SELECTED NOTABLE CASES
To protect our clients and with the abundance of caution to adhere to the terms of certain agreements we are not using real names of persons, parties, plaintiffs or defendants in these matters. These are real cases that our office has taken on to successful resolution. These cases were chosen not for their dollar value but mostly because they illustrate the unique nature of each type of matter and set of facts. In no way does this constitute advertising, solicitation, or any promise or guarantee for results. Every matter is unique and the facts of each individual case must be analyzed separately.
I. Are truck drivers who sign an “independent contractor” agreement who also own their trucks or lease them from the employer, pay for their own expenses, fuel, and repairs, but rely on the company dispatchers for work actually misclassified “employees” with all the applicable rights under the law?
Client: Truck Drivers A (truck owners) and B (truck lessee)
Defendant: Fortune 100 global South Korean multinational corporation.
The Law: Private Attorney General’s Act, Failure to pay overtime, Failure to provide rest breaks, Failure to provide meal breaks, Failure to pay for necessary expenses, Willful misclassification, etc.
Conclusion: After two years of litigation, an agreement was finally reached to settle as a class action for roughly 160 truck drivers (both owners and lessees). The agreement was reached 4 weeks after mediation with Jeff Krivis for a little over $2.5m. It is likely we would have proven the truck drivers were misclassified and should have been considered employees and treated as such. However, it was questionable whether we would get the overtime, as that comprised a large portion of the estimated potential damages calculations that could have pushed this case well into the 8 figures. The compromise allowed for our client(s) to receive something sooner rather than be deprived of moneys many years later. In order to prove up these figures, there were many law clerks and attorneys hired for the project of digging through what amounted to roughly 200 boxes of evidence and files. Furthermore, our class rep (Truck Driver A) went through a bankruptcy and had individual FEHA claims that complicated the matter further.
This was a complex case involving our Truck Driver A client’s individual wage and hour issues, individual discrimination issues under the FEHA for disability leave and associated retaliation, PAGA, and bankruptcy issues, as well as the distinctly different duration of work and lessee status of Truck Driver B, which comprised of about 2/3 of the potential class. Mediation had a profound impact on expectations of both parties as well as the third party carrier for the defendant, who seemingly was in the dark about a lot of these facts. Ultimately a highly complex matter was reduced to a sum certain. Pederson Law APC, Jackson Law PC, and our office are now in the process of finalizing settlements through the court which will take us another year or so before complete resolution. Originally two firms began this litigation splitting the duties. In the middle of litigating this matter, our primary plaintiff declared bankruptcy and we went through the process of having the BK Trustee rehire our firms. Not only that but malpractice rights surfaced because the first BK attorney neglected to list this lawsuit as an asset and gave profoundly bad advice to the client regarding related issues that had an impact on this matter. Ultimately, a very experienced, ethical and profoundly helpful BK attorney, Harlene Miller, was hired and the issues were resolved so that we could confidently continue with litigation to its settlement. Truck Driver A represented those who had owned their trucks, Truck Driver B represented those who leased them from the Company defendant. The final outcome came about due to expert mediation, plaintiff’s team putting forth strong credible evidence, and reasonable defense counsel who wisely recognized the exposure its client faced and a carrier who quickly recognized an opportunity to cut its losses.
II. Does the employer owe wages for an employee who failed to submit his timesheets accounting for those hours (OT) he claims were worked?
Client: Engineer John Doe.
Defendant: Fortune 100 global IT Company.
The Law: California Labor Code §§ 510, 1194 and 1198; IWC Wage Order 4 Section 3 failure to pay overtime, and associated claims for wage statements and final paycheck.
Conclusion: A six figure settlement in mediation and favorable non-monetary terms. The employer is required to pay for all wages “it knew or should have known” were worked.
Client worked for the same company in the same department in the same position for the past 33 years. When he started, he was one of three and in the last 10 years, he maintained the department alone. Due to the nature of the computer operations, it needed to be monitored and run 24/7. When it was a 3 person staff, they rotated and backed each other up. However, in the last 10 years, he went at it alone. Despite that, his timecards only showed that he worked 40 hours M-F and about 12 hours of overtime Saturdays and Sundays. We alleged the employer knew or should have known our Client worked an additional 40 hours of unpaid overtime M-F that was not compensated. Our Client’s claims included the reason he only clocked 40 hours during the week M-F was that he was afraid to lose his job. He had a suspicion his job was being outsourced or automated, making it difficult to find another job. Furthermore, he argued that he wanted to keep working long enough to earn his pension, which he eventually did.
Upon his eventual job elimination, he had fully vested in his company’s pension plan, earned a six figure severance package and health benefits, and was eligible for an additional $25,000 if he would waive any and all rights. After discussing the situation with our office, he decided to roll the dice and waive the optional severance to pursue his rights.
Our office submitted a demand for unpaid wages and damages to the corporate office in Irvine, California as well as the parent corporation in New York. Defendant hired Payne & Fears, a defense firm formed in 1992 with offices in Irvine, Los Angeles, Las Vegas, Phoenix, Salt Lake City, San Francisco, and Silicon Valley. The initial response included a counter-offer of $33,000 and some change which was rejected. Realizing this battle would require certain resources, our office brought in co-counsel Neil Pedersen and Armond Jackson at Pedersen Law. At mediation, defense produced a dozen emails where our Client wrote such statements as “…it’s a good thing you emailed me, I’m usually in bed by 10” and “..I’m usually not up this late….” at around 11PM. This was significant because our Client’s claim for overtime included the allegation that he worked during the hours spanning 7PM through 7AM the following day. Also, we received discovery requests referencing a dozen casinos, electronic transactions, bank accounts, house accounts, etc. We later came to find out our Client liked to frequent casinos, even during some of these “work hours”.
After much negotiation, ultimately defense conceded our Client did work over-time hours that were not compensated. The only issue remained as to how much over-time was actually compensable. Figuring that out required significant analysis, data crunching, and offer of proof. Although the deal came extremely close to falling through (because we were so far apart on the settlement figures), the parties eventually did come to an agreement at $195,000.
III. Can the employer be held responsible for sexual harassment even if the plaintiff was not the target of the unwanted sexual behavior?
Client: A professional Jane Doe.
Defendant: Utility company.
The Law: The Fair Employment and Housing Act (FEHA) violations – Sexual harassment and retaliation and also Wrongful Termination against Public Policy.
Conclusion: Negotiated a six figure severance and very detailed and favorable non-monetary terms including a recommendation letter. To be a victim of sexual harassment does not require that the harasser has “sexual interest in” or “attraction” directed towards the plaintiff.
After working 13 years in progressively senior roles within the same company (at one time even offered and turning down the CEO position), our client, a well known subject matter expert and ultra high performing mid level executive with multiple advanced degrees, was wrongfully terminated with the pretextual reason of insubordination and poor performance.
In the past year, she had submitted numerous complaints to HR of sexual harassment allegedly committed by her boss (the CEO) which also involved his outspoken secretary. Inexplicably, HR failed to investigate any of those complaints. During this time, our client was demoted, responsibilities stripped from her, her title changed, and for the first time in her career, received a negative performance review which ultimately led to her termination with a low-ball severance if she would sign an agreement they shoved in front of her.
She called our office and eventually retained our firm to pursue her rights.
Our office initiated communication with her former employer and they hired a national 12-office law firm founded in 1968, Brownstein Hyatt Farber Schrek to defend. After rigorous efforts and negotiations, ultimately our client settled for a nice package including six figure monetary as well as favorable non-monetary benefits. The settlement dollar value was more than three times what she was originally offered and it also included extended health benefits, and something rarely found in these settlements and what our Client specifically wanted and we got, a favorable recommendation letter from a company executive. The outcome gave our client everything she wanted.
IV. Is it illegal to terminate someone on pregnancy leave if the reason given is “elimination of the position”?
Client: A pregnant administrative assistant Jane Doe.
Defendant: Medical clinic/doctor’s office.
The Law: The Fair Employment and Housing Act (FEHA) violations – Pregnancy discrimination, retaliation, and wrongful termination against Public Policy with missed break violations under California labor code.
Conclusion: More than two year’s salary and quick settlement. Pretextual firing is illegal when the burden shifts and the evidence proves a discriminatory motive and no other reasonable justification for the termination.
Our client worked as a Medical assistant earning $16 per hour, 40 hours per week, for roughly one year at this medical clinic under the supervision of several physicians. She was a good employee, proficient with her duties, and a pleasure to work with. We initially found that the employer never allowed her 10-minute rest breaks in violation of Labor Code 226.7.
Also, it turns out several months into her employment, our Client discovered she was pregnant. She informed her employer and gave 30 days in advance notice of her first doctor’s visit. Since that time, she endured frequent inquiry and harassment for no apparent reason other then to intimidate her into not taking authorized pregnancy leave. The questions became so invasive into her privacy that it created a persistent and pervasive systematic atmosphere of harassment in the workplace.
Eventually, she was told that purportedly due to restructuring, her position would be eliminated in 30 days. She then went to her previously scheduled doctor’s visit, which the employer had already approved, and was terminated upon her return (many weeks earlier than the 30 days she was already told).
She called our office and we represented Mom to be Doe. Mom to be Doe was concerned how her pregnancy might be affected by the added stress of litigation. Understandably, nothing was more important to her then her soon to be born child. We took on the case and made sure we advocated for her to the fullest. Her former employer hired P.K. Shrieffer, a national multi-location firm with over a dozen attorneys, senior counsel and partners.
Ultimately the parties came to an agreement. Defense counsel wisely recognize the exposure based on the facts of this matter and we feel the carrier pushed for early settlement. Client was able to move on with her life the quick turn around also helped during a time her family needed the finances. In this case, the employer did the right thing by quickly addressing an egregious error. We would have gladly pushed this further into litigation, however, the settlement was reasonable and we can only hope the employer has corrected their practices for the future.
V. Can you recover for injuries if the person who rear ended you has no car insurance and the driver of the car you are in also has no insurance? Normally no. In this case, yes.
Clients: Passengers in a multi-car auto accident.
Defendant: Joint with independent contractor drivers and a major on demand car service.
The Law: Torts / Personal injury.
Conclusion: Individual settlements up to Six figures inclusive of pain and suffering, lost wages, and all medical bills paid.
5 Client(s) were passengers of two vehicles owned by two separate individuals working for the same popular ride-share taxi-like company. They were stopped at a red light behind one another when a drunk driver rammed his Ford truck into a third vehicle behind both of them which then caused a chain reaction resulting in a 4 car collision. Injuries were sustained requiring several surgeries to breast implants and a broken wrist. The others needed soft tissue chiropractic services. The drunk driver readily admitted he was drunk and that he didn’t have a license to the police officer filing the report.
Rear end collision by a drunk driver while stopped at a red light. Although we lawyers say there is no such thing as a “slam dunk” in the legal world, if there were such a thing, this would have to be it right? Unfortunately, not exactly.
Problem #1. The drunk driver had no insurance. Disappointed of course since we would have to now look for uninsured motorist coverage, which is usually a fraction of the normal coverage limits.
Problem #2. The driver of one of the two ride-share vehicles let his insurance lapse. This meant the driver of the vehicle that picked up some of my clients and drove them around town all night and took their money for doing so, was also driving without car insurance. No car insurance means no uninsured motorist coverage.
Problem #3. The ride-share company flat out rejected our claim for recovery, stating their policy expressly requires the driver working for them must be insured to trigger coverage by their carrier. Also, they insisted that they had an ‘excess’ coverage type which meant the driver’s insurance must cover first before their insurance was obligated to cover any overages. Strike three!
Despite the obstacles and hoops we had to jump through, we eventually got the major carrier of the ride-share company to accept responsibility and pay under its uninsured motorist provision despite the driver of their independent contractor’s vehicle not being insured at the time of the collision. Also, despite their provision that the driver needed insurance to trigger coverage, they could not deny that the driver was working for them at the time of the accident and that they knew he was working because of the login he used. We eventually settled for a healthy six figures which covered all medical bills and gave our clients an amount they were happy with for their pain and suffering. We reduced some of our fees so that a larger share could be given to our clients. One of our clients had her breast implants replaced. Another had several surgeries to her wrist, which was already in a cast at the time of the accident but got broken again as a result of the accident. They were all treated and have since happily moved on with their lives. Nobody can forget a tragic accident that impacts your life in this tangible way, however we were glad to be there to help when it mattered.
VI. If you are an employer who terminates a long term problem employee with a history of poor performance and multiple documented work related issues, can you still be held liable for discrimination if they are on FMLA at the time of termination?
Client: Defended; good guy small engineering company employer.
Plaintiff: Disgruntled problem ex-employee.
The Law: Allegations of disability discrimination, retaliation under the FEHA and wrongful termination against public policy.
Conclusion: Settled for a small fraction of the original demand by the plaintiff’s attorney, saving many tens of thousands and countless hours in litigation.
The plaintiff was a long term employee who was terminated and thereafter alleged that she had been retaliated against due to her ongoing medical issues which led to her taking approved leave. The plaintiff had been an employee of the defendant’s company since 1999 (17 years). She had been promoted once from accounting to Accounting Manager (although there was no employees reporting to her). She had taken leave that amounted to several months requiring the employer to hire a temp. The temp performed so well she was eventually hired on full-time and the plaintiff was terminated in a letter specifically citing her poor performance in recent years, excessive absenteeism, tardiness, and leave without notice. The letter also specifically addressed that her termination was not due to her lawful right to take leave for medical reasons. Plaintiff hired a well known and respected plaintiff’s side employment attorney who sent a demand for settlement. The employer called our office for help and upon review of the facts, decided to represent him and take on the case.
Although much of the facts were in dispute, Plaintiff was actually on leave when terminated. She had doctor’s notes and had properly filed for medical leave. She was eventually terminated after her second “return to work date” had lapsed and had called in days later than expected with a text message stating she had a doctor’s note. Officially, she could have been categorized as a “no-call no show”, although it was not actually recorded as such. Despite our office having dozens of documented disputes with coworkers and vendors who had officially filed complaints against the Plaintiff, and her insubordination defying direct orders, the Plaintiff’s counsel pointed to the fact she was not terminated during this alleged time of misconduct. Our office argued our Client had a soft heart, as the Plaintiff had recently lost her husband and he did not want to further traumatize her during that time of deep personal suffering. Our point was that this is one of the good guys and it would be immoral and unjust to punish him for his compassion and to twist the law to make him liable for nothing short of a good deed. Furthermore, we had evidence, Plaintiff was perpetually months behind in her work for the past several years and on one occasion even failed to pay the defendant’s cell phone bill which was her responsibility alone, causing it to shut off until he fixed it himself several days later. Plaintiff often complained that there was too much work and that she needed to hire support staff. Client repeatedly offered to go to a temp agency but plaintiff insisted on hiring her daughter, which she did on two occasions without consent or approval and on one of those two occasions, specifically against a direct order. Since Plaintiff was in charge of accounting, she paid her daughter. There was also a calendar, which the plaintiff herself maintained in her own hand writing, that indicated many unexcused absences, lates, and early leaves that were not approved and unrelated to any legitimate medical or business purpose or authorized leave. Plaintiff’s counsel again pointed to the fact that despite all of our claims, Plaintiff was still not terminated, proving she was in fact a good employee and when she was finally terminated it was only due to her disability and associated requirement for leave and treatment.
During the time of Plaintiff’s leave of absence, which was extended at least two times, Client had to hire a temp. The temp performed exceptionally well, only confirming for our Client his suspicions that Plaintiff had long been underperforming and taking advantage of his kindness. The temp cleaned up Plaintiff’s office and was fully caught up on all work, even asking for more work, by just the 3rd week on the job. Our Client then terminated the Plaintiff which caused her to seek counsel to threaten action.
Ultimately our client happily settled for a very small fraction of what was originally demanded, saving countless hours and tens of thousands in legal fees and also allowing him to focus on growing his business with this new better and less expensive employee. When asked, our client said, in the end, it was profitable to pay the settlement, get rid of the old employee and hire the new one.
Ongoing Cases updated September 4, 2017:
- Pregnancy discrimination, retaliation, and constructive termination.
- On going wage & hour meal & rest breaks and misclassification matters.
- Race discrimination, meal & rest break, and overtime violations against a major hotel chain.
- Breach of contract, fraud and collections of judgment enforcement matters.
- Ongoing personal injury auto accidents cases.
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