California Labor Law News
California Labor Lawsuit Nets $4.7 Million Settlement
The lawsuit was filed against Schneider Logistics and alleged that the company illegally deducted wages from employees and did not pay overtime. The plaintiffs alleged that Schneider held an invalid election for an alternative workweek schedule, which, according to The Huffington Post (12/10/13), cut employees out of overtime pay, misled employees into voting for the alternate workweek schedule, had employees sign waivers that they did not want their meal breaks and failed to provide employees with a regular schedule.
Among the claims against Schneider, as listed in court documents, were unpaid overtime, breach of contract, unlawful rest breaks, unpaid reporting time and paying secret wages. At least one employee, according to The Huffington Post, said he did not understand his rights and he felt pressured into signing them away. He also said the forms he signed were in English but he can only read Spanish, so he often did not understand the forms he signed.
Ultimately, Schneider agreed to settle the lawsuit for $4.7 million, including payments to class members, fines to the Labor Workforce Development Agency, attorneys’ fees and costs, and class administration costs. Schneider also agreed to terminate the alternate workweek, and agreed to not use waivers asking employees to sign away their rights to overtime pay.
Up to 568 current and former hourly employees are affected by the settlement, which received preliminary approval from the judge. In agreeing to the settlement, Schneider Logistics did not admit any wrongdoing.
Some of Schneider Logistic’s actions, however, came under fire by a judge earlier in 2013. According to reports, attorneys with the company met with employees to interview them about working conditions, but allegedly did not tell the employees that any information given during the interviews could be used against them in court. The judge, who found the actions “fundamentally misleading and deceptive,” found that Schneider could not use the employees’ sworn declarations against them in court.
The Schneider lawsuit is Franklin Quezada v. Schneider Logistics Transloading and Distribution, U.S. District Court for the Central District of California, No. 12cv02188.
California Labor Law Needs Compassionate Code
Shawn, 49 years old and married with an eight-year-old son, was a truck mechanic at one of the biggest freight companies in the US. He routinely had his shifts changed, one week starting at 4 p.m., another week at 1 a.m. “All those years it never affected me until recently, maybe because I am getting older,” says Shawn. “We always partnered on shifts, but on one shift change I was working the night shift alone in this huge facility with nobody there, not even security. I got anxious to say the least. One night it was so bad I left early and went to ER. I had no idea what was going on until they ran blood tests, and it cost me $1,500.”
The ER doctor told Shawn that he was having an anxiety attack. Shawn had more tests and his family doctor advised him to change the shift work and not work alone or it would kill him. He was prescribed medication for anxiety and he wasn’t sleeping well either - a common occurrence with shift work. But this was definitely a wake-up call: two of Shawn’s co-workers had suffered heart attacks and one guy had a heart attack on the job and died - he was working alone. One night, Shawn’s anxiety got so bad that he had to go home.
“I told the guy I was working with that I had to sit in my car but I hadn’t clocked out,” Shawn explains. “I fully intended to clock out but I felt so lousy I had to sit down for a minute; I was afraid that I might trip or fall; I was an accident waiting to happen.
Shawn’s manager found him sitting in his car. “I explained that I felt bad and had to go home but he placed me on suspension and I was terminated a week later - September 4,” Shawn says.
Shawn tried to fight their decision - by himself. The company has a so-called “best practices code,” which is supposedly a way for an employee to fight the reason of their termination. “First, I had a conference call with my manager and his manager and then they called and fired me a week later,” he says. “I appealed within the company (you get three chances to appeal so this was my second time) and it went up the management ladder, this time including some people from HR. They shot me down again. I said I wanted to appeal again and this time it would be via mail, no calls. They came back with the same decision.”
Next up, Shawn filed for unemployment - something he had never done before. He received a few checks and was looking for work. Then, without notice, the checks stopped. He e-mailed the California Unemployment Development Department and they replied that his former employer was denying his unemployment benefits. They also told Shawn that he would get a letter with a court date to appeal that decision. Shawn was shocked - he had no idea of how the process worked.
“I went to court with my wife and son. My boss didn’t even show up with the excuse that it was too far to come - 50 miles. I drove 30 miles,” says Shawn. “But he was on the conference call and the judge was asking us both questions. The judge said he would take everything into consideration and send the results via mail. But it didn’t take long: he made a decision the next day, in my favor.
The judge said that if I had clocked out before I sat in my car this would never have happened. But it was a one-time occurrence. I believe that I have been wrongfully terminated: this incident spiraled out of control because I was working alone and had to endure so many shift changes.”
Adding to his problems, Shawn is now suffering from depression. He is worried that getting fired will tarnish his perfect work history of 25-plus years. “I was told that the company cannot disparage me in any way,” he says. “Apparently, they aren’t allowed to say that I was fired. However, I want to apply for a job with the city and one question they ask is whether you have ever been fired. I have to be honest so I didn’t continue the application. I am hopeful that an employment attorney can advise me. And it’s not over yet - I have to wait 20 more days to find out if I will be able to continue collecting unemployment because the company can appeal the judge’s decision!”
To be continued after 20 days. And at that time the company will be revealed…
Best Buy Motion to Dismiss Denied in California Labor Lawsuit
The lawsuit (case number SACV 12-1377 AG [ANx], in the U.S. District Court, Central District of California) alleged plaintiffs Kurt Swanson and Tawny Perez were assistant managers at Best Buy and were classified as exempt from overtime pay, according to court documents. The lawsuit alleges that although the plaintiffs were involved in managerial activities, they were also regularly involved in non-managerial activities including, “selling product, organizing shelves, and unloading inventory from trucks alongside other employees.”
Best Buy filed a motion to dismiss the lawsuit, arguing that the plaintiffs’ testimony established their exemption from overtime pay requirements. The judge rejected the motion to dismiss, however, noting that “a reasonable juror could find that both Swanson and Perez were not ‘primarily engaged’ in duties exempt from the overtime requirements.”
Under California law, a person is exempt from overtime pay if he or she meets administrative or executive requirements. Included in those are managing a “customarily recognized department or subdivision,” regularly directing the work of two or more other employees, having the authority to hire or fire employees, and primarily performing duties that meet the exemption test. Such exempt duties include training employees, directing employees, handling employee complaints and planning work.
According to Swanson’s testimony, he spent approximately 70 percent of his time in managerial duties, which would exempt him from overtime pay. But the judge found that there was some overlap between Swanson’s time working in exempt and non-exempt activities, such as when as a sales floor leader he would organize shelves or sell merchandise. The judge further noted that although Best Buy recognized the time Swanson spent selling merchandise as a non-exempt activity, it did not record his time in other non-exempt activities.
For employees to be exempt from overtime pay, they must meet the administrative or executive requirements. It is not enough that they be given a managerial job title or even that they spend some time involved in managerial activities. To be exempt, they must spend more than half their time involved in managerial or executive activities.
Unions Launch California Labor Lawsuit Over Contract Clause Clawback
According the Contra Costa Times (12/3/13), the dispute centers on a clause in a recently negotiated contract that provides for six weeks of paid leave to care for a newborn, or an ill or injured family member - in addition to normal provisions for vacation pay and sick leave.
The BART board, according to the report, is characterizing the paid leave agreement as a clerical error in the contract and voted November 21 - following initial agreement of the proposed contract by both sides - to require that approval of the proposed contract be conditional on a new union vote on a revised contract without the paid leave clause.
The paid leave provisions would saddle the BART transit authority with additional costs, although it would depend on how many union members would take advantage of the perk. The labor contract would cost BART $67 million over four years. The paid leave provision could cost the Authority an additional $6 million, to $44 million over the life of the contract.
BART wants the paid leave provision struck from the contract. The unions are sticking to their guns, saying that the provision was in the original proposed contract that was agreed to by both parties.
The unions involved in this California labor code dispute are Amalgamated Transit and Service Employees International. According to the newspaper report, the unions had previously launched legal action against BART over alleged issues surrounding California and labor law this past June.
When both sides reached a tentative agreement October 21 - an agreement that both unions ratified - it was thought that legal action against the transit authority could come to an end.
That doesn’t appear to be the case now. The unions are seeking, through the courts, to force the employer to accept the terms of the proposed contract as agreed and as ratified by the union membership according to the tenets of California and labor law.
A professor of law is quoted in the report as saying that there is no precedent for an employer, having negotiated a contract and signed off individual tentative agreements, to come back and attempt to back away from a previously agreed-to clause.
While the California labor lawsuit is at play, various members of the bargaining unit noted that an out-of-court settlement might be possible, and that the door has been left open for further negotiations, provided they are meaningful. The report noted that a judge, rather than decide on the legality of the employer’s attempt to back away from an agreed-to provision, could simply order the two sides back to the bargaining table.
The transit authority appears poised to try its luck in court, rather than enter into new talks. “I’m not aware of any case where a member of the judiciary has told an elected board, ‘You have to accept this unratified contract no matter what it costs,’” BART board Vice President Joel Keller said, in a statement to the Contra Costa Times. “And if it is forced upon us, it could result in a fare increase.”
The California labor lawsuit was filed in Alameda County Superior Court December 3.
How Many F-Bombs Are Grounds for California Labor Lawsuit?
Kimberly realizes that verbal abuse may not be reason enough to file a California wrongful termination lawsuit, but she is thankful for the opportunity to speak out about her former managers at Staples. They dropped the f-bomb and even the c-word on her too many times.
Clearly, Kimberly was a valuable employee at this particular Staples store: she was hired in May 2011 as a cashier and became full-time inventory lead for the entire store within a few months. As well, she started at $8.75 per hour, then got a raise to $9.25, and a few months before she was fired, Kimberly was given another raise to $10 per hour.
“I ran the store without a GM for several months so I had a really good track record and I did extra work with no pay increase; you do it for the team,” she says. And she often worked 6 p.m. until 2 a.m. shifts doing inventory without overtime compensation.
“We were often behind on a load - 10 pallets a week would get delivered and it was my sole responsibility to get products onto the shelves,” says Kimberly, “and I never took breaks or lunches from August last year until I was terminated. They would make me come in weekends for so-called one-hour meetings and I wouldn’t get paid. That happened about 20 times. Of course I asked my supervisor for overtime pay but I was told it was store policy - Staples doesn’t pay overtime.”
But overtime is just one complaint. Kimberly tolerated extreme verbal abuse from a new supervisor for several months before she was wrongfully terminated.
“This new supervisor had it in for me since Day One,” Kimberly explains. “She didn’t like me because I didn’t want to train her - she should have known her duties. ‘I have no problem working with you but I am not doing your job,’ I said. Her response was abusive: She called me a bitch and the C-word. All sorts of people heard her drop the C bomb. But almost all employees are scared to complain or speak out against anything or anyone for fear of losing their job.
“Next up, she hired her friend as part-time supervisor, which is still above me. Then she wrote me up. I was in the management trainee program but she removed me in May, about a month after she was hired. In response to my write-up, my General Manager showed up and said, ‘If I didn’t like your f**king ass or have respect for you, I would fire your ass right now.’ They talk like this to anyone who makes them the least bit angry. By the way, I had only met the GM three times.
“And I’m not the only one singled out and getting abused. My former co-worker Don [not his real name] still works for Staples. Our GM brought his daughter, age 13, to the store every Sunday afternoon and told Don to keep an eye on her. It stopped him from completing his work and affected me too because he was my right-hand person. So he complained to HR. ‘When you have a f**king problem come to me next time instead of squealing to HR because now I have a f**king problem and next time I am gonna make it worse for you guys,’ the GM told Don. We dealt with threats daily.”
Last May, Kimberly received another negative write-up - she wasn’t far from termination. She went to HR with harassment and verbal abuse complaints but HR said she had to talk to the GM first - then he would instruct HR!
“My GM told me to talk to the part-time super and either negotiate terms and kiss her ass and make her happy or I would lose my f**king job,” says Kimberly. “I had no choice. I went into her office and right away she was on the defensive so it didn’t go well. I explained that my job is to take care of the store and make it run properly and not socialize with her when I am helping customers.”
Three days later at 7:30 a.m. Kimberly was fired. And she didn’t get paid for that day: she was entitled to four hours pay because she was scheduled to work. Kimberly says this is how it went down:
“Firing your ass sucks for me too because now I don’t have anyone to help me run the store,” the GM said.
“So why are you letting me go?”
“If you just kissed her ass, you could have kept your job,” he replied.
“The way they treat people is horrible,” says Kimberly. “I just hope this doesn’t happen to anyone else. I filed for unemployment but I am pretty sure Staples is going to try to deny me by saying it was my fault due to job performance. But I have an audio recording from my previous GM saying I was a great worker. I know that it isn’t right to record anyone but I told him beforehand and he said, ‘Just do what you have to do.’ I was just scared for my job. Maybe that audio recording will come in handy one day…”
Walmart Faces Criticism in Dispute with Employees in California
According to the Los Angeles Times (11/19/13), the National Labor Relations Board found Walmart acted unlawfully in dealing with employees who threatened to strike on Black Friday in 2012. The company reportedly threatened discipline against employees who took part in the strikes and took unlawful action against workers who did take part in the job action.
As a result of the National Labor Relations Board’s findings, Walmart may have to provide back pay to employees and reinstate some workers. The New York Post (11/18/13) reports that the National Labor Relations Board could sue Walmart over the company’s actions, which reportedly included firing 117 employees. A lawsuit could be filed if Walmart does not settle with employees.
The National Labor Relations Board issued a statement (11/18/13) noting that while it found merit to some of the complaints, it found no merit to others. Among the charges that it did not find merit with were complaints that employees were told to move off Walmart property and complaints that Walmart unlawfully changed work schedules.
But other complaints had merit, the board found, including that Walmart stores in California and other states “unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities,” and “unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.”
Meanwhile, Yelp faces a class-action lawsuit in California alleging the people who write reviews for the website should be paid because the company could not continue without them. Yelp offers reviews on a wide range of businesses including restaurants, law firms and hairdressers.
According to the lawsuit, Yelp reaches 108 million people per month, with more than 42 million reviews. Profits come from advertising that is sold on the site. “The practice of classifying employees as ‘reviewers’ or ‘Yelpers’ or ‘Elites’ or ‘independent contractors’ or ‘interns’ or ‘volunteers’ or ‘contributors’ to avoid paying wages is prohibited by federal law, which requires employers to pay all workers who provide material benefit to their employer, at least the minimum wage.” The lawsuit was filed in the US District Court for the Central District of California.
California Wrongful Termination So Wrong
Robert (not his real name) worked for three years as a service technician for a car dealership. He was paid a flat rate, something like commission. He teamed up with another technician and they had the highest hours of production. “If we did the job in 30 minutes we would still get paid for an hour’s work,” Robert explains. “We worked really well together and we were efficient.”
So efficient were they that the boss thought it was physically impossible to complete the allocated work on a vehicle in that amount of time. “We completed one job on Monday, handed over the paperwork and left after finishing our shift,” he says. “On Tuesday we worked only half a day and the manager called us into the office before we left. He told us there was no way we could have finished the job. But the customer didn’t complain; in fact, I never had a customer complain that we didn’t finish the job, ever.
“We worked a full day Wednesday stewing over whether we would get fired or not. By Thursday they brought us into the office. They gave us our final checks but made us sign the pink slip first - it stated that we were terminated for falsification of documents and flagging hours on repair orders and charging customers on work not performed.”
In other words, they were accused of stealing - up-selling to a customer and not completing the job. “For example, a vehicle would need an oil change. We were responsible for checking the vehicle and giving our report to the service manager, who would in turn talk to the customer and sell the work based on our recommendations. Perhaps the car needed a power steering flush or it was due for transmission service. But this service manager decided that we couldn’t do this up-sell in such a short period of time. He basically screwed us.”
Sounds like the dark ages: guilty until proven innocent. The dealership didn’t have any evidence to back up the accusation: It didn’t have a video camera and not one customer complaint. Robert doesn’t even think they checked the vehicle in question after they left work on Monday. “Unless you take a scope and check the fuel injectors there is no way of telling whether the work was done and I know they didn’t do that,” he says.
Robert can only surmise that they were fired because the guy he worked with was written up more than a few times over the years. “For instance, he almost got into a fistfight with the service advisor - the guy who I believe instigated our wrongful termination,” says Robert. “They both got written up for misconduct but I had never been written up. Instead I got a $3 per hour raise just a few months ago so I was making $19 per hour.
“And just a week before I was fired, the service manager told me how he appreciated all the hard work I do, ‘busting my ass.’ But when we were reprimanded, he treated us like jerks. He is the epitome of company man. He wasn’t around when we worked 6-day shifts; when we came into work on our days off to finish jobs. He had no idea how much I bled for this place.”
After he was wrongfully terminated, Robert was concerned about whether he would qualify for unemployment benefits so he called the manager, who said he could just appeal it. Robert was fired seven weeks ago and still doesn’t know if he can collect. And he hasn’t found another job.
“I have applied for work at numerous places but when a potential employer phones my former employer and finds out I was terminated, guess what - they aren’t going to hire me. I worked seven years in the automotive industry and I get shafted. I am only 30 years old and the only job experience I have is in this business. I have $2 in my bank account and my credit cards are maxed out. I’m not sure if an attorney can help so maybe it’s time I have a career change.”
Correctional Officer Forced to Work California Overtime
Alan says they were paid overtime according to the California labor laws and they had a choice: work overtime or lose your job and walk away from retirement benefits. He says there are many unhappy employees in the nation’s prisons.
Alan, who retired in 2008, worked in state prisons anywhere from level 1-4, where the more dangerous inmates are placed in level 4 with minimum security being level 1. “In the last decade or so, the prison population increased to such an extent that building new facilities couldn’t keep up,” he says. “As a consequence, there weren’t enough officers to cover the new housing units.” According to “the general rule of thumb,” at least two officers must be allocated per 100 inmates, but Alan says most units contained hundreds of inmates with only two officers.
“Judging from the amount of complaints going around I believe that hundreds of officers didn’t want to work so much overtime,” he says. “One former co-worker retired last year after working 26 years. He had seniority but said it was unfair to those starting out, especially officers with families.”
With seniority you can choose to work overtime or not. Seniority also means that officers with the least seniority can wind up working 16-hour days, five days a week. “Sure the money is great but those hours are brutal and it’s dangerous,” Alan explains. “It’s not fair to your co-workers because you cannot be alert when you are exhausted. We even had a few officers who fell asleep at the wheel because of fatigue: It is a serious problem.
“We were forced to work a minimum of three overtime shifts per week (we would work our regular 8-hour shift and then we were held over: They needed us to work another eight hours. So 16-hour days, sometimes 3 or 4 days per week were common and often we were required to work 16 hours five days a week. We were paid time and a half over eight hours and double time was paid weekends and holidays.”
Before talking to LawyersandSettlements, Alan wasn’t aware that he is owed a lot of overtime pay: if he adds up all those 16-hour days, Alan is owed a big chunk of change because he should have been paid double time after 12 hours. The California overtime law states the following:
• One and one-half times the employee’s regular rate of pay for all hours worked in excess of eight hours up to and including 12 hours in any workday, and for the first eight hours worked on the seventh consecutive day of work in a workweek;
and
• Double the employee’s regular rate of pay for all hours worked in excess of 12 hours in any workday and for all hours worked in excess of eight on the seventh consecutive day of work in a workweek.
Alan has another complaint regarding overtime. His salary averaged about $110,000 due to working so much overtime but he had to take an early retirement five years ago at the age of 55 due to a work-related injury. “They calculated my salary on my hourly rate working eight hours per day and didn’t include overtime pay,” he says. “What is most unfair is that if you refused to work overtime, that was grounds for dismissal. They wanted it both ways.”
Alan has filed an overtime complaint against the California Correctional Institute.
Furniture Distributor Compensates Workers for California Labor Law Violations
According to a PR Newswire release (10/28/13), Labor Commissioner Julie A. Su launched the investigation following a complaint by an employee of Coppel Corporation, a distributor and warehouse in the state. The employee, according to the report, contacted the Division of Labor Standards Enforcement (DLSE) within the Department of Industrial Relations (DIR) with regard to potential violations of California labor employment law.
Following the filing of a formal California labor code complaint with the DLSE’s Bureau of Field Enforcement (BOFE), it was determined by investigators following a review of payroll documents that employees had worked about two or three hours of overtime each week but were paid at their regular hourly rate - a violation of California and labor law.
Labor Commissioner Su was quick to point out that Coppel Corporation co-operated fully once the allegations came to light, undertaking a self-audit that eventually revealed the overtime wages discrepancy.
California prevailing wage law mirrors federal statues under the Fair Labor Standards Act (FLSA) that requires a rate of pay calculated at one and one-half times the regular hourly rate of pay for any hours worked beyond a standard 40-hour week, or any hours worked beyond the 5th consecutive day.
As a result of the California employee labor law investigation, Coppel will be paying $88,109 to 60 current employees, in addition to $33,613 destined for 83 former employees of the firm.
“This is an example of how effective labor law enforcement benefits everyone,” said Labor Commissioner Su, in a statement. “We encourage employers to cooperate during investigations, come into compliance, and make workers whole.”
A favorite ploy amongst employers attempting to cut expenses and improve their bottom line is to force employees to perform job-related tasks off the clock or incorrectly classify employees as exempt from qualifying for overtime - all tactics that flaunt California state labor laws.
This doesn’t appear to be the case here.
“We appreciate the employer for responsibly working with our investigators to bring a speedy resolution for these workers,” said Christine Baker, Director of the Department of Industrial Relations.
Under the leadership of Su, the Office of the California Labor Commissioner has been aggressively pursuing alleged violations to California labor law, with numerous investigations culminating in a California labor lawsuit and ultimate compensation for workers.
In the end, however, it starts with an employee or group of employees keeping aware of the goings-on at their place of employ, and having the courage to speak up or lay a formal complaint in the face of an alleged violation to the California labor code.
The warehouse operated by Coppel Corporation is located in Calexico.
Kaiser Faces Retaliation Lawsuit
According to the lawsuit (case number CIVDS1311690), the two plaintiffs were employed by Kaiser at the Kaiser Permanente Fontana Medical Center in their Environment Services (housekeeping) department, and when the department was outsourced to Xanitos in August 2010, began taking direction from both Kaiser and Xanitos.
The first plaintiff, Leah Wilbur, began working for Kaiser in 1999, and in 2011, reported injuries sustained as a result of using poorly designed carts that were brought into use by Xanitos. After filing a workers’ compensation claim and speaking with other employees about her injury, Wilbur was allegedly approached by a manger and warned to never speak of her injuries to anyone. Furthermore, when meetings were held to improve working conditions at the Kaiser facility where Wilbur was employed, complaints brought to the meeting were allegedly ignored by managers.
The lawsuit also notes an incident in which sewage flooded a basement in the medical center. Wilbur alleges she and other employees were told to clean up the spill - which included “raw sewage and other bodily fluids” - with blankets and other available material, but with no protective gear. Wilbur complained and a hazardous material cleaning company was brought in to finish the cleanup. On June 13, 2013, Wilbur allegedly brought up issues about having safety gear such as gloves and goggles on site for such occurrences. On June 14, 2012, Wilbur was placed on suspension and then fired on June 22, 2012.
The second plaintiff, Sandra Purnell, began working for Kaiser in 1996. She also reportedly complained to management about poorly designed carts. In 2011, she filed a workers’ compensation claim due to injuries resulting from using the cart, but was not allowed accommodations so that she could use a smaller cart. She complained about rooms not being properly cleaned because employees were not allowed to use proper tools to clean the walls. Purnell also alleges she was written up for absences that had already been excused. Finally, she alleges that she complained repeatedly about actions on the part of co-workers and management that resulted in employees being exposed to hazardous working conditions.
The lawsuit alleges Kaiser and Xanitos discriminated against Wilbur and Purnell because they were disabled employees who were qualified to perform their duties but were subject to “adverse employment action by Kaiser and Xanitos, including failure to provide reasonable accommodations for their disability.” It also alleges retaliation for engaging in an activity that is protected under California’s Fair Employment and Housing Act. Finally, the lawsuit alleges wrongful termination.
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