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.

The Hooters Sexual Harassment Lawsuit Settlement

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In recent news, two male employees at a Hooters restaurant claim they were sexually harassed by a male boss while on the job and then retaliated against when they complained about their boss’s alleged misconduct. Both filed sexual harassment lawsuits against the Hooters restaurant chain. The first plaintiff, Paul “PJ” Cagnina, obtained an undisclosed settlement in May 2017. The second plaintiff, Scott Peterson, appeared to come to a settlement regarding the case in July 2019. 

On July 16th, Hooters attorneys filed paperwork with the Los Angeles Superior Court stating that the part of the case filed by Scott Peterson was resolved. No terms of any settlement were divulged.

The original suit was filed in March of 2016 seeking unspecified damages and a court order requiring Hooters to stop allowing sexual harassment and retaliation on the job. In court papers, the company stated that they have a strict policy the forbids any form of sexual harassment, discrimination or retaliation and the attorneys for the defendant argued the plaintiffs did not suffer any damages.  

Peterson, one of the plaintiffs in the case, claimed his boss touched him inappropriately, talked about him in a sexually demeaning way while they were in meetings with Hooters general managers, and sent photos to the plaintiff of a female co-worker claiming to have slept with her.

Cagnina, the other plaintiff in the case, claimed that his boss threw him down on the ground in the parking lot after a bikini contest at the Hooters in Costa Mesa and engaged in a simulated act of sex with the plaintiff in front of other people still on site. Cagnina also claimed that his supervisor repeatedly tried to get him to go skinny dipping with women who worked at the restaurant who were Cagnina’s subordinates on the job. Cagnina claims that when he was being honored as a new general manager, the boss publicly referred to unflattering and sexually demeaning nicknames like PGay and “cagina.”

Both plaintiffs claimed they experienced retaliation in the workplace after they complained about the boss’ alleged behavior with Peterson claiming he was ultimately fired as a result of complaining about the misconduct.

If you need to file a discrimination lawsuit or if you have been wrongfully terminated, the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch today so we can help you protect your rights.

Recent News Labels Litigation Trend “Shakedown” Lawsuits

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In response to a recent uptick in the number of lawsuits – particularly employment law claims against restaurants, the restaurant industry is scrambling to come up with standard advice for owners and managers in the industry. In response to what they are labeling "shakedown" lawsuits, restaurant owners and managers are encouraged to employ precautions and counter strategies to mitigate and avoid lawsuits. Corporations and business owners desperately want to avoid the costs of paying out thousands or even millions in settlements due to class action employment lawsuits.

Common Alleged Violations Cited in Class Action Employment Suits Against Restaurants:

Discrimination Lawsuits: While many businesses have inclusive company policies, diversity standards, clear, supportive LGBTQ policies, etc. this does not guarantee that managers and supervisors will behave in accordance with stated company policy. Many companies with positive, inclusive, and diverse standards supported by written and enforced company policy still face harsh allegations due to other employees, supervisors and managers who are acting against company policy as a representative of the company.

Fair Credit Reporting Act Lawsuits: Employers are required to offer job applicants and employees with notice when information is collected through third party credit reporting agencies including credit reports, background checks, prior history info and ownership asset reports. As the general public becomes more aware of their rights to know prior to having their data accessed, the number of lawsuits citing fair credit reporting violations increases.

Fair Labor Standards Act Lawsuits: Fair Labor Standards Act (FLSA) lawsuits focus on wage and hour violations with the most common being overtime violations and minimum wage violations. One of the main issues that crop up when employees claim FLSA violations is misclassification. Employers seeking to save money and maximize their workforce sometimes willfully deny their workers benefits and pay they have a legal right to by misclassifying them as exempt or as independent contractors.

If you have been misclassified on the job, please get in touch with Blumenthal Nordrehaug Bhowmik De Blouw LLP. Our employment law attorneys have the resources and experience companies fear in litigation.

Jones Day Gender Discrimination Case Only Gets Bigger

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Recent news in the Jones Day gender discrimination indicates the case will only get bigger as a former New York associate came forward. The lawsuit filed by former Jones Day associates has now spread to New York. The original suit was filed by two plaintiffs and four anonymous Jane Doe plaintiffs. The plaintiffs alleged that Jones Day supported a “fraternity culture” and that their “black box” compensation system resulted in women receiving significantly lower pay than male counterparts. Jessica Jardine Wilkes previously spent time working at the Jones Day Menlo Park, California office and joined the suit a few weeks ago. More recently, Katrina Henderson joined the suit.

Henderson is the latest former Jones Day associate to come forward and the first to come forward after working for a Jones Day office in New York. She spent over two years working for Jones Day before leaving for a job in-house. She appears to have been employed by the firm’s New York office from October 2013 through July 2016. At that point, she joined Pixar Animation Studios starting August 2016. She recently moved from Pixar to Amazon Studios in Santa Monica, California.

The parties continue to argue over whether or not the Jane Doe plaintiffs should be allowed to retain their anonymity. The firm insists the plaintiffs should reveal their names, but the plaintiffs assert they should maintain anonymity for the duration of the litigation. One plaintiff compared her situation to that of a whistleblower.

If you have are experiencing gender discrimination on the job or if you need to file California gender discrimination lawsuit, please get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP so we can help. With numerous locations, including our San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago employment law offices, we have the resources, the knowledge, and the experience to successfully advocate for workers and protect you from labor law violations.

Will California Be the First State to Offer Black People Protection from Natural Hair Discrimination in the Workplace?

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Many black Angelenos see Mahogany Hair Revolution, the natural hair salon run by Kari Williams in Beverly Hills, as a refuge. It is a particular refuge for black Angelenos who are pressured to change their hairstyle to keep a job or advance in the workplace. Williams has had customers come in to request she cut their locs (short for dreadlocks) because their boss or supervisor told them the hairstyle was unacceptable. Other customers can't remember what their natural hair looks like because they haven't worn it in so long. Williams supports the proposed state legislation that could make California the first state to offer legal protection to black employees experiencing natural hair discrimination in the workplace.

The proposed legislation, referred to as the CROWN Act, passed the state Senate in April and was recently approved by the state Assembly. The legislation would outlaw policies that punish black employees or students for their hairstyles. Supporters say the bill would create a respectful and open workplace for natural hair (the bill's acronym, CROWN). The CROWN Act would extend the anti-discrimination protections included in the Fair Employment and Housing Act and the California Education Code to add hair texture and hairstyles. It would also amend California government and education codes to protect from discrimination based on traits that are historically associated with a race (like hair texture or hairstyle). The Act would effectively make targeting a hairstyle that is associated with a particular race would be legally defined as racial discrimination.

If the Governor signs the bill, it will provide legal protection for people in the workplace and K-12 schools by prohibiting enforcement of grooming policies that have a disproportionate effect on people of color. The change would affect policies that ban certain hairstyles like Afros, braids, twists, cornrows, dreadlocks, etc. Black employees have filed numerous lawsuits nationwide claiming to have lost their jobs or faced discrimination in the workplace due to their hairstyle.

Lawmakers in New York and New Jersey proposed legislation modeled after the CROWN Act in June.

If you are experiencing workplace discrimination or if you need to discuss how to file a California discrimination lawsuit, get in touch with the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw L.L.P. With conveniently located employment law offices in San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange, and Chicago; we are here when you need help.

California Private Colleges and Universities May Be Forced to Move to a Time-Card System for Adjuncts

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Unless a legislative fix is successful, California's private colleges and universities may be forced to move to a time-card system for adjuncts. California legislation regarding the exempt status of adjunct workers has the backing of both the Association of Independent California Colleges and Universities and the Service Employees International Union – making this a rare instance in which colleges/universities and their adjuncts are in complete agreement. If the litigation is successful, it will prevent numerous private colleges and universities from requiring adjuncts to complete time cards as a means of avoiding labor law violations on overtime. California's public institutions are not affected as they are generally unionized.

Numerous colleges and universities facing faculty overtime violation lawsuits in recent years have reached settlement agreements with the plaintiffs. For example, Stanford University provided a $900,000 settlement in 2018 due to a class-action lawsuit on behalf of continuing studies program instructors. After attorney's fees, each adjunct involved was entitled to a partially taxable award of $1,417. Kaplan University also settled a similar suit. Other colleges and universities facing similar legal actions settled privately.

The implementation of a time-card system or other documentation of adjunct working hours was private colleges and universities' response to the new trend in employment law actions. Faculty groups insist that time cards are not a functional solution. Not to mention that requiring the completion of labor-style time cards of adjuncts could be viewed as insulting and wrong. Many adjuncts find the idea both inconvenient and humiliating.

The proposed litigation, AB-1466, would clarify when an adjunct at an independent institution would qualify as exempt under wage and hour law. The bill would specifically classify employees working in education as exempt if they offer credit-bearing instruction at independent colleges or universities, meet the existing legal test determining whether or not their work involves advanced knowledge, and they receive salary compensation (equivalent to no less than two times the state minimum wage at full-time employment or no less than two times the state minimum wage times the hours of service). The bill would also provide additional clarification (and a more generous definition) of hours of service.

If you need to discuss overtime pay violations, please call one of Blumenthal Nordrehaug Bhowmik De Blouw LLP's various locations: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago. We are ready to be your advocate as you seek resolution for labor law violations in the workplace.

Property Appraisers Group Denied Certification of Class in Misclassification Suit Against Major Insurers

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California’s 2nd District Court of Appeal affirmed a trial court ruling denying certification of class for plaintiffs in a misclassification lawsuit against major insurers: Allstate, Farmers, North American Compass Insurance Service Group, CIS Group, Advanced Field Services, and Capital Personnel Services. The ruling was a significant win for insurers and service companies as the legal team was attempting to bind a group of 1,550 California property appraisers together to sue for alleged misclassification (McLeery et al. v. Allstate).

The representative plaintiffs in the suit alleged that the two insurance providers and the various service companies intentionally insulated themselves from labor laws by contracting services for property appraisal upon policy creation or renewal rather than hiring appraisers as employees. The time frame cited for the allegations is 2005-2008.

The litigation has been ongoing for years, and legal counsel for the defendants does not predict an end to the proceedings anytime soon. The plaintiffs in the case may appeal the California Supreme Court decision or continue forward with separate lawsuits naming the plaintiffs individually. 

A second lawsuit (Lunde v. Farmers Group) was filed by a different group of 106 appraisers in Los Angeles County Superior Court in 2014 and has been stayed pending the outcome in the McLeery case.

The most recent ruling marks the second tie the appellate court stepped in to answer a procedural question for the McLeery suit. Initially, the plaintiff’s plan to assess damages classwide through statistical analyses of results from an anonymous, double-blind survey sampling class members, but the 2nd Circuit reversed the decision and ordered the trial court to conduct the evaluations according to the proposed plan.

A survey expert, Krosnick, was hired by the plaintiffs to design a method of determining liability and damages. The study consisted of 45-minute interviews with proposed class members. The defendant’s experts questioned the scientific validity of the survey claiming that it invited “significant error” by asking participants to provide precise recall of events up to 10 years in the past. The court found that the survey results failed to specify why workers skipped meal or rest breaks (the nature of their work or their preference), whether inspections were performed by Allstate or Farmers, and failed to address work-practice variations amongst inspectors. The 2nd District upheld the trial court’s decision not to certify class due to the proposed anonymous survey. The courts agreed that the plaintiffs’ case relied on showing that insurance carriers and service companies conspired together to violate labor laws, but the survey failed to do so. The case seems to lack a fair, manageable method of establishing liability.

If you have questions about filing a class action lawsuit or if you have experienced labor law violations on the job, the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP can help. Get in touch with the employment law office nearest you: San Diego, San Francisco, Sacramento, Santa Clara, Los Angeles, Riverside, Orange or Chicago.