California Labor Law News
Alleged Violations to California Labor Law No Holiday for Affected Workers
Regardless of the motivating factors, it often takes an official investigation and a California labor lawsuit to right those wrongs.
While it appears as if a lawsuit has not materialized so far in the case of alleged lapses of California labor code on a construction site for a new Holiday Inn Express, the California Labor Commissioner’s Office has nonetheless filed a lien against the property in question, located in Eureka, in an effort to recover almost a quarter of a million dollars in unpaid wages.
According to the Eureka Times Standard (8/13/13), the mechanic’s lien was filed earlier this month against the property located at 815 West Wabash Ave. and pertains to wages that were to have been paid, according to California and labor law, from January through May of this year.
According to the report, Carpenters Local 751 filed a complaint alleging various California labor employment law violations. That complaint led to an investigation launched March 27 under the auspices of the California Labor Commissioner’s Office together with the California Occupational Safety and Health Administration and California’s Labor Enforcement Task Force.
The investigation, it is reported, revealed that some paychecks issued to employees were returned NSF, with the unpaid wages also extending to meal and rest period violations. The investigation also found 13 workplace safety violations, including unsafe ladders, failure to provide fall protection and scaffolding, inadequate training to recognize fall hazards, and unguarded saws.
“It’s like any other illegal activity,” said Peter Melton, a spokesperson with the Department of Industrial Relations, in comments published in the Eureka Times Standard. “Supposedly, there’s a financial gain which causes people to cut corners and not obey the law, but the downside is if you get caught, you have to pay the penalty.”
According to the report, the total amount of unpaid wages in question added up to more than $247,600 owed to 31 workers who toiled on the Holiday Inn Express new build, a facility that was slated to open in the spring but now has been delayed until the fall. The property is reported to be owned by Shailesh Patel and Jayshree Patel Revocable Trust, with Jansen Construction and PacWest Contracting identified as the contractors. It is not known if the mechanic’s lien, brought according to allegations of wrongdoing under California employee labor law, has been appealed.
California Labor Law Allows Citizens to Sue for Violations
The Private Attorney General Act (PAGA) was created because the California Labor and Workforce Development Agency did not have the resources to investigate all labor code complaints. As a result, PAGA was developed to give private citizens the right to sue for such violations of the code and recover civil penalties on behalf of the state. If the plaintiff is successful in his lawsuit, he and any injured employees are given 25 percent of the penalties along with any money owed by their employer and attorneys’ fees, while the California Labor and Workforce Development Agency keeps 75 percent of the fines.
There are rules for a person to file a lawsuit under PAGA. First, a complaint must be filed with the Labor and Workforce Development Agency. If the agency declines to investigate the complaint, or if it fails to respond to the employee within 33 days, a PAGA lawsuit can be filed, provided it falls within the statute of limitations of one year.
If an employee were to sue for unpaid wages, for example, he could file a suit under the Private Attorney General Act. If he won, he and fellow employees would recover his unpaid wages, which he would keep, plus he and any other harmed employees would receive 25 percent of any civil penalties awarded by the court.
Currently, lawsuits against a variety of plaintiffs filed under PAGA are working their way through the courts. One such lawsuit was filed against Orkin, alleging employees were not properly paid for meal breaks or overtime. According to Courthouse News Service (8/13/13), Orkin argued that the lawsuit should be moved to federal court, but the 9th Circuit found that because the lawsuit was filed under PAGA, which is unique to California, the lawsuit belonged in state court.
The Urbino lawsuit is Urbino v. Orkin Servs. Of California, Inc., No. 11-56944.
California Labor Law Spells Pregnancy Termination a Wrongful Termination
When she was five months pregnant, Rovanda’s doctor ordered an ultrasound and found out she had dilated: she required stitches in her cervix to hold the baby and carry it to term. It was imperative that she have this surgical procedure and four or five days off work. But even before this, HR tried to let her go.
“When I first told my supervisor that I was pregnant, the lady at HR told me that she was going to have to lay me off,” says Rovanda, who knew she wasn’t allowed to do that; she knows that is discrimination and a violation of California labor law. And HR must have known it too. Incredibly, Rovanda says she is not the only one. “Anybody who works here and gets pregnant is laid off but in reality they are getting terminated,” she says.
“When I was able to go back to work, the lady at HR said, ‘Don’t work tomorrow, we will call you back.’ No call back. I phoned a few days later and they told me to apply for unemployment, they had already sent my last check electronically. A guy came to my house who said he was just taking my place until I returned to work. He took the company vehicle and petty cash, about a week after I had the surgery.
“I was ‘laid off’ last October 2012. HR said I could only return to work part-time after the baby was born but I never came back to work. I was a hard worker with only one write-up and right after that got a promotion, so the only reason I can think of for terminating me was because my position meant I had to be on call for emergencies first and second shifts - when you clean in the evening. They figured I couldn’t do it with a baby.
“I kept in touch with them while I was pregnant and I planned to go back to work six weeks after my daughter was born. I had family and a babysitter all set up to look after her.
“The GM said they weren’t going to hire me back at all because my job was made redundant but they had a position advertised in the local newspaper for a supervisor - my job. I never pushed the issue until I saw that ad.
“When I told my manager that I was going to call a labor lawyer to determine whether this is right or wrong, he just said, ‘Do what you’ve got to do.’ I know they are in the wrong; I put my trust in them, I thought they would secure my job.”
Rovanda is a single mom - her daughter is now six months old. She is still collecting unemployment insurance and looking for work, but her unemployment runs out this October, which is cause for concern. She has also filed a wrongful termination claim, alleging discrimination.
When Is Verbal Abuse a Violation of the California Labor Law?
It all started because Justin had to go to the bathroom. He knew the drill: try to contact the boss first and, failing that, pack up his station before leaving. “I called my boss to see if I could get a replacement but after three attempts, including texting, I gave up. I packed everything away then shut down my stand,” says Jason. “I was gone for about ten minutes. When I returned, a man was standing at my station and asked if I was Justin. Affirmative. Then he started freaking out, yelling at me that I couldn’t leave my stand, no matter how bad an emergency.”
The man yelling at Justin was Costco’s “Loss and Prevention” employee, like a security guard who was mainly employed to prevent shoplifting. He certainly didn’t have the right to tell Justin that he wasn’t allowed to go to the bathroom.
“This guy was getting louder and louder as I tried to remain calm,” Justin explains. “I said, ‘Sir, I know that verbal abuse is in violation of the California labor code and you have no right to treat me like this,’ but that got him even more irate. He accused me of not being at my station since 11am, which was ludicrous because I started work at noon. Then he left, telling me he was coming back with Jeff, the Costco manager.”
Jeff and the abusive guy escorted Justin to a security room, where another security officer was watching the store’s video cameras. Justin was told to sit down and then had more abuse hurled at him. Justin, age 27, was in this room with three big men in their 40s, - rather intimidating.
“Jeff told me that I couldn’t ‘cuss inside Costco’ and that threw me because I wasn’t the one swearing,” Justin explains. “The security guy screamed that I was a liar. All they had to do was look at their cameras - that would have shown I didn’t do anything wrong. Instead the other security guy put both arms on my armrest and within inches of my face yelled ‘You are a filthy liar, dirty liar, quit lying.’ His sweat flew into my face. I said, ‘You have to let me go and I will not talk to you again without having a labor lawyer present.’ Then he replied that I had to calm down. I left the room and phoned my WDS boss, Nahid. She said Costco is not allowed to reprimand me without one of my bosses present.
“Nahid asked me to finish the day and I agreed. But within five minutes, the security guard was mouthing threats from two aisles away. I called Nahid again and she asked him to leave. Negative. So Nahid said I could go home because it was a ridiculous situation.
“I packed up and he followed me out of the building, so again I called Nahid and said I didn’t feel safe returning to this location. That was the last time I was in Costco. I have been out of work since July 18th. WDS could easily give me a position in another Costco but I think that Costco told WDS to fire me. I loved my job; I loved giving free samples to the public.
“My complaint is wrongful termination and verbal abuse, which I think constitutes harassment. I had three men in my face yelling that I am a liar but refused to look at the evidence - the cameras. They ganged up on me to protect the security guy who was obviously having a mental meltdown.
“I am angry. I have experienced anxiety attacks and cannot go into Costco again. The loss prevention guys go to different Costco’s so I could run into him - I know he was threatening me. Ideally I want my job back and I want this guy reprimanded. Costco should be aware that this guy could potentially be dangerous.”
Unfortunately for Justin verbal abuse, like harassment, is illegal only when a person is discriminated against due to their age, disability, national origin, pregnancy, race, religion, gender or other statutes protected by state or local law, according to the California Labor Law.
As for Justin’s employer and Costco, however, they could be held liable for not providing an employee with a safe and healthy workplace under regulations from the federal Occupational Safety and Health Act. OSHA states that an employee faced with verbal abuse can fairly claim that the abuse interferes with their ability to go about daily job duties. An employer can be held responsible for retaining the services of an employee who verbally abuses another employee. So Justin may just have a case.
Target Faces California Labor Lawsuit Over Multicultural Memo
Courthouse News Service (7/8/13) reports that three employees, Robert Gonzalez, Bulmaro Fabian and Pedro Garcia-Ayala, filed the lawsuit with allegations of harassment, discrimination and retaliation. They claim they were subject to racist comments and racial slurs from management at the distribution warehouse. When Target provided an anti-racism document on multicultural relations, that document reportedly included information about Hispanic employees, including:
“a. Food: not everyone eats tacos and burritos;
“b. Music: not everyone dances to salsa;
...
“d. Mexicans (lower education level, some may be undocumented)”
The employees further claim that they were retaliated against by managers, most of whom were white, when they complained about working conditions to human resources, including having managers attempt to humiliate them, and were fired for discriminatory reasons, including their race and age.
The lawsuits seek punitive damages.
In a response sent to The Huffington Post (7/12/13), Target said the memo only went to one distribution center and was not part of official training curricula. The company apologized for distribution of the memo.
Both California labor law and federal labor law prohibit discrimination and harassment based on race. Harassing comments can be seen to contribute to a hostile work environment for employees, while job decisions - including hiring, firing and disciplinary actions - cannot be made for discriminatory reasons, such as race, national origin or age.
Meanwhile, Apple Inc. faces a lawsuit alleging its employees were not properly paid for overtime. The two plaintiffs allege they were forced to stay during unpaid breaks and after they had clocked out from their shift to have their bags searched. According to court documents (found online at gigaom.com), those bag searches could take between 10 and 15 minutes each, time for which employees were not compensated. Because the searches were done solely for Apple’s benefit, employees say they should have been paid for their time. One of the plaintiffs alleges the extra time adds up to around $1,500 a year.
The Apple lawsuit, case number 3:13-cv-03451-EDL, seeks unpaid wages, overtime and penalties.
Where Are California Labor Laws When You Need Them?
A few months ago, Casandra thought she was coming down with the flu and called in sick. She took a day off work, and that night she told her General Manager - by text message - she was getting worse and they needed to find someone else to open the restaurant the next day.
“This restaurant is part of a franchise; they have seven other restaurants with about 70 servers so they could easily have found someone to take my place and open the next morning,” says Casandra. “I never called in sick, and in fact, I was their top waitress so what happened to me was utterly surprising.
“Two days later I received an e-mail from the GM, which was also surprising. She told me to return my keys to the restaurant when I pick up my final paycheck. So I assumed I was terminated, even though she couldn’t come right out and say so. I didn’t go back right away, one reason is because it was a 45-minute commute each way.
“And I was heartbroken. We worked so well together for all these years; we even opened this restaurant together and (I thought) we were also friends. The following week I went to a doctor who told me that I was pregnant and I had a blood test. The results showed that my blood count was too low and my doctor said I likely had a miscarriage. That was confirmed a few days later, and I think that was due to the stress of getting fired.”
Casandra didn’t reply to the GM’s e-mail. The following week she handed in her keys, got her last paycheck and filed for unemployment. Another surprise: her employer appealed the decision, saying that Casandra quit. “I guess the employer didn’t know that the GM sent me an e-mail, firing me,” says Casandra. “The employment Development Office was on my side. They said that I deserved to get unemployment, but I only received three unemployment checks.”
Casandra admits that she doesn’t understand anything about the appeals process. She was supposed to attend a scheduled hearing but thought that the appeal was already taken care of because she was receiving benefits. “Because I didn’t show up at the hearing, the employer automatically won the decision of the appeal, so as of June 28, I no longer get unemployment benefits.
“I tried to call the California Unemployment Department but trying to speak to a human is just about impossible. You cannot leave a message. Instead you get a message which says, “There are too many calls coming in and not enough employees due to federal budget cuts so please try again later.” At that point I went online and filed a claim with LawyersandSettlements. I don’t know who else to call or where else to go.”
Casandra has no idea why she was fired unless it is for personal reasons. “To make this story even longer, I was in a relationship for several years and we separated. My ex-boyfriend later asked the GM for work and he got a job as a cook - at the same restaurant as me. He is still working there.”
Casandra doesn’t want to believe that is the reason: how could a business operate with policies outside of the California labor code? Now her only recourse is to file a California labor lawsuit, and get another job.
“I dedicated myself to this company and loved my job and this is what I get in return,” she adds. “I am devastated; getting wrongfully terminated is more than a slap in the face.”
California Labor Law Taking the Heat
This was aptly and tragically demonstrated earlier this month when at least one of two farm workers allegedly succumbed to heat exhaustion and died during extreme conditions in Tulare and Fresno counties. According to the Visalia Times-Delta (7/11/13), a 30-year-old worker collapsed in a field while loading melons in the Coalinga region, with another succumbing in extreme heat while inspecting irrigation lines in a Richgrove orchard.
Both men died. The irrigation inspector, according to reports, was 45 years of age and preliminary investigation suggests the man, Juan Ochoa, may have perished due to ongoing health issues. Laboratory results were still pending, and while heat stroke was not a major consideration at the time of the initial investigation, the impact of extreme heat and working conditions remained a possibility until conclusively ruled out. Ochoa’s employer, Etchegaray Farms LLC, was issued an Order Prohibiting Use by the California Division of Occupational Safety and Health (Cal/OSHA), effectively stopping work at the operation until compliance could be achieved.
In the first case, Cal/OSHA was investigating the potential for a heat-related death, which would be a violation of California labor code.
Maria Bautista knows all about heat. In comments appearing in the Visalia Times-Delta, Bautista reflected on her days as a teenager picking grapes on a farm in extreme heat. “They were very strict in the fields. They didn’t let us drink water, they didn’t like us spending time eating,” she told the Visalia Times-Delta. Now 35, Bautista is married and now lives in Chicago.
But she recalls those times - days of extreme conditions and employers racking up violations to California labor employment law. “It was very tough,” Bautista said. “They didn’t give us breaks, at all. You had to start working at 6 in the morning and stop at 3 or 4 [in the afternoon], even on hot days.”
If there is good news - even in the face of two deaths this month - it’s that overall the situation appears to be improving. The state brought in statutes known as Heat Illness Prevention Standards, which became part of the California labor code in 2006. Bautista, back in the state visiting her mother who continues to toil in the picking industry as a supervisor, noted that workers are more closely monitored and especially when conditions reach the extremes seen this summer. Workers are encouraged to take breaks, rehydrate and rest in shaded tents.
It should also be noted that restrictions imposed by Cal/OSHA on Etchegaray Farms were quickly lifted when the operator became compliant with California and labor law. And grower’s trade groups and associations report a move toward more responsibility in the fields, such as starting and ending the picking day early, and sending workers home at 2:00 p.m. when temperatures climb past 100 degrees, or increased humidity makes it feel that hot.
That hasn’t placated the president of the United Farm Workers. In a written statement, Arturo Rodriguez had this to say following the death of Ochoa on July 5: “This only proves that whatever the state is doing to protect these workers is obviously not working. With temperatures continuing to be over 100 degrees in the week to come, we need to see immediate compliance with all laws by all employers, which the state should encourage with aggressive enforcement of California’s Heat Illness Prevention regulation.”
It is not known if the families of the two men who died are considering a California labor lawsuit. According to industry leaders, it is the responsibility of the growers and labor contractors hired to source workers, to provide water, sufficient shade and breaks according to California state labor laws.
Fast Food Joints Sizzling with California Labor Law Violations
Employees at Five Guys Burgers are flipping more than burgers. Both former and current workers have sifted through pages of legal documents and filed a class-action lawsuit against the burger company, claiming California overtime and meal break violations on behalf of the company’s non-exempt, hourly California employees. Originally filed last November 2012, Gutierrez v. Five Guys Operations (Case No. 37-2012-000-86185-CU-OE-CTL) is currently pending in San Diego County Superior Court for the State of California.
Besides claiming non-payment of overtime and meal breaks, the class-action complaint also alleges that Five Guys Burgers failed to provide the proper amount of overtime wages and also failed to provide to their non-exempt, hourly employees in California all legally required thirty (30) minute uninterrupted meal breaks.
The California Labor Code dictates that non-exempt hourly employees must be paid overtime for any hours worked in excess of eight in a workday, and 40 in a workweek must be paid at 1.5 times the employees’ regular rate of pay.
Over at Taco Bell, plaintiffs in several class-action lawsuits filed between 2007 and 2010 were finally granted certification in January 2013 with respect to the late meal break class. YUM! Brands, Inc., the world’s largest quick-service restaurant company with over 39,000 units in more than 125 countries and territories (that are primarily made up by its KFC, Pizza Hut and Taco Bell), continues to defend itself against a consolidated wage and hour litigation in California, according to the Company’s April 29, 2013, Form 10-Q filing with the U.S. Securities and Exchange Commission.
Taco Bell Corp. was named defendant in the class-action suits alleging violations of California labor laws, including unpaid overtime, failure to timely pay wages on termination, failure to pay accrued vacation wages, failure to pay minimum wage, denial of meal and rest breaks, improper wage statements, unpaid business expenses, wrongful termination, discrimination, and conversion and unfair or unlawful business practices in violation of California Business & Professions Code Section 17200.
Furthermore, a number of former Taco Bell employees are also seeking penalties for alleged violations of California’s Labor Code under California’s Private Attorneys General Act as well as statutory “waiting time” penalties and alleged violations of California’s Unfair Business Practices Act. The Plaintiffs seek to represent a California statewide class of hourly employees.
According to calculations by the Federal Judicial Center, US employers have seen an increase in the number of wage and hour lawsuits filed against them in federal court, and California is no exception. A recent article in Corporate Counsel said in 2003 that the number of federal cases nearly doubled, from 2,035 to 4,055. By 2007, they had increased to 6,786.
Meanwhile, fast food franchiser Alia Corporation (which has more than 20 outlets in California) agreed to pay $100,000 to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC). The lawsuit was filed in 2011 on behalf of a former floor supervisor with an intellectual disability who was demoted to janitor when Alia took over. The EEOC alleged that Alia cut his hours and reduced his hourly wages, thereby forcing him to find other employment and resign by June 2009. The EEOC argued that Alia had engaged in disability discrimination that violated the Americans with Disabilities Act (ADA).
California Labor Lawsuits Expose Seedier Side of Hollywood
One lawsuit was filed against CBS Studios and one of its employees - a set designer - alleging the set designer offered a woman a job for $10,000 a month if she would have sex with him and give him her pay from her first month of work. After the woman agreed, and carried out her part of the agreement, she alleges he harassed her. According to Courthouse News Service (7/2/13), the victim alleged she was threatened with termination unless she agreed to be the man's girlfriend and she was sent inappropriate text messages.
The lawsuit alleges the man’s bosses knew about the behavior but did nothing to stop it. When the victim continued to refuse the man’s advances, he reportedly threatened to blackball her and defamed her. The lawsuit seeks damages for sexual harassment and retaliation.
Meanwhile, two interns who filed a lawsuit against Fox Entertainment Group were given a summary judgment victory. The Hollywood Reporter (6/11/13) writes that a judge found that Fox Searchlight was the interns’ employer, against Fox’s argument that a production company - and not Fox - was in fact responsible for the employees. The judge found that the two interns were employees and not interns.
The judge also certified a class action to examine internships at Fox. Fox has said it intends to appeal the ruling, but more lawsuits are being brought forward against the company, alleging unpaid interns should be paid for the work they are doing, and failure to pay is a violation of California labor law and the Fair Labor Standards Act.
The findings from this lawsuit could set a precedent for other unpaid internship claims in Hollywood.
California Overtime and Home Healthcare Workers
In December 2011, the Obama administration proposed regulations to give the nation’s nearly two million homecare workers minimum wage and overtime protections - workers who have been exempt from both protections. (A decision is expected within the next few months.)
In California, about 360,000 largely unionized homecare workers are employed by In-Home Supportive Services, a state program subsidizing homecare services for around 450,000 elderly, blind and disabled residents. But many workers, such as “personal attendants” and those employed directly by private households such as babysitters, are not paid overtime.
Under the California labor law, home healthcare workers are protected by the state’s minimum wage and overtime laws, but revising the FLSA would mean new overtime rules on California. Some people - including California Governor Jerry Brown - opposing this proposal estimate it will cost $150 million per year. The Los Angeles Times reported that Governor Brown would likely respond to the new rule by limiting the hours state homecare workers may work, effectively cutting the amount of care beneficiaries receive and pitting advocates for the disabled against labor.
California is one of 16 states that already extends minimum wage and overtime protection to home healthcare workers. The general rule in California is that all employees are entitled to overtime for work past eight hours in a day. In the healthcare field, however, many employers implement what is known as an “alternative workweek.” (Visit the state of California Division of Labor Standards Enforcement for more information on overtime laws regarding alternative workweek.)
Most of the home healthcare industry is also opposing this new rule. Industry officials argue that changing labor laws, particularly overtime laws, would result in decreased home healthcare workers’ hours and that, in turn, could force the elderly into nursing homes. On the other hand, the CSS and other proponents of the proposed rule say that these workers should have the same rights and protections, including California overtime laws, as other workers, and that increased wages and overtime pay will result in lower turnover rates.
The main reason that Congress proposes this rule change is to exempt “companions for the elderly” from FLSA protections, and thereby encourage friends and neighbors to help out the elderly in their neighborhoods and communities. It isn’t their intent to keep two million home healthcare workers from earning fair wages.
Meanwhile, industry groups are hopeful that the new rule will contain modifications to address their concerns. If it doesn’t, they will likely seek legal help.
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