Strengthened Protections for California Workers have Bay Area Restaurant Workers Collecting Lost Wages

Strengthened Protections for California Workers have Bay Area Restaurant Workers Collecting Lost Wages.jpg

In response to a recent class action lawsuit alleging wage violations, a popular Bay Area restaurant, Gordo Taqueria, agreed to pay workers $690,000. The case is the latest in a string of similar labor cases that involve well known Bay Area restaurants. The new legal trend is due at least in part to the results of a years-long effort by the California Labor Commissioner’s Office to strengthen protections for workers and improve their ability to collect lost wages.

In January 2019, another Bay Area restaurant, Rangoon Ruby, agreed to pay a settlement to over 300 workers that totaled $4 million in wages plus penalties. In 2018, La Taqueria settled with workers in a similar case for $500,000. Additional recent cases based on similar allegations include cases against: Burma Superstar, Mango Garden, Kome Buffet, and Mission Beach Café.

Jose Martinez, former Gordo dishwasher, worked at the Gordo Taqueria on College Avenue in Berkeley from 2013 to 2015. He brought complaints to the attention of Legal Aid at Work in San Francisco and with their help, he filed a class action lawsuit in December 2016 against the restaurant chain. In the class action lawsuit representing 240 workers, Martinez alleged that workers for the Bay Area restaurant received tips only as a lump sum annually instead of daily or at the end of each pay period as required by California state employment law. He also claimed that workers were not receiving all the overtime pay they were due for hours worked beyond 8 in one day and/or 40 in one work week.

Gordo owners responded to the allegations through their attorney by saying that the restaurant has served the Bay Area since the 1970s, always provided great food and a been a great place of employment. They also stated that they quickly responded to the lawsuit in December of 2016 by engaging in negotiations with the plaintiff’s counsel and instituting early alternative dispute resolution measures to negotiate a deal that the restaurant believes is fair to all parties. They also denied all allegations listed in the complaint.

An Alameda Superior Court Judge approved the settlement agreement in December on a preliminary basis. The settlement agreement would resolve the class action suit. The claims included in the suit filed by Martinez are similar to others filed against many other area restaurants in recent cases: inadequate rest breaks, unpaid overtime, improper distribution of tips, minimum wage violations, and instances of retaliation against workers who speak up for their rights.

If you have concerns that you are not being provided fair overtime pay or if you are not being compensated as required by California state labor law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Court Grants Wells Fargo Loan Officers Class Action in Pay Dispute

California Court Grants Wells Fargo Loan Officers Class Action in Pay Dispute.jpg

California-based Wells Fargo loan officers recently filed suit alleging that they were improperly compensated (Kang v. Wells Fargo Bank). The lawsuit could now have even greater implications as the plaintiffs have been granted class certification by the California court.

The issue in the case is to determine whether state was violated when Wells Fargo allegedly conducted “clawbacks” of hourly wages, vacation and separation pay from earned sales commissions. Allegedly, Wells Fargo made a practice of compensating its mortgage sales force using advances on their commissions at a basic rate of around $12/hour, then “clawback” the hourly pay from commissions and vacation pay as they were earned.

James C. Kang, plaintiff in the case, claimed that the clawbacks were in violation of a number of state labor laws that related to employee compensation, including: overtime pay, minimum wage requirements, and vacation pay requirements because they left members of the sales force affected by the practice unpaid for tasks they were required to fulfill by the company that were unrelated to direct sales. Kang also alleged in court documents that members of the sales force who were promised vacation pay did not actually receive it due to the clawbacks.

The bank claims that the pay structure used to compensate home mortgage consultants is compliant with California wage and hour laws, including paying for all hours worked and that the compensation structure allows mortgage workers to earn a competitive, performance-based wage.

Since Well Fargo implemented a mandatory arbitration provision for its sales force on December 11, 2015, the judge ordered those hired or rehired after that date to be excluded from class certification. All other nonexempt employees of Wells Fargo as of October 27, 2013 working as home mortgage consultants or private mortgage bankers, junior HMCs or junior PMBs are part of the class. A subclass is included in the class certification for individuals who were terminated from their employment.

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

California Exxon Subcontractor On-Call Claim Settled for $2.3M

California Exxon Subcontractor On-Call Claim Settled for $2.3M.jpg

In recent news, an electrical subcontractor for ExxonMobil Corp. and Freeport McMoRan Oil & Gas agreed to a settlement to resolve employment law violation claims related to on call workers without pay. The $2.3 million settlement will resolve allegations that workers were due back pay after they were on duty at all hours and were not allowed to leave the offshore oil and gas platforms.

102 workers were involved in the claims based on both the Fair Labor Standards Act (FLSA) and California law. The proposed class action lawsuit listed Ardent Companies, Inc. as the Defendant. Allegations were made that the Defendant in the case required their employees to remain on-call at all times: during meal breaks, during rest periods, when they were not scheduled for a shift. The lead plaintiff in the case claimed that while employees were provided meals and lodging as a condition of their employment, the value of those benefits wasn’t included in their “regular rate” of pay when calculating any overtime pay due to workers.

The Defendant, Ardent, argued that the workers were appropriately compensated for their time and that California state wage and hour law requirements were not applicable to the situation because the platforms where the employees fulfilled their job duties were located in federal waters and that employees were able to leave the platform upon request.

The plaintiffs’ case was supported by a pending case scheduled to be heard by the U.S. Supreme Court in April. The 9th U.S. Circuit Court of Appeals reversed the lower court’s dismissal of the case, Newton v. Parker Drilling Mgmt. Servs, Ltd. They held that state minimum wage and overtime law were applicable to the case rather than FLSA in reference to the oil platform workers involved in the case working on the Outer Continental Shelf. A decision on this case is expected in June.

This is good news for California workers as California employment laws tend to offer more protection to employees than their federal counterparts – and on-call work is no exception to this trend. Under FLSA, employees are generally considered on call if they are required to remain on the job site/the employer’s premises. Employees who are to remain on call at home or who are required to leave a message where they can be reached, are not (in most cases) considered on call according to federal law. Exceptions may occur in situations where there are additional constraints on the employee’s freedom.

California state employment law, on the other hand, entitles employees to pay under a wider scope of circumstances. For instance, California state court recently expanded the requirements with the finding that on-call workers may be entitled to pay even when they are not scheduled to work (see Ward v. Tilly’s, Inc., B280 151 (Cal. App. Ct. Feb. 4, 2019)). In the Tilly’s case, workers who were required to call in hours before their shift to verify if they were scheduled or not, were not paid unless they were actually called in to work. The court agreed with the plaintiffs in the case that employees calling in hours before their shift constituted “reporting for work” and as such, they were entitled to pay under state law even though, ultimately, they were not required to work their shift.

If you have questions about California wage and hour law or if you need to discuss wage and hour or overtime requirements, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

PAGA Benefits Both Employees and Employers

PAGA Benefits Both Employees and Employers.jpg

The United States of America was found on a system of checks and balances. The most recent addition to this system of checks and balances is The Private Attorneys General Act (PAGA). PAGA was passed by the Legislature in order to oversee California employers at no cost to the state. Under PAGA, private citizens can prosecute labor code violations. In fact, PAGA prosecutions don’t only cost the state nothing, but they benefit the state financially and reduce the citizens’ tax burden because 75% of all funds collected go directly to the state of California.

PAGA prosecutions have already brought hundreds of millions of dollars to California. It has also resulted in California laying claiming to one of the most thorough levels of labor law enforcement in the nation. This means California employers are well aware that they can’t cheat to compete without serious risks involved.

The PAGA paradigm generates an additional benefit for California in the form of an exceptional employment bar (representing employers and workers) that commands compliance with state labor laws under serious threat of prosecution for non-compliance under PAGA. In order to comply with employment law, employers must conduct a balancing act with fear and greed. Under PAGA, the fear of enforcement is enhanced, therefore reducing the greed at the employer level and making the job of the employer’s bar (seeking compliance with labor law) significantly easier.

When considered from all angles, PAGA should not just be recognized for helping the state become the place where all companies have a chance to succeed due to an even playing field but should also be recognized as the set of factors creating the chance for better enforcement of environmental laws, health and safety laws. The Supreme Court said it best when they noted, “The general intent of PAGA is to allow employees to pursue civil penalties through the legal system when the LWDA and related state agencies do not have the resources to do so, with a goal of increasing the deterrent effect of the civil penalties and compliance with labor laws.”

If you have questions or concerns regarding how PAGA affects you in the workplace or if you need to discuss labor code violations on the job, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Do Breastfeeding Discrimination Cases Lead to Nursing Moms Losing Their Jobs?

Do Breastfeeding Discrimination Cases Lead to Nursing Moms Losing Their Jobs.jpg

It doesn’t surprise many to be told that many employers fail to offer appropriate accommodations for breastfeeding. Even though the failure to do so, poses a health risk (and headaches) for nursing employees. Yet a new study that is the first one of its kind if bringing more clarity to this invasive workplace issue. The damages actually extend to the livelihoods of the mothers. According to researchers, a shocking two-thirds of cases alleging breastfeeding discrimination in the past decade eventually led to the employee losing their job.

Even the researchers themselves were shocked at the results. If you want to learn more about this workplace issue, start by defining breastfeeding discrimination.

Types of Breastfeeding Discrimination:

·      Denying break requests from employees who are in pain and/or leaking milk.

·      Firing employees for asking for breaks in connection to breastfeeding.

·      Refusing to provide privacy for employees who need to pump breast milk.

Sexual harassment of breastfeeding employees is also a common problem in the workplace.

Employers are supposed to provide breastfeeding employees with a clean place to pump (that is not a restroom), 15-20 minute breaks to pump breast milk, and a change in their job duties or a temporary assignment that accommodates their situation if it is necessary. For example, one of the study participants was a police officer who was unable to wear a bulletproof vest while she was breastfeeding. She was denied a temporary assignment to a desk job.

As a result of the predominantly negative perception of breastfeeding in the workplaces of America, working mothers are weaning their babies sooner than recommended by doctors, ending up with a diminished milk supply, or suffering from painful infections (a health risk that is often associated with lactation discrimination). The researchers went into the study aware of the health risks associated with the issue, but what really surprised them was the economic harm caused and the extent to which it pervaded the women’s lives. On top of the two-thirds of employees in breastfeeding discrimination cases who ended up losing their jobs (by being fired or forced to resign), three-quarters of the workers in the group experienced an economic penalty, such as reduced hours or being unpaid during their 15-20 minutes breaks for breastfeeding.

If you are struggling with breastfeeding discrimination or any other form of discrimination in the workplace, get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Former Freelancer Loses Lawsuit Against LA Times

Former Freelancer Loses Lawsuit Against LA Times.jpg

In recent news, the LA Times took home a win after the California Court of Appeals affirmed the dismissal of a former freelancer’s defamation and employment lawsuit. The former freelancer, Frederick Theodore Rall III, was a political cartoonist and blogger for the well-known media conglomerate. In his lawsuit, he brought claims of defamation, wrongful termination, intentional infliction of emotional distress, retaliation, and other employment law violations, against the paper – all stemming from the LA Times’ decision to disassociate itself with Rall and publish a note to readers that questioned the accuracy of a blog post Rall posted describing an interaction he had with police. Rall claims that he was handcuffed, thrown against a wall, and in the process his ID was thrown into the gutter.

After an investigation, the LA Times concluded that there were serious questions regarding the accuracy of the recounting of events and allegations made against the police in the recounting. They noted factual inconsistencies and stated that the paper would no longer be publishing the writer’s content. After reader responses, the paper published an additional item that offered a more detailed analysis of the event with their investigation findings including the LAPD records of the event, etc.

The LA Times filed an anti SLAPP (Strategic Lawsuit Against Public Participation) motion to strike the complaint in response to Rall’s lawsuit. The motion was granted by the trial court. The dismissal was confirmed by the California Court of Appeal – holding that the LA Times sufficiently established that the report offered to readers and the decision by the paper to stop publishing work by Rall were protected activities under the First Amendment and the “fair report privilege.”

If you have been wrongfully terminated or if you need to discuss your rights in the workplace and how to seek justice when you have been discriminated against on the job, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Employee Back Pay Lawsuit Settled by Los Robles Regional Medical Center

Employee Back Pay Lawsuit Settled by Los Robles Regional Medical Center.jpg

Thousand Oaks, California’s Los Robles Regional Medical Center agreed to pay $2.95 million to settle a lawsuit alleging that they shortchanged their employees’ hourly pay. The settlement agreement addresses litigation due to a 2014 filing by plaintiff, Jeanette Munden, a former nurse at the medical center. Munden alleged her hourly pay was routinely rounded in a way that short-changed her paycheck.

Judge Kevin DeNoce of Ventura County Superior Court approved the settlement against Los Robles, ruling that the center would pay $2.95 million over a lawsuit alleging that it shortchanged hourly pay of employees and prevented them from taking lunch breaks (as well as other labor code violations). The settlement includes 3,000 current and former employees who split close to $1.9 million. The average payout for workers included in the suit will total around $618. The hospital will also be covering attorney fees ($973,500) and state labor code penalties for alleged violations ($10,000).

The company settled on a no-fault basis and does not admit any wrongdoing, although this is not the first time they have faced this type of employment law violation allegation.

Timeline of the Case:

2005: A federal judge approved a $4.75 million settlement for a lawsuit against Low Robles Medical Center claiming over 1,000 employees were owed wages for missed breaks and overtime.

2014: Jeanette Munden, former Los Robles nurse, alleged her hourly pay was regularly rounded to short her paycheck. She claimed Los Robles owed her overtime and that she was also consistently denied lunch breaks and rest periods during her employment at the facility.

2015: Munden resigned from her position at Los Robles to take another job but was not paid compensation she was owed by the company.

2017: Nurses negotiating contracts with the facility in September 2017 claimed that staffing was so limited that they could not take breaks or even, sometimes, go to the bathroom.

As the lead plaintiff in the case, Munden will receive a $15,000 award. Only one of the current and former employees included in the suit objected to the settlement.

If you have questions about how to file an overtime lawsuit or if you need to discuss when employers are required to provide overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.