News & Articles

May 7, 2024

U.S. SUPREME COURT CLARIFIES WHISTLEBLOWER PROTECTIONS IN MURRAY V. UBS SECURITIES, LLC

The recent Supreme Court decision in Murray v. UBS Securities, LLC clarified whistleblower laws in the United States under the Sarbanes-Oxley Act. The Court’s February 8, 2024 ruling addresses critical aspects of what whistleblowers must prove to establish retaliation claims. In this article, we will dissect this decision to highlight its implications for both employers and employees […]

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March 8, 2024

A Victory for Attorney-Client Privilege

In a legal landscape where the preservation of attorney-client privilege is paramount, ILG Legal’s recent court victory underscores our commitment to defending this foundational principle of law. Our recent success on behalf of Kenneth Freedman against invasive discovery requests highlights the importance of protecting confidential legal communications. The dispute originated from Plaintiff’s attempt to compel […]

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February 1, 2024

ILG Legal Helps Secure $1.89 Million Class Action Settlement in Bank of America Case

On January 11, 2024, in federal court, ILG Legal Office, PC helped secure approval of a $1.89 million settlement fund on behalf of approximately 16,577 current and former employees. Stephen Noel Ilg appeared along with lead counsel Justin Marquez of Wilshire Firm, to argue in support of the settlement that will end litigation that spanned […]

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December 27, 2023

United States Employment Trends In 2023 And The Implications For Employment Law

2023 Employment Trends: What You Need to Know The employment landscape in the United States has gone through notable changes in 2023, vital for both employers and employees to understand. In August, the employment numbers hit a record high with over 161 million individuals employed. However, the overall employment rate experienced a slight dip to 60.20% in October from […]

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November 17, 2023

CALIFORNIA'S EMPLOYMENT LAW LANDSCAPE IN 2024: WHAT YOU NEED TO KNOW

2024 is set to be a pivotal year for employment law changes in California. Whether you’re an employer or an employee, staying informed about the latest legal shifts is crucial. ILG Legal is here to guide you through the maze of new and updated laws affecting minimum wage, sick leave, reproductive rights, noncompetes, and more. […]

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October 30, 2023

New California Bill Expands Mandatory Paid Sick Leave: What Employers and Employees Need to Know

In a landmark move, California has recently signed a new bill that will significantly impact both employers and employees in the state. Effective January 1, 2024, the mandatory paid sick leave in California will be expanded from three days or twenty-four hours to five days or forty hours. This article will provide an overview of […]

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October 6, 2023

ILG Legal Office Takes on Tesla: Fighting Workplace Discrimination and Wrongful Termination

ILG Legal Office has recently filed a wrongful termination lawsuit on behalf of Cindy K. Hernandez against automaker Tesla in the Santa Clara County Superior Court. Ms. Hernandez, a former advisor at Tesla, has come forward with allegations of racial and age-related discrimination during her employment at the company. Legal news site law.com reported on the case here. In her role […]

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September 9, 2023

Court Sides with ILG Legal in Ruling Against Samsung's Attempt to Sidestep Public Litigation, Ruling Highlighted in the Daily Journal

Arbitration agreements have found their way into the vast majority of employment contracts at high-profile companies, making arbitration a political hot topic. Although state and federal law are still pro-arbitration, ILG Legal Office’s current case involving Samsung Research America Inc. and Andrew Mo in Santa Clara County has shined a spotlight on how employees can […]

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February 8, 2022

Ilg Published in LA and SF Daily Journal for Lawson Opinion

In a unanimous opinion, the California Supreme Court ruled that State and federal judges have been applying the wrong legal test to whistleblower employee claims. Stephen Noel Ilg, owner of ILG Legal Office, PC and a Professor of Law, authored an article on the topic which was published in the Los Angeles and San Francisco […]

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November 19, 2021

Help the Afghan Coalition By Volunteering or Donating

“Taliban” sounds different when spoken by someone who has lived in Afghanistan. I was born and raised in the U.S. and have heard the name “Taliban” countless times. But when I began volunteering with the PERS Equality Center and the Afghan Coalition, the same three syllables in “Taliban” took on new significance. Reading about the […]

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May 19, 2021

ILG Legal Office, PC Raises $3,000.00 for Local Nonprofit CASA of San Mateo

We raised about $3,000.00 for an amazing local nonprofit, CASA of San Mateo which protects local foster children! Thanks to Andrea Kirk for collaborating with me. I was so happy to play a tiny role in such an amazing organization. If you want to donate, go to CASA’s website or, even better, apply to be a […]

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February 28, 2021

New case filed this week - Sally Beauty Supply

Anissa Brown, a former Sally Beauty Supply sales associate, filed a lawsuit in federal court Wednesday against the company after a store manager admitted to racially profiling African Americans. The manager would signal workers whenever an African American customer entered the store. According to the lawsuit, Anissa Brown reported the racial profiling to HR and […]

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January 19, 2021

Employee-Friendly ABC Test Applies Retroactively, According to California Supreme Court

State and federal courts utilize several tests to analyze whether a worker qualifies as an employee. One of the more employee-friendly tests is labeled the “ABC” Test. The ABC Test rose to

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January 8, 2021

Wrongfully Terminated Employee Preserves Multi-million Dollar Judgment Against U.S. Bank by Winning at Court of Appeal

Employee wins $17.2 million for lawsuit including wrongful termination and defamation claims. In King v. U.S. Bank Nat’l Ass’n, 52 Cal.App.5th 728 (2020), Timothy King alleged he was wrongfully terminated, was defamed, and suffered other employment violations. He worked for U.S. Bank and earned positive performance reviews from 2007 to 2011. King supervised four people […]

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December 31, 2020

Law Firm Goes the Extra Mile to Feed Local Families

To fight increased food insecurity resulting from the Covid-19 pandemic, our law firm ILG Legal Office, PC recently organized a fundraiser and donated $1,500 to Give With Lily, a Bay Area non-profit that helps foster children, homeless youth, and local food banks. Here’s a link to an article that was published today. https://finance.yahoo.com/news/law-firm-goes-extra-mile-133300347.html “There are […]

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October 28, 2019

Waiting Periods in Civil Lawsuits

Most clients are who are unfamiliar with civil lawsuits believe them to be expedient, but there are numerous common delays, or waiting periods, within the life cycle of a civil lawsuit. Many of these delays are unavoidable, regardless of the actions of the opponent. The first waiting period begins with the pleading, composed of the […]

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October 14, 2019

Distinguishing between Employees and Independent Contractors: Garcia v. Border Transportation Group, LLC

The Plaintiff in the case of Garcia v. Border Transportation Group, LLC, California Court of Appeal Case No. D072521, was a taxi cab driver and rented his taxi from the Defendant, Border Transportation Group. Garcia drove his taxi cab in Calexico and obtained a permit…

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May 24, 2018

Is Your Company’s Arbitration Agreement Enforceable?

In today’s workplace, arbitration agreements between employers and employees are increasingly common. However, in the recent past, California courts have taken a somewhat controversial stance on these agreements by carving out

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May 4, 2018

Is Your Employer Correctly Calculating Your Overtime Rate?

In a decision in March, the California Supreme Court held that when calculating the overtime rate in pay periods where an employee earns a flat sum bonus, employers must divide the total compensation earned in a pay period by the non-overtime hours worked by an…

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February 16, 2018

Marijuana in the Workplace

Most clients are who are unfamiliar with civil lawsuits believe them to be expedient, but there are numerous common delays, or waiting periods, within the life cycle of a civil lawsuit. Many of these delays are unavoidable, regardless of the actions of the opponent.

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January 31, 2018

2017—Looking Back on a Great Year: Over 100 Clients With Perfect Client Reviews

ILG Legal takes pride in representing both corporate employers and individual workers. As of 2016, our attorneys had already helped thousands of workers recover money they were owed via class action claims, particularly those focusing on unpaid wages. In 2017, the firm celebrated representing its 100th individual client, a California-based small business who had received a […]

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January 9, 2018

Circuit Split on LGBTQ Laws Makes Title VII Supreme Court Case Ripe for 2018

LGBTQ employees in the United States have become more and more visible in American society in the past few decades, but the legal issues surrounding their standing in the workplace is far from clear. While LGBTQ folks in states like California enjoy certain guarantees of recourse thanks to FEHA (Fair Employment and Housing Act) of […]

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December 7, 2017

With Net Neutrality on Potential Death Watch, Now is a Good Time to Ask: What is Net Neutrality?

In the last year, with the Trump Administration’s various immigration bans, attempts to repeal and replace Obamacare and now overhaul the tax code, the so-called “net neutrality” issue may have flown under the digital radar for many. But a key vote by the FCC—which may occur as early as mid-December—could seriously impact businesses and consumers […]

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October 28, 2017

Me Too Evidence

While you may have recently seen the phrase “me too” on social media following the Harvey Weinstein allegations, “me too” evidence is actually frequently used in employment litigation. In employment cases, it is often very difficult for a plaintiff to provide direct evidence of an employer’s discriminatory intent. In most cases, plaintiffs can only present […]

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Testimonials

What Clients Are Saying

The recent Supreme Court decision in Murray v. UBS Securities, LLC clarified whistleblower laws in the United States under the Sarbanes-Oxley Act. The Court’s February 8, 2024 ruling addresses critical aspects of what whistleblowers must prove to establish retaliation claims. In this article, we will dissect this decision to highlight its implications for both employers and employees in California and beyond.

Case Background

Trevor Murray, the plaintiff, was a former employee of UBS Securities. Murray’s allegations centered around his claim that he was terminated as a direct result of whistleblowing activities. Specifically, he reported that two leaders of the UBS trading desk were engaging in practices he believed to be illegal and unethical. These reports, he argued, fell squarely under the protections afforded by the whistleblower provisions of the Sarbanes-Oxley Act, which are designed to shield employees who expose fraudulent activities or violations of SEC regulations. The central issue in his case was whether whistleblowers must prove that their employers acted with “retaliatory intent” when they faced adverse actions after reporting wrongdoing.

U.S. Supreme Court’s Decision

The Supreme Court unanimously reversed a Second Circuit decision that had introduced the requirement for whistleblowers to prove retaliatory intent by their employers. The Court ruled that the statutory language of the Sarbanes-Oxley Act does not include such a requirement. Instead, the Court emphasized that a whistleblower only needs to show that their protected activity was a “contributing factor” to the adverse employment action. This standard is intended to be more accommodating to whistleblowers, easing their burden of proof in retaliation cases.

Implications for Employment Practices

This ruling has significant implications for employment law cases involving the Sarbanes-Oxley Act:

  1. Easier Burden of Proof for Whistleblowers: Whistleblowers do not need to demonstrate that their employer had retaliatory intent, which lowers the evidentiary barrier for proving retaliation claims.
  2. Review of Corporate Policies: Companies must ensure that their whistleblower policies and practices are robust and clearly documented to prevent any discriminatory actions that could be perceived as retaliation.
  3. Training and Awareness: Employers should conduct regular training sessions with management and employees about the rights of whistleblowers and the legal repercussions of violating these protections.

Conclusion

The Murray v. UBS Securities, LLC decision reaffirms the protective measures intended by the Sarbanes-Oxley Act for whistleblowers. It underscores the importance of a legal framework that supports employees in reporting wrongdoing without the fear of retaliation. At ILG Legal Office, we are dedicated to guiding our clients through these complex legal landscapes, ensuring that both employers and employees understand their rights and obligations under current laws.

Contact Us

For more detailed advice and legal support related to employment law and whistleblower protections, please contact ILG Legal Office. Stay informed and compliant with our expert legal guidance.

In a legal landscape where the preservation of attorney-client privilege is paramount, ILG Legal’s recent court victory underscores our commitment to defending this foundational principle of law. Our recent success on behalf of Kenneth Freedman against invasive discovery requests highlights the importance of protecting confidential legal communications.

The dispute originated from Plaintiff’s attempt to compel Mr. Freedman and his mostly retired firm to produce privileged documents and information pertaining to clients. Plaintiff’s demands were staggering in their scope: seeking privileged documents and information spanning over a decade. Plaintiff’s motion was based on the slender pretext that Mr. Freedman’s firm had once engaged a contract attorney who had also worked for Plaintiff’s firm. Complying with Plaintiff’s demands would effectively erode the attorney-client privilege that is vital to the practice of law.

Faced with this challenge, ILG Legal Office mounted a robust defense, emphasizing the sanctity of privileged communication and the baselessness of Plaintiff’s request. Our argument was vindicated in a ruling by the Superior Court of California, County of Santa Clara, which recognized the excessive and improper nature of the discovery requests.

The court granted, in part, ILG Legal’s motion for a protective, significantly curbing Plaintiff’s demands. The court found the number of discovery requests to be excessive and that the attempt to uncover the identity of certain clients posed serious concerns. The court mandated the production of only a minimal set of information within very narrow parameters, focusing on non-confidential client details and only for a short timeframe. This ruling protected the confidentiality of the Mr. Freedman’s attorney-client communications, thus preserving the integrity of attorney-client privilege.

This victory is not merely a win for Kenneth Freedman and ILG Legal, but a win for all legal professionals and their clients. It reaffirms the critical importance of attorney-client privilege as the bedrock of our legal system and demonstrates our firm’s diligent effort and unwavering dedication to protecting our clients’ rights and interests.

At ILG Legal Office, we are inspired by this outcome and remain dedicated to upholding the highest standards of legal practice. We extend our deepest gratitude to our legal team and our client, Kenneth Freedman, for their trust and resilience throughout this process. Together, we have helped ensure that the confidentiality of legal communications remains inviolable.

On January 11, 2024, in federal court, ILG Legal Office, PC helped secure approval of a $1.89 million
settlement fund on behalf of approximately 16,577 current and former employees. Stephen Noel Ilg
appeared along with lead counsel Justin Marquez of Wilshire Firm, to argue in support of the settlement
that will end litigation that spanned almost six (6) years. In February 2018, ILG Legal Office, PC filed a
class action claim in the Superior Court in Oakland, California which Bank of America removed to federal
court. Around the same time, a similar lawsuit was filed by Wilshire Law Firm. The two law firms joined
forces and helped navigate a series of battles with the banking giant, including motions to dismiss and
for summary judgment.

Bank of America will pay $1.5 million to resolve the claims and may pay up to $1.89 million depending
on whether the final number of applicable employee pay periods worked during the relevant time
period is higher than the estimate provided during negotiations.

After years of discovery, motion practice, and even appellate briefs, the parties negotiated a resolution
of all class action and PAGA claims. The $1.89 million settlement resolves claims of 16,577 workers, and
the group appeared to support the class settlement in that zero workers objected to the deal and only
six (6) workers opted out of the deal.

The Court praised the attorneys involved for their superb professionalism during the lengthy class
action’s history. In granting the attorney fee award, the Court approved Stephen Noel Ilg work to be
paid at the rate of $750 per hour based on a series of legal accomplishments in employment law,
particularly in employment cases.

The class action case alleged that Bank of America violated a series of employment rules, which the Bank
denied. More specifically, Plaintiffs claimed that the Bank owed workers money for failing to pay
minimum wages, failing to pay overtime wages, failing to provide meal periods, failing to authorize and
permit rest periods, failing to pay meal and rest premium payments at the correct rate of pay, failing to
timely pay final wages at termination, and failing to provide accurate itemized wage statements.
ILG Legal Office, PC thanks the Court for approving this excellent deal and applauds the Class
Representatives for their stellar work leading this complex case.

2023 Employment Trends: What You Need to Know

The employment landscape in the United States has gone through notable changes in 2023, vital for both employers and employees to understand. In August, the employment numbers hit a record high with over 161 million individuals employed. However, the overall employment rate experienced a slight dip to 60.20% in October from 60.40% in September. Furthermore, job openings increased to about 9.55 million by September’s end.

Implications for Employees and Employers

  1. Understanding Employment Terms and Contracts: The rise in job openings means more people are entering new employment roles. For employees, it’s crucial to comprehend the terms of your employment and any applicable employment contracts. Employers, on the other hand, need to ensure their employment terms and contracts are clear, fair, and legally compliant. This mutual understanding can prevent future disputes and maintain a healthy workplace relationship.
  2. Stable Yet Dynamic Job Market: Despite a steady unemployment rate, workplace challenges such as wrongful termination, discrimination, and harassment persist. Employees should be aware of their rights and seek legal counsel if they face such issues. Employers must be diligent in maintaining a fair and compliant workplace, understanding that preventive legal advice can safeguard against potential disputes.
  3. Workplace Safety and Compliance: The previous year’s rise in workplace injuries and illnesses highlights the importance of workplace safety. Employers are responsible for providing a safe working environment and adhering to safety regulations. Employees should be aware of their rights regarding workplace safety and compensation in case of any injury or illness.
  4. Adapting to Employment Rate Fluctuations: The slight fluctuation in employment rates signals the need for both employees and employers to be adaptable and informed. Employers should strategize for potential changes in the labor market, such as restructuring or downsizing, while ensuring compliance with employment laws. Employees, meanwhile, should stay informed about their rights and options during such transitions.

Conclusion

The employment trends in 2023 bring forth different considerations for employees and employers. From contract negotiations to maintaining a compliant and safe workplace, understanding these trends is crucial. At ILG Legal Office, we provide expert legal advice and support to both employers and employees, helping navigate the complexities of employment law. Whether you’re seeking to understand the terms of your employment, facing workplace issues, or needing guidance on legal compliance, our team is here to assist in fostering a balanced and legally sound employment landscape.

2024 is set to be a pivotal year for employment law changes in California. Whether you’re an employer or an employee, staying informed about the latest legal shifts is crucial. ILG Legal is here to guide you through the maze of new and updated laws affecting minimum wage, sick leave, reproductive rights, noncompetes, and more.

Minimum Wage: On the Rise for a Fairer Future

Starting in 2024, California’s minimum wage is set to increase to $16.00 per hour for all employers, regardless of size. This is an increase from California’s current minimum wage of $15.50 per hour and reflects California’s ongoing commitment to higher wage standards. Additionally, California Senate Bill 525 was signed into law by Governor Gavin Newsom on October 13, 2023, mandating an increase in the minimum wage for healthcare workers to $25 per hour by June 2026. This law also introduces a new salary threshold to determine exempt healthcare employees, who are not subject to overtime regulations. The legislation encompasses all healthcare workers across various settings, regardless of their employment status with the facility.

Impact on Overtime Exemption Test

The increase in the minimum wage in California also affects the minimum salary threshold for exempt employees. In California, to qualify for the overtime exemption, an employee must earn a minimum monthly salary equivalent to twice the state minimum wage for full-time employment. With the minimum wage rising to $16.00 per hour, the new minimum salary for exempt employees will be $5,546.67 per month (or $66,560 annually), up from the current threshold based on the $15.50 per hour minimum wage.

Additionally, California’s AB 1228 sets a $20 minimum wage specifically for workers in fast food establishments that are part of a national chain with more than 60 locations. The legislation defines these chains by their standardized branding, menu, and service models, which typically include ordering and paying before eating with limited table service. This wage increase aims to improve the earnings of fast-food workers in large, standardized restaurant chains across the state.

Sick Leave: Adapting to a Post-Pandemic World

The State of California has broadened the scope of paid sick leave with the passage of SB 616. This legislative move comes as a response to a wave of local Paid Sick Leave (PSL) mandates enacted by various cities across the state. On October 4, Governor Newsom approved SB 616, which enhances the Healthy Workplaces, Healthy Families Act of 2014 by introducing several significant changes. These amendments carry far-reaching consequences as they extend to nearly all workers in California who spend at least 30 days working within the state annually. Given the extensive coverage of this law, it’s crucial for employers to prepare for and adapt to these new requirements promptly.

SB 365 Ends Automatic Stay of Litigation During Appeals on Arbitration Orders

With the enactment of SB 365, the automatic suspension of litigation throughout the appeals process is a thing of the past. Governor Newsom has signed off on legislation stipulating that proceedings in California trial courts will no longer be put on hold during the appeal of an order that dismisses or rejects a petition to compel arbitration. Set to take effect on January 1, 2024, this new statute grants courts the authority to determine if a case should continue during the pendency of an appeal.

Compassionate Leave for Reproductive Loss: Understanding SB 848

California Senate Bill 848 acknowledges the profound impact of reproductive loss on employees and mandates compassionate leave to grieve. This legislation entitles employees to take time off for the loss of a pregnancy, providing them with the necessary space to recover emotionally and physically without the added stress of work obligations. SB 848 is a significant step towards recognizing reproductive loss as a valid reason for leave, reflecting a growing awareness of its effects on employees’ well-being.

California Strengthens Worker Mobility with Assembly Bill 1076 Banning Noncompete Agreements

California Assembly Bill 1076, signed into law on October 13, 2023, strengthens the state’s prohibitions against noncompete agreements in employment contracts. The bill amends Section 16600 of the Business and Professions Code to reflect the California Supreme Court’s decision in Edwards v. Arthur Anderson, effectively making it unfair competition to include or enforce noncompete clauses in employment agreements. This legislative action underlines California’s commitment to safeguarding the free movement and trade of workers, ensuring that employees can pursue opportunities in their field without being hindered by previous employment contracts.

California Enacts SB 699 to Void Noncompete Agreements

Senate Bill 699, signed by Governor Newsom on September 1, 2023, is set to reinforce California’s stance against noncompete agreements, bolstering the state’s public policy that supports employee mobility and open competition. Effective January 1, 2024, this law makes it illegal for employers to enter into or attempt to enforce noncompete agreements with employees, rendering such agreements void across the board in California. This includes noncompete contracts made outside of California, ensuring that all such agreements are unenforceable regardless of the location where the employee worked or where the agreement was signed. SB 699 also introduces a private right of action for employees, allowing them to seek legal remedies, including attorney fees, against employers who attempt to impose unlawful noncompete agreements.

Strengthening Employee Protections: California’s SB 497 Bolsters Anti-Retaliation and Equal Pay Measures

Effective January 1, 2024, California’s Senate Bill 497, known as the Equal Pay and Anti-Retaliation Protection Act, amends various sections of the California Labor Code to bolster protections for employees engaged in legally protected activities. The Act specifically aims to protect employees who file complaints, participate in investigations, or exercise their rights under labor laws from discrimination or adverse actions by employers. SB 497 introduces higher civil penalties of up to $10,000 per violation against employers who retaliate in such contexts. Furthermore, it reinforces the principles of equal pay for substantially similar work and safeguards employees from retaliation related to wage transparency—ensuring they can freely disclose, discuss, or inquire about wages without fear of employer retribution.

Staying Ahead of the Curve with ILG Legal

Navigating these changes can be complex, but ILG Legal is here to help. We offer expert legal advice and compliance strategies to ensure you’re ahead of the curve. Whether you’re revising company policies or seeking to understand your rights, our team is ready to assist.

The year 2024 brings significant changes to California’s employment laws, reflecting the state’s progressive values and its commitment to worker rights. From minimum wage increases to strengthening worker mobility, these changes underscore California’s role as a leader in employment law reform. Stay connected with ILG Legal for the latest insights and guidance in this dynamic legal landscape.




Disclaimer: This article is for informational purposes only and should not be considered as legal advice.

In a landmark move, California has recently signed a new bill that will significantly impact both employers and employees in the state. Effective January 1, 2024, the mandatory paid sick leave in California will be expanded from three days or twenty-four hours to five days or forty hours. This article will provide an overview of the new legislation, its implications, and what steps businesses should take to comply.

 

Key Changes in the New Bill

The new bill, set to take effect at the start of 2024, brings about the following key changes:

These changes are implemented by Senate Bill 616 which amends Labor Code sections 245.5, 246, and 246.5. For a detailed understanding of the bill, you can refer to the official California Legislative Information website.

 

Implications for Employers

Employers need to be proactive in adapting to these changes. Here are some steps to consider:

 

Implications for Employees

Employees stand to benefit significantly from this expansion:

 

How to Prepare for the Changes

 

Conclusion

The expansion of mandatory paid sick leave in California is a significant step towards employee welfare. Both employers and employees need to be well-informed and prepared for these changes. Stay tuned for more updates on California employment law.

 

Disclaimer: This article is for informational purposes only and should not be considered as legal advice.

ILG Legal Office has recently filed a wrongful termination lawsuit on behalf of Cindy K. Hernandez against automaker Tesla in the Santa Clara County Superior Court. Ms. Hernandez, a former advisor at Tesla, has come forward with allegations of racial and age-related discrimination during her employment at the company. Legal news site law.com reported on the case here.

In her role at Tesla, Ms. Hernandez was responsible for guiding customers through showrooms, assisting with vehicle sales, and providing customer service. Despite her dedication and professionalism, she was subjected to multiple instances of harassment and discrimination from her manager and coworkers. Tesla employees made various comments about her age, including questions about her retirement plans and remarks about her continuing to work at her age.

The lawsuit also brings attention to the behavior of Ms. Hernandez’s direct manager, who made unprovoked and embarrassing statements in front of customers she was assisting. Furthermore, the manager also made inappropriate comments about Ms. Hernandez’s physical features and cultural background. Tesla’s general manager for North America, did not intervene during these incidents and even joined in the laughter, contributing to a hostile work environment.

In addition to the claims of racial and age-related discrimination, Ms. Hernandez also suffered unlawful retaliation. Tesla terminated her employment on false grounds of “stealing company property,” despite having received proper authorization from a manager to take a company car overnight. Ms. Hernandez is seeking a jury trial, penalties against Tesla, and various forms of damages and compensation.

Our team, led by attorney Stephen Ilg, is fully committed to representing Ms. Hernandez in this case. While the legal process is still ongoing, we are optimistic that this case will serve as a catalyst for positive change at the automaker, emphasizing the importance of fair treatment in the workplace for individuals of all ages and ethnicities.

We are steadfast in our commitment to justice and fair treatment in the workplace, and we look forward to keeping you updated on the progress of this important case. We are asking anyone with information about discrimination at Tesla to contact our office.

Arbitration agreements have found their way into the vast majority of employment contracts at high-profile companies, making arbitration a political hot topic. Although state and federal law are still pro-arbitration, ILG Legal Office’s current case involving Samsung Research America Inc. and Andrew Mo in Santa Clara County has shined a spotlight on how employees can still defeat such agreements to keep a dispute in a public courtroom. In this article, we’ll take a closer look at a recent court decision in the case and explore its implications for both employees and employers.

BACKGROUND OF THE CASE
Andrew Mo, a former employee of Samsung Research America Inc., filed a lawsuit against the company for discrimination, wrongful termination, and retaliation. Mo had left his senior position at Google to join Samsung as a senior director and principal engineer. During the hiring process, Mo asked for the arbitration clauses to be modified or removed from his employment contracts. Samsung insisted they were non-negotiable.

Mo later reported instances of racial discrimination within the company, specifically by Samsung Research America’s vice president. Around a month later, Mo was terminated with the stated reason of “role elimination.” Mo initiated the lawsuit, and Samsung sought to compel arbitration based on the clauses in Mo’s employment contract.

THE COURT’S DECISION
The court, presided over by Judge Evette D. Pennypacker, denied Samsung’s motion to compel arbitration. The judge found the arbitration agreement “unconscionably one-sided” and thus unenforceable. A significant point in the court’s decision was that the agreement allowed Samsung to obtain injunctive relief against Mo for a breach of the company’s confidentiality agreement without needing to prove actual damages. In contrast, if Mo was to seek relief for claims he had against Samsung, he would be forced into private arbitration.

In a Daily Journal article that reported on the pivotal ruling, Stephen N. Ilg, of ILG Legal Office PC, who represents Mo in the case, praised the court for carefully scrutinizing unfair arbitration agreements forced on workers like Andrew Mo. Ilg emphasized that the ruling demonstrated that courts would not simply rubber-stamp a motion to force a public lawsuit into private arbitration.

LEGAL IMPLICATIONS FOR EMPLOYEES AND EMPLOYERS

For Employees:

For Employers:

CONCLUSION
The recent Santa Clara County court ruling is a significant milestone in the ongoing debate about the fairness and enforceability of arbitration clauses in employment contracts. The ruling emphasizes the need for a balanced approach that ensures both employees and employers are treated fairly. It’s an instructive case for both employees considering their legal rights and employers reviewing their contractual obligations. For any issues involving arbitration agreements, contact an attorney at ILG Legal Office who is ready to help you.

In a unanimous opinion, the California Supreme Court ruled that State and federal judges have been applying the wrong legal test to whistleblower employee claims. Stephen Noel Ilg, owner of ILG Legal Office, PC and a Professor of Law, authored an article on the topic which was published in the Los Angeles and San Francisco Daily Journal.  The article is available online at the following link: DailyJournal.  Our firm congratulates Ilg on this published article. We have received great feedback including compliments from mediators and a retired California Appellate Court justice.

The crux of the ruling in Lawson v. PPG Architectural Finishes, Inc., 2022 DJDAR 967 No. S266001, 2022 WL 244731 (Cal. Jan. 27, 2022) is that whistleblower employees never need to prove that the employer’s stated reason for termination is a sham, which is generally referred to as “pretext.” For decades, State and federal courts have required whistleblower employees to prove their employer is lying even though the California statute on the issue clearly states that the claim is governed by a different test.

By its terms, Labor Code section 1102.6 describes the applicable substantive standards and burdens of proof for both parties in a Section 1102.5 retaliation case: First, it must be “demonstrated by a preponderance of the evidence” that the employee’s protected whistleblowing was a “contributing factor” to an adverse employment action. Then, once the employee has made that necessary threshold showing, the employer bears “the burden of proof to demonstrate by clear and convincing evidence” that the alleged adverse employment action would have occurred “for legitimate, independent reasons” even if the employee had not engaged in protected whistleblowing activities.

The attorneys at ILG Legal Office, PC are on the cutting edge of legal developments. We thank the Los Angeles and San Francisco Daily Journal for showcasing an article by a member of our team. The full link to the article is: https://www.dailyjournal.com/articles/365880-ruling-ends-decades-of-improper-whistleblower-burden-shifting.

Volunteers at Humanitarian Parole Clinic
Stephen Ilg Discussing Humanitarian Parole

“Taliban” sounds different when spoken by someone who has lived in Afghanistan. I was born and raised in the U.S. and have heard the name “Taliban” countless times. But when I began volunteering with the PERS Equality Center and the Afghan Coalition, the same three syllables in “Taliban” took on new significance. Reading about the Taliban shutting females out of schools is one thing, but speaking to people whose family members have been shut of school, is another. Reading about kidnapping is one thing, but speaking to someone whose relative was held captive for months, is another. And murder noted in a headline is not the same as speaking to someone whose close relative was murdered in front of their home.

People can debate military strategy and whether withdrawal of the U.S. military from Afghanistan was too early, too late, or perfectly timed. But reasonable people cannot debate that there are scores of people in Afghanistan uniquely in need right now while the Taliban controls the country.

For anyone who believes that all people are created equal, any group that would systematically shut down education or job opportunities for approximately one-half the resident population has created an imbalance that must not go unchecked. Afghans have told me that the U.S. military provided tremendous support to Afghans for many years. The U.S. military’s time keeping peace in Afghanistan has ended. Regardless of how any American feels about the military’s withdrawal, it is the current reality which must be faced. I am eternally grateful to military service members including many of my family members and friends. But I encourage other Americans to do more than thank our service members. There are many living in Afghanistan who helped the U.S. military as translators, contractors or informal allies. These Afghans are part of our military team and are deserving of our thanks, and our help.

All females in Afghanistan are at risk of persecution as well as those who helped the U.S. or Afghan government. The U.S. government has taken steps to help these allies and other Afghans in danger, but more assistance is needed. I encourage anyone who has any time or money to spare to consider the imbalance growing in Afghanistan.

If you can make a monetary donation, consider helping on or before the Tuesday after Thanksgiving. The “Giving Tuesday” campaign will help our program raise funds for filing fees, translation services, continued staffing for humanitarian parole applications for Afghans in particular danger:  https://www.facebook.com/donate/1255255584912651/4584390584933046/. If you have time to volunteer, please reach out to me, and I will try to connect you with an appropriate organization. Attorneys can complete training and assist Afghans with humanitarian parole applications for those left behind.

We raised about $3,000.00 for an amazing local nonprofit, CASA of San Mateo which protects local foster children! Thanks to Andrea Kirk for collaborating with me. I was so happy to play a tiny role in such an amazing organization. If you want to donate, go to CASA’s website or, even better, apply to be a volunteer.

See on linkedin.com

 

Anissa Brown, a former Sally Beauty Supply sales associate, filed a lawsuit in federal court Wednesday against the company after a store manager admitted to racially profiling African Americans. The manager would signal workers whenever an African American customer entered the store. According to the lawsuit, Anissa Brown reported the racial profiling to HR and a regional manager on multiple occasions, but no action was taken.

Brown, an African American woman, alleges, in a complaint filed by ILG Legal Office, P.C. in the District Court for the Northern District of California, that she was retaliated against after reporting the store manager’s racial bias. Brown claims that African American customers would tell her that the manager was treating them differently and following them around the store. On one occasion, the store manager allegedly admitted to following an African American customer around the store because she suspected her of stealing merchandise, claiming that the customer was “putting items in her basket too fast.” In fact, the customer was a professional hairdresser who purchased hundreds of dollars’ worth of products.

The store manager’s bias was not limited just to customers. The manager assumed Anissa Brown was Hispanic; once she learned Brown was African American, Brown allegedly became a target for her prejudice. The manager would yell at and berate Brown to such an extent that customers and co-workers complained about the mistreatment. Brown also endured offensive comments, such as that she was “ghetto.”

Sally Beauty Supply did not discipline or terminate the manager even after Brown contacted HR and a regional manager multiple times. During one HR meeting, the store manager, after being directly asked by HR personnel, allegedly admitted to racially profiling African Americans. Brown claims to have also discovered that the manager was previously fired from the company for similar behavior but was then re-hired.

Brown alleges that her work hours were reduced and that she was temporarily removed from the work schedule after reporting the manager’s discriminatory actions. Brown seeks damages for discrimination and harassment, retaliation, constructive discharge, and emotional distress, as well as improved anti-discrimination training.

The case is Brown v. Sally Beauty Supply LLC, number 3:21-cv-01350 in the Northern District of California, and is assigned to Judge Donna Ryu. Brown is represented by Stephen Noel Ilg and George L. Lin of ILG Legal Office P.C (www.ilglegal.com).

Read the story on Yahoo! Finance: https://finance.yahoo.com/news/sally-beauty-supply-employs-manager-181700380.html

State and federal courts utilize several tests to analyze whether a worker qualifies as an employee. One of the more employee-friendly tests is labeled the “ABC” Test. The ABC Test rose to (more…)

Employee wins $17.2 million for lawsuit including wrongful termination and defamation claims. In King v. U.S. Bank Nat’l Ass’n, 52 Cal.App.5th 728 (2020), Timothy King alleged he was wrongfully terminated, was defamed, and suffered other employment violations. He worked for U.S. Bank and earned positive performance reviews from 2007 to 2011. King supervised four people including Kim Thakur. Ms. Thakur complained about King to HR, alleging gender discrimination. Ms. Thakur and another of King’s subordinates reported to HR that King had instructed them to falsify expense reports and meeting schedules.

King sued U.S. Bank for defamation, wrongful termination in violation of public policy (citing Lab. Code, § 200 et seq.), and breach of the implied covenant of good faith and fair dealing. The jury found in favor of King on all causes of action. The jury awarded King $6 million in damages, consisting of $1 million for harm to his property, business, trade, profession, or occupation, $4 million for harm to his reputation, and $1 million for shame, mortification, or hurt feelings.  The jury also found the company breached the covenant of good faith and fair dealing because King had done all or substantially all items required by his employment contract, but the company terminated him to interfere with the benefits of the contract.

The jury also found that, as of the date of his termination, King had earned a bonus and U.S. Bank’s desire to deprive King of that bonus was a substantial motivating reason for the decision to terminate his employment. The jury awarded King $2,489,696 in damages, consisting of $1,035,430 for past lost earnings and $1,454,266 for future lost earnings.

“The question is not whether there was substantial evidence U.S. Bank terminated King solely because it wanted to deprive him of the bonus; the question is whether there was substantial evidence to find it was a reason that actually contributed to the termination. There was such evidence.”

“The jury could have inferred from the evidence regarding the questionable timing of King’s termination coupled with the conflicting testimony as to who made the decision to terminate King, the apparent rush to terminate him, and the failure to conduct a thorough and objective investigation that U.S. Bank desired to deprive King of his bonus and it was a reason that actually contributed to the termination.” The Court of Appeal denied the employer’s arguments but agreed with certain of the employee’s arguments. It noted that the company’s witnesses changed their story over time regarding which individuals decided to terminate King.”

“An employer’s failure to interview witnesses for potentially exculpatory information may evidence pretext. (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 280, 100 Cal.Rptr.3d 296.).” The unanimous opinion included the following conclusion: “The judgment is reversed and the matter remanded to the trial court with directions to: (1) reinstate the jury’s $1 million defamation award against U.S. Bank for harm to King’s property, business, trade, profession, or occupation; (2) reinstate the jury’s $4 million defamation award for harm to King’s reputation; and (3) modify the punitive damages award against U.S. Bank to $8,489,696. The judgment is affirmed as so modified. King shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (3) & (5).)”

Wins this large are rare, so employment attorneys and employees will be looking to the King case for years as a benchmark for wrongful termination claims and other employment lawsuits.

To fight increased food insecurity resulting from the Covid-19 pandemic, our law firm ILG Legal Office, PC recently organized a fundraiser and donated $1,500 to Give With Lily, a Bay Area non-profit that helps foster children, homeless youth, and local food banks. Here’s a link to an article that was published today. https://finance.yahoo.com/news/law-firm-goes-extra-mile-133300347.html “There are almost twice as many hungry children now as there were in 2018,” Mr. Ilg adds. “I thought 7,000 was pretty far for our team to ride and run, but we know we’ve still got a long way to go to help our neighbors in need.”

Most clients are who are unfamiliar with civil lawsuits believe them to be expedient, but there are numerous common delays, or waiting periods, within the life cycle of a civil lawsuit. Many of these delays are unavoidable, regardless of the actions of the opponent. The first waiting period begins with the pleading, composed of the complaint and summons, that initiate the civil lawsuit. Once the pleading has been filed with the court, several common delays are initiated. First, the attorney for the plaintiff has 60 days after the filing date to then file a proof of service of summons. Anyone but the plaintiff can personally serve the defendant; thus, a third party generally performs that role. Many process serving companies exist specifically for this purpose. Once the third party serves the defendant, they must send the attorney the proof of service, which states when and how the defendant has been served with the initiating documents. Only then can the attorney file the proof of service of summons. Then, once the summons and complaint have been served on the defendant, the plaintiff’s attorney is required to wait at least 11 (but often longer depending on the method of service) before serving the defendant with any discovery requests.

The discovery period, where parties request documents, send interrogatories, schedule depositions, and ask for admissions, often takes up the bulk of the life of a lawsuit. When opposing counsel requests any kind of written discovery, including document production, interrogatories, and admissions, you generally have 30 days to serve a response. However, if requests are served by mail, the deadline to serve a response to written discovery is 35 days. Furthermore, if opposing counsel finds your responses to be insufficient, which is often the case, they then have 45 days after your response is served to file a Motion to Compel Further Responses.

On the other hand, depositions are, in some ways, more expedient. First, opposing counsel must provide sufficient notice, which is mandated to be at least 10 days before the deposition date. While this sounds like it is faster than written discovery requests, the reality is the parties must discuss schedules in advance. Finding a date that works for all parties is sometimes challenging and slows down the process. However, after opposing counsel serves the notice, if you plan to object, this must be done at least 8 days before the deposition date if served by mail or 3 days if served personally. With the deadlines so close to one another, it is not only recommended but is generally required that parties meet and confer regarding the availability of all involved parties. After the deposition takes place, it can take several weeks to receive the official transcript. After it is received, the client has 30 days to sign the errata notice, which confirms that all information in the transcript is true and accurate.

The waiting periods for the next portion of a civil lawsuit, known as motions, varies depending on the court venue. If the case is filed in a California court, after securing the hearing date for the motion, the deadline to both file and serve the notice of motion is 16 court days before the hearing date, although a few motions have unique timelines. Then the opposing counsel must file and serve their opposition to the motion 9 court days before the hearing date. Finally, you must file and serve your reply in support of the motion within 5 court days of the hearing date.

With the different components that make up a civil lawsuit, it is expected that the lawsuit can run over the course of several years. Hearings for motions are often continued to a further date to give parties the opportunity to come to an agreement on the matter outside of the courtroom and with minimal judge supervision. Further, if the case is to settle before trial, clients believe that means the case will be closed rather quickly and a payout will be received quickly. However, if a case does result in a settlement, some cases requires several hearings before any money is paid. For instance, in a class action case, the judge will require a hearing for Motion for Preliminary Approval of the Settlement and a Final Fairness Hearing, to ensure that the terms of the settlement are fair to all parties. This process can take several months or even years, depending on the number of drafts of the Settlement Agreement.

What this means for plaintiffs: while your claims against your employer may be legitimate, it does necessarily equate to a quick and painless resolution. You need a trusted and committed attorney to guide you through a process that can take several years. Contact us at (415)580-2574 if you would like a free legal consultation about an employment law problem.

The Plaintiff in the case of Garcia v. Border Transportation Group, LLC, California Court of Appeal Case No. D072521, was a taxi cab driver and rented his taxi from the Defendant, Border Transportation Group. Garcia drove his taxi cab in Calexico and obtained a permit from the city that allowed him to drive his taxi cab for the Defendant. After Garcia left the company, Garcia became a named Plaintiff in a putative class action against the Defendant. The claims against the Defendant included wrongful termination, unpaid wages, failure to provide minimum wage, failure to pay overtime, failure to provide wage statements, failure to provide meal and rest breaks, waiting time penalties, and unfair competition.

The Defendant filed a Motion for Summary Judgment; in deciding on the Motion the Judge used the Borello test for determining whether the members of the class were employees or independent contractors. According to the Borello test, which has been California’s gold standard tool used to distinguish between employees and independent contractors since 1989, the Defendant, or company, has the burden of depicting the workers as independent contractors. The primary test of Borello “is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.”[1] In other words, the Judge needs to establish the company’s ability to exercise control over the work details of the workers. Borello standardized multiple factors that need to be met:

(a) whether the one performing services is engaged in a distinct occupation or business

(b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision

(c) the skill required in the particular occupation

(d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work

(e) the length of time for which the services are to be performed

(f) the method of payment, whether by the time of by the job

(g) whether or not the work is a part of the regular business of the principal

(h) whether or not the parties believe they are creating the relationship of employer-employee

Through the application of Borello, the Trial Judge granted the Defendant’s Motion for Summary Judgment, by finding in favor of the Defendant’s treatment of the class members as independent contractors.

The Plaintiff class appealed the decision and while the appeal was pending in court, the California Supreme Court issued an opinion that changed the test used to distinguish employees from independent contractors. Dynamex Operations West, Inc. v. Superior Court produced the ABC test, which places the burden yet again on the company to prove an independent contractor relationship. Under the ABC test, a worker will only be considered an independent contractor if each criterion is met:

(a) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both  under the contract for the performance of the work and in fact

(b) that the worker performs work that is outside the usual course of the hiring entity’s business

(c) that the worker is customarily engaged in an independently established trade, occupation, or  business of the same nature as the work performed

By applying the ABC test, the appellate court decided that the Motion for Summary Judgment should have been denied as to the claims in the Complaint regarding the Wage Orders because part (c) was not met; the company could not prove that the workers were engaged in an independently established trade of the same nature as the work performed. However, the appellate court did not address the non-wage claims regarding wrongful termination, waiting time penalties, and unfair competition. This places workers, or plaintiffs, in a precarious position, where they can be classified as an independent contractor for certain claims and an employee for others based on conflicting tests.

Businesses must be cautious about treating workers as independent contractors because failure to satisfy any one of three criterion for independent contractor status means the worker must be given all applicable rights of an employee.

[1] https://law.justia.com/cases/california/supreme-court/3d/48/341.html

In today’s workplace, arbitration agreements between employers and employees are increasingly common. However, in the recent past, California courts have taken a somewhat controversial stance on these agreements by carving out exceptions to invalidate certain arbitration clauses. While California courts cannot use state statutory law to invalidate these agreements, since state laws disfavoring arbitration are preempted by the Federal Arbitration Act, such provisions are still subject to invalidation on the same grounds applicable to contractual provisions generally (i.e. unconscionability, fraud, duress, etc.).

Focusing specifically on unconscionability, a California Appellate court recently ruled that arbitration agreements Inter-Coast International Training, Inc. DBA InterCoast Colleges had its workers sign after it was sued for wage-and-hour class action violations, are unenforceable. In the case, Plaintiffs Anthony Nguyen and Cheryl Alexander brought a wage-and-hour class action lawsuit against InterCoast Colleges. Shortly after the case was filed in 2011, the company revised its employee handbook to include a mandatory arbitration agreement covering all employment disputes. InterCoast required employees, including many potential class members, to sign the new handbook. InterCoast then filed a motion to try and compel arbitration. The trial court denied the motion and found the arbitration agreements to be unconscionable. The court reasoned that the arbitration provisions were not sufficiently highlighted or separated from the rest of the agreement and were difficult to read, which supported the Plaintiffs’ claim of surprise. Furthermore, it also found that the agreements were unconscionable due to the company’s failure to inform employees of the pending lawsuit and how signing the arbitration agreement would affect their ability to participate in the litigation. The appellate court agreed with the lower court’s decision, adding that the agreement failed to clarify that the “provision was both forward- and backward-looking” and that it “was equally silent about class actions.” As a result, InterCoast’s arbitration agreement was deemed unenforceable.

This recent ruling highlights the importance of transparency in employee arbitration agreements. Courts will often key in on oppressive terms or unfair circumstances. While an agreement can be invalidated on fraud or duress grounds, it is much more likely to be found unconscionable. There are two aspects to unconscionability: procedural and substantive. A successful unconscionability argument requires both. First, procedural unconscionability focuses on the circumstances regarding the formation or negotiation of the agreement. For example, the appellate court found that the meetings InterCoast had where employees signed the agreement constituted surprise and were oppressive because the employees had no real bargaining power. Second, substantive unconscionability focuses on the fairness of the actual terms of the agreement. Again, the court found that InterCoast’s arbitration provision was substantively unconscionable because it failed to inform employees that they could be waiving their rights to participate in the current class action lawsuit against the company.

As such, employers need to take care in how they draft arbitration agreements and in how they have employees sign them. To increase the chances the agreement will be enforceable, an employer should, ideally, have them in place before an employee sues. Additionally, the company should inform employees of how the agreement will affect their rights, as well as how signing it will affect their ability to participate in any pending litigation, and give them an opportunity to opt-out without repercussion. Furthermore, the language of the arbitration agreement should be clear and unambiguous, especially in regards to the time and scope of the agreement. Finally, if the arbitration provision is included in a larger agreement, the company should take adequate steps to highlight this section and separate it from other parts of the overarching agreement. These steps can help prevent your company’s arbitration agreement from being found unenforceable due to both substantive and procedural unconscionability.

In a decision in March, the California Supreme Court held that when calculating the overtime rate in pay periods where an employee earns a flat sum bonus, employers must divide the total compensation earned in a pay period by the non-overtime hours worked by an employee, ignoring any overtime hours worked.

The Court’s recent decision in Alvarado v. Dart Container Corp., 2018 Cal. LEXIS 1123 (Cal. Mar. 5, 2018) changed how overtime is calculated. In Alvarado, Dart Container paid an attendance bonus of $15.00 per weekend day to employees who worked on a Saturday or Sunday and completed the full shift. This flat sum bonus was paid regardless of whether the employee exceeded the normal work shift hours. The Alvarado Court had to decide how to calculate the employee’s overtime rate in light of the flat sum bonus.

Dart argued that its formula for calculating overtime complied with federal law. Dart argued it complied by (1) multiplying the number of overtime hours by the employee’s straight time (called the “base” rate); (2) adding the total hourly pay for non-overtime work, any non-hourly compensation, and the base hourly pay for overtime work from step one; (3) multiplying the total from Step 2 with the overtime hours during the relevant pay period (called the “premium”); and (4) adding the base rate from step one with the premium from step three to get the total overtime compensation for the pay period. In addition, Dart argued that the DLSE regulation Plaintiff relied on was a void “underground regulation” and, because there was no existing valid state regulation, the formula used by the federal Department of Labor applies. That formula includes all hours in the divisor.

However, the Plaintiff argued that this formula violated the law because, according to the DLSE Manual, the flat sum bonus should be calculated using only the number of non-overtime hours worked.

The California Supreme Court agreed with the Plaintiff and relied on an outdated DLSE Enforcement Manual that said: “If the bonus is a flat sum, such as $300 for continuing to the end of the season, or $5.00 for each day worked, the regular bonus rate is determined by dividing the bonus by the maximum legal regular hours worked during the period to which the bonus applies.” While the Court agreed with Dart that the DLSE rule was an invalid underground regulation, it held that the regulation could be a persuasive application of state law.

Furthermore, the Court found that because Dart paid the flat sum bonus regardless of whether an employee worked any overtime hours on that weekend day, it should be applied to non-overtime hours in the pay period. Effectively, the Court adopted the DLSE regulation. The Court held that its decision should apply retroactively but expressly limited the holding to flat sum bonuses.

Although Alvarado modified how employers calculate certain overtime pay, the resulting difference in pay between the two formulas is often minimal unless an employee receives a large number of flat sum bonuses. Below is an example illustrating the difference between the two formulas.

Example:

Employee A works an 8-hour shift each day from Monday to Saturday, totaling 48 hours–40 regular hours and 8 overtime hours.  Employee A is paid $20 per hour and earns a $40 attendance bonus for the Saturday shift.  For purposes of determining Employee A’s regular rate of pay, the $40 bonus is divided by the total non-overtime hours worked (40 hours) for an additional per-hour value of $1.00, giving the employee a regular rate of $21.00.

Employee B, on the other hand, works only a 10-hour shift Monday and Saturday, totaling 20 hours–16 regular hours and 4 overtime hours.  Employee B is paid $20 per hour and earns a $40 attendance bonus for the Saturday shift.  For purposes of determining Employee B’s regular rate of pay, the $40 bonus is divided by the total non-overtime hours worked (16 hours) for a per-hour value of $2.50, giving the employee a regular rate of $22.50.

If the bonus were divisible by all hours worked (as permitted by the FLSA), the per-hour value of the bonus would be $0.83 for Employee A (not $1.00) and $2.00 for Employee B (not $2.50).  And, if the bonus were divisible by all potential non-overtime hours (i.e., 40 hours), the per-hour value for both Employee A and Employee B would be $0.38.  The method selected by the court, therefore, provides for a greater per-hour value (regular rate) than the FLSA method whenever overtime has been worked.

With a new year comes new laws taking effect. While Proposition 64, which legalizes the adult use of marijuana in California, is not technically a new law since it went into effect in November of 2016, recreational sales finally started this month. However, this doesn’t mean that it’s all harmony and good vibes, especially in the workplace.

In fact, despite Proposition 64 (formally entitled, “Control, Regulate and Tax Adult Use of Marijuana Act”), not much has changed regarding marijuana in the workplace—Employers can still drug test their employees for marijuana, employees can still be fired, and job applicants can be rejected for using the drug. Though proponents may decry this as unfair, the California Supreme Court dealt with medical marijuana in the workplace nearly ten years ago in Ross v. RagingWire Telecommunications, Inc., 42 Cal. 4th 920, (2008). The plaintiff, in that case, was fired for using medical marijuana, which the employer discovered through a drug test and after the plaintiff gave the company a copy of his physician’s recommendation. The plaintiff said he needed medical marijuana for his chronic back pain. He sued his former employer and claimed that he was fired because of his disability. Yet, the State Supreme Court saw things differently and ruled that employers can legally fire, or not hire, someone due to marijuana use. The Court also found that employers do not have to accommodate an employee’s medical marijuana use even if they have a valid recommendation from a doctor. While this may seem surprising, Proposition 64 explicitly states that it does not change an employer’s right to a drug test or terminate employees.

If employers choose to ban marijuana in the workplace, they should have a clear policy that they uniformly enforce. This is especially true for jobs that involve driving or construction, where no-tolerance policies are the norm.

Employers who wish to administer drug tests face technological challenges: current drug tests can only check if marijuana is in the system and cannot determine if the user is under the influence of marijuana. Because marijuana can be detected in the body long after consumption and long after the effects have subsided, an employer does not have a precise way to determine if an employee is actually under the influence while at work. Marijuana advocates argue that it is unfair to fire or discipline employees who test positive for marijuana since current testing cannot determine if a worker was actually impaired on the job versus simply having evidence of marijuana in the system from past use.

Although current testing technology has not yet provided a precise way to distinguish between on-the-job and off-duty marijuana usage, employers are generally free to determine how they will handle marijuana in the workplace, including setting a zero-tolerance policy, administering drug tests and terminating those who fail. Employers would be wise, however, to make the policy clear to employees in advance. Knowing this, employees should be cautious and try to get a clear answer to their employer’s policy regarding marijuana usage. For now, Californians will have to proceed carefully while navigating this evolving area of the law.

 

 

 

ILG Legal takes pride in representing both corporate employers and individual workers. As of 2016, our attorneys had already helped thousands of workers recover money they were owed via class action claims, particularly those focusing on unpaid wages. In 2017, the firm celebrated representing its 100th individual client, a California-based small business who had received a demand letter threatening a new employment lawsuit. We are grateful that after more than 100 clients we have an unbeatable track record: perfect reviews on all three platforms. Our Yelp, Facebook, and Avvo scores are all 5 out of 5! We also won Avvo’s Client Choice Award twice since we opened in March 2015. We believe servicing over 100 clients with perfect reviews is our greatest accomplishment to date.
“The Client’s goal is the only goal in the dispute” has been the first principle of our Mission Statement since we signed our first client in 2015. ILG Legal set out to create a more client-centered approach to legal practice. We think the stellar reviews after more than 100 clients prove that our Mission Statement is more than just words on digital paper; instead, it is a creed we live by, and our clients sense it.

Referrals

 

Many businesses live by the saying, “A referral is the best compliment someone can give us.” If that’s true we have a lot of “thank you” cards to write. We’re happy to report we’ve had many referrals from the typical sources—clients, family members, and friends. We had two highly unusual referrals of which we are especially proud.

A mediator with one of the two largest mediation companies had worked with ILG Legal once, mediating a complex case that didn’t settle at mediation but settled soon afterward. A few months later, the mediator heard of a strong employment case and sent the individual directly to ILG Legal. That was quite a compliment.

The single greatest referral, though, initially looked like an ethical violation. A few weeks after we settled a claim against a large corporation, we received a voicemail from the corporation’s General Counsel. The voicemail referenced a worker with a new claim who would likely be a great client for us. At first, listen, it sounded as if the General Counsel was calling to introduce us to someone who would sue his corporation! That would be highly unusual, if not unethical. We spoke a few days later, and it turned out the potential client was the General Counsel’s close friend who needed an employment attorney regarding a wrongful termination claim against an unrelated company. The General Counsel, who was our opponent on a single case, considered us professional and effective enough that when his close friend needed an employment attorney, he thought of us. If we had to give an award for the best referral ever, this would be hard to top.

Awards

Although less important than our perfect client reviews and diverse referrals, we were very excited to receive several noteworthy awards this year. ILG Legal was named one of the “10 Best” California Employment Law Firms in Client Satisfaction by the American Institute of Legal Counsel, and Owner Stephen Noel Ilg was named one of the Top 40 Employment Lawyers Under 40 by the American Society of Legal Advocates.

 

Thank you to all of the clients, family members, friends, mediators, and even opposing attorneys that have trusted us to help resolve their legal problems.

LGBTQ employees in the United States have become more and more visible in American society in the past few decades, but the legal issues surrounding their standing in the workplace is far from clear. While LGBTQ folks in states like California enjoy certain guarantees of recourse thanks to FEHA (Fair Employment and Housing Act) of 1992, there is still no analogous federal law in place.

This year, the Supreme Court may have to finally address this discrepancy. Various federal plaintiffs and appellants have asserted for years that Title VII of the Civil Rights Act of 1964 (banning sex discrimination) should also ban sexual orientation discrimination. Two cases—Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. 2017) and Zarda v. Altitude Express No. 15-3775 (2d Cir. 2017) have produced conflicting interpretations of Title VII in 2017, making it ripe for Supreme Court cert.[1]

Title VII asserts that discrimination based on “race, color, religion, sex, or national origin […]” 42 U.S.C. § 2000e-2(a) is prohibited. The plaintiffs in Hively and Zarda premised their federal cases on the prohibition of “sex” discrimination.

In the Seventh Circuit, Hively, a community college teacher, had applied for multiple jobs and had been denied a promotion, and was ultimately fired for, according to her, discriminatory and prejudicial attitudes about her sexual orientation. An out lesbian, she felt her identity was the primary motivation for her termination.

The judges of the Seventh Circuit skirted the question of whether to add sexual orientation as a distinct category protected by Title VII. They instead asked whether, if Hively were a man, would she be treated differently for being in a relationship with a woman? The court asserted the following:

“Hively alleges that if she had been a man married to a woman (or living with a woman, or dating a woman) and everything else had stayed the same, Ivy Tech would not have refused to promote her and would not have fired her. […] This describes paradigmatic sex discrimination.”

In no uncertain terms, the Second Circuit ruled the exact opposite in Zarda. Here, the court ruled that the plaintiff’s identity as a homosexual man did not constitute a sufficient basis for protection under Title VII’s sex discrimination protections. For this court, pink painted nails were insufficient “[…] to establish the requisite proximity between his termination and his proffered instances of gender non-conformity.”[2]

 

In contrast to the Seventh Circuit’s Hively decision, the Second Circuit ruled that Zarda’s homosexual dating habits were not considered a gender non-conforming activity and were not protected under federal law.

The circuit split makes the issue ripe for Supreme Court consideration. This dispute would provide interesting insight into rookie Supreme Court Justice Neil Gorsuch’s attitudes towards civil rights and LGBTQ issues.

While LGBTQ folks in California have strong protections against discrimination based on sexual orientation, many states have none. If the Supreme Court agrees with the Seventh Circuit, sexual orientation would be a protected category throughout the country. Practitioners, scholars, and businesses will be closely tracking developments.

[1] http://www.cnn.com/2017/09/26/politics/lgbt-employment-case/index.html

[2] https://law.justia.com/cases/federal/appellate-courts/ca2/15-3775/15-3775-2017-04-18.html

In the last year, with the Trump Administration’s various immigration bans, attempts to repeal and replace Obamacare and now overhaul the tax code, the so-called “net neutrality” issue may have flown under the digital radar for many. But a key vote by the FCC—which may occur as early as mid-December—could seriously impact businesses and consumers alike with respect to any and all Internet content they consume.

The Basics of Net Neutrality in the Obama Era: In 2015, the Obama administration issued an order reclassifying Internet service providers as if they were utilities. This means that all data on the Internet must be treated the same—and Internet companies cannot charge more money to consumers based on content, website, user, application, method of communication, amount of data used, or any other component or aspect of the web. It also means that corporations like Comcast, Verizon, and Time Warner Cable cannot block or slow Internet content for any reason.

This is what experts mean when they say “net neutrality.”

Is it Legal? In June 2016, the U.S. Court of Appeals for the D.C. Circuit upheld the Obama administration’s net neutrality rules as a valid exercise of FCC’s authority under Title II of the Communications Act as well as Section 706.

The Coming FCC Vote: However, President Trump’s FCC chairman, Republican Ajit Pai, has now announced that the FCC will hold a vote next month on whether to reverse the Obama administration’s net neutrality order. The vote will likely occur on December 14, 2017.

What Will This Mean? Internet companies such as Comcast and Verizon see the end of net neutrality as a boom to business: ending the Obama-era order would lead to billions of dollars in investment and revenue in broadband and Internet services.

But advocates of net neutrality see the end of the Obama order as a “barter[ing] off to the highest bidders of a billionaire class that dominates the political debate on so many other media platforms.”

Where you fall on the issue likely depends on how you view the Internet. Is Internet access a public good, like the Postal Service, which delivers affordable mail services to everyone, rich or poor? Or is the Internet a commodity like any other, subject to supply and demand and other free economy ideals? Do corporations have the right to control how fast or slow any given website loads? Or should all data be equal?

These issues will likely be decided by all three branches of government in the coming years, starting with the important FCC vote set to occur in December.

And if you wish to have your voice heard, the FCC is currently seeking comments on the issue of net neutrality and what the FCC describes as an “open Internet.”

You can simply to go this web link and send an email to the FCC via the email address provided in the link.

While you may have recently seen the phrase “me too” on social media following the Harvey Weinstein allegations, “me too” evidence is actually frequently used in employment litigation. In employment cases, it is often very difficult for a plaintiff to provide direct evidence of an employer’s discriminatory intent. In most cases, plaintiffs can only present circumstantial evidence to show that the employer’s actions were discriminatory. In response, the employer will argue that they had a legitimate, nondiscriminatory reason for firing the employee. Plaintiffs regularly rely on “me too” evidence to refute the employer’s claim that his/her actions were not motivated by discriminatory intent.

“Me too” evidence is usually testimony from other employees meant to demonstrate a discriminatory atmosphere. For example, in Pantoja v. Anton, an employee sued her former employer for race and sex discrimination after he called her derogatory names, inappropriately touched intimate parts of her body and made sexual advances towards her.[1] The appellate court ruled that the trial court should have allowed evidence of the defendant’s “harassing or discriminatory conduct that was witnessed by other employees but not experienced by” the plaintiff.[2] The court reasoned that such evidence showed that the defendant “harbored a gender bias and therefore tended to disprove the ostensible reason for her dismissal.”[3] Without the testimony from other employees, the plaintiff would be unable to successfully prove her employer’s discrimination. Cases like this show how powerful “me too” evidence can be in employment cases.

However, employers can also use this same type of evidence to disprove claims that employees bring against them. Sometimes called “not me too” evidence, this type of evidence is often testimony by other employees that they were not discriminated against and that the employer did not have a discriminatory intent. In fact, courts have regularly held that evidence of an employer’s favorable treatment of other employees is highly relevant in such cases. [4] Ansell v. Green Acres Contracting Co. was one of the first cases to find that an “employer’s favorable treatment of other members of a protected class can create an inference that the employer lacks discriminatory intent.”[5] As a result, defendants today often use “not me too” evidence to rebut discrimination claims by employees.

As you can see, “me too” evidence can be very powerful and influential in employment cases, for both plaintiffs and defendants. In fact, both “me too” and “not me too” evidence are often present in employment cases. In the absence of the all too rare “smoking gun,” the outcome of many employment law cases will depend on the strength of “me too” evidence.

 

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[1] Pantoja v. Anton, 198 Cal. App. 4th 87, 119, (2011)

[2] Id. at 97

[3] Id. at 114

[4] Ansell v. Green Acres Contracting Co., 347 F.3d 515, 524 (3d Cir. 2003)

[5] Id. at 524

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