Court Certifies Class of Almost 100 Sexual Harassment Survivors Seeking Justice From McDonald’s Restaurant Where They Worked

On December 29, 2021, the United States District Court for the Western District of Michigan certified a class of 95 women who allege they all suffered sexual harassment at the hands of the same manager while employed at a franchised McDonald’s restaurant.  The lawsuit, Ries v. McDonald’s, alleges a years-long pattern of unchecked sexual harassment at the McDonald’s restaurant, including near-constant physical and verbal harassment that three General Managers witnessed on multiple occasions.  Despite observing an unrelenting stream of sexual harassment by one of their managers and receiving multiple verbal complaints from employees, the General Managers and their superiors did not take action to end the harassment and protect their employees.  The members of the class range in age and include many women who were in high school during the time they worked at the McDonald’s restaurant, with some class members who were as young as 16 when they were harassed.

The Court found that “[g]iven the consistency, frequency, severity, and visibility of [the manager’s] conduct according to Plaintiffs’ evidence, there is sufficient overlap between the class members’ experiences to render the existence of an objectively hostile work environment one that can be resolved on a class-wide basis.”  The Court observed, “The class members worked in the same restaurant, in the same confined space, and experienced direct or indirect harassment by the same individual whose conduct was apparently consistent and unrelenting over an extended period of time,” and continued, “Defendants were consistent in their response to [the manager’s] behavior.  They apparently did almost nothing about it until March 2019.”

The Court’s certification of the class in Ries represents an enormous victory for the class members, as many would have financial difficulty pursuing individual claims against the McDonald’s restaurant.  The decision also shows the power of women’s collective voices in speaking out against harassment.  The  court’s ruling means that all 95 women may proceed together to trial against the McDonald’s franchise.

The Court appointed Altshuler Berzon LLP as Class Counsel, along with co-counsel from the ACLU Women’s Rights Project and McKnight, Canzano, Smith, Radtke & Brault P.C.

A copy of the Court’s order granting class certification can be found here.

Altshuler Berzon LLP Files Union Amicus Brief to the Supreme Court Supporting Stay of Injunction Against CMS Healthcare Industry Vaccination Regulation

On Wednesday, December 22, 2021, the Service Employees International Union (SEIU), the American Federation of Teachers (AFT), and the American Federation of State, County, and Municipal Employees (AFSCME) filed amicus curiae briefs in two cases in the United States Supreme Court: Biden v. Missouri, No. 21A240, and Becerra v. Louisiana, No. 21A241. In these cases, two district courts issued injunctions preventing the Center for Medicare and Medicaid Services (CMS) from enforcing a new regulation requiring the staff of all healthcare providers participating in Medicare or Medicaid to be vaccinated against Covid-19. The federal government has asked the Supreme Court to stay these injunctions pending appeal, and SEIU, AFT, and AFSCME support the federal government’s stay applications. As the Unions argue, under-vaccination poses severe risks to healthcare workers as well as patients, and CMS’s rule is critical for ensuring that healthcare facilities like hospitals and nursing homes can function safely and effectively in the face of an ongoing pandemic. The Unions’ briefs highlight the stories of two SEIU members who work in nursing homes on the frontlines of the fight against Covid-19 and have seen the need for staff vaccination firsthand. The Unions’ briefs also demonstrate that, contrary to the conclusion reached by the lower courts, CMS has clear statutory authority to issue the regulation, which is a straightforward health and safety standard for the Medicare and Medicaid programs and does not implicate the Supreme Court’s “major questions” precedents.

The amicus briefs can be found here and here.

Altshuler Berzon LLP is counsel of record for the Unions as amici curiae.

Altshuler Berzon LLP Partner Named a “Top 100” California Attorney

Michael Rubin honored for fifth year in a row

September 15, 2021 – California’s legal newspaper, the “Daily Journal,” today named Altshuler Berzon LLP partner Michael Rubin as one of California’s “Top 100 Attorneys.” This is the fifth straight year the “Daily Journal” has named Michael to the Top 100, and it has regularly named him one of California’s “Top 75 Labor and Employment Attorneys” as well.

The published profile focused on Michael’s work this past year on two major lawsuits seeking to reform California’s broken unemployment insurance system: In re Bank of America California Unemployment Benefits Litigation, MDL Case No. 21-MD-02992-LAB-MSB, and Center for Workers’ Rights v. Employment Development Department, Alameda County Superior Ct. No. RG21106525.

In the Bank of America case, Altshuler Berzon LLP attorneys Michael Rubin, Stacey Leyton, Connie Chan, and Matt Murray, in conjunction with co-counsel at Cotchett, Pitre & McCarthy, LLP, obtained a preliminary injunction requiring the Bank to cease freezing the UI accounts of hundreds of thousands of Californians who had complained to the Bank about unauthorized transactions made on their Bank-issued UI benefit debit card accounts. In the EDD case, Altshuler Berzon attorneys Michael Rubin and Amanda Lynch, in conjunction with co-counsel at the Center for Workers’ Rights, negotiated a settlement that requires EDD to promptly pay UI benefits to 300,000 UI claimants in “continuing claims” status whose UI payments had been delayed, often for months, as a result of unjustified administrative delays.

Altshuler Berzon LLP Welcomes 2021 Fall Law Clerks

Altshuler Berzon LLP is pleased to welcome two 2021 Fall Law Clerks: Madelyn O’Kelley-Bangsberg (Northeastern University School of Law) and Tiffany Deguzman (University of California, Berkeley, School of Law). We also congratulate Tiffany on accepting post-graduation judicial clerkships with Judge Ronald M. Gould of the U.S. Court of Appeals for the Ninth Circuit and with Judge Dolly M. Gee of the Central District of California.

The law firm typically hires five or six summer associates each year, as well as school-year law clerks on a case-by-case basis. Information about recruiting is available by clicking here.

Altshuler Berzon LLP Welcomes New Attorneys

Altshuler Berzon LLP is pleased to welcome five attorneys who will be joining the firm in the fall of 2021: Annie Wanless, who is joining the firm as a Law Fellow; Christine Salazar, Robin Tholin, and Jonathan Rosenthal, who are joining the firm as Associates; and Nicole Collins, who is joining the firm as the Altshuler Berzon-NRDC Joint Fellow.

Annie Wanless is a graduate of Stanford Law School and will be clerking for Judge Richard Paez of the U.S. Court of Appeals for the Ninth Circuit following her fellowship.

Christine Salazar is a graduate of Northeastern University School of Law and clerked for Judge Yvette Kane of the U.S. District Court for the Middle District of Pennsylvania.

Robin Tholin is a graduate of Harvard Law School and clerked for Judge Marsha Berzon of the U.S. Court of Appeals for the Ninth Circuit.

Jonathan Rosenthal is a graduate of University of California, Berkeley School of Law and clerked for Judge Patricia A. Millett of the U.S. Court of Appeals for the D.C. Circuit and for Judge Vince G. Chhabria of the U.S. District Court for the Northern District of California.

Nicole Collins is a graduate of Stanford Law School and clerked for Judge Mary H. Murguia of the U.S. Court of Appeals for the Ninth Circuit.

Thank you to our Altshuler Berzon LLP 2021 Summer Associates

Altshuler Berzon LLP thanks its 2021 Summer Associates for their extraordinary work this summer: Amanda Le (University of California, Irvine School of Law), Andrew Toney-Noland (Stanford Law School), Edgar Melgar (Yale Law School), Isaac Green (Harvard Law School), Michael Migiel-Schwartz (Harvard Law School), Nina Oishi (Yale Law School), and Simon Jacobs (University of Chicago Law School).

We know they will go on to be superb lawyers and wish them the very best as they return to their final year of law school.  We also congratulate them on accepting the following post-graduation judicial clerkships:

Nina will be clerking for Judge Robert E. Bacharach of the U.S. Court of Appeals for the Tenth Circuit.

Edgar Melgar will be clerking for Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit.

Isaac Green will be clerking for Judge Alison J. Nathan of the Southern District of New York and for Judge David J. Barron of the U.S. Court of Appeals for the First Circuit.

Simon Jacobs will be clerking for Justice Scott L. Kafker of the Massachusetts Supreme Judicial Court.

The law firm typically hires five or six summer associates each year. At times, we also have clerking opportunities available during the school year. Information about recruiting is available by clicking here.

Court Rules Proposition 22 Unconstitutional

The Alameda County Superior Court issued a decision on August 20 holding that California’s Proposition 22 conflicts with the California Constitution and is invalid in its entirety.  The case, Castellanos v.  California, No. RG21088725, was filed by SEIU, SEIU California, and four individual drivers and consumers after gig economy companies funded a $225 million initiative campaign that convinced the voters to exempt drivers who work for transportation and delivery network companies like Uber, Lyft, and DoorDash (who the proposition calls “app-based drivers”) from California’s employment law protections.

The court held Proposition 22 unconstitutional for three reasons.  First, by excluding “app-based drivers” from the state’s workers’ compensation system and forbidding the state legislature from including them in the future, Proposition 22 impermissibly interferes with the legislature’s “plenary power” over the workers’ compensation system under Article XIV, Section 4 of the California Constitution.  Second, although Proposition 22 lacks any substantive provisions addressing collective bargaining by “app-based drivers,” it impermissibly deems any legislation authorizing representation of app-based drivers an “amendment” to Proposition 22 that may be enacted only by a seven-eighths vote of each house of the state legislature.  A statutory initiative cannot limit future legislation that does not actually amend the substantive terms of an initiative.  And third, Proposition 22 violates the requirement, under Article II, Section 8(d) of the California Constitution, that initiative statutes be “limited to a single subject.”  The Court concluded that Proposition 22’s limitation of drivers’ collective bargaining rights “appears only to protect the economic interests of the network companies in having a divided, ununionized workforce” and was “utterly unrelated to” the Proposition’s “stated common purpose” of “protecting the opportunity for Californians to drive their cars on an independent contract basis, to provide those drivers with certain minimum welfare standards, and to set minimum consumer protection and safety standards to protect the public.”

The petitioners in the case are represented by Altshuler Berzon LLP, Olson Remcho, LLP, and the SEIU legal department.   A copy of the Superior Court’s decision is available here.  News coverage of the decision can be found here and here.

Workers at Oakland McDonald’s Restaurant Reach Precedent-Setting Settlement

August 11, 2021 – When a COVID-19 outbreak at the Telegraph Ave. McDonald’s restaurant in Oakland threatened workers and their families, four workers filed a public nuisance lawsuit in Alameda County Superior Court and sought a temporary restraining order (TRO) to ensure that the restaurant implemented necessary safety measures.  The court granted plaintiffs’ requested relief and issued a TRO on June 22, 2020; later continuing the TRO’s provisions on July 9, 2020, and converting the TRO to a preliminary injunction on August 13, 2020.  In late July 2021, the parties reached a settlement agreement that resolves this litigation.  The settlement continues the workplace safety measures for up to another year and establishes a health and safety committee.  The committee, which will include the restaurant owner-operator, the restaurant’s general manager, and three crew members on a rotating basis, will meet on a monthly basis to discuss the protective measures required by the settlement, as well as any other measures that may be necessary to prevent the spread of COVID-19 in the workplace.  The committee will provide workers with a voice in addressing the evolving COVID-19 pandemic and the need to ensure safe working conditions.  The plaintiffs issued this statement regarding the historic settlement.  For press coverage of the settlement, see here and here.

Settlement with California’s Employment Development Department Requires Immediate Payments to Hundreds of Thousands of Unemployed Californians

EDD agrees to sweeping changes in how it handles continuing unemployment insurance claims

July 23, 2021 – In a groundbreaking settlement negotiated by Altshuler Berzon LLP on behalf of the Center for Workers’ Rights, California’s Employment Development Department has agreed to make significant changes in how it processes unemployment insurance claims and to immediately pay millions of dollars in conditional UI benefits to unemployed Californians, many of whom have been waiting months to receive those benefits. The affected claimants were previously approved to receive unemployment benefits, but had their payments suspended without explanation while EDD has been working through its huge backlog of eligibility determinations.

EDD’s announcement follows months of negotiations, which culminated in the filing of a class action complaint for injunctive relief and a settlement that now awaits court approval – although EDD agreed to begin implementation immediately, without waiting for further court order. The complaint alleges that EDD’s prolonged delays in providing payment to unemployment insurance claimants in continuing claims status violate the Social Security Act, which requires state unemployment insurance programs to maintain “methods of administration … reasonably calculated to insure full payment of unemployment compensation when due.” The settlement requires EDD to provide conditional payment to unemployment insurance claimants in continuing claims status when EDD has failed to make a determination regarding the claimant’s eligibility by the end of the week following the week that EDD first became aware of the eligibility issue.  The settlement also requires EDD to notify those claimants that the payments they are receiving are conditional pending the result of EDD’s investigation and to inform those claimants of the basis for EDD’s eligibility concerns and how the claimant can respond to those concerns.  More information about the agreement is available here and here. The complaint, entitled Center for Workers’ Rights v. EDD et al., is pending in Alameda County Superior Court and can be read here.

Altshuler Berzon LLP attorneys Michael Rubin and Amanda Lynch represent the Center for Workers’ Rights in this case, assisted by summer associate Nina Oishi. The complaint, entitled Center for Workers’ Rights v. EDD et al., is pending in Alameda County Superior Court.

Court Refuses to Toss Case Against McDonald’s for Sexual Harassment at 100 Corporate Operated Restaurants in Florida

July 20, 2021 – In April 2020, Altshuler Berzon LLP, with co-counsel, filed a putative class action lawsuit against McDonald’s, on behalf of all women who work at McDonald’s corporate owned and operated restaurants in Florida.  The lawsuit, Fairley et al. v. McDonald’s Corp., et al.,  alleges a pattern of unchecked sexual harassment at 100 restaurants in Florida.  In particular, the lawsuit alleges that McDonald’s does not have sufficient policies, procedures, and training to prevent sex harassment.  It also alleges that McDonald’s fails to train low level managers – to whom reports of sex harassment are most frequently made or who may actually observe the harassment while performing their job – as to what to do when they receive a report of harassment or observe harassment themselves.  McDonald’s filed a motion to dismiss the case, and to strike the class action allegations.  The Court denied that motion, finding that Plaintiffs had alleged sufficient facts to move forward on all of their claims on behalf of all women workers at McDonald’s corporate owned and operated restaurants in Florida.  The Plaintiffs are seeking $500 million in class-wide damages.