Articles Posted in Business Litigation

Published on:

When a new mother returns to the workplace, certain sections of the Fair Labor Standards Act, or FLSA, continue to grant her special protections. Employers that fail to observe these protections may find themselves subject to a costly lawsuit.

Legal-Fees-PaidSuch is the case with the City of Tucson. A recent federal trial court jury’s decision found in favor of a plaintiff to the tune of $3.8 million. The plaintiff, Carrie Clark, was employed by the City of Tucson as a paramedic. Upon returning from maternity leave, Clark needed to be able to express breast milk throughout the day. However, the city assigned her to fire stations that lacked appropriate facilities for meeting this need.

Under Section 7(r) of the FLSA, employers are required to provide break time for nursing mothers to express breast milk. This accommodation must be made for up to a period of one year after the child’s birth. Moreover, employers are required to provide a private, hygienic place, which is not a bathroom, in which the mother can express breast milk away from curious eyes.

The law does not require that employers pay employees for this break time. However, if compensation is provided for such break periods, then it must be paid to the worker.

Section 7(r) is not the most well-known component of the FLSA. Nonetheless, the City of Tucson may now be wishing that they had been more aware of their responsibilities under the law. The jury found that the city appeared to exacerbate the situation by retaliating against Clark when she made repeated requests for adequate accommodations for expressing breast milk.

The April 2019 jury decision found in favor of the plaintiff on all counts. According to the decision, Clark was discriminated against for a pregnancy-related condition. Additionally, because her employer required her to take leave so that she could express breast milk in private and punished her for allegedly “not being in harmony with others,” Clark was awarded further damages.

This case is a stark reminder for employers everywhere to be aware of all facets of FLSA, discrimination and anti-retaliation laws.

Published on:

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 welcome 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” mind-set 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

Published on:

Mike Hestrin, a district attorney in Riverside County, California, recently filed a civil lawsuit against two law firms and at least five individuals. The lawsuit claims that the defendants violated the state’s unfair competition laws by pursuing dozens of lawsuits against businesses within the county.

ADA-138029727-001In the complaint, the plaintiffs detail a “shakedown” in which the attorneys and a plaintiff who is not an attorney pursued more than 100 lawsuits against small business owners in Riverside County. Each lawsuit accused the defendant of violations of the Americans with Disabilities Act, or ADA. According to the district attorney, the lawyers targeted certain small businesses, making misrepresentations in court filings that were designed to elicit a financial settlement from the defendants.

The defendants in the new Riverside County lawsuit include attorneys Babak Hashemi, Joseph Manning Jr., Michael Manning and Craig Cote. James Rutherford, who served as the plaintiff in many of the ADA lawsuits, also is named as a defendant in the lawsuit. In fact, court records indicate that Rutherford has been named as a plaintiff in at least 200 separate ADA-related lawsuits. These civil actions have been filed against small businesses and individuals in Los Angeles, San Bernardino, San Diego and Orange counties.

Defense attorney David Darnell has taken on representation of the defendants in the district attorney’s action. He says that the lawsuit “is completely misguided and without any merit.” Moreover, he argues that “those corporations that were sued did violate the act, and they settled or tried to settle the cases.”

The district attorney’s office states that it “fully supports accessibility rights for disabled persons” and that “the ADA laws are designed to help and protect disabled persons.” However, the office argues that the defendants in the lawsuit acted for the “purpose of illegitimate financial gain” rather than a disinterested effort to ensure compliance with the ADA.

Darnell argues that the district attorney’s case “is an attack on the ADA” because “this is a law they don’t like.” Moreover, he believes that “a reasonable judge” will immediately see their point of view and decide the case in their favor.

Published on:

A recent decision by the Supreme Court of California declares that workers don’t have the right to sue a payroll company with which their employer has a contract. This ruling is a reversal of a decision in a lower court. If that decision had been affirmed, employees would have been empowered to sue payroll companies for tort and breach of contract claims.

Timeclock-45269690-001The case was Goonewardene v. ADP. Plaintiff Sharmalee Goonewardene sued her employer over unpaid wages. Later, her complaint was amended to include Automatic Data Processing, or ADP, which has a contract with her employer for payroll services. Goonewardene alleged that ADP had violated wage orders and the California Labor Code, effectively asserting that she was a joint employee of her employer and ADP.

Goonewardene accused ADP of negligent misrepresentation, professional negligence and breach of contract. However, a trial court dismissed these claims. Goonewardene appealed, and the appeals court decided that she didn’t have the right to sue ADP under the California Labor Code. Nonetheless, the court found that she could sue ADP for other claims such as breach of contract and negligence because she was a third-party beneficiary of the contract between her workplace and ADP. This appeals court opinion made it possible for workers across the state to jointly sue their employer and their employer’s payroll processor.

The Supreme Court of California was called upon to review the case. This court disagreed that the plaintiff was a third-party beneficiary of the contract. The decision was based on the theory that any employer’s agreement with a company like ADP is for their benefit rather than the benefit of employees. Moreover, imposing liability on a payroll services company was judged to be against the expectation of the two parties to the contract.

With this Supreme Court decision, it is clear that a payroll company is not a joint employer with its clients, nor does such a company owe a duty of care to the employees of clients. This is likely to minimize the number of lawsuits that would have proliferated if the appeals court decision had been sustained.

If you are an California employer or business owner with questions about any legal issue feel free to contact me, attorney Richard Oppenheim at 818-461-8500 or via the Contact form on this page.

Published on:

A “Charge of Discrimination” filed by the Department of Housing and Urban Development against Facebook is making waves. In the Charge, HUD accuses that Facebook “unlawfully discriminates based on race, color, national origin, religion, familial status, sex, and disability” when it comes to advertisements for housing.  The document can be viewed HERE.

https://www.californiabusinesslitigation.com/wp-content/uploads/sites/283/2016/05/http.www-51883498-001.jpgThrough Facebook’s ad platform, advertisers are able to target users of the social media service who are most likely to be interested in their goods and services. HUD says that these practices may violate the 1968 Fair Housing Act.

HUD Secretary Ben Carson argues: “Facebook is discriminating against people based upon who they are and where they live.” Calling the practice “as discriminatory as slamming a door in someone’s face,” Carson objects to features on the advertising platform such as toggle buttons that make it possible to include or exclude men or women. There’s also a search box that can be used to exclude individuals who are not fluent in a certain language.

Attributes that advertisers can choose or exclude include accessibility, Hispanic culture, hijab fashion and foreigners. Additionally, Facebook’s advertising platform features a map tool that advertisers use to exclude people living in certain areas from seeing specific ads.

A U.S. Administration Law Judge will be responsible for hearing the case unless one of the parties demands a federal court venue instead. The Administrative Law Judge has the power to award damages in the event that discrimination is proved.

The Charge comes just after Facebook announced that they had reached settlements in nearly half-a-dozen housing discrimination lawsuits. Altogether, the social media company will pay $1.95 million to the plaintiffs in these cases. Settlements in the cases also require that Facebook make massive changes to its ad platform as it relates to advertising for credit, employment and housing.

A Facebook spokesperson is surprised by HUD’s new Charge in light of these recent settlements and the changes that are underway with the ad platform. Legal experts are closely watching the situation to see if HUD is using the Charge to warn others to avoid similar advertising practices that could be used in a discriminatory manner.

Published on:

Agrochemical giant Monsanto, which is now owned by Bayer, is facing a slew of lawsuits based on its popular Roundup weed killer. Roundup contains an herbicide called glyphosate. Critics argue that this herbicide is carcinogenic and responsible for causing numerous cases of cancer.

949759_dollar_signCalifornia plaintiff Edward Hardeman sued Bayer-Monsanto on the grounds that use of Roundup contributed to his diagnosis with non-Hodgkin lymphoma. Hardeman owns property consisting of more than 50 acres. For 25 years, he sprayed the property with Roundup to control poison ivy and other invasive plants. Attorneys estimate that he used 6,000 gallons of the product throughout those years.

When Hardeman was diagnosed with cancer, it didn’t take long for him and his doctors to start taking a closer look at his habitual use of Roundup. Bayer-Monsanto currently is dealing with in excess of 11,000 lawsuits in the U.S., all of which argue that the glyphosate used in the product causes cancer in people.

Recently, a jury agreed with Hardeman’s conclusion that Roundup caused his illness. Their decision is said to be based on scientific evidence, which is in line with another jury decision from last year. In that case, the plaintiff was a landscaping employee with a public school district. The jury concluded that Roundup was responsible for the plaintiff’s terminal illness, awarding him almost $290 million. Eventually, the verdict was reduced to $78.5 million, a decision that is currently on appeal.

In the second phase of the current trial, plaintiffs will have to demonstrate that Monsanto had knowledge of the possibility that glyphosate could cause cancer and they did not provide adequate warnings. Presiding judge Vincent Chhabria unsealed documents that allegedly demonstrate that Monsanto worked to discredit independent scientific research that showed their product was unsafe. Moreover, the documents may indicate that Monsanto executives persuaded officials at the EPA to approve glyphosate contrary to the scientific evidence.

The outcome of this case remains in the balance, as does the outcome of the thousands of similar lawsuits. It seems Monsanto did a poor job of protecting their customers and in doing so failed to protect themselves.

Published on:

A decision in a California lawsuit may have implications for retail employers who require workers to be available for on-call shifts. Under the decision, it may be wise for such employers to consider whether or not their employees are entitled by law to compensation for their time when they are requested to “report to work” by telephone.

clock-overtime-110616811-001Ward v. Tilly’s, Inc. is a class action lawsuit filed by Skylar Ward, an employee of retail chain Tilly’s. The plaintiff alleges that her employer institutes a policy of on-call shifts in which employees are required to call in two hours in advance to ask the employer if they are needed. In the complaint, attorneys argue that such an obligation triggers an employer responsibility to compensate the employee for their time under the California Industrial Welfare Commission’s Wage Orders.

The Wage Orders state that when an employee complies with a requirement to report for work, they are entitled to half of their usual pay or no less than two-hours’ pay. Tilly’s policy stated that employees should assume that they were scheduled to work up until the moment they were told that they weren’t needed. This meant that employees would have to schedule their time as if they were going to be working, leading to arrangements for childcare, giving up social engagements and being unable to schedule academic courses.

Under Tilly’s policy, employees could be disciplined for failing to call in or for refusing to work an on-call shift. Such actions received the same discipline as missing a regularly scheduled shift.

Ward’s complaint was refused by the trial court. An appeal brought the case before the Court of Appeal, which reversed the trial court’s findings two to one. Appeal judges determined that reporting for work under the definition in the Wage Orders means “presenting oneself as ordered.”

The dissenting opinion argued that the Wage Order’s intent applied to the employee’s physical presence at the store. Nonetheless, the outcome of this matter demonstrates the need for employers to review their pre-shift call-in policy to bring it in line with the findings in Ward v. Tilly’s.

If you are an California employer or business owner with questions about any legal issue feel free to contact me, attorney Richard Oppenheim at 818-461-8500 or via the Contact form on this page.

Published on:

When a worker suffers an on-the-job injury, what sort of accommodation is her employer legally required to make to ensure her ability to return to work? The law is deliberately vague on this subject, generally stating that employers must make “reasonable” accommodations. Failing to do so can lead to legal headaches.

Wrongful-TerminationThat’s the case for Dignity Health in California. Dignity manages St. John’s Pleasant Valley Hospital. Virginia Hoover had been working at the hospital for approximately 24 years as a radiologic technologist. In 2014, she suffered an injury to her shoulder while moving some equipment. The hospital granted her a leave of absence for recovery.

By August 2014, Hoover was cleared to return, but she was given limitations. She wasn’t supposed to lift anything heavier than 15 pounds with her non-dominant left arm and she was not permitted to raise that arm above her head. However, Hoover claims that Dignity made no effort to accommodate these restrictions. She was fired in December 2014 after her employer concluded that she couldn’t perform her duties.

Hoover filed a lawsuit against Dignity in 2016. Recently, a jury awarded her just over one million dollars for lost wages and emotional distress. The plaintiff claimed that Dignity had wrongfully terminated her and discriminated against her based on her age. Among the claims, Hoover says that another employee with similar restrictions had been accommodated by the hospital to remain in their position.

Dignity argued that they accommodated Hoover by granting her a leave of absence and then working with her to return to her duties. However, supervisors ultimately concluded that she wasn’t capable of performing the essential functions of her job.

In such cases, the law states that employers must find alternative work for an employee, but no documents from the lawsuit indicate whether or not this was attempted.

If you are an employer and one of your workers gets injured on the job, do you know how to comply with the relevant laws? Failing to do so can result in a costly lawsuit and negative publicity. If you are an California employer or business owner with questions about on the job injuries or any legal issue feel free to contact me, attorney Richard Oppenheim at 818-461-8500 or via the Contact form on this page.

Published on:

Multi-level marketing company LuLaRoe is going through rocky times. Not only is the company’s number of consultants down to fewer than 35,000 after reaching a high of 77,000 in February 2017, but also the organization is facing a massive lawsuit from its chief supplier, Providence Industries.

1504001-Gavel-Money-2The lawsuit was filed in November 2017, with the plaintiff stating that LuLaRoe had failed to pay its bills since May. Initially, plaintiffs sought damages of $49 million based on $34 million in products that Providence sent to LuLaRoe for which they were never paid. The rest of the amount was for storage of other products at LuLaRoe’s request.

Now, Providence has increased their demand to $63 million as the lawsuit drags on. In new filings, they allege that LuLaRoe is quietly liquidating goods. Providence is asking for a writ of attachment to prevent this. Their initial request for such a writ was denied months ago, but this one is supported by the testimony of nine former LuLaRoe consultants, each of whom alleges that they’ve been waiting for months to receive refunds on returned products after giving up their positions as consultants.

To further support their argument, Providence says that the defendant has a history of not paying their bills and that the organization is likely insolvent. LuLaRoe has not commented on these allegations, but Providence asserts that the company’s founders are hiding financial assets in a series of shell companies. Based on comments made by the founders, Providence believes that they may try to leave the country with the funds.

While LuLaRoe makes no comment on the pending litigation, they do appear to acknowledge that things haven’t gone well in the past. Recent social media videos posted by the founders show them talking about a history of flawed products and how they are entering an era of “LuLaRoe 2.0.” They insist that if consultants stay with them, they will see tremendous financial gains.

A business attorney may be able to provide the needed guidance for most new companies. Many potential business problems can be avoided by using an experienced business attorney during early planning and strategizing.

Published on:

Sidecar, a former competitor in app-based ride-sharing services, recently launched a lawsuit against Uber. The complaint alleges that Uber used illegal anticompetitive strategies to drive its rivals out of business so that it could monopolize the industry.

Sunil Paul, who was the CEO of Sidecar, writes on his blog that “It was never a fair fight.” He goes on to argue that customers are now stuck paying higher rates and being forced to choose Uber because of that company’s illegal practices.

scales-and-gavel-90061933-001Uber was established in 2009. At the time, they specialized in providing black-car rides that were summoned via an app. Sidecar began offering paid shared rides in 2012. In their complaint, plaintiffs state that their company fostered many innovations including estimations for trip duration and fares. Uber then launched UberX in 2013, which offered a similar paid ride-sharing service. This soon made up the bulk of Uber’s business.

In the complaint, lawyers note that Uber began engaging in predatory pricing practices in an effort to stifle competition. It’s alleged that the company was subsidizing passenger fares as well as driver payments.

Additionally, Sidecar alleges that Uber engaged in a campaign of fake ride requests, with these requests either being subsequently canceled or being taken by a representative of Uber who would try to convince the driver to switch allegiances. Back in 2014, Lyft made similar accusations against the ride-sharing giant. Those charges were substantiated at the time.

Sidecar shuttered operations in 2015 with its assets and technology being sold to GM. Reports suggest that GM is now using those items to develop a robot-driven taxi service. Meanwhile Uber is looking to go public in the first quarter of 2019. It’s one of the most highly anticipated IPOs to come along in recent years, and Uber executives feel that the timing of the lawsuit is suspicious at best.

After all, it’s been three years since Sidecar ceased operations, so why sue now? It may be that Sidecar’s former executives are hoping to undermine the public offering. Time will tell, but it may be difficult for Sidecar to substantiate its claims.