Labor & Employment Attorneys

Areas Handled By Our Labor & Employment Lawyers

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Finch, Thornton & Baird, LLP’s San Diego attorneys primarily represent employers. Through the firm’s construction industry experience, it has extensive knowledge of labor and employment issues peculiar to construction law, although the firm’s lawyers serve a broad range of industries from clothing manufacturers to the healthcare industry. The firm’s employment lawyers provide a variety of legal services.

Services provided by our labor and employment lawyers include:

  • Resolution Of Disputes With The California Labor Commissioner And Labor Compliance Programs, Including Debarment Proceedings
  • Defense Of Employee Discrimination, Wrongful Discharge, Trade Secret, And Sexual Harassment Claims
  • Defense Of Davis-Bacon And California Prevailing Wage Actions, Including Apprenticeship Issues
  • Revising And Drafting Employment Policies, Manuals, And Handbooks
  • Collective Bargaining Negotiations And Election Campaigns
  • Reviewing And Drafting Employment Contracts
  • Resolution Of Union Jurisdictional Disputes
  • Wage And Hour Compliance And Litigation, Including California And Federal Overtime And Other Actions, Such As Meal And Rest Break Class Actions
  • Prevention Of Secondary Boycotts, Picketing, And Representation Before The NLRB
  • Federal OSHA And Cal-OSHA Matters
  • Workers’ Compensation Matters
  • Right To Work Litigation
  • Reviewing And Drafting Trade Secret, Non-Solicitation, And Related Agreements
  • Preventative Counseling On All Aspects Of Employment Issues

Published Labor & Employment Decisions

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.

Taylor Frager (N.L.R.B.G.C., No. 21-CA-35568) 2003 WL 22927217 (August 28, 2003)

The firm successfully defended a general contractor’s right to prevent illegal trespassing by union business agents on a private construction job in San Diego. The union filed unfair labor practice charges against the firm's client when its union business agents were denied access to a jobsite and then locked in the jobsite fence to await police assistance. The Office of General Counsel of the National Labor Relations Board agreed the charges should be dismissed because the business agents did not have the right to access the interior of the construction jobsite, especially given the posted no-access and no-solicitation rules.

Representative Labor & Employment 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.

Counsel: Chad T. Wishchuk and Kathleen A. Donahue

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk and Daniel P. Scholz

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk and Daniel P. Scholz

Wage and Hour Class Action v. Contractor

The firm defended a contractor against a class action lawsuit based on alleged violations of wage and hour and prevailing wage laws. The lawsuit was brought on behalf of over 400 current and former employees. An object of the litigation was to force the contractor to sign a union contract. The lawsuit sought over $5 million in damages plus attorneys’ fees and Labor Code penalties. The firm successfully removed the lawsuit from state court to federal court, limited initial discovery, and successfully defended the plaintiffs’ attempts to remand the lawsuit to state court. To avoid costly depositions, a class certification motion, other discovery, and trial, the firm participated early in conferences with a federal magistrate judge. By addressing the issues and claims early in the litigation, the firm successfully defended the contractor from labor organization efforts and obtained a settlement agreement from plaintiffs including full releases of all claims for the prior four years. The firm provided an efficient and quick resolution of the complex matter, saving the client time and money.

Counsel: Jeffrey B. Baird and Daniel P. Scholz

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk

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.

Counsel: Chad T. Wishchuk