SB 1044: Preventing Retaliation During Emergency Condition

Workers injured during natural disasters because employers refused to allow them to seek safety.

As climate-related disasters increase in intensity and frequency, employees are regularly expected (and sometimes required) to place their lives in danger by continuing to work through these calamities. For example, during recent tornadoes in Illinois, Amazon not only refused to let workers leave a warehouse in the expected route of a tornado but also refused to allow its workers to access communications devices to track the dangerous conditions. The warehouse was destroyed, and several workers were killed. Similarly, during the Getty Fire, domestic workers and gardeners were required to continue working in Los Angeles evacuation zones. Agricultural workers in Sonoma County were required to continue picking produce during the Atlas/Tubbs fires. There were landscapers and housekeepers, along with children, among the 23 lost and 167 injured in the 2018 Montecito debris flow.

SB 1044 was designed to enhance workers’ protections during natural disasters by requiring employers to allow workers to have access to their cell phones or other communications devices during these emergencies to seek emergency assistance, assess the safety of the situation, or communicate with a person to confirm their safety and by permitting workers to leave a workplace or worksite within an area affected by an “emergency condition” if they feel that they must do so for their safety.

“Emergency condition” is defined to mean the existence of either of the following: (i) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (ii) an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. SB 1044 specifically excludes a health pandemic from the definition of “emergency condition.”

Sadly, the California Chamber of Commerce designated this common-sense prophylactic as a “job killer,” as it routinely does with laws designed to protect employees and consumers, and many Republicans voted against it.

SB 523: The Contraceptive Equity Act of 2022

Helping Employees Recover and Enforcing Employment Laws Helmer Friedman LLP.

On June 24, 2022, the radical, activist, and far-right-wing conservatives on the U.S. Supreme Court did something that even the über conservative Lochner-era Supreme Court didn’t do. The (Trump) Court, in a 5-4 decision authored by Justice Samuel Alito Jr. in Dobbs v. Jackson Women’s Health Organization, 142 S.Ct. 2228 (2022), reversed a pair of cases that Justice Antonin Scalia’s acolyte, Judge Michael Luttig, had called “super stare decisis” – Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood of Southeastern Pennsylvania. v. Casey, 505 U.S. 833 (1992). In doing so, the five radical right-wing Justices took away a fundamental constitutional right (the right to choose) for the first time in U.S. history. Perhaps most surprising about the Dobbs decision is that the right to choose was cavalierly stolen from the Country even though it was repeatedly affirmed and re-affirmed year after year for nearly 50 years in opinions written by and/or concurred in by 16 Justices – 10 different Republican Justices nominated by 5 different Republican Presidents and six Democratic Justices.

Justice Clarence Thomas, in his concurring opinion, advocated for the Supreme Court to go even further toward a dystopian world straight out of The Handmaid’s Tale and reverse all of the Court’s prior substantive due process decisions, including Griswold v. Connecticut, 381 U.S. 479 (1965), which held that the right to privacy protected against state restrictions on contraception.

Governor Gavin Newsom signs SB 523 Contraceptive Equity Act.

In response to both the horrific Dobbs decision and threats by Republicans to take away other reproductive rights Americans have taken for granted for decades, Governor Newsom signed SB 523, the Contraceptive Equity Act of 2022, into law on September 27, 2022. This law amends California’s Fair Employment and Housing Act (“FEHA”) to add “reproductive health decision-making” as a legally protected category. “Reproductive health decision-making” is defined to include, but not be limited to, “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Presidential Memorandum on Supporting Access to Leave for Federal Employees

Your workplace should be free of discrimination and harassment. Contact the attorneys of Helmer Friedman LLP for information.

On February 2, 2023, the Biden-Harris Administration, to mark the then-upcoming 30th anniversary of the Family and Medical Leave Act (“FMLA”), announced a series of new actions to support and advance America’s federal public employees. In this regard, President Biden issued a Memorandum For The Heads Of Executive Departments And Agencies, strongly encouraging those heads to provide access to leave for Federal employees when they need it, including during their first year of service, to ensure employees are able to bond with a new child, care for a family member with a serious health condition, address their own serious health condition, help manage family affairs when a family member is called to active duty, or grieve after the death of a family member. President Biden further directed the Office of Personnel Management is further directed to provide recommendations regarding “safe leave” to support Federal employees’ access to paid leave and leave without pay for purposes related to seeking safety and recovering from domestic violence, dating violence, sexual assault, or stalking. Those may include obtaining medical treatment, seeking assistance from organizations that provide services to survivors, seeking relocation, and taking related legal action.

FTC Proposes Rule to Ban Non-compete Clauses

For decades, employers have used non-competition agreements to not only artificially lower the salaries of their employees but also to render those employees into something akin to indentured servitude.

Captured ideas On January 5, 2023, the Federal Trade Commission proposed a new rule – accessible at https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking — that would ban employers from imposing non-competes on their workers, a widespread and often exploitative practice that suppresses wages, hampers innovation, and blocks entrepreneurs from starting new businesses. The proposed rule provides that: “It is an unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with a worker; maintain with a worker a non-compete clause; or represent to a worker that the worker is subject to a non-compete clause where the employer has no good faith basis to believe that the worker is subject to an enforceable non-compete clause.” The proposed rule would also require the rescission of all non-competition agreements entered into before the date the new rule takes effect.

By stopping these unfair non-competition agreements, the FTC estimates not only that wages might be increased by nearly $300 billion per year but also that expanded career opportunities would abound for about 30 million Americans.

President Biden Signed Into Law the “Speak Out Act,” Curbing Use Of Non-Disclosure Agreements In Harassment Cases

Helping Employees Recover and Enforcing Employment Laws Helmer Friedman LLP.

President Biden signing the Speak Out Act.

On December 7, 2022, President Joe Biden signed the Speak Out Act, which bans the use of pre-dispute non-disclosure and non-disparagement contract clauses involving sexual assault and sexual harassment. The new law renders unenforceable non-disclosure and non-disparagement clauses related to allegations of sexual assault and/or sexual harassment that are entered into “before the dispute arises.” The new law does not prohibit the use of these agreements completely. The Speak Out Act exclusively prohibits and nullifies pre-dispute non-disclosure and non-disparagement agreements and does not apply to post-dispute agreements. Accordingly, the act only applies to instances before a sexual harassment, or sexual assault dispute arises. The act also does not apply to trade secrets, proprietary information, or other types of employee complaints such as wage theft, age discrimination, or race discrimination.

US $399K Recovered in Overtime Back Pay for Workers at Aurora’s Supermercado Carrera Specialty Grocery Store

Helping Employees Recover and Enforcing Employment Laws Helmer Friedman LLP.

AURORA, IL – While workers at a local supermarket stocked shelves, operated cash registers, and served customers Mexican hot foods and baked goods, their Aurora employer was denying them their hard-earned overtime pay for two years, the U.S. Department of Labor recently found.

After its investigation, the department’s Wage and Hour Division has recovered a total of $399,851 in back wages and liquidated damages for 49 workers at Supermercado Carrera, a family-owned supermarket.

Division investigators determined the supermarket’s operator paid several employees straight-time wages for overtime and shortchanged them of the legally required time and one-half premium for hours over 40 in a workweek. The employer also incorrectly classified some employees as exempt from overtime. These actions violated the Fair Labor Standards Act.

In addition to $199,925 in back wages and an equal amount in liquidated damages, Supermercado Carrera also paid $734 in civil money penalties the division assessed after investigators found that a minor-aged employee worked beyond permitted hours. ​

The nearly $400,000 in back wages and damages our investigation recovered will make a significant difference in the lives of 49 workers and their families,” said Wage and Hour Division District Director Tom Gauza in Chicago. “Typically, small grocers employ low-wage and vulnerable workers likely unaware of their basic rights to the federal minimum wage and overtime pay. Workers in the U.S. have the right to be paid their full earned wages.

In the fiscal year 2022, the Wage and Hour Division’s office in Chicago recovered $6.4 million in back wages and $647,000 in liquidated damages for more than 6,400 workers. Most commonly, the division found violations of overtime and minimum wage. In the first four months of the fiscal year 2023, the office has recovered $1.6 million in back wages and $814,000 in liquidated damages for 1,182 workers.

“We continue to work with local worker’s advocacy groups, consulates, and other community resources to educate workers about their rights. Failing to pay accurate wages is an issue across a myriad of industries,” Gauza added. “Employers or workers with questions should reach out to Wage and Hour for information.”

Learn about FLSA rules for the retail Industry.

For more information about the FLSA and other laws enforced by the division, contact the division’s toll-free helpline at 866-4US-WAGE (487-9243). Learn more about the Wage and Hour Division, including a search tool to use if you think you may be owed back wages collected by the division. Download the agency’s new Timesheet App for android devices to ensure hours and pay is accurate.

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$26K to Settle Allegations of Retaliation, Interference with Federal Investigation of Pay Practices

Federal laws protect employees from discrimination, employer retaliation.

New Hampshire chimney services contractor pays $26K to settle allegations of retaliation and interference with a federal investigation of pay practices.

Federal law prohibits employers from punishing workers who exercise their legal rights.

MANCHESTER, NH – A Manchester chimney services contractor has paid a total of $26,163 to three workers to resolve allegations that the employer violated the Fair Labor Standards Act’s anti-retaliation provisions enforced by the U.S. Department of Labor’s Wage and Hour Division.

The U.S. Department of Labor takes allegations of employee retaliation very seriously. Federal law protects workers’ ability to exercise their rights freely without fear of reprisals,” explained Wage and Hour Division District Director Steven McKinney in Manchester, New Hampshire. “These rights include the ability to contact the department and other agencies about the employer’s pay practices and to speak openly with investigators and other department officials during an investigation.

Division investigators found Ceaser Chimney Service Inc. fired an employee in June 2021 after they contacted the New Hampshire Department of Labor to inquire about their rights under the labor laws. During its investigation, the employer also unlawfully questioned two other employees regarding their communications with the Wage and Hour Division. Anti-retaliation provisions in the Fair Labor Standards Act prohibit employers from discharging an employee or discriminating against an employee who engages in protected activity, including filing a complaint, participating in an investigation, or even simply asking questions about their wages.

Per the settlement agreement, Ceaser Chimney Inc. has done the following:

  • Paid the terminated employee a total of $21,163, which includes $2,463 in back pay for the time they were unemployed after the termination, $8,700 in front pay, and $10,000 in punitive damages.
  • Paid the other employees punitive damages totaling $5,000, or $2,500 each.
  • Agreed not to discharge or in any other manner discriminate against any employee because they filed a complaint, testified, or participated in any Fair Labor Standards Act investigation or proceeding or has asserted any right guaranteed by the Fair Labor Standards Act.
  • Agreed to provide all current and future employees with a written statement of their Fair Labor Standards Act rights for a five-year period.

The division will continue to enforce these protections vigorously and make it clear – as Ceaser Chimney Inc. has learned – that retaliation against workers has costly consequences. The Wage and Hour Division encourages workers and employers in northern New England to contact the Manchester District Office to learn more about their respective rights and responsibilities under federal law,” added McKinney.

Learn more about how the Wage and Hour Division protects workers against retaliation.

The FLSA requires that most employees in the U.S. be paid at least the federal minimum wage for all hours worked and overtime pay at not less than time and one-half the regular rate of pay for all hours worked over 40 in a workweek.

Learn more about the Wage and Hour Division, including a search tool if you think you may be owed back wages collected by the division. Employers and workers can call the division confidentially with questions regardless of their immigration status. The department can speak with callers confidentially in more than 200 languages through the agency’s toll-free helpline at 866-4US-WAGE (487-9243).

Sexual Harassment and Retaliation Suit Settles for $60,000

Burger King

Burger King Franchise to Pay $60,000 to Settle EEOC Sexual Harassment and Retaliation Suit

Employer Allowed Abuse of Pregnant Employee and Fired Her After She Complained, Federal Agency Charged

ASHEVILLE, N.C. – North Georgia Foods, Inc., a Georgia-based company operating several Burger King restaurants, including one in Murphy, North Carolina, has agreed to pay $60,000 and provide other relief to settle a sex harassment, retaliation, and pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s complaint, from at least August 2018 through approximately July 2019, a team member at North Georgia Foods’ Murphy, North Carolina location was sexually harassed by a male assistant manager. The harassment included vulgar sexual comments, threatening behavior, and unwelcome sexual touching. The team member complained multiple times and asked not to work alone with the male assistant manager. North Georgia Foods did not take action to stop the harassment but instead removed the team member from the schedule completely in June 2019. The company refused to communicate with the team member and later refused to reinstate her employment. The EEOC also alleged the team member was discriminated against because of her pregnancy.

This alleged conduct violates Title VII of the Civil Rights Act of 1964 (Title VII), which protects employees from sex-based harassment in the workplace. The EEOC filed suit (EEOC v. North Georgia Foods, Inc, d/b/a Burger King, Case No. 1:22-cv-00049) in the United States District Court for the Western District of North Carolina after first attempting to reach a pre-litigation settlement via its voluntary conciliation process.

The outcome of this case demonstrates that employers who ignore complaints of sex-based harassment in the workplace or retaliate against employees for asserting their rights under Title VII will be held accountable.

The suit was resolved by a two-year consent decree that prohibits North Georgia Foods from discriminating and retaliating against employees in violation of Title VII.  North Georgia Foods must also prominently post a telephone number for an off-site reporting official, revise its written anti-discrimination policies, and train employees on the process for reporting complaints of discrimination and the requirements of Title VII, including its anti-retaliation provisions.

“The outcome of this case demonstrates that employers who ignore complaints of sex-based harassment in the workplace or retaliate against employees for asserting their rights under Title VII will be held accountable,” said EEOC Regional Attorney Melinda C. Dugas.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. The EEOC’s Charlotte District is charged with enforcing federal employment discrimination laws in North Carolina, Virginia, and South Carolina.

More information is available about sexual harassment is available at https://www.eeoc.gov/sexual-harassment .

23 Years a Slave: Restaurant Owner Gets Sentence for Enslaving Intellectually Disabled Black Man

A South Carolina restauranteur was sentenced to prison after admitting he used violence, threats, and intimidation to force a black man to work more than 100 hours a week with no pay in a stunning case of throwback slavery.

On Monday, U.S. District Court Judge R. Bryan Harwell sentenced 54-year-old Bobby Paul Edwards to 10 years in federal prison after he pleaded guilty to one count of forced labor, according to a press release from the Department of Justice. Prosecutors say that Edwards, who managed his family’s restaurant, forced Chris Smith, an intellectually disabled black man, to work for free and live in a small room behind the restaurant. Court documents show that Edwards physically abused Smith for at least 17 years, including whipping Smith with a belt, beating him with pots and pans, and even burning him with hot grease.

23 Years a Slave In 1996, when Smith was only 12 years old, he accepted a job at J&J Cafeteria in Conway, S.C., WPDE reports. Six years later, Edwards took over as manager and stopped paying Smith. Over the next 17 years, Edwards would torture, imprison and withhold pay from Smith, claiming that his pay was kept in an “account” that was inaccessible to Smith.

A federal lawsuit filed on Smith’s behalf claims that Smith worked 18 hours a day, six days a week. On Sundays, he only had to work 11 hours. During his entire 23 years of enslavement at J&J, Smith claims he never had a work break or a day off. Forced to live in a “cockroach-infested” apartment behind the business, Smith alleges that Edwards’ family never tried to intervene.

“They knew,” said Smith. “All of ‘em knew. They knew what he was doing.”

For stealing his victim’s freedom and wages, Mr. Edwards has earned every day of his sentence.

When Smith’s family would try to check on him, Edwards would lock Smith in the kitchen or even in the freezer. On the rare occasion that Smith indicated displeasure or tried to escape, he was hit in the head with a frying pan, burned with hot tongs, beaten with belt buckles, and called the n-word repeatedly. Customers reported that they sometimes heard Smith being beaten and screaming for his life.

“I wanted to get out of there a long time ago. But I didn’t have nobody I could go to,” Smith explained. “I couldn’t go anywhere. I couldn’t see none of my family so that was that…That’s the main basic thing I wanted to see was my mom [to] come see me.”

Geneane Caines, who was friends with the Edwards family, was a frequent customer at J&J, and her daughter, who worked at the eatery, told her how Edwards abused Smith. Once, while eating at the restaurant, she noticed signs of abuse.

He leaned one way over and when he did, I could see [a scar] on his neck.

“Chris came out of the kitchen and put some food down on the bar,” Caines told . “He leaned one way over and when he did, I could see [a scar] on his neck.”

After looking into the situation, Caines reported Edwards to the Department of Social Services, who rescued Smith. Caines also alerted Abdullah Mustafa, President of the Conway chapter of the NAACP. They helped Smith get on his feet and Caines allowed Smith to stay in her home for two months.

Edwards was sentenced to 10 years after pleading guilty to one count of forced labor. He was also ordered to pay $272,952.96 in restitution. (Or as Merriam-Webster correctly defines it: “Reparations.”)

“For stealing his victim’s freedom and wages, Mr. Edwards has earned every day of his sentence,” said U.S. Attorney Sherri A. Lydon for the District of South Carolina. “The U.S. Attorney’s Office will not tolerate forced or exploitative labor in South Carolina, and we are grateful to the watchful citizen and our partners in law enforcement who put a stop to this particularly cruel violence.”

The next day, Lydon, an ever-vigilant protector of the people, prosecuted 28-year-old Erron Jordan. Jordan was stopped by a Conway police officer because his window tint was too dark. After cops noticed the “odor of marijuana,” police found a small amount of illegal drugs, prescription pills, and a firearm in the car.

Jordan was sentenced to 12 years in prison and three years of supervised probation.

Jordan has never been convicted of a violent offense.

Oh, “Justice” Department, you almost had me.

If you or your loved ones would like to dine at J&J Cafeteria, it is open 14 hours a day, seven days a week.

It is still owned by the Edwards family.

Read more by Michael Harriot at The Root

Civil Rights Queen: Constance Baker Motley and the Struggle for Equality

February 28, 2022 – As the Senate prepares to hold hearings on the historic nomination of Ketanji Brown Jackson, the first Black woman nominated to sit on the Supreme Court, it’s the perfect time to highlight a new biography about another Black woman who accomplished a series of firsts and who, in another, more modern, era, would almost certainly have been nominated to serve on the Supreme Court – Constance Baker Motley.  

Constance Baker Motley first Black woman to argue before SCOTUS. Constance Baker Motley was not only the first Black woman to argue before the Supreme Court (winning an astonishing nine of 10 cases), but she was also the first black woman to be appointed to the federal judiciary – President Lyndon B. Johnson appointed her to the Southern District of New York.

Motley began college at Fisk University, a historically black college in Nashville, Tennessee, but subsequently transferred to New York University, where she graduated with a Bachelor of Arts degree. She received her Bachelor of Laws from Columbia Law School. Motley then went to work for the NAACP Legal Defense and Educational Fund, Inc. as a civil rights lawyer, where she wrote the original complaint in the case of Brown v. Board of Education. Her first argument before the Supreme Court was in Meredith v. Fair; she won James Meredith’s effort to be the first black student to attend the University of Mississippi.

Civil Rights Queen Constance Baker MotleyIn her terrific new book on Motley’s life and legacy – called Civil Rights Queen: Constance Baker Motley and the Struggle for Equality“- Harvard law professor Tomiko Brown-Nagin Poignantly describes Motley’s life from the time that she was born to a working-class family during the Great Depression, to her role as one of the principal strategists of the Civil Rights Movement and for her legal defense of Martin Luther King Jr., the Freedom Riders, and the Birmingham Children Marchers when she was a civil rights lawyer for the NAACP, to her service in the New York State Senate and as Manhattan Borough President, to her becoming the first Black woman serving in the federal judiciary.