US Airways Requests Rejection of Overtime Claims

Legal representation for US Airways in the California class action overtime lawsuit filed in 2012 requested that the federal judge hearing the case on January 13th, 2017 reject overtime claims brought by the certified class of US Airways fleet service agents. The company claims that the unionized workers’ collective bargaining agreement (CBA) as well as the Railroad Labor Act (RLA) makes the workers involved in the suit exempt from some state labor laws.

The attorney argued that it is not uncommon for state legislatures to remove RLA collective bargaining agreements because of interstate commerce concerns and that these concerns are often applicable to flight crews. In a January 26th motion, it was requested that the court consider legislative history materials in regards to Assembly Bill 60 concerning overtime exemptions. It was argued that the legislative history does not support the plaintiffs’ arguments that the collective bargaining exemption in the California Labor Code is in conflict with the RLA exemption. Legal Representation pointed out the plain language of the two statutes failing to indicate a conflict.

The judge will need to rule on an October 2016 motion filed by US Airways legal counsel to decertify “grace period” fleet workers that were previously certified in 2014. These workers claimed they should have received payment for work during “downtime” required between clocking in and clocking out. The company stated that workers were free to do as they wished during the unpaid time and that in some cases they had enough time to fulfill preparatory duties on the clock. The judge found that discovery suggested that requests for compensation in regards to putting on gear (“donning and doffing”) were handled differently depending on the airport. The judge also questioned the difference between the estimated time for “donning and doffing” as offered by the opposing attorneys. Plaintiffs indicate five minutes is necessary, but the judge questioned the accuracy of the estimate. US Airways attorneys suggest the task can be completed in less than a minute.

If you have questions or concerns regarding off the clock work or unpaid overtime, please get in touch with an experienced southern California employment law attorney at Blumenthal, Nordrehaug & Bhowmik.

Minimum Wage Lawsuit Vs. California Club Filed by Exotic Dancers

Two former exotic dancers out of San Francisco recently joined the growing ranks of dancers who are pursuing litigation against California clubs allegedly in violation of labor law. Elena Pera and Sarah Murphy filed their California minimum wage lawsuit on January 11, 2017 listing S.A.W. Entertainment LTD as the defendant in the case. In this case, the company, doing business as Condor Gentleman’s Club, allegedly filed to provide legal minimum wage to exotic dancers as a result of misclassification as independent contractors rather than employees.

Pera and Murphy seek damages and restitution on behalf of themselves and other exotic dancers in similar positions. The plaintiffs filed the minimum wage lawsuit in the U.S. District Court for the Northern District of California. Legal counsel involved in the case stated that dozens of cases have been handled with similar claims and circumstances in the last four years, that there is currently a nationwide push for this type of case, and that virtually ever court that has decided similar cases held that the exotic dancers were employees – not independent contractors.

2011: Courts handed down a decision favoring a group of exotic dancers out of Georgia claiming they should be classified as employees and not independent contractors (Clincy v. Galardi South Enterprises operating as Club Onyx). This ruling was designated as a “road map” for cases involving dancers and clubs. It included a number of definitions of factors determining if a worker is, in fact, an employee in accordance with the Fair Labor Standards Act (FLSA).

Legal trends indicate that the law will support the argument that the girls are employees rather than independent contactors. Categorization as employees would entitle them to minimum wage, overtime payment, and liquidated damages due to the misclassification.

Due to the legal trend, more dancers are coming forward with lawsuits against their clubs and dancing establishments across the country mainly citing misclassification as well as other general labor-law violations.

If you have questions regarding misclassification or unpaid overtime, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Social Media Giant, Snapchat, Facing California Wrongful Termination Lawsuit

There seems to be a tech company constantly in the news facing a lawsuit – recent news has given the spotlight to the social media giant, Snapchat. The plaintiff in the case alleges wrongful termination.

The plaintiff, Anthony Pompliano, claims he was fired after alerting supervisors to potential misrepresentation on the part of the company. Pompliano filed the California wrongful termination lawsuit in January 2017. He claims that Snapchat intentionally misled their investors in order to inflate Snapchat’s valuation prior to its initial public offering (IPO). In addition, Pompliano alleges that Snapchat has actively sought to destroy his career since the termination.

According to news reports, Pompliano filed his California wrongful termination lawsuit against Snapchat alleging that he advised his supervisors on the job of Snapchat’s activity, mainly alleged misrepresentation of growth metrics. Snapchat hired Pompliano in August 2015. Prior to working with Snapchat, Pompliano worked for Facebook. Pompliano alleges that he was given false information during the hiring process that resulted in him taking a job with Snapchat. The company has a fierce rivalry with Pompliano’s previous employer, Facebook, another social media giant that has been on the seen years longer than the relatively new Snapchat. Pompliano claims that Snapchat fraudulently enticed him away from his position with Facebook to run Snapchat’s new user growth and engagement team. After working for Snapchat for only three weeks, it became apparent to Pompliano that Snapchat has falsely represented the Company’s growth, among other things.

In court documents, Pompliano states that during his time with Snapchat he learned that the metrics he was provided during his hiring process were false. Upon realizing this, Pompliano notified the Snapchat Vice President of Finance. Allegedly, some of the company’s superiors agreed with Pompliano, but afterward he was fired. Pompliano claims that Snapchat only hired him in order to obtain Facebook’s proprietary information. He further claims that he did not breach any agreements that he had with his previous employer, Facebook.

Pompliano claims he was fired because Snapchat accurately perceived that he would not turn a blind eye to continued misrepresentations of Company data to the public, advertisers, prospective employees, investors, etc. In addition to terminating his employment, Pompliano claims that Snapchat sought to destroy his career and his professional reputation through false misrepresentations about his termination. While Snapchat (and their maker, Snap Inc.) claim the allegations have on merit, Pompliano’s suit seeks to prevent the company from misrepresenting why his was fired.

If you have questions about wrongful termination or what constitutes a wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

CNN Faces Discrimination Lawsuit from Former Employee

Stanley Wilson, a former writer and producer for CNN will pursue racial discrimination and retaliation claims after being allegedly fired for a plagiarism incident. Wilson, a longtime employee for CNN allegedly failed to attribute credit to parts of a news piece that never ran. In the wrongful termination lawsuit, Wilson claims that he was only promoted once during his 13 years of work with the company and alleges that the failure to receive appropriate promotion on the job was due to the fact that he is African-American.

Wilson’s suit is filed under California law for race, age, ancestry, disability discrimination and retaliation. CNN already attempted to dismiss Wilson’s claims through the use of the “anti-SLAPP law” (strategic lawsuit against public participation). According to the California anti-SLAPP law, when a lawsuit infringes upon a party’s right to freedom of speech or participation in the legal process, the party can request the court dismiss the case. The court ruled that the anti-SLAPP law did not apply in Wilson’s suit – even after CNN presented argument that allowing Wilson to sue over his termination would inhibit CNN’s free speech rights for public interest.

Many see this ruling as a victory for workers making discrimination claims – particular in the entertainment and media industries. Employers in these fields are sometimes negatively affected by their employer’s abuse of the anti-SLAPP law and the findings in this case indicate they can be protected when they file a lawsuit alleging discrimination on the job. In effect, this ruling is the court reminding the industry and the public itself that discrimination is not the same as free speech.

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

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.