California Harassment Lawsuit Filed Against Wells Fargo

Diana Duenas-Brown worked at a California Wells Fargo location for 14 years. During 11 of those years she worked as the Branch Manager. On December 9, 2016, Duenas-Brown filed a lawsuit alleging wrongful termination and retaliation. Allegedly, Duenas-Brown reported wrongdoing at Wells Fargo and as a result, she was fired in obvious retaliation for her reporting of illegal activity. In addition, her Wells Fargo supervisors harassed her.

According to the record, Duenas-Brown was fired on March 16, 2015 following her report of illegal sales practices by co-workers (i.e. opening customer accounts and issuing credit cards without prior customer consent). After an investigation uncovered widespread wrongdoing on the part of its sales representatives, Wells Fargo faced sanctions.

Duenas-Brown states that after reporting the illegal activity to her supervisors at Wells Fargo, she was harassed. She received unwarranted discipline, endured hostile interrogations, and was given poor performance reviews. She was also demoted, and transferred and had her wages reduced. This all occurred in the ten months preceding her termination from Well Fargo.

According to the lawsuit, Duenas-Brown suffered financial loss, the loss of her employee benefits and the loss of expected advancement opportunities as a direct result of the actions of Wells Fargo in response to her report of illegal activity in practice at the bank.

In response to the lawsuit and the allegations included, Wells Fargo stated that they have a zero tolerance for retaliation against employees policy – including retaliation against employees who submit a report of wrongdoing. The allegations included in the Wells Fargo lawsuit could easily be viewed as harassment on the job, but the lawsuit officially claims wrongful termination and retaliation. 

Wells Fargo is also facing lawsuits from customers who allege that the bank opened up face accounts/credit cards in their name without their consent. Some of the customers claim that the illegal action had a negative effect on their credit reports/scores. Wells Fargo has already paid $185 million in fines as a result of the illegal activity.

According to California employment law, employers must undergo training intended to prevent abusive conduct against employees, such as verbal abuse, physical abuse, derogatory remarks, etc. Abusive conduct can be defined as any act that occurs repeatedly. The law does not actually ban abusive conduct, but it does require training intended to prevent it from occurring. Sexual harassment against employees and discrimination against specified protected groups are also prohibited under employment law.

If you have questions or concerns regarding discrimination or harassment in the workplace, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

FLSA Mercedes Dealer Suit Sees Second Reversal from 9th Circuit

The 9th Circuit again reversed a decision on the FLSA Mercedes Dealer suit alleging the a California Mercedes-Benz dealer is shorting their “service advisers” on overtime pay. They found that Congress never had intentions of exempting advisers from overtime pay. The panel of three judges based their findings on the “extensive legislative record” including amendments from 1966-1974. The record used for the basis of the panel’s findings constituted tens of thousands of pages that spanned close to two decades. In all of the data, there is barely a mention of service advisors. The few times they are mentioned, were connected in no way to concern regarding overtime pay.

Service advisers diagnose vehicle service and repairs and recommend additional work that, while not immediately necessary, would be beneficial for the car. A group of these employees filed suit in 2012 listing allegations that Encino Motorcars LLC was in violation of FLSA legislation because service advisers were paid strictly on commission even though their collective hours for the week on average amounted to more than the legal standard work of 40 hours.

The Mercedes-Benz dealership urged the court to dismiss the claims made by service advisers stating that the FLSA exemption for salesmen, mechanics, partsmen, etc. (whose primary functions are to sell or service vehicles) also applied to service advisers. The plaintiffs’ FLSA overtime and state-law claims were dismissed by district court in January 2013.

In March 2015, the 9th Circuit reversed the district court’s dismissal, citing DOL regulations that state that only workers who sell cars were to be designated as salesmen and that only workers who personally provided service to cars were to be designated as mechanics. The 9th Circuit found the definitions to be reasonable and in accordance with the U.S. Supreme Court’s Chevron standard, this in spite of the Fourth and Fifth Circuits so far declining to adopt the DOL’s definitions.

In June 2016, the Supreme Court justices voted 6-2 to vacate the appellate ruling. They ordered the 9th Circuit to reconsider the matter without taking into consideration the DOL rules/definitions as they were issued in 2011 and were not offered alongside appropriate explanation that would enable them to be used as guidance in this type of dispute.

In August 2016, the DOL secretary presented arguments that the 9th Circuit got it right when they originally reversed the district court’s dismissal of the plaintiffs’ claims. They argued that the FLSA explicitly exempts three occupations in the dealership setting from overtime pay and overtime requirements and that according the plain language of the section being applied to the case, the statute does not include (or therefore apply) to service advisers. Encino Motorcars continued to stand behind arguments that the court should hold that service advisers are exempt like its sister circuits instead of deferring to the DOL’s redefinition of “salesman.”

After reconsidering the matter, the 9th Circuit again reversed the district court’s dismissal and remanded the FLSA claims and related state claims, finding that even without considering the DOL definitions, the plain language of the law indicates Congress did not intend for service advisers to be exempt from overtime requirements/overtime compensation. In addition, it was noted that even if the text of the FLSA statute were decidedly ambiguous, the legislative history of the FLSA and amendments confirm Congress’s intentions for overtime exemptions and the list did not include service advisers. During discussions, Congress’ silence regarding exempting service advisers was significant and taken as a strong suggestion that they not be exempt to overtime pay.

If you have questions regarding overtime pay or exemptions from overtime pay, please contact an experienced southern California employment law attorney at Blumenthal, Nordrehaug & Bhowmik. 

Versace Allegedly Employed a Code Designed to Identify Black Shoppers

One of Versace’s former employees, Christopher Sampino, has come forward to file suit against the company alleging state law violations, i.e. unfair business practices, wrongful termination, racial discrimination, etc. The lawsuit claims that the Italian design house uses a secret “black code” that alerts staff and security when there is a black shopper in one of their retail locations.

Sampino’s complaint was filed in Alameda County Superior Court and included allegations that he was discriminated against by Versace for being of mixed race. He was fired after just two weeks at the Versace outlet store in Pleasanton, California. In the complaint, Sampino alleges that new-employee training included an unnamed manger advising him regarding the “D410 Code.” The code is used for labeling black clothing, but it is also used in a casual manner whenever a black person enters the Versace store. When he was advised of the use of the code, the manager explained that it was used to alert Versace workers that a “black person is in the store.”

Sampino also claims that during his time with Versace he was harassed and eventually terminated after informing the store manager that he was, in fact, black. According to Sampino, he met and/or exceeded all expectations in connection with his Versace employment, but was fired after two weeks because he did not “understand luxury” and did not “know the luxury life.” Versace also advised Sampino that his dismissal was due to his lack of experiencing a luxury life. He was advised to quit in order to make the paperwork easier.

Labor Violation Allegations Listed in Sampino’s Suit Include:

1. Not being paid for time worked.

2. Not receiving required rest periods.

3. Being wrongfully terminated.

Sampino seeks class action certification. If the proposed class action lawsuit is certified by the court, other employees and/or former employees of Versace who found themselves in similar situations and were subjected to discriminatory treatment by Versace in the U.S. during the same time frame would be able to join in the case and share in any settlement amounts.

If you have been wrongfully terminated or if you have questions regarding the definition of wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

AT&T Executive Fired Over Racist Texts Files Suit

Aaron Slator, AT&T’s former Head of Video Content and Advertising Sales filed suit against the company for breaching his employment contract and for defamation after his 2015 firing. The termination occurred during the regulatory review of AT&T’s $49 billion acquisition of DirecTV.  Legal counsel for the plaintiff filed the lawsuit in Los Angeles County court arguing that the former executive was cleared during the investigation of allegedly racist text messages discovered on his phone by his executive assistance in 2013. Slator was fired over the incident in 2015 after another executive assistant filed a discrimination and harassment lawsuit. 

Slator claims that AT&T advised him of their thorough investigation of the 2013 incident and assured him his job was secure. Two years later Slator was fired without any new evidence, new allegations, or new investigations into the matter. AT&T defends its actions insisting that diversity and inclusion are core values that are important to the company. They feel strongly about the situation and stand behind their termination of Slator and feel that his allegations are baseless and will result in a dismissal.

Slator’s firing made headlines across the country. He was the head of content acquisition and advertising for AT&T’s cable TV, broadband Internet, and wireless Internet services. He was also involved in the DirecTV acquisition, approved by the FCC and completed in 2015. In the lawsuit, Slator alleges that his executive assistant filed a complaint with the Equal Employment Opportunity Commission in 2013 alleging rampant racial discrimination by AT&T executives (listing Slator by name). Allegations included a detailed description of the racist text messages found on Slator’s phone. But AT&T’s internal investigation concluded that there was no discrimination.

Slator claims that he offered to resign, but was assured by AT&T that doing so was not necessary. He completed advisory training with an equal employment opportunity consultant in 2014. Yet the original allegations from the 2013 incident resurfaced in the 2015 lawsuit filed by a different executive assistant. Simultaneously, AT&T was sued by a unit of Byron Allen’s Entertainment Studios for alleged discrimination against African-American-owned media companies. Slator’s legal counsel points to the intense public and legal scrutiny resulting from this situation when claiming that AT&T needed someone to take the blame and that the someone became Slator. The executive assistant’s claims were dismissed in California Superior Court, but this did not occur until months after Slator’s termination.

If you have been wrongfully terminated or if you know someone who has been wrongfully terminated, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Recent Study Indicates Transgender Discrimination in the Workplace is Prevalent

In a recent study, 2015 report from the Center for American Progress and the Movement Advancement Project, almost 80% of American transgender workers claimed they had experienced discrimination in the workplace or during the employment application process. From general discrimination to harassment to mistreatment, this demographic is facing a substantial challenge on the job.

Expert and author, Lee Schubert, indicated that it is not uncommon for employers or co-workers to present transgender employees with rude and inappropriate questions, comments, etc. Common discriminatory questions/topics that transgenders face include: questions about transition surgery, questions about sexuality, etc Many employers face difficulty when attempting to appropriately refer to their transgender employees, i.e. which pronoun to use – he or she. Some transgender employees do not want to be referred to as either he or she, but prefer they as they may not identify with either male female. Employers can find it confusing – it’s new territory in many cases. But the challenges this causes transgender employees to face are very real. In fact, the recent 2015 report noted above concludes that employment discrimination is a fact of life for trans people and that it comes with serious economic consequences.

In the study, “Paying an Unfair Price: The Financial Penalty for Being Transgender,” it states that up to 47% of trans workers report being denied employment unfairly. 78% report harassment, mistreatment and/or discrimination on the job.

Tips for appropriately interacting and/or managing trans workers are actually the same tips that apply to interactions with all workers in a workplace: demonstrate respect, recognize that there is a difference between personal values and community values of a workplace and act professionally, and be respectful of coworkers’ privacy and confidentiality.

If you have questions or concerns about employment discrimination or transgender employment discrimination specifically, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Employees Claim California Nail Salon Regularly Stole Wages

A recent lawsuit claims that nail salon owners make a habit of mistreating their employees; specifically the suit claims that nail salons are stealing their employee’s wages. The suit was filed by four nail salon employees: Tuyet Mai Nguyen, Thu Hang Pham, Jenny Hoang, and Trinh Truong. The women sued the Tustin Nailspa in Orange, California claiming the company withheld their wages, deducted money from their paychecks for the use of salon supplies and equipment, and other labor code violations.

The plaintiffs have been employed at Tustin Nailspa for the last ten years. Over that course of time, the salon has had several different owners. The women claim the problems started when additional chairs were added in 2005. The owners wanted to recoup their investment and see the increased profits more quickly so they allegedly took it out on the employees. The employees’ hours were allegedly increased, they were underpaid, not compensated for overtime worked, forced to skip lunch, and did not receive any type of extra compensation for their additional work.

Tustin Nailspa has faced lawsuits before. In 2013, a former employee sued citing similar allegations. In response, an investigation was opened into the salon by the California Department of Industrial Relations, a Division of Labor Standard Enforcement. The investigation resulted in $28,000 in fines against the salon owners.

Allegations in the current suit were made against multiple owners as the malpractices are claimed to have spanned a time period during which ownership changed hands. Plaintiffs are seeking recompense from both current and former owners involved in the alleged violations. The owners, through legal representation have denied the allegations and claim the plaintiffs are simply disgruntled former employees.

The plaintiffs have experienced some trouble in their attempts to get the case to court. Their first attorney was removed due to a conflict and their second attorney was not fluent in Vietnamese so the women struggled to communicate their needs. The case is generating awareness of the challenges faced by immigrants attempting to navigate the American legal system as well as the potential for mistreatment of employees in nail salons across the country.

If you have questions about filing a lawsuit, California labor law or how to obtain overtime compensation, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

$16 Million PNC Settlement to Settle Wage Suit

In response to a collection of Fair Labor Standards Act claims alleged by a group of mortgage loan officers, PNC Bank NA has agreed to offer a $16 million settlement. Plaintiffs in the wage suit claimed that the company denied them overtime wages and proper commission payments. 17 PNC BANK mortgage loan officers, some former and some currently employed, brought the collective action. The loan officers claim that PNC used an improper process for the calculation of commissions and that the company did not allow the employees to report overtime hours even though work in addition to what would be recognized as full time was required of them to fulfill their job duties.

According to the documentation, the settlement agreement will apply to mortgage loan officers employed by PNC in California from August 7th, 2011 through January 4th, 2017, New York from April 4th, 2011 through January 4th, 2017 and any other state from August 7th, 2012 through January 4th, 2017. PNC also noted that the settlement agreement is not an admission of liability or damages, but a move to avoid the burdens of further litigation.

Key Developments in the Case:

December: It was recommended that plaintiffs’ motion for class certification regarding commission recapture claims be granted.

Mid-November: Plaintiffs’ motion to strike PNC’s exemption defense was granted. The motion argued that former employees were exempt according to FLSA.

November: Conditional certification of the collective action was granted by Judge Schwab due to indications of uniform, nationwide employment policies in place at PNC.

The lawsuit alleged that during the hiring process, the company offered a salary of $24,000 per year based on a 40-hour workweek. Once hired, many of the officers worked more than 40 hours in a week and sometimes took work home with them in order to “catch up.” The “overtime” was allegedly not compensated. The workers allege that PNC offered bonuses to managers who refused, reduced or prevented workers from accurately reporting their overtime hours. In fact, it is alleged that the Branch Managers’ own pay was reduced in direct relation to the amount of overtime wages that was paid out to mortgage loan officers at the branch.

Plaintiffs also claimed that PNC did not accurately track and record the hours worked by mortgage loan officers, mortgage loan officers were not compensated for all the hours they worked, the company did not accurately calculate overtime (by NOT applying a “weighted average” including salaries, commissions, etc.), that PNC illegally deducted overtime pay from commissions, and that PNC was in violation of minimum wage requirements.

If you have questions about minimum wage requirements, or the calculation of overtime pay in compliance with California Labor Law, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.