Will College Athletes Finally Succeed in Legally Obtaining the Right to Earn a Wage?

The NCAA is facing a new lawsuit; another attempt to get wages for hard working college athletes. The suit was filed by former Villanova football player, Trey Johnson, and alleges that college athletes should be categorized as employees and receive pay similar to students in approved work-study programs on college campuses.

Johnson filed the wage and hour class action lawsuit in the Eastern District of Pennsylvania federal court. In addition to the NCAA, Johnson listed 22 Division I universities as defendants. Currently playing in the Canadian Football League, Johnson asks for unpaid wages for the time he spent playing football for Villanova.

According to the lawsuit, the plaintiff believes that all athletes should receive pay regardless of which sport they play. Plaintiff’s counsel claims that the NCAA could accomplish this task by next fall if they buckled down and got to it simply by including the athletes in the same pool as the work-study students.

Trey Johnson’s lawsuit is the latest in a string of suits and challenges to the NCAA’s long-held practice preventing student athletes from making any money. The NCAA’s board of governors did recently announce that there are plans to modify the rule restricting athletes from accepting endorsement deals. This proposed change followed the passing of a California law making it illegal for California colleges to prohibit endorsement deals (effective 2023). The moves being made by NCAA administrators are an attempt to relieve pressure from both the federal and state level while still defending the NCAA against civil lawsuits that claim current practices violate antitrust laws.

Johnson claims every athlete for the college is an employee of the school and that as employees they deserve an hourly wage for their “work.” He also argues that the hourly wage offered should be equal or comparable to peers/other students involved in work-study programs who are performing other work on campus like stocking books in library shelves, or selling concessions at events, etc. This would typically mean a rate of $10-15/hour.

If you need to talk to someone about wage and hour law or if you need to file a wage and hour lawsuit, 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.

Ex-Dancer Sues Strip Club for Misclassification

The misclassification controversy is not exclusive to the gig economy. As the gig economy’s problems seem to escalate, problems are growing in other industries as well. In Daytona Beach, a former dancer at Grandview Live is suing the strip club claiming they owe her back wages because they misclassified her as an independent contractor when she was allegedly an employee.

Brittany Hall, former dancer at Grandview Live in Daytona Beach, claims that due to the club’s misclassification, she allegedly earned less than minimum wage and was not paid overtime. Hall, like the other exotic dancers at the club, was paid strictly in tips from customers. She worked at the strip club for over two years without overtime and receiving less than minimum wage, which attorneys for the plaintiff claim is fairly standard in the industry.

Hall claims Grandview Live owes her money because they violated wage and hour law by paying her less than minimum wage and failed to pay her overtime hours she was due. Hall also alleges that the club took tips from her in addition to their other employment law violations.

California legislature recently passed Assembly Bill 5 which will require companies to treat their workers as employees if they meet certain standards. The bill is set to go into effect January 1, 2020 and will have a massive impact on gig economy companies like Uber and Lyft and DoorDash. But it will also benefit workers like Brittany Hall, working in industries that have been around since before smartphones and apps were introduced.

Sometimes employers misclassify workers unintentionally. In some cases, it is an honest mistake. Other employers actively and purposefully misclassify their employees in order to maximize profits and minimize costs. Employers have major incentives to shift workers off their payrolls due to taxes, unemployment insurance, workers compensation premiums, etc.

If you are misclassified or if you are not being paid overtime wages for all your hours worked, please do not delay. Get in touch with one of the experienced employment law attorneys at Blumenthal Nordrehaug Bhowmik DeBlouw LLP so we can help.

Another Multimillion Dollar Settlement to End an XPO Last Mile Wage Suit

Drivers had a big win in the California courtroom recently when XPO Logistics settled another wage lawsuit for close to $5.5 million. The settlement was split between just under 4,000 drivers. This is the third lawsuit of this type settled by the company in the last 4 months. Federal court documents state that the Defendant, XPO Last Mile, agreed to pay the class members $5.5 million to end the lawsuit originally filed at the end of 2016.  

The lawsuit was filed by Hector Ibanez in 2016. He filed the lawsuit on behalf of thousands of XPO Last Mile drivers in California. Ibanez alleged that the company misclassified him and others as independent contractors. The California drivers claim they did not receive payment for all hours worked. The drivers allege that they generally worked more than 40 hours per week and often put in more than 12 hours in a day. While these hours would qualify as overtime hours, they were not paid overtime wages because the company, XPO Last Mile, classified them as independent contractors. The drivers also allege that wages were not paid in a timely manner as required by law – particularly upon termination of employment. Noncompliant wage statements complicated matters.  

According to the California wage lawsuit, XPO Last Mile did not comply with meal and rest break requirements as determined by California Labor Code. They also allegedly failed to comply with wage and hour law, waiting time penalties, reimbursement of expenses necessary during the course of performing job duties, and providing legally required wage statements. If all the drivers eligible as class members participate in the settlement agreement, each will receive approximately $935.18.

This is just one of a number of California wage and hour suits pending during litigation. Two other lawsuits were settled around the same time as the Ibanez case.

If you need more information about filing a class action lawsuit in California or if you have questions about what an experienced employment law attorney can do for you, please get in touch with one of Blumenthal Nordrehaug Bhowmik DeBlouw LLP’s offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside or Chicago.

Quick Dispense, Inc. Faces Allegations of PAGA Violations

A Los Angeles employment lawsuit alleges that Quick Dispense, Inc. violated California labor law by failing to pay non-exempt California employees overtime wages as well as failing to offer legally required rest and meal breaks. Employment law attorneys at Blumenthal Nordrehaug Bhowmik DeBlouw LLP filed the class action lawsuit in September 2019. The class action lawsuit alleges PAGA violations and failure to accurately calculate overtime wages. The lawsuit is pending in LA County Superior Court (Case No. 19STCV29405).

According to the California class action, Quick Dispense, Inc. violated numerous labor laws by:

1.    Failing to provide non-exempt employees with fair payment for all hours worked

2.    Failing to provide non-exempt employees with accurate overtime wages

3.    Failing to provide legally required meal and rest breaks

4.    Failing to provide employees itemized wage statements with accurate listings of hours and wages

5.    Failing to provide payment of wages in a timely manner

6.    Failing to pay minimum wage

7.    Failing to reimburse employees for necessary business expenses

PAGA (the Labor Code Private Attorneys General Act) authorizes aggrieved employees to file lawsuits to seek recovery of civil penalties on behalf of themselves, other employees and the state in response to Labor Code violations. PAGA enables California to enforce state labor laws by allowing the employee experiencing the violation to file suit to recover civil penalties as an act of protecting the public from companies and entities in violation of employment law.

If you need more information about filing a class action lawsuit in California or if you have questions about what an experienced employment law attorney can do for you, please get in touch with one of Blumenthal Nordrehaug Bhowmik DeBlouw LLP’s offices in San Diego, San Francisco, Sacramento, Los Angeles, Riverside or Chicago.

Wage and Hour Law: Chef Sues Raiders Star Antonio Brown for Unpaid Bill

Stefano Tedeschi, “The Sports Chef,” is suing Raiders star Antonio Brown for $40,000 of unpaid bills. Brown allegedly hired The Sports Chef to cater an event at a mansion the Raiders star rented leading up to the Pro Bowl in 2018. Brown’s attorney responded to allegations that they would be filing a motion to dismiss.

According to Tedeschi’s lawsuit, Brown allegedly wrongfully terminated the agreement and wouldn’t allow the chef to get the food or equipment. Tedeschi claims Brown did not provide him with a reason for the termination. The chef declined Brown’s later offer to provide payment in the form of social media advertising. Tedeschi was also advised by one of Brown’s associates not to “make eye contact” with the Raiders star as he left.

Just four months prior to the lawsuit filed by Chef Tedeschi, Brown settled another lawsuit including allegations that he threw items off a South Florida apartment balcony that came close to hitting a two-year-old boy. The boy’s guardian sued Brown for intentional infliction of emotional distress and assault. A second suit was filed in connection to the same incident by the owner of the apartment building. That lawsuit is ongoing.

Brown returned to practice with the team in September after not practicing since the end of July. His agent went on record denying that Brown left the Raiders and thought about retiring after his grievance to wear his preferred helmet did not meet with success. The helmet Brown prefers, the Schutt Air Advantage, is the same helmet Brown has used throughout his career, but it is no longer approved for use in the league.

If you have not been paid for hours you have worked or if you have experienced other employment law violations in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik and DeBlouw LLP today.

Immigrant Laborers File Wage Theft Lawsuit to Reclaim Years of Backpay

In an attempt to reclaim years of backpay they claim they are owed by their employer, immigrant workers in New Jersey filed a wage theft lawsuit just a week after the state imposed stricter penalties. The group of eight immigrants filed a class action lawsuit suing the car wash where they worked alleging they were not receiving minimum wage or overtime payment they were due.

The wage and hour and overtime class action lawsuit alleged that the car wash, Caribbean Car Wash Inc., and the carwash owners were in violation of the Fair Labor Standards Act or FLSA and the state wage and hour law. Plaintiffs allege that it was standard policy at the carwash to allow managers to take the tips of their workers and that the company failed to comply with record-keeping requirements with proper and complete time sheets or records.

The exploitation of immigrant workers in the car wash industry is a widespread issue that happens all too frequently. Many immigrant workers are unaware of their employment rights and are afraid that they will lose their job if they speak up. It is important for immigrant workers to know that the law protects them regardless of their immigration status. Plaintiffs in the suit are Rigoberto Andux Mirabal, Gabriel Cano Arango, Yoan Aquino Martinez, Lucas Alberto Pedronzo Toledo, Julio Cesar Ochoa, Nelson Batista Corbo, William Ricardo Antunez Valdez, and the estate of Carlos Alberto. The plaintiffs listed the Caribbean Car Wash, Oscar Ulpiano, and Roberto Ulpiano (both manage employees and operate the business) as Defendants.

According to plaintiffs in the case, the owner (who owns around 100 car washes and gas stations) employs mostly Latino immigrants and regularly orders them to arrive at work early for their shifts but does not allow them to clock in until customers arrive. Workers also allege that when business is slow, they are required to clock out but remain on duty until more customers arrive. This causes workers to put in many hours without pay.

If you are required to work off the clock or your employer is in violation of employment law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik and DeBlouw LLP today.

Defining the Employment Status of a College Football Player

In recent news, the question was asked, “Is a college football player an employee of the NCAA?” The 9th U.S. Circuit Court of Appeals recent affirmed dismissal of a college football player’s lawsuit for failure to state a legal claim clearly indicates they feel the answer is no. The ruling means that the National Collegiate Athletic Association (NCAA) and the Pac-12 Conference are not legally required to pay a college football player minimum wage and overtime in accordance with federal or California wage laws.

The NCAA, a not-for-profit educational organization, and the Pac-12 Conference were listed as defendants in a proposed class action lawsuit filed by a college football player. The plaintiff claimed they acted as joint employers because they prescribed terms and conditions under which student athletes perform. The appeals court ruled that the football players were not employees under the FLSA due to economic realities in the relationship between the entities listed as defendants and the players. The found that the defendants in the case were regulatory bodies rather than employees and in so doing, upheld a district court’s ruling on the case.

The appeals court stated that the district court was accurate in their dismissal of the college football player’s California overtime claims based on the state’s decision to exclude student athletes from receiving workers compensation benefits combined with the state appellate court’s interpretations of the related legislation.

When considering the district court’s dismissal of the football player’s suit, the 9th Circuit used the “economic realities” test under FLSA. The test considers certain variables:

The plaintiff’s expectation of compensation

The alleged employer’s power to hire and/or fire

Any evidence that action was taken to evade the law

The court found that limitations on scholarships did not establish an expectation of compensation, the players were not able to show that either regulatory entity held the power to fire or hire a player, and that the NCAA rules did not show a clear intent to evade wage and hour law. They also found that the revenue generated by the relationship between the NCAA and their student athletes did not create an employment relationship.

If you have questions about the Fair Labor Standards Act, unpaid overtime or wage and hour law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik and DeBlouw LLP today.