$1.75M Settlement to Resolve Ulta Off-The-Clock Work Claims

In recent news, Ulta agreed to a $1.75 million settlement to resolve four class-action suits claiming multiple California wage and hour law violations.

Tellez, et al. v. Ulta Salon, Cosmetics & Fragrance Inc.:

The case, Tellez, et al. v. Ulta Salon, Cosmetics & Fragrance Inc., No. 18-cv-2480 (S.D. Cali. February 10, 2020), included claims that Ulta required employees to undergo security checks and other job duties off the clock. Ulta allegedly did not provide non-exempt employees with timely meal or rest breaks as mandated by employment law. Plaintiffs in the case claim unpaid overtime, unpaid minimum wage, failure to provide mandated meal breaks and rest periods, failure to provide employees with timely wages, failure to provide detailed wage statements, and failure to reimburse for business expenses. The federal trial judge signed off on the settlement agreement on February 10, 2020. 

The Settlement Agreement: Tellez et al. v. Ulta 

The settlement agreement proposed to settle the case between Tellez and Ulta Cosmetics will cover 23, 767 class members. The settlement would result in an average estimated payment of $44.38. The most substantial single amount to a class member in the case would total $222.45. 

Other Employers Called to Task for Off-the-Clock Work: 

Ulta Cosmetics is not the only large employer to face legal trouble after allegedly requiring employees to complete “off-the-clock” work. Big Lots Stores agreed to a $7 million settlement in late 2019 to resolve a post-shift waiting time class action lawsuit with a class of 31,500 employees (former and current). Claims made against Big Lots included unpaid, but mandatory security screens when leaving work. Non-exempt employees are entitled to pay for all hours worked under the federal Fair Labor Standards Act (FLSA). Pre-shift and post-shift duties are sometimes considered “work time” by the U.S. Department of Labor and sometimes not. 

Defining What is Compensable According to Employment Law: 

Courts often face the issue of what is compensable and what is not compensable. In 2014, the U.S. Supreme Court concluded that to be considered compensable time, tasks must be “principal activities” that are indispensable and integral to the employee’s job. Earlier this month, the 10th Circuit ruled that a prison officer’s pre-shift and post-shift tasks qualify as compensable. Included in the “tasks” deemed compensable were pre-shift briefings and security screenings. The tasks were deemed eligible under FLSA because they were integral and indispensable parts of the principal activities the officer was hired to perform. 

Employers across the nation have paid millions to resolve similar wage and hour lawsuits. PNC Bank paid a $2.75 million settlement to resolve allegations of employment law violations springing from off-the-clock work. CorePower Yoga settled an off-the-clock lawsuit with a $1.5 million settlement.

If you are required to perform off-the-clock work, or you need to file an employment law lawsuit, we can help. Contact Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago. 

UPS Employees Allege Employment Law Violations in Recent California Class Action

UPS employees cite various employment law violations in a recent lawsuit. Not the first, but the latest class-action lawsuit filed against UPS Supply Chain Solutions, Inc., this suit claims employees were not paid overtime, did not meet minimum wage requirements, failed to provide legally mandated meal breaks and rest periods, etc. The lawsuit (Case 3:19-CV-07551-RS) is pending in Riverside County Superior Court. The suit was initially filed in the Superior Court of the State of California but was moved to the Northern District of California in November 2019.

California State Labor Law Provides Employees with Protection:

California law requires employers to pay employees for all hours worked, including all the time that a worker is under the “company’s control.” UPS faces allegations that they failed to compensate their workers in a California warehouse for time spent on mandatory security checks.  

Did Mandatory Security Checks Violate Employment Law?

According to claims in the class action, UPS required warehouse employees to complete security checks on their way into the premises and again on their way out. This occurred when they arrived for the shift, as well as when they came and went for lunch or rest breaks. To complete the security checks, workers had to wait in line for their turn to undergo security screenings. Time spent waiting in line, completing the security screening, and walking to and from the screening area to the time clock was not counted as hours worked, so workers were not compensated for any of the time.

Are Workers Under Employer’s Control During Security Checks?

Class members in the suit argue that the time spent going to and from and completing security checks constitute a type of control the employer held over the workers, and the time should, therefore, be compensated. Lawsuit documents argue that the UPS workers are owed minimum wage (and overtime when applicable) for any hours they spend complying with the UPS security check requirements. As the workers were also under the company’s control for part of their lunch breaks and rest periods, the class members argue that UPS did not comply with the law by relieving employees of “all duties” during their legally mandated breaks. Due to time spent completing the mandatory security checks, employees’ meal breaks were shortened to less than the legally required 30-minute meal break and 10 minute rest periods defined by state law. The lawsuit seeks an hour’s worth of pay at the employees’ regular rates of pay for each non-compliant meal break or rest period. 

Is UPS Violating Federal and State Labor Laws?

Seasonal workers on the east coast accused UPS Inc. of federal and state labor law violations in a suit filed in New York federal court. The temporary or seasonal workers, Lalynda Hedges and Zyaire Simmons, worked at New York UPS facilities during the peak season, October 2018 – January 2019. They allege UPS violated labor law by failing to pay them minimum wage, overtime pay, etc.

If you need to discuss employment law violations or if you need to file an overtime or wage and hour lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Class Action Spotify Lawsuit Alleging Violations of Employment Law

Matthew Elias, of California, filed a class-action lawsuit against Spotify alleging misclassification and failure to provide legally mandated meal breaks and rest periods. Elias filed suit on his behalf and on behalf of others in similar situations who are allegedly “aggrieved.” According to the lawsuit, Elias, a nonexempt employee of Spotify from July 2016 through July 2018, was reportedly misclassified as an independent contractor approximately one year into his tenure.  

Elias Seeks Compensation for Loss of Benefits:

As a result, Elias sought counsel to help him seek compensation for Spotify’s failure to provide him with the same benefits other nonexempt employees receive under FLSA (the Fair Labor Standards Act). Worker protections offered under FLSA include overtime pay requirements (workers must be paid one and half times their hourly rate for hours worked over 40 in one week or 8 in one day), legally mandated meal breaks and rest periods, etc. Elias alleges that the company forced him to use personal funds to purchase cellular data services and streaming services. He claims the expenses were business expenses, and the company should have covered the costs.

Moving the Case From State Court to Federal Court:

Elias filed the lawsuit in the District Court for the Central District of California. Spotify did not immediately make a public comment on the filing, but they did file a request to move the case from state court to federal court since the streaming giant is registered in Delaware. The federal venue will likely be more favorable for Spotify than California state since California passed stringent worker classification laws under AB5 effective January 1, 2020. Legal counsel for Spotify also argued that the case move to a federal courtroom because potential damages could be more than $75,000 (including a minimum of $110,086.40 in allegedly owed overtime wages alone).

California’s Worker Classification Laws Under AB5:

Effective January 1st, California’s AB5 is designed to decrease the abuse of the independent contractor classification by employers. The legislation was inspired to address the massive issue in the ride-share industry, but while Uber and Lyft openly refuse to comply, many other sectors are feeling the effect of change as it ripples across the state. Thousands (or hundreds of thousands, we can’t be sure) of contract workers have been released from work without replacement jobs as many are merely turning to different states or overseas job markets where independent contracting is entirely legal. AB5 currently faces significant backlash from various industries like the trucking industry that are being hard hit by the legislation.

AB5 and California State’s Music Industry:

The new law may be disastrous to the state’s music industry as music productions often involve various hired musicians, assistants, etc. most of which are traditionally hired as independent contractors for the event, performance, gig, etc. While dozens of industries successfully crafted agreements defining needed exemptions to AB5, the RIAA was not able to do so for musicians, labels, and other music industry groups. Some suspect the failure to obtain exemptions for the music industry successfully was likely due to in-fighting amidst musician unions.

If you need to file a misclassification lawsuit or if you need to discuss other employment law violations, don’t hesitate to get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California Chipotle Workers Denied Class Action Certification

California Chipotle workers were recently denied certification of a potential class action. The U.S. District Court for the Northern District of California explained that at the class certification stage, it isn’t enough to assert that there were company-wide policies. The plaintiffs must prove that the alleged policies exist on a “company-wide basis.”

About the Discrimination Case: Guzman v. Chipotle Mexican Grill, Inc.

The plaintiffs brought the class-action lawsuit alleging that Chipotle systematically discriminated against Hispanic or Mexican workers with claims under the California Fair Housing and Employment Act (FEHA). Plaintiffs in the case sought class certification with a proposed class of about 43,000 workers (mostly Hispanic or Mexican hourly workers). The suit alleged numerous discrimination, retaliation, and harassment claims based on two alleged Chipotle policies:

What Chipotle Policies Led to the Discrimination Suit?

English-Only Policy: Plaintiffs in the case alleged there was an unwritten policy that prohibited Chipotle employees from speaking Spanish on the job.

Promotion Policy: The plaintiffs in the case also alleged that an unwritten Chipotle policy required a subjective English proficiency before a Chipotle employee could be promoted to a management position.

Were Alleged Unwritten Policies Company-Wide?

The plaintiff employees alleged that the unwritten policies applied at all California Chipotle locations (approximately 400 across the state). The Defendant argued that there was a lack of evidence demonstrating this claim. Additionally, Chipotle argued that even if the unwritten policies did exist and were company-wide, claims would require individualized inquiries into the company policies, including the alleged decision-making by supervisors determining promotion, etc. at individual restaurants. The court’s response to the request for class certification was that when considering class certification, the court cannot accept the Plaintiffs’ theory of the case at face value, but must instead engage in rigorous analysis to determine whether or not Rule 23 is satisfied. In some cases, this analysis overlaps with the merits of the dispute.

Did Plaintiff Employee’s Evidence Rebut Their Own Argument?

The court also stated that the plaintiff’s evidence offered in support of their argument actually rebuts the inference that Chipotle uniformly imposed the named policies across all their California locations. When examining 12 declarants, the court received differing responses. Half the declarants did not experience the alleged English-only policy. Some who claimed they experienced the alleged English-only policy were permitted to speak Spanish among themselves at work. The declarant testimonies led the court to conclude that there was no evidence of a “company-wide” English-only policy applicable across the entire proposed class.

The plaintiffs and declarants also experienced different policies and requirements for promotion, depending on their location and their supervisor. One declarant asserted they did not experience the alleged promotion policy at all. Some “similar” experiences were noted, but those employees worked in the same store under the same general manager. Testimonies on record indicated that four of the 400 California Chipotle locations had employees who were told at varying times that promotion depended on improving their English proficiency. Based on testimonies offered, the court concluded that, in regards to the unwritten promotion policy, the evidence did not suggest a uniform, “company-wide” policy applicable to all class members.

Without a common question of law or fact, class certification is not appropriate since the suit would not be resolved efficiently in a single proceeding. Due to these facts and findings, the court denied class certification. This action is a reminder to California employees that class action certification requires proof of the existence of a uniform policy – especially when allegations are based on unwritten policies.

If you are experiencing discrimination in the workplace or if you need to file a discrimination lawsuit, we can help. Get in contact with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

$3.65 Million Settlement Goes to Dancers for California Labor Lawsuit

A $3.65 million settlement was approved by the District Court for the Central District of California, effectively ending the California labor lawsuit alleging that The Spearmint Rhino nightclub chain made a practice of misclassifying dancers as independent contractors. The practice of misclassifying workers as independent contractors violates FLSA (the Fair Labor Standards Act) and California Labor Law.

The Spearmint Rhino Misclassification Lawsuit Receiving Extra Attention:

The dancers at Spearmint Rhino nightclub offered nude, semi-nude, or bikini entertainment to the club’s patrons at various locations since October 30, 2017. In the end, they will net approximately $2.6 million. The misclassification lawsuit filed by Spearmint Rhino’s dancers is just one in a long series of suits and related legal actions that are inspiring a noticeable reaction. The attention this case received is party due to the novelty of a sex industry labor lawsuit, but also due to the currently charged political debate about AB 5, California’s new gig worker law based off of the Dynamex decision.

Dancers Actually Pay their Employer to Work for Tips:

Did you know that in many cases, dancers in the sex industry end up paying their employers so they can work for tips? It’s true. The economics of exotic dancing are unlike anything you’ve seen in other industries. Dancers are required to pay an assortment of “fees” such as house fees or dance floor fees before performing at an establishment.

In some cases, the dancers must sign an agreement requiring them to pay a lease fee for the “business space” they will be using. Additionally, many employers in this industry charge exotic dancers a higher stage fee if they are not fully nude by the end of their performance. Exotic dancers do not receive wages; they work for tips. Dancers share their tips with the bartenders, DJs, and dressing room helpers (often referred to as House Moms). If it’s a slow night, an exotic dancer may go home with very little to show for a full shift.

Legal Actions Targeting the Exploitative Sex Industry:

Ortega v. The Spearmint Rhino is just one in a series of similar lawsuits. The change that would come with AB 5 would not be limited to exotic dancers or the sex industry. The legislation was originally drafted to address misclassification issues in the gig economy. AB 5 applies to any California worker who finds themselves pushed or forced into independent contractor status without fully understanding the consequences of the classification.

Opponents of AB 5 Refuse to Comply or Seek Exemption

The purpose of AB 5 is to address misclassification in the workplace. Misclassification is a significant issue because employees have essential wage and hour protections in place that do not apply to independent contractors. In some cases, it can be difficult to distinguish between an employee and an independent contractor. Following Dynamex, the legislature introduced AB 5 to address this problem using a simple test to determine which workers are employees (and entitled the protections of employment law), and which workers are independent contractors.

Many employers actively fought against AB 5 before it was enacted. Some were exempted using modifications to the law. Other California employers (like Uber and Lyft) announced that they would not comply with the terms of AB 5. In the face of such powerful opposition, some wonder what would happen to workers like the Spearmint Rhino dancers if AB 5 is repealed or left without the power of effective enforcement through additional amendments or judicial limitations?

The Fate of California Misclassification Suits: With or Without AB 5

The Ortega suit against Rhino Spearmint night club was filed in before AB 5 was enacted – in February 2017. It was filed before the Dynamex decision that led to the legislative change. While the case did not receive an actual judicial decision, the defendant found the arguments presented strong enough to warrant making a settlement to resolve the matter out of court. This conclusion would be likely with or without AB 5 in place. While it is likely that misclassification lawsuits would be more difficult for California workers to win without AB 5, it is not their only hope.

If you need to discuss misclassification or how to file a misclassification lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Did Apple Violate the Law by Not Paying Employees During Mandatory Searches?

In July 2015, the employees suing Apple for not paying hourly wages for the time spent waiting in lines for mandatory, daily security checks got their case certified as a Class Action. And now the California Supreme Court ruled against Apple.

Are Mandatory Searches a California Labor Law Violation?

On February 13, 2020, the California Supreme Court found Apple Inc. in violation of California labor law due to their failure to pay employees for time spent waiting for mandatory bag and iPhone searches after work shifts. The decision is the latest progression in the battle over off-the-clock work payment. This case represents the California Supreme Court’s third wage and hour decision in two years that interprets the state’s employee-protective wage requirements. At the trial level, Apple came out on top with the U.S. District Court for the Northern District of California finding that Cupertino, California Apple employees chose to bring their bags and purses to work and therefore choosing to be subjected to mandatory searches. But on appeal, the U.S. Court of Appeals for the Ninth Circuit turned the question over to the state court for interpretation of California labor law.

Determining Who Holds the Power During the Mandatory Search:

Since compensation depends on whether or not the employee is under the control of the employer, it is crucial to determine if Apple workers are under Apple’s control while they wait in line for mandatory searches, while they are undergoing the mandatory searches, and when they are exiting the mandatory searches. The mandatory searches occur when Apple employees finish their shifts and wish to leave the premises for the day. The exit search is a burden to Apple employees because it prevents them from leaving with their personal belongings until they have completed the thorough (and mandatory) exit search. The mandatory search process can take anywhere from five to twenty minutes. Employees are required to make specific movements and actions during the mandatory search.

Apple Claims Mandatory Searches Benefit Employees:

Apple claims the bag-search policy is justified as providing a benefit to Apple employees. Still, the court finds this far-fetched under the circumstances of the case and in consideration of regular, 21st-century living. The case will return to the Ninth Circuit, the same court that already held that Nike and Converse must face workers’ claims that they should receive payment for time spent in post-shift bag searches.

If you need to discuss employment law violations or if you need to file an off-the-clock work lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Former Principal Claims for Catholic School Files Wrongful Termination Suit

A former principal at a Catholic elementary school in La Mirada, 38-year old Bobbie Castillo, claims she was wrongfully terminated. According to the suit, when she told her supervisor that she was pregnant (in 2014) and would be going on maternity leave, the Rev. Joseph Visperas responded, “You’re coming back in two weeks, right?”

Reverend Joseph Visperas is pastor of St. Paul of the Cross Catholic Church. Castillo described his voice as serious when he made the above remark about being back in two weeks from maternity leave.

The pregnant Catholic school principal eventually responded by filing a wrongful termination lawsuit.

Plagiarized Material or Too Much Maternity Time?

Castillo filed suit in October 2015 in Los Angeles Superior Court, listing the Archdiocese of Los Angeles as Defendant. A jury will hear the case. The Archdiocese of Los Angeles claims Castillo lost her job after she allegedly plagiarized material included as part of the school’s accreditation renewal requirements. Castillo maintains she was terminated from St. Paul in March of that same year because of her pregnancy and because she exposed misconduct perpetrated by others there at the school.

History of Castillo’s Wrongful Termination Case:

Castillo started working at the school as a seventh-grade teacher in 2007. She was promoted to principal by Visperas four years later. Before her two-month maternity leave (Oct. 2014-Jan. 2015), while she was principal, she took a similar amount of maternity leave time in 2009 while she was a seventh-grade teacher. Castillo testified that she worried about the odd remark Visperas made about her maternity leave because it was made in March, which is the month that principals are usually offered contract proposals for the upcoming school year. According to Castillo, she never received a contract until she returned from maternity leave the next February. Castillo also claimed that not long after his first odd remark about her maternity leave, Visperas advised her he was going to have members of the staff rate her. The combined factors left her worried about her job status.

Was She Fired Because She Was Pregnant?

Castillo claims she was wrongfully terminated because she got pregnant and because she reported misconduct other at the school engaged in, including charging some of the student’s parents for unworked bingo game hours. According to Castillo, the replacement the school found for her was no longer of child-bearing age. Castillo also claims that when the book was turned in (including the section she allegedly “plagiarized”), she was in labor, and there was no evidence that she drafted the portion indicated.

If you need to discuss employment law violations or if you need to file a pregnancy discrimination lawsuit or wrongful termination lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.