Fired Worker Says In-N-Out Didn't Follow Virus Protocols

By Max Kutner
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Law360 (May 10, 2021, 2:22 PM EDT) -- 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," a former employee said in a proposed representative action in a state court.

Luis Becerra accused In-N-Out of a slew 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 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.

One time, In-N-Out wrote him up for absences in December 2018 even though he provided a doctor's note saying he had to take time off due to pneumonia, he said in the complaint. In December 2019, the chain marked him absent after a supervisor had given him permission to switch work days to attend his daughter's school event, according to Becerra.

Also in 2019, Becerra said he reported to management that a supervisor had sexually harassed his girlfriend. But management responded by writing him up for "not listening to his manager" and offering to buy him event tickets "as long as he kept quiet about the incident," 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 apparent attendance issues.

"In reality, they were trying to get rid of him for his reporting activity," the complaint said.

Becerra ended up having to quarantine for two weeks because his daughter was hospitalized with COVID-19 symptoms, and then for another two weeks because he had a high temperature, the suit said. He did not receive all the sick time pay for which he was eligible, he said.

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.

He 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.

Becerra is suing under California's Private Attorneys General Act , which enables employees to bring lawsuits over labor violations to recover civil penalties for themselves, other employees and the state. He is seeking to represent current and former In-N-Out employees dating back to January 2020.

Rene Potter, who represents Becerra, said Becerra felt it was necessary to report what he was seeing in the early weeks of the COVID-19 health crisis.

"Employees were scared," Potter said in a statement to Law360 on Monday. "Mr. Becerra saw all of this going on, so he reported it. … In-N-Out responded by using improper write-ups it had issued against Mr. Becerra for taking short, valid medical leaves as false justification to terminate him."

Potter added, "We need good people like Mr. Becerra, who sees wrongdoing at work and is brave enough to report it."

Arnie Wensinger, chief legal and business officer for In-N-Out, said in a statement to Law360 Monday, "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."

Becerra is represented by Rene Potter of Potter Handy LLP.

Counsel information for In-N-Out was not available.

The case is Luis Becerra v. In-N-Out Burger, case number 21STCV17045, in the Superior Court of California, County of Los Angeles.

--Editing by Neil Cohen.

Update: This story has been updated with comment from an In-N-Out representative.

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