California Employment Lawyers Blog

Our Fullerton, California employment attorneys have been closely watching the U.S. Supreme Court's decision announced this week in the anti-retaliation lawsuit, Kasten v. Saint-Gobain Performance Plastics Corp.--a decision that proves to be a huge victory for workers across the country.

According to the original lawsuit, employee Kevin Kasten sued his employer, Sant-Gobain Performance Plastics Corporation, under the Fair Labor Standards Act of 1938, which provides employment rules on minimum wage, overtime pay and maximum hours and prohibits employers from firing employees out of retaliation, for filing a complaint.

Kasten claimed in his retaliation lawsuit that he was discharged from the company after he complained orally about the company's practice of placing timeclocks in an area that kept workers from receiving credit and compensation for the time spend donning and doffing--or taking on and off their protective work gear, as well as walking to work areas. According to the Supreme Court decision, Saint-Gobain was found to have violated the FLSA's wage and hour requirements for the timeclock placement.

The highest court's decision also agreed with the U.S. Department of Labor--that an employee who complains in an oral manner about not receiving payment for all hours worked, as opposed to a complaining in a written manner, is protected from retaliation. This decision will also protect workers who complain orally under a variety of other whistleblower statutes administered by the Department of Labor.

Continue reading "Supreme Court Supports Workers in Wage and Hour Decision " »

In a blog from earlier this year, our Riverside, California wage and hour attorneys discussed a wage and hour investigation performed by the U.S. Department of Labor's (DOL) Wage and Hour Division, after employees alleged that their employer, Upper Crust, LLC, failed to pay the low wage workers for overtime payments that were ordered by the DOL, after a 2009 DOL investigation required that the Massachusetts pizza chain pay around $350,000 in back wages.

Last week, in the second suit filed this year against the company by former employees, a former operations manager of Upper Crust accused the pizza chain of retaliation in a lawsuit, after he went to the DOL, reporting the company for wage and hour law violations.

Patrick Joyce had reportedly worked for seven years at Upper Crust, and according to his lawsuit, he told both the owner's business partner and general manager that employees were regularly working beyond 70 hours a week, receiving a flat rate of pay totaling $455, with no overtime compensation. In January, Joyce contacted the DOL, and accused the company of unethical and illegal practices.

The Boston Globe reports that Joyce felt he was a target because he came forward as a whistleblower to the DOL. He claimed that after reporting the company for unethical practices, he was accused of being involved in a store robbery, and had several hundred dollars in wages withheld from his final check out of retaliation. Joyce reportedly told the owner that if his wages was not paid to him, he would the pizza company to the DOL. Joyce claims in his lawsuit that he was threatened, and even filed an incident report with the Boston Police Department. Joyce is reportedly seeking around $150,000 in damages.

Continue reading "Upper Crust Sued Again for Retaliation and Wage and Hour Violations" »

According to a recent article in the Wall Street Journal (WSJ), pharmacy companies such as Merck, Pfizer, Bristol-Myers Squibb, and Eli Lilly, paid a total of over $6 billion in settlements for federal whistleblower-initiated cases between 2001 and 2009.

The New England Journal of Medicine reports that currently 90% of health care fraud cases are "qui tam" actions, where whistleblowers with knowledge of alleged fraud initiate the litigation on behalf of the government. In a qui tam case, if the action leads to a financial award, the whistleblower stands to collect part of the recovery.

In a special report by the New England Journal of Medicine, twenty-six pharmacy industry whistleblowers were interviewed to investigate what motivated them to speak out about the whistleblowing experience, and how it changed them. The report found that even though the median monetary reward was $3 million, the overall sentiment was that the payoff was not worth the personal cost.

According to the report, most whistleblowers found that they discovered the wrongdoing within the company after starting a new job, or being promoted to a new job within the company. Eleven employees stated that they initially refused to participate in wrongdoing, and all but four of the eleven said that they took their complaints to higher management within the company before going to authorities. Five of these employees were fired as a result.

Continue reading "Whistleblowers and Health Fraud Cases in the Pharmaceutical Industry" »

In recent news, that our Santa Ana, California employment attorneys have been following, the research-based pharmaceutical and healthcare company GlaxoSmithKline (GSK) has agreed to pay the U.S. government $750 million in a whistleblower lawsuit settlement, after being hit with civil and criminal charges in a 2004 lawsuit for allegedly selling adulterated drugs to Medicaid and other government health plans.

The case reportedly holds the drug makers accountable for violating government manufacturing standards by the use of whistleblower law. The lawsuit was filed on behalf of former Quality Assurance Manager for GSK, Cheryl Eckard, under the False Claims Act, a law that encourages people who have knowledge about fraud against the government to sue the company and share in the monetary recoveries.

According to the lawsuit, in 2002, Eckard was instructed to lead a group of global scientists and professionals at the Cidra, Puerto Rico facility to remedy violations in manufacturing cited by the FDA. At the time, Cidra was reportedly GSK's top manufacturing facility in the world, creating more than twenty products that brought the pharmaceutical company around $5.5 billion every year.

At the facility, Eckard reportedly discovered manufacturing and quality testing issues that surpassed the FDA violations, including mixed up drug products, products contaminated with microorganisms, injectable drugs that were unsterile, and drugs used to treat diabetes that were reportedly found to be superpotent and subpotent, among others. The lawsuit claimed that this led Eckard to determine that GSK could not prove that they produced contamination-free products made in accordance with the FDA registered drug formulas.

Continue reading "$750M Whistleblower Lawsuit Settlement Reached--Glaxo Pays for Drug Manufacturing Violations" »

As Anaheim-based Labor and Employment Lawyers, we have been following the recent California discrimination case brought against Giumarra Vineyards Corporation, where the company is being accused of sexually harassing a young female farm worker, creating a hostile work environment, and retaliation.

The U.S. Equal Employment Opportunity Commission (EEOC) filed the lawsuit in U.S. District Court for the Eastern District of California, and claimed that the teenage worker was forced to endure sexual comments and verbal harassment, as well as inappropriate sexual touching by a non-management Giumarra worker on a daily basis. After witnessing the sexual harassment, a group other farm workers stood by the victim and filed a complaint with Giumarra Vineyards, reportedly one of the largest table grape growers in the country.

According to the lawsuit, one day after reporting the harassment, the teenager and the class of farm workers were all fired in retaliation. All of the identified victims in the case are indigenous Indians from Mexico--a reported minority in the Mexican community of farm workers.

According to Title VII of the Civil Rights Act of 1964, it is against the law to harass employees based on gender, and illegal to retaliate against a worker who files a complaint about discrimination in the workplace. The EEOC states that when workers complain to supervisors about harassment in the workplace, it is the responsibility of the employer to take action and end the unlawful discrimination. The commission also stated that cases involving the sexual harassment of teenage victims are taken seriously, as are aggressive acts of retaliation against workers who stand up for their rights, and the rights of their colleagues in the workplace.

Continue reading "California Vineyard Accused of Teenage Sexual Harassment " »

In Southern California last week, a Los Angeles County factory employee was fatally crushed in an industrial compactor--giving the Occupational Health and Safety Administration (OSHA) great concern about the health and safety of the factory's employees.

Efren Monterroso, a 64-year old employee at the factory, was found crushed to death inside a trash compactor at the Southland factory. Investigators believe that the fatal occupational injury occured Monterroso was crushing cardboard at the factory, and ended up inside the machine when it was turned on--although the reason why Monterroso was inside the compactor when it was switched on is unknown and is under investigation. He was pronounced dead by the emergency rescue crew at the scene of the accident.

In the wake of this tragic employment fatality, questions about the safety of the machine, and the safety of workers in the factory arise. According to the California Occupational Safety and Health Act of 1973, every employer has a legal obligation to maintain and provide a safe and healthy workplace for all employees. In California, all employees have the right to work in a safe environment and not be discriminated against, or wrongfully terminated if they report safety violations. Southern California employees are protected by law, and should report safety hazards--it is illegal for an employee to be fired or retaliated against for reporting safety violations.

In a 2005 fatal occupational injury survey, conducted by the California Department of Occupational Safety and Health (Cal/OSHA), there were 38 machinery accident related deaths in California. Of these California employment fatalities, 19 workers were caught in or compressed by equipment or an object, and 6 were caught in operating equipment or machinery.

Continue reading " Southern California Worker Fatally Crushed by Cardboard Compactor" »

As California Labor and Employment Lawyers, we have been following recent reports tracking the rise of employee retaliation complaints with the Equal Employment Opportunity Commission (EEOC). According to EEOC data, retaliation charges rose 23% in fiscal year 2008 to 32,690--more than a third of all claims filed with the agency.

A recent article in the Wall Street Journal reported that retaliation complaints have nearly tripled since the EEOC started recording the data in 1992. The 2009 statistics aren't yet available, but according to the article, employment lawyers claim that there will be a rise in retaliation cases, especially among workers who have been laid off. EEOC officials also cite that many complaints come from laid off workers--and that retaliation is often easier to prove than discrimination, after the Supreme Court redefined a broader meaning of retaliation in 2006.

EEOC assistant general counsel Carolyn Wheeler stated that eliminating retaliation is the top priority of the commission. She claimed that in order to enforce anti discrimination laws, people need to stand up and file complaints. Said Wheeler, "If people don't feel free to do that, these laws don't get enforced."

In a recent case last month, the EEOC sued Childress Engineering Services for allegedly retaliating against a female employee, Jennifer Green. Green claimed to experience hostile and sexually explicit comments from her male colleagues throughout her employment. She made a formal complaint in January 2008. According to the EEOC, Green was chosen for layoffs a month later because she stepped up as a whistleblower. An attorney for Childress claimed that Green was laid off because of the current economic climate and because she was the newest employee with the company.

According to the EEOC website, an employer may not fire, demote, harass or retaliate against an individual employee for filing a charge of discrimination, being involved in a discrimination proceeding, or opposing workplace discrimination.

Over 25,999 retaliation charges were resolved by the EEOC in 2008, and more than $111 million were recovered in monetary benefits for aggrieved individuals and charging parties (this does not include monetary benefits received through litigation).

Our Anaheim-based Labor and Employment Lawyers know how to defend retaliation and discrimination in your Orange County or Southern California employment issue. Contact Howard Law, PC today, for a free consultation.

Employer Retaliation Claims Rise, Wall Street Journal, October 6, 2009

Web Related Resources:

EEOC: Retaliation

Americans With Disabilities Act of 1990, As Amended

Last month, the California State Senate approved legislation that will provide employees of University of California the same legal rights and protections as other employees in the state who file whistleblowing complaints in the workplace.

Written by Senator Leland Yee, a Democrat from San Francisco and San Mateo County, the legislation gives UC employees the right to sue the University for damages if they are fired for reporting wrongdoing or health and safety concerns in the state workplace. The legislation passed in the Senate with a 22-12 vote, and will be presented to Governor Arnold Schwarzenagger for a signature of approval.

Currently, if a UC Employee files a complaint, it is reviewed by the university internally, giving the UC executives the power of both judge and the jury in cases regarding monetary claims. According to the The Daily Californian, Senator Yee stated that this was not the intent of California's Whistleblower Law. Yee stressed the immediate importance of having the Governor sign the bill to correct the statute, so UC workers will be protected in the future from wrongful retaliation when filing a complaint.

The California Department of Industrial Relations (DIR) defines a whistleblower as an employee who discloses employer violations of state or federal statues, employer noncompliance with state or federal regulations, or disregard to employee safety and health.

Senator Yee introduced the bill last year in response to a July 2008 ruling against two former UC Berkley employees by the California Supreme Court. The employes claimed wrongful termination and retaliation after complaining about workplace safety in a university-managed research laboratory.

In 2003, computer scientists Luciana Messina and Les Miklosy reported multiple workplace health and safety concerns to UC supervisors while engaged in a nuclear weapons project at the Lawrence Livermore National Laboratory. The supervisors fired Miklosy in February of 2003, and Messina resigned three weeks later. Messina and Miklosy filed internal whistleblowing complaints, accusing the university of wrongful termination and retaliation for reporting safety and health issues, which led to the California Supreme Court ruling in 2008.

According to the Supreme Court findings, the California Whistleblower Protection Act prohibits state employees from engaging in unfair retaliation against employees who report fraud, waste, abuse of authority, violation of law, or threat to public health to law enforcement authorities. The Act authorizes "an action for damages" to redress acts of retaliation. But The California Supreme Court ruled that UC employees who experience retaliation as a result of whistleblowing are unable to sue for damages under the state's Whistleblower Protection Act, unless the employee first files a complaint with a UC officer, and the university fails to reach a timely decision on the retaliation complaint. This ruling exposed an oversight in the Legislature's amendment of the Act in 2001--which provided all California state employees the legal right to seek damages--except UC employees.

If approved by the Governor, the new law will change the statute currently exempting UC employees from the same protections as other state employees.

According to the San Francisco Chronicle, although UC officials opposed the measure, they were in agreement with the idea that whistleblowers should have the same rights as other state employees--they should be able to sue over retaliation and be protected in the workplace.

Legislature OKs Protections for UC Workers, San Francisco Chronicle, August 25, 2009

State Senate Passes UC Whistleblower Bill, The Daily Californian, August 25, 2009

California Legislature Approves Protections for Whistle Blowers at Universities, Chronicle.com, August 24, 2009

UC Whistle Blower Protection Act Passes Senate, California Progress Report, August 27, 2009

Assembly Approves Bill to Protect UC Whistleblowers, California State Senate Press Release, July 13, 2009

Related Web Resources:

The Whistle Protection Program, OSHA

California Department of Industrial Relations (DIR)

Continue reading "California Whistleblower Bill Passed in State Senate" »