Case Studies – Employment Law and Litigation for Management
Parton & Sell has many years of collective experience in employment litigation. We have represented a variety of businesses, including apartment complex owners from unpaid overtime claims, construction companies against unlawful termination, and corporations needing to enforce employee non-compete agreements. Our proven track record of favorable results for our clients speaks for itself.
Wage and Hour Claims
- Two tenants of our client’s apartment complex provided security services for the complex. After 3 years, they sued, claiming unpaid overtime in excess of $150,000. They claimed that, when they were not at their regular work (as police officers), they were always “on call” at the complex. The client enforced a binding arbitration clause in their employment agreement. At the arbitration, we defended using timesheets the plaintiffs had submitted and evidence that they were not restricted to the property or in their ordinary activities except for specific limited time periods each day. The arbitrator, a retired federal judge, awarded a total of $548 combined to the plaintiffs.
- Following her termination for poor performance, our law firm client’s paralegal sued for unpaid overtime, using billing records to prove the hours she had worked. The client had misclassified her as exempt from overtime and was clearly liable. In addition, the client had paid her a bonus for each hour above 2,000 hours per year that she billed. She had earned significant bonuses which, by law, were added to her total compensation to determine her “base rate” for calculation of overtime. We were able to negotiate a settlement before answering the complaint for two thirds of the paralegal’s demand of $240,000.
- Our client had failed to pay overtime for several years and had not paid otherwise exempt managers on a “salary basis” (thereby making them non-exempt). A former employee, who had been fired for absenteeism, filed a class action law suit on behalf of 35 current and former employees alleging failure to pay overtime, failure to provide meal and rest breaks, falsification of time records, failure to provide accurate pay stubs, and other claims. Preliminary analysis indicated a potential liability for our client of $600,000 plus the plaintiff’s attorney’s fees. The client could not afford to litigate the claims and would have been forced out of business if plaintiff could prove anything other than the overtime claim. We persuaded plaintiff’s counsel to defer formal discovery in favor of informal exchange of information followed by a mediation and reached a settlement of the entire action, including the attorneys’ fees claim, of $175,000.
Discrimination, Harassment and Wrongful Termination Claims
- Our clients were an apartment high-rise management company and its General Manager. Plaintiff was a unionized Hispanic mechanical engineer. He did not get along with the General Manager. He sued claiming he was subjected to a hostile work environment and had been a victim of disparate treatment due to his ethnicity. The General Manager had allegedly told a meeting of all engineers while looking at plaintiff: “And some of you are being very well compensated for working here. And you are not being paid in pesos either.” Plaintiff claimed this had been followed, over the ensuing 18 months, with a series of unfair and hostile management actions. We won a summary judgment for our client. We then successfully persuaded the court to award our client $127,000 in attorneys’ fees because plaintiff had pursued the suit although he knew it was frivolous.
- Our client, a health club, hired a male massage therapist. Within weeks, 3 women – 2 employees and one patron – complained that he had touched them sexually during private massage sessions. The club first warned and then terminated the therapist. They sued the club and the manager claiming sexual battery, false imprisonment, negligent hiring and supervision and numerous other causes of action. They also sought punitive damages based on a claim that our client ratified the therapist’s alleged conduct by not terminating him immediately upon receipt of the first complaint. We won summary adjudication of the punitive damage claim which led to a settlement on the eve of trial for 5% of the plaintiffs’ original settlement demand.
- Our client was a heavy construction company. It hired an African-American operating engineer out of the union hiring hall to operate a bulldozer at a highway construction site. The operator was unskilled, failed to follow direction, and nearly caused a catastrophic injury accident. After a week he was terminated. The operator persuaded the EEOC that his termination had been racially motivated. The EEOC sued our client on the operator’s behalf seeking substantial damages and a permanent injunction. After thorough investigation, we established that the operator was a habitual plaintiff who had once assaulted a juror after losing a jury trial. We also proved through discovery that no discrimination had occurred. Faced with the possibility that it might be required to pay the client’s attorneys’ fees, the EEOC dropped its case.
- Another health club client was sued by a manager who claimed he was the victim of homophobic harassment and discrimination by the club’s General Manager, was refused accommodation for his disability (dyslexia), and ultimately was terminated in retaliation for his complaints. He alleged that senior officers of the company had ratified these acts. Confronted with evidence that one of his co-managers, who he had claimed would support his claims, was a lesbian who had been promoted by the same GM, he agreed to a confidential settlement representing a fraction of what he had sought and a fraction of the anticipated costs of defense.
Accommodation of Disability
- We defeated a “failure to accommodate” disability/wrongful termination claim by a supervisor for an emergency oil spill response team who was an alcoholic. Our client had provided the employee several leaves of absence for in-patient treatment in rehabilitation facilities. When he continued his unreliable performance, he was terminated. We persuaded the court that, while alcoholism is a disability, absenteeism caused by the alcoholism is misconduct which may be disciplined. The court further agreed that reasonable accommodation had been provided.
- We represented a Bay Area university against charges of race and disability discrimination by an African-American adjunct professor passed over for tenure and then terminated. He claimed that the university failed to accommodate his depression by providing clerical assistance in the preparation of the portfolio supporting his tenure application. We won summary judgment of that claim. On the race claim, we established that a professor who had been rehired was not in a comparable position and that his termination was amply justified by his poor performance. We also defeated his attorney’s attempt to require the university to search its entire email and computer system in response to plaintiff’s discovery demands.
Intellectual Property and Trade Secrets Claims
- Our client, a national company based outside California, was preemptively sued in California by a competitor which had hired one of our client’s lead sales persons. The suit was an attempt to take advantage of California’s strong public policy against non-compete clauses in employment agreements. The clause was enforceable in the state in which the company and former employee had signed their employment agreement. We successfully defeated the California suit while our client successfully enforced the contract in the state of origin.
- In an alleged misappropriation of trade secret action, we represented a salesman and his new employer. In obtaining a Temporary Restraining Order, the salesman’s former employer accused the salesman of stealing its “customer list”, unlawfully contacting former clients, and defaming the former employer. In a matter of weeks, we convinced the Court to dissolve the TRO and defeated the former employer’s application for a Preliminary Injunction on the grounds that the former employer failed to establish the likelihood of success on the merits and that the potential harm suffered by our clients would be greater than the harm suffered by the former employer if the Preliminary injunction were not granted.
- A salesman for a national equipment rental company was sued by his former employer after he went to work for a competitor. The former employer claimed our client used confidential compensation information to lure employees from his former employer to his new employer. The former employer also claimed that our client had stolen or used confidential pricing information to compete against them. This second claim stemmed from the fact that when a former co-worker of our client left the same employer around the same time, he emailed to his home computer confidential information belonging to the former employer. The former employer accused our client of doing the same thing when in fact he had not taken so much as a paper clip when he resigned. In the end, we were able to negotiate a favorable resolution for our client and convinced his new employer to pay for the lion’s share of the attorneys’ fees and costs incurred.