With Cedar Point decision, Supreme Court Conservative Supermajority Takes Aim at CA Workplace Regulations
The Supreme Court handed down a decision on June 23 in Cedar Point v. Hassid, a case concerning union access to California farms. Since the 1960s, the California Agricultural Labor Relations Act has guaranteed that union organizers enjoy limited access to agricultural laborers at their places of work. In 1976, the Supreme Court dismissed business leaders’ challenges to the law as a violation of property rights.
The current Supreme Court’s conservative supermajority has a different view of the issue. On Wednesday, the Court ruled in a 6-3 decision that the California law violates the Fifth Amendment, and that the law allows for public use of private property “without just compensation.” At oral arguments, Justice Amy Coney Barrett suggested a fee of $50 per “taking” of the farms’ property.
Organized labor often depends on being able to access the workplace, particularly in the case of agricultural workers, many of whom work in risky conditions for low wages, are immigrants, and may not speak English. In this respect, the decision is disastrous for organized labor in the state. However, the decision could also affect other workplace regulations, including nondiscrimination regulations. As Slate’s Mark Joseph Stern wrote, “[The decision] undermines the broader legal framework that permits the government to impose all manner of regulations on private property, including workplace safety laws and nondiscrimination requirements. With Cedar Point, the Supreme Court has handed business owners a loaded gun to aim at every regulation they oppose.”
On June 23, Lauren Teukolsky moderated a panel entitled, "Distress Call: How to Evaluate Claims of Financial Distress by Defendants in Wage-and-Hour Cases." The panel was part of an Advanced Wage & Hour Conference held by the California Employment Lawyers Association (CELA), a statewide organization of nearly 1,300 plaintiff-side employment attorneys. Ms. Teukolsky is currently the Co-Chair of CELA's Wage & Hour Committee. Panel speakers included Vanessa Hill, a CPA with Evidentia Consulting; Jim Zimmer, a licensed private investigator and President of Benchmark Investigations; Lynn Frank, a mediator with more than 30 years of experience helping parties to resolve complex litigation; and Ken Yoon, a wage-and-hour class action attorney with significant experience. The panel provided practical guidance to plaintiffs' attorneys who are faced with claims of financial distress from defendants, both companies and individuals.
Ms. Teukolsky is a frequent speaker at conferences on topics of employment law and litigation. She has two upcoming speaking engagements: one virtual appearance for the California Lawyers Association (formerly State Bar) Labor & Employment Section on emerging wage and hour trends, and one in-person appearance in Las Vegas for the Consumer Attorneys Association of Los Angeles (CAALA) Annual Conference on opposing motions to compel arbitration.
The Hollywood Reporter reports that a new lawsuit against Chateau Marmont owner Andre Balazs has been filed by by his business partners at Mercer in Manhattan. The lawsuit asks that Balazs be removed as Managing Director of the storied Mercer Hotel, and prohibited from calling himself an "owner" of the Mercer based on his gross misconduct in running the Chateau.
The suit alleges that the “widespread, negative press regarding Balazs’ personal life combined with the very public allegations of discrimination, abuse, misconduct and neglectful management . . . at ‘sister hotel’ Chateau Marmont has been incredibly harmful to the [Mercer] as a result of its association with Balazs….”
On January 27, 2021, Teukolsky Law filed a race discrimination and sex harassment lawsuit against Chateau Marmont on behalf of Thomasina Gross, an African-American woman who formerly worked as an events server. The complaint alleges that Ms. Gross was repeatedly passed over for promotions in favor of white employees and sexually harassed by guests despite complaints to management. The Chateau has required Ms. Gross to dismiss her lawsuit and file her claims in arbitration, a non-public proceeding with no jury and limited discovery rights. Through her attorneys, Ms. Gross asked the Chateau to reconsider its request to move the case to arbitration so that the public could follow the proceedings, but the Chateau refused. The case is now pending in private arbitration.
Teukolsky Law Asks Chateau Marmont To Reconsider Request To Move Lawsuit from Open Court To Secret Arbitration Proceedings
Last week, Teukolsky Law asked Chateau Marmont's attorney to reconsider the Chateau's request that TL client, Thomasina Gross, dismiss her race discrimination and sex harassment lawsuit against the famed Hollywood institution and refile her claims in private arbitration proceedings. Here is the letter:
Dear Mr. Stone:
We are in receipt of your March 10 letter in which you ask our client, Thomasina Gross, to dismiss the lawsuit she filed in Los Angeles Superior Court against your client, the Chateau Marmont, and instead file her race discrimination and sexual harassment claims with JAMS, a private arbitration company whose proceedings are not open to the public. We recognize that the arbitration agreement Ms. Gross signed when she started working for the Chateau appears to be enforceable. However, we would ask that you reconsider your request for the following reasons.
First, the Chateau’s treatment of its employees is a matter of substantial interest to the public and should accordingly be evaluated in a public forum, so that the public can make informed decisions about whether or not to give their business to the Chateau. Whereas arbitrations are essentially a “secret system controlled by the wrongdoers,” court cases ensure that the public has access to information that affects them. If Ms. Gross’s claims proceed in arbitration, none of the documents filed in the case will be a public record, and the testimony provided by witnesses will not be accessible to the public.
Second, a plaintiff’s ability to conduct discovery to learn information about the defendant’s case is far more constrained in arbitration than in court. For example, the JAMS Employment Arbitration Minimum Standards provide for only one deposition per party, while California state courts allow for the parties to take the depositions of all witnesses with relevant information. Given the nuances involved in evaluating a race discrimination and sexual harassment claim, we believe broader discovery is necessary.
Third, while forced arbitration is unfair to all workers (Americans are more likely to be struck by lightning than to win their cases in arbitration), it disproportionately affects female workers and Black workers, who are the most likely groups to be bound by forced arbitration. Meanwhile, only 28.84% of JAMS arbitrators are women, and only around 4% are African-American. We believe that our client, an African-American woman alleging race discrimination and sexual harassment in the workplace, deserves to have her case heard by a jury of her peers that is reflective of the community of Los Angeles.
For these reasons, we would respectfully request that you permit Ms. Gross to proceed with her claims in court, and not require her to proceed in arbitration. We appreciate your consideration of our request.
Last Friday, Gavin Newsom signed SB 95, a bill that guarantees up to 80 hours of supplemental sick leave for employees affected by COVID-19. This includes workers required to quarantine and those needing to care for family members with COVID.
The protections will last through September 30 of this year and are retroactive to sick time beginning January 1 of this year. While businesses with 25 or fewer workers are exempt from the new law, they may receive a federal tax credit for offering supplemental paid sick leave.
This bill expands the types of employees entitled to supplemental paid sick leave by covering some of those who had been covered under the Families First Coronavirus Response Act (FFCRA), which expired at the end of 2020. With the expiration of that legislation, the only employees with expanded sick leave protections were those covered by local jurisdictions that had extended their ordinances. SB 95 covers employees across California who work for larger employers and are unable to work due to COVID-19 and picks up where FFCRA left off.
In addition to expanding worker eligibility, the bill expands the reasons employees can take time off work. For example, COVID-19 leave did not previously apply to time employees spent getting vaccinated or recovering from side effects of receiving the vaccine. Under SB 95, covered employees can now use the supplemental leave for these purposes.
If you believe you have been denied sick leave, contact Teukolsky Law today for a free consultation.
California law requires employers to provide a 30-minute meal period for every five hours worked. This means that an employee who works more than five hours is entitled to one 30-minute meal break, and an employee who works more than 10 hours is entitled to two 30-minute meal breaks. Meal breaks are unpaid, and the employee must be relieved of all duty and allowed to leave the premises. When an employee is not provided with a legally-compliant meal period – whether it was missed entirely, shorter than 30 minutes, or provided too late in the shift – the employee is entitled to a penalty payment of one hour of pay.
Many employers round employee time punches to the nearest 10- or 15-minute increments. For example, if an employee clocks out for lunch at 12:00 p.m., and clocks back in at 12:23, the timekeeping software will round the meal break up from 23 minutes up to 30 minutes. The meal break will appear compliant with California law, even though the employee received less than the required 30 minutes for lunch.
On February 25, the California Supreme Court ruled that employers are not permitted to round an employee’s time punches for purposes of recording meal breaks. The Court handed down the ruling in a class action case brought by nurse recruiters who work for AMN Services LLC, a healthcare staffing company. In the opinion, the Court said that California law requires precise timekeeping for meal breaks and that subtracting even a few minutes is contrary to the important health and safety reasons for providing breaks, such as reducing stress, reducing workplace accidents and enabling employees to take care of important personal tasks.
Writing for the majority, Justice Liu wrote: “Within a 30-minute timeframe, a few minutes can make a significant difference when it comes to eating an unhurried meal, scheduling a doctor’s appointment, giving instructions to a babysitter, refreshing oneself with a cup of coffee or simply resting before going back to work.” The Court further ruled that if the employer’s records show a meal break violation – i.e., a missed, short or late meal – this creates a presumption that the employee is entitled to penalty pay. To avoid liability, the employer must rebut the presumption by showing that the employer was provided the opportunity to take the break and chose not to take it.
If you believe you have been subject to wage-and-hour violations at work, including missed meal or rest breaks, contact Teukolsky Law today for a consultation.
Following Teukolsky Law’s Suit Against Chateau Marmont, DA George Gascon Issues Statement Supporting Workers
LA Country District Attorney George Gascon has issued a statement in support of workers following a suit filed by Teukolsky Law against the legendary Chateau Marmont hotel.
District Attorney Gascón stated: “I am aware of the civil lawsuit and allegations made regarding the Chateau Marmont Hotel. Workers can often feel powerless when dealing with hostile workplaces, dangerous work conditions, and wage theft. I am committed to protecting workers in Los Angeles County.”
Gascon’s statement references the lawsuit filed on January 27 by former employee and plaintiff Thomasina Gross. The lawsuit alleges that Ms. Gross, who is African-American, was repeatedly passed over for promotions and work assignments in favor of white candidates and colleagues. The suit also alleges that Ms. Gross faced unwanted touching from guests as she served them, and that management did not help when she attempted to report this conduct.
Gascon, who has been in office since December, campaigned on a progressive platform of reforming the DA’s office. His statement follows actress and activist Jane Fonda’s pledge to boycott the Chateau Marmont until it has addressed the workers’ concerns.
The Hollywood Reporter wrote an article about Gascon’s statement, which can be found here.
If you believe you have experienced racial discrimination or sexual harassment at work, contact Teukolsky Law today for a free consultation.
As Prop 22 goes into effect in California, workers and unions are already fighting back against the measure, which was largely propped up by tech giants’ $200 million “Yes on 22” campaign.
Several drivers and SEIU filed a petition in California Supreme Court on January 12, 2021 seeking to overturn the new ballot measure, which aims to permanently classify gig workers as independent contractors instead of employees. The drivers and union allege that Prop 22 violates California’s constitution and are asking the Court to invalidate the new law, arguing that Prop 22 makes it too difficult for state legislators to implement workers’ compensation. On February 3, the Court declined to hear the suit 5-2. However, the Court said the case could be refiled in a lower court. On February 11, the drivers and union filed a similar suit in Alameda County Superior Court.
Prop 22’s destructive effects are being felt by workers statewide. The Knock LA reported last month that Vons, Pavilions, and other stores owned by Albertsons Companies in California plan to fire grocery delivery drivers later this month and will shift to a third-party delivery service that uses independent contractors. Drivers working for Albertsons Companies are currently classified as employees; the company’s Bay Area drivers are unionized and will not be affected by the change, but delivery drivers in Southern California not protected by a union lack the power to fight back against this move by the grocery stores.
If you believe you have been misclassified as an independent contractor instead of an employee, contact Teukolsky Law today for a free consultation.
The Los Angeles Times has written an article covering Teukolsky Law's most recent lawsuit today. The article is entitled, "Chateau Marmont gave coveted jobs mostly to white people, lawsuit alleges," and describes how the plaintiff, Thomasina "Thommi" Gross, who is African-American, was repeatedly passed over for promotion in favor of white candidates. The lawsuit also alleges that Ms. Gross faced constant unwanted touching from guests as she served them food and drink, and that management did not help when she reported their inappropriate conduct.
From the article: "The lawsuit doesn’t address how much money Gross is seeking, but her attorney, Lauren Teukolsky, said she would be asking for compensation for the loss of the higher salary she would have received had she had been rightly promoted, plus punitive damages."
At a press conference on January 28, 2021, Lauren Teukolsky announced the filing of a new lawsuit against Chateau Marmont on behalf of former employee Thomasina "Thommi" Gross. Chateau Marmont is a legendary Hollywood hotel known as a playground for its wealthy clientele. Ms. Gross, who is African-American, worked as an events server there from 2017 to 2020, until she was laid off due to the COVID-19 pandemic.
The complaint, which was filed on January 27 in Los Angeles Superior Court, alleges that Ms. Gross was repeatedly passed over for promotions in favor of white employees. Ms. Gross, who had over a decade of experience in high-end hotel hospitality, received far less compensation and fewer hours than her white counterparts. This was consistent, says the complaint, with the Chateau’s discriminatory preference for placing white or light-skinned people of color in guest-facing roles.
The suit also alleges that due to the Chateau’s “anything goes” party environment, guests felt free to touch and grope Ms. Gross as she served food during events. When Ms. Gross reported guest misconduct to management, the complaint alleges, they took no steps to protect her, and even retaliated by not giving her any more restaurant shifts.
Ms. Teukolsky said: “Ms. Gross has demonstrated tremendous courage by stepping forward to challenge the discriminatory practices of one of the most iconic Hollywood institutions. We hope that her bravery will lead the Chateau to take steps to protect its employees from guest harassment and to ensure that its hiring practices going forward comply with California’s powerful anti-discrimination laws.”
In an article published on January 28 in the Hollywood Reporter, Ms. Gross commented: “I don’t like having to leave my dignity at the door. It’s exhausting. We’re forced into a fight-or-flight mode. We’re conditioned to believe we have to expect this. I’m speaking out on behalf of myself and others who believe they’ll face retaliation. Changing the culture is my focus. No one should have to deal with this on a day-to-day basis.”
If you believe you have experienced racial discrimination or sexual harassment at work, contact Teukolsky Law today for a free consultation.
Lauren Teukolsky is the founder and owner of Teukolsky Law, A Professional Corporation.