Stericycle Employment Class Action Suit Settled for $2 Million

A preliminary settlement agreement has been reached between the parties of the Stericycle employment class action lawsuit. The suit was brought against Stericycle, Inc., a medical waste company, with workers alleging that the company refused to provide them with required meal and rest breaks, did not pay overtime for overtime hours worked, and failed to compensate workers for time they were required to spend changing into their “work clothes.”

Approximately 985 California employees make up the class. The class was originally represented by plaintiff Sergio Gutierrez. He filed the putative class action in summer of 2014. Since that time, Gutierrez passed away. Two other plaintiffs were put forward as replacements: Kenneth Moniz and Kevin Henshaw. Both are expected to receive up to $10,000 for time and effort spent bringing the action and in exchange for general release of claims. This is in accordance with the proposed $2 million settlement as stated in the agreement.

According to the complaint, Stericycle utilized a practice of “rounding” payroll times which shorted their workers’ wages, and employees were not completely compensated for their time spent dressing in the required work clothing (donning and doffing). The company also allegedly did not include all worker bonuses in their overtime rates, failed to provide compensation for vested vacation payments, and didn’t offer required meal and rest periods to their workers as is required by employment law. 

Stericycle employs staff at more than 28 California locations and handles the collection, processing and disposal of medical waste. Class members include Stericycle employees working out of any California Stericycle location from August 14, 2010 through September 18, 2017. According to the motion for approval, Stericycle offered individual settlement amounts to certain class members (starting in 2015) attempting to minimize the lawsuit’s exposure. Those settlements payments amount to a total of $460,000. Individuals who took money from Stericycle under individual settlement deals will be provided with a reduced portion of the settlement for their worked shifts covered by prior corporate agreements with Stericycle.

Workers involved in the suit also claim that the company uses a point system to reward employees for avoiding incidents in the workplace. Points under the Stericycle system were converted to cash credits that could then be used on Amazon. Plaintiffs contend that these amounts should have been calculated into the regular rates of pay used to come up with overtime pay rates.

If you have questions or concerns about your employer’s overtime calculation, or if you are not being paid overtime in accordance with state and federal employment law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

$140M ERISA Class Case Filed Against Home Depot: Over 200,000 Retirement Plan Beneficiaries Represented

In an ERISA suit filed in April 2018, plaintiffs Jaime H. Pizarro and Craig Smith allege that The Home Depot places employees in poorly performing funds and also causes plan participants to overpay for Robo Investment Advice. The class complaint was filed on behalf of the plaintiffs and close to 200,000 current and former plan participants in the U.S. District Court of the Northern District of Georgia. The complaint was filed against The Home Depot, the 401(k) plan’s investment and administrative committees, and investment advisors from two different companies, Alight Financial Advisors, LLC and Financial Engines Advisors, LLC. The complaint alleged that the Home Depot committed two major violations:

1.     Violated their basic fiduciary duties under ERISA

2.     Abused their employees’ trust through mismanagement of participants’ 401(k) retirement plan

Allegations state that the Home Depot chose a number of funds for the employee 4019(k) that performed poorly and allowed investment advisers to charge their plan participants exorbitant fees. It is also alleged that the company completely disregarded a kickback scheme that was occurring between a plan investment adviser and the plan’s bookkeeper. Estimated losses for employees affected are significant. One respected financial information and technology organization concluded that the average plan participant earned $100,000 less in retirement savings than employees in top-rated retirement plans similar in size. This $100,000 loss is the equivalent of about 18 additional years on the job for each Home Depot plan participant. The plaintiffs seek $140 million in damages.

Home Depot has over $6 billion in assets and is one of the largest 401(k) plans in the country. Counsel for the plaintiffs argue that ERISA fiduciary standards are clear and that while Home Depot should be held to the highest standard, they fall below the lowest standard in this particular case. According to information presented in the complaint, Home Depot’s plan investment options appear to consistently underperform their own benchmarks and those of comparable investment opportunities. Plaintiffs claim this is largely due to the company’s practice to select investment options without due diligence and fail to appropriately monitor performance.

If you need information about ERISA fiduciary standards or if you seek class action status for violations in the workplace, please get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Judge’s Common Sense Ruling Grants Disney Summary Judgment on FCRA Class Claim

In a class action lawsuit against Disney under the Fair Credit Reporting Act (FCRA), the Culbersons alleged that Disney was in violation due to obtaining a background check prior to providing the plaintiff with proper disclosure as well as by taking adverse action without adhering to the proper adverse action process. While the Culbersons were able to obtain class certification, Disney prevailed at summary judgment.

The Los Angeles Division of the Superior Court of California granted summary judgment to Disney on February 9th, 2018 on both claims presented by the Culbersons. The court ruled that while the Culbersons may be able to state a claim for the existence of a technical FCRA violation on Disney’s part, there was no willful violation of FCRA.

The Court disagreed with the Culbersons interpretation of FCRA in connection to the adverse action claim. According to FCRA, if an employer intends to take any adverse action against a potential employee due to information obtained in a background check, they must first adhere to pre-adverse action protocol requiring the employer to give the applicant a copy of the background check and a summary of rights before taking the adverse action.

According to the Culbersons, Disney followed their own coding system for applicants including a category for “no hire” that constitutes adverse action. The categorizing of applicants in the Disney hiring system occurs prior to the submission of a copy of the background check and summary of rights to applicants. The Culbersons argued that this procedure constituted Disney actively and willfully failing to follow an appropriate pre-adverse action process.

The Court disagreed. They found that Disney’s “no hire” code did not actually constitute adverse action because it was only an internal decision. Employers are allowed to make internal decisions regarding potential employees without it constituting adverse action. According to the Court’s line of reasoning, Disney was not in violation of FCRA simply because they used an internal coding system for new applicants including a “no hire” category prior to sending out pre-adverse action letters.

Similarly, the Court held that Disney’s background check disclosure did not willfully violate FCRA. It was not determined whether or not the document included “extraneous” information as the Culbersons claimed. The Court declined to address the technical adherence to FCRA’s rule that the background check disclosure be a separate document solely dedicated to this purpose.

If you were not notified prior to adverse action taken by a potential employer, or if you were not properly notified of a background check being used during a pre-screening employment process, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Victims of Thomas Fire in California File Class Action Lawsuit Against California Utility

Nine plaintiffs allege that Southern California Edison, a Southern California utility company, sparked the biggest wildfire the state has seen in modern history. The joint suit cited negligence in regard to the fire ignited on the evening of December 6th, 2017.

The plaintiffs claim that if the utility company had behaved in a responsible manner, the Thomas Fire could possibly have been prevented. According to the lawsuit, negligence was apparent when the company performed construction near a facility without necessary safety precautions and in an unsafe manner that resulted in nearby vegetation catching fire. It was also noted that the company failed to maintain its facilities (both overhead electric and communications) in a safe manner and that Southern California Edison did not remove trees and/or vegetation that was encroaching on space surrounding utility poles.

The lawsuit also lists two other Defendants: Ventura City and the Casitas Municipal Water District citing their failure to have functioning generators available when they were needed that would have been able to help with water pressure during the fire.

The Thomas Fire left destruction in its wake. 242,000 acres were burned through. More than 1,000 structures of various sizes and purposes were destroyed or left with extensive fire damage. And thousands and firefighters and countless resources were required to extinguish the flames. The Thomas wildfire left more than 100,000 Californians displaced – their homes either destroyed or unlivable.

One major problem during the fight to extinguish the fire was a lack of water pressure being supplied to fire hydrants located in hillside neighborhoods and canyons of Ventura. Plaintiffs find it shocking that the City of Ventura failed to have a working backup generator on hand when it was desperately needed.

The utility company declined to comment on the pending lawsuit as the Cal Fire investigation is currently in progress. Ventura City’s Water General Manager expressed his sympathy for those who lost their homes and/or were displaced by the Thomas Fire and added that the city doesn’t comment on pending litigation, but that they did commend both the firefighters and Ventura Water crews for their response during the emergency.

The Municipal Water District also declined to comment citing the pending nature of the litigation. The lawsuit seeks unspecified monetary damages.

If you have questions regarding corporate liability, or filing a class action lawsuit in California, please contact one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Walmart Class Action Suit: Cashiers Allege Retail Giant Knows Seating is Feasible

In early January 2018, the 80,000 member class of Walmart cashiers alleging that the big box store was in violation of state law due to the failure to provide them with seating on the job made the notable claim that when the company provided seats to cashiers with disabilities, they conceded that seating for cashiers was feasible. This claim that the company has already (through their actions towards cashiers with disabilities) acknowledged that the work of a Walmart cashier permits seating was made in California federal court in support of allegations in their suit.

The class argued that in light of last year’s California Supreme Court ruling that companies are required to provide seats if the work can be done sitting down, the big box store’s obvious acknowledgement that the work can be completed while sitting leaves them with no excuse for not allowing all their cashiers to sit.

When determining how best to accommodate cashiers with disabilities, both Walmart’s safety and compliance department and Walmart’s own Americans with Disabilities Act experts tested and later approved ergonomic reaches and ranges of motion relevant to the work of a seated cashier stationed in the ADA check-out lanes. Walmart chose the specific seat to be offered to disabled cashiers themselves in order to ensure that the situation would be acceptable for both the company’s findings regarding required work and situational necessities.

The action was originally launched by Lead Plaintiff and former cashier, Kathy Williamson, in the Superior Court for Alameda County in summer of 2009. It was moved to federal court at a later date. U.S. District Judge Edward J. Davila granted the motion to certify class in 2012, finding that there was a common nature of work amongst the California Walmart cashiers. He also concluded that a trier of common facts could pinpoint exactly what designated tasks could be performed while cashiers were seated.

The Defendant appealed the ruling to the Ninth Circuit. The appellate court affirmed the decision in June. This was just two months after the state Supreme Court defined the state’s seating rule in the Kilby v. CVS Pharmacy Inc. decision. In this decision, the court determined that employees must be provided with seats if the work they are completing can be done in a seated position even if they aren’t performing the same task all day long. The class of Walmart cashiers argued that the Kilby decision controlled the case and that Walmart has shown on numerous occasions that being seated would not prevent their cashiers from performing their duties (i.e. Walmart productivity study, and study on negative perception in 2007). The case is scheduled to go to trial in fall 2018.

If you have questions about class action lawsuits or if you feel unfairly treated in the workplace, please contact one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP to discuss potential violations.

Young California Startup Logging its 3rd Class Action Lawsuit

A San Francisco, California startup in its early years is logging its third lawsuit. The shopping service, particularly popular with busy, urban professionals, has been repeatedly vilified by some of its own service workers. The company is planning to finalize a $4.6 million settlement in January 2018 to resolve the issues. The California class action overtime lawsuit was filed by employees and independent contractors of Maplebear Inc. (dba Instacart). 

The proposed settlement will resolve issues for which plaintiffs seek resolution including angst over numerous allegations. 

Allegations Made by Plaintiffs Against Maplebear, Inc. (dba Instacart):

• Service Fee Assumed by Consumers to be a Built-In Tip for Drivers
• Workers Collecting Earnings Translating to as Low as $1 Per Hour

Many users of the Instacart service assumed the service fee automatically added to their orders was a built-in tip for drivers, but it wasn’t. Some Instacart workers collected earnings that, after all was said and done, translated to a measly $1/hour. An amount that falls far short of legal minimum wage requirements per laws recognized by the State of California, as well as potential violations of federal overtime laws. 

Instacart was started by Apoorva Mehta, a Canadian and alma mater of the University of Waterloo who spent years working for tech companies such as Blackberry, Qualcomm and Amazon.com before deciding to move on and try his luck at start ups. Instacart was his 21st startup idea. It was aimed at busy, tech-savvy professionals that would benefit from an on-demand grocery shopping platform. The idea quickly gained traction. Orders were placed through the app in a similar fashion to order a car on Uber or Lyft. Instacart had both employees and independent contractors working as “shoppers” who filled orders and delivered them to customers. 

In 2015, Instacart was hit by a class action lawsuit due to misclassification of workers. Eventually, Instacart converted its workforce making most of their shoppers part-time employees with a small number qualifying for benefits. As of today, the startup has 300 full-time employees and tens of thousands of part-time shoppers. 

The company was hit by another class action in 2016, Husting et al. v. Maplebear, Inc. d/b/a Instacart. 

In February of 2017, the company faced another class action lawsuit due to alleged wage and hour violations. 

If you have questions about how to file a class action lawsuit or if you aren’t sure if you qualify for class certification, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Avis: FCRA Background Check Suit Ends in $2.7Million Deal

Avis, popular car rental company, recently agreed to pay out $2.7 million to resolve a FCRA background check lawsuit. According to the suit, Avis improperly acquired and used background checks in order to reject job applications. 

Angela Fuller, plaintiff, originally sought to certify a settlement class of approximately 45,000 people. Fuller now urges the court to grant final approval to the settlement deal, as she believes it is fair to all class members. Separately, Fuller’s lawyers sought $891,000 to cover fees and expenses (1/3 of the total $2.7 million proposed settlement). The final approval hearing will take place on November 28, 2017. 

Fuller originally sued Avis in June 2015. She claimed the company denied her a rental sales position in 2013 because they ran a background check that violated FCRA requirements. Fuller claims that Avis did not appropriately disclose in a form designated for that purpose alone that they might run a background check and access Fuller’s consumer report. Fuller also claims that the company did not provide her with a pre-adverse action notice alongside a copy of the report used to make the decision and a written description of her FCRA rights before they rejected her job application on the basis of her background check. 

The report used during Fuller’s job application process at Avis showed that she had received a $40 ticket for drinking a malt beverage as a vehicle passenger in 1985 in the state of North Carolina. In the complaint filed by Fuller, she states the reported information was incorrect as the ticket was only an infraction, not a conviction. According to FCRA, only convictions can be reported more than seven years after the incident. 

The proposed settlement was initially submitted for approval in March. It was granted preliminary approval at the end of July. According to the terms of the settlement, class members will receive cash payments or other compensation depending on which “group” they are in. The agreement will also offer relief to individuals whose claims against Avis rental company lay outside the FCRA’s two-year statute of limitations. 

A substantial portion of the funds would be paid to anyone who was the subject of a consumer report pulled by Avis to be used during the job application process or for other employment reasons between June 9th, 2013 and April 28, 2016 through a form similar to the one used by Fuller. This group is referred to as the “2-Year Inadequate Disclosure Group.” Members in this group number over 21,000 and would each receive a $45 payment for a total of $968,000. 

The second group will receive the largest individual payments. This group of 590 people was subject to a background report pulled by Avis to whom Sterling was advised to provide a pre-adverse action notice on the part of Avis between June 9, 2013 and April 28, 2016. Each will receive $45 for being a part of the first group as well as an additional $650. 

Other members of the class number about 25,000 people that were all the subject of a consumer report pulled by Avis between June 9, 2010 and June 8, 2013. 601 in this group were also supposed to receive a pre-adverse action notice from Sterling on Avis’ behalf during the same time frame. These claims are similar to Fuller’s but are outside the FCRA’s statute of limitations. All members with claims falling outside the statute of limitations will receive a $20 voucher to apply toward a weekday car rental at Avis. 

Fuller requested an additional $15,000 award for her services as the class representative.

If you have questions about background checks during the employment process or the statute of limitations for claims, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.