Staff Assistance Inc. Faces Claims of Overtime and Meal Break Violations

Blumenthal, Nordrehaug & Bhowmik filed a proposed class action Complaint against Staff Assistance, Inc. (SAI) on December 29, 2014 alleging labor law violations. The suit is currently pending in the Los Angeles County Superior Court. A full copy of the complaint is available online, but a brief summary outlining the main points of the suit follows. 

SAI is a California based company that offers home health, palliative care, caregiving and hospice care services through an extensive network of employees. Licensed Vocational Nurses employed by SAI filed the suit listing allegations of numerous violations of California Labor Laws.

Allegations included in the suit against SAI:

·       Licensed Vocational Nurses were required to work unpaid hours, resulting in a failure to pay both wages and overtime.

·       Failure to provide accurate and complete wage statements (enabling the company to avoid payment of overtime wages).

·       SAI failed to abide by legally required meal breaks – according to California law, employers must provide all non-exempt employees that receive hourly wages with thirty minute meal periods before they complete five hours on the job. Failure to provide an uninterrupted meal period as required results in a penalty of one hour of pay according to the California Labor Code.

·       Failure to provide reimbursement for expenses incurred while employees fulfilled job duties (such as costs of travel/gas when traveling from job site to job site as assigned). This is in direct violation of California Labor Code Section 2802 requiring California employers to indemnify employees for any and all expenses that are incurred while in the course of fulfilling the requirements of their employment.

Allegations made in the suit indicate that the company’s practice to avoid paying overtime wages is based on uniform policy evident in SAI business records.

To get additional information about the class action lawsuit against Staff Assistance, Inc., please get in touch with one of the attorneys at Blumenthal, Nordrehaug and Bhowmik at (866) 771-7099 or get answers online here. The southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik can assist you out of offices in: Los Angeles, San Diego, or San Francisco. Get in touch if you need someone to help you fight unfair business practices, or violations of the labor law in the workplace. 

New Obstacles for California Employers after “Black Swan” Internship Case

July 20, 2015 - California internships in the past have been viewed as a trade-off between well know, desirable employers and young students interested in the industry. The employers get workers and the interested students get experience in their chosen field. Many college students and recent graduates vie for a limited number of highly coveted internship positions in Hollywood and Silicon Valley. Companies offer unpaid positions (internships) and students and new grads vie for the chance to start building a relevant network. The simultaneously beneficial nature of the internship means there has been a limited amount of litigation related to the arrangements. But as of 2013, there’s a ruling that is affecting the symbiotic relationship between employers and interns.

In 2013, a federal District Court in New York found that interns of the movie Black Swan were entitled to pursue a class action. The class action seeks millions of dollars for unpaid wages, overtime, etc. Studios and tech business employers are taking note.

With Glatt v. Fox Searchlight Pictures, Inc., the U.S. Court of Appeals for the Second Circuit attempted to answer the basic question, what is an intern? There are interns across the county, but there is a surprisingly limited amount of actual law related to this particular workplace relationship. The Second Circuit’s decision actually turned on a case from almost 70 years ago regarding railroad apprentices. California employers are discovering that the direction this particular discussion is taking holds both good news and bad news for the future of their workplaces.

The Good News: According to the Second Circuit’s decision, wage-hour cases in relation to interns are rarely subject to resolution in a class action or collection action due to the highly individualized nature of the setup.

The Bad News: Fox, the studio that produced the movie, convinced the court to impose a test to determine who the primary beneficiary of the intern/employer relationship is. This test was to be used to determine whether the worker was an intern or an employee. The court put together 7 non-exhaustive questions for a trial court to consider when attempting determining if a worker is an intern or an employee.

1. Is there a clear understanding that there is no expectation of compensation for work performed?
2. Does the internship offer any hands on training or clinical experience as would be provided by a school?
3. Is the internship a part of the coursework of the “intern”/will they receive academic credit?
4. Does the internship coincide with the academic calendar?
5. Is the internship limited to the time period during which the setup would provide beneficial learning opportunities?
6. Does the intern’s work compliment or replace the work of paid employees?
7. Is there a clear understanding that the intern is not entitled to a paid job once the internship is completed?

The primary beneficiary test is bad news for employers who offer internships with limited educational benefits for interns or for those whose interns are performing work that would be completed by employees in their absence. The opinion of the court indicated that the more menial the work assigned to an intern, the less likely that they would legally be considered an intern. Employers, particularly those in tech and entertainment industries, are finding that they need to rework their model in order to suit this new finding. It’s the first significant appellate opinion on this issue, but it will not be the last. There are other intern related cases on appeal and awaiting decision by other courts throughout the nation. In California, the opinion will probably have a fairly lasting impact. California employers are already hustling to bring their internship programs up to snuff. Interns considered employees might very well begin seeking to recover unpaid wages, overtime, etc. in accordance with the penalties of violating the California Labor Code.

If you are unsure what constitutes a valid internship or if you need additional information regarding being misclassified as an intern instead of an employee, contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Supreme Court to Review Nixed $90M Rest Break Verdict Handed Down by Appellate Court

June 4, 2015 - A $90 million judgment against ABM Industries, Inc. was first overturned by an appellate court and is now to be reviewed by The Supreme Court of California. The judgment was handed down in response to a suit alleging that ABM Industries, Inc. kept a class of security guards “on call” during breaks. Appellate court held overturned the settlement on the grounds that California employment law doesn’t require that employers relieve workers of all their work duties while they are on break.

The damages award was vacated by appellate court in December 2014 and is now set to be reviewed by The Superior Court of California.

ABM Industries, Inc., a facilities management company, allegedly had a policy in place requiring that their security guards carry their radio during break times. This effectively left them on call even during their breaks/rest times employees claim is a violation of California labor law.

The three-judge appellate court panel supposedly voted unanimously to reverse the summary judgment ruling; vacating the $90 million award. The basis for their decision was that while they were required to keep their radios on during their breaks, they used the time to engage in non-work activities. They pointed out that the question at hand was whether or not being “on call” constitutes performing work and their conclusion was that it does not.

ABM feels that the claims that requiring their employees to carry radios during breaks constituted a failure to provide them with adequate rest breaks were “absurd.”

The case began in 2005 with claims made by lead plaintiff, Jennifer Augustus, that ABM’s policy requiring guards to carry radios during break times was in violation of California state’s Labor Code.  In February 2012, the security guards filed for summary judgment requesting that Superior Court Judge John Shepard Wiley award approximately $103 million in damages in response to the allegations.

Judge Wiley’s response came in July 2012 when awarded the security guards $89.7 million in damages on account of improper breaks throughout the 10-year period addressed by the class action and including over 14,000 class action members (past and present ABM security guards).

ABM, of course, appealed Judge Wiley’s decision,  claiming that it was unprecedented and in defiance of both law and reason. They also claimed that letting the ruling stand would end up crippling California companies without even providing any actual benefit to California employees. They claimed that, if upheld, the decision would force California employers to require that employees take their rest breaks outside of work sites and without their own personal cell phones.

The question quickly became one of differentiation between meal breaks and rest breaks and which labor codes applied in which instance. In December, the panel noted that the state’s Industrial Welfare Commission wage order that covers rest breaks did not actually include reference to requiring that employees be “relieved of all” work duties. This in comparison to the section covering meal breaks where it was covered. They concluded that the IWC knew what they were doing when they differentiated between the two. As of January, plaintiffs in the case were still debating their options and planning their next move in regards to the case.

If you need additional information on how to respond to workplace requirements regarding meal times, rest breaks and relief from work duty; contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Workplace Claims: Should Workers Be Paid for Mandatory “Call Ins?”

June 1, 2015 - Victoria’s Secret Stores LLC workers are raising the question of whether or not retail employees who are required to call in to see if a shift is available or not should be paid simply for the mandatory call. It’s a new type of workplace claim that will be put to the test in federal appellate court.

Plaintiffs in the putative class action lawsuit seek payment for mandatory calls in their workplace. The petition for interlocutory appeal to the 9^th U.S. Circuit Court of Appeals followed a rare grant from U.S. District Judge George H. Wu to file due to what he referred to as the “novelty” of the legal question being presented.

Since the only precedent for the case is Judge Wu’s original dismissal followed by his grant to file for interlocutory appeal, the 9^th Circuit holds a lot of power in their hands. They will be the deciding factor. The employment law industry will either see this new and “novel” issue nipped in the bud or they could see an entirely new and fertile area for workplace grievances leading to worker lawsuits. This case could result in a new area of claims for employees as many large chains have call in policies for their workers.

The lawsuit was filed by Mayra Casas and Julio Fernandez. The suit is based on California’s reporting time laws requiring a minimum amount of pay when an employee is required to report to work, but they aren’t needed or no work is available at the appointed time. California is one of eight states with similar reporting time laws (including New York). The California reporting time laws guarantees employees will receive up to 4 hours of pay when they report for an 8-hour shift that is cancelled, resulting in the employee being sent home without working. Up until this point, the focus has been on employees who physically report in to their workstations. Whether or not similar guarantees should be in place for call in claims is the current question.

In the current lawsuit between Victoria’s Secret Stores LLC and Casas/Fernandez, it has been pointed out that employees abiding by the retail chain store’s call in policy must arrange their entire schedule around the need to call in 2 hours prior to a potential shift. Sometimes employees are required to do so up to five times in one week. Legal representation for the plaintiffs are pointing out the difficulties this poses in regards to scheduling daycare, etc. as proof of the need for a change.  

For additional information on California workplace claims and California reporting time law, contact the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Wrongful Termination Suit: Former VP Files Suit Against Blue Shield of California

May 20, 2015 - Blue Shield of California was named as the Defendant in a wrongful termination lawsuit filed by a former chief technology officer (CTO). Aaron Kaufman, former CTO, claims he was fired one day prior to receiving a $450,000 bonus because he raised concerns about a costly contract. The former CTO claims that he repeatedly recommended that the insurer sign a fixed-price $1.6 million contract for a “Veritas data project”. He claims his repeated recommendations were denied by Blue Shield CIO, Michael Mathias, who instead opted in December 2014 for an open-ended $4.6 million contract through a different vendor.

Kaufman claims that at one point he was in Mathias’ office making the recommendation and that Mathias responded insisting that Kaufman leave his office and never bring up the $3 million cost savings issue again. According to Kaufman, Mathias did not provide an explanation for why he seemed beholden to the other, overpriced vendor.

Kaufman’s employment as CTO was terminated on March 11^th. The company cited alleged violations of Blue Shield’s travel and expense policies. The termination was completed the day before Kaufman was due to receive his $450,000 bonus (earned as of December 31, 2014).

A spokesman for Blue Shield disagreed with the complaints made by Kaufman, but didn’t want to provide additional comments regarding the suit.

Recently, criticism that Blue Shield of California behaves like a for-profit insurer has been rampant. The group even lost their tax-exempt status. In 2014, the company posted $13.6 billion revenue. They hold over $4 billion in their reserves. A former executive, Michael Johnson, has called on Blue Shield to return about $10 billion in public assets to the state accord to recent stories in the media. The organization also faces heavy pressure to lower its premiums for Californians.

If you need additional information on wrongful termination call or email the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Discrimination Allegations: Pregnant Women Sue Raley’s

May 7, 2015 - Luciana Borrego, new mother to a baby boy born on Nov. 13, 2013, claims that she lost her job in Ukiah at Raley’s due to her pregnancy.

Raley’s is a part of a West Sacramento-based retail grocery store chain. In June of 2013, Borrego recalls advising her managers of her pregnancy (five months before her baby was born). On July 11, approx. one month later, she came to work with a doctor’s note advising her supervisors that she should not be lifting anything over ten pounds. Within an hour, Borrego claims she was called to the director’s office at the store and advised that she needed to take unpaid leave.

She was advised that she needed to go home, as the company didn’t accommodate pregnant workers even with the doctor’s note. Ms. Borrego claims she was devastated by the treatment she received. She never went back.

Ms. Borrego is one of two plaintiffs in a lawsuit filed in Sacramento Superior Court against Raley’s. The suit contains allegations that the policy mentioned by Borrego’s director that Raley’s didn’t accommodate pregnant workers is unlawful. The company policy makes reasonable accommodations for workers injured on the job, but fails to provide any type of accommodation for pregnant workers.

Raley’s spokesperson responded denying the accusations and objecting the suggestion that they don’t care about all their team members, and in particular, their pregnant team members. They continued by indicating that Raley’s has been known to go above and beyond legal minimum requirements in this area. They are known as a strong, family owned business and, as such, it’s important to them that people see them as appreciative of the role women play in their workplace. They will defend themselves against the charges being brought by the plaintiffs.

Raley’s (also operating under the names Bel Air Markets, Nob Hill Foods and Food Source) operate more than 120 supermarkets in Northern California and Nevada.

The plaintiffs are seeking class action status for current/former Raley’s California employees who were denied acceptable accommodations for pregnancy related needs over the past four years.

If you are interested in discussing California laws protecting pregnant women in the workplace, please contact your southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Sex Bias Class Action Sued Filed Against Twitter

March 27, 2015 - After complaining that Twitter’s sexist company policies were arbitrary and unjust, a software engineer named Tina Huang was fired. She claims she was fired in retaliation for her complaints and filed a class action. The previous Twitter software engineer claims she was one of Twitter’s earliest hires, but that she was overlooked for/denied promotion opportunities because Twitter discriminates against women. She claims that Twitter management fails to promote equally qualified or even more qualified women to leadership positions in engineering.

In her complaint, Huang points out that Twitter’s promotion system creates a glass ceiling for women that can’t be explained. She claims it does so by:

• The company has no meaningful promotion process for engineering leadership positions.
• No company approved, published criteria for promotion, internal hiring, advancement, or application processes.

Ms. Huang started work with Twitter in 2009. At that time, the company had less than 100 employees. She also claims that its dramatic growth in the time since that point is due in large part to the work of its early hires. Many of the early hires now hold senior positions within the company’s structure. Without exception, male employees hold all of those senior positions within the software engineer department.

Huang also claims that the sexual bias problem is one that has been recognized by Twitter. According to the complaint filed by Huang, Twitter has conducted internal diversity studies focusing on barriers blocking female employee advancement. There is a company-wide, pervasive problem with discrimination and acknowledged gender disparities. In an attempt to address the company-wide problem, Twitter recently put in place bias mitigation training throughout the entire company.

During discussions of the acknowledged gender disparity issue, senior management has been known to say that Twitter will “continue improving its ‘diversity standing’…and ‘move the needle.”

In 2013, Huang was put in for a promotion in the software engineering division by her immediate supervisor. Huang claims this is the only method by which to obtain a promotion at the company. The move would have been a critical promotion in Huang’s career. The job would have meant a shift of her focus from coding and individual projects to a leadership role requiring company collaboration. It would also mean access to meetings with high-level management. Huang had provided years of impressive service and work to Twitter. Despite these years on the job, excellent peer and supervisor work evaluations, an absence of any criticism or disciplinary issues, Huang was denied the critical promotion without any explanation. While no official reasons were provided (even when requested by Huang), she was able to pinpoint rumors about her “aggressiveness” and “lack of high quality code” on a particular work project.

In response to her objections to the gender inequality in Twitter hiring and promotion history, she was advised by corporate to take personal leave while further investigation was handled. She then met with the CEO, Costolo, and HR, but they did not provide her with any information about an investigation into her complaint. Her assignments were given to co-workers. Her co-workers were told that she was on personal leave even though they already knew about her complaints regarding Twitter’s promotional process. Huang claims in addition to the original sexual bias, her ability to lead was also undermined by Twitter’s corporate response to her complaint. After three months, she felt she was left with no other reasonable choice, but to resign for the sake of her career.  

Huang feels that Twitter intentionally caused objectively intolerable working conditions and then in full awareness allowed them to continue. She is seeking class certification, her lost wages and benefits, full vesting of her stock options, as well as damages and punitive damages for sex discrimination, retaliation and wrongful termination.

For additional information and answers to specific questions about sexual bias on the job, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik.