Courtney Abrams interviewed on KFI Radio about Helmer Friedman's lawsuit against Trader Joe's for sexual orientation…
Governor Jerry Brown tapped one of the state’s top young labor lawyers, Kevin Kish, 38, to be director of California’s Department of Fair Employment and Housing (DFEH), the largest civil rights agency in the nation. He replaces Phyllis Cheng, a 2008 Schwarzenegger appointee who resigned in October.
Kish graduated with a Bachelor of Arts degree in sociology/anthropology from Swarthmore College and graduated with a Juris Doctor from Yale Law School in 2004. He was admitted to the State Bar of California later in the year.
After graduating law school, Kish, a Democrat, joined Bet Tzedek Legal Services in Los Angeles, one of the nation’s premier public interest law firms. He left in 2005 to clerk for U.S. District Myron Thompson for the Middle District of Alabama for a year, but returned to the firm in 2006 after receiving a Skadden Fellowship. The Los Angeles Times described the Skadden Foundation as “a legal Peace Corps.”
Two years later, Kish became director of the firm’s Employment Rights Project, leading its employment litigation, policy and outreach initiatives. He focused on illegal retaliation against low-wage workers and cases involving human trafficking. But the firm handles a broad range of cases involving consumer rights, elder law, housing and public benefits.
In 2011, Kish was co-counsel in a class-action lawsuit that won a $1million settlement for Los Angeles carwash workers over wage theft. Four carwash company owners agreed to compensate around 400 workers for routinely working 10-hour days for less than half the minimum wage. Some of the workers toiled for just tips.
Kish and lawyers from two other firms won a $21 million settlement from Walmart contractor Schneider Logistics Transloading and Distribution Inc. in May over the retailer’s alleged abuse of minimum wage and overtime payments to warehouse workers in Eastvale, California. The National Law Review found the settlement amount “staggering” but said its true significance lay in the “courts’ willingness to untangle multi-level business operations and hold all involved entities liable for wage and hour violations.”
Kish has been an adjunct professor of law at Loyola Law School in L.A. since 2012. He developed and teaches a seminar and clinical course for students to “investigate, mediate and recommend outcomes for employment retaliation claims.”
He speaks Spanish, Italian and French.
To Learn More:
Law Professor Chosen to Take over California Department of Fair Employment and Housing (by Jeremy B. White, Sacramento Bee)
|Photo: Illustration by Victor Juhasz|
New York Attorney General Eric Schneiderman (L) speaks while Attorney General Eric Holder listens during a news conference at the Justice Department on January 27th, 2012. (Photo: Mark Wilson/Getty)
“The assumption they make is that I won’t blow up my life to do it. But they’re wrong about that.”
“I thought, ‘I swear, Eric Holder is gas-lighting me,’ ” she says.
Ask her where the crime was, and Fleischmann will point out exactly how her bosses at JPMorgan Chase committed criminal fraud: It’s right there in the documents; just hand her a highlighter and some Post-it notes – “We lawyers love flags” – and you will not find a more enthusiastic tour guide through a gazillion-page prospectus than Alayne Fleischmann.
She believes the proof is easily there for all the elements of the crime as defined by federal law – the bank made material misrepresentations, it made material omissions, and it did so willfully and with specific intent, consciously ignoring warnings from inside the firm and out.
She’d like to see something done about it, emphasizing that there still is time. The statute of limitations for wire fraud, for instance, has not run out, and she strongly believes there’s a case there, against the bank’s executives. She has no financial interest in any of this, no motive other than wanting the truth out. But more than anything, she wants it to be over.
In today’s America, someone like Fleischmann – an honest person caught for a little while in the wrong place at the wrong time – has to be willing to live through an epic ordeal just to get to the point of being able to open her mouth and tell a truth or two. And when she finally gets there, she still has to risk everything to take that last step. “The assumption they make is that I won’t blow up my life to do it,” Fleischmann says. “But they’re wrong about that.”
Good for her, and great for her that it’s finally out. But the big-picture ending still stings. She hopes otherwise, but the likely final verdict is a Pyrrhic victory.
Because after all this activity, all these court actions, all these penalties (both real and abortive), even after a fair amount of noise in the press, the target companies remain more ascendant than ever. The people who stole all those billions are still in place. And the bank is more untouchable than ever – former Debevoise & Plimpton hotshots Mary Jo White and Andrew Ceresny, who represented Chase for some of this case, have since been named to the two top jobs at the SEC. As for the bank itself, its stock price has gone up since the settlement and flirts weekly with five-year highs. They may lose the odd battle, but the markets clearly believe the banks won the war. Truth is one thing, and if the right people fight hard enough, you might get to hear it from time to time. But justice is different, and still far enough away.
Oct. 15, 2014
KANSAS CITY, Kan. – Burlington Northern Santa Fe LLC wrongfully terminated an employee in Kansas City after he reported an injury to his left shoulder, according to the U.S. Department of Labor’s Occupational Safety and Health Administration. The company has been found in violation of the Federal Railroad Safety Act*, and OSHA ordered the company to pay the apprentice electrician $225,385 in back wages and damages, remove disciplinary information from the employee’s personnel record and provide whistleblower rights information to all its employees.
“The resolution of this case will restore the employee’s dignity and ability to support his family,” said Marcia P. Drumm, OSHA’s acting regional administrator in Kansas City, Missouri. “It is illegal to discipline an employee for reporting workplace injuries and illnesses. Whistleblower protections play an important role in keeping workplaces safe because they protect people from choosing between their health and disciplinary action.”
OSHA’s investigation upheld the allegation that the railroad company terminated the employee following an injury that required the employee to be transported to an emergency room and medically restricted from returning to work. The company’s investigation into the injury, reported on Aug. 27, 2013, concluded that the employee had been dishonest on his employment record about former, minor workplace injuries unrelated to the left shoulder. These conclusions led the company to terminate the employee on Nov. 18, 2013.
OSHA found this termination to be retaliation for reporting the injury and in direct violation of the FRSA. BNSF has been ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,305 in back wages and interest and reasonable attorney’s fees.
Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.
OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.
Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
|Robert MacLean, a former air marshal, was fired because of his federal whistleblower actions. (Courtesy of House Committee on Oversight and Government Reform)|
Robert MacLean didn’t realize that by trying to protect America’s flying public, his employer — his government — would treat him almost like a traitor.
Soon, the Supreme Court will have a chance to decide if MacLean, a whistleblower and former air marshal, was treated justly, or at least legally. It is the first case the high court will hear directly concerning a federal whistleblower.
The implications of the case go well beyond MacLean. If he loses, Uncle Sam will have greater power to bully whistleblowers. Fewer federal employees might be willing to disclose waste, fraud, abuse and dumb decisions.
Oral arguments are scheduled for Nov. 4. The Obama administration is appealing a lower court decision that MacLean’s disclosures were covered by the Whistleblower Protection Act. If the justices rule against MacLean, federal agencies could have broad power to weaken that law by using the government’s power to make secret more information than Congress intended.
Here is MacLean’s story:
In July 2003, air marshals, including MacLean, were summoned for mandatory training to prevent suicidal airline hijacking plots by al-Qaeda. Days later, the Transportation Security Administration sent an unsecured, unclassified text message to air marshals informing them that all long-distance assignments requiring an overnight stay would be canceled.
Knowing that could hamper efforts to thwart hijackers, MacLean said he complained about this shortsighted, money-saving plan to an agency supervisor and to the Department of Homeland Security’s inspector general’s office. MacLean also leaked information to MSNBC, which he admitted to during a leak investigation two years later. He was placed on administrative leave in September 2005 and fired in April 2006.
This is the incredible part: It wasn’t until August 2006 that the government retroactively labeled as sensitive the information MacLean was fired for leaking — three years after the text message was sent.
The question before the court: Was MacLean’s disclosure “specifically prohibited by law?”
DHS and the Justice Department say it was
But noteworthy to MacLean’s defense is thata key bipartisan group of members of Congress say his disclosures are, or at least should have been, protected from agency reprisal by the whistleblower law.
They should know
The administration argues that “by law” includes statutes and “substantive regulations that have the force and effect of law.”
The lower court’s decision “is wrong, dangerous, and warrants reversal,” say the government’s lawyers. The earlier ruling “imperils public safety,” they added, “by dramatically reducing the effectiveness of Congress’s scheme for keeping sensitive security information from falling into the wrong hands.”
But members of Congress who were instrumental in passing the legislation say that’s not so. In fact, “Congress deliberately crafted” legislation “to exclude agency rules and regulations,” says a brief filed by Sens. Charles E. Grassley (R-Iowa), Ron Wyden (D-Ore.), Reps. Darrell Issa (R-Calif.), Elijah E. Cummings (D-Md.), Blake Farenthold (R-Tex.) and Stephen F. Lynch (D-Mass).
“If agencies could decide which disclosures receive whistleblower protections, they would inevitably abuse that power,” the members said. “The result would be to deter whistleblowers and restrict the flow of information to Congress.”
Sadly, the message here is that agency officials can’t always be trusted to do the right thing. When employees expose bad policies, too often the reaction of their bosses is to cover managerial behinds. Whistleblowers should be congratulated, praised for serving the public. Instead, many are harassed, punished and pushed from government service.
“After all,” said a brief filed by the U.S. Office of Special Counsel, “whistleblower protection laws exist because government officials do not always act in the nation’s best interests.”
Agencies can be creative in their reprisals, even belatedly declaring information sensitive, as TSA did, in order to better take revenge against whistleblowers.
This wariness of the way agency managers treat whistleblowers is shared by the Republicans and Democrats who filed the congressional brief.
“Time and time again,” they said, “agencies have found ways to suppress inconvenient information.” An administration victory over MacLean, the elected officials warned, “will deter untold numbers of whistleblowers.”
If that happens, it’s not only MacLean who will lose. The American people will, too.
Coaches Sue Chivas USA Professional Soccer Organization, Allege Discrimination Against Non-Latinos
Two former members of the coaching staff of Chivas USA have filed a lawsuit against the Major League Soccer organization, saying they were fired “because they were neither Mexican nor Latino.”
The filing was announced by Gregory D. Helmer, of the Los Angeles law firm of Helmer Friedman, LLP, who represents the two coaches.
Daniel Calichman and Theothoros Chronopoulos, both of whom were former professional soccer players and members of the U.S.National Team before being hired by Chivas USA, are suing in Los Angeles Superior Court. The men, described in the complaint as “Caucasian, non-Latino Americans,” allege discrimination, harassment, retaliation and wrongful termination by Chivas USA based on national origin, ethnicity and race.
Mr. Chronopoulos and Mr. Calichman were employed as coaches in the Chivas USA Academy, which offers soccer programs for youngsters from approximately age seven through age 18.
Mr. Helmer noted that the Chivas USA team was formed in 2004 by a group that included Jorge Vergara Madrigal, a prominent Mexican businessman.
Two years earlier Mr. Vergara had acquired Chivas de Guadalajara. The Mexican team, popularly known as “Chivas,” has since 1908 had a stated policy of hiring only players who are Mexican-born or born of Mexican parents.
In 2012, Mr. Vergara acquired full ownership of Chivas USA and, according to the complaint, began to “implement a discriminatory policy similar to the ethnocentric ‘Mexican-only’ policy that exists at Chivas de Guadalajara.” This included “replacing players and staff who had no Mexican or Latino heritage,” and appointing Mexican nationals to the team’s top executive positions.
“While the hiring practices of Chivas de Guadalajara may be legal in Mexico,” Mr. Helmer said, “Chivas USA must follow California and federal laws prohibiting discrimination, including treatment based on race, national origin or ethnicity.”
On November 13, 2012, the complaint states, Mr. Vergara called all Chivas USA employees to a meeting and announced that non-Spanish speaking employees would be fired. It quotes Mr. Vergara as saying, “If you don’t speak Spanish, you can go work for the Galaxy, unless you speak Chinese, which is not even a language.” (The Los Angeles Galaxy soccer team hires players from diverse backgrounds, notably including David Beckham of England.)
In late November of 2012, the complaint states, Jose David, the team’s newly hired president and chief business officer, asked Mr. Chronopoulos to report which Academy players and coaches were Mexican or Mexican-American and which were not.
In late December Mr. David directed Mr. Chronopoulos to collect ethnic and national origin data on the youngsters enrolled in the Chivas Academy and their parents, according to the complaint, which states that
“When the requests for this information were sent to the parents, many of them were offended and refused to provide it.”
On January 11, 2013, Mr. Calichman and Mr. Chronopoulos submitted written complaints of discrimination and harassment to the team’s Human Resources Manager, Cynthia Craig. At a meeting three days later, according to the court filing, “Ms. Craig assured Mr. Calichman that Chivas USA was going to conduct a ‘full investigation’” into the men’s complaint, but no investigation was made.
At that meeting Mr. David stated that he and Mr. Vergara “were taking the team ‘back to its Mexican roots,’” the complaint states, and indicated that Mr. Calichman and Mr. Chronopoulos would not be “part of the effort to take the team back to its Mexican roots.”
The two men subsequently “were informed that they were not being fired but, at the same time were told not to perform their job duties. They were, in effect, placed on suspension.”
The following day, the complaint states, Ms. Craig contacted both men proposing that they resign from their jobs in exchange for two weeks of severance. On January 18, Mr. Calichman responded by email, rejecting the proposal and asking Ms. Craig to verify that he was still employed.
In February, having received no response to their allegations of harassment and discrimination, the court filing states, the men filed complaints with the California Department of Fair Employment and Housing.
On March 7, 2013, according to the court filing, both men received identical letters from Mr. David, notifying them that their employment was being terminated as of the following day. Their lawsuit notes that “the letter is conspicuously silent” as to whether the company had investigated their complaints of harassment and discrimination. “Moreover, in further retaliation for their complaints, Mr. David falsely and maliciously accused them of ‘demonstrat[ing] unprofessional conduct that created an unsafe work environment,’” without stating how they allegedly did so.
The lawsuit seeks general, special and punitive damages in amounts to be determined at trial, as well as any other relief the Court may deem proper.
Also named as defendants are Insperity, Inc. and Insperity Business Services, L.P. The complaint alleges that Insperity is a joint employer with Chivas USA and, in that capacity, is liable for any unlawful employment practices.
“A major professional soccer team should pick its players and coaches based on their abilities,” Mr. Helmer noted. “The behavior detailed in our complaint against Chivas USA is totally unacceptable for any American employer. It is also a disservice to young people of all ethnicities who might aspire to a career in professional soccer, or who look at these players as role models. It also short-changes fans by fielding a team whose players are selected because of their ethnicity rather than their skills.”
Helmer Friedman LLP provides legal representation and advice in a wide range of areas, including labor and employment, sports, and entertainment. The firm can be reached at 310-396-7714 or www.helmerfriedman.com.
April 18, 2012 : Today, a former employee of Computer Sciences Corporation (“CSC”) filed a gender discrimination and harassment lawsuit against CSC. The Complaint, which was filed in Los Angeles County Superior Court (Case No. BC482993), alleges that CSC, a multi-billion dollar company which provides information technology and business services to companies throughout the world, routinely paid women less than men and denied them higher-paying and more prestigious positions. According to the Complaint, CSC has a practice of retaliating against women who complain by demoting or removing them from their positions, withholding their pay, and/or firing them.
The plaintiff, Anne Roeser, was a high level executive at CSC, who, according to the Complaint, was subjected to pervasive gender discrimination and harassment by some of the Company’s Indian male executives who did not want to work with women and who openly stated that women should stay at home, take care of their husbands and raise their children. These Indian male executives, the Complaint alleges, were openly hostile to women, they made sexist and derogatory remarks about women (calling them “girl,” “blonde,” and “white woman”), they demeaned the jobs held by women (saying, for example, that one high-level female executive’s job was merely to take clients out to lunch and go shopping with them), they refused to communicate with women about substantive work-related issues, and they behaved toward women in an aggressive, condescending and intimidating manner.
According to the Complaint, when Ms. Roeser complained about the gender discrimination and harassment and the illegal conduct in which some of these executives were involved, she was demoted, denied earned wages, otherwise retaliated against, and told to stop complaining. When she continued to complain, she was fired. The Complaint alleges that among other illegal conduct, Ms. Roeser complained that the Company’s off-shore Indian employees engaged in over 6,000 instances of illegally accessing the private health and financial information of the patients of one of the Company’s largest health care clients in violation of HIPAA, the California Confidentiality of Medical Information Act, and the privacy rights of these patients.
Commenting about these allegations, Ms. Roeser’s attorney, Andrew H. Friedman of Helmer * Friedman, LLP, said, “Unfortunately, the glass ceiling really does exist at many companies. Hopefully, lawsuits like this one will shatter that ceiling and enable women to reach the same levels in corporate America occupied by men.”
‘Bachelor’ threatened with racial discrimination lawsuit, experts weigh in
News broke Tuesday that Nathaniel Claybrooks and Christopher Johnson, two African-American football players from Nashville, are holding a press conference Wednesday to discuss their decision to file a class action lawsuit against ABC’s The Bachelor on behalf of “all persons of color who have applied for the role of The Bachelor or Bachelorette but been denied the equal opportunity for selection on the basis of race.” The players say they plan to target ABC, Bachelor executive producer Mike Fleiss, and the show’s production companies (which include Warner Horizon Television, Next Entertainment, and NZK Productions).
The release announcing the conference noted that, “Over a combined total of 23 seasons, neither show has ever had a Bachelor or Bachelorette of color.”
EW reached out to entertainment lawyers who specialize in discrimination cases and are based in California (where The Bachelor is filmed) to provide some insight. The lawyers admitted this was an unprecedented case in many ways. “I’ve watched that [area of law] like a hawk, and I haven’t seen a case like this before,” said Jeffrey S. Kravitz of Fox Rothschild LLP. Though facts on the potential case are still uncertain (Claybrooks and Johnson plan to formally file their suit on Wednesday), this kind of case could be a game-changer.
For starters, neither man ostensibly has been a contestant on the show — a major stumbling block. Even if they had, though, “When you sign up on a reality TV show, you do not sign up as an employee — you sign up as an independent contractor,” said Kravitz. “They’re likely going to sue for civil rights violations or perhaps claim that they’re de facto employees… [but] the case law is all over the board in terms of that across the country.”
Since Claybrooks, Johnson, and their lawyers are based in Tennessee, they have the option to file suit in either California or Tennessee, though Andrew H. Friedman of Helmer & Friedman LLP suggested they’d be better protected in California. That state has a provision called the Unruh Civil Rights Act. “They would definitely have much more legal protection in California than they would in Tennessee,” he said. This could include eligibility for emotional distress damages and “possibly punitive damages if the decision to exclude African-Americans were made at a high enough level of the production company.” That’s in addition to the potential economic damages that could be proved, for example, by looking at other Bachelor/Bachelorette contestants and seeing how they parlayed their fame into endorsements deals and further earnings.
So how might Claybrooks and Johnson prove their case? That’s where things get interesting. According to Friedman, the plaintiffs could depose former producers on The Bachelor and The Bachelorette and requisition everything from contestant applications to internal production memos during the discovery process. “The entertainment industry isn’t known for necessarily being politically correct in terms of their internal e-mails,” he noted, “so I wouldn’t be surprised — if in fact this was going on — for there to be e-mails” proving as much.
In the end, it could also be up to ABC, Next and the other defendants to prove they made a good faith effort to recruit contestants of color. “If the [production company] says, ‘We interviewed x number of minority candidates,’ they’re going to be in better standing than if they only interviewed one,” said Kravitz. “They’re going to be in better standing if they can show a history of enrollment of minority candidates than if they can’t. Beyond that, they don’t control who the Bachelor or Bachelorette picks.” Agreed Jay MacIntosh, “Circumstantial evidence will be important in a case like this. It goes to pattern and practice as to racial profiling.” That said, the proof will be in the papers, which have yet to be filed. Until the specifics of the discrimination allegations come out, Kravitz warned, “These are just allegations at this point.”
• Girls for Gender Equity organizers celebrating the launch of Hey, Shorty: A Guide to Combating Sexual Harassment and Violence in Schools and on the Streets. Photograph courtesy of the author. •
• A Public Service Announcement on Title IX created by Girls for Gender Equity and the Coalition for Gender Equity in Schools. •
Mandy Van Deven is the co-author of Hey, Shorty: A Guide to Combating Sexual Harassment and Violence in Schools and on the Streets, a book about Girls for Gender Equity’s nine years developing an effective organizing strategy to end gender-based violence in New York City’s public schools. Her writing can be found at www.mandyvandeven.com.