Voters Approve Changes to Paid Sick Leave in San Diego

June 7th, 2016, voters in San Diego made a new law that comes with a virtually immediate effective date. This new law will require area employers to move forward with efforts at compliance immediately in order to avoid being in violation of employment law.

The ordinance was originally approved in August 18, 2014. It was scheduled to become operative on April 1, 2015. One month after its approval, petitions were filed by opponents to suspend the law. The City Council voted to submit the matter to voters during the June 7, 2016 election and in so doing, allowed voters to demonstrate that they approved. The law will not apply retroactively, and will not be operational until 10 calendar days after the council adoption of a resolution that declares the election’s results (unless a separate, earlier date is designated in the resolution itself).

The San Diego law is applicable to all employers and their covered employees. A covered employee is one that performs at least two hours of work within the San Diego city boundaries for an employer for one or more calendar weeks in the year, is entitled to state minimum wage or is a participant in a State of California Welfare-to-Work Program. Exceptions are in place for those paid under a special license at below minimum wage, those working for publicly subsidized summer programs or other short-term youth work programs, student employees, program counselors, camp counselors, and independent contractors.

For additional information regarding the application of sick leave and minimum wage laws, please get in touch with 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.

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. 

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.

Sharing of Tips Between Workers: Appeals Court Upholds Limit

On Tuesday, a federal appeals court (9th Circuit Court of Appeals) ruled that businesses could not enforce a policy of tip sharing amongst workers even if their tipped employees are paid minimum wage. The ruling upheld a 2011 U.S. Labor Department rule in a 2-1 decision. In upholding the rule, the 9th Circuit noted that it was “reasonable” and appropriately consistent with the Congress’s goal to make sure that tips stay with employees who received them for their service.

 

Definitions to Know: What is “Tip Sharing Among Workers?”

 

When employers, supervisors or businesses collect tips that are left by customers for their waiters, casino dealers or other service employees that are then “shared” with backend support staff (i.e. dishwashers, bussers, hosts, etc.)

 

The 9th Circuit overturned district courts in both Nevada and Oregon. The ruling largely applies in those states where employers are required to provide workers with minimum wage in addition to any tips received: California, Washington, Oregon, Nevada, Montana, Minnesota, and Alaska. Previously, the labor department banned employers from using the distribution of “shared tips” to employees who do not normally receive tips (i.e. backend workers).

 

The basis for this legislation is that the tip received never belongs to the employer and therefore the employer does not have the authority or right to take it and redistribute it – it is not the employer’s money. Those in support of the rule prohibiting tip sharing urge employers to turn to higher pay for backend employees instead of using “tips” from other staff to subsidize a low pay rate.

 

While, the discussion of tip sharing is far from over, those in support of the 2011 U.S. Labor Department rule preventing enforced policies of tip sharing amongst workers, see this ruling as a move in a positive direction. Others question the effect that this movement will have on the pay of backend workers who depended upon the additional cash to supplement their income.

 

If you have questions regarding the legality of company policies such as tip sharing amongst workers, get in touch with the experienced southern California employment law attorneys at Blumenthal, Nordrehaug & Bhowmik.

"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.