Chad T. Wishchuk, Partner at Finch, Thornton & Baird

Chad T. Wishchuk, Partner

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Chad T. Wishchuk is a partner in the firm. Since 1996, he has represented management in labor, employment, and construction matters, including the following: employment discrimination, harassment, retaliation, and wrongful discharge litigation; wage and hour litigation, including meal, rest break, overtime, and class action, Private Attorney General Act (PAGA), California Labor Code, and Fair Labor Standards Act (FLSA) claims; state and federal prevailing wage cases, including Davis-Bacon matters; apprenticeship matters; federal OSHA and Cal/OSHA cases; United States Department of Labor, Office of Federal Contract Compliance Programs (OFCCP) compliance audits; employment tax audits by the California Employment Development Department (EDD); Section 132a and serious and willful misconduct cases before the California Workers’ Compensation Appeals Board (WCAB); misappropriation of trade secret cases; and other state, federal, and local compliance matters.

Mr. Wishchuk’s labor law experience includes representing management in the administration of collective bargaining and project labor agreements, union election campaigns, and unfair labor practice proceedings before the National Labor Relations Board (NLRB). Prior to joining the firm, Mr. Wishchuk practiced law with a Philadelphia-based firm specializing in the fields of labor and employment, and construction law, where he gained significant experience representing management in a predominantly union construction arena. Mr. Wishchuk has significant experience with the California Department of Industrial Relations, the Division of Labor Standards Enforcement, and state approved labor compliance programs, as well as the federal Department of Labor and the NLRB, including administrative hearings, arbitrations, and judge and jury trials. Mr. Wishchuk has served as the Chairman on the Human Resources Committee of the San Diego Chapter of the Associated General Contractors of America, and provides seminars on various employment law issues, including sexual harassment training and education.

Mr. Wishchuk is admitted to practice before the California, Pennsylvania, and New Jersey state courts, before the United States Court of Appeals for the Third, Ninth, and District of Columbia Circuits, the United States District Court for the Eastern District of Pennsylvania, the United States District Court for the District of New Jersey, and the United States District Courts for the Southern, Central, and Northern Districts of California. He is a member of the State Bar of California and Pennsylvania, the American Bar Association, and the San Diego County Bar Association. Mr. Wishchuk received his juris doctor, with honors, from Temple University School of Law in Philadelphia, Pennsylvania, and his Bachelor of Arts degree in Government from the University of Notre Dame. He was named San Diego Super Lawyer in 2015, 2016 and 2017; and a Top 25 San Diego Labor and Employment Attorney in 2007 and 2008.

Representative Experience

Defense Of Employment Disability Discrimination Lawsuit

The firm defended an international manufacturer of environmental and construction specialty products in an employment discrimination lawsuit filed by a former employee. The employee brought claims for disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and wrongful termination under the California Fair Employment and Housing Act (“FEHA”). He alleged he was fired due to back and neck injuries he sustained in an automobile accident even though he was able to perform his job with reasonable accommodations. The firm removed the case to federal court and discovered the employee was simultaneously pursuing a separate personal injury lawsuit alleging he was so injured he could no longer work. The firm went on the offensive, aggressively arguing malicious prosecution. The employee sought over $300,000 in lost wages, punitive damages, and attorneys’ fees. In the end, the firm successfully negotiated a settlement for a tiny fraction of the amount demanded by the employee, saving the client valuable costs and time.

Complete Defense Of Labor Code Section 98 Wage Claims At A California Labor Commissioner “Berman Hearing” State Case Number 10-88772EA

The firm represented TXL, Inc., an oil change business with operations in Brawley, California. The plaintiff, an oil change technician, alleged overtime, meal and rest break, and related claims, including for liquidated damages under Labor Code section 1194.2, waiting time penalties, and interest. A hearing was held before the Labor Commissioner. The Labor Commissioner ruled in favor of TXL on every single claim, ordering that the plaintiff take nothing. A copy of the Order, Decision Or Award Of The Labor Commissioner can be found at this link.

Complete Defense Of A Prevailing Wage Forfeiture Action

The firm represented a general contractor and its bonding company on a public works school project in Southern California. The labor compliance program of the school district alleged that a subcontractor on the project willfully violated the California Prevailing Wage Law, by misclassification, under-reporting, and underpayment of prevailing wages and overtime. A notice of withholding of contract payments was issued against the general contractor and subcontractor for nearly a quarter of a million dollars. The firm asserted the innocent general contract “safe harbor” defense under the California Labor Code, as well as a statute of limitations defense under Labor Code section 1741. Following our pre-hearing motion to the California Director of Industrial Relations, the entire case was withdrawn and dismissed, resulting in zero dollars of liability for our client and surety.

Complete Defense Of OSHA Citation

The firm’s client, an electrical contractor on a commercial hotel renovation project, was cited by OSHA for an alleged failure to properly deenergize and label circuits in an electrical panel. The firm successfully argued that the citation was improper, including because the circuits in questions were not known to the electrical contractor because they did not appear in contract drawings or specifications and were under the exclusive control of the project owner. As a result of the firm’s arguments, OSHA vacated the citation following an early informal conference, with no penalties assessed against the firm’s client.

In The Matter Of The Request For Review of ASM Affiliates, Inc. DIR Case No. 14-0418-PWH

In the first case of its kind under the California prevailing wage law, the firm successfully defended a Civil Wage and Penalty Assessment issued by the California Labor Commissioner against a cultural resources management firm (“CRM”). The Labor Commissioner sought over $200,000 in back wages, penalties and liquidated damages relating to archaeological monitoring and testing services that the CRM firm had performed prior to and during the construction of a rail improvement project. The firm successfully argued that none of archaeological work was covered by the California prevailing wage law because such work was not work performed in “execution of the [public works construction] contract.” After extensive briefing and a hearing, the Director of Industrial relations agreed with the firm and found that the archeological work performed by the firm’s client was not covered by the prevailing wage law. As a result, the entire assessment was dismissed. A copy of the Director’s decisions can be found here.

The Firm Prevented A Former Corporate Officer Of A Client From Misappropriating Trade Secrets And Other Proprietary Business Information

The firm represented a company against the company’s former high-ranking officer and other former employees who resigned abruptly to form a competing business. These former employees used removable hard drives, flash drives, and jump drives to copy sensitive company information and customer lists in violation of the law and non-solicitation and non-compete obligations. The firm filed a lawsuit alleging information theft, trade secret misappropriation, breach of the duties of loyalty and confidentiality, and related claims. With an aggressive and fast-moving litigation strategy, including the use of forensic computer experts who analyzed and imaged thousands of computer files and devices, the firm uncovered the full extent of the corporate espionage and brought it to an end. Ultimately, the firm obtained a court order requiring a complete inventory of all stolen documents and computer files, and forced the former employees to destroy all their ill-gotten computer equipment and files. In the process, the firm successfully defended our client against a counterclaim for unfair business practices.

Complete Defense Of Prevailing Wage Claim Relating To Travel Time

The California Labor Commissioner issued a Civil Wage And Penalty Assessment (“CWPA”) against the firm’s client for alleged unpaid travel and subsistence amounts in connection with work on a school project in San Bernardino, California. The potential liability under the CWPA was over $108,000.00, including liquidated damages. In response to the CWPA, our firm immediately initiated the administrative appeal process under California’s Prevailing Wage Law by filing a request for review hearing and a demand for the Labor Commissioner’s investigatory file. We uncovered mistake after mistake by the Labor Commissioner’s investigation, rendering the CWPA inaccurate. We convinced the Labor Commissioner that our client had complied with the law in all respects. As a result, the Labor Commissioner fully released our client – and the entire CWPA – at the earliest stage in the case, without requiring our client to pay anything, and before our client was required to go to a Department of Industrial Relations hearing.

Defense of Employee Discrimination Claim

The firm defended a contractor in an employment discrimination lawsuit filed by a former employee. The lawsuit alleged disability discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination, and the failure to pay prevailing wages. The former employee sought over $250,000 in alleged lost wages, plus punitive damages and attorneys’ fees. The firm removed the case to federal court and convinced the judge to dismiss the punitive damages claims. Prior to significant discovery, the firm was able to negotiate a settlement for a small fraction of the amount initially demanded. This saved the firm’s client valuable time and expense that can now be better used productively in growing the contractor’s business.

Corporate Structuring, Planning And Protection Of Intellectual Property Of Premium Organic Juice Manufacturer In U.S. And International Markets

The firm structured and planned new business with placement in major national retailers. Negotiated and managed corporate transactions from formation to raising capital and debt for major equipment. Negotiated commercial lease and counseled client regarding labor and employment procedures. Successfully registered client brand name in U.S. for protection of client intellectual property from conflicting or competing uses. Evaluated, planned and managed application process for client registration of additional brands, logos, product names and label design for over 20 products in the U.S., Canada and the 27 countries comprising the European Union.

Complete Defense Of Cal/OSHA Citations In A Fatal Workplace Accident

The firm represented a general contractor that received multiple Cal/OSHA citations following a fatal on-the-job accident. From the very outset of the Cal/OSHA investigation on the day of the accident, through to the pre-trial period, the firm defended and counseled the contractor successfully. In the end, based on the evidence and legal arguments developed and presented by the firm, Cal/OSHA dismissed each of the citations in their entirety and dropped the case without a single penny of penalties to the contractor or any negative mark on the contractor’s Cal/OSHA history.

Defense Of Employment Discrimination Lawsuit

The firm defended a contractor in an employment discrimination lawsuit filed by a former employee who had been laid off as part of a reduction in force. The plaintiff alleged age discrimination, disability discrimination, violations of the federal and state medical leave laws, retaliation, and intentional infliction of emotional distress. He sought over $350,000 in lost wages, plus emotional distress damages, punitive damages and attorneys’ fees. To gain an early strategic advantage, the firm successfully removed the lawsuit from state to federal court, where we then convinced the federal judge to dismiss two significant portions of the lawsuit, including the claims for emotional distress and punitive damages. We then obtained significant admissions from the plaintiff in a heated deposition, which forced him to reduce his demand. The case settled after an early neutral evaluation with the judge, saving the contractor valuable time and tens of thousands of dollars in potential damages and attorneys’ fees.

California Workers’ Compensation Appeals Board Serious and Willful Misconduct Case

The firm represented a lath, plaster and drywall subcontractor whose employee suffered serious injuries in an on-site hose whipping accident. The employee alleged the incident was the result of the subcontractor’s serious and willful misconduct, including by not properly locking out/tagging out the hose. He sought more than $250,000 in damages. The firm defended the subcontractor at trial, ultimately obtaining a favorable settlement for a fraction of the original amount claimed.

Defense Of Civil Wage And Penalty Assessment By The California Labor Commissioner (DLSE)

The firm’s subcontractor client was served with a massive Civil Wage and Penalty Assessment by the California DLSE relating to its work on various public works projects. The assessment included potential liability of over $150,000, including unpaid prevailing wages, substantial Labor Code penalties, liquidated damages and interest. Fourteen workers were audited and claimed to be misclassified and unpaid or underpaid. The firm defended the subcontractor at an administrative hearing before the California Department of Industrial Relations. Based on the firm’s procedural motions and cross-examination of several of the workers, the DLSE dropped the majority of the assessment and settled the matter favorably for the subcontractor.

Early And Efficient Dismissal Of Case Involving Independent Contractors

The firm represented a company in a case by independent contractors. The independent contractors alleged such things as breach of contract, tortious interference with prospective economic advantage, and defamation. At the very beginning of the case, the firm attacked the lawsuit for various legal insufficiencies, and the court agreed, dismissing the case against the firm’s client and ending the lawsuit at the earliest stage possible.

Caregiver/Fiduciary/Trust Administrator & Employment Litigation

The firm represented the beneficiary of a multi-million dollar irrevocable trust who was sued by a caregiver and fiduciary engaged by the trust to provide services to the beneficiary and trust, including home healthcare. The beneficiary was a chronically ill and disabled dependent adult. The caregiver sued the beneficiary and the trustee of the trust for breach of an alleged contract of employment for life, seeking wages and benefits, plus emotional distress damages, claiming he was the friend, mentor, life coach, real estate agent, banker and employee of both the beneficiary and the trust. The damages sought exceeded one million dollars. However, the caregiver had obtained a highly suspect power of attorney and numerous so-called “donative transfers” or “gifts,” including cash, jewelry, a car, trips and more, from the trust beneficiary, all despite the beneficiary’s lack of capacity. Early in the case, we successfully eliminated the caregiver’s claims against the beneficiary on the grounds the caregiver’s contractual relationship, if any, was with the trust, not the beneficiary. We then counter-sued for the rescission of the “gifts,” and financial abuse under California’s dependent adult and elder abuse protection statutes. We successfully litigated the matter to trial, at which time the caregiver – when faced with the likely dismissal of his claims plus the prospect of our substantial counterclaims – dismissed his claims in their entity. The client’s claims were favorably resolved.

Urbas v. ASM Affiliates, Inc., California Department of Industrial Relations, Division of Labor Standards Enforcement Case No. 17-56404 DB

The firm victoriously defended this client in an administrative wage and hour proceeding before the California Labor Commissioner. A former employee filed a complaint alleging that she was not timely paid her final wages at termination. She sought substantial “waiting time penalties” under California Labor Code section 203. The firm represented the client in a hearing before a Labor Commissioner hearing officer, successfully arguing that waiting time penalties were not available because there was a good faith dispute as to whether the employee was owed any wages at the time of her termination. The Labor Commissioner ruled in favor of the firm’s client, awarded the employee nothing, and dismissed the case in its entirety.

New Dimension Masonry, Inc. DAS Complaint #2009-0778

In an administrative proceeding before the California Department Of Industrial Relations, the Division of Apprenticeship Standards (DAS) cited the firm’s client for an alleged failure to comply with the apprenticeship requirements of California’s Prevailing Wage Law at Labor Code section 1777.5 and the California Code of Regulations section 203.1. The firm quickly convinced the DAS that the complainant, a union watchdog-type group, was wrong in its use of the law relating to approved apprenticeship programs and apprentice dispatch requests. The DAS dismissed the complaint before a hearing was necessary. In short order, the firm’s client was paid in full its project funds which had been withheld due to the apprenticeship complaint.

Erickson-Hall Construction Company v. San Diego Unified School District and Graham Champion San Diego Superior Court Case No. 37-2008-00087501-CU-WM-CTL

The firm recovered over $1 million on behalf of its general contractor client against the school district and its labor compliance program. In this first of its kind lawsuit, the firm asserted civil rights and other claims against the labor compliance program which was withholding contract funds far in excess of that justified by the California Prevailing Wage Law. The case settled, and in addition to the large recovery, the firm's client was paid its attorneys' fees.

Seminars

Prevailing Wage, Apprenticeship and Skilled Workforce Requirements

October 19, 2016: Presented by Chad T. Wishchuk. Find out more here.

California Prevailing Wage and Apprentice Laws Basics & Latest Trends & Developments

June 14, 2016: Presented by Chad T. Wishchuk. This lunch and learn workshop will review the basics of the California prevailing wage law, including coverage issues and now to determine what rates apply. It will also cover recent changes to the prevailing wage law and enforcement trends. Learning objectives:

  • Better understand what work is covered by the California Prevailing Wage Law
  • More easily determine what prevailing wage rate applies to your project
  • Know common pitfalls to avoid
  • Better understand the practices and policies you should have in place to comply with the prevailing wage laws and limit exposure for assessments

Target Audience: Business Owners, HR Professionals, Payroll Managers. Find out more here.

Mid-Year Legal Hr Updates Seminar

June 7, 2016: Presented by Chad T. Wishchuk. This seminar will cover:

  • The latest on complying with California’s New Paid Sick Leave Law
  • Federal Contractor update: New Executive Orders and OFCCP regulations
  • The latest wage and hour trends and pitfalls
  • Updates on the National Labor Relations Board
  • Affordable Care Act update

Find out more here.

OFCCP Compliance Basics & Latest Trends/Development

April 7, 2016: Presented by Chad T. Wishchuk. This lunch and learn workshop will focus on the issues raised by projects that are subject to prevailing wage laws, including apprenticeship requirements and how contractors can implement strategies to monitor compliance issues. Learning Objectives:

  • Understand your OFCCP obligations under new Obama-administration executive orders
  • Be able develop strategies and practices for monitoring your compliance and your subcontractors compliance with OFCCP obligations

Find out more here.

Latest On Obamacare: The Employer Mandate Finally Arrives

February 10, 2016: Presented by Chad T. Wishchuk. This workshop will provide an overview of the current status of the employer mandate and reporting portion of requirements under the Affordable Care Act, also know as Obamacare, now that the delays are expiring for 2016. Learning Objectives:

  • Better Understand what Obamacare means for your business
  • Learn the latest revisions and developments and what you need to do to comply now

Who should attend: Business owners, HR Professionals and Benefit Specialists. Find out more here.

California Wage And Hour Laws Best Practices & Latest Trends

January 12, 2016: Presented by Chad T. Wishchuk. This lunch and learn workshop will provide an overview of basic wage and hour employment laws and practices that your company can implement to comply with those laws and reduce the risk of employee claims. It will also look at recent developments in the law and workplace and how those developments may affect your human resource practices. Learning objectives:

  • Better understand California’s wage and hour laws and how to avoid common pitfalls that exposes employers claims
  • Be able to develop record-keeping practices that better protect you from employee claims
  • Know about recent legal developments affecting the workplace, including the new California’s Paid Sick Leave and Fair Pay Act
  • Better understand how the increased use of technology can affect your human resource practices

Target Audience: Business Owners, HR Professionals, Payroll Managers. Find out more here.

Prevailing Wage Wheel

November 18, 2015: This is for the participant that has some prevailing wage/certified payroll training experience and would like a deeper dive into topics surrounding prevailing wage compliance. Please join us for the “Prevailing Wage Wheel” where you will experience three different subject matter experts in a small group format allowing you more personalized time to address your compliance concerns. The three wheel topics are Prevailing Wage compliance, Apprenticeship Standards, and the legal side of Labor Compliance. The topics are presented by our veteran team of Marty Glaske, Gafcon; Karen Belcher, Division of Apprenticeship Standards, and Chad T. Wishchuk from Finch, Thornton & Baird. This seminar is complimentary. Register online here.

Lessons in Wage & Hour Laws - Part II

June 2, 2015: Presented by Chad T. Wishchuk. This session will cover : Investigations - when to and how to, Time records and other employment related recordkeeping requirements, more wage and hour information, Apprentices - DIR laws and regulations, Properly classifying Independent Contractors, and recent changes - what to expect in 2015. Register online here.

Prevailing Wage Law - Basics & Latest Trends/Developments

April 15, 2015: Presented by Chad T. Wishchuk. This course will review the basics, including coverage issues and how to determine what rates apply. It will also cover recent changes to the prevailing wage law and enforcement trends. Register online here.

AB1522 – How To Comply With The New Sick Leave Law & Other Legal Updates

March 31, 2015: Presented by Chad T. Wishchuk. This session will cover: California's New Mandatory Paid Sick Leave Law, New Anti-Bullying / Anti-Harassment Training Requirements, The Latest Wage & Hour Trends and Pitfalls, Including: The New Cellular Phone Reimbursement Case, California's New Law Imposing Shared Liability on Companies Using Labor Contractors, And Temporary Staffing Agencies.

Lessons in Wage & Hour Laws - Part I

March 24, 2015: Presented by Chad T. Wishchuk. (Federal/California) What you don't know can hurt you! This session will cover: Wage and Hour issues, Exempt vs. Non-Exempt, Audits - What to expect, and Internships - What you need to know before engaging them.

Prevailing Wage Law - Basics & Latest Trends/Developments

November 12, 2014: Presented by Chad T. Wishchuk. This course will review the basics, including coverage issues and how to determine what rates apply. It will also cover recent changes to the prevailing wage law and enforcement trends.

H.R. Best Practices & Latest Trends

November 5, 2014: Presented by Chad T. Wishchuk. This course will provide an overview of basic wage and hour employment laws and practices your company can implement to comply with those laws and reduce the risk of employee claims.

The Latest on Obamacare

October 8, 2014: Presented by Chad T. Wishchuk. This course will provide an overview of all the latest changes and delays to the Affordable Care Act, also known as Obamacare.

Lessons in Wage & Hour Laws - Part 2

September 16, 2014: Presented by Chad T. Wishchuk and Linda Aguilar.

Prevailing Wage Laws, Including Apprenticeship on Federal, State & Local Projects

August 12, 2014: Presented by Chad T. Wishchuk. This course will focus on the issues raised by projects that are subject to prevailing wage laws, including apprenticeship requirements and how contractors can implement strategies to monitor compliance issues.

Prevailing Wage Law - Basics & Latest Trends/Developments

June 26, 2014: Presented by Chad T. Wishchuk. This course will review the basics of the California Prevailing Wage Law, including coverage issues and how to determine what rates apply.

Lessons in Wage & Hour Laws - Part 1

June 17, 2014: Presented by Chad T. Wishchuk and Linda Aguilar.

H.R. Best Practices & Latest Trends

April 23, 2014: Presented by Chad T. Wishchuk. This course will provide an overview of basic wage and hour employment laws and practices your company can implement to comply with those laws to reduce the risk of employee claims.

New Employment Laws in California for 2012

March 27, 2012: Presented by Chad T. Wishchuk for Associated General Contractors of America, San Diego Chapter, Inc. Find out more here.

Beyond Progressive Discipline

June 25, 2008: Presented by Chad T. Wishchuk for the Associated General Contractors of America, San Diego Chapter, Inc.

O.T. Laws: Eliminating Confusion and Ensuring Compliance

November 3, 2007: Presented by Chad T. Wishchuk and Linda Aguilar, Deputy Labor Commissioner for Associated General Contractors of America, San Diego Chapter, Inc.

Employment Law Update

September 20, 2007: Presented by Chad T. Wishchuk for Associated General Contractors of America, San Diego Chapter, Inc.

Sexual Harassment Training & Education

November 6, 2005: Presented by Chad T. Wishchuk for Associated General Contractors of America, San Diego Chapter, Inc.

Employment Law Update

September 15, 2005: Presented by Chad T. Wishchuk for Sterling Education Services, Inc.