In-N-Out Burger Faces Wage, Covid Safety, Retaliation Suit (1)

May 7, 2021, 8:40 PM; Updated: May 10, 2021, 9:10 PM

In-N-Out-Burger wrote an employee up for protected and approved leave, and failed to institute and enforce Covid-19 safety measures, according to a private attorney general suit filed on behalf of the state in California state court.

The fast food chain also allegedly retaliated against the worker for reporting the company to Los Angeles public health authorities, and shorted butcher Luis Becerra on his pay when it fired him, the employee says.

The company denies the allegations. “At In-N-Out Burger, we have always cared for our Associates as if they are our own family and we are disappointed with the baseless and false claims that Mr. Becerra has made in his lawsuit,” said Arnie Wensinger, its chief legal and business officer.

The chain violated numerous provisions of the California Labor Code, Becerra says in the complaint filed Thursday in Los Angeles County Superior Court. Other hourly employees are similarly aggrieved, he says.

“In-N-Out had a practice of imposing disciplinary action on Mr. Becerra’s protected time off from work,” the complaint says. “Each time he needed to be out, he provided valid reasons and/or documentation, had the leave approved, and then got written up for taking the approved leave.”

These occasions included pneumonia, asthma, and a domestic violence assault on him, he alleges. His supervisor allegedly took a mobile phone he was trying to sell in exchange for allowing him to go to jury duty.

After the pandemic began, “In-N-Out did not ensure that all employees practiced social distancing at the workplace,” Becerra says. “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 Private Attorney General Act complaint also says that “the meat department was full of sick employees, many of whom were exhibiting COVID-19 like symptoms (especially butchers) but Defendants did not place them on medical leave.”

Causes of Action: Labor Code violations of requirements to pay wages due upon termination; to furnish a safe place of employment and not discharge employees who complain of health and safety conditions; to not deny sick leave or discharge employees for taking it; to not retaliate for whistleblowing activities; and other provisions.

Relief: Penalties under Labor Code Private Attorney General Act. damages, and restitution.

Attorneys: Potter Handy LLP represents Becerra.

The case is Becerra v. In-N-Out Burger, Cal. Super. Ct., No. 21STCV17045, complaint 5/6/21.

(New paragraph three added in story that published May 7 to reflect company's response.)

To contact the reporter on this story: Martina Barash in Washington at mbarash@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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