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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…
Injury Risk Not Lost on Knott’s Plaintiff Who Now Suffers from Vision Problems
It was last year that Kristine Laborte, then age six, was a participant on the Timber Mountain Log Ride when she hit her head against the seatback in front, breaking a bone above her right eye. She was accompanied on the ride by her father, James, who held his daughter on his lap. The incident happened when the ride stopped suddenly at the bottom of the flume, causing both James and Kristine to slide forward. The injury, according to the family’s Amusement Park lawsuit, happened on July 27, 2014.
The plaintiffs assert the injury to their daughter could have been avoided if there were safety measures built into the ride, such as more adequate feet or leg braces installed in the interior of the log-shaped cars to prevent occupants from unexpectedly sliding forward. The Labortes also claim that better monitoring of the water levels at the bottom of the drop could have also prevented the injury to the little girl.
There appears to be some merit to the plaintiff’s claims, given prior compliance issues inherent with Knott’s. According to the Orange County Register (5/13/15), a similar incident in February of 2001 resulted in an order by the California Division of Occupational Safety and Health (Cal-OSHA) to add braces to the logs/cars. Three months later, in May of that year, Knott’s reportedly advised Cal-OSHA that the additions had been duly made, and Knott’s had complied with the order.
Eleven years later, in 2012, Cal-OSHA was back to Knott’s again, this time with an order to enhance monitoring of the ride’s water levels. A subsequent report from Cal-OSHA noted that between May 2013 and January of this year, the water levels on the ride were not properly monitored.
It was during this period that the Laborte Amusement Park Accident occurred.
The summer is high time for amusement and theme parks. With children off school and families on summer holiday, amusement parks are a favorite pastime. Sadly, summer is also the time of year when spikes in Theme Park Accidents and even Amusement Park Deaths occur. Defendants in various lawsuits have been found, variously, to have dropped the ball when it comes to proper and ongoing maintenance, and/or supervision of the facilities.
The Amusement Park Lawsuit notes no fewer than nine previous incidents at the park, from 2000 through 2014 from which children sustained injuries, according to the Los Angeles Times (5/11/15). Had there been sufficient water levels at the bottom of the ride to cushion the stop of the log-shaped car, the impact might have been entirely mitigated or less severe. As it was, the lawsuit claims, there was insufficient water to cushion the car’s arrival at the bottom, resulting in an abrupt stop that threw the little girl’s head into the back of the seat in front, breaking the orbital bone above her eye. She lost consciousness and has suffered from vision problems since.
The Laborte lawsuit was filed in May in Orange County Superior Court. The plaintiffs are asking for punitive damages together with compensation for medical bills.
California Cheerleaders Cheering Minimum Wage Legislation
According to The Associated Press (7/1/15), although the legislation is welcome, cheerleaders and their supporters say labor law already guarantees them minimum wage and overtime. They often do not receive that pay because they’re misclassified as independent contractors.
Workers are considered independent contractors if they have a great deal of authority and discretion in how they perform their work and carry out their duties. For example, if they set their own schedule, choose what to wear while working and control the work they do, they are more likely considered independent contractors. In the case of cheerleaders, their work is tightly controlled - from the clothing they wear, to how they do their hair and makeup, to the dance routines they perform, and the off-site events they attend.
“NFL teams and their billionaire owners have used professional cheerleaders as part of the game day experience for decades,” Gonzalez said in a statement on the legislation. “They have capitalized on their talents without providing even the most basic workplace protections like a minimum wage. If the guy selling you the beer deserves a minimum wage, so does the woman entertaining you on the field. All work is dignified and cheerleaders deserve the respect of these basic workplace protections.”
In addition to not being paid minimum wage, cheerleaders were found to not be paid overtime and spent their own personal funds - in some cases a significant amount - to pay for items required by the team, such as uniforms and hairstyling.
Minimum wage in California is currently $9 an hour. According to lawsuits, some cheerleaders made as little as $5 an hour and were not paid for all training sessions. The Raiders cheerleaders reportedly made $1,250 per season before the lawsuit. Meanwhile, Salon (1/30/15) notes the lowest paid player on the Oakland Raiders makes approximately $400,000 a year.
A lawsuit filed against the Oakland Raiders was settled in 2014 for more than $1 million. Lawsuits have been filed against the Jets, Bengals, Buccaneers and Bills.
One of the cheerleading lawsuits was Lacy T. et al v. The Oakland Raiders, case number RG14710825.
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.
Health Club to Settle California Employee Lawsuit
According to reports, Equinox Holdings, which owns locations around California, has agreed to pay more than $4 million to settle lawsuits filed by employees who allege they were not properly paid or provided with meal breaks. Class members in the lawsuit, including massage therapists, nail technicians and aestheticians, will share in around $2.6 million, with the rest going to attorney’s fees, a payment to the California Labor and Workforce Development Agency, and payments to the named plaintiffs.
The lawsuit, case number BC481860, was filed in 2012 and will see employees compensated for shifts worked from March 2008 to October 2014.
According to court documents, the plaintiffs alleged that they were not paid properly for overtime because either non-commissionable time was not counted in daily hours worked or because the required minimum wage from non-commissionable hours was not included in the calculation.
Previously, the company agreed to pay $2.9 million to settle a lawsuit alleging Equinox did not properly pay its employees overtime and denied workers proper meal breaks. That lawsuit, Shirlene Leigh and Joanna Sheen v. Equinox Holdings Inc., case number BC463577, was filed in 2011 and alleged its membership sales advisers had been misclassified as exempt. The company also said it had reclassified the employees as non-exempt.
In that lawsuit, the membership sales advisers said they spent most of their time selling memberships and services rather than involved in exempt tasks.
According to Club Industry (2/23/15), Equinox still faces a lawsuit filed by Gavin Sykes, who alleges he was not properly paid for overtime, did not receive proper meal and rest breaks, and was subject to racial and sexual orientation discrimination. In his lawsuit, Sykes reportedly alleges that he was made operations administrator and was required to report labor violations but was told to alter time cards to make it appear that labor laws were being followed. Sykes alleges that when he refused to do so he was demoted and subjected to discrimination.
Sykes’ lawsuit also alleges wrongful termination.
Cheerleaders to Gain Under Proposed California Labor Law Bill
“If you look at California labor law, it is clear given what these girls are signing as far as contracts they’re being treated as employees if not compensated as employees,” said California Assemblywoman Lorena Gonzalez, D-San Diego, who briefly considered trying out to be a Golden State Warriors cheerleader in college before concluding that the pay wouldn’t cover her expenses.
“Every person you come in contact with - the guy who parks your car, the ticket taker, the guy who sells you the beer, the guy who cleans up after you, the coaches, the trainers, the players - they’re all getting paid for their work, and the only people not getting paid for what they’re doing is the group of women,” Gonzalez said, in comments published in the Sacramento Bee (1/30/15).
At first glance, cheerleading can be viewed as somewhat of a glamorous job. The fans love you, and you can get your mug on TV the odd time. Those lucky enough to earn some face time during the broadcast of Super Bowl XLIX would have been seen by millions. But is the pay worth it?
Gonzalez and others of the same mind don’t think so - and there have been numerous lawsuits attempting to make that very point. Last year, one of several lawsuits filed under California and labor law against the Oakland Raiders by cheerleaders who felt they were underpaid, proved successful. To that end, a Superior Court Judge in Alameda approved a settlement valued at $1.25 million.
And there have been others across the country. Cheerleaders who led the charge at one time for the Buffalo Bills claimed they were underpaid by the team and took the Buffalo Bills franchise to court. Another cheerleader in Ohio sued the Cincinnati Bengals claiming that what she received in compensation from the team amounted to less than minimum wage.
In Oakland, plaintiffs alleged that the team charged them for their own uniforms, hair and makeup, docked them pay for missed rehearsals and held their pay until the end of the season. Plaintiffs alleged that when all was said and done, cheerleaders made less than minimum wage and were not paid for overtime, an affront to California labor employment law, or so it was alleged.
Gonzalez was a collegiate cheerleader at Stanford in her youth. AB 202 would treat cheerleaders as proper employees under the California labor code, which would serve to extend minimum wage and overtime provisions to cheerleaders who work for teams in the state of California.
There are three NFL teams (National Football League) in the state, whose cheerleaders would benefit from the proposed California labor employment law provisions in AB 202.
California Labor Law: Settlement with Cheerleaders Announced
Plot Thickens in Raiderette California Labor Lawsuit
The lawsuit, filed January 22 in Alameda County Superior Court, alleges that “Raiderettes” - the named tagged to cheerleaders employed by the team - effectively earn less than $5 per hour, a sum far below minimum wage grids and California prevailing wage, once rehearsals, charity events and other costs the women allegedly have to bear themselves are taken into account.
According to the lawsuit, Raiderettes are paid $125 for each of the 10 pre-season and regular season home games. Plaintiffs in a lawsuit that is proposed as a class action representing all Raiderette cheerleaders who have toiled for the team over the past four years, allege the women are required to pay all their own travel costs and other expenses - including makeup and hair for the team’s annual swimsuit calendar photo shoot - together with various fines for missing altogether or reporting late for rehearsals, and bringing the wrong pom-poms to practice.
The lawsuit also alleges the team withholds pay until the end of the football season.
The DOL launched an investigation from the federal side about a week after the lawsuit was brought. However, according to The San Francisco Chronicle (3/20/14), the feds closed their investigation after it was determined the California Raiders constitutes a “seasonal” operation and thus is exempt from federal minimum wage laws.
However, it is expected the lawsuit will go ahead, given that the state of California does not recognize such an exemption for season operators. As well, at $8 per hour, the minimum wage in California is 75 cents above the current federal standard - a rate that is about to rise to $9 in July, with a corresponding rise to $10 per hour January 1, 2016 for the state of California.
According to The Chronicle, the Raiders are lobbying to have the lawsuit removed from the courts and transferred to the Office of the Commissioner for the National Football League, for arbitration. The report references a claim made by the team, and officially filed in court papers March 20 in Alameda County Court, that all cheerleaders agree, as per their employment contract, to refer any and all disputes with or involving the team to binding arbitration before the commissioner.
So far, there has been no response from the plaintiffs as to the fate and future of their lawsuit, which claims that the Raiderette’s compensation package and costs violate California labor employment law. It is not known what role the employment contract will play in the matter, and whether or not an employment contract will circumvent the California labor lawsuit.
The lawsuit, alleging violations to the California labor code, was originally brought by “Lacy T” (surnames withheld according to team policy), a 28-year-old stay-at-home mom. She was soon joined by a co-plaintiff. The lawsuit is seeking class-action status.
According to the action, the team is not meeting the California prevailing wage. It is not known what role the team’s seasonal status will have, given the state does not recognize the same seasonal criteria observed by the feds. All eyes will be watching - and not just for the pom-poms, either…
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