In-N-Out Burger Accused of Retaliation and Failure to Enforce Covid-19 Safety Measures

A new lawsuit filed in California state court alleges that the fast food chain In-N-Out Burger (an American regional chain of fast food restaurants with locations primarily in California and the Southwest) wrote up and eventually terminated an employee for taking protected and approved leave.

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

The lawsuit also alleges that In-N-Out Burger shorted workers on pay and retaliated against them for complaining that the California-based burger chain wasn't following COVID-19 safety protocols when it was "full of sick employees.”

Becerra is suing under California's Private Attorneys General Act (“PAGA”), which enables employees to bring lawsuits over labor violations to recover civil penalties for themselves, other employees and the state.

Although California has enacted a number of powerful laws that allow for the enforcement of the state's wage and hour laws, there are a number of workers whose hands are tied when it comes to filing class-action lawsuits against their employers because the companies they work for force them to sign mandatory arbitration agreements.

For these employees, PAGA is the only way to obtain justice when employers shortchange the wages to which they are entitled. PAGA might be the single most important law when it comes to protecting employees’ right to fair wages in California.

Back to the facts of the case. Becerra, a butcher at the fast food chain, accused In-N-Out-Burger of a number of California Labor Code violations stemming from his claim that the chain used false attendance issues to fire him after he complained about a manager and reported to health officials that employees weren't social distancing or wearing masks during the coronavirus pandemic.

"In-N-Out improperly wrote up Mr. Becerra to falsely use up his sick time in order to fire him," said the complaint, filed this past Thursday. "Then, when he reported safety violations, it sealed his fate," the complaint said. Other employees faced retaliation for similar reasons, it said.

Becerra worked as an In-N-Out butcher from 2015 to May 2020, according to the complaint. Over that period, the chain disciplined him for taking time off from work even when he had provided legitimate reasons or documentation, he said.

When the pandemic hit, Becerra complained to the local public health department, which did an inspection, and he encouraged co-workers to file their own health complaints, according to the lawsuit.

"Mr. Becerra and all aggrieved employees did not feel safe at work because adequate health and safety protocols, practices and use of safety devices and safeguards were not being followed by defendants," the complaint said.

"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," Becerra said.

After Becerra complained to the health department, the chain gave him a "final warning" about his alleged attendance issues.

In May 2020, after he missed work due to asthma, the chain accused him of faking a medical note, said he had exhausted his sick pay and then fired him, the lawsuit said. He never received his final pay, he said.

Becerra is accusing the chain of retaliating for his engaging in protected reporting activities; discrimination and retaliation for using sick leave; failing to pay final wages; failing to provide accurate wage statements; and failing to timely provide personnel files.

The case is Becerra v. In-N-Out Burger, Cal. Super. Ct., No. 21STCV17045, complaint 5/6/21. The complaint can be accessed at https://www.bloomberglaw.com/public/desktop/document/ManuallyCollectedComplaint/134?1620738600.