Transportation News
California Labor Lawsuit Nets $4.7 Million Settlement
The lawsuit was filed against Schneider Logistics and alleged that the company illegally deducted wages from employees and did not pay overtime. The plaintiffs alleged that Schneider held an invalid election for an alternative workweek schedule, which, according to The Huffington Post (12/10/13), cut employees out of overtime pay, misled employees into voting for the alternate workweek schedule, had employees sign waivers that they did not want their meal breaks and failed to provide employees with a regular schedule.
Among the claims against Schneider, as listed in court documents, were unpaid overtime, breach of contract, unlawful rest breaks, unpaid reporting time and paying secret wages. At least one employee, according to The Huffington Post, said he did not understand his rights and he felt pressured into signing them away. He also said the forms he signed were in English but he can only read Spanish, so he often did not understand the forms he signed.
Ultimately, Schneider agreed to settle the lawsuit for $4.7 million, including payments to class members, fines to the Labor Workforce Development Agency, attorneys’ fees and costs, and class administration costs. Schneider also agreed to terminate the alternate workweek, and agreed to not use waivers asking employees to sign away their rights to overtime pay.
Up to 568 current and former hourly employees are affected by the settlement, which received preliminary approval from the judge. In agreeing to the settlement, Schneider Logistics did not admit any wrongdoing.
Some of Schneider Logistic’s actions, however, came under fire by a judge earlier in 2013. According to reports, attorneys with the company met with employees to interview them about working conditions, but allegedly did not tell the employees that any information given during the interviews could be used against them in court. The judge, who found the actions “fundamentally misleading and deceptive,” found that Schneider could not use the employees’ sworn declarations against them in court.
The Schneider lawsuit is Franklin Quezada v. Schneider Logistics Transloading and Distribution, U.S. District Court for the Central District of California, No. 12cv02188.
California Labor Law Needs Compassionate Code
Shawn, 49 years old and married with an eight-year-old son, was a truck mechanic at one of the biggest freight companies in the US. He routinely had his shifts changed, one week starting at 4 p.m., another week at 1 a.m. “All those years it never affected me until recently, maybe because I am getting older,” says Shawn. “We always partnered on shifts, but on one shift change I was working the night shift alone in this huge facility with nobody there, not even security. I got anxious to say the least. One night it was so bad I left early and went to ER. I had no idea what was going on until they ran blood tests, and it cost me $1,500.”
The ER doctor told Shawn that he was having an anxiety attack. Shawn had more tests and his family doctor advised him to change the shift work and not work alone or it would kill him. He was prescribed medication for anxiety and he wasn’t sleeping well either - a common occurrence with shift work. But this was definitely a wake-up call: two of Shawn’s co-workers had suffered heart attacks and one guy had a heart attack on the job and died - he was working alone. One night, Shawn’s anxiety got so bad that he had to go home.
“I told the guy I was working with that I had to sit in my car but I hadn’t clocked out,” Shawn explains. “I fully intended to clock out but I felt so lousy I had to sit down for a minute; I was afraid that I might trip or fall; I was an accident waiting to happen.
Shawn’s manager found him sitting in his car. “I explained that I felt bad and had to go home but he placed me on suspension and I was terminated a week later - September 4,” Shawn says.
Shawn tried to fight their decision - by himself. The company has a so-called “best practices code,” which is supposedly a way for an employee to fight the reason of their termination. “First, I had a conference call with my manager and his manager and then they called and fired me a week later,” he says. “I appealed within the company (you get three chances to appeal so this was my second time) and it went up the management ladder, this time including some people from HR. They shot me down again. I said I wanted to appeal again and this time it would be via mail, no calls. They came back with the same decision.”
Next up, Shawn filed for unemployment - something he had never done before. He received a few checks and was looking for work. Then, without notice, the checks stopped. He e-mailed the California Unemployment Development Department and they replied that his former employer was denying his unemployment benefits. They also told Shawn that he would get a letter with a court date to appeal that decision. Shawn was shocked - he had no idea of how the process worked.
“I went to court with my wife and son. My boss didn’t even show up with the excuse that it was too far to come - 50 miles. I drove 30 miles,” says Shawn. “But he was on the conference call and the judge was asking us both questions. The judge said he would take everything into consideration and send the results via mail. But it didn’t take long: he made a decision the next day, in my favor.
The judge said that if I had clocked out before I sat in my car this would never have happened. But it was a one-time occurrence. I believe that I have been wrongfully terminated: this incident spiraled out of control because I was working alone and had to endure so many shift changes.”
Adding to his problems, Shawn is now suffering from depression. He is worried that getting fired will tarnish his perfect work history of 25-plus years. “I was told that the company cannot disparage me in any way,” he says. “Apparently, they aren’t allowed to say that I was fired. However, I want to apply for a job with the city and one question they ask is whether you have ever been fired. I have to be honest so I didn’t continue the application. I am hopeful that an employment attorney can advise me. And it’s not over yet - I have to wait 20 more days to find out if I will be able to continue collecting unemployment because the company can appeal the judge’s decision!”
To be continued after 20 days. And at that time the company will be revealed…
Unions Launch California Labor Lawsuit Over Contract Clause Clawback
According the Contra Costa Times (12/3/13), the dispute centers on a clause in a recently negotiated contract that provides for six weeks of paid leave to care for a newborn, or an ill or injured family member - in addition to normal provisions for vacation pay and sick leave.
The BART board, according to the report, is characterizing the paid leave agreement as a clerical error in the contract and voted November 21 - following initial agreement of the proposed contract by both sides - to require that approval of the proposed contract be conditional on a new union vote on a revised contract without the paid leave clause.
The paid leave provisions would saddle the BART transit authority with additional costs, although it would depend on how many union members would take advantage of the perk. The labor contract would cost BART $67 million over four years. The paid leave provision could cost the Authority an additional $6 million, to $44 million over the life of the contract.
BART wants the paid leave provision struck from the contract. The unions are sticking to their guns, saying that the provision was in the original proposed contract that was agreed to by both parties.
The unions involved in this California labor code dispute are Amalgamated Transit and Service Employees International. According to the newspaper report, the unions had previously launched legal action against BART over alleged issues surrounding California and labor law this past June.
When both sides reached a tentative agreement October 21 - an agreement that both unions ratified - it was thought that legal action against the transit authority could come to an end.
That doesn’t appear to be the case now. The unions are seeking, through the courts, to force the employer to accept the terms of the proposed contract as agreed and as ratified by the union membership according to the tenets of California and labor law.
A professor of law is quoted in the report as saying that there is no precedent for an employer, having negotiated a contract and signed off individual tentative agreements, to come back and attempt to back away from a previously agreed-to clause.
While the California labor lawsuit is at play, various members of the bargaining unit noted that an out-of-court settlement might be possible, and that the door has been left open for further negotiations, provided they are meaningful. The report noted that a judge, rather than decide on the legality of the employer’s attempt to back away from an agreed-to provision, could simply order the two sides back to the bargaining table.
The transit authority appears poised to try its luck in court, rather than enter into new talks. “I’m not aware of any case where a member of the judiciary has told an elected board, ‘You have to accept this unratified contract no matter what it costs,’” BART board Vice President Joel Keller said, in a statement to the Contra Costa Times. “And if it is forced upon us, it could result in a fare increase.”
The California labor lawsuit was filed in Alameda County Superior Court December 3.
Keep On Trucking - Past California Overtime?
Christopher believes, as evidenced by many people and even some attorneys online, that it boils down to that old adage - too many cooks spoil the broth. “Overtime for commercial drivers is regulated by the US Department of Transportation and the Federal Motor Carrier Safety Administration,” Christopher says, “and they dictate how long we can drive, including breaks and overtime. Add to the fray our employer’s rules and regulations and California labor law, because it seems like a lot depends upon individual and state contracts and it gets complicated.”
California labor law attorneys seem to agree on the fact that there is no definable answer to Christopher’s overtime question - and that the overtime laws for truckers can be complex, mainly because the Department of Transportation and the Department of Labor overlap and have different regulations. And Christopher doesn’t even know if he is exempt from overtime. Most truckers are paid by the mile, whereas Christopher is paid by the hour. Some commercial drivers are classified as independent contractors and others salaried. It gets complicated.
Christopher says he talked to his HR rep and she told him that no one gets paid overtime, even though some of the other drivers in the company drive out of state. Currently, Christopher drives only interstate, i.e., in California only (If you drive in “interstate commerce,” you are not entitled to overtime. If you do not, you can claim overtime pay), but Christopher says he is slated to drive out of state soon, adding another reason why he is entitled to overtime compensation.
Christopher’s truck is licensed at 45,000 lbs and he hauls mattresses for the factory that makes them. “I have been working here for 15 months and so far I have probably chalked up 200 hours of overtime,” he says. “I always work 10-12-hour days, and once or twice a week I drive about 14 hours a day.
“A typical day starts around 4 am when I arrive at the factory and pick up the 18-wheel truck. My first stop is anywhere from three to more than six hours away, and that is when I take my first break. All six of us drivers do this every day. Next up, it is a matter of where the next stop takes me. It can be anywhere from one hour or four hours away, and we have an average of eight or nine stops a day.”
When it comes to meal breaks, Christopher may have a claim. While truck driver exemptions apply to California labor law, they do not apply to California meal breaks, so truck drivers are usually entitled to a 30-minute meal break. As of April 2012, the California Supreme Court decided that employers are required to provide employees “off-duty” meal breaks. This section of the law applies to Christopher:
No employer shall employ any person for a work period of more than five (5) hours without a meal period of not less than 30 minutes, except that when a work period of not more than six (6) hours will complete the day’s work the meal period may be waived by mutual consent of the employer and the employee. Unless the employee is relieved of all duty during a 30 minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked. An “on duty” meal period shall be permitted only when the nature of the work prevents an employee from being relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is agreed to. The written agreement shall state that the employee may, in writing, revoke the agreement at any time. California Code of Regulations, Title 8, §11040.
“I sometimes take lunch on the side of the road. I usually get something to go and eat lunch while I’m driving - multi-tasking saves me time - it means I will get home 30 minutes earlier. I get home exhausted. I’m 45 years old and this is affecting my health.
“I e-mailed the California labor board several months ago and never got a reply. I am frustrated - all I want is an answer besides that my question is complex, a gray area, yadda yadda. Why can’t we get an answer? I would appreciate anything at this point.”
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California Labor Lawsuit Filed against Trucking Company
The Los Angeles Times (5/15/13) reports that truck drivers for a southern California trucking company have filed a lawsuit against the company alleging they were misclassified as independent contractors so their employer could avoid paying them overtime and giving them breaks.
The plaintiffs allege that rather than being independent contractors they acted as employees by driving trucks owned by the company. The Times article notes that five lawsuits were filed by Attorney General Jerry Brown against California trucking companies, alleging they violated state labor laws and misclassified employees as independent contractors.
Meanwhile, three contractors have been fined a total of $1.8 million for violations of public works regulations. A news release issued by California Labor Commissioner Julie A. Su noted that the companies willfully violated labor law and affected 94 workers in the process.
“Let these enforcement actions serve as notice that wage theft - whether it be through nonpayment of overtime, failure to pay proper prevailing wage, underreporting of hours worked, bounced checks used to pay working people, and cheating on apprenticeship training funds - will not be tolerated in this state,” said Labor Commissioner Su.
One contractor was ordered to pay almost $550,000 in wages and $650,000 in fines for not properly paying employees. According to the labor commissioner, the company also falsified documents and intimidated workers in an effort to prevent the commissioner’s investigation. A second contractor was ordered to pay $275,000 in wages and almost $125,000 in fines after being found to pay much less than the prevailing wage for its project, and failing to pay proper overtime.
The third contractor was ordered to pay more than $180,000 in wages and $30,000 in penalties for misclassifying workers in an attempt to pay them less, for underreporting hours and for issuing checks without enough funds.
California Labor Law: Is FedEx Heartless?
California’s Labor Code states that an employment relationship with no specified duration is presumed to be employment “at-will.” In theory, this means that the employer or employee may terminate the employment relationship at any time, with or without cause. But it isn’t black and white. The at-will rule created by statute, the courts or public policy has exceptions. An employer can terminate a worker at will and, as long as it isn’t for the “wrong” reason, they won’t violate the California labor code.
In Sylvia’s case, she was fired for “stealing” from the company, although that accusation is quite a stretch. One employment attorney says that he has heard from employees whose employer accused them of stealing. Even though the employees had proven that someone else stole, the employer is still within rights to terminate that employee because it is not unlawful or “wrongful” termination.
“I was hired by FedEx in 2006 as lead project coordinator and my job was to make sure FedEx orders were delivered correctly - I had to catch all and any errors,” says Sylvia. “Everything was going well until about eight months on the job, when I had an argument with my assistant manager about child care. He threatened me by saying that if I left work to pick up my daughter from daycare I wouldn’t have a job when I returned.”
Sylvia scrambled and managed to get a friend to pick up her daughter, but she then found herself working in a hostile environment. She called her district manager and asked for a transfer: if she couldn’t be transferred, her only alternative was to resign.
“Thankfully I was transferred to another FedEx location but I had to work nights. My district manager, however, promised me that I would only have to work the night shift for one year. Two years later I was still working nights so I reminded my supervisor about the promise and that I couldn’t work nights anymore. Their solution: my hours were decreased from a regular 40-hour week to seven hours per week.”
Sylvia believes they were forcing her into resigning because of the daycare issue. She wrote a letter to HR explaining that she had to step down from her job as project coordinator. Apparently that seemed to work - she was transferred to another location and worked full time again. “Everything was working well and I got promoted two years later to assistant manager,” Sylvia adds. Six months later I was promoted to center manager and all was good for 18 months: I had nothing but great reviews and no write-ups.”
All was good at work, but Sylvia’s home life was another story. She filed for divorce after a 20-year marriage and became clinically depressed. Her doctor prescribed anti-depressants; Sylvia says the meds made her very forgetful and she found it difficult to function.
“I had an appointment with my doctor to get a different kind of medication and forgot to clock out,” Sylvia explains. “That day, my doctor said I had to get out of work on disability or I would have a nervous breakdown. So I went out for 24 days. Three days after I returned to work, I was fired! My supervisor told me that I entered the wrong information on my time card and another time I opened the center late; in other words, I made a few mistakes. The day I was fired I took an additional pill by accident and blacked out.”
Sylvia explained her problem to the district manager and he put her on administrative leave for two weeks. But a month later she was still waiting to return to work.
While she was waiting to come back, not knowing when she could return, and no communication whatsoever, Sylvia received an email saying, ‘We are committed to a full investigation for your sake and the company and when we are ready we will call you.’
“I went back to work and gave them a letter from my doctor saying I should take another few weeks off,” says Sylvia. “They called me three days later and fired me on December 14, 2012.”
Sylvia says she applied for unemployment benefits but FedEx is disputing that, with the excuse that she entered the wrong information on her time cards and in effect stole from the company.
“My doctor’s note says the side effects from my meds could be memory loss but they don’t care,” Sylvia says, crying. “I think they are heartless.
“I appealed my termination and just today they said I wasn’t getting my job back, regardless of my medication excuse. They also said that I was a center manager and should know better. I have one more appeal, which will go to the vice president of FedEx this week. The VP is supposed to look at my entire file and talk to the district manager who fired me. So if that doesn’t work, I will seek help from an employment attorney.”
LawyersandSettlements has contacted FedEx HR and is waiting for a reply.
Under California Labor Law, Employees Are Not Independent Contractors
According to a release by PR Newswire (3/1/13), drivers piloting trucks on behalf of Seacon Logix were made to sign agreements with their employer, labeling them as independent contractors. As such, according to California labor code, the drivers would not be eligible for overtime or other provisions that would be due an actual employee of a firm.
However, according to the report, when four Seacon Logix drivers filed wage claims with the Long Beach office of the California Labor Commissioner, it was determined upon further investigation that Seacon exercised sufficient control over its drivers that a designation of independent contractor proved invalid under California labor employment law.
The drivers reported to the Division of Labor Standards Enforcement (DLSE) that business expenses were not reimbursed by the company, together with deductions deemed unlawful under California state labor law. Those deductions, it was alleged, included weekly truck rental fees and liability insurance costs, according to the report.
The original hearings in the case took place in November 2011, and the decision went in factor of the plaintiffs. At the time, Seacon Logix was required to pay $105,089.15 for violations of unlawful withholding of wages, interest and waiting time penalties under California prevailing wage law.
Seacon Logix appealed to the Superior Court. On February 28, the California Superior Court upheld the original finding and encumbered Seacon Logix to pay its drivers $107,802.00, including interest. It was reported that drivers will see the full benefit of the award.
In a statement, the California Labor Commissioner said, “In this case, drivers had signed agreements labeling them independent contractors but the Court saw the truth behind the label.” Labor Commissioner Julie A. Su went on to say, “The Court found that the company exerted sufficient control over the drivers such that the drivers were employees of the company and thus, enjoy all basic labor law protections.
“This case highlights the critical need for labor law enforcement, particularly where misclassification cheats hardworking men and women like these port truck drivers out of the full pay to which they were entitled,” continued Labor Commissioner Su, in addressing the California employee labor law case. “This is wage theft and we will do everything in our power to stop it.”
ERISA Not Just About Protecting Investments
employee stock plans, the truth is that ERISA covers much more than retirement plans. Included in ERISA benefits are insurance provided through an employer, meaning that any claims about employer-provided insurance are covered by ERISA.
Covered by the Employee Retirement Income Security Act of 1974 (ERISA) are retirement, health, life insurance, and disability insurance plans. Covering only private employers, ERISA does not require employers to provide health insurance or other benefits plans; it simply sets out rules for when employers choose to offer such benefits. If employers choose not to offer benefits as covered by ERISA, they are not governed by ERISA rules. Furthermore, ERISA does not cover insurance policies that are purchased privately. It only covers those provided by an employer.
Under ERISA, those in charge of health plans and other benefits must provide information about the plan's funding and features, must abide by their fiduciary responsibilities and must provide an appeals process for people who have a grievance with their plans. Finally, ERISA gives participants the right to sue plan fiduciaries in cases where there is a breach of fiduciary duty.
Before a lawsuit can be filed, however, under ERISA the claimant must exhaust administrative remedies before filing a lawsuit. This means that if the insurance company has an internal appeals process, the claimant must file an appeal before filing a lawsuit, if the insurance policy in question is provided by the employer (private insurance, because it is not covered by ERISA, does not have such a requirement and a lawsuit can be filed once the first denial is received.)
Many insurance companies have rules for filing appeals, including a set time in which to file. Certain medical records and an appeal letter may also be required. If that appeal is then denied, a lawsuit can be filed to enforce the claimant's rights. A plan beneficiary or participant can file the lawsuit, depending on the circumstances, and the lawsuit is typically filed against the plan fiduciary or administrator.
It is important to note that under ERISA a claimant will not be awarded punitive damages; all that can be claimed are costs associated with the insurance policy.
California Labor Law: "I'm Stuck between a Rock and a Hard Place," Says Bus Driver
Michael drives the school bus three hours a day and performs maintenance work for the remaining five hours. He also gets paid a stipend as the school's volleyball, basketball and track coach. But for the past seven years he has also been driving students to and from sports tournaments, a job he should be getting paid for. Michael diligently records the hours he drives to the tournaments on his time card but he says that, instead of getting paid overtime, his hours are "whited out" before getting sent to the payroll department at the Department of Education.
"I know they are whiting out these hours on my time sheet because I looked before it got faxed to the payroll department, and I also have a photograph of it on my phone," Michael says. "When I told the superintendent that I have to be paid overtime for driving, he said that I couldn't get paid to drive and coach because that would be 'double-dipping.' But I didn't think that was true and now the Department of Labor confirmed that not paying me is a violation of the California labor code.
"I get paid a stipend for coaching and I'm fine with that. But I started driving kids to and from the tournaments when I started coaching so they owe me a substantial amount. Unfortunately I'm not in the union because three other classified employees are required to form a union. I called the union's headquarters, however, and asked them if I should be paid to drive. They said it is definitely illegal for them not to pay me.
"As for forging my time card, the California Labor Board said that is also absolutely illegal. But I'm afraid of retaliation: I need my job, so right now, I'm caught between a rock and a hard place??"I am the only breadwinner in the family; I take care of my wife, my mom and my mother-in-law; I even rented my house and moved in with my mother-in-law??"that's not easy.
"And here's yet another California labor law violation: The two people in the school's administration office are already mad at me because I told the auditors that I bought stuff with my own money and turned in the receipts but never got paid. For instance, I bought a lock, varnish and paint from the hardware store and never got reimbursed. Ever since the auditor brought this up with admin, they only talk to me when they have to. So it's got to the point where I feel like I'm working in a hostile environment. I just do my job and come home and try to ignore it.
"If I quit my job I won't be able to collect unemployment without good reason for leaving. If and when I get another job I wouldn't hesitate to leave. In the meantime, I would still like to pursue legally what can be done about getting compensated??"I want to know the process before going ahead. But at the same time I really don't want them to know…I believe getting an attorney rather than filing a claim with the Department of Labor will be my best recourse."
California Labor Law: Being White Also Spells Discrimination
"All of our work was supposed to be a team effort - t was company policy," says Austin, but the team didn't include him. "Every time I had a problem, such as running out of fuel, not getting somewhere on time, or a problem with the truck, no one helped me in any way. But they constantly helped each other and they expected me to help them.
"When I was first hired, everyone joined a pool - they bet on when I was going to quit. They gave me two days, then a week, then a month. They either called me 'whiteboy' or 'puta' and constantly said disrespectful things about me in Spanish, thinking I don't know what it means. [Puta literally means 'whore' in Spanish.]
"Here's another issue: Anytime there was a fuel spill, the boss told us to clean it up and it was kept quiet. But anytime I caused a spill, I would have to write up the legal form, which is fine, but everyone should have to fill out the form and sign - it's the law.
"The drivers always said I couldn't work as hard as a Mexican. I wasn't part of their clique because I wasn't Mexican and I was reminded of that daily. But I was a hard worker and never had any complaints; I was sent on all the new jobs because I was a good worker. About two months ago I told my boss, who is also Hispanic, about all these discriminatory slurs and that I was going above his head if nothing could be done about it. 'That would just cause problems for yourself and get yourself into more trouble,' he said.
"I was also given the lousiest truck to drive. After a while I wasn't the new guy anymore, which meant that I would get a better, newer truck. But the new Hispanic guy got the good truck and I stayed in the old beater. These older trucks cause more spills and the motor often gives out, creating a big problem with 10 fuel stops a day. By the fifth stop I would invariably have something go wrong, more spills, holes in hoses, all kinds of issues. And that is what I was terminated for: a hose popped and gallons of fuel leaked; I was fired for a hole in the hose that I had no control over. Every time I had a spill it was due to a mechanical error, but I'm not a mechanic (the mechanic is also Mexican and he never worked on my truck).
"I believe that I was fired because I'm white, for not being Mexican. When I worked really hard, my boss complimented me by saying, 'You work like a Mexican,' and times when I wasn't so busy my supervisor said, 'Every white guy I've hired has given up on this job.'
"I doubt this company will hire a white guy anytime soon and that is wrong. Mexican guys have this idea that white guys don't work as hard, and that's just not true. A lot of places have more Mexican guys working than white guys because the employer sometimes pays them below minimum wage, and that is also a California labor law violation. This economic mess has hurt all of us, no matter the color of your skin. But I shouldn't have lost my job because of racial discrimination."
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