For several months, the Ellen DeGeneres Show–named after its host–has been steeped in controversy. Our employment attorneys in Orange County can confirm that troubling reports have emerged concerning sexual harassment in the workplace, as well as claims of racial insensitivity and intimidation involving some of the show’s staffers. DeGeneres, who is 62, apologized twice to employees for the toxic work environment and said that some employees had been let go. However, an investigation is ongoing, as she was accused of fostering that very environment. Seeking the advice of an employment attorney is typically recommended if one plans to bring such allegations. With regard to the Ellen DeGeneres Show, however, three senior staffers are no longer with the show. Recently, in front of a virtual audience, the talk show host addressed the situation.
DeGeneres Expresses Regret and Speaks of Necessary Changes
In a candid monologue, DeGeneres acknowledged that things took place that never should have occurred, and she expressed her remorse to those who were affected. She made reference to her position of power and privilege, stating that such a position also comes with responsibility, which she indicated she was willing to bear. DeGeneres went on to say that numerous conversations took place in the recent past between herself and staff members, and that necessary changes were made.
The talk show host spoke of emerging as the “Be Kind Lady,” calling it a “tricky position to be in.” She received this nickname following the suicide of Tyler Clementi, who took his life in 2010 after being bullied in college for being gay. DeGeneres responded to the suicide with a strong message about the need to stop bullying of all kinds. The talk show host confirmed that although she is the kind person seen on television by her fans, she is also like everyone else in the sense that she gets impatient, anxious, frustrated, angry or sad from time to time. She referred to herself as “a work in progress,” during the virtual speech.
An Opportunity to Learn
DeGeneres spoke about how she initially got into show business to make people feel good and laugh. She said she wants her 270 employees to be proud and happy to work with her for this reason. DeGeneres also indicated that she was very sorry if she ever hurt someone’s feelings, and that if she did, she let herself down as well as that person. Later, she referred to such incidents as opportunities to learn.
DeGeneres said that despite the Black Lives Matter protests and the coronavirus pandemic, she still wants her show to be a daily hour of joy and was committed to making it the best season yet, despite the new controversy surrounding it. People Magazine reported that Portia de Rossi, DeGeneres’s wife, was backstage to show her support during the premiere and that DeGeneres received applause from her crew as she walked off the set following the taping of the announcement.
It is unclear whether or not those who are no longer with the show are pursuing legal actions. They may choose to seek legal advice from an employment attorney if this is the case.
Lawsuit Filed Against Ed Henry Alleges Sexual Assault and Harassment
According to employment attorneys in Orange County, a sexual harassment lawsuit was filed in federal court on Monday against former Fox News anchor, Ed Henry. The suit was filed by a woman previously employed by Fox News, along with a frequent guest of the network. The cable news outlet fired Henry earlier this month after receiving the complaint about his alleged willful sexual misconduct.
Multiple Defendants Named in Suit
Jennifer Eckhart, a plaintiff in the case, accused Henry of sexual assault, alleging that she was forced to have sex with him against her will in a hotel room. Cathy Areu, the other plaintiff, stated in the filing that sexually graphic messages and photos were sent to her by Henry. The case was filed in Federal Court in the Southern District of New York.
The sexual harassment lawsuit also names some of the most famous anchors of the cable news outlet as defendants, including Howard Kurtz, Sean Hannity, Tucker Carlson, and a Fox News contributor, Gianno Caldwell. Fox News hired an outside law firm that reportedly interviewed multiple eyewitnesses, managers, and the aforementioned hosts. The firm stated that Areu’s claims were utterly devoid of merit.
Attorney for Henry Alleges that Relationship was Consensual
Sexual harassment attorneys for Henry claim the relationship between Henry and Eckhart was consensual. Catherine Foti, an attorney for Henry, said that the defendant looks forward to offering evidence and facts to contradict the plaintiff’s allegations. Foti claims part of the evidence that will be presented includes aggressively suggestive communications and graphic photos sent from Eckhart to Henry, rather than the other way around.
Fox News executives have stated that a thorough investigation was conducted after an initial complaint was made on June 25th by a former employee about Henry’s behavior in the past. Fox News President, Jay Wallace, and Fox News Media CEO, Suzanne Scott, said that Henry was suspended the day the complaint was filed, and then ultimately terminated on July 1st, based on the findings of the investigation. Both executives said that complaints of sexual misconduct or harassment are regarded very seriously by the news outlet, and swift action was taken as soon as the problem was brought to their attention.
Fox News no Stranger to Accusations of Harassment in the Workplace
In 2016, the cable news station had to confront a series of embarrassing and frequently sordid lawsuits after firing Roger Ailes, its former CEO who allegedly harassed numerous female staff members and other individuals throughout his television career. Ailes denied every charge made against him, including the high-profile case brought by Fox News anchor Gretchen Carlson. This lawsuit ignited extensive conflict between Fox News and its parent company. Roger Ailes died in 2017.
Plaintiffs Eckhart and Areu are seeking damages in a jury trial, but the trial date has not yet been scheduled. Anyone being victimized by sexual harassment or being unjustly accused of such behavior should seek the advice of an employment attorney in Orange County without delay.
As employers continue to try to adjust to the ever-changing economic realities brought on by COVID-19, some are now in a position to bring employees back who were previously laid off or furloughed. Some of these laid off workers may have recall rights, which will depend on factors such as: where they worked and their industry. Los Angeles City and County and Long Beach have enacted local Ordinances that encompass recall rights for certain laid off workers.
The Ordinances only apply to certain covered employers. Under the Los Angeles City Ordinance, certain airport employers and businesses, commercial property employers, event center employers and hotel employers are required to offer recall rights. The Los Angeles County and Long Beach Ordinances only apply to certain commercial property and hotel employers.
Under all three Ordinances, the laid off worker must also meet certain requirements to qualify for recall rights. The laid off worker must have: (1) worked within the required geographic areas; (2) worked the requisite length of service of six (6) months or more; and (3) been separated from employment due to lack of business, a reduction in force or other economic reasons not related to discipline on or after March 4, 2020.
Assuming the requirements are met to fall under one of the recall Ordinances, laid off workers are entitled to written notification of any position which becomes available for which the employee is qualified under most circumstances. Upon receiving this notice, the laid of worker has five (5) business days to either accept or decline the offer of re-employment. It is also important to note under the Ordinances, laid off workers are considered qualified for the position if they: (1) held the same or similar position prior to being laid off, or (2) is or can be qualified for a position with the same training that would be provided to a new hire into that position. Accordingly, the recall rights outlined in these Ordinances are broader than simply a reinstatement to a laid off worker’s previously held position.
Union employees may not be entitled to these benefits depending on certain terms outlined in their Collective Bargaining Agreement. Also, the Ordinances do not cover managers, supervisors or confidential employees.
Types of Notice
Laid off workers who believe they may fall under one of the Ordinances should pay special attention to their mail, email and text messages as the Ordinances allow covered employers to provide the requisite written notice to the laid off workers’ last known mailing address, email or text number.
The Ordinances also prohibit retaliation against any worker seeking to enforce or otherwise asserting their rights under the Ordinances or for participating in proceedings related to the Ordinances.
Employees who believe their rights as outlined under these Ordinances have been violated should speak with an employment attorney as all of the Ordinances provide laid off workers with the right to file a civil action seeking damages including monetary damages, reinstatement and punitive damages, after meeting certain preliminary notice requirements.
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 should 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.
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.
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 Association’s 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.
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.
Uber Technologies Inc. is indebted to the State of New Jersey for approximately $650 million for disability and unemployment insurance taxes. The New Jersey Department of Labor and Workforce Development said that the money owed is based on Uber’s misclassification of employees as independent contractors.
Uber, along with its subsidiary, Rasier LLC, was given a past-due tax assessment of $523 million, which covers taxes from 2015 to the present. According to additional documents, the rideshare companies may also be obligated to pay up to $119 million in penalties and interest on the four-year-long tax bill.
Uber Challenges State Labor Department
Uber spokesperson Alix Anfang told Bloomberg Law that this determination was incorrect and that the companies are planning to fight it because in New Jersey, and elsewhere, drivers are independent contractors.
At this point, New Jersey’s determination is limited to disability and unemployment insurance; however, it could also mean that eventually rideshare drivers would have to be paid at the state’s minimum wage rate and receive applicable overtime pay. According to Bloomberg Intelligence, if companies such as Lyft and Uber are forced to recategorize their drivers as employees, the cost of rides could increase by over 20 percent.
Lobbying in New York and California
These controversies mark the most recent attacks on the business model for rideshare companies, virtually all of which treat drivers as independent contractors, not employees. When working as self-employed contractors, individuals do not qualify for certain benefits, such as the aforementioned disability and unemployment insurance. Lyft and Uber have now pledged $30 million apiece to challenge new legislation in California that is expected to force such companies to recognize drivers as employees. Additionally, lawmakers in New York are preparing for a similar battle after the New Year.
California has effectively legislated to force Uber and Lyft to classify drivers as employees rather than independent contractors. This will undoubtedly be a hotly contested issue in the California Court system until, more likely than not, the California Supreme Court has the final say.
Audit Launched Among Uber Drivers
The New Jersey Labor Department dispatched surveys to drivers working for Uber and Lyft over the past year, requesting information concerning their tax status and classification. Each year, the Labor Department audits approximately one percent of employers to screen for possible misclassification of workers.
As of Oct. 23, 2019, the State of New Jersey has discovered that 65 drivers who declared Lyft, Uber, or Rasier as their employer on claim forms are actually company employees, and therefore eligible to apply for various unemployment benefits.
No Action Planned at the Federal Level
The National Labor Relations Board and Federal Labor Department recently stated they are unlikely to pursue the rideshare companies for alleged misclassification. The decision was based on their opinion that contractors at an unnamed “virtual marketplace” are not employees because the business simply acts as a referral to link entrepreneurs with various opportunities. The Federal Labor Department said that this means Uber drivers are therefore independent contractors, thus excluding them from unemployment insurance, union benefits, and disability insurance.
However, the State of New Jersey requires a business to demonstrate that it does not control the work completed by the independent contractor and that the services provided are outside the scope of the company’s “usual course” of business. Otherwise, the drivers are considered employees by the state.
According to Bloomberg Law, certain New Jersey drivers said they prefer the flexibility of remaining independent contractors, as this means they can choose where and when to work. Worker advocates, on the other hand, are holding fast to their position that rideshare company owners are skirting their basic responsibilities by classifying such drivers as independent contractors rather than employees.
Uber fell to $25.99 per share, a decline of 2.7 percent, once the news of the disputed tax bill became public. Lyft’s shares fell 3.2 percent around the same time. As of December 2019, it is unclear whether a hearing has been scheduled, and it is also not known if Uber has paid any part of the tax bill that the State of New Jersey is demanding.
If you think you are being misclassified as an employee or independent contractor, call one of our employment attorneys in Orange County at Ares Law Group. Our number is 949-629-2519 and we would be happy to give you a free consultation regarding your situation.
The State of California just enacted a bill confirming that most workers are employees rather than independent contractors and affirming the relevant legal analysis implemented by California Courts. Although the law is applicable to all employers in the State of California, it has a particularly strong effect on Lyft, Uber and numerous “gig” companies that will require them to acknowledge many of their workers as employees, rather than independent contractors. Our employment attorneys in Orange County believe similar laws may pass in other states as well, as California is often the leader with regard to employment regulation.
In California, the law confirms what California Courts have found that, in general, a person would only be considered an independent contractor if the tasks he or she performs fall outside the parameters of the company’s usual course of business. In addition, workers are not regarded as independent contractors if the business exerts meaningful control over how their job duties are performed or if the work they do is part of the company’s regular business.
Lorena Gonzalez, the Democrat Assemblywoman who authored the bill, stated that it was developed as a way to prohibit businesses from miscategorizing workers and ultimately gaming the system. Naturally, it would have been difficult to predict the ways in which the employment landscape would change when these companies were created, but the aim of California lawmakers is to prevent businesses from passing costs onto workers and taxpayers.
Uber Attorney Announces That Drivers are to Maintain Contractor Status
Uber’s top attorney announced on September 11, 2019, that in spite of the new regulations, the company has no plans to treat drivers as employees. Uber’s Chief Legal Officer, Tony West, promised that drivers will maintain independent contractor status.
West stated that Uber’s business does not merely provide rides, but serves as a technology platform for numerous kinds of digital marketplaces, and that they are somewhat used to legal battles.
As our Orange County employment attorneys know from handling these cases, as well as observing the local legal environment, litigation is almost certain to continue if companies continue to attempt to find justifications to classify regular works as independent contractors.
When the costs and complexities of having employees versus hiring independent contractors are considered, it is not difficult to see why some businesses do everything they can to maintain contractors.
One case in point is a long-running dispute that was settled for $228 million in 2015, between FedEx and their Ground California drivers. FedEx Ground robustly defended its purported independent contractor model, but the Ninth Circuit determined that over 2,250 drivers were actually covered by California’s employee protection statutes. Our employment attorneys in Orange County will continue to follow the story and watch for any new developments.
Our 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.
According to a lawsuit filed by Concetta Graziosi in Brooklyn Federal Court, Latin music superstar, Marc Anthony, failed to pay his long-term housekeeper approximately $500,000.00 in unpaid wages. The former housekeeper was responsible for various duties, including cleaning the 10,000 square foot Long Island mansion in which Mr. Anthony resided in with his then-wife, Jennifer Lopez, and their children.
Housekeeper Alleges Thousands in Unpaid Wages
Ms. Graziosi began working for the music star in 2005 and remained employed until 2017, when the Brookville home was sold. Ms. Graziosi alleged that Mr. Anthony forced her to work as many as 80 hours each week, but never paid her the required overtime wages. According to Court papers, Ms. Graziosi stated that at times she was not even paid minimum wage, but rather was given $2,000.00 every other week, regardless of the number of work hours she logged. The lawsuit also alleged that Ms. Graziosi sometimes had to work seven days a week and at times, was not paid at all. In addition, she stated that she never received paid vacation time.
Mr. Anthony also allegedly deducted a processing fee from Ms. Graziosi’s paychecks, which she received via direct deposit. In addition, the lawsuit alleges that Ms. Graziosi sometimes bought groceries for the household on her way to work, but was not given compensation. Jonathan Bell, Ms. Graziosi’s employment law attorney, stated that she was terminated just prior to the Brookville home being sold in 2017 for $4.5 million, and that his client was clearly taken advantage of.
Lawsuit Settled for $500,000
After months of negotiations between the employment attorneys, a deal was finally reached. Mr. Anthony agreed to pay his ex-housekeeper approximately $500,000.00. The lawsuit was settled in private mediation, but the singer has not yet commented about the matter. Mr. Anthony and Ms. Lopez divorced in 2014, and Ms. Lopez was not named in the suit. Representatives for the singer did not immediately return requests for comment.