National Implications of Unpaid Home Care Overtime Lawsuit?

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A Los Angeles County unpaid home care overtime lawsuit could have national implications. The Ninth Circuit Court recently ruled that home care providers paid through the state or county can file suit for unpaid overtime citing the Fair Labor Standards Act (FLSA). Prior to this case, workers paid by the state or county to provide home care were exempt from overtime laws at both the state and federal level.

The introduction of a new Department of Labor (DOL) regulation changed the scenario in 2015, but the change didn’t occur without some kickback. The new regulation was set to go into effect on the first day of 2015, but a federal court in Washington, D.C. blocked it. This ruling was overturned later that same year. In response to the legal action, the DOL decided the new regulation would not be enforced until Nov. 12, 2015 (even though it was initially set to go into effect on January 1, 2015).

In California, compliance with the new regulation was pushed until February of 2016. This prompted an LA County home care worker (In-Home Supportive Services (HSS) program employee) to file a lawsuit to recover 13 months of unpaid overtime (overtime that would be due in accordance with the original “effective” date of the new regulation, Jan. 1, 2015). LA County moved to dismiss arguing that the county was simply acting as part of the larger state and under the 11th amendment, had immunity in this situation.

District court ruled in favor of LA County and stated that home care workers could not recover wages from prior to Nov. 12, 2015, the date “enforcement” started. Both parties filed an appeal, escalating the case to the Ninth Circuit Court.

The Ninth Circuit Court judge maintained that the county had 11th amendment immunity and also that home care service providers could file suit to recover unpaid overtime wages earned as of the original Jan. 1, 2015 effective date of the new DOL regulation. The ruling could mean a significant financial blow for LA County since the county currently employs an estimated 170,000 home care workers in the IHSS program. Additionally, the implications could easily reach outside of this particular case in this specific county. The ruling could open the door to further collective actions filed by home care workers employed through various government programs with more collective actions likely to pop up in different counties.

William A. Dombi, President of the National Association for Home Care & Hospice (NAHC) disagrees. He went on record stating that holding county-level government employers liable for overtime wages during a time period when federal court specifically vacated the requirement is unfair. He also noted that any impact would be limited by the two-year limit on filing FLSA actions.

If you have questions about overtime violations or if you need to discuss your rights as an employee under the Fair Labor Standards Act, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik and DeBlouw LLP today.

Ninth Circuit Ignores Legal Written Policy in Favor of Using Statistical Sampling to Certify Class

September 3, 2014 the U.S. Court of Appeals for the Ninth Circuit upheld a certification of class in Jimenez v. Allstate Ins. Co.: 800 nonexempt insurance claims adjusters claimed that they worked overtime and did not receive payment. This is in spite of the company’s written policy stating that nonexempt employees would be paid for all the hours they work.

The Ninth Circuit based their decision on the discovery that three common questions existed:

  1. The existence of an “unofficial” Allstate policy that discouraged employees from reporting overtime.
  2. Whether or not employees’ workloads forced them to work overtime (in excess of eight hours in one day or over 40 hours in one week).
  3. If Allstate’s timekeeping method resulted in unpaid overtime or underpayment for overtime.

The court discovered that the adjusters weren’t responsible for the preparation of time sheets/clocking in and out. Instead the time cards were set to a default of eight hours each day and 40 hours each week. Supervisors could submit “exceptions” for hours that were worked outside of the default schedule. The Ninth Circuit decided that a common question did exist in relation to the question of whether the timekeeping method resulted in unpaid overtime for adjusters.  

The Ninth Circuit also held that liability for the problem and whether or not the employer should have known its employees were working off the clock could be resolved with statistical sampling. Although, it is important to note that the Ninth Circuit did not specify exactly how the issues could be resolved through statistical sampling.  

This decision could provide a basis for a legal standard, making an employer’s lawful written policy not enough to completely insulate the company from class certification questions. The recent decision is a deviation from previous rulings as in the Supreme Court’s decision in Walmart Stores v. Dukes and Comcast Corp. v. Behrend.

If you have questions regarding class certification or the method of timekeeping used at your place of business, contact the employment law experts at Blumenthal, Nordrehaug & Bhowmik for additional information. 

Remember the Raiderettes: Get Appropriate Compensation for Your Work

Employees across the nation should take a page from the Raiderettes this year. When the cheerleaders felt that they weren’t being fairly compensated for their hours, their overtime, business expenses, etc. they didn’t just keep smiling and cheering their team on. They kept smiling, cheering their team on and filed a class action lawsuit against the Raiders.

In addition to above cited failures, the class action lawsuit also claims that the Raiders failed to provide their cheerleaders (The Raiderettes) with appropriate meal/rest breaks. According to court documents, Raiderettes are paid $1,250 per season. When hours worked are taken into consideration, this amounts to less than $5.00/hour. Every Raiderette is required to sign a contract that states they will receive their compensation at the end of the season and that their compensation will be subject to fines.

As a result of the filing of this class action lawsuit, any Raiders cheerleaders from the past four seasons can now come forward seeking damages. In the typical season, the Raiders employ an average of 40 cheerleaders. That means the Raiders’ off-season legal problems are likely to grow. If the court rules in favor of the Raiderettes, any cheerleader on the most recent season’s squad could be awarded lost wages and penalties. Cheerleaders from previous seasons joining the class action lawsuit could be awarded lost wages.

Experts considering details of the case indicate that the subpar treatment of cheerleaders is not limited to the Raiders; it appears other cheerleading squads across the NFL may have similar complaints. They are being encouraged to come forward.

If you find yourself in a situation with less than adequate compensation for job duties expected, unreimbursed expenses incurred as a result of your job, or unpaid overtime - get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. Class action lawsuits aren’t just for cheerleaders.   

Unpaid Overtime: What Type of Plaintiff Are You?

With the continued increase in unpaid overtime lawsuits in almost every industry, employees may find it useful to consider the various types of plaintiffs simply to get an idea of where their own workplace situation lies.

What Type of Plaintiff Are You?

1. Do you find yourself a slave to your handheld device? When you leave work, do you continue to answer questions, delve through documents and conduct brainstorming sessions? Do you often find yourself in arguments with your significant other because they simply want you to attend a family function, complete a household chore or actively involve yourself in a conversation from beginning to end without being interrupted by someone at work that needs you? If so, you could be a “worker with a handheld device” plaintiff. You go to work and you come home, but you never seem to be off the clock. You answer calls, check emails, and basically continue working into the night. Many would classify all this “after hour” work as unpaid overtime.

2. Does your job require a lot of in-office prep in order to go “on the clock?” Do you have to arrive early in order to complete a series of log ins, paper pushing, or mandatory meetings before you can actually “go to work?” If so, you might be an “off the clock work in the office” plaintiff. Many are asking the question (in court) whether or not they should be able to clock in when they get to work to prepare to work or if they are donating the time it takes to perform necessary functions prior to starting the job duties employers are willing to pay for.

3. Do you enjoy the use of a fancy title without the fancy job duties? Many employers have turned to the non-promotion promotion as a solution to overtime. “Promoting” employees without actually giving them managerial responsibilities is a game plan used by employers looking to keep labor costs down. Many managerial positions are exempt from overtime pay laws and requirements. If you found yourself impressed with an empty title at first, don’t feel bad, you aren’t the only one and you could be a “fancy title” plaintiff.

If you have more questions now that you understand the basics behind many of the employment law related suits you’ve been reading about in the news, get in touch with the attorneys at Blumenthal, Nordrehaug & Bhowmik today and get the right answers. 

Employer Response to the Recession Not in the Employee’s Favor

During the recent recession, employees and employers alike were pushed right to the edge. In the aftermath, new trends emerged. Americans found themselves working longer hours – usually for the same or less pay than before the recession hit. This could be seen as logical due to the fact that employers laid off close to 9 million American employees during the recession.

The problem is that all the logic of this solution lies on the side of the employer. Many employees are now starting to strike back through their legal system. Since the recession’s peak in 2008, more employees are filing suit against their employers citing federal and state wage and hour laws. In 2012, the number of lawsuits filed was up 32% in comparison to 2008. Experts indicate that the massive rise in lawsuits filed is due in part to the post-downturn severity that permeated the workplace and created an artificial increase in productivity.

Some of the main grievances cited by workers’ filing suit included:

·      Being forced to work off the clock
·      Misclassification as exempt from overtime pay requirements
·      Misuse of smartphones/technology resulting in constant disruption of personal time by “work” issues

If any of this sounds familiar. You may need to look a little bit closer into your work situation. You could be one of the many Americans struggling for success in a work environment that makes success nearly impossible.

If you find yourself working longer hours with less pay get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. You may need some expert advice to get your career back on a healthy track.