Lamar Dawson’s Lawsuit Against the NCAA, Pac-12 is Dismissed

Lamar Dawson, ex-USC football player, filed a California lawsuit against the NCAA and Pac-12 that was dismissed earlier this month by a federal judge, Judge Richard Seeborg. Dawson’s class action was filed in September 2016 seeking minimum wage and overtime pay as well as additional compensation as a result of alleged NCAA and Pac-12 Fair Labor Standards Act and California Labor Code violations.

Lamar Dawson started out at USC as a linebacker his freshman year in 2011, but was injured. His injuries disrupted his football career and he lost his shot at the NFL – mostly due to a torn ACL that occurred in 2013. He redshirted in 2014 and played in 8 games throughout the 2015 season, finishing with 31 tackles.

This decision to dismiss was reminiscent of a similar case last year involving former track and field athletes from the University of Pennsylvania. The three-judge panel in the 7th U.S. Circuit Court of Appeals in that case ruled former student-athletes at NCAA Division I schools are not technically considered employees under the rules set down by the Fair Labor Standards Act.

Dawson contended during the course of the case that his specific situation was different than the case of University of Pennsylvania’s track and field athletes because football is a revenue-generating sport (in comparison to track). The judge ruled that revenue generation as a determination of employment status is not supported legally. Seeborg set aside the policy question of how Division I FBS college football players should be compensated for what he considered a more fundamental issue determining the direction of the case and his eventual ruling: legal basis for finding them employees under the FLSA. He found none.

The NCAA and Pac-12 were not surprised by the ruling. Both had previously stated similar opinions regarding the validity of Dawson’s claim dating back to the original filing. The NCAA is pleased with the outcome and reiterated their stance that there is no legal support for college athletics participation constituting “employment” with the university. They went on to specify that playing college sports is an opportunity for students to obtain a quality education and build skills that prepare them for educational success at the college level. They concluded their thoughts on the matter by regretting the wasted funds and resources that are spent on cases such as this that will eventually be dismissed. The Pac-12 was also pleased with the ruling finding that it reaffirmed their conviction that college athletes are students – not employees.

If you have questions regarding employment status or whether or not you are misclassified on the job, please get in touch with one of the experienced California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

California Overtime Lawsuit: Hotel Housekeepers Denied Overtime Pay

While many domestic workers had cause to celebrate in September of 2016, some California hotel housekeepers quickly found that the bill granting permanent California overtime protection for domestic workers did not apply to them. For instance, a hotel owner in East Oakland refused to provide overtime compensation to six housekeepers in his employ. As a result, the employees, along with a legal advocacy firm working on their behalf and the City of Oakland, filed a California Overtime Lawsuit against the Oakland Quality Inn.

In the California overtime lawsuit, the plaintiffs cited additional employment law violations, including:

·       The hotel required employees to work off the clock both before and after shifts.

·       The hotel did not provide mandatory breaks as required by labor law.

·       The hotel retaliated against employees who phoned in sick to work.

The labor law violations cited by the plaintiffs have allegedly been in practice for a minimum of four years. The plaintiffs, one of which only speaks Spanish, got in touch with attorneys at a legal advocacy to seek assistance in obtaining resolution of the matter.

Media reports indicate that legal counsel involved in the case indicated that both fear and employer retaliation are a big problem not just at this one isolated hotel in Oakland, but throughout the housekeeping industry and that they are a tool used to exploit housekeeping staff. The six immigrant women involved in this particular case had to overcome great personal fear in order to seek justice in their difficult situation.

Lead plaintiff in the case gave a city statement saying that she felt bad about her housekeeping position with Oakland Quality Inn because they were suffering in their position – they were worked excessively, were not provided overtime compensation, or offered any overtime or sick time. She specified that they weren’t paid for time off even if they provided a doctor’s note to the hotel.

The lawsuit was filed jointly by the City of Oakland and a legal advocacy firm in Alameda County Superior Court on January 31st, 2017. According to Oakland City Attorney Barbara Parker, it is the city’s first lawsuit under the minimum wage ordinance that voters passed in the fall of 2014. As of March 2015, Oakland’s minimum wage was set at $12.25 with a cost of living increase annually bringing it up to $12.86 per hour.

In the state of California all domestic workers, including hotel housekeepers, are entitled to overtime compensation.

Statistics from the UCLA Labor Center make it clear just how applicable the issue is to California workers with about 2 million California households hiring domestic workers:

·       Housecleaning (54%)

·       Homecare Support for Seniors/Disabled Individuals (27%)

·       Childcare (19%)

Many domestic workers are live-in workers with a number of them working 24-hour shifts. While the signing of bill AB241 granted overtime protection for domestic workers, many are still being exploited in hotels, private facilities, and private homes. While legal protections are in place, the question now is one of enforcement.

The suit seeks unpaid wages/compensation for employees plus penalties and damages.

If you need assistance determining whether or not you are entitled to overtime pay, or if you need to discuss other labor law violations in your workplace, please get in touch with one of the experienced northern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

US Airways Requests Rejection of Overtime Claims

Legal representation for US Airways in the California class action overtime lawsuit filed in 2012 requested that the federal judge hearing the case on January 13th, 2017 reject overtime claims brought by the certified class of US Airways fleet service agents. The company claims that the unionized workers’ collective bargaining agreement (CBA) as well as the Railroad Labor Act (RLA) makes the workers involved in the suit exempt from some state labor laws.

The attorney argued that it is not uncommon for state legislatures to remove RLA collective bargaining agreements because of interstate commerce concerns and that these concerns are often applicable to flight crews. In a January 26th motion, it was requested that the court consider legislative history materials in regards to Assembly Bill 60 concerning overtime exemptions. It was argued that the legislative history does not support the plaintiffs’ arguments that the collective bargaining exemption in the California Labor Code is in conflict with the RLA exemption. Legal Representation pointed out the plain language of the two statutes failing to indicate a conflict.

The judge will need to rule on an October 2016 motion filed by US Airways legal counsel to decertify “grace period” fleet workers that were previously certified in 2014. These workers claimed they should have received payment for work during “downtime” required between clocking in and clocking out. The company stated that workers were free to do as they wished during the unpaid time and that in some cases they had enough time to fulfill preparatory duties on the clock. The judge found that discovery suggested that requests for compensation in regards to putting on gear (“donning and doffing”) were handled differently depending on the airport. The judge also questioned the difference between the estimated time for “donning and doffing” as offered by the opposing attorneys. Plaintiffs indicate five minutes is necessary, but the judge questioned the accuracy of the estimate. US Airways attorneys suggest the task can be completed in less than a minute.

If you have questions or concerns regarding off the clock work or unpaid overtime, please get in touch with an experienced southern California employment law attorney at Blumenthal, Nordrehaug & Bhowmik.

FLSA Mercedes Dealer Suit Sees Second Reversal from 9th Circuit

The 9th Circuit again reversed a decision on the FLSA Mercedes Dealer suit alleging the a California Mercedes-Benz dealer is shorting their “service advisers” on overtime pay. They found that Congress never had intentions of exempting advisers from overtime pay. The panel of three judges based their findings on the “extensive legislative record” including amendments from 1966-1974. The record used for the basis of the panel’s findings constituted tens of thousands of pages that spanned close to two decades. In all of the data, there is barely a mention of service advisors. The few times they are mentioned, were connected in no way to concern regarding overtime pay.

Service advisers diagnose vehicle service and repairs and recommend additional work that, while not immediately necessary, would be beneficial for the car. A group of these employees filed suit in 2012 listing allegations that Encino Motorcars LLC was in violation of FLSA legislation because service advisers were paid strictly on commission even though their collective hours for the week on average amounted to more than the legal standard work of 40 hours.

The Mercedes-Benz dealership urged the court to dismiss the claims made by service advisers stating that the FLSA exemption for salesmen, mechanics, partsmen, etc. (whose primary functions are to sell or service vehicles) also applied to service advisers. The plaintiffs’ FLSA overtime and state-law claims were dismissed by district court in January 2013.

In March 2015, the 9th Circuit reversed the district court’s dismissal, citing DOL regulations that state that only workers who sell cars were to be designated as salesmen and that only workers who personally provided service to cars were to be designated as mechanics. The 9th Circuit found the definitions to be reasonable and in accordance with the U.S. Supreme Court’s Chevron standard, this in spite of the Fourth and Fifth Circuits so far declining to adopt the DOL’s definitions.

In June 2016, the Supreme Court justices voted 6-2 to vacate the appellate ruling. They ordered the 9th Circuit to reconsider the matter without taking into consideration the DOL rules/definitions as they were issued in 2011 and were not offered alongside appropriate explanation that would enable them to be used as guidance in this type of dispute.

In August 2016, the DOL secretary presented arguments that the 9th Circuit got it right when they originally reversed the district court’s dismissal of the plaintiffs’ claims. They argued that the FLSA explicitly exempts three occupations in the dealership setting from overtime pay and overtime requirements and that according the plain language of the section being applied to the case, the statute does not include (or therefore apply) to service advisers. Encino Motorcars continued to stand behind arguments that the court should hold that service advisers are exempt like its sister circuits instead of deferring to the DOL’s redefinition of “salesman.”

After reconsidering the matter, the 9th Circuit again reversed the district court’s dismissal and remanded the FLSA claims and related state claims, finding that even without considering the DOL definitions, the plain language of the law indicates Congress did not intend for service advisers to be exempt from overtime requirements/overtime compensation. In addition, it was noted that even if the text of the FLSA statute were decidedly ambiguous, the legislative history of the FLSA and amendments confirm Congress’s intentions for overtime exemptions and the list did not include service advisers. During discussions, Congress’ silence regarding exempting service advisers was significant and taken as a strong suggestion that they not be exempt to overtime pay.

If you have questions regarding overtime pay or exemptions from overtime pay, please contact an experienced southern California employment law attorney at Blumenthal, Nordrehaug & Bhowmik. 

Versace Allegedly Employed a Code Designed to Identify Black Shoppers

One of Versace’s former employees, Christopher Sampino, has come forward to file suit against the company alleging state law violations, i.e. unfair business practices, wrongful termination, racial discrimination, etc. The lawsuit claims that the Italian design house uses a secret “black code” that alerts staff and security when there is a black shopper in one of their retail locations.

Sampino’s complaint was filed in Alameda County Superior Court and included allegations that he was discriminated against by Versace for being of mixed race. He was fired after just two weeks at the Versace outlet store in Pleasanton, California. In the complaint, Sampino alleges that new-employee training included an unnamed manger advising him regarding the “D410 Code.” The code is used for labeling black clothing, but it is also used in a casual manner whenever a black person enters the Versace store. When he was advised of the use of the code, the manager explained that it was used to alert Versace workers that a “black person is in the store.”

Sampino also claims that during his time with Versace he was harassed and eventually terminated after informing the store manager that he was, in fact, black. According to Sampino, he met and/or exceeded all expectations in connection with his Versace employment, but was fired after two weeks because he did not “understand luxury” and did not “know the luxury life.” Versace also advised Sampino that his dismissal was due to his lack of experiencing a luxury life. He was advised to quit in order to make the paperwork easier.

Labor Violation Allegations Listed in Sampino’s Suit Include:

1. Not being paid for time worked.

2. Not receiving required rest periods.

3. Being wrongfully terminated.

Sampino seeks class action certification. If the proposed class action lawsuit is certified by the court, other employees and/or former employees of Versace who found themselves in similar situations and were subjected to discriminatory treatment by Versace in the U.S. during the same time frame would be able to join in the case and share in any settlement amounts.

If you have been wrongfully terminated or if you have questions regarding the definition of wrongful termination, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Wage and Overtime Allegations Aimed at Korean BBQ Restaurant

A Korean BBQ restaurant in San Francisco is facing wage and overtime allegations from three former employees who filed suit citing wage theft, wrongful termination in retaliation for complaining about the company’s labor law violations. The lawsuit was filed against YakiniQ, Inc., the restaurant’s owner, Daeho Hwang, and the restaurant’s manager, Bruce Lee. The lawsuit was filed in San Francisco County Superior Court July 27th.  

The Plaintiffs: Michael An, Joshua Kim & Seung-Jae Yim

The plaintiffs who filed he wage and overtime lawsuit against the restaurant were servers at various times for YakiniQ. Termination dates vary, but fall between September and December 2015. All claim that their employer promised that they would be paid minimum wage plus tips that were left by customers of the restaurant.

The Defendant/s: YakiniQ, Inc., Daeho Hwang & Bruce Lee

Lee and YakiniQ are accused of withholding wages and keeping cash tips left by customers for themselves. The Defendants are also accused of regularly requiring their employees to work shifts that were longer than eight hours without providing overtime payment.

Employment law is in place to prevent employers from taking this type of action in order to “cut corners” when providing employees with their rightful wages.  

Activities included in the plaintiffs’ common duties:

·       Greeting customers

·       Seating customers

·       Taking orders from customers

·       Serving food and drinks to customers

·       Delivering bills to customers

·       Bussing tables

·       Cleaning the restaurant after close of day

Allegedly, the restaurant owner/manager prohibited the plaintiffs from taking their rest and meal breaks as required by law under California Labor Code. According to the lawsuit, when plaintiffs were allowed to eat, they were not relieved of job duties completely. They were required to respond to requests from both customers and their employer as needed even while eating. Servers were also, allegedly, financially penalized as a group for individual mistakes on the job. If one server forgot to include an item in a customer’s bill, the cost of the item was divided up amongst servers on the shift so the restaurant could avoid absorbing the cost. Michael An states that when he complained about the unlawful action on October 4th, 2015 he was fired.  Plaintiffs seek a jury trial and compensation for lost wages/unpaid overtime.

If you have questions regarding unpaid overtime or lost wages, please get in touch with one of the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

Drivers’ Employment Status Leaves Uber Being Sued…Again!

Uber is being sued again. The question of the Uber drivers’ employment status has opened the class action floodgates. Within two weeks of the settlement of $100 million for class action lawsuits in California and Massachusetts that sought driver reclassification from independent contractors to employees, Uber is fielding two new cases against their company.

Following the California and Massachusetts case resolution, similar nationwide class-action lawsuits have been filed on behalf of Uber drivers in both Florida and Illinois courts. The drivers (plaintiffs) allege that Uber, a San Francisco company, is in violation of the Fair Labor Standard Act. The new suits seek unpaid overtime wages and work-related expenses on behalf of drivers.

The class action suit that was filed in Illinois takes the familiar allegations to a new level by attempting to recover tips that drivers earned which they allege the company stole from them or caused them to lose through Uber policies and communications.

Legal representation for the Illinois class action lawsuit indicated that the settlement with California and Massachusetts drivers was an obvious attempt by Uber to band aid the situation when it called for much more drastic methods. Many drivers who work using the Uber service do so as a means of supporting themselves and their families. They need the protection of wage and hour laws and overtime pay requirements, just as much as the rest of the workers in the nation.

Uber responded to the new legal activity with a statement indicating that 90% of their drivers work with Uber because they enjoy being their own boss and that the reclassification of drivers from independent contractors as employees would take that away from them. They would no longer have the flexibility that the status of independent contractor affords. Uber “employees” would have designated shifts, a fixed hourly wage that would limit their earnings, and prohibitions would keep them from driving for additional ride-sharing apps.

If you have questions about the misclassification of workers or if you are an independent contractor and have questions about misclassification of employees, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug and Bhowmik.