August 12, 2020

Volume X, Number 225

August 12, 2020

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August 11, 2020

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August 10, 2020

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California Judge Grants TRO Related to COVID-19 Risks at Fast-Food Restaurant

On June 16, 2020, several employees at a McDonald’s franchise in Oakland, California filed a lawsuit against their employer, in a matter entitled Hernandez v. VES McDonald’s (No. RG20064825, Superior Court of California, County of Alameda). The lawsuit consists of five plaintiffs, three of whom are employees who allege that they became sick with COVID-19 while working at the restaurant and “unknowingly” spread the disease to family and other members in their communities. The fourth is the infant son of one of the plaintiffs who allegedly contracted COVID-19 from his mother. The final plaintiff is an employee who worked in the same restaurant. At the time the complaint was filed, he had not yet tested positive for COVID-19 but “fears becoming infected and spreading the disease to others.”

The plaintiffs allege causes of action for public nuisance, unfair and unlawful business practices, and violations of Oakland’s Emergency Paid Sick Leave Ordinance. The Oakland lawsuit comes approximately one month after employees at a Chicago-area McDonald’s filed suit alleging that their employer failed to take measures to keep them safe during the COVID-19 pandemic.

COVID-19 as a “public nuisance” is a novel theory being explored by a number of aggressive plaintiffs’ counsel in California. California Civil Code Section 3480 provides: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

On June 22, 2020, Judge Patrick R. McKinney of the Superior Court of California, County of Alameda issued a temporary restraining order (TRO). Pursuant to the TRO, the Oakland franchise will remain closed until July 2, 2020, at which point the court will determine whether a preliminary injunction should be issued. The court ordered that the franchise may reopen and resume operations before July 2, pending approval from the Alameda County Department of Environmental Health.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 184

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About this Author

Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Jennnifer Yanni Labor & Employment Attorney Ogletree Deakins Law Firm
Associate

Jennifer Yanni has spent the entirety of her legal career litigating labor and employment issues. She began her practice representing plaintiffs against national corporations and second-chaired an arbitration that resulted in a six-figure award in a rare reverse-discrimination suit. For the past five years, she has represented employers on a wide range of labor and employment issues. She has defended employers in a variety of industries in cases involving discrimination on the basis of race, sex, and disability; wage and hour disputes involving claims of unpaid overtime, meal breaks, and rest breaks; and consulting issues to clients on fair employment practices.

Ms. Yanni also represents employers in Health and Safety. She has advised employers on safety, risk management, and Cal/OSHA regulations. She has represented employers in investigations, appeals of citations, and enforcement proceedings by Cal/OSHA. She prepares and reviews written safety policies and procedures for employers in the construction, entertainment, healthcare, and management industries. She has developed and presented to employers on a wide range of safety-related issues, including workplace violence in the healthcare industry, fall protection, and legislative developments. For an employer that is the target of a Cal/OSHA inspection, Ms. Yanni provides representation from the start of the inspection through settlement or litigation.

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