Chad T. Wishchuk

The firm handled oral argument before the Third District Court of Appeal in Sacramento, California relating to Cal/OSHA citations alleging a contractor’s failure to use respirators to combat the fungus-caused disease known as Valley Fever.  The firm argued there was inadequate evidence of exposure to support the citations, and a three-judge panel of the Court of Appeal agreed.  In its published decision, the court held there was no evidence to support requiring respirators.  The court reversed the decision of the Cal/OSHA Appeals Board, vacating the two serious citations against the firm’s client.  This published decision preserved the client’s spotless history of safety compliance, and set precedent to help contractors defeat overzealous prosecution by Cal/OSHA.

Counsel: Chad T. Wishchuk and Marlene C. Nowlin

On March 28, 2022, the firm was victorious for a contractor client in San Diego Superior Court following a trial de novo of a wage and hour claim.  The worker initially took his wage claim to the California Labor Commissioner and — despite the worker having failed a pre-employment drug test — asserted a claim for unpaid wages, waiting time penalties under Labor Code section 203, liquidated damages under Labor Code section 1194.2, and interest.

Firm appeals Labor Commissioner’s initial order.

Following an evidentiary Berman hearing in the Division of Labor Standards Enforcement (DLSE) of the California Department of Industrial Relations (DIR), the Labor Commissioner ordered the contractor to pay thousands of dollars in unpaid wages for such things as show-up time, a safety orientation meeting, and travel time in connection with the pre-employment drug testing.  The firm immediately filed an appeal of the faulty Labor Commissioner order in Superior Court and posted a bond under California Labor Code section 98.2.

Superior Court finds in favor of firm client.

Ultimately, a Superior Court judge heard trial testimony from both the contractor and the worker.  Following a one-day trial, the court ruled in favor of the contractor in all respects.  Judgment was entered in favor of the contractor and against the worker, and the Labor Commissioner order was vacated in its entirety.  The worker recovered nothing.

Counsel:  Chad T. Wishchuk

General Contractor Client Saved From Controlling Employer Liability.

In February 2016, a client was issued four serious safety citations by New Mexico Environment Department’s Occupational Health and Safety Bureau (New Mexico OSHA) relating to a scaffolding collapse at the client’s construction site.  Following a five-day hearing in 2017 before the New Mexico Occupational Health and Safety Review Commission (the Commission), the firm prevailed, and all of the citations were dismissed.

New Mexico OSHA then appealed to the state court in New Mexico, which reversed the Commission’s decision.  In turn, the firm appealed to the New Mexico Court of Appeals.

Court of appeals finds in favor of firm client.

On February 7, 2022, the New Mexico Court of Appeals reversed the lower court, finding in favor of the firm and its client in all respects.  Specifically, the Court of Appeals reinstated the Commission’s decision that the client did not know or have reason to know of any hazardous condition of the scaffold, and that the client thus satisfied its duty to exercise reasonable care on the multi-employer site.  In the end, the citations were vacated, and all monetary penalties were reduced to $0.

Counsel: Chad T. Wishchuk

Claim Involved Travel Time and Off-the-Clock Work On Construction Sites.

In 2015, a firm client was sued in Los Angeles Superior Court by a former employee/carpenter alleging the failure to pay overtime and minimum wages, failure to provide meal and rest breaks, and failure to reimburse for necessary business expenses.  The lawsuit also included claims under California’s Unfair Competition Law (Bus. & Prof. Code, §§ 17200 et seq.) and waiting time penalties under California Labor Code Section 203.

The lawsuit sought to join thousands of other tradesmen throughout California in a single class action.  Specifically, the former employee claimed he was not paid for such things as: (1) donning and doffing personal protective equipment like high-visibility vests and hard hats, and (2) traveling between worksites and to out-of-town jobs.

Class Certification motion denied and Lawsuit dismissed.

The firm aggressively defended the client, filing over 2,000 pages of declarations, depositions, and other evidence to defeat the class action certification motion in its entirety.  After over six years of litigation, the lawsuit was ultimately dismissed with the firm’s client paying $0.

Counsel: Chad T. Wishchuk

A client was cited by California OSHA for three employees working in two separate aerial boom devices at a height over 30 feet without fall protection or a lanyard attached to the baskets.  Following an intense deposition of the Cal/OSHA investigator, followed by extensive legal briefing, the firm defended the case at a hearing before the California Occupational Safety and Health Appeals Board (COSHA).  The Board issued a 20-page decision in favor of our client, finding we had successfully proven all the elements of the independent employee action defense (IEAD).  The citation was vacated and no penalty assessed.

Counsel: Chad T. Wishchuk

A client was cited by Nevada OSHA for a serious violation of a stairway standard requiring a stair rail system along each unprotected edge of a stairway under construction.  The citation could have negatively impacted our client’s ability to qualify for future work.  The firm immediately appealed the citation, and engaged in an informal settlement conference with the Nevada OSHA district office.  Armed with project progress photographs and evidence of involvement by other subcontractors, the firm convinced Nevada OSHA to withdraw the citation in its entirety and reduce the penalty to $0.

Counsel: Chad T. Wishchuk

The firm defended an international manufacturer of environmental and construction specialty products in an employment discrimination lawsuit filed by a former employee. The employee brought claims for disability discrimination, failure to accommodate, failure to engage in the interactive process, failure to prevent discrimination, and wrongful termination under the California Fair Employment and Housing Act (“FEHA”). He alleged he was fired due to back and neck injuries he sustained in an automobile accident even though he was able to perform his job with reasonable accommodations. The firm removed the case to federal court and discovered the employee was simultaneously pursuing a separate personal injury lawsuit alleging he was so injured he could no longer work. The firm went on the offensive, aggressively arguing malicious prosecution. The employee sought over $300,000 in lost wages, punitive damages, and attorneys’ fees. In the end, the firm successfully negotiated a settlement for a tiny fraction of the amount demanded by the employee, saving the client valuable costs and time.

Counsel: Chad T. Wishchuk

The firm structured and planned new business with placement in major national retailers. Negotiated and managed corporate transactions from formation to raising capital and debt for major equipment. Negotiated commercial lease and counseled client regarding labor and employment procedures. Successfully registered client brand name in U.S. for protection of client intellectual property from conflicting or competing uses. Evaluated, planned and managed application process for client registration of additional brands, logos, product names and label design for over 30 products in the U.S., Canada, the European Union, and various other countries.

Counsel: David S. Demian, Chad T. Wishchuk, Kelly A. Floyd, and Allison N. Lantz

The firm represented TXL, Inc., an oil change business with operations in Brawley, California. The plaintiff, an oil change technician, alleged overtime, meal and rest break, and related claims, including for liquidated damages under Labor Code section 1194.2, waiting time penalties, and interest. A hearing was held before the Labor Commissioner. The Labor Commissioner ruled in favor of TXL on every single claim, ordering that the plaintiff take nothing. A copy of the Order, Decision Or Award Of The Labor Commissioner can be found at this link.

State Case Number 10-88772EA

Counsel: Chad T. Wishchuk

The firm represented a company against the company’s former high-ranking officer and other former employees who resigned abruptly to form a competing business. These former employees used removable hard drives, flash drives, and jump drives to copy sensitive company information and customer lists in violation of the law and non-solicitation and non-compete obligations. The firm filed a lawsuit alleging information theft, trade secret misappropriation, breach of the duties of loyalty and confidentiality, and related claims. With an aggressive and fast-moving litigation strategy, including the use of forensic computer experts who analyzed and imaged thousands of computer files and devices, the firm uncovered the full extent of the corporate espionage and brought it to an end. Ultimately, the firm obtained a court order requiring a complete inventory of all stolen documents and computer files, and forced the former employees to destroy all their ill-gotten computer equipment and files. In the process, the firm successfully defended our client against a counterclaim for unfair business practices.

Counsel: Chad T. Wishchuk and Daniel P. Scholz

The firm represented a general contractor and its bonding company on a public works school project in Southern California. The labor compliance program of the school district alleged that a subcontractor on the project willfully violated the California Prevailing Wage Law, by misclassification, under-reporting, and underpayment of prevailing wages and overtime. A notice of withholding of contract payments was issued against the general contractor and subcontractor for nearly a quarter of a million dollars. The firm asserted the innocent general contract “safe harbor” defense under the California Labor Code, as well as a statute of limitations defense under Labor Code section 1741. Following our pre-hearing motion to the California Director of Industrial Relations, the entire case was withdrawn and dismissed, resulting in zero dollars of liability for our client and surety.

Counsel: Chad T. Wishchuk

The firm’s client, an electrical contractor on a commercial hotel renovation project, was cited by OSHA for an alleged failure to properly de-energize and label circuits in an electrical panel. The firm successfully argued that the citation was improper, including because the circuits in questions were not known to the electrical contractor because they did not appear in contract drawings or specifications and were under the exclusive control of the project owner. As a result of the firm’s arguments, OSHA vacated the citation following an early informal conference, with no penalties assessed against the firm’s client.

Counsel: Chad T. Wishchuk

In the first case of its kind under the California prevailing wage law, the firm successfully defended a Civil Wage and Penalty Assessment issued by the California Labor Commissioner against a cultural resources management firm (“CRM”). The Labor Commissioner sought over $200,000 in back wages, penalties and liquidated damages relating to archaeological monitoring and testing services that the CRM firm had performed prior to and during the construction of a rail improvement project. The firm successfully argued that none of archaeological work was covered by the California prevailing wage law because such work was not work performed in “execution of the [public works construction] contract.” After extensive briefing and a hearing, the Director of Industrial relations agreed with the firm and found that the archeological work performed by the firm’s client was not covered by the prevailing wage law. As a result, the entire assessment was dismissed.

A copy of the Director’s decisions can be found here.

DIR Case No. 14-0418-PWH

Counsel: Chad T. Wishchuk

The California Labor Commissioner issued a Civil Wage And Penalty Assessment (“CWPA”) against the firm’s client for alleged unpaid travel and subsistence amounts in connection with work on a school project in San Bernardino, California.  The potential liability under the CWPA was over $108,000.00, including liquidated damages.

In response to the CWPA, our firm immediately initiated the administrative appeal process under California’s Prevailing Wage Law by filing a request for review hearing and a demand for the Labor Commissioner’s investigatory file.  We uncovered mistake after mistake by the Labor Commissioner’s investigation, rendering the CWPA inaccurate.  We convinced the Labor Commissioner that our client had complied with the law in all respects.  As a result, the Labor Commissioner fully released our client – and the entire CWPA – at the earliest stage in the case, without requiring our client to pay anything, and before our client was required to go to a Department of Industrial Relations hearing.

Counsel: Chad T. Wishchuk

The firm defended a contractor in an employment discrimination lawsuit filed by a former employee. The lawsuit alleged disability discrimination, failure to accommodate, failure to engage in the interactive process, wrongful termination, and the failure to pay prevailing wages. The former employee sought over $250,000 in alleged lost wages, plus punitive damages and attorneys’ fees. The firm removed the case to federal court and convinced the judge to dismiss the punitive damages claims. Prior to significant discovery, the firm was able to negotiate a settlement for a small fraction of the amount initially demanded. This saved the firm’s client valuable time and expense that can now be better used productively in growing the contractor’s business.

Counsel: Chad T. Wishchuk and Daniel P. Scholz

The firm represented a general contractor that received multiple Cal/OSHA citations following a fatal on-the-job accident. From the very outset of the Cal/OSHA investigation on the day of the accident, through to the pre-trial period, the firm defended and counseled the contractor successfully. In the end, based on the evidence and legal arguments developed and presented by the firm, Cal/OSHA dismissed each of the citations in their entirety and dropped the case without a single penny of penalties to the contractor or any negative mark on the contractor’s Cal/OSHA history.

Counsel: Chad T. Wishchuk

The firm defended a contractor in an employment discrimination lawsuit filed by a former employee who had been laid off as part of a reduction in force. The plaintiff alleged age discrimination, disability discrimination, violations of the federal and state medical leave laws, retaliation, and intentional infliction of emotional distress. He sought over $350,000 in lost wages, plus emotional distress damages, punitive damages and attorneys’ fees. To gain an early strategic advantage, the firm successfully removed the lawsuit from state to federal court, where we then convinced the federal judge to dismiss two significant portions of the lawsuit, including the claims for emotional distress and punitive damages. We then obtained significant admissions from the plaintiff in a heated deposition, which forced him to reduce his demand. The case settled after an early neutral evaluation with the judge, saving the contractor valuable time and tens of thousands of dollars in potential damages and attorneys’ fees.

Counsel: Chad T. Wishchuk

The firm represented a lath, plaster and drywall subcontractor whose employee suffered serious injuries in an on-site hose whipping accident. The employee alleged the incident was the result of the subcontractor’s serious and willful misconduct, including by not properly locking out/tagging out the hose. He sought more than $250,000 in damages. The firm defended the subcontractor at trial, ultimately obtaining a favorable settlement for a fraction of the original amount claimed.

Counsel: Chad T. Wishchuk

The firm’s subcontractor client was served with a massive Civil Wage and Penalty Assessment by the California DLSE relating to its work on various public works projects. The assessment included potential liability of over $150,000, including unpaid prevailing wages, substantial Labor Code penalties, liquidated damages and interest. Fourteen workers were audited and claimed to be misclassified and unpaid or underpaid. The firm defended the subcontractor at an administrative hearing before the California Department of Industrial Relations. Based on the firm’s procedural motions and cross-examination of several of the workers, the DLSE dropped the majority of the assessment and settled the matter favorably for the subcontractor.

Counsel: Chad T. Wishchuk