Will California Be the First State to Offer Black People Protection from Natural Hair Discrimination in the Workplace?

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Many black Angelenos see Mahogany Hair Revolution, the natural hair salon run by Kari Williams in Beverly Hills, as a refuge. It is a particular refuge for black Angelenos who are pressured to change their hairstyle to keep a job or advance in the workplace. Williams has had customers come in to request she cut their locs (short for dreadlocks) because their boss or supervisor told them the hairstyle was unacceptable. Other customers can't remember what their natural hair looks like because they haven't worn it in so long. Williams supports the proposed state legislation that could make California the first state to offer legal protection to black employees experiencing natural hair discrimination in the workplace.

The proposed legislation, referred to as the CROWN Act, passed the state Senate in April and was recently approved by the state Assembly. The legislation would outlaw policies that punish black employees or students for their hairstyles. Supporters say the bill would create a respectful and open workplace for natural hair (the bill's acronym, CROWN). The CROWN Act would extend the anti-discrimination protections included in the Fair Employment and Housing Act and the California Education Code to add hair texture and hairstyles. It would also amend California government and education codes to protect from discrimination based on traits that are historically associated with a race (like hair texture or hairstyle). The Act would effectively make targeting a hairstyle that is associated with a particular race would be legally defined as racial discrimination.

If the Governor signs the bill, it will provide legal protection for people in the workplace and K-12 schools by prohibiting enforcement of grooming policies that have a disproportionate effect on people of color. The change would affect policies that ban certain hairstyles like Afros, braids, twists, cornrows, dreadlocks, etc. Black employees have filed numerous lawsuits nationwide claiming to have lost their jobs or faced discrimination in the workplace due to their hairstyle.

Lawmakers in New York and New Jersey proposed legislation modeled after the CROWN Act in June.

If you are experiencing workplace discrimination or if you need to discuss how to file a California discrimination lawsuit, get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw L.L.P. With conveniently located employment law offices in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago; we are here when you need help.

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.

Property Appraisers Group Denied Certification of Class in Misclassification Suit Against Major Insurers

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California’s 2nd District Court of Appeal affirmed a trial court ruling denying certification of class for plaintiffs in a misclassification lawsuit against major insurers: Allstate, Farmers, North American Compass Insurance Service Group, CIS Group, Advanced Field Services, and Capital Personnel Services. The ruling was a significant win for insurers and service companies as the legal team was attempting to bind a group of 1,550 California property appraisers together to sue for alleged misclassification (McLeery et al. v. Allstate).

The representative plaintiffs in the suit alleged that the two insurance providers and the various service companies intentionally insulated themselves from labor laws by contracting services for property appraisal upon policy creation or renewal rather than hiring appraisers as employees. The time frame cited for the allegations is 2005-2008.

The litigation has been ongoing for years, and legal counsel for the defendants does not predict an end to the proceedings anytime soon. The plaintiffs in the case may appeal the California Supreme Court decision or continue forward with separate lawsuits naming the plaintiffs individually. 

A second lawsuit (Lunde v. Farmers Group) was filed by a different group of 106 appraisers in Los Angeles County Superior Court in 2014 and has been stayed pending the outcome in the McLeery case.

The most recent ruling marks the second tie the appellate court stepped in to answer a procedural question for the McLeery suit. Initially, the plaintiff’s plan to assess damages classwide through statistical analyses of results from an anonymous, double-blind survey sampling class members, but the 2nd Circuit reversed the decision and ordered the trial court to conduct the evaluations according to the proposed plan.

A survey expert, Krosnick, was hired by the plaintiffs to design a method of determining liability and damages. The study consisted of 45-minute interviews with proposed class members. The defendant’s experts questioned the scientific validity of the survey claiming that it invited “significant error” by asking participants to provide precise recall of events up to 10 years in the past. The court found that the survey results failed to specify why workers skipped meal or rest breaks (the nature of their work or their preference), whether inspections were performed by Allstate or Farmers, and failed to address work-practice variations amongst inspectors. The 2nd District upheld the trial court’s decision not to certify class due to the proposed anonymous survey. The courts agreed that the plaintiffs’ case relied on showing that insurance carriers and service companies conspired together to violate labor laws, but the survey failed to do so. The case seems to lack a fair, manageable method of establishing liability.

If you have questions about filing a class action lawsuit or if you have experienced labor law violations on the job, 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.

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.

Discouraging Workers from Taking Meal Breaks Cost Walmart over $6M

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Two Walmart workers filed a California class-action lawsuit alleging lost meal breaks due to mandatory security checks. The plaintiffs, Chelsea Hamilton and Alyssa Hernandez, contended that the required security search took a lot of time,  was intrusive and embarrassing.  Plaintiffs did not claim that Walmart prohibited them from taking their break, but they did insist they were discouraged. Discouraging employees from taking their legally protected meal break cost Walmart $6.1 million when the jury awarded Walmart workers in April.

Throughout the years, lawsuits filed by employees have resulted in rulings on what employers can do, what employers cannot do, and what employers are required to do in different legal areas. One of the most common disputed areas is rest and meal breaks. This case makes it clear that employers may not make it too hard or too much of a hassle for their employees to take their legally protected meal breaks. Some say that “meal break discouragement” theory could be an important new element of California labor law.

According to the California Labor Code, non-exempt workers are entitled to receive a 30-minute meal break if they work over 5 hours in one day. Employers are not required to pay employees for the meal break. Employees who work more than 10 hours in one day are entitled to additional meal breaks. Employers are also required to provide employees with 10-minute breaks every 4 hours on the job. Unlike meal breaks, employers are required by law to pay employees during their mandatory 10-minute breaks.

Employers who do not comply with meal and rest break law are required to provide employees who missed mandatory breaks with one additional hour of regular pay for each day during which a meal break violation occurred. Another extra hour of payment is required for each day during which a rest break violation occurred during their work shift.

Past lawsuits and findings of the court have made it clear that both rest and meal breaks must be free of job duties and uninterrupted (this includes running errands for the company/employer or being on call).  

If you are experiencing meal and rest break violations in the workplace or if your employer does not offer meal or rest breaks to employees, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Find 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.