Wal-Mart Settles in Overtime Lawsuit

According to the U.S. Department of Labor, Wal-Mart Stores Inc. has violated federal overtime laws. Back in 2007, Wal-Mart was charged for not paying overtime to thousands of employees. For the last five years, the Labor Department and Wal-Mart have been debating the amounts owed to the affected employees. Wal-Mart finally settled to pay $4.8 million on May 1st. This amount consists of both back pay and damages.

There were about 4,500 employees who were affected by this case of Wal-Mart’s illegal pay practices. These employees had one of two misclassified job roles: Vision Center Manager (VCM) and Asset Protection Coordinator (APC). Before 2007, Wal-Mart classified these job roles as exempt because they were managerial and salaried positions. This lawsuit has ultimately determined that these job roles are non-exempt. Therefore, Wal-Mart is mandated to apply all federal wage and hour requirements to employees with these newly non-exempt positions. Fortunately, Wal-Mart reclassified these positions and adjusted overtime pay practices when this lawsuit first originated.

Over the years, Wal-Mart has been charged in numerous class action cases involving overtime pay. Consequently, the company has acquired a reputation of denying workers overtime pay and other wage and hour rights. Hopefully, their dark history of violating federal overtime laws will not continue into the future. Essentially, this lawsuit has helped to reassure the American people that the U.S. Department of Labor has been very strict in ensuring that employees are given the wages they deserve.

Obviously, it is crucial to understand the differences between exempt and non-exempt employees. Exempt employees are generally classified as personnel who have decision-making and management responsibilities. Thus, exempt employees usually hold executive, administrative, or professional positions. As a good rule, employees should always be considered non-exempt unless they earn at least two times the current minimum wage and clearly meet the job duties of an exempt position. If an employer has difficulty determining exempt/non-exempt statuses, then it is suggested for them to contact competent labor legal counsel to help in their determination.

Wrongful termination lawsuit filed against Baltimore prosecutor's office

Antoinette E. Swiec, a 61-year-old white woman, is suing her former place of employment, the Baltimore prosecutors’ office, for wrongful termination and age, race, and gender discrimination in the workplace. Swiec worked for the Baltimore state attorney’s office for 25 years and was terminated in 2010. She is seeking $400,000 in compensation for wrongful termination. Swiec believes she was fired because her fellow employees were predominantly young, African Americans who she claims wanted her fired.

A spokesman for the state attorney’s office, Mark Cheshire, declined to comment on the wrongful termination suit.

Swiec’s position at the prosecutor’s office was office manager of the Firearms Investigation and Violence Enforcement (FIVE) Unit in 2010. She supervised a clerical staff made up of four African Americans who were predominantly young. She reported to Matthew Fraling III, the FIVE division chief. He is an African American in his 40s.

Swiec claims that her staff “had difficulty in conforming to the requirements of a professional workplace.” She also says that Fraling ignored any concerns that Swiec raised. In November 2010, Swiec claims that her boss suggested she become the clerical supervisor of the Economic Crimes Unit, “where she would supervise a staff that included all white lawyers and support staff of two older black clerical workers and a white investigator.”

In response to that, Matthew Fraling described the proposed arrangement as “promoting a ‘better mix.’” Swiec declined the new position and later that week she was fired by Deputy State’s Attorneys Haven Kodeck and Cynthia Jones. Her lawsuit claims that her “wrongful termination” was under the pretense that she improperly contacted a judge’s chambers. Swiec’s nephew was serving on a jury, and she wanted to meet him for lunch. However, she didn’t know when he would be free, so she called the judge’s chambers to see when the trial would break. She claims she was told to do this by a prosecutor. The judge also agreed with this advice.

“The circumstances of this alleged termination had no basis and were pretextual,” the lawsuit states, claiming there are no professional rules against such contact and that a prosecutor wouldn’t have suggested it if it were wrong. “The desire of the defendant employer was to satisfy the desires of the [FIVE] staff to see plaintiff removed as their supervisor one way or the other.”

Kodeck and Jones no longer work at the prosecutor’s office. Fraling is now doing private practice.

Hourly to Salary

If your employer is changing the way you are paid from hourly to salary, your company may be violating wage and hour laws. Many employees in California believe that it is better to receive a salary as opposed to being paid on an hourly basis. After all, there is a stigma associated with using a punch clock and tracking all of the hours you work. 

However, the truth is that it can be better to be paid on an hourly basis as opposed to a salary basis for one main reason: Overtime pay.

If you are paid on a salary basis, chances are that the company is also classifying you as exempt vs. non-exempt from overtime pay. Therefore, you are  not paid overtime for working more than 8 hour days and/or 40 hour weeks. In turn, your total compensation can be significantly reduced. 

So if it is better to be paid on an hourly basis, how can your employer change your pay from hourly to salary? The biggest misconception in California is that being paid a salary allows companies to avoid paying employees overtime compensation under the California Labor Code and/or Fair Labor Standards Act. 

The truth is that paying an employee a salary only satisfies the first requirement of not paying the employee overtime wages. The second and more important requirement involves the employee’s job duties. What is the employee actually doing on a day to day basis?

For example, suppose you are an administrative employee and your company has changed the way you are paid from hourly to salary. In order to avoid paying you overtime, your primary job duty must involve using indpendent discretion and judgment as to matters of significance that affect the company as a whole. If you are not performing duties that affect that company as a whole more than 50% of the time, even though you are paid a salary, the employer is still required under California law to pay you overtime compensation for all hours worked in excess of 8 in a day or 40 in a workweek. 

If your employer is changing the way you are paid from hourly to salary, it is important that you remain skeptical about the change in the way you are paid. Contact an experienced employment law attorney right away for free legal advice on your rights to fair pay and remember, being paid on a salary basis does NOT mean that your employer is allowed to not pay you overtime wages for working overtime hours. 

Cosmopolitan Las Vegas sued for unpaid wages and overtime

Melodee Megia, a former worker at the Cosmopolitan of Las Vegas, along with several other employees are suing the casino for unpaid wages and unpaid overtime.

The lawsuit is seeking class-action status in representing the hourly workers. This past Friday the suit was filed in Clark County District Court. The suit would potentially consist of more than 3,000 plaintiffs out of the Cosmopolitan’s 4,300 employees.

The suit asserts certain claims that were litigated in previous years against other casinos:

• The hotel required employees in uniform to change into their uniforms in a locker room but did not pay them for the changing time.
• The timekeeping system always rounded work hours in favor of the hotel/casino. The system is based on 15-minute increments, so it is possible for the employees to lose up to an hour of pay per day. Employees must punch in and out four times per day, including meal breaks.
• The employees may have lost out on overtime pay for the time spent changing into uniforms and time-rounding clock.
• Employees were also not paid overtime for when hotel guests who ordered room service were charged a mandatory gratuity. Part of this charge was to be paid to employees, but the Cosmopolitan did not include these “bonuses/commissions” in the regular pay rate for calculating overtime pay.

Cosmopolitan attorneys have only responded that they received notice of the suit before it was filed.

“The company received a notice of intent to file a class action lawsuit related to unpaid compensation for time incurred by employees while on property for donning and doffing of the employees’ required uniform and alleged improper rounding of time for hours worked. The company is in the process of evaluating the notice of intent and cannot at this time determine the potential impact of the notice of intent to sue on the condensed consolidated financial position, cash flows, or the results of operations of the company,” the Cosmopolitan said in last Wednesday’s quarterly report filed with the Securities and Exchange Commission.

The lawsuit asks that Cosmopolitan employees be paid the alleged wages and overtime they are owed and that the Cosmopolitan pay their attorney fees.

In addition to the unpaid wage and overtime claims, Melodee Megia claims that she was wrongfully fired in September because of her pregnancy.

“The stated reason for plaintiff’s termination was that she said ‘bye bye’ instead of ‘good bye’ on the telephone to a room service customer,” the suit says. “This was merely a pretext as plaintiff had been subject to harassing conduct.”

Megia believes she was actually fired because of pregnancy discrimination “and the medical costs and other inherent costs.” She was eight months pregnant when she was terminated.

Megia claims that her supervisor often criticized her for getting pregnant. At one point, the supervisor told Megia to deliver a “pleasure packet” of condoms to a hotel customer and then said, “Isn’t it too late for that? You should have thought about it before getting knocked up.”

Pharmaceutical companies sued for overtime violations

Violations of the Fair Labor Standards Act (FLSA) have become prominent in the pharmaceuticals industry in recent years. The FLSA pertains to standards in minimum wage, overtime pay, recordkeeping, and youth employment. Many pharmaceutical companies have been withholding overtime wages from pharmaceutical representatives that have been working over forty hours per week.

The Overtime section of the FLSA states: “Covered nonexempt employees must receive overtime pay for hours worked over 40 per workweek (any fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods) at a rate not less than one and one-half times the regular rate of pay. There is no limit on the number of hours employees 16 years or older may work in any workweek. The FLSA does not require overtime pay for work on weekends, holidays, or regular days of rest, unless overtime is worked on such days.”

Many pharmaceutical companies have misclassified their reps as exempt from FLSA’s overtime requirement when in fact they were not. Pharmaceutical reps have begun joining together in the face of this wage injustice. For example, in January 2012, a $99 million settlement for Novartis reps, who were unlawfully deprived of overtime wages, was preliminarily approved by a federal court in New York.

Last week the Arizona law firm, JacksonWhite filed a collective action lawsuit against Otsuka America Pharmaceuticals, Inc. for not paying its employees the overtime wages they are entitled under the FLSA. The Complaint was filed on behalf of all Otsuka pharmaceutical representatives employed in the U.S. from May 2009 up to the present.

Otsuka has never paid its employees overtime wages despite requiring them to work much more than 40-hour work weeks. Otsuka’s violation of the FLSA could cost them up to two times the amount of overtime wages that Otsuka should have been paying their pharmaceutical reps over the past three years.

JacksonWhite also has a collective action lawsuit against GlaxoSmithKline, another pharmaceutical company, that is awaiting a decision by the Supreme Court. If the Supreme Court sides with the pharmaceutical reps from Glaxo, then it is probable that the Otsuka reps will also win their case and a precedent would be established for all other pharmaceutical reps.

Reps interested in participating in the Otsuka collective action lawsuit must provide written consent to join. Reps who delay joining may lose damages that are owed to them. Reps from other companies may also be able to join in this case or file a new lawsuit against the company that they work for.

Employee Class Action Litigation

This page contains all the information you need to know about class action lawsuits in California. Class action lawsuits are important for our society because they are a vehicle for employees to come together and assert their rights under California Labor Laws and federal employment laws, such as the Fair Labor Standards Act. Class actions are also important because they make it economically viable for lawyers to work on a contingency basis. When a company in California violates certain laws — such as overtime pay laws - it may be difficult for the employee to find a good lawyer to take the case because the damages may be too small. However, if other employees have faced similar violations, class action lawyers with the resources and experience needed to sue big companies may be willing to take the case and put a stop to the company’s illegal conduct.

Class Action Requirements

In order for a lawsuit to become a class action, the following requirements must be met: 

1. Impracticability - It must not be realistic for all of the employees and class members to bring their own individual claims against the company because there are too many people potentially affected. 
2. Commonality - There must be factual questions or legal questions that are common to all the class members and these common questions must dominate the focus of the litigation so the court does not have to spend time and resources on individualized issues, which would make the case drag on and potentially prejudice the other class members from seeking a speedy recovery. This requirement, known as “commonality” does not mean merely that all the employees have suffered from the same violations. 
3. Typicality - There must be a class representative who has been damaged by the employer in the same way that the members of the class have been damaged. For example This requirement is often referred to as “the class reps claims are typical of the claims of the class members.”
4. Beneficial for Parties - There must be substantial benefit to all the parties involved, including the employees, the employer and the court. In other words, the class action lawsuit 

Benefits of a Class Action Lawsuit

There are several benefits of pursuing a class action lawsuit as opposed to an individual action:

• Contingency Fee Representation — Employees can find contingency fee class action lawyers that have the resources and experience necessary to go up against a big company more easily than if it were an individual lawsuit because it is more economically viable for the law firm.
• Lower Retaliation Problems — Employees don’t have to fear retaliation for being a part of a class action suit because the only name on the lawsuit is that of the class representative and employees are presumed to be part of the class action unless they affirmatively choose to not participate in the class action in which case the employee “opts out” of the case. 
• Preserve Court Resources — Class actions preserve the resources of the courts. Instead of hundreds of individual cases being filed and flooding the courts, a class action suit allows the court to solve the problem one time. This also promotes consistency because if hundreds of individual lawsuits were filed some employees would lose and some would win on the same legal issue. 
• Incentive & Service Awards — In a class action settlement, the class representative (the person who starts the class action lawsuit) may be eligible for a service award in addition to the damages. 
• Putting a Stop to Illegal Conduct — Class action suits can be beneficial because employees can seek an injunction against the company which declares that what the company is doing is illegal and the company cannot continue to violate the law. This is beneficial because an injunction in class action litigation can create a fair workplace. 

If You Feel Cheated at Work, You’re Probably Not Alone

Despite some of the strongest employment rights laws in the nation, California employees are routinely cheated out of rightful earnings by employers who put profits before the law. The class action lawyers at Blumenthal, Nordrehaug & Bhowmik are known throughout the state of California for using class action lawsuits to protect groups of workers in cases involving overtime pay laws. 

There are several advantages for employees to use class action lawsuits to vindicate their employee rights. Retaining a class action lawyer may be benefecial for employees in that:

• Employees can be responsible for stopping illegal employment practices not only for themselves, but also for their co-workers
• Workers can contribute to the creation of good public policy
• Employees can earn an extra Service Award Payment in addition to the money they would win in the lawsuit

As the first person to initiate a class action lawsuit against a business, your employer will be careful to treat you fairly once you have retained a class action lawyer. You may be eligible to receive significant compensation as a service award. The service award money is in addition to the settlement or money a jury awards the class representative in a class action lawsuit. Take a look at some of our class action settlements.

Our Employment Lawyers Represent Workers in Class Action Lawsuits

We are the California class action attorneys of Blumenthal, Nordrehaug & Bhowmik. Our no win no fee contingency attorneys focus on California class action lawsuits involving employer violations of the California Labor Code and Fair Labor Standards Act. Our overtime pay lawyers focus on claims involving exempt vs. non-exempt employees. Contact a class action lawyer in San Diego or San Francisco for free legal advice about starting or joining class action lawsuits.

With a statewide class action practice and offices in San Diego, San Francisco and San Jose, our class action attorneys are known throughout the state of California for representing workers in class action lawsuits against big companies. Click here to see our class action lawsuit list.

Free Consultation ▪ Contingency Fee Class Action Attorneys

Learn more about federal and state class action lawsuits. If you are feeling cheated by your employer, chances are you aren’t alone.The class action attorneys at Blumenthal, Nordrehaug & Bhowmik represent employees in class action lawsuits against employers in San Diego, Los Angeles, San Francisco and Santa Clara, and throughout the rest of California.

FAMILY MEDICAL LEAVE ACT

Protecting Family Leave Rights Under the FMLA, FEHA and CFRA in California

Several state and federal laws protect employees from adverse employer action related to medical leave, family leave and time off for pregnancy and maternity. If you encounter trouble in taking advantage of your protected rights to family or medical leave, contact an employment law attorney at Blumenthal, Nordrehaug & Bhowmik for a free consultation.

We represent clients all over California on the full range of employment law claims, from wage and hour violations to workplace discrimination. Our lawyers and staff are fully committed to protecting employee interests and the right to fair treatment at work.

Call 800-568-8020 for a Free Case Evaluation

The main tools at our disposal for protecting the right to family and medical leave are the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA). An additional state statute, the California Fair Employment and Housing Act (FEHA), protects employees from discrimination or adverse employer action motivated by the employee’s use of a right protected under the other laws.

If you have been on the job full-time for at least a year, you have the right to 12 weeks of unpaid leave to cover any of a number of personal or family needs:

• Personal illness or surgery
• Family member’s illness or surgery
• Physical therapy or convalescence
• Pregnancy or maternity
• Adoption

Some workers encounter problems with getting the company to agree to a period of protected leave, but it’s at least as common to run into trouble when you’re ready to return to work. Reassignments, transfers or changes in job description are often thinly veiled attempts to get you to quit. Sometimes your employer will save you the trouble and find an excuse not to let you back.

Our lawyers can help you recover damages from employers who interfere with the family leave rights of their employees all over California: Los Angeles, San Diego, San Francisco and Sacramento. To learn more about our ability to protect your rights under state or federal law, contact the California Family Rights Act attorneys at Blumenthal, Nordrehaug & Bhowmik.