Friday, August 2, 2013

Wade v. Ports America Management Corporation

Labor arbitration pursuant to a collective bargaining agreement has preclusive effect on racial discrimination complaint and other common law wrongs where arbitration encompassed the claim.
     Wade v. Ports America Management Corporation - filed August 2, 2013, Second District, Div. Four
     Cite as B238224

Friday, July 5, 2013

Mendiola v. CPS Security Solutions, Inc.

The "trailer guards" who patrol construction sites by day and must remain at those sites overnight to respond to emergencies--but are otherwise permitted to sleep during those hours--and who are onsite 16 hours per day during the week and 24 hours per day on the weekend must be compensated for the nighttime hours spent on the jobsites during the week. The employer is permitted to deduct eight hours for sleep time on weekend days.
     Mendiola v. CPS Security Solutions, Inc. - filed July 3, 2013, Second District, Div. Four

     Cite as B240519

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Tuesday, June 25, 2013

Leos v. Darden Restaurants, Inc.

Agreement requiring employees to arbitrate disputes with employer was not substantively unconscionable where employer’s right to amend the agreement was limited by the phrase "as required by law," limitations on discovery were not per se unreasonable, requirement that employee pay the cost if employee ordered a transcript was no more burdensome than if the case was litigated, and provisional remedy language was neither overly harsh nor so one-sided as to shock the conscience. Employees who did not sue on behalf of a class lacked standing to argue that agreement’s ban on class-wide arbitration violated the National Labor Relations Act, and if they had standing, the argument would fail on its merits.

     Leos v. Darden Restaurants, Inc. - filed June 4, 2013, publication ordered June 24, 2013, Second District, Div. One

     Cite as B241630

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Monday, June 24, 2013

University of Texas Southwestern Medical Center v. Nassar

Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated for status-based discrimination claims in 42 U.S.C. Sec. 2000e–2(m).
University of Texas Southwestern Medical Center v. Nassar - filed June 24, 2013

     Cite as 12-484_o759

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Vance v. Ball State University

An employee is a "supervisor" for purposes of vicarious liability under Title VII only if he or she is empowered by the employer to take tangible employment actions against the victim.
Vance v. Ball State University - filed June 24, 2013
     Cite as 11-556_11o2

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Wednesday, June 5, 2013

Grace v. Beaumont Unified School District

School district complied with statutory requirement that probationary employee be notified by March 15 that district would not offer her a contract for the following school year. It gave actual notice by adopting a resolution to that effect, identifying plaintiff by employee number, at a meeting at which she was present. Any defect in the form of notice that plaintiff would not be rehired was waived when plaintiff declined the opportunity to meet personally with a school official, whom she knew intended to serve her with such notice, and insisted that such notice be served by certified mail, which it was.
     Grace v. Beaumont Unified School District - filed June 4, 2013, Fourth District, Div. Two

     Cite as E054801

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Tuesday, June 4, 2013

Harris v. Amgen, Inc.

ERISA plan terms did not require or encourage defendant fiduciaries to invest primarily in employer stock. The presumption of prudence articulated in Quan v. Computer Sciences Corp., 623 F.3d 870 (9th Cir. 2010) did not apply to a claim that defendants acted imprudently and violated their duty of care by continuing to provide employer’s common stock as an investment alternative. They knew or should have known that the stock was being sold at an artificially inflated price due to material omissions and misrepresentations, as well as illegal sales. Fiduciaries’ duties of disclosure to ERISA plan participants are no less extensive than their duties to the general public under the securities laws. Employer is an ERISA fiduciary in the absence of a delegation of exclusive authority over the plan. District court erred in dismissing employer as a non-fiduciary merely based on delegation of authority to a "fiduciary committee". Delegation neither provided exclusive authority to the committee, nor precluded employer from acting on its own behalf.
     Harris v. Amgen, Inc. - filed June 4, 2013

     Cite as 10-56014

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Hillman v. Maretta

State statute purporting to create a cause of action in favor of a surviving spouse, against a previous spouse who received benefits under a contract based on an unrevoked beneficiary designation made during the previous marriage, was preempted to extent it conflicted with Federal Employees’ Group Life Insurance Act of 1954--which gives the employee the absolute right to make or revoke a beneficiary designation. This does not provide for automatic revocation where the beneficiary is the employee’s spouse and the marriage is later dissolved, and preempts states from revoking such designations by operation of law.
     Hillman v. Maretta - filed June 3, 2013

     Cite as 11-1221_7l48

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Wednesday, May 29, 2013

Bluford v. Safeway Stores, Inc

-Labor and Employment Law-

In action by former employee claiming defendant violated statutory and regulatory laws requiring it to provide its employees with paid rest periods, earned meal periods, and sufficiently itemized wage statements, denial of class certification was supported by insufficient evidence, as common issues predominated over individual issues, and plaintiff in fact alleged a common injury resulting from the wage statements.


Bluford v. Safeway Stores, Inc. - filed May 8, 2013, publication ordered May 24, 2013, Third District

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Tuesday, March 26, 2013

Justice Department settles racial discrimination case against Meridian school district

Feds alleged that black students faced stiffer punishment than white students for similar offenses
 The U.S. Justice Department said Friday that it has reached a deal with a Mississippi school district to end discriminatory disciplinary practices in which black students face harsher punishment than whites for similar misbehavior.
The agreement comes after a lengthy federal investigation that found that black public school students in Meridian are five times more likely than whites to be suspended from classes and often got longer suspensions for comparable misbehavior.
Jocelyn Samuels, a deputy assistant attorney general, said during a news conference Friday that black students in the Meridian Public School District routinely receive more severe punishments than whites in most categories of misbehavior other than weapons and drugs violations. She commended the district for its cooperation with the Justice Department.
About 86 percent of Meridian’s 6,000 public school students are black. The district’s superintendent, Alvin Taylor, is black and there is a mixture of white and black principals, Samuels said.
Taylor did not immediately respond to a message Friday.
Samuels stressed that disciplinary problems and disparities are not unique to the city of Meridian or Mississippi and she hopes the agreement can be a guide to other school districts. Similar problems are most likely to happen at schools that have implemented harsh disciplinary policies, she said.
“Unfortunately, today across the country, students are being pulled off the path to success by harsh disciplinary policies that are excluding students from school for minor disciplinary infractions,” she said. “Students are being suspended, expelled or even arrested for school uniform violations, talking back to teachers or laughing in class.”
The agreement, known as a consent decree, calls for the district to end discriminatory punishment practices with the provisions that should be fully implemented by the end of the 2016-2017 school year.
The agreement must be approved by a federal judge in Mississippi. Among the provisions in the 44-page agreement, the school would have to limit the use of disciplinary action that removes students from classrooms and ensure that consequences are fair and consistent for all students.
The agreement would amend a consent decree enforced by the U.S. as part of 1965 desegregation lawsuit against the district.
Samuels said there about 200 similar longstanding lawsuits involving districts around the country and the Justice Department reviews their disciplinary policies and practices.
The agreement is separate from a Justice Department lawsuit against the city of Meridian, Lauderdale County, the two Lauderdale County Youth Court judges and the Mississippi Department of Human Services.
That lawsuit, which is pending in U.S. District Court in Jackson, alleges that there was “school-to-prison pipeline” in Meridian that locks up students for minor infractions like flatulence or wearing the wrong color socks.
The lawsuit claims Meridian police routinely arrested students without determining whether there was probable cause when a school wanted to press charges, and the students were routinely jailed.
Once arrested, the students end up on probation, sometimes without proper legal representation, according to the lawsuit. If the students are on probation, future school problems could be considered a violation that requires them to serve the suspension incarcerated in the juvenile detention center.
That means students can be incarcerated for “dress code infractions such as wearing the wrong color socks or undershirt, or for having shirts untucked; tardies; flatulence in class; using vulgar language; yelling at teachers; and going to the bathroom or leaving the classroom without permission.”

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Compton v. Superior Court (American Management Services, LLC)

U.S. Supreme Court ruling in AT&T Mobility, LLC v. Concepcion, ___ U.S. ___, 131 S.Ct. 1740 (2011), which held that Federal Arbitration Act preempts California public policy disfavoring enforcement of agreements barring class-wide arbitration, does not preempt policy against enforcement of agreements that are so one-sided as to be unconscionable. Agreement compelling arbitration, and barring classwide or joint arbitration proceedings absent consent of all parties, was one-sided and unconscionable where it carved out unfair competition and trade secrets claims, and imposed a shortened limitations period for arbitrable claims while allowing carved-out claims--which were subject to a three- or four-year limitations period--to be litigated.
     Compton v. Superior Court (American Management Services, LLC) - filed March 19, 2013, Second District, Div. Eight
     Cite as B236669

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Monday, March 25, 2013

Dailey v. Sears, Roebuck and Co

Trial court did not abuse its discretion in denying certification of class action by employee of large retailer, which allegedly violated California's wage and hour laws, including those governing overtime pay and rest and meal breaks, with respect to managers and assistant managers, on ground that plaintiff’s theory of liability — i.e., that defendant acted in a uniform manner toward the proposed class members, resulting in their widespread misclassification as exempt employees — is not amenable to proof on a classwide basis.
     Dailey v. Sears, Roebuck and Co. - filed March 20, 2013, Fourth District, Div. One
     Cite as D061055

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Thursday, March 21, 2013

Tibble v. Edison International

Under the Employee Retirement Income Security Act’s six-year statute of limitations, district court correctly measured the timeliness of claims alleging imprudence in plan design from when the decision to include those investments in the plan was initially made. To extent that beneficiaries’ claims hinged on infirmities in the selection process for investments, mere notification that retail funds were in the plan menu fell short of providing "actual knowledge of the breach or violation," so the six-year statute, not the three-year limitation of Sec. 413(2), applied. Department of Labor interpretation limiting scope of ERISA Sec. 404(c)--a safe harbor that can apply to a pension plan that "provides for individual accounts and permits a participant or beneficiary to exercise control over the assets in his account"--as applying only when the breach or loss is the "direct and necessary result" of the action by the beneficiary is entitled to judicial deference. Revenue sharing between mutual funds and administrative service provider did not violate ERISA where such sharing was permitted under a reasonable interpretation of plan.
     Tibble v. Edison International - filed March 21, 2013
     Cite as 10-56406

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Wednesday, March 20, 2013

Forsyth, Ga., Pays in Employment Discrimination Suit

The Telegraph

A former Forsyth Electrical Department lineman will receive $160,000 as part of a settlement with the city of Forsyth in a federal employment discrimination and retaliation lawsuit.
Windell Rutherford started work with the city in 1998 and was promoted to lead lineman in 2002.
He became disabled after an on-the job injury in June 2006.
In December 2006, Rutherford was instructed to come back to work, but the city refused to return him to his job as lead lineman when he asked for accommodations that would have allowed him to do the job, according to the lawsuit filed last August in U.S. District Court for the Middle District of Georgia.
Rutherford contended the electrical superintendant twice said he didn’t want him in his department. Once, he said it was because of Rutherford’s injury and disability. A second time he said it was because “all linemen are white,” according to the lawsuit. Rutherford is black.
Initially, Rutherford was placed in a light duty position in the Public Works Department without a pay cut.
Rutherford alleged the Public Works director and city administrator tried to force him to sign a form in April 2010 saying he would accept a demotion to Public Works clerk and a pay cut of more than 50 percent.
The city had allowed a white lineman to stay on the job with medical restrictions. Rutherford accepted the demotion in lieu of being fired, according to the lawsuit.
He applied for a transfer to an open lineman position later that year, but the job was given to two less qualified, non-disabled white men, Rutherford contended.
In May 2012, raises were proposed for Rutherford and three other employees. His raise was not approved because he had filed a discrimination complaint with the U.S. Equal Employment Opportunity Commission, according to the court filing.
Rutherford initially sought to be reinstated to his lead lineman job and $22.50-per-hour salary or damages for future lost wages and benefits. He also sought other monetary damages.
Forsyth and Rutherford settled the case March 5, according to court records.
City Attorney Bobby Melton said Rutherford will be placed in an inventory clerk position. He will be reimbursed for his portion of mediation expenses, in addition to the $160,000.
Rutherford’s Atlanta lawyer declined comment Tuesday, saying the settlement was confidential.

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Tuesday, March 19, 2013

Ogundare v. Department of Industrial Relations, Division of Labor Standards Enforcement

Debarment decisions of the Division of Labor Standards Enforcement, which prohibit a contractor from bidding on public construction contracts for a specified period of time as a sanction for failure to pay prevailing wages with intent to defraud, do not implicate a vested right and are judicially reviewed under the substantial evidence test. Unexplained discrepancy between employee’s testimony--that he was paid $15 per hour for 61 hours as confirmed by his weekly paycheck--and the certified payroll records for that same week--showing that he was paid prevailing wages of $36.10 per hour and only worked 25 hours that week--constituted substantial evidence his employer failed to pay prevailing wages with intent to defraud.
     Ogundare v. Department of Industrial Relations, Division of Labor Standards Enforcement - filed February 27, 2013, publication ordered March 18, 2013, Fifth District
     Cite as F061162

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Richardson v. City and County of San Francisco

Government Code Sec. 3304(d)(2)(A), a provision of the Public Safety Officer’s Procedural Bill of Rights Act tolling the limitations period for the bringing of disciplinary action when the officer is under criminal investigation, does not require that any such investigation be "active and actual," so tolling continued between date investigating agency advised prosecutors of its findings and date of decision not to prosecute. Exclusionary rule does not apply to police disciplinary proceedings under the Bill of Rights Act. Officer was properly terminated for "un-officerlike conduct," including lack of cooperation with police search of her home, regardless of the legality of the search. City attorney’s office, which served as legal adviser to the police commission that terminated officer’s employment and as defense counsel in officer’s suit against city, did not have a disqualifying conflict of interest where substantial evidence, set forth in declaration by the commission legal adviser, established that the legal adviser had no contact regarding officer with the attorneys defending the lawsuit.

 Richardson v. City and County of San Francisco (City and County of San Francisco) - filed February 13, 2013, publication ordered March 15, 2013, First District, Div. Two
     Cite as A133300

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Former UT track coach files discrimination complaints

Kirk Bohls

Former Texas women’s track coach Bev Kearney has filed gender and race discrimination complaints with the Equal Employment Opportunity Commission and the Texas Workforce Commission charging her former employer with using a double standard.
The complaints are a prelude to a lawsuit, her attorney said Saturday.
Kearney, who won six national championships as a coach at Texas and who is black, resigned Jan. 5 after the disclosure that she had an inappropriate, intimate relationship with an athlete in her program in 2002.
Derek Howard, who represents Kearney, alleges that his client has been the victim of a double standard at the university. He claims he has knowledge of “in excess of 10” other instances of inappropriate relationships at Texas and said some of them are ongoing and others reach back a decade.
“I think the university turns a blind eye to these inappropriate relationships,” Howard told the Statesman. He offered no evidence of such relationships or details about the behaviors, and he declined to say whether they involved athletic department members.
In a statement released Saturday, Patti Ohlendorf, UT’s vice president for legal affairs, said, “The University reviews allegations and reports of unprofessional relationships on a case-by-case basis and did so after the (Kearney) relationship was reported to the Athletics administration last fall.”
Ohlendorf said Kearney and her lawyers were advised in late December that the university “was prepared to begin steps to terminate her employment because she had had a long-term, inappropriate relationship with a former student-athlete while the student-athlete was a member of her team.”
Ohlendorf said Kearney was offered an opportunity to “provide her side of the story and reasons that she should not be terminated.” She also was told she would have the opportunity to appeal any decision to terminate.
According to the UT statement Saturday, Kearney asked for a short time to consider the options and then resigned the next week.
Ohlendorf’s statement said, “Coach Kearney’s formal allegations of discrimination will be reviewed thoroughly and responded to according to EEOC and Texas Workforce Commission procedures.”
Howard said he filed the gender and race discrimination complaint with the federal and state agencies last Tuesday. Howard said his complaint will reference only Texas co-offensive coordinator Major Applewhite, who is white and who admitted to an inappropriate consensual relationship with a female student trainer in 2009.
The Applewhite incident came to light within a month of its occurrence. He was reprimanded in writing, and his salary was frozen for a specific period.
Howard said he met once with attorneys for Texas and the UT System for about an hour in early February, and he said he has not specifically tried to reach a financial settlement with Texas. But he did say he has hired an economist to calculate the damages and told him to be available to testify at a trial. Kearney was set to receive a raise and a contract extension when she was first put on administrative leave.
Asked what Kearney might be seeking, Howard said, “Our damages are very substantial.”
Howard said he has in general terms “informed UT that we have information about these relationships, and we’ve asked them to investigate. Have they? We don’t know.”
Howard said the EEOC and the Texas Workforce Commission are expected to investigate Kearney’s complaint during the next 180 days. After that, Howard said he will file litigation.
Open records requests by several newspapers asking for information about similar relationships between Texas employees and ensuing investigations turned up no disciplinary action taken against anyone.
“That tells me the double standard is well understood in the culture of life that is the University of Texas,” Howard said. “I find it preposterous from what we understand that these types of inappropriate relationships are apparently very common at UT-Austin, yet no one ever self-reports, and no one is ever reprimanded for having these relationships. There doesn’t appear to have been any investigations.”

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Discrimination Suit Filed Against Pittsburgh ISD

Pittsburgh Post-Gazette

Amy McConnell

Former Pittsburgh Public School District safety chief Robert Fadzen filed a federal lawsuit against the district today, alleging discrimination against him because of his age and disability.
Mr. Fadzen is alleging violations of the Age Discrimination in Employment Act of 1967, and the Civil Rights acts of 1964 and 1991, and has requested a jury trial, reinstatement to his previous position or a comparable position, and compensation for lost wages, commissions and benefits. Mr. Fadzen worked for the district from 1994 until August 2012, when he was fired for what district officials say was an improper traffic stop.
Mr. Fadzen filed age and disability discrimination charges against the district with the Equal Employment Opportunity Commission and Pennsylvania Human Relations Commission in March 2012.
The traffic stop was not the real reason for his dismissal, Mr. Fadzen alleges in his lawsuit, which was filed in the U.S. District Court for the Western District of Pennsylvania. Instead, it was the district's desire to hire a younger and healthier schools safety chief that prompted the investigation into the traffic stop that ultimately led to his ouster, according to the lawsuit. Prior to the investigation, the lawsuit states, Mr. Fadzen "had been subjected to multiple comments regarding his health, the medical devices prescribed to him as a result of his medical conditions, and his ability to perform his job functions" from former Pittsburgh Schools Superintendent Mark Roosevelt.
District officials could not be reached for comment.

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Wednesday, March 13, 2013

NLRB To Seek Supreme Court Review in Noel Canning v. NLRB

Office of Public Affairs

The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB, in which the U.S. Court of Appeals for the DC Circuit held that the January 4, 2012 recess appointments of three members to the Board were invalid.  The Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the United States Supreme Court for review of that decision.  The petition for certiorari is due on April 25, 2013.

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Settlement reached in Vicksburg mayor sexual harassment lawsuit

Associated Press

NATCHEZ — A sexual harassment lawsuit against the city of Vicksburg and Mayor Paul Winfield has been settled.
A court filing said the settlement was reached Monday after a hearing in U.S. District Court in Natchez, but he terms of the deal have not been disclosed. The parties were directed to submit to the judge an agreed order to dismiss the suit.
The Vicksburg Post reports that attorneys in the case met behind closed doors for six hours Monday with Magistrate Michael T. Parker before the deal was announced.
The lawsuit was filed Feb. 1, 2012, by former city employee Kenya Burks. The lawsuit alleged that Winfield made unwanted sexual advances after Burks ended a consensual sexual relationship.
"The case is resolved. So, it's over," Nick Norris, one of Burks' attorneys, said at the courthouse late Monday.
Attorneys Vikki J. Taylor and Robert Gibbs appeared for Winfield, who did not attend the settlement conference. They did not comment on the terms of the settlement as they left the courthouse.
Burks, 39, Winfield's chief of staff from July 2009 to April 2011, filed suit against the city a year ago.
She claimed she was subjected to a hostile work environment and retaliation after a consensual affair soured. Later filings added Winfield as a defendant and asked for $1.5 million in damages.
Winfield, also 39, denied claims of sexual relations.
Winfield filed for a second term as mayor Feb. 15. Five days later, he was arrested on federal bribery charges. He was released on an unsecured $10,000 bond, and the charge will move to a federal grand jury.
The criminal complaint says a confidential FBI informant called Winfield on July 17, 2012, to discuss "pre-event disaster contracts" with the city.
It says the two met at a Jackson restaurant the next day, and the informant asked Winfield what it would take to get the contract.
"Winfield responded 'Ten' and held up 10 fingers, signifying $10,000," the complaint says.
Winfield agreed to take half the money up front and the rest after the contract was awarded, according to the complaint. The complaint says the source paid Winfield $5,000 in hundred dollar bills that had been provided by the FBI.
In August, Winfield called the informant and said he owed $4,300 in taxes and was "in a bind," the complaint said. They later met in the parking lot of a McDonald's in Natchez, where the source gave Winfield another $2,000 and promised to give him the remaining $3,000 when the contract was awarded, according to the complaint.

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Tuesday, March 12, 2013

Alberda v. Board of Retirement of Fresno County Employees’ Retirement Association

On judicial review of retirement board’s denial of application for a service-connected disability retirement, trial court must undertake an independent determination of whether employee’s disability was service-connected. Trial court committed reversible error by denying writ on ground that substantial evidence supported hearing officer’s finding that disability was not service-connected.
     Alberda v. Board of Retirement of Fresno County Employees’ Retirement Association - filed February 20, 2013, publication ordered March 12, 2013, Fifth District
     Cite as 2013 S.O.S. 1198

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Lawrence Livermore National Labratory's Wrongful-Termination Lawsuit Moves Closer to Court

East Bay Express

John Geluardi

Five former employees who are suing Lawrence Livermore Laboratory for wrongful termination held a press conference on Thursday to tell their personal stories as their case moves closer to trial set for late next month.
The five former employees talked about the humiliation, shame, and frustration they experienced when they were part of a massive layoff of 440 lab employees, most of whom were over the age of forty, in 2008, shortly after Congress turned over management of the lab to a partnership led by San Francisco-based Bechtel Corp.

130 of the laid-off employees have filed suits against the lab. The first five employees to go to trial are Elaine Andrews, Marian Barraza, Mario Jimenez, Greg Olsen and James Torrice; their trail date is set for Feb. 27. All of the former employees are being represented by the law firm of Gwilliam, Ivary, Chiosso, Cavalli & Brewer.
When she was laid off, Barraza had worked at the lab for 38 years — since she was eighteen — as a purchasing specialist. She met her husband at the lab and her daughter is a current lab employee. She said it was devastating to be treated so poorly on the day of the layoff.
“We were given one hour to collect our things and go. We were followed everywhere by security guard. I wasn’t allowed to go to the bathroom by myself.” Barraza said. “I felt like a criminal. The only thing missing were the handcuffs.”
The University of California had managed Lawrence Livermore Laboratory since the early 1950s. But in 2006, the Department of Energy (DOE) began taking bids from private contractors to run the 790-acre research facility, which primarily ensures the safety, reliability, and safety of the country’s nuclear weapons.

In 2006, the DOE gave management of the lab to a partnership that still included the University of California, but was led by Bechtel. Within months of the 2008 transition, lab management announced the layoffs, claiming they were due to a budget shortfall of $280 million. The plaintiffs' lead attorney, Gary Gwilliam, claims the lab misrepresented the shortfall and that the lab used its budget deficit as a pretext to get rid of older employees who have higher salaries, larger medical costs, and are closer to collecting their pensions.
However, pretrial rulings have thus far not favored four of the five plaintiffs with regards to their claims of age discrimination. Superior Court Judge Robert Freedman ruled earlier this month that the plaintiffs will not be able to present a blanket case of age discrimination, and now only Barazza’s claim of age discrimination remains intact.
The judge also ruled that whether the lab misrepresented its budget shortfall in order to lay off employees isn;t particularly relevant. That ruling brings into question whether Gwilliam will be able to present the testimony of independent consultant Robert Civiak — a physicist and expert in nuclear weapons budgeting, policy and management — who claims the lab fabricated the budget shortfall of $280 million that supposedly necessitated the layoffs. Rather, Civiak wrote in his declaration, the lab had “sufficient funds to avoid any involuntary layoffs.”
Furthermore, Gwilliam claims the Bechtel-led partnership hasn't been able to fully introduce the efficiency that it claimed it could when it was vying for the lucrative government contract.
The lab’s public affairs office refused to comment on the case, but did issue a short statement about the judge’s ruling. “This decision removes two of the cornerstones of Mr. Gwilliam’s case as it moves through the court system,” the statement reads. “Mr. Gwilliam now must try 130 individual claims with a judge or a jury determining the merits of each of those claims.”
Gwilliam said it is a bit early for the lab to be making such a statement, and that there is a motion before the judge to amend his pretrial ruling based on a significant amount of information the lab has recently turned over to the plaintiffs.
Gwilliam said he remains confident about all of the cases of all 130 plaintiffs because the lab misrepresented its financial situation to get rid of mostly older employees. “Before the lab went private in 2008 there was never any layoffs at the lab,” Gwilliam said. “They have broken the rules, and as a government-funded operation, they should be setting an example, not breaking the rules.”

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Lawsuit alleges Sharon Stone forced maid to work with bad back

LA Times

A woman who worked as a maid for Sharon Stone has sued her, alleging the actress forced her perform physically strenuous tasks and then fired her after she sought to rest her injured back.
The complaint marks the second suit by a member of Stone's household staff in the last year.
The 10-page civil complaint filed Monday in Los Angeles County Superior Court by attorney Solomon E. Gresen on behalf of Angelica Castillo seeks unspecified damages.

According to the suit, Castillo  injured her back in June 2012, while grocery shopping for the actress, best known for her roles in such films as "Basic Instinct," "Total Recall" and "Casino."
Although Castillo's doctor instructed "a brief period of bed rest" and told her to avoid lifting heavy objects, the suit says, Stone ordered her to report to work the same day and continue to perform regular duties, including "lifting and moving heavy items as part of cleaning the residence."
Other employees who could have helped her in those duties were not allowed to do so, according to the suit. At one point, while Castillo was still in severe pain, the suit alleges Stone repeatedly yelled at her for performing her chores mores slowly and called her "crazy" and "stupid."
Castillo was fired by the actress last October after two years on the job.
In May, a former live-in housekeeper and nanny for Stone filed suit against the actress, alleging she was fired for accepting overtime pay and repeatedly subjected to derogatory comments about her Filipino heritage and religious beliefs. Erlinda T. Elemen alleged Stone made comments that equated being Filipino with being stupid. She said the actress told her not to speak in front of her children so they would "not talk like you."
The suit also alleged the award-winning actress repeatedly criticized Elemen’s "deeply held religious beliefs" and her frequent attendance at church, and once forbade her from reading the Bible in Stone’s house even though she lived at her residence.

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Monday, March 11, 2013

Missoula police detective's lawsuit alleges sex harassment by female officer


Gwen Florio

A Missoula police detective who investigates Internet sex crimes has filed a lawsuit alleging that the department’s highest-ranking female officer sexually harassed him by grabbing his rear end.
But Missoula City Attorney Jim Nugent said the state Human Rights Bureau has already denied the detective’s claim, and that the incident actually began when the detective flipped off the lieutenant.
The suit filed Wednesday by Detective Chris Shermer names Lt. Sandy Kosena, as well as the Missoula Police Department, Chief Mark Muir and Capt. Chris Odlin.
Shermer’s complaint alleges that on April 30, 2012, Kosena – his supervisor – “came up behind him and grabbed him on the left buttock with her left hand, placed her pinkie finger in between Chris Shermer’s buttocks, leaned in very close to his back and then whispered a sexual innuendo in his ear.”
Shermer did not respond to a message left on his work phone, and a message left late Wednesday afternoon with his attorney, Cory Gangle, was not returned. Muir was out of town Wednesday, and both Kosena and Deputy Chief Mike Brady referred calls to Nugent.
“It was all precipitated by the conduct of Chris Shermer, but they don’t mention that” in the lawsuit, Nugent said.
The alleged incident took place just one day before the U.S. Department of Justice announced a first-of-its-kind investigation into how three agencies – the Missoula Police Department, the Missoula County Attorney’s Office and the University of Montana campus police – handle reports of sexual assault. That investigation is ongoing.
A civilian employee was present at the time of the incident, according to the lawsuit, which also describes Shermer as being “shocked and perplexed ... humiliated, embarrassed ... angry and frustrated.”
The suit alleges that Kosena admitted the contact, but was disciplined only lightly and the matter was closed.
“Chief Mark Muir did not communicate with Chris Shermer about this incident, he did (sic) reassure Chris Shermer that it would not happen again, and that his complaint was being taken seriously, he did not ensure Chris Shermer that he would be able to work in a safe work environment, he did not ensure that Chris Shermer would be able to work in a non-hostile work environment, he did not advocate for Chris Shermer and he did not look at Lt. Sandy Kosena’s as a criminal matter ...,” it says.
Kosena’s alleged actions “actually constitute a criminal assault as well as a civil assault,” it says.
The suit also takes the police department to task for allegedly “sweeping the matter under the rug,” and Odlin because he allegedly “openly ridiculed Shermer for making this complaint to his peers.” Odlin, according to the suit, “was admonished by his supervisors not to engage in such behavior again.”
Nugent said the incident actually began earlier in the day, when Shermer, who was driving a police car, saw Kosena and another officer downtown and allegedly gave Kosena the finger. The other officer didn’t see him flipping her off, Nugent said.
When Kosena saw Shermer in the station afterward, “she apparently came up to him and said something to the effect that she wasn’t interested in taking him up on his offer. He claimed he was flipping off the male officer,” Nugent said.
The Bureau of Human Rights found in December that there was not enough evidence to support Shermer’s claim of sexual harassment, Nugent said.
Shermer is best known for his work nabbing predators who go online to solicit sex from underage youngsters, or enticing them to make child pornography. As part of Montana’s Internet Crimes Against Children task force, he often assumes the persona of a 14-year-old girl in chatting online. That program is funded by grant money that runs out in September.
Kosena is the first woman in the police department to hold the rank of lieutenant.
Shermer’s suit says Kosena’s alleged actions violate a police department policy, instituted March 15, 2012, on sexual assault that refers to such incidents as crimes. But the department instead handled his allegations as an employee-related matter, it says.
“Had the roles been reversed (i.e., had Chris Shermer been the perpetrator instead of the victim) he likely would have received a much harsher punishment, and been required to make restitution. He probably would have been fired from his employment and charged with a crime,” it says.
The suit alleges assault, battery and negligent infliction of emotional distress by Kosena and, by extension, the police department.
It alleges intentional infliction of emotional distress by Kosena, the department, Muir and Odlin; negligence by Kosena, the department and Muir; and defamation/slander by Odlin.
Shermer seeks both actual and punitive damages, as well as attorneys’ fees.
Nugent said Shermer sent a letter to the city in February, seeking a $250,000 out-of-court settlement, but that the city rejected that.

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KC Chiefs win age-discrimination lawsuit

San Francisco Chronicle

INDEPENDENCE, Mo. (AP) — A Jackson County jury decided that the Kansas City Chiefs did not discriminate against an older maintenance manager when he was fired in 2010.
The jury reached the verdict Wednesday in a lawsuit filed by 61-year-old Steve Cox, who claimed he was fired so the team could hire a younger replacement.
The Chiefs contended during the trial that Cox was fired for giving an employee a raise in defiance of his supervisor's wishes.
Two additional age-discrimination lawsuits against the Chiefs are awaiting trials. The former employees also claim they were wrongly fired.

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Friday, March 8, 2013

Zamora v. Lehman

Where corporation and its executives agreed in writing that any claim by any party against another would be waived unless asserted in writing "within one year of the date the claiming party knew or should have known of the facts giving rise to the claim," such provision was binding under the rule that a contractual notice provision is enforceable with respect to a claim against a professional or skilled expert as long as the provision incorporates the delayed discovery rule. Enforceability of contractual notice provision is not dependent on a showing of prejudice. Where employer filed for bankruptcy, trustee was bound by notice provision to the same extent as the employer, so ignorance of the provision due to delay in obtaining copies of the contracts had no bearing on the provision’s enforceability. Written allegations of wrongdoing by corporate employees did not constitute notice of a claim for breach of the employees’ fiduciary duties where such allegations were not made by the corporation prior to its bankruptcy filing or by the trustee subsequently.
     Zamora v. Lehman - filed March 7, 2013, Second District, Div. One
     Cite as 2013 S.O.S. 1153

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Corns v. Laborers International Union of North America

Labor-Management Reporting and Disclosure Act permits a labor organization, other than a local labor organization or a federation of national or international labor organizations, to levy assessments or increase dues or initiation fees payable by its members by any of the procedures enumerated in LMRDA Sec. 101(a)(3)(B). Where defendant international union complied with the LMRDA by enacting an organizing fee applicable to all of its members working in the construction industry, following a majority vote of its delegates at a national convention, there was no requirement that local union members approve the fee by a secret ballot vote under Sec. 101(a)(3)(A). Labor organization, which functioned as an intermediate body between the international union and a group of local unions, lacked statutory authority to ratify a dues increase because the local union members were not members of that organization.
     Corns v. Laborers International Union of North America - filed March 7, 2013
     Cite as 11-15737

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Thursday, March 7, 2013

St. Tammany Parish teacher fired for Obama political cartoons files lawsuit against school system

The Times-Picayune

Katherine Sayre

A St. Tammany Parish junior high teacher who was fired for displaying controversial student political cartoons -- including a portrait of President Obama with what some people interpreted as a bullet hole in his head -- has sued the school system on claims that he was treated unfairly and his rights under the teachers' collective bargaining agreement were violated.
Robert Duncan, 52, taught social studies at Boyet Junior High School in Slidell for about 13 years until he was put on administrative leave in February 2012 and officially fired six months later. A parent who walked onto campus without permission that February took photos of the posters displayed in a hallway, including a portrait of the president with a circle on his right temple, and sent the images to news media.
In August, Duncan appealed his dismissal in front of a three-person panel in a procedure newly established under state education reforms. After listening to several days of testimony, the panel upheld seven of the 20 charges against Duncan, according to the lawsuit. Folse, who had the final authority, then confirmed Duncan's termination.
Last month, Duncan filed a lawsuit in St. Tammany Parish District Court, naming the School Board, the superintendent and several administrators. The lawsuit seeks to have Duncan's job restored along with lost salary and benefits.
A spokeswoman for the St. Tammany Parish school system declined to comment Tuesday, saying administrators are not allowed to speak about "personnel matters."
In the lawsuit, Duncan's lawyer claims that school administrators conspired "to remove Mr. Duncan permanently as a teacher from the school system due to the negative publicity created by the media after it learned of the posters." The school's principal, Mitchell Stubbs, initially found Duncan not guilty in the matter, according to the lawsuit.
Charles Branton, Duncan's lawyer, called his client's firing a "witch hunt."
"Mr. Duncan had a spotless record," Branton said.
The lawsuit also argues that Duncan wasn't given proper notice of the charges against him or reasons why disciplinary action was being considered, as required by the teachers' collective bargaining agreement.
Before Gov. Bobby Jindal's education reforms were signed into law, Duncan would have had his appeal case heard in front of the full, 15-member School Board. Last week, a judge in Baton Rouge overturned the new law, ruling it unconstitutional. It wasn't immediately clear how that ruling would impact Duncan's pending case. In the lawsuit, Duncan claims that the new procedures were put into place in July 2012, which means Duncan's case should have proceeded under the previous system.
 One of the political cartoons on display at Boyet Junior High in 2012.  
During the hearing last year, the School Board's lawyer pointed to several student political cartoons to argue that the images, at the least, were often inappropriate, and Duncan strayed from the required curriculum governing the assignment. According to the lawsuit, a total of 141 students turned in posters, and 39 of them were put on display.
One poster showed a drawing of Bugs Bunny and Daffy Duck standing next to a tree with a sign that reads "Obama season" underneath Obama's face. Another had Obama and Republican candidate Mitt Romney jousting and hurling threats at one another. One student drew Sarah Palin, riding an elephant and clutching an AK-47.
But the poster that drew the sharpest criticism was the picture of Obama with the circular mark on his right temple, which some people said seemed to invoke violence against the president.
According to the School Board's lawyer, the student who drew the picture said she accidentally made the mark with her marker, and after she turned it in, she asked Duncan not to display it. In response, Duncan's legal team argued that there are two different marks on the picture of Obama: a brown smudge that would indicate the accidental mark and a more defined, green circle, both on the president's head.
Duncan testified he never saw the green mark, and if he had seen such a mark, he would have reported it to the principal and kept it from being on display. His lawyers contended that the mark was added later, after Duncan had graded it.
In Folse's initial decision, he ruled that Duncan was dishonest and made incompetent decisions.

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Wednesday, March 6, 2013

Jury sides with woman firefighter in harassment lawsuit

The Columbus Dispatch

John Futty

A woman who was fired as an Orange Township firefighter after complaining of sexual harassment by a co-worker was awarded more than $1.7 million in damages this week.
Raechel Sterud, 32, sued the Delaware County township and her supervising lieutenant, Keith Myers, in 2010, saying she was the victim of gender discrimination.
After a weeklong trial, a jury in Franklin County agreed, voting 7-1 on Monday that she was fired in 2007 because of her gender and that Myers acted “with actual malice” in recommending her termination. The jurors returned a judgment of $1.67 million against the township and $75,000 against Myers.
“The verdict represents vindication for (Sterud),” her attorney, Daniel Mordarski, said yesterday. “She’s been waiting for five years for a jury to look at all the facts and indicate that what happened was wrong.”
Michael Valentine, the attorney for Myers, declined to comment. John Latchney, who represented the township, did not immediately return a phone call.
Common Pleas Judge Kim Brown will schedule hearings to determine how much Sterud is owed in attorney fees by the defendants and whether she should get her job back. If the judge determines that it is reasonable and safe for her to return to the fire department, where those involved with the harassment and termination are still working, she would not receive the largest part of the judgment — $779,702 in future wages.
Robert Quigley, the chairman of the Orange Township board of trustees, said the township has not decided whether to appeal the ruling.
“I think what we’re trying to do is find out what all the options are,” Quigley said. “There’s nothing really right now that I can say.”
Sterud was hired as a full-time firefighter by the township in January 2007 and was fired two weeks before her one-year probationary period was to expire. In her lawsuit, she said that a male firefighter began sexually harassing her immediately after transferring to her unit and that Myers didn’t act on her complaints.
Evidence in the case included an email in which a firefighter warned Myers that Sterud planned to file a formal complaint once she left probation and became a member of the firefighter’s union.
Testimony at the trial showed that township firefighters were shown sexual-harassment training videos on a split screen so they also could watch a NASCAR race.
Fire Chief Tom Stewart, Assistant Fire Chief Matt Noble and the firefighter accused of harassment were named as defendants in the original lawsuit but were dismissed from the case before it reached trial.
Sterud was able to file the lawsuit in Franklin County because that’s where Myers lives.

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Workers: Darden fired us for joining lawsuit

Bloomberg News

Orlando-based Darden Restaurants was accused in federal court Monday of firing two Bahama Breeze workers in retaliation for joining a wage lawsuit.
But U.S. District Judge Robin Rosenbaum in Fort Lauderdale denied an injunction to restore the jobs of Amanda Emerson and Lisa Long at a restaurant in Altamonte Springs because she said the decision was better left to a jury.

Rosenbaum said she was "troubled" that Darden officials have questioned employees involved in the lawsuit and told them not to question any of the 54 plaintiffs without notifying lawyers.
The motion was part of a broader lawsuit filed Sept. 6. Workers sued Darden under the U.S. Fair Labor Standards Act, alleging restaurant managers delayed servers clocking in on the job, made them work after clocking out and failed to pay them overtime. Darden has denied the allegations.
Named in the complaint are workers from Red Lobster, Olive Garden, LongHorn Steakhouse and other restaurants across the U.S.

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Monday, March 4, 2013

Lawsuit: Female Yorktown doctor made sexual advances

Erik Shilling

Dr. Susan Malley had long crossed professional lines at the Yorktown clinic where she worked until recently, a former co-worker said in a sexual harassment lawsuit filed last week, mistreating staff and mocking patients’ concerns behind their backs.
But Janine Mancuso, who worked at the clinic for nearly a year, said that Malley’s behavior crossed a new line when Malley began making a series of sexual advances toward her, asking her out to dinner for a “girls’ night” and rubbing her arms for long periods of time.
“I love how you accessorize,” Malley is alleged to have once told Mancuso, who identifies as heterosexual. “You’re so beautiful.”
Mancuso eventually complained to administrators at Westchester Health Associates, which ran the clinic, and after administrators there said that they had dealt with the problem, Malley stopped kissing Mancuso on the face and touching her. Then one day, it is alleged, Malley began acting like a jilted lover.
Malley, Mancuso said, came into the office on a weekend to smash a picture of her.
Shortly after that, Mancuso went on short-term disability, ostensibly for trauma related to the harassment. She was walked out of the Yorktown clinic in August and has never worked there again.
Mancuso filed the lawsuit Feb. 24 in U.S. District Court in White Plains, claiming that Malley’s alleged actions created a hostile work environment, and that administrators’ lack of remedial action constituted retaliation. The lawsuit does not specify how much money it seeks in damages, and a lawyer for Mancuso did not return a request for comment. Messages left for Malley were not returned.
Mancuso started working as a office manager at the clinic in September 2011. She worked in other clinics after graduating in 2001 from Western Connecticut State University, according to her LinkedIn profile.
Malley’s behavior, as claimed in the lawsuit, ranges from merely off-color to potentially illegal. The gynecologist criticized receptionists, called one staff member “white trash,” referred to others as a “waste of money,” called others incompetent and poor dressers, rejected one female job applicant she thought was too ugly and criticized another applicant’s bad teeth, the lawsuit alleges.
 Malley regularly undercut Mancuso’s authority as an office manager, the lawsuit alleges, by questioning her hiring decisions, telling Mancuso’s subordinates to ignore her, and, on June 14, telling staff to watch their backs around Mancuso, a day before the picture-smashing incident.
The 13-page lawsuit at one point makes reference to Malley’s alleged suggestion that Mancuso sleep with a female superior to further her career. The lawsuit does not identify the female supervisor ; officials at Westchester Health Associates did not respond to requests for comment.
Malley’s alleged gossip about her patients, including one teenage girl she had performed reconstructive surgery on, was more salacious. The lawsuit claims she made light of another patient who had tattooed her genitalia, as well as a third who complained that sexual intercourse was painful.
According to her website, Malley, a married mother of three, has since left Westchester Health Associates and has started her own “gentle gynecology” practice in Danbury, Conn. She graduated from Wayne State University School of Medicine in Michigan.
“Quite recently, I left my position,” Malley wrote on the website, “discovering after several years that I was not following my own advice about finding a good fit for oneself in all things.”

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Friday, March 1, 2013

Judge orders Dahdoul Textiles Inc. to pay workers $260,000 in back wages, liquidated damages

Press Releases
U.S. Department of Labor
Wage and Hour Division
Release Number: 13-222-SAN (SF-21)

Labor Department assesses liquidated damages to recover double employees’ unpaid wages

LOS ANGELES -- The U.S. Department of Labor has obtained a consent judgment ordering Los Angeles home furnishings business Dahdoul Textiles Inc. to pay 57 current and former employees $130,000 in back wages, plus an equal amount in liquidated damages, which totals $260,000.
Investigators from the department’s Wage and Hour Division found willful violations of the Fair Labor Standards Act’s overtime and record-keeping provisions at the company’s Los Angeles retail store located at 1049 S. Los Angeles St. and at a warehouse located at 7200 Bandini Blvd. in Commerce.
The investigation established that employees were paid straight time for all hours worked and did not receive an overtime premium for hours worked beyond 40 per week, as required by the FLSA. The employer also maintained two separate timekeeping systems to conceal employees’ work hours.
“The Wage and Hour Division is focused on not just recovering what is rightfully due to workers, but also preventing employers from breaking the law in the future,” said Kimchi Bui, director of the Wage and Hour Division’s Los Angeles District Office. “The fact that we were able to recover double the original wages owed to the workers serves as a warning to employers, who try to skirt the law, that they may face serious financial consequences.”
In addition to requiring the payment of the back wages along with damages, the consent judgment enjoins the defendants from violating the FLSA in the future and requires them to pay $10,000 in civil money penalties. Under the consent judgment, Dahdoul Textiles is required to provide annual employee training on federal labor laws and must display a notice of the department’s findings in both English and Spanish in areas highly visible to employees.
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well as one and one-half times their regular rates for every hour they work beyond 40 per week. The law also requires employers to maintain accurate records of employees’ wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for their back wages and an equal amount in liquidated damages. Liquidated damages are paid directly to the affected employees.
Dahdoul Textiles is a retail and wholesale business that sells comforters, blankets, rugs and various home furnishing items.

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Southern California Cement Masons Joint Apprenticeship Committee v. California Apprenticeship Council

California Apprenticeship Council's approval of new program for training of cement masons was entitled to deference when there was evidence that public works contractors in Southern California employed cement mason apprentices at a lesser rate than required by the prevailing wage law, with many employing no apprentices at all, and that existing approved apprenticeship programs were graduating journeypersons at a rate insufficient to meet the state's estimate of demand for new cement masons in the area and had taken little or no action to address such underemployment.
     Southern California Cement Masons Joint Apprenticeship Committee v. California Apprenticeship Council (Southern California Laborers Cement Masons Joint Apprenticeship Committee) - filed February 28, 2013, First District, Div. One
     Cite as A132892

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Gore v. Yolo County District Attorney's Office

-Labor and Employment Law-
Former peace officer who resigned from his agency as part of a settlement agreement following appeal of the agency’s decision to terminate him for off-duty misconduct and insubordination, then began collecting retirement benefits the following year, was not an "honorable retired peace officer" pursuant to former Penal Code Sec. 12027, and thus had no right to a carry concealed weapons identification certificate.
     Gore v. Yolo County District Attorney's Office - filed February 28, 2013, Third District
     Cite as C068756

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Ex-KU worker's discrimination suit dismissed

The Associated Press

LAWRENCE — An age discrimination lawsuit filed by a former University of Kansas employee has been dismissed in Douglas County District Court.
The Lawrence Journal-World ( ) reports Cynthia Cook filed suit in state and federal court in 2011 claiming she was laid off in 2009 and passed over for another job at the school because of her age.
The university contended Cook and several other people were laid off for budget reasons. Cook was hired in 1980 as a secretary and was working as an information specialist in customer service when she was laid off.
Cook’s federal lawsuit was dismissed in October, while her district court suit was dropped earlier this month. Her lawyer declined to comment.

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Thursday, February 28, 2013

Fired whistleblower sues Sacramento diocese

The Sacramento Bee

By Suzan Phan

ACRAMENTO, CA - A head football coach at a Catholic high school in Vallejo has filed a wrongful termination lawsuit against the school and the Roman Catholic Diocese of Sacramento.

Chris Cerbone and four other coaches were fired last month, and five football players were expelled after reporting sexual abuse and hazing on the team. Now Cerbone is filing suit.
He said he reported the alleged abuse because he wanted to stop it and to protect the students from any further harm. He says it was a complete shock to be fired for doing the right thing.
"I found out about it. I did the right thing. I reported it. I'm the one who's without a job," said Cerbone last month after being fired from St. Patrick-St. Vincent Catholic High School.
Back in December, Cerbone heard freshman players say varsity football players were hazing them in a school locker room.
He claimed he heard players were exposing their genitals to harass younger teammates.
Cerbone, who also happens to be a former New York police officer, reported that to Child Protective Services, a chaplain, and then the principal.
Not long afterward, he got word that he was being terminated.
Cerbone claims he was fired in retaliation for reporting sexual hazing.
"We didn't make a personnel decision based on him being a whistleblower," said Kevin Eckery, Sacramento diocese spokesman.
The diocese says Cerbone was not fired because he reported the hazing incident but because he failed to properly supervise his players.
"We made a personnel decision based on other factors, including that he was ultimately responsible for the football program and that's where this problem was," Eckery said.
Cerbone's attorney, David Lowe, said, "This is a classic case of whistleblower retaliation. The diocese should be ashamed of its role in firing a teacher for reporting sexual abuse."
The suit alleges Cerbone suffered defamation, wrongful termination and retaliation, and it seeks lost wages, emotional distress damages, punitive damages and attorneys' fees and costs.
Cerbone said there was hazing on the team even before he became coach last summer.
But, he said the first time he learned of the hazing, he reported it.
He believes he did the right thing reporting the alleged abuse and he stands by his lawsuit.

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Wednesday, February 27, 2013

US Labor Department rescinds restrictions on investigating pay discrimination

OFCCP News Release: [02/26/2013]
Contact Name: Mike Trupo or Joshua Lamont
Phone Number: (202) 693-6588 or x 4661
Release Number: 13-0305-NAT

WASHINGTON — The U.S. Department of Labor today announced that its Office of Federal Contract Compliance Programs is rescinding two enforcement guidance documents on pay discrimination originally issued in 2006, commonly known as the "Compensation Standards" and "Voluntary Guidelines."This action, to be effective Feb. 28, is intended to protect workers and strengthen OFCCP's ability to identify and remedy different forms of pay discrimination. It will enable OFCCP to conduct investigations of contractor pay practices consistent with Title VII of the Civil Rights Act of 1964.
"A strong American middle class hinges on ensuring equal pay," said acting Secretary of Labor Seth D. Harris. "As President Obama has made clear, everyone – including the wives, mothers, sisters and daughters among us – must be paid fairly and without discrimination. These new standards will strengthen our ability to ensure that women and men are fully protected under our nation's laws."
The notice of final rescission withdrawing these two documents also includes new guidance for employers and other interested stakeholders setting forth the procedures, analysis and protocols OFCCP will utilize going forward when conducting compensation discrimination investigations. OFCCP will supplement the guidance with frequently asked questions, technical assistance, webinars, and other resources and materials to ensure that contractors have ample information about how to comply with the law.
"Today, we are lifting arbitrary barriers that have prevented our investigators from finding and combating illegal pay discrimination," said OFCCP Director Patricia A. Shiu, a member of the President's National Equal Pay Task Force. "At the same time, we are providing clear guidance for contractors to facilitate their success when it comes to providing equal opportunity to all of their workers."
The new approach described in the notice will enable OFCCP investigators to better examine practices and available evidence to uncover discrimination and evaluate contractor compliance with Executive Order 11246. That longstanding executive order requires federal contractors to comply with antidiscrimination obligations, including prohibitions against pay discrimination. Prior to this action, OFCCP was constrained by a methodology adopted in 2006 that made it harder for the agency to exercise its full legal authority because it required use of the same narrow formula to review all contractor pay practices, regardless of the industry, types of jobs, issues presented or available data. Now, OFCCP will be using its legal authority to hold contractors to the same legal standards – enshrined in Title VII, the landmark civil rights law – that courts and other federal agencies already apply to these businesses to prohibit job discrimination.

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. As amended, these three laws require those who do business with the federal government, both contractors and subcontractors, to follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. 

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EEOC files discrimination Suit against transportation firm

The U.S. Equal Employment Opportunity Commission said Tuesday that it filed a lawsuit against Prestige Transportation Service for hiring discrimination.
According to the suit, Prestige refused to hire black applicants for employment, discriminated against a black employee and retaliated against three employees for opposing race discrimination and/or filing a discrimination charge with the EEOC.
The lawsuit also says that Prestige unlawfully destroyed or failed to keep records and documents related to employment applications, personnel records, and documents regarding rates of pay and other terms of compensation.
Prestige, based in Miami, primarily transports crew members of airlines between airports and their hotels. Executives could not be reached for comment late Tuesday.

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Tuesday, February 26, 2013

Sonoma County Association of Retired Employees v. Sonoma County

-Labor and Employment Law-
District court erred in dismissing with prejudice retired employees’ complaint alleging that county had breached its obligation to provide them with certain vested healthcare benefits in perpetuity. In light of California Supreme Court’s recent decision recognizing that a county may form a contract with implied terms under specified circumstances, employees should have been allowed to plead facts plausibly showing that county created an implied contract by ordinance or resolution.
     Sonoma County Association of Retired Employees v. Sonoma County - filed February 25, 2013
     Cite as 10-17873

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NAACP, black firefighters argue hostile work environment in lawsuit against Jacksonville

Jacksonville is being sued by the NAACP and a black firefighters group who argue the city’s fire department treats blacks unfairly in hiring, job assignment and transfers and allows a racially hostile work environment. The suit, which expands on discrimination claims brought last year by the U.S. Justice Department, was filed Thursday afternoon in federal court. The Justice suit focused on promotion tests, saying there was a “pattern or practice” that disadvantaged black firefighters. The NAACP and the Jacksonville Brotherhood of Firefighters intervened in that suit in August.
The new court case argues black firefighters have other obstacles working against them. The suit argues disproportionate numbers of black firefighters are disciplined more often and assigned to less-desirable jobs in the rescue or prevention divisions instead of to fire suppression jobs. It argues the hiring process works against blacks, too, saying would-be firefighters have to spend months of time and up to $2,900 studying at a Southside center to be eligible, and the time and cost is a factor in a city where blacks are more prone to live in poverty. City General Counsel Cindy Laquidara said the city hoped to resolve the dispute this year without going to trial.

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Sanchez v. Swissport, Inc

Employee who has exhausted all permissible leave available under the Pregnancy Disability Leave Law may nevertheless state a cause of action under the California Fair Employment and Housing Act. PDLL remedies augment rather than displace those of the FEHA. Allegations that defendant employer terminated plaintiff because she was unable to work during her high-risk pregnancy, refused to grant her a reasonable accommodation in the form of allowing her to remain on leave until she gave birth, and fired her in response to her request for such an accommodation were sufficient to state claims for sex and disability discrimination and retaliation in violation of the FEHA.
     Sanchez v. Swissport, Inc. - filed February 21, 2013, Second District, Div. Four
     Cite as B237761

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Friday, February 22, 2013

Lyons Group to pay $424,000 to 409 underpaid workers at 15 well-known Boston restaurants

News Release

WHD News Release: [02/14/2013]
Contact Name: Ted Fitzgerald or Andre J. Bowser
Phone Number: (617) 565-2075 or x2074
Release Number: 13-0054-BOS

atrick Lyons to alert fellow restaurateurs of need to pay proper wages
BOSTON — A group of 15 Boston-area restaurants and their owners, Patrick Lyons and Edward Sparks, have agreed to pay $424,000 — including $212,000 in back wages and an equal amount in liquidated damages — to 409 employees to resolve alleged violations of the Fair Labor Standards Act identified by the U.S. Department of Labor. Lyons will also issue a public statement warning his fellow restaurant owners of the hazards of using contract labor providers who do not comply with the FLSA.
Investigations by the department's Wage and Hour Division found that employees of the following restaurants were not properly compensated for all work hours: Alibi Bar & Lounge; Back Bay Social Club; Bleacher Bar; The Estate; Game On; Harvard Gardens; Kings Boston; Kings Dedham; La Verdad; The Lansdowne Pub; Lucky's Lounge; Scampo; Sonsie; Sweetwater Café; and Towne Stove & Spirits. Many of these employees were paid straight time wages rather than time and one-half their regular rates of pay for hours worked in excess of 40 in a workweek, as required by the FLSA. The bulk of the underpayments affected Lyons Group kitchen staff, who were paid by Superbrite Professional Cleaning, a separate company, later known as Excel Management.
"Utilizing contract labor providers does not absolve employers from their responsibility of complying with the FLSA and paying workers the wages they are legally due," said George Rioux, district director for the Wage and Hour Division in Boston. "The use of contract labor providers in the restaurant industry has increased over the past several years, along with violations. Employers have a choice. Put these workers on payroll or ensure their labor providers are paying their employees in compliance with the FLSA."
"Employers should be aware that, as a general rule, they will pay twice when they underpay their employees. The  department will seek not only the back wages due the workers, but an equal amount in liquidated damages on their behalf," said Michael Felsen, the department's regional solicitor for New England, whose office negotiated the settlements. "The time has come for the restaurant industry in Massachusetts to address this issue seriously. Underpaying employees not only hurts workers, it undercuts those employers who have chosen to obey the law in the first place." 
As part of enhanced settlement agreements reached with the department, the Lyons Group will audit each restaurant's current compliance with the FLSA and take other steps to prevent violations. This will include developing and implementing a software program designed to detect employees who work in two or more of the restaurants during the same workweek.
The investigations were conducted under the division's multiyear enforcement initiative focused on the restaurant industry in Massachusetts, where widespread noncompliance with the FLSA's minimum wage, overtime and record-keeping provisions has been found.
The restaurant industry employs some of our country's lowest-paid workers who are vulnerable to disparate treatment and labor violations. In addition to the initiative in Massachusetts, the Wage and Hour Division has other ongoing enforcement initiatives throughout the U.S. to identify and remedy violations that are common in the restaurant industry.
The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 per hour, as well as time and one-half their regular rates for hours worked over 40 per week. The law also requires employers to maintain accurate records of employees' wages, hours and other conditions of employment, and prohibits employers from retaliating against employees who exercise their rights under the law. The FLSA provides that employers who violate the law are, as a general rule, liable to employees for back wages and an equal amount in liquidated damages.

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Wednesday, February 20, 2013

Obama's Minimum Wage Plan Caught Organized Labor By Surprise

Huffington Post

Dave Jamieson

WASHINGTON -- As the White House developed its new proposal to raise the federal minimum wage, there was at least one core constituency of President Obama's that was largely left out of the loop on the plan: organized labor.
Labor unions by tradition are one of the loudest voices advocating for a higher minimum wage, believing it will help spur wage growth not just for the working poor but for all workers. The White House's proposal last week to raise the wage floor from $7.25 to $9 by 2015 and peg it to inflation caught many labor officials by surprise -- in most cases, pleasant surprise, given the president's relative silence on the issue during his first term.
But others have voiced concern off-the-record that the White House's proposal comes with too low a number. Despite the general applause by progressives, labor activists who follow the issue closely recall that on the campaign trail in 2008 Obama stumped for having a minimum wage of $9.50 by the end of 2011.
His proposal now, in effect, is 50 cents and four years behind his earlier proposal, leaving some advocates with a mixture of enthusiasm and worry.
"We're encouraged, but we think the wage is too low," said one D.C. labor official, requesting anonymity to speak freely. "We would have enjoyed a deeper discussion."
A spokesman for the AFL-CIO, the largest labor federation in the country, declined to comment when asked if officials there had talked with the White House about its minimum wage plan ahead of the announcement, though labor sources say AFL-CIO officials did not have the opportunity to give their feedback. Similarly, a spokesperson for the Service Employees International Union (SEIU), many of whose members work in low-wage service jobs, said the union wasn't privy to the minimum wage plan, either.
Both the AFL-CIO and SEIU have publicly praised the White House proposal. AFL-CIO President Richard Trumka said it would alleviate "wage stagnation and growing inequality," and SEIU President Mary Kay Henry said it would "lift up millions of families."
But even among those who are thrilled to see the minimum wage become part of the national dialogue, there are some who believe the White House may be lowballing itself with $9, and at least two of them will be spearheading legislative talks in Congress.
Sen. Tom Harkin (D-Iowa) and Rep. George Miller (D-Calif.) have already said the $9 plan isn't enough, and they'll be advocating for a baseline of $10.10, also to be pegged to inflation. Harkin is the chairman of the Senate Committee on Health, Education, Labor and Pensions, and Miller is senior Democrat on the House Committee on Education and the Workforce. Both legislators have noted that the minimum wage would now be above $10 if it had kept pace with inflation since its historic high in the late 1960's.
The White House is probably hoping its more modest proposal of $9 will be palatable to House Republicans who are ideologically opposed to minimum wage increases, particularly during a weak economic climate. (The White House declined to comment on how it chose its number or whether organized labor was involved in the discussions.) The minimum wage hasn't been raised since 2009, after the last in a series of increases signed into law under President George W. Bush bumped it to $7.25 per hour.
Indexing the minimum wage to inflation is a long-term goal for many low-wage worker advocates, since it would tweak the wage floor each year to keep up with the cost of living, as well as take the politics out of legislative increases made by Congress. Ten states have already taken the initiative to index their minimum wages, usually to the consumer price index. (Nineteen states and the District of Columbia currently have minimum wages that trump the lower federal minimum.)
In his State of the Union address, Obama joked that indexing the minimum wage to inflation was one idea he had in common last year with failed GOP presidential candidate Mitt Romney.
For those who feel the minimum wage has eroded far too much, the downside to indexing is that raising the wage through large lump sums (as Bush did) becomes very difficult politically, given that it's already being raised each year in smaller measures. That makes the dollar value you start at -- in Obama's proposal, $9 -- all the more important, their reasoning goes.
"We wanted to get it above $10 before we index it -- we didn't want it to be artificially low," said one Democratic source, who didn't want to openly criticize the White House plan. The source added, "We were thrilled to see indexing" for inflation in the president's proposal.
A consultant to labor unions was less charitable, saying Obama should have pressed a more ambitious proposal. "Why didn't he go for $10, or even $11?" the consultant asked. "He's negotiating with himself again."
Whatever the number ends up being, Democratic aides expect the increase will be passed, despite claims from Republican leadership that it will hurt businesses and job growth. Minimum wage hikes typically get passed every few years, with Republicans and the business community finding something to like in the larger legislative package. The 2007 measure signed by Bush, for instance, was rolled into a supplemental aid package for the Iraq War that also included a small-business tax cut.
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