California Private Colleges and Universities May Be Forced to Move to a Time-Card System for Adjuncts

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Unless a legislative fix is successful, California's private colleges and universities may be forced to move to a time-card system for adjuncts. California legislation regarding the exempt status of adjunct workers has the backing of both the Association of Independent California Colleges and Universities and the Service Employees International Union – making this a rare instance in which colleges/universities and their adjuncts are in complete agreement. If the litigation is successful, it will prevent numerous private colleges and universities from requiring adjuncts to complete time cards as a means of avoiding labor law violations on overtime. California's public institutions are not affected as they are generally unionized.

Numerous colleges and universities facing faculty overtime violation lawsuits in recent years have reached settlement agreements with the plaintiffs. For example, Stanford University provided a $900,000 settlement in 2018 due to a class-action lawsuit on behalf of continuing studies program instructors. After attorney's fees, each adjunct involved was entitled to a partially taxable award of $1,417. Kaplan University also settled a similar suit. Other colleges and universities facing similar legal actions settled privately.

The implementation of a time-card system or other documentation of adjunct working hours was private colleges and universities' response to the new trend in employment law actions. Faculty groups insist that time cards are not a functional solution. Not to mention that requiring the completion of labor-style time cards of adjuncts could be viewed as insulting and wrong. Many adjuncts find the idea both inconvenient and humiliating.

The proposed litigation, AB-1466, would clarify when an adjunct at an independent institution would qualify as exempt under wage and hour law. The bill would specifically classify employees working in education as exempt if they offer credit-bearing instruction at independent colleges or universities, meet the existing legal test determining whether or not their work involves advanced knowledge, and they receive salary compensation (equivalent to no less than two times the state minimum wage at full-time employment or no less than two times the state minimum wage times the hours of service). The bill would also provide additional clarification (and a more generous definition) of hours of service.

If you need to discuss overtime pay violations, please call one of Blumenthal Nordrehaug Bhowmik De Blouw LLP's various locations: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago. We are ready to be your advocate as you seek resolution for labor law violations in the workplace.

Does a Recent FLSA Interpretation Limit Worker Wage & Hour Lawsuits?

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The Department of Labor recently proposed changes to how the law interprets the “joint employer rule.” The joint employer rule is regularly utilized by workers filing class action wage and hour lawsuits to reach beyond their immediate employer and seek recovery or compensation from a corporate parent, franchisor, or other related entity. If the proposed changes to the joint employer rule interpretation go into effect, it will change how the federal FLSA is applied, but it would not limit wage and hour protections under California state labor law.

The DOL announced the proposed change on April 1, 2019, and received praise from employers and the opposite from employee advocate groups. Those against the change argue that the new interpretation would create an opportunity for employers to avoid liability for meeting FLSA standards by outsourcing labor to third parties or working strictly with contractors. The change could leave millions of workers on unstable ground, potentially vulnerable to federal labor law violations.

The proposal attempts to define the circumstances under which a business could be held jointly responsible for wage and hour violations. A test with four elements would be used to determine if a second business or business entity could be held liable. The four factors would be: 1) if the additional party has the power to hire or fire the employee, 2) if the other party is involved in supervising the employee’s schedule or employment conditions, 3) if the additional party has the power to determine the employee’s rate of pay or method of wage payment, and 4) if the other party handles maintenance of employment records.

According to California labor law, the general rule is that state statutes can be more protective of rights of the individual or entity that the law is intended to benefit, but it cannot be less protective of those rights. Following this general rule, California state labor laws provide more wage and hour protections than the FLSA in numerous ways. The newly proposed interpretation has yet to go into effect and it may not limit the right of California employees since a significant amount of the responsibility to protect workers’ rights depends on state legislators.

If you have questions about California state labor law or if you need to file an employment law suit, please don’t hesitate to get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP. With convenient locations in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago, we are ready to be your advocate and help you seek justice for unfair working conditions.

Ninth Circuit Confirms Employees Must be Compensated by the “Second”

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The Ninth Circuit Court in San Francisco, California confirmed that even tiny amounts of work time must be counted and compensated (as in seconds on the clock). This opinion (Rodriguez v. Nike) should end the debate following the recent employer-driven campaign to revive the de minimus federal standard when considering California employment law issues and labor lawsuits.

In Rodriguez v. Nike, Isaac Rodriguez filed suit following his employment at a Nike owned California retail store. He worked at the Nike store from November 2011 through January 2012. Employees at the store (and other Nike stores throughout California), employees paid an hourly wage were required to track their hours on the clock using a time clock. As a theft deterrent, Nike required employees to allow exit inspections anytime they left the store (at the end of their shift or for a break). The mandatory checks varied in length depending on the circumstances, but they always occurred while the employee was clocked out, and the time was uncompensated.

Rodriguez filed a California class-action lawsuit against Nike in 2014 alleging violations under numerous sections of the California Labor Code and the Business and Professions Code. The complaint was dismissed in District Court on September 2017 with the court reasoning that the time necessary for the inspection was so brief it did not need to be counted according to the de minimus standard.

Then Troester v. Starbucks changed the landscape for this employment law issue when the court ruled that de minimus did not apply if the lawsuit being considered was brought at a state level under California labor code. The rule for federal lawsuits was not to be used for state lawsuits. After the 2018 ruling, Isaac Rodriguez went back to court amidst the new legal landscape. The Ninth Circuit Court sent Rodriguez's case back to the District Court for a decision consistent with the recent ruling in Troester v. Starbucks. The result was a reaffirmation of the judgment that the federal de minimus rule does not apply to state-level lawsuits, which is good news for wage earners in California. The question went from arguing over how many seconds we were talking about to a discussion of whether or not an employee is legally entitled to payment for work no matter how much time is in question.

An entire series of similar California cases have developed since the Troester v. Starbucks ruling. The ruling will affect all California wage earners, and the precedent provides both employers and employees a firm grasp of how to treat off the clock situations. 

If you have questions about off the clock job duties or if you have experienced California labor law violations in the workplace, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Comcast and O.C. Communications Reach Settlement in California Wage and Hour Suit

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The $7.5 million settlement presented by Comcast and O.C. Communications for California wage and hour violations was rejected initially. But it was approved in early July 2019 after two years of litigation. The California wage and hour lawsuit involved approximately 4,500 techs. Allegations included in the federal class action stated that O.C. Communications, skilled technician supplier, and Comcast both violated state and federal laws. The companies were accused of numerous wage and hour violations including not paying workers for all the hours they worked, failing to compensate their technicians for piecework and overtime, and failing to provide workers with the required minimum wage.

A group of technicians classified as non-exempt whose job duties included installing cable, tv, phone, security, and internet services to Comcast customers sued the companies as joint employers (Soto, et al. v. O.C. Communications, Inc., et al., No. 17-cv-00251). The plaintiffs claimed the companies failed to pay minimum wages and overtime wages, did not provide appropriate compensation for rest and meal breaks, did not reimburse their employees for business-related expenses, and did not provide required wage statements. All of the above allegations are violations of California’s labor code.

The original rejection of the settlement  April 2019 was due to U.S. District Judge Vince Chhabria’s concerns that the agreement did not address avoiding repeat scenarios. He saw the issues as being systemic. He also felt the settlement was achieved at a discount and wanted assurances that the employment law violations would be unlikely to recur.

According to case documents, Comcast techs sometimes worked 60 hours in a week and were paid on a hybrid hourly/piece-rate basis based on different tasks and jobs. One plaintiff alleged Comcast assigned him 32 jobs to complete instead of the more typical eight jobs in one shift. Comcast workers regularly ate on the job (skipping meal breaks), were required to be on call at all hours, and had to provide their own tools. One plaintiff was allegedly told to under-report his work hours.

If you have experienced injustice in the workplace or if you have been the victim of California labor law violations in the workplace, please get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Abrishamian Requests Class Certification in Employment Law Suit Against TotalMed

On June 28th, 2019, Natalie Abrishamian filed a first-amended class action complaint against TotalMed Staffing, Inc. alleging numerous California labor law violations. The lawsuit was filed in the Superior Court of Los Angeles. The allegations included in the complaint were: failure to pay for all hours worked, failure to pay minimum wage, failure to authorize or permit meal breaks, failure to furnish accurate wage statements, waiting time penalties, and unfair business practices.

 

Abrishamian, a nurse employed through TotalMed Staffing, a Wisconsin employment staffing agency authorized to do business in California, was assigned to work Kaiser Permanente Panorama City inside California as a non-exempt, hourly wage traveling nurse. The 13-week assignment began on November 5th, 2018, and ended on February 2nd, 2019. Abrishamian was assigned three 12-hour shifts each week. On approximately December 13th, 2018, the plaintiff's employment was terminated. The plaintiff was out of work two months before the agreed-upon end date of her employment.

 

Issues About the Case:

1.        Defendant Did Not Take "Per Diem" Payments into Account When Calculating Overtime Rates

2.        Defendant Did Not Provide Payment for Mandatory Training and Orientation Specific to the Job

3.        Defendant Did Not Provide or Authorize Employees to Take Mandatory Meal Breaks and Rest Breaks

4.        Defendant Did Not Provide Employees with Accurate Wage Statements as Required

5.        Defendant Engaged in Unfair Business Practices

 

The class action will apply to current and former employees of TotalMed Staffing, Inc. who were employed during the class time period (anywhere from 4 years before the original filing through the date of the hearing). Plaintiffs' legal counsel has filed a demand for jury trial. Abrishamian seeks class-action certification from the court on behalf of each of the following classes included in the complaint: Per Diem Class, Unpaid Time Class, Meal Break Class, and the Rest Break Class.

 If you have questions about California labor law violations or if you are not receiving overtime pay, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP. Call or come by one of the Blumenthal Nordrehaug Bhowmik De Blouw LLP locations nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

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Comcast Contractor Faces Settles Up to Resolve Allegations of Unpaid Overtime and Labor Law Violations

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O.C. Communications Inc., a Comcast Contractor that supplies tech talent, agrees to pay a $7.5 million settlement to resolve an unpaid overtime lawsuit. Court documents include allegations that company employees were not paid overtime, were denied meal breaks in violation of state labor law, and not reimbursed for business expenses (i.e., tools necessary for the job).

The federal overtime class-action lawsuit was filed in San Francisco naming O.C. Communications (a California firm) and Comcast as Defendants. The two Defendants agreed to settle the case after an extensive amount of litigation that included the production of 1.5 million documents related to the case. Both Defendants, while agreeing to pay the settlement amount identified above, continue to deny any wrongdoing.

One of the lead plaintiffs in the class action overtime lawsuit, Desidero Soto of Concord, California, claims that O.C. Communications scheduled him to complete 32 job stops during one workday even though the typical complete workday included a total of eight stops. Supervisors instructed him to work through meal breaks to make it work regardless of what he was required to write on official time sheets. He claims any time taken to eat during the workday was while driving from job to job and even then, he was required to be accessible by cell phone at all times and to respond to work calls at any time.

Another plaintiff in the class action lawsuit, Jacky Charles of Margate, Florida, was a tech for the Defendant from September 2016 through May 2017. He claims that he was required to buy his own wireless drill, drill bits, screwdriver, staple gun, and a variety of cables, and work clothes to fulfill his job duties. Hundreds of other techs presented similar claims to the court.

According to court records, the $7.5 million settlement that O.C. Communications and Comcast agreed to pay plaintiffs on March 1st could have the 4,500 techs splitting the amount (minus legal fees).

If you have questions about unpaid overtime or what constitutes a violation of labor law, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.

Overtime Claims Filed By Offshore Oil Rig Workers: Governed by FLSA or California State Law?

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The Supreme Court recently ruled unanimously that state wage and hour laws do not apply to offshore drilling workers when federal law addresses the issue in question. In the recent case, Parker Drilling Management Services v. Newton, No. 18-389, the question the Supreme Court was asked to answer was whether California law governs minimum wage and payment for “standby time” for workers on oil rigs working in federal waters off the California shoreline.

When they held that California’s wage and hour laws do not apply, the Supreme Court rejected the Ninth Circuit Court of Appeals’ decision. The Supreme Court concluded that under the Outer Continental Shelf Lands Act (OCSLA), California state law is not applicable as surrogate federal law unless federal law presents a significant void or gap concerning the specific issue. The Supreme Court decision is a decided victory for companies currently operating or servicing oil rigs off the California coast in federal waters.

The Allegations Made in the Wage and Hour Case:

Brian Newton, the plaintiff in the case, worked on oil drilling platforms off the coast of California as an employee of Parker Drilling Management Services, Ltd. Newton alleges that he regularly worked 14-day shifts involving 12 hours of “on duty” hours per day and 12 hours of “standby” per day. During the standby hours, Newton claims he could not leave the platform, yet he was not paid for the standby hours.

Newton filed a class action lawsuit in California state court alleging that the company’s standby policies violated California’s wage and hour laws as well as other claims of labor law violations in connection to Parker Drilling’s failure to provide workers with pay for standby hours. After the case was removed to federal district court, parties involved agreed that the oil drilling platforms where Newton performed his job duties were covered under OCSLA.  

If you are dealing with issues of wage theft and you aren’t sure how to seek justice for the wages you have lost, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.