Hamilton County votes to pay $45,000 to settle lawsuit against Bill Hullander

TimesFreePress.com

By Kate Harrison

Hamilton County commissioners unanimously voted this morning to spend $45,000 to settle a wrongful termination lawsuit filed against the county and County Trustee Bill Hullander. Former county employee Lisa Crane filed a federal lawsuit against Hullander in August 2011, claiming that Hullander told her that she "did not 'fit' his 'reorganization' for the office" before he took the trustee position in September 2010, according to newspaper archives. She further claimed that Hullander said he was removing employees who had been hired by former trustee Carl Levi, who lost re-election to Hullander in 2010. But Hullander said he kept several of Levi’s former employees, and chose to remove others in the wake of a federal investigation into whether the office mishandled bankruptcy filings, which began during Levi’s term. In the county resolution outlining the settlement, Hullander and the county deny Crane's allegations and "assert that Ms. Crane's termination was for just cause." The suit had sought to reinstate Crane to her former position or an equivalent job. Crane also requests that the county compensate her for "humiliation and embarrassment" but did not specify an amount.

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NLRB charge alleging illegal picketing at Wal-Mart held in abeyance

January 31, 2013
Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

The NLRB Office of General Counsel today announced that, based on specific commitments made by the United Food and Commercial Workers union, it is not necessary to decide the merits of an unfair labor practice charge filed by Wal-Mart against the UFCW. In that charge, filed November 20, Wal-Mart alleged that the union violated the National Labor Relations Act by picketing at its stores for more than 30 days with the intent of seeking recognition for the union, without filing a petition for an election. The union, however, contended that the actions at the stores were not intended to gain union recognition, but to help employees in their efforts to have the employer commit to certain labor rights and standards. The charge will be held in abeyance and dismissed in six months as long as the union complies with the commitments it has made. Under those commitments, described in an Advice Memorandum, the union disavowed any recognitional or organizational object and promised to maintain a disclaimer to that effect on Making Change for Wal-Mart and OUR Walmart websites. The union also promised, among other things, not to engage in any picketing or confrontational conduct which is the functional equivalent of picketing for 60 days.

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SEXUAL HARASSMENT SETTLEMENT COSTS RIVERSIDE COUNTY $490,000 SEXUAL HARASSMENT SUIT SETTLED

UT San Diego

Riverside County to pay $490K in case naming health official

By DavE Downey • U-T 12:01 a.m.Jan. 17, 2013Updated3:31 p.m.Jan. 16, 2013

Riverside County will pay almost a half million dollars to settle a sexual harassment suit that named a former top health official, a lawyer for the plaintiff said this week. County spokesman Ray Smith confirmed the $490,000 amount, saying the settlement was approved by the Board of Supervisors late last year. The deal settles a lawsuit brought against the county in 2011 by Pamela Luna, who formerly worked as interim administrator of health and community programs for First 5 Riverside. First 5 Riverside is an agency that funds programs promoting the development of young children up to age 5. Luna worked there from May 2010 to August 2011. During her employment with the agency, Luna was the target of “unwanted and inappropriate advances” from Dr. Eric Frykman, said San Diego lawyer Joshua D. Gruenberg, who represented Luna. “In addition to verbally harassing Dr. Luna, Dr. Frykman repeatedly and openly ogled her, and touched her without her consent,” Gruenberg stated in a news release. “Attempts to investigate and resolve the harassment were not taken seriously at any level of the county’s chain of command, leaving Ms. Luna twisting in the wind until she was terminated in retaliation for her complaints.” At the time, Frykman was serving as Riverside County’s public health officer and Community Health Agency director. Frykman resigned the post in September 2011, and a short time later Cameron Kaiser was selected as the interim health officer.

Frykman did not immediately return a telephone call placed to his Riverside-area medical office on Wednesday seeking comment. Upon her termination, Luna sued the county, Frykman and other county employees, alleging unlawful harassment and retaliation, Gruenberg said. She sought damages for emotional and physical trauma, loss of economic opportunity and loss of reputation.

According to Smith, an internal county investigation and independent review by a consultant in 2011 found nothing to substantiate the claims. On Tuesday, Smith said, “For various reasons, the county believes this was the best resolution of the case.”Smith said the board approved the settlement on Nov. 6.“It required signatures from the other parties,” he said.“And it was finally signed by everyone who was required to sign off on the settlement November 26.”

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County of Alameda v. Workers' Compensation Appeals Board

-Labor and Employment Law-
Benefits paid to an injured public safety officer worker under Labor Code Sec. 4850 count toward the 104-week limit on payments for an injury causing temporary disability.
     County of Alameda v. Workers' Compensation Appeals Board - filed January 30, 2013, First District, Div. Four
     Cite as A135889

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Gannett settles a disability discrimination suit

SF Gate

Associated Press

PHOENIX (AP) — A federal agency says a media company has agreed to settle a disability discrimination lawsuit involving an Arizona employee for nearly $50,000.
The U.S. Equal Employment Opportunity Commission claims Gannett Company Inc. and Gannett Media Technologies Inc. unlawfully fired Robin Parker-Garcia after she returned from a medical leave stemming from her bipolar disorder.
GMTI is a software subsidiary of Gannett and is based in Tempe. The EEOC says Parker-Garcia was an application support analyst at GMTI.
The EEOC sued Gannett and its subsidiary in April 2011 after failing to reach an out-of-court settlement.
In settling the lawsuit, the EEOC says Gannett has agreed to pay Parker-Garcia $49,900 as compensatory damages and back pay.
A call to Gannett's main office in Virginia for comment on the settlement wasn't immediately returned Thursday.

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Six states outlaw employer snooping on Facebook

News.Cnet.com

by Dara Kerr

The list of states that don't put up with employers demanding employee's social media passwords is growing -- both California and Illinois laws went into effect on the first of this year.

Six states have officially made it illegal for employers to ask their workers for passwords to their social media accounts. As of 2013, California and Illinois have joined the ranks of Michigan, New Jersey, Maryland, and Delaware in passing state laws against the practice, according to Wired.
With Congress not being able to come to agreement on the Password Protection Act of 2012, individual states have taken the law into their own hands. Both California and Illinois agreed on password protection laws in 2012, but the laws didn't go into effect until yesterday.
The laws are designed to prohibit employers from requiring an employee or job applicant to provide their username and password for social media accounts, such as Facebook, Twitter, or Instagram. Assemblymember Nora Campos, who authored the California bill, called the law a "preemptive measure" that will offer guidelines to the accessibility of private information behind what she calls the "social media wall."

It's unclear how many employers have actually demanded access to workers' online accounts, but some cases have surfaced publicly and inspired lively debate over the past year. In one instance last April, a teacher's aide in Michigan was suspended after refusing to provide access to her Facebook account following complaints over a picture she posted.
According to Campos' office, more than 100 cases before the National Labor Relations Board in September involved employer workplace policies around social media. Facebook has also said it has experienced an increase in reports of employers seeking to gain "inappropriate access" to people's Facebook profiles or private information this past year.
While these six states now ban employer snooping on private information, all public information posted on social media accounts is still fair game.

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Employment Law: Abber V. Comstock

Lisa Aber, an employee of Wolters Kluwer United Sates, sued her employer and two of its employees, Michael Comstock and James Cioppa, alleging sexual harassment, failure to prevent sexual harassment, and sexual battery. She alleged that on June 5, 2010 Cioppa, who was her supervisor and Comstock tried to get her drunk and convince her to have sex with them, implying that her job would be secure if she did so . Comstock filed a cross-complaint, alleging defamation, which explained that the ree Wolters Kluwer employees had drinks at a restaurant on the night of June 5. Aber filed a special motion strike the cross-complaint under the anti-SLAPP statute, and the trial court granted the motion dismissing Comstock's cross-complaint in its entirety.
     Affirmed. Under the anti-SLAPP statute, the court must first decide whether the defendant, here, cross-defendant Aber, has shown that the challenged cause of action arises from protected activity. If the court does find such a showing has been made, it must then determine whether the plaintiff, here, cross-complainant Comstock, has demonstrated a probability of prevailing on the claim. Here, Comstock alleged in his cross-complaint that Aber made false statements to the police, health care practitioners, and Wolters Kluwer employees about him. Each of the statements, which were made in the course of alleging a harassment claim, were deemed to be protected activities. Also, Comstock failed to demonstrate a likelihood of prevailing on the merits of his claim because he failed to submit admissible evidence that Aber made defamatory statements about him. As such, the trial court properly granted Aber's motion to strike the cross-complaint.
Opinion by Justice Richman

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Statement by Chairman Pearce on recess appointment ruling

January 25, 2013
Contact:
Office of Public Affairs
202-273-1991

Today, the U.S. Court of Appeals for the DC Circuit issued a decision finding that the Jan. 4, 2012 recess appointments of three members to the National Labor Relations Board were invalid. In response, Chairman Mark Gaston Pearce issued the following statement:"The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.
In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

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Carolina Trail Golf Partners Inc. has paid more than $758,000 in back wages to 347 employees following a U.S. Department of Labor investigation

News Release

WHD News Release: [01/24/2013]
Contact Name: Michael D’Aquino 
Phone Number: (404) 562-2076 
Release Number: 13-0049-ATL

RALEIGH, N.C. — Carolina Trail Golf Partners Inc. has paid 347 employees a total of $758,465 in back wages following an investigation of seven of its facilities by the U.S. Department of Labor's Wage and Hour Division that found violations of the Fair Labor Standards Act's minimum wage and overtime provisions. The investigation included Charlotte Golf Links, Highland Creek Golf Club and The Tradition Golf Club, all of Charlotte; Birkdale Golf Club and Skybrook Golf Club in Huntersville; The Divide Golf Club in Matthews; and The Links at Waterford in Rock Hill, S.C.

Investigators found the employer missed several payrolls, and employees were issued paychecks five to six weeks late. Employees had received no wages for the hours they worked in pay periods for which a payroll was missed, resulting in minimum wage violations under the FLSA. Additionally, due to the missed payrolls, employees who worked more than 40 hours in a work week were denied overtime compensation. The FLSA requires employees be paid at least the federal minimum wage of $7.25 per hour as well as overtime compensation at time and one-half their regular rates for hours worked beyond 40 in a week.

"Employers are legally obligated to pay for all hours worked, including overtime when employees work more than 40 hours in a week," said Richard Blaylock, director of the division's Raleigh District Office. "Employers can not use the withholding of employee's pay as a form of financing of operations. The Wage and Hour Division is using every enforcement tool available to ensure workplace protections and to prevent employers who choose not to comply with the law from gaining an unfair advantage in the market over those who do comply. We remain vigilant in securing for workers the wages that they rightfully have earned."The employer has agreed to comply with the FLSA in the future, correct all the violations identified by this investigation and paid the back wages in full.

The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. In general, hours worked includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal work activity to the end of the last principal activity of the workday. Additionally, the law requires that accurate records of employees' wages, hours and other conditions of employment be maintained.

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Court Rejects Recess Appointments to Labor Board

The New York Times

By STEVEN GREENHOUSE

Published: January 25, 2013

A federal appeals court ruled on Friday that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January. A federal appeals court ruled on Friday that President Obama violated the Constitution when he made three recess appointments to the National Labor Relations Board last January.

The three-judge panel of the United States Court of Appeals for the District of Columbia Circuit held that Mr. Obama did not have the power to bypass the Senate and make the appointments.

The Obama administration has repeatedly asserted that the appointments to the N.L.R.B. were legitimate because he made them when the Senate was away during a 20-day holiday recess a year ago. The appeals court strongly disagreed, ruling that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.

Both Republican and Democratic lawmakers have used the tactic of “pro forma” session to block presidents from making recess appointments.

The court’s decision also raises doubts about the legitimacy of Mr. Obama’s recess appointment of Richard Cordray to head the Consumer Financial Protection Bureau.

Mr. Cordray’s appointment, which is being challenged in a separate lawsuit, was also made last January under the same recess circumstances. On Thursday, Mr. Obamaannounced he was again nominating Mr. Cordray to that position, voicing hope that Senate Republicans would not block confirmation this time, as they did with the previous nomination of Mr. Cordray.

Many Republicans and business associations have derided the labor board under Mr. Obama, saying it has become a tool of organized labor. But many Democrats and labor unions have responded that Mr. Obama’s appointments had merely restored ideological balance to the board after it had favored business interests under President George W. Bush.

The Obama administration is likely to appeal Friday’s ruling to the United States Supreme Court.

But if the ruling is upheld, it would invalidate scores of decisions that the labor board has made since last January.

The board would be left with just one validly appointed member — its chairman, Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the labor board, which has five seats, is authorized to issue decisions only when it has three or more sitting members.

On Jan. 4, 2012, Obama made the three recess appointments to the labor board. They were two Democrats — Deputy Labor Secretary Sharon Block; Richard Griffin, general counsel to the operating engineers union — and one Republican, Terence Flynn, a counsel to an N.L.R.B. member. Mr. Flynn resigned from the board last May after he was accused of leaking materials about the N.L.R.B.'s internal deliberations.

The three federal judges who issued Friday’s ruling were all Republican appointees. The decision was written by David B. Sentelle, an appointee of President Ronald Reagan who is chief judge of the federal appellate court in Washington, D.C.

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McGrory v. Applied Signal Technology, Inc

-Labor and Employment Law-

Lying or withholding information during an employer’s internal investigation of a discrimination claim is a legitimate reason to terminate an at-will employee. No material triable issue of fact existed to support a claim for wrongful discriminatory termination where there was no evidence of express antipathy to males or disparate discipline.

     

McGrory v. Applied Signal Technology, Inc. - filed January 24, 2013, Sixth District

     Cite as H036597

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Labor Department sues US Security Associates for refusing to comply with federal investigation of employment practices

News Release

OFCCP News Release: [01/17/2013]
Contact Name: Scott Allen or Rhonda Burke
Phone Number: (312) 353-6976
Release Number: 13-0030-CHI

Complaint asks court to bar security company from government contracting

CHICAGO — The U.S. Department of Labor has filed lawsuits to require Roswell, Ga.-based U.S. Security Associates Inc. — which provides uniformed and trained guards and other emergency responders under federal contract — to submit documents detailing the company's affirmative action plans for its own facilities in Milwaukee, Wis., and Portage, Ind.
The Labor Department's suits, filed with its Office of Administrative Law Judges, calls for the company to provide the department's Office of Federal Contract Compliance Programs with all documents and information requested, cooperate with scheduled compliance reviews and fully comply with the requirements of all laws enforced by the agency. If the company fails to comply, the department asks the court to cancel all of USA's current government contracts and to debar the entire company from entering into future contracts.
"Providing OFCCP investigators with access to the documents they need in order to do their jobs is not optional," said OFCCP Director Patricia A. Shiu. "U.S. Security Associates is well aware of its contractual obligation to submit the records we seek, and the company's denial of access at these two facilities is especially perplexing given its cooperation in providing the same documentation in past compliance reviews."
OFCCP sent a scheduling letter to the company's Milwaukee facility on Dec. 7, 2011, and its Portage facility on Dec. 13, 2011, requesting records that are required for a compliance review. Instead of submitting its affirmative action plans, as required by law, USA filed a complaint with the Office of Administrative Law Judges on June 21, 2012, seeking declaratory relief from the scheduled reviews. On Sep. 17, 2012, Chief Administrative Law Judge Stephen Purcell dismissed the company's complaint for lack of subject matter jurisdiction. USA appealed the decision to the Administrative Review Board, and the matter is currently pending. Over the following months, OFCCP continued to request that the company submit its plans but, to date, the contractor has refused.
The named facilities are two of more than 20 USA sites that currently have open OFCCP compliance evaluations. Efforts to resolve the issue between the two parties failed when USA decided to deny OFCCP access to information about its affirmative action programs in Milwaukee and Portage. The issue of providing OFCCP with access to such information has been affirmed by the courts numerous times. In November 2011, Chief Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia ruled, in a similar case, that "Submission to such lawful investigations is the price of working as a federal contractor."
Since at least 2008, USA has been a party to federal contracts that obligate it to develop and maintain plans for its affirmative action programs and provide those plans to OFCCP upon request. In July 2009, USA was awarded a contract with the General Services Administration worth more than $1 million. The company also was awarded a federal contract with the U.S. State Department for more than $7 million covering a period from September 2010 through October 2015.
OFCCP enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. 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.

US Labor Department, Iowa Workforce Development sign agreement to reduce misclassification of employees as independent contractors

News Release

WHD News Release: [01/17/2013]
Contact Name: Sonia Melendez or Joshua Lamont
Phone Number: (202) 693-4672 or x4661
Release Number: 12-2496-KAN

WASHINGTON — Officials of the U.S. Department of Labor's Wage and Hour Division and Iowa Workforce Development today signed a memorandum of understanding to protect the rights of employees by preventing their misclassification as independent contractors by employers.
Mary Beth Maxwell, acting deputy administrator of the Wage and Hour Division, and Teresa Wahlert, director of Iowa Workforce Development, also hosted a press teleconference to discuss how their two agencies will embark on new efforts, guided by this memorandum, to protect the rights of employees and level the playing field for responsible employers by reducing the practice of misclassification by some businesses. Iowa is the 14th state to form this type of partnership with the Labor Department.
"This memorandum of understanding sends a clear message: We're standing united to end the practice of misclassifying employees," said Maxwell "This is an important step toward making sure that the American dream is still available for employees and responsible employers alike."
"Misclassification is an issue that affects all states. This memorandum will allow Iowa to utilize federal resources that weren't available to the state previously," said Wahlert.
Since September 2011, when the Wage and Hour Division began entering into memorandums of understanding with states and announced a similar partnership with the Internal Revenue Service, the division has collected $9.5 million in back wages for more than 11,400 workers where the primary reason for minimum wage or overtime violations under the Fair Labor Standards Act was that workers were not treated or classified as employees. These figures represent an 80 percent increase in back wages and a 50 percent increase in the number of workers receiving back wages following the implementation of these agreements.
Business models that attempt to change or obscure the employment relationship through the use of independent contractors are not inherently illegal, but they may not be used to evade compliance with federal labor law. Although legitimate independent contractors are an important part of our economy, the misclassification of employees presents a serious problem, as these employees often are denied access to critical benefits and protections — such as family and medical leave, overtime compensation, minimum wage pay and Unemployment Insurance — to which they are entitled. In addition, misclassification can create economic pressure for law-abiding business owners, who often find it difficult to compete with those who are skirting the law.Employee misclassification also generates substantial losses for state Unemployment Insurance and workers' compensation funds.
Memorandums of understanding with state government agencies arose as part of the department's Misclassification Initiative, which was launched under the auspices of Vice President Biden's Middle Class Task Force with the goal of preventing, detecting and remedying employee misclassification. California, Colorado, Connecticut, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Minnesota, Missouri, Montana, Utah and Washington have signed similar agreements.

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Acting General Counsel releases summary of operations for FY 2012

Contact:
Office of Public Affairs
202-273-1991

Acting General Counsel Lafe Solomon has released a summary of activities for the Fiscal Year 2012. Of special note:

• 93.9% of all initial elections were conducted within 56 days of the filing of the petition.
• Initial elections in union representation elections were conducted in a median of 38 days from the filing of the petition.
• A 91.0% settlement rate was achieved in the Regional Offices in meritorious unfair labor practice cases.
• 97% of the 37 10(j) petitions litigated in federal district court resulted in a satisfactory settlement or substantial victory.
• The Regional Offices won 90.1% of Board and Administrative Law Judge unfair labor practice and compliance decisions in whole or in part in FY 2012.
• 94.5% of the 73 Board decisions under review by the US Courts of Appeals were enforced or affirmed in whole or in part.
• A total of $44,316,059 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines. 1,241 employees were offered reinstatement.
• The Agency exceeded two of its three ambitious overarching goals and came close to achieving the third, closing 84.5% of all representation cases within 100 days (target 85.2%), 72.7% of all unfair labor practice cases within 120 days (target 72.0%), and 83.8% of all meritorious unfair labor practice cases within 365 days (target 80.3%). The target for each 2012 overarching goal was higher than in FY 2011 and the goal for the percentage of meritorious unfair labor practice cases closed within 365 days of the filing of the charge has been increased for FY 2013.

In addition, the Agency’s total case intake during FY 2012 was 24,275 compared to 25,004 cases in FY 2011, representing a 3% decrease in overall intake. Unfair labor practice case intake was 21,629, a 2.5% decrease from the previous year, and total representation case intake was 2, 646, a 6.5% decrease from the FY 2011 total.
“I extend my sincere appreciation to all staff members for their continued hard work and dedication to public service and for the cooperative manner in which they have responded to the priorities in casehandling,” the Acting General Counsel said in releasing the report. “My thanks also to those who practice before us for the cooperation and assistance extended to us in our efforts to administer the Act effectively and efficiently.”

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Trial Court Erred In Failing To Certify Class Action For Unpaid Overtime And Meal-And-Rest Breaks

Bradley v. Networkers Int'l, LLC, 2012 WL 6182473 (Cal. Ct. App. 2012)

The three named plaintiffs in this case were among approximately 140 skilled workers retained by Networkers to provide repair and installation services at cell sites. Each worker was required to sign a standard contract, which stated that he or she was an independent contractor rather than an employee. The purported independent contractor agreement was later replaced with an employment agreement under which only one of the named plaintiffs had worked. The trial court denied class certification, but the Court of Appeal reversed the order except with respect to plaintiffs' claims for alleged off-the-clock violations as to which the court held class certification was properly denied. As for the meal and rest break and unpaid overtime claims, the Court distinguished Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) and held that under this employer's "uniform practice, none of the workers was provided, or given authorization to take, the required meal or rest breaks" because they had been treated as "independent contractors." Thus, class certification was improperly denied as to those claims. Cf. Barnes, Crosby, Fitzgerald & Zeman v. Ringler, 2012 WL 6633855 (Cal. Ct. App. 2012) (attorney may be equitably estopped from claiming a fee-sharing agreement is unenforceable where the attorney is responsible for non-compliance with the rules requiring informed written consent from the client).

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Certification Was Properly Denied In Class Action Seeking Reimbursement From Employer

Morgan v. Wet Seal, Inc., 210 Cal. App. 4th 1341 (2012)

Crystal Morgan and two other former employees sued Wet Seal because the company allegedly required employees to purchase Wet Seal clothing and merchandise as a condition of employment and also failed to reimburse employees for their mileage between Wet Seal business locations. The trial court denied class certification on the ground that common questions do not predominate over individual questions. The court of Appeal affirmed, holding that Wet Seal's policies did not require employees to wear Wet Seal clothing, providing only that employees must dress in a manner "consistent with current fashion style that is reflected in the stores." As for the travel expense claim, the court held that plaintiffs had essentially conceded that "Wet Seal's travel reimbursement practice was not consistent across the board."

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$125,000 Verdict And $550,000 Fee Award Affirmed For Negligent Supervision And Violation Of Civil Code § 51.7 (Freedom From Violence)

Ventura v. ABM Indus., Inc., 2012 WL 6636255 (Cal. Ct. App. 2012)

Sylvia Ventura worked as a janitor for ABM. Ventura alleged a history of harassment and an act of violence by her supervisor, Carlos Manzano, and ratification by ABM. The jury awarded Ventura $100,000 in compensatory damages for past mental suffering. The trial court entered judgment in Ventura's favor in the amount of the compensatory damages plus a $25,000 civil penalty under Civil Code § 51.7; the trial court also awarded Ventura $550,000 in attorney's fees. The Court of Appeal affirmed, holding that ABM had waived the defense of the workers' compensation bar to the negligence-based claims because it had failed to ask the trial court to dismiss those claims (even though it had raised the defense in its answer). The Court also held that it was not error for the trial court to permit Ventura to file a second amended complaint asserting the section 51.7 claim on the eve of trial. For reasons that are unclear, Ventura asserted no claims under the Fair Employment and Housing Act and, according to the concurring and dissenting opinion, "turned to a novel and unprecedented avenue for an attorney fees and penalty award by successfully invoking Civil Code section 51.7."

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Police Officer Who Had Heart Attack Could Not Perform Essential Functions Of Administrative Job

Lui v. City and County of San Francisco, 211 Cal. App. 4th 962 (2012)

After suffering a major heart attack, Kenneth Lui retired from his position as a police officer with the San Francisco Police Department. After the Department informed him there were no administrative positions available that did not require him to perform the strenuous duties regularly performed by patrol officers in the field, he sued for disability discrimination under the Fair Employment and Housing Act. The trial court entered judgment in favor of the Department, and the Court of Appeal affirmed, holding that even though officers in administrative positions are not frequently required to engage in strenuous physical activity, the ability to perform such duties is essential because the Department has a legitimate need to be able to deploy officers in those positions in the event of emergencies and other mass mobilizations. See also Furtado v. State Personnel Bd., 2013 WL 64657 (Cal. Ct. App. 2013) (peace officer was properly demoted because he was unable to perform the essential functions of his job with or without accommodation); Basurto v. Imperial Irrigation Dist., 211 Cal. App. 4th 866 (2012) (public... employee's civil claims for age and race discrimination were barred under principles of estoppel and res judicata by a prior adverse administrative decision of the district's governing board); Edgerly v. City of Oakland, 2012 WL 6194390 (Cal. Ct. App. 2012) (former city administrator who was allegedly terminated for refusing to violate the city's charter, municipal code and civil service rules and resolutions could not state claim for violation of the statewide whistleblower statute, Labor Code § 1102.5).

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Wrongful Termination Claim Was Properly Dismissed Based Upon Employee's Ineligibility For Family Leave

Olofsson v. Mission Linen Supply, 2012 WL 6200336 (Cal. Ct. App. 2012)
Lars Olofsson was a regular route driver for Mission Linen when he informed the plant manager (Jack Anderson, Sr.) that he needed seven weeks off from work to care for his elderly mother in Sweden who was recuperating from back surgery. Anderson told Olofsson he could have the leave if he filled out the application for leave and submitted a doctor's certification. Olofsson later submitted a letter, ostensibly from his mother's doctor that was not on printed letterhead indicating it was generated by a medical establishment. Later, the company notified Olofsson that he was ineligible for family leave because he had not worked the requisite 1,250 hours in the year preceding the leave (he was approximately 75 hours short). Further, Olofsson failed to give the company 30 days' advance notice of a foreseeable event such as a family member's planned medical treatment. The trial court granted judgment in favor of the employer, concluding that it did not misrepresent by deed that Olofsson's leave had been approved and that it was not silent when it had a duty to speak under the applicable family leave regulations. The Court of Appeal affirmed the judgment.

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$114,000 Pregnancy Discrimination Award Is Reversed Based On Erroneous Jury Instructions

Veronese v. Lucasfilm Ltd., 2012 WL 6628544 (Cal. Ct. App. 2012)
Julie Gilman Veronese sued Lucasfilm on a number of theories, including pregnancy discrimination, failure to prevent pregnancy discrimination and wrongful termination in violation of public policy. Following 11 days of trial and three days of deliberation, the jury returned a verdict in favor of Veronese in the amount of $93,830 for past economic damages and $20,000 for emotional distress damages. The trial court later awarded Veronese $1,157,411 in attorney's fees. The Court of Appeal reversed the judgment because the trial court refused to give a special instruction involving the exercise of business judgment that was proposed by Lucasfilm:

"You may not find that Lucasfilm discriminated or retaliated against Julie Gilman Veronese based upon a belief that Lucasfilm made a wrong or unfair decision. Likewise, you cannot find liability for discrimination or retaliation if you find that Lucasfilm made an error in business judgment. Instead, Lucasfilm can only be liable to Julie Gilman Veronese if the decisions made were motivated by discrimination or retaliation related to her being pregnant."

The court further held that it was error for the trial court to instruct the jury (at Veronese's request) that "[a] potential hazard to a fetus or an unborn child is not a defense to pregnancy discrimination" because Lucasfilm did not assert such a concern as a defense to discrimination in this case. The court also found error based upon the trial court's failure to instruct the jury on the failure to prevent discrimination claim (even though the jury found for Veronese on that claim) and on the difference between the termination claim and the failure to hire/promote claim.

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$1.347 Million Award To Former General CounselFor Breach Of Implied Contract Is Upheld

Faigin v. Signature Group Holdings, Inc., 211 Cal. App. 4th 726 (2012)

Alan W. Faigin worked as an in-house attorney for Fremont General Corporation (which later became Signature Group Holdings) for 17 years before his employment was terminated for cause in March 2008. Faigin sued Fremont based on a number of theories, including breach of an implied-in-fact contract, and a jury returned a verdict in Faigin's favor in the amount of $1,347,000. The Court of Appeal affirmed the judgment, holding that the absence of an express employment-at-will agreement supported Faigin's assertion that his employment was subject to an implied-in-fact contract that the employment could only be terminated for good cause. The court also affirmed the award of damages and held that it did not constitute an illegal "golden parachute" payment within the meaning of the Federal Deposit Insurance Act. The court also ruled that "oral assurances of job security… [are,] in and of themselves, evidence of the existence of an implied promise" and are, therefore, not inadmissible hearsay. Finally, the court held that the denial of prejudgment interest to Faigin was proper.

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Dallas-based Paradise Detail to pay nearly $230,000 in minimum wage and overtime back wages following US Department of Labor investigation

News Release

WHD News Release: [01/10/2013]
Contact Name: Elizabeth Todd or Juan Rodriguez
Phone Number: (972) 850-4710 or x4709
Release Number: 12-2017-DAL

DALLAS — Paradise Detail Ltd. in Dallas has agreed to pay 82 current and former detail and car wash employees $229,475 in back wages following an investigation by the U.S. Department of Labor's Wage and Hour Division that found violations of the Fair Labor Standards Act's overtime and minimum wage provisions.
"This company benefited by not paying employees all the wages they were entitled to receive," said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. "Car wash employees are among the most vulnerable employees in the workforce. The Labor Department remains committed to protecting the rights and wages of these workers and to leveling the playing field for employers who play by the rules. The back wages paid in this case should serve as a warning to other employers to ensure that they are paying their employees in compliance with the laws."
An investigation by the Wage and Hour Division's Dallas District Office found that the company's timekeeping system always rounded time worked in the employer's favor, resulting in paying employees for fewer hours than they had actually worked. Such shortages created minimum wage violations when employees' pay fell below the federal minimum wage of $7.25 per hour. The employer also failed to pay employees overtime at time and one-half their regular rates of pay for hours worked beyond 40 in a workweek.
Paradise Detail, which provides car wash and detailing services to car dealerships, agreed to comply with the FLSA in the future and to pay in full the back wages due.
The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. In general, hours worked includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal work activity to the end of the last principal activity of the workday. Additionally, the law requires that accurate records of employees' wages, hours and other conditions of employment be maintained.

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3 restaurants in Nassau and Westchester counties ordered to pay $1 million to 255 underpaid employees following US Labor Department investigation

WHD News Release: [01/03/2013]
Contact Name: Ted Fitzgerald or Andre J. Bowser
Phone Number: (617) 565-2075 or x2074
Release Number: 12-2135-NEW

Asian Moon and Golden Rod restaurants also will pay more than $98,000 in civil money penalties for minimum wage, overtime, recordkeeping violations

WESTBURY, N.Y. — A chain of three full-service restaurants in Nassau and Westchester counties and its president will pay $1,085,752 in back wages, interest and liquidated damages to 255 employees, according to the terms of consent judgments obtained in federal court by the U.S. Department of Labor. Defendants Asian Moon Restaurant of Massapequa Park Inc., Asian Moon Restaurant Corp. in Garden City, Golden Rod Restaurant Corp. in New Rochelle and Vickie Sue Li also will pay $98,231 in civil money penalties and interest for violations of the federal Fair Labor Standard Act's minimum wage, overtime and record-keeping provisions. The judgments resolve lawsuits filed by the department that were based on investigations by its Wage and Hour Division.
Investigators from the division's Long Island and White Plains offices found that employees working as servers and kitchen staff at all three locations were paid wages which did not equal at least the hourly minimum wage and did not include proper compensation for overtime hours worked beyond 40 in a week. In addition, the defendants maintained false and incomplete records of employees' pay rates and hours worked.
"These workers suffered egregious labor violations," said Secretary of Labor Hilda L. Solis. "The Department of Labor is committed to using all tools available to recover workers' wages and ensure accountability under the law. By conducting FLSA investigations, we not only seek to assist vulnerable workers in sectors such as the restaurant industry, but also to level the playing field for all employers who obey the law."
The judgments, entered in the U.S. district courts for the Eastern and Southern districts of New York, require the defendants to pay the back wages and interest to the Wage and Hour Division, which will distribute the wages to the workers, and to pay the civil money penalties to the department. The judgments also prohibit the defendants from future violations of the FLSA's minimum wage, overtime and record-keeping provisions. Should the defendants fail to make timely payments, the department will file supplementary consent judgments seeking immediate payment.
The FLSA requires that covered, nonexempt 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 case was litigated for the department by its Regional Office of the Solicitor in New York.

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January 04, 2013
Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

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Settlement ends long-running dispute at Florida performing arts center

January 04, 2013
Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

NLRB Regional Director Margaret J. Diaz today approved the resolution of all pending litigation in a long-running dispute between the Raymond F. Kravis Center for the Performing Arts, Inc. in West Palm Beach, FL, and the International Alliance of Theatrical Stage Employees, AFL-CIO, Local 500.
The resolution provides for approximately $2.2 million in backpay to 248 employees who were unlawfully denied employment over more than a decade. The money is to be paid in two installments, the first of which is due by January 15, 2013 and the second of which is due by January 15, 2014.
In addition, the parties signed a collective-bargaining agreement, effective December 21, 2012 through June 30, 2017, under which the entertainment venue recognizes the union as the bargaining agent for stagehands working on Kravis productions, and agrees to obtain workers through the Local 500 hiring hall. The contract also reinstates three department heads whose positions had been eliminated.
The Board ruled in September 2007 that the theatrical venue violated federal labor law by failing to bargain to impasse with its union, IATSE, by unilaterally changing wages and conditions of employment, and by refusing to use the union’s hiring hall in more than 700 productions staged since charges were filed in 2001. The Board’s order was enforced by the DC Circuit Court in 2008. In July, the NLRB issued a compliance specification setting the backpay amount due to carpenters, electricians and other skilled laborers at $2.6 million.
The center had taken certain other steps to comply with the Board Order in 2009.
In addition to their agreement resolving the compliance matter, Kravis Center and the Union entered into a separate agreement requiring Kravis Center to remedy allegations of additional unfair labor practices committed in 2011 and 2012 that had been set forth in a complaint issued in July.  In turn, the NLRB approved the union’s withdrawal of charges in the cases covered by the complaint, conditioned on the terms of the agreement being carried out.
The Board’s Tampa Regional Office (Region 12) and Pittsburgh Regional Office (Region 6) jointly worked on these cases, with the assistance of Board personnel at headquarters in Washington.

 

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NLRB requires balancing of employer confidentiality interests and a union’s need for information concerning employee discipline

December 28, 2012
Contact:
Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

The National Labor Relations Board has ruled that, in considering whether an employer is obligated to provide witness statements to a union representing an employee concerning discipline, the Board must balance the confidentiality interests of the employer against the union’s need for the information.
The decision in American Baptist Homes of the West d/b/a Piedmont Gardens overrules a 1978 Board decision, Anheuser-Busch, Inc., 237 NLRB 982, which established a categorical exemption for witness statements in such cases. In Piedmont, The Acting General Counsel and the charging party argued that the bright-line rule established in 1978 was “inappropriate”, and the Board agreed, finding it should instead apply a balancing test articulated by the Supreme Court in 1979, in Detroit Edison Co. v NLRB, 440 U.S. 301.
The case involves a continuing care facility in Oakland, California, where statements by two witnesses alleging that a certified nursing assistant was asleep on the job resulted in that person’s termination. The union representing employees at the facility, SEIU, United Healthcare Workers-West, asked for information used in the termination, including witness statements. The employer refused.
In its decision, the Board noted that the National Labor Relations Act imposes on an employer a “general obligation” to furnish a union with relevant information necessary to perform its duties. However, under Detroit Edison, the Board must balance that need against “any legitimate and substantial confidentiality interests established by the employer.” The Board discussed that balance in the decision. Also, it decided not to apply the rule retroactively; therefore, Piedmont and other pending cases are being decided under Anheuser-Busch.
The Board asked for briefing on a similar question in a decision in Hawaii Tribune Herald issued March 2011.  In its Dec. 14, 2012 supplemental decision, the Board found it unnecessary to address the issue of overruling Anheuser-Busch because it found that the witness statement in the case was not covered by that decision.

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US Department of Labor sues National Council of La Raza Action Fund Inc., ordering reinstatement of whistle-blower fired for mold exposure complaint

OSHA News Release: [12/26/2012]
Contact Name: Michael D’Aquino 
Phone Number: (404) 562-2076
Release Number: 12-1482-ATL

ORLANDO, Fla. — The U.S. Department of Labor has sued National Council of La Raza Action Fund Inc., successor to Democracia USA, a nonprofit community engagement and Hispanic voter registration organization in Orlando, for allegedly terminating an employee who raised health concerns about potential exposure to mold and other environmental factors in his workplace. The lawsuit follows an investigation by the department's Occupational Safety and Health Administration that found that the company unlawfully and intentionally terminated the worker for engaging in activity protected by Section 11(c) of the Occupational Safety and Health Act.

The suit seeks to have the employee reinstated and paid back wages, interest, and compensatory and punitive damages, along with expunging adverse information in the employee's personnel records. Finally, it seeks to bar the employer from commission of future violations of the OSH Act by a permanent injunction.

"Every American worker has the right to raise health concerns regarding potential exposures to environmental hazards, such as mold, without fearing retaliation," said Cindy Coe, OSHA's regional administrator in Atlanta. "We will continue to ensure that these basic worker rights are protected and will prosecute every employer found to have violated them."

In mid-September 2009, the employee began reporting concerns to management about potential exposure to mold and other environmental factors in the workplace, which were making him sick. In November 2009, an air quality test was performed that showed the presence of mold in the workplace. The office was closed for several months. After it reopened, the employee filed a health complaint with the OSHA Tampa Area Office. OSHA conducted an inspection and issued a citation against the employer for violation of OSHA's housekeeping standard. Upon receipt of the OSHA citation, the employee was informed that his employment was terminated. The employee then filed a whistle-blower complaint with OSHA.

The department is represented in court by its Regional Office of the Solicitor in Atlanta. The suit was filed in the U.S. District Court for the Middle District of Florida, Orlando Division.

OSHA enforces the whistle-blower provisions of the OSH Act and 21 other statutes protecting employees who report violations of various commercial motor vehicle; airline; nuclear; pipeline; environmental; railroad; public transportation; maritime; consumer product; health care reform; securities; food safety; and consumer financial reform regulations.

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US Department of Labor recovers more than $133,000 in back wages and benefits for 28 workers of Memphis-based tent and awning company

WHD News Release: [12/31/2012]
Contact Name: Elizabeth Todd or Juan Rodriguez 
Phone Number: (972) 850-4710 or x4709
Release Number: 12-2446-DAL

NEW ORLEANS — Mahaffey Tent and Awning Co. Inc., doing business as Mahaffey Fabric Structures, has paid $133,285 in back wages and fringe benefits to 28 current and former workers following an investigation by the U.S. Department of Labor's Wage and Hour Division. The investigation found that the company violated the requirements of the McNamara-O'Hara Service Contract Act and the Contract Work Hours and Safety Standards Act.

"Taxpayers have a right to expect that federal contractors who are paid with tax dollars will comply with the law. The Labor Department will not allow companies to abuse that trust," said Cynthia Watson, regional administrator of the Wage and Hour Division in the Southwest. "We will continue to use all enforcement tools available to ensure that employees are paid what they have rightfully earned, and to ensure a level playing field for employers. Companies who play by the rules must not be placed at a disadvantage to those who do not."

An investigation by the division's New Orleans District Office found that Mahaffey Fabric Structures violated the SCA by failing to pay employees working at Fort Polk in Vernon Parris the proper prevailing wage rates and fringe benefits required for the categories of work performed. Investigators also determined that some employees were wrongly classified as laborers rather than general maintenance workers or forklift operators, which both require payment at higher rates. The employer violated CWHSSA when it failed to pay employees time and one-half of the required prevailing rates of pay for hours worked beyond 40 in a workweek.

Memphis, Tenn.-based Mahaffey Fabric Structures, a tent and fabric structure rental company, has agreed to comply fully with the SCA and CWHSSA in the future. Back wages have been paid in full.

Under the SCA, contractors and subcontractors working on federal service contracts in excess of $2,500 must pay their service workers no less than the wages and fringe benefits prevailing in the locality. The CWHSSA requires the payment of time and one-half employees' basic rates of pay for all hours worked over 40 in a week. Primary contractors must ensure that subcontractors are fully informed of the requirements of the labor laws regarding federal government contracts.

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Nieman Printing pays more than $96,000 in overtime back wages to Dallas workers following US Labor Department investigation

News Release

WHD News Release: [12/31/2012]
Contact Name: Elizabeth Todd or Juan Rodriguez 
Phone Number: (972) 850-4710 or x4709
Release Number: 12-2445-DAL

DALLAS — Nieman Printing Inc. in Dallas has paid $96,335 in overtime back wages to 101 employees following an investigation by the U.S. Department of Labor's Wage and Hour Division, which found that the company violated the overtime provisions of the Fair Labor Standards Act. Civil money penalties assessed total an additional $26,000.

"This company knowingly used illegal employment tactics to avoid paying workers overtime," said Cynthia Watson, regional administrator for the Wage and Hour Division in the Southwest. "This investigation demonstrates the Labor Department's commitment to ensuring that employees are paid the wages they have rightfully earned, and to holding employers accountable for compliance with federal law. We will continue to use every enforcement tool available to ensure a level playing field for all employers."

An investigation conducted by the division's Dallas District Office determined that the company required employees to record hours worked on two different time clocks at the same facility during the workweek, and then failed to combine those hours to determine when overtime was due. As a result, employees failed to receive an overtime premium of one and one-half times their regular rates of pay for hours worked beyond 40 in a workweek.

Investigators found that employees were under contract by two separate staffing agencies simultaneously to provide services for Neiman, with hours worked Monday through Wednesday charged to one temporary help service, and hours worked by the same employees for the same employer Thursday through Sunday charged to another service. Additionally, investigators determined that some salaried employees were wrongly classified as exempt from receiving overtime; in fact, they were due overtime compensation.

Nieman Printing has agreed to comply fully with the FLSA. Back wages and civil money penalties have been paid in full.

The FLSA requires that covered, nonexempt employees be paid at least the federal minimum wage of $7.25 per hour for all hours worked, plus time and one-half their regular rates, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. In general, hours worked includes all time an employee must be on duty, or on the employer's premises or at any other prescribed place of work, from the beginning of the first principal work activity to the end of the last principal activity of the workday. Additionally, the law requires that accurate records of employees' wages, hours and other conditions of employment be maintained.

The FLSA provides an exemption from both minimum wage and overtime pay requirements for individuals employed in bona fide executive, administrative, professional and outside sales positions, as well as certain computer employees. To qualify for exemption, employees generally must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week. Job titles do not determine exempt status. For an exemption to apply, an employee's specific job duties and salary must meet all the requirements of the department's regulations.

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