How Many F-Bombs Are Grounds for California Labor Lawsuit?

Sacramento, CA Although California is an employment at-will state, California labor laws don’t give employers carte blanche to treat their employees unfairly. Wrongful termination is a violation of the California labor code.

Kimberly realizes that verbal abuse may not be reason enough to file a California wrongful termination lawsuit, but she is thankful for the opportunity to speak out about her former managers at Staples. They dropped the f-bomb and even the c-word on her too many times.

Clearly, Kimberly was a valuable employee at this particular Staples store: she was hired in May 2011 as a cashier and became full-time inventory lead for the entire store within a few months. As well, she started at $8.75 per hour, then got a raise to $9.25, and a few months before she was fired, Kimberly was given another raise to $10 per hour.

“I ran the store without a GM for several months so I had a really good track record and I did extra work with no pay increase; you do it for the team,” she says. And she often worked 6 p.m. until 2 a.m. shifts doing inventory without overtime compensation.

“We were often behind on a load - 10 pallets a week would get delivered and it was my sole responsibility to get products onto the shelves,” says Kimberly, “and I never took breaks or lunches from August last year until I was terminated. They would make me come in weekends for so-called one-hour meetings and I wouldn’t get paid. That happened about 20 times. Of course I asked my supervisor for overtime pay but I was told it was store policy - Staples doesn’t pay overtime.”

But overtime is just one complaint. Kimberly tolerated extreme verbal abuse from a new supervisor for several months before she was wrongfully terminated.

“This new supervisor had it in for me since Day One,” Kimberly explains. “She didn’t like me because I didn’t want to train her - she should have known her duties. ‘I have no problem working with you but I am not doing your job,’ I said. Her response was abusive: She called me a bitch and the C-word. All sorts of people heard her drop the C bomb. But almost all employees are scared to complain or speak out against anything or anyone for fear of losing their job.

“Next up, she hired her friend as part-time supervisor, which is still above me. Then she wrote me up. I was in the management trainee program but she removed me in May, about a month after she was hired. In response to my write-up, my General Manager showed up and said, ‘If I didn’t like your f**king ass or have respect for you, I would fire your ass right now.’ They talk like this to anyone who makes them the least bit angry. By the way, I had only met the GM three times.

“And I’m not the only one singled out and getting abused. My former co-worker Don [not his real name] still works for Staples. Our GM brought his daughter, age 13, to the store every Sunday afternoon and told Don to keep an eye on her. It stopped him from completing his work and affected me too because he was my right-hand person. So he complained to HR. ‘When you have a f**king problem come to me next time instead of squealing to HR because now I have a f**king problem and next time I am gonna make it worse for you guys,’ the GM told Don. We dealt with threats daily.”

Last May, Kimberly received another negative write-up - she wasn’t far from termination. She went to HR with harassment and verbal abuse complaints but HR said she had to talk to the GM first - then he would instruct HR!

“My GM told me to talk to the part-time super and either negotiate terms and kiss her ass and make her happy or I would lose my f**king job,” says Kimberly. “I had no choice. I went into her office and right away she was on the defensive so it didn’t go well. I explained that my job is to take care of the store and make it run properly and not socialize with her when I am helping customers.”

Three days later at 7:30 a.m. Kimberly was fired. And she didn’t get paid for that day: she was entitled to four hours pay because she was scheduled to work. Kimberly says this is how it went down:

“Firing your ass sucks for me too because now I don’t have anyone to help me run the store,” the GM said.

“So why are you letting me go?”

“If you just kissed her ass, you could have kept your job,” he replied.

“The way they treat people is horrible,” says Kimberly. “I just hope this doesn’t happen to anyone else. I filed for unemployment but I am pretty sure Staples is going to try to deny me by saying it was my fault due to job performance. But I have an audio recording from my previous GM saying I was a great worker. I know that it isn’t right to record anyone but I told him beforehand and he said, ‘Just do what you have to do.’ I was just scared for my job. Maybe that audio recording will come in handy one day…”

Walmart Faces Criticism in Dispute with Employees in California

Paramount, CA Walmart faces criticism over its handling of a California labor dispute, according to reports. The National Labor Relations Board investigated the California labor complaints, as well as complaints in 12 other states. The issues stem from Black Friday protests, which were organized in California and other states across the US.

According to the Los Angeles Times (11/19/13), the National Labor Relations Board found Walmart acted unlawfully in dealing with employees who threatened to strike on Black Friday in 2012. The company reportedly threatened discipline against employees who took part in the strikes and took unlawful action against workers who did take part in the job action.

As a result of the National Labor Relations Board’s findings, Walmart may have to provide back pay to employees and reinstate some workers. The New York Post (11/18/13) reports that the National Labor Relations Board could sue Walmart over the company’s actions, which reportedly included firing 117 employees. A lawsuit could be filed if Walmart does not settle with employees.

The National Labor Relations Board issued a statement (11/18/13) noting that while it found merit to some of the complaints, it found no merit to others. Among the charges that it did not find merit with were complaints that employees were told to move off Walmart property and complaints that Walmart unlawfully changed work schedules.

But other complaints had merit, the board found, including that Walmart stores in California and other states “unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities,” and “unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.”

Meanwhile, Yelp faces a class-action lawsuit in California alleging the people who write reviews for the website should be paid because the company could not continue without them. Yelp offers reviews on a wide range of businesses including restaurants, law firms and hairdressers.

According to the lawsuit, Yelp reaches 108 million people per month, with more than 42 million reviews. Profits come from advertising that is sold on the site. “The practice of classifying employees as ‘reviewers’ or ‘Yelpers’ or ‘Elites’ or ‘independent contractors’ or ‘interns’ or ‘volunteers’ or ‘contributors’ to avoid paying wages is prohibited by federal law, which requires employers to pay all workers who provide material benefit to their employer, at least the minimum wage.” The lawsuit was filed in the US District Court for the Central District of California.

Home Depot Faces California Labor Lawsuit

Orange County, CA Home Depot reportedly faces a California labor lawsuit alleging the company discriminated against gay employees. The lawsuit, which was filed in California, also alleges harassment on the part of some Home Depot employees and contends that Home Depot discriminates against gay employees to avoid benefits offered under the California Domestic Relationship Act.

Courthouse News Service (10/4/13) reports that plaintiff Hardy Housh filed the lawsuit alleging Home Depot discriminated against gay employees in response to financial hardships. The goal, Housh alleges, was to lower the payroll and the benefits the company was financial responsible for. For example, Housh alleges, Home Depot was concerned about medical benefits because of the costs associated with HIV and AIDS viruses.

Housh was reportedly 57 years old and had been with Home Depot for 25 years when he was fired. He was an assistant manager at one of the company’s California stores. When the chain had financial difficulties, it allegedly sought certain employees to fire on the basis of age and sexual orientation to lessen the company’s payroll and financial obligations.

According to the lawsuit, Home Depot allegedly wrote up fake write-ups on employees who were targeted. Furthermore, managers reportedly harassed Housh, including sending sexually explicit pictures to his e-mail. The harassment reportedly began after Housh included his partner in his insurance plan.

Home Depot has denied the allegations. The lawsuit reportedly seeks $100,000.

Meanwhile, The Hollywood Reporter faces a lawsuit of its own, alleging violations of the California Labor Code and other employment laws. The lawsuit, filed in September by David Simpson, names Prometheus Global Media LLC as the defendants and alleges that the company willfully misclassified their freelancers as independent contractors, denying them wage and hour rights under the California Labor Code.

“With the exception of their status as independent contractors, ‘freelancers’ are indistinguishable from employees in all material respects,” the lawsuit alleges. This includes being in the office from 9 to 5 Monday through Friday, attending mandatory work meetings and supervision identical as that given to employees. The only reason for classifying these workers as independent contractors is to deny them overtime pay, rest and meal breaks, and reimbursement for business expenses.

The lawsuit, case number BC522638 seeks class-action status.

Janitors Allege Ross Dress for Less Equates Work for Less

Oakland, CA A California-based chain of discount clothing stores has been accused of undermining fair play and fair pay for custodians by allegedly creating a sophisticated scheme that serves to lower the chain’s costs for custodial services on the backs of low-paid immigrant workers in violation of California labor law, or so it is alleged.

Ross Dress for Less (Ross) is a clothing chain based in Pleasanton. According to a report in the Contra Costa Times (9/6/13), Ross is accused of contracting janitorial services through USM Inc. (USM), an enterprise headquartered in Pennsylvania. USM, as a go-between or sub-contractor, then hires janitors and janitorial companies to actually undertake janitorial services at Ross’ 1,000 stores across the country.

The crux of the California labor lawsuit, brought by three residents of Oakland, is that Ross allegedly shortchanges USM, through the provision of funding less than what might be reasonably required to undertake the hiring of qualified janitorial staff or contractors.

The result, according to the California labor code complaint, is such under-funding leads to the hiring of so-called “fly-by-night” enterprises, which in turn use immigrant labor, denying those workers adequate pay for work performed.

The California labor lawsuit, filed last month in Alameda County Superior Court, was originally put by three Oakland residents who accuse Ross of violations under California labor employment law. However, it has been reported that lawyers close to the case are hoping to see the lawsuit evolve to a class action.

“Ross knows, or should know that the funds provided to USM under their agreement(s) are not sufficient to allow USM to comply with all applicable local, state and federal laws,” the lawsuit states. For those workers toiling as janitors in Ross locations in the state of California, reduced pay stemming from the alleged underfunding for provision of janitorial services constitutes an alleged violation of California prevailing wage law.

According to the California employee labor lawsuit, the three plaintiffs were issued paychecks that were late, reflected values that were insufficient compared with the work performed, or checks that lacked overtime pay for work performed at Ross locations. The plaintiffs worked for firms contracted by USM Inc. to provide janitorial services for Ross Dress for Less.

California labor law works in concert with federal wage provisions under the Fair Labor Standards Act (FLSA) in order to uphold statutes and provisions designed to ensure workers are provided an adequate wage within the eyes of the law and fair play. When that doesn’t happen, workers have various regulatory and legal options to pursue a claim.

When Is a Supervisor Exempt under California Labor Law?

Sacramento, CA Claudia is employed as a supervisor in the retail industry, and as such, she is classified as exempt, which is in keeping with the California labor laws. But she spends most of her time stocking shelves, helping customers and cleaning the store after hours, for which she does not get paid overtime. Claudia believes she has been misclassified.

Navigating your way through the FLSA (Wages and Fair Labor Standards Act) guidelines to determine whether you are exempt is not a clear path. For instance, Claudia’s “primary duty” as a supervisor must consist of work that meets the criteria for exemption, such as managing employees. But those responsibilities can also include other duties that those employees she manages are also doing. Claudia believes that the only reason her employer classified her as exempt and pays salary instead of hourly is so that he doesn’t have to pay her California overtime.

“I complained to my boss about being misclassified as exempt and working more than 50 hours a week and he gave me two options: accept my position or quit,” says Claudia, who questions whether her employer has violated the California labor code.

Claudia understands that salaried employees can legally work more than a 40-hour week. But does she have a choice - is she legally entitled to be classified as non-exempt, get paid an hourly wage and overtime compensation? Claudia has done the math and even at minimum wage, with 10 hours a week in overtime compensation (at 1.5 times her hourly rate), she would be better off financially as non-exempt.

“I want to consult a lawyer and see if I am within my rights to get non-exempt status,” she says. “I only ‘manage’ two employees, and only when the boss is away. Everything else I do takes up about 80 percent of my time, such as helping customers and taking stock. There are so many gray areas in the California labor law. I personally feel that I don’t have any clarification of the labor law code and neither does my employer; I think I can only get answers from an employment attorney.”

Supervisors can question their exempt status if most of their time is spent performing non-exempt duties, but that amount of time is tricky to determine because a supervisor arguably can direct the work of an employee while serving a customer or stocking shelves.

Federal regulations recognize the concept of multi-tasking or “concurrent duties” and that supervisors can manage employees while performing other tasks, but this management must consist of more than occasionally directing others. For instance, Claudia manages employees only when her boss is away and therefore spends most of her time performing non-exempt work. Her exempt status likely does not apply.

A recent California labor lawsuit (Heyen v. Safeway, Inc.) involved an assistant store manager who claimed she was entitled to overtime because she spent most of her time bagging groceries and stocking shelves and bookkeeping. To be exempt, California law stipulates that more than half the working time be spent performing exempt work. Safeway claimed that she concurrently managed others while engaged in other tasks and therefore met the requirement. The state appeals court, however, rejected that argument.

Although the “concurrent duties” (like multi-tasking) rule was added to federal law in 2004, it was not added to the California labor code. In the Safeway case, the court determined that the supervisor’s mundane work was not “helpful in supervising employees” and did not meet the exemption criteria, so the employee was entitled to overtime.

In California, a percentage of time must be spent performing exempt work, which may raise the burden for proving an exemption even if the concurrent duties concept is recognized in the state.

When Is Verbal Abuse a Violation of the California Labor Law?

Lake Forest, CA Justin is afraid to enter a Costco store due to an incident of verbal abuse that led to his termination. He worked for 18 months at Costco for Warehouse Demo Specialists (WDS) until last month. Now Justin wants to know if the abuse he was subjected to is a violation of California labor law.

It all started because Justin had to go to the bathroom. He knew the drill: try to contact the boss first and, failing that, pack up his station before leaving. “I called my boss to see if I could get a replacement but after three attempts, including texting, I gave up. I packed everything away then shut down my stand,” says Jason. “I was gone for about ten minutes. When I returned, a man was standing at my station and asked if I was Justin. Affirmative. Then he started freaking out, yelling at me that I couldn’t leave my stand, no matter how bad an emergency.”

The man yelling at Justin was Costco’s “Loss and Prevention” employee, like a security guard who was mainly employed to prevent shoplifting. He certainly didn’t have the right to tell Justin that he wasn’t allowed to go to the bathroom.

“This guy was getting louder and louder as I tried to remain calm,” Justin explains. “I said, ‘Sir, I know that verbal abuse is in violation of the California labor code and you have no right to treat me like this,’ but that got him even more irate. He accused me of not being at my station since 11am, which was ludicrous because I started work at noon. Then he left, telling me he was coming back with Jeff, the Costco manager.”

Jeff and the abusive guy escorted Justin to a security room, where another security officer was watching the store’s video cameras. Justin was told to sit down and then had more abuse hurled at him. Justin, age 27, was in this room with three big men in their 40s, - rather intimidating.

“Jeff told me that I couldn’t ‘cuss inside Costco’ and that threw me because I wasn’t the one swearing,” Justin explains. “The security guy screamed that I was a liar. All they had to do was look at their cameras - that would have shown I didn’t do anything wrong. Instead the other security guy put both arms on my armrest and within inches of my face yelled ‘You are a filthy liar, dirty liar, quit lying.’ His sweat flew into my face. I said, ‘You have to let me go and I will not talk to you again without having a labor lawyer present.’ Then he replied that I had to calm down. I left the room and phoned my WDS boss, Nahid. She said Costco is not allowed to reprimand me without one of my bosses present.

“Nahid asked me to finish the day and I agreed. But within five minutes, the security guard was mouthing threats from two aisles away. I called Nahid again and she asked him to leave. Negative. So Nahid said I could go home because it was a ridiculous situation.

“I packed up and he followed me out of the building, so again I called Nahid and said I didn’t feel safe returning to this location. That was the last time I was in Costco. I have been out of work since July 18th. WDS could easily give me a position in another Costco but I think that Costco told WDS to fire me. I loved my job; I loved giving free samples to the public.

“My complaint is wrongful termination and verbal abuse, which I think constitutes harassment. I had three men in my face yelling that I am a liar but refused to look at the evidence - the cameras. They ganged up on me to protect the security guy who was obviously having a mental meltdown.

“I am angry. I have experienced anxiety attacks and cannot go into Costco again. The loss prevention guys go to different Costco’s so I could run into him - I know he was threatening me. Ideally I want my job back and I want this guy reprimanded. Costco should be aware that this guy could potentially be dangerous.”

Unfortunately for Justin verbal abuse, like harassment, is illegal only when a person is discriminated against due to their age, disability, national origin, pregnancy, race, religion, gender or other statutes protected by state or local law, according to the California Labor Law.

As for Justin’s employer and Costco, however, they could be held liable for not providing an employee with a safe and healthy workplace under regulations from the federal Occupational Safety and Health Act. OSHA states that an employee faced with verbal abuse can fairly claim that the abuse interferes with their ability to go about daily job duties. An employer can be held responsible for retaining the services of an employee who verbally abuses another employee. So Justin may just have a case.

Target Faces California Labor Lawsuit Over Multicultural Memo

Sacramento, CA Target faces a California labor lawsuit alleging the company’s anti-racism literature is in fact racist. The lawsuit, filed in California by employees at one Target warehouse, alleges violations of labor laws, including laws prohibiting discrimination and retaliation.

Courthouse News Service (7/8/13) reports that three employees, Robert Gonzalez, Bulmaro Fabian and Pedro Garcia-Ayala, filed the lawsuit with allegations of harassment, discrimination and retaliation. They claim they were subject to racist comments and racial slurs from management at the distribution warehouse. When Target provided an anti-racism document on multicultural relations, that document reportedly included information about Hispanic employees, including:

“a. Food: not everyone eats tacos and burritos;
“b. Music: not everyone dances to salsa;
...
“d. Mexicans (lower education level, some may be undocumented)”

The employees further claim that they were retaliated against by managers, most of whom were white, when they complained about working conditions to human resources, including having managers attempt to humiliate them, and were fired for discriminatory reasons, including their race and age.

The lawsuits seek punitive damages.

In a response sent to The Huffington Post (7/12/13), Target said the memo only went to one distribution center and was not part of official training curricula. The company apologized for distribution of the memo.

Both California labor law and federal labor law prohibit discrimination and harassment based on race. Harassing comments can be seen to contribute to a hostile work environment for employees, while job decisions - including hiring, firing and disciplinary actions - cannot be made for discriminatory reasons, such as race, national origin or age.

Meanwhile, Apple Inc. faces a lawsuit alleging its employees were not properly paid for overtime. The two plaintiffs allege they were forced to stay during unpaid breaks and after they had clocked out from their shift to have their bags searched. According to court documents (found online at gigaom.com), those bag searches could take between 10 and 15 minutes each, time for which employees were not compensated. Because the searches were done solely for Apple’s benefit, employees say they should have been paid for their time. One of the plaintiffs alleges the extra time adds up to around $1,500 a year.

The Apple lawsuit, case number 3:13-cv-03451-EDL, seeks unpaid wages, overtime and penalties.

Wrongful Death Alleged in California Labor Lawsuit

Atascadero, CA Many people have heard of wrongful termination and similar California labor lawsuits, but a recently filed California labor law claim alleges that a woman’s employment resulted in the death of her baby. Specifically, she alleges that although she requested accommodations due to a high-risk pregnancy, those accommodations were not made, and her infant died shortly after birth.

According to court documents, Reyna García’s job as general merchandising manager at an Albertson’s in California involved loading and unloading large quantities of merchandise and pushing or pulling heavy pallet jacks. The lawsuit alleges that because of a previous premature birth, García had a note from her doctor medically restricting her from lifting more than 15 pounds. This letter was reportedly given to her supervisor, as were two other doctor’s notes, written after she complained of increasing pain and discomfort, including nausea and pelvic pressure.

García alleges in her lawsuit that her supervisor refused to accommodate her requests for accommodation, a violation of California’s Fair Employment and Housing Act.

“Although Ms. García was concerned for her health and the health of her baby, she stayed on the job because she needed the income and because her health insurance was provided through Albertson’s,” the lawsuit alleges.

On November 12, 2012, García reportedly complained to her supervisor of pelvic pressure and asked to leave work but was denied. That evening, she was reportedly rushed to the hospital. Her baby stayed alive inside her until November 17, when the doctor informed her that the baby was brain damaged. That day, the baby girl was delivered. She survived only 10 minutes.

According to the lawsuit, however, García’s issues with work continued as she was allegedly retaliated against when she returned to work after her six weeks of recovery. The retaliation reportedly included “eliminating her supervisorial and merchandise ordering responsibilities and issuing her a baseless write-up for alleged insufficiencies in her job performance during a period when she wasn’t even at work due to prescheduled days off.”

The lawsuit claims the defendants - New Albertson’s Inc, SuperValu and García’s supervisors - violated California’s Fair Employment and Housing Act by not engaging in a good-faith process with García when she requested an accommodation based on disability and by retaliating against her for making a request for pregnancy-related leave. Under the California Government Code, García’s high-risk pregnancy was considered a disability and should have allowed for accommodations to be made at her employment.

García seeks compensatory, general and special damages in her lawsuit. The lawsuit is case number CV 130309, in the Superior Court of the State of California, County of San Luis Obispo.

Allegedly Forcing Workers to Toil Off the Clock Lands Car Wash in Hot Water

Fresno, CA The iconic lyrics of Rose Royce’s “Car Wash” notwithstanding, a car wash can be a challenging place to work at the best of times: it’s always damp, the pay is low and the work often backbreaking and thankless. “You might not ever get rich, but let me tell ya it’s better than diggin’ a ditch…” All hands may not agree with that last statement. However, California labor law sets out various tenets and regulations for car wash workers in an attempt to make the work at least fair if not palatable.

All too often, however, employers fall down on that basic basket of rights, as a recent California labor lawsuit aptly demonstrates. According to the Fresno Bee (3/12/13), White Glove Car Wash is facing a lawsuit filed by the Office of the Labor Commissioner of California for failure to pay adequate wages to 33 workers employed at the Blackstone Avenue facility in Fresno.

The allegation is that White Glove failed to pay its workers minimum wage and overtime. The lawsuit was filed in Fresno County Superior Court and is seeking in excess of $279,000 in unpaid wages, penalties and damages.

An investigation into allegations of misconduct and affronts to the California labor code was undertaken by the Labor Commissioner’s office and the Department of Industrial Relations (DIR). The investigation found that workers - having started work - were often delayed in “clocking in” at the behest of a supervisor. Given that the hourly paid employees were not allowed to clock in, independently, until instructed by a supervisor, many employees worked several hours in a week off the clock, and for which they were allegedly not paid.

In some cases, according to the California and labor law report, employees would put in eight full hours of work and be paid only four.

“Making workers stand by for work without paying them, and covering up the violation by keeping false time cards, is a breach of the basic promise of a just day’s pay for a hard day’s work,” said Julie A. Su, California labor commissioner, in comments defending California labor employment law.

Those comments were echoed by Christine Baker, director of the Department of Industrial Relations. “Employers who deny workers the pay they’ve earned will be held accountable,” said Baker. “These illegal actions hurt not only the employees, but also honest businesses and taxpayers.”

It was reported that the Labor Commissioner’s office has been cracking down on the car wash industry of late, given the increasing and repeated violations of California employee labor law.

Various federal and state statutes govern the workplace in an effort to ensure workers are treated fairly. Su’s office has been noticeably aggressive in pursuing complaints of wrongdoing under California prevailing wage law and other statues, in an effort to protect not only affected workers, but also to support law-abiding employers who lose business to more cutthroat employers able to charge lower prices due to lower costs - costs borne on the backs of their workers.

Employees who suspect ill treatment and violations to California state labor laws are urged to seek a qualified attorney to pursue a claim.

General Nutrition Corp Employees Filed California Labor Lawsuit

Sacramento, CA If you are one of about 8,000 current or former General Nutrition Corp. (GNC) assistant managers or sales associates, read on: You could receive overtime compensation pay under the California labor law and FLSA .“On January 7th a California federal judge granted class status to this case, which was brought by a former employee of GNC,” says employment attorney Leonard Emma.

Charles Brewer, a former California employee of GNC, filed a complaint in July 2011, which has since been amended twice. In January 2012 the suit claimed that employees who worked the closing shifts at GNC retail stores were not properly paid for certain tasks they completed after clocking out for the day, and often failed to receive California overtime pay. U.S. District Judge Yvonne Gonzalez Rogers ruled the certification partial because the scope of the opt-in class includes sales associates and assistant managers only and not managers and senior managers at GNC stores, which was asked by GNC employees in their initial request.

“There are two class actions within this lawsuit.” says Leonard Emma. “Plaintiff alleges overtime violations under the Fair Labor Standards Act (FLSA) on behalf of a nationwide class, which the Court certified. Plaintiff also alleges meal and rest period violations, off-the-clock violations and related causes of action on behalf of California employees. Plaintiff will move the Court to certify the California case next.”

The lawsuit (Case No.: 11-CV-03587 YGR) alleges that GNC doesn’t pay its retail store employees when they perform closing duties. “At a certain point during the night, GNC retail store employees log off the cash register and clock out. But they are still required to perform closing duties, including making offsite bank deposits, which leads to overtime violations.” In other words, taking the deposit to the bank after clocking out constitutes overtime.

Furthermore, GNC says it is up to its employees to report their hours accurately but there is no formal training provided regarding how employees can get paid for closing duties. According to GNC,

(1) employees are permitted to enter an estimated future time when they will be done working

(2) if they go over the estimated time, they can, with management approval, claim that time as overtime.

Emma says there is evidence that GNC discourages people from reporting hours worked beyond those hours they are scheduled for. “And as the court noted, GNC does not have any written policies or training and that, coupled with corporate culture to discourage overtime, results in people working off the clock nationwide. “

According to an opposition to class certification filed by GNC last October, the company says that it has maintained a time-card system that prompts employees working the closing shifts to estimate time they might spend completing tasks after they officially clock out. GNC further stated that it provides training to teach employees about making those estimations, and provides workers with an opportunity to make corrections to their time card.

Judge Rogers disagreed. The January 7th ruling said that the company had not provided evidence of written company policies that back up those contentions.

As per the court order: “GNC has no written policy setting forth the procedure for an employee to be paid for time spent performing post-closing duties; no written policy on estimating hours worked; and no written policy on adjusting hours to account for time spent performing post-closing duties if an employee exceeds the time estimate."

The court estimates that 8,000 class members in the US--GNC sales associates and assistant managers -- "may be entitled to overtime under the FLSA.