Truck Drivers Challenge California’s New Gig-Economy Law, Assembly Bill 5

In November 2019, the California Trucking Association filed a federal lawsuit to challenge the new California state law attempting to force gig-economy companies to treat their drivers and workers as employees. In doing so, the workers would be entitled to benefits and protections under labor law like overtime pay and sick leave.

California’s new law was based on the 2018 California Supreme Court ruling setting higher standards for when a company can classify a worker as an independent contractor. Assembly Bill 5 is scheduled to go into effect in 2020. (Governor Gavin Newsom signed it in September 2019).

The California Trucking Association argues that the law will deny a lot of truckers the opportunity to work as independent drivers in the state of California. By driving as independent contractors, truckers are able to profit from their own vehicles and set their own schedules. The new bill threatens cover 70,000 truckers’ livelihoods and according to the California Trucking Association, also violates federal law.

Truckers working as independent contractors are frequently experienced drivers who have already worked as employees and actively chose to strike out on their own instead. The California Trucking Association feels they should not be deprived of this lifestyle and career choice. A spokesman for the association explained their stance by indicating that the law can protect workers from misclassification without taking away the rights of independent truckers to actively seek a living on the road in California outside of the traditional employment model.

Supporters of Assembly Bill 5 insist that the law only strengthens the rights of workers and makes sure that employers do not deny their workers benefits they have earned (like minimum wage, paid family leave, and overtime). Some professional classifications receive broad exemptions from the new rules under the law (i.e. lawyers, real estate agents, etc.) But truckers were not offered similar treatment, although the lawmakers did offer delayed implementation to some offering construction related services.

The complaint was filed in the U.S. Southern District Court. The complaint challenges both Assembly Bill 5 and the underlying California Supreme Court ruling commonly referred to as Dynamex.

If you need to discuss Assembly Bill 5 or if you are misclassified as an independent contractor, please don’t hesitate. Get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

$2.75 Million Goes to Temp Nurses in Overtime Case Settlement

In recent news, a group of temporary healthcare providers alleged overtime violations. After filing suit (Dalchau et al v. Fastaff, LLC, N.D. Cal., No. 3:17-cv-01584), and gaining class certification, the overtime class action lawsuit was settled. The class members will split about $1.6 million.

The nursing staff company that allegedly violated overtime regulations, will pay $2.75 million to settle the case. The collective action settlement won final approval from a California federal court. The class members include more than 2,750 nurses and technicians across the nation. The members allege that Fastaff LLC did not include housing stipends in their overtime calculations, which is in violation of the Fair Labor Standards Act and California labor law.

Defining Overtime Pay: Overtime pay is compensation paid to an employee who works more than “full time” hours as defined by federal labor law. The rate of overtime pay is calculated by multiplying the regular hourly rate of pay by 1.5. The amount of overtime pay provided to an employee is the overtime pay rate (as previously calculated) multiplied by the number of hours worked over 40 in one week or over 8 in one day.

$1.7 million of the settlement will be split amongst class and collective members, after necessary deductions. Each of the members will receive a payout of approximately $624.  

Lead plaintiffs in the case, Stephanie Dalchau and Michael Goodwin, will receive $10,000 service awards. Counsel will receive $916,000 in attorneys’ fees and $27,700 for reimbursed litigation costs. The hybrid settlement is seen as fair, reasonable, and adequate by Judge William H. Orrick of the U.S. District Court for the Northern District of California. The settlement was granted preliminary approval May 12th, 2019. Orrick determined that appropriate notice was issued to putative class members and no objections were made to the terms of the settlement.

If you are not being paid overtime or if you need to file an overtime lawsuit, we can help. Get in contact with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Delta Overtime Lawsuit Settled for $3.5 Million

In recent news, Delta Airlines agreed to pay $3.5 million to settle a class action lawsuit including approximately 3,300 former and current Delta employees (Fan v. Delta Air Lines, Inc.). The settlement agreement settles a number of claims made against the airlines including overtime pay violations.

 According to the class action lawsuit, Delta Airlines failed to provide employees with overtime payment as required by California labor law. The employees’ claims were focused around a complicated pay formula that included profit-sharing payments, shift differential pay, non-discretionary bonuses, and the fair market value of employee travel passes.

The Delta overtime lawsuit is a good example of two types of California overtime cases/disputes that have been common recently: 1) claims focused on how hours are counted, and 2) claims focused on how the “regular rate of pay” is determined. The suit also serves as a reminder to employees to check their overtime calculations. Workers should periodically check both elements to ensure they are receiving all the overtime pay they are due. 

Howard Fan, plaintiff, worked customer service for Delta Airlines at the Los Angeles International Airport from September 2010 to August 2018. During his employment with Delta customer service, he regularly paid shift differentials to employees for each hour worked during afternoon and evening shifts. Delta Airlines also provided additional compensation through the company’s incentive program called Shared Rewards. The Shared Rewards program allowed workers to earn cash bonuses if company-wide operations met or exceeded agreed upon goals and metrics in various areas: baggage handling, percentage of scheduled flights that were successfully completed each month, and on-time arrivals. Cash bonuses through Shared Rewards were distributed to employees monthly and were included on wage statements in the pay period during which they were paid. Class members also received compensation from Delta through the profit-sharing plan, and additional compensation in the form of travel pass privileges (Travel Companion Passes for free or reduced-fare travel).

However, shift differentials, incentive program payments, profit-sharing contributions, and the taxable value of any travel passes, were not included when calculating the employees’ regular rate of pay that was used as the basis for overtime pay calculations. According to California law mirroring the federal Fair Labor Standards Act (FLSA), the “regular rate of pay” includes “all remuneration for employment paid to, or on behalf of, and employee.” Employees in the case argued that Delta was violating labor law by failing to include all compensation provided to employees into their regular rate of pay.

If you need to discuss violations of overtime pay requirements or if you need to file an overtime lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

California Safeway Cashier Suit Ends with $12 Million Deal

Did you know that Safeway has recently agreed to pay $12 million to resolve a lawsuit filed by one of their cashiers? The lawsuit alleged Safeway failed to provide seats to cashiers at their California grocery stores, which is in violation of California state law(Sharp v. Safeway Inc., No. 2011-1-CV-202901 (Superior Ct. of Calif., County of Santa Clara, Oct. 21, 2019)).

According to California labor laws, employers must generally provide employees with “suitable seating” if the nature of their job duties permit sitting. Safety argued that they truly believed, in good faith, that the nature of a cashier’s job did not reasonably permit sitting. While the court decertified the class in the case, the settlement still has a wide impact. It is estimated that Safeway may need to provide seats for up to 30,000 cashiers at different California stores over the next two years in order to comply with the terms of the settlement agreement. This requirement is in addition to the agreed upon monetary sum.

This case is an example of when a non-compliant policy that affects a large pool of employees can turn a seemingly small issue into a massive issue. And this type of massive issue can turn into a big, expensive problem for the employers involved. This is a frequent scenario with wage and hour mistakes by employers.

Other Examples of “Small” Compliancy Mistakes that Can Turn Into Expensive Problems for Employers:

1. Auto-deduct Policies – they become an issue when employees work through planned breaks.

2. Pre- and Post-Shift Work – Failing to pay employees for off the clock work necessary to their job duties can result in expensive wage and hour claims.

3. Miscalculated Overtime – miscalculated overtime adds up quickly.

If you need to discuss discrimination in the workplace or if you need to file a discrimination lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Are Uber Drivers Owed Millions of Dollars Due to Wage Theft?

Did you know that rideshare drivers in New York City have filed a lawsuit against Uber? The lawsuit claims that Uber wrongfully deducted taxes from divers’ paychecks and did not provide them with the full income they earned from their rides through the popular ridesharing app. The suit was filed in a U.S. district court in Manhattan.  

According to the lawsuit, 96,000 drivers are owed money because of two employment law violations: 1) Uber allegedly deducted money from drivers’ paychecks for both the state’s sales taxes and 2) a surcharge intended to apply to rides across state lines. Uber drivers also claim that the contract they have in place with the popular ridesharing company requires that Uber pay the driver the passenger’s full fare minus Uber’s service fee. According to the drivers, Uber also used a manipulative system of charging passengers that had the passenger paying a higher fare than what was reported to the driver, and Uber pocketed the difference between the indicated fare and the actual (higher) fare. This practice denied the drivers their contractual share of the full fare being charged to customers.

According to the allegations, it is estimated that the drivers are owed around $5 million.  

There are three Uber drivers named in the suit:

• Levon Aleksanian

• Sonam Lama

• Harjit Khatra

The plaintiffs listed in the lawsuit asked a federal judge to approve the class action for close to 100,000 drivers affected by the alleged violations. This lawsuit is part of a wave of employment lawsuits aimed at rideshare companies and other gig economy companies that are attempting to bolster wages of workers. Uber and Lyft were initially applauded for disrupting a stale industry, but in recent news they’re receiving more attention for the potential their business models present for worker exploitation.

Other companies facing similar allegations include: Instacart, DoorDash, etc. All of which have business models that rely on their workers using their app. These app-based gig economy businesses are drawing significant criticism in recent years for pocketing funds that should go to their drivers (i.e. deducting customer tips from payments submitted, etc.)  

In California, Governor Gavin Newsom recently signed a state bill into law after months of organizing by rideshare drivers and supporters. The new legislation attempts to force companies like Uber and Lyft to classify their workers as employees and provide them with access to a wider range of rights and protections. According to trusted media sources, various gig economy companies including Uber, Lyft, DoorDash, Postmates, and Maplebear spent a combined $110 million fighting the law.

If you need to file a wage theft lawsuit or if you need to discuss other employment law violations, don’t hesitate to get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Wonderful Citrus to Pay $5 Million for Defaming Former Worker

James Jordan, a former employee of Wonderful Citrus Packaging LLP, claims he was fired by the company after 26 years on the job. Jordan also alleges that the company spread rumors that he embezzled money from the company during his time with them. The Tulare County man was awarded close to $5 million after taking his accusations against the country’s largest citrus supplier to court.  

The federal district court awarded Jordan almost $5 million in damages on October 10th in response to the defamation and wrongful termination lawsuit he filed against his former employer. Jordan’s former employer, Wonderful Citrus Packaging LLP, is best known for their boxes of Halo brand mandarin oranges that are known for being small and easy to peel.

Jordan, the plaintiff, filed the lawsuit in March 2018 in the U.S. District Court for the Eastern District of California. The suit listed his former employer, Wonderful Citrus, as the Defendant on the grounds of age discrimination, wrongful termination, breach of contract, defamation of character, emotional distress, and a violation of California’s good faith and fair dealing laws.

According to court documents, Jordan was fired on November 3rd, 2017 despite being a loyal employee for over 25 years. When he was fired, he was 54 years old and was not offered any valid explanation for the termination. He claims he was replaced by someone who was significantly younger with less experience and qualifications. Before Jordan was fired, the company sent two emails out to 3-400 employees each notifying them of Jordan’s termination and clearly indicating that there had been criminal activity involved (i.e. theft and embezzlement). Allegedly, the company continued spreading rumors to about Jordan being involved in criminal activity to justify the firing including rumors of changing timecards and stealing from the company.

The plaintiff’s legal counsel argues that the company engaged in a “sham investigation” involving threats and coercion. By using these underhanded tactics, the company fabricated a reason for Jordan’s termination. Jordan’s legal counsel indicated that the company employed threats of termination when interviewing Jordan’s co-workers and subordinates. One employee being interviewed about the situation even passed out from anxiety.

Wonderful argues that Jordan was previously a loyal employee, but eventually became “self-dealing.” The company insists that it obtained info suggesting Jordan was stealing from the company in 2017. They claim that when they found out about the theft, they responded by terminating his employment. The company insists that Jordan’s suit is frivolous and a further attempt to support his own bad behavior.

 Evidence was presented for four weeks during a jury trial conducted by Judge Anthony W. Ishii. For four weeks evidence was presented revealing Wonderful Citrus did not have reasonable grounds for their accusations and that they did not have proof of their accusations. They made no offer to attempt to settle before the verdict of the jury was announced.

The jury found that the company was not in breach of contract. They also found that the company’s statements about Jordan were false and damaging to his reputation in his industry. They specifically found that the company did not determine the truth of the embezzlement accusation and that they acted with ill will towards the plaintiff when they made the accusations about stealing and embezzlement from the company.

If you have been wrongfully terminated from your job, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.

Canyons Aquatic Club Facing Wrongful Termination, Whistleblower Retaliation and Sexual Assault Claims

A former swim coach, David Kuck, is suing Canyons Aquatic Club alleging wrongful termination, whistleblower retaliation, and sexual assault. Canyons Aquatic Club hired Kuck as their head swim coach in July 2017. He started work with the organization the next month. Kuck came to Canyons Aquatic Club from SwimMAC, a nationally recognized club located in North Carolina. Kuck claims he was fired from his position with the Canyons Aquatic Club for blowing the whistle on crimes that implicate the late Jeremy Anderson, child sex crimes suspect.

Kuck’s attorneys filed suit in Los Angeles Superior Court. They have stated publicly that the case is textbook whistleblower retaliation. President of the Canyons Aquatic Club, Carole Horst, responded to claims that personnel matters at the organization are “private matters” and they do not provide comment on private matters. According to the lawsuit, the club and its parent organization, USA Swimming, failed to respond to multiple complaints Kuck lodged regarding “predator” coach Jeremy Anderson, known commonly as Jay Anderson. According to the lawsuit, Kuck noticed and reported Anderson’s abusive behavior almost immediately after joining the swim club staff.

Anderson was an accomplished SCV swim coach. He was taken into custody by U.S. Marshals in Costa Rica last June on suspicion of performing lewd acts with a child. He died shortly after being taken into custody.

Kuck claims he was fired after he notified the Canyons Aquatic Club and USA Swimming and the regional arm over USA Swimming, Southern California Swimming, of a number of incidents in which Anderson committed acts of sexual abuse and other forms of abuse towards minor male swimmers.

According to Kuck’s lawsuit, he reported multiple instances of abuse (including sexual abuse) and despite these notifications, the club board refused to act unless they were told to do so directly by their supervising entity, USA Swimming. Kuck alleges that during this time period a former board member advised him that USA Swimming and the Canyons Aquatic Club board members were aware of Anderson’s conduct, but would not take action to stop it.   

Kuck took the matter outside the group, contacting officials from the Center for Safe Sport and Southern California Swimming in mid-November 2017. He sought immediate assistance and action regarding Anderson’s sexual abuse towards minor swimmers at the club. At the end of 2017, the board gave Kuck approval to terminate Anderson, but only after they were notified that the Sheriff’s Department was planning to carry out immediate action against Anderson at College of the Canyons where the swim club is located. While approval for termination of Anderson was granted, the board also forbid Kuck from vocalizing his concerns or notifying any staff or club member of the allegations or concerns. The board claimed the gag order was because they feared attracting lawsuits or inspiring more victims to come forward. 

As the investigation continued, more evidence of the sexual abuse was discovered. The criminal investigation into Anderson was made public in June 2019.

Retaliation against Kuck for whistle blowing allegedly began in December 2017. The club refused to pay his bonuses even though they were doing so for other employees. Right before he was terminated, Kuck claims he discovered the club had been operating illegally as a suspended California corporation. He notified the board. Kuck claims his refusal to stay silent as the club continued to operate illegally in violation of California law was another factor leading to his termination.

When Kuck approached the board regarding the culture that enabled past instances of abuse committed by Anderson, and other instances of bullying that continued to run rampant throughout the club membership, he was terminated. His wife, another coach on staff, was also terminated. The club also terminated the memberships of the Kuck’s three children. Kuck was not presented with his final paycheck upon termination, provide him with bonuses or vacation pay he was owed, or issue his final wage statement.

If you need to discuss how to file a wrongful termination lawsuit, please get in touch with Blumenthal Nordrehaug Bhowmik DeBlouw LLP. Experienced employment law attorneys are ready to assist you in any one of various law firm offices located in San Diego, San Francisco, Sacramento, Los Angeles, Riverside, and Chicago.