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Colorado federal court decision on age discrimination may apply in California

A federal court in Colorado has allowed a former worker to move forward with an age discrimination claim, in spite of the fact that he had signed a release and severance agreement when he lost his job during company downsizing.

In Foster v. Mountain Coal Company, LLC., the court disqualified the exemption of the age discrimination claim because it did not completely meet the requirements of the Older Workers’ Benefit Protection Act (OWBPA).

The court focused on the section of the OWBPA that the company did not meet: the “knowing and voluntary” requirement. The employer did not properly advise the worker to discuss the agreement with an attorney before signing it. The OWPBA is intended to guarantee that older workers have every chance to make informed choices about signing or not signing a release that includes an age discrimination claim.

In this case, the agreement stated that the plaintiff was voluntarily signing it, completely understanding its contents after he had the chance to consult with a legal advisor. But the past tense language meant the plaintiff had been given an opportunity — but was not specifically advised to act on that opportunity — to discuss the agreement with an attorney. The agreement should have clearly stated the plaintiff must be advised to talk to a lawyer before signing anything.

Across the United States, more cases of severance agreements that waive employee rights and are illegally couched in broad, vague terminology have been surfacing in the last five years. The EEOC has also been filing more cases of this nature. And these rulings could all become applicable in California.

Toyota lost its case in Oklahoma in a battle over a sudden-acceleration accident. Could losses follow in California?

Toyota won its first three cases in the class-action lawsuit brought by vehicle owners who were injured or died in serious accidents when their vehicle escaped control. Then, a verdict in Oklahoma took the wind out of its sails.

In an attempt to manage the sheer number of cases brought against it, Toyota has agreed to pay a $1.6 billion settlement.

Even though Toyota has offered a settlement, hundreds of cases, both wrongful death lawsuits and personal injury cases, are still pending. Most of these legal battles have been consolidated in California courts. However, with the decision to proceed to a settlement, litigation is suspended. In January, a hearing began in the United States District Court for the Central District of California in Santa Ana, California. Settlement conferences began in February.

Since 2009, the automaker has recalled over 11 million Lexus and Toyota vehicles for stuck accelerators and other issues. The large scale of the recall and the number of people injured or dead as a result of company negligence prompted Toyota to offer the settlement following its Oklahoma loss. If the company pursued its court battles, it would need to prove that a vehicle defect did not cause sudden acceleration in each. That would prove difficult, as the installation of Toyota’s ETCS-I system, which controlled the engine throttle electronically (not manually) caused a staggering number of accidents.

If you have been involved in a situation like this one, speak to a personal injury attorney about your rights. A major auto manufacturer may be involved, but that does not mean you cannot win a verdict in your favor.

Sexual assault disproportionately common against immigrant laborers

When unregistered immigrants are sexually assaulted, they are often loath to report their attackers. Many victims depend upon their perpetrators for employment and livelihood. In some cases, the aggressor threatens to report a victim to immigration authorities if he or she does not comply with sexual demands. Workers trying to support their families do not want to be deported, so they stay silent.

Every day in Kern County, California and in other parts of the United States, female workers are attacked. One abusive foreman repeatedly assaulted a young mother of four at their place of work, appearing behind her and fondling her breasts and back without her consent. Eventually, he began to isolate her in a vineyard to pick grapes alone and to approach her there. She told the foreman that she was not interested in his advances, but he indicated that if she said anything to anyone about them, he would report her and get her deported.

The foreman escalated his advances in the vineyard. His victim stayed silent, but the physical, mental and emotional upheaval in her life took its toll. When he plunged his hands down into her underwear to grab her buttocks, she finally reported him. The main contractor and company supervisor ultimately decided it was only her word against the foreman’s, and they claimed they could do nothing. She quit her job and locked herself in the house, afraid to go to work anywhere else for fear of another assault.

According to Human Rights Watch, thousands of girls and women face a high risk of sexual harassment and sexual violence in workplaces where their employers do not protect them. In some workplaces, men have power over undocumented workers. Rape is a common event.

To date, no criminal charges have been filed against any company or foreman for sexual harassment in Kern County, but one of the largest vineyards there has agreed to settle a sexual harassment and retaliation suit and to make changes to company policies. One supervisor in San Benito County has been convicted for sexual abuse. A case is pending in Madera County, and charges have been laid for two counts of rape in Chowchilla.

Sexual harassment is never legal or morally permissible. If it has happened to you, there are support systems in place to help. Contact a knowledgeable harassment lawyer to assist you in standing up for your rights.

Honesty and Ethics in Business Law: Take Care When Filing a New Corporation

When you start a new company, there is more to consider than the filing you choose for the corporation. Your company must take great care to file honestly and ethically.

The case of Santa Ana Corinthian Colleges presents an example of exactly the opposite behavior. In a lawsuit filed by the Attorney General of California, the Colleges have been charged with misleading investors by means of securities fraud, creating false and predatory advertising aimed at low-income students and unlawfully using military logos that gave the impression that the Colleges were affiliated with the United States Armed Forces.
Santa Ana Corinthian Colleges operates 111 campus locations in North America, with approximately one-third of its 81,000 students taking their courses in California. The Colleges aim their advertisements at veterans, low-income individuals and single mothers. Most of the College’s income is derived from tuition, which is funded by the federal loans obtained by its students.

Allegedly, specific, attractive classes were advertised, but when prospective students came to tour the campus, they were told that the program in which they were interested was not available. The Colleges are also accused of placing military logos on websites and direct mail marketing to give the false impression that the school was approved by the U.S. Armed Forces, a distinct violation of California law. Furthermore, the company allegedly committed securities fraud, offering investors falsified information that claimed a 100 percent job placement rate.

The lesson in this debacle? Take care with more than the filing setup of your company. Stay on the right side of the law ethically and legally, no matter the kind of corporation for which you file. The consequences of misleading state regulatory officials and your potential customers can be severe.