Intolerable Working Conditions Support a Nurse’s Constructive Termination Claim

A 54-year old Filipino woman, Shirley Galvan, worked for Dameron Hospital Association (Dameron) as a nurse for approximately twenty-five years.  In 2011, Doreen Alvarez became Ms. Galvan’s supervisor and allegedly began harassing Ms. Galvan and other Filipino employees.  Ms. Alvarez commented that the Filipino employees could not speak English, had thick accents, made too much money, were too old, and had been at Dameron too long.  Ms. Alvarez threatened to “clean house” and repeatedly humiliated the Filipino employees by making derogatory statements about their accents, level of education, and work performance.  Ms. Galvan went out on stress leave due to the anxiety she was experiencing as a result of this harassment.  She was constructively terminated in 2014.

Ms. Galvan brought suit against Dameron and Ms. Alvarez, alleging that she had been discriminated against and harassed on the basis of her age and national origin, and constructively terminated in violation of the California Fair Employment and Housing Act. (more…)

Can Attorneys be Bound by Provisions in their Client’s Settlement Agreements?

After reviewing a client’s settlement agreement, it is not uncommon for attorneys to sign beneath a notation “approved as to form” or “approved as to form and content.”  When an attorney provides such a signature, is he or she bound by the contents of the settlement agreement?  Possibly.  The California Supreme Court recently held that counsel’s signature approving a release as to content and form does not preclude a factual finding that counsel both recommended that his or her client sign the document and intended to be bound by its provisions.  Monster Energy Co. v. Schechter, Cal. S. Ct. Case No. S251892 (published July 11, 2019). (more…)

Dynamex Applies to Franchisors and Is Retroactive:  The Ninth Circuit Weighs in

All companies want to reduce their labor costs.  Unfortunately, some resort to classifying their workers as independent contractors when they really should be classified as employees.  Among other issues, that misclassification robs the workers of critical protections under the law:  For example, many wage and hour laws do not apply to independent contractors.

Last year, in Dynamex Ops. v. Superior Court (2018) 416 P.3d 1, the California Supreme Court issued a strong opinion in favor of California’s workers.  Dynamex adopted the “ABC test” for determining whether workers are employees or independent contractors under the California wage orders.  Now, in Vasquez v. Jan-Pro Franchising Int’l (May 2, 2019), the Ninth Circuit Court of Appeals has gone further, approving the ABC test, holding that Dynamex applies retroactively, and applying it to franchise relationships. (more…)

LA Unified School District Teacher’s Claims Alleging Harassment and Retaliation Fail

Aurora Le Mere was a Los Angeles Unified School District (LAUSD) teacher for thirteen years.  In that time, she filed a number of complaints and claims arising from her employment, including worker’s compensation claims and administrative complaints regarding LAUSD’s violations of provisions of the Education Code.  In 2007, she filed a lawsuit against LAUSD and two individuals for discrimination, harassment and civil rights violations.  All her claims and cases through 2007 settled.  Then, in 2015, Ms. Le Mere filed another complaint against LAUSD and six individuals claiming that she had been unlawfully harassed and retaliated against since filing the 2007 case and worker’s compensation claims.

The defendants successfully demurred twice to the 2015 complaint.  (more…)

How to Stop Wage Theft and Hold Your Boss Personally Liable for Unpaid Wages under California Law

Wage theft, or the failure to pay all wages due, is a serious problem.  Studies show that up to $50 billion in wages go unpaid every year in the United States, and even workers who get court judgments for unpaid wages find it hard to collect on them.  One reason for this state of affairs is that the law makes it relatively easy for individuals to hide behind corporate status and/or corporate shells in order to protect their assets.

A 2018 California court case clarifies that workers in this state have an important tool that allows them to bring suit against individual business owners for unpaid wages.  In Atempa v. Pedrazzani (2018) 27 Cal.App.5th 809, the court held that two former employees could sue the owner of the restaurant at which they had formerly worked for unpaid wages.  The court reached this decision despite the fact that the owner had created a corporation that was technically the employees’ employer. (more…)

An Employer May be Liable in a Car Accident Caused by an On-Call Employee

Ray David Moreno was the passenger in a company-owned pickup truck his father was driving when the vehicle veered off the road, hit an embankment, and rolled over.  Mr. Moreno sustained serious injuries and sued his father’s employer, Visser Ranch, Inc. and the owner of the vehicle, Graceland Dairy, Inc.  Mr. Moreno maintained that Visser Ranch was vicariously liable because the driver of the truck was acting in the scope of employment at the time of the accident.  Moreno v. Visser Ranch, Inc., et al., 5th Dist. Case No. F07822 (filed December 20, 2018). (more…)

Providing PAGA Notice to the LWDA | Hunter Pyle Law

PAGA, also known as the Private Attorneys General Act of 2004 (Cal. Labor Code § 2698, et seq.) requires workers to give written notice to California’s Labor and Workforce Development Agency, or LWDA, before seeking civil penalties that otherwise could only be recovered by the state of California.  A 2018 appellate decision in Brown v. Ralph’s Grocery Company, a case that has been pending since 2009, provides guidance in terms of how much written notice is required in PAGA notice letters, and when workers are required to amend their PAGA notice letters in order to preserve claims that that they discover after the date of their letter. (more…)

Employer not Liable in Personal Injury Lawsuit where Employee was on her Cell Phone at the Time of the Accident

Brittini Zuppardo was talking with one of her employer’s court reporters, Michelle Halkett, while driving home from her boyfriend’s house late one evening.  Ms. Zuppardo was still on the phone when her vehicle crashed into Plaintiff Jessica Ayon, a pedestrian.  Ms. Ayon sustained significant injuries.  The police report indicated that Ms. Zuppardo was on the phone with “one of her court reporters” when the collision occurred.   (more…)

California Employers Must Pay for All Off-The-Clock Work: Troester v. Starbucks

The California Supreme Court has clarified an important issue regarding wage and hour claims under California law .  In Troester v. Starbucks Corporation (2018) 5 Cal.5th 829, as modified on denial of reh’g (Aug. 29, 2018), the Court addressed the question of whether the de minimis doctrine applies in claims brought under the California Labor Code.  Critically, the Court held that it does not.  As a result, California employers must pay for all off-the-clock work, even when it does not add up to very much money.

The de minimis doctrine, as developed under federal law, has been something of a “get out of jail free” card for employers.  In Latin, de minimis refers to the phrase, “de minimis non curat lex,” or “the law does not concern itself with trifles.”  In the modern world, the doctrine has been used under federal law to allow employers to avoid paying wages for small amounts of otherwise compensable time based upon a showing that recording that time would be difficult to do.

In Troester, for example, Starbucks sought to use the de minimis doctrine to avoid paying wages for  short periods of time spent closing the store and transmitting  daily sales, profit and loss, and store inventory data to Starbucks’s corporate headquarters.  Starbucks also sought to avoid paying for time spent activating the store’s alarm.

All in all the plaintiff estimated that he was owed about $100.  That may not sound like a lot, but give the number of Starbucks in California it is clear that Starbucks was saving itself a significant amount of money in unpaid wages through its practices.

The California Supreme Court divided the Troester case into two separate holdings.  First, the Court found that California’s wage and hour laws and regulations had not adopted the federal de minimis doctrine.  That is a critical difference between the California Labor Code and the federal Fair Labor Standards Act (also known as FLSA).

Second, the Court held that where an employer requires an employee to work “off the clock” the de minimis doctrine does not apply to claims brought under California law.

In conclusion, the Court recognized that it might be difficult for an employer to track small amounts of time for the purpose of calculating payroll.  However, employers are in a far better position to structure work so that employees are paid for all time spent working.  Indeed, it appears that after Starbucks was sued it figured out how to organize its employees’ work so that they did not have to perform work before they punched in and after they punched out.

Troester reaffirms California’s strong commitment to ensuring that workers are paid for every minute that they work.  If you are being forced to work off-the-clock, or have questions about your rights in the workplace, feel free to contact us at inquire@hunterpylelaw.com or (510) 444-4400 for a free and confidential initial intake.

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Can My Boss Run a Background Check on Me in California?

California has two laws that protect employees from unauthorized background checks: the Consumer Credit Reporting Agencies Act, Civil Code section 1785, et seq. (“CCRAA”) and the Investigative Consumer Reporting Agencies Act, Civil Code section 1786, et seq. (“ICRAA”).  (This blog post addresses only ICRAA, but we will post about CCRAA soon.)  The California Supreme Court recently upheld the constitutionality of these statutes in a case called Connor v. First Student, Inc., S229428 (August 20, 2018).  So now what? (more…)