Orange County Employment Attorney Blog

Firm Files a Lawsuit against Bingham McCutchen LLP for Failure To Accommodate An Employee's Rare Sleep Disorder

Tue, 22 Nov 2011 14:17:49 -0800

Citing disability discrimination as well as violations of the California Family Rights Act and failure to accommodate a disability, Law Offices of Tamara Freeze filed a lawsuit for wrongful termination in Los Angeles Superior Court on November 21, 2011, against Bingham McCutchen LLP, an international law firm which has 14 offices in the U.S., Europe and Asia.

The plaintiff is Hartwell Harris, 34, who was a Litigation Associate at the firm for four years before being terminated early in 2011 because she was suffering from Delayed Sleep-Phase Syndrome (DSPS), a rare sleep disorder which affects 0.15% of adults (3 of 2,000). Ms. Harris, who was born and raised in a small town (pop. 5000) in Mississippi, received her undergraduate education (aided by grants and loans) at Princeton University before obtaining her law degree from the prestigious University of California at Berkeley School of Law (Boalt Hall) and then joined a large law firm in Southern California. That firm was subsequently acquired by Bingham McCutchen and she worked in its Santa Monica office where she received consistent promotions and bonuses for her work. Her career was progressing rapidly - until she started treatment of SDPS, a disability which she alleges ultimately led to the termination of her employment by the firm. Specifically, Ms. Harris requested the Firm to accommodate her disability by allowing occasional telecommuting and flexible start times. Bingham McCutchen refused to accommodate Ms. Harris and terminated her employment. More information will follow.
Copy of the Complaint can be found here: Harris Complaint (FILED).pdf

Firm Wins Judgment for Unpaid Wages and Waiting Time Penalties

Sun, 23 Oct 2011 21:20:49 -0800

G LC Decision.pdf

The Law Offices of Tamara S. Freeze successfully won a judgment in favor of a client, an IT specialist and web designer, after his former employer withheld his final wages and paid time off (PTO). The firm bought an action to the California Labor Commissioner's Office who conducted a hearing on July 12, 2011.

At that hearing, the employer asserted that the client was not entitled to wages for his final three days because he was not physically present at the worksite. The employer also maintained that the client had used-up his PTO and that the client actually owed them money because he refused to return a company laptop, worth $500.

Through document evidence and oral argument, our firm was able to prove that, not only did the client regularly work from home as part of his IT position, but he did, in fact, work from home at the employer's request during those final three days. Moreover, Ms. Freeze was able to show that the employer still owed the client compensation for his unused Paid Time Off AND that the laptop was actually a bonus given to the client when he was promoted to his full-time position - thus, it was not company property.

Firm Obtains Award Granting Unemployment Benefits to Employee on Appeal

Tue, 11 Oct 2011 19:51:23 -0800

Popova EDD Appeal Decision.pdf

The Law Offices of Tamara Freeze was successful in obtaining a reversal of the Employment Development Department's (EDD) initial determination that our client, the claimant, was disqualified for unemployment benefits under Unemployment Insurance Code section 1256. Our firm represented a former employee who was terminated from her position as a resident manager after she was accused by the employer of committing 12 different incidents of misconduct involving unprofessional conduct toward residents, prospective residents, and staff, improperly entering a resident's apartment without proper notice, and violating company policy by not reporting an incident that occurred on the employer's premises.

Under the Unemployment Insurance Code section 1256, an individual is disqualified from receiving unemployment benefits if she has been discharged for misconduct connected with her most recent work. "Misconduct connected with work" is a substantial breach by the claimant of an important duty or obligation owed to the employer, which is willful or wanton in character, and tends to injure the employer. Maywood Glass Co v. Steward, 170 Cal.App.2d 719 (1959).

The California Unemployment Insurance Appeals Board (CUIAB) reversed the EDD's determination, finding that the evidence of record established that the claimant did not commit any of the acts of misconduct for which the employer discharged her. Accordingly, the claimant was discharged for reasons other than misconduct connected with her most recent work, and thus the claimant was not disqualified for unemployment benefits under Unemployment Insurance Code section 1256.

Law Clerk Profile: Robert Odell

Sat, 10 Sep 2011 15:45:38 -0800

Robert Odell joined our law firm in May 2011. Mr. Odell is currently a third-year student at Chapman University School of Law.

Education
J.D. Chapman University, Anticipated May 2012
B.S. University of Southern California

Membership/Professional Associations
Los Angeles County Bar Association
Orange County Bar Association
California Employment Lawyers' Association

Mr. Odell attended USC for his undergraduate degree in Biological Science where he graduated in 2008 with honors and with an additional emphasis in environmental microbiology. As a talented student, Mr. Odell was selected by USC faculty and administration in 2007 to complete a semester of graduate-level coursework and research at USC's Wrigley Institute for Environmental Studies, located near Two Harbors on Catalina Island. Mr. Odell's semester at Wrigley culminated in his independent and published research involving Dimethylsulfoniopropionate (DMSP) metabolism in local marine phytoplankton and its future impacts on climate as a result of our ocean's gradual acidification - an important yet relatively uninvestigated area of concern among today's climatologists.

After graduation, Mr. Odell made an interesting transition into law school with the hope of applying his detail-oriented scientific background into the study of law and his desire for obtaining legal justice on behalf of those who have been unlawfully harmed.

In the summer of 2010, Mr. Odell was honored to serve as a law clerk for the Homicide Unit of the Orange County District Attorney's Office. At the OCDA, Mr. Odell was able to assist some of our nation's top criminal prosecutors with detailed discovery, complex legal research, and with every stage of criminal trial.

Law Clerk Profile: Allison Lin

Sat, 10 Sep 2011 15:30:34 -0800

Our law firm is pleased to have another talented law clerk on our staff, Allison Lin, who is currently a third-year student at Chapman University School of Law. Ms. Lin has been with our firm since May 2011. Ms. Lin is currently in the top 8% of her class and serves as Symposium Editor for Chapman Law Review.

Education
J.D. Candidate, Chapman University School of Law
B.A. in Criminology, Law and Society, University of California, Irvine

Membership/Professional Associations
American Bar Association
State Bar of California
California Employment Lawyers' Association

Ms. Lin's law review comment entitled "WARNING: Enlisting in the Military May be Hazardous to Your Health: An Examination of Appropriate Solutions for Veterans Poisoned by Contaminated Water at Marine Corps Base Camp Lejeune" is anticipated to be published in the fourth volume of Veterans Law Review (January 2012). In law school, Ms. Lin was involved in the family violence clinic, where she took full responsibility for clients' cases and submitted applications for immigration relief on behalf of clients who were victims of violent crimes. She also served as a judicial extern for the Honorable Robert N. Kwan in the United States Bankruptcy Court where she conducted legal research and drafted bench memoranda.

Also, Ms. Lin earned the CALI Excellence for the Future Award for the highest grade in Torts and Civil Procedure. She also served as the Academic Chair for the Asian Pacific American Law Students' Association, and is currently a member of the Employment Law Society.

Before entering law school, Ms. Lin worked as a legal assistant at the Law Offices of Lawrence R. Whiting, where she conducted all office intakes, managed her own caseload, and supervised the work of part-time legal assistants and clerks. While pursuing her undergraduate degree, she interned for California State Assembly member Audra Strickland where she submitted her own bill proposal to legislative counsel and prepared issue briefs on various topics for the Member.

Ms. Lin currently assists the firm with drafting demand letters, pleadings, motions, and discovery, as well as interviewing clients.

Tamara Freeze's Legal Journey Is Reflected in the New ABA Book

Sun, 24 Jul 2011 17:52:50 -0800

Law Firm's principal, Tamara Freeze, shared her experience of starting her new law firm in the new book "The Road to Independence," published by the American Bar Association, Commission on Women in the Profession. The book includes 101 women's journeys to starting their own law firms and Ms. Freeze's story was chosen for publication through a competitive selection process.

Ms. Lockwood, the book's editor, talks about the book in her article: "Finding independence: Advice for women going solo."
The book is offered at the ABA online store here.

Lawmakers Consider Legislation to Ban Hiring Discrimination Against Unemployed

Sun, 24 Jul 2011 17:41:14 -0800

A new bill is introduced in the House to bar employers from discriminating against the jobless in hiring. "Unemployed" will be the new "protected" category, together with age, sex, religion, disability, veteran status and others.

According to OC Register: "One new trend during this recession has been help wanted ads and employers that state people who are unemployed need not apply. There is now a House bill that would ban overt hiring discrimination against people who are out of work.

Democratic Reps. Rosa DeLauro of Connecticut and Henry Johnson of Georgia introduced the bill, H.R.2501, dubbed the Fair Employment Opportunity Act of 2011. There are now 30 co-sponsors, all Democrats in the Republican-controlled House.

The bill would bar employers with 15 or more workers and employment agencies from advertising a job or refusing to offer a position to someone who is out of work. Companies that have a legitimate reason for requiring someone with skills that require an applicant be employed in the field will be exempt.

It doesn't address employers who quietly discriminate against the unemployed without being explicit about it.

"In a tough job market, where workers are competing against tens and sometimes hundreds of others for every available job opening, it is unjust for employers to discriminate against those who are unemployed," said DeLauro in a statement. "The Fair Employment Opportunity Act of 2011 would prohibit employers and employment agencies from discriminating against unemployed job-seekers and ensure that all Americans have the same opportunities for employment."

Employers who have excluded the unemployed often argue that people who have been out of work awhile don't have the up-to-date skills they need. Another school of thought is that if someone is laid off, their previous employer apparently thought they were expendable or their skills weren't critical enough to retain.

It's not clear what they think about someone whose company closed or lost their job due to bankruptcy.

The new bill was referred to the House Education and the Workforce Committee." See the full article here.

Firm Defeats Employer's Summary Judgment in a Defamation Case

Sun, 03 Jul 2011 19:49:37 -0800

Law Offices of Tamara Freeze successfully defeated an employer's motion in court last week to dismiss a defamation case at the summary judgment stage. Our law firm represents a former employee who was terminated from a highly paid position after he was accused by management and other employees of stealing, embezzlement, destroying company property and (a classic default excuse by employers) "poor performance."

Normally, communications between management about employees are privileged and are not subject to defamation. However, the judge denied employer's motion for summary judgment, finding that there was an issue of fact as to malice (evil intent) by some employees who brought these false accusations against our client. Our firm's summer associates, Allison Lin and Robert Odell assisted with the opposition to employer's motion.

OC Layoff Crisis Leads to Worker Suicide

Sun, 03 Jul 2011 19:36:09 -0800

The City Council of Costa Mesa, faced with a challenge of providing for retirees with meager pensions and the $1.4 million budget deficit, voted to outsource 18 city services. This resulted in a mass layoff of 213 out of 472 City Hall employees across departments including but not limited to firefighters, maintenance workers, and jail staff. Six-month termination notices were distributed to these workers on March 17. Angry and despair swept the city hall and one of the employees regrettably committed suicide on the scene just thirty minutes after he received his layoff notice. Upon receiving the grim news, Huy Pham, a city maintenance worker jumped off the roof of the five-story civic center building (he was only 29 years old).

The government of Costa Mesa is attempting an unprecedented method - a huge transition - in hopes of quelling the ballooning of pension fund costs. Pension issues have plagued other cities just as Los Angeles in California and are complicating budget talks in Sacramento. While OC media reports that unemployment data for Orange County is not that bad, the trend is expected to worsen in the next few months.

Layoffs are common nowadays in Orange County. Usually, mass layoffs are difficult to legally challenge because they are usually motivated by economic reasons, rather than discriminatory animus. Nonetheless, Law Offices of Tamara Freeze successfully challenged several mass layoff decisions in the past. Some layoff decisions are suspect because they target older workers, women, persons of a particular race/national origin or persons with disability. And, of course, questions arise if a laid off worker is immediately replaced by another person (indicating that the "economic" reason was most likely pretext). Make sure you get adequate notice of the layoff, ask questions about selection criteria, demand severance and consult with an attorney.

Firm Opens New Employment Benefits Practice

Sat, 26 Feb 2011 18:50:01 -0800

Our law firm is pleased to announce opnening of a new practice group: Employment Benefits. This includes counseling and litigation, including health and retirement plans, compliance with Federal and State laws, employee communications, plan audits, leaves of absence and COBRA issues. Last year we helped numerous employees to reinstate their benefits, and succeeded in recovering attorney's fees and penalties in COBRA actions. In 2009-2010, we handled numerous subsidy reinstatement cases and brought great results to our clients.

If you suspect that your employer is violating your rights under your benefit plan, please contact us.

Game Over for 99-ers (Unemployment Benefits Twilight)

Sat, 26 Feb 2011 18:45:14 -0800

Those who have exhausted their 99 weeks of unemployment insurance benefits, also known as "99ers" have been let down once again by the Congress on the 17th of this February. The 99ers are long-term unemployed workers who have exhausted their benefits and need assistance from the bill to make ends meet. The "Emergency unemployment compensation expansion act, had it been passed, would have added 14 more weeks of unemployment benefits to the 99 weeks.

The efforts of Representative Barbara Lee of California to extend the term of the American Recovery and Reinvestment Act for long-term unemployed workers failed when the bill was disallowed. Representative Denny Rehberg opposed this bill on parliamentary grounds, claiming that the bill would change existing law which is not allowed under House rules.

Although Representative Lee's amendment did not make its way onto the calendar, her bill to extend unemployment benefits, H.R. 589, is yet to be decided upon. According to the media, however, "chances of passage are slim" because the Bill will need Republican supporters to get it passed. Thursday's "failed effort" did little to ease the situation for H.R. 589.

Michelle Juen contributed to this post

Hispanic Unemployment in Orange County

Mon, 14 Feb 2011 22:44:19 -0800

Despite the seemingly gloomy weather for those who have been hit hard from the economic recession in 2008 that has continued ever since, there seems to be a silver lining for Alba Ramiro. A resident of Orange County since 1976, Alba Ramiro had worked as a real estate agent until 2008 when the economy caved in along with the mortgage meltdown. Ramiro had been unemployed for two years - and may have not been looking for a job "because, according to me, I didn't have a degree and there was really nothing out there for me. I had no skills." For those two dark years, Ramiro got by with a small stipend from working at her local church and even borrowing from her own children. Ramiro finally stepped out when a friend told her about Experience Unlimited, a free service program created by the Employment Development Department to help educate those looking for professional, technical, or managerial work. From this program, Ramiro discovered that she had skills that need not come from a particular degree. She wrote on her online resume that she was a "volunteer coordinator" and soon started her job as an administrative assistant at Catholic Charities on September 1, 2010.

This success story, however, may not resonate with many who are part of the Hispanic population in the OC and even in the nation. According to the report made by the Joint Economic Committee titled "Understanding the Economy: Unemployment in the Hispanic Community" published in May of 2010, there is a rising unemployment level in the Latino community due to the housing bubble burst. In fact, the unemployment rate for Hispanics edged up to 13.2% in November of 2010 (Bureau of Labor Statistics November News Release) in comparison to the national unemployment rate of 9.8% and California unemployment rate of 12.4%. The unemployment rate for the Hispanic ethnicity was 12.7% exactly one year prior - in November 2009. County-wise, Orange County experienced the largest decline in employment among the 10 largest counties in the U.S. with a 4.2 decrease.

Tamara Freeze Will Speak at OCBA Labor & Employment Lunch Meeting on March 14, 2011

Mon, 14 Feb 2011 22:29:03 -0800

Tamara Freeze will be presenting on employment discovery law updates, together with Hon. Franz Miller and Douglas Wade at Orange County Bar Association Labor & Employment lunch meeting on March 14, 2011.

The presentation is titled "Employment Law Discovery Tricks and Treats in 2011" and will focus on MSJ strategies, recent discovery decisions, and obtaining witness statements taken by counsel after the Coito decision.

Car Dealerships Pays $279,400 For Pregnancy Discrimination

Mon, 14 Feb 2011 22:24:50 -0800

Under the Fair Employment Housing Act (FEHA), you may be eligible to receive reasonable accommodations from your employer (such as being transferred to a less strenuous position or job-protected leave of absence) if you are pregnant. California law considers pregnancy as a protected status under the law and you cannot be discriminated against on that basis.

The owners of the car dealership Victory Toyota and Lexus Monterey Peninsula in Seaside, California faced a law suit against a formal employee, Stephanie Faiello-Olson, on the pregnancy disability leave (PDL) issue. According to Faiello-Olson, she was demoted then subsequently fired due to her pregnancy. She had requested a reduced work schedule in March 2008 but was instead transferred to a lower-volume dealership and reduced commission-based income. When Ms. Faiello-Olson went on her pregnancy leave in July 2008, she was let go from her position as Finance Manager several weeks later.

The Department of Fair Employment Housing announced a $279,400 settlement, and, as part of the settlement, respondents also agreed to a training in discrimination prevention, modify the anti-discrimination policies, and display the DEFH's discrimination and harassment poster at their workplace.

Arbitration Denied:Trivedi v. Curexo

Sun, 14 Nov 2010 18:59:56 -0800

In a recent appellate court case Trivedi v. Curexo Technology Corporations, the enforceability of the arbitration clause by an employer was brought into question. In many cases, employer's attorneys would rather opt for arbitration when there is a dispute with an employee or and ex-employee. Proponents of arbitration consider this alternate form of dispute more efficient, less expensive, and more private than dealing with inconsistent trial schedules and serving in front of the judges and jury. This particular case involves Ramesh C. Trivedi, former President and CEO of Curexo Technology Corporations, who filed several different discrimination claims against the company in June 25, 2009. The defending party filed a motion to compel arbitration and to dismiss or stay the action, to which Trivedi opposed. According to the company, the employment agreement contract states that an employee must resolve his dispute with a sole arbitrator selected from the American Arbitration Association. Trivedi claimed that the arbitration obligation was unconscionable and thus requested that the courts allow him to proceed to jury trial. The court concluded that the arbitration agreement was both procedurally unconscionable and substantively unconscionable.

The court denied enforcement of the arbitration agreements by the employer. The court found that the agreement was primarily procedurally unconscionable for three reasons: (1) that the agreement was prepared by Curexo, (2) that it was a mandatory part of the agreement, and (3) that Trivedi was not given a copy of the AAA rules to which he could be fully aware of his obligations as the employee. Two further findings led the court to also conclude that the arbitration agreement was substantively unconscionable. First, the arbitration clause included a mandatory attorney fee and the cost provision in favor of the prevailing party. This would place Trivedi at a greater risk, discouraging him to file a complaint against the company in civil court. Secondly, the injunction relief provision (seeking remedy from the courts) seems to favor Curexo over Trivedi seeing that the provision allows broader relief than does the statues and that Curexo is more likely to invoke the remedy of injunctive relief.

Michelle Juen contributed to this post.