California Supreme Court Says Employers Should Provide a Seat

The California Supreme Court recently found that workers whose jobs can be done at least in part while sitting, should be forced to stand by their employer. Many employees will agree that fulfilling a job while standing can take its toll – particularly when discussing long term employment. The Supreme Court’s decision regarding suitable seating cases will allow employees to literally take a load off by requiring employers to give their workers chairs.

Bowlin, a member of the class action lawsuit against CVS, cited long term health issues due to standing (including varicose veins, etc.) The class action suitable seating lawsuit against CVS, popular pharmacy chain, is one of dozens filed throughout California in the last several years. All cite allegations against employers that require their employees to stand. The Supreme Court ruling was unanimous, clarifying labor law in a way that will make it fairly difficult for employers to deny their workers with a chair on the job.

Justice Carol A. Corrigan explained more regarding what employment situations fall into this category: when an employee spends a large part of the workday in a single spot completing job duties that can be done while sitting down (even if other job duties need to be completed in a standing position).

The “totality of the circumstances” determines whether or not a worker is entitled to have a seat on the job. This totality of circumstances consists of: whether a job duty can be completed from a sitting position, whether the seated employee would disrupt job performance, and the physical layout of the workplace and its suitability for seating. Having said that, the court also stated that employers should not design workspaces to “further a preference for standing” and that, in fact, employers should consider whether or not the workspace could be reasonably rearranged in order to accommodate a chair.

This clarification of employment law is expected to affect almost every industry across California. Employers will no longer be able to legally require employees to stand on the job all day in a fixed spot if the tasks required for the job can be completed while the employee is seated.

If you have questions regarding how this clarification of employment law will affect your workplace, please get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik.

Employment Law History: California Increases Minimum Wage

California is making history again, but this time the history will be recorded in the legal treatises studied by employment law attorneys. When the governor signed Senate Bill 3, California became the first state in the nation to increase the minimum wage to $15 per hour by 2022. This increase will provide six million California residents with increased earnings.

Many cite this increase as a big step in the fight for gender justice as six out of every ten minimum wage workers in the state are female (with women of color being disproportionately represented in the group). 23% of minimum wage employees in the nation are women of color. In comparison, women of color only represent 16% of the American workforce as a whole. More than 1/3 of California’s minimum wage employees also have children under their care for which they need to provide financial support.

The numbers regarding the minimum wage worker demographic in California made Senate Bill 3 a lead bill in the 2016 Stronger California campaign that many have heard discussed. The campaign was chaired by Equal Rights Advocates with top advocacy coalitions acting as co-lead. It has become known as a historic bid to ensure that California’s women and communities as a whole will enjoy economic security. This 2016 Stronger California campaign also enjoyed a celebratory victory in 2015 when the California Fair Pay Act was passed, creating the strongest equal pay law in the United States.

Many California minimum wage workers see the increase as a tremendous help that will drastically alleviate financial problems associated with low income. Today’s minimum wage workers tend to worry check-to-check, work multiple jobs, and stress about having enough to cover the bare necessities. This makes Senate Bill 3 very popular amongst this group. They see it as a positive move in the right direction and hope that the positive movement will continue. There’s still more work to be done in order to ensure economic security. The Stronger California campaign also works toward policies and budget changes to address issues with: poverty, accessibility of child care, promotion of fair pay and job opportunities, and family friendly employment.

If you have questions about California’s Senate Bill 3 or the 2016 Stronger California campaign, please get in touch with one of the experienced employment law attorneys at Blumenthal, Nordrehaug and Bhowmik. 

Chipotle Employee Claims of “Sexually Charged Atmosphere” Result in Lawsuit

A former Chipotle employee, Ariana Castaneda, filed a lawsuit against Chipotle claiming that the managers at the Woodland Hills store where she was employed created a “sexually charged atmosphere” and behaved inappropriately in the workplace, harassing her regularly. Castaneda claims that her Chipotle managers intentionally ordered her uniform shirt too small repeatedly. She worked for Chipotle from December 2013 through February 10th, when she was fired. She was employed as a lead kitchen worker at the restaurant on Canoga Avenue.

Sexual Harassment: harassment in the workplace (or in any professional or social situation) that involves the making of unwanted sexual advances, obscene remarks, obscene gestures, etc.

Discrimination: unjustly treating or treating prejudicially different categories or types of people. It is most commonly referenced in relation to negative treatment in the workplace due to race, age, religion or sex.

Workplace Retaliation: action on the part of co-workers, supervisors or employers to make an individual in the workplace afraid to complain, stand up for their rights or seek legal recourse. Retaliation is often confused with harassment and creating a hostile workplace or environment, but it is specifically aimed at those who have information or situational knowledge that others do not want reported.

Wrongful Termination: when an employee’s employment or contractual agreement for work is terminated by their employer under circumstances where the termination breaches terms agreed on by contract, terms of employment or by law.

Castaneda’s lawsuit also claims that she was not the only one being sexually harassed. She states that the four managers on site sexually harassed other female workers at the southern California Chipotle location and that they even used the security cameras to spy on female customers that they through were attractive. She seeks unspecified damages on allegations including: discrimination, retaliation, sexual harassment and wrongful termination.

The plaintiff named Chipotle Mexican Grill, Inc. along with the four managers in the Los Angeles Superior Court lawsuit. She claims that her position at the restaurant required her to wear a certain uniform, but that her black uniform shirt was purposely ordered too small by the managers. Castaneda, when she complained about the shirt being too small and requesting a larger size be ordered was asked by a manager if it was because her [breasts] were too big. While another shirt was ordered, it was also too small. Castaneda also alleges that one of the Chipotle managers would forcibly hug her and also touch her underneath her shirt when his hands were cold from holding ice or cold drinks, etc. She also cited inappropriate comments managers made about other female employees of a sexual nature, mocking comments made to her personally due to a negative remark that was made on the popular review website, Yelp.

If you are suffering from sexual harassment in the work place or fear that you were wrongfully terminated, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik so we can help you. 

Caretaker Sues Betty White for Unpaid Wages and Rest Period Violations

In recent news, Betty White is being sued by a former caretaker. The caretaker turned plaintiff was a long time, live-in employee named Anita Maynard. Maynard filed suit in Los Angeles alleging that Betty White did not pay her overtime and did not allow her breaks as required by California state labor law.

Betty White is most well known for her work on the TV show, Golden Girls. The popular TV show featured four older women who lived together in Miami, Florida that were experiencing the joys and pains and annoyances of their “golden years.” Betty White played the role of the spacey, but sweet Rose alongside Dorothy, Blanche and Sophia (Dorothy’s mom in the show). The show is widely known and many recognize it from the theme song along, “Thank You for Being a Friend.” The actress is now 94 years old.

Maynard claims that she was a live-in domestic worker for Betty White for over 20 years. During this time, she alleges that White did not provide her with payment for overtime hours even though she put in more than 14 hours on a typical day. Maynard’s complaint, includes additional allegations:

·       That White required Maynard to work six days/week without overtime rates for the sixth day.

·       That since discontinuing employment on March 11th, Maynard has not received all of her earned wages or vacation pay due.

·       That she earned less than the legal minimum wage according to California state labor law.

Maynard seeks wages owed, penalties and attorney’s fees through the court. A representative for Betty White responded to the legal actions by stating that Betty White has worked with thousands of people throughout her lifetime and none of them have anything negative to say about the well-loved actress. She went on to describe Betty as a kind person who is simply nice to everyone she runs into and will continue to make her purpose in life making other people happy.

If you need additional information on what qualifies for overtime pay and/or how to recognize violations of wage and hour laws, please contact one of the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Dick’s Sporting Goods Facing Class Action for Texting Program

A proposed class action against Dick’s Sporting Goods, Inc. has been filed in California federal court. Accusations that the sporting goods retailer violated the Telephone Consumer Protection Act (TCPA) allege that the company sent text messages to consumers after they had opted out of the subscription based alert advertising program. Plaintiff, Phillip Ngiehm, states that he originally agreed to participate in the marketing program, but that he opted out in December 2015 by texting the word “stop” as instructed. According to the terms of the program, this would result in a halt of messages from the program to the subscriber – effectively removing him from the subscriber list.

Dick’s acknowledged that they received the termination of his consent to receive automated text ads, but the advertising messages continued. In fact, Ngiehm received an immediate response when he texted “stop” in order to halt his involvement in the program:

“You have been unsubscribed and will no longer receive messages from us. Reply ‘help’ for help.”

After receiving this acknowledgement, he received eight text messages. This led to the filing of the lawsuit that Dick’s Sporting Goods is currently facing. Plaintiff’s attorney states that all the SMS texts that were received by the plaintiff after he opted out as instructed, were sent without his consent and were thus unauthorized. This leaves the messages in violation of the TCPA. He seeks certification of a national class of people who were in receipt of messages from Dick’s Sporting Goods that were unauthorized. He estimates that the number of eligible class members could be in the thousands. The suit will seek statutory and treble damages as well as an injunction to prohibit Dick’s Sporting Goods from distributing unwanted advertisements by text. The suit will also seek attorneys’ fees and associated costs.

If you have questions regarding class action status and what it means to be eligible for class action membership status, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. We can assist you in determining how California labor law applies to your situation. 

CVS $7.5M Wage Deal to Cover One Thousand Pharmacists

Final approval has been granted for the $7.4 million settlement between CVS Pharmacy, Inc. and the class of over 1,000 pharmacists. Pharmacists lodged allegations of unlawful denial of overtime pay when working over six days consecutively. The final approval hearing was held in Los Angeles Superior Court with Judge Elihu M. Berle granting the final approval for the proposed settlement.

Pharmacists included in the class action work or previously worked in three different CVS California regions. They filed a claim that they worked the “seven-day week,” but were not paid overtime. The judge noted that the plaintiffs believed they had viable claims, but that they were also aware that CVS did not believe their practices were in violation of wage and hour laws. The judge felt the settlement was fair and reasonable and that the plaintiffs were appropriately weighing the benefits of prevailing against risks posed by trial and potential delays of appeals, etc.

No class members objected to the settlement. Only seven class members opted out. Claims were filed for 85% of workweeks at issue in approving the settlement/deal. Plaintiffs’ request for attorneys’ fees of $2.49 million was also approved by the judge.

The three suits were filed in October 2013 alleging violations of California labor code on the part of CVS pharmacy due to requirement of pharmacists working over six days in a row without payment of overtime (time and a half for any hours worked on the seventh day of consecutive work). Preliminary approval was granted by Judge Berle in July after parties used the help of a mediator to come to a tentative agreement.

The agreement will result in each class member receiving approximately $2,846. The actual amount will depend upon the number of workweeks the pharmacist worked during the time period designated by the class action.

If you have questions regarding the class action process or any other southern California employment law issue, please get in touch with the attorneys at Blumenthal, Nordrehaug & Bhowmik today. We can answer your questions and provide you with the legal counsel you need. 

$12M Lyft Settlement: Company Refuses to Classify Drivers as Employees

In late January 2016, Lyft, a ride-hailing service out of California, agreed to pay a $12.25 million settlement in order to provide extra job security to members of a proposed class including both current and former drivers. The drivers filed suit against Lyft in California federal court. One of the more interesting terms of the settlement agreement for many is Lyft’s insistence that drivers will still NOT be classified as employees.

The suit filed against Lyft is just one of several that popular “ride” services are dealing with in both state and federal courts. Another popular ride service that is handling similar suits is Uber Technologies Inc. The numerous suits in the last few years against these types of ride providing companies seek a clearer delineation between employees and independent contractors (which is the current classification of drivers at such companies). In the suit recently settled against Lyft out of California federal court, the company made a few additional concessions that were included in the proposed settlement:

• Lyft conceded the right to terminate drivers at will enabling drivers to “turn down” rides without fear that they will lose their ability to drive for the company.
• Lyft agreed to create a “favorite driver” option for riders to use to designate their favorite drivers – providing drivers with the opportunity for additional benefits.
• Lyft conceded paying costs to arbitrate driver grievances.
• Lyft conceded the implementation of a prearbitration process. 
• Lyft conceded the provision of drivers with additional “rider” info (passenger ratings, etc.)

Lyft representation announced that the company was pleased with the resolution of the matter and that opportunity the settlement terms presented to preserve the flexibility of the drivers that is necessary for them to control their own driving schedule on the platform while still providing consumers with affordable, safe transportation as originally intended. The company designed their platform as a symbiotic relationship between driver and rider. The driver controls when they drive, where they drive and how far they drive and consumers get home safely.

The original plaintiff, driver Patrick Cotter, filed suit against Lyft in September 2013. He alleged that the company’s classification of drivers as independent contractors was inappropriate as they were treated like employees. He also alleged that the company’s policy to “skim” 20% of drivers’ tips as an “administrative fee” was in violation of California labor law. He cited company required inspections of drivers’ vehicles (personal cars) and insurance policies, the company’s right to fire at will, mandatory policies and training, etc. as actions more suited to the role of an “employee” according to California labor law and that drivers were misclassified as independent contractors. The suit was originally proposed as a nationwide class action, but at a later date was limited to California drivers.

The counsel for the plaintiffs saw the terms of the proposed settlement as positive even if they did not attain all that they hoped for with the legal proceedings. Lyft did not agree to reclassify drivers as employees as other “sharing economy” services have recently (i.e. Shyp, Instacart, etc.), but they did agree to make changes that will provide significant benefits to their drivers.

If you would like additional information about misclassification of employees as independent contractors, we would love to discuss it with you. Contact one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik today.