MacLaren Youth Correctional Facility Faces Employee Claims of Asbestos Exposure

On February 20, 2018, a former employee of MacLaren Youth Correctional Facility (YCF) filed a lawsuit claiming exposure to asbestos-containing materials. The plaintiff alleges that the facility’s management knowingly allowed staff (and young offenders assigned to the location) to be exposed to asbestos-containing materials while they worked on a project to upgrade campus cottages and buildings. The plaintiff, John N., advised the media that he was knowingly exposed while he spent close to a year and a half supervising a group of youth helping out on some MacLaren YCF remodeling.

The remodeling project was approved by Oregon State Legislature in 2015. The plaintiff was ordered to replace wallboard panels that had been removed in an in-process campus cottage in February 2017 by his supervisor, Mike B. Mike had discovered there was an unexpected tour of state officials. He is a named defendant in the case. He was heard by the plaintiff explaining that he didn’t want the officials to discover the asbestos-containing materials in the walls of Kincaid Cottage.

The plaintiff was alarmed by the information and was floored that management had not advised anyone of the situation. John alleges that after his supervisor made this confession to him and a painter on site, they were put on administrative leave. He was accused of assisting minors on site in concealing items that were not allowed at the facility while he supervised teams of youth working on the remodel.

John, the plaintiff, filed a complaint with Occupational and Safety Administration (OSHA) within the month. A fine was levied against Oregon Youth Authority (OYA) for dual violations of the Oregon Safe Employment Act. OSHA’s investigation also found negligence on the part of OYA in notifying employees about the presence of the asbestos-containing materials he, other workers and the youth crews were exposed to on site. The organization was also found non-compliant in providing necessary employee training regarding asbestos.

John N. was also fired only days after OYA was formally fined. As retaliating against an employee is also in violation of employment law, John is asking for damages amounting to $935,000.

If you have questions regarding an unsafe workplace or if you are experiencing retaliation in the workplace, 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.

Grub-Hub Drivers Officially Ruled Contractors and The Gig-Economy is Taking Notice

A recent ruling declared Grub-Hub drivers independent contractors officially and the gig-economy is taking notice. The ruling has the potential to affect Uber litigation as it is also hinging on employment status questions. The significant court decision was handed down by a federal judge asked to rule whether drivers for GrubHub Inc. are actually independent contractors or employees. Since Uber Technologies Inc. has a similar business model that depends on pairing customers with products/services through a smart phone app, it’s not surprising that employment law litigation facing both parties includes similar issues.

The first of its kind ruling was delivered by U.S. Magistrate Judge Jacqueline Scott Corley in San Francisco. According to the ruling, a gig-economy driver does not qualify for employee protections under California law. Her ruling was based on her interpretation of California law on the matter. She did note that the law, as it stands, is an all-or-nothing proposition and the advent of the gig economy’s low wage workforce engaging in low skill, high flexibility, episodic jobs may mean the legislature will need to readdress the issue. 

The GrubHub suit was filed by Raif Lawson. Lawson worked as a food-delivery driver for less than six months while he pursued an acting/writing career. He claimed GrubHub violated California labor laws by not reimbursing him for expenses, failing to pay minimum wage and failing to pay overtime pay for hours worked in excess of either per day or 40/week.

Determining whether Lawson was an independent contractor or an employee hinged on pinning down how much control GrubHub exerts over their drivers’ work lives. GrubHub argued that Lawson held the reins as he decided when, where and how frequently he performed deliveries. Lawson’s attorney contended that GrubHub exerted control over drivers by expecting them to be available to accept assignments during shifts they sign up for and to remain in prescribed geographical regions.

GrubHub is happy with the ruling, as are many other gig-economy front runners facing similar litigation and questions of misclassification. They feel the ruling validates the freedom that GrubHub drivers enjoy. They also stated that the would make sure drivers would retain the advantage of flexibility that made working with GrubHub advantageous.

If you have questions about misclassification in the work place or if you need the help of an experienced California employment lawyer, get in touch with Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Home Depot Faces Former Employee's Allegations of Overtime Violations

Marco A. Batani, out of San Diego, recently filed suit against Home Depot, alleging unlawful business practices and failure to pay overtime. The complaint was filed January 2018 in U.S. District Court for the Southern District of California. In Batani’s complaint, it states that he was employed at Home Depot between 2016 and 2017 as a sales consultant, but that he was misclassified as an outside salesperson. Yet his duties while on the job consisted of mainly non-exempt tasks.

In promotional materials describing potential careers with The Home Depot, the one-stop shop for customers building a home, the company describes a warm workplace culture. The company website states that they couldn’t have “done it without the culture and feeling of home and family among the associates in our stores, distribution centers and corporate office.” Yet the claims made by Batani in the recent California overtime lawsuit paint a far different picture of the situation.

In Batani’s suit, he claims that during his employment he consistently worked over eight hours per day and more than 40 hours per week – without being provided with the legally required overtime compensation. (According the FLSA, employers are required to provide overtime pay for any hours worked beyond “full time.” The law also defines full time as 8 hours per day and/or 40 hours/week.) 

Batani also alleges that he was not provided with the legally required meal periods and was not reimbursed for all job expenses.

In addition to the above allegations, Batani claims that Home Depot USA failed to provide employees with wages due at separation, failed to provide timely and accurate wage statements, and failed to reimburse business expenses. All of the allegations are in vio0lation of state law.

Batani seeks a trial by jury. He filed suit to seek damages of $100, an aggregate penalty up to $4,000, compensatory and liquidated damages, nominal damages, restitution and disgorgement, punitive and exemplary damages and attorneys’ fees. He also seeks any additional relief the court may deem just in the situation.

If you have questions about overtime pay or if your employer is refusing to provide you with required meal and rest breaks, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Dat Dog Lawsuit Dares to Ask, "How Should Tips Be Divided?"

A recent lawsuit filed by workers at Dat Dog questioning the legality of the restaurant owner’s tip-sharing practices joins a national debate about how gratuities should be shared among co-workers. Who actually owns the tip that a diner leaves behind?

Tip-sharing is a commonplace occurrence in the restaurant industry. Servers frequently share an agreed upon (or at least pre-defined) percentage of their tips at the end of their shift with other staff, i.e. bartenders, bussers, etc. Another method is pooling all tips and distributing the total tips received for the night amongst designated staff. The Dat Dog lawsuit, filed in U.S. District Court in New Orleans, was filed by employees prepared to challenge the tip-pooling system they are required to participate in at work.

The Dat Dog tip-sharing policy requires that bartenders’ tips be split with back-of-the-house employees, i.e. cooks, dishwashers, managers, etc. The suit claims this practice is actually illegal – a claim that Dat Dog rejects claiming that the hot dog industry is not your typical restaurant and that all employees are trained to perform all job functions and to chip in as necessary during their shifts as an equal team.

According to the federal Fair Labor Standards Act two-tier wage system, restaurants are legally allowed to pay tipped employees less than minimum wage as long as an employee brings in enough tips from customers to reach at least minimum wage.  The law restricts tip-pooling to other, similarly tipped employees regularly interacting with customers. The law also bans mandated tip-sharing with back-of-house employees. Employers are required to pay kitchen staff, etc. at least the full minimum wage. 

In the Dat Dog lawsuit, bartenders claim that the managers require them to share their tips with back-of-house employees which creates an illegal tip pool according to the federal Fair Labor Standards Act. The bartenders who filed suit, Zachary Henderson and Kaleigh Thomas, allege that the company deducts 5% of the shift’s gross sales (not including alcohol sales) from the bartenders’ wages. The company then shares that 5% with managers, cooks, dishwashers, etc., all of whom are already being paid $7.25/hour as required. According to the plaintiffs’ allegations, this practice is the equivalent of a forced wage deduction scheme and does not qualify as a legal tip pool.

In support of this theory, Henderson claims that when the required tip deduction amount increased from 3% to 5% in Spring 2017, the manager responded to his complaint by explaining that the back of house employees wanted a raise and they company didn’t have the budget to raise their hourly pay. This line of reasoning supports the theory that the company is taking money from the bartenders in order to fund higher pay for the back of house staff.

If you have questions about wage and hour law or if you feel you are being unfairly treated in the workplace, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

NY Federal Judge Certified 20,000-Plus Member Class in NYU ERISA Plan Suit

U.S. District Judge Katherine B. Forrest certified a 20,000-plus member class including investors from two New York University retirement plans, finding that workers can sue together due to the fact that their Employee Retirement Income Security Act suit does present common questions. The questions presented by the NYU ERISA plan suit can be broken down to just two:

1. Did the school pay too much to maintain their investments?

2. Did the school offer poor investment options?

When seeking qualification for certification, U.S. District Judge Katherine B. Forrest depended on the U.S. Supreme Court certification bar established in the 2011 decision in Walmart v. Dukes because the questions being asked and claims being filed were similar. Plaintiffs in the case claim that the university breached their fiduciary duty through plan mismanagement. If this is, in fact, the case, the breach would be to all plaintiffs.

This ERISA suit is just one of any federal suits filed by workers at universities/colleges. Allegations of mismanagement of employee retirement plans are more and more common. Other universities facing similar allegations include: Massachusetts Institute of Technology, Yale University, etc.

Allegations of violations include:

Failing to remove underperforming funds.

Paying unreasonably high prices to third parties to service the plan.

Allowing third parties to require the plan to offer their in-house funds.

In order to gain class certification, a group is required to show that it has many individuals united by a common theory that are victims of a crime (allegedly) and are represented by named plaintiffs who qualify. Judge Forrest stated that the workers in this case fulfill all requirements for certification. The class will number at least 19,000 at all times during the period represented and maxes out at 24,000 in 2014. This easily meets the qualification for “many.” All seek to resolve claims hinging on how the court answers a series of common questions and all have a shared experience as investors in the same plans (commonality).

NYU attempted to argue that the plaintiffs were poor representatives for the class, but Judge Forrest rejected the argument.

If you have questions about ERISA or if you feel your retirement funds are being mismanaged, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.