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California FMLA Lawsuit Stymied by Tribal Immunity
However, there are various twists in this case given that the lawsuit was filed against the Morongo Band of Mission Indians - the operator of the slot facility - resulting in a ruling that sovereign immunity protects the tribe and its casino from FMLA claims.
The plaintiff in the California FMLA case is Crystal Muller, a former slot machine attendant who filed her complaint last November. According to court documents, Muller alleged she had fallen ill in 2010, requiring sick leave under FMLA. The leave had been approved. However, in mid-2013, Muller was terminated from her position. According to the California FMLA lawsuit, a manager at the casino had reported that Muller’s health issues were related to drug use, and that she was not capable of performing her job.
Muller countered that the drugs she was taking were prescribed for her disability - which wasn’t identified - and that the drugs did not impede her work performance in any way.
According to court documents, Muller lobbied for an appearance before the tribal council to plead her case. In her view, the real reason for her termination had little to do with drug use or job performance and everything to do with approved FMLA leave, and she sought arbitration for her case before her approved FMLA leave was set to expire. However, the plaintiff noted that she did not receive a response from the tribal council until a year later, only to be denied.
In her lawsuit, Muller was seeking either a court ruling forcing arbitration with the tribe through a court order or a grant of equitable relief. The defendants, in their response, moved to have the case dismissed - a move opposed by the plaintiff as being premature, given that in her view she had not exhausted all available remedies at the tribal level.
However, in her ruling, US District Judge Virginia A. Phillips noted that sovereign immunity protected the tribe and the casino it operated from claims under FMLA. Judge Phillips said the tribe did not consent to face FMLA claims by entering a gaming compact with the state of California that obligates the tribe to meet Fair Labor Standards Act requirements and waives sovereign immunity to casino-related personal injury and property damage claims.
“The court will not infer a waiver of immunity as to certain types of claims based on a separate, unrelated waiver of different categories of claims,” she wrote.
“Defendants correctly point out that no tribal remedies are available,” she wrote. “Exhaustion is not required, in a case such as this, where it would be futile.”
The judge also dismissed Muller’s claims against two individual tribal officers, finding their official actions are protected by the tribe’s immunity.
The case is Crystal A. Muller v. Morongo Casino Resort and Spa et al., Case No. 5:14-cv-02308, in the US District Court for the Central District of California.
Class-Action Status Given to Apple Wage and Hour Lawsuit
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.
Will Paid Sick Leave Spur California Labor Lawsuits?
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.
California Labor Paid Sick Leave Laws Clarified, Still Complicated
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…
Respecting Caitlin Jenner and Her Community Under the Law
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.
Builder of New NASA Spacecraft Hit with California Labor Lawsuit
In fact, according to the Los Angeles Times (8/12/14), there are two lawsuits against Space Exploration Technologies Corp., popularly known as SpaceX. The crux of the matter involves alleged affronts to the California labor code as it relates to missed meal breaks and rest periods, and unpaid wages.
The first California labor lawsuit, filed by two former employees, allege that SpaceX improperly laid off hundreds of employees in late July of this year without benefit of fair notice or compensation.
Then, two days later in Los Angeles County Superior Court, a former tool maker with the upstart manufacturer filed a lawsuit claiming that SpaceX violated various tenets under California labor employment law.
Among them: imposing schedules and workloads that ate into designated meal breaks and rest periods as required under California and labor law; rounding time sheets to the nearest 15-minute increment, potentially cheating an employee out of cumulative wages and potential overtime pay; and that employees were not reimbursed for tools purchased on their own, in order to accomplish tasks required by the company, when SpaceX allegedly failed to provide the necessary tools to complete the work.
Plaintiff Joseph A. Smith asserts issues as defined in the lawsuit date back to August 2010. The California labor lawsuit seeks various damages and penalties, including back pay with interest, and also seeks class-action status on behalf of other hourly employees who may have found themselves in a similar situation.
SpaceX is one of two companies that competed for the hotly contested contracts issued by NASA for the successor to the now-retired Shuttle. The space agency is currently relying on Russian Soyuz craft to carry supplies and relief astronauts to and from the space station. The other successful bidder is Boeing Corp. NASA is hoping to have spacecraft in production and flying by 2017.
This, in spite of a legal challenge to the contract issuance by one of the failed bidders. Florida Today (10/10/14) reports that Sierra Nevada Corp. launched its formal protest 10 days after the NASA press conference to announce the successful bidders, noting that its bid and proposal to build the Dream Chaser mini-shuttle was nearly $1 billion less than the contract submitted by Boeing. Sierra Nevada Corp. has filed a formal protest with the US Government Accountability Office and expects a ruling on or before January 5 of next year.
NASA, after briefly halting work on the projects, quickly resumed the existing contracts as submitted and is continuing work in order to meet a tight timetable in 2017, less than three years away.
It is unclear what role the two recent legal challenges to SpaceX under California and labor law will have on the defendant, NASA or the program going forward. The case is Joseph A. Smith v. Space Exploration Technologies Corp, case number BC554258, in the Superior Court of the State of California, County of Los Angeles.
California Labor Lawsuit Class Members Want Dispute Back in State Court
According to court documents, a La Boulange bakery factory and another facility lay at the center of a dispute that also involves temporary workers. According to attorneys representing the class, 99.7 percent of the potential class members live in the state, regardless of whether or not they are temporary or employees that have more permanency.
The lead plaintiffs in the dispute are Norma Serrano and Maria Grande (Serrano et al v. Bay Bread LLC et al, case number 3:14-cv-01087, in the US District Court for the Northern District of California). In their complaint the two California women claim that they worked at a Bay Bread factory in South San Francisco, as well as a bakery in Newark owned by co-defendant Fullbloom Baking. At both locations, according to the plaintiffs, they were denied complete and full wages and adequate rest periods according to California and labor law that would apply to the San Francisco location, at least.
Another co-defendant is Aerotek Inc., a temporary staffing agency. After the California labor employment lawsuit was filed in San Mateo County Superior Court in January, the defendants petitioned to have the lawsuit moved to federal court two months later. They argued that the dispute could exceed $7 million and involve nearly 1,200 class members. Co-defendant Aerotek, the temporary staffing agency, is based in Maryland.
That doesn’t hold water with the plaintiffs, who want the lawsuit moved back to state court.
At issue are the temporary workers who the defendants claim are transient by nature. However, with the vast majority of class members having addresses in California and Bay Bread also headquartered in the state, it would be reasonable to expect that the state of California has jurisdiction.
US District Court Judge Thelton Henderson, the presiding justice in the California and labor law dispute, appears to be aligning himself with the plaintiffs and has challenged the various co-defendants to provide further grounds to support leaving the case in federal court.
“Given that 99.7 percent of [the class members] live here, it’s reasonable to conclude that two-thirds are California citizens,” Judge Henderson is quoted as saying.
According to court documents Bay Bread does business as La Boulange. The latter is a chain of cafes purchased by Starbucks two years ago.
Proposed California Labor Lawsuit Settlement Worth $4.75 Million
The California labor lawsuit settlement is worth $4.75 million, with the California class reported as reaping the greatest benefit from the settlement. The lawsuit was brought in 2013 and filed in California Federal Court. Universal Alloy Corp. (UAC) maintains headquarters in Canton, Georgia, but also has a large facility at Anaheim.
According to court documents, lead plaintiff Fabio Gonzalez toiled at UAC’s Anaheim plant for about six years, with one of two additional plaintiffs having worked at the Anaheim facility for longer than seven years. A total of 770 class members will share in the settlement, with participants split almost equally with 390 in the California class and the remaining 380 in a class identified with the Fair Labor Standards Act (FLSA).
The California class, however, stands to reap the greatest rewards under California labor employment law, with each California class member expected to receive $7,476 in compensation, v. $840 on average for the FLSA class.
The defendant said that it agreed to settle, in spite of admitting to no wrongdoing and denying the allegations, partly due to the disruption the lawsuit was causing to its business and operations.
In their California labor code lawsuit, plaintiffs alleged that UAC paid factory employees only according to their scheduled shift hours, rather than hours actually worked. There were also allegations that UAC failed to incorporate bonuses into regular rates of pay, which would have resulted in what was described as a systematic miscalculation of overtime, an alleged violation to statutes under California and labor law.
The California labor lawsuit also accused the company of failure to maintain adequate wage statements and records, and failure to provide the required meal and rest breaks as mandated under FLSA guidelines and California labor code.
Plaintiffs in the action seek certification for all current and former nonexempt employees who toiled at the California plant from May 10, 2009 to the present day. They also request certification for a separate, nationwide opt-in class of UAC workers for the same time period, in connection with the company's alleged FLSA violations.
“This settlement provides a substantial recovery, including 100 percent of the alleged underpaid overtime and minimum wages based on defendant’s allegedly improper [conduct],” the plaintiffs state in their proposed settlement motion pertaining to California employee labor law.
US District Judge James V. Selna will undertake judicial review and approval of the proposed settlement. Plaintiffs have requested a hearing for June 16.
The California labor lawsuit is Fabio Gonzalez v. Universal Alloy Corp. et al., Case No. 8:13-cv-00807, in the US District Court for the Ce
Furniture Distributor Compensates Workers for California Labor Law Violations
According to a PR Newswire release (10/28/13), Labor Commissioner Julie A. Su launched the investigation following a complaint by an employee of Coppel Corporation, a distributor and warehouse in the state. The employee, according to the report, contacted the Division of Labor Standards Enforcement (DLSE) within the Department of Industrial Relations (DIR) with regard to potential violations of California labor employment law.
Following the filing of a formal California labor code complaint with the DLSE’s Bureau of Field Enforcement (BOFE), it was determined by investigators following a review of payroll documents that employees had worked about two or three hours of overtime each week but were paid at their regular hourly rate - a violation of California and labor law.
Labor Commissioner Su was quick to point out that Coppel Corporation co-operated fully once the allegations came to light, undertaking a self-audit that eventually revealed the overtime wages discrepancy.
California prevailing wage law mirrors federal statues under the Fair Labor Standards Act (FLSA) that requires a rate of pay calculated at one and one-half times the regular hourly rate of pay for any hours worked beyond a standard 40-hour week, or any hours worked beyond the 5th consecutive day.
As a result of the California employee labor law investigation, Coppel will be paying $88,109 to 60 current employees, in addition to $33,613 destined for 83 former employees of the firm.
“This is an example of how effective labor law enforcement benefits everyone,” said Labor Commissioner Su, in a statement. “We encourage employers to cooperate during investigations, come into compliance, and make workers whole.”
A favorite ploy amongst employers attempting to cut expenses and improve their bottom line is to force employees to perform job-related tasks off the clock or incorrectly classify employees as exempt from qualifying for overtime - all tactics that flaunt California state labor laws.
This doesn’t appear to be the case here.
“We appreciate the employer for responsibly working with our investigators to bring a speedy resolution for these workers,” said Christine Baker, Director of the Department of Industrial Relations.
Under the leadership of Su, the Office of the California Labor Commissioner has been aggressively pursuing alleged violations to California labor law, with numerous investigations culminating in a California labor lawsuit and ultimate compensation for workers.
In the end, however, it starts with an employee or group of employees keeping aware of the goings-on at their place of employ, and having the courage to speak up or lay a formal complaint in the face of an alleged violation to the California labor code.
The warehouse operated by Coppel Corporation is located in Calexico.
Will Latest California Labor Law Citation Finally End Sweatshops?
O & K Apparel Inc. has been ordered by California Labor Commissioner Julie A. Su to pay its 110 employees $113,000 in California overtime wages plus penalties of $61,450 for failing to pay proper overtime, and $307,250 for issuing improper itemized/deduction statements.
In a press release (April 11), Christine Baker, director of the Department of Industrial Relations (DIR), which is a division of the Labor Commissioner’s office, said that employers must pay workers the wages they’ve earned. “And the Labor Commissioner’s office will protect [the employees’] rights, as well as the rights of honest businesses and taxpayers.”
O & K Apparel Inc., which is based in Los Angeles, makes women’s garments and has been paying its employees by the piece, or “piecework.” The California labor code states that garment contractors are required to provide accurate itemized statements to employees showing total hours worked by the employees, and if paid by the piece, they must show the number of pieces produced for specific manufacturers and the rate of pay for each piece in addition to the total hours worked.
In a statement, Labor Commissioner Su said there is no place for sweatshop conditions in our 21st century economy. “Piece rate payment cannot be used as an end-run around the basic requirement that all workers in California receive a just day’s pay for a hard day’s work, including overtime pay for overtime hours worked. In addition, California law requires itemized wage statements so employees know how much they worked and what they earned. In this case, the pay stubs did not include any of that information, which makes it hard for workers to know when their wages are being stolen right out from under them.”
Will some employers never learn? Back in March 2008, seven Hispanic workers filed a federal overtime lawsuit against City Wide Insulation of Madison, claiming that the company violated the federal Fair Labor Standards Act. City Wide thought it could get away with not paying its employees overtime because, they argued, their workers were compensated on a piecework basis. But the judge didn’t see it that way and the workers received about $19,000 each.
More recently, Walmart had its knuckles wrapped regarding piecework. This pay scheme left over from the dark ages intended to make employees work faster and faster within an 8-hour day. But they often work through lunch and don’t take breaks, because if the containers aren’t unloaded in time, they don’t get paid. Walmart lawsuits filed by piecework employees are pending…
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