December 12, 2014

Zillow Sued Over Employment Practices

Online real estate company Zillow is the subject of several lawsuits that allege a hostile working environment. The latest was filed by former Zillow employee Jennifer Young, a 41 year-old single mother with two children. Young was employed at the Irvine, California office as a real estate agent. Recently, she retained the services of a law firm to sue her former employer because of a "pervasive culture of retaliation and harassment … that placed a premium on sales and a shortfall on human decency and basic employment rights."

Fired%2053061626-001.jpgEssentially, Young's claims are related to age discrimination. In her complaint, she alleges that a sales manager once asked her whether or not she was "too old to close." Young also asserts that she was admonished to "try and keep up with us."

Young alleges that her difficulties in the office were exacerbated after she was involved in a car accident that left her injured. Claims in her complaint say that she was forced to stand for several hours at a time and not permitted to sit. In October of 2014, Young's ongoing injuries caused her to seek hospitalization. She reached out to Zillow's human resources department, requesting accommodation for her injuries. However, Young claims that her sales book was assigned to another agent, one who was considerably younger. In addition, the lawsuit alleges that Young was illegally fired for job abandonment when her doctors were not able to provide Zillow with a note explaining her absence when it was requested.

Zillow is the subject of three other lawsuits, each of them relating to the employment practices used at the Irvine location. Company management has already fired two individuals in relation to sexual harassment claims made in one of these suits.

Company representatives released a statement that says in part: "We take any allegation about our workplace very seriously and are investigating these claims." The statement goes on to say that, "Our people are our greatest asset."

Time will tell how Zillow ultimately handles this latest in a string of employment practice lawsuits.

December 4, 2014

We are Always Looking for One or Two More Good Clients . . . Even When Business is Great

One of the questions I hear frequently is about whether we are accepting new clients.

While the short answer is “Yes”, here is some additional information which many people find interesting.

Great%20Fit%20Gears%2039896521-001.jpgOur law firm, Sylvester Oppenheim & Linde is committed to client service and quality legal representation for each and every client. That means that we only accept clients who we feel are a good match for our expertise, experience and areas of practice.

I learned a long time ago that we can’t be all things to all clients, but we can be all things to some clients: and those are the ones we accept and serve in an exemplary manner.

The purpose of this blog is to provide helpful information to anyone who reads it. On our website, you will find another example of our “Be of Service” attitude by reading our Home Page Article “Eleven Questions to ask BEFORE Hiring a Business Attorney”. You will also find a list of our practice areas on that page.

Our clients tell us that they appreciate our honesty, accessibility and guidance. And we appreciate our clients.

Back to the question. The answer is: “Yes, we are always looking for one or two new good clients.” If you have a legal issue, I invite you to call and let’s find out whether we are a great fit for each other. I can be reached at 818-461-8500 or via the Contact form on this page.

Richard Oppenheim

November 25, 2014

Happy Thanksgiving from Sylvester Oppenheim & Linde

We at Sylvester Oppenheim & Linde would like to take a moment to wish our clients, family and friends (including our blog readers), a very joyous and happy Thanksgiving.

Whether you are celebrating with a small gathering, or preparing for what is shaping up to be dinner for a small country, we wish you and yours all the very best.

It also seems appropriate to quote John F. Kennedy.

"As we express our gratitude, we must never forget that the highest appreciation is not to utter words, but to live by them."

thanksgiving.jpg

November 20, 2014

Who Is At Fault and Who Will be Liable in a Lyft Ride Sharing Crash?

Car crashes are common, especially in the automobile-dependent American culture. It's one of the reasons why drivers are required to hold a valid insurance policy. Typically, when a driver is at fault in an accident, their insurance policy covers damage to property and physical injuries that may have been suffered by the policy holder and any other involved drivers.

Insurance%20Sign%2061487280-001.jpgHowever, the rise of ride sharing companies is adding an interesting wrinkle to this model. One of these companies is Lyft, an app based service provider that's found in dozens of cities. It's like a friendlier alternative to taxi services with participating vehicles sporting a fuzzy, bright pink moustache in order to be identifiable. Users download the app, then request a pickup. A nearby driver is summoned, and arrives within minutes to take users to their destination. It sounds straightforward enough, but what happens when things go disastrously wrong?

On November 1, 2014, Lyft driver Shanti Adhikari was providing a ride for Sacramento resident Shane Holland and his boyfriend. It was about 1:25 in the morning. The rain was pouring down. It's easy to imagine that visibility was poor. Adhikari was driving his Toyota Camry at about 65 miles per hour when he spotted a stalled Kia in the middle of the freeway. He swerved to avoid it, colliding with a tree before spinning around and colliding with another tree. Passenger Shane Holland was killed in the crash.

Officials are still trying to figure out who is at fault in the incident. The Kia was first struck by a car that fled the scene. While Adhikari was able to swerve and miss the Kia, other vehicles hit it subsequently. Was Adhikari responsible for the crash that killed his passenger? If so, then Lyft's $1 million insurance policy should take responsibility for any damages. However, the highway patrol may find that the first vehicle that struck the Kia may bear ultimate responsibility. If that driver can be found, their insurance may be forced to pay. However, it is more likely that Lyft's uninsured/underinsured liability coverage will be called upon instead.

With usage of ridesharing services like Lyft and Uber increasing daily, the courts will be called upon to answer more precedent setting questions like the ones to be presented in this case.

November 6, 2014

Chipotle Employees Claim They are Underpaid: Class Action Lawsuits Filed

Restaurant employees are required to work long hours. Running a restaurant begins hours before and sometimes continues for hours after the actual operating hours. In addition, employees are required to attend staff meetings, training sessions and other events. The majority of restaurant employees are paid on an hourly basis. Accordingly, they expect to be paid for all of the time they are required to be at work.

Timeclock%2045269690-001.jpgNew class action lawsuits filed against Chipotle allege that the fast food restaurant skirted the law by not paying employees for all of the hours they were on the job. In the complaints, former and current employees accuse Chipotle of using a device that automatically clocked them out at 12:30 am, even if they were required to keep working past that hour. Moreover, employees allege that they were required to attend various work related functions, but were never permitted to clock in.

Some employees are claiming that they worked as many as 10 to 15 unpaid hours every week while employed by Chipotle. These lawsuits are the latest in a recent trend in which high profile fast food chains have been accused of wage theft. Protests and lawsuits have been lodged against McDonald's, Jimmy John's and Subway thus far. Plaintiffs in the Chipotle matters are asking for unpaid wages at both the regular rate and at overtime rate. They also seek attorneys' fees and interest in a settlement. Unspecified damages are also a component of the proposed settlement terms.

Chipotle has yet to file an answer. A legal representative working for Chipotle issued a statement saying that, "The filing of a lawsuit is nothing more than allegations and is proof of absolutely nothing on its own."

With fast food being a huge industry in the United States that employs thousands of people, it is possible for this case to set a precedent for similar litigation. Chipotle maintains that its policies are in line with state and federal laws that ensure fair treatment to workers. It seems likely that the fast food company will stand its ground and fight back against the claims.

October 31, 2014

Nevada Parents Sue School District Over Failure to Report Bullying

Nevada parents Jennifer and Jason Lamberth thought everything was going well with their 13 year-old daughter, Hailee. She was enrolled as a seventh grader at White Middle School in Henderson. The day that her life came to a tragic end, she had been named student of the month in her math class. She was so excited about the honor that she sent a text message to her parents just after it happened.

Bully%20Stop%20Violence%2053127538-001.jpgA few hours later, Hailee took her own life. Unbeknownst to her parents, Hailee had been suffering bullying for months. Two students, one male and one female, had routinely taunted her. They left notes in her locker and threatening voicemail messages on her phone. They caused her to cry on an almost daily basis. Other students knew that the bullying was taking place. At least one of the incidents had been reported to the Clark County School District's website.

The website contained a page where students and other concerned members of the public could anonymously report instances of bullying. According to law, district officials are required to investigate such reports within 10 days. Part of the investigation is informing the bullied student's parents about the incident.

However, Jennifer and Jason Lamberth say that no such investigation was ever conducted on Hailee's behalf. Because there was no investigation, they never knew that their daughter was suffering daily torment at the hands of fellow students. That's why they are now suing the school district. They believe that if the district had followed their own policies that Hailee might not have shot herself.

Although the Lamberths are asking for monetary damages, no amount is disclosed in court documents. The parents say they cannot put a price on the life of their daughter. Instead, the lawsuit is a means of ensuring that the school district comes up with adequate policies to deal with bullying and that those policies are strictly followed.

Continue reading "Nevada Parents Sue School District Over Failure to Report Bullying " »

October 24, 2014

Arizona Teacher Fired for Allegedly Defending Student Against Bullies

An elementary school teacher with 24 years of experience has been fired in Arizona. Pamela Aister, who was teaching fourth grade at Four Peaks Elementary School, was fired by officials from the Fountain Hills Unified School District after a bullying incident on the playground.

Fired%2053061626-001.jpgAister was supervising children on the playground when she noticed that a group of students had encircled a single African-American boy. The boy was Malachi Gillis, a 9 year-old who had recently transferred into Aister's class. Gillis had a difficult history at the school. He joined Aister's class after being repeatedly bullied by other students. Although Gillis had reported the bullying to his former teacher, playground aides and other adults, little had been done to rectify the situation.

Gillis alleges that the other students routinely used racial slurs and called him other names. When he could not get help from the grown-ups at his school, he became depressed. Eventually, he was moved to a different classroom, but the bullying didn't stop.

What changed was that Aister stood up for her student when she saw him being threatened on the playground. Aister claims that she merely compelled the children to leave Gillis alone, telling them that, "He's not alone anymore. If you're picking on him, you're picking on me." One of the students accused of bullying Gillis reported the confrontation to parents who made a complaint to the district. Aister was fired for allegedly having used threatening language to students.

Aister has hired an attorney to represent her in the matter, although no lawsuit has been filed yet. Meanwhile, they are gathering support for their cause of having Aister reinstated in the classroom by holding press conferences and getting the word out about the situation. Gillis' mother, Jennifer, notes that she may sue the district over the bullying and their refusal to do anything about it.

A Change.org petition has already gathered far more than 100,000 signatures aimed at getting Aister's job back. Nonetheless, the district maintains its position that the well-being of students must always be put first and that Aister violated that trust.

October 17, 2014

High School Principal Alleges Discrimination

Discrimination in the workplace is always a hot topic. Usually, allegations of discrimination are brought by members of a specifically protected group. That's not the case with a recent lawsuit filed in New Jersey.

School%20Bus%2043843684-001.jpgHigh school principal Mae Robinson, who is white, filed the lawsuit because she says she was pressured to nominate minority candidates to fill positions within the school district. Robinson refused to comply on numerous occasions, nominating the most qualified candidates who, as it happened, were not members of a minority group. After losing her post in the school district and being accused of disrupting the organization's affirmative action program, Robinson felt compelled to sue.

Back in 2010, Robinson was the principal at Timber Creek High School. The district was in need of a new vice principal as well as a guidance counselor. In her complaint, Robinson states that she and other district officials were under pressure from then Superintendent John Golden to hire minorities for these positions.

The complaint alleges that Golden asked Robinson and others to "do me a big favor" by hiring a minority candidate. However, Robinson had already made her nomination to the board. The candidate was not a minority, but had all of the qualifications for the role of vice principal. When the board rejected the initial candidate, Robinson nominated the next most qualified individual. However, that person also was not a minority.

The issue came up again when Robinson was called in for her regular performance evaluation in 2012. Golden again reiterated the need for selecting minority candidates. Robinson challenged the idea that any vacancies should be filled by candidates where race or gender was the primary consideration.

The matter has moved on to the courts now that Robinson has filed a lawsuit.

Continue reading "High School Principal Alleges Discrimination " »

October 10, 2014

Energy Drinks Leading to Increased Litigation

Deceptive and misleading advertising, deaths and heart attacks are among the claims in lawsuits filed against energy drink makers.

Energy%20Drinks%2048725117-001.jpgVermont, Washington and Oregon have sued Living Essentials, makers of 5-Hour Energy for “deceptive and misleading" advertising. 5-Hour Energy claims include "hours of energy, no crash later" and apparently Attorneys General of those three states do not agree. It is likely that other states will join and file lawsuits in the near future.

If you bought one or more cans of Red Bull in the last 12 years, and it failed to “Give You Wings”, you may file a claim to receive your settlement of $10 cash or $15 worth of Red Bull products. The makers of Red Bull agreed to a $13 Million settlement with US consumers to settle a class action lawsuit alleging that promises of increased performance and concentration fell short of delivering more effectiveness than a cup of coffee.

The Red Bull settlement is awaiting U.S. District Court approval. Red Bull does not admit any wrongdoing. Watch for settlement application forms online, no proof of purchase is required.

Six adverse reports of energy drinks have been entered into the Food and Drug Administration’s voluntary reporting system. FDA spokeswoman Shelly Burgess states that it is not clear whether the drinks caused or even contributed to the five reported deaths and one reported heart attack. She goes on to say “…that’s why we’re taking this seriously and looking into it.”

Most recently, the family of 14 year old Anais Fournier sued Monster Energy Drinks. Anais died after consuming two 24 ounce Monster Energy drinks within 24 hours. The last one shortly before her death which the autopsy attributed to cardiac arrhythmia due to caffeine toxicity.
48 ounces of Monster Energy contains almost the same amount of caffeine as 14 cans of Coca-Cola, approximately 480 milligrams.

In a statement, Monster said they believed they were not responsible for the girl’s death and would vigorously defend itself.

On a final note, the Attorney General of New Your issued subpoenas in July to Monster, PepsiCo (makers of AMP), and 5-Hour Energy’s Living Essentials. The AG is seeking information about the companies’ advertising and marketing practices.

Bottom line, if any company makes claims in its advertising, it better have proof to back up those claims, preferably before going to court.

Continue reading "Energy Drinks Leading to Increased Litigation" »

September 29, 2014

Virginia Student May Sue a Principal for a Cell Phone Search

A Virginia federal district court recently ruled that a student has the right to sue his high school principal after the school official conducted a search of the student's cell phone.

search%20cell%20phone%2061969338-001.jpgThe student, identified in the lawsuit only as W.S.G., was called into the principal's office on suspicion of marijuana use. Two parents reported use of marijuana on a school bus by a long haired male student. W.S.G. vaguely fit the description given by the parents, so Assistant Principal Robert A. Turpin III and Associate Principal Diane Saunders' called him to Saunders' office.

W.S.G. wasn't certain why he was summoned, but he complied with the principals' search of his pockets and backpack. Turpin also performed a pat down while Saunders reviewed a Vaseline jar and a sandwich wrapper.

The federal district court agrees that school officials were justified in searching these items. However, the judge believes that the principals erred when they searched W.S.G.'s cell phone. Rationale behind the finding concludes that W.S.G. could have concealed marijuana in his pockets, backpack, the Vaseline jar or the sandwich wrapper. However, drugs could not be hidden in the cell phone. In the judge's opinion, Saunders' search of the cell phone was a violation of the student's Fourth Amendment rights.

W.S.G.'s initial complaint made other allegations that the judge does not believe were justified. The defendant alleged a charge of assault and battery based on the pat down he received, an idea that the judge rejects outright. Moreover, W.S.G.'s assertions that the Henrico County School Board was liable for failing to properly train personnel on search procedures were judged to be groundless. The judge pointed out that the defendant had failed to prove a pattern of deliberate indifference on the part of the school board.

Despite the finding that the cell phone search was likely unreasonable, the judge said that Saunders might have had reason to conduct the search if she thought she would find evidence of text messages or other communications regarding a supplier. With the evidence on hand, he could not conclude that she had a proper incentive for the search.

September 19, 2014

NLRB Opinion May Make McDonald's Joint Employers with Franchisees

American business has long relied upon the franchise model. Brands like McDonald's grant individuals a license for the right to use their trademarks and sell their products. McDonald's also gives franchisees marketing plans and operations manuals. The franchisee pays McDonald's agreed-upon fees for use of their business model.

National%20%20Labor%20Relations%20Board%20Logo-001.jpgTraditionally, a franchisor like McDonald's has little to do with day-to-day franchise operations. The owners and managers at the franchise are responsible for hiring, firing and disciplining employees. They make promotional decisions independently, and they determine things like compensation and hours without input from the corporation.

It's a business model that has succeeded for many companies over a span of many years. Now that model is in jeopardy because of a National Labor Relations Board (NLRB) opinion which states that corporations like McDonald's are actually joint employers along with their franchisees. If the opinion is allowed to become policy, then large parent corporations would be just as liable in labor disputes and lawsuits as the franchisee.

Formalizing the concept that a parent corporation is a joint employer could be disastrous and may spell the end of the franchising business model. Franchisors could be held responsible for everything from a patron choking on their meal to an employee alleging discrimination. Legal costs would quickly skyrocket, and corporations could become mired in endless litigation. Franchisors would no longer enjoy the layer of protection from claims that they currently have thanks to the franchise business model. Accordingly, some companies may decide to do away with franchising entirely.

The NLRB's findings are connected to complaints filed by fast food workers who protested the unfairness of their wages. The workers claimed that their rights were violated in retaliation for their protest. Legal counsel for the NLRB decided that the workers' complaints had merit and stated that the franchisor may be named as a co-respondent.

A final determination about whether or not the McDonald's corporation will be considered a joint employer in the matter has not been made. If the corporation is named a co-respondent, it may set a legal precedent for countless legal matters.

September 12, 2014

LinkedIn Settles Lawsuit Over Sales Department Wages

Last month LinkedIn agreed to pay approximately $6 million in overtime to 359 current employees. The settlement is based on investigation by the U.S. Department of Labor finding that the company violated federal wage laws.

Social%20Media%20Compass%2054107999-001.jpgLinkedIn reached a settlement agreement with the Labor Department to pay $3.3 million in retroactive overtime wages and an additional $2.5 million in damages to workers in California, New York, Illinois, and Nebraska. A representative from the government agency reported that LinkedIn has already mailed payments to employees involved in the settlement.

To its credit, LinkedIn acted very professionally, like a good corporate citizen should. The Labor Department reported the company acted responsibly and cooperated fully by working quickly to resolve the dispute and pay back wages owed.

A representative from LinkedIn stated that the wage and hour violations were due to a systemic failure that did not allow their sales team to properly track their hours. The Labor Department’s investigation revealed that the company failed to record and compensate employees for all hours worked. This is not an uncommon violation of the Fair Labor Standards Act (FLSA). In addition to paying the $6 million settlement for unpaid wages, the company is also responsible for training employees and providing education to ensure that all work performed is “on-the-clock”.