$16.8M Overtime Deal on Kellogg Case is a Go

A federal judge threw preliminary support behind a $16.8 million deal to settle overtime claims against Kellogg Co. The suit alleges that the company misclassified its workers and failed to properly compensate workers for overtime they earned. If the settlement goes through it ends claims that Kellogg violated the Fair Labor Standards Act (FLSA).

According to plaintiff, Patricia Thomas, Kellogg deprived their territory managers and their retail store representatives of premium pay when workers were completing hours in excess of 40 per week. In early 2014, the class was certified. Following class certification, Kellogg attempted to squash the suit repeatedly by arguing that the employees failed to show that class members were similarly situated. In their bed for the judge’s approval, the class brought two things to the judge’s attention: without proving that Kellogg willfully violated the FLSA, 20% of the plaintiffs would recover nothing, and if the company proved that the fluctuating workweek applies, but the class prevailed on all other issues, the plaintiffs’ recovery dropped to about 30% of the total damages claimed.

In March 2014, the third amended complaint was filed claiming that the territory managers and retail store reps often worked over 60 hours in one workweek but did not receive the time-and-a-half premium overtime rate that the workers were allegedly due.

Plaintiffs allege that their job duties were to police the store locations contracted with Kellogg to ensure their products were properly displayed, that Kellogg received access to the correct amount of square footage on shelves, to build and stock Kellogg displays at customer store locations, and to monitor the freshness of the Kellogg products. Specifically, the amended complaint stated that the rep’s primary job duty was not sales. Motions for summary judgement were rejected in late 2016. The core issues of the case include: whether or not plaintiffs engaged in sales and were sales the primary duty. The settlement comes after years of litigation.

If you need assistance determining overtime payment or if you aren’t being paid overtime you are due, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

$4.2M to End California Food Service Co. Pay Suit

A group of service technicians responsible for handling equipment for an ITW Food Equipment Group division out of California requested that the California federal court offer initial approval of a $4.2 million settlement to resolve allegations that the company did not provide equal pay to their technicians.

The group of technicians make up a class of more than 200. The lead plaintiff is Joseluis Alcantar. Alcantar worked for food equipment service provider, Hobart Service, or over two decades. Allegedly, Hobart Foods did not provide technicians with pay for the transportation of tools to and from home when servicing their first and last customers of each work day. Following seven years of litigation, plaintiffs are currently requesting that the judge approve the preliminary agreement that was reached just before the trial commenced.

Class members in receipt of settlement money would receive a portion based on calculations considering their amount of time as an employee and other relevant factors. The motion filed declares the settlement as fair, reasonable and adequate. The motion cited the reason behind plaintiff support of the settlement as the requirement for defendants to conduct remediation measures clarifying the vehicle usage agreement that should address the commuting options available to service technicians in regard to their work vehicles.

Service technicians in the group are responsible for maintenance of the company’s food service equipment at a number of different customer locations. In order to complete their job duties, techs are required to transport tools and other necessary equipment to the sites. The company calculating time worked with a deduction for “normal commute time” at the start and finish of the work day. Plaintiffs allege this is in violation of California’s labor laws.

The original complaint was filed in 2011. While the court initially sided with the company and refused to grant class certification in 2012, the plaintiffs eventually appealed to the Ninth Circuit and the previous ruling was overturned. In 2016, class certification was granted allowing the overtime claim to move forward. A trial date was set for early 2018.

After a large amount of discovery with 30 depositions and the production of 142,000 documents, and several failed attempts to resolve the suit, an agreement was reached nine days prior to the trial.

If you have concerns regarding California wage and hour law or other California employment law concerns, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Unequal Pay Suit Against Uber To Be Settled at $10M

Uber Technologies Inc. agreed to pay a $10 million settlement this month in order to settle an unequal pay suit calling gender and race discrepancies into question. They also agreed to make some changes to their business practices used for evaluating their workers. Together the two stipulations form the basis for their settlement agreement ending a proposed California class action.

The proposed California class action was filed by female software engineers and engineers of color who allege that Uber did not pay them equally. If the settlement is approved, it would offer $23,800 to each of 420 engineers (approximately) included in the class. All were allegedly affected negatively by the company’s discriminatory pay practices (i.e. performance evaluation system used by Uber supervisors to rank workers). In addition, the company would need to work with a third-party company to create a new system to be used at Uber for promotion evaluation, general employee evaluations, and as a means of determining worker compensation.

Claims included in this particular case date back to summer of 2013. Uber claims they have made a lot of changes since some of the older claims have been filed. In fact, they stated that in the past year they have already developed a new salary and equity structure based on the market and overhauled their employee performance review process. They also stated that they published their very first Diversity & Inclusion report along with delivering various diversity training in leadership conferences to thousands of their employees throughout the world.

The complaint was filed by Ingrid Avendaño, Roxana del Toro Lopez and Ana Medina in California superior court in October 2017. The complaint claimed (on behalf of themselves and other aggrieved employees suffering from Uber’s unfair business practices) that the company violated the California Equal Pay Act and Private Attorneys General Act. The system the plaintiffs claim was in place at the company systematically undervalued female employees and employees of color in comparison to the male, white, or Asian American peers in similar positions. The plaintiffs claim that female employees and employees of color at Uber received lower rankings on average despite equal or even better performance than their co-workers.

The case was removed to federal court on the same day that the proposed settlement was filed, and del Toro Lopez filed an amended complaint. These changes established a class for California workers as well as another class for workers across the country – alleging various violations of both state and federal laws. The complaint filed noted the Uber workplace culture as problematic and related to the pay issue.

Uber is not required to accept any blame or admit any wrong in the situation according to the terms of the proposed settlement. It does require a new evaluation system as well as a system to monitor base salaries, bonuses and promotions internally in order to identify any potential negative effects on female workers and/or women of color.

If you are experiencing pay discrepancies in the workplace or if you would like more information on filing a proposed class action, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Labor Code Lawsuit Alleges RFI Enterprises Failed to Pay Overtime

A California Labor Code lawsuit was recently filed against RFI Enterprises. According to the suit, the company wrongfully denied their employee overtime.

Plaintiff, Brian P., was employed at RFI Enterprises’ San Jose location. The company is a multi-systems integrator established in 1979 that does business across the nation with offices in California, Washington and Nevada. They install and monitor fire and life safety solutions. They offer a number of different systems: life safety systems, electronic access control, intrusion detection, closed circuit television, alarms, and fire safety. Their monitoring center provides 24/7 support to their various systems.

According to California labor law, employers are required to pay overtime. The required overtime pay rate is one and a half times the regular rate of pay for any hours worked over eight in one day or 40 in one week. According to the plaintiff in this case, the company did not factor wage premiums or shift differential pay into the regular rate of pay used to calculate their overtime pay rates.

According to the overtime lawsuit against RFI Enterprises, the company calculated overtime pay rates that were based on the employees’ base hourly rate of pay. This resulted in a lower overtime pay rate below the minimum overtime pay rate required by law. California labor law also requires that employers provide their employees with accurate wage statements. The plaintiff in the case also alleges that the employer was in violation of this regulation.

Not only does the plaintiff claim that the company was in violation of overtime pay rates and the regulation requiring that they provide accurate wage statements, but that the company did so maliciously and intentionally. According to the complaint, the company was unwilling to current their unfair business practices.

RFI Enterprises, the Defendants, allegedly engaged and have continued to engage in both unfair and unlawful business practices as detailed above. The plaintiff proposes to represent a class of employees in the California class action. A subclass has also been proposed to represent employees paid shift differential pay after Jan. 12, 2017.

If you fear your employer is in violation of California labor code or you have questions about what makes an employee exempt from overtime, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

$13 Million Verdict Awarded to UCLA Doctor in Retaliation and Gender Discrimination Case

A California man was awarded a $13 million verdict in February 2018 after filing against a former employer, The Regents of the University of California (UCLA). The plaintiff, Dr. Lauren Pinter-Brown, alleged that UCLA discriminated against her on the basis of her gender and then retaliated against her for complaining about the problem. The escalating issue eventually led to Dr. Lauren Pinter-Brown’s resignation.

The doctor started work with the UCLA Medical Center in 2005. She was the Director of the UCLA Lymphoma Program. During her entire tenure at UCLA, she received exemplary peer reviews, awards and even accolades. For her first 8 years with the university, Pinter-Brown was one of only two senior female faculty members in the program.

When Pinter-Brown raised harassment concerns with a male co-worker, she became the target of various workplace audits, her research privileges were suspended, her title was taken, etc. Throughout the ordeal, Pinter-Brown’s reputation was irreparably harmed. The university made no apparent efforts to solve the problem or alleviate the situation even though Pinter-Brown made both verbal and written complaints about the issues. The plaintiff claims that she was forced to “play dead” at work in order to avoid further confrontations or an escalation of the problem the university chose to ignore until she eventually simply resigned from her position.

In February 2018, a California jury found her Pinter-Brown’s favor on claims of discrimination and retaliation. Pinter-Brown was awarded $3,011,671 in lost earnings from the university and an additional $10,000,000 in damages for her emotional distress. The total awarded was over $13 million.

The plaintiff’s attorney was quoted discussing the doctor’s time with the university and describing her has an “outstanding employee.” The plaintiff’s legal counsel felt it was very clear that Pinter-Brown experienced workplace retaliation as a direct result of openly complaining about harassment by a male colleague. The jury of her peers from California vindicated her complaints and those in favor of Pinter-Brown hope it can be another step in fixing a wide-spread problem with ignoring the problem of gender inequality.

If you have a problem with workplace retaliation or if you have attempted to resolve employment law violations in the workplace unsuccessfully, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Transamerica not a Fiduciary in Fee Case According to Court

In recent news, the 9th U.S. Circuit Court of Appeals remanded the ERISA suit against Transamerica Life Insurance Company (TLIC) back to a district court with instructions to dismiss it. In the case, 401(k) participants allege that TLIC and affiliates violated the Employee Retirement Income Security Act when charging fees and in the administration of specified investment accounts.

According to the complaint, TLIC was in violation of ERISA because they charged fees on separate accounts on top of fees charged by managers of underlying investments, processing “Investment Management Charge” on separate accounts, receiving revenue sharing payments from underlying investment account managers, failing to invest in the lowest prices share class of mutual funds, and failing to pass savings in fees along to plan participants.

The group of plaintiffs previously filed a separate lawsuit listing John Hancock as the defendant and including similar allegations. In the case against John Hancock, the 3rd U.S. Circuit Court of Appeals found that the company was not acting as a fiduciary regarding the allegations creating the foundation of the case. The 9th Circuit agreed with the 3rd Circuit in that finding the service provider to be a fiduciary would create absurd situations. Service providers negotiate fees. If they were simultaneously responsible as fiduciaries, they would need to promise that their fees were not any higher than the fees of any competitor. This would blow their ability to negotiate at arm’s length with an employer out of the water. It would also leave any employer who agreed to a fee structure the option to later sue to have it lowered simply by invoking the fiduciary obligation of the administrator. Therefore, the court finds that the service provider owes no fiduciary duty in regard to the negotiation of fee compensation because the trustees had the option to reject the provider’s product and select a different provider. The choice was in their hands. The other allegations failed to stick for the same reason. TLIC did not have the fiduciary duty in regard to the other matters either. 

If you need assistance considering ERISA violations or if you feel your employer has breached their fiduciary duty, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Systematic Pay Discrimination Against Women at Vice Media?

Elizabeth Rose, a former female employee for Vice Media, alleged that the company discriminates against women on their workforce. In fact, in the lawsuit filed for pay discrimination, she stated that the company systematically and intentionally pays their female employees less than their male counterparts in the workplace.

Vice Media operates Viceland, a cable channel, and also produces two programs for HBO. Rose worked at the millennial focused media company in both New York and Los Angeles (2014-2016). She was employed as a channel manager and project manager.

Rose’s complaint was filed in Los Angeles County Superior Court. In her complaint, Rose alleges that as part of her job, she received internal memos showing salaries of approximately 35 employees. These notifications portrayed a clear pay disparity with women making far less on the job than male employees doing the same or nearly the same work. During her time at the company, Rose became aware that a male subordinate that she had actually hired was making $25,000 more per year than her. He was later promoted to be her supervisor. A male Vice Media executive advised Rose that the man was a good fit for male clients personality-wise.

Rose claims in the lawsuit that Vice Media violated equal pay laws in both California and New York as well as being in violation of the federal law. Three proposed classes would enable women employed by Vice Media for the last six years to join the suit. Between the three proposed classes, more than 700 women could be eligible to join the lawsuit.

Vice Media officially responded that they were reviewing the complaint made by Rose. They also stated that they are committed to providing a respectful, inclusive and equal workplace for employees. The company defended their claim by advising that a pay parity audit was actually started last year and that the company has a goal of 50/50 male/female representation at every level of the business by 2020. They have also recently created a Diversity & Inclusion Advisory Board to address similar issues.

If you fear you are not being paid fairly in the workplace, or if there are other employment law violations in your place of employment, please get in touch with the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.