Chicago Cubs Dealing with Age Discrimination Lawsuit: Email Supports Bias Claims

A former Chicago Cubs’ scout filed an age bias lawsuit that took an interesting turn when a California federal judge pointed out the potential significance of an email that included both ratings of scouts’ performances AND what the judge described as “beauty contest” descriptions listing their age and physique.

When the Los Angeles hearing started, U.S. District Judge Stephen Wilson advised both parties’ attorneys that he would be focusing on how the baseball organizations’ pending motion for summary judgment would be affected by a number of internal scouting department emails. The judge ordered the Cubs to provide these emails to the court.

One email, sent in August 2015 by the Cubs scouting department’s second-in-command, assistant director of pro scouting Andrew Bassett was sent to Jared Porter, a recently hired (at the time of the email) Cubs’ director of pro scouting. The email contained information that is receiving a lot of attention from the court.

The Plaintiff’s attorney describes the contents of the email as a “ranking of scouts like Henderson [the plaintiff].” Bassett’s descriptions of the scouts in the email included references to their age, their families, their body types, and other information. The judge called into question what the physical descriptions included in the email had to do with a scout’s performance on the job – referring to the situation as the baseball organization holding beauty contests for their scouts. Henderson, 65 years old, and other older scouts were ranked poorly according to the internal email.

The Defendant’s attorney argued that all the scout’s ages were listed and that the email was presented in a casual tone, but also contained a fair evaluation of their scouts’ performances. He claimed the Cubs were entitled to summary judgment because the plaintiff was not fired. Instead, his annual contract was simply not renewed. The Defendants argue this does not constitute a wrongful act and is not liked to any sort of alleged discriminatory action.

The judge responded that he would need to review the emails in detail.

If you are experiencing discrimination in the workplace of if you are a victim of wrongful termination, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Patent Attorney Loses Discrimination and Wrongful Termination Suit

A patent attorney, Geneva Lai, claiming wrongful termination recently lost her lawsuit against Silicon Valley firm LegalForce RAPC. The wrongful termination suit was tossed by a California judge. The attorney claims she was fired for challenging an allegedly biased revenue requirement that was imposed on women working at the Firm. After hearing the arguments, Santa Clara Superior Court Judge James L. Stoelker ruled in favor of the Defendant, noting that the law firm stated they had fired the attorney, in part, for creating a fake client.

The judge issued a written tentative decision before the hearing, but after hearing oral arguments during the June 26th hearing, he stated the matter needed additional consideration. On Friday, the judge dismissed the plaintiff’s gender discrimination claims, retaliation claims and wrongful termination claims.

According to court documents, the firm hired Lai as a patent attorney in September of 2015. The Firm had three others working in their patent department at the time: Raj Abyhanker (law firm principal), Laura Figel, and Oscar Au. Abhyanker met with the team in April 2016 and advised Lai and Figel they would need to start finding their own clients. According to LegalForce, Lai failed to meet the new revenue requirement, so they ended her employment. There were also questions about a client that Lai said she had secured.

The judge noted that there was an investigation regarding whether or not Lai made up a client that ended up hitting the target goal set by the Firm. The judge noted that when an employee is attempting to “game the system” in that way, it’s hard to ignore.

In the initial, written tentative decision, the judge said he was inclined to toss the plaintiff’s cause of action for unlawful sex discrimination because the roles of Lai and Figel at the Firm were different than Au’s role at the Firm. He was not a licensed attorney. Therefore, it was not an act of discrimination to impose the new revenue requirement just on the two women. Lai could not establish that a male employee at the firm in a similar work position was treated more favorably.

The judge also found that Lai failed to support her cause of action for unlawful retaliation in the workplace and wrongful termination claims.

If you need to talk about retaliation in the workplace of if you are struggling with workplace discrimination, please get in touch with an experienced California employment law attorney at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Another Driver Wage and Hour Lawsuit Coming at GrubHub

GrubHub is generating headlines again as they face another proposed collective and class action alleging they misclassified delivery drivers as independent contractors in order to get around the legal requirements to pay minimum wage and overtime pay. A pair of workers have filed suit against the company in Illinois federal court. The company, which takes orders for food from customers through a mobile app or online and then has delivery drivers obtain and deliver the items, has dealt with similar accusations in the past.

The two plaintiffs who filed suit, Carmen Wallace and Broderick Bryant, made allegations that the GrubHub Inc. and GrubHub Holdings Inc. violated the Fair Labor Standards Act as well as both Illinois and California labor law when they classify drivers as independent contractors. The plaintiffs claim that the GrubHub delivery service exerts a substantial amount of control over the work performed by their drivers and relies on the completion of their job duties to run the overall business.

According to the complaint, the GrubHub delivery drivers are currently classified as independent contractors but should actually be classified as employees according to standards set down by law as the company directs the drivers’ work in detail, they instruct drivers on where to report for their work shifts, they tell drivers how to dress and where to go to pick up or wait for orders scheduled for delivery.

Virtually identical claims are being made in another Illinois federal court case called Souran v. GrubHub Holdings Inc.

Numerous drivers for the company tried to opt in to the Souran case after the deadline, but GrubHub would not agree to add them so they filed a new case for late-submitted opt-ins. The Souran group was granted conditional certification as a collective action in February 2017, but was stayed by the Seventh Circuit until the U.S. Supreme Court produced a ruling on another case, Epic Systems Corp. v. Lewis et al. The high court ruling came down in May ruling employment agreements barring workers from bringing class actions permissible. As GrubHub drivers sign this type of agreement when they start work with the company, the Seventh Circuit sent Souran back to district court for additional proceedings in accordance with the ruling of the high court.

Raef Lawson also has a similar suit pending against GrubHub before the Ninth Circuit. Lawson is urging the appeals court to revive his action. It was dismissed in February after the lower court found he was an independent contractor in spite of his claims that he should be classified as an employee.

The action filed by Wallace and Bryant raises most of the same claims. The plaintiffs note a number of different work conditions that are indicative of employee status: drivers work scheduled shifts, drivers must remain available to accept assignments during shifts, drivers are subject to termination if they don’t listen to the company’s dispatchers who are advising them where to go and when to be there, etc.

If you have concerns regarding misclassification in the workplace 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.

Coding School Agrees to $1M Settlement After Alleged Labor Law Violations

A coding school, General Assembly Space, Inc., recently agreed to pay over a thousand of their current and past instructors $1 million in order to settle allegations that the school misclassified them as independent contractors rather than employees. As a result of the misclassification, the instructors were not paid minimum wage and overtime wages according to their complaint filed in California federal court.

The motion for preliminary settlement approval the plaintiffs’ counsel stated that they planned to request 1/3 of the settlement amount – approximately $333,333 for attorneys’ fees and another $15,000 for expenses in addition to regular fees. Plaintiffs’ counsel felt this amount was fair as it would allow each class member to receive around $28.35 for every qualifying week they completed on the job.

If the settlement deal is approved it would provide resolution for the 10-count complaint that was filed by John Marin, lead plaintiff in the case. The suit was filed in July 2017 against General Assembly Space, Inc., a New York based online school.

The lead plaintiff in the case, Marin, began working for the school as a lead instructor, full-time in June 2016. He taught three consecutive 3-month immersive data science courses in Lost Angeles, California.

According to Marin, he consistently worked 70-80 hour work weeks and was not given the meal and rest breaks required by law. He also claims he was not paid overtime for his hours over the standard 40 hour work week or given accurate/itemized wage statements. After he completed the instruction of the third consecutive course, he was terminated abruptly. The company then replaced Marin with an employee who was classified as exempt from overtime. Marin was denied unemployment benefits by the company, but California’s Employment Development Department later reversed this denial.

The original complaint asserted claims under the FLSA (Fair Labor Standards Act) in addition to claims under California state labor law and the state’s Unfair Competition Law. He also made claims under the Private Attorneys General Act (allowing workers to sue in order to recover civil penalties on their own behalf and on behalf of other employees in their situation), and the state of California for labor code violations.

Marin later amended his complaint to add another former instructor, Keyan Bagheri, as a lead plaintiff. The district court cut the claims brought under FLSA and soon after, the two parties entered mediation. The parties notified the court that they had reached a settlement agreement in May.

If you have questions about overtime pay or if you are not receiving your meal or rest breaks in accordance with California state labor law and/or the Fair Labor Standards Act, please get in touch with the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Judge Certifies Class of Kaiser Traveling Nurses

U.S. Magistrate Judge Joseph Spero certified a class of Kaiser Foundation traveling nurses after the caregivers alleged they were shorted on overtime pay, denied required meal breaks and rest periods, etc. The judge granted class certification after the nurses raised valid issues about broad policies that were applicable to all class members.

The judge granted a bid to certify a class of R.N.’s and licensed practical nurses who were all employed by AMN Healthcare Inc. The health care staffing contractor staffed Kaiser Foundation hospitals with nurses in California. The suit included numerous allegations of wage and hour violations of California Labor Law.

The judge concluded that the plaintiffs met the requirements for both commonality and predominance prior to granting class certification. Judge Spero said the nurses’ theories that the defendants in the case discouraged overtime and didn’t adequately prevent underreporting raised a number of common issues that were susceptible to common proof.

In reaching this conclusion, Judge Spero rejected a number of arguments presented by Kaiser, the defendant in the case, who was arguing against class certification: evidence of minor variations in how the company policies were implemented in various facilities and that potentially removed the commonality of issues regarding the nurses’ overtime payment.

When there is evidence of a common business policy that is applicable to all members of a class with concerns to the payment of overtime, and all the class members can be said to share the same core duties that tend to routinely lead to unscheduled overtime, the judge argued that some class members who did not find themselves working unscheduled overtime or who were provided adequate compensation for the overtime hours was not sufficient to defeat predominance. Based on this logic, the court found that the common issues predominate over individualized inquiries in consideration of the overtime claims being presented by the plaintiffs.

The Kaiser nurses’ suit was removed to federal court in early 2016. The original lawsuit alleged that the Defendant suppressed overtime by advising their traveling nurses that it wasn’t permitted and that they further discouraged overtime by keeping an over-difficult overtime approval process in place. The plaintiffs also alleged that they were not provided with the required meal breaks and rest periods. This was accomplished through a number of different policies the company implemented.

In addition to AMN Healthcare, Kaiser Foundation Hospitals, Southern California Permanente Medical Group Inc. and the Permanente Medical Group Inc. were also named as defendants. All are Kaiser entities.

If you have questions regarding proper meal breaks and rest periods or if you need to find out what the legal requirements are for overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Proposed Class Action Against Sally’s Beauty Supply

An ex-Sally Beauty Supply LLC employee, Rosie Nance, filed a proposed class action against the company in Florida federal court. Nance claims she was not provided with fair overtime pay despite regularly working more than 40 hours per week, including bank deposits conducted on her lunch breaks.

Nance filed the Fair Labor Standards Act (FLSA) lawsuit in July including allegations that from April 2015 through February 2018, she was not compensated by Sally Beauty Supply at the state-mandated time and a half for extra hours she worked over 40 per week. She filed suit on behalf of herself and other nonexempt employees at the company in similar positions.

Nance was employed by Sally Beauty Supply from February 2006 through February 2018. According to the filed complaint, she was employed to provide customer service at retail outlets.

Nance claims in the complaint that while she was required to perform off the clock work by making bank deposits on behalf of the company during her lunch breaks, she was not provided payment as required by labor law. In the suit she specifically stated that the work was “directly essential” to the company and its successful business practices.

Additional claims were lodged by Nance in the complaint, including: the company failed to maintain proper time records, and the company failed to apprise her of her rights under FLSA.

Nance filed suit to seek back overtime pay at the standard rate as required by law, and additional damages and attorneys’ fees as necessary. Sally Beauty Supply is not the only national retailer facing claims of off the clock work due to lunch break bank deposits. T-Mobile, Dollar Tree, and Children’s Place Retail Stores Inc. are all facing similar claims.

If you have questions regarding what constitutes off-the-clock work or if you feel you aren’t being paid overtime as required by law, please get in touch with one of the California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Changes to a $2M Settlement Between Costco and Class of Drivers

A California federal judge, U.S. District Judge Cathy Ann Bencivengo, granted preliminary approval after changes to the $2 million settlement between Costco and the proposed class of truck drivers while holding on to lingering concerns about the class counsel’s representation. The class of truck drivers originally alleged they were denied proper meal breaks and overtime pay.

The updated settlement agreement made adjustments to accommodate most of the issues that led to it being denied preliminary approval to the deal twice, but the judge still questioned whether or not the proposed class counsel was acting in the best interest of the drivers and whether or not the $2 million settlement amount/deal was a fair one.

One reason the judge first denied approval to the deal was that members of the class were required to release their FLSA claims. Proposed class counsel William Turley responded that is was okay that the drivers’ FLSA claims were dropped because they were basically worthless. In the updated settlement deal the drivers are split into a Rule 23 class and an FLSA collective that any drivers who wish to can opt in to. The Rule 23 settlement is estimated at $1,320,750. The FLSA settlement is estimated at $146,750. The settlement amounts clearly show that Turley’s argument that the FLSA claims were basically worthless was wrong. This situation led the judge to question Mr. Turley’s motivation for the false statement and the potential that he may have sought to keep the funds himself through an excessive attorney fee request. The judge also questioned Turley’s credibility in identifying the settlement amount as “fair.”

After the judge granted preliminary approval, she made it clear that doing so would not keep her from revisiting the questions she still had about the case during the hearing seeking final approval.

Unpaid overtime is one of the most common concerns in the American workforce. If you have concerns about unpaid overtime or if you are misclassified as exempt, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.