Workers sue Building Materials Holding Corp. for overtime violations

The Los Angeles Times reports that a group of construction workers has filed suit against a San Francisco-based home-building company, claiming that they were coerced for years into working unpaid overtime.

In a federal court lawsuit, the 14 plaintiffs also allege a variety of other violations, including being asked to sign blank time sheets, skip breaks and travel without compensation, attorneys said. They are seeking payment of the wages they claim to be owed, but they did not specify an amount.

The suit was filed in U.S. District Court in Los Angeles against Building Materials Holding Corp., which provides residential construction services through a subsidiary, SelectBuild Construction Inc.

For the full story, go to this link.

Class action against WalMart continues for work off the clock and denied breaks

Boston.com reports that the Massachusetts Supreme Judicial Court reinstated a class-action lawsuit against Wal-Mart yesterday, ruling that a lower court judge was wrong to throw out the case filed by 67,500 workers who claim they were denied meal breaks and forced to work off the clock.

For the full story, go to this link.

Jury awards $3.1 million to LAPD Officer retaliated against for reporting racism

The Los Angeles Times reports that Robert Hill, a 25-year veteran, said superiors retaliated against him after he reported that a sergeant used racial epithets and may have been involved in embezzlement. Jurors vote 11-1 in his favor. A Los Angeles jury Monday awarded $3.1 million to a Los Angeles police officer who said he was retaliated against for reporting that his superior used racial epithets and might have been involved in embezzlement of department funds.

Robert Hill, a 25-year veteran of the department, said he was called a "rat" and moved to an inferior assignment at a less desirable division after he reported that Sgt. Gilbert Curtis used racial slurs -- "wetbacks," for instance -- and made derogatory statements including, "If God loved them, why did he make them black?" For the full story, go to this link.

Firm sued for asking age of applicant for HR position

The Philadelphia Inquirer reports that Blue Bell communications company, which employs 5,000 technicians nationwide, is being sued because its major investor allegedly a 55-year-old job candidate for the position of human resources director, "How old are you, 78?"

According to the suit, Frank Bruno, of Audubon, Montgomery County, had aced interviews with Unitek's top management, who all but assured him he had the job. He only needed one final interview with Joseph Kestenbaum, Unitek's major investor, the suit says. Kestenbaum is not a defendant in the suit.

At first, when Kestenbaum allegedy posed the question, Bruno tried not to respond, the lawsuit says. When Kestenbaum persisted, Bruno answered.

The interview came to a quick end, and Bruno did not get an offer, the lawsuit says.

Instead, a 36-year-old woman with 11 years in human resources - compared with Bruno's 25 - was hired.

"Typically, companies hire human resources directors to help them comply with workplace laws, so it is particularly ironic that Unitek refused to hire the better-qualified applicant because of his age," Marie M. Tomasso, director of the EEOC's Philadelphia office, said in a statement.

Kestenbaum was unavailable for comment yesterday afternoon.

Bruno's resume included stints at the director, corporate director and vice president levels.

The suit seeks back pay for Bruno dating from April 20, 2006, the day of the interview. The EEOC, which usually tries to mediate a solution before suing, also wants the company to institute policies to prevent discrimination against those over 40. See the Philadelphia Inquirer article for more.

Unable to perform one job may not prevent a worker from performing another while on FMLA leave.

Many disabled workers must take time off from work under the Family Medical Leave Act (FMLA), or, if in California, under the California Family Rights Act (CFRA). Such leave is available to workers for a "serious health condition." It is illegal for an employer to fire a worker for taking such leave. If a worker is fired for taking such leave, she may sue for retaliation in court. To prevail on such a lawsuit, the worker must prove she suffered from a "serious health condition" at the time the leave was sought or taken. A “serious health condition” is one which renders the worker unable to work at all or unable to perform one or more of the "essential functions" of her position.

What are “essential functions”? The “essential functions” of a job are those duties and responsibilities that the individual who holds the position must be able to perform, with or without the assistance of a reasonable accommodation. Marginal functions of the positions are excluded. Whether a particular job function is essential is determined on a case-by-case basis, by considering the nature of both the particular work and the particular workplace. In approaching this inquiry, “consideration shall be given to the employer's judgment as to what functions of the job are essential.” Relevant factors in determining a position's “essential functions” include: (1) Whether the employer currently requires all employees in the position to perform the functions that the employer states are “essential”; (2) Whether removal of functions currently required would “fundamentally alter” the position's nature, which in turn depends on whether the position exists to perform a particular function, whether the number of other employees among whom the job function may be distributed is limited; and whether the position is highly specialized and requires an employee with certain expertise or skill; and (3) Whether the duty in question could easily be redistributed (delegated) to other employees; if so, this fact suggests (but does not prove) that the function is “marginal” and not “essential.” Regular attendance and punctuality, ability to get along with supervisors and coworkers, ability to handle normal workplace stress, and ability to follow supervisor's directions may be essential functions of a job.

Many workers have two jobs at the same time for which they are employed part time. The essential functions of one of the jobs may be different from the essential functions of the other. Therefore, a worker's serious health condition may make it impossible to perform the essential functions of one job while not interfering with the essential functions of the other. In Lonicki v. Sutter Health Care, the California Supreme Court considered this circumstance.

Here are the facts of Lonicki. The plaintiff worked for Sutter Health (the eefendant) as a technician at one of its hospitals. At one point her supervisor changed her schedule and increased her workload so much that Lonicki became upset and informed her supervisor she could not work due to the stress caused, in part, by the change in schedule. Lonicki than took one month off for “FMLA leave.” The employer approved Lonicki’s request and designated the time off as FMLA/CFRA leave. HOWEVER, WHILE ON LEAVE, Lonicki continued to work part-time for Kaiser – ANOTHER EMPLOYER - performing basically the same kind of work. The defendant asked the judge to dismiss the case, arguing that the plaintiff could not truly have had a “serious health condition” if she was able to keep working for the other employer.


The California supreme court decided that the plaintiff’s continued employment at Kaiser did not necessarily mean that she did not have a “serious health condition” with respect to her duties at the hospital. The Court said that the key question in such a case where an employee keeps working while on leave is whether her medical condition (stress) precluded her from performing the essential functions of her position at the defendant, not from performing the duties of any position for any employer. Federal cases have basically said the same thing: A showing that an employee is unable to work in the employee's current job due to a serious health condition is enough to demonstrate incapacity. The fact that an employee is working for a second employer does not mean he or she is not incapacitated from working in his or her current job.HOWEVER, the Supreme Court also cautioned that the plaintiff’s ability to continue working for Kaiser was “strong evidence” of her ability to perform her duties for the defendant

In view of this court case, an employee may take medical leave away from one job to accommodate a disability or serious health condition while continuing to work for a different employer so long as the second job does not have duties that the employee is unable to perform in the job she seeks leave from.

Court holds that a serviceman can't sue the State for discrimination

Under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), Title 38 of the United States Code Sections 4301 et seq., employers are required to grant employees leaves for periods of military service, generally for a total of up to five years. Title 38 of the United State Code Section 4312(a)(2). California military leave laws (California Military & Veterans Code Sections 389 et seq.), like the USERRA, ensure that employees are not adversely affected in their employment because of military service.

The National Defense Authorization Act for 2008 (NDAA) amends the Family and Medical Leave Act of 1993 (FMLA) to permit a “spouse, son, daughter, parent, or next of kin” to take up to 26 workweeks of leave to care for a “member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness.”

Today, a court decided that one cannot sue a State employer for violations of this law. Robert David Townsend sued his former employer, the University of Alaska, Fairbanks, in federal district court, alleging violations of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA” or the “Act”), 38 U.S.C. §§ 4301-4333. The district court dismissed his action, concluding that it lacked jurisdiction over a USERRA claim brought by an individual against an arm of the state. The district court also denied Townsend’s motion to amend his complaint to add individual state supervisors as defendants, reasoning that such an amendment would be futile because the court would still lack jurisdiction over the amended complaint. Townsend timely appealed. The Ninth Circuit Court of Appeal affirmed. Read the decision in Townsend v. University of Alaska (9th Cir. 9/5/08).

Female employees recover $33 million in gender discrimination suit

A class of female financial advisers settled their discrimination suit against Smith Barney for $33 million. The women claimed disparate treatment, and that in response to their complaints, the brokerage subjected them to a hostile work environment, disclosed their complaints to male coworkers, and retaliated against them, resulting in termination. Smith Barney responded that female employees were treated no differently than their male counterparts. The agreement includes injunctive relief related to account distributions, partnership arrangements, promotions, retentions and other policies and procedures. An appointed diversity monitor and industrial psychologist will oversee the changes. (The case was filed in San Francisco, where the majority of the named plaintiffs resided and many of the alleged acts occurred.)

US House of Reps passes amendments to the Americans With Disabilities Act (ADA)

The Americans with Disabilities Act of 1990 was intended to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” The ADA has transformed our nation since its enactment, helping millions of Americans with disabilities succeed in the workplace, and making transportation, housing, buildings, services and other elements of daily life more accessible to individuals with disabilities.

Just as other civil rights laws prohibit employers from basing decisions on characteristics like race or sex, Congress wanted the ADA to stop employers from making decisions based on disability.

Unfortunately, since 1999, several U.S. Supreme Court decisions have narrowed the definition of disability so much that people with serious conditions such as epilepsy, muscular dystrophy, cancer, diabetes, and cerebral palsy have been determined to not have impairments that meet the definition of disability under the ADA.

The result: In 2004, plaintiffs lost 97% of ADA employment discrimination claims, often due to the interpretation of definition of disability. People who are not hired or are fired because an employer mistakenly believes they cannot perform the job – or because the employer does not want “people like that” in the workplace – have been denied protection from employment discrimination due to these court decisions. This was not the intent of the ADA.

The ADA Amendments Act of 2008, passed by the House on June 25, 2008 by a vote of 402-17:

• Specifically rejects the erroneous Supreme Court decisions that have reduced the protections for people with disabilities under the ADA, restoring original Congressional intent.
• Makes it absolutely clear that the ADA is intended to provide broad coverage to protect anyone who faces discrimination on the basis of disability.
• Clarifies the definition of disability, including what it means to be “substantially limited in a major life activity.”
• Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability.
• Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability.
• Is supported by a broad coalition of civil rights groups, disability advocates, and employer trade organizations. 

Judge Upholds $185 Million Award in Wal-Mart Class Action: Off-the-Clock Judgment Against Wal-Mart Upheld

Wal-Mart should pay nearly 200,000 current and former Pennsylvania employees about $185 million for forcing employees to work without pay, a Philadelphia common pleas judge has ruled. The opinion by Judge Mark I. Bernstein affirms a jury verdict that found the retail giant forced employees to work off-the-clock and to skip required rest breaks. The cases are Braun v. Wal-Mart and Hummel v. Wal-Mart.    Read article at Law.com.

Supermarket chain Gristede’s wrongly denied overtime pay

Supermarket chain Gristede’s wrongly denied overtime pay to more than 400 current and former lower-level managers, a federal judge ruled last week. Federal District Judge Paul A. Crotty found that Gristede’s had sought to treat the managers as hourly workers for some purposes but as salaried employees for the purposes of overtime. Attorneys for the plaintiffs estimate that damages could reach $25 million. See the New York Times for the full story.

Do men have workplace to family leave?

Male employees are entitled to paternity leave in California. Paternity leave is the time a father takes off work at the birth or adoption of a child. Employers of 50 or more persons are generally required to allow their employees (both men and women) who they have employed for more than a year to 12 weeks of unpaid family leave after the birth or adoption of a child under the Family and Medical Leave Act (FMLA). At the end of the leave, the employer must allow the employee to return to his job or a similar job with the same salary, benefits, working conditions, and seniority.

What are my rights if I become pregnant during my employment?

It is illegal under the California Fair Employment and Housing Act for an employer of 5 or more persons to discriminate against an employee in compensation or the terms, conditions, or privileges of employment because of pregnancy, childbirth or related medical conditions. Pregnancy discrimination is viewed as a form of sex discrimination under California law.

Under the federal Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, employers of 15 or more persons may not discriminate on the basis of pregnancy, childbirth, or related medical conditions.

While an employer may not terminate an employee for her pregnancy, it may fire the employee for poor work performance or unacceptable behavior that may result from pregnancy. The pregnancy is not a shield to an otherwise just termination decision.

There are strict time limits and procedure for complaining of pregnancy discrimination. Before filing a lawsuit under federal law for pregnancy discrimination, an employee must file a "charge" with the EEOC must ordinarily be filed within 180 days after occurrence of the alleged act of unlawful employment discrimination. To file a lawsuit under the California anti-discrimination law, an employee must make a complaint to the DFEH within 1 year of the discriminatory act.

Pregnancy discrimination violates Article I § 8 of the California Constitution's ban on sex discrimination. It is against the public policy of the State of California and the United States of America to terminate a person's employment because of her pregnancy, childbirth or related medical condition. A victim of a wrongful termination may bring an action against their former employer (regardless of how many employees it has) in a California court for wrongful termination in violation of public policy.

Under the California Fair Employment and Housing Act it is illegal to harass someone because of their pregnancy, childbirth or related medical condition. Employers and employees who commit the harassment may be liable for violations of this law. Creation of a hostile work environment is a form of harassment.

There are several laws which provide employees with protected leave from work during and after pregnancy. Under the California Fair Employment and Housing Act (which includes the California Pregnancy Disability Leave Law), it is unlawful for an employer of 5 or more persons to refuse to allow a female employee "disabled" by a pregnancy, childbirth or related medical conditions to take a leave for a reasonable period of time not to exceed 4 months. After the leave, the employee may return to the same position she had before or a comparable position. The employee may even be able to return to work after exceeding the 4 months if the employer has allowed other employees to do so. Under a California regulation, the employee who takes such leave may use any accrued vacation leave during this period of time. This leave of absence may not be taken before the disability begins or after it ends. The employer can require the employee to provide reasonable notice of the date the leave of absence will begin and its expected duration. The employer need not return the employee to her position if her position would have been eliminated regardless of the pregnancy or safety and efficiency would be compromised.

If the employee has worked for at least a year for an employer of 50 or more persons, the employee may take up to 12 additional weeks of leave under the California Family Rights Act. This leave is available for many purposes, including time to bond with a biological, adopted or foster child or to care for a seriously ill child. This law also requires reinstatement.

The leaves of absence described above are unpaid. However, an employee may be entitled to State Disability or Paid Family Leave, forms of government assistance.

Under the California Fair Employment and Housing Act, it is unlawful for an employer to refuse to provide a reasonable accommodation requested by an employee for conditions of pregnancy, childbirth, or related medical conditions. The request must be supported by advice from a doctor or other healthcare provider. This can include transfer of such an employee to a less strenuous or hazardous position for the duration of the pregnancy or childbirth related disability where the transfer can be reasonably achieved. However, the employer is not obligated to create an entirely new position for the employee as an accommodation. Employees should also note that the federal Pregnancy Discrimination Act does not prohibit the denial of personal leave for breast-feeding and childcare.

Any health insurance provided by an employer must cover expenses for pregnancy-related conditions on the same basis as costs for other medical conditions. Health insurance for expenses arising from abortion is not required, except where the life of the mother is endangered.

Pregnancy-related expenses should be reimbursed exactly as those incurred for other medical conditions, whether payment is on a fixed basis or a percentage of reasonable-and-customary-charge basis.

The amounts payable by the insurance provider can be limited only to the same extent as amounts payable for other conditions. No additional, increased, or larger deductible can be imposed.

Employers must provide the same level of health benefits for spouses of male employees as they do for spouses of female employees.

Pregnancy-related benefits cannot be limited to married employees. In an all-female workforce or job classification, benefits must be provided for pregnancy-related conditions if benefits are provided for other medical conditions.

If an employer provides any benefits to workers on leave, the employer must provide the same benefits for those on leave for pregnancy-related conditions.

A victim of pregnancy discrimination who prevails on her claims at trial may be awarded reinstatement to her position (if fired) as well as compensation for emotional distress, past and future lost wages, punitive damages, attorney's fees, expert witness fees and costs.

Fastenal to pay $10 million in preliminary class action lawsuit settlement

Fastenal Co. Friday said it would make a cash payment of $10 million as part of a preliminary settlement to a class action lawsuit that related to the calculation of earned overtime wages for certain of its former assistant general managers. Read further.

If I obtain money either from trial or a pre-trial settlement, will I have to pay taxes?

I am not a tax professional and do not give tax advice. You should see a tax professional to determine whether and the extent to which you will have to pay taxes on your settlement or award. However, successful plaintiffs in employment cases are required to pay taxes on their settlements or awards. Awards and settlements in wrongful termination and discrimination cases usually represent lost wages and emotional distress damages - both of which are taxable. Your attorney will be responsible for any taxes on his or her attorney's fees.

If I file a lawsuit, will my case be decided by a jury?

Perhaps. It depends on whether you entered into a binding written arbitration agreement with your prior employer. If you did, you likely have given up your right to a jury and must present your claims to an arbitrator. Arbitration, traditionally, is a binding process where a single neutral or panel of neutrals, agreed upon by all parties to a case, hears the issues and renders a decision. It is usually a formal type of hearing, similar to a bench trial, although there is less formality in the presentation of evidence. There is very little chance of appeal after an arbitration decision is made.

Regardless of the forum, your case is tried in, there is a good chance it will settle before it is decided. Oftentimes, cases settle in mediation.Mediation, in its traditional form, is a voluntary and confidential process, non-binding on the parties. It is negotiation through an intermediary who conducts private caucuses with each party, identifies key issues and explains the consequences of not reaching settlement. Since the goal of a mediator is to assist the parties in reaching an agreement acceptable to all, mediators do not impose their will or opinions on the parties. The decision to settle is yours alone, however. I will only provide you with guidance and recommendations on whether or not to settle. The parties can make settlement offers at any and all times (even after the case had gone to trial).

What is a deposition?

A deposition is testimony given under oath and recorded for use in court at a later date. Though depositions usually take place at a conference table in an attorney's office, they are as serious as if they took place in the presence of a judge and jury. At a deposition, there is a court reporter present and usually a videographer.

If you file a lawsuit, your deposition will probably by the most important event with the exception of your testimony at trial. Cases are won and lost during depositions. The attorney taking your deposition will develop an impression of the kind of witness you'll be at trial based on your performance in the deposition.

In advance of your deposition, you should prepare by reviewing carefully all the documents relating to your employment. The defendant’s attorney will probably ask you about each of them in detail.

You should dress professionally because the video recording of your testimony will likely be played to the judge or jury at the trial of your case. If you say anything untrue at the deposition, it will probably be used against you at trial especially if the defendant has evidence that shows what you testified to at your deposition to be untrue. At your deposition, the defendant’s attorney will usually ask you questions related to your case. Depositions usually last from 10 am to 5 pm per day with several short breaks and an hour lunch break. The deposition of the plaintiff in a wrongful termination case may last three or more days depending on the length of the employment relationship and the number of incidents at issue in the case.

In addition to the court reporter and videographer, several individuals may be present at the deposition, including an individual you can't stand the site of. Also, the attorney who takes your deposition may appear sarcastic and even rude toward you. The best deponents anticipate this circumstance and remain calm throughout the deposition. They try not to create the impression that they may be easily distracted and lose focus under unfriendly conditions.

When you learn of the date of your deposition, you should immediately request time off from your current employer so you can appear for the deposition and spend at least a day in advance of the deposition preparing with your attorney. You should also try to get a good night's rest before the deposition though you may be anxious. Avoid alcoholic beverages and other substances that may interfere with your memory and ability to speak clearly.

Many plaintiffs attempt to "tell their whole store" at their deposition. Such plaintiffs are better served by truthfully, accurately, simply, directly and succinctly answering the questions that are asked of them without trying to "score any points." In following this rule, plaintiffs will likely shorten their depositions and create a better, clearer record in advance of trial.

"Can I sue my boss for discriminating against me?"

You can sue your employer, but not your supervisor in most instances. Under the California cases Reno v. Baird (1998) 18 Cal.4th 640 and Jones v. Torrey Pines (2008) 42 Cal.4th 1158, individuals are generally not liable for discrimination and retaliation. There may be exceptions to this if your supervisor is the employer (example, sole proprietor) or if the discrimination was a result of a medical leave of absence you took. Under the Family Medical Leave Act, 29 U.S.C. § 2611, et seq., "employers" are defined to include "persons who act directly or indirectly in the interest of the employer." Under regulations interpreting the California Family Rights Act, it is unlawful for "any person" to discriminate against someone for taking a medical leave of absence.

Claims of harassment are treated differently than claims for discrimination and retaliation. Under the California Fair Employment and Housing Act (FEHA), if your supervisor harasses you based on your race, age, religion, disability or other protected characteristics he will be personally liable for such mistreatment.

"Won't a jury award me a more money if I don't find another job after the discriminatory firing?"

The short answer is "no." Although a jury can award lost wages to a victim of workplace discrimination, it will can award such lost wages that could not be avoided by making a reasonable effort to find comparable employment. A court can deny lost wages to a discrimination victim who does not make such an effort when the defendant can prove that comparable jobs were available. A comparison can be drawn between with your claim for emotional distress. If you suffered a psychological injury such as depression or post traumatic stress disorder (PTSD) as a result of a discrimination at work, you should immediately seek treatment from a physician or mental health professional. If you don't, the defendant may argue at trial that you could have alleviated your own suffering or, worse, that your suffering is feigned. This should be no surprise. This is common sense. So, if you're sitting around at home watching day-time television just waiting for your day in court, you're probably not doing your discrimination lawsuit any favors. If you need mental health treatment, go get it. If you need an income, go get a job.

"I was discriminated against today! What should I do first?"

If someone discriminated against you at work today, there are several steps you might take. The first step you should take is to consult with an employee rights attorney. Such consultations are confidential and may be free of charge depending on the attorney's practice. None of the information that follows should be relied upon without speaking about your case in person with such an attorney. After experiencing discrimination, you should also immediately consider documenting the discriminatory incident to preserve your recollection of what happened. Be sure to note the names of any individuals involved and witnesses to this discrimination.

You should also consider notifying your manager or a company human resources office of the discrimination to give the company any opportunity to resolve the problem. An employer may argue that a failure to complain of the wrongdoing at the time it occurred prevented the employer from knowing about it and doing anything to stop it. Further, the employer may argue that your failure to complain at the time the discrimination took place proves there was no discrimination.

You should also stay mindful of your time limit to raise a claim of discrimination in court. In most cases, you have one year from the date that the discriminatory act took place within which you can initiate a discrimination case. Before suing for discrimination in a California superior court, you must generally make a complaint of discrimination with the Department of Fair Employment and Housing (DFEH), a government agency charged with investigating claims of discrimination. The DFEH may investigate your claim of discrimination. If you are an employee of the State or federal government, you should make a complaint to the Equal Employment Opportunity Commission (EEOC), the federal agency charged with investigating complaints of discrimination. You have only 90 days in most instances to make such a complaint to the EEOC. I recommend you hire an attorney to prepare yoru complaint to the DFEH or EEOC. Whether you file your complaint with the DFEH or the EEOC, the agency will eventually provide you with written notice of your right to sue the company where the discrimination took place. Only after receiving such a notice can you raises most discrimination claims in a California superior or federal court. Once you receive the notice, you have a limited period of time to file your discrimination lawsuit in court. The EEOC generally provides 6 months to sue, while the DFEH grants a full year.