California Labor Law News
California Labor Law: "Retaliation Means More Ammo for Me," Says Chauffeur
"I've been working with this company five years and our gratuities are included; they are automatically billed to the client," says Brent, "but we never get our tips??"and that includes about 30 of my co-workers; we're all in the same boat. And that's just one complaint with this company…"
Brent also says that all the employees have overtime issues with the company, and believe the company is making the most of today's economic problems. "I work 7 days a week, minimum 10 hours per day and sometimes up to 18 hours a day at my regular rate, which is $14 per hour," Brent adds. "I've complained to management on several occasions; the last time I brought up the subject of overtime at our regular chauffer meeting, the owners said, 'At least you have a job.'
"All of us employees are in a Catch-22 situation; - we're danged if we work overtime and danged if we don't. If we move on to another company, it will take two or three weeks before getting a paycheck. In the meantime we might as well keep going on. We get paid every two weeks and according to the California labor code, our tips are supposed to be included. Even though this isn't the job I want, it pays the bills, barely.
"To make matters worse, and the reason I am working so much overtime, is that my wife is sick - she has a brain tumor - so I have to keep up my medical insurance. The way it works with my company is that they take $332 out of my checks every two weeks to cover medical insurance; it would be decent if they added my gratuities. (My bosses know about my wife's illness.)
"My co-workers are afraid of complaining and I can totally understand; they are afraid of retaliation. And six chauffeurs were recently hired but only two are still working. I presume they were smart enough to read through the lines and see what was going on."
(If your employer retaliates against you in any manner whatsoever, that is a violation of the California labor law. For instance, if you object to your boss crediting your tips against your wages, you can file a discrimination/retaliation complaint with the Labor Commissioner's office and/or file a lawsuit in court against your employer. A wage and hour attorney can help.)
"I'm hopeful that I will file a lawsuit against this limo company," says Brent. "I know that I have a strong claim in this matter and I know it will take a little time, but an experienced attorney will probably help and I am told it would probably not take as long as trying to do it myself. I am willing to go the distance because no one should be treated this way. I haven't phoned the California labor board yet, because I know there is going to be retaliation, but at the same time, that will be more ammo for me."
"The driver's gratuities are included as part of the client's bill," says Penney Kemp, manager of Hancock Limousine Services. "We pay our employees all of their tips, every two weeks on their paychecks. We've been in business 12 years and have never done otherwise."
Some limo companies pay their drivers barely more than minimum wage, so they rely on tips to pay their taxes. Unfortunately, some drivers cannot rely on their employers to treat them fairly.
Levi Strauss Agrees to Pay Back Wages in California, US
The root issue of the violation is misclassification. But not everyone. The investigation found that the issue depended upon when an employee was hired by the company. To that point, it was found that employees working at previously existing stores were exempt from overtime. However, newly hired employees were not. It was found, according to an investigation by the US Department of Labor, that new hires were treated the same as existing employees.
They shouldn't have…
Assistant store managers were required to work off-clock during openings and closings early in the morning and late at night, respectively. Staff shortages were also occasions when assistant store managers were called upon to take up the slack, without fair compensation. As the investigation was first conducted by the San Francisco District Office of the Labor Department's Wage and Hour Division, the violations are rooted in California labor code.
Levi Strauss Co. is based in San Francisco.
"Misclassification of employees has serious and adverse consequences for employees, as well as for corporations," said Secretary of Labor Hilda L. Solis. "When violations of federal labor laws are discovered, this department will take appropriate action to ensure that workers receive the wages they deserve."
Even though the issue affects employees across the country, the investigation also uncovered misclassifications at Levi Strauss headquarters in California??"although it is was not clear why employees with more tenure were exempt from overtime, whereas more recent hires were not.
As a result of the California and labor law investigation, Levi Strauss agreed to pay back wages for a period covering two years to affected employees. The company also made a commitment to undertake an upgrade of its systems governing tracking time and attendance.
Levi Strauss has operations in Santa Clara, and thus is bound by California labor employment law.
California Labor Law: Discrimination Goes Both Ways
"My daughter worked at this theater for more than a year but she never got any training except for the concession," says Leo in an e-mail. "She was promised full-time employment, but sometimes she only got a few hours per week if her Asian co-workers needed the hours." Leo goes on to say that his daughter was harassed and discriminated against to the point where she had a mental breakdown and had to be hospitalized. She didn't return to work.
According to Leo, the managers, all of Asian descent, gave their Asian employees promotions, better positions and more hours.
"Employees who are Hispanic or African American are treated like third class citizens. They have even been physically pushed and humiliated. My daughter was laughed at by one manager who later asked her 'What are you going to do about it?' These same managers have been reported by other managers for abusive behavior and discrimination, but HR has not done anything. For the last seven months that my daughter worked there, the harassment escalated, week after week. There are many other employees with similar situations??"they have felt displaced by their newly hired Asian co-workers and have suffered some form of California labor abuse but have been told that they would be fired if they complained." Not only is discrimination and some forms of harassment against the California labor code, so is retaliation.
Sexual harassment is a California labor law violation, as Cindy (not her real name) is aware of. What happened to Ian (also not his real name) is the flip side of the above situation.
"Part of my job as department manager is to monitor the staff, including their breaks," says Ian, in an e-mail. "I had to write up a female employee for abusing break time (her 15-minute break became 55 minutes on several occasions, and again for yelling and insulting me in front of staff). In response to my reports, she falsified an e-mail and falsely accused me of sexual harassment."
Ian states that upper management looked for evidence of the e-mail in question but can't find it. However, if you dig deep enough, just about every e-mail is traceable. According to Ian, he then asked local management to pull all of his e-mails, but they refused, saying there was too much work to be done and they didn't have the resources to investigate.
"So that leaves me in extreme stress as this woman daily displays and promotes hatred, discrimination and harassment towards me."
Misclassification and Mismanagement under California Labor Law
Hobby Lobby, the home décor chain with about 400 stores nationwide, hired Edward as a co-manager (not assistant manager). He was promised a five-day workweek, about 55 hours per week and a salary for $900 per week. Instead, Edward says that for the first six months, he worked six days per week including Sundays and 12 hours per day - in other words, 70 hours per week. Wait, it gets worse…
"Then they transferred me to Las Vegas where I worked from 6:30 am 'til 7:00 pm or even 8:30 pm when we closed, 6 days a week," says Edward. "They send out this locked schedule to co-managers from the Hobby Lobby corporate office but you never work those hours. All I did was labor intensive work - I unloaded trucks and loaded boxes; I did all the stocking and merchandising and learned a small amount of management - probably about 10 percent."
(According to the California labor code, assistant store managers working on salary over 40 hours a week and who perform non-exempt duties such as those described by Edward could be entitled to overtime pay.)
Still, in Nevada, Edward was asked if he would go back to California for seven weeks to help open a new Hobby Lobby store. “I would be helping the store manager with hiring and managerial tasks so I accepted the job,” Edward explains. “Instead, I unloaded trucks, and did 80 percent of the labor, 12 hours per day, 6 days per week. (The manager told me that he couldn’t work more than 50 percent of manual labor duties; instead he had to delegate the labor to me, otherwise he would be owed overtime!)
“At the end of the seventh week, they hired two co-managers to replace me but they didn’t call them co-managers. In the state of California you have to call them another name because if you work more than 40 hours per week, you have to be paid time and a half. This way, the company didn’t have to pay salary or overtime.
“Two employees with an hourly wage and no overtime was a better deal for the company than having me on salary without getting paid overtime, because the company knew that, according to California labor law, they would have had to pay me overtime.
“When I got back to Las Vegas I asked why I wasn’t paid overtime in California: I was supposed to be paid hourly because I was doing manual labor. My boss told me to send the head office a letter stating how much money in overtime they owed me, which I did. I figured they owed me $4,000. But they replied that they owed me nothing because I was exempt and I was hired through Nevada; apparently working in California didn’t count.
"I find this very hard to believe and I'm sure an attorney will confirm that Hobby Lobby has violated another California labor law.
“Interestingly, I worked in the State of California about 10 years ago as an assistant manager for a grocery store called ‘Smart and Final.’ A cass action was filed against them and the company paid overtime compensation owed to assistant managers. I received a check in the mail about five years ago - a very pleasant surprise - for more than $5,000.”
Edward was recently terminated from Hobby Lobby. According to the online legal resource tool law29.com, a nationwide investigation is underway regarding the company's alleged violations of federal law for failure to pay its Co-Managers overtime pay.
“If it was a good company and they stood behind me, I would have stayed longer,” says Edward, “but since they have lied and terminated me, I am in the process of finding an attorney who will help me get compensated for what is owed to me.”
Theatres in California among Those Cited for Labor Law Violations
In this particular case, the operators of three large national cinema chains were hammered by the US Department of Labor for alleged violations of child labor laws. Theatres operated by Regal Cinemas Inc., Marcus Theatres Corp. and Wehrenberg Inc. have already paid fines relating to allegations that teenagers were allowed to work too many hours and operated dangerous machinery, in contravention of child labor laws.
The 27 theatres investigated are located in nine states, including California. The other alleged offences were described as occurring in Illinois, Indiana, Minnesota, Missouri, Nebraska, Ohio, South Carolina and Wisconsin.
According to the March 2 edition of the Columbia Daily Tribune, about 160 young employees were allowed or mandated to perform hazardous jobs requiring the use of machinery that carried some risk. The operation of motor vehicles, paper balers, trash compactors and power-driven mixers while baking were all cited as contravening the youth employment provisions of the Fair Labor Standards Act.
The US Department of Labor pointed out that 17 hazardous jobs are identified, under law, as inappropriate for workers under the age of 18. Times of day, and the number of hours worked are also restricted under the law, according to the Labor Department. Marcus Theatres, according to a Labor Department release, failed to honor those provisions.
Fines paid by the three corporations totaled $277,000. Regal paid the largest bill, at $158,400. All three companies??"including Regal, which is billed as the largest with 6,683 screens??"were cited for allowing youths to load and operate trash compacters.
Marcus, which paid fines totaling $93,995, and Wehrenberg at $25,080, were both cited for allegations that youth workers were allowed to operate motor vehicles.
The types of motor vehicles were not disclosed.
"The penalties imposed as a result of these violations should serve as a wake-up call to movie theatre owners and other employers," Labor Secretary Hilda Solis said in a statement. "Businesses that employ minors are legally and ethically obligated to abide by child labor standards and ensure youth are protected on the job."
Adult, as well as underage workers in California are protected by federal labor laws??"as noted above??"as well as provisions entrenched in California state labor laws, all designed to protect the rights and the safety of workers.
California Labor Law: C&S Grocers Class Action—Again
C&S has to be one of the worst companies in the United States to work for. This latest class-action suit alleges that the second-largest wholesale grocery store supplier in the United States misclassified warehouse supervisors as exempt to avoid paying overtime, did not allow employees to take meal and rest breaks or pay them for these missed breaks, failed to pay them minimum wages, and failed to keep accurate payroll records and supply accurate wage statements.
Not only has C&S allegedly failed to pay its employees overtime pay, it has also been accused of punishing workers for mistakes on the job by decreasing their wages! Yes, this practice apparently takes place in the US today and not in Siberia during the 20th century. Pay decrease is prohibited under the California labor law and in every state where C&S operates.
C&S must have deep pockets, or believe it is above the law, or both: a nationwide class action in 2006 was filed by C&S employees seeking $750 million in unpaid wages and overtime under the Federal Fair Labor Standards Act and state labor laws in each of the 14 states, including California, where the company operates warehouses. This suit applied to workers who have been employed by C&S since 2000, with identical violations.
According to attorneys who represented the plaintiffs in 2006, C&S “violates federal and state laws by illegally chopping workers’ wages as punishment for mistakes on the job; failing to pay overtime; failing to pay for time worked in excess of 10 hours; failing to pay employees their agreed hourly rates; and encouraging employees to work off-the-clock and through lunch without pay.”
A lead attorney for the C&S employees said that “C&S punishes an entire team of workers for one person’s mistake. C&S employees work in 4-8 member ‘selection’ teams. If one team member makes an error, for example selecting a case of apple juice instead of grape juice, C&S collectively punishes everyone on that team and cuts their pay.”
Meanwhile, the company projected record revenues of $18 billion for 2006, thanks to their employees for making profits possible.
The Sacramento suit was brought on behalf of warehouse supervisors or employees who held similar job titles and/or performed similar job duties, and who worked for C&S in California from February 3, 2007, to the present. About 20,000 people are employed by C&S nationwide. In 2006, Forbes magazine listed it as the seventh-largest privately held company in the United States. Shame on you, C&S.
Is Pharma Rep Overtime Debate Destined for US Supreme Court?
Law Suits are often the only way to settle it. And sometimes it settles nothing.
Pharmalot reports that a federal appeals court ruling from Valentine's Day affirmed a lower court ruling in November of last year that two GlaxoSmithKline sales reps who claimed to be owed overtime pay are, in the opinion of the court, exempt from the relevant provisions of the Fair Labor Standards Act (FLSA).
However, those rulings contradict that of the US Court of Appeals last summer, which ruled that plaintiffs working for Novartis are entitled to overtime. The latter ruling seems to jive with a US Department of Labor brief that supports overtime pay for pharmacy reps and makes a case for it.
Under federal law, employers are required to compensate employees for all hours worked above 40 in any given week, with overtime pay calculated according to the given rate. The only time this law does not apply is when an FLSA exception applies.
Defendants in the pharma overtime lawsuit argue that the FLSA compensation exemption requirement does not apply to employees who work outside the company as sales reps and account executives in a capacity for obtaining orders and sales contracts.
Drug companies say that is indeed the case. The plaintiffs in this particular lawsuit, however, argued that a direct sale does not occur given that sales reps are calling on doctors. While the doctor prescribes the medications, the doctor isn't the one selling the medication. The latter are purchased by patients and hospitals, often from wholesalers.
However, the Ninth Circuit Court noted that the plaintiff's assertions failed to take into account the realities and the heavily regulated nature of the pharmaceutical industry. And that even though drugs are not actually sold to and therefore purchased by doctors, the "sale" exists as only it can exist in the drug industry.
Sales reps "are driven by their own ambition and rewarded with commissions when their efforts generate new sales," the Ninth Circuit Court ruled. "They receive their commissions in lieu of overtime and enjoy a largely autonomous worklife outside of an office. The pharmaceutical industry's representatives�detail men and women�share many more similarities than differences with their colleagues in other sales fields, and we hold that they are exempt from the FLSA overtime-pay requirement."
Legal watchers are looking for this issue to go all the way to the Supreme Court.
Former Basketball Coach Sues over California Labor Law Violations
In the lawsuit, Jerald Clinton Eaglesmith claimed that the school officials created a work environment that was hostile and tried to take away his equal protection rights according to the law.
According to the news provider, the majority of the alleged indiscretions came during Eaglesmith's tenure as Quincy High School's head basketball coach. The suit contends that Superintendent Glenn Harris and other school officials discriminated against him and actively worked to "eliminate" him from the basketball program.
The lawsuit, which was filed in California's Eastern District of the US District Court, also names an assistant superintendent, a principal and four other officials, the news source said.
The town of Quincy, California, which is where the high school is located, is the county seat of Plumas County.
California Labor Law: Work-related E-mails Trump Client-Attorney Privilege
The case of Holmes v. Petrovich demonstrates the importance of an employer's well-written communications and computer policy, and at the same time, how it would also benefit an employee to brush up on company policy before, say, sending e-mails to your attorney about perceived harassment and discrimination in the workplace.
In June 2004, Gina Holmes, the plaintiff, was hired as an executive assistant for Paul Petrovich and Petrovich Development Company, LLC, the defendant. About one month later, Holmes told Petrovich she was pregnant and requested a six-week maternity leave in December, which she later revised to a request for a four-month maternity leave starting in November. Petrovich wasn't thrilled with this news.
Petrovich and Holmes exchanged a number of e-mails, with Petrovich saying that he felt taken advantage of, but at the same time, he did not intend to violate any laws. (Discrimination due to pregnancy is in strict violation of the California labor law.)
Petrovich's e-mail to Holmes said that "I need some honesty. How pregnant were you when you interviewed with me and what happened to six weeks? . . . That is an extreme hardship on me, my business and everyone else in the company. You have rights for sure and I am not going to do anything to violate any laws, but I feel taken advantage of and deceived for sure."
In her e-mail to Petrovich, Holmes explained that she didn't tell him about her pregnancy sooner because she had previously had two miscarriages and wanted to make sure that this time the baby would be carried to term.
Holmes also e-mailed an attorney from her work e-mail account indicating that she felt she was working in a hostile environment and also e-mailed Petrovich to inform him that his feelings regarding her pregnancy left her with no alternative but to end her employment.
But Petrovich was concerned that Holmes would quit and had already forwarded her e-mail to HR??"before she gave notice.
Next up, Holmes filed a suit for sexual harassment, retaliation, wrongful termination, violation of privacy rights and intentional infliction of emotional distress.
The Trial
At trial, the jury was shown several e-mails between Holmes and her attorney. Holmes argued that these e-mails were attorney-client privileged. The trial court, however, ruled that Holmes's e-mails, sent on a company computer, were not protected by the attorney-client privilege because they were not private; furthermore, company policy was in black and white and stated that:
- Company technology resources should be used only for company business and employees are prohibited from sending or receiving personal e-mails;
- Employees have no right to privacy for personal information created on company computers;
- E-mail is not private communication;
- The Company may inspect all files or messages at any time; and
- The Company would periodically monitor technology resources for compliance with Company policy.
Holmes sent the e-mails to her attorney even though she had read and signed the company's express computer technology resource policy that governed her usage of the company computer and e-mail account, after she was hired. Specifically,
- She had been told of the company's policy that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail;
- She had been warned that the company would monitor its computers for compliance with this company policy and thus might "inspect all files and messages ... at any time;" and
- She had been explicitly advised that employees using company computers to create or maintain personal information or messages "have no right of privacy with respect to that information or message."
After the Sacramento Superior Court, Judge Chang, granted summary adjudication on the discrimination, retaliation, and wrongful termination causes of action, a jury found for the defendants on the two remaining causes of action, i.e., violation of the right to privacy, and intentional infliction of emotional distress. Holmes appealed, and the Court of Appeal affirmed.
On appeal, the court described the communications as "akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him."
Judge Throws Out California Labor Law Class Action
The lawsuit was launched on behalf of the California Correctional Peace Officers Association (CCPOA), which had taken issue with self-directed furloughs - arguing that they violated the Fair Labor Standards Act (FLSA).
In his California labor code ruling, it appeared that US District Court Judge Vaughn Walker did not agree.
The State of California, with Arnold Schwarzenegger in office, resorted to furloughs in an effort to improve the state's coffers. In the midst of a financial crisis, the Office of the Governor directed that employees of the state in every sector would be required to take a certain number of unpaid days off in any given year, which would translate to savings for the State or California.
Various groups took issue with the directive, citing alleged violations of California labor employment law, federal laws and FLSA. Specifically, CCPOA took the position that cutting employee pay but deferring the actual furlough time violated the law because employees aren't paid in full for hours worked within a given pay cycle.
The plaintiffs also held that time worked on an unpaid furlough day should be calculated in figuring overtime and that the state hadn't kept adequate payroll records.
The judge, in his ruling just one day after hearing arguments, did not agree.
"The furlough program, while perhaps convoluted in execution, ensures that plaintiffs are compensated for all hours worked during the pay period," Walker wrote. "Because plaintiffs are compensated for all hours worked, and because that compensation exceeds federal minimum standards, plaintiffs claim of violation of FSLA fails."
As for violations with regard to record keeping under California sate labor laws, the judge noted that the law allows for only the secretary of labor to sue for alleged violations of record keeping.
The Bee noted that the California employment labor law case applied only to the members of Bargaining Unit Six of the CCPOA.
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