Property Appraisers Group Denied Certification of Class in Misclassification Suit Against Major Insurers

California’s 2nd District Court of Appeal affirmed a trial court ruling denying certification of class for plaintiffs in a misclassification lawsuit against major insurers: Allstate, Farmers, North American Compass Insurance Service Group, CIS Group, Advanced Field Services, and Capital Personnel Services. The ruling was a significant win for insurers and service companies as the legal team was attempting to bind a group of 1,550 California property appraisers together to sue for alleged misclassification (McLeery et al. v. Allstate).

The representative plaintiffs in the suit alleged that the two insurance providers and the various service companies intentionally insulated themselves from labor laws by contracting services for property appraisal upon policy creation or renewal rather than hiring appraisers as employees. The time frame cited for the allegations is 2005-2008.

The litigation has been ongoing for years, and legal counsel for the defendants does not predict an end to the proceedings anytime soon. The plaintiffs in the case may appeal the California Supreme Court decision or continue forward with separate lawsuits naming the plaintiffs individually. 

A second lawsuit (Lunde v. Farmers Group) was filed by a different group of 106 appraisers in Los Angeles County Superior Court in 2014 and has been stayed pending the outcome in the McLeery case.

The most recent ruling marks the second tie the appellate court stepped in to answer a procedural question for the McLeery suit. Initially, the plaintiff’s plan to assess damages classwide through statistical analyses of results from an anonymous, double-blind survey sampling class members, but the 2nd Circuit reversed the decision and ordered the trial court to conduct the evaluations according to the proposed plan.

A survey expert, Krosnick, was hired by the plaintiffs to design a method of determining liability and damages. The study consisted of 45-minute interviews with proposed class members. The defendant’s experts questioned the scientific validity of the survey claiming that it invited “significant error” by asking participants to provide precise recall of events up to 10 years in the past. The court found that the survey results failed to specify why workers skipped meal or rest breaks (the nature of their work or their preference), whether inspections were performed by Allstate or Farmers, and failed to address work-practice variations amongst inspectors. The 2nd District upheld the trial court’s decision not to certify class due to the proposed anonymous survey. The courts agreed that the plaintiffs’ case relied on showing that insurance carriers and service companies conspired together to violate labor laws, but the survey failed to do so. The case seems to lack a fair, manageable method of establishing liability.

If you have questions about filing a class action lawsuit or if you have experienced labor law violations on the job, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Getaround Employs a New Tactic to Defeat Employee Lawsuits

Gig economy businesses continue to face lawsuits demanding answers regarding whether or not workers should be classified as employees or independent contractors. Many gig economy companies rely on contract work for their business model. These companies have seen the most significant increase in misclassification lawsuits. As the number of misclassification lawsuits increased, so did the number of tactics businesses used to manage the employee lawsuits. These tactics have included PR campaigns, lobbyists, presenting legal arguments that they are not employers – just software programs, and more. The recent lawsuit filed against Getaround Inc. has resulted in a new tactic.

Getaround Inc. assists people hoping to rent their personal vehicles out online. But at the moment they may be best known in certain circles for employing an uncommon legal tactic to a common issue in today’s world. In a preemptive strike against a class action lawsuit, Getaround mailed out dozens of checks to former workers with paperwork attached asking them to sign away their legal right to sue. The interesting part is that a provision included in the documents stated the deposit of the enclosed check counted as an agreement to waive the right to sue – even without signing the included contract. Almost everyone who received the paperwork deposited the check.

The tactic is not unheard of, but it seems to be particularly effective in the gig economy. This may be due, in part, to the fact that industry workers lack financial stability. Attorneys asked to respond to the topic have described it as “insidious” since most former workers can’t afford to seek legal counsel for advice on depositing the check or holding out for a larger payout from an eventual lawsuit. Low wage workers are particularly vulnerable to this type of legal maneuvering.

The legal strategy in Getaround’s case highlights how creative gig companies are willing to be to avoid scrutiny of their worker classification methods. Many gig companies of this nature are not profitable, and reclassifying workers and providing employment benefits would mean even less profitability for the company. Many gig companies throughout California are still in a flat spin following California Supreme Court’s sweeping ruling last year limiting the scope of work they can classify as “contract” labor.

Settling worker claims using the “Pick Up Stix” tactic (as it is often referred to) is unusual in the gig economy, but this may be largely due to the fact that most gig economy companies require workers to sign class-action waivers as part of their arbitration agreements.

Are you misclassified on the job? If you have questions about what it means to be classified as an independent contractor versus an employee, don’t hesitate to get in touch with an experienced employment law attorney at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Our convenient locations in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago make it easy for us to be your advocate and seek the justice and compensation you deserve.

Abrishamian Requests Class Certification in Employment Law Suit Against TotalMed

On June 28th, 2019, Natalie Abrishamian filed a first-amended class action complaint against TotalMed Staffing, Inc. alleging numerous California labor law violations. The lawsuit was filed in the Superior Court of Los Angeles. The allegations included in the complaint were: failure to pay for all hours worked, failure to pay minimum wage, failure to authorize or permit meal breaks, failure to furnish accurate wage statements, waiting time penalties, and unfair business practices.

Abrishamian, a nurse employed through TotalMed Staffing, a Wisconsin employment staffing agency authorized to do business in California, was assigned to work Kaiser Permanente Panorama City inside California as a non-exempt, hourly wage traveling nurse. The 13-week assignment began on November 5th, 2018, and ended on February 2nd, 2019. Abrishamian was assigned three 12-hour shifts each week. On approximately December 13th, 2018, the plaintiff's employment was terminated. The plaintiff was out of work two months before the agreed-upon end date of her employment.

Issues About the Case:

1.        Defendant Did Not Take "Per Diem" Payments into Account When Calculating Overtime Rates

2.        Defendant Did Not Provide Payment for Mandatory Training and Orientation Specific to the Job

3.        Defendant Did Not Provide or Authorize Employees to Take Mandatory Meal Breaks and Rest Breaks

4.        Defendant Did Not Provide Employees with Accurate Wage Statements as Required

5.        Defendant Engaged in Unfair Business Practices

The class action will apply to current and former employees of TotalMed Staffing, Inc. who were employed during the class time period (anywhere from 4 years before the original filing through the date of the hearing). Plaintiffs' legal counsel has filed a demand for jury trial. Abrishamian seeks class-action certification from the court on behalf of each of the following classes included in the complaint: Per Diem Class, Unpaid Time Class, Meal Break Class, and the Rest Break Class.

 If you have questions about California labor law violations or if you are not receiving overtime pay, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Call or come by one of the Blumenthal Nordrehaug Bhowmik De Blouw LLP locations nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Farmworkers Overtime Pay Lawsuit Before Washington Supreme Court

The Washington Supreme Court will decide whether or not farmworkers must receive overtime wages – after striking down agricultural pay practices twice in recent years. While a hearing isn't yet set, both sides are preparing their case with potentially hundreds of millions of dollars a year in additional costs at risk. According to state law, workers receive overtime pay after eight hours a day or after a 40-hour week. The question before the Washington Supreme Court is whether or not the state law requiring overtime pay should apply to farmworkers. Naysayers insist that inflicting this high cost on a vital portion of the state's economy is unreasonable. But does exempting agriculture from paying workers time-and-a-half for overtime hours violate the state constitution?

Other recent farm-pay lawsuits led the Supreme Court to find that piece-rate workers must be paid separately for rest periods and downtime.  The current overtime lawsuit launched off a 2016 lawsuit against a local dairy farm in Yakima County. Court records indicate that Jose Martinez-Cuevas and Patricia Aguilar, named plaintiffs in the case, worked at DeRuyter Brothers Dairy for just over a year. The owners sold the dairy settled the majority of the claims, but the Superior Court judge's ruling on overtime specifically was inconclusive. This case's main issue will skip the court of appeals as the Supreme Court agreed to take on the question.

In 1959 the Legislature exempted agriculture from the state's minimum wage law guaranteeing workers overtime pay. The lawmakers were acting under the 1938 federal Fair Labor Standards Act. Legal counsel for the plaintiffs argues that the federal agricultural exemption has historic racism at its roots. They claim Southern lawmakers created the exemption to limit the pay of black farmworkers. They argue that Washington lawmakers adopting the legislation did not consider the exemption's racist history. Arguments for the plaintiffs are based on a combination of the alleged racial history of the law excluding agricultural workers and the current racial makeup of the excluded agricultural workforce being close to 100% minority. Attorneys for the plaintiffs in the case insist the exclusion should be declared unconstitutional.

Those arguing against the Plaintiffs' case claim the fixation on the racial makeup of the current agricultural workforce has no relevance, noting that in 1959 the farmworker population was 85% white workers. They attribute the exemption to the nature of agriculture rather than racism. As an inherently seasonal business, proponents of the current interpretation of the law argue that overtime during certain times of the year is natural and necessary for the industry.

If you have questions about overtime law or who receives overtime pay, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the location nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Is Starbucks Misgendering Trans Woman a Violation of Labor Law?

Starbucks recently claimed that misgendering or calling an employee by the wrong pronoun is not harassment, which is in direct contradiction to their employee guidelines. A former Starbucks employee, Maddie Wade, filed a complaint at the Fresno Superior Court in California suing the company for harassment and discrimination.

Wade, a former barista at a Starbucks in Fresno, alleges that when she began her transition, her manager at the time reduced her work hours and refused to call her by preferred pronouns. She also claims that her former Starbucks manager began posting transphobic material online through social media outlets. Wade claims that she was bullied and targeted by her manager at the Fresno Starbucks daily after she came out as transgender.

Allegedly, the mistreatment by her boss, Dustin Guthrie, escalated to unbearable levels and Wage had to transfer to a different Starbucks location. The harassment continued at the next Starbucks location. Wade claims her manager at the new site encouraged her to take the matter to the District Manager, and she did, but the situation was not resolved. After nine years of employment, Wade eventually left her position at Starbucks at the advice of her therapist due to the mental stress and “intolerable conditions” she was forced to endure.

Wade seeks general damages, special damages, punitive damages, and attorneys fees from her former employer. She states that the loss of health insurance prevented her from receiving the treatment and procedures she needs to complete her transition. Wade also claims that Starbuck’s value marketing group for its LGBTQ employees on the Facebook page, Starbucks Partners – Pride Alliance Network, refuses to allow her to post on its wall.

It is ironic that as we enter Pride Month, Starbucks seems to be making moves counter to its public record highlighting LGBTQ acceptance. The company is reasonably well known for its LGBTQ acceptance: scoring 100 out of 100 on Human Rights Campaign’s 2018 Corporate Equality Index, releasing annual LGBTQ-focused products, rolling out trans-inclusive health care included in their benefits package, etc. Attorneys representing the massive coffee provider are filing a motion for summary judgment and arguing that there is not enough evidence to show that Guthrie was calling Wade by incorrect pronouns on purpose. Without proof of intent, the Defendant contends that the behavior in itself cannot constitute discrimination under the California Fair Employment and Housing Act.

If you have questions about filing a discrimination lawsuit or if you experienced discrimination in the workplace, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Mattel Faces Age Discrimination Lawsuit

A former Mattel employee sued Mattel for age discrimination. 71-year old Benny Binshtock filed the age discrimination lawsuit against Mattel in Los Angeles Superior Court listing several allegations: wrongful termination, age-based harassment, age-based discrimination, retaliation in the workplace, intentional infliction of emotional distress, defamation, fraud, and concealment. Binshtock claims he was falsely accused of unnecessarily calling women over to his workspace as a justification to fire him, but that the real reason was his age. The age discrimination lawsuit seeks unspecified damages.

Binshtock firmly believes that his age was a contributing factor in the decision of management to terminate his employment and that the company intentionally sought to bring younger employees into the plaintiff’s position in the workplace. Binshtock’s time with Mattel began with his hiring in 1968. He was initially hired as an apprentice model maker and later received a promotion to supervisor. According to the complaint, the plaintiff’s department full of model makers like himself had not seen new hires in a significant number of years. Binshtock’s lengthy term of employment lent his complaint authority when he noted that the people in his department ranged in age from 40 to 65 years and that Mattel had employed them for many years.

In March 2018, Mattel employees saw the beginning of a round of layoffs. Binshtock claimed it was evident that defendants had clear intentions to terminate older employees. Within a month of the initial layoffs, Binshtock was called in for a meeting with Human Resources. In this meeting, he was advised that they had received a complaint against him of sexual harassment in the workplace. The “complaint” indicated that Binshtock always called female co-workers over to this office for his amusement rather than for work-related necessities. The plaintiff claims the sexual harassment complaint was completely baseless – fabricated to defame him of the reputation he spent years building on the job at Mattel.

In the same meeting with Human Resources, the HR rep changed her accusation against Binshtock from sexual harassment to “making women uncomfortable.” The plaintiff was called into another meeting in May 2018, where HR told him that an investigation had been conducted into the matter and had resulted in the decision to terminate his employment. Within the month, Binshtock, 70 years old at the time, was fired.

If you have been fired and need to discuss filing a wrongful termination lawsuit, please don’t hesitate. Get in touch with an experienced employment law attorney at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Our convenient locations in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago make it easy for us to be your advocate and seek the justice and compensation you deserve.

“2 Investigates” Features Wrongful Termination Lawsuit: Plaintiff Wins

In South San Francisco, California KTVU 2 Investigates completed a report on the situation of Ivania Centeno, a 13-year employee of Bon Appetit Café inside Genetech. Centeno alleges wrongful termination due to a family-leave discrepancy. The story helped spark an award for the plaintiff totaling hundreds of thousands of dollars.

Centeno claimed she was released from her position in 2017 because she took time off to care for her mother-in-law who was dying; doing so was allegedly against the company's policy. Centeno attempted to fight for justice in her case for a year before 2 Investigates completed a report and aired it in a February segment that highlighted the situation and the more significant issue at hand: a legal loophole in California that prevents employees from accessing protection provided under current family-leave laws when the case applies to in-laws.

According to California paid leave law the care of in-laws is covered, but under the California Family Rights Act, care of in-laws is not covered. As the two laws contradict each other, and it is not clear which law takes precedent, legislative changes are necessary for any long-term resolution.

In the current case of Centeno and Bon Appetit Café, Centeno claims her mother-in-law because seriously ill and Bon Appetit granted Centeno permission to fly to Nicaragua to provide the needed care. Centeno traveled to Nicaragua and provided her mother-in-law with the necessary care until she passed. After her mother-in-law died, Centeno returned to the states to go back to her job. When she arrived, Bon Appetit fired her, insisting that she missed too many days of work and that caring for her mother-in-law was not a protected activity under the family leave policy.  

Management at the company claims that computer software made the decision to terminate Centeno. The trip to care for her mother-in-law, as well as previous absences due to a work-related injury, were input into the software, which then generated the conclusion to terminate Centeno's employment.  

In April 2019, the case was resolved with Centeno receiving an undisclosed amount of back pay, unemployment benefits, and an award of $211,795 in attorney fees and an additional $25,603 in court costs.

If you have questions about wrongful termination or what constitutes wrongful termination, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the Blumenthal Nordrehaug Bhowmik De Blouw LLP location nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.