WERC Cases, Projects and Collaborations

WERC STUDENT SUCCESSFULLY REPRESENTS CLIENT IN COMPLEX UNEMPLOYMENT INSURANCE APPEAL. A trip to visit his mother out of state over Thanksgiving resulted in fraud allegations and denial of unemployment insurance benefits for a client. The client extended his stay to help his mother who had developed complications after a routine surgery. The unemployment insurance agency found that the client was not eligible for benefits because he was not "able and available to work" even though he continued to search for work and took on a temporary assignment while he was at his mother's home. In addition, the agency found that the client had been fraudulent when he failed to disclose that he was out of state. With a week's notice of the hearing, WERC student representative Rebecca Cushman (Spring 2009) did a through job in obtaining declarations from witnesses, researching the cases and representing the client at the hearing. The Judge adopted Rebecca's analysis in overturning the agency's denial of benefits and fraud findings.

WOMEN'S EMPLOYMENT RIGHTS CLINIC VICTORY IN CHANGING CITY COLLEGE HIRING PRACTICES. WERC had a major victory on September 25th when the City College of San Francisco Board of Trustees voted to change the college's hiring policies to comply with an Education Code requirement that it consider rehabilitation of job applicants with past drug convictions. WERC's former graduate fellow Nira Geevargis and former WERC students Margarita Calpotura, Paul Hogarth, Emily Hobbins, and Kara Farina helped bring about this change by participating in presentations to the CCSF Board, meetings with the Chancellor, legal research, or drafting proposed policy revision. Read more here. The ACLU of Northern California and All of Us or None joined forces with WERC to challenge the CCSF practices.

WERC VICTORY IN GENDER DISCRIMINATION CASE

WERC faculty, graduate fellow, and co-counsel celebrate
the case victory with our electrician clients.

After two years of litigation, the Women's Employment's Rights Clinic (WERC) has settled a multi-plaintiff gender discrimination case. The clinic represented six journey-level electricians in a Superior Court suit asserting that they were targeted for layoff on the basis of gender, in violation of the California Fair Employment and Housing Act. The employer claimed the reason for layoff was a work shortage, but the tradeswomen were removed from the worksite while the employer kept men with less time on the job.

After the trial judge resoundingly rejected the employer's fall 2007 motion for summary judgment, WERC began settlement discussions. The settlement agreement includes both a confidential monetary payment and requirements for ongoing training of supervisory personnel to address issues of gender discrimination and gender-based harassment.

Former WERC students Kenneth Linthicum, Robert Golde, Matthew Wood, and Dyana Prince conducted legal research or witness investigation early in the case. Julie Mercer and Betty Kwan worked on the summary judgment opposition, and Kara Farina prepared a request for judicial notice that accompanied our opposition to the summary judgment motion. Former WERC Graduate Fellow Nira Geevargis gathered crucial co-worker declarations for the summary judgment opposition, and WERC administrative assistant Fe Gonzalez put in countless hours providing support for the litigation.

It took tremendous courage for the clinic's clients, pioneers in women's entry in the trades, to come forward and challenge the layoffs. They feel--as the clinic does--that this case is an important step forward for women working in traditionally male trades, including the electrical industry.

WERC SUBMITS COMMENTS ON THE FAMILY AND MEDICAL LEAVE ACT. Read letter to Department of Labor.

In February 2007, WERC submitted comments to the U.S. Department of Labor in response to the agency's request for information on the Family and Medical Leave Act. More than 80 law professors from around the U.S, signed on to WERC's comments. Clinic students Yaromil Ralph (May '07) and Emily Hobbins (May '07) helped prepare the comments by researching both the legislative history of FMLA and recent sociological studies about the benefits of family leave.

Alumni Magazine Article about the Women's Employment Rights Clinic Golden Gate University School of Law Class Action, Fall/Winter 2004

Fall 2008	Spring 2008
Student Lauren Laundis staffs the clinic hotline.	Students Marco Garzon and William Walraven work collaboratively on a client's claim for unpaid wages.

Low wage workers throughout the Bay Area need legal assistance but cannot afford to hire an attorney. WERC students help to fill that critical gap in legal services.

SOCIAL WORKER PREVAILS IN HEARING FOR MEAL AND REST BREAK VIOLATIONS AND ROUNDING HOURS CASE. Fall 08 WERC Clinician Yvonne Li successfully represented a former social worker at an administrative hearing before the Labor Commissioner. The client worked at a nursing home facility where she was forced to work through her lunch and rest breaks in violation of California law. Her boss persistently paged her, and demanded that she keep working during lunch. In addition, her former employer had a practice of rounding hours worked instead of paying for actual hours worked. The practice resulted in a loss of pay which is prohibited by state and federal law. The administrative judge found in favor of the social worker on all claims. Spring 08 WERC Clinicians Jocelynn Maier and Caraine Leon Guerrero represented the client at the initial mediation conference and were instrumental in interviewing witnesses who testified at the hearing. Fall 07 Clinician Katie Gallagher drafted the wage complaint and did the preliminary investigation.

CLIENT GETS WAIVER ON UNEMPLOYMENT INSURANCE OVERPAYMENT CLAIM. Spring 09 Clinician Molly Laughlin represented a hospital nursing assistant, close to retirement age, who received a notice that she had to repay the state $5,400 in unemployment benefits. The client was originally awarded unemployment benefits by the state, but when her employer appealed, she had no representation at the unemployment hearing. The judge ruled in the employer's favor and the Employment Development Department (EDD) notified her that she had to repay all the benefits received. Molly represented the client at a second unemployment hearing, arguing that EDD had failed to give the client notice that she might have to repay the benefits, and that repayment would be a financial hardship. The judge adopted all of Molly's arguments and ruled that there should be a full waiver of the unemployment overpayment. In keeping with the clinic's holistic approach to our clients' problems, we also referred the client to another nonprofit for assistance with debt consolidation and credit management.

ANOTHER VICTORY AGAINST CAFÉ OWNER FOR UNPAID WAGES AND MEAL BREAK VIOLATIONS. Spring 09 Clinician Kerry Lafferty won an administrative hearing on behalf of a café worker who was forced to work off the clock and denied meal breaks. Kerry convinced the Labor Commissioner to name the individual owner of the café since the café was no longer operating. At the hearing, Kerry successfully cross-examined the owner and presented evidence from a former WERC client who had worked at the café. WERC in the Summer of 2007 successfully settled the witness's case for unpaid overtime wages and meal and rest break violations against the same cafe. WERC Clinicians Kim Wong (Spring 2007) and Katie Gallagher (Fall 2007) worked on the preliminary stages of the case, including investigation and filing the wage complaint.

DENIAL OF UNEMPLOYMENT BENEFITS OVERTURNED. Fall 08 Clinician Un Kei Wu represented a retail sales employee denied unemployment benefits after being fired when she requested job accommodation because of a medical problem during pregnancy. Un Kei successfully challenged the EDD's determination that the client was not "able and available to work," by demonstrating that the obstetrician had approved an eight hour work day, with only minor job modification for a short period of time. Un Kei also challenged the employer's claim that the client had not been fired, but had voluntarily quit. The administrative law judge found all of Un Kei's arguments persuasive and held that the client was eligible for benefits. The clinic also advised the client on her entitlement to State Disability Insurance disability benefits before and after delivery of the baby, and to Paid Family Leave benefits at the conclusion of her disability period.

WINNING UNEMPLOYMENT INSURANCE BENEFITS FOR A CLIENT WHO QUIT BECAUSE OF LABOR VIOLATIONS. Fall 2008 clinician Andrea Cianfrani won unemployment benefits for a store manager who quit because the employer was violating state labor laws. WERC's client notified the employer she was quitting because she was denied expense reimbursement, worked "off the clock" without pay, and regularly worked without legally required meal and rest breaks. The Employment Development Department (EDD) held that the client was not eligible because she had voluntarily quit her job without good cause. After a hearing at which Andrea questioned witnesses and presented a persuasive closing argument, the administrative law judge reversed the EDD, holding that there was good cause to quit because of the labor violations.

WERC CLINICIAN CONVINCES EMPLOYER TO RECTIFY VIOLATIONS OF THE PREGNANCY DISABILITY ACCOMMODATION LAW. When a Clinic client presented a doctor's note requesting accommodations for the duration of her pregnancy, her supervisor refused to provide the accommodations. When she asked for a transfer to a less strenuous position, her supervisor refused. Instead, he put her on unpaid medical leave and suggested that she should quit because she could not do her job as a motel housekeeper while she was pregnant. Fall 2008 WERC Clinician Brooke Miller acted promptly to restore the client to her job. She helped the client file a sex and pregnancy discrimination claim with the Department Fair Employment and Housing. Brooke then wrote a letter to the employer, explaining how its actions violated the law and demanding that the client be immediately accommodated. It is against the law in California to not accommodate or transfer an employee upon the advice of her doctor because of conditions related to her pregnancy. Due to Brooke's vigorous advocacy, our client has been transferred to a position that meets her medical restrictions and recovered all of her lost wages. In addition, Brooke got the employer to agree to improve training of their supervisors and managers in complying with all aspects of pregnancy disability accommodations law.

LABOR COMMISSIONER FINDS EVIDENCE OF RETALIATION. In Spring 2005, WERC Clinician Kay Tuazon represented a former massage therapist before the Labor Commissioner in an investigative conference. The client was terminated after she complained to her employer that she was not getting her legally mandated meal periods. Kay did a fantastic job in preparing her client for testimony and aggressively cross-examined the employer, who was represented by counsel. In November 2007, the Labor Commissioner issued a decision in favor of our client, finding that our client's evidence "provided irrefutable evidence" that the employer had retaliated. Immediately, the employer appealed the decision to the Director of the Department of Industrial Relations. Spring 2007 WERC Clinician Caraine Leon Guerrero wrote a response to the appeal, resulting in the decision being upheld.

CHALLENGING AN EMPLOYER'S FAILURE TO PROVIDE PROMISED MEDICAL BENEFITS. At the time of hire, WERC's client, a former sales associate, was erroneously told that she was not eligible for the employer's health insurance. Soon after that, she suffered an unforeseen life threatening injury, resulting in hospitalization and incurred thousands of dollars in medical bills. Subsequently, her employer realized that it had made a mistake in excluding her from health insurance. The employer began giving the client health insurance but refused to cover the medical bills. WERC clinician Claudia Vila successfully drafted a letter to the employer, after researching the intricate and complex laws under the Employee Retirement Income Security Act of 1974, ("ERISA"). Claudia argued that the employer's failure to notify the client of her health benefits at the onset of employment breached its fiduciary duty under ERISA. As a result of the letter, the employer agreed to pay for all medical expenses during the time the client was uninsured. Special thanks to ERISA expert Dan Feinberg for his guidance on this case.

IMMIGRANT WORKER FIGHTS RETALIATION AND INTIMIDATION. In the fall of 2006, WERC students Tammy Martinelli and Monica Jenkins represented a pregnant worker fired after filing minimum wage violations. On the eve of settlement agreement, immigration authorities detained our client's partner and father of her child based on a letter accusing them of egregious criminal conduct. WERC students Galen Lichtenstein and Yaromil Velez researched retaliation and tort claims against her employer. The employer settled the case due to the tireless advocacy of the students and WERC Graduate Law Fellow Nira Geevargis. Read San Francisco Chronicle article about one of the clinic's clients.

WERC faculty and students are working in collaboration with several organizations to address job re-entry barriers for people with past criminal convictions. Along with the National Employment Law Project, All of Us or None (an organization of formerly incarcerated individuals), the East Bay Community Law Center "Clean Slate" practice, and others, we organized a 2007 statewide convening on both employment and voting rights. The convening was generously funded by the Rosenberg Foundation. The collaborative group is also working on legislative proposals to expand job opportunities for the formerly incarcerated.

WERC Director, Professor Marci Seville, served on the advisory committee for a report on barriers to employment for formerly incarcerated women issued in December 2008 by the Thelton E. Henderson Center for Social Justice at the UC Berkeely School of Law. Read the report: A Higher Hurdle: Barriers to Employment for Formerly Incarcerated Women. For more information on the original research projects at the Center for Social justice, see http://www.law.berkeley.edu/1094.htm.

Clinic staff with Wins clients Yan Fang Mei and Li Qin
Yang Zhou, CPA organizer and Rosenberg program officer
Ellen Widess

THE WINS GARMENT SWEATSHOP CASE

In 2001, three San Francisco garment factories (Wins garment), shut their doors and declared bankruptcy after failing to pay wages to hundreds of immigrant workers. The Clinic joined with Sweatshop Watch and the Chinese Progressive Association to advocate for the workers. Through our collective advocacy, nearly $1 million was paid to the workers from a state garment fund established under the California Labor Code to compensate workers that cannot collect wages in situations like the Wins factory shutdown. After a lengthy FBI investigation, the U.S. Department of Justice also indicted the factory owners. In 2007, a federal jury convicted the owners of multiple counts of conspiracy, bankruptcy fraud, concealment of assets, and money laundering in the operation of the Wins factories. The owners were now serving federal prison terms on those convictions. Read information about the criminal case at http://www.usdoj.gov/usao/can/press/2007/2007_05_24_quan.conviction.press.html.

The Wins case is part of WERC's ongoing advocacy on behalf of garment workers.

WERC ISSUES REPORT ON ENFORCEMENT OF LAWS GOVERNING THE GARMENT INDUSTRY

The clinic was involved for several years in legislative and regulatory work that resulted in the passage of AB 633, the garment accountability bill, and the regulations implementing AB 633.

From 2004 through 2006, WERC participated in a collaborative project funded by the Racial Justice Collaborative, working with the Asian Pacific American Legal Center, Sweatshop Watch, the Asian Law Caucus, and the L.A. Garment Worker Center. In August 2005, the project issued a study entitled Reinforcing the Seams: Guaranteeing the Promise of California's Landmark Anti-Sweatshop Law. The study documents the successes and short-falls of what many had hoped would prove to be the country's strongest anti-sweatshop legislation, Assembly Bill 633 (AB 633), enacted in 1999. See the full report at http://apalc.org/pdffiles/SWReportFinal.pdf.

WAGE & HOUR: Cuadra v. Millan

In March 1998, the California Supreme Court issued a unanimous ruling in Cuadra v. Millan, a case brought by WERC, along with the Asian Law Caucus, California Rural Legal Assistance (CRLA) and other Bay Area organizations. The suit challenged the state Labor Commissioner's method of calculating back pay claims. The Supreme Court held that wage awards must be calculated back from the date the employee files the wage claim, not from the date that the Labor Commissioner eventually holds a hearing. As a result of this ruling, low wage workers throughout California are now receiving larger back pay awards when they file minimum wage and overtime claims.

UNEMPLOYMENT INSURANCE BENEFITS: Posada v. UIAB

WERC successfully challenged a decision of the Unemployment Insurance Appeals Board (UIAB) that found a group of over fifty Spanish speaking telemarketers at Sprint/La Conexion Familiar who were laid off without advance notice ineligible for unemployment benefits. The 1996 Superior Court decision held that workers could simultaneously receive unemployment benefits and payments from the employer for failure to comply with the 60 days advance notice of facility closure, required by the federal Worker Adjustment Retraining Notification (WARN) Act.

WERC later drafted legislation to codify the victory in the Posada case, and Unemployment Insurance Code Section 1265.1, now provides that workers are eligible for unemployment insurance benefits even if they simultaneously receive funds from their employer related to violation of the WARN Act.

WERC has drafted and testified on numerous legislative amendments to improve the rights of low wage workers under the state Labor Code. Among the successes are laws that create penalties when employers violate meal and break period entitlements, penalties when employers pay workers with checks that bounce, requirements that employer post bonds when appealing wage claims, and the right to use sick leave to care for family members.

SEXUAL HARASSMENT: Alfaro v. Tanimura & Antle

In 1999, the clinic represented Blanca Alfaro, a Latina farmworker, in a sexual harassment case against the Salinas based agricultural employer, Tanimura & Antle, who terminated Ms. Alfaro after she complained of egregious sexual harassment. With the Equal Employment Opportunity Commission, the California Rural Legal Assistance, and WERC representing Ms. Alfaro and others, the parties reached a landmark settlement agreement providing for broad-based injunction relief and $1.85 million in damages for our client and other applicants or employees subjected to sexual harassment. http://www.eeoc.gov/press/2-23-99.html

EQUAL PAY CLASS ACTION: Stiltz v. Beverages & More

In 1998 WERC successfully settled a class action Equal Pay Act and Title VII wage discrimination suit, brought on behalf of entry level sales clerks against a large beverage retailer. The consent decree provided for extensive injunctive relief, back pay and liquidated damages for those women paid lower wages than their male counterparts.

GENDER AND RACE DISCRIMINATION: Adams v. Pinole Point Steel

WERC represented African American and female employees in a class action suit for gender and race discrimination in hiring and racial harassment at three East Bay steel processing plants. The hiring claims were settled in 1996 with a consent decree providing for an extensive injunctive relief and a classwide monetary settlement of $1.9 million.

WERC participates actively as a "friend of the court" or amicus curiae in cases of importance to California workers. These cases include:

Chamber of Commerce of the United States of America v. Edmondson, Case Nos. 08-6127, 08-6128 (10th Cir. 2008)

Arizona Contractors Association, Inc. v. Candelaria, 2008 U.S. App. LEXIS 19723 (9th Cir. 2008)

Olson v. Automobile Club of Southern California, 42 Cal. 4th 1142 (2008)

Murphy v. Kenneth Cole Productions, Inc., 40 Cal. 4th 1094 (2007)

Brinker Rest. Corp. v. Superior Court, 2007 Cal. App. Unpub. LEXIS 8233 2007

Yanowitz v. L'Oreal USA, Inc., 36 Cal. 4th 1028 (2005)

Reynolds v. Bement, 36 Cal. 4th 1075 (2005)

Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004)

Beck v. Boeing CO., 60 Fed. Appx. 38; 2003 U.S. App. LEXIS 3619 (9th Cir. 2003)

Smith v. Rae-Venter Law Group, 29 Cal. 4th 345 (2002)

Cummings v. Automobile Club Of Southern Calif., 2002 Cal. App. Unpub. LEXIS 8723 2002

Kohler v. Inter-Tel Techs., 244 F.3d 1167 9th cir 2001

Post v. Palo/Haklar & Assocs., 23 Cal. 4th 942 (2000)

Cortez v. Purolator Air Filtration Prods. Co23 Cal. 4th 163 (2000)

Morillion v. Royal Packing Co., 22 Cal. 4th 575 (2000)

The Clinic often works in collaboration with other legal and community-based groups. We recognize and honor the work of:

• California Rural Legal Assistance http://www.crla.org/ - WERC's co-counsel in Cuadra v. Millan and Alfaro v. Tanamura & Antle
• Sweatshop Watch, the Asian Pacific American Law Center (APALC) and the LA Garment Workers Center, our partners in the Garment Workers Collaborative, (funded by the Racial Justice Collaborative)
• Chinese Progressive Association Community - WERC's community partner in the Wins case http://www.cpasf.org
• Young Workers United, refers low wage workers to the clinic for representation by our students http://www.youngworkersunited.org/
• Equal Rights Advocates, co-counsel in Stiltz v. Beverages and More http://www.equalrights.org/
• All of Us or None, the National Employment Law Project/Second Chance Labor Project, and the East Bay Community Law Center Clean Slate Project - WERC's partners in advocacy on the rights of formerly incarcerated job applicants and employees
• http://www.nelp.org/nwp/second_chance_labor_project/index.cfm
• http://www.ebclc.org/
• http://www.prisonerswithchildren.org/news/banthebox.htm
• The Bay Area Workers Rights Collaborative. With a major commitment of cy pres support made available by William Audet and the law firm of Alexander, Hawes & Audet, WERC helped launch a four-agency collaborative providing workers' rights clinics and other coordinated services throughout the Bay Area. The other partners include the Legal Aid Society-Employment Law Center, the East Bay Community Law Center and the Katharine & George Alexander Community Law Center at the Santa Clara University School of Law.
• http://www.ebclc.org/
• http://www.scu.edu/law/kgaclc/
• http://www.las-elc.org/
• Asian Law Caucus - co-counsel in the Wins Garment case http://www.asianlawcaucus.org/site/alc_dev/
• Boxer and Gerson http://www.boxerlaw.com/attorneys.html
• Siegel and Lewitter http://www.sl-employmentlaw.com/
• Dickson Ross http://www.dicksonross.com/
• Law Office of Judith Kurtz