Bosh’s Former Driver Sues for Overtime Pay Violations

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Chris Bosh’s former driver is suing him for violating overtime law. Michael Ray, the former driver, alleges that the NBA star failed to pay him overtime that he was due after moving to Austin, Texas in the summer of 2018.

In a federal lawsuit that Michael Ray filed in Austin, Texas, he claimed he started work as Bosh’s driver when the NBA player and his family were residents of the state of California. According to the lawsuit filed by Ray there were five people employed in the Bosh family home. Two were household managers. Two were employed to maintain the yard and the exterior of the home. And the fifth was Michael Ray himself, employed as Bosh’s driver.

 While the family was living in California, Ray claims that Bosh paid him by the hour and did not usually require any overtime hours. But on the rare occasion that Ray did put in overtime hours at Bosh’s request, he was paid overtime wages for the hours worked. This changed in July 2018 when Chris Bosh moved with his family to Austin, Texas. In the process of the move, Bosh cut back on his staff and placed his driver, Michael Ray, on a fixed salary.

At this point, Ray claims his duties were expanded to include more household duties, including unpacking boxes from the family’s move from California to Texas, putting together new furniture ordered for the new household, taking out the garbage, and supervising contractors and pest control workers while they were working on the Bosh property. According to the suit, Ray was also required to run errands for the family. For instance, he was required to go the pharmacy, the grocery store, pick up food ordered from restaurants, etc. The additional duties increased Ray’s working hours to over 70 hours per week.

Ray claims, despite the drastic increase in hours and obvious overtime, Bosh refused to provide him with any overtime pay. According to Ray, Bosh declined to provide him with overtime pay because Ray was on a salary and Bosh insisted that as that was the case, Bosh could require he work as many hours as necessary. Ray claims that within days of raising the issue of overtime pay, Bosh terminated his employment. Ray, who is now back in California, is seeking unpaid wages, reinstatement of his job and other damages.

If you have been denied overtime pay or if you need to discuss what constitutes an overtime pay violation, please get in touch with one of the experienced employment law attorneys at California’s Blumenthal Nordrehaug Bhowmik De Blouw LLP.

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

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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.

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

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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 Rules On-Call Tilly’s Workers Should Receive Pay

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Some employers require workers to call in in order to find out if they have to work their shifts. Some employees are required to call in just hours before they may need to start work. This practice triggered California’s requirement that workers be given “reporting time pay.” A split California appeals panel recently brought this up when reviving a proposed wage class action against Tilly’s Inc. In doing so, they potentially opened up many other California retailers to similar (potentially expensive) suits.

The Second Appellate District said Tilly’s on-call policy triggers California State’s Wage Order 7, in which it states that employers must provide workers with pay when they report to work but are not put to work or provided with at least half of their usual/scheduled day’s work. Since workers are “reporting” when they call in, Wage Order 7 means employers must pay them between 2-4 hours worth of wages depending on the length of the scheduled shifts being referenced.

Tilly’s practice of having their workers call in to see if they need to work their shifts just hours before they would need to start work, is exactly the type of policy that reporting time pay was intended to stop. The appellate court decision overturned a lower court ruling that tossed the suit when they concluded that the on-call scheduling alleged in the case against Tilly’s triggers Wage Order 7’s reporting time pay requirements. They noted that on-call shifts are a burden to employees who cannot take other employment, attend school or make plans socially because they may need to work, but simultaneously may not receive payment for the time they have set aside unless they are ultimately called in to work.

Tilly’s argues that workers “report” for work under Wage Order 7 only if they physically show up for the start of a scheduled shift. The appellate court concluded that the requirement should be read to include those required to check in before physically arriving on the job before granting worker Skylar Ward’s appeal.

The appellate court noted that while policies like Tilly’s call-in requirement probably didn’t exist when Wage Order 7 was adopted by the state, the reporting time requirement covers situations other than those specifically considered by the drafters.

If you have questions about what is covered by Wage Order 7 or if you are required to call in to report before a shift, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP so we can help you protect your rights in the workplace.

Ex-Dairy Worker Fights Back After Company Responds to Wage Suit by Trying to Have Him Deported

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Jose Arias, former Northern California dairy worker, recently won a million-dollar settlement against his ex-employer’s attorney. Arias originally filed a lawsuit against the dairy alleging wage theft. According to the plaintiff, Arias, the company’s attorney responded by contacting immigration officials to try to get the ex-dairy worker deported.

The retaliation suit against his former employer, Angelo Dairy of Acampo was already settled when the $1 million settlement was announced in the suit against attorney Anthony Raimondo. The settlement followed a federal court’s decision to reinstate Arias’ case. Representation for the plaintiff see the case as an example showing employers that they can’t game the system by cheating their employees of wages and then responding to complaints with threats to deport them.

The attorney who allegedly made the deportation threat, Raimondo, has 20 years of legal experience representing dairies out of Fresno. He denied retaliating against Arias and claimed that his former insurance company insisted the case be settled. Raimondo insists that he is the only person involved in the case who did not break the law.

Arias, an undocumented immigrant, started work with Angelo Dairy in 1995 as a milker. The dairy was supposed to file documents with federal officials that would verify Arias’ work authorization. Instead the employer used his undocumented status as a weapon to limit Arias’ options and keep him in their employ. In 1997, Arias told a company owner that he had a job offer from another dairy. The owner advised him that he would report the other dairy to immigration authorities if Arias took the offer. Arias stayed in his current position, but sued Angelo Dairy in 2006. He claimed the company’s failure to pay overtime and provide required meal and rest breaks were violations of labor law. In 2011, just prior to going to trial, Arias claims Raimondo, the dairy’s lawyer, contacted immigration agencies to purposefully derail the case.

Arias settled the wage suit and dropped his claims against the dairy farm. He says he did so, in substantial part, to avoid deportation. The court documents state that Raimondo contacted ICE a minimum of five times regarding other employees. He also allegedly confirmed his practice of contacting ICE in a June 2013 email to Legal Services Corp., in which he stated that he had acted in the past to deport workers who were suing his clients. Recent statements from Raimondo describe the events differently, insisting that the idea that he retaliated against Arias is ridiculous.

If you are experiencing retaliation in the workplace or if you need to discuss filing suit against an employer due to employment law violations, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Employee Back Pay Lawsuit Settled by Los Robles Regional Medical Center

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Thousand Oaks, California’s Los Robles Regional Medical Center agreed to pay $2.95 million to settle a lawsuit alleging that they shortchanged their employees’ hourly pay. The settlement agreement addresses litigation due to a 2014 filing by plaintiff, Jeanette Munden, a former nurse at the medical center. Munden alleged her hourly pay was routinely rounded in a way that short-changed her paycheck.

Judge Kevin DeNoce of Ventura County Superior Court approved the settlement against Los Robles, ruling that the center would pay $2.95 million over a lawsuit alleging that it shortchanged hourly pay of employees and prevented them from taking lunch breaks (as well as other labor code violations). The settlement includes 3,000 current and former employees who split close to $1.9 million. The average payout for workers included in the suit will total around $618. The hospital will also be covering attorney fees ($973,500) and state labor code penalties for alleged violations ($10,000).

The company settled on a no-fault basis and does not admit any wrongdoing, although this is not the first time they have faced this type of employment law violation allegation.

Timeline of the Case:

2005: A federal judge approved a $4.75 million settlement for a lawsuit against Low Robles Medical Center claiming over 1,000 employees were owed wages for missed breaks and overtime.

2014: Jeanette Munden, former Los Robles nurse, alleged her hourly pay was regularly rounded to short her paycheck. She claimed Los Robles owed her overtime and that she was also consistently denied lunch breaks and rest periods during her employment at the facility.

2015: Munden resigned from her position at Los Robles to take another job but was not paid compensation she was owed by the company.

2017: Nurses negotiating contracts with the facility in September 2017 claimed that staffing was so limited that they could not take breaks or even, sometimes, go to the bathroom.

As the lead plaintiff in the case, Munden will receive a $15,000 award. Only one of the current and former employees included in the suit objected to the settlement.

If you have questions about how to file an overtime lawsuit or if you need to discuss when employers are required to provide overtime pay, please get in touch with one of the experienced California employment law attorneys at Blumenthal Nordrehaug Bhowmik De Blouw LLP.

Tender Heart Home Care Agency Overtime Wage Suit Sees Decision Reversal

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Many have heard the story of the California caregiver who alleged she was not paid overtime. Followers of the story will be interested to know that the case has been remanded back to a lower court by a state appellate court. Judge Mark Simons, on the bench of California’s 1st District Court of Appeals, issued the ruling on January 11th, 2019. His reversal of the Contra Costa County Superior Court’s decision in the Duffey v. Tender Heart Home Care Agency LLC has the story back in the news.

In the ruling, the judge stated that the trial court was in error when they exclusively applied the so-called “common law” test and that there is a dispute of fact as to whether or not Duffey was an employee of Tender Heart Home Care Agency LLC.  

Duffey filed suit against Tender Heart alleging that the health care company was in violation of the Domestic Worker Bill of Rights or DWBR. This California state law requires domestic workers to receive overtime pay if they work more than nine hours in a day or more than 45 hours in a week.

Case documents indicate that the plaintiff signed a form contract with the company, Tender Heart, in 2011 that was titled “Professional Caregiver Agreement.” The agreement stated that Tender Heart is a “caregiver placement agency whose business is to obtain contracts for caregivers in dwellings and to refer by subcontract such contracts to professional independent caregivers.” It also stated that Duffey was an “independent domestic worker…in the business of providing care giving services in dwellings and hereby solicits such contract for services from [the company].”

Once DWBR was put in place in 2014, Duffey did not receive pay for her overtime hours. She filed suit against Tender Heart in December 2015. The lower court, Contra Costa County Superior Court, decided in favor of the health care agency, considering that Duffey was an independent contractor and not an employee of Tender Heart.

If you need help obtaining overtime compensation or if you need to talk to an experienced California employment law attorney about whether or not you are eligible for overtime wages in the workplace, please get in touch with Blumenthal Nordrehaug Bhowmik De Blouw LLP as soon as possible.