuracy of the recounting of events and allegations made against the police in the recounting. They noted factual inconsistencies and stated that the paper would no longer be publishing the writer’s content. After reader responses, the paper published an additional item that offered a more detailed analysis of the event with their investigation findings including the LAPD records of the event, etc.

The LA Times filed an anti SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the complaint in response to Rall’s lawsuit. The motion was granted by the trial court. The dismissal was confirmed by the California Court of Appeal – holding that the LA Times sufficiently established that the report offered to readers and the decision by the paper to stop publishing work by Rall were protected activities under the First Amendment and the “fair report privilege.”

If you have been wrongfully terminated or if you need to discuss your rights in the workplace and how to seek justice when you have been discriminated against on the job, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.