Articles Posted in Employment Law

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The Employee Retirement Income Security Act, or ERISA, is designed to protect the interests of employees who are benefit plan participants. It does this by guarding retirement savings plans from mismanagement. ERISA also ensures that the individuals who are charged with overseeing the plan act in the best interests of the participants.

ERISA-206785026_XS-e1565728450304However, some of these plans are exempted from ERISA oversight. This includes so-called “church plans.” Under this exemption, employee benefit plans for church employees are not subject to ERISA’s minimum standards. However, it isn’t always entirely clear which plans are exempted and which are not. This is true of hospitals that are associated with a religion.

Dignity Health is a healthcare conglomerate that operates in numerous states. It administrates the Dignity Health Pension Plan for its 80,000 employees. Moreover, Dignity Health is associated with the Catholic Church.

Starla Rollins was employed by Dignity from 1986 to 2012, during which time she participated in the Dignity Plan. Rollins and other plan participants sued Dignity under ERISA because it was underfunded. When the complaint was filed, the plan had only enough assets to pay 75 percent of their obligations.

Dignity Health is arguing that their plan isn’t subject to ERISA oversight because it is a church plan. Over the last several years, the Catholic Church has taken over multiple hospitals and other healthcare facilities. Catholic hospitals earn billions of dollars in revenue each year and also receive billions in taxpayer dollars.

However, it is unclear whether or not employees of Dignity Health actually qualify as church employees. Instead, the plaintiffs are arguing that they are the secular employees of a secular health care organization that provides its services through the distant oversight of the Catholic Church.

Rollins’ lawsuit raises a Constitutional objection to the exemption for church plans. This is because Dignity Health has chosen to compete in an industry with other commercial businesses. Thanks to the exemption, Dignity does not have to meet certain costly legal requirements. The outcome of this case may change the way these exemptions are applied to other hospital organizations that are affiliated with religions.

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Fireworks%2039914849-001.jpgThe team at Sylvester, Oppenheim & Linde and the California Business Litigation blog  wish all of our clients, friends, business associates and blog readers a very safe and extremely fun 4th of July Holiday!

In observance of Independence Day our office will be closed  July 4th.

Enjoy your holiday, stay cool and keep your pets indoors!

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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

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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.

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Facebook is facing legal woes as a group of plaintiffs charges the tech giant with making it possible for companies to post employment advertisements in a discriminatory manner. The plaintiffs include the American Civil Liberties Union, a coalition for workers and three women who were seeking employment.

Smart-Phone-with-Apps-48915227-001In addition to Facebook, 10 employers are named as defendants in the complaint. Plaintiffs say that Facebook’s ad-targeting technology made it possible for these employers to direct their help-wanted ads exclusively to men. The jobs on offer included truck drivers, law enforcement officers and sales clerks at sporting goods retailers.

The Equal Employment Opportunity Commission received the complaint, which argues that since an increasing number of job and housing applicants are conducting their searches online, it has been increasingly easy for employers and landlords to engage in discriminatory practices. Under federal law, it is illegal for employers and landlords to discriminate against people based on their race, religion, gender, national origin, disability status or other protected categories.

However, in the online world, it is routine for tech companies to use algorithms that fast-track certain ads to specific users. Facebook excels at “microtargeting” users for certain advertisements. Additionally, the social media platform allows users to click on a link that says “Why am I seeing this?” This feature is actually what prompted lawyers with the ACLU to file the complaint.

Outten & Golden, a Washington, D.C. law firm, performed an experiment in which people used Facebook to search for a job or otherwise indicate that they were engaged in a job hunt. Employment ads for the 10 employers named in the suit were displayed for the male job candidates but not for the female ones. The Facebook users then clicked on the “Why am I seeing this?” link, where it was stated that their gender played a role in the targeting of that particular ad to that user.

This is not the first such complaint that has been lodged against Facebook. An earlier EEOC complaint alleged that Facebook employment ads were targeted to unfairly exclude older employees. Both of these cases are pending.

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Electric car company Tesla has filed a lawsuit against a former employee over what it claims are stolen secrets. Martin Tripp is named as the defendant.

System-Failure-51347065-001Tripp began working for Tesla in October 2017. His job was at the organization’s Nevada battery factory. As a process technician, Tripp was required to sign a non-disclosure agreement like other employees. Supervisors at Tesla began noticing problems with Tripp’s employment after a few months. They allege that Tripp was combative with colleagues and caused disruptions. In May 2018, he was reassigned to another department. The company also claims that this prevented Tripp from getting a promotion that he felt he deserved.

In the complaint, Tesla alleges that Tripp’s reassignment and the denied promotion are what sparked the employee to retaliate. Tripp admitted to internal investigators at Tesla that he wrote a software program that was capable of transferring gigabytes of data to computers outside the company. The data included photographs and videos, and Tesla claims that all of the data was privileged. Tripp is alleged to have placed the hacking software on the computer systems of three other employees so that he could continue to receive data even after he left the company. Additionally, this measure would implicate the other employees in the data theft.

According to the complaint, Tripp then leaked some of the stolen data to the media, combining it with falsehoods such as a claim that punctured battery cells were used in Tesla’s Model 3 car. The company further alleges that Tripp falsified data regarding the amount and value of scrap metal that is generated in the organization’s production processes.

Tesla CEO Elon Musk warned employees in an email about the hacking and the falsehoods that were leaked to the media. He noted that many other entities, like oil and gas companies, “want Tesla to die,” and that this is leading them to investigate whether or not Tripp acted alone.

It is not known if any criminal investigation has been launched, but this situation serves as a reminder of the importance of protecting intellectual property using all legal means available.

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A California law firm is being sued by three of its female associates. The plaintiffs, identified only as “Jane Does,” allege that Morrison & Foerster systematically discriminates against female employees, particularly those who are pregnant or have children.

Gender-Discrimination-105366239-001Representatives for the plaintiffs say they believe the case will become a class action lawsuit once other female associates at Morrison become aware of it. Plaintiffs are seeking approximately $100 million in damages, arguing that the firm pays them less and provides them with fewer promotions when compared with male peers.

The allegations came as a surprise to partners at Morrison & Foerster, a firm that provides several options for accommodating the needs of new parents. Some of these programs include flexible work options, reduced hours, parental transition time and 20 weeks of paid time off for primary caregivers.

However, the plaintiffs say that associates who take advantage of these programs are “set up to fail.” In January 2018, each learned that their peers who were in the same class year had been promoted ahead of them. Additionally, their salaries were no longer the same as their promoted peers. Their external billing rates had been raised, an error that management corrected when they were alerted to the issue.

One plaintiff described her performance review, which occurred during the same month. The plaintiff says that the partner conducting the review essentially informed her that she had not been promoted because she became a mother. She also revealed that her request for flexible scheduling, which would have allowed her to work full time with some of the hours being logged at home, was denied.

Another plaintiff was told that she was required to work more billable hours upon her return from maternity leave. However, when she requested additional work to meet this new standard, the partners were not forthcoming.

It’s unlikely that the management at Morrison intended to discriminate against any of their associates. However, sometimes even the appearance of gender and pregnancy bias is enough to cause legal problems. Working closely with an employment attorney is the best way to avoid these situations.

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The Ninth Circuit Court has acted to further eliminate the wage gap. In fact, it reversed a decision that the judge now views as unjust. The ruling sets precedent for female employees who allege that they are paid less than similarly qualified male counterparts for the same work.

Compensation-134182432-001The case in question is Rizo v. Yovino. Aileen Rizo is a math consultant employed with Fresno County Public Schools. When she learned that male colleagues in her department were being paid significantly more than she was, Rizo began investigating. What she learned eventually led her to sue her employer. Basically, Rizo was earning less because she had been paid less in her previous positions with other employers. Fresno County Public Schools used her wage history as justification for paying her less than male counterparts with similar experience.

The Ninth Circuit agreed with this pay history reasoning last year, aligning themselves with the defendant because the pay differential was based on “a factor other than sex.” The recent reversal of this finding means that a worker’s pay history cannot be construed as “a factor other than sex” under the auspices of the Equal Pay Act. This decision effectively wipes out 30 years of precedent, and activists say that it strikes a major blow to the wage gap situation.

In the decision, Judge Reinhardt wrote that “‘any factor other than sex’ is limited to legitimate, job-related factors such as a prospective employee’s experience, educational background, ability, or prior job performance.” The judge went on to argue that using the Equal Pay Act to perpetuate the gender wage gap runs contrary to the very purpose of the Act.

The decision is an echo of several state-level decisions that are prohibiting employers from gathering data relating to the salary history of prospective employees. Accordingly, it is critical for employers to update their hiring processes to reflect these changes. It also is sensible to review current salary data for all existing employees to ensure that any pay disparities between male and female colleagues with similar qualifications are supported by the provisions of the Equal Pay Act.

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Employers don’t always have an easy time when it comes to accommodating the religious beliefs of workers. Understanding nuanced belief systems and balancing that with company objectives leads to legal friction. That’s the case in a lawsuit that the Equal Employment Opportunity Commission, or EEOC, filed against Memorial Healthcare in Michigan.

Employment-Contract-44108074-001According to the complaint, medical transcriptionist Yvonne Bair received an offer of employment from Memorial Healthcare. The prospective employer informed Bair of its requirement that all employees receive the flu vaccination. Bair refused the vaccination on religious grounds, saying that her belief in Jesus Christ led her to reject injecting or ingesting any foreign substances. The hospital suggested that Bair could take the nasal spray flu vaccine, but Bair again refused.

Memorial then rescinded its employment offer, despite the fact that Bair told them that she would wear a mask. According to the employer’s policy, it’s acceptable for employees to wear a mask when they cannot get a vaccination.

Bair took her complaint to the EEOC, which filed a lawsuit on her behalf. The EEOC charges that Memorial violated Title VII of the 1964 Civil Rights Act when it rescinded the employment offer. According to the act, employers cannot discriminate against employees based on religious beliefs. Instead, employers must strive to provide reasonable accommodations that allow workers to observe personal religious practices.

Why did Memorial rescind the offer of employment when they have a policy allowing unvaccinated employees to wear a mask as an alternative? Bair would eventually have become a work-from-home employee, so the chances of her transmitting the flu to co-workers or patients would likely have been minimal.

Perhaps Memorial had other reasons for deciding to go with another job candidate. However, unless they used proper documentation to support their decision, they may find themselves in a continuing legal battle.

It is vital for all employers to understand anti-discrimination employment laws. Additionally, it’s critical that employers proceed with extreme caution when it comes to hiring, firing and disciplinary decisions. Work with a qualified business attorney to make certain you stay on the right side of the law.

Feel free to contact attorney Rich Oppenheim by phone or message by using the “Contact” box in the right column of this blog.

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A former employee of a Chicago-area Target store is suing the retail chain based on numerous claims. Perhaps most explosive among them is the accusation that Target systematically accuses Hispanic employees of using fake Social Security numbers.

Wrongful-TerminationEsmeralda Radek began working at Target in 2012. In 2014, the manager of the store where Radek worked received a letter that claimed that Radek was stealing from the store and selling the items on eBay. Moreover, the letter asserted that Radek had used a fake Social Security number during the hiring process.

Approximately one week after receiving the letter, human resources personnel at the store confronted Radek over the claim that she used a false Social Security number. Radek was requested to verify her Social Security information by providing the state in which the credential was issued. In response, Radek informed supervisors that she had been born in Texas, and that her mother had likely obtained the Social Security card for her.

Within a few days, Target terminated Radek’s employment on the grounds that she had used a fake Social Security number. However, Radek claims that she is not the only Hispanic employee at Target who has been accused of similar crimes. If these employees could later verify the authenticity of their credentials, they could be re-hired.

In April of 2014, Radek filed a complaint alleging that she had been fired based on her national origin. Additionally, the complaint alleged a negligence claim under Illinois state law, hostile work environment claims and asserted that Target had demonstrated a pattern of practice that discriminated against Hispanic employees.

Target filed a request to dismiss the case, and a U.S. District judge partially granted this request. Judge Lee dismissed the claims regarding the hostile work environment and pattern of practice, but said that Radek’s case regarding national origin discrimination may proceed.

When questions arise regarding an employee’s identification and other credentials, it is always advisable to proceed with caution. Consult with a qualified business and employment attorney before this type of situation arises so that your organization is prepared to respond in line with the law.