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.
Female Firefighter Alleges Gender-Based Wrongful Termination
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.