Contact us Today     (949) 240-8595

Category Archives: Personal Injury Blog

Court Finds Meal and Rest Period Compensation is a Wage

Court Finds Meal and Rest Period Compensation is a Wage

In a March 7, 2013 decision in the case of Abad v. General Nutrition Systems Inc. U.S. District Court Case No. 8:09-CV-00190-JVC-RNB, U.S. District Court Judge James V. Selna ruled that Meal and Rest Period Compensation is a Wage. The Plaintiffs in that matter are represented by Jeffrey Spencer of the Spencer Law Firm.

Defendant GNC filed a Motion for Summary Judgment arguing that in light of the California Supreme Court decision Kirby v. Immoos Fire Protection, Inc., 53 Cal.4th 1244, (2012) and the U.S. District Court Decision Jones v. Spherion Staffing LLC, LA CV11-06462 JAK, 2012 WL 3264081 (C.D. Cal. Aug. 7, 2012) meal and rest compensation was a penalty, not a wage and could not be the basis of a claim for waiting time penalties under California Labor Code §§201-203or for inaccurate wage statements under California Labor Code §226.

The Court rejected GNC’s reasoning and declined to follow Jones v. Spherion Staffing LLC. The Court found that the holding in Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094, (2007) that the additional hour of wages owed for violation of California Labor Code §226.7 (failure to provide meal and rest periods) is a wage and not a penalty is controlling. Therefore Plaintiffs can bring claims for waiting time penalties and inaccurate wage statements based upon GNC’s failure to pay meal and rest compensation and its failure to include meal and rest compensation in the plaintiff’s wage statements. A copy of the complete order is available here:

Abad v. GNC Abad v. GNC (59 KB)


Texting as Detrimental to Driving As Alcohol

There is a wide body of research that has compared the effect that texting while driving has on a person’s driving abilities, with the effect that alcohol does. Yet another study proves such an association, and finds that using cell phones while driving may be just as detrimental to a driver’s skills as alcohol use.

What Los Angeles car accident lawyers find intriguing about this study is that it finds a similar effect from both texting while driving as well as the use of hands-free sets while driving. California currently has a ban on the use of handheld phones while driving, although drivers are free to use a hands-free set to have a cell phone conversation at the wheel. The study however proves that both texting as well as the use of hands-free sets is equally detrimental to driving, and the effects of such practices are equivalent to intoxicated driving.

The study was based on a small sample of 12 students, who were made to undergo to 2 driving simulation tests. The first test was undertaken after having a few alcoholic beverages, and the students underwent the 2nd test while using a hands-free cell phone.

The participants were given the task of maintaining the position of the car in the center of the left lane, at a constant speed of between 40 and 50 mph. The researchers found that when the participants were having a simple conversation on the hands-free set however, their level of distraction was equivalent to an alcohol level of approximately .4 g per liter. When they were having a phone conversation that required a lot of attention, their level of distraction was equivalent to a blood-alcohol level of 0.7 g per liter.

New California Hands-Free Texting Law Is Dangerous

Over the vast couple of weeks, California motorists have been able to text message, and send and receive e-mails while driving as long as they’re using a voice operated system or hands-free set. However, California car accident lawyers fear that this practice simply increases the number of inattentive drivers on our roads.

A new law allowing motorists to use voice-operated sets to send and receive text messages while driving, recently went into effect. The law seems to be very poorly thought out. There is an increasing body of evidence that has indicated that a person’s attention is affected if he is using a cell phone while driving, no matter whether it is a hands-free set or a handheld cell phone. In fact, a hands-free set may be more dangerous, because a person may be under the false security that he’s using a hands-free set, and is therefore safe.

Several studies including those conducted by the University of Utah have clearly shown that people are significantly impaired when they use a cell phone, no matter whether a handheld cell phone or a hands-free set. For example, in one particular study conducted by the University of Utah, cell phone users and their driving performance were compared to drivers under the influence of alcohol, using a simulator.

The researchers found that the cognitive impairment in the participants who were using a cell phone was almost similar to the participants who were driving with a blood alcohol level of .08%.

This is no need for more evidence about the dangers of using a cell phone while driving, regardless of whether it is a hands-free set or a handheld phone. Allowing drivers to receive and send text messages while driving using a voice operated set, places motorists in danger.

Catholic Teacher Who Was Fired for Unmarried Pregnancy Files Lawsuit against Church

Church analysts and California employment lawyers are watching an interesting new lawsuit closely. The lawsuit has been filed by an unmarried Catholic schoolteacher, who says that she was terminated from her job because she became pregnant.

The lawsuit has been filed against the Roman Catholic Archdiocese of Cincinnati by Kathleen Quinlan, a first grade teacher at the Ascension Catholic School. She claims in the lawsuit that she informed the school principal that she was expecting a baby. She claims that the principal told her that she should either resign, or expect a termination. She was given 3 days to clear out her things from the classroom.

Her termination letter clearly stated that she was being terminated because she violated a section of her employment contract. Under the terms of the contract, she was required to comply with the philosophy and teachings of the Roman Catholic Church. Quinlan later gave birth to twin girls.

Her lawyers insist that because she is a non-ministerial employee of the Church, she is not subject to any morality clauses. In her lawsuit, Quinlan also insists that male teachers, who are in the same capacity at the school, are not fired for engaging in premarital sexual relations. Her lawsuit seeks back pay as well as damages.

This is not the first time that the Cincinnati archdiocese has been faced with a lawsuit like this. Earlier, another single Catholic teacher who became pregnant through artificial insemination had filed a lawsuit against the Cincinnati Archdiocese. The Archdiocese said that the single woman acted against the Roman Catholic Church philosophy by getting pregnant using artificial insemination. Responding to that lawsuit, the Church claimed that artificial insemination was immoral, and completely against Roman Catholic Church doctrine. That lawsuit is still pending.

EEOC Concludes Wet Seal Discriminated against African-American Workers

Decades after the passing of civil rights laws, California employment lawyers find that discrimination against people of color continues to exist in the American workplace. The Equal Employment Opportunities Commission has now concluded that clothing retailer Wet Seal discriminated against African-American employees. According to the Equal Employment Opportunities Commission, corporate managers at the company openly stated that they preferred employees who had a certain look that was predominantly white, blond, blue-eyed and thin.

The investigation by the Equal Employment Opportunities Omission was triggered after the chain fired a store manager called Nicole Cogdell. Cogdell was terminated from employment, along with at least 3 other black employees.

According to the complaint against Wet Seal, the termination came soon after a Wet Seal senior vice president inspected several stores in the area, and came to the conclusion that the store staff was dominated by African-Americans. She allegedly sent out an e-mail to the other executives of the company, with the subject” African-Americans dominate-huge issue.”

Cogdell filed a lawsuit claimed that the store that she ran was one of the most profitable stores for Wet Seal, and that this termination was based on her color. According to her lawsuit, even though she had an exemplary track record, she was determined as being “not right” for the chain. She complained to the higher-ups at the chain about this treatment, and many other African employees at the chain also wrote to Cogdell, claiming that they were subjected to racial bias of the chain.

However, Wet Seal ignored those complaints, and took no corrective or remedial action. The employment discrimination lawsuit that Cogdell filed against Wet Seal is seeking class-action status.

Sexual Harassment Victims Often Subject to Condemnation

Persons, who are subjected to sexual harassment in the workplace, may also be subjected to condemnation from others, who believe that they would be much more confrontational if they were in a similar experience. An interesting new study provides interesting clues to California sexual harassment lawyers on how people react when confronted with sexual harassment.

The study conducted by researchers at the University of Notre Dame finds that when most people are confronted with sexual harassment, they simply do not stand up for themselves as strongly as they predict they will. Because they are unable to stand up for themselves as strongly as they believe they would have had, they are much more willing to condemn passive victims of sexual harassment.

The study is titled Doubled Victimization in the Workplace: Why Observers Condemn Passive Victims of Sexual Harassment. In the study, the researchers offer the theory that many victims of sexual harassment are simply not able to confront the harassment of the harasser as strongly as they believe they will. However, these same people are much more likely to be very condemning of other passive victims of sexual harassment, who do not stand up for themselves.

As part of the research, the researchers conducted several studies. In the first 2 studies, participants insisted that they would be much more confrontational in the face of sexual harassment than passive victims. The researchers found that this kind of attitude typically leads to condemnation and judgment of other passive victims. That kind of condemnation could include a failure to work with the victims of sexual harassment.

In the rest of the studies, the researchers identified the failure to understand what might possibly lead victims to become passive in the face of sexual harassment, and aimed at reducing condemnation of passive victims of sexual harassment.

New Class Action Lawsuit Alleging Gender Discrimination by Wal-Mart Filed in California

On October 25th, new class action alleging gender discrimination by Wal-Mart was filed in the United States District Court for the Northern District of California. The United States Supreme Court filed the suit following a dismissal of a nationwide class action lawsuit.

Cases like this are important to firms like the Spencer Law Group—a California-based law firm composed of helpful and experienced attorneys who specialize in Class Action Lawsuits, including those filed on the grounds of employment discrimination.

Suit Dismissed Because Class Members Lacked Commonality

In the initial class action lawsuit, the plaintiffs alleged that Wal-Mart’s pattern of gender discrimination with matters related to pay and opportunities for promotion affected more than 90,000 current and former employees nationwide. This suit originated in 1999 after Stephanie Odle was fired after complaining that the company had discriminated against her because of her gender. Odle complained to Wal-Mart management after she learned that a male employee with the same job title was earning $23,000 more per year despite having less experience.

The Supreme Court rejected the initial lawsuit, claiming that the class was not bound by a specific commonality. According to the court’s dismissal, a class action lawsuit cannot be made up of a collection of individual claims. In order to be certified as a class, plaintiffs must identify a question of law or fact that is common to all of the potential class members. The court ruled that the nationwide class of plaintiffs was too broad to be certified as a cohesive class, and that the individuals’ involved lacked commonality that was representative of all class members.

New Lawsuits Filed

After the dismissal by the Supreme Court, several new class actions have been filed, representing smaller classes of employees. Similar suits have been filed in Tennessee, Texas, California and Florida.

The Texas lawsuit was dismissed earlier in October after the judge ruled that the suit was barred by the statute of limitations. No decision has been made regarding the viability of the lawsuits filed in Tennessee and Florida. United States District Judge Charles Breyer of California allowed the lawsuit to proceed, stating that a class limited to current and former California employees could be certified. The California class excludes store managers and pharmacists.

California’s Class Action Suit

According to the California suit, women who have seniority and higher performance ratings than similarly situated male employees regularly earn less money than their male counterparts. This income disparity occurs regularly even when objective factors such as seniority, store location and performance are considered. Managers are not required to base pay rates on objective matters. Rather, they are authorized to make wage and salary determinations based on their own criteria. These policies have had a disproportional adverse impact on female employees.

The plaintiffs allege that more than 90,000 women who are current and former employees of Wal-Mart and Sam’s Club stores in California have been adversely affected by the company’s policies.

Betty Dukes, the lead plaintiff in the suit that was dismissed by the Supreme Court, is an African American woman who worked at a Wal-Mart store in Pittsburg, California. Four other plaintiffs are named in the lawsuit. They allege that they were asked to take on extra responsibilities without receiving extra pay. They claim that positions they were qualified for were consistently given to men with less experience. The plaintiffs also allege that, once they complained about the discriminatory treatment, the management retaliated against them. They are seeking punitive damages and injunctive relief.

Obesity-based Discrimination on the Rise

Obese Americans may struggle not just with weight and self-esteem issues, but also, lack of acceptance by society. Over the years, this lack of acceptance actually translates into pure discrimination, with many obese Americans reporting that they are frequently passed over for jobs and promotions, or left out of social circles.

According to a new poll by Harris Interactive/Health Day, it’s not just a person’s weight and medical health that may be affected by obesity. The excess weight also affects a person’s employment prospects, his job life as well as social life.

Among the people who were categorized as “obese” or “morbidly obese,” 52% said that they have faced discrimination when they applied for a job. They also have been passed over for promotions.

Approximately 2/5th of these people said that they are also discriminated against socially. About 36% reported that they had faced discrimination when they entered theaters or restaurants, when managers told them that seats were not available.

What is even more disturbing to California discrimination lawyers, is that unlike the kind of discrimination that exists against, say, lesbian and heterosexual people, discrimination against the obese, seems to be fairly socially acceptable. The poll found that approximately 61% or a majority of the respondents did not find it offensive to make derogatory comments about a person’s weight. Many Americans do not consider it strange that an employer would use a person’s weight before making decisions about whether to hire the person for a particular job.

The survey also found that the number of people who reported stigmatization or discrimination because of their obesity, increased with their weight. 6% of people who were categorized as overweight reported being discriminated against, but among people who reported that they were obese, those numbers increased to 20%, and among people who reported that they were morbidly obese, the numbers increased to 34%.

Chick-Fil-A Has History of Workplace Discrimination

Fast food chain Chick-fil-A has recently been in the spotlight due to its anti-gay policies, and strong support for anti-gay groups. However, the chain’s position against homosexuality is not the only kind of discrimination that Chick-fil-A has been guilty of. A look at the chain’s history will show any California employment lawyer that Chick-fil-A has a poor record where workplace discrimination is concerned.

A look at the company’s history shows that Chick-fil-A has been sued at least 12 times since 1988 alone based on workplace discrimination and sexual harassment. In one lawsuit that was filed in 2002, a former restaurant manager at the chain, who happens to be a Muslim, sued the chain, alleging that he was fired because he did not participate in a Christian prayer meeting. That lawsuit was settled.

Recently, a former female employee at Chick-fil-A in Georgia filed a lawsuit against the chain. Her lawsuit alleged that she and other female employees were subjected to gender discrimination. According to her lawsuit, during her stint as a general manager at one of the chain stores, she was frequently subjected to remarks that as a mother, she should be at home with her children, and not working.

Her lawsuit alleged that there was a specific pattern of discrimination against women at the chain. One manager at the Georgia restaurant was demoted after she had her baby, and was replaced by a man. Several other women have also alleged that the Georgia restaurant demoted them without any cause.

In California, another lawsuit filed against a Chick-fil-A restaurant alleged sexual harassment. According to plaintiffs, when they took their complaints of sexual harassment to the owner of the restaurant, they were fired, and reported to immigration authorities in an attempt to have them deported from the country.

Son Sues Parents for Overtime

It’s not every day that a California employment lawyer comes across an overtime lawsuit that involves a family business. A New York City-based mom-and-pop store is finding itself embroiled in an overtime lawsuit filed by the son of the couple that runs the store.

The lawsuit claims 80 hours of overtime, saying that that the son had worked that many hours without being paid overtime wages. The lawsuit is threatening to tear the family apart. The parents insist that the lawsuit is being filed in retaliation because they fired their son after he began a business that competed with their business. According to the parents, the son bought his own ice cream truck, and tried to directly compete with the mom-and-pop business. The parents then fired their son.

He has now filed a lawsuit claiming overtime wages. The son claims that he was fired for complaining about the long hours without any overtime pay.

This lawsuit is likely to draw some snickers, but it does raise interesting questions about whether family-run establishments like mom-and-pop stores do owe their employees overtime or even, for that matter, a minimum wage. It may make sense that you do not take wages from your own company when it is your own business. However, if you have employed a spouse, your children, and other relatives in the business, then it may be reasonable for them to expect that they may be paid for their work.

The mother and father in this particular case have claimed that their son occupied an executive position in the company, and therefore, he was exempt from any overtime payments. However, considering that the son was being paid a wage of $10 per hour at the store, it remains to be seen whether their argument that he was an executive will hold much weight in court.