California Labor Law News
Class Action v. Barnes & Noble Has Roots in California Labor Lawsuit
The lawsuit is being fought as a violation of the Fair Labor Standards Act (FLSA). According to court documents, prior to 2005, Barnes & Noble classified all its assistant store managers as FLSA exempt, which meant they did not qualify for overtime pay for hours worked over and above a standard workday or workweek. Most managers, who are paid a salary and perform managerial tasks, are properly exempt in this fashion. However, Barnes & Noble was hit with a lawsuit in California citing violations of California labor law when the assistant store managers cried foul.
The assistant store managers in the California case alleged they did indeed perform tasks that were non-managerial in nature. They also, even with the title of assistant manager, had no authority over other personnel.
That California labor lawsuit prompted Barnes & Noble to reclassify its assistant managers in California as nonexempt - meaning they could qualify for overtime pay. However, it’s been reported that Barnes & Noble did not make that same change elsewhere in the country until much later.
Eventually, Barnes & Noble reclassified all of its assistant mangers at locations in other states to nonexempt. That happened in 2010, and was the basis for Barnes & Noble to petition for summary judgment in the lawsuit that was originally brought in 2005 as an action citing California labor code. To wit, the alleged FLSA violations ended in June 2010, but the wider lawsuit was not filed until January 2013. The defendants cited the lawsuit as falling outside of the FLSA’s two-year statute of limitations, and thus was time-barred.
Not necessarily so, said US District Court Judge John Koeltl. That’s because the FLSA two-year limit extends to three years if there is proof, evidence or suspicion that the violation was willful. And given that Barnes & Noble had reclassified assistant managers in California as the result of California and labor law in the Golden State, but had not done so for a period of five years nationally, suggests that there “is at least some evidence that a jury could consider on the issue of willfulness,” the judge said.
The three named plaintiffs in the current lawsuit based out of New York (after having its roots in California labor employment law) are former assistant store managers for Barnes & Noble. The plaintiffs note that they did perform some activities that could be interpreted as the type of work typically performed by a manager. However, they also said the tasks they performed were more routine in nature - and that they also performed tasks performed by other nonexempt employees, such as working cash or handling product returns.
The case is Steven Trimer et al. v. Barnes & Noble Inc. et al., Case No. 1:13-cv-00579, in the US District Court for the Southern District of New York.
California Labor Law Also Applies to Seniors
Greg and his wife Cathy retired a few years ago and like many seniors found part-time employment to supplement their Social Security checks. They were employed as seasonal caretakers for two separate companies with similar policies. The first year they were hired by California Land Management in Palo Alto, a company that manages federal parks.
“They give you so many hours per week to work and give you a campsite to live at so you can take care of the campground,” Greg explains. “We were only hired to take care of the campground - check the campers in, collect their money and clean up after they leave.”
Everything was fine for about a week. The couple (in their mid-60s) were promised they only had to work 30 hours a week at the most, but soon they were putting in more than 40 hours a week. “The manager gave us a time card but he refused to take them if we didn’t fill them out they way they want it,” says Greg. “He wouldn’t accept our time cards if we clocked in more than 40 hours.”
This year they worked for another company. “Before we signed on, we made sure they understood we only wanted to work 30 hours per week,” says Greg. “Again, it was OK for the first week but they got us to do more work. We cleaned bathrooms along with the usual job, and there was a lot more paperwork involved collecting fees. They wanted us to repair stuff; we had to paint the building that was not agreed on ahead of time. At this place we didn’t even get time cards.
“When I complained, the manager (he runs five campgrounds) got mad at me, took me aside and said we were ‘hiding in our trailer and not working smart.’ In other words he insinuated that we are lazy and stupid. So we packed up and left. But we couldn’t fill out a time card and we were never paid California overtime, which we kept track of.”
Greg figures he and Cathy are owed one week of work - 30 hours each - and overtime pay. And Greg says they aren’t the only seniors being taken advantage of.
“We know one couple in their late 70s who are working 50 hours per day,” he adds. “And we were told that we couldn’t talk to other ‘camp hosts.’ I figure they don’t want us to file a joint complaint.
“I mostly want to get this story told to help other seniors and stop this practice. It is pretty outrageous, especially because it comes down to the federal government who contracts these companies.”
Greg and Cathy wrote a letter to the main company that runs the campgrounds, the district manager and the forest service, below.
To Whom It May Concern:
This letter is to inform you that we are unable to continue our employment contract at Big Cove Campground CA with Thousand Trails Management Services due to the [manager’s] verbal harassment, being ordered not to communicate with other employees, a requirement to work overtime and on days off without compensation, and falsification of timecards that we were not allowed to see or sign. Being of Hispanic decent, I believe this is prejudice on the part of the manager.
We are very sorry to be leaving. We loved the campground and the campers. We strived to take superior care of the grounds. Campers and forest service employees often complimented us on our care of the campground. We will continue to look for employment as Camp Hosts and we hope at a future date we can work for Thousand Trails again.
Sincerely,
Greg and Cathy Villalobos
Plaintiffs Ring the Taco Bell in California Labor Lawsuit
At issue in the California labor law dispute are meal breaks for employees of Taco Bell that are alleged to have been observed outside of legislated parameters mandated by the California labor code.
To wit, California labor employment law holds that non-exempt employees in the state are entitled to a meal break lasting no less than 30 minutes and taken without the need or requirement to perform any work, prior to the end of their fifth consecutive hour of work. However, the class action against defendant Taco Bell claims that plaintiffs are denied an opportunity for a meal break until they have worked five full hours.
According to court records, the California labor lawsuit has underpinnings in an action originally filed by two former employees of Taco Bell, Lisa Hardiman and Sandrika Medlock. The two plaintiffs claimed meal break and overtime violations in the original lawsuit in 2007. The lawsuit was consolidated with other cases in 2009, with plaintiffs starting to lobby for certification as a class action two years after that, in 2011.
That certification for the so-called late meal break class was achieved last year.
In one of the latest developments, the late meal break class petitioned US Magistrate Judge Stanley A. Boone last month to grant the class summary judgment with regard to the late meal break claims, citing alleged violations of the Private Attorney General Act for the State of California (PAGA).
“The court certified the meal period claims because Taco Bell implemented and enforced a common meal period policy/procedure that failed to provide class members with timely meal periods as required under the California Labor Code,” the motion said.
2014 marks the 10th anniversary since the PAGA was enacted in the state. In sum, the California labor employment law statute provides private citizens an avenue for pursuing civil penalties on behalf of the California Labor and Workforce Development Agency. In so doing, private citizens have the opportunity to enforce California labor code.
The amended California labor lawsuit will represent all nonexempt hourly paid Taco Bell employees working in the state of California from September 7, 2003 to July 1, 2013. The criteria is that the employees would have worked more than six hours in a day, and who did not receive the required meal break after working more than five hours.
It has been reported that the class could involve 28,000 class members in the California labor lawsuit. The case is In re: Taco Bell Wage and Hour Actions, Case No. 1:07-cv-01314, in the US District Court for the Eastern District of California.
Disney Faces Proposed Class-Action California Labor Lawsuit
The California labor lawsuit has been brought by Reykeel Zorio, a former nonexempt employee of Disney. According to court documents, the California resident was hired by Walt Disney Worldwide Services Inc. in 2011 and commenced his employment at Disneyland Resort. His employment status was transferred from Walt Disney Worldwide Services Inc. to Walt Disney Parks and Resorts US Inc., according to the complaint.
The plaintiff claims that Walt Disney Worldwide Services Inc., which undertakes the finance data processing system - and Walt Disney Parks and Resorts US Inc., the entity that manages Disney parks - did not properly pay him the accrued vacation time he claims was his due when he left Disney’s employ. Zorio claims this oversight is a violation of California labor code.
He doesn’t stop there. Zorio also claims that Disney, or at least those entities of Disney named in the putative class action, failed to immediately provide to employees who had been fired or terminated wages that were their due, as well as vacation time and other forms of compensation as stipulated under California labor employment law.
California and labor law holds, according to the complaint, that employees who resign are paid the aforementioned compensation within 72 hours of submitting their resignation. The California labor lawsuit claims that this was not done.
“Moreover, the final wages that defendants eventually paid to each plaintiff did not include all of the wages, vacation time and other compensation that were in fact due and owing to plaintiff,” the complaint said.
No fewer than six iconic Disney properties, all based in California, are named in the lawsuit: Disneyland Hotel, Disney Grand Californian Hotel & Spa, Disney’s Paradise Pier Hotel, Downtown Disney District, Disneyland Park and Disney’s California Adventure Park. To that end, the proposed class-action lawsuit would include any and all former nonexempt employees of the two Disney companies named as defendants, who might have worked at any of the six named properties over the preceding four years. Class members are expected to exceed over 500 in number, and would be entitled to wages for each day they were not paid at their regular rate for up to 30 days from the time they were due, according to California state labor laws.
The three causes of action include damages for unpaid vacation pay, restitution of wages and disgorgement of profits due to fraudulent, unfair and illegal business practices, according to the complaint.
The California labor lawsuit was filed June 19. There was no comment from Mickey, Pluto or Goofy, who were not named as defendants. The case is Zorio v. Walt Disney Worldwide Services Inc. et al., Case No. BC549292, in the Superior Court of the State of California, County of Los Angeles.
California Labor Attorney: Pregnancy Discrimination Not Rare
According to Broslavsky, his client was an employee at a Walgreens in Hollywood when she became pregnant. The client worked at the Upmarket Café, performing customer service duties, making sandwiches and smoothies, and cleaning up.
A few months after this incident, Broslavsky’s client became pregnant. Initially, Broslavsky says, she was afraid to tell her boss, concerned that the previous termination had been because of her coworker’s pregnancy. Eventually, however, she had to disclose her pregnancy. When she was around six months pregnant, she was allegedly taken into the Loss Prevention Officer’s office and accused of taking drugs.
“They wanted her to sign a statement that she took drugs but she refused, saying she did not use drugs and especially had not done so while she was pregnant,” Broslavsky says. “Even though she refused to sign the statement, she offered to take a drug test but they said no to the test. They continued to try to convince her to sign the statement and she continued to refuse, so they sent her home, suspended her and told her she’d be investigated.”
According to Broslavsky, a week after her suspension, his client phoned her employers and was told she was still under investigation. She then went back to the store and was allegedly told she was fired for creating a hostile work environment. She very quickly found a lawyer and filed a lawsuit alleging wrongful termination against her employers. Broslavsky says that the lawsuit is still in the early stages and he has witnesses who will testify his client was fired for being pregnant.
Unfortunately, Broslavsky also says pregnancy discrimination complaints are not rare. In fact, he’s working on other cases alleging pregnancy discrimination. One positive is that if there is some evidence someone was fired for pregnancy, the burden is on the employer to prove there was another reason for the firing.
It is important for employees to remember that just because they work in an at-will state, that does not mean their employer can fire them for discriminatory reasons. In such cases, lawsuits can be filed against employers alleging the termination violates employment laws.
Broslavsky’s client is seeking damages for lost income, wages and emotional distress. Given the circumstances of her case, she is not seeking reinstatement to her job.
California Labor Lawsuits and Settlements: From Apple to Janitorial
The Apple lawsuit was filed last year. Apple requested the lawsuit be thrown out, but last week US District Judge William Alsup said a trial would be helpful to learn more about the nature of the employee searches, according to gigaom.com. The former Apple employees allege they waited for up to 30 minutes a day without pay to have managers search their bags for stolen merchandise - whenever they clocked out for lunch and at the end of their shift. Apple managers called the searches “Daily Downloads,” which also included “personal technology checks,” whereby managers compare employees’ Apple device serial numbers to a recorded list. Apple said the search is optional for its 26,000 retail staff, meaning they don’t need to bring a bag to work. Judge Alsup didn’t see it that way, pointing out that “Apple employees may need to bring a bag to work for reasons they cannot control, such as the need for medication, feminine hygiene products, or disability accommodations,” as detailed by gigaom.com.
Two janitorial companies, NLP Janitorial and Coast to Coast West, were slapped with more than $1.5 million in citations by the California Labor Commissioner for allegedly engaging in multiple wage violations, including failure to provide rest or meal breaks, or pay minimum wage or overtime wages, and misclassifying 52 workers as independent contractors. In a news release, Labor Commissioner Julie Su said, “There is a high cost to unfair competition, and these 52 workers bore the brunt of it when their earned wages were stolen from them. Honest janitorial employers struggling to compete against scofflaws also pay.” The two janitorial companies compete for cleaning services to hotels, resorts, theater chains and restaurants.
California labor law settlements
And plaintiffs who filed an overtime class-action lawsuit against Compass Health Inc., asked a California federal judge to grant final approval of a $1.1 million settlement. The proposal would require Compass to pay up to $700,500 to about 2,500 current and former hourly nonexempt employees who worked for the group in California from March 29, 2009 until January 6, 2014.
A $4.75 million California labor law settlement was reached by Universal Alloy Corp. (UAC), a large maker of alloys for the airline industry, based in Anaheim. Plaintiffs in the class-action lawsuit alleged that UAC violated the labor laws regarding overtime and minimum wage payments. The manufacturer was accused of paying factory employees only according to their scheduled shift hours, rather than hours actually worked. Further, the company failed to add bonuses to regular rates of pay, which resulted in overtime miscalculations. A total of 770 class members will share in the settlement.
To avoid stiff penalties, California employers have been advised by the Office of the Labor Commissioner and Labor Law attorneys to prepare for the minimum wage hike this July - it will increase one dollar to $9 per hour.
Proposed California Labor Lawsuit Settlement Worth $4.75 Million
The California labor lawsuit settlement is worth $4.75 million, with the California class reported as reaping the greatest benefit from the settlement. The lawsuit was brought in 2013 and filed in California Federal Court. Universal Alloy Corp. (UAC) maintains headquarters in Canton, Georgia, but also has a large facility at Anaheim.
According to court documents, lead plaintiff Fabio Gonzalez toiled at UAC’s Anaheim plant for about six years, with one of two additional plaintiffs having worked at the Anaheim facility for longer than seven years. A total of 770 class members will share in the settlement, with participants split almost equally with 390 in the California class and the remaining 380 in a class identified with the Fair Labor Standards Act (FLSA).
The California class, however, stands to reap the greatest rewards under California labor employment law, with each California class member expected to receive $7,476 in compensation, v. $840 on average for the FLSA class.
The defendant said that it agreed to settle, in spite of admitting to no wrongdoing and denying the allegations, partly due to the disruption the lawsuit was causing to its business and operations.
In their California labor code lawsuit, plaintiffs alleged that UAC paid factory employees only according to their scheduled shift hours, rather than hours actually worked. There were also allegations that UAC failed to incorporate bonuses into regular rates of pay, which would have resulted in what was described as a systematic miscalculation of overtime, an alleged violation to statutes under California and labor law.
The California labor lawsuit also accused the company of failure to maintain adequate wage statements and records, and failure to provide the required meal and rest breaks as mandated under FLSA guidelines and California labor code.
Plaintiffs in the action seek certification for all current and former nonexempt employees who toiled at the California plant from May 10, 2009 to the present day. They also request certification for a separate, nationwide opt-in class of UAC workers for the same time period, in connection with the company's alleged FLSA violations.
“This settlement provides a substantial recovery, including 100 percent of the alleged underpaid overtime and minimum wages based on defendant’s allegedly improper [conduct],” the plaintiffs state in their proposed settlement motion pertaining to California employee labor law.
US District Judge James V. Selna will undertake judicial review and approval of the proposed settlement. Plaintiffs have requested a hearing for June 16.
The California labor lawsuit is Fabio Gonzalez v. Universal Alloy Corp. et al., Case No. 8:13-cv-00807, in the US District Court for the Ce
Exotic Dancers Bring California Labor Lawsuit
The San Jose Mercery News (4/30/14) reports that 11 former dancers at the Pink Poodle strip club filed a lawsuit alleging that they were treated as independent contractors instead of employees and were not paid minimum wage or overtime. Furthermore, because they were classified as independent contractors, they were not eligible for employee benefits. The lawsuit also alleges that some women were forced to pay the club so they could dance there and were threatened with retaliation if they complained.
The lawsuit was filed in Santa Clara County Superior Court, according to CBS San Francisco (5/1/14). The defendants are reportedly the Kuzinich family, owners of the Pink Poodle.
Lawsuits have been filed by dancers across the country alleging the owners of various strip clubs have failed to pay their dancers minimum wage or overtime, in violation of various labor laws. In 2012, a club in California settled a similar lawsuit for $12.9 million, according to Time (1/15/14). In 2013, dancers from the Penthouse Executive Club settled their lawsuit with the club for $8 million. They also alleged unpaid wages.
Also in 2013, a lawsuit was filed by Felicia Harmon and others against Foxy Lady, Inc. and Arthur Dillard alleging that not only did Foxy Lady not pay its dancers minimum wage and overtime, it did not pay dancers wages at all and forced the plaintiffs to pay to work at the Foxy Lady. The lawsuit (case number 1:13-CV-3517-TWT, in the Northern District of Georgia Atlanta Division) seeks to represent current and former employees of Foxy Lady.
Court documents allege that despite having specific work schedules, specific times and manners for dancing, regulations for attire and set prices for dances, the Foxy Lady classified all its entertainers as independent contractors. The plaintiffs say they were also required to pay a “bar fee” so they could work any given shift and were charged fines or fees for being late for work or violating any of the Foxy Lady’s rules. The lawsuit further alleges that the entertainers were required to attend mandatory meetings but were not paid for being at those meetings.
With so many dancers filing lawsuits alleging they have been misclassified as independent contractors, a federal judge ruled that dancers at Rick’s Cabaret in New York should be paid minimum wage and were improperly classified as independent contractors even though they should have been classified as employees, ABC News reported (9/12/13). That lawsuit was filed in 2009.
The Pink Poodle lawsuit is Coleman et al vs Pink Poodle Enterprises et al, case number 114CV264315.
Affected Workers Try to Put the Kibosh in Bosch Attempt to Dismiss
There are also allegations that Bosch directed the foreign workers to repay tax refunds. The defendant attempted to have the lawsuit dismissed. However, the plaintiffs argued in California federal court last month against the granting of any motion to dismiss.
According to court documents, the lead plaintiff in the case was hired by the American subsidiary of Robert Bosch GmbH as an engineer and came to the US from India on a work visa. Suraj Kamath alleged in his November 2013 lawsuit that Bosch announced in 2012 that all non-US citizens employed by the company were required to repay all tax refunds across a four-year period from 2006 to 2011. The employer, according to plaintiff documents, remitted income payments on behalf of non-US citizens to taxation authorities.
“Bosch informed plaintiff that, if he did not sign a form declaration promising to pay Bosch the full amount of his tax refunds, Bosch would fire him, require him to return to India, make his life miserable, make sure that his life and career would be destroyed, make sure that he would not find another job anywhere and pursue criminal and civil lawsuits against him,” the complaint said.
The California labor lawsuit is Suraj Kamath v. Robert Bosch LLC et al., Case No. 2:13-cv-08540, in the US District Court for the Central District of California.
Meanwhile, the state’s driven labor commissioner is taking adherence to the California labor code to new heights with an awareness campaign that is intended to bring the message of fair and equitable pay and working conditions to low-wage workers throughout California.
“Immigrant workers in low-wage industries are especially vulnerable to wage theft, but may not be aware of their rights, may fear retaliation, or may mistakenly believe that they are not protected,” said Labor Commissioner Su, in comments published in an official state news release (4/30/14). “Another barrier is lack of trust in government or understanding of how the Labor Commissioner’s office can help. This campaign aims directly at these barriers by dispelling myths and educating workers on how to fight wage theft.”
The awareness campaign, which will be distributed through print, electronic and social media, is an addendum to increased enforcement of California labor employment law by Su’s office and that of the Division of Labor Standards Enforcement, which falls under the Department of Industrial Relations (DIR).
Violations to California and labor law not only cheat an employee out of earned pay, meal breaks and rest periods, but also provide the company responsible with an unfair advantage over those competitors abiding by the rules.
“The mission of the Department of Industrial Relations is to protect all workers with comprehensive labor laws and proactive enforcement throughout the state,” said Christine Baker, DIR Director. “This campaign increases familiarity with workers’ rights and employer’s responsibilities, and supports our efforts to level the playing field for law-abiding businesses.”
When the California labor code is not followed, a California labor lawsuit often results.
Age Discrimination Grounds for California Labor Lawsuit
Even though California is an “at will” state (meaning that you can be fired at any time, for any reason, unless that reason is illegal), under California and federal employment laws employers cannot fire someone for age discrimination if the person is at least 40 years old.
Suzy says that her supervisor started asking her a few years ago when she was going to retire, even though everyone told her that she was the best organizer the union had. “I was an external organizer, I knocked on doors to get people to join the SEIU local 521 union,” she says. “The union comprises 2.5 million members nationwide and here in the valley about 80,000 members. I recruited service employees, from social and mental health workers to child care providers to janitors.”
Suzy was involved in a car crash at work and was diagnosed with whiplash, but after just a week off she was told in an e-mail from her supervisor that if she didn’t return to work by a certain date she would be terminated.
“Unbelievably I got into another car crash just a few weeks after returning to work. I was driving but I wasn’t at fault either time and that is on the record. This time I asked for PTSD treatment because I was afraid to drive. To make a long story short, Workers Compensation sent me to their doctor who said I was ready to go back to work, against my doctor’s orders.
“I wasn’t expecting at all to be fired. I just got a letter that said my position was terminated and I had to move my belongings from my desk or they would do it for me. And they said my health insurance was soon to be terminated; all I could do was sign up for COBRA, which would cost me $3,000 per month. I still have to figure out how to get my pension.”
Suzy believes she was fired because of her age and her medical bills. On top of her Workers Compensation claim for back and neck injuries and now PTSD, she is also diabetic: combine that with her age and Suzy believes her union now considered her a liability rather than an asset.
“What organizers do is very hard work and I typically worked 60-80 hours per week; I was paid salary and never got paid California overtime, nor was I expecting to get compensated because I signed a contract. I expect my union to follow their contract and the California labor code - they should know better. I heard that I was replaced by someone in her 30s and that is a sure sign of age discrimination.”
After Suzy found out that she was replaced by someone more than 30 years younger, her next step was to file a California Labor Lawsuit. According to the Equal Employment Opportunity Commission, age discrimination charges have soared since 2008, up to 25,000 more complaints a year.
Age discrimination claims have been referred to as “a vampire lawsuit - an emotional energy eater.” But filing a wrongful termination suit can hold former employers liable for their illegal behavior and get the compensation you deserve.
Recently a former maintenance worker (over 55 years of age) filed a California wrongful termination suit. He suffered an injury at work - where he had been employed for 25 years - and his doctor restricted his lifting to less than 50 pounds. The company was OK with that but a few years later his hours were cut. In his lawsuit, the employee said he was fired based on his age and disabilities. He claims that age discrimination was the only reason he was terminated from his job. The company, on the other hand, denies any wrongdoing. The man is asking for damages for lost wages, punitive damages, cost of the suit damages, attorney’s fees and other unspecified damages.
In February 2014, a 66-year-old man was awarded $26 million by a Los Angeles jury that determined he was discriminated against and harassed based upon his age by his supervising managers at Staples. Bobby Dean Nickel was 64 when Staples fired him, despite receiving excellent job reviews for nine years. In his lawsuit Nickel claimed that his mangers wanted to discharge older, higher paid employees, and that he was the butt of jokes at staff meetings, often called an “old coot” and “old goat.”
Nickel stuck to his guns and refused to resign. The situation worsened: false accusations and more harassment came from his manager and co-workers, and he was suspended for taking a 68 cent bell pepper from the company cafeteria, according to the lawsuit. And a receptionist told Nickel she was ordered by management to provide a false statement about his conduct but she refused to do so. Nickel’s lawyer, Carney Shegerian, said, “This verdict and the justice served will hopefully put employers on notice that they cannot discriminate against employees based on age.”
Suzy is looking forward to her day in court…
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