A former In-N-Out Burger employee alleges he was wrongfully terminated by the California restaurant chain in retaliation for reporting to the L.A. Department of Public Health a number of apparent COVID-19 safety violations.
The plaintiff, who worked as a butcher for In-N-Out from roughly July 2015 until his allegedly wrongful termination on May 25, 2020, claims in the proposed representative action that he was improperly written up by In-N-Out, who alleged he had “falsely use[d] up his sick time,” and accused of lying about having asthma. According to the lawsuit, the plaintiff’s reporting of In-N-Out’s apparent coronavirus safety violations in February 2020 “sealed his fate,” and the man was fired three months later.
The California Labor Code case claims In-N-Out issued to the plaintiff on March 6, 2020 a “final warning” over ostensible attendance issues. The lawsuit alleges the defendant, “[i]n reality,” was “trying to get rid of him for his reporting activity.”
“On information and belief, Defendants similarly gave retaliatory warnings to and threatened all aggrieved employees for their protected reporting activities and asserting their rights,” the complaint, filed in Los Angeles County Superior Court, alleges.
According to the case, the plaintiff was improperly disciplined a number of times throughout his employment for taking protected time off. The lawsuit alleges that although the plaintiff provided “valid reasons and/or documentation” each time he needed to miss work, In-N-Out would write him up for taking the approved leave. One incident, for example, came on January 5, 2018, when the plaintiff, according to the complaint, was the victim of domestic violence. The plaintiff alleges that he called the defendant’s human resources department and the InNOutCares team the following day to report the incident, and requested to take the next two days off to avoid having to come to work with “bruises and cuts on his face.” Per the case, the plaintiff was “also very emotionally distressed after the incident.” Although HR assured the plaintiff that the missed days would not count against him and would be excused, the man was written up and received discipline “because the absences were not covered,” the case says, alleging documents pertaining to the domestic abuse-related time off were “deleted from his file.”
The plaintiff alleges he was also written up by In-N-Out for missing three days of work in December 2018 after coming down with pneumonia. The plaintiff, who the suit says was in “great pain and was taking codeine every six hours” at the time, needed to miss four days of work to recover, and provided In-N-Out HR with a doctor’s note yet was still written up, according to the complaint.
The plaintiff moreover alleges he was wrongfully disciplined around March 15, 2019 after requesting a day off for jury duty, which he was reportedly told by a supervisor that he could have but “only if [the plaintiff] gave him the iPhone” the man was trying to sell at no cost. Per the lawsuit, the plaintiff was “forced to give his supervisor the phone, free of charge, to exercise his right and duty to attend jury duty.”
The plaintiff alleges in the lawsuit that the same supervisor subjected his girlfriend to sexual harassment, which the man reported to HR by phone in October 2019. The lawsuit claims the manager of In-N-Out’s meat department offered the plaintiff event tickets “as long as he kept quiet about the incident and moved on” without giving the supervisor any issues. Per the case, however, the plaintiff received a write-up just after reporting the incident for “not listening to his manager.”
At the onset of the COVID-19 pandemic, in January and February 2020, the plaintiff and “all aggrieved employees” continued working at In-N-Out because they worked in an essential services industry, the case says. The suit alleges the plaintiff and similarly situated workers were, in truth, “employed in unsafe and unhealthy working conditions,” and felt unsafe at work due to an alleged lack of health and safety protocols and practices and the inadequate use of safety devices.
“In-N-Out did not ensure that all employees practiced social distancing in the workplace,” the suit claims. “Further, In-N-Out did not make it mandatory for all employees, including meat department associates, to wear protective gears/safety devices like face masks at work.”
The plaintiff moreover alleges In-N-Out’s meat department was “full of sick employees,” many of whom, “especially butchers,” were exhibiting COVID-19 symptoms. The case claims In-N-Out did not place them on medical leave.
According to the complaint, the plaintiff in February 2020 made a report to the Los Angeles Public Health Department with regard to the In-N-Out meat department’s actions during COVID-19. Later that month, the health department conducted an inspection of the meat department in response to the plaintiff’s complaint and reported violations, the case claims. Following the violations report, the plaintiff, the lawsuit says, informed butchers, many of whom did not speak English, that they had the right to report and express their concerns regarding COVID-19 and their workplace safety. The case claims the defendant’s response to the plaintiff signaled the beginning of the end of the man’s employment. From the complaint:
“Word spread and the supervisors at In-N-Out found out what [the plaintiff] was telling butchers. Just a week later, on March 6, 2020, In-N-Out gave [the plaintiff] a ‘final warning’ for attendance reasons. In reality, they were trying to get rid of him for his reporting activity. On information and belief, Defendants similarly gave retaliatory warnings to and threatened all aggrieved employees for their protected reporting activities and asserting their rights.”
The suit then alleges that the plaintiff was ordered to quarantine for two weeks around March 24, 2020 because he was caring for his daughter who was experiencing COVID-19 symptoms. The plaintiff, “who requested time off and sent [HR] a picture of his daughter hooked up to a breathing machine at the emergency room,” had his leave approved, according to the case. The suit alleges that although In-N-Out promised to pay for qualified employees’ full sick time “even when their sick balance runs out,” the plaintiff was never reimbursed for his sick leave and was not paid 100% of his normal wages.
Upon returning to work on April 8, the plaintiff was sent home to quarantine for another two weeks after a forehead scan showed he had a high temperature, the lawsuit continues. Before being sent home, however, the plaintiff was first required to work for two hours, the case claims.
The final alleged incident touched upon in the suit stemmed from an apparent asthma flare-up that caused the plaintiff to miss a few days of work last May. While the plaintiff’s supervisors were aware that he had asthma, the defendant, the lawsuit says, asked the man to provide documents related to his asthma history and also instructed him to go to LabCorp for x-rays and blood work. According to the suit, the plaintiff was told he had two days to get this done or he would be suspended. Upon showing his supervisors the requisite documentation, the plaintiff was told that “they did not believe him,” the lawsuit alleges, claiming the defendants asserted that the medical note from LabCorp was false.
When the plaintiff reported to work on May 25, he was told he was terminated due to “providing false documentation for his sick time,” and that he had exhausted his sick pay, the lawsuit claims. The suit alleges In-N-Out had an obligation to provide the plaintiff with a reasonable accommodation for a temporary disability if the man’s sick leave was in fact used up, but the company “did not do this,” and instead improperly wrote the man up and accused him of lying about having asthma in order to fire him.
The proposed representative action aims to cover all individuals who were employed by In-N-Out Burger, Inc. or its subsidiary, predecessor or merged entities in California as hourly, non-exempt employees within the last year.
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