Orange County Employment Lawyers Blog

Justice Department Sues Nonprofit for Firing Army Reservist

March 10, 2018 | by Nassiri Law

While the Army is preparing dedicated men and women to be brave and strong and defend our country, it does not prepare them for one terrible challenge no one wants to face: losing their job. Even worse is when military status discrimination is suspected to be the cause of the dismissal.

This brings us to Austin, Texas, home of a nonprofit technology company currently being sued on allegations it wrongfully fired an Army Reservist in 2016 shortly after he returned from fulfilling military obligations as a result of him completing those duties. The U.S. Justice Department, who filed the lawsuit jointly with the U.S. Attorney’s Office for the Western District of Texas, says this is in direct violation of the Uniformed Services Employment and Reemployment Rights Act. This act, U.S. Code, Chapter 43, Part III, Title 38, states that “a person who … has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.”

The employee was a lieutenant colonel who had served in the Armed Forces for 22 years. The lawsuit, filed in U.S. District Court, Western District of Texas, Austin Division, is seeking an amount equal to lost wages and benefits for plaintiff.

Honoring Officers Who Stand Up Against Sexual Harassment and Discrimination

March 7, 2018 | by Nassiri Law

In a climate where claims of sexual harassment are continually coming to the surface and stories of police wrongdoing are constantly in the news, it is refreshing to see people honored who have fought to protect their rights and maintain their values.

The Asbury Park-Neptune Chapter of NAACP in New Jersey recently honored two female members of the local police officers who twice filed lawsuits as a result of sexual harassment and race discrimination they allege was taking place in their police department, according to App. Long before the New York Times‘ Harvey Weinsten expose or the popularity of #MeToo on social media, these two women were standing up when it would have been so much easier to buckle under the pressure.

Their story begins in 2013 when the two reported repeated sexual harassment and discrimination. One of the plaintiffs claim a lewd magnet was stuck to her car and in a separate instance a crass message was place on her car, a vehicle she used to visit the local high school. She also alleges that she was repeatedly not given the resources she needed to properly serve the high school, such as active shooter training and access to a tactical vehicle, both of which were given to a male resource officer for the school. Plaintiffs allege in the lawsuit instances of inappropriate conversations about pornography and personal sex lives, and crude gestures.

Board Vacates Franchise Labor Law Decision

March 4, 2018 | by Nassiri Law

In a surprise move, the National Labor Relations Board reversed its own recent stance on the “joint employer rule” that determines the standard for unions and workers to hold companies accountable for the actions of contractors and franchisees. The Obama-era joint employer rule made it easier for workers and unions. A December 2017 decision by the labor board under Trump reversed that. But late last month, the board has ruled that a conflict of interest nullifies the December ruling – meaning workers will once again have an easier time holding employers accountable (for now).

The board determined one of the members had a conflict of interest. The December ruling had indicated franchisors could only be considered a “joint employer” to a franchisee when there is evidence the franchisor exercised direct control over workers. It was an about-face from the 2015 ruling that empowered workers to pursue claim against or seek collective bargaining with major corporations that may not actually sign their paychecks. It’s not necessary to show direct control under this standard.

Major franchise owners, like McDonald’s, have a lot at stake in this decision. These companies prefer to insulate themselves from responsibility once a franchisee takes over by limiting their own liability for a franchisee’s alleged labor law violations.

Sexual Orientation Protected by Title VII, Court Says

March 1, 2018 | by Nassiri Law

The intent of Title VII of the Civil Rights Act of 1964, to protect workers from employer discrimination, is alive and well as courts continue to use this more than 50-year-old statute to defend citizens who are unjustly targeted by their employer for their sex, national origin, race, color, or religion. And thanks to a skydiving instructor and a ruling by the 2nd U.S. Circuit Court of Appeals, sexual orientation is becoming more recognized as a status that falls under these protections.

Sexual orientation discrimination is a form of sex discrimination, the court recently determined in its 10-3 opinion, which mirrors a previous ruling by the 7th Circuit Court of Appeals last year, according to CNN. The opinion affirms the conclusion of the 7th Circuit as well as EEOC Decision No. 0120133080 that the employee’s sex is being taken into consideration in relation to the person they are attracted to. In other words, if a male employee was attracted to a man and a female employee is attracted to that same man, punishing the male employee would be discrimination based on his sex, all other considerations remaining the same. The ruling further outlines “associational discrimination,” as a form of sex discrimination because the “employer took his or her sex into account by treating him or her differently for associating with a person of the same sex.”

This flings opens the door for others in those circuits to file lawsuits for sexual orientation discrimination. The 2nd Circuit Court of Appeals covers Connecticut, New York and Vermont, while the 7th Circuit Court of Appeals includes areas of Indiana, Illinois, and Wisconsin. Continue Reading ›

Bill Seeks to Protect Music Professionals and Other Contractors

February 26, 2018 | by Nassiri Law

For months, Hollywood has been shaken by accusations of widespread harassment and sexual misconduct in the film industry. Those claims inspired people all over the country to come forward with their own stories. Now all eyes are shifting to the music industry, starting with Tennessee.

There, lawmakers have introduced a bill in hopes of closing up a loophole that has left contract workers vulnerable to harassment, according to NPR. Contract workers are left without the same protections employees receive. And since many entertainers and music professionals fall under this category, it has left the music industry particularly exposed.

HB 1984 defines an independent contractor and extends employee harassment protections, making it landmark for workers’ rights if it passes. “It is a discriminatory practice for an employer to harass an employee, an applicant, or a person providing services pursuant to a contract because of the employee’s, applicant’s, or person’s sex,” according to the bill. Continue Reading ›

Weinstein Co. Must Answer Sexual Harassment Accusations in Court

February 23, 2018 | by Nassiri Law

After allegations of misconduct against Harvey Weinstein revealed a culture of widespread sexual harassment and assault, the film producer is finally facing concrete ramifications. New York Attorney General’s Office recently filed a lawsuit in New York State Supreme Court, New York County against Weinstein Co., Harvey Weinstein, and Robert Weinstein to “remedy a years-long gender-based hostile work environment.”

The lawsuit (The People of the State of New York v. The Weinstein Company LLC, et al) comes after months of mostly symbolic punishments against the producer. He was fired from Weinstein Co. and resigned from the board in October (while continuing to profit off his 23 percent share in the company) and is said to have received sex addiction rehabilitation treatment since then.

N.Y. Attorney General Eric Schneiderman began building the case after New York Times broke the story last year detailing reports of harassment, assault, and rape allegedly taking place inside Weinstein Co. as well as payouts meant to silence accusers. In addition to claims made against Harvey Weinstein, the lawsuit targets senior managers, who stand accused of ignoring complaints and enabling continued abuse. The attorney general’s investigation included an in-depth examination of e-mails and company records, which allegedly reveal gender discrimination, hostile work environment, harassment, quid pro quo arrangements, and discrimination, according to a report from Variety. Continue Reading ›

San Diego Pride Accused of Wrongful Termination, Discrimination

February 21, 2018 | by Nassiri Law

Even within organizations whose mission is to protect the rights of others, it is possible for questionable practices that infringe on rights to taint the reputation and culture of the group. San Diego Lesbian, Gay, Bisexual, Transgender Pride has been caught up in accusations and internal tensions since the dismissal of its executive director in August 2016. Now the former employee is suing the group for wrongful termination as well as age discrimination and defamation of character.

The former executive director recently filed the lawsuit in Superior Court of California, County of San Diego claiming his firing by the group’s board was personal and not based on performance or any sort of wrongdoing, according to a report from San Diego Reader. In fact, other group members and staffers were so incensed by the dismissal they demanded plaintiff be reinstated, protesting the decision at one of the organization’s monthly meetings shortly after the firing.

Particularly noteworthy to those who defended plaintiff at the time of the dismissal was the booming success of San Diego Pride under his leadership. Many credit him for the record-breaking year the group had in 2016, according to NBC San Diego, including an influx of grants and popular events. He was seen as a rising star in the organization since he joined in 2013, first as an independent contractor, quickly escalating to general manager and then executive director the next year. The board remained vague on the sudden dismissal, citing a desire to “go in a different direction,” causing more unrest among group members upset over the lack of transparency. Continue Reading ›

GrubHub Ruling Will Drive Future of Gig Economy

February 18, 2018 | by Nassiri Law

With the fast-paced growth of the gig economy, the line between independent contractors and employees has become more and more blurred. This has led to employee misclassification lawsuits filed by workers, claiming employers have taken advantage of their independent contractor status.

Those lawsuits could have a more clear outcome after U.S. District Court for the California Northern District filed a decision in a lawsuit against GrubHub Inc., according to Los Angeles Times. U.S. Magistrate Judge Jacqueline Scott Corley Judge ruled GrubHub’s drivers are independent contractors and should not be classified as employees, and therefore will not receive the perks that come with that identifier.

Maintaining a workforce primarily made up of independent contractors is at the heart of the gig economy. Services like Uber, Lyft, Grub, Postmates, and others will often identify their companies as services that connect customers with contractors, rather than the providers of those services. That way they can work around supporting a staff of employees, and reap the benefits of massive cost reductions. Meanwhile, drivers and delivery people are beholden to the companies they contract for while being burdened with costs associated with the work they do without reimbursement. Continue Reading ›

Tipped Employees Might Have to Share Tips Under Proposed Rule

February 15, 2018 | by Nassiri Law

Anyone who has ever waited tables knows how valuable a good tip is. It brings the wages of tipped employees up, makes it possible for restaurant owners to keep food prices reasonable, and gives workers an incentive to work during extra busy and stressful shifts throughout the week.

U.S. Department of Labor defines tipped employees as those who regularly receive more than $30 a month in tips. Such employees, depending on the state, can be paid a minimum of $2.13 per hour, as opposed to the traditional federal minimum wage of $7.25. The tips that are used to bring tipped employees up to minimum wage are known as a tip credit. If the employee does not make enough in tips to meet the federal minimum wage standard, the employer must make up the difference, according to 29 U.S. Code § 203 (m).

California, however, is a bit different in that the state requires employers to pay full minimum wage before tips. The state’s minimum wage is also higher than national, ranging from $10.50 (for employers with fewer than 26 employees) to $11 (26 or more employees). Continue Reading ›

Washington Supreme Court: Firefighter Axed for Religious Messages Can Sue

February 14, 2018 | by Nassiri Law

Many companies have employment policies in place to help separate people’s personal lives from the workplace. Limiting personal calls, restricting social media use on company computers, forbidding offensive materials from being displayed in work spaces and not allowing company resources to be used for personal gain or to spread personal messages — all of these are common practices. It is permissible and necessary for offices to limit such activities to keep workers focused, reduce wasteful spending, and prevent a hostile work environment.

However, problems can arise when managers selectively choose who can and cannot engage in such activities, with only certain people being punished. At best, a company can cause resentment among employees by singling out individuals for actions that are also being committed by others. At worst, they could find themselves in court for violating the First Amendment.

This is in line with the perspective of the Washington Supreme Court, where justices recently filed an opinion in the case against the fire department in eastern Washington. The court determined that a former fire captain, who was terminated after sending religious messages using a company forum, was denied his First Amendment rights to free speech and can sue for damages. Continue Reading ›