Professional Service News
Farm Owners Required to Comply With Overtime Law
Sacramento, CA: When it comes to California compliance overtime laws might be among the laws that are most widely violated. Employers are accused of misclassifying employees as exempt from California overtime, or just full-out failing to pay non-exempt workers for overtime hours. In some cases, workers aren't even eligible for overtime pay, or have different standards for paying overtime. One group of workers - farmworkers - could soon see that change.
Wage and Hour Lawsuits Continue to Percolate in California
San Mateo, CA: Yet another California based health care facility has been hit with a California wage and hour lawsuit, alleging that hourly employees have not been paid their correct overtime wages, nor have they been provided with rest breaks and meal periods in accordance with California labor law.
The defendant in the case is Sutter West Bay Hospitals. The proposed class action accuses the defendant, on behalf of all qualifying class members, of denying their hourly employees access to meal breaks and rest periods. California law holds that rest periods are taken as required, and that an un-interrupted meal period of not less than thirty minutes be provided prior to the commencement of the fifth hour of work.
Not only is this requirement entrenched within California employment law, the fact remains that were a meal period not duly provided, it means the employee has worked through the meal period and thus should be paid overtime for the 30 minutes of additional work performed.
It is also alleged that hourly employees were provided with non-discretionary bonus pay based upon their job performance. And yet, it is alleged that this bonus pay was not included as part of the calculation of a non-exempt employee’s hourly rate for the purposes of determining the proper overtime rate.
Thus, it is alleged that non-exempt employees of Sutter West Bay Hospitals were not paid correct amounts of overtime, as required under California labor laws.
The wage and hour class action lawsuit is Case No. 2016-cv-538977 in San Mateo County Superior Court for the State of California.
Meanwhile, it has been reported that Ecolab Inc. remains embroiled in four California wage and hour lawsuits that remain pending: this, according to the defendant’s 10-Q filing with the US Securities and Exchange Commission (SEC) for the first quarter ending March 31st of this year. The report, filed in early May, noted that a fifth lawsuit (Cancilla v. Ecolab, Case No. CV 12-03001 US District Court, Northern District of California), has been settled.
The 10-Q filing noted that three of the lawsuits are pending as class actions and claim violations to the Fair Labor Standards Act (FLSA) and / or similar violations to state labor laws.
Of the four remaining wage and hour lawsuits still pending, two are based in California: Ross (formerly Icard) v. Ecolab, Case No. C 13-05097 PJH, and Martino v. Ecolab, Case No. 5:14-cv-04358-PSG, both pending in US District Court for the Northern District of California.
Pulitzer Prize Winner Files Discrimination Lawsuit
Los Angeles, CA: The Los Angeles Times is used to reporting on lawsuits, but now it faces a California discrimination lawsuit of its own, filed by a Pulitzer Prize-winning journalist. Jeffrey Gottlieb filed the lawsuit, alleging age discrimination, harassment, and retaliation.
Gottlieb was hired in March 1997 as an assistant city editor and through his years at Los Angeles Times worked as a staff writer, assistant city editor, and senior writer. Court documents note that Gottlieb and his writing partner - Ruben Vives - co-wrote many stories, including work on corruption in the City of Bell that resulted in them winning Pulitzer Prize for Public Service, a George Polk Award, and a variety of other awards.
Although he won the George Polk award, Gottlieb argues his bosses didn't tell him or Vives about the award, with them finding out by accident, and despite receiving money for other awards, that award money was not fully distributed even two years after it was won. Gottlieb complained to the publisher about the money not being distributed, and complained about illegal activity in relation to the prize money not being disbursed, speaking about the incident in the Washington Post.
Despite winning the Pulitzer Prize, Gottlieb alleges he was not assigned any further investigative reporting duties and was instead sent to Orange County, where his career had initially started, while two other reporters were given the title of investigative reporter.
In August 2014, Gottlieb was told he would be the backup obituaries reporter and then given a choice of covering a variety of topics he considered decent for a new reporter, but not a veteran. In 2015, he had surgery for prostate cancer and was on disability leave for almost eight weeks. Upon his return from leave, he was told he could write obituaries, at which point Gottlieb quit his job.
"Plaintiff felt forced to resign due to his intolerable working conditions, effectively constructively terminating his employment with defendants," court documents state. Shortly after, however, the Times reportedly had a buyout and targeted older reporters with the buyout. Furthermore, Gottlieb alleges, the paper generally hired younger employees and gave better jobs and benefits to employees under the age of 40.
"During plaintiff's employment with defendants, defendants intentionally engaged in age discrimination by discharging employees over the age of 40 with greater frequency than other employees," the lawsuit states. Gottlieb's suit is filed against the Los Angeles Times and editor and publisher Davan Maharaj.
The newspaper has called the allegations "completely without merit."
The lawsuit is Gottlieb v. Los Angeles Times, et al. case number BC630018, in Superior Court of California, County of Los Angeles.
Makers of Rooster Sauce Sues over California Harassment
Irwindale, CA: Harassment can take on many forms, and in this case it’s not so much an employee feeling harassed by an employer at the workplace, but the manufacturer of a hot sauce suing the City of Irwindale, for California harassment.
The product, Sriracha Hot Sauce with the distinctive depiction of a rooster on the bottle (known amongst fans and users as ‘Rooster Sauce’), is made by Huy Fong Foods. There is little doubt that Sriracha hot sauce, amongst hot sauce aficionados, is somewhat revered for its eye-watering heat.
However, hotness so robust it brings forth tears appears not to be limited to mere consumption of the product. It was alleged at one time that fumes originating with the Sriracha manufacturing facility have severely impacted residents of Irwindale.
According to a report carried by FOX News (07/25/16), the municipality filed a lawsuit against Huy Fong in 2013 over the fumes. Residents were complaining. However, health officials looked into the matter and found no health violations, so the City dropped its lawsuit against the manufacturer. Huy Fong, for its part, pledged to resolve the issue of robust fumes.
Then, earlier this year, a second lawsuit was filed against Huy Fong by the municipality - this time, for a tax issue. It was alleged that Huy Fong had been late filing its municipal taxes. The City sought $427,085 in damages.
Huy Fong responded with a California harassment lawsuit, countering the municipality’s legal challenge. In its harassment lawsuit, Huy Fong seeks a court order declaring any previous fees to be invalid. Failing that, the manufacturer seeks the consideration of alternative actions, including a ruling that would allow Huy Fong to recover not less than $750,000 in previous legal fees incurred while defending itself against previous and current legal action pursued by Irwindale.
“Huy Fong Foods has employed local residents and held job fairs for local workers for the past three years,” the California harassment countersuit states.
“The factory is a popular tourist destination and brings visitors and revenue into the city - so popular, in fact, that Huy Fong Foods added two trams to transport visitors around the plant and even opened a gift shop.”
The manufacturer notes that it employs dozens of Irwindale residents, hosts events for the community and provides free Rooster sauce and related merchandise to the community worth about $100,000.
As a result of the 2013 lawsuit, Huy Fong pledged to eradicate fumes escaping the plant as part of a written commitment. There was no mention in the municipality’s subsequent lawsuit with regard to the unsavory fumes continuing, or having been successfully eradicated.
Gretchen Carlson's Wrongful Termination Lawsuit Against Fox
Sacramento, CA: Women who have been victims of sexual harassment at work may have given a little cheer when Gretchen Carlson filed a wrongful termination lawsuit and sexual harassment lawsuit against Roger Ailes, Carlson's former boss at Fox News. And although the lawsuit was filed in New Jersey, the implications of the suit will likely be felt across the US, as the defendant argues the lawsuit should be dismissed and sent to arbitration. In the meantime, more women have come forward alleging a pattern of sexual harassment from Ailes.
Carlson was a long-time television host, including hosting an afternoon program called "The Real Story with Gretchen Carlson" on Fox News. She is a graduate of Stanford University, a best-selling author, an award-winning journalist, and a former Miss America.
According to court documents, Carlson's employment with Fox News was terminated on June 23, 2016, by Ailes in retaliation for Carlson refusing Ailes' sexual advances. Carlson alleges that when she met with Ailes to discuss his discriminatory treatment of her, Ailes commented that some problems are easier to solve through a sexual relationship. Carlson then rejected Ailes' demands for sex and within the year her employment at Fox News was ended.
"Notwithstanding her strong performance and tireless work ethic, however, Ailes denied Carlson fair compensation, desirable assignments and other career-enhancing opportunities in retaliation for her complaints of harassment and discrimination and because she rejected his sexual advances," the lawsuit alleges.
Carlson had previously complained about a hostile work environment created by Steve Doocy on the show Fox & Friends, in which Doocy, Carlson's co-host, mocked her, shunned her, belittled her, and treated her as a "blond female prop." Ailes' alleged response to Carlson's complaint was to tell her she needed to "get along with the boys."
Ailes has since left his position as CEO of Fox News, after more women came forward with allegations of sexual harassment. Included among those was Megyn Kelly, who said Ailes sexually harassed her around 10 years ago. So far, the lawsuit names only Ailes as a defendant, not Fox News or 21st Century Fox.
In response to the lawsuit, Ailes has filed a motion to dismiss, noting that Carlson agreed to arbitration when she signed her contract with the network. The contract requires Carlson to take any employment dispute with Fox News to a confidential arbitration panel, rather than to a court. Ailes' attorneys argue that just because Ailes is named in the lawsuit and Fox is not, does not negate the arbitration clause, according to the Los Angeles Times (7/8/16).
Yet Another Wage and Hour Lawsuit Claims Lack of Overtime From Uber
San Francisco, CA: A proposed class action wage and hour lawsuit by a former UberX driver is accusing the San Francisco-based company of failing to pay its drivers overtime. While plaintiff Jaswinder Singh hails from New Jersey, which is where the lawsuit was filed, the proposed class action becomes a California Wage and Hour lawsuit by default, by virtue of the California headquarters for Uber, and a proposed class action that could potentially benefit drivers from the Golden State.
The proposed wage and hour class action would include class members who drove for both Uber, and UberX, identified as the lower-cost division of Uber.
In his wage and hour lawsuit, Singh identifies himself as serving as a driver for UberX from August 18, 2014 through to September 21, 2015 - a period of just over a year. Singh identifies himself as an employee of Uber, not an independent contractor.
The plaintiff holds that for the 13 months he worked for UberX, he was required to bear most of the expenses involved including, but not limited to the costs for fuel, road tolls, his mobile phone (the lifeblood of an Uber driver), and other expenses for which Singh claims he should have been reimbursed.
Singh also holds that he worked, on a consistent basis, at least 60 hours each week, but received no overtime for any hours worked beyond 40 hours per week as required under state law.
At the heart of the wage and hour lawsuit is whether, or not Uber and UberX drivers are employees, or independent contractors. Previous wage and hour lawsuits filed in Massachusetts and California were recently settled for up to $300 million. Uber, following the settlement, noted that Uber drivers in California and Massachusetts would remain independent contractors. There were no references to Uber and UberX drivers in other states.
Uber has previously held that drivers are independent contractors and not employees, who sign on as Uber drivers and are connected to patrons and fares using the Uber app, ferrying their fares around in their own vehicles.
Plaintiffs, however, note that Uber controls much of the process and experience for the fare, with the Uber driver having little say in that process. The latter, say plaintiffs, detracts from the usual definition of an independent contractor which provides a service to a client based upon an agreed-to set of parameters for service, but with the contractor remaining completely autonomous in the delivery of that service.
Plaintiffs in California Wage and Hour lawsuits and those in other states hold that Uber and UberX drivers are, in actual fact non-exempt employees of Uber and thus, should qualify for overtime and other benefits as entrenched in state laws.
The proposed wage and hour class action lawsuit is Singh v. Uber Technologies, Inc. case No. 3:2016-cv-03044.
Florida Blue Agrees to Settle ERISA Lawsuit
Sacramento, CA: Florida Blue has agreed to settle an ERISA lawsuit, in a move that could have implications for a similar lawsuit filed in California. The lawsuit involves the insurer's refusal to cover Harvoni, a potentially life-saving drug that has been shown to successfully treat hepatitis C.
Family Responsibilities Leading to More Employee Lawsuits
Los Angeles, CA: A new study conducted by the Center for WorkLife Law at the University of California Hastings College of the Law suggests that discrimination against workers who take time to care for family members has resulted in more employee lawsuits being filed against employers. Those lawsuits allege violations of a number of laws, including the Family and Medical Leave Act (FMLA) and other state and federal laws. Perhaps surprisingly, men make up 38 percent of all FMLA cases reported, indicating they, too, are victims of discrimination when they take time off to care for family members.
The report, titled “Caregivers in the Workplace,” covers all types of family responsibilities discrimination - both those that involve violations of FMLA and those that violate state or other federal law. The author found that the number of family responsibilities discrimination cases increased 269 percent in the past 10 years, with cases involving care of an elderly person - usually filed under FMLA and state laws - jumping 650 percent.
“The essential conclusion of this report is that employers have not implemented effective policies and practices for managing employees who have family caregiving obligations,” Cynthia Thomas Calvert, author of the report, wrote.
Some lawsuits are being settled or have resulted in awards for the plaintiffs. The report cites a California lawsuit in which a phlebotomist who returned to work after leaving to care for an ill daughter received unwarranted discipline and negative performance reviews. The plaintiff was awarded more than $287,000 in 2014. In a different case, a production supervisor was fired after she told her employer she needed FMLA leave to care for her husband. The plaintiff in that case was awarded almost $500,000 in 2011.
FMLA lawsuits are filed by employees in a range of careers who face a variety of situations, including caring for children, taking maternity/paternity leave, caring for spouses or caring for elderly parents. The report cites the case of a surgical nurse who was approved for intermittent FMLA leave for two years to care for her mother, but was then disciplined for absenteeism even when it was covered by FMLA. The nurse was ultimately fired for violating company policy. Her lawsuit settled.
Employees have the right to protected leave when they are caring for family members. This means they cannot be fired, discriminated against, harassed, disciplined, or otherwise face consequences for using or applying for FMLA leave. Violations of these rights indicate that employers either do not understand or do not care about FMLA laws. Either way, such actions can result in lawsuits being filed against employers.
Well-Known Fitness Brand Associated with California Wage and Hour Class Action
Los Angeles, CA: You would be forgiven if West Covina Corporate Fitness is a name that doesn’t ring an immediate bell for you. But Gold’s Gym might. In actual fact, West Covina Corporate Fitness Inc. (WCCF) does business in California under the Gold’s Gym banner, a popular brand amongst fitness buffs and professionals who like to get a little sweat equity in before work or after leaving the office for the day. However, WCCF is currently facing a California Wage and Hour class-action lawsuit over the alleged exclusion of commission wages earned by fitness trainers from hourly rates for the purposes of computing overtime.
The California Labor Code contains various wage and hour provisions for ensuring employees are paid their due. Standard practice holds that overtime pay is calculated as one-and-one-half the hourly rate when work time exceeds 8 hours in any given day, or 40 hours in a given workweek for all non-exempt employees.
The class-action lawsuit suggests that the exclusion of commission wages from the hourly rate effectively lowers the hourly rate for the purposes of computing overtime pay - and thus reduces the actual amount of overtime to which an employee would otherwise be entitled.
Another factor not uncommon to other California wage and hour lawsuits of this type is the allegation of missed meal and rest periods - again mandated by California labor laws. Employees are supposed to be provided with a paid, 30-minute meal period to be taken prior to the completion of the fifth hour of work during a daily tour of duty. The meal break is mandated to be uninterrupted by work commitments or other work-related distractions, ensuring the employee has a half hour to himself to nourish, rest and recharge. A series of shorter rest breaks are also required to be provided throughout the day.
The California wage and hour class action brought against WCCF alleges meal periods were often missed because WCCF did not have a designated system in place to ensure those meal periods were consistently provided, according to law. Were an employee be required to work through a paid meal break, he is effectively working overtime for those 30 minutes and should be duly paid.
The lawsuit was filed April 8 in Superior Court for the State of California, Case No. BC616304. Lead plaintiff in the proposed California Wage and Hour Class Action is Charles San Nicholas.
Meanwhile, a healthcare provider and the target for several lawsuits over the years has revealed through the release of its Form 10-K report filed with the US Securities and Exchange Commission (SEC) at the end of 2015, that a settlement to stem allegations in a California Wage and Hour lawsuit has been formally approved by the court.
The lawsuit, filed originally as a class action, was brought in April 2008 against DaVita Healthcare Partners Inc., a provider of kidney dialysis and an operator of several clinics throughout the country. The complaint, which was filed in the Superior Court of California, alleged that DaVita failed to provide meal periods, failed to pay overtime for missed meal periods and rest breaks, failed to pay overtime in general, and failed to comply with various other requirements as entrenched in the California Labor Code and state labor laws.
DaVita won the day on several trial court rulings, but the plaintiffs appealed and a tentative settlement was reached in June 2015. DaVita revealed in its Form 10-K filing that the proposed settlement, already having been granted preliminary approval, had been formally approved by the Court.
The value of the California wage and hour settlement in the DaVita case was not disclosed, but is presumed to be in excess of $3 million.
Former Firefighter Awarded $2.3 Million
Vallejo, CA: A former California firefighter has been awarded $2.3 million in his wrongful termination and retaliation lawsuit, filed after he was allegedly fired for complaining about breaches in procedure. The plaintiff, Todd Milan, alleged in his wrongful termination lawsuit that two of his superiors retaliated against him when he reported the breaches to officials.
According to Patch (3/23/16), Milan attended a fire at a mobile home on September 29, 2011. During the fire, Milan was required to enter the mobile home and expected that his captain would enter with him, as per requirements that firefighters work in pairs. The captain reportedly did not enter the mobile home with Milan and did not have his gloves on while at the fire.
Speaking with KTVU (3/18/16), Milan said he ran into the burning mobile home to rescue a paraplegic man trapped in his bed. Although Milan reached the man while he was alive, he was unable to pull him from the mobile home without help and had to leave because of the intensity of the heat. The man later died from his injuries, and Milan says he suffered burns on his hands, face and back. Milan was reportedly blamed for the man’s death and reprimanded for his actions.
“At all times herein mentioned, Defendant’s managerial employees knew that the statements in [the captain’s] written report and reprimand were false, were being used to cover up errors of ranking officers, and were intended to set up Plaintiff for discipline and ultimate termination,” court documents allege.
Milan alleges the fire chief told him his story about the incident should match the accounts given by other firefighters, which he took to be a threat. He also had allegedly previously been told he should not speak with the Division of Occupational Safety and Health due to a PTSD diagnosis. After Milan reported the incident to the Division of Occupational Safety and Health, his superiors reportedly retaliated against him, including not allowing him to retake a failed examination, being falsely accused of being late for work or leaving early, and being written up based on false or misleading statements.
The plaintiff filed the lawsuit in November 2012 after he was dismissed from his job. A jury agreed with Milan and awarded him $2.3 million.
The lawsuit was Milan v. City of Vellajo, case number FCS042585, in Superior Court of the State of California, County of Solano.
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