Wage & Hour News
Fees Charged to Background Actors Said to Contravene California Labor Law
The Los Angeles Times revealed on May 19 that a prominent casting enterprise - Central Casting of Burbank - was issued a cease-and-desist order by the Attorney General's Office of the City of Los Angeles in concert with the California state labor commissioner.
A California labor code investigation, launched after some background actors (known popularly as "extras") complained, found that Central Casting had been charging $25 for what was identified as a fee tied to photographic and/or electronic images. The fee, presumably, was to recover the cost of processing in order to produce images necessary to promote a prospective background actor for potential employment.
However, the LA Times notes that according to authorities such a fee is in violation of California labor law, which prohibits any talent services enterprise from charging up-front fees for such things as the processing of images (photographic or electronic) in exchange for finding employment for a prospective "extra."
The Krekorian Talent Scam Prevention Act has been in force since January of last year. Through the Act, criminal charges have been filed against a handful of talent services alleging breaches of California state labor laws.
Labor Commissioner for the state of California Julie Su noted that her office was committed to enforcing California labor employment law in the state, regardless of sector. "This includes ensuring actors are not required to pay a fee which the labor law prohibits," Su said in a statement.
The director, Background Actors Department, of the Screen Actor's Guild, echoed her words. "We're very pleased the city attorney and state labor commissioner have taken this action, and we support them wholly in this effort," said Terri Becherer, in comments published May 19 in the Los Angeles Times.
Central Casting was not the only company targeted. Communiqués noting the violation and the California labor employment law statute to which the violation applies were forwarded to 13 other casting enterprises in Los Angeles. Other entities have been known to charge anywhere from $15 to $80 to background actors for services not within their purview to charge, under California labor law.
California Labor Law Violations: Last-Day Pay and More…
When the bakery hired Michelle - who is a cake decorator and has a culinary arts degree - last December, she wouldn’t have taken the job if it paid minimum wage, mainly because she had to drive one hour each way to work. “When I got my first paycheck I thought my hours were short but HR said I had to start at minimum wage because I was a new employee. After one month the manager sent me to the other bakery where I was supposed to start baking and decorating. Instead I was on customer service for five months.
“I pretty much stuck with the job, hoping it would turn into a better position. Many things improved and we started doing ‘market night,’ like a farmers market where local vendors sell their wares. The first night the manager's friend, who wasn't on payroll, was working. Everything I did was wrong in his eyes. Instead of arguing I stepped back and waited for either one of them to tell me what to do. Later that evening, my co-worker had to run back to the bakery for coffee and she left the cash box with me. ‘You aren't supposed to touch the cash box,’ my manager screamed at me in public - how embarrassing.
“Market night was an 11-hour shift without lunch. I found out that after five hours you are supposed to be paid time and a half, but we were only paid overtime after eight hours. A few days before the market night, we informed our manager that we weren't able to take a lunch break with this kind of set up. 'No problem,' she said, which we interpreted as getting overtime pay. (My fiancé and I checked the hours and overtime compensation with the California labor board and it clearly states overtime is due when you work through lunch…
“The next day my schedule was changed and I was sent back to the first bakery. When I talked to a co-worker, she informed me that I was “getting a second chance’ but at the same time, I was very talented and a good worker. I asked her if I was possibly getting fired. Apparently my work wasn't very professional at market night, but I was getting all this instruction from the “friend.’ I think that no matter what I did, it wouldn’t have been correct.
“Over the last three weeks I worked at both bakeries which meant more travel time. And I was given tasks that were making it impossible to do in one shift. A few days before Easter we were extremely busy and one night I worked overnight. My shift was supposed to be 1am-9am. Instead I worked until 1:30 pm - 12.5 hours. Again, I only got time and-a-half over eight hours, and again without lunch. My manager said I could take my lunch while making a delivery to the other bakery.
“The next night the same thing happened again, and at the end of my shift my manager asked if I could work longer.
“I didn’t know that they were violating the California labor law until last week, when they fired me. I have no idea why I was fired. ‘I want you to come in tomorrow and decorate and I will call you with your schedule,’ my manager said. I finally phoned her. ‘I removed you from the schedule permanently and we no longer need your services,’ she told me. When I picked up my belongings, my coworker said I was fired because I was ‘no longer a good fit.’
“Going through the California labor code, I found out employers are supposed to pay you right away when you are terminated. But it's been more than a week, and I still haven't received my last paycheck.
“I also heard that it is illegal to fire someone over the phone. According to my mother, the employee has to be called in and then released person-to-person. But she works at Chevron, so maybe that is Chevron’s rule…
“As for overtime, I am waiting to hear back from a wage and hour attorney to find out if I am legally allowed to request my time cards and all payroll information pertaining to me. And I am going to speak with an attorney before I phone the California labor board so I don't screw up anything with my case.”
Levi Strauss Fined for California Labor Law Violations
According to Reuters, the Labor Department found that the jeans manufacturer had not recorded all of the hours that its employees had worked in its payroll system. As a result, the company mistakenly said that some workers were exempt from overtime, according to an investigation by the Labor Department's San Francisco district office.
"The federal rules governing the employee classification process are complex and it's common for companies to have issues with misclassification," a spokesperson for the company told the news provider.
The spokesperson added that Levi Strauss had worked with the department to review the information and answer questions that arose during the investigation.
A statement from the Labor Department said that the investigation examined the back wages for time worked during a span of two years, according to the news source.
California Labor Law: "Retaliation Means More Ammo for Me," Says Chauffeur
"I've been working with this company five years and our gratuities are included; they are automatically billed to the client," says Brent, "but we never get our tips??"and that includes about 30 of my co-workers; we're all in the same boat. And that's just one complaint with this company…"
Brent also says that all the employees have overtime issues with the company, and believe the company is making the most of today's economic problems. "I work 7 days a week, minimum 10 hours per day and sometimes up to 18 hours a day at my regular rate, which is $14 per hour," Brent adds. "I've complained to management on several occasions; the last time I brought up the subject of overtime at our regular chauffer meeting, the owners said, 'At least you have a job.'
"All of us employees are in a Catch-22 situation; - we're danged if we work overtime and danged if we don't. If we move on to another company, it will take two or three weeks before getting a paycheck. In the meantime we might as well keep going on. We get paid every two weeks and according to the California labor code, our tips are supposed to be included. Even though this isn't the job I want, it pays the bills, barely.
"To make matters worse, and the reason I am working so much overtime, is that my wife is sick - she has a brain tumor - so I have to keep up my medical insurance. The way it works with my company is that they take $332 out of my checks every two weeks to cover medical insurance; it would be decent if they added my gratuities. (My bosses know about my wife's illness.)
"My co-workers are afraid of complaining and I can totally understand; they are afraid of retaliation. And six chauffeurs were recently hired but only two are still working. I presume they were smart enough to read through the lines and see what was going on."
(If your employer retaliates against you in any manner whatsoever, that is a violation of the California labor law. For instance, if you object to your boss crediting your tips against your wages, you can file a discrimination/retaliation complaint with the Labor Commissioner's office and/or file a lawsuit in court against your employer. A wage and hour attorney can help.)
"I'm hopeful that I will file a lawsuit against this limo company," says Brent. "I know that I have a strong claim in this matter and I know it will take a little time, but an experienced attorney will probably help and I am told it would probably not take as long as trying to do it myself. I am willing to go the distance because no one should be treated this way. I haven't phoned the California labor board yet, because I know there is going to be retaliation, but at the same time, that will be more ammo for me."
"The driver's gratuities are included as part of the client's bill," says Penney Kemp, manager of Hancock Limousine Services. "We pay our employees all of their tips, every two weeks on their paychecks. We've been in business 12 years and have never done otherwise."
Some limo companies pay their drivers barely more than minimum wage, so they rely on tips to pay their taxes. Unfortunately, some drivers cannot rely on their employers to treat them fairly.
Levi Strauss Agrees to Pay Back Wages in California, US
The root issue of the violation is misclassification. But not everyone. The investigation found that the issue depended upon when an employee was hired by the company. To that point, it was found that employees working at previously existing stores were exempt from overtime. However, newly hired employees were not. It was found, according to an investigation by the US Department of Labor, that new hires were treated the same as existing employees.
They shouldn't have…
Assistant store managers were required to work off-clock during openings and closings early in the morning and late at night, respectively. Staff shortages were also occasions when assistant store managers were called upon to take up the slack, without fair compensation. As the investigation was first conducted by the San Francisco District Office of the Labor Department's Wage and Hour Division, the violations are rooted in California labor code.
Levi Strauss Co. is based in San Francisco.
"Misclassification of employees has serious and adverse consequences for employees, as well as for corporations," said Secretary of Labor Hilda L. Solis. "When violations of federal labor laws are discovered, this department will take appropriate action to ensure that workers receive the wages they deserve."
Even though the issue affects employees across the country, the investigation also uncovered misclassifications at Levi Strauss headquarters in California??"although it is was not clear why employees with more tenure were exempt from overtime, whereas more recent hires were not.
As a result of the California and labor law investigation, Levi Strauss agreed to pay back wages for a period covering two years to affected employees. The company also made a commitment to undertake an upgrade of its systems governing tracking time and attendance.
Levi Strauss has operations in Santa Clara, and thus is bound by California labor employment law.
Misclassification and Mismanagement under California Labor Law
Hobby Lobby, the home décor chain with about 400 stores nationwide, hired Edward as a co-manager (not assistant manager). He was promised a five-day workweek, about 55 hours per week and a salary for $900 per week. Instead, Edward says that for the first six months, he worked six days per week including Sundays and 12 hours per day - in other words, 70 hours per week. Wait, it gets worse…
"Then they transferred me to Las Vegas where I worked from 6:30 am 'til 7:00 pm or even 8:30 pm when we closed, 6 days a week," says Edward. "They send out this locked schedule to co-managers from the Hobby Lobby corporate office but you never work those hours. All I did was labor intensive work - I unloaded trucks and loaded boxes; I did all the stocking and merchandising and learned a small amount of management - probably about 10 percent."
(According to the California labor code, assistant store managers working on salary over 40 hours a week and who perform non-exempt duties such as those described by Edward could be entitled to overtime pay.)
Still, in Nevada, Edward was asked if he would go back to California for seven weeks to help open a new Hobby Lobby store. “I would be helping the store manager with hiring and managerial tasks so I accepted the job,” Edward explains. “Instead, I unloaded trucks, and did 80 percent of the labor, 12 hours per day, 6 days per week. (The manager told me that he couldn’t work more than 50 percent of manual labor duties; instead he had to delegate the labor to me, otherwise he would be owed overtime!)
“At the end of the seventh week, they hired two co-managers to replace me but they didn’t call them co-managers. In the state of California you have to call them another name because if you work more than 40 hours per week, you have to be paid time and a half. This way, the company didn’t have to pay salary or overtime.
“Two employees with an hourly wage and no overtime was a better deal for the company than having me on salary without getting paid overtime, because the company knew that, according to California labor law, they would have had to pay me overtime.
“When I got back to Las Vegas I asked why I wasn’t paid overtime in California: I was supposed to be paid hourly because I was doing manual labor. My boss told me to send the head office a letter stating how much money in overtime they owed me, which I did. I figured they owed me $4,000. But they replied that they owed me nothing because I was exempt and I was hired through Nevada; apparently working in California didn’t count.
"I find this very hard to believe and I'm sure an attorney will confirm that Hobby Lobby has violated another California labor law.
“Interestingly, I worked in the State of California about 10 years ago as an assistant manager for a grocery store called ‘Smart and Final.’ A cass action was filed against them and the company paid overtime compensation owed to assistant managers. I received a check in the mail about five years ago - a very pleasant surprise - for more than $5,000.”
Edward was recently terminated from Hobby Lobby. According to the online legal resource tool law29.com, a nationwide investigation is underway regarding the company's alleged violations of federal law for failure to pay its Co-Managers overtime pay.
“If it was a good company and they stood behind me, I would have stayed longer,” says Edward, “but since they have lied and terminated me, I am in the process of finding an attorney who will help me get compensated for what is owed to me.”
California Labor Law: C&S Grocers Class Action—Again
C&S has to be one of the worst companies in the United States to work for. This latest class-action suit alleges that the second-largest wholesale grocery store supplier in the United States misclassified warehouse supervisors as exempt to avoid paying overtime, did not allow employees to take meal and rest breaks or pay them for these missed breaks, failed to pay them minimum wages, and failed to keep accurate payroll records and supply accurate wage statements.
Not only has C&S allegedly failed to pay its employees overtime pay, it has also been accused of punishing workers for mistakes on the job by decreasing their wages! Yes, this practice apparently takes place in the US today and not in Siberia during the 20th century. Pay decrease is prohibited under the California labor law and in every state where C&S operates.
C&S must have deep pockets, or believe it is above the law, or both: a nationwide class action in 2006 was filed by C&S employees seeking $750 million in unpaid wages and overtime under the Federal Fair Labor Standards Act and state labor laws in each of the 14 states, including California, where the company operates warehouses. This suit applied to workers who have been employed by C&S since 2000, with identical violations.
According to attorneys who represented the plaintiffs in 2006, C&S “violates federal and state laws by illegally chopping workers’ wages as punishment for mistakes on the job; failing to pay overtime; failing to pay for time worked in excess of 10 hours; failing to pay employees their agreed hourly rates; and encouraging employees to work off-the-clock and through lunch without pay.”
A lead attorney for the C&S employees said that “C&S punishes an entire team of workers for one person’s mistake. C&S employees work in 4-8 member ‘selection’ teams. If one team member makes an error, for example selecting a case of apple juice instead of grape juice, C&S collectively punishes everyone on that team and cuts their pay.”
Meanwhile, the company projected record revenues of $18 billion for 2006, thanks to their employees for making profits possible.
The Sacramento suit was brought on behalf of warehouse supervisors or employees who held similar job titles and/or performed similar job duties, and who worked for C&S in California from February 3, 2007, to the present. About 20,000 people are employed by C&S nationwide. In 2006, Forbes magazine listed it as the seventh-largest privately held company in the United States. Shame on you, C&S.
Is Pharma Rep Overtime Debate Destined for US Supreme Court?
Law Suits are often the only way to settle it. And sometimes it settles nothing.
Pharmalot reports that a federal appeals court ruling from Valentine's Day affirmed a lower court ruling in November of last year that two GlaxoSmithKline sales reps who claimed to be owed overtime pay are, in the opinion of the court, exempt from the relevant provisions of the Fair Labor Standards Act (FLSA).
However, those rulings contradict that of the US Court of Appeals last summer, which ruled that plaintiffs working for Novartis are entitled to overtime. The latter ruling seems to jive with a US Department of Labor brief that supports overtime pay for pharmacy reps and makes a case for it.
Under federal law, employers are required to compensate employees for all hours worked above 40 in any given week, with overtime pay calculated according to the given rate. The only time this law does not apply is when an FLSA exception applies.
Defendants in the pharma overtime lawsuit argue that the FLSA compensation exemption requirement does not apply to employees who work outside the company as sales reps and account executives in a capacity for obtaining orders and sales contracts.
Drug companies say that is indeed the case. The plaintiffs in this particular lawsuit, however, argued that a direct sale does not occur given that sales reps are calling on doctors. While the doctor prescribes the medications, the doctor isn't the one selling the medication. The latter are purchased by patients and hospitals, often from wholesalers.
However, the Ninth Circuit Court noted that the plaintiff's assertions failed to take into account the realities and the heavily regulated nature of the pharmaceutical industry. And that even though drugs are not actually sold to and therefore purchased by doctors, the "sale" exists as only it can exist in the drug industry.
Sales reps "are driven by their own ambition and rewarded with commissions when their efforts generate new sales," the Ninth Circuit Court ruled. "They receive their commissions in lieu of overtime and enjoy a largely autonomous worklife outside of an office. The pharmaceutical industry's representatives�detail men and women�share many more similarities than differences with their colleagues in other sales fields, and we hold that they are exempt from the FLSA overtime-pay requirement."
Legal watchers are looking for this issue to go all the way to the Supreme Court.
Judge Throws Out California Labor Law Class Action
The lawsuit was launched on behalf of the California Correctional Peace Officers Association (CCPOA), which had taken issue with self-directed furloughs - arguing that they violated the Fair Labor Standards Act (FLSA).
In his California labor code ruling, it appeared that US District Court Judge Vaughn Walker did not agree.
The State of California, with Arnold Schwarzenegger in office, resorted to furloughs in an effort to improve the state's coffers. In the midst of a financial crisis, the Office of the Governor directed that employees of the state in every sector would be required to take a certain number of unpaid days off in any given year, which would translate to savings for the State or California.
Various groups took issue with the directive, citing alleged violations of California labor employment law, federal laws and FLSA. Specifically, CCPOA took the position that cutting employee pay but deferring the actual furlough time violated the law because employees aren't paid in full for hours worked within a given pay cycle.
The plaintiffs also held that time worked on an unpaid furlough day should be calculated in figuring overtime and that the state hadn't kept adequate payroll records.
The judge, in his ruling just one day after hearing arguments, did not agree.
"The furlough program, while perhaps convoluted in execution, ensures that plaintiffs are compensated for all hours worked during the pay period," Walker wrote. "Because plaintiffs are compensated for all hours worked, and because that compensation exceeds federal minimum standards, plaintiffs claim of violation of FSLA fails."
As for violations with regard to record keeping under California sate labor laws, the judge noted that the law allows for only the secretary of labor to sue for alleged violations of record keeping.
The Bee noted that the California employment labor law case applied only to the members of Bargaining Unit Six of the CCPOA.
California Employer Sued for California Labor Law Violations
The complaint was filed in Superior Court of California, County of Napa.
According to court records, lead plaintiff Michael Evans worked for Johnson Controls in California. The plaintiff alleges that the Wisconsin-based corporation variously allowed him to work in excess of eight hours per day and/or 40 hours per week, and more than seven days straight without overtime pay - an allegation of conduct that flies in the face of the California labor code.
The plaintiff alleges that he also, on occasion, worked in excess of 12 hours in one day without being compensated according to an elevated overtime formula normally expected for toiling that many hours - specifically, two times his normal rate of pay.
Meal breaks were also an issue, according to Evans. He claims to have worked in excess of five hours in a day without provision for a proper meal break. The plaintiff also alleges that the defendant failed to compensate him for those missed meal periods in accordance with California labor employment law.
His class-action complaint also alleges the employer failed to maintain and complete accurate time and pay records, and allowed the plaintiff to pay business expenses during the regular course of his duties, but was not reimbursed.
When his employment was terminated, Evans alleges that he was not paid all wages owed to him at he time of his termination, nor was he paid wages owed for unused vested vacation according to the vacation policy of Johnson Controls Inc.
The defendant's alleged conduct is in violation of California state labor laws. Evans is suing for damages and his various legal costs.
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