Recent Suit Claims Fresenius Left On-Call Time Out of OT Calculations

When Fresenius Medical Care Holdings Inc. calculated employee pay rates at their Ohio hospitals, they allegedly failed to include a stipend for on-call hours. In doing so, they effectively robbed their employees of overtime they were legally obligated to pay. As a result, Fresenius is now facing a proposed class action that was filed in Boston federal court (Freeman v. Fresenius Medical Care Holdings Inc. et al., case number 1:19-cv-10439).  

Fresenius Medical Care Holdings, a German company with North American headquarters in Massachusetts, is the world’s largest provider of dialysis products and services. David M. Freeman, plaintiff in the suit, was employed as a nurse by the company in 2009. During his time with the hospital, he worked at a number of their various facilities throughout Northern Ohio. As payment for his work, Freeman claims he received flat-rate stipends for time he spent on call on top of his hourly rate of pay. According to the lawsuit, Fresenius company policy does not recognize on-call time as hours worked and Freeman claims that this policy defies the Fair Labor Standards Act (FLSA) by excluding the on-call pay from the regular rate for the purposes of overtime calculations.

Freeman believes that the company knew that on-call pay and other, similar forms of payment for employment must be included according to employment law when computing an employee’s regular rate of pay for overtime calculations. Due to the obvious disregard of the illegality of their policy, Freeman alleges that Fresenius acted in reckless disregard for the illegality of their actions when excluding on call pay. The plaintiff argues that the practice of excluding on call pay in this manner runs counter to both longstanding U.S. Department of Labor regulations and case law.

For example, an agency regulation that was issued in the early 1980s states that on-call payment is “clearly paid as compensation for performing a duty involved in the employee’s job.” The regulation goes on to say that as on-call payment is payment for a job duty, it must be included as part of the employee’s regular rate of pay.

The lawsuit brings claims for OT violations under both federal and state law and seeks declatory and injunctive relief. It also establishes a putative class of individuals employed by Fresenius Medical Care North America during the last two years. In addition to naming Fresenius as a Defendant in the suit, Freeman named its subsidiary, Renal Care Group Inc. due to the claim that they issued checks on behalf of Fresenius.

If you have concerns about how your employer calculates your overtime pay or if you are not receiving overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP today.

Ninth Circuit Court of Appeals Mistakenly Releases Opinion Listing Deceased Judge

The U.S. Supreme Court held recently that the Ninth U.S. Circuit Court of Appeals was in error when they released an opinion that listed a deceased judge as the author while also counting his vote. The deceased judge, Judge Stephen Reinhardt had died 11 years earlier.

In an unsigned opinion the nation’s high court vacated the Ninth Circuit’s April 9, 2018 decision in the case that interpreted the federal Equal Pay Act. In the opinion, it was found that…the opinion of the court, without Judge Reinhardt’s vote (the deceased judge that was mistakenly listed as author) that was attributed to him in err, would have been approved by only 5 of the 10 members of the en banc panel who were alive when the decision was filed. The other five judges did concur in the judgment, but they concurred for varying reasons. The issue to be made clear is that Judge Reinhardt’s vote that was mistakenly included made a difference in the outcome.

The question posed to the Supreme Court was whether or not it was lawful. Since Judge Reinhardt was no longer a judge when the en banc decision was filed for the case, the Ninth Circuit decided that the Ninth Circuit did, indeed, err when counting him a member of the majority. In doing so, they effectively allowed the deceased Judge Stephen Reinhardt to exercise the judicial power of the United States post mortem. Since federal judges are appointed for life – not eternity – the Ninth U.S. Circuit Court of Appeals clearly erred.

Prior to his death, Judge Reinhardt did actively participate in the case and author the opinion. The majority opinion and concurrences were final and voting was completed prior to Judge Reinhardt’s death on March 29, 2018. The opinion listing the deceased judge in error was publicly released on April 9th. The Supreme Court found that the justification for counting Reinhardt’s vote was not consistent with well-established judicial practice, federal law, and judicial precedent.

The heavily debated opinion came in a discrimination case that was filed in the District Court for the Eastern District of California by a math consultant for the Fresno County Office of Education named Aileen Rizo. Rizo alleged she was paid less than her male counterparts.

If you need help protecting your legal rights in the workplace or have questions about how to file a California discrimination lawsuit, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Discrimination Lawsuit Against Hospital Results in $1M Award

A former employee of St. John’s Pleasant Valley Hospital in Camarillo, California, Virginia Hoover, filed a California discrimination lawsuit against the hospital. A California jury awarded the woman $1 million.

Virginia Hoover, the former employee of St. John’s Pleasant Valley Hospital, worked as a radiologic technologist at the facility. She alleges that during her time working at the California hospital she was discriminated against.

According to Hoover, the discrimination occurred after she was injured while moving some medical equipment on the job. Due to the work-related injury, Hoover had lifting restrictions. According to Virginia Hoover, the hospital did not respond appropriately to her lifting restrictions with adjusted duties to accommodate her injury and her necessary treatment. Instead, they responded to her need for accommodations by terminating her employment in 2014.

Providing Reasonable Accommodations in the Workplace for Disability or Injury is Required by Law: The California Fair Employment and Housing Act requires California employers with five or more employees to offer reasonable accommodation for individuals with a physical or mental disability to apply for jobs and perform the essential functions of their jobs unless doing so would cause the employer or their business undue hardship.

The facility’s legal representation argued that the hospital gave Virginia Hoover a leave of absence and also made efforts to assist her in returning to the job. But the hospital’s attorneys stated that the company did decide at that point that Ms. Hoover was not able to perform her job duties as necessary.

The jury’s award to Virginia Hoover totals $1 million and includes payments for lost earnings due to the termination from her position with the hospital and the associated emotional distress. The Defendant in the case, St. John’s Pleasant Valley Hospital of Camarillo, California has been on record stating that they plan to appeal the court’s decision.

If you have questions about discrimination in the workplace or if you need to file a California discrimination lawsuit to protect your rights on the job, please get in touch with the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Former Dean of Brandman University Sues School for Wrongful Termination

Dr. Christine Zeppos, the former dean of Brandman University, was fired in August 2018. Zeppos claims she was fired as a result of her recent claims of witnessing instances of sexual harassment in the workplace. Zeppos filed a wrongful termination lawsuit January 14th including allegations that administration at the school supported a toxic workplace that Zeppos described in court documents as a “misogynistic fiefdom” and a culture of gender-based harassment and discrimination.

The suit filed by Zeppos against Brandman University included allegations of: wrongful termination, sexual harassment, gender discrimination, failure to prevent wrongful termination, retaliation, and intentional infliction of emotional distress. Zeppos claims in the case documents that the school also retaliated against other female employees who had similar complaints.

Brandman University, part of the Chapman University system, is located in Irvine, California. The school denied all allegations made by Zeppos in the lawsuit stating that the administration’s decision to terminate Zeppos as dean of the School of Education was a result of an investigation of complaints that were made against Zeppos by two other female employees that went unnamed. The school claimed that Zeppos refused to accept the findings of the investigators or the corrective action that was in place to allow her to continue as Dean of Education. As a result, the school sought a replacement.

Zeppos’ lawsuit was filed in Orange County Superior Court in 2016. It included allegations that Zeppos complained to Human Resources at Brandman University after she witnessed demeaning behavior toward female employees at the school by the school’s Provost, Charles Bullock. The university ordered an investigation into the Provost’s management style and concluded that there was no evidence of harassment, discrimination or retaliation.

The lawsuit also named the school’s chancellor, Gary Brahm. Zeppos claims that when she was terminated, she was offered a severance package in exchange for what the school called a “release of claims.” Zeppos claims this condition was easily interpreted to mean she would receive a severance package in exchange for her silence on the allegations. According to the lawsuit, she refused.

Students at Brandman University started circulating a Change.org petition in September 2018 calling for Zeppos to be reinstated and pushing the hashtags #MeToo and #StandWithDrZeppos. Close to 700 people signed the petition as of February 3rd.

If you have experienced sexual harassment in the workplace or if you have been wrongfully terminated, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Former Personal Chef to Receive Settlement from Sean “Diddy” Combs in Harassment and Wrongful Termination Case

Sean “Diddy” Combs’ former personal chef filed a sexual harassment claim against him in 2017. She also claimed that the music superstar didn’t pay her overtime for working hours in excess of what is legally recognized as full time.

Rueda, Combs’ former personal chef, was employed in April 2015 and worked for the music mogul through May 2016. During her time employed by Combs, Rueda claims she would regularly work from 9am to 1:30am and that she would also frequently accompany him on the road for weeks at a time without receiving anything in addition to her regular $91,000 annual salary. Rueda claims that when she took the position as personal chef, she advised Combs that she couldn’t travel due to the fact that she had small children who needed her to be nearby. 

Rueda claims that Combs was frequently hostile to her – creating an uncomfortable work environment. She described one instance in which he yelled at her for showing up to work late and disturbing him and Gina Huynh, a woman he was romantically linked to. She claims he swore at her and demanded, “Can’t you see I have company?” Rueda then claims she was instructed to bring them breakfast in his private quarters. She did so and when she arrived, she saw them having sex. She made additional claims that Combs’ manager made sexual comments to her.

It was reported that when Los Angeles Superior Court Judge Elizabeth Allen first considered Rueda’s case, she didn’t accept it because of a work contract Rueda signed stating that all employment disputes be handled by arbitration. Rueda’s lawyers argued that the contract was both misleading and heavily favored Combs in the verbiage.

Despite Judge Allen’s initial reaction to the case, Rueda’s lawyers revealed the case was settled on February 19th. They did not provide details. When news of the suit surfaced in 2017, a Combs representative described Rueda as a disgruntled employee, but claimed she was fired for just cause. The reason she was terminated was never released. Rueda also sued Combs for wrongful termination.

If you have been wrongfully terminated from your job or if you are experiencing a hostile work environment, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Strengthened Protections for California Workers have Bay Area Restaurant Workers Collecting Lost Wages

In response to a recent class action lawsuit alleging wage violations, a popular Bay Area restaurant, Gordo Taqueria, agreed to pay workers $690,000. The case is the latest in a string of similar labor cases that involve well known Bay Area restaurants. The new legal trend is due at least in part to the results of a years-long effort by the California Labor Commissioner’s Office to strengthen protections for workers and improve their ability to collect lost wages.

In January 2019, another Bay Area restaurant, Rangoon Ruby, agreed to pay a settlement to over 300 workers that totaled $4 million in wages plus penalties. In 2018, La Taqueria settled with workers in a similar case for $500,000. Additional recent cases based on similar allegations include cases against: Burma Superstar, Mango Garden, Kome Buffet, and Mission Beach Café.

Jose Martinez, former Gordo dishwasher, worked at the Gordo Taqueria on College Avenue in Berkeley from 2013 to 2015. He brought complaints to the attention of Legal Aid at Work in San Francisco and with their help, he filed a class action lawsuit in December 2016 against the restaurant chain. In the class action lawsuit representing 240 workers, Martinez alleged that workers for the Bay Area restaurant received tips only as a lump sum annually instead of daily or at the end of each pay period as required by California state employment law. He also claimed that workers were not receiving all the overtime pay they were due for hours worked beyond 8 in one day and/or 40 in one work week.

Gordo owners responded to the allegations through their attorney by saying that the restaurant has served the Bay Area since the 1970s, always provided great food and a been a great place of employment. They also stated that they quickly responded to the lawsuit in December of 2016 by engaging in negotiations with the plaintiff’s counsel and instituting early alternative dispute resolution measures to negotiate a deal that the restaurant believes is fair to all parties. They also denied all allegations listed in the complaint.

An Alameda Superior Court Judge approved the settlement agreement in December on a preliminary basis. The settlement agreement would resolve the class action suit. The claims included in the suit filed by Martinez are similar to others filed against many other area restaurants in recent cases: inadequate rest breaks, unpaid overtime, improper distribution of tips, minimum wage violations, and instances of retaliation against workers who speak up for their rights.

If you have concerns that you are not being provided fair overtime pay or if you are not being compensated as required by California state labor law, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

California Court Grants Wells Fargo Loan Officers Class Action in Pay Dispute

California-based Wells Fargo loan officers recently filed suit alleging that they were improperly compensated (Kang v. Wells Fargo Bank). The lawsuit could now have even greater implications as the plaintiffs have been granted class certification by the California court.

The issue in the case is to determine whether state was violated when Wells Fargo allegedly conducted “clawbacks” of hourly wages, vacation and separation pay from earned sales commissions. Allegedly, Wells Fargo made a practice of compensating its mortgage sales force using advances on their commissions at a basic rate of around $12/hour, then “clawback” the hourly pay from commissions and vacation pay as they were earned.

James C. Kang, plaintiff in the case, claimed that the clawbacks were in violation of a number of state labor laws that related to employee compensation, including: overtime pay, minimum wage requirements, and vacation pay requirements because they left members of the sales force affected by the practice unpaid for tasks they were required to fulfill by the company that were unrelated to direct sales. Kang also alleged in court documents that members of the sales force who were promised vacation pay did not actually receive it due to the clawbacks.

The bank claims that the pay structure used to compensate home mortgage consultants is compliant with California wage and hour laws, including paying for all hours worked and that the compensation structure allows mortgage workers to earn a competitive, performance-based wage.

Since Well Fargo implemented a mandatory arbitration provision for its sales force on December 11, 2015, the judge ordered those hired or rehired after that date to be excluded from class certification. All other nonexempt employees of Wells Fargo as of October 27, 2013 working as home mortgage consultants or private mortgage bankers, junior HMCs or junior PMBs are part of the class. A subclass is included in the class certification for individuals who were terminated from their employment.

If you have questions about overtime or minimum wage requirements in California, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.