Federal Aviation Administration Authorization Act vs. California’s Meal and Rest Break Requirements

Initially, wage and hour putative class action brought by the same truck drivers was dismissed. Alleged claims were based on violations of California’s meal break laws. The class action was dismissed on the ground that the Federal Aviation Administration Act (FAAAA) preempted California meal break laws. It was the second time in recent months that a court upheld the argument that California’s break laws are preempted by the FAAAA. The FAAAA specifically preempts state laws when there is a significant impact on the “routes, service or prices” of motor carriers.

Truck drivers received a boost recently as their attempt to revive the class action suit against Vitran Express Inc. was supported by the Ninth Circuit court’s decision that the Federal Aviation Administration Act did not preempt California’s meal and rest break requirements. Many are watching the progress of the case.

Additional Background on the Case:

Plaintiffs were former truck drivers of Performance Food Group, Inc. (PFG), located in California. Plaintiffs claimed that PFG arranged delivery routes in order to ensure excellent customer service and timely delivery of cargo without taking into account “time pressure” on the truckers who were being given delivery windows and other policies that prevented them from taking meal breaks.

If you have questions about the California meal break laws, ask the experts at Blumenthal, Nordrehaug & Bhowmik. 

Not to be Left Out, a Cincinnati Bengals Cheerleader Filed a Class Action Complaint

After a Raiders cheerleader filed a class action suit earlier this year, many assumed it would spur others in similar organizations to protest payment and wage problems in the industry with additional suits. As predicted, another cheerleader has filed a Class Action Complaint, this time claiming that it is the Bengals that are in violation of the Fair Labor Standards Act and Ohio Minimum Fair Wage Standards Act. Alexa Brenneman, Cincinnati Bengals cheerleader from May 2013 through January 2014, claimed she was compensated $90 per home game (at most). Her Class Action Complaint against the Cincinnati Bengals claims that she was underpaid for the hours of work put in on behalf of the team and includes all persons “employed by Defendant as a Cincinnati Bengal cheerleader at any time from February 10, 2011 through the present.”

Brenneman specified that Bengal cheerleaders were required to attend mandatory practices, public appearances, pregame time in the stadium, photo shoots for calendars, promotions, etc. Hours required amounted to more than 300 hours per year. Considering the pay rate offered, Brenneman claims the actual pay rate when hours dedicated are considered comes out to less than $2.85/hour which is drastically lower than Ohio’s minimum wage rate in 2013 ($7.85).

It’s interesting to note that the Brenneman specified other organization in her complaint as having positive pay structures. She stated that the Seahawks cheerleaders are paid hourly wages and overtime as specified by law and for all hours required. She also stated that the Cavaliers’’ cheerleaders are provided compensation for required time outside of games.

Every employee should expect adequate compensation for all required job duties. If you feel you are not being treated fairly by your employer, get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. 

Employees and Their Smartphones: Is Your Smartphone Overworking You?

In modern American culture most people are hopelessly attached to their smartphones. If that’s not the case, the remaining few (with rare exceptions) can’t deny that they have an extremely close relationship with other technology (i.e. their computer, laptop, tablet, etc.) There are a multitude of benefits that come from living in this technological day and age, but because of smartphones and all the other beloved technology, work is bleeding into employees’ personal time.

The recession put a lot of pressure on employers to get the most of their employees. As a result, American business owners are squeezing their workers and cutting costs at the same time. One way in which many American employers are doing so is by accessing their workers after hours through all of the convenient technology that leaves employees available 24/7. Vacations are often unrecognizable as such due to the fact that contact is never severed with the employer. Many employees find it hard to differentiate between hours worked and hours off due to the easy and frequent access employers avail themselves of freely.

Experts agree that if employers had to bear the actual expense of paying for the overtime hours they are demanding, they would have actively sought a different solution such as hiring more workers during the economic recovery.

In response to the seemingly never ending after hours access provided by technology, employees are asking the courts to find a solution. It’s a changing time as courts attempt to reconcile laws that have been in place for decades with technological trends that have drastically altered the workplace landscape. Never before have employees been so irrevocably connected to their employers without break.

In 2011, there were 7,006 wage-and-hour suits filed (many of them class action suits) in federal court. This was nearly quadruple the total in the year 2000. In 2011, the Labor Department was able to recover $225 million in employee back wages. This was up 28% from the previous year. 300 wage-and-hour investigators were added in 2010 and 2011 alone which resulted in a 40% staff increase (to a total of 1,050). This was done in what was openly declared and effort to protect America’s workers.

Consider the facts and then consider your employer/employee relationship. If you feel that you are stuck in a 24/7 job with 40-hour/week pay, get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. Don’t let your smartphone take the blame. 

Remember the Raiderettes: Get Appropriate Compensation for Your Work

Employees across the nation should take a page from the Raiderettes this year. When the cheerleaders felt that they weren’t being fairly compensated for their hours, their overtime, business expenses, etc. they didn’t just keep smiling and cheering their team on. They kept smiling, cheering their team on and filed a class action lawsuit against the Raiders.

In addition to above cited failures, the class action lawsuit also claims that the Raiders failed to provide their cheerleaders (The Raiderettes) with appropriate meal/rest breaks. According to court documents, Raiderettes are paid $1,250 per season. When hours worked are taken into consideration, this amounts to less than $5.00/hour. Every Raiderette is required to sign a contract that states they will receive their compensation at the end of the season and that their compensation will be subject to fines.

As a result of the filing of this class action lawsuit, any Raiders cheerleaders from the past four seasons can now come forward seeking damages. In the typical season, the Raiders employ an average of 40 cheerleaders. That means the Raiders’ off-season legal problems are likely to grow. If the court rules in favor of the Raiderettes, any cheerleader on the most recent season’s squad could be awarded lost wages and penalties. Cheerleaders from previous seasons joining the class action lawsuit could be awarded lost wages.

Experts considering details of the case indicate that the subpar treatment of cheerleaders is not limited to the Raiders; it appears other cheerleading squads across the NFL may have similar complaints. They are being encouraged to come forward.

If you find yourself in a situation with less than adequate compensation for job duties expected, unreimbursed expenses incurred as a result of your job, or unpaid overtime - get in touch with the experts at Blumenthal, Nordrehaug & Bhowmik today. Class action lawsuits aren’t just for cheerleaders.   

Unpaid Overtime: What Type of Plaintiff Are You?

With the continued increase in unpaid overtime lawsuits in almost every industry, employees may find it useful to consider the various types of plaintiffs simply to get an idea of where their own workplace situation lies.

What Type of Plaintiff Are You?

1. Do you find yourself a slave to your handheld device? When you leave work, do you continue to answer questions, delve through documents and conduct brainstorming sessions? Do you often find yourself in arguments with your significant other because they simply want you to attend a family function, complete a household chore or actively involve yourself in a conversation from beginning to end without being interrupted by someone at work that needs you? If so, you could be a “worker with a handheld device” plaintiff. You go to work and you come home, but you never seem to be off the clock. You answer calls, check emails, and basically continue working into the night. Many would classify all this “after hour” work as unpaid overtime.

2. Does your job require a lot of in-office prep in order to go “on the clock?” Do you have to arrive early in order to complete a series of log ins, paper pushing, or mandatory meetings before you can actually “go to work?” If so, you might be an “off the clock work in the office” plaintiff. Many are asking the question (in court) whether or not they should be able to clock in when they get to work to prepare to work or if they are donating the time it takes to perform necessary functions prior to starting the job duties employers are willing to pay for.

3. Do you enjoy the use of a fancy title without the fancy job duties? Many employers have turned to the non-promotion promotion as a solution to overtime. “Promoting” employees without actually giving them managerial responsibilities is a game plan used by employers looking to keep labor costs down. Many managerial positions are exempt from overtime pay laws and requirements. If you found yourself impressed with an empty title at first, don’t feel bad, you aren’t the only one and you could be a “fancy title” plaintiff.

If you have more questions now that you understand the basics behind many of the employment law related suits you’ve been reading about in the news, get in touch with the attorneys at Blumenthal, Nordrehaug & Bhowmik today and get the right answers. 

Getting Paid: Bonuses, Wages and Commissions

Under California statutory law, “wages” enjoy a very broad definition. Case law has included “bonuses” in the definition. Why does that matter to California employees?

If you are discharged, any wages you have earned up to and including the date of termination are due and payable – immediately on the date of termination. Employees who find themselves in the regrettable situation of being let go or fired (or even in need of quitting) should expect payment in full of all wages earned prior to signing any release, etc. California employers who fail to pay wages in a timely manner (that is, on the date of termination) can find themselves subject to waiting time penalties, interest and/or attorney’s fees.

Waiting Time Penalties: California employers who fail to pay wages due an employee on the date of their termination “willfully,” the wages of said employee will continue as a penalty from date of termination (at the same rate) until paid or other appropriate action is taken.

Interest: The court awards interest on all due and unpaid wages at an annual rate of 10% accruing from the date wages were due/payable.

Attorney’s Fees: When action is brought for nonpayment of wages, benefits, etc. reasonable attorney’s fees can be awarded to the prevailing party by the court.

California law has employees leaving a job covered. There should be no reason to lose wages already earned. There should not even be a reason to wait for wages already earned.

To resolve non-payment issues with previous employers quickly and professionally, contact Blumenthal, Nordrehaug & Bhowmik. 

Unpaid Commission: Can it Be Recovered?

Most feel they have a solid understanding of overtime pay and whether or not they are receiving what they deserve, but when it comes to commissions, there seems to be additional confusion. What is unpaid commission and when is an employee able to recover unpaid commission?

What is Unpaid Commission?

Before we can define unpaid commission, it’s important to define commission wages in general. Commission wages are common in many industries, but prevalent in the computer and technology industries particularly. According to California wage law, commission wages refers to compensation that is paid as a percentage of the price of the product or service that is being sold. Commissions can also be based on the number of items sold. Disputes regarding commission wages and unpaid commissions are often resolved under the same legal principles as bonuses.

When are commissions “unpaid?” The easy answer is that commissions are classified as unpaid when they have been earned and never received. Technically the commission is earned by the employee who “procures cause” for the sale or other event resulting in commission pay. Disputes often arise when management intervenes during the sales process. When management is involved at some point during a sale, it is important to note the point at which someone procures cause for the sale and who was handling the customer at that point in time. This is the individual who has technically earned the agreed upon commission.

Obtaining Unpaid Commission:

If you feel you are entitled to commission that you never received, seek legal counsel. Employers frequently change compensation plans, utilize unfair provisions and/or adopt a very narrow interpretation of a commission agreement or plan. In some cases, employers are forced to seek unpaid commission post-employment. It’s important to note that employees who no longer work for a company can still be due commission on sales procured during their employment. Employers can’t reap the benefit of your efforts while simultaneously ignoring the agreement to provide you with a commission for those same efforts.

Employers will often work their compensation plans in various ways in order to justify commission forfeiture with little to no cause. Examples include employers who add verbiage making commission payment “exclusive” to current employees or allowing the employer to alter the commission agreement in certain situations, etc. California wage laws can help former and current employees recover commissions. The courts may see the commission agreement differently than your employer.

Call Blumenthal, Nordrehaug & Bhowmik today and find out how your unique circumstances can be taken into consideration when attempting to obtain unpaid commissions.