Bosh’s Former Driver Sues for Overtime Pay Violations

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Chris Bosh’s former driver is suing him for violating overtime law. Michael Ray, the former driver, alleges that the NBA star failed to pay him overtime that he was due after moving to Austin, Texas in the summer of 2018.

In a federal lawsuit that Michael Ray filed in Austin, Texas, he claimed he started work as Bosh’s driver when the NBA player and his family were residents of the state of California. According to the lawsuit filed by Ray there were five people employed in the Bosh family home. Two were household managers. Two were employed to maintain the yard and the exterior of the home. And the fifth was Michael Ray himself, employed as Bosh’s driver.

 While the family was living in California, Ray claims that Bosh paid him by the hour and did not usually require any overtime hours. But on the rare occasion that Ray did put in overtime hours at Bosh’s request, he was paid overtime wages for the hours worked. This changed in July 2018 when Chris Bosh moved with his family to Austin, Texas. In the process of the move, Bosh cut back on his staff and placed his driver, Michael Ray, on a fixed salary.

At this point, Ray claims his duties were expanded to include more household duties, including unpacking boxes from the family’s move from California to Texas, putting together new furniture ordered for the new household, taking out the garbage, and supervising contractors and pest control workers while they were working on the Bosh property. According to the suit, Ray was also required to run errands for the family. For instance, he was required to go the pharmacy, the grocery store, pick up food ordered from restaurants, etc. The additional duties increased Ray’s working hours to over 70 hours per week.

Ray claims, despite the drastic increase in hours and obvious overtime, Bosh refused to provide him with any overtime pay. According to Ray, Bosh declined to provide him with overtime pay because Ray was on a salary and Bosh insisted that as that was the case, Bosh could require he work as many hours as necessary. Ray claims that within days of raising the issue of overtime pay, Bosh terminated his employment. Ray, who is now back in California, is seeking unpaid wages, reinstatement of his job and other damages.

If you have been denied overtime pay or if you need to discuss what constitutes an overtime pay violation, please get in touch with one of the experienced employment law attorneys at California’s Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Recent Suit Claims Fresenius Left On-Call Time Out of OT Calculations

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When Fresenius Medical Care Holdings Inc. calculated employee pay rates at their Ohio hospitals, they allegedly failed to include a stipend for on-call hours. In doing so, they effectively robbed their employees of overtime they were legally obligated to pay. As a result, Fresenius is now facing a proposed class action that was filed in Boston federal court (Freeman v. Fresenius Medical Care Holdings Inc. et al., case number 1:19-cv-10439).  

Fresenius Medical Care Holdings, a German company with North American headquarters in Massachusetts, is the world’s largest provider of dialysis products and services. David M. Freeman, plaintiff in the suit, was employed as a nurse by the company in 2009. During his time with the hospital, he worked at a number of their various facilities throughout Northern Ohio. As payment for his work, Freeman claims he received flat-rate stipends for time he spent on call on top of his hourly rate of pay. According to the lawsuit, Fresenius company policy does not recognize on-call time as hours worked and Freeman claims that this policy defies the Fair Labor Standards Act (FLSA) by excluding the on-call pay from the regular rate for the purposes of overtime calculations.

Freeman believes that the company knew that on-call pay and other, similar forms of payment for employment must be included according to employment law when computing an employee’s regular rate of pay for overtime calculations. Due to the obvious disregard of the illegality of their policy, Freeman alleges that Fresenius acted in reckless disregard for the illegality of their actions when excluding on call pay. The plaintiff argues that the practice of excluding on call pay in this manner runs counter to both longstanding U.S. Department of Labor regulations and case law.

For example, an agency regulation that was issued in the early 1980s states that on-call payment is “clearly paid as compensation for performing a duty involved in the employee’s job.” The regulation goes on to say that as on-call payment is payment for a job duty, it must be included as part of the employee’s regular rate of pay.

The lawsuit brings claims for OT violations under both federal and state law and seeks declatory and injunctive relief. It also establishes a putative class of individuals employed by Fresenius Medical Care North America during the last two years. In addition to naming Fresenius as a Defendant in the suit, Freeman named its subsidiary, Renal Care Group Inc. due to the claim that they issued checks on behalf of Fresenius.

If you have concerns about how your employer calculates your overtime pay or if you are not receiving overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

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.

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.