Employment Law

Haeggquist & Eck Files Pregnancy Discrimination and Wrongful Termination Case Against Sharp Health Plan

Sharp Health Plan wrongfully terminated two employees who were eight months pregnant this fall because the women planned to take legally protected pregnancy leave, a new lawsuit filed by Haeggquist & Eck attorneys Alreen Haeggquist and Aaron Olsen alleges.

Plaintiffs Natali Osuna and Veronica Osuna, who had respectively worked for Sharp for 11 years and five years as enrollment specialists within the company’s finance division and had consistent histories of stellar performance reviews, were both pregnant and due to give birth around September 2016. Both planned to take protected leaves of absence through January 2017, which happened to coincide with Sharp’s plans to implement Healthedge, a new integrated software system for processing health insurance claims and applications.

The case alleges that in July, the plaintiffs were notified that they would be laid off because their department was closing. But a mere four hours after they were given the news, Sharp began posting jobs that were essentially identical to theirs, but just using the new system. Sharp planned to conduct training on the new system during plaintiffs’ planned maternity leaves, with full implementation to take place in January 2017. Both women applied for every available position they were qualified for within Sharp system and were turned down for each, according to the complaint.

“Sharp dealt our clients a stunning blow by terminating them – and leaving them without health insurance – when they were eight months pregnant,” Haeggquist & Eck Managing Partner Alreen Haeggquist said. “It wasn’t convenient for Sharp to have our clients out on legally protected leave during the company’s planned implementation of new software, so Sharp just callously cast them aside on the pretext of closing their department. What should have been a beautiful time for these women became incredibly stressful, and we look forward to vindicating their interests in court.”

The case alleges violations of the California Family Rights Act (CFRA), California’s Pregnancy Disability Leave (PDL) Laws, and the California Fair Employment and Housing Act (FEHA). Osuna v. Sharp Health Plan is pending in San Diego Superior Court.

EMPLOYEES: If you believe you have been discriminated or retaliated against at work because you are pregnant or took protected medical leave, click here or call (619) 342-8000 to contact the employee rights attorneys at Haeggquist & Eck for a free case evaluation.

New FLSA Rule To Give Over Four Million Workers the Right To Overtime Pay

The Fair Labor Standards Act (“FLSA”) sets the minimum wage, overtime pay, recordkeeping, and other standards for employment across the nation. Though states may expand those rights and provide greater protections for their citizens, the FLSA sets the baseline standard that all employers (both public and private) must adhere to.

On May 18, 2016, the Department of Labor finalized a long-awaited new FLSA rule which will increase the overtime pay protections for many workers who are classified as “white collar” exempt. Specifically, the new rule increases the minimum salary and compensation levels needed to classify Executive, Administrative, Professional, Outside Sales, and Computer employees as exempt by:

  • More than doubling the minimum salary cutoff for exemption from $23,660 annually (or $455 per week) to $47,476 annually (or $913 per week); and
  • Establishing an automatic raise in that minimum salary level every three years to account for inflation.

The new rule will go into effect on December 1, 2016 (with the first automatic raise scheduled for January 1, 2020) and will require employers to either increase current exempt employee salaries in order to maintain their exempt status or convert those employees to hourly workers covered by the overtime laws. It is estimated that the new rule will extend overtime pay protections to over four million workers within its first year of implementation.

For more information about your rights to overtime compensation, and a free case evaluation, please call us at (619) 342-8000 or contact us online.

California’s Fair Pay Act Addresses Disparity in Earnings Between Women and Men

On January 1, 2016, the new Fair Pay Act (Cal. Labor Code §1197.5) in California was amended to broaden already existing laws against gender pay inequality.  The new law is arguably the nation’s strictest (or really, fairest) fair-pay law.

For example, the former Fair Pay Act stated that no employer shall pay any individual in the employer’s employ at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and performed under similar working conditions.

The amendment to the Fair Pay Act broadened the law such that now an employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.  The notable difference in the amended law is the Fair Pay Act now does not require a comparison of wage rates “in the same establishment.” Rather, wage rates may be compared with those of the opposite sex outside of the same establishment, but whom have “substantially similar work.”

In addition, the amended Fair Pay Act adds a new subsection prohibiting employers from discharging or in any manner discriminating or retaliating against any employee because the employee invoked or assisted in any manner the enforcement of this law.  The new law also now states that an employer shall not prohibit an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging other employees to exercise his or her rights of talking about wages.

According to data cited in the legislation, women in California earn an average of 84 cents for every dollar earned by men.   The national average remains roughly 79 cents per dollar for full-time female workers, compared with their male colleagues.  With the law promoting discussion of wage rates amongst co-workers, gender pay inequality will further come to light.

For any employee receiving less than the wage to which the employee is entitled under this law, may recover in a civil action the balance of the wages, including interest, and an equal amount (essentially as a penalty), together with costs of the suit and reasonable attorneys’ fees.

If you believe you are the victim of gender pay inequality, contact the lawyers at Haeggquist & Eck, LLP.

Contract Attorneys May Be Entitled To Overtime Pay

On July 23, 2015, the Second Circuit found that the trial court erred by concluding that contract attorneys “engaging in document review per se constitutes practicing law,” and remanded the case for further proceedings on the issue.  Whether the attorneys were “practicing law” is important because if they were they would be exempt from certain wage and hour benefits and protections.

The class of document review attorneys alleged in their complaint that “a machine” could have performed the document review services because the work did not require any legal knowledge, skill or training.  Circuit Judge Rosemary Pooler found that both parties “agreed at oral argument that an individual who, in the course of reviewing documents, undertakes tasks that could otherwise be performed entirely by a machine cannot be said to engage in the practice of law.”

The definition of the “practice of law” is state-specific, but many states consider the “exercise of some legal judgment an essential element of the practice of law,” including North Carolina where this case is pending.

In sum, if contract attorneys or lower-level associates are merely conducting menial tasks and not exercising some legal judgment, they may be entitled to various wage and hour benefits and protections, such as overtime compensation that exempt employees are not entitled to.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

Did Your Employer Conduct a Background Check?

Employers routinely conduct background checks on job applicants.  These background checks include contacting former employers to pulling credit reports and criminal records. However, in order to lawfully conduct a background check, employers are required to comply with strict statutory requirements, such as obtaining your written authorization prior to conducting the background check.  The law that governs this area is the federal Fair Credit Reporting Act (“FCRA”), and if your employer failed to follow the requirements mandated by FCRA, you may be entitled to recover actual damages or an award of up to $1,000, plus punitive damages and recovery of attorneys’ fees and costs.

Prior to conducting your background check, did your employer set forth in a separate document that consists solely of a disclosure that it is going to conduct a background check? If not, you may be entitled to damages.

Did your employer take any “adverse action” (e.g., decline employment, terminate employment, etc.) against you based on a background check without first providing the above disclosures to you?  If so or if your employer failed to give you a reasonable amount of time to review the disclosures, it could be in violation of the FCRA, again, entitling you to damages.

If you feel your employer did not obtain your written consent for a background check and/or there has been a  misuse of your background check by your employer or prospective employer or if you have any questions or concerns about the same, contact the attorneys at Haeggquist & Eck, LLP.

To schedule your free initial consultation, contact us online or call (619) 342-8000 today!

SEC Sends Message To Employers: Confidentiality Agreements That Silence Potential Whistleblowers are Prohibited

The U.S. Securities and Exchange Commission (“SEC”) relies heavily on whistleblowers to report potential securities law violations. Insider knowledge of the circumstances and individuals involved allows the SEC to identify fraud and other potential violations much earlier than might otherwise be possible. So, when Houston-based global technology and engineering firm KBR Inc. (“KBR”) attempted to silence potential whistleblowers through employee confidentiality agreements, the SEC put its foot down.

In its first enforcement action regarding confidentiality agreements (In the Matter of KBR, Inc.), the SEC seeks to send a message to other companies regarding the “potential chilling effect” that confidentiality agreements, like KBR’s, have on would-be whistleblowers. KBR’s confidentiality agreement required employees to seek prior approval from the company’s legal department before discussing internal investigations with outside parties. Failure to do so, KBR warned, could lead to discipline, up to and including termination. But, such improperly restrictive language violates SEC’s Rule 21F-17, enacted under the Dodd-Frank Act of 2010, which states:

No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violation, including enforcing, or threatening to enforce, a confidentiality agreement . . . with respect to such communications.

Indeed, such blanket provisions fly in the face of the congressional purpose underlying whistleblower protections, which is “to encourage whistleblowers to report possible violations of the securities laws by providing financial incentives, prohibiting employment-related retaliation, and providing various confidentiality guarantees.”

Without admitting or denying the SEC’s charges, KBR settled the matter for $130,000 and agreed to amend its confidentiality agreements to make clear that current and former employees will not have to fear retaliation or termination or seek approval from company lawyers before contacting the SEC. Going forward, the SEC recommends that all companies review and amend their confidentiality agreements that, in word or effect, gag whistleblowers.

For more information about your rights, and a free case evaluation, please call us at (619) 342-8000 or contact us online .

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