Labor Dispute – McDonald’s Brand Scrutinized

August 13, 2018 by

labor disputeLabor dispute; joint employer or franchise? After years of complaints and protests against low wages and other labor issues, the National Labor Relations Board (NLRB) eventually issued grievances against McDonald’s in 2015. Wage and labor complaints from multiple franchises in California cities and others across the country were consolidated. Beneath all the labor issues lies the question, is McDonald’s USA a joint employer of franchise employees, and therefore responsible for the treatment of employees at individual franchises?

Labor Dispute Issue

The central problem in the lawsuit surrounds franchise operators’ response to employee demonstrations. McDonald’s workers claim they were fired after participating in protests organized by a labor advocacy group called Fight for $15. According to the group, workers across the country lost their jobs simply for participating in these protests.

The Lawsuit

So who is responsible for the actions of individual franchises? Does the mother corporation hold any liability when their franchises are found guilty of labor or safety violations? What implications would a decision one way or the other have on the way business is conducted across the nation?

McDonald’s argued that it simply rents out its brand to individual franchises, and every franchise is an independent business. Policies are particular to each business, and are out of the corporation’s hands.

Conversely, the NLRB hoped to expand the joint employer doctrine, extending liability to corporations to whom they franchise their brands.

Many observers felt that a ruling against McDonald’s—naming it as a joint owner–would increase franchisors’ vulnerability to legal action, toppling the franchise model altogether. Anxious to avoid having to agree that it is a joint employer, McDonald’s agreed to a settlement in which they admitted no wrongdoing, but resolved claims with an undisclosed payout to employees.

Fight for $15 was not quite as eager to settle the case, arguing that McDonald’s needed to publicly take responsibility for surveilling, harassing and firing employees who were simply standing up for themselves against paltry wages by engaging in legally protected activity.

So how did the judge respond to the proposed labor dispute settlement?

Not so Fast…

Administrative Law Judge Lauren Esposito found that unfair practices by the McDonald’s chain were not adequately addressed, and the proposal was summarily rejected.

McDonald’s USA responded with disappointment, noting that expensive, time-consuming labor dispute litigation would extend for months or years to come. The possibility of an appeal of the court’s decision is being evaluated.

Fight for $15 was delighted with the labor dispute ruling, hoping to hold McDonald’s feet to the fire and force the corporation to take responsibility for the wages and working conditions employees suffered.  Everything is on hold while both sides decide how to proceed. [Read more…]

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

How Far do Whistleblower Protections Go?

August 7, 2018 by

whistleblower protectionsWhistleblower Protections? When Michael Johnson learned that the company he worked for had amended its 2016 tax return to reduce its tax burden, he filed a whistleblower complaint against his employer. Blue Shield, he claimed, had listed over $3 billion less in premiums than the original filing report. Blue Shield responded with a lawsuit against Johnson for breach of contract, alleging he had shared confidential information about the company. Just how much credence is there to Blue Shield’s argument? Do whistleblower laws give employees the ability to disclose company secrets? For answers to these, and other business questions, contact a local business law attorney.

California Whistleblower Protections

In California, employees are encouraged to report suspected violations of state and/or federal law to appropriate agencies, which are then authorized to investigate claims of wrongdoing. In fact, as per California Labor Code Section 1102.5, individuals who report suspicions of wrongdoing by their companies are considered a protected class. Retaliation against such individuals is prohibited.

What, Exactly, Constitutes Whistleblowing?

Whistleblowing is the reporting of illegal or safety violations that may be occurring in the workplace. Employees may refuse to engage in activities deemed to be illegal or unsafe, and may ultimately report problems to applicable agencies for investigation.

Whistleblower Protections

Businesses may not legally create policies that prevent employees from reporting unsafe or illegal situations in the workplace. Additionally, the law provides that employers may not:

  • Retaliate against individuals who choose not to engage in workplace activities they believe to be against state or federal laws or OSHA regulations;
  • Retaliate against employees who report infractions.

Retaliation may take many forms, all of which are violations of California Labor Code.  Common examples include:

  • Demoting or firing the employee;
  • Denying training opportunities, promotions, or access to higher-level meetings;
  • Forcing the employee to quit by making work life untenable.

Section 1102.5 of the California Labor Code requires employers to make restitution for any of these actions and to reinstate the employee to a job from which they have been fired when these actions occur.

Whistleblower Protections from a Lawsuit?

One wonders whether or not whistleblower laws shield Johnson, who is being sued by Blue Shield. The truth is, the courts have reached different conclusions in cases across the United States in recent years. Generally speaking, they will want to take a look at a number of factors, ranging from how the materials were obtained and to whom they were given, to the employee’s need to preserve the items in order to “blow the whistle.” While a comprehensive policy regarding secret materials will help any company with its most confidential documents, it is unclear how such a policy will stand against whistleblower protections. [Read more…]

Filed Under: Blog, Whistleblower Retaliation Tagged With: , ,

Thank You California Firefighters for Putting It All on the Line

August 3, 2018 by

thank you california firefightersThank you California firefighters. By July 9, 2018, nearly 200,000 acres had been scorched in California wildfires. That is more than double the amount burned in each of the previous five years. Sadly, some parts of California have been so dry this year that they were never removed from drought status from last year. As of July 30, more than 10,000 people have been mandatorily evacuated from Mendocino and Lake Counties. The Ranch Fire along Highway 20 and the River Fire north of Hopland put residents across more than 35 miles at risk. With six out of the previous seven years experiencing severe drought across the state, hot, windy conditions make fighting these fires incredibly difficult and dangerous. It has been undeniably devastating for people who live and work in the area; but what has it been like for firefighters?

Hazards for California Firefighters

The men and women who fight these enormous fires are heroes in everybody’s eyes. The perils they confront as they protect Californians are many:

  • Thick smoke;
  • Winds that lead fires to change directions without warning;
  • Narrow roads that make traveling difficult;
  • Falling branches and exploding trees;
  • Fallen trees blocking roads;
  • Fatigue from working long hours;
  • Fallen power lines posing dangers to firefighters;
  • Dehydration;
  • Heat Stress as a result of vigorous manual labor, heavy gear, poor acclimatization to severe heat, and personal risk factors.

Work Schedules for California Firefighters

When situations are urgent, firefighters are often required to work long hours. In the case of these devastating wildfires, many of these heroes are unable to spend any time with their families and friends for days and weeks at a time. They grab sleep when at the brink of exhaustion, only to go back out to continue the demanding work again until communities are safe. While the fire season was once limited to the summer months, these days, California has deadly wildfires year-round. In the past six years, at least one wildfire has been burning during every single month of the year. While firefighters used to have the cooler months to refresh and regroup, the extended heat and drought have vaporized those opportunities.  

Injuries and Death a Constant Concern for California Firefighters

Firefighters put their lives at risk every time they confront a blaze. Consider these daunting statistics from 2016:

  • Over 60,000 serious injuries were incurred by individuals fighting fires;
  • Over half of the injuries involved respiratory problems;
  • There were 69 firefighters who lost their lives in the line of duty;

As of July 30, 2018, 59 firefighters have died on the job. A study of firefighter deaths indicates that firefighter fatalities for those involved in wildfires has increased by 26% in recent years. The primary causes of death between 2007-2016 include:

  • Vehicle accidents;
  • Aircraft accidents;
  • Heart attacks;
  • Entrapments;
  • Falling rocks and trees.

[Read more…]

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

Unsafe Working Conditions? Fight for Your Rights

July 27, 2018 by

unsafe working conditionsHave you been injured in a workplace accident due to unsafe working conditions? If so, you may wish to seek civil penalties from your employer. In California, employers who have accrued workplace safety violations from the California Occupational Safety and Health Administration may be held liable for damages in a civil court. An experienced labor & employment attorney can advise you further.

Workers Injured Due to Unsafe Working Conditions

Unfortunately, employees are exposed all too often in the workplace to unsafe working conditions.  Over the years, a number of serious incidents have been the result of lax workplace policies and shoddy enforcement of safety procedures:

  • When an employee was installing a solar panel for Elite Electric, he slipped and crashed through a skylight, landing 29 feet below. He was not strapped into any type of protective harness, and no protective measures of any kind were available in the area.  
  • Custodial employees at the Kaiser Foundations Hospital were expected to dispose of collection boxes that were filled with uncapped needles, even though the boxes often were filled to overflowing and the lids would not properly close. Employers must protect all workers from blood-borne disease, and were clearly negligent here.
  • Ashley Furniture faced several safety violations that imperiled employees, including failing to appropriately separate oxygen cylinders from fuel gas cylinders, failing to repair or replace damaged cords on industrial trucks, and failing to provide appropriate guards on a vertical band saw.
  • One employee was injured and another killed in an electrocution incident at Five Star Plastering Inc. when the metal scaffolding came into contact with a live power line. The workers had received no safety training prior to the accident.
  • Two Disney workers experienced a fatal, 80-foot fall from a platform that had been hoisted from a crane. The crane involved had not been inspected, and the operator had not performed necessary test runs or had rigging materials inspected prior to the accident.
  • Three employees were sprayed with molten metal after Tesla Motors failed to repair a damaged safety lock. None of the employees had been trained in potential hazards of working with the machine, and none were wearing protective headgear.
  • An employee for Three Frogs Inc. was killed after using incorrect procedures while cutting down a Eucalyptus tree. Appropriate training and rigging were not provided to the employees.
  • Two individuals contracted Valley Fever because employees were not protected from airborne dust at First Solar Electric.

[Read more…]

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

Wrongfully Terminated in California

July 19, 2018 by

wrongfully terminatedWhen the Director of Facilities for a Napa Valley resort executed the duties required by his job, he claims he was wrongfully terminated. Instead of rolling over and accepting his fate, Daniel Philbin took the case to court. The property owner, Carneros, sees things quite differently from the story Philbin tells.  As with most employment disputes, only with the help of an experienced local attorney will the plaintiff be able to successfully present a case.

Wrongful Termination and Job Expectations

Being in charge of the resort facilities encompassed many responsibilities, among them three key duties;

  • Ensuring the facility met ADA compliance regulations for disabled guests;
  • Reporting resort water usage;
  • Procuring necessary permits.

According to Philbin, his attempts to execute these obligations met with dissatisfaction from his employers, and resulted in his untimely termination. Specifically, he contends that when new owners took over the property and began renovations, they declined to install the ADA required ramps and lifts in the patio and spa areas. Additionally, Philbin asserts that when management sought to drill a new well on the property, they neglected to apply for the permits to enable water and electrical connections, despite Philbin repeatedly urging them to do so.

Instead of the new owners appreciating Philbin’s knowledge and expertise as a property manager, they ignored his overtures to follow legal procedures, and started holding meetings without him. Ultimately, he found himself without a job.

Wrongfully Terminated – The Other Side of the Story

Not true, claims the resort. As far as the ADA concerns, those were addressed immediately upon discovering there were issues. Yes, water issues were problematic, but the resort was fully cooperating with the County on that matter.  

In fact, the new owners were so intent on handling the water issues properly that they ultimately hired an outside contractor to handle it exclusively. Philbin was presented with an offer to deal with other property issues for a monthly salary. Instead, according to Carneros, Philbin lost his cool in a tense meeting and resigned. The company accepted the resignation immediately.  

Wrongfully Terminated? The Court Must Decide

Philbin says he received a letter from Carneros accepting his resignation, even though he never resigned. He is now seeking damages, attorney’s fees, and associated court costs. California’s Labor Code section 1102.5 provides strong protections for employees who are fired because they fail to join in unlawful activity. Was Philbin cut out because he insisted on proper procedures?  Did Carneros exact retribution? Was Philbin wrongfully terminated? The court will now have to decide. [Read more…]

Filed Under: Blog, wrongful termination Tagged With: ,

Can Social Media Posts Impact Your Job Status?

July 11, 2018 by

social media postsCan my social media posts affect my job status? Many people experience some level of dissatisfaction with their jobs, co-workers, or supervisors. If you are one of those people, you are not alone. One study reports that more than half of Americans are dissatisfied with their work environment. That number has risen over recent years.

What is Making Workers Unhappy?

Workers report growing dissatisfaction in a number of specific areas, such as:

  • Wages;
  • Policies relating to promotions;
  • Benefits such as health insurance, sick leave, and vacation time;
  • Retirement plans;
  • Basic job security.

What Brings Happiness to the Job?

Employees report that two factors impact their happiness on the job more than any others –  interest in the job itself and having positive relationships with co-workers and supervisors.

Notably, job satisfaction has actually increased in one area – physical environment. Researchers surmise this may be related to the increase in telecommuting in many industries.

Social Media Posts and How to NOT to Handle Job Angst

Social media posts about your job frustrations can be quite dangerous to your job security. A case in point involves Jane Brill, who was fired after making disparaging remarks about her colleagues on Facebook. While Brill, and plenty of other people, may believe they have every right to say what they want on their own Facebook accounts, (what is the first amendment all about, anyway?) she was mistaken. The fact is, because Brill worked for a private company, she must adhere to their privacy rules.

What About Social Media Posts Unrelated to Work?

Inappropriate social media posts unrelated to the workplace can be just as dangerous to employees as complaints about the company. Even if it occurs on personal time, on a personal device, and espousing personal views, posting offensive content online can result in an employee’s termination.

Review  Your Social Media Posts Before You Get the Job

Believe it or not, seven in 10 employers screen social media pages of job applicants prior to making a job offer. So, if you are highly qualified for a position in a competitive job market,  your social media posts may tip the scales for or against you as company weighs your application against those of your competitors.

What to Avoid

Although it should go without saying, there are some types of posts that serious individuals really need to avoid:

  • Anything showing partying or drunken behavior;
  • Political or religious social media posts that may offend others;
  • Complaints about current or previous employers;
  • Profanity;
  • Evidence of prejudice;
  • Poor grammar.

Social Media Training

Employers can make sure their expectations are clear by providing regular training sessions for employees regarding social media. Additionally, clearly articulating policies in employee manuals can ensure everyone knows exactly what is accepted and what is considered an offense worthy of termination. [Read more…]

Filed Under: Blog, Social Media Tagged With:

Small Business Owner Financial Improprieties

July 3, 2018 by

small businessRunning a small business is a big responsibility. If you are the sole proprietor of a small business, you want to do everything in your power to avoid even the appearance of financial impropriety.  Experts, including local employment attorneys, generally agree on key principals toward that end.

Do Not Commingle  Your Small Business and Personal Accounts

There are plenty of sound reasons to keep your small business and personal finances separate:

  • It could otherwise lead to some unpleasant interactions with the Internal Revenue Service;
  • It is a way to acknowledge on a psychological level that separate accounts are to be used for specific—personal or business—expenses, and the two types of expenditures are not the same;
  • Transactions will be easily organized and accounted for; there will be no need to scratch your head and wonder if a particular expenditure was for business or pleasure;
  • It is easier on your accounting bill because it is more straightforward;
  • Your personal financial information will remain private;

If You Want to Get Cash Out of Your Small Business

There are plenty of smart, legal ways to get cash out of the company if that is what you want to do. Avoid having the company write out a check to pay for your personal lawn service, or creating questionable invoices to pay for personal expenses. Instead, use strategies to get money out of the company that indicate that you are coloring within the lines. These methods provide evidence of the legitimacy of your financial decisions, help the company budget flow because payments to you are anticipated, and leave a clear paper trail delineating financial transactions. Consider any of the following:

  • Paying yourself a salary;
  • Paying yourself a distribution or dividend (if you are an S-Corp) with a company check;
  • Opting for regular owner draws, as opposed to indiscriminate withdrawals if you own the company solely;
  • If you are in a real crunch for cash, taking out a shareholder loan that has traditional terms related to interest, due date, and non-payment penalties.

If You Get Caught With Sticky fingers

In the aftermath of messy financials that point to the misuse of business funds, you could be facing a number of ugly consequences:

  • A sullied reputation;
  • Consequences associated with accounting documentation that does not square up;
  • An IRS audit, for which you will have to supply invoices, receipts, and other documentation supporting your contentions;
  • Additional income tax burdens;
  • Penalties and interest on the newly configured tax liability;
  • Changes in your personal tax liability;
  • Being targeted for future IRS attention.

[Read more…]

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

Public Sector Organized Labor Hobbled by SCOTUS Ruling

June 29, 2018 by

organized laborIn a blow to public sector organized labor, the Supreme Court granted a long-time wish of conservatives, rewriting a decision allowing public enterprises to charge union dues to non-union members in order to exact some contribution for collective bargaining. With the recent decision, if California workers choose not to join the union, they cannot be required to contribute to union operations.

Organized Labor – No More Share Fair Fees

Referred to as share fair fees in California, the court ruled the First Amendment rights of non-union employees are violated when compelled to support unions with which they may disagree philosophically or politically. Justice Samuel Alito wrote the majority opinion for the court’s five to four decision.

Impact on Public Sector Organized Labor Unions

Over five million workers across the country will be impacted by the court’s decision, including many right here in California. Additionally, the power of unions is expected to decline with the corresponding decline in dollars. Disgruntled union members who resent paying dues to increase the wages and job safety for non-union members are expected to drop their memberships in large numbers, reaching as high as 700,000. Why pay dues if every employee receives the same benefits, regardless of membership? The American Enterprise Institute projects membership losses of anywhere from 20-50% in coming years.

Impact on Public Sector Organized Labor Union Workers

The effects of weakened unions over recent years have already had an economic impact on all workers, union and non-union alike. Wages have been steadily dropping in line with union membership in the past decade, and are projected to be 5% lower than expected due to the decreased clout of unions. That is just about $3,000 per year for the typical non-union employee.  It is argued that the shrinking sway of unions is one of the key reasons that workers’ wages stagnate. This ruling, then, with the associated decline in union membership, is anticipated to impact roughly five million jobs in the public sector, from educators to pipe fitters.

In the past, non-union employers tended to raise wages to compete with contemporary earnings that union employers paid out, meaning entire communities enjoyed the economic boost negotiated by unions. Additionally, when the rank and file received negotiated raises, their non-union managers also generally got a pay hike. So, it seems, all workers won.

Beyond salary considerations, unions also negotiated to establish policies that promoted fair treatment and safety in the workplace. Oftentimes, those policies carried over into rival businesses, since competitors could be at a disadvantage otherwise. [Read more…]

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

Workplace Sexual Harassment Retaliation

June 25, 2018 by

workplace sexual harassmentWorkplace sexual harassment. When the vice-principal of one California middle school objected to her principal’s nickname for her (Double D), as well as his comments about the physique and desirability of colleagues, it did not go well for her. If you can relate to institutional sexism in your place of work, you may benefit from the advice of a local employment attorney.

A History of Workplace Sexual Harassment Problems

Principal Pinto had a reputation as a misogynist who overtly disrespected female teachers and staff on a regular basis. The evidence of this lies in the 15 workplace sexual harassment grievances filed against him within one school year. Included in the complaints were these abhorrent incidents:

  • He casually talked about female employees’ breasts;
  • He stated that when one employee was making fish, the odor must have been coming from his vice-principal’s genitals.

Nonetheless, after the complaints were documented with the district, no protections were offered to the complainants. Instead, they faced additional hostility. When Pinto’s vice-principal either excused herself from meetings or broke into tears in reaction to his insults, Pinto’s response was to tell her that she had a choice – either “deal with it or resign.” She chose to deal with it.

The Workplace Sexual Harassment Lawsuit

Ultimately, a lawsuit was filed citing the following complaints:

  • Sexual harassment;
  • Hostile work environment;
  • Retaliation.

Specifically, the suit alleges that Pinto held sexist opinions and that he believed women should acquiesce to the will of men. Only teachers and staff who were willing to embrace this subservient stance were able to avoid the wrath of Pinto. Others, who were particularly successful or assertive were targeted relentlessly. When Pinto became aware of the complaints against him by his vice-principal, he responded by assigning her less desirable duties and relieving her of responsibilities to lead professional development classes and to evaluate teachers. Another teacher who had experienced problems with the principal and complained also suffered retaliation. After preparing throughout the summer for a California Cadet Corps course, she found the class cancelled by Pinto on orientation day. Eventually, both women were forced to quit altogether.

Now, the district may be liable for punitive damages, compensatory damages, lost wages, lost benefits, emotional distress, and medical expenses associated with the experience.

Defining Workplace Sexual Harassment

Sexual harassment in the workplace is illegal. It may take the form of inappropriate verbal comments and jokes, leering or sexually suggestive gestures, pictures and cartoons, unwelcome physical contact, or the swapping of employment opportunities for sexual favors. When any of these behaviors are shunned or reported and the harasser becomes threatening or retaliates in any way, it is against the law. [Read more…]

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

California’s Fair Employment and Housing Act

June 18, 2018 by

california fair housing and employment actCalifornia’s Fair Employment and Housing Act (FEHA) lays out the duty of employers toward their employees, as well as prohibited actions in the workplace. These policies address discrimination against individuals with disabilities, as well as other protected groups, including:

  • Age;
  • Military status;
  • Race;
  • Religion;
  • National origin or ancestry;
  • Marital status;
  • Physical or mental disability;
  • Gender, sexual expression, or sexual orientation.

Anti-discrimination rules have been on the books for years. Revisions to these policies in recent times are worth noting:

Sex Discrimination and the California Fair Employment and Housing Act

The law protects individuals from any form of discrimination on the basis of sex. This applies to both males and females and expressly covers gender identity and expression and transgender identification.

Fair Employment and Housing Act on Volunteers, Interns, and Other Unpaid Individuals

California’s Fair Employment and Housing Act protects unpaid persons from discrimination, just as paid workers are. In fact, for the purposes of a harassment claim, they are considered employees.

Discrimination on the Basis of Religion

Religion may not be a factor in hiring and firing decisions. Reasonable accommodations must be made to address a worker’s religious tenets. An employer may not isolate a worker from fellow employees or from customers due to religious beliefs or attire, unless it is something that is requested by the employee.

Pregnancy

Employees are entitled to as much as four months of unpaid leave in association with a pregnancy. It is not necessary to for the time to be taken in one continuous break. Furthermore, discrimination on the basis of pregnancy, breastfeeding, or other conditions associated with childbirth is not permitted.

Discrimination on the Basis of National Origin

The California Fair Employment and Housing Act does not permit employers to require employees to demonstrate that they have a driver’s license except under particular circumstances:

  • State or federal law requires it for the position;
  • It is a mandatory item for the type of work required;
  • There is a legitimate business reason for the requirement, and all employees are held to the same standard.

Training for Anti-Bullying

Employers who employ 50 or more workers are required to provide training that encompasses key topics:

  • Definitions of “abusive conduct;”
  • Impacts of such conduct on both victims and employers;
  • Steps the company will take to rectify harassing behaviors, such as the policy for investigating complaints and responsive actions;
  • Obligations of supervisors to document claims of discrimination, harassment, and/or retaliation.

Employers must document attendance at these trainings with sign-in sheets and must keep training materials on hand.

Support Animals in the Workplace

Support dogs or other animals that are required to assist with vision issues, cognitive problems, or emotional support must be accommodated in the workplace. [Read more…]

Filed Under: Blog, Employment Discrimination Tagged With: ,
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