The initial lawsuit - which was dismissed in 2014 after a Supreme Court decision in a different case - was refiled. It alleges that because the security check is for the sole benefit of Apple and is done in all Apple retail stores across the US, that employees should be paid. Typically, employees undergo security screening after they have clocked out for their meal break or at the end of the day, meaning any time spent waiting for a manager to be free to do a check is unpaid time.
According to the initial lawsuit, that time can add up. For an employee leaving twice during a shift, the wait can mean anywhere from 10 to 15 unpaid minutes. For full-time employees, that adds up to uncompensated overtime.
The lawsuit calls Apple’s conduct regarding the unpaid security checks “illegal and improper” and says employees throughout the US are owed millions of dollars in wages and overtime. Amanda Frlekin, a named plaintiff in the original lawsuit, recorded between 10 and 15 uncompensated minutes during every shift, adding up to between 50 and 90 minutes over the course of the week.
“This daily 10-15 minute uncompensated waiting time during security checks was done in order to undergo searches for possible contraband and/or pilferage of inventory,” the lawsuit alleges. “Because such screening is designed to prevent and deter employee theft, a concern that stems from the nature of the employee’s work (specifically, their access to high value electronics and merchandise), the security checks and consequential wait time are necessary to the employee’s primary work as retail Specialists and done solely for Apple’s benefit.”
Workers are allegedly prohibited from leaving the store prior to a screening, and employees who refuse the security checks can face disciplinary action, including termination.
Apple has argued that the time spent undergoing bag checks is negligible and therefore should not be compensated. It also argues that not all managers conduct security screenings.
If an employer denies an employee accrued paid sick leave and/or retaliates in any way when an employee tries to use paid sick leave, that employee can now file a labor law complaint with the California Labor Commissioner’s Office. After a complaint is filed, the Commissioner’s Office has the authority to investigate the complaint and determine if damages and penalties will be awarded.
Many of those 6.5 million workers (about three-quarters of the state’s low-wage workers) who will benefit from this new law for the first time are parents who have to take care of their children. Too often children would show up at school sick because the (often single) parent feared getting fired if they didn’t show up at work. Having to send a sick child to school or leaving a sick child at home alone is heart-wrenching. Hillary Clinton said that no one should have “to choose between keeping a paycheck and caring for a new baby or a sick relative.”
And many employees who were never given paid sick leave, or any paid time off, are workers earning minimum wage. People in restaurants and retail who are barely scraping by and go to work sick (yes, the person who cooked your food could have the flu). Assembly member Lorena Gonzalez, D-San Diego, said that “We just want employers to know it’s not an option, and employees can’t be penalized for using their paid sick days. They can’t be fired or have their hours cut. It’s important for them to know they have the right to earn these paid sick days.”
The new law is complicated, and another reason why paid sick leave complaints may spur lawsuits. But every employee should know their rights and exactly what is covered. In a nutshell, for each 30 hours that somebody works, they get one hour of sick leave. The AB 1522 says that businesses will be required to show how many hours of paid sick leave workers have earned on their pay stubs. Employers can either choose to have workers accrue one hour of paid sick leave for every 30 hours worked, or grant employees three days of paid sick leave upfront, to be used within a one-year period.
Every business is required to provide this benefit, even if it only has one employee. Whenever possible, employees must provide “reasonable advance notification” orally or in writing of their desire to use the leave when the need for sick leave is foreseeable. Of course you can’t always know beforehand when you will be sick but you can also use sick leave for the following:
• the diagnosis, care or treatment of an existing health condition
• the preventive care of an employee
• an employee’s personal family member (including spouses, registered domestic partners, children, parents, grandparents, and siblings)
• employees who are victims of domestic violence, sexual assault, or stalking
If they haven’t done so already, employers might want to familiarize themselves with the new paid sick leave law and revise their policies and procedures. And employees shouldn’t rely on their employers to explain their benefits.
In sum, The Healthy Workplaces, Healthy Families Act of 2014 (AB 1522) was signed into law by Governor Jerry Brown last year for a planned two-stage implementation at the beginning of 2015. Various changes to record keeping and the posting of notices were brought in at the first of the year, followed by the implementation of changes to accruals and reporting on July 1.
The aforementioned changes to the California labor code were part of the original adoption of AB 1522. However, employers found the rollout somewhat overwhelming, requiring an update to AB 1522 in an effort to straighten out some of the confusion.
That update came in the form of AB 304, a bill that Governor Brown swiftly signed into law on July 14 and is effective immediately. The amendments provide some clarification with regard to compliance over payments, provisions for time off and so on. The clarifications are important not only for the employer - in order to properly comply - but also the employee, for whom a basic understanding of the new provisions is important in order to identify whether or not an employer is properly conforming to the new guidelines.
One of the clarifications with regard to California and labor law stemming from the quick passage of AB 304 has to do with record keeping: while an employer can know the reason(s) and purposes for which an employee uses paid sick time, there is no requirement in record-keeping protocols for maintaining documentation to that end.
Were an employer to maintain documentation with regard to the purposes for paid sick leave, or were an employee to find himself getting stiffed on sick pay and sick leave, he needs to be able to identify incidents of noncompliance in order to initiate and pursue a California labor lawsuit, as required.
AB 304 clarifies protocols for calculating paid sick leave, and the employer now has two options for doing so: 1) a calculation formula akin to the regular rate of pay for overtime calculation for the workweek in which paid sick time is used, and 2) the original calculation protocol dividing the employee’s total wages, not including overtime premium pay, by the employee’s total hours worked in the full pay periods of the prior 90 days of employment.
The July 14th amendment also provides for alternate accrual methods beyond the formula of one hour for each 30 hours worked, provided the accrual is on a regular basis and the employee will have 24 hours of paid sick leave available by the 120th calendar day of employment.
There is also clarification, for the purposes of California labor employment law, with regard to the right an employer has in limiting an employee’s use of paid sick days to 24 hours or 3 days either: (1) in each year of employment (by anniversary year, for example); or (2) in each calendar year; or (3) in any specified 12-month period.
Among other provisions in AB 304 is clarification over the requirement that an employee, to be eligible for paid sick leave, must be in a position to have worked for the same employer for 30 days, as opposed to simply working for any employer in the state of California.
There is a somewhat complicated grandfather clause for those employees who were provided paid sick leave or paid time off prior to the implementation of AB 1522 at the first of the year, and for whom a different method for accruing sick time may have been used. This clause allows for a more gradual accrual, provided the employee accrues eight hours of paid sick leave in the first three months of employment and was eligible to earn 24 hours of sick leave or paid time off within nine months of employment.
At the end of the day, California state labor laws are intended to level the playing field and provide fairness for the employee. A mutual understanding of California employee labor law is an important prerequisite for the employer to properly implement new laws, and for the employee to understand when those statutes are being accidentally or purposefully circumvented…
For some time now, California labor law has protected transgendered individuals from discrimination and harassment. However, a decision by the Superior Court of California, County of Sacramento last spring held that denying transgender employees the right to use gender-identity appropriate facilities remains a violation of the state’s anti-discrimination laws, and other statutes entrenched in the California Labor Code.
That decision, released in March of 2014, held that transgendered employees in the state of California have the right to use gender-identity appropriate change room and washroom facilities in the state of California. Various other states have enacted similar updates to their laws.
Now, the Feds have finally entered the pool with an update to federal codes that mirror California and labor law, as well as similar laws in other jurisdictions related to transgendered individuals.
To that end, the Occupational Safety and Health Administration (OSHA) on June 1 published A Guide to Restroom Access for Transgender Workers.
“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, in a released statement. “OSHA’s goal is to assure that employers provide a safe and healthful working environment for all employees.”
The guide itself is detailed, but in sum, the rule is stated simply thus: if a female has transgendered, either emotionally or physically (or both) to male and therefore identifies as male, then that individual has the right and freedom to use the men’s washroom.
The same holds true for Bruce Jenner, who now identifies as Caitlin. It wasn’t that long ago that Jenner was being interviewed on national television about his story and his ongoing transition to female, the gender to which Jenner now identifies. This week, the release of the Caitlin Jenner photo shoot for the cover of Vanity Fair is a stark representation of what Jenner was revealing just a few weeks ago.
Therefore, applying the Bruce Jenner/Caitlin Jenner example to the rule of law, Bruce Jenner identifies as female now (as Caitlin Jenner) and thus, has the right to use the women’s washroom.
The OSHA guide, and the corresponding law, is founded upon the core belief that all employees in the workplace should be permitted, without retaliation, use of the facility that best matches his or her gender identification. At the end of the day, however, the OSHA guide notes that the employee should determine “the most appropriate and safest option for him - or herself.”
OSHA also identifies best polices that provide additional options that transgendered employees may choose, but are at the same time not a requirement. Such options, as available, could include: “Single-occupancy gender-neutral (unisex) facilities, and: Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
“Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities,” states the guideline. “In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.”
The guidelines also speak to the existence of local and state laws and statutes, such as California labor employment law, about which all employees should be conversant.
To summarize, transgendering has long passed the signpost of sensationalism. Rather, gender identification in any form has progressed from tolerance to widespread acceptance; and yet another indication of this is the release, this summer, of Becoming Us, an unscripted “docuseries” on ABC Family, documenting the life of 17-year-old Ben Lehwald of Evanston, Illinois. In the series, which is produced by Ryan Seacrest Productions, Ben’s father Charlie transitions to Carly. The narrative is told from Ben’s perspective as he watches his dad go through his divorce from Ben’s mom Suzy, before undergoing gender reassignment surgery.
In the grand scheme of things, washroom assignment (or reassignment) should be the least of a transgendered individual’s worries. Nonetheless, it is an issue that many states have been grappling with for some time - including California and labor law observed by the state. Now, the Department of Labor through the OSHA guideline will ensure that the rights of everyone are quite properly observed and respected behind the washroom stall.
Caitlin Jenner will use the women’s washroom. It’s only appropriate. And it’s also the law.
The hourly workers were seeking class certification of their lawsuit against former and current employers. The plaintiffs used to work at the Taylor Farms food production plants. Defendants also include the “temp agencies” Abel Mendoza and Sling Shot - Taylor Farms hires them to staff much of their operations.
District Judge Kimberly J. Mueller granted in part the certification motion in a February 9, 2015 order regarding meal claims, but denied in part rest break claims. Plaintiffs Pena, Hernandez and Morris, former Taylor Farms employees, are approved as subclass representatives, according to court documents. The case is No. 2:13-CV-01282-KJM-AC, (E.D. Cal.).
The former employees have three main complaints:
1. They weren’t paid for “donning and doffing,” i.e., time spent putting on and taking off mandatory personal protective equipment
2. They were not allowed rest breaks and meal breaks as required by California labor law
3. They did not receive paychecks in the form and at the time California law requires
Donning and doffing
The donning and doffing complaint is directly related to rest and meal break complaints.
“The plaintiffs allege in their first claim that the defendants owe them wages for the time they spent on these on-duty meal breaks because they were required to put on, take off and clean protective equipment during this time.
In their second claim, the plaintiffs claim the defendants did not count time the putative class members spent putting on, taking off and cleaning protective equipment when calculating overtime pay. And in their third claim, the plaintiffs point to a section of the wage order requiring an employer to pay one hour of pay at an employee's regular rate for each workday on which a duty-free meal period was not provided.”
Why was the donning and doffing complaint denied? It would seem that not everyone dons and doffs equally. And not all judges are equal (see National Beef donning and doffing lawsuit below).
Apparently about half of the named plaintiffs and putative class members in the Taylor Farms depositions said they were on-the-clock while donning and doffing. However, not all employees are required to wear the same protective equipment, so donning and doffing doesn’t take the same amount of time for everyone. And time to put on and take off gear varies, depending upon locations.
Ironically, Taylor Farms requires workers to wear shirts that say “I Love Taylor Farms,” according to journalist Brian Tierney (counterpunch; January 9, 2014). They also wear snow pants overalls to protect them from cold temperatures in the plant.
Tierney said that Taylor Farms consistently violated California labor laws and treats its workers unfairly, to put it mildly. He describes employees on the tomato line working for $8 per hour up to 17 hours a day and five days a week or more during the busy season. In the past five years, Taylor Farms has accumulated over $80,000 in OSHA penalties including the ongoing class-action case for requiring employees to work off-the-clock and without pay. Tierney said that workers told him “they are denied workers’ compensation when they are injured on the job. And workers also say that complaining about safety issues or not being paid for overtime often results in being fired.”
Experienced labor attorneys have reached settlements with many donning and doffing lawsuits such as National Beef, which is similar to that of Taylor Farms. Employees claimed they were not paid for removing protective gear, waiting to clean equipment or cleaning the equipment. National Beef will reportedly pay around $350,000 to resolve claims.
The lawsuit noted that some employees are paid “donning and doffing” pay of up to nine minutes...
While Carter Brothers LLC is based in Atlanta, the 15 current and former workers behind the lawsuit are from Sacramento.
According to the lawsuit, filed February 4 in US District Court at Sacramento, the workers were trained by Carter Brothers to install residential security equipment in the state under contract with AT&T Digital Life. The Sacramento Business Journal (2/11/14) reports that when the joint venture between Carter Brothers LLC and AT&T failed, there were many layoffs. Those laid off, the lawsuit contends, did not receive unemployment benefits, disability pay or workers’ compensation as required under California labor law due to the fact they were classified as independent contractors.
However, according to the lawsuit, the workers were dispatched to job sites in AT&T trucks and were made to wear AT&T uniforms. The workers in their unpaid overtime lawsuit allege they toiled 12-14 hours each day without overtime, provision to offset travel expenses or extra training as needed.
AT&T is named as a co-defendant, amongst others, in the overtime pay lawsuit. The plaintiffs are hoping for class-action status. The legal firm involved in the action surmises that the misclassification could affect upwards of 70 to 80 workers in the state, not to mention workers based in Chicago and Dallas. According to the Sacramento Business Journal, millions of dollars’ worth of lost wages, various benefits and overtime pay that went unpaid according to provisions in overtime pay laws are at stake.
Carter Brothers LLC was founded in 2000 by NFL Hall of Famer and ESPN commentator Cris Carter and his brother John. Cris is currently the Chairman.
The case is Ramses Gutierrez et al v. Carter Brothers Security Services LLC et al, Case No. 2:14-at-00150
Meanwhile a federal class-action lawsuit was filed earlier this month against Gerawan Farming. Plaintiffs allege the company failed to pay minimum wage, overtime pay according to California overtime law and state-guaranteed rest breaks.
The plaintiffs named in the California overtime lawsuit are Rafael Marquez Amaro and Jesus Alarcon Urzua. According to the Fresno Bee (2/4/14), the lawsuit was filed on behalf of thousands of field workers who toiled for Gerawan and were paid by the piece over the previous four years. Plaintiffs claim the actual take-home pay was below the minimum wage guaranteed by the state of California.
The case is Amaro & Urzua, et al v. Gerawan Farming Inc. et al, Case No. 1:2014cv00147, February 3, 2014 at California Eastern District Court.
Issues of harassment in the US agriculture industry were reported on by FRONTLINE, Univision, the Investigative Reporting Program at the UC Berkeley Graduate School of Journalism and the Center for Investigative Reporting. The report, titled Rape in the Fields, aired on PBS on June 25, 2013. The report cites national statistics, but California reportedly has the highest number of agricultural workers in the US and several incidents of alleged harassment in California were included in the documentary.
The report cites a 2010 UC Santa Cruz study that involved 150 female farmworkers. Of those, almost 40 percent experienced sexual harassment, which ranged from verbal harassment to rape, and 24 percent said they were sexually coerced by a supervisor. The study, titled “Examining the Sexual Harassment Experiences of Mexican Immigrant Farmworking Women” (9/22/10), notes that of approximately one million farmworkers in California, 28 percent are women. It further reports that between 35 and 50 percent of women are sexually harassed at some point in their career.
But because they need the work, because many are illegal immigrants or because they are afraid of retaliation, many instances of harassment go unreported. Many may also not realize that harassment on the job is illegal.
Harassment on the job is illegal, as is retaliation for filing a complaint about harassment. In the first sexual harassment lawsuit filed by the US Equal Employment Opportunity Commission against a grower to go to court (the case of Olivia Tamayo, who alleged she was raped three times by a supervisor) in 2004, a jury found Harris Farms - Tamayo’s employer - liable for its supervisor’s sexual harassment and retaliation, and awarded Tamayo approximately $800,000 (as reported in Rape in the Fields).
According to the US Equal Employment Opportunity Commission, it is illegal to harass a person because of their sex. This includes sexual harassment, unwelcome sexual advances, requests for sexual favors and other verbal or physical harassment. If an employee complains about harassment, it is illegal for the employer to retaliate against the employee. Sexual harassment violates Title VII of the Civil Rights Act of 1964, which applies to employers with 15 or more employees. Violations of sexual harassment laws can result in a lawsuit filed against the individual accused of committing the harassment and his or her employers.
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.
employee stock plans, the truth is that ERISA covers much more than retirement plans. Included in ERISA benefits are insurance provided through an employer, meaning that any claims about employer-provided insurance are covered by ERISA.
Covered by the Employee Retirement Income Security Act of 1974 (ERISA) are retirement, health, life insurance, and disability insurance plans. Covering only private employers, ERISA does not require employers to provide health insurance or other benefits plans; it simply sets out rules for when employers choose to offer such benefits. If employers choose not to offer benefits as covered by ERISA, they are not governed by ERISA rules. Furthermore, ERISA does not cover insurance policies that are purchased privately. It only covers those provided by an employer.
Under ERISA, those in charge of health plans and other benefits must provide information about the plan's funding and features, must abide by their fiduciary responsibilities and must provide an appeals process for people who have a grievance with their plans. Finally, ERISA gives participants the right to sue plan fiduciaries in cases where there is a breach of fiduciary duty.
Before a lawsuit can be filed, however, under ERISA the claimant must exhaust administrative remedies before filing a lawsuit. This means that if the insurance company has an internal appeals process, the claimant must file an appeal before filing a lawsuit, if the insurance policy in question is provided by the employer (private insurance, because it is not covered by ERISA, does not have such a requirement and a lawsuit can be filed once the first denial is received.)
Many insurance companies have rules for filing appeals, including a set time in which to file. Certain medical records and an appeal letter may also be required. If that appeal is then denied, a lawsuit can be filed to enforce the claimant's rights. A plan beneficiary or participant can file the lawsuit, depending on the circumstances, and the lawsuit is typically filed against the plan fiduciary or administrator.
It is important to note that under ERISA a claimant will not be awarded punitive damages; all that can be claimed are costs associated with the insurance policy.
The suspected violations to California labor code allegedly committed by Zavala Farms include failure to provide wages approaching minimum wage levels and failure to pay overtime.
Zavala Farms is a farm labor contractor based on Greenfield. The California Department of Industrial Relations' (DIR) Division of Labor Standards Enforcement launched an investigation based on a complaint to the office of the Labor Commissioner.
The resulting investigation reportedly uncovered numerous violations to California and labor law spanning a period of three years from April 1, 2009 through April 1, 2012.
The allegations are that Zavala Farms failed to pay proper wages, or overtime when workers exceeded a standard 40-hour workweek or 8-hour day, in direct violation of California labor employment law.
State employment guidelines serve as a template of minimum standards for employers to maintain with their respective workforce. Of course, employers have the right to pay their workers at a higher rate than minimum wage??"a rate that would also serve to increase overtime premiums. Nonetheless, workers in California have a right to a basic basket of minimums pertaining to rates of pay, overtime and working conditions.
When such conditions are not met, the activity serves as a contravention to labor code. Employers can be fined, charged or sued. In this case, California State Labor Commissioner Julie A. Su chose to launch a California labor lawsuit against the alleged perpetrator.
"These workers picked lettuce and worked in grape fields over ten hours a day without receiving overtime pay," said Labor Commissioner Su. "This lawsuit is but one example of our commitment to conducting in-depth, meaningful inspections to get the wages earned into workers' pockets. When workers come forward, as these farm workers have done, to tell us about illegal working conditions, we will take action to protect them."
The lawsuit, noted Su, also serves to protect those employers who 'do it by the book,' only to be penalized by competitors who can undercut bids to get work, through shortchanging their workers to keep costs down. The practice only hurts law-abiding employers who respect and adhere to California prevailing wage law.
Christine Baker, Director of DIR, noted in the press release that the lawsuit "demonstrates the Labor Commissioner's commitment to ensuring that all workers in this state are protected by the wage floor. Whether it is in agriculture or any other industry where wage violations occur, we will enforce California employee labor law."
The California labor lawsuit seeks $1.6 million in unpaid wages overtime and penalties for the affected workers. The action was filed in Monterey County Superior Court.
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