Wrongful Death Lawsuit Related to Coronavirus Plagues Safeway

August 27, 2020 by

wrongful death lawsuitWrongful death lawsuit filed against Safeway. Pedro Zuniga was one of 51 employees who contracted COVID-19 while working in a Tracy, California Safeway warehouse in April 2020. After over two decades of employment there, he succumbed to complications of the disease on April 13. He was just 52 years old. His widow has filed a wrongful death lawsuit against Safeway, alleging that her husband would not have died had the company adhered to federal and state safety guidelines and enacted common-sense policies. Instead, the suit claims, Safeway focused on company profits at the expense of employee safety and health. 

Precarious Conditions Alleged 

According to the wrongful death lawsuit, warehouse employees were beginning to exhibit symptoms of COVID-19 in the spring of 2020. Nonetheless, the company did nothing to address the situation: 

  • No personal protective equipment was issued to employees;
  • Signage in the warehouse actually discouraged the wearing of PPE in March;
  • Social distancing was never attempted and workers were obligated to work in close contact with one another;
  • Employees were “deterred” by managers from calling in sick;
  • Workers who experienced symptoms and expressed concerns about working were threatened with the loss of “points,” which could ultimately result in termination.

In fact, the company made efforts to conceal the warehouse outbreak, which affected at least 3% of the 1,700 employees.   

Zuniga’s Situation 

Mr. Zuniga tested positive for coronavirus on April 1, and was hospitalized shortly thereafter with pneumonia, a serious cough, fever, and trembling. In a matter of hours, he was put into an induced coma in the ICU, only to die days later of cardiopulmonary arrest and respiratory failure. 

Safeway Wakes Up 

After Zuniga perished, Safeway apparently woke up to the seriousness of the situation and began to enact appropriate protective measures at the warehouse. Employees began to have their temperatures checked prior to entering the warehouse in Tracy in an attempt to prevent symptomatic employees from spreading the disease. While it is a step in the right direction for current employees, the change in approach does nothing for Zuniga and his widow, children, and grandchildren.   

CDC Guidelines 

The Centers for Disease Control have a number of guidelines for the workplace, including making workplace hazard assessments, conducting health evaluations on a daily basis, encouraging mask wearing, improving ventilation systems, and implementing social distancing protocols.  Furthermore, disinfection strategies should be employed in common areas, and employees should be reminded of appropriate hygiene practices.  Essentially, workers who feel ill should stay home.  [Read more…]

Filed Under: California Labor Law, News, Wrongful Death Tagged With: , ,

Sex Discrimination on the Job

August 20, 2020 by

sex discriminationSex discrimination is a pervasive problem in America. Over 40% of female workers indicate that they have experienced on-the-job discrimination due to their gender. This discrimination occurs regardless of experience, education, or age. Bias and discrimination in the workplace occur in a number of ways, and include a range of unacceptable behaviors, such as: 

  • Lesser earnings than male counterparts for essentially the same work;
  • Being treated as incompetent;
  • Being subjected to seemingly insignificant slights on a regular basis;
  • Getting less support from superiors;
  • Being overlooked when it came to promotions or projects;
  • Being denied job positions all together.

Consider the case of a California woman who attempted to make telecommuting  work, only to experience sex discrimination from her employer: 

When Drisana Wallace was let go from her position as an account executive at the insurance firm HUB due to a reduction in staff, she suspected the company was playing fast and fancy with the facts. She quickly filed a lawsuit against the company detailing her experience and claiming bias and sex discrimination were the real reasons behind her termination. 

Pandemic Accommodations 

Due to the pandemic, Wallace was allowed to perform duties from her home in San Diego.  According to her claim, her supervisor, Daniel Kabban, had a number of complaints about her job performance. In particular, Kabban did not appreciate the fact that Wallace was caring for two young children at home while working, one of whom was still nursing. Despite her best efforts to manage all of the demands of her busy schedule, including working at night when the children were asleep, Wallace fielded complaints from her employer that sometimes her children could be heard in the background on phone calls. Wallace contacted human resources in an attempt to get direction on how to deal with the situation, and was advised that the company anticipated that their managers would deal with situations with more flexibility. She felt better, but not for long.

According to Wallace, Kabban continued to schedule calls for her during times when her children were active, making it impossible to keep them from being heard. Sometimes he assigned her tasks that were on an expedited turnaround schedule, and he was displeased when she was unavailable to accept them. Wallace accuses Kabban of repeated sexist comments, and asserts that fathers who worked from home were not held to the same standard that she was.

When she contacted HR again, she was laid off. She believes the company is hiding behind the pandemic to justify getting rid of an employee who required some basic scheduling accommodations that any man would have been granted without a second thought.  [Read more…]

Filed Under: Blog, Sexual Discrimination Tagged With: , ,

California Walmart Employees Awarded $6 Million

July 15, 2020 by

california walmartWhen the company did not properly address employee concerns in a California Walmart, workers took matters to the courts for a resolution. It turns out to have been an excellent strategy, with California courts once again maintaining the rights and dignity of the state’s workforce.  If you find yourself working for an unscrupulous employer who fails to provide proper compensation, a local labor and employment attorney may be able to help. 

Walmart’s Violations

In a class action suit filed on behalf of about 5,000 workers in a Chino, California Walmart, employees received a big win when the court found the company had, indeed, violated the Unfair Competition Law (UCL) and/or California’s Private Attorney General Act (PAGA) in several ways.  Walmart was found to have neglected to compensate employees fairly:

  • Meal and rest periods were not provided;
  • Employees were not compensated for all hours worked;
  • Overtime pay was denied to employees;
  • Final paychecks were not forthcoming;
  • Wage pay stubs did not contain complete and correct itemization.

Legal Expectations

California’s Unfair Competition Law is designed to provide relief for unfair business practices. This may relate to practices that are fraudulent, that violate statutes, or that otherwise are unfair to employees.  Under the UCL, plaintiffs may be reimbursed monies owed and businesses may be forced to change their practices.    

The Private Attorneys General Act gives employees the power to sue for civil damages related to employer violations of the labor code. 

The law is clear regarding meal breaks for employees who work five hours or more:  

  • Employers are required to provide a 30-minute break that is unencumbered by workplace duties;
  • The meal break must be uninterrupted time over which the employer has no control;
  • Employees may not be impeded or discouraged from taking these breaks.

For employees who work over 10 hours in a single shift, a second break must be provided, as well.

Details of the California Walmart Case

In the California Walmart scenario, the court found that employees were discouraged from taking their guaranteed breaks by an onerous security check they were required to undergo when leaving the building. Now, while it is not incumbent upon an employer to ensure that employees perform work during their breaks, when a lengthy security check significantly diminishes the amount of time allowed for a break, the company can be found in violation of the law. In the case of Walmart, that is precisely what occurred, and a jury believed employees who claimed it was an impediment to taking lunch breaks. [Read more…]

Filed Under: Blog, Wage and Hour Law Tagged With: , , ,

Can Protesting Affect Your Job?

July 1, 2020 by

protestingThese are highly political times we are living in, with the sudden advent of mass protests across the nation in support of George Floyd and the Black Lives Matter movement. What does protesting have to do with your job?  A local labor and employment attorney can answer this, and other questions you may have. 

Laws to Consider 

While clearly the First Amendment is a central issue relating to any protest, employees and employers alike should be aware that other laws may apply to actions, as well.  It is important to be aware of California’s Government Code 3203, which bars an employer from participation or involvement in political activities.  An employee may demonstrate or express political views without reprisal, as long as it does not occur on company time or using company technology or materials.  It is also important that employees cannot be wearing their workplace uniforms while involved in political actions (Government Code 3206). 

Employer Involvement in Political Action 

In some cases, employers may want employees to participate in political action.  While it is lawful for them to broach current issues and talking points with employees, they may not incite employees to participate in political action, or pressure them into taking a certain stance on a particular issue. 

Can You Legally Criticize Your Employer Publicly? 

The First Amendment—freedom of speech—is a constitutional right.  Nonetheless, if your public comments can be linked to workplace disruptions in operations, it could get an employee into trouble if the employee either: 

  • Shared company secrets, or;
  • Misrepresented their views as those of the company’s, or;
  • The employer’s interests are seen to outweigh your right of privacy in your personal life.

More specifically, if your employer can prove that your actions caused significant harm to the company’s reputation, or that those activities limited your ability to do your job effectively, including preventing you from being able to work with colleagues, then employer can take action against you. 

What if You are Arrested During a Protest? 

Unless you are a law enforcement officer, your boss cannot fire or otherwise reprimand you for being arrested. On the other hand, if you do not show up for work as scheduled because you are behind bars, and you do not have personal days to use for un-prescribed purposes you may have a problem.  It only becomes an employer issue if various employees are treated differently based on their views, race, ethnicity, or other protected area.  [Read more…]

Filed Under: Blog, California Employment Law Tagged With: ,

Big Win for LGBTQ Workers

June 24, 2020 by

lgbtq workersLGBT workers win big just days since the Trump administration put forth regulations denying health care benefits for Transgender Americans, literally denying the civil rights for patients who seek medical services. In a major contrast to the Administration’s view, however, the Supreme Court ruled that LGBTQ workers should be afforded the same protections as every other American. 

Discrimination on the Basis of “Sex” 

At issue is the meaning of the word “sex” in discussions of discrimination. Under the Obama administration, provisions related to sex discrimination included issues related to gender identification. The current administration however, believed that the legal reality separated transgender people from others in terms of discrimination rules. That gave doctors the right to refuse to treat transgender people if they choose. 

The LGBTQ Workers Supreme Court Ruling 

It appears that the Trump Administration came into direct conflict with a Supreme Court ruling that affirmed federal laws stating that government must fully protect transgender individuals from discrimination. In a 6-3 vote, the court stated that employers cannot fire workers simply because they are homosexual or transgender. The ruling was embedded in the 1964 statute—Title VII of the Civil Rights Act–barring discrimination on the basis of several factors, one of which is sex.  Conservative voices have contended that the law was written without  transgender people in mind decades ago.  However, as Justice Gorsuch wrote in the majority decision, “It is impossible to discriminate against a person for being homosexual or transgender without discrimination based on sex.”  The landmark decision will provide a safety net for LGBTQ workers and individuals across the country, especially since only about half of states have protections for these individuals on the books. Notably, President Trump agreed to bend to the new ruling, stating that the court is very powerful, and the findings must be adhered to. 

California Law 

In California, the Fair Employment and Housing Act (FEHA) has protected the rights of Californian LGBTQ workers from employer discrimination for years. Gay, lesbian, transgender, and bisexual individuals may not be discriminated against when it comes to job applications and interviews, hiring, compensation, promotions, firing, working conditions, and opportunities in the workplace. In the event discrimination does occur, courts may rule that companies may be on the hook to address a number of issues, including: 

  • Past and future earnings;
  • Attorney’s fees;
  • Emotional distress;
  • Punitive damages;
  • Changes in company policies;
  • Training to address discrimination issues.

[Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: , , ,

Sex Bias in Employee Performance Evaluations?

June 18, 2020 by

sex biasThe sex bias referred to in this article may actually surprise you. Sometimes it is difficult to know precisely what is expected in the workplace. You would think that performance evaluations are generally a good indicator of just how well you are performing.  Unless they are not. 

The Sex Bias Study

Researchers studied supervisor responses to essays written by an unknown author. They then were asked to judge the writing on several criteria, with essays appearing to have been written by either Sarah or Andrew. When supervisors assumed the work was done by a female, truthful remarks were rendered less than 10% of the time. In contrast, when essays were presumed to have been written by males, truthful comments were given in more than 90% of cases. In fact, females were given feedback that consisted of outright lies in two-thirds of cases, compared to just 33% of males being given similar feedback.

Why it Happens

Are supervisors acting with ill-will with regard to their female employees? One strategist from a California-based consulting firm believes bosses tend to water-down reviews for female employees in an attempt to salvage relationships and preserve feelings. Females are viewed as less capable of taking hard truths, so employers lean toward soft-selling difficult information. Despite best intentions, it is extremely harmful to women in the workplace.

Why it Matters

It turns out that generally speaking, supervisors give women more positive feedback than they give their male counterparts, and it is often much less honest. Why does it matter? If you are not getting the constructive criticism you deserve from your boss, chances are it will impact your ability to progress and move up the ladder. This formerly unstudied issue has likely led to restricted access in the workplace for women across careers simply because they are not made aware of the shortcomings in their daily performance. In fact, it could be viewed as a form of gender discrimination.

A number of studies indicate that, although females receive fewer negative comments related to their work, and more praise, they are also given significantly fewer resources with which to perform their jobs. Certainly, the connection between feedback and being allocated the means to do a job well are a real problem. 

Meaningful Feedback Matters

Researchers note that all employees, regardless of gender, deserve to be given accurate feedback.  Positive, but untrue comments about a woman’s performance in the workplace are a serious problem, whether or not they are benign in delivery.   [Read more…]

Filed Under: Blog, Sexual Discrimination Tagged With: ,

Workplace Flexibility Benefits Everyone in the Era of Social Distancing  

June 9, 2020 by

workplace flexibilityA new world of workplace flexibility? Not quite gone are the days of a strict 8-5 work day, but many businesses are seeing the benefits of adapting to the times, and that means retooling expectations for employees in a number of ways. Accommodations can benefit both the employee and the employer, and in some situations, may be essential under state and federal law. In any situation, employers have a responsibility to provide a safe work environment for employees. With real concerns about COVID-19 plaguing Americans, it is important for every company to rethink the way they do business. The failure to do so could result in serious consequences, one of which is an employee lawsuit.

 

The Americans With Disabilities Act

 

The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for employees with a qualifying physical or mental impairment that limits their life activities in some way. That being said, the disabled individual must be able to perform what are considered to be essential functions of the job, or those that are basic to the job itself. The ADA regulations apply to any employer with 15 or more workers. The types of accommodations vary, but one that is consistently called out as reasonable is allowing an employee to adjust the work schedule. The truth is, employers often benefit from such accommodations every bit as much as workers do because they get high-quality work from well-qualified employees.

 

Examples of Workplace Flexibility

 

The fact is,flexible work expectation often benefit all parties, regardless of disability.  Particularly as the nation struggles to respond to a pandemic, a number of flexible workplace arrangements may make sense: 

  • Telecommuting: Some positions may lend themselves to telecommuting, allowing employees to work and conference via computer. Potential benefits include the obvious reduction in travel and installation of workplace flexibility accommodations for those with disabilities. Other employees may also enjoy less commuting, less exposure to potentially contagious individuals, and more flexibility generally.
  • Alternate Scheduling: In order to reduce traffic in the workplace, it may be possible to alternate shifts, keeping fewer employees in an area at a time. In the era of social distancing, this may be a key strategy to put more space between workers. It may also benefit employees who prefer alternate shifts in order to accommodate child care or who are dealing with other issues.

Discrete Measures Designed to Protect

 

For service-oriented industries, social distancing gets a little more complicated. Some tips that might be utilized include: 

  • No-visitor policies;
  • Staggering shift work;
  • Pooling workplace tasks to reduce congestion;
  • Adaptations to workplace design;
  • Streamlining procedures.

[Read more…]

Filed Under: Blog, COVID-19, Employment Law Tagged With: , , ,

Unpaid Leave can Lead to a Lawsuit – Coronavirus Update

May 14, 2020 by

unpaid leaveUnpaid leave due to the COVID-19 pandemic is being forced on more Americans than at any other time in our country’s history. As of April 1 of this year, Public Law 116-127, otherwise known as the Families First Coronavirus Response Act, gives workers the right to sue their employers in the event proper leave is not provided. Businesses employing between 50-500 workers must comply with the new law.

Consider These Unpaid Leave Circumstances

Many individuals across California and the United States are not showing up for work for reasons beyond their control:

  • There is a state or local quarantine;
  • They have received notification that they should self-quarantine due to a possible exposure or symptoms of the disease;
  • They have experienced disease symptoms and are seeking medical testing or treatment.

Under these circumstances, workers are entitled to the greater of these three wages:

  • Your regular pay;
  • The federal minimum wage;
  • The state minimum wage.

You can top out at as much as $511 per day during the course of your sick leave.

Furthermore, you may be entitled to two thirds of your normal pay — up to $200 daily — if you are unable to work for the following reasons:

  • You are caring for an individual who must be isolated or quarantined;
  • You are caring for a child who is unable to attend schools due to local closures;
  • You are in another situation similar to these that prevents you from going to work.

How it Works

Sick leave and expanded family and medical leave is calculated as follows:

Part time workers are entitled to the average earnings in a two-week time frame. The average going back six months may be used if an employee’s schedule varies significantly from week to week. These workers are entitled to paid sick leave for two weeks, and may extend the payment period for as many as 10 more weeks under the expanded family and medical leave provisions. In the event employees generally put in overtime hours, those too must be compensated under the Emergency Family and Medical Leave Expansion Act. Under the Emergency Paid Sick Leave Act, however, only hours up to 80 in a two-week period are to be paid. [Read more…]

Filed Under: Blog, COVID-19 Tagged With: , , , ,

Coronavirus Lockdown Orders Impacts Businesses: Banks Offer Relief

April 30, 2020 by

coronavirus lockdown ordersCoronavirus lockdown orders have permeated the country creating dire consequences for employers and employees. Coronavirus has led to social distancing measures to protect communities, but the collateral damage on businesses, particularly small businesses, is proving to be devastating. Enter the banking industry. 

Coronavirus Lockdown Orders – Essential vs. Nonessential Businesses

California’s Governor Newsom issued executive coronavirus lockdown orders in March requiring residents to stay home unless they were needed to maintain “essential infrastructure.” That means a number of businesses have been shuttered, and employees left wondering how they will pay their bills. The businesses considered essential, to date, include grocery stores, pharmacies, banks, laundromats, law enforcement, fire and EMT, gas stations, and, of course, medical services. Some manufacturers and distributors, particularly those involved with the medical field, are also remaining in business. Likewise, employees who assist vulnerable populations in areas such as food and shelter operations may continue to work, as well as those dealing with child abuse and elderly care. Public works and communications employees are still going to work, and electricians, plumbers, and sanitation workers continue to support the community. Additionally, veterinary services are still available to the public. Finally, those working in mortuary, funeral, and cemetery services are deemed essential.  That leaves entertainment venues, salons, fitness centers and more with no way to make money. Those in transportation, and hospitality industries have limited employment. Indoor dining is prohibited, so restaurants can earn a marginal income through take-out and delivery orders.

State Options for Your Business 

The governor has worked with both national banks and state-chartered ones, along with credit unions, to create a grace period on loan payments in the wake of the COVID-19 outbreak prompted coronavirus lockdown orders. Additional programs centered around payment deferrals, fee waivers, interest rate adjustments, and various loan modifications are available to assist business owners who have been negatively impacted by the pandemic.

Federal Assistance

The federal government has enacted legislation to address financial assistance for small businesses that have been hit by the virus. Organizations with 500 or less on the payroll may obtain loans from the Small Business Administration to help with business expenditures. This may include the following:

  • Payroll and compensation;
  • Healthcare costs;
  • Mortgage and other interest obligations;
  • Rent and utilities.

These loans are provided with no collateral or personal guarantees, and costs associated with employee payroll will be forgiven up to $100,000. The remainder of the loan will carry no more than 4% interest. [Read more…]

Filed Under: California Employment Law, COVID-19 Tagged With: , ,

McDonald’s Lawsuit Ends With $26 Million Settlement

April 9, 2020 by

mcdonald's lawsuitAfter years of legal wrangling, a McDonald’s lawsuit was settled in November of 2019. This McDonald’s Class action lawsuit was first filed back in 2013. In this McDonald’s class-action lawsuit, workers claimed that the employer had wrongfully underpaid cashiers and cooks in California. It is yet another prime example of a big corporation that was brought to heel by the courts after engaging in unfair business practices. If you feel your employer may be bending the law at your expense, seeking the help of a local labor attorney may be a good move.

The McDonald’s Lawsuit

McDonald’s employees had several specific claims against the fast food giant:

  • Workers’ shifts were structured so as to deny overtime pay to employees.  The company claimed that if a shift was split up within a 24-hour period, the worker was ineligible for overtime.  So if an employee worked from 9 pm. to 3 a.m. on one shift, and worked from 3 p.m. to 9 p.m. in a successive shift, McDonalds refused to pay overtime despite 12 hours of work in a 24-hour period.
  • Breaks were allowed only at the beginnings and ends of shifts, not in the middle when business picked up and when workers could use the rest;
  • Employee uniforms were required to be cleaned and ironed, but employees were not given compensation for their care, particularly when clothing was damaged due to grease and smoke in the workplace.

Seven years of this McDonald’s lawsuit negotiations finally resulted in a truce of sorts.  A settlement, which must still be approved by a judge, serves to both address past employee complaints and ensure compliance to the law in the future.  The agreement has a number of requirements for the corporation:

  • McDonalds’ must pay overtime, and have an electronic tracking system for breaks and wages;
  • Rest breaks must be provided during workers’ shifts, not just at the beginning or end; the company agreed to fork over a one-hour wage premium in the event a meal or rest break is interrupted and employees are asked to work.
  • The employer must replace uniforms following normal wear and tear or damage from the work site.

Although McDonald’s admitted no wrongdoing, nearly 40,000 California employees are reaping the benefits of the $26 million settlement, along with coming changes to daily practice.

The company issued a statement that claims they believed employment practices always complied with labor laws in the state.  Nonetheless, it is working to improve training programs for restaurants owned by the company in an effort to encourage strict compliance with legal requirements. [Read more…]

Filed Under: Blog, California Labor Law Tagged With: , , , ,
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