Employment Law Archives

We are dedicating this post to COVID-19 information and resources. Our goal is to centralize key links so that businesses, landlords, employees and tenants can find actionable information quickly. If you need a legal consultation regarding navigating and coping with COVID-19 relating laws and regulations, please contact our office. Instead of writing new articles, we will post ongoing updates here with a date separator.

GENERAL RESOURCES AND LINKS:

Center for Disease Control’s (“CDC’s”) COVID-19 Page.

State of California’s Pandemic Roadmap (Stages 1-4)

UCLA Health’s COVID-19 Resources Page

American Industrial Hygiene Associations COVID-19 Resources Page

Update June 6, 2020

Trump signs the new PPP extension law into law.

Update June 3, 2020

Senate passes PPP bill, sends to President. Under the proposal, small businesses would have to spend 60% of the loan money on payroll instead of the previous 75%. Read more here.

Update May 29, 2020

House votes to extend PPP period from 8 weeks to 24 weeks. Read more here.

Update: May 19, 2020

Round 2 PPP funds are still available for qualified small businesses.

Update: April 16, 2020

United States Department of the Treasury. The U.S. Treasury announced Round 2 of PPP.

Update: March 31, 2020

United States Department of the Treasury. Towards the end of March the U.S. Treasury launched the Payroll Protection Program (“PPP”). The purpose is the provide small businesses with the resources they need to maintain their payroll, hire back employees who may have been laid off and cover applicable overhead. The program is administered by the SBA. The first round funds were exhausted very quickly.

March 25, 2020.

To organize our COVID-19 page, we are going to group information by level of government using Federal, State, County / Local.

FEDERAL RESOURCES: The federal government through a variety of agencies: SBA, CDC, Department of Labor and Congress (pending legislation) provides resources to meet the COVID-19 challenges.

The United States Small Business Administration has created a specific section on their website to provide COVID-19 guidance for small businesses. You can find it here: https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources

The Center for Disease Control (CDC) has published Employer Guidance here: https://bit.ly/3bzKSCT

The Department of Labor has created a publication called “Guidance for Preparing Workplaces for COVID-19.” This is a great resource as the country undertakes re-opening after the initial COVID-19 wave.

The Equal Employment Opportunity Commission (“EEOC”). Click here to see the actions taken by the EEOC in response to the Coronavirus and how that may affect Employers and Employees.

STATE OF CALIFORNIA RESOURCES:

The Office of the Governor of California. Click on this link to see an all-inclusive summary of actions taken by the Governor of California to combat COVID-19. Within this list are links to specific orders and releases that may be relevant to you. This includes the stat-at-home order, essential v. non-essential business designations, re-opening guidance and much more. If you want to consult with an attorney on your specific concern, please contact our office.

California Employment Development Department (“EDD”). The EDD has launched or re-activated a number of programs to help businesses and employees in an effort to reduce the impact of unemployment. Similar to other agencies and institutions, the EDD has as COVID-19 page here. This is a great resource for employers and employees, covering questions like extended unemployment insurance, work-sharing, furloughs, PUA, disability insurance, paid family leave, taxpayer assistance and many more. If you want to consult with an attorney on your specific concern, please contact our office.

The California Infrastructure and Economic Development Bank (IBANK). Many Californians have never heard of the IBANK. What is the IBANK? This is similar to the Federal SBA program referenced above. Click here to learn more about the COVID-19 assistance available from IBANK. If you want to consult with an attorney on your specific concern, please contact our office.

California Department of Industrial Relations. The California Department of Industrial Relations has a wonderful resource to help businesses comply with safety guidance. There is general guidance with some specific guidance for identified industries.

California Court System. This is a full one-third of our government. The Courts have been severely impacted by COVID-19. The Court the system has drastically cut back operations and is actively adapting new technology to permit the administration of justice to go on. In the short term, this means the wheels of justice will move even slower. This is bad news for plaintiffs (including landlords seeking a proper commercial or residential eviction) as well as other civil plaintiffs.

In practice, these measures include: delaying hearings and trials, restricting physical access to the courts, emphasizing remote appearance, online mediations / settlement conferences and “triaging” of civil rights. In an environment with even more limited court access, who goes first? Criminal, Family, Real Estate (unlawful detainers), etc. etc?

In any litigation, external non-legal events can take precedence over the legal merits in influencing case resolutions. COVID-19 is one of those non-legal events that litigants will have to weigh as the look to the court system for resolution. Click this link for the full list of California Court COVID-19 measures. If you want to consult with an attorney on your specific concern, please contact our office.

COUNTY/LOCAL RESOURCES. Local resources include County-level on down to municipality, city or town level government. The California State Association of Counties (“CSAC”) website is a great resource to quickly find your county’s COVID-19 website. Once on the CSAC website, click on the link entitled “County Websites Dedicated to the Coronavirus” and that will provide a hyperlink for each of California’s counties.

CONSIDERATIONS FOR EMPLOYER, ASSET OWNER OR INDIVIDUAL: This article contains links to resources and information that can be the starting point of a legal analysis to assess your options, opportunities and rights. If you want to consult with an attorney on your specific concern, please contact our office.

What about non-legal considerations? We’ve gathered some questions that we believe can help guide the decision making process during these challenging times:

How serious of a threat do you perceive that this event is to your business?
How serious could it be in a probabilistic analysis?
Where are there opportunities?
Where are there lessons?
How do you create a path forward through this environment?

In meeting these challenges, we recommend consulting with your advisors — lawyers, CPAs, financial advisors – to review these and other questions to determine your best path forward.

As always, we are here to help.

General Background

The classification of an individual performing services for an operating company has long been an area of ambiguity and contention. Oftentimes, an employer may want to classify a new hire as an independent contractor. Oftentimes, an employee may want to be classified as an independent contractor. The critical hot buttons at issue with the classification are tax withholdings, tax deductions, eligibility for overtime, meal breaks, rest breaks and qualification for benefits.

The 9th Circuit’s Dynamex Decision: What You Need To Know

1. Dynamex DOES apply retroactively under California law. The Appellate Court affirmed the the California Supreme Court’s interpretation that Dynamex does apply retroactively, quoting it “is basic in our legal tradition” that “judicial decisions are given retroactive effect.” Ok, that resolves California law. But what about retroactive application under federal law? 2. Dynamex also DOES apply retroactively under Federal law. The defendant-appellee argued that retroactive application was a violation of Due Process. Here, the Court distinguished between retroactive application in a civil context versus a criminal context. As this was a civil matter, the Court referenced the analysis of a legislative act, quoting “adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality” and are evaluated under a rational basis test. Here, we have a judicial rule (i.e. Dynamex) and not a legislative act. Therefore, the court reasoned, “[e]ven more deference is owed to judicial common-law developments, which by their nature must operate retroactively on the parties in the case.” 3. Where can an Employer Win on Summary Judgment (or where might there be no employer-employee relationship)? As we advise our client employers, Prong B of the ABC test provides the clearest opportunity. The example used is where a retail store hires a plumber to repair a bathroom leak, then in that situation the hiring entity (retail store) is not engaged in the same usual course of business as the putative employee (plumber). See our earlier articles regarding Dynamex for a review of the ABC test. 9th Circuit in a New York State of Mind: The 9th Circuit is frequently portrayed as populated by jurists from the West Coast or Pacific Northwest. However, this 9th Circuit decision was authored by the Honorable Frederic Block, Unted States District Judge for the Eastern District of New York, sitting by designation. ALG in the Courtroom: The Honorable William Alsup, District Judge was the Presiding Judge on the Appeal Panel. We recently appeared before Judge Alsup in a client matter. How Do You Manage the Risk?: Business and life is about risks, mitigating risks and managing risks. Litigation arising from misclassification is one of those risks. The first approach a company (or contractor) can take is to set up the work relationship as an employer-employee relationship. The second approach would be to set up the relationship as an independent contractor relationship after running through the test with your legal counsel, and with full appreciation of the risks of misclassification in financial terms. The third approach is to search for insurance to cover this risk. At the present time, we are not aware of any, but new products are being created all the time, so we recommend that employers revisit this issue with their insurance brokers periodically.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2018, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 590 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

The California Supreme Court recently ruled against Starbucks regarding its practice of not paying employees for alleged “de minimis” work performed after clocking out. Starbucks had a practice of having their employees perform certain administrative and clean up duties after “clocking out” for the day. The effect was that the employees were not paid for this time. Allegedly, Starbucks thought it was okay because this was not a lot of money at issue (i.e. “de minimis“). Quoting from the opinion, “The de minimis doctrine is an application of the maxim de minimis non curat lex, which means ‘[t]he law does not concern itself with trifles.'” Here, though, the California Supreme Court did not view this as a trifle.

The California Supreme Court held that:

(1) California statutes and wage orders have not incorporated the Federal “de minimis doctrine” and
(2) California’s general background de minimis principle is not applicable here

Quoting Justice Liu:

“What Starbucks calls de minimis is not de minimis at all to many ordinary people who work for hourly wages.”

Applying the Starbucks Decision:

Our view is that in this context, “de minimis” is probably dead, so reliance on that concept for justifying post-closing, or pre-opening work “off-the-clock” is misplaced. Perhaps it was not previously, but things change. As Justice Liu wrote in his concluding paragraph of his opinion “The relevant statutes and wage order do not allow employers to require employees to routinely work for minutes off-the clock without compensation.”

How Do You Manage the Risk?:

Business and life is about risks, mitigating risks and managing risks. Litigation from arising from failing to fully pay employees is one of those risks, and it is significant. The first approach a company can take is to have employees perform all duties on the clock, and document that requirement in your policies and procedures. If you need an up to date California employer handbook, we can do that for you.

The second approach would be to test the boundaries of the word “routinely” and permit off the clock once in while, after running through the test with your legal counsel, and with full appreciation of the risks. We don’t advise this approach, but merely recognize that some could read the opinion that way.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

It’s as Easy as A-B-C, right?

Independent Contractors are always a point of tension. Recently, the California Supreme Court adopted the “ABC” Test to determine distinguish between employees and independent contractors. The classification of an individual performing services for an operating company has long been an area of ambiguity and contention. Oftentimes, an employer may want to classify new hires as independent contractors. Oftentimes, employees may want to be classified as independent contractors. The critical hot buttons at issue with the classification are tax withholdings, tax deductions, eligibility for overtime, meal breaks, rest breaks and qualification for benefits.

The ABCs of the Dynamex Decision:

The California Supreme Court adopted the ABC test to determine whether an employee is an independent contractor. As the Court wrote: “Under this test, a worker is properly considered an independent contractor to whom a wage order does not apply only if the hiring entity establishes:

(A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring”

Applying the ABC Test:

The burden of proof is on the employer (i.e. the “hiring entity”). That means, if the classification is challenged, then the courts will start with the presumption that the individual at issue is an employee, and the employer will have to prove that the relationship passes the ABC test. Prongs “A” and “C” of the test can usually be satisfied with some planning and controls. However, we believe that “B” will prove to be very challenging for many companies or independent contractors.

How Do You Manage the Risk?:

Business and life is about risks, mitigating risks and managing risks. Litigation arising from misclassification is one of those risks. The first approach a company (or contractor) can take is to set up the work relationship as an employer-employee relationship. The second approach would be to set up the relationship as an independent contractor relationship after running through the test with your legal counsel, and with full appreciation of the risks of misclassification in financial terms. The third approach is to search for insurance to cover this risk. At the present time, we are not aware of any, but new products are being created all the time, so we recommend that employers revisit this issue with their insurance brokers periodically.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

FOR IMMEDIATE RELEASE

62 Year Old, African-American Former Branch Manager Files Racial Discrimination Lawsuit Against Terminix, a Subsidiary of ServiceMaster: Suit Highlights Wrongful Termination, Age Discrimination, Race Discrimination, Failure to Prevent Discrimination, Retaliation, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress and Statutory Unfair Competition

EL SEGUNDO, CA (September 9, 2017) — Ernest “E.J.” Walker, a 62 year old African American, filed suit this month in San Francisco Superior Court against Terminex International Company L.P. (Terminex) and ServiceMaster Global Holdings, Inc. (“ServiceMaster”), ticker symbol “SERV”, a publicly traded Fortune 1000 company that provides residential and commercial services. The suit accuses Terminex and ServiceMaster of wrongful termination, age discrimination, race discrimination, failure to prevent discrimination, retaliation, intentional infliction of emotional distress, negligent infliction of emotional distress and statutory unfair competition.

According to the suit, Ernest was a loyal employee of Terminex for over twelve years. Prior to his alleged wrongful termination, he had performed exceptionally well, leading the company’s “largest branch in the western division” (Alameda, Contra Costa, San Francisco, San Mateo and Santa Clara) to “record revenue and profits”. When his supervisor left, E.J indicated his interest in the job. Instead of being considered for the promotion, Terminix told him that he would not be considered “based on his performance”, and Terminix hired a white male. Shortly thereafter the new white supervisor inexplicably gave him a “written warning” and thereafter his new white supervisor put him on a “a performance improvement plan claiming E.J. was not meeting expectations”.

Ernest “refused to sign the performance improvement plan” and ultimately “filed an ethics complaint” against his new supervisor. Yet, “[t]he same people who gave E.J. his performance review, were tasked with investigating the review”. Terminix placed him on a second performance improvement plan, and followed that with a termination for alleged “performance deficiencies”.

The lawsuit, filed in San Francisco County Superior Court, seeks damages for lost wages, special damages including loss of income and benefits and medical expenses, interest, punitive damages, and attorneys’ fees and costs. Terminix has since removed the case to the United States Federal District Court, Northern District of California. Click here for a copy of the Complaint.

“We’re eager to commence discovery to determine why Terminix failed to consider an apparently exemplary employee for promotion. We’re interested to discover whether our the Company’s stated reasons for termination are legitimate and non-discriminatory, or merely a pretext for unlawful age-based, race-based discrimination and retaliation. We are also curious to learn what actions, if any, that the company took, once it was on notice of E.J. complaints.” says Chris Adishian.

About Adishian Law Group, P.C.

About Adishian Law Group, P.C. Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

Employment practices liability insurance (EPLI) is practically a necessity for a business of any size in California. Employment practices liability insurance can reduce the risks associated with employee lawsuits in California. It is important to understand your employment practices liability insurance policy thoroughly before buying it.

Where the law is not clear, or you are in an area with a lot of litigation, that often translates into financial risk in the form of litigation costs. One way to mitigate the risk is to obtain insurance.

For medium to larger employers, a good employment practices liability insurance (“EPLI”) should be considered with the advice of your insurance agent and legal counsel. There are a lot of provisions to reviews, some of the critical ones are:

Choice of counsel: This is very important. Do you get to pick or the insurance company?
Deductible/Retention: How much is it?
Duty to Defend: What triggers the insurance company’s obligation to defend the claim?
Costs of Defense: Is it total cost, or just a fixed dollar sum?
Liability Coverage: What is covered? What is not covered (exclusions)? What is the cap?

California employers should review their EPLI coverage on a regular basis with an experienced employment lawyer and insurance agent on a recurring basis.

About Adishian Law Group, P.C.

For more information about this case, contact Chris Adishian:

FOR IMMEDIATE RELEASE

Female Former Director of Client Solutions Sues Digilant: Suit Highlights Disability Discrimination, Failure to Provide Accommodation, Failure to Engage in an Interactive Process, Failure to Prevent Discrimination, Retaliation, Wrongful Discharge in Violation of Public Policy and Unfair Competition.

EL SEGUNDO, CA (August 20, 2017) — Samira Judeh filed suit this month in San Francisco Superior Court against Digilant, Inc. (Digilant), a marketing technology company that assists in programmatic media buying. The suit accuses Digilant and its employees of disability discrimination, failure to provide accommodation, failure to engage in an interactive process, failure to prevent discrimination, retaliation, wrongful discharge in violation of public policy and unfair competition.

According to the Complaint, soon after learning that Samira would have to be out of the office for doctor’s appointments on a recurring basis, “Chris Cooper, Digilant’s Vice President of Sales at Digilant began harassing Samira. He was demanding, belligerent and made sarcastic comments to Samira.” Samira informed the Chief Operating Officer that Cooper was “harassing her.”. Nothing was done. Soon thereafter, Samira heard Cooper tell Digilant’s Director of Sales Accounts, “I don’t give a shit what she has going on medically. She’ s a bitch!”

In early May, Samira informed Digilant’s Chief Operating Officer him that she had “been diagnosed with a medical condition and that she would need to go to more doctor’s appointments.” Approximately three weeks later, Digilant terminated her, allegedly for the reason that there was a reduction in work force.

The lawsuit seeks damages for lost wages (front and back pay), benefits and career opportunities, special damages, punitive damages, interest and attorneys’ fees and costs. Digilant has since removed the case to the United States Federal District Court, Northern District of California. Click here for a copy of the Complaint.

“We’re eager to commence discovery to determine what actions, if any, Digilant took once it was on notice of Samira’s medical condition to engage in a good faith interactive process with her or to provide an accommodation. We also interested to learn what steps the Company took to prevent discrimination against Samira and whether or not the Company retaliated against Samira.” says Chris Adishian.

About Adishian Law Group, P.C.

Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of December 2016, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 10 foreign countries in over 520 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

California leave laws are complex. California leave laws are inter-related. California leaves laws are always changing. We receive calls all the time from our clients and potential clients asking what is the correct way to handle an employee who has requested leave or is out on leave.

This is one of the most complicated areas of California Labor Law. Employers are obligated to provide an ever-changing array of leaves to employees who qualify. Some leaves come with job protection and some do not. On the employee side, it is important to understand your evolving rights as well. Many employees do not understand what leaves are legally available to them.

Disability claims appear to be on the rise. In disability cases, Employers also have an obligation to make a reasonable accommodation and engage in a good faith interactive process provided that they are on notice of the disability. However, the employer is not obligated to suffer a “hardship” as a result of the proposed accommodation — and leave itself is a form of accommodation. But how much leave is enough before you can terminate an employee? The law is not clear.

A common scenario we see is where our corporate clients find themselves in an apparent never ending “limbo” where an employee has exhausted all legally required leave, but the employee has not returned to work, and is requesting additional leave. If they fire the employee, they could face a “retaliation” lawsuit even where they provided legally required leave. One mediator (a retired Judge) summed it up humorously as: “Welcome to California, home of beautiful weather and [##%!] legislation.”

The best an employer can do here is to either (1) allow the employee to remain on leave, and consult with an attorney before terminating or (2) obtain a written note from the employee’s health care provider that he or she is not able to return to work and will not be able to do so in the future.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this article, contact Chris Adishian:

FEHA Mediation and EEOC Mediation are options to consider when an ex-employee has filed a complaint directly with the agency. You CAN have an attorney represent you at the FEHA Mediation (or EEOC Mediation), and we believe you should, as your former employer will almost surely be represented by counsel.

What is FEHA? FEHA is the acronym for the Fair Employment and Housing Act, which references the set of California Statutes defining and prohibiting illegal discrimination in housing and employment. The California agency that enforces these laws is the California Department of Fair Employment and Housing (DFEH).

What is EEOC? EEOC is the acronym for the Equal Employment Opportunity Commission which is the Federal agency responsible for enforcing the federal laws prohibiting illegal discrimination in employment.

Resolving Claims of Discrimination: Agency v. Civil Court: In the majority of the plaintiff’s cases that we handle, we obtain a “right to sue letter” from the DFEH and proceed directly to civil court (state or federal), thereby bypassing the State Agency’s )i.e. DFEH) internal investigation and dispute resolution process.

However, some plaintiffs elect to file their complaint directly with DFEH (or EEOC). Upon receipt of a the charge of discrimination from a complainant, DFEH (like the EEOC) follows a standard dispute resolution flowchart for each complaint. You can find out more about EEOC mediation here. An important part of the dispute resolution process for the DFEH and EEOC, is a mediation between the parties conducted with a third party mediator while the charge is pending in front of th DFEH or EEOC.

Importantly, a plaintiff can have an attorney represent them at the mediation stage of the agency’s dispute resolution process – and they should! Otherwise, the inexperienced plaintiff will be there without an attorney, facing a company, its representatives as well as the company’s counsel.

We’ve represented clients at both DFEH and EEOC mediations in Southern California and Northern California, and around the country in EEOC mediations. If you have filed a discrimination charge, and are looking for representation at an agency mediation, please contact us and we will be happy to review your case to see if we can assist.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this article, contact Chris Adishian:

FOR IMMEDIATE RELEASE

Puerto Rican American sues TIAA-CREF: Suit Highlights Wrongful Termination, Race Discrimination, National Origin Discrimination, Harassment, Failure to Prevent Harassment, Retaliation, Retaliatory Discharge, Statutory Unfair Competition, Intentional Infliction of Emotional Distress and Negligent Infliction of Emotional Distress at one of largest financial services firms in United States

EL SEGUNDO, CA (June 17, 2016) — Rafael Rivera Luciano, a Puerto Rican American, filed suit this month in San Francisco Superior Court against Teachers Insurance and Annuity Association of America (TIAA-CREF), one of the largest financial institutions in America, which traces its roots to Andrew Carnegie. The suit accuses TIAA-CREF of wrongful termination, race discrimination, national origin discrimination, harassment, failure to prevent harassment, retaliation, retaliatory discharge, statutory unfair competition, intentional infliction of emotional distress and negligent infliction of emotional distress.

According to the suit, the discrimination commenced shortly after Rafael began his employment with TIAA-CREF. Rafael was employed on the California’s 529 college savings plan (“ScholarShare”). In this position, the Complaint alleges that his former supervisor subjected him to pervasive and ongoing harassment, abusive conduct and racist slurs. According to the Complaint, his supervisor “referred to Rafael as “McFly”, a demeaning term meant to insult one’s intelligence if the connection is made to the movie “Back to the Future”. This same supervisor “threatened to “send [Rafael] back to Mexico” if Rafael did not open more accounts in his San Diego territory.” When Rafael properly complained he was told that “Ralph can be a bit rough on the edges”.

Per the Complaint Rafael’s supervisor was finally terminated. Almost simultaneously, Rafael received a written warning, stating that he was being disciplined for “failing to conduct [himself] in a manner that is consistent with TIAA’s values.” Rafael responded by requesting specific instances of when his “values” fell short. He never got a response. He was terminated about 15 months later.

“Rafael’s proper complaints to management were ignored, and he was terminated. We look forward to commencing discovery to determine whether the stated reasons for Rafael’s termination were simply a pretext for unlawful and wrongful conduct. We’re interested to learn if one the State of California prime vendors is violating California statute, case law and public policy while profiting from its citizens.” stated Chris Adishian, attorney at Adishian Law Group, P.C. and one of the lawyers representing Rafael. “We look forward to shedding light on the facts of this case.”

The lawsuit, filed in San Francisco County Superior Court, seeks damages for lost wages, benefits and career opportunities, emotional distress, special damages, punitive damages, and attorneys’ fees and costs. Click here for a copy of the Complaint.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian: