California Employee Rights Attorney

Law360 reports, "NLRB Says Realty Co.'s Employee Class Waiver Is Unlawful"

noreply@blogger.com (David Spivak) — Thu, 05 Dec 2013 22:36:00 +0000

The following article was published by Law 360:

NLRB Says Realty Co.'s Employee Class Waiver Is Unlawful

By Kelly Knaub

Law360, New York (December 05, 2013, 5:08 PM ET) -- A National Labor Relations Boardadministrative law judge found Wednesday that a California-based realty company’s mandatory employment documents for new and existing employees, which included an arbitration agreement containing a class waiver, violated federal labor law under D.R. Horton.

Nijjar Realty Inc. had argued that a lawsuit filed against it in California court by an employee for unfair labor practices relating to the enforcement of a Comprehensive Agreement and Applicant’s Statement of Agreement — which contained provisions precluding employees from participating in collective and class litigation — should be dismissed because it was grounded on events that predate the six-month limitations period.

Former maintenance worker Gerardo Haro, who signed the documents in December 2011, filed a class action against Nijjar in June 2012, alleging the company required new and existing employees to sign the documents since on or about April 26, 2012, in violation of the National Labor Relations Act. The company, which filed a petition to compel arbitration in December 2012, claims there is no showing it required any employees to sign the forms or that it actually hired any employees after that date, and argues the complaint was time-barred under Section 10(b) of the act.

A Los Angeles superior court judge severed and stayed the Private Attorney General Act claims brought in the suit and ruled to compel arbitration of Haro’s and all other claims on an individual basis. But NLRB Administrative Law Judge Williams Nelson Cates found that the claims brought by Haro were not time-barred and that the company had, in fact, violated the NLRA.

“By enforcing the arbitration provisions set forth in the Comprehensive Agreement and Applicant’s Statement and Agreement by asserting them in litigation brought against the company in Gerardo Haro Guadarrama v. Nijjar Realty Inc. et al. by filing a petition to compel plaintiffs to individually arbitrate their classwide wage and hour claims against the company, the company has engaged in unfair labor practices affecting commerce,” Judge Cates said.

According to the NLRB decision, Haro, who worked at the company from September 2011 until January 2012, was required to fill out a second job application and the CAASA forms on Dec. 29, 2011. Both of his supervisors told him and up to 20 other maintenance workers that they were required to fill out the documents or would not be paid, and he was not informed when he signed the documents that there was an “opt out” box on the forms, according to the decision. The employee, whose first language is not English, said he did not understand the documents he signed, the decision says.

Nijjar had argued that the opt-out provision of the CAASA forms, which allowed employees to entirely opt out of the waiver relating to the right to bring class and collective actions, rendered the waiver lawful, but the judge disagreed with that contention.

“I find, the ‘opt out’ provision of the CAASA employment forms does not render the waiver of class and collective action voluntary; but, rather unlawfully burdens employees requiring them to prospectively trade away their statutory right to engage in collective or class actions, including litigation in any forum, that may arise in the future,” Judge Cates said.

The judge's recommended order states that Nijjar stop its mandatory uses of the CAASA, stop enforcing such agreements by filing petitions to compel individual arbitration in court, and stop interfering with employees exercising their right under the NLRA.

It also recommends the company withdraw its petition to compel individual arbitration in the Haro case within seven days; reimburse Haro for all legal and other expenses incurred; rescind, modify or revise the CAASA to ensure its workers know the forms do not contain a class waiver; notify them of the new forms; and post copies of the notice within 14 days at its California locations.

The board will adopt the findings, conclusions and recommended order if Nijjar does not file any exceptions.

“We’re very pleased with the decision, and we hope that the full board adopt it,” David Spivak, attorney for plaintiffs, told Law360 on Thursday. “These workers are all low-wage Spanish speakers, so without the class action vehicle, they really don’t have any hope of a remedy.”

Representatives for Nijjar did not immediately return a request for comment.

Nijjar is represented by Atkinson Andelson Loya Ruud & Romo.

Haro is represented by Walter L. Haines and David G. Spivak.

The case is Gerardo Haro Guadarrama v. Nijjar Realty, Inc., case number BC487199, in the Superior Court of the State of California, County of Los Angeles.

--Editing by Edrienne Su.

Saudi Princess Goes To Jail For Violating Rights Of Domestic Workers

noreply@blogger.com (David Spivak) — Mon, 29 Jul 2013 16:51:00 +0000

The LA Times reports that Meshael Alayban, a Saudi royal princess accused of human trafficking for allegedly forcing a Kenyan woman to work for her as a domestic servant, will be back in court Monday morning: According to prosecutors, Alayban forced the Kenyan woman to work 16 hours a day, seven days a week, for $220 a month. The woman could not leave Alayban’s Irvine summer home because her passport was kept in a safe deposit box at a local bank, prosecutors said. The LA Times further reports that while Americans were outraged by the mistreatment of domestic workers, their working arrangement is fairly commonplace in other parts of the world.

In view of Princess Alayban's alleged violations of international laws against slavery and human trafficking, it wouldn't be a stretch of the imagination to suspect that she failed to comply with California wage laws, too. Those laws were recently discussed by a California appellate court that considered the rights of certain workers who live at their place of work. In Tim Mendiola v. CPS Security Solutions, Inc., a security company required its guard employees to spend the night at their assigned jobsites in trailers provided by the company. It also required them to remain "on call" during these nighttime periods to investigate alarms and other suspicious circumstances and to prevent vandalism and theft. However, the employer only compensated the guards for the time they spent actively conducting investigations. The court concluded that this was not good enough. It ruled that the employer must compensate the trailer guards for the nighttime hours spent on the jobsites during the week. The court further held that the employer can only deduct eight hours of sleep time from wages when it required the guards to work 24 hour shifts on the weekends.

Princes Alayban's workers apparently had passports, but it is important to remember that even undocumented workers have rights to wages for work they have performed. The US Fair Labor Standards Act protects undocumented workers. While another law, the US Immigration Reform and Control Act, prohibits hiring such workers, the FLSA still ensures their right to certain minimum wages for their work. Under California law, such workers are entitled to all protections, rights, and remedies available under state law and there are limitations on even inquiring about a worker's immigration status should she bring her wage claims to court.

California's Wage Order 15 spells out the rights of domestic employees. It covers "all services related to the care of persons or maintenance of a private household or its premises by an employee of a private householder. Said occupations shall include but not be limited to the following: butlers, chauffeurs, companions, cooks, day workers, gardeners, graduate nurses, grooms, house cleaners, housekeepers, maids, practical nurses, tutors, valets, and other similar occupations." For such employees who live at the residence where they are employed, the employer must generally afford them at least 12 consecutive hours free of duty during each workday of 24 hours. An employer must pay time and one half the employees regular rate of pay for all hours worked during the 12 consecutive duty free hours. The Wage Order prohibits an employer from forcing a live in employee to work more than five days in any one workweek without a day off of not less than 24 consecutive hours except in emergencies. Otherwise, the employer must pay time and one half for such additional work. Time worked in excess of nine hours on the sixth and seventh workdays shall be compensated at double the employee’s regular rate of pay.

Let's just hope that Princess Alayban's domestic workers find a good lawyer to enforce these and other laws against her and obtain just compensation for their hardship.

Did the President sexually harass the California Attorney General? No, but when do compliments rise to the level of sexual discrimination?

noreply@blogger.com (David Spivak) — Sat, 06 Apr 2013 22:03:00 +0000

The Huffington Post reported on April 6, 2013 that California State Attorney General Kamala Harris accepted President Barack Obama's apology for referring to her as "by far the best-looking attorney general." Commentators have characterized what some may view as an innocent "compliment" of a long-time "friend" as sexist, yet did the President's comment rise to the level f a sexually hostile work environment? Of course net. However, here are some considerations on the subject of sexual harassment that this incident brings to mind.

The California Fair Employment and Housing Act (FEHA)
defines sexual harassment as harassment
based on sex or of a sexual nature; gender
harassment; and harassment based on pregnancy, childbirth, or related medical conditions.
The definition of sexual harassment includes
many forms of offensive behavior, including
harassment of a person of the same gender
as the harasser. The following is a partial list of
types of sexual harassment:
• Unwanted sexual advances
• Offering employment benefits in
exchange for sexual favors
• Actual or threatened retaliation
• Leering; making sexual gestures; or
displaying sexually suggestive objects,
pictures, cartoons, or posters
• Making or using derogatory comments,
epithets, slurs, or jokes
• Sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an
individual; or suggestive or obscene letters,
notes, or invitations
• Physical touching or assault, as well as
impeding or blocking movements

Can compliments be "harassing?" Even well-intentioned compliments by coworkers or supervisors may rise to sexual harassment if a reasonable victim of the same sex as the plaintiff would consider the comments sufficiently severe or pervasive to alter a condition of employment and create an abusive working environment, applicable cases say. Friends can say things to each other that may be viewed as harassment between strangers. If the friends make such comments to each other regularly, they in essence consent to the comments. Under California and federal law, consent generally inhibits a claim of sexual harassment.

The context of the comment must also be taken into consideration. The President was speaking to guests at a fund-raiser. This may or may not be considered the workplace or a professional setting under State employment laws that do not forbid conduct in private settings that take place outside of the workplace. However, sexual misconduct that takes place outside of the workplace may be illegal sexual harassment for a which an employer can be held liable if the employer had control over or sanctioned the situation.

Mr. Obama's comment was made in the presence of many other people. Had the comment been offensive, it could become all the more embarrassing based on a large number witnesses hearing it, especially because the target of the comment, Ms. Harris, was present as well.

Was the comment based on Ms. Harris's gender? This blogger doubts that the President ever referred to Mitt Romney as "by far my best-looking opponent in the presidential race" or Joe Biden as "by far the best-looking vice president." If the President would not have made such a comment to a man in a similar setting, the gender of the comment's subject may have been the reason for the comment.

Even if Ms. Harris found this comment to be inappropriate (highly likely, since the President offered her an apology for it), it is unlikely that a comment such as this could form the basis of a sexual harassment claim by itself. Also, the employee would be unlikely to have any damages to justify a court action. Isolated comments such as these do not rise to the level of a sexually hostile environment, even though they may create a sexually hostile work environment when combined with sexually driven conduct in the workplace.

Do other Attorneys General have reason to be concerned. Probably not, since the President doesn't employ or supervise them. However, in California, an employee may bring a cause of action for sexual harassment against her employer for its failure to prevent sexual harassment by customers, vendors, agents and other third parties if the employer knew or should have been aware of the harassment and failed to take appropriate corrective action. An employee, on the other hand, may bring a claim for sexual discrimination in California if she can prove that a supervisor selected a coworker for special treatment because of the supervisor's sexual attraction or relationship with the coworker, so a California case states.

In view of these considerations, it may be wise to keep certain compliments to oneself. Just sayin', Mr. President.

Working in the USA is no vacation.

noreply@blogger.com (David Spivak) — Wed, 23 May 2012 14:41:00 +0000

According to a recent report published on CNN, the United States lags behind most other developed countries when it comes to vacation days...and Americans don't seem to mind. Perhaps they should...at least if they work in California.

"Unlike many other nations," CNN reports, "the U.S. does not require companies to offer paid time off to workers." However, in California, many employers offer vacation pay as a benefit with good reason: Such benefits attract talented people to work for them instead of their competitors.

Unfortunately, many such employers deny their employees the right to use the vacation time during employment. Worse still, many of these same employers implement "use it or lose it policies" which bar employees with unused vacation pay from receiving such pay on termination of employment. Such policies violate Labor Code § 227.3. Under this statute and the cases that have interpreted it, all vested vacation must be paid as wages at the employee's final rate of pay at termination. This may include unused floating holidays, personal days, floating birthdays, paid time off (PTO), and similar forms of time off with pay. The CNN report states, "About 57% of working Americans had unused vacation time at the end of 2011, and most of them left an average of 11 days on the table - or nearly 70 percent of their allotted time off, according to a study performed by Harris Interactive for JetBlue. Employers certainly aren't complaining." And why should they? Especially if they aren't paying it out as California law requires at time of an employee's termination. CNN reports that such employers profit from employees who forego (or are denied) their vacation time. The study results CNN reported on determined that many employees are afraid to "take time off in an unstable job market -- not surprising when the unemployment rate is still above 8%." Regardless, an employer must pay its employees for vacation pay they earn but do not use by the time the employment relationship concludes.

Also, many employers won't recognize that fact that you earn vacation pay as you work, paycheck by paycheck. In other words, if your employer promises you five days of vacation pay per year, you earn a portion of those vacation days with each pay period in which you work. Employers who deny such "accrued" vacation pay to their employees by setting an arbitrary future date for all of the vacation pay to "vest" violate the California law.

So, if your employer prevented you from using your vacation pay during employment, make sure you receive such pay at termination. If you don't, contact an employee rights attorney to discuss your options. Such options may include a class action lawsuit for unpaid wages, monetary penalties, attorneys' fees and costs.

Court awards aggrieved employees over $350,000.00 in civil penalties for corporate agent's violations of overtime, minimum wage and meal period protection laws

noreply@blogger.com (David Spivak) — Fri, 27 Apr 2012 23:26:00 +0000

APRIL 23, 2012, LOS ANGELES, CA - At the conclusion of a hotly contested trial, the Honorable Ronald Sohigian of the Los Angeles Superior Court awarded the Plaintiffs and other aggrieved employees in excess of $350,000.00 in civil penalties, including unpaid wages, for violations of the overtime, meal period and minimum wage protections of the California Labor Code. Employee rights attorneys David Spivak and Louis Benowitz represented the Plaintiffs and the aggrieved employees in this representative action.

The Plaintiffs are two employees of Romano's Jewelers, a chain of jewelry stores throughout southern California. The Plaintiffs had originally proposed the lawsuit as a class action against RJ Financial, Inc., a corporation doing business as Romano's Jewelers. When the corporation filed for bankruptcy protection in the wake of the lawsuit, the Plaintiffs added Ramil Abalkhad as a defendant. Also known as "Randy," Mr. Abalkhad is the sole owner, officer, and director of the chain and, at times, did business as "Romano's Jewelers." He exercised direct control over the working conditions of the employees, including requiring them to work through meal periods.

The Plaintiffs, who sued on behalf of themselves and other aggrieved employees in this private attorney general action, contended at trial that Mr. Abalkhad was responsible for underpayment of substantial overtime and minimum wages to sales associates and other employees, among other things. The proved the violations with Defendant's own time, attendance and payroll records.

Abalkhad argued at trial that he could not be held liable for the violations since he is not "an employer." The Court rejected this argument, finding that even agents of corporate employers may be ordered to pay civil penalties, including unpaid wages, if they are responsible for violations of California's wage and hour laws. The Court found support for its position in California Labor Code sections 558 and 1197.1. Several federal district courts have followed this approach in the decisions of Ochoa-Hernandez v. Cjaders Foods, Inc. (ND Cal.) 2009 U.S. Dist. LEXIS 42481, Ontiveros v. Zamora (ED Cal.) 2009 U.S. Dist. LEXIS 13073, Machado v. M.A.T. & Sons Lanscape, Inc. (E.D. Cal. 2009) 2009 U.S. Dist. LEXIS 63414, and Martinez v. Antique & Salvage Liquidators, Inc. (ND Cal.) 2011 U.S. Dist. LEXIS 19198.

The Court also determined that Abalkhad had violated the employees' rights to meal periods under the California Supreme Court's long-awaited decision in Brinker v. Superior Court (Hohnbaum), handed down on April 12, 2012. The Court previously ruled that the Plaintiffs' claims could proceed on a representative basis even if they had not sought to have the case certified as a class action. This may be the first lawsuit of its kind tried to a successful conclusion under the Labor Code Private Attorneys General Act of 2004, Labor Code sections 2898, et seq., also known as the PAGA. In the aftermath of successful corporate efforts eliminate consumer and employee class actions, the PAGA may become one of the only effective tools available to employees whose rights in the workplace are violated by unscrupulous corporate officers and directors. As California Supreme Court Justice Carlos Moreno noted in the 2005 decision, Reynolds v. Bement

The exploitation of such vulnerable workers by unscrupulous individuals hiding behind the corporate form takes place against a backdrop of diminished public resources for the enforcement of the state's labor laws. The Legislature itself has acknowledged this problem in the uncodified portions of section 2698, the Labor Code Private Attorneys General Act of 2004 (the Private Attorneys General Act), wherein the Legislature states: "Staffing levels for state labor law enforcement agencies have, in general, declined over the last decade and are likely to fail to keep up with the growth of the labor market in the future." (Stats. 2003, ch. 906, § 1, subd. (c).) This recognition was, indeed, a spur to the enactment of the Private Attorneys General Act which, in time, may provide workers with a mechanism for recovering unpaid overtime wages through private enforcement of section 558, which authorizes civil penalties for violations of the wage laws that include unpaid wages from "any employer or other person acting on behalf of an employer," a phrase conceivably broad enough to include corporate officers and agents in some cases. (§ 558, subd. (a).)

The Plaintiffs intend to apply to the Court for an award of attorney's fees and costs and distribute the civil penalties to the current and former employees of Romano's Jewelers and the California Labor & Workforce Development Agency as soon as possible. It remains unknown whether Mr. Abalkhad will appeal or seek some other form of relief from the Court's decision.

Further information on the case may found by at the LA Superior Court's website (see case no. BC430633) or by contacting David Spivak at david@myworkmywages.com or toll free at 877-277-2950.

Taking a break from work is good for you. What a surprise.

noreply@blogger.com (David Spivak) — Mon, 19 Mar 2012 05:32:00 +0000

As the justices of the California Supreme Court ponder the nature of an employer's duty to provide meal and rest breaks to hourly workers in their review of Brinker Restaurant v. S.C. (Hohnbaum), they are no doubt considering the health and safety concerns from which the break laws originate. On July 20, 1999, California Governor Gray Davis signed into law the “Eight Hour Day Restoration and Workplace Flexibility Act of 1999” which went into effect on January 1, 2000. In addition to requiring overtime pay for work performed in excess of eight hours in a workday, the Act codified the right to a meal period (already required by Industrial Welfare Commission Wage Orders) and also required a second meal period for workdays over 10 hours. In so doing, the Legislature acknowledged numerous studies that have linked long work hours to increased rates of accident and injury. Recent studies continue to bear out the health benefits of taking a break. On March 7, 2012, an article in Reuters summarized the results of a study in the journal Diabetes Care: "Breaks to get up and move good for health." To quote the article, "Taking a break to walk every 20 minutes instead of staying seated for hours helps reduce the body's levels of glucose and insulin after eating, according to a study --the latest to highlight the hazards of long periods of inactivity." It is unlikely that the health benefits of breaks from work are news to anyone. However, many employers in California still require their employees to toil at their desks for hours on end without breaks. When employees challenge such practices in Court, they aren't doing so to enforce arbitrary, draconian laws (as many employers faced with lawsuits would have us believe). Rather, they fight for rights which are basic to health and safety.

noreply@blogger.com (David Spivak) — Thu, 23 Feb 2012 18:04:00 +0000

Welcome to the California Employee Rights Attorney Blog.
Be sure to check back often for information and news regarding your California employee rights.

Thank you
The Spivak Law Firm