Religious Discrimination: EEOC V. Abercrombie & Fitch

August 24, 2015 - When Samantha Elauf went in for her job interview with Abercrombie & Fitch, she wore the headscarf traditional for a practicing Muslim. During the interview, her headscarf was not mentioned or discussed, but the store did take note of its presence and decided not to offer Elauf a job at the store after considering that she had most likely worn the headscarf for religious reasons and that it would be in violation of the store’s “Look Policy.”

The “Look Policy” at Abercrombie & Fitch violates the wearing of “caps” stating that this look is too informal for the image the company desires to project. In response, the EEOC sued Abercrombie & Fitch on Elauf’s behalf.

The EEOC received a summary judgment from the district court based on its claim that the store was in violation of Title VII when they refused to hire Elauf.

This decision was reversed in appellate court on the ground that employers cannot be held liable under Title VII for failing to accommodate a religious practice unless the applicant/employee first provides the employer with knowledge of their need for a religious accommodation or exception to policy/procedure, etc.

The United States Supreme Court then reversed the decision of the court of appeals. The Supreme Court held that for an applicant to prevail in this type of disparate treatment claim they need only show that their need for an accommodation was a motivating factor in the employer’s decision. They did not need to show that the employer had actual knowledge of the need for an accommodation.

According to this line of reasoning, the hiring officers’ assumption and discussion of Elauf’s perceived need for an accommodation could be seen as a motivating factor even though the issue was not pointed out or discussed with her in person during the job interview.

If you have questions or need additional information about religious discrimination in the workplace or during the job hiring process, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Inability To Work With Your Supervisor Doesn’t Mean Disability

August 21, 2015 - Is being completely unable to work with your supervisor going to be accepted as a “disability” as defined by employment law? One clinical assistant dared ask this question in California court in Higgins-Williams v. Sutter Med. Found. putting it to the test in court.

Michaelin Higgins-Wiggins worked in Sutter’s Shared Services Department. During the course of her employment, she went to her doctor because her job (her supervisor and the human resources department specifically) were causing her to experience stress. After discussing the issue with her doctor, she received a diagnosis regarding the situation: adjustment order with anxiety. She took the issue and her resulting diagnosis to her employer and was granted a leave of absence. The leave of absence lasted approximately 30 days.

After returning to work, Higgins-Williams received a poor performance review from her supervisor followed by a number of negative/contentious interactions with the same supervisor. Higgins-Williams responded by filing a disability accommodation request, citing her previously mentioned diagnosis and the situation on the job with her supervisor and the human resources department resulting in stress/anxiety. She was granted additional leaves of absence. After time off for leaves of absence totaling longer than a year, her employment with Sutter was eventually terminated. 

Higgins-Williams felt she was discriminated against due to her disability and that she was wrongfully terminated. She filed a lawsuit including these allegations. However, the trial court and Court of Appeal both agreed that Higgins-Williams was not disabled as defined by employment law. They found that an inability to work under a specific supervisor who is causing anxiety and/or stress as a result of standard oversight of the employee’s job performance, did not constitute an actual mental disability according to the terms provided by FEHA.

If you have questions about what constitutes disability discrimination on the job, contact thesouthern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Paid Sick Leave Law Resulting In Courthouse Custodian Hour Cut

August 19, 2015 - The California paid sick leave law went into effect across the state on July 1st. 6.5 million of the lowest paid workers in the state were provided with the right to call in sick and still receive payment for wages they would have earned had they not been sick and instead been able to work. One month after the new requirement went into effect, at least one group of workers benefitting from the change has found that there is also a price to pay: their hours are being cut. NOVA Commercial provides custodial services to a number of different government buildings. One such government building is the San Diego County Courthouse. NOVA Commercial recently informed their employees that they would be experiencing a cut in their hours. Employees speaking out anonymously state that the cuts are being made in direct response to the new law requiring that employers provide workers with three paid sick days each year.

In a meeting workers were advised that they would receive three sick days. They were also told that the company would be cutting their hours. Numerous employees of the company have verified this information. 

Workers at NOVA Commercial earn $9 per hour with no additional benefits. Some employees have seen their hours cut from five days per week to four resulting in a total annual loss of 52 days per year (and three paid sick days). This amounts to a decrease in overall annual pay of $3,528 each year for these employees. Many employees are worried as this will make it difficult for them to pay rent, bills and even pay for uniforms as their kids are now returning to school for the fall. Some are even worried that it will mean they can’t put food on the table for their families. The County’s contract with NOVA does not prohibit the company from cutting hours and every NOVA employee signed an employment document that states that the company reserves the right to change hours, wages or working conditions without notice.

When asked about the document, it was stated that most of the workers are Latinos and many can’t read or understand English very well, making it difficult for them to know exactly what they are signing during the employment process. Claims are being made that the company took advantage of this during their job hiring – not explaining what the documents meant could actually happen in the future.

For questions about employment law and how it affects you in your workplace, contact the southern California employment experts at Blumenthal, Nordrehaug & Bhowmik.

Wrongful Termination: Hacienda La Punete Unified Whistleblower Awarded $555K

July 22, 2015 - Betty Ruelas, a former employee of Hacienda La Puente Unified School District, raised concerns about some unusual invoices that were paid to a company running the school district’s after school program. Afterwards, she was forced into early retirement because of her questions regarding the unusual invoices along with a disability and a need to take family medical leave from her work. The questionable invoices were from West Covina-based Institute for Student Success. They were one of two vendors that constituted the operational end of the grant-funded after school programs for Hacienda La Puente Unified School District.

The questionable invoices came from a vendor who was a friend of Superintendent Cynthia Parulan-Colfer. Upon returning from a family medical leave, Ruelas immediately took note of the new vendor and the high numbers attached to their invoices. In Ruelas’ opinion, it was obvious that the vendor was receiving abnormally high compensation for work provided. Parulan-Colfer’s response to accusations about the unfair compensation was that the claims they were highly paid and the fact that she was a friend were unrelated. She claims that Ruelas’ claims were simply false and meant as an attack against the school district.

The claims regarding the invoices were not even addressed by the jury in the case. They stuck to the other two reasons for the alleged wrongful termination.

The vendor began operating the district’s after school program in 2010 and continued through the 2014-15 school year. After a number of questions regarding the invoices, Ruelas claims her superiors on the job harassed her until being placed on disability leave for stress/mental health (April 2012). Once she returned from disability leave, she was transferred to another department. The new department only increased the stress level on the job. When Ruelas requested a transfer back to her old department, the request was denied.

Ruelas again went on disability leave in May 2013. She had developed hives on her eyelids as a result of the severe anxiety that she was suffering at work. She was then forced to retire early at age 53 in July 2013.

On May 13^th, the jury ruled in Ruelas’ favor awarding her $555,000 in damages.

If you need assistance with wrongful termination claims or other southern California employment law issues, get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik.

Fontana Unified Police Dispatcher Awarded in Wrongful Termination Case

July 21, 2015 - Jolee Berdnik, a police dispatcher, formerly with the Fontana Unified School District, alleges that she was fired from her position as a result of reporting an officer who was accused of sexual assault and rape of fellow dispatchers. After a month long trial, the jury verdict came back in her favor, awarding the wrongfully terminated police dispatcher over $315,000.

Berdnik’s 2012 wrongful termination lawsuit claimed that she was let go in retaliation for reporting officer John Garcia’s alleged conduct. Her superiors responded to her report of Officer Garcia’s behavior by terminating her from her position.

Three other current and former employees of Fontana Unified’s police division have made claims that Officer Garcia sexually assaulted or raped them on the school grounds. All three attacks allegedly took place in 2010 and 2011. All three have obtained representation to pursue legal recourse. 

After an investigation into the allegations originally reported by Berdnik, Officer Garcia was fired from his job, but he was not brought up to face official criminal charges.

If you are unclear what it means to be wrongfully terminated from your position review the standard definition of the phrase below:

Wrongful termination – a broad term/phrase that has a very specific legal meaning. Many individuals are terminated from their positions. And many will feel that the loss of their employment is “wrongful.” But the legal definition of “wrongful termination” is limited to only those very specific circumstances in which an employee is fired from their job for an illegal reason.

Common reasons that constitute “wrongful termination” include: your sex, your age, your race, your religion, complaints of sexual harassment, or reporting company wrongdoing to authorities (whistleblowing).

If you need additional assistance in determining whether or not you have been the victim of wrongful termination, please get in touch with the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

New Obstacles for California Employers after “Black Swan” Internship Case

July 20, 2015 - California internships in the past have been viewed as a trade-off between well know, desirable employers and young students interested in the industry. The employers get workers and the interested students get experience in their chosen field. Many college students and recent graduates vie for a limited number of highly coveted internship positions in Hollywood and Silicon Valley. Companies offer unpaid positions (internships) and students and new grads vie for the chance to start building a relevant network. The simultaneously beneficial nature of the internship means there has been a limited amount of litigation related to the arrangements. But as of 2013, there’s a ruling that is affecting the symbiotic relationship between employers and interns.

In 2013, a federal District Court in New York found that interns of the movie Black Swan were entitled to pursue a class action. The class action seeks millions of dollars for unpaid wages, overtime, etc. Studios and tech business employers are taking note.

With Glatt v. Fox Searchlight Pictures, Inc., the U.S. Court of Appeals for the Second Circuit attempted to answer the basic question, what is an intern? There are interns across the county, but there is a surprisingly limited amount of actual law related to this particular workplace relationship. The Second Circuit’s decision actually turned on a case from almost 70 years ago regarding railroad apprentices. California employers are discovering that the direction this particular discussion is taking holds both good news and bad news for the future of their workplaces.

The Good News: According to the Second Circuit’s decision, wage-hour cases in relation to interns are rarely subject to resolution in a class action or collection action due to the highly individualized nature of the setup.

The Bad News: Fox, the studio that produced the movie, convinced the court to impose a test to determine who the primary beneficiary of the intern/employer relationship is. This test was to be used to determine whether the worker was an intern or an employee. The court put together 7 non-exhaustive questions for a trial court to consider when attempting determining if a worker is an intern or an employee.

1. Is there a clear understanding that there is no expectation of compensation for work performed?
2. Does the internship offer any hands on training or clinical experience as would be provided by a school?
3. Is the internship a part of the coursework of the “intern”/will they receive academic credit?
4. Does the internship coincide with the academic calendar?
5. Is the internship limited to the time period during which the setup would provide beneficial learning opportunities?
6. Does the intern’s work compliment or replace the work of paid employees?
7. Is there a clear understanding that the intern is not entitled to a paid job once the internship is completed?

The primary beneficiary test is bad news for employers who offer internships with limited educational benefits for interns or for those whose interns are performing work that would be completed by employees in their absence. The opinion of the court indicated that the more menial the work assigned to an intern, the less likely that they would legally be considered an intern. Employers, particularly those in tech and entertainment industries, are finding that they need to rework their model in order to suit this new finding. It’s the first significant appellate opinion on this issue, but it will not be the last. There are other intern related cases on appeal and awaiting decision by other courts throughout the nation. In California, the opinion will probably have a fairly lasting impact. California employers are already hustling to bring their internship programs up to snuff. Interns considered employees might very well begin seeking to recover unpaid wages, overtime, etc. in accordance with the penalties of violating the California Labor Code.

If you are unsure what constitutes a valid internship or if you need additional information regarding being misclassified as an intern instead of an employee, contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Employers Reclassifying Workers to Save Money

July 16, 2015 -Courts and regulatory agencies are increasing the scrutiny coming at employers regarding the relationship with their workers: businesses and independent contractors, contractors and subcontractors, employers and employees. In response, many employers are utilizing different tactics to classify their workers; reclassifying workers to save money by taking them off formal payroll and lowering costs. 

For years, employers have shifted work off their actual employees and on to independent contractors. This relabeling of the workforce with slight alterations to their work conditions left many in court or owing settlements. As this misclassification of employees as independent contractors is receiving such intense focus across industries, many businesses are now turning to other types of employment relationships:

Setting up Workers as Franchisees

Setting up Workers as Owners of LLCs

Both of these methods help to shield the business from tax and labor statutes that are attached to the formal payroll for actual employees of the company.

These new tactics have state and federal agencies aggressively putting a stop to the setup: passing local legislation to address the issue, filing briefs in worker’s lawsuits, and closely keeping an eye on the increasing popularity of what regulatory agencies see as an equally questionable alternative to the independent contractor employment model that has experience such a crackdown.

As employers are finding it more difficult to save costs by avoiding an official payroll, workers are finding that they are required to assume more risk. They suddenly need to shoulder more of the burden for health care premiums, retirement income and even job security. This shift in responsibility from the employer to the worker seems to be spurring the major influx of misclassification suits and allegations.

Employers are seeking more creative ways to misclassify workers. If you feel that you are misclassified or you need to discuss the issue of misclassification with a southern California employment law expert, contact an employment law attorney at Blumenthal, Nordrehaug & Bhowmik.