Author Archives: BraniganRobertson

September 30, 2014 · 2:44 pm

Case Update: The 9th Circuit Sides with Employees in an Employee vs. Independent Contractor Dispute

In Alexander v. FedEx Ground Package System Inc, former FedEx drivers from California and Oregon filed lawsuits against FedEx alleging they are owed unpaid wages under state and federal law. In August of this year, the 9th Circuit Court of Appeals reversed a lower court ruling and approved the lawsuits to move forward holding that the former FedEx drivers were in fact employees, and not independent contractors.

Alexander discusses the differences between employees and independent contractors, and the different rights and entitlements of these two groups under state and federal laws. Simply put, FedEx argued that the drivers were independent contractors and therefore not entitled to the protections and unpaid wages the group was alleging whereas the drivers argued that they were employees of Fedex, and therefore were entitled to the protections and unpaid wages they were alleging.

Independent Contractor Misclassification Standards

In determining whether workers are either employees or independent contractors, both Federal and California courts will look at a number of factors, including, but not limited to: the employer’s right to control the manner and means of the employee’s performance, the employee’s skill required to do the job, who provides the equipment and materials required to do the job, whether compensation is by time or per diem, whether the parties believe they are creating an employment or independent contractor relationship, length of time for which the services are to be performed, and whether the service rendered is an integral part of the employer’s business. It should be noted that this list is not exhaustive, it is just some of the factors courts will consider in determining whether a worker is an employee or independent contractors. The importance and weight given to each factor depends on each circumstance. But the courts often find the right to control the manner and means of the employee’s performance as the most important factor to consider.

The case held that the drivers were employees, not independent contractors. In deciding this, the Court noted a variety of factors which led to its ruling that the FedEx drivers were employees. The Court noted that the drivers wear FedEx uniforms, drive FedEx approved vehicles, and are told where and when to deliver packages. In this case, the 9th Circuit placed substantial weight on the employer’s right to control the manner and means of employee’s performance. Essentially, because the drivers were told how to do their job, specifically what hours to work as well as when and where to make deliveries, the drivers constituted employees, not independent contractors.

At the end of the day, this is a huge win for laborers. Even though a laborer may be classified as an independent contractor, he or she may nonetheless pursue damages for unpaid wages if their job description and duties can be described as an employee. Alexander v. FedEx Ground Package System Inc. clarifies that if a laborer categorized as an independent contractor is performing as an employee, then he or she can still allege damages for unpaid wages as if he or she was an employee.

If you need assistance figuring out whether you are properly classified, contact an employment lawyer today.

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September 1, 2014 · 10:43 am

The EEOC Releases New Guidance Regarding Pregnant Employees

On July 14th of this year, the Equal Employment Opportunity Commission (the “EEOC”) issued new enforcement guidance on pregnancy discrimination in the workplace. Among other things, the guidance addresses when an employers’ actions constitute unlawful discrimination on the basis of pregnancy, childbirth or related medical conditions; obligation of employers under the Pregnant Discrimination Act (“PDA”) to provide pregnant workers equal access to benefits of employment; and how Title I of the American with Disabilities Act (“ADA”) was amended to broaden the definition of disability to include individuals with pregnancy-related impairments. Both the PDA and the ADA apply to private and state and local government employers.

The EEOC is part of the federal anti-discrimination legal landscape. California has additional laws that provide equal (and in many cases) and stronger discrimination protection. But the CA laws are modeled off of the federal laws so it is important that CA lawyers are aware of any EEOC changes.

The PDA states that discrimination based on pregnancy, childbirth or related medical conditions is a prohibited form of sex discrimination, and the PDA requires that employers treat women who are pregnant or affected from related medical conditions the same way the employers would treat non-pregnant applicants or employees. The EEOC’s July 14th guidance regarding pregnant employees clarifies this as the guidance focuses on employers’ obligation to provide pregnant employees equal access to benefits such as leave, light duty (or work with accommodations) and health benefits.

In the past, employers and the EEOC have struggled with applying the appropriate forms of leave of and treatment for pregnant employees. The new guidance addresses these problems. In the guidance, the EEOC states that pregnant employees and pregnant job applicants are not excluded from the ADA’s protection, and thanks to ADA amendments in 2008, changes to the definition of disability make it much easier for pregnant employees to show they have disabilities and thus are protected under the ADA. The guidance also states that pregnancy-related impairments are ADA covered disabilities if they substantially limit one or more major life activities (for example, walking, standing, lifting, etc.), as well as substantially limits major bodily functions.

Ultimately, the EEOC’s guidance on pregnant employees entitles employees with pregnancy related impairments to ADA accommodations even if the impairments are temporary. In addition, through this guidance, the EEOC take on the position that the PDA entitles pregnant employees to reasonable accommodations in the workplace. This is a huge win for pregnant employees in the workplace.

However, it should be noted that the EEOC’s guidances are not binding law and do not have the strength of the laws and regulations. But, as seen in the use of them by the courts, the guidances form the foundation for the EEOC’s enforcement efforts and basically act as persuasive authorities to the courts. Employers should strongly consider taking steps to safeguard themselves in light of this newly released guidance. The last thing an employer should want is to oppose a pregnant employer in a jury trial – especially one that is represented by the best employment lawyer in California.

 

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July 14, 2014 · 2:00 pm

Whistleblowers May Still be Protected Even If They Are Not the First to Report a Violation

Under California Labor Code Section 1102.5, an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation, or where the employee has reasonable cause to believe that the information discloses a violation of state or federal law, rule, or regulation. This is one of the potent whistleblower laws in California.

In other words, an employer cannot retaliate against an employee (whether it be, among other things, termination, decrease in hours, suspension, etc.) who reports internal illegal activity to either a government body such as the police or to his or her supervisor. This law applies to just about any employer in California. But what if the employee is not the first to report a violation? What if he or she is the second or even the third employee to report a violation?

First Whistleblower?

In an unpublished California case, an unnamed deputy informed Deputy Sheriff Hager of crooked deputies within the department. The information suggested that another deputy was involved in an illegal drug dealing scheme and was also involved in the disappearance of another deputy. Hager reported this information to his superiors. He was placed on a task force to investigate the drug dealing allegations, but Hager was expressly ordered not to investigate the disappearance of the deputy. However, during the investigation, Hager discovered information regarding the deputy’s disappearance from wire tapped informants. He reported the information to his superiors. The department later fired Hager because he carried out an unauthorized investigation. Hager sued for unlawful whistleblower violations.

The county argued that Hager’s report was not whistleblowing because another deputy already reported the same information to the department before Hager. The court disagreed with the county’s argument. The court held that an employee who reports violations (whether it is reported to a government agency or a person with authority over the employee) that were previously reported by another employee are still protected from retaliation under Labor Code Section 1102.5. The court reasoned that to adopt a rule that only protects the first employee who reports violations would be against public policy. If the court adopted a “first report rule,” then employees would be discouraged from reporting violations out of fear another employee has already done so. However, the court pointed out that their holding does not apply to employees who report publically known and well-known information as this still does not constitute whistleblowing.

Implication for CA Whistleblowers

So what does this mean for employees in California? It provides employees more protection when it comes to whistleblowing. Employees who report violations after the same violation has already been reported may still constitute whistleblowing. This is also the rule under federal law. Although this is not binding California law because it is from an unpublished case, it nonetheless shows that California may very well be heading in the direction of adopting the federal rule, and it also may show how California courts may rule in similar issues in the future. If you feel like you need to consult with a employment attorney about a employment situation, contact our office today.

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July 2, 2014 · 4:28 pm

Case Update: California Supreme Court Holds Waivers of Representative Claims under California’s Private Attorneys General Act Unenforceable

On June 24th of this year, in Iskanian v. CLS Transportation Los Angeles, LLC, the California Supreme Court upheld the enforceability and validity of an employer’s use of class action waivers in arbitration agreements between the employee and the employer. However, this decision does not completely destroy the possibility for employees to take action against their employer. In the same case, the Court also upheld that an arbitration agreement which waives employees’ representative actions under California’s Private Attorneys General Act (also known as PAGA) is unenforceable under state law.

Private Attorney’s General Act

Before we get into what this decision means for employees, let’s discuss PAGA. Under PAGA, an employee is authorized by the state to bring an action against his or her employer and recover penalties on behalf of the state for the employer’s state law violations. Essentially, the employee is acting in the interest of the state. If penalties are awarded, seventy-five percent of the penalties go to the state and the employee keeps the remaining twenty-five percent of the penalties. This is unlike the usual class action suits in which all of the penalties are awarded to the employees.

Representative Actions Unenforceable

While Iskanian held that an arbitration agreement is generally enforceable, the Court held that an employer cannot force the waiver of an employee’s representative PAGA claims. The Court reasoned that such a waiver would be against public policy as it is important that employers be held accountable for state law violations. The Court’s decision stalls employers’ efforts to avoid employee class action lawsuits. This is because a waiver of PAGA claims will most likely not be enforced in a California court, and if the class action waiver includes language discussing a waiver of PAGA claims then there is a possibility a California court would find the entire arbitration agreement unenforceable.

As discussed above, PAGA claims may be less compelling for employees to pursue than class action claims because seventy-five percent of the recovery under PAGA claims goes to the state, but the penalties can potentially be considerable. Thus, the decision in Iskanian should give those employees who have signed arbitration agreements hope because employees can still pursue penalties in court if class action claims are not possible. Finally, there are a few perks when an employee files a PAGA claim. Unlike class action lawsuits, the employee in a PAGA claim does not need to meet the typical class certification requirements (which can often be difficult obstacles to overcome) because fellow employees do not need to be added into litigation as one employee can represent all of the harmed employees. In addition, the employee does not need to share his twenty-five percent cut of the penalty.

If employees are seeking to take action against their former employer, they should not lose hope just because they signed a class action waiver. If an employer violated state law, there is still a good chance the employee can ensure that the employer is not only held accountable for violating the law, but also can ensure that he or she receives the proper damages that is owed to him or her. Contact an experienced employment attorney for more information.

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May 29, 2014 · 1:35 pm

Case Law: Khajavi v. Feather River Anesthesia Medical Group – Whistleblower Protection for Doctors

Attorney Case Law Update: Khajavi v. Feather River Anesthesia Medical Group – California Court of Appeal. Branigan Robertson is a California employment lawyer who focuses his practice on healthcare whistleblowers, wage and hour issues, sexual harassment, retaliation, and wrongful termination. Contact the firm for a free consultation.

Facts of the Case:

While prepping a patient for anesthesia, Dr. Khajavi noticed that the patient had an irregular heartbeat which increases the risk of stroke to a patient during and after surgery. Dr. Khajavi asked the surgeon about the patient’s irregular heartbeat and the surgeon told him that it was nothing new and the patient was being treated for it. Relying on this, Dr. Khajavi proceeded with administering the sedative.

Before the surgery began, Dr. Khajavi spoke with the patient’s regular physician, who informed him that the patient had not been treated for an irregular heartbeat and directed Dr. Khajavi to cancel the surgery.

Dr. Khajavi and the surgeon had a heated argument as the surgeon wanted to proceed with the surgery and Dr. Khajavi did not was to proceed with the surgery. Dr. Khajavi refused to attend the patient during surgery as it was not in the best interest of the patient to proceed with the surgery. The surgery was canceled as there was no other anesthesiologist to monitor the patient.

Four days following the incident, Dr. Khajavi was terminated. Shareholders told Dr. Khajavi that the incident was one of the main reasons for his termination. Dr. Khajavi filed a lawsuit asserting that the hospital, had violated Business & Professions Code § 2056 which protects doctors from retaliation for advocating for medically appropriate care.

Continue reading “Case Law: Khajavi v. Feather River Anesthesia Medical Group – Whistleblower Protection for Doctors” »

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Filed under Health Care, Whistleblower

April 3, 2014 · 12:02 pm

Why Are the Employees of this French Company Killing Themselves? Orange France Telecom

Employment lawyers hear about employee abuse every day. Generally, abusive environments are created at a company when the executive staff sets unrealistic expectations and goals and then hires overzealous and immature middle management to execute.

This environment empowers rogue managers and department heads with enormous egos to feel that they must treat their subordinates poorly in order to succeed. This can range from hostile work environments to rampant sexual harassment.

Sadly, Orange, a French Telecom company employing about 100,000 people seems to have done this worse than most. It appears that the company, as a whole, has instilled a culture so bad that employees are literally committing suicide to escape. For the past several years, employees at Orange have committed suicide at a much higher rate than the national average. According to the Irish Times:

The company’s former boss Didier Lombard resigned after 35 employees took their own lives between 2008 and 2009.

He was lambasted and forced to apologise after suggesting suicide was a “fashion” at the company. In 2012, Mr Lombard was put under formal police investigation accused of installing “brutal management methods” that amounted to “moral harassment”.

Le Parisien published an internal company document from 2006 in which Lombard allegedly told directors he was determined to cut 22,000 jobs, adding “I’ll do it in one way or the other, by the window or by the door.”

Mr Lombard denied that his methods were the cause of the deaths. He remains under investigation. An official report by the works inspectorate in 2010 blamed a climate of “management harassment” it said had “psychologically weakened staff and attacked their physical and mental health”.

CNN has also covered this employment story. It appears that this company has a brutal culture and hostile management.

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March 13, 2014 · 6:12 pm

Case Law: Fahlen v. Sutter Central Valley Hospitals

Attorney Case Law Update: Fahlen v. Sutter Central Valley Hospitals – California Court of Appeal. Branigan Robertson is a California labor lawyer who focuses his practice on whistleblowers, overtime issues, hostile work environment, and wrongful termination. Contact the firm for a free consultation.

Facts of the Case

Dr. Mark Fahlen reported to hospital authorities that some of his nurses at Memorial Medical Center failed to follow his instructions. In some instances, he believed that the nurses endangered his patients’ lives. One nurse refused to follow Fahlen’s order to use a defibrillator on a patient. Another disobeyed his order to transfer a patient to intensive care.

The hospital’s COO allegedly blamed Fahlen and helped persuade the group to fire him. The hospital then declined to renew Fahlen’s staff privileges. A judicial review committee of six physicians reviewed the nonrenewal of Fahlen’s staff privileges. They found no professional incompetence and reversed the decision. Then the hospital board reversed the committee. The board found that Fahlen’s conduct was not acceptable and was “directly related to the quality of medical care at the Hospital.” This outcome was reported to the Medical Board of California. Fahlen did not file a petition for a writ of mandate challenging the decision. Instead, he filed this lawsuit, asserting a section 1278.5 claim among others.

One Issue in the Case

Health & Safety Code § 1278.5 is a whistleblower protection law designed to encourage health care workers (not just doctors!) to notify authorities of “suspected unsafe patient care and conditions.” I’ve written about this powerful Health & Safety Code statute before.

Continue reading “Case Law: Fahlen v. Sutter Central Valley Hospitals” »

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Filed under Health Care, Whistleblower