California Court Rules On-Call Tilly’s Workers Should Receive Pay

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Some employers require workers to call in in order to find out if they have to work their shifts. Some employees are required to call in just hours before they may need to start work. This practice triggered California’s requirement that workers be given “reporting time pay.” A split California appeals panel recently brought this up when reviving a proposed wage class action against Tilly’s Inc. In doing so, they potentially opened up many other California retailers to similar (potentially expensive) suits.

The Second Appellate District said Tilly’s on-call policy triggers California State’s Wage Order 7, in which it states that employers must provide workers with pay when they report to work but are not put to work or provided with at least half of their usual/scheduled day’s work. Since workers are “reporting” when they call in, Wage Order 7 means employers must pay them between 2-4 hours worth of wages depending on the length of the scheduled shifts being referenced.

Tilly’s practice of having their workers call in to see if they need to work their shifts just hours before they would need to start work, is exactly the type of policy that reporting time pay was intended to stop. The appellate court decision overturned a lower court ruling that tossed the suit when they concluded that the on-call scheduling alleged in the case against Tilly’s triggers Wage Order 7’s reporting time pay requirements. They noted that on-call shifts are a burden to employees who cannot take other employment, attend school or make plans socially because they may need to work, but simultaneously may not receive payment for the time they have set aside unless they are ultimately called in to work.

Tilly’s argues that workers “report” for work under Wage Order 7 only if they physically show up for the start of a scheduled shift. The appellate court concluded that the requirement should be read to include those required to check in before physically arriving on the job before granting worker Skylar Ward’s appeal.

The appellate court noted that while policies like Tilly’s call-in requirement probably didn’t exist when Wage Order 7 was adopted by the state, the reporting time requirement covers situations other than those specifically considered by the drafters.

If you have questions about what is covered by Wage Order 7 or if you are required to call in to report before a shift, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP so we can help you protect your rights in the workplace.

Gordo Taqueria Employee Lawsuit Results in $690,000 Settlement

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Gordo Taqueria has agreed to pay a $690,000 settlement to resolve a class action lawsuit brought by employees alleging the restaurants’ owners engaged in wage theft and other employment law violations. Gordo Taqueria owns five restaurants in San Francisco, Berkeley and Albany.

The settlement received preliminary approval from Alameda Superior Court judge Brad Seligman in December 2018. The settlement is scheduled to receive final approval on April 2nd, 2019. Within the settlement, the Defendant notes that they do not accept the facts as presented in the case by the plaintiffs and they admit no wrongdoing.

The lawsuit was brought by former dishwasher and prep cook Jose Martinez. Martinez worked at the College Avenue location in Berkeley from 2013 to 2015. The suit includes 240 Gordo employees, some current and some former. In the December 2016 complaint, Martinez alleged that Gordo did not pay him and other workers in similar positions as required by law. Workers regularly completed 10-12 hour days and were not provided with overtime wages. Tips were distributed only once or a few times per year and were given to employees based on hours they worked and their rate of pay, which is also in violation of labor law. Employees were allegedly not provided with required meal breaks or rest periods when completing long shifts (10+ hours/day).

Industry practice and state law both stipulate that cash tips are distributed at the end of each work day. California law specifically stipulates that tips are the sole property of the employee and that credit card tips should be distributed at the end of each pay period. Allegations were also included that the employees did not receive their full wages or back pay once their employment with the company ended and the company did not maintain accurate payroll records to calculate hours worked and wages owed.

During the discovery process, it came to light that Gordo did not use a time clock until 2015. Before that, the company relied on manual record keeping and the pre-2015 records were not kept on file by the company (another violation, this time of state record-keeping requirements).

Gordo owners dispute all the allegations made by the plaintiffs and state that they have done nothing unlawful.

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 California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Do After Hours Phone Calls Qualify for Overtime Pay?

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The fact that the majority of workers carry a cell phone 24/7means that employers have the ability to reach workers at any time on any day. The problem is that some employers actually expect workers to respond at any time on any day (or night) as well. So, what about that random 1am phone call from the manager on duty? Does that count towards overtime hours?

24/7 access to their employee workforce is going to come at a cost to employers as they will need to pay for the time or risk potential class litigation regarding unpaid wages. Starbucks Corp. and Evolution Fresh (a Starbucks subsidiary) recently settled an overtime suit that delivery drivers brought against the company claiming that they were not compensated for company calls they took outside of their scheduled shifts. Another major corporation, ABM Industries, is facing similar problems. It looks like ABM will probably be settling (to the tune of $5.4M) to resolve claims that they failed to reimburse cleaners for data and cell phone costs. ABM employees claim they were required to use their cell phones for clocking in, clocking out, and other work necessities and job duties.

So, when do employers need to pay workers for after hour calls? What about after-hours emails? How is “compensable time” determined?

Determining compensable time depends on which law is at play: the federal Fair Labor Standards Act or an equivalent state law. Once this is determined, the question becomes whether or not the employees are covered by the law. If the employee is covered by the law, is their work considered “de minimis” or too infrequent or insignificant to require payment?

This type of overtime case depends heavily on the facts and details of the specific case. How the details are presented can be crucial and the court’s decision has been known to fall on both ends of the spectrum. Nearly everyone has a cell phone and this makes it easy to reach an employee with a phone call, text message or email during a break or after they are off work and off the clock. Some employees feel pressured to respond to employer contacts even though they aren’t clocked in – others may be required by company policy or expectations to respond.

If you have questions about why you aren’t paid overtime or if you need to talk about what constitutes off the clock work, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

Former Bodyguards Receive Settlement After Suing Depp for Employment Violations

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Two former bodyguards for Johnny Depp, Eugene Arreola and Miguel Sanchez, filed a California lawsuit in May 2018 alleging claiming Depp was in violation of employment law. Sanchez and Arreola claimed they were overworked and not paid overtime. The bodyguards also claimed they were subjected to unsafe working conditions. The lawsuit has now been settled.

Depp came to an agreement with the two former bodyguards who filed suit in 2018 and the case has been closed with all future hearings cancelled. Court documents indicate that the bodyguards reached a conditional settlement the resolves the matter. Settlement details were not released.

Arreola and Sanchez claimed in their lawsuit that Johnny Depp overworked and underpaid them during their time with him as bodyguards. They specifically cited a two-year period during which they described their time on the job as intolerable. They claimed they were expected to act as Depp’s babysitter. The duo claimed that between April 2016 and January 2018, they did not receive any overtime pay and they were deprived of food and rest breaks due to their work looking after the Depp family.

The original lawsuit was riddled with intense allegations. One claim described a situation in which the bodyguards were required to wipe drugs from Depp’s face at a nightclub in order to prevent others around the celebrity from seeing him using. The bodyguards describe their time with Depp during this time period as watching him spiral into a financial hurricane and act as babysitters for his children. One of the bodyguards claimed that one of his major job duties was to ensure that one of Depp’s children was looked after appropriately because they were living in an outhouse on Depp’s compound in Los Angeles.

Arreola and Sanchez asked for unspecified damages and compensation to make up for money they were owed due to overtime violations, etc. The two bodyguards described their job as requiring them to protect Depp from himself and his vices while he was in public – effectively making them caretakers.

Sanchez and Arreola (a 38-year-old LAPD veteran) worked happily for Depp for years while they were employed by a security company the celebrity hired, but then the problems started. Early in 2016, the bodyguards noticed Depp’s’ behavior start to change as well as the atmosphere in his Hollywood Hills compound. He started to make sudden and drastic changes to his staff and management team. The moves resulted in a substantial financial crunch for everyone except Depp.

In April of 2016, in the midst of his rocky marriage with Amber Heard, Depp fired the security company that employed both Sanchez and Arreola, Premier Group International. The bodyguards claim that Depp and his entourage made the change to “cut out the middle man” and hire the bodyguards directly so they could avoid the agency fee.

Once the guards were employed by Depp directly, their pay checks and hours were not properly tracked. They were expected to work 12-hour days and back to back shifts. And their job duties expanded to include safeguarding Depp and others who were around him as they engaged in “illegal activity.” They were often in situations that required more of them that what a bodyguard would reasonably be held responsible for. They were frequently being asked to perform the tasks of drivers for Depp and his family. They were repeatedly asked to drive vehicles that contained illegal substances as well as open containers and minors. They were asked to monitor unstable people in Depp’s life. Sanchez was specifically tasked with looking after one of Depp’s children (either 19-year old Lily rose or 16-year old John Depp III, the lawsuit did not specify which child). In fact, more often than not, Sanchez who was hired to protect Depp’s children, was more often than not the primary caregiver for Depp’s minor child who loved on the Depp compound, but in a separate home. Sanchez was advised to give in to every whim of Depp’s children. He worried that if he didn’t, he would be terminated from his position.

If you are being forced to work in a toxic or dangerous work environment or if you are not being paid overtime as required by federal law, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

The California Supreme Court’s Dynamex Decision Impacts Standards

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The California Supreme Court’s decision on Dynamex Operations West, Inc. v. Superior Court of Los Angeles is affecting legal standards determining whether a worker should be legally classified as an employee or an independent contractor. The company in the case, Dynamex, put a test in place as a standard determining classification that made it more difficult for businesses to classify workers as independent contractors.

For example, Lawson v. Grubhub, Inc. was a case heard before U.S. Magistrate Judge Jacqueline Scott Corley. It was a closely watched case out of California federal court. The judge on the case noted in a new order that her decision on the case may have been different if the Dynamex opinion had already been recorded. While Judge Corley declined to vacate her earlier finding, it is likely the order will be reversed upon appeal.

In Lawson v. Grubhub, Inc. the plaintiff, Raef Lawson was a GrubHub driver who claimed he was misclassified as an independent contractor. When GrubHub moved to dismiss the suit in early 2018, the district court found the company did not “control” Lawson’s work – siding with the company. Lawson appealed. After the Dynamex decision, Lawson filed a motion. He sought relief from the judgment on record. Lawson argued that his case would have had a different outcome if the California Supreme Court had adopted a new legal standard for use when determining the classification of workers as employee or independent contractor. The court responded by allowing that a careful consideration of the issues and with the benefit of an oral argument, the motion raises substantial issue, but they declined to definitively rule on vacating the judgment. They court noted that deciding whether or not the Dynamex ruling should apply retroactively is a decision to be made by the U.S. Court of Appeals for the Ninth Circuit.

If you have questions about misclassification or if you need to discuss how you can seek justice when your employer refuses to provide you with overtime pay, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.


 

Infosys Facing Allegations of Failure to Pay Overtime

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A former employee of Infosys, Anuj Kapoor, filed an overtime lawsuit against the company. It is not the first and will likely result in a US Department of Labor investigation. Kapoor was involved with a CVS project in Rhode Island and filed suit against the company in June. Kapoor alleges that Infosys made him work over 1,000 hours of overtime without providing him with overtime pay.

Kapoor, plaintiff, alleges that he worked an estimated 1,084 overtime hours for the company between May 2015 and June 2017 and that they were over and above his weekly 40 hours. He also alleges that the overtime hours worked resulted in zero compensation. Not only was not provided accurate overtime wages, but he was not provided any wages for the additional hours at all.

Kapoor isn’t the only employee of Infosys who has made this type of allegation against Infosys. Infosys has run into overtime claims before. The company paid $26 million in 2008 to the California Division of Labor Standards Enforcement. The payment settled a previous investigation into allegations of unpaid overtime.

The company, Infosys, denies the allegations. They not only insist that Kapoor’s allegations are unfounded, but they state that they will defend themselves in the action. Infosys’ spokesperson states that they comply with employment law throughout the United States. Additionally, the Defendant noted that the current case based on Kapoor’s allegations has no connection to past allegations and that the decade-old case in California has no relevance to the current case.

Infosys is not the only Indian IT company that has faced overtime lawsuits from their employees. Wipro, another Indian IT company, was sued by one of their employees for unpaid overtime. In the current regulatory environment in the United States, lawsuits and complaints are definitely raising concerns and companies operating in “gray areas” are finding that allegations cannot be ignored or easily swept aside.

If you need help seeking overtime pay from your employer or if you have questions about overtime regulations, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Beau Biden Named in Unpaid Overtime Suit

Three detectives (R. Durnan, G. Christian, and M. Forbes) previously employed by the Delaware Attorney General’s Office have filed charges against their former employer claiming that they were not paid overtime. The federal lawsuit claims that the failure to pay overtime was in violation of federal labor laws and that in response to their demands for overtime pay they were demoted.

The detectives named Delaware Attorney General Beau Biden, Timothy Mullaney (his chief of staff) and the Delaware Department of Justice as defendants. The civil action was filed in U.S. District Court earlier this week.

Christian retired earlier this year and Durnan is set to retire in May 2014. The three were titled “detectives,” but their job duties were almost entirely made up of one task – handling the out-of-state extradition of fugitives who fled the state. The detectives allege that they all worked in excess of 40 hours/week between November 2010 and November 2013, but were never paid overtime due. According to the allegations made in the suit, Mullaney’s response to the detective’s request for overtime compensation was to reassign Durnan and Forbes to different assignments and to leave Christian in his position at a limited capacity with no overnight travel, no flying and a maximum of 37.5 hours allowed per week. The detectives claim the reassignments were retaliation. The plaintiffs seek overtime pay due, reassignment to their old positions, damages and legal fees.

Talk to the experts at Blumenthal, Nordrehaug & Bhowmik to find out if you have cause to worry about your own situation. Are you getting the overtime pay you are due?