Burbank Attorneys Turn the Tables and File California Labor Lawsuit

Burbank, CA Usually it’s the attorneys that undertake for plaintiffs who have been wronged by employers circumventing California labor law. However, in this case, an attorney’s association has launched a California labor lawsuit against the City of Burbank, alleging the City reneged on an agreement over retirement contributions.

According to the Burbank Leader (2/21/14), the Burbank City Attorneys Association (BCAA) alleges that the City of Burbank had agreed some time ago to pay a portion of the employee’s retirement contributions. However, the lawsuit alleges that Burbank failed to live up to that commitment.

The BCAA is comprised of 10 attorneys and a paralegal who are employed by the City of Burbank to perform and undertake various legal functions on behalf of the well-known California city. The association, according to the report, was formed about a year ago.

The California labor lawsuit, however, doesn’t appear to be singularly about the BCAA. Rather, the action could reach farther, philosophically at least, into the various employee groups within the City of Burbank, with an issue that has roots as far back as 1985, long before the BCAA was formed.

According to court documents, the Burbank City Council had previously committed to the payment of the employee contribution on behalf of members of the California Public Employees’ Retirement System (PERS). The lawsuit holds that there was “no sunset provision” in the agreement.

That all apparently changed in 2011 when the city manager, according to the lawsuit, announced that the contractual perk was coming to an end. To that end, since July of 2011 city employees have been required to pay part of their employee contribution, with the city’s goal - or so it is alleged - to have employees pay the full amount, which is eight percent. Presumably, Burbank would pick up the remaining 92 percent as the employer.

The city has defended the change, noting that municipalities across California continue to seek ways to find savings in a state still reeling from debt and economic pressures. Burbank City Manager Mark Scott told the Burbank Leader such a practice is becoming standard in the public sector. “Being able to make these agreements with virtually all our bargaining units has allowed the city to stay solvent to the point where we haven’t had to reduce service levels like so many other cities have,” Scott said.

The City was surprised and unhappy over the lawsuit, and apparently didn’t see it coming. However, the BCAA was formed, according to the report, only after the City suggested to its legal team that they should organize in order to negotiate salary increases. The attorneys complied, and entered into salary negotiations this past summer as an association after their salaries had been frozen for five years. Talks broke down as the two sides were too far apart. An arbitrator appointed by the state in October recommended a pay increase of 1.6 percent for the current fiscal year, while also requiring association members to pay half of the employee pension contribution. Currently, association members pay two percent.

In its lawsuit, the plaintiffs claim that the City’s requirement is illegal and constitutes a breach of contract, among other allegations of circumvention around California labor employment law. “Once the city attorneys performed services in reliance on the city’s contractual promise to provide the PERS benefits on retirement, the city is contractually bound to honor that obligation,” the lawsuit states.

The lawsuit seeks recovery of the “wrongfully deducted monies,” plus interest, along with a declaration that the city’s action is illegal and injunctive relief prohibiting the practice in the future, according to the lawsuit. The lawsuit lists five causes of action, including breach of contract.

It is not known if any agreement or settlement stemming from the BCAA lawsuit would also affect the fortunes of other Burbank city employees who would otherwise also be affected by the city’s policy on employee retirement contributions, which could be a contravention of California labor law.

Not Withholding Taxes from Employee Violates California Labor Law

San Diego, CA Fabiola was hired as a part-time desk clerk and received her paycheck every two weeks, but her employer wasn’t deducting taxes. It wasn’t until Fabiola was wrongfully terminated that she was told her taxes were not withheld because she was an independent contractor. But Fabiola knows her employer was violating California labor laws and she is now looking into a California labor lawsuit.

“I gave my social insurance number and all other necessary documents to the accounting department when I was hired at this resort hotel,” says Fabiola, who was paid hourly. “There is no doubt that I was a paid employee and not an independent contractor.”

After receiving a few paychecks, Fabiola asked why taxes weren’t being deducted. “My manager said it was better for me, that I would make more money this way,” she says. “I didn’t want to make any trouble - I didn’t want to lose my job - so I didn’t ask again.”

Fabiola continued working for about six months, until she was asked to work the graveyard shift. “Again the manager told me that I would make more money so I asked him again about tax deductions,” she says. “He got mad at me and got even madder when I declined to work graveyard.”

Just days after that confrontation, just before Fabiola was getting into her uniform, her manager said that she wasn’t on the schedule. She asked him why she wasn’t working, what was going on? “He told me that business had slowed down and they had to cut back my hours but to please be patient,” she says.

“I called a few days later but this time the manager said I was fired,” says Fabiola. “What had I done wrong? In the six months I worked here I never had a complaint. I called the lady in accounting - she signs the paychecks. I explained to her that I had been fired and asked her why she never took taxes off my checks. She said that I had to speak to the manager.

“I called the manager and said that I had to notify the Labor Department because I have been fired without a reason and I asked him again about my taxes. He replied, ‘It was because you were rude to a customer.’ I knew he was lying.”

Soon after she was wrongfully terminated, Fabiola received a letter from the hotel’s accountant. It said that she was an independent contractor and therefore responsible for all her taxes. And because she has been designated as a contractor rather than an employee, Fabiola has been denied unemployment insurance.

Employers often misclassify their employees as independent contractors to avoid paying payroll taxes, and other labor laws such as the minimum wage or overtime, comply with other wage and hour law requirements such as providing meal periods and rest breaks, or reimburse their workers for business expenses incurred in performing their jobs.

As well, independent contractors are not covered under workers compensation insurance, and are not liable for payments under unemployment insurance, disability insurance or social security.

If your employer is withholding payroll taxes, you can contact the California labor board to seek enforcement of the law, whereas independent contractors must go to court to settle their disputes or enforce other rights under their contracts. Both employees and independent contractors, however, can seek legal help.

Facility Workers Owed $1.6 Million: Labor Commissioner

Fresno, CA If you were owed $1.6 million, you might protest too. That’s the issue when a group of Filipino caregivers took to the street to make public their beef with the operators of an assisted living facility headquartered in Fresno. Their complaint and allegation is the non-payment of back wages and overtime that should have been their due under California labor law. Instead, the workers allege that Bedford Care Group (Bedford) of Fresno owes them $1.6 million.

And according to The Fresno Bee (1/23/14), the workers have the Office of the California Labor Commissioner in their corner. Last May, the Labor Commissioner cited Bedford for various violations to the California labor code. Among them, the failure to pay minimum wage and overtime, failure to issue itemized wage statements allowing employees to accurately track their hours and wages, and violations to mandated meal and rest breaks.

Bedford, which is identified as operating six assisted living facilities in and around Fresno and Clovis, has appealed the Labor Commissioner’s spring 2013 decision. At a hearing based at the Fresno office of the department of Fair Labor Standards and Enforcement, Bedford owner Stephanie Costa was expected to claim that Bedford possesses time sheets that show all employees had been paid according to California labor employment law.

However, an investigation by the Labor Commissioner found that Bedford owed 11 workers a total of $1.3 million in unpaid overtime during a period spanning November 2011 through April of last year. The Labor Commissioner also accused the employer of failure to pay $17,025 in minimum wage and $95,053 in premiums representing missed meal and rest breaks. Bedford was also cited for $114,500 in penalties.

Advocates say that while the Bedford case is not an isolated incident, it remains one of the more serious affronts, or so it is alleged, to California employee labor law.

The protest was staged on the eve of Bedford’s defense of its citation by the Office of the Labor Commissioner to Fair Labor Standards and Enforcement. The outcome of Bedford’s appeal is not known

At the protest, former employee Nerissa Roque told The Fresno Bee that she had toiled at Bedford for 14 months providing what she described as ’round-the-clock care to residents. “We love the people we take care of,” Roque was quoted as saying. “But we also need to be paid fairly.

“This is an injustice,” Roque continued. “We are very upset and sad and want the owner to pay us what we are owed,” according to California and labor law.

California Starts the Year with Two Unpaid Overtime Lawsuits

Sacramento, CA A company co-owned by an NFL Hall of Famer and ESPN commentator has been hit with a federal unpaid overtime lawsuit alleging that Carter Brothers Security LLC erroneously misclassified their employees allegedly to avoid paying them minimum wage, California overtime, job expenses and payroll taxes.

While Carter Brothers LLC is based in Atlanta, the 15 current and former workers behind the lawsuit are from Sacramento.

According to the lawsuit, filed February 4 in US District Court at Sacramento, the workers were trained by Carter Brothers to install residential security equipment in the state under contract with AT&T Digital Life. The Sacramento Business Journal (2/11/14) reports that when the joint venture between Carter Brothers LLC and AT&T failed, there were many layoffs. Those laid off, the lawsuit contends, did not receive unemployment benefits, disability pay or workers’ compensation as required under California labor law due to the fact they were classified as independent contractors.

However, according to the lawsuit, the workers were dispatched to job sites in AT&T trucks and were made to wear AT&T uniforms. The workers in their unpaid overtime lawsuit allege they toiled 12-14 hours each day without overtime, provision to offset travel expenses or extra training as needed.

AT&T is named as a co-defendant, amongst others, in the overtime pay lawsuit. The plaintiffs are hoping for class-action status. The legal firm involved in the action surmises that the misclassification could affect upwards of 70 to 80 workers in the state, not to mention workers based in Chicago and Dallas. According to the Sacramento Business Journal, millions of dollars’ worth of lost wages, various benefits and overtime pay that went unpaid according to provisions in overtime pay laws are at stake.

Carter Brothers LLC was founded in 2000 by NFL Hall of Famer and ESPN commentator Cris Carter and his brother John. Cris is currently the Chairman.

The case is Ramses Gutierrez et al v. Carter Brothers Security Services LLC et al, Case No. 2:14-at-00150

Meanwhile a federal class-action lawsuit was filed earlier this month against Gerawan Farming. Plaintiffs allege the company failed to pay minimum wage, overtime pay according to California overtime law and state-guaranteed rest breaks.

The plaintiffs named in the California overtime lawsuit are Rafael Marquez Amaro and Jesus Alarcon Urzua. According to the Fresno Bee (2/4/14), the lawsuit was filed on behalf of thousands of field workers who toiled for Gerawan and were paid by the piece over the previous four years. Plaintiffs claim the actual take-home pay was below the minimum wage guaranteed by the state of California.

The case is Amaro & Urzua, et al v. Gerawan Farming Inc. et al, Case No. 1:2014cv00147, February 3, 2014 at California Eastern District Court.

Second Cheerleader Joins California Labor Lawsuit

Oakland, CA In the month or so since a California labor lawsuit was filed against the Oakland Raiders, the lawsuit, alleging violations of California labor law, has already gained a second plaintiff, resulted in an investigation by the California Department of Labor and inspired a similar lawsuit in Cincinnati. The Raiders lawsuit, filed by a cheerleader on the Raiderette team, alleges cheerleaders are not paid minimum wage for their time spent working for the team.

The lawsuit, which seeks class-action status, was initially filed by Lacy T. in January 2014. Since that time, Sarah G. joined the lawsuit, which claims Raiderettes are not paid properly for all the hours they put into their time as a cheerleader. Specifically, they claim they are not paid minimum wage for all hours given to the Raiderettes. Although they are paid $125 per home game, they allege they are not paid for time spent at mandatory practices or mandatory promotional events.

Furthermore, they allege, if they fail to bring proper equipment or gear to their rehearsals, they can be fined. The lawsuit alleges, for example, that plaintiff Sarah G. was fined $10 for not handing in her written bio on time.

The plaintiffs also allege they have to pay out of pocket for cheerleading-related expenses such as travel expenses and hairstyling, even though the team provides a hairstylist they are forced to use. Finally, the lawsuit alleges, the cheerleaders do not get paid for their time spent cheerleading until the end of the season - months after their work for the team has begun.

According to the lawsuit (case number RG14710815, in the Superior Court for the State of California, County of Alameda), Raiderettes must attend all preseason, regular season and postseason football games, even if they are benched for the game. They must also attend all practices, rehearsals, workouts preparations, drills, fittings, photo sessions, meetings, events and functions as directed by the Raiders.

The lawsuit alleges that the contract the cheerleaders are forced to sign contains provisions that violate California law, including a provision waiving legal claims against the Raiders. They are also allegedly prohibited from discussing the fees they receive with anyone.

The California Department of Labor is concerned enough that it is now investigating the Oakland Raiders’ treatment of its cheerleaders. Meanwhile, a similar lawsuit has been filed against the Cincinnati Bengals, alleging the Ben-Gals, the Bengals cheerleading team, is paid well under the Ohio minimum wage. That lawsuit is case number 1:14-cv-00136-MRB, Brenneman v. Cincinnati Bengals, Inc.

Former US Marine Wrongfully Terminated from California 7-Eleven Store

Sun Valley, CA It’s sad enough that a former US Marine works at a 7-Eleven convenience store because it’s the only place that offered graveyard shift - since returning from Afghanistan, Christopher hasn’t been able to sleep nights. But wrongful termination in this situation is an outrageous violation of the California labor law.

Christopher says his former employer had violated California labor codes on a number of issues, including California overtime.

“Even though I was only paid $8 an hour, I took the job because it was night shift,” says Christopher. “When I first started, the 7-Eleven franchise owner asked me to promote their grand opening: I have a lot of ex-Marine and LAPD buddies so I was able to bring in a lot of business. I photocopied flyers and passed them around in my spare time…”

Christopher wasn’t paid to promote the store and he never asked for overtime pay - he was already working 40 hours a week. Things began to go sideways when his employer had a problem with the method of payroll and decided to go the paperless route. Christopher had two choices: he could have direct deposit or have his paychecks added to a debit card. He chose the latter but more than a month went by without getting paid.

“I was sinking financially and my bills were overdue,” Christopher explains. “Although I get benefits from the VA, it isn’t enough to cover my expenses so I was getting concerned. I had to borrow $80 from my employer, until they got payroll sorted out. Meanwhile, they owed me almost 50 hours of overtime and this time I asked for it.”

But the owners flat-out refused to pay overtime. Christopher says that the owners watch their staff on surveillance videos after their shifts are over and critique you, so everyone’s overtime is also on video. Christopher is certain that he was fired because he stood up for his rights and questioned the overtime issue.

“The owner didn’t have my last check upon termination, which is another violation of the California labor code,” says Christopher. “When I asked her why I was fired, she said that I was still under the 90-day probationary period and she didn’t have to give me a reason. I bent over backwards for her, all for $8 per hour.

“Talk about a hypocrite! This woman told customers over and over that she treats everyone like a family member but we were all treated like lackeys. I am aware that in her country they have a caste society and I saw this played out. And they never paid employees while training, which meant they got hours and hours of free labor - trainees had to haul merchandise off the trucks and stock the shelves. It was also a toxic work environment: If something goes wrong they would reprimand you but I always thought that making mistakes is part of the learning process.”

Christopher called the 7-Eleven corporate franchise office but didn’t get anywhere. He told them that his employer had violated several California labor laws, including his wrongful termination, but he never got a return call. “A few weeks later I called again. The HR woman said that they called my employer and it was taken care of,” he says. “Negative.”

Interestingly, one reason Christopher worked overtime was because the store was selling expired food and he had to re-label the expiration dates!

“They have a lot of condiments for hot dogs etc. with expiration dates of two days,” Christopher explains. “When these dates had expired, we had to re-label them - adding four days. As well, the owner would take off the expiration dates of turkey and tuna sandwiches and give them to the homeless shelter. Rather than throw them out, she had a tax write-off. Same went for donuts and pastries.”

Makes you think twice about buying sandwiches at a 7-Eleven, but this isn’t necessarily common practice - the 7-Eleven stores are franchises. Christopher might want to phone the 7-Eleven corporate office: Besides violating labor laws, this store might get slapped with violations from the Health Department.

Cheerleader’s California Labor Code Lawsuit Gets Attention by the Feds

Oakland, CA The California labor lawsuit filed by a member of the Oakland Raiders cheerleading squad has since caught the attention of the US Department of Labor (DOL). The latter has launched an investigation into claims by plaintiff Lacy T. (last name withheld to respect Oakland Raider’s security policy) that low wages together with fines and other expenses can combine to leave a cheerleader with little to show at the end of the regular season.

A handful of other teams have come under DOL scrutiny, suggesting that abuse could be more widespread. Chairman of the Center for Labor Research and Education at UC Berkley, Ken Jacobs, said in comments published in The San Francisco Chronicle (The Chronicle, 1/31/14) that such alleged violations of California labor code by the Oakland Raiders and other teams does not sit well from a public relations standpoint.

“I can imagine that this would be something the Raiders would want to resolve,” Jacobs said in comments published in The Chronicle. “If this practice is common for the other teams, you might very well see other investigations.”

Most in California are familiar with the story of Lacy T., a 28-year-old stay-at-home mom who has found fault with the pay practices of the venerable California football team. Not only can various fines and expenses, together with the loss of meal breaks, rest periods and overtime pay, eat into the effective hourly wage, but wages are also allegedly withheld until the end of the football season. As a result, according to the lawsuit, Raiderettes do not benefit from any infusion of cash while they are actively engaged with the club during the football season.

The plaintiff, who filed her lawsuit in Alameda County Court as a proposed class action, alleges that such practices violate labor laws. To that end, the newfound involvement of the federal DOL suggests that not just California labor employment law is being circumvented in such cases.

A spokesperson for the DOL’s regional office in San Francisco would not comment further on grounds that the matter is currently an open case. However, Jose Carnevali confirmed in comments published in The Chronicle that the federal investigation concerned “the team’s cheerleading squad,” and not merely the plaintiff who filed the lawsuit.

There have been other investigations around the country involving professional sports teams, with settlements in tow. The DOL recently announced an investigation into an allegation that interns with the Miami Marlins and the San Francisco Giants are unpaid.

This past August, according to The Chronicle, the San Francisco Giants paid $544,000 in back wages to 74 employees of the team following a federal investigation into various violations to California state labor laws over a three-year period.

Beyond the public relations hit a major sports team may incur as the result of an investigation into wage infractions, is the possibility of a costly settlement that could see a team spending more money at the end of the day than it otherwise might have spent had the enterprise simply paid proper wages, and adhered to California labor code from the beginning.

To that end, the DOL has the authority to mandate the reimbursement of owed wages at twice the rate of wages illegally withheld. The federal minimum wage currently sits at $7.25 per hour. The minimum wage observed by the state of California is currently $8 per hour, but is set to rise to $9 per hour in July, in accordance with California prevailing wage law.

Cheerleader Files California Labor Lawsuit

Oakland, CA The NFL has been in the news lately for lawsuits, but those have to do with concussion injuries. Now, however, the Oakland Raiders face a California labor lawsuit, filed by a cheerleader, who alleges the Raiders violate California labor laws by failing to pay her properly for her time working for the team. According to NBC Sports (1/23/14), this is not the first California labor lawsuit filed against the Raiders in recent years.

Wrongful Termination Lawsuit Filed in California

San Francisco, CA A former senior sales manager for Oracle Corp has filed a wrongful termination lawsuit alleging Oracle’s firing of him violates federal and California labor law. Although most employee firings are not violations of California labor code or federal labor code, this lawsuit alleges the plaintiff was fired because of his national origin and in retaliation for his taking a stance on employee rights.

According to Bloomberg (1/10/14), Ian Spandow, who is from Ireland but working in California for Oracle on an L-1 visa, was a senior regional manager in database sales. His lawsuit claims that when he tried to transfer an Oracle employee in India to California and requested the employee be paid what white employees were paid, Spandow was told to offer the employee less money.

When Spandow complained about that directive, he was allegedly fired. Spandow alleges his firing constitutes unlawful discrimination based on national origin and further alleges he was fired in retaliation for complaining about how he was told to treat the employee from India.

Although employees can have their employment terminated for no reason, it is illegal to fire someone for discriminatory reasons, such as national origin, race, religion and sexual orientation. Furthermore, it is illegal to fire someone in retaliation for complaining about working conditions, including unsafe conditions or issues with pay.

In December 2013, a former employee for PG&E was given a $1 million award in his wrongful termination lawsuit. The plaintiff, a former power line worker, alleged he was fired from his job for complaining about unsafe working conditions. According to the Santa Cruz Sentinel (12/16/13), Matthew Niswonger had been told by supervisors that he and his team had to replace a broken electrical pole without shutting down power.

Although no one was hurt during the work, Niswonger says there were close calls and he later learned that one other crew turned down the job because they felt it was too dangerous. Subsequent work done by other crews on the same pole was done with the power off. Niswonger complained about safety issues at work and, in September 2011, was fired.

The jury found in favor of the plaintiff and awarded him almost $600,000 for lost wages and benefits, and another $500,000 for emotional distress. A spokesperson for PG&E, however, has said the company will file post-trial motions.

The lawsuit is Spandow v. Oracle Corp., 14-cv-00095, in the US District Court, Northern District of California (San Francisco).

California Labor Law Gets New Look for New Year

Sacramento, CA With a new year, comes a new era in California labor law. Nothing iconic, mind you, but a culmination nonetheless in various reforms that took effect the first of the year or due to come into play later in 2014. Among them, a boost in the minimum wage in the state and other reforms that help to further protect workers’ rights.

Critics suggest that a boost to the minimum wage - currently $8.00 per hour until the end of June - will only result in higher prices and higher costs, effectively voiding their windfall. And industry watchers maintain there will always be those employers who attempt to grow their own coffers on the backs of their workers, by skirting around various tenets of California labor code, including overtime exemptions.

Still, advocates for workers’ rights hail the changes, which mostly took effect January 1, as a continuing step - but baby steps, all - in the right direction.

According to The Californian (1/1/14), the minimum wage for the state will rise to $9 per hour effective July 1 this year. The hourly minimum, according to California and labor law, further rises to $10 January 1, 2016.

But there are a number of other updates to California and labor law that went into effect the first of the year. Among them, is a law that prevents employers from threatening to report workers who complain about legitimate job-related concerns and seek payment of legally due wages to immigration authorities. Such has been the case in the past when an employee, seeking legally due wages and getting nowhere with the employer, files a California labor lawsuit.

The new provisions to California labor employment law also provides that certain in-home workers, such as nannies and personal attendants for individuals who are ill, disabled or elderly, will now qualify for overtime - and will now be governed by a bill of rights.

California employee labor law also prohibits employers from forcing seasonal employees, or other employees who work outdoors, to continue working during mandated “recovery periods” in an effort to avoid debilitating or deadly sunstroke.

Victims of crime will also be allowed time off from work to appear, as needed, as part of court proceedings involving violent crime, domestic violence or sexual assault, among others.

The change to California prevailing wage law is by far getting the most traction in the press.

“We were able to improve upon existing protections as well as support workers in a number of new ways, including increasing the minimum wage,” said Steve Smith, a spokesman for the California Labor Federation, in comments featured in The Californian on New Year’s Day. “If you look at this year, compared to over the past decade, it would be hard to argue that there’s been a better year for worker legislation.”

Governor Jerry Brown appears poised to continue to push improvements, as he is able, through California state labor laws.