"Top Chef" Finalist Settles Wage and Overtime Lawsuit

Top chef is a television series aired on the Bravo channel. On the popular TV show, unknown chefs looking to make it big in the restaurant world are able to compete for the title of "Top Chef". In addition to the general prestige that comes with winning the title, the purpose of the competition is to win the ultimate chef's “Top Chef” prize package, which includes $125,000 and a food showcase at the Food and Wine Classic in Aspen, Colorado. Bryan Voltaggio was a contestant on the sixth season of Top Chef. Near the end of the season, Voltaggio was one of the top finalists who went on to create and own four very popular restaurants: VOLT, Lunchbox, RANGE, and Family Meal. 

In recent news, several previous employees of "Top Chef" star Bryan Voltaggio have been attempting to negotiate a settlement of their federal lawsuit filed against him. (The settlement's terms were confidential and disclosed in a U.S. District Court document). Legal representation for the parties in the case was not able to discuss the terms of the agreement.  

The group of former employees sued Voltaggio in September of 2014. He was accused of violations of the minimum wage and overtime provisions stated in the Fair Labor Standards Act. According to Court recorded documents it was a mandatory obligation that the employees appear at work at least three hours before the appointed shift time. They were also required to stay from two to six hours after they had clocked out for the day. Plaintiffs were also required to work "off the clock" which means they had to work as they would during a shift, but could not clock in and receive payment until the scheduled shift had started. 

What is Off the Clock Work?  

When discussing employment law and payment for wages earned, Off the Clock Work refers to the legal right of every non-exempt employee to be compensated for their hours worked. Hours worked refers to all time an employee is required to be on duty, on the premises of their workplace, or other location employee is required to be in order to fulfill work duties. When an employee is required to work without “clocking in” or counting their hours for payment, this is often referred to as off the clock work.

When Voltaggio was informed of these charges he responded to the accusations with an email stating that his attorney was reviewing the claims. He also stated that he was sure that the plaintiffs were incorrect; that he did nothing wrong.  

If you have additional questions about off the clock work, or what qualifies as a failure to pay overtime, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Raiders Cheerleaders “Cheering” New California Labor Code Section 2754

The Oakland Raiders cheerleaders might be the group that is the most enthusiastically cheering for the new Labor Code Section 2754. The Raiderettes filed a class action case against the Raiders in 2014 in a fight to win status as employees that would grant them the protection of wage and hour laws. The plaintiffs in the case (cheerleaders/Raiderettes) alleged that, as independent contractors, they received contract pay of $125/game. This rate of pay was provided regardless of how many hours the cheerleaders worked and resulted in less than $5/hour. Minimum wage for California employees at the time of the suit was $8/hour and was since raised to $10/hour.

The Raiderettes are not the only of their kind to feel like they are not being treated fairly on the job. As other professional sports teams’ cheerleaders have filed similar suits, legislature is taking action to address the problem. As of January 1st and in accordance with new Labor Code Section 2754 added by AB 202, cheerleaders for professional sports teams in California will be deemed employees according to state law.

Some wonder if the new legislation could hint at a broader policy against misclassification as independent contractors. Legislative history clearly indicates the apparent concern for the issue of independent contractor classification noting that the Employment Development Department reports for 2012 alone indicated:

$36,348,078 in payroll assessments and

$9,131,000 in tax fraud assessments

(According to the June 24, 2015 Senate Floor Analyses)

The California Division of Fair Labor Standards also agrees that independent contractor classification is a rampant problem – even going so far as to report it as such on their website alongside their concern regarding the lack of a bright-line test.

In fact, the independent contractor classification problem is not one that is limited to California. According to the U.S. Department of Labor Administrator’s Interpretation from July 2015 noted that the misclassification of workers as independent contractors is more and more common in U.S. workplaces. It was also noted that when the economics realities test is combined with the expansive definition of “employ” according to the Fair Labor Standards Act most workers are actually employees – not independent contractors.

If you have questions about your own status as an independent contractor or need information on how to decide if you are actually a misclassified employee, please get in touch with the southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik. 

Low-Wage Workers Going Unprotected by Current Minimum Wage Laws

Many low-wage workers hope President Obama’s push to increase the federal minimum wage will offer results. The hope it to increase it to $10.10 per hour (in addition to the recent state-level increases) which would be welcome and exciting news for many in low paying positions. It’s a glimmer of hope that they may not have to struggle so hard to get by on such a small paycheck.

Due to a strange compilation of rules and exemptions on both a federal and state level, there are a number of different “classes” of workers are not protected by minimum wage law. In some cases, workers aren’t just not paid minimum wage, but they are paid well below minimum wage. The complexity of the rules is increased by the fact that state and federal rules and regulations are not always in line with each other. Some of the classes of workers who are often paid below (or well below) minimum wage on the job include:

• Disabled Workers: federal law allows employers to apply for a special certificate allowing them to decide how much the work of any disabled (physical or mental) worker is worth. The law allowing this was put in place in 1938 and has seen very little change since its inception.
• Workers at Very Small Businesses: If company gross sales are under $500,000 and no work is done across state lines, federal minimum wage regulations do not apply.
• Teenage Trainees: There are multiple situations in which federal law allows for exemptions in minimum wage requirements in relation to employment of teenagers/students.
• Tipped Workers (as mentioned above): According to federal law, minimum wage for tipped workers is $2.13 as long as “tips” bring the overall pay for the worker up to the $7.25 minimum, but this is obviously difficult to regulate and enforce.

These examples make it clear there’s a problem and this is only a small representation of the full list of classes that often include workers “exempt” from federal minimum wage laws. On top of that, there’s the additional confusion of laws and regulations that are in place at state and local levels.

If you have questions regarding minimum wage and hour laws and how they apply to your workplace, your industry and your job duties, please contact the Southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Changes to California Employment Law Effective January 2015

As discussed in our previous article, 2015 brings with it some changes to California employment law. Many feel that frequent changes result in employees unsure of what their rights are in the workplace, but the changes to California’s employment law are for the employees protection and address issues that come up repeatedly as the California State Legislature attempts to ensure that all employees are provided with a safe work environment.

If you haven’t yet considered how the changes to California’s employment law in 2015 could impact you or your job, take a minute to consider the potential ramifications. Here are a few every California employee should be aware of effective January 1, 2015:

• Shared Liability for Employers who Use Labor Contractors
• Wage and Hour Changes: From $9 hourly minimum to $10 as of January 1, 2016. And depending on what city you work in, you may be entitled to a higher hourly minimum.
• Paid Sick Days Now Required
• Discrimination Law and Training Requirements were Expanded: There is additional protection included in portions of discrimination laws for: unpaid interns and volunteers.  
• Child Labor Laws Enhanced: Treble damages are now available and civil penalties for Class “A” violations have increased.
• Immigration and Retaliation: Additional clarification and additions to existing make protections for employees regardless of immigration status more clear.

These new laws may impact your workplace. If you are an employee struggling with any of the above issues, please get in touch immediately to discuss what protections you are entitled to and how we can alleviate the situation. Call the employment law experts at Blumenthal, Nordrehaug & Bhowmik.

Worker Misclassified as Independent Contractors Sues Google

Jacob McPherson, former Google Play unit site merchandiser out of New York, sued Google and the online staffing company Elance-oDesk. He alleges that he and others in similar positions were misclassified as independent contractors by the online search engine giant. He is demanding unpaid wages, including wages that should have been paid for overtime hours. He also seeks damages and attorneys’ fees.

The plaintiff, McPherson, worked for Google from January 2013 through December 2013 as contracted. McPherson claims that he (and many others) worked up to 45 hours/week, but that Google never provided them with payment for more than 30 hours/week. While at Google, McPherson worked through oDesk who released a statement regarding the lawsuit. In their statement about the overtime suit, oDesk stated that they were committed to operating in a “lawful and ethical manner.” They researched the claims and are confident that they have no merit.

McPherson was offered employment at $35/hour for a maximum of 15 hours per week (the maximum hours per week was later raised to 30 hours, according to the suit filed against Google). McPherson was required to register at oDesk in order to receive their employment offer and he would be considered a freelancer paid only through oDesk.

McPherson claims in the lawsuit that he performed work similar to that of (and alongside at the same offices as) W-2 employees. He was assigned to teams that included W-2 employees. He was required to be in attendance for mandatory meetings and training alongside W-2 employees. He was even issued a Google owned cell phone, tablet and laptop just like the W-2 employees of the massive online search engine giant. “Freelancers” were also required to use an email signature that designated them as representatives of Google and offering the office address, follow a Google-approved method for completing assigned tasks, adhere to dress codes and the Google blogging policies, etc.

This case could be a stepping-stone for others and could mean drastic changes for online staffing and freelance sites regarding the risk associated with managing independent contractors.

If you have questions regarding your employer/worker relationship and whether or not the classification of independent contractor is appropriate according to federal regulations, contact the southern California employment law experts at Blumenthal, Nordrehaug & Bhowmik. 

Californians Voting for Minimum Wage Increases

On Election Day, voters in four different states passed minimum wage increases. This builds on the momentum already created by more than a dozen other states that have done the same throughout the past two years. According to opinion polls, a significant number of Americans are in support of increasing the federal minimum wage – currently set at $7.25.

Here in California, three cities voted on minimum wage hikes: Oakland, San Francisco and Eureka. San Francisco and Oakland will see approximately 190,000 workers receive pay increases as a result of the minimum wage hike. Eureka workers, on the other hand, shouldn’t expect the same. Eureka rejected the measure. Over the past two years, 10 other cities and counties have done the same throughout California.

San Francisco currently has a minimum wage of $10.74. Voters passed an incremental wage increase that will reach $15 per hour by 2018. (76% voted yes and 24% voted no). An estimated 142,000 San Francisco workers should see a raise. Incremental wage increases will occur according to the following timeline: Increased to $12.25 in May 2015. Increased to $13.00 in July 2016. Increased to $14.00 in July 2017. Increased to $15.00 in July 2018.  Seattle passed a similar incremental wage increase in June, making them the two municipalities with the highest minimum wage.

Oakland currently has a minimum wage of $9.00 and voted for a wage increase that will reach $12 by 2015. (79% voted yes and 21% voted no). Approximately 40,000-48,000 workers should receive a raise as a result of the vote. The wage increase will occur in March of 2015 and will jump minimum wage from the current $9.00 to $12.25.

Eureka, California has a population of 27,000. It is reportedly the only place in the country that rejected a proposed minimum wage hike at the polls on Tuesday.

It is suspected that the changing landscape that leaves us seeing so much local support for wage increases is a result of the increasingly loud and powerful movement of low-wage workers who are calling attention to the struggles created by their low paying jobs. The last couple years have seen a number of fast food and retail workers step into the spotlight to go on strike to demand wage increases to $15/hour. These individuals and their stories are the likely reason behind much of the impetus felt for wage increases at a state and local level. A full-time worker that earns the federal minimum wage will earn a little over $15,000 per year. This is below the poverty line for any family of two or more.

If you would like to discuss federal, state and local regulations regarding minimum wage requirements, contact the experts at Blumenthal, Nordrehaug & Bhowmik.

Exempt and Non-Exempt California Employees Affected by Increase in California’s Minimum Wage

On July 1, 2014, California raised its minimum wage from $8/hour to $9/hour. Both non-exempt and exempt salaried employees will be affected. An additional increase to $10/hour will take effect on January 1, 2016. Some employers view the change as inconsequential as they already have to meet local minimum wage requirements for their non-exempt employees, but there will in fact be a noticeable impact because the change applies to exempt status employees and commissioned inside sales employees.

To understand the potential changes the increase in minimum wage could have for exempt employees you must first consider the requirements for the exempt status. In order to be classified as exempt, an employee must meet certain requirements regarding the type of work they are performing. In addition, they must meet the minimum salary test. California law requires that all employees classified as exempt earn a monthly salary that is at least twice the minimum required by the state for a full time employee (working 40 hours per week). ) Prior to the increase in California’s minimum wage, this left the minimum monthly salary for a full time, exempt employee at $33,280. The change that took effect on July 1, 2014 bumps it up to $37,440. By 2016, this number will be even higher, bringing exempt employees’ minimum salary to $41,600 per year in order to meet the minimum salary test. 

In regard to commissioned inside sales employees, the new California minimum wage applies to overtime pay. California law dictates that an inside salesperson is exempt from overtime pay if they earn more than 1.5 times the state minimum wage and more than half of their income is commission pay. After July 1, 2014, an inside sales person must earn at least $13.51 per hour in order to be exempt from overtime pay. With the arrival of 2016, these employees will need to be making at least $15.01 per hour in order to retain exempt status.

Employers who disregard of delay the necessary adjustment of applicable employee pay rates and exemption statuses could face costly penalties and interest on back pay due employees, possible overtime premium pay (as a result of the loss of exempt status for some workers) and more. If you have questions regarding how the change to minimum wage law may apply to you, get in touch with Blumenthal, Nordrehaug & Bhowmik today.