California Labor Law News
In Attempting to Thwart Theft, Retailer Accused of Stealing Wages
Business Wire (1/18/12) reported last month that five lead plaintiffs have accused managers of routinely delaying them during their lunch hours and upon the conclusion of their workday, in order to conduct bag searches. Legal professionals close to the California labor lawsuit make the point that many retail associates at Forever 21 are under 18 and still in high school - and thus, don't understand their rights under the California labor code.
The five lead plaintiffs - Jazzreeal Jones, Jessica Ramos, Shanelle Thompson, Alyssa Elias and Tiffinee Linthicum - accuse Forever 21 of unnecessarily detaining them and potentially thousands of participatory plaintiffs after hours, when employees are on their own time and not getting paid.
Thus, the California labor lawsuit alleges that such delays result in unpaid wages.
This is not the first time Forever 21 has been on the radar of California and labor law. Eleven years ago, workers in six factories complained of unsafe and unsanitary working conditions. A lawsuit was launched, but the action was dropped when Forever 21 agreed to improve working conditions in their factories and duly pay workers the wages they were owed.
Forever 21 operates various factories and has about 500 retail locations in eight countries, with 100 stores in California.
The California and labor law complaint against Forever 21 is similar to an action filed against Polo Ralph Lauren in 2010, according to Business Wire. That California labor lawsuit resulted in a $4 million settlement. At issue is the practice, described as industry-wide, of detaining employees at the end of their shifts for routine bag checks, in an effort to thwart potential acts of shoplifting.
In so doing, however, legal advocates claim that the practice, in reality, is robbing innocent employees of wages. In detaining their employees, Forever 21 is requiring them to remain on the premises until the bag check is complete, while not paying them to stay later in order to facilitate the check. Legal experts claim that such a practice runs afoul with workers' rights under California labor employment law.
California Labor Law: Discrimination Caused Wrongful Termination?
Laquisha started working in sales at Verizon in 2007. She says that everything was fine until last November. "I got along with everyone at work except for one of my co-workers," says Laquisha. "I'm an African-American lesbian who dresses 'kind of butch,' and I guess this bothered him. He made some comments about how gays shouldn't be allowed to work in this environment. This wasn't the first time he had made discriminatory remarks??"someone I worked with told me as much??"so this time I decided to report him to the new director.
"I emailed the director??"he had told us to call him directly with any complaints rather than go to HR??"and he replied immediately. 'I am so sorry this has happened and I will get back to you a.s.a.p.' But instead of hearing from him, my immediate supervisor began monitoring my sales calls excessively. Our calls are always monitored at random, usually three or four every few days. The first day I worked after my complaint, she monitored five of my calls.
"Then my supervisor, who is white and straight, accused me of talking to my sister (who also works at Verizon but in a different department) while I was on the clock. But my sister asked this supervisor if she could talk to Sherita, who works nearby, and she was given permission to do so."
According to Laquisha, it would seem like her supervisor was intent on making trouble for her. Even though Laquisha has been "number one" in sales month after month, she got a verbal warning from this supervisor in early November. She kept her head down and concentrated on work, but by the end of the month, the stress was too much to handle.
"I was getting sick from so much stress," explains Laquisha. "I had anxiety and panic attacks, and my blood pressure reached an all-time high so I got a doctor's note and took stress leave."
Laquisha was scheduled to return to work December 23, but her supervisor phoned on December 19 and told her that she was fired. "She said that a customer called and complained about me, about how the sale went," says Laquisha, "and that is all she said. I was in utter shock, I couldn't believe it. She said that details would be in the mail. The only thing I received was a letter stating that if I have any property belonging to Verizon, to return it immediately. Then I received my final check.
"I bought my first house in June and I live alone. Now I'm wondering how I'm going to make the next mortgage payment. I firmly believe that I was terminated because I am black. And I am the fourth black person to be terminated since this new director was hired??"three of my co-workers were fired in December and the company wasn't downsizing. My sister thinks her days are numbered too.
"I worked here for four years and had a stellar work record. I have never been in any trouble regarding my performance. As well, my understanding is that you get a verbal warning and a written warning, then a final warning before termination. I just got a verbal warning, and that wasn't even justified.
"It's crazy to think this discrimination goes on in 2011; that a company such as Verizon could violate the California labor code in this manner. Since I was fired, I have received a number of phone calls from different employees and even supervisors at Verizon saying how wrong they are in firing me.
"I contacted an employment attorney through LawyersandSettlements and they are currently getting my employment records. I am looking for work but I don't want my job back. I think it would be fair to get compensated at my regular rate of pay??"including the average rate of my commission??"from the time I was terminated until I find a new job. That isn't asking much. But even more than that, Verizon should not be allowed to discriminate against anyone!"
Discrimination and wrongful termination are clearly violations of the California labor law. As well, Verizon may have violated the Americans with Disabilities Act by firing Laquisha while she was on disability leave. Her employment attorney is investigating…
Asian Nurse Cries Discrimination, Violation of California Labor Law
Faye says she was fired because she called in sick on two occasions - only twice since 2004. But it could have been for any reason. And Faye says that she and another Asian woman were the only people working at the clinic who were not Hispanic, and they were treated a lot differently than their Mexican co-workers, to their detriment. (Racial discrimination is also a federal offense: it is basically defined as occurring when a person is treated unfairly based on characteristics of his race or birthplace.)
"I called in sick right after Christmas because I couldn't even get out of bed, I was that exhausted," says Faye. "I left several messages with my immediate boss Gwen, telling her that I was too sick to come in and asked if they were OK. I got a call back; she said they were covered but I could come in to work that afternoon. I declined, feeling too sick.
"As it turns out, Gwen told her boss that I was OK and didn't know that I was scheduled to work. Gwen texted me twice that night and phoned around 11pm, telling me to phone the boss. I told her that I would be able to work the next day.
"Apparently Gwen also told her boss that I took the day off to go for job interviews but that wasn't the case, I really was sick. She kept arguing with me over the phone, saying I told Gwen otherwise. She told me not to come to work and would set up an appointment with the three of us to get to the bottom of this issue.
'On second thought I am suspending you as of today so don't show up to work tomorrow,' she said, right out of the blue. 'Instead I want you in my office.' I met her at 11am the next day in her office but Gwen wasn't there.
"Apparently Gwen is not confrontational. We talked for about 30 minutes about me calling in sick and in the end they said I would get a call next week regarding my schedule.
"The next week I went back to her office and I was terminated, because I didn't show up for work. I was given my last paycheck and walked out of the building. I was so upset, and I still am.
"People call in sick all the time, but when I called in sick, I was harassed. And this happened once before. I believe I was discriminated against because I am Asian. The majority of people at this company are Mexican, and we all get along very well, but a lot of things they do were not right.
"For instance, one Hispanic group often took long lunch breaks without going off the clock. Then they would bring their lunch into the office and eat it. I could never do that and not get reprimanded. They often call in sick and there is never any recrimination, only with me. Another Asian girl works here; she opens the clinic at 3am along with a Hispanic girl who is always late. But instead of the late girl getting disciplined, the Asian girl got into trouble. She called me at home, crying. She got into trouble because she called the boss about her co-worker being late.
"It is so important that we are on time. Two nurses are needed to open and get the machines going, so if someone is late, it means that the patient is going to suffer. This job has no room for error or being late."
Faye says that her boss never even listened to her side of the story. Instead, the decision to terminate Faye was based on heresay, what Gwen said. "I didn't even get a chance to defend myself," she says, frustrated. Perhaps she will get a chance, with her labor law attorney.
US Appeals Court Revives Oracle California Labor Law Case
According to the news source, the court is basing its ruling on a state court decision that employers in California have to pay nonresident workers for overtime work performed within the state.
Reuters reported that the US Court of Appeals for the 9th Circuit reversed a federal district court ruling in favor of Oracle. Under the California wage and hour laws, the appellate court found, Oracle could be liable for unpaid wages if it did not compensate out-of-state computer trainers for overtime work they performed within the state.
Oracle employees who were residents of Arizona and Colorado had sued the company for not paying them overtime for work performed in California. The trial judge granted summary judgment in favor of Oracle, according to the news source.
As part of the appeal, the 9th Circuit asked the California Supreme Court to provide guidance as to whether the state's labor code applied to nonresident employees when they are performing work within the state.
According to the news source, the California high court ruled that it did apply, finding that not applying the state's law would be motivation for companies to substitute lower-paid temporary employees from other states.
"The 9th Circuit agreed with the Supreme Court's common sense analysis: If you're a business in California, you will have to comply with California's overtime laws. You can't treat people differently because they live in a different state," a lawyer for the employees told the news source.
The 9th Circuit sent the case back down to the district court for further proceedings following the judgment.
Business Insurance reported that this is the second time the 9th Circuit has ruled on the issue. A 2008 case was brought to the court regarding the same issue of out-of-state residents and California labor law.
California Labor Law: Sexual Harassment Workplace Hazard
Mary dealt with sexual harassment from her boss for the past two years. About four months ago she couldn't take it anymore so she called the California Labor Commissioner’s Office to inquire about filing a California labor lawsuit against her employer. That call prompted her to quit her job and hire an attorney.
"On my third day of work, the owner of the company started to hit on me," says Mary (not her real name). "He started harassing me by making comments like 'You're looking really hot today,' or 'There's something wild about you,' and he would just leer at me.
"That was bad enough and I just put up with it, fearing that I might lose my job if I told him to stop making lewd comments. Then he told me that my customers (I was in sales and worked on commission) wanted me sexually and I was only making sales because of that. It got to the point where I was afraid to bring customers to the office or even talk to customers because I felt too dumb to get a sale on my own. Either way he was putting me down. And as you can imagine, my self-esteem was virtually non-existent."
Mary adds that on several occasions he harassed her in front of co-workers. While that in itself is demeaning, it can likely work in Mary's favor??"a dispatcher and office manager have promised to testify in court. And according to Mary, her office manager was sexually harassed.
Mary adds that she was also discriminated against. She was the first salesperson to be hired, but during her two years of employment, several men were hired, all of whom received a higher base salary and more commissions than Mary.
"I didn't find out that I was discriminated against for a long time but I had my suspicions," Mary explains. "One guy told me, when he was first hired, that he couldn't afford health insurance for his family, but several months later he showed me a diamond ring that he bought for his wife. It was hurtful, to say the least, especially because I was the only salesperson meeting the quotas but getting less commission."
After Mary phoned the California labor board and decided to seek help from a California labor law attorney, she wrote a resignation letter. "This guy harassed me for too long and I don't want to be a victim anymore," she says. "After I quit, it felt like I just got out of prison. But my self-esteem is still non-existent and I have anxiety attacks."
Given the fact that Mary put up with sexual harassment for two years, her health problems could be a lot worse. And all too often, symptoms of sexual harassment are unrecognized. Last month myhealthnewsdaily listed these six side effects of sexual harassment (of course there are many more):
• Depression
• Post-traumatic stress disorder
• Elevated blood pressure
• Sleep problems
• Neck pain
• Suicide
According to Amy Blackstone, a sociologist at the University of Maine, about 70 percent of women and 45 percent of men have experienced some form of sexual harassment in the workplace. Not only are they working in a hostile environment, they are also at risk for physical and psychological health problems, and sometimes they can cause irreparable damage.
Some people may ask why Mary stayed at her job for two years, or why she didn't confront the owner. Like so many in her situation, she was afraid of losing her job.
"You make the best of the situation and take it, what else can you do?" she says. "I was afraid, especially in these economic times, but this guy should be accountable and he has to stop. And it isn't just me that he targeted; now that I have a lawyer we are considering a class-action suit against him."
As for the discrimination issue, Mary says she doesn't know how to figure out the monetary damages. "Who knows how much he was paying these guys, how much would I have made if I had the same opportunities as they had?" Mary's labor law attorney can help.
Under federal law, the EEOC's definition of sexual harassment is "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment." That definition also applies under California law.
Third-Party Walmart Warehouse Pay Lawsuit Apparently Not a New Problem
There is no signage on such warehouses, which are owned and operated by the logistics company under contract to Walmart, according to the writer. The workers, identified as mostly Latino, are not paid by Walmart but rather work for, and are compensated by, the warehouse owner. Investigators determined that workers were paid in piecemeal fashion according to the number of containers they moved, at rates of pay not articulated to the workers or reflected on paychecks.
The logistics company was subsequently fined just shy of $500,000 for various violations to California labor code, and six warehouse workers subsequently filed a lawsuit in federal court seeking back wages and other forms of compensation.
Other workers toiling for similar warehouses in California and Chicago have launched lawsuits claiming their pay does not reflect the hours worked or tasks performed. While promised a rate of pay higher than that of minimum wage, paychecks have failed to properly reflect all hours worked. The resulting shortfall in hours serves to begat an actual rate of pay that comes in lower than the minimum wage rate in Chicago or mandated under California and labor law.
Judging from previous press reports, this is far from a new problem…
It was two years ago this month that the Chicago Tribune published the comments of plaintiff Miguel Deniz, who had visited a Chicago church with 20 of his co-workers, looking for help.
"I worked 57 hours and I only got paid for 35," said the 62-year-old Deniz. "I think it's unjust that we're not getting paid complete hours and for overtime. We're being defrauded."
In early December of 2009, Deniz joined seven other workers in the filing of a class-action lawsuit against SelectRemedy, an independent contractor doing work for Walmart. SelectRemedy was named as the defendant, although Walmart wasn't mentioned. In a statement published December 11, 2009 in the Chicago Tribune, a spokesperson for Walmart indicated that the retailer tries to comply "with all labor laws and regulations.
"And we rely on our third-party vendors to do the same," said Walmart spokeswoman Michelle Bradford.
In California, US District Court Judge Christina Snyder was reported to have issued a preliminary injunction requiring agencies that hire temporary workers to alter their pay practices, in an attempt to persuade the agencies to better conform to California state labor laws. It was issued October 31 of this year.
Panera Bread Settles California Labor Law Dispute
The news source reports the class-action lawsuits were filed by former employees who claimed the cafe chain did not pay overtime or provide breaks to them at stores in California.
While Panera noted in the regulatory filing that it has set aside $5 million to settle the claims, the California Superior Court still needs to approve the settlement, according to the news provider. Additionally, Panera has reportedly denied any wrongdoing and did not make any admission of guilt in the proposed settlement, according to the filing.
The Dispatch reports that in the lawsuits, which were filed in 2009 and 2011 in the counties of Contra Costa and San Bernadino, former Panera employees accused the company of violating the California Labor Code.
In addition, the plaintiffs claimed Panera failed to provide meal and rest periods and "termination compensation," and violated California's Unfair Compensation Law.
Panera is not the only corporation to have been hit with allegations of labor violations recently, as California Labor Commissioner Julie A. Su recently issued additional citations totaling more than $600,000 against Premier Warehousing Ventures for issues uncovered during an inspection on October 12.
According to a release from the state's Department of Industrial Relations, the citation was the result of the company's alleged failure to provide proper wage statements for its workers. The Labor Commissioner also said the company failed to keep its payroll records in the state, which was another violation.
"We hope this citation sends a message to all employers in California that when the failure to keep and provide records as required by law is part of a concerted effort to deny workers their hard-earned wages, we will not tolerate it," Su said in a statement.
Some California Labor Law Applies to Nonresidents
Last month, a group of nonexempt employees traveled to Sacramento, where their HQ is based, from New York to work on a project that lasted about 45 days. They all worked long hours, typically 60 hours per week. The workers were familiar with the Supreme Court ruling last June because when they returned to New York, they indicated on their time sheets that overtime pay was due, as well as meal and rest breaks.
Just like those employees at Oracle Corporation, the new ruling applies to the New York workers - at least on the overtime issue. The Oracle employees sued the company (Sullivan v. Oracle Corp) for unpaid overtime wages under California's overtime and unfair competition laws. The Ninth US Circuit Court of Appeals (which covers California) asked that the California Supreme Court weigh in, and it found that out-of-state employees working in California for a California-based employer are entitled to the protections of California's overtime laws.
The court further wrote that "To exclude nonresidents from the overtime law's protections would tend to defeat public policy goals by encouraging employers to import unprotected workers from other states."
But the California court's decision didn't include meal and rest breaks, nor did it address other California labor laws pertaining to nonresident employees working in California under the same circumstances as residents. Furthermore, the court didn't rule on whether or not the California overtime law applies to nonresident employees who are working temporarily in California but their employer has headquarters in another state.
It is understandable that employers, and even out-of-state employees, may not understand the new nonresident ruling. And it is very likely that a number of lawsuits regarding nonresidents and California labor law issues will be forthcoming. Regardless, employers should expect to incur overtime costs when sending employees to work on a temporary basis in California. If not, they may be facing possible liability. And before sending employees to California, it might be a good idea to seek legal advice from an experienced California employment attorney.
Iraq Veteran Claims Discrimination, California Labor Law Violation
Before Marcel could work as a security guard he was required to attend two orientations with hospital staff. The second class was cancelled; when Marcel phoned to verify the time and location, no one answered.
"I tried calling my supervisor then the district office and finally, two days later, I got a call from the district manager," says Marcel. "Now this part gets rather confusing: He made some inquires and apparently the hospital blew me off but this guy said I could get a security job with another company - he was like a sub-contractor."
Marcel was asked if he had any limitations and, again, honestly disclosed his brain injury. "I get migraines a few times a week, which limits my work and my eyes get light-sensitive," Marcel explains. "He asked if the supervisor at the hospital knew about my limitations and yes, the hospital was aware of my situation. I was hired to work the following Monday - I just had to sit in an office and watch the security cameras, and I could get someone to relieve me if I got a migraine."
Come Monday morning, Marcel got a call - he was pulled from the schedule due to his injury. This was devastating news - and why was Marcel promised work, only to be discriminated against - which goes against the California labor code?
Marcel does collect Veteran's disability benefits, which amounts to $3,200 per month - but he has a family to support; his wife is epileptic and unable to work, and his son is autistic. Marcel really needed this job.
He recently had a court hearing to apply for social security disability but was denied because he has a college education. "According to the Social Security Administration my disability is irrelevant to my education," Marcel explains, "but I just got a new evaluation from the VA, and due to nerve damage on my face and migraines, I am house-bound.
"I would like to make a California labor law discrimination claim against the security company. Why did they lead me on?" Why, indeed.
California Walmart Warehouse under Investigation Due to Alleged California Labor Law Violations
The warehouse, located in Riverside County, California, is operated by Walmart contractor Schneider Logistics and handles a significant amount of the corporation's goods in the state.
The team of investigators from the labor department found that two of the temporary staffing agencies who supplied the manual laborers had not been keeping track of how much money workers were owed, according to the news outlet.
One of the firms, Impact Logistics Inc., was issued a $499,000 fine for not providing itemized wage statements to the workers who were in charge of unloading and loading the products from the corporate giant. The agency was also hit with a warning for failing to maintain time records.
Another staffing agency, Premier Warehousing Ventures, was issued a similar warning, the Post reported. The two agencies supplied more than 200 workers to the site.
Following the issuance of the warning a spokesman for Impact Logistics issued a statement.
"It is our utmost goal to be one hundred percent compliant with the state's laws concerning wage requirements for employees, and we consider our people to be our company's greatest asset," the individual noted.
Jim Pittman, the chief operating officer for Premier Warehousing Ventures, told the Post that the company plans on proving that it was in compliance with the state's labor law.
"My employees mean the world to me," Pittman said. "It is our intent to abide by all of the labor laws whether it be in California or the other states we work in."
None of the employees who worked in the warehouse work for Walmart directly, but the products that are loaded and unloaded in that location were headed for the shelves in the company's stores, according to the news source.
Several employees voiced their displeasure with the work conditions that existed at these sites, as they noted the lack of breaks and long hours that were required, the North County Times reported.
"I went 28 consecutive days without a day off," Juan Chavez, speaking through a Spanish interpreter, told the news source. "There were no lunch breaks, no rest breaks."
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