Donning and Doffing and Getting Around the California Labor Law

Tracy, CA The judge presiding over a recent California labor lawsuit against Taylor Farms certified the class but only in part. Certification of donning and doffing was denied, contrary to the California labor code.

The hourly workers were seeking class certification of their lawsuit against former and current employers. The plaintiffs used to work at the Taylor Farms food production plants. Defendants also include the “temp agencies” Abel Mendoza and Sling Shot - Taylor Farms hires them to staff much of their operations.

District Judge Kimberly J. Mueller granted in part the certification motion in a February 9, 2015 order regarding meal claims, but denied in part rest break claims. Plaintiffs Pena, Hernandez and Morris, former Taylor Farms employees, are approved as subclass representatives, according to court documents. The case is No. 2:13-CV-01282-KJM-AC, (E.D. Cal.).

The former employees have three main complaints:
1. They weren’t paid for “donning and doffing,” i.e., time spent putting on and taking off mandatory personal protective equipment

2. They were not allowed rest breaks and meal breaks as required by California labor law

3. They did not receive paychecks in the form and at the time California law requires

Donning and doffing

The donning and doffing complaint is directly related to rest and meal break complaints.

“The plaintiffs allege in their first claim that the defendants owe them wages for the time they spent on these on-duty meal breaks because they were required to put on, take off and clean protective equipment during this time.

In their second claim, the plaintiffs claim the defendants did not count time the putative class members spent putting on, taking off and cleaning protective equipment when calculating overtime pay. And in their third claim, the plaintiffs point to a section of the wage order requiring an employer to pay one hour of pay at an employee's regular rate for each workday on which a duty-free meal period was not provided.”

Why was the donning and doffing complaint denied? It would seem that not everyone dons and doffs equally. And not all judges are equal (see National Beef donning and doffing lawsuit below).

Apparently about half of the named plaintiffs and putative class members in the Taylor Farms depositions said they were on-the-clock while donning and doffing. However, not all employees are required to wear the same protective equipment, so donning and doffing doesn’t take the same amount of time for everyone. And time to put on and take off gear varies, depending upon locations.

Ironically, Taylor Farms requires workers to wear shirts that say “I Love Taylor Farms,” according to journalist Brian Tierney (counterpunch; January 9, 2014). They also wear snow pants overalls to protect them from cold temperatures in the plant.

Tierney said that Taylor Farms consistently violated California labor laws and treats its workers unfairly, to put it mildly. He describes employees on the tomato line working for $8 per hour up to 17 hours a day and five days a week or more during the busy season. In the past five years, Taylor Farms has accumulated over $80,000 in OSHA penalties including the ongoing class-action case for requiring employees to work off-the-clock and without pay. Tierney said that workers told him “they are denied workers’ compensation when they are injured on the job. And workers also say that complaining about safety issues or not being paid for overtime often results in being fired.”

Experienced labor attorneys have reached settlements with many donning and doffing lawsuits such as National Beef, which is similar to that of Taylor Farms. Employees claimed they were not paid for removing protective gear, waiting to clean equipment or cleaning the equipment. National Beef will reportedly pay around $350,000 to resolve claims.

The lawsuit noted that some employees are paid “donning and doffing” pay of up to nine minutes...

California Truckers Just Want to Be Paid

Compton, CA Eight months after two California truck drivers were handed a favorable finding from the Office of the California Labor Commissioner, a class-action lawsuit has been launched against a private freight hauler based in Carson accused of incorrectly classifying its drivers as independent contractors. The California labor lawsuit seeks to represent anyone who may have hauled freight for the defendant over the previous four years.

The lead plaintiffs in the proposed class action are Jose Vasquez of Lynwood and Elmer Montoya of Bellflower. The two truckers at one time were employed by Sterling Express Services, Inc. (Sterling).

According to the original complaint, Sterling was alleged to have deducted fuel, registration, parking and other costs related to the operation of the trucks from the pay packets of the two drivers. Vasquez, who drove for Sterling from August 2009 to August 2011 and Montoya, who worked for the firm from March 2012 through January 2014, both allege that Sterling failed to make timely wage payments and failed to pay overtime, a violation of the California labor code.

According to the California labor law class action, drivers felt that even though their employer wrongly (or so it is alleged) classified them as independent contractors, drivers did not have the independent authority to reject assignments from company dispatchers over fears of retaliation from dispatch. “If the truck drivers rejected an assignment, then dispatchers would retaliate against them,” the lawsuit states.

The Long Beach Press-Telegram (5/7/15) reports that in the fall of last year, the Office of the California Labor Commissioner ruled that Sterling had, indeed, wrongfully classified Vasquez and Montoya as independent contractors and ordered the employer to pay the two men lost wages and damages in accordance with California labor employment law. To that end, the compensation order for Vasquez was $74,000 with $128,000 going to Montoya.

The proposed class action would cover any driver working for Sterling who may have moved cargo on behalf of the firm to and from ports in Los Angeles and Long Beach from the date the proposed class action was filed, and extending back four years.

Employers will often attempt to avoid paying overtime and benefits by wrongfully classifying employees as independent contractors, yet requiring them to adhere to policies and protocols more in accordance with an employee/employer relationship dynamic. For example, a true independent contractor would only need to fulfill commitments as reflected in a contract, would have the right to refuse assignments, and would also have the capacity as independent operators to accept assignments from other firms.

There have been several examples where the Office of the California Labor Commissioner has taken employers to task for misclassifying employees in violation of California and labor law. The Long Beach Press-Telegram notes that in March 2013, California Labor Commissioner Julie A. Su ordered Seacon Logix, a freight hauler and shipping company based in Gardena, to pay four Port of Long Beach drivers a combined $100,000 representing withheld wages, interest and penalties.

The California labor lawsuit was filed May 6 at Los Angeles County Superior Court in Compton. Case information was not available at press time.

AT&T Faces California Labor Lawsuit

Los Angeles, CA AT&T faces a California labor lawsuit alleging violations of state and federal labor laws. The lawsuit was filed in California court on behalf of training specialists, who allege they were misclassified as exempt from overtime pay in violation of the Fair Labor Standards Act and California labor law. The lawsuit is just the latest to be filed alleging California employers violate California state labor laws in their treatment of employees.

The lawsuit (Walton v. AT&T Inc., Case No. 2:15-cv-03716, in the US District Court for the Central District of California, Western Division) was filed on behalf of AT&T training specialists and delivery workers in California and across the US. Plaintiffs allege they were misclassified as exempt from overtime pay and therefore were denied overtime wages that they were entitled to.

“Pursuant to a centralized, company-wide policy, pattern, and/or practice, AT&T has unlawfully classified Plaintiff and other Training Specialists as exempt from overtime payments under federal and state laws, despite the fact that they should have been classified as nonexempt,” the lawsuit alleges (as found in court documents). As such, training specialists were not paid for all hours worked, including time above 40 hours in a week. The plaintiff alleges AT&T

Furthermore, the lawsuit alleges that AT&T did not keep accurate work records.

The named plaintiff, Wendell Walton, alleges he was employed by AT&T from July 2000 through the present and worked as a Senior Training Manager Design. Despite regularly working more than 40 hours in a workweek, Walton claims he was not paid for any hours in excess of 40.

The lawsuit refers to AT&T’s practices as “widespread, repeated, and consistent.” Plaintiffs seek damages, including liquidated damages, a declaratory judgment that the practices are unlawful, and attorneys’ fees and costs.

Under state and federal law, all non-exempt employees must be paid for overtime hours worked. Employees who are eligible for overtime pay but are misclassified as exempt are able to file a lawsuit to recover unpaid wages.

According to The Associated Press (4/28/15), AT&T also faces a $100 million discrimination lawsuit after a president at the company was found to have been using his work phone to send racist texts.

Summer Intern? Maybe You Should Be Getting Paid

Los Angeles, CA Increasingly, unpaid interns are reporting that they are treated as unpaid employees and their employers are violating California labor laws and the FLSA (Wages and Fair Labor Standards Act).

Caregivers Still Waiting for California Overtime

Los Angeles, CA Charlene quit her job as a retail supervisor to look after her mother who requires care 24/7. “I don’t have any savings or other means of income so I was counting on a fair wage and California overtime when the IHSS kicked in this past January,” says Charlene.

The California In-Home Supportive Services program (IHSS) was put on hold mid-January by the Brown administration due to a judge striking down federal regulations that would have allowed the change nationwide, according to the Sacramento Business Journal. So about 400,000 workers are now in limbo: they will continue to be paid an hourly wage from 2014 and will have to wait for any overtime compensation.

“My mother has physical and mental disabilities and can’t be left alone,” Charlene explains,” but I am not about to put her into a long-term nursing facility where she will waste away.” If and when the Brown administration’s decision to deny California overtime is overturned, paying caregivers a fair wage and overtime would still save the government a huge amount of money.

If Charlene did place her mother in a skilled nursing facility, the annual cost is more than $65,000. According to a 2012-13 report from the Legislative Analyst’s Office, the annual cost for someone with an average number of IHSS hours is closer to $13,000.

“In addition to making $9 per hour and working about 14 hours a day without overtime pay, my checks are constantly delayed, even though I have direct deposit set up,” says Charlene. “The inconsistency of receiving my paychecks has caused me to pay interest on my monthly expense bills and extra bank charges. And stress. This whole system is so unfair and legal action is the only place where I can turn.”

According to responses (mostly women) from a PayScale salary survey, caregivers in the Los Angeles area receive an average pay of $9.96 per hour. Earnings can vary between $8.10 per hour and $16.48. Only one in eight respondents receives medical and dental coverage.

Dana (not her real name) typically works 13 or 14 hours a day, also without any overtime pay. She has been employed as a caregiver by 123Home Care for the past two years. “When the company hired me I agreed to $11 per hour with overtime after working more than 9 hours a day, or 45 hours per week,” says Dana. She is still waiting for overtime pay.

“The family I work for cut back on the nurse visits - from once a day to twice a week, but their mother is getting worse. I wound up working 70 hours one week up until a few months ago, when I reduced my schedule to 55 hours a week,” Dana explains. “I contacted my employer at 123Home Care regarding overtime pay. He told me that my regular pay rate is reduced because I work more than 12 hours a day and the balance is paid to me in overtime. I was never told that during orientation and I believe this company is violating California labor laws and the FLSA (Wages and Fair Labor Standards Act).

Charlene and Dana were hopeful this past March when President Obama said that his administration would soon announce the details of a reform to overtime rules nationwide. “What we’ve seen is, increasingly, companies skirting basic overtime laws, calling somebody a manager when they’re stocking groceries and getting paid $30,000 a year,” President Obama told the The Huffington Post in an interview. “Those folks are being cheated.”

More than 400,000 caregivers anticipate Brown’s ruling to be overturned on appeal. With $183.6 million in the current state budget and $314.2 million in Brown’s proposed 2015-16 state budget, clearly the money is there to pay Charlene and Dana and countless other workers the overtime pay they are entitled to. Given the cost of nursing homes and other care facilities, it would be a win-win situation for all…

For more information, here is the court ruling.

Stryker/Howmedica Agree to $3 Million California Labor Law Settlement

San Francisco, CA A labor class action rooted in California labor law has proven successful for plaintiffs following the announcement of a settlement between class participants and defendants Howmedica and Stryker. The settlement is worth $3 million.

According to court documents, lead plaintiff Tanner Trosper took exception to the fact that Stryker and Howmedica failed to reimburse sales associates for expenses such as mileage, telephone costs and other business expenses. Trosper, who worked as a sales representative for Howmedica from November 2008 through May 2011, held that such failure to pay business expenses was a violation of the California labor code and unfair competition laws observed by the state.

Trosper launched his California labor lawsuit class action in February 2013. The two sides in the dispute first met for mediation in February of last year, but were too far apart. Stryker also moved for summary judgment in the California labor employment law case, claiming that class members were employed by Howmedica of New Jersey and thus had nothing to do with Stryker. However, Stryker’s petition to the court failed when US District Judge Lucy H. Koh ruled that Stryker’s ties to Howmedica extended to matters of employment.

The California and labor law settlement would see 134 class participants paid an average gross payment of $22,000 each. The settlement deal allows for an incentive award of $7,500 paid to Trosper, who worked for Howmedica in its Stryker craniomaxillofacial division. Howmedica was purchased by Stryker from Pfizer several years ago.

“The settlement represents a very favorable result for class members,” the parties said in their jointly filed motion. “Despite disagreement between the parties over the issue of liability and the amount of damages, the parties were ultimately able to reach an agreement that awards class members substantial sums.”

Howmedica had instituted various policy changes in 2011 and 2012 with regard to reimbursement of business expenses to sales associates. However, prior to those changes, Judge Koh ruled there was sufficient evidence of a “blanket policy” of not reimbursing sales representatives - a violation of California employee labor law - thus allowing the class action to move forward. Class certification was granted on May 27 of last year.

In 2012, a settlement in a separate action was reached between Stryker and employees in its endoscopy, communications and instrument divisions over business expenses and reimbursement protocols. That settlement was worth $4.25 million.

The most recent case alleging an affront to California state labor laws is Tanner Trosper v. Stryker Corporation, case number 5:13-cv-00607 in US District Court for the Northern District of California.

California Labor Law: Yard Hostlers Not Getting Proper Breaks

Lancaster, CA Yard hostling might be an area of employment that people are not familiar with, but that doesn’t mean that yard hostlers don’t deserve proper meal and rest breaks. Unfortunately, some companies that employ yard hostlers are accused of not properly scheduling or providing meal and rest breaks because they are more concerned with boosting their profits. One lawsuit alleging California labor violations has already been filed, says Kitty Szeto, attorney at R. Rex Parris Law Firm, and more could certainly follow.

Yard hostling typically involves retailers that have huge facilities, such as Target, Walmart, Costco, or Home Depot. These companies don’t keep their products stored in the back of their facilities; they keep them at other facilities at remote locations. The large retailers then hire trucking companies or logistics companies to transport the product from the remote locations to their stores.

Yard hostlers are employed by trucking companies or logistics companies at these remote locations. Their job is to move the empty trailers around - the same trailers that later haul the product to the retail store - and dock those trailers so workers can fill the trailer with product before it is driven to the store.

“The large retailers pay the logistics companies and trucking companies by the number of trailers moved, so there’s an incentive to move as many trailers as possible,” Szeto says. “This means that yard hostlers are not given proper breaks until all their loads are done. Their lunch breaks are frequently late or interrupted because trailers need to be moved. It’s like a giant game of Tetris, moving the trailers around the yard and to the loading docks.”

There have not been a lot of lawsuits filed so far involving yard hostling, but that could certainly change. Employees have the right to uninterrupted breaks after a certain amount of hours worked. Employers have a duty to schedule breaks for employees, and ensure employees get those breaks.

“In some cases the company isn’t scheduling the breaks. They’re failing to provide breaks under California law.”

Employees in other industries have filed lawsuits alleging their employers failed to provide proper breaks. As more employees learn that their rights are being violated, more lawsuits involving yard hostling could be filed.

“We have one lawsuit currently pending,” Szeto says. “It's an area that’s ripe but hasn’t been saturated because people are not familiar with the job.”

American Apparel Hit with Proposed California Labor Law Class Action

Los Angeles, CA When American Apparel announced to the press an impending mass layoff, the imminent job loss was allegedly news to many of the employees about to be affected, according to a class-action lawsuit filed days ago in California. When the layoffs were triggered on or about April 1, affected employees were blindsided, with little notice and minimal severance. California labor law and the Worker Adjustment and Retraining Notification Act (both federal and state) hold strict tenets as to what is required when a worker is let go through no fault of his own.

The proposed class action also alleges that many employees who had little proficiency with the English language were pressured into signing separation agreements described in court documents as “paltry,” and were also allegedly pressured into signing separation agreements they were unable to understand that left them little recourse for legal claims after the fact.

According to various media reports, American Apparel claimed the layoffs were necessary to ensure the future health and viability of the company. The proposed California labor lawsuit, however, notes that various requirements related to adequate severance and notice of layoff were not properly followed.

The lawsuit noted that various state and federal statutes that require 60 days’ notice prior to a layoff or job termination were not followed, and severance terms were described as “unconscionable,” with some employees offered as little as $300 in severance.

“As American Apparel’s management was well aware, many of these employees receiving these agreements did not speak, read, or write English. Several of these employees did not read or write at all,” the lawsuit said. “Notwithstanding the same, American Apparel’s management insisted that these employees sign these agreements immediately, even if they could not read or understand them.”

The lawsuit also notes the layoffs and terms fly in the face of a retooled ethics policy released by American Apparel in the wake of the recent termination of American Apparel founder Dov Charney in December of last year amidst various allegations of sexual harassment.

The proposed California and labor law class action also alleged that the CEO and other top management within the corporation awarded themselves additional stock options and salary increases, while stiffing laid-off employees with minimal severance, or so it is alleged.

The lawsuit seeks 60 days’ worth of pay for each laid-off worker, as well as backpay and other benefits for the affected workers of American Apparel.

The case is Hirschberg et al v. American Apparel Inc., Case No. 2:15-cv-02827, filed April 16 in the US District Court for the Central District of California.

Subsidiary of Kaiser Permanente Hit with Overtime Pay Laws Class Action

San Diego, CA A class-action overtime pay lawsuit has been filed against Kaiser Foundation Hospitals, Inc. alleging senior systems administrators employed by the hospital(s) were purposefully misclassified in order to escape payment of overtime, as well as the issuance of meal breaks and other rest periods mandated by California overtime law and other employment statutes for non-management personnel.

Employees in the state of California who reach an earnings plateau, or who are working at a management job and thus paid an annual salary, are usually exempt from overtime pay: the thought being, a job commanding such a high rate of pay requires, from time to time, that extra hours should be expected and tolerated as necessary, without the need for additional compensation.

Some employers, however, have attempted to skirt around this by incorrectly classifying non-management personnel as exempt, in an effort to save dollars.

The overtime pay laws class action, filed in California in March, alleges that Senior Systems Administrators employed by Kaiser spent the lion’s share of their days performing non-managerial tasks. Such tasks included, as alleged in court documents, the repair and replacement of personal computers and servers in Kaiser call centers, installations of software and operating systems, password resets and other tasks that are considered by the plaintiffs to be non-managerial in nature.

It is also alleged in the overtime laws class action that employees serving as Senior Systems Administrators did not supervise other employees of Kaiser, which is usually a function of management personnel and therefore exempt from overtime pay according to the provisions of California overtime law.

It is sometimes the case that an employer will hire an employee for a job that is meant to be managerial in nature, and thus would be exempt from overtime pay. However, if the majority of tasks performed by the employee are non-managerial, with no provision or opportunity to supervise others, then the management profile of the particular job is suspect.

The lawsuit did not specify what damages are being sought by plaintiffs in the California overtime law class action. The lawsuit also alleges unfair competition, and failure to provide accurate, itemized statements in accordance with California labor statutes.

Kaiser Foundation Hospitals Inc. is a subsidiary of Kaiser Permanente and boasts 30 wholly owned community hospitals throughout California, Hawaii and Oregon. Plaintiffs are seeking various unspecified damages and a trial by jury.

The overtime pay laws class-action lawsuit is Bernard Howard et al v. Kaiser Foundation Hospitals Inc., Case No. 37-2015-00008539-CU-OE-CTL, filed March 12 and currently pending in the San Diego County Superior Court for the State of California.

California Labor Lawsuit No Piece of Cake

Torrance, CA A California labor lawsuit has been filed against a Beverly Hills bakery, alleging violations of California labor laws. The lawsuit accuses the bakery’s owners of abusive behaviors, including failing to pay minimum wage or overtime, retaliation, and human trafficking.

According to court documents, the lawsuit was filed in March 2015 against L'Amande French Bakery, which is owned by Ana and Goncal Mointinho de Almeida and has locations in Beverly Hills and Torrance. Plaintiffs allege the defendants abused US immigration laws to get workers into the country, lied to workers to get them to the US and forced employees to work in “illegal, oppressive, and discriminatory conditions as domestic servants, physical laborers engaged in landscaping and building maintenance, and retail bakery workers doing a substantial amount of menial work at Defendant’s French bakeries.”

To keep employees in line, the defendants reportedly told the employees that if they did not work, they would each owe more than $11,000. Further, the lawsuit alleges the defendants threatened and intimidated employees into lying during a state labor enforcement agency investigation.

The plaintiffs allege they were told by the bakery’s owners that if they moved to the US from the Philippines, they would work as skilled bakery chefs and managers. Instead, they were put to work painting, cleaning and landscaping at a rental property for $2 an hour. Some workers were also forced to sleep on the floor in the Almeidas’ laundry room. Workers who were in the bakery were at first required to work 13 hours per day, seven days a week with no overtime and no sick days. The lawsuit alleges employees were paid as little as $3 an hour.

“To conceal evidence of these wage and hour violations, Defendants altered or destroyed the workers’ timecards and told them not to accurately report their actual time worked,” the lawsuit alleges. The defendants also isolated workers from each other and prevented them from speaking their native language. Employees were reportedly told if they worked for the bakery for three years, their $11,000 debt would be forgiven.

The plaintiffs allege that when they spoke out about their abuses they were retaliated against, including being fired or being written up.

Among the plaintiffs is a woman who said she was hired to be a nanny but spent less than 20 percent of her time on nanny duties and was instead forced into domestic servant roles.

The workers say they were all brought to the US under the E-2 visa process, which allows wealthy foreign nationals to bring foreign workers to the US to be engaged in executive or supervisory duties, or because of specialized skills essential to a company’s success.