California Judge Certifies Class of Kaiser Traveling Nurses

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U.S. Magistrate Judge Joseph Spero certified a class of Kaiser Foundation traveling nurses after the caregivers alleged they were shorted on overtime pay, denied required meal breaks and rest periods, etc. The judge granted class certification after the nurses raised valid issues about broad policies that were applicable to all class members.

The judge granted a bid to certify a class of R.N.’s and licensed practical nurses who were all employed by AMN Healthcare Inc. The health care staffing contractor staffed Kaiser Foundation hospitals with nurses in California. The suit included numerous allegations of wage and hour violations of California Labor Law.

The judge concluded that the plaintiffs met the requirements for both commonality and predominance prior to granting class certification. Judge Spero said the nurses’ theories that the defendants in the case discouraged overtime and didn’t adequately prevent underreporting raised a number of common issues that were susceptible to common proof.

In reaching this conclusion, Judge Spero rejected a number of arguments presented by Kaiser, the defendant in the case, who was arguing against class certification: evidence of minor variations in how the company policies were implemented in various facilities and that potentially removed the commonality of issues regarding the nurses’ overtime payment.

When there is evidence of a common business policy that is applicable to all members of a class with concerns to the payment of overtime, and all the class members can be said to share the same core duties that tend to routinely lead to unscheduled overtime, the judge argued that some class members who did not find themselves working unscheduled overtime or who were provided adequate compensation for the overtime hours was not sufficient to defeat predominance. Based on this logic, the court found that the common issues predominate over individualized inquiries in consideration of the overtime claims being presented by the plaintiffs.

The Kaiser nurses’ suit was removed to federal court in early 2016. The original lawsuit alleged that the Defendant suppressed overtime by advising their traveling nurses that it wasn’t permitted and that they further discouraged overtime by keeping an over-difficult overtime approval process in place. The plaintiffs also alleged that they were not provided with the required meal breaks and rest periods. This was accomplished through a number of different policies the company implemented.

In addition to AMN Healthcare, Kaiser Foundation Hospitals, Southern California Permanente Medical Group Inc. and the Permanente Medical Group Inc. were also named as defendants. All are Kaiser entities.

If you have questions regarding proper meal breaks and rest periods or if you need to find out what the legal requirements are for overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Proposed Class Action Against Sally’s Beauty Supply

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An ex-Sally Beauty Supply LLC employee, Rosie Nance, filed a proposed class action against the company in Florida federal court. Nance claims she was not provided with fair overtime pay despite regularly working more than 40 hours per week, including bank deposits conducted on her lunch breaks.

Nance filed the Fair Labor Standards Act (FLSA) lawsuit in July including allegations that from April 2015 through February 2018, she was not compensated by Sally Beauty Supply at the state-mandated time and a half for extra hours she worked over 40 per week. She filed suit on behalf of herself and other nonexempt employees at the company in similar positions.

Nance was employed by Sally Beauty Supply from February 2006 through February 2018. According to the filed complaint, she was employed to provide customer service at retail outlets.

Nance claims in the complaint that while she was required to perform off the clock work by making bank deposits on behalf of the company during her lunch breaks, she was not provided payment as required by labor law. In the suit she specifically stated that the work was “directly essential” to the company and its successful business practices.

Additional claims were lodged by Nance in the complaint, including: the company failed to maintain proper time records, and the company failed to apprise her of her rights under FLSA.

Nance filed suit to seek back overtime pay at the standard rate as required by law, and additional damages and attorneys’ fees as necessary. Sally Beauty Supply is not the only national retailer facing claims of off the clock work due to lunch break bank deposits. T-Mobile, Dollar Tree, and Children’s Place Retail Stores Inc. are all facing similar claims.

If you have questions regarding what constitutes off-the-clock work or if you feel you aren’t being paid overtime as required by law, please get in touch with one of the California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Changes to a $2M Settlement Between Costco and Class of Drivers

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A California federal judge, U.S. District Judge Cathy Ann Bencivengo, granted preliminary approval after changes to the $2 million settlement between Costco and the proposed class of truck drivers while holding on to lingering concerns about the class counsel’s representation. The class of truck drivers originally alleged they were denied proper meal breaks and overtime pay.

The updated settlement agreement made adjustments to accommodate most of the issues that led to it being denied preliminary approval to the deal twice, but the judge still questioned whether or not the proposed class counsel was acting in the best interest of the drivers and whether or not the $2 million settlement amount/deal was a fair one.

One reason the judge first denied approval to the deal was that members of the class were required to release their FLSA claims. Proposed class counsel William Turley responded that is was okay that the drivers’ FLSA claims were dropped because they were basically worthless. In the updated settlement deal the drivers are split into a Rule 23 class and an FLSA collective that any drivers who wish to can opt in to. The Rule 23 settlement is estimated at $1,320,750. The FLSA settlement is estimated at $146,750. The settlement amounts clearly show that Turley’s argument that the FLSA claims were basically worthless was wrong. This situation led the judge to question Mr. Turley’s motivation for the false statement and the potential that he may have sought to keep the funds himself through an excessive attorney fee request. The judge also questioned Turley’s credibility in identifying the settlement amount as “fair.”

After the judge granted preliminary approval, she made it clear that doing so would not keep her from revisiting the questions she still had about the case during the hearing seeking final approval.

Unpaid overtime is one of the most common concerns in the American workforce. If you have concerns about unpaid overtime or if you are misclassified as exempt, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

$5M Deal to End California Truck Drivers’ Overtime Suit Against PepsiCo

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The proposed class of PepsiCo Inc. truck drivers requested preliminary approval from a California federal court for a $5 million settlement that, if approved, would resolve allegations leveled at PepsiCo by the drivers. Allegations against the soda giant include: failure to pay overtime, failure to provide meal and rest breaks, and failure to reimburse business expenses. All the allegations are in violation of both state and federal labor law.

Lead plaintiff, Nathaniel Helton, argued in the motion for preliminary settlement approval that the settlement is both fair and reasonable. If approved, the settlement would mean $1,988 to each of the approximately 1,800 class members who drove for one of the PepsiCo subsidiaries included in the suit.

If the settlement is approved by the court, it would mean an end to the proposed class action that was filed by Helton in state court against PepsiCo. And subsidiaries in early 2017. According to the lawsuit the drivers were required to monitor their vehicles, have their phones with them during meal break and other breaks, and in doing so, the company denied them legally mandated breaks. This also means that the company failed to pay overtime as required by labor law.

The plaintiffs in the case also claim that the company failed to cover business expenses for the truck drivers. For instance, paying for electricity required to charge phones drivers were required to keep on them, and final wages for drivers who were terminated or quit their position.

The Defendant, PepsiCo, denied the allegations. They also removed the lawsuit to federal court in spring of 2017. When the suit was moved to federal court, Helton, the plaintiff, amended the complaint to include additional claims under the FLSA and Private Attorneys General Act. Following two failed attempts at mediation, the parties involved reached a settlement in May. The deal would mean class counsel would receive $1.25 million (25% of the settlement), and no more than $65,000 in expenses. Helton would receive $7,500 as an incentive payment. The settlement also includes a $100,000 payment to resolve the PAGA claim (75% would go to the California Labor and Workforce Development Agency and 25% would go to the class’ fund).

If you have questions about overtime violations or other violations of California labor law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Employee Who Went Viral Flipping Off Trump Loses Unfair Firing Claim

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Juli Briskman, a marketing analyst, claims she was illegally forced to quit her job because a picture of her flipping off President Trump’s motorcade when viral. A Virginia state judge tossed her claim of unfair firing but preserved her second claim that her former employer cut her severance pay short.

Judge Penney Azcarate granted Briskman’s former employer, Akima LLC’s, motion for a demurrer on Briskman’s unfair termination claim from the bench. The Judge also rejected the company’s claims that it did not actually agree to pay Briskman four weeks severance as she claims.

Briskman’s legal representation stated that the judge outlined where there were deficiencies in the plaintiff’s argument that she qualifies for a public-policy exemption from at-will employment doctrine of the state of Virginia. Briskman and her legal representation see it as a chance to shore up the claim. Briskman’s attorneys plan to take the opportunity to review the complaint, and make amendments so the complaint may satisfy the court.

According to the original complaint, filed by Briskman in April, she was forced to quit her job because the company feared the notoriety caused by the viral photo could cost Akima LLC government contracts. The infamous photo was taken by a photographer in October. Briskman was on a weekend bike ride when President Trump’s motorcade went by and she flipped it off. At first, Briskman was not identified, but later she updated her social media profiles with the image. The picture was featured a few days later on both The Tonight Show and Jimmy Fallon. At this point, Akima forced Briskman to resign for fear of negative reprisals against the company due to the notoriety of the photo.

Akima is a private company in Virginia where state law allows businesses to fire most employees for any reason. But Briskman argues that the company was in violation of the state’s at-will employment doctrine because Akima fired her as a result of fear that they could face retaliation and lose government contracts. As it would be illegal for the government to punish the company for an employee’s political views, Briskman claims that the company was barred from firing her for the situation. Briskman also claims Akima breached her employment contract when they promised four weeks of severance upon her resignation and then only paid her for two.

If you have questions about wrongful termination or other need to discuss other unfair firing claims, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

VW’s Rebranding Effort Allegedly Included Policy to Purge Older Workers

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In response to a 2015 diesel emissions scandal, Volkswagen AG instituted a rebranding strategy. According to a 53-year old worker, Jonathan Manlove, the rebranding strategy allegedly included a policy to remove older employees from the company. The worker claiming age discrimination filed a collective action in Tennessee federal court.

Manlove claimed in the complaint that VW’s attempt to create a distraction from the diesel emissions scandal fallout or what has become known as the Dieselgate scandal with two different rebranding labor campaigns included clear discrimination violations. Particularly, the company planned to get rid of management positions that were filled by “older” employees. The plaintiff alleged that the new policy was in clear violation of U.S. age discrimination laws.

The rebranding strategies were implemented in 2016 with the twin policies: TRANSFORM 2025+ and Pact for the Future. They were implemented globally. According to American law, VW’s policy of purging older employees from their management ranks is illegal age discrimination.

The plaintiff stated in the complaint that VW’s own press releases on their new strategies made clear their intentions to eliminate older employees. The company openly stated that they would be using early retirements and “natural fluctuations” in order to reach their rebranding strategy goals to become “slimmer, leaner and younger.” 

Manlove filed suit on behalf of VW employees in the United States of America over the age of 50. Manlove worked as a VW assistant manager in logistics before he was demoted in June 2017. The demotion came only days after the VW announcement that the company would be creating a younger workforce at management levels.

VW advised Manlove he had one hear to find and obtain another assistant manager position at the company before the move would become a permanent demotion. Yet somehow Manlove’s positive performance reviews did nothing to keep him from being assigned to remain in the demoted position by VW Human Resources as well as being advised he was not allowed to apply for openings at the company.

According to the complaint, many others were affected. Since the announcement of the policy change, six employees under the age of 30 were promoted to assistant manager positions at the logistics department of VW at the Chattanooga, Tennessee manufacturing facility where Manlove was employed. At the same time, only two over 50 employees retained their assistant manager positions.

If you are experiencing age discrimination in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Alleged Gender Bias Amid Jones Day Fraternity Culture Leads to Lawsuit

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A former partner at Jones Day sued the firm recently alleging that they treat women as “second class citizens” and indulge in a fraternity culture with rampant gender bias. The gender bias lawsuit was filed in California court and outlines a workplace culture where men are given preferential treatment. The plaintiff further claims that she was fired for speaking out about the situation.

Wendy Moore, attorney and former partner at Jones Day firm, alleged that the firm promotes a “boy’s club” or what she frequently referred to as a fraternity culture. In said fraternity culture, the plaintiff claims that male partners hold the majority of management and other leaderships positions at the firm. She also claimed that male partners (and therefore the majority of the managers and others in leadership positions) provided more support and mentoring for other men at the firm. Women were not offered the same opportunities.

Allegedly, the firm discouraged attorneys from discussing pay rates. The plaintiff also claims that the firm relied on a subjective performance evaluation system the she claims favored male attorneys at the firm. The firm’s pay practices allegedly allowed Jones Day firm to pay females less than their male counterparts.

Moore, plaintiff in the case, claims that speaking about the boys’ club culture and the gender pay inequality led to workplace retaliation. She also claims that her discrimination complaints were not addressed. She claims that the firm eventually terminated her stating they had “cause,” despite the fact that Moore had a stellar client service record as well as recognition from outside sources for her high quality of work.

Moore started working at the firm in early 2013 as a partner – it was a lateral hire. She worked as an equity and executive compensation attorney out of the Jones Day Palo Alto, California office. In 2015, she was promoted to hiring partner for the Silicon Valley and San Francisco offices. She received high praise for recruiting one of the “best classes Jones Day (NorCal) ever had,” according to Moore’s complaint. She claims that despite being a partner at Jones Day, she was regularly paid less than male attorneys at the firm. In fact, according to the complaint, Moore was at one point paid less a male sixth-year associate even though she was a sixth-year partner at the time.

If you have questions regarding a gender bias workplace or if you are experiencing retaliation in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.