Should Furloughed Employees Be Paid Accrued Vacation Time Under California Law?

Should Furloughed Employees Be Paid Accrued Vacation Time Under California Law?

May families are struggling financially in the wake of the Covid-19 pandemic.  With California’s jobless claims reaching historic levels and many employees finding it difficult to submit unemployment claims with the state’s Employment Development Department, many are California’s are wondering how to pay their bills or buy groceries.  Employees who have been furloughed or laid off with no definitive date of return in the foreseeable future should be aware of their rights with respect to their accrued and unused vacation or Paid Time Off (PTO) time.

Under California law, accrued vacation and PTO, is considered a vested wage that belongs to the employee and business closed signshould be paid out at the time of termination, be it voluntary or involuntary, such as in connection with a furlough or layoff.  An employee’s right to vacation and PTO is a long established California principle under Suastez v. Plastic Dress Up, where the California Supreme Court held vacation (PTO) accrues as it is earned and cannot be forfeited upon termination, regardless if the termination is voluntary or involuntary.   Suastez v. Plastic Dress Up (1982) 31 Cal. 3d 774.

Similarly,  California Labor Code Section 227.3 states that, unless otherwise provided for by a collective bargaining agreement, if an employer has a vacation or PTO policy that provides for paid vacation, all earned and unused vacation/PTO must be paid to the employee upon termination at his or her final rate of pay.

Many employees then ask themselves, is my furlough or layoff a termination?  Many may view their employment as continuing and they hope their employer will recall them, but they have been given no definitive date of return.  California’s Division of Labor Standards Enforcement, commonly referred to as the Labor Commissioner’s Office, has long taken the position that “if an employee is laid off without a specific return date within the normal pay period, the wages earned to and including the lay off date are due and payable in accordance with Section 201.”   DLSE Opinion Letter, May 30, 1996.   

Accordingly, employees who have been furloughed or laid off and do not have a definitive date of return within the normal pay period should be paid their accrued and unused vacation or PTO at the time of furlough or layoff.  Employees who have not received their unused vacation or PTO in these instances should consider consulting with an employment attorney about their rights.  In addition to payment of their vacation and PTO, employees may also be entitled to certain penalties for the delay in receiving their final wages.

The attorneys at Ares Law Group, P.C. have extensive experiencing representing employees with wage and hour claims.  What sets Ares Law Group, P.C. apart from other firms is its experience.  The partners at Ares Law Group, P.C. Matt D’Abusco and Cynthia Sandoval, have been practicing employment law and litigation a collective 30 years.  Prior to founding Ares Law Group, Mr. D’Abusco and Ms. Sandoval worked at a renowned and prestigious nationwide labor and employment firms representing a variety of employers, from small family owned businesses to Fortune 100 companies. As a result of this experience, Ares Law Group attorneys bring a unique perspective to each case as they understand opposing counsels’ perspective and approach defending cases, which is invaluable to Ares Law Group’s clients.

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US Women’s Soccer Team Surprised by Equal Pay Ruling

US Women’s Soccer Team Surprised by Equal Pay Ruling

On May 1st, 2020, Judge R. Gary Klausner of the Federal District Court in Los Angeles, granted summary judgment to U.S. Soccer, essentially dismissing several of the highly publicized claims central to the lawsuit in which the United States Women’s National Soccer Team alleged they were not compensated fairly in comparison to the Men’s National Soccer Team.  All that remains now are the Women’s National Soccer Teams’ claims for discriminatory working conditions in terms of travel conditions and personnel and support services, such as medical and training support.

us women's soccer team

Despite this ruling, players Megan Rapinoe and Alex Morgan have stated in no uncertain terms that they are not giving up and they are not going away. Rapinoe and Morgan, who appeared on ABC from separate locations on the Good Morning America show yesterday, expressed disappointment and surprise concerning the equal pay ruling. Morgan referred to the decision as “out of left field,” and stated that they have moved forward with an appeal.

Judge Klausner’s Ruling

Employment attorneys in Orange County who have been following the case noted Judge Klausner found the U.S. Women’s National Soccer team failed to prove their case of wage discrimination under the Equal Pay Act. Judge Klausner went on to say that simply comparing what the teams would have made under each other’s collective bargaining uch

Klausner stated the women were essentially asking the Courts to conclude that they were paid less than the men because if the women had been paid according to the men’s CBA, their earnings would have been much higher.

Rapinoe and Morgan Fire Back at Klausner’s Decision

Rapinoe stated that she believed Judge Klausner was inferring that the female players simply wanted to switch to the men’s CBA after the fact because, the women would have earned more under the men’s CBA. Rapinoe, however, pointed out that the women were not offered the men’s CBA and the CBA they negotiated for and agreed to was the most that they would have been given. She also said she believes many female athletes feel this frustration when they go into a negotiation; realizing that equal pay or anything close to what their male counterparts receive is not on the table and that this is what should be changed. The Women’s team further argued that it was not the contract, but rather the amount of pay, that was at the heart of their claims.

US Men’s National Team Players Association Supports Lawsuit by Women’s Team.

Yesterday, a statement appeared on the US Men’s National Team Players Associations website supporting the actions of their female counterparts. One section of the statement said they received the news that the female players were planning an appeal on Klausner’s decision and that they had their full support in doing so.

According to our employment attorneys, a trial date for the remaining claims of discriminatory working conditions is scheduled for June 16, 2020. The Women’s National Soccer Team may appeal the ruling once there is a final judgment.

 

Female Firefighter Alleges Gender-Based Wrongful Termination

Female Firefighter Alleges Gender-Based Wrongful Termination

Female Firefighter Alleges Gender-Based Wrongful TerminationPresley Pritchard

Our employment attorneys have learned that a female firefighter has taken legal action against her former employer, alleging she was fired because of her Instagram photos.

Presley Pritchard was employed by the Kalispell, Montana Evergreen Fire Rescue until 2019, when she said she was relieved of her duties after being overtly targeted because of her appearance. She stated that this included how she looked in certain apparel, such as gym attire, amid other factors related to her presence on various social media platforms. According to the Daily Inter Lake, a wrongful termination lawsuit has now been filed by Pritchard, in which she alleges she was a victim of gender discrimination.

Pritchard Accuses Employer of Wrongful Termination

The lawsuit states Pritchard’s status as a fitness influencer caused her to be unfairly singled out by her employer. Twenty-seven-year-old Pritchard has approximately 100,000 Instagram followers. This is the social media platform on which she usually shares videos and pictures of her workout routines, as well as uplifting messages for other individuals interested in physical fitness. She also does a bit of promotion for several wellness brands with which she has partnerships.

Pritchard maintains that her online presence was entirely separate from her job, but it created issues as far back as 2018, when Evergreen Fire District Board member Jack Fallon voiced concerns about her account.

It was at that point that Pritchard said she began getting called in for “everything” and felt like she was continuously “walking on eggshells.”

According to Vice.com, the former firefighter claims she was reprimanded approximately 20 times for issues associated with her social media accounts, including photos she posted and the attire she wore when headed to the gym. Although the majority of Pritchard’s photos show her in workout clothes, she also posted pictures of herself in bathing suits, shooting guns, promoting products, and also posing with other people.

Female Firefighter Alleges She Was Issued Men’s Uniform Pants

Pritchard claims she was issued men’s uniform pants and at one point said, “Am I supposed to leave my butt at home?” She stated that she showed Vice numerous pictures of male firefighters posing shirtless on similar sites and pointed out that they were from the same department, highlighting what she believes was gender discrimination. She also told Vice she thought the double standard favoring males was hypocritical.

The former firefighter stated that she was ultimately fired following a request from her supervisors to remove various pictures of herself in her work uniform. They purportedly told her that the pictures blurred the line between her personal brand and her employment. Pritchard said that an attorney told her it was not necessary to remove the pictures, as there was no social media policy set forth by her department at the time of her employment.

Nevertheless, Pritchard maintained she was terminated for refusing to remove the photos. The lawsuit was filed in December and cited wrongful termination due to gender discrimination and a double standard that favored men. According to the most recent data from the National Fire Protection Association, NFPA, only 7% of all firefighters are female.

According to our employment attorneys in Orange County, Pritchard’s lawsuit is still underway and her case is under review by a state investigator. She has been able to apply for unemployment in the meantime.

Former Tinder Executive Sues for Sexual Assault

Former Tinder Executive Sues for Sexual Assault

Tinder Icon on PhoneOur employment law attorneys recently heard about the story of Ms. Rosette Pambakian, who filed a lawsuit against the parent companies behind Tinder and its former Chief Executive Officer, Gregory Blatt. Ms. Pambakian formerly served as the company’s VP of communications, and alleges in her lawsuit that she was fired in retaliation for bringing forth sexual assault allegations against Blatt.

The Blast obtained court documents that outlined Ms. Pambakian’s claims that she was harassed and assaulted in December, 2016 at the company’s holiday party. Ms. Pambakian alleges that Blatt approached her at the party and made a series of lewd remarks and inappropriate sexual advances.

Ms. Pambakian states that following Blatt’s advances, she left the party with friends, only to have Blatt show up to their hotel room at approximately 2 a.m., at which point Ms. Pambakian claims she was sexually assaulted.

Following the alleged assault, Ms. Pambakian said she told then-Chairman and former Tinder CEO, Sean Rad, about what happened. However, she states that the company ignored damning facts, never interviewed key witnesses, and failed to conduct a meaningful investigation because they were afraid to “risk their bottom line.”

Ms. Pambakian states she was put on administrative leave and in the course of time, was unjustifiably terminated. She is now suing for wrongful termination and retaliation, gender violence, sexual battery and negligence, for which she is seeking unspecified damages.

A representative for the Match Group, Tinder’s parent company, stated that they cannot comment on the lawsuit because they have not yet seen it. They did, however, forward a letter that was previously sent to Ms. Pambakian from their Chief Executive Officer, Mandy Ginsberg.

The letter, Ms. Ginsberg stated that Pambakian was not terminated due to reporting Blatt for sexual harassment, because no such report was ever made. Ms. Ginsburg further stated that although she was not the CEO at the time of the alleged incident, she had knowledge of Ms. Pambakian being interviewed on several occasions during which she made no accusations of sexual harassment. Tinder has declined to comment on the suit.

McDonald’s Faces 25 New Sexual Harassment Allegations

McDonald’s Faces 25 New Sexual Harassment Allegations

For the third consecutive year, McDonald’s Corporation must respond to allegations of widespread sexual harassment of female workers by male managers and coworkers. Protests concerning low wages began over seven years ago, but the workers have now added sexual harassment and discrimination to their list of workplace grievances. Last week, sexual harassment complaints were filed by 25 workers with assistance from the labor group Fight for $15, and the sexual harassment attorneys of the Time’s Up Legal Defense Fund. The claims allege a broad range of incidents including groping, lewd comments, and retaliation by management.

More Than 50 Harassment Complaints Over Three Year Period

Over the past three years, McDonald’s has had more than 50 complaints about various types of harassment in the workplace. Sexual Harassment attorney, Eve Cervantes, who is representing one of the women, stated that some of the alleged victims were as young as sixteen. Three of the complaints were filed as civil rights lawsuits.

The complaints of sexual harassment and gender-based discrimination specifically included requests for sex, indecent exposure, inappropriate touching, and retaliation for reporting such conduct. In one complaint, Jamelia Fairley, a Florida employee alleged that for several months she was sexually harassed at the McDonald’s where she was employed. Her allegations included hearing lewd comments made about her daughter, who was only a year old at the time. Fairley alleges that her hours were reduced after the harassment was reported.

Another worker, Kimberly Lawson, expressed a desire to see McDonald’s recognize a union, which would assist employees to address issues such as sexual harassment, workplace violence, and low pay. Lawson filed a complaint last year with the Equal Employment Opportunity Commission–EEOC–alleging that she was groped by a coworker, but that her manager began to sexually harass her as well, after ignoring her complaint.

A McDonald’s spokeswoman declined to comment on Lawson’s filings with the EEOC; however, Steve Easterbrook, the company’s CEO, stated that McDonald’s is dedicated to ensuring that workers can enjoy a harassment-free and bias-free workplace.

High Profile Activists Join the Fight

Actress Padma Lakshmi and other high-profile activists joined an employee protest in Chicago. In addition, an open letter was sent to Easterbrook from Time’s Up concerning sexual misconduct and harassment in the McDonald’s workplace. The company will be faced with activist pressure from within and without at its upcoming shareholders meeting, and tensions are rising. Fight for $15, a higher wages advocacy group, is pinning its actions to the event, although the group cannot be present during the meeting, which is an investors-only gathering. In some cities where rallies were held about the company’s handling of harassment complaints, protesters were joined by Democratic presidential hopefuls.

The incidents are alleged to have taken place at franchise and corporate stores in 20 cities, with some workers contacting sexual harassment attorneys to handle their suits. The company promised more action in the future to ensure a safe, harassment-free workplace in all its locations.